                                                    United States Court of Appeals,

                                                              Fifth Circuit.

                                                              No. 91–5673.

                                                    Ken MOUILLE, et al., Plaintiffs,

                                                   Leroy Liberda, Plaintiff–Appellant,

                                                                    v.

                   The CITY OF LIVE OAK, TEXAS, Mark E. Jackley, Douglas Faesler, and Timothy Britt,
                Defendants–Appellees.

                                                             Nov. 20, 1992.

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

                Before REYNALDO G. GARZA and GARWOOD, Circuit Judges and WERLEIN,** District Judge.

                          REYNALDO G. GARZA, Circuit Judge:

menced suit under 42 U.S.C.the case Britt,useOnOak qualifiedI.immunity. Jackley,grantedofand instructionsLive Oak.
               defendants,we AFFIRM. a tried before a force.whichconstitutional rights the Cityviolated and
               relevantthatagainstdid wasisLive allegingDouglasCircuitappeals verdictremanded Liberda's claims.
               On remand, Britt§ there Mark Jackley,jury,The district courta certain forPolice of Live Oak, by
               ground times, Britt 1983,City Manager.that his rendered the and ofLive Oak, Texas. for all
                                       Oak excessive officer, Faesler, was Faesler, a is were to qualified
               Faesler wasTimothywas defense appeal, the Fifthagainst We find that Brittdirected verdict on the
               reasserts the the Live not
               immunity. affirmative
               Therefore,                                          Jackley and
                                                               FACTS              City          defendants At
               defendants Further, Liberda.insufficient evidenceLiberda reversed Chief jurytheentitledof and Britt
                                                 of police

                          This civil rights action arises out of the events that took place on January 9, 1987, in San

                Antonio, Texas. Late Friday morning, January 9, 1987, Officer Britt observed a blue Corvette

                exceeding the posted speed limit by 27 miles an hour. Britt attempted to stop the vehicle; however,

                a high speed chase ensued on interstate I–35 at speeds in excess of 95 miles per hour. Live Oak

                Police Lieutenant, Gary Hopper, and the police dispatcher maintained radio contact during the chase.

                According to the official log book, at 11:28 A.M. Britt first made radio contact, and reported that

                he was traveling southbound on I–35 pursuing a blue Corvette.

                          The blue Corvette, which was being driven by Kenneth Mouille, exited the highway at

                Walzem Road and hastily pulled into the L & R Associates ("L & R") parking lot. Both Britt and

                Mouille emerged fro m their respective cars, and Britt informed Mouille that he was under arrest.

                Britt's police car was a "marked unit," and he was wearing the distinctive blue police uniform

                emblazoned with a salient badge, silver name tag, and police depart ment emblems. Mouille

                unmistakeably knew that he had been chased by a police car, and that Britt was a police officer.


                   *
                       District Judge of the Southern District of Texas, sitting by designation.
Mouille responded to Britt's attempted arrest with a few expletives, and then bolted into L & R. The

events that transpired inside the L & R offices form the basis of this suit.

        Mouille sped into the building and then into the front office of L & R, shutting the door

behind him. Mouille was yelling as he ran into the office, and the entire commotion stirred up

everyone inside, especially Grace Rollins. Grace Rollins, who is Mouille's mother, is also Liberda's

business partner at L & R, which is an insurance agency.

        Britt did not know what he would encounter when he opened L & R's front door so he had

his nightstick drawn, ready for the unpredictable. Britt threw open the door wi th a great deal of

force, which knocked some plaques off the wall. Rollins immediately interposed herself between Britt

and her son. Britt informed her about the high speed chase, and told that her son was under arrest.

Britt then attempted to handcuff Mouille. Although Mouille pushed and shoved, Officer Britt

eventually managed to handcuff Mouille, despite his uncooperativeness.

        Just after Britt handcuffed Mouille, Leroy Liberda and Laurie Rollins entered the front office.

Liberda and Laurie Rollins audaciously approached Britt to within arm's length, screaming at him.

Britt was faced with a volatile situation and had to make an instinctive decision. He pulled out his

revolver and admonished everyone to back off.

        Liberda contends that Britt shouted expletives, cocked his gun, shoved it in Liberda's neck,

and then threatened to blow his head off. Britt contends that the gun did not touch Liberda. As a

result, Liberda jumped back into a door knob and allegedly suffered debilitating back and leg injuries.1

Simultaneously, Liberda also urinated in his pants. Britt concedes that the sight of the gun caused

Liberda to jump backwards into the door. Approximately three minutes elapsed from the time Britt

entered the office until the time he emerged with Mouille.

        Once outside the building, Britt placed Mouille in the backseat of his patrol car and contacted

headquarters. At 11:36 A.M., Britt informed the dispatcher t hat Mouille was in custody. Two

minutes later, at 11:38 A.M., Britt informed the dispatcher the street address for L & R. Minutes

   1
    Liberda contends that he must elevate his leg in order to alleviate the continuing pain.
Consequently, he is unable to conduct recruiting seminars because he cannot rest his leg. Further,
Liberda contends that the incident caused him embarrassment.
after Mouille was placed in custody, Lieutenant Hopper arrived at L & R. Officer Hopper

interviewed each of the witnesses. By 11:56 A.M., Britt reported that he was en route to pol ice

headquarters with Mouille.

                                          II. PROCEDURE

        Liberda, along with Mouille, Grace Rollins, and Laurie Rollins, filed a Section 1983 action

against the defendants alleging a violation of their fourth amendment rights. The case was tried

before a jury. At the close of plaintiffs' case, each defendant moved for a directed verdict. The

district court dismissed the claims by Liberda, Grace Rollins, and Laurie Rollins. Further, the district

court directed a verdict for Faesler against all claims by Mouille, but denied the directed verdict

motions by Britt, Jackley, and the City of Live Oak.

        Liberda, Grace Rollins, and Laurie Rollins appealed from the adverse determination by the

district court. Subsequently, a panel of this court affirmed the directed verdicts against Grace Rollins

and Laurie Rollins, but reversed the verdict against Liberda, and remanded for a new trial. See

Mouille v. City of Live Oak, 918 F.2d 548, 550 (5th Cir.1990). On remand, the jury, by special

verdict, found that Britt had not used excessive force against Liberda, and the district court entered

judgment for the defendants. Liberda appeals.

                                          III. DISCUSSION

A. Qualified Immunity—Britt

         Britt answers Liberda's Section 1983 claims with the affirmative defense of qualified

immunity. Qualified immunity determinations implicate a multi-faceted framework. This case

represents a procedurally unique setting in which to discuss qualified immunity. Qualified immunity

is normally raised prior to trial at the summary judgment stage. Indeed, the thrust underlying the

affirmative defense of qualified immunity is to allow public officials to avoid timely and exhaustive

litigation. See Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 954

F.2d 1054, 1057 (5th Cir.1992).

        A prior panel of our court has already decided that Britt was not entitled to qualified immunity

following a directed verdict in favor of defendants. See Mouille, 918 F.2d at 551. The Mouille panel
remanded Liberda's claims to the district court where he commenced a second trial—this time around

the defendants were able to introduce their own evidence. Crucial evidence that established Britt was

not entitled to qualified immunity in the first trial was either: (i) ineffectively presented by Liberda;

or (ii) sufficiently eviscerated by the defendants during the second trial.

        In Mouille, the plaint iffs had proven that Britt did not enter the L & R offices until thirty

minutes after Mouille had parked his car.2 The current record is bereft of any evidence upon which

to conclude that thirty minutes elapsed from the time Mouille pulled into the parking lot until the time

Britt burst through the door.3 Therefore, the life blood of the Mouille panel's conclusion: that

Officer Britt's actions were "bizarre and shockingly unreasonable," is emasculated.4 Significantly, the

current record establishes that eight minutes elapsed from Britt's last radio contact during the chase

on I–35 until his next report when Britt informed the dispatcher that Mouille was in custody. The

foregoing merely establishes that we are not bound by the Mouille decision.

        Initially, plaintiff must allege a violation of a clearly established constitutional right. See

Siegert v. Gilley, ––– U.S. ––––, ––––, 111 S.Ct. 1789, 1792, 114 L.Ed.2d 277, 287 (1991). Liberda

alleges that Officer Britt used excessive force against him during the course of Mouille's arrest.

Currently, allegations of excessive use of force implicate the fourth amendment's guarantee of

freedom from unreasonable "seizures." See Graham v. Connor, 490 U.S. 386, 394–95, 109 S.Ct.

1865, 1870–71, 104 L.Ed.2d 443 (1989).5 Liberda's allegations fall under the broad definition of

   2
     Presumably, the plaintiffs were able to establish the thirty minute interval through their own
testimony, and this testimony stood unrebutted on appeal because the directed verdict barred the
defendants from introducing their evidence.
   3
    In the second trial Britt testified that he immediately pursued Mouille into L & R associates.
Further, his testimony was corroborated by the police log. Moreover, Britt's radio broadcasts
were monitored and corroborated by Lieutenant Hopper and the radio dispatcher.
   4
     The Mouille panel concluded that it was bound to construe the record most favorably to
Liberda because the case was appealed following a directed verdict. See Mouille, 918 F.2d at
553. Favorable conclusions in the first appeal included not only the primary determination of the
thirty minute interval, but secondary inferences such as: (i) given the time lag, Britt could have
called for backup; and (ii) there was no exigency or excitement to justify such disruptive pursuit.
   5
    The Supreme Court stated in Graham that excessive use of force claims fall under the fourth
amendment's guarantee of the right "to be secure [from] ... unreasonable ... seizures" of the
person. See Graham, 490 U.S. at 394, 109 S.Ct. at 1871. Further, Chief Justice Rehnquist
"seizure" for fourth amendment purposes.6 However, prior to Graham, the law in this Circuit clearly

held that excessive use of force claims were governed by the substantive due process clause in the

fourteenth amendment. See Shillingford v. Holmes, 634 F.2d 263, 265 (5th Cir.Unit A Jan. 1981).

          Categorization of the precise constitutional rubric violated by excessive force has been

subject to the sands of temporality. Be that as it may, the underlying standard throughout has always

been that qualified immunity operates as a cloaking device from personal liability for police officers

who act in an objectively reasonable manner. See Anderson v. Creighton, 483 U.S. 635, 640, 107

S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). Under Anderson and its progeny, the reasonableness of

action taken must be assessed in light of the "clearly est ablished" law in effect at the time. See

Anderson, 483 U.S. at 639, 107 S.Ct. at 3038; see also Jackson v. Beaumont Police Dep't, 958 F.2d

616, 620 (5th Cir.1992); Pfannstiel v. City of Marion, 918 F.2d 1178, 1184 (5th Cir.1990).

           Approached from a different vantage point: police officers are free to exercise their

discretion as long as they do not trample over clearly established legal rights, See Anderson, 483 U.S.

at 639, 107 S.Ct. at 3038. The rationale behind the "clearly established law" requirement rests on the

notion that police action should not be subject to retroactive application of newly created legal

standards. See Harlow v. Fitzgerald, 457 U.S. 800, 819, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396

(1982).

          Furthermore, the approach is objective in nature so that all officials will conduct their

activities subject to the same standards. Moreover, where clear legal rights are not involved it is

better to have a policy that encourages action, without the fear of Monday morning quarterbacking.

Therefore, even if we conclude, with the benefit of hindsight, that Britt did violate Liberda's



expressly disavowed an approach to excessive force claims under the substantive due process
clause of the fourteenth amendment. See id. at 395, 109 S.Ct. at 1871.
   6
    In Graham, the Supreme Court defined "seizure" under the fourth amendment as a "means of
physical force or show of authority, ... in some way restrain[ing] the liberty of a citizen." See
Graham, 490 U.S. at 395, 109 S.Ct. at 1871 (citing Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct.
1868, 1879 n. 16, 20 L.Ed.2d 889 (1968)). It further required that "all claims that officers have
used excessive force ... in the course of an arrest ... should be analyzed under the fourth
amendment and its "reasonableness' standard, rather than under a "substantive due process'
approach." Id. (emphasis added).
constitutional rights, but we also conclude that a reasonable officer placed in Britt's shoes would have

acted similarly—then Britt is entitled to the protective shroud of qualified immunity. See Duckett v.

City of Cedar Park, 950 F.2d 272, 280 (5th Cir.1992).

       A threshold inquiry into what is "objectively reasonable" must establish the law in effect on

January 9, 1987. Applying the "clearly established law" requirement to the present case points us to

Shillingford. Prior to the Supreme Court's decision in Graham, the controlling legal precedent in this

Circuit held that the substantive due process clause of the fourteenth amendment governed excessive

use of force claims. See Simpson v. Hines, 903 F.2d 400, 403 (5th Cir.1990) (citing Shillingford,

634 F.2d at 265). Shillingford stated:

       If the state officer's action caused severe injury, was grossly disproportionate to the need for
       action under the circumstances and was inspired by malice rather than merely careless or
       unwise excess of zeal so that it amounted to an abuse o f official power that shocks the
       conscience, it should be redressed under Section 1983.

Id.

         The Shillingford decision sets forth a conjunct ive tripartite test to determine the

reasonableness of an officer's actions. The standard has coalesced and can be simply stated: (i) did

the action cause severe injury; (ii) was the action grossly disproportionate to the need for action

under the circumstances; and (iii) did the officer act so maliciously that it would shock the

conscience. See id. Therefore, if any of the three elements of the test are missing, then the plaintiff

has not suffered a violation of constitutional magnitude. This test represents the clearly established

law, which guided law enforcement as of January 9, 1987.

        Applying the standard to the case at hand, we must first place ourselves, as reasonable

officers, in Britt's shoes.    Next, we have to account for Britt's sudden and unexpected

predicament—trying to discount the benefit of hindsight. Certainly, we do not want to hold Britt to

standards higher than what reasonable peers of his would have done under the same circumstances.

       The most relevant prong in the three part inquiry for our purposes is number two: whether

Britt's actions were grossly disproportionate to the need for action. Britt acted reasonably when he

chased Mouille into the L & R offices because he was trying to evade arrest. Perhaps Britt may have

opened the office door with less vigor. However, none of the people inside that office were entitled
to interfere with Britt's arrest. Indeed, citizens have no right to intervene in lawful police business.

Further, Liberda's actions were undoubtedly inappropriate. We do not wish to countenance like

behavior in the future.

        When Britt saw Liberda approaching him menacingly—he did not know what Liberda's

intentions were. If he were to passively await the outcome he may have been injured or even worse.

The constitution does not empower private citizens to imperviously interfere with police business.

The jury found that Britt did not use excessive force and we too agree that Britt acted reasonably

when he attempted to quell a volatile situation under rapidly evolving and unpredictable

circumstances. Therefore, Britt's actions were not grossly disproportionate to the need for action.

        Secondly, we focus on the third prong of Shillingford and consider whether Britt acted so

maliciously that it shocks the conscience. Objectively, we must analyze Britt's actions, and consider

whether a reasonable officer would use a firearm to protect himself when approached by unknown

individuals during the course of an arrest. We conclude that Officer Britt's actions were objectively

reasonable and not excessive, given the circumstances. Indeed, they do not shock the conscience.

        The severe injury prong of Shillingford need not be addressed. In fact, the jury below was

charged on the basis of significant injury. To be sure, the law on excessive force claims, as it

currently stands in this Circuit, requires that plaintiffs must prove significant injury. See Johnson v.

Morel, 876 F.2d 477, 480 (5th Cir.1989) (en banc) (per curiam). The Johnson holding has been

called into doubt by Hudson v. McMillian, ––– U.S. ––––, ––––, 112 S.Ct. 995, 997, 117 L.Ed.2d

156 (1992) (excessive force claim tenable in eighth amendment context even without significant

injury).7 We expressly decline to decide whether Johnson 's vitality has been impaired by Hudson.

Incidently, anything that we say regarding Johnson would be dicta for two reasons: (i) because we

find that Britt is entitled to qualified immunity under Shillingford 's second and third prongs, we need

not address the first prong; and (2) Britt is not bound by legal developments, which occurred after


   7
    Two recent Fifth Circuit cases have recognized the tension between Johnson and Hudson.
See King v. Chide, 974 F.2d 653, 657 (5th Cir.1992); Knight v. Caldwell, 970 F.2d 1430, 1432
(5th Cir.1992). However, both cases declined to decide whether Hudson in fact impugned
Johnson.
1987.

B. Jackley and Faesler

        Well settled Section 1983 jurisprudence establishes that supervisory officials cannot be held

vicariously liable for their subordinates' actions. See Monell v. Department of Social Services, 436

U.S. 658, 691–95, 98 S.Ct. 2018, 2036–38, 56 L.Ed.2d 611 (1978); Thibodeaux v. Arceneaux, 768

F.2d 737, 739 (5th Cir.1985) (per curiam). Supervisory officials may be held liable only if: (i) they

affirmatively participate in acts that cause constitutional deprivation;             or (ii) implement

unconstitutional policies that causally result in plaintiff's injury. See Thompkins v. Belt, 828 F.2d 298,

303 (5th Cir.1987); see also Grandstaff v. City of Borger, 767 F.2d 161, 169–70 (5th Cir.1985),

cert. denied, 480 U.S. 916, 107 S.Ct. 1369, 94 L.Ed.2d 686 (1987). We find a dearth of evidence

in the record, and conclude that Liberda has failed to substantiate allegations as to any

unconstitutional policies.

C. City of Live Oak

        Municipalities can be held vicariously liable for the actions of their employees. See City of

Canton v. Harris, 489 U.S. 378, 395, 109 S.Ct. 1197, 1208, 103 L.Ed.2d 412 (1989). Inadequate

police training may serve as a predicate for Section 1983 liability only where it amounts to deliberate

indifference to constitutional rights. Id. at 379, 109 S.Ct. at 1199. Again, Liberda has failed to make

out a case against the municipality.

D. Failure to submit Liberda's interrogatories

        Because we find that Britt is entitled to qualified immunity and we find no evidence against

Jackley, Faesler, and the City of Live Oak—we find both the interrogatories that were submitted and

the interrogatories that were excluded to be superfluous. Any error with regard to interrogatories

is entirely subsumed within our finding of qualified immunity.

E. District court's failure to submit a letter from Live Oak's City Manager Faesler to Police Chief
        Jackley.

        Liberda contends that the trial court erred in excluding a letter written by Faesler, dated April

13, 1988, which proposed that Jackley resign from his job as police chief. Liberda contends that the

letter was relevant to proving a causal link between municipal policy and Britt's excessive use of
force. The letter alleges that Jackley: (i) mishandled evidence; (ii) improperly seized pornography

for personal use; (iii) engaged in voyeuristic behavior with a cadaver; (iv) "mooned" subordinate

officers; (v) pulled down an officer's pants during a party; (vi) trespassed on private property; (vii)

improperly seized and mishandled narcotics; and (viii) shot at animals. While the letter does set forth

exceedingly embarrassing allegations about Jackley, it does not prove that Live Oak police officers

received inadequat e training. We find that the exclusion of this evidence was well within the

discretion of the trial court.

                                         IV. CONCLUSION

        Officer Britt is entitled to qualified immunity primarily because he did not use disproportionate

force under the circumstances. Therefore, although Britt was not entitled to qualified immunity in

Mouille he was able to refute the unchallenged allegations of Liberda the second time around. We

hold that Britt proved his actions were immune. Liberda failed to make out a case against Faesler,

Jackley, and the City of Live Oak. Consequently , the jury instructions drop out of the picture

altogether because our finding of qualified immunity renders them meaningless. Further, the

exclusion of the letter was entirely within the discretion of the trial court. AFFIRMED.
