Parker v. City of Nashua, N.H., s. 94-1210

• Decision Date: 06 November 1995
• Docket Number: Nos. 94-1210,94-1272,s. 94-1210
• Parties: Sharon L. PARKER, Plaintiff, Appellee, v. CITY OF NASHUA, NEW HAMPSHIRE, et al., Defendants, Appellees, F. Sheehan, in his Official Capacity as a Nashua Police Officer, Defendant, Appellant. Sharon L. PARKER, Plaintiff, Appellant, v. CITY OF NASHUA, NEW HAMPSHIRE, et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 9

76 F.3d 9

Sharon L. PARKER, Plaintiff, Appellee, v. CITY OF NASHUA, NEW HAMPSHIRE, et al., Defendants, Appellees,

F. Sheehan, in his Official Capacity as a Nashua Police

Officer, Defendant, Appellant.

Sharon L. PARKER, Plaintiff, Appellant, v. CITY OF NASHUA, NEW HAMPSHIRE, et al., Defendants, Appellees.

Nos. 94-1210, 94-1272.

United States Court of Appeals, First Circuit.

Heard Nov. 6, 1995.

Decided Feb. 5, 1996.

Thomas Quarles, Jr. and Dyana J. Crahan with whom Robert E. McDaniel and Devine, Millimet & Branch, P.A., Manchester, NH, were on briefs for defendants.

Francis G. Murphy, Jr. with whom Joseph F. Keefe, Kathryn B. Johnston, and Hall, Hess, Kenison, Stewart, Murphy & Keefe, P.A., Manchester, NH, were on briefs for plaintiff.

Before SELYA, Circuit Judge, BOWNES, Senior Circuit Judge, and BOUDIN, Circuit Judge.

BOUDIN, Circuit Judge.

In the district court, Sharon Parker was awarded substantial damages by a jury which found that a police officer had violated her rights in the course of an arrest. On this appeal, almost the only issue presented, and certainly the only one warranting discussion, is a claim that the district court erred in describing for the jury the state disorderly conduct statute used by the police officer to justify Parker's arrest. Because the issue is narrowly framed, our description of the factual background is brief.

Late in the evening of February 10, 1990, Parker returned by car to her parents' house in downtown Nashua, New Hampshire, from a dance at the local Moose Club. There were six passengers in the car: Parker and her husband, Parker's parents, her sister, and her sister's companion. The companion owned and drove the vehicle. Parker has a disorder affecting the left side of her body; and for this reason she does not drink alcohol.

When the car reached the house, Parker and her husband entered their own car, which had been left in front of the house prior to the dance. At that point a police cruiser driven by officer James Lima pulled up behind the Parkers' car and flashed its light. The officer previously had been parked by the side of the road when Parker and her companions drove by, en route from the dance to the home of the Parker parents. The officer later testified that he thought that the car's driver had committed traffic violations. It is unclear whether the officer confused the two cars, but when Parker got out of her own vehicle in response to the flashing lights, the officer asked for her license and registration.

At this point, the police version of what occurred begins to diverge sharply from that of Parker and her companions. According to Lima, he was assaulted by Parker's husband, Parker's sister, and the sister's companion. Lima pressed a button calling for emergency backup. Two other officers arrived. The struggle continued and Parker's husband was buffeted. Ultimately, the husband, sister, and sister's companion were arrested. By this time, Parker's parents and others had come out to the scene.

Additional police arrived, including Officer Frank Sheehan, who eventually arrested Parker herself. Officer Sheehan's later testimony was that he saw Parker standing in the road yelling at the other officers, using obscenities. He told her to quiet down and leave the road. According to Sheehan, eventually Parker moved to the sidewalk but continued to yell. At that point Sheehan said he arrested Parker for disorderly conduct.

Parker's description of events is quite different. In her own later testimony, she denied being in the road and claimed to have said to Officer Sheehan only that she wanted to go to the police station with her husband who was being arrested. Sheehan, she says, responded with an obscenity, declaring that the police car was not a taxi. Parker testified that she simply turned away and walked toward the house, saying to her mother that this was "the most unbelievable thing I've ever seen."

In all events, Parker was handcuffed, offering no resistance. She later offered medical testimony that her shoulder and upper arm, already susceptible to injury because of her medical condition, were wrenched during the handcuffing. Then, en route to the police cruiser, she says that she was pulled or tugged by the handcuffs so that she fell on the ground and was then dragged by the police over a snow bank. The police version is that this was an accidental fall.

Parker was arrested for and charged with disorderly conduct. The charges were eventually dropped by the authorities. In due course, she brought the present action in district court against the City of Nashua, the Nashua Police Department and various officers including Sheehan. Her federal claim under 42 U.S.C. § 1983 was based on her rights under the Fourth and Fourteenth Amendments to be free from unreasonable seizure. She also asserted state law claims based on her allegedly unlawful arrest. The case was tried before a jury in January and February 1994.

At the trial, Parker and the police offered their respective versions of what had happened. There was testimony from Parker, Sheehan and a number of other witnesses on both sides who had been present at the scene. Parker, who was a government social worker, proffered medical and economic evidence to support a very substantial award of damages. The jury returned a large verdict for Parker against Sheehan (although smaller than requested), finding specially that Parker's rights under both federal and state law had been infringed.

On this appeal, defendants' central claim is that the district court erred in failing to charge the jury properly as to the offense for which Parker was arrested. The premise of Parker's claim was that she had been arrested even though the police lacked probable cause to believe that she had committed or was committing an offense. See Michigan v. DeFillippo, 443 U.S. 31, 36, 99 S.Ct. 2627, 2631, 61 L.Ed.2d 343 (1979). To decide whether the police had probable cause, the jury had to match what they found to be the facts--more accurately, the reasonable perception of police as to those facts--against the elements of the offense.

The New Hampshire disorderly conduct statute, N.H.Rev.Stat.Ann. § 644:2, comprises the misdemeanor offense labelled disorderly conduct; but the statute, reprinted in an appendix to this opinion, describes nine different ways of committing the offense and covers over a page of single-spaced text. Several of the offenses described in the statute were arguably pertinent to the police version of events; others--e.g., interference with a firefighting operation or obstructing the entrance to a public building--had nothing whatever to do with the arrest.

A reading of Sheehan's trial testimony strongly suggests that the disorderly conduct offense that he deemed Parker to have committed fell under section III(a) of the disorderly conduct statute. That provision is directed at anyone who purposely causes a breach of the peace, annoyance or alarm, or reckless risk of these consequences, by making loud or unreasonable noises in a public location. Sheehan's testimony at trial emphasized the loud noises that he said Parker was making and the risk that the gathering crowd would be incited.

It is difficult to be sure just how the parties treated the matter when presenting their case, because parts of the transcript (e.g., the closing statements) have not been provided by defendants. But it is clear that when it came to charging the jury, the defense in its requests to charge asked the judge to read almost all of the disorderly conduct statute to the jury. The trial judge confined his charge to the loud noise offense described in section III(a). The court's refusal to charge more broadly is now assigned as error.

We will assume for purposes of this appeal that Sheehan was entitled at trial to justify his arrest of Parker under any provision of the disorderly conduct statute that the evidence at trial might show to have applied to her conduct. There was some evidence from the police witnesses to suggest that Parker used obscenities and refused to comply with a lawful police order; it is more doubtful that the evidence showed any obstruction of traffic. Thus a request that the jury be instructed as to at least two of these other disorderly conduct offenses was arguably proper. ¹

An initial difficulty is that Fed.R.Civ.P. 51 provides that "[n]o party may assign as error ... the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection." Further, to satisfy Rule 51 "the judge must be told precisely what the problem is, and as importantly, what the attorney would consider a satisfactory cure." Linn v. Andover Newton Theological School, Inc., 874 F.2d 1, 5 (1st Cir.1989). And the lawyer must propose a lawful instruction or correction, and not one that substantially overstates the law in that party's favor. Scarfo v. Cabletron Systems, Inc., 54 F.3d 931, 944 (1st Cir.1995).

In this instance, after the district court instructed the jury, defense counsel promptly objected to the failure to read the "entire disorderly conduct statute" to the jury. When the court said that Parker had been charged only with violating section III(a) and "[n]obody claims she was violating the rest of it," defense counsel responded:

We adduced testimony in evidence that she violated that section where she was declining to comply with a reasonable order of a police officer, which I think is toward the end of the substantive sections of it.

The trial judge said that he did not think that "it" (presumably referring to the evidence) would support such a charge, noted defense counsel's objection, and moved on.

The defense gave the district court no justification for reading the entire statute to the jury and so failed to tender a legally correct instruction. This requirement is no formality: the...