United States Court of Appeals
For the First Circuit
No. 04-2251
MICHAEL FORGIE-BUCCIONI,
Plaintiff, Appellee,
v.
HANNAFORD BROTHERS, INC.,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. James R. Muirhead, U.S. Magistrate Judge]
Before
Selya, Circuit Judge,
Baldock,* Senior Circuit Judge,
and Howard, Circuit Judge.
William B. Pribis for appellant.
Steven M. Latici for appellee.
July 1, 2005
*
Of the Tenth Circuit Court of Appeals, sitting by
designation.
BALDOCK, Senior Circuit Judge. This diversity action
arises out of the arrest of Plaintiff Michael Forgie-Buccioni for
shoplifting. After his criminal case was dismissed, Plaintiff sued
Defendant Hannaford Brothers, Inc. alleging false imprisonment,
false arrest, malicious prosecution, and defamation. After a three
day trial, the jury returned a general verdict in favor of
Plaintiff and awarded him $100,000 in damages. Defendant appeals,
arguing that the district court: (1) erroneously instructed the
jury on false arrest under New Hampshire law; (2) erred in denying
it judgment as a matter of law on Plaintiff’s false imprisonment
claim; (3) erred in denying it judgment as a matter of law on
Plaintiff’s malicious prosecution claim; and (4) erred in denying
its motion for remittitur.1 We have jurisdiction, 28 U.S.C. §
1291, and affirm.
I.
The evidence presented at trial, viewed in a light most
favorable to the jury verdict, demonstrated the following:
Plaintiff and his companion, Lara McRuer, went shopping at
Defendant’s grocery store on the evening of July 30, 2001. Louis
Frender, the store’s night manager, saw Plaintiff and McRuer in the
store and immediately began videotaping them with the store’s
security system. Frender knew Plaintiff from a previous dispute
over video rental privileges at the store.
1
Defendant does not appeal the jury’s verdict on defamation.
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Plaintiff and McRuer completed shopping and paid for
their groceries. McRuer put the receipt in her wallet. Upon
leaving the store, however, Plaintiff and McRuer realized they had
purchased the wrong type of Drixoral (a cold and sinus medication).
Plaintiff returned to the store to exchange the Drixoral. Upon
reentering the store, Plaintiff testified that he informed a store
clerk of his intent to exchange the Drixoral. Plaintiff left the
Drixoral at a vacant checkout counter. He returned to the drug
aisle and obtained a different type of Drixoral. Plaintiff also
grabbed some bottled water. He then proceeded to a checkout
register, told a different clerk he already had paid for the
Drixoral, paid for the water, and left the grocery store.
Meanwhile, Frender asked the clerk who checked Plaintiff
out the second time whether Plaintiff had paid for the Drixoral.
The clerk said no. Frender pursued Plaintiff outside the store.
Frender apprehended Plaintiff in the parking lot and asked him to
return to the store. Plaintiff complied. Frender and another
store employee escorted Plaintiff to the store’s security room and
began questioning him about the Drixoral.
Frender subsequently called the Franklin Police
Department. Officer Scott Tompkins responded. Frender showed
Officer Tompkins the portion of the surveillance videotape
beginning when Plaintiff reentered the store and left without
paying for the second box of Drixoral. Officer Tompkins contacted
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McRuer, who informed him that Plaintiff simply wanted to exchange
the Drixoral. Officer Tompkins nevertheless arrested Plaintiff for
shoplifting. The State charged Plaintiff with shoplifting;
however, a New Hampshire court later dismissed the criminal case.
This suit followed.
II.
A.
First, Defendant argues the district court erroneously
instructed the jury on false arrest because: (1) the court’s false
arrest instruction punishes citizens for reporting crimes in good
faith if the arrest is later found to be technically unlawful; (2)
the instruction negates the merchant’s privilege; and (3) the court
erroneously instructed the jury that Plaintiff’s arrest was
unlawful as a matter of law. Where, as here, abstract errors of
law are claimed, we review jury instructions de novo. Goodman v.
Bowdoin College, 380 F.3d 33, 47 (1st Cir. 2004). “An erroneous
jury instruction warrants a new trial if the preserved error, based
on a review of the entire record, can fairly be said to have
prejudiced the objecting party.” Id. (internal quotation and
citation omitted). The district court’s false arrest jury
instruction stated in relevant part:
False arrest is a form of false imprisonment. To be
found liable on this claim, Hannaford Brothers, Inc. must
have instigated or participated in the unlawful arrest of
Mr. Forgie-Buccioni.
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In the instance of an arrest without a warrant, the
law of arrest determines whether the arrest was lawful.
New Hampshire Revised Statutes Annotated (“RSA”) 594:10
provides in relevant part that:
I. An arrest by a peace officer without a warrant
on a charge of a misdemeanor or a violation is
lawful whenever:
(a) He has probable cause to believe that the
person to be arrested has committed a misdemeanor
or violation in his presence;
. . .
If the arrest is unlawful under the law of arrest,
the good faith of the instigator or participator, or
his/her reasonable belief that the arrest is authorized
or justified is not a defense. Probable cause is not a
defense to an action for false imprisonment, if the
arrest is otherwise unlawful. I instruct you that the
arrest of Mr. Forgie-Buccioni by the Franklin Police was
unlawful under the facts of this case. . . .
Instigation consists of words or acts which direct,
request, invite or encourage the false imprisonment
itself. . . . It is not enough for instigation that the
actor has given information to the police about the
commission of a crime, or has accused the other of
committing it, so long as he leaves to the police the
decision as to what shall be done about any request,
without persuading or influencing them.
Therefore, the only issue for you to decide in this
count is whether Hannaford Brothers, Inc. instigated or
participated in the arrest. If it did you must find for
the plaintiff on this count. If not then you must find
for the defendant on this count.
We discuss and reject Defendant’s three arguments in turn.
First, the instruction does not hold citizens who simply
report crimes liable for an unlawful arrest. The district court
expressly instructed the jury that it could only find false arrest
if Defendant “instigated” or “participated” in the arrest. This
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was a correct statement of law. See Restatement (Second) of Torts
§ 45A; N.H. Civil Jury Instr. § 19.1, committee cmt. To
“instigate” or “participate,” as the district court aptly
explained, means more than “giv[ing] information to the police
about the commission of a crime.” Restatement (Second) of Torts
§ 45A, cmt. c. Instead, “[i]nstigation consists of words or acts
which direct, request, invite or encourage the false imprisonment.”
Id.; see also Harper, James, Gray The Law of Torts § 4.11, at
4:121-22 (3d ed. 1995) (explaining that while the mere giving of
inaccurate information is not a basis for liability, a private
citizen who knowingly conveys false information to the police may
be held liable for a subsequent false arrest). The jury found
Defendant instigated and/or participated in Plaintiff’s unlawful
arrest if we presume (as we must) that it followed the court’s
instruction. See Sheek v. Asia Badger, Inc., 235 F.3d 687, 698
(1st Cir. 2000). Thus, the jury did not “punish” Defendant for
reporting a crime in good faith nor did it find Defendant
vicariously liable for the actions of the police. To the contrary,
the jury held Defendant liable and compensated Plaintiff for his
injuries as a result of Defendant’s independent tortious conduct;
that is, for “persuading” or “influencing” Officer Tompkins in the
decision to arrest Plaintiff.
Second, the false arrest instruction does not negate the
merchant’s privilege. According to Defendant, the court’s
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instruction that “the good faith of the instigator or participator,
or his/her reasonable belief
. . . is not a defense,” conflicts with and negates the merchant’s
privilege, which permits a merchant to detain a customer if they
have “reasonable grounds to believe” that a customer has
shoplifted. N.H. Rev. Stat. Ann. § 627:8-a. The court’s false
arrest instruction, however, only references the “reasonable
belief” and “good faith” of the instigator if “the arrest is
unlawful.” The court instructed the jury that as a matter of law,
the arrest was unlawful. The disputed language, therefore, was
entirely superfluous and the jury never had occasion to consider
the language.2 Further, the jury’s verdict demonstrates, through
a special interrogatory finding, that Frender was aware Plaintiff
reentered the store carrying a box of Drixoral. The jury’s finding
undermines Defendant’s contention that the jury would have applied
the merchant’s privilege. The finding clearly shows the jury
determined Defendant did not have “reasonable grounds” to believe
Plaintiff was shoplifting. N.H. Rev. Stat. Ann. § 627:8-a. Thus,
2
Moreover, the district court correctly instructed the jury
that the good faith intentions or reasonable belief of a defendant
are irrelevant for purposes of false arrest. See Hickox v. J.B.
Morin Agency, Inc., 272 A.2d 321, 324 (N.H. 1970); see also
Restatement (Second) of Torts § 45A, cmt. d. (noting “the good
faith of the instigator, or his reasonable belief that the arrest
is authorized and justified, will not protect him”); see also N.H.
Civil Jury Instr. § 19.1, committee cmt.
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the jury had independent grounds to, and did, reject the merchant’s
privilege defense.
Third, the district court correctly instructed the jury
that Plaintiff’s arrest was unlawful as a matter of law. Officer
Tompkins did not have probable cause to believe Plaintiff committed
a misdemeanor in his presence as required under N.H. Rev. Stat.
Ann. § 594:10(I)(a). Although Officer Tompkins watched a partial
videotape of Plaintiff allegedly shoplifting, neither Officer
Tompkins nor any other police officer observed Plaintiff
shoplifting. See State v. Leary, 573 A.2d 135, 136 (N.H. 1990)
(indicating that the “presence” requirement is met only when an
officer, or a member of his law enforcement team, actually observes
a misdemeanor occur); State v. Standish, 363 A.2d 404, 405 (N.H.
1976); see also Topp v. Wolkowski, 994 F.2d 45, 48-49 (1st Cir.
1993). Defendant fails to cite any New Hampshire law supporting
its proposition that a videotape alone provides a sufficient basis
to satisfy the “presence” requirement for warrantless arrests under
§ 594:10(I)(a). We are reluctant to engraft such an interpretation
on § 594:10(I)(a) when the New Hampshire Supreme Court has
interpreted the statute, quite logically, according to its plain
language. See Gill v. Gulfstream Park Racing Ass’n, Inc., 399 F.3d
391, 402 (1st Cir. 2005) (noting “[a] federal court sitting in
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diversity cannot be expected to create new doctrines expanding
state law”).3
The court’s false arrest jury instruction does not
warrant a new trial in this case. The jury instructions, as a
whole, “adequately illuminate[d] the law applicable to the
controlling issues” and did not mislead the jury. Levinsky’s, Inc.
v. Wal-Mart Stores, Inc., 127 F.3d 122, 135 (1st Cir. 1997). We
thus proceed to Defendant’s second alleged claim of error.
B.
Second, Defendant argues the district court erred in
denying its motion for judgment as a matter of law on Plaintiff’s
false imprisonment claim. We review the denial of a motion for
judgment as a matter of law de novo, taking the evidence in the
light most favorable to Plaintiff. Currier v. United Tech. Corp.,
393 F.3d 246, 254 (1st Cir. 2004). “We must affirm unless the
evidence was so strongly and overwhelmingly inconsistent with the
verdicts that no reasonable jury could have returned them.” Id.
(internal quotation omitted).
Under New Hampshire law, “[f]alse imprisonment is the
unlawful restraint of an individual’s personal freedom.” Hickox v.
J.B. Morin Agency, Inc., 272 A.2d 321, 323 (N.H. 1970)(citing
Restatement (Second) of Torts § 35). The essential elements of
3
Although § 594:10(I) contains two other subsections,
Defendant does not argue the subsections apply and only relies upon
subsection (a). We do the same.
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false imprisonment are: (1) defendant acted with the intent to
restrain or confine plaintiff within boundaries fixed by the
defendant; (2) defendant’s act directly or indirectly resulted in
such restraint or confinement of plaintiff; and (3) plaintiff was
conscious of and harmed by the restraint or confinement. N.H. Civ.
Jury Instr. § 19.1; Restatement (Second) of Torts § 35.
“[C]onfinement can be imposed by physical barriers or physical
force.” McCann v. Wal-Mart Stores, Inc., 210 F.3d 51, 53 (1st Cir.
2000) (citing Restatement (Second) of Torts § 40).
The district court did not err when it denied Defendant’s
motion for judgment as a matter of law on Plaintiff’s false
imprisonment claim. Drawing all reasonable inferences in
Plaintiff’s favor and assuming the jury resolved credibility issues
consistent with the verdict, see id. at 54, a reasonable jury could
have concluded: Defendant’s employees intended to confine
Plaintiff; Defendant’s actions resulted in such confinement; and
Plaintiff was aware of the confinement. Plaintiff testified that
Frender escorted him back into Defendant’s store with his hand on
his arm. Although Plaintiff testified he voluntarily returned to
the store, he later explained that he did not feel free to leave
the store any time thereafter. Once inside the store, Frender
“kept pushing” Plaintiff towards the store’s security room.
Plaintiff explained: “I wasn’t free to leave, and I was being very
matter of factly taken to the back of this area of the store
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escorted by not one but two people.” Frender sat Plaintiff in the
back of the security room and a store employee sat next to
Plaintiff “[t]he entire time.” Thereafter, Plaintiff testified
that when he had to use the restroom, Frender personally escorted
him and stood outside the restroom door. Plaintiff again
explained: “I was being detained. I wasn’t free to leave.”
Plaintiff also explained that he waited thirty to forty minutes
until Officer Tompkins arrived. While waiting, Plaintiff began to
feel “shaky and nervous and lightheaded” due to his hypoglycemia.
When McRuer returned to the store to check on Plaintiff, she was
told that she could not see Plaintiff. Based upon this and other
evidence in the record, a reasonable jury could have easily
concluded that Defendant unlawfully restrained or confined
Plaintiff.
C.
Third, Defendant argues the district court erred in
denying its motion for judgment as a matter of law on Plaintiff’s
malicious prosecution claim. Specifically, Defendant argues
Frender had probable cause to believe Plaintiff was shoplifting.
To succeed in an action for malicious prosecution under New
Hampshire law, “the plaintiff must prove that he was subjected to
a criminal prosecution [procured or] instituted by the defendant
without probable cause and with malice, and that the criminal
proceeding terminated in his favor.” Stock v. Byers, 424 A.2d
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1122, 1123 (N.H. 1980); see also N.H. Civil Jury Instr. § 21.1.
“Probable cause in the malicious prosecution context has long been
defined as such a state of facts . . . as would lead a man of
ordinary caution and prudence to believe or entertain an honest and
strong suspicion that the person arrested is guilty.” Stock, 424
A.2d at 1123 (internal quotation omitted). Whether probable cause
exists is a mixed question of law and fact; that is, the court must
submit conflicting evidence proffered on the issue of probable
cause to the jury and then determine, based upon the facts the jury
found, the ultimate issue of whether probable cause exists. Id. at
1123-24.
In accordance with New Hampshire law, the district court
correctly submitted a special “probable cause” interrogatory to the
jury. The interrogatory asked the jury whether it found “by a
preponderance of the evidence that Mr. Frender was aware that Mr.
Forgie-Buccioni had a box of Drixoral with him when he returned to
[Defendant’s] store after shopping with his companion.” The jury
answered “yes.” In affirmatively answering the court’s question,
the jury necessarily made credibility determinations and resolved
conflicts in the testimony which we may not reconsider. See White
v. New Hampshire Dep’t of Corrections, 221 F.3d 254, 259 (1st Cir.
2000) (noting “we may not consider the credibility of witnesses,
resolve conflicts in testimony, or evaluate the weight of the
evidence.”).
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Further, the jury’s factual findings foreclose
Defendant’s argument because Frender did not have probable cause to
believe Plaintiff shoplifted if, as the jury found, Frender was
aware Plaintiff returned to the store with a box of Drixoral.
See Stock, 424 A.2d at 1123. The evidence supports the jury’s
finding. Frender videotaped Plaintiff’s entire shopping trip. He
observed Plaintiff and McRuer pay for their groceries and obtain a
receipt. Frender then saw Plaintiff reenter the store. At this
moment, according to the evidence and the jury’s findings, Frender:
(1) was aware Plaintiff had a box of Drixoral; (2) saw Plaintiff
obtain a different kind of Drixoral; and (3) was informed Plaintiff
claimed to have already paid for the Drixoral. Based upon this
knowledge, Frender simply did not have an “honest and strong
suspicion,” id., Plaintiff was shoplifting when he contacted the
Franklin Police Department and instigated criminal proceedings
against Plaintiff. The district court, therefore, did not err in
denying Defendant’s motion for judgment as a matter of law on
Plaintiff’s malicious prosecution claim.
D.
Fourth, Defendant argues the district court erred when it
denied its motion for remittitur. We review the district court’s
denial of remittitur for an abuse of discretion. Rivera Castillo
v. Autokirey, Inc., 379 F.3d 4, 13 (1st Cir. 2004). To be entitled
to remittitur, the party challenging the verdict must establish
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that the damage award is grossly excessive, inordinate, shocking to
the conscience of the court, or so high that it would be a denial
of justice to permit the award to stand. Havinga v. Crowley Towing
& Transp. Co., 24 F.3d 1480, 1484 (1st Cir. 1994). “An appellate
court’s normal disinclination to second-guess a jury’s evaluation
of the proper amount of damages is magnified where . . . the
damages entail a monetary valuation of intangible losses, and the
trial judge, having seen and heard the witnesses at first hand,
accepts the jury’s appraisal.” Correa v. Hospital San Francisco,
69 F.3d 1184, 1197 (1st Cir. 1995).
Based upon the evidence in the record, the jury’s damage
award of $100,000 is not so grossly excessive that justice would be
denied if we permitted the award to stand. Evidence shows
Plaintiff incurred legal fees of over $15,000 in defending against
his criminal charges. Plaintiff also suffered several “intangible
losses.” Plaintiff testified, among other things, that he nearly
suffered from hypoglycemic shock while detained in Defendant’s
store, was humiliated when escorted out of the store in handcuffs,
and that the arrest affected his reputation. Furthermore,
Plaintiff relocated to Florida shortly after his arrest and had to
travel back to New Hampshire several times to defend against his
criminal charges. We decline to second-guess the jury’s evaluation
of Plaintiff’s losses. Further, the presiding judge, who saw and
heard the witnesses first hand, specifically noted the “jury’s
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verdict, based upon my observation of the evidence and the
knowledge and experience I gained in trying and settling similar
cases while in private practice, is fair and reasonable.” We
respect the court’s judgment. The district court did not abuse its
discretion in denying Defendant’s motion for remittitur.
AFFIRMED.
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