On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civil Action No. 85-2057.
Seitz, Higginbotham and Cowen, Circuit Judges.
A. LEON HlGGlNBOTHAM, JR., Circuit Judge.
This is an appeal from the judgment entered on behalf of the defendants in an action alleging battery against the City of Philadelphia and an officer of its police force for the excessive use of force in effecting the arrest of the Appellant. Appellant contends that the district court erred in its denial of his motion for a new trial because of several incidents of error in the conduct of the trial, most particularly in the district court's charge to the jury. We have reviewed each of the contentions raised by the Appellant and are unpersuaded that the verdict of the jury, or the judgment entered by the district court in accordance, should be disturbed. Accordingly, we will affirm.
This appeal arises from the action filed by Appellant, Douglas Edwards, against the City of Philadelphia and Philadelphia police officer, James Haworth, for violations of Edwards's federal civil rights and for battery and negligence which, Edwards alleged, resulted from excessive force that Haworth used in arresting Edwards in January, 1983.
Haworth, acting in his capacity as an on duty police officer, was patrolling an area in the twenty-second police district of Philadelphia in the early morning of January 29. At approximately 1:30 a.m. he received a general radio dispatch advising patrol cars in his area that an auto theft had occurred. Haworth proceeded to the street where the stolen vehicle had been spotted and saw Edwards running into an alley one block away. He pursued Edwards into the alley and shouted for him to stop. Edwards stopped running and Haworth, with his revolver drawn, approached him.
The occurrences in the alley immediately following the confrontation are disputed by the parties. Haworth testified that as he pressed Edwards, face forward, against a wall in the alley in order to search him, Edwards pulled a revolver from his right rear pocket and aimed it at Haworth's groin. Appendix ("App.") at 354, 368. At that point, Haworth testified, he shot Edwards.
Edwards testified that Haworth ordered him to put his hands on the wall and he complied. Edwards then testified that Haworth handcuffed him and, despite the fact that Edwards showed no resistance, Haworth "pushed [Edwards's] face into the wall several times . . . [and Haworth's] revolver inexplicably went off while [Edwards] was being slammed into the wall." Appellant's Brief at 2, see also, App. at 117. The bullet struck Edwards in the back and exited through the front part of his body directly beneath his rib cage.
Edwards filed the underlying action alleging that Haworth's conduct was unwarranted and excessive and constituted a violation of Edwards's civil rights.*fn1 The case was tried before a jury which entered a verdict on behalf of the City and Haworth. Edwards challenges the judgment that was entered pursuant to the verdict and asserts several points of error in the district court's conduct of the trial and submission of issues to the jury.
II. Burden of Proof of Excessive Force
Edwards asserts that the district court erred in its instructions to the jury regarding privilege and probable cause. He argues that, although Haworth had a privilege to use force in making a lawful arrest, cf. McKinney v. Whitfield, 237 U.S. App. D.C. 157, 736 F.2d 766, 769 (D.C. Cir. 1984)("physical contact batteries may qualify for absolute immunity when administered by federal security or law enforcement officers whose job it is to maintain order and the public peace"); Restatement (Second) of Torts § 118 (1965)("[t]he use of force against another for the purpose of effecting his arrest and the arrest thereby effected are privileged" if the arrest is lawful and the force used is not excessive), he had the burden of demonstrating that the force that he used to effect the arrest was reasonable. Edwards argues that Haworth's assertion of the privilege to use force in making an arrest is an affirmative defense to the tort of battery that underlies the § 1983 claim and, as with other affirmative defenses, the burden of proving that defense is on the party who invokes it. Edwards contends, therefore, that "[t]he burden is upon the defendant to prove that the force was reasonably necessary and the arrest was valid." Appellant's Brief at 10.
In his argument to the district court, it appears that Edwards contended that the burden of demonstrating the reasonableness of the force used was intertwined with the demonstration of probable cause and that each were elements of an affirmative defense for which Haworth had the burden of ...