742 F.2d 1237 (10th Cir. 1984), 81-1778, Bledsoe v. Garcia

Docket Nº:81-1778, 81-2336.
Citation:742 F.2d 1237
Party Name:Betty BLEDSOE and Gail Wesson, Plaintiffs-Appellants, v. Daniel V. GARCIA, Bill Sieferd, and Bill Peppler, Defendants-Appellees.
Case Date:September 04, 1984
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1237

742 F.2d 1237 (10th Cir. 1984)

Betty BLEDSOE and Gail Wesson, Plaintiffs-Appellants,

v.

Daniel V. GARCIA, Bill Sieferd, and Bill Peppler,

Defendants-Appellees.

Nos. 81-1778, 81-2336.

United States Court of Appeals, Tenth Circuit

September 4, 1984

Page 1238

David H. Pearlman of Pearlman & Diamond, P.A., Albuquerque, N.M., for plaintiffs-appellants.

Charles A. Pharris, Kim E. Kaufman, and Spencer Reid of Keleher & McLeod, P.A. Albuquerque, N.M., for defendants-appellees.

Before HOLLOWAY, McWILLIAMS and BARRETT, Circuit Judges.

HOLLOWAY, Circuit Judge.

This three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of these appeals. See Fed.R.App.P. 34(a); Tenth Circuit R. 10(e). The causes are therefore ordered submitted without oral argument.

In No. 81-1778 plaintiffs Betty Bledsoe and Gail Wesson appeal from an adverse judgment in their civil rights action brought pursuant to 42 U.S.C. Sec. 1983. Their main contentions are that the trial court committed reversible error in giving the jury instructions and in refusing plaintiffs' tendered instructions. In No. 81-2336 plaintiffs also challenge the district court's order requiring them to obtain additional parts of the trial transcript for the appeal. We affirm in both cases.

I

The facts, when viewed favorably to the defendants, are briefly as follows:

Defendant Daniel Garcia went to the Bledsoe residence on April 4, 1978, to arrest Larry Bledsoe pursuant to a bench warrant for failure to appear, and to check on his A.W.O.L. status. When defendant Garcia went to the door he requested to speak with Larry Bledsoe. Larry came to the door and he and Garcia spoke outside. Garcia identified himself to Larry as a police officer, and told him he had a bench warrant for his arrest. He also asked Larry if he was A.W.O.L., and Larry answered that he was. Supp. I R. 23, 40-41, 195; Supp. II R. 414, 426-27.

As a result, defendant Garcia informed Larry that he would have to go with Garcia to the Sheriff's Department. Larry asked Garcia if he could reenter the Bledsoe residence to inform his mother that he would be going to jail. Larry entered the residence and said that Garcia was a police officer, that he was going to take Larry to jail, and that Larry had to go with him. Supp. I R. 42; Supp. II R. 448.

While there was a dispute as to which person made the statement, it was established that someone in the house told Larry that he was "not going anywhere with that son-of-a-bitch," and other persons in the room started yelling and telling Larry that he was not going to go anywhere. Garcia left the residence and briefed two other officers, defendants Bill Sieferd and Bill Peppler, about the situation. When the officers walked toward the house, plaintiff Bledsoe appeared at the door and told them that they were not coming in. Garcia then arrested her for interfering with a police officer. Supp. II R. 339, 453, 455-56, 569-70.

Upon entering the house the officers were confronted with much loud talk and profanity. Defendants Garcia and Peppler undertook to search the house, but plaintiff Gail Wesson stood in the hallway and tried to block their way into the kitchen and the bedrooms. At that point Garcia placed her under arrest for interfering with the duties of a police officer. Larry Bledsoe by this time had escaped. Supp. I R. 25-26; Supp. II R. 457, 504-05.

Plaintiffs Bledsoe and Wesson brought suit pursuant to Sec. 1983, claiming that their civil rights had been violated. Specifically,

Page 1239

plaintiff Bledsoe claimed that defendant Garcia had used excessive force while arresting her, and plaintiff Wesson claimed that defendants Garcia and Sieferd had falsely arrested and imprisoned her. I R. 1-5, 119. The jury returned a verdict in favor of the defendants. Id. at 158-59.

On appeal, plaintiffs contend in No. 81-1778 that the trial court erred (1) in instructing the jury that good faith is a defense to a Sec. 1983 claim of the use of excessive force; (2) in instructing the jury that a police officer may enter a residence to search for an occupant who has informed the officer that he is A.W.O.L. and who subsequently has reentered the residence; (3) in instructing the jury that an officer need not state the grounds for the arrest or read the charges to the person arrested; (4) in refusing to instruct the jury that an unlawful arrest does not provide probable cause for the arrest; and (5) in instructing the jury that a unanimous verdict was required. In No. 81-2336 plaintiffs challenge the district court's order requiring them to obtain additional portions of the trial transcript for the appeal.

II

Plaintiff Bledsoe argues that the trial court erred in refusing requested Instruction No. 35 that good faith and probable cause are not a defense to a claim of excessive force under Sec. 1983 and instead instructing the jury to the contrary. She argues that good faith is a defense in Sec. 1983 actions only to the extent that it would be a defense under the prevailing view of tort law in the United States, citing Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), and that such a defense cannot be recognized here because it has never been a defense to a claim of excessive force in the common law of torts.

In Landrum v. Moats, 576 F.2d 1320, 1327 (8th Cir.), cert. denied, 439 U.S. 912, 99 S.Ct. 282, 58 L.Ed.2d 258 (1978), the Eighth Circuit rejected a similar argument that the defense of good faith is inapplicable to a Sec. 1983 action based on excessive force and assault and battery, stating that:

"[w]hen a court evaluates police conduct relating to an arrest its guideline is 'good faith and probable cause.' " Scheuer v. Rhodes, supra, 416 U.S. at 245, 94 S.Ct. [1683] at 1691 [40 L.Ed.2d 90 (1974) ], quoting Pierson v. Ray, 386 U.S. 547, 557, 87 S.Ct. 1213 [1219], 18 L.Ed.2d 288 (1967). A similar guideline must be applied in assessing the propriety of force used by the police to effectuate an arrest. If police officers (1) believe that a certain amount of force is necessary to make an arrest, (2) believe that use of that amount of force is lawful under the circumstances, and (3) have reasonable grounds for each of the foregoing beliefs, then they are entitled to the defense of good faith even if the use of force turns out, ex post, to have been illegal or excessive.

The Eighth Circuit reaffirmed this position in Bauer v. Norris, 713 F.2d 408, 411 & n. 6 (8th Cir.1983). See also Peraza v. Delameter, 722 F.2d 1455, 1457 (9th Cir.1984) (in Sec. 1983 action involving claim of excessive force by police officer, good faith defense instruction approved as being adequate to apprise jury of applicable law); Wellington v. Daniels, 717 F.2d 932, 937 n. 7 (4th Cir.1983) (jury properly instructed on what constituted unreasonable force for purposes of pendent state claim and good faith defense under Sec. 1983).

In determining the availability of an immunity to a Sec. 1983 damages action, we are required to make a "considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it..., considered together with the...

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