# Petition for Writ of Certiorari — Sereno v. Pacumio

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1994
- **Citation:** 510 U.S. 1193

## Text

Supreme Court, u.s.
FILED

BSL 157 Jay 18 99s

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Pacumio v. Sereno, No. 92-15290

SE, nt te wae passim
Pate v. Seaboard R.R., 819 F.2d 1074

CR Se. is sig “SW oe ek eee 8 eo 10
Pierson v. Ray, 386 U.S. 547 (1967)... 2... . 15

Rodrigue v. Dixilyn Corp.,
620 F.2d 537 (Sth Cir. 1980),
cert. denied, 449 U.S. 1113 (1981) ...... 10

Vii

Ryder v. City of Topeka,

814 F.2d 1412 (10thCir. 1987)... . . , 10
Screws v. United States, 325 U.S.91 (1945)... _ . 13
Shearson Hayden Stone, Inc. v. Leach.

583 F.2d 367 (7th Cir. 1978) ...._.. | 10

Smiddy v. Varney, 803 F.2d 1469 (9th Cir. 1986),
opinion modified, 811 F.2d 504

(9th Cir. 1987). ........ 15
Smith v. Gonzales, 459 U.S. 1005 (1982) 16
Stewart v. Hall, 770 F.2d 1267

(4th Cir. 1985). 2... | | 13
Surowitz v. Hilton Hotels Corp.,

383 U.S. 363 (1966). . . 12
United States Constitution
U.S. Const. amend. V . 2,12
Statutes and Rules
28 U.S.C. § 1254(1)_ ay , 2
28 U.S.C. §2106 . . lee | i> » ath
ep sso 5 6 te we ee passim
ce Te flere a ak 2,13
A) ats ot tee passim
gS ee 1]
Sup. Ct. R.24.1(a) _ . Faria cts ede 1]
Other Materials
2 Moore's Federal Practice, § 1.13{1}

OS ere ee Oe 13

9 Wright & Miller, Federal Practice and Procedure.
ES ga sh 11

No.

—-—-

IN THE
Supreme Court of the United States
OCTOBER TERM, 1993 |

VINCENT SERENO,
Petitioner,
v.
EDUARDO PACUMIO, et al.,
Respondents.

Petition for Writ of Certiorari to the
United States Court of Appeals
for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Vincent Sereno hereby petitions for a writ of certiorari to
review the decision and judgment of the United States Court of
Appeals for the Ninth Circuit in Pacumio v. Sereno, No. 92-
15290, issued on October 5, 1993.

OPINIONS BELOW

The memorandum opinion of the court of appeals (Pet.
App. A, at la-6a, infra) is unreported. The district court judg-
ment affirmed by the court of appeals (Pet. App. B, at 7a-10z,
infra) is unreported. The district court opinion on post-trial
motions for judgment notwithstanding the verdict or for new
trial affirmed by the court of appeals (Pet. App. C, at 1 1a-36a,
infra) is unreported.

2

JURISDICTION

The decision of the court of appeals was issued on October
5, 1993. A timely application for extension of ume to file a
petition for writ of certiorari until January 18, 1994 was granted
on December 22, 1993. Sereno v. Pacumio, Nu. A-509, ___
U.S. ___ (1993) (O’Connor, J.). The jurisdiction of this Court
rests on 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION, STATUTES AND
RULES INVOLVED

The Fifth Amendment to the United States Constitution is
set out in the Appendix (Pet. App. D, at 37a, infra).

Section 1983 of Title 42, United States Code, is set out in
the Appendix (Pet. App. D, at 37a, infra).

Section 2106 of Title 28, United States Code, is set out in
the Appendix (Pet. App. D., at 37a, infra).

Rules | and 51 of the Federal Rules of Civil Procedure also
are set out in the Appendix (Pet. App. D., at 38a, infra).

STATEMENT OF THE CASE

Following their eviction from a campground near Merced,
California, twenty-five plaintiffs lodged eleven different causes
of action for discrimination and other constitutional injuries.
After an eight-day trial, a single plaintiff was awarded $4,500
for the one cause of action on which the trial court did not
instruct the jury. The plaintiffs’ lawyers were awarded more
than $100,000 in fees.

3

1. Ranger Sereno Responds to Reports of
Disturbances Caused by Respondents at
the Lake McSwain Campground

In 1989, Vincent Sereno was a Park Ranger for the Merced
[Irrigation District (“MID”) at four campgrounds in Mariposa
County, California. RT 549-50, 599-600, 1453-54.! In that
Capacity, he operated the MID water and sewage treatment
facilities and maintained the campgiwunds and recreation areas.
RT 405, 462, 550. Sereno and other park rangers also had
overall responsibility for the safety and security of the camp-
grounds, though they had no authority to act as law enforcement
officers. RT 406, 455, 469-70.

On July 14, 1989, a woman complained to Sereno that
Respondents were occupying campground sites she had re-
served at Lake McSwain. Upon verifying the woman’s reser-
vation, Sereno approached Respondents, explained the problem,
and asked them to move. Respondents refused. RT 551-60,
1440-43. Indeed, one member of their group became so angry
that she yelled for a match so she could “burn the place up.” RT
607-08.

For more than two hours, Sereno attempted to work out a
compromise that would allow Respondents to use an adjoining
site, offering them two free nights’ camping for the inconve-
nience of moving. RT 560-61. When Respondents still refused
to move, an argument ensued and Sereno placed a call to the
Sheriff's office. After Sereno announced that Respondents had
to move or leave the campground, Respondents agreed to move.
RT 555-62, 1288. Respondents, all members of seven Filipino
families, protested that they were being discriminated against.
RT 558, 562.

' Citations to “RT” herein are page references in the Reporter’s Trial

Transcript.

4

Later that night, Sereno had to return to the campground to
ask Respondents to quiet down. RT 423-24, 565-66, 580,
1127-28.

The following afternoon, Sereno received a radio report of
complaints about a noisy group at Respondents’ camp site. As
he approached the site vith another ranger, Sereno was hailed
by a camper who compl«ed that Respondents were using a
bullhorn, drinking, and being a “real problem.” RT 570-71.
The rangers observed that Respondents’ group had grown from
12 to 25 people, was very noisy, and that there was evidence of
drinking. They also observed Respondent Jaime Nievera using
a bullhorn to call down to children at the lake and back to others
in the campground. RT 420-21, 426-27, 437-38, 475-76, 575.
76, 588-89.

2. Sereno Orders Respondents to Leave, and is
Assaulted

Ranger Sereno approached Respondents, informing them
that “due to the problems we had here last night and the ongoing
problems today with the bullhorn and the complaints I received
from campers, we are asking you to leave the park.”” Several of
the Respondents became angry, while Nievera and others ac-
cused Sereno of discriminating against them. RT 430-33, 574-
79, 584, 605-06. Nievera approached Sereno with his voice
raised and the bullhorn in his hand. RT 782-83, 1125-26.
Sereno told him to “back off.” RT 584-85, 1180, 1194-95.
Nievera’s wife confirmed that Sereno told Nievera to “back off,”
explaining that Sereno “thought my husband is going to hit him
because he was holding the bullhorn like this on his nght hand.”
RT 1126.

Deputy Sheriff Roger Hogan soon arrived in response to a
call for assistance from the rangers. Sereno told Hogan, and
later testified at trial, that Nievera had tried to strike him in the
face with the bullhom, but he had parried the blow and it landed

5

on his arm. RT 584-85, 608-09, 655-56, 1466. Nievera testified
at trial that he made no threats and struck no blows. RT 1034-37.

After learning from sheriff's deputies that they could be
arrested if they did not leave, Respondents drove away honking
their horns, yelling complaints of discrimination, and promising
they would be heard from again. RT 531, 670, 834, 1297,
1330-31, 1471-72.

3. After Sereno Files an Incident Report, the
District Attorney Charges Nievera with Assault

During the confrontation, Sereno told Hogan that he
“wanted to seek a complaint through the D.A’s office process.”
The following day, Sereno filed a report of Nievera’s assault
with his supervisor. Deputy Sheriff Hogan testified that he
prepared an incident report based upon Sereno’s statement
Although Sereno knew that his report would be sent to the
district attorney, he never met with the district attorney or
discussed the case with him. RT 596-97, 608-09, 1466-68.

After the district attorney filed assault charges, Nievera
negotiated an agreement to serve a year of “District Attorney’ s
probation.” If Nievera committed any offense during that year,
the assault charges “would then proceed.” Otherwise, the
charges would be dismissed. Pursuant to this agreement, the
assault charge against Nievera was later dismissed. RT 797,
1055-57, 1090-92.

4. Respondents Sue for $1 Million in Damages

On July 13, 1990, twenty-five Respondents sued eleven
defendants, including Sereno. The Complaint stated ten claims
under the federal civil rights laws, and one for emotional dis-
tress, based on allegations that defendants “illegally evict{ed]
them from the Mariposa County Lake McSwain Recreation
Area . . . on the basis of race.” The Complaint claimed that the
defendants unlawfully denied Respondents access to public
accommodation on account of their race, deprived them of equa!

6

protection and of substantive due process, conspired to deny
their civil nghts, and intimidated them by threat of violence
because of their race. The Complaint sought injunctive relict
and damages of $1 million. ER 1-14, RT 7.2

The Eleventh Cause of Action the only claim still at
issue — alleged that defendants (ER 14):

unlawfully retaliated against Plaintiff Jaime Nievera

for protesting their demand that Plaintiffs im

mediately leave the Lake McSwain Recreational Area

by arresting him and causing him to be falsely charged

with an assault upon Defendant Sereno in violation of

the tree speech provisions of the First and Fourteenth

Amendments and 42 United States Code Section

1983.

The Complaint elsewhere described this claim as based upon the
“malicious[] prosecut{1on] of [Nievera] on a totally unfounded
charge of assault and battery, which was subsequently dis-
missed.” Nievera sought damages for “legal fees and costs and
los{t] ume trom work” to defend against the assault charges. ER
2, 8.

5. The District Court Wholly Fails to Instruct the
Jury on the Eleventh Cause of Action

Following eight days of trial, the district court instructed
the jury. Although the instructions quoted from 42 U.S.C. §
1983 and explained the statute’s general purpose, RT 1596-97,°
they never identified the elements of the Eleventh Cause of
Action that Sereno “unlawfully retaliated’ against Nievera’s
exercise of First Amendment nights.

J
-

Citations to “ER” herein are page references in Sereno’s Excerpts of
Record filed in the court of appeals.
3

The text of these jury instructions is set out at Pet. App. E, at 39a, infra.

7

Indeed, the one instruction concerning the “Essential Ele-
ments of Plaintiffs’ § 1983 Claim” (ER 67) addressed the Fourth
Cause of Action, a due process claim that six defendants unlaw-
fully “interfered with plaintiffs’ liberty interests” “by wrong-
fully evicting plaintiffs from Lake McSwain.” ET 10, RT
1597-99.4 That instruction did not apply to Nievera’s retaliation
claim. Whatever the reason for the absence of instructions on
the retaliation claim, Sereno raised no timely objection to the
omission.

6. All Defendants Prevail on Every Claim, Except
Nievera’s Retaliation Claim Against Sereno

Except for Nievera’s retaliation claim against Sereno, de-
fendants prevailed on every claim submitted to the jury. Pet.
App. B, at 7a-8a, infra. On a special verdict form, the jury found
that Sereno (ER 134-36):

[djid.. . wrongfully retaliate against Jaime Nievera
for verbally protesting the alleged interference with
plaintiffs’ liberty interests and/or their eviction from
Lake McSwain by filing a criminal incident report or
seeking Criminal charges against Mr. Nievera.

The jury also found, on the special verdict form, that “such
conduct [was] a legal cause in bringing about harm or injury to
the plaintiff.” Jd. >

The jury awarded Nievera $4,500 in compensatory dam-
ages, but denied him punitive damages. This judgment was
multiplied more than twenty-five times by an award of
$108,334.50 in attorneys fees, plus ten percent interest from
January |, 1991, and costs of $6,463.69. ER 219.

4

infra.

5

The text of this jury instruction is set out at Pet. App. E, at 39a-40a,

The district court had instructed the jury that a “legal cause of injury
or harm is a Cause which is a substantial factor in bringing about the injury
or harm.” RT 1599.

8

Respondents and Sereno each moved for judgment not-
withstanding the verdicts and for a new tnal. Sereno asserted
that Nievera failed to adduce any evidence at trial that Sereno
retaliated against Nievera “because of” his speech. Sereno also
argued that the jury could not have found that he caused assault
charges to be tiled against Nievera because “the decision to
bring charges . . . is solely vested in the District Attorney.” ER
144-45. The district court denied the motions and entered
judgment. Sereno noticed a timely appeal, and Respondents
cross-appealed.

7. The Ninth Circuit: No “Plain Error” Review

On appeal, Sereno contended that the failure to instruct the
jury on Nievera’s retaliation claim was “plain error” and that the
absence of such instructions was so prejudicial as to require
reversal. Sereno further urged that plain error review of civil
jury instructions 1s necessary to ensure fair trials and to prevent
injustice. The Ninth Circuit refused to consider Sereno’ s asser-
tion of plain error, however, holding that (Pet. App. A. at 2a,
infra):

“This court has enjoyed a reputation as the strictest

enforcer of [Fed. R. Civ. P.] 51; we have declared that

there is no ‘plain error’ exception in civil cases in this
circuit.” Hammer v. Gross, 932 F.2d 842, 847 (9th

Cir.) (en banc) (plurality), cert. denied, ___ U.S. __,

112 S. Ct. 582, 116 L. Ed. 2d 607 (1991).

Sereno also argued on appeal that Nievera failed to prove
that his conduct was the legal cause of Nievera’s alleged injury,
i.e., the district attorney’s filing of assault charges against
Nievera. The court of appeals failed to address this claim, and
chided Sereno for supposedly miscasting Nievera’s retaliation
Claim as a claim for malicious prosecution (Pet. App. A. at 3a,

infra):

9

Nievera was required to show only that Sereno in
tended to hassle Nievera as punishment for exercising
his first amendment rights

The court of appeals further found that “the jury could have
concluded that Sereno filed a false report to punish and to
retaliate against Nievera for protesting the eviction.” /d

REASONS FOR ALLOWING THE WRIT

In awarding damages on the Eleventh Cause of Action, the
jury acted without any instructions from the court as to the legal
elements of that claim. Although this total failure to instruct the
jury was highly prejudicial to Sereno, the Ninth Circuit refused
to address the error because trial counsel had not objected to the
instructions as required by Fed. R. Civ. P. 51. In so doing, the
Ninth Circuit reinforced the reputation it “has enjoyed” of
recognizing no “plain error” exception to Rule 5]

The Ninth Circuit’s refusal to recognize a plain error
exception in civil cases conflicts with every other Circuit. A
plain error exception preserves fundamental fairness and pre-
vents injustice, as this Court recognized in dicta in City of
Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981). This
Court should resolve this conflict among the Circuits.

In addition, the court of appeals wrongly refused to recog-
nize that proximate cause is an essential element of a retaliation
claim under 42 U.S.C. § 1983. The district attorney’s indepen-
dent decision to prosecute Nievera for assault broke any causal
link between Nievera’s alleged injury and Sereno’s conduct.
Given the strong interest in protecting reports of potential crimes
to prosecutorial authorities, this Court should review the role of
proximate cause in § 1983 litigation. This Court has never
addressed this important question.

10

I. THE NINTH CIRCUIT STANDS ALONE IN
DENYING PLAIN ERROR REVIEW OF CIVIL
JURY INSTRUCTIONS WHEN JUSTICE
REQUIRES

Federal Rule of Civil Procedure 51 states that “no party
may assign as error the giving or the failure to give an instruction
unless that party objects thereto before the jury retires to con-
sider its verdict. .. ."” Notwithstanding this passage, every court
of appeals other than the Ninth Circuit either has held or as-
sumed that the failure to object to a jury instruction does not
prevent reversal for plain error in a civil case when justice
requires. See, e.g., Morris v. Travisono, 528 F.2d 856, 859 (ist
Cir. 1976) (recognizing authority to reverse for plain error, but
declining to do so); MacEdward v. Northern Elec. Co., 595 F.2d
105, 109-10 (2d Cir. 1979) (reversing for “fundamental” error);
Choy v. Bouchelle, 436 F.2d 319 (3d Cir. 1970) (reversing for
plainerror); Furka v. Great Lakes Dredge & Dock Co., 755 F.2d
1085, 1089 (4th Cir.) (same), cert. denied, 474 U.S. 846 (1985);
Rodrigue v. Dixilyn Corp., 620 F.2d 537, 541 (Sth Cir. 1980),
cert. denied, 449 U.S. 1113 (1981) (reversing for plain error);
Ivey v. Wilson, 832 F.2d 950, 955 (6th Cir. 1987) (reversing for
plain error); Shearson Hayden Stone, Inc. v. Leach, 583 F.2d
367, 370 (7th Cir. 1978) (recognizing “the power to reverse for
plain error in an instruction” but declining to do so); Beckman
v. Mayo Foundation, 804 F.2d 435, 438 (8th Cir. 1986) (review-
ing jury instructions for plain error but finding none); Ryder v.
City of Topeka, 814 F.2d 1412, 1428 (10th Cir. 1987) (recog-
nizing that plain error would warrant reversal, but finding none);
Pate v. Seaboard R.R., 819 F.2d 1074, 1082-83 (11th Cir. 1987)
(reversing for plain error); Montgomery v. Virginia Stage Lines,
Inc., 191 F.2d 770, 774 (D.C. Cir. 1951) (reversing, despite
absence of objection at trial, on alternative ground that trial court
improperly instructed jury); Lummus Indus., Inc. v. D.M.&E.
Corp., 862 F.2d 267, 270 (Fed. Cir. 1988) (following Fourth
Circuit's recognition of plain error exception). But see McGoni-

1]

gle v. Combs, 968 F.2d 810, 823 (9th Cir. 1992); Hammer v.
Gross, 932 F.2d 842, 847-48 (9th Cir.) (en banc) (plurality), cert.
denied, 112 S. Ct. 582 (1991).

As Professors Wright and Miller have observed, “[T]he
Ninth Circuit stands alone in reading Civil Rule 51 literally and
denying that there is any power to reverse for plain error an
unobjected-to instruction in a civil case.” 9 Wright & Miller,
Federal Practice and Procedure, § 2558, at 674 (1971). The
Ninth Circuit here refused to consider Sereno’s contention that
the total failure to instruct the jury on the legal elements of
Nievera’s retaliation claim was plain error, despite a strong
showing of prejudice. This Court should resolve this conflict
among the Circuits. See Sup. Ct. R. 10.1(a).

Indeed, this Court has assumed that civil jury instructions
may be reviewed for plain error even without a timely objection.
In City of Newport, supra, the petitioner sought review of a
punitive damages award even though it had failed to object to
the punitive damages instruction. Neither the district court, the
court of appeals, nor this Court found that the lack of objection
precluded review. This Court stated that the “plain error’
exception to Rule 51 “is invoked on occasion by the Courts of .
Appeals absent timely objection in the trial court.” 453 U.S. at
256. Indeed, the Court tacitly approved this practice, observing
that (id.):

“Plain error’ review under Rule 51 is suited to cor-
recting obvious instances of injustice or misapplied
law.

Despite this endorsement, City of Newport did not rely on
the “plain error” exception to review the punitive damages
award. Rather, the Court relied upon its even broader authority
to review a question that has been fully briefed and decided
below. /d., at 257. Citing its own plain error rule, now Sup. Ct.
R. 24.1(a), and 28 U.S.C. § 2106, the Court held that “the interest
of justice warrants our plenary consideration.” /Jd., at 257, nn.

12

15, 16. In so doing, the Court “express[ed] no view regarding
the application of the plain-error doctrine by the Courts of
Appeals.” /d., at 257, n.16.°

This case thus squarely presents the issue, left open in City
of Newport, whether Rule 51 permits a “plain error’ exception.

The principal reasons for a “plain error” exception to Rule
51 are well established (Hormel v. Helvering, 312 U.S. 552, 557
(1941)):

Rules of practice and procedure are devised to pro-
mote the ends of justice, not to defeat them. A rigid
and undeviating judicially declared practice under
which courts of review would invariably and under all
circumstances decline to consider all questions which
had not previously been specifically urged would be
out of harmony with this policy. Orderly rules of
procedure do not require sacrifice of the rules of
fundamental justice.

See Surowitz v. Hilton Hotels Corp., 383 U.S. 363, 373 (1966)
(rules were “written to further, not defeat the ends of justice’).

The contemporaneous objection requirement in Rule 51
serves important interests in efficient and expeditious resolution
of cases. But when a party’s night to a fair trial is at risk,
appellate courts have both the “power and duty” to correct the
error, even in the absence of a timely objection. New York
Central R.R.. v. Johnson, 279 U.S. 310, 318-19 (1929) (revers-
ing despite absence of exception at trial). Core principles of
fairness, embodied in the Due Process Clause of the Fifth

6

The dissenters in City of Newport acknowledged that, “like other
procedural rules, Rule 51 is susceptible to flexible interpretation when strictly
necessary to avoid a clear miscarriage of justice.” 453 U.S. at 274-75
(Brennan, J., joined by Marshall and Stevens, JJ., dissenting). The dissenters
joined, however, “in leaving open the issue of the scope of exceptions to Rule
51, if any, to another day.” /d., at 275, n.4.

13

Amendment, support a plain error exception. See Lassiter v.
Department of Social Services, 452 U.S. 18, 24, 33 (1981) (due
process requires that “judicial proceedings [be] fundamentally
j fair’).

Federal Rule of Civil Procedure 1 recognizes this constitu-
tional requirement of fairness, providing that the Rules “shall be
construed to secure the just, speedy, and inexpensive determi-
nation of every action” (emphasis added).’ This first canon of
: construction strongly favors a “plain error’ exception to Rule
51. See MacEdward, supra, 595 F.2d at 110 (relying in part

upon Rule 1). Rule 1 “fosters the principle that the outcome of
cases should turn on their merits rather than on technical issues
of pleading and procedure.” 2 Moore's Federal Practice, §
1.13[1] (2d ed. 1993) (citing In re Coles, 1 K.B. 1, 4 (1907)
(rules of practice are intended to be “handmaid rather than
mistress” of justice)). See also Foman v. Davis, 371 U.S. 178,
181-82 (1962) (based upon Rule 1, reversing dismissal of appeal
for defective notice).

ae ee

Moreover, “[f]ew more fundamental errors with respect to
a Charge can be conceived” than submitting a claim to the jury
“with what was tantamount to no instructions at all.” McNello
v. John B. Kelly, Inc., 283 F.2d 96, 102 (3d Cir. 1960).* The
failure to charge any of the elements of Nievera’s retaliation

7 See also 28 U.S.C. § 2106 (any “court of appellate jurisdiction may . .
. Set aside or reverse any judgment . . . brought before it for review, . . . or
require such further proceedings to be had as may be just under the circum-
stances”).

8 Accord MacEdward, 595 F.2d at 110 (“it is ‘fundamental’ that the
charge cover the basic elements of an asserted claim or defense when, as here,
the facts are in dispute”); Stewart v. Hali, 770 F.2d 1267, 1270-71 (4th Cir.
1985) (plain error in failing to charge jury concerning proximate cause
element of tort claim). Cf. Screws v. United States, 325 U.S. 91, 107 (1945)
(in civil rights prosecution, right to fair trial necessitated review “where the
‘ error [was] so fundamental as not to submit to the jury the essential ingredi-
ents of the only offense on which the conviction could rest”).

ek RE AiO ek ete ae Cm

14

claim resulted in a miscarriage of jusuce. Without instruction
on the elements of that claim, the jury was left to guess at liability
and was given unbridled discretion to award damages.

For example, the jury was given no guidance concerning
causation under 42 U.S.C. § 1983, the central factual question
in the case. The special verdict form asked whether Sereno’s
report was a “wrongful” retaliation for Nievera’s verbal protest,
and whether Sereno’s conduct was the “legal cause” of
Nievera’s injury. But how was the jury to distinguish a report
submitted as a “wrongful” retaliation from a report submitted
from mixed motives of personal resentment and official duty”
See Mt. Healthy City Sch. Dist. Bd. of Ed. v. Doyle, 429 U.S.
274, 285-87 (1977) (causation not established solely by proot
that protected conduct was “motivating factor’). And how,
without proper instructions, was the jury to decide whether the
district attorney's decision to charge Nievera with assault broke
the chain of causation for purposes of his § 1983 claim?

In the end, the jury was left to figure out the elements of
Nievera’s retaliation claim. That error was sufficiently plain,
and sufficiently prejudicial, to compel appellate review.

Il. A SECTION 1983 PLAINTIFF MUST SHOW
THAT THE DEFENDANT PROXIMATELY
CAUSED THE CONSTITUTIONAL INJURY

A proximate cause requirement is a necessary element of
Nievera’s retaliation claim. Any causal link between Nievera’s
injury and Sereno’s conduct necessarily was severed by the
district attorney's independent decision to prosecute Nievera.
This Court has never addressed whether proximate cause is an
element of a claim under § 1983. Application of the proximate
Cause requirement will ensure that public employees can report
criminal activity without fear of unwarranted liability under
§ 1983.

15

General tort principles apply to § 1983 claims. E.¢., Mem-
phis Community Sch. Dist. v. Stachura, 477 U.S. 299, 306
(1986) (§ 1983 damages “ordinarily are determined according
to principles derived from the common law of torts”); Carey v.
Piphus, 435 U.S. 247, 257-58 (1978) (tort principles are the
“starting point for inquiry under § 1983”); Jmbler v. Pachtman,
424 U.S. 409, 418 (1976) (Ҥ 1983 is to be read in harmony with
general principles of tort immunities and defenses’’); Pierson v.
Ray, 386 U.S. 547, 556-57 (1967). For example, Carey recog-
nized that § 1983 damages for an injury cannot be awarded
“without proof that such injury actually was caused” by the
defendant's denial of the plaintiff’s rights. 435 U.S. at 264. See
also Mt. Healthy, 429 U.S. at 286 (noting that Court has formu-
lated tests of causation “which [distinguish] between a result
caused by a constitutional violation and one not so caused’”’).

Several courts have held that a § 1983 plaintiff must prove
that the defendant’s conduct was the proximate cause of
plainuff’s injury. Margoles v. Tormey, 643 F.2d 1292, 1293
(7th Cir.), cert. denied, 452 U.S. 939 (1981) (injury not proxi-
mately caused by provision of false information to licensing
board because board made independent decision); Hand v.
Gary, 838 F.2d 1420, 1427-28 (Sth Cir. 1988) (causal chain
broken in actions for false arrest and malicious prosecution,
because grand jury and prosecutor acted independently);
McLaughlin v. Alban, 775 F.2d 389, 391 (D.C. Cir. 1985) (“the
element of proximate causation” is “necessary to establish the
constitutional tort under § 1983’’); Ames v. United States, 600
F.2d 183, 185 (8th Cir. 1979) (grand jury indictment broke any
chain of causation linking FBI investigators to institution of
Criminal proceedings).?

° Even the Ninth Circuit held, in previous cases, that proximate cause is

essential to a section 1983 claim. Arnold v. International Business Machines,
637 F.2d 1350, 1355 (9th Cir. 1981); Smiddy v. Varney, 803 F.2d 1469,
1472-73 (9th Cir. 1986), opinion modified, 811 F.2d 504 (9th Cir. 1987).

16

Proximate cause principles protect the ability of public
employees to report incidents to prosecutors or other decision-
makers. As stated in Grove School v. Guardianship and Advo-
cacy Comm'n, 596 F. Supp. 1361, 1368-69 (N.D. Ill. 1984):

{[S]o long as the decision maker is in a position to
evaluate such derogatory information independently
and to reject it if it lacks credibility, the information
supplier cannot be held legally responsible for the
resulting decision.

The Ninth Circuit held here that “the jury could have
concluded that Sereno filed a false report to punish and to
retaliate”; but the court of appeals never considered the uncon-
troverted evidence that the prosecutor made an independent
investigation and decision that broke the causal chain. Pet. App.
A, at 3a, infra. Without evidence that the prosecutor did not
make an independent decision to charge Nievera, Nievera failed
to prove that he suffered any constitutional injury from Sereno’s
report.

Although several courts of appeals have agreed that a finding of proximate
cause must be made, their approaches have varied in determining when the
causal link is broken by an intervening decision by another official to punish
or prosecute. The importance of clarifying this issue was noted in Smith v.
Gonzales, 459 U.S. 1005 (1982) (White, J., dissenting from denial of certio-
rari).

17

CONCLUSION

For all of the ioregoing reasons, this Court should issue a
writ of certiorari to the United States Court of Appeals for the
Ninth Circuit to review the questions raised in this petition.

Respectfully submitted,

E. ELIZABETH SUMMERS DAVID OVERLOCK STEWART

LAW OFFICES OF (Counsel of Record)

E. ELIZABETH SUMMERS RAYMOND C. ORTMAN, JR.
1300 Clay Street ELLEN P. DELSOLE

Suite 600 ROPES & GRAY

Oakland, CA 94612 1001 Pennsylvania Avenue, N.W.
(510) 531-3106 Suite 1200 South

Washington, D.C. 20004
(202) 626-3900

Attorneys for Petitioner

Date: January 18, 1994

la
APPENDIX A

FILED OCTOBER 5, 1993
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

EDUARDO PACUMIO; NENITA PACUMIO, et al..
Plaintiffs-Appellees-Cross-Appellants,

Pp

VINCENT SERENO, et al.,
Defendant-Appellant-Cross-Appellee,

ROGER HOGAN, JOEL BIBBY, FRED PAIGE,
Cross-Appellees.

No. 92-15287, 92-15290
D.C. No. CV-90-00452-OWW

MEMORANDUM’

Appeal from the United States District Court
for the Eastern District of California
Oliver W. Wanger, District Judge, Presiding

Argued and Submitted May 12, 1993
San Francisco, California

Before: POOLE, FERGUSON, and FERNANDEZ. Circuit
Judges.
Vincent Sereno, a park ranger for the Merced Irrigation

District (MID), appeals the jury’s verdict in favor of Jaime
Nievera on Nievera’s claim that Sereno violated his first amend-

* This disposition is not appropriate for publication and may not be cited
to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.

2a

ment rights by filing a report claiming that Nievera assaulted
him (No. 92-15290). The 25 plaintiffs,' members of seven
Filipino families, cross-appeal the district court’s denial of their
motion for judgment notwithstanding the verdict (JNOV)
(No. 92-15287). The plaintiffs claim that the defendants vio-
lated their substantive due process rights by requiring them to
leave a MID campground without good cause. We have juris-
diction under 28 U.S.C. § 1291 and affirm.

A. Sereno Appeal

Sereno argues that the district court erred by failing to
instruct the jury on what he characterizes as Nievera’s section
1983 malicious prosecution claim. He contends that he was
denied a fair trial because the jury was never directed to examine
the elements of a malicious prosecution claim. Moreover, aside
from the lack of jury instructions, Sereno argues that the evi-
dence cannot support liability against him because Nievera did
not, in effect, show malicious prosecution.

1. Jury Instructions

The federal rules instruct that “[n]o party may assign as
error the giving or the failure to give a[] [jury] instruction unless
that party objects thereto before the jury retires to consider its
verdict, stating distinctly the matter objected to and the grounds
of the objection.” Fed. R. Civ. P. 51. “This court has enjoyed
a reputation as the strictest enforcer of Rule 51; we have de-
clared that there is no ‘plain error’ exception in civil cases in this
circuit.”” Hammer v. Gross, 932 F.2d 842, 847 (9th Cir.) (en
banc) (plurality), cert. denied, __ U.S.___, 112 S. Ct. 582,
116 L. Ed. 2d 607 (1991). “A Plain error exception to Rule 51
lacks the authorization that Criminal Rule 52(b) confers in

For simplicity, the 25 plaintiffs/cross-appellees will be referred to as
simply the “plainuffs.” Similarly, the rangers and sheriffs will be called
“defendants.”

3a

criminal cases.” Jd. at 848; see also Elder v. Holloway, 975 F.2d
1388, 1395 (9th Cir. 1991).

Here, Sereno admittedly failed to raise any objection to the
jury instructions before the district court. Sereno’s failure to
object to the instructions precludes him from challenging them
on appeal. See Hammer, 932 F.2d at 848. There is no plain
error exception. See id.

2. Sufficient Evidence

Sereno Claims that he is entitled to judgment as a matter of
law because Nievera failed to establish a section 1983 claim for
malicious prosecution. Sereno’s arguments are plausible only
if Nievera asserted a section 1983 claim based on malicious
prosecution. Nievera states that his claim is and has always been
for unlawful retaliation against the exercise of his first amend-
ment rights. We agree.

Plaintiffs’ complaint and trial brief clearly set forth retali-
ation claims. Throughout the entire proceeding, Nievera’s
claim was construed as one for retaliation. Sereno’s motion for
directed verdict did not claim that Nievera failed to establish the
elements constituting a malicious prosecution claim. Rather,
Sereno stated that directed verdict was warranted because the
evidence failed to show that he acted to punish the plaintiffs for
exercising their constitutional rights. As such, Nievera was
required to show only that Sereno intended hassle Nievera as
punishment for exercising his first amendment rights. See
Duran v. City of Douglas, 904 F.2d 1372, 1378 (9th Cir. 1990).
Viewing the evidence in the light most favorable to Nievera, see
Jackson v. Gates, 975 F.2d 648, 655-56 (9th Cir. 1992), petition
for cert. filed, 61 U.S.L.W. 3732 (U.S. Apr. 5, 1993) (No. 92-
1645), the jury could have concluded that Sereno filed a false
report to punish and to retaliate against Nievera for protesting
the eviction.

4a

B. Plaintiffs Appeal

In their cross-appeal, the plaintiffs contend that the district
court erred by failing to grant their motion for JNOV on the
substantive due process claim. They argue that the defendants
violated their due process rights by evicting them from the
campsite without good cause. Plaintiffs also argue that the
district court erred by granting qualified immunity to the she-
riffs.

“The district court’s decision to grant or deny judgment
notwithstanding the verdict is reviewed de novo. ... Denial of
such a motion is appropriate if the evidence and its inferences,
considered as a whole, and viewed in the light most favorable
to the non-moving party, cannot reasonably support a judgment
in favor of the moving party.” Jackson, 975 F.2d at 655-56
(citation omitted). “Neither the trial judge nor this court is
permitted to weigh the evidence or substitute its judgment for
that of the jury, provided the jury verdict is supported by
substantial evidence.” The Jeanery, Inc. v. James Jeans, Inc.,
849 F.2d 1148, 1151 (9th Cir. 1988).

“To support a claimed violation of an individual’s substan-
tive due process rights, we have stated that the [defendant’s]
conduct must be clearly arbitrary and unreasonable, having no
substantial relation to the public health, safety, morals, or gen-
eral welfare.” Jackson, 975 F.2d at 657 (internal quotation
omitted); see Federal Deposit Ins. Corp. v. Henderson, 940 F.2d
465, 474 (9th Cir. 1991).

1. Rangers Sereno, Selover, and Lee

Viewing the evidence in the light most favorable to the
rangers, a rational jury could have concluded that, as a group,
the plainuffs were rowdy, not inclined to foliow the rules,
inclined to break agreements with the rangers, a general nui-
sance to other people who had the right to enjoy the camp, and
likely to become more difficult to control as the day wore on.

ee rod

Sa

The jury could reasonably have gone on to decide that the
rangers acted to preserve the safety and peace of the park, and
did not arbitrarily and unreasonably evict plaintiffs in violation
of their due process rights. See Jackson, 975 F.2d at 656. Thus,
the district court did not err by denying plaintiffs’ JNOV motion.

2. Sheriff Deputies Bibby, Hogan, and Paige

“Government officials performing discretionary functions
enjoy qualified immunity from civil damages so long as their
conduct does not violate clearly established statutory or consti-
tutional rights of which a reasonable person would have
known.” Barker v. Racansky, 887 F.2d 183, 185-86 (9th Cir.
1989) (internal quotation omitted). ‘Therefore, regardless of
whether the constitutional violation occurred, the officer should
prevail if the night asserted by the plaintiff was not ‘clearly
established’ or the officer could have reasonably believed that
his particular conduct was lawful.” Romero v. Kitsap County,
931 F.2d 624, 627 (9th Cir. 1991); cf. Act Up!/Portland v.
Bagley, 988 F.2d 868, 871 (9th Cir. 1993). In determining
whether an officer acted reasonably, the court should consider
the facts and circumstances within the officer’s knowledge at
the time of the alleged constitutional violation. Hunter v. Bry-
ant,___U.S.___,__, 112 S. Ct. 534, 537, 116 L. Ed. 2d 589
(1991) (per curiam). “The qualified immunity standard gives
ample room for mistaken judgments.” /d. (internal quotation
omitted).

Here, the sheriffs acted based upon their personal observa-
uons and the information provided by the rangers. They reason-
ably believed that the eviction was lawful because plaintiffs
were disruptive and a threat to park safety. The jury agreed with
them in that respect. Thus, at the very least, the sheriffs were
entitled to immunity.?

2 Plaintiffs argue that the sheriffs waived their qualified immunity
defense by withdrawing the instruction from the jury and failing to reassert

6a

Plaintiffs’ request for attorney's fees incurred in defending
Sereno’s appeal is granted. The case is remanded for a determ1-
nation of the amount of the appellate fee award. See Ash v. Lake
Oswego Sch. Dist., 980 F.2d 585, 590 (9th Cir. 1992).

AFFIRMED and REMANDED

it in their response to plainuffs’ mouon for JNOV. We disagree. The
qualified ummunity instruction was withdrawn from the jury because it was
one of law. See Act Up!/Portland, 988 F.2d at 873. Moreover, given the
jury's verdict, the sheriffs did not need to assert immunity in opposition to
plainuffs’s JNOV mouon. Waiver is made of stronger stuff.

Ta
APPENDIX B

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

EDUARDO PACUMIO, et al.
VS.

VINCENT SERENO, et al.

JUDGMENT IN A CIVIL ACTION
CV F-90-452-OWW

The plaintiffs’ First claim for injunctive relief for violation of
42 U.S.C. Section 2000a is not triable by a jury and was heard
and hereby considered by the Court. For the reasons stated in
Open Court as an oral statement of decision the Court finds in
favor of all defendants and against all plaintiffs as to this cause
of action. Defendants’ counsel shall prepare and submit within
five days, Findings of Fact and Conclusions of Law in accor-
dance with the oral statement of decision.

All other claims are triable before a jury, and said jury having
rendered its verdict Judgment is entered as follows:

Second Claim: 42 U.S.C. Section 1981 Claim

Judgment is entered in favor of all defendants and against all
plainuffs.
Third and Fourth Claims: 42 U.S.C. Section 1983 Claims

Judgment is entered in favor of all defendants and against all
plainuffs.

Fifth Claim: 42 U.S.C. Section 1985(3) Claim

Judgment is entered in favor or all defendants and against all
plainuffs.

Sa

Sixth Claim: 42 U.S.C. Section 1986 Claim

Judgment is entered in favor of all defendants and against all
plainuffs.

Seventh and Eighth Claims: California Civil Code Sections 51,
57.7 and 52(A) Claims (Unruh Act)

Judgment is entered in favor or all defendants and against all
plainutts.

Eleventh Claim: Ist Amendment U. S. Constituuonal Claim:
Retaliation

Judgment is entered in favor of plainuff JAIME NIEVERA and
against defendant VINCENT SERENO, damages are awarded
said plaintiff in the amount of $4,500.

As to defendant Roger Hogan, Judgment is entered in favor of
Said defendant and against plaint'ff Jaime Nievera.

Plaintiffs’ motions to dismiss defendants County of Mariposa
and Merced Irrigation District as to all claims, were granted.

Defendants’ motions for directed verdict as to the plaintiffs’
Ninth and Tenth Claims for emotional distress and for 42 U.S.C.
1983 based on a failure to adequately supervise individual
defendants with prior knowledge of discriminatory attitudes and
practices thereby maintaining a policy or practice or condoning
or ratifying the denial of equal protection of the law in violation
of the Fourteenth Amendment, were granted in favor of all
defendants and against all plaintiffs.

Prevailing parties shall recover costs in accordance with law.
Date: November 12, 1991

JACK L. WAGNER, Clerk
By

Deputy Clerk

Va

United States District Court
for the
Eastern District of California
November 12, 1991

* * CERTIFICATE OF SERVICE * *
Entry on Civil Docket

1 :90-cv-0G452
Pacumio
Vv

Mariposa County

I, the undersigned, hereby certify that I am an employee in the
Office of the Clerk, U.S. District Court, Eastern District of
California.

That on November 12, 1991, I SERVED and ENTERED on the
civil docket a true and correct copy(ies) of the attached, by
placing said copy(ies) in a postage paid envelope addressed to
the person(s) listed below, by depositing said envelope in the
U.S. Mail; or by placing said copy(ies) into an inter-office
delivery receptacle located in the office of the Clerk.

Peter Graham Cohn

Peter G Cohn Law Offices
315 Keokuk Street
Petaluma, CA 94952

Howard Moore Jr

Moore and Moore

445 Bellevue

3rd Floor

Oakland, CA 94610-4924

1Oa

Michael Lowell Mason

Flanagan Mason Robbins Gnass and Corman
P O Box 2067

720 W 20th Street

Merced, CA 95340-0067

Steven Wayne Dahlem

Walton Dahlem and Starchman

P O Box 1907

Mariposa, CA 95338

Jack L. Wagner, Clerk

By:
Deputy Clerk

lla
APPENDIX C

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

EDUARDO PACUMIO.-, et al.,
Plaintiffs,
v.
VINCENT SERENO, et al.,
Defendants.

CV F-90-452-OWW

MEMORANDUM OPINION AND ORDERS
RE PLAINTIFFS’ MOTIONS FOR
JUDGMENT NOV OR FOR NEW TRIAL
OR TO ALTER OR AMEND JUDGMENT
AND DEFENDANT VINCENT SERENO’S
MOTION FOR JNOV OR FOR NEW TRIAL

The motion of all plaintiffs for judgment notwithstanding
the verdict or for new trial or to alter or amend judgment and of
Vincent Sereno for judgment notwithstanding the verdict or for
new trial came on for hearing January 3, 1992, in Department 2
of this Court. Plaintiffs were represented by their counsel
Howard Moore, Jr., and Peter G. Cohen, Esq. Defendants
Vincent Sereno, Reid Selover and Eddie Lee were represented
by Flanagan, Mason, Robbins, Gnass & Corman by Michael
Mason, Esq. Defendants Fred Paige, Joel Bibby and Roger
Hogan were represented by Waltham & Dahlem by Stephen
Dahlem, Esq.

On December 17, 1991, the jury returned verdicts against
all 25 plaintiffs on ten of their claims. The jury found that
plainuff Jaime Nievera had been wrongfully deprived of his

i

12a

First Amendment night to protest the basis for plaintiffs eviction
from Lake McSwain Recreation Area by his subsequent arrest.
The jury awarded $4,500.00 damages.

Legal Standards
Judgment Notwithstanding The Verdict

Federal Rule of Civil Procedure Rule 50(b) permits a
judgment notwithstanding the verdict to be granted where,
without weighing the credibility of the evidence, there can be
only one reasonable conclusion as to the proper judgment.
Hallmark Industry v. Reynolds Metals Co., 489 F.2d 8 (9th Cir.
1974). The operative question is whether there is evidence upon
which the jury could properly find a verdict for the non-moving
party. 9 Wright & Miller, Federal Practice and Procedure,
§2524, P. 543. P

A motion for directed verdict and the motion for judgment
notwithstanding the verdict involve only the question of the
legal sufficiency of the evidence. On the other hand, a motion
for new trial is made on the ground the verdict is against the
weight of the evidence and is addressed to the sound discretion
of the Court. If the verdict is contrary to the preponderance of
the evidence, the Court may set it aside and order a new trial,
although a directed verdict is not justified. Moore’s Federal
Practice, 1990 Rules Pamphlet, Part 1, par. 50.10 at 459.

In ruling on a motion for judgment notwithstanding the
verdict, the Court must view the evidence in the light most
favorable to the non-moving party. 9 Wright and Miller, Federal
Practice & Procedure §2524, p. 543-544. The standard for
granting judgment notwithstanding the verdict is precisely the
same as the standard for directing a verdict. Jd. §2537, at p. 599.
The Court does not weigh the evidence and must draw all factual
inferences in favor of the non-moving party. Lytle v. Household
Mfg., Inc., 494 U.S. 545-554, 110 S. Ct. 1331, 1338 (1990).

l3a

Simply stated, the test is: “Without weighing the credibil-
ity of witnesses or otherwise considering the weight of the
evidence, there can be but one conclusion as to the verdict that
reasonable men could have reached.” Fed. Prac. & Proc.,
supra, §2524, pp. 545-546.

Motion For New Trial

A motion for new trial is authorized under Federal Rule of
Civil Procedure Rule 59(a). On a motion for new trial, the Court
may consider the credibility of witnesses and the weight of
evidence, which it may not do in considering a motion for
judgment notwithstanding the verdict. Fed. Prac. & Proc..
supra, §2531, p. 575.

The general grounds for a new trial are that the verdict is
against the weight of the evidence, that the damages are exces-
sive, or that for other reasons, the trial was not fair. The motion
may also raise questions of law rather than substantial errors and
omissions or rejection of evidence, or the giving or refusal of
instructions. Fed. Prac. & Proc., supra, §2805, p. 37.

A motion to alter or amend judgment under Rule 59(e) must
rely on one of three major grounds: (1) an intervening change
in controlling law; (2) availability of new evidence; and (3) the
need to correct clear error of law or prevent manifest injustice.
Natural Resources Defense Counsel, Inc. v. U.S. Environmental
Protection Agency, 705 F.Supp. 698, 702 (D. D.C. 1989). Rule
59(e) motions are not vehicles for bringing before the court
theories or argument that were not advanced earlier. Jd. at 701.
Nor may the motion present evidence which was available but
not offered at the orginal trial. /bid., at 702.

None of the parties have claimed that there is any error in
the jury instructions nor in the admission or rejection of evidence
at trial. The parties’ motions are based on the sufficiency and
the legal consequences of the evidence.

l4a

The motions in this case are timely. On November 12,
1991, judgment was entered on the jury’s verdict. On Novem-
ber 22, 1991, plaintiffs filed their motions. Landis Constr. Co.
v. Royal Bank of Canada, 833 F.2d 1365, 1370-71 (9th Cir.
1987). Defendant’s motions were filed November 22, 1991.

Plaintiffs’ Motions

The Court will not here repeat all of the grounds raised and
extensive oral arguments in support of the motions made by
plaintiffs. The essential claim of plaintiffs is that each of them
was, by the evidence, entitled to recover for a violation of the
infringement of their civil rights under the due process clause of
the Fourteenth Amendment, which prohibits state action which
deprives any person of life, liberty or property without due
process of law. Substantive due process is denied by arbitrary
governmental action. Smith v. City of Fontana, 818 F.2d 1411,
1415 (9th Cir. 1987). Substantive due process protects any
person from oppressive and intrusive governmental action.
Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 665
(1986).

Plaintiffs’ motion are only as to the fourth claim. Each
plaintiff claimed a liberty interest in the occupancy of campsite
D-6 at the Lake McSwain Recreation-Area! on July 15, 1989.
42 U.S.C. §2000a, California Civ. Code §51. Plaintiffs’ fourth
claim asserts the intrusion of park rangers and defendant
Sheriff's Deputies onto their campsite to evict them was not
authorized by law and constituted a deprivation of substantive
due process. Cohen v. Norris, 300 F.2d 24, 31 (9th Cir. 1962).

During the evening of July 14, 1989, plaintiffs rented two
overnight campsites at Lake McSwain, a place of public accom-
modation and a business establishment within the meaning of

, Lake McSwain is owned and operated by the Madera Irrigation District
(MID), the employer of defendant park rangers. Plaintiffs voluntarily dis-
missed MID during trial. They also dismissed all claims against Mariposa
County.

1Sa

California Civil Code §51. The parties agree that defendants
could not evict plaintiffs from the campsite (a place of public
accommodation or business establishment), unless good cause
existed.

The parties differ in their interpretation of the meaning of
“good cause” to justify eviction from a place of public accom-
modation. Plaintiffs argue that the California Supreme Court
definition of In Re Cox (1970) 3 Cal.3d 205, 213-214, 90
Cal.Rptr. 24; requires a showing that a member of the public has
committed an illegal act or an immoral act; otherwise, “the
proprietor has no right to exclude or reject a person ‘except for
good cause,’ and if he does so without good cause he is liable
in damages.” Stouman v. Reilly, (1951) 37 Cal.2d 713, 717.
“Good cause” necessarily implies that the decision should be
based on sufficient evidence and that the evictor should not act
arbitrarily. Id. at 717.

While emphasizing personal characteristics in finding ar-
bitrary discrimination, California cases have recognized that
legitimate business may justify limitations on consumer access
to public accommodations. Harris v. Capital Growth Investors
XIV (1991) 52 Cal.3d 1142, 1162, 278 Cal.Rptr. 614, citing Cox
at p. 717. A business establishment may establish reasonable
deportment regulations that are rationally related to the services
performed and the facilities provided. Harris, supra, at 1162
citing Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 95-96, 234
Cal.Rptr. 178.

To prove a deprivation of substantive due process under
plaintiffs’ fourth claim for relief it was not necessary to show
any racial animus. Bonano v. Thomas, 309 F.2d 320, 321 (9th
Cir. 1962). The parties stipulated that in evicting plaintiffs on
July 15, 1989, all defendants acted under color of state law.

To determine plaintiffs’ motions, the conduct of the
Sheriff's Deputy defendants must be analyzed separately from
that of the MID park ranger defendants.

16a

The Motions As To Defendants Bibby, Paige and Hogan

None of the parties have cited to the U.S. Supreme Court’s
recent decision in Hunter v. Bryant, 112 S.Ct. 534 (Dec. 16,
1991); 91 Daily Journal D.A.R. 15444. Hunter deals with the
issue Of qualified immunity. The U.S. Supreme Court strongly
criticized existing Ninth Circuit authority which would prevent
resolving immunity questions at the earliest possible stage in
litigation; i.e., “the question of immunity should not routinely
be placed in the hands of the jury, but rather decided by the Court
long before the trial.” 91 D.A.R. 15445; citing Mitchell v.
Forsyth, 472 U.S. 511, 527-529 (1985). The “true inquiry” is
whether the law enforcement agent “acted reasonably under
settled law in the circumstances,” not whether another reason-
able, or more reasonable, interpretation of the events can be
constructed five years after the fact. 91 D.A.R. 15445. Thus,
“probable cause” in the case of an arrest or more generally,
action by a law enforcement agent “in light of clearly established
law and the information the officers possessed;” Anderson v.
Creighton, 483 U.S. 635, 641 (1987) is to be tested “at the
moment the arrest was made .. .” /d. at 15445 citing Beck v.
Ohio, 379 U.S. 89, 91 (1964).

It is recognized that the qualified immunity standard “gives
ample room for mistaken judgments” by protecting “all but the
plainly incompetent or those who knowingly violate the law.”
Malley v. Briggs, 475 U.S. 335, 341 (1986) “This accommoda-
tion for reasonable error exists because ‘officials should not err
always on the side of caution’ because they fear being sued.”
Davis v. Scherer, 468 U.S. 183, 196 (1984). Qualified immunity
is available to police officers, who are “generally shielded from
liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional nights of
which a reasonable person would have known.” Harlow v.
Fitzgeraid, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d
896 (1982).

17a

Here, as amplified by Hunter, the inquiry is: “Did the
deputies’ conduct in evicting the plaintiffs at the request of
defendant park rangers violate clearly established statutory or
constitutional rights of which a reasonable law enforcement
person would have known on July 15, 1989, when they ordered
plaintiffs to leave McSwain Lake Recreation Area? The depu-
ties are to be judged by the facts and the circumstances known
to them at the time and the reasonableness of their belief in the
lawfulness of their actions in light of clearly established law
based on information they then possessed.

The parties agree that “good cause” was necessary to justify
plaintiffs’ eviction. Plaintiffs contend “good cause requires
performance of an unlawful or immoral act.” Stouman v.
Reilley, supra, 37 Cal.2d at 717. Lake McSwain was a place of
public accommodation where each plaintiff was protected by
“the same constitutional safeguards of equal protection and due
process as are restraints under the penal law.” In Re Cox, supra,
3 Cal.3d at 213-14; quoting Orloff v. Los Angeles Turf Club,
(1951) 36 Cal.App.2d 734, 739 (1970).

Deputy Paige arrived at plaintiffs’ campsite Saturday af-
ternoon around 3:45 p.m. as a double unit with Deputy Bibby.
The deputies had received a report of a verbal disturbance.
Upon arrival, Deputy Paige stayed back to observe “whether any
fight was going on.” Deputy Paige heard “something about a
bullhorn being used.” He heard nothing about an alleged as-
sault. He heard nothing about a disturbance the prior evening.
Deputy Paige’s state of mind was that he was told “either by
Deputy Hogan or Bibby — that there had been some disturbance
here and that MID was requesting the campers to leave.” Dep-
uty Paige observed campers that were very upset about leaving
and some were Starting to pack up. He heard no conversation
between any of the plaintiffs and the rangers or the other
deputies.

l&a

Deputy Paige had no direct interaction with any of the
plaintiffs. “The campers started yelling and screaming about
having to leave and the deputies would settle it down by explain-
ing to them that they would have to leave due to the fact that the
rangers want them to leave.”’ Deputy Paige did not observe any
problem at the scene.

Deputy Paige testified he was aware that the County of
Mariposa, through the Sheriff's Department, would provide
police protection and service to enforce State and Federal laws
and County rules and regulations at McSwain Lake Recreation
Area. Exhibit “I,” par. A 1216.015. Deputy Paige was aware
that plaintiffs complained they were being discriminated
against. He made no investigation of the plaintiffs’ complaints.
He accepted the Rangers’ and fellow deputies’ statements as
valid reasons and talked to no one but the Rangers. Deputy
Paige acted to restrain the liberty of plaintiffs to prevent them
from staying in the park. Deputy Paige testified that if the
plaintiffs refused to leave they would be arrested for failure to
obey a peace officer.

In fourteen years as a Deputy Sheriff for Mariposa County,
Deputy Bibby had responded to approximately three to five
disturbance calls at Lake McSwain Recreational Park. On only
one occasion had persons been evicted. That was for fighting.

Deputy Bibby was called to the campsite of plaintiffs’ July
14, 1989, regarding a reported disturbance. At the time of his
arrival, the disturbance had been resolved. He told each spokes-
person that Lake McSwain is a quiet campground and they like
to keep it quiet. He requested that each group stay as far apart
from each other as possible and have as little contact as possible
to minimize conflict. He provided each spokesperson a copy of
the park rules and had no further contact with either on July 14,
1989.

Deputy Bibby was dispatched on Saturday, July 15, 1989,
to the Lake McSwain campground in regard to a “physical fight

19a

of 16-20 people.” Deputy Bibby viewed the scene upon arrival
as a “potentially dangerous situation.” There was no physical
fight in progress. Deputy Bibby heard conversation between
Deputy Hogan and Park Rangers then present about a distur-
bance the night before; an assault on Vince Sereno, a Park
Ranger; and a disturbance on July 15, 1989. Deputy Bibby
heard that Ranger Sereno “had been hit by one of the individuals
in the campsite.” Ranger Lee requested that the Deputies ask
the people to leave. Deputy Bibby advised Ranger Lee that
Ranger Lee would have to ask the campers to leave the camp as
an agent of MID. Ranger Lee then asked the group of people to
leave. The plaintiffs refused to leave.

Deputy Bibby then contacted his Sergeant, advised him of
the situation, and was advised by his Sergeant to tell the indi-
viduals they would be subject to arrest if they refused to leave.

Deputy Bibby was told by one of the plaintiffs, a woman,
that “it was basically discrimination.”

Deputy Bibby described the procedure followed for law
enforcement inside the park, when requested by the MID Rang-
ers to assist them. Deputy Bibby stated:

Basically, I treated as a private individual a property
Owner who was requesting an individual to leave their
property. An analogy that I could use would be that
of a motel in which a person operating a motel, be it
a Clerk or whatever, who I consider to be an agent of
the motel, contact the Sheriff's Department and ask
us to assist them in removal of an individual from a
motel, and we get there, we contact the individual of
the motel. That individual explains the reasons for the
request to leave, and if that request is a valid reason
and a lawful reason, then we will assist, but only to
assist. They must ask the person to leave.

20a

Deputy Bibby went on to state that he would have to have
at least a valid reason “as he would interpret it” for asking people
to leave. He stated that it was not his practice to get both sides
of the story. Evictees usually knew why they were being asked
to leave.

The basis for his request to the plaintiffs to leave was: “A
disturbance the night before with this group of people. A
complaint of noise. An assault on a Park employee.” This
report was provided by the MID Rangers. Deputy Bibby relied
on what the Rangers said as the basis for his request to the
plaintiffs to leave.

Deputy Bibby advised the spokesperson for plaintiffs that
if they refused to leave they would be subject to arrest and that
their children would be placed in Child Proiective Service.
Deputy Bibby acknowledged he had law enforcement responsi-
bilities for Federal and State law in the McSwain Lake Recrea-
tional Area. Deputy Bibby made no investigation of the
plaintiffs’ claim that they were being discriminated against.
Deputy Bibby relied only on the information from the MID
Rangers to decide that the plaintiffs were not being discrimi-
nated against. Deputy Bibby’s frame of mind was to try to keep
the peace between the Rangers or the agents of the Park and the
campers.

The third Sheriff's Deputy, Roger Hogan, did not go to
Lake McSwain on Friday evening, but arrived before Deputies
Bibby and Paige on July 15, around 4:00 p.m. in response to a
call of verbal disturbance. Deputy Hogan was told by Park
Rangers that the plaintiffs had a reservation dispute the night
before; that loud noise and the use of a bullhorn and yelling of
profanities had occurred and that one of the campers had at-
tempted to strike Ranger Sereno in the face. When recalled for
direct examination, Deputy Hogan stated that Ranger Sereno
told him that Ranger Sereno raised his arm to shield his face and
that Mr. Nievera’s blow struck him on the forearm.

2la

In prior cross-examination, Deputy Hogan testified incon-
sistently that an attempt to strike Ranger Sereno had been made
and that there was no actual striking. Deputy Hogan said he was
told the attempted blow missed. Deputy Hogan’s testimony at
TT 155:19-156:9 which was specifically focused on whether
there was physical contact, establishes a clear basis on which
the jury could find that Deputy Hogan’s subsequent testimony
was SO inconsistent as to be a recent fabrication, not innocent
misrecollection or misinterpretation, from which the jury could
discredit the testimony of Ranger Sereno and Deputy Hogan
about the striking incident between Jaime Nievera and Deputy
Hogan. Deputy Hogan conducted no investigation at the site.
Deputy Hogan also understood that as a Deputy Sheriff he. was
to enforce State and Federal laws at Lake McSwain.

The Court has reviewed the entirety of the testimony of the
three Deputy Sheriffs to determine their then existing knowl-
edge of clearly established law and the information each arrest-
ing officer possessed about the circumstances that confronted
them. Each Sheriff's Deputy understood that Federal laws
against discrimination applied at the Lake McSwain Park and
that they were responsible for the enforcement of such laws.
Each Deputy Sheriff understood that the plaintiffs could not be
requested to leave without valid reason (“good cause’). Each
Deputy knew that MID had rules regulating deportment of
campers within the park.

The Sheriff's Deputies had the specific duty to enforce
local, state and federal law in the Park, particularly at the request
of MID Rangers, who had general custody and control of the
Park. The Deputies upon arrival at the site were provided
information by the park rangers that a disturbance was in prog-
ress; about a disturbance of the prior night, a dispute over a
Campsite with other campers, about use of a bullhorn that caused
other campers to complain about noise made by plaintiffs on
July 15, 1989; and about an attempted striking or actual striking

22a

of one of the Rangers by a member of the plaintiffs’ group. The
deputies received a specific request from the rangers to im-
mediately remove plaintiffs from the park to keep the peace.
Under the circumstances, even if the true facts were other than
as reported to and believed to be accurate by the Shenff's
Deputies, their actions are measured by the standard of the
reasonableness of their decision based on the information they
possessed in light of clearly established law; all subject to their
ability to be reasonably mistaken.

The Sheriff's Deputies’ belief that evicting the plaintiffs
was necessary to keep the peace was based on the Rangers’
reports of two separate disturbances, one the night of the 14th,
one the day of the 15th; report of assaultive behavior by one of
the plaintiffs against a Ranger; two instances of reported diffi-
culties between plaintiffs and other campers; the observations
of one of the Deputies who had been called to the park the prior
night for a disturbance involving some of plaintiffs; and that a
large group of unruly people had been requested to leave by Park
Rangers and had refused. The Deputies were not unreasonable
in acting on that information without investigation and without
hearing plaintiffs’ side of the dispute. It was not unreasonable
for the Deputies to rely on the reports of park rangers with whom
they worked on a continuing basis over the years. No circum-
stance of past unreliability of any ranger in reporting informa-
tion to Sheriff's Deputies was shown to provide cause for the
deputies to question the information furnished by the rangers.
The evidence was sufficient to support the finding that the
deputies were given stated reasons and an immediate request for
assistance. They acted under circumstances they in good faith
believed to be dangerous and in a manner they believed in good
faith to be necessary to maintaining peace in the park.

It is not reasonable to require a law enforcement officer,
faced with a request for immediate assistance by the park owner
under reported circumstances of plaintiffs’ apparent disturbance

|

23a

of and/or dispute with other campers, their argumentative and
noisy behavior, and the reported assaultive conduct to first
conduct a full factual investigation and then mediate or other-
wise attempt to determine fault and to ascertain who was telling
the truth. Law enforcement officers cannot serve the functions
of fact finder or arbitrator in the field when faced with a reported
disturbance and breach of the peace by a large group in a
remotely located area. Under the circumstances, the Sheriff's
Deputies acted on information they believed in good faith to be
accurate. The information was provided by Park Rangers who
were known to the Deputies and who the deputies could reason-
ably presume reliable. No Deputy, except Bibby, had any
personal knowledge of any plaintiff. No Deputy was shown to
have any motive to harm any plaintiff. No deputy was shown
to have a wrongfully discriminatory state of mind against plain-
tiffs. It is neither reasonable or feasible to expect the Deputies
under these circumstances to act as mediators of what appeared
to be a peace-threatening dispute.

The qualified immunity standard “gives ample room for
mistaken judgments.” Hunter at 15445; Malley, supra, at 343.
Assuming, arguendo, that all plaintiffs’ assertions are true. the
Sheriffs had no efficient means to determine the truth and no
effective method by which they could have controlled the situ-
ation, without taking custody of the plaintiffs at the campsite.
The Sheriff's Deputies were entitled to qualified immunity
because their decision to enforce the rangers’ request for evic-
tion of plaintiffs was reasonable, even if mistaken. Anderson v.
Creighton, supra, at 641. The jury found in favor of the
Sheriff's Deputies which makes moot the prior ruling of this
Court denying their motion for directed verdict. Reasonable
minds could differ on the collateral evidence of allegedly dis-
cnminatory or disrespectful conduct by Deputy Hogan toward
plainuffs. The jury chose to believe Deputy Hogan.

24a

For all these reasons, the verdicts in favor of all deputy
defendants were supported by substantial evidence. There is no
manifest injustice in a finding of qualified immunity for each
deputy. Plaintiffs’ motions for judgment notwithstanding the
verdict; new trial; and to alter or correct judgment as to defen-
dants Paige, Bibby and Hogan, are DENIED.

Plaintiffs’ Motions As To Rangers Sereno, Lee And
Selover

Plaintiffs’ motions as to the Park Ranger defendants rest
on obviously different grounds. It was emphasized by their
counsel that the Park Rangers are not law enforcement officers
and did not act as such. The Rangers did not strongly urge that
they are entitled to qualified immunity. Rangers Selover,
Sereno and their counsel stated the Rangers had no law enforce-
ment function. Even if, arguendo, the qualified immunity de-
fense is applied, the reasonableness of the rangers’ conduct
raises different considerations from the deputies.

Whether the Ranger defendants can be found liable for
violating plaintiffs’ civil nghts, i.e., their liberty interests to be
free from eviction from public campsites they paid to occupy al
Lake McSwain, without due process of law, is determined by
whether “good cause” existed on July 15, 1989. Plainuffs’ cite
California cases which have examined “good cause” in deciding
issues of exclusion from business establishments or places of
public accommodation. Stoumen v. Reilley, supra, 37 Cal.2d at
716; In Re Cox, supra, 3 Cal.3d at 214. “Good cause” neces-
sarily implies that revocation of a permit should be based on
sufficient evidence and should not be arbitrary. /d. at 717; see
also Rolon v. Kulwitzky (1984) 153 Cal.App.3d 289, 292, 200
Cal.Rptr. 217.

Ranger defendants misperceive entirely the civil nights
claim brought by plaintiffs for a denial of substantive due
process under 42 U.S.C. §1983. Due process prevents the

ices

25a

arbitrary use of Government power to interfere with the liberty
interest of a citizen in violation of the Fifth and Fourteenth
Amendments. Smith v. City of Fontana, supra, 18 F.2d at 415.
If the eviction from a place of public accommodation plaintiffs
had paid to inhabit was not authorized by law (i.e., was arbitrary
or unjustified), the action of defendants under color of state law
to deprive plaintiffs of their liberty. violates their civil nghts.
Cohen v. Norris, 300 F.2d 24, 31 (9th Cir. 1962). The question
ot by what standard “good cause” is established is most appro-
prately decided by reference to state law; for the park rangers
claimed their interference with plaintiffs’ right to patronize the
Lake McSwain Recreational Area was premised on the terms of
plaintiffs’ permit to be in the park, regulations of MID,. and
California state law, under which defendants purported to act.
There is no independent federal law that defines the standard for
removal trom a California local public entity-owned recreation
area.

Defendants’ reference to the definition of “good cause” in
federal wrongful termination of employment for age discrimi-
nation cases is not helpful. Defendants argue that “good cause”
is measured by a subjective standard based on their determina-
tion that “a valid independent reason” existed to justify the
eviction. The suggestion without citation of legal authority, that
“the absence of a discriminatory purpose;” ‘not probable cause’
(defendant Memo p. 8:24-26) is the standard is simply wrong.

To evict plaintiffs who had paid MID to occupy Campsites,
defendants were required to show a breach of the implied
contract stated by the permit and rules of MID,2 which were
furnished to plaintiffs and governed their occupancy, to justify
its termination or revocation. That required proof of a violation
of MID rules. Alternatively, proof of unlawful activity in the

* Section 12.16.020 of the MID Regulations provides in subsection (6)
that the permit required for occupancy may be revoked for any violation of
this statute and state lands.

26a

recreation area by plaintiffs or the conduct of immoral activities
by plaintiffs was required. No claim is made of any immoral
activities by plaintiff.

The Ranger defendants have advanced four reasons for
evicting plaintiffs: (1) that plaintiffs’ contentious conduct of the
preceding night during the dispute over campsite D-5 and con-
temporaneous noise violated MID rules and the terms of the
permit. [Ranger Sereno admitted he reached a complete settle-
ment with plaintiffs regarding any problems of the night of July
14, 1989.] (2) Defendants violated MID rules pertaining to
occupancy of reserved campsites the prior night by taking
campsites D-5 and D-6, which were apparently reserved. [This
ground was waived by the Friday settlement and as a matter of
law, could not have been a reason for plaintiffs’ eviction on July
15, 1989.] (3) Plaintiffs’ conduct of July 15, 1989, which caused
other campers to complain about noise, their use of a bullhorn,
and utterance of alleged profanities. [There was no prohibition
in the permit on MID rules against daytime noise. The only
specific testimony adduced was Mrs. Clanton’s that the man
with the bullhorn said: “Stop that shit.” No other evidence of
any profanity whatsoever was offered.] (4) Occupancy on July
15, by more than eight campers on the campsite in alleged
violation of the permit and MID rules. No other law is claimed
to limit the number of campers present at a campsite.

[Plaintiffs claim that the defendants waived this requirement for
Friday night by authorizing at least 12-14 campers’ residence at
campsite D-6 during the night of July 14, 1989, with express
knowledge that additional campers were expected that night.]

There was conflicting evidence whether plaintiffs were
advised that not more than eight campers could be present at the
campsite during the daytime hours the following day. Ranger
Sereno said he did, Mrs. Torres said he did not. Ranger Sereno
knew that plaintiffs, by late Friday night, had purchased permits

27a

for two campsites. This is direct evidence that all plaintiffs did
not intend to occupy the same campsite the following night.

On July 15, plaintiffs held a family picnic. Many of the
plaintiffs’ children were in the water. There was no evidence
that plaintiffs were ever previously advised that having 25
persons, from age 4 to 73, at least half of whom were children,
present at such a family picnic at a single campsite during
daylight hours violated MID rules. The evidence did not estab-
lish how many persons were simultaneously present at the
campsite on July 15, 1989. Such conduct violated no iaw.

Defendants argue that they did not have to show probable
Cause to arrest plaintiffs in order to evict them. This statement
is accurate. What the Ranger defendants had to establish to
justify plaintiffs’ eviction was “good cause” as defined above.
Plaintiffs raise the fact that all 25 plaintiffs were evicted from
Lake McSwain on July 15, 1989, even though at least 11
plaintiffs could not have violated any Park regulations whatso-
ever Friday night. It is necessary to consider the conduct of the
plaintiffs of July 15, 1989, to determine good cause. There is
dispute in the evidence about the level, intensity and duration of
noise at the D-6 campsite on July 15, 1986.

Ranger Selover, who had no contact with the plaintiffs
whatsoever the prior evening, made up his mind to evict plain-
tiffs July 15, 1989, based on what he heard from Ranger Sereno
about the events of the prior night without any direct knowledge
as to plaintiffs’ conduct on July 15 and the second complaint
about plaintiffs on July 15. Ranger Selover acknowledged that
his authority to revoke the plaintiffs’ permit to be in the Park
was based on their violation of the Park rules or a state law.

When Ranger Selover first observed the plaintiffs upon his
July 15, 1989, arrival at their campsite, the plaintiffs were sitting
in the same fashion as people at other campsites. He testified
the plaintiffs were “using the Park in an appropriate manner,”
except for the bullhorn and a radio they were playing. Ranger

28a

Selover admitted that there was no applicable regulation gov-
eming noise and that he did not base his action on the noise
regulation. Ranger Selover stated that he based his action on
California Penal Code §415. (TT 25:25-26:1) Ranger Selover
exhibited an erroneous understanding of California Penal Code
$415: “My understanding and the interpretation that was ex-
plained to me in the courses that I took and the further training
that I got was anything that was offensive to another could be
construed under this section. That’s what I was taught. Whether
it’s malicious or not.” (TT 26:14-21)

Ranger Selover’s decision to evict the plaintiffs was based
on their reported conduct of the night before that he did not
observe and a camper’s complaint about the use of the bullhorn.
Ranger Selover conducted no investigation whatsoever; did not
talk to plaintiffs to hear their side; and only approached the
plaintiffs to evict them from the site. (TT 29:12-30:8)

The decision to evict plaintiffs was made by Ranger
Selover. Ranger Lee testified he had no options about the
eviction on his arrival at the campsite July 15, 1989, “because
the decision had been made.” Ranger Sereno testified he did not
make the decision; that Ranger Selover decided and Ranger
Sereno agreed.

Ranger Selover’s decision on the ground of noise was
premised on his erroneous understanding of the law (Penal C.
$415). His decision to evict based on conduct of the night before
was unreasonable and unfair based on plaintiffs’ agreement with
Ranger Sereno and plaintiffs’ acquiescence in his directions.
The final ground, the number of campers on the site was made
under conditions of ambiguity as to the number of campers
actually on the site on July 15, 1989, and the uncertainty created
by the settlement of the prior night. If the number of persons at

’ Contrary to plaintiffs’ suggestion that excessive occupancy had been
approved, Ranger Sereno testified he told Mrs Torres Friday night that later
arriving campers would have to occupy another campsite. He was also told
plainuffs had more family arriving and needed two campsites.

29a

the D-6 campsite on July 15, 1989, was truly a concern, no
explanation was offered why plaintiffs were not then given the
opportunity to divide into smaller groups on different sites. The
regulation refers to occupancy of campsites which is itself
ambiguous as to whether that means overnight occupancy or
transitory occupancy, including social or related activities.
There was no evidence that the 8 person occupancy limit was
strictly enforced.4

No violation of any noise regulation occurred on July 15,
1991, for no regulation was in effect during daytime hours. No
Park Ranger ever testified that he heard noise of a level that was
offensive or intrusive to other campers. The reasonable course
of conduct for any agent in charge of the Park would have been
to instruct the plaintiffs: (1) not to use the bullhorn because
other campers had complained and to keep radio noise down.
There was no evidence that plaintiffs made any other type of
noise on July 15. It defies credulity to suggest that a public
family recreation area had to be maintained as a quiet zone
during daytime hours on a Saturday afternoon.

Mr. Wright, a camper on the adjacent campsite, testified
noise on Saturday was “not that loud.” He did not complain
about noise. All the evidence showed that Mr. Nievera’s com-
ments over the bullhorn were directed toward the lake and the
plaintiffs’ children who were in the Lake. His four-year old did
not swim. The Rangers testified that the use of the bullhorn
Standing alone was not enough to justify eviction. Defendants
argue that the “cumulative effect” of plaintiffs’ conduct justified
eviction.

Ranger Selover’s refusal to inquire into whether plaintiffs
presented any actual threat to the peace of the park and whether
any complaints about noise or number of occupants at the

4

A number of plaintiffs testified that they observed other campsites
occupied by more than eight campers and thought they were being discrim-
inated against.

30a

campsite could be easily and expeditiously resolved, manifest a
closed state of mind. Absent from his decision was any consid-
eration of Ranger Sereno’s judgement of Friday night that a
reasonable accommodation and resolution of the dispute over
campsites could be and was reached with plaintiffs and that
nothing in the plainuff’s conduct Friday night required their
eviction. Ranger Sereno had thanked the plaintiffs for their
cooperation. Plaintiffs’ Friday night conduct proved they would
accept direction and they in fact did comply with Ranger
Sereno’s directions. Although one or more female plaintiffs had
been contentious Friday night, no plaintiff refused to comply
with Ranger Sereno’s orders. No evidence was offered to
explain why, before the eviction decision was made, the Rangers
had reason to believe that any plaintiff would not comply with
further direction the next day.

After receiving the complaint about the bullhorn from the
dispatcher, Ranger Sereno did not make any decision to evict
the plainuffs from the Park. Although he had firsthand know!-
edge of the plaintiffs, which was founded on his actual face-to-
face communications and dealings with them the night before,
he made no recommendation or decision to evict plaintiffs.
Ranger Sereno was in the best position to make any decision.
He abdicated to Ranger Selover, who had no contact, dealings
with or firsthand knowledge of the plaintiffs.

The evidence demonstrated that, on Friday night, plaintiff
Sally Torres argued with Ranger Sereno about campsites that
had been posted as reserved for the Wrights. There is ample
evidence to find this conduct was unreasonable, based on testi-
mony of Ranger Sereno and the Wright family. No Ranger
testified of any threatening conduct by any plaintiff on July 15
before the decision to evict was made. The alleged assault on
Ranger Sereno cannot be used to justify the eviction. The
decision to evict had been made prior to that incident. Ranger
Selover had made the decision to evict before he reached the

es

31a

campsite on July 15. He testified his only purpose in going to
the campsite was to evict plaintiffs and that nothing would
change his mind. No other post-decision conduct of plaintiffs
is relevant to eviction, particularly post-notice protestations of
plainuffs to all defendants, plaintiffs’ protests, horn-honking
and related behavior. The only remaining bases for eviction
were the number of campers, the complaint of another camper,
and noise. Ranger Selover did not rely on the number of
campers on the site as a reason for eviction. This strongly
Supports the inference that the advancement of that alleged
ground was at best an afterthought, if not pretextual. The
making of noise by use of a bullhorn in the manner described
and by playing a radio at a family picnic do not suggest unlawful
activity nor do they support a reason to believe that plaintiffs’
were threatening the safety of others. The noise had disturbed
other campers and caused a complaint

At best, the evidence supported Ranger Selover’s belief
that the plaintiffs’ were noisy and argumentative the night before
and again on Saturday, causing two separate campers to com-
plain. The circumstances that occurred after plaintiffs were told
they had to leave and that nothing could change that decision
has no bearing on justification for eviction.

Plaintiffs had a right under the First Amendment to protest
unfair or arbitrary government action. City of Houston v. Hill,
482 U.S. 451, 461-63, 107 S.Ct. 2502, 2509-10, 96 L.Ed.2d 398
(1987).

The “cumulative” justification for the eviction was that the
park was remote and the plaintiffs were too numerous, conten-
tious, and noisy for one duty ranger to manage. Ranger Selover
believed that plaintiffs presented a danger to the recreation area
or anyone in it?> Plaintiffs had been argumentative, noisy and

> Mrs. Clanton testified she told Mrs. Birmingham that there was a large

number of people with a bullhorn that was real loud and noisy, “getting out
of hand.”

32a

caused other campers to complain. From this the jury could find
that plaintiffs presented a management problem to a single on
duty ranger, and that there was a potential for further disruption.®
From these combined circumstances the jury concluded that the
Rangers were justified in requiring plaintiffs to leave the park.
In a perfect world, this unfortunate dislocation to innocent
family members would not occur.

Concerted action by a number of plaintiffs, who argued
Friday night and at least one additional camper, Mr. Nievera,
who acted on Saturday, did not afford the Rangers a reasonable
basis to selectively evict only persons who threatened the peace
and tranquility of the park. The plaintiffs numbered 25 persons
who represented a number of family units, which the Rangers
could not have been expected to break up. The Rangers were
faced with what they believed to be a large argumentative group
of persons who had caused complaints from other campers on
two different occasions in less than 24 hours. With limited
manpower, a remote location, and reasonable apprehension of
continued trouble, the evidence was sufficient for a reasonable
trier of fact to decide that the decision to evict was based on a
good faith belief that to keep the peace in the park, there was no
practical alternative to requiring the plaintiffs to leave. The
rangers had a duty to maintain peace of the park for all its users.
Their good faith action to protect the interests and tranquility of
all present in the part constitutes good cause.

Although the Court as a trier of fact might reach a different
result, in re-weighing, the evidence, the Court cannot say the
verdicts against plainuffs on the fourth claim are against the
great weight of the evidence. Plaintiffs believe they were un-
fairly treated. They, however, were not blameless. The jury
apparently accepted testimony that one of the campers asked for
a match and threatened to “burn the place down” Friday night,

° Mr.{sic] Clanton testified that her husband was irritated by plaintiffs
conduct. The Clanton party celebrated when plaintiffs were evicted.

33a

and testimony that after Mrs. Torres reached an agreement, other
campers refused to accept the compromise and restarted the
argument. The jury must have believed that at the time of
eviction, plaintiffs represented a threat to the peace of the park.
Objectively, the treatment of plaintiffs may have been unfair:
the verdicts for the rangers, however, do not result in the
manifest injustice which requires a new trial. There is no reason
to believe that a new jury would reach any different verdict.

For these reasons, plaintiffs’ motion for judgment notwith-
standing the verdict as to defendants Sereno, Selover and Lee
on the fourth claim is DENIED. Their alternative motion for
new trial as to the fourth claim is DENIED, as is their motion to
alter or amend the judgment.

Defendants’ Motion For Judgment Notwithstanding The
Verdict Or New Trial.

Defendant Sereno has moved for judgment notwithstand-
ing the verdict or new trial relative to the jury’s award of
$4,500.00 in favor of plaintiff Jaime Nievera on the eleventh
claim for retaliation against Nievera by reason of his exercise of
his night of free speech. Defendant Sereno invokes his alleged
First Amendment right to report the incident between himself
and plaintiff Nievera to law enforcement authorities as justifi-
cation for seeking the complaint. There is no First Amendment
privilege for knowingly false speech.

Testimony established that defendant Sereno sought a
criminal complaint against plaintiff Nievera. (TT 134:18-
135:20) A substantial inconsistency in the testimony of Deputy
Hogan, Ranger Sereno, and plaintiff Nievera, raised disputed
issues of fact as to whether Nievera did anything the afternoon
of July 15 but attempt to cease using and to hand his bullhorn
to Ranger Sereno. Whether Ranger Sereno believed he was
being assaulted by plaintiff Nievera; whether Ranger Sereno
was struck by the bullhorn and whether any contact was made

34a

with the person of Ranger Sereno by the bullhorn were all factual
questions upon which the evidence was conflicting. No inde-
pendent corroborating evidence of contact of the bullhorn with
Ranger Sereno was adduced. These issues required the jury to
decide which witness to believe and what version of the testi-
mony to accept.

Ranger Sereno knew on July 15, 1989, that the plaintiffs
protested their removal from the Park on grounds of discrimi-
nation. Plaintiffs told Ranger Sereno that he would be “hearing
from them,” as they left the park. The jury could reasonably
have inferred that Ranger Sereno knew the plaintiffs would take
civil action against him and that he sought a criminal case as a
preemptive strike and/or retaliation against Nievera for
Nievera’s conduct in protesting what Nievera perceived to be
racial discrimination against him. The jury chose to believe Mr.
Nievera and to disbelieve Ranger Sereno. There was substantial
evidence to support the jury’s finding.

The First Amendment protects a significant amount of
verbal criticism and challenge directed at police officers. City
of Houston v. Hill, 482 U.S. 451, 461-63, 107 S.Ct. 2502,
2509-10, 96 L.Ed.2d 398 (1987). The freedom of individuals
to oppose or challenge police action verbally, without risking
arrest, is One important characteristic by which we distinguish
ourselves from a police state. /d., at 462-63, 107 S.Ct. at 2510;
Duran v. City of Douglas, 904 F.2d 1372, 1378 (9th Cir. 1990).
Persons who act under color of state law, may not exercise the
power at their disposal to punish individuals for conduct that is
not only lawful, but protected by the First Amendment. Duran,
supra, at 1378; see, also, Buise v. Hudkins, 584 F.2d 223,
229-230 (7th Cir.), cert. den., 440 U.S. 916, 99 S.Ct. 1234, 59
L.Ed.2d 46 (1978) (Act in retaliation for exercise of Constitu-
tionally protected right is actionable under 42 U.S.C. §1983,
even if act, when taken for different reason, would have been

proper. ).

ee

35a

Mr. Nievera had a right to protest his eviction from the
park. He had a right to express his belief that he and other
plaintiffs were being discriminated against. He had a right to
offer not to further use the bullhorn and to attempt to hand the
bullhorn to Ranger Sereno. Such findings were easily inferable
from the testimony received at trial. The jury had substantial
evidence to find that Mr. Nievera’s expressive speech, that he
was being discriminated against on account of his race, was a
substantial factor in causing Ranger Sereno to seek criminal
charges against Mr. Nievera. Ranger Sereno stipulated that in
so acting, he acted under color of state law.

The argument that Ranger Sereno did not “cause” the
issuance of the complaint and prosecution of Mr. Nievera is
inapposite. The prosecutorial discretion of the District Attorney
that most directly resulted in the issuance of the complaint in no
way abrogates the causal contribution of Ranger Sereno’s re-
quest for a criminal complaint as a substantial factor in the
criminal prosection of Mr. Nievera, the direct consequences of
which were to cause Mr. Nievera out of pocket damage. Ranger
Sereno pursued the complaint through the District Attorney’s
Office because he could not make a citizens arrest and the
Deputy Sheriffs were not present when the alleged assault
occurred. He testified that he sought to have the complaint
issued. (TT 134:23-24) Ranger Sereno’s request for a criminal
complaint was the legal cause of Mr. Nievera’s prosecution for
attempted assault and his incurrence of legal fees and lost wages
to defend a meritless criminal case. That Ranger Sereno’s
conduct is a concurrent cause in no way absolves him of liability
for such vengeful conduct.

The jury’s finding that Ranger Sereno wrongfully retali-
ated against Jaime Nievera for verbally protesting perceived
racial discrimination and the alleged interference with plaintiffs’
liberty interests and/or their eviction from Lake McSwain by

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filing a criminal incident report and seeking criminal charges
against Mr. Nievera was supported by substantial evidence.

Defendant Sereno’s motions for judgment notwithstanding
the verdict or new trial were DENIED.

Stipulation Re Costs

All plaintiffs and defendants Paige, Bibby and Hogan, by
and through their counsel in open court on January 3, 1992, have
stipulated and agreed, without prejudice to plaintiffs’ motions
for judgment notwithstanding the verdict, new trial, and to alter
or amend judgment, that said defendants are prevailing parties
in this action.

IT IS SO ORDERED.
DATED: January 16, 1992.

Oliver W. Wanger
United States Distnct Judge

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APPENDIX D

U.S. CONST., AMEND. V

No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a
Grand Jury, except in cases arising in the land or naval forces,
or in the Militia, when in actual service in time of War or public
danger; nor shall any person be subject for the same offence to
be twice put in jeopardy of life or limb; nor shall be compelled
in any criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due process of law;
nor shall private property be taken for public use, without just
compensation.

42 U.S.C. § 1983

Every person who, under color of any statute, ordinance,
regulation, Custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdic-.
tion thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit at equity, or other
proper proceeding for redress. For the purposes of this section,
any Act of Congress applicable exclusively to the District of
Columbia shall be construed to be a statute of the District of
Columbia.

28 U.S.C. § 2106

The Supreme Court or any other court of appellate juris-
diction may affirm, modify, vacate, set aside or reverse any
judgment, decree, or order of a court lawfully brought before it
for review, and may remand the cause and direct the entry of
such appropriate judgment, decree, or order, or require such
further proceedings to be had as may be just under the circum-

stances.

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FED. R. CIV. P. 1

These rules govern the procedure in the United States
district courts in all suits of a civil nature whether cognizable as
cases at law or in equity or in admiralty, with the exceptions
stated in Rule 81. They shall be construed to secure the just,
speedy, and inexpensive determination of every action.

FED R. CIV. P. 51

At the close of the evidence or at such earlier time during
the trial as the court reasonably directs, any party may file
written requests that the court instruct the jury on the law as set
forth in the requests. The court shall inform counsel of its
proposed action upon the requests prior to their arguments to the
jury. The court, at its election, may instruct the jury before or
after argument, or both. No party may assign as error the giving
or the failure to give an instruction unless that party objects
thereto before the jury retires to consider its verdict, stating
distinctly the matter objected to and the grounds of the objection.
Opportunity shall be given to make the objection out of the
hearing of the jury.

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APPENDIX E

EXCERPT FROM JURY INSTRUCTIONS

The next claim before you is based on Section 1983 of Title
42 of the United States Code, which provides “Every person,
who, under color of any statute, ordinance, regulation, custom
Or usage of any state or territory, subjects or causes to be
subjected any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights, privi-
leges or immunities secured by the Constitution and laws, shall
be liable to the party injured in an action at lawsuit in equity or
other proper proceeding for redress.”

Section 1983 creates a form of liability in favor of persons
who have been deprived of rights, privileges and immunities
secured to them by the United States Constitution and federal
statutes. Before 1983 was enacted in 1871, people so injured
were not able to sue state officials or persons acting under color
of state law for money damages in federal court. In enacting the
Statute, Congress intended to create a remedy as broad as the
protection provided by the Fourteenth Amendment to the United
States Constitution and federal laws. Section 1983 was enacted
to give people a federal remedy enforceable in federal court
because of concern that adequate protection of federal ‘rights
might not be available in state courts.

In order to prove their 1983 claim, the burden is upon the
plainuffs to establish by a preponderance of the evidence in the
case the following facts: First, that defendants Sereno, Selover
and Lee knowingly and unlawfully restricted or interfered with
plainuffs’ liberty interests by unlawfully evicting plaintiffs from
Lake McSwain. -

As to Defendants Hogan, Bibby and Paige, that said defen-
dants knowingly participated in the wrongful restraint and in-
terference with the liberty interests of plaintiffs by wrongfully
evicting plaintiffs from Lake McSwain.

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Second, that the defendants’ acts and conduct deprived the
plaintiffs of their federal, constitutional right not to be denied or
deprived of his or her liberty without due process of law.

Third, that the defendants’ acts and conduct were the legal
cause of plaintiffs’ humiliation, embarrassment or mental an-
guish.

The parties have stipulated; therefore, it is established, that
defendants in this case acted under color of law of the State of
California.

The plaintiffs also claim punitive damages for the 1983
violation that is alleged. Punitive damages I have already
explained to you. To establish their claim, plaintiffs must show
by a preponderance of the evidence that one or more of the
defendants deprived one or more of the plaintiffs of their liberty
without due process of law in at least one of the ways claimed
by plaintiffs; that is, plaintiffs must establish by a preponderance
of the evidence that defendants unlawfully restricted or inter-
fered with plaintiffs’ liberty interests by evicting them from
Lake McSwain.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1103%3A1. Public record. Not legal advice.