* District Judge of the Eastern District of Louisiana, sitting

by designation.

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
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

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
3

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
4

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
5

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
6

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
7

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
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.

8

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
9

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
10

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
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).

11

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,
12

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
13

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,
14

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
15

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" <because of our respect for the jury as an institution

and our concern that the party who persuaded the jury should not be

stripped unfairly of a favorable decision.’" Id., quoting NisshoIwai Co. v. Occidental Crude Sales, Inc., 848 F.2d 613, 619 (5th

Cir. 1988). An order granting a new trial will therefore be

reversed when it is not supported by the reasons given, and the

jury's findings are supported by evidence in the record. Lloyd v.

Georgia Gulf Corp., 961 F.2d 1190, 1196-97 (5th Cir. 1992).
16

Here, the magistrate judge did not explicitly state his

reasons for conditionally granting a new trial. Further, we have

already determined that the defendants are not entitled to judgment

as a matter of law on the grounds of qualified immunity with regard

to Fontenot's Section 1983 claims. We have also determined that

there was adequate evidence in the record to support a finding that

the defendants violated Fontenot's Fourth Amendment rights, which

provides an adequate basis for liability under Section 1983. The

magistrate judge's order conditionally granting a new trial is

therefore reversed. We remand this case with instructions to

reinstate the jury's verdict in favor of Fontenot and to render

judgment in her favor.

AFFIRMED, IN PART, REVERSED, IN PART, AND REMANDED.