Kenney v. Head

United States Court of Appeals
For the First Circuit
No. 11-1649
JAMES J. KENNEY,
Plaintiff, Appellant,
v.
JASON T. HEAD, et al.
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Boudin, Stahl, and Thompson, Circuit Judges.
John R. Mahoney, Asquith & Mahoney, LLP, for appellant.
Marc DeSisto, DeSisto Law, with whom Karen K. Corcoran and
Kathleen M. Daniels were on brief, for appellees.
January 26, 2012
STAHL, Circuit Judge. After James J. Kenney was arrested
for obstructing a police officer, charges which were later dropped,
he brought an action against the two officers involved, Jason Head
and Stephen Head, for various alleged violations of 42 U.S.C.
§ 1983. Ultimately, two of Kenney's claims against Jason Head
reached a jury, and the jury found for Head on both counts. Kenney
moved for a new trial based on a preserved objection to the
district court's decision to exclude certain evidence. After the
district court denied Kenney's motion, he appealed. Finding no
abuse of discretion, we affirm.
I. Facts & Background
At around 1:30AM on August 12, 2006, Kenney and his
friend Brian Bollinger left a Newport, Rhode Island bar and walked
down Thames Street on their way to Bollinger's friend's house. At
about the same time, four Newport police officers, Sergeant John
Barker and Officers Eric Geoghegan, Jason Head, and Stephen Head,1
were on "bar patrol," handling crowd control as the bars in the
downtown Newport area let out for the night; their duties included
keeping the peace and moving the crowds out of the streets to allow
vehicular traffic to pass.
According to Kenney's testimony, as he and Bollinger
approached the Fifth Element bar, Kenney observed Stephen Head
1
To avoid confusion, we refer to both Jason Head and Stephen
Head by their full names.
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issuing a traffic citation to a motorcycle operator, Eric Mendoza.
Kenney testified that Mendoza's female passenger was
hyperventilating and very upset, and that the two people on the
motorcycle motioned for him and Bollinger to approach. Kenney and
Bollinger went over to Mendoza and conversed with him and his
passenger. While standing near the motorcycle, Bollinger yelled,
waved his arms, and pointed at the police officers. Responding,
Jason Head told Kenney and Bollinger to move along, but neither
did. Because of where the two men and the motorcycle were
positioned, patrons exiting nearby bars were being forced to walk
into the street. After Bollinger continued to yell and point,
Jason Head physically escorted Bollinger away from the motorcycle,
while Stephen Head provided cover.2
Kenney followed after Bollinger and Jason Head and
refused to leave the scene despite requests from the officers.
Jason Head testified that he felt he could not focus on Bollinger
as a result of Kenney's refusal to leave.3 He further testified:
2
Kenney disputed Jason Head's testimony, claiming in his own
testimony that it was Stephen Head, and not Jason Head, who told
Kenney and Bollinger to move along and who pulled Bollinger away.
To the extent that the record reflects contradictory testimony from
Jason Head and Kenney, it is the job of the jury to resolve such
factual discrepancies. See, e.g., United States v. Soto-Beníquez,
356 F.3d 1, 44 (1st Cir. 2004) (stating that "[c]redibility
judgments are the province of the jury").
3
Kenney does not dispute that the officers asked him to leave
the scene multiple times and in fact testified to that effect.
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I saw Mr. Kenney coming and approaching from
the backside, his hands up, his arms around
his shoulder height and yelling, You can't
touch him. You can't touch him like that.
He was right within feet of my brother
[Stephen Head] and also another officer; and I
deemed that as a threat, especially after
several times of warning him to leave, and I
thought that assault was imminent.
Jason Head then warned Kenney that if he did not leave,
he would be arrested. According to Jason Head, Kenney still failed
to leave, and it was then that he arrested Kenney for obstructing
a police officer. Kenney testified that being handcuffed was
painful because he had recently undergone shoulder surgery. Kenney
was transported to the police station in a cruiser. Subsequently,
the charges against him were dismissed.
On August 6, 2009, Kenney filed a complaint against
Officers Jason Head and Stephen Head in the United States District
Court for the District of Rhode Island, alleging that the events
surrounding his arrest constituted a deprivation of his
constitutional rights in violation of 42 U.S.C. § 1983.4 Though
the complaint was "not a model of clarity," Kenney v. Head (Kenney
I), C.A. No. 09-349 ML, 2011 WL 116856, at *1 n.1 (D.R.I. Jan. 13,
4
Kenney also sued the City of Newport for violations of
section 1983, alleging that the City carried out unlawful policies
regarding training of police officers and treatment of arrestees.
The district court granted summary judgment for the City on January
13, 2011. Kenney v. Head, C.A. No. 09-349 ML, 2011 WL 116856, at
*3-5 (D.R.I. Jan. 13, 2011). Kenney does not appeal that order,
and we therefore need not address his claims against the City.
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2011), the district court construed Kenney's claims against the
officers as "false arrest and improper seizure, excessive force,
conspiracy, assault and battery, malicious prosecution, and false
imprisonment." Id. at *1.
The case proceeded to jury trial, which was held on March
15 and 16, 2011. During the trial, Kenney's counsel sought to
elicit testimony from Mendoza as to statements that Officer
Geoghegan allegedly made before Kenney approached Mendoza. Counsel
for the officers objected to the line of questioning as irrelevant
and prejudicial, and the district court sustained the objection on
relevance grounds. Kenney's counsel then made the following offer
of proof:
[Mr. Mendoza] would testify that he was
approached by Officer Geoghegan and that
Officer Geoghegan told him in an angry manner,
Put the engine off, and that he then said to
Mr. Mendoza that if he did that in my town,
I'd shoot you in the F-ing head.
At the close of the first day of trial, the district
court granted Stephen Head's motion for judgment as a matter of law
as to all claims, and also partially granted Jason Head's motion
for judgment as a matter of law, sending to the jury only Kenney's
claims against Jason Head for false arrest and malicious
prosecution. Each claim centered around whether Jason Head had
probable cause to arrest Kenney. The district court instructed the
jury "that probable cause exists where the arresting officer,
acting upon apparently trustworthy information, reasonably
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concludes that a crime has been committed and that the arrestee is
likely a perpetrator," and further instructed the jury that the
probable cause determination is "based on objective facts and not
the officer's subjective intent." Kenney v. Head (Kenney II), C.A.
No. 09–349 ML, 2011 WL 1791885, at *2 n.3 (D.R.I. May 10, 2011).
The jury returned a verdict for Jason Head on both counts.
On April 8, 2011, Kenney filed a motion for a new trial,5
arguing that the jury's inability to consider Geoghegan's alleged
statements to Mendoza deprived the jury of the opportunity to
adequately understand the officers' motives in arresting Kenney.
The district court again considered the propriety of admitting the
exchange into evidence and again found the exchange irrelevant to
Kenney's claims under Federal Rule of Evidence 401 and therefore
inadmissible under Rule 402. Id. at *2. The district court also
determined that even if relevant, the evidence was unduly
prejudicial under Rule 403. Id. Thus, the district court denied
the motion for a new trial. Id. at *3. Kenney timely appealed.
II. Discussion
Because the basis for Kenney's motion for a new trial is
an evidentiary ruling by the district court, we address his appeal
5
The motion was styled as a motion to alter or amend the
judgment pursuant to Federal Rule of Civil Procedure 59(e), but
within the motion, Kenney requested a new trial. The district
court therefore considered it to be a motion for a new trial
pursuant to Federal Rule of Civil Procedure 59(a), and we do the
same. Kenney II, 2011 WL 1791885, at *1 n.1.
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in that context. Our review of rulings excluding evidence is for
abuse of discretion. United States v. Nguyen, 542 F.3d 275, 279
(1st Cir. 2008). The discretion we accord is broad, "'[i]n
deference to a district court's familiarity with the details of a
case and its greater experience in evidentiary matters . . . .'"
United States ex rel. Loughren v. Unum Group, 613 F.3d 300, 315
(1st Cir. 2010) (quoting Sprint/United Mgmt. Co. v. Mendelsohn, 552
U.S. 379, 384 (2008)). "'[T]he district court abuses its
discretion when a relevant factor deserving of significant weight
is overlooked, or when an improper factor is accorded significant
weight, or when the court considers the appropriate mix of factors,
but commits a palpable error of judgment in calibrating the
decisional scales.'" Nguyen, 542 F.3d at 281 (quoting United States
v. Roberts, 978 F.2d 17, 21 (1st Cir. 1992)).
Kenney argues that the district court improperly excluded
Geoghegan's alleged statements because they were relevant to an
"alternative explanation" for his arrest. Federal Rule of Evidence
401 defines relevant evidence as "evidence having any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it
would be without the evidence."6 Under Rule 402, "[e]vidence which
6
The Federal Rules of Evidence applicable to this case were
all amended effective December 1, 2011; the changes were "intended
to be stylistic only." See Fed. R. Evid. 401 cmt. 2011 Amendments;
Fed. R. Evid. 402 cmt. 2011 Amendments; Fed. R. Evid. 403 cmt. 2011
Amendments. Here, for each rule, we use the language from the
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is not relevant is not admissible." Thus, for Kenney to succeed in
demonstrating relevance, the alternative explanation for the
arrest, specifically, that the officer had a "motive for arrest
other than probable cause," must go to a fact of consequence.
"The question of probable cause . . . is an objective
inquiry," and we do not consider the "'actual motive or thought
process of the officer.'" Holder v. Town of Sandown, 585 F.3d 500,
504 (1st Cir. 2009) (internal citation omitted) (quoting Bolton v.
Taylor, 367 F.3d 5, 7 (1st Cir. 2004)); see also Whren v. United
States, 517 U.S. 806, 813 (1996) ("Subjective intentions play no
role in ordinary, probable-cause Fourth Amendment analysis.").
Instead of considering any subjective motive of an individual
officer, "we must view the circumstances from the perspective of a
reasonable person in the position of the officer." Holder, 585
F.3d at 504. This standard is consistent with the manner in which
the district court instructed the jury before it made its finding
of probable cause. Thus, the jury would not have been able to
consider any "alternative explanation" for arrest had it been
offered into evidence.
Even if it were proper for the jury to consider
subjective motive, the relevance of an alternative motive argument
is especially weak where, as here, the facts pertaining to the
version that was in force at the time of the district court's
rulings.
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alleged alternative motive are divorced from the set of facts from
which the jury would likely determine probable cause.7 As the
district court correctly pointed out, Kenney's arrest for
obstruction, and his consequent action under section 1983, arose
out of a temporally distinct set of facts from those having to do
with the alleged exchange between Geoghegan and Mendoza, with
completely different people taking part. The district court ably
explained:
Testimony regarding the dialogue between
Officer Geoghegan and Mendoza would not
elucidate the objective facts surrounding
Kenney's arrest for obstructing the officers
while they detained Bollinger. Kenney's
arrest centered around his interactions with
officers Jason Head and Stephen Head while
they detained Bollinger. The probable cause
determination for that arrest bears no direct
relationship to Mendoza and Geoghegan's
alleged interaction. Consequently, it was
irrelevant what Officer Geoghegan, a non-party
police officer, said to Mendoza, a non-party
witness, prior to Bollinger being detained and
Kenney being arrested. Nothing in the
interaction would have a tendency to make the
existence of any fact relating the issue of
probable cause for Kenney's arrest more or
less probable.
Kenney II, 2011 WL 1791885, at *2. This proper analysis in no way
constituted an abuse of discretion, as the district court weighed
7
Even assuming an alternative motive argument were relevant
and proper for the jury's consideration, the jury was in fact told
of an altercation between the officers and Mendoza; the only
evidence excluded was the particular foul language that Geoghegan
allegedly employed.
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appropriate factors in a competent manner. See Nguyen, 542 F.3d at
281.
Further, in a probable cause determination, the "only
relevant facts are those known to the officer." Holder, 585 F.3d
at 504. There is no evidence in the record that the arresting
officer, Jason Head, had any knowledge of the alleged exchange
between Geoghegan and Mendoza, and it is therefore irrelevant to
the probable cause determination.
In his reply brief, Kenney restructures his objection to
the exclusion of the evidence, stating that he sought the admission
of Geoghegan's alleged statement in order to show "bias in the
testimony of [Jason Head] and his fellow officers in order to cast
doubt on their testimony." However, none of Kenney's previous
filings before the district court or on appeal even hinted at this
argument; the word "bias" appears nowhere in his opening brief, nor
in his memorandum attached to the motion for a new trial that was
submitted to the district court. We therefore consider any
argument pertaining to bias to be a new one, and thus waived. See
Martinez-Burgos v. Guayama Corp., 656 F.3d 7, 10 (1st Cir. 2011)
("Arguments raised for the first time in a reply brief are
waived.") (quoting United States v. Vanvliet, 542 F.3d 259, 265 n.3
(1st Cir. 2008)); United States v. DeSimone, 488 F.3d 561, 570 (1st
Cir. 2007) ("The failure of counsel to have informed the trial
court of the correct evidentiary theory under which evidence is
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sought to be admitted is ordinarily a waiver of the right to argue
that theory on appeal."). In "exceptional circumstances," such
waived arguments may be reviewed for plain error. DeSimone, 488
F.3d at 570.
While it is true that "[p]roof of bias is almost always
relevant because the jury, as finder of fact and weigher of
credibility, has historically been entitled to assess all evidence
which might bear on the accuracy and truth of a witness'
testimony," United States v. Abel, 469 U.S. 45, 52 (1984), Kenney
cannot here overcome the plain error standard. Kenney's argument
regarding why or how the officers showed bias against him is both
extremely tenuous and undeveloped in his reply brief. The district
court's decision to exclude Geoghegan's alleged statement does not
come close to constituting plain error. See DeSimone, 488 F.3d at
570 (holding that the exclusion of evidence rises to the level of
plain error only where the ruling was "not only wrong but went to
the fairness, integrity and public reputation of the trial.").
Alternatively, even if there were some argument that
Geoghegan's alleged statement was relevant, the district judge
found that Federal Rule of Evidence 403 barred its admission. Rule
403 allows for the exclusion of otherwise relevant evidence "if its
probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury . . . ."
The district court determined that the admission of Geoghegan's
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alleged statement would be unduly prejudicial, as it risked
"confusing the issues and misleading the jury as to the matter
before it, namely the probable cause determination for [Kenney's]
arrest on an obstruction charge." Kenney II, 2011 WL 1791885, at
*2. As "Rule 403 judgments are typically battlefield
determinations, and great deference is owed to the trial court's
superior coign of vantage," we reverse a district court's 403
ruling only "in extraordinarily compelling circumstances." United
States v. Bunchan, 580 F.3d 66, 71 (1st Cir. 2009) (internal
quotation marks and citations omitted); see also Sprint, 552 U.S.
at 384 (the "wide discretion" accorded to district court for
evidentiary rulings is particularly important with respect to Rule
403 determinations). Especially because we agree with the district
court that there was no probative value to the proffered evidence,
the district court did not err in its determination that the
admission of Officer Geoghegan's alleged statement would have been
unduly prejudicial.
As there was no error in the district court's evidentiary
ruling about which Kenney complains,8 we find no reason to reverse
for a new trial. See Astro-Med, Inc. v. Nihon Kohden Am., Inc.,
591 F.3d 1, 13 (1st Cir. 2009) ("We reverse only if 'the verdict is
8
Kenney originally argued that certain statements made by
Jason Head's counsel in his closing argument also constituted
error. However, Kenney's counsel abandoned this claim at oral
argument, noting that it was "not an appealable issue"; therefore,
we need not address it.
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so seriously mistaken, so clearly against the law or the evidence,
as to constitute a miscarriage of justice.'") (quoting Levesque v.
Anchor Motor Freight, Inc., 832 F.2d 702, 703 (1st Cir. 1987)).
III. Conclusion
We affirm the district court's denial of the motion for
a new trial.
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