                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-1994


JEFFREY GRAY, Individually, as the next best friend of and
Personal Representative of the Estate of Jarrel Gray; TANYA
THOMAS, Individually, as the next best friend of and
Personal Representative of the Estate of Jarrel Gray,

                Plaintiffs - Appellants,

           v.

BOARD OF COUNTY COMMISSIONERS OF FREDERICK COUNTY;       CHARLES
JENKINS, Sheriff, Frederick County Sheriff’s Office,     in both
his official and individual capacities; RUDOLPH          TORRES,
Deputy Sheriff, Frederick County Sheriff’s Office,       in both
his official and individual capacities; FREDERICK        COUNTY,
MARYLAND,

                Defendants - Appellees.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     William D. Quarles, Jr., District
Judge. (1:08-cv-01380-WDQ)


Argued:   October 29, 2013                 Decided:   January 8, 2014


Before KEENAN, WYNN, and THACKER, Circuit Judges.


Affirmed by unpublished opinion.        Judge Keenan wrote         the
opinion, in which Judge Wynn and Judge Thacker joined.


ARGUED: Gregory L. Lattimer, LAW OFFICES OF GREGORY L. LATTIMER,
Washington, D.C., for Appellants.   Sandra Diana Lee, KARPINSKI,
COLARESI & KARP, PA, Baltimore, Maryland, for Appellees.      ON
BRIEF: Ted J. Williams, Washington, D.C., for Appellants.
Daniel Karp, KARPINSKI, COLARESI & KARP, Baltimore, Maryland,
for Appellees.


Unpublished opinions are not binding precedent in this circuit.




                                2
BARBARA MILANO KEENAN, Circuit Judge:

     Jeffrey        Gray       and     Tanya       Thomas           (collectively,         the

plaintiffs), who are the parents of the decedent Jarrel Gray

(Gray)     and    the     representatives          of        his    estate,      filed    the

complaint    that       is     the   subject      of     this      appeal.         In    their

complaint, the plaintiffs primarily alleged that the actions of

Deputy Sheriff Rudolph Torres (Torres) leading to Gray’s death

violated    his    constitutional          rights.           The    plaintiffs      asserted

that Torres’ use of a taser twice during his encounter with

Gray, including once after Gray had fallen to the ground, was

unreasonable under the circumstances and constituted excessive

force.      The case was tried before a jury, which returned a

verdict in Torres’ favor.

     On    appeal,       the    plaintiffs       argue       that:    (1)    the    district

court erred in instructing the jury; (2) the jury’s verdict was

against the weight of the evidence; and (3) the verdict form was

internally       inconsistent        and   suggested         that    the    jury    was    not

unanimous    in    its       decision.      Upon       our    review,       we   affirm    the

district court’s judgment.



                                            I.

     Although many substantive details of the events at issue

were disputed at trial, we set forth the facts of this case in



                                            3
the   light     most   favorable        to    Torres,      the    prevailing       party         at

trial.     See King v. McMillan, 594 F.3d 301, 306 (4th Cir. 2010).

The evidence showed that about 5:00 a.m. on November 18, 2007,

several      residents     in     the        area    of    Gresham       Court     East          in

Frederick,      Maryland,      made     emergency         telephone      calls     reporting

that people were fighting in the street.                         The police dispatcher

informed      officers      by     radio       that       there       were      “disorderly”

individuals at that location.                  Torres, a deputy sheriff in the

Frederick       County     Sheriff’s          Office       who        responded        to        the

dispatcher’s call, was not accompanied by other officers. 1

      Upon    arriving     at     the    scene,       Torres      observed       two    males,

later     identified      as     Jerame       Duvall      and    Gray,        engaged       in    a

fistfight.       Torres also observed a third male later identified

as Charles Kahiga, who was standing near the fighting men, and a

female later identified as Sara Ismach, who was sitting inside a

vehicle    parked      nearby.         Gray    and     Duvall     stopped       fighting         as

Torres parked and stepped out of his patrol car.

      Duvall     began     walking        toward       Ismach’s         car    when     Torres

ordered    him    to   stop      and    to    “[g]et      on    the     ground.”        Duvall

refused    to    comply    with        Torres’       orders,      and    repeatedly          used

      1
       Although he was alone at the time of the dispatcher’s
call, Torres decided to respond to the call because the two
officers who originally were dispatched were about fifteen
minutes away from the fight scene, while Torres was relatively
close to that location.



                                               4
profane language in response to Torres’ commands.                          Duvall began

walking toward Torres, while acting in an “enraged” manner.                               In

response        to    Duvall’s   advances,        Torres     removed      his   conducted

energy device, commonly known as a “taser,” from its holster,

pointed the taser at Duvall, and again ordered Duvall to “[g]et

down       on   the   ground.”       Duvall       complied    with     this     order     and

remained in a position on the ground where Torres could see

Duvall’s        hands,    although    Duvall       continued       yelling      at   Torres

during this time. 2

       Torres turned his attention to Gray, who also used profane

language        while    refusing    Torres’       orders     to    lie    down      on   the

ground.         Gray initially was not facing Torres and had placed his

hands inside his pants near the front of the waistband.                              Torres

did not know whether Gray possessed a weapon, but later noticed

that there was a “bulge” near where Gray’s hands were located

inside his pants.

       Torres instructed Gray to “[g]ive me your hands.                              Let me

see your hands.           Let me see your hands.”              When Gray refused to

comply with this order, Torres warned Gray repeatedly, “Let me


       2
       At some point after Torres’ arrival on the scene, but
before Duvall complied with Torres’ orders, Kahiga complied
without incident with Torres’ commands to “show his hands and
get on the ground.”    During this same period, Ismach complied
with Torres’ commands to stay inside the vehicle with her hands
placed on the steering wheel.



                                              5
see your hands, or I’m going to tase you.”                        As Gray turned to

face Torres, Gray’s hands still were placed inside his pants

near his waistband, and he again refused Torres’ command to show

his hands.

     At that time, Torres deployed his taser.                     Its probes struck

Gray,   delivering       an   electrical       current    of   50,000    volts    that

lasted five seconds.           Gray fell forward to the ground, with his

hands lodged beneath his body near his groin area.                          At that

time, in accord with department policy, Torres used his police

radio   to    request    the    presence       of   a   supervisory     officer   and

emergency medical services (EMS) personnel.

     Although another police officer may have arrived on the

scene shortly after Torres first used his taser on Gray, Torres

thought      that   he   remained    the       sole     officer    there.    Torres

observed Gray breathing and heard him coughing after he fell to

the ground.         Because Torres had observed many individuals fall

to the ground “face first” and still remain conscious, Torres

did not think that Gray was unconscious or in medical distress.

     Torres considered Gray as a continuing threat because of

his earlier defiance of Torres’ orders, and because Gray’s hands

remained underneath his body.          Torres continued to order Gray to

show his hands, warning on two occasions that Torres would again

discharge the taser if Gray did not comply.                       When Gray’s hands

remained under his body, Torres activated his taser for a second

                                           6
time, delivering another electrical current of 50,000 volts that

lasted for five seconds.

        After the second deployment of his taser, which occurred

about       20    seconds     following      the     initial      deployment,           Torres

observed for the first time that additional officers had arrived

on    the    scene.        The   officers     placed      handcuffs        on    Duvall    and

Kahiga, and later assisted Torres in pulling Gray’s hands out

from under his body and in placing handcuffs on him. 3                                 The EMS

personnel who had arrived on the scene observed that Gray was

unresponsive.         Gray was taken by ambulance to a local hospital

where he was pronounced dead about two hours later. 4

       The plaintiffs initiated a lawsuit against Torres in May

2008.        In their Second Amended Complaint (the complaint), the

plaintiffs         asserted      a   claim   under       42   U.S.C.   §    1983.         They

alleged that Torres deprived Gray of his constitutional rights

based on an unreasonable seizure of his person in violation of

the    Fourth       and   Fifth      Amendments,     and      contended         that    Torres

employed         excessive    force    during      the    encounter    (the       excessive

force claim).             The plaintiffs also alleged several state law

        3
            The officers did not find a weapon on Gray’s person.
        4
        The medical examiner listed Gray’s cause of death as
“sudden    death   associated   with   restraint   and alcohol
intoxication,” and could not conclude with certainty whether a
“medical    causal   relationship”   existed   between Torres’
deployments of the taser and Gray’s death.



                                             7
claims in the complaint, including wrongful death, assault and

battery, certain claims based on the Maryland Survival Act, and

violations of Articles 24 and 26 of the Maryland Declaration of

Rights. 5

     The case proceeded to a jury trial, during which the jury

heard conflicting testimony concerning the events at issue.               In

several respects, Torres’ testimony differed from the accounts

offered by Ismach and Duvall.                The jury also heard testimony

from Robert F. Thomas, Jr., who qualified as an expert witness

on the subject of law enforcement practices and procedures.

     Thomas testified that Torres’ deployment of his taser on

both occasions was reasonable and consistent with established

law enforcement practices.          Thomas stated that Torres was faced

with a “dynamic,” rapidly evolving situation in which he was

outnumbered by several individuals, and in which two of those

persons “were profanely challenging [Torres’] authority and his

issuance of commands.”           With regard to the initial use of the

taser,      Thomas   concluded    that   Torres’   conduct   was   reasonable


     5
       The plaintiffs also named as defendants the Board of
County Commissioners of Frederick County (the Board) and
Frederick County Sheriff Charles Jenkins.    The district court
entered an order bifurcating the claims raised against Torres
from those raised against the Board and Jenkins, and later
granted summary judgment in favor of the Board and Jenkins. The
district court also denied Torres’ motion for summary judgment
on the excessive force claim.



                                         8
because       Gray      had        been     observed        fighting,           had     made

confrontational        statements         toward    Torres,       and   repeatedly       had

refused Torres’ commands to lie down on the ground and to show

his hands.

      Thomas further testified that Torres’ second deployment of

the   taser    also    was    reasonable         and     consistent      with    good    law

enforcement practices.              Thomas based his opinion on the fact

that Gray had fallen to the ground with his hands under his

torso in the vicinity of his waistband.                        Thomas explained that

the waistband area of a suspect’s clothing is known to be a

“frequent hiding place or carrying place for weapons of various

kinds.”     Accordingly, Thomas opined that it was reasonable for

Torres to deploy his taser on Gray for a second time when Gray

did not comply with Torres’ commands to show his hands after

falling to the ground. 6

      The     case    was    submitted      to     the    jury,    which   delivered       a

verdict in favor of Torres.                In responding to questions posed on

the   verdict    form,       the    jury    found      that:    (1)     Torres    did    not

violate Gray’s right to be free from the use of excessive force;


      6
       The plaintiffs presented a witness, Andrew J. Scott, III,
who also qualified as an expert in the field of police
procedures and practices.   In contrast to Thomas’ conclusions,
Scott testified that, in his view, Torres’ deployment of his
taser on both occasions constituted an inappropriate, excessive,
and objectively unreasonable use of force.



                                             9
(2) Torres assaulted or battered Gray under the common law, but

was shielded from liability because he acted in self defense or

in    the   defense      of   others; 7    and     (3)    the    plaintiffs       were   not

entitled to damages for any of the additional state law claims.

       The plaintiffs filed a motion for a new trial under Rule 59

of the Federal Rules of Civil Procedure, contending that the

verdict      was   against        the     weight     of    the     evidence       and    was

irreconcilably        inconsistent.          The     district      court    denied       the

motion, and the plaintiffs timely filed a notice of appeal.



                                            II.

                                            A.

       The plaintiffs first argue that the district court abused

its    discretion        in   instructing     the    jury,       because    the    court’s

instruction did not allow the jury to consider their excessive

force claim in an accurate and fair manner.                       The plaintiffs also

assert      that   the    court    erred    in     rejecting      certain     additional

instructions they requested on the subject of excessive force.

We disagree with the plaintiffs’ arguments.



       7
       The jury also found that Torres’ assault or battery on
Gray was not a proximate cause of Gray’s death.    The jury did
not reach a verdict with respect to whether the additional state
law privilege of statutory immunity shielded Torres from
liability on the state law claims.



                                            10
       As a general matter, we review for abuse of discretion a

district      court’s    decision            whether       to    give      particular           jury

instructions.          Noel   v.    Artson,         641    F.3d       580,    585    (4th       Cir.

2011).         A   party      challenging            a     court’s         choice        of     jury

instructions       “faces     a    heavy      burden,”          due   to     the    significant

discretion that courts have in determining which instructions

are proper and necessary.               Id. at 586.             A district court abuses

its discretion in refusing to give a jury instruction only when

the proposed instruction: (1) is a correct statement of the law;

(2) is not “substantially covered” by the court’s charge to the

jury; and (3) relates to an issue so important that failure to

give    the    requested      instruction            seriously         impairs      a     party’s

ability to make its case.               Id. at 586.

       In the present case, the plaintiffs did not object to the

district      court’s    failure        to    give       their    proposed         instructions

relating      to   excessive        force,       nor       did    they       object       to     the

excessive      force    instruction           that       was    provided      to     the       jury.

Likewise, the plaintiffs did not raise in their motion for a new

trial any argument concerning the jury instructions.                                      Because

the    plaintiffs      failed      to    make       an    objection        “on     the    record,

stating distinctly the matter objected to and the grounds for

the objection,” we review for plain error the district court’s

decision with respect to the jury instructions.                              Fed. R. Civ. P.



                                               11
51(c)(1), (d)(2); see Gregg v. Ham, 678 F.3d 333, 338 (4th Cir.

2012).

     Under the plain error standard of review, the plaintiffs

are not entitled to a new trial unless they can establish that

(1) there was an instructional error; (2) that error is plain;

(3) that error affected the plaintiffs’ substantial rights; and

(4) that error seriously affected the fairness, integrity or

public reputation of the court’s proceedings.                  Gregg, 678 F.3d

at 338 (citation omitted).           Upon our review of the record and

the parties’ arguments, we conclude that the plaintiffs cannot

demonstrate such plain error.

     We first discuss general principles of law relating to the

subject matter of the jury instructions at issue.                    The Fourth

Amendment   guarantees       persons    the    “right     to    be   free   from

unreasonable searches and seizures, which encompasses the right

to be free of arrests, investigatory stops, or other seizures

effectuated by excessive force.”              Schultz v. Braga, 455 F.3d

470, 476 (4th Cir. 2006); see Graham v. Connor, 490 U.S. 386,

395 (1989).     The issue whether an officer used excessive force

to effect an arrest or seizure is analyzed under an “objective

reasonableness” standard that takes into account, among other

factors, whether “the suspect poses an immediate threat to the

safety of the officers or others.”               See Meyers v. Baltimore

Cnty.,   Md.,   713   F.3d    723,   732-33    (4th     Cir.   2013)   (quoting

                                       12
Graham,          490    U.S.       at     396,     399).             Additionally,         “[t]he

‘reasonableness’ of a particular use of force must be judged

from       the    perspective       of    a   reasonable        officer       on    the    scene,

rather than with the 20/20 vision of hindsight.” 8                                 Graham, 490

U.S. at 396.

       An officer’s decisions that were mistaken, but nevertheless

were       reasonable,        do    not    “transgress          constitutional           bounds.”

Henry v. Purnell, 652 F.3d 524, 532 (4th Cir. 2011) (en banc).

“All       actions,      however,         whether       mistaken       or    otherwise,         are

subject to an objective test.”                    Id.

       This       objective        reasonableness         inquiry          does    not    involve

consideration of facts or information unavailable to the officer

at the time of his actions.                      Sevigny v. Dicksey, 846 F.2d 953,

957    n.5       (4th   Cir.   1988).         Nevertheless,           an    officer       in   such

circumstances            is    charged        with       having        knowledge          of    all

information            “reasonably        discoverable          by    an     officer       acting

reasonably under the circumstances.”                      Id.

       The excessive force instruction (Instruction 23) given by

the district court provided as follows:

       8
       The issue whether an officer’s use of force was excessive
within the meaning of Articles 24 and 26 of the Maryland
Declaration of Rights is analyzed under the same standard
applicable to a claim of excessive force in violation of the
Fourth Amendment. See Henry v. Purnell, 652 F.3d 524, 536 (4th
Cir. 2011) (en banc) (citing Randall v. Peaco, 927 A.2d 83, 89
(Md. Ct. Spec. App. 2007)).



                                                 13
      The Fourth Amendment to the United States Constitution
      protects persons from being subjected to excessive
      force by law enforcement officials. . . .       A law
      enforcement official may only employ the amount of
      force reasonably necessary under the circumstances. .
      . .

      To determine whether the defendant’s acts caused
      [Gray] to suffer the loss of a federal right, you must
      determine whether the amount of force used to effect
      the stop was that which a reasonable officer would
      have employed in effecting the stop under similar
      circumstances.   In making this determination, you may
      take into account such factors as the severity of the
      crime being investigated, whether [Gray] posed an
      immediate threat to the safety of the defendant or
      others, and whether [Gray] actively resisted the stop
      or attempted to evade the stop by flight. . . .     If
      you find that the amount of force used was greater
      than a reasonable law enforcement officer would have
      employed, the plaintiff[s] will have established the
      claim of loss of a federal right.

      The    plaintiffs   assert   that   Instruction   23   was   deficient

because it failed to inform the jury that the plaintiffs’ claims

related to each of Torres’ separate deployments of the taser on

Gray. 9     The plaintiffs further contend that Instruction 23 was

deficient because it failed to apprise the jury that (1) “force

justified at the beginning of an encounter is not justified even

seconds later if the justification for the initial force has

been eliminated,” Waterman v. Batton, 393 F.3d 471, 481 (4th

Cir. 2005); and (2) a suspect’s noncompliance, without more, is



      9
       The jury instructions proposed by the plaintiffs, however,
did not specifically draw the jury’s attention to the fact that
two separate taser deployments were at issue.



                                     14
not a basis for the use of force, Florida v. Bostick, 501 U.S.

429, 437 (1991).         We disagree with the plaintiffs’ arguments.

     We rejected similar arguments in Noel, a case in which the

plaintiff argued that the district court erred when it failed to

give a jury instruction addressing the fact that the excessive

force claim related to three separate gunshots fired by a police

officer.         641    F.3d     at    587.       We    held     that       the     court’s

instructions,      which       essentially      directed    the       jury    to        decide

whether “the officers act[ed] reasonably or [not],” provided the

jury “the appropriate legal standard and left counsel more than

enough room to argue the facts in light of that standard.”                              Id.

     In the present case, the jury instruction concerning the

excessive       force     claim       similarly        charged        the     jury        with

determining       whether       Torres’       actions     were        reasonable,          and

directed    the    jury     to    consider      whether     a    reasonable             police

officer would have used a similar amount of force under the

circumstances presented.              This instruction properly provided the

jury with the governing legal standard, leaving latitude to the

parties    to    argue    whether       each    deployment       of    the    taser        was

reasonable in light of that standard.

     We also held in Noel that the district court did not abuse

its discretion in declining to give a jury instruction based on

Waterman,       observing      that     appellate       opinions       “are       not     jury

instructions, nor are they meant to be.                   Rather, they articulate

                                           15
general principles of law that decide cases.”                    641 F.3d at 588.

Additionally, we explained that although district courts may use

appellate opinions as a guide in formulating jury instructions,

courts are not required to do so because appellate opinions are

not   “intended         to     preempt    a    district    judge’s    discretion   to

formulate a suitable charge for a specific trial.”                    Id.

      These principles discussed in Noel are equally applicable

here and guide our conclusion that the district court did not

abuse its discretion in omitting from the jury instructions the

specific        points       of   law    discussed    in   Waterman    and   Bostick.

Gray’s counsel was free to include in his argument the relevant

principles from those two decisions, and frame his view of the

evidence based on those principles.

      We further conclude that the two jury instructions proposed

by the plaintiffs, relating to the criteria for determining the

reasonableness of an officer’s use of force and the objective

nature     of     the    “reasonableness”          inquiry,   were    “substantially

covered” by Instruction 23. 10                See Noel, 641 F.3d at 586-87.        The


      10
        An additional instruction proposed by the plaintiffs
provided as follows: “It is excessive force for a police officer
to strike a person who is not resisting, who is not attempting
to flee and who does not pose an immediate threat to the safety
of the officer or others.”    However, this proposed instruction
was an incorrect statement of law.    The instruction improperly
asked the jury to decide as a factual matter whether the suspect
did not resist the officer’s commands and was not an immediate
threat to the officer, instead of considering whether “a
(Continued)
                                              16
first of these proposed instructions would have informed the

jury that the “reasonableness” inquiry must be judged from the

perspective of a reasonable officer on the scene taking into

account    the    totality     of   the      circumstances,         including:     the

severity of the crime being investigated; whether the suspect

constituted      an    immediate    threat     to     the   officer     or   others;

whether    the    suspect     was   actively        resisting       arrest   or    was

attempting to flee; and the time available to the officer to

assess the need for the use of force.                All but the last of these

points    were    explicitly    included      in    Instruction       23,    and   the

plaintiffs’ counsel was free to argue the time issue to the jury

in   contending        that   Torres’      actions      were    not     reasonable.

Accordingly,      we    conclude    that     Instruction       23    “substantially

covered” the points included in the first of the plaintiffs’

proposed instructions at issue in this appeal.                  See id. at 586.

     The second of plaintiffs’ proposed instructions would have

again informed the jury that the “reasonableness” inquiry is an

objective test that must be judged from the perspective of an

objectively      reasonable    officer.        This    instruction      would      have

further informed the jury that the officer’s intentions, whether




reasonable officer on the scene” would have concluded that the
suspect was resisting or posed an immediate threat. See Graham,
490 U.S. at 395-96.



                                        17
good or “evil,” are not relevant to the reasonableness inquiry.

We observe that Instruction 23 charged the jury with determining

“whether the amount of force used to effect the stop was that

which a reasonable officer would have employed,” which, in our

view, sufficiently informed the jury to base its decision on

what an objectively reasonable officer would have done under the

circumstances confronted by Torres.             Accordingly, we conclude

that Instruction 23 “substantially covered” the points included

in the second of the plaintiffs’ proposed instructions that are

at issue here. 11   See id.    Therefore, we hold that the plaintiffs

cannot    demonstrate   that   the   district   court   plainly   erred   in

instructing the jury.



                                     B.

     The plaintiffs argue that the district court abused its

discretion in denying their motion for a new trial, in which

they primarily argued that the jury’s verdict was against the

clear weight of the evidence.         We disagree with the plaintiffs’

argument.


     11
        To the extent that Instruction 23 did not specifically
inform the jury not to consider whether Torres had good or
“evil” intentions, we conclude that such an omission did not
relate to an issue so important that “failure to give the
requested instruction seriously impair[ed] [the plaintiffs’]
ability to make [their] case.” See Noel, 614 F.3d at 586.



                                     18
     A district court may award a new trial under Rule 59 if the

verdict “(1) is against the clear weight of the evidence; (2) is

based     on    evidence    that     is   false;      or   (3)     will     result    in   a

miscarriage of justice.”              Dennis v. Columbia Colleton Med. Ctr.,

Inc., 290 F.3d 639, 650 (4th Cir. 2002) (citation omitted).                                We

review a court’s denial of a motion for a new trial for a “clear

abuse     of    discretion     and    will    not    reverse       absent     exceptional

circumstances.”         Id. (citation omitted).

     The       jury’s    finding     rejecting      the    plaintiffs’        claim   that

Torres used excessive force is not against the clear weight of

the evidence.          The jury was entitled to accept Torres’ testimony

that before he first deployed the taser, Gray had placed his

hands in his waistband, Torres had observed a “bulge” near where

Gray’s hands were lodged inside his pants, and Gray repeatedly

had refused Torres’ orders for Gray to show his hands.                          The jury

also was entitled to find credible and objectively reasonable

Torres’ assessments that he was the sole officer on the scene, 12

that Gray was not unconscious or in medical distress after the

initial use of the taser, and that Gray continued to pose a

threat     on     the    ground       because       his    hands       were   positioned

underneath       his    body   near    his    groin       area   and    he    refused      to

     12
       We observe that the plaintiffs do not argue that Torres’
perception that he was the sole officer on the scene before he
used the taser was objectively unreasonable.



                                             19
display them after repeated orders to do so.                           See Graham, 490

U.S. at 396-97 (explaining that the reasonableness inquiry must

be viewed “from the perspective of a reasonable officer on the

scene,”      taking        into     account          “facts      and      circumstances

confronting” the officer).

      In   determining        the    objective        reasonableness       of    Torres’

actions,     the    jury    also     was      entitled      to   credit    the    expert

testimony      of    Thomas       regarding        established      law    enforcement

practices.      In particular, the jury could have accepted Thomas’

testimony that because Gray positioned his hands in a place that

was a “frequent hiding place or carrying place” for weapons, it

was   reasonable      for    Torres      to    perceive     that    Gray    remained    a

threat after he fell to the ground.                    Ultimately, the jury could

have agreed with Thomas’ conclusions, or could have reached the

same conclusions on its own, that both deployments of the taser

by Torres were objectively reasonable.

      The plaintiffs argue, nonetheless, that the jury’s verdict

must be vacated because the second use of the taser occurred

after   Gray    had    fallen       to   the       ground   “face      first”    and   was

motionless.        The plaintiffs contend that under those facts, as a

matter of law, Gray could not have posed an imminent threat to

Torres.

      This argument lacks merit, however, because it improperly

casts the facts in the light most favorable to the plaintiffs,

                                              20
and requires us to disregard the fundamental principle that the

“‘reasonableness’ of a particular use of force must be judged

from the perspective of a reasonable officer on the scene” and

“in   light     of    the     facts     and    circumstances     confronting”       the

officer.      Graham, 490 U.S. at 396-97.                Thus, the issue whether a

reasonable officer presented with like facts and circumstances

could      conclude     that     Gray    posed      an    imminent    safety     threat

remained a factual issue for the jury to decide.

      Our conclusion is not altered by the plaintiffs’ reliance

on our decision in Meyers.                 There, we held that an award of

summary      judgment    in    favor     of    an   officer   based    on   qualified

immunity constituted error with respect to the officer’s use of

a taser seven times on a disarmed suspect who had fallen to the

ground. 13    713 F.3d at 733-35.

      We viewed the facts in the light most favorable to the

plaintiff because the plaintiff’s case had been terminated by

the summary judgment award.                   Id. at 730.      In contrast to the

present case, in which Torres was required to deal with three

unrestrained         suspects,     the    facts      in    Meyers     involved    four

officers attempting to subdue a single individual.                      Id. at 728.


      13
       In Meyers, we upheld the grant of summary judgment in the
officer’s favor with respect to claims relating to the officer’s
three deployments of his taser on Meyers while he was standing
and advancing toward the officer. 713 F.3d at 732-33.



                                              21
Moreover,     the        uses    of   the   taser    that    we    held   to   constitute

excessive force for purposes of summary judgment occurred after

the suspect had been disarmed and while three officers sat on

his back.          Id.     Thus, there was no doubt that the suspect was

secured and did not pose a threat to the officers after he fell

to the ground.             Here, however, Torres was unsure whether Gray

was armed, and Gray had not been secured after falling to the

ground.

     We    therefore            conclude    that     the    jury’s   verdict        was   not

contrary      to    the     clear     weight    of    the    evidence.         We   further

conclude that the verdict did not constitute a miscarriage of

justice. 14        See Dennis, 290 F.3d at 650.                   Accordingly, we hold

that the district court did not abuse its discretion in denying

the plaintiffs’ Rule 59 motion with respect to his challenges to

the sufficiency of the evidence.



                                               C.

     The plaintiffs also challenge on two additional grounds the

district court’s denial of their motion for a new trial.                                  The


     14
       We observe that the plaintiffs’ argument that the verdict
constitutes a miscarriage of justice is based on their
contention that the verdict is contrary to the clear weight of
the evidence.    Additionally, the plaintiffs do not argue that
the verdict is based on evidence that is “false.”    See Dennis,
290 F.3d at 650.



                                               22
plaintiffs contend that the court was required to grant their

motion    on    the     grounds       that        (1)     the     jury     verdict       was

irreconcilably inconsistent; and (2) the verdict form suggested

a lack of unanimity in the jury’s decision.                         We disagree with

these arguments.

     Although     the    jury       found    that       Torres     had     committed     an

assault or battery against Gray, and also found that Torres did

not violate Gray’s federal or state constitutional rights to be

free from the use of excessive force, these findings were based

on distinct legal concepts.              Under Maryland law, an assault or

battery occurs when an individual attempts or consummates an

offensive contact against another without the consent of that

person.   See Nelson v. Carroll, 735 A.2d 1096, 1099 (Md. 1999);

Continental    Cas.     Co.    Mirabile,         449    A.2d    1176,    1183    (Md.    Ct.

Spec. App. 1982).         The issue whether Torres’ use of the taser

constituted     excessive       force,       however,          entailed    a    different

inquiry    requiring          the    jury        to      consider        the    objective

reasonableness     of    Torres’       conduct,         including        whether   Torres

reasonably     concluded      that    Gray       posed    an    immediate       threat    to

Torres’ safety. 15      See Meyers, 713 F.3d at 732-33.                     Accordingly,

     15
        We also observe that the jury concluded that Torres was
not liable for the common law tort of assault and battery, even
though his actions constituted an assault or battery, because
the jury found that Torres was acting in defense of himself or
others and used only “such force as was reasonably necessary.”


                                            23
there   is    no        inconsistency      between         the    jury’s   finding        that

Torres’ use of the taser was an offensive contact that occurred

without Gray’s consent, but that such contact did not deprive

Gray of his constitutional right to be free from the use of

excessive force.           Cf. French v. Hines, 957 A.2d 1000, 1037 (Md.

Ct.   Spec.    App.       2008)    (“officers        are    privileged        to   commit    a

battery pursuant to a lawful arrest, subject to the excessive

force limitation”) (citation and emphasis omitted).

      We also reject the plaintiffs’ argument that the jury’s

notation     of     “consensus”     next      to    each     of    the   answers     on    the

verdict      form       suggested      that        the   jury’s      verdict       was    not

unanimous.          After    the    jury      foreperson          announced    the    jury’s

findings with respect to each question on the verdict form, the

district court polled the members of the jury and each juror

responded individually that the verdict announced was his or her

verdict.      Accordingly, we conclude that the district court did

not   abuse       its     discretion    in     rejecting          this   ground      of    the

plaintiffs’ motion for a new trial.



                                           III.

      For these reasons, we affirm the district court’s judgment.



                                                                                   AFFIRMED



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