F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

R O B E R T I

. R E E S E , J R .,

Plaintiff-Appellant

,

v

.

C O U N T Y O F S A C R

A M E N T O ; D U

N C A N B R O W N , Sacramento County Sheriff’s Department Deputy (B a dg e #1220); Z A C H A R

Y R O S E , Sacramento County

Sheriff’s Department Deputy

(B adg e #832), Defendants-Appellees. N o. 16-16195

D.C. No. 2:13-cv-00559- GEB -KJ N

R O B E R T I

. R E E S E , J R .,

Plaintiff-Appellee

,

v

.

C O U N T Y O F S A C R

A M E N T O ; Z A C H A R

Y R O S E , Sacramento County Sheriff’s Department Deputy (B a dg e #832), Defendants-Appellants

,

and N o. 16-16230

D.C. No. 2:13-cv-00559- GEB -KJ N

OPI NI ONR E E S E V

. C O U N T Y O F S A C R

A M E N T O 2

D U N C A N B R O W N , Sacramento County Sheriff’s Department Deputy (B adg e #1220), Defendant.

A ppeal from the United States District Court for the Eastern District of California Garland E. B urrell, J r., Senior District J udg e, Presiding

Arg u ed and Submitted December 8, 2017 San F rancisco, California

F iled April 23, 2018

B e fore: Milan D. Smith, J r. and Sandra S. I kuta, Circuit J udg e s, and Diane J . Humetewa, * District J u dg e.

Opinion by

J u dg e Humetewa

* T h e Ho n o rab le Dian e J. Hu m etew a, Un i ted States District J u d g e f or th e District o f

A rizo n a, sittin g b y

d esig n atio n

.R E E S E V

. C O U N T Y O F S A C R

A M E N T O 3

SUMMARY * *

Civil Rights

The panel (1) affirmed the dist r i c t court’s decision
g ranting d e f

endants’ post-verdict motion for judg ment a s

a m atter of law on the issue of qualified immunit y i n a 42 U .S.C. § 1983 a ction alleg ing ex cessive deadly force; (2) r e v ersed the d istrict court’s post-verdict decision
g ranting summary judg ment sua sponte for the defendants

on plaintiff’s California B ane A ct claim, and (3) affirmed the denial of defendants’ requests for post-trial relief.

A sheriff’s deputy shot plaintiff in h is a p artment during

a response to a

n anony mous 9 11 call after plaintiff opened his front door hol d i n g a larg e knife. The panel noted the jury ’s verdict that the deputy violated plaintiff’s rig ht to be free from ex cessive f

orce was sufficient to deny h i m qualified immunity under the first prong of the qualified i m m u nity analy sis, which considers whether there has been a violation of a constitutional rig ht. Nevertheless, addressing the second
prong of the analy sis, the p anel determined that p laintiff failed to identify a

ny sufficientl y a nalog ous cases showing that under similar c ircumstances a clearly established F ourth Amendment rig h t ag ainst the use of d ead l y f orce ex isted at the time of the shooting

. T h e p an el concluded that none o f plaintiff’s cases squarely g overned t h e situation that the deputy confronted such that he would have had clear warning that his use of deadly force was ob j ec t i v e ly unreasonable. The panel therefore a ffirmed the distr i c t c ourt’s r u ling that

** T h is su m m ary co n stitu

t es n o p art o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.R E E S E V

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A M E N T O 4

the deputy was entitled to qualified i m munity on the F ourth Amendment ex cessive force claim.

I n r eversing the district co u rt’s post-trial g rant o f
summary judg ment in f

avor of d efendants on the California B ane Act claim for e x cessive force, the panel h eld that the district court er r o n e o usly concluded that the B ane A ct requires a separate showing of coercion bey ond that inherent in the u se of f

o r c e

. The panel further determined that the Ba n e Act requires a specific intent to violate the arres t e e ’s rig ht. The panel concluded that althoug h the re was no evidence of coercion independen t from the deputy ’s use o f objectively unreasonable f orce, it could not conclude that no reasonable jury could find that t h e d ep uty had a specific intent to violate p l a intiff’s F ourth Amendment rig hts. According ly

, the panel r e manded the B ane Act c laim for a new trial.

Addressing defendants’ cross-appeal, the panel h eld that plaintiff’s claims were not barred by Heck v. Hu mphrey

, 512 U.S. 477 (1994) because defendants identified nothing in the record showing the specific f actual basis for plaintiff’s “no c ontest” plea to violating California Penal Code § 417(a)(1). W ithout such informa t i o n , the district court could not de t e r m i n e that plaintiff’s claim of ex cessive force in this case would c a ll into question the val i dity of his misdemeanor weapon conviction. The panel further h e ld that: (1) the jury ’s award of $150,000.00 for f u t u re noneconomic loss was supported b y substantial evidence; (2) any

error in the jury instruction on plaintiff’s F ourth A mendment claim that authoriz ed liability if it could be sho w n that defendants shot at p laintiff was harmless; (3) the district court d i d n o t abuse its discretion when it failed to ex clude certai n

ex p ert testimony ; a

nd ( 4 ) there was n o error in ex c luding theR E E S E V

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A M E N T O 5

deposition testimony of a defense witness who did not appear in court to testify

.

COUNSEL

Dale K. Galipo (arg

ued), L aw Office of Dale K. Galipo, W o odland Hills, California; Eric G rant, Hicks Thomas L L P, Sacramento, California; Stewart Katz
, L aw Office of Stewart Katz
, Sacramento, California; for Plaintiff-Appellant.

J ohn R. W hitefleet (arg

ued) and Thomas L

. Riordan, Porter Scott, Sacramento, California, for Defendants-Appellees.

OP INION

HUMETEW A, District J udg e:

Plainti f f/Appellant Robert Reese, J r. (“Reese”) appeals the district court’s decision g ranting Defendants’/Appellees’ (“the D e fendants”) p ost-verdict motion for judg ment as a matter of l aw o n the issue of qualified immunity

. Reese further appeals the district court’s post-verdict decision
g ranting “summary judg ment sua sponte ” for the Defendants

on the California B ane Act ( “ Ba n e Act”) claim. The Defendants cross-appea l the district court’s denial of their requests for post-trial relief. Defendants also arg ue that Heck

v. Humphrey

, 512 U.S. 477 (1994) should h ave barred Reese’s claims because his misdemeanor criminal conviction for ex hibiting a k

n if e arose out of the same acts. W e have jurisdiction under 28 U.S.C. § 1291.R E E S E V

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A M E N T O 6

Background

Robert Reese, J r., filed this civil rig hts claim ag ainst the Co u nty of Sacramento and two of its Deputy Sheriffs, Duncan B rown and Z achary Rose, following a sh o oting incident on March 25, 2 011. I n the hours leading up to the incident, Reese had consum e d larg e quantities of alcohol, marijuana, a

nd cocaine at a neig hborhood party

. T h e party ended when Reese and his neig hb o r Nathan beg an arg uing

over w hether Reese had taken Nathan’s b o t tle o f vodka. Sometime after the party , Nathan’s g irlfriend went to Reese’s apartment to retri e v e the vodka. Reese answered the door holding a k

nife and r efused to hand over the bottle. Around 4:30 a.m., R e e s e and Nathan ex c h a ng ed several tex t messag es, some containing racial epithets. Shortly thereafter, Reese heard knocking on his apartment door. He assumed it was Nathan. I

t was not.

Deputies B rown and Rose a n d several other police officers a rrived at Reese’s apartment complex shortly before 5:00 a.m. They were responding to an anony mo u s 9 1 1 c all that an African-American male had ex ited apartment 1 44 a nd fired a n a utomatic g u n. Th e ca ller a lso stated that the male

was p ossibly craz y , under the influence o f drug s, had a knife, and was back inside apartment 144.

Deputy Rose decided that someone should knock o n the do o r o f a partment 144 to f urther investig ate the 911 report. The d eputies d e ci d e d that Deputy B rown, who had a rifle, would stand back about 15 feet to cover the doorw ay while Deputy Rose would knock o n t h e apartment door. Deputy Ros e , c o n c e aling himself, stood to the side of the door a nd
ot h er deputies lined up behind him. Deputy Rose, while holding h is h andg un in one hand, knocked on the door w i thR E E S E V

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A M E N T O 7

his flashlig ht. Deputy B rown testified that after Deputy Rose knocked, “the door flew o pen. I saw a fig ure coming ou t,

arm u p , ex tended, large k n i fe[

. ] ” Upon seeing the knife, which he describes as being within a foot of Deputy Rose’s neck, Deputy B rown f

ired his rifle a t Reese. Deputy R o se, seeing Reese with the knife in h i s hand, simultaneously backed away from the door of the apartment. The nex t events occurred in what Deputy Rose describes as a “ milli s econd.” After the rifle shot, D eputy Rose advanced into the apartment

ex p ecting to see Reese shot and incapacitated. I nstead he saw Re e s e s t anding uprig ht in the apartment. H e c ould not, however, see Reese’s hands. Deputy Rose immediately fired his h an d gu n, aiming it at Reese’s chest. He was approx ima t ely three feet a way from Reese. Reese fell backward toward a co u ch and D eputy Rose saw blood on Reese’s clothing and the ca r pet. At trial, Deputy Rose
t e stified that he w as uncertain whether it was his or D ep u t y B rown’s shot that actually hit Reese but believed that it was his. Reese survived the incident and thereafter asserted civil rig hts c laims ag ainst the County and Deputies Br o w n a nd Rose.

After a seven-day jury trial, the jury returned a verdict in favor of Reese on his F ourth Amendment ex cessive force and B ane Act clai m s a g ainst Deputy Rose and the County

. The jury also returned a verdict i n favor of Deputy B rown, which Reese does n ot appeal. I n separate interrog a tories, the jury determined that Deputy Rose’s pistol round, not Deputy B rown’s rifle round, hit Reese. The jury also f o u n d t hat Reese had a k

nife in his hand in an elevated position when he opened the d oor. They a nswered “no” to the que s t i on o f whether Reese brandished the kni f e a t Deputy Rose. Q u e s t i o n 1 4 asked the jury “[ a ] t the time Deputy Rose fired his shot, did it appear that Plaintiff posed an immediate threatR E E S E V

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A M E N T O 8

of death or serious p h y s ical injury to D eputy Rose? ” The jury answered “no.” The jury awarded Reese $534,340.00 in compensatory damag e s i ncluding $150,000.00 for noneconomic loss.

After the jury r eturned its v erdict, the Defendants moved for a judg ment as a matter of law asserting that Deputy Rose

was entitled to qualified immunity

, or a lternatively that Reese failed to prove by a preponderance of the evidence all of the elements required for a F ourth Amendment battery a nd B ane Act violation. The Defenda n t s asserted that the evidence at trial insufficiently e stablished that it was Deputy Rose’s shot that h it Reese, and t h u s Reese had n ot met his burden o f showing Rose had caused Reese’s harm. F inally

, the Defendants a sserted that Reese’s claims were barred by Heck v. Humphrey because he pleaded no contest to a violation of California Penal Code section 4 17(a) ( 1 )

. Defendants also moved for a new trial, arg uing that the district court erred in its instruction to the jury

on Reese’s B ane Act claim.

The district cour t determined that Deputy Rose was entitled to qualified immunity o n Reese’s F ourth A mendment claim. The d istrict court then g ranted “s u m m a r y judg ment

sua sponte ,” finding that Defendants were enti t l e d to judg ment as a matter of law on Rees e ’ s Ba n e Act c laim, concluding that Defendants’ proposed jury instruction on that claim s h o u l d have been g iven. The district court denied Defendants’ other requests for post-trial relief, including their Heck v. Humphrey claim. Reese appealed the district court’s post-trial ruling s in favor of Defendants. Defendants filed a cross-appeal reasserting their H eck v. Humphrey cl a i m a nd asserting that the d istrict court e rred in several of its evidentiary ruling s a

nd its award of future non-economic loss.R E E S E V

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A M E N T O 9

Analysis

I. Def endants’ P ost-Verdict Motion f or Judgm e nt as a Matter of Law

The Court of Appeals “re v i e w[ s ] de novo the g rant o r denial of a renewed motion for judg ment as a matter of law.” Pavao v. Pagay
, 3 07 F .3d 915, 918 (9th Cir. 2002). “A renewed motion for judg ment as a matter of law is p r o perly
g ranted o n l y ‘ if the evidence, c o nstrued in the lig ht most favorable to the n o n m oving p arty , permits only o ne reasonable conclusion, and that conclusion is contrary to the jury ’s verdict.’” Ca s tro v. County o f Los Angeles

, 833 F .3d 1060, 1 066 (9th Cir. 2 016) (quoting Pavao
, 3 07 F

. 3 d at 918). Thus, althoug h the Court does not defer to the district court’s decision on the motion, it g ives “sig nificant deference to the jury ’s verdict and to the nonmoving parties

. . . when deciding whether that decision was correct.” A

. D

. v

. Cal. Highway Patrol , 712 F .3d 446, 453 (9th Cir. 2013).

A. Qualif

ied Im m unity

Reese first challeng e s the district court’s post-ve rdict ruling that Deputy Rose is entitled to qualified immunity on his F ourth Amendment ex cessive force claim.

“The d octrine of qualified immunity p rotects g overnment officials ‘from liability for civil damag es insofar as their conduct d oes not violate clearly established sta t utory o r constitutional rig hts of w hich a reasonable person would have known.’” P earson v

. Callahan

, 5 55 U.S. 223, 23 1 (2009) (quoting Harlow v. Fitzgerald

, 457 U.S. 800, 818 (1 9 8 2 )). “Qualified immunity g ives g overnment officials breathing

room to make reasonable but mistaken judg ments about openR E E S E V

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A M E N T O 10

leg al questions. W hen properly applied, it protects ‘all but the plainly incompetent or those w ho kno w i n g ly violate the law.’” A shcroft v. al-Kidd

, 563 U.S. 731, 743 (2011) (quoting Malley v

. Briggs
, 475 U .S. 335, 341 (1986)). “The purpose of qualified immunity is to strike a balance between the competing ‘ need to h old p u blic o f ficials accountable when the y ex ercise power irresponsibly and the n eed to shield officials from harassment, d istraction, and liability when they perform their duties reasonably

. ’ ” M attos v. Agarano
, 661 F

. 3d 433, 4 40 (9th Cir. 2011) (quoting Pearson
, 5 55 U.S.
at 231)

. “ I n determining whether an o fficer is entitled to qualified immunity

, w e c onsider (1) whether th e r e h a s been

a violation of a constitutional rig ht; and (2) whether that rig ht

was clearly e s t a b l i shed a t the time of the officer’s alleg ed misconduct.” Lal v. California

, 7 4 6 F .3d 1112, 1116 (9th Cir. 2014) (citing P earson , 555 U.S. at 232).

Here, the jury found Deputy Rose violated Reese’s rig ht
to be free from ex cessive f orce under the F ourth Amendment. “Therefore, the jury ’s verdict ag ainst [ Rose] is suffi c i e n t to deny h im qualified immunity on this p r o n g of the analy sis.” See A.D.
, 712 F .3d at 456 (deny ing q u a l i fied immunity on a post-verdict motion for judg ment as a matter of law). Rose’s entitlement to qualified immunity therefore turns on whether R e e s e ’ s rig ht was clearly established at the time of the incident in 2011.

J oining other circuit courts from around the c ountry , this Court recently determined that the “ c l e arly established” prong of the qu al i f

i ed immunity analy sis is a matter of law to be d ecided by a judg e. Morales v. Fry
, 8 73 F .3d 817, 8 2 4

– 2 5 (9th Cir. 2017). I n Morales

, we recog niz ed that “the question of whether a particular constitutional rig ht is ‘clearly established’ is one that the Supreme Court has increasing lyR E E S E V

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emphasiz ed is within the province of the judg e.” I d. at 822. “[ C] omparing a g iven case w ith ex isting statutory o r constitutional precedent is quintessentially a question of law for the judg e , not the jury .” Id. at 8 23. We recog ni z ed, however, that “[ a] bifurcation of d uties is unavoidable: only the jury can decide the disputed factual issues, while only the judg e can decide whether the rig ht was clearly esta b l ished once the factual issues are resolved.” Id.

I n arg uing that h is rig ht to b e free of ex cessive fo r c e under these c ir c u mstances was clearly established, Reese

re l i e s on the jury ’s answer to Q uestion 1 4, their finding that it did not appear that Reese pos ed a n immediate threat o f death or serious phy sical injury to Rose a t the time Rose fired his shot. Reese contends that by making this f inding

, the jury determined Rose v iolated Reese’s clearly e s t a blished rig ht
not to be subjected to deadly force when h e p o sed no immediate threat to Rose or o thers. As M o r a l e s confirmed, however, the question of w hether the rig ht was c learly established is solely for the judg e to decide, n ot the jury

. See id. at 825. Thus, althoug h the jury ’s finding that Reese p osed

no immediate threat of death or serious phy sical injury to Rose addresses the first prong of the qualified imm u n i ty analy sis, it does n ot answer the purely lega l question o f whether the rig ht was clearly est a b l i s h ed in this contex t. Therefore, the district court was within its a u t hority to d etermine, as a matter o f law, whether Deputy Ros e w a s entitled to qualified immunity

, even w here a jury determined that he v iolated Reese’s F o ur t h A m endment r ig ht to be free from ex cessive force.

Moreover, the district court appropriately analy z ed t he f a c t s here to the established standard that “[ a] Government official’s conduct violates c learly established law when, a t theR E E S E V

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time of the chall e n ge d conduct, ‘[ t] he contours of [a] rig ht [ are] sufficiently clear’ that every ‘reasonable official would have un d e r s t ood that what he is doing violates that rig ht.’” al-Kidd

, 563 U .S. at 741 (al t e r a t i ons in orig inal) (quoting Anderson v. Creighton

, 483 U.S. 635, 640 (1987)). “W e do
not require a case directly on point, b ut ex isting p r e cedent
must have placed the statu t o ry or constitutional question bey ond debate.” Id. Thus, “‘clearly established law’ should
not be defined ‘at a hig h level of g enerality .’” W h i t e v

. Pauly

, 137 S. Ct. 548, 552 (2017) (per curiam) (quoting a lKidd

, 563 U.S. at 741). “As [ the Supreme] Court ex p lained decades a g o, the clearly establish e d l a w must be ‘particulariz e d’ to the facts of the case.” I d. (citing Anderson

, 483 U.S. at 640). “ Such specificity is especially important in the F ourth Amendment contex t, where the [ Supreme] Court has recog n iz ed that ‘[ i] t is sometimes difficult for an officer
to determine h ow the relevant leg al doctrine, here ex cess ive force, will apply to the factual situati on the officer confronts.’” Mullenix v. Luna
, 136 S. C t

. 305, 3 08 (2015) (per curiam) ( second alteration in orig inal) (quoting Saucier v. Katz , 533 U.S. 194, 205 (2001)).

W e ag ree with the distri c t c o urt that Reese h as not i d entified any sufficiently analog o us cases showing th at under similar circumstances, a c learly estab lished F ourth Amendment rig h t ag ainst the use o f d eadly force ex isted at the tim e o f t h e shooting

. The jury determined that when Reese answered the door to his a partment, he had a knife in his hand in a n elevated p osition. Upon seeing Reese in the doorway with the knife, which was very close to where Rose

was st a n d ing

, B r own immediately fired a shot from his rifle
at Reese, b ut missed. After B rown fired the shot, h e s a w Reese back into the apartment and drop the knife. Rose, w ho

saw Reese when he first o pened the d oor, lost sig h t of ReeseR E E S E V

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when he backed up into his apartment a nd after B rown fired
at him. Rose then advanced toward t h e d oorway and was surprised to see Reese standing in the apartment. Rose stated that he could not see Reese’s hands but upon seeing him, shot R e e s e in the c hest from three to five feet away

. Not a b l y , while the jury

found that Reese did not brandish the knife at Rose, they

also found that at the time Rose fired his shot, he did not see Reese’s hands.

Althoug h Reese g oes to g reat leng ths to remind this Court that we do not demand a case with “materially s i m i lar” factual circumstances o r even facts closely analog ous to his
case, Hope v

. P e l

z e r , 536 U.S. 730, 7 41 (2002), none o f Reese’s cited cases demo n s t r a te that the contours o f his F ourth Amendment r ig ht were sufficiently clear such that “any reasonable official in [ his] shoes would have u nderstood that he w as violating it.” City & County of San Francisco v

. Sheehan

, 135 S. Ct. 1765, 1774 (2015) (alteration in orig inal) (quoting Plumhoff v. Rickard

, 1 34 S. Ct. 2012, 2023 (2014)). Critically

, Reese points to no case that c onsidered the relevant question whether Deputy Rose, having come within striking distance of a suspect who had held a knife a fraction of a second before, was objectively unreasonable in using deadly force before determining w hether the suspect still possessed the knife. Compare W

ilkinson v

. T

orres , 610 F .3d 546, 551 (9th Cir. 2010) (holding that officer’s shooting of plaintiff did
not v iolate a c onstitutional rig h t where p laintiff ha d ig nored officer co m m a nds and was accelerating towards officer on foot); Smith v. City of

Hemet
, 394 F .3d 689, 693, 702, 704 n.7 (9th Cir. 2005) (en banc) (declining to address q ualified immunity , but concluding that a rational jury could find that officers’ use of pepper spray and a p olice canine on a p laintiff

was u nconstitutionally ex cessive where the “[ t] he record does
not reveal a

ny basis for believing that [plaintiff] w as armed,”R E E S E V

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where his w ife ha d i n fo r med officers that p laintiff “did not have a g u n, there were no weapons in the house, and he was clad in his pajamas”); H a r r i s v. Roderick

, 126 F .3d 1189, 1203 (9th Cir. 1 997), cert. denied

, 522 U.S. 1115 ( 1 998) ( f i n d i n g o f

f i c e r ’ s s h o o t i n g o f p l a i n t i f f o b j e c t i v el y unreasonable where the officer was “ safely ensconced on [ a] hill overlooking ” the cabin that plaintiff was running toward and the plaintif

f h a d made “[ n] o threatening movement

. . . with respect t o [ the shooting officer] or any one else, even after [ the officer] s h o t [ plaintiff’s friend] ”); Curnow By and Th r o u gh Curnow v. Ridgecrest Police

, 952 F .2d 321, 323, 325 (9th Cir. 1991) ( affirming d i s trict court’s denial o f officer’s motion for summary judg ment o n qualified immunity g rounds where the n on-moving plaintiff’s evidence showed that the plaintiff had not p oi n ted his g un at officers, his g un was not loaded, and he was not facing the o f ficer w ho opened fire).

R e e se relies on additional cases that p ost-date March 2011, when the incident occurred, but those decisions “could
not have g iven fair notice to [Deputy Rose] and are of no use in the clearly established inquiry .” Bro s s ea u v. Haugen
, 543 U .S. 194, 200 (2004). Even to the ex tent that those cases reflect clearly established case law that p re-dates March 2011, their factu a l c o n t ex ts make clear that the law was not clearly est a b l ished for the circumstances Deputy Rose confron t e d here. See Zion v. County o f Orange
, 874 F .3d 1072, 1076 (9th Cir. 2017) (holding e x cessive force was used if defendant o f

fi c e r fired a second round of close r ang e bullets at a plaintiff who was c urled up on the fl o o r a n d i njured from a first round of fire, and then subse q u e n t l y sto m p e d o n the plaintiff’s head); Longoria v. Pinal County
, 87 3 F. 3 d 699, 708–09, 710 (9th Cir. 2017) (holding that officer’s use of deadly f

orce could have violated a c lea r l yR E E S E V

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established rig ht if jury d et e r mined plaintiff who was surrounded b y law e nforcement a nd ha d not brandished a weapon during fo rty minutes of observation was in the
process of surrendering at t h e time of the shooting

, rather than assuming a shooting stance); Estate of Lopez by and Through Lopez v. Gelhaus

, 8 71 F .3d 998, 1021–22 (9th Cir. 2017) ( remanding f

or trial where the facts, viewed in the lig ht
most favorable to the non-m o v ing plaintiff in response to defendants’ motio n for summary judg ment on defense o f qualified immunity

, could show that th e force used was unreasonable because the v ictim n ever r aised th e p erceived
weapon or made a “harrowing g estur e ” w h en he turned toward the officers).

Moreover, Reese’s reliance o n our decision in Hughes v

. Ki s e l a , 862 F .3d 775 (9th Cir. 2016), only confirms that the law was not c learly established here. I n H ughes

, we reasoned that an officer’s shooting of a plaintiff who w as approaching

a third party while holding a kitchen knife at her side v iolated the plaintiff’s clearly e stablished righ t s, where the facts viewed in the plaintiff’s favor showed that she was not “ang ry

or menacing ,” officers knew only that she has been using the knife to carve a tree, and the p laintiff did not understand orders to drop the weapon. Id . at 785. A fter Reese’s appeal

was arg ued, the Supreme Court summarily r eversed our decision in Hughes

, co n c l u d i n g that it was “ far from an obvious case,” and that n on e of our precedents squarely
g overned the facts involved. K i s el a v

. Hughes

, 138 S. Ct. 1148, 1153 (2018). Given that Rose had g reater re a son to perceive a threat here, and no lux ury of time or dis t a n ce to discern whether Reese still posed such a threat, the Supreme Court’s decision in Kise la v. Hughes further illustrates that Rose is entitled to qualified immunity

.R E E S E V

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N o n e o f Reese’s cases “ squarely g overn” the situati o n that Rose confronted s u c h that they would have g iven Rose clear warning that his use of deadly force was objectiv ely unreasonable. Mullenix

, 136 S

. C t

. at 310 (quotation marks omitted). 1 Absent a showing by Reese that the r ig h t was clearly established at the time, Rose is entitled to qua l i fied immunity on the F ourth Amendment ex ce ssive force c laim. W e therefore aff

irm the district court’s ruling that Deputy Rose is entitled to qualified immunity on that claim.

B. Reese’s Bane Act Claim

Reese also c l a i m s t hat the district court erred when it
g ranted post-verdict summary judg ment to Defendants on his claim under California Civil Code section 52.1, known as the B ane Act. Reese asserts that the d istrict court properly rejected the D efendants’ p roposed ju r y i n struction on his B ane Act claim and therefore D efendants are n o t entitled to a new trial. W e disag ree.

The T om B ane Civil Rig hts Act, 19 8 7 Cal. Stat. 4544,

was enacted in 1987 to address hate crime s

. T h e B ane A ct civilly protects individuals from conduct aimed at interfering with rig hts that are secured b y federal o r state law, where the

1 W e also ag ree w ith t

h e district co u rt th at th e j u ry ’ s n eg ativ e an sw er to Qu estio n 1 4 (“ A t th e tim e Dep u ty R o se f ired h is sh o t, d id it ap p ear th at P lain tif f p o sed an im

m ed iate th reat o f

d eath o r serio u s p h y sical in

j u ry to Dep u ty Ro se? ”) w as u n h elp fu l t o t h e j u d g e’ s leg al q u estio n of w h eth er

an y “ reaso n ab le” o f

f icer w o u l d h av e u n d ersto o d th at t h e u se o f d ead ly f o rce w as at th at tim e p ro scrib ed b y clearly estab lish ed Fo u rth A m en d m en t ex cessiv e f

o rce law

. A s th e d istrict co u rt n o ted

, th e q u estio n d o es “ n o t sp ecif

y f ro m w h o se p ersp ectiv e it d i d ap p ear t h at Reese po s ed

an i m m ed iate th reat o f d eath o r serio u s p h y sical in j u ry to Ro se.” (Do c. 2 1 6 at 1 1).R E E S E V

. C O U N T Y O F S A C R

A M E N T O 17

interference is carried out “by threats, intimidation o r coercion.” S

ee V eneg a s v

. County of Los Angeles

, 63 Cal. Rptr. 3d 7 41, 7 4 2 ( C al. Ct. App. 2007). Section 52.1 “provides a cause of action for violations of a plaintiff’s state

or federal c ivil rig hts committed by ‘threats, intimidation, o r coercion.’” Chaudhry v. City of Los Angeles

, 7 51 F

. 3 d 1096, 110 5 ( 9 t h Cir. 2014) (quoting Cal. Civ. Code § 52.1). 2 Claims under section 52.1 may be broug ht a ga i n s t public of f i c i als w ho are a lleg ed to interfere with protected rig hts, and qualified immunity is not a vailable for those claims. See Venegas
, 63 Cal. Rptr. 3d a t 753. Reese alleg ed a B ane Act violation b ased upon the same facts as his F ourth A mendment

ex c e ssive force claim.

B e fore trial, Defen dants moved for summary judg ment, arg uing that a B ane Act claim required a showing of threats, intimidation or coercion in addition to the elements r equired
to establish a violation of the F ourth A m e n dment. The district judg e who ruled on the motion ( who w as not the trial judg e) denied the motion based on Chaudhry

, which held that section 52.1 “does not require proof of discriminatory intent” and “that a successful c laim for ex c essive force under the F ourth Amendment provides the basis for a successful claim under § 52.1.” 751 F .3d at 1105.

L ikewise, at the conclusion o f trial, the district court rejected Defendants’ p roposed alternative California Civil

2 Ch a ud h ry relied o n Ca mero n v. Cra ig
, 7 1 3 F.3 d 1 0 1 2
, 1 02 2 (9 th Cir. 2 0 1 3 ) f

o r t h e p ro p o sitio n th at “ th e elem en ts o f [an ] ex cessiv e f orce claim u n d er § 5 2 .1 are th e sam e as u n der § 1 9 8 3.” Id

.R E E S E V

. C O U N T Y O F S A C R

A M E N T O 18

J ury I n struction [ CACI ] 3066 3 on the B ane Act. I n r e -urg ing their positi on, Defendants arg u ed that Reese’s proposed instruction eviscerates the requirement in CACI 3066 that additional elements are necessary to prove a B ane Act claim bec au s e his instruction is “essentially amounting to a passthrough w here there’s a F o urth Amendment violation
say ing that if there’s a F ourth A mendment violation, there’s also a B ane Act v iolation.” Th e d istrict court summarily

ex p lained that Defendants’ arg ument had previou sly been rejected on s u m mary judg ment and “ I ’ m g oing to reject it too.” T herefore, the district court instructed the jury a s follows: “I f y ou determine that Plaintiff pre v ails on his F ourth Amendment ex cessive force claim ag ainst Defendant B rown and/or D efendant Rose, then Plaintiff also prevails on his B ane Act claim ag a inst that De fe n dant or Defendants.” The jury found for Reese and a ga i n s t Deputy Rose and the County on the B ane Act claim.

3 T h e ap p licab le 3 06 6 in s tru ctio n read s :

[P lain tif f ] claim s th at [ d ef

en d an t] in ten tio n ally in terf ered w ith [o r attem

p ted to i n terf

ere w ith ] [h is/h er] civ i l rig h ts b y t

h reats, in tim id atio n , o r co ercio n

. T o

es t a b l i sh th is claim

, [p lain tif f ] m u st p ro v e all o f th e f o llo w in g :

1

. T h at [ d e f

en d an t] acted v io len tly ag ain st [p lain tif f ]/ [an d ][ p lain t if

f ]’ s p ro p erty ] [to p rev en t [h im /h er] f ro m e x ercisin g [h is/h er] rig h t [in s ert rig h t]/to r e taliate ag ain s t [p lain t if f ] f o r h av in g

ex ercised [h is/h er] rig h t [in sert rig h t]];]

2 . T h at [p lain tif

f ] w as h arm ed ; an d

3

. T h a t [d ef

en d an t]' s co n d u ct w as a su b stan tial f acto r in cau s in g [p lain tif

f ]' s h arm

.R E E S E V

. C O U N T Y O F S A C R

A M E N T O 19

I n their request for a n ew trial, Defendants claimed that the trial court erred when it declined to g ive their CACI 3066 instruction. I n addition to reasserting the arg uments made in their summary judg ment motion, Defendants also attempted
to disting uish Chaudhry from this case stating “contrary to Defendants in this case ‘[ t] he City defendants [ in Chaudhry ] conceded in their brief

. . . t h a t a successful claim for

ex c e ssive force under the F ourth Amendment provides the basis for a successful claim under § 52.1.’” The Defendants bolstered their position with several district court cases that held that the B ane Act does no t apply to an alleg a tion o f

ex c e ssive f

o rce without a showing that the act was done to interfere with a separate state or fe d e r al constitutional rig ht. Thus, Defendants asserted that Chaudhry “does not equate to

a correct a

pplication of § 52.1” and a new trial with a CACI 3066 instruction was required.

Convinced by the Defendants’ arg uments, the district

c ourt chang ed its mind. The court concluded that the Defendants were correc t in their arg ument that their
p r oposed instruction should have been g iven. T h e co u r t pronounced that because the evidenti a r y r ecord is complete

on the B ane A ct claim, rather than g ranting a new trial, the
court would issue an amended judg ment in f a v o r o f Defendants on the B ane Act claim.

I n ex p laining its ruling th e district court stated that “California Appellate Court authority reveals: The B ane A ct ‘requires a showing of coercion independent from the coercion inherent in [ cons t itutional violation] itself.’” The district court found that the evidence in this c a se did not, therefore, support this B ane Act element. The court relied on Shoyoye v. County of Los A n g e les

, which held that “where coercion i s i n h erent in the constitutional violation a lleg ed,R E E S E V

. C O U N T Y O F S A C R

A M E N T O 20

i.e., a n overdetention in County jail, the [ B ane Act] statutory requirement of ‘threats, intimidation, or coercion’ is not met” and that “ [ t] he statute requires a showing o f coercion independent from the c oercion inherent in the w ron gf u l detention itself.” 137 Cal. R p t r

. 3d 839, 849 (Cal. Ct. App. 2012).

W e find that the district court erred in g ranting summary judg ment to the Defendants. W e note that at the time that the district court issued its sua sponte summary judg ment order, it observed that “no California Appellate Court decision addressed whether ex cessive f orce alone - ‘t h e use o f

ex c e ssive force durin g a n otherwise lawful arrest,’ - is sufficient t o s u s tain a B ane Act violation[ .] ” (Doc. 216 at 27). Thus, the district court relied on what it determined were persuasive decisions, including Shoyoye

, t hat ex plain that more is required. The district court’s reliance on Shoyoye is misplaced, however. F irst, Shoyoye is disting uishable from Reese’s ex cessive force claim because it involved a claim o f
wrong ful detention. Chaudhry

, upon which the prior court relied when it initially denied Defendants’ summa r y judg ment motion, is an ex cessive force case. Moreover, Chaudhry was decided two y ears after Shoyoye and since the Chaudhry decision, district courts have larg ely interpreted it
to mean that section 5 2.1 does not require a showing o f “threats, i n t i midation a n d coercion” separate f rom an underly ing constitutional violation. See, e.g. , Rodriguez v. County of Los Angeles

, 9 6 F

. Supp. 3d 990, 999 (C

. D

. Cal. 2014) ( disting uishing Shoyoye by interpreting it to apply only when the constitutional violation is unintentional); Boarman

v. County o

f S acramento , 55 F

. Supp. 3d 1271, 1287 (E.D. Cal. 2014) (apply ing Chaudhry an d h o l ding that the plaintiff’s B a

ne Act claim based on ex cessive f orce survived
summary judg ment b ecause the e l e ments of such a claimR E E S E V

. C O U N T Y O F S A C R

A M E N T O 21

under section 52.1 are the same as under § 1983); Barragan

v. City of Eurek

a , N o. 1 5-cv-02070-W HO, 2 0 16 W L 4549130, at *8 (N

. D

. Cal. Sept. 1, 2016) (ag reeing with Chaudhry that the elements of an ex cessive force claim under § 1983 establish the elements of a B ane A ct claim and that no additional elements are required).

Althoug h there are ample federal district court cases that interpret Chaudhry in a way that is c o n trary to the district court’s d ecision here, to be sur e, the district court is not bound b y those decisions. However, w here “there is relevant precedent f

rom the state’s intermediate appellate court, the federal court must f

ollow the state intermedi a t e appellate
court d ecision unless th e federal court finds convincing evidence that the state’s s u p r e me court likely would not follow it.” R

yman v. S

ears, Roebuc k & Co.
, 505 F .3d 993, 994 (9th Cir. 2007) ( emphasis omi tted). Until recently

, California’s appellate court g uidance ha d not squarely addressed whether in an ex cessive forc e c a s e the B ane A ct requires a separate showing of coercion bey ond that inherent in the use of force. Reese’s supplemental authority however,
p rovides us with that g uidance which we are now b o u n d t o apply

.

I n Cornell v. City and County o f San Francisco
, th e California Court of Appeal recog niz ed that B ane Act claims

are routinely a lleg ed in Sectio n 1 983 c laims under federal pendent jurisdi c tion and that “[ t] he B a n e Act’s r equirement that interference with rig hts must be accomplished b y threats[

, ] intimidation or coercion ‘has been the source o f much debate and con f

u s i o n.’” 225 Cal. Rptr. 3d 356, 384 (Cal. Ct. App. 2 017) (cita t i o n s omitted). T h us, the court announced its endeavor to p r ovide cla r i t y

. I n so doing

, the
court ex amined Shoyoye ’s conclusion that the section 52.1R E E S E V

. C O U N T Y O F S A C R

A M E N T O 22

claim r equired a showing o f coercion independent of the coercion inh e r e n t in the wrong f u l detention at issue in that

case. Concluding that Shoyoye was limited to cases involving

mere neg lig ence, the court in Cornell r uled that “[ n] othing in the tex t of the statute r equires that the offending ‘threat, intimid a tion or coercion’ be ‘independent’ f rom the constitutional violation alleg ed.” Cornell

, 225 Cal. Rptr. 3d
at 3 83. The court ag reed “that the use of ex cessive force can be enoug h to satisfy the ‘ threat, intimidation or coercion’ element of Section 52.1.’” Id. at 382.

Cornell also makes clear, however, tha t the B a ne A ct imposes an a d ditional requirement bey ond a finding of a constitutional violation. C o rnell ex plained that “[ p ] roperly read, the statutory p h r a se ‘threat, intimidation or coercion’

serves a s an ag g ravator justify ing the con c l u s i o n that the underly ing violation o f rig hts is sufficiently eg reg ious to warrant e nhanced statutory remedies, bey ond tort relief.” Id.
at 383. According ly

, Cornell held that “the eg reg iousness required b y Section 52.1 is tested by whether the circumstances indicate the arresting o ff i cer had a specific intent to viol a t e t h e arrestee’s rig ht to freedom from unreasonable seiz ure.” Id. at 384. I n so holding

, Cornell adopted the specifi c i ntent standard established in Screws v

. United States
, 325 U.S. 91 (1945), for asses s i n g criminal violations o f f

e d eral c ivil rig hts. 4 2 25 Cal. Rptr. 3d at 384–85.

4 Co rn ell ack

n o w led g ed t

h at Sectio n 5 2 .1 is civ il

, w h i le th e f ed eral law s to w h i c h S c r e ws ap p lies, 1 8 U.S.C. § § 2 4 1 an d 24 2
, are crim i n al. 2 2 5 Cal. Rp tr. 3 d at 3 85

. B u t g iv en th eir stru ctu ral sim ilarities, Co r n e l l

co n clu d ed th at, th o u g h “ t

h e b u rd en o f pro o f is f

u n d am en tally d if

f eren t in th ese tw o aren as

. . . w e s ee n o r e a so n w h y th e ap p licab le m en s rea elem en t o u g h t

to d if f er.” Id

.R E E S E V

. C O U N T Y O F S A C R

A M E N T O 23

Thus, b ased on the weig ht of this new state authority

, a nd

our oblig ation to c o nsider the California Court of Appeal’s thoroug h analy sis o f its own law, we draw two conclusions a s to the necessary

showing for an ex cessive force claim under the B ane Act. F irst, the Ba n e A ct does not require the “threat, intimidation or coercion” element of the claim to be transactionally independent from the c onstitutional violation alleg ed. Cornell

, 225 Cal. Rptr. 3d at 38 2

– 8 3

. Second, the B ane Act requires a “a specific intent to v iolate the arrestee’s rig ht to freedom from unreasonable seiz ure.” Id. at 384.

W e see no “convincing evidence that the state’s supreme court likely w ould not follow” Cornell in reaching these two conclusions. Ryman
, 505 F .3d at 9 94. As to the r equirement of coercion independent f rom the constituti o n al violation, Cornell correctly notes that the plain lang uag e of Section 52.1
g ives no indication that the “threat, intimidation, or c oercion”
must be independent from the constitutional v i o lation. See Cornell

, 225 Cal. Rptr. 3d at 383. Mor e o v e r , in the two California Supreme Court cases to apply Section 52.1 in the F ourth Amendment contex t, neither g ave any indication of an independent coercion requirement. I n Venegas v. County of Los Angeles

, the California Supreme Court, in holding that a Section 5 2.1 plaintiff need not be a member of a protected class, f o u n d that plaintiffs had “adequately stated a cause o f action under section 52.1” where t h ey alleg ed warrantless, unconsented searches and unlawful detention. 8 7 P.3d 1, 3–4, 14 (Cal. 2004). I n Jones v. Kmart Corp.
, the court h eld that the plaintiff could not bring a Fo urth A mendment

ex c e ssive force claim ag a inst a private security g u ard because the lack of a state actor meant there was no constitutional violation, but d id not sug g est that some coercion independentR E E S E V

. C O U N T Y O F S A C R

A M E N T O 24

of the alleg ed ex cessive force was r e q u ired. 949 P.2d 941, 942, 944 (Cal 2004). 5

Similarly

, the specific i n tent requirement articulated in Cornell is consistent with the lang uag e of Section 52.1, which requires interference w i th rig hts by “ threat, intimidation o r coercion,” words which c onnote an e lement of intent. This is also r eflected in California’s model jury instruction, CACI 3066, whi ch characteriz es a B a ne Act claim as one by the plaintiff that the defendant “ intentionally interfered with [ o r attempted to interfere with] [ his/he r ] ci vil rig hts by threats, intimidation, or coercion.” CACI 3066 (emphasis added); see also Cornell

, 225 Cal. Rptr. 3d at 387 (approving u se o f CACI 3066 be c a use it “properly f ocused the jury on intentional violation o f Co r n e l l’s rig h t to be free from unreasonable seiz ure”). As a bove, we o bserve that the F ourth Amendment claims asserted in Venegas and Jones are not inconsistent with Cornell ’s approach.

T h o u gh we have previously stated that “the elements of the ex cessive force claim under § 5 2.1 are the same as under § 1983,” Chaudhry

, 751 F .3d a t 1 1 0 5 (quoting Cameron
, 713 F

. 3d a t 1022), we do not read those cases as contradicting the intent requirement articulated in Cornell

. I n Cameron
, we

n o t ed that the plaintiff “assert[ ed] no California rig ht different f

rom the rig hts g uaranteed under the F ourth Amendment,” 713 F .3d at 102 2
, a n d so concluded that the

5 T o th e ex t en t th at w e p rev io u sly f o llo w ed S

h oyo ye in c o n c lu d in g th at “ a p l a i n tif

f in a search

- an d

- seizu re case m u s t alleg e th reats or

co ercio n b ey o n d th e co ercio n

in h eren t in

a d eten tio n

o r search ,” Lya ll v. City o f Lo s An g eles

, 8 0 7 F.3 d 1 1 7 8
, 1 1 9 6 (9 th Cir. 2 01 5 ), w e are n o w g u id ed b y Co rn ell to in t e r p r e t S ho yo ye ’ s h o ld in g as lim ited to cases in v o lv in g m ere n eg lig en ce, see Co rn ell , 2 2 5 Cal. Rp tr. 3 d at 3 81

– 8 2

.R E E S E V

. C O U N T Y O F S A C R

A M E N T O 25

elements of the ex cessive force claim w e r e the same, citing

our prior observation in Reynolds v. County of San Diego that “[ s] ection 52.1 does n ot p rovide any substantive protections; instead, it e n a b l e s individuals to sue for damag es as a result of constitutional violat i o n s .” Cameron
, 713 F .3d at 1022 (quoting R e

ynolds

, 84 F .3d 1162, 1170 ( 9th Cir. 1996), overruled on other grounds

, Acri v. Varian Assocs., Inc.
, 114 F .3d 999, 1000 (9th Cir. 1997)). T hus, Cameron was concerned with the nature of the elements o f the p r e d i cate constituti o n al v iolation a sserted under § 1983 and the B ane Act, but d id n ot address whether the B ane Act required some show i n g o f intent in addition to showing the constitutional violation. Chaudhry h ad no occa s i on to address the issue either, as the defendants there c onceded tha t t h e elements were the same. 751 F .3d at 1105.

Apply ing these principles h ere, we conclu d e that the district court’s jury instructions were erroneous. The district
court instructed the jury that if Reese prevailed on his F ourth Amendment claim, then he also prevailed on his Ba n e A ct claim. B ut the jury did not consider Deputy Rose’s intent in its finding that he violated Reese’s F ourth Amendment rig hts. See Graham v

. Connor
, 490 U.S. 386, 397 (1989) (“[ T] he ‘reasonableness’ inqui ry i n a n e x cessive force case is

. . . whether the o fficers’ actions are ‘objectively reasonable’ in lig ht of the facts and circumstances confronting them, without
reg ard to their underly ing intent or motivation.”). As we have

ex p l ained in apply ing the S crews specific intent standard to

an ex cessive fo r c e violation o f 18 U.S.C. § 242, 6 “a mere

6 In relev an t p art, 1 8 U.S.C. § 2 42 ap p lies t o “ W h oev er, u n d er co lo r

o f an y law

, s tatu t e, o rd in an ce, reg u l atio n , o r cu sto m , w illf u lly su b j ects an y p erso n in an y State, T errito ry , Co m m o n w ealth

, Po ssessio n , o r District toR E E S E V

. C O U N T Y O F S A C R

A M E N T O 26

i n tention to use force that the jury ultimately fin d s

u n r e a s o n a b l e

— t h a t i s , g e n e r a l c r i m i n a l i n t e n t

— i s insuffi c i ent.” United States v. Reese
, 2 F

. 3 d 870, 885 (9th Cir. 1 993). Rather, the jur y m u s t find that the defendants “intended not only the f o rc e , but its unreasonableness, its character as ‘more than necessary under the circumstances.’” Id. B ut it is not necessary for the defendants t o have been “thinking in constitutional or legal terms at the time of the incidents, because a reckless d i s r e g ard for a person’s constitutional r ig hts is e vidence of a specific intent to deprive that person of those rig hts.” Id. B ecause the district court’s B ane A c t j u ry instruction d id not require this inquiry into Deputy Rose’s intent, it was incorr ec t

. The district court’s post-trial o r d e r correctly recog niz ed that Defendants’ proposed jury instr u c tion, CACI 3066, should h ave been
g iven, see Cornell , 225 Cal. Rptr. at 386–87.

I n addition to g iving an incorrect jury instruction, the district court erred when it issued its po s t -t ri a l g rant o f
summary ju dg ment to Defendants on the B ane Act c laim. T he district court’s decision was based on an errone o u s conclusion that the B ane Act require d coercion independent from the constitutional violation. Althou gh t h ere w a s no evidence of coercion independent from Deputy Rose’s use o f objectively unreasonable force, we cannot conclude from the record that, taking the evidence in the lig ht most favorable to Reese, no reasonable jury could find that Deputy Rose had a specific intent to violate Reese’s F ourth Amendment rig hts. See Nozzi v. H

ousing Auth. of C i t

y of L.A.
, 806 F .3d 1178,

th e d ep riv atio n of an y rig h ts , p r i v i leg es, o r im m u n ities s ecu red or p ro tected b y

th e Co n stitu

tio n o r law s o f

th e Un ited States. . . .”R E E S E V

. C O U N T Y O F S A C R

A M E N T O 27

1199–200 ( 9th Cir. 2015). The decision is therefore reversed and Reese’s B a

ne Act claim is remanded for a new trial. 7

II. Def endants’ Cross-Appeals

A. Heck v. Hum

phrey , 512 U.S. 477 (1994) does not bar Reese’s claim s.

Prior to trial, Reese e ntered a “no contest” plea to a misdemeanor charg e that he vi o l a t ed California Penal Code § 417(a)(1) for drawing or ex hibiting a deadly weapon, other than a firearm, “in a rude, ang ry , or threatening manner,” thus disposing of his orig inal charg e of Assault with a Deadly W e a pon. 8 Under Heck v. Humphrey

, 512 U.S. 477, 487 (1994), “[ w] hen a plaintiff who has been convicted of a crime under state la w s e e k s d amag es in a § 1983 suit, ‘the district
court must consider whether a jud gm e nt in favor of the plaintiff would necessarily imply the i n v a lidity of his conviction o r sentence.’” Hooper v. C o unty of San Diego
, 629 F .3d 1127, 1130 (9th Cir. 2011) (quoting Heck

, 512 U.S.
at 487)

. I f i t w o u ld, the civil action is barred. Id. ; see also Y o unt v

. City of Sacramento
, 183 P.3d 4 71
, 4 8 4 (Cal 2 008) (ex tending Heck to California state law claims). Defendants
arg ue that Reese’s misdemeanor conviction b a r s h is c laims

7 T h e j u ry also f o u n d th e d ep u ty an d Co u n ty liab le f o r b attery u n der
state law

, an d th e d am ag es aw ard w as th eref o re u n af f ected b y th e d istrict

co u rt’ s d ecisio n to g ran t su m m ary j u d g m en t o n t

h e B an e A ct claim

, o th er th an a red u ctio n o f $ 2 1 ,1 7 5 .0 0 f or p ast m ed ical ex p en ses t h at h ad alread y b een p aid o n Reese’ s b eh alf u n d er th e Co u n ty In dig en t P ro g ram

. B ecau s e

w e d o n o t rein state th e j u ry v erd ict o n Reese’ s B an e A ct claim

, w e d o n o t

reco n sid er t

h e d istrict co u rt’ s d en ial o f h is m o t io n f o r atto rn ey ’ s f

ees an d

co sts.

8 Calif o rn ia P en al Co d e § 2 4 5 (c).R E E S E V

. C O U N T Y O F S A C R

A M E N T O 28

because the claims n ecessarily imply the invalidity of his conviction.

Reese c ounters that Defendants d id n ot produce evidence
at trial to show the factual basis for Reese’s no contest plea. D e f e n dants rely upon Reese’s trial testimony

, which they characteriz e as stating that he “display ed/brandished the knife when he opened the door, b ut deni ed it was ang r y o r threatening

, a

nd could not say whether the manner of display

was ‘not p olite.’” Reese points out, however, that there a re other instances of conduct that could have formed the f actual basis for his misdemeanor conviction including evidence that he ex hibited a knife to B rittany S h u r t l e ff in an ang ry o r threatening manner before the Deputies arrived. The district
court f ound that even if Reese’s misdemeanor conviction was based on a finding of “ rudeness,” his trial testimony did not invalidate that conviction finding

. 9 I n additio n , t he district
court f ound that Defendants failed to show that the victim o r victims of the c onviction were any of the officers involved in Reese’s action.

W e ag r ee. Defendants have n o t d emonstrated that Reese’s claims in this action are barred b y Heck

. Defendants have identified not h i n g in the record that shows the specific factual b asis for Reese’s misdemeanor conviction. W ithout such information, this Court c an n o t determine that Reese’s claim of ex cessive force in this c ase would call into question the validity of h is misdemeanor w e a p o n conviction. See Smith

, 394 F .3d at 698–99. T h e d istrict court’s r u ling is affirmed.

9 Co n trary to Def

en d an ts’ assertio n s, th at Reese d en i ed raisin g th e k n if e to S h u rtlef

f in h is civ il trial testim o n y d o es n o t n ecessarily m ean th at th is w as n o t th e b asis f

or h is crim in al co n

v ictio n

.R E E S E V

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B. The jury’s aw ard of $150,000.00 f or f uture noneconom ic loss w as supported by subst antial evidence.

Defendants challeng e the district c ourt’s ruling that upheld the jury ’s award of $150,000.00 to Reese for future non-economic loss. T h ey c o n t e n d there was no evidence at trial of future n o n-economic losses. They arg ue that “[ a] t most, the jur y was shown a visible phy sical scar, but there

was n o testimony that future care was needed, no t estimony that the scar c aused any sort o f anx iety

, mental disturbance o r other non-economic loss.”

The district court cited two district court cases and a California Supreme Court case in determining that “[ a] wards fo r n on-economic damag es, which included pain a nd suffering

, c an be supported by a fin ding of p ermanent

s carring .” The d istrict court then found that “[ i] n lig ht of Reese’s scarring

, a

n inference can reasona

b l y be drawn that he will c ontinue to endure suffering ” a n d that Defendants failed to show this p ortion of the judg ment should be amended.

“A jury ’s v erdict, including a damag es award, m u s t be upheld if supported by ‘ s ubstantial evidence.’” Freitag v

. Ayers
, 468 F

. 3d 528, 5 37 (9th Cir. 2 006), cert. denied

, 549 U.S. 1 323 (2007). “Substantial e vidence is such relevant evidence a s reasonable minds mig h t accept as adequate to support a c onclusion even if it is po s s i b l e to draw two inconsistent conclusions from the evidence.” Landes Const. Co. v. Royal Bank of Canada

, 833 F

. 2 d 1365, 1371 (9th Cir. 1987). Substantial d eference is afforded to a jury ’s finding o f
t he appropriate amount of damag es. U nited States v

. C

B & I Constructors, Inc. , 685 F .3d 827, 839 (9th Cir. 2012).R E E S E V

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R e es e showed the jury multiple scars on his body th at

r esulted from the surg e r ies h e u nderwent after being sho t

. Even if the only evidence in support of Ree s e ’ s n oneconomic damag es was h is multiple scars and a ny inferences d rawn therefrom, D efendants have not demonstrated it w a s

error for the district c o u rt t o co n clude that was sufficient to uphold the amount awarded for non-economic damag es. The district court’s decision on this issue is affirmed.

C. Any erro r in t he jury instruction on Reese’s F ourth Am endm ent claim that authorized liability if “Def endant shot at a nd/or shot the plaintif f ” was harm less.

Defendants nex t con t end the district court, over their ob j ection, g ave an erroneous jury instruction providing that

a F ourth Amendment violation could be shown by proving that one o f the Defendants “shot at and/or shot the plaintiff,”
among other elements. Defendants arg ue “[ t] his constituted prejudicial error by skewing the burden of proof at trial.” Defendants arg u e that merely shooting at someone i s insufficient to constitute a seiz ure.

The Court need not decide whether the instruct ion was

e rroneous because any error was rendered h armless by the jury ’s verdict. I n their a

n swers to the special interrog atories, the jury f ound that the round fired f rom Deputy B rown’s rifle did not h it Reese but the round fired by Deputy R ose did. Corresponding ly

, the jury found a F ourth A mendment violation by Deputy Rose but n o t Deputy B rown. Thus, to the

ex tent Deputy B rown could have been found liable u nder the F ourth Amendment for merely shooting at Reese rather than shooting and hitting him, the jury ’s finding s prevented any harm from the potentially erroneous instruction. Thus, evenR E E S E V

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if the district c ourt erred in g iving that instruction, the error was harmless.

D. The district court did not abuse its discretion w hen it f ailed to exclude certain testim ony by Reese’s expert, and certain t estim ony by Def endants’ expert elicited on cross-exam ination.

D e fendants nex t arg ue the district court abuse d i t s discretion b y failing to ex clude t estimony by Reese’s ex pert that a p a r ticular set of circumstances represented a “don’t shoot scenario.” The district court overruled Defendants’ objection at trial that the question p resented a n incomplete hy pothetical and invaded the province of the jury

. Citing no leg al authority

, Defendants arg ue the evide n ce should have been ex cluded.

“W e review the district court’s evide n t iary decisions for abuse of discretion, and the a p pellant is

. . . required to establish that the error w as prejudicia l

. ” Ambat v. City & County o f S a n Francisco
, 7 57 F .3d 1017, 1032 (9th Cir. 2014) (alteration in orig inal) ( q u o t i ng Allstate Ins. Co. v

. Herron , 634 F .3d 1101, 1110 (9th Cir. 2011)).

As to the arg ument that the hy pothetical was incomplete in that it referred to Reese b eing unarmed after he backed up into the apartment , t h e j u ry was not required to accept the de s c r i b e d scenario as true and, in fact, made a finding that Deputy Rose did not see Reese’s hands when he shot him. A s to the arg ument that the ex pert’s a nswer invaded the province of the jury in that it addressed the ultimate issue, Defendants have not shown prejudicial e r ror. As a g eneral rule, “[ a] n opinion is not objectiona b l e j u st b ecause it embraces anR E E S E V

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u l t i m a te issue.” F e d. R. Evid. 704(a). The district cour t ’s ruling on this issue is therefore affirmed.

Defendants also challen ge t h e district judg e’s f a ilure to sustain objections to que s t i o ns asked of Defendants’ ex pert by Reese’s counsel. The questions addressed scenarios pertaining to whether Deputy Rose saw Reese’s hands when he shot him. A g ain, g iven the jury ’s find i n g o n this issue, Defendants have failed to show prejudicial error, as the district court determined. The district court’s r u ling is affirmed.

E. The district court did not err in excluding the deposition testim ony of a def ense w itness w ho did not appear in court to testif y.

Nex t, Defendants arg ue the district court erred in

ex c luding from the trial deposition t e s t i mony of B rittany Shurtleff, a witness who Defendants claim was “unavailable” under the F ederal Rules of E v idence. Defe n d a nts contend they successfully served a subpoena on the witness and made reasonable, g ood faith efforts to procure her presence.

The d istrict court d etermin e d t h a t d e fense counsel, despite being a ware the witness did not i n t end to appear in court, fail e d t o make additional reasonable efforts in the time leading up to trial to ensure the witness’s appearance in court. The district c ourt therefore concluded there was no b asis “to justify f inding her unavailable under Fe d er al Rule o f Evidence 804(a)(5).”

L ikewise, Defendants here simply assert that couns el made reasonable, g ood faith efforts t o p r o c ure the witness’s
presence but they f

ail t o e x p lain what those efforts were.R E E S E V

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Absent any e vidence of actual reasonable, g ood faith efforts
to ensure th e w itness’s appearance, Defendants have not demonstrated that the district court abused its discretion. The district court’s ruling is therefore affirmed.

AF F IRMED IN P ART, and R E V E R SED AND REMANDED IN P ART. Each par t y shall pay its ow n costs on appeal.