Edwards v. City of Philadelphia

Decision Date21 November 1988
Docket NumberNo. 87-1602,No. 2944,2944,87-1602
Citation860 F.2d 568
Parties26 Fed. R. Evid. Serv. 1321 Douglas EDWARDS, Appellant, v. CITY OF PHILADELPHIA and Officer Haworth, James, Badge
CourtU.S. Court of Appeals — Third Circuit

George F. Schoener, Jr. (argued), M. Mark Mendel, Ltd., Philadelphia, Pa., for appellant.

Jacqueline Urevick (argued), Barbara R. Axelrod, City of Philadelphia, Law Dept., Philadelphia, Pa., for appellee, City of Philadelphia.

Before SEITZ, HIGGINBOTHAM and COWEN, Circuit Judges.

OPINION OF THE COURT

A. LEON HIGGINBOTHAM, Jr., Circuit Judge.

This is an appeal from the judgment entered on behalf of the defendants in an action alleging battery against the City of Philadelphia and an officer of its police force for the excessive use of force in effecting the arrest of the Appellant. Appellant contends that the district court erred in its denial of his motion for a new trial because of several incidents of error in the conduct of the trial, most particularly in the district court's charge to the jury. We have reviewed each of the contentions raised by the Appellant and are unpersuaded that the verdict of the jury, or the judgment entered by the district court in accordance, should be disturbed. Accordingly, we will affirm.

I. Facts

This appeal arises from the action filed by Appellant, Douglas Edwards, against the City of Philadelphia and Philadelphia police officer, James Haworth, for violations of Edwards's federal civil rights and for battery and negligence which, Edwards alleged, resulted from excessive force that Haworth used in arresting Edwards in January, 1983.

Haworth, acting in his capacity as an on duty police officer, was patrolling an area in the twenty-second police district of Philadelphia in the early morning of January 29. At approximately 1:30 a.m. he received a general radio dispatch advising patrol cars in his area that an auto theft had occurred. Haworth proceeded to the street where the stolen vehicle had been spotted and saw Edwards running into an alley one block away. He pursued Edwards into the alley and shouted for him to stop. Edwards stopped running and Haworth, with his revolver drawn, approached him.

The occurrences in the alley immediately following the confrontation are disputed by the parties. Haworth testified that as he pressed Edwards, face forward, against a wall in the alley in order to search him, Edwards pulled a revolver from his right rear pocket and aimed it at Haworth's groin. Appendix ("App.") at 354, 368. At that point, Haworth testified, he shot Edwards.

Edwards testified that Haworth ordered him to put his hands on the wall and he complied. Edwards then testified that Haworth handcuffed him and, despite the fact that Edwards showed no resistance, Haworth "pushed [Edwards's] face into the wall several times ... [and Haworth's] revolver inexplicably went off while [Edwards] was being slammed into the wall." Appellant's Brief at 2, see also, App. at 117. The bullet struck Edwards in the back and exited through the front part of his body directly beneath his rib cage.

Edwards filed the underlying action alleging that Haworth's conduct was unwarranted and excessive and constituted a violation of Edwards's civil rights. 1 The case was tried before a jury which entered a verdict on behalf of the City and Haworth. Edwards challenges the judgment that was entered pursuant to the verdict and asserts several points of error in the district court's conduct of the trial and submission of issues to the jury.

II. Burden of Proof of Excessive Force

Edwards asserts that the district court erred in its instructions to the jury regarding privilege and probable cause. He argues that, although Haworth had a privilege to use force in making a lawful arrest, cf. McKinney v. Whitfield, 736 F.2d 766, 769 (D.C.Cir.1984) ("physical contact batteries may qualify for absolute immunity when administered by federal security or law enforcement officers whose job it is to maintain order and the public peace"); Restatement (Second) of Torts Sec. 118 (1965) ("[t]he use of force against another for the purpose of effecting his arrest and the arrest thereby effected are privileged" if the arrest is lawful and the force used is not excessive), he had the burden of demonstrating that the force that he used to effect the arrest was reasonable. Edwards argues that Haworth's assertion of the privilege to use force in making an arrest is an affirmative defense to the tort of battery that underlies the Sec. 1983 claim and, as with other affirmative defenses, the burden of proving that defense is on the party who invokes it. Edwards contends, therefore, that "[t]he burden is upon the defendant to prove that the force was reasonably necessary and the arrest was valid." Appellant's Brief at 10.

In his argument to the district court, it appears that Edwards contended that the burden of demonstrating the reasonableness of the force used was intertwined with the demonstration of probable cause and that each were elements of an affirmative defense for which Haworth had the burden of proof. The district court, correctly, rejected that argument and reasoned that

[i]t would defy logic, if on a plaintiff's claim of common law battery, the burden of proof shifted to a defendant police officer and the law required him to demonstrate or to establish that probable cause for an arrest did in fact exist. Under the plaintiff's view ... each police officer who makes a valid arrest could be subjected to suit for battery and in each instance be required in a civil proceeding to establish that probable cause did in fact exist. Such a requirement could be overly burdensome to law enforcement officers, would spawn needless and frivolous litigation, and would be contrary to the Pennsylvania tort law.

Edwards v. City of Philadelphia et al., No. 85-2057, Order Denying Motion for New Trial at 2-3 (E.D.Pa. Sept. 4, 1987), reprinted in App. at 668-669. On this appeal, Edwards concedes that the burden to negate probable cause in making the arrest falls to him. 2 He argues, however, that there is a distinction between probable cause to arrest and justification of the amount of force that is used in effecting that arrest. As to the latter, he contends that the burden of proof is properly placed upon the defendant if the force used by the officer is that which is normally used to effectuate an arrest, and if the arrest was made with probable cause, then the officer would not be liable.... [but] if the force used was excessive, then the officer would be liable notwithstanding the existence of probable cause, i.e. "the initial privilege of arrest may be lost through the use of excessive force."

Appellant's Brief at 10-11 (quoting Belcher v. United States, 511 F.Supp. 476, 484 (E.D.Pa.1981)). Accordingly, Edwards argues that "if a police officer fails to prove that a lawful arrest occurred and that the force used was not excessive, he is not privileged and a verdict must be returned in favor of the plaintiff." Appellant's Brief at 11. He contends that because he has established a prima facie case of battery, (which he asserts is demonstrated on the record by Haworth's admission that he intended to shoot Edwards, see App. at 354-56), Haworth has the burden to prove that his liability for that battery is nullified by his privilege to arrest. We reject this contention.

Certainly, the use of excessive force will negate the privilege to commit a battery that accompanies a lawful arrest. See Belcher, 511 F.Supp. at 484; Kedra v. City of Philadelphia, 454 F.Supp. 652, 672-73 (E.D.Pa.1978) (privilege to commit battery in the course of lawful arrest does not extend to the use of excessive force), see also, Restatement (Second) of Torts Secs. 132, 133 (1965). Edwards has cited no authority, however, and we have discovered none for the proposition that the burden to demonstrate that the force used was not excessive is properly allocated to the defendant. Indeed, the case law on point holds precisely the opposite. In Wing v. Britton, 748 F.2d 494 (8th Cir.1984), for example, the Court of Appeals for the Eighth Circuit reviewed an appeal from a judgment that is closely analogous to the judgement appealed from in the present case. In Wing, the appellant sued a municipality and one of its police officers under Sec. 1983 and under the common law theory of battery, for injuries that the appellant received during his arrest by the officer. The appellant contended that the officer had used excessive force during the arrest and, therefore, that he was not immunized by privilege from liability for the battery that he had committed. 3 The district court rejected that theory and, in its instructions to the jury, placed the burden of proof of excessive force upon the appellant. The court of appeals affirmed.

The decision of the appellate court was predicated upon that court's view that the demonstration of excessive force was an element of the Sec. 1983 claim and, therefore, the burden of proving it fell to the appellant. The court held that

[i]n a Sec. 1983 action, the plaintiff bears the burden of proving that the defendant, while acting under color of state law, deprived him of a right secured by the Constitution or laws of the United States.... Thus, in a case where the alleged deprivation is the use of excessive force in the course of an arrest, the plaintiff must prove that the defendant used excessive force while arresting him.

Wing, 748 F.2d at 497 (citations omitted). Cf. Stone v. City of Chicago, 738 F.2d 896, 900 (7th Cir.1984) (jury instruction providing that "[i]n order to prevail ... under [Sec. 1983], the plaintiffs must prove by a preponderance of the evidence ... that the individual defendants used excessive force in effectuating the arrests of the plaintiffs," (emphases in original), was proper and did not conflict with other instructions...

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