FILED

NOT FOR PUBLICATION

MAR 18 2021

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

GULSTAN E. SILVA, Jr., as Personal No. 20-15381 Representative of the Estate of Sheldon Paul Haleck; JESSICA Y. HALECK, D.C. No. Individually, and as Guardian Ad Litem of 1:15-cv-00436-HG-KJM Jeremiah M. V. Haleck; WILLIAM E.

HALECK; VERDELL B. HALECK,

MEMORANDUM*

Plaintiffs-Appellants,

v.

CITY AND COUNTY OF HONOLULU;

CHRISTOPHER CHUNG; SAMANTHA

CRITCHLOW; STEPHEN KARDASH,

Defendants-Appellees.

Appeal from the United States District Court for the District of Hawaii Helen W. Gillmor, District Judge, Presiding

Argued and Submitted February 1, 2021 Honolulu, Hawaii

Before: CLIFTON, R. NELSON, and COLLINS, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Plaintiff-Appellant Gulstan E. Silva, Jr., as Personal Representative of the

Estate of Sheldon Paul Haleck (“Estate”), brought claims against police officers

Christopher Chung, Samantha Critchlow, and Stephen Kardash (“Officers”) and

the City and County of Honolulu (“City”) (together, the “Defendants”) based upon

an incident after which Mr. Haleck died. Some of the claims were resolved by the

District Court in favor of Defendants by motions. A claim for excessive force in

violation of the Fourth Amendment went to trial, and the jury returned a verdict in

favor of the Officers. The Estate appeals. We have jurisdiction under 28 U.S.C.

§ 1291. We affirm.

1. The “jury’s verdict must be upheld if it is supported by substantial

evidence . . . even if it is also possible to draw a contrary conclusion.” Pavao v.

Pagay, 307 F.3d 915, 918 (9th Cir. 2002). The Estate argues that it is entitled to

judgment as a matter of law despite the verdict to the contrary. It cites no authority

supporting that result in circumstances like these, and we know of none.

Nonetheless, it argues that the District Court was required as a matter of law to

enter judgment in its favor on the Fourth Amendment claim under the objective

reasonableness test discussed by the Supreme Court in Graham v. Connor, 490

U.S. 386, 395-96 (1986). The primary lesson to be drawn from that decision is that

“[t]he ‘reasonableness’ of a particular use of force must be judged from the

2 perspective of a reasonable officer on the scene, rather than with the 20/20 vision

of hindsight.” Id. at 396. The arguments that the Officers could and should have

acted differently, such as that they should have blocked traffic, did not mean that

the Officers were not permitted to act based on the risks they perceived, including

risks posed by traffic on a busy street, when Mr. Haleck was walking in and

refused to leave that street. Nor was the jury required to disregard the conditions

confronting the Officers in deciding whether the force they employed to try to

bring Mr. Haleck under control was excessive. Even if the dangers posed by traffic

were disregarded, there was evidence that Mr. Haleck physically charged one

officer and took a fighting stance toward another. Similarly, though the Estate

emphasizes that the techniques used by the Officers—the use of pepper spray and a

Taser—are characterized as “intermediate” force, the Officers did not use “deadly”

force, such as firearms. Further, the Officers only employed pepper spray after

verbal warnings were ineffective in controlling Mr. Haleck and only employed the

Taser when he did not respond to the pepper spray. The jury was entitled to weigh

all of those facts. Substantial evidence supported the jury’s determination that the

Officers did not use excessive force. The District Court did not err in declining to

enter judgment for the Estate as a matter of law.

3 2. We review denials of a motion for a new trial for abuse of discretion.

Graves v. City of Coeur D’Alene, 339 F.3d 828, 839 (9th Cir. 2003), abrogated on

other grounds by OTR Wheel Eng’g, Inc. v. W. Worldwide Servs., Inc., 897 F.3d

1008, 1016 (9th Cir. 2018). The Estate has taken a shotgun approach in contesting

several of the District Court’s rulings. However, to the extent that any of the

rulings were actually erroneous, the Estate does not establish that they were

prejudicial. See, e.g., McEuin v. Crown Equip. Corp., 328 F.3d 1028, 1032 (9th

Cir. 2003) (“To reverse on the basis of an evidentiary ruling, this Court must

conclude both that the district court abused its discretion and that the error was

prejudicial.”); Dang v. Cross, 422 F.3d 800, 805 (9th Cir. 2005) (“‘In evaluating

jury instructions, prejudicial error results when, looking to the instructions as a

whole, the substance of the applicable law was [not] fairly and correctly covered.’”

(alteration in original) (citation omitted)). Many of the disputed rulings concerned

evidence that related to the cause of Mr. Haleck’s death, for example, but that was

a factual issue that the jury never reached, after it concluded that the Officers had

not used excessive force. Viewed individually or collectively, they do not establish

that the denial of the motion for a new trial was an abuse of discretion.

3. We review summary judgments de novo. Ward v. Ryan, 623 F.3d 807,

810 (9th Cir. 2010). The Estate argues that the District Court erred in granting

4 summary judgment in favor of the Officers on its Fourteenth Amendment claim.

The District Court did not err when it applied the “purpose to harm” standard,

applicable to escalating situations where officers are required to make quick

decisions, instead of the “deliberate indifference” standard, used for situations

where deliberation is practical. Compare Porter v. Osborn, 546 F.3d 1131, 1137

(9th Cir. 2008) (purpose to harm), with Gantt v. City of Los Angeles, 717 F.3d 702,

707 (9th Cir. 2013) (deliberate indifference). As we explained in Porter, “when an

officer encounters fast paced circumstances presenting competing public safety

obligations, the purpose to harm standard must apply.” 546 F.3d at 1139. The

situation presented here resembled the situation presented in Porter. In this case,

the Officers arrived on the scene and tried to act quickly to move Mr. Haleck off

the street for his safety and the safety of others. He was in custody within five

minutes. Porter similarly considered a five-minute altercation between police and

an unarmed, disoriented individual. The “purpose to harm” standard was properly

applied here. As there was no evidence that the Officers intended to “harm,

terrorize, or kill” the deceased, summary judgment was proper. Id. at 1141.

4. Based on the jury’s verdict’s finding that the Officers did not use

excessive force, the Estate’s Monell claims for “failure to train” and “failure to

discipline” also fail. See Gregory v. Cnty. of Maui, 523 F.3d 1103, 1109 (9th Cir.

5 2008) (holding that the claims against the county, including based on a failure to

train, necessarily failed based on the conclusion that the officers did not use

excessive force).

5. The Estate did not plead facts sufficient to overcome the Officers’ state

law qualified immunity defense, which protects officers from tort liability unless

there is a showing of malice. Towse v. State, 647 P.2d 696, 702 (Haw. 1982). With

no evidence of malice, the Estate based its claim on the allegation of unreasonable

use of force under the Fourth Amendment. Since that claim failed, so too does this

claim.

6. Awards of costs are reviewed for abuse of discretion. Draper v. Rosario,

836 F.3d 1072, 1087 (9th Cir. 2016). The Estate did not provide sufficient

evidence of financial hardship to rebut the presumption that costs are to be taxed in

favor of the prevailing party. There are remaining life insurance proceeds being

held to cover litigation expenses. The District Court did not abuse its discretion.

AFFIRMED.

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