Forrester v. City of San Diego

25 F.3d 804, 1994 WL 229845

Opinions

Opinion by Judge HALL; Dissent by Judge KLEINFELD.

Before: GIBSON,* HALL, and KLEINFELD, Circuit Judges.

CYNTHIA HOLCOMB HALL, Circuit Judge:

Anti-abortion demonstrators who were arrested for trespass and unlawful assembly appeal (1) the district court judgment that the City of San Diego’s policy regarding pain compliance arrest techniques was constitutional and (2) the jury verdict that San Diego’s police officers did not use excessive force in executing their arrests. Because sufficient evidence supported the jury verdict, we affirm without deciding whether the city’s policy authorized unreasonable uses of force.

I.

In March 1989, San Diego police became aware that Operation Rescue planned to stage several anti-abortion demonstrations in the city.¹ Cognizant of the protest tactics used by Operation Rescue members in other demonstrations, San Diego Police Chief Bur-green met with his staff to formulate a plan of action. After considering several options, Burgreen adopted a policy for dispersing and arresting demonstrators who trespassed on and blocked entrances to private medical clinics.

The policy provided for the police first to give the protesters an opportunity to avoid arrest by leaving the premises after a verbal warning. The police were then to arrest those who refused to leave and give them another opportunity to move voluntarily. Finally, the police were to remove the remaining demonstrators with “pain compliance techniques” involving the application of pain as necessary to coerce movement. The “pain compliance” policy provided for the police to use either “Orcutt Police Nonchakus” (OPNs) (two sticks of wood connected at one end by a cord, used to grip a demonstrator’s wrist) or direct physical contact (firm grip, wrist-and arm-twisting, and pressure point holds).

Although San Diego police officers generally have discretion either to use pain compliance or to drag and carry arrestees, Bur-green's policy absolutely prohibited officers from using the drag and carry method. Bur-green changed the existing rule in anticipation of the Operation Rescue protests for two reasons. First, he wanted to prevent the back injuries that multiple'dragging and carrying causes to police and arrestees. And, second, he wanted to maximize police control over the large crowds he anticipated.

In each of the three demonstrations at issue, protesters converged upon a medical building, blocking entrances, filling stairwells and corridors, and preventing employees and patients from entering. When police or property owners attempted to remove them, the demonstrators “passively” resisted by remaining seated, refusing to move, and refusing to bear weight. At the first demonstration, the initial police officers on the scene dragged and carried arrestees. However, after the arrival of the “pain compliance unit,” and in each subsequent demonstration, the officers implemented Burgreen’s policy and used only pain compliance techniques.

For each arrest, the officers warned the demonstrators that they would be subject to pain compliance measures if they did not move, that such measures would hurt, and that they could reduce the pain by standing up, eliminating the tension on their wrists and arms. The officers then forcibly moved the arrestees by tightening OPNs around their wrists until they stood up and walked. All arrestees complained of varying degrees of injury to their hands and arms, including bruises, a pinched nerve, and one broken wrist.

Several subsequently filed suit, claiming that the police violated the Fourth Amendment by using excessive force in executing the arrests and that San Diego’s pain compliance policy was unconstitutional. A magistrate judge found the policy to be constitutional and granted summary judgment in favor of the city. The judge, however, allowed the ease to proceed to the jury in order to determine whether any particular uses of force were unconstitutional. After viewing a videotape of the arrests, the jury concluded that none involved excessive force and returned a verdict for the city. After denying a JNOV motion, the court entered judgment on the verdict for the city and the demonstrators filed a timely appeal.

II.

The demonstrators first contend that evidence does not support the jury’s verdict. Keeping in mind that “[wjhether the amount of force used was reasonable is usually a question of fact to be determined by the jury,” Barlow v. Ground, 943 F.2d 1132, 1135 (9th Cir.1991), cert. denied, - U.S. -, 112 S.Ct. 2995, 120 L.Ed.2d 872 (1992), we review the jury’s verdict to determine “whether it is supported by substantial evidence, that is, such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,” Eberle v. City of Anaheim, 901 F.2d 814, 818 (9th Cir.1990) (internal quotation omitted).

A.

“[A]ll claims that law enforcement officers have used excessive force ... in the course of an arrest ... should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard.” Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989). E.g., Ward v. City of San Jose, 967 F.2d 280, 284 (9th Cir.1991).

Determining whether the force used to effect a particular seizure is “reasonable” under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.... [T]he “reasonableness” inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them.

Graham, 490 U.S. at 396-97, 109 S.Ct. at 1872 (internal quotations omitted). E.g., Barlow, 943 F.2d at 1135. “The question is not simply whether the force was necessary to accomplish a legitimate police objective; it is whether the force used was reasonable in light of all the relevant circumstances.” Hammer v. Gross, 932 F.2d 842, 846 (9th Cir.) (en banc), cert. denied, - U.S. -, 112 S.Ct. 582, 116 L.Ed.2d 607 (1991).²

B.

We think ample evidence supports the jury’s conclusion that the officers acted reasonably in using pain compliance techniques to arrest the demonstrators. In addition to hearing the testimony of numerous officers and demonstrators, the jury watched the entire videotape of the arrests (and watched excerpts on repeated occasions). As the district court noted, the videotape created an extensive evidentiary record: “Thanks to videotaped records of the actual events, plus the testimony of witnesses on both sides, the jury had more than a sufficient amount of evidence presented to them from which they could formulate their verdicts- The extensive use of video scenes of exactly what took place removed much argument and interpretation of the facts themselves.”³

The evidence satisfies the Graham inquiry of reasonableness. First,, the nature and quality of the intrusion upon the arrestees’ personal security was less significant than most claims of force. The police did not threaten or use deadly force and did not deliver physical blows or cuts. Rather, the force consisted only of physical pressure administered on the demonstrators’ limbs in increasing degrees, resulting in pain. Compare Eberle, 901 F.2d at 820 (reasonable as a matter of law to use a painful “finger control hold” to remove belligerent spectator from arena) with Hammer, 932 F.2d at 846 (unreasonable to forcibly extract blood against the will of arrestee who indicates a willingness to undergo alternative form of alcohol testing).

Second, the city clearly had a legitimate interest in quickly dispersing and removing lawbreakers with the least risk of injury to police and others. The arrestees were part of a group of more than 100 protesters operating in an organized and concerted effort to invade private property, obstruct business, and hinder law enforcement. Although many of these crimes were misdemeanors, the city’s interest in preventing their widespread . occurrence was significant: “[T]he wholesale commission of common state-law crimes creates dangers that are far from ordinary. Even in the context of political protest, persistent, organized, premeditated lawlessness menaces in a unique way the capacity of a State to maintain order and preserve the rights of its citizens.” Bray, - U.S. at -, 113 S.Ct. at 769 (Kennedy, J., concurring). The city had a substantial interest in preventing the organized lawlessness conducted by the plaintiffs in this case, and the police were also justifiably concerned about the risk of injury to, the medical staff, patients of the clinic, and other protesters. Id. at -, 113 S.Ct. at 780 (O’Connor, J., dissenting).

Despite these governmental interests, the demonstrators argue that dragging and carrying was a more reasonable means of accomplishing the city’s goals and therefore contend that any other method was excessive. Police officers, however, are not required to use the least intrusive degree of force possible. Rather, as stated above, the inquiry is whether the force that was used to effect a particular seizure was reasonable, viewing the facts from the perspective of a reasonable officer on the scene. See Graham, 490 U.S. at 396, 109 S.Ct. at 1871. Whether officers hypothetically could have used less painful, less injurious, or more effective force in executing an arrest is simply not the issue. See Hammer, 932 F.2d at 846.⁴

Each officer had the discretion to use force or not, and if deciding to do so, how much force to apply. The videotape indicates that, after the demonstrators ignored pleas to desist and warnings regarding pain compliance techniques, the officers used minimal and controlled force in a manner designed to limit injuries to all involved. Substantial evidence supported the jury verdict.⁵

Ill,

The demonstrators contend that, even if the police did not violate the Fourth Amendment by using pain compliance techniques to execute their arrests, the city’s pain compliance policy is ■ itself unconstitutional. We need not decide this issue.

By finding that the arrests did not involve the use of unreasonable force, the jury found that neither the officers nor, implicitly, the policy, caused any deprivation of constitutional rights. This renders moot the question of whether the city’s policy authorized the use of constitutionally excessive force:

[None] of our cases authorizes the award of damages against a municipal corporation based on the actions of one of its officers if in fact the jury has concluded that the officer inflicted no constitutional harm. If a person has suffered no constitutional injury at the hands of the individual police officer, the fact that the departmental regulations might have authorized the use of constitutionally excessive force is quite beside the point.

City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 1573, 89 L.Ed.2d 806 (1986). E.g., Hinton v. City of Elwood, 997 F.2d 774, 782 (10th Cir.1993); Robinson v. City of St. Charles, 972 F.2d 974, 977 (8th Cir.1992).

Accordingly, we now have no reason to decide whether the city’s pain compliance policy authorized the use of excessive force.

IV.

Both parties request that we exercise our discretion to award attorney’s fees. See 42 U.S.C. § 1988 (1988). We decline to do so. Because the demonstrators have not procured relief modifying the city’s behavior, they are not prevailing parties. Farrar v. Hobby, - U.S. -, -, 113 S.Ct. 566, 573, 121 L.Ed.2d 494 (1992). The demonstrators’ action, however, is not so meritless as to justify an award of fees to the city. Elks Nat’l Found. v. Weber, 942 F.2d 1480, 1485 (9th Cir.1991), cert. denied, - U.S. -, 112 S.Ct. 2995, 120 L.Ed.2d 872 (1992).

Y.

Substantial evidence supports the jury verdict that San Diego’s police officers did not use excessive force by applying pain compliance techniques to arrest the demonstrators. As a result, we affirm the district court without deciding the constitutionally of the city’s pain compliance policy.

AFFIRMED.

1 . Members of Operation Rescue stage "rescue” demonstrations at abortion clinics nationwide. "The purpose of these 'rescue' demonstrations is to disrupt operations at the target clinic and ... ultimately to cause the clinic to cease operations.” Bray v. Alexandria Women's Health Clinic, - U.S. -, -, 113 S.Ct. 753, 780, 122 L.Ed.2d 34 (O'Connor, J., dissenting). To achieve this goal, the demonstrators "trespass on clinic property and physically block access to the clinic, preventing patients, as well as physicians and medical staff, from entering the clinic to render or receive medical or counseling services.” Id.

2 . In Graham, the Supreme Court indicated that relevant factors in the Fourth Amendment reasonableness inquiry “includ[e] the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest hy flight.” Graham, 490 U.S. at 396, 109 S.Ct. at 1872 (emphasis added). The Court did not, however, limit the inquiry to just these factors. Rather, the Court instructed that the jury should consider "whether the totality of the circumstances justifies a particular sort of seizure.” Id. (quoting Tennessee v. Garner, 471 U.S. 1, 8-9, 105 S.Ct. 1694, 1700, 85 L.Ed.2d 1 (1985)).

The dissent ignores this fact, attempting instead to turn the Graham analysis into a rigid three-part inquiry. This we cannot do. As the differences between Graham and this case aptly illustrate, "the facts and circumstances” of every excessive force case will vary widely. Constraining a jury’s analysis to the dissent’s limited inquiry would nullify Graham's test of “objective reasonableness” and would, therefore, contravene both the letter and spirit of the Court's pronouncement in that case.

3 . The demonstrators contend that the only relevant evidence of reasonableness is the conduct of officers initially responding to the first protest. They note that the jury must analyze the issue "from the perspective of a reasonable officer on the scene,” Graham, 490 U.S. at 396, 109 S.Ct. at 1872, and argue that actions of the subsequently arriving officers who implemented the pain compliance policy are not relevant because those officers could not have used the drag and carry method even if they thought it best to do so.

We disagree. Although Burgreen was not "on the scene” when he decided to implement the pain compliance policy, he based his decision on the anticipated circumstances of the demonstrations, which corresponded to the actual circumstances the officers encountered. On the videotape, the jury was able to observe the presence of factors indicating that pain compliance techniques were in fact reasonable, including the demonstrators’ conduct, the officers’ conduct, the size of the crowd, the presence of other protesters, the manner in which force was applied, and the consequences of that force.

If this evidence were not sufficient, police departments could never develop general policies for handling arrests. Neither Graham nor the Fourth Amendment compels us to reach such an illogical conclusion.

4 . The dissent reasons that, because "the noncha-kus inflicted great pain and subsequent disability without directly accomplishing th[e] purpose [of forcing demonstrators to walk], their use could not be reasonable.” [Dissent at 5726]. This after-the-fact analysis violates the fundamental precept of Graham; namely, "[t]he ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham, 490 U.S. at 396, 109 S.Ct. at 1872.

5 . Although not explicitly stated, the dissent's analysis requires the conclusion that no reasonable juror could have found the city's use of force in this case to be reasonable. See, e.g., Eberle, 901 F.2d at 818. In so concluding, the dissent compares the city's “brutal” use of force with a hypothetical torture-by-lighted-cigarette method. This comparison displays a fundamental misunderstanding of the pain compliance techniques at issue. Unlike the use of a lighted cigarette, which would create immediate and searing pain, the discomfort produced by the OPNs was gradual in nature. The videotape (which was seen by the jurors) illustrates that the police first applied a loose grip and then progressively tightened their hold until the demonstrators stood and ceased resistance. The moment the demonstrators complied, the police released the OPNs. The jury's verdict reflects the fact that the police, in fact, did all they could to minimize the pain inflicted.

Moreover, the dissent trivializes the risk of injury (to both officers and demonstrators) inherent in "drag and carry” removal techniques, dismissively comparing the officers' task to that of "carrying] their groceries to the car.” [Dissent at 812]. Even if the analogy were apt, which it is not, it assumes that police departments could, at will, "hir[e] or assign[] larger officers to the task.” [Id. at 812] Such an assumption is dubious, at best, considering the modern realities of budget cutbacks and shrinking police forces. And, even if it were possible to hire or assign officers as the dissent suggests, to do so might impede the goal of providing opportunities in law enforcement irrespective of gender. The jury's verdict reflects the fact that a major motivating factor in Chief Burgreen's adoption of the pain compliance policy was prevention of injury to existing officers.