793 F.2d 573 (4th Cir. 1986), 85-1431, Justice v. Dennis

Docket Nº:85-1431.
Citation:793 F.2d 573
Party Name:Gary W. JUSTICE, Appellant, v. John W. DENNIS, individually and in his official capacity as North Carolina State Highway Patrolman, Appellee.
Case Date:June 16, 1986
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 573

793 F.2d 573 (4th Cir. 1986)

Gary W. JUSTICE, Appellant,


John W. DENNIS, individually and in his official capacity as

North Carolina State Highway Patrolman, Appellee.

No. 85-1431.

United States Court of Appeals, Fourth Circuit

June 16, 1986

Argued Dec. 4, 1985.

K.K. Hall, Circuit Judge, dissented and filed opinion.

Page 574

James J. Wall (Barbara von Euler, Legal Services of Lower Cape Fear, Wilmington, N.C., on brief), for appellant.

Isaac T. Avery, III, Sp. Deputy Atty. Gen., N.C. Dept. of Justice (Lacy H. Thornburg, Atty. Gen., W. Dale Talbert, Asst. Atty. Gen., Raleigh, N.C., on brief), for appellee.

Page 575

Before HALL and ERVIN, Circuit Judges, and SWYGERT, Senior Circuit Judge of the Seventh Circuit, sitting by designation.

ERVIN, Circuit Judge:

Gary Wayne Justice seeks a new jury trial on his claim that North Carolina State Highway Patrol Trooper John W. Dennis used unconstitutionally excessive force while Justice was detained in the Onslow County Courthouse jail. Although we are not certain that the force exceeded constitutional limits, we believe that the jury was instructed to test Dennis' conduct against a standard overly favorable to the trooper. We therefore reverse and remand for a new trial.


In the early morning hours of December 19, 1982, Trooper W.B. Rose arrested Justice for driving while impaired. See N.C.Gen.Stat. Sec. 20-138.1 (1983). After a breathalyzer test indicated that Justice was legally intoxicated, Rose prepared to take Justice to a magistrate's office in the Onslow County Courthouse. Because Justice was verbally abusive and physically obstreperous, Rose asked the appellee, Dennis, to follow him to the magistrate's office. Dennis complied.

The magistrate found probable cause for Justice's arrest and set bond at $150.00. The troopers then escorted Justice, who planted his feet to resist the move, to the courthouse booking area. As he entered the booking area, which contained several other people, Justice kicked a chair across the room. Dennis and Rose then moved Justice into a small visitors' room off the booking area. The door to that room was not locked.

When Justice attempted to wander out of the visitors' room, the incidents forming the basis for this lawsuit occurred. Justice unsuccessfully kicked at Dennis and Rose and spat on Dennis. In response to the spitting, Dennis pushed Justice toward the corner of the visitors' room, which had cement walls. 1 Justice hit his head on the cement, either through the force of Dennis' push or in an attempt to maneuver away from the wall. Justice then smiled and told Dennis that his teeth had been cracked in the scuffle. 2

Justice continued to struggle when Dennis and Rose moved him back into the booking area. A city police officer present in the booking area volunteered mace, which Dennis sprayed in Justice's face. At trial, Dennis admitted that he used the mace "on instinct pretty much. Because it was handed to me. If it had not been handed to me, I could have, of course, still probably subdued ... controlled Gary Wayne without it." After the macing, Justice's wait for bail to be posted passed without incident.

Justice sued Dennis under the Civil Rights Act, 42 U.S.C. Sec. 1983 (1982), alleging that the pushing, teeth cracking, and macing violated his due process rights under the fourteenth amendment. After three days of testimony, the court gave the jury the following instruction, among others.

Members of the jury, you are instructed to use the following standard for determining the amount of force necessary to make the defendant liable.

The force used by the officer is unconstitutionally excessive if the officer used a means so brutal, demeaning and harmful as literally to shock the conscience of a court.

You must determine whether the force applied caused injury so severe, was so disproportionate to the need presented

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and was so inspired by malice or sadism rather than a merely careless or unwise excess of zeal that it amounted to a brutal or inhumane abuse of official power literally shocking to the conscience.

The jury returned a verdict for Dennis, which the court refused to overturn on Justice's motion for a judgment notwithstanding the verdict. Justice now appeals, arguing that the instruction set an unconstitutionally high threshold for imposing liability on Dennis.


The instruction was patterned very closely after this court's language in Hall v. Tawney, 621 F.2d 607, 613 (4th Cir.1980), a section 1983 case involving excessive discipline in a grade school. Verbatim repetition of the language of a previous decision, however, does not guarantee that a jury instruction properly states the standard governing the case at bar. See Kent v. Smith, 404 F.2d 241, 244 (2d Cir.1968); 9 C. Wright & A. Miller, Federal Practice and Procedure Sec. 2556, at 658 (1971). This court noted in Kidd v. O'Neil, 774 F.2d 1252 (4th Cir.1985), that the terms used in Hall and in other, similar cases are merely "descriptives of state agent conduct and are therefore not the substantive tests of deprivation of constitutional right in the different factual contexts to which they refer; they simply describe conduct that would necessarily exceed any privileged use of force in those different contexts." Id. at 1261 n. 15. See also Ladnier v. Murray, 769 F.2d 195, 199 n. 4 (4th Cir.1985).

After Kidd, it is clear that Hall does not set out a constitutional standard applicable to all situations. 3 We must, therefore, evaluate the instruction given in light of the specific circumstances of this case and the most recent decisions of the Supreme Court, this circuit, and other circuits.


When the altercation occurred, Justice had already been arrested and bail had been set. He was, therefore, a pretrial detainee. See Bell v. Wolfish, 441 U.S. 520, 523, 99 S.Ct. 1861, 1865-66, 60 L.Ed.2d 447 (1979) (pretrial detainees are persons charged with a crime but not yet convicted of that crime). The source of constitutional protection against the use of excessive force on a pretrial detainee is the detainee's liberty interest in bodily security, grounded in the fifth and fourteenth amendments. 4 Kidd, 774 F.2d at 1258-60; see also Fiacco v. City of Rensselaer, 783 F.2d 319, 321-22 (2d Cir.1986) (excessive force after arrest but before reaching police station covered by fifth and fourteenth amendments).

Decisions dealing with the fourth amendment right of arrestees and the eighth amendment right of convicted persons to be free from...

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