Filed: October 19, 2001
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Nos. 00-2165(L)
(CA-98-1638-AW)
Paul B. Essex, et al.,
Plaintiffs - Appellants,
versus
Prince George’s County, Maryland, etc., et al.,
Defendants - Appellees.
O R D E R
The court amends its opinion filed August 21, 2001, as
follows:
On page 4, first full paragraph, last line -- the phrase “in
favor of Maslousky” is corrected to read “in favor of Corporal
Washington.”
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
PAUL B. ESSEX; DAVID PAUL
MASLOUSKY,
Plaintiffs-Appellants,
v.
PRINCE GEORGE'S COUNTY,
MARYLAND, A Body Corporate and
Politic; KEITH WASHINGTON,
Corporal, Badge #1790, Prince
George's County Police
Department,
Defendants-Appellees,
No. 00-2165
and
DONALD CROTEAU, Officer, Prince
George's Department of
Corrections; ANTONIO BENTLEY,
Corporal; CHRISTOPHER DOWNING,
Officer, Prince George's
Department of Corrections; JOHN
DOE, Officer, Individually and in his
official capacity, Prince George's
County Police Department,
Defendants.
PAUL B. ESSEX; DAVID PAUL
MASLOUSKY,
Plaintiffs-Appellees,
v.
ANTONIO BENTLEY, Corporal,
Defendant-Appellant,
and
PRINCE GEORGE'S COUNTY,
MARYLAND, A Body Corporate and
Politic; KEITH WASHINGTON,
No. 00-2222
Corporal, Badge #1790, Prince
George's County Police
Department; DONALD CROTEAU,
Officer, Prince George's
Department of Corrections;
CHRISTOPHER DOWNING, Officer,
Prince George's Department of
Corrections; JOHN DOE, Officer,
Individually and in his official
capacity, Prince George's County
Police Department,
Defendants.
2
PAUL B. ESSEX; DAVID PAUL
MASLOUSKY,
Plaintiffs-Appellants,
v.
PRINCE GEORGE'S COUNTY,
MARYLAND, A Body Corporate and
Politic; KEITH WASHINGTON,
Corporal, Badge #1790, Prince
George's County Police
Department,
Defendants-Appellees,
No. 01-1048
and
DONALD CROTEAU, Officer, Prince
George's Department of
Corrections; ANTONIO BENTLEY,
Corporal, CHRISTOPHER DOWNING,
Officer, Prince George's
Department of Corrections; JOHN
DOE, Officer, Individually and in his
official capacity, Prince George's
County Police Department,
Defendants.
Appeals from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CA-98-1638-AW)
Argued: May 9, 2001
Decided: August 21, 2001
Before WILKINSON, Chief Judge, NIEMEYER, Circuit Judge,
and Arthur L. ALARCON, Senior Circuit Judge of the
United States Court of Appeals for the Ninth Circuit,
sitting by designation.
3
Affirmed in part, dismissed in part, and vacated and remanded in part
by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Terrell N. Roberts, III, ROBERTS & WOOD, Riverdale,
Maryland, for Appellants. Andrew Jensen Murray, Associate County
Attorney, Upper Marlboro, Maryland, for Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
David Paul Maslousky ("Maslousky") appeals from the order
granting judgment as a matter of law pursuant to Rule 50(b) of the
Federal Rules of Civil Procedure in favor of Corporal Keith Washing-
ton of Prince George's County Police Department. Maslousky also
appeals from the order granting Corporal Washington's motion to
alter the judgment. Maslousky contends that the district court erred in
granting Corporal Washington's motion for judgment as a matter of
law on his state law battery claim. Maslousky maintains that there
was sufficient evidence, when viewed in the light most favorable to
him, to support a jury's finding that Corporal Washington committed
battery. We agree and vacate the order granting judgment as a matter
of law in favor of Corporal Washington.
Maslousky further asserts that the district court abused its discre-
tion by conditionally granting Corporal Washington a new trial pursu-
ant to Rule 50(c)(1) of the Federal Rules of Civil Procedure. We
affirm the conditional order granting Corporal Washington's motion
for a new trial on the battery claim because we conclude that the
jury's verdict that Corporal Washington was liable for battery is
4
inconsistent with its determination that he was not liable for depriving
Maslousky of his state or federal constitutional rights. Maslousky also
seeks reversal of the order denying his motion for a new trial on his
battery and constitutional claims against Corporal Washington and
Prince George's County ("County") on the ground that the jury's ver-
dict is irreconcilable. We agree and vacate the order denying Mas-
lousky's motion for a new trial. Finally, Maslousky contends that the
district court erred in granting the County's motion to vacate Mas-
lousky's writ of execution of the judgment and stay Maslousky's
attempts to enforce the judgment pending final resolution of Corporal
Antonio Bentley's appeal. We deny Maslousky's appeal as moot.
In his cross-appeal, Corporal Antonio Bentley seeks reversal of the
order denying his motion for a remittitur or, in the alternative, for a
new trial on the issue of damages based on his contention that the
damages the jury awarded to Paul B. Essex ("Essex") for the injuries
he suffered as the result of an illegal strip search are excessive. We
conclude that the award was not excessive and affirm the denial of
Corporal Bentley's motions. Before discussing the merits of the issues
raised by the parties, we summarize the procedural background of this
matter.
I
Essex and Maslousky filed a complaint in this matter against Cor-
poral Washington of the Prince George's County Police, Corporal
Bentley of the Prince George's County Department of Corrections,
Officer Donald Croteau of the Prince George's County Department of
Corrections, and the County. In their second-amended complaint,
Essex and Maslousky allege in Count One that Corporal Washington
committed an assault and battery against Essex and Maslousky and
that Corporal Bentley and Officer Croteau committed an assault and
battery against Maslousky. The complaint alleges in Count Two that
Corporal Washington deprived Essex and Maslousky of their federal
constitutional rights in violation of 42 U.S.C.§ 1983, and that Corpo-
ral Bentley and Officer Croteau violated Maslousky's federal civil
rights under section 1983.
In Count Three, the complaint alleges that Corporal Washington
deprived Essex and Maslousky of rights protected under the Maryland
5
Constitution, and that Corporal Bentley and Officer Croteau deprived
Maslousky of the right to be free from unreasonable searches and sei-
zures under the Maryland Constitution. The complaint further alleges
in Counts Four, Five, Six, and Seven, that Corporal Washington is lia-
ble to pay damages to the plaintiffs for subjecting them to false arrest,
false imprisonment, invasion of privacy, and malicious prosecution.
In Count Eight, the complaint alleges that the County is liable pur-
suant to section 1983 for its failure to establish a uniform policy to
supervise, train, and discipline its police force properly on strip
searches and violations of the federal constitutional rights of its citi-
zens.
On May 2, 2000, the court granted Essex's and Maslousky's oral
motion to dismiss the complaint against Officer Croteau. On May 3,
2000, the court granted Essex's and Maslousky's oral motion to dis-
miss Count One (battery) against Corporal Bentley.11
This matter was tried before a jury. At the close of the plaintiffs'
case-in-chief, and again at the conclusion of the evidence, the defen-
dants moved for judgment as a matter of law pursuant to Rules 50(a)
and 50(b) of the Federal Rules of Civil Procedure. The district court
took both motions under advisement. The jury returned its verdict in
favor of Essex and against Corporal Washington on Count One (bat-
tery) and awarded nominal damages in the amount of $1.00. The jury
also found in favor of Maslousky and against Corporal Washington
on Count One and awarded $200,000.00 in compensatory damages
and $10,000.000 in punitive damages. The jury returned its verdict in
favor of Maslousky and against Corporal Bentley in Count Two (vio-
lation of section 1983) and in favor of Maslousky against Corporal
Bentley and the County on Count Three (violation of the Maryland
Constitution). The jury awarded Maslousky compensatory damages in
the amount of $50,000.00.
_________________________________________________________________
1 At some point during the trial, Essex and Maslousky apparently
requested that Count Six (invasion of privacy) be dismissed and the court
granted that motion. The joint Appendix provided to this court does not
show when this occurred.
6
On May 16, 2000, the district court entered an order granting judg-
ment in favor of Essex against Corporal Washington for the sum of
$1.00. Judgment was entered in favor of Maslousky against Corporal
Bentley and the County for the sum of $50,000.00. Judgment was
entered in favor of Maslousky against Corporal Washington for the
sum of $210,000.00. The May 16, 2000, judgment also memorializes
the district court's oral rulings dismissing defendant Donald Croteau
with prejudice, dismissing Count One as to Corporal Bentley, and dis-
missing Count Six as to all the defendants.22
On May 16, 2000, the defendants filed a motion for"judgment not-
withstanding the verdict or, in the alternative, for a new trial or
amendment of the judgment." On July 11, 2000, the court entered an
order granting judgment as a matter of law with respect to the battery
claim against Corporal Washington. It amended the judgment and
vacated the award of $210,000.00 in damages against Corporal Wash-
ington. It also denied the Defendants' motion to amend the judgment
as to the award of damages in the amount of $50,000.00 in favor of
Maslousky against Corporal Bentley and the County.
On July 14, 2000, Maslousky filed a motion for a new trial in light
of the order granting Corporal Washington's motion for judgment as
a matter of law, and a motion to amend the judgment. In a memoran-
dum opinion filed on August 21, 2000, the court denied Maslousky's
motions.
In its August 21, 2000 opinion, the court also stated that it would
amend its order granting the motion for judgment as a matter of law
to clarify the court's intent that its judgment in favor of Essex on the
battery count should not be disturbed. In addition, the court also
informed the parties that, pursuant to Rule 50(c)(1) of the Federal
Rules of Civil Procedure, it would conditionally grant Corporal
Washington's motion for a new trial should the judgment as a matter
of law be reversed on appeal. The court denied Maslousky's motion
for a new trial, and his motion for reinstatement of the judgment
against Corporal Washington. In its August 21, 2000 order, the court
_________________________________________________________________
2 It is not clear from the joint Appendix when or if Counts Four and
Five were dismissed. On appeal, the parties do not contest the finality of
the court's May 16, 2000, judgment.
7
entered judgment in favor of Essex against Corporal Washington for
$1.00, and in favor of Maslousky against Corporal Bentley and the
County for the sum of $50,000.00. The court also granted Corporal
Washington's motion for judgment as a matter of law on Maslousky's
battery claim.
Maslousky and Essex filed a timely notice of appeal on August 30,
2000 from the order filed on July 11, 2000 and the order filed on
August 21, 2000. Corporal Washington and Corporal Bentley have
cross-appealed.
II
Maslousky contends that the district court erred in granting judg-
ment as a matter of law in favor of Corporal Washington on the bat-
tery claim because there is evidence in the record that would support
a finding that Corporal Washington's arrest of Maslousky for the
common-law offense of hindering was not supported by probable
cause. He argues that "[t]he touching of Maslousky by Washington
was intentional, it was without Maslousky's consent, and it was harm-
ful and/or offensive."
"In reviewing a district court's decision on a Rule 50(b) motion, we
view all the evidence in the light most favorable to the prevailing
party and draw all reasonable inferences in his or her favor." Konkel
v. Bob Evans Farms Inc., 165 F.3d 275, 279 (4th Cir. 1999). Judg-
ment as a matter of law should only be granted "if a district court
determines, without weighing the evidence or considering the credi-
bility of the witnesses, that substantial evidence does not support the
jury's findings." Id.
Our task then, in reviewing the merits of this contention, is to
determine whether, viewing all the evidence in the light most favor-
able to Maslousky, there is substantial evidence to support the jury's
finding that Corporal Washington did not have probable cause to
arrest Maslousky for hindering.
This unfortunate contretemps arose out of a two-car traffic accident
that occurred approximately a half-mile from Maslousky's residence.
8
Immediately prior to the collision, Essex visited Maslousky at his res-
idence. Maslousky is an automobile repair mechanic and a good
friend of Essex. Essex returned the automobile he had borrowed from
Maslousky while he repaired Essex's Chrysler. Approximately one-
half of a mile from Maslousky's residence, Essex's vehicle was struck
on the passenger side by another automobile as Essex drove through
an intersection controlled by traffic lights. Essex testified that he did
not see the light. Essex approached the other vehicle to determine the
condition of its occupants, Mr. and Mrs. Wang, as well as to express
his regret that the accident had occurred.
A passenger in a vehicle not involved in the collision called 911
on his cell phone to summon an ambulance and the police. Essex bor-
rowed the cell phone and called Maslousky and asked him to come
to the scene of the accident because the Chrysler appeared to be inop-
erable. Maslousky drove to the scene, inspected the damage to the
Chrysler and then drove off to borrow a tow truck.
Corporal Washington was dispatched to investigate the collision.
He was accompanied by Officer Venus Atkinson, a police recruit who
was being trained by Corporal Washington. At trial, parties presented
conflicting evidence regarding the events that occurred when the offi-
cers arrived at the scene of the accident.
Essex testified that when Corporal Washington first approached
him the officer's demeanor was hostile. Corporal Washington asked
Essex why he caused the accident. Essex told him he did not know
if he had caused the accident but he had not seen the traffic light. Cor-
poral Washington told Essex that he could arrest him because an acci-
dent that causes personal injury is very serious. Essex responded:
"Well, just do what you have to do." Two witnesses to the accident,
Anne Marie Curtis and Maniram Tiwari, observed Essex's interaction
with Corporal Washington. Ms. Curtis testified that Corporal Wash-
ington "was very rude and short" when he spoke to Essex. Mr. Tiwari
testified that Corporal Washington was pompous, and that he exhib-
ited a "lack of patience [and] a lack of tolerance," and acted as if he
had a chip on his shoulder.
Following this exchange, Corporal Washington walked away from
Essex. After Maslousky returned to the scene with a tow truck, Cor-
9
poral Washington handed Essex two traffic citations. Essex signed
them and placed them in his shirt pocket. Essex testified that he did
not refuse to sign the tickets and was aware, as a member of the bar,
that signing a traffic citation is not an admission of guilt, but instead
is "a guarantee that you will appear in court."
When Corporal Washington handed Essex the traffic citations, he
stated: "I know you caused this accident." Essex replied: "I thought
that such a decision was for a court to make." Corporal Washington
responded: "Out here, I am the court." Corporal Washington then
stated: "I ought to arrest you. I ought to take you in." Essex replied:
"You do whatever you have to do." Essex then turned and started to
walk away. Corporal Washington grabbed his arm and pulled him to
the driver's side of the police car. He pushed Essex down on the car,
pulled his feet apart with his foot and said: "Spread your legs, put
your hands on the hood of the car."
Corporal Washington then conducted a pat-down search. At this
point, Essex took one hand off the hood of the police car, turned
around, and asked Corporal Washington: "Could you tell me what's
going on? What happened?" Corporal Washington then grabbed
Essex and threw him over the front of the car. Essex saw Mr. Wang
standing ten feet away. Essex stated: "Mr. Wang, please don't go, I
need a witness." Corporal Washington told Mr. Wang that he could
go. Some time thereafter, Corporal Washington told Mr. Wang: "I
thought I told you to go." Mr. Wang got into his car and drove away.
Corporal Washington also advised Maslousky that he could leave.
Maslousky told Corporal Washington that he was there to tow Essex's
car and needed the keys to the Chrysler. Someone handed the keys to
Maslousky. He returned to the sidewalk, approximately fifteen feet
away from Corporal Washington. Essex then stated to Maslousky:
"Please don't leave." Corporal Washington again told Maslousky to
leave. Maslousky replied: "Okay. But you need to start treating him
like an adult and not a child." Corporal Washington replied: "You
know, I could arrest you. I could put you in jail with your buddy."
Maslousky responded: "Look, I'm not trying to go to jail. I'm just
saying you're not treating him fairly." Thereupon Corporal Washing-
ton stated: "That's it. You're under arrest for hindrance." He pro-
10
ceeded to grab Maslousky's wrist and handcuff him. He ordered
Maslousky to sit on the wet grass.
Corporal Washington called for backup. When the officers arrived,
Maslousky was placed in a police car. Essex was left at the scene after
the officers left. When Officer Atkinson asked Corporal Washington
what they should do with Essex, Corporal Washington replied: "Fuck
him, let him walk."
Maslousky testified that Corporal Washington taunted him en route
to the jail. Maslousky was so frightened by Corporal Washington's
demeanor that he began to pray out loud. Corporal Washington then
stated: "Who's that God you're praying to? Who is your God? Let's
see your God get you out of jail." Corporal Washington also asked
Maslousky if he had ever been in jail before and stated: "You know,
Bubba's in jail and Bubba's going to have his way with you." As they
arrived at the jail, Corporal Washington told Maslousky that he would
spend the whole weekend in jail, and if and when he was released
from jail, Maslousky would not be able "to get a job picking cotton."
At the jail, Maslousky was placed in the custody of corrections
officers including Corporal Bentley. Corporal Bentley subjected Mas-
lousky to a strip search in violation of the County's Correctional Cen-
ter policy. Maslousky was released on his own recognizance. The
charges against Maslousky were subsequently disposed of when the
prosecutor entered a nolle prosequi.
Corporal Washington offered a different version of these events
which we summarize below in our discussion of the validity of the
order granting his motion for a new trial. In determining whether to
grant a motion for judgment as a matter of law,"the court's sole duty
is to examine the sufficiency of the evidence tendered by the party
opposing the motion. If the evidence is sufficient, the judge should
not direct the verdict." Ellis v. Int'l Playtex, Inc., 745 F.2d 292, 298
(4th Cir. 1984).
Under Maryland law, "[a] police officer who has probable cause to
believe that a felony or misdemeanor is being committed in the offi-
cer's presence or within the officer's view, may arrest without a war-
rant any person whom the officer may reasonably believe to have
11
committed such offense." Md. Code 1957, Art. 27,§ 594B. The
common-law offense of hindering requires proof of the following ele-
ments:
(1) A police officer engaged in the performance of a duty;
(2) An act, or perhaps an omission, by the accused which
obstructs or hinders the officer in the performance of that
duty; (3) Knowledge by the accused of facts comprising ele-
ment (1); and (4) Intent to obstruct or hinder the officer by
the act or omission constituting element (2).
DiPino v. Davis, 729 A.2d 354, 362 (Md. 1999). "The rule of `proba-
ble cause' [is] a non-technical conception of a reasonable ground for
belief of guilt, requiring less evidence for such a belief than would
justify conviction but more evidence than that which would arouse a
mere suspicion. . . ." Graham v. State, 212 A.2d 287, 289 (Md. 1965).
Viewing the facts in the light most favorable to Maslousky, a ratio-
nal jury could reasonably infer that Corporal Washington did not have
probable cause to arrest Maslousky for hindering. The jury could have
found that Maslousky observed Corporal Washington angrily scold-
ing and physically restraining a friend who had, at most, caused a traf-
fic accident by failing to stop at a red light. According to Maslousky's
version of the facts, at the time he was ordered to leave, Maslousky
was standing 15 feet away from Corporal Washington when he
requested the officer to treat Essex like an adult. These facts are not
sufficient to satisfy the elements of hindering. See DiPino, 729 A.2d
at 366 (holding that standing ten feet away from suspect and loudly
revealing identity of undercover police agents was insufficient to con-
stitute hindering where no evidence of intent to hinder or effect of
hindering and officer was not in harm's way when remark made); In
re Antoine H., 570 A.2d 1239, 1243 (Md. 1990) (holding that failure
to open the door to police, lying to police about the presence of a
fugitive, and general lack of cooperation with police were insufficient
to constitute hindering); Cover v. State, 466 A.2d 1276, 1285 (Md.
1983) (holding no hindering where defendant defied officer's order to
leave area via a specific route and then honked horn in area where she
knew officers were conducting surveillance); cf. Barrios v. State, 702
A.2d 961, 970 (Md. Ct. Spec. App. 1997) (affirming hindering con-
victions where a number of defendants shoved against officers and
12
into a crowd, chanted at the officers, refused to back up when ordered
to do so, and pulled suspect away from officers who were attempting
to effect an arrest).
Having determined that Maslousky presented sufficient evidence to
support a finding that he was arrested without probable cause, we next
consider whether the facts also demonstrated that Corporal Washing-
ton committed a battery. Under Maryland law, "[a] battery occurs
when one intends a harmful or offensive contact with another without
that person's consent." Nelson v. Carroll, 735 A.2d 1096, 1099 (Md.
1999). "The intent element of battery requires not a specific desire to
bring about a certain result, but rather a general intent to unlawfully
invade another's physical well-being through a harmful or offensive
contact or an apprehension of such a contact." Id. at 1101. Thus,
while "a purely accidental touching, or one caused by mere inadver-
tence, is not enough to establish the intent requirement for battery,"
id., "the intent required is not a specific intent to cause the type of
harm that occurred." Id. at 1100.
Under Maryland law, "a police officer, who might otherwise have
the benefit of [public official] immunity, does not enjoy it if the offi-
cer commits an intentional tort or acts with malice." DiPino, 729 A.2d
at 370. Maslousky offered sufficient evidence to show that Corporal
Washington intended to touch Maslousky in placing handcuffs on
him. The district court erred in granting Corporal Washington's
renewed motion for judgment as a matter of law.
III
We now turn to Maslousky's contention that the district court
abused its discretion by conditionally granting Corporal Washington
a new trial under Rule 50(c)(1) of the Federal Rules of Civil Proce-
dure. We have heretofore restricted our summary of the evidence to
Essex and Maslousky's account of the events, as we are required to
do in reviewing the district court's grant of judgment as a matter of
law under Rule 50(b). Corporal Washington's testimony conflicted
with the plaintiffs' evidence in critical details. Corporal Washington
testified that when he arrived at the scene, Essex appeared agitated
and was reluctant to talk to the officers. After Corporal Washington
determined that Essex had caused the accident, Essex refused to sign
13
the two traffic citations Corporal Washington prepared. Corporal
Washington advised him that failure to sign the tickets could lead to
his arrest. Essex responded "Do what you gotta do." When Essex
turned to walk away, Corporal Washington believed that Essex might
attempt to leave the scene of the accident. He decided to arrest Essex
for failure to sign the citations and, according to procedure, he con-
ducted a "succinct" pat-down search of Essex.
During the search, Maslousky approached Corporal Washington
from behind and asked him for the keys to Essex's car. Corporal
Washington asked Maslousky to step back and then gave him the
keys. At that point in time, Essex started screaming at Mr. Wang and
Maslousky not to leave. Maslousky was standing only three to five
feet from Corporal Washington. Maslousky said: "Don't touch him.
Get your hands off of him and treat him like an adult." Again, Corpo-
ral Washington informed Maslousky, "Step back. Move away. You're
hindering. You can be placed under arrest." Corporal Washington was
concerned by Maslousky's proximity to him and felt that the situation
could become volatile. Thus, he called for backup. When Maslousky
"continued to bark orders" at him, Corporal Washington placed him
under arrest. Corporal Washington made Maslousky sit on the ground
because they were near a roadway and he wanted to prevent him from
inadvertently wandering into the road in handcuffs and getting
injured. Corporal Washington testified that he neither threatened nor
taunted Maslousky on the way to the station.
Rule 50(c)(1) provides in pertinent part: "If the renewed motion for
judgment as a matter of law is granted, the court shall also rule on the
motion for a new trial, if any, by determining whether it should be
granted if the judgment is thereafter vacated or reversed. . . ." Fed. R.
Civ. P. 50(c)(1). We review a district court's grant of a conditional
new trial for an abuse of discretion. See Conner v. Schrader-
Bridgeport Int'l, Inc., 227 F.3d 179, 200 (4th Cir. 2000). A new trial
is warranted if (1) the verdict is against the clear weight of the evi-
dence; (2) the verdict is based upon evidence which is false; or (3) the
verdict will result in a miscarriage of justice. Atlas Food Sys. &
Servc., Inc. v. Crane Nat'l Vendors, Inc., 99 F.3d 587, 594 (4th Cir.
1996). "In considering a new trial motion, the district court may
weigh the evidence and consider the credibility of the witnesses."
14
Conner, 227 F.3d at 200. Moreover, "the proper remedy for an incon-
sistent verdict [is] a new trial." Atlas Food Sys., 99 F.3d at 598.
The jury's responses to the interrogatories on the verdict sheet
regarding the tort of battery and the constitutional claims in this mat-
ter are irreconcilable. The jury found that Corporal Washington was
not liable to Essex and Maslousky for depriving them of their rights
to be free from an illegal arrest or an unreasonable search and seizure
under the Fourth Amendment of the United States Constitution and
the Maryland Constitution. The jury also concluded, however, that
Corporal Washington was liable to Essex and Maslousky for battery.
The plaintiffs' battery and constitutional claims against Corporal
Washington hinged on the same underlying contentions: Corporal
Washington searched Essex and arrested Maslousky without probable
cause. Yet, the jury found in favor of the plaintiffs on the battery
claims and in favor of the defendants on the constitutional claims.
Because the jury was not asked to decide in a special verdict whether
Corporal Washington had probable cause to search Essex and arrest
Maslousky, it is impossible for this court to determine the basis for
the jury's inconsistent verdicts. The jury could have determined that
Corporal Washington lacked probable cause for the search of Essex
and the arrest of Maslousky and erroneously found against them on
the constitutional claims. Just as plausibly, the jury could have deter-
mined that Corporal Washington had probable cause for the search of
Essex and the arrest of Maslousky and erroneously found against him
on the battery claims.
We recognize that an appellate court must "harmonize seemingly
inconsistent verdicts if there is any reasonable way to do so." Atlas
Food Sys., 995 3d at 599. After reviewing the verdicts, we are unable
to harmonize the verdicts without speculating regarding the jury's
determination of the issue of probable cause.33
_________________________________________________________________
3 The jury instructions make clear that the jury was aware that lack of
probable cause was an element of both the constitutional claims and the
state tort claims. "Defendant's Requested Jury Instruction No. 1 (Use of
Force)" provides in pertinent part: "The Fourth Amendment's prohibition
against unreasonable seizures protects not only against arrests without
probable cause, but also against the use of excessive force in making
arrests and detentions that are themselves supported by probable cause."
15
The district court conditionally granted Washington a new trial
because "the evidence does not justify a verdict in favor of Maslousky
on the battery claim," and "the evidence in the current record does not
justify an award in the amount $200,000 on the battery claim." We
need not decide whether the court's reasons for granting a conditional
motion for a new trial are supported by the record. We must affirm
the district court's July 11, 2000 order and its August 21, 2000 opin-
ion because the jury's verdicts on the constitutional claims are incon-
sistent with its finding on the battery count in favor of Maslousky. See
Mann v. Haigh, 120 F.3d 34, 36 (4th Cir. 1997) ("[W]e may affirm
the judgment of the district court on any basis that the record fairly
supports.").
Thus, the district court did not abuse its discretion by granting
Washington a new trial on Maslousky's battery and constitutional
claims. We are also persuaded that Maslousky is entitled to a new
trial based on the inconsistency of the verdict rejecting his constitu-
tional claims but finding in his favor on his state law tort claim.4
4
_________________________________________________________________
"Defendant's requested Instruction No. 3 (Right to Arrest)" indicates that
"[a] police officer may arrest a motorist whom the officer has probable
cause to believe has refused to sign a traffic citation." "Defendant's
Requested Instruction No. 4 (Probable Cause)" defines probable cause.
"Defendant's Requested Instruction No. 5 (Search of Person Incident to
Lawful Arrest)" provides in part, that "[a] police officer may search a
motorist's person if the officer has probable cause to place the motorist
under arrest." Finally, "Defendant's Requested Instruction No. 6 (Privi-
lege to Arrest)" instructs in part, "The issue in this case, then, is whether
officer Washington had probable cause to believe that Mr. Maslousky
hindered Washington in the performance of his duties. . . . Even if, upon
retrospect, you conclude that officer Washington did not have the right
to arrest the plaintiffs, he nonetheless cannot be held liable for the state
tort claim unless you also find that he acted with malice, that is, conduct
evincing improper motivation, ill will, or evil intent."
4 Maslousky argues that Washington"waived any right to obtain any
relief based upon an inconsistent verdict" by failing to request that the
issues be resubmitted to the jury for further deliberations. We reject this
argument because attorneys for both parties lodged timely objections to
the inconsistent verdict prior to the discharge of the jury. Cf. White v.
Celotex Corp., 878 F.2d 144, 146 (4th Cir. 1989) (per curiam) (holding
16
For the first time in this appeal Essex requests that we grant him
a new trial on the ground that the verdicts are inconsistent. We
decline to consider the merits of this contention because Essex failed
to preserve this issue in the district court. See Holland v. Big River
Minerals Corp., 181 F.3d 597, 605 (4th Cir. 1999) ("Generally, issues
that were not raised in the district court will not be addressed on
appeal.").
IV
In his cross-appeal, Corporal Bentley contends that the district
court erred in refusing to remit the $50,000 compensatory damages
award in favor of Maslousky on his battery claim, or in the alterna-
tive, grant Corporal Bentley a new trial on the issue of damages. We
review the denial of a motion for remittitur or for a new trial for an
abuse of discretion, "giving `the benefit of every doubt to the judg-
ment of the trial judge.'" Konkel, 165 F.3d at 280 (citation omitted).
_________________________________________________________________
failure to object to verdict prior to the discharge of jury waives new
trial). The record makes clear that after the jury foreperson read the ver-
dict but before the judge discharged the jury, both parties objected to the
inconsistent verdict. In a colloquy with the judge at a side-bar, the attor-
ney for the defendants initially requested a mistrial and then requested
a new trial because of the irreconcilable verdict. In the same conversa-
tion, the attorney for Maslousky and Essex asked the judge to return the
jury to the jury room for five minutes while he considered the inconsis-
tencies in the verdict. The judge rejected the attorneys' requests, cut
short the discussion and instead discharged the jury, instructing the attor-
neys to file post-trial motions addressing the inconsistency in the verdict.
We are aware that "[p]recedent . . . favors resubmission of a contradic-
tory verdict." Hafner v. Brown, 983 F.2d 570, 575 (4th Cir. 1992); see
also Brode v. Cohn, 966 F.2d 1237, 1239 (8th Cir. 1992) ("[I]f `trial
counsel fails to object to any asserted inconsistencies and does not move
for resubmission of the inconsistent verdict before the jury is discharged,
the party's right to seek a new trial is waived.'" (citation omitted)). Mas-
lousky has cited no authority, and we can discover none, for the proposi-
tion that a party who timely objects to an inconsistent verdict but does
not request the proper relief, waives his or her right to a new trial. In any
event, under the circumstances of this case, we conclude that Washington
fairly preserved the issue of the inconsistency of the verdict.
17
We affirm on the grounds set forth by the district court in its memo-
randum opinion dated July 11, 2000. We also note that the amount the
jury awarded Maslousky is commensurate with other awards in illegal
strip-search cases. See, e.g., Mary Beth G. v. City of Chicago, 723
F.2d 1263, 1276 n.11 (7th Cir. 1983) (giving a range of $15,000 to
$112,500 in strip-search cases); Joan W. v. City of Chicago, 771 F.2d
1020, 1025 (7th Cir. 1985) (holding reasonable a $75,000 award for
a strip-search pursuant to a traffic stop).
V
One final issue requires our review. On December 5, 2000, Mas-
lousky attempted to execute his judgment against the County by filing
a writ of execution. The County responded by filing a motion to
quash the writ of execution or to stay the enforcement of the judgment
pending Bentley's cross-appeal. The County argued that because the
judgment against the County was founded solely on its vicarious lia-
bility for Bentley's actions, a successful appeal by Bentley would
eliminate the basis for the judgment against the County. Thus, the
County maintained, if Bentley prevailed in his appeal, the County
would seek relief from the judgment under Rule 60(b) of the Federal
Rules of Civil Procedure, which permits a district court to relieve a
party from a final judgment in certain circumstances. The district
court granted the County's motion to quash, vacated the writ of exe-
cution and stayed "any further attempts" by Maslousky to enforce the
judgment against the County "pending final resolution of the appeal
now pending before the United States Court of Appeals for the Fourth
Judicial Circuit." Maslousky timely appealed that order.
Maslousky contends that the district court erred in granting the stay
because the County cannot seek collateral relief from the judgment
under Rule 60(b) without having timely appealed the judgment. We
do not reach Maslousky's contention because Bentley has not pre-
vailed in his cross-appeal. "We only decide `Cases' and `Controver-
sies.'" In re Pruett, 133 F.3d 275, 278 (4th Cir. 1997) (citing U.S.
Const. art. III, S 2). "`[A]n appeal should be dismissed as moot when,
by virtue of an intervening event, a court of appeals cannot grant "any
effectual relief whatever" in favor of the appellant.'" Id. (citing Cal-
deron v. Moore, 518 U.S. 149, 150 (1996) (per curiam)). Conse-
18
quently, we dismiss Maslousky's appeal of the district court's grant
of the stay as moot.
The district court's grant of judgment as a matter of law to Corpo-
ral Washington is VACATED.
The district court's conditional grant of a new trial to Corporal
Washington is AFFIRMED.
The district court's denial of Maslousky's motion for a new trial on
his battery and constitutional claims against Corporal Washington and
the County is VACATED and REMANDED.
The district court's order denying Corporal Bentley a remittitur, or
a new trial on the issues of damages is AFFIRMED.
Maslousky's appeal of the district court's stay of the judgment
against the County is DISMISSED.
AFFIRMED IN PART, DISMISSED IN PART,
AND VACATED AND REMANDED IN PART
19