Ware v. Reed

• Decision Date: 11 July 1983
• Docket Number: No. 81-1438,81-1438
• Citation: 709 F.2d 345
• Parties: Roland WARE, Plaintiff-Appellant, v. Kenneth Dean REED, as an individual and in his capacity as Sheriff of Caldwell County, Texas, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 345

709 F.2d 345

Roland WARE, Plaintiff-Appellant, v. Kenneth Dean REED, as an individual and in his capacity as Sheriff of Caldwell County, Texas, et al Defendants-Appellees.

No. 81-1438.

United States Court of Appeals Fifth Circuit.

July 11, 1983.

Paul E. Knisely, Broadus A. Spivey, David Van Os, Austin, Tex., for plaintiff-appellant.

Nancy M. Simonson, Asst. Atty. Gen., Austin, Tex., for Smith and Maxwell.

Roy Q. Minton, Austin, Tex., for Reed and Braun.

Pamela Schoch, C.G. House, San Antonio, Tex., for Mark D. Hinnenkamp.

Appeal from the United States District Court for the Western District of Texas.

Before BROWN, GEE and JOLLY, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

Improper jury instructions can sometimes prevent a conscientious and attentive jury from unweaving a tangled web. In this appeal from a general verdict against him, Roland Ware assails the district court's instructions to the jury on his federal and state law claims. General instructions were given to the jury on Ware's federal, but not his state law claims. When considered with the most liberal gloss we can place on them, we find that the instructions were deficient in several constitutional dimensions. We therefore reverse.

I. The Facts

Roland Ware brought suit against five Texas law enforcement officials under 42 U.S.C. Secs. 1981, 1983 and 1985(2) and (3). In addition, he alleged three state causes of action--assault and battery, slander, and intentional infliction of emotional distress. The defendants, all of whom are sued in their individual and official capacities, are Kenneth Dean Reed, Sheriff of Caldwell County, Texas, Edward Thomas Braun, Reed's deputy, Mark Douglas Hinnenkamp, Police Chief of Lockhart, Texas, Clayton Smith, a Texas Ranger, and Johnny Maxwell, a polygraph operator employed by the Texas Department of Public Safety.

The factual predicate for Ware's lawsuit is much contested, but two versions of the salient events can be stated with ease. Investigation of a heinous crime led Caldwell County, Texas, Sheriff Dean Reed to the Ware family's doorstep. Preliminary investigative initiatives had resulted in tips which indicated that Sandra Ware Jones, Roland's sister, was last seen with the murder victim, David Johnson. Roland accompanied ¹ the police to headquarters for questioning ². Once at the stationhouse, he was given what might be called the third degree by Lockhart law enforcement officials who later persuaded him to undergo a lie detector test ³ in Austin around midnight the same night. It is undisputed that the questioning of Roland by these law enforcement officials did not culminate until 3:30 or 4:14 the next morning. ⁴

Roland's description of what the interrogation was like differs drastically from the defendants' recollections. Roland alleges that in the course of questioning and administering the lie detector test, the "defendants acted and conspired to subject him to severe verbal abuse, including repeated threats, cursing, intimidation, racial and familial epithets and vilification, and that the abuse culminated in the use of unprovoked physical force by ... the defendants, including striking [him] in the mouth, swinging a fist near his face and striking the wall, pulling his hair, kicking him and stomping his feet."

The defendants, on the other hand, characterize the sheriff's interrogation of Roland as little more than a "father and son talk." All defendants denied participation in any acts of verbal or physical abuse of Roland or the use of threats and racial epithets against him. ⁵

II. Prelude to the Merits

A. The Appellant's Contentions

Ware contends that the district court posed instructions to the jury on his claims of (i) unlawful detention without probable cause and (ii) use of force in violation of due process in such a way as to prevent the jury from properly considering the particular constitutional right at issue. In so framing his argument, Ware professes adherence to the Supreme Court's instruction that "[t]he first inquiry in any Sec. 1983 suit ... is whether the plaintiff has been deprived a right 'secured by the Constitution and laws'." Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 2692, 61 L.Ed.2d 433, 439 (1979). Accordingly, he concludes that the district court committed reversible error by failing adequately to distinguish between the constitutional interests at issue. Ware acknowledges that the court discussed separately certain aspects of his Fourth Amendment claim (involuntary detention) and the Fourteenth Amendment due process claim (use of force), but then, Ware points out, the court improperly aggregated the claims for purposes of the jury's evaluation of the possible constitutional violations. We agree with this assessment of the district court's action and conclude that its charge misled the jury in its deliberations.

B. Standard of Review for Jury Instructions

When reviewing a district court's charge to the jury, we are bound to consider the instructions on the "whole, in view of the allegations of the complaint, the evidence presented and the arguments of counsel to determine whether the jury was misled and whether it understood the issues presented." Coughlin v. Capitol Cement Co., 571 F.2d 290, 300 (5th Cir.1978); Smith v. Borg-Warner Corp., 626 F.2d 384, 386 (5th Cir.1980); First Virginia Bankshares v. Benson, 559 F.2d 1307, 1316 (5th Cir.1977) cert. denied, 435 U.S. 952, 98 S.Ct. 1580, 55 L.Ed.2d 802 (1978); Kyzar v. Vale Do Ri Doce Navegacai, S.A., 464 F.2d 285 (5th Cir.1972) cert. denied, 410 U.S. 929, 93 S.Ct. 1367, 35 L.Ed.2d 591 (1973). "If the charge leaves the reviewing court with 'substantial and ineradicable doubt as to whether the jury has been properly guided in its deliberations' it cannot stand." Martin v. City of New Orleans, 678 F.2d 1321, 1325 (5th Cir.1982) quoting Dwoskin v. Rollins, Inc., 634 F.2d 285, 293 (5th Cir.1981). "The charge need not be faultless", Howard v. General Cable Corp., 674 F.2d 351 (5th Cir.1982), and "we will not reverse unless the instruction as given had a tendency to confuse or mislead the jury." Farace v. Independent Fire Insurance Co., 699 F.2d 204 (5th Cir.1983). Under this familiar rubric, "[t]he test is not whether the charge was faultless in every particular but whether the jury was misled in any way and whether it had understanding of the issues and its duty to determine those issues." Houston v. Herring, 562 F.2d 347, 349 (5th Cir.1977) (per curiam) quoting Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076, 1100 (5th Cir.1973) cert. denied 419 U.S. 869, 95 S.Ct. 127, 42 L.Ed.2d 107 (1974); see also 9 C. Wright & A. Miller, Federal Practice and Procedure, Sec. 2558 (1978).

III. Discussion of the Claims

A. Unlawful Detention

Ware argues that the district court's instructions ⁶ provided little guidance on the claim of unlawful detention under the Fourth Amendment. He contends that in considering his involuntary detention claim the jury should have received an instruction on probable cause. Conversely, the defendants argue that the involuntary detention instruction should not have been presented to the jury at all. They argue that Ware consented to the entire ordeal; that he was not under arrest; that there was no "seizure" within the meaning of the Fourth Amendment; and thus no Fourth Amendment interest is implicated. They concede that there was not probable cause ⁷ to detain him against his will, but point to a line of decisions in Fourth Amendment jurisprudence which instructs that not all contact between police and citizen is scrutinized under constitutional standards. Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); U.S. v. Hernandez, 668 F.2d 824 (5th Cir.1981); U.S. v. Setzer, 654 F.2d 354 (5th Cir.1981); U.S. v. Moeller, 644 F.2d 518 (5th Cir.) cert. denied, 454 U.S. 1097, 102 S.Ct. 669, 70 L.Ed.2d 638 (1981).

The argument over this issue is so much ado about nothing, see note 7 supra, as the Supreme Court has stated the commonly accepted view on when a "seizure" within the meaning of the Fourth Amendment has occurred. "We adhere to the view that a person is "seized" only when, by means of physical force or a show of authority, his freedom of movement is restrained. Only when such restraint is imposed is there any foundation whatever for invoking constitutional safeguards." United States v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct. 1870, 1876, 64 L.Ed.2d 497, 509 (1980) (Opinion of Stewart, J.). The Court then set forth the relevant considerations for the factfinder to determine when a "seizure" of the person has occurred which will implicate the Fourth Amendment.

We conclude that a person has been 'seized' within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.

United States v. Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877, 64 L.Ed.2d at 509 (note omitted). See also United States v. Lara, 638 F.2d 892 (5th Cir.1981); United States v. Robinson, 625 F.2d 1211 (5th Cir.1980); United States v. Elmore, 595 F.2d 1036 (5th Cir.1979).

We think that the instruction on involuntary detention was inadequate to apprise the jury of all the relevant factors to be considered in making this determination. The district court instructed the jury that it must first decide whether Ware was detained without his consent. Then, the jury was told that if it found that Ware was involuntarily detained, it must decide whether the officers acted within the bounds of their authority...