Noel v. Artson

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CHARLES RAYMOND NOEL; JACOB 

RALPH NOEL, Individually and as

Personal Representative of the

Estate of Cheryl Lynn Noel;

RAMONA SCHWEIGER, To The Use

of Matthew Noel,

Plaintiffs-Appellants,

v.

CARLOS ARTSON, Officer, Badge  No. 09-1562

No. 3836; DAVID SWEREN, Officer,

Badge #3794; MICHAEL GIDDINGS,

Officer, Badge #3305; MARK

CRUMP, Sergeant, Badge #3389;

ROBERT M. GIBBONS, Sergeant,

Badge #3904; BALTIMORE COUNTY,

MARYLAND,

Defendants-Appellees.



Appeal from the United States District Court

for the District of Maryland, at Baltimore.

William M. Nickerson, Senior District Judge.

(1:06-cv-02069-WMN)

Argued: March 25, 2011

Decided: June 2, 2011

Before TRAXLER, Chief Judge, and WILKINSON and

WYNN, Circuit Judges.

2 NOEL v. ARTSON

Affirmed by published opinion. Judge Wilkinson wrote the

opinion, in which Chief Judge Traxler joined. Judge Wynn

wrote an opinion concurring in the judgment.

COUNSEL

ARGUED: Terrell Roberts, ROBERTS & WOOD, Riverdale,

Maryland, for Appellants. Paul M. Mayhew, BALTIMORE

COUNTY OFFICE OF LAW, Towson, Maryland, for Appel-

lees. ON BRIEF: John E. Beverungen, County Attorney,

Adam M. Rosenblatt, Assistant County Attorney, BALTI-

MORE COUNTY OFFICE OF LAW, Towson, Maryland, for

Appellees.

OPINION

WILKINSON, Circuit Judge:

After a nine-day trial, a jury found that police officers car-

rying out a search warrant for narcotics did not violate the

Fourth Amendment when they performed a no-knock entry

into a residence and fatally shot a woman with a gun therein.

The woman’s family and estate now allege that a variety of

instructional and other errors taint that verdict. But the charge

provided a complete and accurate statement of the law and

afforded plaintiffs ample latitude to argue their case. Finding

no other reason for reversal, we affirm the judgment of the

district court.

I.

The unfortunate events that led to this lawsuit began when

a Baltimore County police officer noticed a plastic bag with

white dust in the car of Matthew Noel during an October 2004

traffic stop. Matthew, an eighteen-year-old who lived at home

NOEL v. ARTSON 3

with his parents Charles and Cheryl Noel, admitted to having

a Percocet abuse problem. In the following months, Baltimore

County Sergeant Robert Gibbons, a narcotics investigator,

examined the trash left outside for pickup at the Noel resi-

dence and discovered additional drugs and drug parapherna-

lia. On January 19, 2005, Sgt. Gibbons successfully applied

for a search warrant for the Noel home.

Sgt. Gibbons consulted with the supervisors of the Balti-

more County SWAT Team and decided that a no-knock entry

was appropriate. Gibbons testified that he was concerned for

the safety of the SWAT officers executing the warrant, and

thought that knocking and announcing their presence might

put them in danger for three reasons: (1) Charles Noel had a

thirty-year-old conviction for second-degree murder; (2) on

December 18, 2004, shortly before the search of the Noel

house, Matthew was charged with attempted first-degree mur-

der for shooting a man in the foot at a convenience store,

though the charge was eventually reduced to first-degree

assault; and (3) there were guns registered to Cheryl and her

other son Jacob at the Noels’ address.

On January 21 around 4:30 a.m., the team of fifteen offi-

cers approached the Noels’ residence. The officers breached

the front door with a battering ram and then deployed a flash-

bang grenade outside of the house to distract the occupants

momentarily. The officers testified that as soon as they

entered the house, one officer announced "Police — Search

Warrant" and continued to do so as the officers proceeded

upstairs and approached Charles and Cheryl’s bedroom.

Charles and his neighbors, however, testified that they heard

the explosion from the grenade but never heard any police

announcements.

Less than five seconds after the SWAT team entered the

house, Officer Carlos Artson entered Charles and Cheryl

Noel’s bedroom. There, he testified that he found Cheryl spin-

ning toward him holding a revolver. Officer Artson then

4 NOEL v. ARTSON

immediately fired two shots, hitting Cheryl in the left shoul-

der and the right breast. She then slumped to the floor near the

foot of the bed. Artson ordered Cheryl to drop the gun several

times, but even when Cheryl eventually released it, the gun

remained only eight inches from her right arm.

The parties agree that Officer Artson then ordered Cheryl

to move her hand away from the gun, but what happened after

that order was hotly contested. Artson testified that Cheryl

looked "like she’s trying to make a choice, make a decision,"

and that she moved her hand back towards the gun. Charles,

however, insisted that Cheryl never made any movement

toward the gun. At that point, Officer Artson shot her in the

chest. The coroner testified that Cheryl might have survived

the first two shots, but could not have recovered from the

third shot, which pierced her heart.

Cheryl’s family brought this suit against Officer Artson and

the rest of the SWAT team under 42 U.S.C. § 1983, claiming

that the officers violated her Fourth Amendment rights by

failing to knock and announce their presence, by executing

the search warrant unreasonably, and by using excessive

force. The officers moved for summary judgment. On Sep-

tember 6, 2007, the district court denied the officers’ motion.

We dismissed the officers’ appeal in 2008, holding that they

had waived the defense of qualified immunity by failing to

raise it in their motion for summary judgment. See Noel v.

Artson, 297 F. App’x 216 (4th Cir. 2008).

After a nine-day trial, the district court instructed the jury

as follows:

[T]he plaintiffs claim that the defendants acted

unreasonably, and in violation of Cheryl Noel’s con-

stitutional rights, in the manner of the execution of

the warrant. And that is by deliberately avoiding the

knock-and-announce rule or procedure before enter-

ing the residence, and by subjecting Ms. Noel to

NOEL v. ARTSON 5

unreasonably excessive and/or deadly force after

they entered. . . . So you should consider all the evi-

dence presented in relation to the method used in

executing the search warrant in reaching a decision

as to whether the plaintiff has proven a violation of

the Fourth Amendment rights.

And with regard to the plaintiffs’ claims of loss

and damages resulting from the alleged excessive

and/or deadly force used against Cheryl Noel, you’re

instructed that a law enforcement officer may only

employ that amount of force which is reasonably

necessary under the particular circumstances sur-

rounding the execution of the search warrant. There-

fore, in determining whether the plaintiffs have

proven a deprivation of Ms. Noel’s Fourth Amend-

ment rights, and a resulting loss or damages under

this theory, you must determine whether the amount

of force used against Ms. Noel exceeded that which

a reasonable officer would have employed in execut-

ing a warrant under similar circumstances.

In this regard, you consider all of the attending

and surrounding circumstances including the nature

and severity of the crime at issue, whether Ms. Noel

posed an immediate threat to the safety of any of the

officers or others, and whether she was actively

resisting or attempting to interfere with a lawful exe-

cution of the search warrant. The defendant, or the

particular officer whose actions or omissions you are

considering, need only have acted or failed to act

within a range of conduct considered to be reason-

able.

Reasonableness of an officer’s conduct in execut-

ing a search warrant, including the use of force . . .

must be judged from the perspective of a reasonable

officer on the scene, and not with the 20/20 vision of

6 NOEL v. ARTSON

hindsight. The test of reasonableness must allow for

the fact that police officers are often forced to make

split-second judgments in circumstances that are

tense, uncertain and rapidly evolving with respect to

the means and amount of force that is reasonable and

necessary in any particular situation.

On March 30, the jury returned a verdict for the officers on

all counts, and the district court later denied the Noels’

motion for a new trial. The Noels now appeal.

II.

The case before us presents numerous assignments of error.

No doubt litigants in a hotly contested jury trial become

invested in their case and losers often leave convinced that

only serious errors on the part of the trial court would have

allowed the jury to return the verdict that it did. In this case,

however, the trial was conducted more than capably and pro-

vided ample reason for an appellate court to sustain a verdict

on behalf of either party.

The first set of challenges relates to the jury instructions,

which we review holistically and through the prism of the

abuse of discretion standard. The Supreme Court has

instructed that "a single instruction to a jury may not be

judged in artificial isolation, but must be viewed in the con-

text of the overall charge." Henderson v. Kibbe, 431 U.S. 145,

153 n.10 (1977). It is easy enough to pick at words, phrases,

and sentences in a charge, but that overlooks the fact that the

charge in its totality was what the jury heard. A jury verdict,

moreover, represents a good deal of work on the part of a

good many people, and the instructions undergirding that col-

lective effort should not succumb lightly to semantic fencing.

Accordingly, we simply determine "whether the instructions

construed as a whole, and in light of the whole record, ade-

quately informed the jury of the controlling legal principles

without misleading or confusing the jury to the prejudice of

NOEL v. ARTSON 7

the objecting party." Bailey v. Cnty. of Georgetown, 94 F.3d

152, 156 (4th Cir. 1996) (quoting Spell v. McDaniel, 824 F.2d

1380, 1395 (4th Cir. 1987)).

The party challenging the jury instructions faces a heavy

burden, for "we accord the district court much discretion" to

fashion the charge. Teague v. Bakker, 35 F.3d 978, 985 (4th

Cir. 1994). A district court will be reversed for declining to

give an instruction proposed by a party only when the

requested instruction "(1) was correct; (2) was not substan-

tially covered by the court’s charge to the jury; and (3) dealt

with some point in the trial so important, that failure to give

the requested instruction seriously impaired" that party’s abil-

ity to make its case. United States v. Lighty, 616 F.3d 321,

366 (4th Cir. 2010) (quotation omitted).

III.

The Noels argued at trial that Officer Artson used excessive

force when he shot Cheryl Noel, and in particular that the

third shot was unreasonable. On appeal, their chief contention

is that the district court abused its discretion by refusing to

give a jury instruction that highlighted the issue of the third

shot’s reasonableness: "[E]ven if you decide that the initial

use of force was reasonable . . . you must also consider

whether the third shot was a reasonable use of force. The

force used at the beginning of an encounter may not be justi-

fied even seconds later if the justification for the initial use of

force has abated." The Noels argue that their instruction was

correct, not covered by the district court’s charge, and neces-

sary in light of this Court’s decision in Waterman v. Batton,

393 F.3d 471, 481 (4th Cir. 2005). But the claim that the dis-

trict court abused its discretion here falls flat for several rea-

sons.

A.

For starters, the district court’s charge covered the appro-

priate legal standard and left counsel more than enough room

8 NOEL v. ARTSON

to argue the facts in light of that standard. Following the pat-

tern jury instructions, the district court submitted the case to

the jury under the general rubric of reasonableness. The entire

charge embodied this simple query: Did the officers act rea-

sonably or did they not? This is indisputably the correct stan-

dard, for "all claims that law enforcement officers have used

excessive force . . . should be analyzed under the Fourth

Amendment and its ‘reasonableness’ standard." Graham v.

Connor, 490 U.S. 386, 395 (1989).

Quite aside from being a correct statement of the law, the

reasonableness instruction left the attorneys ample room to

argue their case. For example, counsel for the Noels offered

a spirited closing argument that the justification for using

deadly force on Cheryl Noel did not apply to the third shot

because she was already incapacitated and no longer pre-

sented a threat. This is what good jury instructions often

do—let counsel argue factually in terms of a legal standard,

rather than having the judge make counsel’s particularized

arguments for them. This approach rightly indicates that "dis-

trict judges are not required to comment on the evidence, and

their refusal to single out any particular item of evidence is

often a sensible approach to evenhandedness in the presenta-

tion of the law." Duke v. Uniroyal, Inc., 928 F.2d 1413, 1421

(4th Cir. 1991). The district court in this case successfully

avoided tilting the game board to one side.

The Noels insist, however, that the absence of this third-

shot instruction impaired their "ability to counter repeated

suggestions that Artson was not only justified in firing at the

outset of the encounter, but also that he could have kept on

shooting." Brief of Appellants at 30. In their view, only the

district court could keep the jury from accepting this contami-

nated account of reasonableness. But as we have explained,

the trial court need not bear the burden of highlighting helpful

arguments nor of marginalizing harmful ones. At trial, the

adversary system remains the best disinfectant.

NOEL v. ARTSON 9

There were good lawyers on both sides of this case, and

they both took advantage of ample opportunities to present

their version of the facts to the jury. We see no reason to

doubt that "the instructions construed as a whole, and in light

of the whole record, adequately informed the jury of the con-

trolling legal principles." Bailey, 94 F.3d at 156. In sum, the

adversary system worked well.

B.

The Noels argue that despite the breadth of the district

court’s instruction and their own ability to argue the theory of

their case, the district court nevertheless erred in not giving an

instruction based on Waterman v. Batton, 393 F.3d 471, 481

(4th Cir. 2005). In their view, the "failure to give the

requested instruction seriously impaired" their ability to per-

suade the jury, Lighty, 616 F.3d at 366, because the language

from Waterman would have had more force coming from the

trial judge.

This argument fails because it fundamentally misconceives

the role of appellate opinions like Waterman. Such opinions

are not jury instructions, nor are they meant to be. Rather,

they articulate general principles of law that decide cases. Of

course appellate opinions may guide a district judge’s discre-

tion when formulating jury instructions, or even bear upon the

formation of pattern instructions. But they are by no means

intended to preempt a district judge’s discretion to formulate

a suitable charge for a specific trial, for "courts must have the

flexibility in instructions to avoid confusing or prejudicial

statements that might arise from a discussion of the specific

contentions in a case." Hardin v. Ski Venture, Inc., 50 F.3d

1291, 1294-95 (4th Cir. 1995). Accordingly, we do not

require district courts to parse our opinions for every possible

instructional command.

Indeed, this case illustrates why appellate opinions cannot

mechanically supply jury instructions, for Waterman dealt

10 NOEL v. ARTSON

with a completely different factual scenario. There, plaintiffs’

decedent was attempting to flee in his car from pursuing

police officers when he approached a line of vehicles slowing

for a toll booth. 393 F.3d at 474. Several police officers

emerged from the toll plaza on foot and stood near his car’s

projected path. When the fleeing vehicle accelerated toward

the officers, they opened fire as the car approached them.

Even after the vehicle passed them, the officers continued to

fire from the side and from behind the car despite the fact that

it was no longer a threat to run them over. Id. at 474-75. It

was in that context we held that "force justified at the begin-

ning of an encounter is not justified even seconds later if the

justification for the initial force has been eliminated." Id. at

481. That is a far cry from the situation confronted by Officer

Artson, for the threat he faced remained in the very same

room with a firearm still close at hand.

The Noels appear to have recognized that Waterman is

inapposite to this case, for in their proposed jury instruction,

they altered the language borrowed from that case. Our hold-

ing in Waterman was premised on the threat being "elimi-

nated;" this term reflected the fact that in Waterman, the car

that posed the threat to the officers had already driven past

them, thus ending the officers’ need to defend themselves

with deadly force. The Noels’ instruction, by contrast, stated

that force is no longer justified "if the justification for the ini-

tial force has abated." This word choice is certainly more in

keeping with the Noels’ theory of the case, for at the time of

the third shot, the threat posed by Cheryl Noel certainly had

not been "eliminated:" she was still in the room and, accord-

ing to the Noels, still alive and near her firearm. But it was

not an abuse of discretion for the district judge to decline to

adopt the actual language from an inapposite case, and there

is certainly no error in declining to massage that language to

make it friendlier to one party.

NOEL v. ARTSON 11

IV.

The Noels’ second claim relates to a series of requested

instructions governing the manner in which the officers exe-

cuted the search warrant.

A.

The first manner-of-execution instruction requested by the

Noels indicated that the jury should consider "whether the

manner in which the officer executed the search warrant was

reasonable." The requested instruction then set forth a list of

factors for the jury to take into account, including "Ms. Noel’s

interests [in] security, the right to bear arms for her own pro-

tection, and the right not to be killed for simply defending her

family." The Noels contend that such an instruction was nec-

essary because while the district court addressed the need for

the no-knock entry itself to be reasonable, it did "not address

Noel’s contention that the manner in which the officers exe-

cuted the warrant after they crossed the threshold was unrea-

sonable under the Fourth Amendment." Brief of Appellants at

36. In their view, "[c]ounsel was not free to argue that the

officers’ tactics in executing the warrant at night, deploying

a flash bang grenade, and doing things in a way to prevent the

Noels from hearing and comprehending that the police had

entered the house or allowing Ms. Noel to disarm was unrea-

sonable under the Fourth Amendment." Reply Brief of Appel-

lants at 9.

This contention is without merit. The district court’s

instructions discussed at length the need for both the entry

itself and the officers’ post-entry conduct to be reasonable.

After addressing reasonableness in the context of the no-

knock entry, the court then instructed the jury that it "should

consider all the evidence presented in relation to the method

used in executing the search warrant." The court then stated

that the "[r]easonableness of an officer’s conduct in executing

a search warrant, including the use of force . . . must be

12 NOEL v. ARTSON

judged from the perspective of a reasonable officer on the

scene, and not with the 20/20 vision of hindsight." Reviewed

in their entirety, the jury instructions made clear that the rea-

sonableness requirement governed the search as a whole, not

just one segment of it.

Again, the district court provided here a complete and accu-

rate framework within which counsel could argue their view

of the facts. This approach is particularly appropriate with

respect to the Fourth Amendment’s reasonableness standard,

which requires a careful analysis of the "facts and circum-

stances of each particular case." Graham, 490 U.S. at 396. As

the district court noted, the Noels "were free to argue, and did

strenuously argue, the numerous ways in which they believed

Defendants’ methods were unreasonable." JA 1206. We can-

not say that the district court erred in declining to make these

arguments on counsel’s behalf.

B.

Next, the Noels claim that the district court erred in not

instructing the jury that Cheryl Noel "had a right to possess

the gun in her home and to have it available as she deemed

fit for her own protection." While the Noels assert that the

failure to give this instruction impeded their argument that

"the officers failed to adjust their method of entry to account

for the fact that she had a right to bear arms and use a gun for

her protection," Brief of Appellants at 37, we find this conten-

tion unconvincing.

It can hardly be maintained that the requested instruction

addressed a "point in the trial so important, that failure to give

the requested instruction seriously impaired" the Noels’ abil-

ity to present their case to the jury. Lighty, 616 F.3d at 366.

Cheryl Noel’s right to own and use a gun was not a central

issue in this case, and in any event was uncontested.

Moreover, we cannot fault the district court for declining to

give a wink and a nod to the jury by singling out this piece

NOEL v. ARTSON 13

of evidence. We have noted that a "court is not required to

comment on specific evidence in the course of giving a jury

instruction, and indeed often is well-advised not to." Hardin,

50 F.3d at 1294. As discussed above, the district court prop-

erly submitted this case to the jury under the general rubric of

reasonableness, and counsel were free to argue (and indeed

did argue) that the officers failed to take Cheryl Noel’s per-

fectly legal gun possession into account when executing the

search warrant. But "[w]here, as here, the instructions accu-

rately covered all the issues in the case, the failure to refer-

ence specific aspects of a party’s contentions . . . cannot serve

as a basis for a finding of error." Id. at 1295.

C.

Finally, the Noels challenge the district court’s failure to

instruct the jury that a "police officer, before using deadly

force, must give a warning, if feasible, to provide a person the

opportunity to recognize that it is an officer and to comply

with any commands that the officer may give." But this claim

falls short for the reasons that led to the rejection of the

Noels’ earlier assignments of error.

Excessive-force claims, like other manner-of-execution

claims, "should be analyzed under the Fourth Amendment and

its ‘reasonableness’ standard." Graham, 490 U.S. at 395.

"[P]roper application" of that standard "requires careful atten-

tion to the facts and circumstances of each particular case,"

and whether or not police have given a warning before using

deadly force is one of those facts and circumstances. Id. at

396.

We cannot hold that the district court abused its discretion

by declining to single out this additional piece of evidence.

We have always left "the choice between generality versus

specificity in the charge . . . to the sound discretion of the trial

courts." Hardin, 50 F.3d at 1294-95. The court’s general rea-

14 NOEL v. ARTSON

sonableness charge left counsel perfectly able to present the

specific failure-to-warn argument to the jury by themselves.

V.

The Noels next contend that the district court erred by

allowing Dan Rose, a Baltimore County tactical training offi-

cer, to testify at trial. Officer Rose, who was Baltimore Coun-

ty’s designated witness for the SWAT Team’s training,

personally trained Officer Artson. At trial, he testified to the

training he provided Artson in "shoot/no-shoot scenarios" and

provided a demonstration used in Artson’s training meant to

illustrate the so-called "reactionary gap" effect. The Noels

objected to Officer Rose’s testimony in general and in partic-

ular to his presentation of the reactionary gap demonstration,

but the district court overruled both objections.

A.

First, the Noels claim that the district court erred by allow-

ing Officer Rose to give his opinion regarding the propriety

of Officer Artson’s use of force despite not having personal

knowledge of the events in question and not being disclosed

as an expert witness as required by Fed. R. Civ. P.

26(a)(2)(A). But this claim faces several difficulties.

First of all, the party challenging the district court’s ruling

on the admissibility of evidence faces another heavy burden.

Evidentiary rulings are reviewed under the well-known abuse

of discretion standard, and "we will only overturn an evidenti-

ary ruling that is arbitrary and irrational." United States v.

Cole, 631 F.3d 146, 153 (4th Cir. 2011) (quotation omitted).

And here, the district court did not abuse its discretion. Offi-

cer Rose had personal knowledge of Officer Artson’s training

in this sort of scenario because Officer Rose had actually

trained him. Indeed, the Noels acknowledge that on direct

examination, "Officer Rose’s testimony provided only broad

training scenarios," Brief of Appellants at 40, scenarios that

NOEL v. ARTSON 15

were actually used in Officer Artson’s training. The district

court also repeatedly scrutinized the questioning of Officer

Rose to ensure that he provided only factual testimony regard-

ing Officer Artson’s training.

The Noels nevertheless seize on a response given by Offi-

cer Rose on cross-examination to show that he offered imper-

missible opinion testimony. In response to a question about

whether Officer Artson could have grabbed Cheryl Noel’s

gun after she had been shot twice, Officer Rose explained that

even a shot to the heart would not incapacitate a person until

thirty-to-sixty seconds later. He then stated that Officer Art-

son "went above and beyond and stopped during a lethal con-

frontation and continued to try and get her to not go for that

gun. So he went above and beyond our training, sir." Even if

this one response were impermissible lay opinion testimony,

not grounded in Officer Rose’s personal knowledge of Officer

Artson’s training, it was harmless in the context of the volu-

minous testimony offered during the course of the entire trial.

Moreover, it was on cross-examination that the Noels’ own

counsel "invited the error and therefore it provides no basis

for reversal." United States v. Neal, 78 F.3d 901, 904 (4th Cir.

1996). We thus cannot hold that the district court’s decision

to admit this testimony was "arbitrary and irrational." Cole,

631 F.3d at 153.

B.

Next, the Noels assert that the district court abused its dis-

cretion by allowing Officer Rose to demonstrate the reaction-

ary gap effect with the jury. In this demonstration, Rose asked

the members of the jury to hold their hands six inches apart

while he held his even farther apart, and then asked them to

clap their hands together before he could clap his. Rose

explained after the demonstration that "you can’t, because of

that reactionary gap." He further explained that in SWAT

training, "this is what I teach these folks . . . if we come

across someone who has a weapon that’s in a low ready posi-

16 NOEL v. ARTSON

tion, and by the time the flick of a wrist occurs and that round

is fired, it’s too late."

First, the Noels contend that Officer Rose’s demonstration

was an impermissible lay opinion. This claim fails, however,

because the demonstration was a training exercise that was

actually used in Officer Artson’s training. Assuming, how-

ever, that the method of its presentation through active jury

participation was error, we hold that it was harmless. The pre-

cise point could have been demonstrated in a number of other

ways that in fact would have been preferable to one involving

participation by the jurors themselves, but the demonstration

was a brief and minor part of the overall trial. Moreover, there

was no risk that the jury would confuse Officer Rose’s clap-

ping demonstration with an attempt to recreate the deadly

confrontation in the bedroom. To the contrary, Officer Rose

offered "a mere demonstration of a physical principle," which

we have recognized as unproblematic. See Gladhill v. General

Motors Corp., 743 F.2d 1049, 1051 (4th Cir. 1984).

Finally, assuming arguendo that the jury’s participation in

the demonstration was error, we do not think that the demon-

stration itself posed a substantial risk of unfair prejudice

under Fed. R. Evid. 403 to the plaintiffs on the grounds that

it "was a deliberate effort by a witness and comrade of the

officer on trial to gain favor with the jury." Brief of Appellants

at 47. All evidence introduced at trial attempts in some way

to gain the jury’s favor; otherwise a party would not offer it.

To be sure, Rule 403 is concerned with "the possibility that

the evidence will excite the jury to make a decision on the

basis of a factor unrelated to the issues properly before it."

Mullen v. Princess Anne Volunteer Fire Co., 853 F.2d 1130,

1134 (4th Cir. 1988). But evidence with an emotional valence

need only be excluded if there is "a genuine risk that the emo-

tions of the jury will be excited to irrational behavior, and that

this risk is disproportionate to the probative value of the

offered evidence." United States v. Ham, 998 F.2d 1247, 1252

(4th Cir. 1993) (quotation omitted). Here, there was no indica-

NOEL v. ARTSON 17

tion that Officer Rose’s demonstration of his training exercise

had the purpose or effect of influencing the emotions of the

jury or otherwise encouraging the jury to decide on an imper-

missible basis. For all of the above reasons, we find that any

error in allowing the jury to participate in the demonstration

was harmless. See Fed. R. Civ. P. 61 ("[T]he court must disre-

gard all errors and defects that do not affect any party’s sub-

stantial rights.").

VI.

Finally, the Noels contend that the district court erred by

failing to voir dire potential jurors on the subject of Charles

Noel’s thirty-year-old conviction for second-degree murder.

In their view, the murder conviction, which was one of the

three justifications offered by the officers for the no-knock

entry, "had a strong potential for juror bias" and "was an

essential part of the trial," Brief of Appellants at 51, and the

district court’s refusal to ask questions on this topic thus

deprived the Noels of their right to an impartial jury.

We are not persuaded. The Supreme Court has made clear

that "the trial court retains great latitude in deciding what

questions should be asked on voir dire." Mu’Min v. Virginia,

500 U.S. 415, 424 (1991). And while that discretion is not

infinite, "it is only a rare case in which a reviewing court will

find error in the trial court’s conduct." United States v. Hsu,

364 F.3d 192, 203 (4th Cir. 2004) (quotation omitted). The

district court need only question the venire so as to provide

"a reasonable assurance that prejudice would be discovered if

present." United States v. Lancaster, 96 F.3d 734, 740 (4th

Cir. 1996) (en banc) (quotation omitted).

We discern no abuse of discretion on voir dire, for Charles

Noel’s thirty-year-old conviction for second-degree murder

played at most a minor role in this case. The trial court is not

bound to ask members of the venire questions about every

evidentiary tangent or by-way, see, e.g., Ham v. South Caro-

18 NOEL v. ARTSON

lina, 409 U.S. 524, 527-28 (1973) (upholding a state trial

court’s refusal to ask voir dire questions regarding prejudice

against beards), and "[a]bsent a showing of compelling need

to propound such questions, we think the district judge clearly

correct in refusing them," Langley v. Turner’s Express, Inc.,

375 F.2d 296, 298 (4th Cir. 1967). We accordingly hold that

the district court’s refusal to ask questions regarding the mur-

der conviction demonstrated "reasonable restraint" in ques-

tioning that in no way prejudiced the Noels. Id. at 297.

VII.

Events at the Noel home on the evening in question took

a deeply regrettable turn. But the jury tasked with weighing

these sad happenings was not left in the dark. Over the course

of a nine-day trial, capable attorneys on each side thrashed out

the propriety of the officers’ actions before the body duly con-

stituted to assess them, and the district court properly

instructed that body in terms of the applicable standard of rea-

sonableness. Under these circumstances, we see no reason to

upset the jury’s conclusions. Because neither instructional

defects nor any other error undermines the verdict, we affirm

the judgment of the trial court.

AFFIRMED

WYNN, Circuit Judge, concurring in the judgment:

This Court’s review of jury instructions entails a relatively

simple inquiry: whether the district court’s instructions, con-

strued as a whole, accurately informed the jurors of the con-

trolling law without misleading or confusing them. In this

case, the district court was free to—and perhaps should

have—instructed the jury to the effect that force used at the

beginning of an encounter may not be justified later if the jus-

tification for the initial use of force has been eliminated. Nev-

ertheless, the charge that the district court did give accurately

stated the controlling law. For this reason, and because I agree

NOEL v. ARTSON 19

with my colleagues’ analysis as to the other issues on appeal,

I concur in the judgment.

I.

In this appeal, the Noels challenge, among other things,

aspects of the district court’s jury instructions. "Both the deci-

sion to give (or not to give) a jury instruction and the content

of an instruction are reviewed for abuse of discretion."*

United States v. Russell, 971 F.2d 1098, 1107 (4th Cir. 1992).

Through this deferential lens, we look to "whether the district

court’s instructions, construed as a whole, properly informed

the jury of the controlling legal principles without misleading

or confusing the jury." Hartsell v. Duplex Prods., 123 F.3d

766, 775 (4th Cir. 1997). Stated differently, "[s]o long as the

charge is accurate on the law and does not confuse or mislead

the jury, it is not erroneous." Hardin v. Ski Venture, Inc., 50

F.3d 1291, 1294 (4th Cir. 1995). This simple inquiry is the

heart of our review on an instruction appeal.

Given the nature of our inquiry, it is not surprising that

"[d]istrict courts are necessarily vested with a great deal of

discretion in constructing the specific form and content of

jury instructions." Id. at 1293. Accordingly, a district court

"is not required to comment on specific evidence in the course

of giving a jury instruction . . . ." Id. at 1294. "Similarly,

courts must have the flexibility in instructions to avoid con-

fusing or prejudicial statements that might arise from a dis-

cussion of the specific contentions in a case." Id. at 1294-95.

And a district court, in its broad discretion, is free to craft

instructions by looking to this Court’s opinions—so long as

*A district court will be reversed for refusing to give a requested

instruction only when the requested instruction "(1) was correct; (2) was

not substantially covered by the court’s charge to the jury; and (3) dealt

with some point in the trial so important, that failure to give the requested

instruction seriously impaired" that party’s ability to make its case. United

States v. Lighty, 616 F.3d 321, 366 (4th Cir. 2010) (internal quotation

marks omitted).

20 NOEL v. ARTSON

it does so in a manner that is faithful to the language of those

opinions and accurately characterizes applicable law. Cf. Jus-

tice v. Dennis, 793 F.2d 573, 576-78 (4th Cir. 1986), vacated

on other grounds, 490 U.S. 1087 (1989).

II.

The Noels first argue that the district court erred in refusing

to specifically instruct on the reasonableness of Officer Art-

son’s third and fatal shot in light of Waterman v. Batton, 393

F.3d 471 (4th Cir. 2005). Plaintiffs wanted the district court

to instruct that:

According to the evidence the first two shots were

fired close together and the third shot was fired later.

. . . [E]ven if you decide that the initial use of force

was reasonable . . . you must consider whether the

third shot was a reasonable use of force. The force

used at the beginning of an encounter may not be

justified even seconds later if the justification for the

initial use of force has abated. With respect to the

third shot as well, you must determine whether Mrs.

Noel’s response or lack of response to Officer Art-

son’s three commands to move away from the gun

justified Officer Artson’s shooting her a third time.

Instead of giving the requested instruction, the district court

instructed the jury that:

a law enforcement officer may only employ that

amount of force which is reasonably necessary under

the particular circumstances surrounding the execu-

tion of the search warrant. Therefore, in determining

whether the plaintiffs have proven a deprivation of

Ms. Noel’s Fourth Amendment rights, and a result-

ing loss or damages under this theory, you must

determine whether the amount of force used against

Ms. Noel exceeded that which a reasonable officer

NOEL v. ARTSON 21

would have employed in executing a warrant under

similar circumstances.

In this regard, you consider all of the attending

and surrounding circumstances including the nature

and severity of the crime at issue, whether Ms. Noel

posed an immediate threat to the safety of any of the

officers or others, and whether she was actively

resisting or attempting to interfere with a lawful exe-

cution of the search warrant. The defendant, or the

particular officer whose actions or omissions you are

considering, need only have acted or failed to act

within a range of conduct considered to be reason-

able.

The district court’s instructions accurately stated the appli-

cable law. See Graham v. Connor, 490 U.S. 386, 396 (1989)

(outlining the reasonableness standard governing the right to

be free from excessive force and noting that evaluating

whether law enforcement has used excessive force "requires

careful attention to the facts and circumstances of each partic-

ular case, including the severity of the crime at issue, whether

the suspect poses an immediate threat to the safety of the offi-

cers or others, and whether he is actively resisting arrest or

attempting to evade arrest by flight"). The same cannot be

said of the Noels’ proposed instruction.

In Waterman, on which the Noels’ instruction is admittedly

based, this Court indicated that force must be justified

throughout an encounter, stating:

To simply view all of the force employed in light of

only the information possessed by the officer when

he began to employ force would limit, for no good

reason, the relevant circumstances to be considered

in judging the constitutionality of the officer’s

actions. We therefore hold that force justified at the

beginning of an encounter is not justified even sec-

22 NOEL v. ARTSON

onds later if the justification for the initial force has

been eliminated.

Waterman, 393 F.3d at 481. Instead of adhering to Waterman

and its use of the word "eliminated," the Noels’ proposed

instruction used the amorphous "abated." "If a [Waterman]

instruction is given, it must be faithful to [Waterman]." Jus-

tice, 793 F.2d at 577. This alone blocks the Noels from suc-

cessfully arguing that the district court abused its discretion in

refusing to give their proffered instruction. See id.; Lighty,

616 F.3d at 366 (noting that a district court will be reversed

for refusing to give a proffered instruction, inter alia, when

the requested instruction was "correct").

Of course, the district court, in its broad discretion, could

have altered the Noels’ proposed instruction to accurately

reflect the Waterman holding. Giving such an instruction cer-

tainly would not have constituted an abuse of discretion—and

may well have been desirable. Indeed, as this Court recently

stated in a Section 1983 excessive force case, "precedent sug-

gests that it is possible to parse the sequence of events as they

occur; while a totality of circumstances analysis still remains

good law, if events occur in a series they may be analyzed as

such." Brockington v. Boykins, 637 F.3d 503, 507 (4th Cir.

2011) (citing Waterman, 393 F.3d 471, 477).

As noted in my colleagues’ opinion, the events at issue in

this case took place in a sequence—even if that sequence

occurred over a short span of time. Officer Artson entered the

Noels’ bedroom and found Cheryl Noel holding a revolver. At

that point, Officer Artson immediately fired two shots. Only

after at least some amount of time had passed and Cheryl

Noel had dropped her weapon did Officer Artson fire the third

and fatal shot. While the parties dispute whether Cheryl Noel

had moved her hand back toward her gun before the third shot

was fired, the shots nevertheless occurred in a sequence.

Under these circumstances, the district court could—and per-

haps should—have instructed the jury that force justified at

NOEL v. ARTSON 23

the beginning of an encounter is not justified later if the justi-

fication for the initial force has been eliminated. Waterman,

393 F.3d at 481. The district court’s decision not to do so,

however, and the accurate, if more general, instructions that

the court did give did not constitute an abuse of discretion.

III.

At the end of the day, this issue turns on neither the skill

of the Noels’ attorney nor the number of people who put

effort into trying the Noels’ case. Instead, the only relevant

inquiry is whether the jury instructions pass muster. Here,

they do. And while the district court was free to—and perhaps

should have—given the jury a charge based on Waterman v.

Batton to the effect that force used at the beginning of an

encounter may not be justified later if the justification for the

use of force has been eliminated, it was not an abuse of dis-

cretion for the district court to decline to do so. For this rea-

son, and because I agree with my colleagues’ analysis on the

other issues, I concur in affirming the district court’s judg-

ment.