Carole Krechman, Individually, and as the Personal Representative of Robert Albert Appel, deceased, Plaintiff-Appellant,
County of Riverside, a Municipality; Robert Garcia, Deputy, ID# 4504; Martin Alfaro, Deputy, ID# 3485; Sean Dusek, Deputy, ID# 3495; Edward Chacon, Deputy, ID# 4505, Defendants-Appellees.
Argued and Submitted June 6, 2013—Pasadena, California
Appeal from the United States District Court for the Central District of California Otis D. Wright II, District Judge, Presiding D.C. No. 2:10-cv-08705-ODW-DTB
Dale K. Galipo (argued) and Thomas C. Seabaugh, Law Offices of Dale K. Galipo, Woodland Hills, California, for Plaintiff-Appellant.
Bruce E. Disenhouse (argued), Kinkle, Rodiger and Spriggs, Riverside, California, for Defendants-Appellees.
Before: Ronald M. Gould, N. Randy Smith, and Jacqueline H. Nguyen, Circuit Judges.
The panel reversed the district court's Fed.R.Civ.P. 50(a) judgment as a matter of law in favor of defendants following a jury trial in this action alleging that police officers used excessive deadly force when they attempted to take custody of plaintiff's adult son.
The panel held that the district judge improperly weighed the evidence in determining that defendants' conduct was not a substantial factor in the death. The panel stated that the record suggested that the judge's personal experience and not the testimony viewed in the light most favorable to plaintiff led the court to conclude that defendants did not use excessive force. Because the standard used by the district court was not correct, the panel reversed and remanded the case for a new trial.
The panel declined to reassign the case after determining that, in spite of Judge Wright's error of law, the panel had no reason to believe that he would be unable fairly and correctly to apply the Rule 50(a) standard on remand.
Concurring, Judge N.R. Smith stated that although he agreed that it was unnecessary to reach plaintiff's claim that the district court's conduct rose to a level that independently warranted a new trial, it certainly approached that line.
GOULD, Circuit Judge
Carole Krechman, individually and as the personal representative of her son, Robert Albert Appel, brought a 42 U.S.C. § 1983 action for damages resulting from her son's death. Krechman contends that police officers ("Defendants") used excessive force, resulting in Appel's death, when they responded to a 911 hang-up call and found Appel sitting unarmed in his driveway and tried to take custody of him. After a jury trial, the district court granted judgment as a matter of law to Defendants under Federal Rule of Civil Procedure 50(a). Krechman appeals, requesting reversal of that decision and a new trial, preferably before a different judge. In the alternative, she asserts (1) that the district court made erroneous trial rulings that cumulatively prejudiced her substantial rights and led to the entry of judgment as a matter of law against her and (2) that the district court violated her due-process rights by engaging in conduct that amounted to an unconstitutional appearance of bias. We have jurisdiction under 28 U.S.C. § 1291, and we reverse.
Just before 10:00 p.m. on a spring night, dispatchers received a 911 "hang up" call. The call was traced to a home in a Palm Desert gated community, and the dispatcher assigned Robert Garcia, an on-duty police officer, to inspect the location. When Garcia arrived at the front gate, a security guard told him that the home of interest was occupied by an attorney named Robert Appel and that just a few days prior, Appel was pepper sprayed by the police. Garcia entered the neighborhood and parked his patrol car down the street from the home. Stepping out of the car, Garcia heard yelling. He called for backup. Approaching the house, he noticed a man sitting in the driveway wearing nothing but sweat pants. The man stood up when he saw Garcia, ran at him, and eventually sat back down. Visually scanning the man's waistband for bulges that might be weapons, Garcia saw nothing of danger. The man screamed, "Why did you do this to me, Tina?" and other strange phrases, and then ran to hide behind a two-foot bush in the yard.
Garcia believed that the man was delusional and in need of a temporary hold for people with potential mental illness. So Garcia approached, readying his pepper spray. Using the name "Robert, " Garcia coaxed the man out from behind the bush and got him to sit down "Indian style" on the street facing the house.
Garcia then told Appel that he was not being arrested but that he was being detained so that the police could figure out what was going on. About this time, Officer Chacon arrived. Garcia then asked Appel to put his hands behind his back for handcuffing, and Appel replied "okay, okay, ...