Howerton v. Fletcher

• Decision Date: 02 March 2000
• Docket Number: No. 98-2795,98-2795
• Citation: 213 F.3d 171
• Parties: (4th Cir. 2000) BRENDA HOWERTON, Administratrix of the Estate of Daryl Eugene Howerton, Plaintiff-Appellant, v. CHARLES C. FLETCHER, Individually and in his official capacity; JOSE EMILIO BLANCO, Individually and in his official capacity; CITY OF GREENSBORO, Defendants-Appellees
• Court: U.S. Court of Appeals — Fourth Circuit

Page 171

213 F.3d 171 (4th Cir. 2000)

BRENDA HOWERTON, Administratrix of the Estate of Daryl Eugene Howerton, Plaintiff-Appellant, v. CHARLES C. FLETCHER, Individually and in his official capacity; JOSE EMILIO BLANCO, Individually and in his official capacity; CITY OF GREENSBORO, Defendants-Appellees.

No. 98-2795

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

March 2, 2000, Argued

May 12, 2000, Decided

ARGUED: Marvin Ray Sparrow, Durham, North Carolina, for Appellant. Joseph Robert Beatty, HILL, EVANS, DUNCAN, JORDAN & DAVIS, P.L.L.C., Greensboro, North Carolina, for Appellees. ON BRIEF: Polly D. Sizemore, Joseph P. Gram, HILL, EVANS, DUNCAN, JORDAN & DAVIS, P.L.L.C., Greensboro, North Carolina, for Appellees.

Before WILKINS and LUTTIG, Circuit Judges, and James H. MICHAEL, Jr., Senior United States District Judge for the Western District of Virginia, sitting by designation.

Affirmed by published opinion. Judge Luttig wrote the opinion, in which Judge Wilkins and Senior Judge Michael joined.

OPINION

LUTTIG, Circuit Judge:

A jury returned a verdict against plaintiff-appellant Brenda Howerton in her suit under 42 U.S.C. 1983 against two members of the City of Greensboro police department, in which she alleged that the use of excessive force by the police officers caused her son's death. Howerton now challenges the district court's instruction that, in deciding whether the force used against her son was "excessive," the jury was not to consider the risk posed to third parties by the officers' actions. Concluding that the district court did not err in its instruction, we affirm.

I.

On September 8, 1994, Daryl Howerton, who was mentally disabled, was walking into a barber shop, wearing only a cap and sunglasses and carrying a knife, when two Greensboro, North Carolina police officers, appellees Charles Fletcher and Jose Blanco, arrived on the scene in response to a telephone call from an employee at a nearby business. As the officers exited their car, several people were leaving the barber shop, and one of these individuals told the officers that there was a naked man with a knife inside. According to the officers' testimony, Howerton began to approach a third party, Jamie Moore, who was standing just outside the barber shop. Perceiving that he was attempting to attack Moore, and after unsuccessfully trying to subdue him with mace, the officers shot and killed Howerton.¹

Howerton's mother filed this section 1983 action, alleging that the officers used excessive force, and that the city of Greensboro was deliberately indifferent in training its police officers as to issues regarding the use of deadly force against the mentally disabled. The district court granted summary judgment to the municipality on the deliberate indifference claim. The excessive force claim against the officers proceeded to trial.

During the trial jury's deliberations, the jury informed the court that eleven jurors had agreed on a verdict, but that one wanted to abstain. The next morning, the district court explained to the jury that abstention was impermissible. Roughly one hour later, the jury foreman submitted to the court a note that read:

Could we have a clarification on the Greensboro Police Department definition of public safety as it pertains to their policy number 1.6.3, "use of force."

J.A. 93. The court was unsure of exactly what the jury meant to ask and, in an effort at clarification, the court asked the foreman if the jury meant the note to refer to official "disregard for public safety of other people in the area." J.A. 94. The foreman confirmed that the note was so intended, and the court instructed the jury that it was not to consider risks to persons other than Howerton:

In this case, you are not to consider in reaching your determination the public safety of other individuals. The only suit here is the determination of whether excessive force was used against the deceased or not used -- [ ] there was either excessive force used against the deceased, or there was not excessive force used against the deceased.

The fact that other people or property may have been hit by bullets is not for your consideration in this matter. You will confine yourselves to a determination of the matter involving the deceased and the officers shooting.

J.A. 94-95. Fifteen minutes after the jury resumed its deliberations, it returned a verdict in favor of the officers.

Brenda Howerton now appeals, claiming that the district court's above-quoted instruction was in error.

II.

Howerton contends that, because a jury is to consider "the totality of the circumstances," Tennessee v. Garner, 471 U.S. 1, 8-9, 85 L. Ed. 2d 1, 105 S. Ct. 1694 (1985), in determining whether excessive force has been used, the district court erred in instructing the jury that it was not to consider risk to bystanders as one such "circumstance." Her claim is a novel one. The parties conceded at argument that they were unable to find a case in which such a claim was ever advanced, and such a claim has never been addressed by the Supreme Court or any Court of Appeals. While we do not dismiss the argument out of hand, upon reflection we reject the argument because we conclude that its premise, that the danger to which third persons are exposed is directly relevant to the question whether excessive force was employed against the plaintiff, is incorrect.

In Graham v. Connor, 490 U.S. 386, 104 L. Ed. 2d 443, 109 S. Ct. 1865 (1989), the Supreme Court articulated the framework within which excessive force claims are to be evaluated:

In addressing an excessive force claim brought under 1983, analysis begins by identifying the specific constitutional right allegedly infringed by the challenged application of force. . . . The validity of the claim must then be judged by reference to the specific constitutional standard which governs that right, rather than to some generalized "excessive force" standard.

Id. at 394. When, as here, the excessive force claim is asserted under the Fourth Amendment, the plaintiff in effect argues that his personal freedom of movement was unreasonably restrained by the official conduct. The question that must be resolved, therefore, is whether it was objectively reasonable to use the force that was used in order to affect that individual's seizure. See id. at 395-96. The resolution of this question turns upon the conduct of the plaintiff which prompted the attempted seizure in the first place, the amount of force employed to affect the seizure, and the justification for the particular force used.

As such, the question is not whether the officer acted reasonably vis-a-vis the world at large. Rather, the question is whether the officer acted reasonably as against the plaintiff. See Archuleta v. McShan, 897 F.2d 495, 497 (10th Cir. 1990) ("[A] section 1983 claim must be based upon the violation of plaintiff's personal rights, and not the rights of someone else."). That inquiry is not dependent at all on whether the officer did or did not subject third parties to risk, or even on whether he employed unreasonable force against them. Third parties to an officer's employment of force may have available to them section 1983 causes of action against the officer for the force that was used indirectly against them, although such causes of action may generally be available under the Fourteenth Amendment, rather than the Fourth Amendment. Compare Landol-Rivera v. Cruz Cosme, 906 F.2d 791, 794-97 (1st Cir. 1990), with Roach v. City of Fredericktown, 882 F.2d 294, 297 (8th Cir. 1989). But whether excessive force was employed against the principal excessive force plaintiff is in no way dependent upon the extent to which that force was or was not impermissibly used against third persons, or the extent to which third persons were or were not exposed to risk by the officer's employment of force.

Indeed, to recognize the risk posed to third parties by the official use of force as a component of the excessive force inquiry would be, in effect (though admittedly not in fact) to afford the section 1983 plaintiff standing to seek and obtain relief for the unreasonable use of force against third parties. Cf. Rakas v. Illinois, 439 U.S. 128, 140, 150, 58 L. Ed. 2d 387, 99 S. Ct. 421 (1978) (holding that a defendant cannot assert the Fourth Amendment's protection against unreasonable searches unless his own reasonable expectation of privacy was violated, regardless whether the search at issue violated some third person's reasonable expectation of privacy); Scott v. Henrich, 39 F.3d 912, 916 (9th Cir. 1994) ("If, for example, the [police] department bans high-speed chases in order to save gas, or to protect bystanders, a suspect arrested after an unauthorized chase can't complain about the violation of a rule not intended for his benefit.").²

We would not permit an officer to defend against an excessive force allegation on the ground (even in part) that the force employed was reasonable because no one other than the plaintiff either sustained force or was otherwise exposed to risk as a result of the officer's action.³ We see no more reason to permit the excessive force plaintiff to rely offensively on the harm or risk to third persons when attempting to prove that excessive force was used against him.

Although, as noted, the Supreme Court has never addressed the specific question we address herein, our holding finds full support in the guidance that the Court has provided with respect to excessive force claims. First, when the Court has identified the factors relevant to the excessive force inquiry, it has never mentioned any factor that could be understood to relate to the harm or risk to which third persons were exposed by police action. In Graham, for example, the Court provided the following (non-exhaustive) list of factors to be considered: "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the...