Gulliford

MEMORANDUM **

Herbert Gulliford appeals from an adverse verdict in his § 1983 action against Pierce County and various law enforcement officers. Gulliford claimed that his arrest by the deputy sheriffs violated his Fourth Amendment rights. On a prior appeal, we affirmed a defense verdict on his excessive force claim. However, we remanded because the court’s instruction had permitted the jury to find probable cause to arrest on the basis of words that we held as a matter of law did not constitute fighting words. See Gulliford v. Pierce County, 136 F.3d 1345 (9th Cir. 1998) (Gulliford I) (stating the relevant facts). At the conclusion of the second trial, the jury again returned a verdict for the defendants. Gulliford’s motion for a directed verdict was denied.

Gulliford contends that Instruction No. 16 permitted the jury to find that his statements to the deputies were fighting words and therefore not protected by the First Amendment. Gulliford I held that the words spoken by him as a matter of law were not fighting words. 136 F.3d at 1350 . “[I]f a jury instruction is erroneous, we will reverse the judgment unless the error is more probably than not harmless.” Id. (quoting…

dissenting.

I respectfully dissent from the majority’s holding that Jury Instruction No. 10, on failure to disperse, violated the law of the case and was an abuse of discretion.

The district court, in Gulliford’s first trial, never ruled that the jury could not consider failure to disperse as a ground for probable cause to arrest. To the contrary, the court stated that there was a material issue of fact regarding whether Thrash had probable cause to arrest Gulliford based on failure to disperse and allowed both lay and expert testimony on the issue of failure to disperse. Instead of specifically instructing the jury on failure to disperse, however, the court provided only a more general obstruction instruction. 1 When Deputy Thrash requested a specific jury instruction on failure to disperse, the court indicated that failure to disperse was arguable under the more general obstruction instruction, stating: “Almost all of the theories that have been discussed this morning in this brief discussion are in these jury instructions. I have put them in different ways, obviously, than counsel suggested, but a great deal of what you have urged here by way of exception is entirely arguable…