Hover v. Brenner

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 99-60462
Summary Calendar

JAMES WALTER HOVER, II,
Plaintiff-Appellant,

versus

ADAM H. BRENNER; CITY OF MERIDIAN, MISSISSIPPI;
GREG LEWIS; JOHN DOE #1; JOHN DOE #2,
Defendants-Appellees.

--------------------
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 4:97-CV-79-LN
--------------------
August 7, 2000

Before HIGGINBOTHAM, EMILIO M. GARZA, and STEWART, Circuit Judges.

PER CURIAM:*

James Hover appeals a grant of summary judgment and a jury

verdict in favor of the defendants in his 42 U.S.C. § 1983 civil

rights suit. For the following reasons, we AFFIRM.

I

Hover and his cohort John McClelland participated in a drive-

by shooting in which McClelland allegedly fired a gun from the

window of Hover’s car in order to scare Richard Caffey. Police

later spotted the car and signaled for them to stop. Hover pulled

into a parking lot as if to stop, but decided not to stop because

McClelland had drugs on him. Hover then led police on a 7 mile

*
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should not be published and is not precedent except under the limited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. 99-60462
-2-

chase during which the drugs were thrown out of the car. Hover

eventually stopped in a church parking lot.

Officer Brenner and Officer Thomas began to apprehend the

suspects, telling them to keep their hands in the air. Thomas

dragged McClelland out of the car. Brenner approached Hover’s side

of the car and opened Hover’s door. According to Brenner, Hover

then made a movement with his right hand toward the space beneath

his seat while turning to get out of the car, and Brenner shot

Hover in the jaw.

Hover says that before he was shot, he merely turned his torso

slightly toward Brenner and asked if he could put the car in park

so that it would not move forward when he took his foot off the

brake. Hover states that he never reached down toward the console

or the seat.1

Hover sued Brenner, as well as the city and police chief in

their official capacities. The district court dismissed the

municipal liability claims against the city and police chief before

trial. At trial, the jury found no liability for Hover’s claim

against Brenner for the use of excessive force.

Hover appealed the verdict and dismissal, arguing that the

district court improperly limited Keith Oubre’s expert testimony;

that the district court improperly admitted evidence of Hover’s

drug use, Hover’s poor grades, and threats by Hover’s father; that

the district court improperly instructed the jury; that the jury’s

1
It was later determined that there was no gun in the car because the
suspects had previously dropped it off at McClelland’s home.

2
 No. 99-60462
-3-

verdict was against the weight of the evidence; and that the

district court erred in granting summary judgment in favor of the

City of Meridian and Chief Greg Lewis.

II

Hover was free to call Oubre as a witness to testify whether

Brenner’s use of force was objectively reasonable. The only

limitation was that Oubre would not be allowed to testify that

Brenner violated certain police procedures and created the need to

use deadly force. Hover failed to call Oubre as a witness and did

not make an offer of proof. Thus, the district court’s limitation

of Oubre’s testimony is subject only to plain error review.1

Plain error review in civil cases is an extraordinary remedy for

use only in exceptional cases,2 cases which “affect[] the fairness,

integrity, or public reputation of the trial court’s proceedings.”3

In this circuit, § 1983 liability cannot be premised on the

fact that an officer “creates the need” to use excessive force by

failing to follow police procedure.4 The Second and Eighth

Circuits have further held that the failure to follow procedure

prior to the moment of seizure is therefore not relevant in

determining whether the officer’s use of force was objectively

1
See United States v. Graves, 5 F.3d 1546, 1551-52 (5th Cir. 1993).
2
Sandidge v. Salen Offshore Drilling Co., 764 F.2d 252, 262 n. 9 (5th Cir.
1985).
3
9A CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2558 at 469
(2d ed. 1995).
4
See Fraire v. City of Arlington, 957 F.2d 1268, 1275-76 (5th Cir. 1992).

3
 No. 99-60462
-4-

reasonable during the actual seizure.5

This circuit has not addressed the precise issue of whether

such evidence may be relevant to prove a theory other than a

“creation of the need” theory, but for the purposes of our plain

error analysis it suffices that none of our cases oppose the Second

and Eighth Circuit’s view that violations before the seizure are

irrelevant.6

Recognizing this, Hover argues that by stopping in the church

parking lot, he submitted to police authority and that submission

constituted a seizure. Therefore, he says, violations of police

procedure after that point were relevant to determining whether

Brenner’s use of force was objectively reasonable. However, if

Hover suddenly reached below his seat and tried to get out of the

car after being told not to move, Hover’s submission and any

related seizure, obviously ended.7 When Brenner shot Hover, Hover

was seized again. Thus, evidence that proper police procedure was

not followed was at best only conditionally relevant: i.e.,

5
See Salim v. Proulx, 93 F.3d 86 (2d Cir. 1996); Schulz v. Long, 44 F.3d
643, 648-49 (8th Cir. 1995). As the Eighth Circuit has noted, police procedures
are primarily for the protection of police officers, not armed suspects. See
Mettler v. Whitledge, 165 F.3d 1197, 1203 (8th Cir. 1999).
6
See Rushing v. Kansas City Southern Ry. Co., 185 F.3d 496, 506 (5th Cir.
1999) (stating that to prove plain error, a party must demonstrate error that is
“clear and obvious under current law”).
7
Arguably, even the fact that Hover stopped the car in the church parking
lot did not unequivocally indicate his submission to the police, given his recent
actions. Before leading police on a 7 mile chase, Hover pulled into a parking
lot as if to stop only to speed off again. Furthermore, when Hover stopped the
car in the church parking lot, he kept it running and in drive. The only reason
it was not moving was because his foot was on the brake. Given Hover’s previous
actions, including the chase, there exists a reasonable inference that Hover may
have intended to simply speed away again under the right circumstances, since he
could have done so even with his hands in the air.

4
 No. 99-60462
-5-

relevant if the jury decided that Hover had made no sudden

movements.

Of course, if a jury were to find that Hover had made no

sudden movements, Brenner’s use of deadly force would almost

certainly have been excessive. In that situation, evidence of

Brenner’s earlier failure to follow proper police procedure would

have been of little to no marginal probative value. More

importantly, if that evidence had been conditionally admitted and

the jury found that Hover had make a sudden movement, the evidence

would have been irrelevant under the view of the Second and Eighth

Circuits. If the jury went ahead and considered the evidence

despite any limiting instruction, Brenner would have suffered

unfair prejudice.

Under Rule 403, a district court would have the discretion to

exclude conditionally relevant evidence if its marginal probative

value was at best de minimis and substantially outweighed by the

danger that a limiting instruction regarding conditional relevance

would have been ineffective.8 This is not to say that such

evidence would necessarily have been inadmissible, but only to show

that a district court’s exclusion of this evidence would not

obviously have been an abuse of discretion. Consequently, we

cannot say that the district court’s limitation on Oubre’s

8
See FED. R. EVID. 403 advisory committee’s note (“In reaching a decision
whether to exclude on grounds of unfair prejudice, consideration should be given
to the probable effectiveness or lack of effectiveness of a limiting
instruction.”); Old Chief v. United States, 519 U.S. 172, 184 (1997) (stating
that the Rule 403 balancing test involves a consideration of the marginal
probative value of evidence).

5
 No. 99-60462
-6-

potential testimony created plain error.

III

Hover did not properly object to the introduction of the drug

evidence so he is limited to plain error review on this issue as

well. After Hover was shot, Hover’s blood tested positive for

cannabinoids (marijuana), and drug paraphernalia was found in his

car. At trial, Hover was questioned about this as well as past

drug use.

The blood evidence and drug paraphernalia was probative of

Hover’s drug use on the day in question, which was relevant in

assessing Hover’s ability to recall the events of that day,9 and

Hover’s own counsel introduced the drug paraphernalia evidence.

Similarly, with respect to Hover’s use on other occasions,

Hover’s counsel initially elicited the fact of such use as well.

Hover denied smoking marijuana on the day in question, but Hover’s

counsel then asked Hover what effect marijuana had on his system.

By answering that it had a calming effect, Hover admitted to having

used marijuana at some time other than the day in question and

implied that it did not impair his senses.

Having opened the door, Hover cannot complain that opposing

counsel then questioned him on that issue. Furthermore, Hover

cites no controlling authority that the introduction of such

evidence was improper nor does he argue that the introduction of

9
See Isonhood v. State, 274 So.2d 685 (Miss. 1973).

6
 No. 99-60462
-7-

the evidence affected his substantial rights. Accordingly, Hover

fails to carry his burden of demonstrating plain error.10

IV

Hover did not properly brief the issues of the introduction of

his poor grades and his father’s threats because he did not provide

authorities in support of his claim, and the issues may be deemed

abandoned.11 Alternatively, the introduction of his poor grades

was both relevant and admissible in order to rebut Hover’s attempt

to inflate his claim of lost future earnings by saying he intended

to go to dental school.12

V

The evidence regarding Hover’s father’s threats against

McClelland was relevant and admissible for the purpose of

demonstrating McClelland’s possible bias. As indicated by the

trial court’s limiting instructions, this evidence was not admitted

to prove that Hover’s father actually threatened McClelland, but

was only offered to prove that McClelland was operating under the

belief that Hover’s father had made such a threat to McClelland’s

father.13

10
See Tompkins v. Cyr, 202 F.3d 770, 779 (5th Cir. 2000).
11
See FED. R. APP. P. 28(a); L & A Contracting v. Southern Concrete Servs.,
Inc., 17 F.3d 106, 113 (5th Cir. 1994).
12
See FED. R. EVID. 401, 402, 403.
13
See id.; FED. R. EVID. 801.

7
 No. 99-60462
-8-

VI

The allegedly erroneous jury instruction regarding qualified

immunity was not determinative of the outcome of the trial since

the jury never answered the qualified immunity question because

they found that Brenner’s use of force was objectively reasonable

under the circumstances. Thus, the issue of qualified immunity was

irrelevant to the jury’s verdict and the instruction cannot be a

basis for reversible error.14

VII

Hover abandoned his claim that the jury verdict was against

the overwhelming weight of the evidence because he did not properly

brief the issue by providing citations to the record or providing

authority in support of his assertions.15 Alternatively, review

is limited to plain error because Hover failed to timely move for

a judgment as a matter of law before the case was submitted to the

jury, and the verdict will be upheld if some evidence supports the

verdict.16

In addition to Officer Brenner’s testimony which, if believed,

justified the use of deadly force, a police expert in the use of

force testified that Brenner’s use of force was objectively

reasonable, and a forensic scientist testified that Hover’s

14
See Bender v. Brumley, 1 F.3d 271, 276 (5th Cir. 1993).
15
See FED. R. APP. P. 28(a); L & A Contracting, 17 F.3d at 113.
16
See United States ex rel. Wallace v. Flintco Inc., 143 F.3d 955, 960 (5th
Cir. 1998); FED. R. CIV. P. 50(a).

8
 No. 99-60462
-9-

bloodstain pattern indicated that Hover was getting out of the car

despite being commanded not to move. Thus, the verdict was

supported by some evidence.

VIII

Hover argues that the district court erred in dismissing Chief

Lewis in his official capacity and the City of Meridian on Hover’s

municipal liability’s claims relating to the training and

supervision of Officer Brenner.17

To succeed on such claims, Hover must show that the training

and supervision procedures of the municipality’s policymaker were

inadequate, that the municipality was deliberately indifferent in

adopting those procedures, and that the inadequate procedures

directly caused the plaintiff’s injury.18

Hover does not identify any specific deficiency in the

department’s training or supervisory procedures or any evidence of

17
Hover originally alleged a claim based on the hiring of Officer Brenner,
but has not specifically argued against the dismissal of that specific claim on
appeal and it may be deemed abandoned. See FED. R. APP. P. 28(a); L & A
Contracting, 17 F.3d at 113 (5th Cir. 1994).
Alternatively, we would affirm dismissal on this claim for essentially the
same reasons put forward by the district court. The only evidence of a problem
in Brenner’s background when he was hired was that he checked “yes” on his
employment application indicating that he was aware of one or more
“unsatisfactory report[s] of character or personal habits which would jeopardize
[his] ability to perform the particular class of work [he was] applying for” and
a letter of recommendation which, while positive overall, mentioned that Brenner
had “encountered a few problems during his probationary rating period.”
These “problems” were not specified, nor did Hover ever depose Brenner with
regard to the existence or contents of any “unsatisfactory reports.” As such,
the district court held and we agree that “[t]he allegations in the case at bar
related to Brenner’s background rise nowhere near the level of those” in Board
of County Comm’rs of Bryan County, Okl. v. Brown, 520 U.S. 397 (1997), where “the
Court found that the hiring procedures were adequate.”
18
See Conner v. Travis County, 209 F.3d 794, 796-97 (5th Cir. 2000).

9
 No. 99-60462
-10-

a policy authorizing the use of excessive force. Hover mainly

argues that Brenner failed to abide by standard police procedure.

Even if true, this does not evidence that Brenner’s training was

deficient. As even Hover concedes, Brenner may have “deliberately

ignored what training he did receive,”19 which would mean that

Brenner was at fault, not his prior training. Further, the fact

that one episode of violence did occur – Brenner’s shooting of

Hover – is also insufficient to imply the existence of inadequate

training or supervision.20

Hover does have evidence that approximately four citizens

complained about Brenner in the past, but none of these complaints

related to the use of deadly force. Three citizens were upset that

Brenner handcuffed and arrested them for minor offenses. One of

these complaints (involving two citizens), was investigated and it

was determined that Brenner had not used excessive force or

violated procedure. With respect to the third citizen, there is no

evidence that she ever filed a formal complaint. The fourth

citizen formally complained that Brenner sprayed him with mace

during an arrest and hit him in the mouth. This complaint,

however, was investigated by the police department and found to be

19
Brief of Appellant, at 28.
20
See Gabriel v. City of Plano, 202 F.3d 741, 745 (5th Cir. 2000) (“We have
consistently rejected application of the single incident exception and have noted
that ‘proof of a single violent incident ordinarily is insufficient to hold a
municipality liable for inadequate training.’”) (quoting Snyder v. Trepagnier,
142 F.3d 791, 798 (5th Cir. 1998)); Snyder, 142 F.3d at 798 (“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 § 1983.’”) (quoting Rodriguez v. Avita, 871 F.2d 552, 554-55 (5th Cir.
1989) (internal quotation and citations omitted))).

10
 No. 99-60462
-11-

meritless.

Given the above, Hover has failed to generate a question of

material fact that the City or Chief Lewis was “deliberately

indifferent” to the need for greater training or supervision to

prevent the incorrect use of deadly force. Such a need must be

“obvious,”21 and the failure to address the need must be “likely to

result in violations of constitutional rights,”22 and amount to more

than mere negligence.23 As such, deliberate indifference cannot

be inferred from these prior complaints or the police department’s

handling of them. The complaints demonstrated no obvious need for

greater training with respect to the use of deadly force, and the

formal complaints were investigated and found to be without merit.

Hover also attempted to demonstrate that the police department

had a policy of ratifying the actions of police officers regardless

of their legality. Hover inferred this from the fact that Brenner

was not disciplined for shooting Hover after an internal police

investigation. Not only does this presuppose that Brenner’s

actions required some form of punishment, but also it impermissibly

attempts to prove the existence of an official city policy by the

observation of a single incident.24

21
Conner, 209 F.3d at 796 (quoting City of Canton v. Harris, 489 U.S. 378,
390 (1989)).
22
Conner, 209 F.3d at 796 (quoting City of Canton, 489 U.S. at 390).
23
See Rhyne v. Henderson County, 973 F.2d 386, 392 (5th Cir. 1992) ("While
the municipal policy-maker’s failure to adopt a precaution can be the basis for
§ 1983 liability, such omission must amount to an intentional choice, not merely
an unintentionally negligent oversight.").
24
See Frair v. City of Arlington, 957 F.2d 1268, 1278 (5th Cir. 1992).

11
 No. 99-60462
-12-

Hover contends that such a policy may be inferred because

Brenner’s police file did not contain any of the mentioned citizen

complaints. As noted, however, the police did investigate two of

the three prior complaints and absolved Brenner on both. More

importantly, there was no competent summary judgment evidence that

any complaints were formally filed except for the one involving the

mace. In that instance, Brenner was absolved but the police

misfiled the complaint under the name of the complainant rather

than the officer, which does not indicate deliberate indifference.

Hover did provide the affidavit of a former police officer who

knew of Brenner but did not work with him. In that affidavit, the

officer stated that another police officer told her that the

department had received complaints about Brenner in the past. That

statement, however, is inadmissible hearsay to show the existence

of any other complaints. Consequently, Hover has failed to create

a fact question regarding the existence of a policy of always

ratifying the actions of police officers either through failing to

punish Brenner or by turning a blind eye to citizen complaints.

In sum, Hover’s summary judgment evidence does not generate a

fact question as to whether the department had a policy that

explicitly authorized the use of excessive force, treated formal

complaints with deliberate indifference, ratified the actions of

its officers regardless of their legality, or was deliberately

indifferent to the need for different or additional training in the

use of deadly force. For all of these reasons, there was no basis

12
 No. 99-60462
-13-

for municipal liability and dismissal was proper.25

AFFIRMED.

25
Although not a basis for our decision, we note that the plaintiff is
likely precluded from recovering damages from the municipality for another
reason. A jury found that Brenner’s actions created no constitutional violation.
Thus, even if departmental policy authorized unconstitutional conduct, no
municipal liability can attach when the plaintiff’s only theory is that the
municipality is liable for the officer’s unconstitutional conduct, since none
occurred. See Los Angeles v. Heller, 475 U.S. 796, 799 (1986); Saenz v.
Heldenfels Bros., Inc., 183 F.3d 389, 392 (5th Cir. 1999).
Other circuits have held that municipal liability can survive for an
independent constitutional violation committed by the municipality that harms the
plaintiff. See, e.g., Grossman v. City of Portland, 33 F.3d 1200, 1203 (9th Cir.
1994) (holding that even if police officers had probable cause to arrest a
plaintiff under a city ordinance, dismissal of the city was unwarranted because
city’s liability was based not on lack of probable cause, but on the
unconstitutionality of the ordinance, and “if the ordinance is unconstitutional,
[the plaintiff] suffered constitutional injury despite the ordinance’s
applicability to his conduct”).
Hover does not argue that an independent constitutional violation occurred
here. Instead, Hover simply argues that because the city ratified Brenner’s
actions and failed to properly train and supervise him, the city should be held
liable for Brenner’s unconstitutional use of excessive force.

13