Monroe v. City of Phoenix

Citation248 F.3d 851
Decision Date17 April 2001
Docket NumberNo. 99-16974,99-16974
Parties(9th Cir. 2001) JUSTIN TERRANCE MONROE, Plaintiff-Appellant, v. CITY OF PHOENIX, ARIZONA; DONALD SHERRARD, husband; JANE DOE SHERRARD, wife, Defendants-Appellees
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Tony K. Behrens, Law Offices of Tony K. Behrens, Glendale, Arizona, for plaintiff-appellant Justin Terrance Monroe.

Daniel P. Struck (argued) and David C. Lewis, Jones, Skelton & Hochuli, Phoenix, Arizona, for defendants-appellees City of Phoenix and Donald Sherrard.

Appeal from the United States District Court for the District of Arizona; Paul G. Rosenblatt, District Judge, Presiding. D.C. No. CV-96-02188-PGR.

Before: Michael Daly Hawkins, M. Margaret McKeown, and Kim McLane Wardlaw, Circuit Judges.

McKEOWN, Circuit Judge:

The primary issue in this police-shooting case is whether the district court erred by giving the jury an excessive force instruction rather than a deadly force instruction pursuant to Tennessee v. Garner, 471 U.S. 1, 85 L. Ed. 2d 1, 105 S. Ct. 1694 (1985). Justin Monroe brought suit against Sgt. Donald Sherrard, an officer with the Phoenix Police Department, and the City of Phoenix (collectively, the "City"), alleging federal civil rights violations and state tort claims arising from an altercation in which Sgt. Sherrard shot Monroe. A jury returned a verdict in favor of the City on all claims. Monroe now appeals the district court's denial of his motions for judgment as a matter of law under Federal Rule of Civil Procedure 50. We conclude that while the district court should have instructed the jury regarding the deadly force standard, the error was harmless. Therefore, we affirm the district court's denial of Monroe's motions and also affirm the district court's rulings on the various other trial challenges presented in this appeal.

BACKGROUND 1

Late on September 22, 1995, in an industrial area of Phoenix, Monroe burglarized a check-cashing business, stealing more than $ 600 in rolled coins. At the time of the burglary, Monroe was armed with a long hunting knife, carried in a sheath; also, he had two pocket knives with three-inch blades, a screwdriver, and a pair of pliers in his pockets.

During the burglary, Monroe's companion, Tina Lopez, was waiting for him outside the check-cashing business with a ten-speed bicycle. Following the burglary, they rode away from the scene on the bicycle. Lopez carried the coins inside a pair of sweat pants that had been tied as a bag. At some point, Lopez dropped the heavy coins, spilling them onto the street, so they got off the bicycle and began gathering the coins.

Meanwhile, Sgt. Sherrard, driving nearby in his patrol car, had just heard a burglar alarm going off. He came across Monroe and Lopez, who were down on the ground near the bicycle, which was lying on the ground. Sgt. Sherrard, believing that Monroe and Lopez might have been in an accident, drove next to them and started to get out of his car to ask if they were okay. Monroe then picked up the bicycle and began to ride away, leaving Lopez behind. When Sgt. Sherrard asked if everyone was okay, Monroe turned the bicycle around and came back toward him. Although Monroe said that his bicycle had a flat tire, Sgt. Sherrard felt the tire, concluding that it was not flat.

While talking with Monroe about the bicycle, Sgt. Sherrard noticed the hunting knife, which was sticking out of Monroe's pants. When asked, Monroe took it out and showed it to Sgt. Sherrard. Although Monroe tried to return the knife to his pants, Sgt. Sherrard took it from him and put it on the trunk of the patrol car.

What happened next is hotly contested by the parties, who testified at trial to drastically divergent versions of the events. In short, Monroe claims that Sgt. Sherrard shot him while he was surrendering, and Sgt. Sherrard claims that he shot Monroe during a physical altercation because he believed that Monroe was going to seriously injure or kill him.

According to Monroe, he showed Sgt. Sherrard both the hunting knife and the two pocket knives that he had in his pocket, and Sgt. Sherrard allowed him to put the pocket knives back into his pocket. Sgt. Sherrard testified, however, that he noticed that Monroe's left pocket was large and lumpy. Concerned about other weapons, Sgt. Sherrard asked Monroe what he had in his pockets. Monroe told him that he had tools. Feeling the left pocket to see if he could identify its contents as a weapon, Sgt. Sherrard felt what he thought might be a small .25 automatic pistol.

Monroe began to become agitated. When he tried to put his feet on the bicycle pedals and started to move away, Sgt. Sherrard grabbed his wrist and asked him if he had any identification. Monroe pulled away and cursed Sgt. Sherrard. As Monroe did so, he swung his right arm at Sgt. Sherrard, striking him in the head with a heavy object, which Sgt. Sherrard later concluded must have been the bag of coins.

After being hit, Sgt. Sherrard stumbled backward, drew his weapon, pointed it at Monroe, and ordered him to lie down on the ground. At the same time, Monroe dropped the bicycle and began to run away. Sgt. Sherrard gave chase, giving Monroe several orders to stop and threatening to shoot. When Sgt. Sherrard caught up with Monroe, he grabbed Monroe's shirt.

Sgt. Sherrard ordered Monroe to stop and go to the ground. Monroe did not comply; rather, he began pulling Sgt. Sherrard back toward the patrol car. Sgt. Sherrard put his gun back into the holster to get a better hold on Monroe's shirt. As Monroe dragged Sgt. Sherrard back toward the patrol car, Monroe was able to twist out of his shirt. He then turned to run. Sgt. Sherrard continued to order Monroe to stop and lie down on the ground.

When Sgt. Sherrard again got ahold of Monroe, Monroe spun around and a wrestling match ensued on the hood of the patrol car. Monroe wrapped his arms around Sgt. Sherrard and pushed him against the car, repeatedly lifting Sgt. Sherrard off the ground and pushing him against the car. Because of the position of the car relative to the curb, Sgt. Sherrard could not regain his footing. Sgt. Sherrard repeatedly told Monroe to stop resisting arrest and comply by going to the ground; Monroe yelled profanities at him.

At some point during the struggle, Sgt. Sherrard felt a tug on his gunbelt and thought that Monroe might be trying to pull his gun out of the holster. Sgt. Sherrard could not see Monroe's hands, although he thought that Monroe might have a gun in his pocket. Sgt. Sherrard then drew his gun from the holster to prevent Monroe from grabbing it. He tried to push Monroe away, stand up, and get his balance, while Monroe continued to push him against the hood of the car. Sgt. Sherrard told Monroe to stop or he would shoot him. After a continued struggle, Sgt. Sherrard shot Monroe at close range in the abdomen, causing significant injuries.

Monroe's version varies markedly. He claims that he began to run away from Sgt. Sherrard, running fifteen to twenty feet before surrendering, with both arms raised. He complied with Sgt. Sherrard's request to come toward him, thinking that Sgt. Sherrard was going to handcuff him when, instead, he shot him. Monroe denied that he hit Sgt. Sherrard or that he had any physical altercation with him.

Monroe pled guilty to the burglary and was sent to prison. He then brought suit against the City under 42 U.S.C. 1983, claiming violation of his civil rights, and also asserted state tort claims for false arrest and imprisonment, assault, and battery. The parties stipulated to dismissal of the 1983 claim against the City of Phoenix and waiver of qualified immunity by Sgt. Sherrard, with the assurance that any judgment entered against him would be collectible from the City of Phoenix.

The case proceeded to a three-day jury trial. At the close of the evidence, Monroe orally moved for judgment as a matter of law under Rule 50. The district court judge denied the motion and submitted the case to the jury, which returned a verdict in favor of the City on all claims. Post-trial, Monroe filed a renewed Rule 50 motion and motion for a new trial under Rule 59. The district court denied both motions, and Monroe filed a timely appeal.

ANALYSIS
I. JURY SELECTION

Monroe argues that the jury selection process was impaired because the district court did not inquire about the jurors' feelings and opinions regarding police misconduct litigation, and specifically, litigation concerning the now well-known Rodney King case and a high-profile case involving the Phoenix Police Department and an individual named Edward Mallet. According to Monroe, the judge's error in instructing the jury (i.e., failing to give a specific instruction regarding police officer testimony, which we address below) compounded this problem. In this instance, we review the district court's conduct during voir dire for abuse of discretion. Scott v. Lawrence, 36 F.3d 871, 874 (9th Cir. 1994).

We conclude that the district court did not abuse its discretion by declining to use Monroe's proposed voir dire questions. In reviewing a challenge to voir dire, we are mindful that "voir dire ought to be adequate to assure an impartial jury, by enabling the parties intelligently to exercise their challenges." Paine v. City of Lompoc, 160 F.3d 562, 564 (9th Cir. 1998); accord Darbin v. Nourse, 664 F.2d 1109, 1113 (9th Cir. 1981) ("[A] voir dire examination must be conducted in a manner that allows the parties to effectively and intelligently exercise their right to peremptory challenges and challenges for cause.") (footnote omitted). As we explained in Darbin:

If an inquiry requested by counsel is directed toward an important aspect of the litigation about which members of the public may be expected to have strong feelings or prejudices, the court should adequately inquire into the subject on...

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