*

 Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be

published and is not precedent except under the limited circumstances set forth in 5th Cir. R.

47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________________________

No. 98-51047

_________________________________________

PAUL GONZALES, SR., individually and as personal representatives of the Estate of Edward G.

Gonzales, deceased; ELIZABETH GONZALES, individually and as personal representatives of

the Estate of Edward G. Gonzales, deceased,

 Plaintiffs-Appellants,

v.

CITY OF KERRVILLE, TEXAS; DONALD H. BUNCH, Individually 

and in his Official Capacity,

 

 Defendants-Appellees.

__________________________________________

Appeal from the United States District Court 

for the Western District of Texas

(SA-96-CV-998)

__________________________________________

December 20, 1999

Before KING, Chief Judge, and REYNALDO G. GARZA and EMILIO M. GARZA, Circuit

Judges.

PER CURIAM:*

I. PROCEDURAL AND FACTUAL BACKGROUND

This appeal arises out of a § 1983 suit brought by the parents of Edward Gonzales (the

Gonzales Family). Edward Gonzales was shot in the chest and killed by Donald Bunch, a sniper

with the City of Kerrville Police Department (Police Department), on October 29, 1994 in

Kerrville, Texas (the City). This lawsuit was filed on September 20, 1996, against the City and

Officer Bunch by the Gonzales family. At trial, the Gonzales Family alleged that the City’s failure

to adequately train its police officers to handle the use of snipers; its failure to utilize non-deadly

options such as negotiation or attack dogs; and the failure of Bunch to stay within the chain of
 

1

 The special verdict form submitted to the jury was as follows:

Special Interrogatory No. 1:

Do you find from a preponderance of the evidence that either the City of Kerrville or

Donald H. Bunch deprived Edward Gonzales of his constitutional rights as defined in this Court’s

instructions?

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command was the cause of their son’s death. Additionally, they alleged that Fackelman’s lack of

formal training in the use of snipers or in the proper procedures for confronting emotionally

disturbed persons was a cause of their son’s death. 

As part of the pretrial proceedings, the Gonzales family filed a memorandum requesting

that the district court exclude “any evidence submitted for the purpose of establishing Bunch’s

objective reasonableness beyond the information of which Bunch was aware at the time he shot

Edward Gonzales.” However, the district court allowed the “facts surrounding Gonzales’

conduct prior to the shooting, if testified to by witnesses subject to cross-examination . . . .” As a

result, various facts beyond what Bunch knew at the time he shot Gonzales were brought before

the jury, including that Gonzales had hit his cousin with the butt of his rifle earlier on the day he

died, and the fact that a bullet shattered the window of a nearby residential complex in which a

ten-year-old girl resided. The district court instructed the jury to disregard the testimony

regarding Gonzales hitting his cousin. 

Especially important are the following facts surrounding the jury’s allegedly inconsistent

verdict. At trial, the district court charged the jury on the “Failure to Train” allegation, stating

that a verdict would be for the Gonzales Family if the jury found that (1) “the City of Kerrville’s

training program was inadequate to train its officers and employees to carry out their duties” and

(2) that “the need for more of different training is so obvious and the inadequacy so likely to

result in the violation of constitutional rights, that the policy makers of the city of Kerrville can

reasonably be said to have been deliberately indifferent to the need for such training.”

However, the Special Interrogatories instructed the jury not to address the issue of

damages unless they found that Bunch had deprived Gonzales of his constitutional rights.1 The
ANSWER “YES” OR “NO” with respect to each Defendant.

ANSWER: City of Kerrville __________

Sgt. Donald Bunch ________ 

If you have answered “Yes” to Special Interrogatory No.1 with respect to Donald Bunch, then

answer Special Interrogatory No. 2. If you answered “No” to Special Interrogatory No. 1 with

respect to Donald Bunch, then do not answer Special Interrogatory No. 3 (regarding damages).

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jury responded to the Special Interrogatories by finding that the City of Kerrville had violated

Edward Gonzales’s constitutional rights even though Bunch had not. The jury awarded the

Gonzales family $100,000. Despite the jury’s verdict, the district court entered a take nothing

judgment in favor of the City of Kerrville, finding that once the jury decided that defendant

Donald H. Bunch did not violate the rights of Edward G. Gonzales, there was no basis of liability

against the City of Kerrville. The Gonzales Family filed a Motion to Alter Judgement and an

alternative Motion for New Trial, both of which were denied by the district court. This appeal

followed. 
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II. DISCUSSION

The Gonzales Family alleges two basis of error. First they argue that the district court

erred in rendering a take-nothing verdict against them and, in the alternative, denying their

motions for a new trial or to alter the judgment. Second, they challenge several of the district

court’s evidentiary rulings. Finding no error, we AFFIRM the district court’s verdict and

evidentiary rulings.

1. The Verdict in Favor of the City.

The district court correctly granted a verdict in favor of the City. To prevail on a § 1983

suit against the City, the Gonzales Family must prove a) a constitutional injury, here the alleged

excessive deadly force by Officer Bunch, and b) that the City authorized or maintained a custom

of approving of the unconstitutional conduct. Monell v. New York City Dept. of Social Services,

436 U.S. 658 (1978). Thus the claim against the city must fail if Gonzales’ constitutional rights

were not violated. 

The claim against the City fails as a matter of law. Only excessive force was alleged as a

violation of Gonzales’ Constitutional rights. The only individual alleged to have used excessive

force was Bunch, the officer who shot Gonzales. Thus, the only violation allegedly caused by the

City’s “failure to train” or by the alleged deficiencies of Sergeant Fackelman’s policies regarding

the use of snipers, was Bunch’s shooting of Gonzales. Since the jury found, in its answer to the

first interrogatory, that the shooting was not a violation of Gonzales’ constitutional rights, it

follows that the City’s alleged failure to train caused no violation of constitutional rights. See Los

Angeles v. Heller, 475 U.S. 796, 799 (1986) (per curium) (stating that “[i]f a person has suffered

no constitutional injury at the hands of the individual police officer, the fact that the departmental

regulations might have authorized the use of constitutionally excessive force is quite besides the

point.”) Thus, there was no violation of constitutional rights on which to base a finding of

municipal liability and the City is entitled to judgment as a matter of law under both Monell and
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Los Angeles v. Heller. 

2. The Evidentiary Rulings

The district court allowed into evidence the “facts surrounding Gonzales’ conduct prior to

the shooting, if testified to by witnesses subject to cross-examination . . . .” As a result, various

facts about Gonzales were brought before the jury that were not known to Bunch at the time that

he shot Gonzales. These facts included that Gonzales had hit his cousin several times with the

butt of a rifle on the day that Gonzales was shot dead, and the fact that a bullet shattered the

window of a nearby residential complex in which a ten year old girl resided. The district court

instructed the jury to disregard the testimony regarding Gonzales hitting his cousin. This court

reviews the district court’s admission of evidence for abuse of discretion. Jon-T Chemicals, Inc.

v. Freeport Chem. Co., 704 F.2d 1412, 1417 (5th Cir. 1983) (noting that the admission of

evidence is within the sound discretion of the district court). An error in the admission of

evidence is reversible only if the evidence complained of affected a substantial right of the

Gonzales Family. See FED.R.EVID.103(a). 

The Gonzales Family argues that the evidence in question is not probative of whether

Officer Bunch’s actions were reasonable and that the evidence should thus be excluded given its

prejudicial value, i.e. it tends to give the jury the impression that Gonzales was off on a violent

rampage and that he was a threat to little girls. The City responds that the Gonzales’ “opened the

door” when they had Paul Gonzales, Jr., Edward Gonzales’s brother, take the stand to testify

about Edward Gonzales’ “peaceful nature.” During cross-examination, the City asked Paul

Gonzales, Jr. about Edward Gonzales having attacked him on the day in question as well as his

having threatened to kill their father. Given that the Gonzales’ opened the door to the testimony,

and that the district court limited the prejudicial impact of such testimony with a limiting

instruction, there is no abuse of discretion. 

The Gonzales’ complain about the admission of the testimony of one Ranger Buckaloo

who testified, upon cross-examination in answer to questions posed by the Gonzales’, that certain
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individuals at a nearby apartment building, including a 10 year old girl, were at risk of being hit

by the bullets shot by Gonzales. Given that the Gonzales’ counsel asked the question but did not

like the answer, there was no abuse of discretion in allowing the answer into evidence.

Finally, the Gonzales’ complain about the admission of various exhibits, including a

diagram of the Dam and a 45 minute tape of the incident in question, including officers’ comments

about bullets whizzing past their heads. The City points out that the Gonzales’ allegations put at

issue the reasonableness of how the City’s officers were trained and how the City responded to

the incident in question. The City argues that the 45 minute tape describes how the Police

Department responded to the incident and portrays the professional conduct of a department

alleged to have been improperly trained. Given the strong relevance of this evidence to issues

raised by the Gonzales’ allegations of poor training, admission of this evidence was not an abuse

of discretion.

III. CONCLUSION

The verdict in favor of the City, as well as all the challenged evidentiary rulings, are hereby

AFFIRMED.