Robins v. Harum
| Decision Date | 03 October 1985 |
| Docket Number | 85-3630,P,WALLIS-ROBIN,Nos. 85-3629,s. 85-3629 |
| Citation | 773 F.2d 1004 |
| Parties | Ronnie G. ROBINS, Plaintiff-Appellee, v. Mike HARUM, Joe Collins as Sheriff of Chelan County Washington, and Chelan County, a Washington municipal corporation, Defendants-Appellants. Connielaintiff-Appellee, v. James HARUM, Joe Collins as Sheriff of Chelan County Washington, and Chelan County, a Washington municipal corporation, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Tim J. Mackin, Taft, Rielly & Mackin, Spokane, Wash., Ronald D. Estes, Platts, Zimmerman & Estes, Wenatchee, Wash., for plaintiff-appellee.
E.R. Whitmore, Wenatchee, Wash., for defendants-appellants.
Appeal from the United States District Court for the Eastern District of Washington (Spokane).
Before WRIGHT, PREGERSON, and ALARCON, Circuit Judges.
Appellants Mike Harum, James Harum, Joe Collins, and Chelan County appeal from the district court's order denying their motion for judgment notwithstanding the verdict, or in the alternative, for a new trial. Appellants raise two contentions on this appeal: (1) the trial court erred in presenting to the jury appellees' section 1983 claims based upon excessive use of force by sheriff's deputies, and (2) the trial court erred in separately presenting to the jury
the torts of intentional infliction of emotional distress and assault and battery.
Shortly after midnight on May 29, 1983, appellees Ronnie Robins and Connie Wallis-Robins (the Robinses) were arrested for littering and obstructing traffic by Chelan County deputy sheriff Mike Harum and reserve officer James Harum. The Robinses were not handcuffed and were placed in the rear of the patrol car.
While the car was en route to the Chelan County jail, a disagreement developed between Ronnie Robins and deputy Mike Harum over Ronnie's request to smoke a cigarette in the patrol car. A few blocks from the police station, Deputy Mike Harum abruptly stopped the car, both deputies leaped from the car, and a struggle ensued as the deputies attempted to pull the Robinses from the car. The Robinses called to the gathering spectators for help and to "get some good cops." Shortly thereafter, other sheriff's deputies arrived and transported the Robinses to the police station.
On February 6, 1984, the Robinses (who were then unmarried) filed separate complaints which were consolidated for trial and have been consolidated on this appeal. The complaints alleged unlawful arrest, excessive use of force, denial of necessary medical treatment and malicious prosecution, in violation of the First, Fourth, Fifth, and Fourteenth Amendments and 42 U.S.C. Secs. 1981 and 1983. The complaints also contained pendent state claims for assault and battery, false arrest, false imprisonment, intentional infliction of emotional distress, malicious prosecution, negligence, and gross negligence. As a result of appellants' success on a number of pretrial motions, the issues remaining at the time of trial were (1) the section 1983 claim for use of excessive force, and (2) the pendent state claims for assault and battery and intentional infliction of emotional distress.
The jury returned a verdict in favor of the Robinses, awarding them $14,000 on their section 1983 claims, $300 on their assault and battery claims, and $11,000 on their claims for intentional infliction of emotional distress. The court denied appellants' motions for judgment notwithstanding the verdict, or in the alternative, for a new trial.
We review a district court's denial of a motion for a new trial for an abuse of discretion. Robert's Waikiki U-Drive, Inc. v. Budget Rent-A-Car Systems, Inc., 732 F.2d 1403, 1408 (9th Cir.1984). A judgment notwithstanding a jury verdict is appropriate when the evidence permits only one reasonable conclusion as to the verdict. Mosesian v. Peat, Marwick, Mitchell & Co., 727 F.2d 873, 877 (9th Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 329, 83 L.Ed.2d 265 (1984). Neither the district court nor this court may weigh the evidence or order a result it finds more reasonable if substantial evidence supports the jury verdict. Id.
The Robinses' claim for excessive use of force was brought pursuant to 42 U.S.C. Sec. 1983. The statute provides:
Every 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 or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured....
By its terms, section 1983 creates no substantive rights; it merely provides remedies for deprivations of rights established elsewhere. City of Oklahoma City v. Tuttle, --- U.S. ----, 105 S.Ct. 2427, 2432, 85 L.Ed.2d 791 (1985). The Robinses' complaint alleges violations of the First,
Fourth, Fifth and Fourteenth Amendments. We must determine which Amendment furnishes the constitutional basis for the Robinses' section 1983 claim.
Appellants assert that the Robinses' section 1983 claim for excessive use of force is predicated upon an alleged violation of the Robinses' procedural due process rights under the Fourteenth Amendment. See Patterson v. Coughlin, 761 F.2d 886, 892 (2d Cir.1985) (). Appellants contend that the Robinses' claim is therefore barred by the availability of adequate postdeprivation remedies under state law, relying upon Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) () and Rutledge v. Arizona Board of Regents, 660 F.2d 1345 (9th Cir.1981) (), aff'd on other grounds sub nom Kush v. Rutledge, 460 U.S. 719, 103 S.Ct. 1483, 75 L.Ed.2d 413 (1983).
The Robinses argue that the right to be free from excessive use of force by the police is a substantive due process right protected by the Fourteenth Amendment, Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952) and Johnson v. Glick, 481 F.2d 1028 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973). The Robinses contend that because the substantive due process component of the Fourteenth Amendment () imposes limits on what a state may do regardless of what process is provided, the presence or absence of a state remedy is irrelevant to whether a claim is stated under section 1983. In essence, the Robinses are actually contending that the Parratt analysis should not apply to an intentional deprivation of a liberty interest protected by the Fourteenth Amendment.
We need not decide whether the Fourteenth Amendment creates liberty interests which are exempt from the Parratt analysis. 1 The Robinses' complaint also alleged a violation of the Fourth Amendment. The district court apparently based its ruling permitting the section 1983 claim to go to the jury, at least in part, on the theory that such a claim may be grounded on a violation of the Fourth Amendment where a person is subjected to unreasonable conduct by law enforcement officials following arrest but prior to booking.
In denying appellants' second motion for summary judgment, the district court stated only that "there is no question that plaintiffs' excessive-use-of-force (assault) allegation may be the basis of a section 1983 action in this circuit." In support of its rulings, however, the court cited McKenzie v. Lamb, 738 F.2d 1005 (9th Cir.1984). McKenzie holds that an excessive use of force claim is actionable under section 1983 as a Fourth Amendment violation of the right to be free from an unreasonable seizure. Id. at 1011. Furthermore, the court's pretrial order expressly reserved for trial the following issue: "Of what, if any, constitutional rights have the Plaintiffs been deprived by the Defendants." Finally, contrary to counsels' assertions at oral argument, the district court We may affirm the district court on any basis fairly supported by the record. City of Las Vegas v. Clark County, 755 F.2d 697, 701 (9th Cir.1985) (quoting Hoohuli v. Ariyoshi, 741 F.2d 1169, 1177 (9th Cir.1984)). The record reveals that the Robinses' Fourth Amendment claim was preserved for trial and presented to the jury. Because the Parratt analysis does not apply to a section 1983 claim based upon a violation of the Fourth Amendment, we affirm.
presented the Robinses' section 1983 claim to the jury on both Fourth and Fourteenth Amendment grounds. The court instructed the jury as follows: "Plaintiffs specifically complain that certain acts or omissions by defendants constituted a violation of section 1983 by proximately causing them to be deprived of rights protected under the First, Fourth, Fifth, and Fourteenth Amendments to the United States Constitution."
A section 1983 claim based on a violation of the Fourth Amendment is on solid ground in this circuit. This court has held that a section 1983 claim may be based upon the Fourth Amendment where the police use excessive force during arrest procedures. In McKenzie v. Lamb, 738 F.2d 1005 (9th Cir.1984), we reversed a district court's summary judgment ruling dismissing a section 1983 excessive use of force claim grounded on the Fourth Amendment. Id. at 1011. We found that the arrest was illegal because there was no probable cause (id. at 1008-1010),...
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