Morales v. Fry

• Decision Date: 16 October 2017
• Docket Number: Nos. 14-35944, 14-35991.,s. 14-35944, 14-35991.
• Citation: 873 F.3d 817
• Parties: Maria J. MORALES, Plaintiff-Appellant v. Sonya FRY, Officer, Member of the Seattle Police Department; Michelle Gallegos, Officer, Member of the Seattle Police Department; City of Seattle; Brian Rees, Officer, Member of the Seattle Police Department, Defendants-Appellees. Maria J. Morales, Plaintiff-Appellee, v. Sonya Fry, Officer, Member of the Seattle Police Department, Defendant, and Brian Rees, Officer, Member of the Seattle Police Department, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

873 F.3d 817

Maria J. MORALES, Plaintiff-Appellant

v.Sonya FRY, Officer, Member of the Seattle Police Department; Michelle Gallegos, Officer, Member of the Seattle Police Department; City of Seattle; Brian Rees, Officer, Member of the Seattle Police Department, Defendants-Appellees.

Maria J. Morales, Plaintiff-Appellee,

v.Sonya Fry, Officer, Member of the Seattle Police Department, Defendant,andBrian Rees, Officer, Member of the Seattle Police Department, Defendant-Appellant.

Nos. 14-35944, 14-35991.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 10, 2017 Seattle, Washington

Filed October 16, 2017

Darryl Parker (argued), Civil Rights Justice Center PLLC, Seattle, Washington, for Plaintiff-Appellant/Cross-Appellee.

Robert L. Christie (argued), Christie Law Group PLLC, Seattle, Washington; Peter S. Holmes, City Attorney; Christine L. Olson, Assistant City Attorney; Seattle City Attorney's Office, Seattle, Washington; for Defendants-Appellees/Cross-Appellants.

Before: M. Margaret McKeown, Carlos T. Bea, and N. Randy Smith, Circuit Judges.

Dissent by Judge Bea

OPINION

McKEOWN, Circuit Judge:

The primary issue in this appeal is whether the "clearly established" prong of the qualified immunity analysis should be submitted to a jury. Following the lead of nearly all of our sister circuits, we conclude that it is a question of law that must ultimately be decided by a judge.

Background

This case arises from Maria Morales's arrest during the May 1, 2012 "May Day" protests in Seattle. Morales, who was attending one of the rallies, was in downtown Seattle when Seattle Police Department officers began forming a "bike perimeter" on Pike Street to create a zone where a person who was arrested earlier could be safely moved to a transport van.

Officer Brian Rees asked Morales, who is five feet tall, 110 pounds, to move away from the street so that he could place his bicycle on the sidewalk as part of the perimeter. When Morales did not appear to hear him, he placed his right hand on her left shoulder to gain her attention. Rees testified that Morales pulled her arm away from him abruptly and said, "Get your fucking hand off of me" before stepping back.¹ Rees then lost sight of Morales.

Morales ended up squeezed between the sidewalk wall and the outside of the bike perimeter. She heard conflicting instructions from officers to move either east or west away from the perimeter. Eventually, there was an opening on the west side and Morales began to follow others who were moving west single file between the wall and the bike perimeter.

The way was narrow and Morales testified that she needed to turn Officer Sonya Fry's protruding bicycle handlebar to the side to create room to pass. Fry testified that she simultaneously perceived what felt like a punch to her chest. Seeing Morales closest to her, Fry believed that Morales had punched her and yanked Morales headlong over the bike, causing Morales to fall on her back on top of other bikes within the bike perimeter zone. Multiple officers then converged upon Morales while she was on the ground.

At some point during this altercation, with several officers holding Morales, Morales briefly lurched off the ground onto her feet. At this point, Rees, who had not been involved in subduing Morales, reached over and discharged his pepper spray in Morales's eyes for approximately one quarter of a second. The surrounding officers, including Rees, then physically subdued Morales.

Morales was arrested and charged with assault for the blow that Officer Fry perceived. Fry's initial police report stated that Morales yelled "Okay, bitch!" before punching her in the chest with a closed fist. When video of the incident surfaced online, the charges against Morales were dismissed. At trial, Fry conceded that she never heard Morales say "Okay, bitch!", that no one can be heard uttering those words on the video, and that she never saw Morales punch her in the chest.

Morales brought suit against the City of Seattle and several of the officers involved, making unlawful arrest and excessive force claims against Officer Fry and an excessive force claim against Officer Rees (collectively, the "Officers"). At summary judgment, the district court ruled that disputed factual issues, including whether Morales had said "Okay, bitch!" and whether she had punched Officer Fry, precluded granting Fry qualified immunity on the unlawful arrest and excessive force claims. The district court also ruled that disputed factual issues, including whether Officer Rees's use of pepper spray was accidental or intentional, precluded granting Rees qualified immunity on the excessive force claim.

The case then proceeded to a five-day jury trial. At the close of Morales's case-in-chief, the district court denied the Officers' motion for judgment as a matter of law under Fed. R. Civ. P. 50(a). The district court gave the jury instructions on the unlawful arrest and excessive force claims. Morales objected to Jury Instruction Nos. 20 and 21, arguing that they impermissibly submitted the legal question of qualified immunity to the jury.

The jury found for Morales on her excessive force claim against Rees, but not on her unlawful arrest and excessive force claims against Fry. The jury awarded $0 in damages to Morales.

After trial, the parties stipulated to $1 in nominal damages as required under Floyd v. Laws , 929 F.2d 1390, 1402–03 (9th Cir. 1991) (mandating an award of nominal damages where a jury finds a constitutional violation). The district court then denied Rees's renewed motion for judgment as a matter of law under Fed. R. Civ. P. 50(b), and awarded Morales $165,405 in attorney's fees as the prevailing party against Rees.

The Officers cross-appeal the district court's denial of qualified immunity to Rees on his Rule 50(b) motion, as well as the district court's award of attorney's fees to Morales as the prevailing party against Rees.

Analysis

I. Challenge to Jury Instructions on Qualified Immunity

A. Role of Judge or Jury as Decider

Qualified immunity shields government officials from civil liability unless a plaintiff establishes that: (1) the official violated a constitutional right; and (2) that right was "clearly established" at the time of the challenged conduct, such that "every reasonable official" would have understood that what he is doing violates that right. Ashcroft v. al-Kidd , 563 U.S. 731, 735, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (citation and internal quotation mark omitted). The chief issue in this appeal is whether the second prong of the qualified immunity analysis, whether the constitutional right was "clearly established," should have been submitted to the jury.² We hold that the "clearly established" inquiry is a question of law that only a judge can decide.

Morales's appeal of the jury's verdict in favor of Fry centers on Jury Instruction Nos. 20³ and 21⁴ . The parties and the district court agree that those instructions capture the "clearly established" question. That understanding is reflected in their text. Both instructions stated that "even if you find that [the Defendants] violated Plaintiff's constitutional rights ... [the Defendants] cannot be liable if [they] reasonably believed at the time [they] acted that [their] actions were in accordance with the law. But keep in mind that this reasonableness inquiry is an objective one. The question is whether every reasonable officer under those same circumstances would believe that" the action was unlawful. Rather than focusing on whether Morales's constitutional rights were violated, these instructions look to whether the officers would have known their conduct violated Morales's rights, an inquiry that requires the court to determine whether the law was "clearly established." See Ashcroft , 563 U.S. at 741, 131 S.Ct. 2074 ; Pearson v. Callahan , 555 U.S. 223, 244, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).

It was error for the district court to submit this inquiry to the jury. To understand why, it is useful to start with the foundations of the doctrine of qualified immunity. The doctrine protects public officials "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson , 555 U.S. at 231, 129 S.Ct. 808 (2009) (quoting Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ). Accordingly, the two prongs of qualified immunity balance two important, competing interests: the need to hold public officials accountable for irresponsible actions, and the need to shield them from liability when they make reasonable mistakes. Id.

By design, the issue of qualified immunity is usually resolved "long before trial." See Hunter v. Bryant , 502 U.S. 224, 228, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (per curiam). The Supreme Court has repeatedly stressed the importance of deciding qualified immunity "at the earliest possible stage in litigation" in order to preserve the doctrine's status as a true "immunity from suit rather than a mere defense to liability." See id. at 227, 112 S.Ct. 534 (quoting Mitchell v. Forsyth , 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) ). Early determination is often possible "because qualified immunity most often turns on legal determinations, not disputed facts." Sloman v. Tadlock , 21 F.3d 1462, 1468 (9th Cir. 1994). In addition, courts are now empowered to address the two prongs in whichever order would expedite resolution of the case. See Pearson , 555 U.S. at 236–39, 129 S.Ct. 808 (noting that it is frequently "quick[er] and easi[e]r" to determine whether a constitutional right was clearly established than whether it was violated), overruling Saucier v. Katz , 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).

In particular, the question of whether a particular constitutional right is "clearly established" is one that the Supreme Court has increasingly emphasized is...