                    UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT


                          __________________

                              No. 92-3591
                          __________________



     MONICA STROIK,

                                         Plaintiff-Appellee,

                                versus

     WILBUR PONSETI and
     WARREN G. WOODFORK,

                                         Defendants,

     WILBUR PONSETI,

                                         Defendant-Appellant.

            ______________________________________________

      Appeal from the United States District Court for the
                  Eastern District of Louisiana
         ______________________________________________

                         (September 28, 1994)


Before GARWOOD and BARKSDALE, Circuit Judges and SHAW,* District
Judge.

GARWOOD, Circuit Judge:

     Defendant-appellant Wilbur Ponseti (Ponseti) appeals the trial

court's denial of his motion for judgment as a matter of law in

this suit under 42 U.S.C. § 1983 alleging Ponseti's excessive use

of force.    Because we find that Ponseti's use of deadly force was



*
     Chief Judge of the Western District of Louisiana, sitting by
designation.
objectively reasonable, we conclude that the trial court erred in

denying Ponseti's motion.     Accordingly, we reverse.

                     Facts and Proceedings Below

     On the evening of October 27, 1989, Ponseti, a police officer

with the New Orleans, Louisiana, Police Department, was on patrol

in a police car in the second district of the City of New Orleans

with his partner, Officer Kevin Balancier (Balancier).                 At or

around 10:30 p.m., the officers heard a police radio broadcast

concerning a series of armed robberies that had just occurred in

their patrol area.    The radio message indicated that four persons

were suspected of committing the robberies, that the suspects were

driving a blue van, and that two of the suspects were black and two

were white. The broadcast further indicated that the suspects were

armed.

     Upon hearing another radio message that the van had been

spotted on St. Charles Street, the officers attempted to intercept

the suspects.      When they arrived at St. Charles, Ponseti and

Balancier observed two police cars following a blue van at high

speed.   The officers joined in pursuit.          The chase continued for

several blocks until the van struck a pedestrian.           The driver then

turned   into   oncoming   traffic,       proceeded   up   the   street,   and

attempted a left turn, but instead lost control of the vehicle and

ran into a curb.

     As the van came to a stop, a black male opened the sliding,

passenger-side door and fled on foot.         Balancier parked the police

car in the middle of the intersection and, running past the open

sliding door of the van, chased the suspect down the street.               At

                                      2
the same time that Balancier ran past the van, Ponseti was running

toward the van.     As Ponseti came around the back of the van to its

passenger side, he observed a second black male and a white female

exiting the van through the sliding door.             The black male was

behind the white female with his left hand around her waist and was

holding a handgun in his right hand.        Ponseti immediately fired his

gun seven to nine times, killing the black male and wounding the

white female.1

     The decedent was later identified as Paul Johnson.                  The

injured female was Monica Stroik. She and her brother, Christopher

Stroik, had been carjacked by the two black males and then taken as

hostages by Johnson and the other man as they committed three armed

robberies of pedestrians.

     When    Ponseti    attempted   to     handcuff   Monica   Stroik,   she

responded that she was innocent and that she was wounded.           It was

only then that the officers learned that the Stroiks had been

carjacked and taken as hostages by the two men.

     On October 17, 1990, Monica Stroik filed suit pursuant to 42

U.S.C.   §   1983      against   Ponseti    and   Warren   Woodfork,     the

Superintendent of the New Orleans Police Department. In accordance

with 28 U.S.C. § 636(c), the parties consented to proceed before

the magistrate judge assigned to the case.            On May 4, 1992, the

case was tried before a six-person jury. Both Ponseti and Woodfork

moved for judgment as a matter of law; the court granted the motion

for Woodfork but denied Ponseti's motion.         On May 7, 1992, the jury



1
     The woman was struck once in the right side of her abdomen.

                                     3
returned a verdict against Ponseti, awarding Stroik $600,000 in

actual damages,    and   finding   that    Stroik   was   not   entitled    to

punitive damages against Ponseti.         On May 8, 1992, the magistrate

judge entered judgment on the verdict for Stroik and against

Ponseti.

     Ponseti then timely filed a motion for judgment as a matter of

law or, in the alternative, a new trial.            Ponseti's motion was

based on his assertion that his conduct was objectively reasonable

under the circumstances and, thus, as a matter of law, not an

excessive use of force.      The magistrate judge denied Ponseti's

motion.    Ponseti now brings this appeal.

                              Discussion

     In an appeal from the denial of a judgment as a matter of law,

our review of the district court proceedings is limited.2                  See

Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969) (en banc).

To reverse the denial of a judgment as a matter of law, "the facts

and inferences [must] point so strongly and overwhelmingly in favor

of one party that the Court believes that reasonable men could not

arrive at a contrary verdict."          Id.   We review the record as a

whole, not just the evidence favorable to the verdict, but in the

light and with all reasonable inferences most favorable to the

verdict.    Id.   A mere scintilla of evidence does not suffice to

create a fact issue, rather there must be a conflict in substantial

evidence.   Id. at 374-75.   It is for the jury to weigh conflicting


2
     Under the current Federal Rule of Civil Procedure 50, the
terms "directed verdict" and "judgment notwithstanding the
verdict" have been replaced by the single term "judgment as a
matter of law."

                                    4
reasonable inferences and determine the credibility of witnesses.

Id. at 375.         But a verdict may not rest on speculation and

conjecture.    Nichols Const. Corp v. Cessna Aircraft Co., 808 F.2d

340, 346 (5th Cir. 1985).           However, if reasonable persons could

disagree as to the verdict, a judgment as a matter of law is

inappropriate, and we must affirm.             Boeing Co. at 374.

      The issue in this appeal is whether the magistrate judge erred

in   concluding     that   there    was   a   jury    question    as   to   whether

Ponseti's shooting constituted excessive force.

      A deadly force complaint under section 1983 is a federal

constitutional claim, and is analyzed according to Fourth Amendment

standards.    See Reese v. Anderson, 926 F.2d 494, 500 (5th Cir.

1991).     "[A]ll claims that law enforcement officers have used

excessive    forceSQdeadly     or    notSQin    the    course     of   an   arrest,

investigatory stop, or other 'seizure' of a free citizen should be

analyzed    under    the   Fourth    Amendment       and   its   'reasonableness'

standard." Graham v. Connor, 109 S.Ct. 1865, 1871 (1989) (emphasis

in original). In applying Graham, this Court has used a three-part

test for section 1983 excessive force claims, requiring a plaintiff

to show "(1) a significant injury,3 which (2) resulted directly and

only from the use of force that was clearly excessive to the need;

and the excessiveness of which was (3) objectively unreasonable."



3
     But see Harper v. Harris County, 21 F.3d 597, 600 (5th Cir.
1994) (holding that the significant injury requirement of Johnson
v. Morel, 876 F.2d 477 (5th Cir. 1989), a case involving a Fourth
Amendment violation, is no longer valid in the wake of Hudson v.
McMillian, 112 S.Ct. 995 (1992), in which the Supreme Court held
that a showing of a significant injury was not required to prove
an Eighth Amendment violation).

                                          5
Reese, 926 F.2d at 500 (citing Johnson v. Morel, 876 F.2d 477, 480

(5th Cir. 1989) (en banc) (per curiam)).                    The burden of proof on

each of these elements is, of course, on the plaintiff.

      In the case sub judice, there is no dispute that Stroik

suffered a significant injury which resulted from Ponseti's use of

force.    Thus, the only question is whether Ponseti's use of force

was     "'objectively      reasonable'          in    light    of   the    facts    and

circumstances confronting [him], without regard to [his] underlying

intent or motivation."           Graham, 109 S.Ct. at 1872 (citing Scott v.

United States, 98 S.Ct. 1717, 1723-1724 (1978), and Terry v. Ohio,

88 S.Ct. 1868, 1879 (1968)).            In answering this question, we look

at the totality of the circumstances, paying particular attention

to "whether the suspect pose[d] an immediate threat to the safety

of the officers or others, and whether he [was] actively resisting

arrest."    Id. (citing Tennessee v. Garner, 105 S.Ct. 1694, 1699-

1700 (1985)).

      When a suspect is fleeing and an officer has "probable cause

to believe that the suspect poses a threat of serious physical

harm,     either    to     the     officer       or    to     others,     it   is   not

constitutionally unreasonable to prevent escape by using deadly

force."     Garner, 105 S.Ct. at 1701.                  Indeed, "if the suspect

threatens the officer with a weapon . . . deadly force may be used

if necessary to prevent escape, and if, where feasible, some

warning has been given."               Id.       Moreover, "[t]he calculus of

reasonableness must embody allowance for the fact that police

officers    are    often    forced     to    make     split-second      judgmentsSQin

circumstances       that         are   tense,         uncertain,        and    rapidly

                                            6
evolvingSQabout   the   amount    of    force      that    is    necessary    in   a

particular situation."      Graham, 109 S.Ct. at 1872.

     Although "'[t]he test of reasonableness under the Fourth

Amendment is not capable of precise definition or mechanical

application,'" id. at 1871 (quoting Bell v. Wolfish, 99 S.Ct. 1861,

1884 (1979)), our application of the Graham standard to the facts

in Reese v. Anderson, 926 F.2d 494 (5th Cir. 1991), is instructive

as to its parameters in this Circuit.               In Reese, we held that a

police officer was entitled to summary judgment in a section 1983

action where   the    officer    shot       and   killed   a    robbery   suspect.

Responding to a radio call for the robbery of a convenience store,

the police officer in Reese spotted the suspects' car and began to

give chase.    During the chase, which reached speeds of forty to

sixty miles per hour, the suspects threw out of the car window what

appeared to be parts of a cash register.                       The suspects' car

eventually spun out of control and the police car pulled up along

the passenger's side.       Kneeling behind his open car door, the

police officer instructed the suspects to raise their hands. After

initially complying, the suspect in the front passenger seat

reached down below the seat with his left hand.                 The officer again

commanded the suspects to raise their hands and again the suspect

in the passenger seat raised and then lowered his hand.                After this

happened several times, the officer, fearing for his safety, shot

the suspect once in the head, killing him.            The officer later found

that the suspect was, in fact, unarmed.              Id. at 500.

     In   analyzing   the   district        court's   denial      of   the   police

officer's motion for summary judgment in Reese, we concluded that

                                        7
"[u]nder these circumstances, a reasonable officer could well fear

for his safety and that of others nearby.           He could reasonably

believe that [the suspect] had retrieved a gun and was about to

shoot."    Id. at 501.   For this reason, we held that the "officer

[was] justified in using deadly force to defend himself and others

around him," id., and that the officer was entitled to summary

judgment as a matter of law.

     In Smith v. Freeland, 954 F.2d 343, 347 (6th Cir. 1992), the

Sixth   Circuit    followed   our   decision   in   Reese   in   analogous

circumstances, also aptly pointing out:

     ". . . we must avoid substituting our personal notions of
     proper police procedure for the instantaneous decision of
     the officer at the scene.      We must never allow the
     theoretical, sanitized world of our imagination to
     replace the dangerous and complex world that policemen
     face every day. What constitutes "reasonable" action may
     seem quite different to someone facing a possible
     assailant than to someone analyzing the question at
     leisure."4

     In the case sub judice, the essential facts are not in

dispute.    When Ponseti and Balancier arrived at the scene of the

shooting, all of the information they possessed indicated that

there were both black and white suspects in the van, that they were


4
     Smith also observes:

     "Furthermore, the fact that Officer Schulcz's actions
     may have violated Springdale's policies regarding
     police use of force does not require a different
     result. Under § 1983, the issue is whether Officer
     Schulcz violated the Constitution, not whether he
     should be disciplined by the local police force. A
     city can certainly choose to hold its officers to a
     higher standard than that required by the Constitution
     without being subjected to increased liability under §
     1983." Id.

Again, we agree.

                                     8
armed, and that they had all been involved in the robberies of

pedestrians.     The van had just come to an abrupt stop after a high

speed chase during which the van had struck a pedestrian.        One

suspect had begun to flee on foot and two others were exiting the

van.   Finally, the crucial fact in this case is that at the time

Ponseti came around the rear of the van, he testified, and there is

no evidence contradicting this testimony, that Johnson was pointing

a gun at him.5    Hence, unlike the officer in Reese, Ponseti's life

was actually in jeopardy when he shot.    Given these facts, Ponseti

had "probable cause to believe that the suspect[s] pose[d] a threat

of serious physical harm," Garner, 105 S.Ct. at 1701, to Ponseti,

or to others if the suspects were allowed to flee.           Because

Ponseti could have reasonably believed that the suspects posed an

imminent, deadly threat, we conclude that he was justified in using

deadly force.6


5
     The parties dispute whether Stroik and Johnson were standing
or were on the ground as Ponseti rounded the back of the van;
however, all direct evidence indicates that, whether standing or
on the ground, Johnson was pointing his gun at Ponseti. There is
no evidence from which a jury could conclude otherwise.
6
     Stroik contends that several factors militate against a
finding that Ponseti's use of force was not excessive.
Ultimately, Stroik's argument boils down to an assertion that the
evidence supported a jury finding that "Ponseti was not in full
control of his anger and that he impulsively abandoned his police
training and shot the robbers, believing that Monica Stroik was
also a robber." Appellee's Brief at 10. In support of her
argument, she notes that Christopher Stroik testified that
Ponseti seemed "enraged" after the shooting and that a pre-
employment psychological profile indicated that Ponseti had "poor
impulse control." Regardless of the merits of these claims,
Stroik's argument fails because its focus is on Ponseti's
subjective state of mind. In so doing, Stroik disregards the
Court's instruction in Graham that we determine objectively the
reasonableness of a police officer's use of force, "without
regard to their underlying intent or motivation." Graham, 109

                                   9
                               Conclusion

     We therefore conclude that the magistrate judge erred in

denying   Ponseti's   motion   for   judgment   as   a   matter    of   law.

Accordingly, the judgment below is

                                                                  REVERSED.




S.Ct. at 1872.

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