Huffman v. County of Los Angeles

Decision Date23 June 1998
Docket Number97-55341,97-55230,Nos. 97-55176,s. 97-55176
Citation147 F.3d 1054
Parties98 Daily Journal D.A.R. 6842 Gerald A. HUFFMAN; Gunilla Lukse, Plaintiffs-Appellees, Cross-Appellants, v. COUNTY OF LOS ANGELES; Sherman Block, Defendants-Appellants, Cross-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Barry M. Wolf, Martin Stein, Timothy T. Coates, Greines, Martin, Stein & Richland, Beverly Hills, California, for defendants-appellants County of Los Angeles and Sherman Block.

Carol A. Watson, Manes & Watson, Los Angeles, California, for plaintiffs-appellees Gerald A. Huffman and Gunilla Lukse.

Appeals from the United States District Court for the Central District of California; Harry L. Hupp, District Judge, Presiding. D.C. No. CV-95-04071-HLH-JGx.

Before: FARRIS, O'SCANNLAIN, and FERNANDEZ, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

We must decide whether the County of Los Angeles may be held liable under the Fourteenth Amendment for failing to warn its off-duty sheriff's deputies against carrying firearms while intoxicated.

I

John Huffman was shot and killed on August 14, 1994, during a barroom brawl with Thomas Kirsch, an off-duty deputy employed by the Los Angeles County Sheriff's Department. On the day of the incident, Kirsch arrived alone at Whitney's Steakhouse ("Whitney's"), a restaurant and bar, between 6:00 p.m. and 7:00 p.m. Kirsch, who was neither in uniform nor on duty, had started drinking earlier in the day. When he arrived at Whitney's, he was carrying his personal, off-duty revolver in the waistband of his pants. The gun was loaded with department-issued ammunition. Kirsch was also carrying his official identification. While at Whitney's, Kirsch consumed four or five "screwdrivers in a bucket," drinks containing vodka and orange juice.

At approximately 8:00 p.m., John Huffman and his girlfriend Deena Hughes also arrived at Whitney's. In a little over an hour, they drank two or three beers each and shared a "kamikaze," a mixed hard-liquor drink. After sitting near Kirsch, Huffman and Hughes, who did not know Kirsch before that evening, began to engage him in conversation. Kirsch did not tell Huffman that he was a sheriff's deputy; instead, he stated that he owned an air conditioning company.

Huffman and Kirsch did not talk continuously because Huffman was "up and around." Huffman "kept going down to" Kirsch, would get "right in his face," and then would come away "bouncing and verbal and vulgar." Although the conversation was "not angry," and Kirsch did not appear "upset," he was "a little resentful" of some of Huffman's questions, which he considered "a little private." At one point, Hughes "nudged Kirsch's elbow and said be careful, because he's an Olympic wrestler." Hughes made this comment in case "[Huffman] was getting on [Kirsch's] nerves or bothering him."

As the conversation progressed, a witness testified, "there was a little aggression going on between [Kirsch and Huffman.]" Huffman eventually offered Kirsch $40.00 to "go out and settle this." Kirsch responded by telling Huffman to "put your money down." The witness stated that Kirsch was "fed up" with Huffman, and that "Kirsch was saying more or less I'm not going to back down, put your money down, let's see it." This exchange occurred more than once. At some point, Kirsch said, "I'm going to go for it," or some similar remark.

Kirsch and Huffman were still talking when Hughes left the dance floor bar and went to the parking lot of Whitney's to bring Huffman's truck around to the front of the restaurant. Huffman then left the bar, and Kirsch followed by a separate route. After Kirsch walked out the door, he was taken to the ground by Huffman, who had wrestled in high school and college, and had coached college wrestling. Kirsch never gave Huffman any commands, nor did Kirsch identify himself as a police officer.

Kirsch later told investigators that while he was struggling on the ground with Huffman, he was thinking: "[T]he fight's on, get the gun out," but "clarified ... that it was not my intention to pull a weapon and shoot Mr. Huffman." Kirsch subsequently testified: "I did not draw the weapon out. The weapon was coming out. I got a hold of the weapon. It was not a draw and shoot." Nevertheless, Kirsch's finger "went to the trigger." Kirsch fired the gun, which was pressed against Huffman's chest, killing Huffman.

Kirsch was taken to a police station and tested twice on an alcohol breathalyzer at approximately 11:30 p.m. Each test registered .209%. The Huffmans' toxicology expert, Darrell Clardy, opined that Kirsch's blood alcohol was around .25% at the time he shot Huffman--approximately 9:00 p.m. Clardy concluded that Kirsch "was significantly intoxicated by alcohol," and "was drunk in the mental aspects." Huffman's blood-alcohol level was .18% at the time of his death. Huffman's autopsy revealed that Huffman had used between "a third of a line and a line" of cocaine within four hours of the shooting.

Huffman's parents, Gerald Huffman and Gunilla Lukse ("the Huffmans"), brought a section 1983 action against the County of Los Angeles, Sheriff Sherman Block (in his individual and official capacities), 1 and Deputy Kirsch (in his individual and official capacities), 2 claiming that the County had violated the Huffmans' substantive due process rights, as guaranteed by the Fourteenth Amendment. At trial, the Huffmans introduced evidence concerning the Los Angeles County Sheriff's Department's policies on carrying guns off duty and while intoxicated. The Huffmans' expert witness, James Fyfe, testified that the sheriff's department had devoted insufficient attention to the unlawful use of firearms by off-duty deputies, including deputies' use of firearms while intoxicated. Fyfe relied on department reports indicating that sixty-three off-duty shootings and seventeen off-duty brandishings occurred from 1989 to 1994. Fifteen of these shootings or brandishings involved the use of alcohol. Although Fyfe acknowledged that these incidents had all been investigated by the department, he deemed the investigations deficient, particularly with respect to allegations of alcohol use. After the close of the Huffmans' case and again after the close of the County's case, the County moved for judgment as a matter of law under Rule 50 of the Federal Rules of Civil Procedure, but the motions were denied.

The jury returned a special verdict in favor of the Huffmans, and awarded them $750,000 in damages. The County thereupon filed a renewed motion for judgment as a matter of law under Rule 50, which was again denied. The district court entered judgment in favor of the Huffmans, awarding them $450,000 after subtracting the $300,000 settlement with Kirsch. The County then filed a motion for a new trial and again renewed its Rule 50 motion. Both motions were denied. This appeal followed.

II

Judgment as a matter of law is appropriate when the evidence, "viewed in the light most favorable to the nonmoving party," could not reasonably support the verdict. Amarel v. Connell, 102 F.3d 1494, 1517-18 (9th Cir.1997). We review the district court's denial of the County's motion for judgment as a matter of law de novo. See Pierce v. Multnomah County, 76 F.3d 1032, 1037 (9th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 506, 136 L.Ed.2d 397 (1996).

Section 1983 states that "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law...." 42 U.S.C. § 1983. The Huffmans contend that the County deprived them and their son of rights guaranteed by the Due Process Clause of the Fourteenth Amendment. That clause provides that no State shall "deprive any person of life, liberty, or property, without due process of law...." U.S. Const. amend. XIV. The Due Process Clause has been interpreted to protect substantive as well as procedural rights. See Washington v. Glucksberg, --- U.S. ----, ----, 117 S.Ct. 2258, 2267, 138 L.Ed.2d 772 (1997) (collecting cases). The Huffmans contend that the County violated their son's right to life, as well as their right to a relationship with their son. Our decisions have recognized the existence of both of these substantive due process rights. See Smith v. City of Fontana, 818 F.2d 1411, 1417-18 (9th Cir.1987).

To be held liable under section 1983, a person must act "under color of" law. 42 U.S.C. § 1983. The trial judge determined "as a matter of law that [Kirsch] was not acting under color of law when Mr. Huffman was shot and killed." The judge later instructed the jury that Kirsch was acting neither under color of law nor within the scope of his employment at the time of the incident.

The Supreme Court has interpreted the phrase "under 'color' of law" to mean "under 'pretense' of law." Screws v. United States, 325 U.S. 91, 111, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945). A police officer's actions are under pretense of law only if they are "in some way 'related to the performance of his official duties.' " Van Ort v. Estate of Stanewich, 92 F.3d 831, 838 (9th Cir.1996) (quoting Martinez v. Colon, 54 F.3d 980, 986 (1st Cir.1995)). By contrast, an officer who is " 'pursuing his own goals and [i]s not in any way subject to control by [his public employer],' " id. (quoting Mark v. Borough of Hatboro, 51 F.3d 1137, 1151 (3d Cir.1995)), does not act under color of law, unless he "purport[s] or pretend[s]" to do so, id. Officers who engage in confrontations for personal reasons unrelated to law enforcement, and do not "purport[ ] or pretend[ ]" to be officers, do not act under color of law. Id.; see also Parrilla-Burgos v. Hernandez-Rivera, 108 F.3d 445, 449-51 (1st Cir.1997); Barna v. City of Perth Amboy, 42...

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