Black, Elwood W., Sr. And Black, Joyce v. Stephens, Wayne and City of Allentown and Gable, Carson

662 F.2d 181

• Court: Court of Appeals for the Third Circuit
• Decided: November 3, 1981
• Docket: 80-2621
• Status: Published

Opinions

OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge.

Appellees, Elwood and Joyce Black, filed this section 1983 civil rights action against appellants, Wayne Stephens, Carson Gable, and the City of Allentown, as a result of a confrontation between the Blacks and Detective Stephens on March 21, 1977. The Blacks claimed that Stephens, a plainclothes detective with the Allentown police force, violated their' constitutional rights, initially by the use of excessive force in an incident at 10th and Lehigh Streets in Allentown and later by the filing of three unwarranted charges. Gable, then chief of police, and the City of Allentown, were also named as defendants for promulgating a regulation that caused Stephens to file additional charges against Elwood Black in order to delay any disciplinary investigation into the incident. In addition, these defendants were alleged to have adopted a policy that encouraged the use of excessive force by the officers within the department. After an eleven day trial, the jury found all three appellants liable and awarded the Blacks $35,000 in compensatory and punitive damages. Appellants’ motions for judgment n. o. v., or in the alternative a new trial, were denied. On review of the record we hold that there was sufficient evidence to sustain a finding of liability and damages against the defendants. In addition, there were no errors below that require a new trial. We will therefore affirm the judgment of the district court.¹

FACTS

The parties hotly contest all but the basic facts. A review of the record, however, reveals the following: On March 21,1977 at il: 15 p. m. Elwood Black drove his 1976 Cadillac Coupe de Ville to pick up his wife who was finishing work. Upon his arrival he learned that his wife had offered to give Shirley Deily, a co-worker, a ride home. Ms. Deily got in the front passenger seat and Joyce Black got in the rear on the passenger side. They dropped Deily off at 7th and Lehigh Streets and then proceeded west on Lehigh to pick up some sandwiches at a local restaurant.

The Blacks stopped for a red light in the westbound lane of Lehigh at the intersection of 8th Street, and Wayne Stephens, on duty as a plainclothes detective, pulled behind them in an unmarked patrol car. What transpired next is the subject of much dispute.

According to the Blacks, when the traffic light changed Mr. Black and another car proceeded through the intersection at a reasonable rate of speed. After crossing the intersection, detective Stephens suddenly raced up from behind and passed the Blacks’ vehicle by crossing the double yellow lines on Lehigh street. Black was startled by Stephens’ recklessness and remarked to his wife about the driver.

After passing the Blacks’ car, Stephens and the unidentified third car stopped at the intersection of 10th and Lehigh. Black stopped about six feet behind Stephens, in the outside westbound lane. At this point, Stephens jumped out of his car and, without identifying himself, approached the Blacks’ car and started screaming that Mr. Black was a “rotten driver.” Detective Stephens was wearing slacks, an open collared shirt, and a nylon windbreaker. As Stephens approached, Black put his car in reverse and started to drift backward. After arguing with Stephens for a moment, Black said: “Why am I even bothering. Your car is in the way. It is blocking traffic. Will you move your car so I can move mine and get out of here.” (Trial Trans. Vol. 2 at 27.) Black then put his car in drive and attempted to pull around to the left of the approaching detective Stephens. At this point Stephens, pulled out his service revolver and aimed it directly at Black’s head, while Mrs. Black, who was still in the right rear seat, was in the precise line of fire. With gun drawn Stephens screamed that Black had driven onto his foot and threatened to shoot if Black did not move the car. Black testified that his car was no where near Stephens’ foot, but he backed up and drove around the right of Stephens’ vehicle and continued west on Lehigh Street.

Terribly shaken by their encounter with the as yet unidentified gunman, the Blacks drove on toward the sandwich shop at about 40 miles per hour. As they approached 29th and Lehigh, approximately 2.1 miles from 10th and Lehigh, they saw flashing red lights and encountered a police roadblock. They stopped at the roadblock and were arrested for aggravated assault by officer Shoemaker of the Allentown police force.

Detective Stephens’ version of the events is, predictably, much different. According to his testimony, Stephens first noticed the Blacks’ vehicle as he pulled behind their car at the intersection of 8th and Lehigh. When the light changed, the Blacks’ car, originally in the outside westbound lane of Lehigh, started to swerve into the inside lane. As Stephens began to pass in the outside or passing lane, the Blacks’ vehicle swerved back into the left lane and forced Stephens’ over both yellow lines, into the eastbound traffic. Stephens stopped for a red light at 10th and Lehigh and the Blacks’ car screeched to a stop a few inches behind him. Stephens, worried that the driver might be intoxicated or that something was amiss, got out of his ear and walked toward the Blacks’ vehicle, which was now drifting backward slowly. Stephens inquired if there, was anything wrong and Black screamed that Stephens was a “rotten driver.” At this point the Blacks’ car lurched directly at him and the left front tire rolled onto detective Stephens’ foot. He screamed in vain for Black to get off his foot. Finally, because of the excruciating pain, Stephens drew his revolver and ordered Black to remove his car. Black then backed up and swung to the right through the intersection.

A high speed chase ensued, with Stephens testifying that he traveled at 75 to 80 miles per hour to stay in visual contact with the Blacks’ car. Stephens radioed for help and officer Shoemaker set up a road block at 29th and Lehigh Streets. When Stephens arrived at the roadblock, Shoemaker was escorting Elwood Black into a squad car.

The parties have a general understanding as to what happened next. Elwood and Joyce Black were transported by officer Shoemaker to the Allentown Police station. During this trip, Black was very upset and promised to “get his [Stephens’] ass.” Black was also concerned about a handgun, registered legally in his name, that was in the glove compartment of his car. Officer Shoemaker radioed the units to search the car for the gun, as well as some medicine Black needed for his asthma.

At about 1:00 a. m. Wayne Stephens filed a criminal complaint for aggravated assault against Black. While filling out the complaint, Stephens testified that Black was still extremely upset and had promised to complain to Chief Gable and the Mayor of Allentown. In addition, at the police station, Stephens testified that Black said he needed his handgun because “the world is full of nuts like [Stephens], and that if he had his gun, he’d shoot [Stephens].” Black was arraigned by Magistrate Stahl and released on his own recognizance at approximately 1:40 a. m.

Elwood Black returned to the police station on March 23, 1977 to register a complaint about Wayne Stephens and the events leading to his arrest on the evening of March 21. He spoke with Chief of Police Carson Gable, but was informed that no investigation of Stephens’ conduct would commence until the charge against Black was resolved. Chief Gable cited a police regulation, contained in the official police manual that states: “Please Note: Where a complaint alleging misconduct on the part of an officer arises from an incident where the officer made an arrest, disciplinary hearings (against the officer) will not take place until the arrest charges are finally adjudicated.” (Allentown Police Department Blue Book at 15a.) (Trial Trans. Exhibit Q) At trial, Chief Gable testified that he handled personally all complaints by private citizens against police officers. In addition, Gable testified that he drafted the regulation and that it was part of every police officer’s “Blue Book” or the department’s internal operating procedures.

Stephens claims that in the morning following the arrests, he consulted the Lehigh County Assistant District Attorney, Lynn Cole, in accordance with established policy relating to night arrests. Stephens claims Cole recommended that three additional charges be filed against Black. This testimony is, however, unsubstantiated; Cole took a new position in Florida prior to the trial and was not called as a witness. Further, there were no additional charges filed until approximately a week later.

On March 23 or 24, Chief Gable met with detective Stephens and informed him of Elwood Black’s complaint about his use of excessive force during the March 21, 1977 incident. Thereafter, on March 29, 1977, Stephens filed three additional charges against Black based on the March 21 incident: recklessly endangering another person, carrying a concealed deadly weapon, and terroristic threats.² (Trial Trans. Vol. 4 at 47) The charges of carrying a concealed weapon and terroristic threats were subsequently dropped and Black was found not guilty on the recklessly endangering charge. Black was later found guilty of simple assault, but on appeal this conviction was vacated and remanded for new trial. The record is silent as to the present status of this case. (Trial Trans. Vol. 11 at 20, 49-50)

The Blacks commenced this civil rights action against appellants pursuant to 42 (1976) on May 7, 1977 in the United States District Court for the Eastern District of Pennsylvania.³ At trial, special interrogatories were submitted to the jury and all appellants were found liable. In particular the jury found:

Q: 6. Do you find that Defendant Wayne Stephens used excessive force against Plaintiff Joyce Black at 10th and Lehigh Streets on March 21, 1977?

A: Yes.

Q: 7. Do you find that Defendant Wayne Stephens used excessive force against Plaintiff Elwood Black at 10th and Lehigh Streets on March 21, 1977? A: Yes.

Q: 14. Do you find that Defendant Carson Gable promulgated and implemented an administrative regulation which proximately caused Defendant Wayne Stephens to arrest and file unwarranted charges against Plaintiff Elwood Black?

A: Yes.

Q: 15. Do you find that Defendant City of Allentown promulgated and implemented an administrative regulation which proximately caused Defendant Wayne Stephens to arrest and file unwarranted charges against Plaintiff Elwood Black?

A: Yes.

Q: 16. Do you find that Defendant Carson Gable had a policy of encouraging members of the Allentown Police Department to engage in the use of excessive force in the performance of their duties as police officers?

A: Yes.

Q: 17. Do you find that Defendant Carson Gable’s policy of encouraging members of the Allentown Police Department to engage in the use of excessive force in the performance of their duties as police officers proximately caused Defendant Wayne Stephens to use excessive force against Plaintiff Joyce Black or Plaintiff Elwood Black at 10th and Le-high Streets on March 21, 1977?

A: Yes.

(Joint Appendix at 10-12.)⁴ The jury then awarded $500 in compensatory damages against Wayne Stephens, $3,000 in compensatory and $1,500 in punitive damages against Carson Gable, and $20,000 in compensatory and $10,000 in punitive damages against the City of Allentown.

Each appellant submitted a motion for judgment n. o. v. and each motion was denied. In addition, the appellants submitted motions for a new trial on four grounds: one, that the jury’s verdict was against the weight of the evidence; two, that the awards of damages were arbitrary and excessive; three, that several items of crucial evidence were improperly excluded; and four, that the trial court erred in its instructions to the jury. After a review of the record we hold that there is enough evidence to support the jury’s verdict against each appellant. Further, appellants’ motions for a new trial are also without merit. We will, however, examine each of appellants’ claims.

DISCUSSION

In examining the trial court’s denial of appellants’ motions for judgment n. o. v., we are required to “review the record in this case in the light most favorable to the non-moving party, ... and to affirm the judgment of the district court denying the motions unless the record is ‘critically deficient of that minimum quantum of evidence from which the jury might reasonably afford relief.’ ” Dawson v. Chrysler Motor Corp., 630 F.2d 950 (3d Cir. 1980), cert. denied, 450 U.S. 959, 101 S.Ct. 1418, 67 L.Ed.2d 383 (1981), quoting Denneny v. Sie-gel, 407 F.2d 433, 439 (3d Cir. 1969). See Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265, 1273 (3d Cir. 1979); Rich v. U. S. Lines, 596 F.2d 541, 544 (3d Cir. 1979). Our examination of the record reveals enough evidence from which a jury could, rationally find appellants liable under section 1983.

Initially, appellant Wayne Stephens contends that the evidence was insufficient to prove that he was acting under color of state law during the March 21 incident or that he deprived the Blacks of any constitutional rights during their confrontation. Stephens himself testified that during the evening of March 21, 1977, he was on duty as a member of the Allentown Police force, dressed in a police academy windbreaker and that he investigated the Blacks’ vehicle because he thought the driver was either intoxicated or in need of help. (Trial Trans. Vol. 3 at 141, 153; Vol. 4 at 58) As such, Stephens was acting under color of state law for purposes of section 1983. Screws v. United States, 325 U.S. 91,107-108, 65 S.Ct. 1031, 1038, 89 L.Ed. 1495 (1944). Gillard v. Schmidt, 579 F.2d 825, 829 (3d Cir. 1978).

Stephens also argues that the jury could not have found that he violated any constitutional right of the Blacks. We disagree. A law enforcement officer’s infliction of personal injury on a person by the application of undue force may deprive the victim of a fourteenth amendment “liberty” without due process of law. Shillingford v. Holmes, 634 F.2d 263, 265 (5th Cir. 1981). As this court stated in Rhodes v. Robinson, 612 F.2d 766, 772 (3d Cir. 1979), “The protection of fundamental liberties by the due process clause and the eighth amendment extends to protection from an official’s abusive exercise of his powers to inflict grossly undue harm.” Not all common law torts committed by police officers, however, rise to the level of a constitutional harm actionable under section 1983. Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 409, 91 S.Ct. 1999, 2011, 29 L.Ed.2d 619 (1971) (Harlan, J. concurring). Howell v. Cataldi, 464 F.2d 272, 274-75 (3d Cir. 1972). The test under the due process clause is whether the police officer’s conduct “shocks the conscience.” Rhodes, 612 F.2d at 772, quoting Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952).

There is more than enough evidence from which the jury could find that Stephens’ actions deprived the Blacks of their constitutional rights. While there was conflicting testimony at trial, Elwood Black testified that his car was never on detective Stephens’ foot and that he did not provoke Stephens to draw his gun.⁵ (Trial Trans. Vol. 2, at 159) In addition, an expert witness testified that the Blacks’ car weighed 5,160 pounds and that 1,340 pounds of pressure would be exerted by the left front tire that was allegedly on Stephens’ foot. (Trial Trans. Vol. 2 at 103-04) Yet Dr. George Moerkirk, the physician who examined detective Stephens immediately after the incident, testified that there were no contusions, lacerations or visible signs of any injury to Stephens’ toe. (Trial Trans. Vol. 2 at 110-11) The X-rays for fractures and dislocations were also negative. (Trial Trans. Vol. 2 at 111) While there are certainly conflicting versions of the incident at 8th and Lehigh, viewing the evidence in the light most favorable to the non-moving party, we cannot hold that the jury’s finding of liability was irrational. Cf. Collins v. Signetics Corp., 605 F.2d 110, 115 (3d Cir. 1979) (appellate court has no authority to substitute its judgment for that of the jury). For an unidentified officer to brandish his revolver eighteen inches from Elwood Black’s head with Mrs. Black in the precise line of fire and then threaten to shoot, is conduct that shocks the conscience. Rhodes, 612 F.2d at 772.

Appellant Carson Gable, Chief of Police in Allentown, was held liable for damages under two theories. First, the jury found that Chief Gable promulgated and implemented a police regulation that caused detective Stephens to file three unwarranted charges against the Blacks. Second, the jury found that Chief Gable had a policy of encouraging members of the Allentown police department to use excessive force in the performance of their duties and that this policy was the proximate cause of Stephens’ use of excessive force against the Blacks. Appellant Gable claims that there is no evidence in the record to support such a verdict. We disagree.

To hold a police chief liable under section 1983 for the unconstitutional actions of one of his officers, a plaintiff is required to establish a causal connection between the police chief’s actions and the officer’s unconstitutional activity. Commonwealth of Pennsylvania v. Porter, 659 F.2d 306 at 321 (3d Cir. 1981) (en banc). The court in Porter recognized that “Rizzo v. Goode [423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976)] requires that we focus on the degree to which [the police chief] participated in a pattern of violation by virtue of knowledge, acquiescence, support and encouragement.” Porter, at 321. As Judge Garth emphasized in Lewis v. Hyland, 554 F.2d 93, 98 (3d Cir.), cert. denied, 434 U.S. 931, 98 S.Ct. 419, 54 L.Ed.2d 291 (1977), the “mere invocation of the ‘pattern’ or ‘plan’ [will] not suffice without this causal link.” Id. citing Rizzo v. Goode, 423 U.S. 362, 375-77, 96 S.Ct. 598, 606-07, 46 L.Ed.2d 561 (1975). Cf. Maclin v. Paulson, 627 F.2d 83, 86 (7th Cir. 1980) (mere acquiescence by police chief when he is on notice of constitutional violations is sufficient to trigger liability under section 1983).

The jury returned findings of two such causal connections in this case. First, in response to interrogatory number 14 they found that Chief Gable’s regulation, delaying any disciplinary investigation of an officer’s conduct until the underlying arrest was resolved, proximately caused detective Stephens to file unwarranted charges against Elwood Black. Second, in response to interrogatory number 17, the jury found that Chief Gable had a policy of encouraging the use of excessive force and that this policy proximately caused detective Stephens to use such force against the Blacks during the March 21, 1977 incident.⁶ We have examined the record and hold that it supports these findings.

Initially, there is sufficient evidence to establish that Gable promulgated the regulation and had authority to do so. Carson Gable testified that while he was Chief of Police he was the “disciplinary agent” for the police department; internal discipline was under his control. (Trial Trans. Vol. 4 at 119) As part of this responsibility, Chief Gable wrote and implemented the disciplinary regulation at issue: “Please Note: Where a complaint alleging misconduct on the part of an officer arises from an incident where the officer makes an arrest, disciplinary hearings (against the officer) will not take place until after the arrest charges are finally adjudicated.” (Allentown Police Department Blue Book at 15a) (Exhibit Q) This regulation was contained in the “Blue Book” which Stephens testified was a printed copy of the department’s rules and regulations, “sort of like our laws that we have to live up to.”⁷ (Trial Trans. Vol. 4 at 44)

The causal nexus between this regulation and Stephens’ filing of unwarranted charges is supported by the timing of charges filed against Elwood Black. It is agreed by all parties that Mr. Black was charged solely with aggravated battery on March 21, 1977. On March 23, Mr. Black met with Chief Gable, and complained bitterly about detective Stephens’ conduct. Gable then testified that “a day or two after” his meeting with Black he spoke with Stephens to inform him of Black’s complaints and get his version of the incident. (Trial Trans. Vol. 4 at 155) Approximately five days after this meeting, on March 29, 1977, Stephens filed three other charges against Elwood Black. Although detective Stephens testified that he filed these additional charges before he met with Chief Gable, (Trial Trans. Vol. 2 at 47) in light of Chief Gable’s testimony that he met with Stephens on the 23d or 24th, and that the actual date of the additional charges was March 29, it was reasonable for the jury to infer that Stephens filed the three additional charges in an effort to delay any disciplinary hearing on the incident.⁸ This evidence supports the jury’s finding of the encouragement and support required to hold Chief Gable liable under section 1983. Porter, at 321-322.

Turning to the jury’s finding of a connection between Gable’s policy of promoting the use of excessive force and Stephens’ conduct on the evening of March 21, while the evidence is not overwhelming, it is still sufficient to sustain the jury’s finding. This court’s task is not to review the record de novo, but rather to uphold the jury’s verdict if the record contains that minimum quantum of evidence from which the jury could have rationally reached a verdict. Dawson, 630 F.2d at 959. Our examination of the record reveals such evidence. Chief Gable’s policy concerning the use of excessive force ensured that a citizen’s complaint about excessive force never went into a police officer’s permanent personnel file. (Trial Trans. Vol. 4 at 132-33) Indeed, such a complaint could only get into an officer’s record if the officer put it there himself. Although Chief Gable stated that he was in exclusive control of police discipline, he testified that he never initiated a disciplinary action against an officer based solely on his evaluation of the officer’s use of force. (Trial Trans. Vol. 4 at 146) In addition, while Gable testified that an officer’s use of force had no influence whatsoever on his chances for promotion, (Trial Trans. Vol. 4 at 145), he added that Officer Stephens probably would not have been promoted to detective if he had been the type of officer who backed down when force was involved. Id. at 146. Finally, Chief Gable stated that any officer “worth his salt” would use force every week of his career because very few arrests are made without it.⁹ (Vol. 4 at 135,137) This testimony, when viewed in the light most favorable to the Blacks, supports the jury’s responses to the interrogatories that establish the nexus between Gable’s policy of promoting force and Stephens’ use of excessive force in the incident with the Blacks.

The City of Allentown also appeals the trial court’s denial of its motion for judgment n. o. v. The City argues that Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 693, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978), prevents a municipality from being held liable for the actions of its agents under a theory of respondeat superior. While we agree with this position, Allentown was not found liable under such a theory. Rather, the city was held liable because of a governmental policy that proximately caused detective Stephens to file unwarranted charges against Elwood Black.

In Monell, the court held that municipalities may be sued directly under section 1983 for constitutional deprivations inflicted upon private individuals pursuant to a governmental custom, policy, ordinance, regulation or decision. Id. at 690-91, 98 S.Ct. at 2035-36; Landrigan v. City of Warwick, 628 F.2d 736, 746 (1st Cir. 1980). The Court went on to emphasize, however, that a city’s liability can be triggered by persons other than the municipality’s official lawmakers: “[I]t is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” Monell, 435 U.S. at 694, 98 S.Ct. at 2037. (emphasis supplied)

In this case Chief Gable “may fairly be said to represent official policy” for the city of Allentown. Id. He wrote and implemented an official police regulation concerning disciplinary hearings which the jury found proximately caused Stephens to file unwarranted charges against Elwood Black. Chief Gable is the final authority in charge of the police force in Allentown. He is a member of the Mayor’s cabinet, proposes and manages the budget and establishes policies and procedures for the entire police department. (Trial Trans. Vol. 4 at 118-19). Acting in this capacity, Chief Gable’s promulgation of the regulation was an official act of policy which the jury found proximately caused Stephens to file unwarranted charges. Cf. Schneider v. City of Atlanta, 628 F.2d 915, 920 (5th Cir. 1980) (Prison director can engage the city’s liability if he is the final authority or ultimate repository of city power). Landrigan, 628 F.2d at 747 n.8 (municipality is absolved from liability under section 1983 because of plaintiff’s failure to allege an official whose actions might be considered those of the town.) This is a sufficient basis for the municipality’s liability under Monell and section 1983.

Finally, appellants presented the district court with several motions for new trial. All of these motions were denied, and an appellate court should not grant a new trial unless refusal to take such action is inconsistent with substantial justice.¹⁰ For-tunato v. Ford Motor Company, 464 F.2d 962, 967 (2d Cir. 1972). We will affirm the district court’s denial of these motions.¹¹

Appellants first claim that a new trial must be awarded because the award of damages against all three appellants was arbitrary and excessive. The appellants were assessed a total of $35,000 in compensatory and punitive damages. We must affirm the jury’s damage award unless it is “so grossly excessive as to shock the judicial conscience.” Murray v. Fairbanks Morse, 610 F.2d 149, 152-53 (3d Cir. 1979); Edynak v. Atlantic Shipping Inc. Cie. Chambon, 562 F.2d 215, 225-26 (3d Cir. 1977), cert. denied, 434 U.S. 1034, 98 S.Ct. 767, 54 L.Ed.2d 781 (1978). This case does not reveal an abuse of discretion. The trial judge instructed the jury carefully on the issue of damages, (Trial Trans. Vol. 11 at 99-111) and specifically emphasized that each defendant can be found liable for only those damages it caused. (Id. at 109) In addition, the court emphasized that punitive damages could be awarded only if the jury found that a particular defendant acted with reckless disregard or indifference to the right of the injured person. These instructions were not erroneous. Cochetti v. Desmond, 572 F.2d 102, 105-06 (3d Cir. 1978).

The appellants also assert that there was an improper foundation for the award of attorney’s fees. This argument is without merit. The hourly rate, total bill, and services rendered by all attorneys were presented to the jury. (Trial Trans. Vol. 11 at 19-20) The jury’s fee award was reasonable.

Appellants’ next contention is that the trial court erred in the exclusion and admission of certain evidence. Specifically, appellants claim that the admission of evidence as to Stephens’ prior use of force and the court’s refusal to admit evidence of Stephens’ prior recommendations was substantial error. We disagree. Stephens’ pri- or confrontations with private citizens were not admitted to show his character or that he acted in conformity therewith, but rather to show appellant Gable’s knowledge of these acts. (Trial Trans. Vol. 7 at 1-4) As to the evidence of Stephens’ prior recommendations for good conduct, the court held that this was material so long as it was coupled with a showing that Chief Gable had knowledge of these “good arrests.” (Trial Trans. Vol. 7 at 3) In addition, any error about Stephens’ propensity to use excessive force prior to March 21, 1977 was rendered harmless by the jury’s response to special interrogatory Number 9. The trial court asked: “Do you find that defendant Wayne Stephens, prior to March 21, 1977, had a propensity to use excessive force in the performance of his duties as a police officer?” The jury responded “No.” Consequently, any error on the admission of Stephens’ propensity for excesses prior to March 21, 1977 was ultimately harmless. Leizerowski v. Eastern Freightways, Inc., 514 F.2d 487, 492 (3d Cir. 1975); James v. Continental Ins. Co., 424 F.2d 1064 (3d Cir. 1970).

Appellants challenge the trial court’s jury instructions in four respects: first, the court erred in submitting the issue of probable cause for the arrest at 29th and Lehigh to the jury; second, the court erred in charging the jury on the promulgation of the administrative regulation; third, the court erred in charging the jury on the issue of effective assistance of counsel and fourth, the court’s reply to the jury’s note requesting the legal definition of excessive force was overbroad and not responsive.

Appellants’ first and third grounds for error — submitting the issue of probable cause for the arrest at 29th and Lehigh and whether the Blacks were denied effective assistance of counsel — cannot be grounds for a new trial. Even assuming, arguendo, some error in the instructions existed, it was rendered harmless by the jury’s ultimate finding. In response to interrogatories 4 and 5, the jury found that while the arrest at 29th Street was not based on probable cause, it was undertaken by detective Stephens in good faith and with a reasonable belief in the existence of probable cause. As such, the appellants were not prejudiced by the actual incident at 29th and Lehigh.¹² Leizerowski, 514 F.2d at 492. In addition, the jury also found that detective Stephens did not deny Elwood Black the effective assistance of counsel. See Special Interrogatory Number 8, Joint Appendix at 10. Therefore neither of these alleged errors can serve as a basis for new trial. Id.

Appellants also object to the court’s instruction on the promulgation of exhibit Q, the Allentown Police Blue Book Regulation. The validity of this instruction must be viewed in conjunction with the court’s entire charge in order to determine if a new trial is warranted. United States v. Palm-eri, 630 F.2d 192, 201 (3d Cir. 1980), cert. denied, 450 U.S. 967, 101 S.Ct. 1484, 67 L.Ed.2d 616 (1981). Appellants’ major complaint centers on the court’s failure to define “unwarranted charges” for the jury. The trial court’s instructions, while not explaining the meaning of “unwarranted” are quite specific as to the requirement that Stephens’ subsequent criminal charges against Elwood Black had to have been proximately caused by the police regulation at issue. (Trial Trans. Vol. 8 at 59-60). This charge stresses the crucial finding for the jury. While further explanation of “unwarranted” might have clarified any questions, the instructions, when viewed on the whole, were not reversible error.

Appellants’ final argument is that the trial court erred in replying to the jury’s note requesting a definition of excessive force. The trial court’s response simply recited the original charge on this issue. There was no objection from either counsel when the instruction was read originally or in response to the jury’s questions. See Juneau Square Corp. v. First Wisconsin Nat. Bk. of Milwaukee, 624 F.2d 798, 810 (7th Cir. 1980), cert. denied, 449 U.S. 1013, 101 S.Ct. 571, 66 L.Ed.2d 472 (1981) (where a party does not object to a jury charge it is not subject to review). Nevertheless, we have examined the instruction and hold that it focused on the correct definition of excessive force.

Therefore, for the reasons expressed above, the trial court’s denial of appellants’ motions for judgment n.o.v. and new trial will be affirmed.

1 . The United States Supreme Court decided City of Newport v. Fact Concerts, Inc.,-U.S. -, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981) after oral argument had been held in this case. We asked the parties to brief the question of whether Newport affects the award of punitive damages against the City of Allentown in this case. Both parties did so.

After reading the briefs, we conclude that Newport cannot affect the award of punitive damages against Allentown in this case. Federal Rule of Civil Procedure 51 requires that a party object to jury instructions before the jury retires, “stating distinctly the matter to which he objects and the ground of his objection.” Failure to do so constitutes a waiver of any error in the instructions (except plain error, a doctrine which is not at issue here, 101 S.Ct. at 2754.) The argument that Allentown cannot be held liable for punitive damages because it is a municipality was not made before the trial court or before this court prior to oral argument. Thus, Allentown is barred by its “procedural default,” id., from asserting that contention now.

In Newport, the city first challenged the punitive damages instruction on the ground that a municipality cannot be held liable for punitive damages under 42 U.S.C. § 1983 in its motion for a new trial. The trial court noted that, under Rule 51, the challenge was untimely, but nonetheless reached the legal merits of the argument. The Supreme Court also reached the legal merits, asserting that the trial court had refused to allow Rule 51 to bar the city’s contentions. “Although the punitive damages question perhaps could have been avoided simply by a reliance, under Rule 51, upon petitioner’s procedural default, the judge concluded that the interests of justice required careful consideration of this ‘novel question’ of federal law.” 101 S.Ct. at 2753-54; footnotes omitted. In sharp distinction to this case, where the issue was neither raised nor briefed in the lower court nor prior to argument in this court, in Newport the question of whether a municipality may be held liable for punitive damages “was squarely presented and decided on a corn-plete trial record by the court of first resort, was argued by both sides to the Court of Appeals, and has been fully briefed before this Court.” 101 S.Ct. at 2754.

Allentown in its post-argument brief contends that it fulfilled the requirements of Rule 51 when it objected to the punitive damages instruction during the charge conference and again after the instruction had been given. The record does not support Allentown’s contention. During the charge conference, Mr. Stevens, counsel for Allentown, stated that “We don’t think punitive damages has any part of this case.” N.T. 11-72. He elucidated this claim by stating that “I don’t believe that punitive damages are proper against the City of Allentown, since they are only secondarily liable, really, and punitive damages is a penalty against the actor, not the person who had an act done for it. The City of Allentown, I don’t believe is responsible under the law.” N.T. 11-75. The trial court treated this latter statement as an objection to holding the city secondarily liable under a respondeat superior theory, and stated that the city, if found liable, would be found directly liable.

After the charge was delivered, Mr. Stevens stated that “I think it is improper under the facts of this case to have charged on punitive damages. I think the Court should have indicated that punitive damages were not proper in this case.” N.T. 11-115. The trial court construed Mr. Stevens’ statement as a claim that the facts of the case were insufficient to warrant sending the question of punitive damages to the jury, and ruled to the contrary.

At no point did counsel for the city indicate that his objection was based on the legal doctrine that punitive damages may not be awarded under § 1983 against a municipality. “A party may not state one ground when objecting to an instruction and attempt to rely on a different ground for the objection on appeal .. .. ” 9 Wright & Miller, Federal Practice and Procedure § 2554 at 647. Thus, Newport can have no impact upon the award of punitive damages against the City of Allentown in this case.

2 . Commonwealth v. Black, Criminal Docket # 1-4-265. 18 Pa.Cons.Stat. §§ 2705, 2706, & 6106 (Purdon 1973). These statutes provide:

Recklessly Endangering Another Person:

A person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury.

18 Pa.Cons.Stat. § 2705 (Purdon 1973). Terroristic Threats

A person is guilty of a misdemeanor of the first degree if he threatens to commit any crime of violence with intent to terrorize another or to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or in reckless disregard of the risk of causing such terror or inconvenience.

18 Pa.Cons.Stat. § 2706 (Purdon 1973). Firearms not to be carried without a license (a) Offense defined. — No person shall carry a firearm in any vehicle or concealed on or about his person, except in his place of abode or fixed place of business, without a license therefor as provided in this subchapter.

18 Pa.Cons.Stat. § 6106 (Purdon 1973).

3 . The text of section 1983 states:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983 (1976).

4 . Other than appellants’ general directed verdict motion, counsel had no objection to either the substance or the wording of the jury interrogatories. (Trial Trans. Vol. 8 at 3)

5 . In addition, Stephens’ version of the “high speed chase” from 10th and Lehigh to 29th Street was contradicted by both the testimony of Officer Shoemaker and appellee Elwood Black. Officer Shoemaker testified that Black’s car was travelling at 40 miles per hour when he first saw it approaching the roadblock at 29th and Lehigh Streets. (Trial Trans. Vol. 7 at 71) This estimated speed parallels Elwood Black’s testimony and would explain how, within the time it took Black to travel 2.1 miles, Officer Shoemaker had time to receive Stephens’ radio transmission, drive to 29th and Lehigh, set up a roadblock, and still wait 30 seconds before he saw the headlights of Black’s vehicle approximately three-quarters of a mile away. (Trial Trans. Vol. 7 at 69-71)

6 . Special Interrogatories 14 and 17 state:

Q. Interrogatory No. 14, Do you find that defendant Carson Gable promulgated and implemented an administrative regulation which proximately caused defendant Wayne Stephens to arrest and file unwarranted charges against Elwood Black?

A. Yes.

Q. Interrogatory 17 reads, Do you find defendant Carson Gable’s policy of encouraging members of the Allentown Police Department to engage in the use of excessive force in the performance of their duties as police officers proximately caused defendant Wayne Stephens to use excessive force against plaintiff Joyce Black or plaintiff Elwood Black at 10th and Lehigh Streets on March 21, 1977?

A. Yes.

7 . Although Stephens testified that he was never aware of this regulation, Chief Gable stated that each officer was issued this Blue Book and that it contained a specific code of discipline and penalties. (Trial Trans. Vol. 4 at 122) Taking this testimony in the light most favorable to appellees it was reasonable for the jury to find that Stephens had knowledge of his department’s rules and regulations.

8 . Occasionally during the trial, counsel for appellants argued that the filing of additional charges against Elwood Black would not have delayed a disciplinary hearing about the March 21, 1977 incident. (See, e. g., Trial Trans. Vol. 2, at 177-181). Appellants contend that additional charges are adjudicated at the same time as the initial aggravated battery charge so filing additional charges would not delay the disciplinary hearing. We note that this argument was never presented to the jury. But also, we reject the reasoning underlying this claim, as did the district court. The filing of additional charges would certainly postpone an adjudication of the initial charge because further fact finding and preparation would be required. Hence the addition of these extra charges would necessarily delay any internal disciplinary hearings.

9 . In addition, the record reveals two other incidents where citizens complained about detective Stephens. One incident involved the beating and wounding of Duane Roach. According to the evidence at trial, Duane Roach was riding a 250cc dirt bike up and down the steps of a local public school in the spring of 1976 when Officer Stephens happened by on horseback. After chasing Roach around several playing fields, Stephens cornered the youth in a corral. When Roach tried to escape Stephens “threw a good left and floored him.” Duane Roach and his brother then complained to the desk sergeant about Stephens’ violence and Gable testified he was aware of the incident. Indeed, Stephens’ police report in which he claimed to throwing a “good left” and “flooring” Duane Roach was submitted to Gable and admitted into evidence (Trial Trans. Vol. 4 at 151, Exhibit E).

A second incident involving Barbara Titlow, occurred on July 10, 1976, and again caused private citizens to complain to city officials about Stephens. In this incident, Stephens confronted several horseback riders who had left a bridle path in order to avoid an obstruction. Stephens, wearing shorts and a T-shirt, failed to identify himself as a police officer, and began “screaming” and “yelling” at the riders to keep their horses off the grass. (Trial Trans. Vol. 2 at 130-45). Although Titlow attempted to register her complaint to Chief Gable, she was unable to meet with him. Instead, she conveyed her complaint to the Mayor, the City Solicitor, and Chief Gable’s secretary.

10 . Rule 61 of the Federal Rules of Civil Procedure states:

No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.

11 . Appellants present a motion for new trial on the ground that the jury’s verdict is unsupported by the manifest weight of the evidence. Such a motion is ordinarily a matter for the discretion of the trial court. Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 36, 101 S.Ct. 188, 191, 66 L.Ed.2d 193 (1980). The lower court’s decision will be reviewed solely for an abuse of discretion. Thomas v. E. J. Korvette, Inc., 476 F.2d 471, 474-75 (3d Cir. 1975). 6A Moore’s Fed.Prac., 59.05[5] (2d ed. 1979). In light of our discussion on the evidence with respect to appellants’ motions for judgment n. o. v., we hold that the trial court did not abuse its discretion in this case.

12 . The court was quite specific in its instructions on detective Stephens’ liability for the arrest at 29th and Lehigh:

May I add, Members of the Jury, that even though you find an arrest without probable cause at 10th and Lehigh Streets or even though you find no probable cause for the 29th and Lehigh Streets arrest, you must, however, make another determination before you can hold Wayne Stephens liable for either or both of those events. This is so because Wayne Stephens is not liable for either of those arrests if two conditions are met: One, the officer must believe in good faith that the arrest was valid, that is that there was probable cause; two, that belief must have been a reasonable one.

(Trial Trans. Vol. 8 at 50). This instruction was not erroneous.