Schmidlin

Plaintiff Michael Schmidlin brought this action against the City of Palo Alto and several of its police officers, alleging that the officers committed various constitutional and common-law torts when they detained and arrested him for public drunkenness. After various claims were dismissed on legal grounds, a jury found that officers had used excessive force against plaintiff, but rejected claims of unlawful arrest and fabrication of police reports. Both parties appeal on numerous grounds. We find no reversible error, and affirm the judgment. [1]

According to plaintiff, he and two companions, Jim Walker and Bill D'Honau, were walking along a downtown Palo Alto street in the early morning hours of March 29, 1997, when they were accosted by two young women in a car driving the wrong way on the street. As plaintiff tried to persuade the women not to drive in their condition, defendant Bertrand Milliken, a Palo Alto police officer, arrived in his patrol car. Thinking the women were about to be arrested, plaintiff began to walk away. His companions, however, remained behind to watch, so plaintiff turned and waited for them near a sign. Plaintiff and his companions…

Plaintiff Michael Schmidlin brought this action against the City of Palo Alto and several of its police officers, alleging that the officers committed various constitutional and common law torts when they detained and arrested him for public drunkenness. After various claims were dismissed on legal grounds, a jury found that officers had used excessive force against plaintiff, but rejected claims of unlawful arrest and fabrication of police reports. Both parties appeal on numerous grounds. We find no reversible error, and affirm the judgment. 1

Background

According to plaintiff, he and two companions, Jim Walker and Bill D’Honau, were walking along a downtown Palo Alto street in the early morning hours of March 29, 1997, when they were accosted by two young women in a car driving the wrong way on the street. As plaintiff tried to persuade the women not to drive in their condition, defendant Bertrand Milliken, a Palo Alto police officer, arrived in his patrol car. Thinking the women were about to be arrested, plaintiff began to walk away. His companions, however, remained behind to watch, so plaintiff turned and waited for them near a sign. Plaintiff and his companions…

The majority opinion misconstrues both the evidence and the law in its analysis of the statute of limitations issue. As a result, the majority opinion erroneously rejects the City of Palo Alto’s (City) contention that it was entitled to prevail on its claim that the federal excessive force cause of action was barred by the statute of limitations. A correct analysis requires a conclusion that the City 1 was entitled to *781 prevail on its summary adjudication motion asserting that the statute of limitations barred Michael Schmidlin’s federal excessive force cause of action, which would have precluded Schmidlin from prevailing on that cause of action. Therefore, I must respectfully dissent.

I. The Statute of Limitations Issue

A. Preservation of Issue Below

Schmidlin argues that the City failed to preserve the statute of limitations issue for review on appeal because the issue was not raised at the jury trial, although the City raised the issue in its summary adjudication motion and in a motion for judgment notwithstanding the verdict.

1. Background

Schmidlin alleged in his complaint that the excessive force occurred on March 29, 1997, at the time of his arrest. He made no…