Wisniewski v. Stevens ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
HENRY WISNIEWSKI,
Plaintiff-Appellant,
v.
JAMES F. STEVENS, JR.; STALEIGH,
INCORPORATED; CHARLES R. CHRIST;
AMOCO OIL COMPANY; EASTERN
No. 96-1272
SERVICE CENTER, INCORPORATED,
Defendants-Appellees,
and
MAYOR AND CITY COUNCIL OF
BALTIMORE,
Defendant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, District Judge.
(CA-94-3119-WMN)
Argued: January 31, 1997
Decided: April 11, 1997
Before WILKINSON, Chief Judge, and WILLIAMS and
MICHAEL, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Edward J. Makowski, Jr., Baltimore, Maryland, for
Appellant. Ralph Louis Arnsdorf, SMITH, SOMERVILLE & CASE,
L.L.C., Baltimore, Maryland, for Appellees. ON BRIEF: Robert C.
Verderaime, VERDERAIME & DUBOIS, P.A., Baltimore, Mary-
land, for Appellee Stevens.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Henry Wisniewski appeals from a district court order granting
summary judgment to defendants Staleigh, Inc., Eastern Service Cen-
ter, Inc., Charles R. Christ, and Amoco Oil Company (collectively,
Amoco) on his claims of false imprisonment, negligence, and mali-
cious prosecution. Wisniewski also appeals several issues that arose
at trial from his claims against defendant James F. Stevens, Jr., a Bal-
timore policeman, for excessive force, false arrest, and other alleged
violations of 42 U.S.C. § 1983. We affirm the district court for the
reasons stated below.
I.
On November 20, 1992, Wisniewski paid $3.50 for an automatic
car wash at an Amoco gas station in Baltimore, Maryland. Barbara
Mariano, the station attendant, gave Wisniewski a code to activate the
car wash, but Wisniewski could not get the wash to work. Mariano
stepped out of her cashier's booth and tried to help Wisniewski, but
she was not able to get Wisniewski to stop his car in the right place.
Wisniewski got out of his car, leaving it at the car wash exit, and
demanded an immediate refund. Mariano refused and told him that
the station has a policy against giving on-site refunds. Wisniewski
became upset and began yelling and cursing at her. He also refused
to move his car, which prevented other customers from using the car
wash. Mariano gave Wisniewski a telephone number on a slip of
paper so he could request a refund. She then directed him to a pay
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phone across the street. He went to the pay phone, but he could not
get the phone to work. While Wisniewski was trying to use the pay
phone, Mariano returned to her booth and called the police. She told
the police "there was some disturbance at the Amoco station."
Baltimore City Police Officer James Stevens arrived at the gas sta-
tion and talked to Mariano, who was still in her booth. When Wis-
niewski returned from the pay phone across the street, Stevens
ordered him to leave the gas station. Wisniewski refused and resumed
yelling and swearing at Mariano. Stevens again ordered Wisniewski
to leave. When Wisniewski again refused, Stevens began to handcuff
him. A brief struggle ensued, and Stevens pulled Wisniewski's arms
behind him and placed handcuffs on his wrists. Stevens reported that
he arrested Wisniewski for disorderly conduct and failure to obey a
lawful order to leave the premises. Minutes later, other officers
arrived and took Wisniewski to the police station, where he was
charged with disorderly conduct. The police released him a few hours
later and ultimately dismissed the charge.
Wisniewski filed an action against Amoco and Officer Stevens in
the Circuit Court of Maryland for Baltimore City. He sued Amoco for
false imprisonment, negligence, and malicious prosecution. He sued
Stevens for excessive force, false arrest, and other constitutional vio-
lations under 42 U.S.C. § 1983. The defendants removed the case to
the United States District Court for the District of Maryland. Amoco
filed a motion for summary judgment, which the district court granted
on November 22, 1995. The case went to trial against Stevens. After
a two-day trial the jury returned a verdict in favor of Stevens. The dis-
trict court entered judgment for Stevens on January 25, 1996. Wis-
niewski appeals the order granting summary judgment to Amoco and
several issues that arose during the trial.
II.
Wisniewski first appeals the district court's order granting sum-
mary judgment to Amoco. Wisniewski claimed that Amoco breached
its duty of care to him and gave false information to the police. After
consideration of the parties' briefs, the record, and the oral arguments
of counsel, we conclude that the district court correctly granted sum-
mary judgment to Amoco on these claims. Accordingly, we affirm the
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summary judgment order on the reasoning of the district court. See
Wisniewski v. Stevens, No. WMN-94-3119 (D. Md. Nov. 22, 1995).
III.
Wisniewski also appeals the judgment entered in favor of Officer
Stevens after the jury verdict. Wisniewski's main issues center on
voir dire, jury instruction, and the district court's determination that
the issue of First Amendment protection for using profanity was not
present in this case.
During voir dire Wisniewski requested the district court to ask the
prospective jurors if "any of them had preconceived notions [about]
whether the use of the word `f---' in public constituted criminal
behavior." The district court refused to ask the question because it did
not think profanity was a central issue. However, the court promised
to give an appropriate jury instruction if it became necessary. The
court was correct that the use of profanity was never a central issue.
Wisniewski was arrested for disorderly conduct stemming from his
refusal to obey the officer's lawful order that he leave the Amoco
premises because his car was blocking the exit of the car wash. His
use of profanity, although a factor, was not the primary reason for his
arrest. "[T]rial courts are given broad discretion as to the questions to
be asked." United States v. Barber, 80 F.3d 964, 967 (4th Cir. 1996)
(internal quotation marks omitted). In light of the facts in this case
and the broad discretion given trial courts in formulating questions for
the voir dire, we conclude that the district court's refusal to ask the
proposed question about profanity was not an abuse of discretion.
Wisniewski next argues that the district court gave erroneous
instructions to the jury. First, he claims that the district court mis-
stated Maryland law regarding disorderly conduct. The district court
instructed the jury on disorderly conduct as follows:
The laws of Maryland provide that a person may not act
in a disorderly manner to the disturbance of the public peace
and that any person violating that prohibition would be
guilty of a misdemeanor.
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I further instruct you that the laws of Maryland provide
that any person who enters upon the premises of another and
who wilfully acts in a disorderly manner by making loud
and unseemly noises or by profanely cursing or swearing or
using obscene language in the presence of others or acting
in any other disorderly manner such that the conduct in its
totality causes, or tends to cause a breach of the peace is a
misdemeanor.
This instruction accurately reflected the relevant statutes. Md. Ann.
Code art. 27, § 123 provides:
(a) Prohibited conduct. -- A person may not act in a dis-
orderly manner to the disturbance of the public peace, upon
any public street, highway, alley, park or parking lot[.]
(b) Penalty. -- Any person violating the prohibitions of
this section is guilty of a misdemeanor[.]
Md. Ann. Code art. 27, § 122 provides:
Any person who shall be acting in a disorderly manner to
the disturbance of the public peace, or who shall wilfully act
in a disorderly manner by making loud and unseemly noises
or by profanely cursing, swearing or using obscene lan-
guage, on or about any public place . . . is subject to a fine
not exceeding $500 or imprisonment not exceeding 30 days,
or both[.]
Maryland state courts have applied these statutes to facts similar to
those in this case. See, e.g., Briggs v. State, 599 A.2d 1221, 1225
(Md. Ct. Spec. App. 1992). Therefore, we agree with Stevens that the
instructions on disorderly conduct accurately reflected Maryland law.
Second, Wisniewski argues that the district court erred in its qualified
immunity instruction to the jury. Wisniewski asked that the instruc-
tions define "knowingly" in terms of what a reasonable officer should
have known. Wisniewski contends that the instructions caused the
jury to accept Stevens' subjective beliefs concerning probable cause.
However, the instruction on probable cause in fact noted that "a
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police officer must have information that would lead a reasonable per-
son who possesses the same official expertise as the officer to con-
clude that the person being arrested has committed or is about to
commit a crime." Therefore, the instruction on probable cause itself
provided the jury with the "reasonable officer" standard that Wis-
niewski requested.
Lastly, Wisniewski contends that his arrest violated his First
Amendment right to use profane language. At the close of Wis-
niewski's evidence at trial, the district court ruled that Wisniewski
had not pled a § 1983 claim based on a violation of First Amendment
rights, and even if he had, the evidence at trial was legally insufficient
to support such a claim. On appeal, Wisniewski attacks this ruling as
having "deprived [him] of his opportunity to be heard on the issue."
As we indicated above, however, speech was never the focus of this
case. Wisniewski's use of profanity was just one factor in his arrest.
See Briggs, 599 A.2d at 1225-26 ("Whether Briggs's use of profanity
towards the officers is constitutionally protected is another matter:
. . . his words were not obscene in the constitutional sense. But they
were abusive epithets, directed at particular individuals, and they
might have tended to incite disorderly conduct in others."). The dis-
trict court was therefore correct that Wisniewski did not assert or have
a First Amendment claim.*
IV.
The orders and judgment of the district court are
AFFIRMED.
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*We also find the other issues raised by Wisniewski to be without
merit.
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