     Case: 11-60318     Document: 00511881644         Page: 1     Date Filed: 06/08/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                            June 8, 2012

                                       No. 11-60318                        Lyle W. Cayce
                                                                                Clerk

ZETA MCBROOM,

                                                  Plaintiff-Appellant
v.

SHERIFF GEORGE PAYNE, JR., officially; OFFICER JOHN MASSENGILL,
officially and in his individual capacity,

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:06-CV-1222


Before REAVLEY, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellant Zeta McBroom brought excessive-force claims under
42 U.S.C. § 1983 against officers of the Harrison County Sheriff’s Department
arising from her shooting and paralysis by Defendant-Appellee Officer John
Massengill. McBroom appeals a jury verdict in favor of Massengill and a
summary judgment in favor of Defendant-Appellee Sheriff George Payne, Jr.,
whom McBroom sued in his official capacity as Harrison County’s policymaker


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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under Monell v. Dep’t of Social Services, 436 U.S. 658, 98 S. Ct. 2018 (1978).
McBroom contends that the district court erred in denying her motion for a new
trial on the grounds that the jury’s verdict was against the overwhelming weight
of the evidence and that the district court erred in a number of evidentiary
rulings. We find no abuse of discretion in the district court’s evidentiary rulings
and refusal to grant a new trial, and the jury verdict leaves no underlying
constitutional deprivation to support the Monell claim.
      We AFFIRM.
                                   I. Background
      In January 2006, McBroom was driving her Ford Bronco near her home.
She was intoxicated, and Massengill saw her run off the road several times. He
drew behind her in his patrol car and signaled her to pull over, but she fled.
After an earlier drunk driving incident in October 2005, McBroom had been
taken to Harrison County Detention Center (“HCDC”), where she alleges she
was beaten by several Sheriff’s Department officers who told her they would kill
her if she was ever seen at HCDC again.1 Massengill pursued McBroom, who
ran two stop signs before turning onto a highway. On the highway, she twice
swerved into the oncoming lane, nearly hitting another car each time. Officer
Justin Branning joined the chase after McBroom ran a red light at a highway
intersection.
      McBroom led the officers onto smaller roads before she turned onto
Saucier Lane, a one-lane road bounded by shallow ditches and woods. The
events that followed were the subject of confused and conflicting testimony from
McBroom, Massengill, Branning, and a number of bystanders. The material
facts, however, are largely established by expert reconstruction based on
physical evidence, though the precise sequence of events and the exact physical


      1
          Massengill was not among the officers who assaulted McBroom at HCDC.

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                                   No. 11-60318
distances involved    remain unclear.       We relate the account that can be
reasonably inferred from all of the trial evidence, considered in the light most
favorable to the jury’s verdict.
      McBroom sideswiped a debris pile as she turned onto Saucier Lane, drove
about 200 feet down the lane, and then brought the Bronco to a stop. Massengill
then turned the corner, drove some distance toward the stationary Bronco and
stopped his car about forty feet behind it. Officer Branning then arrived,
parking his car at the turn onto the lane. McBroom then put the Bronco in
reverse and accelerated toward Massengill’s patrol car. Branning got out of his
vehicle and began running toward Massengill’s car. Massengill observed that
Branning’s car blocked the lane behind him. The patrol car’s emergency brake
was on when the Bronco collided with the front of the patrol car. The Bronco
crushed the push-bar attached to the car’s frame, and began pushing the car
backward. Massengill fired his pistol through his patrol car’s front windshield
at the rear driver’s side of the Bronco, discharging eleven rounds in about three
seconds. After pushing the patrol car about nine feet, the Bronco began moving
forward again. It separated from the patrol car, traveled about eighty feet down
the lane, and then veered into the woods, coming to a stop about twenty feet
from the lane. Two of Massengill’s shots ricocheted off of the inside of his
bulletproof windshield. The remaining bullets created a cluster of holes in the
windshield. Eight bullets entered the rear driver’s side of the Bronco. One of
those bullets struck McBroom in the spine, instantly paralyzing her from the
neck down. McBroom was immobile, slumped to her left side, as the Bronco
traveled forward and veered into the trees.
      McBroom brought various state-law and federal civil-rights claims against
Harrison County, Branning, Massengill, and Payne. Only the excessive-force
claim against Massengill went to trial. The jury found for Massengill, and
McBroom moved for a new trial under FED. R. CIV. P. 59. The district court

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denied the motion, and entered judgments reflecting the jury verdict and the
grant of summary judgment for Payne. McBroom then brought this appeal.
                                 II. Discussion
A. Sufficiency of the Evidence
      We first address McBroom’s contention that the district court should have
granted a new trial on the ground that the verdict for Massengill was
inadequately supported by the evidence. “A trial court should not grant a new
trial on evidentiary grounds unless the verdict is against the great weight of the
evidence.” Pryor v. Trane Co., 138 F.3d 1024, 1026 (5th Cir. 1998) (internal
quotation marks and citation omitted). That determination “is within the sound
discretion of the trial court, and we will not reverse its ruling without a clear
showing that this discretion has been abused.” Id. We must therefore affirm the
judgment unless the evidence, viewed in the light most favorable to the verdict,
so strongly favors the movant that reasonable people could not have found as the
jury did. Id.
      To prevail on her excessive force claim, McBroom had to establish that her
injuries “resulted directly and only from a use of force that was clearly excessive
. . . and clearly unreasonable.” Ramirez v. Knoulton, 542 F.3d 124, 128 (5th Cir.
2008) (internal quotation marks and citation omitted). The only dispute in this
case is whether Massengill acted reasonably in firing at the Bronco.          It is
reasonable to use deadly force to address “a credible, serious threat to the
physical safety of the officer or to those in the vicinity.” Hathaway v. Bazany,
507 F.3d 312, 320 (5th Cir. 2007). The reasonableness of an officer’s force is
evaluated “in light of the facts and circumstances confronting [him].” Graham
v. Connor, 490 U.S. 386, 397, 109 S. Ct. 1865, 1872 (1989) (internal quotation
marks and citation omitted). In this case, the threat to Massengill continued at
least until the point when the Bronco began moving forward off the front of his
patrol car. See Hathaway, 507 F.3d at 321-22.

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      McBroom alleges that Massengill fired the shot that paralyzed her after
the Bronco started moving forward, away from his car. She makes much of
various inconsistences between the testimony of Branning, Massengill, and a
number of bystanders concerning when Massengill began firing and several
other details of the shooting. Though she does not remember how the Bronco
was shifted to drive and accelerated after the impact with the patrol car, she
argues that she must have done those things before she was shot and paralyzed.
We agree that McBroom could not have deliberately manipulated the Bronco’s
controls after she was paralyzed, but a reasonable jury could nevertheless have
found for Massengill. Uncertainty about when Massengill fired is largely
dispelled by the testimony of his expert shooting analyst, Alexander Jason. The
holes in the patrol car’s windshield and the holes in the back of the Bronco
enabled Jason to reconstruct the bullets’ flight paths and determine the relative
position of the vehicles when they were fired. The rounds that struck the Bronco
were fired while the Bronco was in contact with the patrol car, some while the
Bronco’s rear portion was directly on top of the car’s hood. As to how the Bronco
was shifted in to drive, the jury could have inferred that the shift lever may have
been pushed by McBroom’s torso or one of her arms as she slumped over, or she
may have shifted just before the bullet struck her. The Bronco would have
accelerated forward if her right leg was positioned such that its weight brought
her foot down against the gas pedal after she was paralyzed. The district court
did not abuse its discretion in finding that sufficient evidence supported the
verdict.
B. The District Court’s Evidentiary Rulings
      We next consider McBroom’s contention that the district court should have
granted a new trial because of erroneous evidentiary rulings.            We review
evidentiary rulings for abuse of discretion, and we will reverse only if the district



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court’s decision affects a substantial right of a party. First Nat’l Bank of
Louisville v. Lustig, 96 F.3d 1554, 1574 (5th Cir. 1996).
      McBroom sought to present evidence of the October, 2005 beating at the
HCDC, and to relate that experience on the stand in order to explain why she
fled from Massengill. The district court did not abuse its discretion in refusing
to allow her to do so. McBroom’s reasons for fleeing are not relevant to the
reasonableness of Massengill’s decision to fire at the Bronco.
      McBroom argues that the district court erred in not permitting her police
procedures expert, Dennis Waller, to testify that Massengill used excessive force.
“[T]estimony in the form of an opinion or inference otherwise admissible is not
objectionable because it embraces an ultimate issue to be decided by the trier of
fact.” FED.R.EVID . 704(a). But that does not permit experts to offer legal
conclusions, United States v. Izydore, 167 F.3d 213, 218 (5th Cir. 1999), and
whether an officer’s use of his firearm was unreasonable for purposes of the
Fourth Amendment is a legal conclusion. United States v. Williams, 343 F.3d
423, 435 (5th Cir. 2003). There was no abuse of discretion on this point.
      McBroom contends that the district court abused its discretion in refusing
to allow her counsel to have Massengill’s police procedures expert, Mark
Dunston, read aloud three passages from Total Survival, a book he co-authored
about police procedures. Total Survival was established as a learned treatise on
police procedures under FED. R. EVID. 803.18(B) when Dunston testified on cross-
examination that it is authoritative on that topic. McBroom’s counsel wished to
have Dunston read aloud three passages from Total Survival. We find no abuse
of discretion in the district court’s refusal to allow any of them.
      The first passage explains that “[f]ew endeavors offer more temptations to
be dishonest than law enforcement.”          The district court did not abuse its
discretion in refusing to allow this passage.         The jury was aware that
Massengill’s and Branning’s testimony was self-interested, and the fact that

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police often face circumstances in which they might benefit by lying is irrelevant
to whether they actually did lie in this case.
       The second passage explains that the stressful circumstances of a chase
often impair police officers’ judgment. The third explains that the stress of a
chase or confrontation triggers a neurochemical response in officers’ brains that
distorts their experience and later recollection of events such that “details of the
actual threat are greatly enhanced, . . . other visual stimuli are excluded and
perceptual errors result.” The district court viewed these passages as invading
the jury’s role of determining the credibility of the witnesses. We do not share
that view.2 But the second passage in any event is cumulative. Massengill
agreed on cross-examination that “pursuits can cloud officers’ judgments,” and
McBroom’s counsel was permitted to read aloud language to the same effect from
the Sheriff’s Department’s own written policies. Regarding the third passage,
Total Survival was not established as authoritative on the neurochemical effects
of acute stress on human perception and memory. Moreover, the other evidence
amply demonstrated that Massengill’s and Branning’s memories of several
details of the shooting were contradictory and ill-formed.                  Branning even
admitted that his stress during the shooting had affected his ability to recall
what exactly had happened.
C. McBroom’s Monell Claim
       We do not reach the merits of the district court’s summary judgment
disposing of McBroom’s official-capacity suit against Payne, because the jury’s
verdict for Massengill leaves no underlying constitutional violation on which to
base municipal liability. See Piotrowski v. City of Houston, 237 F.3d 567, 578

       2
         The second passage concerned officers’ judgment during a chase; it said nothing about
credibility. Regarding the third, we have held that admitting expert testimony concerning the
reliability of testimony from memory can be helpful to the jury in evaluating credibility if it
counteracts “common myths about an individual’s capacity for perception,” like the “belie[f]
that witnesses remember better when they are under stress.” United States v. Moore, 786 F.2d
1308, 1312 (5th Cir. 1986) (internal citation omitted).

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(5th Cir. 2001) (“[M]unicipal liability under section 1983 requires proof of three
elements: a policymaker; an official policy; and a violation of constitutional
rights whose moving force is the policy or custom.” (internal quotation marks
and citation omitted)).
                                III. Conclusion
      The district court’s judgment is AFFIRMED.




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