C.B. v. City of Sonora

• Decision Date: 15 October 2014
• Docket Number: No. 11–17454.,11–17454.
• Citation: 769 F.3d 1005
• Parties: C.B., a minor, Plaintiff–Appellee, v. CITY OF SONORA; Mace McIntosh, Chief of Police; Hal Prock, Officer, Defendants–Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

769 F.3d 1005

C.B., a minor, Plaintiff–Appellee
v.
CITY OF SONORA; Mace McIntosh, Chief of Police; Hal Prock, Officer, Defendants–Appellants.

No. 11–17454.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted En Banc March 17, 2014.
Filed Oct. 15, 2014.

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Stephanie Y. Wu (argued) and Cornelius J. Callahan, Borton Petrini LLP, Modesto, CA, for Defendants–Appellants.

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Julia Levitskaia (argued), John F. Martin, and Georgelle Christina Heintel, Law Offices of John F. Martin, Walnut Creek, CA, for Plaintiff–Appellee.

Appeal from the United States District Court for the Eastern District of California, Oliver W. Wanger, Senior District Judge, Presiding. D.C. No. 1:09–cv–00285–AWI–SMS.

Before: ALEX KOZINSKI, Chief Judge, and DIARMUID F. O'SCANNLAIN, SIDNEY R. THOMAS, BARRY G. SILVERMAN, SUSAN P. GRABER, RONALD M. GOULD, RICHARD A. PAEZ, MARSHA S. BERZON, RICHARD C. TALLMAN, JAY S. BYBEE AND MILAN D. SMITH, JR., Circuit Judges.

Opinion by Judge PAEZ as to all but Part II.C.1; Opinion by Judge M. SMITH as to Part II.C.1; Partial Concurrence and Partial Dissent by Judge M. SMITH ; Concurrence by Judge GOULD ; Partial Concurrence and Partial Dissent by Judge BERZON.

OPINION

PAEZ, Circuit Judge:

This case arises out of a decision by Sonora City Police Department officers to handcuff and remove from school grounds an 11-year-old child with attention-deficit and hyperactivity disorder (“ADHD”) who was doing nothing more than sitting quietly and resolutely in the school playground. After a seven-day trial, a jury found that the City of Sonora, Sonora Chief of Police Mace McIntosh, and Officer Harold Prock (collectively “Defendants”) were liable for violating C.B.'s Fourth Amendment rights and for tortious acts. The district court subsequently entered judgment on the verdict, and Defendants appeal.

We must decide two central issues. First, we must decide whether the district court's supplemental jury instructions were proper. To resolve this question, we also must determine whether litigants may object to civil jury instructions for the first time on appeal and, if so, what standard of review governs such challenges. Second, we must decide whether the district court erred in denying the individual officers qualified immunity on C.B.'s constitutional claims. Additionally, Defendants raise several evidentiary and post judgment arguments, which we also address. After setting forth the factual and procedural background of the case, we turn to the district court's supplemental instructions.

I. FACTUAL AND PROCEDURAL BACKGROUND

A.

On September 28, 2009, sixth-grader C.B. was having a “rough” day at school. C.B. had been diagnosed with ADHD and took prescribed medications to manage his symptoms, but that morning, he had forgotten to take his medications. As a result, he experienced periods of unresponsiveness throughout the day; C.B., his parents, and school officials described this as C.B. “shutting down.” The school was aware of C.B.'s ADHD and had an accommodation plan under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, in place for him. The accommodation plan designated Coach Karen Sinclair's office as a safe space where C.B. could go if he was experiencing a “shut down,” to calm himself and refocus until he was ready to return to class.

Unfortunately, that day, things did not unfold according to plan. When C.B. experienced a “shut down” during recess, Coach Sinclair tried to convince him to go to her office, but C.B. remained unresponsive

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and refused to leave the playground. According to Coach Sinclair, during this exchange, C.B. “reared up” on three different occasions from the bench where he was sitting. Coach Sinclair then advised C.B. that if he did not come inside, she would call the police. To this, C.B. allegedly responded by saying, “call them.” C.B., however, testified that he never moved from the bench or said anything to Coach Sinclair during this interaction.

Coach Sinclair testified that she made the decision to call the police because she was concerned about C.B.'s safety. She explained that her concern was based on an incident two years earlier, during which C.B. had stated that “he was tired of feeling the way he felt and he wanted to go out into traffic and kill himself.” Coach Sinclair was particularly concerned because the street outside the schoolyard was a busy thoroughfare. Coach Sinclair admitted, however, that C.B. had never previously attempted to run from her.

At Coach Sinclair's behest, police were called. The police dispatcher broadcast notice to the officers of “an out of control juvenile.” When Chief McIntosh arrived at the playground, Coach Sinclair whispered to him, “[r]unner [,] [n]o medicine,” and made corresponding hand signals. Chief McIntosh testified that he then sat down next to C.B. and attempted to engage him in conversation, but C.B. was unresponsive. He further testified that Coach Sinclair then “started telling [him] that [C.B.] was out of control, had not taken his medications, was yelling and cussing.” She also advised Chief McIntosh that she no longer wanted C.B. on the school grounds. Chief McIntosh did not ask any followup questions about C.B.'s medications or behavior. C.B. remained completely quiet and unresponsive throughout the time Chief McIntosh was with him.

Coach Sinclair's testimony contradicted much of Chief McIntosh's account. She did not remember Chief McIntosh ever making any effort to engage C.B. in conversation. Beyond her initial statement that C.B. was a “runner” who had not taken his medication, she could not recall conveying any other information to the police until she was subsequently asked whether she wanted C.B. removed from the school grounds, to which she said yes. Specifically, she testified that she did not inform the police why she thought C.B. might run, what medications he was on, C.B.'s history, or what had transpired earlier that day. C.B. recalled Coach Sinclair telling Chief McIntosh only that he was a “runner.”

Within a few minutes of Chief McIntosh's arrival, Officer Prock arrived. He testified that when he arrived, C.B. was sitting quietly, looking at the ground. Coach Sinclair also advised him that C.B. was a “runner,” but Officer Prock did not learn that C.B. had not taken his medication until much later. Officer Prock tried to engage C.B. in conversation, but he remained unresponsive.

About three and a half minutes after Officer Prock arrived, Chief McIntosh signaled that Officer Prock should handcuff C.B. Officer Prock ordered C.B. to stand up, which he did immediately. He then instructed C.B. to put his hands behind his back—which C.B. again did immediately—and handcuffed him. Notwithstanding the fact that C.B. had not disobeyed a single police order, the officers did not explore alternative options for handling the situation before handcuffing him. When Officer Prock handcuffed C.B., C.B. began to cry, believing that he was being taken to jail.

Once C.B. was handcuffed, the officers and Coach Sinclair escorted him off the playground. Officer Prock then pulled his

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police vehicle around and directed C.B.—still in handcuffs—into the back seat. C.B. complied immediately. During this entire time, no one spoke to C.B. or explained to him why he had been handcuffed, that he was not under arrest, or where the police were taking him. Officer Prock then transported C.B. to his uncle's business.¹ Although Officer Prock's vehicle was equipped with safety locks, making it impossible for C.B. to escape, C.B. remained handcuffed during the approximately thirty-minute ride to his uncle's place of business. C.B. testified that the handcuffs caused him pain and left red marks.

Coach Sinclair, who was also the school disciplinarian, testified that in the three years before this incident, she had summoned police to Sonora Elementary School about fifty times. Of those fifty times, police used handcuffs about twenty times, even though about thirteen of those twenty instances did not involve any known or suspected criminal activity. When Officer Prock was handcuffing C.B., Coach Sinclair asked whether the handcuffs were “really necessary,” to which one of the officers replied that it was “procedure.”² She further testified that she knew this was the police department's procedure because, in her experience, “any time that the police have to take a child off of campus, whether it be medical, drugs, fight, the child is handcuffed.” Officer Prock also testified that he understood the police department's policy to permit officers to handcuff any individual they were transporting in the back of a police vehicle.

Following this incident, C.B. experienced a host of psychological and emotional problems, including difficulty sleeping, low self-esteem, anger, irritability, and depression.

B.

C.B. filed this action against the Sonora School District, Coach Sinclair, the City of Sonora, Sonora Chief of...