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United States Court of Appeals,
Fifth Circuit.
No. 96-50594.
Felix TAMEZ; Alice Tamez, Individually and as Guardian & Parent
of Joseph Tamez, and Mary Alice Tamez, Felix Tamez, Jr., and Debbie
Tamez, Plaintiffs,
Alice TAMEZ, Individually and as Guardian & Parent of Joseph
Tamez, Mary Alice Tamez, Feliz Tamez, Jr., and Debbie Tamez,
Plaintiff-Appellant,
v.
CITY OF SAN MARCOS, TEXAS; Daniel Misiaszek, Defendants-
Appellees.
Aug. 13, 1997.
Appeal from the United States District Court for the Western
District of Texas.
Before JOLLY, DUHÉ and EMILIO M. GARZA, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
In this case, a magistrate judge granted judgment as a matter
of law in favor of defendant Daniel Misiaszek, voiding a $275,000
civil jury verdict against him on the basis of official and
qualified immunity. Plaintiffs, the survivors of Felix Tamez,
appeal the magistrate's grant of judgment as a matter of law.
Because we find that Misiaszek was immune from suit under both
federal and state law, we affirm.
I
San Marcos Police Officer Daniel Misiaszek, with three other
police officers, responded to a "shots fired" call at a private
residence at around 9:30 one night. When Misiaszek arrived at the
house, he walked through the back yard to investigate. He saw two

men and two women who apparently did not look alarmed or suspicious
to him. Misiaszek then walked around the front of the house. From
the front porch, Misiaszek and fellow officer Paul Culin heard
noises from inside the house, including loud footsteps and the
sounds of a radio or television.
At this time, Steven Marmolejo walked out of the house with a
piece of chicken and a glass of water, apparently unaware that the
officers were on the front porch. Misiaszek recognized Marmolejo
as a suspect in a pending burglary investigation, and the officer
began to question him about the gun shots. Marmolejo told the
officers on the porch that he had not heard any gunshots.1
As Officer Culin questioned Marmolejo on the porch, Misiaszek
went to the doorway to speak to whomever was still in the house.
Witnesses at trial offered conflicting testimony about what
Misiaszek knew at this point; Marmolejo testified that he told
Misiaszek that there was no one in the house, while Misiaszek
testified that Marmolejo said Tamez was inside. It is undisputed
that Misiaszek did not have a search warrant and that he had not
previously attempted to interview the person who made the "shots
fired" report. The front door of the house was open, but the
screen door was shut. Misiaszek opened the screen door, announced
"Police Officer," and leaned into the doorway to speak to whomever
was inside; Marmolejo and Culin corroborated this account.
When he leaned into the residence, Misiaszek saw Tamez, who
1Marmolejo later testified in a deposition that he lied to
protect Felix Tamez, who was his uncle. Marmolejo also testified
that he had known Tamez had fired a gun in the back yard that
night and that he had seen Tamez holding the gun just before he
had walked out onto the porch.

was sitting on a chair with his back to the door, apparently
talking on the telephone. Misiaszek did not know that Tamez was
holding a revolver in his right hand or that Tamez had been
drinking with Marmolejo and was severely intoxicated. Tamez's
blood alcohol level was determined later that evening to be about
.34. Officer Culin testified that he heard Misiaszek say, "Are you
all right, sir?" Tamez turned to face the Misiaszek and pointed
his gun at the officer. Misiaszek did not know that Tamez's weapon
contained only empty shell casings; Tamez had fired all of the
bullets in his back yard earlier in the evening. Misiaszek stepped
quickly into the house, crouched, and fired six rounds from his
service revolver. Misiaszek missed Tamez with most of his shots
but hit him once in the right arm and once in the left leg. The
shots wounded Tamez but did not kill him.
After securing Tamez's weapon, Misiaszek checked Tamez for
vital signs and called for emergency medical assistance, in
accordance with police policy. Paramedics treated Tamez both at
the scene and at a local hospital. The San Marcos Police
Department conducted an internal review and a grand jury inquiry
into the shooting. Both cleared Misiaszek of any criminal or
procedural wrongdoing.
After his release from the hospital, Tamez filed the instant
action, alleging various federal and state law claims against
Officer Misiaszek and the City of San Marcos. In addition, the
state brought a criminal action against Tamez for attempted capital
murder in relation to the incident. Tamez pleaded nolo contendere
to the charge. Tamez subsequently died of health problems that the

family stipulates are unrelated to the shooting. The plaintiffs in
this action, family members of Felix Tamez, filed a motion to
substitute parties under Fed.R.Civ.P. 25, and the magistrate
granted surviving family members permission to continue the suit in
the place of Felix Tamez. They did not request and the magistrate
judge did not grant them intervention to proceed on their own
behalf.
After further discovery, the plaintiffs filed a motion for
partial summary judgment, alleging that Misiaszek had violated
Tamez's Fourth Amendment rights as a matter of law. Misiaszek and
the City responded and filed their own cross-motion for summary
judgment, asserting qualified and official immunity from suit. The
court denied both motions for summary judgment in their entirety.
Misiaszek filed an interlocutory appeal from the court's denial of
his dispositive motion, and we dismissed the appeal for want of
jurisdiction because of contested fact issues.
The case went to trial before a magistrate judge, and at the
close of plaintiffs' case, both Misiaszek and the City moved for
judgment as a matter of law ("JML") under Fed.R.Civ.P. 50(a),
asserting various immunity defenses. The court granted judgment
for the City of San Marcos on all claims and dismissed the suit
against the city. The court then allowed the case to proceed
against Misiaszek only. At the close of all the evidence,
Misiaszek's lawyer asked the court how it intended to deal with the
immunity issues, but he did not move for a JML at the close of the
evidence. The judge noted at the close of all evidence that he was
convinced that Misiaszek was immune from suit. The judge

nonetheless decided to submit the case to the jury, because the
parties had already reached the end of the trial. The judge
indicated that he would decide the immunity issues from the bench
after the verdict, if necessary.
The jury found: (1) that Misiaszek had violated the Fourth
Amendment when he opened Tamez's door without warrant or
permission; (2) that Misiaszek was negligent in causing Tamez's
injuries; and (3) that Misiaszek did not employ unconstitutionally
excessive force in the shooting. The jury awarded $25,000 in
actual damages and $50,000 in emotional injury damages to Tamez's
estate and $200,000 in damages to his family members,2 but it did
not award punitive damages. After the verdict, Misiaszek filed a
motion for JML, primarily asserting his qualified and official
immunity defenses. The court granted Misiaszek's motion, holding
that the officer enjoyed both qualified and official immunity from
suit. Plaintiffs timely appealed.
II
Misiaszek moved for JML at the close of the plaintiffs' case
but failed to renew his motion at the close of all of the evidence.
We have held that failure to request JML (or its predecessors JNOV
2Misiaszek challenged on appeal the magistrate judge's
decision to allow the jury to award $200,000 in damages to the
family members in their individual capacities. The family
members were parties to the suit only in the place of Felix Tamez
under Fed.R.Civ.P. 25. See also Felan v. Ramos, 857 S.W.2d 113,
118 (Tex.App.1993, writ denied) (under Texas Survival Act,
damages recoverable are only those the decedent sustained while
alive); Tex. Civ. Prac. & Rem.Code § 71.021 (Vernon 1995). We
express serious doubt about the propriety of the instruction and
about the award of individual damages to the family under federal
or state law; however, because we affirm the magistrate judge's
decision to vacate the entire jury award, we need not reach this
alternative ground for decision.

and directed verdict) at the close of all the evidence waives JML
after the jury verdict. Allied Bank-West, N.A. v. Stein, 996 F.2d
111, 115 (5th Cir.1993); McAnn v. Texas City Refining, Inc., 984
F.2d 667, 670 (5th Cir.1993). Rule 50(b) provides that, after a
jury verdict, either party may "renew" a motion for JML made at the
close of all the evidence. Accordingly, we have held that a
district court may not issue a JML after the verdict unless the
parties make the proper motion at the close of all of the
evidence--a party cannot renew a motion it has not previously made.
Allied Bank, 996 F.2d at 114-15.
Although Misiaszek's lawyer moved for JML at the close of the
plaintiff's case, that motion will not suffice to preserve the
motion after the verdict. The law of this circuit holds that, by
introducing its own evidence after the plaintiff's case in chief,
and by failing to renew the motion for JML, the defense waived its
motion for judgment after the verdict. McAnn, 984 F.2d at 671;
see also 5A Jeremy C. Moore et al., Moore's Federal Practice ¶
50.05[1] (2d ed. 1992). Therefore, absent a motion for JML at the
close of all of the evidence, the magistrate should not have
allowed Misiaszek to make a Rule 50(b) motion after the verdict.
McAnn, 984 F.2d at 671; Scheib v. Williams-McWilliams Co., 628
F.2d 509, 511-12 & n. 1 (5th Cir.1980).
In the past we have excused certain "de minimis" departures
from technical compliance with Rule 50(b). McAnn, 984 F.2d at 671.
See, e.g., Davis v. First Nat'l Bank, 976 F.2d 944, 948-49 (5th
Cir.1992) (excusing de minimis failure to comply with letter of
Rule 50(b)), cert. denied, 508 U.S. 910, 113 S.Ct. 2341, 124

L.Ed.2d 251 (1993); Merwine v. Board of Trustees, 754 F.2d 631,
634-35 (5th Cir.) (same), cert. denied, 474 U.S. 823, 106 S.Ct. 76,
88 L.Ed.2d 62 (1985); Bohrer v. Hanes Corp., 715 F.2d 213, 216-17
(5th Cir.1983) (same), cert. denied, 465 U.S. 1026, 104 S.Ct. 1284,
79 L.Ed.2d 687 (1984). We have applied Rule 50(b) not as an
exercise in technical hair-splitting, but in the context of its
particular purposes as well as in the context of "securing a fair
trial for all concerned." Merwine, 754 F.2d at 634.
This case does not fit the profile of the traditional case in
which we have allowed a de minimis exception. As we pointed out in
McAnn, the cases in which we have excused noncompliance have had
five things in common: (1) we concluded that allowing the motion
would satisfy the purposes (if not the letter) of Rule 50; (2) the
trial court had reserved, not denied, a motion for JML at the close
of the plaintiff's case; (3) the defendant called no more than two
witnesses before closing; (4) only a few minutes elapsed between
the motion for JML and the conclusion of all the evidence; and (5)
the plaintiff introduced no rebuttal evidence. In McAnn, we found
that none of these factors was present. 984 F.2d at 672.
Therefore we held that the case involved a complete failure to
follow the requirements of the rule, not a de minimis departure.
In the instant case, the trial court denied JML at the close
of plaintiff's case, agreeing to revisit the issue after the jury
verdict. After the close of plaintiffs' case, the defense called
five witnesses, and nearly five hours elapsed between the motion
for JML and the close of the defendant's case. The Tamezes offered
no rebuttal evidence after the close of the defendant's case. On

the whole, this case (like McAnn) does not present facts similar to
the other cases in which we have found a de minimis exception to
total compliance with Rule 50.
Nonetheless, we find that the failure in this case to make an
actual motion at the close of the evidence was a technical,
formalistic defect, not a substantive one. In the instant case,
Misiaszek moved for JML at the close of plaintiffs' case. In
denying the motion, the court explicitly stated that it would
consider the immunity issues after the jury returned a verdict.
Furthermore, although Misiaszek's lawyer did not actually make the
Rule 50 motion at the close of all the evidence, he did make an
explicit request for the court to consider JML after the verdict,
and the court agreed to reconsider the legal issues after the
verdict, without objection by plaintiffs. After a brief recess at
the close of the defendant's case, the following colloquy took
place:
MR. NAVARRO [Counsel for Misiaszek]: Did I understand the
Court correctly that you are going to hold the official and
qualified immunity issues as law questions for the Court?
THE COURT: Well, I will tell you what, frankly, I'm planning
to do. And I don't want to dis-spirit [sic] Mr. Galbraith
[Counsel for the Tamezes], but I have a hard time seeing where
you've shown that the officer did anything that would show
that he violated his qualified or official immunity.
But, you know, we got to the point where we got in the
case. And you had an expert, which I thought was--frankly, I
mean, he did--for the case he had, I thought he did a pretty
good job. I just--I don't think as the facts played themselves
out, I didn't ever hear anyone come on and say that he did
something that I think a reasonable police officer would not
have done in his situation.
But that's not a reason, I don't think, to not let it go
before a jury. You've tried the case. You know, your people
have invested their time in it.

And what I'm planning to do is let you go to the jury.
And then we can figure out what to do after that comes back.
So at least if you go up on appeal, we won't all have to do
this again.
MR. NAVARRO: Well, the only reason I asked that is because
there's still some language and questions on the immunity
questions in the charge. And if I understood that, the Court
was going to hold those as law questions, which is what I
think they really are. I assumed--
THE COURT: I think they are, really, too. And, frankly--so
what I'm going to do is let the case against the officer go
forward. And that way you can get whatever verdict you get
against the defendants--against the officer. And then we'll
figure out what to do afterwards if I--
MR. NAVARRO: And we may not need to address that issue. And
if we do, we will deal with it as a question of law.
THE COURT: Right.
Counsel for the plaintiffs did not object to this agreement.
It is clear from the record that the defense counsel brought
the immunities issues to the court's and the plaintiffs' attention
at the close of all evidence for the purpose of having the court
decide the issues from the bench. Presumably, once the judge
agreed to consider those questions as a matter of law after the
verdict, plaintiffs' counsel could have objected or defense counsel
could have made a formal motion for the record. But such a motion,
in the context of the very specific conversation quoted above,
would have been an academic exercise.
Although we would prefer full compliance with the letter of
Rule 50, we find that the discussion at issue served the purposes
of the rule and adequately informed the plaintiffs and the court
that Misiaszek was raising immunity issues after the jury returned.
At most, this case involves a failure to comply with the
formalities of a 50(b) motion before the court. Therefore we find

that counsel's discussion of the issues with the judge, the judge's
agreement to revisit the immunities issues after the verdict, and
the plaintiffs' failure to object, serve the purposes of an actual
Rule 50(b) motion. See Greenwood v. Societe Francaise De, 111 F.3d
1239, 1244-45 (5th Cir.1997) (holding that purposes of Rule 50 are
satisfied when court and plaintiff are alerted to grounds on which
defendant contends evidence is insufficient prior to submission of
case to jury); Villanueva v. McInnis, 723 F.2d 414, 417 (5th
Cir.1984) (same). Accordingly, we will not reverse the
magistrate's post-verdict judgment for failure to make the motion
at the close of the evidence.
III
In addition to their challenge to the procedure by which the
magistrate judge granted JML, plaintiffs claim that the court
misconstrued federal and state immunities law in granting judgment.
The magistrate judge issued separate jury instructions for the
Fourth Amendment search and for the use of force in the shooting.
The jury held that Misiaszek did not use excessive force in
shooting Tamez, but that the officer negligently caused Tamez's
injuries and that his entry into the Tamez household itself was an
actionable constitutional wrong. The court issued a judgment as a
matter of law, trumping the jury's verdict on the federal Fourth
Amendment claims because Misiaszek was entitled to qualified
immunity. The court also mooted the jury's finding on a state
negligence claim, holding that, under Texas law, Misiaszek was
officially immune from suit. The existence of qualified immunity
is a question of federal law, and we consider it only insofar as it

pertains to the federal Fourth Amendment claim for entry into the
Tamez household. The official immunity issue is a matter of state
law, which we consider separately.
We review de novo the magistrate judge's legal conclusions,
whether regarding federal or state law, in entering judgment under
Rule 50(b). Pierce v. Texas Dep't of Criminal Justice,
Institutional Div., 37 F.3d 1146, 1149 (5th Cir.1994), cert.
denied, 514 U.S. 1107, 115 S.Ct. 1957, 131 L.Ed.2d 849 (1995). In
reviewing the magistrate judge's decision, we consider all of the
evidence in the light most favorable to the nonmoving party--here
the Tamezes. Fontenot v. Cormier, 56 F.3d 669, 673 (5th Cir.1995).
The magistrate judge's rulings on qualified immunity and official
immunity are questions of law, which we review de novo. Pierce, 37
F.3d at 1149.
A
Under the federal doctrine of qualified immunity, law
enforcement officers may not be held liable for civil damages, so
long as they are performing a discretionary function that does not
violate "clearly established statutory or constitutional rights of
which a reasonable person would have known." Harlow v. Fitzgerald,
457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982).
Because qualified immunity is an affirmative defense, the defendant
must both plead and establish his entitlement to immunity. Gomez
v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923, 64 L.Ed.2d 572
(1980); Cronen v. Texas Dep't of Human Services, 977 F.2d 934, 939
(5th Cir.1992).
At the outset, we briefly address Tamez's contention that

Misiaszek was not performing a discretionary duty when, responding
to the shots fired call, Misiaszek decided to check in the house to
see if anyone was injured. An official acts within his
discretionary authority when he performs nonministerial acts within
the boundaries of his official capacity. Cronen, 977 F.2d at 939.
Misiaszek's actions here were not pursuant to specific orders, or
spelled out in minute detail beforehand. His response required
quick, but careful deliberation and the exercise of his judgment.
In particular, the decision whether to enter Tamez's house required
Misiaszek to balance the property rights and constitutional
liberties of the homeowner against the interests of anyone who
might be hurt inside, considerations of the safety of his fellow
officers, and the exigencies of the moment. This decision clearly
falls within the realm of discretionary decisions police officers
commonly make. As such, Misiaszek satisfies the first requirement
of the Harlow test for qualified immunity.
Whether Misiaszek's actions violate clearly established rights
of which a reasonable person would have known, as Tamez contends,
is a closer question. This requires us to decide whether the law
on the night in question clearly established that the intrusion was
an unreasonable search under the Fourth Amendment. First, we will
examine the facts established at trial, viewed in the light most
favorable to the Tamezes, and we will consider what Misiaszek knew
on the night of the night in question. Then we will determine
whether Misiaszek's actions violated Tamez's rights under the
Fourth Amendment, as that law stood on that night. Finally, if we
find that there was a violation of Tamez's rights as a matter of

law, we will consider whether a reasonable person would have known
that Misiaszek's actions violated such a right. See Dickerson v.
McClellan, 101 F.3d 1151, 1157-58 (6th Cir.1996) (setting out
procedure for deciding qualified immunity in Fourth Amendment
context).
1
Misiaszek's account of the events was different from Tamez's,
but we consider the evidence in the light most favorable to Tamez.
Fontenot, 56 F.3d at 673. Misiaszek did not have a warrant, but he
knew that someone had reported shots fired at Tamez's house.
Misiaszek recognized Marmolejo, the man who came out of the house,
as a suspect in a burglary. Misiaszek knew that Marmolejo denied
that any shots had been fired, although neighbors had reported
hearing them. Misiaszek testified that, as the officers were
questioning Marmolejo on the porch, Misiaszek heard noise coming
from the house, such as a television or loud music.
There was conflicting evidence at trial regarding whether
Marmolejo told officers that Tamez was in the house, and it is not
clear which version of events is more favorable to the Tamezes.
Marmolejo testified that he told Misiaszek that no one was in the
house. Misiaszek testified that Marmolejo told him that Tamez was
in this house. Because neither version of the facts is more
favorable to the Tamezes, we will consider both as possibilities.
The parties agree that Misiaszek stood on the porch, announced
himself as a police officer, opened the screen door, and looked to
see if anyone was in the house. Tamez does not contest Culin's
testimony that Misiaszek asked Tamez, "Are you all right, sir?"

Misiaszek claimed that he peered inside the door frame to see if
anyone was inside, whereas Tamez apparently claimed that Misiaszek
fully stepped into the house when he announced himself.3 Taking
the evidence in the light most favorable to the Tamezes, we will
assume that Misiaszek actually entered the house.
2
In view of the evidence as the Tamezes present it, we now
consider whether Misiaszek's entry violated Tamez's rights under
the Fourth Amendment. This question is different from the average
search and seizure case, because this is a civil suit and because
it is before us in the context of a grant of JML on a qualified
immunity question.
The Supreme Court has stated in Siegert v. Gilley that the
first step in our inquiry must be whether the Tamezes' assertions
state a Fourth Amendment claim at all. 500 U.S. 226, 232, 111
S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991) ("A necessary concomitant
to the determination of whether the constitutional right asserted
by a plaintiff is "clearly established' at the time the defendant
acted is whether the plaintiff has asserted a violation of a
constitutional right at all."). The Fourth Amendment requires
that:
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue,
but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the
3Tamez did not testify because he died before the trial.
For most of Tamez's side of the story, the court relied on his
response to interrogatories taken pursuant to his separate
conviction for attempted capital murder. We discuss the use of
interrogatory evidence in section IV of this opinion.

persons or things to be seized.
U.S. Const. amend. IV. Tamez asserted that Misiaszek's entry into
his home was an unreasonable search under the Fourth Amendment, and
it was well established at the time of this incident in 1991 that
a warrantless search of a home may be unconstitutional under the
Fourth Amendment. See, e.g., Payton v. New York, 445 U.S. 573,
587-89, 100 S.Ct. 1371, 1381-82, 63 L.Ed.2d 639 (1980); Thomas v.
Kippermann, 846 F.2d 1009, 1011 (5th Cir.1988); Carnejo-Molina v.
INS, 649 F.2d 1145, 1149 (5th Cir. Unit A 1981). Misiaszek
contends that, to the extent that his entry into the house was a
search under the Fourth Amendment, it was reasonable under the
circumstances. Therefore, as an initial matter, we find that the
Tamezes state a claim under the Fourth Amendment, the threshold
showing that Siegert requires.
Next, deciding whether Misiaszek's conduct actually violated
the Fourth Amendment turns on the following question: was
Misiaszek's intrusion into Tamez's home unreasonable under the
circumstances? See Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct.
1801, 1803, 114 L.Ed.2d 297 (1991) ("The touchstone of the Fourth
Amendment is reasonableness."). Misiaszek claims that the brief
intrusion was justified by the need to make sure no one was injured
by the gunshots that prompted the "shots fired" call. Therefore
the narrow question before us is whether it is reasonable under the
Fourth Amendment for a police officer, responding to a nighttime
"shots fired" call, to step into the front door of a home without
a warrant to ensure that no one inside has been hurt.
The text of the Fourth Amendment does not state conclusively

what kinds of searches are reasonable, but the Supreme Court has
created two important presumptions in this area. First, the Court
has held that police officers generally must conduct searches
pursuant to probable cause and with a valid search warrant. Katz
v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d
576 (1967). This is merely a presumption, however, and there are
several exceptions to the probable cause and warrant requirements,
including investigatory detentions, searches incident to a valid
arrest, seizure of items in plain view, exigent circumstances,
consent searches, vehicle searches, container searches, and
searches in which the special needs of law enforcement make the
probable cause requirement impracticable. See generally David
Orlin, et al., Warrantless Searches and Seizures, 85 Geo. L.J. 847,
847 (1997) (collecting cases).
Second, the Court has held that warrantless entries into the
home are presumptively unreasonable. Payton v. New York, 445 U.S.
573, 587, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980). Again,
however, this is merely a presumption; the Court has also held
that exigent circumstances will justify warrantless searches or
arrests. See Minnesota v. Olson, 495 U.S. 91, 100, 110 S.Ct. 1684,
1690, 109 L.Ed.2d 85 (1990); Welsh v. Wisconsin, 466 U.S. 740,
749-50, 104 S.Ct. 2091, 2097-98, 80 L.Ed.2d 732 (1984); see also
United States v. Richard, 994 F.2d 244, 247 (5th Cir.1993).
Therefore, a showing of exigent circumstances will rebut both
presumptions. Under exigent circumstances, even a warrantless
search does not violate the Fourth Amendment, so long as the scope
of the search is no broader than necessary to deal with the

exigency. Warden v. Hayden, 387 U.S. 294, 299, 87 S.Ct. 1642,
1646, 18 L.Ed.2d 782 (1967); United States v. Rico, 51 F.3d 495,
500-01 (5th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 220, 133
L.Ed.2d 150 (1995).
The determination of whether exigent circumstances justified
a warrantless search is a mixed question of law and fact. United
States v. Hudson, 100 F.3d 1409, 1417 (9th Cir.1996); Cf. Ornelas
v. United States, --- U.S. ----, ----, 116 S.Ct. 1657, 1661-62, 134
L.Ed.2d 911 (1996) (the existence of reasonable suspicion or
probable cause are mixed questions of law and fact); United States
v. McConney, 728 F.2d 1195, 1199-1205 & n. 4 (9th Cir.) (en banc)
(probable cause and exigent circumstances implicate very similar
standard of review concerns), cert. denied, 469 U.S. 824, 105 S.Ct.
101, 83 L.Ed.2d 46 (1984).
The question of whether exigent circumstances justified a
warrantless search has two parts. First, as a factual matter, the
jury (or judge in a bench trial) must sit as a finder of fact,
deciding which facts (alleged to form the basis for the claim of
exigency) are established by the evidence. Cf. Ornelas, --- U.S.
at ----, 116 S.Ct. at 1661-62 (first step of probable cause inquiry
involves determination of historical facts leading up to stop or
search). We will reverse a jury's findings regarding the existence
of facts only for clear error. United States v. Howard, 106 F.3d
70, 74 (5th Cir.1997). Second, the court must decide, as a matter
of law, whether the facts that have been established, as a matter
of law, create exigent circumstances sufficient to justify a
warrantless search. This is a legal determination, which we review

de novo. Hudson, 100 F.3d at 1416; United States v. Tibolt, 72
F.3d 965, 969 (1st Cir.1995), cert. denied, --- U.S. ----, 116
S.Ct. 2554, 135 L.Ed.2d 1073 (1996); United States v. Anderson,
981 F.2d 1560, 1567 (10th Cir.1992) ("Although we accept underlying
fact findings unless they are clearly erroneous, "the determination
of whether those facts satisfy the legal test of exigency is
subject to de novo review.' ") (quoting United States v. Stewart,
867 F.2d 581, 584 (10th Cir.1989)).
At trial, the jury explicitly found that exigent circumstances
did not exist. However, the court erroneously instructed the jury
to answer both the factual question and the legal question. The
jury questionnaire read:
Do you find from a preponderance of the evidence that there
existed one or more exigent circumstances, as these have been
defined to you in the jury instruction, that otherwise
justified the investigation of the "shots fired" call
conducted by Defendant Misiaszek?
(emphasis added). Although the question of whether certain
conditions were present is surely a question for the jury, the
legal question of whether those circumstances justified Misiaszek's
actions is a legal question that should have been determined by the
court.
As we have stated, we review the jury's determinations of fact
for clear error and the court's conclusions of law de novo. It is
not clear, in this case, whether the jury found that facts did not
exist or whether it found that the circumstances did not, as a
matter of law, justify Misiaszek's search. It simply answered the

question above: "No."4 However, in this case, the parties agree to
most of the relevant facts. The family does not dispute that Felix
Tamez fired a pistol in his back yard, that Misiaszek was
responding to a "shots fired" call at night in a residential
neighborhood, that the officers had not yet located the gun, that
officers recognized Marmolejo as a suspect in another crime, or
that Misiaszek stepped just into the house without a search
warrant. The jury did not need to sit as a factfinder to determine
whether these facts and circumstances existed, because the parties
agree on virtually all relevant facts. Therefore, we will proceed
to determine de novo whether the stipulated facts, in the light
most favorable to the Tamezes, justified Misiaszek's brief,
warrantless search. In making this determination, we are to
4In its jury instructions, the court defined exigent
circumstances thus:
The exigent circumstances exception to the Fourth
Amendment warrant requirement will justify a
warrantless search when that search is made for one or
more of the following reasons:
1) to render emergency aid or assistance to persons
reasonably believed to be in distress or need of
assistance; and/or,
2) to prevent destruction of evidence or contraband;
and/or,
3) to protect officers from other suspects or persons
from whom they reasonably believe may be present,
and if so, whom they reasonably believe may be
armed and dangerous.
In assessing whether any one or more of the
foregoing exigencies applies, you must use an objective
standard of reasonableness in assessing the conduct of
the officer. That is, you must consider all the facts
and circumstances that existed at the time that you
find the warrantless "search" to have occurred.

consider the context and circumstances as they would appear to a
reasonable and prudent police officer standing in Misiaszek's
shoes. United States v. Riley, 968 F.2d 422, 425 (5th Cir.), cert.
denied, 506 U.S. 990, 113 S.Ct. 507, 121 L.Ed.2d 442 (1992).
The Supreme Court has found as a matter of law that exigent
circumstances will justify a warrantless search or seizure in many
circumstances: when there is probable cause for the search or
seizure and there is an imminent danger that someone will destroy
evidence, Cupp v. Murphy, 412 U.S. 291, 294-96, 93 S.Ct. 2000,
2003-04, 36 L.Ed.2d 900 (1973), when the safety of law enforcement
officers or the general public is threatened, Hayden, 387 U.S. at
298-99, 87 S.Ct. at 1645-46, or when a suspect is likely to flee
before the officer can obtain a warrant, Minnesota v. Olson, 495
U.S. 91, 100, 110 S.Ct. 1684, 1689-90, 109 L.Ed.2d 85 (1990).
There is no evidence in the record that there was any threat
of flight or the destruction of evidence. On the other hand, an
officer in Misiaszek's position reasonably could have believed that
the safety of the general public, or even the safety of the police
officers, created exigent circumstances. At the date of the
incident in 1991, the Supreme Court had already established the
exigent circumstances exception to the warrant requirement of the
Fourth Amendment. See, e.g., Hayden, 387 U.S. at 298-99, 87 S.Ct.
at 1645-46. However, few cases decided before that date considered
whether similar circumstances are exigent enough to justify a
warrantless search.5
5Several cases decided since 1991 have presented almost
identical circumstances. See, e.g., Dickerson v. McClellan, 101
F.3d 1151, 1160 (6th Cir.1996) ("shots fired" call justified

In Hayden, the Supreme Court held that police officers were
justified in conducting a warrantless search of a house to which
the victims of an armed robbery had chased the robber. Id. at 297,
87 S.Ct. at 1645. Inside defendant Hayden's house, police found a
pistol, shotgun, and ammunition, as well as clothes that matched
the description of the robber; all were admitted into evidence
against Hayden at trial. Id. In a petition for habeas corpus,
Hayden claimed that the evidence should have been excluded at trial
as the fruits of a warrantless search illegal under the Fourth
Amendment. The Court held that the search was not unconstitutional
because the presence of weapons on the scene and the potential for
violence created an exigency necessitating quick action:
The Fourth Amendment does not require police officers to delay
in the course of an investigation if to do so would gravely
endanger the lives of others. Speed here was essential, and
only a thorough search of the house for persons and weapons
could have insured that Hayden was the only man present and
that the police had control of all weapons which could be used
against them or to effect an escape.
Id. at 298-99, 87 S.Ct. at 1646.
In the Fifth Circuit, we have not decided many cases closely
on point. However in our cases preceding the night of the search
in this case, we have held more generally that the presence of an
armed suspect who poses an immediate threat to citizens can justify
warrantless protective sweep). However, in considering whether
the search violated a clearly established right, we consider only
the law as established when the official acted, not at the time
the case is decided. See, e.g., United States v. Lanier, ---
U.S. ----, ----, 117 S.Ct. 1219, 1227, 137 L.Ed.2d 432 (1995) ("a
general constitutional rule already identified in the decisional
law may apply with obvious clarity to the specific conduct in
question, even though "the very action in question has [not]
previously been held unlawful,' ") (quoting Anderson, 483 U.S. at
640, 107 S.Ct. at 3039).

warrantless searches. In United States v. Jackson, police officers
arrested two men, as they were leaving a hotel room, for selling
cocaine. 700 F.2d 181, 184 (5th Cir.), cert. denied sub nom.,
Hicks v. United States, 464 U.S. 842, 104 S.Ct. 139, 78 L.Ed.2d 132
(1983). Although the officers had been told that the suspects were
armed, they did not find a gun during a patdown incident to the
arrest. Id. We held that exigent circumstances permitted police to
search a motel room even after the arrest of two suspects, because
the officers suspected that the arrestees were not acting alone,
and the officers had reason to believe that other suspects had a
gun in one of the motel rooms. Id. at 190.
In McGeehan v. Wainwright, we held that exigent circumstances
justified a warrantless police search of a trailer after four bank
robbery suspects exited it. 526 F.2d 397, 399 (5th Cir.1976),
cert. denied, 425 U.S. 997, 96 S.Ct. 2214, 48 L.Ed.2d 823 (1975).
In that case, as in this one, police knew that a weapon had been
used about an hour earlier, and none of the suspects who exited the
trailer carried the weapon. Id. We held that the police could
reasonably suspect that "additional confederates might be concealed
inside the darkened trailer with the missing shotgun," thus
justifying a warrantless protective sweep of the trailer. Id.
Cases from other circuits have established that the firing of
a weapon in a residential neighborhood at night creates exigent
circumstances. In United States v. Arcobasso, a case similar to
ours, the Eighth Circuit found that a "shots fired" call created
circumstances exigent enough to justify a warrantless search of a
house. 882 F.2d 1304 (8th Cir.1989). In that case, police

officers responded to a nighttime call indicating that shots had
been fired in defendant Arcobasso's residence. Id. at 1305. When
they arrived, the officers heard the clicking sound of a pistol
being "dry fired," or the sound of the trigger being pulled on an
unloaded weapon. When Arcobasso saw the officers, he fled through
an open window and tried to escape. The officers stopped him,
patted him down for weapons, and found none. Id.
When police asked Arcobasso if anyone else was in the house,
Arcobasso responded only, "Rick." Believing that there may be a
gunshot victim inside, the officers entered Arcobasso's house
without consent and without a warrant, where they seized a loaded
shotgun in plain view, a revolver, spent and live ammunition, and
one Rick Gaines. Id. The Eighth Circuit held that the officers
could reasonably believe from the "shots fired" call that a person
in the house may have required immediate assistance, or that "Rick"
might have posed a danger to the officers' safety. Id. at 1307.
The court therefore held that the items seized were admissible.
Id.
The officers on Tamez's front porch were responding to a
"shots fired" call, which, if accurate, necessarily involved a
firearm of some sort. The officers recognized Marmolejo as the
target of a separate criminal investigation, and they knew he did
not own the house. They could hear noise in the house, but could
not determine, without at least breaking the threshold of the
doorway, whether anyone was inside. The officers had not yet
located the gun used to fire the reported shots, nor had they
conclusively determined that there were no shooting victims or

hostages in the house. Under these circumstances, Misiaszek could
reasonably have harbored concern for the lives of innocent people,
including Tamez himself, or for the lives of Misiaszek's fellow
officers. Therefore, under the cases cited, we find that the
undisputed circumstances of the instant case were sufficiently
exigent as a matter of law to justify Misiaszek's brief,
warrantless entry into the house.
The Tamezes further claim that, to the extent any exigent
circumstances existed, those circumstances were created by
Misiaszek and the other police officers. We have held that the
government may not justify a warrantless search with exigent
circumstances of its own making. United States v. Thompson, 700
F.2d 944, 950 (5th Cir.1983). However, the threat that someone has
been shot or is being held against their will inherent in a "shots
fired" call were not created by the San Marcos Police, but by
Tamez's discharge of a firearm in a residential neighborhood. The
Tamezes' claim that the officers caused the exigent circumstances
is without merit.
To summarize our Fourth Amendment analysis: The question of
whether exigent circumstances justify a warrantless search is a
mixed question of law and fact. Most of the facts in this case are
not in dispute. As a matter of law, we hold that the exigent
circumstances in this limited case justified the brief, warrantless
intrusion into Tamez's home, and we find that Misiaszek did not
violate Tamez's Fourth Amendment rights. This holding is
sufficient to end our inquiry. If the Misiaszek did not violate
Tamez's Fourth Amendment rights by opening the screen door and

stepping inside the house, Misiaszek is not only protected by
qualified immunity, but there is also no violation of
constitutional rights to form the basis of a section 1983 claim in
the first instance. The magistrate judge did not err in granting
JML on qualified immunity grounds.
B
The court also granted JML on the Tamezes' state law
negligence claims, holding that they are barred by the Texas
doctrine of official immunity. Under Texas law, "[g]overnment
employees are entitled to official immunity from suit arising from
the performance of their (1) discretionary duties in (2) good faith
as long as they are (3) acting within the scope of their
authority." City of Lancaster v. Chambers, 883 S.W.2d 650, 653
(Tex.1994).
As we decided above, Misiaszek was clearly performing a
discretionary duty when, responding to the shots fired call, he
decided to check in the house to see if anyone was injured. Under
Texas law, if an action involves personal deliberation, decision,
and judgment, it is discretionary. Id. at 654. Actions that
require obedience to orders or the performance of a duty to which
the actor has no choice are ministerial. Id. Our conclusion is
therefore no different in the state law context: Misiaszek's
actions clearly involved judgment and discretion, not ministerial
following of orders.
The "good faith" inquiry is not well defined in Texas law of
official immunity. See Travis v. City of Mesquite, 830 S.W.2d 94,
103 (Tex.1992) (Cornyn, J., concurring). The Texas Supreme Court

recently applied the following formulation of good faith in a case
involving a high-speed chase on an interstate highway:
We hold that an officer acts in good faith in a pursuit case
if: a reasonably prudent officer, under the same or similar
circumstances, could have believed that the need to
immediately apprehend the suspect outweighed a clear risk of
harm to the public in continuing the pursuit.
Chambers, 883 S.W.2d at 656. The court went on to hold that, "To
controvert the officer's summary judgment proof on good faith, the
plaintiff must ... show that "no reasonable person in the
defendant's position could have thought the facts were such that
they justified defendant's acts.' " Id. at 657. There is no Texas
case on point establishing what would establish good faith in the
context of a brief, warrantless intrusion into a home. By analogy,
we find that, under Texas law, an officer would show good faith if
a reasonably prudent officer, under the same or similar
circumstances, could have believed that the need to immediately
enter the home outweighed a homeowner's rights under the
Constitution. See Farm Credit Bank of Texas v. Guidry, 110 F.3d
1147, 1149 (5th Cir.1997) (when state law is silent, court must
make "Erie guess" as to how state supreme court would rule). The
Texas Supreme Court has given us additional guidance, holding that
the objective test for "good faith" was derived substantially from
the standard for qualified immunity, which we discussed above.
Chambers, 883 S.W.2d at 656.
As we have already discussed in the Fourth Amendment context,
we find that Misiaszek's actions on the night in question were
objectively reasonable. A reasonable police officer in the same
situation could have believed that the exigencies of the moment

called for a warrantless, minor intrusion into Tamez's house.
Therefore we find as a matter of law that Misiaszek was acting in
good faith, as defined by Texas law.
Finally, we consider whether Misiaszek was acting within the
scope of his authority. An officer acts within the scope of his
authority if he discharges the duties generally assigned to him.
Id. at 658. Misiaszek has conclusively shown that he was on the
job, investigating a "shots fired" call, fulfilling the duties of
his office. There is no question that he was acting within the
scope of his authority. Therefore, we find that Misiaszek has
proven all that he must in order to make a showing of official
immunity. We agree with the magistrate that Misiaszek was
officially immune from the Tamezes' state negligence claims as a
matter of law.
IV
The Tamezes also challenge the magistrate judge's decision at
trial to allow Misiaszek and the City to use Felix Tamez's sworn
answers to interrogatories from his separate but related charge of
attempted capital murder. We hold that it was not reversible error
for the court to admit the statements into evidence. Felix Tamez
was, of course, not available to testify at trial; only Tamez and
defendant Misiaszek witnessed the sequence of events in the house.
The Tamezes originally moved the court to allow the interrogatories
into evidence to detail Tamez's account of events. The court
granted plaintiffs' motion and simultaneously held that, if
plaintiffs could introduce testimony from the interrogatories, the
defendants could as well. The magistrate judge held that the

interrogatory response had special indicia of reliability and that
the special circumstance of Tamez's death before trial warranted
the admission of the interrogatory answers. The Tamezes did not
object to the court's decision to allow Misiaszek and the City to
use Tamez's interrogatory responses.
District courts are given broad discretion in rulings on the
admissibility of evidence. Rock v. Huffco Gas & Oil Co., 922 F.2d
272, 277 (5th Cir.1991). We will reverse the court's evidentiary
rulings only when the court has clearly abused its discretion and
a substantial right of a party is affected. Id.; see also
Fed.R.Evid. 103(a).
As an initial matter, we seriously question the use of sworn
responses to interrogatories as direct evidence at trial, because
such responses are not subject to cross-examination. The Federal
Rules of Evidence explicitly discourage the admission of such
direct testimony by an out of court statement not subject to cross
examination. The Rules allow into evidence:
Testimony given as a witness at another hearing of the same or
a different proceeding, or in a deposition taken in compliance
with law in the course of the same or another proceeding, if
the party against whom the testimony is now offered, or in a
civil action or proceeding, a predecessor in interest, had an
opportunity and similar motive to develop the testimony by
direct, cross, or redirect examination.
Fed.R.Evid. 804(b)(1) (emphasis added).
However, the Tamezes were the party that asked the court to
allow the use of the interrogatories at trial. They can hardly
contend now that they were prejudiced by the defendants'
introduction of the interrogatory responses into evidence.
Similarly, the Tamezes cannot complain that Tamez was prejudiced by

the introduction of evidence from a criminal proceeding against
him. The Tamezes' lawyer, in his opening statement, raised the
fact that the state had charged Tamez with attempted capital murder
in the incident, as well as the fact that Tamez pleaded nolo
contendere. Furthermore, the Tamezes did not object in a timely
fashion to the district court's decision to allow Misiaszek and the
City to use the interrogatory responses. Finally, although the
court did not characterize it as such, Tamez's responses to the
interrogatory would have been admissible at trial as admissions of
a party opponent under Fed.R.Evid. 801(d)(2)(A) and (B). Therefore
we find that the court did not abuse its discretion in admitting
the interrogatory testimony.6
V
Therefore we AFFIRM the magistrate judge's grant of JML
holding that Misiaszek is immune from suit under federal and state
law, AFFIRM the JML in favor of the City of San Marcos, and AFFIRM
the dismissal of plaintiffs' claims.

6The family also challenges the magistrate judge's entry of
judgment as a matter of law for the City of San Marcos. After a
careful review of the law and the record in this case, we find
that the magistrate judge did not err, and we affirm based on the
magistrate judge's reasoning.