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C. B. v. City of Sonora

United States Court of Appeals, Ninth Circuit

October 15, 2014

C. B., a minor, Plaintiff-Appellee,
CITY OF SONORA; MACE MCINTOSH, Chief of Police; HAL PROCK, Officer, Defendants-Appellants

Argued and Submitted En Banc, San Francisco, California March 17, 2014.

As Amended October 17, 2014.

Editorial Note:

This Pagination of this case accurately reflects the pagination of the original published, though it may appears out of sequence.

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Appeal from the United States District Court for the Eastern District of California. D.C. No. 1:09-cv-00285-AWI-SMS. Oliver W. Wanger, Senior District Judge, Presiding.


Civil Rights

The en banc court affirmed in part and reversed in part the district court's judgment entered following a jury trial, in an action arising out of a decision by Sonora City Police Department officers to handcuff and remove from school grounds C.B., an 11-year-old child with attention-deficit and hyperactivity disorder who was sitting on a bench and refused to leave the playground.

The en banc court held that the 2003 amendment to Fed.R.Civ.P. 51 abrogated prior case law that denied review of jury instructions in civil cases in the absence of a timely objection. The en banc court held that the plain error standard of review in the civil context is similar to, but stricter than, the plain error standard of review applied in criminal cases. When reviewing civil jury instructions for plain error, a court must consider, as in the criminal context, whether (1) there was an error; (2) the error was obvious; and (3) the error affected substantial rights. The en banc court held that it is appropriate to consider the costs of correcting an error, and--in borderline cases--the effect that a verdict may have on nonparties. Finally, the court also held that the decision whether to correct a plain error under Federal Rule of Civil Procedure 51(d)(2) is discretionary.

The en banc court concluded that defendants had not identified any plain error in the district court's jury instructions, that the district court's evidentiary rulings were not an abuse of discretion, and that defendants had not shown they were entitled to a settlement offset.

The en banc court further held that defendants Chief McIntosh and Officer Prock were not entitled to qualified immunity on C.B.'s Fourth Amendment excessive force claim because no officer could have reasonably believed that their use of handcuffs to remove C.B. from school grounds complied with the Fourth Amendment.

The en banc court held that Chief McIntosh and Officer Prock were entitled to qualified immunity with respect to C.B.'s unlawful seizure claim because a reasonable officer would not have known that taking a child in C.B.'s situation into temporary custody was unreasonable, and therefore unconstitutional.

Concurring in part and dissenting in part, Judge M. Smith, was joined in full by Judges O'Scannlain, Tallman and Bybee, and was joined as to Part I, which is the opinion of the court, by Chief Judge Kozinski and Judges Graber and Gould. In Part I of his opinion, Judge M. Smith stated that a majority of the court agreed that Chief McIntosh and Officer Prock were entitled to qualified immunity with respect to C.B.'s unlawful seizure claim. In Part II of his opinion, Judge M. Smith dissented from the majority's conclusion that the scope of C.B.'s right to be free from excessive force was clearly established. In his view, the officers were entitled to qualified immunity on the excessive force claim because a reasonable officer would not have known that handcuffing C.B. to safely take him into temporary custody violated his constitutional rights.

Concurring in part, Judge Gould, with whom Chief Judge Kozinski and Judge Graber joined, agreed with Parts I, II.A, II.B, II.C.2, and II.D of Judge Paez's opinion, concerning the factual background, rejection of the challenges to jury instructions and to evidentiary rulings, and the conclusions that Chief McIntosh and Officer Prock used excessive force in violation of the Fourth Amendment when, in removing C.B. from school grounds, they handcuffed him for 25 to 30 minutes and that they were not entitled to qualified immunity for handcuffing C.B. Judge Gould joined in Part I of Judge M. Smith's opinion, concerning the unlawful seizure claim, concluding that the officers were entitled to qualified immunity as to the seizure of C.B.

Concurring in part and dissenting in part, Judge Berzon, joined by Judge Thomas, agreed with Judge Paez's opinion, with one exception: As to C.B.'s unlawful seizure claim, she concurred in the result reached by Judge Paez but would reach that result via different reasoning. Because there was no cause to believe C.B. could be detained under the relevant California Welfare Code provisions, and no reasonable officer could believe that there was, she would affirm the judgment for C.B. on these grounds.

Dissenting in part, Judge Paez in Part II.C.1 of his opinion, joined by Judge Silverman, disagreed that Chief McIntosh and Officer Prock were entitled to qualified immunity on C.B.'s Fourth Amendment seizure claim. Judge Paez stated that the officers' decision to seize C.B. and remove him from school grounds was not reasonable and the law was clearly established that, at a minimum, police seizures at the behest of school officials had to be reasonable in light of the circumstances and not excessively intrusive.

Stephanie Y. Wu (argued) and Cornelius J. Callahan, Borton Petrini LLP, Modesto, California, for Defendants-Appellants.

Julia Levitskaia (argued), John F. Martin, and Georgelle Christina Heintel, Law Offices of John F. Martin, Walnut Creek, California, for Plaintiff-Appellee.

Before: Alex Kozinski, Chief Judge, and Diarmuid F. O'Scannlain, Sidney R. Thomas, Barry G. Silverman, Susan P. Graber, Ronald M. Gould, Richard A. Paez, Marsha S. Berzon, Richard C. Tallman, Jay S. Bybee and Milan D. Smith, Jr., Circuit Judges. Opinion by Judge Paez as to all but Part II.C.1; Opinion by Judge M. Smith as to Part II.C.1; Partial Concurrence and Partial Dissent by Judge M. Smith; Concurrence by Judge Gould; Partial Concurrence and Partial Dissent by Judge Berzon.


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PAEZ, Circuit Judge:

This case arises out of a decision by Sonora City Police Department officers to handcuff and remove from school grounds an 11-year-old child with attention-deficit and hyperactivity disorder (" ADHD" ) who was doing nothing more than sitting quietly and resolutely in the school playground. After a seven-day trial, a jury found that the City of Sonora, Sonora Chief of Police Mace McIntosh, and Officer Harold Prock (collectively " Defendants" ) were liable for violating C.B.'s Fourth Amendment rights and for tortious acts. The district court subsequently entered judgment on the verdict, and Defendants appeal.

We must decide two central issues. First, we must decide whether the district court's supplemental jury instructions were proper. To resolve this question, we also must determine whether litigants may object to civil jury instructions for the first time on appeal and, if so, what standard of review governs such challenges. Second, we must decide whether the district court erred in denying the individual officers qualified immunity on C.B.'s constitutional claims. Additionally, Defendants raise several evidentiary and post-judgment arguments, which we also address. After setting forth the factual and procedural background of the case, we turn to the district court's supplemental instructions.



On September 28, 2009, sixth-grader C.B. was having a " rough" day at school. C.B. had been diagnosed with ADHD and took prescribed medications to manage his symptoms, but that morning, he had forgotten to take his medications. As a result, he experienced periods of unresponsiveness throughout the day; C.B., his parents, and school officials described this as C.B. " shutting down." The school was aware of C.B.'s ADHD and had an accommodation plan under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, in place for him. The accommodation plan designated Coach Karen Sinclair's office as a safe space where C.B. could go if he was experiencing a " shut down," to calm himself and refocus until he was ready to return to class.

Unfortunately, that day, things did not unfold according to plan. When C.B. experienced a " shut down" during recess, Coach Sinclair tried to convince him to go to her office, but C.B. remained unresponsive

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and refused to leave the playground. According to Coach Sinclair, during this exchange, C.B. " reared up" on three different occasions from the bench where he was sitting. Coach Sinclair then advised C.B. that if he did not come inside, she would call the police. To this, C.B. allegedly responded by saying, " call them." C.B., however, testified that he never moved from the bench or said anything to Coach Sinclair during this interaction.

Coach Sinclair testified that she made the decision to call the police because she was concerned about C.B.'s safety. She explained that her concern was based on an incident two years earlier, during which C.B. had stated that " he was tired of feeling the way he felt and he wanted to go out into traffic and kill himself." Coach Sinclair was particularly concerned because the street outside the schoolyard was a busy thoroughfare. Coach Sinclair admitted, however, that C.B. had never previously attempted to run from her.

At Coach Sinclair's behest, police were called. The police dispatcher broadcast notice to the officers of " an out of control juvenile." When Chief McIntosh arrived at the playground, Coach Sinclair whispered to him, " [r]unner[,] [n]o medicine," and made corresponding hand signals. Chief McIntosh testified that he then sat down next to C.B. and attempted to engage him in conversation, but C.B. was unresponsive. He further testified that Coach Sinclair then " started telling [him] that [C.B.] was out of control, had not taken his medications, was yelling and cussing." She also advised Chief McIntosh that she no longer wanted C.B. on the school grounds. Chief McIntosh did not ask any followup questions about C.B.'s medications or behavior. C.B. remained completely quiet and unresponsive throughout the time Chief McIntosh was with him.

Coach Sinclair's testimony contradicted much of Chief McIntosh's account. She did not remember Chief McIntosh ever making any effort to engage C.B. in conversation. Beyond her initial statement that C.B. was a " runner" who had not taken his medication, she could not recall conveying any other information to the police until she was subsequently asked whether she wanted C.B. removed from the school grounds, to which she said yes. Specifically, she testified that she did not inform the police why she thought C.B. might run, what medications he was on, C.B.'s history, or what had transpired earlier that day. C.B. recalled Coach Sinclair telling Chief McIntosh only that he was a " runner."

Within a few minutes of Chief McIntosh's arrival, Officer Prock arrived. He testified that when he arrived, C.B. was sitting quietly, looking at the ground. Coach Sinclair also advised him that C.B. was a " runner," but Officer Prock did not learn that C.B. had not taken his medication until much later. Officer Prock tried to engage C.B. in conversation, but he remained unresponsive.

About three and a half minutes after Officer Prock arrived, Chief McIntosh signaled that Officer Prock should handcuff C.B. Officer Prock ordered C.B. to stand up, which he did immediately. He then instructed C.B. to put his hands behind his back--which C.B. again did immediately--and handcuffed him. Notwithstanding the fact that C.B. had not disobeyed a single police order, the officers did not explore alternative options for handling the situation before handcuffing him. When Officer Prock handcuffed C.B., C.B. began to cry, believing that he was being taken to jail.

Once C.B. was handcuffed, the officers and Coach Sinclair escorted him off the playground. Officer Prock then pulled his

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police vehicle around and directed C.B.--still in handcuffs--into the back seat. C.B. complied immediately. During this entire time, no one spoke to C.B. or explained to him why he had been handcuffed, that he was not under arrest, or where the police were taking him. Officer Prock then transported C.B. to his uncle's business.[1] Although Officer Prock's vehicle was equipped with safety locks, making it impossible for C.B. to escape, C.B. remained handcuffed during the approximately thirty-minute ride to his uncle's place of business. C.B. testified that the handcuffs caused him pain and left red marks.

Coach Sinclair, who was also the school disciplinarian, testified that in the three years before this incident, she had summoned police to Sonora Elementary School about fifty times. Of those fifty times, police used handcuffs about twenty times, even though about thirteen of those twenty instances did not involve any known or suspected criminal activity. When Officer Prock was handcuffing C.B., Coach Sinclair asked whether the handcuffs were " really necessary," to which one of the officers replied that it was " procedure." [2] She further testified that she knew this was the police department's procedure because, in her experience, " any time that the police have to take a child off of campus, whether it be medical, drugs, fight, the child is handcuffed." Officer Prock also testified that he understood the police department's policy to permit officers to handcuff any individual they were transporting in the back of a police vehicle.

Following this incident, C.B. experienced a host of psychological and emotional problems, including difficulty sleeping, low self-esteem, anger, irritability, and depression.


C.B. filed this action against the Sonora School District, Coach Sinclair, the City of Sonora, Sonora Chief of Police McIntosh, and Officer Prock, alleging violations of his Fourth Amendment rights, the Americans with Disabilities Act, the Rehabilitation Act, and a number of state law tort claims. C.B. settled his claims against the Sonora School District and Coach Sinclair. After the district court denied Defendants' motion for summary judgment on the basis of, inter alia, qualified immunity, the case proceeded to trial against the City of Sonora, Chief McIntosh, and Officer Prock on the following claims: unlawful seizure and excessive force in violation of the Fourth Amendment under 42 U.S.C. § 1983 and false arrest and intentional infliction of emotional distress (" IIED" ) under state law.

On the sixth day of trial, the jury returned its first verdict, determining that: (1) Defendants were not liable for either § 1983 claim; (2) C.B. had proved that Chief McIntosh's and Officer Prock's conduct intentionally caused him emotional distress, and C.B. suffered harm as a result; (3) Chief McIntosh and Officer Prock had established privilege, an affirmative defense to the IIED claim; and (4) C.B. was entitled to damages on the IIED claim. The verdict form also left unanswered the verdict on the false arrest claim. Realizing that the verdict on the IIED claim was internally inconsistent, the district court proposed resubmitting the

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case to the jury with clarifying instructions. Specifically, the court recommended explaining to the jury that: (1) if it were to find the affirmative defense of privilege, it could not award damages for IIED; (2) Question 11C, rather than Question 11D, corresponded to the IIED damages; and (3) it must answer the question about false arrest. Counsel for both sides agreed.

The court next addressed the jury, explaining that the verdict contained " an inconsistency" and instructing the jury that " [i]f you don't find the [affirmative defense of] privilege, then you can award damages, but you can't award damages if you find that the conduct is privileged." The court also noted a typographical error on page 9 of the verdict form regarding where the jury was to record damages, if any, for IIED, and directed the jury that it needed to respond to the question about false arrest.[3] After this instruction, the jury again began deliberating.

Not long thereafter, the jury sent the judge the following written question:

Clarify question 8
if we said yes to all on page 23 of Jury Instruction #20 doesn't that mean we answer yes to page 9 in verdicts of trial jury?

Jury Instruction 20 set out the elements of the affirmative defense of privilege to the IIED claim, and Question 8 on page 9 on the verdict form asked for the jury's verdict on whether the officers' conduct was privileged. At a conference with counsel, the court proposed answering the question in the affirmative. Counsel for Defendants requested that the court also explain again that if the jury were to find privilege, it must move on to the next claim and not award damages for IIED, which the court agreed to do.

When the jury returned to the courtroom, the court described the framework for IIED claims. The court first explained C.B.'s case-in-chief. Then, it discussed the three elements of the affirmative defense of privilege, as set out in Jury Instruction 20, stating that " if you find yes as to all of those three things, in light of the elements of the intentional infliction of emotional distress, that is called a complete defense and it eliminates liability for damages." Turning specifically to the jury's question, the court further explained, " so your inquiry here on question number . . . 8, which is the affirmative defense[,] is have the defendants proved the things that are required to be proved on page 23, which is jury instruction 20, the privilege defense." Having clarified that Question 8 on the verdict form corresponded to Jury Instruction 20, the court again discussed the relationship between a finding of privilege and damages. Finally, the court reminded the jury that it needed to answer the question about false arrest, and indicated that it would provide a new page 11 of the verdict form because of a second typographical error.[4]

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The jury then asked a follow-up question while it was still in the courtroom.

JUROR SEAT NUMBER EIGHT: Okay. So the fact that we answered affirmative yes to questions 6 and 7.
JUROR SEAT NUMBER EIGHT: I guess our question is how does that affect our response to number 8? Is it conflicting?

Questions 6 and 7 asked whether C.B. had met his burden of proof on the elements of IIED. The jury was essentially asking whether it could find that C.B. proved his case-in-chief and still find that Defendants proved their affirmative defense.

The court responded by again explaining the framework for IIED claims. Noting that the jury had effectively found that C.B. met his burden of proving liability, the court explained that " then the question becomes is there an award of damages." The court went on: " However, under the law, the defendants are entitled to assert what is called an affirmative defense. And an affirmative defense has the legal effect of negating the finding of liability." While not the most direct response, this statement informed the jury that it could, in fact, answer yes to Questions 6 and 7 and still find privilege. The court again set out the elements of privilege, concluding by telling the jury that " [i]f you find those things, then that negates, if you will, the intentional infliction of the emotional distress."

Juror Number 8, apparently still confused, asked, " [a]nd that is not a conflict?" To this, the court responded:

It's not a conflict because it's an affirmative defense. It's potentially a conflict depending on what you think of the conduct and the states of mind. But that's for you to determine. In other words, you have to decide what -- what was being thought, what was observed and what was being done under the totality of the circumstances, recognizing what the law is that tells the officers what they can and can't do in dealing with the plaintiff.
Remember, this is measured objectively by what a reasonable officer in the position of the two defendants would do knowing everything that they knew on the scene with what was happening there. It's an objective standard.
And this, particularly, examines their conduct in light of the law, in light of what they knew and what they, in good faith, believed and what they did. And so, there is a potential inconsistency, but that depends on what you find the intentions, the states of mind are and the conduct is in light of the law. And you're the only people who can make those decisions. We cannot tell you how to do it. The ...

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