Unpublished Disposition, 902 F.2d 40 (9th Cir. 1980)

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US Court of Appeals for the Ninth Circuit - 902 F.2d 40 (9th Cir. 1980)

Nos. 87-5910, 87-5852.

United States Court of Appeals, Ninth Circuit.

Before THOMPSON and TROTT, Circuit Judges, and THEIS, District Judge.* 

MEMORANDUM** 

This is an appeal from a judgment entered in favor of defendant-appellees after a jury trial of a civil rights complaint brought under 42 U.S.C. § 1983. Plaintiff-appellant challenges the trial court's refusal to grant a new trial and specifically alleges that the verdict is not supported by the evidence, that the trial court failed to properly instruct the jury, and that the trial court erred in refusing the jury's request to reread a portion of the record. Appellant also alleges error in the trial court's grant of a directed verdict for one of the defendants. Defendant-appellees have cross-appealed the trial court's denial of summary judgment based on a statute of limitations defense.

FACTS

This suit was brought for head and eye injuries that appellant received during an incident involving appellant and six Los Angeles police officers. On April 7, 1980, Officers Baer and Goldsmith responded to a public disturbance call involving a "man on PCP." They drove to the parking lot of an industrial chemical plant and found appellant standing in the parking lot area. At the parking lot, Officer Goldsmith talked to a security guard for an adjoining plant who informed Goldsmith that they just wanted appellant removed from the property, and not arrested. Appellant was holding a can of spray deodorant and was rocking from side to side. The officers approached appellant and tried to ask some questions, but appellant did not respond. There was testimony that appellant sprayed Officer Goldsmith with the deodorant can, and that Goldsmith then radioed for back-up assistance. Shortly thereafter, four other officers arrived.

The events following the arrival of back-up officers are disputed. At least four of the officers at the scene agree generally on one version of the events. According to defendants Goldsmith, Baer, Borst, and Montes, all of the officers at the scene approached appellant and encircled him. The briefs do not indicate whether Officer Church saw Officer Hess approach appellant with the other officers. Officers Montes and Baer tried to grab appellant's arms in order to walk him off the property, but appellant threw them off. The officers tried to subdue appellant, and appellant resisted by chasing and charging them, and by attempting to spray several of them. Officers Baer and Borst testified that they did not remove their batons during the incident. Officer Goldsmith testified that he did remove his baton and did strike appellant on his right forearm in an attempt to knock the spray can out of appellant's hand. Officer Baer recalls seeing Officer Hess use his baton and hitting appellant with one blow as Hess was falling away from appellant. Baer also recalls seeing one other person swinging a baton, but does not remember which officer. Officer Borst testified that the officer on his right, who Borst believed was Hess, was moving backwards when he removed his baton and struck appellant. Officer Church testified that he recalled swinging his baton, but that he did not hit appellant. Officer Church also testified that Officer Hess had his baton out, but Church did not recall Hess swinging it or hitting appellant. Officer Montes testified that he did not see anyone with his baton out.

Officer Hess' version differs from that of the other officers. According to Hess, he did not approach appellant with the other officers, but remained near his police car. Hess testified that appellant ran towards him and made a motion as if to spray him. Hess said he removed his baton and attempted to knock the can out of appellant's hand. With this same stroke, Hess struck appellant above his left eye.

Appellant fell to his knees, and the officers handcuffed him. Appellant was taken to the hospital for treatment and psychiatric observation. Conflicting evidence was introduced at trial regarding whether appellant was under the influence of PCP or any other drug at the time he was admitted to the hospital. Although the hospital's urine samples taken from appellant yielded a negative test result for drugs, several experts agreed that this would not necessarily indicate appellant was not under the influence of drugs at the time of the incident. There appears to be no dispute that this incident resulted in permanent impairment to appellant's left eye vision as well as serious frontal lobe brain damage.

DISCUSSION

Appellant submits that the verdict in favor of the defendants is not supportable because: 1) the defendants used unreasonably excessive and deadly force; and 2) the severity of the injuries requires a different finding.

Appellant argues that with the possible exception of misdemeanor trespassing, he was not committing a crime when he was "assaulted" by the officers. Appellant also places great reliance on a prior statement made by Hess that was read to the jury at trial. In this statement, which Hess made during his retirement proceeding, Hess referred to the incident by saying: "I knocked a nigger's eye out with a stick."

We review a challenge to a jury verdict by determining whether the verdict is against the great weight of the evidence or whether the jury clearly has reached a seriously erroneous result. Venegas v. Wagner, 831 F.2d 1514, 1519 (9th Cir. 1987). Applying this standard, we find that the jury could reasonably reach the result of this case. Each of the officers involved testified that appellant responded in an aggressive manner when the officers attempted to remove him from the property. Further, evidence indicated that the officers who used their batons were trying to knock the spray can from appellant's hands. Appellant has offered no evidence to contradict the officers' testimony and instead characterizes the police actions generally as an unreasonable use of deadly force. These conclusions are insufficient to defeat the jury's determination that the officers acted reasonably.

Nor does the Hess statement necessarily compel the conclusion that the use of force by Officer Hess was motivated by racial animus. Although appellant is correct in asserting that Hess' statement indicates malice for black persons, the jury could properly conclude that appellant's aggressive response justified the use of force.

Appellant also makes various allegations of a "cover up" that he urges should alter the verdict. In support of this allegation, appellant observes that none of the officers prepared an altercation report, contrary to regulations. The officers testified that they made verbal reports to the sergeant on duty and/or filled out field reports. Although the failure of the officers to prepare a report may have been a violation of police procedure, the jury could properly reject appellant's theory that this failure revealed a cover up.

Finally, the severity of appellant's injuries, without a finding of liability, is irrelevant.

As an initial matter appellees urge that this court should refuse to consider appellant's jury instruction arguments on the basis of procedural defects. Specifically, appellees allege first, that appellant has not complied with the federal and circuit appellate rules regarding preparation of record, and second, that appellant did not properly raise these objections in the district court. In response, appellant informs us that he has cured his record deficiency by filing a supplemental excerpt of record containing appellant's proposed jury instructions. To the second alleged defect appellant responds that he properly objected to the instructions below by filing his proposed jury instructions before trial. Moreover, appellant argues that it was unnecessary to raise a specific objection to the trial court's denial of appellant's proposed instructions, because the trial court rejected the underlying theories of these instructions.

This court has held that an objection to a jury instruction is preserved for appeal "even where the plaintiff does not object to instructions when plaintiff proposes alternative instructions and the district court is aware that plaintiff does not agree with the court's instructions." Benigni v. City of Hemet, 879 F.2d 473, 475 (9th Cir. 1988), reh'g denied, 882 F.2d 356 (1989). In this case, appellant argued that the officers, as a matter of law, had arrested him and had used deadly force against him. In rejecting these arguments, the trial court appears to have had adequate opportunity to address the issues implicated by appellant's proposed instructions. We will therefore consider appellant's arguments on the merits.

Appellant requested that the jury be instructed as a matter of law that the use of batons in this case was an excessive and unreasonable use of force. In support of his argument that such an instruction was required, appellant relies on Tennessee v. Garner, 471 U.S. 1 (1985). The Supreme Court held in Garner that "apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment." Id. at 7. Within the factual context of the case, the Court found as a matter of law that it was constitutionally unreasonable for an officer to shoot dead an unarmed, fleeing burglary suspect who posed no immediate threat to either the officer or others.

Ordinarily, the question of reasonableness of force by police officers is an issue to be determined by the jury. See Robins v. Harum, 773 F.2d 1004, 1010 (9th Cir. 1985) (jury found that officers' excessive use of force to restrain was unreasonable). In this case, the trial court instructed the jury to determine whether under all the circumstances, the officers acted in an objectively reasonable manner. Appellant's reliance on the Court's holding in Garner is misplaced because unlike Garner, there was evidence in the present case that appellant attacked the officers. If the jury believed this evidence, it was proper for the jury to consider whether the officers reasonably acted in self defense. Moreover, the use of batons in this case, although actually resulting in serious bodily injury, is not as easily characterized as "deadly force" as was the use of a gun in Garner. It was appropriate for the jury to consider whether the use of batons was an unreasonable use of deadly force, and the trial court did not err in refusing to instruct as a matter of law on this issue.

Appellant also requested that the jury be instructed as a matter of law that appellant was arrested. Apparently, appellant thought this instruction necessary in order to undergird his theory that the failure to fill out arrest reports indicated a conspiracy. Appellant's requested instruction, however, would have added nothing to his theory. The evidence of the officers' failure to fill out reports was before the jury. Likewise, the jury heard evidence from which it might have properly concluded that appellant was under arrest once he was subdued. Based on this evidence, the jury could have concluded that there was a conspiracy and accordingly, could have chosen to disbelieve the officers' version of the events. The propriety of the officers actions was a question of fact for the jury, and the trial court properly refused to instruct the jury as a matter of law that appellant had been arrested.

After a short period of deliberation, the jury requested that Officer Hess' testimony be reread. Judge Real, acting in the place of Judge Williams, denied this request, relying on United States v. De Palma, 414 F.2d 394 (9th Cir. 1969), cert. denied, 396 U.S. 1046 (1970).

The rereading of evidence of a particular witness lies within the sound discretion of the trial court. De Palma, 414 F.2d at 396. United States v. Ratcliffe, 550 F.2d 431, 434 (9th Cir. 1976). Appellant has suggested no objective reason for concluding that the court abused its discretion. Accordingly, we find that the trial court did not err in refusing to reread Hess' testimony.

During trial, the court granted Sergeant Antkiewicz's motion for a directed verdict. The officers involved in this incident, as well as Antkiewicz himself, testified that Antkiewicz was not at the scene of this incident. Nonetheless, the daily report of Lieutenant Morton, who was the station supervisor on duty at the time, indicates that Antkiewicz was "at the scene." Morton was not at the scene of the incident. During his deposition, Lieutenant Morton testified that his log entry meant the scene of the incident. At trial, however, Lieutenant Morton testified that his log entry meant that Antkiewicz was at the scene of the hospital when Officer Montes was treated for his injuries.

In reviewing the grant of a directed verdict, the appellate court assumes the same role as the trial court. Oltz v. St. Peter's Community Hosp., 861 F.2d 1440, 1446 (9th Cir. 1988). Thus, the appellate court may affirm the directed verdict "only when the evidence, taken most favorably to the losing party, and all justifiable inferences therefrom are insufficient to support a contrary finding." Id.

In this case, the only evidence supporting the allegation that Antkiewicz was at the scene of the incident is the log entry and Morton's deposition testimony interpreting that log entry. Lieutenant Morton was not at the scene and any information he recorded was necessarily received from someone else. We find that this evidence was insufficient to create a triable issue of fact. Not only was the information placing Antkiewicz at the scene unreliable, there was a total dearth of evidence that Antkiewicz either participated in or directed the officers' actions. Thus, to find liability on the part of Antkiewicz would have required the jury to speculate on facts not in evidence. The trial court correctly granted Antkiewicz's motion for directed verdict.

Because the defendants asked that we consider the issues in their cross-appeal only if we reversed the district court's judgment, we do not reach and express no opinion on the issues raised in defendants' cross-appeal.

The judgment of the district court is AFFIRMED.

 *

Honorable Frank G. Theis, Senior United States District Judge for the District of Kansas, sitting by designation

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3