Stroik v. Ponseti ( 1994 )

  •                     UNITED STATES COURT OF APPEALS
                            FOR THE FIFTH CIRCUIT
                                  No. 92-3591
         WILBUR PONSETI and
          Appeal from the United States District Court for the
                      Eastern District of Louisiana
                             (September 28, 1994)
    Before GARWOOD and BARKSDALE, Circuit Judges and SHAW,* District
    GARWOOD, Circuit Judge:
         Defendant-appellant Wilbur Ponseti (Ponseti) appeals the trial
    court's denial of his motion for judgment as a matter of law in
    this suit under 42 U.S.C. § 1983 alleging Ponseti's excessive use
    of force.    Because we find that Ponseti's use of deadly force was
         Chief Judge of the Western District of Louisiana, sitting by
    objectively reasonable, we conclude that the trial court erred in
    denying Ponseti's motion.     Accordingly, we reverse.
                         Facts and Proceedings Below
         On the evening of October 27, 1989, Ponseti, a police officer
    with the New Orleans, Louisiana, Police Department, was on patrol
    in a police car in the second district of the City of New Orleans
    with his partner, Officer Kevin Balancier (Balancier).                 At or
    around 10:30 p.m., the officers heard a police radio broadcast
    concerning a series of armed robberies that had just occurred in
    their patrol area.    The radio message indicated that four persons
    were suspected of committing the robberies, that the suspects were
    driving a blue van, and that two of the suspects were black and two
    were white. The broadcast further indicated that the suspects were
         Upon hearing another radio message that the van had been
    spotted on St. Charles Street, the officers attempted to intercept
    the suspects.      When they arrived at St. Charles, Ponseti and
    Balancier observed two police cars following a blue van at high
    speed.   The officers joined in pursuit.          The chase continued for
    several blocks until the van struck a pedestrian.           The driver then
    turned   into   oncoming   traffic,       proceeded   up   the   street,   and
    attempted a left turn, but instead lost control of the vehicle and
    ran into a curb.
         As the van came to a stop, a black male opened the sliding,
    passenger-side door and fled on foot.         Balancier parked the police
    car in the middle of the intersection and, running past the open
    sliding door of the van, chased the suspect down the street.               At
    the same time that Balancier ran past the van, Ponseti was running
    toward the van.     As Ponseti came around the back of the van to its
    passenger side, he observed a second black male and a white female
    exiting the van through the sliding door.             The black male was
    behind the white female with his left hand around her waist and was
    holding a handgun in his right hand.        Ponseti immediately fired his
    gun seven to nine times, killing the black male and wounding the
    white female.1
         The decedent was later identified as Paul Johnson.                  The
    injured female was Monica Stroik. She and her brother, Christopher
    Stroik, had been carjacked by the two black males and then taken as
    hostages by Johnson and the other man as they committed three armed
    robberies of pedestrians.
         When    Ponseti    attempted   to     handcuff   Monica   Stroik,   she
    responded that she was innocent and that she was wounded.           It was
    only then that the officers learned that the Stroiks had been
    carjacked and taken as hostages by the two men.
         On October 17, 1990, Monica Stroik filed suit pursuant to 42
    U.S.C.   §   1983      against   Ponseti    and   Warren   Woodfork,     the
    Superintendent of the New Orleans Police Department. In accordance
    with 28 U.S.C. § 636(c), the parties consented to proceed before
    the magistrate judge assigned to the case.            On May 4, 1992, the
    case was tried before a six-person jury. Both Ponseti and Woodfork
    moved for judgment as a matter of law; the court granted the motion
    for Woodfork but denied Ponseti's motion.         On May 7, 1992, the jury
         The woman was struck once in the right side of her abdomen.
    returned a verdict against Ponseti, awarding Stroik $600,000 in
    actual damages,    and   finding   that    Stroik   was   not   entitled    to
    punitive damages against Ponseti.         On May 8, 1992, the magistrate
    judge entered judgment on the verdict for Stroik and against
         Ponseti then timely filed a motion for judgment as a matter of
    law or, in the alternative, a new trial.            Ponseti's motion was
    based on his assertion that his conduct was objectively reasonable
    under the circumstances and, thus, as a matter of law, not an
    excessive use of force.      The magistrate judge denied Ponseti's
    motion.    Ponseti now brings this appeal.
         In an appeal from the denial of a judgment as a matter of law,
    our review of the district court proceedings is limited.2                  See
    Boeing Co. v. Shipman, 
    411 F.2d 365
    , 374 (5th Cir. 1969) (en banc).
    To reverse the denial of a judgment as a matter of law, "the facts
    and inferences [must] point so strongly and overwhelmingly in favor
    of one party that the Court believes that reasonable men could not
    arrive at a contrary verdict."          Id.   We review the record as a
    whole, not just the evidence favorable to the verdict, but in the
    light and with all reasonable inferences most favorable to the
    verdict.    Id.   A mere scintilla of evidence does not suffice to
    create a fact issue, rather there must be a conflict in substantial
    evidence.   Id. at 374-75.   It is for the jury to weigh conflicting
         Under the current Federal Rule of Civil Procedure 50, the
    terms "directed verdict" and "judgment notwithstanding the
    verdict" have been replaced by the single term "judgment as a
    matter of law."
    reasonable inferences and determine the credibility of witnesses.
    Id. at 375.         But a verdict may not rest on speculation and
    conjecture.    Nichols Const. Corp v. Cessna Aircraft Co., 
    808 F.2d 340
    , 346 (5th Cir. 1985).           However, if reasonable persons could
    disagree as to the verdict, a judgment as a matter of law is
    inappropriate, and we must affirm.             Boeing Co. at 374.
          The issue in this appeal is whether the magistrate judge erred
    in   concluding     that   there    was   a   jury    question    as   to   whether
    Ponseti's shooting constituted excessive force.
          A deadly force complaint under section 1983 is a federal
    constitutional claim, and is analyzed according to Fourth Amendment
    standards.    See Reese v. Anderson, 
    926 F.2d 494
    , 500 (5th Cir.
    1991).     "[A]ll claims that law enforcement officers have used
    excessive    forceSQdeadly     or    notSQin    the    course     of   an   arrest,
    investigatory stop, or other 'seizure' of a free citizen should be
    analyzed    under    the   Fourth    Amendment       and   its   'reasonableness'
    standard." Graham v. Connor, 
    109 S. Ct. 1865
    , 1871 (1989) (emphasis
    in original). In applying Graham, this Court has used a three-part
    test for section 1983 excessive force claims, requiring a plaintiff
    to show "(1) a significant injury,3 which (2) resulted directly and
    only from the use of force that was clearly excessive to the need;
    and the excessiveness of which was (3) objectively unreasonable."
         But see Harper v. Harris County, 
    21 F.3d 597
    , 600 (5th Cir.
    1994) (holding that the significant injury requirement of Johnson
    v. Morel, 
    876 F.2d 477
     (5th Cir. 1989), a case involving a Fourth
    Amendment violation, is no longer valid in the wake of Hudson v.
    112 S. Ct. 995
     (1992), in which the Supreme Court held
    that a showing of a significant injury was not required to prove
    an Eighth Amendment violation).
    Reese, 926 F.2d at 500 (citing Johnson v. Morel, 
    876 F.2d 477
    , 480
    (5th Cir. 1989) (en banc) (per curiam)).                    The burden of proof on
    each of these elements is, of course, on the plaintiff.
          In the case sub judice, there is no dispute that Stroik
    suffered a significant injury which resulted from Ponseti's use of
    force.    Thus, the only question is whether Ponseti's use of force
    was     "'objectively      reasonable'          in    light    of   the    facts    and
    circumstances confronting [him], without regard to [his] underlying
    intent or motivation."           Graham, 109 S.Ct. at 1872 (citing Scott v.
    United States, 
    98 S. Ct. 1717
    , 1723-1724 (1978), and Terry v. Ohio,
    88 S. Ct. 1868
    , 1879 (1968)).            In answering this question, we look
    at the totality of the circumstances, paying particular attention
    to "whether the suspect pose[d] an immediate threat to the safety
    of the officers or others, and whether he [was] actively resisting
    arrest."    Id. (citing Tennessee v. Garner, 
    105 S. Ct. 1694
    , 1699-
    1700 (1985)).
          When a suspect is fleeing and an officer has "probable cause
    to believe that the suspect poses a threat of serious physical
    harm,     either    to     the     officer       or    to     others,     it   is   not
    constitutionally unreasonable to prevent escape by using deadly
    force."     Garner, 105 S.Ct. at 1701.                  Indeed, "if the suspect
    threatens the officer with a weapon . . . deadly force may be used
    if necessary to prevent escape, and if, where feasible, some
    warning has been given."               Id.       Moreover, "[t]he calculus of
    reasonableness must embody allowance for the fact that police
    officers    are    often    forced     to    make     split-second      judgmentsSQin
    circumstances       that         are   tense,         uncertain,        and    rapidly
    evolvingSQabout   the   amount    of    force      that    is    necessary    in   a
    particular situation."      Graham, 109 S.Ct. at 1872.
         Although "'[t]he test of reasonableness under the Fourth
    Amendment is not capable of precise definition or mechanical
    application,'" id. at 1871 (quoting Bell v. Wolfish, 
    99 S. Ct. 1861
    1884 (1979)), our application of the Graham standard to the facts
    in Reese v. Anderson, 
    926 F.2d 494
     (5th Cir. 1991), is instructive
    as to its parameters in this Circuit.               In Reese, we held that a
    police officer was entitled to summary judgment in a section 1983
    action where   the    officer    shot       and   killed   a    robbery   suspect.
    Responding to a radio call for the robbery of a convenience store,
    the police officer in Reese spotted the suspects' car and began to
    give chase.    During the chase, which reached speeds of forty to
    sixty miles per hour, the suspects threw out of the car window what
    appeared to be parts of a cash register.                       The suspects' car
    eventually spun out of control and the police car pulled up along
    the passenger's side.       Kneeling behind his open car door, the
    police officer instructed the suspects to raise their hands. After
    initially complying, the suspect in the front passenger seat
    reached down below the seat with his left hand.                 The officer again
    commanded the suspects to raise their hands and again the suspect
    in the passenger seat raised and then lowered his hand.                After this
    happened several times, the officer, fearing for his safety, shot
    the suspect once in the head, killing him.            The officer later found
    that the suspect was, in fact, unarmed.              Id. at 500.
         In   analyzing   the   district        court's   denial      of   the   police
    officer's motion for summary judgment in Reese, we concluded that
    "[u]nder these circumstances, a reasonable officer could well fear
    for his safety and that of others nearby.           He could reasonably
    believe that [the suspect] had retrieved a gun and was about to
    shoot."    Id. at 501.   For this reason, we held that the "officer
    [was] justified in using deadly force to defend himself and others
    around him," id., and that the officer was entitled to summary
    judgment as a matter of law.
         In Smith v. Freeland, 
    954 F.2d 343
    , 347 (6th Cir. 1992), the
    Sixth   Circuit    followed   our   decision   in   Reese   in   analogous
    circumstances, also aptly pointing out:
         ". . . we must avoid substituting our personal notions of
         proper police procedure for the instantaneous decision of
         the officer at the scene.      We must never allow the
         theoretical, sanitized world of our imagination to
         replace the dangerous and complex world that policemen
         face every day. What constitutes "reasonable" action may
         seem quite different to someone facing a possible
         assailant than to someone analyzing the question at
         In the case sub judice, the essential facts are not in
    dispute.    When Ponseti and Balancier arrived at the scene of the
    shooting, all of the information they possessed indicated that
    there were both black and white suspects in the van, that they were
         Smith also observes:
         "Furthermore, the fact that Officer Schulcz's actions
         may have violated Springdale's policies regarding
         police use of force does not require a different
         result. Under § 1983, the issue is whether Officer
         Schulcz violated the Constitution, not whether he
         should be disciplined by the local police force. A
         city can certainly choose to hold its officers to a
         higher standard than that required by the Constitution
         without being subjected to increased liability under §
         1983." Id.
    Again, we agree.
    armed, and that they had all been involved in the robberies of
    pedestrians.     The van had just come to an abrupt stop after a high
    speed chase during which the van had struck a pedestrian.        One
    suspect had begun to flee on foot and two others were exiting the
    van.   Finally, the crucial fact in this case is that at the time
    Ponseti came around the rear of the van, he testified, and there is
    no evidence contradicting this testimony, that Johnson was pointing
    a gun at him.5    Hence, unlike the officer in Reese, Ponseti's life
    was actually in jeopardy when he shot.    Given these facts, Ponseti
    had "probable cause to believe that the suspect[s] pose[d] a threat
    of serious physical harm," Garner, 105 S.Ct. at 1701, to Ponseti,
    or to others if the suspects were allowed to flee.           Because
    Ponseti could have reasonably believed that the suspects posed an
    imminent, deadly threat, we conclude that he was justified in using
    deadly force.6
         The parties dispute whether Stroik and Johnson were standing
    or were on the ground as Ponseti rounded the back of the van;
    however, all direct evidence indicates that, whether standing or
    on the ground, Johnson was pointing his gun at Ponseti. There is
    no evidence from which a jury could conclude otherwise.
         Stroik contends that several factors militate against a
    finding that Ponseti's use of force was not excessive.
    Ultimately, Stroik's argument boils down to an assertion that the
    evidence supported a jury finding that "Ponseti was not in full
    control of his anger and that he impulsively abandoned his police
    training and shot the robbers, believing that Monica Stroik was
    also a robber." Appellee's Brief at 10. In support of her
    argument, she notes that Christopher Stroik testified that
    Ponseti seemed "enraged" after the shooting and that a pre-
    employment psychological profile indicated that Ponseti had "poor
    impulse control." Regardless of the merits of these claims,
    Stroik's argument fails because its focus is on Ponseti's
    subjective state of mind. In so doing, Stroik disregards the
    Court's instruction in Graham that we determine objectively the
    reasonableness of a police officer's use of force, "without
    regard to their underlying intent or motivation." Graham, 109
         We therefore conclude that the magistrate judge erred in
    denying   Ponseti's   motion   for   judgment   as   a   matter    of   law.
    Accordingly, the judgment below is
    S.Ct. at 1872.