Reed v. Hoy, 87-4324

Decision Date18 July 1990
Docket NumberNo. 87-4324,87-4324
Citation891 F.2d 1421
PartiesRobert REED, Plaintiff-Appellant, v. Daniel HOY; Douglas County; Douglas County Sheriff's Office, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Dwayne R. Murray, Bischoff & Strooband, P.C., Eugene, Or., for plaintiff-appellant.

Robert E. Franz, Jr., Eugene, Or., for defendants-appellees.

Appeal from the United States District Court for the District of Oregon.

Before BROWNING, WALLACE and FLETCHER, Circuit Judges.

FLETCHER, Circuit Judge:

Plaintiff Robert Reed brought an action against Deputy Daniel Hoy and Douglas County, alleging that his constitutional rights were violated by Hoy's use of excessive force. After a full trial, the jury found for the defendants. Reed appeals, alleging various errors in jury instructions and admission of evidence. We reverse and remand.

I. FACTS AND PROCEEDINGS BELOW

On August 18, 1984, Deputy Daniel Hoy was dispatched to the residence of plaintiff Robert Reed to investigate a reported domestic disturbance. When Hoy arrived at Reed's house, Reed was crouched outside the house, with his back to Hoy. Hoy greeted Reed, and informed Reed that he was investigating a possible crime. Hoy asked if he could speak to Mrs. Reed. Reed angrily replied that his wife did not want to speak to Hoy and told Hoy "to get the hell off [his] property." Hoy then stated that he was investigating a possible family disturbance and indicated that he would leave as soon as he spoke to Mrs. Reed.

After a further brief, verbal exchange, Reed picked up a 36-inch bamboo stick used to stake flowers, and again demanded that Hoy leave the premises. In response, Hoy drew his nightstick. Hoy again requested to see Mrs. Reed. Reed walked to the porch, put down the bamboo stick, and picked up a splitting maul. He advanced toward Hoy, again demanding that Hoy leave his property. Reed testified that he was very angry and that his purpose was to scare Hoy. Hoy retreated, walking backwards. He told Reed to put down the maul, but Reed refused.

Hoy continued walking backwards, and Reed continued to advance, closing the distance between the two. Hoy again asked Reed to put down the maul. When Reed refused and continued to advance toward him, Hoy drew his service revolver and pointed it at Reed, again requesting that Reed put down the maul. Hoy testified that Reed continued to advance, grabbing the maul with both hands, and raising it in a threatening manner. Hoy then shot Reed in the chest. Reed filed this action under 42 U.S.C. § 1983, alleging that Hoy used excessive force, violating Reed's constitutional rights. Reed also alleged that the County was liable for failure to train Hoy adequately in the use of force. The jury ruled in favor of the defendants. Reed appeals, alleging several errors in the conduct of the trial. We have jurisdiction under 28 U.S.C. § 1291.

II. STANDARD OF REVIEW

We review jury instructions to determine whether, taken as a whole, they mislead the jury or state the law incorrectly to the prejudice of the objecting party. Kisor v. Johns-Manville Corp., 783 F.2d 1337, 1340 (9th Cir.1986). So long as they do not, we review the formulation of the instructions and the choice of language for abuse of discretion. United States v. Echeverry, 759 F.2d 1451, 1455 (9th Cir.1985).

III. DISCUSSION
A. The Rinker Instruction

Reed argues that the district court incorrectly instructed the jury on the level of culpability necessary to find that Hoy violated Reed's constitutional rights. The instruction to which Reed objects reads as follows:

Now, in order for the Plaintiff to prevail in this matter on his due process claim against the Defendants the Plaintiff must prove by a preponderance of the evidence that the shooting of Plaintiff by ... Deputy Hoy was intentional, unjustified, unprovoked, and brutal.

In other words you are to decide whether Deputy Hoy shot the Plaintiff in a good faith effort to protect himself or did so maliciously and for the very purpose of injuring the Plaintiff.

Reporter's Transcript (RT) at 417 (emphasis added). 1 The instruction given by the district court was based on language in Rinker v. County of Napa, 820 F.2d 295, opinion withdrawn, substituted opinion on reh'g, 831 F.2d 829, 831-32 (9th Cir.1987).

In Rinker, the plaintiff sued a police officer who had shot him in the face during a raid of his apartment. Viewing Rinker's action as one invoking substantive due process, we held that Rinker could establish a substantive due process violation only if the force applied to the defendant was applied "maliciously and sadistically for the very purpose of causing harm." 831 F.2d at 831-32 (quoting Johnson v. Glick, 481 F.2d 1028 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973)). Unfortunately, the Rinker instruction given by the district court is inconsistent with the standards recently enunciated by the Supreme Court for evaluating the constitutionality of a law enforcement official's use of force to subdue a citizen. See Graham v. Connor, --- U.S. ----, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).

In Graham, a police officer stopped plaintiff Graham because he suspected that Graham may have robbed a convenience store. However, Graham had merely hurriedly entered and left the store in an effort to obtain fruit juice in order to alleviate a diabetic condition. The officer instructed Graham to wait while he checked to see if the store had been robbed. Graham, suffering an insulin reaction, began behaving strangely, then passed out. While he was unconscious, backup officers cuffed his hands tightly behind his back. When he regained consciousness and attempted to explain his condition to the officers and direct their attention to a diabetic decal that he carried in his wallet, one of them told him to shut up, and slammed his head against a car. Four officers then shoved him head first into a police car. When a friend of Graham's brought fruit juice to the car, they refused to let him drink it. Eventually, the officers learned that there had been no robbery and released Graham. However, during his brief encounter with the police, Graham suffered a broken foot, cuts on his wrists, a head injury, and a shoulder injury. He brought an action under 42 U.S.C. § 1983, alleging that the officers' use of force was in violation of " 'rights secured to him under the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983.' " Id. 109 S.Ct. at 1868 (quoting Graham's complaint, p 10).

Finding, inter alia, that the defendants applied the force in good faith and not "maliciously or sadistically for the very purpose of causing harm," the district court directed a verdict for the defendants; and a divided panel of the Fourth Circuit affirmed. Graham v. City of Charlotte, 827 F.2d 945 (4th Cir.1987). The Supreme Court reversed.

The Court first noted that a majority of the lower federal courts apply the Johnson v. Glick test to all excessive force claims against law enforcement officials. Graham, 109 S.Ct. at 1870. The Court condemned this practice, pointing out that section 1983 analysis must begin by analyzing the specific constitutional right allegedly infringed by the challenged application of force. Id. The Court then concluded that the fourth amendment is the specific constitutional provision governing the right of free citizens to be free from law enforcement officials' use of excessive force in the context of an arrest or investigatory stop. Id. at 1871 ("all claims that law enforcement officers have used excessive force--deadly or not--in the course of an arrest, investigatory stop, or other 'seizure' of a free citizen should be analyzed under the Fourth Amendment and its 'reasonableness' standard, rather than under a 'substantive due process' approach"). The Court pointed out that the Johnson v. Glick analysis, which turns in part on the subjective intent of the officers, is inappropriate in the fourth amendment context. Id. at 1872. As the Court noted, "[t]he Fourth Amendment inquiry is one of 'objective reasonableness' under the circumstances, and subjective concepts like 'malice' and 'sadism' have no proper place in that inquiry." Id. at 1873.

If the fourth amendment analysis of Graham applies to this case, the Rinker instruction was inappropriate. In order to apply Graham to this case, we must determine that (1) Graham should be applied retroactively, and (2) Hoy's allegedly excessive use of force occurred in the context of a "seizure," triggering the protection of the fourth amendment.

1. Retroactive Application of Graham

Our circuit recognizes that ordinarily a decision reformulating federal civil law will be applied retroactively. Austin v. City of Bisbee, 855 F.2d 1429, 1432 (9th Cir.1988). In certain cases, however, retroactive application of the new case law will produce inequitable results; and the new rules will be applied prospectively only. In determining whether a decision should be applied prospectively, a court must consider three factors as set forth in Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355-56, 30 L.Ed.2d 296 (1971): whether the decision

(1) establish[es] a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed (2) state[s] a rule whose retrospective operation will retard more than further its operation, considering the rule's prior history and its purpose and effect;

(3) [is] a decision whose retroactive application could produce substantial inequitable results, and for which a holding of nonretroactivity would avoid injustice or hardship.

Austin, 855 F.2d at 1432-33 (citing Chevron, 404 U.S. at 106-07, 92 S.Ct. at 355-56).

Graham clearly overrules past Ninth Circuit...

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7 cases
  • Hammer v. Gross
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • May 13, 1991
    ...Id. at 1872. We have held that the Graham analysis is to be applied retroactively. Reed v. Hoy, 909 F.2d 324, 327-28 (modifying 891 F.2d 1421 (9th Cir.1989)). III We address, then, the question whether a rational jury could find that the actions of the defendants in employing the force that......
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    ...law enforcement official that implicates the victim's fourth amendment interest to be free from unreasonable seizures." Reed v. Hoy (9th Cir.1989), 891 F.2d 1421, 1426.5 This inference is sufficient to resist summary judgment; however, it would have been stronger if the Slays had timely fil......
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