Brown v. McComb Police Dept, et al

* 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that this opinion should not be published and is not precedent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
Fifth Circuit
F I L E D
December 17, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-60034
Summary Calendar
WILLIE M. BROWN,
Plaintiff-Appellant,
versus
CITY OF MCCOMB MISSISSIPPI POLICE DEPARTMENT; SHANNON
SULLIVAN, individually and in his official capacity as a
policeman; KENNETH BAPTIST, individually and in his official
capacity as a policeman; CITY OF MCCOMB MISSISSIPPI
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:00-CV-593
--------------------
Before KING, Chief Judge, and DAVIS and BARKSDALE, Circuit
Judges.
PER CURIAM:*
Plaintiff Willie M. Brown appeals bench and jury verdicts in
favor of the defendants in his action brought under the
Mississippi Tort Claims Act (MTCA) and 42 U.S.C. § 1983. The
jury decided against Brown on the Fourth Amendment excessive-
force claim brought under 42 U.S.C. § 1983, and the district
court decided against him on the MTCA claims. The court also

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denied Brown’s timely motion for judgment as a matter of law
(JML) or a new trial. The claims arise from Brown’s arrest
following an 11-mile pursuit and an altercation in Brown’s
driveway during which Brown suffered a serious eye injury.
Brown contends that the district court erred by denying his
motion for JML or a new trial, particularly in light of the
jury’s inconsistent responses to special interrogatories. The
jury answered its first interrogatory by determining that Brown
did not resist arrest after he stopped his car in his driveway.
The jury nonetheless concluded that the arresting officers did
not use excessive force in making the arrest, even though Brown
was injured.
When reviewing apparently inconsistent jury answers to
special interrogatories, we “must attempt to reconcile the jury’s
findings, by exegesis, if necessary, before we are free to
disregard the jury’s verdict.” Ellis v. Weasler Engineering, 258
F.3d 326, 343 (5th Cir. 2001) (internal quotations and citation
omitted). We “view the evidence in the light most favorable to
upholding the jury’s decision by a finding of consistency.” Id.
In addition to examining the jury interrogatories, the reviewing
court must consider the court’s instructions to the jury.
Alverez v. J. Ray McDermott & Co., 674 F.2d 1037, 1040 (5th Cir.
1982) (citation omitted).
In light of the interrogatories, the court’s instruction on
excessive force, the lack of an instruction on resisting arrest,

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and the circumstances surrounding the incident, we view the
jury’s answers as reconcilable. The jury evidently determined
that any use of force by the officers was not excessive due to
their reasonable belief that Brown was attempting to resist them
or to flee, as he had done during the 11-mile pursuit. This is
likely even if the jury may have concluded that Brown’s actions
in the driveway did not constitute resisting arrest in some
particular legal sense. The jury’s verdict need not be set aside
as inconsistent. See Ellis, 258 F.3d at 343.
We review the denial of Brown’s motion for JML de novo,
viewing all evidence in the light most favorable to the
defendants. See Burroughs v. FPP Operating Partners, 28 F.3d
543, 546 (5th Cir. 1994). The jury had a reasonable evidentiary
basis for concluding that the officers reasonably perceived a
threat from Brown and responded without excessive force. Brown
fails to show that “the evidence at trial points so strongly and
overwhelmingly in [his] favor that reasonable jurors could not
reach a contrary conclusion.” See Omnitech Int’l v. Clorox Co.,
11 F.3d 1316, 1323 (5th Cir. 1994).
Brown is not entitled to a new trial unless the verdict was
against the great weight of the evidence as viewed in the light
most favorable to the jury’s verdict. See Dawson v. Wal-Mart
Stores, Inc., 978 F.2d 205, 208 (5th Cir. 1992). There was ample
evidence to support the jury’s conclusion that the officers did
not use excessive force under the circumstances. Therefore the

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district court did not abuse its discretion by denying the new
trial motion. See id.
Brown contends that the district court abused its discretion
by not allowing Brown to present testimony about two past
incidents involving allegations of the officers’ use of excessive
force. He argues that the evidence was relevant to showing that
the city of McComb had a policy or custom of condoning excessive
force. Were we to assume that the exclusion of the evidence was
erroneous, there could nonetheless be no municipal liability
because the jury found no underlying excessive-force
constitutional violation. See Becerra v. Asher, 105 F.3d 1042,
1047-48 (5th Cir. 1997). Thus, any error in excluding the
evidence could not have affected Brown’s substantial rights and
was therefore harmless. See Polanco v. City of Austin, Tex., 78
F.3d 968, 982 (5th Cir. 1996).
Brown argues that the evidence was contrary to the district
court’s conclusion that the officers did not act with “reckless
disregard” for Brown’s safety as required to incur liability
under the MTCA. See MISS. CODE. ANN. § 11-46-9(1)(c). Under
Mississippi case law, “‘reckless disregard’ embraces willful or
wanton conduct which requires knowingly and intentionally doing a
thing or wrongful act.” Maye v. Pearl River County, 758 So. 2d
391, 394 (Miss. 1999). The record contains evidence to support
the district court’s apparent conclusion that Brown’s injury
likely was the result of negligence or an accident rather than

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the wanton use of force. Brown fails to show that the district
court’s factual finding was clearly erroneous, and he therefore
is not entitled to reversal on the MTCA claims. See Williams v.
Kaufman County, 343 F.3d 689, 696 (5th Cir. 2003) (reviewing for
clear error).
Brown contends for the first time on appeal that MISS. CODE.
ANN. § 11-46-9(1)(c) is unconstitutional because it gives police
unlimited power to use excessive force in disregard of the Fourth
Amendment. This court need not consider the issue because no
miscarriage of justice will result if we do not; the MTCA plainly
had no effect on Brown’s ability to assert and bring to trial his
Fourth Amendment claim under 42 U.S.C. § 1983. See North Alamo
Water Supply Corp. v. City of San Juan, Tex., 90 F.3d 910, 916
(5th Cir. 1996).
The judgment of the district court is AFFIRMED.

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