Anderson v. Branen
| Citation | 17 F.3d 552 |
| Decision Date | 24 February 1994 |
| Docket Number | D,No. 719,719 |
| Parties | Marc J. ANDERSON & Jeffrey E. Grubb, Plaintiffs-Appellants, v. Dennis BRANEN, Ross Kindestin, Defendants, Ed Wisniefski, Defendant-Appellee. ocket 93-6179. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Joseph F. Tringali, Simpson, Thacher & Bartlett, New York, N.Y. (Nicholas Even, Simpson, Thacher & Bartlett, New York, N.Y., William B. Rubenstein, Ruth E. Harlow, American Civil Liberties Union Foundation, New York, N.Y., Arthur Eisenberg, New York Civil Liberties Union, New York, N.Y., of counsel), for plaintiffs-appellants.
B. Joseph Sher, United States Department of Justice, Torts Branch, Civil Division, Washington, D.C. (Frank W. Hunger, Assistant Attorney General, Civil Division, Washington, D.C., Mary Jo White, United States Attorney for the Southern District of New York, New York, N.Y., Barbara L. Herwig, United States Department of Justice, Civil Division, Appellate Staff, Pierre R. St. Hilaire, United States Department of Justice, Torts Branch, Civil Division, Washington, D.C., of counsel), for defendant-appellee.
Before: MESKILL, ALTIMARI, and WALKER, Circuit Judges.
Plaintiffs-appellants Marc J. Anderson and Jeffrey E. Grubb appeal from a judgment entered in the United States District Court for the Southern District of New York (Owen, J.) following a jury verdict in favor of defendant-appellee Ed Wisniefski. 799 F.Supp. 1490. On appeal, Anderson and Grubb raise several challenges to the district court's jury instructions. Specifically, they contend that: (1) the district court erred in declining to charge the jury on the duty of law enforcement officials to intercede when fellow officers are committing constitutional violations in their presence; (2) the district court erroneously charged the jury concerning reasonable force by using the subjective substantive due process standard; and (3) the district court erred in refusing to instruct the jury that it should treat reasonableness of force as a continuing inquiry.
For the reasons set forth below, we affirm in part, reverse in part, and remand for a new trial.
At approximately 6:00 p.m. on November 16, 1988, defendants Dennis Branen and Ross Kindestin, two Drug Enforcement Administration ("DEA") agents, were involved in an altercation with Anderson and Grubb outside a parking garage located on West 61st Street in Manhattan. Ed Wisniefski, a supervisory DEA agent, was also involved in the confrontation. The parties offer conflicting versions of the events that took place on the evening in question.
Grubb and Anderson presented the following version of the facts. They maintain that Grubb drove a motorcycle to a parking garage located on West 61st Street on the evening in question to pick up Anderson from work. While driving up the street, Grubb tried to maneuver the motorcycle around a parked DEA automobile near where Anderson waited, but the foot peg of the motorcycle tapped the bumper of the parked vehicle. Immediately thereafter, DEA agent Kindestin, without identifying himself as a federal officer, approached Grubb and physically assaulted him. In an attempt to prevent the motorcycle from tipping over, as well as to separate Grubb and Kindestin, Anderson reached for the back of Kindestin's jacket.
Without warning and without identifying himself as a federal officer, DEA agent Branen attacked and beat Anderson from behind, mocking him as a "faggot." Anderson offered no resistance. Supervisory DEA agent Wisniefski observed the exchange from the door of the ground floor of the parking garage, approached Anderson, and slammed Anderson's head on the hood of the vehicle.
Grubb asked the agents why they had beaten Anderson and was told, "it doesn't matter what we have done to your boyfriend, you faggot." Branen and Kindestin then approached Grubb, dragged him down the sidewalk and beat him. Grubb, like Anderson, offered no resistance. While the agents beat Grubb, Wisniefski stood at the DEA vehicle. Throughout the attacks, the agents shouted homophobic epithets at Grubb and Anderson.
The defendants presented a very different version of the events. According to them, on the evening in question, supervisory DEA agent Wisniefski attempted to retrieve an agency vehicle from a parking garage located on West 61st Street. Having discovered that the vehicle was blocked in, Wisniefski sought the assistance of his staff, DEA agents Branen and Kindestin. Kindestin drove with Branen to the front of the garage, while Wisniefski walked there. When Wisniefski arrived at the garage, he went inside to locate and retrieve the vehicle. While searching for the keys to the vehicle blocking his, Wisniefski heard a commotion outside the garage. He opened the door and observed a man on a motorcycle, Grubb, engaged in a verbal exchange with Kindestin.
Immediately thereafter, a second individual, Anderson, lunged at Kindestin from behind, at which point Branen went to Kindestin's assistance. Wisniefski left the garage and interrupted the fight between Branen and Anderson by grabbing Anderson by the waist and pushing him over the hood of the car. Wisniefski indicated that he was a federal officer, displayed his badge, and commenced a pat down search of Anderson. Anderson did not resist. Wisniefski remained at the car, with his back turned from all subsequent actions and his hand on the small of Anderson's back until he was brought a set of handcuffs. Wisniefski then handcuffed Anderson and placed him in the government vehicle. In the meantime, Branen subdued Grubb.
Grubb and Anderson were subsequently confined in a DEA vehicle and then placed under arrest for assaulting federal agents. The agents brought Grubb and Anderson to a police precinct where they were fingerprinted and charged. Grubb and Anderson were released from custody later that evening, and all charges were eventually dropped.
Grubb and Anderson commenced an action against all three DEA agents in the district court, alleging claims arising under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and the Federal Tort Claims Act, 28 U.S.C. Secs. 1436(b), 2671-80 (1988). At trial, they argued that the DEA agents had deprived them of their constitutional rights under the Fourth and Fifth Amendments. A jury trial resulted in a hung jury on the counts against Branen and Kindestin, and a verdict in favor of Wisniefski.
Anderson and Grubb now appeal, claiming that they were denied a fair trial because the district court improperly instructed the jury. Branen and Kindestin are not parties to this appeal.
On appeal, Anderson and Grubb contend that the district court committed prejudicial errors of law in its jury instructions which prevented the jury from properly considering two critical elements of their constitutional claims against Wisniefski: (1) the duty of law enforcement officials to intercede on behalf of a citizen whose constitutional rights are being violated, and (2) the objective reasonableness of the force used against them.
We review a claim of error in the district court's jury instructions de novo, and will reverse on this basis only if the plaintiffs-appellants can show that in viewing the charge given as a whole, they were prejudiced by the error. See United States v. Pujana-Mena, 949 F.2d 24, 27 (2d Cir.1991); Lowe v. Commack Union Free Sch. Dist., 886 F.2d 1364, 1378 (2d Cir.1989), cert. denied, 494 U.S. 1026, 110 S.Ct. 1470, 108 L.Ed.2d 608 (1990). A jury instruction is erroneous if it misleads the jury as to the correct legal standard or does not adequately inform the jury on the law. See Folger Adam Co. v. PMI Indus., Inc., 938 F.2d 1529, 1533-34 (2d Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 587, 116 L.Ed.2d 612 (1991); see also Norfleet v. Isthmian Lines, Inc., 355 F.2d 359, 362-63 (2d Cir.1966) (). An erroneous instruction, unless harmless, requires a new trial. See Memphis Community Sch. Dist. v. Stachura, 477 U.S. 299, 312, 106 S.Ct. 2537, 2545-46, 91 L.Ed.2d 249 (1986).
Grubb and Anderson argue that the district court erred in refusing to include in its charge to the jury their proffered instruction that a law enforcement official has a duty to intervene when fellow officers are committing constitutional violations in his presence. We agree.
As a preliminary matter, Wisniefski argues that Grubb and Anderson waived any challenge to the district court's refusal to charge the jury on the duty to intercede by failing to object on the record. A party who fails to object to a jury instruction at trial waives consideration of claims relating to that charge on appeal. See Metromedia Co. v. Fugazy, 983 F.2d 350, 363 (2d Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 2445, 124 L.Ed.2d 662 (1993). This Court, however, will disregard the failure to object where there is plain error affecting substantial rights that goes to the very essence of the case, see United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816 (1982), or where the party's position has previously been made clear to the trial court and it was apparent that further efforts to object would be unavailing, see, e.g., Ostrowski v. Atlantic Mut. Ins. Cos., 968 F.2d 171, 177 (2d Cir.1992).
In the present case, the record indicates that prior to the onset of jury deliberations, Anderson and Grubb adequately apprised the district court of their position that the jury should be instructed on the duty to intercede. Their counsel first addressed this charge in the proposed jury instructions. Thereafter, during the charge conference, the issue was...
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