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Tortu v. Las Vegas Metropolitan Police Dep't

March 3, 2009

CHRISTOPHER ARMONDO TORTU, PLAINTIFF-APPELLANT,
v.
LAS VEGAS METROPOLITAN POLICE DEPARTMENT; BILL YOUNG, IN HIS OFFICIAL CAPACITY AS SHERIFF OF THE LAS VEGAS METROPOLITAN POLICE DEPARTMENT; RICHARD CASHTON, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A POLICE OFFICER OF THE LAS VEGAS METROPOLITAN POLICE DEPARTMENT; EUGENE L. ENGLE, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A POLICE OFFICER OF THE LAS VEGAS METROPOLITAN POLICE DEPARTMENT; DUANE COWLEY, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A POLICE OFFICER OF THE LAS VEGAS METROPOLITAN POLICE DEPARTMENT; ALBERT REEDER, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A POLICE OFFICER OF THE LAS VEGAS METROPOLITAN POLICE DEPARTMENT; JULIUS PRATOR, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A POLICE OFFICER OF THE LAS VEGAS METROPOLITAN POLICE DEPARTMENT, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the District of Nevada Robert C. Jones, District Judge, Presiding D.C. No. CV-03-00783-RCJ.

The opinion of the court was delivered by: Hug, Circuit Judge

FOR PUBLICATION

Argued and Submitted May 12, 2008 -- San Francisco, California.

Before: Procter Hug, Jr., Andrew J. Kleinfeld, and N. Randy Smith, Circuit Judges.

Partial Concurrence and Partial Dissent by Judge N. Smith

OPINION

Christopher Tortu appeals the district court's order granting defendant Officer Eugene Engle's motion for judgment as a matter of law and, in the alternative, his motion for a new trial. After the jury returned a verdict in favor of Officers Richard Cashton and Duane Cowley but finding Engle liable, the district court granted Engle's Fed. R. Civ. P. 50(b) motion for judgment as a matter of law and, alternatively, his Rule 59 motion for a new trial. However, neither Engle nor the other two officers filed a Rule 50(a) motion for judgment as a matter of law. Tortu claims this procedural error should have prevented Engle from filing a Rule 50(b) motion, and further claims the district court abused its discretion when it granted Engle's motion for a new trial. Alternatively, Tortu argues the district court erroneously found Engle protected by qualified immunity.

We have jurisdiction pursuant to 28 U.S.C. § 1291 and hold that the district court should not have entertained Engle's Rule 50(b) motion because he failed to file a Rule 50(a) motion, which must be filed before a court can consider a Rule 50(b) motion. We also conclude the district court abused its discretion when it granted Engle's Rule 59 motion for a new trial because the verdict was not against the clear weight of the evidence. For the reasons discussed below, we reverse the district court and remand with instructions to reinstate the jury's verdict and enter judgment accordingly.

I. Factual and Procedural Background

This case arises out of Christopher Tortu's arrest at the McCarran International Airport in Las Vegas, Nevada on July 9, 2001. After filing his complaint seeking redress for the alleged unreasonable force applied by the officers, the district court granted defendants' partial motion for summary judgment and dismissed many of Tortu's claims. The case then proceeded to trial on the only issue remaining: whether Officers Richard Cashton, Duane Cowley, and Eugene Engle used excessive force while arresting Tortu.

A. Trial Proceedings

During trial, both parties presented widely divergent accounts of the events that transpired during Tortu's arrest. In its post-trial order, the district court heavily relied on these vast differences in testimony as well as the significant amount of testimony from the officers and their witnesses to grant Engle's post-trial motions. Accordingly, we provide a summary of the testimony presented at trial and include each party's account of the events when the two versions substantially differed. To better understand the jury's verdict, we separate the events into three acts: (1) the incident in the terminal, (2) the incident in the jetway, and (3) the incidents on the tarmac and in the police SUV.

1. The Terminal

Tortu, along with his traveling companion Kiley Fox, arrived at the airport early for their Southwest Airlines flight to Los Angeles. While playing video poker and waiting for the plane, Tortu misplaced their tickets. The tickets were discovered by an airport employee and turned in at the security checkpoint. Fox left to retrieve the tickets at the security checkpoint where the tickets were being held.*fn1 As Fox was retrieving the tickets, the gate agent closed the jetway door and Tortu went up to the agent and asked to board the plane. The gate agent told him he could not board the plane without a ticket. Disregarding this instruction, Tortu followed the agent and boarded the plane as the agent led another passenger down the jetway.

Once on the plane, the Southwest employees asked him to leave because he had no ticket. He refused. A Southwest official then called the police, and an officer escorted Tortu off the plane. As he was exiting the jetway, Tortu yelled at a Southwest manager and angrily walked away from the gate.

The officers at the scene walked toward Tortu and asked him to stop walking away. Once he finally stopped, Tortu and the officers engaged in a verbal altercation that grew in severity. Tortu testified that at least three officers then jumped him from behind and handcuffed him. The officers, however, stated that Tortu forcibly resisted their questioning and arrest attempt, requiring the officers to force Tortu onto the ground to handcuff him. Tortu contended that, after securing the handcuffs, the officers continuously beat him-a claim the officers denied. The three defendant officers, Cashton, Cowley and Engle, then took Tortu to an empty jetway.

2. The Jetway

Once in the jetway, the officers testified that Tortu became combative and fought them as they led him down the jetway. Tortu, however, claimed the officers continuously roughed him up while bringing him down the jetway. Specifically, Tortu stated they stuck him in a luggage-sizing bin at the end of the jetway and beat him. Tortu claimed these beatings were so severe that, while punching him, Officer Cashton's pectoral muscle detached from the bone and tore his rotator cuff. The officers denied beating Tortu and testified that these injuries occurred when Tortu lowered his shoulder into Cashton, slamming him into the jetway wall. Three Southwest employees observed the actions in the jetway and substantiated the defendants' contentions.

The officers then led Tortu down the jetway stairs and onto the tarmac. While the officers brought Tortu down the stairs, they testified he was very disruptive and stuck his feet between the steps, purposefully impeding their progress.

Tortu, however, claimed the officers forcibly dragged him down the staircase.

3. The Tarmac and Police SUV

Once on the tarmac, Tortu testified that the officers threw him to the ground and Officer Engle punched him in the back of the head, bruising and cutting Engle's hand. Engle, in contrast, testified that Tortu caused these hand injuries during the scuffle in the jetway.

After being thrown on the ground, Tortu testified that the officers threw him on the hood of the police SUV and forced him into the back seat of the SUV. With Tortu still handcuffed, the officers sat him between Officers Cashton and Cowley in the back seat. Tortu testified that Officer Engle then reached back between the two front seats and squeezed Tortu's testicles as hard as he could for about ten seconds. Tortu stated the pain was so severe that he could not breathe. All three officers denied squeezing or in any way intentionally harming Tortu's testicles. After this final incident, Engle drove Tortu, along with Cashton and Cowley, to the airport police substation and then on to the Clark County Detention Center. The Southwest employees did not observe the incidents on the tarmac or in the vehicle.

4. Medical Evidence of Tortu's Injuries

At trial, Tortu presented significant medical evidence of his injuries from these events including testimony of examining doctors.

The day after Tortu got out of jail, he visited a primary care physician to examine his injuries. The doctor noted that the left side of Tortu's face was swollen with bruises, he had a lump on the back of his head and also large bruises on the side of his body. The doctor then examined Tortu's testicles and found them very swollen, tender, and bruised. During this examination, Tortu complained of exceptional pain when the doctor touched his testicles. The doctor ordered an ultrasound, which indicated blood in the testes. Because of this test result and the rest of Tortu's injuries, the doctor referred Tortu to a urologist, a neurologist, and an orthopedic surgeon. The medical bills from these visits totaled nearly $4400.

Eleven days after the incident, the urologist's exam revealed a hematoma in Tortu's scrotum, a significant bruise on the scrotal skin, and tenderness along the spermatic cords on both sides of his testicles. The urologist further noted Tortu experienced extreme pain and tenderness when he touched Tortu's testicles. The urologist testified that squeezing Tortu's testicles could have led to these testicular and scrotal injuries.

5. Jury Instructions and Verdict

After four days of trial, the judge and counsel for the parties discussed the proposed jury instructions. The defendants offered a proposed jury instruction on qualified immunity. The judge refused the instruction. He explained his reason as follows:

I don't think it's appropriate to give this [qualified immunity] instruction here. It's a matter for the Court if the jury concludes and comes back with a finding of liability. You're at liberty, either in the context of a motion for new trial or motion for judgment notwithstanding, to argue that th[e] second prong . . . has not been met by the plaintiff; that is, even though the jury found unreasonable use of force, that's the factual issue, it would be reasonable for an officer to conclude that the use of a strike to the groin in counteracting a resistance to arrest was a reasonable misinterpretation under the current case law. . . . [T]herefore, I've stricken this instruction and believe that the more appropriate place is either in a motion for summary judgment up front or in a motion for judgment notwithstanding or otherwise.

The judge later added that qualified immunity is "a legal question that the jury just shouldn't answer." Both parties agree that the qualified immunity ...


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