facts present an insufficient basis to imply bias, we find no plain error. Rodriguez,

891 F.3d at 805; see also C.B. v. Cty of Sonora, 769 F.3d 1005, 1018 (9th Cir.

2014) (en banc).

2. Baldwin also claims the district court suggested to the jury that Baldwin is

untruthful by inadequately explaining why it struck Baldwin’s unsworn testimony

while allowing defendants to use it for impeachment purposes. Again, we review

2 for plain error as Baldwin failed to raise a timely objection to the district court’s

explanation. Crowley, 883 F.3d at 748.

Any error in the district court’s explanation did not affect Baldwin’s

substantial rights for three reasons: (1) defendants never impeached Baldwin with

his unsworn testimony; (2) the district court, at the end of trial, instructed the jury to

“disregard” the unsworn testimony and “start[] with a clean slate”; and (3) Baldwin

testified consistently with the unsworn testimony. As Baldwin was not prejudiced

by the district court’s explanation, we find no plain error. See Claiborne, 934 F.3d

at 899 (quotations and citations omitted).

3. Finally, Baldwin claims the district court erred in instructing the jury to

defer to the judgment of prison officials regarding the execution of security-related

actions. In that respect, he argues the district court should have qualified this

instruction with the following: “deference is not appropriate when the prison practice

in question serves no legitimate penological purpose, or plaintiff has produced

substantial evidence that the practice was an unnecessary, unjustified, or exaggerated

response to jail officials’ need for prison security.”

We need not decide whether Baldwin waived this argument by acquiescing in

the challenged charge. Because he failed to object to the charge, we would be

obliged, in any event, to review for plain error. See Crowley, 883 F.3d at 748.

3 Plain errors in civil jury instructions are corrected only if “review is needed

to prevent a miscarriage of justice, meaning that the error seriously impaired the

fairness, integrity, or public reputation of judicial proceedings.” C.B., 769 F.3d at

1019 (internal quotations omitted). This is because “the stakes are lower in the civil

context and, consequently, plain errors should encompass only those errors that

reach the pinnacle of fault.” Id. at 1018 (internal quotations omitted).

Throughout the trial the focus of the testimony, as well as the court’s

instructions, was whether the officers used excessive force while the plaintiff was

being escorted to his new housing unit. The Use of Force Policy referenced

throughout the trial simply tracked the law applicable to the deployment of excessive

force. See 15 C.C.R. § 3268. Accordingly, the failure of the court to qualify its

legally correct deference charge was “more probably than not harmless,” Caballero

v. City of Concord, 956 F.2d 204, 206 (9th Cir. 1992), and certainly did not rise to

the “pinnacle of fault,” C.B., 769 F.3d at 1018.

The district court’s judgment is AFFIRMED.

4

FILED

JUN 25 2020

Baldwin v. J. Fannon, No. 14-17173

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

Wallace, Senior Circuit Judge, concurring in part and dissenting in part:

Although I agree with the majority’s first two conclusions (regarding the

district court’s alleged failure to strike certain jurors sua sponte and the district

court’s allegedly prejudicial explanation of why it struck Baldwin’s unsworn

testimony), I disagree with the third (regarding the deference jury instruction).

The key jury instruction consisted of the following:

In determining whether defendants Fannon and Gray used excessive force in this case, consider the need to use force, the relationship between that need and the amount of force used, whether the defendants applied the force in a good-faith effort to maintain or restore discipline, and any threat reasonably perceived by defendants, any efforts made to temper the severity of a forceful response, and the extent of the injuries suffered. In considering these factors, you should give deference to prison officials in the adoption and execution of policies and practices that in their judgment are needed to preserve discipline and maintain internal security in a prison. (emphasis added)

Quoting the comments to our model jury instructions, Baldwin argues that the

district court erred when it instructed the jury to defer to prison officials because

“such deference is not appropriate when the prison practice in question serves no

legitimate penological purpose, or plaintiff has produced substantial evidence that

the practice was an unnecessary, unjustified, or exaggerated response to jail

officials’ need for prison security.” Model Civ. Jury Instr. 9th Cir. 9.26 cmt. (2019), citing Shorter v. Baca, 895 F.3d 1176, 1184 (9th Cir. 2018). Baldwin contends that

the district court’s failure to add this “essential caveat” resulted in the court “failing

to provide a complete instruction.” Although Baldwin’s arguments are largely

framed in terms of the instruction provided being incomplete, Baldwin’s argument

is essentially that the “district court committed reversible plain error when it

instructed the jury that deference should be afforded to defendants.” (cleaned up)

I would reject the Defendants’ waiver argument and analyze Baldwin’s

argument for plain error because there is no “evidence in the record that [Baldwin]

was aware of, i.e., knew of, the relinquished or abandoned right” to more measured

jury instructions. United States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997) (en banc);

see also Crowley v. Epicept Corp., 883 F.3d 739, 748 (9th Cir. 2018) (holding that

a “party forfeits a right when it fails to make a timely assertion of that right and

waives a right when it is intentionally relinquished or abandoned” (internal quotation

marks and citations omitted)). Here, there is no evidence that Baldwin was aware

that this deference instruction was inappropriate at the time he and the Defendants

jointly submitted proposed jury instructions. See U.S. v. Lindsey, 634 F.3d 541, 555

(9th Cir. 2011) (“Although Lindsey did stipulate to the erroneous jury instruction,

the record does not show that there was ever a discussion about the instruction in

any court proceedings or filings. We therefore find that Lindsey did not affirmatively

act[] to relinquish a known right, and . . . proceed with plain-error review” (internal

2 quotation marks and citation omitted)). In fact, the main authority upon which

Baldwin relies to challenge the jury instruction was published nearly five years after

the jury was instructed in this case. Accordingly, I would hold that Baldwin merely

failed to make a timely assertion of this argument, which results not in waiver, but

in forfeiture. Thus, I would review Baldwin’s challenge for plain error. Id.

“Under plain error review, we may reverse only where: (1) there was an error;

(2) the error was obvious; (3) the error affected substantial rights; and, (4) the error

seriously affects the fairness, integrity, or public reputation of judicial proceedings.”

Claiborne v. Blauser, 934 F.3d 885, 893 (9th Cir. 2019) (citation omitted). I

conclude that each of these requirements is satisfied here.

The Defendants argue that there was no error because the instruction correctly

stated the law. It is true that the jury instruction at issue mirrors a Supreme Court

case that we cited favorably as recently as 2010. See Bell v. Wolfish, 441 U.S. 520,

547 (1979); Norwood v. Vance, 591 F.3d 1062, 1067 (9th Cir. 2010) (“Bell remains

good law”). However, Norwood preceded our opinion in Shorter v. Baca, 895 F.3d

1176 (9th Cir. 2018), which clarified the circumstances in which that deference

instruction should be provided and the circumstances in which the question of

deference should be left to the jury.

In Shorter, we explained “that the instruction may be given only when there

is evidence that the treatment to which the plaintiff objects was provided pursuant

3 to a security-based policy.” Id. at 1184 (citation omitted). We further explained that

“determinations about whether to defer to jail officials are often fact-intensive and

context-dependent.” Id. at 1189. For that reason, we have “left it to the jury to decide

whether deference to jail officials is warranted where there is a genuine dispute of

material fact over whether the jail’s policies or practices were unnecessary,

unwarranted, or exaggerated.” Id. at 1190, citing Mendiola-Martinez v. Arpaio, 836

F.3d 1239, 1257 (9th Cir. 2016).

Here, there is a genuine dispute of material fact regarding whether the

Defendants’ responses to Baldwin’s ceasing to walk while being escorted by the

Defendants were “unnecessary, unwarranted, or exaggerated.” This is a Section

1983 excessive force case: the main issue at trial was whether Officers Gray and

Fannon applied appropriate and proportional force in responding to Baldwin’s stop.

Each side points to substantial evidence regarding how the officers responded and

regarding whether Baldwin posed a security threat to justify their reactions.

Because of this genuine dispute of material fact, the district court should have

“left it to the jury to decide whether deference to jail officials is warranted” instead

of instructing them that deference was required. Shorter, 895 F.3d at 1190; see also

Mendiola-Martinez, 836 F.3d at 1255 (holding there were genuine issues of disputed

fact about whether a jail’s decision to shackle a detainee during a C-section was an

exaggerated response to a security threat).

4 To reverse on plain error review, the error must be “so obvious [that] a

competent district judge should be able to avoid it without benefit of objection.”

Claiborne, 934 F.3d at 898 (quotations omitted). The Defendants point out that the

district court’s instruction was identical to the instruction in Norwood, in which we

held the district court erred by refusing to provide the instruction on the grounds that

the word “deference” would not be “clear to a lay person.” Norwood, 591 F.3d at

1067. However, Norwood did not address the legal principle articulated in Shorter,

which is at issue here: whether the deference jury instruction would be inappropriate

under the circumstances of this case. Finally, it is irrelevant that the trial judge’s

instructions pre-date Shorter and the comments to the model jury instructions

formulated in light of Shorter. Rather, “it is enough that an error be ‘plain’ at the

time of appellate consideration for the second part of the four-part” plain error test

to be “satisfied.” Henderson v. United States, 568 U.S. 266, 279 (2013) (cleaned up).

The majority reasons that the court’s deference charge was “legally correct”

(if not sufficiently qualified by limiting instructions) because the “Use of Force

Policy referenced throughout the trial simply tracked the law applicable to the

deployment of excessive force.” (citing 15 C.C.R. § 3268). However, the jury

instruction in question bears only a passing resemblance to California’s use of force

regulations. Those regulations define reasonable force as the “force that an objective,

trained and competent correctional employee, faced with similar facts and

5 circumstances, would consider necessary and reasonable . . . .” 15 C.C.R.

§ 3268(a)(1). By contrast, the jury instruction at issue required the jury to accord

“deference to prison officials in the . . . execution of policies and practices that in

their judgment are needed to . . . maintain internal security in a prison.” (emphasis

added). In other words, while the regulations ask what an objectively-reasonable

officer would find necessary, the jury instructions simply require deference to the

Defendants’ judgment as to what was necessary.

Addressing the third and fourth parts of the plain-error test, the majority also

concludes that the district court’s failure to qualify its deference charge was “more

probably than not harmless” and “certainly did not rise to the pinnacle of fault.” I

disagree. This is a Section 1983 excessive force case in which the main issue at trial

was whether Officers Gray and Fannon used appropriate and proportional force in

response to Baldwin’s stop. The jurors were instructed to consider certain factors in

determining whether the Defendants used excessive force, such as “the need to use

force” and “the relationship between that need and the amount of force used.”

However, in “considering” these crucial factors, the jury was instructed it “should

give deference to prison officials in the . . . execution of policies and practices that

in their judgment are needed to . . . maintain internal security in a prison.” (emphasis

added). This instruction effectively hindered the jury from impartially weighing the

key question in this case: whether the force that the Defendants used on Baldwin—

6 who was visibly disabled and in restraints—was excessive in the jury’s judgment.

As Baldwin’s counsel so aptly put: “To ask the question was to answer it”: because

the force was reasonable in the Defendants’ judgment, the jury should defer to their

judgment.

Moreover, I do not conclude that this erroneous instruction was “more

probably than not harmless.” Caballero v. City of Concord, 956 F.2d 204, 206 (9th

Cir. 1992). The Defendants have not proffered any evidence overcoming the

presumption that the jury deferred to the Defendants’ judgment about what was

necessary to maintain security—precisely as the district court instructed. See Weeks

v. Angelone, 528 U.S. 225, 234 (2000) (a “jury is presumed to follow its instructions”

(citation omitted)). Indeed, the record reveals that there was ample basis for a

properly-instructed jury to conclude that the amount of force employed was

excessive. Baldwin asserted that the officers shoved him against a wall and held him

there by his neck even though he had a preexisting neck injury, was wearing a neck

brace, and was already controlled by waist restraints. Although the Defendants argue

that holding Baldwin against the wall served the security purpose of limiting

Baldwin’s range of motion, Baldwin pointed out that his range of motion was already

substantially limited by the physical restraints he was wearing and that Officers

Fannon and Gray testified at trial that they did not subjectively perceive Baldwin as

7 a threat. On this record, we should not conclude that the instruction was “more

probably than not harmless.” Caballero, 956 F.2d at 206.

Accordingly, I would hold that the district court’s instruction deprived

Baldwin of a meaningful and fair opportunity to seek redress for alleged violations

of his constitutional right to be free from cruel and unusual punishment, and I would

reverse and remand this case for a new trial.

8