41 F.3d 9 (1st Cir. 1994), 94-1046, Tatro v. Kervin

Docket Nº:94-1046.
Citation:41 F.3d 9
Party Name:David TATRO, Plaintiff-Appellant, v. Timothy KERVIN, et al., Defendants-Appellees.
Case Date:December 01, 1994
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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41 F.3d 9 (1st Cir. 1994)

David TATRO, Plaintiff-Appellant,

v.

Timothy KERVIN, et al., Defendants-Appellees.

No. 94-1046.

United States Court of Appeals, First Circuit

December 1, 1994

Heard June 7, 1994.

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[Copyrighted Material Omitted]

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Sarah R. Wunsch, with whom Massachusetts Civ. Liberties Union Foundation and Chrystal Murray, Boston, MA, were on brief, for appellant.

Kevin S. McDermott, Asst. Corp. Counsel, with whom Albert W. Wallis, Corp. Counsel, City of Boston Law Department, Boston, MA, was on brief, for appellees.

Before TORRUELLA, Circuit Judge, CAMPBELL, Senior Circuit Judge, and CARTER, [*] District Judge.

TORRUELLA, Chief Judge.

In this appeal, plaintiff-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

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the verdict, and harmless as to the rest. We therefore affirm in part and reverse in part.

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. Sec. 1983, and Mass.Gen.L. ch. 12, Secs. 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 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

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 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, 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

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on Officer Chin outside the police station. All charges were ultimately dismissed.

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 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

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 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

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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).

II. ANALYSIS

A. Probable Cause and Excessive Force Instructions

We review allegedly erroneous jury instructions de...

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  • 45 Mass.App.Ct. 486 (1998), 97-P-1477, Commonwealth v. Barnette
    • United States
    • Massachusetts Appeals Court of Massachusetts
    • September 22, 1998
    ...conduct." Planned Parenthood League of Mass., Inc. v. Blake, 417 Mass. 467, 474, 631 N.E.2d 985 (1994). See also Tatro v. Kervin, 41 F.3d 9, 19 (1st Cir.1994). 5 We decline this invitation. General Laws c. 12, § 11H, is not a criminal statute. It provides a civil cause of action agains......
  • 66 Mass.App.Ct. 576 (2006), 04-P-1211, Commonwealth v. Abramms
    • United States
    • Massachusetts Appeals Court of Massachusetts
    • June 23, 2006
    ...legal standards to be applied, including reference to relevant constitutional protections, should be provided. See, e.g., Tatro v. Kervin, 41 F.3d 9, 16-17 (1st Cir.1994). 1 Although choosing not to include a transcript on appeal because he was pressing a purely facial challenge to the stat......
  • Salah v. Gilson, 041913 NJSUP, A-3617-11T2
    • United States
    • New Jersey Superior Court of New Jersey
    • April 19, 2013
    ...plaintiff must, at a minimum, demonstrate that the defendant intended to inhibit speech protected by the First Amendment, Tatro v. Kervin, 41 F.3d 9, 18 (1st Cir. 1994), and that the defendant's conduct had a chilling effect on the protected speech that was more than merely "speculativ......
  • 181 F.R.D. 185 (D.N.H. 1998), Civ. 97-45-JD, Phinney v. Paulshock
    • United States
    • Federal Cases United States District Courts 1st Circuit District of New Hampshire
    • June 4, 1998
    ...It is proof beyond a well-founded doubt, more than a preponderance but less than is required in a criminal case. See Tatro v. Kervin, 41 F.3d 9, 15 (1st Plaintiffs have not shown that Attorney Bouchard knew or believed that the Jorgensen memorandum was fabricated or that he failed to make a......
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74 cases
  • 45 Mass.App.Ct. 486 (1998), 97-P-1477, Commonwealth v. Barnette
    • United States
    • Massachusetts Appeals Court of Massachusetts
    • September 22, 1998
    ...conduct." Planned Parenthood League of Mass., Inc. v. Blake, 417 Mass. 467, 474, 631 N.E.2d 985 (1994). See also Tatro v. Kervin, 41 F.3d 9, 19 (1st Cir.1994). 5 We decline this invitation. General Laws c. 12, § 11H, is not a criminal statute. It provides a civil cause of action agains......
  • 66 Mass.App.Ct. 576 (2006), 04-P-1211, Commonwealth v. Abramms
    • United States
    • Massachusetts Appeals Court of Massachusetts
    • June 23, 2006
    ...legal standards to be applied, including reference to relevant constitutional protections, should be provided. See, e.g., Tatro v. Kervin, 41 F.3d 9, 16-17 (1st Cir.1994). 1 Although choosing not to include a transcript on appeal because he was pressing a purely facial challenge to the stat......
  • Salah v. Gilson, 041913 NJSUP, A-3617-11T2
    • United States
    • New Jersey Superior Court of New Jersey
    • April 19, 2013
    ...plaintiff must, at a minimum, demonstrate that the defendant intended to inhibit speech protected by the First Amendment, Tatro v. Kervin, 41 F.3d 9, 18 (1st Cir. 1994), and that the defendant's conduct had a chilling effect on the protected speech that was more than merely "speculativ......
  • 181 F.R.D. 185 (D.N.H. 1998), Civ. 97-45-JD, Phinney v. Paulshock
    • United States
    • Federal Cases United States District Courts 1st Circuit District of New Hampshire
    • June 4, 1998
    ...It is proof beyond a well-founded doubt, more than a preponderance but less than is required in a criminal case. See Tatro v. Kervin, 41 F.3d 9, 15 (1st Plaintiffs have not shown that Attorney Bouchard knew or believed that the Jorgensen memorandum was fabricated or that he failed to make a......
  • Free signup to view additional results
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