Cox v. Treadway

Decision Date14 March 1996
Docket NumberNo. 94-5184,94-5184
Citation75 F.3d 230
Parties, 43 Fed. R. Evid. Serv. 958 Joseph Walter COX and Bennie Burgan, Jr., Plaintiffs-Appellants, v. Gregory TREADWAY, Jerry Warman, William P. Hanka, Michael Dossett, John Winstead, Robert O'Neil, Russell Wilson, Daniel Assef, Daniel Hyland, and Patrick Timmons, Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

Gail Robinson (argued and briefed), Kevin McNally (briefed), Frankfort, for plaintiffs-appellants.

Winston E. King, Asst. Law Director (argued and briefed), Paul V. Guagliardo (argued and briefed), Denise Deberry Brown, City of Louisville, for defendants-appellees.

On Appeal from the United States District Court for the Western District of Kentucky.

Before: RYAN, BATCHELDER, and MOORE, Circuit Judges.

MOORE, J., delivered the opinion of the court, in which BATCHELDER and RYAN, JJ., unanimously joined in Parts I, II B, II C, II D, III A, III C, III D, III E, and III F. Parts II A and III B express the views of only Judge MOORE. RYAN, J. (pp. 241-42), delivered a separate opinion concurring in part, in which Judge BATCHELDER concurred, which is thus the opinion of the court with respect to the issues addressed in Parts II A and III B.

MOORE, Circuit Judge.

Plaintiffs-Appellants Joseph Cox ("Cox") and Bennie Burgan ("Burgan") appeal an adverse jury verdict on their police brutality claim under 42 U.S.C. § 1983. Cox and Burgan (collectively "Appellants") allege that the trial court made various errors including giving improper jury instructions, excluding certain evidence, and dismissing four defendants on statute of limitations grounds. The judgment of the district court is affirmed, for the reasons explained below in this opinion and in that of Judge Ryan.


Louisville, Kentucky narcotics officers had planned a reverse drug buy so that they could arrest Cox. The police planned to have an informant, Wayne Sprigg, meet Cox on June 20, 1990, at a truck stop where Sprigg would sell Cox some marijuana that had been provided by the police. The marijuana would be stored in the trunk of Sprigg's car. Sprigg was to give Cox or his accomplice, Burgan, a phony key to Sprigg's car. Officers were to move in and arrest Cox and/or Burgan after the money had been transferred.

However, the officers' plan went awry. Sprigg gave his "phony" car key to Burgan, who actually started Sprigg's car and drove off. Cox and Sprigg then drove off in Cox's car. After police chased Cox's car, Cox pulled the car into a yard, jumped out of the car, and ran. Police vehicles also pulled into the yard and pursued Cox. Cox and three police officers apparently fell into a nearby ravine.

At this point, the parties' stories diverge. The officers testified that they pulled Cox out of the ravine, instructed him to get on the ground, and secured his hands behind his back with a military whip belt. Cox testified that the officers pushed him face down forced him to his knees, and kicked him in his head, back, and shoulders, while he was handcuffed and not resisting in any manner. The officers denied that anyone struck or kicked Cox.

Cox was put in Officer Dossett's car, which apparently then joined in the search for Burgan. Cox testified that a voice on the police radio ordered the officers to "ram" Burgan's car. Dossett's car collided with Burgan's car.

An officer went to Burgan's car and pulled Burgan out of the car. The officers testified that Burgan struggled, kicked, and tried to get out through the other door before he was pulled from the car. The officers also testified that Burgan struggled until several officers handcuffed him and leaned him on the back of the car. Appellants testified that an officer opened Burgan's car door and walked him to the back of the car, and that Burgan did not resist in any way.

Neither party disputes that Burgan received a minor head injury, but the parties disagree about the cause of the injury. The officers asserted that Burgan was injured in the automobile accident or when he was pulled from the car, and that no officer struck Burgan at any time. Appellants asserted that Officer Treadway hit Burgan twice with the butt of a gun--once in the head and once on the hand--and that Officer Treadway yelled that the marijuana had better be in the trunk of the car Burgan was driving.

Appellants also testified that, after Cox asked Officer Dossett whether Treadway's actions were necessary, Officer Treadway came over to Officer Dossett's car, opened the car door, and hit Cox twice with his fist. Cox testified that Treadway then stuck Treadway's gun in Cox's mouth and said "I ought to blow your ... brains out and throw you in the river and be done with you." The officers denied that these events occurred.

The officers did not find the marijuana in the car Burgan was driving. The officers then took Burgan to Burgan's house to look for the marijuana. Burgan was taken to the bedroom, where appellants alleged that Officer Treadway choked and hit Burgan. The officers denied that any officer choked or hit Burgan.

A. District Court's Instructions Regarding Force.

Appellants argue that the district court erred in failing to give their requested instruction that no force can be used on a citizen who has been arrested and restrained. The district court orally instructed the jury on the amount of force that officers could use as follows:

The defendants have the lawful authority and indeed the lawful duty under state law to use physical force as may have been reasonably necessary to accomplish an arrest and to protect themselves from physical harm at the hands of any person, including, of course, a plaintiff.

If you find from a preponderance of the evidence either that a defendant knowingly used greater force than he believed was reasonably necessary in order to accomplish a lawful purpose or knowingly used more force than would have appeared to a reasonable person in like circumstances to be necessary in order to accomplish a lawful purpose, then you may find that a defendant acted unlawfully contrary to state law and did, without due process of law, deprive a plaintiff of liberty secured and protected by the constitution of the United States.... [A police officer] may use reasonable force to make an arrest or to defend himself....

The issue in this case deals with reasonable force. The right to make an arrest or an investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat to effect it. The reasonableness inquiry in an excessive force case is an objective one. The question is whether the officers' actions are objectively reasonable in light of the facts and the circumstances confronting them without regard to their underlying intent or motivation.

Appellants' requested instruction was:

... it is a violation of the Fourth Amendment to the United States Constitution for an officer, acting under color of law, to use physical force on a citizen who has been arrested and restrained.

The district court refused to give the requested instruction.

Appellate courts do not review jury instructions for technical error. United States v. Cobb, 905 F.2d 784, 788 (4th Cir.1990), cert. denied, 498 U.S. 1049, 111 S.Ct. 758, 112 L.Ed.2d 778 (1991). Appellate courts "review the jury charge as a whole to determine whether it fairly and adequately submits the issues and the law to the jury." United States v. Carr, 5 F.3d 986, 992 (6th Cir.1993).

A refusal to give a requested jury instruction is reversible error only if three conditions are satisfied. First, the omitted instruction must be a correct statement of the law. Second, the instruction must not be substantially covered by other delivered charges. Third, the failure to give the instruction must impair the requesting party's theory of the case. Carr, 5 F.3d at 992.

Appellants' requested instruction essentially is a correct statement of the law, although it does not go far enough. Appellants' requested instruction also should have contained a statement that the arrestee must be restrained and must be completely under the control of the police for the "no force" rule to apply. This court has held that beating and kicking restrained suspects who are in the control of the police is "plainly excessive" force. Lewis v. Downs, 774 F.2d 711, 714 (6th Cir.1985). Accord, McDowell v. Rogers, 863 F.2d 1302, 1307 (6th Cir.1988) (need for force is "nonexistent" when suspect handcuffed and not trying to resist or escape); Feemster v. Dehntjer, 661 F.2d 87, 89 (8th Cir.1981) ("[t]here is no occasion for the use of any force against a prisoner who quietly submits.... No matter how difficult it is to apprehend a prisoner, the law does not permit officers to beat him once he is securely in custody.").

The charge actually given to the jury in this case did not substantially cover the post-restraint Fourth Amendment law that was partially contained in appellants' requested instruction, because the charge as given could have allowed the jury to believe that some force could be used on a restrained suspect in police control as long as the force was not excessive. The failure to give a post-restraint instruction in this case did impair the appellants' theory of the case by not informing the jury that there is no justification for force when the suspect is securely in custody and not attempting resistance or escape. Therefore, the jury should have been instructed that it is unreasonable and thus a violation of the Fourth Amendment for a police officer, acting under color of law, to use physical force on a citizen who has been arrested and restrained, who is securely under the control of the police, and who is not attempting to escape. See Feemster, 661 F.2d at 89.

The district court should have given this suggested Fourth Amendment...

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