concurring in part and dissenting in part.
I concur with the panel majority’s decision affirming the district court’s grant of summary judgment dismissing the appellant’s cause of action against the county officials charging conscious indifference to his medical needs and the majority’s disposition of appellant’s assignment of error anchored in defense counsel’s conduct in peremptorily dismissing minority members of the jury panel during voir dire examination. However, because the majority has failed to consider the totality of the facts impacting the officers’ entry into the Coffey residence and existing legal precedent concerning the plaintiff’s complete failure of proof to support his reasonable expectation of privacy while in the Coffey residence, I must respectfully dissent from the majority’s resolution remanding the case to the district court for retrial because it refused to give appellant’s requested but unnecessary jury instruction concerning a warrantless entry into the Coffey residence to arrest Jones.
The majority correctly observes that the Fourth Amendment prohibits law enforcement officers from entering a residence, absent a warrant, unless the police officers are faced with exigent circumstances. See New York v. Quarles, 467 U.S. 649, 653 n. 3, 104 S.Ct. 2626, 2630 n. 3, 81 L.Ed.2d 550 (1984); Segura v. United States, 468 U.S. 796, 811-12, 104 S.Ct. 3380, 3389, 82 L.Ed.2d 599 (1984); Welsh v. Wisconsin, 466 U.S. 740, 749-50, 104 S.Ct. 2091, 2097-98, 80 L.Ed.2d 732 (1984); Steagald v. United States, 451 U.S. 204, 221-22, 101 S.Ct. 1642, 1652, 68 L.Ed.2d 38 (1981); Payton v. New York, 445 U.S. 573, 590, 100 S.Ct. 1371, 1382, 63 L.Ed.2d 639 (1980); see also United States v. Sangineto-Miranda, 859 F.2d 1501, 1511 (6th Cir.1988); United States v. Morgan, 743 F.2d 1158, 1161 (6th Cir.1984), cert. denied, 471 U.S. 1061, 105 S.Ct. 2126, 85 L.Ed.2d 490 (1985). Exigent circumstances exist when the police officers are engaged in the “hot pursuit” of a criminal suspect; when the officers have reason to expect personal endangerment and a threat to members of the public; or when immediate action demands the protection of vital evidence from destruction or to foreclose the escape of a criminal suspect. See Morgan, 743 F.2d at 1162-63.
In the case at bar, the district court did not err in concluding that the evidence developed during the course of the trial was insufficient as a matter of law to warrant a Fourth Amendment violation jury instruction as a result of the officers’ entry into the Coffey residence to arrest Jones without obtaining an arrest warrant because, in the first instance, “exigent circumstances justified the entry into the house without warrant.” As the majority correctly concludes, in a civil action ordinarily this is an issue of fact which properly should be resolved by a jury. See, e.g., Yancey v. Carroll County, Ky., 876 F.2d 1238, 1244 (6th Cir.1989); Reardon v. Wroan, 811 F.2d 1025 (7th Cir.1987); Llaguno v. Mingey, 763 F.2d 1560, 1565 (7th Cir.1985) (en banc); Hindman v. City of Paris, Texas, 746 F.2d 1063, 1067-68 (5th Cir.1984), cert. denied sub nom. Easton v. Boulder, 479 U.S. 816, 107 S.Ct. 71, 93 L.Ed.2d 28 (1986); McKenzie v. Lamb, 738 F.2d 1005, 1008 (9th Cir.1984); Losch v. Borough of Parkesburg, 736 F.2d 903, 909 (3rd Cir.1984); B.C.R. Transp. Co. v. Fontaine, 727 F.2d 7, 10 (1st Cir.1984); Nix v. Sweeney, 573 F.2d 998, 1001-01 (8th Cir.1978), cert. denied, 444 U.S. 929, 100 S.Ct. 271, 62 L.Ed.2d 186 (1979); Giordano v. Lee, 434 F.2d 1227, *11331230 (8th Cir.1970), cert. denied, 403 U.S. 931, 91 S.Ct. 2250, 29 L.Ed.2d 709 (1971); cf. Arrington v. McDonald, 808 F.2d 466, 468 (6th Cir.1986) (inference). It is equally clear, however, that in a case where the underlying facts are essentially undisputed, and where a finder of fact could reach but one conclusion as to the existence of exigent circumstances justifying the officers’ entry into a dwelling to effect a warrant-less arrest, the issue may be decided by the trial court as a matter of law. See Reardon, 811 F.2d at 1029-30; Gramenos v. Jewel Co., 797 F.2d 432, 436, 438 (7th Cir.1986), cert. denied, 481 U.S. 1028, 107 S.Ct. 1952, 95 L.Ed.2d 525 (1987); Williams v. Kobel, 789 F.2d 463, 470-72 (7th Cir.1986); Llaguno, 763 F.2d at 1565; Moore v. Marketplace Restaurant, Inc., 754 F.2d 1336, 1344-47 (7th Cir.1985); McKenzie, 738 F.2d at 1008; Nix, 573 F.2d at 1001; compare Hindman, 746 F.2d at 1067-68.
In the case at bar, an examination of the record demonstrates that the district court correctly deduced from the uncontradicted facts that, as a matter of law, the police officers justifiably concluded that they were faced with exigent circumstances. The testimony evidenced the fact that officers James Lewis (Lewis) and Gary Ashby (Ashby) were engaged in “hot pursuit” of Jones, from the time they had arrived at the factory, immediately after Jones had shot at Linda Henderson (Henderson) and fled, until he was apprehended inside of the Coffey residence; albeit that the pursuit was intermittently interrupted during the twenty to thirty minutes that elapsed between the Henderson shooting and his arrest to question witnesses as to his activities, his propensity for violence and his probable whereabouts. The officers however never abandoned pressing their continuous effort to seek out and apprehend a dangerous “shooter” who was known to have a shotgun in addition to the revolver that he had discarded during his flight from the scene of his latest shooting. The evidence failed to suggest that officers Lewis and Ashby departed from their pursuit to apprehend a dangerous individual from the time Jones had fled the factory until they arrested him.
[W]hen the occasion for arrest arises while the police are already out in the field investigating the prior or ongoing conduct which is the basis for the arrest, there should be a far greater reluctance to fault the police for not having an arrest warrant. Here, the presumption should be in favor of a warrantless arrest rather than against it....
2 W. LaFave, Search and Seizure § 6.1(c) (1987); compare United States v. Santana, 427 U.S. 38, 42-43, 96 S.Ct. 2406, 2409-10, 49 L.Ed.2d 300 (1976); Warden v. Hayden, 387 U.S. 294, 298-99, 87 S.Ct. 1642, 1645-46, 18 L.Ed.2d 782 (1967); United States v. Elkins, 732 F.2d 1280, 1284-85 (6th Cir.1984); United States v. Holland, 511 F.2d 38, 43-46 (6th Cir.), cert. denied, 421 U.S. 1001, 95 S.Ct. 2401, 44 L.Ed.2d 669 (1975).
Moreover, the uncontradicted facts reflected that the officers had sufficient cause to believe that Jones was an immediate danger to themselves and the public. They had statements from witnesses at the scene of the factory shooting that Jones had recently also discharged a shotgun blast into the rear of a vehicle occupied by his children and driven by his estranged wife. Upon arriving at the Coffey residence and after having observed Jones peering from a second story window, and having been alerted by reliable sources of appellant’s access to a shotgun and possibly other weapons apart from the revolver that he had fired at Henderson, and knowing that he was a dangerous “shooter” who was fleeing from arrest, the officers were reasonably justified in fearing for their own safety and the safety of the public.1 The circumstances confronting the pursu*1134ing officers satisfied every element of the classical textbook definition of “exigent circumstances.”
The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others. Speed here was essential, and only a thorough search of the house for persons and weapons could have insured that ... the police had control of all weapons which could be used against them or to effect an escape.
Hayden, 387 U.S. at 298-99, 87 S.Ct. at 1646; compare Mincey v. Arizona, 437 U.S. 385, 392-93, 98 S.Ct. 2408, 2413, 57 L.Ed.2d 290 (1978) (“The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.”) (quoting Wayne v. United States, 318 F.2d 205, 212 (D.C.Cir.1963)); Elkins, 732 F.2d at 1285 (“The agents knew that at the time of a recent arrest, [appellant] has possessed a semi-automatic weapon and silencer_ [Cjourts should be cautious ‘in limiting the ability of police officers to protect themselves as they carry out missions which routinely incorporate danger.’ ”) (quoting United States v. Coates, 495 F.2d 160, 165 (D.C.Cir.1974) (footnote omitted)).
The conceded evidence in the instant case supported but one premise, namely that the officers reasonably concluded from the confronting events of the moment that exigent circumstances existed which justified entry into the Coffey residence to arrest a potentially armed and dangerous “shooter” who was attempting to escape arrest. Accordingly, the trial court was correct in concluding that, as a matter of law, exigent circumstances existed to support the warrant-less arrest.
An alternative, but equally significant reason which compels the affirmance of the district court’s refusal to charge the jury as to the elements of a warrantless entry into the Coffey residence to arrest Jones was his complete failure to prove any material element of his cause of action predicated upon his reasonable expectation of privacy in the Coffey residence. Jones, in his section 1983 claim, requested the trial court to instruct the jury on the elements of a warrantless entry into the Coffey residence to effect his arrest to support his Fourth Amendment right to be free from unreasonable searches and seizures. Existing precedent mandates that the burden of proving a prima facie case lodged in a violation of the Fourth Amendment’s prohibition against unreasonable searches and seizures rests upon the plaintiff. The burden is upon the plaintiff to affirmatively prove by a preponderance of the evidence his reasonable expectation of privacy in the structure which was entered by the police officers to effect his arrest without a warrant. See, e.g., Gillard v. Schmidt, 579 F.2d 825, 828 (3rd Cir.1978) (To establish an action under section 1983 based upon violation of Fourth Amendment rights, plaintiff must demonstrate “a reasonable expectation of freedom from governmental intrusion” in the residence.) (quoting United States v. Speights, 557 F.2d 362, 363 (3rd Cir.1977)); accord O’Connor v. Ortega, 480 U.S. 709, 719, 107 S.Ct. 1492, 1498-99, 94 L.Ed.2d 714 (1987) (plurality opinion); id. at 731-32, 107 S.Ct. at 1505 (Scalia, concurring); see also United States v. Salvucci, 448 U.S. 83, 91-92, 100 S.Ct. 2547, 2552-53, 65 L.Ed.2d 619 (1980); Rakas v. Illinois, 439 U.S. 128, 134, 99 S.Ct. 421, 425, 58 L.Ed.2d 387 (1978); Katz v. United States, 389 U.S. 347, 352, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967); Sangineto-Miranda, 859 F.2d at 1510; United States v. Blanco, 844 F.2d 344, 349 (6th Cir.1988); United States v. Buckner, 717 F.2d 297, 299-300 (6th Cir.1983).
“Fourth Amendment rights are implicated only if the conduct of the ... officials at issue in this case infringed ‘an expectation of privacy that society is prepared to consider reasonable.’ ” O’Connor v. Ortega, 480 U.S. at 715, 107 S.Ct. at 1497; accord Sangineto-Miranda, 859 F.2d at 1510; Blanco, 844 F.2d at 349. The Supreme Court has advised that the mere presence on premises, by itself, is insufficient to prove that a plaintiff possessed a legitimate expectation of privacy under the Fourth Amendment. Rakas, 439 U.S. at 142-48, 99 S. Ct. at 429-33. A plaintiff *1135asserting a civil action for violation of Fourth Amendment rights must accordingly introduce affirmative proof that he possessed an interest in and involvement with the residence entered which society was prepared to recognize and protect as reasonable under the circumstances. He must satisfy his burden of proof by producing evidence that he had some “control and supervision of the place searched,” United States v. Pollock, 726 F.2d 1456, 1465 (9th Cir.1984); accord Sangineto-Miranda, 859 F.2d at 1510; Blanco, 844 F.2d at 349; see also United States v. Lyons, 706 F.2d 321 (D.C.Cir.1983); United States v. Robinson, 698 F.2d 448 (D.C.Cir.1983); State v. Isom, 196 Mont. 330, 641 P.2d 417 (1982); State v. Allen, 188 Mont. 135, 612 P.2d 199 (1980), that he possessed “a key [or that] he ha[d] unencumbered access” to the residence, United States v. Nabors, 761 F.2d 465, 469 (8th Cir.), cert. denied 474 U.S. 851, 106 S.Ct. 148, 88 L.Ed.2d 123 (1985); accord Jones v. United States, 362 U.S. 257, 259, 80 S.Ct. 725, 730, 4 L.Ed.2d 697 (1960); Sangineto-Miranda, 859 F.2d at 1510; Blanco, 844 F.2d at 349; Robinson, 698 F.2d 448; United States v. Meyer, 656 F.2d 979 (5th Cir.1981), or alternatively that he “kept personal belongings at the residence.” United States v. Salvador, 740 F.2d 752, 755 n. 2 (9th Cir.1984), cert. denied, 469 U.S. 1196, 105 S.Ct. 978, 83 L.Ed.2d 980 (1985); see also Jones, 362 U.S. at 259, 80 S.Ct. at 730; United States v. Grandstaff, 813 F.2d 1353 (9th Cir.), cert. denied sub nom. Brown v. United States, — U.S. -, 108 S.Ct. 119, 98 L.Ed.2d 78 (1987); Nabors, 761 F.2d 465; Meyer, 656 F.2d 979; People v. Rodriguez, 69 N.Y.2d 159, 513 N.Y.S.2d 75, 505 N.E.2d 586 (1987); Isom, 196 Mont. 330, 641 P.2d 417; People v. Wagner, 104 Mich.App. 169, 304 N.W.2d 517 (1981).
In the case at bar, apart from the isolated, conjectured hearsay comment of Gilkey that Jones was living with Peggy Coffey, the record failed to disclose any objective evidence that he exercised any control or dominion over the Coffey domicile, by virtue of possessing an entry key to the residence, unrestricted access to that household, storage of any personal belongings or other indicia of presence in the location. On the contrary, the officers found the appellant, fully clothed, under the covers of a bed situated in the room where they had observed him peering from the window.
Since appellant has not offered facts to establish a ‘reasonable expectation of privacy’ under these factors, we have no basis for finding one.... Appellant’s counsel introduced no evidence on how long [he] had been in the house, whether he was in fact living there, if he had a key, or the nature of his relation to the owner. [0]n the basis of the record before us, we must find that appellant had no expectation of privacy in the ... home....
Robinson, 698 F.2d at 454-55; compare Buckner, 717 F.2d at 300 (no evidence in the “record to indicate that the [appellant] had a legitimate expectation of privacy”) with O’Connor, 480 U.S. at 718-19, 107 S.Ct. at 1499 (undisputed evidence demonstrated reasonable expectation of privacy). Accordingly, because of the plaintiff’s failure to introduce any evidence bearing upon the material elements of his reasonable “expectation of privacy” within the Coffey residence which anchored his section 1983 cause of action asserting a violation of his Fourth Amendment rights, the district court correctly refused to instruct the jury on that issue. See generally Price Waterhouse v. Hopkins, — U.S. -, - n. 11, 109 S.Ct. 1775, 1788 n. 11, 104 L.Ed.2d 268 (1989) (“In our adversary system, where a party has the burden of proving a particular assertion and where that party is unable to meet its burden, we assume that the assertion is inaccurate.”) (Brenan, J., plurality opinion).
Moreover, the case having been concluded, and a jury verdict having been returned, this appellate review effectively affords the plaintiff a second bite of the apple after having failed as a matter of law to prove a prima facie case as to his cause of action asserted pursuant to the Fourth Amendment. I would therefore, for the reasons set forth herein, AFFIRM the judgment of the district court in its entirety-
. The majority concludes that, because the police had recovered the pistol which Jones had fired at Henderson while in the factory from a refuse container where Jones had instructed his accomplice, Gilkey, to discard it, the officers had no basis for suspecting that Jones could be armed or dangerous. This conclusion ignores the undisputed testimony that Jones had previously fired a shotgun into an occupied automobile, and that officers Lewis and Ashby had no knowledge of the whereabouts of that weapon.