                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS        December 17, 2003
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                           No. 03-60034
                         Summary Calendar


WILLIE M. BROWN,

                                    Plaintiff-Appellant,

versus

CITY OF MCCOMB MISSISSIPPI POLICE DEPARTMENT; SHANNON
SULLIVAN, individually and in his official capacity as a
policeman; KENNETH BAPTIST, individually and in his official
capacity as a policeman; CITY OF MCCOMB MISSISSIPPI

                                    Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
            for the Southern District of Mississippi
                      USDC No. 3:00-CV-593
                      --------------------

Before KING, Chief Judge, and DAVIS and BARKSDALE, Circuit
Judges.

PER CURIAM:*

     Plaintiff Willie M. Brown appeals bench and jury verdicts in

favor of the defendants in his action brought under the

Mississippi Tort Claims Act (MTCA) and 42 U.S.C. § 1983.        The

jury decided against Brown on the Fourth Amendment excessive-

force claim brought under 42 U.S.C. § 1983, and the district

court decided against him on the MTCA claims.   The court also

     *
        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that this opinion should not be published and is not precedent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. 03-60034
                                 -2-

denied Brown’s timely motion for judgment as a matter of law

(JML) or a new trial.   The claims arise from Brown’s arrest

following an 11-mile pursuit and an altercation in Brown’s

driveway during which Brown suffered a serious eye injury.

     Brown contends that the district court erred by denying his

motion for JML or a new trial, particularly in light of the

jury’s inconsistent responses to special interrogatories.    The

jury answered its first interrogatory by determining that Brown

did not resist arrest after he stopped his car in his driveway.

The jury nonetheless concluded that the arresting officers did

not use excessive force in making the arrest, even though Brown

was injured.

     When reviewing apparently inconsistent jury answers to

special interrogatories, we “must attempt to reconcile the jury’s

findings, by exegesis, if necessary, before we are free to

disregard the jury’s verdict.”   Ellis v. Weasler Engineering, 258

F.3d 326, 343 (5th Cir. 2001) (internal quotations and citation

omitted).   We “view the evidence in the light most favorable to

upholding the jury’s decision by a finding of consistency.”    Id.

In addition to examining the jury interrogatories, the reviewing

court must consider the court’s instructions to the jury.

Alverez v. J. Ray McDermott & Co., 674 F.2d 1037, 1040 (5th Cir.

1982) (citation omitted).

     In light of the interrogatories, the court’s instruction on

excessive force, the lack of an instruction on resisting arrest,
                            No. 03-60034
                                 -3-

and the circumstances surrounding the incident, we view the

jury’s answers as reconcilable.    The jury evidently determined

that any use of force by the officers was not excessive due to

their reasonable belief that Brown was attempting to resist them

or to flee, as he had done during the 11-mile pursuit.     This is

likely even if the jury may have concluded that Brown’s actions

in the driveway did not constitute resisting arrest in some

particular legal sense.   The jury’s verdict need not be set aside

as inconsistent.   See Ellis, 258 F.3d at 343.

     We review the denial of Brown’s motion for JML de novo,

viewing all evidence in the light most favorable to the

defendants.   See Burroughs v. FPP Operating Partners, 28 F.3d

543, 546 (5th Cir. 1994).   The jury had a reasonable evidentiary

basis for concluding that the officers reasonably perceived a

threat from Brown and responded without excessive force.     Brown

fails to show that “the evidence at trial points so strongly and

overwhelmingly in [his] favor that reasonable jurors could not

reach a contrary conclusion.”     See Omnitech Int’l v. Clorox Co.,

11 F.3d 1316, 1323 (5th Cir. 1994).

     Brown is not entitled to a new trial unless the verdict was

against the great weight of the evidence as viewed in the light

most favorable to the jury’s verdict.      See Dawson v. Wal-Mart

Stores, Inc., 978 F.2d 205, 208 (5th Cir. 1992).     There was ample

evidence to support the jury’s conclusion that the officers did

not use excessive force under the circumstances.     Therefore the
                              No. 03-60034
                                   -4-

district court did not abuse its discretion by denying the new

trial motion.     See id.

     Brown contends that the district court abused its discretion

by not allowing Brown to present testimony about two past

incidents involving allegations of the officers’ use of excessive

force.   He argues that the evidence was relevant to showing that

the city of McComb had a policy or custom of condoning excessive

force.   Were we to assume that the exclusion of the evidence was

erroneous, there could nonetheless be no municipal liability

because the jury found no underlying excessive-force

constitutional violation.      See Becerra v. Asher, 105 F.3d 1042,

1047-48 (5th Cir. 1997).     Thus, any error in excluding the

evidence could not have affected Brown’s substantial rights and

was therefore harmless.      See Polanco v. City of Austin, Tex., 78

F.3d 968, 982 (5th Cir. 1996).

     Brown argues that the evidence was contrary to the district

court’s conclusion that the officers did not act with “reckless

disregard” for Brown’s safety as required to incur liability

under the MTCA.     See MISS. CODE. ANN. § 11-46-9(1)(c).   Under

Mississippi case law, “‘reckless disregard’ embraces willful or

wanton conduct which requires knowingly and intentionally doing a

thing or wrongful act.”      Maye v. Pearl River County, 758 So. 2d

391, 394 (Miss. 1999).      The record contains evidence to support

the district court’s apparent conclusion that Brown’s injury

likely was the result of negligence or an accident rather than
                           No. 03-60034
                                -5-

the wanton use of force.   Brown fails to show that the district

court’s factual finding was clearly erroneous, and he therefore

is not entitled to reversal on the MTCA claims.   See Williams v.

Kaufman County, 343 F.3d 689, 696 (5th Cir. 2003) (reviewing for

clear error).

     Brown contends for the first time on appeal that MISS. CODE.

ANN. § 11-46-9(1)(c) is unconstitutional because it gives police

unlimited power to use excessive force in disregard of the Fourth

Amendment.   This court need not consider the issue because no

miscarriage of justice will result if we do not; the MTCA plainly

had no effect on Brown’s ability to assert and bring to trial his

Fourth Amendment claim under 42 U.S.C. § 1983.    See North Alamo

Water Supply Corp. v. City of San Juan, Tex., 90 F.3d 910, 916

(5th Cir. 1996).

     The judgment of the district court is AFFIRMED.
