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Precedential or Non-Precedential: Precedential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




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003

Recommended Citation
"Grazier v. Philadelphia" (2003). 2003 Decisions. Paper 512.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/512


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                 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., 

, 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.” 

v. Flick, 

, 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, 

(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.” 

. 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, 

, 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, 

, 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 

, which drew on the
principles announced in Monell v. New York City Dept. of
Social Services, 

(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.” 

; see also Bd. of County Comm’rs of Bryan County v.
Brown, 

, 404 (1997). Moreover, the City’s
decisions must be the “moving force” behind an actual
constitutional violation. 

.
  “The scope of failure to train liability is a narrow one.”
Brown v. Muhlenberg Tp., 

, 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. 

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. 

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. 

both this case and Heller
involve primarily a Fourth Amendment excessive force claim.
                               7


in place would have been more effective. See 

(“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. 

. 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. 

; Bryan 

. This is at base a causation requirement. See
Bryan 

(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 

. 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., 

, 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., 

, 1195 (3d Cir. 1984); see also Bolden
v. S.E. Pa. Transp. Auth., 

, 33 (3d Cir. 1994)
(same) (citing Waldorf v. Shuta, 

, 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, 

, 1233 (3d Cir. 1995)
(citing Heller Int’l Corp. v. Sharp, 

, 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, 

, 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., 

, 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, 

, 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, 

, 234 (7th Cir. 1993); Gilmere
v. City of Atlanta, 

, 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, 

, 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, 

, 295-96 (3d Cir. 1999). In
Abraham, we announced that “[w]e will leave for another
day how these cases should be reconciled.” 

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, 

, 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., 

, 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., 

, 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, 

, 397 (1989). The proper standard is
not what an officer would do “with the 20/20 vision of
hindsight.” 

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, 

(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, 

,
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, 

, 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, 

, 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
                              18


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., 

, 359 (3d Cir. 1990).
                               19


   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