                                                             F I L E D
                                                       United States Court of Appeals
                                                               Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                               DEC 6 2000
                         FOR THE TENTH CIRCUIT
                                                         PATRICK FISHER
                                                                   Clerk

PABLO CRUZ,

            Plaintiff-Appellant,

      and

ERNEST ROMERO, individually and
as parent and next friend of SUZETTE
ROMERO and ERNISSA ROMERO,

            Plaintiff,

v.                                             No. 99-2358
                                        (D.C. No. CIV-98-110-LH)
ROBERT GUTIERREZ; CHRISTIAN                     (D. N.M.)
MONTANO; GILBERT MARTINEZ,

            Defendants-Appellees.



LEROY ROMERO and
EVANGELINA ROMERO,
individually and as parents and next
friends of Justina Romero, Ryan
Romero, Kevin Romero, Leroy
Romero, Jr., and Jacklyn Romero,
minors,

            Plaintiffs-Appellants,
v.                                              99-2364
                                          (CIV-98-44-LH/DJS)
ROBERT GUTIERREZ,                              (D. N.M.)

            Defendant-Appellee.
                           ORDER AND JUDGMENT           *




Before BALDOCK, ANDERSON,            and HENRY , Circuit Judges.




       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

these appeals.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are

therefore ordered submitted without oral argument.

       In appeal No. 99-2358, plaintiff-appellant Pablo Cruz appeals the district

court’s denial of his motion for judgment as a matter of law on his 42 U.S.C.

§ 1983 civil rights complaint against defendant Robert Gutierrez. In companion

appeal No. 99-2364, plaintiffs-appellants Leroy and Evangelina Romero appeal

pro se from the jury’s verdict in favor of defendant Robert Gutierrez on their

similar § 1983 civil rights complaint. We have jurisdiction pursuant to 28 U.S.C.

§ 1291, and we affirm the judgment in both cases.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

                                         -2-
                                  I. Background

      The facts underlying both of these appeals are the same. On June 23, 1996,

defendant Robert Gutierrez, a New Mexico State Police Officer, was sent to a

location near Montezuma, New Mexico, to investigate a stolen vehicle report.

While taking the report from the alleged victims, they identified Johnny Roybal as

the person who had stolen the car and pointed him out to Officer Gutierrez as

running and hiding on adjacent property belonging to Leroy Romero. Officer

Gutierrez walked to the fence surrounding the Romero property and repeatedly

requested that Leroy Romero come to the fence to answer some questions. Leroy

replied with numerous profanities, and said that, if Officer Gutierrez wanted to

talk to him, he could come to him.

      There were numerous other people with Leroy, including his brother Ernest

Romero, their wives and children, and Mr. Cruz. Officer Gutierrez testified at

trial that after he crossed the fence and approached the gathering, Leroy, his

brother, and Mr. Cruz began to position themselves around him in a threatening

fashion. Leroy continued to respond to Officer Gutierrez’s questions and

comments with profanity. Officer Gutierrez testified that they repeatedly said

they were going to “kick his ass.” A witness testified that it appeared that the

men surrounding Officer Gutierrez were “going to jump him.” Appellant’s App.




                                        -3-
at 148. When Leroy raised his hand toward him, Officer Gutierrez hit Leroy’s

arm with his baton.   1



      When the men refused Officer Gutierrez’s order to move back and

continued to come toward him, he sprayed them with pepper spray. According to

Officer Gutierrez’s testimony, at this point Leroy threatened to go into the house,

get a gun, and kill him. Using his shoulder radio, Officer Gutierrez called for

backup. When Leroy entered his house, Officer Gutierrez took cover behind a

vehicle in the event he returned with a weapon. When the two backup officers

arrived, they observed a crowd of people yelling obscenities at Officer Gutierrez.

The officers testified that the group appeared to be intoxicated, and were

behaving in an aggressive manner. Officer Gutierrez requested that the backup

officers aid him in arresting Leroy and Ernest Romero and Mr. Cruz. Leroy and

Ernest Romero resisted arrest and had to be restrained and handcuffed. Mr. Cruz

fled the scene.

      The officers learned from a bystander that Mr. Cruz had fled to a house on

the back of the property. Upon approaching the house, they saw Mr. Cruz

standing in a window. When Officer Gutierrez requested that Mr. Cruz come out



1
       There was conflicting testimony as to the circumstances which led to
Officer Gutierrez’s action. Leroy testified that he only raised his arm to order the
officer off of his property, while Officer Gutierrez testified that he thought Leroy
was reaching out to grab his shirt.

                                        -4-
of the house, Mr. Cruz replied with verbal obscenities, an obscene gesture, and

said, “if you want me, come get me.”       Id. at 104. There appeared to be no glass in

the window. Fearing that Mr. Cruz may have a weapon and that he may move out

of sight of the officers, Officer Gutierrez and another officer grabbed Mr. Cruz

and pulled him through the window opening into the yard where they handcuffed

and arrested him.

       Mr. Cruz and the Romeros brought identical 42 U.S.C. § 1983 civil rights

complaints against Officer Gutierrez and four other police officers involved in the

incident, alleging no probable cause, excessive force, unreasonable search, and

malicious prosecution in violation of their Fourth and Fourteenth Amendment

rights. 2 Both complaints also alleged state law claims for assault, battery, false

arrest, false imprisonment, malicious prosecution, and trespass. The district court

granted defendants’ request to consolidate the two actions, and denied their

respective motions for summary judgment.

       Following a three-day joint trial, the jury found in favor of Officer

Gutierrez and against plaintiffs.   3
                                        Mr. Cruz moved for judgment as a matter of law

under Fed. R. Civ. P. 50 at the close of evidence, but before the case went to the

2
      Ernest Romero joined Mr. Cruz in his complaint, both individually and as
parent and next friend of his two children. Ernest did not join Mr. Cruz in this
appeal.
3
      All of the defendants except Robert Gutierrez were dismissed from the
lawsuits by stipulation prior to trial.

                                             -5-
jury. The trial court denied the motion. Mr. Cruz limits the scope of his appeal

to the single contention that the district court erred in not awarding judgment as a

matter of law on Mr. Cruz’s Fourth Amendment claims. More specifically,

Mr. Cruz argues that the district court should have granted his motion because,

(1) it was uncontested that Mr. Cruz was seized in his home; (2) it was

uncontested that defendant did not have Mr. Cruz’s permission to enter his

property; (3) it was uncontested that defendant did not have a warrant to enter

Mr. Cruz’s property; (4) there were no exigent circumstances alleged; and

(5) Officer Gutierrez used excessive force in his arrest of Mr. Cruz.

      On appeal, the Romeros allege that (1) the jury was biased against them

based on their race and national origin; (2) the jury verdict was not supported by

substantial evidence; and (3) there was no probable cause or exigent

circumstances justifying Officer Gutierrez’s entry onto their property or the arrest

of Leroy Romero.


                           II. Discussion - No. 99-2358

      Under Fed. R. Civ. P. 50(a)(1),

             If during a trial by jury a party has been fully heard on an issue
      and there is no legally sufficient evidentiary basis for a reasonable
      jury to find for that party on that issue, the court may determine the
      issue against that party and may grant a motion for judgment as a
      matter of law against that party with respect to a claim or defense
      that cannot under the controlling law be maintained or defeated
      without a favorable finding on that issue.

                                         -6-
       “We review the district court’s denial of a motion for judgment as a matter

of law de novo, applying the same legal standard as the district court.”         Brown v.

Gray , 227 F.3d 1278, 1285 (10th Cir. 2000). Mr. Cruz was entitled to judgment

as a matter of law only if the “evidence points but one way and is susceptible to

no reasonable inferences supporting the party opposing the motion.”         Id.

(quotation omitted). In considering Mr. Cruz’s appeal, and “reviewing the record,

we will not weigh evidence, judge witness credibility, or challenge the factual

conclusions of the jury.”   Id. (quotation omitted).

       Formal arrests must be supported by probable cause.        Latta v. Keryte , 118

F.3d 693, 699 (1997). “Probable cause to arrest exists when officers have

knowledge of facts that would warrant a person of reasonable caution in the belief

that an offense has been or is being committed.”       Id. (quotation omitted). “In

determining whether probable cause exists, we look to the circumstances as they

would have appeared to a prudent, cautious, trained police officer.”       Id.

(quotation omitted).

       Here, the circumstances amply supported Officer Gutierrez’s decision to

arrest Mr. Cruz. Mr. Cruz had participated in the threats against Officer

Gutierrez and had fled the scene after threats of producing a gun had been

directed toward Officer Gutierrez. Officer Gutierrez had reason to suspect that

Mr. Cruz may have fled in order to arm himself.       See e.g., United States v. Dozal      ,


                                            -7-
173 F.3d 787, 792 (10th Cir. 1999) (holding that probable cause to arrest exists if,

“under the totality of circumstances,” a reasonable officer believes a crime is

being committed). In light of the testimony regarding the prior hostile

confrontation, the threats of violence, and Mr. Cruz’s decision to flee the scene, it

is clear that the jury could have found that Officer Gutierrez had probable cause

to arrest Mr. Cruz.

       It is well established that a warrantless arrest inside a suspect’s home is

unconstitutional unless it is justified by exigent circumstances or consent.   See

e.g., New York v. Harris , 495 U.S. 14, 15-17 (1990) (holding it “evident” that

officers violated Fourth Amendment when they knocked on suspect’s door,

displayed their guns and badges when he answered, entered the apartment, and

arrested suspect); Payton v. New York , 445 U.S. 573, 583, 590 (1980) (holding

absent exigent circumstances or consent, police may not cross the threshold of a

suspect’s house without a warrant to make a routine felony arrest).       4



       The facts and circumstances known to Officer Gutierrez at the time he

arrested Mr. Cruz would have caused a reasonable officer to conclude that any

delay in the arrest could be dangerous. Officer Gutierrez’s testimony indicated



4
       We note that the arrest did not take place    inside Mr. Cruz’s home and that
the officers never crossed the threshold.      See Payton , 445 U.S. at 583, 590. The
location of the arrest was not an issue argued on appeal and is not germane to our
decision.

                                             -8-
that he was faced with three belligerent, profane, possibly intoxicated males who

made aggressive movements toward him as well as verbally threatening him.

Considering their threats to “kick his ass” and Leroy Romero’s threat involving a

gun, it was reasonable for Officer Gutierrez to believe that Mr. Cruz and the

Romero brothers posed a threat to him and his fellow officers.

      Moreover, Mr. Cruz fled the scene. Even if his testimony that he fled in

order to call the police was true, there was no way that Officer Gutierrez could

have known that was his intent. Officer Gutierrez testified that when they

approached Mr. Cruz’s house and saw him in the window, they were not able to

see his hands and did not know if he had a weapon. Officer Gutierrez stated that

he feared that if Mr. Cruz was armed and left the window, they would lose sight

of him, creating a dangerous situation for the officers. Prior to the removing Mr.

Cruz by force, Officer Gutierrez announced his presence, announced that he was

placing Mr. Cruz under arrest, and gave Mr. Cruz a number of opportunities to

come out of the house. In light of Mr. Cruz’s profane, belligerent, and hostile

response, Officer Gutierrez had a substantial interest in seizing Mr. Cruz in a

manner which would afford the officers the most safety.   See Terry v. Ohio , 392

U.S. 1, 23 (1968) (“It would be unreasonable to require that police officers take

unnecessary risks in the performance of their duties.”). We conclude that, under




                                          -9-
the circumstances, exigent circumstances existed which justified Mr. Cruz’s

warrantless arrest.

       Next, Mr. Cruz argues that the officers used excessive force during the

course of his arrest. In   Graham v. Connor , 490 U.S. 386, 396-97 (1989), the

Supreme Court held that claims of excessive force in the course of an arrest

should be analyzed under the Fourth Amendment reasonableness standard. In

order to meet his burden of proving excessive force, Mr. Cruz had to demonstrate

that Officer Gutierrez’s use of force was not “‘objectively reasonable’ in light of

the facts and circumstances confronting [him], without regard to [his] underlying

intent or motivation.”     Id. at 397. The Graham court set out three criteria relevant

to an excessive force inquiry: (1) the severity of the crime at issue; (2) whether

the suspect poses an immediate threat to the safety of the officers; and (3)

whether the suspect is actively resisting arrest or attempting to evade arrest by

flight. Id. at 396. As to reasonableness, we inquire from “the perspective of a

reasonable officer on the scene, rather than with the 20/20 vision of hindsight”

and we consider “the fact that police officers are often forced to make split-

second judgments--in circumstances that are tense, uncertain, and rapidly

evolving–about the amount of force that is necessary in a particular situation.”

Id. at 396-97; see also Dixon v. Richer , 922 F.2d 1456, 1462 (10th Cir. 1991).




                                            -10-
       Here, the parties involved had exhibited aggressive, belligerent behavior,

and had threatened the officer with physical assault and a threat of death. In our

opinion, this was a classic example of the kind of “tense, uncertain, and rapidly

evolving” situation, requiring the officer to make “split-second judgments,”

envisioned by the Graham Court. Graham , 490 U.S. at 397.

       In conclusion, we have read the portions of the trial transcript provided

and, considering the evidence in favor of Officer Gutierrez, we determine that

there was no legally sufficient evidentiary basis for Mr. Cruz’s claims.   5
                                                                               See

Brown , 227 F.3d at 1285. Therefore, a grant of judgment as a matter of law

would have been inappropriate, and the district court’s denial of Mr. Cruz’s

motion was correct.


                            III. Discussion - No. 99-2364

       In their appeal, pro se appellants Leroy and Evangelina Romero challenge

the jury’s verdict in favor of Officer Gutierrez alleging that (1) the jury was

biased against them based on race and national origin; (2) there was insufficient



5
       We note that Mr. Cruz did not provide this court with a complete trial
transcript. While the portions provided are adequate to facilitate our review, we
advise Mr. Cruz that when he challenges a jury verdict based on evidence
supporting a conclusion, it is imperative that this court be provided a full record.
See Fed. R. App. P. 10(b)(2); Deines v. Vermeer Mfg. Co. , 969 F.2d 977, 979
(10th Cir. 1992) (stating that lack of transcript limits appellate review of
insufficiency of evidence claim).

                                            -11-
evidence to support he jury’s verdict; and (3) Officer Gutierrez arrested Leroy

Romero without probable cause and there were no exigent circumstances

justifying the warrantless search and arrest.

       We are obligated to construe pro se pleadings liberally.        Haines v. Kerner ,

404 U.S. 519, 520-21 (1972). We will not, however, “construct arguments or

theories for the plaintiff in the absence of any discussion of those issues.”      Drake

v. City of Fort Collins , 927 F.2d 1156, 1159 (10th Cir. 1991). Moreover, “an

appellant’s pro se status does not excuse the obligation of any litigant to comply

with the fundamental requirements of the Federal Rules of Civil and Appellate

Procedure.” Ogden v. San Juan County , 32 F.3d 452, 455 (10th Cir. 1994).

       The Romeros’ allegations of jury bias lack factual or legal support. In light

of the evidence and testimony at trial, their allegation that bias is the only

explanation for the jury’s verdict is conclusory at best. Therefore, because

perfunctory complaints which fail to frame and develop an issue are insufficient

to invoke appellate review, we are not required to consider this argument.

Murrell v. Shalala , 43 F.3d 1388, 1389 n.2 (10th Cir. 1994);        see also Drake , 927

F.2d 1159 (holding that appellate court is not required to construct arguments for

pro se litigant).

       Also in a conclusory fashion, the Romeros challenge the sufficiency of the

evidence supporting the jury’s verdict. They do not, however, provide this court


                                             -12-
with a trial transcript. “Our appellate review is necessarily limited when, as here,

an appellant challenges the sufficiency of the evidence and rulings of the district

court but fails to ‘include in the record a transcript of all evidence relevant to

such finding or conclusion.’”    Deines , 969 F.2d at 979 ( quoting Fed. R. App. P.

10(b)(2)).   6



       We do, however, have the benefit of the portions of the trial transcript

provided by Mr. Cruz. Although incomplete, it is clear from the transcript of

testimony provided that there was sufficient evidence to support the jury’s

conclusion that Officer Gutierrez’s actions were justified.    See United States v.

Youngpeter , 986 F.2d 349, 352-53 (10th Cir. 1993) (holding that once a jury has

assessed the credibility of witnesses, appellate court may not second guess that

determination).

       Finally, the Romeros assert that there was no probable cause or exigent

circumstances justifying Officer Gutierrez’s warrantless search and arrest of

Leroy. The available trial testimony, however, amply supports the jury’s obvious

determination that Officer Gutierrez had probable cause to enter the Romeros’




6
        Although the Romeros state that they could not afford a transcript and the
district court did not grant their in forma pauperis application, see Appellants’
Opening Br. at 7, they do not challenge the district court’s actions in this regard
on appeal.

                                            -13-
property, and under the ensuing circumstances, had probable cause to arrest

Leroy. Therefore, this claim is without merit.


                                 III. Conclusion

      With the rule firmly in mind that this court does not retry the facts, we have

reviewed the parties’ arguments on appeal and the evidence in the record and

conclude that the jury’s verdict was based on sufficient evidence, and the court’s

denial of Mr. Cruz’s motion for judgment as a matter of law was proper.

Accordingly, the jury’s verdict in appeal No. 99-2364 in favor of Officer

Gutierrez and against Leroy and Evangelina Romero is AFFIRMED. We also

AFFIRM the district court’s order denying the motion for judgment as a matter of

law in appeal No. 99-2358.



                                                   Entered for the Court



                                                   Stephen H. Anderson
                                                   Circuit Judge




                                        -14-
