Grazier Ex Rel. White v. City of Philadelphia

328 F.3d 120, 2003 WL 21040289

• Court: Court of Appeals for the Third Circuit
• Decided: May 9, 2003
• Docket: 01-3284
• Status: Published

Opinions

OPINION OF THE COURT

AMBRO, Circuit Judge.

Dwayne Campbell and Tierra Grazier brought this 42 U.S.C. § 1983 action against Philadelphia police officers Thomas Hood and Anthony Swinton as well as the City of Philadelphia. They allege that Hood and Swinton violated their Fourth and Fourteenth Amendment rights by shooting at them in the course of a traffic stop and that the City failed to train these officers properly. At the close of the plaintiffs’ case-in-chief, the District Court granted judgment as a matter of law for the City on the basis that the plaintiffs could not satisfy the stringent requirements for municipal liability. The case against Officers Hood and Swinton went to the jury, which found them not liable for any constitutional violations. In a post-trial memorandum, the District Court denied the plaintiffs’ motion for a new trial. We affirm.¹

I. Factual Background

On October 3, 1997, Officers Hood and Swinton were patrolling Philadelphia in an unmarked police car and in civilian clothes. Officer Hood was wearing a Philadelphia Phantoms hockey jersey, blue jeans, and black high top uniform boots, with his badge hanging from a chain around his neck. Officer Swinton was wearing a mul-ti-colored flannel shirt, blue jeans, white baseball cap, and white sneakers. Both officers were relatively new on the job, and this was the first time that either had been assigned to this type of plainclothes duty.

According to the officers, at approximately 8:00 p.m. a car passed them at high speed in a non-traffic lane. Hood and Swinton followed the vehicle, which Campbell was driving with his young cousin Grazier in the back seat, to the next intersection, where Campbell had stopped for a light. Notwithstanding that, under Philadelphia Police Department regulations, it is “preferable” that plainclothes officers not make traffic stops,² Hood drove his car around Campbell’s, blocking him perpendicularly in the intersection.³ Hood and Swinton emerged from the unmarked car and, according to them, displayed their police badges and said “Police, Don’t Move.” Campbell contends that he could not hear what the officers said because his windows were closed and the radio was playing. Because Hood and Swinton drew their guns and because they were dressed in plain clothes, Campbell believed that he was being carjacked. Panicked, he threw his car into reverse and backed into another car. He then drove forward either at Hood or in his direction. Hood fired four shots at Campbell’s car, three of which struck Campbell. The shot that injured Campbell most severely, the last of the four, arguably was not discharged until after his vehicle was pulling away from the officers. No bullets hit Grazier, though she was showered in broken glass.

Following an inquiry, the Philadelphia Police Department determined that Hood violated police Directives 10⁴ and 92, which govern the use of deadly force and vehicle investigations, respectively. Hood was suspended thirty days for using his firearm improperly. Swinton was investigated but not disciplined. He neither drove the unmarked police car nor fired any shots at Campbell’s car.

The City has promulgated numerous directives, like Directives 10 and 92, to inform its officers of proper procedures. In addition, the City responded to this incident consistently with its established procedure of investigating all firearms discharges by its police officers. When the City finds a violation, it disciplines the offending officer, including requiring a full day of firearms instruction. Furthermore, the City requires annual firearms retraining for all officers. The plaintiffs do not appear to claim that the City did not investigate these incidents and discipline the offending officers. They question the level of discipline and training, contending, among other things, that more extensive firearms retraining was necessary.

II. Discussion

We address first the plaintiffs’ municipal liability claim, then their claim that the Court erred in instructing the jury on the claims against the individual officers, and last the claim that the District Court erred by not overturning the jury’s verdict of no liability.

A. Municipal Liability

The District Court granted the City’s motion for judgment as a matter of law under Federal Rule of Civil Procedure 50(a). We exercise plenary review over that decision. See Duquesne Light Co. v. Westinghouse Elec. Corp., 66 F.3d 604, 613 (3d Cir.1995). “A district court should grant such a motion only if, viewing all the evidence in favor of the nonmoving party, no reasonable jury could find liability on a particular point.” Id. (citing McDaniels v. Flick, 59 F.3d 446, 454 (3d Cir.1995)).

The plaintiffs argue that the City is liable because it followed a policy of failing to train its officers in proper firearm and vehicle investigation techniques. The District Court concluded that no reasonable jury could find municipal liability from the facts that plaintiffs allege. In its post-trial memorandum, the District Court added another rationale for this ruling: the City cannot be liable on a failure to train theory for conduct that a jury determined did not violate the plaintiffs’ constitutional rights. City of Los Angeles v. Heller, 475 U.S. 796, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986) (per curiam). Either reason independently supports the Court’s judgment for the City.

1. Municipal liability requires constitutional harm

The District Court correctly determined that any error in granting judgment for the City at the close of the plaintiffs’ case would have been rendered harmless by the jury’s verdict of no liability against Hood and Swinton. There cannot be an “award of damages against a municipal corporation based on the actions of one of its officers when in fact the jury has concluded that the officer inflicted no constitutional harm.” Heller, 475 U.S. at 799, 106 S.Ct. 1571. Because the jury in this case found no constitutional violation, Heller precludes a finding of municipal liability against the City. This conclusion follows naturally from the principle that municipal liability will only lie where municipal action actually caused an injury. See City of Canton v. Harris, 489 U.S. 378, 390, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) (observing that a City “may be held hable if its policy actually causes injury”) (emphasis added).⁵

2. No reasonable jury could find liability on the merits.

Even if Heller did not bar municipal liability, the District Court correctly rejected on the merits the plaintiffs’ claim against the City. The Supreme Court set out the framework for establishing municipal liability on a failure to train theory in Harris, 489 U.S. at 388, 109 S.Ct. 1197, which drew on the principles announced in Monell v. Dept. of Social Services, New York City, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). A City’s failure to train its police officers must reflect a deliberate or conscious choice by policymaking officials, such that one could call it the City’s policy or custom. The failure to train must “amount[] to deliberate indifference to the rights of persons with whom the police come into contact.” Harris, 489 U.S. at 388, 109 S.Ct. 1197; see also Bd. of County Comm’rs of Bryan County v. Brown, 520 U.S. 397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). Moreover, the City’s decisions must be the “moving force” behind an actual constitutional violation. Harris, 489 U.S. at 389, 109 S.Ct. 1197.

“The scope of failure to train liability is a narrow one.” Brown v. Muhlenberg Tp., 269 F.3d 205, 215 (3d Cir.2001). This is particularly true where, as here, the plaintiffs merely allege that a different training program than the one in place would have been more effective. See id. at 216 (“To survive summary judgment on a failure to train theory, the [plaintiffs] must present evidence that the need for more or different training was so obvious and so likely to lead to the violation of constitutional rights that the policymaker’s failure to respond amounts to deliberate indifference.”) (citation omitted).

Plaintiffs did not introduce evidence sufficient to support a jury finding that the City’s police training is so obviously inadequate that it amounts to deliberate indifference to the rights of its citizens. Brown, 269 F.3d at 216. The City enforces directives that reflect proper police procedure. The directives require officers to use force only as a last resort to avoid death or serious bodily injury, and to take all reasonable steps to avoid making the use of force necessary. Other directives instruct officers on proper vehicle investigation techniques and discourage vehicle stops by unmarked officers. "When the City finds a violation, it retrains that officer in the proper use of firearms and metes out disciplinary measures if appropriate. Ironically, this very case involves an example of the City’s disciplinary process in motion. The plaintiffs complain that the City provides insufficient “field training” and fails to instruct its officers in “shooi/no shoot” procedures. However, the evidence showed that the City does provide extensive on-the-job training, if not always in precisely the form that plaintiffs would prefer.

Moreover, even if plaintiffs could show deliberate indifference, they would also have to prove that the City’s inadequate training policies were the “moving force” behind their injuries. Harris, 489 U.S. at 389, 109 S.Ct. 1197; Bryan County, 520 U.S. at 405, 117 S.Ct. 1382. This is at base a causation requirement. See Bryan County, 520 U.S. at 404, 117 S.Ct. 1382 (stating that the “moving force” standard requires a “direct causal link between the municipal action and the deprivation of federal rights”). As the Supreme Court said in Harris:

Neither will it suffice to prove that an injury or accident could have been avoided if an officer had had better or more training, sufficient to equip him to avoid the particular injury-causing conduct. Such a claim could be made about almost any encounter resulting in injury, yet not condemn the adequacy of the program to enable officers to respond properly to the usual and recurring situations with which they must deal. And plainly, adequately trained officers occasionally make mistakes; the fact that they do says little about the training program or the legal basis for holding the city liable....

[F]or liability to attach in this circumstance, the identified deficiency in a city’s training program must be closely related to the ultimate injury.

489 U.S. at 390-91, 109 S.Ct. 1197. In this case, plaintiffs cannot point to evidence that the officers cut them off and shot at their car because they were trained to do so. To the contrary, the directives instruct officers to follow different procedures. In this context, the District Court properly granted the City’s motion for judgment as a matter of law.

B. The Jury Charge and Verdict Form

Plaintiffs argue that the jury charge did not sufficiently emphasize points in their favor, that the charge incorrectly referred to “unreasonable force” rather than “excessive force,” and that the jury should have been given a special interrogatory on whether a seizure occurred. None of these arguments is persuasive.

1. Particular emphasis in the jury charge

Plaintiffs raise a series of complaints to the effect that the jury charge should have highlighted specific reasons permitting the jury to find in their favor. First, they contend that the judge should have told the jury to look at the defendants’ pre-seizure conduct.⁶ Instead, the judge instructed the jury that “[a]ll the events transpiring during the officer’s encounter with the plaintiffs can be considered in evaluating the reasonableness of Hood’s shooting.” Second, plaintiffs argue that the judge should have told the jury that Hood and Swinton may have acted unreasonably if they failed to identify themselves properly while working a plainclothes detail. Again, the District Court limited its instruction to more general statements about the meaning of reasonableness.⁷ Third, the plaintiffs argue that the District Court erred by informing the jury that Officer Hood’s suspension for violating police procedure does not necessarily prove that he acted unreasonably under the Fourth Amendment. In each instance about which the plaintiffs complain, the judge told counsel that he would instruct the jury on the established understanding of reasonableness for excessive force claims, but that counsel was free to argue more specific points in their favor at closing.

We review the District Court’s decision to use particular language in the jury charge for abuse of discretion. Cooper Dist. Co. v. Amana Refrigeration, Inc., 180 F.3d 542, 549 (3d Cir.1999). We have said that, in evaluating jury instructions, we shall only find discretion abused “if the instruction was capable of confusing and thereby misleading the jury.” United States v. Fischbach & Moore, Inc., 750 F.2d 1183, 1195 (3d Cir.1984); see also Bolden v. S.E. Pa. Transp. Auth., 21 F.3d , 33 (3d Cir.1994) (same) (citing Waldorf v. Shuta, 896 F.2d 723, 740 (3d. Cir.1990)). Likewise, the “district court has substantial discretion with respect to specific wording of jury instructions and need not give [a] proposed instruction if essential points are covered by those that are given.” Douglas v. Owens, 50 F.3d 1226, 1233 (3d Cir.1995) (citing Heller Int’l Corp. v. Sharp, 974 F.2d 850, 860 (7th Cir.1992)).

[y]ou must determine whether the amount of force used to effect the stop was that which a reasonable officer would have employed in effectuating the stop under similar circumstances. In making this determination, you may take into account the reason for the stop, the severity of the crime or the violation, whether plaintiffs posed an immediate threat to the safety of the defendants or others, and whether the plaintiffs actively resisted or attempted to evade the stop.

A District Court does not abuse its discretion by refusing to emphasize legal inferences favoring one side. Emphasizing arguable inferences to jurors is the job of advocates, not courts. See Brewer v. City of Napa, 210 F.3d 1093, 1097 (9th Cir.2000) (finding no abuse of discretion in the District Court’s refusal in an excessive force case to apply the law more specifically to the facts in its jury charge because “the instructions given ‘fairly and adequately cover[ed] the issues presented,’ and provided Brewer with ample room to argue his theory of the case to the jury, i.e., that [the officers] .had options available to them other than ordering a police dog to attack.”) (citation omitted) (emphasis added); Alexander v. Conveyors & Dumpers, Inc., 731 F.2d 1221, 1227 (5th Cir.1984) (per curiam) (“Counsel had the opportunity to emphasize the matters in his favor contained in these proposed instructions during jury argument and we decline to hold that the trial court erred in refusing them.”).

Moreover, the District Court’s charge that violations of police procedure are not necessarily constitutional violations comports with established Supreme Court precedent. See Davis v. Scherer, 468 U.S. 183, 193-95, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984). That portion of the charge did not cross the prejudicial propriety line because its only effect was to avoid a possible misunderstanding by the jury.

In a related assertion of error, the plaintiffs contend the Court should have instructed the jury that an officer acts unreasonably if his improper conduct creates the situation making necessary the use of deadly force. See Estate of Starks v. Enyart, 5 F.3d 230, 234 (7th Cir.1993); Gilmere v. City of Atlanta, 774 F.2d 1495, 1501-02 (11th Cir.1985) {en banc). However, we also note that the plaintiffs never requested the jury charge that our dissenting colleague would issue - “that conduct on the officers’ part that unreasonably precipitated the need to use deadly force may provide a basis for holding that the eventual use of deadly force was unreasonable in violation of the Fourth Amendment.” (Plaintiffs instead sought a charge that linked Fourth Amendment reasonableness to compliance with local police regulations and thus would have made constitutional standards vary from jurisdiction to jurisdiction. See supra note 6.) In the absence of such á ■ request by the plaintiffs, we review the .District Court’s actual instruction for plain error only. United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

Our Court has not endorsed the doctrine discussed in Gilmere and Starks and, in fact, has recognized disagreement among circuit courts on this issue. See Abraham v. Raso, 183 F.3d 279, 295-96 (3d Cir.1999). In Abraham, we announced that “[w]e will leave for another day how these cases should be reconciled.” Id. at 296. In this context, the District Court did not abuse its discretion by refusing to instruct the jury on a doctrine that our Circuit has not adopted. As such, plain error of course did not occur.

Our dissenting colleague also parts with us on this issue in a more general way. Jury instructions, he writes, are “the didactic exercise of providing the jury with guidance as to how ... [legal] principles apply to the evidence presented and how the factual disputes bear on the ultimate outcome.” While acknowledging “the key role of counsel in arguing the facts to the jury and explaining their significance,” nonetheless our colleague believes that “there are some cases in which the failure to explain the significance of key facts does constitute a breach of the trial judge’s duty,” and “this is one of them.”

Our pause with this approach is simply this: to adopt it puts courts on the slippery slope to interfering with (indeed substituting for) counsel’s advocacy and ultimately intruding on the jury’s job of finding facts. What our colleague suggests may, in a perfect world with a perfect jury instruction, not interpose the judge in the jury room. But our world is not perfect. Until it is, engrafting evidence to argument is the home turf of counsel. Laying out a level (even if plain) canvas for counsel to color is the court’s model role. When (as in this case) a court does this, it is hardly an abuse of discretion.

2. Use of “unreasonable force” rather than “excessive force” on verdict form

Plaintiffs contend that the Court erred by drafting a verdict slip that asked whether the defendants used “unreasonable force” when it should have said “excessive force.” This contention merits little discussion. The Fourth Amendment refers to “unreasonable searches and seizures” - the phrase “excessive force” is merely a shorthand for one type of Fourth Amendment claim. We do not believe that this slightly different terminology affected the jury’s outcome.

3. Lack of a special interrogatory on seizure

Plaintiffs also argue that the District Court should have instructed the jury to find whether a seizure occurred. The Court declined to do so because it found a seizure as a matter of law. That ruling benefited the plaintiffs. They have no right to a jury finding on an issue decided in their favor as a matter of law.

C. New Trial Motion

Plaintiffs sought a new trial under Federal Rule of Civil Procedure 59 on the basis that the verdict was against the weight of the evidence. The District Court denied that motion. We review the denial of a new trial motion for abuse of discretion. Waldorf v. Shuta, 142 F.3d 601, 621 (3d Cir.1998). “In reviewing the district court’s denial of [a] new trial motion, we must view the evidence in the light most favorable to the non-moving party.” Caruolo v. John Crane, Inc., 226 F.3d 46, 54 (2d Cir.1999) (citation omitted). We have said that “new trials because the verdict is against the weight of the evidence are proper only when the record shows that the jury’s verdict resulted in a miscarriage of justice or where the verdict, on the record, cries out to be overturned or shocks our conscience.” Williamson v. Consol. Rail Corp., 926 F.2d 1344, 1353 (3d Cir.1991).

This case does not approach the high threshold for granting a new trial. The jury heard (as is typical) occasionally inconsistent testimony from both sides and could have concluded that Hood and Swin-ton acted in reasonable fear for their lives when Hood fired his gun at Campbell’s oncoming car. Established Fourth Amendment precedent gives officers considerable leeway when making “split-second judgments - in circumstances that are tense, uncertain, and rapidly evolving - about the amount of force that is necessary in a particular situation.” Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 (1989). The proper standard is not what an officer would do “with the 20/20 vision of hindsight.” Id. at 396, 109 S.Ct. 1865. In deciding an appeal from a judgment entered after a jury trial, we must respect the jury’s important role in our legal system and therefore may not substitute our view of the evidence for that of the jury.

* * * * * ‡

The District Court’s judgment supporting the jury verdict is affirmed.

1 . We have jurisdiction under 28 U.S.C. § 1291, which permits appeals from final decisions of the district courts.

2 . See Directive 92(I)(A)(1) ("It is preferable that an officer making a stop for a traffic violation be in uniform.”); Directive 92(II)(J) ("Police Officers in plainclothes and detectives will not routinely make traffic stops unless the actions of the violator are a clear danger to pedestrian or vehicular traffic and no marked unit is readily available.”).

3 . It appears that this particular maneuver also violated Philadelphia Police Department regulations. See Directive 92(II)(A) ("Personnel will make every effort to direct the operator to a suitable stopping point where normal traffic flow will not be impeded.”).

4 . Directive 10 instructs officers, among other things, to "exhaust all other reasonable means of apprehension and control before resorting to the use of deadly force.”

5 . Our Court has distinguished Heller in a substantive due process context, Fagan v. City of Vineland, 22 F.3d 1283, 1291-94 (3d Cir.1994), but not in a way relevant to this case. In Fagan, we observed that a municipality could remain liable, even though its employees are not, where the City’s action itself is independently alleged as a violation and the officer is merely the conduit for causing constitutional harm. Id. at 1292. We were concerned in Fagan that, where the standard for liability is whether state action "shocks the conscience,” a city could escape liability for deliberately malicious conduct by carrying out its misdeeds through officers who do not recognize that their orders are unconstitutional and whose actions therefore do not shock the conscience. Id. Here, however, like Heller and unlike Fagan, the question is whether the City is liable for causing its officers to commit constitutional violations, albeit no one contends that the City directly ordered the constitutional violations. Therefore, once the jury found that Hood and Swinton did not cause any constitutional harm, it no longer makes sense to ask whether the City caused them to do it. Additionally, recognizing that Heller had addressed a closely related issue, we carefully confined Fagan to its facts: a substantive due process claim resulting from a police pursuit. Id. By contrast, both this case and Heller involve primarily a Fourth Amendment excessive force claim.

6 . The plaintiffs requested the following as part of the jury charge:

When an officer's conduct amounts to more than a minor departure from internal department policy, and particularly where the officer engaged in intentional misconduct, such as when he intentionally does an act knowing it is wrong, you may find that the officer’s ... acts creating the need for force are important in evaluating reasonableness of the officer's eventual use of force in this case. Therefore, you may consider that there was more than a minor departure from Internal Department Policy when it indicates in the Internal Affairs Report itself that Officers Hood and Swinton improperly blocked Mr. Campbell’s car in front, failed to radio, and/or communicate important information regarding the car for an investigation as directed by Directive 92, exited their unmarked vehicle, dressed in plainclothes civilian attire, approached the Campbell car they blocked from the front, and then placed themselves in harm[’]s way.

Appellant’s Br. 23-24.

7 . Specifically the Court instructed the jury that