2. Defendants' Factual Attacks On the Jury's Verdict
"J. n.o.v. is proper if the evidence construed in the light most favorable to the non-moving party permits only one reasonable conclusion as to the verdict and that conclusion is contrary to the jury's; it is improper if reasonable minds could differ over the verdict." Fleming v. Dept. of Public Safety, 837 F.2d 401, 408 (9th Cir.), cert. denied, 488 U.S. 889, 109 S. Ct. 222, 102 L. Ed. 2d 212 (1988).
Defendants contend that plaintiffs failed to prove their Fourth Amendment claim, which requires a showing that the police officers were not justified in their use of deadly force. York v. City of San Pablo, 626 F. Supp. 34, 35 (N.D. Cal. 1985). Defendants correctly point out that the jury's finding that the shooting of Anton Ward was justified warrants the entry of judgment in their favor on plaintiffs' Fourth Amendment claim.
However, this finding by the jury is irrelevant to plaintiffs' Fourteenth Amendment claim. While the acts causing a Fourth Amendment seizure may lead to the denial of a liberty interest protected by the Fourteenth Amendment, there are numerous situations which implicate one of these provisions, but not the other. These provisions often involve different circumstances and have quite different standards applied to them. Thus, the granting of judgment in favor of defendants on plaintiffs' Fourth Amendment claim is within the contours of the jury's verdict and irrelevant to this motion for a J.N.O.V.
Defendants also move for a J.N.O.V. on the ground that, assuming one exists, plaintiffs failed to prove their Fourteenth Amendment claim. As discussed above, the ground for relief upon which the jury must have based its finding of § 1983 liability is a reckless disregard for the safety of Anton Ward. While defendants have completely failed to discuss the evidence before the Court, the Court finds that there was no factual basis for the jury's finding of liability on the part of Chief McNamara. The evidence presented against Chief McNamara and the City of San Jose dealt with the Police Department's failure to conduct independent investigations of officer shootings and to supervise one of the officer defendants. While such actions could constitute gross negligence, they do not rise to the level of reckless disregard and do not warrant the finding of liability made by the jury. Accordingly, the Court HEREBY GRANTS defendants' motion for a J.N.O.V. as to defendant McNamara.
On the other hand, the evidence is sufficient to support a finding of reckless disregard on the part of defendants Vasquez, Rodrigues and Renteria. The jury could have concluded that Anton Ward's death was caused by the defendants' reckless conduct leading up to the shooting, including planning the operation in a parking lot without notifying a supervisor, conducting a drug raid on a dark night in a neighborhood known to be dangerous, notifying only some of the neighbors that were being placed in the middle of the operation, failing to identify themselves to the person or persons from the Ward residence when they had the opportunity to do so in the front or side yards, climbing on and about fences adjacent to the Ward's backyard, failing to remain concealed, and deciding to confront Anton Ward while he was in his backyard. In other words, the jury may have concluded that the officers set in motion a chain of events that led to the gunpoint confrontation, during which the shooting of Anton Ward became necessary and was justified. Plaintiff's allegations referred to in Instruction No. 24, if true, are sufficient for a finding that defendants acted recklessly in violation of 42 U.S.C. § 1983. Since there was ample evidence presented at trial to support a finding that plaintiff's allegations are in fact true, defendants are not entitled to judgment notwithstanding the jury's verdict.
Additionally, defendants move for a J.N.O.V. on the ground that the only conclusion from the evidence presented was that they could have reasonably believed their actions were lawful in light of the clearly established law at the time and, therefore, are entitled to qualified immunity.
Immunity attaches when the official's actions could reasonably have been thought consistent with the rights they are alleged to have violated. Malley v. Briggs, 475 U.S. 335, 341, 89 L. Ed. 2d 271, 106 S. Ct. 1092 (1986). Defendants contend that the evidence presented to the jury proved that their actions were reasonable in light of the information they possessed and the clearly established law. However, they fail to go beyond this mere conclusion and explain how the evidence weighed so heavily in their favor that no other decision was warranted. The question of whether defendants' actions were reasonable in light of the law was presented to the jury and the jury's verdict includes an implicit rejection of defendants' immunity defense. The evidence presented to the jury
was not such that the Court can say that the jury's finding was in error.
3. Plaintiffs' Motion For a J.N.O.V. On Their Wrongful Death Claim
Plaintiffs move for a J.N.O.V. on their wrongful death claims. They argue that a finding of liability under § 1983 is equivalent to a finding of liability under the wrongful death statute because the same acts form the basis for liability under both laws.
However, the jury was not presented with a recklessness theory of recovery under the wrongful death statute. Where a party fails to request a particular issue be submitted to the jury, the party "will be held to have waived jury trial on that issue." Wright and Miller, Federal Practice and Procedure: Civil § 2507; Smith-Blair, Inc. v. R.H. Baker & Co., 232 F. Supp. 484 (S.D. Cal. 1962), aff'd on appeal, 331 F.2d 506 (9th Cir. 1964). When an issue has not been presented to the jury, the Court may make its own findings pursuant to Rule 49(a) of the Federal Rules of Civil Procedure or consider the issue to have been withdrawn.
Plaintiffs failed to properly present the issue of whether there was reckless conduct that would subject defendants to liability for the wrongful death of Anton Ward by excluding it from the special verdict form. The Court considers plaintiffs to have withdrawn this issue and declines to make its own findings on it. Plaintiffs' motions are denied.
C. MOTIONS FOR A NEW TRIAL
Defendants contend that the Court made various errors during the trial of this case and move for a new trial. Rule 59(a) of the Federal Rules of Civil Procedure provides, in relevant part, as follows:
A new trial may be granted to all or any of the parties and on all or part of the issues (1) in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States; . . .
"Rule 59 gives the trial judge the power to prevent what she considers to be a miscarriage of justice." Corder v. Gates, 688 F. Supp. 1418, 1424 (C.D. Cal. 1988), citing Moist Cold Refrigerator Co. v. Lou Johnson Co., 249 F.2d 246 (9th Cir. 1957), cert. denied, 356 U.S. 968, 78 S. Ct. 1008, 2 L. Ed. 2d 1074, 117 U.S.P.Q. (BNA) 498 (1958). A new trial may be ordered to correct manifest errors of law or fact, but "the burden of showing harmful error rests on the party seeking the new trial." Corder, 688 F. Supp. at 1424; accord Malhiot v. Southern California Retail Clerks Union, 735 F.2d 1133 (9th Cir. 1984), cert. denied, 469 U.S. 1189, 83 L. Ed. 2d 965, 105 S. Ct. 959 (1985). Furthermore, "[a] new trial may not be granted on grounds not called to the court's attention during the trial unless the error was so fundamental that gross injustice would result. Id.
Defendant's primary concern is with the jury instructions and verdict form presented to the jury prior to deliberation. Defendants argue that the Court erroneously presented the case to the jury without requiring a determination of proximate cause on plaintiffs' civil rights claims. The Court finds that defendants waived their right to make this objection by rejecting plaintiff's proposed special verdict form, which included questions on the issue of proximate cause, in favor of the one used and by submitting their own proposed verdict form leaving out any mention of proximate cause.
Furthermore, defendants are incorrect when they claim that the proximate cause issue was never presented to the jury. When reviewing jury instructions, the Court must consider the charge as a whole to determine whether the instructions fairly and adequately covered the issues presented, correctly stated the law and were not misleading. Thorsted v. Kelly, 858 F.2d 571, 573 (9th Cir. 1988), citing Coursen v. A.H. Robins Co., 764 F.2d 1329, 1337 (9th Cir.), modified, 773 F.2d 1049 (9th Cir. 1985).
In the case at bar, the jury verdict required the jurors to decide whether defendants caused Anton Ward's death by depriving him of his constitutional rights. Instruction No. 19 informed the jury that defendants were liable under 42 U.S.C. § 1983 if they subjected, or caused to be subjected, any citizen to the deprivation of his constitutional rights. Instruction No. 28 informed the jury that they were to decide whether Chief McNamara's conduct was "the proximate cause of the alleged constitutional violations." These instructions are to be considered in light of the only instruction presented to the jury defining causation, Instruction No. 35, which was an instruction on proximate cause. In light of these instructions, the jury could only have come to the conclusion that the violation of Anton Ward's constitutional rights by the defendant officers was the proximate cause of his death.
As an alternative grounds for denying defendants' motion, the Court notes that a finding of proximate cause is not necessary in all cases involving the violation of 42 U.S.C. § 1983. Proximate cause is a requirement for § 1983 liability only under some circumstances and theories of liability. It is not required where, as in this case, intentional or reckless conduct forms the basis for liability.
For defendants to be liable under 42 U.S.C. § 1983, there must be proof of an "affirmative link" between the constitutional violation and the injury sustained, in this case the death of Anton Ward. See City of Canton v. Harris, 489 U.S. 378, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989); Davis v. City of Ellensburg, 869 F.2d 1230, 1233-35 (9th Cir. 1989). While defendants recharacterize the "affirmative link" requirement as one requiring a finding of proximate cause, there is no authority for their position. The civil rights laws are to be read "against the background of tort liability that makes a man responsible for the natural consequences of his actions." Monroe v. Pape, 365 U.S. 167, 187, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961), overruled on other grounds, Monell v. Dept. of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). Principles of causation found within the common law apply to the determination of § 1983 liability. DeShaney v. Winnebago Social Services, 812 F.2d 298, 302 (7th Cir. 1987), aff'd on other grounds, 489 U.S. 189, 109 S. Ct. 998, 103 L. Ed. 2d 249, 57 U.S.L.W. 4218 (1989). Proximate cause is a requirement for a finding of negligence, but is not required in the field of intended torts, which rules apply to recklessness as well. See Restatement (Second) of Torts, § 501, comment a (1975); Olea v. Southern Pacific Co., 272 Cal. App. 2d 261, 266, 77 Cal. Rptr. 332 (1969).
Defendants rely upon Arnold v. International Business Machines, 637 F.2d 1350, 1355 (9th Cir. 1981) and Brower v. County of Inyo, 489 U.S. 593, 109 S. Ct. 1378, 103 L. Ed. 2d 628 (1989), as the basis for their opinion that a constitutional violation must be a "proximate cause" of the damages sustained by plaintiffs.
Arnold, 637 F.2d 1350 (9th Cir. 1981), however, supports the view that proximate cause is an issue in only some cases and lends no support to defendants' argument. As Arnold pointed out, in some cases the determination of state action and proximate cause will be quite similar. Id. at 1355-56. The Supreme Court, in Martinez v. California, 444 U.S. 277, 62 L. Ed. 2d 481, 100 S. Ct. 553 (1980), employed elements of proximate cause analysis in determining state action where state officials were being sued for the actions of third parties. Arnold, in contrast, involved the unique situation where a private party was being sued for the actions of government employees, the search and arrest of the plaintiff by police officers. Determining liability under § 1983 under such circumstances requires a finding of proximate cause because the private parties were not direct participants in the infringing conduct (i.e., they did not arrest or search the plaintiff themselves). When, however, there is no question of state action, the defendants having been government employees, and the defendants themselves performed the conduct at issue, the jury need only decide whether the defendants' conduct violated a constitutional right and caused injury. Proximate cause is no longer an issue.
Defendants' reliance on Brower v. County of Inyo, supra, is likewise misplaced. Defendants make the same mistake they boisterously chastise plaintiffs for; they rely on nothing more than dicta. Proximate cause was not an issue in Brower and Justice Scalia's use of the term proximate cause was nothing more than a general reference to extraneous issues the trial court might have to address on plaintiffs' Fourth Amendment claims. 109 S. Ct. at 1382-83. Furthermore, Brower cited Martinez v. California, 444 U.S. 277, 62 L. Ed. 2d 481, 100 S. Ct. 553, as support for this general reference. As discussed above, and explained in Arnold, 637 F.2d at 1356, Martinez was a case in which there was no need to address the issue of proximate cause. The Court merely discussed proximate causation principles within its state action analysis. State action was not disputed in this case. Accordingly, Brower lends no weight to defendants' assertion that the jury was required to make a finding of proximate cause in the case at bar.
Finally, plaintiff Delissa Ann Ward moves for a new trial. The jury found against Delissa Ann Ward during the first phase of this trial. Judgment was entered against her on June 30, 1989. Her motion for new trial was not filed until July 31, 1989, far beyond the 10 day limit set forth in Rule 59(b) of the Federal Rules of Civil Procedure. Accordingly, the Court HEREBY DENIES the motion as having been made untimely. In addition, the Court holds that the finding by the jury that Delissa Ann Ward did not entertain a good faith belief in the validity of her marriage was not clearly against the weight of the evidence.
D. MOTION TO ALTER THE JUDGMENT
Plaintiff Sabrina Prior moves under Rule 59(e) of the Federal Rules of Civil Procedure to reopen the judgment to allow her to amend the complaint to state a § 1983 claim in addition to her wrongful death claim. Plaintiff argues that she should be allowed to bring a civil rights action against defendants as a child of the decedent, Anton Ward. See Smith v. City of Fontana, 818 F.2d 1411 (9th Cir.), cert. denied, 484 U.S. 935, 98 L. Ed. 2d 269, 108 S. Ct. 311 (1987). However, plaintiff is not a child of Anton Ward and only had the right to bring a wrongful death claim. Therefore, there is no reason for plaintiff to amend her complaint and her Rule 59(e) motion is HEREBY DENIED.
For the foregoing reasons, the Court HEREBY GRANTS defendants' motion for judgment notwithstanding the verdict as to defendants the City of San Jose and its Chief of Police, Joseph McNamara. All other motions brought by defendants are HEREBY DENIED. Plaintiffs' motions for J.N.O.V. and a new trial are also HEREBY DENIED. The judgment in this case, entered on July 19, 1989, in favor of plaintiffs John Ward, Helen Ward and the Estate of Anton Ward and against defendants Renteria, Rodrigues, Vasquez is HEREBY AFFIRMED.
IT IS SO ORDERED.