* District Judge of the Southern District of Texas, sitting by designation. United States Court of Appeals,

Fifth Circuit.

No. 91–5673.

Ken MOUILLE, et al., Plaintiffs,

Leroy Liberda, Plaintiff–Appellant,

v.

The CITY OF LIVE OAK, TEXAS, Mark E. Jackley, Douglas Faesler, and Timothy Britt,

Defendants–Appellees.

Nov. 20, 1992.

Appeal from the United States District Court for the Western District of Texas

Before REYNALDO G. GARZA and GARWOOD, Circuit Judges and WERLEIN, * * District Judge.

REYNALDO G. GARZA, Circuit Judge:

t, Leroy Liberda, commenced suit under 42 U .S.C. § 1983, allegi ng that hi s constitutional rights wre violated by defendants, Timothy Britt, Mark Jackley, Douglas Faesler, and ity of Live Oak, Texas. At the relevant times, Britt was a Live Oak police officer, Jackley was the Chief of Police of Live Oak, and Faesler was the Live Oak City Manager. The district court granted a directed verdict for all defendants against Liberda. On appeal, the Fift Circuit reversed and remanded Liberda's claims. On remand, the case was tried before a jury, which rendered a verdict for the defe ndants on the ground that Britt did not use excessive force. Liberda appeals certain jury instructions and Britt reasserts the affirmative defense of qualified immunit y. We find that Britt is entitled to qualified immunit y. Further, there is insufficient evidence against Jackley, Faesler, and the City of Live Oak. Therefore, we AFFIRM. I. FACTS

This civil rights action arises out of the events that too k place on January 9, 1987, in San

Antonio, Texas. Late Friday morning, January 9, 1987, Officer Britt observed a blue Corvette

exceeding the posted speed limit by 27 miles an hour. Britt attempted to stop the vehicle; however,

a high speed chase ensued on interstate I–35 at speeds in excess of 95 miles per hour. Live Oak

Police Lieutenant, Gary Hopper, and the police dispatcher maintained radio contact during the chase.

According to the official log book, at 11:28 A.M. Britt first made radio contact, and reported that

he was traveling southbound on I–35 pursuing a blue Corvette.

The blue Corvette, which was being driven by Kenneth Mouille, exited the highway at

Walzem Road and hastily pulled into the L & R Associates ("L & R") parking lot. Both Britt and

Mouille emerge d fro m t heir respective cars, and Britt informed Mouille that he was under arrest.

Britt's police car was a "marked unit," and he was wearing the distinctive blu e police uniform

emblazoned with a salient badge, silver name tag, and police depart ment emblems. Mouille

unmistakeably knew that he had been chased by a police car, and that Britt was a police officer.1 Liberda contends that he must elevate his leg in order to alleviate the continuing pain.

Consequently, he is unable to conduct recruiting seminars because he cannot rest his leg. Further,

Liberda contends that the incident caused him embarrassment. Mouille responded to Britt's attempted arrest with a few expletives, and then bolted into L & R. The

events that transpired inside the L & R offices form the basis of this suit.

Mouille sped into the building and t hen int o t he front office of L & R, shutting the door

behind him. Mouille was yelling as he ran into the office, and the entire commotio n st irred up

everyone inside, especially Grace Rollins. Grace Rollins, who is Mouille's mother, is also Liberda's

business partner at L & R, which is an insurance agency.

Britt did not know what he would encounter when he opened L & R's front door so he had

his nightstick drawn, ready for the unpredictable. Bri tt threw open the door wi th a great deal of

force, which knocked some plaques off the wall. Rollins immediately interposed herself between Britt

and her son. Britt informed her about the high speed chase, and told that her son was under arrest.

Britt then attempted to handcuff Mouille. Although Mouille pushed and sho ved, Officer Britt

eventually managed to handcuff Mouille, despite his uncooperativeness.

Just after Britt handcuffed Mouille, Leroy Liberda and Laurie Ro llins entered the front office.

Liberda and Laurie Ro llins audaciously approached Britt to within arm's length, screaming at him.

Britt was faced with a volatile situation and had to make an instinctive decision. He pulled out his

revolver and admonished everyone to back off.

Liberda contends that Britt shouted expletives, cocked his gun, shoved it in Liberda's neck,

and then threatened to blow his head off. Britt contends that the gun did not touch Liberda. As a

result, Liberda jumped back into a door knob and allegedly suffered debilitating back and leg injuries. 1

Simultaneously, Liberda also urinated in his pants. Britt concedes that the sight of the gun caused

Liberda to jump backwards into the door. Approximately three minutes elapsed from the time Britt

entered the office until the time he emerged with Mouille.

Once outside the building, Britt placed Mouille in the backseat of his patrol car and contacted

headquarters. At 11:36 A.M., Britt informed the dispat cher t hat Mouille was in custody. Two

minutes later, at 11:38 A.M., Britt informed the dispatcher the street address for L & R. Minutesafter Mouille was pl aced in custody, Lieutenant Hopper arrived at L & R. Officer Hopper

interviewed each of the witnesses. By 11:56 A.M., Bri

tt reported that he was en route to pol i ce

headquarters with Mouille.

II. PROCEDURE

Liberda, along with Mouille, Grace Rollins, and Laurie Rollins, filed a Section 1983 action

against the defendants alleging a violation of their fourth amendment rights. The case was tri ed

before a jury. At the close of plaintiffs' case, each defendant moved for a directed verdict. The

district court dismissed the claims by Liberda, Grace Rollins, and Laurie Rollins. Further, the district

court directed a verdict for Faesler against all c laims by Mo uille, but denied the directed verdict

motions by Britt, Jackley, and the City of Live Oak.

Liberda, Grace Rollins, and Laurie Ro llins appealed from the adverse determination by the

district court. Subsequently, a panel of this court affirmed the directed verdicts against Grace Rollins

and Laurie R o llins, but reversed the verdict against Liberda, and remanded for a new trial. S ee

Mouille v. City of Live Oak, 918 F.2d 548, 550 (5th Cir.1990). On remand, the jury, by special

verdict, found that Britt had not used excessive force against Liberda, and the district court entered

judgment for the defendants. Liberda appeals.

III. DISCUSSION

A. Qualified Immunity—Britt

Britt answers Liberda's Section 1983 claims with the affirmative defense of qualified

immunit y. Qualified immunity determinations implicate a multi-faceted framework. This case

represents a procedurally unique setting in which to discuss qualified immunit y. Qualified immunit y

is normally raised prior to trial at the summary judgment stage. Indeed, the thrust underlying the

affirmative defense of qualified immunity is to allow public o fficials to avoid timely and exhaustive

litigation. S ee Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 954

F.2d 1054, 1057 (5th Cir.1992).

A prior panel of our court has already decided that Britt was not entitled to qualified immunit y

following a directed verdict in favor of defendants. S ee Mouille, 918 F.2d at 551. The M ouille panel2 Presumably, the plaintiffs were able to establish the thirty minute interval through their own

testimony, and this testimony stood unrebutted on appeal because the directed verdict barred the

defendants from introducing their evidence.

3 In the second trial Britt testified that he immediately pursued Mouille into L & R associates.

Further, his testimony was corroborated by the police log. Moreover, Britt's radio broadcasts

were monitored and corroborated by Lieutenant Hopper and the radio dispatcher.

4 The Mouille panel concluded that it was bound to construe the record most favorably to

Liberda because the case was appealed following a directed verdict. See Mouille, 918 F.2d at

553. Favorable conclusions in the first appeal included not only the primary determination of the

thirty minute interval, but secondary inferences such as: (i) given the time lag, Britt could have

called for backup; and (ii) there was no exigency or excitement to justify such disruptive pursuit.

5 The Supreme Court stated in Graham that excessive use of force claims fall under the fourth

amendment's guarantee of the right "to be secure [from] ... unreasonable ... seizures" of the

person. See Graham, 490 U.S. at 394, 109 S.Ct. at 1871. Further, Chief Justice Rehnquist remanded Liberda's claims to the district court where he commenced a second trial—this time around

the defendants were able to introduce their own evidence. Crucial evidence that established Britt was

not entitled to qualified immunity in the first trial was either: (i) ineffectively presented by Liberda;

or (ii) sufficiently eviscerated by the defendants during the second trial.

In Mouille, t he plaint iffs had proven that Britt did not enter the L & R offices until thirty

minutes after Mouille had parked his car. 2 The current record is bereft of any evidence upon which

to conclude that thirty minutes elapsed from the time Mouille pulled into the parking lot until the time

Britt burst through the door. 3 Therefore, the life blood of the Mouille panel's conclusion: that

Officer Britt's actions were "bizarre and shockingly unreasonable," is emasculated. 4 Significantly, the

current record establishes that eight minutes elapsed from Britt's last radio contact during the chase

on I–35 until his next report when Britt informed the dispatcher that Mouille was in custody. The

foregoing merely establishes that we are not bound by the Mouille decision.

Init ially, plaint iff must allege a violation of a clearly established constitutional righ t. S ee

Siegert v. Gilley,

––– U.S.

––––, ––––, 111 S.Ct. 1789, 1792, 114 L.Ed.2d 277, 287 (1991). Liberda

alleges that Officer Britt used excessive force against him during the course of Mouille's arrest.

Currently, allegations of excessive use of force implicate the fourt h amendment's guarantee of

freedom from unreasonable "seizures." S ee Graham v. Connor, 490 U.S. 386, 394–95, 109 S.Ct.

1865, 18 70–71, 104 L.Ed.2d 443 (1989). 5 Liberda's allegations fall under the broad definition ofexpressly disavowed an approach to excessive force claims under the substantive due process

clause of the fourteenth amendment. See id. at 395, 109 S.Ct. at 1871.

6 In Graham, the Supreme Court defined "seizure" under the fourth amendment as a "means of

physical force or show of authority, ... in some way restrain[ing] the liberty of a citizen." See

Graham, 490 U.S. at 395, 109 S.Ct. at 1871 ( citing Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct.

1868, 1879 n. 16, 20 L.Ed.2d 889 (1968)). It further required that " all claims that officers have

used excessive force ... in the course of an arrest ... should be analyzed under the fourth

amendment and its "reasonableness' standard, rather than under a "substantive due process'

approach." Id. (emphasis added). "seizure" for fourth amendment purposes. 6 However, pri or to G raham, the law in this Circuit clearly

held that excessive use of force claims were governed by the substantive due process clause in the

fourteenth amendment. S ee Shillingford v. Holmes, 634 F.2d 263, 265 (5th Cir.Unit A Jan. 1981).

Categorization of the precise constitutional rubric violated by excessive force has been

subject to the sands of temporality. Be that as it may, the underlying standard throughout has always

been that qualified immunit y operates as a cloaking device from personal liabilit y for police officers

who act in an objectively reasonable manner. S ee Anderson v. Creighton, 483 U.S. 635, 640, 107

S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). Under A nderson and its progeny, the reasonableness of

action taken must be assessed in light of the "cle arly est ablished" law in effect at the time. S ee

Anderson, 483 U.S. at 639, 107 S.Ct. at 3038; s ee also Jackson v. Beaumont Police Dep't, 958 F.2d

616, 620 (5th Cir.1992); Pfannstiel v. City of Marion, 918 F.2d 1178, 1184 (5th Cir.1990).

Approached from a different vantage point: police officers are free to exercise their

discretion as long as they do not trample over clearly established legal rights, See Anderson, 483 U.S.

at 639, 107 S.Ct. at 3038. The rationale behind the "clearly established law" requirement rests on the

no t io n that police action should not be subject to retroactive application of newly created legal

standards. S ee Harlow v. Fitzgerald, 457 U.S. 800, 819, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396

(1982).

Furthermore, the appro ach is objective in nature so that all officials will conduct their

activities subject to the same stand ards. Moreover, where clear legal rights are not involved it is

better to have a policy that encourages action, without the fear of Monday morning quarterbacking.

Therefore, even if we conclude, with the benefit of hindsight, that Bri t t did violate Liberda'sconstitutional rights, but we also conclude that a reasonable officer placed in Britt's shoes would have

acted similarly—t

hen Britt is entitled to the protective shroud of qualified immunit y. S ee Duckett v.

City of Cedar Park, 950 F.2d 272, 280 (5th Cir.1992).

A threshold inquiry into what is "objectively reasonable" must establish the law in effect on

January 9, 1987. Applying the "clearly established law" requirement to the present case points us to

Shillingford. Prior to the Supreme Court's decision in G raham, the controlling legal precedent in this

Circuit held that the substantive due process clause of the fourteenth amendment governed excessive

use of force claims. See Simpson v. Hines, 903 F.2d 400, 403 (5th Cir.1990) ( citing Shillingford,

634 F.2d at 265). Shillingford stated:

If the state officer's action caused severe injury, was grossly disproportionate to the need for

action under the circumstances and was inspired by malice rather t han merely careless or

unwise excess of zeal so that it amounted to a n abuse o f official power that shocks the

conscience, it should be redressed under Section 1983.

Id.

The Shillingford decision sets forth a conjunct ive tripartite test to determine the

reasonableness of an officer's actions. The standard has coalesced and can be simply stated: (i) did

the action cause severe injury; (ii) was the action grossly disproportionate to the need fo r action

under the circumstances; and (iii) did the officer act so maliciously that it would shock the

conscience. S ee id. Therefore, if any of the three elements of the test are missing, then the plaintiff

has not suffered a violation of constitutional magnitude. This test represents the clearly established

law, which guided law enforcement as of January 9, 1987.

Applying the standard to the case at hand, we must first place ourselves, as reasonable

officers, in Britt's shoes. Next, we have to account for Britt's sudden and unexpected

predicament—trying to discount the benefit of hindsight. Certainly, we do not want to hold Britt to

standards higher than what reasonable peers of his would have done under the same circumstances.

The most relevant prong in the three part inquiry for our purposes is number two: whether

Britt's actions were grossly disproportionate to the need for action. Britt acted reasonably when he

chased Mouille into the L & R offices because he was trying to evade arrest. Perhaps Britt may have

opened the office door with less vigor. However, none of the people inside that office were entitled7 Two recent Fifth Circuit cases have recognized the tension between Johnson and Hudson.

See King v. Chide, 974 F.2d 653, 657 (5th Cir.1992); Knight v. Caldw ell, 970 F.2d 1430, 1432

(5th Cir.1992). However, both cases declined to decide whether Hudson in fact impugned

Johnson. to interfere with Britt's arrest. Indeed, citizens have no right to intervene in lawful police business.

Further, Liberda's actions were undoubtedly inappropriate. We do not wish to count enance like

behavior in the future.

When Britt saw Liberda approaching him menacingly—he did no t know what Liberda's

intentions were. If he were to passively await the outcome he may have been injured or even worse.

The constitution does not empower private citizens to imperviously interfere with police business.

The jury found that Britt did not use excessive force and we too agree that Bri tt acted reasonabl y

when he attem

pte d t o quell a volatile situation under rapidly evolving and unpredictable

circumstances. Therefore, Britt's actions were not grossly disproportionate to the need for action.

Secondly, we focus on t h e third prong of Shillingford and consider whether Britt acted so

maliciously that it shocks the conscience. Objectively, we must analyze Britt's actions, and consider

whether a reasonable officer would use a firearm to protect himself when approached by unknown

individuals during the course of an arrest. We conclude that Officer Britt's actions were objectively

reasonable and not excessive, given the circumstances. Indeed, they do not shock the conscience.

The severe injury prong of Shillingford need not be addressed. In fact, the jury below was

ch arged on the basis of significant injury. To be sure, the law on excessive force claims, as it

currently stands in this Circuit, requires that plaint iffs must prove significant injury. S ee Johnson v.

Morel, 876 F.2d 477, 480 (5th Cir.1989) (en banc) (per curiam). The J ohnson holding has been

called into doubt by Hudson v. McMillian,

––– U.S.

––––, ––––, 112 S.Ct. 995, 997, 117 L.Ed.2d

156 (1992) (excessive force claim tenable in eighth amendment context even without significant

injury). 7 We expressly decline to decide whether J ohnson 's vitality has been impaired by Hudson.

Incidently, anything that we say regarding Johnson would be dicta for two reasons: (i) because we

find that Britt is entitled to qualified immunit y under Shillingford 's second and third prongs, we need

not address the first prong; and (2) Britt is not bound by legal developments, which occurred after1987.

B. Jackley and Faesler

Well settled Section 1983 jurisprudence establishes that supervisory o fficials cannot be held

vicariously liable for their subordinates' actions. S ee Monell v. Department of Social Services, 436

U.S. 658, 691–95, 98 S.Ct. 2018, 2036–38, 56 L.Ed.2d 611 (1978); T hibodeaux v. Arceneaux, 768

F.2d 737, 739 (5th Cir.1985) (per curiam). Supervisory officials may be held liable only if: (i) they

affirmat ively participate in acts that cause constitu t io nal deprivation; or (ii) implement

unconstitutional policies that causally result in plaint iff's injury. S ee Thompkins v. Belt, 828 F.2d 298,

303 (5th Cir.1987); s ee also Grandstaff v. City of Borger, 767 F.2d 161, 169–70 (5th Cir.1985),

cert. denied, 480 U.S. 916, 107 S.Ct. 1369, 94 L.Ed.2d 686 (1987). We find a dearth of evidence

in the record, and conclude that L iberda has failed to substantiate allegations as to any

unconstitutional policies.

C. City of Live Oak

Municipalities can be held vicariously liable for the actions of their employees. See City of

Canton v. Harris, 489 U.S. 378, 395, 109 S.Ct. 1197, 1208, 103 L.Ed.2d 412 (1989). Inadequate

police training may serve as a predicate for Section 1983 liabilit y only where it amounts to deliberate

indifference to constitutional rights. I d. at 379, 109 S.Ct. at 1199. Again, Liberda has failed to make

out a case against the municipality.

D. Failure to submit Liberda's interrogatories

Because we find that Britt is entitled to qualified immunity and we find no evidence against

Jackley, Faesler, and the City of Live Oak—we find both the interrogatories that were submitted and

the interrogatories that were excluded to be superfluous. Any error with regard to interrogatories

is entirely subsumed within our finding of qualified immunity.

E. District court's failure to submit a letter from Live Oak's City Manager Faesler to Police Chief

Jackley.

Liberda contends that the trial court erred in excluding a letter written by Faesler, dated April

13, 1988, which proposed that Jackley resign from his job as police chief. Liberda contends that the

letter was relevant to proving a causal link between municipal policy and Britt's excessive use offorce. The letter alleges that Jackley: (i) mishandled evidence; (ii) improperly seized pornography

for personal use; (iii) engaged in voyeuristic behavior with a cadaver; (iv) "mooned" subordinate

officers; (v) pulled down an officer's pants during a party; (vi) trespassed on private property; (vii)

improperly seized and mishandled narcotics; and (viii) shot at animals. While the letter does set forth

exceedingly embarrassing allegations about Jackley, it does not prove that Live Oak police officers

received inadequat e training. We find that the exclusion of this evidence was well within the

discretion of the trial court.

IV. CONCLUSION

Officer Britt is entitled to qualified immunit y primarily because he did not use disproportionate

force under the circumstances. Therefore, although Britt was not entitled to qualified immunit y in

Mouille he was able to refute the unchallenged allegations of Liberda the second time around. We

hold that Britt proved his actions were immune. Liberda failed to make out a case against Faesler,

Jackley, and the City of Live O ak. Consequently , the jury instructions drop out of the picture

alto g ether because our finding of qualified immunit y renders them meaningless. Further, the

exclusion of the letter was entirely within the discretion of the trial court. AFFIRMED.