Pavao v. Pagay

• Decision Date: 30 September 2002
• Docket Number: No. 01-15201.,01-15201.
• Citation: 307 F.3d 915
• Parties: Harolyn PAVAO, as Special Administratrix of the Estate of Jon Webster Pavao, Plaintiff-Appellant, v. John PAGAY; County of Hawaii, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 915

307 F.3d 915

Harolyn PAVAO, as Special Administratrix of the Estate of Jon Webster Pavao, Plaintiff-Appellant, v. John PAGAY; County of Hawaii, Defendants-Appellees.

No. 01-15201.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 9, 2002.

Filed September 30, 2002.

Eric A. Seitz, Honolulu, HI, for the plaintiff-appellant.

Joseph K. Kamelamela, Deputy Corporation Counsel, County of Hawaii, Hilo, HI, for the defendants-appellees.

Appeal from the United States District Court for the District of Hawaii; David A. Ezra, Chief District Judge, Presiding. D.C. No. CV-98-00856-DAE.

Before: WALLACE, TASHIMA and TALLMAN, Circuit Judges.

TALLMAN, Circuit Judge.

I

We must decide whether a police officer responding to two dropped 911 calls from a residence, which, as was later revealed, concerned an ongoing domestic violence incident, had consent to enter the home. Tragically, the incident resulted in the death of one of the participants, Jon Webster Pavao, who pointed a gun at the responding officer. Appellant Harolyn Pavao, as Special Administratrix of the Estate of Jon Pavao ("the Estate"), appeals the judgment entered in favor of Appellee Hawaii County Police Officer John Pagay. The Estate also challenges the order denying its renewed motion for judgment as a matter of law, or in the alternative, its motion for a new trial on its claim under 42 U.S.C. § 1983. The Estate contends that both the jury and the district court erred in concluding that Officer Pagay had received clear and unequivocal consent to enter the home on June 10, 1998. We affirm.

II

Jon Webster Pavao ("Pavao") had been living with his girlfriend Linda Sadino ("Linda"), and her children in a home on the Island of Hawaii. On the afternoon of June 10, 1998, Pavao and Linda had an argument during which Pavao grabbed Linda's neck. During the course of the argument, one of Linda's children, Michelle Segobia ("Michelle"), who was approximately 14 years old at the time, twice called 911 but hung up both times before describing the nature of her emergency to the dispatcher. Meanwhile, Linda told Pavao to leave the home, and Pavao arranged for his daughter Sharina Pavao ("Sharina") to pick him up. Once Sharina arrived, she was invited into the home by Linda while Sharina's brother-in-law and a friend waited in a truck outside the residence.

Uniformed Police Officer John Pagay ("Officer Pagay") was dispatched to the home to investigate the dropped 911 calls received from that address. Officer Pagay had been told by the radio dispatcher that the caller sounded like a female child requesting police assistance, but that the reason for the calls for help was unknown. Upon arrival, Officer Pagay first approached the vehicle in which Sharina's brother-in-law and the friend were still seated. He asked whether there were any problems, and both responded that they did not know anything since they had just arrived at the home. Sharina testified that when Officer Pagay first pulled up, Linda looked outside and asked, "Who called the cops?," which suggests that the inhabitants of the home were aware that Officer Pagay was present before he knocked on the front door of the residence.

Officer Pagay testified that on arrival he heard loud female voices coming from inside the residence. Upon reaching the front door of the residence, Officer Pagay opened the outside screen door. He knocked several times on the closed wooden door behind it, and announced his presence by stating, "Police." Officer Pagay then heard someone inside the residence shout, "Open the door, I think that's the police."

Michelle opened the wooden door about halfway, and stood next to the door with her hand on the back of the doorknob. Although Michelle claimed that she did not remember being questioned at the front door, Officer Pagay testified that while still standing outside he asked Michelle, "Is there a problem here? Did someone call 911?" Michelle provided no verbal response to Officer Pagay's questions. Officer Pagay testified that he observed a "terrified look" on Michelle's face and that it appeared as though she had been crying.

The conversation between Michelle and Officer Pagay lasted for approximately one minute. Thereafter, Michelle fully released the door by swinging it all the way open. Without comment, she stepped back against a sofa in the living room of the home and looked to her mother, Linda, who was standing near a hallway by the dining room. Still standing in the threshold of the doorway, Officer Pagay asked Linda if there was a problem and if anyone had called 911. Linda also failed to respond to these inquiries.

Officer Pagay then entered the home, without objection, and learned from Linda that Pavao had grabbed her by or near her neck. Once inside, Officer Pagay told the feuding parties that one of them would have to leave, and Linda informed Officer Pagay that Pavao was already leaving. At Officer Pagay's direction, Pavao proceeded to the kitchen to gather up his things. Officer Pagay then noticed Pavao remove a revolver from a drawer in the kitchen and place it in the waistband of his pants. Officer Pagay drew his weapon and ordered Pavao to drop his gun.

All witnesses agreed that instead of dropping his revolver, Pavao removed the gun from his waistband and then lowered it to his side with the barrel pointing towards the ground. All witnesses also agreed that, even after being repeatedly ordered to drop his gun, Pavao raised his revolver, pointed it at his own head, and challenged Officer Pagay to shoot him. When Pavao was again ordered to drop his gun, he lowered the weapon to his right side, with the barrel pointing towards the ground. During this exchange, Linda was repeatedly shouting to Officer Pagay that the gun held by Pavao was broken and inoperable, although Officer Pagay testified that he did not hear what she was saying at the time.

Conflicting testimony was presented to the jury regarding Pavao's actions and statements in the moments immediately preceding the fatal shooting. Linda, Michelle, and Sharina testified that Officer Pagay shot Pavao when Pavao was simply holding his weapon at his side, pointing it towards the ground. However, Officer Pagay testified that in lowering the revolver, Pavao had pointed it forward in the direction of Officer Pagay, and that Pavao smirked or smiled at Officer Pagay, took "two" or "several" steps forward, then raised his gun again and pointed it towards Officer Pagay. Officer Pagay shot Pavao in the chest, and Pavao died as a result of his gunshot wounds.

The Estate filed a suit for damages against Officer Pagay and the County of Hawaii under 42 U.S.C. § 1983, and the case proceeded to trial. At the close of the evidence, the Estate moved for entry of judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(a). That motion was denied based on the district court's determination that the evidence presented created a question of fact as to whether clear and unequivocal consent was given to Officer Pagay to enter the home. On April 24, 2000, the jury returned its verdict in favor of Officer Pagay, specially finding that (1) "before entering the home ... Officer Pagay had received a clear and unequivocal consent to enter from [] the occupants," and (2) that "Officer Pagay had a reasonable belief that [Pavao] posed a significant threat of death or serious physical injury to [Officer Pagay] or others when he shot [Pavao] on June 10th, 1998."

The Estate renewed its motion for judgment as a matter of law under Federal Rule of Civil Procedure 50(b) and, in the alternative, sought a new trial, arguing that (1) there was insufficient evidence to support the jury's conclusion of clear and unequivocal consent, and (2) that the verdict in favor of Officer Pagay was against the weight of the evidence. On May 18, 2000, final judgment was entered in favor of Officer Pagay. On July 14, 2000, the district court denied the Estate's post-trial motions, finding that the jury's special verdict was supported by substantial evidence. The Estate timely appealed.

III

A jury's verdict must be upheld if it is supported by substantial evidence, which is evidence adequate to support the jury's conclusion, even if it is also possible to draw a contrary conclusion. "[A]lthough the court should review the record as a whole, it must disregard evidence favorable to the moving party that the jury is not required to believe, and may not substitute its view of the evidence for that of the jury." Johnson v. Paradise Valley Unified Sch. Dist., 251 F.3d 1222, 1227 (9th Cir.2001) (internal quotations omitted).

We review de novo the grant or denial of a renewed motion for judgment as a matter of law. Such a judgment is proper if the evidence, construed in the light most favorable to the nonmoving party, permits only one reasonable conclusion, and that conclusion is contrary to the jury's verdict. See McLean v. Runyon, 222 F.3d 1150, 1153 (9th Cir.2000).

The grant or denial of a motion for a new trial is reviewed for an abuse of discretion. See Johnson, 251 F.3d at 1229. A trial court may grant a new trial only if the verdict is against the clear weight of the evidence, and may not grant it simply because the court would have arrived at a different verdict. See Silver Sage Partners, Ltd. v. City of Desert Hot Springs, 251 F.3d 814, 818-19 (9th Cir.2001).

Regardless of which standard of review is applied in this case, we hold that the district court did not err when it refused to overturn the jury's decision that consent could be implied from the totality of the circumstances surrounding Officer Pagay's entry.¹

IV

A

In a criminal case, the government bears the burden of proving by a preponderance of the evidence that consent was freely and voluntarily given. See Rosi, 27 F.3d at 412. In a civil case under 42 U.S.C. § 1983, however, the plaintiff carries the ultimate burden of establishing each element of...