          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.




                                  -3-
      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.

                                 -4-
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.

                                        -5-
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.


                                  -6-
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


                                       -7-
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.

                                           -8-
    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."

                                -9-
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).

                                       -10-
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.


                                       -11-
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.)

                                   -12-
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;


                                 -13-
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.




                                   -14-
