Opinion
CV-01-1014-ST.
August 9, 2004
OPINION AND ORDER
In its Opinion and Order dated May 7, 2004 (docket #224), this court granted in part and denied in part plaintiffs' post-trial motions (docket #196). In sum, this court held that:
(1) With respect to the initial use of force (the first four to five "less lethal" shots and the first three cans of pepper spray used prior to Lowery charging defendant Dalberg), plaintiffs are entitled to a judgment as a matter of law against all defendants (except defendant Livingston). As a result, plaintiffs are entitled to recover damages, if any, for Lowery's pain and suffering resulting from this initial use of force (or, at a minimum, nominal damages of $1.00), reasonable attorney fees, and a new trial on plaintiffs' claim against the City of Portland for a failure to adequately train;
(2) In the alternative, plaintiffs are entitled to a new trial on this initial use of force because the jury's verdict was against the weight of the evidence; and
(3) With respect to on all other force used on Lowery after he charged defendant Dalberg (including the remaining "less lethal" shots, subsequent use of pepper spray, use of ASP batons, and use of the maximum restraint while defendant Nicholson stood on Lowery), plaintiffs are not entitled to judgment as a matter of law, but are entitled to a new trial on both the excessive force and the failure to train claims because this court failed to properly instruct the jury that:
(a) it could find that the use of force was excessive at any point during Lowery's encounter with defendants, and not at other points;
(b) a strong governmental interest is required to justify the use of "less lethal" shots, pepper spray, and standing on a person who is in the maximum restraint position; and
(c) if the initial use of "less lethal" shots and pepper spray provoked Lowery, then the subsequent force used by defendants to restrain Lowery also could be unreasonable — even if otherwise reasonable.
In a typical case, a post-judgment order granting judgment as a matter of law, and, alternatively, a new trial, results in a final judgment in favor of the moving party. The propriety of the judgment as a matter of law and alternative order of a new trial can then be tested on appeal.
In contrast, the post-judgment order in this case does not result in a final, appealable judgment. Even though the court granted, in part, a judgment as a matter of law on part of plaintiffs' excessive force claim, that order does not finally dispose of any discrete claim against any of the defendants. Consequently, it is not final or appealable under FRCP 54(b). Therefore, pursuant to FRAP 5(a)(3), defendants have filed a Motion to Amend Order Granting Post-Trial Motions to Certify It For Immediate Appeal Under 28 U.S.C. § 1292 (docket #225). For the reasons set forth below, that motion is granted.
FRCP 54(b) provides:
(b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
FRAP 5(a)(3) provides:
If a party cannot petition for appeal unless the district court first enters an order granting permission to do so or stating that the necessary conditions are met, the district court may amend its order, either on its own or in response to a party's motion, to include the required permission or statement. In that event, the time to petition runs from entry of the amended order.
DISCUSSION
I. Legal Standard
Pursuant to 28 U.S.C. § 1291, the federal courts of appeals postpone appellate review until after a final judgment has been entered by a district court. The Interlocutory Appeals Act, 28 U.S.C. § 1292(b) ("§ 1292(b)"), provides a limited exception to this final judgment rule. It authorizes district courts to certify an order for interlocutory appeal only if: (1) the "order involves a controlling question of law;" (2) there is "substantial ground for difference of opinion;" and (3) "an immediate appeal from the order may materially advance the ultimate termination of the litigation." Id; In re Cement Antitrust Litig., 673 F.2d 1020, 1026 (9th Cir 1982), aff'd sub nom Arizona v. Ash Grove Cement Co., 459 U.S. 1190 (1983). Satisfying these three statutory criteria is not always sufficient, as district court judges have "unfettered discretion" to deny certification even when all three are satisfied. Ryan, Beck Co., LLC v. Fakih, 275 F. Supp.2d 393, 396 (EDNY 2003); see also Executive Software N. Am., Inc. v. United States District Court for the Central District of California, 24 F.3d 1545, 1550 (9th Cir 1994) (stating that a district court's certification decision is "unreviewable").
28 U.S.C. § 1292(b) provides in full:
When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.
Additionally, the Ninth Circuit has cautioned that § 1292(b) "is to be applied sparingly and only in exceptional circumstances." United States v. Woodbury, 263 F.2d 784, 799 n 11 (9th Cir 1959). The legislative history makes clear that § 1292(b) is reserved for "extraordinary cases where decision of an interlocutory appeal might avoid protracted and expensive litigation," such as "antitrust and similar protracted cases." United States Rubber Co. v. Wright, 359 F.2d 784, 785 (9th Cir 1966), quoting S Rep No 2434 (1958), reprinted in 1958 USCCAN 5255, 5260. As the Ninth Circuit has explained, the statute "was not intended merely to provide review of difficult rulings in hard cases." Id. II. Controlling Questions of Law A. Legal Standard
A "question of law" is "controlling" under § 1292(b) if resolving it on appeal could materially affect the outcome of litigation in the district court. In re Cement Antitrust Litig., 673 F.2d at 1026. A "question of law" means a "pure question of law," not a mixed question of law and fact or an application of law to a particular set of facts. See Ahrenholz v. Board of Trustees of the Univ. of Illinois, 219 F.3d 674, 675-77 (7th Cir 2000). Writing for the Seventh Circuit, Chief Judge Posner explained that in the context of § 1292(b), the term "`question of law' means an abstract legal issue rather than an issue of whether summary judgment should be granted." Id at 677 (emphasis added).
We think [Congress] used `question of law' in much the same way a lay person might, as referring to a `pure' question of law rather than merely to an issue that might be free from a factual contest. The idea was that if a case turned on a pure question of law, something the court of appeals could decide quickly and cleanly without having to study the record, the court should be enabled to do so without having to wait till the end of the case.Id at 676-77.
In keeping with the congressional directive that § 1292(b) be applied narrowly and only in exceptional circumstances, numerous other federal courts also have interpreted the phrase "question of law" to mean a pure legal issue. See Oliner v. Kontrabecki, 305 B.R. 510, 529 (ND Cal 2004) ("Because the alleged `controlling questions of law' raised by Kontrabecki are inextricably intertwined with the bankruptcy court's factual findings, an interlocutory appeal is not appropriate"); Keystone Tobacco Co., Inc. v. United States Tobacco Co., 217 F.R.D. 235, 239 (DDC 2003) ("Where the crux of an issue decided by the court is fact-dependent, the court has not decided a `controlling question of law' justifying immediate appeal"); In re Bridgestone/Firestone, Inc. Tires Prods. Liab. Litig., 212 F. Supp.2d 903, 907 (SD Ind 2002), quoting Ahrenholz, 219 F.3d at 676-77 ("A question of law in this situation is one that presents `an abstract legal issue' that can be `decide[d] quickly and cleanly without having to study the record'"); Hulmes v. Honda Motor Co., Ltd., 936 F. Supp. 195, 210 (DNJ 1996), aff'd 141 F.3d 1154, cert denied, 525 U.S. 814 (1998) ("Section 1292(b) was not designed to secure appellate review of `factual matters' or of the application of the acknowledged law to the facts of a particular case[.]"); In re St. Johnsbury Trucking Co., 186 B.R. 53, 55 (D Vt 1995) (finding no "controlling question of law" because the issue — whether a fraud was committed upon the court — required resolution of facts); North Carolina ex rel. Long v. Alexander Alexander Servs., Inc., 685 F. Supp. 114, 115-16 (EDNC 1988) ("Decisions that are `fact specific' may not be appealed under § 1292(b)"); Securities Exch. Comm'n v. First Jersey Sec., Inc., 587 F. Supp. 535 (SDNY 1984) ("The Court's decision . . . was predicated at least in part on specific factual findings. . . . Therefore, an appeal would necessarily present a mixed question of law and fact, not a controlling issue of pure law. Such an order is not appropriate for certification pursuant to 28 U.S.C. § 1292(b)").
In Steering Comm. v. United States, 6 F.3d 572 (9th Cir 1993), the Ninth Circuit acknowledged an exception to the generally accepted rule that interlocutory appeals should only be permitted for pure questions of law. That case involved multidistrict, multiparty litigation following a plane crash that killed over 80 people. The proposed appeal involved one "pure legal question" and one mixed question of law and fact. Id at 575. The Ninth Circuit accepted both questions for interlocutory review because: (1) the exceptional nature of the litigation served the purpose of § 1292(b), and (2) "the presence of a pure legal question permit[ted] the court to resolve all questions material to the order." Id at 575-76.
B. Questions Raised by Defendant
Defendants contend that the following four questions satisfy the standards for an interlocutory appeal under § 1292(b):
1. Were the officer defendants' descriptions of their observations of Mr. Lowery's moving "his hands toward his waistband where individuals often keep weapons," and Officer Ladd's descriptions of Mr. Lowery's "`getting up' in a `hostile fight stance' while `fixated on our position,'" Opinion and Order at 16, merely "conclusory statements of an officer's concern for his safety," id., or, conversely, whether that testimony constituted evidence of "what [the officers] believed or feared — reasonable or not — [and] that the determination [of reasonableness] must be made by a trier of fact." Deorle v. Richardson, 272 F.3d 1272, 1281 (9th Cir 2001), cert denied, 536 U.S. 958 (2002)?
2. Do the police have a strong government interest in subduing and obtaining medical attention for a profusely bleeding, non-cooperative subject in the throes of a drug-induced psychosis?
3. Could the jury reasonably have concluded that the use of the first three cans of pepper spray was a reasonable response to the failure of the less lethal shotgun rounds to accomplish Mr. Lowery's compliance?
4. Notwithstanding Murphy v. City of Long Beach, 914 F.2d 183, 186-88 (9th Cir 1990), under the "plain error" calculus of Settlegoode v. Portland Public Schools, 362 F.3d 1118, 1129, amended and superceded on denial of rehearing, 371 F.3d 503 (9th Cir 2004), was it, as a matter of law, an abuse of discretion for the Court to grant a new trial on the basis of the failure to give jury instructions which the plaintiffs did not ask for, and did not object to the failure to give, on a theory or theories of relief that plaintiffs did not assert at trial?
Defendant's Memorandum, p. 4.
C. Application
Plaintiffs agree that each of the questions raised by the defendants is controlling in that each could materially affect the outcome of the case. On the other hand, the parties dispute whether they present pure legal questions.
Whether the defendants' questions are pure legal questions depends on how they relate to the test for evaluating the reasonableness of the use of force under the Fourth Amendment. The first step in the test is to assess the quantum of force used by considering the type and amount of force inflicted. Deorle v. Rutherford, 272 F.3d 1272, 1279 (9th Cir 2001), cert denied 536 U.S. 958 (2002) (citations omitted). By determining the quantum of force involved, the court can determine how much of a governmental interest is required to justify the employment of such force. See id at 1280. Step two measures the governmental interests at stake by evaluating the " Graham factors," which were set out in Graham v. Connor, 490 U.S. 386, 396-97 (1989), such as the severity of the crime at issue and whether the suspect posed an immediate threat to the safety of the officers or others. Id. Finally, in step three, the conflicting interests are weighed to determine whether the degree of force used was warranted by the governmental interests at stake. Deorle, 272 F.3d at 1282, citing Graham, 490 US at 396 (1989).
The first and third questions concern the reasonableness of the officers' belief about the danger presented by Mr. Lowery and the reasonableness of the officers' use of the first three cans of pepper spray in response to the failure of the less lethal shotgun rounds. These questions are related to the second and third steps of the Fourth Amendment excessive force test, which involve a determination of the government's interests at stake in the particular encounter at issue and a comparison of those interests to the degree of force actually used. To answer these questions, the appellate court necessarily will have to conduct a detailed study of the trial record. Therefore, they are not pure questions of law appropriate for certification under § 1292(b).
Defendants' second question asks whether the police have a strong governmental interest, within the framework for analyzing a police officer's use of force, in subduing and obtaining medical attention for injured persons suffering from a drug-induced psychosis. This question involves the second step of the Fourth Amendment excessive force test. The government's interest in this step is not determined in an abstract legal sense. Instead, the government's interest is ascertained based on the events surrounding the actual use of force giving rise to the lawsuit. An appellate court cannot determine these interests without a factual analysis. For example, a glaring omission from the defendant's second question is the degree of danger presented to the officers and the public by Mr. Lowery. Only by reviewing all of the facts of Lowery's encounter with the defendants can the strength of the governmental interest be ascertained. Thus, the second question is not a pure question of law.
The fourth question asks whether the power of a district court to find sua sponte that a failure to give jury instructions was a miscarriage of justice requiring a new trial, as articulated in Murphy v. City of Long Beach, 914 F.2d 183, 186-88 (9th Cir 1990), was somehow affected by the recent decision in Settlegoode v. Portland Public Schools, 362 F.3d 1118, 1129, amended and superceded on denial of rehearing, 371 F.3d 503 (9th Cir 2004). Considering that the two cases address quite different circumstances in which a motion for a new trial was granted, this court does not view Settlegood as overruling Murphy. Moreover, a district court's power to order a new trial under Murphy is only raised to avoid a miscarriage of justice. Appellate review of such a finding likely mixes facts with the law in a manner that makes § 1292(b) certification inappropriate.
However, underlying the fourth question is the issue as to whether the court erred in its jury instructions. If the court did not err, then the failure to give the jury instructions was not a miscarriage of justice requiring a new trial. Each of the three jury instruction issues do raise pure questions of law.
First, the appellate court can determine that jurors in an excessive force case involving multiple uses of force at different times in an encounter must be instructed that force used at one point may be excessive, but not at other points. This question is particularly important in this case where force applied to Lowery at one point in the encounter may have been reasonable, but force applied at other times may have been unreasonable. The appellate court can determine this abstract legal issue, which only involves the first step of the Fourth Amendment excessive force test, without consulting the facts in this case.
Similarly, without consulting the facts in this case, the appellate court can abstractly decide that a jury should be instructed that a strong governmental interest is required to justify the use of "less lethal" shots, pepper spray, and standing on a person who is in the maximum restraint position. There is no dispute over whether this force was used on Lowery. Therefore, an appellate court can make a straightforward determination of the level of government interest needed to justify this force.
Finally, the appellate court can determine whether a jury should be instructed that if the force used on an individual was excessive and provoked a response, then the subsequent force used by officers could be unreasonable. In effect, this question merely asks the Ninth Circuit to find that in cases where it is applicable, the legal principle set out in Billington v. Smith, 292 F.3d 1177, 1189-1191 (9th Cir 2002) and Alexander v. City and County of San Francisco, 29 F.3d 1355, 1366-67 (9th Cir 1994), cert denied, 513 U.S. 1083 (1995), should be presented to the jury in the form of instructions.
By presenting one controlling question of law, defendants have satisfied the first prong of the test needed to certify questions for appeal under § 1292(b). III. Substantial Ground for Difference of Opinion A. Legal Standard
As a result, the appellate court is free to address the other questions raised by defendants which are not certified by this court. See Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 205 (1996) ("[A]ppellate jurisdiction applies to the [§ 1292(b)] order certified to the court of appeals, and is not tied to the particular question formulated by the district court . . . [T]he appellate court may address any issue fairly included within the certified order because "it is the order that is appealable, and not the controlling question identified by the district court" (citations omitted)).
To demonstrate "a substantial ground for difference of opinion" on a question for § 1292(b) certification, a party must show more than its own disagreement with a court's ruling. See, e.g., First Am. Corp. v. Al-Nahyan, 948 F. Supp. 1107, 1116 (DDC 1996) ("Mere disagreement, even if vehement, with a court's ruling on a motion to dismiss does not establish a `substantial ground for difference of opinion' sufficient to satisfy the statutory requirements for an interlocutory appeal"). However, "in determining whether a substantial ground for difference of opinion truly exists, a district court must analyze the strength of the arguments in opposition to the challenged ruling." Ryan, Beck Co., LLC, 275 F. Supp.2d at 398 (internal quotation omitted). Indeed, an issue can be a controlling question of law for which there is a substantial ground for difference of opinion when it is "difficult and of first impression." Klinghoffer v. S.N.C. Achille Lauro Ed Altri-Gestione Motonave Achille Lauro in Amministrazione Straordinaria, 921 F.2d 21, 25 (2nd Cir 1990); but see In re Flor, 79 F.3d 281, 284 (2nd Cir 1996) ("[T]he mere presence of a disputed issue that is a question of first impression, standing alone, is insufficient to demonstrate a substantial ground for difference of opinion. Rather, [i]t is the duty of the district judge . . . to analyze the strength of the arguments in opposition to the challenged ruling when deciding whether the issue for appeal is truly one on which there is a substantial ground for dispute" (internal citations and quotations omitted)). At least one district court provided a § 1296(b) certification in an excessive force case where the Fourth Amendment issue was a matter of first impression in the circuit. Parker v. Clarke, 910 F. Supp. 460, 462 (ED Mo 1995).
B. Application
The issues raised by defendants' fourth question do involve substantial grounds for differences of opinion. No court has directly ruled that a jury should be instructed that force used at one point in an encounter can be unreasonable, while force used in other periods is reasonable. Additionally, while the Ninth Circuit has ruled that police must have a strong governmental interest to use "less lethal" shots, Deorle, 272 F.3d at 1284-85, citing Chew v. Gates, 27 F.3d 1432, 1442-43 (9th Cir 1994), cert denied, 513 U.S. 1148 (1995), and to place weight on a person in the maximum restraint, Drummond v. City of Anaheim, 343 F.3d 1052, 1056-57 (9th Cir 2003), cert denied, 124 S Ct 2871, 2004 WL 473661 (2004), no court has ruled on whether a jury should be so instructed. Finally, no court has directly ruled on whether a jury should be instructed that police must have a strong governmental interest in the use of pepper spray, or that once a person is unconstitutionally provoked, force that would otherwise be reasonable can become unreasonable.
These are not easy issues to resolve. This court only came its decision after an extensive review of the case law, which uncovered supporting, but not binding, precedents. As set forth in their briefs, defendants have strong arguments in opposition. Furthermore, in addition to lacking binding precedent, the jury instructions might not be necessary in order to prevent a miscarriage of justice under any circumstance.
Accordingly, defendants have satisfied the second prong of the test needed to certify a question for appeal under § 1292(b).
IV. Immediate Appeal from the Order May Materially Advance the Ultimate Termination of the Litigation
Plaintiffs also argue that an interlocutory appeal would not materially advance the ultimate termination of this litigation. They contend that all that is necessary to terminate this case is to conduct a new trial, and then, if necessary, appeal the outcome of that second trial. Plaintiffs also note that one district court in the Ninth Circuit has rejected the risk of a second trial as a reason for granting certification. See Vaughn v. Regents of Univ. of California, 504 F. Supp. 1349, 1355 (ED Cal 1981). Defendants counter that a third trial might be necessary if § 1292(b) certification is not granted.
Several different scenarios are possible. If an interlocutory appeal is certified and the Ninth Circuit affirms the Opinion and Order in its entirety, then only one more trial will be necessary. That second trial will decide the damages suffered by Lowery as a result of the less lethal shots and pepper spray used on him before he charged defendant Dalberg (as well as the City of Portland's failure to adequately train its officers on this initial use of this force). It will also decide whether the other force used on Lowery was excessive (along with what amount of damages plaintiffs should be awarded if that subsequent force was excessive and whether the City of Portland failed to adequately train its officers here as well).
If the Ninth Circuit reverses the Opinion and Order on an interlocutory appeal and affirms the jury verdict, then a second trial will be unnecessary. Alternatively, the Ninth Circuit could rule that this court erred by entering judgment as a matter of law on the initial force used on Lowery, but properly granted a new trial on the force used after Lowery charged defendant Dalberg. Although this ruling also will necessitate a second trial, an appeal from that second trial would be highly unlikely.
On the other hand, if an interlocutory appeal is not certified, then not only will a second trial be necessary, but a third trial is also a very real possibility. If plaintiffs win the second trial, defendants will almost certainly appeal. The Ninth Circuit could then rule that this court erred by entering judgment as a matter of law on the initial force used on Lowery, but properly granted a new trial on the force used after Lowery charged defendant Dalberg. As a result, a third trial would have to be held to permit the jury to consider liability issues on all the force used on Lowery. This hypothetical outcome is not speculative considering the deferential standard of review given to a district court's decision to grant a new trial, as opposed to the low level of deference given a judgment as a matter of law.
Even if plaintiffs lose the second trial, defendants will still likely appeal the grant of a judgment as a matter of law on the initial force used against Lowery. The appellate court might decide that the judgment as a matter of law on this initial force was granted in error, but that granting a new trial on this initial force was not an abuse of discretion. In that event, a third trial will still be necessary on the initial force used on Lowery. Once again, this outcome is not speculative considering the level of deference given a district court's grant of a new trial versus judgment as a matter of law.
While certification under § 1292(b) should only be granted sparingly, an appeal of this court's Opinion and Order seems almost certain under any scenario. There is a considerable probability that a third trial will be necessary without an interlocutory appeal, given the impact of granting partial judgment as a matter of law. This risk of a third trial makes this case considerably different than the circumstances in Vaughn, where the risk was only of a second trial. See 504 F. Supp at 1355.
Additionally, the text of § 1292(b) does not indicate that certification is limited to cases affecting large companies or numerous persons, and this court is not convinced that the Ninth Circuit meant as much when warning against granting a certification without exceptional circumstances. While this might not be an antitrust or mass torts case, the certainty of an appeal and the likelihood of a third trial create exceptional circumstances. Accordingly, certification of this case for appeal under § 1292(b) will materially advance the ultimate termination of this litigation by avoiding the risk of a third trial and satisfying defendants' inevitable appeal as quickly as possible.
ORDER
For the reasons discussed above, Defendants' Motion to Amend Order Granting Post-Trial Motions to Certify It For Immediate Appeal Under 28 U.S.C. § 1292 (docket #225) is GRANTED. This case is stayed pending an opinion on appeal. Furthermore, this court's Opinion and Order dated May 7, 2004 (docket #224) is amended to certify an immediate interlocutory appeal under 28 U.S.C. § 1292(b) of the following question:
Notwithstanding Murphy v. City of Long Beach, 914 F.2d 183, 186-88 (9th Cir 1990), under the "plain error" calculus of Settlegoode v. Portland Public Schools, 362 F.3d 1118, 1129, amended and superceded on denial of rehearing, 371 F.3d 503 (9th Cir 2004), was it, as a matter of law, an abuse of discretion for the Court to grant a new trial on the basis of the failure to give jury instructions which the plaintiffs did not ask for, and did not object to the failure to give, on a theory or theories of relief that plaintiffs did not assert at trial?