Heller v. Bushey, 82-6028

• Citation: 759 F.2d 1371
• Decision Date: 01 May 1985
• Docket Number: No. 82-6028,82-6028
• Parties: Ronald HELLER, Plaintiff-Appellant, v. Craig BUSHEY, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1371

759 F.2d 1371

Ronald HELLER, Plaintiff-Appellant, v. Craig BUSHEY, et al., Defendants-Appellees.

No. 82-6028.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted

Jan. 7, 1985.

Decided May 1, 1985.

Stephen Yagman, Marion R. Yagman, Yagman & Yagman, P.C., Los Angeles, Cal., for plaintiff-appellant.

Katherine Hamilton, Thomas C. Hokinson, Los Angeles, Cal., for defendants-appellees.

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

Before SNEED, POOLE, and FERGUSON, Circuit Judges.

SNEED, Circuit Judge:

This is an appeal from judgments entered in a bifurcated trial brought under 42 U.S.C. Sec. 1983 (1982) for alleged constitutional deprivations suffered by the plaintiff, Ronald Heller, during his arrest by defendant Los Angeles police officer Craig Bushey. Heller filed his action against the arresting police officers, various Los Angeles government officials, and the City of Los Angeles. The individual government officials were dismissed from the case, and the Los Angeles Board of Police Commissioners and the Los Angeles Police Department were joined in their stead. The trial was divided so as to first try claims brought against police officer Bushey and thereafter to try claims raised against the municipal defendants. The jury returned a general verdict for Officer Bushey. The district court then dismissed the action against the municipal entities and entered judgment in their favor.

Heller does not challenge the verdict and consequent judgment in favor of Officer Bushey. He does appeal the district court's substitution of the Los Angeles Board of Police Commissioners and the Los Angeles Police Department for the individual defendants and the judgment dismissing his action against the municipal defendants.

We reverse the district court's dismissal of the individual defendants and the substitution of the Board of Police Commissioners and the Police Department in their stead. We also reverse the judgment dismissing claims against the municipal defendants and remand the case for further proceedings.

I FACTS AND PROCEEDINGS BELOW

On June 10, 1980, two Los Angeles police officers, Craig Bushey and Calvin Brasher, stopped Heller on suspicion of driving while intoxicated. The officers administered a series of field sobriety tests. Apparently dissatisfied with the results, the officers decided to take Heller to the station Heller brought an action based on 42 U.S.C. Sec. 1983 against both arresting police officers, Chief Daryl Gates of the Los Angeles Police Department, Los Angeles Mayor Tom Bradley, individual members of the Los Angeles Board of Police Commissioners, and the City of Los Angeles. In pretrial proceedings, Officer Brasher, Mayor Bradley, Chief Gates, and the individual members of the Board of Police Commissioners were dismissed from the action. The Los Angeles Board of Police Commissioners and the Los Angeles Police Department were substituted as defendants in place of the dismissed officials.

to undergo a breath test. When notified that he was under arrest, however, Heller became belligerent. One of the defendants, Officer Bushey, attempted to handcuff him. An altercation ensued. In the course of the struggle, Heller fell through a plate glass window.

Without explanation appearing on the record, the district court, as already indicated, bifurcated the trial with the intention of first trying the claims raised against police officer Bushey and thereafter proceeding, if necessary, to the disposition of claims brought against the City, the Police Department, and the Board of Police Commissioners. This bifurcation entailed no specific division of issues between the two phases of the proceedings.

Heller's claim against Officer Bushey rested on the assertion that Heller's Fourth and Fourteenth Amendment rights were violated by his arrest without reasonable cause and by the use of excessive force in effecting the arrest. As against the municipal entities, Heller contended, as required by the rule in Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978), that they also were liable because Bushey acted in accordance with a police department policy or custom that condoned the use of excessive force by Los Angeles police officers.

After the trial against Bushey alone, the jury returned a general verdict against Heller and in favor of Bushey. Concluding that this verdict precluded Heller's theory of liability against the government entities, the district court did not allow Heller to present his case based on Monell. On its own motion, the district court dismissed Heller's claims against the remaining defendants.

II DISCUSSION

A. Dismissal of the Monell Claim

The district court's dismissal of the claims against the municipal defendants raises a question of law, which is reviewable de novo. See Guillory v. County of Orange, 731 F.2d 1379, 1381 (9th Cir.1984).

Appellees contend that the jury's verdict constituted a finding that Heller suffered no deprivation cognizable under section 1983. If Heller suffered no injury, they argue, neither the City nor its agencies are liable to him, without regard to the nature of their policies. Were these policies unassailable on constitutional grounds, Heller, of course, would have no claim against the City or its agencies. Were they assailable on constitutional grounds, Heller, having suffered no injury, would lack standing to sue. No "case or controversy" within the meaning of Article III would exist. See generally 13 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure Secs. 3531, 3531.4 (1984) (constitutional standing requires injury in fact).

Heller, while not challenging these principles, contends that the jury verdict does not constitute a finding that he suffered no injury to his constitutional rights. It follows, he continues, that there is a "case or controversy" entitling him to challenge the policies of the City and its agencies. His position rests on the contention that the jury could have believed that Bushey, having followed Police Department regulations, was entitled in substance to a defense of good faith. ¹ Such a belief We believe there is merit in Heller's position. To establish the liability of individual defendants under section 1983, a plaintiff must show, first, that he was deprived of an interest protected by the Constitution or laws of the United States and, second, that the defendants caused the deprivation while acting under color of state law. 42 U.S.C. Sec. 1983 (1982); Harris v. City of Roseburg, 664 F.2d 1121, 1125 (9th Cir.1981). There is no dispute that police officer Bushey acted under color of state law when he arrested Heller. ² The jury, in substance, was instructed that Heller was deprived of liberty without due process if he was arrested without reasonable cause. The jurors were further instructed that Heller's constitutional rights were violated if he was arrested with "unreasonable force" that exceeded the force necessary under the circumstances to effect arrest. The jury's verdict for the defendant therefore embodies a finding that Heller was arrested for reasonable cause and that the amount of force used was not unreasonable or excessive. ³ The difficulty is that the conclusion that the force was reasonable could have been derived either from Police Department regulations, which incorporate a theory of "escalating force," or from a constitutional standard entirely independent of such regulations. We cannot say which with assurance.

would not negate the existence of a constitutional injury.

The appellant insists that this uncertainty entitled him to proceed against the government entities in accordance with Monell v. Department of Social Services. So long as the jurors used the Police Department "escalating force" policy to establish the reasonableness of the force that was used, the appellant's suit should not be dismissed in its entirety without a determination of the reasonableness of that policy. The transcript of the trial suggests that the jury could have used Department policy in that way.

During the trial, substantial testimony was presented demonstrating that Officer Bushey followed the "escalating force" policy of the Police Department when arresting Heller. The transcript reveals that Officer Bushey used increasing amounts of force in an effort to restrain Heller and attempted to apply a choke hold to Heller before Heller fell through the plate glass window. The transcript also indicates that Police Department regulations authorized use of the choke hold in such situations.

The jury was not instructed on its use of this testimony in its deliberations. Since the jury instructions defined permissible force as the force necessary to effect arrest in light of "all the surrounding circumstances," we believe the jurors could have considered Officer Bushey's compliance with the policy as an indication of either the reasonableness of Bushey's use of force or the existence of immunity based on good faith.

We must conclude that the general verdict does not foreclose a finding that Heller suffered a constitutional deprivation. Heller's

Monell claim survived the general verdict. Dismissal of the City defendants was, therefore, improper. The jury verdict, of course, conclusively determined that there was probable cause to arrest Heller. On the other hand, it is equally clear that whether the application of force in accordance with Police Department regulations in this...