                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 13-2710
                                     ____________

                             ANTHONY LUIS TORRES,
                                             Appellant
                                      v.

      CITY OF PHILADELPHIA; DETECTIVE JENKINS; DETECTIVE PITTS;
            JOHN DOE NOS. 1-3, POLICE OFFICERS/DETECTIVES
                             ____________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                               (D.C. No. 2-12-cv-03879)
                    District Judge: Honorable Michael M. Baylson
                                    ____________

                         Argued November 1, 2016
          Before: HARDIMAN and GREENAWAY, JR., Circuit Judges, and
                        ROSENTHAL, District Judge.

                              (Filed: December 21, 2016)

Stuart T. Steinberg
Ellen L. Mossman [Argued]
Dechert LLP
Cira Centre, 2929 Arch St.
Philadelphia, PA 19104




      
         The Honorable Lee H. Rosenthal, United States District Judge for the Southern
District of Texas, sitting by designation.
              Counsel for Plaintiff-Appellant**

Elise M. Bruhl [Argued]
City of Philadelphia Law Department
1515 Arch Street, 17th Floor
Philadelphia, PA 19102
              Counsel for Defendants-Appellees
                                    ____________

                                        OPINION
                                       ____________

HARDIMAN, Circuit Judge.

       Anthony Torres filed a civil rights suit against the City of Philadelphia and several

of its police officers following his conviction for the murder of Tammy Hewitt. Torres

claimed he was illegally taken to the homicide unit against his will, beaten, and held for

three days before he was charged with Hewitt’s murder. At trial, Torres prosecuted claims

of illegal seizure/false imprisonment/false arrest, excessive force, and assault or battery

against two Defendants: Detectives James Pitts and Omar Jenkins. Defendants prevailed

on all counts, and Torres filed this appeal challenging the District Court’s jury

instructions and evidentiary rulings. Because Torres’s claims lack merit, we will affirm.

                                              I

       On July 10, Officer Ricardo Rosa apprehended Torres at his mother’s home and


       **
         The Court would also like to recognize the work of Kai Yi Xie on behalf of
Anthony Torres, performed while a law student at the University of Pennsylvania.
      ***
          This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.

                                              2
brought him in handcuffs to the homicide unit for questioning in connection with the

murder of Tammy Hewitt, who had died at the hospital the day before due to injuries

sustained from a severe beating. At the homicide unit, Torres met with Detectives Pitts

and Jenkins. The parties disputed what occurred between the three men. The detectives

claimed they engaged Torres briefly, leaving him alone after he refused to speak with

them. Torres claimed that the detectives continually interrogated him, refused him an

opportunity to see a lawyer, kicked and beat him, and broke his finger. Torres remained

confined in the homicide unit until he was charged on July 13.

       Torres mentioned no injuries to the officer processing him on July 13, but testified

that he mentioned his broken finger to personnel at the correctional facility upon his

arrival. A July 20 medical record reports a “boney deformity” in Torres’s finger. App.

124. Torres was later convicted of murder.

                                             II1

       In this appeal, Torres claims the District Court erred with respect to its jury

instructions and evidentiary rulings. We address each issue in turn.

                                             A

       Torres argues that the District Court improperly instructed the jury that a seizure

would require reasonable suspicion when the lengthy seizure in question clearly required


       1
         The District Court had jurisdiction under 28 U.S.C. § 1331. We have appellate
jurisdiction under 28 U.S.C. § 1291.

                                             3
probable cause.

       Torres contends that this objection was preserved, but the record proves otherwise.

Torres’s counsel initially objected to the Court’s planned instruction that reasonable

suspicion is required for a seizure, saying the length of the seizure required probable

cause. App. 242–43. However, when the Court offered to compromise with a single

interrogatory on “illegal seizure, false imprisonment, [and] false arrest” and asked if

Torres’s counsel still objected, counsel said “I think that’s fine.” App. 243. The Court

later confirmed it would instruct the jury that seizure required “reasonable suspicion,” and

counsel did not object at the charge conference or after the charge was read. App. 277,

281, 313, 340.

       We will not infer an objection from a contrary preference in instructions,

particularly where counsel later assented to the judge’s formulation. See Cooper Distrib.

Co. v. Amana Refrigeration, Inc., 180 F.3d 542, 550 (3d Cir. 1999). While Torres

attempts to analogize his case to United States v. Russell, 134 F.3d 171 (3d Cir. 1998), the

colloquy between judge and counsel in that case led to a ready inference that “the court

understood [counsel’s legal complaint] as an objection.” Id. at 179. The inverse occurred

here, as counsel indicated assent to the Court’s compromise instruction. Accordingly, we




                                              4
review for plain error.2

       Plainly erroneous jury instructions warrant a new trial when they are “fundamental

and highly prejudicial, such that the instructions failed to provide the jury with adequate

guidance and our refusal to consider the issue would result in a miscarriage of justice.”

Cooper Distrib. Co, 180 F.3d at 549 (citation omitted); see also Harvey v. Plains Twp.

Police Dep’t, 635 F.3d 606, 612 (3d Cir. 2011) (finding incorrect jury instruction plain

error where entire case may have turned on misstatement). Our exercise of plain error

review is “discretionary [and] should only be invoked with extreme caution in the civil

context.” Franklin Prescriptions, Inc. v. N.Y. Times Co., 424 F.3d 336, 341 (3d Cir. 2005)

(internal quotations omitted).

       The error here does not warrant vacatur and remand. We do agree with Torres that

there was obvious error. Supreme Court precedent instructs that probable cause is

required to transport a person from his home to a police station and place him in an

interrogation room from which he is not free to leave. See Dunaway v. New York, 442

U.S. 200, 212–13 (1979) (requiring probable cause for similar seizure). But Torres has

not shown that this error was “fundamental and highly prejudicial,” such that “our refusal


       2
         Defendants argue further that if there was error, it was invited error, precluding
any review. We disagree, as Torres did not suggest the instructions at issue. The invited
error doctrine bars a “defendant [from] complain[ing] on appeal of alleged errors invited
or induced by himself.” United States v. Maury, 695 F.3d 227, 256 (3d Cir. 2012)
(citation omitted). A litigant’s position must be “unequivocal” for the doctrine to bar later
challenge. Lima v. Newark Police Dep’t, 658 F.3d 324, 333 n.2 (3d Cir. 2011).

                                              5
to consider the issue would result in a miscarriage of justice.” Cooper Distrib. Co, 180

F.3d at 549. This is true for two main reasons.

       First, the judge instructed the jury to find for Torres on the tripartite interrogatory

if it found any of three violations—including false arrest, which was accurately instructed

under probable cause. Second, the police likely had probable cause to arrest Torres when

he was apprehended. Officer George Pirrone testified that prior to July 10, officers had

been told by medical personnel that Hewitt was attacked, and had been told by Hewitt’s

family that the victim was being abused in her living situation with Torres and Janelle

Bennett. In addition, officers had observed Torres behaving erratically and intensely at

the hospital.3

       For these reasons, we do not find a miscarriage of justice warranting vacatur.

                                              B

       Torres next argues that the District Court committed error when it instructed the

jury to determine “whether the amount of force [the Defendants] used was the amount


       3
         Torres’s counsel suggested at argument that much of this evidence was
inadmissible hearsay. But probable cause may rest upon hearsay, provided there exists “a
substantial basis for crediting the hearsay.” United States v. Ventresca, 380 U.S. 102, 108
(1965); see also United States v. Welebir, 498 F.2d 346, 349 n.2 (4th Cir. 1974) (stating
that “hearsay, even ‘second hearsay’, may provide a legal basis for a search warrant” so
long as information is otherwise reliable (collecting cases)). Pirrone was permitted to
credit his own officers’ direct observations, and the testimony of Hewitt’s family or
physicians—identified informants with reason to know of Hewitt’s circumstances—was
not obviously unreliable. Furthermore, Torres’s own statements were admissible against
him. Fed. R. Evid. 801(d)(2).

                                               6
which a reasonable police officer would have used in conducting an interview of a

suspect,” noting that “not every push or shove by a police officer, even if it may later

seem unnecessary in the peace and quiet of this courtroom, constitutes excessive force.”

App. 322. Because Torres has not offered evidence showing that counsel objected to this

instruction, we will review it for plain error.4

       Torres cites several cases to support the claim that no force may be used against a

compliant suspect during an interrogation. See, e.g., Bieros v. Nicola, 860 F. Supp. 226,

233 (E.D. Pa. 1994) (holding that “any amount of force used during an interrogation

violates one’s constitutional rights”). However, most of those cases allow for the

possibility that some force might be reasonable. See Ware v. Reed, 709 F.2d 345, 351 (5th

Cir. 1983) (“[T]he use of physical violence against a person [in custody] who poses no

threat . . . and who does not otherwise initiate action which would indicate to a reasonably

prudent police officer that the use of force is justified, is a constitutional violation.”);

Riley v. Dorton, 93 F.3d 113, 116 (4th Cir. 1996) (quoting same and referring to

“unjustified physical force”) (vacated on rehearing en banc by Riley v. Dorton, 115 F.3d

1159 (4th Cir. 1997) (determining that de minimis force did not constitute an Eighth


       4
         We agree with Torres that the Court changed the instruction from its original
statement that if the jury accepted Torres’s version of events, the force “would be
excessive.” App. 279. The Court instructed the jury that if they believed Torres, they
Amay conclude that the force he testified . . . defendants used against him was excessive
under the circumstances.” App. 323 (emphasis added). However, Torres’s counsel did not
object to this instruction, which mirrors the reasonableness instruction.

                                                7
Amendment violation)).

       Defendants note that the challenged instruction was taken from our model

instructions on excessive force—albeit in the context of a stop or arrest. See Third Circuit

Civil Jury Instructions 4.9. While we agree with Torres that the instruction does not

naturally fit the interrogation context—where force generally will be inappropriate—two

parts of Torres’s testimony made the instruction plausibly appropriate to the case at hand.

First, Torres described himself as belligerent during the interrogation, in response to

provocation, allowing for an inference that officers may have needed to restrain him in

some way. Second, Torres described one instance of potentially de minimis contact—an

“idiot smack,” which Torres compared to “Skipper smack[ing] Gilligan.” App. 116.

       Finally, even if we were to find obvious error, Torres has not given us reason to

infer a miscarriage of justice. In our view, it is quite unlikely that the jury could have both

credited Torres’s testimony that the officers punched, kicked and otherwise “beat[] the

shit out of [him],” and yet found that the force used by the officers was reasonable. App.

85, 90–91.

       In sum, absent an obvious error or reason to believe that Torres may have lost his

trial “entirely because of” the alleged error, Harvey, 635 F.3d at 613, we will not find

plain error.

                                              C




                                               8
       Torres also claims the District Court made two evidentiary errors that warrant a

new trial. Specifically, he objects to the admission of Officer Andrews’s pre-July 10

reports as hearsay and the exclusion of a medical report as unauthenticated. Neither

decision by the District Court was error.

       Officer Andrews’s testimony served a valid purpose—showing probable cause at

the time of arrest—other than “to prove the truth of the matter asserted.” Fed. R. Evid.

801(c)(2). The District Court instructed the jury that the information wasn’t “necessarily

. . . true,” but was relevant to whether officers “had probable cause to charge Mr. Torres.”

App. 215. While Torres emphasizes the Court’s formulation of “probable cause to

charge,” id., rather than “probable cause to arrest,” the challenged information all

concerned pre-arrest investigation and was therefore relevant to probable cause at the

time of arrest.5

       Finally, the District Court did not abuse its discretion in excluding Torres’s

medical report. That report, as the District Court noted, was neither stipulated to nor part

of Torres’s exhibit list. Furthermore, counsel had no means of authenticating the


       5
         Neither case cited by Torres to challenge the testimony as invalid dealt with a
challenge to probable cause. Rather, both cases questioned the admission of supposed
“background” information which may have been used to bolster the evidence for a
criminal conviction. United States v. Price, 458 F.3d 202, 210–11 (3d Cir. 2006); United
States v. Sallins, 993 F.2d 344, 346–47 (3d Cir. 1993). While background investigation
evidence may be unnecessary where it is “sufficient” for officers to report that they acted
“on information received,” Sallins, 993 F.2d at 346, we agree with the District Court that
such evidence is clearly relevant when the existence of probable cause is challenged.

                                              9
document nor could he argue that it was self-authenticating. Accordingly, the District

Court had no basis to allow the document into evidence.

                                     *      *      *

      For the reasons stated, we will affirm.




                                            10
