Wagner

Opinion by Judge NOONAN; Dissent by Judge N.R. SMITH.

OPINION

Yvon Wagner, as the personal representative of the estate of her brother, Eric Vogel, appeals the judgment of the district court in favor of the defendants, County of Maricopa and Joseph Arpaio. We reverse the judgment and remand for a new trial.

FACTS

Eric Vogel was born on December 21, 1964. By the age of six, he was showing signs of potential illness. His parents withdrew him from school when he was in the second grade, and he was thereafter home-schooled until he graduated from high school. He attended a community college for two semesters and part of a semester at Arizona State University. Thereafter, he simply lived at home.

Living at home, without further formal education, Vogel had no gainful employment and lived a remarkably restricted life. The windows of his home itself were covered with blankets and tape so that no one could see in. After his father’s death or departure, he lived alone with his mother. He left the home no more than two or three times to attend the funerals of relatives. In October 2001, when Vogel was 36, his sister, Yvon Wagner, visited the home and found him to be delusional,…

dissenting:

In its opinion, the majority fails to correctly construe the hearsay rule and fails to give the proper deference to the district court’s other evidentiary rulings. I must therefore dissent because:

1. Assuming (but not deciding) that a de novo standard of review applies when determining whether a statement is hearsay, the majority fails to properly construe the hearsay rule. Under the hearsay rule, statements asserting a declarant’s beliefs are hearsay, if offered to prove the declarant’s belief or offered for a purpose that *984 requires the declarant to believe the matters asserted are true. Therefore, the district court did not err in concluding that Yvon Wagner’s testimony was hearsay.

2. The majority fails to apply the “substantially deferential” abuse of discretion test, recently elucidated by our en banc panel in United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir.2009) (en banc), for the remaining evidentiary issues appealed here. Though an appellate jurist may have ruled differently on these issues, “we may not simply substitute our view for that of the district court, but rather must give the district court’s findings deference.” Id.

I.

STANDARD OF…

Joel B. Robbins (on the brief), John M. Curtin (argued), Phoenix, AZ, for the plaintiff-appellant.

Eileen D. Gilbride, Phoenix, AZ, for the defendants-appellees.

Before: JOHN T. NOONAN and N. RANDY SMITH, Circuit Judges, and FREDERIC BLOCK, Senior District Judge. [*]

Opinion by Judge NOONAN; Dissent by Judge N.R. SMITH.

NOONAN, Circuit Judge:

Yvon Wagner, as the personal representative of the estate of her brother, Eric Vogel, appeals the judgment of the district court in favor of the defendants, County of Maricopa and Joseph Arpaio. We reverse the judgment and remand for a new trial.

Eric Vogel was born on December 21, 1964. By the age of six, he was showing signs of potential illness. His parents withdrew him from school when he was in the second grade, and he was thereafter home-schooled until he graduated from high school. He attended a community college for two semesters and part of a semester at Arizona State University. Thereafter, he simply lived at home.

Living at home, without further formal education, Vogel had no gainful employment and lived a remarkably restricted life. The windows of his home itself were covered with blankets and tape so that no one could see…