Glover v . Crawford CV-94-026-M 05/24/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Neil Glover, Plaintiff v. Civil Action N o . 94-26-M David Crawford, Defendant
O R D E R
Defendant, through the Office of the Attorney General, has
renewed his trial motion for judgment as a matter of law on the
dubious proposition that a jury's comment in an unsolicited note
to the court during deliberations (related to an impending
deadlock) should be construed as a special verdict entitling him
to qualified immunity as a matter of law. The court disagrees.
In any event, defendant waived his right (if any) to rely on the
contents of the jury's note as a "special verdict" when defense
counsel failed, prior to the jury's dismissal, to move the court
to submit a special question designed to establish, with the
requisite and customary indicia of clarity and reliability
associated with verdicts, the jury "finding" that they now
assert. Discussion
An extended review of the facts of this case is not
necessary. It is sufficient to note that plaintiff claims
defendant, a New Hampshire State Trooper, arrested him for
disorderly conduct and public drunkenness during an annual motorcycle weekend event, without probable cause, and later
intervened to thwart his release on bail and to effect his
further detention for several hours in "protective custody"
(allegedly, because plaintiff was inebriated), again without
probable cause. Plaintiff's version of the relevant facts
differed markedly from defendant's version, and the jury could
not resolve those discrepancies.
The facts pertinent to the pending motion are as follows.
On January 1 1 , 1996, after the jury had begun its deliberations,
it submitted two written questions. After meeting with counsel
to discuss an appropriate response, the court convened the
parties and jury in the courtroom on the morning of January 1 2 .
The court responded to the jury's questions on the record and the
jurors returned to their deliberations. At that point, defense
counsel moved for a mistrial on grounds that the jury was
hopelessly confused. The motion was denied.
2 Later that afternoon, the jury sent another note to the
court that read:
Judge as of 3:00 p.m., w e , the jury are unable to reach a unanimous decision based on the evidence. We would at this time like to be given further instructions.
The court reconvened the parties and jury in the courtroom and instructed the jury on its duty to deliberate and reach a unanimous verdict if the jurors could do so in good conscience. The jury was asked to return to the deliberation room to consider whether a unanimous verdict was attainable. Defense counsel again moved for a mistrial on grounds of jury deadlock. That motion was denied.
At the end of the day, the jury sent another note to the
court (Question # 4 , document n o . 4 6 ) , which read:
W e , the jury believe Sergeant Crawford had probable cause to arrest Neil Glover for disorderly conduct + send him to station W . We are divided on the charge of intoxication.
After discussion with counsel in chambers, the court responded to
the note with a written question:
3 Do you believe you will be able to reach a unanimous verdict if you continue to deliberate for a reasonable time, o r , are you satisfied that further deliberation will not likely lead to unanimity?
Shortly thereafter, the jury responded by note, as follows:
W e , the jury have reached a deadlock. We do not feel that time will change our individual views.
Accordingly, the parties and jury were again reconvened in the courtroom, the court declared a mistrial, and dismissed the jurors with appreciation for their efforts. Defendant's counsel stood mute; they did not object to the mistrial (no doubt because they had twice requested that result earlier). Importantly, however, they did not request the court to submit a limited special verdict question to the jury based upon the comments in the note marked Jury Question # 4 . The case was subsequently scheduled for retrial.
At the final pretrial conference in chambers earlier this
week, defense counsel pressed their previously rejected claim
that defendant i s , as a matter of law, entitled to qualified
immunity. Counsel's argument is based in large measure on the
jury's note, in which it stated "We the jury believe Sergeant
4 Crawford had probable cause to arrest Neil Glover for disorderly conduct . . . ."1
There are obvious flaws in defense counsel's position.
First, the jury's note was not in response to any special question put to the jurors; it was unsolicited and related to the
status of their continuing deliberations at a particular point in
the deliberative process. The note followed the court's request
that the jurors return to consider whether a unanimous verdict
might be achieved, and, in context, it simply informed the court
that the jury had reached an impasse. While the jury should not
have disclosed the nature of the impasse then prevailing or where
they stood at that point in their deliberations, it cannot be
said that the deliberative process was completed. Moreover, some
jurors may have "believed" (or perhaps even "agreed") that Crawford had probable cause to arrest plaintiff for disorderly
1 Even if the jury's informal note were treated as a special verdict in defendant's favor relative to plaintiff's initial arrest and referral for processing, that alone might not operate to relieve defendant of liability for what plaintiff alleges was defendant's subsequent intervention, at the processing center, for the purpose of thwarting plaintiff's impending release on bail on the disorderly conduct charge and his causing plaintiff, without any basis in fact, to be detained for several more hours in the county jail in "protective custody" status on an allegedly bogus charge of public intoxication.
5 conduct merely for the purpose of moving the jury's discussions
from the initial arrest to defendant's potential liability for
plaintiff's extended detention on the allegedly fabricated
intoxication charge.
The note is also unreliable as a "finding" or a "special verdict" because: (1) it was not returned with the requisite formality in open court; (2) the jurors did not state that they unanimously agreed (as opposed to "believed") that, based on a preponderance of the evidence, defendant had probable cause to arrest plaintiff for disorderly conduct;2 (3) the court did not confirm (through the foreperson) that each juror concurred in the "verdict" or even that the jury actually intended the note to operate as a verdict, rather than simply an informative statement explaining their inability, at that particular moment, to return a verdict; and (4) plaintiff had no opportunity to have the
2 The jury's comment that "We believe Sergeant Crawford had probable cause . . . ." is a long way from, for example, "We unanimously agree by a preponderance of the evidence that . . . ." Even if we were to dispense with the customary formalities associated with the return of jury verdicts, which are, of course, designed to insure clarity and reliability, in my judgment the jury's statement here was at best tentative, not final, and not made under any circumstances from which the requisite degree of clarity and certitude necessary for a proper civil verdict could be inferred.
Free access — add to your briefcase to read the full text and ask questions with AI
Glover v . Crawford CV-94-026-M 05/24/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Neil Glover, Plaintiff v. Civil Action N o . 94-26-M David Crawford, Defendant
O R D E R
Defendant, through the Office of the Attorney General, has
renewed his trial motion for judgment as a matter of law on the
dubious proposition that a jury's comment in an unsolicited note
to the court during deliberations (related to an impending
deadlock) should be construed as a special verdict entitling him
to qualified immunity as a matter of law. The court disagrees.
In any event, defendant waived his right (if any) to rely on the
contents of the jury's note as a "special verdict" when defense
counsel failed, prior to the jury's dismissal, to move the court
to submit a special question designed to establish, with the
requisite and customary indicia of clarity and reliability
associated with verdicts, the jury "finding" that they now
assert. Discussion
An extended review of the facts of this case is not
necessary. It is sufficient to note that plaintiff claims
defendant, a New Hampshire State Trooper, arrested him for
disorderly conduct and public drunkenness during an annual motorcycle weekend event, without probable cause, and later
intervened to thwart his release on bail and to effect his
further detention for several hours in "protective custody"
(allegedly, because plaintiff was inebriated), again without
probable cause. Plaintiff's version of the relevant facts
differed markedly from defendant's version, and the jury could
not resolve those discrepancies.
The facts pertinent to the pending motion are as follows.
On January 1 1 , 1996, after the jury had begun its deliberations,
it submitted two written questions. After meeting with counsel
to discuss an appropriate response, the court convened the
parties and jury in the courtroom on the morning of January 1 2 .
The court responded to the jury's questions on the record and the
jurors returned to their deliberations. At that point, defense
counsel moved for a mistrial on grounds that the jury was
hopelessly confused. The motion was denied.
2 Later that afternoon, the jury sent another note to the
court that read:
Judge as of 3:00 p.m., w e , the jury are unable to reach a unanimous decision based on the evidence. We would at this time like to be given further instructions.
The court reconvened the parties and jury in the courtroom and instructed the jury on its duty to deliberate and reach a unanimous verdict if the jurors could do so in good conscience. The jury was asked to return to the deliberation room to consider whether a unanimous verdict was attainable. Defense counsel again moved for a mistrial on grounds of jury deadlock. That motion was denied.
At the end of the day, the jury sent another note to the
court (Question # 4 , document n o . 4 6 ) , which read:
W e , the jury believe Sergeant Crawford had probable cause to arrest Neil Glover for disorderly conduct + send him to station W . We are divided on the charge of intoxication.
After discussion with counsel in chambers, the court responded to
the note with a written question:
3 Do you believe you will be able to reach a unanimous verdict if you continue to deliberate for a reasonable time, o r , are you satisfied that further deliberation will not likely lead to unanimity?
Shortly thereafter, the jury responded by note, as follows:
W e , the jury have reached a deadlock. We do not feel that time will change our individual views.
Accordingly, the parties and jury were again reconvened in the courtroom, the court declared a mistrial, and dismissed the jurors with appreciation for their efforts. Defendant's counsel stood mute; they did not object to the mistrial (no doubt because they had twice requested that result earlier). Importantly, however, they did not request the court to submit a limited special verdict question to the jury based upon the comments in the note marked Jury Question # 4 . The case was subsequently scheduled for retrial.
At the final pretrial conference in chambers earlier this
week, defense counsel pressed their previously rejected claim
that defendant i s , as a matter of law, entitled to qualified
immunity. Counsel's argument is based in large measure on the
jury's note, in which it stated "We the jury believe Sergeant
4 Crawford had probable cause to arrest Neil Glover for disorderly conduct . . . ."1
There are obvious flaws in defense counsel's position.
First, the jury's note was not in response to any special question put to the jurors; it was unsolicited and related to the
status of their continuing deliberations at a particular point in
the deliberative process. The note followed the court's request
that the jurors return to consider whether a unanimous verdict
might be achieved, and, in context, it simply informed the court
that the jury had reached an impasse. While the jury should not
have disclosed the nature of the impasse then prevailing or where
they stood at that point in their deliberations, it cannot be
said that the deliberative process was completed. Moreover, some
jurors may have "believed" (or perhaps even "agreed") that Crawford had probable cause to arrest plaintiff for disorderly
1 Even if the jury's informal note were treated as a special verdict in defendant's favor relative to plaintiff's initial arrest and referral for processing, that alone might not operate to relieve defendant of liability for what plaintiff alleges was defendant's subsequent intervention, at the processing center, for the purpose of thwarting plaintiff's impending release on bail on the disorderly conduct charge and his causing plaintiff, without any basis in fact, to be detained for several more hours in the county jail in "protective custody" status on an allegedly bogus charge of public intoxication.
5 conduct merely for the purpose of moving the jury's discussions
from the initial arrest to defendant's potential liability for
plaintiff's extended detention on the allegedly fabricated
intoxication charge.
The note is also unreliable as a "finding" or a "special verdict" because: (1) it was not returned with the requisite formality in open court; (2) the jurors did not state that they unanimously agreed (as opposed to "believed") that, based on a preponderance of the evidence, defendant had probable cause to arrest plaintiff for disorderly conduct;2 (3) the court did not confirm (through the foreperson) that each juror concurred in the "verdict" or even that the jury actually intended the note to operate as a verdict, rather than simply an informative statement explaining their inability, at that particular moment, to return a verdict; and (4) plaintiff had no opportunity to have the
2 The jury's comment that "We believe Sergeant Crawford had probable cause . . . ." is a long way from, for example, "We unanimously agree by a preponderance of the evidence that . . . ." Even if we were to dispense with the customary formalities associated with the return of jury verdicts, which are, of course, designed to insure clarity and reliability, in my judgment the jury's statement here was at best tentative, not final, and not made under any circumstances from which the requisite degree of clarity and certitude necessary for a proper civil verdict could be inferred.
6 individual jurors polled in open court to verify that each juror
understood and intended that the note would constitute a final
jury determination on the probable cause issue in compliance with the court's charge.3
Defense counsel point to Thorpe v . Mutual of Omaha Ins. Co.,
984 F.2d 541 (1st Cir. 1993) in support of their rather novel
proposition that a jury's comments in notes to the court during
the deliberation process are properly dissected and analyzed to
glean "findings" and "verdicts" following the declaration of a
mistrial, notwithstanding the complete absence of any request
that a special question be put to the jury for return in the
traditional manner. Simply stated, Thorpe provides no support
for defendant's argument. In Thorpe the plaintiff challenged the
trial judge's submission of special questions to an apparently
3 The Federal Rules of Civil Procedure, unlike their criminal counterpart, do not provide for the polling of a jury as a matter of right. C f . Fed. R. Crim. P. 31(d). Nevertheless, courts generally agree that, in the civil context, whether to grant a request to poll the jury is normally left to the trial court's sound discretion. Santiago Hodge v . Parke Davis & Co., 909 F.2d 6 2 8 , 631 n.1 (1st Cir. 1990). Following the return of a jury verdict, it is this court's practice to ask counsel if they would like the jury to be polled. The court would, of course, have followed that practice in this case and, had the jury returned a verdict or even if it had only responded to a special question, the court would have honored a request that the jury be polled.
7 deadlocked jury. The jury in that case returned answers to the
special questions. The trial judge, after declaring a mistrial
due to deadlock and dismissing the jury, then entered judgment as
a matter of law based in part on the jury's formal responses to
the special questions.
On appeal, the First Circuit noted that Fed. R. Civ. P. 49
permits special verdicts in lieu of general verdicts, "and while
Rule 49 does not specifically address the submission of questions
to a jury after a deadlock, neither does it expressly preclude
this practice." Id., at 544-45. Because the plaintiff had not
raised the issue before the district court, the court of appeals
treated the matter as waived. Nevertheless, the court made it
clear that submitting special questions to a jury after a
deadlock is not a clear violation of the Federal Rules. Id.
But, nowhere in Thorpe is it even hinted that a statement made
casually by a jury in the form of a note to a trial judge during
deliberations and related to an impending deadlock is the
equivalent of a special verdict.
In this case, although they easily could have done s o ,
defense counsel did not ask for special questions to be put to
8 the jury after deadlock; no supplemental questions were actually
put to the jury; and no responses to the special verdict form
which was submitted to the jury were returned. Defense counsel
have cited no other authority to support their claim that jury
questions or notes should function as acceptable substitutes for
special verdicts after a deadlock has resulted in a mistrial and
the jury has been dismissed.
I decline to construe the jury's note as a "finding" or as a
"special verdict" resolving the factual disputes in this case,
basically because the note completely lacks the requisite
formality and concomitant indicia of clarity and reliability of a
special verdict. Since the availability of a qualified immunity
defense in this case depends on resolution of factual issues,
those factual issues must properly be resolved by a jury, in
accordance with the court's instructions.
In addition, as mentioned above, defense counsel did not
request that the limited question (concerning probable cause to
arrest) be put to the jury after it was deadlocked but before it
was dismissed. If defense counsel purposely made no formal
request in order to later invoke the jury's note as a special
9 verdict equivalent, then they should of course be estopped from
relying on the note now, because doubt (and in the court's view
there is considerable doubt) about the reliability of the note's
content as a finding by a unanimous jury by a preponderance of
the evidence, in accordance with the court's instructions,
subject to verification by the court or plaintiff through
polling, could have been easily resolved by submission of a
precise question to the jury before it was dismissed. Otherwise,
defense counsel's inspirational but late construction of the
jury's note as a special verdict equivalent must be rejected on
grounds of waiver, since they failed to raise the issue before
the jury was dismissed (or even after the jurors had been
dismissed, but still remained within the court's control as an
"undispersed unit."), when the question could have been resolved
with a reasonable degree of certainty. Putnam Resources v .
Pateman, 958 F.2d 4 4 8 , 457 (1st Cir. 1992).
Defendant also advances other arguments to support his
asserted entitlement to summary judgment or judgment as a matter
of law based on qualified and absolute immunity. He suggests,
for example, that his role, if any, in causing plaintiff to be
detained in protective custody status due to alleged intoxication
10 was the equivalent of a prosecutor's decision to "charge" a citizen with a crime, hence entitling him to absolute immunity under the rule of Imbler v . Pachtman, 424 U.S. 409 (1976). 4
The Fourth Amendment right to be free from unreasonable
seizures of the person demands that an arrest be supported by
probable cause. Santiago v . Fenton, 891 F.2d 373, 383 (1st Cir.
1989) (citing Beck v . Ohio, 379 U.S. 89 (1964)). If at the time
4 In this case the plaintiff asserts that Sergeant Crawford had no basis for believing he was intoxicated and, in fact, did not believe that he was intoxicated. Moreover, plaintiff claims that when Crawford realized that another officer was about to release plaintiff on bail (on the disorderly conduct charge), Crawford intervened and directed that plaintiff be sent to the local jail in "protective custody" based on Crawford's allegedly unfounded assertion that plaintiff was intoxicated. Plaintiff claims that, at best, Crawford's actions were arbitrary and without a reasonable basis and, quite possibly, taken simply to punish plaintiff. Defense counsel would no doubt concede that if plaintiff's allegations are true, defendant would properly be held liable.
In any event, defendant's effecting an arrest, designating plaintiff as being intoxicated, and thereby causing him to be detained for an extended period under state law is not the equivalent of a prosecutor's decision to charge someone with a crime. Rather, defendant's actions are precisely what they appear to b e : a police officer's decision to take into custody and detain a citizen under color of state law. Accordingly, the critical question is whether a reasonable police officer in Sergeant Crawford's position could have believed that plaintiff was intoxicated and subject to protective custody detention under New Hampshire law. The answer to that question, again, will turn upon the jury's factual findings.
11 of plaintiff's arrest and/or at the time of his subsequent
detention for alleged intoxication, the facts and circumstances
within Sergeant Crawford's knowledge and of which he had
reasonably trustworthy information were not sufficient to warrant
a prudent officer's belief that plaintiff had committed or was
committing an offense, or was intoxicated within the meaning of
N.H. Rev. Stat. Ann. Ch. 172-B:3, then plaintiff would be
entitled to recover under 42 U.S.C. § 1983.
Defendant does not contest the fact that plaintiff's right
to be free from arrest and detention except upon probable cause
was clearly established. Similarly, defendant does not deny that
a reasonable officer in his position would have understood that
an arrest or detention in the absence of a reasonable belief in
the existence of probable cause would violate plaintiff's clearly
established Fourth Amendment rights.
The evidence offered at the first trial of this matter was
decidedly contradictory. A jury could reasonably return a
verdict in favor of either party, depending on whose version of
the facts it credits. If plaintiff and his witnesses are
believed, a jury could easily determine that Sergeant Crawford
12 was not acting in good faith and that he randomly singled
plaintiff out, arrested him merely to demonstrate an exercise of
authority in order to facilitate control over a gathering crowd,
sent him to the processing center, and later, realizing that
plaintiff was about to be released on bail in the usual course,
intervened in bad faith for the purpose of arbitrarily punishing
plaintiff (for asserting his intent to return and contest the
disorderly conduct charge) by causing him to be detained in the
county jail for several hours on a fabricated allegation of
intoxication.
Sergeant Crawford's entitlement to qualified immunity from
liability in this case depends on whether his version of the
facts or plaintiff's radically different version of the facts
surrounding the arrest and detention is credited. Curiously,
however, defense counsel continually (and erroneously) argue from
the premise that defendant's version of the facts must
necessarily be accepted as true, completely ignoring the fact
that plaintiff and his witnesses dispute defendant's testimony.
Plaintiff is entitled to present his version to a jury because if
his version of the facts is correct, liability will surely
follow. Whether defendant can invoke the protections afforded by
13 a qualified immunity defense will ultimately turn upon whose
account of the pertinent events the jury accepts as true.
Accordingly, before this court can determine whether Sergeant
Crawford is entitled to qualified immunity, a jury must first
resolve the significant disputes between the parties as to the
material facts.
Essentially, then, the court's rejection of defendant's
qualified immunity defense i s , at this stage, a "fact-based"
determination. However, to the extent the court has rejected
defendant's construction of the jury's note as a special verdict
entitling defendant to qualified immunity as a matter of law, the
decision is "law-based." See e.g. Johnson v . Jones, 115 S.Ct.
2151 (1995); Carter v . State of Rhode Island, 68 F.3d 9 (1st Cir.
1995).
Conclusion
Defendant's Renew[ed] Motion for Judgment as a Matter of Law
(document n o . 48) is denied. Defendant's Motion for Ruling on
Defendant's Motion for Judgment as a Matter of Law (document n o .
53) is denied as moot.
14 Defense counsel have advised the court that they intend to
file an appeal from the denial of their motion for judgment based
upon qualified and absolute immunity. The retrial of this
matter is currently set for June 4 , 1996. Should an appeal be
filed before that date, the trial will be continued and
rescheduled after the appeal is resolved.
SO ORDERED.
Steven J. McAuliffe United States District Judge
May 2 4 , 1996 cc: Paul J. Bennett, Esq. Frank Bruno, Esq. Ann F. Larney, Esq. Christopher P. Reid, Esq.