NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 29 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
THE ESTATE OF CECIL ELKINS. JR.; No. 22-16027
CREASHA ELKINS, individually, as
successor in interest to Cecil Elkins, Jr. D.C. No.
guardian ad litem Valiecia Perez guardian ad 1:13-cv-01483-AWI-SAB
litem Dylan Elkins; DEVIN ELKINS,
individually and as successors in interest to
Cecil Elkins, Jr.; CECIL ELKINS; TINA MEMORANDUM*
TERREL; VALIECIA PEREZ; DYLAN
ELKINS,
Plaintiffs-Appellants,
v.
HIPOLITO PELAYO,
Defendant-Appellee,
and
CALIFORNIA HIGHWAY PATROL;
COUNTY OF TULARE; TULARE
COUNTY SHERIFF'S DEPARTMENT;
TULARE COUNTY REGIONAL GANG
ENFORCEMENT TEAM; CITY OF
PIXLEY,
Defendants.
Appeal from the United States District Court
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Argued and Submitted October 19, 2023
San Francisco, California
Before: BEA, CHRISTEN, and JOHNSTONE, Circuit Judges.
Dissent by Judge BEA.
Cecil Elkins Jr. (“Mr. Elkins”) was shot and killed by Officer Hipolito
Pelayo (“Officer Pelayo”) while evading arrest. Mr. Elkins’s estate and family
(“the Elkinses”) filed suit against Officer Pelayo, claiming that his use of deadly
force violated the Fourth Amendment, the Fourteenth Amendment, and California
state law. After a three-week trial, a jury unanimously returned a verdict for
Officer Pelayo. The Elkinses appeal this verdict, arguing that the district court
made several errors in its handling of the trial. We have jurisdiction under 8 U.S.C.
§ 1291, and we affirm.
1. The Elkinses argue that the district court violated our mandate in Estate
of Elkins v. Pelayo, 737 F. App’x 830 (9th Cir. 2018) (“Elkins I”)1 by precluding
them from presenting their negligent tactics claim at trial. We disagree. “We
review de novo . . . the district court’s compliance with our mandate.” Hall v. City
of Los Angeles, 697 F.3d 1059, 1066 (9th Cir. 2012) (citing Snow-Erlin v. United
States, 470 F.3d 804, 807 (9th Cir. 2006)). While a lower court cannot “review [the
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We deny Officer Pelayo’s request for judicial notice as unnecessary.
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mandate], even for apparent error, upon any matter decided on appeal, . . . [t]he
opinion delivered by this court at the time of rendering its decree may be consulted
to ascertain what was intended by its mandate.” In re Sanford Fork & Tool Co.,
160 U.S. 247, 255–56 (1895) (citations omitted).
The Elkinses based their negligent tactics claim against Officer Pelayo on
three pre-shooting acts: (1) deciding to arrest Mr. Elkins, (2) failing to use non-
lethal force earlier in his attempt to stop Mr. Elkins, and (3) continuing pursuit as
other officers set a perimeter. In Elkins I, we remanded “[b]ecause we conclude[d]
that a reasonable jury could find it more likely than not that Elkins was not
reaching for his waistband just before he was shot.” 737 F. App’x at 831. The
Elkinses’ excessive force claims, arising from Officer Pelayo’s actions at the
moment deadly force was used, are analytically distinct from their state negligence
claims arising from Officer Pelayo’s pre-shooting tactics in this case.
The Elkins I memorandum stated that “Plaintiffs’ state law claims are
analyzed under the same standard of objective reasonableness used in Fourth
Amendment claims.” Id. at 833. State law claims subject to that standard include
assault, battery, and violations of California Civil Code section 52.1.2 California
courts analyze negligence claims, such as the Elkinses’ negligent tactics claim,
2
See, e.g., Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 922 (9th
Cir. 2001) (assault and battery); Cameron v. Craig, 713 F.3d 1012, 1022 (9th Cir.
2013) (Cal. Civ. Code § 52.1).
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under a different standard. Hayes v. Cnty. of San Diego, 305 P.3d 252, 263 (Cal.
2013) (“[S]tate negligence law . . . is broader than federal Fourth Amendment law,
which tends to focus more narrowly on the moment when deadly force is used.”
(citation omitted)). The genuine disputes of fact underlying our remand on Fourth
Amendment grounds did not relate to, or undermine, the district court’s factual
findings concerning the pre-shooting negligent tactics claim the Elkinses advanced.
See Elkins I, 737 F. App’x at 831–33.
Accordingly, the district court did not err by dismissing the Elkinses’
negligent tactics claim. Prior to the first appeal, the parties fully briefed this cause
of action, and the district court granted Officer Pelayo’s motion for summary
judgment on two grounds: (1) the operative complaint failed to plead a plausible
claim for negligent tactics, and (2) the Elkinses’ unsupported and speculative
arguments for pre-shooting tactical negligence failed to establish a genuine dispute
of material fact.
On remand, the district court considered the scope of Elkins I at length and
concluded that our memorandum’s Fourth Amendment rationale did not preempt
further negligent tactics analysis. After considering the operative complaint and the
evidence on summary judgment anew, the district court again determined that the
Elkinses’ negligent tactics claim was inadequately pleaded in the operative
complaint and insufficiently supported on summary judgment. Because our
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mandate did not foreclose further consideration of the negligent tactics claim, the
district court appropriately precluded the Elkinses from pursuing it at trial.3 See
United States v. Kellington, 217 F.3d 1084, 1092–95 (9th Cir. 2000). The district
court also did not abuse its discretion by later excluding certain opinions offered by
the Elkinses’ expert witness that concerned the negligent tactics claim. See Fed. R.
Evid. 401.
2. The Elkinses next challenge three evidentiary rulings as unfairly
prejudicial. We review the district court’s admission of evidence for abuse of
discretion, Boyd v. City & Cnty. of San Francisco, 576 F.3d 938, 943 (9th Cir.
2009), and conclude that the district court acted within its discretion in each
instance.
First, the district court did not err by admitting testimony about the nature of
Mr. and Mrs. Elkins’s marriage during the liability phase of trial. This testimony
related to the first element of Mrs. Elkins’s Fourteenth Amendment claim—
whether she had a protectable interest in her relationship with Mr. Elkins.4 See
3
The Elkinses forfeited any challenge to the district court’s denial of leave to
amend because they raised the issue for the first time in their reply brief. See Smith
v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
4
This Court has not established whether spouses may bring a loss of
companionship claim under the Fourteenth Amendment. Peck v. Montoya, 51 F.4th
877, 893 (9th Cir. 2022). Because the parties do not raise this on appeal, we
express no opinion on the issue. See Miller v. Fairchild Indus., Inc., 797 F.2d 727,
738 (9th Cir. 1986).
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Lehr v. Robertson, 463 U.S. 248, 256–58 (1983). Because this was a merits issue,
the district court appropriately allowed this evidence during the liability phase of
trial rather than reserving it for the damages phase. In addition, because the district
court only admitted the testimony on the basis that its probative value outweighed
any potentially prejudicial effect, the district court did not abuse its discretion in
admitting this evidence under Federal Rule of Evidence 403. See Boyd, 576 F.3d at
948.
Second, the district court did not abuse its discretion by admitting Mrs.
Elkins’s testimony about conversations she had with her husband and the police
shortly before the shooting because they were probative of whether Mr. Elkins had
a reason to evade arrest when he encountered Officer Pelayo. See Graham v.
Connor, 490 U.S. 386, 396 (1989). As above, the district court also adequately
weighed the probative value of this evidence against potential prejudice to the
Elkinses before allowing its admission. See Boyd, 576 F.3d at 948.
Third, the district court acted within its discretion in concluding that Officer
Pelayo’s prior use of force against another suspect did not cast light on his motive,
intent, or credibility in this case. See Fed. R. Evid. 404(b). The district court also
did not abuse its discretion in excluding evidence of the prior incident because its
admission created a danger of unfair prejudice to Officer Pelayo, issue confusion,
and a “mini-trial,” which outweighed any probative value. See Fed. R. Evid. 403.
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3. The Elkinses argue that the district court committed reversible error by
including an interrogatory on the verdict form, asking: “Immediately before
[Officer] Pelayo fired his gun, did [Mr. Elkins] reach for his waistband?” The jury
did not reach the interrogatory at issue because it did not find that Officer Pelayo
used excessive force. We review de novo whether jury instructions accurately state
the law, Hunter v. Cnty. of Sacramento, 652 F.3d 1225, 1232 (9th Cir. 2011), and
for abuse of discretion a court’s decision to submit special interrogatories to the
jury, Ruvalcaba v. City of Los Angeles, 167 F.3d 514, 521 (9th Cir. 1999).
The district court correctly instructed jury members to review the totality of
circumstances at the time of Officer Pelayo’s use of force, see Graham, 490 U.S. at
396, and included the interrogatory at issue to aid its qualified immunity
determination. “[W]hen there are disputed factual issues that are necessary to a
qualified immunity decision, [they] must first be determined by the jury before the
court can rule on qualified immunity.” Morales v. Fry, 873 F.3d 817, 824 (9th Cir.
2017) (quoting commentary to Ninth Circuit Model Civil Jury Instruction § 9.34
(2017)). In Elkins I, we concluded that, “because the record contains reasons to
doubt whether Officer Pelayo actually saw Elkins reach for his waistband, the
decision . . . should be left to the jury.” 737 F. App’x at 833. Because this factual
issue remained through trial and would inform any qualified immunity
determination after trial, the district court acted within its discretion when it
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decided to submit the question to the jury. See Lam v. City of San Jose, 869 F.3d
1077, 1086 (9th Cir. 2017).
AFFIRMED.
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