                                                                NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               _____________

                                    No. 12-1960
                                   _____________

                            JEFFREY DUNBAR REIFF,

                                                    Appellant

                                          v.

  CHAD T. MARKS, in his individual capacity and in his official capacity as a police
officer; BOROUGH OF WEST READING; EDWARD FABRIZIANI, in his individual
              capacity and in his official capacity as chief of police;
             WEST READING BOROUGH POLICE DEPARTMENT


                   On Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                                (No. 5-08-cv-05963)
                    District Judge: Honorable Cynthia M. Rufe

                  Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                 January 15, 2013
                                  ____________

             Before: SMITH, CHAGARES, and BARRY, Circuit Judges.

                              (Filed: January 22, 2013)
                                   ____________

                                     OPINION
                                   ____________

CHAGARES, Circuit Judge.

      In December 2008, Jeffrey Reiff filed a complaint under 42 U.S.C. § 1983 against

the Borough of West Reading (the “Borough”), the West Reading Borough Police
Department, Borough police officer Chad Marks, and Borough police chief Edward

Fabriziani based on Marks’s use of a TASER on Reiff during an arrest. The District

Court dismissed several claims and granted partial summary judgment against Reiff,

eliminating all defendants except for Marks. In March 2012, a jury returned a verdict in

favor of Marks on all remaining claims, and the District Court entered judgment in his

favor. Reiff now appeals, challenging the District Court’s summary judgment order in

favor of the Borough and several of its trial rulings. We will affirm the order and

judgment of the District Court.

                                              I.

       We write solely for the parties and will therefore recount only those facts that are

essential to our disposition. On January 5, 2007, Reiff was driving an automobile in

West Reading, Pennsylvania. Officer Marks observed that Reiff’s vehicle was illegally

stopped in an intersection. Marks turned on his emergency lights and sirens in order to

make a traffic stop. Reiff did not immediately pull his car over, but proceeded several

blocks and made four turns before stopping his car in a parking lot. After stopping,

Reiff exited his car and began to approach Marks’s patrol car. Marks initially drew his

service weapon, but then holstered it and instead drew a TASER. Reiff allegedly told

Marks to “fuck off,” began to walk away from Marks, and ignored Marks’s commands

to stop and get on the ground. Marks approached Reiff and discharged his TASER,

causing Reiff to fall to the ground. According to Marks, Reiff continued to refuse to

cooperate; because of his concern that he could not safely handcuff Reiff without the



                                             2
    assistance of another officer, Marks discharged the TASER three more times. Soon,

    another officer arrived at the scene and handcuffed Reiff.

          In his complaint, Reiff alleged that he was injured due to Marks’s use of the

    TASER and asserted that the TASER discharges were unnecessary and excessive. Reiff

    also claimed that the police department failed to train Marks properly on use of the

    TASER. In July of 2009, the District Court dismissed the West Reading Borough

    Police Department from the case and dismissed several claims against other defendants.

    Later, the District Court granted summary judgment in favor of the Borough and

    Fabriziani, but partially denied Marks’s summary judgment motion because there were

    disputes of fact as to the reasonableness of his TASER use. After a trial, a jury found

    that Marks did not intentionally use excessive force against Reiff in violation of the

    Constitution. Reiff now argues, inter alia, that the District Court erred in granting

    summary judgment in favor of the Borough, allowing an improper remark during

    Marks’s closing statement, and refusing to give the jury an adverse inference charge.

                                                II.1

                                                A.

          Reiff’s complaint alleged that the Borough was liable under 42 U.S.C. § 1983 for

    failure to train Marks to properly use the TASER. Specifically, Reiff claimed that the

    police department lacked proper supervision and that its policy failed to instruct officers

    that if they decided use of the TASER was necessary, they should discharge it as few


1
 The District Court had jurisdiction under 28 U.S.C. § 1331. We have appellate
jurisdiction pursuant to 28 U.S.C. § 1291.
                                                 3
    times as possible. The District Court granted summary judgment in favor of the

    Borough, concluding that there was “no evidence that the Borough showed a deliberate

    indifference to the constitutional rights of its citizens.” Appendix (“App.”) 28a. Reiff

    points to trial testimony and his own list of alleged facts about the police department’s

    training program to support his conclusion that the District Court erred and that the

    police department’s “loosey-goosey policy resulted in the Taser being used as a party

    game.” Reiff Br. 22.

          We need not review the merits of the District Court’s grant of summary judgment

    in favor of the Borough because a municipality may not be held liable on a failure to

    train theory when a jury has found that the plaintiff has suffered no constitutional

    violation. City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (explaining that no

    Supreme Court “cases authorize[] the award of damages against a municipal corporation

    based on the actions of one of its officers when in fact the jury has concluded that the

    officer inflicted no constitutional harm”). This Court has embraced the Supreme Court

    holding in Heller on several occasions. See, e.g., Hill v. Borough of Kutztown, 455 F.3d

    225, 245 (3d Cir. 2006); Grazier ex rel. White v. City of Philadelphia, 328 F.3d 120, 124

    (3d Cir. 2003) (“The District Court correctly determined that any error in granting

    judgment for the City at the close of the plaintiffs’ case would have been rendered

    harmless by the jury’s verdict of no liability against [defendant police officers].”).2


2
  It is true that Heller may have left the door open for claims against a municipality
despite a jury verdict in favor of the defendant officer if the jury found in the officer’s
favor based on a good faith defense. 475 U.S. at 798. Yet, as in Heller, the District
Court here did not instruct the jury on a good faith or qualified immunity defense; the
                                                 4
      Reiff’s briefs do not address Heller or any subsequent case law concerning the

impossibility of holding the Borough liable if the jury verdict in Marks’s favor is upheld.

Because we will uphold the jury verdict, we will affirm the District Court’s grant of

summary judgment in favor of the Borough.

                                              B.

      Reiff also argues that the District Court erred by overruling his objection to a

comment made during closing arguments. In summarizing the events leading to Reiff’s

arrest, Marks’s counsel stated: “Folks, it’s not a traffic ticket, it’s fleeing and evading,

and then resisting arrest.” App. 1086a. Reiff objected, arguing that “[t]here’s nothing

about resisting in this case,” but the District Court overruled the objection, saying only,

“[t]his is argument.” Id. Reiff now asks for a new trial based on the District Court’s

decision. He cites no law in support of his request, but asserts that “the jury was

affirmatively misled by defense counsel into believing that the act of walking away

constituted resisting arrest giving the Defendant the right to taser the Plaintiff and shoot

him in the back.” Reiff Br. 31.

      We review the District Court’s decision for abuse of discretion, and will grant a

new trial only where an attorney’s allegedly improper statements or conduct make it

reasonably probable that the verdict was influenced by the resulting prejudice. Forrest v.

Beloit Corp., 424 F.3d 344, 351 (3d Cir. 2005). “Because the trial judge was present


jury answered “no” to its second interrogatory, which asked: “[D]id Defendant Officer
Chad Marks intentionally commit an act under color of state law that violated Plaintiff
Jeffrey Reiff’s Fourth Amendment right not to be subject to excessive force?” App.
1145a.
                                              5
and able to judge the impact of counsel's remarks, we defer to [her] assessment of the

prejudicial impact.” Fineman v. Armstrong World Indus., Inc., 980 F.2d 171, 207 (3d

Cir. 1992).

       There was no abuse of discretion here. The District Court made clear that defense

counsel was simply making an argument, and the court gave no indication that counsel’s

characterization was correct or should be relied upon by the jury. See App. 1101

(District Court explaining to jury that attorney arguments are not evidence). Further,

given the minor and isolated nature of the comment and the fact that the jury was well

aware of both parties’ versions of what occurred prior to Marks’s use of the TASER, the

District Court was well within its discretion to conclude that use of the term did not

generate prejudice that could influence the verdict. Accordingly, we will not grant a

new trial because of defense counsel’s use of the term “resisting arrest” in closing

arguments.

                                              C.

       Reiff also urges us to order a new trial because the District Court refused to give

an adverse inference charge to the jury about data that was lost when the police

department sent the TASER in for repairs.

       Reiff’s arrest took place on January 5, 2007, but he did not file this lawsuit until

almost two years after that. During the litigation, Reiff discovered that the police

department sent the TASER used in the arrest for repairs in August of 2007, and that the

data stored in the TASER had been erased while it was being repaired. Thus, as Reiff

argued to the District Court, he was unable to verify the amount of voltage officer Marks

                                              6
used or the number and duration of discharges. Reiff asked the District Court if he could

cross-examine Marks about the loss of the data,3 and also requested that the court give the

jury an adverse inference charge because of the department’s failure to preserve the data.

After a somewhat lengthy discussion concerning the TASER manual and the timing of

the lawsuit, the District Court denied Reiff’s requests.

       “When the contents of a document are relevant to an issue in a case, the trier of

fact generally may receive the fact of the document’s nonproduction or destruction as

evidence that the party that has prevented production did so out of the well-founded fear

that the contents would harm him.” Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326,

334 (3d Cir. 1995) (affirming district court’s decision not to draw adverse inference

because it was not clearly erroneous to find that destruction of evidence was unrelated to

lawsuit). However, to apply the inference, “it must appear that there has been an actual

suppression or withholding of the evidence.” Id. Here, the District Court acted within its

discretion to deny Reiff’s request. Reiff failed to demonstrate that the police department

had any duty to preserve the evidence for more than seven months when no litigation was

pending. He also failed to demonstrate that by sending the TASER for repairs seven

months after the arrest, the department was purposely destroying data. We therefore hold

3
  Though one of the section headings in Reiff’s brief indicates that he also wishes to
challenge the District Court’s decision to disallow cross-examination, he makes no
argument to that effect. In any event, given the fact that Reiff could not show the
department had any duty to preserve the TASER data, we conclude that it was not an
abuse of discretion to determine that such a cross-examination would cause prejudice or
lack sufficient relevance. See Douglas v. Owens, 50 F.3d 1226, 1230 (3d Cir. 1995)
(discussing standard of review and emphasizing district court’s wide latitude in limiting
scope of cross-examination).

                                              7
that it was proper for the District Court to conclude that the loss of data did not

“indicate[] fraud and a desire to suppress the truth.” Id. Accordingly, we will uphold the

District Court’s decision to refuse Reiff’s request to provide the jury with an adverse

inference instruction.4

                                                 III.

             For the foregoing reasons, we will affirm the order and judgment of the District

    Court.




4
  We can discern at least one additional argument in Reiff’s brief, though the relief he
seeks is unclear. One section of the brief raises the “important policy question” of
whether “if municipal police officers cannot arrest an offender for a traffic offense, can
they taser the offender.” Reiff Br. 24. Based on his conclusion that the arrest was
improper, Reiff argues that after he parked the car and began to walk away, Marks should
have simply taken the car’s registration number and mailed a citation to the owner of the
car. Id. 27. None of the arguments contained in this section of Reiff’s brief persuade us
to alter the District Court’s judgment.
                                                  8
