NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 12 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
HARRISON ORR, No. 15-16514
Plaintiff-Appellee, D.C. No. 2:14-cv-00585-WBS-EFB v.
BRAME, Officer, California Highway MEMORANDUM* Patrol; STATE OF CALIFORNIA; CALIFORNIA HIGHWAY PATROL,
Defendants,
and
PLUMB, Officer, California Highway Patrol,
Defendant-Appellant.
HARRISON ORR, No. 16-15109
Plaintiff-Appellant, D.C. No. 2:14-cv-00585-WBS-EFB v.
BRAME, Officer, California Highway Patrol; PLUMB, Officer, California Highway Patrol; STATE OF CALIFORNIA; CALIFORNIA HIGHWAY PATROL,
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Defendants-Appellees.
Appeal from the United States District Court for the Eastern District of California William B. Shubb, District Judge, Presiding
Argued and Submitted August 18, 2017 San Francisco, California
Before: RAWLINSON and NGUYEN, Circuit Judges, and VANCE,** District Judge.
In these consolidated appeals, defendant Terrence Plumb challenges the
district court’s order denying his motion for judgment as a matter of law under
Federal Rule of Civil Procedure 50(b), and plaintiff Harrison Orr challenges the
district court’s order partially denying his motion for attorney’s fees.1 We have
jurisdiction under 28 U.S.C. § 1291. In Plumb’s appeal, no. 15-16514, we affirm
the district court’s Rule 50(b) ruling. In Orr’s appeal, no. 16-15109, we vacate the
district court’s fee award and remand for recalculation of fees.
1. Plumb contends that he was entitled to judgment as a matter of law
because the facts at trial did not establish that he used excessive force when
arresting Orr. “We review de novo the district court’s denial of a Rule 50(b)
** The Honorable Sarah S. Vance, United States District Judge for the Eastern District of Louisiana, sitting by designation. 1 We resolve Plumb’s appeal of the district court’s judgment on the jury’s special verdict, no. 15-16154, in a concurrently filed opinion.
2 renewed motion for judgment as a matter of law. The test is whether ‘the
evidence, construed in the light most favorable to the nonmoving party, permits
only one reasonable conclusion, and that conclusion is contrary to that of the
jury.’” Estate of Diaz v. City of Anaheim, 840 F.3d 592, 604 (9th Cir. 2016)
(quoting White v. Ford Motor Co., 312 F.3d 998, 1010 (9th Cir. 2002)), cert.
denied, 137 S. Ct. 2098 (2017).
Even when a suspect “initially resist[s] being arrested, [the officer’s]
punches [a]re not necessarily a reasonable response.” Blankenhorn v. City of
Orange, 485 F.3d 463, 480 (9th Cir. 2007). “Relevant factors to [the
reasonableness] inquiry include . . . ‘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 by flight.’” Id.
at 477 (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)).
Here, the officers were dealing with a 76-year-old disabled man who could
barely stand without a cane. Orr posed no immediate threat to the officers or
anyone else. He had agreed to accompany them to the station. He pleaded with
the officers not to handcuff him and told them that he needed control of his arms
for balance due to a stroke. While Orr passively resisted by folding his arms
across his chest and twisting his torso from side to side, the suspected crime,
driving under the influence of drugs, was nonviolent and based on a minor driving
3 infraction. A punch that caused Orr to fall to the ground was clearly not justified
under these circumstances. “[I]t is rarely necessary, if ever, for a police officer to
employ substantial force without warning against an individual who is suspected
only of minor offenses, is not resisting arrest, and, most important, does not pose
any apparent threat to officer or public safety.” Young v. County of Los Angeles,
655 F.3d 1156, 1166–67 (9th Cir. 2011).
It is irrelevant that by denying punitive damages the jury implicitly found
that Plumb’s conduct was not malicious, oppressive, or in reckless disregard of
Orr’s rights. “The Fourth Amendment inquiry is one of ‘objective reasonableness’
under the circumstances, and subjective concepts like ‘malice’ . . . have no proper
place in that inquiry.” Graham, 490 U.S. at 399.
Nor did Plumb have probable cause to arrest Orr for resisting arrest once
Plumb employed excessive force. A “defendant cannot be convicted of an offense
against a peace officer in the performance of his duties ‘unless the officer was
acting lawfully at the time the offense against the officer was committed.’” Arpin
v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 920 (9th Cir. 2001) (quoting
In re Manuel G., 941 P.2d 880, 885 (Cal. 1997)). “An officer using excessive
force is not acting lawfully.” People v. Sibrian, 207 Cal. Rptr. 3d 428, 433 (Ct.
App. 2016); see People v. Olguin, 173 Cal. Rptr. 663, 666 (Ct. App. 1981)
4 (“[E]xcessive force by a police officer renders unlawful an otherwise lawful arrest
in that excessive force is not within the performance of the officer’s duty.”).
2. Plumb argues that the district court improperly denied him qualified
immunity because it was not clearly established at the time that he was violating
Orr’s constitutional rights. “[A] right is clearly established when the ‘contours of
the right [are] sufficiently clear that a reasonable official would understand that
what he is doing violates that right.’” Castro v. County of Los Angeles, 833 F.3d
1060, 1067 (9th Cir. 2016) (en banc) (quoting Serrano v. Francis, 345 F.3d 1071,
1077 (9th Cir. 2003)), cert. denied, 137 S. Ct. 831 (2017).
It was clearly established at the time that “gang-tackling without first
attempting a less violent means of arresting a relatively calm . . . suspect [of a non-
violent offense]—especially one who had been cooperative in the past and was at
the moment not actively resisting arrest—was a violation of that person’s Fourth
Amendment rights.” Blankenhorn, 485 F.3d at 481. The same conduct preceded
by a punch obviously would have been no less a Fourth Amendment violation.
We agree with the district court’s analysis, which relied primarily on Winterrowd
v. Nelson, 480 F.3d 1181 (9th Cir. 2007), and Meredith v.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 12 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
HARRISON ORR, No. 15-16514
Plaintiff-Appellee, D.C. No. 2:14-cv-00585-WBS-EFB v.
BRAME, Officer, California Highway MEMORANDUM* Patrol; STATE OF CALIFORNIA; CALIFORNIA HIGHWAY PATROL,
Defendants,
and
PLUMB, Officer, California Highway Patrol,
Defendant-Appellant.
HARRISON ORR, No. 16-15109
Plaintiff-Appellant, D.C. No. 2:14-cv-00585-WBS-EFB v.
BRAME, Officer, California Highway Patrol; PLUMB, Officer, California Highway Patrol; STATE OF CALIFORNIA; CALIFORNIA HIGHWAY PATROL,
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Defendants-Appellees.
Appeal from the United States District Court for the Eastern District of California William B. Shubb, District Judge, Presiding
Argued and Submitted August 18, 2017 San Francisco, California
Before: RAWLINSON and NGUYEN, Circuit Judges, and VANCE,** District Judge.
In these consolidated appeals, defendant Terrence Plumb challenges the
district court’s order denying his motion for judgment as a matter of law under
Federal Rule of Civil Procedure 50(b), and plaintiff Harrison Orr challenges the
district court’s order partially denying his motion for attorney’s fees.1 We have
jurisdiction under 28 U.S.C. § 1291. In Plumb’s appeal, no. 15-16514, we affirm
the district court’s Rule 50(b) ruling. In Orr’s appeal, no. 16-15109, we vacate the
district court’s fee award and remand for recalculation of fees.
1. Plumb contends that he was entitled to judgment as a matter of law
because the facts at trial did not establish that he used excessive force when
arresting Orr. “We review de novo the district court’s denial of a Rule 50(b)
** The Honorable Sarah S. Vance, United States District Judge for the Eastern District of Louisiana, sitting by designation. 1 We resolve Plumb’s appeal of the district court’s judgment on the jury’s special verdict, no. 15-16154, in a concurrently filed opinion.
2 renewed motion for judgment as a matter of law. The test is whether ‘the
evidence, construed in the light most favorable to the nonmoving party, permits
only one reasonable conclusion, and that conclusion is contrary to that of the
jury.’” Estate of Diaz v. City of Anaheim, 840 F.3d 592, 604 (9th Cir. 2016)
(quoting White v. Ford Motor Co., 312 F.3d 998, 1010 (9th Cir. 2002)), cert.
denied, 137 S. Ct. 2098 (2017).
Even when a suspect “initially resist[s] being arrested, [the officer’s]
punches [a]re not necessarily a reasonable response.” Blankenhorn v. City of
Orange, 485 F.3d 463, 480 (9th Cir. 2007). “Relevant factors to [the
reasonableness] inquiry include . . . ‘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 by flight.’” Id.
at 477 (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)).
Here, the officers were dealing with a 76-year-old disabled man who could
barely stand without a cane. Orr posed no immediate threat to the officers or
anyone else. He had agreed to accompany them to the station. He pleaded with
the officers not to handcuff him and told them that he needed control of his arms
for balance due to a stroke. While Orr passively resisted by folding his arms
across his chest and twisting his torso from side to side, the suspected crime,
driving under the influence of drugs, was nonviolent and based on a minor driving
3 infraction. A punch that caused Orr to fall to the ground was clearly not justified
under these circumstances. “[I]t is rarely necessary, if ever, for a police officer to
employ substantial force without warning against an individual who is suspected
only of minor offenses, is not resisting arrest, and, most important, does not pose
any apparent threat to officer or public safety.” Young v. County of Los Angeles,
655 F.3d 1156, 1166–67 (9th Cir. 2011).
It is irrelevant that by denying punitive damages the jury implicitly found
that Plumb’s conduct was not malicious, oppressive, or in reckless disregard of
Orr’s rights. “The Fourth Amendment inquiry is one of ‘objective reasonableness’
under the circumstances, and subjective concepts like ‘malice’ . . . have no proper
place in that inquiry.” Graham, 490 U.S. at 399.
Nor did Plumb have probable cause to arrest Orr for resisting arrest once
Plumb employed excessive force. A “defendant cannot be convicted of an offense
against a peace officer in the performance of his duties ‘unless the officer was
acting lawfully at the time the offense against the officer was committed.’” Arpin
v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 920 (9th Cir. 2001) (quoting
In re Manuel G., 941 P.2d 880, 885 (Cal. 1997)). “An officer using excessive
force is not acting lawfully.” People v. Sibrian, 207 Cal. Rptr. 3d 428, 433 (Ct.
App. 2016); see People v. Olguin, 173 Cal. Rptr. 663, 666 (Ct. App. 1981)
4 (“[E]xcessive force by a police officer renders unlawful an otherwise lawful arrest
in that excessive force is not within the performance of the officer’s duty.”).
2. Plumb argues that the district court improperly denied him qualified
immunity because it was not clearly established at the time that he was violating
Orr’s constitutional rights. “[A] right is clearly established when the ‘contours of
the right [are] sufficiently clear that a reasonable official would understand that
what he is doing violates that right.’” Castro v. County of Los Angeles, 833 F.3d
1060, 1067 (9th Cir. 2016) (en banc) (quoting Serrano v. Francis, 345 F.3d 1071,
1077 (9th Cir. 2003)), cert. denied, 137 S. Ct. 831 (2017).
It was clearly established at the time that “gang-tackling without first
attempting a less violent means of arresting a relatively calm . . . suspect [of a non-
violent offense]—especially one who had been cooperative in the past and was at
the moment not actively resisting arrest—was a violation of that person’s Fourth
Amendment rights.” Blankenhorn, 485 F.3d at 481. The same conduct preceded
by a punch obviously would have been no less a Fourth Amendment violation.
We agree with the district court’s analysis, which relied primarily on Winterrowd
v. Nelson, 480 F.3d 1181 (9th Cir. 2007), and Meredith v. Erath, 342 F.3d 1057
(9th Cir. 2003). Rather than addressing these cases, Plumb instead relies on cases
that involved lesser force used by officers in far more dangerous situations.
5 3. Plumb contends that he was entitled to judgment as a matter of law on
Orr’s Bane Act claim. As relevant here, the Bane Act imposes liability on a person
who “interferes by threat, intimidation, or coercion . . . with the exercise or
enjoyment by any individual . . . of rights secured by the Constitution or laws of
the United States.” Cal. Civ. Code § 52.1(a). In other words, it “require[s] an
attempted or completed act of interference with a legal right, accompanied by a
form of coercion.” Jones v. Kmart Corp., 949 P.2d 941, 944 (Cal. 1998).
Plumb argues that the necessary coercion “must be independent of the
coercion, if any, inherent in the constitutional violation itself.” “[T]he majority of
federal district courts in California have held that ‘[w]here Fourth Amendment
unreasonable seizure or excessive force claims are raised and intentional conduct is
at issue, there is no need for a plaintiff to allege a showing of coercion independent
from the coercion inherent in the seizure or use of force.’” Simmons v. Super. Ct.,
212 Cal. Rptr. 3d 884, 894 (Ct. App. 2016) (quoting Dillman v. Tuolumne County,
No. 1:13-CV-00404 LJO, 2013 WL 1907379, at *21 (E.D. Cal. May 7, 2013)).
We agree. “[T]he elements of [an] excessive force claim under § 52.1 are the same
as under § 1983” if the plaintiff “asserts no California right different from the
rights guaranteed under the Fourth Amendment.” Cameron v. Craig, 713 F.3d
1012, 1022 (9th Cir. 2013).
6 Shoyoye v. County of Los Angeles, 137 Cal. Rptr. 3d 839 (Ct. App. 2012),
did not hold that in all Bane Act claims the coercion and the act violating a legal
right must be independent. Shoyoye involved an unlawful detention where the
plaintiff was not timely released from jail due to clerical error. Because “the
[California] Legislature meant the statute to address interference with
constitutional rights involving more egregious conduct than mere negligence,” id.
at 848, Shoyoye held that “[a] wrongful arrest and detention, without more, cannot
constitute ‘force, intimidation, or coercion’ for purposes of section 52.1,” id. at
849.
We have not extended Shoyoye’s holding beyond search-and-seizure cases,
where coercion is inherent in a detention or search regardless of whether the illegal
conduct is egregious. See Lyall v. City of Los Angeles, 807 F.3d 1178, 1196 (9th
Cir. 2015). Excessive force, on the other hand, is by its very nature egregious. See
Doe v. State, 214 Cal. Rptr. 3d 391, 400 (Ct. App. 2017) (“To prevail on a cause of
action under Civil Code section 52.1, the plaintiff must show that the defendant
interfered with or attempted to interfere with the plaintiff’s legal right by
threatening or committing violent acts.”).
4. We next address Orr’s appeal of the district court’s reduction of his
attorney’s fee request. We review the fee award for abuse of discretion. Morales
v. City of San Rafael, 96 F.3d 359, 362 (9th Cir. 1996).
7 The district court significantly reduced its lodestar determination based in
part on “the lack of a tangible public benefit from the verdict.” The court
acknowledged that in determining the appropriate fee it “should consider whether,
and to what extent, [Orr’s] suit benefitted the public,” including “the public benefit
of deterring unconstitutional conduct by law enforcement officials.” McCown v.
City of Fontana, 565 F.3d 1097, 1105 (9th Cir. 2009). Yet the district court was
“not persuaded that the verdict in this case will meaningfully deter future
violations by other officers.”
The court’s reliance on a law review article, Joanna C. Schwartz, Police
Indemnification, 89 N.Y.U. L. Rev. 885 (2014), was particularly problematic.
Based on empirical evidence “that police officers almost never financially
contribute to settlements and judgments, . . . lawsuits have little negative impact on
police officers’ employment, and . . . officers’ behavior is not influenced to any
substantial extent by the threat of being sued,” id. at 943, Schwartz argues that
courts should provide greater deterrents to police misconduct, such as by
eliminating qualified immunity, id., or imposing vicarious liability on
municipalities, id. at 947. But the court’s reduction of fees here would merely
serve to reduce the incentive for the California Highway Patrol to make remedial
changes to its procedures and training.
8 Moreover, whatever the merits of Schwartz’s academic findings and
recommendations, the district court was not free to disregard judicial precedent in
order to adopt them. Just as the court could not have imposed vicarious liability on
the state or refused to consider defendants’ qualified immunity defense, the court
should not have assumed, contrary to a long line of cases, that a fee award would
have no deterrence effect. See, e.g., Morales, 96 F.3d at 364 (“Because it assessed
damages against the defendants, the verdict established a deterrent to the City, its
law enforcement officials and others who establish and implement official policies
governing arrests of citizens.”).
We therefore vacate the award and remand for recalculation of fees. On
remand, the district court should reconsider or otherwise justify its lodestar
reduction in light of this memorandum disposition.
AFFIRMED in part; VACATED in part; and REMANDED.
9 FILED Orr v. Brame, Case Nos. 15-16514 and 16-15109 MAR 12 2018 Rawlinson, Circuit Judge, concurring: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS I concur in the result.