862 F.2d 1177 (5th Cir. 1989), 87-1724, Melear v. Spears

Docket Nº:87-1724.
Citation:862 F.2d 1177
Party Name:Carrie MELEAR and Willie Stewart, Plaintiffs-Appellees, v. Wayne SPEARS, etc., et al., Defendants, Ron Averitt, etc., Defendant-Appellant.
Case Date:January 12, 1989
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 1177

862 F.2d 1177 (5th Cir. 1989)

Carrie MELEAR and Willie Stewart, Plaintiffs-Appellees,


Wayne SPEARS, etc., et al., Defendants,

Ron Averitt, etc., Defendant-Appellant.

No. 87-1724.

United States Court of Appeals, Fifth Circuit

January 12, 1989

Page 1178

Betty Wheeler, San Diego, Cal., for Melear et al.

Donald M. Hunt, Carr, Evans, Fouts & Hunt, Lubbock, Tex., for Ron Avirett.

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

Before GOLDBERG, HIGGINBOTHAM and DAVIS, Circuit Judges.

GOLDBERG, Circuit Judge:

Ron Avirett, the appellant in this case, asks us to review the soundness of a judgment predicated on a jury verdict. The jury concluded that Avirett is liable in his personal capacity under 42 U.S.C. Sec. 1983 for his participation in a police search of an apartment building in Bovina, Texas. The jury also awarded both actual and punitive damages to the appellees, Carrie Melear and Willie Stewart. Avirett contends that the verdict is not supported by the evidence. Acutely aware of the sanctity of the jury's role in our system of adjudication, we acknowledge our duty of review, but we dare only step lightly as we perform our obligation.

As we undertake our task, we are reminded of and instructed by a rather more grand and celebrated dispute. Montesquieu once predicted the demise of the English system of liberty by comparing England and once-powerful ancient cultures. In the Commentaries, Blackstone chose an apparently mundane basis for rebuttal, contending that Montesquieu "should have recollected that Rome, Sparta

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and Carthage, were strangers to trial by jury." 1 We likewise revere the jury's function, just as we revere the right to the jury trial that Avirett exercised. Heeding the lessons of history, and finding clearly sufficient evidence in the record to support the verdict, we affirm the judgment of the district court.


The appellees, Melear and Stewart, sued Avirett and five other defendants under 42 U.S.C. Sec. 1983 for the warrantless search of their apartments on May 10, 1984. Stewart was a tenant in the low-income, five-unit building, which the 69 year-old Melear owned and also lived in. Avirett was a deputy sheriff in Parmer County, Texas. The other defendants were Parmer County; the City of Bovina; Wayne Spears, who was the Bovina city manager and justice of the peace; Rodney Bachman, the Bovina police chief; and Mel Clark, a Bovina police officer. 2

The jury found that the defendants, Spears, Clark, Bachman and Avirett, were jointly and severally liable to Melear and Stewart for actual damages, and were individually liable for punitive damages. On March 12, 1986, the district court entered judgment in accordance with the jury verdict. Spears, Clark and Bachman have not appealed. Avirett filed timely motions to alter or amend the judgment, for a new trial, and for judgment notwithstanding the verdict under F.R.Civ.P. 50 and 59. The district court denied the motions on August 21, 1987. Avirett proceeded with this appeal. He argues that (1) he is entitled to qualified immunity in his personal capacity according to the standards of Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), because a reasonable officer, in light of existing law, could have concluded under the circumstances of this case that probable cause and exigent circumstances justified the apartment searches; (2) his status as a backup officer in the search of Willie Stewart's apartment is an alternative ground entitling Avirett to qualified immunity; (3) his participation in the search of Carrie Melear's apartment did not constitute a Fourth Amendment violation necessary to predicate liability under Section 1983; and (4) punitive damages are not supported by the evidence.


An extensive array of facts lies in the record. The evidence affords a solid foundation for the jury's conclusions regarding this disturbing tale of police misconduct.

The evidence from which the jury drew its conclusions demonstrates that early in the evening on May 10, 1984, two individuals named Carmelo and Jinio, armed with a handgun and machete, drove to the house of Terisa Diaz. Terisa's cousin, Elodia, lived across the street. Elodia was married to a man named Steve Madrigal, but they were often separated. Elodia and Carmelo apparently had been seeing each other during the most recent period of separation. While in front of Terisa's house, Carmelo asked Terisa if she knew whether Steve was at Elodia's house. Terisa replied that she thought so. Carmelo responded that he intended to kill Steve and then drove to Elodia's nearby house with Jinio. Steve was not at home.

Sometime shortly thereafter, Elodia called the police to report Carmelo's death threat. Terisa, meanwhile, went to the home of her boyfriend, Eusebio Salazar, to tell him that Carmelo and Jinio might be coming over to Salazar's house and that the police might be searching for the two men. Salazar's roommate was friendly with both of the men. In fact, both Carmelo and Jinio appeared at Salazar's house. After they arrived, Salazar drove away, Terisa left on foot, and Carmelo left on foot, having given Terisa his car keys.

During this sequence of events, the wife of Rodney Bachman, the police chief of

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Bovina, received an anonymous telephone call at their home reporting a possible fight near Elodia's house. At the time of the telephone call, Rodney Bachman was at the home of Spears, the Bovina city manager and justice of the peace, along with the appellant, Avirett, a Parmer County deputy sheriff. The three men were attaching a tow bar to the back of a vehicle owned by Spears, a project they had started in the late afternoon. All three were off-duty and were drinking beer as they worked. The evidence showed that Avirett had consumed three cans of beer.

At approximately 9:00 P.M., Mel Clark, a Bovina police officer, arrived at the Spears home as the three men were completing the project. Clark had finished a can of beer with his meal earlier in the evening. He was at the Spears home to pick up the city police car, which Bachman had been driving, in case Clark received any emergency calls that night.

When Mrs. Bachman called the Spears home with the information she received from the anonymous telephone caller, Clark took the message. He then drove in the police car to the area of the reported fight. After he left, Bachman, Spears and Avirett decided to drive to the area to afford backup to Clark in the event he needed help. Bachman and Spears proceeded in one private car, and Avirett drove his personal car.

After Clark arrived at the scene, Elodia informed him of the death threat. Bachman, Spears and Avirett arrived shortly thereafter. Clark then reported that the problem was not a fight, but a death threat.

None of the defendants obtained detailed information concerning Carmelo's description. Clark received the only description. He was told that the suspect was wearing a red shirt, blue jeans, had a "dark complexion," and was probably a "Black man or dark-colored Mexican." Clark apparently relayed this vague description to his three colleagues, but confusion among the officers remained: at the trial, Avirett testified that Clark told him there were two suspects, armed with a gun and a knife, who had made a death threat.

Armed with their scant but newfound information, the four defendants set out in search of the suspect in their respective vehicles. Bachman, joined by Clark, soon stopped Craig Pearson, a young Black man who was out for a walk in a red shirt and blue jeans. At this point, Terisa Diaz and Jinio's ex-girlfriend walked up and described Carmelo and Jinio to Bachman and Clark. Terisa gave them Carmelo's keys, and told them that he was in the area on foot.

Terisa then went to her cousin Elodia's house. Standing in Elodia's yard, they flagged down Spears and Avirett as they drove by. The women stated that Carmelo had run across the alley "to the next alley," "going towards the pool hall," "toward the Melear Apartments." During this time, Clark stopped Eusebio Salazar, who was driving by at the time in a bright red jacket and blue jeans. Clark apprehended Salazar, and placed him in the police car, in which Craig Pearson was already sitting.

As the events progressed toward the initiation of the searches, the pool of evidence becomes slightly murkier, though far from opaque. Officer Clark testified that after he placed Salazar in his vehicle, he received information from a Mrs. Porras, a nearby resident whom he knew and believed to be reliable and credible, that the suspect had run into the Melear Apartments. Mrs. Porras did not testify at the trial, and the evidence shows that the day after the incident she denied having made the statement attributed to her by Clark. The evidence also shows that anyone standing in Mrs. Porras' front yard, or near her house, could have seen only part of the Melear apartment building, and could not have seen either entrance to the building. No testimony suggests that Mrs. Porras ever left her yard during this time period. Finally, Avirett testified at the trial that Clark stated that the suspect was going toward the Melear Apartments.

The Melear apartment house is a two-story building. The first floor was a vacant

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storage area in May, 1984. There are five apartment units on the second floor. They all open onto a central hallway. Stairwells at both ends of the hallway lead to entrances on the first floor at opposite ends of the building.

After leaving Elodia's front yard, the four defendants, including the appellant Avirett, proceeded to the Melear Apartments in search of the red-shirted, blue-jeaned suspect with a dark complexion. Because the building has two entrances, Clark, backed up by Avirett, proceeded up one stairwell. Bachman, backed up by Spears,...

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