United States v. JohnstoneUnited States v. Johnstone
- Reporters:
- ,
- Before:
- Becker, Mansmann, Schwarzer
BECKER, Circuit Judge.
This appeal by Ronald Johnstone, a former municipal police officer, in a federal criminal civil rights case,
I. FACTS AND PROCEDURAL HISTORY
Central to a number of Johnstone‘s arguments are the facts underlying the conviction. Of рarticular importance are the timing of the force and the type of force used. Therefore, we will briefly describe each of the instances for which Johnstone was convicted, viewing the evidence presented at trial in the light most favorable to the government.2
A. Austin Burke (Count VII)
On February 14, 1990, Johnstone and a fellow officer stopped two men on the street whom they suspected of car theft. Johnstone seized one of the men, Austin Burke, handcuffed him, and threw him against the hood of the patrol car. Johnstone, who
B. John Blevins (Count IV)
The jury convicted Johnstone for his role in the arrest of John Blevins. On May 14, 1990, Blevins was waiting on a street corner after attending a house party. Johnstone and sevеral other Kearny police officers, responding to a complaint about noise, arrived at the scene. Blevins became disorderly, and one of the other officers started to struggle with him while attempting to place him under arrest. Johnstone observed the struggle and moved in to assist the other officer. After other officers had handcuffed Blevins and forced him to lie on the ground, Johnstone kicked him in the mouth and chest.
C. Peter Sudziarski (Count III)
The jury also convicted Johnstone of employing excessive force against Peter Sudziarski. On September 19, 1990, Johnstone and Poplaski stopped Sudziarski and a friend, who were driving in a stolen car. Sudziarski fled on foot, but was promptly apprehended and handcuffed. His friend evaded apprehension. Immediately after handcuffing Sudziarski, one of the officers (it was not clear whether it was Johnstone or Poplaski) kicked him in the back of the head. Later, upon walking Sudziarski to the patrol car, Johnstone struck him in the head and chest with his flashlight when Sudziarski refused to reveal his accomplice‘s name. Johnstone placed Sudziarski in the
D. Michael Perez (Counts V & VI)
Johnstone was convicted of twice using excessive force against Michael Perez on July 5, 1991. Perez and five friends were returning to Kearny from a Fourth of July celebration in Jersey City when two of his friends got into a fight. When the police arrived at the scene, Johnstone told Perez that he was under arrest, and he and several officers walked Perez to his squad car. Then, while attempting to handcuff Perez, Johnstone struck him on the back of his head with a flashlight.
Perez and Johnstone exchanged words in the patrol car during the trip to the Keаrny police station. Upon arriving at the station house garage, Johnstone pulled Perez out of the car, and beat him, punching and kicking him in the head and on the body. It was disputed at trial whether Perez remained handcuffed at that time.
E. Robert Burden (Count IX)
The last incident occurred on September 1, 1991. Robert Burden came out of a bar and discovered that the police had arrested his son. He tried to glean some information about the arrest from police officers at the scene, but was told by Johnstone to leave. He returned to the bar. Shortly thereafter, Johnstone followed him into the bar. Upon finding him, Johnstone pulled Burden off his bar stool, threw him against a video machine and against the wall, pushed him to the floor, and kicked
The district court exercised jurisdiction over the criminal case pursuant to
II. JURY INSTRUCTIONS REGARDING EXCESSIVE FORCE
We address first Johnstone‘s challenge to the jury instructions regarding excessive force. In reviewing whether a district court in its charge to the jury correctly stated the appropriate legal standard, our review is plenary. See, e.g., United States v. Coyle, 63 F.3d 1239, 1245 (3d Cir. 1995).3 A jury charge must clearly articulate the relevant legal standards. See, e.g., United States v. Schneider, 14 F.3d 876, 881 (3d Cir. 1994). It must, therefore, be structured in such a way as to avoid confusing or misleading the jury. See, e.g., United States v. Messerlian, 832 F.2d 778, 789 (3d Cir. 1987). To ensure that the district court met this requirement, we must examine the charge in its entirety and not limit ourselves to particular sentences or paragraphs in isolation. See, e.g., Coyle, 63 F.3d at 1245.4
In Graham v. Connor, 490 U.S. 386 (1989), the Supreme Court established the constitutional standard that governs claims that excessive force was employed during the course of an arrest. According to the Court, “all claims that law enforcement officers have used excessive force -- deadly or not -- in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amеndment and its ‘reasonableness’ standard, rather than under a ‘substantive due process’ approach.” Id. at 395. The Court held that this Fourth Amendment “‘reasonableness’ inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and
While the Graham Court explained that the Fourth Amendment reasonableness standard governs claims of excessive force during arrest, the Court acknowledged: “Our cases have not resolved the question whether the Fourth Amendment continues to provide individuals with protection against the deliberate use of excessive physical force beyond the point at which arrest ends and pretrial detention begins, and we do not attempt to answer that question today.” Id. at 395 n.10. Nor did the Court in Graham precisely determine the particular point at which the “seizure” ends and the pre-trial detention begins, identifying neither a point in time, nor a place, e.g., the station house, that might suffice. The Court instead relied on its prior cases in which it had defined a “seizure” to occur when law enforcement officials have “by means of physical force or show of authority . . . in some way restrained the liberty of a citizen.” Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968); see also Brower v. County of Inyo, 489 U.S. 593, 597 (1989) (seizure occurs “when there is a governmental termination of freedom of movement through means intentionally applied“).
Johnstone contends that the district court erred in instructing the jury to consider the excessive force claims under the Graham objective reasonableness standard. According to Johnstone, Graham only governs claims that excessive force was carried out during the course of an arrest. Because Sudziarski, Perez, and Blevins were already handcuffed when they were
We disagree. Without deciding where an arrest ends and pretrial detention begins, we conclude, for the reasons that follow, that the excessive force committed by Johnstone took place during the arrests of Sudziarski, Perеz, and Blevins, even if those victims were in handcuffs. Therefore, the district court correctly instructed the jury with a Fourth Amendment objective reasonableness standard. Moreover, we believe that this case is squarely controlled by Graham, as the force at issue in that case took place in a similar factual context.
In Graham, police officers stopped Graham‘s car, suspecting him of criminal activity. Suffering from an insulin reaction, Graham emerged from his car, ran around it twice, sat down on the curb, and then passed out briefly. An officer handcuffed him, and several officers then carried him to the car, placing him face down on the hood. When he regained
We believe that the facts of Graham are nearly identical to those that we face in the case at bar. Leaving aside for a moment the assault on Perez in the station house garage, each of the attacks against Perez and Blevins, and most of the attacks against Sudziarski took place outside the patrol car after the suspects had been handcuffed, just as the force in Graham had been employed. Johnstone also struck Sudziarski with the flashlight in the patrol car, but the placement of a suspect in a squad car does not necessarily signal the end of an arrest. Johnstonе persisted in the same conduct both before and after putting Sudziarski in the car: Johnstone questioned him, and when Sudziarski refused to reveal his accomplice‘s name, Johnstone struck him.
We acknowledge that Johnstone‘s assault on Perez in the police station garage, after he had been transported from the scene of the initial beating, is the most troubling in this regard. That assault was the closest -- both temporally and spatially -- to pre-trial detention at the station house. We
In Groman, we reversed the grant of summary judgment because we found that there were material facts in dispute as to whether the defendants had violated Groman‘s Fourth Amendment right to be free from excessive force. Police officers were called to Groman‘s home because he had apparently suffered a minor stroke. According to Groman, one of the officers struck him in the mouth. After a brief struggle, the officers placed Groman in handcuffs, and then took him to the police car. During the transfer to the squad car, he sustained an injury to his face and lost his dentures. When they arrived at the station, Groman testified, the police officers dragged him from the car feet first, so that his head hit the ground. After picking him up, one of the officers stomped on his toe, allowed him to fall, and an officer jumped on him. Groman, 47 F.3d at 632-33. We believe that the facts of Groman are nearly identical to those surrounding the beating of Perez in the station house garage, and we are thus bound by Groman to find that Perez‘s assault took place during the course of the arrest, even though he had already
United States v. Messerlian, 832 F.2d 778 (3d Cir. 1987), on which Johnstone relies to support his contention that the jury should have been instructed with a Fourteenth Amendment standard, does not undermine this conclusion. In Messerlian, which involved post-handcuffing force employed in the squad car against a drunk-driving suspect, we upheld a conviction where the jury was instructed under a Fourteenth Amendment due process analysis. Id. at 782 & 790 n.20. We find Johnstone‘s reliance on Messerlian to be unpersuasive, for two reasons. First, it was decided before Graham. Since Graham applies to force employed after a suspect is first restrained or handcuffed, Messerlian clearly falls into an area that is controlled by Graham. Thus, the due process jury charge upheld in Messerlian has not survived Graham. Second, although the instructions in Messerlian were clearly grounded on the Fourteenth Amendment, the instructions there did not include the “shocks the conscience” standard, whiсh Johnstone urges us to employ. Rather, the instructions closely resembled the Fourth Amendment objective reasonableness instructions presented to the jury in this case. Id. at 789 (force violates a constitutional right if it is “excessive, unreasonable, and unnecessary“).5
Where the seizure ends and pre-trial detention begins is a difficult question. While it does seem problematic for a constitutional standard to change at some particular moment during an encounter between a citizen and a law enforcement official, as such encounters can be highly volatile, we need not draw this line here, because Johnstone‘s conduct would fall squarely onto the seizure side of any line we would draw. Nor need we decide whether the Fourth Amendment protection against unreasonable seizures extends beyond that line. We therefore conclude that the district court did not err in its jury instructions concerning excessive force.6
Johnstone contends that the jury charge incorrectly defined the intent element of the crime for which the jury ultimately convicted him. In evaluating this contention, we must first set forth the appropriate legal standard. The statute reads, in relevant part, as follows:
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States . . . shall be fined under this title, or imprisoned, . . . or both . . . .
A. The Screws Standard
In the celebrated case of Screws v. United States, 325 U.S. 91 (1945), the Supreme Court had occasion to interpret the meaning of willful in the predecessor statute to § 242.7 It is not enough, the Court noted, for the defendant to exhibit “a bad purpose or evil intent.” Id. at 103; see also id. at 107.8 Instead, the Court declared that willfulness requires “a specific intent to deprive a person of a federal right made definite by decision or other rule of law . . . .” Id. at 103; see also id. at 104. Screws also requires the violation of a particular right. Clearly, the government has alleged such a violation in this case. As we discussed more fully supra, that right is the right to be free from the use of excessive force.
In simpler terms, “willful[]” in § 242 means either particular purpose or reckless disregard. Therefore, it is enough to trigger § 242 liability if it can be proved -- by circumstantial evidence or otherwise -- that a defendant exhibited reckless disregard for a constitutional or federal right. Reckless disregard has different meanings in different contexts.11 In the context of § 242, we have only Screws to
In sum, as is evident from the passages quoted above, Screws is less than satisfying in its attempt to reconcile its internally inconsistent mandates. Unfortunately, any further attempt to explain the appropriate meaning of reckless disregard to a jury would probably either do violence to Screws or inject additional confusion into thе standard that it announces; hence we eschew such explanation. Fortunately, such explanation is unnecessary for, given the Screws standard as it now stands, we easily conclude that the jury charge as to intent was permissible.
B. Validity of the Jury Charge
The relevant language of the charge follows:
The fourth element which the United States must prove
beyond a reasonable doubt is that as to the count under consideration the defendant acted willfully. I instruct you that an act is done willfully if it is done voluntarily and intentionally, and with a specific intent to do something the law forbids, that is, as relevant here, with an intent to violate a protected right. Knowledge and intent exist in the mind. Since it is not possible to look into a person‘s mind to see what went on, you must take into consideration all the facts and circumstances shown by the evidence and determine from all such facts and circumstances whether the requisite knowledge and intent were present at the time in question. Knowledge and intent may be inferred from all the surrounding circumstances. You may infer, for example, that a person ordinarily intends all the natural and probable consequences of an act knowingly done. In other words, you may infer that a defendant intended all the consequences that a person standing in like circumstances and possessing like knowledge should have expected to result from his acts knowingly done.
You are not, of course, required to so infer. It is not necessary for you to find that a defendant was thinking in constitutional terms at the time of the conduct in question. You may find that a defendant acted with the required specific intent even if you find that he had no real familiarity with the Constitution or with the particular constitutional right involved, here the right to be free from the use of unreasonable or excessive force, provided that you find that the defendant intended to accomplish thаt which the constitution forbids. Nor does it matter that a defendant may have also been motivated by hatred, anger or revenge, or some other emotion, provided that the specific intent which I have described to you is present.
We find nothing in the language of the charge that is contrary to the appropriate legal standard of § 242 as interpreted by Screws. Though the charge may not be crystal clear, any confusion is a result of Screws itself and not of the charge. The district court explained the appropriate legal standard, such as it is, as well as that standard could be explained.
Johnstone, however, submits that the district court was
Neither is Dise nor Messerlian on point in this regard, notwithstanding the pronouncement in Dise that a knowing violation of state law demonstrates reckless disregard for constitutional rights, see Dise, 763 F.2d at 592, and the fact that Messerlian approved jury instructions requiring that the defendant knowingly violate state law, see Messerlian, 832 F.2d at 789, 791. Even assuming that state law were relevant, nothing in Dise nor Messerlian requires a knowing violation of state law; they merely “hold that when a person acting under color of state law invades the personal liberty of another, knowing that such invasion is in violation of state law, he has demonstrated bad faith and reckless disregard for constitutional rights.” Dise, 763 F.2d at 592. That holding in no way forecloses the possibility that a defendant has acted in reckless disregard for constitutional rights without knowingly violating state law.
C. Summary
In sum, to convict a defendant under § 242, the government must show that the defendant had the particular purpose of violating a protected right made definite by rule оf law or recklessly disregarded the risk that he would violate such
IV. GUIDELINE ENHANCEMENT FOR USE OF A DANGEROUS WEAPON
We turn finally to Johnstone‘s challenge to the four-point enhancement to his base offense level under § 2A2.2(b)(2)(B) of the Sentencing Guidelines. Our review of the district court‘s interpretation of the Sentencing Guidelines is plenary. United States v. Mobley, 956 F.2d 450, 451-52 (3d Cir. 1992). The court applied this enhancement in connection with the aggravated assaults on Sudziarski and Perez. Johnstone contends that, in so doing, the district court engaged in impermissible double counting. This is so, Johnstone claims, because the district court enhanced his offense level to reflect that “a dangerous weapon was otherwise used,” after it had classified the conduct underlying the convictions as “aggravated assault” within the meaning of § 2A2.2 because the offenses “involved” a dangerous weapon.
Section 2A2.2 provides the framework for calculating the offense levels for aggravated assault. It sets a base offense level of fifteen for aggravated assault, which the comment defines as “a felonious assault that involved . . . a dangerous weapon with intent to do bodily harm.” 1994 U.S.S.G. § 2A2.2, commentary, application note 1.13 Once a court has
Turning to the district court‘s calculation of Johnstone‘s sentence, the guideline for the substantive offense that most closely resembled the conduct underlying Johnstone‘s civil rights conviction, assault, was used to calculate Johnstone‘s base offense level. For the convictions for the assaults on Sudziarski and Perez, the court found that the aggravated assault guideline applied, because a dangerous weapon -- a flashlight -- was “involved” in the offenses. Accordingly, it set the base offense level for those counts at 15. The court then found that the dangerous weapon -- the flashlight -- had been “otherwise used” in the assaults, and increased the offense level by four levels under § 2A2.2(b)(2)(B).
Johnstone contends that the district court engaged in
In other words, Johnstone‘s use of the flashlight was counted twice in calculating his sentence because it was the basis of both the application of the aggravated assault provision and the four-point enhancement. In so arguing, Johnstone relies on United States v. Hudson, 972 F.2d 504 (2d Cir. 1992), and United States v. Hernandez-Fundora, 58 F.3d 802 (2d Cir.), cert. denied, 115 S. Ct. 2288 (1995), in which the Court of Appeals for the Second Circuit held that “while the Sentencing Guidelines provide a logical framework for assaults involving inherently dangerous weapons, the Guidelines proscribe impermissible double counting where it is the use of an ordinary object as dangerous
We disagree, for several reasons. In so doing, we note that we follow the majority of circuits that have considered this issue. See United States v. Dunnaway, 88 F.3d 617, 619 (8th Cir. 1996) (boots and bottle used as weapons); United States v. Sorensen, 58 F.3d 1154, 1160-61 (7th Cir. 1995) (concrete block used as weapon); United States v. Garcia, 34 F.3d 6, 11-12 (1st Cir. 1994) (car used as weapon); United States v. Reese, 2 F.3d 870, 894-96 & n.32 (9th Cir. 1993); United States v. Williams, 954 F.2d 204, 205-08 (4th Cir. 1992) (use of a metal chair); see also United States v. Newman, 982 F.2d 665, 672-75 (1st Cir. 1992) (similar enhancement under § 2A2.2(b)(3) for serious bodily injury held not to be impermissible double counting). The Second Circuit is the only circuit to have held that applying § 2A2.2(b)(3)(B) can constitute double counting.
We begin with the observation that the four-point enhancement where a dangerous weapon is “otherwise used” is not double counting. The aggravated assault provision and the specific enhancements for the relative level of involvement of a dangerous weapon account for different aspects of an assault. The aggravated assault guideline is triggered if the conduct “involved a dangerous weapon with intent to do bodily harm“: the court must apply it if а dangerous weapon was involved in an assault in any capacity so long as the offender had the intent to do serious bodily harm with that weapon. By contrast, the specific offense characteristic enhancements, including the
We are not persuaded that this conclusion is any less true when the weapon is an ordinary object, such as the large flashlight used by Johnstone in the assaults against Sudziarski and Perez. There is no basis in the Guidelines or in the commentary for distinguishing between ordinary objects and inherently dangerous weapons. Moreover, the Guidelines consider a “dangerous weapon” to be “an instrument capable of inflicting death or serious bodily injury.” 1994 U.S.S.G. § 1B1.1, commentary, application note 1(d). Ordinary objects, such as large flashlights, are clearly “capable” of inflicting death or serious bodily injury without being employed, and hence they clearly fall within the definition of aggravated assault even if they are not actually used in the offense. Thus, such an object could be “involved” in an offense, triggering the aggravated assault guideline, even if it is not “otherwise used” in the offense.
But even if the four-level enhancement for the use of a deadly weapon might in some cases, including this one, constitute “double counting,” this double counting is permissible because it
We have held that a court must follow this rule even if it would lead to counting a particular factor twice in calculating a defendant‘s sentence. We addressed the permissibility of double counting under the Guidelines in United States v. Wong, 3 F.3d 667 (3d Cir. 1993). See also United States v. Maurello, 76 F.3d 1304, 1315-16 (3d Cir. 1996). In those cases, we noted that the Sentencing Commission was aware of the potential for double counting inherent in some of the provisions, and that, accordingly, the Guidelines specifically forbid double counting in certain, enumerated circumstances. For example, the commentary to §§ 3A1.1, 3A1.2, and 3A1.3 states explicitly that victim-related enhancements based on certain conduct are not permitted if the applicable offense guideline already accounts for the same conduct. See Wong, 3 F.3d at 670.
Based on this understanding, we held that:
the principle of statutory construction, expressio unius est exclusio alterius applies. Following these principles, we conclude that the exclusion of a double counting provision in the [certain] sections . . . was by design. Accordingly, an adjustment that clearly applies to the conduct of an offense must be imposed unless the Guidelines exclude its applicability.
To hold otherwise would frustrate the structure of the Guidelines and their goal of ensuring the proportionality of federal sentences, as the other circuits that we follow have observed. Implicit in the aggravated assault guideline is the understanding that certain aggravated assaults are more serious than others. In crafting the aggravated assault provision, the Sentencing Commission sought to take different levels of culpability into account: this guideline assumes that defendants are more culpable if they “use” a dangerous weapon in the commission of an offense than if they merely possess that weapon with the intent to do bodily harm. We follow the Fourth Circuit in noting that “[w]e cannot . . . deprive the Sentencing Commission of its authority to assign incrementally higher
In sum, we conclude that the district court properly interpreted Sentencing Guidelines § 2A2.2.
The judgment of the district court will be affirmed.
Notes
Second, Johnstone argues that the district court constructively amended the indictment by charging the jury that the Fourth Amendment objective reasonableness standard governed each count, when the indictment charged him with depriving his victims of their right to due process. He contends that he was denied his Fifth Amendment grand jury right because the district Court “broaden[ed] the possible bases for conviction from that which appeared in the indictment,” United States v. Miller, 471 U.S. 130, 138 (1985), thus effectively trying him on charges fоr which he was not indicted. Again, we disagree. The indictment alleged as to each count that Johnstone deprived the victim of the “right secured and protected by the Constitution and laws of the United States not to be deprived of liberty without due process of law, which includes the right to be secure in his person and free from the use of unreasonable force by one acting under color of law.” We find this language sufficient to charge a violation of the Fourth Amendment as made applicable to the states through the Fourteenth Amendment due process clause, and therefore the notice and double jeopardy functions of the indictment were satisfied. An indictment is constructively amended only when the defendant is deprived of his “substantial right to be tried only on charges presented in an indictment returned by a grand jury.” Miller, 471 U.S. at 140 (quoting Stirone v. United States, 361 U.S. 212, 217 (1960)); see also United States v. Castro, 776 F.2d 1118, 1122-23 (3d Cir. 1985). That has not occurred here. See also United States v. Reese, 2 F.3d 870, 890-91 (9th Cir. 1993) (holding that there was no constructive amendment of indictment in similar case).
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects, or causes to be subjected, any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution and laws of the United States . . . shall be fined . . . or imprisoned . . . or both.
Screws, 325 U.S. at 93. Neither party suggests, nor do we believe, that the slight differences between the predecessor statute and that before us now warrant an interpretation of “willfully” different from that provided it by Screws.
Moreover, reckless disregard often entails some form of indifference. See, e.g., Black‘s Law Dictionary 1270 (6th ed. 1990) (“For conduct to be ‘reckless’ it must be such as to evince disregard of, or indifference to, consequences . . . .“). In common parlance, for an individual to be indifferent, he must not be concerned “one way or the other” about the consequences of his action. Webster‘s Third New International Dictionary 1151 (1966). A requirement that an individual know the consequences of his action is not antithetical to this definition of indifference, but it would introduce an additional element beyond lack of concern.