holding a proper jury 19 instructions for a § 1983 integral participation claim must explain “either integral participation or 20 personal involvement was required before a jury could find officers liable” and liability could not 21 attach “for merely being present at the scene of the search.”
How later courts described this case
- holding a proper jury 19 instructions for a § 1983 integral participation claim must explain “either integral participation or 20 personal involvement was required before a jury could find officers liable” and liability could not 21 attach “for merely being present at the scene of the search.”
- holding that “mere presence 8 at a search or membership in a group, without personal involvement in and a causal connection 9 to the unlawful act, [does not] create liability under section 1983”
- explaining that a plaintiff must allege that each defendant personally participated 14 in the conduct alleged to have violated his constitutional rights
- explaining that a plaintiff must allege that each defendant personally participated 23 in the conduct alleged to have violated his constitutional rights
Written by the judges who cited it.
The opinion
SILVERMAN, Circuit Judge,
concurring in the judgment:
I respectfully concur in the result. I write separately because, in my view, the Rutherford instruction submitted by the plaintiff was a correct statement of the law. It was properly refused only because it was not justified by the evidence. Specifically, the evidence at trial was not susceptible of the interpretation that the damage occurred while no one but the officers was present. To the contrary, the residents testified to what they say they witnessed the police officers doing. The police officers gave their opposing version of the story, and it was for the jury to decide which to believe.
As a general rule, a res ipsa-type instruction can be given in a case such as this if: first, the defendants are uniquely positioned, to the exclusion of others, to know the circumstances that caused the plaintiffs injury; and second, the injury would not normally occur without wrongdoing on the defendants’ part. See Reber v. United States, 951 F.2d 961 , 964 n. 1 (9th Cir.1991). Res ipsa belongs to the world of negligence. This case, like Rutherford, involves an intentional constitutional tort. However, the principle of proof is the same. If government actors/defendants, due to circumstances of their own creation, prevent the plaintiff from identifying precisely which of them caused the plaintiffs injury, the jury can infer causation against those in exclusive control of the event. This is just what the proposed Rutherford instruction would have permitted. As I see it, the instruction was correctly refused because it was not supported by the evidence, not because it misstated the law.