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                                                                       [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 18-10498
                               ________________________

                         D.C. Docket No. 1:16-cv-24267-CMA


JUAN L. PEREZ,
MARIA A. POSADA,

                                                                        Plaintiffs-Appellants,

                                     versus

CITY OF SWEETWATER,
RAFAEL DUARTE, et al.,

                                                                      Defendants-Appellees.
                               ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            ________________________

                                        (May 3, 2019)

Before WILLIAM PRYOR and NEWSOM, Circuit Judges, and ROSENTHAL, *
Chief District Judge.

PER CURIAM:


       *
         Honorable Lee H. Rosenthal, Chief United States District Judge for the Southern District
of Texas, sitting by designation.
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      Careful district judges anxious to protect the trial record and avoid retrial may

submit cases to the jury, even when the judge doubts that the evidence is sufficient

to support the liability finding and damages the plaintiff seeks. If the jury returns a

defense verdict, the judge usually needs only to enter judgment. But when, as here,

the jury finds liability and imposes a large damages award, the district judge must

decide whether to displace the verdict by granting judgment as a matter of law. The

district judge took that step here, and the plaintiff appealed, requiring us to decide if

the jury had any reasonable basis to return the verdict it did. We agree with the

district court that this record did not present sufficient evidence to support the

verdict, and we affirm.

I.    Background

      A jury found that the City of Sweetwater, Florida was liable under 42 U.S.C.

§ 1983 for injuries that Juan L. Perez suffered when a car fleeing police pursuit hit

Perez’s vehicle at a high speed. The jury awarded Perez $1,000,000 in compensatory

damages. After trial, the City renewed its motion for judgment as a matter of law,

which the district court granted, finding that no reasonable jury could have found the

City liable under § 1983 based on the trial evidence. Perez appeals the district

court’s decision during trial to exclude certain evidence and its decision after trial to

grant judgment for the City as a matter of law.




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      Early the morning of January 2, 2012, Juan Perez left his home in Miami,

Florida to drive to work. As he was driving east on 8th Street, he noticed four police

cars stopped behind “one dark car.” Officer Richard Brioso, a City police officer,

had stopped the “dark car,” a Mercedes Benz, for reckless driving. Officer Brioso

testified at trial that the Mercedes had been traveling at a high speed and appeared

to be racing another car. At trial, the driver testified that he was not racing another

car, but he did not recall how fast he was driving. The passenger had been asleep

and could not dispute Officer Brioso’s testimony.

      Three nearby City police officers—Officers Rafael Duarte, Armando

Gonzalez, and Domingo Benito—responded to Officer Brioso’s dispatch report of

the stop. The Mercedes driver, Felipe A. Torrealba, gave the officers a Texas

identification card, telling them that he did not have a Florida driver’s license. The

officers did a routine run of Torrealba’s name through identification databases and

found a Florida driver’s license with a picture matching Torrealba’s appearance.

The picture showed a large tattoo on Torrealba’s neck. When the officers asked

Torrealba about his tattoo, Torrealba ran toward the Mercedes’s driver-side door.

The police officers ordered him to stop, but he kept going. The officers gave chase.

      Officer Duarte was closest to Torrealba, but Torrealba got to the Mercedes

first. The officers testified at trial that at that point, they saw Torrealba reach into

his waistband, pull out a handgun, and aim it at Officer Duarte. Officer Duarte yelled

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“Oh, shit[,] gun,” and leaned “back towards the driver[‘s] rear door” for cover,

holding onto the “middle pillar of the vehicle.” The Mercedes started moving,

dragging Officer Duarte. Officers Gonzalez and Brioso fired 23 rounds at Torrealba,

but he raced away. Officer Benito testified that he got into his patrol car to give

chase but “had no chance” because the Mercedes was already “two blocks ahead.”

At trial, Torrealba testified that he did not have a gun on that day, disputing the

officers’ testimony.

      Perez was still driving on 8th Street. He looked into his rearview mirror and

saw “light coming like a lightning.” He could do nothing more than “say, [s]orry,

Maria,” before the Mercedes hit his truck at high speed. Perez recalled nothing after

seeing the light and feeling the impact. He regained consciousness upside down in

his crumpled truck, smelling leaking gasoline. The Fire Rescue Squad had to free

him from the truck. Perez was hospitalized for 14 days.

      Officer Benito was the first to arrive at the collision scene. He saw the truck

but did not check on the occupants, because his “main concern was [that Torrealba

was] armed with a handgun and” on the loose. The Mercedes had crashed into a

palm tree “30, 40 yards away” from Perez’s truck. A bystander told Officer Benito

that a man had jumped out of the Mercedes and into a nearby canal. Officer Benito

radioed dispatch to set up a perimeter blockade in the area.




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      The City police officers did not find Torrealba on January 2, 2012, and they

did not find a firearm or evidence that Torrealba had fired a gun from the Mercedes,

the canal, or the crash area. Torrealba was finally arrested in February 2013.

Torrealba pleaded guilty to resisting arrest with violence and to resisting arrest

without violence for his actions on January 2, 2012. He received a three-year

sentence.

      Perez and his wife, Maria A. Posada,1 sued the City and Officers Duarte,

Brioso, and Gonzalez in state court, asserting claims under 42 U.S.C. § 1983 and for

negligence.       Perez alleged that his injuries were caused by the officers’

unconstitutional use of deadly force. He alleged that the City’s custom relating to

conducting vehicle stops to enforce a towing ordinance to obtain money or property

for the City, and the City’s custom relating to, and training in, using deadly force

and engaging in high-speed chases, violated his Fourteenth Amendment substantive

due-process rights. The City and the officers removed. The district court dismissed

the claims against Officer Duarte, with prejudice, and denied Officers Brioso’s and

Gonzalez’s motions for summary judgment. Officers Brioso and Gonzalez filed an

interlocutory appeal, and Perez’s claims against them were not tried with his claims

against the City.




      1
            Perez and Posada are referred to collectively as Perez.

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      Perez voluntarily dismissed his negligence claim against the City during trial.

The City moved for judgment as a matter of law on the § 1983 claims after Perez

rested his case-in-chief, and renewed the motion at the close of the evidence. Perez

asserted two bases for liability against the City: (1) that the City had an

unconstitutional policy or custom relating to the police use of deadly force or

conducting high-speed pursuits, causing a violation of Perez’s Fourteenth

Amendment due-process rights; and (2) that the City was deliberately indifferent to

the need for different or more officer training or supervision as to deadly force or

high-speed pursuits. The district court instructed the jury on the elements under each

theory.   The jury found that the City was deliberately indifferent to an

unconstitutional policy or custom as to using deadly force, but not as to conducting

high-speed pursuits, and was deliberately indifferent to the need for officer training

on both using deadly force and conducting high-speed pursuits. The jury awarded

Perez $1,000,000 in compensatory damages, and the court entered final judgment in

that amount.

      The City filed a timely renewed motion for judgment as a matter of law. See

FED. R. CIV. P. 50(b). The court granted the City’s motion, finding that the evidence

did not allow a reasonable jury to conclude that the City had a policy or custom of

“conscience-shocking use of lethal force” or that the officers’ training was deficient

as to lethal force or the conducting of high-speed pursuits following traffic stops.

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The district court vacated the final judgment based on the verdict and entered final

judgment for the City.

      In this appeal, Perez challenges the district court’s decision to exclude from

the trial evidence parts of affidavits submitted in 2017 by two Miami-Dade

detectives to get arrest warrants against two former City police officers for

misconduct they allegedly committed on duty. Perez also challenges the district

court’s decision to grant judgment as a matter of law, contending that there was

enough trial evidence for a reasonable jury to find that the City police department

had a custom of using unlawful means to enforce a towing ordinance, in order to

collect the fines and personal property from the vehicles, and that this custom was

the moving force behind the constitutional violation and Perez’s injuries. Perez also

argues that there was enough evidence for a reasonable jury to find that the City was

deliberately indifferent to the need for different or additional officer training on

using deadly force and engaging in high-speed vehicle pursuits. Although Perez’s

innocent-bystander status evokes sympathy, the evidence simply does not support

the jury’s verdict.

II.   The Standards of Review

      A.     Evidentiary Rulings

      “The evidentiary rulings of the district court are reviewed for a clear abuse of

discretion.” Aycock v. R.J. Reynolds Tobacco Co., 

, 1068 (11th Cir.

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2014). “[T]he deference that is the hallmark of abuse-of-discretion review[] requires

that we not reverse an evidentiary ruling of a district court unless the ruling is

manifestly erroneous.” United States v. Barton, 

, 1330 (11th Cir.

2018) (quoting United States v. Frazier, 

, 1259 (11th Cir. 2004)). “A

district court abuses its discretion ‘if it applies an incorrect legal standard, applies

the law in an unreasonable or incorrect manner, follows improper procedures in

making a determination, or makes findings of fact that are clearly erroneous.’”

(quoting Brown v. Ala. Dep’t of Transp., 

,

1173 (11th Cir. 2010)).

      B.     Judgment as a Matter of Law

      When “a party has been fully heard on an issue during a jury trial and the court

finds that a reasonable jury would not have a legally sufficient evidentiary basis to

find for the party on that issue,” the court may either “resolve the issue against the

party” or “grant a motion for judgment as a matter of law against the party on a claim

or defense that, under the controlling law, can be maintained or defeated only with

a favorable finding on that issue.” FED. R. CIV. P. 50(a)(1). “Judgment as a matter

of law for a defendant is appropriate[] ‘when there is insufficient evidence to prove

an element of the claim, which means that no jury reasonably could have reached a

verdict for the plaintiff on that claim.’” Cadle v. GEICO Gen. Ins. Co., 

, 1121 (11th Cir. 2016) (quoting Collado v. United Parcel Serv., Co., 

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1143, 1149 (11th Cir. 2005)). A district court may grant judgment as a matter of

law only “where reasonable jurors could not arrive at a contrary verdict.” Munoz v.

Oceanside Resorts, Inc., 

, 1344–45 (11th Cir. 2000) (alteration and

quotation omitted). “In considering a Rule 50(b) motion after the jury verdict, ‘only

the sufficiency of the evidence matters. The jury’s findings are irrelevant.’” 

(quoting Connelly v. Metro Atlanta Rapid Transit Auth., 

, 1363 (11th Cir. 2014)).

       An appellate court reviews a “district court’s ruling on a motion for judgment

as a matter of law de novo, considering the evidence and the reasonable inferences

drawn from it in the light most favorable to the nonmoving party.” Eghnayem v.

Bos. Sci. Corp., 

, 1313 (11th Cir. 2017).

III.   Discussion

       “As a general rule, to prevail on a claim of a substantive due-process violation,

a plaintiff must prove that a defendant’s conduct ‘shocks the conscience.’” Nix v.

Franklin Cty. Sch. Dist., 

, 1375 (11th Cir. 2002) (quoting Cty. of

Sacramento v. Lewis, 

, 846–47 (1998)). “[O]nly a purpose to cause

harm unrelated to the legitimate object of arrest will satisfy the element of arbitrary

conduct shocking to the conscience, necessary for a due process violation.” 

. An official’s “actions ‘intended to injure in some way unjustifiable

by any government interest’ are those ‘most likely to rise to the conscience-shocking

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level.’” 

(quoting 

); see also Fennell v.

Gilstrap, 

, 1217 (11th Cir. 2009); Cockrell v. Sparks, 

,

1311 (11th Cir. 2007).

       “[T]he bar to establish municipal liability is very high.”          Simmons v.

Bradshaw, 

, 1169 (11th Cir. 2018). “Plaintiffs who seek to impose

liability on local governments under § 1983 must prove that ‘action pursuant to

official municipal policy’ caused their injury.” Connick v. Thompson, 

,

60–61 (2011) (quoting Monell v. Dep’t of Soc. Servs., 

, 691 (1978));

see Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 

, 404 (1997); City of

Canton v. Harris, 

, 385–86 (1989). The plaintiff must “demonstrate

that, through its deliberate conduct, the municipality was the ‘moving force’ behind

the injury alleged.” Bryan 

(emphasis in original). “Official

municipal policy includes the decisions of a government’s lawmakers, the acts of its

policymaking officials, and practices so persistent and widespread as to practically

have the force of law.” 

. A custom requires the plaintiff to

identify evidence showing “[a] pattern of similar constitutional violations.” Craig

v. Floyd Cty., 

, 1310 (11th Cir. 2011) (quoting 

).

       A municipality’s “culpability for a deprivation of rights is at its most tenuous

where a claim turns on a failure to train.” 

. A municipality’s

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“failure to train its employees in a relevant respect must amount to ‘deliberate

indifference to the rights of persons with whom the untrained employees come into

contact.’” 

(quoting 

). “[W]hen city

policymakers are on actual or constructive notice that a particular omission in their

training program causes city employees to violate citizens’ constitutional rights, the

city may be deemed deliberately indifferent if the policymakers choose to retain that

program.” 

of similar constitutional violations by untrained

employees is ‘ordinarily necessary’ to demonstrate deliberate indifference for

purposes of failure to train.” 

(quoting Bryan 

).

      Because this appeal focuses on the sufficiency of the evidence, we first

consider whether the district court abused its discretion in excluding certain trial

evidence. Finding no error, we then analyze whether the admitted evidence was

enough for a reasonable jury to find that the City had an unconstitutional custom

relating to using deadly force or engaging in high-speed vehicle pursuits, or was

deliberately indifferent to the need for more or different training on using deadly

force and engaging in high-speed vehicle pursuits. Again, we find no error.



      A.     The Evidentiary Ruling

      Perez sought to admit arrest-warrant affidavits executed by two Miami-Dade

detectives in 2017 to obtain warrants against two former City police officers for

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misconduct allegedly committed while on duty in 2012. The affidavits detailed eight

incidents in which the former officers allegedly unlawfully entered houses, took

property, towed vehicles, beat and tasered suspects while interrogating them, and at

least once waterboarded a suspect. None of the eight incidents involved officers

using deadly force or conducting high-speed vehicle chases. One incident occurred

in September 2010, before the chase and crash here, but the other seven were after,

occurring between May and September 2012.

      The district court excluded the affidavit sections discussing the post-event

incidents, but admitted the introductory paragraphs and the description of the

September 2010 incident. Perez argues that the district court erred in excluding the

affidavit sections on the post-event incidents, because they would have “proven

several other instances of the same administrator turning a blind eye and actually

encouraging constitutional violations.” Appellant’s Reply Br. at 20 (emphasis

omitted).

      “Evidence is relevant if it has any tendency to make a fact more or less

probable than it would be without the evidence, and the fact is of consequence in

determining the action.” 

(citing FED. R. EVID. 401). “Even

if the evidence is relevant, the court may exclude it if its probative value is

substantially outweighed by a danger of ‘unfair prejudice, confusing the issues,




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misleading the jury, undue delay, wasting time, or needlessly presenting cumulative

evidence.’” 

R. EVID. 403).

      The events described in the excluded sections of the affidavits are evidence of

factual situations that have no similarity to this case. See Mercado v. City of

Orlando, 

, 1162 (11th Cir. 2005). The events described in the

excluded sections did not involve deadly force or high-speed vehicle pursuits. The

only similarities between the excluded incidents and the events here are that vehicles

were involved in both and some of the excluded incidents involved traffic stops.

Because the excluded sections of the affidavits discussed events that were so

dissimilar, they were of little to no relevance, and whatever relevance was present

was clearly outweighed by the risks of unfairly prejudicing the City and confusing

the jury. The district court was well within its discretion in excluding this evidence.

      B.     The City’s Custom

      Perez had to prove by a preponderance of the evidence that the City “had a

custom or policy that constituted deliberate indifference” to his Fourteenth

Amendment right to be free from the arbitrary, conscience-shocking use of deadly

force. McDowell v. Brown, 

, 1289 (11th Cir. 2004). Meeting this

burden required evidence of a “pattern of similar constitutional violations”

supporting a reasonable inference that the City had “such a longstanding and

widespread practice [relating to conscience-shocking deadly force] that it is deemed

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authorized by the policymaking official because they must have known about it but

failed to stop it.” 

(alteration and quotation omitted).

      There is no evidence of a written policy encouraging or authorizing police

officers to use conscience-shocking deadly force, and Perez presented no evidence

of similar prior incidents. He cites a prior high-speed pursuit by Officer Benito, but

this incident fails the similarity test; the pursuit there was authorized, caused no

injuries, and resulted in robbery suspects’ immediate arrest.

      Perez’s theory of liability was instead that a “culture of corruption” existed in

the City’s police department around the enforcement of a towing ordinance and

alleged wrongdoing by officers in the City police department’s General Investigation

Unit. The first problem is that there is no evidence that the stop, shooting, or chase

here had anything to do with police intending to seize Torrealba’s vehicle and have

it towed. The second problem is that the prior incidents Perez cites have nothing to

do with what the evidence here showed were the circumstances surrounding the stop,

the use of force, and the pursuit.

      Perez contends that the trial evidence supported a reasonable inference that

“the decision makers in the City had notice that their officers were using unnecessary

force and unlawful means to make use of the towing ordinance for the benefit of the

City and City officials.” Appellant’s Amended Br. at 26–30. Perez argues that “[i]t

is entirely reasonable for the jurors to conclude that if the City would tolerate illegal

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stops and investigations, unnecessary force against citizens[,] and unlawful taking

of their property[,] that the City would tolerate the level of force in this case.”

Appellant’s Reply Br. at 13.

      Perez’s arguments fail. He does not identify trial evidence of prior similar

incidents involving police officers confronted with a suspect they believed was

armed, who disregarded their orders, pointed a gun at an officer, and fled at high

speed. The district court correctly found that the evidence was not sufficient to allow

a reasonable jury to conclude that the City had a “longstanding and widespread

practice” of encouraging the conscience-shocking use of deadly force in similar

circumstances. 

(quoting Brown v. City of Fort Lauderdale,

, 1481 (11th Cir. 1991)).

      Nor does the evidence support “a direct causal link” between the alleged

custom of overly aggressive enforcement of the City towing ordinance and the crash

that caused Perez’s injuries. Cuesta v. Bd. of Miami-Dade Cty., 

, 967

(11th Cir. 2002) (quotation omitted); see Bryan 

(“[A] court

must carefully test the link between the policymaker’s inadequate decision and the

particular injury alleged.”). No evidence showed that the prospect of a towing fee

played any role in Officer Brioso stopping the Mercedes when he saw it speeding




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through the public streets in the predawn hours after New Year’s Day. 2 No evidence

showed that the towing ordinance played any role in the questioning of Torrealba

that followed and led to the discovery that he had provided a false Texas

identification and lied about not having a Florida license. No evidence showed that

towing had anything to do with the subsequent use of deadly force in response to

Torrealba’s undisputed disregard for police orders and the evidence that he drew a

handgun, pointed it at a police officer, and drove away at high speed. No evidence

showed that the “known or obvious consequences” of enforcing the towing

ordinance or chasing a fleeing suspect, especially one believed to be armed, would

be a conscience-shocking use of deadly force. Am. Fed. of Labor & Cong. of Indus.

Orgs. v. City of Miami, 

, 1187 (11th Cir. 2011) (quotation omitted).

       Perez asserts that the City ratified the officers’ allegedly unconstitutional

behavior by having “a ‘chaotic’ department”; “failing to conduct any internal

investigation after the incident”; failing to require Officers Gonzalez and Brioso to

make a written report after they fired their weapons at Torrealba; and sending “their

own crime scene units to sanitiz[e] the crime scene.” Appellant’s Amended Br. at

31, 34. But Perez identifies no evidence that the City’s policymakers reviewed the

officers’ actions “before they became final” or approved their “decision and the basis



       2
         While Torrealba denied racing another car, neither he nor his passenger could recall
whether they were speeding.
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for it.” Salvato v. Miley, 

, 1296 (11th Cir. 2015) (alteration and

quotation omitted). A reasonable jury could not have found that the City ratified the

officers’ actions.

      Having submitted the case to the jury despite the scant evidence, the district

court did what no trial judge relishes doing—granting judgment notwithstanding the

verdict because the evidence was insufficient to make it reasonable, as a matter of

law. The district court did not err in entering judgment as a matter of law for the

City as to Perez’s claim that the City had an unconstitutional custom that was the

moving force behind the constitutional violations and his injuries.

      C.     The City’s Failure to Train

      Perez’s failure-to-train theory fares no better. Perez had to prove by a

preponderance of the evidence that the City was deliberately indifferent to the need

for different or more officer training or supervision on using deadly force or

engaging in high-speed pursuits. The trial evidence made it unreasonable for the

jury to find “[a] pattern of similar constitutional violations by untrained employees,”

as needed to demonstrate deliberate indifference to the risk of constitutional

violations that was a moving force behind Perez’s injuries. 

;

.

      Perez pieced together arguments connected only by the fact that they generally

involved police encounters with vehicles. He argued, for example, that “during the

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relevant time, [the] officers were unrestricted when it came to making stops outside

their jurisdiction”; the “officers were often illegally towing cars without authority”;

the officers involved in this case did not receive, and were not required to know, the

City’s Standard Operating Procedures; and “the shooting officers were not properly

trained on the City’s policy against shooting into moving vehicles.” Appellant’s

Amended Br. at 37–38, 40–42. He generally argued that the City was “deficient in

its hiring practices” and that the officers here were “inexperienced and untrained.”

      But the arguments and evidence Perez presented were not of circumstances

“substantially similar” to the constitutional violation that Perez has asserted: a

conscience-shocking use of force and the high-speed pursuit of a fleeing suspect who

had lied in answering the officers’ questions and disregarded direct orders,

particularly given the testimony that the officers believed him to be armed.

. Perez’s evidence could not have put the City on actual

or constructive notice that its police officers required additional training or

supervision in the “particular area[s]” of deadly force or high-speed pursuits to avoid

the constitutional violations he alleged. Gold v. City of Miami, 

, 1351–

52 (11th Cir. 1998); see, e.g., 

(“Because those incidents are

not similar to the violation at issue here, they could not have put Connick on notice

that specific training was necessary to avoid this constitutional violation.”).

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      Perez argues that the officers’ “need for more or different training [was] so

obvious, and the inadequacy so likely to result in the violation of constitutional

rights, that the policymakers of the [C]ity can reasonably be said to have been

deliberately indifferent to the need.” Appellant’s Amended Br. at 45. Perez points

out that Officer Gonzalez, a new officer who was “never handed a copy of the City’s

standard operating procedures,” was unsure whether “the standard operating

procedures were reviewed with him.” 

Officer Gonzalez was at some

point “suspended or reprimanded for falsifying a police report or at the very least

not following police procedures.” 

this shows that if Officer Gonzalez

had had more experience or had read the procedures, that would have made any

difference at all, given the evidence as to what happened at the scene leading up to

the pursuit and crash. Perez’s allegations about Officer Gonzalez’s training are

insufficient for a reasonable jury to find the City liable for failure to train or

supervise. See 

–91 (“That a particular officer may be

unsatisfactorily trained will not alone suffice to fasten liability on the city . . . .

Neither will it suffice to prove that an injury or accident could have been avoided if

an officer had had better or more training.”).

      Evidence on the City’s training program came from Officer Brioso’s

testimony that all City police officers had to take “training classes” on deadly force

“either once a year or every six months” to “stay certified” with the Florida

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Department of Law Enforcement. This testimony does not support finding that the

City’s training regimen as to deadly force or high-speed pursuits was “so

obvious[ly]” inadequate and “so likely to result in the violation of constitutional

rights” that the City could “reasonably be said to have been deliberately indifferent.”

.

      The district court did not err in finding that no reasonable jury could conclude

that the City was deliberately indifferent to a need for training or supervision as to

deadly force or high-speed pursuits. The district court did not err in granting

judgment as a matter of law on the failure to train claim.

IV.   Conclusion

      The district court’s judgment for the City as a matter of law is AFFIRMED.




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