                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                                 F I L E D
                    UNITED STATES COURT OF APPEALS                March 9, 2004
                         FOR THE FIFTH CIRCUIT
                                                              Charles R. Fulbruge III
                                                                      Clerk

                              No. 01-20881



ARLEEN MADDUX,ET AL,                                          Plaintiffs,

ARLEEN MADDUX,                                   Plaintiff-Appellant,


versus


OFFICER ONE; ET AL,                                           Defendants,

CITY OF PASADENA,                                 Defendant-Appellee.



           Appeal from the United States District Court
                For the Southern District of Texas
                           (H-99-CV-855)


BEFORE WIENER and      BARKSDALE,   Circuit   Judges,   and    FURGESON,*
District Judge.

FURGESON, District Judge:**

     Whether to grant a judgment as a matter of law in a civil

rights jury trial can present unique challenges for any district

court.   Such was the case for the trial judge in this appeal.            We

conclude that the learned court below erred when it granted the


     * United States District Judge for the Western District of
Texas, sitting by designation.

     ** 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this opinion should not be published and is not precedent except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.
motion and we thus reverse.

     Appellant Arleen Maddux’s claim under 42 U.S.C. § 1983 is

premised on an alleged violation of her Fourth Amendment rights.

She alleges that City of Pasadena (“City”) police officers entered

her home intent upon executing a felony arrest warrant, the subject

of which was reasonably believed to be in her residence or that of

a   nearby   neighbor,     in   the   absence    of    consent,    exigent

circumstances,   or   a   search   warrant.     She   contends    that   the

officers’ entry contravened the United States Supreme Court’s

holding in Steagald v. United States1 that absent consent, exigent


     1 451 U.S. 204 (1983). Petitioner Gary Steagald was indicted on
federal drug charges after Drug Enforcement Administration agents
discovered cocaine in Steagald’s house during their search for the
subject of an outstanding felony arrest warrant. A confidential
informant tipped off the agents that the subject of the warrant could
be reached at the phone number matching that belonging to the Steagald
residence.   DEA agents entered the Steagald residence without the
consent of the individual who answered the door and searched for the
subject of the warrant. DEA agents conducted a second search, which
revealed additional incriminating evidence. It was after securing a
search warrant for still another search that DEA agents found the
cocaine. Steagald moved to suppress all evidence uncovered during the
searches, because the DEA agents had failed to obtain a search warrant
before entering the house. The district court denied the motion. A
divided panel of judges of this Circuit affirmed, in reliance on a
previous decision, finding that it was unnecessary for an officer to
obtain a search warrant to enter a third-party premises to arrest the
subject of an arrest warrant, so long as the warrant was valid and the
officer had a reasonable belief that the subject was within the third-
party premises. United States v. Cravero, 545 F.2d 406, 421 (1976),
cert. denied, 430 U.S. 983 (1977). The search at issue in Steagald had
taken place in the absence of either consent or exigent circumstances,
leaving the Court to determine whether the arrest warrant alone was
adequate to protect the Fourth Amendment interests of the third party
whose home DEA agents had entered to search for the subject of the
arrest warrant. Justice Marshall, writing for the majority, held that
“in order to render the instant search reasonable under the Fourth
Amendment, a search warrant was required.” Steagald, 451 U.S. at 222.
In doing so, the majority weighed the additional burden on law
enforcement officers attendant to a warrant requirement against the

                                   -2-
circumstances, or a search warrant, law enforcement officers may

not, consistent with the Fourth Amendment, enter a third-party

residence to apprehend the subject of an arrest warrant.

                       I.   Facts and Proceedings

     A.   Facts

     Maddux, and other Plaintiffs not joining in this appeal,

brought suit against the City and eight of its police officers,

alleging various federal- and state-law causes of action arising

out of City officers’ execution of a valid felony arrest warrant on

June 3, 1998.     A confidential informant had advised officers that

the subject of an outstanding felony arrest warrant could be found

at his residence, 2635 Goldenrod in Pasadena.         Arleen Maddux and

her husband, James Maddux, lived in a neighboring house at 2631

Goldenrod. Acting on the information furnished by the confidential

informant,   an   officer   surveilled   2635   Goldenrod,   as   well   as

surrounding houses on the block, including the Maddux residence,

before deciding to execute the felony arrest warrant.        At the time

the officers converged on the 2600 block of Goldenrod to apprehend

the subject of the felony arrest warrant, Maddux, her husband, and

their son, who also resided with them, were hosting a backyard

barbecue with several friends in attendance.

     The parties have throughout offered fundamentally different



“right protected–that of presumptively innocent people to be secure in
their homes from unjustified forcible intrusions by the Government,” and
found that the balance favored the latter.

                                   -3-
accounts of the ensuing events.       According to Maddux, as she stood

in the laundry room of her residence, she was suddenly confronted

by an unknown individual who entered without consent, pointed a gun

at her, and demanded to know who was inside her house.                Maddux

claims that the individual failed to identify himself as a police

officer and that she assumed that he was an armed intruder.                She

believed that her safety, and that of the other individuals in the

house,   was    in   jeopardy.   Maddux    was    unable     to   answer   the

individual’s question and continued to stand in her laundry room,

describing her demeanor as “totally shocked,” “thinking ‘I’m never

going to make it.’”       She alleges that the individual pushed her

aside and encountered a guest whom he led at gunpoint to the

backyard of the Maddux residence where others were also being

detained   by    other   officers.    Maddux     maintains    that   certain

individuals overheard a police radio transmission advising officers

that the subject of the felony arrest warrant was in fact at the

“corner” house, 2635 Goldenrod.

     It was Plaintiffs’, and is now Maddux’s, theory that City

officers thought, based on the surveillance that afternoon, that

the suspect would be found at either 2635 or 2631 Goldenrod.

Acting on that information, Maddux alleges that the officers

intended to, and in fact did, enter both residences without a

search warrant. Officers testifying at trial admitted that exigent

circumstances were lacking.      Maddux contends that City officers

entered her residence without consent because they believed, in

                                     -4-
accordance with their knowledge and familiarity with the Pasadena

Police Department’s Rules and Procedures Manual, that they were

authorized to do so inasmuch as available information placed the

subject at one of the two residences.

     In contrast, the City contends that when officers arrived at

the neighborhood, they observed several individuals in the backyard

of the Maddux residence, and that a radio transmission advised that

the subject of the felony arrest warrant might be among the

individuals mingling in that group.   The City alleges that, before

officers located the subject of the felony arrest warrant, the City

alleges that two officers proceeded to the backyard of the Maddux

residence to secure the surrounding area in consideration of the

safety of the neighbors and the officers involved.        Officers

reportedly instructed those present to move either inside the house

or to the front of the house out of harm’s way.     Other officers

then requested and obtained consent to enter 2635 Goldenrod, where

they located the subject and took him into custody.

     B.   Pre-Trial Disposition and Motion for Judgment as a
          Matter of Law

     The City moved for summary judgment on Plaintiffs’ claim

brought pursuant to § 1983. Plaintiffs argued that the City Police

Department’s written policy, found in its Rules and Procedures

Manual, authorized officers to execute felony arrest warrants on a

private residence, where the subject in fact does not reside but is




                               -5-
nevertheless believed to be, in violation of Steagald.2          The City

defended the constitutionality of its written policy and attested

to   its   “long-standing   custom    and   practice”   of   training   and

requiring officers to obtain consent before entering any residence

for purposes of executing a felony arrest warrant. The district

court denied summary judgment, citing the factual issues created by

“the parties’ radically conflicting accounts of the actual events

occurring on June 3, 1998 at the Maddux residence.”

      The case proceeded to a jury trial, and at the close of

Plaintiffs’ case, the City orally moved for judgment as a matter of

law, on the grounds that Plaintiffs failed to demonstrate that the

City espoused an official policy or custom allowing officers to

execute arrest warrants in violation of the Constitution or laws of

the United States.    The City asserted, to the contrary, that its

practice and custom was to abide by the Constitution and laws of

the United States, as evinced both in its written policy and in its

practice of securing consent before executing a felony arrest

warrant at a third-party residence.         According to the City, even

taking as true Plaintiffs’ allegations that one or more officers

entered the Maddux residence in the absence of one of the Steagald

exceptions (consent, exigent circumstances, or a search warrant),

such conduct was in contravention of the City’s official policy.

      The City cited as an additional justification for granting


     2 The relevant passage, section 90.06 of the Rules and Procedures
Manual, is quoted in full and discussed in greater depth in Section V.

                                     -6-
judgment in its favor Plaintiffs’ inability to identify the officer

alleged to have entered the Maddux residence.           The district court

did not reach this argument.

     Plaintiffs countered that, in the twenty years since Steagald,

the section of the Rules and Procedures Manual pertaining to the

execution of arrest warrants had not been modified to instruct law

enforcement   officers    of   the   steps   that     are   constitutionally

required to search a third party’s residence for the subject of an

arrest warrant. Plaintiffs repeatedly characterized the City’s

written policy as affirmatively unconstitutional in attempting to

persuade the district court that the instructions with regard to

execution of arrest warrants in the Rules and Procedures Manual

were the “moving force” behind the officers’ violation of their

Fourth Amendment rights.

     C.   The District Court’s Grant of Judgment as a Matter of Law

     In publishing its ruling from the bench, the district court

made two findings, either of which would have been decisive of the

Rule 50 motion.

     First, even accepting as true Plaintiffs’ version of the

events,   i.e.,   that   the   officers    actually    entered   the   Maddux

residence, the district court was persuaded that the officers had

not acted intentionally. Rather, they had accidentally entered the

Maddux residence in the mistaken belief that the subject of the

arrest warrant would be found at 2631 Goldenrod. The officers’


                                     -7-
negligent violation of Plaintiffs’ constitutional rights would not,

according to the district court, be cognizable in a § 1983 claim.

The district court raised this issue sua sponte; the City did not

argue the absence of a constitutional deprivation as a basis for

its Rule 50 motion.

       Under   the     twin     assumptions    that    the   officers      had   (1)

intentionally (2) entered the Maddux residence, the district court

then addressed the City’s contention that Plaintiffs had failed to

demonstrate that the City, by means of an official policy, was

responsible      for     the        alleged    deprivation     of    Plaintiffs’

constitutional rights. In doing so, the district court shifted its

focus to the quantum of evidence adduced to show that an official

policy or custom was the impetus for the deprivation of Plaintiffs’

constitutionally-protected rights.               The issue then before the

district court was whether the officers, in entering the Maddux

residence in the absence of the Steagald exceptions, acted in

accordance with a policy officially adopted and promulgated by the

City   with    deliberate       indifference     to    the   known   and   obvious

consequence      that         the    policy    could     subvert     Plaintiffs’

constitutional rights.

       With regard to evidence presented, the district court found

that the City’s official policy was to train and require its

officers to obtain consent before entering a residence of a third

party to execute a felony arrest warrant.               In the judgment of the


                                         -8-
district court, if consent was required as a matter of course in

every instance in which an arrest warrant was to be executed, as

the City maintained that it was, then the City’s custom and

practice could not be interpreted as running afoul of the Fourth

Amendment.       The City, according to the district court, relied upon

“one of three methods that the officers could employ and still be

in   compliance     with    the    constitutional      requirements      of    .    . .

executing an arrest warrant at the home of a third party, which is

consent, exigent circumstances, or a search warrant.” The district

court commended this custom the City had in place as having been

“designed    to    assure    that      constitutional     violations     would      not

result.”

      The district court reasoned that with this policy in place

Plaintiffs were unable to show that the City acted intentionally to

deprive them of their right under the Fourth Amendment to be free

from an unreasonable search of their home.                       In the perceived

absence of any evidence of a policy statement, custom, or practice

enacted     by     the     City    in     deliberate      indifference        to     the

constitutional       rights       of    its   citizens,    the    district         court

determined that the issue of municipal liability under § 1983 could

not proceed to the jury.

      The record indicates that the assistant chief of police, and

those officers who had been called by the Plaintiffs as adverse

witnesses, were avowedly unaware that a United States Supreme Court

opinion had distinguished the privacy interests with which law

                                          -9-
enforcement officers had to contend in executing arrest warrants.

But the   district   court     found   that    the   City’s   dereliction    in

altering its Rules and Procedures Manual, so as to reflect the

distinctions made in Steagald, fell short of the necessary showing

of deliberate indifference. She noted, “the fact that they were

negligent in not understanding or training or explaining to their

officers that an additional method of assuring that constitutional

violations would not result in the securing of a search warrant,

does not result in municipal liability.”

      Thus, the district court held that if the officers in fact

acted in violation of the City’s policy, the negligence of those

officers could not be attributed to the City under a theory of

respondeat superior.    The United States Supreme Court indeed has

consistently rejected arguments for imposing vicarious liability on

municipalities for the actions of their employees under § 1983

since its decision in Monell v. Department of Social Services.3

      Although Plaintiffs argued that the written policy regarding

the   planned   execution    of   arrest      warrants   in   the   Rules   and

Procedures Manual was affirmatively unconstitutional, the district

court insisted that the City trained officers to get consent first.

In fact, the district court’s scrutiny of the language in the Rules

and Procedures Manual was confined to its assessment that the

written policy did not, by omission or otherwise, convey that a


      3 436 U.S. 658 (1978).

                                   -10-
search warrant was not required to enter a third-party residence.

     In conclusion, the district court noted the absence of any

“legally sufficient evidentiary basis for a jury to find for any of

the plaintiffs with respect to the allegations in the lawsuit.”

The district court then proceeded to grant the motion for judgment

as a matter of law in favor of the City as to all Plaintiffs, and

to dismiss the jury.

     II.   Standard of Review of Judgment as a Matter of Law

     On appeal, Maddux broadly phrases the issue as whether the

City is liable for the conduct of its officers in entering the

Maddux residence in the absence of the Steagald exceptions, in

light of the Pasadena Police Department’s Rules and Procedures

Manual’s seeming endorsement of such unconstitutional measures.

Specifically, Maddux takes issue with the district court’s two

dispositive   findings:   (1)   that   the   officers   did   not   act

intentionally, if at all, and (2) that the City’s official policy

was to require and train its officers to get consent before

entering all private premises to execute felony arrest warrants.

     Federal Rule of Civil Procedure 50(a)(1) permits a district

court during a jury trial to enter judgment as a matter of law

against a party with respect to a claim or a defense, but only if

that party “has been fully heard on an issue and there is no

legally sufficient evidentiary basis for a reasonable jury to find




                                -11-
for that party on that issue.”4          We review de novo a district-court

ruling on a motion for judgment as a matter of law. 5                 Thus, like

the district court, we must review the record as a whole, taking

care to draw all reasonable inferences in favor of the nonmoving

party and to abstain from making credibility determinations or

weighing the evidence presented to us.            Likewise, as to evidence

supporting the moving party, we must credit only that which is

uncontradicted,      unimpeached,    and    unattributable       to   interested

witnesses.6

     Judgment as a matter of law is appropriate only in the rare

instance in which the facts and inferences favor one party so

profoundly    that   reasonable     minds    could   not   disagree.7       When

confronted    with    “evidence     of    such   quality   and    weight    that

reasonable and fair-minded [people] in the exercise of impartial

judgment might reach different conclusions” a district court should

deny the motion for judgment and submit the case to a jury.8                 The


     4 Fed. R. Civ. P. 50(a)(1); see also Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 149 (2000).

     5 Anthony v. Chevron, 284 F.3d 578, 582-83 (5th Cir. 2002).

     6 Phillips ex rel. Phillips,311 F.3d 369, 373 (5th Cir. 2002),
cert. denied, 123 S. Ct. 2274 (2003) (noting that in Reeves, 530 U.S.
at 150-51, the United States Supreme Court had clarified this as the
approach to be taken in granting judgment as a matter of law).

     7 See Piotrowski v. City of Houston, 237 F.3d 567, 576 n.9 (5th
Cir. 2001) (citing Rutherford v. Harris County, 197 F.3d 173, 179 (5th
Cir. 1999)).

     8 Mosley v. Excel Corp., 109 F.3d 1006, 1009 (5th Cir. 1997)
(quoting Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969) (en

                                     -12-
district court should be mindful, that “it is the function of the

jury as the traditional finder of the facts, and not the Court, to

weigh     conflicting     evidence   and   inferences,   and   determine   the

credibility of witnesses.”9

               III.   Section 1983 and Municipal Liability

      Without conferring any substantive rights, § 1983 instead

creates a cause of action against any person who, acting under

color of state law, deprives another of rights, privileges, or

immunities secured by the Constitution or laws of the United

States.10 The United States Supreme Court designated municipalities

as persons to whom § 1983 applies and articulated the standard for

imposition of municipal liability under § 1983 twenty-five years

ago in Monell.11 To establish municipal liability under § 1983 for

the   actions    of   a    governing   body’s   officials,     the   aggrieved

individual must prove that an official policy is responsible for

the claimed deprivation of the federally-protected right that is at

issue.12

      Although official policy is generally to be found in policy

statements, ordinances, regulations, or decisions formally adopted



banc)).

      9 Id.

      10 42 U.S.C. § 1983.

      11 Monell v. Dep’t of Soc. Servs., 436 U.S. 658,         690-91 (1978).

      12 Id.

                                       -13-
and    promulgated     by      the       governing    body     or      individuals      with

policymaking     authority,          a    policy     may   also     be    evinced    in    “a

persistent, widespread practice of city officials or employees . .

. so common and well settled as to constitute a custom that fairly

represents municipal policy.”13                 If the official municipal policy

is    embodied   in   a   custom,         the   governing     body       or   policymaking

individuals must have either actual or constructive knowledge that

such custom prevails.14             Actions not attributable to execution of

an    official   policy,       in     whatever     form,     will      not    subject     the

municipality to liability under § 1983.

       In prosecuting her claim against the City under § 1983,

Maddux, in addition to establishing the predicate violation of the

underlying constitutional right,15 was required to: identify a

municipal policymaker with actual or constructive knowledge of the

policy that was alleged to have caused her injuries; isolate and

present    evidence       of    the       official    policy      of     which   she      was

complaining; and show that her alleged injuries were incurred as a

result of the law enforcement officers’ execution of that official




     13 Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984)
(en banc); see also Bd. of County Comm’rs of Bryan County v. Brown, 520
U.S. 397, 405-07 (1997) (citing Monell, 436 U.S. at 690-910.

       14 Webster, 735 F.2d at 841.

     15 Johnston v. Harris County Flood Control Dist., 869 F.2d 1565,
1573-74 (5th Cir. 1989), cert. denied, 493 U.S. 1019 (1990).

                                            -14-
policy, otherwise referred to as the “moving-force” requirement.16

Thus,    our   decisions      insist    upon   adequate      evidence      of    “both

municipal      culpability     and     causation,”      in   order    to    prevent

imposition     of    liability    founded      on   a   theory   of     respondeat

superior.17

      As long as causation is established, an official policy that

is facially unconstitutional evinces municipal culpability without

more, terminating the inquiry.           In contrast, a facially innocuous

policy    will      support   municipal     culpability       only    if    it     was

promulgated with objective deliberate indifference to the “‘known

or   obvious     consequences’    that    constitutional       violations        would

result.”18     Thus, this Court has previously concluded that as to

each policy to which a plaintiff is pointing in support of her

claim for municipal liability under § 1983, “it must be determined

whether each one is facially constitutional or unconstitutional.”19




     16 Piotrowski v. City of Houston, 237 F.3d 567, 578-80 (5th Cir.
2001)(citing Monell, 436 U.S. at 694); Bennett v. City of Slidell, 728
F.2d 762, 767 (5th Cir. 1984).

     17 Piotrowski, 237 F.3d at 578 n.17, 580 (citing Snyder                        v.
Trepagnier, 142 F.3d 791, 796 (5th Cir. 1998)).

     18 Id. at 579 (quoting Bryan County, 520 U.S. at 407). The burden
for proving deliberate indifference is necessarily high, such that “a
showing of simple or even heightened negligence will not suffice.” Id.
(citing Bryan County, 520 U.S. at 407).

      19 Id. at 579-80.

                                        -15-
                 IV.    Constitutional Deprivation: Negligent
                         Conduct vs. Intentional Conduct

       A.   Finding of Negligent Conduct

       Maddux urges that the district court erred when, without

reaching the issue of municipal liability, it found that Plaintiffs

had failed “to establish that the defendants acted intentionally

with respect to the constitutional rights that they [Plaintiffs]

allege have been violated.” Maddux contends that the district court

impermissibly weighed the evidence and determined the credibility

of   testifying        witnesses     at    trial    when   it   concluded     that    the

officers, if they did in fact enter the Maddux residence, did so by

accident, in the mistaken belief that they were supposed to be in

that   house      and    not   the   one    next    door.       The   district    court

characterized          such    a   scenario    as    “negligence      which      is   not

cognizable as a claim in this case.”

       Maddux suggests why the officers reasonably believed that the

subject     of    the    arrest    warrant    might    be   found     at   the    Maddux

residence and, thus, why at least one officer intentionally entered

the Maddox house looking for the subject of the felony arrest

warrant.         Maddux’s sons, Gary Maddux and Bryan Maddux,20 both

testified that they heard police radio transmissions advising

officers that they were at the “wrong house.”                    Maddux argues that

this testimony, coupled with that of one officer who understood




       20 Only Gary Maddux was present during the alleged entry.

                                           -16-
that the subject of the arrest warrant could be found at either of

the two houses on Goldenrod, or that of another officer who thought

the subject was going to be found in the Maddux residence, supports

the equally logical inference that the officers intended to enter

both residences in an attempt to locate the subject, and that any

reference to the “wrong house” could simply have meant that the

subject had been located at the other of the two residences.

Maddux thus insists that the officers had formed a belief that the

subject was in one of the two residences, and that the ensuing

radio transmissions informing the officers that they were in the

“wrong house” served only to advise that the subject was in fact at

2635 Goldenrod and not the Maddux house.

     The district court deduced otherwise, concluding that the

evidence only supported the finding that the officers were merely

confused about where they were supposed to be.     The transcript of

the trial contains the district court’s observations pursuant to

its ruling:

          Even ignoring all of what the defendant officers
          have to say about the facts as they occurred on
          that day and taken [sic] as true the statements
          that were made by the plaintiffs with respect to
          the actions of the officers, two of the plaintiffs
          testified that while the officer was in the home
          and one while he was outside of the home, that they
          heard   evidence   that     the   officers   had   not
          intentionally but accidentally gone to the wrong
          house, which the Court finds makes it difficult if

                                    -17-
           not impossible, for the plaintiffs to establish
           that   the    acts   of    the     officers   were    committed
           intentionally.
     B.   The Testimony

     Plaintiffs called nine witnesses over the two-day duration of

their case, including several plaintiffs, officers and others

assembled at the time of the incident, and Assistant Police Chief

Cunningham.     A summary of these witnesses’ testimony, with regard

to the issue of whether a predicate constitutional deprivation was

credibly presented, follows.

     Two witnesses are of no assistance in this endeavor.21                     But,

assessments of the credibility of the seven remaining witnesses,

each of whom offered testimony relevant to this issue, would have

enabled   the   jury    to   assess     the    credibility      of    the    various

conflicting statements and to determine whether the officers, if

they did enter the Maddux residence, did so intentionally.

     Bryan Maddux, who arrived as officers were attempting to

locate the subject of the felony arrest warrant, observed officers

in the area surrounding his parents’ house, though not inside the

residence.      Bryan Maddux testified that he overheard a radio

transmission    telling      officers    that    they    were    at    the    “wrong


      21   Arleen Maddux testified that she was shocked and feared for
her life while confronting an unknown, armed individual inside her home.
Maddux claims that she did not know that the individual was an officer,
and she was further unable to identify him from among those officers
present at the scene of the arrest. So, she does not claim to have
knowledge of whether the officers realized they were at the “wrong
house.” Assistant Police Chief Cunningham is also silent on the issue,
as he was not present at the scene.

                                      -18-
address.”

     Dale Oldfield was among the three individuals — Arleen Maddux

and Gary Maddux included — who claimed that while inside the Maddux

residence, he had encountered an unknown individual clad in black

and displaying a gun.22      Oldfield testified that the unknown

individual asked him who he was and whether he knew another named

individual, presumably the subject of the arrest warrant.       After

Oldfield exited the house and walked into the backyard as he had

been instructed to do, he overheard a garbled radio transmission

from which he was unable to distinguish any coherent communication.

But he did note that following the transmission, several of the

officers within his view retreated from the vicinity of the Maddux

residence and converged on the residence at 2635 Goldenrod.

     Maddux’s other son, Gary, was living with his parents at the

time and was home that afternoon.      He testified that the unknown

individual whom he encountered inside the Maddux residence said

nothing to him other than ordering him to go outside to the

backyard.   Gary Maddux complied and, according to him, overheard a

radio transmission informing officers that they were at the “wrong

house.” At that point, Gary Maddux walked back inside his parents’

house without opposition from any officers.

     Lieutenant Michael Jackson, the senior officer at the scene,

offered testimony rife with contradictions.     He testified that it


     22 The district court found that Oldfield had no expectation of
privacy in the Maddux residence, which ruling Oldfield did not appeal.

                                -19-
was his understanding that although a confidential informant had

identified 2635 Goldenrod as the residence where the subject of the

arrest warrant could be located, the officer who conducted the

preliminary surveillance of the neighborhood had observed unknown

individuals traveling back and forth between 2635 Goldenrod and the

Maddux residence at 2631 Goldenrod.   Lieutenant Jackson was among

several officers advised by radio transmission that “there was foot

traffic between the two residences at the time we were in the

area.” He testified that the information he had received indicated

to him that the subject could be “going back and forth between the

backyards of the two [residences] and inside the corner house [2635

Goldenrod].”

     Lieutenant Jackson added later that, upon arrival, he and

Officer Tracy Marshall proceeded to the Maddux backyard, but that

their focus was the residence next door where the subject was

believed to be. On cross-examination, Lieutenant Jackson testified

that it was not the intent of the officers executing the arrest

warrant to enter the Maddux residence.   But in a followup question

referring Lieutenant Jackson to his earlier averments in a sworn

statement, Lieutenant Jackson acknowledged that, at the time, there

was some reason to believe that the subject might be inside the

Maddux residence, because an attempt might have been made to elude

police and traffic between the two residences had been reported.

     Officer Candelari drove the confidential informant to the 2600

block of Goldenrod where the informant identified the house at 2635

                               -20-
Goldenrod as the residence where the subject of the arrest warrant

could be located.        Officer Candelari dropped off the informant and

returned to the area near the 2600 block of Goldenrod to conduct

surveillance of 2635 Goldenrod from a comfortable distance with the

use of binoculars. Significantly, he did not know exactly what the

subject of the warrant looked like; only a bare description of

height, weight, and perhaps hair color had been provided to him.

Officer Candelari testified that during his surveillance, he noted

several   individuals          who   “could    have   possibly   matched      that

description.”     In his radio transmission, he indicated that he saw

“traffic” going between 2635 Goldenrod and 2631 Goldenrod; he did

not say that he had actually seen the subject or that the subject

would only be found at 2635 Goldenrod, the residence identified by

the informant.

     In   an    effort    to    clarify    his   earlier   statement,   Officer

Candelari then testified that, despite using the word “traffic” in

his radio transmission, he had only seen several individuals in an

area between the two houses, not necessarily traveling back and

forth from one to the other.           He testified that he was not certain

what they were doing — only that they were leaving that area

between   the    two     houses,     and   “disappearing    between     the    two

residences.” What is significant is that these officers only heard

what had been related in the radio transmissions without the

benefit of Officer Candelari’s clarification of what he actually

saw. When the other officers converged on the scene to execute the

                                        -21-
felony arrest warrant, Officer Candelari proceeded with them to

2635 Goldenrod, where consent was given to enter and where the

subject was eventually located.             He recalled seeing still other

officers in the front yard of the Maddux residence as well.

       Officer Marshall testified that the information he received in

advance of the operation undertaken to execute the felony arrest

warrant indicated that the subject could be located at one of two

houses,   either   2635   or    2631    Goldenrod.      He   understood   that

individuals had been seen going back and forth between the two

houses, such that officers were uncertain in which house the

subject would ultimately be found.             Officer Marshall and other

officers received this information along with other officers at

what   appears   to   have     been    an   informal   briefing   immediately

preceding their arrival at the scene. Once there, Officer Marshall

proceeded to the Maddux backyard in order to secure the safety of

the people there and to assist in arresting the subject if he was

located in that vicinity. Officer Marshall agreed with Plaintiffs’

counsel during his direct examination that as far as Officer

Marshall was aware, the subject could have been at the Maddux

residence “just as easily as he could have been at the corner

residence [2635 Goldenrod].”          At some point during the time he was

engaged in the backyard of the Maddux residence, Officer Marshall

received a radio transmission informing him that the subject had

been found next door at 2635 Goldenrod.            This is consistent with

the Plaintiffs’ explanation that the “wrong house” message meant

                                       -22-
that the subject of the arrest warrant had been located in the

house next door to the Maddux home.

     Finally,   Officer      Isaac   Villareal    testified   that    before

arriving at the 2600 block of Goldenrod, he had understood that the

subject would be located at the Maddux residence and not the

neighboring residence at 2635 Goldenrod.             He proceeded to the

Maddux residence in the hope of arresting the subject.               Officer

Villareal said that he remained outside the Maddux residence,

questioning individuals in the driveway of the home, until he

received a radio transmission alerting him that the subject was at

the other residence.

     C.   A Question for the Jury

     Officer Villareal is apparently the only witness to have

stated unequivocally that he was operating under the assumption

that the subject would be found at the Maddux residence, rather

than the house next door or either of the houses as related by

Officer   Candelari,   who    conducted     the   surveillance.      Officer

Villareal’s testimony was not developed to an extent that either

the district court or the jury could have determined with any

certainty whether he had actually been told that the subject was

supposedly going to be, or could be, found in the Maddux residence,

i.e., whether he believed that information had been obtained that

the subject was believed to be at a third-party residence at 2631

Goldenrod, or whether he was merely confused about the information


                                     -23-
that    had    been     relayed      during     the    briefing     for   officers

participating in executing the felony arrest warrant.                     Assuming

that one or more officers did enter the Maddux residence, a patent

variance in the testimony as to whether they did so intentionally

was evident even before Officer Villareal testified.

       Bryan and Gary Maddux both reported hearing the same radio

transmission using the words, “wrong house.”                      Neither of them

overhead anything more substantive that might have clarified what

exactly    was   meant    by   the    transmission.         The    district   court

concluded, based on the testimony of these two individuals alone,

that only one meaning could have been assigned: that the officers

who purportedly entered the Maddux residence did not do so on

purpose, but in the mistaken belief that the subject was supposed

to be in the house where the Maddux family resided and not in the

one next door at 2635 Goldenrod.               Implicit in the ruling was the

district      court’s    belief      that     the     officers    involved    never

anticipated that the subject might be located at either house, but

instead had identified one house as the location where the subject

was reasonably expected to be; and that certain officers might have

thought that the Maddux residence was the correct location and

accidentally gone there.

       But the equally reasonable inference — and certainly the one

more favorable to Plaintiffs as non-movants — was that advanced by

Maddux during the Rule 50 arguments at the close of her case and in



                                        -24-
the brief she submitted to this Court.       According to this theory,

which is amply supported in the testimonial evidence, officers

descended on the 2600 block of Goldenrod with information that the

subject could possibly be found at either of the two residences.

Maddux thus argues that they intended to go into both houses

essentially simultaneously to apprehend the subject of the felony

arrest warrant.

     Officer Candelari admitted that he had warned in a radio

transmission relayed to other officers assembling to execute the

arrest warrant that he had seen “traffic” between the two houses.

That he in fact did not see actual travel in and out of the two

residences is irrelevant because the officers relying on his

surveillance were never fully apprised of exactly what he had or

had not seen.     With the exception of Officer Villareal, all of the

officers    who   testified,   including   Lieutenant   Jackson   in   his

supervisory capacity, acknowledged that it was their understanding

from the outset that, based on the surveillance that had been

conducted, the subject could plausibly have been found in either

house.     Officer Marshall in particular conceded that the subject

could have been found in the Maddux residence as easily as in the

residence at 2635 Goldenrod.

     Review of the record under the prescribed standard of review

demonstrates that the district court ruled in favor of the City

based in part on its erroneous conclusion that Plaintiffs had



                                  -25-
presented no legally sufficient evidentiary basis from which a

reasonable jury could have found that the predicate constitutional

violation had been proven.        In this regard, drawing all reasonable

inferences   in   favor    of    Plaintiffs,       and   without    judging     the

credibility of witnesses or weighing their testimony, a fact issue

for jury consideration was presented.23

     A   reasonable       jury    might     have     found   evidence      of     a

constitutional deprivation — that the testimonial evidence and

reasonable   inferences      therefrom      did    not   favor     the   City    so

profoundly that reasonable minds could not disagree.                The meaning

of the radio transmission overheard by Bryan and Gary Maddux is

equivocal,24 but more compelling are the portions of the officers’

testimony categorically endorsing Plaintiffs’ — and now Maddux’s

— argument that both residences were targeted as private premises

in which officers could reasonably expect to find the subject of

the felony arrest warrant.           The district court thus erred in

determining as a matter of law that, even accepting as true

Plaintiffs’ contention that officers entered the Maddux residence

on June 3, 1998, in doing so, they were at most negligent in

transgressing Plaintiffs’ Fourth Amendment rights.


      23 While the district court did not explicitly state that it had
to any extent considered the testimony of the officers called as adverse
witnesses, the testimony had been presented during trial and was
available for consideration.

     24 It is unnecessary for the Court to speculate as to whether the
testimony of these two individuals could, without more, have supported
Plaintiffs’ theory of an intentional act.

                                     -26-
     The evidence adduced as to whether Maddux’s constitutional

rights were intentionally violated created an issue of fact within

the province of the jury.

   V.     Official Policy: Written Policy vs. Unwritten Practice

     A.     Finding by District Court of a Constitutional Policy and
            Practice

     Even    positing      an    intentional   violation    of    Plaintiffs’

constitutional rights, the district court concluded that judgment

as a matter of law was nevertheless proper because Plaintiffs had

not shown that either the City or its policymakers had promulgated

or adopted an official policy with deliberate indifference to the

known or obvious consequences that constitutional violations would

result.     In order to reach that conclusion and grant judgment in

favor of     the   City,   the   district    court   determined   the   City’s

official policy to be one that requires consent to enter as

prerequisite to execution of arrest warrants.

     The district court found that the City had promulgated a

policy designed to avoid constitutional deprivations on the order

alleged by Plaintiffs.          Even if officers had in fact entered the

Maddux residence as part of their efforts to apprehend the subject

of the felony arrest warrant, such entry without the validation of

any of the three Steagald exceptions would only have signified the

officers’ direct violation of the City’s policy. The officers, not

the City, would then be the moving force behind any injuries

sustained by Plaintiffs. Neither Plaintiffs at trial nor Maddux in

                                      -27-
her appeal has disputed that the City’s liability for the claimed

constitutional   violation   cannot   be   derived    from    a    theory   of

respondeat superior.

     Instead, Maddux argues that for twenty years the City has

ignored the United States Supreme Court’s decision in Steagald and

affirmatively    “enacted   and   implemented   a    policy   in    complete

derogation of this decision and the Fourth Amendment.”             According

to Maddux, the district court erred in simply “absolv[ing] the City

of an arrest warrant policy that was in clear violation of the

Fourth Amendment as interpreted in Steagald.”

     The question for this Court is whether the City of Pasadena

Police Department’s written policy respecting the planned execution

of arrest warrants constitutes a legally sufficient evidentiary

basis upon which a reasonable jury could have premised the City’s

liability under § 1983 for a violation of Maddux’s Fourth Amendment

interest in being free from an unreasonable search of her home by

City officers.   More precisely, did the district court dismiss the

jury after making a factual finding that the City’s unwritten

policy trumps its written policy and requires its officers to

obtain permission from a person in authority before executing a

felony arrest warrant at a private residence?           Analysis of this

issue is tangled for reasons evident from our review of the record

in this case.

     To begin with, it cannot be argued that the district court


                                  -28-
decided what the City’s policy for executing arrest warrants

entailed.      Neither the colloquy between the bench and counsel

during arguments on the Rule 50 motion nor the district court’s

recitation of its findings helps us to understand whether or to

what degree the court considered the significance of the City’s

written policy published in the Rules and Procedures Manual.

      The    City    insisted   that    both   its   written     policy     and   its

practice of obtaining consent assured its compliance with the

Constitution and laws of the United States.               In other words, either

source of policy was independently capable of surviving scrutiny

for purposes of ferreting out potential municipal liability.                      The

district court heard this argument without expressing an opinion as

to whether it also thought these two sources of official policy

adhered in equal measure to the Fourth Amendment.                  The court did

state, however, that “[i]f they’ve got a policy that says you’ve

got to get consent, then they don’t have a policy promulgated with

known or obvious consequences that a constitutional violation would

result.”

      Thus, the district court repeatedly characterized the official

policy as one of getting consent, without reconciling the wording

in   the    Rules    and   Procedures   Manual     with    an   unwritten    policy

requiring     that    consent   be     obtained;     without    acknowledging      a

possible infirmity in the wording that was overcome by an unwritten

practice; and without stating that the wording, infirm or not, was



                                        -29-
irrelevant by virtue of that unwritten practice.25

     B.     The Written Policy and Creation of a Fact Issue for the
            Jury

     Whatever the relationship between the written policy and the

unwritten practice, we conclude that it was error for the district

court to find that the evidence adduced at trial led inexorably to

the conclusion that the City’s policy was to train and require its

officers to get consent as a precondition to entering a private

residence in the course of executing an arrest warrant.        That, at

the close of Plaintiffs’ case, the City’s official policy was

benign in all relevant respects was not irrefutable from the

evidence.     Rather, this Court is of the opinion that: (1)the

written policy in the Rules and Procedures Manual was indeed

facially unconstitutional; and (2) the evidence in which the

district court so firmly rooted its finding that the City required

its officers to gain consent before entering a private premises to

execute an arrest warrant is conflicting.        The district court’s

ruling granting judgment in favor of the City as a matter of law

was therefore incorrect.

     To begin with, we shall explain why we have concluded that the



     25 The only manner in which the district court overtly examined the
contents of the written policy was done in reference to the City’s
admitted failure to remain abreast of developments in Fourth Amendment
jurisprudence.    She found that the City’s failure to incorporate
expressly in its Rules and Procedures Manual the United States Supreme
Court’s holding in Steagald and its implications for entering third-
party residences to execute arrest warrants was extremely neglectful but
insufficient to show deliberate indifference.

                                 -30-
written policy is infirm.          It is necessary in doing so to return to

the actual text of the section of the City’s Rules and Procedures

Manual dealing with planned execution of arrest warrants:

            90.06         Planned Execution of [Arrest] Warrants

            A.      A warrant may be served at any time of the day
                    or night.
            B.      The warrant may be served at any place, public
                    or private, where the actor is reasonably
                    believed to be.
            C.      When it is necessary for officers to enter a
                    private premises to execute an arrest warrant,
                    they will, before entering, announce their
                    identity and purpose and demand admittance.
            D.      Announcement of identity and purpose is not
                    necessary when exigent circumstances exist or
                    a felony warrant is executed.
            E.      When   officers   are  refused   entry   after
                    demanding admittance, they may forcibly enter
                    the premises in order to execute a felony
                    warrant and secure the premises.


     Maddux did not premise the City’s liability on either the

global import       of   section    90.06,    or   the   specific   language   in

subsection (E.), which is the portion of the written policy that

this Court finds problematic in light of Steagald.                   Though the

entire Rules and Procedures Manual was admitted into evidence,

Maddux urged below that it was subsection (B.) that by its terms

rendered    the     written   policy    facially      unconstitutional    after

Steagald.

     The Court disagrees.          Section 90.06 must be read as a single,

cohesive, progressive statement of the City Police Department’s

written policy respecting the planned execution of arrest warrants.


                                       -31-
Subsection (A.) establishes that officers are not restricted as to

when an arrest warrant may be executed; an arrest warrant may be

served at any time.    In logical sequence, subsection (B.) adds the

requirement that officers must have a reasonable belief that the

subject will be found at the place referenced in the warrant.

Subsection (C.) then distinguishes the procedure to be followed

when officers reasonably believe that the subject is located at a

private premises:     Officers must identity themselves, explain why

they are at the residence, and seek (demand) consent to enter.

Exceptions to the prescriptive content of subsection (C.) round out

the written policy. Subsection (D.) advises that when exigent

circumstances exist or officers have secured a felony arrest

warrant, the identity and purpose requirements may be dispensed

with.   And, under subsection (E.), officers in possession of a

felony arrest warrant that is to be executed at a private premises

are expressly licensed to effect a forcible entry if consent to

enter is denied.

     It is the second caveat to the general requirements governing

entry of a private premises that is objectionable. Subsection (E.)

permits forcible entry of a private premises without consent,

exigent circumstances, or a search warrant when officers are in

possession of a felony arrest warrant.      But if the subject of a

felony arrest warrant does not actually reside at the private

premises, then an officer’s reasonable belief that the subject may

be found there at the time the warrant is being executed does not

                                 -32-
go far enough to protect the privacy rights of the third-party

owner of the premises.           This is the issue to which the United

States Supreme Court turned its attention in Steagald.

       In   Steagald,     the   Court   reasoned   that    an   arrest   warrant

constitutes only a judicial finding of probable cause to believe

that    the     subject     committed     a    felony     and   a    concomitant

authorization to seize the subject.26           An arrest warrant issues to

protect the subject from an unreasonable seizure.27                 The Court had

already sanctioned reliance on an arrest warrant alone to enter a

person’s home to effect his arrest, having found in that case that

it was “constitutionally reasonable to require him [a person for

whom probable cause of commission of a felony had been established]

to open his doors to the officers of the law.”28

       But if the subject of an arrest warrant is reasonably believed

to be at the home of a third party, as opposed to a public place or

the subject’s home, the limited authority to enter the premises

where the subject is reasonably expected to be is not implicit;

more is required to safeguard the third party’s “privacy interest

in being free from an unreasonable invasion and search of his

home.”29    The arrest warrant, in such circumstances, does not carry



       26 Steagald v. United States, 451 U.S. 204, 213 (1981).

       27 Id.

       28 Payton v. New York, 445 U.S. 573, 602-03 (1980).

       29 Steagald, 451 U.S. at 213.

                                        -33-
with it any derivative authority to deprive the third party of his

privacy interest because the warrant did not issue to protect the

third party from an unreasonable search of his home.   Officers must

justify such a deprivation with additional evidence that the

subject of the arrest warrant is reasonably believed to be in that

third person’s home.30      A judicial officer has to make such a

determination. An officer’s personal determination — “a judicially

untested determination” — that probable cause exists to enter a

third-party residence, in the absence of exigent circumstances, is

“not reliable enough” to justify a search of that private premises

for the subject of an arrest warrant.31       The Court cited many

examples of the “significant potential for abuse” inherent in a

system administered without the benefit of “the detached scrutiny

of a judicial officer.”32

      The holding in Steagald, according to the Court, was dictated

by its earlier reasoning in cases wherein the Court held that, “in

the absence of exigent circumstances . . . judicially untested

determinations are not reliable enough to justify an entry into a

person’s home to arrest him without a warrant, or a search of a

home for objects in the absence of a search warrant.”33   The search


     30 Id. at 214 n.7.

     31 Id. at 213.

     32 Id.

     33 Id. at 213-14 (citing Payton v. New York, 445 U.S. 573 (1980)
and Johnson v. United States, 333 U.S. 10, (1948)).

                                 -34-
of a home for a person should entail no less of an assurance that

every effort has been made to guarantee the reasonableness of that

action on the part of law enforcement.34

     While subsection (E.) of the Rules and Procedures Manual is a

correct statement of the law apposite to law enforcement officers

entering the home of the subject of an arrest warrant in the

reasonable belief that the subject will be found there, it is

unconstitutional as applied to a third-party private premises where

the subject does not live, regardless of any reasonable belief as

to his whereabouts.      Steagald distinguished the two interests at

stake in the latter situation: (1) the suspect’s interest in being

free from an unreasonable seizure, and (2) the third party’s

interest   —   here,   Maddux’s   interest    —   in   being   free   from   an

unreasonable search of her home.35        If no exigent circumstances are

apparent and the third party does not give consent for entry, the

search of a third party’s home for purposes of locating the subject

of a felony arrest warrant is “no more reasonable,” as viewed by

the third party, “than it would have been if conducted in the




     34 Id. at 214 & n.7 (adding that the second clause of the Fourth
Amendment providing that “no Warrants shall issue but upon probable
cause, supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized,” supports
the conclusion that a determination of probable cause to ensure the
reasonableness of the search of a person’s home for an object is equally
necessary when officers are seeking not an object, but another person).

     35 Id. at 216.

                                   -35-
absence of any warrant.”36     The language in subsection (E.) ignores

“the right . . . of presumptively innocent people to be secure in

their    homes    from   unjustified,      forcible   intrusions   by    the

Government.”37 The City’s continued maintenance of a written policy

facially      inconsistent   with   established   constitutional       rights

renders suspect the entirety of the City’s protestations respecting

its purported unwritten policy for execution of arrest warrants.

       The record shows that Maddux pleaded, argued, and then adduced

evidence that (1) the City’s official policy on forcible entry of

a third-party residence to execute an arrest warrant, the subject

of which did not reside there, was memorialized in section 90.06 of

the City Police Department’s Rules and Procedures Manual; (2) the

City    had   every   expectation   that   officers   would   follow    those

published rules and procedures that formed the basis of their

training; (3) the Rules and Procedures Manual is intended to

undergo change to keep pace with evolving law; (4) the Rules and

Procedures Manual had not been amended to comply with Steagald;

(5) the City’s written policy, as embodied in the Rules and

Procedures Manual, was facially unconstitutional in light of this

dereliction; and (6) the City’s argument that an unwritten practice

of training and requiring officers to get consent, even if borne


       36 Id.

     37 Id. at 222 (acknowledging that in weighing this interest with
that of the Government in enforcing its laws, the Fourth Amendment
recognizes that the balance is struck in favor of protections against
unreasonable searches and seizures).

                                    -36-
out by the evidence, does not dismiss, or neutralize the effect of,

the affirmatively unconstitutional written policy.38                 Maddux was

attempting to persuade the jury that officers entered the Maddux

residence in the absence of all of the three Steagald exceptions

and that their actions were sanctioned, as far as they and other

officers with the Pasadena Police Department understood, by the

express terms of section 90.06 in the Rules and Procedures Manual.

       The significance of the entire written policy to Plaintiffs’

case   is   evident   insofar   as   the    full   text   of   the   Rules   and

Procedures Manual is a part of the record, which is replete with

references both to it and section 90.06 respecting the planned

execution of arrest warrants.        Counsel for Plaintiffs consistently

questioned the officers in regard to the prominence of the Rules

and Procedures Manual in the officers’ training and the Police

Department’s expectation that they would familiarize themselves

with, and adhere to, the written policy set forth therein.

       Officers were also asked specific questions about the methods

prescribed for execution of arrest warrants in the Rules and

Procedures Manual.      For example, in questioning Assistant Police

Chief Cunningham, counsel for Plaintiffs asked whether, to his

knowledge, “the manual” drew any distinction between whether the

subject was believed to be at his house or the house of an innocent


      38 For example, counsel for Plaintiffs extensively questioned
Assistant Police Chief Cunningham at trial in regard to promulgation of
the written rules and procedures and the emphasis the Police Department
placed on strict compliance with those provisions.

                                     -37-
third party. Assistant Police Chief Cunningham responded that such

a distinction did not exist in the written policy.39           An almost

identical inquiry had earlier been directed to Officer Marshall,

who replied that no provision of the Rules and Procedures Manual

drew such a distinction.      Officer Villareal was asked the more

explicit question of whether he understood from his reading of “the

whole section [90.06],” that a felony arrest warrant could be

executed at any place, public or private, where the actor is

reasonably believed to be, even though consent is not given and

exigent circumstances are lacking.40

     In analyzing the written policy of the City, we must do so in

the context of the whole.    Thus, to confine our consideration to a

subsection that Maddux finds particularly troublesome, narrowly

examining in a vacuum, a single sentence of section 90.06, would be

inconsistent with generally applicable principles of interpretation

regularly   employed   by   this   Court   in   the   construction   of    a

controlling writing.

     The district court appears not to have discerned the extent to



     39 Assistant Police Chief Cunningham testified, moreover, that he
did not realize until the time his deposition was taken in this case
that the United States Supreme Court had in Steagald made specific
findings with respect to the procedures law enforcement officers must
follow in executing arrest warrants at third-party residences.

      40 With his few preceding questions, counsel for Plaintiffs         had
been attempting to elicit a response to what the witness believed         was
the import of subsections (c) and (d), in addition to (b). Maddux         did
not expressly request that the witness read and interpret subsection      (e)
as well, but in directing the witness to read the whole section,          the
effect is the same.

                                   -38-
which the City’s written policy necessarily ran afoul of the Fourth

Amendment.   City officers’ reliance on a facially unconstitutional

written policy conflicted with the testimony offered to show that

officers were in fact trained and required to secure consent before

executing a felony arrest warrant at a third party’s residence.

The written policy provided a legally sufficient evidentiary basis

from which a reasonable jury could have found that the City’s

official policy was other than what the district court found.   The

jury could have weighed the discrepant evidence regarding the

City’s official policy and reasonably disbelieved the testimony of

certain of the officers regarding an unwritten consent requirement.

     Maddux suggests that the district court “was under the mis-

impression that the policy to seek consent somehow absolved the

City of an arrest warrant policy that was in clear violation of the

Fourth Amendment as interpreted in Steagald.”    But to reiterate,

this Court has found no statement in the record that definitively

tells us the manner in which the district court scrutinized the

written policy.   Moreover, we note that the jury, once confronted

with the evidence of a written policy such as the one at issue

here, alongside evidence of an alleged practice of training and

requiring officers to obtain consent under circumstances akin to

those at issue here, could find in effect that a policy of seeking

consent absolved the City of its problematic written policy. It is

plausible that the jury could believe that, though the written



                                -39-
policy had not been updated to reflect current law, officers were

nevertheless trained in protocol that complied with decisional law

interpreting the extent of the Fourth Amendment protection against

unreasonable searches.

     As a second matter already adverted to, the record also

discloses that the district court overstated the quantity, and most

probably the quality, of the testimony supporting the City’s claim

that,   in        practice,        its   consent     requirement         ensured    the

constitutionality of arrests effected by its officers and any

searches     conducted        in    pursuance      thereof.         In   response   to

Plaintiffs’ attempt to explain that officers entered the Maddux

residence in a manner violative of Steagald and that they did so in

accordance with the training that they had received, the district

court rejected that characterization of the City’s official policy

by stating:

             Every bit of evidence is that they [the officers]
             were trained to get consent. . . . [Y]ou’ve got a
             policy in place that, in essence, complies with the
             constitutional          requirements     that    are    applicable
             here, because they have advised their officers to
             get consent.41

             C.     The Testimony

     This Court has found notable instances in the trial testimony


     41 The district court granted judgment for City as a matter of law
based in part on a finding that the City’s official policy requiring
consent was “designed to assure constitutional violations would not
result.”

                                          -40-
in which it was not at all clear whether at the time of the events

underlying this case certain officers had received training in

regard    to,    or   otherwise      knew    of,    the    overarching     consent

requirement      advanced     by    the   City.      Assistant    Police     Chief

Cunningham testified unequivocally that throughout his tenure with

the Pasadena Police Department, the policy had been to obtain

“permission by a person in authority” before entering a private

residence to execute a felony arrest warrant, but his statements

were   not   corroborated      in    a    consistent,      coherent    fashion    by

testimony     elicited      from    the   four     other   officers     called    by

Plaintiffs as adverse witnesses.

       For example, Officer Marshall testified that, at the time he

assisted in executing the felony arrest warrant, he understood he

would have needed consent to enter a third-party residence, in the

absence of a search warrant or exigent circumstances.                  Counsel for

Maddux   later    used   Officer     Marshall’s      deposition       testimony   to

impeach his trial testimony:

             Q. Okay.    And then were you asked: “. . . Since
             everyone is saying they did not go into the Maddux
             residence, my question to you is, even though you
             say you didn’t go into the Maddux residence, was it
             your understanding that you had the authority to go
             into the Maddux residence had you wanted to do so?”
                         And your answer?
             A. “That did not cross my mind at the time I was
             going in the backyard.”
             Q. Next question.       “As we sit here today, is it your

                                     -41-
            understanding that you would have had the authority
            to enter the Maddux residence because you had a
            felony arrest warrant for [the subject of the felony
            arrest warrant]?”
                        What was your answer?
            A. “If the suspect was inside that residence.”
            Q. Were you then asked: “So it’s your understanding
            that if the suspect is in the residence and you have
            a felony arrest warrant for that suspect, then you
            have the authority to go into that residence to
            arrest that suspect?”       What’s your answer?
            A. “If the suspect is there.”
      In an exchange following the impeachment, Officer Marshall

testified   that     without   consent,    a    search   warrant   or   exigent

circumstances, he could not enter a residence where the subject of

an arrest warrant was reasonably believed to be.

      Likewise, Officer Villareal’s answers to similar questions

were confusing and seemingly inconclusive.             On direct examination,

he testified thus:

            Q. What were you trained?
            A. In order to execute a search warrant–I mean, an
            arrest warrant, a felony arrest warrant, we have to
            obtain consent prior to going in that house.
            Q. What if you don’t obtain consent?
            A. Then I’m not going into that house.
            Q. You didn’t know that at the time your deposition
            was taken, did you?
            A. I don’t know that that question was even asked.
            I don’t remember.
In   reading   the    relevant   portion       of   Officer   Villareal’s


                                 -42-
deposition for the jury thereafter, the following occurred:

          Q. “Let’s put us back at the police academy; okay?

          And you’ve got an arrest warrant for suspect A and

          suspect A is not in suspect A’s house, he’s in B’s

          house.   Does it make any difference to you in

          executing that warrant whether suspect A is in his

          own house or whether he’s in B’s house?”

          What’s your answer?
          A. “It’s a felony warrant. No.”
          Q. Okay. Isn’t it true that on May 22nd, 2000, your
          understanding   is   that   you   had   a   felony   arrest
          warrant and didn’t make any difference whether he
          was in his own house or an innocent third party’s
          house?
          A. Correct.
          Q. You’ve found out since your deposition that
          that’s not the way it works; correct?
          A. Correct.
          Q.   But the way that you were trained by the City
          of Pasadena is consistent with what you’ve said in
          the deposition, that it didn’t make any difference
          which house; correct?
          A. Not according to the rules manual, yes.
          Q. And according to the way you were trained at the
          police academy; correct?
          A. Correct.
          Q. You also testified in your deposition, did you
          not, that the arrest warrant alone gave you the
          right to enter the Maddux residence to arrest [the
          subject of the felony arrest warrant]?


                               -43-
              A. If I remember correctly, that question I replied
              was I never went inside the Maddux residence.
              Q. Correct.       And I understand that, but the,
              hypothetically, that arrest warrant gave you the
              authority to enter the Maddux residence to arrest
              [the subject of the felony arrest warrant].         It gave
              you that authority even though you never went in the
              house.    Isn’t that what you’ve testified to at your
              deposition?
              A. Yes.
      During the subsequent cross-examination, Officer Villareal

testified that the City’s official policy on executing felony

arrest warrants was to obtain consent to enter a residence, that he

“always practiced that policy,” that this comported with the

training he had received, and that he had never been denied consent

to enter a residence.

      Finally, in one of the last series of questions asked of

Officer Villareal on redirect, he was asked to read section 90.06

and answer whether it was his understanding from that section that

a felony arrest warrant could be executed “at any place, public or

private, where the actor is reasonably believed to be, even if you

do   not   have     consent      and   even   if   there    are   not   exigent

circumstances.”         He indicated that this was his understanding of

the Rules and Procedures Manual, and further, that this was the way

he had been trained “prior to this incident.”

      Officer Villareal’s testimony is, in sum, puzzling.               Although

he   seemed    to   give    a    definitive   answer   on   cross-examination


                                       -44-
regarding what the City’s official policy for execution of felony

arrest warrants was at the time of the underlying events, his

answers to questions posed by counsel for Plaintiffs, both at trial

and during his deposition, reasonably undercut the statements he

made during cross-examination.

     The testimony of Officers Marshall and Villareal alone was

sufficient to create an issue of fact regarding the existence of a

consent   requirement.    In   particular,   Officer   Marshall’s,   and

possibly Officer Villareal’s, knowledge of what was required to

execute a felony arrest warrant at a private premises, at the time

relevant herein, seems to coincide with section 90.06 of the Rules

and Procedures Manual, according to their own statements.        Thus,

reasonable jurors could find that at least these officers were

following, and indeed may only have known of, the procedures set

forth in section 90.06.

     At a minimum, the testimony elicited raises a factual question

as to what City officers seeking to execute a felony arrest warrant

at a private premises were trained to do if consent was withheld.

Officer Marshall’s deposition testimony indicated his belief that,

so long as he held a valid felony arrest warrant, his entry by

whatever means necessary was validated.      The law does not condone

such a course of action if the subject in fact is not in residence,

no exigent circumstances exist, and no search warrant has been

procured to protect the privacy interest of the third-party owner.

Viewed in the light most favorable to Plaintiffs, this evidence

                                  -45-
conflicts with the evidence that the officers were trained to get

consent, demonstrating that reasonable and fair-minded jurors in

the   exercise   of   impartial    judgment    might   reach    different

conclusions on this issue.

      Though the City may ultimately prove that it trained its

officers to seek consent before entering a private residence to

execute a felony arrest warrant, the record raises a salient

factual question that precludes judgment as a matter of law.          Did

the City and its officers apprehend that if an innocent third party

withheld consent to enter her home, officers would then be unable

to enter forcibly in the absence of exigent circumstances or a

search warrant? It does not appear that officers were made unaware

that in executing a felony arrest warrant, the United States

Supreme Court had drawn from its interpretation of the Fourth

Amendment   proscription   of   unreasonable   searches   a    fundamental

distinction between the circumstances under which law enforcement

officers could lawfully enter the subject’s home, as opposed to

that of an innocent third party.         The written policy condoned

forcible entry of a third-party premises despite the absence of the

Steagald exceptions, and certain testimony in the record causes us

to question whether the City in practice went any further in

protecting the privacy interests of third parties caught in the

melee.42


     42 Assistant Police Chief Cunningham testified that in his view,
Steagald had not changed the City’s policy in any way. He stated that

                                  -46-
     Paradigmatically, a district court regarding a Rule 50 motion

under these circumstances would thoroughly study the entirety of

the written policy, as well as evaluate the testimony of the

officers on the issue of consent.       The district court would itself

only rule as to the substance of the City’s official policy if the

facts   and   inferences    favored    one     party    so   profoundly    that

reasonable minds would be incapable of disagreeing.              Beyond cavil,

it is critical that the district court be certain that no factual

issue remains in order to justify taking a case from the jury.




          VI.    District Court’s Order Excluding Evidence
                    of an Alleged Similar Incident

     As   part   of   an   omnibus    motion    in     limine   before   trial,

Defendants sought to exclude from the jury’s consideration any

evidence relating to an alleged warrantless entry of another third-

party residence by City of Pasadena police officers attempting to

arrest a felony suspect.43     The City argued, among other grounds,

that such evidence was irrelevant, unduly prejudicial, and had the



he had nevertheless “informed” his officers “as a supplement, [or]
additional guidance,” that if consent was withheld when they need to
execute a felony arrest warrant at a third-party residence, they need
a search warrant to ensure that the law is followed. Assistant Police
Chief Cunningham regards Steagald as merely a “supplement” because
according to him,“the issue has never come up” and “[n]o one’s
complained.”

     43 The incident in question occurred on March 19, 1998, less than
three months before officers allegedly entered the Maddux residence.

                                     -47-
potential to confuse the issues and mislead the jury. Plaintiffs

intended to use the evidence to prove that, as a result of the

City’s written policy respecting the planned execution of arrest

warrants, a persistent and widespread practice inhered whereby

felony arrest warrants could be executed at the home of a third

party in the absence of exigent circumstances and without first

obtaining consent or a search warrant.       The district court granted

that portion of the City’s motion in limine by Order of December 7,

2000.

      Maddux submits that the district court erred in granting the

City’s motion for two reasons: (1) the longstanding position of

this Court that a separate, isolated incident is insufficient to

prove a persistent and widespread practice of a municipality

“should not apply where there is a written policy that may be

inferred to cause a persistent practice;” and (2) the evidence of

this “identical situation” is admissible to contradict the City’s

assertion that its officers always sought consent before entering

a private premises to execute a felony arrest warrant.

      We review a district court’s evidentiary rulings for an abuse

of   discretion,   reserving   the    harmless-error   doctrine   for   any

perceived miscues.44    Although the district court apparently made

no findings on the record in support of its decision, we cannot



     44 United States v. Moody, 903 F.2d 321, 326 (5th Cir. 1990) (“The
admission or exclusion of evidence at trial is a matter committed to the
discretion of the trial court.”).

                                     -48-
say, based on the evidence and the arguments before us, that it

abused its discretion in excluding this evidence.

     Two affidavits submitted by the couple who owned the home in

the alleged similar incident describe the events attendant to the

City officers’ entry for purposes of apprehending an individual

identified in an arrest warrant.45           Maddux refers us to no other

evidence adduced in support of her contention of error.          Insofar as

neither affiant avers facts that would tend to demonstrate that

their home should in fact be considered a third-party residence,

Maddux   has   not   proved   that     the    incident   in   question   was

sufficiently similar to the alleged entry of the Maddux residence.

Further, Maddux provides no sound basis for our departure from this

Circuit’s rule that a persistent and widespread practice so common

and well settled as to constitute a custom or policy cannot be

founded on mere “isolated violations.”46

     Maddux sought to introduce evidence of this one incident,

which without more, even assuming its relevance, exemplifies the




     45 Ted and Lisa Barta, the owners of the home that City officers
entered on March 19, 1998 for purposes of apprehending an individual
identified as Escobar, each signed affidavits describing the events
attendant to their entry.

     46 Bennett v. City of Slidell, 728 F.2d 762, 768 & n.3 (5th Cir.
1984) (“Sufficient duration or frequency of abusive practices, or other
evidence, must warrant a finding of knowledge on the part of the
governing body that the objectionable conduct has become customary
practice of city employees.”).

                                     -49-
type   of   isolated   civil   rights   violation   referred       to   above.47

Because Maddux was unable to show that the district court clearly

abused its discretion in excluding this evidence, the district

court’s decision as to this portion of the City’s omnibus motion in

limine is affirmed.

                            VII.   Conclusion

       Special   difficulties   confront   trial       judges    charged      with

reviewing all of the evidence before them as prelude to ruling on

a motion for judgment as a matter of law in the midst of trial.

Nevertheless, the district court improvidently granted judgment as

a matter of law for the City of Pasadena in this case, which

presented a complicated set of conflicting facts.

       We reiterate that judgment as a matter of law at this stage of

the proceedings     is   appropriate    only   where    the     facts   and   the

inferences resolve themselves into a single reasoned conclusion.

Here, the record contains conflicting evidence as to both the

intent of the officers who allegedly entered the Maddux residence

and the existence of the oral policy and its displacement of the

unconstitutional written one.

       Resolution of those disputed fact issues should have been left

to the jury.     For these reasons, a new trial must be granted.

REVERSED and REMANDED.


     47 Even the “short pattern of conduct” that may sometimes prove
sufficient to demonstrate a custom when the violations are “flagrant or
severe” does not necessarily contemplate one similar incident. Id. at
768.

                                   -50-
-51-
