Bastien v. City of Worcester , 279 F.3d 10 ( 2002 )

United States Court of Appeals
For the First Circuit
No. 00-2224
DELANOT BASTIEN,
Plaintiff, Appellant,
v.
WILLIAM GODDARD,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Boudin, Chief Judge,
Coffin, Senior Circuit Judge,
and Torruella, Circuit Judge.
Aderonke O. Lipede, with whom Stephen B. Hrones and Hrones
& Garrity were on brief, for appellant.
Austin M. Joyce, with whom Edward P. Reardon was on brief,
for appellee.
February 1, 2002
COFFIN, Senior Circuit Judge. Appellant Delanot Bastien
claims that he is entitled to a new trial on his claim of
excessive force against appellee William Goddard because the
district court incorrectly instructed the jury that liability on
an excessive force claim depended upon a finding of "serious"
injury. We agree that the jury was improperly instructed and
that the error was not harmless. We therefore reverse and
remand for a retrial on that claim.
I. Factual Background
We briefly review the facts as the jury could have found
them, see Ramos v. Davis & Geck, Inc., 167 F.3d 727, 730 (lst
Cir. 1999), limiting our recitation to only so much of the
episode underlying this case as is necessary to set the stage
for our discussion. Appellant was ushered out of the Algiers
Night Club in Worcester, Massachusetts, in the early hours of
January 1, 1990 by four bouncers from the club and appellee, a
Worcester police officer who was assigned to the club that
night. The men told appellant that he had had too much to
drink, although he maintained that he had drunk only half a
beer. Appellant, who is black and of Haitian descent,
complained to the men that he was being unfairly ejected from
the club because of his race.
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Outside the club, verbal interaction between appellant and
the officer continued. A friend of appellant and another
acquaintance came out of the club, and appellant repeated his
allegation that he was unfairly forced to leave. Appellant
realized that he had left his coat inside, and someone went in
to retrieve it. A short time later, as appellant prepared to
leave the scene, he asked for appellee's name and told the
officer that he was going to the hospital for a blood test to
prove that he was not intoxicated. Some additional words were
exchanged,1 and appellee then placed appellant under arrest. He
was charged with disorderly conduct and disturbing the peace.
Appellant immediately complained that the handcuffs placed
on him were too tight and causing pain. No adjustments were
made, 2 and appellant testified that he experienced additional
harm during the ride in the patrol wagon to the Worcester police
station because the driver of the van continuously applied the
brakes abruptly, causing him to bounce about the vehicle.
At the police station, appellant remained handcuffed for
approximately four more hours, although he repeatedly requested
1Appellee contends that, once appellant had his coat, he
became agitated and started swinging his arms.
2Appellee testified that he checked the handcuffs and
determined that they were not too tight; appellant said the
officer did not examine the handcuffs.
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that the cuffs be removed or loosened. A videotape of
appellant's booking was shown to the jury as evidence of his
physical condition after the handcuffs were removed.3 After
posting bail, he went to the hospital and was diagnosed with
probable "post traumatic/occlusive loss of sensation [in] both
hands of temporary nature." Follow-up treatment was
recommended. Other medical records indicated that he may have
suffered a rotator cuff injury. Appellant testified that he
experienced pain in his wrists for a few months.
About six months after the incident, the charges against
appellant were dismissed. He subsequently filed this suit
claiming that appellee had violated his constitutional rights by
falsely arresting him and using excessive force.4
At trial, the court instructed the jurors that they must
find that appellant suffered "serious injury" to find appellee
3
The videotape was not made part of the record on appeal.
In his brief, appellant states that the tape shows that when he
was released from the handcuffs, "he was in such pain that he
was unable to dial a telephone number and lift the telephone
receiver." Appellee does not in his brief dispute this
characterization of the tape. At argument, his counsel
suggested that the jury could have found that appellant was
"hamming it up for the camera."
4
Appellant originally named multiple defendants, including
the City of Worcester, but all besides Goddard were eliminated
from the case before trial. In addition, appellant voluntarily
dismissed a state tort claim for malicious prosecution before
the jury deliberated. Federal and state civil rights claims
were merged.
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liable for excessive force. The jury returned a verdict in
favor of appellant on the false arrest claim, but found no
liability on the excessive force claim. On appeal, Bastien
challenges only the court's instruction on excessive force.
II. Discussion
Appellant argues that the district court erred by imposing
a "serious" injury requirement on the excessive force claim.
His counsel initially pressed this argument at a charging
conference outside the jury's presence, asserting that that was
not the standard for excessive force. The trial judge
disagreed, noting that he nearly directed a verdict on that
claim "because of the issue of serious, permanent injury."
Counsel renewed the objection following the charge: "I would
also like to state an objection as to the Court's charge that
Mr. Bastien be required to prove that he had a serious injury as
a result of the excessive force used by Mr. Goddard."
Preliminarily, we address appellee's contention that the
issue was not properly preserved. He contends that appellant
"stated no grounds for the objection" and failed to direct the
court to any authority that might cause it to reconsider. We
disagree that counsel's effort to alert the court was deficient.
An attorney's obligation is to "stat[e] distinctly the matter
objected to and the grounds of the objection," see Fed. R. Civ.
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P. 51, so that the trial judge has the opportunity to reconsider
and correct any error, Drohan v. Vaughn, 176 F.3d 17, 21 n.1
(lst Cir. 1999); see also Wilson v. Maritime Overseas Corp., 150
F.3d 1, 7 (lst Cir. 1998) ("The emphasis is not on the form of
objections, but rather on ensuring that the trial court had
actual notice of the nature and grounds of the objection.").
At the conference, counsel directly asserted that the
standard for excessive force did not include a finding of
serious injury. There was no imprecision in the objection and
no confusion on the part of the court; to the contrary, the
judge contradicted counsel's statement of the law, to which the
attorney responded, "Okay. Note my objection." When the court
actually gave the charge, appellant's attorney repeated her
objection to the requirement that Bastien show serious injury.
Appellee has cited no cases holding that, in addition to a
clearly stated objection, counsel must provide the court, on the
spot, with the legal research underlying her position. It would
be ideal, of course, if an attorney lodging an objection offered
the court photocopies of cases or citations to the precedent
substantiating her contention that the court had erred. Placing
such an obligation on an attorney immersed in daily trial
preparations, however, strikes us as wholly unreasonable. By
its terms, Rule 51 does not require an attorney to be prepared
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at the time of trial to fully litigate his objection; the
crucial requirement is to provide the court with an adequate
understanding of the asserted flaw in its charge. That
obligation was met here.
Having concluded that appellant sufficiently preserved his
objection, we turn to the merits and review the contested
instruction de novo. See Ponce v. Ashford Presbyterian Comm.
Hosp., 238 F.3d 20, 24 (lst Cir. 2001). Our inquiry quickly
reveals that appellant is correct that liability may be imposed
for the use of excessive force even in the absence of a serious
injury. Excessive force claims arising out of arrests are
analyzed under the Fourth Amendment's protection against
unreasonable seizures, see Graham v. Connor, 490 U.S. 386, 394-
95 (1989), and the plaintiff
must demonstrate that the police defendant's actions
were not objectively reasonable, viewed in light of
the facts and circumstances confronting him and
without regard to his underlying intent or motivation.
Alexis v. McDonald's Rests. of Mass., 67 F.3d 341, 352 (lst Cir.
1995) (citing Graham, 490 U.S. at 397). The relevant
circumstances include "the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of
the officers or others, and whether he is actively resisting
arrest or attempting to evade arrest by flight." Graham, 490
U.S. at 396.
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Although the severity of the injury also may be considered,
see, e.g., Dean v. City of Worcester, 924 F.2d 364, 369 (lst
Cir. 1991),5 we have stated explicitly that a "serious injury"
is not a prerequisite to recovery:
[A] trialworthy "excessive force" claim is not
precluded merely because only minor injuries were
inflicted by the seizure. See Lester [v. Chicago],
830 F.2d [706,] 714 [(7th Cir. 1987)] (finding
reversible error in district court "excessive force"
instruction which required jury to find "severe
injury," thus may have led jury to find for defendant
where plaintiff's physical injuries consisted only of
bruises); see also Harper v. Harris County, 21 F.3d
597, 600 (5th Cir. 1994) (holding that plaintiff need
not prove "significant injury" to assert Fourth
Amendment "excessive force" claim).
Alexis, 67 F.3d at 353 n.11.6 That view is widely held. See,
e.g., Kostrzewa v. City of Troy, 247 F.3d 633, 639 (6th Cir.
5 Our discussion in Dean illustrates that the nature of the
injury is only one among multiple factors to be considered in
evaluating an excessive force claim. After examining other
factors, we observed that the reasonableness of the force used
there was confirmed by "compelling evidence that [plaintiff's]
alleged injuries . . . were minor." Thus, plaintiff's claim
failed not because minor injuries are per se insufficient but
because they were insufficient to trigger an inference of
excessive force in that context: "the 'tense, uncertain, and
rapidly evolving circumstances' . . . surrounding the reasonably
perceived need to subdue an armed felon on a busy city street."
See 924 F.2d at 639 (quoting Graham, 490 U.S. at 397).
6 Our conclusion in the Fourth Amendment context follows the
Supreme Court's explicit overruling of the "significant injury"
requirement in the parallel setting of excessive force claims
brought by prisoners under the Eighth Amendment. See Hudson v.
McMillian, 503 U.S. 1, 7 (1992). The Court there stated that
"[t]he absence of serious injury is . . . relevant to the . . .
inquiry, but does not end it."
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2001) (excessive force claims can be maintained regardless of
whether injuries "left physical marks or caused extensive
physical damage," including, as in that case, when individual's
wrists are cuffed too tightly); Glenn v. City of Tyler, 242 F.3d
307, 314 (5th Cir. 2001);7 Headwaters Forest Defense v. County
of Humboldt, 240 F.3d 1185, 1199 (9th Cir.), vacated and
remanded on other grounds by 122 S. Ct. 24 (2001) ("[W]hether
the use of force poses a risk of permanent or significant injury
is a factor to be considered in evaluating the need for the
force used in a particular case – but it is certainly not
dispositive."); Lambert v. City of Dumas, 187 F.3d 931, 936 (8th
Cir. 1999) (circuit has rejected the "significant injury"
7
In Glenn, the Fifth Circuit rejected a claim based on
tight handcuffing where the plaintiff's sole complaint was that
one wrist had become swollen, stating that "handcuffing too
tightly, without more, does not amount to excessive force." See
242 F.3d at 314 (emphasis added). The court, however,
reaffirmed the circuit's view that a showing of "significant
injury" is not required to prove excessive force. See id.
Rather, "[t]he injury must be more than a de minimis injury and
must be evaluated in the context in which the force was
deployed." Id. Thus, whether an injury is "de minimis" is
itself dependent upon the particular facts of the case. See
Williams v. Bramer, 180 F.3d 699, 703-04, clarified on reh'g,
186 F.3d 633 (5th Cir. 1999) ("[T]he amount of injury necessary
to satisfy our requirement of 'some injury' and establish a
constitutional violation is directly related to the amount of
force that is constitutionally permissible under the
circumstances." (citation omitted)); cf. Neague v. Cynkar, 258
F.3d 504, 508 (6th Cir. 2001) ("[W]hen there is no allegation of
physical injury, the handcuffing of an individual incident to a
lawful arrest is insufficient as a matter of law to state a
claim of excessive force . . . .") (footnote omitted).
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requirement for excessive force claims, requiring instead
"actual injury"); Rambo v. Daley, 68 F.3d 203, 207 n.2 (7th Cir.
1995) (significant injury not required for Fourth Amendment
excessive force claims); Wardlaw v. Pickett, 1 F.3d 1297, 1304
n.7 (D.C. Cir. 1993) (severity of injury a "relevant factor,"
but "we do not suggest that an individual must suffer
significant injuries in order for the force used to be
unreasonable").
Appellee asserts that the court's charge effectively
communicated the correct standard, despite the statement that
the jury must find a serious injury to find an unreasonable use
of force.8 He contends that, because the court distinguished
8The court's entire charge on excessive force was as
follows:
Mr. Bastien alleges that Mr. Goddard used
excessive force against him by putting handcuffs on
him in an abusive manner; that is, Mr. Goddard placed
the handcuffs on him too tightly and refused to loosen
them when he complained.
Now, not every wrongful act allegedly committed by
an individual rises to the level of a constitutional
violation. A police officer is entitled to use such
force as a reasonable person would think is required
to take someone arrested into custody, and this may
include such physical force as is reasonably necessary
to accomplish this lawful purpose. Whether a specific
use of force is excessive turns on factors such as the
severity of the crime, whether the suspect poses an
immediate threat, and whether the suspect is resisting
or fleeing.
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mere discomfort or pain from the type of injury necessary to
establish excessive force, the jury understood that "serious"
injury could be anything other than de minimis impacts. In
appellee's view, the jury verdict reflected a credibility
judgment that Bastien was not as seriously injured as he
claimed, not a conclusion that his injuries were insufficiently
substantial to qualify as "serious."
While the instruction and verdict may be susceptible to this
interpretation, we think it more likely that the jurors would
focus on the requirement of "serious" injury independently,
You should also consider whether Mr. Bastien
suffered a serious injury as a result of the amount of
force used by Mr. Goddard. If the application of
handcuffs was merely uncomfortable or caused pain,
that is insufficient to constitute excessive force.
Therefore, if you find that Mr. Bastien did not suffer
a serious injury as a result of being handcuffed by
Mr. Goddard, then you must find that the force which
Mr. Goddard used against Mr. Bastien was reasonable.
The reasonableness of the use of force must be
judged from the perspective of a reasonable officer at
the scene. Thus, in order to determine whether Mr.
Goddard violated Mr. Bastien's right to be free from
the use of excessive force, you must consider whether
Mr. Goddard's actions were objectively reasonable in
light of the facts and circumstances confronting him
without regard to his underlying motive or intent. An
officer is not allowed to use any force beyond that
reasonably necessary to accomplish his lawful purpose.
Thus, if you find that Mr. Goddard used greater force
that was reasonably necessary in the circumstances of
this case, you must find Mr. Goddard liable for a
violation of Mr. Bastien's rights. (Emphasis added.)
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viewing the court's reference to particular kinds of non-serious
harm simply as examples of injuries that were not serious.
Certainly, jurors giving an ordinary meaning to the word
"serious" could conclude that an individual who suffered harms
beyond mere pain or discomfort had not necessarily suffered a
"serious injury."
Appellee acknowledges that Bastien offered testimony and
medical records tending to establish – if believed – that he
suffered more than discomfort or pain. See supra at 3-4.
Jurors were told that that evidence was enough to establish
liability only if appellant's injury could be termed "serious."
Jurors instead should have considered only whether the officer's
actions were unreasonably severe for the circumstances.
Such an error entitles appellant to a new trial on his claim
only if it had a prejudicial effect. See Tiller v. Baghdady,
244 F.3d 9, 15 (lst Cir. 2001) ("An error is harmless when 'we
can say with fair assurance . . . that the judgment was not
substantially swayed by the error.'" (citations omitted)); Cigna
Ins. Co. v. Oy Saunatec, Ltd., 241 F.3d 1, 8 (lst Cir. 2001)
(preserved instructional error subject to harmless error
review); see also Fed. R. Civ. P. 61. The jurors determined that
appellant was improperly subjected to arrest, and they thus
implicitly found that he should not have been restrained at all;
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we therefore cannot say "with fair assurance" that, if properly
instructed, the jury would have rejected appellant's contention
that his lengthy, painful handcuffing, which had lingering
physical effects, amounted to unreasonable force in the
particular circumstances. The error therefore cannot be deemed
harmless.
The judgment of the district court is vacated, and the case
is remanded for a new trial on the excessive force claim.
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