UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
______________________________________________________
No. 94-40271
_______________________________________________________
TOINETTE FONTENOT & WILLIAM BRANDENBURG,
Plaintiffs-Appellants,
versus
DALLAS CORMIER, ET AL.,
Defendants,
BOB FINLEY, DONALD BROWN, SCOTT BUSSEY
& JOE GUIDRY,
Defendants-Appellees
_______________________________________________________
Appeals from the United States District Court
for the Western District of Louisiana
_______________________________________________________
(June 20, 1995)
Before DAVIS and WIENER, Circuit Judges, and VANCE,* District
Judge.
VANCE, District Judge:
Toinette Fontenot and William Brandenburg appeal from an order
by a United States Magistrate Judge in the Western District of
Louisiana granting judgment as a matter of law to the defendants on
the grounds of qualified immunity and conditionally granting the
* District Judge of the Eastern District of Louisiana, sitting
by designation.
defendants' motion for a new trial. We affirm the magistrate
judge's order as to William Brandenburg, but we reverse and remand
for further proceedings consistent with this opinion as to Toinette
Fontenot.
I. BACKGROUND
Shortly after 2:00 a.m. on January 21, 1991, the Jefferson
Davis Parish Sheriff's Office received an emergency telephone call
from a local convenience store "about a man with a gun." The
Sheriff's Office dispatched shift supervisor Deputy Robert Trahan
to investigate. A patron subsequently informed Trahan that he had
been assaulted by William Brandenburg. Several other patrons also
identified Brandenburg by name as the alleged assailant.
Brandenburg was well known among Jefferson Davis Parish
Sheriff Deputies as a convicted felon with a history of violence.
The deputies also knew that during his incarceration, Brandenburg
had been a "trustee" [sic] of the parish prison and that he had
recently testified before a grand jury in connection with a
corruption investigation concerning the Jefferson Davis Parish
Sheriff's Office.1 After a search of the convenience store and
surrounding area failed to uncover Brandenburg, Trahan ordered
Sheriff Deputies Bob Finley, Donald Brown, Scott Bussey, and Joe
Guidry to pick Brandenburg up for questioning. Trahan directed the
1 "Trustees" [sic] were prison inmates who allegedly did work
for the Sheriff and his deputies in exchange for various
privileges, including being granted extended liberties from
incarceration.
2
deputies to Toinette Fontenot's residence, where Brandenburg was
known to reside. Trahan stayed behind at the convenience store to
gather additional information.
The deputies traveled the short distance to Fontenot's
residence in three squad cars, arriving at approximately 2:30 a.m.
To illuminate the area, the deputies trained their vehicle lights
across Fontenot's home and then approached the residence on foot
from two directions. Deputies Finley, Brown, and Bussey entered
Fontenot's carport at the side of the house. While Deputies Brown
and Finley walked up to the carport door entrance, Deputy Bussey
positioned himself at a back wall with a shotgun pointed at the
door. Deputy Brown held his handgun in a ready position.
Meanwhile, Deputy Guidry approached the house from the back,
positioning himself at a back door entrance. His gun was also
drawn. Before the deputies took any further action, Fontenot, who
had been awakened by the vehicle lights, appeared at the carport
door entrance. Fontenot immediately saw Deputy Brown facing her
through a window in the door. His gun was pointed directly at her.
One of the deputies commanded: "Jeff Davis Sheriff's Office--open
up!" Fontenot complied, and the three deputies located in the
carport moved quickly into her home. Deputy Guidry followed.
Upon entering the residence, the deputies searched the rooms
adjoining the carport door entrance. Frightened for the safety of
her sleeping daughter, Fontenot ordered the deputies not to venture
further into the home. The deputies complied. Fontenot then asked
the deputies why they were at her home and what they wanted. The
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deputies told her that they were "not at liberty" to disclose such
information and proceeded to ask her a series of questions
concerning Brandenburg. Fontenot told the deputies that
Brandenburg had left the house to get a pack of cigarettes.
Fontenot again asked the deputies why they were inside her home.
She also asked whether they had a search warrant. The deputies
told Fontenot that they did not have a warrant. They also told her
that they had been sent to "pick up" Brandenburg but refused to
tell her why. During the exchange, Fontenot told the deputies to
calm down and to explain what was happening. On several occasions,
she also told them they "needed to leave." The deputies ignored
Fontenot's demands to leave but holstered their guns.
Within a few minutes, Brandenburg arrived on the scene,
parking his car on the road in front of the house. At that point,
the deputies left Fontenot's home and rushed toward Brandenburg's
car. Guns drawn, the deputies ordered Brandenburg out of the
vehicle and informed him that they had been ordered to pick him up
for questioning. Brandenburg exited the vehicle with his hands up.
He then asked the deputies if they had a warrant. The deputies
told Brandenburg that they did not have a warrant. Brandenburg
refused to go with the deputies and accused them of being there to
retaliate against him for testifying before the grand jury. He
then dashed for the cover of the carport. As Brandenburg ran
toward the carport, Deputy Guidry tackled him but was shrugged off.
Once safely in the carport, Brandenburg positioned himself at
its back end. Fontenot stood behind him. Both Fontenot and
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Brandenburg told the deputies to leave, but they remained at the
front end of the carport. Their guns were drawn. Within a few
moments, Brandenburg and Fontenot were joined in the carport by
Brandenburg's pitbull terrier. A standoff ensued.
During the standoff, the deputies attempted to convince
Brandenburg to come with them voluntarily. Brandenburg refused to
do so unless state troopers were brought to the scene to ensure his
protection. While the parties discussed the terms of Brandenburg's
surrender, the pitbull terrier lunged at the deputies. Deputy
Bussey threatened to shoot the dog if it came any closer.
Brandenburg pulled the dog back by its collar. He then broke off
the handle of a broom and warned that no one was going to shoot his
dog. After approximately thirty minutes of fruitless discussion,
the deputies became convinced that Brandenburg would not come with
them voluntarily. They radioed Trahan for instructions. Trahan
told the deputies to leave, which they did. A warrant charging
Brandenburg with aggravated assault was issued the next day, and he
was arrested without incident.
II. PRIOR PROCEEDINGS
In their complaint, Brandenburg and Fontenot allege that
Deputies Finley, Bussey, Guidry, and Brown, together with Deputy
Trahan and Jefferson Parish Davis Sheriff Dallas Cormier, violated
their constitutional rights and committed various intentional torts
during the January 21, 1991 stand-off. Plaintiffs further allege
that they are entitled to damages under 42 U.S.C. § 1983 and
5
Louisiana state law. The parties consented to a jury trial before
a magistrate judge.
During trial, the magistrate judge dismissed plaintiffs'
claims against Sheriff Cormier. The jury found in favor of Deputy
Trahan on all claims but returned a verdict in favor of both
plaintiffs against Deputies Finley, Bussey, Guidry, and Brown on
plaintiffs' Section 1983 claims. The jury awarded Toinette
Fontenot $15,000 in compensatory damages and $2,500 in punitive
damages. William Brandenburg was awarded $10,000 in compensatory
damages. The deputies subsequently filed a motion for judgment as
a matter of law and alternatively, a motion for a new trial.
Finding the deputies entitled to qualified immunity, the magistrate
judge granted their motion for judgment as a matter of law and
conditionally granted their motion for a new trial.
III. DISCUSSION
Plaintiffs' first point of contention is that the magistrate
judge erred in granting the defendants' motion for judgment as a
matter of law. In determining the propriety of the magistrate
judge's order, we consider all of the evidence in the light most
favorable to the parties opposed to the motion. Barnett v.
Internal Revenue Service, 988 F.2d 1449, 1453 (5th Cir.), cert.
denied, ____ U.S. ____, 114 S. Ct. 546 (1993). If the facts and
inferences point so strongly and overwhelmingly in favor of the
defendants that reasonable jurors could not have arrived at the
verdict reached in this case, the magistrate judge's order will be
6
upheld. Crist v. Dickson Welding, Inc., 957 F.2d 1281, 1285 (5th
Cir.), cert. denied, ____ U.S. ____, 113 S. Ct. 187 (1992). On the
other hand, the magistrate judge was not free to adjudicate the
facts de novo. We must therefore reverse if the evidence before
the jury was such that reasonable and fair-minded persons in the
exercise of impartial judgment might reach different conclusions.
Molex, Inc. v. Nolen, 759 F.2d 474, 478 (5th Cir. 1985).
In his order, the magistrate judge held that the deputy
defendants were entitled to qualified immunity with respect to
plaintiffs' claims under 42 U.S.C. § 1983. Under the doctrine of
qualified immunity, law enforcement officers may not be held liable
for civil damages so "long as their actions could reasonably have
been thought consistent with the rights they are alleged to have
violated." Enlow v. Tishomingo County, 962 F.2d 501, 508 (5th Cir.
1992)(citations omitted); see Harper v. Harris County, 21 F.3d 597,
600 (5th Cir. 1994). The examination of a claim of qualified
immunity is a two-step inquiry. First, a court must determine
whether plaintiff has alleged a violation of a clearly established
right. See Siegert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789, 1793
(1991). Second, the court must determine whether the officer's
conduct was objectively reasonable in light of the legal rules
applicable at the time of the alleged violation. Id. The inquiry
is conducted without regard for the law enforcement officer's
actual state of mind or subjective motivations. Instead, the court
attempts to put itself "in the shoes of a reasonable police officer
as he or she approaches a given situation and assesses the
7
likelihood of danger in a particular context." United States v.
Rideau, 969 F.2d 1572, 1574 (5th Cir. 1992) (en banc).
A. Brandenburg's Claims
Brandenburg alleges that the defendants' conduct during the
January 21, 1991 standoff amounted to an unlawful seizure and that
the officers used excessive force in attempting to effect his
arrest.2 Both allegations implicate well-established rights under
the Fourth Amendment and are thus sufficient to satisfy the first
step of the qualified-immunity analysis. Our concern therefore is
with whether, when viewed objectively, the facts and circumstances
surrounding the standoff support as objectively reasonable the
deputies' conduct with regard to Brandenburg. We find that they
do.
In order to make a warrantless arrest in a public place, the
arresting officers must have probable cause to believe that the
suspect has committed, is committing, or is about to commit a
crime. See Harper v. Harris County, 21 F.3d 597, 601 (5th Cir.
1994); United States v. Mason, 665 F.2d 765, 769 (5th Cir. 1982).
In this case, the victim of the alleged assault identified
2 There are three tiers of police-citizen encounters:
communications between police and citizens involving no coercion or
detention; investigatory stops; and full-scale arrests. United
States v. Watson, 953 F.2d 895, 897 n.1 (5th Cir.), cert. denied,
504 U.S. 928, 112 S. Ct. 1989 (1992). Brandenburg and the deputies
dispute the nature of the detention involved here. However, since
we find that the deputies had probable cause warranting the arrest
of Brandenburg, the most coercive form of detention, the
distinction between the types of detention is not critical to the
resolution of this case.
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Brandenburg by name. The victim's identifying statement was
corroborated by other patrons. The deputies also knew that
Brandenburg was a convicted felon and that he lived nearby. Under
these circumstances, the deputies had probable cause to believe
that Brandenburg had committed a crime. See United States v.
Dougall, 919 F.2d 932, 934 (5th Cir. 1990), cert. denied, 501 U.S.
1234 (1991) (probable cause may rest on victim's description of
assailant).
Brandenburg argues that the existence of probable cause did
not authorize the deputies to arrest him when he was physically
located on Fontenot's property. In support of his argument,
Brandenburg relies on the Supreme Court's decision in Payton v. New
York, 445 U.S. 573, 100 S.Ct. 1371 (1980). Payton teaches that the
Fourth Amendment prohibits law enforcement officers from making a
warrantless and nonconsensual entry into a suspect's home in order
to make a routine felony arrest. Id. at 576, 100 S.Ct. at 1374-75;
see also United States v. Richard, 994 F.2d 244, 247 (5th Cir.
1993). The decision rests on the heightened interest of privacy
associated with being free from intrusion in one's home or
dwelling. Id. at 587-88, 100 S.Ct. at 1380-81. However, this
Court has held that the expectation of privacy recognized in Payton
does not exist when a felony suspect stands at the open door of his
residence or is otherwise accessible to the public. See United
States v. Carrion, 809 F.2d 1120, 1128 (5th Cir. 1987) (doorway of
hotel room); United States v. Holland, 755 F.2d 253, 255 (5th
Cir.), cert. denied, 471 U.S. 1125, 105 S. Ct. 2657 (1985) (common
9
hallway); United States v. Mason, 661 F.2d 45 (5th Cir. 1981)
(front door of home).
The deputies made initial contact with Brandenburg when
Brandenburg sat in his car on a public street in front of his home.
The deputies rushed the car with guns drawn and ordered Brandenburg
out of the vehicle. They announced their intention to detain him,
and Brandenburg exited the vehicle with his hands up. When
Brandenburg ascertained that the deputies did not have a warrant,
he fled and was temporarily tackled by Deputy Guidry before he
reached Fontenot's carport. In California v. Hodari, ____ U.S.
____, 111 S. Ct. 1547 (1991), the United States Supreme Court
confirmed that a seizure occurs for Fourth Amendment purposes when,
by physical force (however slight) or a show of authority, a law
enforcement officer restrains the liberty of a citizen in some way.
Here, Brandenburg submitted to a show of authority in a public
street when he exited his vehicle with his hands up upon police
orders. He was thereafter subjected to physical force in a
publicly accessible area when Deputy Guidry attempted to subdue him
as he fled across Fontenot's yard. Thus, contrary to plaintiff's
arguments, the deputies' seizure of Brandenburg did not occur in a
private place. Because Brandenburg did not have a protectable
privacy interest in the public street or in Fontenot's yard, and
the deputies had probable cause to believe that he had committed a
crime, their seizure of Brandenburg was lawful.
Brandenburg's subsequent escape to the safety of the carport
does not change matters. Brandenburg had no expectation of privacy
10
in the carport either. It was open to public view and accessible
from the street. Moreover, even if Brandenburg had had an
expectation of privacy when standing under the carport, a felony
suspect cannot defeat a lawful arrest begun in a public place by
escaping into a private place. See United States v. Santana, 427
U.S. 38, 43, 96 S.Ct. 2406, 2409-10 (1976). The deputies were
therefore well within the bounds of the Fourth Amendment when they
detained Brandenburg while he stood under the carport.
Brandenburg's Fourth Amendment excessive force claim merits
little discussion. To prevail on his claim, Brandenburg was
required to prove a significant injury, which resulted directly and
only from the use of force that was clearly excessive to the need,
and that the excessiveness of the need was objectively
unreasonable.3 See Johnson v. Morel, 876 F.2d 477 (5th Cir. 1989)
(en banc). Although the standoff between the deputies and
Brandenburg lasted over half an hour, the only force actually used
against Brandenburg was Deputy Guidry's effort to tackle him.
Brandenburg suffered no significant injury from this attempt to
subdue him. Moreover, Guidry's use of nondeadly force was
objectively reasonable in light of Brandenburg's history of
violence and what could reasonably have been viewed as an effort on
Brandenburg's part to escape. See Graham v. Connor, 490 U.S. 386,
3 Because the events in this case took place in 1991, the
objective reasonableness of the defendants' use of force must be
evaluated under the significant injury test that prevailed at the
time. See Harper v. Harris County, 21 F.3d 597 (5th Cir. 1994);
compare Hudson v. McMillian, __ U.S. __, 112 S.Ct. 995 (1992)
(overruling the significant injury prong in an Eighth Amendment
excessive force context).
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396, 109 S.Ct. 1865, 1871-72 (1989).
In sum, we find that the seizure and force used in this case
were reasonable under the circumstances. The deputies are
therefore entitled to qualified immunity for their actions against
Brandenburg. The magistrate judge's order is thus affirmed to the
extent that it granted judgment as a matter of law in favor of the
deputies and against Brandenburg.
B. Fontenot's Claims
Fontenot argues that the deputies violated the Fourth
Amendment by entering her home without a warrant. At the time of
the incident in this case, it was well-established that a
warrantless, nonconsensual entry into a home is presumptively
unreasonable. Payton, 445 U.S. at 576; 100 S. Ct. 1374-75.
Hartsfield v. Lemachs, 50 F.3d 950, 954 (11th Cir. 1995); United
States v. Curry, 751 F.2d 442, 448 (1st Cir. 1984); cf. Vasquez v.
Snow, 616 F.2d 217 (5th Cir. 1980) (finding a violation of the
Fourth Amendment where officer entered third party's home without
warrant or probable cause to believe suspect was at that location).
Such an entry may, nonetheless, be reasonable when law enforcement
officers have probable cause to believe a felony suspect is at the
location and exigent circumstances exist. The Court has already
determined that the deputies had probable cause to arrest
Brandenburg. They also had probable cause to believe that
Brandenburg would be at Fontenot's home since that was where he
resided. However, there was no evidence to suggest, and defendants
12
do not contend, that exigent circumstances were present at the time
they arrived at Fontenot's home. Rather, defendants assert that
Fontenot implicitly consented to their entry and search for
Brandenburg by opening the door to her home. We disagree.
Fontenot was abruptly awakened in the middle of the night by
bright lights shining through her bedroom window. When she went to
investigate what was happening, she was confronted by three
uniformed officers. A fourth officer was standing at her back
door. At least two of the officers had weapons pointed directly at
her. The deputies did not knock or ask if they could enter the
residence. Instead, one of the deputies identified himself as a
law enforcement officer and ordered Fontenot to open the door.
Faced with this show of authority, Fontenot could have reasonably
concluded that she had no choice but to comply with the order or
risk being subjected to physical, possibly deadly, force. See
United States v. Edmondson, 791 F.2d 1512, 1515 (11th Cir. 1986)
(suspect does not consent to entry of residence when consent is
prompted by show of official authority). Accordingly, Fontenot's
act of opening the door did not amount to consent, and the deputies
were not free to enter her residence.
The unreasonableness of the deputies' conduct is further
demonstrated by their subsequent refusals to leave the residence
after entry. Fontenot testified that on several occasions, she
told the deputies that "they needed to leave." These statements
were sufficiently explicit to put the deputies on notice that their
presence was unwelcome and their conduct unlawful. They,
13
nevertheless, failed to leave the premises. The defendants' only
response to justify their refusal to leave is that their entry into
Fontenot's home did not amount to a seizure violative of the Fourth
Amendment. This argument misses the mark. The place of the
intrusion, Fontenot's home, "is entitled to the strictest Fourth
Amendment protection against unwarranted intrusions." Wanger v.
Bonner, 621 F.2d 675, 682 (5th Cir. 1980). Under the circumstances
present here, the deputies' mere presence in the home violated the
Fourth Amendment, and they were therefore obligated to leave when
instructed to do so.
Moreover, as explained above, there was ample evidence of an
official show of authority on the part of the deputies to warrant
the conclusion that Fontenot's liberty was restrained. In order
for a seizure to occur, there must be a restraint of liberty
accomplished by means of either physical force or the submission to
the assertion of authority. California v. Hodari D., __ U.S. __,
111 S.Ct. 1547, 1550-51 (1991). Here, the deputies' guns were
drawn and pointed. They ordered Fontenot to give them immediate
access to her home. They ignored her requests for them to leave
her home. While the deputies may not have intended to restrain
Fontenot's liberty in their efforts to locate Brandenburg, their
conduct suggested otherwise. Further, Fontenot submitted to their
show of authority when she did not physically resist the deputies
or attempt to flee.
The magistrate judge was obligated to enter the judgment of
the jury if reasonable persons could come to contrary conclusions
14
on the basis of the evidence presented at trial. Molex, Inc., 759
F.2d at 478. For the reasons explained above, the evidence in this
case did not mandate the conclusion that Fontenot voluntarily
consented to the entry of her home or to any other restraint of her
liberty. Since there was neither consent nor exigent circumstances
to justify the deputies' conduct, their warrantless entry into
Fontenot's home and subsequent refusals to leave were objectively
unreasonable and violated the Fourth Amendment's proscription
against unreasonable searches and seizures. We therefore reverse
the magistrate judge's order granting judgment as a matter of law
in favor of the defendants with respect to Fontenot's Section 1983
claim.
We are thus left to consider the propriety of the magistrate
judge's order conditionally granting the defendants a new trial on
Fontenot's Section 1983 claim. Orders granting or denying a new
trial are reviewed under an abuse of discretion standard. Allied
Bank-West, N.A. v. Stein, 996 F.2d 111, 115 (5th Cir. 1993).
However, we will exercise "broad review" of a court's grant of a
new trial"