                             REVISED
                 United States Court of Appeals,

                          Fifth Circuit.

                          No. 96-50594.

 Felix TAMEZ; Alice Tamez, Individually and as Guardian & Parent
of Joseph Tamez, and Mary Alice Tamez, Felix Tamez, Jr., and Debbie
Tamez, Plaintiffs,

   Alice TAMEZ, Individually and as Guardian & Parent of Joseph
Tamez, Mary Alice Tamez, Feliz Tamez, Jr., and Debbie Tamez,
Plaintiff-Appellant,

                                v.

     CITY OF SAN MARCOS, TEXAS; Daniel Misiaszek, Defendants-
Appellees.

                          Aug. 13, 1997.

Appeal from the United States District Court for the Western
District of Texas.

Before JOLLY, DUHÉ and EMILIO M. GARZA, Circuit Judges.

     EMILIO M. GARZA, Circuit Judge:

     In this case, a magistrate judge granted judgment as a matter

of law in favor of defendant Daniel Misiaszek, voiding a $275,000

civil jury verdict against him on the basis of official and
qualified immunity.   Plaintiffs, the survivors of Felix Tamez,

appeal the magistrate's grant of judgment as a matter of law.

Because we find that Misiaszek was immune from suit under both

federal and state law, we affirm.

                                I

     San Marcos Police Officer Daniel Misiaszek, with three other

police officers, responded to a "shots fired" call at a private

residence at around 9:30 one night.    When Misiaszek arrived at the

house, he walked through the back yard to investigate.    He saw two
men and two women who apparently did not look alarmed or suspicious

to him.   Misiaszek then walked around the front of the house.        From

the front porch, Misiaszek and fellow officer Paul Culin heard

noises from inside the house, including loud footsteps and the

sounds of a radio or television.

     At this time, Steven Marmolejo walked out of the house with a

piece of chicken and a glass of water, apparently unaware that the

officers were on the front porch.       Misiaszek recognized Marmolejo

as a suspect in a pending burglary investigation, and the officer

began to question him about the gun shots.           Marmolejo told the

officers on the porch that he had not heard any gunshots.1

     As Officer Culin questioned Marmolejo on the porch, Misiaszek

went to the doorway to speak to whomever was still in the house.

Witnesses   at    trial   offered   conflicting   testimony   about   what

Misiaszek knew at this point;        Marmolejo testified that he told

Misiaszek that there was no one in the house, while Misiaszek

testified that Marmolejo said Tamez was inside.        It is undisputed

that Misiaszek did not have a search warrant and that he had not

previously attempted to interview the person who made the "shots

fired" report.       The front door of the house was open, but the

screen door was shut.     Misiaszek opened the screen door, announced

"Police Officer," and leaned into the doorway to speak to whomever

was inside;      Marmolejo and Culin corroborated this account.

     When he leaned into the residence, Misiaszek saw Tamez, who

     1
      Marmolejo later testified in a deposition that he lied to
protect Felix Tamez, who was his uncle. Marmolejo also testified
that he had known Tamez had fired a gun in the back yard that
night and that he had seen Tamez holding the gun just before he
had walked out onto the porch.
was sitting on a chair with his back to the door, apparently

talking on the telephone.          Misiaszek did not know that Tamez was

holding a revolver in his right hand or that Tamez had been

drinking with Marmolejo and was severely intoxicated.                     Tamez's

blood alcohol level was determined later that evening to be about

.34. Officer Culin testified that he heard Misiaszek say, "Are you

all right, sir?"         Tamez turned to face the Misiaszek and pointed

his gun at the officer.         Misiaszek did not know that Tamez's weapon

contained only empty shell casings;             Tamez had fired all of the

bullets in his back yard earlier in the evening.            Misiaszek stepped

quickly into the house, crouched, and fired six rounds from his

service revolver.         Misiaszek missed Tamez with most of his shots

but hit him once in the right arm and once in the left leg.                    The

shots wounded Tamez but did not kill him.

      After securing Tamez's weapon, Misiaszek checked Tamez for

vital   signs   and      called   for    emergency   medical     assistance,   in

accordance with police policy.             Paramedics treated Tamez both at

the   scene   and   at    a   local     hospital.    The   San   Marcos   Police

Department conducted an internal review and a grand jury inquiry

into the shooting.            Both cleared Misiaszek of any criminal or

procedural wrongdoing.

      After his release from the hospital, Tamez filed the instant

action, alleging various federal and state law claims against

Officer Misiaszek and the City of San Marcos.                  In addition, the

state brought a criminal action against Tamez for attempted capital

murder in relation to the incident.           Tamez pleaded nolo contendere

to the charge. Tamez subsequently died of health problems that the
family stipulates are unrelated to the shooting. The plaintiffs in

this action, family members of Felix Tamez, filed a motion to

substitute    parties    under   Fed.R.Civ.P.      25,     and    the    magistrate

granted surviving family members permission to continue the suit in

the place of Felix Tamez.        They did not request and the magistrate

judge did not grant them intervention to proceed on their own

behalf.

     After further discovery, the plaintiffs filed a motion for

partial summary judgment, alleging that Misiaszek had violated

Tamez's Fourth Amendment rights as a matter of law.                Misiaszek and

the City responded and filed their own cross-motion for summary

judgment, asserting qualified and official immunity from suit. The

court denied both motions for summary judgment in their entirety.

Misiaszek filed an interlocutory appeal from the court's denial of

his dispositive motion, and we dismissed the appeal for want of

jurisdiction because of contested fact issues.

     The case went to trial before a magistrate judge, and at the

close of plaintiffs' case, both Misiaszek and the City moved for

judgment as a matter of law ("JML") under Fed.R.Civ.P. 50(a),

asserting various immunity defenses.             The court granted judgment

for the City of San Marcos on all claims and dismissed the suit

against the city.       The court then allowed the case to proceed

against   Misiaszek     only.     At    the   close   of    all    the    evidence,

Misiaszek's lawyer asked the court how it intended to deal with the

immunity issues, but he did not move for a JML at the close of the

evidence.    The judge noted at the close of all evidence that he was

convinced    that   Misiaszek     was   immune    from     suit.         The   judge
nonetheless decided to submit the case to the jury, because the

parties had already reached the end of the trial.               The judge

indicated that he would decide the immunity issues from the bench

after the verdict, if necessary.

     The jury found:        (1) that Misiaszek had violated the Fourth

Amendment     when   he    opened   Tamez's   door   without   warrant   or

permission;     (2) that Misiaszek was negligent in causing Tamez's

injuries; and (3) that Misiaszek did not employ unconstitutionally

excessive force in the shooting.           The jury awarded $25,000 in

actual damages and $50,000 in emotional injury damages to Tamez's

estate and $200,000 in damages to his family members,2 but it did

not award punitive damages.         After the verdict, Misiaszek filed a

motion for JML, primarily asserting his qualified and official

immunity defenses.        The court granted Misiaszek's motion, holding

that the officer enjoyed both qualified and official immunity from

suit.     Plaintiffs timely appealed.

                                      II

         Misiaszek moved for JML at the close of the plaintiffs' case

but failed to renew his motion at the close of all of the evidence.

We have held that failure to request JML (or its predecessors JNOV

     2
      Misiaszek challenged on appeal the magistrate judge's
decision to allow the jury to award $200,000 in damages to the
family members in their individual capacities. The family
members were parties to the suit only in the place of Felix Tamez
under Fed.R.Civ.P. 25. See also Felan v. Ramos, 857 S.W.2d 113,
118 (Tex.App.1993, writ denied) (under Texas Survival Act,
damages recoverable are only those the decedent sustained while
alive); Tex. Civ. Prac. & Rem.Code § 71.021 (Vernon 1995). We
express serious doubt about the propriety of the instruction and
about the award of individual damages to the family under federal
or state law; however, because we affirm the magistrate judge's
decision to vacate the entire jury award, we need not reach this
alternative ground for decision.
and directed verdict) at the close of all the evidence waives JML

after the jury verdict.     Allied Bank-West, N.A. v. Stein, 996 F.2d

111, 115 (5th Cir.1993);        McAnn v. Texas City Refining, Inc., 984

F.2d 667, 670 (5th Cir.1993).        Rule 50(b) provides that, after a

jury verdict, either party may "renew" a motion for JML made at the

close of all the evidence.          Accordingly, we have held that a

district court may not issue a JML after the verdict unless the

parties   make   the   proper   motion   at   the   close   of   all   of   the

evidence—a party cannot renew a motion it has not previously made.

Allied Bank, 996 F.2d at 114-15.

      Although Misiaszek's lawyer moved for JML at the close of the

plaintiff's case, that motion will not suffice to preserve the

motion after the verdict.       The law of this circuit holds that, by

introducing its own evidence after the plaintiff's case in chief,

and by failing to renew the motion for JML, the defense waived its

motion for judgment after the verdict.          McAnn, 984 F.2d at 671;

see also 5A Jeremy C. Moore et al., Moore's Federal Practice ¶

50.05[1] (2d ed. 1992).     Therefore, absent a motion for JML at the

close of all of the evidence, the magistrate should not have

allowed Misiaszek to make a Rule 50(b) motion after the verdict.

McAnn, 984 F.2d at 671;         Scheib v. Williams-McWilliams Co., 628

F.2d 509, 511-12 & n. 1 (5th Cir.1980).

     In the past we have excused certain "de minimis" departures

from technical compliance with Rule 50(b).          McAnn, 984 F.2d at 671.

See, e.g., Davis v. First Nat'l Bank, 976 F.2d 944, 948-49 (5th

Cir.1992) (excusing de minimis failure to comply with letter of

Rule 50(b)), cert. denied, 508 U.S. 910, 113 S.Ct. 2341, 124
L.Ed.2d 251 (1993);         Merwine v. Board of Trustees, 754 F.2d 631,

634-35 (5th Cir.) (same), cert. denied, 474 U.S. 823, 106 S.Ct. 76,

88 L.Ed.2d 62 (1985);        Bohrer v. Hanes Corp., 715 F.2d 213, 216-17

(5th Cir.1983) (same), cert. denied, 465 U.S. 1026, 104 S.Ct. 1284,

79 L.Ed.2d 687 (1984).          We have applied Rule 50(b) not as an

exercise in technical hair-splitting, but in the context of its

particular purposes as well as in the context of "securing a fair

trial for all concerned."        Merwine, 754 F.2d at 634.

       This case does not fit the profile of the traditional case in

which we have allowed a de minimis exception.          As we pointed out in

McAnn, the cases in which we have excused noncompliance have had

five things in common:        (1) we concluded that allowing the motion

would satisfy the purposes (if not the letter) of Rule 50;           (2) the

trial court had reserved, not denied, a motion for JML at the close

of the plaintiff's case;       (3) the defendant called no more than two

witnesses before closing;        (4) only a few minutes elapsed between

the motion for JML and the conclusion of all the evidence;           and (5)

the plaintiff introduced no rebuttal evidence.          In McAnn, we found

that   none    of   these   factors   was   present.    984   F.2d   at   672.

Therefore we held that the case involved a complete failure to

follow the requirements of the rule, not a de minimis departure.

       In the instant case, the trial court denied JML at the close

of plaintiff's case, agreeing to revisit the issue after the jury

verdict.      After the close of plaintiffs' case, the defense called

five witnesses, and nearly five hours elapsed between the motion

for JML and the close of the defendant's case.         The Tamezes offered

no rebuttal evidence after the close of the defendant's case.               On
the whole, this case (like McAnn) does not present facts similar to

the other cases in which we have found a de minimis exception to

total compliance with Rule 50.

     Nonetheless, we find that the failure in this case to make an

actual motion at the close of the evidence was a technical,

formalistic defect, not a substantive one.    In the instant case,

Misiaszek moved for JML at the close of plaintiffs' case.       In

denying the motion, the court explicitly stated that it would

consider the immunity issues after the jury returned a verdict.

Furthermore, although Misiaszek's lawyer did not actually make the

Rule 50 motion at the close of all the evidence, he did make an

explicit request for the court to consider JML after the verdict,

and the court agreed to reconsider the legal issues after the

verdict, without objection by plaintiffs.   After a brief recess at

the close of the defendant's case, the following colloquy took

place:

     MR. NAVARRO [Counsel for Misiaszek]: Did I understand the
     Court correctly that you are going to hold the official and
     qualified immunity issues as law questions for the Court?

     THE COURT: Well, I will tell you what, frankly, I'm planning
     to do. And I don't want to dis-spirit [sic] Mr. Galbraith
     [Counsel for the Tamezes], but I have a hard time seeing where
     you've shown that the officer did anything that would show
     that he violated his qualified or official immunity.

          But, you know, we got to the point where we got in the
     case. And you had an expert, which I thought was—frankly, I
     mean, he did—for the case he had, I thought he did a pretty
     good job. I just—I don't think as the facts played themselves
     out, I didn't ever hear anyone come on and say that he did
     something that I think a reasonable police officer would not
     have done in his situation.

          But that's not a reason, I don't think, to not let it go
     before a jury. You've tried the case. You know, your people
     have invested their time in it.
           And what I'm planning to do is let you go to the jury.
      And then we can figure out what to do after that comes back.
      So at least if you go up on appeal, we won't all have to do
      this again.

      MR. NAVARRO: Well, the only reason I asked that is because
      there's still some language and questions on the immunity
      questions in the charge. And if I understood that, the Court
      was going to hold those as law questions, which is what I
      think they really are. I assumed—

      THE COURT: I think they are, really, too. And, frankly—so
      what I'm going to do is let the case against the officer go
      forward. And that way you can get whatever verdict you get
      against the defendants—against the officer. And then we'll
      figure out what to do afterwards if I—

      MR. NAVARRO: And we may not need to address that issue.            And
      if we do, we will deal with it as a question of law.

      THE COURT:    Right.

Counsel for the plaintiffs did not object to this agreement.

      It is clear from the record that the defense counsel brought

the immunities issues to the court's and the plaintiffs' attention

at the close of all evidence for the purpose of having the court

decide the issues from the bench.           Presumably, once the judge

agreed to consider those questions as a matter of law after the

verdict, plaintiffs' counsel could have objected or defense counsel

could have made a formal motion for the record.          But such a motion,

in the context of the very specific conversation quoted above,

would have been an academic exercise.

      Although we would prefer full compliance with the letter of

Rule 50, we find that the discussion at issue served the purposes

of the rule and adequately informed the plaintiffs and the court

that Misiaszek was raising immunity issues after the jury returned.

At   most,   this   case   involves   a   failure   to   comply   with   the

formalities of a 50(b) motion before the court.          Therefore we find
that counsel's discussion of the issues with the judge, the judge's

agreement to revisit the immunities issues after the verdict, and

the plaintiffs' failure to object, serve the purposes of an actual

Rule 50(b) motion. See Greenwood v. Societe Francaise De, 111 F.3d

1239, 1244-45 (5th Cir.1997) (holding that purposes of Rule 50 are

satisfied when court and plaintiff are alerted to grounds on which

defendant contends evidence is insufficient prior to submission of

case to jury);       Villanueva v. McInnis, 723 F.2d 414, 417 (5th

Cir.1984)   (same).       Accordingly,      we    will   not   reverse   the

magistrate's post-verdict judgment for failure to make the motion

at the close of the evidence.

                                   III

     In addition to their challenge to the procedure by which the

magistrate judge granted JML, plaintiffs claim that the court

misconstrued federal and state immunities law in granting judgment.

     The magistrate judge issued separate jury instructions for the

Fourth Amendment search and for the use of force in the shooting.

The jury held that Misiaszek did not use excessive force in

shooting Tamez, but that the officer negligently caused Tamez's

injuries and that his entry into the Tamez household itself was an

actionable constitutional wrong.      The court issued a judgment as a

matter of law, trumping the jury's verdict on the federal Fourth

Amendment   claims    because   Misiaszek   was    entitled    to   qualified

immunity.   The court also mooted the jury's finding on a state

negligence claim, holding that, under Texas law, Misiaszek was

officially immune from suit.      The existence of qualified immunity

is a question of federal law, and we consider it only insofar as it
pertains to the federal Fourth Amendment claim for entry into the

Tamez household.      The official immunity issue is a matter of state

law, which we consider separately.

        We review de novo the magistrate judge's legal conclusions,

whether regarding federal or state law, in entering judgment under

Rule    50(b).       Pierce    v.   Texas   Dep't   of   Criminal    Justice,

Institutional Div., 37 F.3d 1146, 1149 (5th Cir.1994), cert.

denied, 514 U.S. 1107, 115 S.Ct. 1957, 131 L.Ed.2d 849 (1995).             In

reviewing the magistrate judge's decision, we consider all of the

evidence in the light most favorable to the nonmoving party—here

the Tamezes.     Fontenot v. Cormier, 56 F.3d 669, 673 (5th Cir.1995).

The magistrate judge's rulings on qualified immunity and official

immunity are questions of law, which we review de novo.             Pierce, 37

F.3d at 1149.

                                       A

       Under   the   federal    doctrine    of   qualified   immunity,    law

enforcement officers may not be held liable for civil damages, so

long as they are performing a discretionary function that does not

violate "clearly established statutory or constitutional rights of

which a reasonable person would have known." Harlow v. Fitzgerald,

457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982).

Because qualified immunity is an affirmative defense, the defendant

must both plead and establish his entitlement to immunity.               Gomez

v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923, 64 L.Ed.2d 572

(1980); Cronen v. Texas Dep't of Human Services, 977 F.2d 934, 939

(5th Cir.1992).

        At the outset, we briefly address Tamez's contention that
Misiaszek was not performing a discretionary duty when, responding

to the shots fired call, Misiaszek decided to check in the house to

see   if   anyone    was   injured.    An    official    acts    within   his

discretionary authority when he performs nonministerial acts within

the boundaries of his official capacity.        Cronen, 977 F.2d at 939.

Misiaszek's actions here were not pursuant to specific orders, or

spelled out in minute detail beforehand.          His response required

quick, but careful deliberation and the exercise of his judgment.

In particular, the decision whether to enter Tamez's house required

Misiaszek   to   balance    the   property   rights     and   constitutional

liberties of the homeowner against the interests of anyone who

might be hurt inside, considerations of the safety of his fellow

officers, and the exigencies of the moment.        This decision clearly

falls within the realm of discretionary decisions police officers

commonly make.      As such, Misiaszek satisfies the first requirement

of the Harlow test for qualified immunity.

      Whether Misiaszek's actions violate clearly established rights

of which a reasonable person would have known, as Tamez contends,

is a closer question.      This requires us to decide whether the law

on the night in question clearly established that the intrusion was

an unreasonable search under the Fourth Amendment.            First, we will

examine the facts established at trial, viewed in the light most

favorable to the Tamezes, and we will consider what Misiaszek knew

on the night of the night in question.           Then we will determine

whether Misiaszek's actions violated Tamez's rights under the

Fourth Amendment, as that law stood on that night.            Finally, if we

find that there was a violation of Tamez's rights as a matter of
law, we will consider whether a reasonable person would have known

that Misiaszek's actions violated such a right.     See Dickerson v.

McClellan, 101 F.3d 1151, 1157-58 (6th Cir.1996) (setting out

procedure for deciding qualified immunity in Fourth Amendment

context).

                                  1

     Misiaszek's account of the events was different from Tamez's,

but we consider the evidence in the light most favorable to Tamez.

Fontenot, 56 F.3d at 673.   Misiaszek did not have a warrant, but he

knew that someone had reported shots fired at Tamez's house.

Misiaszek recognized Marmolejo, the man who came out of the house,

as a suspect in a burglary.   Misiaszek knew that Marmolejo denied

that any shots had been fired, although neighbors had reported

hearing them.    Misiaszek testified that, as the officers were

questioning Marmolejo on the porch, Misiaszek heard noise coming

from the house, such as a television or loud music.

     There was conflicting evidence at trial regarding whether

Marmolejo told officers that Tamez was in the house, and it is not

clear which version of events is more favorable to the Tamezes.

Marmolejo testified that he told Misiaszek that no one was in the

house.   Misiaszek testified that Marmolejo told him that Tamez was

in this house.     Because neither version of the facts is more

favorable to the Tamezes, we will consider both as possibilities.

     The parties agree that Misiaszek stood on the porch, announced

himself as a police officer, opened the screen door, and looked to

see if anyone was in the house.       Tamez does not contest Culin's

testimony that Misiaszek asked Tamez, "Are you all right, sir?"
Misiaszek claimed that he peered inside the door frame to see if

anyone was inside, whereas Tamez apparently claimed that Misiaszek

fully stepped into the house when he announced himself.3     Taking

the evidence in the light most favorable to the Tamezes, we will

assume that Misiaszek actually entered the house.

                                  2

         In view of the evidence as the Tamezes present it, we now

consider whether Misiaszek's entry violated Tamez's rights under

the Fourth Amendment.   This question is different from the average

search and seizure case, because this is a civil suit and because

it is before us in the context of a grant of JML on a qualified

immunity question.

     The Supreme Court has stated in Siegert v. Gilley that the

first step in our inquiry must be whether the Tamezes' assertions

state a Fourth Amendment claim at all.      500 U.S. 226, 232, 111

S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991) ("A necessary concomitant

to the determination of whether the constitutional right asserted

by a plaintiff is "clearly established' at the time the defendant

acted is whether the plaintiff has asserted a violation of a

constitutional right at all.").       The Fourth Amendment requires

that:

     The right of the people to be secure in their persons, houses,
     papers, and effects, against unreasonable searches and
     seizures, shall not be violated, and no Warrants shall issue,
     but upon probable cause, supported by Oath or affirmation, and
     particularly describing the place to be searched, and the

     3
      Tamez did not testify because he died before the trial.
For most of Tamez's side of the story, the court relied on his
response to interrogatories taken pursuant to his separate
conviction for attempted capital murder. We discuss the use of
interrogatory evidence in section IV of this opinion.
      persons or things to be seized.

U.S. Const. amend.    IV. Tamez asserted that Misiaszek's entry into

his home was an unreasonable search under the Fourth Amendment, and

it was well established at the time of this incident in 1991 that

a warrantless search of a home may be unconstitutional under the

Fourth Amendment.     See, e.g., Payton v. New York, 445 U.S. 573,

587-89, 100 S.Ct. 1371, 1381-82, 63 L.Ed.2d 639 (1980);           Thomas v.

Kippermann, 846 F.2d 1009, 1011 (5th Cir.1988);           Carnejo-Molina v.

INS, 649 F.2d 1145, 1149 (5th Cir. Unit A 1981).                 Misiaszek

contends that, to the extent that his entry into the house was a

search under the Fourth Amendment, it was reasonable under the

circumstances.    Therefore, as an initial matter, we find that the

Tamezes state a claim under the Fourth Amendment, the threshold

showing that Siegert requires.

       Next, deciding whether Misiaszek's conduct actually violated

the   Fourth   Amendment   turns   on   the   following    question:   was

Misiaszek's intrusion into Tamez's home unreasonable under the

circumstances? See Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct.

1801, 1803, 114 L.Ed.2d 297 (1991) ("The touchstone of the Fourth

Amendment is reasonableness.").         Misiaszek claims that the brief

intrusion was justified by the need to make sure no one was injured

by the gunshots that prompted the "shots fired" call.            Therefore

the narrow question before us is whether it is reasonable under the

Fourth Amendment for a police officer, responding to a nighttime

"shots fired" call, to step into the front door of a home without

a warrant to ensure that no one inside has been hurt.

      The text of the Fourth Amendment does not state conclusively
what kinds of searches are reasonable, but the Supreme Court has

created two important presumptions in this area.            First, the Court

has held that police officers generally must conduct searches

pursuant to probable cause and with a valid search warrant.              Katz

v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d

576 (1967).   This is merely a presumption, however, and there are

several exceptions to the probable cause and warrant requirements,

including investigatory detentions, searches incident to a valid

arrest, seizure of items in plain view, exigent circumstances,

consent   searches,    vehicle   searches,      container    searches,   and

searches in which the special needs of law enforcement make the

probable cause requirement impracticable.             See generally David

Orlin, et al., Warrantless Searches and Seizures, 85 Geo. L.J. 847,

847 (1997) (collecting cases).

      Second, the Court has held that warrantless entries into the

home are presumptively unreasonable.          Payton v. New York, 445 U.S.

573, 587, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980).                Again,

however, this is merely a presumption;           the Court has also held

that exigent circumstances will justify warrantless searches or

arrests. See Minnesota v. Olson, 495 U.S. 91, 100, 110 S.Ct. 1684,

1690, 109 L.Ed.2d 85 (1990);       Welsh v. Wisconsin, 466 U.S. 740,

749-50, 104 S.Ct. 2091, 2097-98, 80 L.Ed.2d 732 (1984);             see also

United States   v.    Richard,   994   F.2d    244,   247   (5th   Cir.1993).

Therefore, a showing of exigent circumstances will rebut both

presumptions.   Under exigent circumstances, even a warrantless

search does not violate the Fourth Amendment, so long as the scope

of the search is no broader than necessary to deal with the
exigency.   Warden v. Hayden, 387 U.S. 294, 299, 87 S.Ct. 1642,

1646, 18 L.Ed.2d 782 (1967);     United States v. Rico, 51 F.3d 495,

500-01 (5th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 220, 133

L.Ed.2d 150 (1995).

      The determination of whether exigent circumstances justified

a warrantless search is a mixed question of law and fact.     United

States v. Hudson, 100 F.3d 1409, 1417 (9th Cir.1996);    Cf. Ornelas

v. United States, --- U.S. ----, ----, 116 S.Ct. 1657, 1661-62, 134

L.Ed.2d 911 (1996) (the existence of reasonable suspicion or

probable cause are mixed questions of law and fact); United States

v. McConney, 728 F.2d 1195, 1199-1205 & n. 4 (9th Cir.) (en banc)

(probable cause and exigent circumstances implicate very similar

standard of review concerns), cert. denied, 469 U.S. 824, 105 S.Ct.

101, 83 L.Ed.2d 46 (1984).

      The question of whether exigent circumstances justified a

warrantless search has two parts.    First, as a factual matter, the

jury (or judge in a bench trial) must sit as a finder of fact,

deciding which facts (alleged to form the basis for the claim of

exigency) are established by the evidence.     Cf. Ornelas, --- U.S.

at ----, 116 S.Ct. at 1661-62 (first step of probable cause inquiry

involves determination of historical facts leading up to stop or

search). We will reverse a jury's findings regarding the existence

of facts only for clear error.    United States v. Howard, 106 F.3d

70, 74 (5th Cir.1997).   Second, the court must decide, as a matter

of law, whether the facts that have been established, as a matter

of law, create exigent circumstances sufficient to justify a

warrantless search. This is a legal determination, which we review
de novo.    Hudson, 100 F.3d at 1416;    United States v. Tibolt, 72

F.3d 965, 969 (1st Cir.1995), cert. denied, --- U.S. ----, 116

S.Ct. 2554, 135 L.Ed.2d 1073 (1996);      United States v. Anderson,

981 F.2d 1560, 1567 (10th Cir.1992) ("Although we accept underlying

fact findings unless they are clearly erroneous, "the determination

of whether those facts satisfy the legal test of exigency is

subject to de novo review.' ") (quoting United States v. Stewart,

867 F.2d 581, 584 (10th Cir.1989)).

     At trial, the jury explicitly found that exigent circumstances

did not exist.   However, the court erroneously instructed the jury

to answer both the factual question and the legal question.           The

jury questionnaire read:

     Do you find from a preponderance of the evidence that there
     existed one or more exigent circumstances, as these have been
     defined to you in the jury instruction, that otherwise
     justified the investigation of the "shots fired" call
     conducted by Defendant Misiaszek?

(emphasis   added).   Although   the    question   of   whether   certain

conditions were present is surely a question for the jury, the

legal question of whether those circumstances justified Misiaszek's

actions is a legal question that should have been determined by the

court.

     As we have stated, we review the jury's determinations of fact

for clear error and the court's conclusions of law de novo.         It is

not clear, in this case, whether the jury found that facts did not

exist or whether it found that the circumstances did not, as a

matter of law, justify Misiaszek's search.     It simply answered the
question above:        "No."4 However, in this case, the parties agree to

most of the relevant facts.            The family does not dispute that Felix

Tamez      fired   a   pistol     in   his   back   yard,   that    Misiaszek    was

responding to a "shots fired" call at night in a residential

neighborhood, that the officers had not yet located the gun, that

officers recognized Marmolejo as a suspect in another crime, or

that Misiaszek         stepped    just   into    the   house    without   a   search

warrant.      The jury did not need to sit as a factfinder to determine

whether these facts and circumstances existed, because the parties

agree on virtually all relevant facts.              Therefore, we will proceed

to determine de novo whether the stipulated facts, in the light

most       favorable   to   the    Tamezes,     justified      Misiaszek's    brief,

warrantless search.             In making this determination, we are to


       4
      In its jury instructions, the court defined exigent
circumstances thus:

               The exigent circumstances exception to the Fourth
               Amendment warrant requirement will justify a
               warrantless search when that search is made for one or
               more of the following reasons:

               1) to render emergency aid or assistance to persons
                    reasonably believed to be in distress or need of
                    assistance; and/or,

               2) to prevent destruction of evidence or contraband;
                    and/or,

               3) to protect officers from other suspects or persons
                    from whom they reasonably believe may be present,
                    and if so, whom they reasonably believe may be
                    armed and dangerous.

                    In assessing whether any one or more of the
               foregoing exigencies applies, you must use an objective
               standard of reasonableness in assessing the conduct of
               the officer. That is, you must consider all the facts
               and circumstances that existed at the time that you
               find the warrantless "search" to have occurred.
consider the context and circumstances as they would appear to a

reasonable and prudent police officer standing in Misiaszek's

shoes. United States v. Riley, 968 F.2d 422, 425 (5th Cir.), cert.

denied, 506 U.S. 990, 113 S.Ct. 507, 121 L.Ed.2d 442 (1992).

     The Supreme Court has found as a matter of law that exigent

circumstances will justify a warrantless search or seizure in many

circumstances:     when there is probable cause for the search or

seizure and there is an imminent danger that someone will destroy

evidence, Cupp v. Murphy, 412 U.S. 291, 294-96, 93 S.Ct. 2000,

2003-04, 36 L.Ed.2d 900 (1973), when the safety of law enforcement

officers or the general public is threatened, Hayden, 387 U.S. at

298-99, 87 S.Ct. at 1645-46, or when a suspect is likely to flee

before the officer can obtain a warrant, Minnesota v. Olson, 495

U.S. 91, 100, 110 S.Ct. 1684, 1689-90, 109 L.Ed.2d 85 (1990).

         There is no evidence in the record that there was any threat

of flight or the destruction of evidence.      On the other hand, an

officer in Misiaszek's position reasonably could have believed that

the safety of the general public, or even the safety of the police

officers, created exigent circumstances.        At the date of the

incident in 1991, the Supreme Court had already established the

exigent circumstances exception to the warrant requirement of the

Fourth Amendment.     See, e.g., Hayden, 387 U.S. at 298-99, 87 S.Ct.

at 1645-46. However, few cases decided before that date considered

whether similar circumstances are exigent enough to justify a

warrantless search.5

     5
      Several cases decided since 1991 have presented almost
identical circumstances. See, e.g., Dickerson v. McClellan, 101
F.3d 1151, 1160 (6th Cir.1996) ("shots fired" call justified
     In Hayden, the Supreme Court held that police officers were

justified in conducting a warrantless search of a house to which

the victims of an armed robbery had chased the robber.   Id. at 297,

87 S.Ct. at 1645.   Inside defendant Hayden's house, police found a

pistol, shotgun, and ammunition, as well as clothes that matched

the description of the robber;     all were admitted into evidence

against Hayden at trial.    Id. In a petition for habeas corpus,

Hayden claimed that the evidence should have been excluded at trial

as the fruits of a warrantless search illegal under the Fourth

Amendment. The Court held that the search was not unconstitutional

because the presence of weapons on the scene and the potential for

violence created an exigency necessitating quick action:

     The Fourth Amendment does not require police officers to delay
     in the course of an investigation if to do so would gravely
     endanger the lives of others. Speed here was essential, and
     only a thorough search of the house for persons and weapons
     could have insured that Hayden was the only man present and
     that the police had control of all weapons which could be used
     against them or to effect an escape.

Id. at 298-99, 87 S.Ct. at 1646.

     In the Fifth Circuit, we have not decided many cases closely

on point.   However in our cases preceding the night of the search

in this case, we have held more generally that the presence of an

armed suspect who poses an immediate threat to citizens can justify



warrantless protective sweep). However, in considering whether
the search violated a clearly established right, we consider only
the law as established when the official acted, not at the time
the case is decided. See, e.g., United States v. Lanier, ---
U.S. ----, ----, 117 S.Ct. 1219, 1227, 137 L.Ed.2d 432 (1995) ("a
general constitutional rule already identified in the decisional
law may apply with obvious clarity to the specific conduct in
question, even though "the very action in question has [not]
previously been held unlawful,' ") (quoting Anderson, 483 U.S. at
640, 107 S.Ct. at 3039).
warrantless searches. In United States v. Jackson, police officers

arrested two men, as they were leaving a hotel room, for selling

cocaine.    700 F.2d 181, 184 (5th Cir.), cert. denied sub nom.,

Hicks v. United States, 464 U.S. 842, 104 S.Ct. 139, 78 L.Ed.2d 132

(1983). Although the officers had been told that the suspects were

armed, they did not find a gun during a patdown incident to the

arrest. Id. We held that exigent circumstances permitted police to

search a motel room even after the arrest of two suspects, because

the officers suspected that the arrestees were not acting alone,

and the officers had reason to believe that other suspects had a

gun in one of the motel rooms.       Id. at 190.

     In McGeehan v. Wainwright, we held that exigent circumstances

justified a warrantless police search of a trailer after four bank

robbery suspects exited it.         526 F.2d 397, 399 (5th Cir.1976),

cert. denied, 425 U.S. 997, 96 S.Ct. 2214, 48 L.Ed.2d 823 (1975).

In that case, as in this one, police knew that a weapon had been

used about an hour earlier, and none of the suspects who exited the

trailer carried the weapon.         Id. We held that the police could

reasonably suspect that "additional confederates might be concealed

inside   the   darkened   trailer   with   the   missing   shotgun,"   thus

justifying a warrantless protective sweep of the trailer.          Id.

     Cases from other circuits have established that the firing of

a weapon in a residential neighborhood at night creates exigent

circumstances.    In United States v. Arcobasso, a case similar to

ours, the Eighth Circuit found that a "shots fired" call created

circumstances exigent enough to justify a warrantless search of a

house.     882 F.2d 1304 (8th Cir.1989).           In that case, police
officers responded to a nighttime call indicating that shots had

been fired in defendant Arcobasso's residence.    Id. at 1305.   When

they arrived, the officers heard the clicking sound of a pistol

being "dry fired," or the sound of the trigger being pulled on an

unloaded weapon.   When Arcobasso saw the officers, he fled through

an open window and tried to escape.      The officers stopped him,

patted him down for weapons, and found none.     Id.

      When police asked Arcobasso if anyone else was in the house,

Arcobasso responded only, "Rick." Believing that there may be a

gunshot victim inside, the officers entered Arcobasso's house

without consent and without a warrant, where they seized a loaded

shotgun in plain view, a revolver, spent and live ammunition, and

one Rick Gaines.     Id. The Eighth Circuit held that the officers

could reasonably believe from the "shots fired" call that a person

in the house may have required immediate assistance, or that "Rick"

might have posed a danger to the officers' safety.     Id. at 1307.

The court therefore held that the items seized were admissible.

Id.

      The officers on Tamez's front porch were responding to a

"shots fired" call, which, if accurate, necessarily involved a

firearm of some sort.     The officers recognized Marmolejo as the

target of a separate criminal investigation, and they knew he did

not own the house.    They could hear noise in the house, but could

not determine, without at least breaking the threshold of the

doorway, whether anyone was inside.      The officers had not yet

located the gun used to fire the reported shots, nor had they

conclusively determined that there were no shooting victims or
hostages in the house.         Under these circumstances, Misiaszek could

reasonably have harbored concern for the lives of innocent people,

including Tamez himself, or for the lives of Misiaszek's fellow

officers.      Therefore, under the cases cited, we find that the

undisputed circumstances of the instant case were sufficiently

exigent   as    a   matter     of   law    to   justify   Misiaszek's   brief,

warrantless entry into the house.

     The Tamezes further claim that, to the extent any exigent

circumstances       existed,    those     circumstances    were    created    by

Misiaszek and the other police officers.              We have held that the

government may not justify a warrantless search with exigent

circumstances of its own making.            United States v. Thompson, 700

F.2d 944, 950 (5th Cir.1983). However, the threat that someone has

been shot or is being held against their will inherent in a "shots

fired" call were not created by the San Marcos Police, but by

Tamez's discharge of a firearm in a residential neighborhood.                The

Tamezes' claim that the officers caused the exigent circumstances

is without merit.

     To summarize our Fourth Amendment analysis:             The question of

whether exigent circumstances justify a warrantless search is a

mixed question of law and fact.           Most of the facts in this case are

not in dispute.        As a matter of law, we hold that the exigent

circumstances in this limited case justified the brief, warrantless

intrusion into Tamez's home, and we find that Misiaszek did not

violate   Tamez's     Fourth     Amendment      rights.     This   holding   is

sufficient to end our inquiry.            If the Misiaszek did not violate

Tamez's Fourth Amendment rights by opening the screen door and
stepping inside the house, Misiaszek is not only protected by

qualified     immunity,        but    there     is     also     no     violation      of

constitutional rights to form the basis of a section 1983 claim in

the first instance.       The magistrate judge did not err in granting

JML on qualified immunity grounds.

                                         B

       The    court     also   granted    JML    on    the     Tamezes'      state   law

negligence claims, holding that they are barred by the Texas

doctrine of official immunity.                Under Texas law, "[g]overnment

employees are entitled to official immunity from suit arising from

the performance of their (1) discretionary duties in (2) good faith

as   long   as   they    are    (3)   acting    within        the    scope   of   their

authority."      City of Lancaster v. Chambers, 883 S.W.2d 650, 653

(Tex.1994).

       As we decided above, Misiaszek was clearly performing a

discretionary duty when, responding to the shots fired call, he

decided to check in the house to see if anyone was injured.                       Under

Texas law, if an action involves personal deliberation, decision,

and judgment, it is discretionary.                   Id. at 654.        Actions that

require obedience to orders or the performance of a duty to which

the actor has no choice are ministerial.                 Id. Our conclusion is

therefore no different in the state law context:                          Misiaszek's

actions clearly involved judgment and discretion, not ministerial

following of orders.

       The "good faith" inquiry is not well defined in Texas law of

official immunity.       See Travis v. City of Mesquite, 830 S.W.2d 94,

103 (Tex.1992) (Cornyn, J., concurring).                The Texas Supreme Court
recently applied the following formulation of good faith in a case

involving a high-speed chase on an interstate highway:

     We hold that an officer acts in good faith in a pursuit case
     if: a reasonably prudent officer, under the same or similar
     circumstances, could have believed that the need to
     immediately apprehend the suspect outweighed a clear risk of
     harm to the public in continuing the pursuit.

Chambers, 883 S.W.2d at 656.         The court went on to hold that, "To

controvert the officer's summary judgment proof on good faith, the

plaintiff     must    ...   show   that   "no   reasonable    person    in   the

defendant's position could have thought the facts were such that

they justified defendant's acts.' "         Id. at 657.      There is no Texas

case on point establishing what would establish good faith in the

context of a brief, warrantless intrusion into a home. By analogy,

we find that, under Texas law, an officer would show good faith if

a   reasonably       prudent   officer,    under   the    same     or   similar

circumstances, could have believed that the need to immediately

enter   the    home     outweighed   a    homeowner's     rights    under    the

Constitution.        See Farm Credit Bank of Texas v. Guidry, 110 F.3d

1147, 1149 (5th Cir.1997) (when state law is silent, court must

make "Erie guess" as to how state supreme court would rule).                 The

Texas Supreme Court has given us additional guidance, holding that

the objective test for "good faith" was derived substantially from

the standard for qualified immunity, which we discussed above.

Chambers, 883 S.W.2d at 656.

     As we have already discussed in the Fourth Amendment context,

we find that Misiaszek's actions on the night in question were

objectively reasonable.        A reasonable police officer in the same

situation could have believed that the exigencies of the moment
called for a warrantless, minor intrusion into Tamez's house.

Therefore we find as a matter of law that Misiaszek was acting in

good faith, as defined by Texas law.

      Finally, we consider whether Misiaszek was acting within the

scope of his authority.       An officer acts within the scope of his

authority if he discharges the duties generally assigned to him.

Id. at 658.   Misiaszek has conclusively shown that he was on the

job, investigating a "shots fired" call, fulfilling the duties of

his office.   There is no question that he was acting within the

scope of his authority.        Therefore, we find that Misiaszek has

proven all that he must in order to make a showing of official

immunity.     We   agree    with    the    magistrate   that   Misiaszek      was

officially immune from the Tamezes' state negligence claims as a

matter of law.

                                      IV

     The Tamezes also challenge the magistrate judge's decision at

trial to allow Misiaszek and the City to use Felix Tamez's sworn

answers to interrogatories from his separate but related charge of

attempted capital murder. We hold that it was not reversible error

for the court to admit the statements into evidence.              Felix Tamez

was, of course, not available to testify at trial;             only Tamez and

defendant Misiaszek witnessed the sequence of events in the house.

The Tamezes originally moved the court to allow the interrogatories

into evidence to detail Tamez's account of events.                    The court

granted   plaintiffs'      motion   and    simultaneously      held   that,    if

plaintiffs could introduce testimony from the interrogatories, the

defendants could as well.           The magistrate judge held that the
interrogatory response had special indicia of reliability and that

the special circumstance of Tamez's death before trial warranted

the admission of the interrogatory answers.         The Tamezes did not

object to the court's decision to allow Misiaszek and the City to

use Tamez's interrogatory responses.

      District courts are given broad discretion in rulings on the

admissibility of evidence.       Rock v. Huffco Gas & Oil Co., 922 F.2d

272, 277 (5th Cir.1991).       We will reverse the court's evidentiary

rulings only when the court has clearly abused its discretion and

a substantial right of a party is affected.              Id.;     see also

Fed.R.Evid. 103(a).

     As an initial matter, we seriously question the use of sworn

responses to interrogatories as direct evidence at trial, because

such responses are not subject to cross-examination.            The Federal

Rules of Evidence explicitly discourage the admission of such

direct testimony by an out of court statement not subject to cross

examination.    The Rules allow into evidence:

     Testimony given as a witness at another hearing of the same or
     a different proceeding, or in a deposition taken in compliance
     with law in the course of the same or another proceeding, if
     the party against whom the testimony is now offered, or in a
     civil action or proceeding, a predecessor in interest, had an
     opportunity and similar motive to develop the testimony by
     direct, cross, or redirect examination.

Fed.R.Evid. 804(b)(1) (emphasis added).

     However, the Tamezes were the party that asked the court to

allow the use of the interrogatories at trial.           They can hardly

contend   now   that    they   were   prejudiced   by    the    defendants'

introduction    of     the   interrogatory   responses   into     evidence.

Similarly, the Tamezes cannot complain that Tamez was prejudiced by
the introduction of evidence from a criminal proceeding against

him.       The Tamezes' lawyer, in his opening statement, raised the

fact that the state had charged Tamez with attempted capital murder

in the incident, as well as the fact that Tamez pleaded nolo

contendere.      Furthermore, the Tamezes did not object in a timely

fashion to the district court's decision to allow Misiaszek and the

City to use the interrogatory responses.       Finally, although the

court did not characterize it as such, Tamez's responses to the

interrogatory would have been admissible at trial as admissions of

a party opponent under Fed.R.Evid. 801(d)(2)(A) and (B). Therefore

we find that the court did not abuse its discretion in admitting

the interrogatory testimony.6

                                   V

       Therefore we AFFIRM the magistrate judge's grant of JML

holding that Misiaszek is immune from suit under federal and state

law, AFFIRM the JML in favor of the City of San Marcos, and AFFIRM

the dismissal of plaintiffs' claims.




       6
      The family also challenges the magistrate judge's entry of
judgment as a matter of law for the City of San Marcos. After a
careful review of the law and the record in this case, we find
that the magistrate judge did not err, and we affirm based on the
magistrate judge's reasoning.
