United States District Court, N.D. California, San Jose Division
September 21, 2005.
LAURA-BUSHELL-McINTYRE and BRYON McINTYRE, Plaintiffs,
WILLIAM FOSTER, and CITY OF SAN JOSE, Defendant.
The opinion of the court was delivered by: JAMES WARE, District Judge
ORDER GRANTING DEFENDANTS' MOTION FOR RECONSIDERATION AND UPON
RECONSIDERATION, GRANTING DEFENDANTS' RENEWED MOTION FOR JUDGMENT
AS A MATTER OF LAW
At the close of the evidence, pursuant to Federal Rule of Civil
Procedure 50(a), Defendants William Foster and the City of San
Jose moved for judgment in their favor as a matter of law with
respect to Plaintiff Bryon McIntyre's claim for battery and with
respect to Plaintiff Laura Bushell-McIntyre's claims for battery
and violation of civil rights. The motions were taken under
submission and the case was submitted to the jury.
The jury returned a verdict in favor of Plaintiff Bushell
McIntyre and against Defendants. Pursuant to Federal Rule of
Civil Procedure 50(b), Defendants made a Renewed Motion for
Judgment as a Matter of Law. On March 15, 2005, in a written
Order, the Court denied the Renewed Motion for Judgment.
Defendants have now moved the Court to reconsider its March 15
Order on the ground that the decision was based on an erroneous
factual premise with respect to the important issue of whether
Officer Foster had probable cause to arrest Plaintiff
Bushell-McIntyre. Defendants contend that even construing the
evidence in a light most favorable to the Plaintiff, as a matter
of law, Officer Foster had probable cause to arrest Plaintiff for
battery on a police officer. Consequently, the Defendants contend that they are entitled to Judgment as a Matter of Law
with respect to any claim on which Plaintiff bore the burden of
proving lack of probable cause.
Furthermore, Defendants content that, because the evidence
clearly established that Officer Foster had probable cause to
arrest Plaintiff for battery on a police officer, he was entitled
to use force to effect the arrest, unless the Plaintiffs proved
that the law put him on notice that the force he used was clearly
unlawful. Defendants contend that even construing the evidence in
a light most favorable to the Plaintiff, there was no evidence
that would put a reasonable police officer on notice that the
force used to arrest Plaintiff was clearly unlawful. Defendants
ask the Court to reconsider its March 15, Order and grant them
Judgment as a Matter of Law.
2. MOTION FOR RECONSIDERATION
Defendants' principal ground for their Motion for
Reconsideration is manifest failure of the Court to apply the law
to undisputed facts. Specifically, Defendants contend that on the
basis of the facts construed favorably to Plaintiff, Officer
Foster had probable cause to arrest Plaintiff for battery of a
police officer and to use force in effecting the arrest and
therefore he is entitled to qualified immunity from liability on
all Claims of Plaintiff Bushell-McIntrye. Defendants attached a
copy of the trial transcript to their moving papers. Defendants
emphasize that expert witness testimony by Plaintiff's expert
witness establish probable cause for Foster's arrest and for his
using force to respond to the battery. After reading the
transcript, the Court now decides that in ruling on the
post-verdict motion, the Court did not give due consideration to
whether Officer Foster was qualifiedly immune from liability
based on the facts of the case. Therefore, Defendants' motion for
reconsideration is granted. The Court proceeds to reconsider the
Renewed Motion for Judgment under Federal Rule of Civil Procedure
3. LEGAL STANDARD IN RULING ON MOTION FOR JUDGMENT
The Court reiterates the legal standard for ruling on the
Motion for Judgment which was contained in its March 15 Order. In
ruling on a motion for judgment as a matter of law, "the trial
court can overturn the jury and grant such a motion only if,
under the governing law, there can be but one reasonable conclusion as to the verdict." Winarto v. Toshiba
America Electronics Components, Inc., 274 F.3d 1276 (9th Cir.
2001). "In other words, the motion should be granted only if
`there is no legally sufficient basis for a reasonable jury to
find for that party on that issue.'" Id. citing Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 149 (2000). In
ruling on a motion for judgment as a matter of law, the court
must not make credibility determinations or weigh the evidence
and should view all inferences in the light most favorable to the
nonmoving party. Reeves, 530 U.S. at 150 (citing Anderson v.
Liberty Lobby, 477 U.S. 242, 255 (1986). "[T]he court must
accept the jury's credibility findings consistent with the
verdict." Bilbrey by Bilbrey v. Brown, 738 F.2d 1462, 1468 n. 8
(9th Cir. 1984). It "must disregard all evidence favorable to the
moving party that the jury is not required to believe." Reeves,
530 U.S. at 151. The court "may not substitute its view of the
evidence for that of the jury." Johnson v. Paradise Valley
Unified Sch. Dist., 251 F.3d 1222, 1227 (9th Cir. 2001).
Under this standard the Court proceeds to consider if under the
facts so construed, Officer Foster is entitled to qualified
immunity from liability for the arrest or the force used to
effect the arrest.
4. QUALIFIED IMMUNITY BASED ON PROBABLE CAUSE FOR ARREST
A claim of qualified immunity requires a two part analysis.
First, the Court must consider whether the evidence submitted,
taken in the light most favorable to the party asserting the
injury, shows that the officer's conduct violated a
constitutional right. See Saucier v. Katz, 533 U.S. 194
(2001). If the evidence does not establish the violation of a
constitutional right, the officer is not liable. See id. The
Fourth Amendment prohibits unreasonable seizures. Brower v.
County of Inyo, 489 U.S. 593, 596 (1989). An arrest without
probable cause violates an individual's constitutional right to
be free from unreasonable seizures.
The Renewed Motion for Judgment as a Matter of Law invites the
Court to determine whether, even if Plaintiff Bushell-McIntyre's
evidence is believed, her admission that she touched Officer
Foster accords him immunity for liability for the arrest because
her uninvited and unwelcome contact with his body constituted
probable cause for arrest for battery of a police officer. The
Court has reviewed the transcript of the trial and the legal memoranda
filed by the parties. Both parties called expert witnesses on the
standards of conduct of reasonable police officers. Both expert
witnesses stated that in their respective opinions a reasonable
police officer would believe that, under the circumstances facing
Officer Foster, an individual who reaches out and touches the
officer's badge without the police officer's permission is
committing a battery against a police officer. Having
reconsidered the matter, the Court now finds that the evidence
admits to but one conclusion, namely that Officer Foster had
reasonable cause to believe that Plaintiff Bushell-McIntyre was
committing battery on a police officer when she touched his badge
without his permission. Therefore, he had probable cause to
arrest her for that offense.
There was a dispute in the evidence over whether Plaintiff
committed a second battery on Officer Foster by shoving him with
her left arm against his right shoulder. Officer Foster testified
that after she "grabbed" his badge, he knocked her hand away with
his arm. According to the testimony of Officer Foster, in
response to knocking her hand away, Plaintiff shoved his right
Plaintiff admitted reaching out to "touch" Officer Foster's
badge without his permission so that she could read his badge
number. Plaintiff testified that in response to her touching his
badge, Officer Foster knocked her hand away with a hard object.
She believes that it was a flashlight he was holding. She
testified that she made no further physical contact with Officer
Foster other than touching his badge. She testified that he
forcefully and physically arrested her within seconds after he
knocked her hand away.
With regard to this second incident, the evidence clearly
established that Officer Foster believed that Plaintiff shoved
him. Under the law, his belief that an individual has shoved him,
even if he is mistaken in that belief, entitles him to qualified
immunity to arrest that individual for battery on a police
officer. If an officer makes a reasonable mistake as to what the
law requires, the officer is nevertheless entitled to immunity.
See Saucier v. Katz, 533 U.S. 194 at 1258. The qualified
immunity defense "provides ample protection to all but the
plainly incompetent or those who knowingly violate the law."
See Malley v. Briggs, 475 U.S. 335, 341 (1986). The inquiry
is not whether another reasonable or more reasonable interpretation of events can be
constructed after the fact. Rather, the issue is whether a
reasonable police officer could have believed that his or her
conduct was justified under the circumstances confronting the
officer at the time.
The arrest encounter took place very quickly. Officer Foster
believed he was dealing with a person who was intoxicated. In his
mind she had grabbed his badge in a belligerent fashion and after
he had knocked her hand away, she had retaliated by shoving him.
Under these circumstances, when Officer Foster decided to place
Plaintiff under arrest for battery of a police officer. Even if
he were mistaken as to the state of her sobriety or her
motivation in touching his badge or even the source of the shove,
the evidence admits to but only one conclusion: a reasonable
police officer in Officer Foster's position would have believed
that he or she had probable cause to arrest Plaintiff for battery
of a police officer.
5. QUALIFIED IMMUNITY FROM LIABILITY FOR USE OF FORCE TO EFFECT
Having decided that a reasonable police officer in Officer
Foster's situation would have had probable cause to arrest
Plaintiff for battery of a police officer, the next issue is
whether, construing the evidence in a light most favorable to the
Plaintiff, Officer Foster is immune from liability for using
force to effect the arrest. The same Saucier analysis applies
to the use of force.
The law is clearly established that apprehension by the use of
force is a seizure subject to the reasonableness requirement of
the Fourth Amendment. Tennessee v. Garner, 471 U.S. 1, 7
(1985). The determination of "reasonableness" must embody
allowance for the fact that police officers are often forced to
make split-second judgments, in circumstances that are tense,
uncertain and rapidly evolving about the amount of force that is
necessary in a particular situation. The evidence, taken in the
light most favorable to the party asserting the injury, supports
but one conclusion, namely that Officer Foster did not use
excessive force in arresting Plaintiff.
Officer Foster testified that after he was shoved by the
Plaintiff, he applied a pain-compliance hold against her. He took
her to the floor and perhaps with the assistance of another
officer, handcuffed her and took her to his police car.
Plaintiff's account of the "take down" did not vary
substantially from the description given by Officer Foster. She
was certain that a second police officer assisted Officer Foster
and testified that she was roughly treated when being escorted to
a police car. It is significant to the Court's analysis that the
principal damages claimed by Plaintiff are not from physical
injuries suffered from the take-down. Her most significant injury
was her emotional distress. She became so traumatized by the
circumstances of the arrest that days after the arrest, she froze
at the sight of a police officer.
The Court concludes that the facts known to Officer Foster or
reasonably believed by him show that a reasonable officer in
Officer Foster's position could have believed that he was
authorized to use a pain-compliance take down to take Plaintiff
into custody. See Reynolds v. San Diego County (9th Cir.
1996), 84 F. 3d 1162, 1170. Therefore, Defendants are immune from
liability for any claim on which Plaintiff must prove use of
excessive force by Officer Foster.
The Court will now consider any effect which these legal
conclusions have on each claim.
A. FIRST CLAIM
Plaintiff Bushell-McIntyre's First Claim against the Defendants
was battery. The jury was instructed on the elements of battery
and on self-defense claimed by Defendants. The jury found in
favor of Defendants. Accordingly, in its March 15 Order, the
Court denied the Renewed Motion for Judgment as a Matter of Law
on that claim as moot. Nothing in the Court's new conclusions
causes the Court to alter it ruling with respect to the First
B. SECOND CLAIM.
Plaintiff's Second Claim against the Defendant was for battery
by police officer during an arrest. The jury was instructed to
determine, first whether Officer Foster had probable cause to
arrest the Plaintiff; and secondly, if so, whether he used
reasonable force. The jury found that Defendant Foster did not
have probable cause to arrest the plaintiff and awarded Plaintiff
$500.00 on the Second Claim. Pursuant to the Court's legal
conclusions articulated above, the Court disregards the jury's
verdict and will enter Judgment as a Matter of Law in favor of
Defendants on Plaintiff Bushell McIntyre's Second Claim.
C. THIRD CLAIM.
Plaintiff's Third Claim was for False Arrest. The jury found in
favor of Plaintiff on this claim and awarded to her $100,000.
This Claim can only be established on proof of an arrest without
probable cause. Since the Court has ruled that as a matter of law
there was probable cause for an arrest and Officer Foster is
entitled to qualified immunity, Defendants are entitled to
Judgment as a Matter of Law on Plaintiff Bushell McIntyre's Third
D. FOURTH CLAIM.
With respect to Plaintiff's Fourth Claim, the jury was
instructed that Plaintiff claims that her rights protected by the
Fourth Amendment were violated when she was arrested by Officer
Foster without probable cause and when unreasonable force was
used to place her under arrest. Pursuant to the Court's legal
conclusions articulated above, the Court disregards the jury's
verdict and will enter Judgment as a Matter of Law in favor of
Defendants on Plaintiff Bushell McIntyre's Fourth Claim.
For the reason set out in this Order, Judgment as a Matter of
Law should be entered in favor of Defendants and against
Plaintiff Bushell-McIntyre. The motion for a new trial is denied.
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