UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ____________________________

No. 98-10903 Dist. Ct. No. 3:97-CV-1608-G ____________________________

GODWIN N. OMOKARO,

Plaintiff-Appellant,

versus

SCOTT WHITEMYER, Individually and in official capacity as Dallas Police Officer; KYLE HENSLEY, Individually and in official capacity as Dallas Police Officer; CITY OF DALLAS, TEXAS,

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court for the Northern District of Texas _________________________________________________________________

December 30, 1999

Before JONES, and WIENER, Circuit Judges, and LITTLE*, District Judge. *

EDITH H. JONES, Circuit Judge:

Omokaro has appealed the district court’s summary

judgment in favor of two Dallas police officers and the City, the

effect of which dismissed his claims for unconstitutionally

* District Judge of the Western District of Louisiana, 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. excessive force during an arrest on July 22, 1996. We have

carefully reviewed the record and affirm the judgment on a somewhat

different factual analysis from the district court’s.

Like the district court, this court has engaged in de

novo review of the summary judgment record to determine whether

there are genuine issues of material fact that could lead a jury to

conclude that officers Hensley and Whitemyer used

unconstitutionally excessive force when they subdued Omokaro for

resisting the issuance of a citation for remaining at Bachman Lake

Park after closing. Bender v. Brumley,

(5th Cir.

1993). Whether a particular use of force is “objectively

unreasonable” involves case-specific attention to the facts and

circumstances, including the severity of the crime at issue,

whether the suspect poses an immediate threat to the officers’

safety, and whether he actively resists or attempts to evade

arrest. Graham v. Connor,

,

(1989). Reasonableness is judged from the perspective of the

officer on the scene, rather than with 20/20 hindsight vision.

The pertinent evidence here consists of affidavits of

Omokaro and both police officers. We review them in the light most

favorable to Omokaro, the opponent of summary judgment. Harper v.

Harris County,

(5th Cir. 1994).

On the night of July 22, 1996 at approximately 12:30

a.m., Godwin Omokaro, Plaintiff, and Ava Marie Bryant, his

companion, were seated in a vehicle at Bachman Lake Park, Dallas.

2 The park had posted curfew hours between 12:00 a.m. and 5:00 a.m.

Officers Whitemyer and Hensley approached the vehicle and

identified themselves as Dallas police officers. They requested

identification from Omokaro, who was driving. Omokaro complied

with the request while seated in the vehicle.

The officers informed Omokaro and Bryant that they were

violating the park curfew. Omokaro states that he “overheard the

two officers discussing their intent to harass [him].” The

officers returned to their car to check for other “wants and

warrants” on Omokaro. Finding none, they began writing a citation

for the park curfew violation. During that time, Omokaro got out

of his vehicle and walked to a nearby pay phone to call 911 because

he “was in fear for [his] safety and the safety of [his]

passenger.” Officer Hensley got out of the police car and asked

Omokaro to return to his car. Omokaro did not comply with the

order and continued to speak on the phone. Hensley touched or

pulled on the phone or on Omokaro himself.

After this point, the parties’ accounts of the events

differ. Omokaro asserts he did nothing to provoke the officers and

that one of them approached him and sprayed him in the face with

mace. Both officers, however, state that Omokaro kicked Hensley,

who then informed Omokaro that he was under arrest. Whitemyer

reports that he stepped out of the police car and ordered Omokaro

to stop resisting. When the order was not followed, Whitemyer

maced Omokaro.

3 Omokaro further asserts that, without provocation, the

officers knocked his legs out from under him, struck him with a

baton, placed him in a neck hold, and struck him with their fists.

Inconsistently, Omokaro also states that he fell to the ground

after being maced and that he placed his hands in front of his face

because of pain from the mace. Omokaro admits to yelling and

screaming a lot and asserts he was dragged across the ground. He

lost consciousness, he says, after being handcuffed.

The officers, by contrast, report that Omokaro, a big,

strong man, resisted arrest by kicking, hitting and biting and that

they unsuccessfully attempted two physical compliance techniques to

gain control of him. Only after using a third method, a Lateral

Vascular Neck Restraint, were the officers able to handcuff

Omokaro. Defendants indicate that Omokaro continued to kick, bite,

and otherwise resist, so they called for backup. With assistance

of several other police officers, they finally affixed leg

restraints on Omokaro. The police officers placed him face down on

the back seat of the police car and shortly thereafter noticed he

was not breathing. CPR was administered, and Omokaro was

transported to the hospital.1

The problem for Omokaro is that even if we accept his

version of the facts, he has not contradicted salient features of

the officers’ testimony that support the contention that they

1 At some point, Omokaro suffered an anoxic incident, loss of blood supply to the brain, and was left legally blind with other injuries.

4 responded reasonably to the developing situation. Omokaro was

stopped by police for a curfew violation, and after being informed

of the violation, he exited his car and went to a pay phone. He

does not contradict that he refused to follow the officer’s orders

to stop using the phone and return to his car. Omokaro admits that

he was upset by the initial interaction with the police and was

calling for help. Thus, even if he did nothing more to provoke or

threaten the officers at that point (i.e. even if he did not kick

Hensley), he admittedly refused to obey verbal commands to stop

using the phone and to return to his vehicle, and he probably did

appear upset and angry. Officer Whitemyer then sprayed Plaintiff

with mace to subdue him. Again, taking the facts in a light most

favorable to plaintiff, the mace caused him to fall to the ground

and thrash about in pain. From the perspective of a reasonable

police officer on the scene, however, such thrashing could be

viewed at least as resistance and perhaps as threatening behavior.

All agree that Omokaro was handcuffed after the officers applied

physical restraints.

After that point, Plaintiff claims no further recollection of

the events. The officers’ affidavits that he continued violently

to resist arrest stand undisputed. Omokaro’s contrary contention

that he failed to provoke, threaten or resist the officers after

handcuffing is inadmissible speculation on his part and creates no

material fact issue requiring resolution by a jury.

5 No reasonable jury could find that the officers’ actions

in stopping Omokaro, ordering him to stop using the phone, and

spraying mace to enforce their orders exceeded constitutional

bounds. And even by Omokaro’s account, a reasonable officer could

have perceived his reaction to the mace -- rolling around,

screaming and yelling -- as threatening or resisting arrest in such

a way as to demand physical force to handcuff him. When Omokaro

continued to thrash around after being handcuffed, the officers’

call for backup assistance vividly reflects their assessment of a

still-dangerous situation; the reasonableness of their actions from

this point on is uncontradicted by the evidence.

The affidavit of proffered expert Lou Reiter also fails

to turn these events into disputed jury issues. Experts on police

techniques can always second-guess the officer in the field,

opining that his judgment could have been better and his tactics

could have been more lenient. But allowing such evidence to create

jury issues in any but the most egregious cases would disregard the

Supreme Court’s point in Graham:

The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments--in circumstances that are tense, uncertain and rapidly evolving--about the amount of force that is necessary in a particular situation.

Graham, at 396-97. Reiter’s affidavit does not explain how the

officers’ use of force was “clearly” disproportionate to the need.

Finally, Omokaro has not produced evidence to demonstrate

that officers Whitemyer and Hensley had the duty, much less the

6 ability to monitor him medically after he was handcuffed. They

both saw him conscious and breathing when he was placed in the

police car. A short time later, Omokaro appeared to have stopped

breathing. Other officers were milling about by this time.

Omokaro’s predicament was quickly assessed and treated at the

scene. Because Omokaro can’t identify what condition he should

have been monitored for, how can he impose liability on police

officers for not knowing?

The district court correctly concluded that the police

officers’ actions were constitutionally reasonable, rendering

summary judgment on Omokaro’s § 1983 claim the only proper course.

In the absence of a case against the officers, Omokaro has no case

against the City of Dallas either. The judgment of the district

court is affirmed.

AFFIRMED.

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