FILED
NOT FOR PUBLICATION
NOV 17 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONALD GRAVELET-BLONDIN; No. 14-35515
KRISTI GRAVELET-BLONDIN,
D.C. No. 2:09-cv-01487-TSZ
Plaintiffs-Appellants,
v. MEMORANDUM*
JEFF SHELTON; CITY OF
SNOHOMISH,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, District Judge, Presiding
Argued and Submitted October 4, 2016
Seattle, Washington
Before: W. FLETCHER, GOULD, and N.R. SMITH, Circuit Judges.
Donald Gravelet-Blondin (“Blondin”) brought suit against defendants
Sergeant Jeff Shelton and the City of Snohomish (“the City”) claiming, inter alia,
that the defendants violated his Fourth Amendment rights when Sergeant Shelton
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
tased and arrested Blondin during a response to a 911 call of an armed-suicide-in-
progress. The district court granted summary judgment for the defendants on all
claims. Gravelet-Blondin v. Shelton, No. C09–1487RSL, 2012 WL 395428, at *11
(W.D. Wash. Feb. 6, 2012). We reversed, holding that there were issues of fact on
Blondin’s excessive force and unlawful arrest claims, and that qualified immunity
did not apply. Gravelet-Blondin v. Shelton, 728 F.3d 1086, 1100 (9th Cir. 2013).
On remand, the district court held a two-week jury trial. The jury found for
Sergeant Shelton and the City on all claims. Blondin appeals, contending that the
district court erred in denying his renewed motion for judgment as a matter of law
and erred in instructing the jury. We affirm.
First, the outcome of our earlier panel opinion does not control the outcome
here. In our prior opinion reviewing the district court’s grant of summary
judgment for the defendants, we examined the discovery record and construed all
factual disputes in Blondin’s favor. Id. at 1090. Based on that record and the
construction of facts in the light most favorable to the nonmoving party, we held
that a reasonable jury could conclude that Blondin’s tasing and arrest violated the
Fourth Amendment. Id. at 1092. But now, on appeal from a jury verdict in the
defendants’ favor, we review a different record—the facts revealed at trial—and
this time we construe them in favor of the defendants—the opponents to the
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present motion. See Horphag Research Ltd. v. Pellegrini, 337 F.3d 1036, 1040
(9th Cir. 2003). We also ask a different question: whether a reasonable jury could
find that Blondin’s tasing and arrest were not in violation of the Fourth
Amendment. See Johnson v. Paradise Valley Unified Sch. Dist., 251 F.3d 1222,
1227 (9th Cir. 2001). We cannot reverse the jury’s determination if it is supported
by substantial evidence. Id.
Reviewing the record at trial in the light most favorable to the defendants,
we conclude that there was substantial evidence to support a conclusion that
Sergeant Shelton’s use of the taser against Blondin was not excessive. See
generally Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (en banc)
(application of excessive force standard to tasings). The evidence supports that
Blondin himself was a threat. There was testimony that Blondin took on a “bladed
stance,” indicating a readiness to attack, and that he did not step back, put his
hands up, or convey any willingness to comply with Sergeant Shelton’s orders.
Blondin also came right up to the officers, as close as ten feet away, and ignored as
many as twelve commands over a thirty-second period, including warnings that he
would be tased and arrested. This view of the events is a far cry from the thirty-
seven-foot-away fear-frozen Blondin at summary judgment who took steps
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backward, heard only a few commands (two of which were contradictory), and had
no full warning before being tased. See Gravelet-Blondin, 728 F.3d at 1089–90.
Though on the prior appeal we declined to consider the danger of the armed-
suicide-in-progress in assessing the threat posed by Blondin, the evidence at trial
supports a connection between that danger and Blondin’s threat level. Four
different officers testified to the high level of danger created by a suicide-in-
progress when a firearm is unsecured. Here, it was enough for the officers to
“close the air” and to line up behind a ballistic shield for protection. Injecting
himself into this volatile situation, Blondin created a “dangerous distraction.”
Considering the entire context of the events that day, see Mattos, 661 F.3d at 450,
the trial record supports a jury conclusion that Sergeant Shelton’s use of force was
reasonable.
There is also substantial evidence that the officers had probable cause to
arrest Blondin for obstruction. See Lacey v. Maricopa Cty., 693 F.3d 896, 918 (9th
Cir. 2012) (en banc); Wash. Rev. Code § 9A.76.020 (crime of obstructing a law
enforcement officer). Again, there was testimony at trial that Blondin came within
ten feet of the officers and disregarded as many as twelve police commands over a
thirty-second period, all while showing no signs of compliance. This forced
Sergeant Shelton and another officer to leave the suicidal individual, Jack Hawes,
4
and turn their attention to Blondin. That could have had disastrous consequences.
In addition, two other officers had to briefly turn away from Hawes. This evidence
supports a jury finding that there was at least a “fair probability,” Lacey, 693 F.3d
at 918 (quotations omitted), that Blondin had committed obstruction, see State v.
Lalonde, 35 Wash. App. 54, 61–2 (1983).
Finally, the district court did not err in rejecting Blondin’s proposed jury
instructions or in modifying the model instructions.1 For both the excessive force
and unlawful arrest claims, the district court used slightly modified versions of the
model instructions. See Ninth Circuit Manuel of Model Civil Jury Instructions
9.22; Wash. Pattern Jury Instructions—Criminal 120.01, 120.02.01. The
instructions as modified correctly stated the law, were supported by the evidence,
fairly covered the issues at trial, and were not misleading. See Peralta v. Dillard,
744 F.3d 1076, 1082 (9th Cir. 2014). The district court did not abuse its discretion
1
Blondin challenges the rejection of the following proposed instructions:
No. 28, “Shooting a Taser in dart mode is not a trivial or low level of force;” No.
29, “It is unreasonable to use more than trivial force to gain compliance or
overcome passive resistance;” No. 31, “In considering whether Shelton used
unreasonable force on Blondin, the term ‘active resistance’ requires some form of
physical resistance, and not mere non-compliance;” No. 32, “When considering
whether defendant Shelton had probable cause to arrest or charge plaintiff Don
Blondin for ‘obstructing,’ you are instructed that mere non-compliance with a
police order, standing along [sic], cannot form the basis for probable cause to
arrest.”
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in choosing the instructions or rejecting Blondin’s proposed instructions. See, e.g.,
Brewer v. City of Napa, 210 F.3d 1093, 1097 (9th Cir. 2000).
AFFIRMED.
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