
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1210                                  SHARON L. PARKER,                                 Plaintiff, Appellee,                                          v.                        CITY OF NASHUA, NEW HAMPSHIRE, ET AL.,                                Defendants, Appellees.                                      __________                       F. SHEEHAN, IN HIS OFFICIAL CAPACITY AS                               A NASHUA POLICE OFFICER,                                Defendant, Appellant.                                 ____________________        No. 94-1272                                  SHARON L. PARKER,                                Plaintiff, Appellant,                                          v.                        CITY OF NASHUA, NEW HAMPSHIRE, ET AL.,                                Defendants, Appellees.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                   [Hon. Shane Devine, Senior U.S. District Judge]                                       __________________________                                 ____________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Bownes, Senior Circuit Judge,                                    ____________________                             and Boudin, Circuit Judge.                                          _____________                                 ____________________            Thomas  Quarles,  Jr. and  Dyana  J.  Crahan with  whom  Robert E.            _____________________      _________________             _________        McDaniel  and Devine,  Millimet  & Branch,  P.A.  were on  briefs  for        ________      __________________________________        defendants.              Francis  G. Murphy,  Jr. with  whom  Joseph  F. Keefe,  Kathryn B.            ________________________             ________________   __________        Johnston,  and Hall, Hess, Kenison, Stewart, Murphy & Keefe, P.A. were        ________       __________________________________________________        on briefs for plaintiff.                                  ____________________                                   February 5, 1996                                 ____________________                 BOUDIN, Circuit  Judge.   In the district  court, Sharon                         ______________            Parker  was awarded substantial damages by a jury which found            that a police officer  had violated her rights in  the course            of  an arrest.    On  this  appeal,  almost  the  only  issue            presented, and  certainly the only one warranting discussion,            is  a claim that the  district court erred  in describing for            the jury  the state  disorderly conduct  statute used by  the            police officer to justify Parker's arrest.  Because the issue            is narrowly framed, our description of the factual background            is brief.                 Late  in  the  evening  of  February  10,  1990,  Parker            returned by car to her parents' house in downtown Nashua, New            Hampshire, from  a dance at the local Moose Club.  There were            six  passengers in the car:  Parker and her husband, Parker's            parents,  her  sister,  and  her  sister's  companion.    The            companion owned and drove the vehicle.  Parker has a disorder            affecting the left side of her body;  and for this reason she            does not drink alcohol.                 When the car reached  the house, Parker and  her husband            entered  their own car,  which had been left  in front of the            house prior  to the dance.   At that  point a police  cruiser            driven by officer  James Lima pulled  up behind the  Parkers'            car and flashed its  light.  The officer previously  had been            parked by the side of the road when Parker and her companions            drove  by, en route from the dance  to the home of the Parker                                         -3-                                         -3-            parents.  The  officer later testified  that he thought  that            the car's  driver had  committed traffic violations.   It  is            unclear whether the  officer confused the two  cars, but when            Parker got out of her own vehicle in response to the flashing            lights, the officer asked for her license and registration.                 At  this  point, the  police  version  of what  occurred            begins  to  diverge sharply  from  that  of  Parker  and  her            companions.  According to Lima, he was  assaulted by Parker's            husband, Parker's  sister, and the sister's  companion.  Lima            pressed a button  calling for  emergency backup.   Two  other            officers  arrived.    The  struggle  continued  and  Parker's            husband was  buffeted.  Ultimately, the  husband, sister, and            sister's  companion were  arrested.   By this  time, Parker's            parents and others had come out to the scene.                 Additional  police  arrived,  including   Officer  Frank            Sheehan, who  eventually  arrested Parker  herself.   Officer            Sheehan's later testimony was that he saw  Parker standing in            the road  yelling at  the other officers,  using obscenities.            He  told her to quiet down and  leave the road.  According to            Sheehan,  eventually   Parker  moved  to  the   sidewalk  but            continued  to yell.  At  that point Sheehan  said he arrested            Parker for disorderly conduct.                 Parker's description  of events is quite  different.  In            her own later  testimony, she  denied being in  the road  and            claimed  to have said to Officer Sheehan only that she wanted                                         -4-                                         -4-            to go  to the police  station with her husband  who was being            arrested.   Sheehan, she  says, responded with  an obscenity,            declaring  that  the  police car  was  not  a  taxi.   Parker            testified that  she simply turned away and  walked toward the            house,  saying  to  her  mother   that  this  was  "the  most            unbelievable thing I've ever seen."                 In  all  events,  Parker  was  handcuffed,  offering  no            resistance.   She  later offered  medical testimony  that her            shoulder and upper arm, already susceptible to injury because            of   her  medical   condition,   were  wrenched   during  the            handcuffing.   Then, en route to the police cruiser, she says            that she  was pulled or  tugged by the handcuffs  so that she            fell on the ground and was then dragged by the  police over a            snow bank.  The police version is that this was an accidental            fall.                 Parker was  arrested  for and  charged  with  disorderly            conduct.    The  charges   were  eventually  dropped  by  the            authorities.  In due  course, she brought the present  action            in  district  court against  the City  of Nashua,  the Nashua            Police Department  and  various officers  including  Sheehan.            Her federal  claim under 42  U.S.C.   1983  was based on  her            rights under the Fourth and Fourteenth Amendments to be  free            from  unreasonable  seizure.   She  also  asserted state  law            claims  based on her allegedly unlawful arrest.  The case was            tried before a jury in January and February 1994.                                         -5-                                         -5-                 At  the  trial,  Parker  and the  police  offered  their            respective  versions  of  what   had  happened.    There  was            testimony  from  Parker,  Sheehan   and  a  number  of  other            witnesses  on both sides who  had been present  at the scene.            Parker, who was a government social worker, proffered medical            and economic evidence to support a very substantial  award of            damages.   The  jury  returned a  large  verdict  for  Parker            against  Sheehan (although  smaller than  requested), finding            specially that  Parker's rights under both  federal and state            law had been infringed.                 On this  appeal, defendants'  central claim is  that the            district court erred  in failing to charge  the jury properly            as to the offense for which Parker was arrested.  The premise            of  Parker's claim was that she had been arrested even though            the  police lacked  probable  cause to  believe that  she had            committed  or was  committing an  offense.   See  Michigan v.                                                         ___  ________            DeFillippo,  443 U.S. 31, 36  (1979).  To  decide whether the            __________            police  had probable cause, the  jury had to  match what they            found  to  be  the  facts--more  accurately,  the  reasonable            perception of police as  to those facts--against the elements            of the offense.                 The New Hampshire disorderly conduct  statute, N.H. Rev.            Stat.  Ann.     644:2,  comprises  the   misdemeanor  offense            labelled disorderly conduct; but the statute, reprinted in an            appendix to  this opinion,  describes nine different  ways of                                         -6-                                         -6-            committing  the  offense and  covers over  a page  of single-            spaced  text.   Several  of  the  offenses  described in  the            statute  were arguably  pertinent  to the  police version  of            events;  others--e.g.,  interference   with  a   firefighting                             ____            operation or obstructing the  entrance to a public building--            had nothing whatever to do with the arrest.                 A reading of Sheehan's trial testimony strongly suggests            that the disorderly conduct offense that he  deemed Parker to            have committed  fell under  section III(a) of  the disorderly            conduct statute.   That provision is  directed at anyone  who            purposely causes a  breach of the peace, annoyance  or alarm,            or reckless  risk of  these consequences,  by making  loud or            unreasonable  noises   in  a  public  location.     Sheehan's            testimony at  trial emphasized the  loud noises that  he said            Parker was making and the risk that the gathering crowd would            be incited.                 It  is difficult to be sure just how the parties treated            the matter when presenting  their case, because parts of  the            transcript  (e.g., the  closing  statements)  have  not  been                         ____            provided by defendants.  But it is clear that when it came to            charging  the jury,  the defense  in its  requests to  charge            asked  the judge to read almost all of the disorderly conduct            statute to the jury.  The trial judge confined  his charge to            the  loud noise  offense  described in  section III(a).   The                                         -7-                                         -7-            court's refusal to  charge more  broadly is  now assigned  as            error.                 We will assume for purposes  of this appeal that Sheehan            was entitled at trial  to justify his arrest of  Parker under            any  provision of  the  disorderly conduct  statute that  the            evidence  at trial might show to have applied to her conduct.            There was some  evidence from the police witnesses to suggest            that  Parker used obscenities  and refused  to comply  with a            lawful police  order; it is  more doubtful that  the evidence            showed any obstruction of  traffic.  Thus a request  that the            jury  be instructed  as  to  at  least  two  of  these  other            disorderly conduct offenses was arguably proper.1                 An  initial  difficulty  is  that  Fed.  R.  Civ.  P. 51            provides  that "[n]o  party may  assign as  error .  . .  the            failure  to give  an  instruction unless  that party  objects            thereto  before the  jury  retires to  consider its  verdict,            stating distinctly the matter objected to and  the grounds of            the  objection."  Further, to satisfy Rule 51 "the judge must            be told precisely  what the problem  is, and as  importantly,                    _________            what  the attorney would consider a satisfactory cure."  Linn                                                                     ____            v. Andover  Newton Theological  School, Inc.,  874 F.2d  1, 5               _________________________________________            (1st  Cir. 1989).    And the  lawyer  must propose  a  lawful                                            ____________________                 1We say "arguably" because the problem  of justifying an            arrest on grounds not invoked at  the time becomes especially            complicated  where some of the facts were known only to other            officers.   See generally 2  W. LaFave, Search  and Seizure                          _____________               ___________________            3.5(c) (2d ed. 1987); id.    5.1(e).                                  ___                                         -8-                                         -8-            instruction  or  correction, and  not one  that substantially            overstates  the  law  in  that  party's  favor.    Scarfo  v.                                                               ______            Cabletron Systems, Inc., 54 F.3d 931, 944 (1st Cir. 1995).            _______________________                 In  this instance,  after the district  court instructed            the jury, defense counsel promptly objected to the failure to            read  the "entire  disorderly conduct  statute" to  the jury.            When  the court said that  Parker had been  charged only with            violating  section  III(a)  and  "[n]obody   claims  she  was            violating the rest of it," defense counsel responded:                      We adduced testimony in evidence that she                      violated  that  section  where   she  was                      declining  to  comply  with a  reasonable                      order of a police officer,  which I think                      is  toward  the  end of  the  substantive                      sections of it.            The  trial judge  said  that  he  did  not  think  that  "it"            (presumably referring  to the evidence) would  support such a            charge, noted defense counsel's objection, and moved on.                 The defense gave the district court no justification for            reading  the  entire statute  to the  jury  and so  failed to            tender a legally correct instruction.  This requirement is no            formality:  the trial court, especially in hearing objections            after the instructions have been given, is making on-the-spot            choices;  and when the  instruction offered by  the lawyer is            manifestly overbroad, the district  judge may reject  without            assuming the burden  of editing  it down to  save some  small            portion  that may  be viable.    Chase v.  Consolidated Foods                                             _____     __________________            Corp., 744 F.2d 566, 570 (7th Cir. 1984).            _____                                         -9-                                         -9-                 Certainly  in this  case  the defense  request that  the            court read to the  jury almost all of the  disorderly conduct            statute was properly denied.  A number of the offenses listed            had no possible relevance to the case.  On appeal, defendants            make  no attempt  to show  otherwise.   To allow the  jury to            wander aimlessly among the various paragraphs would have been            an invitation to confusion  and would be no more  proper than            reading  to  the jury  in a  criminal  case a  description of            offenses with which the defendant was not charged.                 The  story of  the  requested instruction  is not  over.            During jury  deliberations, the  jury  submitted a  question,            "Can we got a copy of the disorderly conduct  law; i.e., what            constitutes this violation."   At this point, defense counsel            again  stated  that  the   entire  statute  should  be  read,            asserting  that  the  question  for  the  jury  was  "whether            probable cause  existed  for  the officer  on  the  scene  to            believe  that   the  plaintiff  committed   the  offense   of            disorderly  conduct."   The court  refused to read  the whole            statute, and  instead reread its original  instruction to the            jury.  Defense counsel then objected:                      Your Honor, we simply object to the Court                      not describing all  the circumstances  in                      the  statute  where a  person  can commit                      disorderly  conduct  or  when an  officer                      could reasonably  believe that disorderly                      conduct  was  committed,  especially  the                      sections of  the statute which  relate to                      engaging   in   tumultuous  behavior   or                      knowingly  refusing  to  comply with  the                      lawful order of  a peace officer to  move                                         -10-                                         -10-                      from any public place, which by itself is                      enough, or directing obscene  language or                      obstructing   vehicular   or   pedestrian                      traffic on the street, all of which there                      is testimony on.                 This court  has not  decided whether an  initial request            for   an  instruction,   not  properly   presented,   can  be            resurrected  by  a  proper  request  made  when  the jury  is            reinstructed.   Surely when a new instruction is given to the                                          ___            jury during  its deliberations,  a new opportunity  exists to            object or propose changes; but few cases address what happens            when the jury is simply given  the original instruction again            and  the  lawyer   now  makes  an  objection,  or   seeks  an            alternative, that was not  properly presented before.  Wright            & Miller treat the reread instruction as reopening the matter            entirely, but the case law is sparse, and we are less certain            that any  blanket rule governs.  See  generally 9 A. Wright &                                             ___  _________            C.  Miller, Federal  Practice and  Procedure    2553,  at 516                        ________________________________            (1995).                 In all events, the new request made here at the time  of            rereading repeated  the original unjustified request that the                      ________            entire  disorderly conduct statute be read to the jury.  This            time defense counsel enlarged the number of specific offenses            for  which  he  claimed  to  find  support  in  the evidence,            referring to  tumultuous behavior, refusing to  obey a lawful            order, making  obscene remarks and  obstructing traffic--"all            of which [he  said] there is testimony on."   But once again,                                         -11-                                         -11-            the  request that the entire  statute be read  is far broader            than anything to which counsel was entitled.                 It  is  possible,  with  great  generosity,  to construe            defense counsel's  oral objections--both  at the time  of the            original instruction  and at its rereading--as an alternative            request to charge the jury only as to the specific disorderly            conduct provisions  for which  the defense claimed  there was            evidence  (e.g., refusal to  obey a lawful  order).  Standing                       ____            alone,  this would  not  be enough  because  it is  counsel's            obligation to  communicate clearly with the  judge in seeking            instructions, Scarfo,  54 F.3d at 947,  and counsel's request                          ______            was  far from  clear.   On  the  other hand,  there was  some            indication that  the trial  judge did consider  whether other            portions of the disorderly conduct statute should be read and            thus was not entirely misled by the garbled objection.                 Even if  we  treated  the request  for  a  more  limited            instruction as  properly preserved  (and this is  a stretch),            the failure to give the more limited instruction was patently            harmless  in  this  case.     Vera-Lozano  v.   International                                          ___________       _____________            Broadcasters, 50 F.3d 67, 71 (1st Cir. 1995).   Our reason is            ____________            not lack of evidence.   Although we can understand  the trial            judge's doubts on  this point, Sheehan  can make a  colorable            claim that  even his  own testimony supported  the conclusion            that Parker yelled obscenities,  refused to move promptly out            of the street, or both.  When one adds fragments of consonant                                         -12-                                         -12-            testimony  from  other  officers,  there  are  at  least  two            provisions of  the  disorderly conduct  statute  under  which            Parker could have been charged, apart from excessive noise.                 What persuades us that the error (if any) is harmless is            this:   Parker on  the one hand  and the police  on the other            gave coherent but directly conflicting versions of the events            relating to Parker.   Those  versions were each  of a  piece:            Sheehan,  with some  support from  other officers,  said that            Parker  had been  standing in  the street yelling  at police,            used  swear words, and did not promptly obey an order to move            onto the sidewalk  and shut up.  Parker's  version, supported            by  other witnesses, is that she had been standing behind one            of  the parked cars, had  caused no disturbance  and had done            nothing  more than  make a  properly phrased  request to  the            officer to accompany her husband.                 The jury  heard all  this testimony from  the witnesses,            and  obviously accepted Parker's version of events.  It is to            us  inconceivable  that  the  jury would  have  decided  this            conflict of fact in favor of the defense if only  it had been                        ____            told that several other  provisions of the disorderly conduct            might also  have been violated  if the police  testimony were            accepted.    The  main  thrust  of  Sheehan's  testimony  was            Parker's standing in the  street yelling, despite his efforts            to  get  her  to stop;  the  other  violations  were at  best            ancillary.   There is no plausible way that this jury, having                                         -13-                                         -13-            rejected the essence of the police  testimony, would or could            nevertheless  have  found  in  Sheehan's  favor  based  on  a            slightly fuller account of what the statute provided.                 Our conclusion is not  based on any judgment of  our own            as  to what the evidence  proved to have  happened.  Although            Parker's brief portrays the police engaged in something close            to a police  riot, there  is some indication  that others  in            Parker's party may have been at least partly at fault for the            disturbance.   But  the  evidence was  certainly adequate  to            support  the jury verdict in favor of Parker on her own claim            of wrongful arrest, and  the verdict was not affected  by the            omission  of   a  more  complete  instruction  on  disorderly            conduct.                 The defense brief also  contends that the district court            erred in failing to  give an instruction, in relation  to the            state-law  claims  made  by  Parker,  that  the  police  were            privileged to use reasonable  force to prevent perceived harm            to  officers   or  the   public.    Although   the  privilege            instruction was requested by the defense, no proper objection            to  its omission was made  after the district  court gave its            charge  and  omitted  the   requested  paragraph.    In  this            instance, the  failure to object properly  is beyond dispute.            The  omitted instruction  did not  lead to  a miscarriage  of            justice, so  there is  no basis  for a claim  of plain  error            under United States v. Olano, 507 U.S. 725 (1993).                  _____________    _____                                         -14-                                         -14-                 Defendants have urged, contingently, that  the new trial            they  request should  be limited  to  liability.   Parker has            filed a contingent cross appeal urging that in any new trial,            she should be allowed to introduce additional evidence in her            favor--e.g., that the police sought  to obtain a release from                   ____            her--which  the district court did not permit her to offer in            the  original trial.  Because we affirm the judgment in favor            of Parker, these contingent requests need not be reached.                 Affirmed.                 ________                                         -15-                                         -15-                                       APPENDIX                 RSA 644:2 Disorderly Conduct.  A person is guilty of                  RSA 644:2 Disorderly Conduct.            disorderly conduct if:                 I.  He knowingly or purposely creates a condition  which            is hazardous to himself  or another in a public  place by any            action which serves no legitimate purpose; or                 II.   He:                 (a)  Engages in fighting or in violent, tumultuous or            threatening behavior in a public place; or                 (b) Directs at another person in a public place obscene,            derisive, or  offensive words which  are likely to  provoke a            violent reaction on the part of an ordinary person; or                 (c)  Obstructs vehicular  or pedestrian  traffic  on any            public  street or  sidewalk  or the  entrance  to any  public            building; or                 (d)  Engages   in  conduct  in  a   public  place  which            substantially  interferes with  a  criminal investigation,  a            firefighting operation to which RSA 154:17 is applicable, the            provision of emergency medical treatment, or the provision of            other   emergency  services   when   traffic  or   pedestrian            management is required; or                 (e) Knowingly refused to comply with a lawful order of a            peace officer to move from any public place; or                 III.  He purposely causes a breach of the peace, public             inconvenience,  annoyance or  alarm, or recklessly  creates a            risk thereof, by:                 (a)  Making  loud or  unreasonable  noises  in a  public            place, or  making loud  or unreasonable  noises in a  private            place which can  be heard in a public place  or other private            places,  which  noises  would  disturb a  person  of  average            sensibilities; or                 (b) Disrupting  the orderly  conduct of business  in any            public or governmental facility; or                 (c) Disrupting any lawful assembly or meeting of persons            without lawful authority.                 IV.  In this section:                 (a) "Lawful order: means:                    (1)    A command issued to any person for the purpose                           of preventing said person from  committing any                           offense set  forth in this section,  or in any                           section of  Title LXII or Title  XXI, when the                           officer has reasonable grounds to believe that                           said  person  is  about  to  commit  any  such                           offense, or  when said person is  engaged in a                           course  of conduct which  makes his commission                           of such an offense imminent; or                    (2)    A  command issued  to any  person to  stop him                           from  continuing  to  commit  any  offense set                           forth in  this section,  or in any  section of                           Title LXII or Title  XXI, when the officer has                           reasonable grounds to believe that said person                           is   presently   engaged   in  conduct   which                           constitutes any such offense.                 (b)  "Public place" means any  place to which the public                      or  a  substantial  group  has access.    The  term                      includes,  but  is  not  limited  to,  public ways,                      sidewalks,  schools, hospitals,  government offices                      or facilities,  and  the  lobbies  or  hallways  of                      apartment buildings, dormitories, hotels or motels.                 V.   Disorderly conduct is a misdemeanor if the offense            continues after a request by any person to desist; otherwise,            it is a violation.                                           -17-                                         -17-
