Parker v. City of Nashua

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

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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

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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.

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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

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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

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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).

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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).

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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

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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,

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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

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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

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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).

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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.

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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.

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