IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-30695
Summary Calendar
_____________________
OTHA THOMAS,
Plaintiff-Appellant,
versus
CITY OF MONROE, ET AL.,
Defendants,
CITY OF MONROE; GUTIERREZ, Police Officer;
B. POWELL; E. THOMPSON,
Defendants-Appellees.
_______________________________________________________
Appeal from the United States District Court for
the Western District of Louisiana
(94-CV-1072)
_______________________________________________________
August 19, 1998
Before REAVLEY, HIGGINBOTHAM and JONES, Circuit Judges.
PER CURIAM:*
Plaintiff Otha Thomas filed a lawsuit alleging excessive
police force in violation of 42 U.S.C. § 1983, the Fourth and
Fifteenth Amendments, and state law negligence. The jury found
in favor of the defendants, the City of Monroe and three city
*
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this opinion should not be published and is not precedent except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.
police officers. Thomas appealed. For the reasons stated below,
we affirm.
Background
On June 28, 1993, Otha Thomas was arrested for disturbing
the peace at his residence at the Windsor Inn, in Monroe,
Louisiana. The arresting officers were Vincent Guiterrez, Billy
Powell, and Exlena Thompson of the Monroe Police Department.
That night, Cathy Colvin, an employee of the Windsor Inn,
received complaints from tenants that an intoxicated person was
making loud noises and knocking on doors. She called the
security guard, Anthony Washington, and sent him to check on the
matter. Washington called Colvin and suggested that she call the
Monroe Police Department, which she did.
Guiterrez was dispatched to the Windsor Inn and met his
backup, Powell and Thompson, near Thomas’s apartment. The events
after that point are contested. The officers and Washington
testified that Thomas invited the officers in, there was a minor
tussle when he resisted arrest, and then they handcuffed him and
took him to the station. Thomas testified that he did not invite
them in, but came out to the parking lot, where one of the
officers hit him from behind on the neck, causing him to fall
down, and then hit him again while he was on the ground, finally
dragging him to the car.
At the jail, the jailers refused to book Thomas because he
was too intoxicated. The officers then took Thomas to the
2
hospital and waited until they were told that he would not be
released that night. Thomas was diagnosed with a spinal injury
that has seriously handicapped him since. Thomas’s blood alcohol
level when he was checked into the hospital was 254 MG/DL.
Discussion
“[A] jury verdict will not be overturned unless the facts
and inferences point so strongly and overwhelmingly in favor of
one party that the court believes that reasonable [jurors] could
not arrive at a contrary verdict.”1 “Credibility determinations,
the weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a
judge ....”2
A. Sufficiency of the evidence
1. Did the jury err in finding in favor of the defendants on
the question of excessive force?
The elements of an excessive force claim are (1)the
plaintiff suffered an injury, (2) which resulted directly and
solely from the use of force that was clearly excessive to the
1
Reeves v. AcroMed Corp., 103 F.3d 442, 445 (5th Cir. 1997)
(quoting Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969)).
2
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
3
need; and (3) the excessiveness of the force was objectively
unreasonable.3
Thomas testified that he had been drinking during the
evening and felt dizzy while walking to his apartment from the
grocery store. He knocked on doors, trying to get someone’s
attention, and then had to sit down for a while. After a few
minutes, he got up and went inside. According to Thomas, when
the officers arrived, Thomas went outside to the parking lot in
front of his apartment -- the officers were never in his
apartment that night. He stated that one of the officers struck
him from behind for no reason and while he was on the ground they
stepped on his hand and struck him on the feet and shoulders. He
testified that the officers then stood him up and let him fall
several times, as he could not stand on his own. Thomas’ wife,
who was not present at the scene, testified that she later
noticed that the shorts he had been wearing were stained with
grease and dirt.
The officers and the security guard testified that the
incident occurred in Thomas’s apartment. All testified that
Thomas opened the door, left it open, and then either verbally
invited the officers or waved them in. All testified that Thomas
offered “mild” or passive resistance, jerking his arm away from
Guiterrez when Guiterrez advised him he was under arrest and
grabbed his arm. When Thomas jerked his arm away, they both fell
onto the bed. The four accounts were slightly inconsistent on
3
Spann v. Rainey, 987 F.2d 1110, 1115 (5th Cir. 1993).
4
the question of whether Thomas and Guiterrez rolled from the bed
to the floor or remained on the bed. All four testified that the
only force used was to restrain Thomas long enough for him to be
handcuffed. They stated that Thomas was carried, not dragged,
from the apartment to the car and then to the jail.
The only other evidence presented was medical testimony.
Thomas called both Dr. Armistead and Dr. Nanda, experts in the
field of neurology. Dr. Armistead examined Thomas six months
after the incident for disability purposes, and again just before
trial. Dr. Armistead testified that Thomas had a congenital
spinal condition with degenerative changes which made him
predisposed to injury from trauma. When asked if a spinal
contusion could result if a person with Thomas’ condition slipped
and fell, he agreed it was possible, though later said it was not
likely. He agreed that the following hypothetical, proposed by
defense counsel, was possible: An intoxicated man falls while
walking, causing a trauma to his spinal cord, such that he cannot
move for two or three minutes; then he gets back up and continues
to his apartment; then sometime later the edema (swelling) from
the trauma has reached a point to where it is now impinging on
the spinal cord which could in turn cause a new onset of
paralysis.
Dr. Nanda examined Thomas when he arrived at LSU Medical
Center in Shreveport the day after the incident and treated him
during his stay there. Dr. Nanda testified that any kind of fall
or injury could have caused Thomas’ injury: “Anything, you know.
5
You can slip and fall and that is trauma. Any form of violent
action is trauma, really I mean. But it can depend. Sometimes a
minor trauma can cause it; sometimes a severe trauma can cause
it.” The defense’s theory was that Thomas injury was caused
either by a slip and fall earlier in the evening, at the time
Thomas said he was dizzy and had to sit down, or by falling off
the bed during the scuffle with Guiterrez. Neither version
involves excessive force on the part of the police.
The experts’ testimony could support either party’s version
of the events. The issue reduces to one of credibility. Such
questions are the quintessential function of the jury. As this
Court has stated “[t]he jury heard both sides and the jury spoke.
... There were clearly two sides to this case. The jury believed
Haun and his evidence; it did not believe Ideal. Consequently,
the jury’s verdict ... is affirmed.”4
2. Did the jury err by finding in favor of the defendants on
the issue of negligence?
Thomas argues that the jury could not have reasonably found
in favor of the defendants on the negligence claim because the
police officers owed a high level of care to him. When an
intoxicated person is taken into custody, a greater degree of
care is owed to him.5 However, this does not mean that officers
4
Haun v. Ideal Indus. Inc., 81 F.3d 541, 547 (5th Cir. 1996)
(citation omitted).
5
Barlow v. City of New Orleans, 241 So.2d 501, 504 (La.
1970).
6
become strictly liable for injuries, nor does the severity of the
condition determine that it was caused by negligence. The
standard is “reasonableness under the totality of the
circumstances.”6 Thomas’ claim for negligence rests on the same
evidence as his claim of excessive force. As discussed above,
the evidence was sufficient to support the jury’s finding for the
defendants.
B. Procedural objections
Thomas argues that there were several procedural errors
during the trial. The defendants argue that the procedural
issues raised by Thomas cannot be considered because they were
not referred to in the notice of appeal, citing C.A. May Marine
Supply Company v. Brunswick Corporation.7 However, May Marine
and the cases which follow it deal with the situation where the
appellant appealed one of two separate orders in a case, or a
motion was made after judgment had been entered. In this case,
Thomas’ notice of appeal stated that he was appealing “the Order
entered in this action on June 10, 1997, in favor of City of
Monroe, Vincent Guiterrez, Billy Powell, and Exlena Thompson,
denying plaintiff’s claims after trial by jury.” Rule 3(c)
requires that the notice of appeal: (1) specify the parties
taking the appeal by naming each appellant; (2) designate the
6
Mathieu v. Imperial Toy Corp., 646 So.2d 318, 322 (La.
1994).
7
649 F.2d 1049 (5th Cir. 1981).
7
judgment, order, or part thereof appealed from; and (3) designate
the court to which the appeal is to. Thomas’s notice was
sufficient to cover the procedural issues that he had objected to
during the trial leading up to the judgment being appealed.
1. Did the trial court err in the jury instructions?
Thomas argues that the court erred in several respects
during the jury instructions. An appellant must demonstrate that
the charge as a whole created substantial and ineradicable doubt
whether the jury was properly guided in its deliberations. Even
if the instructions were erroneous, the verdict will not be
reversed if, based upon the entire record, the challenged
instruction could not have affected the outcome. Further, if the
challenger to the instruction proposed another instruction to the
court, their proposed instruction must have correctly stated the
law.8
a. By not instructing the jury on a citizen’s purported right
to resist an illegal entry?
Thomas requested an instruction that a citizen has a right
to resist an illegal entry into one’s domicile, citing Louisiana
Revised Statute 14:18 and 14:19 in support. After discussion in
chambers, the court denied the request. Revised Statute 14:18
provides statutory justification for certain acts, including when
8
Schweitzer v. Advanced Telemarketing Corp., 104 F.3d 761,
763 (5th Cir. 1997); F.D.I.C. v. Mijalis, 15 F.3d 1314, 1318 (5th
Cir. 1994).
8
the offender’s conduct is in defense of persons or property under
any of the circumstances described in Articles 19 through 22.
Regarding defense of property, Revised Statute 14:19 provides
justification in defense of “a forcible offense or trespass”
against property.
In this case, there was no evidence of “forcible offense or
trespass.” Thomas testified that the officers never entered his
apartment. All the other witnesses testified that Thomas left
the door open and invited the officers in, verbally or with a
hand motion. Even if the statutes could be used to support the
requested instruction, which is not clear, it could not have
affected the outcome of the case.
b. By not instructing the jury on res ipsa loquitur?
The Supreme Court set out the standard for res ipsa loquitur
in San Juan Light & Transit Co. v. Requena:
[W]hen a thing which causes injury, without
fault of the injured person, is shown to be
under the exclusive control of the defendant,
and the injury is such as, in the ordinary
course of things, does not occur if the one
having such control uses proper care, it
affords reasonable evidence, in the absence
of an explanation, that the injury arose from
the defendant’s want of care.9
To be applicable, the plaintiff must show that the thing which
caused the injury was under the exclusive control of the
defendant or that the defendant has superior means for
9
224 U.S. 89, 98-99 (1912)
9
determining the cause of the accident.10 Neither factor is
present in this case. The evidence showed that Thomas was
injured sometime that night, and both experts agreed that it
could have occurred before the police even arrived, by his
falling due to his intoxicated condition. The mere fact that an
injury occurred and the parties disagree as to the cause does not
merit an instruction on res ipsa loquitor.
c. By not instructing the jury on conditions for police entry?
Thomas argues that the trial court erred in refusing to give
a jury instruction that police may enter a dwelling only when
armed with a warrant, consent or when exigent circumstances
exists. However, the trial court did so instruct the jury.
Thomas’s brief quotes the court’s statement that the police may
forcibly enter a dwelling to make a lawful arrest; this was in
the context of “emergency situations” and does not detract from
the court’s clear statement of the requirements for police entry.
2. Closing arguments
Thomas argues that the court erred in its rulings on two
objections during closing arguments. When reviewing claims based
on alleged improprieties in closing arguments, the entire
argument should be reviewed within the context of the court’s
ruling on objections, the jury charge, and any corrective
10
Id.; Fruge v. Penrod Drilling Co., 918 F.2d 1163, 1167
(5th Cir. 1990).
10
measures applied by the trial court.11 Alleged improprieties may
be cured by an admonition or charge to the jury.12
a. Rejecting plaintiff’s objection to defendants’ argument
Counsel for the officers stated during closing that “[m]ost
people are very respectful to police officers, and when one
knocks on the door, they generally invite them in. ... You hear
all the time of stops made on the interstate where the driver of
the vehicle invites the police to search their vehicle.”
Thomas’s counsel objected, and defense counsel responded that
“It’s an analogy on my part, not a fact in evidence.” At that
point, the judge stated “Well, I’ll instruct the jury that there
has been no evidence of any such things that happen. What
counsel says is not evidence.” The jury instructions given
afterward included an instruction that “statement and arguments
of the attorneys are not evidence and are not instructions on the
law. They are intended only to assist the jury in understanding
the evidence and the parties’ contentions.”
Defense counsel’s comment was immediately offset by the
judge’s statement in the jury’s presence that the attorney’s
statements were not evidence, which was later emphasized in the
jury instructions. Any impropriety was sufficiently cured.
11
Guaranty Serv. Corp. v. American Employers’ Ins. Co., 893
F.3d 725, 729 (5th Cir. 1990).
12
Id.
11
b. Sustaining objection to plaintiff’s closing arguments
In his closing, counsel for Thomas stated, “It’s kind of
odd, that Guiterrez left the hospital at 3:30 in the morning and
the first report of the police beating up Mr. Thomas is at 4:00
a.m.” Defense counsel objected in order to clarify that the
mention of a fight was in the hospital record, not a police
report. Thomas’s counsel then stated that the statement in the
report had been made by Thomas. Defense counsel objected again
because there had been no evidence that Thomas made any statement
at the hospital that night. The trial court sustained the
objection.
Thomas’s counsel argues that he was prevented from making
the important point that Thomas feared the police and made no
report until after the police left. However, he made no attempt
to get facts to support this argument into evidence during the
trial; he neither asked Thomas whether he had made such a
statement nor did he call anyone from the hospital to testify.
Instead, counsel attempted to introduce the evidence himself
during his closing, which was properly objected to and sustained
by the court.
3. Did the court err in not accepting Ed Allen as an expert
witness?
12
The trial court’s refusal to allow a proffered expert to
testify is reviewed for abuse of discretion.13 Federal Rules of
Evidence 702 provides that a witness may be qualified as an
expert based on any of the following: knowledge, skill,
experience, training or education.14
In this case, Allen was tendered as an expert in the area of
police conduct relative to entry of a residence, use of force,
excessive force and standards of care for custody of intoxicated
people. Allen has over 20 years of experience as a deputy
sheriff, but testified that he had not dealt in those areas very
often, he did not instruct people in those areas, and he had no
special training in those areas. The trial court determined that
Allen was not qualified as an expert in those areas.
Thomas basically argues that years of experience as a police
officer qualify that officer as an expert in any area of law
enforcement, citing Satcher v. Honda Motor Company.15 However,
in Satcher, the officer who testified had experience in the
specific area at issue -- he testified on lower leg protection in
motor cycle accidents, and he had investigated hundreds of
motorcycle accidents. General experience as a police officer,
standing alone, is not sufficient to qualify the officer as an
expert in every area of law enforcement, and the trial court did
13
Christophersen v. Allied-Signal Corp., 939 F.2d 1106, 1109
(5th Cir. 1991).
14
See Kopf v. Skyrm, 993 F.2d 374, 377 (4th Cir. 1993).
15
52 F.3d 1311, 1317 (5th Cir. 1995).
13
not abuse its discretion in ruling that Allen was not qualified
to testify as an expert in the areas at issue in this case.
Sufficient evidence supports the jury’s verdict, and the
lower court did not err in its rulings during the trial. The
trial judge’s entry of judgment in accordance with the jury
verdict is AFFIRMED.
14