Mary Rollins v. Greg Smith ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-3222
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Mary Rollins, Individually and as *
Administratrix of the Estate of *
Norman Rollins, *
* Appeal from the United States
Appellant, * District Court for the
* Eastern District of Arkansas.
v. *
* [UNPUBLISHED]
Greg Smith, Individually and in his *
official capacity; City of Little Rock, *
Arkansas, *
*
Appellees.
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Submitted: July 7, 2004
Filed: July 22, 2004
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Before BYE, McMILLIAN, and RILEY, Circuit Judges.
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PER CURIAM.
Mary Rollins (Mary), individually and as administratrix of Norman Rollins’s
(Norman’s) estate, brought this 42 U.S.C. § 1983 action against Greg Smith, a Little
Rock Police Department (LRPD) officer, claiming Fourth Amendment violations and
battery. Mary’s claims arose from the shooting death of her son Norman during an
altercation that occurred when Officer Smith--who was called twice at Mary’s
direction--attempted to convince Norman to leave Mary’s beauty salon.1 Mary now
appeals the district court’s2 adverse entry of final judgment upon the jury’s verdict.
For reversal, she challenges certain pretrial evidentiary rulings, the district court’s
withholding of one claim from the jury, and the jury’s verdict on the Fourth
Amendment claim.
To the extent we can determine the propriety of the district court’s pretrial
evidentiary rulings without a transcript of the related telephone conference, see
Schmid v. United Bhd. of Carpenters & Joiners of Am., 827 F.2d 384, 386 (8th Cir.
1987) (per curiam) (appellant must bring before reviewing court all parts of
proceedings below necessary to determine validity of claimed error), cert. denied, 484
U.S. 1071 (1988), we find no abuse of discretion in the exclusion of evidence of
preseizure conduct, including an LRPD general order on handling mentally ill
persons, and a Deadly Force Review Board report completed after the incident, see
Lampkins v. Thompson, 337 F.3d 1009, 1012 (8th Cir. 2003) (standard of review).
In this circuit, preseizure conduct is not relevant in determining whether there was a
Fourth Amendment violation. See Duffy v. Wolle, 123 F.3d 1026, 1039 (8th Cir.
1997) (defining relevant evidence; review of district court’s determination as to
relevancy is extremely deferential), cert. denied, 523 U.S. 1137 (1998); Schulz v.
Long, 44 F.3d 643, 648-49 (8th Cir. 1995) (this court scrutinizes only seizure itself,
and not events leading to seizure; no error in excluding evidence that officers should
have responded in different manner).
1
Summary judgment was granted as to the other defendant (the City of Little
Rock) and most of the state-law claims, and the remaining state-law claims (other
than the shooting-related battery) were not submitted to the jury. Except for an
assault-and-battery claim related to Officer Smith’s use of a baton before the
shooting, these rulings are not at issue on appeal.
2
The Honorable Garnett Thomas Eisele, United States District Judge for the
Eastern District of Arkansas.
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We also reject Mary’s contention that the district court should have admitted
the testimony of her expert, Dr. Terry Cox. Dr. Cox’s testimony primarily focused
on what Officer Smith should have done before confronting Norman a second time,
and his proposed testimony as to Smith’s use of force conflicted with Eighth Circuit
precedent. See Estes v. Moore, 993 F.2d 161, 163-64 (8th Cir. 1993) (per curiam)
(expert testimony is only admissible if it assists trier of fact to understand evidence
or determine fact in issue; statement of legal conclusion by purported expert was
properly excluded). Further, he admittedly did not teach classes on the use of force,
nor had he taken any recent courses on the subject, cf. Jenkins v. Ark. Power & Light
Co., 140 F.3d 1161, 1162, 1165-66 (8th Cir. 1998) (expert properly excluded in
diving-accident case partly because he was not expert in placement of buoys, had
never investigated diving accident, and was not accident reconstructionist); and we
decline to consider Mary’s newly raised argument about using Dr. Cox as a lay
witness, see Brozo v. Oracle Corp., 324 F.3d 661, 668 (8th Cir.), cert. denied, 124 S.
Ct. 578 (2003).
As to the sufficiency of evidence supporting the jury verdict on the Fourth
Amendment claim, Mary did not renew her motion for judgment as a matter of law
(JAML) after the jury rendered its verdict, and thus the verdict is subject to only
plain-error review. See Broadus v. O.K. Indus., Inc., 238 F.3d 990, 991 (8th Cir.
2001) (per curiam). The evidence Mary cites does not help her. Specifically, John
Lovelace’s testimony, as well as the report of Dr. Nordy (Mary’s expert), supported
Officer Smith’s version of the shooting, and the jury heard evidence that Mary’s and
Olivia Noland’s trial testimony as to what happened at the time of the shooting
differed from their previous deposition testimony and recorded statements. See
Herndon v. Armontrout, 986 F.2d 1237, 1240 (8th Cir. 1993) (it is jury’s province
and duty to resolve conflicts in testimony). We find no plain error. See Seiner v.
Drenon, 304 F.3d 810, 812 (8th Cir. 2002) (shooting is objectively reasonable when
officer has probable cause to believe suspect poses significant risk of death or serious
physical harm to officer or others; mistaken understanding of facts that is reasonable
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under circumstances can render seizure based on that understanding reasonable under
Fourth Amendment).
Finally, Mary contends the district court should not have granted JAML on the
assault-and-battery claim associated with a baton strike Officer Smith inflicted before
the shooting. This argument also fails. See Schulz, 44 F.3d at 647 (de novo standard
of review; JAML is appropriate only where nonmoving part has presented insufficient
evidence to support jury verdict in her favor; court must view evidence in light most
favorable to nonmoving party and not assess credibility). The witnesses agreed that
Mary did not want Norman in the shop, that Norman refused to go with Smith and
assumed an aggressive stance, and that he made threatening comments; and Smith
testified that Norman was retreating further into the shop, where customers, including
children, were present, and Norman had just struck him twice. Thus, Smith’s striking
Norman with a baton to immobilize him temporarily was not assault and battery. Cf.
Orr v. Walker, 310 S.W.2d 808, 809, 811 (Ark. 1958) (assault-and-battery jury
instruction in context of police officer’s conduct during misdemeanor arrest:
considering whether force was necessary to prevent escape or make arrest).
Accordingly, we affirm.
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