
USCA1 Opinion

	




          December 15, 1994 UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-1046                                     DAVID TATRO,                                Plaintiff - Appellant,                                          v.                               TIMOTHY KERVIN, ET AL.,                               Defendants - Appellees.                                 ____________________                                     ERRATA SHEET               The  opinion of  this court  issued on  December 1,  1994 is          amended as follows:               The  cover page should read:   "Hon. William  G. Young, U.S.                                                                       ____          District  Judge" instead  of "Hon.  Rya  W. Zobel,  U.S. District          _______________                                     _____________          Judge."          _____                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-1046                                     DAVID TATRO,                                Plaintiff - Appellant,                                          v.                               TIMOTHY KERVIN, ET AL.,                               Defendants - Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                              Torruella, Circuit Judge,                                         _____________                           Campbell, Senior Circuit Judge,                                     ____________________                             and Carter,* District Judge.                                          ______________                                _____________________               Sarah R.  Wunsch, with  whom  Massachusetts Civil  Liberties               ________________              ______________________________          Union  Foundation   and  Chrystal  Murray,  were   on  brief  for          _________________        ________________          appellant.               Kevin S. McDermott, Assistant Corporation Counsel, with whom               __________________          Albert  W.  Wallis,  Corporation  Counsel,  City  of  Boston  Law          __________________          Department, was on brief for appellees.                                 ____________________                                   December 1, 1994                                 ____________________                                        ____________________          *  Of the District of Maine, sitting by designation.                    TORRUELLA, Circuit  Judge.  In this  appeal, plaintiff-                    TORRUELLA, Circuit  Judge.                               ______________          appellant  David Tatro  seeks a  new trial  for his  civil rights          action against  three Boston police  officers on the  ground that          the verdict  for  the  defendants was  based  on  erroneous  jury          instructions.    While we  agree that  the  trial court  erred in          instructing the  jury that plaintiffs had to prove that defendant          police  officers "clearly"  lacked probable  cause to  arrest and          "clearly"  used excessive force in that arrest, we find the error          to be prejudicial only as to part of the verdict, and harmless as          to the rest.  We therefore affirm  in part and reverse in part.                                    I.  BACKGROUND                                    I.  BACKGROUND                    In September of 1992, Tatro brought suit against Boston          Police  Officers  Timothy Kervin,  Stephen  O'Brien, and  Stephen          Chin,  alleging that  the officers  arrested Tatro  twice without          probable  cause, used  excessive  force  in  making  one  of  the          arrests, and  interfered with Tatro's First  Amendment rights, in          violation  of federal  and  Massachusetts civil  rights laws,  42          U.S.C.     1983,  and  Mass.  Gen.   L.  ch.  12,      11H  &  I,          respectively.  Tatro also raised pendent state claims.                    The  series of  events  that are  the  subject of  this          action  occurred after  police  responded to  complaints about  a          Halloween party on the night of October 31, and the early morning          of  November 1, 1989, at 27  Seattle Street in  a neighborhood of          Allston, Massachusetts.  Either Officer Kervin or Officer O'Brien          arrested  Tatro on the sidewalk  outside of the  house on Seattle          Street  where  the party  was  being  held  during an  apparently                                         -2-          violent  and   chaotic  effort  to  break   up  the  festivities.          Following Tatro's  release from  the police  station a  few hours          later, Tatro either  intentionally or  accidentally knocked  over          Officer  Chin and was arrested a second time.  Tatro alleges that          both arrests were made without probable cause and that the second          arrest was made with excessive force.                    Tatro   and   the   police   officers   presented   two          dramatically different versions of these events at trial.                    A.  Tatro's Version                    A.  Tatro's Version                        _______________                    Tatro testified that he was standing outside 27 Seattle          Street where the  party was held when  he saw some Boston  police          officers arrive,  enter the house,  order everyone to  leave, and          then violently arrest  the party's host  after he questioned  the          officers'  right to enter  the house without a  warrant.  As more          police officers arrived, Tatro claims he exited the yard in front          of the  house, walked out the  front gate, and then  stood on the          sidewalk  on  the other  side of  the  fence enclosing  the yard.          Tatro  testified that many of  the partygoers came  into the yard          and began asking the police officers what the problem was.  Tatro          then saw the  officers hitting people with  their nightsticks and          flashlights.   Tatro stated he was "horrified" and that he stayed          to watch the scene because he felt it was his duty to witness the          incident  of  police  brutality.    On  cross-examination,  Tatro          characterized the scene as a "riot."                    According  to Tatro, Officer Kervin suddenly approached          Tatro and  said, "Get the fuck out of here," at which point Tatro                                         -3-          claims he turned toward Kervin and said "I can't believe what  is          happening."   Tatro testified that Kervin then grabbed him by the          arms  and said, "You  didn't move fast enough."   The police then          put Tatro in handcuffs, placed him in a police cruiser, and drove          him to the police station.                    After being  held at the  station for three  hours, the          police  released  Tatro.    Subsequently,  Tatro,  several  other          partygoers who had been  arrested, and their friends, congregated          on the sidewalk outside the police station.  Police officers then          came out of  the station and  told them to  leave.  According  to          Tatro, he decided to walk home and, as he stepped off a curb,  he          accidentally  walked into  Officer  Chin.   Tatro  claims he  was          looking  down at the time because he  had a vision disability and          needed  to watch his  feet as he  stepped off the  curb.  Officer          Chin grabbed Tatro  and then  released him.   Tatro asserts  that          Officer Kervin then tackled him from  behind, ground Tatro's face          into the pavement, grabbed him by the hair, pulled his arm way up          behind his back, and said,  "I've got you now, fucker."   Officer          Kervin  then  pulled  Tatro  to  his  feet,  handcuffed  him, and          arrested him a second time.                     Tatro  suffers  from  a hereditary  eye  disorder which          renders him legally  blind.  He carries  an ID card attesting  to          his eyesight condition.  Tatro told Officers Kervin and Chin that          he was  legally blind  and he  had not  seen Officer Chin  before          running  into him.   He repeatedly asked the  officers to look in          his wallet for the  ID card that would prove  his near blindness,                                         -4-          but the officers refused.                    Tatro  was charged  with  assault and  battery on  four          different police officers, disorderly conduct, and disturbing the          peace.   Tatro  was  also charged  with  assault and  battery  on          Officer  Chin  outside  the  police station.    All  charges were          ultimately dismissed.                    B.  The Police Officers' Version                    B.  The Police Officers' Version                        ____________________________                    The officers  and their witnesses provided  an entirely          different  account of  the  events  surrounding Tatro's  arrests.          According to the police officers, they were originally dispatched          to  27  Seattle  Street  in Allston  in  response  to  neighbors'          complaints  of noise from the party.   Several officers testified          that the  partygoers were  uncooperative  and initiated  physical          contact with the officers, after which a riot broke out.                    Several officers and  witnesses testified that Officers          Kervin, O'Brien and  some other  police officers  were trying  to          subdue and  arrest  another  person  when  Tatro  came  from  the          sidewalk  and struck  one of  the officers  in  the back.   Tatro          allegedly continued to strike several of the officers while  they          were  handcuffing the  other partygoer.   Officer  Kervin himself          never said  anything to  Tatro and  did not  make  the arrest  of          Tatro.  Officer  O'Brien testified that after securing the arrest          of the other person,  during which Tatro punched him,  he grabbed          Tatro and arrested him.                    As for  the second  arrest, the officers  claimed Tatro          deliberately knocked Officer Chin down from behind, after walking                                         -5-          directly  toward  Officer  Chin.   The  officers  testified  that          Officer  Kervin then  pulled  Tatro off  Officer  Chin.   Officer          Kervin stated that  he did  not arrest Tatro  nor initially  take          Tatro into custody at  that point, rather his only  action was to          pull Tatro  off of Officer Chin.  The officers refused to look at          the ID in  Tatro's wallet  showing that Tatro  was legally  blind          because there was no doubt in their minds that Tatro deliberately          and violently pushed Officer Chin.                    C.  Jury Instructions                    C.  Jury Instructions                        _________________                    At trial, the  court gave a  number of instructions  to          the  jury  which  Tatro  claims  were  erroneous.    Among  those          instructions  are the  ones concerning  whether the  officers had          probable  cause to  arrest Tatro  and whether  the  officers used          excessive force.  In its preliminary instructions, the court told          the jury  that  in  order for  Tatro  to prove  that  the  police          officers arrested  Tatro without probable cause,  in violation of          Tatro's civil rights:                      Tatro has to prove that it would be clear                                                          _____                      to  the  reasonable  police officer,  the                      reasonably  well-trained  police officer,                      that that  reasonably well-trained police                      officer   exercising   reasonable,   good                      judgment,  would know that he didn't have                      probable cause to arrest this individual.                      (emphasis added).          In the actual charge to the jury, the court stated:                      Now, even if there was not probable cause                      in order for there to be a constitutional                      violation, it must appear clearly to that                                                _______                      reasonable   police   officer   that   no                      probable  cause  exists  for the  arrest.                      Police officers are not to be held to the                      standards  of  lawyers or  judges  in the                                         -6-                      quiet  of the courtroom.  Police officers                      are out on the streets engaged in  public                      affairs in the discharge of their duty.                      So, with respect to this  first aspect of                      the  federal civil  rights claim,  and it                      applies  to  both arrests,  you  must ask                      yourself  whether  Mr.  Tatro has  proved                      that clearly there was not probable cause                           _______                      for his arrest.                                        . . .                      . . . that  he was seized clearly without                                                _______                      probable cause as judged through the eyes                      of    a   reasonable    police   officer.                      (emphasis added).                    With  respect  to the  court's instructions  on Tatro's          claim of excessive force, the court stated before trial:                      [The police] don't have the right to  use                      clearly  more  force, clearly  more force                      _______               _______                      than is required under  the circumstances                      to   take   the   person  into   custody.                      Mr. Tatro  says  that's  what  the  three                      officers  did  here; they  used excessive                      force in accomplishing the arrest.                      So  now  on   this  claim,  here's   what                      Mr. Tatro has  to prove. . .  . [W]as the                      force so clearly excessive, again, that a                               _______                      reasonable  police  officer faced  by the                      same or similar circumstances, would have                      known, would have known, allowing now for                      a   range   of  judgment,   about  what's                      required in an  unfolding situation,  the                      reasonable police officer  faced by  that                      same  situation  would  have  known  this                      force is  clearly excessive.  To do this,                                _______                      it's clearly too much force than  what we                           _______                      need  to  take the  person  into custody.                      (emphasis added).          In the final instructions, the court repeated that the police          "could not  use clearly  excessive force,  that is,  clearly more                          _______                              _______          force than was justified  under all the circumstances." (emphasis          added).                                         -7-                                    II.  ANALYSIS                                    II.  ANALYSIS                    A.  Probable Cause and Excessive Force Instructions                    A.  Probable Cause and Excessive Force Instructions                        _______________________________________________                    We review allegedly erroneous jury instructions de novo                                                                    __ ____          to  determine if  the  instructions, taken  as  a whole,  show  a          tendency  to  confuse or  mislead the  jury  with respect  to the          applicable principles of law.   Davet v. Maccarone, 973  F.2d 22,                                          _____    _________          26 (1st Cir. 1992); Aubin v. Fudala, 782 F.2d 280,  283 (1st Cir.                              _____    ______          1983).  An erroneous instruction will require a new trial only if          the error was  prejudicial, based on  the record as  a whole;  we          will  not  reverse a  judgment  if  we find  the  error from  the          proffered instructions to be harmless.  Davet, 973 F.2d at 26.                                                  _____                    The   court's  instructions   on  probable   cause  and          excessive force were erroneous.  In a civil rights action under            1983, the plaintiff must prove by a preponderance of the evidence                                         __________________________________          that   he  or  she  was  deprived  of  a  right  secured  by  the          Constitution by a  person acting  under the color  of state  law.          Pittsley  v. Warish, 927 F.2d 3,  6 (1st Cir.), cert. denied, 112          ________     ______                             ____  ______          S. Ct. 226 (1991).  In the present case,  Tatro had to prove by a          preponderance of  the evidence that the  police officers violated          his  Fourth Amendment  rights by  arresting him  without probable          cause, Santiago v. Fenton, 891 F.2d 373, 383 (1st Cir. 1989), and                 ________    ______          by using excessive force in their second arrest of Tatro.  Graham                                                                     ______          v. Connor, 490 U.S. 386 (1989).             ______                    Initially, the court  gave the appropriate instructions          regarding the meaning of probable cause and excessive force.  The          court stated  that  "probable  cause  exists  if  the  facts  and                                         -8-          circumstances known to  the officer are  sufficient to warrant  a          reasonable police officer in believing that the suspect has or is          committing  a  crime."   See Santiago,  891  F.2d at  384; United                                   ___ ________                      ______          States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir. 1987).   In the          ______    ________          instructions  on excessive  force,  the court  properly explained          that the  officers "could only  arrest using the  appropriate and          reasonable degree of force under the  circumstances of the case."          See Graham v. Connor, 490 U.S. at 396; Gaudreault v. Municipality          ___ ______    ______                   __________    ____________          of Salem, Mass., 923 F.2d 203, 205 (1st Cir. 1990), cert. denied,          _______________                                     ____  ______          500 U.S. 956 (1991).  The  court also quoted the Supreme  Court's          "calculus  of  reasonableness"  from  Graham  v.   Connor,  which                                                ______       ______          includes  consideration of a police officer's  need to make split          second decisions  in  situations  that  might  involve  potential          threats  to public safety, or  that might require  the officer to          subdue a perpetrator of a serious or violent crime.  Id.                                                               __                    The  court then  further instructed  the jury  that, in          order  to prove  his  case,  Tatro  had  to  establish  that  the          elements,  as  described  above,  were  "clearly"  evident  to  a          reasonable police officer.  Indeed, the court explicitly told the          jury that  finding lack of probable cause  to arrest, and the use          of excessive force, was  not sufficient to find for  Tatro unless          they  found that  the arrest  was made  clearly  without probable                                                  _______          cause,  and clearly with excessive force.  The court explained to                      _______          Tatro's counsel upon counsel's objection that it was embellishing          the traditional language because  "I think this is  how qualified          immunity, if you will survives."   The court added:                                         -9-                      I  don't think  we  put to  the jury  the                      issue  of  qualified  immunity, but  that                      concept   survives.    And   I  think  it                      survives  in this guise.  It's not simply                      the question whether  there was  probable                      cause  or  not.   It's,  the  question is                      whether  the  reasonable  police  officer                      would  know that  there was  not probable                      cause and went ahead anyway  and arrested                      him.          The court  responded similarly after Tatro's  counsel objected to          the "clearly  with excessive  force" instruction: "[T]his  is how          they get their benefit, if  you will, of qualified immunity.   It          has to  be clear to the  officers that what they're  doing is not          authorized by the situation."                    It is not  evident to us  whether the court  envisioned          its instructions as a way to send some component of the qualified          immunity defense to  the jury, or merely as a  way to effectively          describe the "calculus of reasonableness" for the jury's benefit.          Regardless of  the court's reasons,  the extra language  may have          erroneously misled  the jury, and  was not otherwise  required by          the facts or law of the case.                    The court's persistent use of "clearly without probable          cause"  and "clearly  excessive" force  was erroneous  because it          tended  to mislead  the jury  into believing  that Tatro  faced a          heightened  burden of proof with respect to these elements of his          claim  under    1983.   "Clear"  has  been defined  as "[o]bvious          beyond reasonable  doubt," and  "clear and convincing  proof" has          been  described as  "proof  beyond a  reasonable,  i.e., a  well-          founded doubt" or  else as  "more than a  preponderance but  less          than is required in a criminal case."  Black's Law Dictionary 227                                                 ______________________                                         -10-          (5th  ed. 1979).   The court correctly  provided the jury  with a          description  of the  preponderance of  the evidence  standard and          instructed them generally that this was Tatro's burden  of proof.          The  repeated and emphasized use of "clearly" with respect to the          probable cause  and excessive  force elements of  Tatro's action,          however, transformed  Tatro's burden of proof  for those elements          into  something  that  sounded   like  the  stricter  "clear  and          convincing" standard of proof used in certain fraud and breach of          fiduciary duty actions.   See e.g., Putnam  Resources v. Pateman,                                    ___ ____  _________________    _______          958 F.2d 448,  468 n.22 (1st Cir.  1992); Burdett v.  Miller, 957                                                    _______     ______          F.2d 1375, 1382 (7th Cir. 1992).   Thus, instead of thinking they          could find for  Tatro if they determined it  was more likely than          not  that a  reasonable police  officer would  not  have believed          Tatro  was committing an offense,  the jury may  have been misled          into  believing that  it  had to  find  by clear  and  convincing          evidence that a reasonable officer would  not have believed Tatro          was committing an offense.  This was error.                    If  the court  was  placing some  element of  qualified          immunity into the jury instructions, this was not the proper time          or manner to do it.   Qualified immunity, which is a  question of          law,  is  an issue  that is  appropriately  decided by  the court          during  the early  stages of  the proceedings  and should  not be          decided  by the  jury.   Hunter v.  Bryant, 112  S. Ct.  534, 537                                   ______     ______          (1991); Whiting v. Kirk, 960 F.2d 248, 250 (1st Cir. 1992); Lewis                  _______    ____                                     _____          v. Kendrick, 944 F.2d 949, 953 (1st Cir. 1991); Hall v. Ochs, 817             ________                                     ____    ____          F.2d 920, 925  (1st Cir.  1987); Finnegan v.  Fountain, 915  F.2d                                           ________     ________                                         -11-          817,  821  (2d  Cir.   1990).    The  language  of   the  court's          instructions and the court's explanation for that language appear          very similar to the  standard for qualified immunity.   Hunter v.                                                                  ______          Bryant,  112 S.  Ct. at  536 (qualified  immunity  shields police          ______          officers from suit if "'a reasonable officer  could have believed          [plaintiff's  arrest]   to  be   lawful,  in  light   of  clearly          established  law  and  the information  the  [arresting] officers          possessed'"  or  if  the  officers  "'reasonably  but  mistakenly          conclude that probable cause  is present.'") (quoting Anderson v.                                                                ________          Creighton,  483 U.S. 635, 641 (1987)); see also Rivera v. Murphy,          _________                              ________ ______    ______          979 F.2d 259, 263 (1st Cir. 1992); Hall v. Ochs, 817 F.2d at 924;                                             ____    ____          Floyd v.  Farrell, 765  F.2d 1,  5 (1st Cir.  1985).   The police          _____     _______          officers  did not  raise a  qualified immunity  defense  and both          parties agree that,  given the  facts of the  case, no  qualified          immunity  issue exists.    Under such  circumstances,  we see  no          reason  why  Tatro  must prove,  as  an  additional element,  the          absence of qualified immunity.          _______                    In  any event, if a  court does feel  obligated to give          the  defendants the  benefit of qualified  immunity at  the final          stage  of the  trial,  or, more  appropriately,  if it  needs  to          resolve factual issues related  to qualified immunity, see Prokey                                                                 ___ ______          v. Watkins, 942 F.2d 67, 73-74 & n.7 (1st Cir. 1991) (noting that             _______          some factual  disputes concerning qualified immunity  may need to          be resolved by the  appropriate factfinder, although the ultimate          issue of qualified immunity  remains with the court), it  must do          so  without  using  potentially  misleading  language  like   the                                         -12-          "clearly" language used in the present jury instructions.                    Similarly, if, as the  police officers argue, the court          was  merely using  the  special language  in its  instructions to          better explain and describe the calculus of reasonableness to the          jury,  and not  to  add additional  elements  of the  offense  or          requirements of proof,  the court did so in a  way that tended to          mislead  the  jury.   As such,  the instructions  were erroneous.          Although   determining   "reasonableness"  is   a  fact-sensitive          determination that  would greatly benefit from  some illustrative          explanation,  and although  the jury must  take into  account the          difficult   situations  in  which   police  officers  often  find          themselves,  these considerations  can  be conveyed  to the  jury          without possibly  misleading  them  into  thinking  a  heightened          standard  of proof applies to their deliberations.  See Graham v.                                                              ___ ______          Connor,  490  U.S.  at  396  (providing  helpful  description  of          ______          reasonableness without using "clearly" language).                    B.  The Riot Statute Instructions                    B.  The Riot Statute Instructions                        _____________________________                    Tatro  also argues that  a third instruction prejudiced          him, because when taken together with the "clearly" language, the          instructions would allow the jury to both believe Tatro's version          of events as to the first  arrest, and at the same time  find for          the  police  officers   as  to  probable  cause  because  of  the          misleading instructions on the standard of proof.  This allegedly          erroneous instruction involved  the Massachusetts "riot statute,"                                         -13-          Mass. Gen. L. ch. 269,   1.1  The court instructed:                      [I]f  a  reasonable police  officer would                      have  probable cause  to believe  that he                      was facing a  riot and Mr. Tatro  refused                      to   leave  after   a  lawful   order  to                      disperse,  then Mr.  Tatro was  liable to                      arrest.          Over  Tatro's vigorous  objection, the  court insisted  on giving          this  instruction so  that, under  Tatro's version  of the  first          arrest, the jury could determine whether Tatro violated  the riot          statute by refusing  to leave the  "riotous" party after  Officer          Kervin  told him to "get out of here," thus giving Officer Kervin          probable  cause to arrest Tatro.   Tatro argues  that because the          police  officers explicitly  asserted  that  they arrested  Tatro          because  he assaulted them, the riot instruction did not apply to          the  facts of the case, and, anyway, would be unconstitutional if          applied to Tatro's version of events.  Analyzing the riot statute          instructions  standing  alone, we  disagree  with  both of  these          contentions, and address them separately.                    First,  Tatro himself  characterized the  scene  of his          first arrest  as a "riot," and stated that he did not comply when                                        ____________________          1  Mass. Gen. L. ch. 269   1 provides in pertinent part:                               If . .  . ten or more persons,  whether armed                    or   not,   are  unlawfully,   riotously,  or                    tumultuously  assembled in  a  city or  town,                    . . .  the police .  . .  shall go  among the                    persons so  assembled, . . . and  in the name                    of  the commonwealth  command all  persons so                    assembled   immediately   and  peaceably   to                    disperse;  and  if   they  do  no   thereupon                    immediately and peaceably  disperse, each  of                    said . . . officers shall . . . arrest[] such                    persons.                                         -14-          he was  ordered by  police officers to  leave the  scene.   Tatro          testified that he was arrested for "not leaving fast enough," and          he encouraged the jury to disbelieve the police officers' version          of  the events.  Contrary  to Tatro's argument  that "there is no          evidence in the  record upon  which a jury  could determine  that          Tatro was arrested for failing to leave the scene of a riot after          receiving a lawful order to disperse,"  Tatro himself placed such          evidence in the  record, through his own testimony.   If the jury          believed  Tatro's version  of  events, it  could reasonably  have          found  that Tatro  was arrested  for failing  to comply  with the          officers' orders to  disperse.  We  see no  reason why the  court          could not properly invite  the jury to find that,  even according          to  Tatro's version of events, the officers may have had probable          cause  under the riot statute  to arrest Tatro.   Accordingly, we          find  that  the court's  decision sua  sponte  to issue  the riot                                            ___  ______          statute instruction was not erroneous.                    Second,  application  of the  riot  statute  to Tatro's          version of  events does not  violate his First  Amendment rights.          In relating his  version of the  events, Tatro himself  testified          that he was  arrested for "not  moving fast enough," and  not for          any  statements  he allegedly  made to  Officer  Kervin.   In its          instructions to  the jury, the court  specifically and thoroughly          stated that even if  Officer Kervin had probable cause  to arrest                      _______          Tatro,  if the jury found  that Officer Kervin's  real reason for          the arrest was to  interfere with or prevent  Tatro's statements,          or  otherwise "chill"  his First  Amendment rights,  then Officer                                         -15-          Kervin would be  liable.   Heard together with  the court's  riot          statute  instructions, these  charges  allowed the  jury to  find          probable cause  under the riot  statute based on  Tatro's alleged          failure to comply with the officers' orders to disperse, yet also          allow the jury to find  the officers liable if it found  that the          officers violated  Tatro's First Amendment rights.2   Thus, these          instructions were proper, and  sufficient to prevent any possible          misapplication of the riot statute by the jury.3                    C.  Effect of Instructions Reviewed as a Whole                    C.  Effect of Instructions Reviewed as a Whole                        __________________________________________                    Having  found  that  the  jury  instructions  regarding          Tatro's burden of proof were erroneous, we must next determine if          that error prejudiced Tatro's  ability to obtain a fair  trial or          was  merely  harmless.    Because  the  jury  delivered  separate          verdicts as  to each of the two arrests, we analyze the effect of          the   instructions  on   each  arrest   separately,  in   reverse          chronological order.                      1.  The second arrest outside the police station.                        1.  The second arrest outside the police station.                    The two dramatically conflicting versions of the events                                        ____________________          2  We reject Tatro's contention that the  application of the riot          statute  to  him  raises  overbreadth problems  under  the  First          Amendment.   As  we explained,  the court's  careful instructions          delineate the  riot statute's limits in  justifying the officers'          conduct.   Thus, the instructions as a whole sufficiently prevent          an unconstitutional interpretation or application of the statute.          3    This analysis  assumes arguendo,  of  course, that  the jury                                      ________          believed   Tatro's  testimony   and  disbelieved   the  officers'          testimony.  If, on the other hand, the jury disbelieved Tatro and          found  that he actually assaulted the officers, then they did not          believe  that the  events leading  to the  violation of  the riot          statute ever occurred. Thus, there would be no prejudice to Tatro          from the instructions,  and his riot statute and  First Amendment          arguments would become moot.                                          -16-          regarding  the second  arrest  in  front  of the  police  station          required the jury to  ascribe to either one version or the other.          If the jury believed that Tatro deliberately pushed  Officer Chin          before the second arrest, there was probable cause to arrest him,          and  the confusing jury instructions would have had no bearing on          this  inevitable  finding.   If,  on  the  other  hand, the  jury          believed  Tatro  that  the  second  arrest   was  made  after  he          accidentally  bumped into  Officer Chin,  and after  the officers          refused  to  verify  Tatro's  eyesight  condition,  the  lack  of          probable   cause   is  undisputable,   because   Tatro   did  not          deliberately  push  Officer  Chin  and  the  officers  failed  to          ascertain  the   reason  for   the  accidental  contact   as  the          Constitution  requires them to do.   See Sevigny  v. Dicksey, 846                                               ___ _______     _______          F.2d 953, 957 n.5 (4th Cir. 1988); BeVier v. Hucal, 806 F.2d 123,                                             ______    _____          128  (7th Cir. 1986).  The jury was explicitly instructed of this          Constitutional  requirement,  so  if  they did  not  believe  the          officers that Tatro deliberately pushed Officer Chin, there would          be  no  basis to  find probable  cause  to arrest,  regardless of          whether  it  was judged  according  to the  preponderance  of the          evidence standard or erroneously through the clear and convincing          standard.           If the jury  had believed  Tatro, they  would have  arrived at  a          different  verdict  as  to   the  second  arrest,  the  erroneous          instructions  notwithstanding.   Under  these circumstances,  the          erroneous  instructions  are  necessarily  harmless  and did  not          prejudice Tatro.                                         -17-                    The  diametrically opposed versions of Officer Kervin's          alleged use of excessive force during the second arrest similarly          rendered  the effect of the erroneous  instruction harmless as to          Tatro's  excessive force claim.   Officer Kervin claimed he never          arrested  Tatro or took him into custody, let alone tackle Tatro,          grind  his face  into  the pavement,  or  grab him  by the  hair.          Tatro's version, if believed,  would have Kervin doing  all these          brutal  acts without  any justification  whatsoever.   The police                                ___          officers admitted that  Tatro did not resist  arrest, fight back,          or try to  run away after he  pushed Officer Chin.  There  was no          middle ground in which  the jury could have believed all  or part          of  Tatro's version yet still  rendered a verdict  for the police          officers.  In sum,  a heightened standard of proof would not have          led to a mistaken verdict for the police officers, and thus Tatro          did  not suffer from prejudicial error regarding his claims as to          the second arrest.                      2.  The first arrest at 27 Seattle Street.                      2.  The first arrest at 27 Seattle Street.                    As noted  above, Tatro  contends that the  riot statute          instruction, taken  together with the  erroneous instructions  on          the standard of proof, unfairly prejudiced him, as it would allow          the jury to both believe Tatro's version of events and still find          for  the  police officers  because  of  the erroneous  heightened          standard of proof.  We agree.                      Although the riot  statute instruction, standing alone,          was  proper, when  taken  together with  the erroneous  "clearly"          language, the jury  charge reviewed  as a whole  could well  have                                         -18-          prejudiced the plaintiff as to the first arrest.  Unlike the case          of the second arrest,  it is not altogether obvious that the jury          necessarily believed the  defendants regarding the first  arrest.          The  jury could have believed  all or part  of Tatro's testimony,          yet still found  the defendants  not liable because  1) the  riot          statute gave them probable  cause to arrest, and 2)  Tatro failed                                                       ___          to  meet  the heightened  burden of  proof  implied by  the other          erroneous instructions.                    Thus, it is impossible  to conclude with any certainty,          from  either the evidence or the verdict itself, that the court's          erroneous jury instructions were harmless as to the first arrest.          For  that reason,  we find  that the  jury charge  was reversible          error, requiring a new trial as to Tatro's claims surrounding his          first arrest.                    D.  Other Jury Instructions                    D.  Other Jury Instructions                        _______________________                      1.  Tatro's First Amendment claim.                      1.  Tatro's First Amendment claim.                    Tatro alleged at trial that Officer Kervin arrested him          the first  time at least in part because of Tatro's statement, "I          can't believe  what is happening," in violation  of Tatro's First          Amendment right to freedom  of speech.  The court  instructed the          jury that  to establish  this claim, Tatro  had to prove  that he          "would  not  have been  arrested,  but for  the  police officer's                                             _______          intent to  interfere with  Tatro's freedom of  speech." (emphasis          added).  Tatro argues that this instruction was erroneous because          all that Tatro needs to prove is that Tatro's speech entered into          the officer's decision  to make  the arrest, at  which point  the                                         -19-          burden shifts to  the police officer to prove  that he would have          arrested Tatro even in the absence of Tatro's speech.4                    The plaintiff's  standard of proof  in a    1983 action          alleging First Amendment violations by a police officer has never          been  explicitly  addressed  by  this circuit.    Other  circuits          considering the matter, however,  have adopted standards from the          employment discrimination context.  See, e.g., Sloman v. Tadlock,                                              ___  ____  ______    _______          21 F.3d 1462, 1471 (9th Cir.  1994); Mozzochi v. Borden, 959 F.2d                                               ________    ______          1174, 1179 (2d Cir. 1992).  This Circuit has consistently applied          a "but  for" standard  in mixed motive  employment discrimination          cases, see, e.g., Loeb v. Textron, Inc., 600 F.2d 1003, 1019 (1st                 ___  ____  ____    _____________          Cir.  1979), and we  see no reason  why this standard  should not          also apply here.                    Accordingly,   the   district    court's   "but    for"          instructions to the jury  were not erroneous.  We  note, however,          that a "but for" instruction could be misunderstood to imply that          a plaintiff  must show sole  causation or motive.   This would be                                 ____          incorrect.   As  in  the employment  discrimination context,  the          plaintiff  need not prove that the defendant's sole motive was to                                                         ____          chill the  plaintiff's protected expression.   The plaintiff need          only  show  that  the officer's  intent  or  desire  to curb  the                                        ____________________          4  Tatro cites Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,                         ________________________________________    _____          429 U.S. 274,  287 (1977)  as support for  applying this  burden-          shifting  analysis,  but acknowledges  that it  is "questionable"          whether  the  Mt.  Healthy   test,  developed  for  mixed  motive                        ____________          discrimination  or retaliatory termination  cases, applies in the          context of this  action.  Because  it is unnecessary in  light of          our  analysis, infra, we decline  to decide here  whether the Mt.                         _____                                          ___          Healthy burden-shifting test applies.           _______                                         -20-          expression was the determining or motivating factor in making the                             ___________    __________          arrest, in the  sense that  the officer would  not have made  the          arrest "but  for" that determining  factor.  Trial  courts should          clarify their "but for"  standard to this effect when  charging a          jury.5                        2.  Tatro's state civil rights claim.                      2.  Tatro's state civil rights claim.                    Tatro also alleges  that the court  misled the jury  by          instructing  them that,  "as a  general  matter []  verbal abuse,          specifically,  being cursed  at  by a  police  officer, does  not          constitute a  violation of anyone's civil rights."   According to          Tatro, this  instruction was  error because  his case  contains a          claim under the Massachusetts Civil Rights Act, Mass. Gen. L. ch.          12,    11H and  I, which provides  for a cause  of action if  the          plaintiff's exercise  of constitutional rights is interfered with          by "threats, intimidation or coercion."                    In its charge  to the  jury regarding  the state  civil          rights  claim,  however,  the  court   carefully  delineated  the          statute's requirements:                      [T]he denial  of . . .  Mr. Tatro's civil                      rights by, it is alleged, Mr. Kervin, has                      to be accomplished by  threats, coercion,                      or intimidation.   A threat simply  means                      saying  or gesturing,  in effect,  if you                      don't do this, then something will happen                      to you.   Coercion  is making  someone do                      something  they  are  unwilling   to  do.                                        ____________________          5  Because  we have  already determined that  the district  court          committed  reversible  error  as  to the  other  charges,  it  is          unnecessary to analyze whether  the jury in this case  did indeed          misunderstand  the court's  "but for"  instructions.   On remand,          however, the court should  clarify its instructions in accordance          with our explanation.                                           -21-                      Intimidation is scaring  them into  doing                      something   or   refraining  from   doing                      something that otherwise  they would  do.                      If   you   find  threats,   coercion,  or                      intimidation, . . .  then he has proved a                      violation   of  the   Massachusets  civil                      rights statute.          Taken  together,  all  these  instructions on  the  civil  rights          statute are a thorough and appropriate explanation to the jury of          the plaintiff's  burden.  We do  not believe that  the jury could          have been misled  into thinking that being cursed at  by a police          officer  could  never constitute  threat  or  intimidation.   The                          _____          charges  read as a whole  merely state, accurately,  that a curse          does not violate any civil rights unless it rises to the level of                                            ______          a  threat or  an  attempt  to  intimidate.    Thus,  the  court's          statement was proper.                                    III.   CONCLUSION                                  III.   CONCLUSION                    For  the foregoing  reasons, the  verdict is  therefore          affirmed as to  the plaintiff's second  arrest, and reversed  and          _________________________________________________________________          remanded for new trial only as to the plaintiff's first arrest.          ______________________________________________________________                                         -22-
