Tatro v. Kervin

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

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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

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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,

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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

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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

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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).

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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

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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:

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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

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(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

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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

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"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,"

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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.

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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

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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.

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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.

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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

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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

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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.

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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.

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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.

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