                                                             F I L E D
                                                       United States Court of Appeals
                                                               Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                           February 16, 2007
                          FO R TH E TENTH CIRCUIT         Elisabeth A. Shumaker
                                                              Clerk of Court

LULA LOUNDS; GEORGIA
FU STON-LOUNDS, as the personal
representatives of the estate of A lford
T. Lounds,

             Plaintiffs-Appellants,

v.                                                No. 06-6139
                                           (D.C. No. 03-CIV-1519-T)
FRANK TORRES, individually and in                (W .D. Okla.)
his official capacity; C ITY O F
OKLAHOM A CITY, a municipal
corporation,

             Defendants-Appellees,

      and

DARREN M ARTIN, individually and
in his official capacity,

          Defendant.
____________________________

LULA LOUNDS; GEORGIA
FU STON-LOUNDS, as the personal
representatives of the estate of A lford
T. Lounds,

             Plaintiffs-Appellants,

v.                                                No. 06-6202
                                           (D.C. No. 03-CIV-1519-T)
FR AN K TO RR ES; C ITY O F                       (W .D. Okla.
OKLAHOM A CITY, a municipal
corporation,
              Defendants-Appellees.



                           OR D ER AND JUDGM ENT *


Before PO RFILIO, B AL DOC K , and EBEL, Circuit Judges.


      This civil rights action stems from the fatal shooting of Alford T. Lounds

(A lford) by Oklahoma City police officer Frank Torres. 1 Alford’s estate is

represented by his common-law wife, Georgia Fuston-Lounds

(M s. Fuston-Lounds), and his mother, Lula Lounds (collectively, appellants).

Appellants initiated this suit under 42 U.S.C. § 1983, alleging that Oklahoma City

(the City) failed to properly train Officer Torres, and that Officer Torres used

excessive force in attempting to detain Alford. The district court granted

summary judgment in favor of the City, and a jury returned a verdict for Officer

Torres. On appeal, appellants challenge both the summary judgment order and

the jury verdict. They claim that summary judgment was improper because a

question of fact existed concerning the adequacy of the City’s training policies.

They contest the jury verdict by arguing that they were prejudiced by the


*
       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). These cases
are therefore ordered submitted without oral argument. This order and judgment
is not binding precedent, except under the doctrines of law of the case, res
judicata, and collateral estoppel. It may be cited, however, for its persuasive
value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
      To avoid confusion, we refer to M r. Lounds by his first name.

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admission of evidence indicating a turbulent relationship between

M s. Fuston-Lounds and Alford. W e have jurisdiction under 28 U.S.C. § 1291,

and we affirm.

                                  I. Background

      Shortly after midnight on M ay 15, 2003, Officer Torres w as w ith his

partner, Darren M artin, driving in an unmarked Ford Ranger in the vicinity of

N.W . Tenth Street and M iller Boulevard in Oklahoma City. The officers had been

conducting surveillance nearby and were dressed in plain clothes. As the officers

pulled up to a stop sign, they heard a woman – later identified as

M s. Fuston-Lounds – scream. M s. Fuston-Lounds was sitting in the street with

the contents of her purse emptied onto the ground and Alford standing above her.

Believing that M s. Fuston-Lounds had been assaulted, Officer Torres left his

truck with his gun drawn. Displaying his badge in his left hand, Torres identified

himself as a police officer. According to Officer Torres, Alford began walking

toward a van parked nearby, paused when ordered to stop by Officer Torres, but

continued to enter the van. Torres followed, and with gun in hand, opened the

van door. Standing in the doorway, he again ordered Alford to stop, but Alford

did not heed him and continued to back the van. The opened door struck Officer

Torres in the back, causing him to fall to the ground. W hile falling, and believing

he was in peril of being run over, O fficer Torres fired three shots into the van.

One bullet struck Alford, fatally wounding him.




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      Appellants filed this suit against the City and both officers, although they

later dismissed Officer M artin from the litigation. Appellants claimed that the

City’s use-of-force policy was inadequate and its training deficient, particularly in

the use of deadly force when a subject attempts to flee from police while driving

a vehicle. Upon the City’s motion for summary judgment, however, the district

court ruled that the C ity’s use-of-force policy was deemed adequate by this court

in Carr v. Castle, 337 F.3d 1221, 1228 (10th Cir. 2003), and absent any evidence

creating a question of fact on the adequacy of the training on that policy,

summary judgment in favor of the City was proper.

      In support of their excessive force claim against O fficer Torres, appellants

moved in-limine to exclude evidence of Alford’s criminal history as irrelevant

and prejudicial. Officer Torres agreed to this motion in part, but argued that

because appellants were seeking damages for M s. Fuston-Lounds’ grief and loss

of companionship, evidence of Alford’s 2002 conviction and 2003 arrest for

domestic abuse of M s. Fuston-Lounds ought to be admissible to demonstrate the

true nature and quality of their relationship. The district court agreed and ruled

the evidence admissible. Appellants now seek review of this evidentiary ruling,

as well as the district court’s grant of summary judgment to the City.

                                   II. Discussion

A. Summary Judgment Ruling

      “W e review a district court’s grant of summary judgment de novo, using

the same standards applied by the district court.” Baca v. Sklar, 398 F.3d 1210,

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1216 (10th Cir. 2005). W e view the evidence and reasonable inferences

therefrom in the light most favorable to the nonmoving party, id., and will affirm

a grant of summary judgment only where “the pleadings, depositions, answ ers to

interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is

entitled to judgment as a matter of law ,” Fed. R. Civ. P. 56(c).

      Appellants contend “[t]he factual issue here is not the categorical existence

of policies and training in the use of force by [the City], but rather, the adequacy

and completeness of those policies and that training.” Aplt. Br. 21. The district

court recognized, however, that in Carr, 337 F.3d at 1228, this court deemed the

City’s use-of-force policy constitutionally adequate. Aplt. App. at 1399. Indeed,

the court expressly noted that appellants offered no evidence of “any

constitutional deficiency in the policies regarding the use of force,” nor any

evidence challenging this court’s finding in Carr that the same w ritten policy was

constitutional. Id. Further, the district court carefully considered appellants’

claim that the City’s officers were deficiently trained in the use of deadly force

when “subjects attempt to drive away from encounters with officers.” Id. at 1400.

But because uncontroverted evidence demonstrated that the City’s “use of force

policy includes a section specifically dealing with shooting at or from a motor

vehicle,” and that its “officers receive training on this policy and on vehicular

extractions,” the court found that appellants failed to establish “evidence

sufficient to create a question of fact regarding the adequacy of the training

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program.” Id. at 1400-01. For these reasons alone, summary judgment was

proper. Appellants’ arguments to the contrary merely attack the district court’s

additional, albeit unnecessary, reasons for granting summary judgment, and in

any event, are without merit. Therefore, having thoroughly reviewed the parties’

briefs, the record on appeal, the district court’s order, and the relevant law, we

agree that summary judgment in favor of the City was correct. W e thus affirm the

district court’s summary judgment ruling for the reasons stated in that court’s

August 11, 2005, order.

B. Evidentiary R uling

      W e next consider whether the district court erred in admitting evidence of

Alford’s history of domestic violence against M s. Fuston-Lounds. Appellants

contend the admission of this evidence violated Fed. R. Evid. 404(b), which

provides that “[e]vidence of other crimes, wrongs, or acts is not admissible to

prove the character of a person in order to show action in conformity therewith.”

They argue that the evidence ought to have been excluded because A lford’s

conviction and arrest for domestic abuse is irrelevant and prejudicial.

      W e review a trial court’s evidentiary rulings for an abuse of discretion.

M acsenti v. Becker, 237 F.3d 1223, 1236 (10th Cir. 2001). W hile it is true that

evidence of other crimes or wrongs unrelated to the conduct at issue is

inadmissible to prove a propensity to behave in a given manner, if offered for

another purpose, such evidence may be admissible under Rule 404(b). Tanberg v.

Sholtis, 401 F.3d 1151, 1167 (10th Cir. 2005). To be admissible, the evidence

                                          -6-
must be offered for a proper purpose; it must be relevant; the trial court must

determine under Fed. R. Evid. 403 that the probative value of the evidence is not

substantially outweighed by its potential for unfair prejudice; and the trial court

must give the jury a proper limiting instruction when requested. United States v.

Lazcano-Villalobos, 175 F.3d 838, 845-46 (10th Cir. 1999).

      Here, all four requirements were satisfied. First, evidence of Alford’s 2002

conviction and 2003 arrest for domestic abuse of M s. Fuston-Lounds was offered

not to show his character, but for the proper purpose of rebutting

M s. Fuston-Lounds’ claim for damages. See Tanberg, 401 F.3d at 1166 (“W hen a

party opens the door to a topic, the admission of rebuttal evidence on that topic

becomes permissible.”). Second, the evidence was relevant because

M s. Fuston-Lounds put the nature and quality of her relationship with Alford at

issue by claiming damages for grief and loss of companionship. See, e.g., Perrin

v. Anderson, 784 F.2d 1040, 1048 (10th Cir. 1986) (holding that evidence of

pornographic images found throughout decedent’s home and accessible to his

minor child was relevant to the question of child’s damages for loss of

companionship). In this regard, the fact that the abuse occurred before or during

their common-law marriage is of no consequence because her claim was premised

not on the loss of her marriage, but on the loss of her relationship. Third, the

district court balanced the evidence as required by Rule 403, and concluded that

its probative value clearly outweighed its prejudicial impact. Aplt. A pp. at 1422.

To the extent appellants dispute this conclusion, we note that Rule 403 requires

                                          -7-
that even if prejudice is found, “it must substantially outweigh the probative

value of the evidence in order to be excluded.” United States v. Tan, 254 F.3d

1204, 1212 (10th Cir. 2001). Here, the district court did not find, and appellants

do not contend, that there was substantial prejudice. Finally, the district court

specifically instructed the jury that the evidence was to be used “for damages

based on grief and the loss of companionship resulting from the death of A lford

Lounds.” Aplee. Suppl. App. at 263. W e presume the jury followed this

instruction. Darks v. M ullin, 327 F.3d 1001, 1015 (10th Cir. 2003). Accordingly,

we find the district court acted within its discretion in admitting the evidence.

                                  III. Conclusion

      The judgment of the district court is AFFIRMED.

                                                     Entered for the Court



                                                     John C. Porfilio
                                                     Circuit Judge




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