In Morales v. Fry, published October 16, 2017, a divided panel of the 9th Circuit Court of Appeals reversed in part and affirmed in part a judgment after jury trial in a 42 U.S.C. section 1983 suit against two police officers. During a protest, Officer Rees put his hand on the plaintiff's shoulder to get her attention. The plaintiff pulled her arm away abruptly and told the officer not to touch her. Officer Rees lost sight of the plaintiff. Later, the plaintiff turned Officer Fry's bicycle handlebar so that she could pass through a tight spot. Officer Fry testified that she felt what she perceived to be a punch to her chest. She believed the plaintiff had punched her. She yanked the plaintiff headlong over the bike, causing the plaintiff to fall on her back on top of other bikes. Multiple officers converged on the plaintiff while she was down. When the plaintiff started to stand up, Officer Rees, who had not been involved in the altercation, sprayed pepper spray into the plaintiff's eyes. The plaintiff was arrested and charged with the blow that Officer Fry perceived. The charges were later dismissed. The plaintiff sued both officers. The district court denied summary judgment, based on factual disputes about what happened in the plaintiff's encounters with the officers. At the close of evidence, the district court denied the officers' motion for a directed verdict. The court's instructions to the jury included asking them whether the officers reasonably believed that their actions (Fry's arrest of the plaintiff and the officers' use of force) was lawful. The jury found for the plaintiff on her excessive force claim against Officer Rees, but not on her excessive force and unlawful arrest claims against Officer Fry. The plaintiff obtained nominal damages and attorney fees against Officer Rees. Both sides appealed the judgment.
The majority decision reversed the judgment against the plaintiff concerning Officer Fry. Rejecting previous 9th Circuit decisions as contrary to U.S. Supreme Court law, and following the majority of circuits, the majority concluded that the prong of qualified immunity that asks whether an officer violated clearly-established law is an issue for the court, not the jury, to decide. By asking whether the officers reasonably believed they were violating the law, the court was asking the jury to decide whether the officers violated clearly-established law. The error was not prejudicial, because the special verdict asked the jury whether the officer violated the plaintiff's constitutional rights regarding arrest and excessive force, and the jury answered, "no." The verdict did not reveal whether the jury based its decision on the clearly-established prong of qualified immunity. The district court should have the jury resolve the factual issues, and then decide as a matter of law whether the officers violated clearly established law. The district court may either submit interrogatories to the jury, to ask them to resolve the factual issues, or use a general verdict and then resolve all factual disputes in favor of the prevailing party. The error was harmless as to Officer Rees, and the district court properly denied his motion for JNOV. The jury could have determined that he used pepper spray in retaliation, rather than as a reasonable use of force, and such a use would violate clearly-established law.
The dissenting judge opined that the jury instructions were proper, and that the plaintiff failed to preserve her claim that they were erroneous.
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