Gulliford
Gulliford v. Pierce County
Opinion
Concurrence in Part
Scannlain, J.
concurring in part and dissenting in part.
I would affirm the judgment of the district court. Regrettably, I cannot join Section II.A’s discussion of the jury instruction on verbal opposition to police action, which, in my view, threatens “[tjhis court[’s] ... reputation as the strictest enforcer of Rule 51,” Hammer v. Gross, 932 F.2d 842, 847 (9th Cir.1991), and creates a direct intra-circuit conflict with Grosvenor Properties Ltd. v. Southmark Carp., 896 F.2d 1149 (9th Cir.1990). Therefore, I respectfully dissent and would not reach the question of qualified immunity, which the majority discusses in Part III.
I
Fed.R.Civ.P. 51 (emphasis added). Our court has “interpreted this rule strictly and ha[s] stated that, ‘[i]n a civil case, we may not review a jury instruction in the absence of a proper objection.’” McGonigle v. Combs, 968 F.2d 810, 823 (9th Cir.1992) (quoting Larez v. City of Los Angeles, 946 F.2d 630, 638 (9th Cir.1991)); see also 9 C. Wright & *1352 A. Miller, Federal Practice and Procedure § 2558, at 674 (1971) (“[T]he Ninth Circuit stands alone in reading Civil Rule 51 literally and denying that there is any power to reverse .for plain error in an unobjected-to…
Lead Opinion
Fletcher, J.
Opinion by Judge FLETCHER; Partial Concurrence and Partial Dissent by Judge O’SCANNLAIN.
Herbert Gulliford appeals the judgment entered following a jury trial in his 42 U.S.C. § 1983 action against Pierce County and various law enforcement officials alleging that his constitutional rights were violated when he was arrested for obstructing-a public servant and resisting arrest. Gulliford contends that the district.court erred in its instrue- *1347 tions to the jury regarding his wrongful arrest and excessive force claims. We have jurisdiction under 28 U.S.C. § 1291 , and we affirm in part, reverse in part, and remand for a new trial.
I.
On the evening of September 6,. 1992, a group of individuals were gathered around a fire on the north beach of. Herron Island, a small privately owned island located just within the borders of Pierce County, Washington, west of Key Peninsula. At about 9:20 p.m. that night, the Pierce County Sheriffs Department (“PCSD”) received a call that someone in the environs of the group had threatened a woman’s family. About two hours later, the PCSD received a report that “J.D.”, a member of the group gathered on the beach, had threatened a firefighter who…