NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 13-2710
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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
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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
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OPINION
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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