                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS           May 24, 2006
                         FOR THE FIFTH CIRCUIT
                                                           Charles R. Fulbruge III
                                                                   Clerk

                             No. 05-40362
                           Summary Calendar


HERMENEGILDO RODRIGUEZ,

                                           Plaintiff-Appellant,

versus

ROBERT ZEPEDA,

                                           Defendant-Appellee.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 7:03-CV-364
                      --------------------

Before Barksdale, Stewart, and Clement, Circuit Judges.

PER CURIAM:*

     Hermenegildo Rodriguez, a Texas resident, appeals from the

district court’s entry of judgment in favor of defendant-appellee

Robert Zepeda, a police officer, following a jury trial in

Rodriguez’s 42 U.S.C. § 1983 civil rights action.    Rodriguez

contends that the district court abused its discretion in

admitting evidence that he used drugs on the day he was shot by

Officer Zepeda.

     In his complaint, Rodriguez alleged that Officer Zepeda

subjected him to excessive force when he shot Rodriguez without

provocation, while Zepeda and other police officers were


     *
       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this opinion should not be published and is not precedent except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. 05-40362
                                -2-

executing a search warrant for a house where Rodriguez was

staying.   Rodriguez asserted that Zepeda shot him without

identifying himself and without warning.   Zepeda, however,

asserted that Rodriguez, who was standing in the house’s carport

when the police arrived in an unmarked vehicle, failed to heed

police commands that he get on the ground and instead reached

into his waistband and pulled out an object that Zepeda believed

to be a weapon.   It was undisputed that, after Rodriguez was shot

and fell in the carport, a crack pipe and a cigarette lighter

were found near him on the ground.

     The court overruled Rodriguez’s pre-trial motion in limine

to the extent that he sought to prevent Officer Zepeda from

introducing medical and other evidence that Rodriguez was under

the influence of drugs at the time of the shooting.    Rodriguez

argues that such evidence was irrelevant and prejudicial bad-

character or bad-act evidence.   Officer Zepeda argues that the

drug-use evidence was relevant to resolving the factual disputes

regarding whether Zepeda and other officers identified themselves

and yelled commands that Zepeda drop to the ground and whether a

drug-impaired condition may have prevented Rodriguez from heeding

and obeying these commands.

     We review the denial of a motion in limine for abuse of

discretion.   Buford v. Howe, 10 F.3d 1184, 1188 (5th Cir. 1994).

“The trial judge’s assessment of relative probative value of

evidence and unfair prejudice is generally accorded great

deference because of his or her first-hand exposure to evidence

and familiarity with the course of the proceedings.”
                            No. 05-40362
                                 -3-

International Ins. Co. v. RSR Corp., 426 F.3d 281, 300 (5th Cir.

2005).   “Erroneous evidentiary rulings by the trial court

constitute reversible error only when those rulings have affected

a party’s substantial rights.”    Kelly v. Boeing Petroleum Servs.,

Inc., 61 F.3d 350, 361 (5th Cir. 1995) (footnote and citation

omitted).    “An error does not affect substantial rights ‘if the

court is sure, after reviewing the entire record, that the error

did not influence the jury or had but a very slight effect on its

verdict.’”    Id. (footnote and citation omitted).

     The determination whether evidence is relevant depends in

part on what a plaintiff is required to prove in order to make

his case.    In the context of the instant case, a claim that a

police officer used excessive force in the course of a seizure is

analyzed under the Fourth Amendment.     Graham v. Connor, 490 U.S.

386, 395 (1989).    To prove an excessive-use-of-force claim, a

plaintiff must demonstrate (1) an injury, which (2) resulted

directly and solely from the use of force that was clearly

excessive to the need, and the excessiveness of which was

(3) “objectively unreasonable.”    Ikerd v. Blair, 101 F.3d 430,

433-34 (5th Cir. 1996).    Whether the force used was objectively

reasonable is determined according to the facts of each case,

“including the severity of the crime at issue, whether the

suspect poses an immediate threat to the safety of the officers

or others, and whether he is actively resisting arrest or

attempting to evade arrest by flight.”     Graham, 490 U.S. at 396.

     For several reasons, we conclude that the probative value of

the drug-use evidence was not “substantially outweighed by the
                           No. 05-40362
                                -4-

danger of unfair prejudice,” see FED. R. EVID. 403, and that the

district court did not abuse its discretion in admitting the

evidence.   Given the purpose of the search warrant and raid and

the presence of a crack pipe near Rodriguez, there was a

reasonable possibility that Rodriguez’s perceptions may have been

impaired by drug use.   Although Rodriguez is correct in stressing

that the Fourth Amendment standard for excessive-force claims is

an objective one and that the plaintiff’s subjective state of

mind in such a case is not directly relevant to proving such a

claim, the drug-use evidence in the instant case was directly

relevant both to refuting Rodriguez’s testimony that the officers

gave no warnings or commands and to explaining Rodriguez’s

allegedly odd behavior in the face of such warnings and commands.

     Rodriguez has not established that the drug-use evidence

affected his substantial rights.   See Kelly, 61 F.3d at 361.    The

evidence was relevant, and it was supplemented by significant

other evidence connecting him to drugs and drugs sales.

Moreover, defense counsel emphasized that the drug-use evidence

was not being offered to show that Rodriguez was a “bad person,”

and the special-verdict questions submitted to the jury focused

on the conduct and state of mind of defendant Zepeda, not the

actions of Rodriguez.

     For the above stated reasons, we AFFIRM.
