Forrester v. City of San Diego

• Decision Date: 01 June 1994
• Docket Number: No. 92-55137,92-55137
• Citation: 25 F.3d 804
• Parties: Michael G. FORRESTER; Michaelene Ann Jenkins; Donna E. Niehouse; Dena A. Niehouse; Nancy H. Scofield; Harold E. Scofield, Plaintiffs-Appellants, v. CITY OF SAN DIEGO, a municipal corporation; Donald Fashing; D. Hannan, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 804

25 F.3d 804

Michael G. FORRESTER; Michaelene Ann Jenkins; Donna E.

Niehouse; Dena A. Niehouse; Nancy H. Scofield;

Harold E. Scofield, Plaintiffs-Appellants, v. CITY OF SAN DIEGO, a municipal corporation; Donald Fashing;

D. Hannan, Defendants-Appellees.

No. 92-55137.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 14, 1993.

Decided June 1, 1994.

Lloyd Edward Tooks, San Diego, CA, for plaintiffs-appellants.

Francis M. Devaney, Deputy City Atty., San Diego, CA, for defendants-appellees.

Appeal from the United States District Court for the Southern District of California.

Opinion by Judge HALL; Dissent by Judge KLEINFELD.

Before: GIBSON, ^* HALL, and KLEINFELD, Circuit Judges.

CYNTHIA HOLCOMB HALL, Circuit Judge:

Anti-abortion demonstrators who were arrested for trespass and unlawful assembly appeal (1) the district court judgment that the City of San Diego's policy regarding pain compliance arrest techniques was constitutional and (2) the jury verdict that San Diego's police officers did not use excessive force in executing their arrests. Because sufficient evidence supported the jury verdict, we affirm without deciding whether the city's policy authorized unreasonable uses of force.

I.

In March 1989, San Diego police became aware that Operation Rescue planned to stage several anti-abortion demonstrations in the city. ¹ Cognizant of the protest tactics used by Operation Rescue members in other demonstrations, San Diego Police Chief Burgreen met with his staff to formulate a plan of action. After considering several options, Burgreen adopted a policy for dispersing and arresting demonstrators who trespassed on and blocked entrances to private medical clinics.

The policy provided for the police first to give the protesters an opportunity to avoid arrest by leaving the premises after a verbal warning. The police were then to arrest those who refused to leave and give them another opportunity to move voluntarily. Finally, the police were to remove the remaining demonstrators with "pain compliance techniques" involving the application of pain as necessary to coerce movement. The "pain compliance" policy provided for the police to use either "Orcutt Police Nonchakus" (OPNs) (two sticks of wood connected at one end by a cord, used to grip a demonstrator's wrist) or direct physical contact (firm grip, wrist-and arm-twisting, and pressure point holds).

Although San Diego police officers generally have discretion either to use pain compliance or to drag and carry arrestees, Burgreen's policy absolutely prohibited officers from using the drag and carry method. Burgreen changed the existing rule in anticipation of the Operation Rescue protests for two reasons. First, he wanted to prevent the back injuries that multiple dragging and carrying causes to police and arrestees. And, second, he wanted to maximize police control over the large crowds he anticipated.

In each of the three demonstrations at issue, protesters converged upon a medical building, blocking entrances, filling stairwells and corridors, and preventing employees and patients from entering. When police or property owners attempted to remove them, the demonstrators "passively" resisted by remaining seated, refusing to move, and refusing to bear weight. At the first demonstration, the initial police officers on the scene dragged and carried arrestees. However, after the arrival of the "pain compliance unit," and in each subsequent demonstration, the officers implemented Burgreen's policy and used only pain compliance techniques.

For each arrest, the officers warned the demonstrators that they would be subject to pain compliance measures if they did not move, that such measures would hurt, and that they could reduce the pain by standing up, eliminating the tension on their wrists and arms. The officers then forcibly moved the arrestees by tightening OPNs around their wrists until they stood up and walked. All arrestees complained of varying degrees of injury to their hands and arms, including bruises, a pinched nerve, and one broken wrist.

Several subsequently filed suit, claiming that the police violated the Fourth Amendment by using excessive force in executing the arrests and that San Diego's pain compliance policy was unconstitutional. A magistrate judge found the policy to be constitutional and granted summary judgment in favor of the city. The judge, however, allowed the case to proceed to the jury in order to determine whether any particular uses of force were unconstitutional. After viewing a videotape of the arrests, the jury concluded that none involved excessive force and returned a verdict for the city. After denying a JNOV motion, the court entered judgment on the verdict for the city and the demonstrators filed a timely appeal.

II.

The demonstrators first contend that evidence does not support the jury's verdict. Keeping in mind that "[w]hether the amount of force used was reasonable is usually a question of fact to be determined by the jury," Barlow v. Ground, 943 F.2d 1132, 1135 (9th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 2995, 120 L.Ed.2d 872 (1992), we review the jury's verdict to determine "whether it is supported by substantial evidence, that is, such relevant evidence as a reasonable mind might accept as adequate to support a conclusion," Eberle v. City of Anaheim, 901 F.2d 814, 818 (9th Cir.1990) (internal quotation omitted).

A.

"[A]ll claims that law enforcement officers have used excessive force ... in the course of an arrest ... should be analyzed under the Fourth Amendment and its 'reasonableness' standard." Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989). E.g., Ward v. City of San Jose, 967 F.2d 280, 284 (9th Cir.1991).

Determining whether the force used to effect a particular seizure is "reasonable" under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake.... [T]he "reasonableness" inquiry in an excessive force case is an objective one: the question is whether the officers' actions are "objectively reasonable" in light of the facts and circumstances confronting them.

Graham, 490 U.S. at 396-97, 109 S.Ct. at 1872 (internal quotations omitted). E.g., Barlow, 943 F.2d at 1135. "The question is not simply whether the force was necessary to accomplish a legitimate police objective; it is whether the force used was reasonable in light of all the relevant circumstances." Hammer v. Gross, 932 F.2d 842, 846 (9th Cir.) (en banc), cert. denied, --- U.S. ----, 112 S.Ct. 582, 116 L.Ed.2d 607 (1991). ²

B.

We think ample evidence supports the jury's conclusion that the officers acted reasonably in using pain compliance techniques to arrest the demonstrators. In addition to hearing the testimony of numerous officers and demonstrators, the jury watched the entire videotape of the arrests (and watched excerpts on repeated occasions). As the district court noted, the videotape created an extensive evidentiary record: "Thanks to videotaped records of the actual events, plus the testimony of witnesses on both sides, the jury had more than a sufficient amount of evidence presented to them from which they could formulate their verdicts.... The extensive use of video scenes of exactly what took place removed much argument and interpretation of the facts themselves." ³

The evidence satisfies the Graham inquiry of reasonableness. First, the nature and quality of the intrusion upon the arrestees' personal security was less significant than most claims of force. The police did not threaten or use deadly force and did not deliver physical blows or cuts. Rather, the force consisted only of physical pressure administered on the demonstrators' limbs in increasing degrees, resulting in pain. Compare Eberle, 901 F.2d at 820 (reasonable as a matter of law to use a painful "finger control hold" to remove belligerent spectator from arena) with Hammer, 932 F.2d at 846 (unreasonable to forcibly extract blood against the will of arrestee who indicates a willingness to undergo alternative form of alcohol testing).

Second, the city clearly had a legitimate interest in quickly dispersing and removing lawbreakers with the least risk of injury to police and others. The arrestees were part of a group of more than 100 protesters operating in an organized and concerted effort to invade private property, obstruct business, and hinder law enforcement. Although many of these crimes were misdemeanors, the city's interest in preventing their widespread occurrence was significant: "[T]he wholesale commission of common state-law crimes creates dangers that are far from ordinary. Even in the context of political protest, persistent, organized, premeditated lawlessness menaces in a unique way the capacity of a State to maintain order and preserve the rights of its citizens." Bray, --- U.S. at ----, 113 S.Ct. at 769 (Kennedy, J., concurring). The city had a substantial interest in preventing the organized lawlessness conducted by the plaintiffs in this case, and the police were also justifiably concerned about the risk of injury to the medical staff, patients of the clinic, and other protesters. Id. at ----, 113 S.Ct. at 780 (O'Connor, J., dissenting).

Despite these governmental interests, the demonstrators argue that dragging and carrying was a more reasonable means of accomplishing the city's goals and therefore contend that any other method was excessive. Police officers, however, are not required to use the least intrusive degree of force possible. Rather, as stated above, the inquiry is whether the force that was used to effect a particular seizure was reasonable viewing the facts from the perspective of a reasonable officer on the scene. See Graham, 490 U.S. at 396, 109 S.Ct. at 1871. Whether officers hypothetically could have used...