Submitted May 16, 2013—San Francisco, California
Appeal from the United States District Court for the Eastern District of California Oliver W. Wanger, Senior District Judge, Presiding Argued and D.C. No. 1:09-cv-00285-AWI-SMS
Cornelius J. Callahan and Stephanie Y. Wu, Borton Petrini, LLP, Modesto, California, for Defendants-Appellants.
John F. Martin and Christine Hopkins, Law Offices of John F. Martin, Walnut Creek, California, for Plaintiff-Appellee.
Before: M. Margaret McKeown and Paul J. Watford, Circuit Judges, and Thomas S. Zilly, Senior District Judge. [*]
The panel vacated a jury verdict and the district court's judgment and remanded in an action arising out of the handcuffing and removal from school of then eleven-year-old C.B. by Sonora police officers.
The jury rendered a verdict ostensibly in favor of defendants, but the district court concluded that the verdict was incomplete and inconsistent and, after extensive extemporaneous colloquies with the jurors, directed them to re-deliberate. The jury eventually returned a verdict in favor of C.B. The panel held that the verdict form and protracted unscripted discussions between the district judge and the jurors were so confusing and potentially misleading as to require a new trial. The panel further held that police officers were entitled to qualified immunity as to C.B.'s claims under 42 U.S.C. § 1983 because the law was, and still is, not clearly established that handcuffing and driving a juvenile from school to a relative's place of business implicates Fourth Amendment rights.
Concurring in part and dissenting in part, Judge McKeown stated that she concurred in the majority's decision to remand this case for a new trial. She also concurred in the remand of the state law claims. She dissented from that part of the opinion which held that police officers were entitled to qualified immunity on C.B.'s Fourth Amendment claims because the facts demonstrated that C.B.'s prolonged detention was an obvious violation of the Fourth Amendment's general proscription against unreasonable seizures.
ZILLY, Senior District Judge.
This case involves a verdict form and protracted unscripted discussions between the district judge and the jurors that were so confusing and potentially misleading as to require a new trial. This case arises out of the handcuffing and removal from school of then eleven-year-old C.B. by Sonora Police officers. Trial proceeded against City of Sonora, Sonora Chief of Police Mace McIntosh, and Sonora Police Officer Harold (Hal) Prock on four claims: false imprisonment and intentional infliction of emotional distress ("IIED") under state law, and unlawful seizure and excessive force under 42 U.S.C. § 1983. The jury rendered a verdict ostensibly in favor of defendants, but the district court concluded that the verdict was incomplete and inconsistent and, after extensive extemporaneous colloquies with the jurors, directed them to re-deliberate. The jury eventually returned a verdict in favor of C.B. Defendants unsuccessfully moved for judgment as a matter of law, a new trial, or remittitur, and now appeal. We hold that defendants are entitled to a new trial, and that individual defendants McIntosh and Prock are entitled to qualified immunity on the two federal claims.
A. C.B.'s Handcuffing and Removal from School
At the time of the events at issue in this case, C.B. was taking medication for attention-deficit and hyperactivity disorder; the medication helped C.B. focus and not get too easily distracted. On Monday, September 29, 2008, C.B. forgot to take his medication before going to school, and he proceeded to have a difficult day. Sometime during the first three periods, after one of the breaks, a broadcast on the handheld transceivers ("walkie talkies") used by school personnel indicated that C.B. had not returned to class. Karen Sinclair, a physical education ("P.E.") instructor and the disciplinarian for Sonora Elementary School, who is generally called "Coach, " assisted in getting C.B. back to class before going to teach her own class. Later that morning, around 11:20 a.m., Kerri McCluskey, the school counselor, brought C.B. to Coach Sinclair's office, and indicated that C.B. needed to be there for a while. After having a brief conversation with Coach Sinclair about his "rough day, " C.B. went behind a barrier in the room to have some quiet time. About twenty minutes later, C.B. told Coach Sinclair that he was ready to return to class, and she said, "okay."
Coach Sinclair's office was designated in C.B.'s plan under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, as a place where C.B. could go when he was non-responsive or needed to "cool down"; it was considered a "safe zone" for C.B. Coach Sinclair's professional relationship with C.B. dated back to when C.B. was in kindergarten, and she was familiar with C.B.'s habit of becoming unresponsive and then taking off. In fact, when C.B. was in the fourth grade, he had run away from P.E. class and ended up in the school parking lot. On that occasion, school personnel had learned that C.B. was missing, but had not yet located him when Coach Sinclair received a call indicating that C.B. was in the parking lot. C.B. had been found by John Large, who later advised Coach Sinclair that C.B. said he was "tired of feeling the way he felt and he wanted to go out into traffic and kill himself." Coach Sinclair asked C.B. about this statement, and C.B. explained "sometimes I feel like running into traffic." At trial, C.B. admitted that he had previously told Coach Sinclair he wanted to run into traffic.
Coach Sinclair had this prior incident in mind as the events of September 29, 2008, unfolded. Around noon, Coach Sinclair received word that C.B. was being unresponsive on the playground. Coach Sinclair went outside and attempted to speak with C.B. She began by commenting, "you're having a rough day today, " and she indicated she was aware that he had not taken his medication. Coach Sinclair then invited C.B. to come to her office. C.B. did not respond. At trial, C.B. indicated that he had made a conscious decision not to speak.
During this interaction, Coach Sinclair was concerned about C.B. running across the playground and out an unlocked gate, which opens to Greenley Road, an arterial on which traffic often exceeds the 35 mile-per-hour limit. For some time, Coach Sinclair attempted to persuade C.B. to return with her to her office. She then told C.B. that she would have to call the police if he would not come inside with her. According to Coach Sinclair, C.B. looked up for the first time during the incident and said, "Call the police." In contrast, C.B. testified he did not say anything in response to Coach Sinclair's statement that he could either "go to her office or she was going to call the cops." C.B. indicated at trial that he thought Coach Sinclair was "just saying that to get me to go inside" and that he "didn't believe her."
Coach Sinclair used a walkie talkie to request that someone in the front office call the police to assist with an out-of-control youth. C.B. remained seated on the bench, looking at the ground, while the police were in transit. Chief McIntosh arrived before Officer Prock; Officer John Bowly also responded to the scene, but was not named as a defendant in this case. Coach Sinclair advised them both orally and via hand signals that C.B. was "a runner" and had not taken his medication.
After being informed that C.B. was "a runner, " Officer Prock likewise had concern about C.B.'s welfare if he were to run. He observed that the school grounds could be easily exited. He described nearby Greenley Road as "a busy roadway" on which "everybody usually travels on an average or close to 40, 45 miles an hour." Moreover, Officer Prock testified that, if C.B. had attempted to run away, he and his colleagues would have needed to apprehend and restrain him, which itself might have resulted in injuries to C.B.
Officer Prock attempted to engage C.B. in conversation for approximately four to five minutes, trying even to joke with him. C.B. remained unresponsive. Based on his training, Officer Prock viewed this behavior as "passively resisting" authority, perhaps while thinking about the next move. The efforts to coax C.B. into communicating having proven futile, Chief McIntosh gave a hand signal to Officer Prock indicating that handcuffs should be used. A gesture was made (touching wrists together), rather than an audible verbal cue given, so as not to trigger C.B. to run. Chief McIntosh viewed handcuffs as a means of preserving C.B.'s safety, allowing the officers to control C.B. without using physical force if he decided to run.
Officer Prock asked C.B. to stand up and put his hands behind his back, and C.B. complied. Officer Prock then applied the handcuffs. Coach Sinclair observed Officer Prock put his pinky finger between the handcuffs and C.B.'s wrists to make sure the handcuffs were not too tight. Coach Sinclair subsequently laughed with Ms. McCluskey about how loose the handcuffs were. Although C.B. testified at trial that the handcuffs hurt and caused red marks around his wrists, he acknowledged that he did not contemporaneously tell Officer Prock or his colleagues that the handcuffs were too tight or otherwise complain about them, and he indicated that the officers were "not mean" to him.
After placing C.B. in handcuffs, Officer Prock went to retrieve his vehicle, leaving C.B. with Chief McIntosh and others, who walked with C.B. to the upper parking lot. While Officer Prock was pulling his vehicle to C.B.'s location in the upper parking lot, Officer Bowly left the scene. During this time, Officer Prock received contact information for C.B.'s guardians, and he called C.B.'s uncle. Officer Prock testified that he asked the uncle to come and pick up C.B., but the uncle indicated he could not close his business to do so and requested that Officer Prock bring C.B. to the business. At trial, Officer Prock explained that, only after he had completed the call with C.B.'s uncle, did he take steps to place C.B. in his patrol vehicle.
Chief McIntosh testified that handcuffs remained on C.B. while he was in Officer Prock's vehicle because "it is not a safe environment inside the patrol car with somebody that is not restrained." Officer Prock transported C.B. to his uncle's business and released him. By that time, C.B. had begun communicating with Officer Prock, and Officer Prock was no longer concerned about C.B. running away. The entire interaction, from ...