REVISED, June 12, 1998
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT _______________
No. 96-30935 _______________
JAMES SNYDER,
Plaintiff-Appellee- Cross-Appellant,
VERSUS
SIDNEY TREPAGNIER, et al.,
Defendants-Appellees,
CITY OF NEW ORLEANS,
Defendant-Appellant- Cross-Appellee.
_________________________
Appeals from the United States District Court for the Eastern District of Louisiana _________________________
Before MAGILL,* SMITH, and DeMOSS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
The City of New Orleans (“the city”) appeals a judgment of
liability under 42 U.S.C. § 1983 for the shooting of James Snyder
by police officer Sidney Trepagnier. Snyder cross-appeals,
contending that the district court erred in submitting to the jury
* Circuit Judge of the United States Court of Appeals for the Eighth Circuit, sitting by designation. the question of Trepagnier's qualified immunity. We reverse the
judgment insofar as it imposes liability against the city but
affirm insofar as the judgment grants Trepagnier qualified
immunity. We affirm the refusal to find liability for assault and
battery.
I.
Snyder was shot in the back by Trepagnier while fleeing on
foot from police following a high-speed chase. Although the
precise facts surrounding the shooting are not apparent from the
briefs,2 this much is clear: Trepagnier was pursuing Snyder
2 Our review is complicated by the city's failure to include a statement of the facts in its brief. This omission violates FED. R. APP. P. 28(a)(4), which requires “a statement of the facts relevant to the issues presented for review, with appropriate references to the record,” and 5TH CIR. R. 28.3 (a)(2), which requires a statement of facts.
With appropriate references to the record, Snyder presents the following facts:
[Trepagnier] shot James Snyder in the back while Mr. Snyder was unarmed, stuck in the mud to his knees, and offering no resistance whatsoever. Mr. Snyder had only one arm, in which he was carrying sunglasses and two packs of cigarettes that were found on the ground next to him at the scene, so that he could not have been carrying a gun. No gun was ever found on the scene despite a thorough and systematic search by officers using a grid pattern. It was stipulated that Trepagnier ”in shooting James Snyder, intended to pull the trigger, and that this was not the result of negligence, inadvertedness, mistake, or accident.” Trepagnier caught appellee when he became stuck in the mud, straddled him as he laid [sic] down and placed a gun to Jim Snyder's head. Trepagnier yelled to Snyder's companion, Todd Taylor, to come back or he would shoot Snyder. Snyder told Taylor to keep running, he can't shoot me, I don't have a gun. Officer Trepagnier began screaming and pushing the gun in the side of his head, threatening to shoot Snyder, and eventually Taylor came back. Trepagnier had Snyder put his face in the mud, asking why he had run; Snyder answered that he was wanted in Pennsylvania. At that point he shot Snyder at close range in the back. Snyder asked him why he did that and Trepagnier said, “the swamp's a hell of a place to die, ain't it?”
(continued...)
2 through the swamps when the officer shot Snyder in the back,
paralyzing him from the waist down. The parties disagree over
whether Snyder had a gun. Trepagnier testified that he saw Snyder
wielding a small pistol as he raced through the swamps. Snyder
claims that he was unarmed and stuck in the mud when he was shot.
In any event, no gun was ever recovered from the scene, despite an
exhaustive search.
Snyder sued Trepagnier, Officer Joseph Valiente, and the city
(as well as the Mayor and Police Superintendent in their individual
and official capacities) under § 1983. Snyder also sued Trepagnier
for assault and battery under Louisiana law. The case was tried to
a jury. Before the verdict, the court dismissed Snyder's claims
against Valiente, the Mayor, and the Police Superintendent, leaving
Trepagnier and the city the only remaining defendants.
The jury rendered its verdict in the form of answers to
special interrogatories. It found that Trepagnier had violated
Snyder's constitutional rights but was protected by qualified
immunity. The jury also found that Trepagnier had not committed an
assault and battery. Even though the jury concluded that
Trepagnier had acted reasonably in shooting Snyder, it held the
city liable on the ground that the constitutional deprivation was
caused by a municipal custom or policy.
The jury did not specify the policy at fault, although
Snyder's expert witness had offered several customs and policies as
(...continued) (Emphasis and record references omitted.)
3 possibilities. Specifically, Snyder had alleged that the hiring
and screening policies of the New Orleans Police Department
(“NOPD”) were deficient; that the NOPD enforced a “code of silence”
that fostered a permissive attitude toward violence against
civilians; and that the NOPD failed to train officers in stress
management and did not put in place an “early warning system” that
would signal when stressed officers were about to crack. In its
post-verdict review of the sufficiency of the evidence, the
district court relied on the city's failure to enact a stress
management program for police officers as supporting liability
under § 1983.
The jury awarded Snyder $1,964,000SSthe amount of his past and
future medical expenses. Yet it awarded Snyder nothing for past
and future physical pain and suffering, nothing for past and future
mental pain and suffering, nothing for permanent physical
disability and loss of function, and nothing for loss of life's
pleasures.3
Both sides filed post-trial motions. The court denied the
city's motion to reconsider and reconcile the jury verdict by
entering judgment dismissing the city as a matter of law, orSSin
the alternativeSSto grant the city a new trial on both liability
and damages.4 The court then granted Snyder's motion for a new
3 These were all categories on the jury's list of special interrogatories. The jury filled in “$0" for each of these categories. 4 The court attempted to reconcile the verdict as follows: The city violated § 1983 by failing to enact a stress management program. This failure created a group of overstressed police officers, one of whom was Trepagnier. (continued...)
4 trial on damages. Acknowledging that damage awards can be
overturned only in “extreme and exceptional” circumstances, the
court concluded that such were present, remarking: “It is
inconceivable for a jury to find that an individual who has been
shot in the back, subjected to multiple operations, hospitalized
for several months and will be confined for the rest of his life to
a wheel chair endured no pain and suffering and permanent
disability.”
II.
The city contends that the evidence was insufficient to
support a finding of § 1983 liability under Monell v. New York City
Dept. of Soc. Servs., 436 U.S. 658 (1978).5 We may overturn a jury
verdict only if it is not supported by substantial evidence,
meaning “evidence of such quality and weight that reasonable and
fair-minded men in the exercise of impartial judgment might reach
different conclusions.” Boeing Co. v. Shipman, 411 F.2d 365, 374
(...continued) Accordingly, when Trepagnier shot Snyder, he was behaving reasonablySS“as an improperly trained, over-worked and overly stressed officer would be expected to act under those circumstances.” 5 Snyder suggests that the city waived this claim by failing to move for a directed verdict at the close of the evidence as required by FED. R. CIV. P. 50(b). Both sides agree that the city moved for “judgment on the pleadings” at the close of the evidence; the city says this was a motion for a directed verdict. In any event, “[T]his court has not required strict compliance with Rule 50(b) and has excused technical noncompliance where the purposes of the requirement have been satisfied . . . . These purposes are met when the court and the plaintiff are alerted to the grounds on which the defendant contends the evidence is insufficient prior to the submission of the case to the jury.” Greenwood v. Societe Francaise De, 111 F.3d 1239, 1244 (5th Cir.), cert. denied, 118 S. Ct. 558 (1997) . Snyder concedes that the city challenged the sufficiency of the evidence on “three specific grounds” prior to the submission of the case to the jury.
5 (5th Cir. 1969) (en banc), overruled on other grounds by Gautreaux
v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir. 1997) (en banc).
We accord all reasonable inferences to the nonmovant, and we
reverse only if no reasonable jury could have arrived at the
verdict. Right Weigh Scale Co. v. Eaton Corp., 998 F.2d 287, 289
(5th Cir. 1993).
A.
The Supreme Court has established two fundamental requirements
for holding a city liable under § 1983 for inadequate hiring and
training policies: culpability and causation. First, the municipal
policy must have been adopted with “deliberate indifference” to its
known or obvious consequences. Second, the municipality must be
the “moving force” behind the constitutional violation.
In Monell, the Court held that a local government may not be
held liable under respondeat superior for constitutional torts
committed by a municipal employee. Instead, “[I]t is when
execution of a government's policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said to
represent official policy, inflicts the injury that the government
as an entity is responsible under § 1983.” 436 U.S. at 694.
Monell set a high threshold for causation as well, requiring that
the plaintiff establish that the municipal policy be the “moving
force” behind the constitutional violation. Id.
The Court clarified the Monell requirements in City of Canton
v. Harris, 489 U.S. 378 (1989), a case arising under a liability
6 theory (failure to train) that Snyder presses here. The Court held
that, in limited circumstances, a municipality can be held liable
for a failure to train its police officers. Plaintiffs seeking to
win under this theory must first prove a direct causal link between
the municipal policy and the constitutional deprivation; they then
must establish that the city consciously enacted a policy
reflecting “deliberate indifference” to the constitutional rights
of its citizens. Id. at 389. The Court concluded:
We hold today that the inadequacy of police training may serve as the basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact. . . . Only where a failure to train reflects a “deliberate” or “conscious” choice by a municipalitySSa “policy” as defined by our prior casesSScan a city be liable for such a failure under § 1983.
Id. at 388-89.
The Court further clarified Monell in Board of County
Commissioners v. Brown, 117 S. Ct. 1382 (1997), another case
arising under a liability theory advanced in the instant caseSSthe
municipality's allegedly inadequate screening and hiring policies.
There, the Court held that the county was not liable for a
sheriff's decision to hire, without adequate screening, an officer
who later was accused of using excessive force. The Court noted
that the plaintiff had “not demonstrated that [the sheriff's]
decision reflected a conscious disregard for a high risk that [the
officer] would use excessive force in violation of [the
plaintiff's] federally protected right.” Id. at 1394.
Bryan County underscores the need for Monell plaintiffs to
establish both the causal link (“moving force”) and the city's
7 degree of culpability (“deliberate indifference” to federally
protected rights). These requirements must not be diluted, for
“[w]here a court fails to adhere to rigorous requirements of
culpability and causation, municipal liability collapses into
respondeat superior liability.” Id.
Accordingly, we have demanded a high standard of proof before
imposing Monell liability on a municipality. In Gonzalez v. Ysleta
Indep. Sch. Dist., 996 F.2d 745 (5th Cir. 1993), we held that a
school board did not act with deliberate indifference to the
constitutional rights of schoolchildren when it failed to remove
from the classroom a teacher accused of fondling students. We
noted that mere negligence fell short of the “deliberate
indifference” standard and that “[i]n order for municipal liability
to attach, plaintiffs must offer evidence of not simply a decision,
but a 'decision by the city itself to violate the Constitution.'”
Id. at 759 (quoting City of Canton, 489 U.S. at 494-96 (O'Connor,
J., concurring)).
Similarly, in Stokes v. Bullins, 844 F.2d 269 (5th Cir. 1988),
we held that a county that failed to request a National Crime
Information Center check for police applicants did not act with
deliberate indifference toward the rights of its citizensSSeven
though conducting a check would have disclosed that the applicant
(who later shot the plaintiff) had a history of fifteen arrests for
assault, armed robbery, and other misdeeds. We saluted the
efficiency of an NCIC check but shied away from anointing it as a
constitutional requirement. Id. at 275.
8 B.
In reviewing the sufficiency of the evidence, we examine the
three municipal policies offered at trial that might support a
finding of Monell liability. Applying Bryan County's “rigorous
requirements of culpability and causation,” 117 S. Ct. at 1394, we
conclude that the evidence is insufficient to uphold the jury
verdict.
1.
Snyder alleges that the city's police hiring policies were
deficient because candidates' backgrounds were inadequately
investigated. Most of Snyder's evidence came from James Ginger,
who was offered as an expert witness in the field of police
operations and administration. Ginger observed that the city
overlooked two blemishes on Trepagnier's application: He had
admitted to stealing a jacket and to having smoked marihuana over
a two-and-a-half-year period. Moreover, the city did not conduct
oral interviews but relied on written statements from Trepagnier's
friends and neighbors. Finally, Ginger charged that although the
city had a psychologist perform a “personality test” on Trepagnier,
the test form did not include room for the psychologist's narrative
interpretation, nor did it note Trepagnier's specific score,
because the tests were graded pass/fail. Ginger testified that
these omissions indicated that the city's screening policies fell
short of “national standards,” thus providing the basis for § 1983
liability.
9 This evidence is insufficient under Bryan County, where the
Court held that “[o]nly where adequate scrutiny of an applicant's
background would lead a reasonable policymaker to conclude that the
plainly obvious consequence of the decision to hire the applicant
would be the deprivation of a third party's federally protected
right can the official's failure to adequately scrutinize the
applicant's background constitute 'deliberate indifference.'” Id.
at 1392. The Court held that the county was not liable for a tort
committed by a police officer, even though the sheriff had hired
the officer despite a lengthy criminal record, including assault
and battery, resisting arrest, and public drunkenness. The Court
concluded that “[t]he connection between the background of the
particular applicant and the specific constitutional violation must
be strong.” Id.
Trepagnier had admitted to two nonviolent offenses: stealing
a jacket and smoking marihuana. On this evidence, Snyder's claim
that the city's screening policies were inadequate fails the Bryan
County test: that the plaintiff's injury be the “plainly obvious
consequence” of the hiring decision.6
2.
Snyder's next complaint is that the NOPD enforced a “code of
6 Ginger's argument that the city's psychological testing fell short of “national standards”SSthus violating § 1983SSwas rejected in Bryan County, 117 S. Ct. at 1394, in that Ginger seeks to “constitutionalize hiring requirements that States have themselves elected not to impose.” See also Stokes, 844 F.2d at 275 (refusing to designate an NCIC background check a constitutional requirement).
10 silence” that fostered a permissive attitude toward violence
against civilians. To bolster this allegation, he introduced
evidence concerning what he terms the “Pembrook incident.” In
1986, six years before Snyder's shooting, Trepagnier (while off-
duty) verbally abused and grabbed Herman Pembrook, who had just
been in a car accident involving Trepagnier's girlfriend. Other
officers, present at the accident site, restrained Trepagnier.
Pembrook filed a complaint with the Office of Municipal
Investigation (a city agency independent of the NOPD), but that
office dismissed the complaint, and Pembrook never filed criminal
charges.
Ginger testified that the fact Trepagnier would threaten and
intimidate a civilian in front of his fellow officers revealed the
existence of a code of silence.7 This was the only citizen
complaint ever filed against Trepagnier, who was hired in 1981.
The remaining evidence establishing the code of silence came
in the form of assorted policy papers and reports. It appears that
no one save Ginger was asked to interpret or discuss these
materials, many of which were excluded as hearsay.
7 Ginger concluded:
For someone to exhibit that kind of behavior in front of his supervisor is remarkably unusual in policing. . . . [T]hat requires the officer to believe that he can behave with violence towards citizens with impunity. In other words, for the officer to behave that way, he has to believe he can get away with it. . . . It indicates a culture that is protective of its officers. It indicates the existence of a very deeply-rooted code of silence . . . a code within the police department that, regardless what the behavior, one police officer does not report or testify against another police officer. . . . It exists in most police agencies, but that indicates that the code of silence in the New Orleans Police Department is operating to the level that officers will attempt to assault citizens in front of their supervisors.
11 Snyder relies on a single case to support premising § 1983
liability on a code of silence theory: Grandstaff v. City of
Borger, 767 F.2d 161 (5th Cir. 1985). There, we imposed municipal
liability for a policy of “prevalent recklessness” when a group of
police officers mistook a man for a fugitive, surrounded him, and
killed him. Grandstaff has not enjoyed wide application in this
Circuit. For example, we distinguished it in Coon v. Ledbetter,
780 F.2d 1158, 1161 (5th Cir. 1986), noting that “Grandstaff
affirmed a judgment against a Texas city on a highly peculiar set
of facts. . . . The Grandstaff panel emphasized the extraordinary
facts of the case, and its analysis can be applied only to equally
extreme factual situations.”8
The shooting of Snyder, who was fleeing police pursuit, hardly
rises to the level of the “extraordinary factual circumstances”
presented in GrandstaffSSparticularly given the absence of evidence
suggesting a culture of recklessness in the NOPD. In sum, the
evidence was insufficient to support Monell liability on a code-of-
silence theory.
3.
We now turn to Snyder's primary argument for Monell liability:
that the NOPD failed to train officers in stress management and
failed to adopt an “early warning system” that would signal when an
officer was about to “crack.” This appears to be the basis on
which the district court concluded that the verdict was supported
8 See also Stokes, 844 F.2d at 274 n.8 (refusing to apply Grandstaff).
12 by the evidence. The court noted:
Specifically, the evidence supported a conclusion that Officer Trepagnier was improperly trained, overworked, and stressed due to unconstitutional practices of the City which led directly to the constitutional depr[i]vation involved. Apparently, the jury felt the constitutional depr[i]vation was not due to intent or wanton disregard on Trepagnier's part but that he was improperly trained or overly stressed.
Evidence of Trepagnier's stress level came from two lay
sources. First was the testimony of Pembrook, who stated that a
sergeant excused Trepagnier's aggressive behavior by explaining
that Trepagnier worked long hours and was under considerable
stress. Second was what Snyder terms “an excessive number of
injuries to the dominant hand while effecting arrest.”
According to Ginger, Trepagnier's personnel file revealed an
unusually high number of injuries to his hand: five injuries over
a three-year period. Because officers are trained to strike with
their baton rather than their hand, a higher-than-average number of
hand injuries may indicate a quick temper. Ginger also testified
that an early-warning system would have caught Trepagnier's hand-
injury situation, highlighting the need for psychiatric counseling
before the officer exploded. Ginger did not claim that such a
system would have prevented Snyder's injury, but it would have
reduced the likelihood by making Trepagnier “a much better officer,
much more under control and much less likely to enter into the
Snyder shooting.”
In City of Canton, 489 U.S. 378, the Court articulated the
test for when Monell liability can result from inadequate training.
The opinion is worth quoting at length:
13 It may seem contrary to common sense to assert that a municipality will actually have a policy of not taking reasonable steps to train its employees. But it may happen that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need. . . .
In resolving the issue of a city's liability, the focus must be on adequacy of the training program in relation to the tasks the particular officers must perform. That a particular officer may be unsatisfactorily trained will not alone suffice to fasten liability on the city, for the officer's shortcomings may have resulted from factors other than a faulty training program. . . . Neither will it suffice to prove that an injury or accident could have been avoided if an officer had had better or more training, sufficient to equip him to avoid the particular injury-causing conduct.
Id. at 390-91 (footnote and citations omitted).
Moreover, we have held that proof of a single violent incident
ordinarily is insufficient to hold a municipality liable for
inadequate training. The plaintiff must demonstrate “at least a
pattern of similar incidents in which the citizens were injured
. . . to establish the official policy requisite to municipal
liability under section 1983.” Rodriguez v. Avita, 871 F.2d 552,
554-55 (5th Cir. 1989) (internal quotation and citation omitted).
Under City of Canton, 489 U.S. at 389, in order to prove the
city's deliberate indifference, Snyder must show that the failure
to train reflects a “deliberate” or “conscious” choice to endanger
constitutional rights.9 Ginger contended that the city had notice
9 The Canton Court gave an example of when Monell liability may attach from a failure to train: “For example, city policymakers know to a moral certainty that their police officers will be required to arrest fleeing felons. The city has armed its officers with firearms, in part to allow them to accomplish this (continued...)
14 of the dangerously high stress levels throughout the NOPD based on
the Pembrook incident in 1986 and Trepagnier's five hand injuries
over three years.
Even if we accept that this evidence proves Trepagnier was
dangerously stressed, there was no probative evidence concerning
the stress level in the NOPD as a whole. There was no evidence of
a pattern or practice of constitutional violations committed by
overstressed New Orleans police officers. There was no evidence
showing that the city was aware of the supposedly high stress
levels in the NOPD or knew that the absence of a stress management
program was likely to endanger the constitutional rights of its
citizens. In short, the totality of the evidence does not even
approach the City of Canton standard: that the inadequacy be “so
obvious” and “so likely to result in the violation of
constitutional rights,” 489 U.S. at 390, that the city can be said
to have been deliberately indifferent.
Furthermore, we have emphasized that, when seeking to prove a
municipality's malevolent motive, plaintiffs must introduce more
evidence than merely the opinion of an expert witness. In Stokes
v. Bullins, 844 F.2d 269 (5th Cir. 1988), the district court relied
primarily on the testimony of a single expert witness in holding
that the municipality violated § 1983. We disagreed, remarking
that “an expert's opinion should not be alone sufficient to
(...continued) task. Thus, the need to train officers in the constitutional limitations on the use of deadly force, see Tennessee v. Garner, 489 U.S. 1 (1985), can be said to be 'so obvious,' that failure to do so could properly be characterized as 'deliberate indifference' to constitutional rights.” 489 U.S. at 390 n.10.
15 establish constitutional 'fault' by a municipality in a case of
alleged omissions, where no facts support the inference that the
town's motives were contrary to constitutional standards.” Id. at
275. Ginger's testimony that New Orleans failed to meet “national
standards” was unsupported by any facts establishing the city's
purportedly bad motive.
Proof of “moving force” causation was similarly absent. The
evidence did not establish even a remote link between the city's
failure to enact a stress management program and Snyder's injury,
so it fell far short of meeting the “rigorous” and “stringent”
causation requirements demanded in Bryan County. Moreover, under
Ginger's theory, any violent act by a police officer could be
“caused” by stress, which in turn would be “caused” by the absence
of a stress management program. Were we to adopt this line of
reasoning, a city might be liable under § 1983 any time an officer
acted in a way that could be characterized as resulting from
stress. We reject this as a constitutional requirement.
There was insufficient evidence to support the imposition of
§ 1983 liability under Ginger's stress management theory. There
was no evidence of deliberate indifference to constitutional
rights. Nor was there evidence supporting a causal link between
the absence of a stress management program and Snyder's injury. No
reasonable jury could have concluded otherwise.
III.
16 Snyder argues that the district court erred in submitting the
question of Trepagnier's qualified immunity to the jury. We
disagree. While qualified immunity “ordinarily should be decided
by the court long before trial,” Hunter v. Bryant, 502 U.S. 224,
228 (1991), if the issue is not decided until trial, the defense is
not waived but goes to the jury, which “must determine the
objective legal reasonableness of [the] officer's conduct by
construing the facts in dispute.” Melear v. Spears, 862 F.2d 1177,
1184 (5th Cir. 1989) (footnote omitted). So, “if . . . there
remain disputed issues of material fact relative to immunity, the
jury, properly instructed, may decide the question.” Presley v.
City of Benbrook, 4 F.3d 405, 410 (5th Cir. 1993).10
Here, important factual questions remained for trial.
Specifically, the jury needed to determine what sequence of events
occurred, and, in particular, whether Snyder had a gunSSor, if he
did not actually have a gun, whether Trepagnier reasonably believed
he did. Accordingly, there is no doubt that the district court
properly decided to submit the issue of qualified immunity to the
jury.
B.
A related question is whether the issues of liability and
qualified immunity should have been fashioned as one issue or, as
the district court submitted them, as two issues. The submission
10 See Mangieri v. Clifton, 29 F.3d 1012, 1016 (5th Cir. 1994); Lampkin v. City of Nacogdoches, 7 F.3d 430, 435 (5th Cir. 1993).
17 as two separate issues results in the dispute whether the jury's
answers are irreconcilable.
The jury decided both that Trepagnier used excessive force,
thereby depriving Snyder of his constitutional rights, and that
Trepagnier had a reasonable belief that his actions would not
violate Snyder's constitutional rights. On the basis of these
answers, the district court granted Trepagnier qualified immunity.
If, however, a finding of excessive force is tantamount to a
finding of no objective reasonableness, the answers to the two
interrogatories would be hopelessly in conflict, requiring a new
trial with, perhaps, a different charge.
In reviewing jury answers to special verdicts, we must make a
“concerted effort to reconcile apparent inconsistencies . . . if at
all possible.” Alverez v. J. Ray McDermott & Co., 674 F.2d 1037,
1040 (5th Cir. 1982). We must ask whether “the answers may fairly
be said to represent a logical and probable decision on the
relevant issues as submitted, even though the form of the issue or
alternative selective answers prescribed by the judge may have been
the likely cause of the difficulty and largely produced the
apparent conflict.” Griffin v. Matherne, 471 F.2d 911, 915 (5th
Cir. 1973). Only if there is no view of the case that will make
the jury's answers consistent may we set aside its decision. Id.
There is no inherent conflict between a finding of excessive
force and a finding of qualified immunity. In Brown v. Glossip,
878 F.2d 871, 873-74 (5th Cir. 1989), we squarely held “that
qualified immunity is available as a defense to monetary liability
18 for an objectively unreasonable use of excessive force under the
Fourth Amendment.”
There are two components to the qualified immunity inquiry:
“'[(1)] clearly established law and [(2)] the information the . . .
officers possessed.'” Hunter, 502 U.S. at 227 (quoting Anderson v.
Creighton, 483 U.S. 635, 641 (1987)). This was cogently explained
by Judge Higginbotham in Melear, 862 F.2d at 1187-88 (Higginbotham,
J., concurring): “[I]t is possible for the jury to find that,
although the actual circumstances of the search did not justify the
officer's behavior, the circumstances that appeared to the officer
would have justified a search. That is, the officer could make a
constitutionally reasonable judgment based upon a factual
misperception.” Id. at 1188. “[I]t might be possible for the jury
to resolve factual ambiguities so as to conclude that a
constitutional violation took place, even though it is not possible
for the jury to resolve factual ambiguities so as to conclude that
the violation was the product of an objectively unreasonable
mistake.” Id.
This is what happened in Presley, where the jury determined
that although the officers committed a constitutional violation,
they were entitled to qualified immunity. See Presley, 4 F.3d at
407. Specifically, the jury, in answer to the first question, said
the officers' entry of plaintiff's residence violated the Fourth
Amendment. This answer was in plaintiff's favor, but the answer to
the second was not, for the jury answered “yes” to the question
whether a reasonable officer possessing knowledge of clearly
19 established law and the information known by the officers at the
time, could have believed that the entry of plaintiff's residence
was lawful. The panel concluded that the two answers “are not
inconsistent,” because “an officer may make mistakes that infringe
constitutional rights and yet not be held liable where, given
unclear law or uncertain circumstances, it cannot be said that she
knew she was violating a person's rights.” Id. at 409 (citing
Anderson, 483 U.S. at 642).11
C.
With the law thus explained, we proceed to discharge our duty
to make a “concerted effort to reconcile apparent inconsistencies
[in the jury's answers] . . . if at all possible.” Alverez,
674 F.2d at 1040. The jury's answer that Trepagnier used excessive
force apparently was based on its conclusion that Snyder did not
actually have a gun. The jury's additional answer that “Trepagnier
had a reasonable belief that his actions would not violate
[Snyder's] constitutional rights” must have been based on a finding
that Trepagnier reasonably believed Snyder had a gun so that, given
the “uncertain facts” Trepagnier possessed, “it cannot be said that
[he] knew [he] was violating a person's rights.” Presley, 4 F.3d
at 409.
11 Some other circuits disagree and take the position that a finding of excessive force precludes a finding of qualified immunity. See Alexander v. County of Los Angeles, 64 F.3d 1315, 1322 (9th Cir. 1995); Scott v. Henrich, 39 F.3d 912, 914 (9th Cir. 1994); Hunter v. District of Columbia, 943 F.2d 69, 77 (D.C. Cir. 1991) (citing cases, and citing Brown as “but see”); Street v. Parham, 929 F.2d 537, 540 (10th Cir. 1991).
20 There was sufficient evidence from which the jury could have
found what it did in answer to the two interrogatories at issue.
Accordingly, there is no internal conflict in the verdict, and the
district court properly granted qualified immunity to Trepagnier.12
IV.
Snyder challenges several evidentiary rulings. We review for
abuse of discretion. United States v. Torres, 114 F.3d 520, 526
(5th Cir.), cert. denied, 118 S. Ct. 316 (1997). Snyder objects to
the admission of evidence concerning his criminal history and to
the exclusion of several reports purportedly documenting the NOPD's
failure to comply with national standards of police training and
administration. The evidence of Snyder's criminal conduct in the
period before the shooting was admitted as probative of
Trepagnier's state of mind and the reasonableness of the officer's
behavior, and we find no abuse of discretion. Our holding
regarding the city's liability renders moot the question of the
city's adherence to national standards.
V.
Accordingly, we REVERSE the portion of the judgment holding
12 Nor do we find that the court erred in dismissing Snyder's claim against Valiente. Under Hale v. Townley, 45 F.3d 914 (5th Cir. 1995), Valiente could be held liable only if Snyder proved that Valiente was present at the scene of the shooting but did not take reasonable measures to prevent Trepagnier from using excessive force. In light of Snyder's admission that he did not know whether Valiente was in the area when he was shot, and the absence of probative evidence suggesting otherwise, the district court did not abuse its discretion in dismissing Valiente.
21 the city liable under § 1983 and RENDER judgment for the city. We
AFFIRM the portion of the judgment granting Trepagnier qualified
immunity and AFFIRM the refusal to find liability for assault and
ENDRECORD
22 DeMOSS, Circuit Judge, dissenting in part:
I concur fully in the foregoing opinion as to Parts I, II, and
IV. I cannot concur in Parts III or V. I write to set forth the
reasons for my dissent.
As the majority opinion indicates, there was a critical
factual issue in this case: whether Snyder had a gun and pointed
it at Trapagnier before Trapagnier shot Snyder in the back.
Regrettably, the jury was not posed that specific question; if it
had been given that question the resulting answer would have
resolved the ambiguity and inherent conflict in the jury’s other
findings. Since the majority opinion does not set forth the
specific interrogatories that the jury answered, I do so in a
footnote.13
I am in complete and fundamental disagreement with the
13 1. Do you find that Officer Sidney Trepagnier deprived James Snyder’s [sic] of his constitutional rights by using excessive force in arresting him?
Yes X No
If your answer to question 1 is "yes," continue on to the remaining questions. If your answer to question 1 is "no" then sign and date this form and return to the courtroom.
2. Do you find that Officer Sidney Trepagnier had a reasonable belief that his actions would not violate James Synder’s [sic] constitutional rights?
3. Do you find that the constitutional deprivation was caused by a governmental custom, policy, practice or decision of the City of New Orleans?
Yes X No majority’s conclusion that there is no inherent conflict between a
finding of excessive force (jury interrogatory no. 1) and a finding
of qualified immunity (assumptively jury interrogatory no. 2). A
finding that Trepagnier used excessive force in arresting Snyder
necessarily involves a determination that the force used by
Trepagnier (shooting Snyder in the back at a range of 6 to 10
inches) was "objectively unreasonable." However, absent some
lawful justification, no reasonable police officer could reasonably
believe that shooting a suspect in the back from a distance of 6 to
10 inches would not violate that individual’s constitutional
rights. In this case, the jury’s answer to interrogatory no. 2
necessarily means that the jury found that Trepagnier reasonably
believed that his actions were "objectively reasonable," a finding
which is in direct conflict with the opposite finding in
interrogatory no. 1. As the Tenth Circuit so cogently put it in
Street v. Parham, 929 F.2d 537, 540 (10th Cir. 1991):
No officer could reasonably believe that the use of unreasonable force did not violate clearly established law. Once the jury concluded that, even under all the circum-stances, excessive force had been used, the inquiry was over. This is one of the rare instances where the determination of liability and the availability of qualified immunity depend on the same findings. The qualified immunity question was answered as part of the jury’s consideration of the excessive force claim. See Dixon v. Richer, 922 F.2d 1456, 1463 (10th Cir. 1991).
I would additionally point out that interrogatory no. 2 is
defective because it asks whether Trepagnier had a "reasonable
belief," and not whether a "reasonable officer" would believe that
his actions would violate Snyder’s constitutional rights. The
24 Supreme Court has made clear that the determination as to the
reasonableness of the officer’s use of force must be based on an
objective and not subjective determination. Graham v. Connor, 490
U.S. 386, 397 (1989).
Consequently, I believe the proper disposition of this case is
to reverse the trial court’s judgment granting Trepagnier the
benefit of qualified immunity and remand the case for a retrial of
Snyder’s claims against Trepagnier. Upon retrial, the trial court
should, in my view, require the jury to make the factual
determination of whether or not Snyder had a gun and pointed it at
Trepagnier, or structure the interrogatories in a manner that
requires the jury to find that the force used by Trepagnier was
either "objectively unreasonable" or "objectively reasonable" under
all the circumstances.
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