USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 94-1210

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.
____________________

No. 94-1272

SHARON L. PARKER,

Plaintiff, Appellant,

v.

CITY OF NASHUA, NEW HAMPSHIRE, ET AL.,

Defendants, Appellees.
____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Shane Devine, Senior U.S. District Judge]

__________________________

____________________

Before

Selya, Circuit Judge,

_____________

Bownes, Senior Circuit Judge,

____________________

and Boudin, Circuit Judge.

_____________

____________________

Thomas Quarles, Jr. and

_____________________

Dyana J. Crahan with

_________________

whom

Robert
______

McDaniel
________

and Devine, Millimet & Branch, P.A.

__________________________________

were on

briefs

defendants.
Francis G. Murphy, Jr. with
________________________
Johnston,
________

whom

Joseph F. Keefe,
________________

Kathryn
_______

and Hall, Hess, Kenison, Stewart, Murphy & Keefe, P.A. w

__________________________________________________

on briefs for plaintiff.

____________________

February 5, 1996
____________________

BOUDIN, Circuit Judge.

______________

Parker

an arrest.

presented, and

is

On

had violated her rights in

this

appeal,

almost

the

the course

only

issue

certainly the only one warranting discussion,

a claim that the

the jury

court, Sharon

was awarded substantial damages by a jury which found

that a police officer

of

In the district

the state

district court erred

disorderly conduct

in describing for

statute used by

police officer to justify Parker's arrest.

the

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

six

a dance at the local Moose Club.

passengers in the car:

parents,

her

sister,

and

There were

Parker and her husband, Parker's

her

sister's

companion owned and drove the vehicle.

affecting the left side of her body;

companion.

The

Parker has a disorder

and for this reason she

does not drink alcohol.

When the car reached

entered

their own car,

house prior

the house, Parker and

which had been left

to the dance.

At that

her husband

in front of the

point a police

cruiser

driven by officer

car and flashed its

James Lima pulled

light.

up behind the

Parkers'

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

-3-3-

parents.

The

officer later testified

that he thought

that

the car's

driver had

unclear whether the

committed traffic violations.

officer confused the two

It

is

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

begins

this

to

point, the

diverge sharply

companions.

pressed a button

sister's

that

of what

of

calling for

The

buffeted.

companion were

Parker

continued

Ultimately, the

arrested.

and

companion.

emergency backup.

struggle

occurred

her

assaulted by Parker's

sister, and the sister's

arrived.

husband was

from

version

According to Lima, he was

husband, Parker's

officers

police

Two

and

Lima

other

Parker's

husband, sister, and

By this

parents and others had come out to the scene.

time, Parker's

Additional

Sheehan, who

police

arrived,

eventually

including

arrested Parker

Officer

herself.

Frank

Officer

Sheehan's later testimony was that he saw

Parker standing in

the road

using obscenities.

He

yelling at

the other officers,

told her to quiet down and

Sheehan,

eventually

continued

to yell.

Parker

At

leave the road.

moved

to

the

that point Sheehan

According to

sidewalk

but

said he arrested

Parker for disorderly conduct.

Parker's description

her own later

claimed

of events is quite

testimony, she

denied being in

different.

In

the road

and

to have said to Officer Sheehan only that she wanted

-4-4-

to go

to the police

arrested.

station with her husband

Sheehan, she

declaring

that

the

says, responded with

police car

was

not

testified that

she simply turned away and

house,

to

saying

her

who was being

mother

that

this

an obscenity,

taxi.

Parker

walked toward the

was

"the

most

unbelievable thing I've ever seen."

In

all

resistance.

events,

She

Parker

was

later offered

handcuffed,

offering

medical testimony

no

that her

shoulder and upper arm, already susceptible to injury because

of

her

medical

handcuffing.

that she

condition,

were

wrenched

the

Then, en route to the police cruiser, she says

was pulled or

tugged by the handcuffs

fell on the ground and was then dragged by the

snow bank.

during

so that she

police over a

The police version is that this was an accidental

fall.

Parker was

conduct.

The

arrested

for and

charges

were

authorities.

In due

in

court against

district

Police Department

Her federal

and

charged

eventually

with

disorderly

dropped

course, she brought the present

the City

of Nashua,

various officers

claim under 42

U.S.C.

1983

including

by

the

action

the Nashua

Sheehan.

was based on

her

rights under the Fourth and Fourteenth Amendments to be

from

unreasonable

claims

seizure.

She

also

asserted state

based on her allegedly unlawful arrest.

free

law

The case was

tried before a jury in January and February 1994.

-5-5-

At

the

trial,

Parker

and the

police

offered

their

respective

versions

of

Parker,

what

testimony

from

witnesses

on both sides who

had

Sheehan

happened.

and

There

number

had been present

of

was

other

at the scene.

Parker, who was a government social worker, proffered medical

and economic evidence to support a very substantial

damages.

against

The

jury

returned a

Sheehan (although

specially that

large

verdict

smaller than

Parker's rights under both

for

award of

Parker

requested), finding

federal and state

law had been infringed.

On this

appeal, defendants'

district court erred

central claim is

in failing to charge

the jury properly

as to the offense for which Parker was arrested.

of

that the

The premise

Parker's claim was that she had been arrested even though

the

police lacked

committed

or was

DeFillippo,
__________

police

found

probable

cause to

committing an

443 U.S. 31, 36

to

be

the

facts--more

perception of police as

offense.

(1979).

had probable cause, the

believe that

To

See
___

she had

Michigan v.
________

decide whether the

jury had to

match what they

accurately,

the

reasonable

to those facts--against the elements

of the offense.

The New Hampshire disorderly conduct

Stat.

Ann.

644:2,

comprises

the

statute, N.H. Rev.

misdemeanor

offense

labelled disorderly conduct; but the statute, reprinted in an

appendix to

this opinion,

describes nine different

-6-6-

ways of

committing

spaced

the

text.

offense and

Several

of

covers over

the

of single-

offenses

described in

the

to the

police version

of

statute

were arguably

pertinent

events;

others--e.g.,
____

interference

operation or obstructing the

a page

with

firefighting

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

have committed

fell under

conduct statute.

section III(a) of

That provision is

purposely causes a

deemed Parker to

the disorderly

directed at anyone

breach of the peace, annoyance

or reckless

risk of

these consequences,

unreasonable

noises

testimony at

trial emphasized the

in

public

by making

location.

loud noises that

who

or alarm,

loud or

Sheehan's

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

transcript

(e.g., the
____

provided by defendants.

their case, because parts of

closing

statements)

have

not

the

been

But it is clear that when it came to

charging

asked

the jury,

in its

requests to

charge

the judge to read almost all of the disorderly conduct

statute to the jury.

the

the defense

loud noise

The trial judge confined

offense

described in

-7-7-

his charge to

section III(a).

The

court's refusal to

charge more

broadly is

now assigned

as

error.

We will assume for purposes

was entitled at trial

any

provision of

evidence

to justify his arrest of

the

disorderly conduct

statute that

the

evidence from the police witnesses to suggest

Parker used obscenities

lawful police

order; it is

showed any obstruction of

jury

Parker under

at trial might show to have applied to her conduct.

There was some

that

of this appeal that Sheehan

be instructed

as

and refused

to comply

more doubtful that

traffic.

to

at

the evidence

Thus a request

least

two

of

with a

that the

these

other

Civ.

P. 51

disorderly conduct offenses was arguably proper.1

An

initial

difficulty

is

that

Fed.

R.

provides

that "[n]o

failure

to give

an

thereto

before the

party may

assign as

instruction unless

jury

retires to

error .

that party

objection."

be told precisely
_________

what

verdict,

the grounds of

Further, to satisfy Rule 51 "the judge must

what the problem

is, and as

importantly,

the attorney would consider a satisfactory cure."

v. Andover Newton Theological School, Inc.,

_________________________________________

(1st

the

objects

consider its

stating distinctly the matter objected to and

the

. .

Cir. 1989).

And the

lawyer

874 F.2d

must propose

Linn
____

1, 5

lawful

____________________

1We say "arguably" because the problem

arrest on grounds not invoked at
complicated
officers.

of justifying an

the time becomes especially

where some of the facts were known only to other

See generally 2
_____________

3.5(c) (2d ed. 1987); id.

W. LaFave, Search and Seizure

___________________
5.1(e).

___

-8-8-

instruction

or

overstates

the

correction, and

law

in

that

not one

party's

that substantially

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

When

the court said that

violating

disorderly conduct

section

statute" to

Parker had been

III(a)

and

the jury.

charged only with

"[n]obody

claims

she

was

violating the rest of it," defense counsel responded:

We adduced testimony in evidence that she

violated

that

declining

to

section
comply

where
with a

order of a police officer,

is

toward

the

end of

the

she

was

reasonable

which I think
substantive

sections of it.

The

trial judge

said

(presumably referring

that

he

did

not

think

to the evidence) would

that

"it"

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

tender a legally correct instruction.

jury

and so

failed to

This requirement is no

formality:

the trial court, especially in hearing objections

after the instructions have been given, is making on-the-spot

choices;

and when the

instruction offered by

manifestly overbroad, the district

assuming the burden

portion

that may

of editing

be viable.

judge may reject

it down to

Chase v.
_____

Corp., 744 F.2d 566, 570 (7th Cir. 1984).

_____

-9-9-

the lawyer is

save some

without

small

Consolidated Foods
__________________

Certainly

in this

court read to the

case

the defense

jury almost all of the

statute was properly denied.

request that

the

disorderly conduct

A number of the offenses listed

had no possible relevance to the case.

On appeal, defendants

make

To allow the

no attempt

to show

otherwise.

jury to

wander aimlessly among the various paragraphs would have been

an invitation to confusion

reading

to

the jury

in a

and would be no more

criminal

case a

proper than

description of

offenses with which the defendant was not charged.

The

story of

During jury

the

requested instruction

deliberations, the

jury

is not

submitted a

over.

question,

"Can we got a copy of the disorderly conduct

constitutes this violation."

again

stated

asserting

that

that

the

the

existed

believe

the

that

disorderly

jury.

entire

for

statute

for

the

on

committed

The court

should

jury

the officer

plaintiff

conduct."

statute, and

At this point, defense counsel

question

probable cause

law; i.e., what

the

was

the

Your Honor, we simply object to the Court

the

statute

disorderly

conduct

could reasonably
conduct

was

sections of
engaging

the circumstances

where a

person
or

officer

believe that disorderly

especially

the statute which

in

in

can commit

when an

committed,

tumultuous

scene

to

of

the whole

instruction to the

Defense counsel then objected:

not describing all

read,

"whether

offense

refused to read

instead reread its original

be

the

relate to

behavior

or

knowingly

refusing

lawful order of

to

comply with

a peace officer to

the
move

-10-10-

from any public place, which by itself is

enough, or directing obscene
obstructing

vehicular

or

language or
pedestrian

traffic on the street, all of which there

is testimony on.

This court

has not

decided whether an

initial request

for

an

instruction,

resurrected

by

reinstructed.

jury during

not

proper

properly

request

presented,

made

when

can

be

the jury

is

Surely when a new instruction is given to the

___

its deliberations,

a new opportunity

exists to

object or propose changes; but few cases address what happens

when the jury is simply given

the original instruction again

and

an

the

lawyer

now

makes

alternative, that was not

objection,

or

seeks

properly presented before.

an

Wright

& Miller treat the reread instruction as reopening the matter

entirely, but the case law is sparse, and we are less certain

that any

C.

blanket rule governs.

See
___

generally 9 A. Wright &

_________

Miller, Federal Practice and Procedure

________________________________

(1995).

2553,

at 516

In all events, the new request made here at the time

rereading repeated
________

entire

of

the original unjustified request that the

disorderly conduct statute be read to the jury.

This

time defense counsel enlarged the number of specific offenses

for

which

he

referring to

order, making

of which [he

claimed

to

find

in

the evidence,

tumultuous behavior, refusing to

obey a lawful

obscene remarks and

support

obstructing traffic--"all

said] there is testimony on."

-11-11-

But once again,

the

request that the entire

statute be read

is far broader

than anything to which counsel was entitled.

It

is

possible,

defense counsel's

with

great

generosity,

oral objections--both

original instruction

to construe

at the time

of the

and at its rereading--as an alternative

request to charge the jury only as to the specific disorderly

conduct provisions

evidence

alone,

for which

(e.g., refusal to
____

this would

obligation to

not

the defense claimed

obey a lawful

be enough

because

communicate clearly with the

there was

order).

Standing

it is

counsel's

judge in seeking

instructions, Scarfo,
______

was

far from

clear.

indication that

54 F.3d at 947,

On

the trial

the

and counsel's request

other hand,

there was

judge did consider

some

whether other

portions of the disorderly conduct statute should be read and

thus was not entirely misled by the garbled objection.

Even if

instruction as

we

treated

the request

properly preserved

for

more

(and this is

limited

a stretch),

the failure to give the more limited instruction was patently

harmless

in

this

case.

v.

International
_____________

Broadcasters, 50 F.3d 67, 71 (1st Cir. 1995).

____________

Our reason is

not lack of evidence.

judge's doubts on

Vera-Lozano
___________

Although we can understand

this point, Sheehan

can make a

the trial

colorable

claim that

even his

own testimony supported

that Parker yelled obscenities,

of the street, or both.

the conclusion

refused to move promptly out

When one adds fragments of consonant

-12-12-

testimony

from

provisions of

other

the

officers,

there

disorderly conduct

are

statute

at

least

under

two

which

Parker could have been charged, apart from excessive noise.

What persuades us that the error (if any) is harmless is

this:

Parker on

the one hand

and the police

on the other

gave coherent but directly conflicting versions of the events

relating to Parker.

Sheehan,

Parker

used

with some

had been

Those

versions were each

support from

standing in

of a

other officers,

the street yelling

piece:

said that

at police,

swear words, and did not promptly obey an order to move

onto the sidewalk

and shut up.

Parker's

version, supported

by

other witnesses, is that she had been standing behind one

of

the parked cars, had

nothing

more than

make a

caused no disturbance

properly phrased

and had done

request to

the

officer to accompany her husband.

The jury

heard all

this testimony from

the witnesses,

and

us

obviously accepted Parker's version of events.

inconceivable

that

the

jury would

have

decided

conflict of fact in favor of the defense if only

____

told that several other

might also

accepted.

main

Parker's standing in the

to

get

her

ancillary.

to stop;

this

it had been

provisions of the disorderly conduct

have been violated

The

It is to

thrust

if the police

testimony were

of

testimony

Sheehan's

was

street yelling, despite his efforts

the

other

violations

were at

best

There is no plausible way that this jury, having

-13-13-

rejected the essence of the police

nevertheless

have

found

in

testimony, would or could

Sheehan's

favor

based

on

slightly fuller account of what the statute provided.

Our conclusion is not

as

to what the evidence

based on any judgment of

proved to have

happened.

our own

Although

Parker's brief portrays the police engaged in something close

to a police

riot, there

is some indication

that others

in

Parker's party may have been at least partly at fault for the

disturbance.

But

the

evidence was

certainly adequate

to

support

the jury verdict in favor of Parker on her own claim

of wrongful arrest, and

omission

of

more

the verdict was not affected

complete

instruction

on

by the

disorderly

conduct.

The defense brief also

erred in failing to

state-law

claims

contends that the district court

give an instruction, in relation

made

by

Parker,

privileged to use reasonable

to

officers

or

the

that

the

to the

police

were

force to prevent perceived harm

public.

Although

the

privilege

instruction was requested by the defense, no proper objection

to

its omission was made

charge

and

instance, the

omitted

the

after the district

requested

court gave its

paragraph.

failure to object properly

In

this

is beyond dispute.

The

omitted instruction

justice, so

there is

did not

no basis

lead to

a miscarriage

for a claim

of plain

of

error

under United States v. Olano, 507 U.S. 725 (1993).

_____________
_____

-14-14-

Defendants have urged, contingently, that

they

request should

be limited

to

liability.

the new trial

Parker has

filed a contingent cross appeal urging that in any new trial,

she should be allowed to introduce additional evidence in her

favor--e.g., that the police sought

____

her--which

the

to obtain a release from

the district court did not permit her to offer in

original trial.

Because we affirm the judgment in favor

of Parker, these contingent requests need not be reached.

Affirmed.
________

-15-

-15-

APPENDIX

RSA 644:2 Disorderly Conduct.

RSA 644:2 Disorderly Conduct.

A person is guilty of

disorderly conduct if:

I.

He knowingly or purposely creates a condition

is hazardous to himself

or another in a public

which

place by any

action which serves no legitimate purpose; or

II.
(a)

He:
Engages in fighting or in violent, tumultuous or

threatening behavior in a public place; or

(b) Directs at another person in a public place obscene,
derisive, or

offensive words which

are likely to

provoke a

violent reaction on the part of an ordinary person; or

(c)
public

Obstructs vehicular
street or

sidewalk

or pedestrian
or the

traffic

on any

to any

public

entrance

building; or
(d)

Engages

substantially

in

conduct

in

interferes with

public

place

which

criminal investigation,

firefighting operation to which RSA 154:17 is applicable, the

provision of emergency medical treatment, or the provision of
other

emergency

services

when

traffic

or

pedestrian

management is required; or
(e) Knowingly refused to comply with a lawful order of a
peace officer to move from any public place; or
III.

He purposely causes a breach of the peace, public

inconvenience,

annoyance or

alarm, or recklessly

creates a

risk thereof, by:

(a)

Making

place, or

loud or

making loud

place which can

places,

which

unreasonable

or unreasonable

noises

noises in a

be heard in a public place

noises

would

disturb a

in a

public
private

or other private

person

of

average

sensibilities; or
(b) Disrupting

the orderly

conduct of business

in any

public or governmental facility; or

(c) Disrupting any lawful assembly or meeting of persons
without lawful authority.
IV.

In this section:

(a) "Lawful order: means:

(1)

A command issued to any person for the purpose

of preventing said person from

committing any

offense set
section of

forth in this section,

Title LXII or Title

or in any

XXI, when the

officer has reasonable grounds to believe that

said

person

offense, or
course

is

about

to

commit

when said person is

of conduct which

any

such

engaged in a

makes his commission

of such an offense imminent; or

(2)

command issued

from

continuing

forth in

to any
to

commit

this section,

Title LXII or Title

person to
any

or in any

stop him

offense set
section of

XXI, when the officer has

reasonable grounds to believe that said person

is

presently

engaged

in

constitutes any such offense.

conduct

which

(b)

"Public place" means any

or

substantial

includes,
sidewalks,

but

is

group
not

place to which the public

has access.
limited

schools, hospitals,

or facilities,

and

the

lobbies

to,

The

term

public ways,

government offices
or

hallways

of

apartment buildings, dormitories, hotels or motels.

V.

Disorderly conduct is a misdemeanor if the offense

continues after a request by any person to desist; otherwise,

it is a violation.

-17-

-17-