throbber
APPENDIX
`
`

`

` i
`
`APPENDIX
`
`TABLE OF CONTENTS
`
`Appendix A Opinion in the United States Court of
`Appeals for the Ninth Circuit
`(August 29, 2017) . . . . . . . . . . . . . App. 1
`
`Appendix B Order Re: Pending Motions in the
`United States District Court Central
`District of California
`(September 8, 2015) . . . . . . . . . . App. 16
`
`Appendix C Final Judgment Regarding Defendant
`Deputy Freddy Padilla in the United
`States District Court Central District
`of California
`(December 22, 2014)
`
`. . . . . . . . . App. 48
`
`Appendix D Order Denying Petition for Panel
`Rehearing in the United States Court
`of Appeals for the Ninth Circuit
`(December 4, 2017)
`. . . . . . . . . . App. 52
`
`

`

`App. 1
`
`
`
`APPENDIX A
`
`
`FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`No. 15-56548
`
`D.C. No. 2:11-cv-08110-FMO-FFM
`
`[Filed August 29, 2017]
`________________________________
`)
`JAY RUSSELL SHAFER,
`Plaintiff-Appellee, )
`)
`
`v.
`
`))
`
`)
`FREDDY PADILLA, No. 2465,
`individually and as a peace officer, )
`Defendant-Appellant. )
`________________________________ )
`
`OPINION
`
`)
`COUNTY OF SANTA BARBARA;
`)
`BILL BROWN, individually and
`)
`as Sheriff of Santa Barbara
`)
`County; SANTA BARBARA
`)
`SHERIFF’S DEPARTMENT,
`Defendants, )
`)
`
`and
`
`))
`
`

`

`App. 2
`
`Appeal from the United States District Court
`for the Central District of California
`Fernando M. Olguin, District Judge, Presiding
`
`Argued and Submitted April 6, 2017
`Pasadena, California
`
`Filed August 29, 2017
`
`Before: Milan D. Smith, Jr. and N. Randy Smith,
`Circuit Judges, and Gary Feinerman.*
`
`Opinion by Judge N.R. Smith
`
`SUMMARY**
`
`Civil Rights
`
`The panel reversed a jury verdict and vacated
`damage awards in favor of the plaintiff in an action
`brought under 42 U.S.C. § 1983 alleging that a police
`officer used excessive force when he used a leg sweep
`maneuver to take down the plaintiff after he refused to
`comply with the officer’s orders to drop the water
`balloons he was carrying.
`
`The panel held that viewing all of the facts in the
`light most favorable to the jury’s verdict, there was
`sufficient evidence to support the jury’s finding that the
`force used by the officer was excessive. The panel
`
`* The Honorable Gary Feinerman for the Northern District of
`Illinois, sitting by designation.
`
`** This summary constitutes no part of the opinion of the court. It
`has been prepared by court staff for the convenience of the reader.
`
`

`

`App. 3
`
`nevertheless held that the officer was entitled to
`qualified immunity because, at the time the incident
`occurred, the law was not clearly established that an
`officer cannot progressively increase his use of force
`from verbal commands, to an arm grab, and then a leg
`sweep maneuver when a misdemeanant refuses to
`comply with the officer’s orders and resists, obstructs,
`or delays the officer in his lawful performance of duties
`such that the officer has probable cause to arrest him
`in a challenging environment.
`
`COUNSEL
`
`Mary Pat Barry (argued), Senior Deputy; Michael C.
`Ghizzoni, County Counsel; Office of County Counsel,
`Santa Barbara, California; for Defendant-Appellant.
`
`Steven B. Stevens (argued), Los Angeles, California;
`Thomas E. Beck, The Beck Law Firm, Los Alamitos,
`California; for Plaintiff-Appellee.
`
`OPINION
`
`N.R. SMITH, Circuit Judge:
`
`College student Jay Russell Shafer refused to drop
`water balloons at the request of Santa Barbara
`Sheriff’s Deputy Freddy Padilla. Deputy Padilla then
`used a leg sweep maneuver to take down and arrest
`Shafer. Shafer sued Deputy Padilla, asserting
`violations of his constitutional rights under 42 U.S.C.
`§ 1983. Deputy Padilla asserted the defense of qualified
`immunity.
`
`The jury found that Deputy Padilla violated Shafer’s
`Fourth Amendment constitutional right to be free from
`
`

`

`App. 4
`
`excessive force. The evidence adduced at trial was
`sufficient to sustain the jury’s verdict. However,
`Deputy Padilla is entitled to qualified immunity,
`because, at the time this incident occurred, the law was
`not clearly established that an officer cannot
`progressively increase his use of force from verbal
`commands, to an arm grab, and then a leg sweep
`maneuver when a misdemeanant refuses to comply
`with the officer’s orders and resists, obstructs, or delays
`the officer in his lawful performance of duties such that
`the officer has probable cause to arrest him in a
`challenging environment.
`
`I. BACKGROUND
`
`Students from the University of California, Santa
`Barbara (“UCSB”) commonly congregate on Del Playa
`Drive, a street near the university campus. On October
`4, 2009, hundreds to thousands of intoxicated students
`congregated on Del Playa Drive. There was loud music
`playing, and students were yelling, screaming, and
`running around.
`
`Deputy Padilla and Sheriff’s Deputy Todd LeFemine
`were on patrol that night on Del Playa Drive. Shortly
`after midnight, four students approached the deputies
`and said that they had just been hit with water
`balloons. This complaint caused Deputy Padilla
`concern, because water balloons had been a serious
`problem on Del Playa Drive and could cause injuries or
`start fights. Within one minute of hearing this report,
`Deputy Padilla identified two males—Shafer and his
`friend Domenico Gianola—walking with water balloons
`in their hands. The deputies approached Shafer and
`Gianola, and Deputy Padilla ordered them to drop the
`balloons. Gianola dropped his balloons, but Shafer did
`
`

`

`App. 5
`
`not. Instead, Shafer asked Deputy Padilla three or four
`times why he could not hold the balloons. Deputy
`Padilla continued to order Shafer to drop the balloons
`but did not answer Shafer’s questions.
`
`What happened next is disputed. According to
`Shafer, Deputy Padilla aggressively grabbed him by
`the arm and pulled him toward the curb. Shafer
`attempted to maintain his footing, but Deputy Padilla
`swung him toward the sidewalk. Shafer never tried to
`break free of Deputy Padilla’s hold and never resisted
`Deputy Padilla. Once Deputy Padilla and Shafer
`reached the sidewalk, Deputy LeFemine grabbed
`Shafer’s other arm. Deputy Padilla kicked Shafer’s feet
`out from under him, and Shafer fell face first onto the
`pavement. The officers piled on top of him.1 Shafer felt
`a knee go into his back and a boot push his head into
`the pavement. One of the officers handcuffed Shafer.
`The deputies pulled Shafer to his feet and informed
`him that he was going to jail. Shafer received a minor
`abrasion on his face and a bruise on his back as a
`result of the takedown.
`
`Deputy Padilla’s version of the events is much
`different. He testified that after Shafer refused to drop
`the water balloons, Shafer attempted to walk past him.
`Deputy Padilla grabbed Shafer’s arm and escorted him
`approximately ten feet to the curb. Shafer resisted
`Deputy Padilla’s grasp by pulling his arm away from
`Deputy Padilla. When they got to the curb, Deputy
`Padilla guided Shafer to sit on the curb by applying
`pressure to Shafer’s arms. Once Shafer sat on the curb,
`
`1 Shafer testified that four officers were involved in the takedown,
`but could not identify any of the officers except Deputy Padilla.
`
`

`

`App. 6
`
`Deputy Padilla let go of Shafer. Instantly, Shafer
`attempted to stand up and run away from Deputy
`Padilla. Deputy Padilla quickly reached out and
`grabbed Shafer. Deputy LeFemine, who was on
`Shafer’s other side, also reached out and grabbed
`Shafer. The momentum took Shafer, Deputy Padilla,
`and Deputy LeFemine to the ground. Shafer put his
`hands underneath his body and continued to try to get
`up. In an attempt to control Shafer, Deputy Padilla
`applied body weight pressure between Shafer’s torso
`and legs. Two UCSB campus officers, Jeff Lupo and
`Christina Rauchhaus, witnessed this struggle and ran
`from the other side of the street to provide assistance.
`To control Shafer, Officer Raucchaus put her knee into
`Shafer’s back and handcuffed him, and Officer Lupo
`applied pressure to Shafer’s legs. After one of the
`officers handcuffed Shafer, they quickly pulled him off
`the ground. Deputy Padilla told Shafer that he was
`going to jail.
`
`Trial testimony from the other witnesses varied
`slightly. However, the testimony was generally
`consistent that Deputy Padilla used a leg sweep
`maneuver to take down Shafer and Shafer resisted
`Deputy Padilla.
`
`II. PROCEDURAL HISTORY
`
`Shafer filed suit against Defendants pursuant to 42
`U.S.C. § 1983. The district court dismissed all of the
`Defendants from the suit except for Deputy Padilla.
`Before trial, Deputy Padilla filed, and the district court
`denied, a motion for qualified immunity. Shafer
`proceeded to trial on his claims against Deputy Padilla
`for
`(1)
`false arrest;
`(2) malicious prosecution;
`(3) violation of his First Amendment rights; and
`
`

`

`App. 7
`
`(4) violation of his Fourth Amendment rights. Before
`the jury’s deliberation, Deputy Padilla filed a motion
`for judgment as a matter of law pursuant to Rule 50 of
`the Federal Rules of Civil Procedure. The district court
`denied the motion.
`
`The jury exonerated Deputy Padilla on every claim
`except the Fourth Amendment claim for using
`excessive force. Specifically, the jury found that Deputy
`Padilla had probable cause to arrest Shafer for
`violations of California Penal Code section 148. The
`jury also found that Shafer’s speech was not a
`substantial or motivating factor for Deputy Padilla’s
`actions against Shafer and that Deputy Padilla did not
`maliciously prosecute Shafer. As to Shafer’s Fourth
`Amendment claim, the jury found that Deputy Padilla
`used excessive force against Shafer and that Deputy
`Padilla “acted with malice, oppression, or in reckless
`disregard” of Shafer’s rights. The jury awarded Shafer
`$45,000 in economic damages and $75,000 in non-
`economic damages, but did not award punitive
`damages.
`
`Deputy Padilla renewed his motion for judgment as
`a matter of law based on qualified immunity or, in the
`alternative, insufficient evidence of excessive force. He
`moved in the alternative for a new trial. Deputy Padilla
`also argued the district court erred by admitting
`prejudicial evidence.2 The district court denied the
`motions, and Deputy Padilla now appeals those
`decisions.
`
`2 Because we hold Deputy Padilla is entitled to qualified immunity,
`we need not determine whether the district court erred by
`admitting prejudicial evidence.
`
`

`

`App. 8
`
`III. DISCUSSION
`
`We review de novo a district court’s qualified
`immunity determination denying judgment as a matter
`of law. C.B. v. City of Sonora, 769 F.3d 1005, 1022 (9th
`Cir. 2014). “In doing so, we ‘view all evidence in the
`light most favorable to the nonmoving party, draw all
`reasonable inferences in favor of the non-mover, and
`disregard all evidence favorable to the moving party
`that the jury is not required to believe.’” Id. (quoting
`Harper v. City of Los Angeles, 533 F.3d 1010, 1021 (9th
`Cir. 2008)). A motion for judgment as matter of law
`may be granted if “the court finds that a reasonable
`jury would not have a legally sufficient evidentiary
`basis to find for the party on that issue,” Fed. R. Civ. P.
`50(a)(1), that is, “if, under the governing law, there can
`be but one reasonable conclusion as to the verdict,”
`Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
`(1986). Conversely, “[i]f reasonable minds could differ
`as to the import of the evidence,” the motion should be
`denied. Id. at 250–51. Because this appeal comes after
`the jury’s verdict, we must “construe the facts in the
`light most favorable to the jury’s verdict.” Castro v. Cty.
`of Los Angeles, 833 F.3d 1060, 1064 n.1 (9th Cir. 2016);
`Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236,
`1245 (9th Cir. 2014). In this case, the jury’s verdict was
`split. Thus, we draw all factual inferences and resolve
`all issues of credibility in favor of the jury’s findings
`that Deputy Padilla had probable cause to arrest
`Shafer for resisting, delaying, or obstructing Deputy
`Padilla; that Shafer’s protected speech was not a
`substantial or motivating factor for Deputy Padilla’s
`actions; that Deputy Padilla did not maliciously
`prosecute Shafer; and that Deputy Padilla used
`excessive force against Shafer.
`
`

`

`App. 9
`
`Qualified immunity affords limited protection to
`public officials faced with liability under 42 U.S.C.
`§ 1983, “‘insofar as their conduct does not violate
`clearly established statutory or constitutional rights of
`which a reasonable person would have known.’”
`Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting
`Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). To
`determine whether qualified immunity applies in a
`given case, we must determine: (1) whether a public
`official has violated a plaintiff’s constitutionally
`protected right; and (2) whether the particular right
`that the official has violated was clearly established at
`the time of the violation. Kirkpatrick v. Cty. of Washoe,
`843 F.3d 784, 788 (9th Cir. 2016) (en banc). These two
`prongs of the analysis need not be considered in any
`particular order, and both prongs must be satisfied for
`a plaintiff to overcome a qualified immunity defense.
`See Pearson, 555 U.S. at 236. We now examine both
`prongs of the analysis to determine whether Deputy
`Padilla is entitled to qualified immunity.
`
`A. Prong One: Constitutional Violation
`
`The first prong under the qualified immunity test
`determines whether Deputy Padilla violated Shafer’s
`constitutional right. The jury found that Deputy
`Padilla violated Shafer’s Fourth Amendment right to
`be free from excessive force. Deputy Padilla challenges
`the sufficiency of the jury’s verdict as to this claim.
`
`Excessive force claims are founded on the Fourth
`Amendment right to be free from unreasonable
`seizures of the person. See U.S. Const. amend. IV;
`Graham v. Connor, 490 U.S. 386, 394–95 (1989). The
`Fourth Amendment is implicated where an officer
`exceeds the bounds of reasonable force in effecting “an
`
`

`

`App. 10
`
`arrest, investigatory stop, or other seizure.” Graham,
`490 U.S. at 395–96. We analyze excessive force claims
`according to the constitutional touchstone of objective
`reasonableness, so we do not consider an officer’s
`subjective “intent or motivation.” Id. at 397. Instead,
`“the question is whether the officers’ actions are
`‘objectively reasonable’ in light of the facts and
`circumstances confronting them, without regard to
`their underlying intent or motivation.” Id. This
`determination requires us to balance the “nature and
`quality of the intrusion on the individual’s Fourth
`Amendment interests against the countervailing
`governmental interests at stake.” Id. at 396 (quotation
`marks and citations omitted). To do this, we weigh
`three non-exclusive factors: (1) “the severity of the
`crime at issue,” (2) “whether the suspect poses an
`immediate threat to the safety of the officers or others,”
`and (3) “whether [the suspect] is actively resisting
`arrest or attempting to evade arrest by flight.” Id. We
`judge the reasonableness of the force “from the
`perspective of a reasonable officer on the scene, rather
`than with the 20/20 vision of hindsight,” id. at 396,
`because “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,” id. at 397.
`
`We consider each of the Graham factors in turn to
`assess whether a reasonable jury could have found
`Deputy Padilla’s conduct to be excessive under the
`circumstances that he faced. As to the severity of the
`crime involved, Deputy Padilla initiated contact with
`Shafer based on a report that someone had thrown
`water balloons at four individuals. Approximately one
`minute later, Deputy Padilla saw Shafer walking with
`
`

`

`App. 11
`
`water balloons in his hands. Deputy Padilla argues
`that, based on this information, Shafer was suspected
`of committing a battery, which is a crime of violence.
`Deputy Padilla eventually arrested Shafer for resisting,
`obstructing, or delaying a peace officer. See Cal. Penal
`Code § 148. Although Deputy Padilla was entitled to
`use some degree of force in executing Shafer’s arrest,
`Graham, 490 U.S. at 396, the jury could conclude,
`based on the fact that Shafer was suspected of
`committing only a misdemeanor, that Deputy Padilla’s
`leg sweep maneuver was excessive under the
`circumstances.
`
`As to the threat Shafer posed, he never made any
`verbal threats toward Deputy Padilla. Shafer was
`noncompliant in following Deputy Padilla’s orders and
`he did resist, obstruct, or delay Deputy Padilla when
`Deputy Padilla lawfully arrested Shafer. In light of the
`surrounding circumstances, Shafer’s actions presented
`some threat to Deputy Padilla. However, the jury could
`conclude (based on Shafer’s testimony) that Shafer did
`not say anything threatening to Deputy Padilla, and
`that any threat perceived by Deputy Padilla was not
`“immediate” or significant enough to justify a leg sweep
`maneuver.
`
`As to whether Shafer was actively resisting arrest
`or attempting to evade arrest by flight, the jury’s
`verdict on probable cause to arrest under California
`Penal Code section 148 makes clear that Shafer
`willfully resisted, obstructed, or delayed Deputy Padilla
`during his execution of Shafer’s arrest.
`
`Viewing all of the facts in the light most favorable
`to the jury’s verdict, there is sufficient evidence to
`support the jury’s verdict that the force used by Deputy
`
`

`

`App. 12
`
`Padilla was excessive. The evidence presented was far
`from “one-sided,” Anderson, 477 U.S. at 252, and did
`not give rise to “but one reasonable conclusion as to the
`verdict,” id. at 250.
`
`B. Prong Two: Clearly Established Law
`
`Deputy Padilla may nonetheless be entitled to a
`qualified
`immunity defense
`if Shafer’s Fourth
`Amendment rights were not clearly established at the
`time Deputy Padilla committed the violation. White v.
`Pauly, 137 S. Ct. 548, 551 (2017) (per curiam); Ashcroft
`v. al-Kidd, 563 U.S. 731, 735 (2011). For a right to be
`clearly established, case law must ordinarily have been
`earlier developed in such a concrete and factually
`defined context to make it obvious to all reasonable
`government actors, in the defendant’s place, that what
`he is doing violates federal law. See White, 137 S. Ct. at
`551 (explaining that “existing precedent must have
`placed the statutory or constitutional question beyond
`debate . . .[because] immunity protects all but the
`plainly incompetent or those who knowingly violate the
`law” (internal quotation marks and citation omitted));
`Dunn v. Castro, 621 F.3d 1196, 1199–1200 (9th Cir.
`2010).
`
`this
`into whether
`inquiry
`We begin our
`constitutional violation was clearly established by
`defining the law at issue in a concrete, particularized
`manner. See White, 137 S. Ct. at 552; al-Kidd, 563 U.S.
`at 743 (noting the Supreme Court has repeatedly
`warned lower courts “not to define clearly established
`law at a high level of generality”). We consider this
`question in light of the jury’s findings that Deputy
`Padilla had probable cause to arrest Shafer for
`resisting, obstructing, or delaying arrest; that Shafer’s
`
`

`

`App. 13
`
`protected speech was not a substantial or motivating
`factor for Deputy Padilla’s actions; that Deputy Padilla
`did not maliciously prosecute Shafer; and that Deputy
`Padilla used excessive force against Shafer. Defined at
`an appropriate level of specificity, the question at hand
`is whether an officer violates clearly established law
`when he progressively increases his use of force from
`verbal commands, to an arm grab, and then a leg sweep
`maneuver, when a misdemeanant refuses to comply
`with the officer’s orders and resists, obstructs, or delays
`the officer in his lawful performance of duties such that
`the officer has probable cause to arrest him in a
`challenging environment. The answer is no.
`
`the Supreme Court’s
`We are mindful of
`pronouncement in White v. Pauly that, to satisfy this
`step in the qualified immunity analysis, we generally
`must “identify a case where an officer acting under
`similar circumstances as [Deputy Padilla] was held to
`have violated the Fourth Amendment.”3 137 S. Ct. at
`
`3 There is prior precedent establishing that, in a sufficiently
`“obvious” case of constitutional misconduct, we do not require a
`precise factual analogue in our judicial precedents. Brosseau v.
`Haugen, 543 U.S. 194, 199 (2004) (per curiam) (“[I]n an obvious
`case, [highly generalized] standards can ‘clearly establish’ the
`answer, even without a body of relevant case law.”); United States
`v. Lanier, 520 U.S. 259, 271 (1997) (“[I]n [some] instances a
`general constitutional rule already identified in the decisional law
`may apply with obvious clarity to the specific conduct in question,
`even though the very action in question has not previously been
`held unlawful.” (internal quotation marks, alteration, and citation
`omitted)). However, “the bar for finding such obviousness is quite
`high,” Mattos v. Agarano, 661 F.3d 433, 442 (9th Cir. 2011), and,
`because Shafer does not argue that this exception applies, we do
`not address it.
`
`

`

`App. 14
`
`552. We are aware of no such case. Shafer cites four
`cases with comparable degrees of force used by officers,
`but none of which involved a challenging environment
`or an act of physical resistance or obstruction by the
`arrestee. See Meredith v. Erath, 342 F.3d 1057, 1061
`(9th Cir. 2003); Wall v. Cty. of Orange, 364 F.3d 1107,
`1111–12 (9th Cir. 2004); Hansen v. Black, 885 F.2d 642,
`645 (9th Cir. 1989); Blankenhorn v. City of Orange, 485
`F.3d 463, 478–79 (9th Cir. 2007). Shafer also cites two
`cases where officers used more force than Deputy
`Padilla used. See Bryan v. MacPherson, 630 F.3d 805,
`832–33 (9th Cir. 2010); Lolli v. Cty. of Orange, 351 F.3d
`410, 416 (9th Cir. 2003). Although we do not require a
`case to be “on all fours,” Deorle v. Rutherford, 272 F.3d
`1272, 1286 (9th Cir. 2001), “[w]e cannot conclude . . . in
`light of these existing precedents, that
`‘every
`reasonable official would have understood . . . beyond
`debate,’” Mattos, 661 F.3d at 448 (quoting al-Kidd, 563
`U.S. at 741), that Deputy Padilla’s conduct in these
`circumstances constituted excessive force based on the
`cases cited by Shafer. In these cases, where there is a
`“hazy border between excessive and acceptable force,”
`Brosseau v. Haugen, 543 U.S. 194, 201 (2004) (per
`curiam) (quoting Saucier v. Katz, 533 U.S. 194, 206
`(2001)), such
`that
`the officer
`“reasonably
`misapprehends the law governing the circumstances
`[]he confronted,” qualified immunity protects officers.
`Id. at 198.
`
`Shafer’s primary argument on appeal is that Deputy
`Padilla violated clearly established law, because he had
`no basis for using any force whatsoever. We disagree.
`The jury found that Deputy Padilla had probable cause
`to arrest Shafer for violations of California Penal Code
`section 148 for resisting, delaying, or obstructing an
`
`

`

`App. 15
`
`officer. This entitled Deputy Padilla to use some degree
`of force. See Graham, 490 U.S. at 396 (“[T]he right to
`make an arrest . . . necessarily carries with it the right
`to use some degree of physical coercion . . . .”).
`
`Finally, Shafer argues that it is Deputy Padilla’s
`burden to demonstrate that he did not violate Shafer’s
`clearly established constitutional right. Again, we
`disagree. It is the plaintiff who “bears the burden of
`showing that the rights allegedly violated were ‘clearly
`established.’” See, e.g., LSO, Ltd. v. Stroh, 205 F.3d
`1146, 1157 (9th Cir. 2000).
`
`Because Shafer fails to identify sufficiently specific
`constitutional precedents to alert Deputy Padilla that
`his particular conduct was unlawful, Deputy Padilla is
`entitled to qualified immunity.
`
`Since we reverse and vacate the jury verdict and
`damages awards, the parties shall bear their own costs
`associated with this appeal.
`
`REVERSED, JURY VERDICT AND DAMAGES
`AWARDS VACATED.
`
`

`

`App. 16
`
`
`
`APPENDIX B
`
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`CIVIL MINUTES - GENERAL
`
`Case
`No.
`
`Title
`
`CV 11-8110 FMO
` Date September 8, 2015
`(FFMx)
`Jay Russell Shafer v. County of Santa
`Barbara, et al.
`
`Present: The Honorable Fernando M. Olguin, United
`States District Judge
`
`Vanessa Figueroa
`Deputy Clerk
`
`Lisa Gonzalez
`Court Reporter /
`Recorder
`
`None
`Tape No.
`
`Attorney Present for
`Plaintiff:
`
`Attorney Present for
`Defendant:
`
`Proceedings:
`
`(In Chambers) Order Re: Pending
`Motions
`
`Having reviewed and considered all the briefing
`filed with respect to defendant Deputy Freddy Padilla’s
`Renewed Motion for Judgment as a Matter of Law and
`Alternative Motion for a New Trial (“Motion”), and
`plaintiff Jay Russell Shafer’s Motion for Attorney’s
`Fees, the court concludes that oral argument is not
`necessary to resolve the motions. See Fed. R. Civ. P. 78;
`
`

`

`App. 17
`
`Local Rule 7-15; Willis v. Pac. Mar. Ass’n, 244 F.3d
`675, 684 n. 2 (9th Cir. 2001).
`
`INTRODUCTION
`
`Plaintiff Jay Russell Shafer’s (“plaintiff” or “Shafer”)
`case arises from an arrest on Del Playa Drive near the
`University of California, Santa Barbara (“UCSB”). (See
`Reporter’s Transcript (“RT”), Dec. 9, 2014, at 9-10, 15
`& 112; RT, Dec. 10, 2014, at 180). Shafer, who was a
`student at UCSB, was walking along Del Playa Drive
`with several friends shortly after midnight on October
`4, 2009. (See RT, Dec. 12, 2014, at 138-40). Plaintiff
`and one of his friends, Domenico Gianola (“Gianola”),
`had water balloons in their hands. (See id. at 138-41;
`RT, Dec. 10, 2014, at 180-84). Deputy Freddy Padilla
`(“Padilla” or “defendant”), who was on patrol,
`approached plaintiff’s group, and ordered plaintiff and
`Gianola to drop the water balloons. (See RT, Dec. 10,
`2014, at 183 & 206). Rather than dropping the
`balloons, Shafer asked Padilla something like, “Why
`can’t we have water balloons?” (See id. at 183-84). After
`repeating the exchange three or four times, Padilla
`said, “I’m not going to tell you again.” (See id. at 185).
`Padilla then grabbed Shafer by the arm, began to
`swing him and tried to kick Shafer’s feet out from
`under him. (See id. at 185-86). While Shafer tried to
`keep his balance, Padilla was in control of the action.
`(See id. at 186). Padilla kicked Shafer’s legs out
`multiple times. (See id. at 188). Additional police
`officers also came to help take Shafer to the ground.
`(See id.). Padilla proceeded to arrest Shafer for
`violating California Penal Code § 148. (See RT, Dec. 9,
`2014, at 54).
`
`

`

`App. 18
`
`Plaintiff filed suit pursuant to 42 U.S.C. § 1983, and
`went to trial against Padilla on his claims for:
`(1) excessive force; (2) violation of his First Amendment
`rights; (3) malicious prosecution; and (4) unreasonable
`seizure.1 (See Final Pretrial Conference Order at 5).
`The jury rendered a verdict in favor of Shafer on his
`excessive force claim, and found that Padilla “acted
`with malice, oppression, or in reckless disregard” of
`Shafer’s rights. (See Verdict Form at 2-3). The jury also
`found that Shafer did not prove by a preponderance of
`the evidence that Padilla arrested him without
`probable cause. (See id. at 2). Likewise, the jury found
`that Shafer did not prove by a preponderance of the
`evidence that Shafer’s protected speech was a
`“substantial or motivating factor” for Padilla’s actions
`against Shafer, or that Padilla maliciously prosecuted
`Shafer in violation of his civil rights. (See id.). As for
`remedies, the jury awarded $45,000 in economic
`damages, and $75,000 in non-economic damages. (See
`id. at 3). The jury did not award punitive damages. (See
`id.).
`
`PADILLA’S RENEWED MOTION FOR
`JUDGMENT AS A MATTER OF LAW
`
`I. LEGAL STANDARD.
`
`Federal Rule of Civil Procedure 50 permits a district
`court to grant judgment as a matter of law “when the
`evidence permits only one reasonable conclusion and
`the conclusion is contrary to that reached by the jury.”
`
`1 Before trial, Padilla filed a motion for summary judgment for
`qualified immunity, which the court denied. (See Court’s Order of
`December 9, 2014).
`
`

`

`App. 19
`
`Ostad v. Or. Health Scis. Univ., 327 F.3d 876, 881 (9th
`Cir. 2003). If there is substantial evidence to support
`the jury’s verdict, the court should deny a motion for
`judgment as a matter of law. See Wallace v. City of San
`Diego, 479 F.3d 616, 624 (9th Cir. 2007). “Substantial
`evidence is such relevant evidence as reasonable minds
`might accept as adequate to support a conclusion even
`if it is possible to draw two inconsistent conclusions
`from the evidence.” Maynard v. City of San Jose, 37
`F.3d 1396, 1404 (9th Cir. 1994). “[T]he court must not
`weigh the evidence, but should simply ask whether the
`plaintiff has presented sufficient evidence to support
`the jury’s conclusion.” Wallace, 479 F.3d at 624. The
`court must “view the evidence in the light most
`favorable to the nonmoving party . . . and draw all
`reasonable inferences in that party’s favor.” E.E.O.C. v.
`Go Daddy Software, Inc., 581 F.3d 951, 961 (9th Cir.
`2009) (internal modification marks omitted). Because
`a post-verdict Rule 50(b) motion is “a renewed motion,”
`it is “limited to the grounds asserted in the pre-
`deliberation Rule 50(a) motion.” Id.
`
`II. QUALIFIED IMMUNITY.
`
`Padilla asserts that he is entitled to qualified
`immunity, because there was no violation of “clearly
`established law,” as Shafer “actively physically
`resisted” Padilla. (See Motion at 10). Padilla further
`argues that even if there was a violation of plaintiff’s
`clearly established rights, that Padilla is entitled to
`qualified immunity due to reasonable mistake. (See id.
`at 16-17).
`
`“The doctrine of qualified immunity protects
`government officials ‘from liability for civil damages
`insofar as their conduct does not violate clearly
`
`

`

`App. 20
`
`established statutory or constitutional rights of which
`a reasonable person would have known.’” Pearson v.
`Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 815 (2009)
`(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102
`S.Ct. 2727, 2738 (1982)); Ortiz v. Jordan, 562 U.S. 180,
`182, 131 S. Ct. 884, 888 (2011). “Qualified immunity
`balances two important interests – the need to hold
`public officials accountable when they exercise power
`irresponsibly and the need to shield officials from
`harassment, distraction, and liability when they
`perform their duties reasonably.” Pearson, 555 U.S. at
`231, 129 S.Ct. at 815; see also V-1 Oil Co. v. Smith, 114
`F.3d 854, 857 (9th Cir. 1997) (“Through the application
`of the qualified immunity doctrine, public servants
`avoid ‘the general costs of subjecting officials to the
`risks of trial – distraction of officials from their
`governmental duties, inhibition of discretionary action,
`and deterrence of able people from public service.’”)
`(quoting Harlow, 457 U.S. at 816, 102 S.Ct. at 2737).
`“The protection of qualified
`immunity applies
`regardless of whether the government official’s error is
`a mistake of law, a mistake of fact, or a mistake based
`on mixed questions of law and fact.” Pearson, 555 U.S.
`at 231, 129 S.Ct. at 815 (internal quotation marks and
`citation omitted).
`
`To determine whether a government official is
`entitled to qualified immunity, the court conducts a
`two-part test. See Pearson, 555 U.S. at 232, 129 S.Ct.
`at 815. First, do the facts alleged show the official’s
`conduct violated a constitutional right? See id., 129
`S.Ct. at 815-16. Second, was the right “clearly
`
`

`

`App. 21
`
`established” at the time of the alleged misconduct.2 See
`id., 129 S.Ct. at 816. Courts may “exercise their sound
`discretion in deciding which of the two prongs of the
`qualified immunity analysis should be addressed first
`in light of the circumstances in the particular case at
`hand.” Id. at 236, 129 S.Ct. at 818.
`
`While qualified immunity is sometimes resolved
`before trial, once a trial has been conducted, “the
`availability of official immunity should be determined
`by the trial record, not the pleadings nor the summary
`judgment record.” Ortiz, 562 U.S. at 184, 131 S.Ct at
`889. Accordingly, post-trial, “the decisive question,
`ordinarily, is whether the evidence favoring the party
`seeking relief is legally sufficient to overcome the
`defense.” Id.
`
`A. Violation of a Constitutional Right.
`
`“The Fourth Amendment, which protects against
`excessive force in the course of an arrest, requires that
`we examine the objective reasonableness of a particular
`use of force to determine whether it was indeed
`excessive.” Gravelet-Blondin v. Shelton, 728 F.3d 1086,
`1090 (9th Cir. 2013), cert. denied, 134 S.Ct. 1292
`(2014). To determine whether the force used was
`reasonable, the court balances “the nature and quality
`
`2 “Clearly established law” includes decisions of the U.S. Supreme
`Court and controlling authority in defendant’s jurisdiction. See
`Boyd v. Benton Cnty., 374 F.3d 773, 781 (9th Cir. 2004) (explaining
`that sources of “clearly established law” include decisions of the
`Supreme Court and Ninth Circuit); see also Hope v. Pelzer, 536
`U.S. 730, 741-45, 122 S.Ct. 2508, 2516-18 (2002) (holding
`defendants’ c

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