Gulliford v. Pierce County

• Decision Date: 27 February 1998
• Docket Number: No. 96-35614,96-35614
• Citation: 136 F.3d 1345
• Parties: , 98 Cal. Daily Op. Serv. 1402, 98 Daily Journal D.A.R. 1959 Herbert GULLIFORD, Plaintiff-Appellant, v. PIERCE COUNTY, a municipality and governmental subdivision of the State of Washington; John Shields, Sheriff of Pierce County; Paul Thrash, individually and as Pierce County Deputy Sheriff; Terrill Larson, individually and as Pierce County Deputy Sheriff; P. Donnelly, individually, and as Pierce County Deputy Sheriff, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1345

136 F.3d 1345

40 Fed.R.Serv.3d 255, 98 Cal. Daily Op. Serv. 1402,

98 Daily Journal D.A.R. 1959

Herbert GULLIFORD, Plaintiff-Appellant, v. PIERCE COUNTY, a municipality and governmental subdivision of the State of Washington; John Shields, Sheriff of Pierce County; Paul Thrash, individually and as Pierce County Deputy Sheriff; Terrill Larson, individually and as Pierce County Deputy Sheriff; P. Donnelly, individually, and as Pierce County Deputy Sheriff, Defendants-Appellees.

No. 96-35614.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 7, 1997.

Decided Feb. 27, 1998.

Joel Feldman, Lakewood, WA, for plaintiff-appellant.

Daniel Hamilton, Tacoma, WA, for defendants-appellees.

Appeal from the United States District Court for the Western District of Washington; Robert J. Bryan, District Judge, Presiding. D.C. No. CV-94-05658-RJB.

Before: FLETCHER and O'SCANNLAIN, Circuit Judges, and SCHWARZER, ^* District Judge.

Opinion by Judge FLETCHER; Partial Concurrence and Partial Dissent by Judge O'SCANNLAIN.

FLETCHER, Circuit Judge:

Herbert Gulliford appeals the judgment entered following a jury trial in his 42 U.S.C. § 1983 action against Pierce County and various law enforcement officials alleging that his constitutional rights were violated when he was arrested for obstructing a public servant and resisting arrest. Gulliford contends that the district court erred in its instructions to the jury regarding his wrongful arrest and excessive force claims. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part, reverse in part, and remand for a new trial.

I.

On the evening of September 6, 1992, a group of individuals were gathered around a fire on the north beach of Herron Island, a small privately owned island located just within the borders of Pierce County, Washington, west of Key Peninsula. At about 9:20 p.m. that night, the Pierce County Sheriff's Department ("PCSD") received a call that someone in the environs of the group had threatened a woman's family. About two hours later, the PCSD received a report that "J.D.", a member of the group gathered on the beach, had threatened a firefighter who attempted to extinguish the group's fire. In response, the three named deputy sheriffs, Thrash, Larson and Donnelly, were dispatched to the island to arrest J.D. and extinguish the fire.

Upon arriving on the island, the deputies were informed that J.D. had gone home. Deputy Thrash told the group, "This party is over, people," but none of the members left the beach. In response to Deputy Thrash's next statement that "I'm tired of this. This is a waste of government ...," Gulliford replied, "Then why don't you hop on the ferry, hop on the ferry and go back." Deputy Thrash then maneuvered through the crowd, grabbed Gulliford from behind, and placed him under arrest for obstructing a public servant in violation of Wash. Rev.Code. § 9A.76.020. ¹

At this point, Gulliford intentionally fell to a sitting position and refused to comply with orders to stand and put his hands behind his back. The deputies grabbed Gulliford's arms, put him in a "hair hold," and placed a knee in his back. Although Gulliford did not kick out at or otherwise assault the officers, he continued passively to resist arrest. Deputies Larson and Donnelly then sprayed pepper spray in Gulliford's face. The deputies were eventually able to get one of Gulliford's wrists in handcuffs, and, after a second spraying in the face with pepper spray, Gulliford ceased resisting. Gulliford was additionally cited for resisting arrest pursuant to Wash. Rev.Code § 9A.76.040. ²

Gulliford was taken to the Pierce County Jail and held there until he posted bond. The deputies never claimed that they thought that Gulliford was "J.D.", and no charges were ever filed against Gulliford. Gulliford contends that he suffered permanent injuries as a result of the officers' use of force in effecting the arrest.

Claiming that he was wrongfully arrested and that the deputies used excessive force in violation of his First, Fourth and Fourteenth Amendment rights, Gulliford filed this § 1983 action against Pierce County, Pierce County Sheriff John Shields, and, in their individual as well as official capacities, the three deputies, Thrash, Larson and Donnelly. The claims against Pierce County, however, were dismissed by stipulation of the parties on October 30, 1995. ³

The case was tried for three weeks before an eight person jury, although the wrongful arrest claims as to Larson and Donnelly were dismissed on defendant's motion for a directed verdict and were never submitted to the jury. The jury returned verdicts for Deputy Thrash on the wrongful arrest claim and for all defendants on the excessive force claim.

II.

Gulliford contends that two of the instructions given to the jury were erroneous. "Jury instructions must be formulated so that they fairly and adequately cover the issues presented, correctly state the law, and are not misleading." Chuman v. Wright, 76 F.3d 292, 294 (9th Cir.1996). When the alleged error is in the formulation of the instructions, the instructions are to be considered as a whole and an abuse of discretion standard is applied to determine if they are misleading or inadequate. Masson v. New Yorker Magazine, Inc., 85 F.3d 1394, 1397 (9th Cir.1996). However, when the claim is that the trial court misstated the elements that must be proved at trial, the reviewing court must view the issue as one of law and review the instruction de novo. Fireman's Fund Ins. Cos. v. Alaskan Pride Partnership, 106 F.3d 1465, 1469 (9th Cir.1997).

A.

Jury Instruction Number 15 stated in pertinent part:

The First Amendment protects the right of citizens to verbally oppose and/or challenge police action without risking arrest so long as that challenge does not knowingly hinder, delay, or obstruct any public servant in the discharge of the public servant's official powers or duties.

On appeal, Gulliford claims that his arrest for Obstructing a Public Servant was without probable cause. He contends that Jury Instruction Number 15 does not state a crime because verbal protests or challenges to the police are permitted, even if they knowingly hinder, delay or obstruct the police. To be criminal, the words must be fighting words. He makes the further point that § 9A.76.020, which prohibits hindering, delaying or obstructing a public servant, criminalizes conduct only, not words. He is correct.

As a preliminary matter, Pierce County argues that Gulliford is precluded from raising this issue on appeal because he failed to object properly at trial. Specifically, Pierce County contends that the record of Gulliford's exceptions to Jury Instruction Number 15 "is devoid of any mention of the First Amendment's claimed effect on probable cause...." ⁴

Federal Rule of Civil Procedure 51 provides that "No party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection." It is the responsibility of the litigants to ensure compliance with FRCP 51, and we have generally interpreted that rule "strictly." McGonigle v. Combs, 968 F.2d 810, 823 (9th Cir.), cert. dismissed, 506 U.S. 948, 113 S.Ct. 399, 121 L.Ed.2d 325 (1992). However, we have recognized "a limited exception" to the strict interpretation of FRCP 51: " 'Where the district court is aware of the party's concerns with an instruction, and further objection would be unavailing, we will not require a futile formal objection.' " Id. (citation omitted). Specifically, we have held that such an objection is a pointless formality " 'when (1) throughout the trial the party argued the disputed matter with the court, (2) it is clear from the record that the court knew the party's grounds for disagreement with the instruction, and (3) the party offered an alternative instruction.' " Glover v. BIC Corp., 6 F.3d 1318, 1326 (9th Cir.1993) (quoting United States v. Payne, 944 F.2d 1458, 1464 (9th Cir.1991), cert. denied, 503 U.S. 975, 112 S.Ct. 1598, 118 L.Ed.2d 313 (1992)).

Gulliford meets the requirements of the "pointless formality" test. The instruction he proposed (No. 31) stated:

Defendants claim that they had probable cause to arrest plaintiff for obstructing a police officer in the conduct of his lawful duties. The First Amendment protects the right of citizens to verbally opposed and/or challenge police action so long as that challenge does not involve a threat or fighting words.

* * * * * * City of Houston v. Hill, 482 U.S. 451, 462, 107 S.Ct. 2502, 2510, 96 L.Ed.2d 398 (1987).

As in Glover v. BIC Corp., Gulliford's proposed instruction was an "accurate statement[ ] of the law which should have brought to the court's attention the failure of the general charge to adequately address the issue of" probable cause. 6 F.3d at 1327. In Glover, we held that such a proposed instruction was sufficient despite the party's failure to object to instructions as given. Id. Here, in contrast to Glover, not only did Gulliford propose an alternative jury instruction, he also objected in open court to Jury Instruction Number 15, albeit in less specific terms, and the parties concede that additional discussions regarding the jury instructions occurred off the record in chambers. ⁵ We are thus satisfied that the district court knew of Gulliford's grounds for disagreement, and that, on the instant record, the "proposed [probable cause] instruction[ ] will serve as an objection to the instructions given the jury." Id.; cf. United States v. Payne, 944 F.2d 1458, 1463-64 (9th Cir.1991), cert. denied, 503 U.S. 975, 112 S.Ct. 1598, 118 L.Ed.2d 313 (1992) (specific objection not a "pointless formality" where it was clear from the record that failure to give a presumption of innocence instruction was due to simple oversight and counsel failed to alert the...