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

T R A C Y W A T S O N ; R E

N E E S T A L K

E R ; P A M S T A L K

E R , as Guardian Ad L item for O.S.; S.W .; and R.W .; minors, Plaintiffs-Appellants

,

v

.

C I T Y O F S A

N J O S E , San J ose Police Department; W I L L I A

M H O Y T ; C R

A I G B L A N K , Defendants-Appellees

. N o. 13-15019

D.C. No. 5:06-cv-04029- RMW

OPI NI ON

A ppeal from the United States District Court for the Northern District of California Ronald M. W hy

te, Senior District J udg e, Presiding

Arg ued and Submitted F ebruary 13, 2015—San F rancisco California

F iled September 8, 2015

B efore: M. Marg aret McKeown, W illiam A. F letcher,

a nd Richard R. Clifton, Circuit J udg es.

Opinion by

J udg e CliftonW A T S O N V

. C I T Y O F S A N J O S E 2

SUMMARY *

Civil Rights

The panel affirmed the district court’s decision to g rant a

new jury trial on compensatory an d p u nitive damag es in an action broug ht pursuant to 42 U.S.C. § 1983 ag ainst two San J ose police officers after the offic e rs took plaintiffs’ minor children into pro t e c tive custody without a w arrant or court order.

The panel held that b ecause t h e j u r y instructions in the first t r i a l may have permitted the jury to improperly award damag es f

or deprivations for which defendants were not responsible, the district c ourt did n o t err by concluding that

a new trial was warranted. The panel ag reed with the district
court that the $3 million in damag es a w arded by the first jury indicated that the jury improperly awarded d amag es for the fact o f separation of the children from their parents a f t e r a juvenile court entered a r emoval order. The panel held that the juvenile court order meant that the separati o n o f the family was inevitable and could not b e attributed to the police officers, and plaintiffs did not refute that propo s i t i o n. Therefore, even if the jury concluded that the separation prior
to the court order was n ot j u s tified, the amount awarded b y the first jury did not re asonably r eflect the actual injury suffered as a result of a separation of f ive o r s i x d a y s, g iven that the separation for the 17 months that followed was lawful and would have occurred any way

.

* T h is su m m ary co n stitu

tes n o part 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.W A T S O N V

. C I T Y O F S A N J O S E 3

COUNSEL

Peter J ohnson (arg

ued), L aw Offices of J ohnson & J ohnson, W a lnut Creek, California, for Plaintiffs-Appellants.

Clifford S. Greenberg (arg u ed), Senior Deputy City Attorney
, Nora F rimann, Assistant Ci t y Attorney
, and Richard Doy le, City Attorney
, San J ose Cit y A t torney ’s Office, San J o se, California, for Defendants-Appellees.

Do n n i e R. Cox
, Oceanside, California, for Amicus Curiae Pacific J ustice I nstitute.

OP INION

CL I F TON, Circuit J udg e :

Tracy W atson, Renee Stalker, and their three m i nor children appeal the district court’s decision to gr a n t a new jury trial on compensatory and p unitive damag es a rising from their c laims ag ainst San J ose police office rs W illiam Hoy t and Craig B lank. The officers took the chil d r e n i n to protective custody without a warrant or court order, violating the constitutional rig hts of th e f a mily members. After the jury in the first trial a

warded over $3 million in damag es, the district court g ranted a new trial wit h respect to damag e s based on its inference t h a t t he jury may have impermissibly awarded damag es for injuries that would have been suffered absent the constitution a l v i olation. Plaintiffs arg ue that the district court abused its discretion by g ranting a new trial a nd that the i n i t i a l award of damag es should be reinstated. W e conclude that the district court did not abuse its d iscretion inW A T S O N V

. C I T Y O F S A N J O S E 4

ordering the new trial. According ly

, we affirm the judg ment entered by

the district court following the second trial. 1

I. Background 2

Plaintiffs Tracy W a tson and Renee Stalker were married and had three ch i l d r en, who will b e identified by their first initia l s : O (an eig h t-y ear-old g irl), S (a three-y ear-old boy ),

an d R (a one-y ear-old b oy ). The children are also plaintiffs in this action, throug h their g uardian ad litem Pam Stalker.

O n M ay 26, 2005, a teacher at O’s school contacted t h e Santa C l ara County Department of F amily and Children’s Services (DF CS), alleg ing that O ex hibited c o nduct r aising suspicion that she s u f

f ered from sex ual abuse. DF CS

as s i gn e d a social worker to the c ase, but the matter was not desig nated a s urg e nt and the ag e ncy did not otherwise indicate t hat immediate r emoval of the children was warranted. W hen the f

irst social worke r w ent o n vacation, the case was assig n ed to a second social w o r k e r. Approx imately one month passed wi t h o u t e ither social worker meeting with the parents o r visiting the f a m i l y ’s

1 A s d escrib ed b elo w , th e j u ry in th e f i rst t rial f o u n d th at th e C ity o f San J ose w as n o t l iab le f

o r th e in j u ries su f f ered b y Plain t if

f s b u t th at th e tw o p o lice o f f icers w ere each in d i v id u ally liab le. T h e d i strict co u rt g ran ted a

n ew trial b u t o n ly as t o th e am o u n t o f d am ag es, n o t as to th e f act of liab ility f o r th e v io latio n of co n s titu tio n al rig h ts b y Ho y t an d Blan k

. T h e

seco n d trial pro ceed ed f

ro m th at p o in t. Neith er P lain tif f s n o r Def en d an ts ch allen g e th e liab ility

v erd icts.

2 B ecau se th e case w as tried b efo re a j u ry , w e state t h e f acts an d i n t e r p ret th e ev i den ce in th e lig h t m o st f av o rab le to th e p arty th at w a s

su ccessf u l at trial, in t h i s c a s e , th e P lain tif f s

. S ee Ba in s LLC v. Arco Pro d u cts Co

. , 4 0 5 F.3 d 7 6 4 , 7 6 6 (9 th Cir. 2 0 05 ).W A T S O N V

. C I T Y O F S A N J O S E 5

home, despite several attempts to arrang e a meeting

. On J u ne 27, the second social worker fax ed a report of the alleg ations of sex ual a

buse a nd the failed a t t empts to connect with the parents to the San J ose Police Department.

On J une 29
, the Police Department assig ned the case to Detective Hoy

t. Hoy t’s supervisor was Serg eant B lank, w ho briefly met with the social w orker then assig ned to O’s c ase. That same day

, B lank, Hoy t, and appro x i m ately five uniformed officers went to the family ’ s h ouse. 3 O was not at ho m e , s o B lank called Watson, leading to a disag reement between them over where the officers would interview O

. W a tson did n ot bring O to the house. I n r esponse, the officers removed S and R from the home, thoug h they did n ot have a warrant authoriz ing them to do so. 4

The nex t day

, on J u n e 30, O a nd her mother arrived at the police station, and the police officers i n t er viewed O

. Althoug h O denied being abused by h er father or any one else, the police took custody o f h e r as well. S h e w a s t aken to a children’s shelter.

The f ol l owing day

, on J u ly 1, DF CS filed petitions with the juvenile court pursuant to California W elf a r e a nd I nstitutions Code § 300, w hich allows that court to declare that a c hild is a dependent of the c ourt and to order removal

3 T h e j u ry later c o nc l u d e d th at Ho y t an d B lan k f

ailed to co n d u ct a

reaso n ab le in v estig atio n in to th e alleg atio n s o f sex u al ab u se b ef ore d ecid in g to v isit th e h o m e. T h at v erd ict is n o t ch allen g ed o n ap peal.

4 T h e j u ry co n clu d ed th at th e o f f icers d id n o t h av e ex ig en t circu m stan ces to rem o v e th e b o y s f

ro m th e h o m e, a co n clu sio n th at h as n o t b e en ch allen g ed o n

ap peal.W A T S O N V

. C I T Y O F S A N J O S E 6

of the child f

rom the custody of the parents if the child h a s suffered or has a substantial risk o f s u f fering abuse. Defendants contend that the alleg ations contain e d in the petitions w ere the same alleg ations p resented to the officers by DF CS.

F our day s later, on J uly 5, 5 the juvenile cou r t f o u n d that the “continuance of the children in the home of their parents is contrary to their welfare.” B ased on that order, the parents

were d eprived of custody and the children were held by the
state beg inning J uly 5, 2005 until they were returned to their parents 17 months later, in November of 2006. 6 Plaintiffs do
not in this appeal d ispute that the children were leg itimately held by the state from J uly 5, 2005.

Plaintiffs filed a c ivil la w s uit in federal c ourt under 42 U .S.C. § 1983, claiming injuries from the warrantless

s e i z ure of the children by the police o fficers. The case was tried b y a jury in 2011. At that p oint, the on l y d e f e n dants remaining in the action were H oy t, B lank, and the City of San J ose. 7 T he jury found that Hoy t and B lank violated Plaintiffs’

5 J u ly 5
, 2 0 0 5 w as a T u esd ay

. B ecau se o f th e Ju ly 4 h o lid ay , i t w as th e f irst b u sin ess d ay f

ollo w i n g th e f

ilin g o f th e p etitio n s w ith th e j u v en i le

co u rt o n Frid ay , J u ly

1

.

6 A f ter co n d u ctin g ad d itio n al ev id en tiary a n d c u sto d y h earin g s, th e j u v en ile co u rt determ in ed th at O h ad b een sex u ally ab u sed

, an d t h at S an d R w ere in d an g er o f

ab u se. T h e Calif

o rn ia Co u rt o f A

pp eal af f irm ed th e j u v en ile co u

rt’ s o rd ers.

7 Man y ad d itio n al d ef

en d an ts w ere o rig i n ally n am ed in th at actio n

. B y t h e tim e th e case w en t to trial, th e o th er d ef en d an ts h ad eith er o b tain ed j u d g m en ts i n t

h ei r f av o r o r h ad been d ism issed f o llo w in g settlem en ts of th e claim s ag ain st th em

.W A T S O N V

. C I T Y O F S A N J O S E 7

constitutional rig hts but that the City w a s not liable for any violation. The constitutional rig hts in question were the rig ht
ag ainst unreasonable search and seiz ure under t h e F ourth Amendment and the rig ht to due process under the F ourteenth Amendment.

The jury awarded a total of $1,250,000 in c ompensatory damag es to the f

amily after the f

irst trial: O was a w ar d ed $400,000, S and R were each awarded $250,000, and W atson and Stalker were each awarded $175,000. The jury also

co l l ectively awarded Plaintiffs punitive damag es in the amount of $1,500,000 from B lank and $500,000 from Hoy t. The total sum of damag es awarded a mounted to $3,250,000.

Defendants filed a motion for a new trial. The district

co u r t granted Defendants’ motion. I t reasoned that its jury instruc t ions on damag es in the first trial were not adequate, that “evidence and arg ument were allowed which resulted in inadequate g u idance to the jury ,” and that the jury “apparently either misunderstood the in s t r uctions that were g iven or chose to ig nore them.”

A second trial was condu c t e d in 2012. The issue o f whether or n o t D efendants had violated Plaintiffs’ constitutional ri gh ts had already been resolved in the first trial, so the second trial was limited to evidence reg arding the damag es s u ffered by the family as a result of the violation. Specifically

, the jury in the second trial determined the issues of the amount of c o m p ensatory d amag es appropriate to remedy the violation, whether or not D efendants’ conduct justified awarding punitive d amag es, and the amount of any punitive d amag es. Ult i m a t el y , the second jury awarded a total of $210,002 of compensatory damag es to Plaintiffs: O and R were each awar d ed $ 1 in nominal damag es, S wasW A T S O N V

. C I T Y O F S A N J O S E 8

awarded $10,000, and W a tson and Stalker were each awarded $100,000. The jury in the second t rial concluded that Hoy t and B lank were not liable for punitive damag es.

II. Discussion

A. Compensatory Damages

Plaintiffs’ main contention on appeal is that the d istrict
court er r e d by g ranting a n ew trial. We review the district court’s g rant of a new trial f or abuse o f d i s c r etion and will affirm if “any of its gr o u n d s for g ranting a new trial are reasonable.” Experience Hendrix L.L.C. v

. Hendrixlicensing.com Ltd

, 7 6 2 F .3d 829, 8 4 5–46 (9th Cir. 2014) (quoting United States v. 4.0 Acres of Land

, 175 F .3d 1133, 1139 (9th Cir. 1999)). “Normally

, we r everse under the abuse of discretion standard only wh e n the district court reaches a result that is illog ical, implausib l e, or without support in the inferences that may be drawn from the record.” Kode v. Carlson

, 5 96 F .3d 608, 612 (9th Cir. 2 010) (per curiam). W e will affirm “a district cou r t determination that falls within a b r o a d rang e of permissible conclusions, provided the district c ourt d id not apply the law erroneously

. ” Id

.

Prio r t o t h e f

irst trial, the district court, by its o wn description, “strug g led

. . . to formulate an appropriate jury instruction” that limited the damag e s r e c o v e r a b le by Plaintiffs
to compensation for the injuries actu a lly caused by the officers. T he children w ere seiz ed by Defendants on J une 29 and J une 30, but the juvenile court ruled just a f ew day s later,

on J uly 5, that the removal o f the children from the h ome was necessary for their welfa r e

. T he state’s custody o f the children thereafter was not something for which DefendantsW A T S O N V

. C I T Y O F S A N J O S E 9

were leg ally respons i b le. I n its first jury trial instructions
reg arding causation and damag es, the district court attempted
to describe limits o n Defendants’ responsibilit y , but it “overlooked” the decision of the Supreme Court in Carey v. Piphus , 435 U.S. 247 (1978).

I n C a r e y , the plaintiffs were public school students w ho received leng thy suspensions without a hearing for alleg ed violations of school policies. 435 U.S. at 248–52. The lower
courts det e r

mined that the students’ procedural due process rig hts h a d b e en violated, and this determination was not at issue on a

ppeal. Id. at 252. H o wever, the Supreme Court noted that in cases where “a dep r i v a t i o n is justified but procedures a

re deficient, w hatever d istress a person feels may be a ttributable to the justified deprivation rather th a n to de fi c i e n cies in procedure.” Id. at 263. I n such cases, the Court held that a plaintiff must “convince the trier o f fact that he actually suffered distress because of the denial o f procedural due process itself.” Id.

Of particular relevance here, in Carey the Supreme Court approved the Court of A ppeals’ holding th a t if the school defendants could prove that the students “ would h ave been suspended e ven if a p roper h e a r i n g h ad been held

. . . then [ the students] will not b e entitled to recov e r d amag es to compensate them f

or injuries caused by the suspensions.” Id.
at 260 (internal citation omitted). The Court u pheld the reasoningof the Court of A ppeals that the failure to provide procedural due process c o u ld not b e treated as causing the suspensions if the students would have been sus p e n d ed
any way , so “ an a

ward o f dam a ge s f

or injuries caused by the

s uspensions would constitute a windfall, rather th a n compensation, to [ the students] .” Id.W A T S O N V

. C I T Y O F S A N J O S E 10

As applied to this c ase, the officers could be held liable for damag es suffered from their failure to obtain a warrant o r court o rder, but Plaintiffs wer e required to prove that the injuries suffered stemmed from that failure, as disting u ished fro m t h e l ater separation of the family based upon the juvenile court order. I n

juries based on the separation of the family starting from J une 2 9 a n d 3 0 c ould not be presumed because it was possible that, if the officers had applied f or a warrant o r court order, they would have been p ermitted to seiz e the children on those dates.

The district court had initially concluded that the officers could be liable f

o r the separation ex perienced by the family during the time between the officers’ removal of the children without a warrant and the juvenile court’s J uly 5, 2005 order. According ly

, the court in the first trial provided the following instruction on damag es, in relevant part:

You may a

w ard as co m p ensatory damag es, the amount of money

that y ou determine will

r e as o n a b l y an d f

a i rl y c ompensate the plaintiffs for an y injury y ou find was c aused by the u nconstitutional acts of Serg eant B lank

an d Officer Hoy

t o n which y o u based y our finding of liability

. You should consider the mental and emotional pai n a nd suffering

ex p erienced as a result of those acts. I t is for
y ou to determine what d a m ag e s, if any , have been p roved. However, the officers did not file the dependency petition with the J uvenile D e pendency Court. I t was filed by the S a n t a Clara County D e p a

rtment of F amily a

nd Children’s Services. Damag es may not be awarded ag ainst the officers f or the a ctionsW A T S O N V

. C I T Y O F S A N J O S E 11

taken by the Department of F amily and Child Serv i c e s in connection with the petition a nd for the actions taken by the J uvenile D ep endency Court w hich made an initial order on J uly 5, 2005, based u pon the petition that the children were to be detained a t the children’s center pending further juvenile dependency court proc eeding s. The only relevance of the J uly 5, 2005
, O r der to the
current damag es p roceeding before y ou is a s to the lig ht it sheds, if any , on whether emotional distress claimed b y plaintiffs was suffered as a r esult of c onduct on wh i ch y ou based y our f

inding of liability or as a result o f
events for which the officers were not responsible.

A fter r eceiving the d amag es v erdict awarding over $3 million to Plaintiffs, the district court determined t h a t the

a m o u nt of the award was ex cessive “bey ond the realm of reasonableness.” The court concluded th a t t he $3 million award represented more than the damag es caused by the failure to obtain a warrant or c ourt order; the jury likely awarded damag es b a sed o n its sy mpathies toward the children and the emotional distress arising from the separation of the family while the state investig ated a n d resolved the alleg ations of sex ual abuse. I n support o f its conclusion, the
court noted that R, the one-y e ar-old boy

, had been awarded $250,000 in c ompensatory damag es even thoug h Plaintiffs did n ot introduce any evidence of R’s dist r ess from theW A T S O N V

. C I T Y O F S A N J O S E 12

w arrantless removal. 8 The d istrict court reasoned that t h e jury ’s failure to follow the p rinciples of Carey stemmed from the court’s jury inst r u c t i o ns and e videntiary ruling s that did
not properly indicate that damag es could only be awarded for the unconstitutional procedure. I t appeared to the distr i ct court f rom the amount of the award that “the jury apparently either misunderstood the instructions that were g iven or chose to ig nore them.”

I n lig h t o f its concerns about the appropriateness of the damag es a w ard, the district court ordered a new trial. The

cour t c o n c luded that the jury verdict that the officers h ad violated Plaintiffs’ constitutional rig hts by re m oving the children without a warrant or ex i ge nt circumstances could stand, but that the d a mag es p ortion had to be retried. Specifically

, the amount of compensatory damag es had to be redetermined, and b oth liability fo r a nd the amount o f punitive damag es would need to b e retrie d b e c a use the jury mig ht have punished the officers for distress they d id not

cause.

I n the second trial, the district court modi f i ed its instructions to more clear l y reflect the causation principles established in Carey

. The court e x plicitly instructed the jury that the officers violated Plaintiffs’ c onstitutional rig h ts b y t h e s p e ci f ic act of failing to obtain a warrant or other court

8 A lth o u g h P l a i n t i ff

s o n ap p eal arg u e th at d am ag es co u l d b e in f erred b ased u p o n t h e ag e an d v u l n e rab ility o f th e v i ctim s, d am ag es m u st b e

su p p o rted b y

ev id en ce, n o t m erely

in f eren ces b ased

u p o n ch aracteristics

o f th e v ict i m s

. S

ee Men dez v. C

n ty. o f S a n Bern a rd in o , 5 4 0 F.3 d 1 1 0 9
, 1 1 1 8

– 1 9 (9 th Cir. 2 0 0 8 ) (h o l d in g th at em o tio n al d am ag es can n o t “ b e in f erred en tirely f

ro m circu m stan ces, w ith o u t an y su p p o rtin g t e s t i m o n y f ro m w itn esses”), o verru led o n o th er g ro u n d s b y Arizo n a v. AS

ARCO LLC , 7 7 3 F.3 d 1 0 5 0 (9 th Cir. 2 0 1 4) (en b an c).W A T S O N V

. C I T Y O F S A N J O S E 13

order before taking the children. 9 T h e court also ex p lained the sig nificance of the juvenile court order, stating that: “I n lig ht of the J uvenile Court order the Officers cannot be h eld

re sponsible for any emotional distress c aused by the separation of the children from th ei r p a rents and the children’s detention in protective custody .” I n additio n , the district court instructed the jury in the secon d t r i al that it

9 T h e relev an t p o rtio n s of th e d am ag es i n stru ctio n f ro m th e seco n d t

rial are as f o llo w s:

Yo u m ay aw ard as co m

p en sato ry d am ag es th e am o u n t

o f m o n ey th at y o u d eterm in e w ill reaso n ab ly an d f airly

co m pen sate p lain tif

f s f o r an y em o tio n al d istress or in j u ry th at y o u f

in d w as cau sed b y t h e v i o latio n of
p lain tif f ’ s [sic] Co n stitu

tio n al rig h ts b y Serg ean t B lan k

an d Of f icer Ho y t, sp ecif ically t ak in g o f t h e p lain tif f ch ild ren i n to cu s to d y w ith o u t eith er a w arran t

au th orizin g th em t o d o s o o r th e ex i sten ce o f ex ig en t,

em erg en cy , circu m stan ces. Yo u sh o u l d co n s id er th e

m en t al an d em o t io n al p ain an d su f f erin g ex p erien ced b y each o f th ese p lain tif f s as a r esu lt o f th e Co n stitu tio n al v i o latio n s

. Ho w ev er, y o u r d am ag es

s h o u ld n ’ t i n clu d e an y d am ag es f o r em o tio n al d istre s s

resu ltin g f

ro m th e sep aratio n of t

h e ch ild ren f

ro m th eir
p aren ts an d th e ch ild ren ’ s d eten tio n in p r o tectiv e

cu sto d y

. T h e San ta Clara Co u n ty Dep artm en t o f F am ily

an d Ch ild Serv ices f

iled a p etitio n w it h th e J u v en i le Co u rt an d th e J u v en ile Co u rt o rd ered th at th e ch i ld ren

w ere to rem ain i n p ro tectiv e cu sto d y f o r t h e ir w elf

are p en din g f u rth er ord er o f t

h e J u v en ile Co u rt. In lig h t o f th e J u v en ile Co u rt o rd er th e Of f ic e rs can n o t b e h eld
resp o n s ib le f

o r an y em o tio n al d istress cau sed b y th e sep aratio n o f th e ch ild ren f r o m th eir p aren ts an d th e ch ild ren ' s d eten tio n i n p ro t ectiv e cu sto d y

. Ho w ev er, th e J u v e n i l e C o u r t o r d e r d o e s n o t v a l i d a t e o r retro sp ectiv ely ap p ro v e th e co n stitu tio n al v i o latio n in clu d in g th e m an n er in w h ich th e ch ild ren w ere tak en in to p ro tectiv e cu s to d y

.W A T S O N V

. C I T Y O F S A N J O S E 14

could not speculate about e vents occurring after the juvenile
court o rder entered on J uly 5, 2005 because those events were not relevant to the d amag es pro ce e d i ng s. After hearing the modified instructions, the jury in the second trial awarded the much smaller total of $210,002 in compensatory damag es a nd no punitive damag es.

The d istrict court did n o t a buse its discretion b y determining t h a t the f

irst set of jury instructions did not adequately co n v e y the causation principles in Carey

. A s noted a bove, th e S u p reme Court held in Carey that compensatory damag es may not be presumed f rom the violation of procedural due process. 435 U.S. at 263–64. An injury could result from either the v iolation of procedural d ue process itself, which is compensable, or from the underly ing substantive loss, such as the schoo l s u s pension in Carey
, which w ould not be compensable if the loss was justified. Id.
at 263. I t was Plaintiffs’ b urden to “convince the trier of fact that [ they ] actually suffered distress because of the denial of procedural due process itself.” Id

.

I n t his case, we ag ree with the district court that the
amounts of the damag e s awarded by t h e f i r st jury indicated
t h a t the jury improperly awarded damag es f or the fact o f separation o f the c h ildren from their parents. The juvenile
court entered its o rder stating that the removal of the children

was nec e s sary for their welfare on J uly 5, 2005, less than a week after the children were removed by Defenda n t s

. That order meant that the separation o f the family was inevitable and c ould 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 reg ardless o f
t he officers’ conduct. Even if the jury concluded that the separation prior to J uly 5 w as not justified, the amountW A T S O N V

. C I T Y O F S A N J O S E 15

awarded by the first jury d id not reasonably r eflect the actual injury suffered as a result of a separation of five or six day s, g iven that the separation for the 17 months that followed was lawful and would have occurred any way

. According ly

, the district c ourt did not err by concluding that a new trial was warranted. The jury instructions in the first trial may h a v e p e rmitted the jury to improperly award damag es for deprivations for wh i c h D efendants were not responsible.

W e are n ot persuaded by Plaintiffs’ arg uments that Carey does n ot apply to the facts of this case. T h e y a r g u e that Carey was focused on claimed viol a t ions of procedural d ue process, while F ourth Amendment and substantive d ue process F o urteenth Amendment violations are claimed here. Carey p rimarily speaks to the c oncept of causation, however, and that principle applies to all of Plaintiffs’ claims. Althoug h Carey ex amined procedural d u e process claims in the contex t of school suspensions, b oth our court and other circuits have applied its c a usation analy sis t o o t h er ty pes o f constitutional tort actions. See e.g. , Coral Const. Co. v. King Cnty.
, 941 F

. 2d 910, 926 (9th Cir. 1991) (discussing Carey in the contex t of an equa l protection claim); see also Gomes v

. W ood

, 451 F

. 3d 1122, 1132 (10th Cir. 2006) (holding that, unde r C a r ey , a family could o nly recover damag es for the denial o f p ro c edural due process itself, but not for the separation of parents from their child b ecause the family did not contest state judg e’s finding that r emoval was justified); Hector v. W

att , 235 F .3d 154, 157 (3d Cir. 2001) (analy zing F ourth Amendme n t claim under Carey ). We see no principled reason why Carey would not apply here.W A T S O N V

. C I T Y O F S A N J O S E 16

W e are also not persuaded by P laintiffs’ arg u ment that
any error in the inst r u c tions g iven to the first jury was harmless. They

assert that the damag e s awarded by the first jury were based entirely o n wh a t they describe as the
eg reg ious manner o f the sei z u r e of the children b y Defendants and not from the separation of the family

. T he district court thoug ht otherwise, and we ag ree that Plaintiffs’ characteriz ation seems unlikely . W e afford deference to the district court’s decision to g rant a new trial, and the district
court reas o nably concluded that a new trial was appropriate here. 1 0 B ecause the d ist r i c t court’s conclusions were not “illog ical, implausible, or without suppor t i n the inferences that may be drawn from the record,” Kode

, 596 F .3d at 612,

we affirm the decision to g rant a new trial on c ompensatory damag es.

B. Punitive Damages

W e also affirm the district court’s ord e r g ranting a new trial as to punitive damag es. T he cou r t d i d n o t abuse its discretion by ordering a new trial w i t h respect to liability be ca u s e the punitive damag es awards could have resulted from pa ssion and prejudice of the jury connected to its misunderstanding of the injuries for which Defendants could properly be held responsible. S ee W atec Co. v. Liu
, 403 F .3d 645, 655 (9th Cir. 2005) (district c o urt may vacate a judg ment and order a new tria l i f ex cessive damag es could have

1 0 W e rej ect P lain tif

f s’ arg u m en t th at th e d istrict co u rt f ailed to p ro v id e

n o tice o r a h earin g reg ard in g a n ew t rial o n co m

p en sato ry d am ag es b ecau se th e d i strict co u rt p ro v id ed su f f i cien t n o tice an d o p po rtu n ity t o b e h eard reg ard in g t h e a p p l icatio n o f Ca rey t o all o f P lain tif f s’ d am ag es

aw ard s in th is case.W A T S O N V

. C I T Y O F S A N J O S E 17

resulted from passion and prejudice). 1 1 As discussed above, the cou r t p ermissibly concluded that the jury awarded compensatory damag e s for e motional distress f rom the separation that was not caused by the police officers; the

c ourt could likewise infer that the jury improperly punis h e d
t h e officers for that same separation. B ecause one o f t h e factors u sed to ex amine the ex cessive n e s s of a punitive damag es a

ward is the amount o f co m p ensatory damag e s awarded, State Farm Mutual A u tomobile Insurance C o m p a ny

v. Campbell

, 538 U.S. 408, 425 (2003), the district court did
not abuse its discretion by co n c l uding that a f lawed
comp ensatory damag es award justified a retrial for punitive damag es. Moreove r, we find no error in the d istrict court’s analy sis that the o fficers’ conduct, while reckless, did not r ise
to the level of reprehensibility that would justify

the amount of punitive damag e s a

warded in the first trial. 1 2 S ee Mendez

, 540 F .3d at 1120–21.

III. Conclusion

F or the r easons stated above, we conclude that the district
court did not abuse its discretion by g r anting a new trial. W e

11 A s stated in W

a tec , a d i strict co u rt h as th e d i scretio n to v acate th e j u d g m en t an d o rd er a n ew trial b ecau se of ex cessiv e d am ag es ev en if th ere is n o ev i d en ce th at p assio n an d p rej u d ice af f ected th e lia b i l i t y fin d in g

. 4 0 3 F.3 d at 6 5 5

. A lth o u g h “r e m ittitu r is an ap p ro p riate m eth od of red u cin g an ex cessiv e v erd ict,” th e d istrict co u rt w as n ot req u ired to u s e

rem ittitu r as o p p o sed to g ran tin g a n ew trial. Id

.

12 W e rej ect P lain t if

f s ’ arg u m en t th at th ey d id n o t h av e s u f f icien t n otice

an d o p p o rtu n ity to b e h eard reg ard in g th e g ran t o f a n ew trial as to l iab ility f o r p u n itiv e d am ag es. T h e issu es of liab ility an d ex cessiv en ess w ere raised in Def

en da n t s ’ m o t i on f

o r a n ew trial, an d P lain tif f s h ad am p le

o p p o rtu n ity

to arg u e th at a n ew

trial w as n o t w arran t ed

.W A T S O N V

. C I T Y O F S A N J O S E 18

a f f irm the judg ment entered by the district court in favor o f Plaintiffs awardingthem a total of $210,002 in damag es.

AF F IRMED.