UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

GARY FRANKLIN MURRAY,
Plaintiff-Appellee,

v.

RICKY FRYE, Officer,
Defendant-Appellant,

and
                                     No. 97-7330
LEESBURG POLICE DEPARTMENT; TOWN
OF LEESBURG, VA; LOUDOUN
COUNTY, VIRGINIA; DAVID DOE; JULIA
TURNER; NHP PROPERTY
MANAGEMENT, INCORPORATED; JAMES
KIDWELL,
Defendants.

GARY FRANKLIN MURRAY,
Plaintiff-Appellant,

v.

RICKY FRYE, Officer; TOWN OF
LEESBURG, VA,
Defendants-Appellees,
                                     No. 97-7382
and

LEESBURG POLICE DEPARTMENT;
LOUDOUN COUNTY, VIRGINIA; DAVID
DOE; JULIA TURNER; NHP PROPERTY
MANAGEMENT, INCORPORATED; JAMES
KIDWELL,
Defendants.
Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief Distict Judge;
Leonie M. Brinkema, District Judge.
(CA-96-1212-A)

Argued: January 29, 1999

Decided: May 4, 1999

Before WILKINS and KING, Circuit Judges, and
GOODWIN, United States District Judge for the
Southern District of West Virginia, sitting by designation.

_________________________________________________________________

Affirmed in part, reversed in part, and remanded with instructions by
unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Alan Douglas Titus, CARR, GOODSON, LEE & WAR-
NER, P.C., Washington, D.C., for Appellant. Victor Michael Glas-
berg, VICTOR M. GLASBERG & ASSOCIATES, Alexandria,
Virginia, for Appellee. ON BRIEF: Jeanne Goldberg, VICTOR M.
GLASBERG & ASSOCIATES, Alexandria, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

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OPINION

PER CURIAM:

I.

The appellee, Gary Franklin Murray, filed a civil complaint against
the appellant, Officer Ricky Frye, and the Town of Leesburg, Vir-
ginia, pursuant to 42 U.S.C. § 1983, alleging various constitutional
violations. After discovery, Officer Frye and the Town of Leesburg
filed motions for summary judgment. The district court granted the
town's motion, but denied Officer Frye's motion. A jury trial was had
on the four counts against Officer Frye. The jury returned a verdict
in favor of Murray on Count I, and for Frye on the remaining counts.
Frye now appeals the judgment as to Count I, and Murray cross-
appeals the grant of summary judgment to the Town of Leesburg and
the judgment entered on the verdict for Officer Frye on Count III.

We reverse the judgment in favor of Mr. Murray and affirm the
judgment in favor of Officer Frye. We also affirm the judgment
granted the Town of Leesburg. The judgment below is therefore
reversed in part and affirmed in part and remanded with instructions
that judgment be entered for the appellant, Ricky Frye.

II.

On September 3, 1994, Ricky Frye, an officer for the Town of
Leesburg's Police Department, received a tip from a confidential
informant that Gary Franklin Murray was selling marijuana from his
truck in the Loudoun House parking lot. The informant described
Murray and the truck. Officer Frye drove to the Loudoun House park-
ing lot and saw a man with a truck matching the informant's descrip-
tion. Frye was dressed in plain clothes and was driving a unmarked
red Ford Mustang convertible.

The plaintiff and the defendants have differing versions of what
happened next. Officer Frye claims that he got out of his car and
walked toward Murray. Frye says that Murray then leaned down and
tossed something under the truck. As he walked up to him, Frye said

                    3
that he had heard that Murray was selling marijuana. Frye says Mur-
ray then turned and began to walk away. Officer Frye recounts that
he then announced that he was a police officer and commanded Mur-
ray to stop. Murray then wheeled around, punched him twice in the
head and knocked him to the ground.

Mr. Murray's account is quite different. He claims that after Offi-
cer Frye asked about the marijuana, he answered that"a person can-
not believe everything that he hears," and then turned to walk away.
Murray says that Frye then grabbed him and roughly pulled him
around, slamming him against his truck. Murray says that he did not
know Frye was a police officer and defended himself by knocking
Frye to the ground.

The remaining facts are not in dispute. Upon hitting the ground,
Officer Frye removed a police radio from his rear pocket and called
for help. Officer Steven Pebler arrived, and along with Officer Frye,
placed Murray under arrest for assaulting Frye. Officer Frye then
searched the area and found six baggies of marijuana under Murray's
truck and one baggie inside the truck. Murray claimed that Officer
Frye planted the drugs.

Frye filed a criminal complaint, and a magistrate issued two arrest
warrants charging Murray with felony possession with intent to dis-
tribute marijuana and felony assault on a police officer. On October
11, 1994, the Loudoun County General District Court dismissed the
felony drug charge because the amount of marijuana was less than the
ounce required by the applicable code section. Later, the general dis-
trict court granted the Commonwealth's nolle prosequi motion with
respect to the felony-assault charge.

After both charges against Murray were dismissed, Officer Frye
obtained two new warrants charging Murray with misdemeanor
assault and misdemeanor possession with intent to distribute mari-
juana. On February 23, 1995, the general district court dismissed the
marijuana charge but found Murray guilty of the misdemeanor assault
charge. Murray was sentenced to a six-month suspended term of
imprisonment. He appealed and on May 24, 1995, the Loudoun
County Circuit Court reversed Murray's conviction.

                    4
On August 29, 1996, Murray filed suit against Officer Frye and
others alleging wrongful arrest and alleging that he was unconstitu-
tionally assaulted by Officer Frye in violation of the Fourth Amend-
ment.

After two amended complaints, Murray filed a third amended com-
plaint alleging various violations of 42 U.S.C.§ 1983 by Officer Frye
and the Town of Leesburg. The town and Frye moved for summary
judgment. On June 6, 1997, the district court granted the town's sum-
mary judgment motion and granted Murray two weeks to provide fur-
ther evidentiary support for his claims. The court further stated that
in the absence of additional evidence that Officer Frye planted evi-
dence, the court would grant Frye summary judgment. Shortly there-
after, Murray filed an affidavit from a witness and the district court
denied Frye's summary judgment motion.

Murray went to trial against Frye on four counts. Count I required
the jury to determine whether Frye unlawfully assaulted Murray.1
Count II required the jury to determine whether Frye had caused Mur-
ray to be arrested on September 3 without adequate legal grounds.
Count III required the jury to determine whether Frye filed false affi-
davits for an arrest warrant against Murray. The arrest warrants
alleged that Murray (a) wrongfully assaulted Frye and (b) possessed
and distributed marijuana. Count IV required the jury to determine if
Frye caused Murray's property to be unconstitutionally seized.2 At the
_________________________________________________________________
1 The trial judge earlier had indicated that Murray's allegation that Frye
planted evidence was the only factual dispute that precluded summary
judgment for Frye. Nevertheless, after the affidavit supporting this single
allegation was filed, the judge denied Frye's entire motion for summary
judgment.
2 Pursuant to Murray's arrest, the Commonwealth commenced a civil
forfeiture action against Murray's truck and the $710.00 that was found
on Murray's person when he was arrested. The Commonwealth non-
suited that action because the amount of marijuana was insufficient to
support a forfeiture of the truck. The Commonwealth commenced a sec-
ond forfeiture action against the $710 only. Eventually, the Loudoun
County Circuit Court directed that Leesburg return the $710 to Murray.
Murray does not cross-appeal the jury's verdict for Officer Frye on
Count IV.

                    5
close of evidence, Frye moved for judgment as a matter of law. The
court denied that motion.

After some deliberation, the jury asked the court a question con-
cerning Counts II and III. Both counts required the jury to make find-
ings about whether Frye wrongfully arrested Murray on two different
charges: (1) the assault of Officer Frye and (2) the distribution of mar-
ijuana. The jury inquired whether it could find for Murray on Count
II or III if it did not find that the arrests on both the assault charge
and the drug charge were wrongful. The court consulted with counsel
and notified the jury that it could not hold Frye liable for either count
unless it found that the arrest on each charge cited in that count was
improper. Under the court's "all or nothing" ruling, if the jury deter-
mined that the arrest on one charge was wrongful but the arrest on the
other was proper, Murray could not recover.

Subsequently, the jury returned a verdict in favor of Murray on
Count I and in favor of Frye on Counts II, III, and IV. Following trial,
Frye renewed his motion for judgment as a matter of law on Count
I and, in the alternative, for a new trial. Murray moved for a new trial
on Count III. The district court denied the motions and entered judg-
ment on the jury's verdict.

Officer Frye alleges that the district court erred in refusing to grant
summary judgment on qualified immunity grounds; in giving a jury
instruction on punitive damages; and in denying his motion for judg-
ment as a matter of law based upon the legal inconsistency between
the jury's verdict for Officer Frye on Counts II, III, and IV and the
jury's verdict against him on Count I. Murray cross-appeals alleging
error in the court's denial of his motion for a new trial on Count III
and in the court's granting summary judgment to the Town of Lees-
burg.

III.

A.

A district court's denial of the defendant's motion for judgment as
a matter of law and its decision concerning the applicability of quali-

                    6
fied immunity is reviewed de novo. DiMeglio v. Haines, 45 F.3d 790,
794 (4th Cir. 1995). On the other hand, the decision to grant or deny
a new trial is reviewed for a clear abuse of discretion. Bristol Steel
& Iron Works v. Bethlehem Steel Corp., 41 F.3d 182, 186 (4th Cir.
1994). The key question in such a review is whether there was an
error at trial that was so grievous that it rendered the trial unfair. Id.

B.

1.

A plaintiff may seek redress for the violation of her or his constitu-
tional rights by a state actor who was acting under the color of state
law. See 42 U.S.C.A. § 1983 (West Supp. 1998). However, a law
enforcement officer is immune from liability if"a reasonable officer
could have believed [the defendants' actions] to be lawful, in light of
the clearly established law and the information the . . . officer[ ] pos-
sessed." Anderson v. Creighton, 483 U.S. 635, 636 (1987); see also
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (holding that quali-
fied immunity should be granted to officials in§ 1983 actions when
the official's "conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known"). This Court has established a three-step analysis for deter-
mining whether an officer's conduct is covered by qualified immu-
nity:

          (1) identify the right allegedly violated, (2) decide whether
          that right was clearly established at the time of the alleged
          violation, and, if so, (3) determine whether a reasonable per-
          son in the officer's position would have known that his or
          her actions violated that right.

Smith v. Reddy, 101 F.3d 351, 355 (4th Cir. 1996) (citing Pritchett v.
Alford, 973 F.2d 307, 312 (4th Cir. 1992))."The qualified immunity
defense . . . provides ample protection to all but the plainly incompe-
tent or those who knowingly violate the law." Malley v. Briggs, 475
U.S. 335, 341 (1986).

To decide whether Officer Frye should have been immune from
suit on Count I of the complaint, we must view the evidence in a light

                     7
most favorable to the plaintiff and determine if Officer Frye's "rough
grab" violated Murray's Fourth Amendment rights, and if so, was
Officer Frye's action unreasonable? Because we conclude the answer
to both of these questions is "no," we find that the district court erred
in denying Frye's motion for summary judgment on Count I.

2.

We conclude that summary judgment should have been entered for
Frye on qualified immunity grounds.3 In conducting a de novo review,
we consider the facts in the light most favorable to the plaintiff. See
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
587-88 (1986). Even when viewed in the light most favorable to Mr.
Murray, Officer Frye's rough grab of Murray was certainly reason-
able under the circumstances, and therefore did not constitute an
unreasonable seizure of Murray's person. Murray contends that
Frye's rough grab, together with the fact that he did not identify him-
self as an officer, was unreasonable. We disagree.

Because we view the facts most favorably to Murray, we accept the
allegation that Officer Frye did not identify himself. However, we
conclude that the failure to announce that one is a law enforcement
officer is but one factor to be considered along with all other circum-
stances, in determining the reasonableness of the officer's actions.
The parties stipulated that Officer Frye had an articulable suspicion
sufficient to warrant a Terry stop. See Terry v. Ohio, 392 U.S. 1, 20
(1968). As Murray turned away, Frye simply used only that force nec-
essary to detain Murray so that Frye could further question him. See
Graham v. Connor, 490 U.S. 386, 396 (1989) ("Our Fourth Amend-
ment jurisprudence has long recognized that the right to make an
arrest or investigatory stop necessarily carries with it the right to use
some degree of physical coercion or threat thereof to effect it.").
Although the force could be characterized as a "rough grab," it did not
result in physical harm. In fact, the grab did not prevent Murray from
_________________________________________________________________
3 Qualified immunity should be resolved at the summary judgment
stage, if possible. See DiMeglio v. Haines, 45 F.3d 790, 794 (4th Cir.
1995) ("[The qualified immunity inquiry] is a pure question of law . . .
and hence always capable of decision at the summary judgment stage.")
(quotations and citations omitted).

                     8
wheeling around and delivering two knock-down blows to Officer
Frye's head. Giving Murray all the reasonable inferences from the
evidence, it is clear that Officer Frye's "rough grab" was not an unrea-
sonable seizure in violation of the Fourth Amendment.

Even if we were to conclude that the seizure was unreasonable, we
conclude that Officer Frye acted reasonably under the circumstances,
entitling him to immunity for his actions. See generally Lisa R.
Eskow & Kevin W. Cole, The Unqualified Paradoxes of Qualified
Immunity: Reasonably Mistaken Beliefs, Reasonably Unreasonable
Conduct, and the Specter of Subjective Intent That Haunts Objective
Legal Reasonableness, 50 BAYLOR L. REV. 869, 875-78 (1998) (distin-
guishing the reasonableness inquiries in Fourth Amendment analysis
and qualified immunity analysis). Certainly, a reasonable officer in
Frye's position could have believed that "grabbing" Murray under
these circumstances would not violate Murray's constitutional rights.
The objective question is whether under the totality of the circum-
stances, a police officer, without identifying himself or herself as
such, could have reasonably believed that grabbing a person in such
a manner was not a violation of a clearly established constitutional
right. Considering the stipulated articulable suspicions and the cir-
cumstances surrounding Frye's actions, we conclude that a reasonable
officer would not think it was a violation of Murray's rights to stop
and turn him around roughly without first identifying himself. See
Terry, 392 U.S. at 10 ("[I]n dealing with the rapidly unfolding and
often dangerous situations on city streets the police are in need of
escalating set of flexible responses, graduated in relation to the
amount of information they possess.). The district court erred in fail-
ing to grant summary judgment to Frye on Count I. Moreover,
because Frye was not liable to Murray on any count, there can be no
derivative liability for the Town of Leesburg. Consequently, we need
not address Murray's claim that summary judgment in favor of the
Town of Leesburg was in error.

C.

Murray cross-appealed the district court's refusal to grant him a
new trial on Count III. The jury was instructed that in order to render
a verdict in Murray's favor on Count III, the jury had to find that
Murray was wrongfully arrested, regardless of the relative merit of

                    9
the assault charge or the drug charge. In other words, the jury could
not make individual findings as to whether the warrant for the drug
charge or the warrant for the assaulting an officer charge were indi-
vidually without merit. Murray challenges the district court's instruc-
tion that the jury could not bifurcate the two claims.

The decision to deny a new trial "is not reviewable upon appeal,
save in the most exceptional circumstances." Lindner v. Durham
Hosiery Mills, Inc., 761 F.2d 162, 168 (4th Cir. 1985) (quoting Aetna
Casualty & Sur. Co. v. Yeatts, 122 F.2d 350, 354 (4th Cir. 1941)).

          Given the district court's intimate familiarity with the trial,
          the district court may weigh evidence and assess credibility
          in ruling on a motion for a new trial. . . . In reviewing a
          grant or denial of a new trial, the crucial inquiry is whether
          an error occurred in the conduct of the trial that was so
          grievous as to have rendered the trial unfair.

Bristol Steel & Iron Works, 41 F.3d at 186 (quotations and citations
omitted).

As an initial matter, we note that the district court followed the
plaintiff's complaint in instructing the jury, and the plaintiff acqui-
esced to the form of the instructions. Moreover, the trial judge did not
abuse her discretion by failing to bifurcate the claims after the jury
submitted the question. The jury's decision on Count I does not auto-
matically lead to the conclusion that the jury would have found in
favor of Murray on the assault arrest warrants if Count III were bifur-
cated. It is possible that even if the jury believed that Frye illegally
assaulted Murray, Frye could still have had a reasonable basis for
believing that the affidavit he submitted to support his warrant request
established probable cause for a charge that Murray illegally assaulted
a police officer. Even if Frye did not identify himself as a police offi-
cer verbally, he could have reasonably believed that under the circum-
stances, Murray struck Frye knowing full well that Frye was indeed
a police officer. See Malley, 475 U.S. at 345 (stating that the issue for
whether immunity is proper for the submission of an application for
an arrest warrant "is whether a reasonably well-trained officer in [the
defendant's] position would have known that his affidavit failed to
establish probable cause and that he should not have applied for the

                     10
warrant."). The district court did not abuse its discretion in failing to
grant Murray a new trial on Count III.

IV.

For the reasons stated above, we reverse in part and affirm in part
the district court's judgment below. We reverse the district Court's
judgment for the appellee, Gary Franklin Murray, with respect to
Count I of the complaint and remand with instructions that judgment
be entered for the appellant, Ricky Frye. As for summary judgment
in favor of the Town of Leesburg, and the denial of a motion for new
trial on Count III, we affirm.

AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED WITH INSTRUCTIONS

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