Caballero v. City of Concord

• Decision Date: 05 February 1992
• Docket Number: No. 90-16089,90-16089
• Citation: 956 F.2d 204
• Parties: Philip CABALLERO, Plaintiff-Appellant, v. CITY OF CONCORD; Concord Police Dept.; R. Perryman; R. Maccaro, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 204

956 F.2d 204

Philip CABALLERO, Plaintiff-Appellant, v. CITY OF CONCORD; Concord Police Dept.; R. Perryman; R Maccaro, Defendants-Appellees.

No. 90-16089.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 6, 1991.

Decided Feb. 5, 1992.

Matthew Haley, The Haley Law Offices, Oakland, Cal., for plaintiff-appellant.

Sandra Ford Mock, Sellar, Hazard, Snyder, Kelly & Fitzgerald, Walnut Creek, Cal., for defendants-appellees.

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

Before BOOCHEVER and NORRIS, Circuit Judges, and GILLIAM, District Judge. ^*

WILLIAM A. NORRIS, Circuit Judge:

Louie Philip Caballero appeals from a judgment in favor of defendant-appellee R. Perryman, a Concord, California, police officer, finding that Officer Perryman was not liable under 42 U.S.C. § 1983 for false arrest in violation of the Fourth Amendment. We hold that the district court erred in instructing the jury that Officer Perryman could be found liable only if she specifically intended to violate Caballero's constitutional rights. Because that error is not harmless, we reverse and remand for a new trial.

I

On September 7, 1988, Caballero was driving his family home from a restaurant when he was pulled over for running a red light. Caballero got out of his car and began to argue with Officer Perryman that he was not guilty of any traffic violation. After several minutes of discussion, Perryman had Caballero perform six field sobriety tests and then arrested him for driving while intoxicated. Caballero's blood alcohol content one hour and twenty-five minutes after his arrest was determined to be .05%. Caballero was never charged.

Caballero brought suit against Officer Perryman and the City of Concord. All claims were dismissed except the § 1983 false arrest claim against Perryman, which was submitted to the jury. The district court instructed the jury that Caballero was required to prove that Perryman lacked probable cause to make the arrest. The district court also instructed the jury on the defense of "qualified immunity" or "good faith." Caballero did not object to either of these instructions. However, over Caballero's objections, the district court further instructed the jury that Caballero was required to prove that Perryman specifically intended to violate his constitutional rights. ¹ The jury found in favor of Perryman and this appeal followed.

II

We first consider whether the district court erred in instructing the jury that, in order to prevail on his § 1983 claim for false arrest, Caballero was required to show that Officer Perryman specifically intended to deprive him of his constitutional rights. Whether a jury instruction misstates the elements that must be proved at trial is a question of law that is reviewed de novo. United States v. Spillone, 879 F.2d 514, 525 (9th Cir.1989), cert. denied, --- U.S. ----, 111 S.Ct. 210, 112 L.Ed.2d 170 (1990).

42 U.S.C. § 1983 provides a remedy to individuals whose constitutional rights have been violated by persons acting under color of state law. See, e.g., Borunda v. Richmond, 885 F.2d 1384, 1391 (9th Cir.1988). Arrest by police officers without probable cause violates the Fourth Amendment's guarantee of security from unreasonable searches and seizures, giving rise to a claim for false arrest under § 1983. Id. It is well established that specific intent is not a prerequisite to liability under § 1983. Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 484, 5 L.Ed.2d 492 (1961), overruled on other grounds, Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Allison v. Wilson, 434 F.2d 646, 647 (9th Cir.1970), cert. denied, 404 U.S. 863, 92 S.Ct. 43, 30 L.Ed.2d 107 (1971).

Nor is specific intent required in order to establish a violation of the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 397-98, 109 S.Ct. 1865, 1872-73, 104 L.Ed.2d 443 (1989). Rather, "the question is whether the officer['s] actions are 'objectively reasonable' in light of the facts and circumstances confronting [her], without regard to [her] underlying intent or motivation." Id. at 397, 109 S.Ct. at 1872. To paraphrase Graham: "An officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable [arrest]; nor will an officer's good intentions make an objectively unreasonable [arrest] constitutional." Id.

The cases cited by Perryman establish only that negligence by state officials does not violate the due process clause of the Fourteenth Amendment. See DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189, 195-96, 109 S.Ct. 998, 1003-04, 103 L.Ed.2d 249 (1989) (failure to prevent child abuse by private actor); Davidson v. Cannon, 474 U.S. 344, 347-48, 106 S.Ct. 668, 670-71, 88 L.Ed.2d 677 (1986) (failure to take seriously report that one prisoner was threatening another); Daniels v. Williams, 474 U.S. 327, 332-33, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986) (negligently leaving pillow on stairs); Stevenson v. Koskey, 877 F.2d 1435, 1441 (9th Cir.1989) (negligence of probation officer in allowing guard to open prisoner's mail); Archie v. City of Racine, 847 F.2d 1211, 1220 (7th Cir.1988), cert. denied, 489 U.S. 1065, 109 S.Ct. 1338, 103 L.Ed.2d 809 (1989) (failure to provide timely rescue services). The Supreme Court has been careful to distinguish instances of negligence from situations where an official is "abusing governmental power, or employing it as an instrument of oppression," Davidson, 474 U.S. at 348, 106 S.Ct. at 670, and this circuit has noted that these due process cases have "little relevance to a 1983 action involving fourth amendment rights." Borunda, 885 F.2d at 1391.

Because neither § 1983 nor the Fourth Amendment requires specific intent, we hold that the district court's instruction to the jury was error.

III

An error in instructing the jury in a civil case requires reversal unless the error is more probably than not harmless. Coursen v. A.H. Robins Co., Inc., 764 F.2d 1329, 1337 (9th Cir.1985). While this standard of review is less stringent than review for harmless error in a criminal case, it is more stringent than review for sufficiency of the evidence, in which we view the evidence in the light most favorable to the prevailing party. See, e.g., United States v. Adler, 879 F.2d 491, 495 (9th Cir.1988). In reviewing a civil jury instruction for harmless error, the prevailing party is not entitled to have disputed factual questions resolved in his favor because the jury's verdict may have resulted from a misapprehension of law rather than from factual determinations in favor of the prevailing party.

We conclude that the trial court's error in instructing the jury was not harmless based on several considerations. First, we note that the nature of the instruction in this case makes it unlikely that the error would be harmless. By instructing the jury that specific intent needed to be shown, the trial court erroneously added an extra element to Caballero's burden of proof. Specific intent, moreover, is an element that is difficult to prove. A jury could easily find the elements necessary to establish liability for false arrest but not find the specific intent to violate constitutional rights.

Second, nothing about this verdict indicates that the result would have been the same without the error. Thus, this case is unlike others in which we have held that an error in instructing the jury was more probably than not harmless. See, e.g., Benigni v. City of Hemet, 879 F.2d 473, 480 (9th Cir.1988) (failure to instruct the jury on reasonableness was harmless...