U.S. v. Johnstone
| Citation | 107 F.3d 200 |
| Decision Date | 24 February 1997 |
| Docket Number | No. 95-5833,95-5833 |
| Parties | UNITED STATES of America, Appellee, v. Ronald JOHNSTONE, Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
Gerald Krovatin (argued), David W. Fassett, Arseneault & Krovatin, Chatham, NJ, for Appellant.
Deval L. Patrick, Assistant Attorney General, David L. Flynn, Linda F. Thome, Michelle Aronowitz (argued), United States Department of Justice, Civil Rights Division, Washington, DC, Faith S. Hochberg, United States Attorney, Kevin McNulty, Amy S. Winkelman, Assistant United States Attorneys, Newark, NJ, for Appellee.
Before: BECKER, MANSMANN, Circuit Judges, and SCHWARZER, District Judge. *
This appeal by Ronald Johnstone, a former municipal police officer, in a federal criminal civil rights case, 18 U.S.C. § 242, requires us to consider the correctness of jury instructions concerning the excessive force and intent elements of that offense. We must also determine the propriety of a sentencing guideline enhancement for use of a dangerous weapon. 1 For the reasons that follow, we will affirm.
Johnstone and Richard Poplaski, former officers in the Kearny, New Jersey Police Department, were charged in a nine-count indictment with the use of excessive force in violation of 18 U.S.C. § 242. Three of the counts involved allegations against both Johnstone and Poplaski; six involved allegations against only Johnstone. Prior to and during trial, two counts against Johnstone and two counts against Poplaski were dismissed, leaving for the jury seven counts against Johnstone and one count against Poplaski. The jury convicted Johnstone of six of the remaining seven counts against him and acquitted Poplaski of the only remaining count against him. The district court sentenced Johnstone to 87 months in prison and imposed a fine.
Central to a number of Johnstone's arguments are the facts underlying the conviction. Of particular importance are the timing of the force and the type of force used. Therefore, we will briefly describe each of the instances for which Johnstone was convicted, viewing the evidence presented at trial in the light most favorable to the government. 2
On February 14, 1990, Johnstone and a fellow officer stopped two men on the street whom they suspected of car theft. Johnstone seized one of the men, Austin Burke, handcuffed him, and threw him against the hood of the patrol car. Johnstone, who is six-foot three inches and three hundred pounds, then pushed him against the car several more times, and punched him on the body. While putting Burke in the patrol car, Johnstone thrust his head against its roof.
The jury convicted Johnstone for his role in the arrest of John Blevins. On May 14, 1990, Blevins was waiting on a street corner after attending a house party. Johnstone and several other Kearny police officers, responding to a complaint about noise, arrived at the scene. Blevins became disorderly, and one of the other officers started to struggle with him while attempting to place him under arrest. Johnstone observed the struggle and moved in to assist the other officer. After other officers had handcuffed Blevins and forced him to lie on the ground, Johnstone kicked him in the mouth and chest.
The jury also convicted Johnstone of employing excessive force against Peter Sudziarski. On September 19, 1990, Johnstone and Poplaski stopped Sudziarski and a friend, who were driving in a stolen car. Sudziarski fled on foot, but was promptly apprehended and handcuffed. His friend evaded apprehension. Immediately after handcuffing Sudziarski, one of the officers (it was not clear whether it was Johnstone or Poplaski) kicked him in the back of the head. Later, upon walking Sudziarski to the patrol car, Johnstone struck him in the head and chest with his flashlight when Sudziarski refused to reveal his accomplice's name. Johnstone placed Sudziarski in the patrol car and again asked for his accomplice's name. When Sudziarski refused to answer, Johnstone hit him across the face with his flashlight.
Johnstone was convicted of twice using excessive force against Michael Perez on July 5, 1991. Perez and five friends were returning to Kearny from a Fourth of July celebration in Jersey City when two of his friends got into a fight. When the police arrived at the scene, Johnstone told Perez that he was under arrest, and he and several officers walked Perez to his squad car. Then, while attempting to handcuff Perez, Johnstone struck him on the back of his head with a flashlight.
Perez and Johnstone exchanged words in the patrol car during the trip to the Kearny police station. Upon arriving at the station house garage, Johnstone pulled Perez out of the car, and beat him, punching and kicking him in the head and on the body. It was disputed at trial whether Perez remained handcuffed at that time.
The last incident occurred on September 1, 1991. Robert Burden came out of a bar and discovered that the police had arrested his son. He tried to glean some information about the arrest from police officers at the scene, but was told by Johnstone to leave. He returned to the bar. Shortly thereafter, Johnstone followed him into the bar. Upon finding him, Johnstone pulled Burden off his bar stool, threw him against a video machine and against the wall, pushed him to the floor, and kicked him. Johnstone then handcuffed Burden and took him away.
The district court exercised jurisdiction over the criminal case pursuant to 18 U.S.C. § 3231; we exercise appellate jurisdiction over the judgment of conviction and sentence pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291.
We address first Johnstone's challenge to the jury instructions regarding excessive force. In reviewing whether a district court in its charge to the jury correctly stated the appropriate legal standard, our review is plenary. See, e.g., United States v. Coyle, 63 F.3d 1239, 1245 (3d Cir.1995). 3 A jury charge must clearly articulate the relevant legal standards. See, e.g., United States v. Schneider, 14 F.3d 876, 881 (3d Cir.1994). It must, therefore, be structured in such a way as to avoid confusing or misleading the jury. See, e.g., United States v. Messerlian, 832 F.2d 778, 789 (3d Cir.1987). To ensure that the district court met this requirement, we must examine the charge in its entirety and not limit ourselves to particular sentences or paragraphs in isolation. See, e.g., Coyle, 63 F.3d at 1245. 4
The district court charged the jury as follows: "If you find, as to the particular count under consideration that a defendant used force, you should consider whether the force used by him was reasonable or whether it was greater than the force which would have been reasonably necessary under the circumstances to an ordinary and reasonable officer on the scene." Johnstone contends that the district court erred in charging the jury under a Fourth Amendment "objective reasonableness" standard rather than a due process standard because the force that he used against Sudziarski, Perez, and Blevins--the conduct underlying four counts of his conviction--occurred after their "lawful restraint and arrest."
In Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), the Supreme Court established the constitutional standard that governs claims that excessive force was employed during the course of an arrest. According to the Court, "all claims that law enforcement officers have used excessive force--deadly or not--in the course of an arrest, investigatory stop, or other 'seizure' of a free citizen should be analyzed under the Fourth Amendment and its 'reasonableness' standard, rather than under a 'substantive due process' approach." Id. at 395, 109 S.Ct. at 1871. The Court held that this Fourth Amendment " 'reasonableness' inquiry in an excessive force case is an objective one: the question is whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Id. at 397, 109 S.Ct. at 1872.
While the Graham Court explained that the Fourth Amendment reasonableness standard governs claims of excessive force during arrest, the Court acknowledged: "Our cases have not resolved the question whether the Fourth Amendment continues to provide individuals with protection against the deliberate use of excessive physical force beyond the point at which arrest ends and pretrial detention begins, and we do not attempt to answer that question today." Id. at 395 n. 10, 109 S.Ct. at 1871 n. 10. Nor did the Court in Graham precisely determine the particular point at which the "seizure" ends and the pre-trial detention begins, identifying neither a point in time, nor a place, e.g., the station house, that might suffice. The Court instead relied on its prior cases in which it had defined a "seizure" to occur when law enforcement officials have "by means of physical force or show of authority ... in some way restrained the liberty of a citizen." Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968); see also Brower v. County of Inyo, 489 U.S. 593, 597, 109 S.Ct. 1378, 1381, 103 L.Ed.2d 628 (1989) ().
Johnstone contends that the district court erred in instructing the jury to consider the excessive force claims under the Graham objective reasonableness standard. According to Johnstone, Graham only governs claims that excessive force was carried out during the course of an arrest. Because Sudziarski, Perez, and Blevins were already handcuffed when they...
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