Gary W. JUSTICE, Appellant, v. John W. DENNIS, individually and in his official capacity as North Carolina State Highway Patrolman, Appellee, 834 F.2d 380

K.K. HALL, Circuit Judge: Gary Wayne Justice, the plaintiff in a civil rights action brought pursuant to 42 U.S.C. § 1983, appeals from a judgment entered on a jury verdict in favor of the defendant, John W. Dennis. Justice also appeals the denial by the United States Magistrate of his motion for judgment notwithstanding the verdict (“JNOV”). Finding no error, we affirm. I. Justice was arrested on December 19, 1982, by Trooper W.B. Rose of the North Carolina Highway Patrol, who suspected that he was driving while under the influence of alcohol.

Rose transported Justice, first, to the Highway Patrol Office, where a Breathalyzer test, which revealed a high blood alcohol concentration, was administered and, subsequently, to the magistrate’s office in the Onslow County Courthouse. It is undisputed that during this time, Justice engaged in constant verbal abuse of the police officers present as well as active physical resistance. For this reason, Trooper Rose requested that Dennis, a fellow officer, accompany him from the Patrol Headquarters to the magistrate’s office to provide additional assistance, if necessary.

After a brief appearance, the magistrate found probable cause for Justice’s arrest and set bond at $150.00. When Rose and Dennis then attempted to move Justice to the booking area, he actively resisted, forcing Rose to push him down a hallway. In the booking area, Justice was placed in a small unlocked visitors’ room to await processing. Despite being ordered to remain in that room, Justice emerged and again confronted the officers. Although his hands were handcuffed behind his back, Justice kicked at both Rose and Dennis and spat in Dennis’ face.

Dennis admitted at trial that in an effort to regain control, he pushed Justice against the wall of the visitors’ room. Justice later claimed that the force of this push drove his face against the wall and cracked his front teeth. Justice continued to resist when he was brought back into the booking area. Viewing the struggle, Gary Dixon, an officer at the Jacksonville, North Carolina, Police Department, handed, without request, a can of chemical mace to Trooper Dennis, who sprayed it into Justice’s face. The spray ended Justice’s resistance and he was placed in a holding cell without further incident.

Dennis later conceded that he “could have ... probably subdued” Justice without the mace. Justice subsequently brought a civil rights action against Dennis pursuant to 42 U.S.C. § 1983, alleging that the officer’s “brutal and excessive force” had deprived him of liberty without due process of law. The parties consented to the jurisdiction of the United States magistrate pursuant to 28 U.S.C. § 636(

c) and the case came to trial on March 5, 1985. The jury returned a verdict in favor of the defendant and the magistrate denied Justice’s motion for JNOV. This appeal followed. II. On appeal, Justice contends that the magistrate’s instructions to the jury on the issue of constitutionally excessive force misstated the applicable standard and established an impermissibly high threshold for liability under

section 1983. Alternatively, Justice argues that reasonable men could not differ on the question of whether the use of chemical mace on a handcuffed prisoner amounts to constitutionally excessive force. We disagree with both contentions. At trial, Justice proposed the following instruction as the sole standard for assessing liability: The Plaintiff Gary Wayne Justice claims that excessive force was used by Defendant Dennis in connection with his arrest. A person, even if he is being lawfully arrested, has a constitutional right to be free of excessive force.

An officer is entitled to use such force as a reasonable person would think is required to take one into custody, and this may include such physical force as is reasonably necessary to subdue a person who is struggling with an officer. However, an officer is not allowed to use any force beyond that reasonably necessary to accomplish his lawful purpose. Thus if you find that Defendant used greater force than was reasonably necessary in the circumstances of this case, you must find that the Defendant is liable for a violation of the Plaintiffs constitutional rights.

The court declined to limit its instruction to the jury in that fashion and instead offered a lengthy instruction that included the following language: Members of the jury, you are instructed to use the following standard for determining the amount of force necessary to make the defendant liable. The force used by the officer is unconstitutionally excessive if the officer used a means so brutal, demeaning and harmful as literally to shock the conscience of a court.

You must determine whether the force applied caused injury so severe, was so disproportionate to the need presented and was so inspired by malice or sadism rather than a merely careless or unwise excess of zeal that it amounted to a brutal or inhumane abuse of official power literally shocking to the conscience. Although acknowledging that the magistrate's instruction was taken directly from this Court’s opinion in Hall v. Tawney, 621 F.2d 607 (4th Cir.1980), Justice argues that it was never expected that the formulation would be used to instruct a jury.

Rather, Justice contends, the language was intended to be utilized by a trial court in deciding whether the jurisdictional requirements of a

section 1983 action had been established and as a basis for ruling on motions to dismiss, for

summary judgment and for a directed verdict. We are not persuaded by appellant’s effort to restrict the effect of our prior decisions. Courts, including our own, have experienced some difficulty in defining the scope of liability for excessive force as a constitutional tort under

section 1983. See Kidd v. O'Neil, 774 F.2d 1252, 1253-54 (4th Cir. 1985). The dilemma has been complicated by the fact that claims of excessive force may arise in the context of the fourth, eighth, or as in this instance, the fifth amendment. Subtle efforts at distinction are, therefore, common in cases in this area. There are, nevertheless, certain basic principles in

section 1983 jurisprudence as it relates to claims of excessive force that are beyond question. Whether the factual circumstances involve an arres-tee, a pretrial detainee or a prisoner, it is clear that the agents of the state are permitted to exercise a certain degree of force in order to protect the interests of society. While liability may be assessed under

section 1983 when the limits of privileged force are exceeded, the threshold for that liability must be higher than that set for a normal tort action. To allow otherwise would offend the Supreme Court’s repeated determination that the due process clause is not intended to superimpose a “font of tort law” upon whatever systems may already be administered by the state. Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 666, 88 L.Ed.2d 662, quoting Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1976).

We accept without question Justice’s basic contention that constitutionally excessive force is force that is unreasonable under the circumstances. The jury’s inquiry is fact-based and must consider a number of factors, including “the need for the application of the force; ... the relationship between the need for the force and the amount of force used; ... [and] the extent of injury inflicted.” Bailey v. Turner, 736 F.2d 963, 970 (4th Cir.1984). The inquiry must not, however, cease at that point. The jury must also determine if the state actor has exceeded the bounds of privilege.

An instruction such as the one articulated in Bailey that directs the jury to consider whether the force “shocks the conscience” and appears to have been applied “maliciously and sadistically for the purpose of causing harm” is a rational, useful and widely-accepted method of focusing that inquiry. Whether the instruction is designated as a principal factor for consideration, as indicated in Bailey, or as a description of the level of conduct that overcomes the applicable privilege, as suggested in Kidd, makes little practical difference.

Under either rationale the jury must include the formulation in its deliberations. Certainly, it strains credulity to suggest that the jury should not consider these questions when the Supreme Court has recently held that the issue of liability for excessive force in at least one context turns on those factors. See Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 1085, 89 L.Ed.2d 251 (1986). We do not suggest that the instructions given at Justice’s trial were ideal. They were admittedly rambling and unnecessarily repetitive.

Certainly more precise and tightly structured instructions resembling those approved in Bailey would have been preferred. The question is not, however, whether better instructions were possible, but whether the instructions “taken as a whole, fairly and adequately statefd] the pertinent legal principles involved.” Chavis v. Finnlines Ltd. O/Y, 576 F.2d 1072 (4th Cir.1978). We conclude that they did. To the extent that any of our previous decisions, including Kidd, hold to the contrary, they are expressly overruled. III.

We also reject as meritless Justice’s contention that reasonable men could not differ regarding whether the use of mace on a handcuffed prisoner was constitutionally excessive force. In Bailey, we determined that the use of mace on an unruly prison inmate was not per se unconstitutional. 736 F.2d at 970. The question of liability turns upon the circumstances in which the mace was used. In this instance, Justice, although handcuffed, was under the influence of alcohol and obviously capable of strenuous physical resistance.

We do not believe that a rational jury was precluded from finding that the use of mace in these circumstances amounted to a reasonable effort to regain control over a violent and agitated arres-tee. IV. For the foregoing reasons, the judgment entered pursuant to the jury’s verdict is affirmed. AFFIRMED. . There was testimony at trial by Justice's dentist which suggested that Justice’s teeth, which had been damaged in an earlier accident, were particularly susceptible to further injury. .

Although Hall involved a substantive due process challenge to corporal punishment in the public schools rather than a true excessive force claim, the standard articulated in Hall was subsequently applied in King v. Blankenship, 636 F.2d 70 (4th Cir.1980). There can be no question that King, which dealt with allegations of improper conduct by prison officials, was an excessive force case. . We note that the instructions given the jury in this case expressly included a statement to that effect. .

Although Whitley dealt with an excessive force claim arising under the eighth amendment, we perceive no meaningful distinction between the scope of the jury’s inquiry in that situation and in a case involving an allegation of excessive force violating the fifth amendment rights of a pretrial detainee. In both circumstances, the jury must determine if the level of force used was so unreasonable as to exceed the privilege accorded the agents of the state who have been charged with maintaining order in penal institutions.