FILED
NOT FOR PUBLICATION
MAR 01 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRIS WILLIS and MARY WILLIS, No. 14-16560
individually and Successors in Interest to
Stephen Willis, D.C. No. 1:09-cv-01766-BAM
Plaintiffs-Appellees,
MEMORANDUM*
v.
CITY OF FRESNO; et al.,
Defendants-Appellants.
CHRIS WILLIS and MARY WILLIS, Nos. 14-16641
individually and Successors in Interest to
Stephen Willis,
D.C. No. 1:09-cv-01766-BAM
Plaintiffs-Appellants,
v.
CITY OF FRESNO; et al.,
Defendants-Appellees.
Appeals from the United States District Court
for the Eastern District of California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Page 2 of 7
Barbara McAuliffe, Magistrate Judge, Presiding
Argued and Submitted November 15, 2016
San Francisco, California
Before: MELLOY,** CLIFTON, and WATFORD, Circuit Judges.
1. The district court did not err by denying defendants’ motion for judgment
as a matter of law. Given the evidence presented at trial, a reasonable jury could
conclude that Officer Catton used excessive force in firing the final shot or shots.
While we acknowledge that the jury heard conflicting accounts as to whether
Willis was reaching for his gun when Officer Catton fired, it was for the jury to
decide which version of events to believe. The jury could reasonably have
concluded from the evidence that Willis was not reaching for his gun and that
Officer Catton’s use of force was therefore unreasonable.1
The district court did not err by denying Officer Catton qualified immunity.
The evidence presented at trial established that if Willis had been reaching for the
gun, deadly force was justified. Since the jury concluded that the force used was
**
The Honorable Michael J. Melloy, United States Circuit Judge for the
U.S. Court of Appeals for the Eighth Circuit, sitting by designation.
1
We agree with the district court that the jury must have concluded that the
officers’ use of force was objectively reasonable during the initial shots and main
volley of gunfire, but that Officer Catton’s decision to fire the final shot or shots
was not objectively reasonable.
Page 3 of 7
not justified, it must have concluded that Willis was not reaching for the gun and
thus did not pose an immediate threat of harm when Officer Catton fired.
The constitutional right to be free from the use of deadly force absent an
immediate threat of harm to officers or others was clearly established at the time
Officer Catton acted. See Tennesee v. Garner, 471 U.S. 1, 11 (1985); Wilkinson v.
Torres, 610 F.3d 546, 550 (9th Cir. 2010). All reasonable officers would have
known that using deadly force on an individual who poses no immediate threat to
the officer or others violates the Fourth Amendment.
2. The district court did not abuse its discretion by admitting testimony from
plaintiffs’ use-of-force expert. The expert opined that Willis no longer posed a
threat when Officer Catton fired the final shot or shots, and acknowledged during
cross-examination that if Willis had been reaching for the gun, deadly force would
have been appropriate. As noted above, the jury was responsible for resolving
whether Willis was reaching for the gun at the time Officer Catton fired. Allowing
plaintiffs’ expert to respond to hypotheticals based on evidence presented at trial
was not an abuse of discretion.
3. The district court did not abuse its discretion by declining to submit
special interrogatories to the jury. See Ruvalcaba v. City of Los Angeles, 167 F.3d
514, 521 (9th Cir. 1999). The district court, in its pre-trial order, set November 22,
Page 4 of 7
2013, as the deadline to submit jury instructions and verdict forms. Defendants did
not raise the issue of special interrogatories until just before the close of their case-
in-chief on December 13, 2013, and they did not submit proposed interrogatories
until December 14, 2013. Given the lateness of the request and the fact that the
verdict form already required a jury determination of all factual issues essential to
the judgment, the district court did not abuse its discretion by refusing to submit
defendants’ untimely special interrogatories to the jury. See Landes Construction
Co. v. Royal Bank of Canada, 833 F.2d 1365, 1374 (9th Cir. 1987).
4. The district court did not abuse its discretion by admitting evidence of
Willis’ alcohol intoxication. Evidence of Willis’ intoxication was relevant to the
jury’s assessment of whether to believe the officers’ testimony that Willis
disregarded their orders to drop his gun and instead aimed it at them. See Boyd v.
City & County of San Francisco, 576 F.3d 938, 944 (9th Cir. 2009).
The district court abused its discretion by admitting evidence of Willis’
marijuana use. Defendants presented no evidence indicating that Willis had
consumed marijuana in the 72 hours before the shooting and no evidence linking
Willis’ marijuana use to his disputed behavior. The error in admitting this
evidence, however, was harmless. Because defendants presented no evidence of a
causal relationship between Willis’ marijuana use and his behavior on the night in
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question, no reasonable probability exists that the jury relied on this evidence in
finding Willis 80% contributorily negligent. See Obrey v. Johnson, 400 F.3d 691,
699–701 (9th Cir. 2005).
5. The district court erred by precluding plaintiffs from seeking damages for
Willis’ pre-death pain and suffering. The court, relying on California state law,
ruled that such damages were not recoverable. Cal. Civ. Proc. Code § 377.34.
Shortly after entry of judgment, this court held that § 377.34 limits recovery too
severely to be consistent with the deterrence policy underlying 42 U.S.C. § 1983,
and that plaintiffs may therefore seek damages for pre-death pain and suffering
under § 1983 when the decedent’s death was caused by the violation of federal
law. Chaudhry v. City of Los Angeles, 751 F.3d 1096, 1105 (9th Cir. 2014). We
must accordingly vacate the judgment on plaintiffs’ § 1983 claim and remand the
case to the district court so that plaintiffs may present evidence in support of their
claim for pre-death pain and suffering damages. As noted earlier, we agree with
the district court that the jury’s verdict reflects an implicit finding that the officers’
use of force was objectively reasonable throughout their encounter with Willis,
except for the final shot or shots fired by Officer Catton. Therefore, on remand,
plaintiffs will be limited to recovering only those pre-death pain and suffering
damages caused by Officer Catton’s final shot or shots.
Page 6 of 7
6. The district court did not commit reversible error during jury selection.
Plaintiffs contend they were forced to use peremptory strikes to correct the district
court’s erroneous denial of their for-cause challenges. We need not determine
whether the district court erred in failing to dismiss the challenged jurors for cause
because a party is not constitutionally harmed as a result of using peremptory
strikes to cure a for-cause mistake. United States v. Martinez-Salazar, 528 U.S.
304, 317 (2000). Since the allegedly biased jurors did not ultimately sit on the
jury, a new trial is not warranted. See id. at 316.
7. The district court properly denied plaintiffs’ motion for a new trial, which
asserted that there was no factual support for the jury’s comparative negligence
finding. A reasonable jury could conclude, based on its assessment of the entire
encounter between the officers and Willis, that Willis was 80% responsible for his
injuries.
8. With respect to the district court’s ruling on attorney’s fees, we reject
defendants’ argument that the district court erred by awarding plaintiffs fees for
work performed on the prior appeal. Plaintiffs were not required to file a motion
requesting fees at the conclusion of the prior appeal because at that point they were
not prevailing parties under 42 U.S.C. § 1988; all they had won on appeal was the
right to pursue their claims at trial. Thus, any motion for attorney’s fees at that
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time would have been premature. See Tribble v. Gardner, 860 F.2d 321, 328 (9th
Cir. 1988). We also reject defendants’ argument that the district court erred by
considering plaintiffs’ pendent state law claims when evaluating the degree of
success plaintiffs achieved in the litigation. See Farrar v. Hobby, 506 U.S. 103,
112–13 (1992); Hensley v. Eckerhart, 461 U.S. 424, 434–37 (1983). Defendants’
remaining challenges to the district court’s fee award are likewise without merit.
We decline to rule on plaintiffs’ contentions that the district court abused its
discretion by reducing counsel’s hourly rates and by imposing an across-the-board
35% reduction. The district court should revisit these issues following the limited
re-trial on the issue of pre-death pain and suffering damages. The court predicated
the 35% reduction at least in part on the degree of success plaintiffs achieved in the
litigation, which could change depending on the extent to which plaintiffs recover
damages for Willis’ pre-death pain and suffering.
AFFIRMED IN PART, REVERSED IN PART, and REMANDED.
The parties shall bear their own costs.
Defendants’ Motion to Strike Plaintiffs’ Supplemental Letter Brief filed
January 13, 2016, is DENIED.