NOT PRECEDENTIAL

U N IT E D STATES COURT OF APPEALS

F O R THE THIRD CIRCUIT

C a se No: 05-4534

K E N N E T H T. BORNSTAD, ADMINISTRATOR OF THE ESTATE OF KEITH B.

B O R N S T A D , DECEASED,

Appellant

v. H O N E Y BROOK TOWNSHIP; HONEY BROOK TOWNSHIP

P O L IC E DEPARTMENT; WEST BRANDYWINE TOWNSHIP;

W E S T BRANDYWINE TOWNSHIP POLICE DEPARTMENT;

W I L L IA M BAXTER; MICHAEL SASSO, C/O HONEY BROOK

P O L IC E DEPARTMENT; JOHN COLDREN, C/O

W E S T BRANDYWINE TOWNSHIP POLICE DEPARTMENT;

D E N IS E NOKE, C/O BRANDYWINE POLOCE DEPARTMENT;

D A N I E L SHAPPELL

O n Appeal from the United States District Court

f o r the Eastern District of Pennsylvania

D is tric t Court No.: 03-cv-3822

D is tric t Judge: The Honorable R. Barclay Surrick

A rg u e d December 12, 2006

B e f o re : SMITH, ROTH, Circuit Judges,

a n d IRENAS,* District Judge (F ile d : January 5, 2007) C o u n s e l: Joseph F. Wusinich, III (Argued) E d w a rd C. Sweeney W u s in ic h , Brogan & Stanzione 5 3 7 West Uwchlan Avenue, Suite 200 D o w n in g to n , PA 19335 C o u n s e l for Appellant A n d re w J. Bellwoar (Argued) M ich a e l G. Crotty S ia n a , Bellwoar & McAndrew, LLP 9 4 1 Pottstown Pike, Suite 200 C h e ste r Springs, PA 19425 C o u n s e l for Appellee Township of Honeybrook, e t al.

J o h n P. Gonzales (Argued) Walter F. Kawalec, III M a rs h a ll, Dennehey, Warner, Coleman & G o g g in 0 0 Lake Drive East, Suite 300 C h e rry Hill, NJ 08012 C o u n s e l for Appellee West Brandywine T o w n sh ip , et al.

O P IN I O N OF THE COURT S M IT H , Circuit Judge. A p p e lla n t Kenneth Bornstad filed suit against the Township of Honey Brook, T o w n s h i p of West Brandywine, William Baxter, Michael Sasso, John Coldren, Denise N o k e , and Daniel Shappell alleging the use of excessive force in the death of his son, K eith Bornstad in violation of 42U.S.C. § 1983.1 The defendants moved for summary ju d g m e n t. The U.S. District Court for the Eastern District of Pennsylvania granted the m o tio n on September 9, 2005 on the grounds that the defendant police officers were p ro te c te d by qualified immunity and did not use excessive force, and that the defendant to w n sh ip s had not exhibited deliberate indifference by failing to properly train their e m p l o ye e s .

T h e questions presented on appeal are: (1) whether the trial court properly viewed all facts in the light most favorable to the appellant; (2) whether the police officers are e n title d to qualified immunity; (3) whether the police officers used excessive force; (4) w h e th e r the police officers failed to render adequate medical assistance; (5) whether the to w n sh ip s were deliberately indifferent in failing to train the police officers in appropriate p roc ed u res; (6) whether the District Court abused its discretion in denying the plaintiff's M o tio n to Preclude the testimony of Dr. G. John DiGregorio; and (7) whether the District C o u rt abused its discretion in partially precluding the testimony of R. Paul McCauley as to the reasonableness of the officers' use of force.2 I.

The District Court had subject matter jurisdiction in this case under 28U.S.C. §§ 1 3 3 1 and 1343, and 42U.S.C. § 1983. This Court has jurisdiction under 28U.S.C. § 1291.

The standard of review for a grant of summary judgment is plenary. Gilles v. D a v is, 427 F.3d 197, 203 (3d Cir. 2005). The District Court's grant of summary judgment in favor of the appellees will be affirmed if it appears that "there is no genuine issue as to a n y material fact and that they are entitled to a judgment as a matter of law." Id. (quoting C a m io lo v. State Farm Fire & Cas. Co., 334 F.3d 345, 354 (3d Cir. 2003)). An issue is m a te ria l if there is sufficient evidence favoring the nonmoving party for a jury to return a v e rd ic t for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

In evaluating the evidence, "a court must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party's favor." Farrell v. Planters L ife sa v e rs Co., 206 F.3d 271, 278 (3d Cir. 2000). The moving party "always bears the in itia l responsibility of informing the district court of the basis for its motion, and id e n tif yin g those portions of `the pleadings, depositions, answers to interrogatories, and 2 Kenneth Bornstad's appeals from the District Court's decision not to preclude Dr. G.

J o h n DiGregorio's opinion and to preclude in part the opinion of Dr. R. Paul McCauley a re not addressed here because they are mooted by our conclusion that summary judgment w a s properly granted on the § 1983 claims. a d m is s io n s on file, together with the affidavits, if any,' which it believes demonstrate the a b se n c e of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1 9 8 6 ) (quoting FED. R. CIV. P. 56(c)). However, "[i]n order to demonstrate the existence o f a genuine issue of material fact, the nonmovant must supply sufficient evidence (not m e re allegations) for a reasonable jury to find for the nonmovant." Olson v. Gen. Elec.

A s tr o s p a c e , 101 F.3d 947, 951 (3d Cir. 1996); FED. R. CIV. P. 56(e).

II.

O n June 6, 2002, Keith Bornstad ("Bornstad") returned to the home that he shared w ith Lorraine Barlow and her seven year-old daughter, Jessica. Bornstad had been d rin k in g and was intoxicated. Bornstad bit Barlow's daughter on the back and on the c h e ek . He then had a disagreement with Barlow and struck her in the face. Barlow called the 911 emergency number, but Bornstad thwarted her from speaking to the dispatcher.

W h en the dispatcher called back, there was no answer. Officers Sasso and Baxter were s u m m o n e d to the house to investigate the 911 hang-up at approximately 9:15pm. When th e two officers arrived on the scene they were met at the door by Bornstad and they a sk e d him about the 911 hang-up. He admitted that there had been a problem, but told th e m that it had passed. Barlow contradicted this statement. Officer Baxter walked with B o rn s ta d out to the porch where he spoke to him while Officer Sasso spoke with Barlow a n d viewed the bite mark on Jessica's back. When Officer Sasso returned to Officer B a x te r and Bornstad, he informed Bornstad that he was placing him under arrest.

B o rn s ta d refused to submit to the officers' requests that he put his hands behind h is back so that they could handcuff him. He swung his arms at the officers and hit one of th e m , eventually wrestling both to the ground. Barlow later stated that "[t]he only thing I o b s e rv e d was Keith started swinging first." Bornstad landed on the ground on his back.

T h e officers sprayed him with pepper spray, but to no effect. He continued to thrash and f la il his limbs at the officers, and was not compliant even after he had been handcuffed w ith his hands in front of his body. When Barlow came out of the house to see what was h a p p e n in g , the officers indicated to her that she should call 911 for backup. She later s ta te d that while the first two officers were attempting to subdue Bornstad they pressed a k n e e into his chest. Bornstad was still on his back at the time. She also reported hearing B o rn sta d "yelling out for me for help ... [a]nd [saying that] he was having trouble b re a th in g ." She could not recall how long the struggle between the first two officers and B o rn s ta d lasted.

When the backup officers arrived, they attempted to assist Officers Baxter and S a s s o in holding Bornstad down. The group turned Bornstad over in order to handcuff h im behind his back. Barlow later said that she did not see any of the backup officers on top of Bornstad, and that she never saw any of them hit him. The officers tied Bornstad's f e et and attempted to move him to the police cruiser. At the point that they were loading h im into the vehicle, one of the officers noticed that he was not breathing. They removed h i m from the vehicle and placed him on the ground. When Barlow came out of the house o n e more time, she saw Bornstad motionless on the ground. The officers commenced C P R , the ambulance arrived, and Bornstad was transported to the hospital where he was p ro n o u n c e d dead.

An autopsy performed by Dr. Ian Hood indicated that the cause of death was c o m p r e s s io n asphyxia contributed to by arteriosclerotic coronary vascular disease. Prior to receiving the lab reports on the specimens he had sent for toxicological evaluation, he a ls o opined that "a toxicological cause would best explain the described suddenness of th e death." He later indicated surprise at the lack of substances other than alcohol in B o rn s ta d 's system, stating that "I was expecting because of his behavior ­ he sounded v e ry much like cases that we encounter in Philadelphia, which turn out to have generally c o c a in e , but sometimes one of the other stimulants, as well, on board." In rendering his o p in io n , Dr. Hood relied upon his own examination, which revealed only superficial w o u n d s , and his observation of Bornstad's brain, which was "notable for intense injection o f meningeal vessels and a markedly `dusky' purple-gray color," and the presence of p e te c h ia e around his eyelids, small dot-like hemorrhages that are seen in victims of s tra n g u la tio n and compression asphyxia. The report further explained that "[c]onsecutive c o ro n a l sections disclose a very hypoxic purple-gray color of the deep and cortical gray m a tte r...." Dr. Hood also noted a 50-60 percent stenosis in the coronary arteries caused by s c a tte re d complex atheriosclerosis. However, Dr. Hood identified the primary cause of d e a th as compression asphyxia, citing the coronary vascular disease as only a contributing fa ctor.

D r. Rodger Rothenberger, the Chester County Coroner, issued a death certificate f o r Bornstad on September 6, 2002. He listed the immediate cause of death as co m p ressio n asphyxia. No other underlying causes were listed on the certificate. Dr.

R o th e n b e rg e r later explained that he did not include the coronary vascular disease on B o r n s ta d ' s death certificate because "I don't feel that the coronary vascular disease c o n trib u te d or was a key factor resulting in his death [because] the ... disease was present b u t was not found to any significant degree." The report from the toxicology lab indicated that Bornstad had a blood ethanol le v e l of 0.099 percent wt./vol., and a urine ethanol level of 0.17 percent wt./vol. The lab a lso analyzed Bornstad's urine for various drugs, and found that it was negative for all s u b s ta n c e s , including benzodiazepines, barbiturates, cannabinoids, amphetamines, o p ia te s, and cocaine. However, the lab's negative findings were accompanied by an ind icatio n that in fact there were very small units of some of the substances in Bornstad's u rin e sample.

III.

In reviewing a motion for summary judgment, district courts are obliged to view a ll facts in the light most favorable to the non-movant. Morton Int'l, Inc. v. A.E. Staley M fg . Co., 343 F.3d 669, 680 (3d Cir. 2003). Kenneth Bornstad asserts that the District C o u rt failed to properly credit several contradictions in the evidence, most notably the d i sc r e p a n c y between the police officers' testimony and the state forensic medical experts' te stim o n y and findings. Kenneth Bornstad also claims that the District Court discounted th e fact that the testimony of Lorraine Barlow and her friend, Angela Eckert, contradicted th e officers' accounts, and the discrepancies in the officers' testimony.

In fact, in its recitation of the facts of the case, the District Court mentioned the p rim a ry circumstantial evidence submitted by the appellant only once, as confirmation of B o rn s ta d 's time of death. See Bornstad ex rel. estate of Bornstad v. Honey Brook Twp., 2 0 0 5 WL 2212359, at *5 (E.D. Pa. Sept. 9, 2005). Although the District Court discussed th e medical opinions of Drs. Hood and Rothenberger in conjunction with its ruling on the a d m iss ib ility of certain expert testimony, the District Court gave little indication that it co n side red their opinions as factual predicates for its ruling on summary judgment. In f a ilin g to consider the circumstantial medical evidence proffered by the plaintiff, the D is tric t Court did not clearly follow the established standard for summary judgment.

In the District Court's discussion of excessive force, it largely relegated the p lain tiff 's claim of compression asphyxia to a footnote, noting that "[p]laintiff primarily relies on three federal court of appeals decisions to argue that a court can declare [that] a C o n stitu tio n a l violation for excessive force obviously occurs where compression asphyxia o c c u rs ." Bornstad, 2005 WL 2212359, at *18 (internal quotation omitted). The Court d is m is s e d Dr. Hood's conclusion that Bornstad died from compression asphyxia by sta tin g that "[t]here is no evidence that the officers used any force at all after Bornstad s to p p e d resisting." Id.

K e n n e th Bornstad argues that the District Court "simply accepted the gist of what m o s t of the police officers claimed happened," and "ignored, or failed to analyze with any rig o r, whatever evidence didn't match." It is true that the District Court opinion paid little a tte n tio n to either the testimony of Barlow or the medical opinions of Drs. Hood and R o th e n b e rg e r. However, the District Court's opinion closely tracks the opinion in Tofano v . Reidel, 61 F. Supp.2d 289 (D.N.J. 1999), which stated that "this court will assume that th e positioning of the officers inhibited Tofano's breathing and, at least in part, caused his d e a th . In other words, this court will assume that plaintiff's death resulted, at least in part, f ro m positional asphyxiation...." Id. at 301. By way of comparison, the District Court here s ta te d that "we will assume that the conduct of the Defendant officers inhibited B o rn s ta d 's ability to breathe and contributed to his death." Bornstad, 2005 WL 2212359, a t *18. Following Tofano's lead,3 the District Court stated that "[t]his assumption does n o t alter the conclusion that the officers acted reasonably in attempting to subdue B o rn s ta d ." Id. Although a more thorough explanation of how the Court construed all the f a cts in the light most favorable to the plaintiff is desirable, this deference to the p la in tif f 's theory of the case fulfills the minimum requirements of Rule 56(c).

IV.

We will affirm the District Court's opinion with respect to the excessive force 3 The decision in Tofano was not appealed, and has only been cited by five other district courts, including the District Court here. c la im . Although the defendant officers had probable cause for Bornstad's arrest, "the fact th a t the defendants had probable cause to arrest ... does not mean that they could use any a m o u n t of force in that process." Estate of Smith v. Marasco, 318 F.3d 497, 515 (3d Cir. 2 0 0 3 ). In order to show excessive force, the plaintiff must demonstrate that the d e f e n d a n ts ' seizure of the plaintiff was unreasonable. Brower v. County of Inyo, 489 U.S.

5 9 3 , 599 (1989). As established in Graham v. Connor, 490 U.S. 386 (1989), re a so n a b le n e ss is evaluated under a totality of the circumstances analysis, which asks w h e th e r "the officers' actions are `objectively reasonable' in light of the facts and c irc u m s ta n c es confronting them, without regard to their underlying intent or m o tiv a tio n s .'" Id. at 397. At least three factors should be included in the reasonableness c a lcu lu s: "the severity of the crime at issue, whether the suspect poses an immediate th re a t to the safety of the officers or others, and whether he is actively resisting arrest or a tte m p tin g to evade arrest by flight." Id. at 396. The Third Circuit added some additional c a n d id a te s for consideration in Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir. 1997): Other relevant factors include the possibility that the persons subject to the p o lic e action are themselves violent or dangerous, the duration of the a c tio n , whether the action takes place in the context of effecting an arrest, th e possibility that the suspect may be armed, and the number of persons w ith whom the police officers must contend at one time.

Id . at 822. Under this rubric, the officers' actions here, although they had fatal c o n s e q u e n c e s , were objectively reasonable.

The circumstance of Bornstad's arrest and demise was a confrontation between p o lic e officers and an imposing, intoxicated suspect.4 There is no dispute that Bornstad h im self quickly turned the encounter into a physical altercation. All three of the factors o u tlin e d in Graham weigh in favor of the officers. First, Bornstad was suspected of d o m e s tic violence that involved biting a child. This offense is serious. Singer v. Court of C o m m o n Pleas, Bucks County, 879 F.2d 1203, 1206 (3d Cir. 1989). Second, by swinging a t the officers and wrestling them to the ground, he posed an immediate threat to the s a f ety of the officers and himself. Third, there is no question that he resisted arrest. From th e time Bornstad answered the door, all of his responses and actions were intended to a v o id arrest.

The other relevant factors listed by the Sharrar Court also favor the appellees.

B o rn sta d was certainly violent and likely dangerous. The length of the action appears to h a v e been substantial­the police were summoned around 9:15pm and the time of death w a s pronounced at 11:35pm. The action took place entirely within the context of effecting a n arrest. Although no weapon was involved and the police essentially had to contend o n ly with Bornstad, the totality of the factors weighs in their favor. The principal factor th a t does not is the fact of injury. As the Court in Sharrar pointed out, "the fact that the p h ys ic a l force applied was of such an extent as to lead to injury is indeed a relevant factor to be considered as part of the totality." 128 F.3d at 822. However, as accurately noted by th e Seventh Circuit, "the mere fact that an injury occurred while an individual was in p o lic e custody is not sufficient to avoid summary judgment­a plaintiff must identify the s p e c ific unreasonable conduct that caused his or her injuries." Abdullahi v. City of M a d is o n , 423 F.3d 763, 770-71 (7th Cir. 2005) (emphasis added). Kenneth Bornstad id e n tif ie s the cause of the injury as being the officers' inappropriate actions in kneeling o n Bornstad, but offers only Barlow's later and enhanced testimony, and Angela Eckert's te stim o n y as to Barlow's excited utterance, as evidence that this occurred.

In evaluating the totality of the circumstances, courts must also be mindful of the S u p r e m e Court's admonition that "[t]he calculus of reasonableness must embody a llo w a n c e for the fact that police officers are often forced to make split-second ju d g m e n ts ­ in circumstances that are tense, uncertain, and rapidly evolving­about the a m o u n t of force that is necessary in a particular situation." Graham, 490 U.S. at 396-97.

T h e undisputed circumstances here were that the officers were confronted with an u n c o o p e ra tiv e , intoxicated, and physically imposing individual suspected of domestic v io le n c e on a dark, rainy evening. The District Court properly considered the scene from th e perspective of an officer responding to the dispatch to Bornstad's home.

In Wagner v. Bay City, Texas, 227 F.3d 316 (5th Cir. 2000), the Fifth Circuit was c o n f ro n te d with a factually similar situation. Gutierrez, the decedent, had caused a d istu rba n ce at a fast food restaurant and physically resisted arrest when two officers a tte m p te d to restrain him. Id. at 318-19. The officers removed him from the restaurant a n d placed him face down on the pavement, where they handcuffed him. During that p r o c e s s , the officers used pepper spray and one of the officers put his shin across G u tie rre z 's back. A late-arriving officer reported that he saw two officers on top of G u tie rre z . After taking Gutierrez to jail, the officers noticed that he was not breathing and b e g a n CPR. They took him to the hospital where he later died. Id. The trial court denied s u m m a ry judgment for the two officers involved in the altercation in the restaurant.

The Fifth Circuit confirmed that "the district court correctly concluded that W a g n e r made a plausible argument that Gutierrez's injury directly and exclusively resu lted from his altercation with defendants Hadash and Mirelez. A reasonable jury co u ld conclude that the use of pepper spray, combined with the fact that the officers rep ea tedly pushed him face-first to the ground, could have resulted in Gutierrez's s to p p in g breathing." Id. at 320. However, the Fifth Circuit reversed the denial of su m m a ry judgment on the grounds that the officers' conduct was objectively reasonable b ec au se "[t]he officers' actions were all consistent with the idea that they merely were tryin g to restrain a violent individual." Id. at 324. The same rationale applies here.

Although "officers­indeed, any reasonable person­should [know] that squeezing th e breath from a compliant, prone, and handcuffed individual despite his pleas for air in v o lv e s a degree of force that is greater than reasonable," see Drummond v. City of A n a h e im , 343 F.3d 1052, 1059 (9th Cir. 2003), and Champion v. Outlook Nashville, Inc., 3 8 0 F.3d 893, 903 (6th Cir. 2004), it is not so clearly unreasonable to exert severe force o n an individual who continues to violently resist arrest. Barlow's deposition testimony in d ic a te s that Bornstad continued to struggle with police even after he had been down on th e ground and handcuffed. Moreover, she testified that she "saw them get on the back of h im with the knee way because he had already fought with them. And I guess that would b e irregular for a police officer to do. So they put his arms behind his back to handcuff h im , and he flung again." (emphasis added). Given the resistance that Bornstad mounted th ro u g h o u t his arrest, it is impossible to compare, as the appellant wishes, the c irc u m s ta n c es of his arrest with those in Drummond or Champion, in which the plaintiffs b e c am e compliant after they had been handcuffed and shackled. The officers were not re q u ire d to treat the still-resisting Bornstad in the same manner as was required of the o ff icers in either Drummond or Champion.

Furthermore, neither the decision to roll Bornstad over and handcuff him behind h is back or the decision to bind his legs constituted objectively unreasonable force, and K e n n e th Bornstad does not argue to the contrary. The struggle had escalated to the point w h e re such restraints were appropriate, and Bornstad himself was the cause of the esc alatio n . In Estate of Phillips v. City of Milwaukee, 123 F.3d 586 (7th Cir. 1997), the S e v e n th Circuit addressed a situation in which the decedent actively resisted any attempts to subdue him. Id. at 593. The Court held that it was reasonable to maneuver a resisting in d iv id u a l into a prone position and to restrain his legs, "given the peril posed by his c o n tin u e d kicking." Id. Indeed, the Court noted that this response was appropriate in light o f the fact that "the struggle escalated, but the uncontroverted testimony is that Mr.

P h illip s ' actions caused the escalation." Id. at 592. In a similar fashion, the u n c o n tro v e rte d testimony here is that Bornstad initiated the physical encounter and p ro m p ted a continued physical response by the officers by failing to submit to their a u th o rity. See, e.g., United States v. Montoya de Hernandez, 473 U.S. 531, 542 (1985) (" A u th o ritie s must be allowed `to graduate their response to the demands of any particular s itu a tio n .'" (quoting United States v. Place, 462 U.S. 696, 709 n.10 (1983))).

C o n s e q u e n tly, and in consideration of all of the factors outlined in Graham v. Connor and its progeny, we conclude that the force exerted upon Bornstad was objectively reasonable.

A c c o rd in g ly, the officers did not violate Bornstad's Fourth Amendment right to be free f ro m the use of excessive force.5 V.

The appellant also disputes the District Court's ruling on his claim for failure to re n d e r necessary medical assistance. In particular, Kenneth Bornstad argues that "when a s ta te officer's conduct places a person in peril in deliberate indifference to their safety, th a t conduct creates a constitutional claim." Penilla v. City of Huntington Park, 115 F.3d 5 The District Court also concluded that the officers were entitled to qualified im m u n ity. However, we need not reach this issue because we find no constitutional v io la tio n . Correspondingly, there is no need for immunity analysis. See Saucier v. Katz, 5 3 3 U.S. 194 , 201 (2001) (explaining that the initial inquiry in qualified immunity is: " T a k e n in the light most favorable to the party asserting the injury, do the facts alleged sh o w the officer's conduct violated a constitutional right?"); Bennett v. Murphy, 274 F.3d 1 3 3 , 136 (3d Cir. 2002) ("If the plaintiff fails to make out a constitutional violation, the q u a lif ie d immunity inquiry is at an end....").

7 0 7 , 709 (9th Cir. 1997). Kenneth Bornstad does not present any additional evidence in s u p p o rt of this claim, except to note Barlow's statement that the officers were "watching K e ith die." This proffer is in stark contrast to that made in Penilla: The officers in this case allegedly took affirmative actions that significantly in c re a se d the risk facing Penilla: they cancelled the 911 call to the p a ra m e d ics ; they dragged Penilla from his porch, where he was in public v iew , into an empty house; they then locked the door and left him there a lo n e . And they allegedly did so after they had examined him and found h im to be in serious medical need.

Id . at 710. While there is no requirement that the appellant present evidence of the caliber p re se n te d in Penilla, Kenneth Bornstad has not met his burden to supply sufficient e v id e n c e that a jury could find in his favor as to this claim. See Olson, 101 F.3d at 951.6 V I.

In Monell v. Department of Social Services of City of New York, 436 U.S. 658 (1 9 7 8 ), the Supreme Court explained that "[o]ur analysis of the legislative history of the C iv i l Rights Act of 1871 compels the conclusion that Congress did intend municipalities a n d other local government units to be included among those persons to whom § 1983 a p p lie s." Id. at 690. Accordingly, Kenneth Bornstad argues that the District Court im p ro p e rly granted summary judgment in favor of the townships on his claim that the to w n s h ip s failed to train the officers in preventing and avoiding compression asphyxia, th e re b y displaying a deliberate indifference to the constitutional rights of their citizenry.

A s a preliminary matter, "[a] finding of municipal liability does not depend automatically o r necessarily on the liability of any police officer." Fagan v. City of Vineland, 22 F.3d 1 2 8 3 , 1292 (3d Cir. 1994). "However, for there to be municipal liability, there still must b e a violation of the plaintiff's constitutional rights." Brown v. Comm., Dep't of Health E m e rg e n c y Med. Servs. Training Inst., 318 F.3d 473, 482 (3d Cir. 2003). Accordingly, as w e have found that no violation of Bornstad's rights occurred here, we find no basis for m u n ic ip a l liability. The District Court properly granted summary judgment in favor of the to w n s h ip s .

VII.

T h e District Court's grant of summary judgment in favor of the defendants will be a f f irm e d . Although the District Court does not seem to have followed precisely the re q u ire m e n t that it evaluate all of the evidence in favor of the plaintiff, a de novo review o f the evidence presented reveals that the officers' actions were objectively reasonable in lig h t of the situation they encountered. The District Court's grant of summary judgment to th e townships on the municipal liability claims was likewise proper because the plaintiff f a ile d to come forward with anything more than bald assertions regarding a direct causal lin k between a township policy and the alleged constitutional violation. Accordingly, we w ill affirm the District Court's judgment.

* The Honorable Joseph E. Irenas, Senior District Judge for the District of New Jersey, s ittin g by designation.

1 Kenneth Bornstad also sought damages for wrongful death under 42 PA. CONS. STAT. § § 8301-8302, but does not appeal the dismissal of that claim.

4 The autopsy report noted that "[t]he body is that of a large, muscular, robust adult m a le ... [t]he body length approximates 6 feet 1 inch and the weight is estimated at about

2 3 0 pounds."

6 It should also be noted that the District Court stated, in an alternative holding with r e sp e c t to the medical assistance claim, that because the protections of the Due Process C la u se of the Fourteenth Amendment only apply after the initial seizure is complete and th e individual is in custody, Bornstad did not enjoy those protections at the time of his m ed ical distress. The Court was probably incorrect in its assertion that "Plaintiff appears to concede that Bornstad was not in the custody of the Defendant officers prior to his d e a th ." Bornstad, 2005 WL 2212359, at *19. However, as this holding was an alternative to the Court's ruling that the claim should be dismissed because "there is no evidence that th e Defendant officers exhibited deliberate indifference to a serious medical need of B o rn s ta d ," see id. at *20, there is no need to correct the District Court's misinterpretation o f the plaintiff's argument.