C. B. v. City of Sonora

Opinion by Judge PAEZ as to all but Part II.C.l; Opinion by Judge M. SMITH as to Part II.C.l; Partial Concurrence and Partial Dissent by Judge M. SMITH; Concurrence by Judge GOULD; Partial Concurrence and Partial Dissent by Judge BERZON.

OPINION

This case arises out of a decision by Sonora City Police Department officers to handcuff and remove from school grounds an 11-year-old child with attention-deficit and hyperactivity disorder (“ADHD”) who was doing nothing more than sitting quietly and resolutely in the school playground. After a seven-day trial, a jury found that the City of Sonora, Sonora Chief of Police Mace McIntosh, and Officer Harold Prock (collectively “Defendants”) were liable for violating C.B.’s Fourth Amendment rights and for tortious acts. The district court subsequently entered judgment on the verdict, and. Defendants appeal.

We must decide two central issues. First, we must decide whether the district court’s supplemental jury instructions were proper. To resolve this question, we also must determine whether litigants may object to civil jury instructions for the first time on appeal and, if so, what standard of review governs such challenges. Second, we…

concurring in part, and dissenting in part, with whom O’SCANNLAIN, TALLMAN, and BYBEE, Circuit Judges, join in full, and with whom KOZINSKI, Chief Judge, and GRABER and GOULD, Circuit Judges, join as to Part I, which is the opinion of the court:

A majority of the en banc court agrees that Chief McIntosh and Officer Prock (the officers) are entitled to qualified immunity with respect to C.B.’s unlawful seizure claim. A reasonable officer would not have known that taking a child in C.B.’s situation into temporary custody was unreasonable, and therefore unconstitutional. However, I respectfully dissent from the majority’s conclusion denying the officers qualified immunity with respect to C.B.’s excessive force claim. In my view, the officers are entitled to qualified immunity on both of C.B.’s Fourth Amendment claims because the constitutional rights at issue in this case were neither clearly established nor “obvious” at the time C.B. was taken into temporary custody.

To determine whether an officer is entitled to qualified immunity, we consider (1) whether he violated a constitutional right and (2) whether the constitutional right was clearly established. Pearson v. Callahan, 555…

with whom KOZINSKI, Chief Judge, and GRABER, Circuit Judge, join, concurring in part in Judge PAEZ’s opinion and concurring in part in Judge M. SMITH’S opinion:

I join Parts I, II.A, II.B, II.C.2, and II.D of Judge Paez’s opinion, concerning the factual background, rejection of the challenges to jury instructions and to evi-dentiary rulings, and the conclusions that Chief McIntosh and Officer Prock used excessive force in violation of the Fourth Amendment when, in removing C.B. from school grounds, they handcuffed him for 25 to 30 minutes and that they are not entitled to qualified immunity for handcuffing C.B.

I join in Part I of Judge M. Smith’s opinion, concerning the unlawful seizure claim, concluding that the officers are entitled to qualified immunity as to the seizure of C.B.

On the issue of unlawful seizure: T.L.O.’s reasonableness standard requires that a search be “justified at its inception” and, “as actually conducted,” be “reasonably related in scope to the circumstances which justified the interference in the first place.” New Jersey v. T.L.O., 469 U.S. 325, 341 , 105 S.Ct. 733 , 83 L.Ed.2d 720 (1985) (internal quotation marks omitted). We should give weight to…

with whom Judge THOMAS joins, concurring in part and dissenting in part:

I concur in Judge Paez’s opinion, with one exception: as to C.B.’s unlawful seizure claim, I concur in the result reached by Judge Paez but would reach that result via different reasoning.

As to the seizure issue, the reliance on New Jersey v. T.L.O., 469 U.S. 325 , 105 S.Ct. 733 , 83 L.Ed.2d 720 (1985), in the three other opinions in this case is, in my view, entirely beside the point. The police officer defendants have consistently maintained that they seized C.B. because they had reasonable cause to believe he was a child covered by California Welfare and Institutions Code section 601(a). But section 601(a) does not cover C.B.’s circumstance, nor could a reasonable police officer have thought it did. As the defendants have never suggested that they could, or did, seize C.B. to enforce the school’s own rules and disciplinary needs, we should be reviewing their actual defense, not manufacturing one for them.

I.

We are reviewing a judgment entered after a jury trial. Over the course of that trial, the police officers repeatedly explained that they took C.B. into custody pursuant to the Welfare and…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

C. B., a minor, No. 11-17454 Plaintiff-Appellee, D.C. No. v. 1:09-cv-00285-

AWI-SMS

CITY OF SONORA; MACE MCINTOSH,

Chief of Police; HAL PROCK, Officer, OPINION Defendants-Appellants.

Appeal from the United States District Court for the Eastern District of California Oliver W. Wanger, Senior District Judge, Presiding

Argued and Submitted En Banc March 17, 2014—San Francisco, California

Filed October 15, 2014

Before: Alex Kozinski, Chief Judge, and Diarmuid F. O’Scannlain, Sidney R. Thomas, Barry G. Silverman, Susan P. Graber, Ronald M. Gould, Richard A. Paez, Marsha S. Berzon, Richard C. Tallman, Jay S. Bybee and Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Paez as to all but Part II.C.1.; Opinion by Judge M. Smith as to Part II.C.1; Partial Concurrence and Partial Dissent by Judge M. Smith; Concurrence by Judge Gould; Partial Concurrence and Partial Dissent by Judge Berzon SUMMARY*

Civil Rights

The en banc court affirmed in part and reversed in part the district court’s judgment…