NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARTHA WINKLER,

Plaintiff

- Appellant,

v. CITY OF PHOENIX, a public entity ; JASON GILLESPIE, Officer; individually and in his official capacity as a police officer for Phoenix Police ,

Defendants

- Appellees,

and
DANIEL V. GARCIA; JOSEPH YAHNER,

Defendants. No. 19

- 16034

D.C. No. 2:15

- cv
- 01786

- DLR

MEMORANDUM *

Appeal from the United States District Court for the District of Arizona Douglas L. Rayes, District Judge, Presiding
Argued and Submitted March 2, 2021

Phoenix, Arizona
Before: BEA and BUMATAY, Circuit Judges, and CARDONE, * * District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable Kathleen Cardone, United States District Judge for the Western District of Texas, sitting by designation. 

# FILED

MAR 16 2021

MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

Plaintiff

- Appellant Martha Winkler appeals a n adverse judgment on two
claims brought under 42 U.S.C. § 1983, alleging unlawful arrest and excessive

forc e in violation of the Fourth Amendment

. The trial court granted judgment as a

matter of law on the unlawful arrest claim , see Fed. R. Civ. P. 50(a), and the jury

retu rned a verdict for Defendant

- Appellee Officer Jason Gillespie on the excessive

force claim

. On appeal, Winkler claims the district court erred by : (1) incorrectly
instructing the jury on excessive force , and ( 2 ) grant ing the Rule 50 motion

. 1 We
have jurisdiction under 28 U.S.C. § 129 1. We AFFIRM in part, REVERSE in part,

and REMAND for a new tria l on the excessive force claim

.
This c ourt reviews preserved instructional challenges alleging a

misstatement of law de novo , and unpreserved instr uctional challenges for plain

error

. Dunlap v. Liberty Nat ’l Prod., Inc. , 878 F.3d 794, 797 (9th Cir. 2017)
(citation omitted). Because we ultimately find the excessive force instruction
erroneous under either standard, we assume arguendo that plain erro r applies.

United States v. Daniels , 760 F.3d 920, 923 (9th Cir. 2014)

. To obtain relief on
plain error review, the challenger must show : (1) error , (2) that wa s plain , (3) that

1 Winkler also claims the district court erroneously denied her Batson challenge. See Batson v. Kentucky, 476 U.S. 79 (1986)

. Because we r everse this case due to the defective jury instruction , we need not address th at issue

. See United States v. Hernandez , 27 F.3d 1403, 1404 n.1 (9th Cir. 1994 ) (declining to address Batson challenge).3

affected the challenger’ s substantial right s, and (4) that seriously affected the
fairness, integrity, or public reputation of judicial proceedings. Bearchild v.

Cobban , 947 F.3d 1130, 1139 (9th Cir. 2020) (citing C.B. v. City of Sonora , 769
F.3d 1005, 101 7

– 19 (9th Cir. 2014) (en banc) )

. We review de novo a dist rict
court’s order granting a motion for judgment as a matter of law under Rule 50(a).
Torres v. City of Los Angeles , 548 F.3d 1197, 1205 (9th Cir. 2008) ( citing Santos v.

Gates, 287 F.3d 846, 851 (9th Cir. 2002) )

.
1. The district court misstate d the law on excessive force when it gave the following curative instruction : When deciding whether an officer used excessive force during a lawful arrest you are to consider the 11 factors set forth in the Excessive Force Instru ction found at pages 13 & 14. However, whether an officer provoked plaintiff to resist arrest or created the need to use force is not a factor to consider

. (emphasis added). It is well settled that “the right to make an arrest . . . necessarily

carries with it the right to use some degree of physical coercion or threat thereof to

effect it.” Graham v. Connor , 490 U.S. 386, 396 (1989) (citing Terry v. Ohio, 392
U.S. 1, 22

– 27 (1968)). However, “the force used to make an arrest must be
balanced against the need for force: it is the need for force which is at the heart of

the” excessive force inquiry. Velazquez v. City of Long Beach , 793 F.3d 1010,
1025 (9th Cir. 2015) ( quoting Blankenhorn v. Cit y of Orange, 485 F.3d 463, 480
(9th Cir. 2007) )

.4

Here, while much of the curative instruction was correct , a critical part of it

was not. As discuss ed below regarding the excessive force claim , the district court

had properly determined that the officer had probable cause to arrest Winkler as a

matter of law

. Yet , Winkler’s counsel insisted during his closing argument that the

officer should have let her “walk away.” A curative instruction was necessary to
correct that improper argument, and to preclude the jury from considering whether

the officer’s decision to arrest Winkler “provoked plaintiff to resist

. ”
However, by directing the jury not to consider whether the officer “created

the need to use fo rce,” the instruction went too far. In this circuit, among the

factors the jury m ust consider when evaluating excessive force is whether the
officer was “simply responding to a preexisting situation,” or instead “create[d] the
very emergency he then resor t[ed] to . . . force to resolve.” Nehad v. Browder , 929
F.3d 1125, 1135 (9th Cir. 2019) (quoting Porter v. Osborn , 546 F.3d 1131, 1141
(9th Cir. 2008) ). The instruction precluded , for example, any inference that the

takedown maneuver would have been unnecessary had Officer Gillespie not

“creat ed the dangerous situation,” Espinosa v. City & Cty. of S.F. , 598 F.3d 528,

537 (9th Cir. 2010) , creat ed his “ own sense of urgency, ” Nehad , 929 F.3d at 1135
(citations omitted ) , fail ed to use alternative tactics such as de

- escalation , see Lam
v. City of San Jose , 869 F.3d 1077, 1087 (9th Cir. 2017), or fail ed to warn prior to
using force, Bryan v. MacPherson , 630 F.3d 805, 831 (9th Cir. 2010)

. T he5

instruction thus undermined the requis ite “fact

- intensive inquiry” into “ a ll
circumstances pertinent to the need for the force used.” Velazquez , 793 F.3d at

1024 (emphasis added) (citations omitted)

. The Supreme Court’s decision in County of Los Angeles v. Mendez , 137 S.

Ct. 1539 (2017) , is not to the contrary. That case invalidated th is c ourt’s use of the
“provocation rule

. ” See id. at 154 3

– 44

. But the Mendez Court expressly declined

to decide the argument raised by Officer Gillespie: namely, whether the jury may

consider “ unre asonable police conduct prior to the use of force that foreseeably

created the need to use it. ” Id. at 1547 n.*. Given this c ourt’s longstanding

endorsement of that factor, t he district court’s instruction precluding the jury from
considering it was in error. See, e.g., Espinosa , 598 F.3d at 537

.
Viewed in context , that error was plain

. See Bearchild , 947 F.3d at 1139

– 40
( “We consider the entire set of instructions as a whole to determine whether an

indi vidual instruction . . . incorrectly stated the law

. ”). An instruction i s plainly

erroneous wh en it “impermissibly deviate [s] ” from “established legal principles.”

See id. at 1148. Here, i n the sentence immediately preceding the erroneous
instruction, the jury was directed t o consider the factors set forth in this c ourt’s

model instruction on excessive force , which include s the officer conduct factors

mentioned above. See Ninth Circuit Jur y Instructions Comm., Manual of Model
Civil Jury Instructions, at 191

– 94 (2017) (Model Civil Jury Instruction 9.25)

.6

T aken together, the instructions communicated to the jury that it should consider
the proper factors, but not infer from them that the officer contributed to the need

for force. This substantially undermined the excessive force inquiry. See
Velazquez , 793 F.3d at 102 4. To the extent the instructions were in conflict, we
“cannot presume that the jury followed the correct one.” See United States v.

Lewis , 67 F.3d 225, 234 (9th Cir. 1995) (reversing and remanding for new trial
based on conflicting jury instructions). It was thus “ sufficiently clear at the time of

trial that the district court’s instruction was impermissible .” See Bearchild , 947

F.3d at 1139 ( internal quotation marks and ellipsis omitted ) (quoting Hoard v.

Hartman , 904 F.3d 780, 790 (9th Cir. 2018))

. And f or similar reasons, we are persuaded that the error prejudiced Winkler’s substantial rights in a manner that
seriously affected the fairness of the judicial proceeding

. See id. (“ We will usually
find sufficient prejudice to warrant reversal where ‘ it is impossible to determine
from the jury ’ s verdict and evidentiary record that the jury would have re ached the
same result had it been properly instructed. ’ ” (quoting Hoard , 904 F.3d at 791 ) ) ;

see also Dang v. Cross , 422 F.3d 800, 805 (9th Cir. 2005) (“In evaluating
jury instructions, prejudicial error results when, looking to the instructions as a
whole, the substance of the applicable law was not fairly and correctly covered.”
(citation omitted) )

.
2

. The district court did not err by granting Officer Gillespie’s Rule 507

motion on unlawful arrest

. Although the court incorrectly suggested in a single

stray remar

k that reasonableness was not the standard, the court’s analysis made

clear that it was aware of and applied the correct rule

. See Van Buskirk v. Baldwin ,
265 F.3d 1080, 1085 (9th Cir. 2001). The court focused entirely on whether there

was probable cause to arrest for trespass , and an “arrest is reasonable if the officer

has probable cause

. ” District of Columbia v. Wesby, 138 S. Ct. 577, 586 (2018).

A ny error in the court’s stray remark was therefore harmless.

Moreover, t he court correctly found that there was probable cause as a

matter of law , despite Winkler’s arguments to the contrary. The uncontradicted

facts known to the officer at the time of arrest were “sufficient for a reasonably
prudent person to beli eve that the suspect ha[d] committed a crime.” See Reed v.

Lieurance , 863 F.3d 1196, 1204 (9th Cir. 2017) (quoting Rosenbaum v. Washoe
Cty

. , 663 F.3d 1071, 1076 (9th Cir. 2011) )

. Officer Gillespie arrested Winkler in a
convenience store parking lot after being dispatched to the scene. According to the

C omputer A utomated D ispatch , Winkler was “harassing people in the parking lot
and refusing to leave.” T he store clerks corroborated that informatio n, reporting
that their manager had asked Winkler to leave several times, but that she had
remained in the parking lot. Th is evidence tended to prove each element of the
trespass offense for which she was arrested : there was “a reasonable request to

leave ,” communicated by “a person having lawful control over [the] property,” but8

Winkler had nevertheless “remain[ed] unlawfully.” See A.R.S. § 13

- 1502.
Further, w hether Winkler was in fact told to leave is beside the point

. See

Wilkinson v. Torres , 610 F.3d 546, 551 ( 9th Cir. 2010)

. The “inquiry is not

whether [the arrestee] was trespassing,” but “ whether a reasonable officer had
probable cause to think [s he ] could have been.” Blankenhorn , 485 F.3d at 475
(citations omitted). The information then befo re Officer Gillespie was more than

sufficient to establish probable cause

. See id. at 472

– 73, 47 5 ( finding probable

cause as a matter of law where the evidence support ed only two out of three
elements of trespass).
AFFIRMED in part, REVERSED in part, and REMANDED for a new

tria l on Winkler’s excessive force claim

.