Grazier Ex Rel. White v. City of Philadelphia

Opinions of the United

2003 Decisions States Court of Appeals

for the Third Circuit

5-9-2003

Grazier v. Philadelphia

Precedential or Non-Precedential: Precedential

Docket 01-3284

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PRECEDENTIAL

Filed May 9, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 01-3284

TIERRA GRAZIER, MINOR, BY AND THROUGH HER

MOTHER TONIA WHITE; AND DWAYNE CAMPBELL,

Appellants

v.

THE CITY OF PHILADELPHIA; THOMAS HOOD, POLICE

OFFICER, BADGE NO. 7426; ANTHONY SWINTON,

POLICE OFFICER, BADGE NO. 6819, INDIVIDUALLY,

AND IN THEIR OFFICIAL CAPACITY AS POLICE

OFFICERS FOR THE CITY OF PHILADELPHIA

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 98-cv-06063)

District Judge: Honorable Petrese B. Tucker

Argued June 24, 2002

Before: BECKER, Chief Judge,* ALITO and AMBRO, Circuit

Judges

(Opinion filed: May 9, 2003)

* Judge Becker completed his term as Chief Judge on May 4, 2003.

2

Garrett D. Page, Esquire (Argued)

Richard W. Rogers & Associates

619 DeKalb Street

Norristown, PA 19401

Attorney for Appellant

Marcia Berman, Esquire

Eleanor N. Ewing, Esquire (Argued)

City of Philadelphia,

Law Department

1515 Arch Street

One Parkway

Philadelphia, PA 19102

Richard G. Tuttle, Esquire

James A. Rocco, III, Esquire

(Argued)

Kolansky, Tuttle & Rocco

1429 Walnut Street, Suite 1300

Philadelphia, PA 19102

Attorneys for Appellees

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,

3

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 multi-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

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

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.

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

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 (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. 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 (1989) (observing that a City “may be held

liable if its policy actually causes injury”) (emphasis added).5

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.

6

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, which drew on the

principles announced in Monell v. New York City Dept. of

Social Services, 436 U.S. 658 (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; see also Bd. of County Comm’rs of Bryan County v.

Brown, 520 U.S. 397, 404 (1997). Moreover, the City’s

decisions must be the “moving force” behind an actual

constitutional violation. Harris, 489 U.S. at 389.

“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

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.

7

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 “shoot/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; Bryan County, 520

U.S. at 405. This is at base a causation requirement. See

Bryan County, 520 U.S. at 404 (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

8

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. 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

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

9

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

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

[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.

10

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 29, 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)).

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

(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

11

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 a

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 (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

12

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 benefitted 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

13

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 Swinton 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 (1989). The proper standard is

not what an officer would do “with the 20/20 vision of

hindsight.” Id. at 396. 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.

14

BECKER, Chief Judge,* Dissenting:

I join in Part II.A of the majority opinion (Municipal

Liability), as well as Parts II.B.2 and 3 (use of

“unreasonable force” in jury charge and lack of a special

interrogatory on seizure). I disagree with, hence I do not

join in Part II.B.1 (Particular Emphasis on Jury Charge); I

therefore write separately on that issue. Because I would

reverse and remand for a new trial on account of what I

view as a deficiency of the jury charge, I do not reach Part

II.C (New Trial Motion).

I.

As in most cases of this genre, the facts are critical.

Especially important are the following: (1) that Officers

Hood and Swinton were in plain-clothes; (2) that under

Philadelphia Police Regulations, officers in plain-clothes

may not make traffic stops, hence Hood and Swinton

violated this policy in stopping Campbell’s car; (3) that the

officers also violated Philadelphia Police regulations by

pulling perpendicularly in front of Campbell’s car to stop it;1

(4) that Campbell believed that he was being carjacked; and

(5) that the shot that maimed Campbell, the fourth shot

fired by the officers, was arguably not discharged until after

Campbell’s vehicle was heading away from the officers at

which time he could not have posed a danger to them. The

majority opinion notes these facts but does not

acknowledge that: (6) under these circumstances, it was

reasonable for Campbell, who denies that the slovenly-

dressed officers showed identification, thought that he

might be facing a carjacking, which in turn furnished the

motivation to escape; and (7) under these circumstances,

the perceived need to use force was arguably created by the

misconduct of the officers themselves.

* Judge Becker completed his term as Chief Judge on May 4, 2003.

1. The Police Department’s Internal Affairs Division found that Hood

violated Police Department Directive 10, regarding use of deadly force,

and Directive 92, which instructs officers in plain-clothes not to make

stops for traffic violations.

15

II.

In my view, these facts and permissible inferences posed

an important legal issue with which the District Court

should have but did not come to grips, resolution of which

should have resulted in a charge much more favorable to

the plaintiffs. In Abraham v. Raso, 183 F.3d 279 (3d Cir.

1999), we established, as a general matter, the relevance of

officers’ pre-seizure conduct to determining whether use of

force during the seizure is excessive. Raso left open,

however, the question of how much weight an officer’s

unreasonable creation of danger should be given in the

calculus of whether the officer’s use of force was ultimately

reasonable under the Fourth Amendment.

Without laying down a blanket rule (which perforce I

obviously cannot do as a dissenting judge) I would decide

that issue by holding that if the officer’s conduct

unreasonably creates the need to use deadly force in self-

defense, that conduct may render the eventual use of

deadly force by the officer unreasonable in violation of the

Fourth Amendment, even if the officer reasonably believed

that such force was necessary to prevent death or severe

bodily injury. See Estate of Starks v. Enyart, 5 F.2d 230,

234 (7th Cir. 1993) (“Police officers who unreasonably

create a physically threatening situation in the midst of a

Fourth Amendment seizure cannot be immunized for the

use of deadly force.”); cf. Gilmere v. City of Atlanta, 774

F.2d 1495, 1501 (11th Cir. 1985) (“[A] moment of legitimate

fear should not preclude liability for a harm which largely

resulted from [an officer’s] own improper use of his official

power.”).

III.

The art of instructing the jury is not the rote recitation of

controlling legal principles, quoted verbatim from the case

law, but the didactic exercise of providing the jury with

guidance as to how those principles apply to the evidence

presented and how the factual disputes bear on the

ultimate outcome. Cf. Ayoub v. Spencer, 550 F.2d 164, 167

(3d Cir. 1977) (“While a comprehensive review of the

evidence is not generally required, the District Court’s

16

failure, here to relate the parties’ contentions to the law . . .

left the jury without guide or compass to aid it in rationally

reaching a decision.”). In my view, the District Court’s

“vanilla” charge — “you may consider all the factors (argued

by counsel)” — was not adequate because it lacked

guidance on the issue just described in Part II of this

(dissenting) opinion.

A.

First, I believe that it was an abuse of discretion for the

trial judge not to explain to the jury at least the general

principle 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. The closest the District Court came to

instructing the jury on this point was when it directed the

jury to consider “the totality of the circumstances” and “[a]ll

of the events transpiring during the officers’ encounter.”

The instructions preceding and following these particular

instructions, however, focused on whether a reasonable

officer in Hood’s position would have believed that he was

in danger of death or severe bodily injury when he fired the

shots:

In evaluating the reasonableness of the use of force in

this situation, you must ask yourselves the following

question: giving due regard to the pressures faced by

the police, was it objectionably [sic] reasonable for the

officer to believe, in light of the totality of the

circumstances, that the subject posed a significant

threat of death or serious physical injury to the officer

or others, and that deadly force was necessary to

prevent the suspect from causing serious physical

injury or death.

. . .

The determination of reasonableness must embody

allowance for the fact that police officers are forced to

make split-second judgments — in circumstances that

are tense, uncertain and rapidly evolving — about the

17

amount of force that is necessary in a particular

situation. All of the events transpiring during the

officers’ encounter with the plaintiffs can be considered

in evaluating the reasonableness of the shooting.

A.124-26.

This charge clearly favored the defendants. In this

context, the jury was likely to have understood the “totality

of the circumstances” and “[a]ll of the events transpiring

during the officers’ encounter” to refer to the circumstances

that would lead a reasonable officer in Hood’s position to

believe that he was in danger of death or severe bodily

injury at the time he fired, and not to conduct on the

officers’ part that unnecessarily precipitated the need to use

deadly force.

As I would decide the question reserved in Raso, an

officer’s use of deadly force may violate the Fourth

Amendment even if the officer reasonably believed that the

use of deadly force was necessary to prevent death or

severe bodily injury. What the District Court told the jury

was that an officer “is justified in the use of any force which

is believed to be necessary to effect the stop and of any

force which he or she reasonably believes to be necessary

to defend himself or another from serious bodily injury.”

A.126. This instruction, in my view, improperly prevented

the jury from finding for the plaintiffs if the jury concluded

that a reasonable officer in Hood’s position would have

believed he was in danger of being run over at the time he

fired the shots but that the officers had unreasonably

placed themselves in a position in which the use of deadly

force would be necessary. Inasmuch as I believe that the

District Court’s failure to charge in accordance with the

principles outlined was legal error (which itself is an abuse

of discretion), I find grounds to set aside the judgment.

B.

Second, I think that the jury needed guidance on the

“signature” facts of the case: that the defendants were

plain-clothes officers, forbidden by Regulations to make

traffic stops, and that the officers were driving an

unmarked car (in a high crime neighborhood) which they

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pulled perpendicularly in front of plaintiffs’ car to make a

traffic stop, also in violation of department policy. I believe

the jury should have been told explicitly that it could

consider such matters in determining the reasonableness of

the officers’ conduct.

I also think that the court should have explained to the

jury the relevance of the disputed questions of fact, such as

whether the officers exited the car with guns drawn and

failed to identify themselves, as Campbell testified, and

whether a reasonable officer in Hood’s position would know

that he was out of danger when he fired the last shot,

which entered the back of Campbell’s car and lodged in the

base of his brain. Plaintiffs’ accident expert, who analyzed

each of the four shots fired by Hood and the position of the

car at the time of the shots, testified that if Hood fired the

shots in one second, which the expert thought was likely,

the final shot, which went into the car’s back windshield,

would have been fired when the car was 32 feet up the road

from Hood. A.394. If, as Hood testified, he fired the shots in

two seconds, the final shot would have been fired,

according to plaintiffs’ expert, when the car was 120 feet

from Hood. A.394. This testimony was unrebutted by any

defense expert.

C.

Notwithstanding the foregoing discussion, I do not

maintain that the District Court has an obligation to review

all the evidence with the jury and to explain to it the

significance of all major evidence in the case.

Concomitantly, I acknowledge the key role of counsel in

arguing the facts to the jury and explaining their

significance. But 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; in my view this is one of

them. A trial judge who simply tells the jury to consider the

totality of the circumstances and leaves it to the lawyers to

point out the particular circumstances favorable to their

clients, in my view, fails to “adequately submit[ ] the issues

in the case to the jury.” In re Merritt Logan, Inc., 901 F.2d

349, 359 (3d Cir. 1990).

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I add that I do not believe that to explain the significance

of the facts that I have stressed, against the background of

the applicable law (which under my view of the case the

District Court did not cover) would constitute “slanting.”

The facts are the facts, and they can be set forth in a

balanced way. The jury could also have been instructed on

the relevance of the evidence supporting the defendants’

case. The mere fact that some facts favor one side or

another is no reason not to explain their significance. The

judge’s job is to give guidance to a lay jury, not to leave it

adrift.

IV.

I have no idea what a properly charged jury would do in

this case. The jury may believe that the officers, genuinely

fearing for their lives, acted reasonably. But it may also

believe that Campbell, who had just come from dropping

his grandmother off at church, with his minor cousin Tierra

Grazier being the passenger in the rear seat, would prevail.

At all events, I think that the failure of the District Court to

give the jury adequate guidance on either the law or the

facts constitutes an abuse of discretion. I would therefore

set aside the judgment and grant the plaintiffs a new trial.

I respectfully dissent.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit