Forrester
Forrester v. City of San Diego
Opinion
Lead Opinion
Hall, J.
Opinion by Judge HALL; Dissent by Judge KLEINFELD.
Anti-abortion demonstrators who were arrested for trespass and unlawful assembly appeal (1) the district court judgment that the City of San Diego’s policy regarding pain compliance arrest techniques was constitutional and (2) the jury verdict that San Diego’s police officers did not use excessive force in executing their arrests. Because sufficient evidence supported the jury verdict, we affirm without deciding whether the city’s policy authorized unreasonable uses of force.
I.
In March 1989, San Diego police became aware that Operation Rescue planned to stage several anti-abortion demonstrations in the city. 1 Cognizant of the protest tactics used by Operation Rescue members in other demonstrations, San Diego Police Chief Bur-green met with his staff to formulate a plan of action. After considering several options, Burgreen adopted a policy for dispersing and arresting demonstrators who trespassed on and blocked entrances to private medical clinics.
The policy provided for the police first to give the protesters an opportunity to avoid arrest by leaving the premises after a verbal warning. The police were then to arrest…
Dissenting Opinion
Kleinfeld, J.
dissenting:
I respectfully dissent.
The parties agreed to this stipulation of facts about Donna Niehouse’s arrest:
The use of nonchakus to hurt these nonviolent, passive demonstrators was unconstitutional as a matter of law, because it was both ineffective and unnecessarily brutal.
Before explaining my reasons for dissenting, 1 shall point out some important things we have not decided. First, we have not decided that pain compliance techniques are constitutionally permissible as a matter of law. We have done no more than let a jury verdict stand because there was evidence on which the majority believes rational jurors could have based a verdict. The identical facts could easily have resulted in substantial damages awards which would have been upheld on the same principles which led -to the affirmance in this case. Municipal officials would be mistaken to think that this decision approves the use of pain compliance on Operation Rescue demonstrators. Second, we have not decided whether plaintiffs’ First Amendment rights were violated. Police Chief Burgreen testified that only the pro-life demonstrators of Operation Rescue, not other demonstrators, have been subjected to a policy…