IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 1, 2007
No. 06-50602 Charles R. Fulbruge III
Clerk
HARRY HATHAWAY, Individually and as Personal Representative of the
Estate of Jon-Eric Hathaway, Deceased; ERICA HATHAWAY, Individually
and as Personal Representative of the Estate of Jon-Eric Hathaway, Deceased
Plaintiffs - Appellants
v.
STEVEN BAZANY
Defendant - Appellee
Appeal from the United States District Court for the
Western District of Texas, San Antonio
Before GARWOOD, JOLLY, and STEWART, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
This appeal raises questions of excessive force under the Fourth
Amendment involving the shooting death of a teenage driver by a policeman who
was struck by the car as it sped away after a traffic stop. Harry and Erica
Hathaway, parents of the teenager, appeal the summary judgment granting
police officer Steven Bazany qualified immunity. The Hathaways also appeal
the district court’s exclusion of expert witness evidence offered in reply to
Bazany’s summary judgment motion. We hold that the exclusion of evidence
was justified and that Bazany, facing a grave threat to personal safety and with
only seconds to make a decision, acted reasonably under the circumstances, and
No. 06-50602
thus meets the requirements for qualified immunity. We therefore AFFIRM the
judgment dismissing the case.
I.
Steven Bazany, an officer with the San Antonio Police Department, was
providing security for City Hall on the afternoon of April 1, 2003. The San
Antonio City Hall is bounded on the north by West Commerce Street and on the
east by Flores Street. West Commerce Street, the street on which Bazany was
stationed, is four lanes wide and open only to west-bound traffic.
While on Commerce Street—and west of the intersection with Flores
Street—Bazany was approached by Marc Vargas, an off-duty Bexar County
Sheriff’s Deputy. Deputy Vargas stopped his vehicle beside Bazany to report a
possible gang altercation occurring farther down Commerce Street, east of the
intersection of Commerce and Flores. Officer Vargas told Bazany that a silver
Mustang was swerving at a blue car while the occupants of the Mustang were
hanging out of a window making gang signs and yelling “Sureño,” the name of
a well-known gang.
Bazany saw the Mustang stopped at the Flores and Commerce traffic light
and facing west with its doors open. Two or three males, the occupants of the
silver Mustang, were standing over the blue car, yelling and flailing their arms.
In order to get a better view, Bazany walked to the third lane from the south
curb of Commerce Street, the lane in which the Mustang was stopped on the
other side of the intersection. Bazany then walked east, towards the
intersection, at which time the men standing over the blue car returned to the
Mustang. The Mustang traveled through the intersection, and Bazany motioned
for it to pull over to the south curb of Commerce Street and stop. The Mustang
did so. Bazany then entered the southernmost lane so that he could approach
the Mustang from the driver’s side.
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Bazany testified that when he reached a point approximately eight to ten
feet from the front right corner of the Mustang, the vehicle suddenly accelerated
towards him, turning first to the right, then back to the left, and then finally
back towards the center of the roadway as Bazany attempted to get out of the
way. When Bazany realized that he was not going to be able to get out of the
Mustang’s path, he decided to fire his weapon. The Mustang struck Bazany on
the left leg, causing him to spin down the side of the vehicle. Bazany did fire his
weapon, though he does not know whether he drew and fired before, during, or
immediately after he was struck by the Mustang. These events took place, on
his account, in the snap of a finger.
The bullet fired by Bazany hit the Mustang’s driver, Jon-Eric Hathaway,
at a point immediately below Hathaway’s lower left shoulder blade, traveled
laterally through Hathaway’s lungs and heart, and came to rest on the right side
of his chest, between his right nipple and armpit. Hathaway died from this
wound.
II.
Harry and Erica Hathaway brought a 42 U.S.C. § 1983 lawsuit against
Bazany and the city of San Antonio. The Hathaways claimed that Bazany used
excessive force in seizing their son and that the city had failed to train its police
officers in the proper use of deadly force. The city filed a motion to dismiss and
Bazany filed a motion for summary judgment, claiming an entitlement to
qualified immunity. The Hathaways failed to respond to either motion and both
were granted by the magistrate judge. The Hathaways subsequently asked for,
and were granted, additional time to respond to Bazany’s motion for summary
judgment.
The Hathaways’ response objected to the expert testimony upon which
Bazany’s motion relied. The response also included the expert testimony of
Harry Hathaway, to which Bazany objected. The magistrate judge ruled that
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No. 06-50602
the testimony of both expert witnesses should be excluded. On the basis of the
remaining evidence, which was primarily Bazany’s own testimony, the
magistrate judge held that the Hathaways had failed to show that Bazany had
violated Jon-Eric Hathaway’s constitutional rights, and granted the motion for
summary judgment again. The District Court adopted the magistrate judge’s
conclusions. The Hathaways now appeal the exclusion of the testimony of their
expert and the grant of summary judgment.
III.
The Hathaways raise two issues on appeal: the exclusion of Harry
Hathaway’s testimony as an expert witness and the grant of qualified immunity
to Bazany. With respect to the expert witness issue, the Hathaways argue that
Harry Hathaway has presented all the indicia of reliability required by Fed. R.
Evid. 702, including a detailed account of his methodology and his own expert
background as a police officer. Bazany, in turn, points to numerous paragraphs
in the affidavit that he claims have virtually no evidentiary support and range
from purely legal determinations to psychological speculation.
The second issue on appeal, the grant of summary judgment denying the
Hathaways’ Fourth Amendment claims, is closer. The Hathaways argue that
the evidence was sufficient to merit jury consideration. To support this
argument, the Hathaways cite alleged inconsistencies in Bazany’s deposition,
the autopsy report describing their son’s injury, and the excluded evidence of
their expert. This evidence, the Hathaways argue, supports their theory that
Bazany fired at Jon-Eric well after the threat to Bazany’s safety had dissipated.
Bazany, for his part, notes that no admitted evidence controverts his deposition
testimony, and that his deposition evinces a scenario characterized by a threat
to both his safety and the safety of others and an extremely limited period of
time in which to develop a response to that same threat. These characteristics,
on Bazany’s account, justify his use of deadly force.
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IV.
A.
There is, first of all, a dispute over the proper standard of review to apply
to the exclusion of Harry Hathaway’s testimony. The Hathaways argue that an
abuse of discretion standard is appropriate here, see Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 152 (1999), while Bazany, claiming that the
Hathaways failed to preserve their objection to the magistrate judge’s order,
urges the more restrictive plain error standard of review, see Douglass v. United
Services Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc). Both
standards give deference to the trial court, however, and both support excluding
Harry Hathaway’s testimony here.1
Assuming that the Hathaways properly preserved their objections, “[w]ith
respect to expert testimony offered in the summary judgment context, the trial
court has broad discretion to rule on the admissibility of the expert’s evidence
and its ruling must be sustained unless manifestly erroneous.” Boyd v. State
Farm Ins. Co., 158 F.3d 326, 331 (5th Cir. 1998). The district court excluded
Harry Hathaway’s testimony on the ground that he failed to provide an adequate
basis to support his conclusions.
Federal Rule of Evidence 702 permits opinion testimony from “a witness
qualified as an expert by knowledge, skill, experience, training, or education” if
such testimony will assist the trier of fact and “(1) the testimony is based upon
1
That Harry Hathaway is both the father of the decedent and a party to this suit does
not affect our analysis. Although Hathaway evidently has an interest in the outcome of this
suit, that potential bias is likely not alone grounds for disqualification. See Rodriguez v.
Pacificare of Texas, Inc., 980 F.2d 1014, 1019 (5th Cir. 1993) (“Nothing in the Federal Rules
of Evidence prohibits a party from serving as an expert witness.”). See, e.g., Gideon v. Johns-
Manville Sales Corp., 761 F.2d 1129, 1135–36 (5th Cir. 1985) (finding that the alleged bias of
a medical doctor with extensive credentials did not foreclose the doctor’s ability to qualify as
an expert witness). In any case, as the issue of bias was not pursued by the parties and there
is ample other reason to support excluding Hathaway’s expert testimony, we need not pass
upon the relevance of Hathaway’s interest in this suit.
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No. 06-50602
sufficient facts or data, (2) the testimony is the product of reliable principles and
methods, and (3) the witness has applied the principles and methods reliably to
the facts of the case.” In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579 (1993), the Supreme Court assigned to trial courts the responsibility of
determining whether expert testimony under Rule 702 is “not only relevant, but
reliable.” Id. at 589. In this gate-keeping role, trial courts make “a preliminary
assessment of whether the reasoning or methodology underlying the testimony
is scientifically valid and of whether that reasoning or methodology properly can
be applied to the facts in issue.” Id. at 592–93.
The Daubert opinion lists a number of factors that a trial court may use
in determining an expert’s reliability. Trial courts are to consider the extent to
which a given technique can be tested, whether the technique is subject to peer
review and publication, any known potential rate of error, the existence and
maintenance of standards governing operation of the technique, and, finally,
whether the method has been generally accepted in the relevant scientific
community. See id. at 593–94. These factors are not mandatory or exclusive;
the district court must decide whether the factors discussed in Daubert are
appropriate, use them as a starting point, and then ascertain if other factors
should be considered. See Black v. Food Lion, 171 F.3d 308, 311–12 (5th Cir.
1999). But the existence of sufficient facts and a reliable methodology is in all
instances mandatory. “[W]ithout more than credentials and a subjective
opinion, an expert’s testimony that ‘it is so’ is not admissible.” Viterbo v. Dow
Chem. Co., 826 F.2d 420, 424 (5th Cir. 1987).
B.
Harry Hathaway offers little more than personal assurances based on his
police experience that his conclusions are so, amply justifying the trial court’s
exclusion of his testimony both on the basis of insufficient factual support and
lack of reliable methodology. Hathaway’s qualifications as an expert arise from
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No. 06-50602
his career as a law enforcement officer and special expertise in firearms training.
But his primary argument, that Bazany must have been behind the car when he
fired his shot, is not based on any discernable training in or use of a scientific
methodology suited to the reconstruction of the location of a shooter based on the
trajectory of the bullet or location of a shell casing.2 Instead, Hathaway relies
on a host of unsupported conjectures that falls far short of a methodology.
Hathaway’s affidavit states that if Bazany had fired his weapon before or
as he was struck by the car, the bullet would have had to enter through the
windshield of the Mustang. Since it did not, Hathaway argues that Bazany must
have been behind the car and out of danger when he fired the shot. But this
conclusion is based on supposition. In essence, Hathaway argues that if Bazany
had been holding his gun a particular way, and if the Mustang was facing a
particular direction, and if the driver was sitting with a particular posture, then
Hathaway’s version of the events in question is supported. Even granting
Hathaway these speculative premises, there is no indication of how Hathaway
is specifically trained to make these determinations or if the calculations he used
in coming to his conclusions are the kind normally used and accepted in forensic
reconstruction.
But, what’s more, Hathaway does not, because he cannot, offer any specific
factual support for the reliability of his initial assumptions. Bazany’s deposition
is the primary source for direct evidence of how the shooting transpired, and
Bazany was uncertain regarding many details necessary to Hathaway’s analysis.
2
Hathaway, after stating his opinion that Bazany was well behind the Mustang at the
time of the shooting, justifies his methodological approach by simply stating that he is “trained
in performing this kind of analysis and ha[s] done it for over 20 years.” But nothing in
Hathaway’s background shows specialization related to the kind of detailed forensic
reconstruction he attempts in his affadavit. Cf. United States v. Hicks, 389 F.3d 514, 524–26
(5th Cir. 2004) (upholding admission of shell casing comparison where expert had received FBI
training, has a degree in chemistry, had done firearm testing of the particular kind in question
for over twenty years, and had relied on well-accepted methods, including authoritative
literature produced by the Association of Firearm and Tool Mark Examiners).
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No. 06-50602
The extrapolation that Hathaway does from the physical evidence of the autopsy
report and the placement of the shell casing to overcome this evidentiary lack
therefore depends on the furtive inclusion of a number of supposed facts not in
the record.3 Hathaway’s testimony therefore has neither the sufficient facts nor
the reliable methodology that would warrant its inclusion as evidence. As a
result, the trial court was well within its discretion in excluding Hathaway’s
affidavit.4
V.
A.
The Hathaways next claim that the district court erred by adopting the
magistrate judge’s decision to grant summary judgment. We review the grant
of summary judgment de novo. Cousin v. Small, 325 F.3d 627, 637 (5th Cir.
2003). Summary judgment is proper “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact.” Fed. R. Civ. P. 56(c). A
genuine issue exists when “the evidence is such that a reasonable jury could
3
For instance, when analyzing what he takes to be the trajectory of the bullet fire by
Bazany, Hathaway claims that “[f]rom the top of [Jon-Eric] Hathaway’s shoulder which was
level with the windowsill of the vehicle to the entrance wound is approximately 7 inches.” But
there is no evidence in the record that shows that Jon-Eric Hathaway’s shoulder was level with
the Mustang’s windowsill at the time of the shooting, save an earlier statement by Hathaway
that he had observed Jon-Eric sitting in the Mustang on prior occasions.
4
The other arguments offered by Hathaway consist of completely unsubstantiated
factual assertions and legal or psychological opinion, and are therefore easily dismissed.
Representative statements include: “From my review of the witness’s statements it appears
that the driver of the Mustang was doing everything he could to avoid hitting Officer Bazany.
In fact it is not even clear that the driver of the Mustang saw Officer Bazany until the last
second.”; “After reviewing all of the statements, and because of my own experience with similar
circumstances, Officer Bazany took the shot after the vehicle hit his legs. You don’t have time
to draw a weapon; you are too busy trying to get out of the way. If a vehicle is coming at you
and it is 1 to 3 feet away you [sic] natural reflex is to put out both hands in an attempt to push
off the vehicle so it won’t hit you.”; “In my professional opinion Officer Bazany lost control of
his emotions and in a moment of extreme anger he shot the driver of the vehicle because
Hathaway had hit him with the Mustang and had scared the #%&*# out of the officer.”
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No. 06-50602
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). All reasonable inferences are drawn in favor of the
nonmoving party, but the nonmoving party “cannot defeat summary judgment
with conclusory allegations, unsubstantiated assertions, or ‘only a scintilla of
evidence.’” Turner v. Baylor Richardson Medical Center, 476 F.3d 337, 343 (5th
Cir. 2007) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)
(en banc)). In the context of a party asserting immunity in a summary judgment
motion, “[t]he moving party is not required to meet its summary judgment
burden for a claim of immunity. It is sufficient that the movant in good faith
pleads that it is entitled to absolute or qualified immunity. Once the [movant]
asserts this affirmative defense, the burden shifts to the plaintiff to rebut it.”
Cousin, 325 F.3d at 632 (emphasis and second alteration in original) (internal
citations and quotation marks omitted). Here, then, the evidentiary burden is
on the Hathaways to show that Bazany is not entitled to qualified immunity.
Qualified immunity is designed to protect government officials in limited
circumstances: “government officials performing discretionary functions
generally are shielded from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). This understanding of qualified immunity requires courts first to “assess
whether a statutory or constitutional right would have been violated on the facts
alleged.” Flores v. City of Palacios, 381 F.3d 391, 395 (5th Cir. 2004). Only after
having found a constitutional violation may a court then consider whether the
right in question was clearly established at the time of the violation such that
a reasonable person would have known of it. See id. (“[T]he Supreme Court has
made clear that we are obliged to go through the first step of the analysis even
if the second step shows that the law was not clearly established.”). Because we
conclude that Jon-Eric Hathaway’s constitutional rights were not violated in this
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No. 06-50602
case, we have no call to reach the second part of the qualified immunity
analysis.5
B.
In order to meet the first part of the qualified immunity test—the violation
of a constitutional right—the Hathaways argue that excessive force was used
against their son. In order to succeed on this claim the Hathaways must first
show that Jon-Eric Hathaway was seized within the meaning of the Fourth
Amendment. Id. at 396. The Hathaways must then show “(1) an injury (2)
which resulted directly and only from the use of force that was clearly excessive
to the need and (3) the force used was objectively unreasonable.” Williams v.
Bramer, 180 F.3d 699 (5th Cir. 1999).
The use of deadly force for apprehension is a seizure subject to the
reasonableness requirement of the Fourth Amendment. Tennessee v. Garner,
471 U.S. 1, 7 (1985). Garner defined the circumstances under which the use of
deadly force to stop a fleeing suspect is constitutionally reasonable. Id. at 11.
Specifically,
[w]here the 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. Thus, if the suspect threatens the officer with
a weapon or there is probable cause to believe that he committed a
crime involving the infliction or threatened infliction of serious
physical harm, deadly force may be used if necessary to prevent
escape, and if, where feasible, some warning has been given.
5
Even if we were able to conclude that these facts somehow established a constitutional
violation, United States v. Brosseau, 543 U.S. 194 (2004), makes it highly unlikely that the
Hathaways could prevail in establishing that Bazany infringed on a clearly established right
because of its emphasis on the “‘hazy border between excessive and acceptable force,’” id. at
201 (quoting Saucier v. Katz, 533 U.S. 194, 206 (2001)), in the context of an officer shooting
a suspect in a fleeing car.
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No. 06-50602
Id. at 11–12. The reasonableness of an officer’s use of deadly force is therefore
determined by the existence of a credible, serious threat to the physical safety
of the officer or to those in the vicinity. And, critically, reasonableness in these
circumstances “must embody allowance for the fact that police officers are often
forced to make split-second judgments—in circumstances that are tense,
uncertain, and rapidly evolving—about the amount of force that is necessary in
a particular situation.” Graham v. Connor, 490 U.S. 386, 396–97 (1989).
Satisfaction of the first part of the qualified immunity test here turns on
whether Jon-Eric Hathaway posed a threat so serious as to justify a reasonable
officer in Bazany’s position to respond with deadly force. We conclude that the
Hathaways have not carried their burden of proof in showing that Bazany acted
unreasonably.
Cases addressing suspects fleeing in motor vehicles often focus on the
position of the officer relative to the vehicle. For example, in Waterman v.
Batton, 393 F.3d 471 (4th Cir. 2005), police fired their weapons at a car that
“lurched” toward them, although the officers were not directly in the path of the
vehicle and indeed would only have been hit if the car swerved. Id. at 477. The
car had been involved in a high speed chase, but was at rest prior to the
movement that the officers met with deadly force. Id. In finding the shooting
justified, the court focused on a number of factors, including the previous
hazardous activity of the car. Id. But central to its analysis were the limited
time the officers had to respond and “the closeness of the officers to the projected
path of [the] vehicle.” Id. at 479. These factors led the court to conclude that the
officers were justified in using deadly force. Id. at 481.
The court found, however, that the officers were not justified in firing their
weapons at the car after it had passed them and stopped. Id. This finding was
based on the court’s view that, after the vehicle had passed the officers, the
officers had access to new information regarding the perceived threat and should
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No. 06-50602
therefore have changed their response accordingly. Id. Notably, then, the later
shots by the officers were found unjustified because the officers could have
actually perceived the passing of the threat. The court’s determination was not
based on its own post-hoc judgment about whether the threat had in fact passed.
Proximity and temporal factors have also been relevant in our own circuit
in a case involving a police officer who fired his weapon at a truck that “gunned”
its engine and accelerated towards the officer. Herman v. City of Shannon, 296
F. Supp. 2d 709, 713 (N.D. Miss. 2003). The truck, pursued by police after
failing to comply with a traffic stop, ultimately came to rest as it was attempting
to turn around on a country road. Id. at 711. Two patrol cars surrounded it, and
the officers exited their patrol cars with their guns drawn. Id. The truck then
accelerated towards an officer standing within three feet of the truck. Id. The
officer was struck by the truck and fired two shots, injuring a passenger in the
truck. Id. The district court found the response to be reasonable, given the
officer’s limited time to react to an evident threat and our circuit’s general
acknowledgment that police officers are often required to make instantaneous
decisions that ought not be second-guessed merely because other options appear
plausible in hindsight. See id. at 713.
Bazany’s deposition, which, as we have said, is the only personal account
of the event, states that he saw the Mustang accelerate towards him, and that
the driver, Jon-Eric, had a “determined look.” And, most crucially, Bazany
states that the subsequent sequence of events, in which he realized he could not
get out of the way, decided to fire, unholstered his gun, was struck, and fired his
weapon, occurred in the snap of a finger, so quickly, in fact, that Bazany cannot
remember whether he fired his gun before, during, or after he was struck.
Nothing offered in evidence seriously disputes the time frame recounted
by Bazany. The autopsy report is consistent with any number of theories of the
relative locations of Bazany and Jon-Eric because the crucial information
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No. 06-50602
regarding Jon-Eric’s position in the car at the time of the shooting is apparently
unknown to all parties. And simply because the autopsy report does not
contradict an offered theory does not mean that the theory can also be
reasonably inferred from it, any more than it could be inferred from the bare fact
that the bullet that killed Jon-Eric Hathaway came from Bazany’s gun. The
autopsy report is at best “a scintilla of evidence” for the theory that Jon-Eric
Hathaway was well past Bazany when Bazany fired. No other specific facts in
the record support this theory.
Furthermore, Bazany’s failure to remember certain details does not
amount to a “well-supported suspicion of mendacity” undermining his credibility.
Thomas v. Great Atlantic and Pacific Tea Co., 233 F.3d 326, 331 (5th Cir. 2000).
The evidence before us—and the lack of specific facts to the contrary—requires
a conclusion that Bazany fired his weapon and was struck by the Mustang in
near contemporaneity.
The only remaining question, then, is whether an officer would be justified
in firing his weapon when threatened by a nearby accelerating vehicle, even if,
owing to the limited time available to respond, the shot was fired when or
immediately after the officer was hit.6 The evidence indicates that Bazany was
in close proximity to a car that he had asked to pull over that then accelerated
towards him, making perception of a serious threat reasonable. Given the
extremely brief period of time an officer has to react to a perceived threat like
this one, it is reasonable to do so with deadly force. See Graham, 490 U.S. at
6
The Hathaways also argue that Bazany placed himself in danger by walking in front
of the Mustang and that the reasoning of Estate of Starks v. Enyart, 5 F.3d 230 (7th Cir. 1993),
precludes granting qualified immunity when an officer creates the hazard in this way. But this
reads Enyart much too broadly. In that case, the central dispute involved whether the police
officers placed themselves in front of the moving vehicle so that they could prevent it from
escaping. Id. at 233. There is no indication here that Bazany was using his body as a
barricade.
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369–97. It is this brevity, and the coordinate rapid response that it demanded
from Bazany, that is the distinguishing factor in this case.
This is not an instance, as in Waterman, where an officer fired after the
perception of new information indicating the threat was past. Instead, the
entirety of the officer’s actions were predicated on responding to a serious threat
quickly and decisively. That his decision is now subject to
second-guessing—even legitimate second-guessing—does not make his actions
objectively unreasonable given the particular circumstances of the shooting. See
Stroik v. Ponseti, 35 F.3d 155, 158–59 (5th Cir. 1994) (“‘[W]e 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 leisure’” (quoting Smith v. Freland, 954 F.2d
343, 347 (6th Cir. 1992))). Because Bazany’s actions were objectively reasonable,
we conclude that he did not violate Jon-Eric Hathaway’s Fourth Amendment
rights.
VI.
Because we find the expert testimony of Harry Hathaway properly
excluded and, on the evidence before us, no violation of Jon-Eric Hathaway’s
constitutional rights, the judgment of the district court is
AFFIRMED.
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