Robert Reese, Jr. v. County of Sacramento

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT I. REESE, JR., No. 16-16195

Plaintiff-Appellant,

D.C. No.

v. 2:13-cv-00559-

GEB-KJN

COUNTY OF SACRAMENTO; DUNCAN

BROWN, Sacramento County

Sheriff’s Department Deputy (Badge

#1220); ZACHARY ROSE,

Sacramento County Sheriff’s

Department Deputy (Badge #832),

Defendants-Appellees.

ROBERT I. REESE, JR., No. 16-16230

Plaintiff-Appellee,

D.C. No.

v. 2:13-cv-00559-

GEB-KJN

COUNTY OF SACRAMENTO;

ZACHARY ROSE, Sacramento County

Sheriff’s Department Deputy (Badge OPINION

#832),

Defendants-Appellants,

and

2 REESE V. COUNTY OF SACRAMENTO

DUNCAN BROWN, Sacramento

County Sheriff’s Department Deputy

(Badge #1220),

Defendant.

Appeal from the United States District Court

for the Eastern District of California

Garland E. Burrell, Jr., Senior District Judge, Presiding

Argued and Submitted December 8, 2017

San Francisco, California

Filed April 23, 2018

Before: Milan D. Smith, Jr. and Sandra S. Ikuta, Circuit

Judges, and Diane J. Humetewa,* District Judge.

Opinion by Judge Humetewa

*

The Honorable Diane J. Humetewa, United States District Judge for

the District of Arizona, sitting by designation.

REESE V. COUNTY OF SACRAMENTO 3

SUMMARY**

Civil Rights

The panel (1) affirmed the district court’s decision

granting defendants’ post-verdict motion for judgment as

a matter of law on the issue of qualified immunity in a

42 U.S.C. § 1983 action alleging excessive deadly force;

(2) reversed the district court’s post-verdict decision

granting summary judgment sua sponte for the defendants

on plaintiff’s California Bane Act claim, and (3) affirmed the

denial of defendants’ requests for post-trial relief.

A sheriff’s deputy shot plaintiff in his apartment during

a response to an anonymous 911 call after plaintiff opened his

front door holding a large knife. The panel noted the jury’s

verdict that the deputy violated plaintiff’s right to be free

from excessive force was sufficient to deny him qualified

immunity under the first prong of the qualified immunity

analysis, which considers whether there has been a violation

of a constitutional right. Nevertheless, addressing the second

prong of the analysis, the panel determined that plaintiff

failed to identify any sufficiently analogous cases showing

that under similar circumstances a clearly established Fourth

Amendment right against the use of deadly force existed at

the time of the shooting. The panel concluded that none of

plaintiff’s cases squarely governed the situation that the

deputy confronted such that he would have had clear warning

that his use of deadly force was objectively unreasonable.

The panel therefore affirmed the district court’s ruling that

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

4 REESE V. COUNTY OF SACRAMENTO

the deputy was entitled to qualified immunity on the Fourth

Amendment excessive force claim.

In reversing the district court’s post-trial grant of

summary judgment in favor of defendants on the California

Bane Act claim for excessive force, the panel held that the

district court erroneously concluded that the Bane Act

requires a separate showing of coercion beyond that inherent

in the use of force. The panel further determined that the

Bane Act requires a specific intent to violate the arrestee’s

right. The panel concluded that although there was no

evidence of coercion independent from the deputy’s use of

objectively unreasonable force, it could not conclude that no

reasonable jury could find that the deputy had a specific

intent to violate plaintiff’s Fourth Amendment rights.

Accordingly, the panel remanded the Bane Act claim for a

new trial.

Addressing defendants’ cross-appeal, the panel held that

plaintiff’s claims were not barred by Heck v. Humphrey,

512 U.S. 477 (1994) because defendants identified nothing in

the record showing the specific factual basis for plaintiff’s

“no contest” plea to violating California Penal Code

§ 417(a)(1). Without such information, the district court

could not determine that plaintiff’s claim of excessive force

in this case would call into question the validity of his

misdemeanor weapon conviction. The panel further held

that: (1) the jury’s award of $150,000.00 for future non-

economic loss was supported by substantial evidence; (2) any

error in the jury instruction on plaintiff’s Fourth Amendment

claim that authorized liability if it could be shown that

defendants shot at plaintiff was harmless; (3) the district court

did not abuse its discretion when it failed to exclude certain

expert testimony; and (4) there was no error in excluding the

REESE V. COUNTY OF SACRAMENTO 5

deposition testimony of a defense witness who did not appear

in court to testify.

COUNSEL

Dale K. Galipo (argued), Law Office of Dale K. Galipo,

Woodland Hills, California; Eric Grant, Hicks Thomas LLP,

Sacramento, California; Stewart Katz, Law Office of Stewart

Katz, Sacramento, California; for Plaintiff-Appellant.

John R. Whitefleet (argued) and Thomas L. Riordan, Porter

Scott, Sacramento, California, for Defendants-Appellees.

OPINION

HUMETEWA, District Judge:

Plaintiff/Appellant Robert Reese, Jr. (“Reese”) appeals

the district court’s decision granting Defendants’/Appellees’

(“the Defendants”) post-verdict motion for judgment as a

matter of law on the issue of qualified immunity. Reese

further appeals the district court’s post-verdict decision

granting “summary judgment sua sponte” for the Defendants

on the California Bane Act (“Bane Act”) claim. The

Defendants cross-appeal the district court’s denial of their

requests for post-trial relief. Defendants also argue that Heck

v. Humphrey, 512 U.S. 477 (1994) should have barred

Reese’s claims because his misdemeanor criminal conviction

for exhibiting a knife arose out of the same acts. We have

jurisdiction under 28 U.S.C. § 1291.

6 REESE V. COUNTY OF SACRAMENTO

Background

Robert Reese, Jr., filed this civil rights claim against the

County of Sacramento and two of its Deputy Sheriffs,

Duncan Brown and Zachary Rose, following a shooting

incident on March 25, 2011. In the hours leading up to the

incident, Reese had consumed large quantities of alcohol,

marijuana, and cocaine at a neighborhood party. The party

ended when Reese and his neighbor Nathan began arguing

over whether Reese had taken Nathan’s bottle of vodka.

Sometime after the party, Nathan’s girlfriend went to Reese’s

apartment to retrieve the vodka. Reese answered the door

holding a knife and refused to hand over the bottle. Around

4:30 a.m., Reese and Nathan exchanged several text

messages, some containing racial epithets. Shortly thereafter,

Reese heard knocking on his apartment door. He assumed it

was Nathan. It was not.

Deputies Brown and Rose and several other police

officers arrived at Reese’s apartment complex shortly before

5:00 a.m. They were responding to an anonymous 911 call

that an African-American male had exited apartment 144 and

fired an automatic gun. The caller also stated that the male

was possibly crazy, under the influence of drugs, had a knife,

and was back inside apartment 144.

Deputy Rose decided that someone should knock on the

door of apartment 144 to further investigate the 911 report.

The deputies decided that Deputy Brown, who had a rifle,

would stand back about 15 feet to cover the doorway while

Deputy Rose would knock on the apartment door. Deputy

Rose, concealing himself, stood to the side of the door and

other deputies lined up behind him. Deputy Rose, while

holding his handgun in one hand, knocked on the door with

REESE V. COUNTY OF SACRAMENTO 7

his flashlight. Deputy Brown testified that after Deputy Rose

knocked, “the door flew open. I saw a figure coming out,

arm up, extended, large knife[.]” Upon seeing the knife,

which he describes as being within a foot of Deputy Rose’s

neck, Deputy Brown fired his rifle at Reese. Deputy Rose,

seeing Reese with the knife in his hand, simultaneously

backed away from the door of the apartment. The next events

occurred in what Deputy Rose describes as a “millisecond.”

After the rifle shot, Deputy Rose advanced into the apartment

expecting to see Reese shot and incapacitated. Instead he saw

Reese standing upright in the apartment. He could not,

however, see Reese’s hands. Deputy Rose immediately fired

his handgun, aiming it at Reese’s chest. He was

approximately three feet away from Reese. Reese fell

backward toward a couch and Deputy Rose saw blood on

Reese’s clothing and the carpet. At trial, Deputy Rose

testified that he was uncertain whether it was his or Deputy

Brown’s shot that actually hit Reese but believed that it was

his. Reese survived the incident and thereafter asserted civil

rights claims against the County and Deputies Brown and

Rose.

After a seven-day jury trial, the jury returned a verdict in

favor of Reese on his Fourth Amendment excessive force

and Bane Act claims against Deputy Rose and the County.

The jury also returned a verdict in favor of Deputy Brown,

which Reese does not appeal. In separate interrogatories, the

jury determined that Deputy Rose’s pistol round, not Deputy

Brown’s rifle round, hit Reese. The jury also found that

Reese had a knife in his hand in an elevated position when he

opened the door. They answered “no” to the question of

whether Reese brandished the knife at Deputy Rose.

Question 14 asked the jury “[a]t the time Deputy Rose fired

his shot, did it appear that Plaintiff posed an immediate threat

8 REESE V. COUNTY OF SACRAMENTO

of death or serious physical injury to Deputy Rose?” The

jury answered “no.” The jury awarded Reese $534,340.00 in

compensatory damages including $150,000.00 for non-

economic loss.

After the jury returned its verdict, the Defendants moved

for a judgment as a matter of law asserting that Deputy Rose

was entitled to qualified immunity, or alternatively that Reese

failed to prove by a preponderance of the evidence all of the

elements required for a Fourth Amendment battery and Bane

Act violation. The Defendants asserted that the evidence at

trial insufficiently established that it was Deputy Rose’s shot

that hit Reese, and thus Reese had not met his burden of

showing Rose had caused Reese’s harm. Finally, the

Defendants asserted that Reese’s claims were barred by Heck

v. Humphrey because he pleaded no contest to a violation of

California Penal Code section 417(a)(1). Defendants also

moved for a new trial, arguing that the district court erred in

its instruction to the jury on Reese’s Bane Act claim.

The district court determined that Deputy Rose was

entitled to qualified immunity on Reese’s Fourth Amendment

claim. The district court then granted “summary judgment

sua sponte,” finding that Defendants were entitled to

judgment as a matter of law on Reese’s Bane Act claim,

concluding that Defendants’ proposed jury instruction on that

claim should have been given. The district court denied

Defendants’ other requests for post-trial relief, including their

Heck v. Humphrey claim. Reese appealed the district court’s

post-trial rulings in favor of Defendants. Defendants filed a

cross-appeal reasserting their Heck v. Humphrey claim and

asserting that the district court erred in several of its

evidentiary rulings and its award of future non-economic loss.

REESE V. COUNTY OF SACRAMENTO 9

Analysis

I. Defendants’ Post-Verdict Motion for Judgment as a

Matter of Law

The Court of Appeals “review[s] de novo the grant or

denial of a renewed motion for judgment as a matter of law.”

Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir. 2002). “A

renewed motion for judgment as a matter of law is properly

granted only ‘if the evidence, construed in the light most

favorable to the nonmoving party, permits only one

reasonable conclusion, and that conclusion is contrary to the

jury’s verdict.’” Castro v. County of Los Angeles, 833 F.3d

1060, 1066 (9th Cir. 2016) (quoting Pavao, 307 F.3d at 918).

Thus, although the Court does not defer to the district court’s

decision on the motion, it gives “significant deference to the

jury’s verdict and to the nonmoving parties . . . when deciding

whether that decision was correct.” A.D. v. Cal. Highway

Patrol, 712 F.3d 446, 453 (9th Cir. 2013).

A. Qualified Immunity

Reese first challenges the district court’s post-verdict

ruling that Deputy Rose is entitled to qualified immunity on

his Fourth Amendment excessive force claim.

“The doctrine of qualified immunity protects government

officials ‘from liability for civil damages insofar as their

conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009)

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

“Qualified immunity gives government officials breathing

room to make reasonable but mistaken judgments about open

10 REESE V. COUNTY OF SACRAMENTO

legal questions. When properly applied, it protects ‘all but the

plainly incompetent or those who knowingly violate the

law.’” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (quoting

Malley v. Briggs, 475 U.S. 335, 341 (1986)). “The purpose

of qualified immunity is to strike a balance between the

competing ‘need to hold public officials accountable when

they exercise power irresponsibly and the need to shield

officials from harassment, distraction, and liability when they

perform their duties reasonably.’” Mattos v. Agarano,

661 F.3d 433, 440 (9th Cir. 2011) (quoting Pearson, 555 U.S.

at 231). “In determining whether an officer is entitled to

qualified immunity, we consider (1) whether there has been

a violation of a constitutional right; and (2) whether that right

was clearly established at the time of the officer’s alleged

misconduct.” Lal v. California, 746 F.3d 1112, 1116 (9th

Cir. 2014) (citing Pearson, 555 U.S. at 232).

Here, the jury found Deputy Rose violated Reese’s right

to be free from excessive force under the Fourth Amendment.

“Therefore, the jury’s verdict against [Rose] is sufficient to

deny him qualified immunity on this prong of the analysis.”

See A.D., 712 F.3d at 456 (denying qualified immunity on a

post-verdict motion for judgment as a matter of law). Rose’s

entitlement to qualified immunity therefore turns on whether

Reese’s right was clearly established at the time of the

incident in 2011.

Joining other circuit courts from around the country, this

Court recently determined that the “clearly established” prong

of the qualified immunity analysis is a matter of law to be

decided by a judge. Morales v. Fry, 873 F.3d 817, 824–25

(9th Cir. 2017). In Morales, we recognized that “the question

of whether a particular constitutional right is ‘clearly

established’ is one that the Supreme Court has increasingly

REESE V. COUNTY OF SACRAMENTO 11

emphasized is within the province of the judge.” Id. at 822.

“[C]omparing a given case with existing statutory or

constitutional precedent is quintessentially a question of law

for the judge, not the jury.” Id. at 823. We recognized,

however, that “[a] bifurcation of duties is unavoidable: only

the jury can decide the disputed factual issues, while only the

judge can decide whether the right was clearly established

once the factual issues are resolved.” Id.

In arguing that his right to be free of excessive force

under these circumstances was clearly established, Reese

relies on the jury’s answer to Question 14, their finding that

it did not appear that Reese posed an immediate threat of

death or serious physical injury to Rose at the time Rose fired

his shot. Reese contends that by making this finding, the jury

determined Rose violated Reese’s clearly established right

not to be subjected to deadly force when he posed no

immediate threat to Rose or others. As Morales confirmed,

however, the question of whether the right was clearly

established is solely for the judge to decide, not the jury. See

id. at 825. Thus, although the jury’s finding that Reese posed

no immediate threat of death or serious physical injury to

Rose addresses the first prong of the qualified immunity

analysis, it does not answer the purely legal question of

whether the right was clearly established in this context.

Therefore, the district court was within its authority to

determine, as a matter of law, whether Deputy Rose was

entitled to qualified immunity, even where a jury determined

that he violated Reese’s Fourth Amendment right to be free

from excessive force.

Moreover, the district court appropriately analyzed the

facts here to the established standard that “[a] Government

official’s conduct violates clearly established law when, at the

12 REESE V. COUNTY OF SACRAMENTO

time of the challenged conduct, ‘[t]he contours of [a] right

[are] sufficiently clear’ that every ‘reasonable official would

have understood that what he is doing violates that right.’”

al-Kidd, 563 U.S. at 741 (alterations in original) (quoting

Anderson v. Creighton, 483 U.S. 635, 640 (1987)). “We do

not require a case directly on point, but existing precedent

must have placed the statutory or constitutional question

beyond debate.” Id. Thus, “‘clearly established law’ should

not be defined ‘at a high level of generality.’” White v.

Pauly, 137 S. Ct. 548, 552 (2017) (per curiam) (quoting al-

Kidd, 563 U.S. at 741). “As [the Supreme] Court explained

decades ago, the clearly established law must be

‘particularized’ to the facts of the case.” Id. (citing Anderson,

483 U.S. at 640). “Such specificity is especially important in

the Fourth Amendment context, where the [Supreme] Court

has recognized that ‘[i]t is sometimes difficult for an officer

to determine how the relevant legal doctrine, here excessive

force, will apply to the factual situation the officer

confronts.’” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)

(per curiam) (second alteration in original) (quoting Saucier

v. Katz, 533 U.S. 194, 205 (2001)).

We agree with the district court that Reese has not

identified any sufficiently analogous cases showing that

under similar circumstances, a clearly established Fourth

Amendment right against the use of deadly force existed at

the time of the shooting. The jury determined that when

Reese answered the door to his apartment, he had a knife in

his hand in an elevated position. Upon seeing Reese in the

doorway with the knife, which was very close to where Rose

was standing, Brown immediately fired a shot from his rifle

at Reese, but missed. After Brown fired the shot, he saw

Reese back into the apartment and drop the knife. Rose, who

saw Reese when he first opened the door, lost sight of Reese

REESE V. COUNTY OF SACRAMENTO 13

when he backed up into his apartment and after Brown fired

at him. Rose then advanced toward the doorway and was

surprised to see Reese standing in the apartment. Rose stated

that he could not see Reese’s hands but upon seeing him, shot

Reese in the chest from three to five feet away. Notably,

while the jury found that Reese did not brandish the knife at

Rose, they also found that at the time Rose fired his shot, he

did not see Reese’s hands.

Although Reese goes to great lengths to remind this Court

that we do not demand a case with “materially similar”

factual circumstances or even facts closely analogous to his

case, Hope v. Pelzer, 536 U.S. 730, 741 (2002), none of

Reese’s cited cases demonstrate that the contours of his

Fourth Amendment right were sufficiently clear such that

“any reasonable official in [his] shoes would have understood

that he was violating it.” City & County of San Francisco v.

Sheehan, 135 S. Ct. 1765, 1774 (2015) (alteration in original)

(quoting Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014)).

Critically, Reese points to no case that considered the relevant

question whether Deputy Rose, having come within striking

distance of a suspect who had held a knife a fraction of a

second before, was objectively unreasonable in using deadly

force before determining whether the suspect still possessed

the knife. Compare Wilkinson v. Torres, 610 F.3d 546, 551

(9th Cir. 2010) (holding that officer’s shooting of plaintiff did

not violate a constitutional right where plaintiff had ignored

officer commands and was accelerating towards officer on

foot); Smith v. City of Hemet, 394 F.3d 689, 693, 702, 704 n.7

(9th Cir. 2005) (en banc) (declining to address qualified

immunity, but concluding that a rational jury could find that

officers’ use of pepper spray and a police canine on a plaintiff

was unconstitutionally excessive where the “[t]he record does

not reveal any basis for believing that [plaintiff] was armed,”

14 REESE V. COUNTY OF SACRAMENTO

where his wife had informed officers that plaintiff “did not

have a gun, there were no weapons in the house, and he was

clad in his pajamas”); Harris v. Roderick, 126 F.3d 1189,

1203 (9th Cir. 1997), cert. denied, 522 U.S. 1115 (1998)

(finding officer’s shooting of plaintiff objectively

unreasonable where the officer was “safely ensconced on [a]

hill overlooking” the cabin that plaintiff was running toward

and the plaintiff had made “[n]o threatening movement . . .

with respect to [the shooting officer] or anyone else, even

after [the officer] shot [plaintiff’s friend]”); Curnow By and

Through Curnow v. Ridgecrest Police, 952 F.2d 321, 323,

325 (9th Cir. 1991) (affirming district court’s denial of

officer’s motion for summary judgment on qualified

immunity grounds where the non-moving plaintiff’s evidence

showed that the plaintiff had not pointed his gun at officers,

his gun was not loaded, and he was not facing the officer who

opened fire).

Reese relies on additional cases that post-date March

2011, when the incident occurred, but those decisions “could

not have given fair notice to [Deputy Rose] and are of no use

in the clearly established inquiry.” Brosseau v. Haugen,

543 U.S. 194, 200 (2004). Even to the extent that those cases

reflect clearly established case law that pre-dates March

2011, their factual contexts make clear that the law was not

clearly established for the circumstances Deputy Rose

confronted here. See Zion v. County of Orange, 874 F.3d

1072, 1076 (9th Cir. 2017) (holding excessive force was used

if defendant officer fired a second round of close range

bullets at a plaintiff who was curled up on the floor and

injured from a first round of fire, and then subsequently

stomped on the plaintiff’s head); Longoria v. Pinal County,

873 F.3d 699, 708–09, 710 (9th Cir. 2017) (holding that

officer’s use of deadly force could have violated a clearly

REESE V. COUNTY OF SACRAMENTO 15

established right if jury determined plaintiff who was

surrounded by law enforcement and had not brandished a

weapon during forty minutes of observation was in the

process of surrendering at the time of the shooting, rather

than assuming a shooting stance); Estate of Lopez by and

Through Lopez v. Gelhaus, 871 F.3d 998, 1021–22 (9th Cir.

2017) (remanding for trial where the facts, viewed in the light

most favorable to the non-moving plaintiff in response to

defendants’ motion for summary judgment on defense of

qualified immunity, could show that the force used was

unreasonable because the victim never raised the perceived

weapon or made a “harrowing gesture” when he turned

toward the officers).

Moreover, Reese’s reliance on our decision in Hughes v.

Kisela, 862 F.3d 775 (9th Cir. 2016), only confirms that the

law was not clearly established here. In Hughes, we reasoned

that an officer’s shooting of a plaintiff who was approaching

a third party while holding a kitchen knife at her side violated

the plaintiff’s clearly established rights, where the facts

viewed in the plaintiff’s favor showed that she was not “angry

or menacing,” officers knew only that she has been using the

knife to carve a tree, and the plaintiff did not understand

orders to drop the weapon. Id. at 785. After Reese’s appeal

was argued, the Supreme Court summarily reversed our

decision in Hughes, concluding that it was “far from an

obvious case,” and that none of our precedents squarely

governed the facts involved. Kisela v. Hughes, 138 S. Ct.

1148, 1153 (2018). Given that Rose had greater reason to

perceive a threat here, and no luxury of time or distance to

discern whether Reese still posed such a threat, the Supreme

Court’s decision in Kisela v. Hughes further illustrates that

Rose is entitled to qualified immunity.

16 REESE V. COUNTY OF SACRAMENTO

None of Reese’s cases “squarely govern” the situation

that Rose confronted such that they would have given Rose

clear warning that his use of deadly force was objectively

unreasonable. Mullenix, 136 S. Ct. at 310 (quotation marks

omitted).1 Absent a showing by Reese that the right was

clearly established at the time, Rose is entitled to qualified

immunity on the Fourth Amendment excessive force claim.

We therefore affirm the district court’s ruling that Deputy

Rose is entitled to qualified immunity on that claim.

B. Reese’s Bane Act Claim

Reese also claims that the district court erred when it

granted post-verdict summary judgment to Defendants on his

claim under California Civil Code section 52.1, known as the

Bane Act. Reese asserts that the district court properly

rejected the Defendants’ proposed jury instruction on his

Bane Act claim and therefore Defendants are not entitled to

a new trial. We disagree.

The Tom Bane Civil Rights Act, 1987 Cal. Stat. 4544,

was enacted in 1987 to address hate crimes. The Bane Act

civilly protects individuals from conduct aimed at interfering

with rights that are secured by federal or state law, where the

1

We also agree with the district court that the jury’s negative answer

to Question 14 (“At the time Deputy Rose fired his shot, did it appear that

Plaintiff posed an immediate threat of death or serious physical injury to

Deputy Rose?”) was unhelpful to the judge’s legal question of whether

any “reasonable” officer would have understood that the use of deadly

force was at that time proscribed by clearly established Fourth

Amendment excessive force law. As the district court noted, the question

does “not specify from whose perspective it did appear that Reese posed

an immediate threat of death or serious physical injury to Rose.” (Doc.

216 at 11).

REESE V. COUNTY OF SACRAMENTO 17

interference is carried out “by threats, intimidation or

coercion.” See Venegas v. County of Los Angeles, 63 Cal.

Rptr. 3d 741, 742 (Cal. Ct. App. 2007). Section 52.1

“provides a cause of action for violations of a plaintiff’s state

or federal civil rights committed by ‘threats, intimidation, or

coercion.’” Chaudhry v. City of Los Angeles, 751 F.3d 1096,

1105 (9th Cir. 2014) (quoting Cal. Civ. Code § 52.1).2

Claims under section 52.1 may be brought against public

officials who are alleged to interfere with protected rights,

and qualified immunity is not available for those claims. See

Venegas, 63 Cal. Rptr. 3d at 753. Reese alleged a Bane Act

violation based upon the same facts as his Fourth Amendment

excessive force claim.

Before trial, Defendants moved for summary judgment,

arguing that a Bane Act claim required a showing of threats,

intimidation or coercion in addition to the elements required

to establish a violation of the Fourth Amendment. The

district judge who ruled on the motion (who was not the trial

judge) denied the motion based on Chaudhry, which held that

section 52.1 “does not require proof of discriminatory intent”

and “that a successful claim for excessive force under the

Fourth Amendment provides the basis for a successful claim

under § 52.1.” 751 F.3d at 1105.

Likewise, at the conclusion of trial, the district court

rejected Defendants’ proposed alternative California Civil

2

Chaudhry relied on Cameron v. Craig, 713 F.3d 1012, 1022 (9th

Cir. 2013) for the proposition that “the elements of [an] excessive force

claim under § 52.1 are the same as under § 1983.” Id.

18 REESE V. COUNTY OF SACRAMENTO

Jury Instruction [CACI] 30663 on the Bane Act. In re-urging

their position, Defendants argued that Reese’s proposed

instruction eviscerates the requirement in CACI 3066 that

additional elements are necessary to prove a Bane Act claim

because his instruction is “essentially amounting to a

passthrough where there’s a Fourth Amendment violation

saying that if there’s a Fourth Amendment violation, there’s

also a Bane Act violation.” The district court summarily

explained that Defendants’ argument had previously been

rejected on summary judgment and “I’m going to reject it

too.” Therefore, the district court instructed the jury as

follows: “If you determine that Plaintiff prevails on his

Fourth Amendment excessive force claim against Defendant

Brown and/or Defendant Rose, then Plaintiff also prevails on

his Bane Act claim against that Defendant or Defendants.”

The jury found for Reese and against Deputy Rose and the

County on the Bane Act claim.

3

The applicable 3066 instruction reads:

[Plaintiff] claims that [defendant] intentionally

interfered with [or attempted to interfere with] [his/her]

civil rights by threats, intimidation, or coercion. To

establish this claim, [plaintiff] must prove all of the

following:

1. That [defendant] acted violently against

[plaintiff]/ [and][ plaintiff]’s property] [to prevent

[him/her] from exercising [his/her] right [insert

right]/to retaliate against [plaintiff] for having

exercised [his/her] right [insert right]];]

2. That [plaintiff] was harmed; and

3. That [defendant]'s conduct was a substantial

factor in causing [plaintiff]'s harm.

REESE V. COUNTY OF SACRAMENTO 19

In their request for a new trial, Defendants claimed that

the trial court erred when it declined to give their CACI 3066

instruction. In addition to reasserting the arguments made in

their summary judgment motion, Defendants also attempted

to distinguish Chaudhry from this case stating “contrary to

Defendants in this case ‘[t]he City defendants [in Chaudhry]

conceded in their brief . . . that a successful claim for

excessive force under the Fourth Amendment provides the

basis for a successful claim under § 52.1.’” The Defendants

bolstered their position with several district court cases that

held that the Bane Act does not apply to an allegation of

excessive force without a showing that the act was done to

interfere with a separate state or federal constitutional right.

Thus, Defendants asserted that Chaudhry “does not equate to

a correct application of § 52.1” and a new trial with a CACI

3066 instruction was required.

Convinced by the Defendants’ arguments, the district

court changed its mind. The court concluded that the

Defendants were correct in their argument that their

proposed instruction should have been given. The court

pronounced that because the evidentiary record is complete

on the Bane Act claim, rather than granting a new trial, the

court would issue an amended judgment in favor of

Defendants on the Bane Act claim.

In explaining its ruling the district court stated that

“California Appellate Court authority reveals: The Bane Act

‘requires a showing of coercion independent from the

coercion inherent in [constitutional violation] itself.’” The

district court found that the evidence in this case did not,

therefore, support this Bane Act element. The court relied on

Shoyoye v. County of Los Angeles, which held that “where

coercion is inherent in the constitutional violation alleged,

20 REESE V. COUNTY OF SACRAMENTO

i.e., an overdetention in County jail, the [Bane Act] statutory

requirement of ‘threats, intimidation, or coercion’ is not met”

and that “[t]he statute requires a showing of coercion

independent from the coercion inherent in the wrongful

detention itself.” 137 Cal. Rptr. 3d 839, 849 (Cal. Ct. App.

2012).

We find that the district court erred in granting summary

judgment to the Defendants. We note that at the time that the

district court issued its sua sponte summary judgment order,

it observed that “no California Appellate Court decision

addressed whether excessive force alone - ‘the use of

excessive force during an otherwise lawful arrest,’ - is

sufficient to sustain a Bane Act violation[.]” (Doc. 216 at

27). Thus, the district court relied on what it determined were

persuasive decisions, including Shoyoye, that explain that

more is required. The district court’s reliance on Shoyoye is

misplaced, however. First, Shoyoye is distinguishable from

Reese’s excessive force claim because it involved a claim of

wrongful detention. Chaudhry, upon which the prior court

relied when it initially denied Defendants’ summary

judgment motion, is an excessive force case. Moreover,

Chaudhry was decided two years after Shoyoye and since the

Chaudhry decision, district courts have largely interpreted it

to mean that section 52.1 does not require a showing of

“threats, intimidation and coercion” separate from an

underlying constitutional violation. See, e.g., Rodriguez v.

County of Los Angeles, 96 F. Supp. 3d 990, 999 (C.D. Cal.

2014) (distinguishing Shoyoye by interpreting it to apply only

when the constitutional violation is unintentional); Boarman

v. County of Sacramento, 55 F. Supp. 3d 1271, 1287 (E.D.

Cal. 2014) (applying Chaudhry and holding that the

plaintiff’s Bane Act claim based on excessive force survived

summary judgment because the elements of such a claim

REESE V. COUNTY OF SACRAMENTO 21

under section 52.1 are the same as under § 1983); Barragan

v. City of Eureka, No. 15-cv-02070-WHO, 2016 WL

4549130, at *8 (N.D. Cal. Sept. 1, 2016) (agreeing with

Chaudhry that the elements of an excessive force claim under

§ 1983 establish the elements of a Bane Act claim and that no

additional elements are required).

Although there are ample federal district court cases that

interpret Chaudhry in a way that is contrary to the district

court’s decision here, to be sure, the district court is not

bound by those decisions. However, where “there is relevant

precedent from the state’s intermediate appellate court, the

federal court must follow the state intermediate appellate

court decision unless the federal court finds convincing

evidence that the state’s supreme court likely would not

follow it.” Ryman v. Sears, Roebuck & Co., 505 F.3d 993,

994 (9th Cir. 2007) (emphasis omitted). Until recently,

California’s appellate court guidance had not squarely

addressed whether in an excessive force case the Bane Act

requires a separate showing of coercion beyond that inherent

in the use of force. Reese’s supplemental authority however,

provides us with that guidance which we are now bound to

apply.

In Cornell v. City and County of San Francisco, the

California Court of Appeal recognized that Bane Act claims

are routinely alleged in Section 1983 claims under federal

pendent jurisdiction and that “[t]he Bane Act’s requirement

that interference with rights must be accomplished by

threats[,] intimidation or coercion ‘has been the source of

much debate and confusion.’” 225 Cal. Rptr. 3d 356, 384

(Cal. Ct. App. 2017) (citations omitted). Thus, the court

announced its endeavor to provide clarity. In so doing, the

court examined Shoyoye’s conclusion that the section 52.1

22 REESE V. COUNTY OF SACRAMENTO

claim required a showing of coercion independent of the

coercion inherent in the wrongful detention at issue in that

case. Concluding that Shoyoye was limited to cases involving

mere negligence, the court in Cornell ruled that “[n]othing in

the text of the statute requires that the offending ‘threat,

intimidation or coercion’ be ‘independent’ from the

constitutional violation alleged.” Cornell, 225 Cal. Rptr. 3d

at 383. The court agreed “that the use of excessive force can

be enough to satisfy the ‘threat, intimidation or coercion’

element of Section 52.1.’” Id. at 382.

Cornell also makes clear, however, that the Bane Act

imposes an additional requirement beyond a finding of a

constitutional violation. Cornell explained that “[p]roperly

read, the statutory phrase ‘threat, intimidation or coercion’

serves as an aggravator justifying the conclusion that the

underlying violation of rights is sufficiently egregious to

warrant enhanced statutory remedies, beyond tort relief.” Id.

at 383. Accordingly, Cornell held that “the egregiousness

required by Section 52.1 is tested by whether the

circumstances indicate the arresting officer had a specific

intent to violate the arrestee’s right to freedom from

unreasonable seizure.” Id. at 384. In so holding, Cornell

adopted the specific intent standard established in Screws v.

United States, 325 U.S. 91 (1945), for assessing criminal

violations of federal civil rights.4 225 Cal. Rptr. 3d at

384–85.

4

Cornell acknowledged that Section 52.1 is civil, while the federal

laws to which Screws applies, 18 U.S.C. §§ 241 and 242, are criminal.

225 Cal. Rptr. 3d at 385. But given their structural similarities, Cornell

concluded that, though “the burden of proof is fundamentally different in

these two arenas . . . we see no reason why the applicable mens rea

element ought to differ.” Id.

REESE V. COUNTY OF SACRAMENTO 23

Thus, based on the weight of this new state authority, and

our obligation to consider the California Court of Appeal’s

thorough analysis of its own law, we draw two conclusions as

to the necessary showing for an excessive force claim under

the Bane Act. First, the Bane Act does not require the

“threat, intimidation or coercion” element of the claim to be

transactionally independent from the constitutional violation

alleged. Cornell, 225 Cal. Rptr. 3d at 382–83. Second, the

Bane Act requires a “a specific intent to violate the arrestee’s

right to freedom from unreasonable seizure.” Id. at 384.

We see no “convincing evidence that the state’s supreme

court likely would not follow” Cornell in reaching these two

conclusions. Ryman, 505 F.3d at 994. As to the requirement

of coercion independent from the constitutional violation,

Cornell correctly notes that the plain language of Section 52.1

gives no indication that the “threat, intimidation, or coercion”

must be independent from the constitutional violation. See

Cornell, 225 Cal. Rptr. 3d at 383. Moreover, in the two

California Supreme Court cases to apply Section 52.1 in the

Fourth Amendment context, neither gave any indication of an

independent coercion requirement. In Venegas v. County of

Los Angeles, the California Supreme Court, in holding that a

Section 52.1 plaintiff need not be a member of a protected

class, found that plaintiffs had “adequately stated a cause of

action under section 52.1” where they alleged warrantless,

unconsented searches and unlawful detention. 87 P.3d 1,

3–4, 14 (Cal. 2004). In Jones v. Kmart Corp., the court held

that the plaintiff could not bring a Fourth Amendment

excessive force claim against a private security guard because

the lack of a state actor meant there was no constitutional

violation, but did not suggest that some coercion independent

24 REESE V. COUNTY OF SACRAMENTO

of the alleged excessive force was required. 949 P.2d 941,

942, 944 (Cal 2004).5

Similarly, the specific intent requirement articulated in

Cornell is consistent with the language of Section 52.1, which

requires interference with rights by “threat, intimidation or

coercion,” words which connote an element of intent. This is

also reflected in California’s model jury instruction, CACI

3066, which characterizes a Bane Act claim as one by the

plaintiff that the defendant “intentionally interfered with [or

attempted to interfere with] [his/her] civil rights by threats,

intimidation, or coercion.” CACI 3066 (emphasis added); see

also Cornell, 225 Cal. Rptr. 3d at 387 (approving use of

CACI 3066 because it “properly focused the jury on

intentional violation of Cornell’s right to be free from

unreasonable seizure”). As above, we observe that the Fourth

Amendment claims asserted in Venegas and Jones are not

inconsistent with Cornell’s approach.

Though we have previously stated that “the elements of

the excessive force claim under § 52.1 are the same as under

§ 1983,” Chaudhry, 751 F.3d at 1105 (quoting Cameron,

713 F.3d at 1022), we do not read those cases as contradicting

the intent requirement articulated in Cornell. In Cameron, we

noted that the plaintiff “assert[ed] no California right

different from the rights guaranteed under the Fourth

Amendment,” 713 F.3d at 1022, and so concluded that the

5

To the extent that we previously followed Shoyoye in concluding

that “a plaintiff in a search-and-seizure case must allege threats or

coercion beyond the coercion inherent in a detention or search,” Lyall v.

City of Los Angeles, 807 F.3d 1178, 1196 (9th Cir. 2015), we are now

guided by Cornell to interpret Shoyoye’s holding as limited to cases

involving mere negligence, see Cornell, 225 Cal. Rptr. 3d at 381–82.

REESE V. COUNTY OF SACRAMENTO 25

elements of the excessive force claim were the same, citing

our prior observation in Reynolds v. County of San Diego that

“[s]ection 52.1 does not provide any substantive protections;

instead, it enables individuals to sue for damages as a result

of constitutional violations.” Cameron, 713 F.3d at 1022

(quoting Reynolds, 84 F.3d 1162, 1170 (9th Cir. 1996),

overruled on other grounds, Acri v. Varian Assocs., Inc., 114

F.3d 999, 1000 (9th Cir. 1997)). Thus, Cameron was

concerned with the nature of the elements of the predicate

constitutional violation asserted under § 1983 and the Bane

Act, but did not address whether the Bane Act required some

showing of intent in addition to showing the constitutional

violation. Chaudhry had no occasion to address the issue

either, as the defendants there conceded that the elements

were the same. 751 F.3d at 1105.

Applying these principles here, we conclude that the

district court’s jury instructions were erroneous. The district

court instructed the jury that if Reese prevailed on his Fourth

Amendment claim, then he also prevailed on his Bane Act

claim. But the jury did not consider Deputy Rose’s intent in

its finding that he violated Reese’s Fourth Amendment rights.

See Graham v. Connor, 490 U.S. 386, 397 (1989) (“[T]he

‘reasonableness’ inquiry in an excessive force case is . . .

whether the officers’ actions are ‘objectively reasonable’ in

light of the facts and circumstances confronting them, without

regard to their underlying intent or motivation.”). As we have

explained in applying the Screws specific intent standard to

an excessive force violation of 18 U.S.C. § 242,6 “a mere

6

In relevant part, 18 U.S.C. § 242 applies to “Whoever, under color

of any law, statute, ordinance, regulation, or custom, willfully subjects any

person in any State, Territory, Commonwealth, Possession, or District to

26 REESE V. COUNTY OF SACRAMENTO

intention to use force that the jury ultimately finds

unreasonable—that is, general criminal intent—is

insufficient.” United States v. Reese, 2 F.3d 870, 885 (9th

Cir. 1993). Rather, the jury must find that the defendants

“intended not only the force, but its unreasonableness, its

character as ‘more than necessary under the circumstances.’”

Id. But it is not necessary for the defendants to have been

“thinking in constitutional or legal terms at the time of the

incidents, because a reckless disregard for a person’s

constitutional rights is evidence of a specific intent to deprive

that person of those rights.” Id. Because the district court’s

Bane Act jury instruction did not require this inquiry into

Deputy Rose’s intent, it was incorrect. The district court’s

post-trial order correctly recognized that Defendants’

proposed jury instruction, CACI 3066, should have been

given, see Cornell, 225 Cal. Rptr. at 386–87.

In addition to giving an incorrect jury instruction, the

district court erred when it issued its post-trial grant of

summary judgment to Defendants on the Bane Act claim.

The district court’s decision was based on an erroneous

conclusion that the Bane Act required coercion independent

from the constitutional violation. Although there was no

evidence of coercion independent from Deputy Rose’s use of

objectively unreasonable force, we cannot conclude from the

record that, taking the evidence in the light most favorable to

Reese, no reasonable jury could find that Deputy Rose had a

specific intent to violate Reese’s Fourth Amendment rights.

See Nozzi v. Housing Auth. of City of L.A., 806 F.3d 1178,

the deprivation of any rights, privileges, or immunities secured or

protected by the Constitution or laws of the United States. . . .”

REESE V. COUNTY OF SACRAMENTO 27

1199–200 (9th Cir. 2015). The decision is therefore reversed

and Reese’s Bane Act claim is remanded for a new trial.7

II. Defendants’ Cross-Appeals

A. Heck v. Humphrey, 512 U.S. 477 (1994) does not

bar Reese’s claims.

Prior to trial, Reese entered a “no contest” plea to a

misdemeanor charge that he violated California Penal Code

§ 417(a)(1) for drawing or exhibiting a deadly weapon, other

than a firearm, “in a rude, angry, or threatening manner,” thus

disposing of his original charge of Assault with a Deadly

Weapon.8 Under Heck v. Humphrey, 512 U.S. 477, 487

(1994), “[w]hen a plaintiff who has been convicted of a crime

under state law seeks damages in a § 1983 suit, ‘the district

court must consider whether a judgment in favor of the

plaintiff would necessarily imply the invalidity of his

conviction or sentence.’” Hooper v. County of San Diego,

629 F.3d 1127, 1130 (9th Cir. 2011) (quoting Heck, 512 U.S.

at 487). If it would, the civil action is barred. Id.; see also

Yount v. City of Sacramento, 183 P.3d 471, 484 (Cal 2008)

(extending Heck to California state law claims). Defendants

argue that Reese’s misdemeanor conviction bars his claims

7

The jury also found the deputy and County liable for battery under

state law, and the damages award was therefore unaffected by the district

court’s decision to grant summary judgment on the Bane Act claim, other

than a reduction of $21,175.00 for past medical expenses that had already

been paid on Reese’s behalf under the County Indigent Program. Because

we do not reinstate the jury verdict on Reese’s Bane Act claim, we do not

reconsider the district court’s denial of his motion for attorney’s fees and

costs.

8

California Penal Code § 245(c).

28 REESE V. COUNTY OF SACRAMENTO

because the claims necessarily imply the invalidity of his

conviction.

Reese counters that Defendants did not produce evidence

at trial to show the factual basis for Reese’s no contest plea.

Defendants rely upon Reese’s trial testimony, which they

characterize as stating that he “displayed/brandished the knife

when he opened the door, but denied it was angry or

threatening, and could not say whether the manner of display

was ‘not polite.’” Reese points out, however, that there are

other instances of conduct that could have formed the factual

basis for his misdemeanor conviction including evidence that

he exhibited a knife to Brittany Shurtleff in an angry or

threatening manner before the Deputies arrived. The district

court found that even if Reese’s misdemeanor conviction was

based on a finding of “rudeness,” his trial testimony did not

invalidate that conviction finding.9 In addition, the district

court found that Defendants failed to show that the victim or

victims of the conviction were any of the officers involved in

Reese’s action.

We agree. Defendants have not demonstrated that

Reese’s claims in this action are barred by Heck. Defendants

have identified nothing in the record that shows the specific

factual basis for Reese’s misdemeanor conviction. Without

such information, this Court cannot determine that Reese’s

claim of excessive force in this case would call into question

the validity of his misdemeanor weapon conviction. See

Smith, 394 F.3d at 698–99. The district court’s ruling is

affirmed.

9

Contrary to Defendants’ assertions, that Reese denied raising the

knife to Shurtleff in his civil trial testimony does not necessarily mean that

this was not the basis for his criminal conviction.

REESE V. COUNTY OF SACRAMENTO 29

B. The jury’s award of $150,000.00 for future non-

economic loss was supported by substantial

evidence.

Defendants challenge the district court’s ruling that

upheld the jury’s award of $150,000.00 to Reese for future

non-economic loss. They contend there was no evidence at

trial of future non-economic losses. They argue that “[a]t

most, the jury was shown a visible physical scar, but there

was no testimony that future care was needed, no testimony

that the scar caused any sort of anxiety, mental disturbance or

other non-economic loss.”

The district court cited two district court cases and a

California Supreme Court case in determining that “[a]wards

for non-economic damages, which included pain and

suffering, can be supported by a finding of permanent

scarring.” The district court then found that “[i]n light of

Reese’s scarring, an inference can reasonably be drawn that

he will continue to endure suffering” and that Defendants

failed to show this portion of the judgment should be

amended.

“A jury’s verdict, including a damages award, must be

upheld if supported by ‘substantial evidence.’” Freitag v.

Ayers, 468 F.3d 528, 537 (9th Cir. 2006), cert. denied,

549 U.S. 1323 (2007). “Substantial evidence is such relevant

evidence as reasonable minds might accept as adequate to

support a conclusion even if it is possible to draw two

inconsistent conclusions from the evidence.” Landes Const.

Co. v. Royal Bank of Canada, 833 F.2d 1365, 1371 (9th Cir.

1987). Substantial deference is afforded to a jury’s finding of

the appropriate amount of damages. United States v. CB &

I Constructors, Inc., 685 F.3d 827, 839 (9th Cir. 2012).

30 REESE V. COUNTY OF SACRAMENTO

Reese showed the jury multiple scars on his body that

resulted from the surgeries he underwent after being shot.

Even if the only evidence in support of Reese’s non-

economic damages was his multiple scars and any inferences

drawn therefrom, Defendants have not demonstrated it was

error for the district court to conclude that was sufficient to

uphold the amount awarded for non-economic damages. The

district court’s decision on this issue is affirmed.

C. Any error in the jury instruction on Reese’s

Fourth Amendment claim that authorized liability

if “Defendant shot at and/or shot the plaintiff” was

harmless.

Defendants next contend the district court, over their

objection, gave an erroneous jury instruction providing that

a Fourth Amendment violation could be shown by proving

that one of the Defendants “shot at and/or shot the plaintiff,”

among other elements. Defendants argue “[t]his constituted

prejudicial error by skewing the burden of proof at trial.”

Defendants argue that merely shooting at someone is

insufficient to constitute a seizure.

The Court need not decide whether the instruction was

erroneous because any error was rendered harmless by the

jury’s verdict. In their answers to the special interrogatories,

the jury found that the round fired from Deputy Brown’s rifle

did not hit Reese but the round fired by Deputy Rose did.

Correspondingly, the jury found a Fourth Amendment

violation by Deputy Rose but not Deputy Brown. Thus, to the

extent Deputy Brown could have been found liable under the

Fourth Amendment for merely shooting at Reese rather than

shooting and hitting him, the jury’s findings prevented any

harm from the potentially erroneous instruction. Thus, even

REESE V. COUNTY OF SACRAMENTO 31

if the district court erred in giving that instruction, the error

was harmless.

D. The district court did not abuse its discretion when

it failed to exclude certain testimony by Reese’s

expert, and certain testimony by Defendants’

expert elicited on cross-examination.

Defendants next argue the district court abused its

discretion by failing to exclude testimony by Reese’s expert

that a particular set of circumstances represented a “don’t

shoot scenario.” The district court overruled Defendants’

objection at trial that the question presented an incomplete

hypothetical and invaded the province of the jury. Citing no

legal authority, Defendants argue the evidence should have

been excluded.

“We review the district court’s evidentiary decisions for

abuse of discretion, and the appellant is . . . required to

establish that the error was prejudicial.” Ambat v. City &

County of San Francisco, 757 F.3d 1017, 1032 (9th Cir.

2014) (alteration in original) (quoting Allstate Ins. Co. v.

Herron, 634 F.3d 1101, 1110 (9th Cir. 2011)).

As to the argument that the hypothetical was incomplete

in that it referred to Reese being unarmed after he backed up

into the apartment, the jury was not required to accept the

described scenario as true and, in fact, made a finding that

Deputy Rose did not see Reese’s hands when he shot him. As

to the argument that the expert’s answer invaded the province

of the jury in that it addressed the ultimate issue, Defendants

have not shown prejudicial error. As a general rule, “[a]n

opinion is not objectionable just because it embraces an

32 REESE V. COUNTY OF SACRAMENTO

ultimate issue.” Fed. R. Evid. 704(a). The district court’s

ruling on this issue is therefore affirmed.

Defendants also challenge the district judge’s failure to

sustain objections to questions asked of Defendants’ expert

by Reese’s counsel. The questions addressed scenarios

pertaining to whether Deputy Rose saw Reese’s hands when

he shot him. Again, given the jury’s finding on this issue,

Defendants have failed to show prejudicial error, as the

district court determined. The district court’s ruling is

affirmed.

E. The district court did not err in excluding the

deposition testimony of a defense witness who did

not appear in court to testify.

Next, Defendants argue the district court erred in

excluding from the trial deposition testimony of Brittany

Shurtleff, a witness who Defendants claim was “unavailable”

under the Federal Rules of Evidence. Defendants contend

they successfully served a subpoena on the witness and made

reasonable, good faith efforts to procure her presence.

The district court determined that defense counsel, despite

being aware the witness did not intend to appear in court,

failed to make additional reasonable efforts in the time

leading up to trial to ensure the witness’s appearance in court.

The district court therefore concluded there was no basis “to

justify finding her unavailable under Federal Rule of

Evidence 804(a)(5).”

Likewise, Defendants here simply assert that counsel

made reasonable, good faith efforts to procure the witness’s

presence but they fail to explain what those efforts were.

REESE V. COUNTY OF SACRAMENTO 33

Absent any evidence of actual reasonable, good faith efforts

to ensure the witness’s appearance, Defendants have not

demonstrated that the district court abused its discretion. The

district court’s ruling is therefore affirmed.

AFFIRMED IN PART, and REVERSED AND

REMANDED IN PART. Each party shall pay its own

costs on appeal.