FILED
NOT FOR PUBLICATION NOV 16 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KIMBERLY LUONG; et al., No. 13-16305
Plaintiffs - Appellants, D.C. No. 3:11-cv-05661-MEJ
v.
MEMORANDUM*
CITY AND COUNTY OF SAN
FRANCISCO POLICE DEPARTMENT;
et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Maria-Elena James, Magistrate Judge, Presiding**
Submitted October 20, 2015***
San Francisco, California
Before: WALLACE, SILVERMAN, and CHRISTEN, Circuit Judges.
Kimberly Luong and Vicky Luong appeal from the jury verdict in their 42
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
U.S.C. § 1983 action alleging excessive force claims against various officers of the
San Francisco Police Department. We have jurisdiction under 28 U.S.C.
§ 1291. We affirm.
The district court properly granted summary judgment on Plaintiff Kimberly
Luong’s unlawful arrest and Plaintiff Vicky and Kimberly Luong’s seizure claims
because Plaintiffs failed to a raise genuine dispute of material fact as to whether
defendants had probable cause to seize the video camera, given that the officers
were working as a team and collectively possessed knowledge that the camera was
potential evidence, and whether defendants had probable cause to arrest Plaintiffs
under California Penal Code § 148(a)(1) for obstructing defendants in the
performance of their duties at the crime scene. See Heinemann v. Satterberg, 731
F.3d 914, 916 (9th Cir. 2013) (setting forth standard of review); see also Riley v.
California, 134 S. Ct. 2473, 2494 (2014) (explaining a “well-recognized
exception” to this warrant requirement of the Fourth Amendment is that the
“exigencies of the situation make the needs of law enforcement so compelling that
[a] warrantless . . . [seizure] is objectively reasonable under the Fourth
Amendment”); United States v. Ramirez, 473 F.3d 1026, 1032-33 (9th Cir. 2007)
(explaining this court has applied the collective knowledge doctrine “regardless of
whether [any] information [giving rise to probable cause] was actually
2 13-16305
communicated to” the officer performing the arrest; suggesting, but not requiring,
communication among officers as a way to distinguish which officers are part of an
investigation, and which are not); see also Cal. Pen. Code § 148(a)(1) (making a
violation every person who “willfully resists, delays, or obstructs any . . . peace
officer . . . in the discharge or attempt to discharge any duty of his or her office or
employment”).
The district court did not abuse its discretion in denying Plaintiffs’ oral
request for leave to amend their complaint to add a First Amendment retaliation
claim because Plaintiffs unduly delayed in seeking amendment so close to the trial
date and Defendants would have been prejudiced had leave to amend been granted.
See Hall v. City of Los Angeles, 697 F.3d 1059, 1079 (9th Cir. 2012) (setting forth
standard of review); see also Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir.
2004) (explaining that a district court takes into account five factors in determining
whether to grant leave to amend: “bad faith, undue delay, prejudice to the opposing
party, futility of amendment, and whether the plaintiff has previously amended the
complaint”).
Despite what Plaintiffs contend, the district court did not abuse its discretion
in its various in limine rulings. See United States v. Dorsey, 677 F.3d 944, 951
(9th Cir. 2012) (setting forth standard of review for in limine rulings). Evidence of
3 13-16305
the stabbing was relevant to the jury’s understanding of the significance of the
camera as evidence, and was not unduly prejudicial given that the video camera
itself had footage of evidence related to the stabbing, e.g. a jacket with blood
soaking in the bathtub. See Fed. R. Evid. 401, 402, 403. Additionally, the district
court properly excluded evidence of other citizen complaints, investigation, and
findings as impermissible character evidence as Plaintiffs failed to proffer a proper
grounds for its admissibility. See Fed. R. Evid. 404(a). The district court properly
excluded the police report as inadmissible hearsay, see Fed. R. Evid. 801, and the
voluminous police training materials as needlessly cumulative since Plaintiffs had
already read substantial portions of the materials into the record, see Fed. R. Evid.
403. Lastly, the district court properly excluded testimony about the use of police
force logs since Plaintiffs failed to demonstrate that these force logs were
applicable in this case and thus the force logs were irrelevant. See Fed. R. Evid.
402.
The district court did not abuse its discretion in its instruction to the jury,
and its rejection of Plaintiffs’ numerous proposed jury instructions. See United
States v. Hofus, 598 F.3d 1171, 1174 (9th Cir. 2010) (setting forth standard of
review). The district court properly instructed the jury that the seizure of the
camera was not an issue at trial and that the officers had authority to seize the
4 13-16305
camera. Without the instruction, the jury would have been confused or misled into
believing that these issues were not resolved. The district court also properly
instructed the jury to consider Plaintiffs’ resistance to the police’s attempts to seize
evidence because the Model Instructions only mentioned the Plaintiffs’ resistance
to arrest.
To the extent that Plaintiffs sufficiently raised this issue on appeal, the
district court did not err in granting Defendants’ motion for judgment as a matter
of law at the close of evidence because Plaintiffs either failed to show personal
participation, or actionable conduct on the part of Officers Ciudad, Moriyama and
Chea as to certain excessive force claims brought by Plaintiffs. See Torres v. City
of Los Angeles, 548 F.3d 1197, 1205-06 (9th Cir. 2008) (setting forth standard of
review); see also Lacey v. Maricopa County, 693 F.3d 896, 915-16 (9th Cir. 2012)
(en banc) (liability for violation of a constitutional right requires defendants’
personal participation in the violation).
The district court did not abuse its discretion in denying Plaintiffs’ motion
for new trial because the jury verdict was supported by substantial evidence. See
Kode v. Carlson, 596 F.3d 608, 611 (9th Cir. 2010) (setting forth standard of
review); Mueller v. Auker, 700 F.3d 1180, 1193-94 (9th Cir. 2012) (“The district
court’s denial of a motion for a new trial is reversible only if the record contains no
5 13-16305
evidence in support of the verdict or if the district court made a mistake of law.”)
(citation and internal quotation marks omitted)). Specifically, the undisputed
evidence shows that Vicky and Kimberly refused to hand over the camera to
defendants, when asked, and prevented the officers from obtaining the camera,
which the defendants had a lawful right to seize. The evidence further shows that
Kimberly and Vicky were resisting arrest, prompting defendants to use force to
subdue them. There was no evidence presented that the officers used more force
than what was needed. Nor did the evidence support Kimberly’s or Vicky’s
account of the force used to arrest them. Plaintiffs’ arguments to the contrary rest
mainly on a credibility determination, which is not reviewable on appeal.
The district court did not abuse its discretion in awarding costs against
Plaintiffs because the cost award was modest, Plaintiffs’ case did not present issues
of substantial public importance, and Plaintiffs did not demonstrate that they could
not otherwise pay the costs if subjected to a payment plan. See Martin v. Cal.
Dep’t. of Veteran Affairs, 560 F.3d 1042, 1053 (9th Cir. 2009) (setting forth
standard of review); cf. Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236,
1248-49 (9th Cir. 2014) (no abuse of discretion in denying relatively modest cost
award when, among other things, plaintiff had limited financial resources, the case
present issues of substantial importance regarding FMLA notice, and chilling
6 13-16305
effect on future FMLA actions).
Since Plaintiffs did not demonstrate any constitutional violations, Plaintiffs’
arguments regarding the dismissal of its state law claim under Cal. Civ. Code
§ 52.1 are moot.
Since Plaintiffs did not raise any arguments concerning the false arrest of
Vicky in their Opening Brief, we deem that issue waived on appeal. See Cruz v.
Int’l Collection Corp., 673 F.3d 991, 998 (9th Cir.2012) (“We review only issues
which are argued specifically and distinctly in a party's opening brief.” (citation
and internal quotation marks omitted)).
AFFIRMED.
7 13-16305
FILED
NOV 16 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
Kimberly Luong et al. v. City & County of San Francisco et al., 13-16305
CHRISTEN, Circuit Judge, dissenting:
I respectfully dissent from the portion of the court’s disposition affirming
summary judgment as to the Luongs’ unlawful arrest and seizure claims. Our
circuit has only applied the collective knowledge doctrine where there has been
some communication between officers working together on an investigation.
United States v. Ramirez, 473 F.3d 1026, 1032 (9th Cir. 2007) (“[W]e have been
willing to aggregate the facts known to each of the officers involved at least when
there has been communication among agents.” (internal quotation marks,
alterations, and citations omitted)). Here the district court correctly identified that
there was a triable issue of fact concerning whether the officers who saw the
camera being used inside the home communicated with the officers who seized the
camera and arrested the Luongs. The district court was under the impression that
this issue of fact did not prevent the entry of summary judgment because it read
Ramirez to permit application of the collective knowledge doctrine whether there
had been communication or not. Because that ruling represents an expansion of
the doctrine that our court has never endorsed, I would reverse this portion of the
district court’s order and remand for further proceedings.