Barnard v. Theobald

• Decision Date: 01 July 2013
• Docket Number: Nos. 11–16625,11–16655.,s. 11–16625
• Citation: 721 F.3d 1069
• Parties: Charles BARNARD; Rita Barnard, Plaintiffs–Appellees, v. Greg THEOBALD, # 6527; Gary Clark, # 6240; Steven Radmanovich, # 6420, individually and as Police Officers employed by the Las Vegas Metropolitan Police Department, Defendants–Appellants, and Las Vegas Metropolitan Police Department, A political subdivision of the State of Nevada, Defendant. Charles Barnard; Rita Barnard, Plaintiffs–Appellants, v. Greg Theobald, # 6527; Gary Clark, # 6240; Steven Radmanovich, # 6420, individually and as Police Officers employed by the Las Vegas Metropolitan Police Department, Defendants–Appellees, and Las Vegas Metropolitan Police Department, A political subdivision of the State of Nevada, Defendant.
• Court: U.S. Court of Appeals — Ninth Circuit

721 F.3d 1069

Charles BARNARD; Rita Barnard, Plaintiffs–Appellees,

v.Greg THEOBALD, # 6527; Gary Clark, # 6240; Steven Radmanovich, # 6420, individually and as Police Officers employed by the Las Vegas Metropolitan Police Department, Defendants–Appellants,andLas Vegas Metropolitan Police Department, A political subdivision of the State of Nevada, Defendant.

Charles Barnard; Rita Barnard, Plaintiffs–Appellants,

v.Greg Theobald, # 6527; Gary Clark, # 6240; Steven Radmanovich, # 6420, individually and as Police Officers employed by the Las Vegas Metropolitan Police Department, Defendants–Appellees,andLas Vegas Metropolitan Police Department, A political subdivision of the State of Nevada, Defendant.

Nos. 11–16625, 11–16655.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Feb. 15, 2013.

Filed July 1, 2013.

Walter R. Cannon, Peter M. Angulo, and Thomas D. Dillard, Jr. (argued), Olson, Cannon, Gormley & Desruisseaux, Las Vegas, NV, for Defendants–Appellants–Cross–Appellees.

Paola M. Armeni (argued) and Margaret W. Lambrose, Gordon Silver, Las Vegas, NV, for Plaintiffs–Appellees–Cross–Appellants.

Appeal from the United States District Court for the District of Nevada, Robert Clive Jones, Chief District Judge, Presiding. D.C. No. 2:03–cv–01524–RCJ–LRL.

Before: MICHAEL DALY HAWKINS and MILAN D. SMITH, JR., Circuit Judges, and JAMES G. CARR, Senior District Judge.^*

OPINION

CARR, Senior District Judge:

Charles Barnard (Charles) brought suit against Las Vegas Metropolitan Police Officers Greg Theobald, Gary Clark, and Steven Radmanovich (collectively, the Officers) for their alleged use of excessive force in violation of the Fourth Amendment. A jury found that the Officers' use of force was constitutionally excessive, and awarded Charles over $2 million in compensatory damages. In post-trial motions, the Officers argued that the jury verdict could not stand because they are entitled to qualified immunity. The Officers also argued they are entitled to a new trial because of a plethora of perceived prejudicial errors committed by the trial court.¹ The district court denied the Officers' motions. Because the Officers are not entitled to qualified immunity, we affirm the district court's entry of judgment on the jury's verdict. However, we agree with Charles's arguments—raised in his cross-appeal—that the district court abused its discretion by failing to adequately explain its decision to reduce the amount of attorney fees awarded to Charles, and in denying Charles pre-and post judgment interest. Consequently, we reverse those portions of the district court's decision, and remand for further proceedings consistent with this opinion.

FACTUAL BACKGROUND²

Around 11:30 p.m. on December 8, 2001, the Officers arrived at the home of Charles and Rita Barnard (Rita) to execute an arrest warrant. The warrant called for the arrest of David Barnard (David), Charles's brother, who was staying with Charles and Rita.

Upon arrival at the Barnard residence, the Officers knocked on the door, announced themselves as police officers, and demanded entry. Charles opened the door and came out on the landing. The Officers immediately confronted him. All of the Officers had their weapons drawn, and Officer Clark had his weapon pointed at Charles. At trial, Charles testified that the Officers appeared agitated, and that they were “shaking, they're screaming, yelling at me, ‘Hey, motherfucker, put your hands up, put your fucking hands up.’ ” Charles put up his hands.

The Officers asked Charles to identify himself. Charles told the Officers that his driver's license was in his bedroom, and asked the Officers to explain the purpose of their visit. The Officers explained that they had a warrant to arrest David. Charles told the Officers that David is his brother, and that he was asleep inside the house. The Officers ordered Charles to turn around and put his “fucking hands on the wall.” Again, Charles complied.

Standing behind Charles, Officer Theobald seized Charles's right arm and handcuffed his right wrist. Before Theobald could handcuff Charles's other arm, however, Theobald tripped on a flower pot that was on the Barnards' landing. Theobald fell backward, still holding onto the handcuffs that were attached to Charles's right wrist. Officer Radmanovich, who had been standing to Charles's left, grabbed for Charles's left (free) arm as Charles was being pulled down by Theobald, but Radmanovich tripped over one of Charles's legs, and all three men came crashing down; Radmanovich on top of Charles, and Charles on top of Theobald.

Officer Clark then joined the fracas. Clark came over to Charles, who was still lying on top of Theobald, and put Charles in a chokehold. Clark then tried to lift Charles up by his neck. Theobald, however, still had hold of the handcuff around Charles's right wrist. The other officers yelled at Theobald to release the cuff, which he did. Still holding Charles by the neck, Officer Clark then lifted Charles even higher off the ground and spun Charles around so that he was on his hands and knees with Officer Clark straddling his back. Charles testified that at some point during this time, his “legs went numb.”

Clark kept Charles in a chokehold as he rode Charles to the floor. While Clark was sitting on Charles's back restraining him in a chokehold, Officers Theobald and Radmanovich ordered Charles to give them his “motherfucking” arms. With Clark on top of him, however, Charles could not comply with the Officers' order. Officer Theobald then instructed Clark to use his chemical agent ( i.e., pepper spray) to gain Charles's compliance. While still sitting on Charles's back, Officer Clark released the chokehold and sprayed pepper spray into Charles's face. Clark then dropped his spray canister next to Charles. One of the Officers immediately picked up the can and pepper-sprayed Charles for a second time.

Soon thereafter, Officer Clark got off of Charles's back, and the other Officers handcuffed Charles's arms behind him. Both Officers Radmanovich and Theobald then dug one of their knees into Charles's back—Officer Radmanovich's knee pressed near Charles's neck and shoulders, and Officer Theobald's pressed into Charles's lower back.

At this point, Rita came to the front door to investigate the disturbance. Officer Clark ordered her to “put your fucking hands up, [and] get on the fucking wall.” Clark then asked Rita to identify herself. Rita identified herself as Charles's wife.

Finally, David came to the front of the house. Officer Radmanovich got off of Charles in order to secure David. Meanwhile, Officer Theobald slid his knee up Charles's back towards his neck. For the next few minutes, as Officers Clark and Radmanovich secured the scene, Theobald kept his knee pressed firmly into the back of Charles's neck and shoulders.³ Charles repeatedly asked Theobald to get off of his neck, and told Theobald that he was in considerable pain. But Theobald refused to relent. Eventually, after the other Officers had secured David in the back of a police car, Theobald released his knee from the back of Charles's neck. Charles was taken to Clark County Detention Center, where he was held for three days on charges of battery on a police officer, resisting an officer, and obstructing a public officer. ⁴

The same morning Charles was released from jail, he sought medical treatment at University Medical Center. Charles complained to the attending physician of severe pain in his hip, neck and shoulders. A week later, Charles returned to the same doctor because his pain had still not subsided. Charles was referred to a specialist, who further referred Charles to physical therapy. But physical therapy was not enough to alleviate Charles's pain and other symptoms. Ultimately, over the course of many years, Charles underwent nine spinal surgeries in an effort to relieve the various symptoms he claims were caused by his encounter with the Officers. As of the time of trial, Charles's symptoms had still not subsided.⁵

PROCEDURAL BACKGROUND

Charles brought suit against the Las Vegas Metropolitan Police Department (LVMPD) and the Officers on December 5, 2003. Charles alleged that the Officers arrested him without probable cause, and used excessive force in making his arrest. Charles further alleged that the LVMPD was vicariously liable for the Officers' actions.

In March 2007, then-United States District Judge Brian Sandoval granted LVMPD's and the Officers' motions for summary judgment and entered judgment in favor of the defendants. A panel of our court affirmed in part, reversed in part, and remanded. See Barnard v. Las Vegas Metro. Police Dep't., 310 Fed.Appx. 990, 994 (9th Cir.2009). Specifically, we affirmed the district court's grant of summary judgment to the Officers on Charles's false arrest claim after finding the Officers were entitled to qualified immunity. Id. at 992. We also affirmed the district court's grant of summary judgment to the LVMPD on the basis that municipal liability in § 1983 actions cannot be based on vicarious liability.⁶Id. at 992–94. However, we reversed the district court's grant of summary judgment to the Officers on Charles's excessive force claim. We explained that the Officers were not entitled to qualified immunity because, “construing the evidence in the light most favorable to the plaintiff” at “the time of the incident at issue here, a reasonable officer would have known it violated clearly established law to use a choke hold on a non-resisting arrestee who had surrendered, pepper-spray him, and apply such knee pressure on his neck and back that it would cause the collapse of five vertebrae in his cervical spine.” Id. at 993. We thus remanded Charles's excessive force claim for trial.

Trial began on January 24, 2011, and lasted seven days. At the conclusion of the plaintiff's case-in-chief, the Officers moved for a directed verdict under Federal Rule of Civil Procedure 50(a). The...