                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-8-2004

Gibson v. Mayor Cncl
Precedential or Non-Precedential: Precedential

Docket No. 02-3952




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                          PRECEDENTIAL

                                  Filed January 8, 2004

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                    No. 02-3952


         CHRISTOPHER GIBSON, Appellant
                         v.
MAYOR AND COUNCIL OF THE CITY OF WILMINGTON, a
   municipal corporation, MICHAEL A. BOYKIN, RITA
CROWLEY, MARLYN DIETZ, and MICHAEL MAGGITTI, all
        in their individual capacities, Appellees

   On Appeal From the United States District Court
             For the District of Delaware
               (D.C. Civ. No. 780-GMS)
     District Judge: Honorable Gregory M. Sleet

             Argued: September 8, 2003
     Before: BARRY, BECKER, and GREENBERG
                  Circuit Judges.

               (Filed January 8, 2004)
                   JAMES J. KNICELY, ESQUIRE
                    (ARGUED)
                   Knicely & Associates, P.C.
                   487 McLaws Circle, Suite 2
                   Williamsburg, VA 23185
                   THOMAS S. NEUBERGER, ESQUIRE
                   Thomas S. Neuberger, P.A.
                   Two East Seventh Street, Suite 302
                   Wilmington, DE 19801
                   Counsel for Appellant
                              2


                       JAN A. T. VAN AMERONGEN JR.,
                        ESQUIRE (ARGUED)
                       Jan A. T. van Amerongen, LLC
                       1225 King Street, Suite 301
                       Wilmington, DE 19801
                       Counsel for Appellee


                 OPINION OF THE COURT

BECKER, Circuit Judge.
  Plaintiff Christopher Gibson (“Gibson”), a ten year veteran
of the Wilmington, Delaware Police Department (“WPD”)
who was discharged for making dishonest statements to his
supervising officers, appeals the District Court’s sua sponte
grant of summary judgment on the grounds that the
regulation pursuant to which he was discharged, WPD
Directive 7.3D, the “Honesty Directive,” was vague and
overbroad. Directive 7.3D provides: “Members and
employees are required to be truthful and forthright at all
times. Violation of this regulation will result in disciplinary
action as specified for a class ‘A’ violation, with the only
applicable penalty being dismissal.” While Gibson’s
vagueness and overbreadth challenges are facial, he
contends, as required by overbreadth doctrine, that a
substantial amount of speech protected under the First
Amendment will be chilled under its aegis.
   In addition to asserting this substantive claim, Gibson
claims that the grant of summary judgment should be set
aside because the District Court failed to give notice that
summary judgment was being contemplated against him.
Concomitantly, Gibson contends that the grant of summary
judgment should be set aside because it prevented him
from pursuing his chosen trial strategy. Gibson also argues
that the District Court abused its discretion in reopening
the record once jury deliberations had begun (1) by allowing
the jury to hear audio tapes of conversations not
introduced at trial that Gibson had had with his supervisor
and with his brother Ed, a civilian employee of the WPD,
which contained some of the false statements at issue; and
                              3


(2) by supplying the jury with dictionary definitions of the
words “motivating” and “forthright” at its request. Gibson
also contends that the District Court erred in ruling against
him under Federal Rule of Evidence 405 (b) when it refused
to allow him to admit into evidence documents offered to
show that he was not dishonest.
  We will affirm the judgment in all respects. In doing so
we recognize an exception to the notice requirement of Rule
56 in those cases where summary judgment is granted sua
sponte subject to the meeting of three conditions: (1) the
point at issue is purely legal; (2) the record was fully
developed, and (3) the failure to give notice does not
prejudice the party, all of which are met here. We conclude
that the District Court did not err: (1) in rejecting Gibson’s
vagueness and overbreadth challenges; (2) in its rulings to
reopen the record to admit audio tape recordings and two
dictionary definitions for the jury’s consideration; and (3) in
denying Gibson the right to introduce into evidence
documents pertaining to Gibson’s general job performance
and good character.
I.   Facts and Procedural History
  Gibson joined the Wilmington Police Force on November
13, 1989. On July 15, 1999, he was scheduled to serve a
one day suspension for a previous failure to follow the sick
leave policy. In connection with that suspension, Gibson
was required to surrender his departmental equipment for
that one day; however, he did not turn in his equipment at
the end of his previous shift (on July 14). On July 16,
1999, Gibson was scheduled to return to work at 6:00 a.m.
On the morning of July 16, Gibson called off sick at 5:36
a.m. by placing a call to Sergeant Stevenson. When asked
to give his location, he supplied the address as 1208 Pearl
St., Wilmington. However, he was apparently calling from
401 Llangollen Blvd. in New Castle, a separate municipality
some eight miles from Wilmington. Pursuant to the City of
Wilmington Police Directive 7.1J, police officers are required
to be residents of the City of Wilmington.
 Directive 6.42 (A) (9) of the Wilmington Police Officer’s
Manual requires that an officer calling off sick:
                              4


    shall not leave his location, unless authorized by the
    Police Physician or the officer’s private physician. If the
    authorization is granted, and prior to leaving their
    reported location, it will be the responsibility of the
    officer to inform the House Sergeant of his leaving that
    reported location. The officer will also report the reason
    for leaving the location.
   During the morning of July 16, Sergeant Greg Ciotti,
Gibson’s immediate supervisor, learned that Gibson had
failed to turn in his equipment. At approximately 12:30
p.m., Ciotti went to 1208 Pearl St. to collect the equipment.
No one answered the door, but Ciotti could see that
someone was in the house. Ciotti called the WPD radio
room to confirm the address. The radio dispatcher phoned
Gibson at the call-off number he had provided that
morning. Gibson answered the radio room’s call but was
not, in reality, at the Pearl St. location. Apparently, Gibson
had instructed his sister-in-law who lives at the Pearl St.
location to re-direct his calls to New Castle. Gibson told the
radio dispatcher that he could not come to the door
because: “Ah right now, I don’t have any clothes on right
now. I’ll give ‘em a call.”
  According to the WPD, Gibson compounded his dishonest
conduct by collaborating with his brother Ed (a civilian
WPD radio room employee) to support his version of his
location that morning. In a transcript of a conversation with
his brother on the afternoon of July 16th, Gibson asks him:
“Did anybody ask you anything?” Ed replies: “Let me call
you back on an . . .” Apparently, Gibson later admitted
under questioning from Sergeant Hartsky (the police
investigator in his case who also served as prosecutor at
the administrative hearing) that Ed was referring to an
“untaped line.” Gibson also admitted that he and his
brother “c[a]me up with an idea of what should be said [to
Sergeant Ciotti] in case [the matter] came back up later.”
Additionally, he admitted that they agreed to say that
Gibson had been in his room all along.
  Ciotti believed that he had been lied to, and began an
investigation of Gibson regarding possible dishonesty and
residency rule violations. Sergeant Hartsky of the Office of
Professional Standards (“OPS”) interviewed Gibson, who
                               5


was represented by counsel. After the interview and upon
completion of her investigation, Hartsky charged Gibson
with two counts of dishonesty and one count of failure to
follow the sick leave policy. As described above, WPD
Directive 7.3D, the “Honesty Directive,” states: “Members
and employees are required to be truthful and forthright at
all times. Violation of this regulation will result in
disciplinary action as specified for a class ‘A’ violation, with
the only applicable penalty being dismissal.” Thus, if found
guilty of the dishonesty charges, Gibson faced certain
dismissal.
   An administrative hearing before the Complaint Hearing
Board (“Board”) ensued on December 13, 1999. Captains
Crowley, Maggitti, and Dietz were randomly selected to hear
the case. Prior to the hearing, Hartsky hand-delivered a
trial “packet” to Gibson’s attorney and to each member of
the Board. The packet contained a copy of each item that
OPS was to present at the hearing: a descriptive statement
of each of the three charges against Gibson; Hartsky’s
investigative report; a departmental information report
prepared by Ciotti; transcripts of OPS’s August 24, 1999
and September 8, 1999 interviews with Gibson’s brother
Ed; a transcript of OPS’s August 30, 1999 interview with
Gibson; transcripts of the July 16, 1999 phone calls; the
Illness Leave report filled out by Stevenson recording
Gibson’s 5:36 a.m. sick leave call; and Gibson’s thirteen
page memorandum outlining his factual and legal
contentions.
  The hearing lasted a full day and each side was given the
opportunity to submit evidence and to call witnesses.
During the hearing, which was videotaped, Hartsky played
the audiotape recordings of the four phone calls that had
been recorded: the Data Center’s 12:30 p.m. call to Gibson
with Ciotti on the radio; Ed’s 1:55 p.m. call to Gibson;
Ciotti’s 2:40 p.m. call to Ed; and Ed’s 2:45 p.m. call to
Gibson. At the conclusion of the December 13th hearing,
the Board found Gibson guilty of each of the three charges.
On December 17, 1999, Gibson filed an appeal to the
Appeal Board. The Appeal Board consisted of the Chief of
Police, a representative from the City’s Personnel
Department, and the Vice-President of the Fraternal Order
                                    6


of Police. The Appeal Board convened on February 29, 2000
and unanimously upheld the Board’s decision to discharge
Gibson.
   On August 20, 2000, Gibson filed a wrongful discharge
suit in the District Court against the Mayor and Council of
the City of Wilmington pursuant to 42 U.S.C. § 1983. In his
complaint, Gibson alleged that the WPD had terminated
him pursuant to a vague and overbroad municipal policy
which infringed his First Amendment right to free speech.
Gibson also claimed that the Board’s ex parte proceedings
(i.e. receiving the packet of materials before the hearing)
resulted in a biased Board. Finally, he argued that Marlyn
Dietz (“Dietz”), one of the members of the Board, was
actually biased against him.
   Gibson moved for summary judgment on the issue of
overbreadth and vagueness. The District Court denied the
motion stating that there were “genuine issues of material
fact to be resolved by the fact finder.” Gibson also moved
for summary judgment on the two alleged due process
violations of the Board’s receipt of the packets in advance
of the hearing and of actual bias, or at least the appearance
of impropriety, stemming from Dietz’ sitting on the Board.1
Summary judgment was also denied on both those counts.
The due process claims were ultimately resolved against
Gibson by the jury at trial.
  On September 9, 2002, the morning of a scheduled eight-
day trial, the District Judge invited counsel into chambers

1. Gibson moved for Dietz’ recusal from the Board on the grounds that
Dietz was himself under investigation by the Board for an alleged
violation of the Honesty Directive and might therefore have been under
pressure to rule against Gibson in exchange for leniency in his own case.
Gibson also alleged that Dietz might have had “independent knowledge
of the facts and would not be an independent hearing officer” because he
was in Gibson’s chain of command. By letter dated November 15, 1999,
the Inspector of Internal Operations informed Gibson that while it is true
that OPS had previously conducted an investigation of Dietz as a result
of a complaint raised by one of his subordinates, it had determined that
the complaint was unfounded. Furthermore, the Inspector determined
that Dietz was not in Gibson’s chain of command. Therefore, Gibson’s
request to have Dietz removed from the Board was denied.
                                7


and announced that he was granting summary judgment
sua sponte to Wilmington on the issue of overbreadth:
       The Court: The first thing we will address is the
       preliminary instructions. I very consciously omitted
       from the preliminary instruction any mention of
       overbreadth because I think it has been dealt with,
       admittedly not raised by the defense, but we are not
       going to spend a lot of time on that, Mr. Neuberger. It
       is out of the case.
       Mr. Neuberger: Even though they didn’t move for
       summary judgment, Your Honor?
       The Court: That’s right. I ruled, the ruling is clear in
       the memorandum and order, that is law of the case.
       There is not much more to say about that. . . . As a
       matter of law, I have ruled that the statute is not
       overbroad and that 7.3D, the directive is no longer in
       the case.
   Gibson claims on appeal that this adverse ruling
relegated him “to an entirely new theme of free speech
retaliation, without the underlying and closely related
evidence pertaining to statutory overbreadth.” After an
eight-day trial and nine hours of jury deliberations, the jury
returned a verdict for Wilmington on nine special
interrogatories. Gibson has appealed, alleging reversible
error in the entering of the sua sponte summary judgment
as well as in the reopening of the record during jury
deliberations to admit the requested dictionary definitions
and audio tapes of Gibson’s conversations with the WPD
and his brother. Gibson also appeals the District Court’s
refusal to admit certain character evidence into the record.
The District Court had jurisdiction pursuant to 28 U.S.C.
§§ 1331 and 1343 (a) (3) and (4). We have appellate
jurisdiction pursuant to 28 U.S.C. § 1291.
II.    Propriety of the Grant of Summary Judgment —
       Procedural Issues
  A.    Propriety of the Grant of Summary Judgment in Favor
        of a Non-Movant:
 The District Court granted summary judgment to
Wilmington, a non-moving party. We have previously
                                      8


recognized that “authority has developed to allow a court to
grant summary to a non-moving party.”2 Chambers Dev.
Co., v. Passaic County Utils. Auth., 62 F.3d 582, 584 n.5
(3d Cir. 1995). However, we have also held that summary
judgment will not be granted to a non-moving party without
“first placing the adversarial party on notice that the court
is considering a sua sponte summary judgment motion.” Id.
The threshold question before us is therefore whether the
District Court’s failure to give notice that it was considering
a grant of summary judgment to the non-movant
constitutes a fatal procedural flaw, irrespective of the
merits of the summary judgment grant itself.
  B.    Propriety of the Grant of Sua Sponte Summary
        Judgment
   It has long been established that, under the right
circumstances, district courts are entitled to enter
summary judgment sua sponte. See Celotex Corp. v. Catrett,
477 U.S. 317, 326 (1986) (“Our conclusion is bolstered by
the fact that district courts are widely acknowledged to
possess the power to enter summary judgments sua sponte,
so long as the losing party was on notice that she had to
come forward with all of her evidence.”). In the case at bar,
the District Court entered summary judgment against

2. This authority stems largely from other Courts of Appeals, which have
determined that district courts may grant sua sponte summary
judgments to the non-moving party. See, e.g., Kassbaum v. Steppenwolf
Prods., Inc, 236 F.3d 487, 494 (9th Cir. 2000) (quoting Cool Fuel Inc. v.
Connett, 685 F.2d 309, 311 (9th Cir. 1982)) (“When one party moves for
summary judgment and at a hearing the record reveals no genuine
dispute on a material fact, ‘the overwhelming weight of authority
supports the conclusion that . . . the court may sua sponte grant
summary judgment to the non-moving party.’ ”), cert. denied, 534 U.S.
815 (2001); Ramsey v. Coughlin, 94 F.3d 71, 73 (2d Cir. 1996) (stating
that it is generally established that “ ‘the trial court is not precluded from
entering summary judgment for the non-movant if, in reality, no factual
dispute exists and the non-movant is entitled to summary judgment as
a matter of law.’ ” (quoting 6 James W. Moore, Moore’s Federal Practice
¶ 56.12, at 56-165 (2d ed. 1995)); Yu v. Peterson, 13 F.3d 1413, 1415
(10th Cir. 1993) (quoting Cool Fuel Inc., at 311).
                                    9


Gibson on the issues of vagueness and overbreadth, but
failed to give notice of its intention to do so.3
  From a procedural standpoint, the Federal Rules of Civil
Procedure clearly require that parties be given ten days
notice that a motion for summary judgment is being
considered. See Fed. R. Civ. P. 56 (c). This Court has found
that the notice requirement applies to sua sponte grants of
summary judgment. In Otis Elevator Co. v. George
Washington Hotel Corp. 27 F.3d 903 (3d Cir. 1994), we
held:
     Under our cases, a district court may not grant
     summary judgment sua sponte unless the court gives
     notice and an opportunity to oppose summary
     judgment. See Davis Elliott Intern. v. Pan American
     Container, 705 F.2d 705, 707-08 (3d Cir. 1983)
     (“ ‘because the procedure of Rule 56 requiring an
     opportunity to present pertinent material, which

3. Wilmington argues that Gibson had sufficient notice that the Court
was considering a grant of summary judgment against it based on the
fact that the preliminary jury instructions issued by the District Court
on Friday September 6, 2002 — three days before the trial was slated to
begin — lacked any instructions concerning the issue of overbreadth. In
other words, Wilmington’s argument is that Gibson should have divined
that summary judgment was pending due to what Gibson could simply
have perceived as an accidental omission in the preliminary jury
instructions. We find this logic underwhelming. Indeed, Gibson’s
response to receiving the preliminary instructions was to file a Motion to
Supplement the Preliminary Jury Instructions on September 9, the
morning of the trial. In that motion, Gibson reiterated that the Final Pre-
Trial Order had set forth his claim that Police Manual Directive 7.3D was
unconstitutionally overbroad and that because it had stated that there
was an issue of fact still to be determined — namely whether the
directive had been narrowed only to statements made under oath or in
the discharge of official duties — the question needed to go to a jury.
There is nothing in Gibson’s motion to suggest that he understood the
omission of instructions pertaining to overbreadth to mean that
summary judgment was being contemplated against him. At all events,
even if it would have been logical for Gibson to conclude that summary
judgment was being considered against him based on the omission of
jury instructions concerning the issue of overbreadth, we will assume
that having to make such indirect inferences did not provide Gibson with
adequate notice and that notice was not, in fact, given.
                            10


    presumes notice to the party so that he may take
    advantage of the opportunity, was not followed, the
    entry of judgment must be reversed’ ” (quoting Bryson
    v. Brand Insulations, Inc., 621 F.2d 556, 559 (3d Cir.
    1980)). See also Bradley v. Pittsburgh Bd. of Educ., 913
    F.2d 1064, 1069-70 (3d Cir. 1990) (“[I]n the absence of
    a formal motion for summary judgment, plaintiff was
    under no formal compulsion to marshall [sic] all of the
    evidence in support of his claims”).
Id. at 910.
Otis Elevator thus stands for the proposition that a party
must be given notice when summary judgment is being
contemplated against it so that the evidence necessary to
oppose the motion may be marshaled and presented to the
Court.
   Gibson contends that he was taken completely by
surprise on the morning of the trial when the District Court
Judge announced, in chambers, that he was granting
summary judgment to Wilmington on the issues of
vagueness and overbreadth. While this may very well be
true, it is nevertheless important to note that because the
Court’s pronouncement came on the morning of the trial,
full opportunity for discovery had already obtained. Indeed
Gibson had every opportunity to present his position to the
Court, and it was he who moved for summary judgment on
the issues of vagueness and overbreadth. Wilmington
argues that in moving for summary judgment, Gibson had
clearly marshaled enough evidence to support his case and
was therefore not prejudiced by the lack of notice in the
sua sponte grant of summary judgment. This argument has
merit.
  In the context of sua sponte summary judgment, the First
Circuit has defined “notice” to mean “that the targeted
party ‘had reason to believe the court might reach the issue
and received a fair opportunity to put its best foot
forward.’ ” Leyva v. On the Beach, Inc., 171 F.3d 717, 720
(1st Cir. 1999) (quoting Jardines Bacata, Ltd. v. Diaz-
Marquez, 878 F.2d 1555, 1561 (1st Cir. 1989)). We agree.
Given that it was Gibson who moved for summary
judgment on the issues of vagueness and overbreadth, he
                             11


certainly had the opportunity to put his “best foot forward.”
Similarly, in Ramsey, 94 F.3d at 74, the Court held that:
    Where it appears clearly upon the record that all of the
    evidentiary materials that a party might submit in
    response to a motion for summary judgment are before
    the court, a sua sponte grant of summary judgment
    against that party may be appropriate if those
    materials show that no material dispute of fact exists
    and that the other party is entitled to judgment as a
    matter of law.
Thus, other courts have taken the position that when a
party has had the opportunity to present all the evidence
that would be used to oppose a motion for summary
judgment, the fact that the actual notice was not given
becomes irrelevant if the party was not prejudiced by that
lack of notice.
  Wilmington also contends that because the District Court
granted summary judgment on a question of law, any
prejudice to Gibson was virtually non-existent. Some
Courts of Appeals have embraced that line of reasoning. In
Artistic Entertainment, Inc. v. City of Warner Robins, the
Eleventh Circuit distinguished “sua sponte grants of
summary judgment in cases involving purely legal
questions based on complete evidentiary records,” from
cases “involving factual disputes where the non-moving
party has not been afforded an adequate opportunity to
develop the record.” 331 F.3d 1196, 1201 (11th Cir. 2003)
(per curiam). The Court explained that where a “legal issue
has been fully developed, and the evidentiary record is
complete, summary judgment is entirely appropriate even if
no formal notice has been provided.” Id. at 1202 (citing
Burton v. City of Belle Glade, 178 F.3d 1175, 1204 (11th
Cir. 1999)). Similarly, in Osler Institute Inc. v. Forde, 333
F.3d 832, 836 (7th Cir. 2003), petition for cert. filed 72
U.S.L.W. 3356 (U.S. Nov. 10, 2003) (No. 03-706), the Court
of Appeals held that when a District Court decides to
resolve purely legal issues before trial, a sua sponte grant
of summary judgment may be in order, even if the non-
moving party did not appreciate that notice was being
given.
                                   12


   These courts have fashioned a set of exceptions to the
notice requirement that plainly make sense and we do not
see these holdings as inconsistent with our own
jurisprudence in Otis Elevator. While there are three
different grounds on which we could recognize an exception
to the notice requirement in the case of sua sponte
summary judgment — the presence of a fully developed
record, the lack of prejudice, or a decision based on a
purely legal issue — we need not decide if fewer than all
three would suffice as all three are present in the case at
bar. Hence, we will follow the lead of those Circuits that
have carved out an exception to the notice requirement for
sua sponte grants of summary judgment and hold that the
District Court did not commit procedural error in its grant
of summary judgment to Wilmington on the issues of
vagueness and overbreadth.
  In so doing, however, we add a cautionary note: the sua
sponte grant of summary judgment, without giving notice to
the parties, is not the preferred method by which to dispose
of claims. This is so not only because district courts run
the risk of unduly prejudicing the parties, but also because
such grants of summary judgment can have serious, if
unintended, consequences. As we noted earlier, Gibson
contends that the grant of summary judgment relegated
him “to an entirely new theme of free speech retaliation,
without the underlying and closely related evidence
pertaining to statutory overbreadth.” The fact that Gibson
did not at any point, in chambers or later in the trial, object
to the sua sponte grant of summary judgment based on the
way in which it would affect his trial strategy, suggests that
the trial strategy prejudice claim was fashioned ex post
facto for the purposes of the appeal.4 Nonetheless, we wish

4. Arguably, when the District Court granted summary judgment sua
sponte on the morning of the trial, it simultaneously — if unintentionally
— amended the Final Pretrial Order, dated April 29, 2002, which had
made clear that vagueness and facial overbreadth were issues to be tried
before the jury. Federal Rule of Civil Procedure 16 (e) states:
    Pretrial Orders. After any conference held pursuant to this rule, an
    order shall be entered reciting the action taken. This order shall
    control the subsequent course of action unless modified by a
                                    13


to make clear that it is preferable for the District Court to
give notice to the parties when it is considering a sua
sponte grant of summary judgment because of the potential
consequences such a grant may engender.
III.    Vagueness and Overbreadth
  A.     Vagueness
  Gibson contends that Directive 7.3D is unconstitutionally
vague because the term “forthright” is so vague that a
person of ordinary intelligence is not provided with
reasonable notice as to what conduct or speech is or is not
proscribed by it. This contention is legally untenable. A
statute or regulation must fail for vagueness if it “forbids or
requires the doing of an act in terms so vague that men of
common intelligence must necessarily guess at its
meaning.” Connally v. Gen. Constr. Co., 269 U.S. 385, 391
(1926). However, if the challenged regulation clearly applies
to the challenger’s conduct, he cannot challenge the
regulation for facial vagueness. See Parker v. Levy, 417 U.S.
733, 755-56 (1977). During his deposition, Gibson was
asked why he gave the data center incorrect information as
to his location. He replied: “I know that ah I was supposed
to be at 1208 Pearl Street, and if I wasn’t there, then I

       subsequent order. The order following a final pretrial conference
       shall be modified only to prevent manifest injustice.
   The District Court sua sponte granted summary judgment to
Wilmington on September 9, 2002, the morning of the trial, well after the
Final Pretrial Order had been entered. Not only was there no subsequent
order modifying the Final Pretrial Order, but there was also no “manifest
injustice” that would have required such a modification to occur. Thus,
while the grant of summary judgment was valid on its own merits (as we
explain below in Part III), the ramifications of that grant were potentially
damaging in terms of Gibson’s particular trial strategy. Gibson, however,
did not object — either in chambers that morning or at any point in the
trial — to the grant of summary judgment on the basis that it was
undermining his trial strategy. Because Gibson failed to raise a timely
objection, any review of the District Court’s amendment of the Final
Pretrial Order would be only for plain error, and the rigorous
requirements of the plain error doctrine are clearly not met. See United
States v. Knight, 266 F.3d 203, 206 (3d Cir. 2001).
                             14


knew that I would be facing disciplinary action.” He also
admitted, in terms, that he was not “forthright.” See
discussion infra Part IV. B. To suggest that Gibson did not
understand that he was being untruthful or that he did not
understand that his behavior was not forthright just does
not hold up in light of the facts.
  Furthermore, a vagueness attack requires the plaintiff to
show that he himself was injured by the vague language of
the regulation. See Rode v. Dellaciprete, 845 F.2d 1195,
1200 (3d Cir. 1988). Gibson can make no such showing
here as he was injured as a result of his lies to a
supervising officer, not because of the supposed vagueness
of the regulation.
  B.   Overbreadth
  Gibson contends that because the directive’s plain
language — “[m]embers and employees are required to be
truthful and forthright at all times”— does not limit the
speech or conduct to the discharge of official duties or to
statements made under oath, the directive is overly broad
and the exercise of constitutionally protected speech will be
chilled by the directive’s overbreadth.
   Under First Amendment overbreadth analysis, a court
may invalidate a statute that is substantially overbroad
“even though the conduct of the person making the attack
is clearly unprotected and could be proscribed by a law
drawn with the requisite specificity.” See New York v.
Ferber, 458 U.S. 747, 769 (1982) (citations omitted).
However, “because invalidation for facial overbreadth is
‘strong medicine,’ there are nonetheless limits to its
application.” Aiello v. City of Wilmington, 623 F.2d 845, 852
(3d Cir. 1980). In a facial challenge to the overbreadth of a
law, “a court’s first task is to determine whether the
enactment reaches a substantial amount of constitutionally
protected conduct.” Village of Hoffman Estates v. Flipside,
Hoffman Estates, Inc., 455 U.S. 489, 494 (1982). Although
the Supreme Court has not explicitly listed the factors to be
considered in an overbreadth analysis, those factors have
been identified as “the number of valid applications, the
historic or likely frequency of conceivably impermissible
applications, the nature of the activity or conduct sought to
                              15


be regulated, and the nature of the state interest
underlying the regulation.” Aiello, 623 F.2d at 860 (Sloviter,
J., concurring in part and dissenting in part). We apply
Judge Sloviter’s useful analysis.
   The directive at issue states that “[m]embers must be
truthful and forthright at all times.” Analyzing this directive
in light of the four factors enunciated by this Court, we
conclude that the directive is not substantially overbroad.
The first and second factors we look at together, since they
amount to a comparison. There will clearly be a high
number of instances where there will be valid applications
of this directive. The WPD obviously needs to have truthful
and forthright speech and conduct from its employees, both
in their dealings with the public and within the
organization; a police department could not otherwise fulfill
its mission of assuring public safety.
  Gibson advances several scenarios in which there could
be invalid applications of the directive. While we do not
dispute that some marginal amount of speech or conduct
may potentially be chilled by this directive, we find the
scenarios advanced by Gibson to be more than slightly
unrealistic. For example, Gibson contends that, as written,
the directive would enable Wilmington to fire a police officer
for lying to his son about being sick in order to avoid
having to attend the child’s little league baseball game. It is
in the conceivable realm of possibility that such an event
could occur, but we agree with the Magill Court that:
    Some sensitivity to reality is needed; an invalid
    application that is far-fetched does not deserve as
    much weight as one that is probable. The question is
    a matter of degree; it will never be possible to say that
    a ratio of one invalid to nine valid applications makes
    a law substantially overbroad.
Magill v. Lynch, 560 F.2d 22, 30 (1st Cir. 1977).
   In the case at bar, the number and weight of permissible
applications far outweigh the possible invalid applications,
if not in number, then certainly in kind. This conclusion is
unaffected by Gibson’s enumeration of other hypothetical
                                   16


scenarios for which an untruthful police officer could
potentially be fired, set forth in the margin.5
   Furthermore, the third factor, the nature of the conduct
or activity to be regulated, clearly favors Wilmington and
might even be dispositive of the analysis. The directive
states that members of the WPD must be “truthful and
forthright” at all times. What the directive proscribes would
therefore seem to be speech or conduct that is not truthful
and not forthright. Untruthful speech is not protected by
the First Amendment. See Va. State Bd. of Pharmacy v. Va.
Citizens Consumer Council Inc., 425 U.S. 748, 771 (1976)
(“Untruthful speech, commercial or otherwise, has never
been protected for its own sake.”) Gibson contends that
there are a number of instances in which lies or untruthful
speech have received First Amendment protection. He relies
particularly on Cantwell v. Connecticut, 310 U.S. 296
(1940), where the defendants were convicted for
unauthorized soliciting because they distributed religious
books, pamphlets, and periodicals and convinced passers-
by to listen to records promoting their religious beliefs. In
holding the Connecticut statute unconstitutional, the Court
held that in the realms of political belief and religious faith,
people sometimes resort to “exaggeration, to vilification of

5. Relying on deposition testimony from Wilmington’s Mayor James Sills,
Public Safety Director David Bostrom, and Chief Michael Boykin, who
were asked to opine on an array of imaginary situations, Gibson
contends that the police department itself admits that an officer might
be fired for any of the following reasons: lying about an off–duty,
extramarital affair if it were somehow related to job performance; not
having told his wife that he is supporting a child from a prior
relationship; lying to his wife about being seen with another woman;
making a political speech and intentionally misstating facts about the
opposing candidate; and prevaricating when questioned about his private
life, voting record, union activities or church attendance, whether on- or
off- duty. Gibson did not adduce evidence that anything like this had
ever happened. While these scenarios lend marginal support to Gibson’s
overbreadth claim, they do little to advance the reality of the frequency
or likelihood of the directive’s invalid application. Gibson’s counsel are
experienced constitutional litigators, but these myriad hypothetical
situations, which must be the best they could come up with, just do not
persuade us that the WPD has applied, or will apply, the directive
impermissibly with any degree of frequency.
                             17


men who have been, or are, prominent in church or state,
and even to false statement,” but that “in spite of the
probability of excesses and abuses, these liberties are, in
the long view, essential to enlightened opinion and right
conduct on the part of the citizens of a democracy.” Id. at
310.
  We find Cantwell distinguishable. While it is true that
certain types of false statements seem to be protected, they
are false statements that ultimately promote an
“uninhibited marketplace of ideas.” Virginia v. Hicks, 123 S.
Ct. 2191, 2196 (2003). The bulk of the conduct that this
directive reaches is not of this variety. Rather, it reaches
the petty lies or untruths of everyday life and, of course,
the sort of intentional lies — such as lying to one’s
supervisor about one’s whereabouts when reporting sick —
at issue in this case. In Gertz v. Robert Welch, Inc., the
Court held that:
    [T]here is no constitutional value in false statements of
    fact. Neither the intentional lie nor the careless error
    materially advances society’s interest in “uninhibited,
    robust, and wide-open” debate on public issues. New
    York Times Co. v. Sullivan, 376 U.S. [254,] 270 [(1964)].
    They belong to that category of utterances which “are
    no essential part of any exposition of ideas, and are of
    such slight social value as a step to truth that any
    benefit that may be derived from them is clearly
    outweighed by the social interest in order and
    morality.” Chaplinsky v. New Hampshire, 315 U.S. 568,
    572 (1942).
418 U.S. 323, 340 (1974).
  Although there would certainly be some social value
obtained by not regulating the speech of police officers, that
value is clearly outweighed by the interest the WPD has in
maintaining the efficient operation of its police force and
the public trust.
   The fourth factor is the nature of the state interest
underlying the regulation. The WPD has advanced a
legitimate and important state interest in support of its
honesty directive, namely the preservation of the public’s
trust as well as the unimpeded operation of the police
                                    18


department’s work where an officer’s credibility on the
witness stand can play a crucial role. Gibson contends that
the same goals could be achieved with a more narrowly
tailored provision and cites examples of other police
departments that have tailored their honesty directives to
apply only to situations where the officers are carrying out
official functions.6 We do not dispute that the Wilmington
directive could certainly be more narrowly drawn and would
benefit from being rewritten. However, we do not believe
that the directive reaches a substantial amount of
constitutionally protected conduct.
  In summary, as we have already stated, substantial
overbreadth is determined first by comparing the number of
valid applications to the likelihood and frequency of
impermissible applications. Having considered the types of
impermissible applications advanced in this case, we have
concluded that the number and type of valid applications
outweigh not only the likelihood, but more importantly the
nature of potential invalid applications. We have also
concluded that lies and untruthful statements are protected
under First Amendment jurisprudence only in those rare
instances where they contribute to the “uninhibited
marketplace of ideas.” Hicks, 123 S. Ct. at 2196. Such is
not the nature of the substantial bulk of lies regulated here.
Finally, the WPD’s decision to implement an honesty
directive to promote and preserve the public trust supports
a legitimate and important state interest. We will therefore

6. See, e.g., Directive 9.5 of the City of Newark, Delaware’s Police
Department which reads:
    9.5 Truthfulness
      i.     Each employee is required to be truthful at all times during
             any Judicial or administrative proceedings or when giving a
             deposition. (Group V).
      ii.    Each employee is required to be truthful at all times when
             speaking with fellow employees and responding to questions
             from the general public. (Group III).
      iii.   Deception is acceptable only when it may be required to
             conduct a proper investigation or while working in an
             undercover assignment.
                               19


affirm the District Court’s determination that the directive
was not substantially overbroad as a matter of law.
IV.    Reopening the record
   A court’s decision to reopen or supplement the record
once deliberations have begun is reviewable only for abuse
of discretion. See Natural Res. Def. Council, Inc. v. Texaco
Refining & Mktg. Inc., 2 F.3d 493, 504 (3d Cir. 1993). Great
flexibility is accorded the District Court in its determination
to supplement the record, though it must avoid
perpetrating any type of injustice in so doing. Cf. Rivera-
Flores v. P. R. Tel. Co., 64 F.3d 742, 746 (1st Cir. 1995)
(“While the particular criteria that guide a trial court’s
decision to reopen are necessarily flexible and case-specific,
it is generally understood that a trial court abuses its
discretion if its [action] works an ‘injustice’ in the particular
circumstances.”). In determining whether an “injustice” will
occur, the district court must consider several factors,
including the burden that will be placed on the parties and
their witnesses, the undue prejudice that may result from
admitting or not admitting the new evidence, and
considerations of judicial economy. See Rochez Bros., Inc. v.
Rhoades, 527 F.2d 891, 894 n.6 (3d Cir. 1978).
  A.    The three audiotapes
   During the course of the trial, the jury watched extensive
excerpts from videotapes made of Gibson’s administrative
hearing. In viewing those videotapes, the jury heard the
audio recordings of the three telephone conversations
between Gibson and his brother, as well as the call made
to Gibson from the WPD with Sgt. Ciotti on the radio. The
videotapes, the transcript of the videotapes, and the
transcript of the recorded telephone conversations were all
admitted into evidence. During closing arguments, Gibson
argued (apparently for the first time), that if the jury
watched the videotape portion of the phone conversations,
“they would conclude that (like Gibson) they could not
understand what Ed Gibson was saying over the phone
line. No person could have picked up what Ed was saying
to Chris at the end of his conversation, let alone some
double entendre that showed he joined in his brother’s lie.
Thus, Gibson could not have been a liar because he did not
understand what was being said.” (Brief, p.47).
                             20


   Shortly after deliberations began, a request was sent to
the Court. “We need a dictionary, TV and VCR and Trial
Board tape, recording of Data Center tapes made July 16,
1999.” The nature of the request showed that the jury
wanted not just to watch the videotape (as they were urged
to do by Gibson), but also wanted to listen to the actual
audio recordings of the phone conversations that had been
played at the administrative hearing. Those audio tapes
had never been offered or received into evidence at trial
(though the transcripts of the phone conversations had
been). Gibson argues that by allowing the jury to listen to
those audio tapes, the Court “allowed the defense to
circumvent plaintiff ’s counsel’s final argument which was
based on the record as presented, and not on a new audio
tape subject to different interpretations as to its content,
scope and the impact of noise bleeding into it.” (emphasis
in original). We are unpersuaded.
  In his closing argument at trial, Gibson argued that the
quality of the sound on the phone lines was so poor as to
render Gibson unable to understand what was being said
to him during the course of the conversations. Yet Gibson
now argues that listening to the actual recordings of the
phone conversations as opposed to a videotape of a
playback of the recording of the phone conversations would
unduly prejudice him. By his own logic, the concern here
should not be whether the sound quality on the video was
poor, but whether the sound quality on the phone line was
poor.
  When Gibson’s counsel objected to the introduction of
the audio tapes, the District Court suggested that the audio
tapes be listened to in chambers. After listening to the
tapes, the Court stated:
    My recollection of attempting to discern what was on
    the videotape was that it was pretty difficult at the time
    these calls were played. If this is, in fact, the tape that
    the trial board officers heard, Mr. Neuberger, don’t you
    think that the jury should have the benefit of
    understanding, as you like to say, the context, that is,
    providing for the jury an understanding of what the
    evidence was that the board acted upon? They didn’t
    act upon, apparently — the tape that we heard, as I
                                   21


       have just indicated, was unintelligible. This is not. It
       seems to me this is a significant issue in the case, that
       you have made it one.
  Over counsel’s objections, the District Court proceeded to
admit audio tapes that had already been heard by the jury
via the video tapes, and which Gibson had alleged were
unintelligible. The allegation that in so doing the District
Court “took sides in the trial of the case and bailed out the
defendants in their chosen trial strategy” is unconvincing
given that it was Gibson who brought the intelligibility of
the phone conversations into question. The District Court’s
decision to allow the jury to listen to the audio tapes was
not an abuse of discretion.7
  B.    The two dictionary definitions
   The Supreme Court has stated that “when a jury makes
explicit its difficulties a trial judge should clear them away
with concrete accuracy.” Bollenbach v. United States, 326
U.S. 607, 612-13 (1946). Here, the jury asked the Court for
a dictionary. The District Court was disinclined to provide
the jurors with a dictionary, stating to counsel in
chambers: “As we all know, we don’t permit jurors to
embark upon their own research, their own quest for
information.” To prevent any dictionary misuse, the District
Court asked the jury to specify the words for which it
needed definitions: “The Court and the parties have
received your request for a dictionary. In the space provided
below, please list the word or words or term or terms you
wish to define. It is not necessary to provide an explanation
of why you wish to define those words or terms.” The jury
submitted its request for definitions for the words
“forthright” and “motivating.” With the input of counsel, the
District Court decided to provide photocopied definitions for

7. Gibson’s counsel makes the further argument that he had objected to
the authenticity of the tapes in chambers but that he was forced to
withdraw his objection because he did not want to cause further
prejudice to his client by having the jury see him question the
authenticity of the tapes. However, there is nothing in the record of this
conversation in chambers that suggests that he was “forced” to withdraw
his objection, nor that authentication could not have taken place without
the jury present.
                                    22


the two words out of the abridged version of Webster’s
Ninth New Collegiate Dictionary.8
   Gibson argues that he was unduly prejudiced by the
jury’s receipt of a dictionary definition of the word
“forthright,” because the meaning of the word forthright
was a key issue at trial. Part of Gibson’s argument at trial
was that a reasonable person would have no
understanding, and therefore no notice, as to the meaning
of the word “forthright.” Gibson further argues in the
appellate brief that the very fact that the jury asked for a
definition of the word demonstrates that the word was
confusing and ambiguous enough to prevent average people
from understanding it.
   This contention has no merit. During the course of the
police investigation and of the trial, Gibson himself
demonstrated a perfectly good understanding of the word
“forthright.” In response to a question during the police
investigation, Gibson used the word “forthright” in
contradistinction to the word “truthful” without being
prompted to do so:
     Police Investigator: . . . are you being totally truthful
     when you were talking to the Data Center?
     Gibson: I’m being ah I’m being ah truthful probably but
     not forthright.
On cross-examination at the trial, Gibson was asked to
what he meant by the word forthright, as he had used it in
his answer to the police investigator.
     Counsel: What do you mean by the word forthright?
     Gibson: What do I mean?

8. The relevant definitions read as follows:
    1. forthright adv. 1 a: directly forth or ahead b: without hesitation:
    frankly 2 archaic: at once.
    2. forthright adj. 1 archaic: proceeding straight on 2: free from
    ambiguity or evasiveness: going straight to the point.
    motivate vt -vated; -vating (1885): to provide with a motive:   IMPEL.

Webster’s Ninth New Collegiate Dictionary 486, 774 (1986).
                                    23


     Counsel: Yes.
     Gibson: Sir, you’re asking me for my definition?
     Counsel: I am.
     Gibson: To be. . . . (Pause). I don’t know. To be candid,
     frank.
Gibson’s subsequent contention that he did not know what
forthright meant and that providing the jury with a
definition would prejudice the deliberations against him is
simply belied by the record.
  In our view, the District Court did not abuse its
discretion when it provided the jury with the definitions of
the words “motivating” and “forthright” at the jury’s request.9
In fact, it declined to send in a dictionary and inquired
further as to the jury’s exact need so that it could
specifically tailor the supplemental instructions. Such
judicial tailoring of supplemental instructions was deemed
the preferred procedure in United States v. Birges, 723 F.2d
666, (1984):
     Questions or disputes as to the meaning of terms
     which arise during jury deliberations should be settled
     by the court after consultation with counsel, in
     supplemental instructions. Such guidance will avoid
     the danger that jurors will use the dictionary to
     construct their own definitions of legal terms which do
     not accurately or fairly reflect applicable law.

9. With respect to providing the jury with a dictionary definition of
“motivating,” Gibson does not even allude to any prejudice arising from
the provision of this word, as his entire argument focuses on the
prejudice that allegedly accrued from providing a definition of the word
“forthright.” In all likelihood, the jury asked for a definition of the word
“motivating” to help it understand the meaning of a “substantial and
motivating factor,” one of the elements in the free speech retaliation
charge. Providing a plain English language definition of a legal term is
not problematic if the supplemental definition does not alter the
essential meaning of the word. See United States v. He, 245 F.3d 954
(7th Cir. 2001). Here, there is no contention that the supplemental
definition altered the meaning of the word “motivating,” and the District
Court clearly did not abuse its discretion in providing a dictionary
definition for the word.
                             24


Id. at 670-71.
  Here, the District Court took seriously its responsibility
to be as precise as possible and provided the jury with
exactly what was needed, no more and no less. The Court
did not abuse its discretion in providing the two requested
dictionary definitions.
V.   Federal Rule of Evidence 405 (b)
   Gibson contends that Wilmington’s entire defense
strategy was to attack Gibson as being a liar and, by
implication, a bad cop. Gibson argues that the District
Court therefore abused its discretion when it refused to
allow Gibson to introduce seven documents that would
have helped to rebut those charges and would have shown
Gibson’s propensity for truthfulness. Wilmington, on the
other hand, argues that it never put Gibson’s character into
question but rather sought only to prove that he was
dishonest in his dealings with his supervisor on July 16,
1999, the day he called in sick.
    A District Court’s evidentiary rulings are reviewed for
abuse of discretion. See Johnson v. Elk Lake Sch. Dist., 283
F.3d 138, 145 n.2 (3d Cir. 2002) (citing Abrams v. Lightolier
Inc., 50 F.3d 1204, 1213 (3d Cir. 1995)). The definition of
relevant evidence is very broad. Under Fed. R. Evid. 401,
“ ‘[r]elevant evidence’ means evidence having any tendency
to make the existence of any fact that is of consequence to
the determination of the action more probable or less
probable than it would be without the evidence.” We have
held that Rule 401 “does not raise a high standard.” Hurley
v. Atl. City Police Dept., 174 F.3d 95, 109-110 (3d Cir.
1999). We have also held that “evidence is irrelevant only
when it has no tendency to prove [a consequential fact],”
and that while Rule 401 gives “judges great freedom to
admit evidence, [it] diminishes substantially their authority
to exclude evidence as irrelevant.” Spain v. Gallegos, 26
F.3d 439, 452 (3d Cir. 1994) (citations omitted).
  Among the documents that Gibson wanted to have
admitted were Gibson’s last two employee performance
reviews, which according to Gibson “reflect acceptable
performance and give no indication that he demonstrates
any trait consistent with the claim that he was a liar,
                             25


dishonest and not forthright,” and which supposedly
contained “positive evaluations of characteristics of pride,
deportment, judgment and cooperation which make any
trait of dishonesty less probable.” Gibson also wanted to
introduce letters from the Chief of Police stating that
Gibson displayed initiative, dedication, teamwork, and a
“can do” attitude as well as letters from the Mayor of
Wilmington stating that Gibson displayed dedication,
commitment, hard work, courage and good work.
   Gibson argues that since character was made a central
issue in this case, these documents should have been
admitted pursuant to Fed. R. Evid. 405 (b) because they
tended to show that Gibson was not a dishonest or
untruthful cop. Fed. R. Evid. 405 (b) states: “In cases in
which character or a trait of character of a person is an
essential element of a charge, claim, or defense, proof may
also be made of specific instances of that person’s
conduct.” The question for us is to determine whether, in
fact, Wilmington made Gibson’s character an “essential
element” of the “charge, claim, or defense.”
   Character evidence does not constitute an “essential
element of a claim or charge unless it alters the rights and
liabilities of the parties under the substantive law.” Schater
v. Time, Inc., 142 F.3d 1361, 1371 (11th Cir. 1998); see
also United States v. Keiser, 57 F.3d 847, 856 & n.20 (9th
Cir. 1995); Perrin v. Anderson, 784 F.2d 1040, 1045 (10th
Cir. 1986) (citing McCormick on Evidence § 187 at 551 (3d
ed. 1984)). The advisory committee’s notes to the Federal
Rules of Evidence provide two examples in which character
evidence constitutes such an essential element: “[1] the
chastity of a victim under a statute specifying her chastity
as an element of the crime of seduction, or [2] the
competency of the driver in an action for negligently
entrusting a motor vehicle to an incompetent driver.” Fed.
R. Evid. 404 (a) adv. comm. note (explaining that Rule 404
does not exclude such evidence because it is not offered to
prove conduct consistent with character).
  Gibson contended, both in open court and in chambers,
that Wilmington was putting Gibson’s character at issue in
the case by trying to make him out to be a “bad” or “lying”
cop. In one particularly illuminating discussion in
                                26


chambers, Gibson’s counsel stated that: “there is a false
impression I think for the jury that this police officer was
a bad police officer.” The Court replied: “No, I think that is
the theory you have advanced. I don’t think there has been
a false impression created within the context of the
evidence in my view.” (emphasis added). The Court further
stated:
      [T]here is considerable evidence on the record from
      sources both documentary and live testimony that
      Christopher Gibson was a very effective police officer in
      his role as a community police officer, as a drug
      elimination officer, when he was working for the WHA
      and when he was in the weed-and-seeder. I think there
      is ample and plenty of evidence in the record to
      support that conclusion, contrary to what you are
      advancing, Mr. Haverly.
   It is obvious from this exchange that the District Court
did not believe that Gibson’s character was being put into
issue, a conclusion with which we agree. Wilmington
advanced evidence of the allegedly untruthful statements
that Gibson made on July 16, 1999, the day he called in
sick. There were no overarching allegations that he was
otherwise a dishonest or lying cop. The District Court did
not abuse its discretion by not allowing rebuttal evidence in
this circumstance since he correctly concluded that
character had not been made an essential element of the
defense.
VI.   Conclusion
  For the foregoing reasons, the judgment of the District
Court will be affirmed.

A True Copy:
        Teste:

                     Clerk of the United States Court of Appeals
                                 for the Third Circuit
