FILED
NOT FOR PUBLICATION
DEC 12 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DORIS RAY KNOX; et al., No. 16-16691
Plaintiffs-Appellants, D.C. No. 1:14-cv-00799-EPG
v.
MEMORANDUM*
CITY OF FRESNO, a municipal
corporation; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Erica P. Grosjean, Magistrate Judge, Presiding
Submitted December 8, 2017**
San Francisco, California
Before: GRABER and N.R. SMITH, Circuit Judges, and SIMON,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Michael H. Simon, United States District Judge for the
District of Oregon, sitting by designation.
We affirm the district court’s denial of Plaintiffs’ request to amend the jury
instructions. Federal Rule of Civil Procedure 51(a)(1) provides that, “[a]t the close
of the evidence or at any earlier reasonable time that the court orders, a party may
file and furnish to every other party written requests for the jury instructions it
wants the court to give.” Rule 51(a)(2) then provides two exceptions: “[a]fter the
close of the evidence, a party may: (A) file requests for instructions on issues that
could not reasonably have been anticipated by an earlier time that the court set for
requests; and (B) with the court’s permission, file untimely requests for
instructions on any issue.”
Here, the district court provided an early opportunity under Rule 51(a)(1) for
the parties to submit proposed jury instructions, and Plaintiffs submitted proposed
jury instructions at that time. Then, just prior to closing arguments, Plaintiffs
submitted a request to amend a jury instruction that they previously had proposed.
However, neither of the two exceptions in Rule 51(a)(2) applies to Plaintiffs’
request. Plaintiffs were well aware of the issues regarding the allegedly defective
jury instruction, and the district court did not give Plaintiffs permission to file an
untimely request for instructions. Thus, we review for plain error. See C.B. v. City
of Sonora, 769 F.3d 1005, 1018 (9th Cir. 2014) (en banc); Fed. R. Civ. P. 51(d).
2
The challenged jury instruction survives plain error review. “[W]hen
reviewing civil jury instructions for plain error, we must consider, as we do in the
criminal context, whether (1) there was an error; (2) the error was obvious; and (3)
the error affected substantial rights.” C.B., 769 F.3d at 1018. The district court did
not commit plain error because there was no error; the jury instruction does not
misstate the law.1 Plaintiffs brought an excessive force claim under 42 U.S.C. §
1983. The district court instructed the jury that, in determining whether the use of
force was reasonable, the jury must “consider all of the circumstances known to
[the officers] on the scene.” Plaintiffs argue that this passage misstates the law,
because the jury must “consider all of the circumstances that [the officers] knew or
should have known on the scene.” (Emphasis added).
Contrary to Plaintiffs’ argument, the Supreme Court recently reiterated that
“[e]xcessive force claims . . . are evaluated for objective reasonableness based
upon the information the officers had when the conduct occurred.” County of Los
Angeles v. Mendez, 137 S. Ct. 1539, 1546-47 (2017) (ellipsis in original) (emphasis
added) (quoting Saucier v. Katz, 533 U.S. 194, 207 (2001)). The reasonableness of
the officer’s prior actions and decisions are not to be taken into account. See id. at
1
Because we conclude that the jury instruction does not misstate the law, the
result would be the same under de novo review.
3
1547. (striking down the Ninth Circuit’s “provocation rule” and holding that an
excessive force claim does not arise when “an officer use[s] reasonable force after
committing a distinct Fourth Amendment violation such as an unreasonable
entry”). Rather, “an officer’s use of force must be objectively reasonable based on
his contemporaneous knowledge of the facts.” Deorle v. Rutherford, 272 F.3d
1272, 1281 (9th Cir. 2001) (emphasis added). Consequently, “[a plaintiff] cannot
‘establish a Fourth Amendment violation based merely on bad tactics that result in
a deadly confrontation that could have been avoided.’” City & County of San
Francisco v. Sheehan, 135 S. Ct. 1765, 1777 (2015) (quoting Billington v. Smith,
292 F.3d 1177, 1190 (9th Cir. 2002)). Thus, the district court did not commit plain
error.
AFFIRMED.
4