Clem v. Corbeau ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ROBERT CLEM, 
Plaintiff-Appellant,
v.
S. CORBEAU,
Defendant-Appellee,
and
COUNTY OF FAIRFAX, VIRGINIA; J.
 No. 03-1831
THOMAS MANGER, individually and
as Chief of Police of Fairfax
County; E. NELSON, individually and
as Police Officer of Fairfax County,
VA,
Defendants.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonard D. Wexler, Senior District Judge.
(CA-00-1684-A)
Argued: February 25, 2004
Decided: April 29, 2004
Before MOTZ, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Brien Anthony Roche, JOHNSON & ROCHE, McLean,
Virginia, for Appellant. Cynthia Lee Tianti, Assistant County Attor-
2 CLEM v. CORBEAU
ney, COUNTY ATTORNEY’S OFFICE FOR THE COUNTY OF
FAIRFAX, Fairfax, Virginia, for Appellee. ON BRIEF: Eric David
Kessel, JOHNSON & ROCHE, McLean, Virginia, for Appellant.
David P. Bobzien, County Attorney, Peter D. Andreoli, Jr., Deputy
County Attorney, COUNTY ATTORNEY’S OFFICE FOR THE
COUNTY OF FAIRFAX, Fairfax, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Robert Clem brought this excessive force suit against Shannon
Corbeau, a Virginia police officer. A jury found for Corbeau and
Clem appeals. Finding no reversible error, we affirm.
I.
On November 9, 1998, Corbeau and fellow police officer Eric Nel-
son were dispatched to Clem’s home in response to a 911 call from
Clem’s wife. She related that Clem had refused to eat, take his medi-
cation, or go to his medical appointments, and was urinating on him-
self and dropping lit cigarettes on the carpet. Officer Corbeau testified
that on his way to Clem’s house, another officer, who had been to the
Clem home on a similar call five weeks earlier, radioed that Clem had
threatened his wife with a knife on that prior occasion.
Officers Corbeau and Nelson arrived at the Clem home simulta-
neously and were greeted at the door by Clem’s nephew, Paulos
Yacob, who brought the officers into the breakfast area, where Clem
was seated. Corbeau and Nelson both observed that Clem appeared
to be mentally ill, looking "out of it" and "not making any sense."
The officers attempted to persuade Clem to go see his doctor. At
first, Clem seemed open to the suggestion, but suddenly his mood
CLEM v. CORBEAU 3
changed and he became "agitated." Yacob testified that Clem patted
his pant leg and said, "[m]other-fucker, son of a bitch, you think I’m
afraid of you because of your badge." Corbeau and Nelson reported
that Clem said something to the effect of, "I have something better
than what you have on your belt," and patted his pants leg. Clem then
stood up and began "charging" Corbeau. According to Corbeau, Clem
threatened to kill him, as he was charging. After Clem ignored Cor-
beau’s warnings to "get back," Corbeau sprayed Clem with pepper
spray.
Although the pepper spray stopped Clem’s approach, it also
adversely affected the others present in the room. Mrs. Clem and
Yacob went to the bathroom to wash the pepper spray out of Mrs.
Clem’s eyes. Nelson stepped outside to spit the taste of mace out of
his mouth and radioed for a rescue squad and a supervisor. Corbeau
pulled out his expanded baton and attempted to move forward to con-
trol Clem, but stepped into a residual cloud of pepper spray that inca-
pacitated him for 20 to 30 seconds.
Upon reentering the house, Nelson testified that "Clem was coming
after" him in the living room, uttering profanities and racial epithets
and swinging both hands. After ordering him to back up, Nelson
sprayed Clem with pepper spray. The mace "took no effect" and Clem
continued his approach. Clem "took a swing" at Nelson, which Nel-
son was able to brush away.
At this point, Clem turned to Corbeau, who was now standing at
the entrance to the hallway with his baton extended. Clem then rushed
Corbeau, reportedly with the same "intensity of rage and anger."
According to Corbeau, Clem was again uttering a threat to kill. Cor-
beau began backing down the hallway, warning Clem to stay back. It
was at this time that Corbeau unholstered his gun and shot Clem three
times in quick succession. Corbeau reported that he felt he had to
shoot Clem because the mace had failed to stop Clem; the officer was
in a confined space (the hallway) that would not allow him to use his
baton effectively; and Clem’s threats, conduct, larger size (Clem was
taller and at least 50 pounds heavier), and demeanor caused Corbeau
to fear for his life.
Clem filed suit in state court against Corbeau and Nelson, alleging,
inter alia, an excessive force claim under 42 U.S.C. § 1983 (2000),
4 CLEM v. CORBEAU
and a state law assault and battery claim. Corbeau and Nelson
removed the case to federal court. Judge T. S. Ellis granted summary
judgment to Corbeau and Nelson on Clem’s claim that they used
unconstitutionally excessive force when they subjected him to pepper
spray and to Fairfax County and its police chief on Clem’s training
and supervision claim. However, Judge Ellis denied both Clem and
Corbeau summary judgment on the excessive force and assault and
battery claims arising from Corbeau’s shooting of Clem. We affirmed
the denial of summary judgment on the excessive force claim and dis-
missed Corbeau’s interlocutory appeal of the denial of summary judg-
ment on the assault and battery claim. Clem v. Corbeau, 284 F.3d 543(4th Cir. 2002). The claims on which Judge Ellis had refused to grant
summary judgment, growing out of Corbeau’s shooting of Clem,
were then tried before a jury, with Judge Leonard Wexler presiding;
the jury returned a verdict for Corbeau. This appeal followed.
II.
Clem first argues that the district court erred in excluding certain
evidence. We review a district court’s evidentiary rulings for abuse
of discretion. United States v. Russell, 971 F.2d 1098, 1104 (4th Cir.
1992).
The district court precluded the testimony of Clem’s two use of
force experts, Lou Reiter and Dwight Colley. Whether an officer has
used excessive force is judged by a standard of objective reasonable-
ness, which requires a jury to determine "whether a reasonable officer
in the same circumstances would have concluded that a threat existed
justifying the particular use of force." Elliott v. Leavitt, 99 F.3d 640,
642 (4th Cir. 1996) (citing Graham v. Connor, 490 U.S. 386, 396-97
(1989)).1
1
An officer’s use of deadly force is justified only when a reasonable
officer would have "sound reason to believe that a suspect poses a threat
of serious physical harm to the officer or others." Elliott, 99 F.3d at 642.
The Supreme Court has also stated that this threat should be "immedi-
ate." Tennessee v. Garner, 471 U.S. 1, 11 (1985). The district court
instructed the jury both that Corbeau’s use of deadly force was "not justi-
fied unless there was probable cause to believe that there was a threat of
serious harm to the defendant or others," and that the jury could take into
CLEM v. CORBEAU 5
As a general proposition, an "objective reasonableness" standard
may be comprehensible to a lay juror and require no expert assistance.
Kopf v. Skyrm, 993 F.2d 374, 378 (4th Cir. 1993). However, in an
excessive force case, the relevant standard of conduct used to assess
reasonableness "is not defined by the generic — a reasonable person
— but rather by the specific — a reasonable officer." Id. As a result,
the reasonableness inquiry in an excessive force case can involve
"specialized knowledge," which an expert witness can assist the jury
in understanding. Id.; see also Fed. R. Evid. 702. Indeed, in Kopf, we
held that a district court had abused its discretion in excluding expert
testimony "as to the prevailing standard of conduct for the use" of two
"specialized tool[s]" of police work: police dogs (the training and use
of which were held to be "obscure skills") and slapjacks. Id. at 379.
Clem argues that the district court similarly abused its discretion by
excluding the expert testimony of Reiter and Colley on the use of
force because "the standard by which Corbeau was to be judged is
beyond the scope of the average lay person."
However, Kopf did not establish a "blanket rule that expert testi-
mony is generally admissible in excessive force cases." Kopf, 993
F.2d at 378. Rather, we there specifically noted that "the facts of
every case will determine whether expert testimony would assist the
jury." Id. at 379. Here the proffered experts did not offer expert testi-
mony providing specialized knowledge on "obscure skills." Their
only relevant testimony involved opinions, given their particular
interpretations of the contested facts, as to the reasonableness of Cor-
beau’s use of force at issue in this case (i.e. his shooting of Clem).2
account whether this threat was "immediate." These instructions ade-
quately informed "the jury of the controlling legal principles without
misleading or confusing the jury to the prejudice" of Clem. Rowland v.
Am. Gen. Fin., Inc., 340 F.3d 187, 191 (4th Cir. 2003). Contrary to
Clem’s contentions, the court did not abuse its discretion in refusing to
grant his request to mention the serious harm and immediacy factors in
the same sentence or phrase.
2
As for those parts of Reiter’s Expert Witness Designation and Col-
ley’s report and deposition testimony evaluating the reasonableness of
Corbeau and Nelson’s actions preceding the shooting (e.g. their interac-
tions with Clem in the breakfast area), these evaluations are not relevant
to the case at hand. Corbeau’s shooting of Clem was the only use of
force at issue here, and "Graham requires us to focus on the moment
force was used; conduct prior to that moment is not relevant in determin-
ing whether an officer used reasonable force." Elliott, 99 F.3d at 643.
6 CLEM v. CORBEAU
Instead of assisting the jury, such expert opinion risked "supplant[ing]
a jury’s independent exercise of common sense" and its role of deter-
mining the facts. Id. at 377. Thus, the district court did not abuse its
discretion in excluding this testimony.
Clem also contends that the district court abused its discretion in
excluding testimony and exhibits relating to Corbeau’s training. How-
ever, to the degree that information regarding Corbeau’s training was,
as Clem argues, "probative of what is reasonable in this case," (and
hence not a collateral issue) the court could have reasonably expected
Clem at least to attempt to elicit such information from Corbeau him-
self. Extrinsic testimony or exhibits regarding Corbeau’s training
would become necessary only if Corbeau showed himself to be unco-
operative or misleading when questioned by Clem. Cf. id. at 377
(finding reversible error when Kopf was forced to call one of the
defendant-officers as an adverse witness on the standards for use of
a police dog and was unable to rebut the officer when he did not give
Kopf the answers "Kopf would have liked"). It might have been error
had the court not allowed Clem to impeach Corbeau’s testimony if
such impeachment became necessary; until such time, however, the
district court acted within its discretion in excluding evidence whose
"probative value is substantially outweighed by . . . considerations of
undue delay, waste of time, or needless presentation of cumulative
evidence." Fed. R. Evid. 403.
When Clem did broach the subject of Corbeau’s training, the dis-
trict court stated, over Officer Corbeau’s objection, that it would
allow all such questions regarding what Corbeau "knew and what
experience he had," and admitted an exhibit that, according to Clem,
"set forth the regimen of training that [Corbeau] received in the Fair-
fax Police Academy." Further, Corbeau himself showed no tendency
to be uncooperative or misleading, and Clem cites no responses of
Corbeau’s that he would have wanted to impeach. In response to the
few questions that Clem did ask Corbeau regarding his training in
self-defense tactics, for instance, Corbeau agreed that he had received
training in hand-to-hand combat when he was in the Marines, and that
about one quarter of his training at the police department had been
devoted to such tactics. Indeed, the amount of information Clem
obtained from Corbeau about his training appeared to be limited only
by Clem’s own decision about what questions to ask the officer.
CLEM v. CORBEAU 7
Accordingly, the district court did not abuse its discretion in its evi-
dentiary rulings.
III.
Clem next argues that certain comments of the district court pre-
vented him from receiving a fair and impartial trial. Because "[i]t was
the jury, not the trial judge, that found" for Corbeau, "to argue that
he was deprived of a fair trial," Clem must show that the judge’s com-
ments "somehow affected the outlook or deliberations of the jurors."
Rowsey v. Lee, 327 F.3d 335, 342 (4th Cir. 2003). Although Clem did
not object at trial to the court’s comments, "where a trial judge’s com-
ments were so prejudicial as to deny a party an opportunity for a fair
and impartial trial, the absence of objections will not preclude our
review since counsel will be loathe to challenge the propriety of a trial
judge’s utterances for fear of antagonizing him and thereby prejudic-
ing a client’s case." Stillman v. Norfolk & W. Ry. Co., 811 F.2d 834,
839 (4th Cir. 1987). However, the Supreme Court has ruled that "ex-
pressions of impatience, dissatisfaction, annoyance, and even anger"
— an accurate description of all of the comments to which Clem now
objects — do "[n]ot establish[ ] bias or partiality" on the part of a
judge. Liteky v. United States, 510 U.S. 540, 555-56 (1994).
The district court’s numerous comments expressing impatience,
dissatisfaction, and annoyance with Clem’s counsel in front of the
jury substantially departed from the "general model of judiciousness."
United States v. Head, 697 F.2d 1200, 1210 (4th Cir. 1982). Never-
theless, we cannot conclude that these comments denied Clem a fair
and impartial trial. Unlike those cases in which we have found such
a level of prejudice, see, e.g., Sit-Set, A.G. v. Universal Jet Exch.,
Inc., 747 F.2d 921, 926 (4th Cir. 1984), the comments in this case did
not "tend[ ] to impose upon the jury what the judge seems to think
about the evidence," United States v. Cole, 491 F.2d 1276, 1278 (4th
Cir. 1974), nor did they constitute direct attacks on the plaintiff or
plaintiff counsel’s "credibility or the strength of [his] case," United
States v. Simpkins, 505 F.2d 562, 565 (4th Cir. 1974). Rather, all of
the comments involved admonishments of Clem’s counsel "as to the
improper form," repetitiveness, or relevance of his questioning. Id.Clem cites no case in which we have found such admonishments —
even when delivered in an "inflammatory and insulting" manner,
8 CLEM v. CORBEAU
United States v. Gastiaburo, 16 F.3d 582, 590 (4th Cir. 1994) — to
establish trial bias or partiality. Cf. id.; Stillman, 811 F.2d at 839;
Head, 697 F.2d at 1210; Simpkins, 505 F.2d at 565.
Moreover, the judge’s lengthy instructions, both at the beginning
and end of the trial, that "[n]othing the Court may say or do during
the course of the trial is intended to indicate nor should be taken by
you as an indication of what your verdict should be" cured any preju-
dice that might have arisen from these comments. See, e.g., United
States v. Villarini, 238 F.3d 530, 537 (4th Cir. 2001).
IV.
Clem also raises arguments in connection with his state law assault
and battery claim.
First, he contends that he was entitled to judgment as a matter of
law on this claim because Corbeau allegedly never raised any affirma-
tive defenses to it in his answer or any pre-trial motion — and "the
general rule [is] that a party’s failure to raise an affirmative defense
in the appropriate pleading results in waiver." Brinkley v. Harbour
Recreation Club, 180 F.3d 598, 612 (4th Cir. 1999). Absent any
excuse or justification, Clem argues that Corbeau’s intentional shoot-
ing was "clearly an assault and battery."
Even if Corbeau did have to assert reasonable force as an affirma-
tive defense, but see, Edson v. City of Annaheim, 74 Cal. Rptr. 2d
614, 615-16 (Cal. Ct. App. 1998) (collecting cases holding that a
plaintiff asserting a battery action against a police officer must prove
unreasonable force as an element of the tort), he did advance in his
answer the defense that the "force used against [Clem] . . . was rea-
sonable and necessary" and "any injury was a result of [Clem’s] own
actions." Although Corbeau did not explicitly state the term "self-
defense" — the applicable affirmative defense to assault and battery,
see Hughes v. Commonwealth, 573 S.E.2d 324, 331 (Va. Ct. App.
2002) — his answer sufficiently encapsulated the elements of self-
defense under Virginia law to have put Clem on notice that Corbeau
intended to rely on this defense. See Diffendal v. Commonwealth, 382
S.E.2d 24, 26 (Va. Ct. App. 1989).
CLEM v. CORBEAU 9
This was all that was necessary. "An affirmative defense may be
pleaded in general terms and will be held to be sufficient . . . as long
as it gives plaintiff fair notice of the nature of the defense." 5 Charles
Allan Wright & Arthur R. Miller, Federal Practice & Procedure
§ 1274, at 455-56 (2d ed. 1990); see also Fed. R. Civ. P. 8(e), (f) (pro-
viding that "[n]o technical forms of pleading or motions are required"
and "[a]ll pleadings shall be so construed as to do substantial jus-
tice"); Peterson v. Airline Pilots Ass’n, 759 F.2d 1161, 1164 (4th Cir.
1985) (stating that an affirmative defense not asserted in an answer
or motion is not automatically waived, but requires a "showing of
prejudice or unfair surprise").
Additionally, Clem asserts that the district court erred in not
instructing the jury on his assault and battery claim. The court refused
to do so, explaining to Clem that "if you win on excessive force, you
get everything you want that’s included" in the assault and battery
charge, but "if you lose on excessive force, you lose on everything."
Though separate instructions for Clem’s federal and state law
claims might have been preferable, we find no reversible error given
that, under the facts of this case, a jury finding against Clem on the
excessive force claim but for Clem on the assault and battery claim
would have been "inconsistent." Carter v. Rogers, 805 F.2d 1153,
1158 (4th Cir. 1986). An officer’s liability for the use of excessive
force under § 1983 is not completely "co-extensive with the common
law tort liability for battery," Freeman v. Freeman, 695 F.2d 485, 492
(7th Cir. 1982), but we do "not perceive on the facts of this case how
the factfinder could find for [Clem] on one cause of action and not
on the other." Carter, 805 F.2d at 1158.3 "[U]nreasonable or unneces-
3
One arguable distinction between an excessive force claim and an
assault and battery claim justified by self defense is that Virginia self-
defense law would require Corbeau to "retreat[ ] as far as he safely can
before he attempts to repel the attack" if he was found to be "at fault in
precipitating" the assault. Foote v. Com., 396 S.E.2d 851, 855 (Va. Ct.
App. 1990). However, as Clem himself admits, in granting summary
judgment to Corbeau on the mace claim, Judge Ellis held (in a ruling that
Clem never appealed) that "Corbeau’s use of pepper spray in the circum-
stances was reasonable." Given this holding, Corbeau cannot be said to
have been at fault for precipitating the assault.
10 CLEM v. CORBEAU
sary force was the touchstone of both causes of action" and we do not
see any significant "distinction between the degree of unnecessary
and unreasonable force" required for a jury to find for Clem on either
claim. Id. Conversely, a finding for Corbeau under either cause of
action required the jury to find that Corbeau had "sound reason to
believe that [Clem] pose[d] a threat of serious physical harm" to the
officer. Elliott, 99 F.3d at 642; see also McGhee v. Com., 248 S.E.2d
808, 810 (Va. 1978) (noting that a defendant asserting self-defense to
justify the use of deadly force "must reasonably fear death or serious
bodily harm to himself at the hands of his victim"). In sum, the failure
of the court to provide separate instructions on the assault and battery
and excessive force claims in this case cannot be said to have preju-
diced Clem.
V.
Clem’s final objections arise from limitations on his examination
of Officer Nelson, whom Clem called as a witness.
On cross-examination by Corbeau’s counsel, Nelson stated for the
first time that Clem had told Corbeau in the kitchen breakfast area,
"I have something better than what you have on your belt." On redi-
rect, Clem’s counsel attempted to impeach this testimony by reference
to Officer Nelson’s prior recorded statement of November 18, 1998,
in which Nelson indicated only that Clem had said "I am not afraid
of what you’ve got on your belt" (emphasis added). However, the dis-
trict court sustained Corbeau’s objection to this line of inquiry, appar-
ently on the ground that Clem had already discussed Nelson’s
statement on direct examination. In fact, Clem had not discussed this
specific statement, and Clem therefore argues that the court’s refusal
to allow him to impeach Nelson’s cross-examination statement consti-
tuted an abuse of discretion.
Clem also argues that the "reasonable man" standard would apply to
the self-defense claim while the "reasonable police officer standard"
applies to excessive force cases. However, a reasonable person standard
would require less of a defendant than a reasonable police officer stan-
dard and hence would have made a jury less likely to find for Clem on
the assault and battery claim.
CLEM v. CORBEAU 11
Generally, a district court will properly "allow testimony on redi-
rect which clarifies an issue which the defense opened up on cross-
examination even when this evidence is otherwise inadmissible."
United States v. Catano, 65 F.3d 219, 226 (1st Cir. 1995). Nelson’s
cross-examination belt statement certainly "opened the door for
[Clem] to impeach that testimony." United States v. Kroh, 915 F.2d
326, 332 (8th Cir. 1990). Moreover, Nelson’s prior statement in its
entirety had already been admitted into evidence and had already
"been mentioned in another context, was clearly probative of the cred-
ibility of [Nelson’s cross-examination] testimony, and was not
unfairly prejudicial." Id. Hence, we find that the district court did
abuse its discretion in not permitting the impeachment of Nelson with
his prior statement.
However, given that Nelson’s entire prior statement was admitted
into evidence and before the jury; that Nelson confirmed that he had
given this prior statement; and that Clem elicited at least some testi-
mony regarding the prior Nelson statement from Lieutenant Vice (the
officer to whom the statement was made), we cannot conclude that
the court’s refusal to allow Clem to impeach Nelson with that state-
ment "substantially swayed" the verdict. Taylor v. Va. Union Univ.,
193 F.3d 219, 235 (4th Cir. 1999). Thus, the error was harmless.
Clem further argues that the district court abused its discretion in
imposing a forty-five minute time limit on his direct examination of
Nelson, given that Clem stated that he needed two hours. Trial courts
have the discretion to "‘exercise reasonable control over’ the interro-
gation of witnesses and the presentation of evidence in order to . . .
avoid needless waste of time in the presentation of a case." United
States v. Castner, 50 F.3d 1267, 1272 (4th Cir. 1995) (quoting Fed.
R. Evid. 611(a)). In this case, Clem has proffered no probative evi-
dence effectively excluded by the court’s time limit. Further, the dis-
trict court did not impose the kind of "rigid hour limits" that some
courts have discouraged. See, e.g., Johnson v. Arby, 808 F.2d 676,
678 (8th Cir. 1987). Rather, the court appeared flexible in allowing
Clem additional time to present evidence, giving him an hour (instead
of the allotted 45 minutes) on the first day and additional time upon
Clem’s request the following day. Accordingly, the district court did
not abuse its discretion in imposing the challenged time limitations.
12 CLEM v. CORBEAU
VI.
For the foregoing reasons, the judgment of the district court is in
all respects
AFFIRMED.