Blaska v. Fuentes

• Decision Date: 06 January 1988
• Docket Number: No. 86-1676,86-1676
• Citation: 836 F.2d 1347
• Parties: Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Sharon BLASKA, Plaintiff-Appellant, v. Ismael FUENTES, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1347

836 F.2d 1347

Unpublished Disposition

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

Sharon BLASKA, Plaintiff-Appellant, v. Ismael FUENTES, et al., Defendants-Appellees.

No. 86-1676.

United States Court of Appeals, Sixth Circuit.

Jan. 6, 1988.

Before BOYCE F. MARTIN and DAVID A. NELSON, Circuit Judges, CONTIE, Senior Circuit Judge.

DAVID A. NELSON, Circuit Judge.

This is an appeal from a judgment entered on a jury verdict in favor of two state police officers who, with their superiors, were sued in federal court under 42 U.S.C. Sec. 1983 for using excessive force in placing the plaintiff under arrest. The most significant of the several issues raised on appeal is whether the trial court committed reversible error in basing its instructions to the jury on a "substantive due process" theory rather than on the Fourth Amendment. Judicial perceptions of the legal principles applicable to this sort of case have been in a state of flux, and, perhaps not surprisingly, the jury charge in question is not a model of analytical excellence. We shall affirm the judgment, however, because the instructions as a whole were eminently fair, and because we are satisfied that the verdict of the jury would have been no different had the instructions contained the slight changes in wording necessary to bring them into conformity with the law as we currently understand it.

I

The plaintiff, Sharon Blaska, is a 31-year-old Tecumseh, Michigan factory worker who lives with a man named Eugene Wegner. On March 12, 1982--a Friday--Ms. Blaska and Mr. Wegner finished work at about 3:30 p.m. Soon thereafter they and another couple repaired to a place of refreshment called the Wagon Wheel, where they spent most of the evening drinking, talking, and playing pool. It was Mr. Wegner's subsequent recollection that he had "approximately ten to twelve" beers, while Ms. Blaska testified that she consumed less than three bottles of beer.

Mr. Wegner and Ms. Blaska had driven to the Wagon Wheel in different cars, and when the party broke up, shortly after 10:00 p.m., each left in his own vehicle. Two Michigan State Troopers, defendants Ismael Fuentes and Steven Swabash, saw Mr. Wegner driving erratically as he made his way homeward. Activating the red flashers on their cruiser, they pulled Mr. Wegner's car over to the side of the road. When Plaintiff Blaska came upon the stopped vehicles, she parked her car behind the cruiser and got out to join the others. There is a sharp conflict in the evidence as to what happened next.

The troopers' version is that as they were talking to Mr. Wegner, Ms. Blaska walked up, asked "What the hell's going on here," and started advising Mr. Wegner that he had done nothing wrong and ought not to cooperate with the police in any way. Mr. Wegner allegedly told her to "stay out of it."

When the troopers undertook to test Mr. Wegner for sobriety, they said, Ms. Blaska told Mr. Wegner "You've done nothing wrong. You're not drunk, you know. Lets leave." Mr. Wegner asked her to get back in her car, whereupon she allegedly started yelling "They have no right to do this to you!"

The troopers did not see it that way; Mr. Wegner having failed the sobriety tests, Trooper Swabash told him he was under arrest. In accordance with standard procedure, Trooper Fuentes was asked to pat Mr. Wegner down and handcuff him. As Trooper Fuentes was in the process of doing so, Ms. Blaska allegedly started yelling obscenities and charged toward him and Mr. Wegner. Trooper Swabish, who was holding a flashlight in one hand, grabbed her from behind and pulled her back. At that point, according to his testimony,

"She went totally hysterical, she started hitting me, kicking me. It was all I could do to hang on to her. And she continued to kick me in the legs. And here my partner's having trouble arresting the subject Mr. Wegner, getting the cuffs on and she's going hysterical on me."

A village patrolman, Officer Dellecese, had arrived on the scene by this time, and he helped Trooper Fuentes get Mr. Wagner handcuffed. Trooper Swabash continued the story as follows:

"A. When I seen the Officer Dellecese assist my partner, I was losing control of her, I couldn't keep her in the one hand. So I used Eugene's Wegner's car for support and I placed her up against that. And she continued to kick me and stuff. And I elevated her up on the car a little bit, just to get her off balance, off her feet, and I held her there, and that was it.

Q. Did you, to get her up on the car, you must have shoved her up on the car?

A. Yes, sir, I did.

Q. And I take it you weren't gentle with her, or were you?

A. No, I wasn't.

Q. Were you rough with her?

A. I think I used the force necessary that I had control of her. I didn't strike her or anything. I pushed her up on the car to keep her away from me.

Q. At that time, you informed her that she was under arrest?

A. At the time she grabbed Trooper Fuentes and I grabbed her, I told her she was under arret [sic]."

So much for the defendants' version of the incident. According to plaintiff Blaska's version (in which, among other things, the roles of the two troopers are reversed), her primary reason for becoming a participant in the drama herself was not to interfere with a drunken driving arrest, but to get Mr. Wegner's wallet so she could bail him out of jail:

"Well, we had been at the bar ... and I figured they would probably do a breathalyzer and maybe that he would go to jail. And he carries a lot of money in his wallet.

Q. He being Mr. Wegner?

A. Mr. Wegner carries, on Friday nights, a good sum of money. Okay? And I wanted to make sure that, if he did get arrested, that I could have his wallet before they took him, so I could bond him out of jail if he went."

After Mr. Wegner got out of his car for the sobriety tests, Ms. Blaska said, she simply stood on the curb while the tests were being administered. As she was waiting Trooper Fuentes suggested to her, in highly indelicate language, that she quit the scene:

"Well, he said get the [expletive deleted] outta here.

Q. And what did you say to him?

A. I told him that I had stopped to get Eugene's wallet, in case he was taken to jail, and that's all I wanted.

Q. When Mr., or when Trooper Fuentes made his comment to you, can you describe his tone?

A. Angry, very angry."

When the sobriety tests were finished, Ms. Blaska said, she started forward to get Mr. Wegner's wallet. After she had taken about five steps, according to her testimony,

"someone grabbed me by the back of my coat and shoved. And I started falling. And I can't remember exactly if I went down on my hands and knees, but in that direction. I came back up, got grabbed again by the back of my coat by Officer Fuentes, ran me down the back of Eugene's Mustang and threw me face down on the drunk of the car.

* * *

* * *

Q. What happened next?

A. Then I was grabbed by my coat from behind, and he turned me around and threw me back down over the trunk lid.

Q. So you were face up at this point?

A. Yes.

Q. And what happened next?

A. Well, he was climbing up on me. He put his knee like between my knees and got on top of me, like you know. And--

Q. No, I don't know. Tell me.

A. He stuck his knee between my knees to where it ended up like between my thighs and then got on top of me, just on top of me.

Q. All right. And what happened next?

A. Then he took his hand and he put it around my neck like this and was holding my neck very firmly.

Q. All right. And what happened next?

A. He was, he pulled my neck up and he slammed my face down, the back of my head into the trunk lid. And he was shouting profanities. Every time he'd slam my head on the trunk lid, he'd say it again."

During this entire period, Ms. Blaska testified, she never kicked anyone, never hit anyone, never swore at anyone, and never raised her voice.

Ms. Blaska was taken to the police station, booked, and in due course tried on charges of obstructing an arrest, resisting arrest, and assault and battery on a police officer. She was acquitted, and this federal case against the troopers followed. The jury in the federal action returned a verdict for the defendant troopers.

II

The trial court's instructions to the jury said, among other things, that

"[i]f you find there was no probable cause to arrest the plaintiff and that her arrest was therefore [un]lawful, then you must find that any use of physical force against her was excessive and unreasonable. (Emphasis supplied.)

"If you find that a defendant arrested the plaintiff without probable cause and that he used force against her, then you must find the defendant violated Plaintiff's Constitutional Rights."

The Court then went on to give the instruction that is under challenge here:

"a police officer may use force to carry out his duties, but may not use more force than necessary in the performance of his duties. Every excessive use of force, however, does not raise itself to the level of a substantive due process violation. A Constitutional violation occurs if the use of force is so excessive or inappropriate as to shock the public conscience or offend the community sense of fair play and decency."

Ms. Blaska's lawyer made a timely objection to the latter instruction, stating

"I do not believe that to be the burden at all that we have to shock the conscience or shock the public conscience or offend the community's sense of fair play and decency. I don't believe that to be the law at all, Your Honor, regarding violations of the Fourth Amendment, which is what we are claiming in this trial."

In place of the instruction given by the court, Ms. Blaska's lawyer requested one with this language:

"An officer is entitled to use force as a reasonable person...