ROBERT I. REESE, JR. v. COUNTY OF SACRAMENTO
No. 16-16195
United States Court of Appeals, Ninth Circuit
FOR PUBLICATION
UNITED STATES
FOR THE NINTH CIRCUIT
ROBERT I. REESE, JR.,
Plaintiff-Appellant,
v.
COUNTY OF SACRAMENTO; DUNCAN
BROWN, Sacramento County
Sheriff’s Department Deputy (Badge
#1220); ZACHARY ROSE,
Sacramento County Sheriff’s
Department Deputy (Badge #832),
Defendants-Appellees.
No. 16-16195
D.C. No.
2:13-cv-00559-
GEB-KJN
ROBERT I. REESE, JR.,
Plaintiff-Appellee,
v.
COUNTY OF SACRAMENTO;
ZACHARY ROSE, Sacramento County
Sheriff’s Department Deputy (Badge
#832),
Defendants-Appellants,
and
No. 16-16230
D.C. No.
2:13-cv-00559-
GEB-KJN
OPINION
DUNCAN BROWN, Sacramento
County Sheriff’s Department Deputy
(Badge #1220),
Defendant.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., Senior District Judge, Presiding
Argued and Submitted December 8, 2017
San Francisco, California
Filed April 23, 2018
Before: Milan D. Smith, Jr. and Sandra S. Ikuta, Circuit
Judges, and Diane J. Humetewa,* District Judge.
Opinion by Judge Humetewa
SUMMARY**
Civil Rights
The panel (1) affirmed the district court’s decision granting defendants’ post-verdict motion for judgment as a matter of law on the issue of qualified immunity in a 42 U.S.C. § 1983 action alleging excessive deadly force; (2) reversed the district court’s post-verdict decision granting summary judgment sua sponte for the defendants on plaintiff’s California Bane Act claim, and (3) affirmed the denial of defendants’ requests for post-trial relief.
A sheriff’s deputy shot plaintiff in his apartment during a response to an anonymous 911 call
the deputy was entitled to qualified immunity on the Fourth Amendment excessive force claim.
In reversing the district court’s post-trial grant of summary judgment in favor of defendants on the California Bane Act claim for excessive force, the panel held that the district court erroneously concluded that the Bane Act requires a separate showing of coercion beyond that inherent in the use of force. The panel further determined that the Bane Act requires a specific intent to violate the arrestee’s right. The panel concluded that although there was no evidence of coercion independent from the deputy’s use of objectively unreasonable force, it could not conclude that no reasonable jury could find that the deputy had a specific intent to violate plaintiff’s
Addressing defendants’ cross-appeal, the panel held that plaintiff’s claims were not barred by Heck v. Humphrey, 512 U.S. 477 (1994) because defendants identified nothing in the record showing the specific factual basis for plaintiff’s “no contest” plea to violating California Penal Code § 417(a)(1). Without such information, the district court could not determine that plaintiff’s claim of excessive force in this case would call into question the validity of his misdemeanor weapon conviction. The panel further held that: (1) the jury’s award of $150,000.00 for future non-economic loss was supported by substantial evidence; (2) any error in the
deposition testimony of a defense witness who did not appear in court to testify.
COUNSEL
Dale K. Galipo (argued), Law Office of Dale K. Galipo, Woodland Hills, California; Eric Grant, Hicks Thomas LLP, Sacramento, California; Stewart Katz, Law Office of Stewart Katz, Sacramento, California; for Plaintiff-Appellant.
John R. Whitefleet (argued) and Thomas L. Riordan, Porter Scott, Sacramento, California, for Defendants-Appellees.
OPINION
HUMETEWA, District Judge:
Plaintiff/Appellant Robert Reese, Jr
under section 52.1 are the same as under § 1983); Barragan v. City of Eureka, No. 15-cv-02070-WHO, 2016 WL 4549130, at *8 (N.D. Cal. Sept. 1, 2016) (agreeing with Chaudhry that the elements of an excessive force claim under § 1983 establish the elements of a Bane Act claim and that no additional elements are required).
Although there are ample federal district court cases that interpret Chaudhry in a way that is contrary to the
In Cornell v. City and County of San Francisco, 225 Cal. Rptr. 3d 356, 384 (Cal. Ct. App. 2017) (citations omitted), the California Court of Appeal recognized that Bane Act claims are routinely alleged in Section 1983 claims under federal pendent jurisdiction and that “[t]he Bane Act’s requirement that interference with rights must be accomplished by threats[,] intimidation or coercion ‘has been the source of much debate and confusion.’” Thus, the court announced its endeavor to provide clarity. In so doing, the court examined Shoyoye’s conclusion that the section 52.1
claim required a showing of coercion independent of the coercion inherent in the wrongful detention at issue in that case. Concluding that Shoyoye was limited to cases involving mere negligence, the court in Cornell ruled that “[n]othing in the text of the statute requires that the offending ‘threat, intimidation or coercion’ be ‘independent’ from the constitutional violation alleged.” Id. at 383. The court agreed “that the use of excessive force can be enough to satisfy the ‘threat, intimidation or coercion’ element of Section 52.1.’” Id. at 382.
Cornell also makes clear, however, that the Bane Act imposes an additional requirement beyond a finding of a constitutional violation. Cornell explained that “[p]roperly read, the statutory phrase ‘threat, intimidation or coercion’ serves as an aggravator justifying the conclusion that the underlying violation of rights is sufficiently egregious to warrant enhanced statutory remedies, beyond tort relief.” Id. at 383. Accordingly, Cornell held that “the egregiousness required by Section 52.1 is tested by whether the circumstances indicate the arresting officer had a specific intent to violate the arrestee’s right to freedom from unreasonable seizure.” Id. at 384. In so holding, Cornell adopted the specific intent standard established in Screws v. United States, 325 U.S. 91 (1945), for assessing criminal violations of federal civil rights.4 225 Cal. Rptr. 3d at 384–85.
Thus, based on the weight of this new state authority, and our obligation to consider the California Court of Appeal’s thorough analysis of its own law, we draw two conclusions as to the necessary showing for an excessive force claim under the Bane Act. First, the Bane Act does not require the “threat, intimidation or coercion” element of the claim to be transactionally independent from the constitutional violation alleged. Cornell, 225 Cal. Rptr. 3d at 382–83. Second, the Bane Act requires a “a specific intent to violate the arrestee’s right to freedom from unreasonable seizure.” Id. at 384.
We see no “convincing evidence that the state’s supreme court likely would not follow” Cornell in reaching these two conclusions. Ryman, 505 F.3d at 994. As to the requirement of coercion independent from the constitutional violation, Cornell correctly notes that the plain language of Section 52.1 gives no indication that the “threat, intimidation, or coercion” must be independent from the constitutional violation. See Cornell, 225 Cal. Rptr. 3d at 383. Moreover, in the two California Supreme Court cases to apply Section 52.1 in the Fourth Amendment context, neither gave any indication of an independent coercion
of the alleged excessive force was required.5
Similarly, the specific intent requirement articulated in Cornell is consistent with the language of Section 52.1, which requires interference with rights by “threat, intimidation or coercion,” words which connote an element of intent. This is also reflected in California’s model jury instruction, CACI 3066, which characterizes a Bane Act claim as one by the plaintiff that the defendant “intentionally interfered with [or attempted to interfere with] [his/her] civil rights by threats, intimidation, or coercion.” CACI 3066 (emphasis added); see also Cornell, 225 Cal. Rptr. 3d at 387 (approving use of CACI 3066 because it “properly focused the jury on intentional violation of Cornell’s right to be free from unreasonable seizure”). As above, we observe that the Fourth Amendment claims asserted in Venegas and Jones are not inconsistent with Cornell’s approach.
Though we have previously stated that “the elements of the excessive force claim under § 52.1 are the same as under § 1983,” Chaudhry, 751 F.3d at 1105 (quoting Cameron, 713 F.3d at 1022), we do not read those cases as contradicting the intent requirement articulated in Cornell. In Cameron, we noted that the plaintiff “assert[ed] no California right different from the rights guaranteed under the Fourth Amendment,” 713 F.3d at 1022, and so concluded that the
elements of the excessive force claim were the same, citing our prior observation in Reynolds v. County of San Diego that “[s]ection 52.1 does not provide any substantive protections; instead, it enables individuals to sue for damages as a result of constitutional violations.” Cameron, 713 F.3d at 1022 (quoting Reynolds, 84 F.3d 1162, 1170 (9th Cir. 1996), overruled on other grounds, Acri v. Varian Assocs., Inc., 114 F.3d 999, 1000 (9th Cir. 1997)). Thus, Cameron was concerned with the nature of the elements of the predicate constitutional violation asserted under § 1983 and the Bane Act, but did not address whether the Bane Act required some showing of intent in addition to showing the constitutional violation. Chaudhry had no occasion to address the issue either, as the defendants there conceded that the elements were the same. 751 F.3d at 1105.
Applying these principles here, we conclude that the district court’s jury instructions were erroneous. The district court instructed the jury that if Reese prevailed on his Fourth Amendment claim, then he also prevailed on his Bane Act claim. But the jury did not consider Deputy Rose’s intent in its finding that he violated
intention to use force that the jury ultimately finds unreasonable—that is, general criminal intent—is insufficient.” United States v. Reese, 2 F.3d 870, 885 (9th Cir. 1993). Rather, the jury must find that the defendants “intended not only the force, but its unreasonableness, its character as ‘more than necessary under the circumstances.’” Id. But it is not necessary for the defendants to have been “thinking in constitutional or legal terms at the time of the incidents, because a reckless disregard for a person’s constitutional rights is evidence of a specific intent to deprive that person of those rights.” Id. Because the district court’s Bane Act jury instruction did not require this inquiry into Deputy Rose’s intent, it was incorrect. The district court’s post-trial order correctly recognized that Defendants’ proposed jury instruction, CACI 3066, should have been given, see Cornell, 225 Cal. Rptr. at 386–87.
In addition to giving an incorrect jury instruction, the district court erred when it issued its post-trial grant of summary judgment to Defendants on the Bane Act claim. The district court’s decision was based on an erroneous conclusion that the Bane Act required coercion independent from the constitutional violation. Although there was no evidence of coercion independent from Deputy Rose’s use of objectively unreasonable force, we cannot conclude from the record that, taking the evidence in the light most favorable to Reese, no reasonable jury could find that Deputy Rose had a specific intent to violate Reese’s Fourth Amendment rights. See Nozzi v. Housing Auth. of City of L.A., 806 F.3d 1178, 1199–200 (9th Cir. 2015). The decision is therefore reversed and Reese’s Bane Act claim is remanded for a new trial.7
II. Defendants’ Cross-Appeals
A. Heck v. Humphrey, 512 U.S. 477 (1994) does not bar Reese’s claims.
Prior to trial, Reese entered a “no contest” plea to a misdemeanor charge that he violated California Penal Code § 417(a)(1) for drawing or exhibiting a deadly weapon, other than a firearm, “in a rude, angry, or threatening manner,” thus disposing of his original charge of Assault with a Deadly Weapon.8
Under Heck v. Humphrey, 512 U.S. 477, 487 (1994), “[w]hen a plaintiff
because the claims necessarily imply the invalidity of his conviction.
Reese counters that Defendants did not produce evidence at trial to show the factual basis for Reese’s no contest plea. Defendants rely upon Reese’s trial testimony, which they characterize as stating that he “displayed/brandished the knife when he opened the door, but denied it was angry or threatening, and could not say whether the manner of display was ‘not polite.’” Reese points out, however, that there are other instances of conduct that could have formed the factual basis for his misdemeanor conviction including evidence that he exhibited a knife to Brittany Shurtleff in an angry or threatening manner before the Deputies arrived. The district court found that even if Reese’s misdemeanor conviction was based on a finding of “rudeness,” his trial testimony did not invalidate that conviction finding.9
In addition, the district court found that Defendants failed to show that the victim or victims of the conviction were any of the officers involved in Reese’s action.
We agree. Defendants have not demonstrated that Reese’s claims in this action are barred by Heck. Defendants have identified nothing in the record that shows the specific factual basis for Reese’s misdemeanor conviction. Without such information, this Court cannot determine that Reese’s claim of excessive force in this case would call into question the validity of his misdemeanor weapon conviction. See Smith, 394 F.3d at 698–99. The district court’s ruling is affirmed.
B. The jury’s award of $150,000.00 for future non-economic loss was supported by substantial evidence.
Defendants challenge the district court’s ruling that upheld the jury’s award of $150,000.00 to Reese for future non-economic loss. They contend there was no evidence at trial of future non-economic losses. They argue that “[a]t most, the jury was shown a visible physical scar, but there was no testimony that future care was needed, no testimony that the scar caused any sort of anxiety, mental disturbance or other non-economic loss.”
The district court cited two district court cases and a California Supreme Court case in determining that “[a]wards for non-economic damages, which included pain and suffering, can be supported by a finding of permanent scarring.” The district court then found that “[i]n light of Reese’s scarring, an inference can reasonably be drawn that he will continue to endure suffering” and that Defendants failed to show this portion of the judgment should be amended.
“A jury’s verdict, including a damages award, must be upheld if supported by ‘substantial evidence.’” Freitag v. Ayers, 468 F.3d 528, 537 (9th Cir. 2006), cert. denied, 549 U.S.
Reese showed the jury multiple scars on his body that resulted from the surgeries he underwent after being shot. Even if the only evidence in support of Reese’s non-economic damages was his multiple scars and any inferences drawn therefrom, Defendants have not demonstrated it was error for the district court to conclude that was sufficient to uphold the amount awarded for non-economic damages. The district court’s decision on this issue is affirmed.
C. Any error in the jury instruction on Reese’s Fourth Amendment claim that authorized liability if “Defendant shot at and/or shot the plaintiff” was harmless.
Defendants next contend the district court, over their objection, gave an erroneous jury instruction providing that a Fourth Amendment violation could be shown by proving that one of the Defendants “shot at and/or shot the plaintiff,” among other elements. Defendants argue “[t]his constituted prejudicial error by skewing the burden of proof at trial.” Defendants argue that merely shooting at someone is insufficient to constitute a seizure.
The Court need not decide whether the instruction was erroneous because any error was rendered harmless by the jury’s verdict. In their answers to the special interrogatories, the jury found that the round fired from Deputy Brown’s rifle did not hit Reese but the round fired by Deputy Rose did. Correspondingly, the jury found a Fourth Amendment violation by Deputy Rose but not Deputy Brown. Thus, to the extent Deputy Brown could have been found liable under the Fourth Amendment for merely shooting at Reese rather than shooting and hitting him, the jury’s findings prevented any harm from the potentially erroneous instruction. Thus, even
if the district court erred in giving that instruction, the error was harmless.
D. The district court did not abuse its discretion when it failed to exclude certain testimony by Reese’s expert, and certain testimony by Defendants’ expert elicited on cross-examination.
Defendants next argue the district court abused its discretion by failing to exclude testimony by Reese’s expert that a particular set of circumstances represented a “don’t shoot scenario.” The district court overruled Defendants’ objection at trial that the question presented an incomplete hypothetical and invaded the province of the jury. Citing no legal authority, Defendants argue the evidence should have been excluded.
“We review the district court’s evidentiary decisions for abuse of discretion, and the appellant is . . . required to establish that the error was prejudicial.” Ambat v. City & County of San Francisco, 757 F.3d 1017, 1032 (9th Cir. 2014) (alteration in original) (quoting Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1110 (9th Cir. 2011)).
As to the argument that the hypothetical was incomplete in that it referred to Reese being unarmed after he backed up into the apartment, the jury was not required to accept the described scenario as true and, in fact, made a finding that Deputy Rose
ultimate issue.”
Defendants also challenge the district judge’s failure to sustain objections to questions asked of Defendants’ expert by Reese’s counsel. The questions addressed scenarios pertaining to whether Deputy Rose saw Reese’s hands when he shot him. Again, given the jury’s finding on this issue, Defendants have failed to show prejudicial error, as the district court determined. The district court’s ruling is affirmed.
E. The district court did not err in excluding the deposition testimony of a defense witness who did not appear in court to testify.
Next, Defendants argue the district court erred in excluding from the trial deposition testimony of Brittany Shurtleff, a witness who Defendants claim was “unavailable” under the Federal Rules of Evidence. Defendants contend they successfully served a subpoena on the witness and made reasonable, good faith efforts to procure her presence.
The district court determined that defense counsel, despite being aware the witness did not intend to appear in court, failed to make additional reasonable efforts in the time leading up to trial to ensure the witness’s appearance in court. The district court therefore concluded there was no basis “to justify finding her unavailable under Federal Rule of Evidence 804(a)(5).”
Likewise, Defendants here simply assert that counsel made reasonable, good faith efforts to procure the witness’s presence but they fail to explain what those efforts were.
Absent any evidence of actual reasonable, good faith efforts to ensure the witness’s appearance, Defendants have not demonstrated that the district court abused its discretion. The district court’s ruling is therefore affirmed.
AFFIRMED IN PART, and REVERSED AND REMANDED IN PART. Each party shall pay its own costs on appeal.