UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 92-3591
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MONICA STROIK,
Plaintiff-Appellee,
versus
WILBUR PONSETI and
WARREN G. WOODFORK,
Defendants,
WILBUR PONSETI,
Defendant-Appellant.
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Appeal from the United States District Court for the
Eastern District of Louisiana
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(September 28, 1994)
Before GARWOOD and BARKSDALE, Circuit Judges and SHAW,* District
Judge.
GARWOOD, Circuit Judge:
Defendant-appellant Wilbur Ponseti (Ponseti) appeals the trial
court's denial of his motion for judgment as a matter of law in
this suit under 42 U.S.C. § 1983 alleging Ponseti's excessive use
of force. Because we find that Ponseti's use of deadly force was
*
Chief Judge of the Western District of Louisiana, sitting by
designation.
objectively reasonable, we conclude that the trial court erred in
denying Ponseti's motion. Accordingly, we reverse.
Facts and Proceedings Below
On the evening of October 27, 1989, Ponseti, a police officer
with the New Orleans, Louisiana, Police Department, was on patrol
in a police car in the second district of the City of New Orleans
with his partner, Officer Kevin Balancier (Balancier). At or
around 10:30 p.m., the officers heard a police radio broadcast
concerning a series of armed robberies that had just occurred in
their patrol area. The radio message indicated that four persons
were suspected of committing the robberies, that the suspects were
driving a blue van, and that two of the suspects were black and two
were white. The broadcast further indicated that the suspects were
armed.
Upon hearing another radio message that the van had been
spotted on St. Charles Street, the officers attempted to intercept
the suspects. When they arrived at St. Charles, Ponseti and
Balancier observed two police cars following a blue van at high
speed. The officers joined in pursuit. The chase continued for
several blocks until the van struck a pedestrian. The driver then
turned into oncoming traffic, proceeded up the street, and
attempted a left turn, but instead lost control of the vehicle and
ran into a curb.
As the van came to a stop, a black male opened the sliding,
passenger-side door and fled on foot. Balancier parked the police
car in the middle of the intersection and, running past the open
sliding door of the van, chased the suspect down the street. At
2
the same time that Balancier ran past the van, Ponseti was running
toward the van. As Ponseti came around the back of the van to its
passenger side, he observed a second black male and a white female
exiting the van through the sliding door. The black male was
behind the white female with his left hand around her waist and was
holding a handgun in his right hand. Ponseti immediately fired his
gun seven to nine times, killing the black male and wounding the
white female.1
The decedent was later identified as Paul Johnson. The
injured female was Monica Stroik. She and her brother, Christopher
Stroik, had been carjacked by the two black males and then taken as
hostages by Johnson and the other man as they committed three armed
robberies of pedestrians.
When Ponseti attempted to handcuff Monica Stroik, she
responded that she was innocent and that she was wounded. It was
only then that the officers learned that the Stroiks had been
carjacked and taken as hostages by the two men.
On October 17, 1990, Monica Stroik filed suit pursuant to 42
U.S.C. § 1983 against Ponseti and Warren Woodfork, the
Superintendent of the New Orleans Police Department. In accordance
with 28 U.S.C. § 636(c), the parties consented to proceed before
the magistrate judge assigned to the case. On May 4, 1992, the
case was tried before a six-person jury. Both Ponseti and Woodfork
moved for judgment as a matter of law; the court granted the motion
for Woodfork but denied Ponseti's motion. On May 7, 1992, the jury
1
The woman was struck once in the right side of her abdomen.
3
returned a verdict against Ponseti, awarding Stroik $600,000 in
actual damages, and finding that Stroik was not entitled to
punitive damages against Ponseti. On May 8, 1992, the magistrate
judge entered judgment on the verdict for Stroik and against
Ponseti.
Ponseti then timely filed a motion for judgment as a matter of
law or, in the alternative, a new trial. Ponseti's motion was
based on his assertion that his conduct was objectively reasonable
under the circumstances and, thus, as a matter of law, not an
excessive use of force. The magistrate judge denied Ponseti's
motion. Ponseti now brings this appeal.
Discussion
In an appeal from the denial of a judgment as a matter of law,
our review of the district court proceedings is limited.2 See
Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969) (en banc).
To reverse the denial of a judgment as a matter of law, "the facts
and inferences [must] point so strongly and overwhelmingly in favor
of one party that the Court believes that reasonable men could not
arrive at a contrary verdict." Id. We review the record as a
whole, not just the evidence favorable to the verdict, but in the
light and with all reasonable inferences most favorable to the
verdict. Id. A mere scintilla of evidence does not suffice to
create a fact issue, rather there must be a conflict in substantial
evidence. Id. at 374-75. It is for the jury to weigh conflicting
2
Under the current Federal Rule of Civil Procedure 50, the
terms "directed verdict" and "judgment notwithstanding the
verdict" have been replaced by the single term "judgment as a
matter of law."
4
reasonable inferences and determine the credibility of witnesses.
Id. at 375. But a verdict may not rest on speculation and
conjecture. Nichols Const. Corp v. Cessna Aircraft Co., 808 F.2d
340, 346 (5th Cir. 1985). However, if reasonable persons could
disagree as to the verdict, a judgment as a matter of law is
inappropriate, and we must affirm. Boeing Co. at 374.
The issue in this appeal is whether the magistrate judge erred
in concluding that there was a jury question as to whether
Ponseti's shooting constituted excessive force.
A deadly force complaint under section 1983 is a federal
constitutional claim, and is analyzed according to Fourth Amendment
standards. See Reese v. Anderson, 926 F.2d 494, 500 (5th Cir.
1991). "[A]ll claims that law enforcement officers have used
excessive forceSQdeadly or notSQin the course of an arrest,
investigatory stop, or other 'seizure' of a free citizen should be
analyzed under the Fourth Amendment and its 'reasonableness'
standard." Graham v. Connor, 109 S.Ct. 1865, 1871 (1989) (emphasis
in original). In applying Graham, this Court has used a three-part
test for section 1983 excessive force claims, requiring a plaintiff
to show "(1) a significant injury,3 which (2) resulted directly and
only from the use of force that was clearly excessive to the need;
and the excessiveness of which was (3) objectively unreasonable."
3
But see Harper v. Harris County, 21 F.3d 597, 600 (5th Cir.
1994) (holding that the significant injury requirement of Johnson
v. Morel, 876 F.2d 477 (5th Cir. 1989), a case involving a Fourth
Amendment violation, is no longer valid in the wake of Hudson v.
McMillian, 112 S.Ct. 995 (1992), in which the Supreme Court held
that a showing of a significant injury was not required to prove
an Eighth Amendment violation).
5
Reese, 926 F.2d at 500 (citing Johnson v. Morel, 876 F.2d 477, 480
(5th Cir. 1989) (en banc) (per curiam)). The burden of proof on
each of these elements is, of course, on the plaintiff.
In the case sub judice, there is no dispute that Stroik
suffered a significant injury which resulted from Ponseti's use of
force. Thus, the only question is whether Ponseti's use of force
was "'objectively reasonable' in light of the facts and
circumstances confronting [him], without regard to [his] underlying
intent or motivation." Graham, 109 S.Ct. at 1872 (citing Scott v.
United States, 98 S.Ct. 1717, 1723-1724 (1978), and Terry v. Ohio,
88 S.Ct. 1868, 1879 (1968)). In answering this question, we look
at the totality of the circumstances, paying particular attention
to "whether the suspect pose[d] an immediate threat to the safety
of the officers or others, and whether he [was] actively resisting
arrest." Id. (citing Tennessee v. Garner, 105 S.Ct. 1694, 1699-
1700 (1985)).
When a suspect is fleeing and an 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." Garner, 105 S.Ct. at 1701. Indeed, "if the suspect
threatens the officer with a weapon . . . deadly force may be used
if necessary to prevent escape, and if, where feasible, some
warning has been given." Id. Moreover, "[t]he calculus of
reasonableness must embody allowance for the fact that police
officers are often forced to make split-second judgmentsSQin
circumstances that are tense, uncertain, and rapidly
6
evolvingSQabout the amount of force that is necessary in a
particular situation." Graham, 109 S.Ct. at 1872.
Although "'[t]he test of reasonableness under the Fourth
Amendment is not capable of precise definition or mechanical
application,'" id. at 1871 (quoting Bell v. Wolfish, 99 S.Ct. 1861,
1884 (1979)), our application of the Graham standard to the facts
in Reese v. Anderson, 926 F.2d 494 (5th Cir. 1991), is instructive
as to its parameters in this Circuit. In Reese, we held that a
police officer was entitled to summary judgment in a section 1983
action where the officer shot and killed a robbery suspect.
Responding to a radio call for the robbery of a convenience store,
the police officer in Reese spotted the suspects' car and began to
give chase. During the chase, which reached speeds of forty to
sixty miles per hour, the suspects threw out of the car window what
appeared to be parts of a cash register. The suspects' car
eventually spun out of control and the police car pulled up along
the passenger's side. Kneeling behind his open car door, the
police officer instructed the suspects to raise their hands. After
initially complying, the suspect in the front passenger seat
reached down below the seat with his left hand. The officer again
commanded the suspects to raise their hands and again the suspect
in the passenger seat raised and then lowered his hand. After this
happened several times, the officer, fearing for his safety, shot
the suspect once in the head, killing him. The officer later found
that the suspect was, in fact, unarmed. Id. at 500.
In analyzing the district court's denial of the police
officer's motion for summary judgment in Reese, we concluded that
7
"[u]nder these circumstances, a reasonable officer could well fear
for his safety and that of others nearby. He could reasonably
believe that [the suspect] had retrieved a gun and was about to
shoot." Id. at 501. For this reason, we held that the "officer
[was] justified in using deadly force to defend himself and others
around him," id., and that the officer was entitled to summary
judgment as a matter of law.
In Smith v. Freeland, 954 F.2d 343, 347 (6th Cir. 1992), the
Sixth Circuit followed our decision in Reese in analogous
circumstances, also aptly pointing out:
". . . we must avoid substituting our personal notions of
proper police procedure for the instantaneous decision of
the officer at the scene. We 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."4
In the case sub judice, the essential facts are not in
dispute. When Ponseti and Balancier arrived at the scene of the
shooting, all of the information they possessed indicated that
there were both black and white suspects in the van, that they were
4
Smith also observes:
"Furthermore, the fact that Officer Schulcz's actions
may have violated Springdale's policies regarding
police use of force does not require a different
result. Under § 1983, the issue is whether Officer
Schulcz violated the Constitution, not whether he
should be disciplined by the local police force. A
city can certainly choose to hold its officers to a
higher standard than that required by the Constitution
without being subjected to increased liability under §
1983." Id.
Again, we agree.
8
armed, and that they had all been involved in the robberies of
pedestrians. The van had just come to an abrupt stop after a high
speed chase during which the van had struck a pedestrian. One
suspect had begun to flee on foot and two others were exiting the
van. Finally, the crucial fact in this case is that at the time
Ponseti came around the rear of the van, he testified, and there is
no evidence contradicting this testimony, that Johnson was pointing
a gun at him.5 Hence, unlike the officer in Reese, Ponseti's life
was actually in jeopardy when he shot. Given these facts, Ponseti
had "probable cause to believe that the suspect[s] pose[d] a threat
of serious physical harm," Garner, 105 S.Ct. at 1701, to Ponseti,
or to others if the suspects were allowed to flee. Because
Ponseti could have reasonably believed that the suspects posed an
imminent, deadly threat, we conclude that he was justified in using
deadly force.6
5
The parties dispute whether Stroik and Johnson were standing
or were on the ground as Ponseti rounded the back of the van;
however, all direct evidence indicates that, whether standing or
on the ground, Johnson was pointing his gun at Ponseti. There is
no evidence from which a jury could conclude otherwise.
6
Stroik contends that several factors militate against a
finding that Ponseti's use of force was not excessive.
Ultimately, Stroik's argument boils down to an assertion that the
evidence supported a jury finding that "Ponseti was not in full
control of his anger and that he impulsively abandoned his police
training and shot the robbers, believing that Monica Stroik was
also a robber." Appellee's Brief at 10. In support of her
argument, she notes that Christopher Stroik testified that
Ponseti seemed "enraged" after the shooting and that a pre-
employment psychological profile indicated that Ponseti had "poor
impulse control." Regardless of the merits of these claims,
Stroik's argument fails because its focus is on Ponseti's
subjective state of mind. In so doing, Stroik disregards the
Court's instruction in Graham that we determine objectively the
reasonableness of a police officer's use of force, "without
regard to their underlying intent or motivation." Graham, 109
9
Conclusion
We therefore conclude that the magistrate judge erred in
denying Ponseti's motion for judgment as a matter of law.
Accordingly, the judgment below is
REVERSED.
S.Ct. at 1872.
10