Petition for Writ of Certiorari — Ruvalcaba v. City of Los Angeles

Supreme Court, y

FILED =

89 4.7 Jun 22 1999

OFFICE Of pur eicy

No. 99-

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1999

GABRIEL RUVALCABA

Petitioner.

VS.

CITY OF LOS ANGELES and DARYL F. GATES, Chief of

Police, in his personal and official capacity etc., et al.,

Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

ROBERT MANN, Counsel of Record

DONALD W. COOK

ATTORNEYS FOR PETITIONER

3435 Wilshire Boulevard, Ste. 2900

Los Angeles, CA 90010

(213) 252-9444

QUESTIONS PRESENTED

|. Where a city police officer, in a “bifurcated” trial. claims

that his conduct was objectively reasonable under the Fourth

Amendment because he followed city policy and practice, and the

jury returns a verdict in favor of the officer. is the plaintiff entitled

to go forward on his Monell claim against the entity, and to prove

that the policy or practice the officer relied on is unconstitutionally

unreasonable?

2. Should a city police officer, in a “bifurcated” trial. be

permitted to rely on his following city policy or practice to show that

his actions were objectively reasonable under the Fourth

Amendment?

3. Where a city police officer, in a “bifurcated” trial. relies

on his following city policy and practice to show that his actions

were reasonable, should the plaintiff be permitted to show that city

policy and practice is not reasonable?

LIST OF PARTIES

Petitioner Gabriel Ruvalcaba was plaintiff and appellant in

the courts below. Respondents City of Los Angeles‘and Daryl F.

Gates, chief of police, were defendants and appellees in the courts

below. Martin Coon was a defendant in the trial court. He was not

a party in the court of appeals. Arthur Sakamoto was a defendant in

the trial court, and appellee in the court of appeals.

TABLE OF CONTENTS

QUESTIONS PRESENTED

LIST OF PARTIES

TABLE OF AUTHORITIES

OPINION BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

STATEMENT OF THE CASE

A. The District Court Proceedings

B The Ninth Circuit’s Decision.

REASONS FOR GRANTING WRIT

i)

The Court Should Grant Review To Decide Whether

Evidence That An Officer Acted Reasonably Because He

Followed Department Policy Exonerates Those Who Set The

Policy

CONCLUSION .

il

9

14

TABLE OF AUTHORITIES

Page(s)

Cases

Chew v. Gates.

27 F.3d 1432 (9th Cir. 1994) 4

City of Canton v. Harris,

489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) 12

City of Los Angeles v. Heller,

475 U.S. 796, 106 S.Ct. 1571, 89 L.Ed. 2d 806

(1986) | | . 8,10, 12

Fagan v. City of Vineland,

oa F.20 tcee CRC. U9 ors eek Be 12

Vizhbaras v. Prieber.

761 F.2d 1013 (4th Cir. 1985) . . oe 9

Wilson v. Layne,

*US. *, 119 S.Ct. 1692, * L_Ed.2d * (1999)... .. 9

Constitution/Statutes

Title 28, United States Code § 1254(1) A la ee 2

Title 42, United States Code § 1983 ... 5 I hg Pe rns a

ie fe EO 8. eee ee ee eee yee 2

1V

Other Authorities

Barbara Kritchevsky,

Making Sense of State of Mind: I Jetermining Responsibility

in Section 1983 Municipal Liability Litigation.

60 Geo. L. Rev. 417 (1992) 12

Douglas L. Colbert,

Bifurcation of Civil Rights Defendants

Undermining Monell in Police Brutality Cases.

44 Hast. L.J. 499 (1993) |. eure 12, 13

Project,

Suing the Police in Federal Court.

88 Yale L.J. 781 (1979) | | 5 3 I |

Telford Taylor,

The Anatomy of the Nuremberg Trial (1992) .. .. 13

Appendices

Appendix A—-Court of Appeals Opinion

Appendix B-Court of Appeals’ Order denying Rehearing Petition

etc.

Appendix C-Trial Court Judgment

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1999

GABRIEL RUVALCABA

Petitioner,

VS

CITY OF LOS ANGELES and DARYL F. GATES, Chief of

Police, in his personal and official capacity,

Respondents

Petitioner Gabriel Ruvalcaba respectfully prays that a wnt

of certiorari issue to review the judgment and opinion of the United

States Court of Appeals for the Ninth Circuit filed in this proceeding

on February 5, 1999

OPINION BELOW

The opinion of the Court of Appeals is reported at 167 F.3d

514. It appears in the Appendix hereto [hereinafter “Apx.’],

Appendix A. No opinion was rendered by the District Court for the

Central District of California. The judgment of the district court

appears as Appendix C

JURISDICTION

The judgment of the Court of Appeals for the Ninth Circuit

was filed on February 5, 1999. Apx. Al. A timely petition for

rehearing and suggestion for rehearing en banc was denied on March

24, 1999. Apx. BI. This petition for certiorari was filed within 90

days of March 24, 1999. This Court's jurisdiction is invoked under

28 U.S.C. § 1254(1)

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution. Amendment IV

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized

United States Code, Title 42

§ 1983. Civil Action for Deprivation of Rights

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 jurisdiction 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 in equity, or other proper proceeding for redress

For the purposes of this section, any Act of Congress

applicable exclusively to the District of Columbia shali be

considered to be a statute of the District of Columbia.

i)

STATEMENT OF THE CASE

A. The District Court Proceedings.

Mr. Gabriel Ruvalcaba sued in district court under 42 U.S.C.

§ 1983, claiming he was subjected to excessive force during the

course of his May 28, 1989, arrest by City of Los Angeles police

officers. Defendants were the City of Los Angeles, Police Chief

Daryl Gates, and Los Angeles Police officer Martin Coon. Mr.

Ruvalcaba claimed that Coon caused or permitted a police dog to

attack him,' then kicked and struck him when he tried to defend

himself against the dog's attack, and that such force was

unreasonable. Apx. A6.

The district court severed (or “bifurcated”) Mr. Ruvalcaba’s

claims against Coon form those against the City and Gates. The jury

returned a verdict in favor of Mr. Ruvalcaba against Coon. The court

submitted a special interrogatory to the jury to determine whether the

excessive force resulted from Coon’s kicking and striking Mr.

Ruvalcaba, or from his “use of the dog,” or both. The jury found that

the excessive force was due to Coon’s kicks and blows only. The

district court then dismissed Mr. Ruvalcaba’s claims against the City

and Gates because of a jury’s special finding that Coon’s “use of the

dog” did not violate Mr. Ruvalcaba’s constitutional rights. Apx. A2.

The arrest occurred inside the Mayan Theater, where Mr.

Ruvalcaba worked. RT III-20:12-25. Coon received information that

someone had complained that Mr. Ruvalcaba had threatened two part

time workers with a pipe and locked himself in the theater. RT II-

26:19-24: RT III-288:24-289:13. Coon and two other officers

The intentionality is the same, since Coon knew the dog was

trained to bite whomever it found. RT [V-104:6-13, 105:19-22.

109:19-110:8 (testimony of LAPD’s chief dog trainer Yarnall)

3

entered the theater with Coon’s dog and found Mr. Ruvalcaba

sleeping in an office. RT III-21:3-10; RT II-17:11-14. Although

Coon’s dog was trained to automatically bite anyone it found, RT IV-

104:6-13, 105:19-22, 109:19-110:8 (testimony of LAPD dog trainer

Yarnall),” no one gave an announcement of police presence or

warning of any type before or during the search, RT II-16:19-17:22.

18:4-8; RT If-292:21-22. When Coon’s dog indicated someone was

inside the office, without giving any warning Coon let the dog enter

the office to attack Mr. Ruvalcaba. RT II 19:11-21:2. RT []-297:4-

12 (when Coon’s dog indicated person was inside the office. no

announcement or warning was given; at no time during the search did

Coon give any warning or announcement): RT | 14:18-15:18 (If

announcement was given, it was Coon’s practice to record fact of the

announcement in his report); RT I 17:23-18:1 (in his report regarding

Mr. Ruvalcaba’s arrest, Coon made no record or notation that an

announcement was made).

Mr. Ruvalcaba, laying face up, first became aware of the dog

when he felt the dog biting his right lower leg. RT III-22:1-9. 40:19-

20. In an attempt to stop the dog's attack, he grabbed the dog and

tried to bite it. The dog continued its attack, biting him on his upper

right leg and his hand. RT III-22:15-20, 23:7-17, 25:3-9.41:20-25

While the dog was attacking him, Mr. Ruvalcaba heard someone say

“Why are you insulting my dog” and felt blows to his head. RT III-

22:21-25, 24:13-25. After the strikes to his head, Mr. Ruvalcaba felt

two or three blows to his right side ribs which made him feel

“suffocated” and unable to move. RT III-25:7-18, 27:11-20. 49-20-

* LAPD’s chief trainer and the person who trained Coon’s dog,

Sgt. Yarnall (RT IV-85:19-23), testified that the dog was trained to

“find and bite,” .e., automatically bite anyone it found. see, e g..RT

['V-105:19-22 (As of May 1989, LAPD dogs were trained to go up to

the suspect and bite the suspect unless the dog was called off): see

also Chew v. Gates, 27 F.3d 1432, 1441 (9th Cir. 1994) (LAPD dogs

trained to bite automatically suspects located by the dogs).

4

21. The strikes to his nbs were very painful, causing Mr. Ruvalcaba

tocry During this time, he could hear laughter. RT III-26:9-18

Although Mr. Ruvalcaba could not identify who was present

in the office when he was bit and beaten, RT III 49:17-19, the

officers conceded that Coon was the only officer present. RT III

297:4-9, 298:8-9 (Coon entered office with his dog); RT [-111:3-11

(Officer Moore admits neither he nor Morales were present in the

room where Mr. Ruvalcaba was bitten); RT [I-111:24-112:1 (when

Moore entered the office, Coon already in the office and next to Mr

Ruvalcaba)

Coon claimed that any injuries Mr. Ruvalcaba suffered were

his own fault because he “fought with the dog,’ while denying that

he or anyone else kicked or struck Mr. Ruvalcaba. RT I-2:21-25; RT

111-300:25-301:3

Coon defended his use of the dog by claiming, over

plaintiff's objections, that he used the dog in accordance with the

policy and practice of the LAPD. RT [V-32:11-23, RT [V-48:16-

§0:25, 55:14-21, 57:17-22, 58:16-59:8 (LAPD policy discouraged

announcements); RT IV 59:21-60:2 (under LAPD policy, dog may

be deploved for any “felony” suspect); RT IV 65:18-67:20, 71:7-72:7

(LAPD policy on how dog handler proceeds once he arrives at the

scene), RT IV-86:14-88:8 (Coon and his dog were properly

certified); RT [V-89:7-14 (LAPD trained Coon on when it would be

appropriate for him to let his dog bite).

Furthermore, over plaintiff's objections, Coon defended his

actions by presenting evidence that LAPD did not consider releasing

the dog a “use of force” because that wasn’t the “intent,” RT II-

27.13-18 (Coon testifies dog attack is not a use of force); RT Il-

80: 16-18, 86:12-18 (per deputy chief, LAPD does not consider a dog

attack to be a use of force subject to use of force rules); because

people were bitten so infrequently, RT []-86:12-18 (LAPD dog bites

are not considered use of force because such bites are “very

unusual”); because the injuries are generally minor, RT [V-101-1-8

(LAPD’s “bite and hold” training “minimizes damage” and

“generally” results in “one bite”)

Besides unsuccessfully object) ‘g to Coon’s reliance on

departmental policy to defend the reasonableness of his actions,

plaintiff unsuccessfully (1) sought a jury instruction that reliance on

departmental policy did not necessarily make the dog attack

reasonable under the Fourth Amendment. RT V-148:6-18: AER 30]:

RT V-184:6-186:3:? and (2) unsuccessfully sought to introduce

evidence that the evidence defendants relied upon to support the

reasonableness of their canine policies was untrue

In particular, to rebut defendants’ assertions that LAPD’s

police dog policy was reasonable. Mr. Ruvalcaba tried to show that

LAPD dogs, because of their “bite and hold” training, were more

likely to cause serious injury than a dog not trained to “bite and

Plaintiff's requested instruction stated

A police officer may not justify his conduct

on grounds that his conduct was in conformity with

the policy or practice of his department. The test is

Whether the force used by the officer is objectiy ely

reasonable, not whether the officer used force in

compliance with department policy or practice

AER 301

The district court recognized that “there is certainly

evidence in the record that would support the giving of such an

instruction if it's a correct statement of the law ” RT V-149-4-

10 (emphasis added), but refused to give the instruction. RT V-

184:6-15

hold” (RT I'V-181:5-21; RT V-9:6-10:24); that Coon’s dogs attacked,

bit and injured cver 50 percent of the many people he arrested with

the dogs’ assistance, that his “use of force” rate (assuming that

causing or permitting a dog to attack a person is a “use of force’)

was more than 2,500 percent higher than officers without dogs (RT

X-3:3-4:21 |offer of proof]); that the rate at which he injured scores

of people (were he held responsible for the injuries his dogs

inflicted) was 10,000 percent higher than other officers (RT X-5:8-23

[offer of proof]); that he seriously injured people (/.e., inflicted

injuries requiring in-patient hospitalization) 20,000 percent more

often than the average officer (RT X-7:17-8:14); that the 15 LAPD

dog handlers year-in and year-out put more people in the hospital by

causing or permitting their dogs to attack and bite than the rest of the

7,500-officer LAPD police force combined (RT V-88:18-22); that

the suspects bitten were overwhelmingly not armed, not dangerous,

and frequently not guilty of any crime at all (like Mr. Ruvalcaba,

who was not charged with any crime) (RT V-63:5-10 [offer of

Exhibit 131], AER 233-34 [Exhibit 131]); and that the canine unit's

practices were inconsistent with LAPD’s general use of force policy,

as well as standards promulgated by California's Commission on

Police Officer Standards and Training (“POST”)(RT IV 201:3-24,

206:9-16; RT V-63:5-10 [offer of Exhibit 63, POST standards]; AER

227-30 [Exhibit 63], 235 [Exhibit 139]). Because of the court's

“bifurcation” order, none of this evidence was permitted."

' The jury was also not permitted to view a documentary, Exhibit

17, about LAPD’s canine program, called “Why Be a Cop.” The

documentary was produced by LAPD for use in recruiting police

officers. It showed that:

O Permitting an LAPD-trained dog to attack causes officers

to lose control of the suspect;

© LAPD lets its dogs continue to attack and bite even though

the suspect is merely trying to protect himself from the dog’s

attack;

In addition, the trial court excluded evidenced that the

overwhelming majority of persons bitten by Coon’s dogs -- and

especially those seriously injured -- were persons of color. RT X-

15:4+16:1 (offer of proof).

B. The Ninth Circuit’s Decision.

On appeal, Mr. Ruvalcaba argued that the district court

wrongly bifurcated, wrongly permitted Coon to defend his conduct

by relying on City policy, wrongly excluded evidence showing the

policy was unreasonable, and wrongly refused to permit Mr

Ruvalcaba go forward against the City and Gates Apx. All

The Ninth Circuit agreed that Mr. Ruvalcaba should have

been permitted to show that the City and Gates were responsible for

the kicks and the blows, but held that — since the jury found that

Coon’s use of the dog was not unreasonable - the City and Gates

could not be held responsible for the use of the dog to attack and bite

Mr. Ruvalcaba. Apx. Al8-A21. Relying on this Court’s decision in

City of Los Angeles v. Heller, 475 U.S. 796, 106 S.Ct. 1571.89 L.Ed

2d 806 (1986), the Ninth Circuit equated the jury's finding that Coon

did not use excessive force by letting the dog attack as equivalent to

a finding that no excessive force was used. and further held that

Coon’s obedience to his department's policy, /.e., “following orders,”

© LAPD approves ordering or permitting its dogs to attack

unarmed, non-resisting (or passively resisting) Suspects;

© LAPD approves using its dogs to attack unarmed persons

without giving an opportunity to surrender: and

© LAPD approves letting its dogs attack without giving a

warning that the dog is going to attack

The “Why Be a Cop” chillingly demonstrated in a manner

that anybody could understand what really happens when an LAPD-

trained police dog, is permitted to attack a human

was not a good faith defense. Apx. Al8. Hence, on remand Mr

Ruvalcaba could not recover damages for his injuries caused by the

department-approved dog attack. Apx. A20

REASONS FOR GRANTING WRIT

The Court Should Grant Review To Decide Whether

Evidence That An Officer Acted Reasonably Because He

Followed Department Policy Exonerates Those Who Set

The Policy.

Until this Court's recent decision in Wilson v. Layne, * US

* 1198S Ct. 1692, * L_Ed.2d * (1999), there was little guidance and

less agreement about what role official policy and practice should

play in determining whether an officer's conduct was reasonable

under the Fourth Amendment. See Vizbaras v. Prieber, 761 F.2d

1013 (4th Cir. 1985) (divided court approves an instruction on

qualified immunity allowing the jury to consider the defendants’

subjective good faith belief that their conduct was lawful and that

they relied in subjective good faith on police department standard

operating procedures). In Vizbaras, the dissent would have found

that “standard police department operating procedures was

admissible, but only as a guide to the jury as to what ts reasonable

under given circumstances, and not to establish defendants’ good

faith.” 761 F.2d at 1019, n4

In Wilson v. Layne, this Court recognized that an officer's

reliance on department policy may entitle him to qualified immunity,

but does not make an otherwise unreasonable search constitutionally

reasonable

Finally, important to our conclusion was the

reliance by the United States marshals in this case

on a Marshal’s Service ride-along policy which

explicitly contemplated that media who engaged in

ride-alongs might enter private homes with their

cameras as part of fugitive apprehension arrests

The Montgomery County Sheriff's Department also

at this time had a ride-along program that did not

expressly prohibit media entry into private homes

Such a policy, of course, could not make

reasonable a belief that was contrary to a decided

body of case law. But here the state of the law as to

third parties accompanying pol, ice on home entries

was at best undeveloped, and it was not

unreasonable for law enforcement officers to look

and rely on their formal ride-along policies

119 US. at *

The Ninth Circuit's reliance on City of Los Angeles v. Heller.

475 US. 796, 106 S.Ct. 1571, 89 L_Ed. 2d 806 (1986). to foreclose

Mr. Ruvalcaba’s claims for compensatory damages against the City

and Gates for the dog bite injuries, demonstrates the need for this

Court's review. The panel rejected petitioner’s argument that “the

jury might have found Officer Coon's actions reasonable because he

was following departmental policy,” because. according to the panel,

Heller “flatly reyected such an argument.” Apx. Al8. While it is

true that in Heller, as in Mr. Ruvalcaba’s case. the jury was not

instructed on the qualified immunity defense (Apx. A18), that did not

make Heller controlling. Mr. Ruvalcaba objected to evidence that

Coon acted as trained and requested an instruction that training was

not a defense, whereas the Heller plaintiff presented such evidence

475 US. at 803 and n.4 (Stevens, J. dissenting) (testimony of

plaintiff's expert, Dr. James Fyfe). Moreover, Heller was decided 13

years before this Court's decision in Wilson v. Layne, and the record

in Heller apparently did not raise the issue that where the officer

presents evidence that he acted in accordance with department

10

policy, is that the equivalent of a good faith defense? In that

instance, the absence of a separate qualified immunity instruction

would be immaterial. Project, Suing the Police in Federal Court, 88

Yale L.J. 781, 800 (1979) Gurors give police “benefit of any doubt”

when “acting in the course of his duties’).

Heller recognized that if the individuals officer had availed

himself of a “defense such as good faith,” then exoneration of the

individual officer would not necessarily have been inconsistent with

a determination of municipal liability. 475 U.S. at 1573. Wilson v

Layne recognizes that reliance on department policy would not make

an otherwise unconstitutional search reasonable. Here, Coon did

avail himself of a “good faith” defense when he presented evidence

that his conduct was reasonable because he relied on departmental

policy and practice. In addition, Mr. Ruvalcaba explicitly and

repeatedly objected to Coon’s reliance on departmental policy and

practice, unsuccessfully sought a jury instruction informing the jury

that reliance on departmental policy and practice did not make

Coon’s conduct objectively reasonable, and unsuccessfully attempted

to introduce evidence that defendants’ factual claims regarding the

reasonableness of its canine policies and practices were untrue

Under these circumstances, in contrast to He//er, a finding

that Coon’s use of the dog was reasonable can not fairly be equated

with a determination that causing or permitting the dog to attack and

bite Mr. Ruvalcaba was reasonable under the Fourth Amendment

@ Coon was permitted to and did rely on a “good faith”

defense — it was just given a different name: following orders. The

jury was entitled to assume that the evidence it heard about how

Coon acted in accordance with City policy and practice was relevant

to the issues before it, /.e., whether Coon acted reasonably. Why else

was such evidence admitted?

@ Despite Mr. Ruvalcaba’s explicit request that the jury be

instructed that following orders did not necessarily make Coon’s

actions reasonable — and the district judge's recognition that “there

is certainly evidence in the record that would support the giving of

such an instruction if it's a correct statement of the law “(RT

V-149:4-10) -- no instruction was given which would have clarified

this important, probably determinative. issue

® And finally— because of the “bifurcation” order — Coon

Was permitted to present evidence that the City policies and practices

he relied on were reasonable, and Mr. Ruvalcaba was not permitted

to show they were not

Reading Heller, as the panel below did. to mean that a jury

could and would not exonerate the officer as acting reasonably

because he followed his department's policy is, Mr. Ruvalcaba

submits, a serious mis-reading of the case.’ If learned judges find it

’ See, e.g., Fagan v. City of Vineland, 22 F.3d 1283. 1292, 1302

(3rd Cir. 1994). (Third Circuit holds that reading Heller to mean

there must be a finding that line officer who followed department

policy committed a constitutional violation in order to hold the

municipality liable, would be error. “{A]n improperly trained police

officer may be ignorant of the danger created by his actions and

inflicts injury. Meanwhile, the city's policymakers, with a wealth of

information available to them. are fully aware of those dangers but

deliberately refuse to require proper training. ). See also Colbert.

Bifurcation of Civil Rights Defendants Undermining Monell in

Police Brutality Cases, 44 HAST. L.J. 499. $23 (1993) (“The

Supreme Court’s holding in Monell did not condition a local

government's possible liability upon any initial determination that a

municipal official or agent had deprived the litigant of a

constitutional nght.”); Kritchevsky, Making Sense of State of Mind

Determining Responsibility in Section 1983 Municipal Liabilin

Litigation, 60 Geo. L. Rev. 417. 441-42 (1992) (“If municipal

liability was proper in Canton [City of Canton v. Harris. 489 US

| >]

~

reasonable to exonerate officers from liability because they followed

their department's policy (Wilson v. Layne, supra, Vizbaras v

Prieber, supra), may not a reasonable jury do likewise?

The problem this case raises is a very common one, and not

just in litigation against law enforcement agencies. The prevalent

defense strategy is to “bifurcate” the trial of the individual actors

trom that of the entity, and for the individuals to claim, either

expressly or by obvious implication, that they acted reasonably

because they were just doing what they were trained to do. Colbert,

Bifurcation of Civil Rights Defendants: Undermining Monell in

Police Brutality Cases, 44 HAST. L.J. 499, 552-62 (1993). As the

Court recogmzed in Wilson v. Lynch, this is a very attractive

argument. It is especially compelling to jurors because ‘jurors’

general sense of fairness mitigates against blaming an officer for

causing a constitutional injury when he merely carried out

department policy as an obedient employee,” Colbert, supra, at 548,°

and not just because jurors don't even know that employing agencies

stand behind their officers to pay whatever damages are awarded.

Cal. Gov't Code § 825 (must pay compensatory damages), even

punitive damages. Cornwell v. City of Riverside, 896 F.2d. 398, (9th

Cir. 1990) (Cal. Gov't Code § 825(b) permits public entity to pay

378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)], He//er cannot mean

that exoneration of individual defendants preclude municipal

liability.”’)

United States Nuremberg Chief of Counsel for War Crimes,

General Telford Taylor, believed that “Article 8 of the Charter,

providing that obedience to a superior's command to commit a crime

should be considered only in mitigation . is flawed. If the

defendant did not know, and had no basis for knowing, that the order

he had obeved was unlawful, the defendant should not be held liable

at all.” Telford Taylor, The Anatomy of the Nuremberg Trial 630

(1992)

punitive damages for employee) lronicaliy, had Coon admitted that

he kicked and struck Mr. Ruvalcaba to overcome Mr Ruvalcaba's

“resistance” to the dog — in accordance with City policy,’ the jury

probably would have found that “reasonable” as well The jury

likely inferred a consciousness of guilt and hence unreasonableness

from Coon’s less than candid account of what he did

Since jurors recognize that police departments are

paramilitary organizations, in which police officers are expected to

act in accordance with training, they give especially great deference

tO training given law enforcement officers The Fourth

Amendment's “reasonableness” requirement has been diluted and

replaced by a different standard. Instead of determining whether a

seizure was objectively reasonable under the Fourth Amendment.

jurors are deciding only whether a particular officer acted reasonably

in following his training. As a consequence, the “intangible factors”

Which Justice Stevens feared would make bifurcation “a tactical

weapon of great value,” Heller, 475 U.S. at 807 (Stevens. J.

dissenting), are no longer as difficult to see By the simple expedient

of “bifurcation,” coupled with reliance on superior orders, the

reasonableness and hence constitutionality of Fourth Amendment

seizures can and has been effectively insulated from scrutiny

CONCLUSION

For the foregoing reasons, the Petition for a Writ of

Certiorari should be granted

ROBERT MANN, Counsel of Record

DONALD W. COOK

Attorneys for Petitioner

~ Mr. Ruvalcaba was prepared to prove at trial that LAPD canine

unit policy and practice was to beat people with clubs and feet who

tried to protect themselves from the dogs’ attacks

14

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

167 F.3d 514, 1999 U.S. App. LEXIS 1589; 99 Cal. Daily Op

Service 990: 99 Daily Journal DAR 1269

GABRIEL RUVALCABA.

Plaintiff-Appellant,

CITY OF LOS ANGELES; DARYL GATES, MARTIN COON,

(#21604) in both their personal and official capacities,

Defendants-Appellees

No. 97-55353

August 6, 1998, Argued and Submitted, Pasadena, California

February 5, 1999, Filed

PRIOR HISTORY: Appeal from the United States District Court for

the Central District of Californa. D.C. No. CV-90-2797-CBM

Consuelo B. Marshall, District Judge, Presiding

DISPOSITION: AFFIRMED in part, REVERSED in part, and

REMANDED

COUNSEL: Donald W. Cook, Los Angeles, California, for the

plaintift-appellant

Katherine J. Hamilton, Assistant City Attorney, Los Angeles,

California, for the defendants-appellees

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JUDGES: Before: Betty B. Fletcher, Robert Boochever. and David

R. Thompson, Circuit Judges. Opinion by Judge Boochever

OPINION BY: ROBERT BOOCHEVER

OPINION

BOOCHEVER, Circuit Judge

Plaintiff Gabriel Ruvalcaba was seriously injured during his

arrest and apprehension by a Los Angeles Police Department

("LAPD") canine unit. Ruvalcaba brought this action in federal

district court pursuant to 42 U.S.C. § 1983, alleging that he was the

victim of excessive force during his arrest, and that his treating

physician at the jail dispensary was deliberately indifferent to his

serious medical needs. He sued, among others, the City of Los

Angeles (the "City"), LAPD Chief Daryl Gates ("Gates"). Officer

Martin Coon (the canine officer who arrested Ruvalcaba). and Dr

Arthur Sakamoto (the physician who treated Ruvalcaba at the jaal

dispensary). The district court severed Ruvalcaba's claims against

Officer Coon and Dr. Sakamoto from those against the City and

Gates. At the close of the evidence, the district court granted Dr

Sakamoto's motion for directed verdict. The jury then returned a

verdict in favor of Ruvalcaba against Officer Coon. The district court

dismissed the remaining claims against the City and Gates because

of the jury's special finding that Officer Coon's use of the dog did not

violate Ruvalcaba's constitutional rights

Ruvalcaba appeals, seeking to have his claims against the

City and Gates reinstated, and the grant of directed verdict to Dr

Sakamoto reversed. We have jurisdiction under 28 USC. § 129]

We affirm in part, reverse in part, and remand for further

proceedings

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1 BACKGROUND

Ruvalcaba was an ex-employee of the Mayan Theater and

was living there at the time of his arrest. At approximately 2:30 a.m

on May 28, 1989, Ruvalcaba returned to the theater after a night of

heavy drinking and went to sleep in the manager's office. Around

3.00 am, Los Angeles Police Officers Moore and Morales

responded to a burglary call at the Mayan Theater. They were told

by theater employees that an ex-employee had locked himself inside

the theater, armed with a pipe and possibly a gun. The officers

requested a canine unit

Standing outside and in front of the theater, Officers Moore

and Morales announced themselves as police officers and stated,

"The dogs are coming. Give yourself up." The warnings were given

in both English and Spanish. The front theater doors were locked

with a chain, but the doors could be opened about six to eight inches

The officers stuck their heads through the doors, and announced

again in both English and Spanish that the police had arrived and a

canine unit had been called. The officers then repeated the same

warnings a third time, this time from inside the rear door of the

theater

About an hour later, Officer Martin Coon arrived with his

police dog, Smokey. Officer Coon was told by Officers Moore and

Morales that they had given several warnings that a canine unit had

been called. With no further warning, Officer Coon and Smokey

entered the theater through the rear entrance, followed by Officers

Moore and Morales. Smokey was unleashed during the search. After

searching most of the theater, Smokey alerted near the office where

Ruvalcaba was located. Officer Coon opened the door to the office

and allowed Smokey to go in, again with no warning that a police

dog was present. Officer Coon followed Smokey into the office

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At this point, the stories of Officer Coon and Ruvalcaba

differ. Officer Coon testified that as Smokey approached Ruvalcaba,

Ruvalcaba, who was on all fours. lunged at Smokey, grabbed him

and attempted to fling Smokey into the wall. Ruvalcaba then lost his

balance and fell into the desk. The fight lasted only a few seconds

Officer Coon testified that during the entire time of the struggle, he

yelled continuously at Ruvalcaba to stop fighting the dog. Officer

Coon denied ever kicking or striking, or even touching Ruvalcaba

In contrast, Ruvalcaba testified that he was sleeping when he

awoke to find the dog biting him. Ruvalcaba stated that he tried to

fight off the dog by putting his hand into the dog's mouth and biting

the dog back. Ruvalcaba stated that he could feel someone striking

his head and chest, but could not identify the officer responsible for

the blows

Officer Coon called off the dog after Ruvalcaba was

subdued. Moore entered the office to arrest Ruvalcaba and stated that

he thought Ruvalcaba was lying on his stomach. When Moore put his

knee on Ruvalcaba's chest and started to move Ruvalcaba's hands

into proper position, Moore realized that Ruvalcaba was actually on

his back. He turned Ruvalcaba over and then handcuffed him. Moore

stated that he did not know if he broke Ruvalcaba's ribs when he

knelt on him. After a quick pat down, Moore brought Ruvalcaba out

of the theater and put him into the squad car. At approximately 5:15

a.m., the police took Ruvalcaba to the Parker Center jail dispensary

for medical treatment. Ruvalcaba was moaning, almost incoherent.

and complained of severe pain in his chest when Dr. Sakamoto. the

treating physician at the jail dispensary, examined him. Dr. Sakamoto

failed to take a medical history. He took Ruvalcaba's vital signs,

which were normal, and reported that Ruvalcaba's breathing sounds

were okay. Sakamoto testified that he routinely would "percuss and

oscillate the chest," but there were no notations to that effect on the

chart. He also cleaned and sutured two of * : dog bite wounds, which

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were on Ruvalcaba's left forearm and thigh. Twelve hours later.

Ruvalcaba was unable to get out of bed

Approximately thirty-six hours after Ruvalcaba arrived at the

jail dispensary, he was taken to County General Hospital where Dr

Julia Cameron examined him. At that time, Ruvalcaba had decreased

breathing sounds on the right side of his chest, tenderness in the right

rib area, and air in the subcutaneous tissue below his right arm. A

chest X-ray confirmed that he had two fractured ribs, a collapsed

lung, and blood was collecting inside his chest. Eighteen hours later,

Dr. Cameron inserted a tube into the chest to collect the blood. Based

upon her initial examination, Dr. Cameron noted that the dog bites

were not severe but gave Ruvalcaba a prophylactic antibiotic to

prevent infection

Ruvalcaba's expert, Dr. Peter Meade, testified that Ruvalcaba

probably fractured his ribs before he entered the jail dispensary

Ruvalcaba's complaints of severe chest pains and his inability to get

out of bed were consistent with fractured ribs, because an injury to

the chest wall makes it hard to move. Additionally, the lung probably

collapsed at the time of the injury

The defendants’ expert, Dr. Michel Leidner, explained that

Sakamoto gave appropriate treatment by cleaning and suturing the

wounds. He stated that the collapsed lung was not very serious,

because Dr. Cameron waited eighteen hours before inserting the tube

to drain the blood. He testified, however, that Sakamoto should have

taken a medical history

Sakamoto testified that Ruvalcaba's pain was consistent with

the dog bites and inconsistent with fractured mbs because

Ruvalcaba's breathing was "okay" and he did not show increased

pain as he took a breath. Dr. Cameron testified that the air under the

subcutaneous tissue could have developed after the injury.

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Ruvalcaba sued Officer Coon and Dr. Sakamoto under 42

U.S.C. § 1983. nl Ruvalcaba alleged that Officer Coon violated his

Fourth Amendment rights by using excessive force in arresting him,

and that Dr. Sakamoto violated his civil rights through Dr

Sakamoto's deliberate indifference in treating his serious medical

needs. Ruvalcaba also sued the city of Los Angeles and its police

chief, Gates, alleging that the LAPD's dog bite policy was

unconstitutional. See Monell v. Dept. of Social Servs. of the City of

New York, 436 U.S. 658, 56 L. Ed. 2d 611. 98S. Ct 2018 (1978)

(providing for municipal liability under § 1983 for injuries caused by

the municipality's own unconstitutional or illegal policies).

nl 42 U.S.C. § 1983 provides:

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 jurisdiction 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 in equity, or other proper proceeding for redress.

Over Ruvalcaba's objections, the district court bifurcated the

claims against Officer Coon and Dr. Sakamoto from the Monell

claims against the City and Gates. Because the first phase of the trial

would determine only whether Officer Coon used excessive force

against Ruvalcaba, the district court precluded Ruvalcaba from

offering any evidence to prove the existence of an unconstitutional

dog bite policy under Monell. That evidence, the district court

concluded, was relevant only to the second phase of the trial in

which the Monell liability of the City and Gates would be

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determined. If, at the end of the first phase of the tral, the jury

determined that Officer Coon did not violate Ruvalcaba's

constitutional rights, then Ruvalcaba would have suffered no

constitutional injury, and the Monell claims against Gates and the

City would be dismissed as a matter of law. City of Los Angeles v

Heller, 475 U.S. 796, 799, 89 L. Ed. 2d 806, 106 S. Ct. 1571 (1986)

(per curiam)

During the pretrial status conference, the district court

advised the parties that it needed to resolve some factual issues

before it could rule on the issue of Officer Coon's qualified

immunity. The district court indicated that it would probably submit

special interrogatories to the jury to determine those factual issues

At the close of the evidence, the district court granted Dr

Sakamoto's motion for a directed verdict. Prior to closing arguments,

the district court stated that in an excessive force case, it considered

the determination of whether an officer enjoys qualified immunity as

essentially the same issue as whether the officer used excessive

force. In both instances, the issue is whether the officer's actions

were reasonable under the circumstances in light of clearly

established law. The parties agreed that a preliminary finding on

Officer Coon's qualified immunity was unnecessary, and the district

court submitted the excessive force issue directly to the jury using a

special verdict. n2

n2 The special verdict consisted of two questions. These questions

and their answers are referred to hereinafter as the "special verdict,"

to be distinguished from the "special interrogatories" later given to

the jury. The first question asked the jury:

Do you find, by a preponderance of the evidence, that defendant

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MARTIN COON violated the constitutional rights of plaintiff

GABRIEL RUVALCABA by using excessive force during his

apprehension and arrest on May 28, 1989, under the United States

Constitution and 42 United States Code section 1983as defined in

the instructions of this court

Answer "YES" or "NO."

If the jury answered this question "Yes," it was instructed to answer

the following second question

Was such a violation the proximate cause of injury to plaintiff

GABRIEL RUVALCABA as defined in these instructions?

Answer "YES" or "NO."

wetter eee eee eee End Footnotes- - ---------------

After the parties had completed closing arguments, the

district court stated that, in its opinion, all of Ruvalcaba's Monel]

claims alleging an unconstitutional dog bite policy were based solels

on Officer Coon's use of the dog, not on Officer Coon's kicking or

striking Ruvalcaba. Thus, the court stated that "if the jury should

decide excessive force, but [find that] the excessive force is not

attributed to the dog or [Officer Coon's]} use of the dog, then it seems

that we still don't get to the Monell issue." The district court

informed the parties that, if the jury found against Officer Coon on

the issue of excessive force, the court would then submit special

interrogatories to the jury to further determine whether the excessive

force resulted from Officer Coon's kicking and striking Ruvalcaba,

or from Officer Coon's use of the dog, or both Only if the jury found

that the excessive force resulted from Officer Coon's use of the dog

would the district court proceed with the second phase of the trial

There had been no notice given, however, prior to the completion of

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closing arguments, that special interrogatories would be submitted to

the jury to determine the nature of the excessive force

Ruvalcaba objected to the special interrogatories as

unnecessary, arguing that because Officer Coon's kicks and blows

were intended to protect the police dog from Ruvalcaba, those kicks

and blows were tn furtherance of the dog bite policy. Thus, a jury

finding that Officer Coon used excessive force only through kicking

or striking Ruvalcaba would not foreclose a finding that the City and

Gates were liable under Monell for maintaining an unconstitutional

dog bite policy. The district court deferred ruling on the objection

and instead directed the parties first to draft the language of the

special interrogatories

After this discussion, the jury returned the special verdict,

finding that Officer Coon had violated Ruvalcaba's constitutional

rights through the use of excessive force, and that the violation was

the proximate cause of Ruvalcaba's injuries. The district court then

ruled that it would submit special interrogatories to the jury to

determine the nature of the excessive force. The parties eventualls

agreed to submit the following two questions

|. Do vou find that the excessive force used by Officer Coon was due

to his use of the dog?

Answer, yes or no

Yes No X

2. Do vou find that the excessive force used by Officer Coon was due

to his having kicked or struck the plainnuff?

Answer, ves or no

Yes X No

Before the jury returned with answers to the special interrogatories,

however, Ruvalcaba objected again. Ruvalcaba argued that because

he was informed of the substance of the special interrogatories only

after closing arguments were completed. he was effectively

precluded from making arguments and offering evidence addressing

those special interrogatories. Ruvalcaba also objected on the grounds

that the special interrogatories required the jury to reach a unanimous

decision on "which blow or kick or bite was excessive." The district

court overruled the objections, stating that Ruvalcaba was never

foreclosed from making any relevant arguments or offering relevant

evidence, and that requiring the jury unanimously to determine the

source of the excessive force was proper

The jury returned the special interrogatories finding that the

excessive force was due to Officer Coon's kicks and blows. but not

the use of the dog. The district court concluded _ that. under Heller,

Ruvalcaba had suffered no constitutional injury from Officer Coon's

actions under the dog bite policy, thereby absolving the City and

Gates from any liability under Monell. The district court then

dismissed the claims against the City and Gates. In determining the

damage liability of Officer Coon. the jury awarded Ruvalcaba $

60,400 in compensatory damages, and $ 5,000 in punitive damages

Ruvalcaba appeals, seeking to have his claims against the

City and Gates reinstated, and the grant of directed verdict to Dr

Sakamoto reversed. All parties agree that any and all claims against

Officer Coon arising out of this incident have been fully satisfied

Thus, the only defendants remaining on this appeal are the City,

Gates, and Dr. Sakamoto ("defendants")

Il DISCUSSION

A. Standing to Appeal and Article III Jurisdiction

The bulk of Ruvalcaba's appeal alleges numerous errors

committed by the district court before and during the lability phase

of the trial against Officer Coon and Dr. Sakamoto. The defendants

argue that because Ruvalcaba has accepted payment in full of the

judgment entered against Officer Coon, he lacks standing to appeal

any issues that seek to revisit Officer Coon's lability. Specifically,

the defendants argue that Ruvalcaba lacks standing to appeal the

following issues: whether the district court erred by (1) allowing

Officer Coon to rely on and present evidence supporting a "superior

orders" defense; (2) refusing to instruct the jury that following orders

is not a defense; (3) precluding Ruvalcaba from offering evidence to

challenge Officer Coon's characterization of the City's dog-bite

policy, (4) precluding Ruvalcaba from presenting any evidence on

the risk of death or serious injury from police dog attacks in general:

(5) precluding Ruvalcaba from arguing or instructing the jury that

siccing the dog on him was deadly force, (6) denying Ruvalcaba's

motions for judgment as a matter of law and directed verdict that

siccing the dog on him was per se unreasonable; (7) excluding the

“Drameco Kindle" videotape depicting a LAPD police dog attack in

a separate incident; and (8) refusing to instruct the jury that warnings

should be given where feasible. Ruvalcaba's claim that the district

erred in bifurcating the tral and conditioning the liability of the City

and Gates exclusively on Officer Coon's use of the dog also falls into

this category

Any finding of error on these issues, the defendants argue,

would necessarily result in a reversal of the entire judgment, not just

that portion adverse to Ruvalcaba. Ruvalcaba counters that the

district court's errors prevented the jury from finding that Officer

Coon's use of the dog constituted excessive force, which in turn

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resulted in the dismissal of Ruvalcaba's claims against Gates and the

City

A prevailing party usually may not appeal a decision in its

favor. In an appropriate case, however. a prevailing party may appeal

a collateral adverse ruling. Electrical Fittings Co. v. Thomas & Betts

Corp., 307 U.S. 241, 242, 83 L. Ed. 1263. 59 § Ct. 860 (1939).

Deposit Guar. Nat'l Bank v Roper, 445 U.S. 326, 334,63 L. Ed 2d

427, 100 S. Ct. 1166 (1980); United States v. Good Samaritan

Church, 29 F 3d 487, 488 (9th Cir 1994) If the adverse ruling can

Serve as the basis for collateral estoppel in subsequent litigation. the

prevailing party has standing to appeal. Good Samaritan Church. 29

F 3d at 489

The district court's order dismissing Ruvalcaba's claims

against the City and Gates was a ruling on the merits, and collaterally

estops Ruvalcaba from pursuing these claims in the future. Thus, to

the extent that Ruvalcaba is a prevailing party appealing from an

adverse ruling, Ruvalcaba has standing to appeal any issues resulting

in the dismissal of his Monell claims That does not end our

jurisdictional analysis, however. We must also determine whether

Ruvalcaba's claims are moot

“Article Ii of the Constitution limits federal courts to the

adjudication of actual, ongoing controversies between litigants." Ruiz

v City of Santa Maria, 160 F 3¢ 543. $48 (9th Cir 1998): Deakins

v. Monaghan, 484 U.S. 193, 199. 108 S Ct 323,98 L. Ed. 2d 529

(1988). If there is no longer a possibility that an appellant can obtain

relief for his claim, that claim is moot and must be dismissed for lack

of jurisdiction. See Ruiz, 160 F 3d at 549. Deakins, 484 U.S. at 199:

Chew v. Gates, 27 F.3d 1432. 1437 (9th Cir. 1994): Sea-Land Serv

Inc. v International Longshoremen's & Warehousemen's Union. 939

F 2d 866, 870 (9th Cir. 199})

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The remedy that Ruvalcaba seeks on appeal is_ the

remstatement of his claims against the City and Gates. A subset of

the issues he raises relate only to the jury's determination of lability

against Officer Coon and not to the derivative liability’of the City or

Gates. Ruvalcaba asks this court to vacate the jury's finding that

Officer Coon's use of excessive force was not the result of his use of

the dog. He seeks a remand for a new trial only on that factual issue,

While at the same time asking us to affirm the jury's other factual

finding that Officer Coon's kicks constituted excessive force. Even

if we were able to remand solely for a new tral on the issue whether

Officer Coon's use of the dog constituted excessive force, we are

foreclosed from doing so. All the parties agree that Ruvalcaba's

acceptance of payment in full of the judgment against Officer Coon

settles all issues against Officer Coon and no further claims arising

from this incident may be brought against him. Thus, the issue of

whether Officer Coon's use of the dog constituted excessive force has

been fully litigated, and the doctrine of res judicata precludes

Ruvalcaba from reopening that issue on remand. See Nordhorn v

Ladish Co., 9 F.3d 1402, 1404 (9th Cir, 1993) (listing requirements

of res yudicata)

We hold that Ruvalcaba's appeal, to the extent it raises issues

relating only to Officer Coon's liability on use of the dog, 1s moot for

lack of an available remedy. and we lack Article II] yurisdiction over

those claims

We further address, however, Ruvalcaba's remaining claims

concerning the dismissal of his claims against the City, Gates and Dr

Sakamoto

B_ The Special Interrogatories

Ruvalcaba asserts that submission of the special interrogatories

constituted error for two reasons. First, Ruvalcaba was not informed

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of the substance of the special interrogatories prior to closing

arguments, and therefore could not tailor his arguments around those

questions. Second, the special interrogatories were used improperly

by the district court because the court erroneously assumed that

Officer Coon's kicks were not in furtherance of the City's dog bite

policy. Ruvalcaba argues that he was prejudiced by this error because

the district court relied on the answers to the special interrogatories

to dismiss Ruvalcaba's claims against the City and Gates

|. Failure to Inform Counsel of the Substance of the Special

Interrogatories Prior to Closing Arguments

he decision "whether to submit special interrogatories to the jury

is a matter committed to the discretion of the district court." Acosta

v. City & County of San Francisco, 83 F 3d | 143, 1149 (9th Cir ).

cert. demed, 117 S. Ct. 514 (1996) Accordingly, we review for an

abuse of discretion the district court's decision to luform the parties

of the substance of special interrogatories after closing arguments

See Binder v. Long Island Lighting Co., 57 F.3d 193, 199 (2d Cir

1995): Sakamoto v. N.A.B Trucking Co., 717 F.2d 1000, 1006 (6th

Cir. 1983)

This court has not vet decided the specific question of when

a district court must disclose the substance of special interrogatories

to the parties. It has, however, addressed the similar question of

when the substance of a special verdict must be disclosed. In Landes

Constr. Co. v. Royal Bank of Canada, 833 F 2d 1365 (9th Cir. 1987).

this court stated, in dictum, that "the form of the [special] verdict

should be decided before closing argument so that counsel may

structure their arguments, and the court its instructions. accordingly

The failure to follow this practice may constitute reversible error

ld. at 1374 (citations omitted). Landes cited Sakamoto v. NAB

Trucking Co., supra, and Smith v Danyo, 585 F.2d 83 (3d Cir

1978). both of which present facts similar to those presented in this

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appeal

In Sakamoto, the district court submitted a special

interrogatory to the jury after counsel had finished their closing

arguments, and without previously advising the parties that it was

doing so. Sakamoto, 717 F.2d at 1004. The additional question was

needed to determine whether punitive damages would be available

in the damages phase. The Sixth Circuit stated

We consider it the better and safer practice for

the tral court to submit the actual special

interrogatories and supplemental instructions to

counsel in writing in advance of argument. But we

hold that the disclosure prior to final argument of at

least the substance of the special verdict

interrogatories and supplemental instructions ts

mandatory

Id at 1006 (emphasis added). The court held that the failure to

disclose the substance of the special interrogatory to the parties was

an abuse of discretion. /d at 1007. The court also held, however.

that the error was harmless because the defendants were otherwise

aware of the issue contained in the special interrogatories and could

not claim to have been surprised by it. Id. The Second Circuit agrees

with the position taken by the Sixth Circuit. See Binder, 57 F.3d at

199 ("it 1s the better practice under Rule 49(a) to submit special

interrogatories to counsel prior to summation" (quotations omitted))

In Smuth v. Danyo, supra, the Third Circuit went further than

the Sixth Circuit in holding that both the form and substance of

special interrogatories must be disclosed to the parties prior to

summation. Smith stated that the exact wording of special

interrogatories is very significant, and “counsel should know itt

before they have their last opportunity to address the jury." Smith,

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S85 F.2d at 88. The Smith court held that "the practice of depriving

counsel of the opportunity to see and comment upon special verdict

interrogatories prior to their closing argument" was an abuse of

discretion. Jd Like Sakamoto, however. Smith held that any error

was harmless because the failure to disclose the special

interrogatories prior to closing arguments was not prejudicial. /d

We now expressly hold that a district court shall disclose at

least the substance of special interrogatories before closing

arguments have been completed. Further, while we agree that it is

‘the better and safer practice for the trial court to submit the

actual special interrogatories to counsel in writing in advance of

argument," Sakamoto, 717 F.2d at 1006, whether that failure results

in error will depend on the nature of the questions in the particular

case

In this case, the parties were not told prior to closing

arguments that special interrogatories would be used to determine the

nature of the excessive force. The fact that both parties participated

in drafting the final language of the special interrogatories is

irrelevant because the drafting took place after closing arguments. At

that point, counsel no longer had the opportunity to "plan an

effective argument whose objective is to translate persuasion into

specific decisive action by the jury."" Sakamoto. 717 F 2d at 1005

(quoting Clegg v. Hardware Mut. Cas. Co., 264 F.2d 152. 157 (4th

Cir 1959))

Ruvalcaba argues on appeal that had he been given notice of

the substance of the special interrogatories prior to his argument to

the jury, he would have argued that all of the force used by Officer

Coon - both the kicking and the siccing of the dog - was the result of

an unconstitutional dog bite policy. The district court ruled that

despite the lack of notice, Ruvalcaba was never precluded from

arguing his theory to the jury, and the district court would not

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speculate as to whether Ruvalcaba in fact would have done so. That,

however, misses the point. Knowledge of what issues the special

interrogatories would address was necessary to allow Ruvalcaba to

shape his closing argument. We hold that the district court abused its

discretion by failing to inform the parties of the substance of the

special interrogatories prior to closing arguments

Given the record before us. however. we find that the error

did not result in any prejudice to Ruvalcaba. First, it is not clear that

Ruvalcaba did not actually make the arguments he asserts were

precluded by the error. During his closing argument, Ruvalcaba

made several references to the fact that Officer Coon kicked

Ruvalcaba in order to protect his dog. Second, the argument that both

the kicks and dog bites were the result of the city's dog bite policy

would not have affected the jury's answers to the special

interrogatories. The questions themselves do not assume that the

City's and Gates’ liability depends on a finding that excessive force

was due to the use of the dog. The special interrogatories simply ask

what acts constituted the excessive force, independent of whether the

dog-bite policy gave rise to those acts. Whether both types of force

used by Officer Coon - the kicking and the siccing of the dog - were

the result of the dog bite policy is a separate issue concerning the

district court's interpretation of the answers to the special

interrogatories

Ruvalcaba needed to convince the jury that Officer Coon's

use of the dog on Ruvalcaba was unreasonable, and he argued as

much throughout his entire summation. Although the jury found

against him on that issue, the result was not affected by the district

court's decision to submit the special interrogatories without

providing notice of their substance to the parties prior to summation

Rather, the prejudice arose from the district court's interpretation of

the special interrogatories, which we address below.

Because Ruvalcaba was not prejudiced by the district court's

failure to notify counsel of the substance of the special

interrogatories until after summations, we hold that the error was

harmless

2. Dismissal of Claims Against the City and Gates

Ruvalcaba alleges that the district court erred in dismissing

Ruvalcaba's Monell! claims based on the incorrect conclusion that

Officer Coon's kicks and blows were not the result of the City's dog

bite policy. He first argues that the special interrogatories did not

decide the issue whether he suffered constitutional injuries due to

Officer Coon's use of his dog, because the jury might have found

Officer Coon's actions reasonable because he was following

departmental policy. The Supreme Court, however, has flatls

rejected such an argument

The difficulty with this position is that the

jury was not charged on any affirmative defense

such as good faith which might have been availed of

by the individual police officer Respondent

contends that even though no issue of qualified

immunity was presented to the jury, the jury might

nonetheless have considered evidence which would

have supported a finding of such immunity. But the

theory under which jury instructions are given by

trial courts and reviewed on appeal is that juries act

in accordance with the instructions given them, and

that they do not consider and base their decisions

on legal questions with respect to which they are not

charged.

Heiler, 475 U.S. at 798 (citation omitted). In this case. as in Heller.

the jury was not instructed on qualified immunity or good faith, and

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is presumed not to have based its decision that Officer Coon's use of

the dog did not constitute excessive force on those grounds. /d

Second, Ruvalcaba argues that because all the force used by

Officer Coon was the result of the City's dog bite policy, he should

be able to pursue a Monell claim based upon the jury's finding that

Officer Coon used excessive force by kicking and striking

Ruvalcaba. In his amended complaint, Ruvalcaba alleged as

unconstitutional the LAPD's policies of: training canine officers to

strike suspects who resist the dog attacks, improperly selecting

officers prone to excessive force to become canine officers, and

inadequately traiming canine officers to limit the amount of force

they use That 1s, Ruvalcaba argues that he sufficiently raised an

issue of fact whether there was a connection between the City's dog

bite policy and Officer Coon's stnking and kicking Ruvalcaba. The

district court disagreed

We believe that Ruvalcaba sufficiently established issues of

fact whether Officer Coon kicked Ruvalcaba in an attempt to protect

the police dog, and whether the kicks were in furtherance of the

City's dog-bite policy. Thus, we hold that the district court erred by

dismissing the claims against the City and Gates based on the jury's

answers to the special interrogatories. We remand to the district court

to remstate those claims against the City and against Gates, in both

his official and individual capacities. n3

n3 We treat the claim against Gates in his official capacity as one

against the City. As the Supreme Court has stated, "official-capacity

suits generally represent only another way of pleading an action

against an entity of which an officer is an agent." Kentucky v

Graham, 473 U.S. 159, 165, 87 L. Ed. 2d 114, 105 S. Ct. 3099

(1985) (internal quotation marks omitted). "As long as the

government entity receives notice and an opportunity to respond. an

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official-capacity suit is, in all respects other than name. to be treated

as a suit against the entity." /d at 166

We note that Ruvalcaba's victory may be a hollow one because on

remand, he may no longer seek compensatory damages. Such

damages are unavailable because Ruvalcaba has already been full

compensated for his injuries attributable to Officer Coon's kicks and

blows. No compensatory damages were awarded for Ruvalcaba's dog

bite injurtes because the jury found that they did not result from the

use of excessive force. The fact that Officer Coon's kicking may have

been the result of an unconstitutional dog-bite policy does not change

the jury's finding, and would not justify allowing additional damages

for the dog bites

Ruvalcaba cites Chew for the proposition that he can still

recover damages from the City and Gates because he has not been

compensated for his dog bite injuries. Like this case. Chew involved

claims that an officer had used excessive force both by kicking the

plaintiff and through his handling of the dog. Chew, 27 F.3d at 1436

Chew involved a general finding of excessive force, however. so it

was not clear whether the award of damages was compensation for

the injuries from the dog bites or the kicks. /d at 1437-38. Here. it

was clear from the jury's answers to the special interrogatories that

the jury awarded damages to Ruvalcaba only for his kicking injuries

because only the kicks constituted the excessive force. Ruvalcaba has

already been fully compensated for his kicking injuries, and the

“one-satisfaction rule preclude|s Ruvalcaba] from seeking a

further monetary award from the remaining defendants for those

injuries." /d. at 1438

Even though Ruvalcaba has been fully compensated for his

injuries, he may still recover nominal damages for a “separate and

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distinct [constitutional] wrong" irrespective of whether he is entitled

to actual damages for that wrong. Larez v. City of Los Angeles, 946

F 2d 630, 640 (9th Cir 1991) Punitive damages are unavailable as

a matter of law) City of Newport v. Fact Concerts, Ine., 453 US

247,69 L. Ed. 2d 616, LOLS. Ct. 2748 (1981)

On remand, however, with respect to Ruvaleaba's claim

against Gates, in his individual capacity, Ruvalcaba would be free to

seek both nominal and punitive damages. Sth v. Wade, 461 US

30, 35-36, 75 L. Ed. 2d 632, 103 S. Ct. 1625 (1982). If Gates ts

entitled to qualified immunity, summary judgment in his favor would

be appropriate. See Siegert v. Gilley, 500 U.S. 226, 231-32, L14L

Ed 2d 277, 111 S. Ct. 1789 (1991), Chew, 27 F.3d at 1446. We

should note that the events in this case occurred in May 1989. In

(*hew, this court held that, as of September 1988, the law was not

established sufficiently clearly to prohibit the use of dogs to search

for and bite unarmed suspects. /d at 1447

In sum, we reverse the district court's order dismissing the

claims against the City and Gates. We remand for determination

whether the City, and Gates in his official and individual capacities,

adopted and maintained a policy of training and using police dogs in

an unreasonable manner. Because Ruvalcaba has already been fully

compensated for his injuries, he may recover only nominal damages

against the City and against Gates in his official capacity. Ruvalcaba

is free on remand, however, to pursue both nominal and punitive

damages against Gates in his individual capacity, in the event that

Gates ts not qualifiedly immune

C. Dr. Sakamoto

Ruvalcaba argues that the district court erred by granting Dr

Sakamoto's motion for judgment as a matter of law. In order to

succeed on a section 1983 claim for imadequate medical treatment.

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Ruvalcaba must demonstrate that Dr. Sakamoto showed “deliberate

indifference to [Ruvalcaba's] serious medical needs" Fyte//e y

Gamble, 429 U.S. 97, 104, 50 L. Ed. 2d 251.978 Ct 285 (1976)

Further, the deliberate indifference must be both "purposeful,"

MeGuckin v. Smith, 974 F.2d 1050. 1060 (9th Cir 1992). overruled

on other grounds, WMX Techs., Inc. v. Miller, 104 F 3d 1133 (9th

Cir. 1997), and "substantial" in nature. Jones v Johnson. 781 F 2d

769, 771 (9th Cir, 1986)

The evidence of Dr Sakamoto's treatment of Ruvalcaba

reveals facts from which a jury could find several omissions and

errors. Dr. Sakamoto failed to take Ruvalcaba's medical history

Which likely would have revealed that Ruvalcaba had suffered a

chest injury. Dr. Sakamoto's failure to diagnose Ruvalcaba's broken

ribs caused a thirty-six hour delay before Ruvalcaba was treated.

resulting in Ruvalcaba suffering a significant amount of pain

Although such errors may support a finding that Dr. Sakamoto was

negligent, the facts do not support an inference that Dr Sakamoto

acted purposely with deliberate indifference. See MeGuckin. 974

F 2d at 1060. The district court therefore did not err in dismissing

Ruvalcaba's claim against Dr. Sakamoto

D Equal Protection Claim

Ruvaleaba contends that the district court erroneousls

excluded evidence necessary to support his race discrimination

clam. The district court dismissed that claim after Ruvalcaba

indicated that "Wwe are not going forward with that count." Ruvalcaba

reiterated that position during the discussion over jury instructions

Because Ruvalcaba dropped this claim, the district court did not

abuse its discretion in excluding the evidence

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Ill CONCLUSION

We AFFIRM the district court's grant of Dr Sakamoto's motion for

judgment as a matter of law. We also AFFIRM the district court's

exclusion of evidence relating to Ruvalcaba's equal protection claim

We find that it was error not to disclose the substance of the special

interrogatories until after closing arguments, but find that this error

was harmless. We conclude that the district court's ruling that Officer

Coon's kicks were unrelated to the City's dog bite policy was

erroneous, and the district court should not have dismissed

Ruvalcaba's claims against Gates and the City We thus REVERSE

the order dismissing those claims and REMAND to the district court

to reinstate them to allow Ruvalcaba to pursue nominal damages

against the City and Gates in his official capacity, and both nominal

and punitive damages against Gates in his individual capacity We

dismiss as moot Ruvalcaba's remaining claims alleging errors

committed by the district court relating to Officer Coon's liability

The parties shall bear their own costs

AFFIRMED in part, REVERSED in part, and REMANDED

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GABRIEL RUVALCABA

Plaintiff-Appellant

CITY OF LOS ANGELES. DARYL GATES. MARTIN COON

(#21604) in both their personal and official « apacities

Detendants-Appellees

ORDER

Before FLETCHER. BOOCHEVER. and THOMPSON. Cireurt

Judges

The pane: Nas unanimousis voted to deny the peuil

en oanc

| ne Tuli COurt as Deen advised of thc SUR CSUON ror rehearing

Dane and no judge of the court has requested a vote on

Vil

~

suggestion for rehearing en banc. Fed R App P

[he petition for rehearing and rehearing en

DENIED

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

GABRIEL RUVALCABA, ) CV90-2797 CBM

)

Plaintiff, ) JUDGMENT

)

\ )

)

CITY OF LOS ANGELES, et. al., )

)

Defendants )

)

This case having been tried by jury before the Honorable

Consuelo Marshall, and the jury having returned a verdict at the

conclusion of the case, judgment is hereby entered as follows

Plaintiff is awarded $60,400 in compensatory damages and

$5,000 in punitive damages as to Defendant Martin D. Coon

Plaintiff's claims against the Defendants City of Los Angeles and

Daryl Gates are dismissed, because of the jury's responses to the

special interrogatories submitted by the Court.

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Judgment shall be entered in favor of Defendants Joe Moore

and Joel Morales because Plaintiff dismissed these Defendants

Plaintiff's claim against Defendant Dr. Arthur Sakamoto is dismissed

because the Court granted Dr. Sakamoto’s judgment as a matter of

law

IT IS SO ORDERED

Dated 2/8/94 S

CONSUELO B. MARSHALL. JUDGE

UNITED STATES DISTRICT COURT

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