New, et al v. City of San Antonio

* 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opinion should not be published and is not precedent except under the limited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
July 25, 2005
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 04-50100
_______________________
ALLEN JAMES NEW; TRUMAINE NEW,
Plaintiffs-Appellees,
versus
CITY OF SAN ANTONIO; ET AL,
Defendants,
PHILIP WANG, Individually,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Texas
SA-00-CV-1481-RF
Before JONES, WIENER, and CLEMENT, Circuit Judges.
EDITH H. JONES, Circuit Judge:*
Allen New and his son Trumaine (hereinafter the “News”)
sued San Antonio Police Officer Philip Wang, among other
defendants, under 42 U.S.C. § 1983 and state law for his alleged
use of excessive force during an arrest. A jury found in favor of
Officer Wang on all counts and issues including his defense of
qualified immunity. Following the entry of judgment for Officer

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Wang, the News moved for and were granted a new trial on the
grounds that the admission of evidence related to Allen New’s
cocaine possession was erroneous and tainted the jury’s verdict.
Officer Wang contends on appeal that his having to stand trial
again amounts to the improper denial of his immunity.
We must dismiss this appeal. The district court’s grant
of a new trial is an interlocutory order, not a final judgment as
prescribed by 28 U.S.C. § 1291, and Wang’s immunity does not in
this instance afford an exception to the final judgment rule.
I. BACKGROUND
The material facts underlying this § 1983 suit were hotly
disputed. On March 7, 1999, Allen New and his son Trumaine went
fishing with David Castano at Pecan Valley Park in San Antonio.
Because Trumaine was thirsty, Castano drove Allen (sitting in the
front passenger side of the Honda Civic) and Trumaine (sitting in
the back seat) to a nearby convenience store. As they left the
convenience store, Castano became disturbed that Officer Wang was
traveling immediately behind them. Castano asserted that he turned
into a random driveway, 570 Morning View Drive, which Officer Wang
identified as a known crack house. When Officer Wang thought he
saw Castano making a quick drug transaction, Wang stopped and
questioned the suspects. Castano’s name, run through the computer,
turned up on two outstanding warrants.

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1 Charges against Allen New for possession of a controlled substance,
assaulting a police officer, and resisting arrest were all dismissed without
prosecution.
3
As Officer Wang was attempting to handcuff Castano, he
noticed Allen New digging in his back pants pocket. Officer Wang
ordered Allen New to place his hands on the dashboard. Initially,
Allen New complied with the request, but, as soon as Officer Wang’s
attention was refocused on handcuffing Castano, Allen began digging
in his back pocket again. Officer Wang commanded Allen a second
and third time to place his hands on the dashboard, but Allen
disregarded him. Convinced that Allen’s actions placed him at risk
of death or serious bodily injury, Wang jumped into the front seat
of the vehicle and forcefully attempted to restrain Allen.
Trumaine then joined in the struggle between Officer Wang and his
father. Responding to Wang’s emergency call, a fellow police
officer arrived to assist in subduing the News. Allen New is
approximately five feet, ten inches tall, and was visibly impaired
and had heart problems. His son Trumaine was then thirteen years
old and five feet, two inches tall at the time of the arrest.
Allen and Trumaine characterize the events as an
unprovoked beating that left Allen with a swollen eye and broken
nose and Trumaine with compacted teeth. Officer Wang, for his
part, searched the vehicle after the melee and found a rock of
crack cocaine in the seat where Allen New had been digging in his
back pocket.1

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The News sued Officer Wang individually and in his
official capacity under 42 U.S.C. § 1983 and pendent state law for
violating their right to be free from the use of excessive force.
After discovery, Officer Wang moved unsuccessfully for summary
judgment on qualified immunity; genuinely disputed issues of
material fact rendered summary disposition inappropriate.
At trial, the district court admitted evidence of Allen
New’s alleged possession of the crack cocaine, its admission
preceded by a lengthy limiting instruction as to the weight the
jury could afford the evidence. The court understood that the
nugget of crack cocaine powerfully supported Officer Wang’s
contention that Allen New was reaching for something in his back
pocket — albeit not a weapon of any sort — even as the same
evidence separately prejudiced Allen, not only by casting doubt on
his veracity but by injecting an extraneous derogatory issue. The
jury returned a unanimous verdict that Officer Wang had not
violated the News’ constitutional rights to be free from
unreasonable search and seizure and from excessive force, and the
jury found facts that entitled Wang to qualified immunity on all
counts.
Nevertheless, following the entry of judgment on the
verdict, the district court granted the News’ motion for new trial
based on proceedings so “corrupted by the manner in which the Court
handled the admission of the cocaine possession as to taint the
jury’s verdict.” The district court further commented:

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The manner of the admission, and not necessarily the
admission itself, is grounds for a new trial because the
evidence was not properly addressed before trial and the
limiting instruction offered to the jury was given in
haste with little clarity and precision. As admitted and
instructed, the evidence’s prejudice far outweighed its
probative value. The evidence of drug possession is
potentially relevant to the issues properly before the
jury, including probable cause and the Officer’s
subjective perception of the events.
Officer Wang has appealed. He argues that the district
court should not have disturbed the jury’s verdict because the
limiting instruction was not erroneous.
II. JURISDICTION
Before reaching the merits, this court must consider
whether we have appellate jurisdiction. Kelly v. Moore, 376 F.3d
481, 483 (5th Cir. 2004). An order granting a new trial is
generally not appealable because such an order is interlocutory and
not a final judgment under 28 U.S.C. § 1291. Id.
As an exception to the prohibition on interlocutory
appeals, this court has jurisdiction to review denials of qualified
immunity asserted by government officers where the trial court’s
determination turns on a matter of law. See Mitchell v. Forsyth,
472 U.S. 511, 526, 105 S.Ct. 2806, 2815-16 (1985); Feagley v.
Waddill, 868 F.2d 1437, 1439 (5th Cir.1989). Officer Wang contends
that the district court’s grant of a new trial negates the
qualified immunity to which the jury found him entitled. This
effective denial of qualified immunity should, he asserts, provide
a jurisdictional foundation for his challenge to the new trial

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2 Corbell I was a provisional jurisdictional determination made by a
motions panel which is not binding on the oral argument panel to which the case
is submitted or on a later panel of this court. Northshore Development, Inc. v.
Lee, 835 F.2d 580, 583 (5th Cir. 1988); Fischer v. United States, 759 F.2d 461,
463 (5th Cir. 1985); E.E.O.C. v. Neches Butane Prods. Co., 704 F.2d 144 (5th
Cir. 1983).
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order. Officer Wang relies on a motions panel decision, Stevens v.
Corbell, 798 F.2d 120 (5th Cir. 1986) (“Corbell I”), as support for
the proposition that appellate jurisdiction over this interlocutory
appeal exists here.
Although Corbell I tends to support Officer Wang’s
invocation of jurisdiction in this case, it does not control. In
Corbell I, the jury found that unreasonable force had not been used
by the defendant state policemen in subduing the plaintiff. The
district court ordered a new trial on the ground that it had erred
in instructing the jury on the issue of intent. This court’s
motions panel held that the district court’s grant of a new trial
implicated the issue of the officers’ entitlement to qualified
immunity. Id.2
The subsequent oral argument panel declined to reconsider
the jurisdictional determination made earlier by the motions panel.
See Stevens v. Corbell, 832 F.2d 884, 887 (5th Cir.1987) (“Corbell
II”). Nevertheless, Corbell II ultimately affirmed the district
court’s order granting Stevens a new trial because, as a matter of
law, the district court had erroneously instructed the jury on the
issue of the officer’s intent. Id. at 891.

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Appealability in Corbell I turns on the court’s holding
that, as in Mitchell, the intertwining of jury instructions and
qualified immunity with the grant of a new trial could be reviewed
as a matter of law. Corbell II emphasized that the court was
reviewing only the legal sufficiency of the instructions. In this
case, by contrast, the new trial grant depended on the court’s
evidentiary ruling, a matter that can at most be reviewed for abuse
of discretion by this court. A discretionary call is not a pure
matter of law. Consequently, Wang’s appeal does not fit within the
Mitchell paradigm permitting us to review interlocutory legal
issues where qualified immunity is at stake. On this narrow basis,
the appeal must be DISMISSED.

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