* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not

be published and is not prec e dent except under the limit ed circumstances set forth in 5 TH C IR

. R.

47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

May 19, 2003

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 00-31276

____________

MARION HARRIS, Individually and as administratrix o n behalf of

Cedric Harris Estate,

Plaintiff - Appellant,

versus

CITY OF SHREVEPORT; JUSTIN D OLDS, Individually and as an

e mployee of the City of Shreveport; GERALD FLET CHER,

Individual ly and as an employee of the City of Shreveport; STEVE

PRATOR, Individually and as an employee of the City of Shreveport,

Defendants - Appellees.

Appeal from the United States District Court

For the Western District of Louisiana

99-CV-1487

Before HIGGINBOTHAM, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM: *

Mar io n Harris appeals the outcome of her 42 U.S.C. § 1983 suit against the City of-2-

Shreveport, Officer Justin Olds, Officer Gerald Fletcher, and Chief of Police Steve Prator

(collectively, “the defendants”). The events surrounding the death of Harris’s so n, Cedric Harris

(“the Decedent”) gave rise to this suit. The Decedent was shot by Officer Olds during a struggle over

the Decedent’s gun after Olds stopped the Decedent for suspected traffic violations and frisked him

for weapons.

Harris based her suit on violations of the Decedent’s Fourth Amendment, Eighth Amendment,

and Fourteenth Amendment rights, and she asserted claims under 42 U.S.C. §§ 1981 and 1985. She

also pled several

Louisiana state law claims: assault, battery, false imprisonment, negligence, wrongful

death, loss of enjoyment of life, and violations of the Decedent’s Louisiana constitutional rights.

The district court granted summary judgment on the issue of whether Olds’s init ial stop of the

Decedent was permissib le under the Fourth Amendment, ruling that the stop and frisk were legal.

The issue of excessive force, however, was presented to a jury. At the close of Harris’s evidence,

the district court granted the defendants’ F E D

. R. C IV

. P. 50 motion to dismiss Harris’s equal

protection claim.

Ultimately, the jury concluded that Harris had failed to p rove excessive force by a

preponderance of

t he evidence. The district court entered a take-nothing judgment and dismissed

Harris’s remaining claims with prejudice. It also denied Harris’s motion for judgment as a matter of

law. Harris now appeals virtually every ruling made by the district court.

I

Harris first contests the district court’s summary judgment ruling that Olds’s stop and frisk

of the Decedent were supported by probable cause. Olds stopped the Decedent and his companion,

Melvin Robinson, after observing Robinson using a bicycle to tow the Decedent in a wheelchair.-3-

Robinson and the Decedent were stopped in the middle of the street after dark, and Olds believed this

activity violated various traffic regulations. Specifically, Olds thought the individuals were impeding

traffic, see L A

. R EV

. S TAT

. A NN

. § 14:97, that t he bike and/or wheelchair were being operated

recklessly, see L A

. R EV

. S TAT

. A NN

. § 14:99, and that neither the bike no r t he wheelchair had

reflectors even though it was dark, see S HREVEPORT

, L A

., C ODE OF O RDINANCES § 90-424.

We review a grant or denial of summary judgment de novo

, using the same criteria employed

by the district court. M

ongrue v. Monsanto Co.

, 249 F.3d 422, 428 (5th Cir. 2001). Sum m ary

judgment is proper if, drawing all inferences in favor of the non-moving party, there i s no genuine

issue of material fact and the moving party is entitled to judgment as a matter of law. I d. ; F ED

. R.

C IV

. P. 56(c).

Harris first argues the stop and pat-down were illegal because it is not clear that a wheelchair

is a “mea ns o f co nveyance” under Louisiana law, and thus L A

. R EV

. S TAT

. A NN

. § 14:99 was

inapplicable. S ee State v. Carr

, 761 So. 2d 1271 (La. 2000). We find this argument to be

unpersuasive. In C

ar r , t he Louisiana Supreme Court held L A

. R EV

. S TAT

. A NN

. § 14:98 to be

ambiguous as to whether “other means of conveyance” included a bicycle, such that it did not provide

adequate notice to the public that riding a bicycle while intoxicated was a criminal offense. Thus, the

Carr court held, that “

for purposes of the charges at issue here

. . . ‘other means o f conveyance’

under La. R.S. 14:98 A(1) does not include a bicycle.” 761 So. 2d at 1276 (emphasis added).

Although the statute at issue in Carr uses the same “other means of conveyance” language

at issue in this case, the Carr court did not conclusively define the term. In addition, C arr does not

necessarily bear on whether Olds’s interpretation of the statute could form the basis for a legal stop

under the Fourth Amendm ent . Finally, C

arr does not address the other statutes that might have-4-

sup po rt ed Olds’s decision to stop Robinson and the Decedent. S ee, e.g.

, L A

. R EV

. S TAT

. A NN

.

§ 32:194 (subjecting bicycles to all Louisiana traffic laws unless explicitly excepted by the statutory

provision at issue); L A

. R EV

. S TAT

. A NN

. § 32:143 (listing the locations where it is illegal to stop or

park a vehicle); State v. Hunter , 499 So. 2d 383, 385 (La. Ct. App. 1986) (holding that a violation

of a traffic regulation by a cyclist constitutes probable cause to stop the cyclist).

Harris next contends that Olds did not present evidence at the summary judgment stage that

he had a reasonable suspicion the Decedent was armed and dangerous, such that the frisk would be

justified under Terry v. Ohio

, 392 U.S. 1 (1968). This argument is dubio us. In their summary

judgment ruling, the defendants included Olds’s sworn affidavit, which details the many reasons Olds

believed the Decedent might be armed. The objective facts known to Olds about the Decedent are

not contested by Harris and these facts support Olds’s decision to frisk the Decedent for weapons.

See Terry v. Ohio , 392 U.S. 1, 27 (1968).

Finally, Harris argues that the reasons given by Olds for the stop indicate that Robinson alone

had violated traffic regulations and thus Olds exceeded the scope of the stop by releasing Robinson

while detaining the Decedent. It appears that Harris first made this argument in her reply brief,

nevertheless we will address it briefly. Harris is correct that not all of the statutory violations cited

by defendants as the basis for the stop necessarily implicate the Decedent. Nonetheless, Olds stated

in his affidavit that he believed Robinson and the Decedent were impeding traff ic. This particular

violation could easily apply to both individuals.

Overall, with regard to the legality of the stop and frisk, Harris ha s failed to show that the

district court erred when it granted summary judgment or denied her motion for reconsideration.-5- II

Harris next argues that the district court erred when it denied her motion for judgment as a

matter of law or, alternatively, a new trial. Although we review a district co urt ’s disposition of a

motion for judgment as a matter of law de novo

, such a motion should only be granted if “there is no

legally sufficient evidentiary basis for a reasonable jury to find” for Olds on the issue of excessive

force. I ndustrias Magromer Cueros y Pieles S.A. v. La. Bayou Furs Inc. , 293 F.3d 912, 918 (5th

Cir. 2002) (citing F ED

. R. C IV

. P. 50(a)). We review the denial of a new trial motion for abuse of

discretion, and will not reverse the district court unless there is “complete absence of evidence to

support the jury verdict.” Id. at 924.

Harris contends that the district court should have gran t ed judgment as a matter of law

because no reasonable jury could have found that the defendants satisfied the sta ndard for use of

deadly force articulated by the Supreme Court in Tennessee v. Gar ner , 471 U.S. 1 (1985). Thi s

argument ignores the evidence presented at trial.

Olds found a gun when he frisked the Decedent and the Decedent refused to release the it.

While trying to secure t he weapo n, Olds and Fletcher became involved in a struggle with the

Decedent. Olds then lost his grip on the gun and believed that the Decedent—who was lying face

down on the pavement—had control of it and might shoot at Olds or Fletcher. It was at this point

t hat Olds decided to employ deadly force. The Decedent’s refusal to relinquish the gun and t he

ensuing struggle constituted an actual threat by the Decedent. C f. Carter v. Fenner

, 136 F.3d 1000,

1011 (5th Cir. 1998) (accepting jury verdict that deadly force was appropriate where suspect was

unarmed but struggled and might have been reaching for someone else’s weapon).

In addition, the defendants presented two experts on this issue. The first, a physical1 Harris also argues that it was error to (1) use excessive force instructions i nstead of the

specific deadly force elements set out in Garner ; and (2) instruct the jury that injuries which result

from the officer’s use of force to overcome the suspect’s resistance “do not involve constitutionally

protected intere st s.” She concedes, however, that she did not specifically make the first two

objections during the charge conference. We review tardy objections for plain error, giving extreme

deference to the district court. T ompkins v. Cyr

, 202 F.3d 770, 783-84 (5th Cir. 2000). Error is plain

o nly when it is clear or obvious and it affects the defendant’s substantial rights. U nited States v.

Cotton , 535 U.S. 625, 122 S. Ct. 1781, 1785 (2002).

There was no plain error in the instructions. The elements of excessive force stated to the jury

were the exact elements listed in Carter

, a Fifth Circuit case that also involved deadly force. S ee 136

F.3d at 1010. Harris’s second objection is also meritless. The jury was told that the force must have

been reasonable in light of the threat presented to the officers, so the applicable law was sufficiently

clear.

-6- rehabilitation physician, testified that the Decedent had the upp er body strength to maneuver and

shoot despite his disabilit y. The second, a use of force expert, testified that Olds acted appropriately

in using deadly for c e. Thus, when the evidence is viewed in the light most favorable to Olds, a

reasonable jury could have easily found that no excessive force was used.

In the alternative, Harris contends a new trial is appropriate. She argues that the district court

erred when it failed to instruct the jury on her state law claims of assault, battery, negligence, and

excessive force. 1 We review timely challenges to jury instructions for abuse of discretion. We will

reverse only if (1) the charge, on the whole, creates a substantial doubt as to whether the jury has

been properly guided, and (2) the incorrect charge could have affected the outcome of the case.

Dahlen v. Gulf Crew s, Inc. , 281 F.3d 487, 494 (5th Cir. 2002).

Because the jury did not find excessive force, Harris has not shown that the district court’s

decision not to instruct the jury on the assault or battery claims was error. See Kyle v. City of New

Orleans

, 353 So. 2d 969, 972 (La. 1977); Gerard v. Parish of Jefferson

, 424 So. 2d 440, 444 (La.

Ct. App. 1982), writ denied

, 430 So. 2d 75 (La. 1983). With regard to the negligence claim, a review

of the record shows no evidence that Olds conducted the frisk in a negligent manner. Thus, it was2 Harris did not clearly object to the district court’s decision to remove juror number 38 at the

time, and she has thus waived her right to object. D awson v. Wal-Mart Stores, Inc.

, 978 F.2d 205,

209 (5th Cir. 1992).

-7- not error to omit a negligence jury instruction. See, e.g.

, Roberts v. Wal-Mart Stores, Inc. , 7 F.3d

1256, 1258 (5th Cir. 1998).

Although Harris contends that it was error for the district court to instruct the jury only on

the elements of a federal excessive force claim, she has failed to show that Louisiana law is materially

different from federal jurisprudence. Both the state and federal inquiry hinge upon whether the force

used by the officer was objectively reasonable given the totality of the circumstances. C ompare Kyle

,

353 So. 2d at 973 with Colston v. Barnhart

, 130 F.3d 96, 99 (5th Ci r. 1997). Harris’s chi ef

complaint seems to be that several of the factors listed by the Louisiana Supreme Court in Kyle were

not explicitly listed in the jury instructions. S ee 353 So. 2d at 973. But there is nothing in K yle that

mandates the use of every factor. S ee LaBauve v. State

, 618 So. 2d 1187, 1191 (La. Ct. App. 1993).

Finally, Harris argues for a new trial because the composition of the jury allegedly denied her

equal protecti on. Specifically, Harris contends it was “plain error” for the district court to deny her

Batson challenge to the defendants’ use of peremptory challenges against two black jurors and for

the court to dismiss the last black juror for cause. 2

When reviewing a district court’s Batson analysis, we focus on (1) whether the side exercising

the peremptory challenge articulated a race-neutral justification and (2) whether Harris has

demonstrated that the justification was pretextual and that the defendants engaged in purposeful

discrimination. U

nited States v. Montgomery

, 210 F.3d 446, 453-54 (5th Cir. 2000). Because a

court’s evaluation of a race-neutral justification depends on credibility assessments, we review the3 Harris also argues that the district court erred when it dismissed her equal protection claim

and denied her motion in limine to exclude evidence relating to the cocaine found on the Decedent,

as well as evidence of the Decedent’s prior bad acts. We decline to address these arguments in detail

because we find them to be wholly without merit. Likewise, Harris’s notices of appeal list a number

of specific claims that were not briefed, and thus are waived. S ee United States v. Thames

, 214 F.3d

608, 611 n.3 (5th Cir. 2000).

-8- district court’s decision for clear error. Id. G iven the extremely deferential standard of review, we

conclude that the district court did not err by allowing jurors number 24 and 34 to be stricken. 3

For the foregoing reasons, we find that the district court properly granted summary judgment

on the issue of the legality of the stop, properly granted the defendants’ Rule 50 motion on the equal

protection issue, properly denied Harris’s motion for judgment as a matter of law on the excessive

force issue, an d pro perly dismissed Harris’s remaining claims. We AFFIRM the district court’s

rulings in all respects.