Carole Krechman v. County of Riverside

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CAROLE KRECHMAN , Individually, No. 12-55347 and as the Personal Representative of Robert Albert Appel, deceased, D.C. No. Plaintiff-Appellant, 2:10-cv-08705-

ODW-DTB

v.

COUNTY OF RIVERSIDE , a OPINION Municipality; ROBERT GARCIA , Deputy, ID# 4504; MARTIN ALFARO , Deputy, ID# 3485; SEAN DUSEK, Deputy, ID# 3495; EDWARD CHACON , Deputy, ID# 4505, Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Otis D. Wright II, District Judge, Presiding

Argued and Submitted June 6, 2013—Pasadena, California

Filed July 25, 2013 KRECHMAN V . COUNTY OF RIVERSIDE

Before: Ronald M. Gould, N. Randy Smith, and Jacqueline H. Nguyen, Circuit Judges.

Opinion by Judge Gould; Concurrence by Judge N.R. Smith

SUMMARY*

Civil Rights

The panel reversed the district court’s Fed. R. Civ. P. 50(a) judgment as a matter of law in favor of defendants following a jury trial in this action alleging that police officers used excessive deadly force when they attempted to take custody of plaintiff’s adult son.

The panel held that…

Carole Krechman, individually and as the personal representative of her son, Robert Albert Appel, brought a 42 U.S.C. § 1983 action for damages resulting from her son’s death. Krechman contends that *1107 police officers (“Defendants”) used excessive force, resulting in Appel’s death, when they responded to a 911 hang-up call and found Appel sitting unarmed in his driveway and tried to take custody of him. After a jury trial, the district court granted judgment as a matter of law to Defendants under Federal Rule of Civil Procedure 50(a). Krechman appeals, requesting reversal of that decision and a new trial, preferably before a different judge. In the alternative, she asserts (1) that the district court made erroneous trial rulings that cumulatively prejudiced her substantial rights and led to the entry of judgment as a matter of law against her and (2) that the district court violated her due-process rights by engaging in conduct that amounted to an unconstitutional appearance of bias. We have jurisdiction under 28 U.S.C. § 1291 , and we reverse.

I

Just before 10:00 p.m. on a spring night, dispatchers received a 911 “hang up” call. The call was traced to a home in a…

concurring:

I agree with the majority’s opinion in this case. I write separately to address Krechman’s judicial bias claim. 1 I agree it is unnecessary to reach this claim, given our reversal of the district court’s Rule 50 decision. However, Krechman’s arguments identify conduct that is worrisome enough that it warrants some mention.

“A judge’s participation justifies a new trial ... if the record shows actual bias or leaves an abiding impression that the jury perceived an appearance of advocacy or partiality.” United States v. Laurins, 857 F.2d 529, 537 (9th Cir.1988). Here, the district judge conducted the trial in a way that could evidence that he was biased in favor of the defendant police officers, and could have given the jury the impression that he lacked impartiality.

Outside of the juror’s presence and before submitting the case to the jury, the district court indicated that it had prejudged the case’s outcome by telling counsel that he would “fix it” if the jury did not “get it right.” In context, this statement implied that the “right” outcome would be for the jury to reach a defense verdict by rejecting the testimony by one of Krechman’s experts.

*1113 Also in…