Larson v. Neimi

• Decision Date: 19 November 1993
• Docket Number: No. 92-15873,92-15873
• Citation: Larson v. Neimi, 9 F.3d 1397 (9th Cir. 1993)
• Parties: Brian LARSON, Plaintiff-Appellee, v. Ronald NEIMI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1397

9 F.3d 1397

Brian LARSON, Plaintiff-Appellee, v. Ronald NEIMI, Defendant-Appellant.

No. 92-15873.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 5, 1993.

Decided Nov. 19, 1993.

James H. Wernicke, Deputy Atty. Gen., Sacramento, CA, for defendant-appellant.

Mark E. Merin and Frank R. Lawrence, Dickstein & Merin, Sacramento, CA, for plaintiff-appellee.

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

Before: TANG, TROTT, and FERNANDEZ, Circuit Judges.

FERNANDEZ, Circuit Judge:

Ronald Neimi, a sergeant with the California Highway Patrol, appeals from the order denying a new trial and from the judgment against him after a jury found him liable for the false arrest of Brian Larson. Neimi contends that the district court should have instructed the jury on the standard for general Fourteenth Amendment substantive due process claims rather than on the more specific standard for Fourth Amendment claims. He also contends that the court should not have resubmitted an apparently inconsistent verdict to the jury. We affirm.

BACKGROUND

On March 10, 1990, two tour buses collided in a snow storm on Highway 80 outside of Truckee, California. The driver of one of the buses was injured. Neimi responded to the scene in order to manage the situation and supply aid to the injured driver. While he was doing so, a passenger became vocal and engaged in a shoving match with Neimi. Then another passenger joined the vocal one. Neimi decided that as soon as he had a free moment he would arrest both of them for obstructing an officer. When that moment came, he arrested the other person. He also arrested Larson. Unfortunately, Larson was the wrong man. He told Neimi that, and others testified that Larson was not even in the vicinity of the altercation.

Larson then brought this action under 42 U.S.C. § 1983 on the ground that he was arrested in violation of the United States Constitution. He asserted, of course, that his Fourth Amendment right to be free from an unlawful seizure had been violated. For his part, Neimi claimed qualified immunity and also insisted that his conduct was to be tested by the general Fourteenth Amendment standard which applies to substantive due process claims.

The jury ultimately disagreed with Neimi and awarded damages to Larson. However, along the way the jury filled out a special verdict form in which it first declared that Neimi had qualified immunity but then awarded damages against him. With the approval of the parties, the district judge resubmitted the verdict to the jury for clarification. The jury clarified the verdict all right; it changed the form to say that Neimi did not have qualified immunity. Judgment followed and Neimi appealed.

JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. We have jurisdiction pursuant to 28 U.S.C. § 1291.

"Whether a jury instruction misstates the elements that must be proved at trial is a question of law that is reviewed de novo." Caballero v. City of Concord, 956 F.2d 204, 206 (9th Cir.1992). The district court's decision to resubmit a verdict to the jury for clarification is reviewed for abuse of discretion. See Mateyko v. Felix, 924 F.2d 824, 827 (9th Cir.1990), cert. denied, --- U.S. ----, 112 S.Ct. 65, 116 L.Ed.2d 40 (1991).

A district court's decision on a motion for a new trial is also reviewed for an abuse of discretion. United States v. 99.66 Acres of Land, 970 F.2d 651, 658 (9th Cir.1992).

DISCUSSION

A. The Fourth Amendment Instruction.

Neimi points out that the Fourth Amendment and other provisions of the Bill of Rights are applied to the states through the due process clause of the Fourteenth Amendment. So much is true, and has been for decades. Indeed, that concept has been on the legal landscape for so long that it is seldom even noticed. Neimi's next step is far more problematic. He argues that because the Bill of Rights' provisions do flow through the Fourteenth Amendment, the principles developed for deciding general claims of violation of due process must apply to the decision of claims regarding specific violations of the provisions of the Bill of Rights. Thus, he says, instruction of the jury on the Fourth Amendment standard was error. We disagree because, as we will show, the law is squarely against that contention. But before we do so, we must digress to discuss Larson's claim that Neimi did not preserve his instruction objection.

Larson's waiver argument turns on a colloquy that took place after the district court instructed the jury. The court asked if there were "any objections to the instructions as read," and Neimi's counsel said, "No." The requirement of Federal Rule of Civil Procedure 51 that specific objections to instructions must be made before the jury retires is strictly enforced in the Ninth Circuit. Hammer v. Gross, 932 F.2d 842, 847-48 (9th Cir.) (en banc), cert. denied, --- U.S. ----, 112 S.Ct. 582, 116 L.Ed.2d 607 (1991). "[T]he sole permissible deviation from the strictures of Rule 51 is that, where the trial court is aware of the party's concerns with an instruction and further objection would be unavailing, we will not require a formal objection." Id. at 847.

Neimi falls within the exception. The instruction was first discussed before trial, and the district court said it would give no such instruction. Nevertheless, Neimi filed a proposed instruction in that form and at the end of the jury charge conference he objected to the omission of that instruction. The district judge then stated his reasons for refusing to give the instruction. It is pellucid that the district court was well aware of Neimi's position and that further objection would have been unavailing. The fact that counsel courteously refrained from carrying on about the form of the instructions the district court gave did not, and does not, change the posture of the case. Neimi preserved his claim of error. See id.; Brown v. Avemco Inv. Corp., 603 F.2d 1367, 1370-73 (9th Cir.1979) (court was aware of objection through examination of witnesses, proposed instructions and a directed verdict motion); Martinelli v. City of Beaumont, 820 F.2d 1491, 1493-94 (9th Cir.1987) (court was fully aware of the objection where proposed alternate instructions and discussion made that clear); compare, United States v. Parsons Corp., 1 F.3d 944, 945 (9th Cir.1993) (a mere suggestion cannot take the place of an objection). We return to the main theme.

Neimi argues that the district court should have applied the principles developed by the Supreme Court in Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986), and Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). In those cases the plaintiffs alleged that their due process rights had been violated by the actions of prison authorities. In Davidson's case an official had negligently failed to supply adequate protection after being informed of threats by another inmate. 474 U.S. at 345-46, 106 S.Ct. at 669. In Daniels' case an official had negligently left a pillow on the prison stairway. Daniels stumbled on it and was injured. 474 U.S. at 328, 106 S.Ct. at 663. The Supreme Court opined that these due process claims were little more than tort actions dressed up in constitutional garb. It expressed a lack of interest in making the Constitution a "font of tort law to be superimposed upon whatever systems may already be administered by the States." Id. at 332, 106 S.Ct. at 665 (quotation and citation omitted). It characterized the rule to be applied to the two cases before it in the following manner:

In Daniels, we held that the Due Process Clause of the Fourteenth Amendment is not implicated by the lack of due care of an official causing unintended injury to life, liberty or property. In other words, where a government official is merely negligent in causing the injury, no procedure for compensation is constitutionally required.

Davidson, 474 U.S. at 347, 106 S.Ct. at 670.

It is that language which Neimi seizes upon and which drives his argument that a negligence standard must be applied to this case. What Neimi overlooks is the fact that the Supreme Court was dealing with merely negligent acts which were said to violate due process simply because they were performed by governmental officials. It was not dealing with situations where an official took a direct action against the citizen which violated a specific constitutional command. Nor was it dealing with an area where it had said that the specific constitutional provisions involved were "to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment." Malloy v. Hogan, 378 U.S. 1, 10, 84 S.Ct. 1489, 1495, 12 L.Ed.2d 653 (1964).

The case more directly in point is Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). In that case, the plaintiff sought to recover damages "for injuries allegedly sustained when law enforcement officers used physical force against him during the course of an investigatory stop." Id. at 388, 109 S.Ct. at 1868. The Court first rejected the notion that all excessive force claims should be addressed with a general Fourteenth Amendment due process standard. Id. at 393-94, 109 S.Ct. at 1870.

It went on to say that the first task is to identify the precise nature of the alleged constitutional violation. Id. Then:

In most instances, that will be either the Fourth Amendment's prohibition against unreasonable seizures of the person, or the Eighth Amendment's ban on cruel and unusual punishments, which are the two primary sources of constitutional protection against physically abusive governmental conduct. The validity of the claim must then be judged by reference to the specific constitutional standard which governs that right, rather than to some generalized ...