*2
KAUFMAN,
Before
FEINBERG and
WINTER,
Judges.
Circuit
IRVING
KAUFMAN,
R.
Judge:
Circuit
In
appeal
from jury
verdict exoner-
ating the defendant in a civil rights action
damages
flowing
from false
we
are called upon to determine whether the
court's
to the jury was of a
kind requiring
particular,
reversal.
are asked to assess whether the affirma-
tive
defense of
immunity is an
issue appropriate for
by
determination
solely
one
judicial
disposition
—or
as a matter of law.
After less than twenty four hours of
deliberation,
returned a verdict for
by
defendant
answering “no”
“Did
L.
ar-
falsely
rest Lamont Warren?” In an earlier trial
also
Judge Clarie,
conducted before
exonerated
Officer
of claims
ex-
force,
cessive
discrimination,
racial
and in-
filing
tentional
of a false
report, but
claim,
deadlocked on the false arrest
inquiries
Dwyer’s
answer
refused
the defen-
in favor
to one
voting five
wrong?”
“What
going on?”
“What’s
dant.
his driv-
proffered
that he
claimed
Warren
committed
the trial
claims
accepting, Dwyer
license,
before
but
er’s
jury to
instructing the
error
reversible
*3
police cruis-
against the
to lean
him
ordered
of
determining the lawfulness
consider, in
gazing
encircling and
allegedly
After
er.
proba-
was
whether
plaintiffs
moments, Dwyer
several
Warren
at
criminal
additional
for an
ble cause
peace and
of
for breach
in
Warren
and
was seized
arrested
plaintiff
imposed after
police
that
in the back
to
him sit
contends
Appellant further
ordered
custody.
its
reversing
by
erred
court
the district
car.
submitting
and
initial trial
in the
position
hand, testi-
other
Dwyer, on the
Officer
qualified immu-
defense
affirmative
group
informed
promptly
he
that
fied
for determination.
nity to the
merely
burglary
and
investigating
was
he
affirm
we
below
the reasons
For
said,
he
identification;
gun,
his
requested
determine
Although
cannot
judgment.
re-
Warren
He claimed
concealed.
con-
even
conclusively whether
stated
and instead
name
give his
fused
defense
sidered
people,
powerful black
many
he knew
that
liability, the
noof
its verdict
arriving at
in
Street, and
Huntington
lived on
he
redundant,
so
but not
most
charge was at
police offi-
aof Hartford
the brother
error.
prejudicial
constitute
confusing as to
smelled
that Warren
noted
Dwyer
cer.
his behavior
characterized
and
alcohol
BACKGROUND
stated
obscene.
loud,
and
abusive
dispute.
in
are not
following facts
or
down
to calm
Warren
he warned
Hartford,
Warren, originally of
Lamont
to “rant
continued
arrest, yet Warren
risk
Massachu-
in
Connecticut,
resides
presently
language.
profane
rave,”
used
and
and
computer
employed as
setts,
ishe
where
Warren
arrested
that he
Dwyer maintained
Au-
On
company.
insurance
analyst by an
conduct
his
peace because
breach
friends
with
drove
gust
Warren
crowd
attracting
hostile
at his broth-
his relatives
to visit
Hartford
in such
condition
engender a hazardous
At
Huntington Street.
on
residence
er’s
Conn.Gen.Stat.
neighborhood.
high crime
his
and
midnight, Warren
approximately
53a-181.
§
automobile
to his
route
were en
friends
street,
they were
when
across
parked
War-
returning identifications
After
by
for identification
asked
and
approached
filling out a
companions
three
ren’s
Dwyer, an offi-
defendant-appellee
arrest, Dwyer drove
for Warren’s
form
Department
Police
the Hartford
cer with
po-
where
Huntington Street
end of
the time.
years at
two
for almost
As Warren was
stationed.
van was
lice
report-
dispatch
to a radio
responding
vehicle,
allegedly
he
into the
transferred
aat
progress
burglary
ing
unrelated
an
Dwyer.
“get”
he would
stated
residence.
Huntington Street
neighboring
additional
accordingly, recorded
Dwyer,
Warren’s
undisputed that
is further
It
report.
police
threatening in the
charge for
drivers’ licens-
produced
companions
three
53a-62.
Conn.Gen.Stat. §
Dwyer veri-
while
silent
remained
es
was then
Warren
radio,
undisputed
It is
over
backgrounds
fied their
where
police station
prior ar-
Hartford
no information
taken
revealed
which
strip
booked, photographed,
he
rests.
hours
for 8-9
searched, and incarcerated
however, dispute,
sharply
parties
At his
post
bond.
was able
he
before
Warren’s
attended
which
circumstances
Superior
in Connecticut
appearance
first
testified
check.
identification
declined
however,
prosecutor
Court,
Dwyer, who
frightened
he was
trial that
both
judge dismissed
prosecute
de-
gun,
his
his hand
approached
charges.
explanation,
without
identification
manded
day
DISCUSSION
deliberations,
On
second
War-
exception
ren took
to the court’s instruc-
jury charge
is basic law that a
It
ground
tion on the
the offense of
be
entirety,
should
examined
its
“threatening” was added after he had been
strand-by-strand.
scrutinized
Lowe
peace—and
arrested—for
inwas
Dist.,
Commack
Free
Union
School
custody. Thus, plaintiff protested,
(2d Cir.1989). Generally,
charge improperly permitted the jury to
judgment
we will reverse the
of a trial
find for
the defendant
prob-
officer if
grant
new trial because
anof
lacking
able
pro-
arrest
error
jury instructions
we are
vided there was
cause for the
persuaded,
on a
based
review the record
*4
subsequent charge of threatening. After
whole,
prejudicial
as a
the
that
error was
hearing objections
Dwyer’s counsel,
from
charge
highly confusing.
or the
was
Nat’l
the
agreed
trial court
to
jury
reinstruct the
25,900
Passenger Corp.
R.R.
v. One
doing
“without
harm to either side.” The
Land,
Square Foot More or Less Parcel of
Court added:
685,
(2d Cir.1985); Lowe,
766 F.2d
1378;
F.2d at
see Fed.R.Civ.P. 61.
parts.
statutes are in two
One is
[The]
peace
the breach of
statute and the other
A. Probable Cause
threatening
is the
I simply
statute.
call
your attention to the
properly
The trial court
the
fact that the threat-
instructed
ening charge
jury
plain-
was not added until
challenged
at the time of the
tiff was under arrest
“clearly
under
in
threaten-
established” law
added,
Connecticut,
ing charge
lawfully
according
was
the
police
officer could
to
testimony.
for
make warrantless arrest
a misde
“only
meanor
arresting
the
officer
We must determine on appeal
probable
had
to
per
cause
believe
the
whether the district court’s clarification of
committing
son
or
had committed
charge effectively
any
its
confu
removed
presence.”
criminal offense in the officer’s
jurors’
sion from the
minds as to which
54—1f(a);
See Conn.Gen.Stat.
State v. El
§
of
to
principles
apply
they
law
to the facts
liott,
152-53,
153 Conn.
215 A.2d
Inc.,
Lines,
found.
v. Isthmian
Norfleet
(1965). The
then
110-11
court
defined
(2d Cir.1966).
362-63
For the
jury
cause and instructed the
to
purpose
determining
of
of
lawfulness
respect
consider its existence with
to both
arrest, probable
encompasses only
an
cause
charged offenses:
arresting
that information available to the
questions you
So the
have
answer are
prior
including
point
official
of
had
whether Officer
States,
Brinegar
seizure.
United
that Mr. Warren
cause
believe
160, 170-78,
1302, 1308-12,
U.S.
One,
committing
offense of:
(1949).
L.Ed. 1879
two,
peace;
of
the second
at the
to the paddy
referred
transfer
contends that
trial court
threatening
presence.
in
wagon,
his
merely
failed
cure its error and
restated
evidence,
reading
jury,
After
reminded
se
both statutes
explained
jurors
quence
the court further
of events and told the
their
plaintiff
“memory”
was not to determine whether
would control. We
be
actually
agree
plaintiff’s
committed either of these offenses
inclined to
with
conclusion
plaintiffs
superficial reading
but
conduct
on a
“whether
the record.
record, however,
justify
person
sufficient to
a reasonable
entire
reveals that
believing
ground
later clearly
there was reasonable
directed the
to con
arresting
plaintiff
for
for either breach
sider
whether
peace
threatening.” Upon
charge.
of the
for
peace
or
cause
the breach of
asked,
request,
provided it
jury’s
jury,
the court later
When
in a note from the
“a
“copy
wording
copy
pertaining
exact
of the
of the
section ...
to a false
”
liability,”
‘Breach
Peace’
statute.
arrest but no
the court stated:
performing
officials
discre-
of the
Government
preponderance
you
If
find
person-
the defendant Officer
tionary
evidence
functions are shielded
cause
Dwyer did not
liability
as their conduct does
al
“insofar
plaintiff Lamont Warren
believe that the
statutory
clearly established
not violate
committing the
offenses
criminal
rights of which a reasonable
constitutional
end
peace” that does not
of the
“breach
have known.” Harlow
person would
may
defendant
your inquiry....
[The]
800, 818, 102 S.Ct.
Fitzgerald, 457 U.S.
qualified immunity.
be entitled to ...
(1982).
Even
der the combination court, ered reasons, foregoing we affirm the For the Dwyer mis- find that permitted to Officer jury verdict below. judgment on the reasonably concluded takenly but to arrest Warren probable cause there was WINTER, Judge, dissenting: Circuit re- accurately peace. for breach of This the law. flects I respectfully dissent. Indeed, in case particularly where colleagues I vari- agree my with disputé, in serious the factual record is not concerning ous the arrest for instructions immunity separate the may it difficult to reversal, be threatening do not al- warrant from the merits. See Mitchell issue grounds.1 though I on harmless error do so 545, 105 at 2825- 472 U.S. at S.Ct. Forsyth, my colleagues I agree also dissenting (Brennan, concurring part, regarding qualified ultimate decision Bennett, part); Krause v. immunity is for the court. Their defense po (noting a reasonable that whether regard are of course observations have believed lice officer would given to the issue was dicta because for an arrest was also cause existed appears to jury in the instant matter and factor” in “decisive ground jury’s verdict have been the for the result, instructing inquiry). As supra. Note the defendant. See issues seem redundant. on both Nevertheless, affirmed. I judgment believe, rule, is for the court better would reverse. immunity as a decide issue my disagreement is principal area of law, pretrial mo preferably on a matter of qualified immunity over nature of possible, summary judgment when tion for My colleagues perceive it as re- defense. If for a directed verdict. or on a motion issue, name- dundant of issues which are unresolved factual reasonably ly, the officer conclud- whether defense, early disposition of the
prevent an notwith- ed that cause existed spe decide these issues on should standing misperception factual on his de interrogatories. legal The ultimate cial However, although part.2 *7 found, whether, termination on facts qualified immunity issues cause and have police officer should they very overlap factually, are different unlawfully is he acted known implica- legal very different issues with court to decide. law left for the better for the outcome in this case. tions qualified instruction on Accordingly, the qualified immunity inherently purpose The of the immunity not so contra- governmental confusing jury. defense is to shield officials it was dictory that my colleagues’ qualified supplemental if view of its instructions did Even 1. In none of correct, jury judgment immunity court tell the that it rescind- should issue is ing The in- an earlier incorrect instruction. on that be reversed because the instructions inconsistent, re- and I am were thus structions luctant confusing. court’s in- issue were The district jury that the knew that the later infer possibility no reference to the structions made was intended as a correction an instruction earlier one. misperceptions or mistaken conclu- of factual However, jury the fact my colleagues' analy- that are so central to sions qualified immuni- asked for reinstruction on ty Instead, repeatedly it made comments re- sis. probability it re- that in all issue indicates garding legal predictability such as the de- "If probable cause issue in favor of the solved you by preponder- fendant officer convinces jury plaintiff. had been instructed that it evidence that a reasonable officer ance qualified if it not reach the issue need expected to know that such could not been probable that there was cause for the found Constitution, you the U.S. then actions violated following If the court’s arrest. instructions, return a verdict for the defendant.” Giv- therefore, regarding inquiry its case, I do not believe a en record this qualified immunity indicated that it had found rationally implement those instructions could course, Of no cause for the arrest. argued legal predictability party because neither qualified immunity issue that is the to it. importance to resolution of assumes central appeal. liability where their conduct “could fied that accosted him with his hand reasonably have thought been gun consistent on his and thereafter arrested him for rights with the they alleged are to have peace although Warren had violated.” Anderson v. Creighton, 483 done nothing but ask wrong?” “What’s 3034, 3038, U.S. 107 S.Ct. 97 L.Ed.2d going “What is on?”. On the hand, other (1987). appears The issue arise in Dwyer testified that Warren was loud and categories two of cases. In abusive, the first cate ranted and creating raved gory, the conduct of the official impinges enough of a fuss was fearful on a claimed right constitutional but the of a hostile crowd congregating. status right of that is ambiguous under If Warren’s version of the facts is ac- existing law. See Fitzgerald, Harlow v. cepted by fact, the trier of then there cer- 800, 818, 457 U.S. 73 tainly was no cause because War- (1982). L.Ed.2d 396 In catego the second ren had done nothing remotely criminal. ry, right right established—here the Because the law was at the time clear that to be free of arrest absent no cause existed under Warren’s cause—but highly generalized is so that its version, qualified immunity defense application particular factual situations would fail aas matter of law. As to subject to doubt. See Anderson v. Dwyer’s version, if the jury found that Creighton, 107 S.Ct. per at 3038-40. As I Dwyer was reasonable in his evaluation of it, qualified ceive immunity issue in the Warren’s conduct and in believing that that present whether, case is given elasticity conduct lead to the creation of a concept of the cause and the condition, hazardous probable cause for the area of discretion left to the in apply arrest existed. immunity de- ing concept, competent police officer fense would never be reached. would have known Dwyer’s conduct my view, therefore, im- night of the arrest illegal. munity defense was either excluded as a This issue seems preeminently a matter matter of Nevertheless, law irrelevant. for the rather jury. than for the It is the district court instructed the in essence legal whether, decision on the jury on the defense but essentially said basis of the law as it existed at the time of it could find for the defendant on that particular incident, lawfulness accepted defense even if it Warren’s ver- the officer’s conduct reasonably clear of the error, sion facts. That was I or was a matter of doubt. Juries are hard- would therefore reverse. ly suited to make require decisions that an
analysis legal concepts under- standing of the variability inevitable in the
application highly generalized legal prin-
ciples. Moreover, an analysis such seem to invite each jury speculate on the America, UNITED Appellee, STATES of predictability of its own verdict. major A difficulty, course, is that the RUSSO, al., et Defendants. ruling immunity is- Appeal Joseph CORRAO, sue must know what the “Joe facts were that a/k/a Butch”, Defendant. perceived, officer faced or and the find- ing of those facts appears to be a matter No. Docket 89-1503. jury. for the This overlap factual United Appeals, States Court of above, referred to presumably be han- Second Circuit. dled framing special interrogato- Argued April 2, 1990. ries. Decided June
Turning present immunity question entirely resolved de-
pending upon which version facts is accepted. hand, On the one Warren testi-