Nava v. City of Dublin

• Decision Date: 28 July 1997
• Docket Number: No. 95-16209,95-16209
• Citation: 121 F.3d 453
• Parties: 97 Cal. Daily Op. Serv. 5942, 97 Daily Journal D.A.R. 9547 Scott Bennett NAVA, individually and as the duly appointed administrator of the estate of Randolph Bennett, Plaintiff-Appellee, v. CITY OF DUBLIN, Defendant, and California Highway Patrol; Maurice Hannigan, Commissioner; James A. Williams, individually and in his official capacity as a California Highway Patrol Officer; Craig Howard Whitty, individually and in his official capacity as a California Highway Patrol Officer, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 453

121 F.3d 453

97 Cal. Daily Op. Serv. 5942, 97 Daily Journal

D.A.R. 9547

Scott Bennett NAVA, individually and as the duly appointed administrator of the estate of Randolph Bennett Plaintiff-Appellee, v. CITY OF DUBLIN, Defendant and California Highway Patrol; Maurice Hannigan, Commissioner James A. Williams, individually and in his official capacity as a California Highway Patrol Officer; Craig Howard Whitty, individually and in his official capacity as a California Highway Patrol Officer, Defendants-Appellants.

No. 95-16209.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 4, 1996.

Decided July 28, 1997.

Tyler B. Pon, Supervising Deputy Attorney General of the State of California, Wilfred T. Fong, Deputy Attorney General, San Francisco, CA, for Defendants-Appellants.

Dennis P. Reardon, San Francisco, CA, Andrew C. Schwartz, Rachel K. Bernstein, Brian T. Moore, Casper, Meadows & Schwartz, Walnut Creek, CA, for Plaintiff-Appellee.

Appeal from the United States District Court for the Northern District of California; Claudia Wilken, District Judge, Presiding. D.C. No. CV-93-1309-CW.

Before: SKOPIL and FLETCHER, Circuit Judges, and RHOADES, ^* District Judge.

Opinion by Judge SKOPIL; Concurrence by Judge FLETCHER.

SKOPIL, Circuit Judge:

We examine in this appeal the propriety of the district court's entry of a permanent injunction preventing the California Highway Patrol ("CHP") from authorizing its officers to apply the carotid hold, a type of chokehold used to subdue resisting suspects, unless application of the chokehold is necessary to prevent death or serious bodily harm to an officer or third party.

Facts and Prior Proceedings

On April 15, 1992, Randolph Bennett was stopped by CHP officer James Williams for illegally walking on the shoulder of Highway 580 in Pleasanton, California. As Officer Williams attempted to remove Bennett from the shoulder of the road, a struggle ensued and Williams alerted his dispatcher that he needed assistance. CHP officer Craig Whitty arrived on the scene a few moments later and joined the struggle. To subdue Bennett, Whitty endeavored to apply a carotid hold. After the hold had been applied for several seconds, Bennett lost consciousness. When paramedics arrived, Bennett did not respond to emergency treatment, and he was later pronounced dead at the San Ramon Medical Center.

On April 13, 1993, Bennett's son, Scott Bennett Nava, individually and as the administrator of his father's estate, filed this action in federal district court seeking damages and an injunction pursuant to 42 U.S.C. § 1983. The defendants relevant to this appeal are the CHP, its commissioner Maurice Hannigan, and CHP officers Whitty and Williams (collectively herein "CHP"). The case was tried to a jury, which returned a verdict finding the following constitutional violations: that Officer Whitty deprived Bennett of his constitutional rights by using excessive force; that Commissioner Hannigan promulgated a policy which was followed and which caused Bennett to be deprived of his constitutional right to be free from the use of excessive force; that Hannigan failed to train CHP officers adequately, causing Bennett to be deprived of his constitutional right to be free from the use of excessive force; and that Officers Whitty and Williams deprived Bennett of his constitutional rights by being deliberately indifferent to his medical needs. The jury awarded Nava $470,000 in compensatory and punitive damages.

After the jury reached its verdict, the district court considered whether an injunction should issue. The court found that there was substantial evidence at trial that the carotid hold is deadly, and that the CHP's policy is to use the carotid hold when deadly force is not justified. Accordingly, "in light of the jury verdict," the court entered a permanent injunction: (1) ordering the CHP and Commissioner Hannigan "to formulate a policy on excessive force which includes clear instructions that the carotid hold may not be used unless the application of such force is necessary to prevent death or serious bodily harm to an officer or third party"; (2) forbidding CHP officers from using the carotid hold "except when the application of such force is necessary to prevent death or serious bodily harm to an officer or third party"; and (3) ordering the CHP to submit to the court for review a final draft of the policy required by the injunction, as well as a plan for immediate implementation of adequate training on use of the carotid hold, "which shall [a] train officers in compliance with the new policy, [b] train officers how to use the carotid hold effectively and safely on struggling persons, [c] train officers when to release the hold if it does not result in unconsciousness and [d] train officers on medical procedures to be followed after applying the hold, including avoiding positional asphyxia and administering cardiopulmonary resuscitation."

The defendants timely appealed the district court's entry of the permanent injunction.

Mootness of the Appeal

As a threshold matter, we must decide whether we have jurisdiction to entertain the CHP's appeal. After the jury returned a verdict in Nava's favor and the district court entered the permanent injunction, the parties stipulated to vacate the jury's verdict, the judgment and the injunction. The parties also entered into a Stipulated Compromise and Settlement Agreement in which Nava agreed to dismiss any and all claims, including his claim for injunctive relief. The district court, however, refused to vacate the injunction. The CHP nevertheless agreed to abide by the settlement terms so long as its right to appeal the permanent injunction was preserved. The district court acknowledged on the record that the CHP had not waived its right to appeal the injunction by entering into the settlement agreement.

Nava now contends, however, that the settlement agreement mooted the CHP's appeal of the injunction. Nava asserts that, because his standing to seek injunctive relief was predicated on his claim for damages and the stipulated compromise settled the damages claim, there is no longer a live case or controversy for us to adjudicate.

We have held that a plaintiff's appeal from the entry of a declaratory judgment is rendered moot by settlement of the accompanying damages claims where the plaintiff's standing to seek declaratory relief was predicated on the existence of those claims for damages. Blair v. Shanahan, 38 F.3d 1514, 1518-20 (9th Cir.1994), cert. denied, 514 U.S. 1066, 115 S.Ct. 1698, 131 L.Ed.2d 561 (1995). We reasoned that since the damages claims no longer existed, they could not "presently confer a personal stake in the declaratory judgment." Id. at 1520. Nava posits that Blair precludes us from entertaining the CHP's appeal. We disagree. Here, an injunction rather than a declaratory judgment is at stake. The existence of the injunction, which calls for continuing supervision of the CHP by the district court, presents a live and immediate controversy for which relief can be granted. See Cammermeyer v. Perry, 97 F.3d 1235, 1238-39 (9th Cir.1996) (existence of injunction, unlike a declaratory judgment, presents a live case or controversy on appeal because "[t]he injunction must be obeyed until it is stayed, dissolved, or reversed, even if it is erroneously issued.") (quoting 1 Dan B. Dobbs, Law of Remedies: Damages-Equity-Restitution § 2.9(1), at 223 (2d ed.1993)). Accordingly, we conclude that the CHP's appeal from the district court's entry of the permanent injunction is not moot.

Standing to Seek the Injunction

The CHP asserts that the district court lacked jurisdiction to issue the injunction because Nava failed to establish that he was likely to suffer future injury from the CHP's use of the chokehold. The CHP relies on City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983), a case remarkably similar to the one we now decide. There, plaintiff Lyons was stopped by officers of the Los Angeles Police Department ("LAPD") for a traffic infraction. Lyons alleged that, without provocation or justification, the officers seized him and applied a chokehold which rendered him unconscious and caused him injury. Lyons filed a complaint in federal district court seeking damages, declaratory relief, and an injunction barring LAPD officers from using chokeholds "except in situations where the proposed victim of said [chokehold] reasonably appears to be threatening the immediate use of deadly force." 461 U.S. at 98, 103 S.Ct. at 1663. The district court entered a preliminary injunction enjoining the use of chokeholds "under circumstances which do not threaten death or serious bodily injury," id. at 100, 103 S.Ct. at 1664, and we affirmed. Id.

The Supreme Court reversed, concluding that Lyons had failed to demonstrate a case or controversy that would justify the equitable relief sought. Applying the established rule that " '[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief,' " id. at 102, 103 S.Ct. at 1665 (quoting O'Shea v. Littleton, 414 U.S. 488, 495, 94 S.Ct. 669, 676, 38 L.Ed.2d 674 (1974)), the Court in Lyons reasoned:

Lyons' standing to seek the injunction requested depended on whether he was likely to suffer future injury from the use of the chokeholds by police officers.... That Lyons may have been illegally choked by the police on October 6, 1976, while presumably affording Lyons standing to claim damages against the individual officers and perhaps against the City, does nothing to establish a real and immediate threat that he would again be stopped for a traffic violation, or for any other offense, by an officer or officers who would illegally choke him into unconsciousness without any provocation or resistance on his part.

Id. at 105, 103 S.Ct. at 1667. If we were writing on a slate free of intervening Ninth...