Saman v. Robbins
| Decision Date | 23 March 1999 |
| Docket Number | 97-55724 and 97-55789,Nos. 96-55672,97-56683,97-56684,s. 96-55672 |
| Citation | 173 F.3d 1150 |
| Parties | 99 Cal. Daily Op. Serv. 2073, 1999 Daily Journal D.A.R. 2685 Yousef SAMAN; Mohammed Alfaorr; Estate of Butres Samaan; Majodoleen Samaan; Maher Samaan; Mageda Samaan; Magid Samaan; Roufai Samaan; Josefine Saman; Saman Saman; Martes Saman, Plaintiffs-Appellees, v. Daniel ROBBINS; Shauna Clark; City of San Bernardino, Defendants, and Michael Blechinger; Mitchal Kimball, Defendants-Appellants. Yousef Saman; Estate of Butres Samaan; Majodoleen Samaan; Maher Samaan; Mageda Samaan; Magid Samaan; Roufai Samaan; Josefine Saman; Saman Saman; Martes Samaan, Plaintiffs, and Mohammed Alfaorr, Plaintiff-Appellee-Cross-Appellant, v. Daniel Robbins; City of San Bernardino; Norine Miller; Valeria Popeludlam; Mitchal Kimball; Thomas Minor; Michael Maudsley; Ralph Hernandez; Jack Reilly; Esther Estrada; William Holcomb; Shauna Clark, Defendants-Appellants-Cross-Appellees. Yousef Saman; Mohammed Alfaorr; Estate of Butres Samaan; Majodoleen Samaan; Maher Samaan; Mageda Samaan; Magid Samaan; Roufai Samaan; Josefine Saman; Saman Saman; Martes Samaan, Plaintiffs-Appellees, v. Daniel Robbins; Shauna Clark; William Holcomb; Esther Estrada; Jack Reilly; Ralph Hernandez, et al., Defendants, and Mitchal Kimball; City of San Bernardino; Defendants-Appellants. Yousef Saman; Mohammed Alfaorr; Estate of Butres Samaan; Majodoleen Samaan; Maher Samaan; Mageda Samaan; Magid Samaan; Roufai Samaan; Josefine Saman; Saman Saman; Martes Samaan, Plaintiffs-Appellants, v. Daniel Robbins; Dale Blackwell; Mitchal Kimball, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Joseph Arias, Dennis J. Mahoney and Christopher D. Lockwood, Lewis, D'Amato, Brisbois & Bisgaard, San Bernardino, California, for the defendants-appellants-cross appellees.
Marion R. Yagman and Stephen Yagman, Yagman & Yagman, Venice, California, for the plaintiffs-appellees-cross-appellants.
Appeals from the United States District Court for the Central District of California; Richard A. Paez, District Judge, Presiding. D.C. No. CV-93-00448-RAP.
Before: LAY, * SCHROEDER and HALL, Circuit Judges.
This litigation arose from the unfortunate fatal shooting of a San Bernardino shopkeeper, Butres Samaan, by a police officer responding to a burglar alarm, and the events immediately following the shooting. Butres Samaan's survivors and estate, Yousef Saman, Mohammed Alfaorr, and Roufai Samaan, 1 filed civil rights claims against the police officer who fired the fatal shot, several police officers involved in the subsequent investigation of the shooting, various city officials, the City and County of San Bernardino and a deputy district attorney. The court granted several of the defendants' motions for summary judgment and for judgment as a matter of law until only excessive force claims remained against four of the defendants. The jury was unable to reach a unanimous verdict as to the excessive force claims against officers Michael Blechinger and Mitchal Kimball and those claims were eventually retried to a second jury.
The second jury returned a special verdict in favor of Officer Blechinger and the court entered judgment as a matter of law in his favor. This time the jury returned a verdict against Officer Kimball in the amount of $30,000 compensatory damages and $4,000 punitive damages on Mohammed Alfaorr's state law battery claim and his federal claim under 42 U.S.C. § 1983 for using excessive force in violation of his Fourth Amendment rights. The district court denied Kimball's motion for judgment as a matter of law on the merits and on the basis of qualified immunity. The district court also dismissed the remaining claims against the City of San Bernardino and several city employees in their official capacities ("Monell claims") on summary judgment.
Several of the defendants who were dismissed before trial made motions for attorney fees pursuant to 42 U.S.C. § 1988. Mohammed Alfaorr, the only prevailing plaintiff, also made a post-judgment motion for attorney fees. The district court denied the defendants' motions but awarded Alfaorr attorney fees. Alfaorr now cross-appeals because the district court reduced the amount of his attorney fees award.
Kimball appeals the judgment against him; the plaintiffs cross-appeal the judgment in favor of Blechinger and the district court's dismissal of their Monell claims. The defendants who were dismissed before trial appeal the district court's denial of attorney fees. We affirm in part and reverse in part.
While on routine patrol on November 6, 1992, San Bernardino Police Officer Michael Blechinger received a radio dispatch that a burglar alarm had been activated at the rear of a store called "Gibson's Healthful Living." The dispatcher gave Blechinger the correct address: 570 South E. Street. Blechinger had been to the store before and drove directly to where he thought the store was located: 391 South E. Street. Unbeknownst to Blechinger, however, Gibson's had moved to another location and he had actually arrived at "Mike's Ice Cream," which occupied the space formerly occupied by Gibson's. Mike's Ice Cream was owned by Yousef Saman. Just before Officer Blechinger arrived at the store, Yousef Saman had counted the cash in the register in preparation for closing. Yousef then gave his brother, Butres Samaan, a gun to protect them from robbers and they proceeded out the rear door of the store to carry the cash to the building where they normally kept it.
Officer Blechinger drove to the rear of the store and looked over a wall that surrounded a small parking lot or courtyard area located behind the store. He noticed a man holding a gun exit the rear door of During the gun battle, Blechinger broadcast on his police radio that he had been shot, that a gun battle continued, and requested backup from other officers. He described the suspects and indicated that there was more than one suspect, at least one of whom was armed. He indicated that at least one suspect had moved through the store toward the front, which opened onto the street. Officer Mitchal Kimball was one of the first officers to arrive at the scene in response to Blechinger's call for help. He arrived at the front of the store. He saw a man who fit the description Blechinger had given of the suspects. Kimball regarded this man, who was later identified as Mohammed Alfaorr, as a suspect and moved toward him with his gun drawn. As set forth later in this opinion, two different accounts were given at trial concerning the altercation that followed.
the store. He saw another man standing in the doorway. Blechinger suspected that a burglary was in progress and ordered the man to drop his gun. The man, who was later identified as Butres Samaan, fired the gun at Blechinger and struck him in the chest. 2 A gun battle ensued and Butres Samaan was fatally wounded
As to Officer Blechinger, the jury entered special verdicts after which the court entered judgment as a matter of law in his favor. Specifically, the jury returned a special verdict finding that (1) Blechinger identified himself as a police officer to Butres Samaan and (2) Blechinger had probable cause to believe that Butres Samaan posed a threat of serious harm to him at the moment Blechinger fired the final shots. The plaintiffs argue on appeal that they are entitled to a new trial because (1) there was insufficient evidence to support the special verdicts, 3 (2) the district court erred by refusing to properly instruct the jury, and (3) the special verdict submitted to the jury was improperly worded.
The plaintiffs' sufficiency of the evidence arguments are waived on appeal by the plaintiffs' failure to make a timely motion under Fed.R.Civ.P. 50(b) or alternatively for a new trial. 4 The Supreme Court has held that Rule 50(b) is to be strictly observed, and that failure to comply with it precludes a later challenge to the sufficiency of the evidence on appeal. See Johnson v. New York, New Haven & Hartford R.R. Co., 344 U.S. 48, 50, 73 S.Ct. 125, 97 L.Ed. 77 (1952); Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 217-18, 67 S.Ct. 752, 91 L.Ed. 849 (1947); Desrosiers v. Flight Int'l of Fla. Inc., 156 F.3d 952, 956-57 (9th Cir.1998).
Blechinger testified that he identified himself four separate times during his We review the district court's order granting Blechinger's motion for judgment as a matter of law de novo. See Acosta v. City and County of San Francisco, 83 F.3d 1143, 1145 (9th Cir.1996). Considering the totality of the circumstances as shown by the undisputed facts and by the facts the jury found in its special verdict, we find the district court's order granting Blechinger's motion for judgment as a matter of law was proper.
gun battle with Butres Samaan, each time progressively louder, and that he even identified himself in Spanish because he initially believed Butres Samaan was Hispanic. Furthermore, there was evidence that Blechinger only returned fire after Butres shot at him, hitting and wounding him in the chest, and that Butres did not retreat until after he fired several shots at Blechinger. This evidence is clearly sufficient to uphold the jury's special verdict findings.
The plaintiffs' complaints about the jury instructions also are unavailing. We review the jury instructions for an abuse of discretion and will reverse only if any error is not harmless. See Gulliford v. Pierce County, 136 F.3d 1345, 1348 (9th Cir.1998), cert. denied, --- U.S. ----, 119 S.Ct. 76, 142 L.Ed.2d 60 (1998). We have reviewed the record and find no error in the district court's instructions to the jury. The court denied plaintiffs' requested jury instruction number 30 concerning the question of whether Blechinger created the danger. During the parties long colloquy with the court at the jury...
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