concurring in part and dissenting in part:
I concur in most of Judge Nelson’s opinion, and specifically agree with her that the district court erred by informing the jury that the city would pay any compensatory and punitive damages that might be awarded. However, I would reverse on both liability and damages.
With respect to the first point, I believe that the instruction given on the issue of the plaintiffs consent to arrest was erroneous for at least two reasons: First, and as already noted by Judge Nelson, it placed the burden of proof on the “government,” which was not even a party to this case; and second, it required the defendant to prove that the plaintiff consented to her own arrest.
The defendant denied that there ever was an arrest, contending that the plaintiff had *1526consented to accompany him and to remain in his company. Such consent would have been a defense to the plaintiffs claim. Moreover, a lawful arrest, defined as the “taking [of] a person into custody ... in the manner authorized by law”, Cal.Pen.Code § 834 (Deering 1993), is not rendered unlawful merely because the arrestee fails to consent to being taken into custody.1 To require the defendant to prove that the plaintiff consented to something the defendant said was never done, viz., arresting the plaintiff, strikes me as hopeless confusion.
I also take little comfort in the majority’s assurance that the jury made an implicit finding of “extraordinary misconduct” by awarding punitive damages in a trial in which the instructions on compensatory damages and the comments on punitive damages were so flawed as to require reversal. Put another way, in order for the district court to retry the issue of damages on remand it will be necessary for it to go back through all of the evidence heard in the first trial. A retrial on damages alone will not be an economy.
The erroneous instruction on compensatory damages, and the plaintiffs comments on punitive damage indemnification, when combined with the instruction giving the “government” the burden of proving consent to something the defendant contends did not even happen, require reversal and remand for a new trial, because none of those errors were harmless.
. I.e., where as here the arrest takes place outside of the arrestee’s home. See People v. Wilkins, 14 Cal.App.4th 761, 17 Cal.Rptr.2d 743 (1993); People v. Trudell, 173 Cal.App.3d 1221, 219 Cal.Rptr. 679 (1985); People v. Villa, 125 Cal.App.3d 872, 178 Cal.Rptr. 398 (1981).