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

                                                                               FILED
                                         ____________                         May 27, 2008

                                         No. 07-30405                    Charles R. Fulbruge III
                                         ____________                            Clerk

HEATHER LEHMAN; BILLIE J. LEHMAN, individually and on behalf of
William Matthew Lehman; COLLEEN PECK, individually and on behalf of
William Matthew Lehman

                                              Plaintiffs-Appellants
v.

CHERYL M. LEICHLITER, individually and in her capacity as an officer with
the Lake Charles City Police Department; CITY OF LAKE CHARLES

                                           Defendants-Appellees
                                  _______________________

                      Appeal from the United States District Court
                         for the Western District of Louisiana
                                USDC No. 2:03-CV-1432
                                _______________________

Before DAVIS and SOUTHWICK, Circuit Judges, and CLARK, District
Judge*

PER CURIAM:**

           Officer Cheryl Leichliter responded to a 911 call from an apartment
complex that William Matthew Lehman was being physically abusive to a


       *
           District Judge of the Eastern District of Texas, sitting by designation.
       **
         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not be published and is not precedent except under the limited circumstances set forth in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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                                        No. 07-30405

woman, vandalizing property, and threatening another resident. There had also
been a report of shots fired. Leichliter subsequently shot and killed Matthew
Lehman.1 After declaring a mistrial on Plaintiffs-Appellants’ 42 U.S.C. § 1983
and state tort claims, the district court granted Leichliter’s renewed motion for
judgment as a matter of law (“JMOL”). On review of all the evidence, drawing
all reasonable inferences in favor of Plaintiffs-Appellants, the court holds that
Plaintiffs-Appellants have shown neither that Leichliter’s use of force was
objectively unreasonable under federal law nor unreasonable under state law.
We affirm.
                       I. Facts and Procedural Background
       On June 24, 2002, Heather Lehman placed a call to 911 after her brother,
Matthew Lehman, became physically abusive. Before the police arrived at
Heather’s apartment complex, Matthew vandalized adjacent apartments and
threatened another resident. Heather testified that Matthew was under the
influence of alcohol and anti-depressants at the time.
       Officer Cheryl Leichliter was the first officer to respond. While trying to
locate the Lehman residence, Leichliter received a radio dispatch that there had
been shots fired at the apartment complex. Heather’s boyfriend, Benjamin
Ladner, told Leichliter that Matthew was drunk and unarmed, but that she
would need pepper spray to control him.
       Leichliter testified at trial that Matthew ran straight at her.                     Both
Heather and Ben testified that Matthew was ten to fifteen feet away when
Leichliter first discharged her weapon. Leichliter fired three shots in all,
striking Matthew twice and killing him.
       Plaintiffs-Appellants (collectively “Lehman”) filed suit against Leichliter
pursuant to 42 U.S.C. § 1983 and Louisiana state law, alleging excessive force
in violation of Matthew’s constitutional rights, as well as negligence, assault,

       1
        The district court’s opinion, as well as the parties’ briefs, consistently refers to
William Matthew Lehman as “Matthew” rather than “William.”

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                                  No. 07-30405

and battery claims. Lehman also brought suit against Leichliter’s employer, the
City of Lake Charles, under a theory of respondeat superior for negligent hiring,
training, and supervision of Leichliter. Before trial commenced, the district
court denied Leichliter’s motion for summary judgment on the basis of qualified
immunity. The decision was appealed to this court, and the appeal dismissed for
lack of jurisdiction.
      At the close of Lehman’s case at trial, Leichliter and the City moved for
JMOL pursuant to Federal Rule of Civil Procedure 50(a). This motion was
granted with respect to the City and denied with respect to Leichliter. A second
motion for JMOL was made by Leichliter at the close of all evidence, which was
also denied by the court. The court declared a mistrial on September 13, 2006,
after the jury was unable to reach a unanimous verdict.
      Leichliter renewed her motion for JMOL on September 26. The motion
was granted by the district court and all claims against Leichliter were
dismissed.
                           II. Standard of Review
      This Court reviews a grant of JMOL de novo, Evans v. Ford Motor Co., 484
F.3d 329, 334 (5th Cir. 2007), applying the same standard as the court below and
affirming if “the facts and inferences point so strongly and overwhelmingly in
favor of the moving party [that] no reasonable jurors could have arrived at a
contrary verdict.” Conner v. Travis Cty., 209 F.3d 794, 796 (5th Cir.
2000)(internal citation omitted). In so doing, the Court must “review all of the
evidence in the record, drawing all reasonable inferences in favor of the
nonmoving party[. T]he court may not make credibility determinations or weigh
the evidence, as those are jury functions.” Brennans, Inc. v. Dickie Brennan &
Co., Inc., 376 F.3d 356, 362 (5th Cir. 2004). “Judgment as a matter of law is
appropriate with respect to an issue if there is no legally sufficient evidentiary
basis for a reasonable jury to find for a party on that issue.” Id.



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      In reviewing the record as a whole, the Court “must disregard all evidence
favorable to the moving party that the jury is not required to believe.” Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S. Ct. 2097, 2110
(2000); see also Evans, 484 F.3d at 334. The Court “should give credence to the
evidence favoring the nonmovant as well as that evidence supporting the moving
party that is uncontradicted and unimpeached, at least to the extent that that
evidence comes from disinterested witnesses.” Reeves, 530 U.S. at 151, 120 S.
Ct. at 2110.
                                 III. Analysis
A.    Timeliness of Renewed Motion for JMOL
      Lehman’s first argument is that Leichliter’s renewed motion for JMOL
was untimely because it occurred more than ten days after the entry of
judgment. Federal Rule of Civil Procedure 50(b) states that a movant may
renew his or her request for JMOL by filing a motion no later than ten days after
the entry of judgment or, if the motion addresses a jury issue not decided by a
verdict, no later than ten days after the jury is discharged. Because a mistrial
was declared in this case, the latter provision applies. Federal Rule of Civil
Procedure 6(a) states that when the period of time allowed is less than eleven
days, intermediate Saturdays, Sundays, and legal holidays shall be excluded
from the computation. Additionally, the day of the act, event, or default from
which the period begins to run is not included.
      The jury in this case was discharged on September 13, 2006, which was
a Wednesday. As the period permitted by Rule 50(b) is less than eleven days,
intervening Saturdays and Sundays will be excluded from the calculation of the
applicable period. As per Rule 6(a), the time period begins the following day,
Thursday, September 14. Excluding September 16-17 and 23-24, because these
are Saturdays and Sundays, the response period expired on Wednesday,
September 27. Since Leichliter renewed her motion on September 26, the
renewed motion for JMOL was timely.

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                                  No. 07-30405

B.    District Court’s Grant of JMOL on Section 1983 Claims Based on
      Qualified Immunity
      Lehman’s second argument is that the district court erred in granting
Leichliter’s renewed motion for JMOL on the Section 1983 claims on the grounds
that Leichliter was entitled to qualified immunity.
      Evaluating qualified immunity is a two-step process. Brown v. Miller, 519
F.3d 231, 236 (5th Cir. 2008). First, the Court must determine whether “the
facts alleged show the officer’s conduct violated a constitutional right[.]” Scott
v. Harris, – U.S. –, 127 S. Ct. 1769, 1774 (2007). Second, if a constitutional right
is found to have been violated, then the Court must determine “whether the
right was clearly established – in light of the specific context of the case.” Id.
In order to be clearly established, “the contours of the right must be sufficiently
clear that a reasonable official would understand that what he is doing violates
that right.” Brown, 519 F.3d at 236. “The plaintiff bears the burden of proving
that a government official is not entitled to qualified immunity.” Michalik v.
Hermann, 422 F.3d 252, 258 (5th Cir. 2005).
      Under the first prong of the qualified immunity analysis, Lehman must
demonstrate “(1) an injury that (2) resulted directly and only from the use of
force that was excessive to the need, and (3) the use of force that was objectively
unreasonable.” Bush v. Strain, 513 F.3d 492, 500 (5th Cir. 2008). If Officer
Leichliter was reasonable in her use of force, no constitutional violation occurred
and the second prong of the analysis need not be considered. See Scott, 127 S.
Ct. at 1774. Only if we find that her use of force was excessive – that is, that it
violated Matthew Lehman’s Fourth Amendment right to be free from an
unreasonable seizure – will we consider the second prong of the qualified
immunity analysis.
      Deadly force by a police officer has been considered objectively reasonable
under similar facts. In Reese v. Anderson, 926 F.2d 494 (5th Cir. 1991), the
occupants of a car were ordered to raise their hands repeatedly and the

                                         5
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passenger raised and lowered his hands a number of times (allegedly indicating
to the officers that he had a gun). The officer’s use of deadly force on the
passenger was reasonable under the circumstances, and this Court reversed the
district court’s denial of summary judgment based on qualified immunity.
Similarly, in Mace v. City of Palestine, 333 F.3d 621 (5th Cir. 2003), this Court
affirmed the district court’s grant of qualified immunity for an officer who shot
and killed a man who was “intoxicated, agitated, breaking windows, shouting,
and brandishing an eighteen to twenty inch sword.” Id. at 624. The man also
“did not respond to commands to drop the sword or to stop moving toward the
officers.” Id. The court noted that “[u]se of deadly force is not unreasonable
when an officer would have reason to believe that the suspect poses a threat of
serious harm to the officer or others.” Id.
      Here, Heather Lehman called 911 because Matthew Lehman, while under
the influence of drugs and alcohol, had assaulted her, caused property damage,
and was behaving erratically. Officer Leichliter had been informed by dispatch
that shots had been fired in connection with the disturbance. At the scene, Ben
Ladner told Leichliter that she would need pepper spray to subdue Matthew. In
such circumstances, a reasonable officer is not required to stake her life on
Ladner’s statement that Matthew Lehman was not armed.
      Standing more than six feet tall and weighing over 200 pounds, Matthew
was substantially larger than Leichliter.     Heather and Ben testified that
Leichliter was between ten and fifteen feet away from Matthew when she began
firing, and both agreed that Matthew was advancing toward Leichliter when she
shot him. While the distance from a threat is a factor a reasonable officer must
consider, qualified immunity should not depend on whether an assailant is three
strides away from the officer rather than two.
      There was testimony at trial from Dr. Terry Welke, an expert in forensic
pathology, that one of the bullets hit Matthew in the back of his left shoulder,
entering at a sharp downward angle. Welke testified that the shot was fired

                                        6
                                   No. 07-30405

from a height above Matthew’s left shoulder, and that this would have been
consistent with Matthew being in a crouching position. Ben Ladner testified
that Matthew was close to the ground when Leichliter shot him, and that he
appeared to be turning when he was shot. However, there was no evidence
presented that Matthew had turned his back to Leichliter before she began
firing. Heather, Ben, and Leichliter all agreed that the entire confrontation
lasted only a matter of seconds.
      The mere fact that Matthew may have changed his direction, changed his
course, or simply changed his mind about advancing on Leichliter as she fired
does not deprive the officer of qualified immunity. Welke testified that the angle
of this particular bullet was consistent with Matthew being in a crouching,
lunging, or attacking position. Even crediting Ben’s testimony that Matthew
appeared to be beginning to turn when Leichliter shot him, it was not objectively
unreasonable for Leichliter, faced with a split-second decision under stressful
circumstances, to fire at someone who was advancing toward her. At best, the
evidence indicates that at the moment she fired, Matthew began to dodge or
turn. It was his decision to do so, but it is not reasonable to expect an officer
under these circumstances to foresee that this large, violent, and erratically
behaving individual would turn aside, or abandon his attack. This is not a case
of an officer shooting a fleeing suspect.
      Although Leichliter had a baton and pepper spray, officers under
immediate attack are not required by the Constitution to employ defensive
tactics and weapons in some pre-determined order on a “use of force” continuum.
See Graham v. Connor, 490 U.S. 386, 396-97, 109 S. Ct. 1865, 1872 (1989)(“The
calculus of reasonableness must embody allowance for 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.”); Illinois v. Lafayette, 462 U.S. 640, 647, 103
S. Ct. 2605, 2610 (1983)(“the reasonableness of any particular government

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                                       No. 07-30405

activity does not necessarily or invariably turn on the existence of alternative
‘less intrusive’ means.’”); Mace, 333 F.3d at 625 (“Although, in retrospect, there
may have been alternative courses of action for [the officer] to take, we will not
use the 20-20 vision of hindsight to judge the reasonableness of [the officer’s] use
of force.”) (internal quotation omitted).2 The Lake Charles Police Department
authorizes the use of deadly force where “[a]n officer reasonably believes that
such force is necessary to protect himself or others from a significant and
immediate threat of death or serious physical injury.”
       To summarize, it is undisputed that Matthew Lehman, an individual
substantially larger than Leichliter, was intoxicated, abusive and threatening
others, engaging in property damage, behaving erratically, and was advancing
on Leichliter from only ten to fifteen feet away. Lecihliter had also been told
that shots were fired at the apartment complex by dispatch. Under these facts,
the Court will affirm the district court’s grant of JMOL on the basis of qualified
immunity.
C.     District Court’s Grant of JMOL on State Law Claims
       Lehman’s final argument is that the grant of JMOL on the state law
battery, assault, and negligence tort claims was improper.
       Battery is defined under Louisiana law as “[a] harmful or offensive contact
with a person, resulting from an act intended to cause the plaintiff to suffer such
a contact ...” Johnson v. Bergeron, 07-161(La.App. 5 Cir. 8/28/07); 966 So.2d
1059, 1060 (quoting Caudle v. Betts, 512 So.2d 389, 391 (La. 1987)). “Assault is,
speaking generally, threat of a battery.” Fournette v. Tran, 2000-0805 (La.App.




       2
         Lehman’s expert on police procedure, Mel Tucker, testified at trial that Leichliter’s
actions were not in keeping with police training because she did not use her baton or
pepper spray before discharging her gun. However, determination of qualified immunity of
an officer facing a larger opponent in the arena of sudden violence cannot be based merely
upon the leisurely assessment of one ensconced in the comfortable witness chair of a
protected courtroom.

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                                       No. 07-30405

4 Cir. 7/11/01);792 So.2d 870, 873. The determination of liability in a negligence
case uses the so-called “duty-risk analysis.”3
       The risk in this case was obvious. A large young man, who had assaulted
his sister, was threatening Leichliter with imminent physical violence. At best,
Leichliter would suffer a beating; at worst, she could sustain crippling injuries
or even death. The “duty” was Leichliter’s duty to act reasonably and to use only
as much force as was necessary under the circumstances.
       Under all three state claims, battery, assault, and negligence, the analysis
of the use of force is the same: “[t]he use of force when necessary to make an
arrest is a legitimate police function.” Kyle v. City of New Orleans, 353 So.2d
969, 972 (La. 1977). Only officers who use unreasonable or excessive force will
be liable for the injuries which may result. Id. at 973. The court should evaluate
the actions of the officer from the perspective of an “ordinary, prudent, and
reasonable person[] placed in the same position as the officer[], with the same
knowledge as that possessed by the officer[] at the time of the incident.”
Mathieu v. Imperial Toy Corp., 94-0952 (La. 11/30/94); 646 So.2d 318, 322 (citing
Kyle, 353 So.2d at 973). “The scope of the officers' duty to act reasonably under
the circumstances does not operate to restrict the officers to employing only the
best of several available alternatives, or the least intrusive.” Stroik v. Ponseti,
96-2897, p. 20 (La. 9/9/97); 699 So.2d 1072, 1079.
       Louisiana courts consider seven factors in determining whether use of
force is reasonable: (1) the known character of the arrestee; (2) the risks and


       3
        This analysis has five elements:
              (1) proof that the defendant had a duty to conform his conduct to a specific
              standard (the duty element); (2) proof that the defendant's conduct failed to
              conform to the appropriate standard (the breach element); (3) proof that the
              defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries
              (the cause-in-fact element); (4) proof that the defendant's substandard
              conduct was a legal cause of the plaintiff's injuries (the scope of liability or
              scope of protection element); and (5) proof of actual damages (the damages
              element).
Boykin v. Louisiana Transit Co., Inc., 96-1932, p.8 (La. 3/4/98); 707 So.2d 1225, 1230.

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                                  No. 07-30405

dangers faced by the officers; (3) the nature of the offense involved; (4) the
chance of the arrestee’s escape if the particular means are not employed; (5) the
existence of alternate methods of arrest; (6) the physical size, strength, and
weapons of the officers as compared to the arrestee; and (7) the exigency of the
moment. Kyle, 353 So.2d at 973.
      For the same reasons discussed with respect to qualified immunity in Part
III(B), Leichliter is also entitled to judgment from the state law claims. Even
drawing all reasonable inferences in their favor, Plaintiffs-Appellants have not
presented sufficient evidence for reasonable jurors, applying the Kyle factors, to
conclude that Officer Leichliter’s use of force was unreasonable. The district
court’s grant of judgment as a matter of law is affirmed.
      AFFIRMED.




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