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Alsaker v. DuPaul: US District Court : JURY INSTRUCTIONS | 1983 - jury instructions in section 1983 'excessive force' trial; related to assault, battery law

William Gordon Alsaker, an individual, Civil No. 06-164 (DWF/AJB)
Lance DuPaul, Dustin DuPre,
Michael Johnson, and
Jared Roettjer,
Charles E. Bethel, II, Esq., and John R. Grieme, Esq., Bethel & Associates, PA;
Charles F. Clipper, III, Esq., Caplan Law Firm; Jill M. Waite, Esq., Waite Law Office;
and Jill Clark, Esq., Jill Clark, PA, counsel for Plaintiff.
James A. Moore and Tracey N. Fussy, Assistant City Attorneys, Minneapolis City
Attorneys Office, counsel for Defendants.
This matter is before the Court pursuant to a motion for a new trial pursuant to
Rule 59 of the Federal Rules of Civil Procedure brought by Plaintiff William Gordon
Alsaker. Defendant opposes Plaintiffs motion.
Based upon the presentations and submissions of counsel, the Court having
reviewed the contents of the file and evidence in this case, and the Court being otherwise
duly advised in the premises, the Court hereby enters the following:
1. Plaintiffs motion for a new trial pursuant to Rule 59 of the Federal Rules of
Civil Procedure (Doc. No. 76) is DENIED.
Dated: February 26, 2009 s/Donovan W. Frank
Judge of United States District Court
I. Introduction
The trial in this matter commenced on October 20, 2008, and concluded with the
return of the jurys verdict on October 28, 2008. The matter was submitted to the jury on
the issue of use of excessive force by Defendant Officers Lance DuPaul, Dustin DuPre,
Michael Johnson, and Jared Roettjer. The jury returned their verdict on October 28,
2008, for the Defendants, finding that the officers had not used excessive force.
At trial, Plaintiff proceeded on the claims of assault, battery, and excessive use of
force. At the pretrial conference, and then again at the charge conference, the Court and
counsel discussed the legal appropriateness and the issues surrounding submitting a
so-called unified charge to the jury on the issue of the excessive use of force. Plaintiff
requested that assault, battery, and the 42 U.S.C. 1983 claim be submitted to the jury,
but the Court submitted only the 1983 claim.
II. Discussion
The following statement, entitled Joint Statement of the Case was submitted by
the parties and to the jury three times: during jury selection, during the preliminary
instructions of the Court, and in the final instructions of the Court. This joint statement
read as follows and is part of the record:
Plaintiff alleges that he was subjected to unconstitutionally excessive
force, assault and battery by the Defendant police officers during the course
of his arrest and detention on January 10, 2004. Plaintiff alleges that
Defendant officers punched him and kicked him in the face after he had
been subdued and handcuffed, and that while handcuffed he was also
thrown face first against a squad car.
Defendants deny that they subjected Plaintiff to excessive force and
maintain that Plaintiffs injuries were sustained when he fell on two
separate occasions. Defendants maintain that Plaintiff first fell as he fled
from his still-moving vehicle after being pulled over by the police and that
he fell a second time after he was detained and in handcuffs when the
Plaintiff and the officers escorting him slipped and fell to the ice.
Defendants deny that they used any excessive force in arresting or detaining
As pointed out by Justice Wahl in Paradise v. City of Minneapolis, 297 N.W.2d
152 (Minn. 1980), the essence of that plaintiffs complaint, much like the case before the
Court, was whether there was a basis upon which a jury could conclude that the law
enforcement officers used more force than was necessary in arresting and detaining the
Plaintiff. Thus, in Paradise, like the instant case, while assault was alleged, the central
issue in the case was not the intent of the officers, but Plaintiffs claim that the officers
used excessive force.
Here, Plaintiff asserts that the Courts failure to submit jury instructions on the
assault and battery charge left the jury confused about why part of the case was submitted
to them. In addition, Plaintiff contends that the jury instructions, particularly the
instructions on excessive force, left the jury confused as to what verdict to reach because
Plaintiff alleged that the police conduct was intentional.
Consistent with 8th Cir. Civil Jury Instr. 4.10 (2005), the Court instructed the jury
as follows: The jury must consider whether the officers actions are reasonable in light
of the facts and circumstances confronting the officer, without regard to the officers state
of mind, intention, or motivation. Graham v. OConnor, 490 U.S. 386 (1989); see also
Cole v. Bone, 993 F.2d 1328, 1333 (8th Cir. 1993) (quoting Graham in holding that the
officers subjective intent was irrelevant because [i]n excessive force cases the question
is whether the [officers] actions are objectively reasonable in light of the facts and
circumstances confronting [him], without regard to [his] underlying intent or
motivation). Plaintiff asserts that the Court did not properly instruct the jury because
the assault and battery issue was not accurately covered by the instructions regarding the
use of excessive force. Further, Plaintiff contends that by failing to instruct on the counts
of assault and battery, the Court failed to instruct on Plaintiffs theory of the case.
Defendants, for their part, assert that because only the excessive use of force by a
law enforcement officer can constitute a battery, if a jury concludes that any force used
was reasonable, there can be no battery. Consequently, Defendants contend that when the
jury found that the law enforcement officers did not use excessive force, the jury
necessarily ruled out the possibility that the officers had committed an assault and battery
on the Plaintiff.
The record establishes that the jury was properly instructed, that Plaintiff received
a fair trial in this case from a fair and impartial jury, and that the verdict is not against the
great weight of the evidence. There was no miscarriage of justice in this case. Harris v.
Secretary, United States Dept. of Army, 119 F.3d 1313 (8th Cir. 1997); 8th Cir. Civil Jury
Instr. 4.10 (2005).
As noted appropriately by Wright and Miller Federal Practice and Procedure:
Civil 3d 2556, [i]t is the inescapable duty of the trial judge to instruct the jurors, fully
and correctly, on the law applicable to the case, and to guide, direct, and assist them
toward an intelligent understanding of the legal and factual issues involved in their search
for a proper resolution of the dispute. See also Margolies v. McCleary Inc., 447 F.3d
1115 (8th Cir. 2006); Agape Baptist Church Inc. v. Church Mut. Ins. Co., 299 F.3d 701
(8th Cir. 2002). Moreover, it is the trial judges responsibility to properly instruct the jury
even when there has been no request for a specific instruction on a particular issue.
Wright & Miller Federal Practice and Procedure: Civil 3d 2556.
A party is entitled to a specific instruction on their theory of the case if it is
supported by applicable law and there exists a factual basis in the record to submit it.
Wright & Miller Federal Practice and Procedure: Civil 3d 2556, quoting Margolies,
supra; Agape Baptist Church, supra. General, abstract, or so-called boilerplate charges
are not favored by the federal courts. Moreover, even model jury instruction guides
should not be blindly followed without regard to the specific facts of the case, including a
partys theory of the case, if there exists a factual foundation and legal basis to so instruct
on that partys theory. Contrary to Plaintiffs position taken at trial and stated in his
post-trial briefing, Plaintiffs theory of the case was adequately and fairly addressed when
the Court submitted the issue of excessive use of force to the jury. The Courts so-called
unified charge to the jury in submitting the elements of the excessive use of force did
not mislead the jury.
As explained in Paradise, a battery is defined as an intentional, unpermitted,
offensive contact with another. 297 N.W.2d at 155. In Paradise, the essence of the
plaintiffs complaint, much like the case before the Court, was based upon the physical
contact between the officers and the plaintiff. Stated another way, it was whether that
physical contact constituted the excessive use of force. Here, Plaintiff did not try the case
based upon an allegation that he sustained damages from an intent by the officers to cause
apprehension or fear of offensive contact or on a theory that he might be touched. Rather,
the focus by the Plaintiff, and appropriately so, was on the actual physical contact and
Plaintiffs assertion that the officers contact was intentional. A battery occurs if it is
proved that a defendant intentionally caused harmful or offensive contact with the
plaintiff. See CIVJIG 60.25. A civil assault is defined as an act with intent to cause
apprehension or fear of immediate offensive contact with plaintiff or an unlawful threat to
do bodily harm or engage in offensive contact. Dahlin v. Frasier, 288 N.W. 851, 852
(Minn. 1939).
Again, as noted in Paradise, an arrest is made by the actual restraint of the person
of the defendant or by his submission to the custody of the officer; but a person shall not
be subjected to any more restraint than shall be necessary for his arrest and detention.
Minn. Stat. 609.06(1)(a). Thus, if an officer used excessive force, the officers touching
of a plaintiff would be unpermitted and therefore constitute a battery. Paradise, 297
N.W.2d at 155.
The United States Supreme Court clearly stated in Graham that in a Fourth
Amendment context, [t]he 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 circumstances confronting them, without regard to their underlying
intent or motivation. 490 U.S. 386. Consequently, [a]n officers evil intentions will
not make a Fourth Amendment violation out of an objectively reasonable use of force;
nor will an officers good intentions make an objectively unreasonable use of force
constitutional. Id. at 397 (quoting Scott v. United States, 436 U.S. 128, 138 (1978)).
Therefore, subjective concepts like intent, malice, and ill will have no appropriate place in
a Fourth Amendment inquiry involving an allegation of excessive use of force. See also
Cole, supra, quoting Graham, supra (holding that an appropriate Fourth Amendment
inquiry is one of whether the officers actions were objectively reasonable).
III. Conclusion
The jury instructions in this case provided the jury with a clear and concise
statement of the law as applied to the facts of the case, while also encompassing
1 It is interesting to note the damage question proposed by Plaintiff.
REQUESTED INSTRUCTION NO. 22, the only damage question submitted by Plaintiff
for all three claims, read as follows: Damages - Unreasonable Force or Restraint - In
answering the Special Verdict Form, if you find that Plaintiff is entitled to recover
damages because Defendants used unreasonable force, then you should allow the Plaintiff
such damages as a result from the use of force in excess of what was reasonably
necessary. Plaintiffs proposed Special Verdict Form read in the same manner, without
distinguishing between assault, battery, and the excessive use of force claim as to the
issue of damages. See Plaintiffs Proposed Special Verdict Form, Question No. 13. It
should also be noted that the Court did not reach the issue as to whether there was a
factual foundation to submit the assault charge to the jury had the case been before the
Court on assault and battery, as in Paradise, without the excessive use of force claim.
Plaintiffs theory of the case. The record does not support the notion that the jury was
confused or that the Plaintiff was not permitted to argue fully and zealously his theory of
the case. The evidentiary irony of this circumstance is that with the instructions the Court
provided, the Plaintiff did not have to prove ill will or intent to harm, but, rather, that the
force used was excessive because it was not reasonably necessary to arrest Plaintiff, take
the Plaintiff into custody, or otherwise detain him. Given the law announced in Paradise,
Graham, and Cole, just to name three cases, it would have been error for the Court, based
upon the facts of this case, to submit the intentional torts of assault and battery to the jury.
The Court does not reach the issue as to how it would have dealt with the issue of
duplicity or confusion of arriving at damages in the event a separate instruction on battery
would have been submitted to the jury.1
Finally, contrary to the view asserted by the Plaintiff, it is always the trial judges
obligation to properly instruct the jury based upon the Courts understanding of the law
and the facts of the case before it, and irrespective of whether the parties have stipulated
to a set of instructions, or whether one party has moved the Court to instruct the jury in a
particular way, or whether one party is opposed to instructing a jury in a particular way.
It does not place the trial judge in the role of advocate, but, rather it simply means that the
trial judges duty is to instruct a jury fully, fairly, and correctly. That duty does not vary
from trial to trial based upon the positions of the parties or their request for jury
For all of these reasons, the Court has respectfully denied Plaintiffs motion for a
new trial.


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