Maria J. Morales, Plaintiff-Appellant,
Sonya Fry, Officer, Member of the Seattle Police Department; Michelle Gallegos, Officer, Member of the Seattle Police Department; City of Seattle; Brian Rees, Officer, Member of the Seattle Police Department, Defendants-Appellees. Maria J. Morales, Plaintiff-Appellee,
Sonya Fry, Officer, Member of the Seattle Police Department, Defendant, and Brian Rees, Officer, Member of the Seattle Police Department, Defendant-Appellant.
and Submitted May 10, 2017 Seattle, Washington
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
Parker (argued), Civil Rights Justice Center PLLC, Seattle,
Washington, for Plaintiff-Appellant/Cross-Appellee.
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
Before: M. Margaret McKeown, Carlos T. Bea, and N. Randy
Smith, Circuit Judges.
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,
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
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
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.
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).
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.
McKEOWN, CIRCUIT JUDGE
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.
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.
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. Rees then lost sight of 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.
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.
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.
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.
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.
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.
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.
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 ...