Bluestein v. Groover

• Decision Date: 04 October 1991
• Docket Number: No. 88-15048,88-15048
• Citation: Bluestein v. Groover, 940 F.2d 667 (9th Cir. 1991)
• Parties: Unpublished Disposition NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Rose BLUESTEIN, individually and as heir, mother, next friend, and as administratrix of the Estate of Frank Bluestein deceased, and Louis Steve Bluestein, individually and as father and heir of Frank Bluestein, deceased, v. Richard David GROOVER, individually and as a Police Officer of the Las Vegas Metropolitan Police Department, Eugene F. Smith, individually, and as Sheriff of Clark County, Nevada and as chairman of the Las Vegas Metropolitan Police Commission, and as Chief Administrative Officer and as Chief Law Enforcement Officer of the Las Vegas Metropolitan Police Department, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 667

940 F.2d 667

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Rose BLUESTEIN, individually and as heir, mother, next friend, and as administratrix of the Estate of Frank Bluestein deceased, and Louis Steve Bluestein, individually and as father and heir of Frank Bluestein, deceased, v. Richard David GROOVER, individually and as a Police Officer of the Las Vegas Metropolitan Police Department, Eugene F Smith, individually, and as Sheriff of Clark County, Nevada and as chairman of the Las Vegas Metropolitan Police Commission, and as Chief Administrative Officer and as Chief Law Enforcement Officer of the Las Vegas Metropolitan Police Department, et al., Defendants-Appellees.

No. 88-15048.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 12, 1991.

Decided July 25, 1991.

As Amended on Denial of Rehearing and Rehearing En Banc

Oct. 4, 1991.

Before SCHROEDER, CANBY and NOONAN, Circuit Judges.

MEMORANDUM ^*

Rose M. Lewis and Steven Bluestein appeal from a judgment for the defendants in their civil rights action against the Las Vegas Metropolitan Police Department (LVMPD) and individual Officers Smith, Groover, McCarthy and Clifford. Trial was to a jury. The Bluesteins argue that the trial court committed error in entering directed verdicts in favor of the defendants on the plaintiffs' individual capacity claims and on the punitive damages claims. The plaintiffs also challenge various jury instructions, the conduct of the court, comments by the defense counsel, the sufficiency of the evidence supporting the jury verdict, and the denial of their motion for a new trial. We affirm.

ANALYSIS

A. Directed verdicts ¹

1. Directed Verdict on Fourth Amendment Claims

The district court granted the defendants' motions for directed verdicts on the plaintiffs' individual capacity claims and fourth amendment claims. The Bluesteins challenge both directed verdicts.

After the trial, the Supreme Court decided Graham v. Connor, 490 U.S. 386 (1989). Under Graham, it is clear that all of the Bluesteins' excessive force claims against the officers were fourth amendment claims. Thus, the directed verdict on the individual capacity claims is duplicated by the directed verdict on the fourth amendment claims, and we do not discuss it separately.

The Bluesteins sued the defendants in their individual and official capacities for excessive use of force. The defendants' argument that the action was an official capacity suit is disproved by examining the pleadings, pretrial orders, and course of proceedings. Kentucky v. Graham, 473 U.S. 159, 167 n. 14 (1985). Many documents, including the complaint and pretrial order, specify that the officers are being sued in both official and personal capacities. We therefore address the propriety of the district court's directed verdict on the fourth amendment claims as it applied to the plaintiffs' official and individual capacity claims.

a. Fourth Amendment Claims Against the Officers in their Official Capacities

After de novo review, we conclude that any error committed by the district court in directing a verdict against the defendants in their official capacity was harmless. To find that the defendants, in their official capacity, violated Frank Bluestein's fourth amendment rights, the jury would have to find that the officers acted pursuant to a plan, policy, or custom. Kentucky v. Graham, 437 U.S. 159, 166 (1985). The plaintiffs presented their official capacity claims to the jury as claims arising under the fourteenth amendment. The jury rejected the claims, specifically finding that the officers had not adopted and were not acting pursuant to a plan, policy or custom. See Interrogatory 1, question 1. Because fourth amendment instructions would not affect the jury's consideration of this issue, the plaintiffs' official capacity claims based on the fourth amendment would similarly fail.

b. Fourth Amendment Claims Against the Officers in their Individual Capacities

We also agree with the plaintiffs that the district court erred in directing a verdict in favor of the officers in their individual capacities. The Bluesteins presented substantial evidence that Officers Smith and Groover failed to identify themselves as police officers, thereby creating a dangerous situation which caused the death of Frank Bluestein. See Peterson v. Kennedy, 771 F.2d 1244, 1256 (9th Cir.1985), cert. denied, 475 U.S. 1122 (1986). The Bluesteins provided uncontroverted evidence that the officers wore plain clothes and drove an unmarked car with no outward indicia of authority. Although the officers claimed that they activated a red light to pull Frank over, announced they were police officers, and ordered Frank to drop his gun, the Bluesteins produced witnesses from the apartment complex who testified that they did not hear the officers shout and did not see the officers' red flashing light until after the shooting had occurred. From this evidence, the jury could conclude that Smith and Groover, in their individual capacities, violated Frank Bluestein's fourth amendment rights. See e.g., Samples v. City of Atlanta, 846 F.2d 1328 (11th Cir.1988); Price v. United States, 728 F.2d 385 (6th Cir.1984). The only evidence contradicting the Bluesteins' claim was the testimony of Smith and Groover. Because resolution of the conflicting testimony would require the jury to judge the credibility of the officers and the witnesses, it was improper for the district court to direct a verdict in favor of Smith and Groover on this claim. See Samarzia v. Clark County, 859 F.2d 88, 90 (9th Cir.1988).

The district court erred in directing a verdict in favor of Clifford and McCarthy in their individual capacities because the Bluesteins presented substantial evidence from which the jury could have found that the supervisors knew that the undercover officers were making unconstitutional stops and failed to take corrective action. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989) (supervisor may be liable for the constitutional violations of his subordinates if the supervisor knew of the violations and failed to act to prevent them). The Bluesteins introduced witnesses who testified that undercover officers had pulled them over, either without probable cause or for minor traffic violations, to ascertain their identity or the identity of the occupants of the vehicle. In several instances, the officers had arrested the drivers for minor traffic violations and booked them into jail after subjecting them to strip searches. Finally, the Bluesteins showed that Clifford and McCarthy were aware of this illegal activity, but failed to act to prevent the stops. In defense, the defendants produced the testimony of the officers responsible for the stops as well as Sheriff McCarthy and Commander Clifford. Again, the resolution of the conflicting testimony would require the jury to judge the witnesses' credibility. Consequently, the district court erred in directing a verdict in favor of McCarthy and Clifford on this issue. Samarzia, 859 F.2d at 90.

Nonetheless, after reviewing the record, the jury's verdict, and the circumstances of this particular case, we conclude that the erroneously directed verdicts on the individual capacity claims were harmless. See Fed.R.Civ.P. 61 (no erroneous ruling is ground for granting a new trial unless refusal to take such action appears to the court inconsistent with substantial justice); Pherson v. Goodyear Tire and Rubber Co., 590 F.2d 756, 761 (9th Cir.1978). This case was not crisply tried by either party. On appeal, the plaintiffs rely on the confusion in the record to support their claims for reversal. Although this confusion gives some life to some of the plaintiffs' arguments, we conclude that the jury considered and rejected the plaintiffs' individual capacity claims.

Despite the directed verdict, it appears from the record that the plaintiffs' individual capacity claims were submitted to the jury. On March 2, the day set for closing argument, the Bluesteins pressed the court to submit the issue of individual liability to the jury. Without referring to the directed verdict on the individual capacity claims, the plaintiffs objected to the court's interrogatories and jury instructions because they did not permit the jury to find Officers Smith and Groover liable in their individual capacities. The Bluesteins' objection states:

[P]laintiffs object to the court's instruction[s] ... on the ground that they totally eliminate[d] the possibility of the jury returning a verdict in favor of the Plaintiffs based upon Smith and Groover violating Frank Bluestein's constitutional right not to be deprived of his right to life without due process of life [sic], separate and apart from a policy practice, and procedure, a valid claim that has not been abandoned by Plaintiffs or stricken by the Court.

According to the defendants, on March 3 the court addressed the plaintiffs' concerns in court, outside the presence of the jury. The court indicated that it would allow the jury to consider the plaintiffs' individual capacity claims. The court added instruction 25, which instructed the jury that they could find Officers Smith and Groover liable even if the officers were acting independent of a plan or policy. ² The court also drafted Interrogatory III. The three questions contained in this interrogatory address the officers' liability in their individual capacities. In addition, the court instructed the jury, without objection from either party, on the defense of qualified immunity. The plaintiffs' objections and the court's response lead us to conclude that the plaintiffs succeeded in presenting their individual capacity claims to the jury.

The jury was...