Morales v. Fry

          Argued and Submitted May 10, 2017 Seattle, Washington

         Appeal from the United States District Court for the Western District of Washington No. D.C. No. 2:12-cv-02235-JCC John C. Coughenour, District Judge, Presiding

          Darryl Parker (argued), Civil Rights Justice Center PLLC, Seattle, Washington, for Plaintiff-Appellant/Cross-Appellee.

          Robert L. Christie (argued), Christie Law Group PLLC, Seattle, Washington; Peter S. Holmes, City Attorney; Christine L. Olson, Assistant City Attorney; Seattle City Attorney's Office, Seattle, Washington; for Defendants-Appellees/Cross-Appellants.

          Before: M. Margaret McKeown, Carlos T. Bea, and N. Randy Smith, Circuit Judges.

         SUMMARY ^[*]

         Civil Rights

         The panel affirmed in part and vacated in part the district court's judgment entered following a jury trial, in an action alleging that plaintiff was subjected to excessive force by police officers during a May Day protest in Seattle, and remanded.

         The jury found for plaintiff on her excessive force claim against Officer Rees, but not on her unlawful arrest and excessive force against Officer Fry, and awarded plaintiff $0 damages. After trial, the parties stipulated to $1 in nominal damages and the district court awarded plaintiff $165, 405 in attorney's fees as the prevailing party against Rees. Plaintiff appealed, arguing that two jury instructions impermissibly submitted the legal question of qualified immunity to the jury. On cross-appeal, the officers challenge the denial of qualified immunity to Rees on his Rule 50(b) motion for judgment as a matter of law, and the award of attorney's fees.

         The panel held the question of whether a particular constitutional right is "clearly established, " as part of the qualified immunity analysis, is a question of law that must ultimately be decided by a judge. The panel stated only a jury can decide disputed factual issues, while only a judge can decide whether the right was clearly established once the factual issues are resolved. The panel concluded that the district court erred in submitting the "clearly established" inquiry to the jury and that the error was not harmless with respect to plaintiff's claims against Officer Fry. The panel vacated the verdict with respect to plaintiff's unlawful arrest and excessive force claims against Officer Fry and remanded for a new trial on these claims.

         The panel held that the district court properly denied Officer Rees's motion for judgment as a matter of law on the issue of qualified immunity. The panel stated that because the jury found in favor of plaintiff on her excessive force claim against Officer Rees, the district court was required to construe the trial evidence in the light most favorable to plaintiff in determining whether her rights were clearly established. Based on the evidence presented at trial, the panel concluded that the jury could have reasonably decided that Officer Rees's use of the pepper spray against plaintiff was retaliatory. The panel held that plaintiff had a clearly established right not to have pepper spray used against her for purposes of retaliation or intimidation and that intentionally pepper-spraying plaintiff for no legitimate law enforcement reason would likely constitute an obvious case of excessive force.

         The panel held that the district court did not abuse its discretion in awarding plaintiff $165, 405 in attorney's fees. The panel held that the district court properly weighed all three factors set forth in Justice O'Connor's concurrence in Farrar v. Hobby, 506 U.S. 103 (1992).

         Dissenting, Judge Bea stated that the district court did not err in submitting the jury instructions pertaining to qualified immunity to the jury, but even if submission of the instructions were error, plaintiff failed to preserve the issue for appeal.

          OPINION

          McKEOWN, CIRCUIT JUDGE

         The primary issue in this appeal is whether the "clearly established" prong of the qualified immunity analysis should be submitted to a jury. Following the lead of nearly all of our sister circuits, we conclude that it is a question of law that must ultimately be decided by a judge.

         Background

         This case arises from Maria Morales's arrest during the May 1, 2012 "May Day" protests in Seattle. Morales, who was attending one of the rallies, was in downtown Seattle when Seattle Police Department officers began forming a "bike perimeter" on Pike Street to create a zone where a person who was arrested earlier could be safely moved to a transport van.

         Officer Brian Rees asked Morales, who is five feet tall, 110 pounds, to move away from the street so that he could place his bicycle on the sidewalk as part of the perimeter. When Morales did not appear to hear him, he placed his right hand on her left shoulder to gain her attention. Rees testified that Morales pulled her arm away from him abruptly and said, "Get your fucking hand off of me" before stepping back.^[1] Rees then lost sight of Morales.

         Morales ended up squeezed between the sidewalk wall and the outside of the bike perimeter. She heard conflicting instructions from officers to move either east or west away from the perimeter. Eventually, there was an opening on the west side and Morales began to follow others who were moving west single file between the wall and the bike perimeter.

         The way was narrow and Morales testified that she needed to turn Officer Sonya Fry's protruding bicycle handlebar to the side to create room to pass. Fry testified that she simultaneously perceived what felt like a punch to her chest. Seeing Morales closest to her, Fry believed that Morales had punched her and yanked Morales headlong over the bike, causing Morales to fall on her back on top of other bikes within the bike perimeter zone. Multiple officers then converged upon Morales while she was on the ground.

         At some point during this altercation, with several officers holding Morales, Morales briefly lurched off the ground onto her feet. At this point, Rees, who had not been involved in subduing Morales, reached over and discharged his pepper spray in Morales's eyes for approximately one quarter of a second. The surrounding officers, including Rees, then physically subdued Morales.

         Morales was arrested and charged with assault for the blow that Officer Fry perceived. Fry's initial police report stated that Morales yelled "Okay, bitch!" before punching her in the chest with a closed fist. When video of the incident surfaced online, the charges against Morales were dismissed. At trial, Fry conceded that she never heard Morales say "Okay, bitch!", that no one can be heard uttering those words on the video, and that she never saw Morales punch her in the chest.

         Morales brought suit against the City of Seattle and several of the officers involved, making unlawful arrest and excessive force claims against Officer Fry and an excessive force claim against Officer Rees (collectively, the "Officers"). At summary judgment, the district court ruled that disputed factual issues, including whether Morales had said "Okay, bitch!" and whether she had punched Officer Fry, precluded granting Fry qualified immunity on the unlawful arrest and excessive force claims. The district court also ruled that disputed factual issues, including whether Officer Rees's use of pepper spray was accidental or intentional, precluded granting Rees qualified immunity on the excessive force claim.

         The case then proceeded to a five-day jury trial. At the close of Morales's case-in-chief, the district court denied the Officers' motion for judgment as a matter of law under Fed.R.Civ.P. 50(a). The district court gave the jury instructions on the unlawful arrest and excessive force claims. Morales objected to Jury Instruction Nos. 20 and 21, arguing that they impermissibly submitted the legal question of qualified immunity to the jury.

         The jury found for Morales on her excessive force claim against Rees, but not on her unlawful arrest and excessive force claims against Fry. The jury awarded $0 in damages to Morales. After trial, the parties stipulated to $1 in nominal damages as required under Floyd v. Laws, 929 F.2d 1390, 1402-03 (9th Cir. 1991) (mandating an award of nominal damages where a jury finds a constitutional violation). The district court then denied Rees's renewed motion for judgment as a matter of law under Fed.R.Civ.P. 50(b), and awarded Morales $165, 405 in attorney's fees as the prevailing party against Rees.

         The Officers cross-appeal the district court's denial of qualified immunity to Rees on his Rule 50(b) motion, as well as the district court's award of attorney's ...