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. e du/thir dc ir c uit_1996/12UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 95-1989

JAMES MOSLEY, Appellant

v.

JOSEPH WILSON; LEWIS WILSON; PETER MANG O

On Appeal from the United States District C ourt for the Eastern District of Pennsylvani a (D.C. No. 91-cv-00712)

Argued July 15, 1996

Before: SLOVITER, Chief Judge, COWEN and ROTH, Circuit Judges

(Opinion filed December 11, l996)

Joseph P. Green, Jr. (Argued) Duffy & Green West Chester, PA 19380

Attorney for Appellant

L. Rostaing Tharaud (Argued) Marshall, Dennehey, Warner, Coleman & Goggin Philadelphia, PA l9l03

Attorney for Appellee

OPINION OF THE COURT

SLOVITER, Chief Judge.

A federal jury was presented with four cla ims filed by James Mosley against Joseph Wilson, a police office r of EastFallowfield Township, Chester County, Pennsylvania: two claims

for violations of Mosley's civil rights filed pursu ant to 42 U.S.C. § 1983, one of which was for arrest without probable cause and the other for use of excessive force, and two p endent state law claims, of which one was for malicious prosecut ion and the
other for intentional infliction of emotional distr ess. The jury returned a verdict for plaintiff Mosley on the mali cious prosecution claim, and for defendant Wilson on the other three
claims. The district court granted Wilson's post-t rial motion and entered judgment as a matter of law for him on the malicious prosecution claim. Mosley appeals.

I.

FACTS AND PROCEDURAL HISTORY
This action arose out of events that were the subject of a criminal prosecution brought in the Court of C ommon Pleas of Chester County, Pennsylvania. Because Mosley's civ il case was tried by a jury and the district court had no occas ion to make detailed factual findings, we rely largely on the d epiction of the relevant background events as set forth in Comm onwealth v. Mosley, 535 Pa. 549, 637 A.2d 246 (1993), the Penns ylvania Supreme Court's opinion on Mosley's appeal in the c riminal case. The initial events that transpired on the evening of January 31, 1989 are essentially undisputed. About midnight, Mosley, described by the Pennsylvania Supreme Court as "somewhat disconcerted," arrived at the police station in Eas t Fallowfield Township and met with defendant Officer Joseph Wils on, who was on duty that night. Id. at 247. Mosley told Wilson t hat he had had an argument with Sharon Smith, and that he had come to report his
version of the events before he was arrested. Whil e Mosley was in the police station, the police dispatcher inform ed Wilson that Smith had called in a complaint against Mosley. Of ficer Wilson then drove Mosley back to his residence in an attem pt to mediate the dispute. Id. After arriving at Mosley's home, Wilson we nt inside to speak to Smith, leaving Mosley in his patrol car. He returned a few minutes later and told Mosley that he was under arrest for assault and rape. (We note that Mosley was never c harged with any crime in connection with the alleged assault an d rape of Smith.) Wilson then locked Mosley in the police ca r and made a radio call for backup assistance from a neighboring municipality, and was shortly joined by his brother, Sergeant Lew is Wilson.
The two officers went inside the house to continue interviewing Smith, and left Mosley locked in the back of the pa trol car. Id. From this point, the accounts of the eveni ng's events diverge. The police officers maintain that while t hey were questioning Smith, Mosley began to bang violently a nd kick the inside of the police car, that Officer Wilson (the defendant in this case) attempted to handcuff him, that Mosley l unged at Officer Wilson and attempted to grab his gun while threatening to kill him, that they struggled and Sergeant Wilson r an outside and pulled Mosley off his brother, and that after sever al minutes of "wrestling," they handcuffed Mosley and took him to the hospital.

Id.Mosley's vastly different version of the s tory is that

after he was locked in the car for 30 minutes while the officers spoke with Sharon Smith, he began to bang on the in side of the car to get the officers' attention and gain his rel ease. Officer Wilson came outside, opened the car door and assaul ted him, and then pulled him out of the car and continued the as sault, aided by Sergeant Wilson, until they beat him into submis sion before finally taking him to the hospital. Id. Mosley was prosecuted and tried before a s tate court jury on charges arising out of the events, which co nvicted him on charges of terroristic threats, simple assault, rec klessly endangering another person, and resisting arrest, i n violation of 18 Pa.C.S.A. § 2706, § 2701(a)(1), § 2705, and § 51 04, respectively. Mosley was acquitted of aggravated a ssault. In addition, the trial court found Mosley guilty of th e summary offenses of criminal mischief and disorderly conduc t, 18 Pa.C.S.A. § 3304(a)(2) and § 5503(a)(1). On appeal, the Pennsylvania Supreme Court overturned Mosley's conviction because a key prosecution witne ss, Sergeant Wilson, had an ex parte conversation outside the co urtroom with a juror who eventually became the jury foreperson. D uring the conversation, the juror told Sergeant Wilson that h e was from
West Caln and was a friend of the Chief of Police t here, and Sergeant Wilson "complimented the juror on the qual ity of his hometown police department." Id. at 249. The Penn sylvania Supreme Court held that the trial judge erred in fa iling to question the juror about any possible taint that mi ght have resulted from this conversation and therefore the j udge was
unable to determine whether the encounter constitut ed harmless error. Accordingly, the Court vacated Mosley's con viction and granted him a new trial. Id. at 250. Instead of r etrying the case, however, the prosecutor granted Mosley nolle prosequi and dropped all criminal charges against him. Before the resolution of his appeal of con viction, Mosley filed this civil suit against Officer Wilson , Sergeant Wilson, and police chief Peter Mango, alleging that the police committed battery, assault, false imprisonment, mal icious prosecution, and malicious use and abuse of process . Mosley eventually dismissed the claims against Sergeant Le wis Wilson and Peter Mango, and trial proceeded before a jury on a ll claims against Officer Joseph Wilson in the Eastern Distri ct of Pennsylvania, bifurcated as to liability and damage s. The first trial ended in a hung jury. At the second trial, M osley's claims were reduced to two federal civil rights claims fil ed pursuant to 42 U.S.C. § 1983 alleging arrest without probable c ause and use of excessive force, and two pendent state law tort actions of malicious prosecution and intentional infliction of emotional distress. The jury returned a verdict in favor of Mosley on the state claim of malicious prosecution, but found for Wilson on all

other counts. Following the verdict, Wilson, arguing tha t the verdict on malicious prosecution was inconsistent with the verdict in his favor on the civil rights claims, moved to "mold th e verdict into a consistent verdict." App. at 102. The district c ourt grantedthe motion, issuing judgment as a matter of law pur suant to

Fed. R. Civ. P. 50 for Wilson on the malicious pros ecution claim on the ground that the verdicts on the different co unts were "blatantly inconsistent." Id. The district court reasoned that because the jury must have found that probable caus e existed to find for Wilson on the unlawful arrest claim, and b ecause probable cause for arrest is a "necessary element" in the malicious prosecution claim, the verdicts were lega lly inconsistent. The district court reasoned: "If pro bable cause existed for one claim, it had to exist for the othe r claim." Id. Consequently, the court "molded" the verdict in fav or of Wilson

on all counts. Mosley's appeal brief states that he seeks reinstatement of the malicious prosecution verdict, and if he could present his damage claim to the same jury he would waive retrial on the civil rights claims. He states that if that jury is not available, he seeks remand for a new trial o n both his malicious prosecution claim and on his civil rights claims, because the latter were marred by a legally erroneo us instruction. Obviously, the same jury is not avail able, and we confine ourselves to Mosley's request for a new tri al on the civil rights claims as well as the malicious prosec ution claim.

II.

DISCUSSION

A. We consider first Mosley's contention that the district court erred in applying Rule 50(b) setting aside th e jury's verdict for Mosley on the malicious prosecution cla im based on
the court's view that that verdict was inconsistent with the jury's verdict for Wilson on the civil rights claim s. Our review of the court's grant of judgment as a matter of law is plenary. Duquesne Light Co. v. Westinghouse Electric Corp., 66 F.3d 604, 613 (3d. Cir. 1995). Under Rule 50(a), the court may grant judg ment as a matter of law only if "a party has been fully heard on an issue and there is no legally sufficient evidentiary basi s for a reasonable jury to find for that party on that issu e." Fed. R. Civ. P. 50(a). In granting judgment as a matter of law following a jury verdict, the district court must view the ev idence in the light most favorable to the non-moving party, and d etermine whether the record contains the "'minimum quantum o f evidence from which a jury might reasonably afford relief.'" Parkway Garage, Inc. v. City of Philadelphia, 5 F.3d 685, 6 91 (3d Cir. 1993) (quoting Keith v. Truck Stops Corp., 909 F.2d 743, 745 (3d Cir. 1990)). Here, the district court did not conclude that there was insufficient evidence to support the jury's fin ding of malicious prosecution. Instead, the court conclude d only that the jury's verdict for Mosley on the malicious pros ecution claim
was inconsistent with its verdict for Wilson on the civil rights claim. The court explained as follows:

In order for the jury to have found in fav or of the defendant on plaintiff's civil rights clai m for arrestwithout probable cause, the jury would hav e had to

conclude that the defendant did in fact ha ve probable cause to arrest the plaintiff. However, i n order to have found in favor of the plaintiff on th e malicious prosecution claim, the jury would have had to conclude that the defendant lacked probable cause t o arrest plaintiff since lack of probable cause is a necessary element of a claim for malicious prosecuti on in Pennsylvania. . . . Thus, the jury's verdi ct as to those two claims was blatantly inconsisten t.

App. at 102 (emphasis in original). Wilson cites no authority that authorizes a district court to grant judgment as a matter of law based on the jury's inconsistency on different claims. The closest ana log in the Federal Rules of Civil Procedure appears in Rule 49 (b) which considers the appropriate course when a jury return s inconsistent answers to interrogatories or when a general verdic t is accompanied by one or more inconsistent interrogato ry answers. See Fed. R. Civ. P. 49(b). In the latter circumsta nce the district court must either return the jury for furt her
consideration of the verdicts or order a new trial. As we explained in Repola v. Morbark Industries, Inc., 93 4 F.2d 483, 495 (3d Cir. 1991), it would be "[n]either fair [n] or appropriate simply to excise the jury's . . . finding and to en ter judgment for [defendant]" based on the jury's verdict on a d ifferent claim
that rendered the verdicts inconsistent. Without t he court finding that the evidence was insufficient, the dec ision would be arbitrary and would trench on the Seventh Amendment

. Indeed, the inappropriateness of entering judgment as a matter of law solely on the basis of inconsistent v erdicts is evident in the procedural requirements for such a j udgment established by the Federal Rules of Civil Procedure . A motion for judgment as a matter of law rendered after tria l must be made on grounds that were previously asserted in a motio n for directed verdict prior to submission of the case to the jury . See Fed. R. Civ. P. 50(b) advisory committee's note; see also S immons v. City of Philadelphia, 947 F.2d 1042, 1077 (3d Cir.), cer t. denied, 503 U.S. 985 (1991); Abraham v. Pekarski, 728 F.2d 167, 172 (3d Cir.), cert. denied, 467 U.S. 1242 (1984). Obvious ly the inconsistency of the verdicts could not have been r aised in a motion for directed verdict prior to jury deliberat ions. Rule 49(b) does not address the issue befo re us here - that of inconsistent general verdicts. We have fou nd little precedent on this issue but there is a comprehensiv e discussion of inconsistent general verdicts in the opinion of Justice Stevens in Los Angeles v. Heller, 475 U.S. 796, 804 -06 (1986) (Stevens, J. dissenting), where the underlying fact pattern bore some similarity to that before us. Although the Su preme Court did not address the issue before us in its per curi am decision, Justice Stevens' dissent did discuss at some length whether inconsistent general verdicts in a civil case shoul d be allowed
to stand. Justice Stevens noted that when faced wi th apparently inconsistent verdicts in a civil case, the district court cantake several approaches. He noted that "in certain

circumstances, a court retains the authority, even in a civil case, to allow an apparently inconsistent verdict t o stand." Heller, 475 U.S. at 805; see United States Football League v. National Football League, 644 F. Supp. 1040, 1045 ( S.D.N.Y. 1986) (stating that "inconsistent verdicts on separate cl aims in a civil action are fully permissible."), aff'd, 842 F .2d 1335 (2d Cir. 1988); see also Globus v. Law Research Service , Inc., 418 F.2d 1276, 1290 n.17 (2d Cir. 1969) (stating that " consistent jury verdicts are not, in themselves, necessary att ributes of a valid judgment."), cert. denied, 397 U.S. 913 (1970 ). Second, Justice Stevens noted the court's "duty to attempt to read the verdict in a manner that will r esolve inconsistencies." Heller, 475 U.S. at 806. In thi s court, that requirement is illustrated by our decision in Lough man v. ConsolPennsylvania Coal Co., 6 F.3d 88, 108 (3d Cir. 1993 ), holding that a jury's finding that 100% of the harm was due to one defendant's actions was not inconsistent with the j ury's finding of liability for all of the defendants. Third, Justice Stevens referred to the tri al judge's responsibility "upon receiving an apparently incons istent verdict . . . not to retain half of the verdict, but to res ubmit the question to the jury." Heller, 407 U.S. at 806. T hat duty is comparable to the requirement imposed by Rule 49(b) when the answers to special interrogatories are inconsistent . See note 1,

supra. Finally, Justice Stevens observed that "if verdicts are genuinely inconsistent and if the evidence might su pport either of the 'inconsistent' verdicts, the appropriate rem edy is ordinarily, not simply to accept one verdict and di smiss the other, but to order an entirely new trial." Heller , 407 U.S. at 806. He then cited this court's opinion in Malley- Duff & Associates, Inc. v. Crown Life Ins. Co., 734 F.2d 1 33, 145 (3d Cir.), cert. denied, 469 U.S. 1072 (1984), which, a lthough it dealt with inconsistent special verdicts under Rule 49(a) rather than inconsistent general verdicts, is illustrative of the procedure to be used in the latter situation. It is of considerable significance that no ne of the approaches referred to by Justice Stevens supports the action of the district court in this case, i.e., directing a judgment notwithstanding the jury's verdict on one claim on the sole ground that it was inconsistent with the jury's ver dict on
another claim. It follows that the district court erred as a

matter of law.

B. Wilson argues that we should sustain the d istrict court's order on the ground that it "correctly amen ded" the jury's verdict for Mosley on his malicious prosecut ion claim because the jury's verdict was precluded as a matte r of law. He argues that despite the later reversal of Mosley's conviction by the Pennsylvania Supreme Court, Mosley's conviction by the jury for terroristic threats, assault, reckless endanger ment and resisting arrest, and the court's conviction of him on his summary offenses arising out of the same incident, wasdispositive of the probable cause issue in his civi l action.

Therefore, he claims, the issue of probable cause s hould never have gone to the jury. Issue preclusion, or collateral estoppel, bars relitigation of issues adjudicated in a prior actio n. Swineford v. Snyder County Pa., 15 F.3d 1258, 1266 (3d Cir. 1 994). Under this principle a conviction ordinarily will be a ba r to a subsequent state court suit for damages, such as on e for malicious prosecution. See W. Page Keeton, D. Dobb s, R. Keeton, & D. Owen, Prosser and Keeton on The Law of Torts § 119, at 874 (5th ed. 1984). The underlying rationale given is that because a plaintiff in a malicious prosecution action must sh ow the favorable termination of the underlying proceeding, a civil plaintiff whose conviction has not been reversed is unable to prove one of the essential elements of the tort - l ack of probable cause for the proceeding. Id. A different situation is presented when a conviction has later been overturned. The courts appear to be divided on the preclusive effect that the initial conviction s hould have on the issues of probable cause for the arrest and/or prosecution in a subsequent action for malicious prosecution broug ht against the police or municipal authorities. On one hand, the Restatement (Second) of Torts, views a conviction, even if late r overturned, as "conclusively establish[ing] the existence of pr obable cause, unless the conviction was obtained by fraud, perjur y or other corrupt means." Restatement (Second) of Torts § 66 7(1) (1977). The rationale given is that a guilty verdict establ ishes "that the person who initiated the proceedings had reason able grounds for so doing." Id. at § 667(1) cmt. b. On the other hand, there is "a considerabl e minority view which regards the conviction as creating only a presumption, which may be rebutted by any competent evidence sho wing that probable cause for the prosecution did not in fact exist." Prosser and Keeton on The Law of Torts § 119, at 88 2. The division among the states was noted in the separate opinions in Heck v. Humphrey, 114 S. Ct. 2364 (1994 ), where a closely divided Supreme Court considered the relate d issue of the effect of a conviction on the plaintiff's right to recover damages in a civil rights action brought under 42 U .S.C. § 1983. Justice Scalia authored the majority opinion, which held that "in order to recover damages for allegedly unconstituti onal conviction or imprisonment, or for other harm cause d by actions
whose unlawfulness would render a conviction or sen tence invalid, a § 1983 plaintiff must prove that the conviction o r sentence has been reversed on direct appeal, expunged by executi ve order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." Id. at 2372 (emphasis added). Justice Souter, writing separately for the four Justices who concurred only in the judgment, agreed with the majority insofar as its rule applied to prison inmates seeki ng § 1983 damages in federal court, but objected to applicati on of the majority's rule to those civil plaintiffs "who cann ot first obtain a favorable state ruling," or who can no lon ger bring ahabeas action because they are no longer in custody . Id. at 2379

(Souter, J. concurring in the judgment).
Heck did not involve a conviction that ha d been reversed on direct appeal, as Mosley's was here, bu t in the course of the two opinions and their footnotes the Justices
alluded to the effect of a conviction that was late r reversed on a common law malicious prosecution claim. Justice Souter cited authority that at common law a prior conviction, al though reversed, "dissolved [a] claim for malicious prosec ution because the conviction was regarded as irrebuttable evidenc e that the prosecution never lacked probable cause." Id. at 2 377. He acknowledged that this rule has been relaxed in mor e recent
times. Id. at 2377 n.3. Justice Scalia responded that even early i n the common law it was recognized that there must be exceptions (such as in cases involving fraud, perjury, or mistake of law) to "the general rule that a conviction defeated the malicio us prosecution plaintiff's allegation (essential to his cause of a ction) that the prior proceeding was without probable cause." Id. at 2372 n.4. He further noted that the Court had recognize d in Crescent City Live Stock Co. v. Butchers' Union Slaughter-Ho use Co., 120 U.S. 141, 149 (1887)), that "'[h]ow much weight as proof of probable cause shall be attributed to the judgment of the court in the original action, when subsequently reversed for error, may admit of some question.'" Id.

We must look to the current state of Penns ylvania law because malicious prosecution is a common law claim , and we are bound to give a state court judgment the same precl usive effect
as would the courts of that state. See 28 U.S.C. § 1738 (1988); Swineford, 15 F.3d at 1266. If the highest court h as not spoken to the issue, we can garner assistance from the dec isions of the state's intermediate appellate courts in predicting how the state's highest court would rule. Gares v. Willing boro Township, 90 F.3d 720, 725 (3d Cir. 1996); McKenna v. Pacific Rail Serv., 32 F.3d 820, 825 (3d Cir. 1994). The Pennsylvania Supreme Court has apparen tly not determined what preclusive effect should be given t o a conviction that was later overturned in a subsequent malicious prosecution suit. There are contrary signals from the intermed iate Pennsylvania courts. Compare Cosmas v. Bloomingdal es Bros., Inc., 442 Pa. Super. 476, 482, 660 A.2d 83, 86 (199 5) (stating
that a conviction even if overturned is conclusive proof of the existence of probable cause unless the party can sh ow undue influences at work in the conviction proceedings) w ith Cap v. KMart Discount Stores, Inc., 357 Pa. Super. 9, 12, 5 15 A.2d 52, 53 (1986) (holding that conviction by a justice of the peace reversed on appeal does not preclude action for mal icious prosecution even without any showing of undue influ ence in the process). Fortunately, we need not predict in this case precisely how the state supreme court would resolve the issue because under either analysis, Mosley's jury convic tion, which was later overturned, could not preclude litigation of the issue of probable cause in this civil action.In this case, we will assume arguendo that Wilson

correctly states that under Pennsylvania law "the o verturning of a conviction does not negate the finding of probabl e cause by the court absent 'fraud or other undue influences.'" Ap pellee's brief at 11 (quoting Cosmas, 660 A.2d at 86). We therefo re proceed to examine the Pennsylvania Supreme Court's opinion re versing Mosley's conviction to ascertain whether the basis for its action undermines the effect of the original conviction on the establishment of probable cause. Examination of the opinion shows that the Court reversed Mosley's conviction because of its concern that Mosley's trial was tainted by a lack of objectivity on the p art of the jury. The Court "decline[d] to adopt a per se rule which would require the disqualification of a juror anytime the re is ex parte contact between that juror and a witness," but inst ead held that
when such a "communication or contact has occurred between a juror and a witness, prejudice may be inferred at t he discretion of the trial judge." Mosley, 637 A.2d at 249. To rebut the inference of prejudice, "the communication must be explained or

shown to be harmless." Id.
The Court then reviewed the contact in thi s case: In the instant case, an important Commonwealth witness engaged in an ex parte conversatio n with a juror who later served as foreman of the j ury. The witness, Sergeant Lewis Wilson, was not on ly one of the arresting officers, but was also directly involved in the altercation which led to the charges u pon which Appellant was convicted. Since there were no corroborating eye witnesses, the case turn ed on a credibility determination between Appellan t and the two police officers.

The conversation between Sergeant Wil son and the juror amounted to more than a brief, incid ental contact. The two engaged in a dialogue in which the juror conveyed the fact that he was from W est Caln and
was a friend of the Chief of Police in tha t municipality. Sergeant Wilson then compli mented the juror on the quality of his hometown polic e department.

Id. at 249. The Court further stated:

Although we diverge from the "rebutta ble presumption of prejudice" rule used by the [Supreme Court of Utah] in Pike, we agree with the view that a juror may be subject to a subconscious inf luence or bias as a result of an unexpected cordial encounter
with a witness. This subconscious influen ce may have the improper effect of enhancing the credi bility of the witness in the eyes of that juror.

In the instant case, the trial judge never questioned the juror about any possible ta int which may
have resulted from his conversation with S ergeantLewis. Instead, defense counsel was given the

opportunity to call witnesses in support o f his Motion to Disqualify the Juror. This placed defe nse counsel in the difficult position of deciding whet her to avoid questioning the juror or run the risk of a ntagonizing a juror who might remain to decide his clien t's fate. The juror was never called as a witness by either side at the voir dire hearing on the Motion. W ithout the juror's testimony, the trial judge was not in a position to determine that the encounter b etween Sergeant Wilson and the juror amounted to harmless error. Consequently, the trial judge's de nial of Appellant's Motion to Disqualify the Juror was an abuse
of discretion.

Id. at 250. The Court concluded:

We, therefore, cannot say with any de gree of certainty that the contact did not establi sh a rapport, albeit unconscious, between Sergeant Wilso n and the jury foreman which in some way influenced the outcome
of the trial.

Id. (emphasis added). The Pennsylvania Supreme Court's lack of c onfidence in the reliability of the factfindings seems to us to be precisely
the sort of "undue influence" referred to in Cosmas and encompassed by the Restatement (Second) of Torts § 667(1). Even courts that today adhere to the view that a convict ion notwithstanding reversal is proof of probable cause leave some opening for these situations where the reversal imp ugns the reliability or integrity of the factfinding in the initial conviction. That was certainly the case in the Pen nsylvania Supreme Court's reversal of the conviction in Mosle y. We believe that the Pennsylvania courts, even if the position in Cosmos is adopted by its Supreme Court, would find that the c ircumstances set forth in the Mosley opinion are the kind of "un due influence" that negates the finding of probable cause that ste ms from the initial conviction. For this reason, we hold that Mosley's conviction in the Court of Common Pleas on charges of terroristic threats, simple assault, recklessly endangering ano ther person and resisting arrest are not conclusive of whether there was probable cause to prosecute him for these offenses. Accordingly, once his conviction was overturned, he was entitled to litigate
the issue in his civil case and the district court erred in declining to give Mosley the benefit of the jury's judgment on his claim of malicious prosecution.
We will therefore reverse the trial court' s order granting judgment as a matter of law on the malicio us prosecution claim. Because the district court entered its judg ment before the jury considered the damage issue, we will reman d for a new
trial.

C. Of course, the Supreme Court's holding in Heck wouldalso apply to Mosley's § 1983 claims, the issue dir ectly before

the Court in that case. However, the district cour t permitted Mosley's § 1983 claims to go to the jury, which dec ided against him. Mosley nonetheless argues that he is entitled to a new trial on his civil rights claims because the distri ct court gave an erroneous jury charge. The portion of the charg e to which Mosley points was as follows: The negligence on the part of a police off icer does not violate a person's constitutional rights . . . . In order to find the police officer liable to the plaintiff, you must find that he acted wit h deliberate or reckless indifference to [Mosley's] saf ety. Davidson v. O'Lone, 752 F.2d 817, 828 (3d Circuit 1984), affirmed sub nom. Davidson v. Canno n, 106 S. Ct. 668 (1986).

Deliberate or reckless indifference d oes not simply mean extreme carelessness; it means much more. To be found deliberately or recklessly ind ifferent, the defendant must have disregarded a serious known risk of
harm under circumstances which make that d isregard clearly unreasonable.

App. at 33-34 (emphasis added). At the court's inv itation, a juror requested that these paragraphs be repeated a s soon as they were given, and the court did so. Our review of the jury charge is plenary a s Mosley claims the district court employed an incorrect leg al standard in stating that Mosley was required to prove deliberat e indifference by the police officer to succeed on those claims. Griffiths v. Cigna Corp., 988 F.2d 457, 462 (3d Cir.), cert. den ied, 510 U.S. 865 (1993). If, looking at the charge as a whole, "the instructions were capable of confusing and thereby misleading the jury," we must reverse. Id. It is not entirely clear whether the tria l court intended that its instruction that the jury had to find that
Wilson acted "with deliberate or reckless indiffere nce to [Mosley's] safety," App. at 32-33, was to pertain o nly to the excessive force claim or to both civil rights claim s. The instruction did not identify the particular "consti tutional rights" to which it referred. Reading the full cha rge, we believe there was sufficient ambiguity in this rega rd that the jury could have been led to believe that it had to find that
Wilson acted with deliberate or reckless indifferen ce with regard to both civil rights claims. In a case such as this, where it is undisp uted that the arrest and use of force were intentional acts, the district court erred by instructing the jury as to "deliberate ind ifference." This instruction required the jury to determine the officer's subjective intent, whereas the appropriate inquiry on both civil rights claims is an objective one.
To find that there was an unlawful arrest in violation of the Fourth Amendment, the jury need only have fo und that under
the facts and circumstances within Wilson's knowled ge, areasonable officer could not have believed that an offense had

been or was being committed by the person to be arr ested. SeeOrsatti v. New Jersey State Police, 71 F.3d 480, 483 (3d Cir. 1995); United States v. Cruz, 910 F.2d 1072, 1076 ( 3d. Cir.), cert. denied, 498 U.S. 1039 (1991). To find that W ilson used excessive force, the jury was required to determine whether he used force that was objectively reasonable under th e circumstances and facts confronting him at that tim e, without regard to his underlying motivation. See Groman v. Township of Manalapan, 47 F.3d 628, 634 (3d Cir. 1995). Neithe r of these inquiries required the jury to consider Wilson's su bjective intent. Accordingly, an instruction on "deliberate indifference" had no place in connection with either of the § 198 3 claims and erroneously added an element of subjective intent t o Mosley's
claims.
The district court cited Davidson v. O'Lon e, 752 F.2d 817, 828 (3d. Cir. 1984) (en banc), affirmed sub no m. Davidson v. Cannon, 474 U.S. 344 (1986), in support of its deli berate indifference instruction. In Davidson, we held tha t an allegation that prison officials had negligently fa iled to protect the plaintiff inmate from another inmate di d not state a claim under § 1983 for deprivation of a Fourteenth Amendment liberty interest, a conclusion affirmed by the Supr eme Court. That case is inapplicable here where there is no di spute that
Wilson committed intentional acts when he arrested Mosley and used physical force against him. Whether he intend ed to violate his civil rights in the process is irrelevant. Wilson argues that even if there were erro r in the charge, it was harmless. As his counsel stated at oral argument: "I simply do not believe that given the facts of th e case, this
notion of `deliberate indifference'. . . that doesn 't appear to have any direct application here would have been a serious consideration." Alternatively, Wilson argues that the error actually benefitted Mosley by allowing the jury to find in his favor even if the deprivation of his rights was not intentional,
because the deliberate indifference standard is "lo wer" than that for an intentional deprivation of rights. Appellee 's Brief at

13-14. A trial court's errors are harmless only i f it is "highly probable" that they did not affect the outc ome of the case. McQueeney v. Wilmington Trust Co., 779 F.2d 916, 924 (3d Cir. 1985). We need not decide whether in all circ umstances a jury instruction that has no application to the cha rges at issue
leads to reversible error because in this case we b elieve that the charge was indeed "capable of confusing and the reby misleading the jury." Griffiths, 988 F.2d at 462. The jury could not be expected to understa nd that the deliberate indifference instruction was inapplicabl e and should have been disregarded. Certainly the deliberate in difference charge given could have led a jury consisting of la ypersons unfamiliar with the complex jurisprudence of § 1983 to inject a state of mind inquiry. It may have believed that t o find for Mosley on his unlawful arrest claim, it was require d to find not only that Wilson lacked probable cause to arrest hi m but alsothat Wilson was subjectively aware of the potential violation of

Mosley's rights, and "deliberately indifferent" the reto. Similarly, as to the excessive force claim, the cha rge could have led a jury to believe that it had to find not only that Wilson used excessive force under the circumstances, but t hat he did so with "deliberate indifference," in the sense that h e was aware that the force he was using might be excessive. Be cause a finding concerning the officer's state of mind is n ot required for either civil rights claim, we cannot find that it is "highly probable" that the jury's verdict was unaffected by the
deliberate indifference instruction and therefore h armless error.
We will therefore also remand the § 1983 claims as well to the
district court for a new trial.

III.

CONCLUSION For the foregoing reasons, we will reverse the order of the district court granting Wilson judgment as a ma tter of law on the malicious prosecution claim, and remand that cl aim as well as Mosley's civil rights claims to the district court for a new
trial.

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