                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-11-1996

Mosley v. Wilson
Precedential or Non-Precedential:

Docket 95-1989




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       UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT



                            No. 95-1989


                          JAMES MOSLEY,
                                          Appellant
                                  v.

            JOSEPH WILSON; LEWIS WILSON; PETER MANGO



        On Appeal from the United States District Court
            for the Eastern District of Pennsylvania
                     (D.C. No. 91-cv-00712)



                      Argued July 15, 1996

                Before: SLOVITER, Chief Judge,
                 COWEN and ROTH, Circuit Judges


              (Opinion filed December 11, l996)



Joseph P. Green, Jr. (Argued)
Duffy & Green
West Chester, PA 19380

         Attorney for Appellant

L. Rostaing Tharaud (Argued)
Marshall, Dennehey, Warner,
 Coleman & Goggin
Philadelphia, PA l9l03

         Attorney for Appellee

                         OPINION OF THE COURT


SLOVITER, Chief Judge.


         A federal jury was presented with four claims filed by
James Mosley against Joseph Wilson, a police officer of East
Fallowfield Township, Chester County, Pennsylvania: two claims
for violations of Mosley's civil rights filed pursuant to 42
U.S.C. § 1983, one of which was for arrest without probable cause
and the other for use of excessive force, and two pendent state
law claims, of which one was for malicious prosecution and the
other for intentional infliction of emotional distress. The jury
returned a verdict for plaintiff Mosley on the malicious
prosecution claim, and for defendant Wilson on the other three
claims.
         The district court granted Wilson's post-trial motion
and entered judgment as a matter of law for him on the malicious
prosecution claim. Mosley appeals.
                               I.
                   FACTS AND PROCEDURAL HISTORY
         This action arose out of events that were the subject
of a criminal prosecution brought in the Court of Common Pleas of
Chester County, Pennsylvania. Because Mosley's civil case was
tried by a jury and the district court had no occasion to make
detailed factual findings, we rely largely on the depiction of
the relevant background events as set forth in Commonwealth v.
Mosley, 535 Pa. 549, 637 A.2d 246 (1993), the Pennsylvania
Supreme Court's opinion on Mosley's appeal in the criminal case.
         The initial events that transpired on the evening of
January 31, 1989 are essentially undisputed. About midnight,
Mosley, described by the Pennsylvania Supreme Court as "somewhat
disconcerted," arrived at the police station in East Fallowfield
Township and met with defendant Officer Joseph Wilson, who was on
duty that night. Id. at 247. Mosley told Wilson that he had had
an argument with Sharon Smith, and that he had come to report his
version of the events before he was arrested. While Mosley was
in the police station, the police dispatcher informed Wilson that
Smith had called in a complaint against Mosley. Officer Wilson
then drove Mosley back to his residence in an attempt to mediate
the dispute. Id.
         After arriving at Mosley's home, Wilson went inside to
speak to Smith, leaving Mosley in his patrol car. He returned a
few minutes later and told Mosley that he was under arrest for
assault and rape. (We note that Mosley was never charged with
any crime in connection with the alleged assault and rape of
Smith.) Wilson then locked Mosley in the police car and made a
radio call for backup assistance from a neighboring municipality,
and was shortly joined by his brother, Sergeant Lewis Wilson.
The two officers went inside the house to continue interviewing
Smith, and left Mosley locked in the back of the patrol car. Id.
         From this point, the accounts of the evening's events
diverge. The police officers maintain that while they were
questioning Smith, Mosley began to bang violently and kick the
inside of the police car, that Officer Wilson (the defendant in
this case) attempted to handcuff him, that Mosley lunged at
Officer Wilson and attempted to grab his gun while threatening to
kill him, that they struggled and Sergeant Wilson ran outside and
pulled Mosley off his brother, and that after several minutes of
"wrestling," they handcuffed Mosley and took him to the hospital.
Id.
         Mosley's vastly different version of the story is that
after he was locked in the car for 30 minutes while the officers
spoke with Sharon Smith, he began to bang on the inside of the
car to get the officers' attention and gain his release. Officer
Wilson came outside, opened the car door and assaulted him, and
then pulled him out of the car and continued the assault, aided
by Sergeant Wilson, until they beat him into submission before
finally taking him to the hospital. Id.
         Mosley was prosecuted and tried before a state court
jury on charges arising out of the events, which convicted him on
charges of terroristic threats, simple assault, recklessly
endangering another person, and resisting arrest, in violation of
18 Pa.C.S.A. § 2706, § 2701(a)(1), § 2705, and § 5104,
respectively. Mosley was acquitted of aggravated assault. In
addition, the trial court found Mosley guilty of the summary
offenses of criminal mischief and disorderly conduct, 18
Pa.C.S.A. § 3304(a)(2) and § 5503(a)(1).
         On appeal, the Pennsylvania Supreme Court overturned
Mosley's conviction because a key prosecution witness, Sergeant
Wilson, had an ex parte conversation outside the courtroom with a
juror who eventually became the jury foreperson. During the
conversation, the juror told Sergeant Wilson that he was from
West Caln and was a friend of the Chief of Police there, and
Sergeant Wilson "complimented the juror on the quality of his
hometown police department." Id. at 249. The Pennsylvania
Supreme Court held that the trial judge erred in failing to
question the juror about any possible taint that might have
resulted from this conversation and therefore the judge was
unable to determine whether the encounter constituted harmless
error. Accordingly, the Court vacated Mosley's conviction and
granted him a new trial. Id. at 250. Instead of retrying the
case, however, the prosecutor granted Mosley nolle prosequi and
dropped all criminal charges against him.
         Before the resolution of his appeal of conviction,
Mosley filed this civil suit against Officer Wilson, Sergeant
Wilson, and police chief Peter Mango, alleging that the police
committed battery, assault, false imprisonment, malicious
prosecution, and malicious use and abuse of process. Mosley
eventually dismissed the claims against Sergeant Lewis Wilson and
Peter Mango, and trial proceeded before a jury on all claims
against Officer Joseph Wilson in the Eastern District of
Pennsylvania, bifurcated as to liability and damages. The first
trial ended in a hung jury. At the second trial, Mosley's claims
were reduced to two federal civil rights claims filed pursuant to
42 U.S.C. § 1983 alleging arrest without probable cause and use
of excessive force, and two pendent state law tort actions of
malicious prosecution and intentional infliction of emotional
distress. The jury returned a verdict in favor of Mosley on the
state claim of malicious prosecution, but found for Wilson on all
other counts.
         Following the verdict, Wilson, arguing that the verdict
on malicious prosecution was inconsistent with the verdict in his
favor on the civil rights claims, moved to "mold the verdict into
a consistent verdict." App. at 102. The district court granted
the motion, issuing judgment as a matter of law pursuant to
Fed. R. Civ. P. 50 for Wilson on the malicious prosecution claim
on the ground that the verdicts on the different counts were
"blatantly inconsistent." Id. The district court reasoned that
because the jury must have found that probable cause existed to
find for Wilson on the unlawful arrest claim, and because
probable cause for arrest is a "necessary element" in the
malicious prosecution claim, the verdicts were legally
inconsistent. The district court reasoned: "If probable cause
existed for one claim, it had to exist for the other claim." Id.
Consequently, the court "molded" the verdict in favor of Wilson
on all counts.
         Mosley's appeal brief states that he seeks
reinstatement of the malicious prosecution verdict, and if he
could present his damage claim to the same jury he would waive
retrial on the civil rights claims. He states that if that jury
is not available, he seeks remand for a new trial on both his
malicious prosecution claim and on his civil rights claims,
because the latter were marred by a legally erroneous
instruction. Obviously, the same jury is not available, and we
confine ourselves to Mosley's request for a new trial on the
civil rights claims as well as the malicious prosecution claim.
                               II.
                            DISCUSSION
                                A.
         We consider first Mosley's contention that the district
court erred in applying Rule 50(b) setting aside the jury's
verdict for Mosley on the malicious prosecution claim based on
the court's view that that verdict was inconsistent with the
jury's verdict for Wilson on the civil rights claims. Our review
of the court's grant of judgment as a matter of law is plenary.
Duquesne Light Co. v. Westinghouse Electric Corp., 66 F.3d 604,
613 (3d. Cir. 1995).
         Under Rule 50(a), the court may grant judgment as a
matter of law only if "a party has been fully heard on an issue
and there is no legally sufficient evidentiary basis for a
reasonable jury to find for that party on that issue." Fed. R.
Civ. P. 50(a). In granting judgment as a matter of law following
a jury verdict, the district court must view the evidence in the
light most favorable to the non-moving party, and determine
whether the record contains the "'minimum quantum of evidence
from which a jury might reasonably afford relief.'" Parkway
Garage, Inc. v. City of Philadelphia, 5 F.3d 685, 691 (3d Cir.
1993) (quoting Keith v. Truck Stops Corp., 909 F.2d 743, 745 (3d
Cir. 1990)).
         Here, the district court did not conclude that there
was insufficient evidence to support the jury's finding of
malicious prosecution. Instead, the court concluded only that
the jury's verdict for Mosley on the malicious prosecution claim
was inconsistent with its verdict for Wilson on the civil rights
claim. The court explained as follows:

        In order for the jury to have found in favor of the
        defendant on plaintiff's civil rights claim for arrest
         without probable cause, the jury would have had to
         conclude that the defendant did in fact have probable
         cause to arrest the plaintiff. However, in order to
         have found in favor of the plaintiff on the malicious
         prosecution claim, the jury would have had to conclude
         that the defendant lacked probable cause to arrest
         plaintiff since lack of probable cause is a necessary
         element of a claim for malicious prosecution in
         Pennsylvania. . . . Thus, the jury's verdict as to
         those two claims was blatantly inconsistent.

App. at 102 (emphasis in original).
         Wilson cites no authority that authorizes a district
court to grant judgment as a matter of law based on the jury's
inconsistency on different claims. The closest analog in the
Federal Rules of Civil Procedure appears in Rule 49(b) which
considers the appropriate course when a jury returns inconsistent
answers to interrogatories or when a general verdict is
accompanied by one or more inconsistent interrogatory answers.
See Fed. R. Civ. P. 49(b). In the latter circumstance the
district court must either return the jury for further
consideration of the verdicts or order a new trial. As we
explained in Repola v. Morbark Industries, Inc., 934 F.2d 483,
495 (3d Cir. 1991), it would be "[n]either fair [n]or appropriate
simply to excise the jury's . . . finding and to enter judgment
for [defendant]" based on the jury's verdict on a different claim
that rendered the verdicts inconsistent. Without the court
finding that the evidence was insufficient, the decision would be
arbitrary and would trench on the Seventh Amendment.
         Indeed, the inappropriateness of entering judgment as a
matter of law solely on the basis of inconsistent verdicts is
evident in the procedural requirements for such a judgment
established by the Federal Rules of Civil Procedure. A motion
for judgment as a matter of law rendered after trial must be made
on grounds that were previously asserted in a motion for directed
verdict prior to submission of the case to the jury. See Fed. R.
Civ. P. 50(b) advisory committee's note; see also Simmons v. City
of Philadelphia, 947 F.2d 1042, 1077 (3d Cir.), cert. denied, 503
U.S. 985 (1991); Abraham v. Pekarski, 728 F.2d 167, 172 (3d
Cir.), cert. denied, 467 U.S. 1242 (1984). Obviously the
inconsistency of the verdicts could not have been raised in a
motion for directed verdict prior to jury deliberations.
         Rule 49(b) does not address the issue before us here -
that of inconsistent general verdicts. We have found little
precedent on this issue but there is a comprehensive discussion
of inconsistent general verdicts in the opinion of Justice
Stevens in Los Angeles v. Heller, 475 U.S. 796, 804-06 (1986)
(Stevens, J. dissenting), where the underlying fact pattern bore
some similarity to that before us. Although the Supreme Court
did not address the issue before us in its per curiam decision,
Justice Stevens' dissent did discuss at some length whether
inconsistent general verdicts in a civil case should be allowed
to stand. Justice Stevens noted that when faced with apparently
inconsistent verdicts in a civil case, the district court can
take several approaches. He noted that "in certain
circumstances, a court retains the authority, even in a civil
case, to allow an apparently inconsistent verdict to stand."
Heller, 475 U.S. at 805; see United States Football League v.
National Football League, 644 F. Supp. 1040, 1045 (S.D.N.Y. 1986)
(stating that "inconsistent verdicts on separate claims in a
civil action are fully permissible."), aff'd, 842 F.2d 1335 (2d
Cir. 1988); see also Globus v. Law Research Service, Inc., 418
F.2d 1276, 1290 n.17 (2d Cir. 1969) (stating that "consistent
jury verdicts are not, in themselves, necessary attributes of a
valid judgment."), cert. denied, 397 U.S. 913 (1970).
         Second, Justice Stevens noted the court's "duty to
attempt to read the verdict in a manner that will resolve
inconsistencies." Heller, 475 U.S. at 806. In this court, that
requirement is illustrated by our decision in Loughman v. Consol-
Pennsylvania Coal Co., 6 F.3d 88, 108 (3d Cir. 1993), holding
that a jury's finding that 100% of the harm was due to one
defendant's actions was not inconsistent with the jury's finding
of liability for all of the defendants.
         Third, Justice Stevens referred to the trial judge's
responsibility "upon receiving an apparently inconsistent verdict
. . . not to retain half of the verdict, but to resubmit the
question to the jury." Heller, 407 U.S. at 806. That duty is
comparable to the requirement imposed by Rule 49(b) when the
answers to special interrogatories are inconsistent. See note 1,
supra.
         Finally, Justice Stevens observed that "if verdicts are
genuinely inconsistent and if the evidence might support either
of the 'inconsistent' verdicts, the appropriate remedy is
ordinarily, not simply to accept one verdict and dismiss the
other, but to order an entirely new trial." Heller, 407 U.S. at
806. He then cited this court's opinion in Malley-Duff &
Associates, Inc. v. Crown Life Ins. Co., 734 F.2d 133, 145 (3d
Cir.), cert. denied, 469 U.S. 1072 (1984), which, although it
dealt with inconsistent special verdicts under Rule 49(a) rather
than inconsistent general verdicts, is illustrative of the
procedure to be used in the latter situation.
         It is of considerable significance that none of the
approaches referred to by Justice Stevens supports the action of
the district court in this case, i.e., directing a judgment
notwithstanding the jury's verdict on one claim on the sole
ground that it was inconsistent with the jury's verdict on
another claim. It follows that the district court erred as a
matter of law.
                                B.
         Wilson argues that we should sustain the district
court's order on the ground that it "correctly amended" the
jury's verdict for Mosley on his malicious prosecution claim
because the jury's verdict was precluded as a matter of law. He
argues that despite the later reversal of Mosley's conviction by
the Pennsylvania Supreme Court, Mosley's conviction by the jury
for terroristic threats, assault, reckless endangerment and
resisting arrest, and the court's conviction of him on his
summary offenses arising out of the same incident, was
dispositive of the probable cause issue in his civil action.
Therefore, he claims, the issue of probable cause should never
have gone to the jury.
         Issue preclusion, or collateral estoppel, bars
relitigation of issues adjudicated in a prior action. Swineford
v. Snyder County Pa., 15 F.3d 1258, 1266 (3d Cir. 1994). Under
this principle a conviction ordinarily will be a bar to a
subsequent state court suit for damages, such as one for
malicious prosecution. See W. Page Keeton, D. Dobbs, R. Keeton,
& D. Owen, Prosser and Keeton on The Law of Torts § 119, at 874
(5th ed. 1984). The underlying rationale given is that because a
plaintiff in a malicious prosecution action must show the
favorable termination of the underlying proceeding, a civil
plaintiff whose conviction has not been reversed is unable to
prove one of the essential elements of the tort - lack of
probable cause for the proceeding. Id.
           A different situation is presented when a conviction
has later been overturned. The courts appear to be divided on
the preclusive effect that the initial conviction should have on
the issues of probable cause for the arrest and/or prosecution in
a subsequent action for malicious prosecution brought against the
police or municipal authorities. On one hand, the Restatement
(Second) of Torts, views a conviction, even if later overturned,
as "conclusively establish[ing] the existence of probable cause,
unless the conviction was obtained by fraud, perjury or other
corrupt means." Restatement (Second) of Torts § 667(1) (1977).
The rationale given is that a guilty verdict establishes "that
the person who initiated the proceedings had reasonable grounds
for so doing." Id. at § 667(1) cmt. b.
         On the other hand, there is "a considerable minority
view which regards the conviction as creating only a presumption,
which may be rebutted by any competent evidence showing that
probable cause for the prosecution did not in fact exist."
Prosser and Keeton on The Law of Torts § 119, at 882.
         The division among the states was noted in the separate
opinions in Heck v. Humphrey, 114 S. Ct. 2364 (1994), where a
closely divided Supreme Court considered the related issue of the
effect of a conviction on the plaintiff's right to recover
damages in a civil rights action brought under 42 U.S.C. § 1983.
Justice Scalia authored the majority opinion, which held that "in
order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence invalid,
a § 1983 plaintiff must prove that the conviction or sentence has
been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court's
issuance of a writ of habeas corpus." Id. at 2372 (emphasis
added). Justice Souter, writing separately for the four Justices
who concurred only in the judgment, agreed with the majority
insofar as its rule applied to prison inmates seeking § 1983
damages in federal court, but objected to application of the
majority's rule to those civil plaintiffs "who cannot first
obtain a favorable state ruling," or who can no longer bring a
habeas action because they are no longer in custody. Id. at 2379
(Souter, J. concurring in the judgment).
          Heck did not involve a conviction that had been
reversed on direct appeal, as Mosley's was here, but in the
course of the two opinions and their footnotes the Justices
alluded to the effect of a conviction that was later reversed on
a common law malicious prosecution claim. Justice Souter cited
authority that at common law a prior conviction, although
reversed, "dissolved [a] claim for malicious prosecution because
the conviction was regarded as irrebuttable evidence that the
prosecution never lacked probable cause." Id. at 2377. He
acknowledged that this rule has been relaxed in more recent
times. Id. at 2377 n.3.
         Justice Scalia responded that even early in the common
law it was recognized that there must be exceptions (such as in
cases involving fraud, perjury, or mistake of law) to "the
general rule that a conviction defeated the malicious prosecution
plaintiff's allegation (essential to his cause of action) that
the prior proceeding was without probable cause." Id. at 2372
n.4. He further noted that the Court had recognized in Crescent
City Live Stock Co. v. Butchers' Union Slaughter-House Co., 120
U.S. 141, 149 (1887)), that "'[h]ow much weight as proof of
probable cause shall be attributed to the judgment of the court
in the original action, when subsequently reversed for error, may
admit of some question.'" Id.
         We must look to the current state of Pennsylvania law
because malicious prosecution is a common law claim, and we are
bound to give a state court judgment the same preclusive effect
as would the courts of that state. See 28 U.S.C. § 1738 (1988);
Swineford, 15 F.3d at 1266. If the highest court has not spoken
to the issue, we can garner assistance from the decisions of the
state's intermediate appellate courts in predicting how the
state's highest court would rule. Gares v. Willingboro Township,
90 F.3d 720, 725 (3d Cir. 1996); McKenna v. Pacific Rail Serv.,
32 F.3d 820, 825 (3d Cir. 1994).
         The Pennsylvania Supreme Court has apparently not
determined what preclusive effect should be given to a conviction
that was later overturned in a subsequent malicious prosecution
suit. There are contrary signals from the intermediate
Pennsylvania courts. Compare Cosmas v. Bloomingdales Bros.,
Inc., 442 Pa. Super. 476, 482, 660 A.2d 83, 86 (1995) (stating
that a conviction even if overturned is conclusive proof of the
existence of probable cause unless the party can show undue
influences at work in the conviction proceedings) with Cap v. K-
Mart Discount Stores, Inc., 357 Pa. Super. 9, 12, 515 A.2d 52, 53
(1986) (holding that conviction by a justice of the peace
reversed on appeal does not preclude action for malicious
prosecution even without any showing of undue influence in the
process). Fortunately, we need not predict in this case
precisely how the state supreme court would resolve the issue
because under either analysis, Mosley's jury conviction, which
was later overturned, could not preclude litigation of the issue
of probable cause in this civil action.
         In this case, we will assume arguendo that Wilson
correctly states that under Pennsylvania law "the overturning of
a conviction does not negate the finding of probable cause by the
court absent 'fraud or other undue influences.'" Appellee's brief
at 11 (quoting Cosmas, 660 A.2d at 86). We therefore proceed to
examine the Pennsylvania Supreme Court's opinion reversing
Mosley's conviction to ascertain whether the basis for its action
undermines the effect of the original conviction on the
establishment of probable cause.
         Examination of the opinion shows that the Court
reversed Mosley's conviction because of its concern that Mosley's
trial was tainted by a lack of objectivity on the part of the
jury. The Court "decline[d] to adopt a per se rule which would
require the disqualification of a juror anytime there is ex parte
contact between that juror and a witness," but instead held that
when such a "communication or contact has occurred between a
juror and a witness, prejudice may be inferred at the discretion
of the trial judge." Mosley, 637 A.2d at 249. To rebut the
inference of prejudice, "the communication must be explained or
shown to be harmless." Id.
         The Court then reviewed the contact in this case:
              In the instant case, an important Commonwealth
         witness engaged in an ex parte conversation with a
         juror who later served as foreman of the jury. The
         witness, Sergeant Lewis Wilson, was not only one of the
         arresting officers, but was also directly involved in
         the altercation which led to the charges upon which
         Appellant was convicted. Since there were no
         corroborating eye witnesses, the case turned on a
         credibility determination between Appellant and the two
         police officers.

              The conversation between Sergeant Wilson and the
         juror amounted to more than a brief, incidental
         contact. The two engaged in a dialogue in which the
         juror conveyed the fact that he was from West Caln and
         was a friend of the Chief of Police in that
         municipality. Sergeant Wilson then complimented the
         juror on the quality of his hometown police department.

Id. at 249.   The Court further stated:

              Although we diverge from the "rebuttable
         presumption of prejudice" rule used by the [Supreme
         Court of Utah] in Pike, we agree with the view that a
         juror may be subject to a subconscious influence or
         bias as a result of an unexpected cordial encounter
         with a witness. This subconscious influence may have
         the improper effect of enhancing the credibility of the
         witness in the eyes of that juror.

              In the instant case, the trial judge never
         questioned the juror about any possible taint which may
         have resulted from his conversation with Sergeant
         Lewis. Instead, defense counsel was given the
         opportunity to call witnesses in support of his Motion
         to Disqualify the Juror. This placed defense counsel
         in the difficult position of deciding whether to avoid
         questioning the juror or run the risk of antagonizing a
         juror who might remain to decide his client's fate.
         The juror was never called as a witness by either side
         at the voir dire hearing on the Motion. Without the
         juror's testimony, the trial judge was not in a
         position to determine that the encounter between
         Sergeant Wilson and the juror amounted to harmless
         error. Consequently, the trial judge's denial of
         Appellant's Motion to Disqualify the Juror was an abuse
         of discretion.

Id. at 250.   The Court concluded:

              We, therefore, cannot say with any degree of
         certainty that the contact did not establish a rapport,
         albeit unconscious, between Sergeant Wilson and the
         jury foreman which in some way influenced the outcome
         of the trial.

Id. (emphasis added).
         The Pennsylvania Supreme Court's lack of confidence in
the reliability of the factfindings seems to us to be precisely
the sort of "undue influence" referred to in Cosmas and
encompassed by the Restatement (Second) of Torts § 667(1). Even
courts that today adhere to the view that a conviction
notwithstanding reversal is proof of probable cause leave some
opening for these situations where the reversal impugns the
reliability or integrity of the factfinding in the initial
conviction. That was certainly the case in the Pennsylvania
Supreme Court's reversal of the conviction in Mosley. We believe
that the Pennsylvania courts, even if the position in Cosmos is
adopted by its Supreme Court, would find that the circumstances
set forth in the Mosley opinion are the kind of "undue influence"
that negates the finding of probable cause that stems from the
initial conviction. For this reason, we hold that Mosley's
conviction in the Court of Common Pleas on charges of terroristic
threats, simple assault, recklessly endangering another person
and resisting arrest are not conclusive of whether there was
probable cause to prosecute him for these offenses. Accordingly,
once his conviction was overturned, he was entitled to litigate
the issue in his civil case and the district court erred in
declining to give Mosley the benefit of the jury's judgment on
his claim of malicious prosecution.
         We will therefore reverse the trial court's order
granting judgment as a matter of law on the malicious prosecution
claim. Because the district court entered its judgment before
the jury considered the damage issue, we will remand for a new
trial.
                                C.
         Of course, the Supreme Court's holding in Heck would
also apply to Mosley's § 1983 claims, the issue directly before
the Court in that case. However, the district court permitted
Mosley's § 1983 claims to go to the jury, which decided against
him. Mosley nonetheless argues that he is entitled to a new
trial on his civil rights claims because the district court gave
an erroneous jury charge. The portion of the charge to which
Mosley points was as follows:
         The negligence on the part of a police officer does not
         violate a person's constitutional rights . . . . In
         order to find the police officer liable to the
         plaintiff, you must find that he acted with deliberate
         or reckless indifference to [Mosley's] safety.
         Davidson v. O'Lone, 752 F.2d 817, 828 (3d Circuit
         1984), affirmed sub nom. Davidson v. Cannon, 106 S. Ct.
         668 (1986).

              Deliberate or reckless indifference does not
         simply mean extreme carelessness; it means much more.
         To be found deliberately or recklessly indifferent, the
         defendant must have disregarded a serious known risk of
         harm under circumstances which make that disregard
         clearly unreasonable.

App. at 33-34 (emphasis added). At the court's invitation, a
juror requested that these paragraphs be repeated as soon as they
were given, and the court did so.
         Our review of the jury charge is plenary as Mosley
claims the district court employed an incorrect legal standard in
stating that Mosley was required to prove deliberate indifference
by the police officer to succeed on those claims. Griffiths v.
Cigna Corp., 988 F.2d 457, 462 (3d Cir.), cert. denied, 510 U.S.
865 (1993). If, looking at the charge as a whole, "the
instructions were capable of confusing and thereby misleading the
jury," we must reverse. Id.
          It is not entirely clear whether the trial court
intended that its instruction that the jury had to find that
Wilson acted "with deliberate or reckless indifference to
[Mosley's] safety," App. at 32-33, was to pertain only to the
excessive force claim or to both civil rights claims. The
instruction did not identify the particular "constitutional
rights" to which it referred. Reading the full charge, we
believe there was sufficient ambiguity in this regard that the
jury could have been led to believe that it had to find that
Wilson acted with deliberate or reckless indifference with regard
to both civil rights claims.
         In a case such as this, where it is undisputed that the
arrest and use of force were intentional acts, the district court
erred by instructing the jury as to "deliberate indifference."
This instruction required the jury to determine the officer's
subjective intent, whereas the appropriate inquiry on both civil
rights claims is an objective one.
         To find that there was an unlawful arrest in violation
of the Fourth Amendment, the jury need only have found that under
the facts and circumstances within Wilson's knowledge, a
reasonable officer could not have believed that an offense had
been or was being committed by the person to be arrested. SeeOrsatti v.
New Jersey State Police, 71 F.3d 480, 483 (3d Cir.
1995); United States v. Cruz, 910 F.2d 1072, 1076 (3d. Cir.),
cert. denied, 498 U.S. 1039 (1991). To find that Wilson used
excessive force, the jury was required to determine whether he
used force that was objectively reasonable under the
circumstances and facts confronting him at that time, without
regard to his underlying motivation. See Groman v. Township of
Manalapan, 47 F.3d 628, 634 (3d Cir. 1995). Neither of these
inquiries required the jury to consider Wilson's subjective
intent. Accordingly, an instruction on "deliberate indifference"
had no place in connection with either of the § 1983 claims and
erroneously added an element of subjective intent to Mosley's
claims.
         The district court cited Davidson v. O'Lone, 752 F.2d
817, 828 (3d. Cir. 1984) (en banc), affirmed sub nom. Davidson v.
Cannon, 474 U.S. 344 (1986), in support of its deliberate
indifference instruction. In Davidson, we held that an
allegation that prison officials had negligently failed to
protect the plaintiff inmate from another inmate did not state a
claim under § 1983 for deprivation of a Fourteenth Amendment
liberty interest, a conclusion affirmed by the Supreme Court.
That case is inapplicable here where there is no dispute that
Wilson committed intentional acts when he arrested Mosley and
used physical force against him. Whether he intended to violate
his civil rights in the process is irrelevant.
         Wilson argues that even if there were error in the
charge, it was harmless. As his counsel stated at oral argument:
"I simply do not believe that given the facts of the case, this
notion of `deliberate indifference'. . . that doesn't appear to
have any direct application here would have been a serious
consideration." Alternatively, Wilson argues that the error
actually benefitted Mosley by allowing the jury to find in his
favor even if the deprivation of his rights was not intentional,
because the deliberate indifference standard is "lower" than that
for an intentional deprivation of rights. Appellee's Brief at
13-14.
         A trial court's errors are harmless only if it is
"highly probable" that they did not affect the outcome of the
case. McQueeney v. Wilmington Trust Co., 779 F.2d 916, 924 (3d
Cir. 1985). We need not decide whether in all circumstances a
jury instruction that has no application to the charges at issue
leads to reversible error because in this case we believe that
the charge was indeed "capable of confusing and thereby
misleading the jury." Griffiths, 988 F.2d at 462.
         The jury could not be expected to understand that the
deliberate indifference instruction was inapplicable and should
have been disregarded. Certainly the deliberate indifference
charge given could have led a jury consisting of laypersons
unfamiliar with the complex jurisprudence of § 1983 to inject a
state of mind inquiry. It may have believed that to find for
Mosley on his unlawful arrest claim, it was required to find not
only that Wilson lacked probable cause to arrest him but also
that Wilson was subjectively aware of the potential violation of
Mosley's rights, and "deliberately indifferent" thereto.
Similarly, as to the excessive force claim, the charge could have
led a jury to believe that it had to find not only that Wilson
used excessive force under the circumstances, but that he did so
with "deliberate indifference," in the sense that he was aware
that the force he was using might be excessive. Because a
finding concerning the officer's state of mind is not required
for either civil rights claim, we cannot find that it is "highly
probable" that the jury's verdict was unaffected by the
deliberate indifference instruction and therefore harmless error.
We will therefore also remand the § 1983 claims as well to the
district court for a new trial.
                                III.
                            CONCLUSION
         For the foregoing reasons, we will reverse the order of
the district court granting Wilson judgment as a matter of law on
the malicious prosecution claim, and remand that claim as well as
Mosley's civil rights claims to the district court for a new
trial.
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