* Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule

47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 96-10937

Summary Calendar

_____________________

THOMAS CYR; KEVIN CAPPER,

Plaintiffs-Appellants,

versus

CITY OF DALLAS, TEXAS; DALLAS POLICE DEPT.;

ROBERT JACKSON, Interim Dallas Police; GRANVER

TOLLIVER, Deputy Chief, Commander of the Dallas

Police Department Special Operations Bureau,

Tactical Division; RICHARD GARCIA, Sergeant,

individually and in his official capacity as a

Dallas Police Officer; HERBERT W. PARKER,

Senior Corporal, individually and in his official

capacity as a Dallas Police Officer; JOSEPH

R. MAINES, individually and in his official

capacity as a Dallas Police Officer; DOUG

KOWALSKI, Captain, individually and in his

official capacity as a Dallas Police Officer,

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court

for the Northern District of Texas

(3:95-CV-774-P)

_________________________________________________________________

April 3, 1997

Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Thomas Cyr and Kevin Capper appeal the adverse summary

judgment in in their 42 U.S.C. § 1983 excessive force action. We

AFFIRM.
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I.

On 27 February 1993, Cyr and Capper, with approximately 40

others, were involved in a demonstration at the North Dallas

Women’s Clinic. The clinic director contacted the Dallas police

because the protestors were blocking the doorway to the clinic,

were walking around inside the clinic, shouting at patients and

staff, and were stealing and destroying surgical equipment and

endangering patients. Officers Maines and Parker arrested Cyr and

Capper for criminal trespass after they refused to leave the

clinic.

After being arrested, both Cyr and Capper dropped to the floor

and refused to stand and walk out of the clinic. Officers Parker

and Maines handcuffed Cyr and Capper, but both refused to stand and

walk. When pain compliance techniques were unsuccessful, the

Officers warned Cyr and Capper that peppermace would be used. Cyr

and Capper failed to heed those warnings. Officer Parker

administered a short burst of mace to Capper’s head; when he still

did not comply, the Officers carried him outside. Officer Maines

administered a burst of mace that struck Cyr on the top of his

head, and a second burst to Cyr’s face. When the mace proved

ineffective, three Officers carried Cyr outside.

Cyr and Capper filed complaints with the Dallas Police

Department (DPD), which initiated an internal investigation. The

Internal Affairs division found that Parker and Maines’ use of mace

on the handcuffed abortion protestors was unnecessary and issued
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written reprimands. After the incident, the DPD instructed its

Officers not to use mace when dealing with passive resisters.

Prior to the incident, DPD had trained its Officers on the use

of peppermace, but not concerning passive resistance. Peppermace

had been authorized as a technique used after pain-compliance

techniques but before the baton when dealing with resistance to

arrest.

Cyr and Capper filed suit against the City, the Chief and

Deputy Chief of the DPD, and the arresting Officers, claiming,

inter alia, that the use of mace constituted excessive force, and

that the Officers were not adequately trained and supervised. The

district court granted summary judgment for the defendants, holding

that the arresting Officers were entitled to qualified immunity.

The district court granted summary judgment on the claims against

the City and the Officers in their individual capacities because,

absent a constitutional violation, the plaintiffs were precluded

from establishing that the City had adopted a policy which resulted

in the deprivation of their civil rights.

II.

The appellants contend that the district court applied

incorrect legal standards; that the individual appellants are not

entitled to qualified immunity because their actions were

objectively unreasonable; and that the district court erred by

granting summary judgment on their failure to train/supervise

claims because the appellees admitted that the Officers were not

trained on the use of peppermace in a passive resistance situation.
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A.

The district court did not apply an incorrect summary judgment

standard by drawing inferences from undisputed facts. Contrary to

the appellants’ assertions, whether the appellees’ conduct was

objectively unreasonable in light of the clearly established law at

the time the conduct occurred is a legal, not factual, issue. See

Harlow v. Fitzgerald, 457 U.S. 800, 818-19(1982). And, the

contention that the court erroneously relied on the “significant

injury” requirement for excessive force claims is without merit,

because the district court did not apply that standard.

B.

We apply the well-known two-part analysis in addressing

qualified immunity claims: (1) whether the plaintiffs alleged the

violation of a clearly established constitutional right; and (2)

whether the defendants’ conduct was objectively reasonable when

examined by reference to clearly established law. E.g., Siegert v.

Gilley, 500 U.S. 226, 231(1991); Duckett v. City of Cedar Park,

Tex., 950 F.2d 272, 279-80 (5th Cir. 1992).

1.

The appellants satisfied the first part of this analysis. A

claim that law enforcement officers used excessive force during an

arrest is sufficient to allege a violation of the Fourth

Amendment’s prohibition against unreasonable seizures. Graham v.

Connor, 490 U.S. 386, 394(1989).
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2.

We agree with the district court, however, that the Officers’

actions were objectively reasonable in light of the facts and

circumstances surrounding them. It was not clearly established in

February 1993 that the use of mace on handcuffed passive abortion

protestors constituted excessive force. As the district court

noted, although the appellants were not aggressively resisting

arrest, they were intentionally making the arrest procedure

extremely difficult by refusing to leave the clinic. The

atmosphere at the clinic was one of chaos and disorder; the

protestors, who outnumbered the Officers, were dispersed throughout

the clinic, frightening patients and staff. Capper had tried to

crawl through a receptionist’s window into the clinic’s business

office; when prevented from doing so, he confronted some patients

in the waiting room about unborn babies. He tried to grab a female

patient’s hand, and a shoving match ensued when her male companion

tried to stop him. Cyr was in the main hallway of the clinic,

blocking the entrance to a surgical room and shouting at a patient

in need of medical attention, who had locked herself inside the

room and was screaming for help. Moreover, having been told that

some of the protestors had stolen surgical equipment, the Officers

reasonably could have feared that Cyr and Capper might have armed

themselves with such equipment.

Needless to say, the reprimands given Parker and Maines do not

establish that they acted unreasonably. The reprimands were issued

after an investigation conducted with the benefit of hindsight.
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“The ‘reasonableness’ of a particular use of force must be judged

from the perspective of a reasonable officer on the scene, rather

than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396.

“The calculus of reasonableness must embody allowance for the fact

that police officers are often forced to make split-second

judgments--in circumstances that are tense, uncertain, and rapidly

evolving--about the amount of force that is necessary in a

particular situation.” Id. at 396-97.

C.

Finally, we affirm the summary judgment on the failure to

train and lack of adequate supervision claims essentially for the

reasons stated by the district court. Cyr v. City of Dallas, No.

3:95-CV-0774-P (N.D. Tex. July 2, 1996) (unpublished).

III.

For the foregoing reasons, the judgment is

AFFIRMED.