Holley Jones v. Andrew Barlow, et al.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11852
Non-Argument Calendar
____________________
HOLLEY JONES,
Plaintiff-Appellant,
versus
ANDREW BARLOW,
CHRISTIAN ROBLES,
Defendants- Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 2:19-cv-00114-JES-NPM
____________________
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2 Opinion of the Court 22-11852
Before N EWSOM , G RANT, and B RASHER , Circuit Judges.
PER CURIAM:
This appeal follows a jury verdict for officers Christian Ro-
bles and Andrew Barlow on Holley Jones’s excessive force claims
against them for tasing him. Jones raises two issues on appeal. First,
he contends the district court erred denying his motion for a new
trial on the ground that the verdict was against the weight of the
evidence. Second, he argues that, although he failed to object at
trial, the district court plainly erred by admitting testimony from
non-party witnesses that Jones contends were mere legal conclu-
sions. We disagree with both arguments and affirm.
First, the district court did not abuse its discretion by deny-
ing Jones’s motion for a new trial. A district court properly denies
a motion for a new trial when, after independently weighing the
evidence, the court concludes that the verdict is not inconsistent
with the great weight of the evidence.
Ramsey v. Chrysler First,
Inc., 861 F.2d 1541, 1544 (11th Cir. 1988). We review the denial of
a motion for a new trial for abuse of discretion.
Williams v. Val-
dosta, 689 F.2d 964, 974 (11th Cir. 1982). “Deference must be given
to the judgment of the trial judge, who observed the witnesses and
considered the evidence ‘in the context of a living trial.’”
Ramsey,
861 F.2d at 1544 (quoting
Shows v. Jamison Bedding, 671 F.2d 927,
930 (5th Cir. 1982)).
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22-11852 Opinion of the Court 3
Jones contends the verdict for the officers is against the
weight of the evidence because video evidence clearly contradicts
the officers’ testimony that Jones tried to fight them, which they
testified was their justification for tasing Jones. Specifically, he ar-
gues the officers’ use of force was excessive because he did not
threaten them. The officers respond that the district court did not
abuse its discretion because the video evidence is open to conflict-
ing interpretations; therefore, the officers’ testimony does not di-
rectly contradict it. Jones chiefly relies on
Scott v. Harris, 550 U.S.
372 (2007), to support his argument. To be sure, the Supreme
Court admonished in
Scott that courts should not credit one party’s
version of events that is “blatantly contradicted by the record, so
that no reasonable jury could believe it.”
Scott, 550 U.S. at 380. But
in
Scott, the video evidence not only conflicted with the version of
events that one party offered.
Id. at 378-80. The video left no doubt
that the party’s story was unbelievable.
See id.
Here, a jury viewed the video evidence roughly 100 times.
The jury found for Barlow and Robles. The district court ruled that
finding was consistent with the great weight of the evidence. After
viewing the video, we agree.
The video from Robles’s and Barlow’s bodycams is open to
interpretation. The video shows that Jones went back inside a 7-
Eleven immediately after he complied with the officers’ request
that he follow them outside. As Jones headed back inside, Barlow
followed Jones, telling him to stay outside with the officers. As
Jones passed through the 7-Eleven door on his way back into the
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4 Opinion of the Court 22-11852
store, he turned back toward officer Barlow, putting himself face-
to-face with Barlow in the 7-Eleven doorway. As Jones turned to-
ward Barlow, Barlow appears to try to grab his arm to stop him
from re-entering the store, but Jones resisted. Then, Jones turned
and sprinted toward a patron standing at the 7-Eleven counter. Bar-
low drew his taser after the doorway encounter and fired it after
Jones reached the patron standing at the counter. Eight seconds
passed between the time Jones first touched the 7-Eleven door to
when Barlow fired his taser.
We cannot conclude that this video evidence directly con-
tradicts the officers’ testimony that Barlow tried to fight them. To
begin, Jones touched officer Robles several times inside the store
before Jones complied with the officers’ request that he come out-
side with them. Jones touched Robles even after Robles instructed
Jones not to touch him. Then, Jones assumed a threatening stance
toward Barlow in the doorway as the two grabbed at each other.
And finally, after resisting the officers’ efforts to keep him outside,
Jones ran directly at a 7-Eleven patron at the store counter.
Whether an officer’s use of force is objectively reasonable
depends on, among other things, whether a suspect poses a threat
to an officer or someone else.
Stryker v. City of Homewood, 978
F.3d 769, 773 (11th Cir. 2020). One reasonable interpretation of the
video evidence is that Jones was a potential threat to Barlow and
the store patron when Barlow tased him. We cannot say the district
court abused its discretion by concluding that the jury’s verdict for
the officers was not against the great weight of the evidence.
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22-11852 Opinion of the Court 5
Second, Jones argues that the district court plainly erred by
admitting—without objection from Jones—witness testimony
amounting to legal conclusions. But Jones fails to satisfy the lofty
threshold for plain error in a civil case.
Civil plain error “require[s] a greater showing of error than
in criminal appeals.”
Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1257
(11th Cir. 2017). “[W]e will only review a waived objection, for
plain error, if necessary in the interests of justice.”
Id. Here, Jones
does not argue that correction of the purported error is necessary
in the interests of justice. Instead, he argues that the testimony’s
admission impacted the outcome of the district court proceedings.
Whether a plain error impacts the outcome of the proceedings is
insufficient to find civil plain error.
See United States v. Olano, 507
U.S. 725, 734 (1993);
United States v. O’Keefe, 461 F.3d 1338, 1348
n.10 (11th Cir. 2006).
Jones has not established that the admission of this testi-
mony was plain error. One of the purported legal conclusions that
Jones challenges is testimony from a non-party witness about
whether Barlow reasonably or justifiably used force by tasing
Jones. But Jones concedes that he elicited testimony from one of
those witnesses—a witness Jones called to testify—about why the
witness concluded in a report that Barlow’s use of force was justi-
fied. Further, Jones elicited testimony from the witness that the
conclusion was accurate. With respect to this witness, Jones invited
any error relating to the witness’s testimony that Barlow’s use of
force was justified.
See United States v. Parikh, 858 F.2d 688, 695
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6 Opinion of the Court 22-11852
(11th Cir. 1988) (holding that a criminal defendant invited any error
relating to the admission of statements in a document because the
defendant asked a witness about the document’s contents). And in-
vited error precludes our review, even for plain error.
See United
States v. Frank, 599 F.3d 1221, 1240 (11th Cir. 2010) (ruling that
invited error trumps plain error).
Given that Jones elicited some of the very testimony that he
challenges, and that the rest of it is of the same nature, we cannot
say that it is a miscarriage of justice to decline to review the admis-
sion of any of this testimony. Beyond challenging the testimony
that Barlow justifiably tased him, Jones also challenges other wit-
nesses’ testimony that Barlow and Robles acted reasonably and
that they had reasonable suspicion to stop Jones. This other testi-
mony largely overlaps with the testimony Jones elicited and is cu-
mulative in effect. Even more, the district court admitted into evi-
dence the report about which Jones questioned one of the wit-
nesses. The report stated the force was necessary and justified.
Whatever the interests of justice require, they certainly do not re-
quire us to review the admission of testimony that mirrors the tes-
timony Jones elicited himself.
For these reasons, the district court is AFFIRMED.
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