Timothy Hamilton Helsabeck v. MICHAEL A. FABYANIC, Individually

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-2244
TIMOTHY HAMILTON HELSABECK,
Plaintiff - Appellant,
versus
MICHAEL A. FABYANIC, Individually and as a
Deputy of the Sheriff of Frederick County,
Virginia,
Defendant - Appellee.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Glen E. Conrad, District
Judge. (CA-00-105-GEC)
Argued: November 30, 2005 Decided: March 30, 2006
Before MICHAEL and DUNCAN, Circuit Judges, and Walter D. KELLEY,
Jr., United States District Judge for the Eastern District of
Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Steven Mark Garver, GARVER LAW OFFICES, P.C., Reston,
Virginia, for Appellant. Carlene Booth Johnson, PERRY & WINDELS,
Dillwyn, Virginia, for Appellee. ON BRIEF: Deborah E. Mayer,
GARVER LAW OFFICES, P.C., Reston, Virginia; E. Eugene Gunter,
Winchester, Virginia, for Appellant.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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PER CURIAM:
Deputy Sheriff Michael Fabyanic shot Timothy Helsabeck in
the back while trying to arrest him for possession of marijuana.
Helsabeck brought this lawsuit against Fabyanic, asserting a claim
under 42 U.S.C. § 1983 for use of excessive force and a claim under
state law for battery. After a four day trial, a jury found that
Fabyanic used excessive force, but that he was entitled to
qualified immunity. The jury also found that Fabyanic did not
commit battery upon Helsabeck. The district court entered judgment
for Fabyanic, and Helsabeck appeals. Helsabeck argues that the
district court made several errors at trial, including the
submission of the qualified immunity issue to the jury. Finding no
reversible error, we affirm.
I.
On the evening of December 29, 1998, Helsabeck was
driving his pickup truck on Route 37, the western by-pass around
Winchester, Virginia. Fabyanic, a Frederick County Sheriff’s
Deputy, was driving his cruiser behind Helsabeck. Fabyanic
observed Helsabeck driving erratically and pulled him over.
Fabyanic approached Helsabeck’s pickup on foot and asked to see his
driver’s license and registration. According to Fabyanic,
Helsabeck appeared agitated and his hands were shaking. Fabyanic
ordered Helsabeck to exit and stand in front of the pickup so that

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Fabyanic could watch him while he (Fabyanic) ran a criminal history
check on Helsabeck. Fabyanic then conducted field sobriety tests
on Helsabeck, placed him in the back of the cruiser, and searched
his pickup. While conducting the search, Fabyanic learned from a
radio dispatcher that Helsabeck’s criminal history included
narcotics and weapons violations. Fabyanic then found a small
amount of marijuana in the pickup. At this point, he approached
Helsabeck, still seated in the back of the cruiser, and told him he
was placing him under arrest for possession of marijuana. Fabyanic
ordered Helsabeck to exit the cruiser and place his hands on the
cruiser’s roof.
The parties disagree about the sequence of events that
followed. Although there is no dispute that Helsabeck and Fabyanic
made physical contact with one another and that Fabyanic shot
Helsabeck in the back, the parties offer differing versions of the
surrounding events. Helsabeck contends he had his hands on the
roof of the car and waited to be handcuffed for what seemed to him
a long time, at least twelve seconds. Thinking he might be in
“harms way,” he turned around. J.A. 123. At this point he lost
his balance because the ground where he stood was uneven and
frozen. He tried to catch himself, but instead he hit Fabyanic
and, as a result, both men went down the slope into the ditch along
the side of the road. As Helsabeck tried to get up on all fours
and climb the hill, Fabyanic shot him in the back.

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Fabyanic, on the other hand, says that while he was
trying to handcuff Helsabeck, Helsabeck turned around, took a punch
at Fabyanic, grabbed Fabyanic around the waist, and drove his
shoulder into Fabyanic’s mid-section. Helsabeck then began forcing
Fabyanic backwards down the slope toward the ditch. During this
struggle, Fabyanic claims he felt something tugging at his holster
and thought that Helsabeck was trying to grab his gun. In
response, Fabyanic drew his gun and shot Helsabeck in the back.
Helsabeck was severely injured by the gunshot and became
a paraplegic. In December 2000 Helsabeck filed this suit against
Fabyanic under 42 U.S.C. § 1983, alleging that Fabyanic violated
his constitutional rights by using excessive force during the
arrest. He also asserted a state law battery claim against
Fabyanic. In May 2004 Fabyanic moved for summary judgment on all
claims and on the ground that he was entitled to the defense of
qualified immunity. On June 2, 2004, the district court denied
Fabyanic’s motion, concluding that there was a genuine issue of
material fact regarding the circumstances surrounding the use of
force.
The district court bifurcated the trial into liability
and damages phases. The liability phase was tried before a jury on
June 14-18, 2004. The district court made three evidentiary
rulings in connection with the trial that are at issue on appeal.
First, the district court excluded evidence offered by Helsabeck

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concerning Fabyanic’s actions during arrests of other individuals.
Second, the court allowed testimony from Dr. Ashley Tucker,
Helsabeck’s treating physician following the incident. Dr. Tucker
testified that in the course of treating Helsabeck, Helsabeck
spontaneously stated that he had “tried to get the gun away, before
he was shot, from the police officer.” J.A. 304. Third, the court
allowed evidence showing that Helsabeck was convicted of felony
assault and battery in Virginia state court as a result of the
altercation with Fabyanic. Prior to admitting evidence of the
conviction, the court warned the jury:
The defendant’s counsel intends to ask the plaintiff
about a state criminal proceeding, [in] which the
plaintiff was a defendant as a result of this incident.
And he was, indeed, convicted of a state criminal act
because of this incident. I tell you that this testimony
and this line of questioning should not be taken as
evidence by you that one side, that it should not be
deemed dispositive of the issues in this case. Indeed,
the plaintiff’s assertions in this case and the fact of
this earlier conviction are not necessarily mutually
exclusive. The reason that we’re having this testimony,
though, is to help you understand what credit, what
measure of believability should be accorded to the
statements of the various witnesses. That’s for this
purpose only. You are the judges of the facts and you
will use this evidence, along with all the other evidence
that is presented, in weighing these issues of
credibility.
S.J.A. 119. The court included an additional warning about this
evidence in its final jury instructions:
[Y]ou heard testimony that plaintiff was convicted of
assault and battery against the defendant. This evidence
was admitted for the limited purpose of assisting you in
judging the plaintiff’s credibility and in deciding
whether or not defendant acted reasonably. It was

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admitted for no other purpose. I tell you specifically
that you may not consider the evidence of plaintiff’s
prior conviction as determinative of the facts at issue
in this case, specifically those related to the use of
excessive force. You and you alone are to decide the
facts based on all the evidence presented in this trial.
The evidence of plaintiff’s prior conviction is simply
part of the evidence you may wish to consider.
J.A. 378.
After the instructions were read to the jury, the jury
left the courtroom and the parties were asked whether they had
objections to the instructions as given. Helsabeck stated that he
had only one “concern” regarding references to “proximate cause”
and “damage” in the instructions. J.A. 386-87. The court agreed
to address this concern by supplementing the instructions with a
cautionary statement to the jury. The court then asked if
Helsabeck had any other objection, and he responded in the
negative. In accordance with Helsabeck’s objection, the court also
changed the word “damage” in the jury instructions to “injury,”
presumably to clarify that Helsabeck did not need to prove damages
for the jury to find in his favor. J.A. 461a.
The court submitted three interrogatories to the jury.
The first interrogatory read, “Do you find from a preponderance of
the evidence that Defendant Fabyanic used excessive force during
the arrest of Plaintiff Helsabeck?” J.A. 476. The second
interrogatory dealt with Fabyanic’s asserted qualified immunity
defense. It read, “Do you find from a preponderance of the
evidence that Defendant Fabyanic’s conduct was objectively

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reasonable in light of the legal rules clearly established at the
time of the incident at issue in the case?” Id. Finally, the
third interrogatory read, “Do you find from a preponderance of the
evidence that Defendant Fabyanic committed a battery on Plaintiff
Helsabeck under Virginia law?” Id. On June 18, 2004, the jury
answered “yes” to the first two interrogatories and “no” to the
third interrogatory.
Helsabeck subsequently moved to set aside the verdict or
alternatively for a new trial, arguing that the court erred in
submitting the question of a qualified immunity (the second
interrogatory) to the jury and in making certain evidentiary
rulings. On August 31, 2004, the district court denied these
motions and entered judgment for Fabyanic. Helsabeck timely
appeals.
II.
Helsabeck argues that the district court erred in
submitting the qualified immunity interrogatory to the jury.
Government officials are entitled to qualified immunity from
liability for civil damages to the extent that their conduct does
not violate clearly established statutory or constitutional rights
of which a reasonable person should have known. Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). To determine whether a
defendant is entitled to qualified immunity, the relevant inquiry

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is whether it would be clear to an objectively reasonable officer
that his conduct violated the right at issue. Brown v. Gilmore,
278 F.3d 362, 367 (4th Cir. 2002).
Because Helsabeck failed to object to submission of the
interrogatory to the jury at trial, we review for plain error. In
re Celotex Corp., 124 F.3d 619, 630-61 (4th Cir. 1997) (citing
United States v. Olano, 507 U.S. 725 (1993)). Under this standard
of review, we may exercise our discretion to correct an error not
raised in district court if (1) there is an error; (2) the error is
plain; (3) the error affects substantial rights; and (4) we
determine, after examining the particulars of the case, that the
error seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id.
A.
In reviewing for plain error, the initial question is
whether an error occurred. In Willingham v. Crooke, 412 F.3d 553,
560 (4th Cir. 2005), we held that the question of a defendant’s
entitlement to qualified immunity under a particular set of facts
must be decided by the court, not by the jury. The district court
in the present case therefore committed error when it submitted the
qualified immunity interrogatory to the jury.

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B.
The second question is whether the error was plain. For
the purposes of plain error review, “plain” is synonymous with
clear or obvious. Olano, 507 U.S. at 734. Although it is clear
that the district court committed error under Willingham, that case
was not decided until more than one year after the jury delivered
its verdict in favor of Fabyanic. The applicable law in this
circuit was unsettled at the time of trial. In Knussman v.
Maryland, 272 F.3d 625, 634 (4th Cir. 2001), we noted that “it is
far better for the court, not the jury, to answer the ultimate
legal question of whether a defendant is entitled to qualified
immunity.” Because the issue was not raised by the parties in that
case, however, we had to “leave for another day the question of
whether it is ever appropriate for a jury to answer the ultimate
legal question of a defendant’s entitlement to qualified immunity.”
Id.
The Supreme Court has not addressed whether plain error
may be noticed in cases such as this one, where the law is
unsettled at the time of trial but becomes clear on appeal. See
United States v. David, 83 F.3d 638, 642 (4th Cir. 1996). In David
we held that an appellate decision after trial renders an error
“plain” if “an objection at trial would have been indefensible
because of existing law, but a supervening decision prior to appeal
reverses that well-settled law, rendering [a party’s] claim clearly

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meritorious.” Id. at 645. In this case an objection at trial
would not have been “indefensible,” and David’s holding therefore
does not control. In arriving at this conclusion, however, we
discussed reasons why review should not be available in cases like
this one, where applicable law is unsettled at the time of trial.
Because there was some debate about whether this discussion was
essential to our holding, see id. at 648-49 (Ervin, J.,
concurring), we assume without deciding that the error in this case
was “plain.”
C.
The third question is whether the error affected
Helsabeck’s substantial rights, that is, whether it was
prejudicial. Errors that actually affect the outcome of the
proceedings are prejudicial. United States v. Hughes, 401 F.3d
540, 548 (4th Cir. 2005). In this case, there is no way to
conclude that the error did not affect the outcome. The outcome
here -- the finding that Fabyanic was entitled to qualified
immunity -- can be attributed to nothing other than the error --
submission of a specific interrogatory on qualified immunity to the
jury. The error therefore affected Helsabeck’s substantial rights.

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D.
The final issue is whether the error seriously affects
the fairness, integrity, or public reputation of judicial
proceedings. We conclude that it does not, and we therefore
decline to notice this error even if it was “plain.” Although the
constitutional violations Helsabeck alleges are significant and his
injuries extremely serious, we are satisfied with the procedural
fairness of this case. The record contains ample documentation of
careful efforts by the parties and the court to ensure the proper
submission of issues to the jury. Nothing in the pre-verdict
record suggests that Helsabeck did not want the jury to decide the
issue of qualified immunity. As noted above, when the court
specifically asked the parties if they had any objections to the
jury instructions, Helsabeck, through his counsel, noted only one
“concern,” which had nothing to do with qualified immunity.
Helsabeck’s counsel asserts that he did not raise the objection at
that point in trial because he “vehemently” objected during
discussions in chambers and considered it “futile and a waste of
judicial time” to assert the objection at trial. Appellant’s
Supplemental Br. at 2-3. He further argues that it would be
“manifestly unjust” to penalize Helsabeck for the district court’s
failure to record the objections that he raised in chambers because
he did not have control over the court reporter. Id. at 4-5. We
are puzzled by these arguments. Although Helsabeck’s counsel may

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not have been able to arrange for a court reporter to be present in
chambers, he was no doubt aware that the discussions in chambers
were not being recorded. Given the “vehemen[ce]” with which he
purportedly objected in chambers, his failure to reiterate the
objection at any point on the record is inexplicable. Id. at 2.
As Helsabeck’s counsel surely knows, it is the duty of the parties,
not the court or the court reporter, to preserve objections on the
record for appeal. Counsel’s efforts to attribute the inadequacies
of the record to the district court and its court reporter are
unavailing.
Furthermore, it is well-established that plain error
analysis is to be used “sparingly” and to correct only
“particularly egregious errors.” United States v. Young, 470 U.S.
1, 15 (1985). Federal Rule of Criminal Procedure 52(b) gives
appellate courts the discretion to correct certain forfeited errors
in criminal cases, where a defendant’s life or liberty is at stake,
but there is no analogous statutory authority for courts to notice
plain error in civil cases, where the stakes are of a different
kind. Accordingly, many courts have noted that the plain error
doctrine should be invoked with “extreme caution” in the civil
context. See Celotex, 214 F.3d at 631 (citing cases). This case
does not present the type of egregious error that calls for
correction by this court.

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III.
Helsabeck’s second argument is that the district court
abused its discretion by excluding evidence regarding Fabyanic’s
prior bad acts. Helsabeck sought to introduce witnesses who would
have testified that Fabyanic treated them unreasonably during their
arrests in order to prove Fabyanic’s routine method of operation,
see Fed. R. Evid. 404(b), and to impeach Fabyanic’s credibility.
The court barred Helsabeck from using the evidence in his case-in-
chief and on cross examination, but allowed him to use it for
impeachment or rebuttal. J.A. 47. The district court did not
abuse its discretion in finding this evidence inadmissible under
Rule 404(b). The facts of the witnesses’ cases were not
sufficiently similar to Helsabeck’s case to establish an operating
method on Fabyanic’s part. See United States v. Mohr, 318 F.3d
613, 617-19 (4th Cir. 2003).
IV.
Third, Helsabeck argues that the district court should
have excluded Dr. Tucker’s testimony about Helsabeck’s statements
at the hospital because Helsabeck asserted the physician-patient
privilege. The Federal Rules of Evidence do not recognize a
physician-patient privilege where, as here, subject matter
jurisdiction is based on federal law. See Fed. R. Evid. 501.
Helsabeck nonetheless urges us to hold that the Virginia law on

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physician-patient privilege, Va. Code Ann. § 8.01-399(A), applies
here because he asserts a pendent state law battery claim. Even if
we found the Virginia privilege rule applicable, Helsabeck waived
the privilege by putting his medical condition at issue, releasing
his medical records, and failing to object when Fabyanic submitted
Dr. Tucker’s testimony with his summary judgment motion. See Va.
Code Ann. § 8.01-399(B). We therefore conclude that the district
court did not err by admitting Dr. Tucker’s testimony.
V.
Fourth, Helsabeck argues that the district court abused
its discretion by allowing evidence regarding Helsabeck’s
underlying assault and battery conviction. District courts have
broad discretion to admit relevant evidence if its probative value
is substantially outweighed by the danger of unfair prejudice.
Fed. R. Evid. 403. Although the evidence of Helsabeck’s underlying
conviction was arguably prejudicial to his case, we cannot say that
the district court abused its discretion in determining that the
danger of unfair prejudice did not substantially outweigh its
probative value. Furthermore, even if admission of the conviction
was erroneous, we are satisfied that the district court’s thorough
cautionary instructions rendered any error harmless.

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VI.
Finally, Helsabeck argues that the district court erred
in giving initial jury instructions stating that Helsabeck must
prove that Fabyanic’s act was the cause of the “damage” Helsabeck
suffered. The word “damage” was not the best choice for the jury
instructions because the trial had been bifurcated and damages were
not at issue at the time. Upon realizing the mistake, however, the
district court agreed to give an oral cautionary statement to the
jury. It also replaced the word “damage” with “injury” in the
written instructions given to the jury. J.A. 461a. If any error
was made in connection with the court’s use of the word “damage,”
the court’s rehabilitative steps rendered the error harmless.
***
For the foregoing reasons, we find no reversible error.
The district court’s judgment for Fabyanic is therefore
AFFIRMED.

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