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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1999
- **Citation:** 528 U.S. 1003

## Text

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.

Apx. Cl

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0532%3A1. Public record. Not legal advice.