Bauer v. Norris

• Decision Date: 08 August 1983
• Docket Number: No. 82-2015,82-2015
• Citation: 713 F.2d 408
• Parties: James Keith BAUER and Mary Ellen Bauer, Appellees, v. Mark NORRIS, individually and as deputy of the McCook County Sheriff's Office, South Dakota, Appellant. Mark England.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 408

713 F.2d 408

James Keith BAUER and Mary Ellen Bauer, Appellees, v. Mark NORRIS, individually and as deputy of the McCook County

Sheriff's Office, South Dakota, Appellant.

Mark England.

No. 82-2015.

United States Court of Appeals,

Eighth Circuit.

Submitted May 18, 1983.

Decided Aug. 8, 1983.

Edwin E. Evans, Michael J. Schaffer, Davenport, Evans, Hurwitz & Smith, Sioux Falls, S.D., for appellant.

John N. Gridley, III, Sioux Falls, S.D., for appellees.

Before ROSS, ARNOLD and JOHN R. GIBSON, Circuit Judges.

ROSS, Circuit Judge.

Plaintiffs-appellees James and Mary Bauer filed an action in federal district court against defendants Mark Norris and Mark England, deputy sheriffs for McCook County, South Dakota, alleging false arrest, false imprisonment, malicious prosecution, and violations of plaintiffs' civil rights under 42 U.S.C. § 1983 (1976). District court jurisdiction was based on 28 U.S.C. §§ 1331 and 1343 (1976). The suit arose out of appellees' arrest, detention, and prosecution for disorderly conduct by Deputies Norris and England in 1979. A jury returned a verdict in favor of Deputy England on all claims and in favor of Deputy Norris on the state law claims of false arrest, false imprisonment and malicious prosecution. However, the jury found appellant Norris liable for a violation of appellees' civil rights, and awarded each appellee $7500 in damages. The district court ¹ entered a judgment in accordance with the verdict on May 19, 1982, and denied appellant Norris' motions for a judgment notwithstanding the verdict or a new trial on July 30, 1982. Norris appeals on the grounds that the evidence was insufficient to support the verdict, the verdicts were inconsistent, he was entitled to the defense of good faith as a matter of law, the damages awarded were excessive and the trial court's instructions on the use of excessive force were erroneous. We affirm the judgment of the district court.

Sufficiency of the Evidence

Appellant maintains that the trial court erred in failing to grant his motion for a judgment notwithstanding the verdict on the grounds that there was insufficient evidence to show that appellant violated appellees' civil rights by using excessive force in the course of an arrest. Appellate review of such a challenge is governed by the familiar principle that the evidence must be viewed in the light most favorable to sustaining the jury's verdict, giving the prevailing party the benefit of all inferences which reasonably may be drawn from the evidence. See, e.g., Harris v. Pirch, 677 F.2d 681, 683 (8th Cir.1982); Linn v. Garcia, 531 F.2d 855, 858 (8th Cir.1976). The jury's verdict should not be overturned unless the evidence, when so viewed, was such that reasonable persons could not differ as to the conclusion that the plaintiffs failed to meet their burden of proof on their cause of action. See Harris v. Pirch, supra, 677 F.2d at 683.

In the instant case the evidence viewed under these principles indicates that the Bauers spent the evening of July 14, 1979, with friends at a restaurant and lounge located approximately one-half mile from their home in Spencer, South Dakota. At about 11:00 p.m. they decided to walk home along the road running past the restaurant and their house. When they were about a block from their house they were stopped by defendant, Deputy Sheriff Norris, who was patrolling the area in his car. According to plaintiffs, Norris asked them "where the hell" they were going. After Mrs. Bauer responded that they were walking home, Deputy Norris demanded that they produce some identification. Mrs. Bauer told the defendant that they were the Bauers and pointed to their house. The Bauers continued walking toward their house. Deputy Norris turned his car around and when the Bauers were in front of their house, Norris blocked their path with his car. Norris got out of the car and told the Bauers they were not going anywhere until they showed him some identification. When the Bauers continued walking toward their house, Deputy Norris again stopped them. Mrs. Bauer testified that at this point they were standing in their yard and that she showed Deputy Norris the keys to their house.

A verbal confrontation between Deputy Norris and plaintiff Jim Bauer occurred during which they exchanged epithets and obscenities. Mrs. Bauer apparently attempted to convince her husband to show Deputy Norris identification, but Mr. Bauer refused to do so, apparently because of indignation at having been accosted by Deputy Norris without being given a reason. When the Bauers attempted to enter their house, Deputy Norris physically restrained Mr. Bauer and, according to Mrs. Bauer, threateningly raised a flashlight above Mr. Bauer's head, telling Bauer that he was going with him now.

Thereafter, Deputy Norris called for assistance. Defendant Deputy England arrived and was advised by Deputy Norris of what had transpired up to that point. Defendants subsequently arrested Mr. Bauer, placing him against the hood of the patrol car and tightly handcuffing his wrists behind his back. ² Apparently, Mrs. Bauer complaining about her husband's arrest, approached the deputies with raised arms. She testified that each deputy grabbed one of her arms and pulled in opposite directions. Subsequently, Mrs. Bauer was arrested without resistance, and her hands were tightly handcuffed behind her back by the deputies. The Bauers were charged with misdemeanor disorderly conduct. ³ At trial on this charge the Bauers' motion for judgment of acquittal was granted after the state had presented its case. The Bauers maintained that they suffered physical and emotional injuries as a result of their treatment by deputies Norris and England.

A law enforcement official's liability under 42 U.S.C. § 1983 for a violation of an individual's constitutional rights through the use of excessive force in completing an arrest is well established. See Herrera v. Valentine, 653 F.2d 1220, 1229 (8th Cir.1981); Putman v. Gerloff, 639 F.2d 415, 420 (8th Cir.1981). In the instant case the trial court essentially instructed the jury that in determining whether the force used by appellant Norris was unnecessary or unreasonable, it must consider whether, in light of all the surrounding circumstances, Norris used a greater degree of force in the course of the arrest than would have appeared to be necessary to a reasonable person in similar circumstances in order to accomplish the lawful purpose intended. ⁴ See Feemster v. Dehntjer, 661 F.2d 87, 89 (8th Cir.1981); Hamilton v. Chaffin, 506 F.2d 904, 912 (5th Cir.1975); Morgan v. Labiak, 368 F.2d 338, 340 (10th Cir.1966). The court also instructed the jury that the appellant's liability for use of unnecessary force could be based on a finding that the "defendants acted as they did toward the plaintiffs not to perform their lawful duties but prompted by another unlawful motive * * *." ⁵ See Putman v. Gerloff, supra, 639 F.2d at 421. Furthermore, the court generally instructed the jury on appellant's defense of qualified immunity for official actions taken in good faith. ⁶ See id. at 639; Harris v. Pirch supra, 677 F.2d at 687; Feemster v. Dehntjer, supra, 661 F.2d at 89; Landrum v. Moats, 576 F.2d 1320, 1327 (8th Cir.1978), cert. denied, 439 U.S. 912, 99 S.Ct. 282, 58 L.Ed.2d 258 (1979).

Although, in general the court's instructions correctly stated the law, the following ancillary principles guide our consideration of the appellant's use of force in the instant case:

In determining whether the constitutional line has been crossed, a court must look to such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of the injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.

Putman v. Gerloff, supra, 639 F.2d at 420 (quoting Johnson v. Glick, 481 F.2d 1028 (2d Cir.1973), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973). "[T]he use of any force by officers simply because a suspect is argumentative, contentious, or vituperative" is not to be condoned. Agee v. Hickman, 490 F.2d 210, 212 (8th Cir.1974), cert. denied, 417 U.S. 972, 94 S.Ct. 3178, 41 L.Ed.2d 1143 (1974). "Force can only be used to overcome physical resistance or threatened force * * *." Id. See also Feemster v. Dehntjer, supra, 661 F.2d at 89 (force may not be used against a suspect who quietly submits); cf. United States v. Harrison, 671 F.2d 1159 (8th Cir.), cert. denied, --- U.S. ----, 103 S.Ct. 104, 74 L.Ed.2d 94 (1982) (lack of provocation or need to use force would make any use of force excessive).

In the present case, the plaintiffs could have recovered on their civil rights claim relating to the deputy's use of force: (1) if the defendants used more force than that a reasonable person would have used in the circumstances; or (2) if the force was used for an improper purpose. See Putman v. Gerloff, supra, 639 F.2d at 421 (force used to injure, punish or discipline). It must be emphasized that the appellant's use of force in this case cannot be viewed in isolation, but must be considered in the context of all the circumstances leading up to the arrest and detention of the Bauers. The record contains scant, if any, evidence to suggest that a crime had been committed in the immediate vicinity where appellant Norris stopped the Bauers, or that appellant suspected the Bauers of committing any crime. ⁷ Moreover, there was no evidence that at the time appellant encountered the Bauers they were engaged in any wrongful conduct. It is also relatively clear that Deputy Norris did not give the Bauers a reason as to why he was stopping them, and that based on the record, the jury could have concluded that Deputy Norris was hostile toward the Bauers from the first moment he encountered them. It also is relevant...