USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1210
SHARON L. PARKER,
Plaintiff, Appellee,
v.
CITY OF NASHUA, NEW HAMPSHIRE, ET AL.,
Defendants, Appellees.
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F. SHEEHAN, IN HIS OFFICIAL CAPACITY AS
A NASHUA POLICE OFFICER,
Defendant, Appellant.
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No. 94-1272
SHARON L. PARKER,
Plaintiff, Appellant,
v.
CITY OF NASHUA, NEW HAMPSHIRE, ET AL.,
Defendants, Appellees.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Shane Devine, Senior U.S. District Judge]
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Before
Selya, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Boudin, Circuit Judge.
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Thomas Quarles, Jr. and Dyana J. Crahan with whom Robert E.
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McDaniel and Devine, Millimet & Branch, P.A. were on briefs for
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defendants.
Francis G. Murphy, Jr. with whom Joseph F. Keefe, Kathryn B.
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Johnston, and Hall, Hess, Kenison, Stewart, Murphy & Keefe, P.A. were
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on briefs for plaintiff.
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February 5, 1996
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BOUDIN, Circuit Judge. In the district court, Sharon
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Parker was awarded substantial damages by a jury which found
that a police officer had violated her rights in the course
of an arrest. On this appeal, almost the only issue
presented, and certainly the only one warranting discussion,
is a claim that the district court erred in describing for
the jury the state disorderly conduct statute used by the
police officer to justify Parker's arrest. Because the issue
is narrowly framed, our description of the factual background
is brief.
Late in the evening of February 10, 1990, Parker
returned by car to her parents' house in downtown Nashua, New
Hampshire, from a dance at the local Moose Club. There were
six passengers in the car: Parker and her husband, Parker's
parents, her sister, and her sister's companion. The
companion owned and drove the vehicle. Parker has a disorder
affecting the left side of her body; and for this reason she
does not drink alcohol.
When the car reached the house, Parker and her husband
entered their own car, which had been left in front of the
house prior to the dance. At that point a police cruiser
driven by officer James Lima pulled up behind the Parkers'
car and flashed its light. The officer previously had been
parked by the side of the road when Parker and her companions
drove by, en route from the dance to the home of the Parker
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parents. The officer later testified that he thought that
the car's driver had committed traffic violations. It is
unclear whether the officer confused the two cars, but when
Parker got out of her own vehicle in response to the flashing
lights, the officer asked for her license and registration.
At this point, the police version of what occurred
begins to diverge sharply from that of Parker and her
companions. According to Lima, he was assaulted by Parker's
husband, Parker's sister, and the sister's companion. Lima
pressed a button calling for emergency backup. Two other
officers arrived. The struggle continued and Parker's
husband was buffeted. Ultimately, the husband, sister, and
sister's companion were arrested. By this time, Parker's
parents and others had come out to the scene.
Additional police arrived, including Officer Frank
Sheehan, who eventually arrested Parker herself. Officer
Sheehan's later testimony was that he saw Parker standing in
the road yelling at the other officers, using obscenities.
He told her to quiet down and leave the road. According to
Sheehan, eventually Parker moved to the sidewalk but
continued to yell. At that point Sheehan said he arrested
Parker for disorderly conduct.
Parker's description of events is quite different. In
her own later testimony, she denied being in the road and
claimed to have said to Officer Sheehan only that she wanted
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to go to the police station with her husband who was being
arrested. Sheehan, she says, responded with an obscenity,
declaring that the police car was not a taxi. Parker
testified that she simply turned away and walked toward the
house, saying to her mother that this was "the most
unbelievable thing I've ever seen."
In all events, Parker was handcuffed, offering no
resistance. She later offered medical testimony that her
shoulder and upper arm, already susceptible to injury because
of her medical condition, were wrenched during the
handcuffing. Then, en route to the police cruiser, she says
that she was pulled or tugged by the handcuffs so that she
fell on the ground and was then dragged by the police over a
snow bank. The police version is that this was an accidental
fall.
Parker was arrested for and charged with disorderly
conduct. The charges were eventually dropped by the
authorities. In due course, she brought the present action
in district court against the City of Nashua, the Nashua
Police Department and various officers including Sheehan.
Her federal claim under 42 U.S.C. 1983 was based on her
rights under the Fourth and Fourteenth Amendments to be free
from unreasonable seizure. She also asserted state law
claims based on her allegedly unlawful arrest. The case was
tried before a jury in January and February 1994.
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At the trial, Parker and the police offered their
respective versions of what had happened. There was
testimony from Parker, Sheehan and a number of other
witnesses on both sides who had been present at the scene.
Parker, who was a government social worker, proffered medical
and economic evidence to support a very substantial award of
damages. The jury returned a large verdict for Parker
against Sheehan (although smaller than requested), finding
specially that Parker's rights under both federal and state
law had been infringed.
On this appeal, defendants' central claim is that the
district court erred in failing to charge the jury properly
as to the offense for which Parker was arrested. The premise
of Parker's claim was that she had been arrested even though
the police lacked probable cause to believe that she had
committed or was committing an offense. See Michigan v.
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DeFillippo, 443 U.S. 31, 36 (1979). To decide whether the
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police had probable cause, the jury had to match what they
found to be the facts--more accurately, the reasonable
perception of police as to those facts--against the elements
of the offense.
The New Hampshire disorderly conduct statute, N.H. Rev.
Stat. Ann. 644:2, comprises the misdemeanor offense
labelled disorderly conduct; but the statute, reprinted in an
appendix to this opinion, describes nine different ways of
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committing the offense and covers over a page of single-
spaced text. Several of the offenses described in the
statute were arguably pertinent to the police version of
events; others--e.g., interference with a firefighting
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operation or obstructing the entrance to a public building--
had nothing whatever to do with the arrest.
A reading of Sheehan's trial testimony strongly suggests
that the disorderly conduct offense that he deemed Parker to
have committed fell under section III(a) of the disorderly
conduct statute. That provision is directed at anyone who
purposely causes a breach of the peace, annoyance or alarm,
or reckless risk of these consequences, by making loud or
unreasonable noises in a public location. Sheehan's
testimony at trial emphasized the loud noises that he said
Parker was making and the risk that the gathering crowd would
be incited.
It is difficult to be sure just how the parties treated
the matter when presenting their case, because parts of the
transcript (e.g., the closing statements) have not been
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provided by defendants. But it is clear that when it came to
charging the jury, the defense in its requests to charge
asked the judge to read almost all of the disorderly conduct
statute to the jury. The trial judge confined his charge to
the loud noise offense described in section III(a). The
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court's refusal to charge more broadly is now assigned as
error.
We will assume for purposes of this appeal that Sheehan
was entitled at trial to justify his arrest of Parker under
any provision of the disorderly conduct statute that the
evidence at trial might show to have applied to her conduct.
There was some evidence from the police witnesses to suggest
that Parker used obscenities and refused to comply with a
lawful police order; it is more doubtful that the evidence
showed any obstruction of traffic. Thus a request that the
jury be instructed as to at least two of these other
disorderly conduct offenses was arguably proper.1
An initial difficulty is that Fed. R. Civ. P. 51
provides that "[n]o party may assign as error . . . the
failure to give an instruction unless that party objects
thereto before the jury retires to consider its verdict,
stating distinctly the matter objected to and the grounds of
the objection." Further, to satisfy Rule 51 "the judge must
be told precisely what the problem is, and as importantly,
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what the attorney would consider a satisfactory cure." Linn
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v. Andover Newton Theological School, Inc., 874 F.2d 1, 5
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(1st Cir. 1989). And the lawyer must propose a lawful
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1We say "arguably" because the problem of justifying an
arrest on grounds not invoked at the time becomes especially
complicated where some of the facts were known only to other
officers. See generally 2 W. LaFave, Search and Seizure
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3.5(c) (2d ed. 1987); id. 5.1(e).
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instruction or correction, and not one that substantially
overstates the law in that party's favor. Scarfo v.
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Cabletron Systems, Inc., 54 F.3d 931, 944 (1st Cir. 1995).
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In this instance, after the district court instructed
the jury, defense counsel promptly objected to the failure to
read the "entire disorderly conduct statute" to the jury.
When the court said that Parker had been charged only with
violating section III(a) and "[n]obody claims she was
violating the rest of it," defense counsel responded:
We adduced testimony in evidence that she
violated that section where she was
declining to comply with a reasonable
order of a police officer, which I think
is toward the end of the substantive
sections of it.
The trial judge said that he did not think that "it"
(presumably referring to the evidence) would support such a
charge, noted defense counsel's objection, and moved on.
The defense gave the district court no justification for
reading the entire statute to the jury and so failed to
tender a legally correct instruction. This requirement is no
formality: the trial court, especially in hearing objections
after the instructions have been given, is making on-the-spot
choices; and when the instruction offered by the lawyer is
manifestly overbroad, the district judge may reject without
assuming the burden of editing it down to save some small
portion that may be viable. Chase v. Consolidated Foods
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Corp., 744 F.2d 566, 570 (7th Cir. 1984).
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Certainly in this case the defense request that the
court read to the jury almost all of the disorderly conduct
statute was properly denied. A number of the offenses listed
had no possible relevance to the case. On appeal, defendants
make no attempt to show otherwise. To allow the jury to
wander aimlessly among the various paragraphs would have been
an invitation to confusion and would be no more proper than
reading to the jury in a criminal case a description of
offenses with which the defendant was not charged.
The story of the requested instruction is not over.
During jury deliberations, the jury submitted a question,
"Can we got a copy of the disorderly conduct law; i.e., what
constitutes this violation." At this point, defense counsel
again stated that the entire statute should be read,
asserting that the question for the jury was "whether
probable cause existed for the officer on the scene to
believe that the plaintiff committed the offense of
disorderly conduct." The court refused to read the whole
statute, and instead reread its original instruction to the
jury. Defense counsel then objected:
Your Honor, we simply object to the Court
not describing all the circumstances in
the statute where a person can commit
disorderly conduct or when an officer
could reasonably believe that disorderly
conduct was committed, especially the
sections of the statute which relate to
engaging in tumultuous behavior or
knowingly refusing to comply with the
lawful order of a peace officer to move
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from any public place, which by itself is
enough, or directing obscene language or
obstructing vehicular or pedestrian
traffic on the street, all of which there
is testimony on.
This court has not decided whether an initial request
for an instruction, not properly presented, can be
resurrected by a proper request made when the jury is
reinstructed. Surely when a new instruction is given to the
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jury during its deliberations, a new opportunity exists to
object or propose changes; but few cases address what happens
when the jury is simply given the original instruction again
and the lawyer now makes an objection, or seeks an
alternative, that was not properly presented before. Wright
& Miller treat the reread instruction as reopening the matter
entirely, but the case law is sparse, and we are less certain
that any blanket rule governs. See generally 9 A. Wright &
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C. Miller, Federal Practice and Procedure 2553, at 516
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(1995).
In all events, the new request made here at the time of
rereading repeated the original unjustified request that the
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entire disorderly conduct statute be read to the jury. This
time defense counsel enlarged the number of specific offenses
for which he claimed to find support in the evidence,
referring to tumultuous behavior, refusing to obey a lawful
order, making obscene remarks and obstructing traffic--"all
of which [he said] there is testimony on." But once again,
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the request that the entire statute be read is far broader
than anything to which counsel was entitled.
It is possible, with great generosity, to construe
defense counsel's oral objections--both at the time of the
original instruction and at its rereading--as an alternative
request to charge the jury only as to the specific disorderly
conduct provisions for which the defense claimed there was
evidence (e.g., refusal to obey a lawful order). Standing
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alone, this would not be enough because it is counsel's
obligation to communicate clearly with the judge in seeking
instructions, Scarfo, 54 F.3d at 947, and counsel's request
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was far from clear. On the other hand, there was some
indication that the trial judge did consider whether other
portions of the disorderly conduct statute should be read and
thus was not entirely misled by the garbled objection.
Even if we treated the request for a more limited
instruction as properly preserved (and this is a stretch),
the failure to give the more limited instruction was patently
harmless in this case. Vera-Lozano v. International
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Broadcasters, 50 F.3d 67, 71 (1st Cir. 1995). Our reason is
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not lack of evidence. Although we can understand the trial
judge's doubts on this point, Sheehan can make a colorable
claim that even his own testimony supported the conclusion
that Parker yelled obscenities, refused to move promptly out
of the street, or both. When one adds fragments of consonant
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testimony from other officers, there are at least two
provisions of the disorderly conduct statute under which
Parker could have been charged, apart from excessive noise.
What persuades us that the error (if any) is harmless is
this: Parker on the one hand and the police on the other
gave coherent but directly conflicting versions of the events
relating to Parker. Those versions were each of a piece:
Sheehan, with some support from other officers, said that
Parker had been standing in the street yelling at police,
used swear words, and did not promptly obey an order to move
onto the sidewalk and shut up. Parker's version, supported
by other witnesses, is that she had been standing behind one
of the parked cars, had caused no disturbance and had done
nothing more than make a properly phrased request to the
officer to accompany her husband.
The jury heard all this testimony from the witnesses,
and obviously accepted Parker's version of events. It is to
us inconceivable that the jury would have decided this
conflict of fact in favor of the defense if only it had been
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told that several other provisions of the disorderly conduct
might also have been violated if the police testimony were
accepted. The main thrust of Sheehan's testimony was
Parker's standing in the street yelling, despite his efforts
to get her to stop; the other violations were at best
ancillary. There is no plausible way that this jury, having
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rejected the essence of the police testimony, would or could
nevertheless have found in Sheehan's favor based on a
slightly fuller account of what the statute provided.
Our conclusion is not based on any judgment of our own
as to what the evidence proved to have happened. Although
Parker's brief portrays the police engaged in something close
to a police riot, there is some indication that others in
Parker's party may have been at least partly at fault for the
disturbance. But the evidence was certainly adequate to
support the jury verdict in favor of Parker on her own claim
of wrongful arrest, and the verdict was not affected by the
omission of a more complete instruction on disorderly
conduct.
The defense brief also contends that the district court
erred in failing to give an instruction, in relation to the
state-law claims made by Parker, that the police were
privileged to use reasonable force to prevent perceived harm
to officers or the public. Although the privilege
instruction was requested by the defense, no proper objection
to its omission was made after the district court gave its
charge and omitted the requested paragraph. In this
instance, the failure to object properly is beyond dispute.
The omitted instruction did not lead to a miscarriage of
justice, so there is no basis for a claim of plain error
under United States v. Olano, 507 U.S. 725 (1993).
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Defendants have urged, contingently, that the new trial
they request should be limited to liability. Parker has
filed a contingent cross appeal urging that in any new trial,
she should be allowed to introduce additional evidence in her
favor--e.g., that the police sought to obtain a release from
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her--which the district court did not permit her to offer in
the original trial. Because we affirm the judgment in favor
of Parker, these contingent requests need not be reached.
Affirmed.
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APPENDIX
RSA 644:2 Disorderly Conduct. A person is guilty of
RSA 644:2 Disorderly Conduct.
disorderly conduct if:
I. He knowingly or purposely creates a condition which
is hazardous to himself or another in a public place by any
action which serves no legitimate purpose; or
II. He:
(a) Engages in fighting or in violent, tumultuous or
threatening behavior in a public place; or
(b) Directs at another person in a public place obscene,
derisive, or offensive words which are likely to provoke a
violent reaction on the part of an ordinary person; or
(c) Obstructs vehicular or pedestrian traffic on any
public street or sidewalk or the entrance to any public
building; or
(d) Engages in conduct in a public place which
substantially interferes with a criminal investigation, a
firefighting operation to which RSA 154:17 is applicable, the
provision of emergency medical treatment, or the provision of
other emergency services when traffic or pedestrian
management is required; or
(e) Knowingly refused to comply with a lawful order of a
peace officer to move from any public place; or
III. He purposely causes a breach of the peace, public
inconvenience, annoyance or alarm, or recklessly creates a
risk thereof, by:
(a) Making loud or unreasonable noises in a public
place, or making loud or unreasonable noises in a private
place which can be heard in a public place or other private
places, which noises would disturb a person of average
sensibilities; or
(b) Disrupting the orderly conduct of business in any
public or governmental facility; or
(c) Disrupting any lawful assembly or meeting of persons
without lawful authority.
IV. In this section:
(a) "Lawful order: means:
(1) A command issued to any person for the purpose
of preventing said person from committing any
offense set forth in this section, or in any
section of Title LXII or Title XXI, when the
officer has reasonable grounds to believe that
said person is about to commit any such
offense, or when said person is engaged in a
course of conduct which makes his commission
of such an offense imminent; or
(2) A command issued to any person to stop him
from continuing to commit any offense set
forth in this section, or in any section of
Title LXII or Title XXI, when the officer has
reasonable grounds to believe that said person
is presently engaged in conduct which
constitutes any such offense.
(b) "Public place" means any place to which the public
or a substantial group has access. The term
includes, but is not limited to, public ways,
sidewalks, schools, hospitals, government offices
or facilities, and the lobbies or hallways of
apartment buildings, dormitories, hotels or motels.
V. Disorderly conduct is a misdemeanor if the offense
continues after a request by any person to desist; otherwise,
it is a violation.
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