Lee Asbury v. Mark Connelly, Police Officer

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-2084
LEE ASBURY,
Appellant
v.
MARK CONNELLY, POLICE OFFICER;
WILLIAM VOLLBERG, sued individually
and in their official capacities;
ROBERT W. JOBES, POLICE OFFICER;
ROBERT STOWMAN, POLICE OFFICER;
EDWARD FALLERT, POLICE OFFICER;
ANTOINE CAIN, POLICE OFFICER;
SGT. PAUL MINELLA, POLICE OFFICER;
TODD CENCI, POLICE OFFICER;
STEPHEN MATAKOVICH, POLICE OFFICER;
JOHN DOE #1, (Partner of MATAKOVICH);
JOHN DOE #2, (S.W.A.T. SGT.) sued in their
individual capacities; CITY OF PITTSBURGH
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civ. No. 97-00661)
Honorable Robert J. Cindrich, District Judge
Submitted under Third Circuit LAR 34.1(a)
December 17, 2002
BEFORE: SLOVITER, RENDELL, and GREENBERG, Circuit Judges
(Filed: December 18, 2002)

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Michael J. Lorence, Jr.
Suite 2210
428 Forbes Avenue
Lawyers Building
Pittsburgh, PA 15219
Attorneys for Appellant
Bryan Campbell
6th Floor
220 Grant Street
Pittsburgh, PA 15219
Susan E. Malie
City of Pittsburgh
Department of Law
414 Grant Street
313 City County Building
Pittsburgh, PA 15219
Attorneys for Appellee
OPINION OF THE COURT
GREENBERG, Circuit Judge.
This matter comes on before this court on an appeal by plaintiff Lee Asbury from
an order denying him a new trial entered on March 14, 2002. Asbury brought this action
under 42 U.S.C. § 1983 against the City of Pittsburgh and certain of its police officers
principally alleging that the officers unlawfully beat him while he was in custody in a police
vehicle. He alleged that the officers were liable because of their participation in the
beating and the City was liable because “through its well established practices, procedures,

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custom and/or policy [it] has acquiesced in the unconstitutional conduct of its officers.”
App. at 154. Asbury also asserted state law claims that we do not describe as they are not
germane to the issues raised on this appeal.
The defendants filed a joint motion to bifurcate the trial so that the case against the
officers would be tried first and, if necessary, that against the City would follow. The
defendants’ reason for bringing the motion was their belief that if the jury determined that
the individual defendants did not violate Asbury’s constitutional rights the second trial
would not be necessary as the City could not be liable if the officers did not commit a
constitutional tort. In fact, the jury returned a verdict for the officers following which the
court entered judgment for the City. After the court denied Asbury’s motion for a new trial
he appealed. The district court had jurisdiction under 28 U.S.C. §§ 1331, 1343, and 1367
and we have jurisdiction under 28 U.S.C. § 1291.
On this appeal Asbury asserts that the jury instructions were misleading, confusing
and prejudicial, the court used the wrong legal standard in the excessive force during
detention charge, the officers’ attorney’s closing argument violated the bifurcation order,
and the court should not have entered the bifurcation order.
Asbury predicates his argument that the district court erred in charging the jury
regarding the excessive use of force on his contention that the officers applied force when
he was in custody in a police van so that the use of any force was unjustified at that time.
We reject this argument. In considering this point we have no quarrel with Asbury’s
contention that the use of any force is unreasonable if none is needed. Here, however,

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there was evidence that Asbury was banging around in the police van and in these
circumstances the jury could have concluded that the police reasonably used force to
restrain him even though they denied using force. Thus, the court did not commit legal
error in giving the excessive force charge and did not abuse its discretion in its
formulation. See Woodson v. Scott Paper Co., 109 F.3d 913, 929 (3d Cir. 1997).
Moreover, we are satisfied that taking the charge as a whole and viewing it in the light of the
evidence the court fairly and adequately submitted the excessive force issue to the jury.
See In re Merritt Logan, Inc., 901 F.2d 349, 359 (3d Cir. 1990).
Asbury contends that the court erred in bifurcating the case because “proof of
individual officers liability [is] not a condition precedent to municipal liability.”
Appellant’s brief at 22. He then states, citing Monell v. Department of Social Services of
the City of New York, 436 U.S. 658, 690, 98 S.Ct. 2018, 2035-36 (1978), that “Congress
intended municipalities be held liable for action pursuant to official municipal policy which
causes a constitutional tort.” Br. of Appellant at 22 (emphasis added). Clearly Asbury’s
statements are not consistent for no matter what the policies of a municipality, in an
excessive force case (even if any force at all would be excessive) if the individuals
executing the policy did not use excessive force then the municipality cannot be liable. See
City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct 1571, 1573 (1986). Thus, for
there to have been a constitutional tort the individual officers had to be liable and their
liability was a condition precedent to municipal liability.
We have reviewed Asbury’s other arguments and find them to be without merit.

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For the foregoing reasons we will affirm the order of March 14, 2002, denying
Asbury a new trial.
TO THE CLERK:
Please file the foregoing not precedential opinion.
/s/ Morton I. Greenberg
Circuit Judge
DATED: December 18, 2002

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