IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-40402
Summary Calendar
AARON HEITMAN,
Plaintiff-Appellant,
versus
RICK EDWARDS; RICHARD
CARROLL; JON MCCARTY;
GOVERNING BOARD OF
CITY OF ALLEN, TEXAS,
Defendants,
RICK EDWARDS; RICHARD
CARROLL; GOVERNING BOARD
OF CITY OF ALLEN, TEXAS,
Defendants -Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:95-CV-141
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January 20, 1998
Before JOLLY, BENAVIDES and PARKER, Circuit Judges.
PER CURIAM:*
Aaron Heitman has appealed from the district court’s order
granting the defendants’ motion for summary judgment on the issue
whether defendant Edwards arrested him without probable cause.
Heitman failed to come forth with admissible material evidence
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 97-40402
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controverting the evidence presented by the defendants showing
that Officer Edwards had probable cause to believe that Heitman
had provided the officer with a false identity and that Heitman
had witnessed a crime. Therefore, the district court did not err
in granting the defendants’ summary-judgment motion on the
probable-cause issue. Heitman’s argument that the district court
erred in denying his motion for reconsideration of the issue is
without merit because Heitman did not present any additional
admissible evidence that warranted a reversal of the initial
determination.
Heitman argues that the district court erred in instructing
the jury that it had determined that Edwards had probable cause
to make the arrest and that the jury was not to determine that
issue. Because Heitman did not object to the instruction in the
district court, the issue is subject to plain-error review only.
Because we have found that the district court properly granted
summary judgment on the probable-cause issue, it did not plainly
err in instructing the jury that it was not within its province
to determine such issue.
Heitman argues that the district court erred in giving the
defendants’ requested instruction on a defense which Heitman
contends was initially raised at the jury-charge conference.
In charging the jury on the defense of qualified immunity which
had been raised by the defendants in their pleadings, the
district court properly instructed the jury on the law governing
No. 97-40402
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an officer’s use of force in the course of making an arrest. The
instruction was necessary to assist the jury in determining
whether the officer’s action was objectively reasonable under the
law. See Pierce v. Smith, 117 F.3d 866, 871-72 (5th Cir. 1997).
Heitman argues that the district court abused its discretion
in refusing to allow him to introduce a tape recording of a 911
call made to the police complaining about the conduct of Officer
Edwards. He argued that this evidence would have shown that the
supervisory officials had knowledge of Edwards’ misconduct. This
issue was rendered moot based on Heitman’s failure to show that
Edwards’ conduct constituted a violation of his constitutional
rights.
Heitman argues that the district court erred in not allowing
him to introduce evidence of other complaints of the use of
excessive force by Edwards. Heitman was permitted to introduce
evidence of other complaints through the testimony of two
witnesses. Heitman cannot complain about the district court’s
exclusion of other evidence of complaints because Heitman failed
to comply with the district court’s known requirements for the
admission of such evidence.
Heitman has waived his argument that the district court
erred in instructing the jury that Officer Edwards had probable
cause to arrest one of the witnesses who testified that Edwards
had employed excessive force against her in the course of her
arrest. Heitman failed to provide this court with any record
No. 97-40402
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citations to support this argument or to show that it was raised
in the district court. Forsyth v. Barr, 19 F.3d 1527, 1537 (5th
Cir. 1994).
Heitman argues that the district court erred in awarding the
defendants court costs as the prevailing parties in the case
because they engaged in acts of misconduct during the course of
the district court proceedings. Based on the record presented,
the district court did not abuse its discretion in awarding the
defendants the court costs. See Salley v. E.I. DuPont de Nemours
& Co., 966 F.2d 1011, 1017 (5th Cir. 1992).
The defendants’ motion to strike volume 5 of the appeal
record is GRANTED. United States v. Flores, 887 F.2d 543, 546
(5th Cir. 1989).
AFFIRMED.