Snyder v. Trepagnier

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.

A.

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

battery.

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?

Yes X No

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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