Filed: Jan. 08, 2014
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-1994 JEFFREY GRAY, Individually, as the next best friend of and Personal Representative of the Estate of Jarrel Gray; TANYA THOMAS, Individually, as the next best friend of and Personal Representative of the Estate of Jarrel Gray, Plaintiffs - Appellants, v. BOARD OF COUNTY COMMISSIONERS OF FREDERICK COUNTY; CHARLES JENKINS, Sheriff, Frederick County Sheriff’s Office, in both his official and individual capacities; RUDOLPH
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-1994 JEFFREY GRAY, Individually, as the next best friend of and Personal Representative of the Estate of Jarrel Gray; TANYA THOMAS, Individually, as the next best friend of and Personal Representative of the Estate of Jarrel Gray, Plaintiffs - Appellants, v. BOARD OF COUNTY COMMISSIONERS OF FREDERICK COUNTY; CHARLES JENKINS, Sheriff, Frederick County Sheriff’s Office, in both his official and individual capacities; RUDOLPH T..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1994
JEFFREY GRAY, Individually, as the next best friend of and
Personal Representative of the Estate of Jarrel Gray; TANYA
THOMAS, Individually, as the next best friend of and
Personal Representative of the Estate of Jarrel Gray,
Plaintiffs - Appellants,
v.
BOARD OF COUNTY COMMISSIONERS OF FREDERICK COUNTY; CHARLES
JENKINS, Sheriff, Frederick County Sheriff’s Office, in both
his official and individual capacities; RUDOLPH TORRES,
Deputy Sheriff, Frederick County Sheriff’s Office, in both
his official and individual capacities; FREDERICK COUNTY,
MARYLAND,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:08-cv-01380-WDQ)
Argued: October 29, 2013 Decided: January 8, 2014
Before KEENAN, WYNN, and THACKER, Circuit Judges.
Affirmed by unpublished opinion. Judge Keenan wrote the
opinion, in which Judge Wynn and Judge Thacker joined.
ARGUED: Gregory L. Lattimer, LAW OFFICES OF GREGORY L. LATTIMER,
Washington, D.C., for Appellants. Sandra Diana Lee, KARPINSKI,
COLARESI & KARP, PA, Baltimore, Maryland, for Appellees. ON
BRIEF: Ted J. Williams, Washington, D.C., for Appellants.
Daniel Karp, KARPINSKI, COLARESI & KARP, Baltimore, Maryland,
for Appellees.
Unpublished opinions are not binding precedent in this circuit.
2
BARBARA MILANO KEENAN, Circuit Judge:
Jeffrey Gray and Tanya Thomas (collectively, the
plaintiffs), who are the parents of the decedent Jarrel Gray
(Gray) and the representatives of his estate, filed the
complaint that is the subject of this appeal. In their
complaint, the plaintiffs primarily alleged that the actions of
Deputy Sheriff Rudolph Torres (Torres) leading to Gray’s death
violated his constitutional rights. The plaintiffs asserted
that Torres’ use of a taser twice during his encounter with
Gray, including once after Gray had fallen to the ground, was
unreasonable under the circumstances and constituted excessive
force. The case was tried before a jury, which returned a
verdict in Torres’ favor.
On appeal, the plaintiffs argue that: (1) the district
court erred in instructing the jury; (2) the jury’s verdict was
against the weight of the evidence; and (3) the verdict form was
internally inconsistent and suggested that the jury was not
unanimous in its decision. Upon our review, we affirm the
district court’s judgment.
I.
Although many substantive details of the events at issue
were disputed at trial, we set forth the facts of this case in
3
the light most favorable to Torres, the prevailing party at
trial. See King v. McMillan, 594 F.3d 301, 306 (4th Cir. 2010).
The evidence showed that about 5:00 a.m. on November 18, 2007,
several residents in the area of Gresham Court East in
Frederick, Maryland, made emergency telephone calls reporting
that people were fighting in the street. The police dispatcher
informed officers by radio that there were “disorderly”
individuals at that location. Torres, a deputy sheriff in the
Frederick County Sheriff’s Office who responded to the
dispatcher’s call, was not accompanied by other officers. 1
Upon arriving at the scene, Torres observed two males,
later identified as Jerame Duvall and Gray, engaged in a
fistfight. Torres also observed a third male later identified
as Charles Kahiga, who was standing near the fighting men, and a
female later identified as Sara Ismach, who was sitting inside a
vehicle parked nearby. Gray and Duvall stopped fighting as
Torres parked and stepped out of his patrol car.
Duvall began walking toward Ismach’s car when Torres
ordered him to stop and to “[g]et on the ground.” Duvall
refused to comply with Torres’ orders, and repeatedly used
1
Although he was alone at the time of the dispatcher’s
call, Torres decided to respond to the call because the two
officers who originally were dispatched were about fifteen
minutes away from the fight scene, while Torres was relatively
close to that location.
4
profane language in response to Torres’ commands. Duvall began
walking toward Torres, while acting in an “enraged” manner. In
response to Duvall’s advances, Torres removed his conducted
energy device, commonly known as a “taser,” from its holster,
pointed the taser at Duvall, and again ordered Duvall to “[g]et
down on the ground.” Duvall complied with this order and
remained in a position on the ground where Torres could see
Duvall’s hands, although Duvall continued yelling at Torres
during this time. 2
Torres turned his attention to Gray, who also used profane
language while refusing Torres’ orders to lie down on the
ground. Gray initially was not facing Torres and had placed his
hands inside his pants near the front of the waistband. Torres
did not know whether Gray possessed a weapon, but later noticed
that there was a “bulge” near where Gray’s hands were located
inside his pants.
Torres instructed Gray to “[g]ive me your hands. Let me
see your hands. Let me see your hands.” When Gray refused to
comply with this order, Torres warned Gray repeatedly, “Let me
2
At some point after Torres’ arrival on the scene, but
before Duvall complied with Torres’ orders, Kahiga complied
without incident with Torres’ commands to “show his hands and
get on the ground.” During this same period, Ismach complied
with Torres’ commands to stay inside the vehicle with her hands
placed on the steering wheel.
5
see your hands, or I’m going to tase you.” As Gray turned to
face Torres, Gray’s hands still were placed inside his pants
near his waistband, and he again refused Torres’ command to show
his hands.
At that time, Torres deployed his taser. Its probes struck
Gray, delivering an electrical current of 50,000 volts that
lasted five seconds. Gray fell forward to the ground, with his
hands lodged beneath his body near his groin area. At that
time, in accord with department policy, Torres used his police
radio to request the presence of a supervisory officer and
emergency medical services (EMS) personnel.
Although another police officer may have arrived on the
scene shortly after Torres first used his taser on Gray, Torres
thought that he remained the sole officer there. Torres
observed Gray breathing and heard him coughing after he fell to
the ground. Because Torres had observed many individuals fall
to the ground “face first” and still remain conscious, Torres
did not think that Gray was unconscious or in medical distress.
Torres considered Gray as a continuing threat because of
his earlier defiance of Torres’ orders, and because Gray’s hands
remained underneath his body. Torres continued to order Gray to
show his hands, warning on two occasions that Torres would again
discharge the taser if Gray did not comply. When Gray’s hands
remained under his body, Torres activated his taser for a second
6
time, delivering another electrical current of 50,000 volts that
lasted for five seconds.
After the second deployment of his taser, which occurred
about 20 seconds following the initial deployment, Torres
observed for the first time that additional officers had arrived
on the scene. The officers placed handcuffs on Duvall and
Kahiga, and later assisted Torres in pulling Gray’s hands out
from under his body and in placing handcuffs on him. 3 The EMS
personnel who had arrived on the scene observed that Gray was
unresponsive. Gray was taken by ambulance to a local hospital
where he was pronounced dead about two hours later. 4
The plaintiffs initiated a lawsuit against Torres in May
2008. In their Second Amended Complaint (the complaint), the
plaintiffs asserted a claim under 42 U.S.C. § 1983. They
alleged that Torres deprived Gray of his constitutional rights
based on an unreasonable seizure of his person in violation of
the Fourth and Fifth Amendments, and contended that Torres
employed excessive force during the encounter (the excessive
force claim). The plaintiffs also alleged several state law
3
The officers did not find a weapon on Gray’s person.
4
The medical examiner listed Gray’s cause of death as
“sudden death associated with restraint and alcohol
intoxication,” and could not conclude with certainty whether a
“medical causal relationship” existed between Torres’
deployments of the taser and Gray’s death.
7
claims in the complaint, including wrongful death, assault and
battery, certain claims based on the Maryland Survival Act, and
violations of Articles 24 and 26 of the Maryland Declaration of
Rights. 5
The case proceeded to a jury trial, during which the jury
heard conflicting testimony concerning the events at issue. In
several respects, Torres’ testimony differed from the accounts
offered by Ismach and Duvall. The jury also heard testimony
from Robert F. Thomas, Jr., who qualified as an expert witness
on the subject of law enforcement practices and procedures.
Thomas testified that Torres’ deployment of his taser on
both occasions was reasonable and consistent with established
law enforcement practices. Thomas stated that Torres was faced
with a “dynamic,” rapidly evolving situation in which he was
outnumbered by several individuals, and in which two of those
persons “were profanely challenging [Torres’] authority and his
issuance of commands.” With regard to the initial use of the
taser, Thomas concluded that Torres’ conduct was reasonable
5
The plaintiffs also named as defendants the Board of
County Commissioners of Frederick County (the Board) and
Frederick County Sheriff Charles Jenkins. The district court
entered an order bifurcating the claims raised against Torres
from those raised against the Board and Jenkins, and later
granted summary judgment in favor of the Board and Jenkins. The
district court also denied Torres’ motion for summary judgment
on the excessive force claim.
8
because Gray had been observed fighting, had made
confrontational statements toward Torres, and repeatedly had
refused Torres’ commands to lie down on the ground and to show
his hands.
Thomas further testified that Torres’ second deployment of
the taser also was reasonable and consistent with good law
enforcement practices. Thomas based his opinion on the fact
that Gray had fallen to the ground with his hands under his
torso in the vicinity of his waistband. Thomas explained that
the waistband area of a suspect’s clothing is known to be a
“frequent hiding place or carrying place for weapons of various
kinds.” Accordingly, Thomas opined that it was reasonable for
Torres to deploy his taser on Gray for a second time when Gray
did not comply with Torres’ commands to show his hands after
falling to the ground. 6
The case was submitted to the jury, which delivered a
verdict in favor of Torres. In responding to questions posed on
the verdict form, the jury found that: (1) Torres did not
violate Gray’s right to be free from the use of excessive force;
6
The plaintiffs presented a witness, Andrew J. Scott, III,
who also qualified as an expert in the field of police
procedures and practices. In contrast to Thomas’ conclusions,
Scott testified that, in his view, Torres’ deployment of his
taser on both occasions constituted an inappropriate, excessive,
and objectively unreasonable use of force.
9
(2) Torres assaulted or battered Gray under the common law, but
was shielded from liability because he acted in self defense or
in the defense of others; 7 and (3) the plaintiffs were not
entitled to damages for any of the additional state law claims.
The plaintiffs filed a motion for a new trial under Rule 59
of the Federal Rules of Civil Procedure, contending that the
verdict was against the weight of the evidence and was
irreconcilably inconsistent. The district court denied the
motion, and the plaintiffs timely filed a notice of appeal.
II.
A.
The plaintiffs first argue that the district court abused
its discretion in instructing the jury, because the court’s
instruction did not allow the jury to consider their excessive
force claim in an accurate and fair manner. The plaintiffs also
assert that the court erred in rejecting certain additional
instructions they requested on the subject of excessive force.
We disagree with the plaintiffs’ arguments.
7
The jury also found that Torres’ assault or battery on
Gray was not a proximate cause of Gray’s death. The jury did
not reach a verdict with respect to whether the additional state
law privilege of statutory immunity shielded Torres from
liability on the state law claims.
10
As a general matter, we review for abuse of discretion a
district court’s decision whether to give particular jury
instructions. Noel v. Artson, 641 F.3d 580, 585 (4th Cir.
2011). A party challenging a court’s choice of jury
instructions “faces a heavy burden,” due to the significant
discretion that courts have in determining which instructions
are proper and necessary.
Id. at 586. A district court abuses
its discretion in refusing to give a jury instruction only when
the proposed instruction: (1) is a correct statement of the law;
(2) is not “substantially covered” by the court’s charge to the
jury; and (3) relates to an issue so important that failure to
give the requested instruction seriously impairs a party’s
ability to make its case.
Id. at 586.
In the present case, the plaintiffs did not object to the
district court’s failure to give their proposed instructions
relating to excessive force, nor did they object to the
excessive force instruction that was provided to the jury.
Likewise, the plaintiffs did not raise in their motion for a new
trial any argument concerning the jury instructions. Because
the plaintiffs failed to make an objection “on the record,
stating distinctly the matter objected to and the grounds for
the objection,” we review for plain error the district court’s
decision with respect to the jury instructions. Fed. R. Civ. P.
11
51(c)(1), (d)(2); see Gregg v. Ham, 678 F.3d 333, 338 (4th Cir.
2012).
Under the plain error standard of review, the plaintiffs
are not entitled to a new trial unless they can establish that
(1) there was an instructional error; (2) that error is plain;
(3) that error affected the plaintiffs’ substantial rights; and
(4) that error seriously affected the fairness, integrity or
public reputation of the court’s proceedings. Gregg, 678 F.3d
at 338 (citation omitted). Upon our review of the record and
the parties’ arguments, we conclude that the plaintiffs cannot
demonstrate such plain error.
We first discuss general principles of law relating to the
subject matter of the jury instructions at issue. The Fourth
Amendment guarantees persons the “right to be free from
unreasonable searches and seizures, which encompasses the right
to be free of arrests, investigatory stops, or other seizures
effectuated by excessive force.” Schultz v. Braga, 455 F.3d
470, 476 (4th Cir. 2006); see Graham v. Connor,
490 U.S. 386,
395 (1989). The issue whether an officer used excessive force
to effect an arrest or seizure is analyzed under an “objective
reasonableness” standard that takes into account, among other
factors, whether “the suspect poses an immediate threat to the
safety of the officers or others.” See Meyers v. Baltimore
Cnty., Md.,
713 F.3d 723, 732-33 (4th Cir. 2013) (quoting
12
Graham, 490 U.S. at 396, 399). Additionally, “[t]he
‘reasonableness’ of a particular use of force must be judged
from the perspective of a reasonable officer on the scene,
rather than with the 20/20 vision of hindsight.” 8
Graham, 490
U.S. at 396.
An officer’s decisions that were mistaken, but nevertheless
were reasonable, do not “transgress constitutional bounds.”
Henry v. Purnell, 652 F.3d 524, 532 (4th Cir. 2011) (en banc).
“All actions, however, whether mistaken or otherwise, are
subject to an objective test.”
Id.
This objective reasonableness inquiry does not involve
consideration of facts or information unavailable to the officer
at the time of his actions. Sevigny v. Dicksey,
846 F.2d 953,
957 n.5 (4th Cir. 1988). Nevertheless, an officer in such
circumstances is charged with having knowledge of all
information “reasonably discoverable by an officer acting
reasonably under the circumstances.”
Id.
The excessive force instruction (Instruction 23) given by
the district court provided as follows:
8
The issue whether an officer’s use of force was excessive
within the meaning of Articles 24 and 26 of the Maryland
Declaration of Rights is analyzed under the same standard
applicable to a claim of excessive force in violation of the
Fourth Amendment. See Henry v. Purnell, 652 F.3d 524, 536 (4th
Cir. 2011) (en banc) (citing Randall v. Peaco,
927 A.2d 83, 89
(Md. Ct. Spec. App. 2007)).
13
The Fourth Amendment to the United States Constitution
protects persons from being subjected to excessive
force by law enforcement officials. . . . A law
enforcement official may only employ the amount of
force reasonably necessary under the circumstances. .
. .
To determine whether the defendant’s acts caused
[Gray] to suffer the loss of a federal right, you must
determine whether the amount of force used to effect
the stop was that which a reasonable officer would
have employed in effecting the stop under similar
circumstances. In making this determination, you may
take into account such factors as the severity of the
crime being investigated, whether [Gray] posed an
immediate threat to the safety of the defendant or
others, and whether [Gray] actively resisted the stop
or attempted to evade the stop by flight. . . . If
you find that the amount of force used was greater
than a reasonable law enforcement officer would have
employed, the plaintiff[s] will have established the
claim of loss of a federal right.
The plaintiffs assert that Instruction 23 was deficient
because it failed to inform the jury that the plaintiffs’ claims
related to each of Torres’ separate deployments of the taser on
Gray. 9 The plaintiffs further contend that Instruction 23 was
deficient because it failed to apprise the jury that (1) “force
justified at the beginning of an encounter is not justified even
seconds later if the justification for the initial force has
been eliminated,” Waterman v. Batton, 393 F.3d 471, 481 (4th
Cir. 2005); and (2) a suspect’s noncompliance, without more, is
9
The jury instructions proposed by the plaintiffs, however,
did not specifically draw the jury’s attention to the fact that
two separate taser deployments were at issue.
14
not a basis for the use of force, Florida v. Bostick, 501 U.S.
429, 437 (1991). We disagree with the plaintiffs’ arguments.
We rejected similar arguments in Noel, a case in which the
plaintiff argued that the district court erred when it failed to
give a jury instruction addressing the fact that the excessive
force claim related to three separate gunshots fired by a police
officer. 641 F.3d at 587. We held that the court’s
instructions, which essentially directed the jury to decide
whether “the officers act[ed] reasonably or [not],” provided the
jury “the appropriate legal standard and left counsel more than
enough room to argue the facts in light of that standard.”
Id.
In the present case, the jury instruction concerning the
excessive force claim similarly charged the jury with
determining whether Torres’ actions were reasonable, and
directed the jury to consider whether a reasonable police
officer would have used a similar amount of force under the
circumstances presented. This instruction properly provided the
jury with the governing legal standard, leaving latitude to the
parties to argue whether each deployment of the taser was
reasonable in light of that standard.
We also held in Noel that the district court did not abuse
its discretion in declining to give a jury instruction based on
Waterman, observing that appellate opinions “are not jury
instructions, nor are they meant to be. Rather, they articulate
15
general principles of law that decide cases.” 641 F.3d at 588.
Additionally, we explained that although district courts may use
appellate opinions as a guide in formulating jury instructions,
courts are not required to do so because appellate opinions are
not “intended to preempt a district judge’s discretion to
formulate a suitable charge for a specific trial.”
Id.
These principles discussed in Noel are equally applicable
here and guide our conclusion that the district court did not
abuse its discretion in omitting from the jury instructions the
specific points of law discussed in Waterman and Bostick.
Gray’s counsel was free to include in his argument the relevant
principles from those two decisions, and frame his view of the
evidence based on those principles.
We further conclude that the two jury instructions proposed
by the plaintiffs, relating to the criteria for determining the
reasonableness of an officer’s use of force and the objective
nature of the “reasonableness” inquiry, were “substantially
covered” by Instruction 23. 10 See Noel, 641 F.3d at 586-87. The
10
An additional instruction proposed by the plaintiffs
provided as follows: “It is excessive force for a police officer
to strike a person who is not resisting, who is not attempting
to flee and who does not pose an immediate threat to the safety
of the officer or others.” However, this proposed instruction
was an incorrect statement of law. The instruction improperly
asked the jury to decide as a factual matter whether the suspect
did not resist the officer’s commands and was not an immediate
threat to the officer, instead of considering whether “a
(Continued)
16
first of these proposed instructions would have informed the
jury that the “reasonableness” inquiry must be judged from the
perspective of a reasonable officer on the scene taking into
account the totality of the circumstances, including: the
severity of the crime being investigated; whether the suspect
constituted an immediate threat to the officer or others;
whether the suspect was actively resisting arrest or was
attempting to flee; and the time available to the officer to
assess the need for the use of force. All but the last of these
points were explicitly included in Instruction 23, and the
plaintiffs’ counsel was free to argue the time issue to the jury
in contending that Torres’ actions were not reasonable.
Accordingly, we conclude that Instruction 23 “substantially
covered” the points included in the first of the plaintiffs’
proposed instructions at issue in this appeal. See id. at 586.
The second of plaintiffs’ proposed instructions would have
again informed the jury that the “reasonableness” inquiry is an
objective test that must be judged from the perspective of an
objectively reasonable officer. This instruction would have
further informed the jury that the officer’s intentions, whether
reasonable officer on the scene” would have concluded that the
suspect was resisting or posed an immediate threat. See Graham,
490 U.S. at 395-96.
17
good or “evil,” are not relevant to the reasonableness inquiry.
We observe that Instruction 23 charged the jury with determining
“whether the amount of force used to effect the stop was that
which a reasonable officer would have employed,” which, in our
view, sufficiently informed the jury to base its decision on
what an objectively reasonable officer would have done under the
circumstances confronted by Torres. Accordingly, we conclude
that Instruction 23 “substantially covered” the points included
in the second of the plaintiffs’ proposed instructions that are
at issue here. 11 See id. Therefore, we hold that the plaintiffs
cannot demonstrate that the district court plainly erred in
instructing the jury.
B.
The plaintiffs argue that the district court abused its
discretion in denying their motion for a new trial, in which
they primarily argued that the jury’s verdict was against the
clear weight of the evidence. We disagree with the plaintiffs’
argument.
11
To the extent that Instruction 23 did not specifically
inform the jury not to consider whether Torres had good or
“evil” intentions, we conclude that such an omission did not
relate to an issue so important that “failure to give the
requested instruction seriously impair[ed] [the plaintiffs’]
ability to make [their] case.” See Noel, 614 F.3d at 586.
18
A district court may award a new trial under Rule 59 if the
verdict “(1) is against the clear weight of the evidence; (2) is
based on evidence that is false; or (3) will result in a
miscarriage of justice.” Dennis v. Columbia Colleton Med. Ctr.,
Inc., 290 F.3d 639, 650 (4th Cir. 2002) (citation omitted). We
review a court’s denial of a motion for a new trial for a “clear
abuse of discretion and will not reverse absent exceptional
circumstances.”
Id. (citation omitted).
The jury’s finding rejecting the plaintiffs’ claim that
Torres used excessive force is not against the clear weight of
the evidence. The jury was entitled to accept Torres’ testimony
that before he first deployed the taser, Gray had placed his
hands in his waistband, Torres had observed a “bulge” near where
Gray’s hands were lodged inside his pants, and Gray repeatedly
had refused Torres’ orders for Gray to show his hands. The jury
also was entitled to find credible and objectively reasonable
Torres’ assessments that he was the sole officer on the scene, 12
that Gray was not unconscious or in medical distress after the
initial use of the taser, and that Gray continued to pose a
threat on the ground because his hands were positioned
underneath his body near his groin area and he refused to
12
We observe that the plaintiffs do not argue that Torres’
perception that he was the sole officer on the scene before he
used the taser was objectively unreasonable.
19
display them after repeated orders to do so. See Graham, 490
U.S. at 396-97 (explaining that the reasonableness inquiry must
be viewed “from the perspective of a reasonable officer on the
scene,” taking into account “facts and circumstances
confronting” the officer).
In determining the objective reasonableness of Torres’
actions, the jury also was entitled to credit the expert
testimony of Thomas regarding established law enforcement
practices. In particular, the jury could have accepted Thomas’
testimony that because Gray positioned his hands in a place that
was a “frequent hiding place or carrying place” for weapons, it
was reasonable for Torres to perceive that Gray remained a
threat after he fell to the ground. Ultimately, the jury could
have agreed with Thomas’ conclusions, or could have reached the
same conclusions on its own, that both deployments of the taser
by Torres were objectively reasonable.
The plaintiffs argue, nonetheless, that the jury’s verdict
must be vacated because the second use of the taser occurred
after Gray had fallen to the ground “face first” and was
motionless. The plaintiffs contend that under those facts, as a
matter of law, Gray could not have posed an imminent threat to
Torres.
This argument lacks merit, however, because it improperly
casts the facts in the light most favorable to the plaintiffs,
20
and requires us to disregard the fundamental principle that the
“‘reasonableness’ of a particular use of force must be judged
from the perspective of a reasonable officer on the scene” and
“in light of the facts and circumstances confronting” the
officer. Graham, 490 U.S. at 396-97. Thus, the issue whether a
reasonable officer presented with like facts and circumstances
could conclude that Gray posed an imminent safety threat
remained a factual issue for the jury to decide.
Our conclusion is not altered by the plaintiffs’ reliance
on our decision in Meyers. There, we held that an award of
summary judgment in favor of an officer based on qualified
immunity constituted error with respect to the officer’s use of
a taser seven times on a disarmed suspect who had fallen to the
ground. 13 713 F.3d at 733-35.
We viewed the facts in the light most favorable to the
plaintiff because the plaintiff’s case had been terminated by
the summary judgment award. Id. at 730. In contrast to the
present case, in which Torres was required to deal with three
unrestrained suspects, the facts in Meyers involved four
officers attempting to subdue a single individual.
Id. at 728.
13
In Meyers, we upheld the grant of summary judgment in the
officer’s favor with respect to claims relating to the officer’s
three deployments of his taser on Meyers while he was standing
and advancing toward the officer. 713 F.3d at 732-33.
21
Moreover, the uses of the taser that we held to constitute
excessive force for purposes of summary judgment occurred after
the suspect had been disarmed and while three officers sat on
his back. Id. Thus, there was no doubt that the suspect was
secured and did not pose a threat to the officers after he fell
to the ground. Here, however, Torres was unsure whether Gray
was armed, and Gray had not been secured after falling to the
ground.
We therefore conclude that the jury’s verdict was not
contrary to the clear weight of the evidence. We further
conclude that the verdict did not constitute a miscarriage of
justice. 14 See Dennis, 290 F.3d at 650. Accordingly, we hold
that the district court did not abuse its discretion in denying
the plaintiffs’ Rule 59 motion with respect to his challenges to
the sufficiency of the evidence.
C.
The plaintiffs also challenge on two additional grounds the
district court’s denial of their motion for a new trial. The
14
We observe that the plaintiffs’ argument that the verdict
constitutes a miscarriage of justice is based on their
contention that the verdict is contrary to the clear weight of
the evidence. Additionally, the plaintiffs do not argue that
the verdict is based on evidence that is “false.” See Dennis,
290 F.3d at 650.
22
plaintiffs contend that the court was required to grant their
motion on the grounds that (1) the jury verdict was
irreconcilably inconsistent; and (2) the verdict form suggested
a lack of unanimity in the jury’s decision. We disagree with
these arguments.
Although the jury found that Torres had committed an
assault or battery against Gray, and also found that Torres did
not violate Gray’s federal or state constitutional rights to be
free from the use of excessive force, these findings were based
on distinct legal concepts. Under Maryland law, an assault or
battery occurs when an individual attempts or consummates an
offensive contact against another without the consent of that
person. See Nelson v. Carroll, 735 A.2d 1096, 1099 (Md. 1999);
Continental Cas. Co. Mirabile,
449 A.2d 1176, 1183 (Md. Ct.
Spec. App. 1982). The issue whether Torres’ use of the taser
constituted excessive force, however, entailed a different
inquiry requiring the jury to consider the objective
reasonableness of Torres’ conduct, including whether Torres
reasonably concluded that Gray posed an immediate threat to
Torres’ safety. 15 See
Meyers, 713 F.3d at 732-33. Accordingly,
15
We also observe that the jury concluded that Torres was
not liable for the common law tort of assault and battery, even
though his actions constituted an assault or battery, because
the jury found that Torres was acting in defense of himself or
others and used only “such force as was reasonably necessary.”
23
there is no inconsistency between the jury’s finding that
Torres’ use of the taser was an offensive contact that occurred
without Gray’s consent, but that such contact did not deprive
Gray of his constitutional right to be free from the use of
excessive force. Cf. French v. Hines, 957 A.2d 1000, 1037 (Md.
Ct. Spec. App. 2008) (“officers are privileged to commit a
battery pursuant to a lawful arrest, subject to the excessive
force limitation”) (citation and emphasis omitted).
We also reject the plaintiffs’ argument that the jury’s
notation of “consensus” next to each of the answers on the
verdict form suggested that the jury’s verdict was not
unanimous. After the jury foreperson announced the jury’s
findings with respect to each question on the verdict form, the
district court polled the members of the jury and each juror
responded individually that the verdict announced was his or her
verdict. Accordingly, we conclude that the district court did
not abuse its discretion in rejecting this ground of the
plaintiffs’ motion for a new trial.
III.
For these reasons, we affirm the district court’s judgment.
AFFIRMED
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