Connors v. McNulty, 82-1384

• Citation: 697 F.2d 18
• Decision Date: 08 February 1983
• Docket Number: No. 82-1384,82-1384
• Parties: Pazie CONNORS, etc., Plaintiff, Appellant, v. Patrolman Joseph McNULTY, et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 18

697 F.2d 18

Pazie CONNORS, etc., Plaintiff, Appellant, v. Patrolman Joseph McNULTY, et al., Defendants, Appellees.

No. 82-1384.

United States Court of Appeals, First Circuit.

Argued Oct. 7, 1982.

Decided Jan. 7, 1983.

As Amended on Denial of Rehearing Feb. 8, 1983.

Edward L. Gerstein, Providence, R.I., with whom Gerstein & Stolle, Walter R. Stone, and Stone, Clifton & Clifton, Providence, R.I., were on brief, for plaintiff, appellant.

Joseph F. Penza, Jr., Providence, R.I., with whom Olenn & Penza, Providence, R.I., was on brief, for defendants, appellees.

Before PECK, ^* Senior Circuit Judge, CAMPBELL and BREYER, Circuit Judges.

JOHN W. PECK, Senior Circuit Judge.

On the night of February 11, 1978, Ralph G. Connors, while fleeing from the commission of a burglary, was shot to death by Providence, Rhode Island patrolmen Joseph McNulty and Robert Hart. Connors's wife, Pazie, individually, on behalf of decedent's minor children, and as administratrix of the decedent's estate, ¹ filed suit in the United States District Court for the District of Rhode Island seeking damages under the Rhode Island Wrongful Death Act, R.I.Gen.Laws Secs. 10-7-1 et seq., and under 42 U.S.C. Sec. 1983. At trial, officers McNulty and Hart raised the good faith defense with respect to the claim raised under Sec. 1983. The jury found the officers not liable to the plaintiff on either the state or the federal ground. The district court entered judgment on that verdict. Plaintiff has appealed this judgment on the ground that the district court committed reversible error in its instructions to the jury with respect to the good faith defense and in failing to instruct the jury concerning excessive force. Because we find any error not to be prejudicial, we affirm.

The facts from which this case arose may be summarized briefly. As a result of a severe snowstorm that had struck Rhode Island, officers of the Providence Police Department were assigned, as of February 6, 1978, to shifts of twenty-four hours on duty and twenty-four hours off duty. Officers McNulty and Hart reported for duty at approximately 12:01 a.m. on February 11, 1978. At 10:52 p.m. the officers responded to a dispatch that a break-in was in progress at a warehouse located near Booth Street. Due to a ten to twelve foot wall of snow across Booth Street, the officers were required to drive by a circuitous route to a donut store near the warehouse where they parked their vehicle. After the officers had approached the warehouse courtyard on foot and observed a table lying outside the building, Officer Hart saw the legs of a person in the warehouse through a door, the bottom panel of which was missing. The person inside disappeared when the officers shouted "police." The officers entered the warehouse in pursuit. After going down a corridor, the officers heard a person behind them. Officer Hart aimed his flashlight at the person who was running toward the door and shouted, "Police, halt." Officer McNulty almost simultaneously ordered the person to halt; a second later, he fired one shot. The officers pursued the fleeing person. Upon leaving the warehouse, officer Hart again ordered the person to halt and identified himself as a police officer. When the person continued to flee, officer Hart fired a shot at him. After further pursuit on foot, both officers stopped and fired. The person stumbled, fell, got up and ran onto Booth Street in the direction of the wall of snow. When officer Hart reached Booth Street, he again fired and the person stumbled, fell, and upon getting up, ran in a stumbling fashion before collapsing in the snow. The man, who was Connors, was unarmed. A rescue squad took Connors to a hospital where he died of gunshot wounds.

Plaintiff filed suit against the officers for compensatory damages under Sec. 1983 and the Rhode Island Wrongful Death Act, and for punitive damages under Sec. 1983. At trial, plaintiff contended that the officers, by shooting Connors, deprived him of his Fourteenth Amendment rights to life and liberty without due process, and were liable under Sec. 1983. Plaintiff contended that the officers were liable under the Wrongful Death Act on the ground that the shooting was unlawful.

The officers defended against both the Sec. 1983 and the Wrongful Death Act claim by arguing that their action was lawful in light of R.I.Gen.Laws Sec. 12-7-9, which provides:

A police officer may use force dangerous to human life to make a lawful arrest for committing or attempting to commit a felony, whenever he reasonably believes that such force is necessary to effect the arrest and that the person to be arrested is aware that a peace officer is attempting to arrest him. ²

With respect to the Sec. 1983 claim the officers also raised the good faith defense. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975). The jury found the officers not liable to the plaintiff on either the federal or the state ground.

The plaintiff first challenges the jury instructions given with respect to the good faith defense. The standard of review to be applied by this Court is quite clear: an error in jury instructions will mandate reversal of a judgment only if the error is determined to have been prejudicial, based on a review of the record as a whole. DeVasto v. Faherty, 658 F.2d 859, 863 (1st Cir.1981); Smiddy v. Varney, 665 F.2d 261, 265 (9th Cir.1981), cert. denied, --- U.S. ----, 103 S.Ct. 65, 74 L.Ed.2d 66 (1982). Accordingly, the plaintiff must demonstrate both that the charge was erroneous and that the error was prejudicial.

The trial court gave the following instructions concerning the good faith defense to the jury:

Even if plaintiff has proved that a defendant deprived Mr. Connors of life or liberty without due process of law, that defendant has an opportunity to prove that he nevertheless acted in good faith. If a defendant proves by a preponderance of the evidence that he acted in good faith, he cannot be held liable under Section 1983. This defense is different from the plaintiff's burden of proof in that you do not consider whether a defendant's belief was reasonable or not, and but whether a defendant held a good faith belief that his actions were authorized by state law.

(Emphasis added).

We agree with the plaintiff that this instruction was erroneous. In DeVasto v. Faherty, 658 F.2d 859, 865 (1st Cir.1981), this Court outlined the two conditions that must be met for a police officer to be able to invoke the good faith defense in defending against a Sec. 1983 action:

"[i]t is the existence of reasonable grounds for the belief formed at the time and in light of all the circumstances, coupled with good-faith belief, that affords a basis for qualified immunity of executive officers for acts performed in the course of official conduct." Scheuer v. Rhodes, supra, [416 U.S. 232] at 247-248 [94 S.Ct. 1683 at 1691-92, 40...