Moore v. Richmond Police Department

MEMORANDUM *

Gary Moore appeals from the district • court’s judgment following a jury verdict in favor of defendants in his 42 U.S.C. § 1983 action, and from the district court’s *704 denial of his motion for a new trial Moore alleged that officers of the City of Richmond Police Department used excessive force when they arrested him on October 16, 2002. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm. Because the parties are familiar with the facts and procedural background, we will not recount them here except as may be required in discussing a particular appellate issue.

I

The district court ruled that evidence of Moore’s prior 1998 conviction for attempted grand theft person was admissible for impeachment purposes under Fed. R.Evid. 609. We review evidentiary rulings for abuse of discretion. United States v. Plancarte-Alvarez, 366 F.3d 1058, 1062 (9th Cir.2004). An erroneous decision to admit evidence will be reversed only if the error was prejudicial. Simpson v. Thomas, 528 F.3d 685, 689 (9th Cir.2008); Powell v. Levit, 640 F.2d 239, 241 (9th Cir.1981). This court will find prejudice when it is persuaded that the admission affected the outcome of the…

dissenting in part:

I concur in the proposed memorandum disposition except with regard to the most important jury instruction, the one concerning whether the police used excessive force against Moore.

“[J]ury instructions must fairly and adequately cover the issues presented, must correctly state the law, and must not be misleading.” Hunter v. Cnty. of Sacramento, 652 F.3d 1225, 1232 (9th Cir.2011) (quoting Dang v. Cross, 422 F.3d 800, 804 (9th Cir.2005)) (internal quotation marks omitted). Because the excessive force instruction as likely understood by the jury was legally erroneous, I would reverse the verdict.

Here is the instruction that was given:

*707 In general, a seizure of a person is unreasonable under the Fourth Amendment if a police officer uses excessive force in making a lawful arrest and/or in defending himself or others and/or in interacting with arrested subjects. Thus, in order to prove an unreasonable seizure in this case, Mr. Moore must prove by a preponderance of the evidence that the Defendant officer(s) used excessive force when they took any of the following actions:

1) Used force and inflicted injuries upon Mr. Moore once he was in handcuffs at the…

FILED

NOT FOR PUBLICATION OCT 24 2012

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

GARY BERNARD MOORE, No. 10-16082

Plaintiff - Appellant, D.C. No. 3:04-cv-01749-MMC

v.

MEMORANDUM*

RICHMOND POLICE DEPARTMENT;

et al.,

Defendants,

and

S. ZEPPA; et al.,

Defendants - Appellees.,

and

KELLY HARRINGTON, Warden,

Respondent.

Appeal from the United States District Court for the Northern District of California Maxine M. Chesney, Senior District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Argued and Submitted September 10, 2012 San Francisco, California

Before: ALARCÓN, THOMAS, and BERZON, Circuit Judges.

Gary Moore appeals from the district court’s judgment following a jury verdict in

favor of defendants in his 42 U.S.C. § 1983 action, and from the district court’s

denial of his motion for a new trial. Moore alleged that officers of the City of

Richmond Police Department used excessive force when they arrested him on

October 16, 2002. We…