FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TRACY WATSON; RENEE STALKER;

PAM STALKER, as Guardian Ad

Litem for O.S.; S.W.; and R.W.;

minors,

Plaintiffs-Appellants,

v.

CITY OF SAN JOSE, San Jose Police

Department; WILLIAM HOYT; CRAIG

BLANK,

Defendants-Appellees.

No. 13-15019

D.C. No.

5:06-cv-04029-

RMW

OPINION

Appeal from the United States District Court

for the Northern District of California

Ronald M. Whyte, Senior District Judge, Presiding

Argued and Submitted

February 13, 2015—San Francisco California

Filed September 8, 2015

Before: M. Margaret McKeown, William A. Fletcher,

and Richard R. Clifton, Circuit Judges.

Opinion by Judge Clifton
2 WATSON V. CITY OF SAN JOSE

SUMMARY*

Civil Rights

The panel affirmed the district court’s decision to grant a

new jury trial on compensatory and punitive damages in an

action brought pursuant to 42 U.S.C. § 1983 against two San

Jose police officers after the officers took plaintiffs’ minor

children into protective custody without a warrant or court

order.

The panel held that because the jury instructions in the

first trial may have permitted the jury to improperly award

damages for deprivations for which defendants were not

responsible, the district court did not err by concluding that

a new trial was warranted. The panel agreed with the district

court that the $3 million in damages awarded by the first jury

indicated that the jury improperly awarded damages for the

fact of separation of the children from their parents after a

juvenile court entered a removal order. The panel held that

the juvenile court order meant that the separation of the

family was inevitable and could not be attributed to the police

officers, and plaintiffs did not refute that proposition. 

Therefore, even if the jury concluded that the separation prior

to the court order was not justified, the amount awarded by

the first jury did not reasonably reflect the actual injury

suffered as a result of a separation of five or six days, given

that the separation for the 17 months that followed was lawful

and would have occurred anyway.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
WATSON V. CITY OF SAN JOSE 3

COUNSEL

Peter Johnson (argued), Law Offices of Johnson & Johnson,

Walnut Creek, California, for Plaintiffs-Appellants.

Clifford S. Greenberg (argued), Senior DeputyCityAttorney,

Nora Frimann, Assistant City Attorney, and Richard Doyle,

City Attorney, San Jose City Attorney’s Office, San Jose,

California, for Defendants-Appellees.

Donnie R. Cox, Oceanside, California, for Amicus Curiae

Pacific Justice Institute.

OPINION

CLIFTON, Circuit Judge:

Tracy Watson, Renee Stalker, and their three minor

children appeal the district court’s decision to grant a new

jury trial on compensatory and punitive damages arising from

their claims against San Jose police officers William Hoyt

and Craig Blank. The officers took the children into

protective custody without a warrant or court order, violating

the constitutional rights of the family members. After the

jury in the first trial awarded over $3 million in damages, the

district court granted a new trial with respect to damages

based on its inference that the jury may have impermissibly

awarded damages for injuries that would have been suffered

absent the constitutional violation. Plaintiffs argue that the

district court abused its discretion by granting a new trial and

that the initial award of damages should be reinstated. We

conclude that the district court did not abuse its discretion in
4 WATSON V. CITY OF SAN JOSE

ordering the new trial. Accordingly, we affirm the judgment

entered by the district court following the second trial.1

I. Background2

Plaintiffs Tracy Watson and Renee Stalker were married

and had three children, who will be identified by their first

initials: O (an eight-year-old girl), S (a three-year-old boy),

and R (a one-year-old boy). The children are also plaintiffs

in this action, through their guardian ad litem Pam Stalker.

On May 26, 2005, a teacher at O’s school contacted the

Santa Clara County Department of Family and Children’s

Services (DFCS), alleging that O exhibited conduct raising

suspicion that she suffered from sexual abuse. DFCS

assigned a social worker to the case, but the matter was not

designated as urgent and the agency did not otherwise

indicate that immediate removal of the children was

warranted. When the first social worker went on vacation,

the case was assigned to a second social worker.

Approximately one month passed without either social

worker meeting with the parents or visiting the family’s

1 As described below, the jury in the first trial found that the City of San

Jose was not liable for the injuries suffered by Plaintiffs but that the two

police officers were each individually liable. The district court granted a

new trial but only as to the amount of damages, not as to the fact of

liability for the violation of constitutional rights by Hoyt and Blank. The

second trial proceeded from that point. Neither Plaintiffs nor Defendants

challenge the liability verdicts.

2 Because the case was tried before a jury, we state the facts and

interpret the evidence in the light most favorable to the party that was

successful at trial, in this case, the Plaintiffs. See Bains LLC v. Arco

Products Co., 405 F.3d 764, 766 (9th Cir. 2005).
WATSON V. CITY OF SAN JOSE 5

home, despite several attempts to arrange a meeting. On June

27, the second social worker faxed a report of the allegations

of sexual abuse and the failed attempts to connect with the

parents to the San Jose Police Department.

On June 29, the Police Department assigned the case to

Detective Hoyt. Hoyt’s supervisor was Sergeant Blank, who

briefly met with the social worker then assigned to O’s case. 

That same day, Blank, Hoyt, and approximately five

uniformed officers went to the family’s house.3 O was not at

home, so Blank called Watson, leading to a disagreement

between them over where the officers would interview O. 

Watson did not bring O to the house. In response, the officers

removed S and R from the home, though they did not have a

warrant authorizing them to do so.4

The next day, on June 30, O and her mother arrived at the

police station, and the police officers interviewed O. 

Although O denied being abused by her father or anyone else,

the police took custody of her as well. She was taken to a

children’s shelter.

The following day, on July 1, DFCS filed petitions with

the juvenile court pursuant to California Welfare and

Institutions Code § 300, which allows that court to declare

that a child is a dependent of the court and to order removal

3 The jury later concluded that Hoyt and Blank failed to conduct a

reasonable investigation into the allegations of sexual abuse before

deciding to visit the home. That verdict is not challenged on appeal.

4 The jury concluded that the officers did not have exigent circumstances

to remove the boys from the home, a conclusion that has not been

challenged on appeal.
6 WATSON V. CITY OF SAN JOSE

of the child from the custody of the parents if the child has

suffered or has a substantial risk of suffering abuse. 

Defendants contend that the allegations contained in the

petitions were the same allegations presented to the officers

by DFCS.

Four days later, on July 5,5

the juvenile court found that

the “continuance of the children in the home of their parents

is contrary to their welfare.” Based on that order, the parents

were deprived of custody and the children were held by the

state beginning July 5, 2005 until they were returned to their

parents 17 months later, in November of 2006.6 Plaintiffs do

not in this appeal dispute that the children were legitimately

held by the state from July 5, 2005.

Plaintiffs filed a civil lawsuit in federal court under

42 U.S.C. § 1983, claiming injuries from the warrantless

seizure of the children by the police officers. The case was

tried by a jury in 2011. At that point, the only defendants

remaining in the action were Hoyt, Blank, and the City of San

Jose.7 The jury found that Hoyt and Blank violated Plaintiffs’

5

July 5, 2005 was a Tuesday. Because of the July 4 holiday, it was the

first business day following the filing of the petitions with the juvenile

court on Friday, July 1.

6 After conducting additional evidentiary and custody hearings, the

juvenile court determined that O had been sexually abused, and that S and

R were in danger of abuse. The California Court of Appeal affirmed the

juvenile court’s orders.

7 Many additional defendants were originally named in that action. By

the time the case went to trial, the other defendants had either obtained

judgments in their favor or had been dismissed following settlements of

the claims against them.
WATSON V. CITY OF SAN JOSE 7

constitutional rights but that the City was not liable for any

violation. The constitutional rights in question were the right

against unreasonable search and seizure under the Fourth

Amendment and the right to due process under the Fourteenth

Amendment.

The jury awarded a total of $1,250,000 in compensatory

damages to the family after the first trial: O was awarded

$400,000, S and R were each awarded $250,000, and Watson

and Stalker were each awarded $175,000. The jury also

collectively awarded Plaintiffs punitive damages in the

amount of $1,500,000 from Blank and $500,000 from Hoyt. 

The total sum of damages awarded amounted to $3,250,000.

Defendants filed a motion for a new trial. The district

court granted Defendants’ motion. It reasoned that its jury

instructions on damages in the first trial were not adequate,

that “evidence and argument were allowed which resulted in

inadequate guidance to the jury,” and that the jury

“apparently either misunderstood the instructions that were

given or chose to ignore them.”

A second trial was conducted in 2012. The issue of

whether or not Defendants had violated Plaintiffs’

constitutional rights had already been resolved in the first

trial, so the second trial was limited to evidence regarding the

damages suffered by the family as a result of the violation. 

Specifically, the jury in the second trial determined the issues

of the amount of compensatory damages appropriate to

remedy the violation, whether or not Defendants’ conduct

justified awarding punitive damages, and the amount of any

punitive damages. Ultimately, the second jury awarded a

total of $210,002 of compensatory damages to Plaintiffs: O

and R were each awarded $1 in nominal damages, S was
8 WATSON V. CITY OF SAN JOSE

awarded $10,000, and Watson and Stalker were each awarded

$100,000. The jury in the second trial concluded that Hoyt

and Blank were not liable for punitive damages.

II. Discussion

A. Compensatory Damages

Plaintiffs’ main contention on appeal is that the district

court erred by granting a new trial. We review the

district court’s grant of a new trial for abuse of discretion

and will affirm if “any of its grounds for granting a new

trial are reasonable.” Experience Hendrix L.L.C. v.

Hendrixlicensing.com Ltd, 762 F.3d 829, 845–46 (9th Cir.

2014) (quoting United States v. 4.0 Acres of Land, 175 F.3d

1133, 1139 (9th Cir. 1999)). “Normally, we reverse under the

abuse of discretion standard only when the district court

reaches a result that is illogical, implausible, or without

support in the inferences that may be drawn from the record.” 

Kode v. Carlson, 596 F.3d 608, 612 (9th Cir. 2010) (per

curiam). We will affirm “a district court determination that

falls within a broad range of permissible conclusions,

provided the district court did not apply the law erroneously.” 

Id.

Prior to the first trial, the district court, by its own

description, “struggled . . . to formulate an appropriate jury

instruction” that limited the damages recoverable byPlaintiffs

to compensation for the injuries actually caused by the

officers. The children were seized by Defendants on June 29

and June 30, but the juvenile court ruled just a few days later,

on July 5, that the removal of the children from the home was

necessary for their welfare. The state’s custody of the

children thereafter was not something for which Defendants
WATSON V. CITY OF SAN JOSE 9

were legally responsible. In its first jury trial instructions

regarding causation and damages, the district court attempted

to describe limits on Defendants’ responsibility, but it

“overlooked” the decision of the Supreme Court in Carey v.

Piphus, 435 U.S. 247 (1978).

In Carey, the plaintiffs were public school students who

received lengthy suspensions without a hearing for alleged

violations of school policies. 435 U.S. at 248–52. The lower

courts determined that the students’ procedural due process

rights had been violated, and this determination was not at

issue on appeal. Id. at 252. However, the Supreme Court

noted that in cases where “a deprivation is justified but

procedures are deficient, whatever distress a person feels may

be attributable to the justified deprivation rather than to

deficiencies in procedure.” Id. at 263. In such cases, the

Court held that a plaintiff must “convince the trier of fact that

he actually suffered distress because of the denial of

procedural due process itself.” Id.

Of particular relevance here, in Carey the Supreme Court

approved the Court of Appeals’ holding that if the school

defendants could prove that the students “would have been

suspended even if a proper hearing had been held . . . then

[the students] will not be entitled to recover damages to

compensate them for injuries caused by the suspensions.” Id.

at 260 (internal citation omitted). The Court upheld the

reasoning of the Court of Appeals that the failure to provide

procedural due process could not be treated as causing the

suspensions if the students would have been suspended

anyway, so “an award of damages for injuries caused by the

suspensions would constitute a windfall, rather than

compensation, to [the students].” Id.
10 WATSON V. CITY OF SAN JOSE

As applied to this case, the officers could be held liable

for damages suffered from their failure to obtain a warrant or

court order, but Plaintiffs were required to prove that the

injuries suffered stemmed from that failure, as distinguished

from the later separation of the family based upon the

juvenile court order. Injuries based on the separation of the

family starting from June 29 and 30 could not be presumed

because it was possible that, if the officers had applied for a

warrant or court order, they would have been permitted to

seize the children on those dates.

The district court had initially concluded that the officers

could be liable for the separation experienced by the family

during the time between the officers’ removal of the children

without a warrant and the juvenile court’s July 5, 2005 order. 

Accordingly, the court in the first trial provided the following

instruction on damages, in relevant part:

You may award as compensatory damages,

the amount of money that you determine will

reasonably and fairly compensate the

plaintiffs for any injury you find was caused

by the unconstitutional acts of Sergeant Blank

and Officer Hoyt on which you based your

finding of liability. You should consider the

mental and emotional pain and suffering

experienced as a result of those acts. It is for

you to determine what damages, if any, have

been proved. However, the officers did not

file the dependency petition with the Juvenile

Dependency Court. It was filed by the Santa

Clara County Department of Family and

Children’s Services. Damages may not be

awarded against the officers for the actions
WATSON V. CITY OF SAN JOSE 11

taken by the Department of Family and Child

Services in connection with the petition and

for the actions taken by the Juvenile

Dependency Court which made an initial

order on July 5, 2005, based upon the petition

that the children were to be detained at the

children’s center pending further juvenile

dependency court proceedings. The only

relevance of the July 5, 2005, Order to the

current damages proceeding before you is as

to the light it sheds, if any, on whether

emotional distress claimed by plaintiffs was

suffered as a result of conduct on which you

based your finding of liability or as a result of

events for which the officers were not

responsible.

After receiving the damages verdict awarding over $3

million to Plaintiffs, the district court determined that the

amount of the award was excessive “beyond the realm of

reasonableness.” The court concluded that the $3 million

award represented more than the damages caused by the

failure to obtain a warrant or court order; the jury likely

awarded damages based on its sympathies toward the children

and the emotional distress arising from the separation of the

family while the state investigated and resolved the

allegations of sexual abuse. In support of its conclusion, the

court noted that R, the one-year-old boy, had been awarded

$250,000 in compensatory damages even though Plaintiffs

did not introduce any evidence of R’s distress from the
12 WATSON V. CITY OF SAN JOSE

warrantless removal.8 The district court reasoned that the

jury’s failure to follow the principles of Carey stemmed from

the court’s jury instructions and evidentiary rulings that did

not properly indicate that damages could only be awarded for

the unconstitutional procedure. It appeared to the district

court from the amount of the award that “the jury apparently

either misunderstood the instructions that were given or chose

to ignore them.”

In light of its concerns about the appropriateness of the

damages award, the district court ordered a new trial. The

court concluded that the jury verdict that the officers had

violated Plaintiffs’ constitutional rights by removing the

children without a warrant or exigent circumstances could

stand, but that the damages portion had to be retried. 

Specifically, the amount of compensatory damages had to be

redetermined, and both liability for and the amount of

punitive damages would need to be retried because the jury

might have punished the officers for distress they did not

cause.

In the second trial, the district court modified its

instructions to more clearly reflect the causation principles

established in Carey. The court explicitly instructed the jury

that the officers violated Plaintiffs’ constitutional rights by

the specific act of failing to obtain a warrant or other court

8 Although Plaintiffs on appeal argue that damages could be inferred

based upon the age and vulnerability of the victims, damages must be

supported by evidence, not merely inferences based upon characteristics

of the victims. See Mendez v. Cnty. of San Bernardino, 540 F.3d 1109,

1118–19 (9th Cir. 2008) (holding that emotional damages cannot “be

inferred entirely from circumstances, without any supporting testimony

from witnesses”), overruled on other grounds by Arizona v. ASARCO

LLC, 773 F.3d 1050 (9th Cir. 2014) (en banc).
WATSON V. CITY OF SAN JOSE 13

order before taking the children.9 The court also explained

the significance of the juvenile court order, stating that: “In

light of the Juvenile Court order the Officers cannot be held

responsible for any emotional distress caused by the

separation of the children from their parents and the

children’s detention in protective custody.” In addition, the

district court instructed the jury in the second trial that it

9 The relevant portions of the damages instruction from the second trial

are as follows:

You may award as compensatory damages the amount

of money that you determine will reasonably and fairly

compensate plaintiffs for any emotional distress or

injury that you find was caused by the violation of

plaintiff’s [sic] Constitutional rights by Sergeant Blank

and Officer Hoyt, specifically taking of the plaintiff

children into custody without either a warrant

authorizing them to do so or the existence of exigent,

emergency, circumstances. You should consider the

mental and emotional pain and suffering experienced

by each of these plaintiffs as a result of the

Constitutional violations. However, your damages

shouldn’t include any damages for emotional distress

resulting from the separation of the children from their

parents and the children’s detention in protective

custody. The Santa Clara CountyDepartment of Family

and Child Services filed a petition with the Juvenile

Court and the Juvenile Court ordered that the children

were to remain in protective custody for their welfare

pending further order of the Juvenile Court. In light of

the Juvenile Court order the Officers cannot be held

responsible for any emotional distress caused by the

separation of the children from their parents and the

children's detention in protective custody. However, the

Juvenile Court order does not validate or

retrospectively approve the constitutional violation

including the manner in which the children were taken

into protective custody.
14 WATSON V. CITY OF SAN JOSE

could not speculate about events occurring after the juvenile

court order entered on July 5, 2005 because those events were

not relevant to the damages proceedings. After hearing the

modified instructions, the jury in the second trial awarded the

much smaller total of $210,002 in compensatorydamages and

no punitive damages.

The district court did not abuse its discretion by

determining that the first set of jury instructions did not

adequately convey the causation principles in Carey. As

noted above, the Supreme Court held in Carey that

compensatory damages may not be presumed from the

violation of procedural due process. 435 U.S. at 263–64. An

injury could result from either the violation of procedural due

process itself, which is compensable, or from the underlying

substantive loss, such as the school suspension in Carey,

which would not be compensable if the loss was justified. Id.

at 263. It was Plaintiffs’ burden to “convince the trier of fact

that [they] actually suffered distress because of the denial of

procedural due process itself.” Id.

In this case, we agree with the district court that the

amounts of the damages awarded by the first jury indicated

that the jury improperly awarded damages for the fact of

separation of the children from their parents. The juvenile

court entered its order stating that the removal of the children

was necessary for their welfare on July 5, 2005, less than a

week after the children were removed by Defendants. That

order meant that the separation of the family was inevitable

and could not be attributed to Defendants, and Plaintiffs did

not refute that proposition. As a result, the emotional distress

arising from the separation would have occurred regardless of

the officers’ conduct. Even if the jury concluded that the

separation prior to July 5 was not justified, the amount
WATSON V. CITY OF SAN JOSE 15

awarded by the first jury did not reasonably reflect the actual

injury suffered as a result of a separation of five or six days,

given that the separation for the 17 months that followed was

lawful and would have occurred anyway.

Accordingly, the district court did not err by concluding

that a new trial was warranted. The jury instructions in the

first trial may have permitted the jury to improperly award

damages for deprivations for which Defendants were not

responsible.

We are not persuaded by Plaintiffs’ arguments that Carey

does not apply to the facts of this case. They argue that

Carey was focused on claimed violations of procedural due

process, while Fourth Amendment and substantive due

process Fourteenth Amendment violations are claimed here. 

Carey primarily speaks to the concept of causation, however,

and that principle applies to all of Plaintiffs’ claims. 

Although Carey examined procedural due process claims in

the context of school suspensions, both our court and other

circuits have applied its causation analysis to other types of

constitutional tort actions. See e.g., Coral Const. Co. v. King

Cnty., 941 F.2d 910, 926 (9th Cir. 1991) (discussing Carey in

the context of an equal protection claim); see also Gomes v.

Wood, 451 F.3d 1122, 1132 (10th Cir. 2006) (holding that,

under Carey, a family could only recover damages for the

denial of procedural due process itself, but not for the

separation of parents from their child because the family did

not contest state judge’s finding that removal was justified);

Hector v. Watt, 235 F.3d 154, 157 (3d Cir. 2001) (analyzing

Fourth Amendment claim under Carey). We see no

principled reason why Carey would not apply here.
16 WATSON V. CITY OF SAN JOSE

We are also not persuaded by Plaintiffs’ argument that

any error in the instructions given to the first jury was

harmless. They assert that the damages awarded by the first

jury were based entirely on what they describe as the

egregious manner of the seizure of the children by

Defendants and not from the separation of the family. The

district court thought otherwise, and we agree that Plaintiffs’

characterization seems unlikely. We afford deference to the

district court’s decision to grant a new trial, and the district

court reasonably concluded that a new trial was appropriate

here.10 Because the district court’s conclusions were not

“illogical, implausible, or without support in the inferences

that may be drawn from the record,” Kode, 596 F.3d at 612,

we affirm the decision to grant a new trial on compensatory

damages.

B. Punitive Damages

We also affirm the district court’s order granting a new

trial as to punitive damages. The court did not abuse its

discretion by ordering a new trial with respect to liability

because the punitive damages awards could have resulted

from passion and prejudice of the jury connected to its

misunderstanding of the injuries for which Defendants could

properly be held responsible. See Watec Co. v. Liu, 403 F.3d

645, 655 (9th Cir. 2005) (district court may vacate a judgment

and order a new trial if excessive damages could have

10 We reject Plaintiffs’ argument that the district court failed to provide

notice or a hearing regarding a new trial on compensatory damages

because the district court provided sufficient notice and opportunity to be

heard regarding the application of Carey to all of Plaintiffs’ damages

awards in this case.
WATSON V. CITY OF SAN JOSE 17

resulted from passion and prejudice).11 As discussed above,

the court permissibly concluded that the jury awarded

compensatory damages for emotional distress from the

separation that was not caused by the police officers; the

court could likewise infer that the jury improperly punished

the officers for that same separation. Because one of the

factors used to examine the excessiveness of a punitive

damages award is the amount of compensatory damages

awarded, State Farm Mutual Automobile InsuranceCompany

v. Campbell, 538 U.S. 408, 425 (2003), the district court did

not abuse its discretion by concluding that a flawed

compensatory damages award justified a retrial for punitive

damages. Moreover, we find no error in the district court’s

analysis that the officers’ conduct, while reckless, did not rise

to the level of reprehensibility that would justify the amount

of punitive damages awarded in the first trial.12See Mendez,

540 F.3d at 1120–21.

III. Conclusion

For the reasons stated above, we conclude that the district

court did not abuse its discretion by granting a new trial. We

11 As stated in Watec, a district court has the discretion to vacate the

judgment and order a new trial because of excessive damages even ifthere

is no evidence that passion and prejudice affected the liability finding. 

403 F.3d at 655. Although “remittitur is an appropriate method of

reducing an excessive verdict,” the district court was not required to use

remittitur as opposed to granting a new trial. Id.

12 We reject Plaintiffs’ argument that they did not have sufficient notice

and opportunity to be heard regarding the grant of a new trial as to liability

for punitive damages. The issues of liability and excessiveness were

raised in Defendants’ motion for a new trial, and Plaintiffs had ample

opportunity to argue that a new trial was not warranted.
18 WATSON V. CITY OF SAN JOSE

affirm the judgment entered by the district court in favor of

Plaintiffs awarding them a total of $210,002 in damages.

AFFIRMED.