Robert Harrison v. Charlie Deane
Filing
UNPUBLISHED AUTHORED OPINION filed. Originating case number: 1:08-cv-00677-JCC-TCB. Copies to all parties and the district court/agency. [998578951] [09-2202]
Appeal: 09-2202
Document: 43
Date Filed: 04/29/2011
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-2202
ROBERT HARRISON,
Plaintiff - Appellant,
v.
CHARLIE T. DEANE, individually and in his official capacity
as Chief of the Prince William County Police Department;
MICHAEL SULLIVAN, individually and in his official capacity
as a member of the Prince William County Police Department;
JOHN MORA, individually and in his capacity as a member of
the Prince William County Police Department; JOHN DOES 1-10,
individually and in their capacity as members of the Prince
William County Police Department,
Defendants – Appellees,
and
PRINCE WILLIAM COUNTY POLICE DEPARTMENT; GREG PASS,
Defendants.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:08-cv-00677-JCC-TCB)
Argued:
January 28, 2011
Decided:
April 29, 2011
Before DUNCAN and WYNN, Circuit Judges, and Irene C. BERGER,
United States District Judge for the Southern District of West
Virginia, sitting by designation.
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Affirmed by unpublished opinion. Judge Wynn wrote the opinion,
in which Judge Duncan and Judge Berger joined.
ARGUED: John Gordon Humphrey, THE HUMPHREY LAW FIRM, Alexandria,
Virginia, for Appellant.
Mary Alice Rowan, COUNTY ATTORNEY’S
OFFICE, Prince William, Virginia, for Appellees.
ON BRIEF:
Angela L. Horan, County Attorney, Prince William, Virginia, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
2
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WYNN, Circuit Judge:
Plaintiff
Robert
Harrison
brought
this
42
U.S.C.
§ 1983
action against various Prince William County, Virginia police
officers, alleging that his constitutional rights were violated
when he was arrested for cursing at an officer.
that
the
Virginia
statute
under
which
he
Harrison argues
was
arrested
was
unconstitutional and therefore could not serve as the basis for
probable cause to arrest him.
But that statute has never before
been declared unconstitutional, and it is not so grossly and
flagrantly
unconstitutional
that
any
person
prudence would be bound to see its flaws. 1
Harrison’s
contention
that
it
could
not
of
reasonable
We therefore reject
form
the
basis
for
probable cause and affirm the judgment of the district court.
I.
On
October
apartment
in
4,
2005
Harrison
was
returning
Woodbridge,
Virginia
after
work.
home
to
his
Harrison
was
riding in the front passenger seat of a car driven by his friend
Marquis Christopher.
apartment
complex,
blocking the road.
As Harrison and Christopher approached the
they
observed
a
number
of
black
Christopher rolled down a window and asked a
woman leaning into the trunk of a car if they could pass.
1
vehicles
Michigan v. DeFillippo, 443 U.S. 31, 38 (1979).
3
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The
woman,
displayed
a
Date Filed: 04/29/2011
Officer
police
Jennifer
badge.
Page: 4 of 19
Evans,
Defendant
turned
Officer
around
John
Mora
and
was
returning to his car when he saw Evans speaking with the men in
the
car.
Evans
inappropriate
told
comments
Mora
to
that
her.
the
men
Mora
had
made
advised
sexually
Harrison
and
Christopher to leave and told them that it was inappropriate to
speak to a female officer that way.
Mora testified that as
Harrison rolled up the window, Harrison looked back at Mora and
called him a bitch.
Christopher then pulled into the parking lot in front of
Harrison’s
probable
apartment.
cause
§ 18.2-388.
to
That
cite
At
this
point,
Harrison
statute
for
provides
Mora
believed
violating
that
he
Virginia
“[i]f
any
had
Code
person
profanely curses or swears or is intoxicated in public . . . he
shall be deemed guilty of a Class 4 misdemeanor.”
Ann. § 18.2-388 (2009).
Va. Code.
Mora walked up to the passenger side of
the vehicle.
The
accounts
Harrison
testified
of
that
what
he
pushed up against the roof.
happened
was
next
snatched
out
are
of
conflicting.
the
car
and
Harrison asked what he was being
arrested for and was thrown to the ground by three officers.
Harrison testified that his head hit the pavement, and that Mora
ground his head into the pavement.
Harrison said the officers
picked him up, handcuffed him, and sat him down on the curb.
4
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Mora testified that he asked Harrison to step out of the
vehicle.
Harrison eventually opened the car door and stood up.
Mora said he told Harrison to place his hands on the roof of the
car.
When
Harrison
would
not
comply,
Mora
grabbed
one
of
Harrison’s arms and placed it behind his back.
Harrison started
to struggle, and Mora took him to the ground.
Another officer
helped get Harrison’s left arm from under him, and the officers
sat Harrison, handcuffed, on the curb.
After arresting Harrison, Mora signed a criminal complaint
and affidavit summarizing the incident and requesting charges
for
violation
of
Virginia
Code
§§ 18.2-388
and
18.2-415. 2
Harrison was brought before a magistrate who examined Mora and
other
2
officers.
The
magistrate
signed
a
warrant
for
arrest
Virginia Code § 18.2-415 states that:
A person is guilty of disorderly conduct if, with the
intent to cause public inconvenience, annoyance or
alarm, or recklessly creating a risk thereof, he:
A. In any street, highway, public building, or while
in or on a public conveyance, or public place engages
in conduct having a direct tendency to cause acts of
violence
by
the
person
or
persons
at
whom,
individually, such conduct is directed[.]
. . . .
However, the conduct prohibited under subdivision A, B
or C of this section shall not be deemed to include
the utterance or display of any words or to include
conduct otherwise made punishable under this title.
Va. Code Ann. § 18.2-415 (2009).
5
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charging Harrison with violation of Virginia Code § 18.2-415.
The
magistrate
also
signed
a
summons
requiring
Harrison
to
answer charges under Virginia Code § 18.2-416. 3
On July 1, 2008, Harrison filed a complaint against the
Prince
William
officers,
including
capacities.
under
42
County
Mora,
Harrison
U.S.C.
constitutional
Police
in
sought
§ 1983
protections
Department
their
alleged
against
various
individual
injunctive
for
and
and
and
police
official
monetary
violations
illegal
relief
of
seizure,
his
false
arrest, excessive force, denial of medical care, conspiracy to
violate civil rights, and violations of equal protection.
The
complaint
law
protections
also
sought
against
relief
for
and
assault
violations
battery
of
and
state
intentional
infliction of emotional distress.
The case was tried before a jury on September 8, 2009.
At
the close of the evidence, Harrison moved for judgment as a
matter of law on the claims against Mora related to illegal
3
Virginia Code § 18.2-416 provides that:
If any person shall, in the presence or hearing of
another, curse or abuse such other person, or use any
violent abusive language to such person concerning
himself or any of his relations, or otherwise use such
language, under circumstances reasonably calculated to
provoke a breach of the peace, he shall be guilty of a
Class 3 misdemeanor.
Va. Code Ann. § 18.2-416 (2009).
6
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arrest,
force,
seizure,
unlawful
excessive
and
assault
battery.
and
The district court denied Harrison’s motion.
Harrison submitted proposed jury instructions on the issue
of unlawful seizure.
These were included in the instructions
that the district court read to the jury.
The district court
also separately instructed the jury using the language of the
Virginia statutes.
Harrison objected to submitting the language
of the statutes, particularly Virginia Code § 18.2-388, to the
jury.
During deliberations, the jury requested a copy of the
curse
and
abuse
statute.
Harrison
again
objected.
Nevertheless, the district court sent a copy of the statute to
the
jury.
The
jury
decided
all
claims
in
favor
of
the
erred
in
Defendants, and Harrison appealed.
II.
Harrison
first
argues
that
the
district
court
denying his motion for judgment as a matter of law.
Harrison
argues that Virginia Code § 18.2-388 is facially invalid and
therefore Mora lacked probable cause to arrest him.
Harrison
contends that he said only “a single curse word to a trained
police
officer”
unconstitutional.
Judgment
as
and
that
arresting
someone
on
that
basis
is
Appellant’s Opening Brief at 8.
a
matter
of
law
is
appropriate
when
the
district court finds that a reasonable jury would not have a
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legally sufficient evidentiary basis to find for the nonmoving
party.
Fed. R. Civ. P. 50(a).
“We review de novo the grant or
denial of a motion for judgment as a matter of law.”
Anderson
v. Russell, 247 F.3d 125, 129 (4th Cir. 2001).
A.
The Fourth Amendment guarantees “[t]he right of the people
to be secure . . . against unreasonable searches and seizures.”
U.S. Const. amend IV.
It permits officers to make an arrest,
however, when the officers have probable cause to believe that a
person has committed a crime in their presence.
Moore, 553 U.S. 164, 178 (2008).
with federal law in this regard.
recognizes
that
“probable
Virginia v.
Virginia law is consistent
The Supreme Court of Virginia
cause
exists
when
the
facts
and
circumstances within the officer’s knowledge, and of which he
has reasonably trustworthy information, alone are sufficient to
warrant
offense
a
person
has
been
of
reasonable
or
is
caution
being
to
believe
committed.”
that
Taylor
an
v.
Commonwealth, 222 Va. 816, 820, 284 S.E.2d 833, 836 (Va. 1981)
(citing Draper v. United States, 358 U.S. 307, 313 (1959)).
The First Amendment states that “Congress shall make no law
. . . abridging the freedom of speech.”
U.S. Const. amend. I.
“[T]he First Amendment protects a significant amount of verbal
criticism and challenge directed at police officers.”
8
City of
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Houston, Tex. v. Hill, 482 U.S. 451, 461 (1987).
Supreme
speech
Court
that
invalidated
in
any
a
manner
city
ordinance
interrupted
an
In Hill, the
that
prohibited
officer
in
the
performance of his duties.
Id. at 462; see also Lewis v. City
of
130,
New
Orleans,
415
U.S.
134
(1974)
(invalidating
ordinance that criminalized cursing at an officer).
an
The Supreme
Court has recognized, however, that states may constitutionally
prohibit
fighting
words,
i.e.,
those
which
by
their
utterance tend to incite an immediate breach of the peace.
very
See
Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).
Harrison argues that the United States Constitution limits
the application of Virginia Code §§ 18.2-388 and 18.2-416 to
fighting words.
Harrison recognizes, however, that no court has
limited the application of Virginia Code § 18.2-388 to words
that have a tendency to incite an immediate breach of the peace. 4
Harrison contends, nonetheless, that “the fact that a court has
not specifically commented on Va. Code § 18.2-388’s application
to speech has no bearing on . . . an officer’s duty to follow
clearly
established
constitutional
4
law.”
Appellant’s
Opening
The Virginia Court of Appeals held unconstitutional a city
ordinance containing language that “parallels the language of
Code § 18.2-388.” Burgess v. City of Va. Beach, 9 Va. App. 163,
165, 385 S.E.2d 59, 60 (Va. App. 1989), overruled in part as
recognized by Marttila v. City of Lynchburg, 33 Va. App. 592,
600 n.5, 535 S.E.2d 693, 697 n.5 (Va. App. 2000). Burgess does
not, however, purport to invalidate Virginia Code § 18.2-388.
9
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Brief at 25.
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Harrison concludes that he was entitled to a
judgment that he was arrested without probable cause.
We are directed to no Fourth Circuit precedent addressing
the issue of whether an allegedly unconstitutional statute can
form a basis for probable cause.
none. 5
The
Supreme
Court
has,
Our research has revealed
however,
addressed
this
very
issue. 6
B.
In Michigan v. DeFillippo, 443 U.S. 31 (1979), the Supreme
Court
held
that
an
officer
had
probable
cause
to
arrest
a
suspect for refusing to identify himself, notwithstanding that
the applicable ordinance was invalid and would be judicially
declared unconstitutional.
Id. at 37.
The Court explained that
at the time of the arrest, “there was no controlling precedent
that this ordinance was or was not constitutional, and hence the
conduct observed violated a presumptively valid ordinance.”
A
prudent
officer,
the
Court
said,
“should
not
have
Id.
been
5
The closest case appears to be United States v. Fayall,
315 F. App’x 448, 449-50 (4th Cir. 2009), an unpublished opinion
involving a city ordinance.
6
We note that neither party cited this case, which is
crucial to this appeal’s resolution.
10
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required
to
Date Filed: 04/29/2011
anticipate
that
ordinance unconstitutional.”
a
Page: 11 of 19
court
would
later
hold
the
Id. at 38.
“Police are charged to enforce laws until and unless they
are declared unconstitutional.”
Id.
DeFillippo thus announced
that probable cause may exist even under an unconstitutional
statute, with one caveat.
speculation
by
enforcement
constitutionality-with
grossly
and
“The enactment of a law forecloses
the
flagrantly
officers
possible
concerning
exception
unconstitutional
that
of
a
law
so
person
any
reasonable prudence would be bound to see its flaws.”
exception has been employed sparingly.
its
of
Id.
This
See United States v.
Cardenas-Alatorre, 485 F.3d 1111, 1117 n.15 (10th Cir. 2007)
(“Only in the rarest of instances, as reflected in the standard
set forth in DeFillippo, is an officer expected to question the
will of the majority embodied in a duly, and democratically,
enacted
law;
.
.
.
.”).
As
the
Supreme
Court
explained,
“[s]ociety would be ill-served if its police officers took it
upon themselves to determine which laws are and which are not
constitutionally entitled to enforcement.”
DeFillippo
443 U.S.
at 38; see also Illinois v. Krull, 480 U.S. 340, 349-50 (1987)
(“Unless
a
statute
is
clearly
unconstitutional,
an
officer
cannot be expected to question the judgment of the legislature
that passed the law.”).
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The Sixth Circuit used the DeFillippo exception in Leonard
v. Robinson, 477 F.3d 347 (6th Cir. 2007).
The plaintiff there
was arrested at a township board meeting for saying the phrase
“God
damn”
conduct
pursuant
and
to
state
obscenity.
Id.
statutes
352.
prohibiting
The
disorderly
plaintiff
sued
the
arresting officer for violating his Fourth Amendment rights and
First Amendment retaliation.
Id.
On appeal, the Sixth Circuit
held that the First Amendment “preclude[d] a finding of probable
cause because the laws cited . . . are either facially invalid,
vague,
or
overbroad
when
applied
to
speech
(as
opposed
to
conduct) at a democratic assembly where the speaker is not out
of order.”
Id. at 356.
The Court rejected an argument based on
DeFillippo, stating “no reasonable police officer would believe
that any of the . . . Michigan statutes . . . are constitutional
as applied to Leonard’s political speech during a democratic
assembly.”
Id. at 359. 7
The Sixth Circuit appears to be alone amongst the circuits
in
recognizing
any
restrictions
on
speech
that
meet
the
DeFillippo exception.
In Vives v. City of New York, 405 F.3d
115
the
(2nd
Cir.
2004),
Second
Circuit
held
the
defendants
could rely on the presumptive validity of a statute prohibiting
7
Notably, Judge Sutton dissented, believing that DeFillippo
compelled a contrary result. Leonard, 477 F.3d at 365.
12
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aggravated
sending
Date Filed: 04/29/2011
harassment
religious
governor.
when
they
literature
Id. at 118.
Page: 13 of 19
arrested
to
a
the
plaintiff
candidate
for
for
lieutenant
In Cooper v. Dillon, 403 F.3d 1208 (11th
Cir. 2005), the Eleventh Circuit rejected the argument that a
statute
pursuant
making
to
an
it
illegal
internal
to
publish
investigation
information
of
a
law
obtained
enforcement
officer was so grossly and flagrantly unconstitutional that the
arresting
officer
Id. at 1220.
(D.C.
Cir.
should
have
known
it
was
unconstitutional.
And in Lederman v. United States, 291 F.3d 36
2002),
the
D.C.
Circuit
held
that
a
regulation
banning leafleting on a public sidewalk was not so grossly and
flagrantly unconstitutional that officers should have recognized
its flaws.
Id. at 47.
These cases establish that the possible
exception recognized in DeFillippo does not apply merely because
a person alleges a violation of his First Amendment rights.
C.
Under DeFillippo, Mora had probable cause to believe that
Harrison was breaking a presumptively valid law, unless the law
was “so grossly and flagrantly unconstitutional that any person
of
reasonable
DeFillippo,
Harrison’s
443
prudence
would
U.S.
38.
argument
at
amounts
be
bound
Although
to
§ 18.2-388 meets this exception.
13
the
to
see
not
framed
claim
that
its
flaws.”
as
Virginia
such,
Code
Harrison relies on Leonard for
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the
Document: 43
proposition
accordance
Date Filed: 04/29/2011
that
with
officers
clearly
Page: 14 of 19
“can
only
established
regardless of the text of the statute.”
Brief
at
believe
47.
“No
that
Va.
written . . . .”
one,”
Harrison
Code
§ 18.2-388
apply
a
statute
constitutional
in
law
Appellant’s Opening
asserts,
should
“could
be
reasonably
applied
as
Id. at 26.
Harrison’s reliance on Leonard is misplaced.
The Sixth
Circuit there explained that in light of the “prominent position
that free political speech has in our jurisprudence and in our
society, it cannot be seriously contended that any reasonable
peace officer, or citizen, for that matter, would believe that
mild profanity while peacefully advocating a political position
could constitute a criminal act.”
Leonard, 477 F.3d at 361.
Unlike the plaintiff in Leonard, Harrison was not arrested for
voicing a mild profanity while advocating a political position
at a democratic assembly.
Mora’s decision to arrest Harrison
therefore cannot be similarly evaluated.
Moreover,
Leonard
does
not
support
the
proposition
that
officers may disregard the text of a statute in preference for a
constitutional
interpretation.
On
the
contrary,
courts
have
consistently recognized that police officers may rely on the
presumptive validity of statutes.
See, e.g., Cooper, 403 F.3d
at 1220 (noting that the officer “was entitled to assume that
the
current
[statute]
was
free
14
of
constitutional
flaws.”);
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Connecticut ex rel. Blumenthal v. Crotty, 346 F.3d 84, 105 (2d
Cir. 2003) (“Officials charged with enforcing a statute on the
books . . . are generally entitled to rely on the presumption
that
all
relevant
legal
and
constitutional
issues
have
been
considered and that the statute is valid.”); Grossman v. City of
Portland, 33 F.3d 1200, 1209 (9th Cir. 1994) (“[P]olice officers
on the street are ordinarily entitled to rely on the assumption
that . . . the ordinance is a valid and constitutional exercise
of
authority.”).
Thus,
Leonard
does
not
support
Harrison’s
claim that Mora’s reliance on a presumptively valid statute was
unreasonable.
Although Harrison makes a compelling argument that Virginia
Code § 18.2-388 is unconstitutional, he fails to show that it is
so grossly and flagrantly unconstitutional that Mora should have
anticipated
its
invalidation.
We
hold
that
Virginia
Code §
18.2-388 does not satisfy the possible exception identified by
DeFillippo.
443 U.S. at 38.
Mora therefore had probable cause
to believe that Harrison violated a presumptively valid state
law. 8
8
Because we hold that Mora could have had probable cause
under Virginia Code § 18.2-388, we need not determine whether he
also could have had probable cause under Virginia Code § 18.2415 or § 18.2-416.
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D.
This determination disposes of all Harrison’s claims for
judgment as a matter of law.
seizure
claim,
we
have
With regard to Harrison’s illegal
recognized
that
police
may
arrest
an
offender even for a “very minor criminal offense” so long as the
Figg v. Schroeder, 312
seizure is supported by probable cause.
F.3d 625, 636 (4th Cir. 2002).
With regard to Harrison’s false
arrest claim, “there is no cause of action for ‘false arrest’
under section 1983 unless the arresting officer lacked probable
cause.”
Street
v.
Surdyka,
492
F.2d
368,
372-73
(4th
Cir.
1974).
Harrison concedes that “[i]f the Court finds probable cause
or
reasonable
excessive
suspicion
force
existed,
fails.”
.
.
.
Appellant’s
his
appeal
Reply
Brief
regarding
at
25.
Finally, Harrison was not entitled to judgment as a matter of
law
on
his
state
law
claims
for
assault
and
battery.
See
DeChene v. Smallwood, 226 Va. 475, 481, 311 S.E.2d 749, 752 (Va.
1984) (officer could not be subjected to civil liability for
false imprisonment or assault and battery when the officer acted
in good faith and with probable cause).
Thus, the district
court did not err in denying Harrison’s motion for judgment as a
matter of law.
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III.
Harrison
failing
to
next
argues
instruct
that
the
the
jury
as
district
to
court
the
erred
in
constitutional
limitations on the application of state law.
We
review
construed
as
jury
a
instructions
whole,
properly
to
determine
informed
whether
the
jury
of
they,
the
controlling legal principles without misleading or confusing the
jury.
Hartsell v. Duplex Prods., Inc., 123 F.3d 766, 775 (4th
Cir. 1997).
“A judgment will be reversed for error in jury
instructions
only
if
the
error
is
determined
to
have
been
prejudicial, based on a review of the record as a whole.”
Id.
(citation and quotation marks omitted).
Here, Harrison argues that the jury was misled because it
received instructions that permitted it to find probable cause
to arrest on the basis of Virginia Code § 18.2-388 alone, which
by its terms allows for an unconstitutional arrest.
Harrison
recognizes
proposed
that
instructions
the
that
district
reflected
limited by court precedent.”
court
the
submitted
statutes
“as
his
they
had
been
Appellant’s Opening Brief at 61.
Harrison contends, however, that by submitting the statutes to
the jury separately, the district court “allowed the jury to
find against [him] on an unconstitutional basis.”
Harrison
court’s
points
submitting
to
no
statutes
case
to
17
finding
a
jury.
error
Id.
in
Insofar
a
district
as
Harrison
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argues that the district court allowed the jury to find probable
cause to arrest under an unconstitutional statute, he has not—
for the reasons stated above—shown that the district court’s
instruction
Indeed,
was
the
erroneous.
inclusion
of
See
DeFillippo,
Harrison’s
443
proposed
U.S.
at
37.
instructions,
potentially limiting the scope of probable cause, could only
have benefited him.
Harrison consequently fails to show that
the district court erred in its instructions to the jury, which
adequately stated the controlling law.
See Sturges v. Matthews,
53 F.3d 659, 662 (4th Cir. 1995) (refusing to reverse alleged
error in instructions when they “contained an adequate statement
of the law to guide the jury’s determination”).
IV.
In sum, we hold that Virginia Code § 18.2-388 is not “so
grossly
and
reasonable
flagrantly
prudence
unconstitutional
would
DeFillippo, 443 U.S. at 38.
be
bound
that
to
any
see
person
its
of
flaws.”
The statute could therefore provide
a basis for Officer Mora to have probable cause to believe that
Harrison
was
violating
a
presumptively
valid
state
law.
Harrison was thus not entitled to judgment as a matter of law.
For the same reason, the district court did not err in failing
to instruct the jury on the constitutional limitations of the
18
Appeal: 09-2202
Document: 43
Date Filed: 04/29/2011
application of state law.
Page: 19 of 19
The judgment of the district court is
accordingly
AFFIRMED.
19
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