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

                                                                            FILED
                                                                           March 7, 2008

                                       No. 06-41539                   Charles R. Fulbruge III
                                                                              Clerk

SHARON E NAILL, and other similarly situated females; JOHN EDWARD
JONES

                                                  Plaintiffs - Appellants
v.

CESAR BENAVIDES; RODRIGO RUIZ; MAYOR BETTY FLORES,
Individually and in her Official Capacity as Mayor for the City of Laredo; III
AGUSTIN DOVALINA, Individually and in his Official Capacity as Chief for
the Laredo Police Department; GILBERT NAVARRO, Individually and in his
Official Capacity as Assistant Deputy Chief for the Laredo Police
Department; THE CITY OF LAREDO

                                                  Defendants - Appellees



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:04-CV-00013


Before REAVLEY, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
       Plaintiffs Sharon Naill and John Jones appeal the jury verdict rendered
in favor of defendants Officer Cesar Benavides and Officer Rodrigo Ruiz.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                 No. 06-41539

Plaintiffs also appeal the district court’s dismissal of their claims against the
City of Laredo. For the reasons that follow, we AFFIRM.
      1.    The plaintiffs argue that the jury’s verdict was against the great
            weight of the evidence, entitling them to a new trial. Deloach v.
            Delchamps, Inc., 897 F.2d 815, 820 (5th Cir. 1990).
                  Plaintiffs claim that the jury erred by finding that they were
            not seized when the officers pulled up in their cars in response to
            the plaintiffs’ phone call for help. Individuals are “seized” within
            the meaning of the Fourth Amendment “only if, in view of all the
            circumstances surrounding the incident, a reasonable person would
            have believed that he [or she] was not free to leave.” Michigan v.
            Chesternut, 486 U.S. 567, 573, 108 S. Ct. 1975, 1979 (1988) (internal
            citations and quotation marks omitted). Plaintiffs testified that
            they did not feel free to leave when the police officers pulled up.
            Ruiz also wrote in his police report that he had parked his car next
            to the plaintiffs’ car in such a way as to reduce the risk of flight.
            But both officers also testified that the plaintiffs were free to leave
            and that the plaintiffs could have by simply backing up. Moreover,
            when the officers arrived, they were there at the plaintiffs’ request.
            Given all of this, the jury could properly conclude that the plaintiffs
            were not seized when the officers showed up.
                  Naills also complains that Ruiz had no reasonable suspicion
            that she had committed a crime and thus had no basis to ask her
            whether she had a gun when he approached her car. But Ruiz did
            testify that when he approached Naills in her car—an action he took
            because Naills had called and asked the police to come to
            help—Naills appeared very nervous. Because of Naills’s nervous
            appearance, he reasonably asked, for his own safety, if she had a

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                          No. 06-41539

     gun. Naills does not explain why a police officer is not entitled to
     ask a citizen if she is armed after the citizen requests his assistance
     and appears very nervous. Naills also complains that Ruiz did not
     have probable cause to search the car. But Naills (who does not
     have a concealed hand gun license) admitted to Ruiz that she had
     a concealed hand gun, at which point Ruiz had probable cause to
     believe that she had committed a crime—i.e., unlawful possession
     of a hand gun.
           Jones also complains that the jury’s finding that Benavides
     justifiably detained him was against the great weight of the
     evidence. Benavides did not detain Jones until after his partner
     shouted out that Naills had a gun. Benavides was perfectly entitled
     to temporarily detain Jones to preserve the status quo for safety
     reasons until the intentions of the plaintiffs could be sorted out. See
     Tamez v. City of San Marcos, 118 F.3d 1085, 1094–95 (5th Cir. 1997)
     (noting that a search or arrest will not violate the Fourth
     Amendment if it is justified by exigent circumstances, which include
     situations where the officer reasonably believed that his safety, or
     the safety of the general public, was at risk).
2.   The plaintiffs complain that the district court used erroneous jury
     instructions requiring reversal.     “The district court has broad
     discretion in formulating the jury charge, and we therefore review
     the instructions with deference.” Deines v. Texas Dep’t of Protective
     & Regulatory Servs., 164 F.3d 277, 279 (5th Cir. 1999).
           Plaintiffs first argue that the district court erred in
     submitting the “automobile exception” instruction to the jury
     because the facts of the case did not support its inclusion. The
     automobile exception allows police officers to conduct a warrantless

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         search of a car if the search is supported by probable cause.
         Maryland v. Dyson, 527 U.S. 465, 466, 119 S. Ct. 2013, 2014 (1999).
         The jury was properly instructed that if it found the plaintiffs were
         not seized (which the jury did), the automobile exception could
         apply.
               Plaintiffs next argue that the jury was improperly instructed
         on whether Benavides could temporarily detain Jones. Plaintiffs’
         complaint seems to be that the jury should have been required to
         find that Benavides could not detain Jones after Ruiz yelled the
         police code word for gun unless Benavides had a reasonable belief
         that Jones had committed a crime. The jury found instead that, in
         the context of this case, Benavides had a reasonable belief that
         Jones was a threat to his safety or the safety of someone else. That
         is a correct statement of the law and under those circumstances,
         Benavides was entitled to temporarily detain Jones. See Tamez, 118
         F.3d at 1094–95. The jury instruction was therefore correct.
    3.   Plaintiffs also contend that the district court should not have
         granted the City of Laredo’s motion to dismiss. In their initial
         complaint, the plaintiffs attempted to hold the City liable for the
         officers’ actions in violating their Fourth Amendment rights under
         a theory of municipal liability. But to succeed on their theory of
         liability, they had to prove that the officers violated their rights.
         See Monell v. Dep’t of Soc. Servs. of the City of New York, 436 U.S.
         658, 692, 98 S. Ct. 2018, 2036 (1978). Since the jury found that the
         officers did not violate the plaintiffs’ rights, the plaintiffs would
         have necessarily lost on their theory of municipal liability as well.


AFFIRMED.

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