James Snyder, Plaintiff-Appellee-Cross-Appellant v. Sidney Trepagnier, City of New Orleans, Defendant-Appellant-Cross-Appellee

1415(e)(2); appropriate”. U.S.C. Plaintiff-Appellee- SNYDER, Burlington, 471 U.S. at 105 S.Ct. at James Cross-Appellant, revision, and, First, necessary, if a review place in IEP is to take

of Daniel Slocum’s al., TREPAGNIER, Sidney et 1998; agreed May parties have Defendants-Appellees, will School Board and State defendants Orleans, Defendant- participate process. in this New be allowed to (1997). Second, parties Appellant-Cross-Appellee. C.F.R. 300.344 discovery in an- apparently commenced No. 96-30935. is, ticipation of 15 June trial. It there- discovery, that, fore, likely during such Appeals, United States much of the can discover State defendants Fifth Circuit. they seek.

information May

III. reasons, subject to foregoing

For opinion, expressed this concerns AFFIRMED, and appealed from are

orders to the district court

the case is REMANDED with this proceedings consistent

for further

opinion. and REMANDED.

AFFIRMED

KING, concurring: Judge, specially Circuit opin- in the

I concur II.C,

ion, which except Parts II.B and De- implying that Louisiana dicta

contain entitled

partment of Education part all of the Slocums

recoup paying for the incurred

expenses that it during stay-put

Heartspring placement interlocutory ap-

period. these Resolution require us to address issue

peals does what circumstances whether Department’s may authorize

the IDEA during the costs incurred

recoupment of period.

stay-put Booksh, Jr., John Beresford

Robert W. Orleans, LA, Fox, Snyder. New for Zibilich, Lee, Martiny and Carac- Franz L. Russell, ci, Metairie, LA, Anna- Avis Marie Walker, Orleans, LA, belle H. New Orleans. New DeMOSS, MAGILL,* SMITH and Before Judges. Circuit SMITH, Judge: Circuit JERRY E. (“the ap- city”) City of Orleans The New U.S.C. peals Snyder by shooting of James for the Snyder Sidney Trepagnier. police officer contending the district cross-appeals, jury the submitting erred court immunity. Trepagnier’s impos- judgment insofar as it We reverse insofar liability against city but affirm es Trepagnier qualified judgment grants as the to find immunity. affirm the refusal We battery. liability for assault * Circuit, by designation. Eighth sitting Judge of Circuit

I. qualified immunity. jury The also found that Trepagnier had not committed an assault and Snyder by Trepagnier was shot the back battery. though Even concluded fleeing while on foot following had acted high-speed Although chase. precise facts Snyder, shooting it held the liable on the surrounding shooting apparent are not ground that deprivation the constitutional briefs,1 from the this much is Trepag- clear: municipal policy. caused custom or nier pursuing Snyder through the fault, specify policy did not swamps Snyder when the officer shot although Snyder’s expert witness had offered back, paralyzing him from the waist down. policies possibilities. several customs and parties disagree over whether Specifically, Snyder alleged hir- gun. had a Trepagnier testified that he saw ing screening policies and of the New Or- Snyder wielding pistol a small as he raced (“NOPD”) Department leans Police were de- through swamps. Snyder the claims that he ficient; that the NOPD enforced a “code of was unarmed and stuck in the mud when he silence” that permissive fostered a attitude event, any was shot. In gun no was ever civilians; against toward violence and that scene, recovered despite from the an exhaus- the NOPD failed to train officers in stress tive search. management put place and did not an Snyder Trepagnier, sued Joseph Officer “early warning system” signal that would Valiente, (as city and the Mayor well as the when stressed officers were about to crack. Superintendent and Police in their individual post-verdict In its sufficiency review of the capacities) and official Snyder § under 1983. evidence, the the district court relied on the Trepagnier also sued battery for assault and city’s failure to management enact a stress under Louisiana law. The case was tried to program for supporting officers as lia- jury. verdict, a Before the the court dis- bility under Snyder’s Valiente, against missed claims the jury $1,964,000 The Snyder awarded —the Mayor, Superintendent, and the Police leav- past amount of his and future medical ex- ing Trepagnier city only and the remain- penses. Snyder Yet it nothing awarded for ing defendants. past physical pain and future suffering, and jury The rendered its verdict in the form nothing past for and pain future mental and special interrogatories. answers to It suffering, nothing permanent for physical Trepagnier found that Snyder’s had violated function, disability and loss of nothing and rights protected by but was pleasures.2 for loss of life’s complicated by 1. Our city’s Trepagnier review is caught failure appellee when he became to include a statement of the mud, facts its brief. stuck in the straddled him as he laid Fed.R.App.P. 28(a)(4), This omission violates placed gun Snyder’s [sic] down and a to Jim requires which "a statement of the facts relevant Trepagnier yelled head. ion, compan- review, presented appropri- to the issues for with Taylor, Todd to come back or he would record,” ate references to the and 5th Cir.R. Snyder. Snyder Taylor shoot keep told run- 28.3(a)(2), requires which a statement of facts. me, ning, gun. he can’t shoot I don’t record, appropriate With references to the Trepagnier began screaming push- Officer and Snyder presents following facts: head, ing gun threatening in the side of his [Trepagnier] Snyder shot James in the back Snyder, eventually Taylor to shoot and came unarmed, Snyder while Mr. stuck in the Trepagnier Snyder put back. had his face in knees, offering mud to his and no resistance mud, run; asking why Snyder he had an- arm, Snyder only whatsoever. Mr. one Pennsylvania. swered that he was wanted in carrying sunglasses which he was and two point Snyder range At that he shot at close packs cigarettes that were found on the why the back. asked him he did that ground scene, next to him at the so that he said, swamp’s and "the a hell of a carrying gun. could gun not have been No die, place to ain’t it?” despite was ever found on the scene a thor- omitted.) (Emphasis and record references ough systematic using and search officers grid pattern. stipulated It was categories jury’s These were all on the list of shooting Snyder, pull "in James intended to special interrogatories. trigger, "$0” The filled in and that this was result of inadvertedness, mistake, negligence, categories. for each of these or acci- dent.” post-trial Corp., Co. v. Eaton filed motions. Both sides Cir.1993). city’s motion to reconsider court denied by entering jury verdict and reconcile A. city judgment dismissing the a matter law, grant or—in the alternative —to Supreme Court has established damages.3 on both and requirements holding a new trial two fundamental for granted Snyder’s motion for inadequate hiring The court then liable for Acknowledging that damages. training policies: culpability and causa new trial First, only municipal policy in tion. must have damage awards can be overturned circumstances, adopted with “deliberate indifference” been exceptional” “extreme and consequences. to its or obvious Sec known present, such were re- court concluded that ond, municipality “moving must be the marking: “It is inconceivable for force” behind the constitutional violation. an who has been shot find that individual back, multiple operations, subjected to Monell, held local the Court that a and will be hospitalized for several months government not be held liable under of his life to wheel confined the rest respondeat superior for constitutional torts pain suffering per- no chair endured In- by municipal employee. committed disability.” manent stead, govern- is when execution of a “[I]t custom, by policy or

ment’s whether made its by lawmakers or those edicts or acts whose II. may fairly represent policy, said to official be injury government inflicts the that the as an city that the evidence contends § entity responsible under 1983.” 436 finding of support to a was insufficient 694, U.S. at 98 S.Ct. at 2037-38. Monell set New York liability § Monell v. 1983 well, requir- high a for as threshold causation Servs., 658, 98 City Dept. Soc. 436 U.S. ing plaintiff the munic- establish that (1978).4 2018, 611 We S.Ct. 56 L.Ed.2d policy “moving the force” behind ipal the sup only if it is not overturn a verdict constitutional violation. Id. evidence, meaning ported by “evi substantial weight require quality such and that reason clarified the Monell dence of The Court Harris, v. 489 U.S. men the exercise ments Canton able and fair-minded (1989), 378, 109 1197, 103 412 might L.Ed.2d a impartial reach different S.Ct. (failure theory arising 411 case under a Boeing Shipman, conclusions.” Co. train) Cir.1969) (en (5th bane), 365, Snyder presses here. The over to that F.2d 374 circumstances, that, in limited a grounds by v. Court held ruled on other Gautreaux (5th Marine, Inc., held to municipality can be liable for failure 107 F.3d 331 Scurlock Cir.1997) (en banc). seeking police Plaintiffs to train its officers. We accord all reason theory nonmovant, prove must first we win under this to the and able inferences poli municipal link the only direct causal between if no could reverse deprivation; they Weigh cy constitutional Right Scale and the at the verdict. arrived event, "[Tjhis any attempted court has to reconcile the verdict as directed verdict. 3. The court 50(b) failing city by compliance to required violated 1983 follows: The strict with Rule management program. This fail- a stress enact noncompliance where and has excused technical police group offi- of overstressed ure created a requirement purposes of the have been satis the cers, Accordingly, Trepagnier. one of whom was purposes when the court ... are met fied. These Snyder, behaving he was when shot grounds plaintiff the are alerted trained, improperly over- an—“as the evidence is which the defendant contends overly ex- officer would be stressed worked case prior the of the to submission insufficient pected those circumstances.” to act under De, jury.” Francaise the Greenwood v. Societe - Cir.), denied, 1239, cert. F.3d 1244 city Snyder suggests this claim waived U.S.-, 558, (1997). L.Ed.2d 400 by failing at the move for a directed verdict city challenged concedes that required by Fed.R.Civ.P. close of the evidence specific sufficiency on "three of the evidence 50(b). agree moved for Both sides grounds" of the case to prior to the submission "judgment pleadings” at close of the on the evidence; jury. city says was a motion for this city consciously negligence then must establish that the that mere fell short of the “delib policy reflecting enacted “deliberate indif- erate indifference” standard and that “[i]n rights ference” to the attach, of its municipal liability order for plain citizens. Id. at at 1205. S.Ct. tiffs must simply offer evidence of not decision, concluded: by but a ‘decision itself to ” today inadequacy (quot We hold violate the Constitution.’ Id. at 759 po- Canton, 395, 109 training may ing City lice serve as the basis for 489 U.S. at S.Ct. (O’Connor,J., liability only concurring)). where the at 1208 failure to train amounts to deliberate indifference to Bullins, Similarly, in Stokes rights persons police whom with (5th Cir.1988), county we held that a contact____ Only come into where a fail- request failed to a National Crime Informa- ure to train reflects a “deliberate” or “con- tion check applicants Center did by municipality scious” choice “poli- —a not act with deliberate indifference toward cy” prior as defined our cases—can rights of its though citizens —even con- city be liable for such a failure under ducting a check would have disclosed § 1983. (who applicant plaintiff) later shot the 388-89, 109 Id. at S.Ct. at 1204-05. history assault, of fifteen arrests for armed The Court further clarified Monell robbery, and other misdeeds. We saluted County Board Bryan Commissioners efficiency of an NCIC check but shied , Brown, County Old. v. 117 away anointing it as a constitutional (1997), 137 L.Ed.2d 626 another requirement. Id. at 275. arising case theory under a advanced municipality’s alleg- the instant case—the B. edly inadequate screening hiring policies. There, reviewing sufficiency In county the Court held that the of the evi- dence, hire, municipal poli- liable for sheriffs decision to we examine the three adequate without screening, might support an cies offered at trial that officer who using finding liability. later was accused of of Applying Bryan excessive force. Monell plaintiff County’s “rigorous The Court noted that the requirements culpabili- had “not of ty causation,” at-, demonstrated that [the sheriffs] decision re- and disregard high flected a conscious for a risk we conclude that the evidence is that [the officer] would use excessive force in uphold insufficient to verdict. plaintiffs] federally protect- violation of [the -, right.”

ed Id. at at 1394. S.Ct. Bryan County underscores the need for Snyder alleges city’s police that plaintiffs Monell to establish both the causal hiring policies deficient were because candi force”) (“moving link city’s degree and the of backgrounds inadequately dates’ were inves (“deliberate culpability indifference” to feder- tigated. Most of evidence came ally protected rights). requirements These Ginger, from James who was offered as an diluted, must not be for a court fails “[w]here expert police opera witness the field of rigorous requirements to adhere to culpa- of Ginger tions and administration. observed causation, bility municipal liability and col- city that overlooked two blemishes on lapses respondeat superior liability.” into Id. Trepagnier’s application: He had admitted to Accordingly, high jacket we stealing having have demanded a and to smoked mari proof imposing standard of before two-and-a-half-year period. Monell huana over a Moreover, municipality. on a In Gonzalez v. did not conduct oral inter Dist., Indep. Ysleta Sch. 996 F.2d 745 views but relied on written statements from Cir.1993), we Trepagnier’s held that a school did not neighbors. Finally, board friends and act with Ginger charged although deliberate indifference to the consti- had a rights tutional psychologist perform of “personality schoolchildren when it test” on failed to remove from Trepagnier, the classroom a teach- form the test did not include er fondling psychologist’s accused of students. We noted room for the narrative inter- specif- concerning introduced evidence what he Trepagnier’s nor it note he

pretation, did score, terms the “Pembrook incident.” six graded pass/ ic because the tests were years Snyder’s shooting, Trepagnier before Ginger fail. these omissions testified (while grabbed off-duty) verbally and abused city’s screening policies fell that the indicated Pembrook, just in a Herman who had been standards,” providing thus short of “national girl- involving Trepagnier’s accident car liability. basis officers, present at acci- friend. Other Bryan evidence is insufficient This site, Trepagnier. dent restrained Pembrook “[o]nly County, where the Court held complaint Municipal filed with Office adequate scrutiny applicant’s of an where (a city Investigation agency independent of policy- background would lead NOPD), but that office dismissed the plainly obvious maker to conclude that complaint, and Pembrook never filed criminal appli- to hire the consequence of the decision charges. deprivation of a third would cant be Ginger testified that the fact right federally protected can the offi- party’s would threaten and intimidate a civilian adequately ap- scrutinize the failure to cial’s front of his fellow officers revealed the exis- in- plicant’s background constitute ‘deliberate only of a This was the tence code silence.6 ” at-, at 1392. Id. difference.’ complaint against Trepagni- filed citizen ever county not liable The held that the Court er, hired in who was officer, by police even for a tort committed remaining establishing evidence hired the officer de- though the sheriff had came in the form of assorted code silence record, lengthy including as- spite a criminal policy appears papers reports. It arrest, public battery, resisting sault and Ginger interpret no one save was asked concluded drunkenness. materials, many of which were discuss these background between the “[t]he connection hearsay. excluded as specific applicant and the con- particular single support on strong.” relies case Id. stitutional violation must premising a code silence Trepagnier had admitted two nonviolent Borger, theory: Grandstaff jacket smoking mar- stealing a offenses: (5th Cir.1985). There, imposed we F.2d 161 evidence, Snyder’s On this claim ihuana. municipal liability policy “prevalent for a city’s screening policies inade- were that the group when a officers recklessness” Bryan County quate fails the test: fugitive, a man for a surrounded mistook plaintiffs injury “plainly be obvious con- the him, Grandstajf has not and killed him. sequence” hiring of decision.5 the For enjoyed application in Circuit. wide this distinguished it example, in Coon v. Led we 2. (5th Cir.1986), better, 1158, 1161 complaint next is noting “Grandstajf affirmed highly peculiar that fos set against NOPD enforced a “code of silence” a Texas on a facts____ Grandstajf panel empha violence of The permissive attitude toward tered case, extraordinary facts allegation, of To this sized against civilians. bolster words, city's impunity. Ginger’s psychological wards with In other argument citizens 5. testing way, of standards” —thus to he has to fell short "national for the officer behave that it____ Bryan County, violating rejected get away 1983—was It indi- believe he can with -, 117 S.Ct. at in that 520 U.S. at protective of its officers. cates a culture that is hiring require- Ginger seeks to "constitutionalize very deeply- It the existence of a indicates have elected not to that States themselves ments ... of a code within rooted code silence (refus- Stokes, impose.” 844 F.2d at 275 See also that, regardless police department what designate background ing an check to NCIC behavior, report police officer does one requirement). police It testify against officer---- another agencies, but that indi- most exists in Ginger concluded: the New Or- the code of silence in cates that to exhibit that kind of behavior For someone Department operating is leans Police remarkably supervisor of is unusual front his attempt citi- will to assault level that officers requires policing.... the officer to [T]hat supervisors. zens front their violence to- he can behave with believe that applied only analysis equally psychiatric counseling its can be to before the officer exploded. Ginger extreme factual situations.”7 did not claim that such inju- system prevented Snyder’s would have shooting Snyder, fleeing who was ry, but it would have reduced the likelihood police pursuit, hardly rises to the level officer, by making Trepagnier “a much better “extraordinary pre- factual circumstances” much more control and much less like- under particularly given sented Grandstaff — ly Snyder shooting.” to enter into the suggesting absence of a culture evidence sum, In recklessness NOPD. Canton, City In support evidence was insufficient to Monell 412, the articulated 103 L.Ed.2d theory. on a code-of-silence the test for when Monell can result inadequate training. opinion quoting length: worth Snyder’s primary We now turn to may contrary It seem to common sense to argument liability: for Monell actually municipality assert that a will NOPD failed to train officers in stress man policy taking steps of not to agement adopt “early to an failed warn employees. may happen train But it its ing system” signal that would when an officer light assigned spe- that in of the duties to appears was about to “crack.” This to be the employees cific officers or the need for basis on the district court concluded which obvious, training more or different is so supported by that the verdict was the evi inadequacy likely and the so to result in dence. The court noted: rights, the violation of constitutional Specifically, supported the evidence a con- policymakers of the can im- clusion that Officer was deliberately be said have been indiffer- trained, overworked, properly and stressed ent to the need.... practices due to unconstitutional city’s liability, resolving the issue of a directly which led to the constitutional adequacy the focus must be of the on deprivation Apparently, involved. training program in relation tasks deprivation the constitutional felt perform. particular officers must That disregard not due to intent or wanton particular unsatisfactorily officer Trepagnier’s part im- but that he was trained will not suffice to fasten lia- alone overly properly trained or stressed. bility city, on the for the officer’s short- Trepagnier’s came Evidence stress level comings may have resulted from factors lay from two sources. First was the testimo- faulty training program.... other than a Pembrook, ny sergeant who stated that a prove Neither will it suffice that an Trepagnier’s aggressive excused behavior injury or accident could have been avoided explaining long worked if an officer had had better or more train- hours considerable stress. ing, equip sufficient to him to avoid the was what terms “an excessive Second particular injury-causing conduct. injuries number of to the dominant hand (footnote 390-91, Id. at 109 at 1205-06 S.Ct. effecting while arrest.” omitted). and citations According Ginger, Trepagnier’s person- to Moreover, unusually high proof nel file revealed an number of we have held that of ordinarily injuries injuries single a a incident is insuffi to his hand: five over violent three-year period. municipality officers are cient to hold a liable for inade Because quate training. plaintiff trained to strike with their baton rather than must demon hand, higher-than-average pattern their a strate “at least a of similar incidents number injuries injured ... quick temper. hand indicate a in which the citizens were to early-warning policy requisite mu Ginger also testified that an establish the official to system caught Trepagnier’s nicipal liability would have under section 1983.” Rodri situation, Avita, 552, hand-injury highlighting guez need 554-55 Stokes, (refusing apply Grandstaff). 7. See also 844 F.2d at 274 n. 8 to Cir.1989) (internal testimony failed quotation Ginger’s citation that New Orleans omitted). unsupport- meet was to “national standards” by any establishing city’s pur- ed facts City at Under Canton portedly bad motive. 1205, 389, prove at in order 109 S.Ct. to indifference, city’s Snyder must deliberate “moving Proof sim- force” causation was train reflects a “de show that the failure to ilarly absent. evidence did not establish endanger choice to liberate” or “conscious” city’s link failure even remote between the rights.8 Ginger constitutional contended management program to enact a stress high city dangerously had notice of the Snyder’s injury, meeting it so fell far short of throughout the NOPD based stress levels “rigorous” “stringent” re- causation Trepagni incident 1986 and Pembrook Bryan County. quirements demanded in injuries years. hand over three er’s five Moreover, Ginger’s theory, any under violent by by officer be act could “caused” accept proves Even if that this evidence we stress, by in turn be which would “caused” stressed, dangerously there Trepagnier was management pro- the absence of stress concerning the probative no evidence was gram. adopt to this line of reason- Were we There level in the NOPD as whole. stress § any ing, might be liable under pattern practice no of a evidence way time an officer acted in a that could be by over- constitutional violations committed resulting from stress. We characterized There police officers. stressed New Orleans reject requirement. as a constitutional this showing city was no that the evidence high supposedly stress levels aware of the support There evidence was insufficient to of a or knew that the absence NOPD imposition of Gin- likely to management program was stress management theory. ger’s There was stress endanger rights of its citi- the constitutional to con- no evidence of deliberate indifference short, totality of zens. the evidence rights. evidence stitutional Nor was there approach does not even Canton the absence supporting a causal link between inadequacy “so obvi- that the be standard: Sny- management program and of a stress likely the violation ous” and “so to result injury. No reasonable could der’s 390, rights,” 489 U.S. at of constitutional concluded otherwise. 1205, can said be deliberately indifferent. have been III. that, Furthermore, emphasized we have ma- prove municipality’s seeking when A. motive, plaintiffs introduce levolent must Snyder argues that the district merely the of an opinion than more evidence submitting court erred Bullins, expert In Stokes witness. immunity jury. Trepagnier’s qualified (5th Cir.1988), court F.2d the district disagree. immunity “or We While single testimony primarily relied on the long dinarily the court should be decided holding municipali- expert witness trial,” Bryant, 502 Hunter v. U.S. before disagreed, remark- ty violated 1983. We 537, 116 L.Ed.2d 589 expert’s opinion should not ing that “an trial, (1991), until if issue not decided alone sufficient establish goes to the not waived but the defense is alleged by municipality in a ease of ‘fault’ objective jury, “must omissions, which determine support the infer- where no facts contrary legal officer’s conduct [the] reasonableness motives were ence that the town’s dispute.” construing in Melear by the facts Id. at to constitutional standards.” on limitations gave example train in an of when officers 8. The Canton Court Garner, force, deadly Tennessee v. the use see from a failure to Monell attach 1694, (1985), 1, 85 L.Ed.2d 1 example, city policymakers 471 105 S.Ct. know to U.S. train: "For obvious,' do that failure to certainty can be to be ‘so will be said that their officers moral ‘deliberate properly be characterized as required fleeing so could to arrest felons. The has firearms, rights.” 489 U.S. to constitutional part allow indifference’ to armed its officers with 10, Thus, S.Ct. n. 10. at 390 109 at 1205 accomplish the need to n. them this task. to 800 (5th Cir.1989) 1177, likely difficulty largely pro Spears,

v. 862 F.2d 1184 cause of the (footnote omitted). So, apparent “if ... remain duced the conflict.” v. there Griffin (5th Cir.1973). Matherne, 911, 471 F.2d 915 disputed issues of material fact relative to instructed, immunity, jury, may Only if the case that will properly there is no view of City jury’s may we question.” Presley decide the v. Ben make the answers consistent Cir.1993).9 brook, (5th 405, 4 F.3d 410 set aside its decision. Id. Here, important questions factual re- There is no inherent conflict between Specifically, jury mained for trial. need- finding finding and a of excessive force sequence ed to determine what of events immunity. Glossip, qualified In Brown v. occurred, and, particular, whether (5th 871, Cir.1989), we 878 F.2d 873-74 gun or, actually if had a he did not have a squarely qualified immunity is held “that — gun, Trepagnier reasonably believed whether monetary liability to available as defense Accordingly, there is no doubt that he did. objectively an use of exces- unreasonable properly to the district court decided submit sive force under the Fourth Amendment.” immunity jury. qualified the issue of to the components There are two to the “ (1) qualified immunity clearly inquiry: ‘[ ] B. (2) ] established law and the information the [ A is whether the related ” Hunter, possessed.’ ... officers qualified immunity issues of 227, (quoting at at 536 v. Anderson or, should have been fashioned as one issue 635,-641, 3034, Creighton, 483 U.S. them, as the district court submitted as two (1987)). 3040, co 97 L.Ed.2d 523 This was separate as two is issues. submission by gently explained Judge Higginbotham in dispute jury’s sues whether the results Melear, (Higginbotham, at 862 F.2d 1187-88 are answers irreconcilable. J., concurring): possible jury for the “[I]t jury decided both that that, although to actual circum find force, thereby depriving Sny- used excessive justify stances of the search did not rights, der of his constitutional and that behavior, ap officer’s circumstances reasonable belief his peared justified to the would have officer actions would not violate constitu- is, search. That the officer could make a rights. an- tional On the basis these constitutionally based swers, granted Trepagnier the district court upon misperception.” factual Id. If, however, immunity. finding might possible jury “[I]t for the to resolve finding of excessive force is tantamount to a ambiguities factual so as to conclude that a reasonableness, objective of no the answers place, constitutional violation took even interrogatories hope- to the two would be jury though possible it is not for the conflict, with, lessly requiring a new trial ambiguities resolve factual so as to conclude perhaps, charge. a different product of an the violation was the objectively unreasonable mistake.” Id. reviewing jury spe answers verdicts, happened Presley, cial we must make a “concerted This is what where although apparent effort to reconcile inconsistencies determined that the offi- violation, possible.” Ray ... if at all Alverez v. J. cers committed a constitutional (5th Co., they qualified immunity. McDermott 674 F.2d were entitled to & Cir.1982). Presley, Specifically, We must ask whether “the an See F.3d at 407. may fairly represent logi jury, question, swers be said to answer the first said probable entry plaintiffs cal and decision the relevant officers’ residence violated submitted, though the Amendment. This answer was in issues as even form the Fourth favor, plaintiffs selective answers the answer to the second the issue or alternative but not, “yes” prescribed judge may have been the was for the answered (5th Cir.1993). Mangieri Clifton, F.3d 9. See Cir.1994); Nacogdoches, Lampkin

801 pos- IV. officer a reasonable whether knowledge clearly law sessing of established Snyder challenges several evi- at known the officers the information and rulings. dentiary We review for abuse of entry time, believed that the the could have Torres, 114 discretion. United States F.3d panel was lawful. The plaintiffs of residence — (5th 520, Cir.), denied, 526 cert. U.S. not two “are that the answers concluded -, 316, (1997). 139 244 L.Ed.2d inconsistent,” may make “an officer because Snyder objects to the admission of evidence rights infringe constitutional mistakes that history concerning his criminal and the where, un- yet given liable and held reports purportedly exclusion of several doc circumstances, it can- law or uncertain clear umenting comply the failure to -with NOPD’s violating a knew was not be said that she she training national of and standards ad (citing rights.” Id. at 409 ministration. The evidence of crim person’s period in 642, shooting inal conduct the the Anderson, 107 at before at U.S. probative Trepagnier’s was of 3040).10 admitted as mind of the state of and reasonableness behavior, and find no abuse of officer’s we C. holding city’s regarding discretion. Our question of renders moot the explained, pro the law thus we With city’s adherence to national standards. duty “con discharge to make a ceed to our apparent inconsis certed effort reconcile V. ... if at all jury’s answers] tencies [in Accordingly, portion we REVERSE Alverez, at 674 F.2d possible.” holding judgment liable under Trepagnier used jury’s that excessive answer judgment city. for the 1983 and RENDER based on its conclusion apparently force was portion We AFFIRM the of the Snyder actually gun. did not that immunity granting Trepagnier qualified and jury’s “Trepagni additional answer to find for as- AFFIRM refusal belief that actions er had a reasonable his battery. sault and [Snyder’s] constitutional not violate would finding rights” must have been based DeMOSS, dissenting in Judge, Circuit Snyder Trepagnier believed part: that, gun facts” given the “uncertain so fully foregoing opinion I as to concur Trepagnier possessed, “it cannot be said I, II, I in Parts Parts and IV. cannot concur violating a person’s [he] knew [he] I to set forth the reasons for III V. write Presley, at rights.” 4 F.3d my dissent. evidence from There was sufficient indicates, opinion majority As there it did could have found what which the in factual issue this case: was a critical interrogatories issue. at Snyder gun pointed answer two it had a and whether Snyder Accordingly, is no internal conflict Trepagnier there shot before verdict, was not properly Regrettably, district court the back. question; if posed specific it had been immunity Trepagnier.11 granted qualified (5th 1995), Townley, Cir. disagree Hale v. 45 F.3d 914 and take the 10. Some other circuits pre finding only position force if excessive could be held liable Valiente finding immunity. Alex See cludes a scene proved present at the that Valiente 1315, County Angeles, Los 64 F.3d ander v. shooting did not take reasonable mea but (9th Henrich, 1995); 39 F.3d Cir. Scott v. using prevent excessive sures to Cir.1994); Hunter v. District light Snyder's he admission that did force. Columbia, (D.C.Cir.1991) (citing area when Valiente was not know whether cases, ”); citing as “but see Street Brown shot, probative evi the absence he was (10th Cir.1991). Parham, F.2d otherwise, suggesting court did the district dence dismissing its Valiente. not abuse discretion in dis- we that the court erred 11. Nor do find missing against Snyder's Under claim Valiente. additionally interroga resulting point I out that given question answer would tory ambiguity and inher- no. is defective because it asks wheth would have resolved belief,” jury’s findings. Trepagnier ent conflict other er had a “reasonable majority opinion does not set forth officer” would be Since not whether a “reasonable interrogatories jury Snyder’s an- specific that the violate lieve that his actions would swered, Supreme I do so in a footnote.1 rights. The constitutional made clear that the determination as to has complete I am in and fundamental dis- the officer’s use of the reasonableness of majority’s agreement with the conclusion objective force must be based on an and not that there is no inherent conflict between subjective determination. Graham Con (jury interrogatory finding of excessive force nor, 386, 397, 1865, 1872, U.S. 1) finding qualified immunity and a no. (1989). 104 L.Ed.2d 443 2). (assumptively jury interrogatory no. A finding Trepagnier excessive force used Consequently, proper disposi- I believe the Snyder necessarily arresting involves a trial court’s tion of this case is to reverse the by Trepag- the force determination that used judgment granting Trepagnier the benefit Snyder range (shooting nier the back at a qualified immunity and remand the case for a inches) “objectively of 6 to 10 unreason- against Trepagnier. retrial of claims However, justifi- absent some lawful able.” retrial, should, my Upon trial court cation, officer could rea- no view, jury require the to make the factual sonably shooting suspect believe or not determination whether back from a distance of to 10 inches would gun pointed Trepagnier, it at or struc- individual’s constitutional violate interrogatories ture the in a manner that case, jury’s rights. In this answer to requires jury used to find force interrogatory necessarily no. 2 means that “objectively Trepagnier was either unrea- found “objectively reasonable” under all sonable” “objectively actions believed that his were the circumstances. reasonable,” finding which is in direct con- opposite finding interrogato- flict with the

ry cogently the Tenth no. 1. As Circuit so Parham, 537, 540

put it in Street v. 929 F.2d

(10th Cir.1991): reasonably believe that

No officer could use unreasonable force did not vio clearly law.

late established Once that, concluded even under all the circum NATIONAL BANK OF FIRST used, stances, excessive force had been DURANT, Plaintiff-Appellant, inquiry This is one of the rare was over. the determination of liabil instances where availability immuni ity and the TRANS TERRA CORPORATION ty findings. qual depend on the same INTERNATIONAL, al., et immunity question was answered ified Defendants, jury’s part consideration of the ex Richer, Lane, Douglass and Don R. cessive force claim. See Dixon v. Lane & (10th Cir.1991). 1456, 1463 Defendants-Appellees. Sidney Trepagnier Sidney you you 2. Do find that Officer 1.Do find that Officer had a reasonable belief that his actions would deprived Snyder’s [sic] James of his constitution- Synder’s [sic] not violate James using arresting rights by excessive force in al rights? him? No_XYes No_XYes depriva- you 3. Do find that the constitutional your question ‘'yes," custom, 1 is continue If answer poli- by governmental tion was caused remaining questions. your If answer to on to the cy, practice of New Or- or decision of sign form 1 is "no” then and date this leans? No_ Yes X and return to the courtroom.

Case Details

Case Name: James Snyder, Plaintiff-Appellee-Cross-Appellant v. Sidney Trepagnier, City of New Orleans, Defendant-Appellant-Cross-Appellee

Court Name: Court of Appeals for the Fifth Circuit

Date Published: May 27, 1998

Citation: 142 F.3d 791

Docket Number: 96-30935

Court Abbreviation: 5th Cir.