Appendix — Thrash v. Gulliford

NO. OFFICE OF THE CLERK

IN THE SUPREME COURT

OF THE UNITED STATES

October Term, 1997

DEPUTY PAUL THRASH,

Petitioner,

Vv.

HERBERT GULLIFORD,

Respondent.

On Petition for Writ of Certiorari

To the United States Court of Appeals

For the Ninth Circuit

PETITIONER'S APPENDIX

JOHN W. LADENBURG

Pierce County

Prosecuting Attorney

By

DANIEL R. HAMILTON

Deputy Prosecutor

Attorneys for Petitioner

955 Tacoma Ave. S.

Suite 301

Tacoma, WA 98402

PH: (253) 798-7746

TABLE OF CONTENTS

APPENDIX “A”:

Ninth Circuit Opinion in

sylliford : )

OR aaa ee eee se See

APPENDIX “B”:

Ninth Circuit Order in

Gulliford v. Pierce County

APPENDIX “C”:

CONSTITUTIONAL PROVISIONS AND

STATUTES:

I. U.S. Const., Amend. I .

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

‘

HERBERT GULLIFORD,

Plaintiff-Appellant,

7.

PieRcE County, a municipality and

governmental subdivision of the No. 96-35614

State of Washington; JOHN’

SuieLps, Sheriff of Pierce County; D.C. No.

PauL THRASH, individually and as CV-94-05658-RJB

Pierce County Deputy Sheriff; OPINION

TERRILL Larson, individually and

as Pierce County Deputy Sheriff;

P. DONNELLY, individually, and as

Pierce County Deputy Sheriff,

Defendants-Appellees.

aall

Appeal from the United States District Court

for the Western District of Washington

Robert J. Bryan, District Judge, Presiding

Argued and Submitted

November 7, 1997—Seattle, Washington

Filed February 27, 1998

Before: Betty B. Fletcher and Diarmuid F. O’Scanniain,

Circuit Judges, and William W Schwarzer,* District Judge.

Opinion by Judge Fletcher; Partial Concurrence and

Partial Dissent by Judge O’Scannlain

*Honorable William W Schwarzer, Senior United States District Judge

for the Northern District of California, sitting by designation.

1611

aja

Avpendix "A"

1612 GULLIFORD v. PiERcE CouNTY

SUMMARY

Civil Litigation and Procedure/Appeals

The court of appeals affirmed a judgment of the district

court in part and reversed in part. The court held that in a fed-

eral civil action, a legally correct proposed jury instruction

may serve as an objection to the instruction actually given by

the district court for the purpose of preserving the issue on

appeal.

When deputies of appellee Pierce County, Washington’s

Sheriff's Department attempted to disperse a group of tres-

passers on a private island, appellant Herbert Gulliford sug-

gested that the officers “hop on the ferry” and leave. One of

the deputies, appellee Paul Thrash, placed Gulliford under

arrest for obstructing a public servant in violation of Wash-

ington law. Two other deputies helped Thrash subdue Gulli-

ford with pepper spray and the application of physical force

when he passively resisted arrest.

No charges were ever filed against Gulliford. He brought

a federal civil rights action against Thrash, the other deputies,

Pierce County, and appellee Sheriff John Shields, alleging

wrongful arrest and use of excessive force in violation of his

First, Fourth, and Fourteenth Amendment rights.

At trial, the district court rejected Gulliford’s proposed jury

instruction on the issue of probable cause to arrest, which cor-

rectly stated that the First Amendment protects the right of

citizens to verbally oppose and/or challenge police action, so

long as it does not involve a threat or fighting words. The par-

ties also discussed jury instructions off the record in cham-

bers.

On the issue of probable cause to arrest, the district court

gave Jury Instruction Number 15, which stated that a citizen

has the right to verbally oppose and/or challenge police action

GULLIFORD v. Prerce County 1613

without risking arrest, so long as it does not “hinder, delay, or

obstruct” a public servant in the discharge of the public ser-

vant’s powers or duties. Gulliford objected to this instruction

in open court. The court also gave Jury Instruction Number

14, which was based on federal law, and described the scope

of an individual’s limited right to resist an arrest made with-

out probable cause.

The jury returned a defense verdict.

On appeal, Gulliford contended that Jury Instructions 14

and 15 were erroneous. He faulted Instruction 15 for failing

to state that verbal protests or challenges to the police are per-

mitted, even if they knowingly hinder, delay, or obstruct the

police. Citing a Washington case, Gulliford asserted that

Instruction Number 14 was improper because it was based on

federal law, rather than the law of Washington State.

Pierce County countered that Gulliford was barred under

Fed. R. Civ. P. 51 from attacking Instruction 15 on appeal,

because he failed properly to object at trial by specifying the

First Amendment’s claimed effect on probable cause. Rule 51

provides that a party may not assign as error the giving or fail-

ure to give a jury instruction unless the party objects before

the jury retires to begin deliberation, stating distinctly the

matter objected to and the grounds of the objection. The

County also contended that Thrash was entitled to qualified

immunity on the wrongful arrest claim, and that all the depu-

ties were entitled to qualified immunity on Gulliford’s exces-

sive force claim.

[1] It is the responsibility of litigants to ensure compliance

with Rule 51, which the Ninth Circuit has interpreted

“strictly.” However, the Ninth Circuit has recognized a lim-

ited exception to the strict interpretation of Rule 51: where the

district court is aware of the party’s concerns with an instruc-

tion, and further objection would be unavailing, a futile for-

mal objection will not be required. Such an objection is a

1614 GULLIFORD v. Prerce County

pointless formality when (1) throughout the trial the party

argued the disputed matter with the court; (2) it is clear from

the record that the court knew the party’s grounds for dis-

agreement with the instruction; and (3) the party offered an

alternative instruction.

[2] Gulliford met the requirements of the “pointless

formality” test. [3] Gulliford’s proposed instruction was an

accurate statement of the law that should have brought to the

court’s attention the failure of the general charge to ade-

quately address the issue of probabie cause. Such a proposed

instruction would be sufficient despite the party’s failure to

object to the instructions as given. Not only did Gulliford pro-

pose an alternative instruction, he objected in open court to

Instruction Number 15, albeit in less specific terms, and addi-

tional discussions regarding the jury instructions occurred off

the record in chambers. The district court knew of Gulliford’s

grounds for disagreement. The proposed probable cause

instruction served as an objection to the instruction given to

the jury. As a result, Gulliford was not precluded from raising

his objection to Instruction Number 15 on appeal.

[4] The First Amendment protects verbal criticism, chal-

lenges, and profanity directed at police officers unless the

speech is shown likely to produce a clear and present danger

of a serious substantive evil that rises far above public incon-

venience, annoyance, or unrest. [5] Instruction Number 15

misstated the law, or at best was misleading, since it did not

state that under the First Amendment an individual cannot be

arrested for mere speech unless the speech constitutes

“fighting words.” Instruction 15 was impermissibly mislead-

ing, warranting reversal unless the error was harmless.

[6] In a civil case, if a jury instruction is erroneous, the

court of appeal will reverse the judgment unless the error is

more probably than not harmless. In this case, the jury more

probably than not found that Deputy Thrash had probable

Cause to arrest Gulliford based on his words alone, because

GULLIFORD v. PrErcE County 1615

that is all that Gulliford did—he spoke. The words were not

“fighting words.” Accordingly it was necessary to reverse and

remand for a new trial.

[7] The Washington state case Gulliford cited states that a

person being illegally arrested may use reasonable and pro-

portional force to resist the arrest. This “reasonable and

proportional” standard is to all appearances identical to the

one in Instruction Number 14. [8] Accordingly, the district

court did not err in instructing the jury under federal law

rather than Washington State law with regard to Gulliford’s

claim that the arresting officers used excessive force.

[9] Pierce County neglected to explain why it did not cross-

appeal from the district court’s denial of qualified immunity

from Gulliford’s wrongful arrest and excessive force claims.

[10] An appellee who fails to file a cross-appeal cannot attack

a judgment with a view toward enlarging its own rights. [11]

Even if Pierce County had cross-appealed, it did not appear

that the district court erred in denying the officials qualified

immunity.

Judge O’Scannlain dissented in part, concluding that the

judgment should have been affirmed because Gulliford’s trial

objection to Instruction Number 15 did not address the issue

of his Fourth Amendment right against arrest without proba-

ble cause.

COUNSEL

Joel Feldman, Lakewood, Washington, for the plaintiff-

appellant.

Daniel Hamilton, Tacoma, Washington, for the defendants-

appellees.

1616 GULLIFORD v. Pierce County

OPINION

FLETCHER, Circuit Judge:

Herbert Gulliford appeals the judgment entered following

a jury trial in his 42 U.S.C. § 1983 action against Pierce

County and various law enforcement officials alleging that his

constitutional rights were violated when he was arrested for

obstructing a public servant and resisting arrest. Gulliford

contends that the district court erred in its instructions to the

jury regarding his wrongful arrest and excessive force claims.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm

in part, reverse in part, and remand for a new trial.

I.

On the evening of September 6, 1992, a group of individu-

als were gathered around a fire on the north beach of Herron

Island, a small privately owned island located just within the

borders of Pierce County, Washington, west of Key Penin-

sula. At about 9:20 p.m. that night, the Pierce County Sher-

iffs Department (“PCSD”) received a call that someone in

the environs of the group had threatened a woman’s family.

About two hours later, the PCSD received a report that “J.D.”,

a member of the group gathered on the beach, had threatened

a firefighter who attempted to extinguish the group’s fire. In

response, the three named deputy sheriffs, Thrash, Larson and

Donnelly, were dispatched to the island to arrest J.D. and

extinguish the fire.

Upon arriving on the island, the deputies were informed

that J.D. had gone home. Deputy Thrash told the group, “This

party is over, people,” but none of the members left the beach.

In response to Deputy Thrash’s next statement that “I’m tired

of this. This is a waste of government . . . .” Gulliford replied,

“Then why don’t you hop on the ferry, hop on the ferry and

go back.” Deputy Thrash then maneuvered through the crowd,

grabbed Gulliford from behind, and placed him under arrest

SAE Noe int Eten RP Sie VLE ob ge ary)!

GULLIFORD v. PrercE County 1617

for obstructing a pudiic servant in violation of Wash. Rev.

Code. § 9A.76.020."

At this point, Gulliford intentionally fell to a sitting posi-

tion and refused to comply with orders to stand and put his

hands behind his back. The deputies grabbed Gulliford’s

arms, put him in a “hair hold,” and placed a knee in his back.

Although Gulliford did not kick out at or otherwise assault the

officers, he continued passively to resist arrest. Deputies Lar-

son and Donnelly then sprayed pepper spray in Gulliford’s

face. The deputies were eventually able to get one of Gulli-

ford’s wrists in handcuffs, and, after a second spraying in the

face with pepper spray, Gulliford ceased resisting. Gulliford

was additionally cited for resisting arrest pursuant to Wash.

Rev. Code § 9A.76.040.?

Gulliford was taken to the Pierce County Jail and held there

until he posted bond. The deputies never claimed that they

thought that Gulliford was “J.D.”, and no charges were ever

filed against Gulliford. Gulliford contends that he suffered

permanent injuries as a result of the officers’ use of force in

effecting the arrest.

Claiming that he was wrongfully arrested and that the dep-

uties used excessive force in violation of his First, Fourth and

Fourteenth Amendment rights, Gulliford filed this § 1983

action against Pierce County, Pierce County Sheriff John

Shields, and, in their individual as well as official capacities,

the three deputies, Thrash, Larson and Donnelly. The claims

"Wash. Rev. Code § 9A.76.020 provides in pertinent part: “Every per-

son who . . . (3) shall knowingly hinder, delay, or obstruct any public ser-

vant in the discharge of his official powers or duties; shall be guilty of a

misdemeanor.”

*Wash. Rev. Code § 9A.76.040 provides: “(1) A person is guilty of

resisting arrest if he intentionally prevents or attempts to prevent a peace

officer from lawfully arresting him. (2) Resisting arrest is a

misdemeanor.”

1618 GULLIFORD v. PrerceE CouNTY

against Pierce County, however, were dismissed by stipula-

tion of the parties on October 30, 1995.

The case was tried for three weeks before an eight person

jury, although the wrongful arrest claims as to Larson and

Donnelly were dismissed on defendant’s motion for a directed

verdict and were never submitted to the jury. The jury

retumed verdicts for Deputy Thrash on the wrongful arrest

claim and for all defendants on the excessive force claim.

Il.

Gulliford contends that two of the instructions given to the

jury were erroneous. “Jury instructions must be formulated so

that they fairly and adequately cover the issues presented, cor-

rectly state the law, and are not misleading.” Chuman v.

Wright, 76 F.3d 292, 294 (9th Cir. 1996). When the alleged

error is in the formulation of the instructions, the instructions

are to be considered as a whole and an abuse of discretion

standard is applied to determine if they are misleading or

inadequate. Masson v. New Yorker Magazine, Inc., 85 F.3d

1394, 1397 (9th Cir. 1996). However, when the claim is that

the trial court misstated the elements that must be proved at

trial, the reviewing court must view the issue as one of law

and review the instruction de novo. Fireman’s Fund Ins. Cos.

v. Alaskan Pride Partnership, 106 F.3d 1465, 1469 (9th Cir.

1997).

A.

Jury Instruction Number 15 stated in pertinent part:

The First Amendment protects the nght of citizens to

verbally oppose and/or challenge police action with-

*The references in this opinion to arguments by “Pierce County” refer

to Pierce County Deputy Prosecuting Attorney Daniel R. Hamilton, who

argued the instant appeal on behalf of the Pierce County Deputy Sheriffs.

Dis.

GULLIFORD v. PIERCE COUNTY 1619

out risking arrest so long as that challenge does not

knowingly hinder, delay, or obstruct any public ser-

vant in the discharge of the public servant’s official

powers or duties.

On appeal, Gulliford claims that his arrest for Obstructing

a Public Servant was without probable cause. He contends

that Jury Instruction Number 15 does not state a crime

because verbal protests or challenges to the police are permit-

ted, even if they knowingly hinder, delay or obstruct the

police. To be criminal, the words must be fighting words. He

makes the further point that § 9A.76.020, which prohibits hin-

dering, delaying or obstructing a public servant, criminalizes

conduct only, not words. He is correct.

As a preliminary matter, Pierce County argues that Gulli-

ford is precluded from raising this issue on appeal because he

failed to object properly at trial. Specifically, Pierce County

contends that the record of Gulliford’s exceptions to Jury

Instruction Number 15 “is devoid of any mention of the First

Amendment’s claimed effect on probable cause... .”*

[1] Federal Rule of Civil Procedure 51 provides that “No

party may assign as error the giving or the failure to give an

instruction unless that party objects thereto before the jury

retires to consider its verdict, stating distinctly the matter

objected to and the grounds of the objection.” It is the respon-

sibility of the litigants to ensure compliance with FRCP 51,

and we have generally interpreted that rule “strictly.”

McGonigle v. Combs, 968 F.2d 810, 823 (9th Cir.), cert. dis-

“Pierce County asserts that the entirety of Gulliford’s argument to the

District Court regarding Jury Instruction Number 15 was as follows:

It does not include a claim for specific First Amendment viola-

tion, and as we indicated in our trial brief and in discussion previ-

ously with the court, we believe that both the First Amendment

and the Fourth Amendment are implicated and that a violation of

either would give rise to a cause of action.

1620 GULLIFORD v. Pierce County

missed, 506 U.S. 948 (1992). However, we have recognized

“a limited exception” to the strict interpretation of FRCP 51:

“ “Where the district court is aware of the party’s concerns

with an instruction, and further objection would be unavail-

ing, we will not require a futile formal objection.’ ” Jd.

(citation omitted). Specifically, we have held that such an

objection is a pointless formality “ “when (1) throughout the

trial the party argued the disputed matter with the court, (2)

it is Clear from the record that the court knew the party’s

grounds for disagreement with the instruction, and (3) the

party offered an alternative instruction.’” Glover v. BIC

Corp., 6 F.3d 1318, 1326 (9th Cir. 1993) (quoting United

States v. Payne, 944 F.2d 1458, 1464 (9th Cir. 1991), cert.

denied, 503 U.S. 975 (1992)).

[2] Gulliford meets the requirements of the “pointless

formality” test. The instruction he proposed (No. 31) stated:

Defendants claim that they had probable cause to

arrest plaintiff for obstructing a police officer in the

conduct of his lawful duties. The First Amendment

protects the right of citizens to verbally opposed and/

or challenge police action so long as that challenge

does not involve a threat or fighting words.

* * *

City of Houston vy. Hill,

482 U.S. 451, 462, 107 S.Ct. 2502, 2510 (1987)

[3] As in Glover v. BIC Corp., Gulliford’s proposed

instruction was an “accurate statement[ ] of the law which

should have brought to the court’s attention the failure of the

general charge to adequately address the issue of” probable

cause. 6 F.3d at 1327. In Glover, we held that such a proposed

instruction was sufficient despite the party’s failure to object

to instructions as given. /d. Here, in contrast to Glover, not

only did Gulliford propose an alternative jury instruction, he

:

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GULLIFORD v. Prerce COUNTY 1621

also objected in open court to Jury Instruction Number 15,

albeit in less specific terms, and the parties concede that addi-

tional discussions regarding the jury instructions occurred off

the record in chambers.® We are thus satisfied that the district

court knew of Gulliford’s grounds for disagreement, and that,

on the instant record, the “proposed [probable cause] instruc-

tion[ ] will serve as an objection to the instructions given the

jury.” Id.; cf. United States v. Payne, 944 F.2d 1458, 1463-64

(9th Cir. 1991), cert. denied, 503 U.S. 975 (1992) (specific

objection not a “pointless formality” where it was clear from

the record that failure to give a presumption of innocence

instruction was due to simple oversight and counsel failed to

alert the court to the omission when it pointedly asked

whether there were any objections to the instructions read to

the jury). As a result, Gulliford is not precluded from raising

on appeal his objection to Jury Instruction Number ie Ny

5Pierce County cites Benigni v. City of Hemet, 879 F.2d 473, 475-76

(9th Cir. 1988), for the proposition that, notwithstanding Gulliford’s pro-

posed alternative jury instruction, his objection was not properly preserved

because “the trial court was not made aware of any specific concern with

the proposed instructions.” However, unlike Gulliford, the litigant in

Benigni made no oral objection or argument whatsoever at trial. /d. at 476.

Pierce County concedes that Gulliford by contrast did make an oral objec-

tion to Jury Instruction Number 15 specifically regarding the First Amend-

ment. Although the precise articulation of Gulliford’s First Amendment

argument was not as artfully presented in his oral objection as it was in

his alternative jury instruction, it was sufficient to give the court “an

opportunity to modify the instruction and incorporate the elements of the

. . . proposed instructions.” /d.

®Judge O’Scannlain’s partial dissent suggests that this case is controlled

by Grosvenor Properties Ltd. v. Southmark Corp., 896 F.2d 1149, 1152-

53 (9th Cir. 1990), in which we held that Southmark failed to comply with

the requirements of FRCP 5! notwithstanding the fact that Southmark

offered an alternative jury instruction. See infra at 1626, 1629-30. How-

ever, in contrast to the instant case, the alternative jury instruction in

Grosvenor failed “‘to state distinctly the matter objected to and the ground

of the objection as required by Rule 51.” 896 F.2d at 1153. Gulliford’s

proposed jury instruction, on the other hand, precisely articulated the mat-

ter objected to and the grounds of the objection, much like the alternative

1622 GULLIFORD v. Pierce County

[4] The Supreme Court has consistently held that the First

Amendment protects verbal criticism, challenges, and profan-

ity directed at police officers unless the speech is “ ‘shown

likely to produce a clear and present danger of a serious sub-

stantive evil that rises far above public inconvenience, annoy-

ance or unrest.’ ”’ City of Houston, Texas v. Hill, 482 U.S.

451, 461-63 (1987) (quoting Terminiello v. Chicago, 337 U.S.

1, 4 (1949)); see also Lewis v. City of New Orleans, 415 U.S.

130, 132-134 (1974),

In Hill, a case with facts substantially similar to those

before us, the appellee shouted at police officers who had

approached his friend to “pick on somebody your own size.”

Id. at 454. Hill was arrested under a city ordinance that pro-

hibited “oppos[ing], molest[ing], abus[ing] or interrupt[ing]

any policeman in the execution of his duty.” Id. at 455.

Although Hill was acquitted, he brought an action seeking to

strike the ordinance as unconstitutional on its face. Jd. The

Supreme Court agreed, emphasizing that “[t]he Constitution

does not allow such speech to be made a crime,” and that

“[t]he freedom of individuals verbally to oppose or challenge

police action without thereby risking arrest is one of the prin-

cipal characteristics by which we distinguish a free nation

from a police state.” Jd. at 462-63.

Similarly, in Lewis v. City of New Orleans, as later

recounted in Hill, the appellant yelled obscenities at an officer

who had asked appellant’s husband to produce his driver’s

license. Id. at 461. Lewis was convicted under a municipal

ordinance that made it a crime “for any person wantonly to

curse or revile or to use obscene or opprobious language

instruction in Brown v. Avemco Inv. Corp., 603 F.2d 1367 (9th Cir. 1979),

cited with approval in Grosvenor, 896 F.2d at 1153. As we noted in

Grosvenor, the plaintiff in Brown adequately complied with the require-

ments of FRCP 51 because his proposed instruction was sufficiently clear

to focus the issue for the jury. See id.

GULLIFORD v. PrercE County 1623

MO AAO Sint Sek

A ROTA LER TE il RGAE. AS SLR RM LE AE TMI SNE ind MS aE BR las spn WD died

CY en thn Date he clead Beatin eka leas

toward or with reference to any member of the city police

while in the actual performance of his duty.” Lewis, 415 U.S.

at 132. The Supreme Court vacated the conviction and invali-

dated the ordinance as facially overbroad, explaining that the

ordinance was not limited in scope to “fighting words” that

“ “by their very utterance inflict injury or tend to incite an

immediate breach of the peace.’ ” Jd. at 133 (quoting Gooding

v. Wilson, 405 U.S. 518, 525 (1972)).

Relying, inter alia, on the Supreme Court’s decision in

Hill, we ruled in Mackinney vy. Nielsen that expressive con-

duct such as writing with chalk on the sidewalk does not itself

create probable cause for arrest, and that verbally protesting

an officer’s order to stop writing is protected by the First

Amendment. See 69 F.3d 1002, 1007-08 (9th Cir. 1995). The

decision in Mackinney also relied on Duran v. City of Doug-

las, in which we emphasized that “criticism of the police is

not a crime,” and that “while police, no less than anyone else,

may resent having obscene words and gestures directed at

them, they may not exercise the awesome power at their dis-

posal to punish individuals for conduct that is not merely law-

ful but protected by the First Amendment.” 904 F.2d 1372,

1377, 1378 (9th Cir. 1990).

[5] The facts before us are indistinguishable from those in

Hill and its progeny. If anything, Gulliford’s suggestion that

Deputy Thrash “hop on the ferry”” is less provocative than the

’Pierce County contends that Gulliford’s statement included profanity.

However, the testimony of the PCSD deputies is somewhat inconsistent on

this point. Deputy Thrash wrote in his report that Gulliford said “Then

why don’t you get the fuck off the island.” Deputy Donnelly wrote in his

report that “A person on the far side of the fire said why don’t you leave

the fuckin[g] island. [Deputy Thrash] walked around the fire and grabbed

Mr. Gulliford from behind and pulled him over backwards.” Finally, Dep-

uty Larson wrote that “Thrash told them to leave and told them we were

tired of coming over to stop these problems, no one moved and a male

voice to my right said something to the effect of ‘Then get the hell off the

island.’ Thrash walked over and grabbed the only male around, he had

been crouching down between two women when he said it. Thrash told

him he was under arrest . . . .” In any event, whether Gulliford may have

used profanity does not affect the analysis. ~

1624 GULLIFORD v. Prerce County

“opprobious language” found in those cases. Jury Instruction

Number 15 misstates the law or is at best misleading since it

does not state that under the First Amendment an individual

cannot be arrested for mere speech unless the speech consti-

tutes “fighting words.” See Hill, 482 U.S. at 465-67; see also

Mackinney, 69 F.3d at 1007-08; Duran, 904 F.2d at 1377-78.

We agree that Jury Instruction Number 15 was impermissibly

misleading, warranting reversal unless the error was harmless.

[6} In a civil case, “[i]f a jury instruction is erroneous, we

will reverse the judgment unless the error is more probably

than not harmless.” Chuman v. Wright, 76 F.3d 292, 294 (9th

Cir. 1996). Here, the jury more probably than not found that

Deputy Thrash had probable cause to arrest Gulliford based

on his words alone because that is all that Gulliford did—he

spoke. As a matter of law, the words spoken were not

“fighting words.” Accordingly, we reverse and remand for a

new trial on this claim.

B.

Jury Instruction Number -14 stated:

An individual has a limited right to offer reasonable

resistance to an arrest made without probable cause,

but only if the arrest is the product of the officer’s

bad faith, provocative conduct, or personal frolic. In

such a case, the amount of force used to resist an

unlawful arrest must be reasonable and proportioned

to the injury attempted upon the arrestee.

On appeal, Gulliford argues that this jury instruction was

erroneously based on federal law rather than Washington

State law.

[7] The objection is not well taken. We need not go beyond

the observation that the Washington law on this point is sub-

stantially indistinguishable from the federal law. The Wash-

baat ae oe

GULLIFORD v. PrERcE COUNTY 1625

ee eae Le Oe eee ee a eae

ington state case quoted by Gulliford states that a “person

being illegally arrested may use reasonable and proportional

force to resist the arrest.” State v. McCrorey, 851 P.2d 1234

(Wash. Ct. App. 1993) (citing State v. Hornaday, 713 P.2d 71

(Wash. 1986)). This “reasonable and proportional” standard is

to all appearances identical to the one found in Jury Instruc-

tion 14.

[8] Accordingly, the district court did not err in instructing

the jury under federal rather than Washington State law with

regard to Gulliford’s claim that the arresting officers used

excessive force.

Ii.

[9] Pierce County argues on appeal that Deputy Thrash is

entitled to qualified immunity from Gulliford’s wrongful

arrest claim and that all of the deputies are entitled to quali-

fied immunity from Gulliford’s excessive force claim. How-

ever, Pierce County neglects to explain why it did not cross-

appeal on this issue from the district court’s denial of its

motion seeking qualified immunity.

[10] As we recently reiterated, “[a]n appellee who fails to

file a cross-appeal cannot attack a judgment with a view

toward enlarging its own nights.” Spurlock v. FBI, 69 F.3d

1010, 1018 (9th Cir. 1995) (citing Turpen v. City of Corvallis,

26 F.3d 978, 980 (9th Cir.), cert. denied, 513 U.S. 963

(1994)).

[11] Moreover, even if Pierce County had cross-appealed,

it does not appear that the district court erred in denying the

officials qualified immunity. As we explained in Mackinney

v. Nielsen, “the Supreme Court instructed courts ruling on

qualified immunity to examine whether the ‘contours of the

right’ at stake in the action are sufficiently clear so that a rea-

sonable official could understand that he or she is violating

1626 GULLIFOoRD v. Prerce County

the right.” 69 F.3d 1002, 1006-07 (9th Cir. 1995). We ulti-

mately concluded in that case that

Police officers have a difficult job, and they deserve

the respect of their community. But they in turn must

respect the right of individuals in that community to

question their government and the role of the police.

A reasonable officer should have known that Mac-

Kinney was simply exercising that right.

Id. at 1007.

AFFIRMED in part, REVERSED in part, and

REMANDED for a new trial. Appellee to bear costs.

O’SCANNLAIN, Circuit Judge, concurring in part and dis-

senting in part.

I would affirm the judgment of the district court. Regretta-

bly, I cannot join Section II.A’s discussion of the jury instruc-

tion on verbal opposition to police action, which, in my view,

threatens “[t}his court[’s] .. . reputation as the strictest

enforcer of Rule 51,” Hammer v. Gross, 932 F.2d 842, 847

(9th Cir. 1991), and creates a direct intra-circuit conflict with

Grosvenor Properties Ltd. v. Southmark Corp., 896 F.2d 1149

(9th Cir. 1990). Therefore, I respectfully dissent and would

not reach the question of qualified immunity, which the

majority discusses in Part III.

I

Federal Rule of Civil Procedure 51 states:

No party may assign as error the giving or the failure

to give an instruction unless that party objects

thereto before the jury retires to consider its verdict,

FEE ee ee ee ee OM ee ee i isch wie eee ae 2. .

GULLIFORD v. Prerce County 1627

Stating distinctly the matter objected to and the

grounds of the objection.

Fed. R. Civ. P. 51 (emphasis added). Our court has

“interpreted this rule strictly and ha[s] stated that, ‘[i]n a civil

case, we May not review a jury instruction in the absence of

a proper objection.’ ” McGonigle v. Combs, 968 F.2d 810,

823 (9th Cir. 1992) (quoting Larez v. City of Los Angeles, 946

F.2d 630, 638 (9th Cir. 1991)); see also 9 C. Wright & A.

Miller, Federal Practice and Procedure § 2558, at 674 (1971)

(“[T]he Ninth Circuit stands alone in reading Civil Rule 51

literally and denying that there is any power to reverse for

plain error in an unobjected-to instruction in a civil case.’’)

The party objecting to the instruction must bring “into focus

the precise nature of the alleged error in the district court’s

instruction.” McGonigle, 968 F.2d at 824 (emphasis added).

Gulliford now argues that he was arrested for obstructing

a police officer without probable cause in violation of the

Fourth Amendment. He does not claim on appeal that his First

Amendment right verbally to hinder, delay, or obstruct the

police was also violated.

Gulliford correctly argues before this court that jury

instruction 15’ was flawed because it failed to inform the jury

that the police lacked probable cause to arrest him for speech

that “knowingly hinder[ed], delay{ed], or obstruct{[ed]” the

police but did not include “fighting words [ Jor . . . obscene

or opprobrious language.” Houston v. Hill, 482 U.S. 451, 461

(1987). Gulliford’s objection to jury instruction 15 at trial

rested on an entirely different ground. Gulliford’s argument

was as follows:

"Jury instruction 15 stated:

The First Amendment protects the right of citizens to verbally

oppose and/or challenge police action without nsking arrest so

long as that challenge does not knowingly hinder, delay, or

obstruct any public servant in the discharge of the public ser-

vant’s official powers or duties.

1628 GULLIFORD v. PrercE County

[The instruction] does not include a claim for a spe-

cific First Amendment violation, and as we indicated

in our trial brief and in discussions previously with

the court, we believe that both the First Amendment

and the Fourth Amendment are implicated and that

a violation of either would give rise to a cause of

action.

In other words, Gulliford argued at trial that instruction 15 did

not separately address his (now abandoned) claim that his

First Amendment rights had been violated as well. Gulliford’s

(perhaps incorrect) argument was that the instruction was

exclusively concerned with his Fourth Amendment claim —

not that the instruction misstated the elements of that claim.

Of course, the contours of Gulliford’s Fourth Amendment

claim are shaped both by Wash. Rev. Code § 9A.76.020 —

the Washington statute that prohibits obstruction of law

enforcement officers — and by the First Amendment. Section

9A.76.020 provides: “Every person who . . . (3) shall know-

ingly hinder, delay, or obstruct any public servant in the dis-

charge of his official powers or duties; shall be guilty of a

misdemeanor.” Meanwhile, the First Amendment gives indi-

viduals the right to verbally obstruct public servants as long

as they do not use “fighting words [ Jor . . . obscene or oppro-

brious language.” Houston v. Hill, 482 U.S. 451, 462 (1987).

Viewed in conjunction with Wash. Rev. Code § 9A.76.020,

the First Amendment helps to define Gulliford’s right under

the Fourth Amendment not to be arrested for obstructing the

police without probable cause.

However, Gulliford’s objection at trial to jury instruction

15 had nothing to do with his rights under the Fourth Amend-

ment. Rather, Gulliford wanted the district court to instruct

the jury separately regarding an alleged violation of his First

Amendment right to verbally obstruct police officers. Because

Gulliford failed to “stat{e] distinctly the matter objected to

and the grounds of [his] objection [at trial],” Fed. R. Civ. P.

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— GULLIFORD v. Prerce County 1629

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51 (emphasis added), he is precluded from raising his Fourth

Amendment argument on appeal.

I]

The majority invokes the “pointless formality” exception to

Rule 51. As we explained in United States v. Payne, 944 F.2d

1458 (9th Cir. 1991), “an objection may be a ‘pointless for-

mality’ when (1) throughout the trial the party argued the dis-

puted matter with the court, (2) it is clear from the record that

the court knew the party’s grounds for disagreement with the

instruction, and (3) the party offered an alternative

instruction.” Jd. at 1464.

It is undisputed by the parties that Gulliford offered an

alternative instruction. Gulliford has failed to demonstrate,

however, either that “throughout the trial [he] argued the dis-

puted matter with the court,” or that “it is clear from the

record that the court knew [Gulliford’s] grounds for disagree-

ment with the instruction.” Jd. (emphasis added). Apart from

noting that Gulliford submitted an alternative instruction

(thereby satisfying only the third element of the pointless for-

mality test), the majority does not point to anything in the trial

record to support its conclusion that the pointless formality

exception to Rule 51 applies here.

In Grosvenor Properties Ltd. v. Southmark Corp., 896 F.2d

1149 (9th Cir. 1990), the defendants submitted an alternative

jury instruction that was rejected by the district court. See id.

at 1152. At a sidebar conference called to consider the

instructions, the defendants stated that their proposed instruc-

tion had not been given. See id. The district court responded

that it had rejected the instruction and that it was unnecessary

for counsel to repeat previously submitted instructions or

objections. See id. We held that such a “sequence of events

is not sufficient to constitute a sufficient objection to the

instructions that were given, as Rule 51 is applied in this

circuit.” /d. If the defendants in Grosvenor did not succeed in

1630 GULLIFORD v. Pierce County

preserving their objection despite complaining that their pro-

posed instruction had not been given, then certainly Gulliford,

who did nothing to call attention to the district court’s rejec-

tion of his instruction, failed to preserve his objection.

In an attempt to distinguish Grosvenor, the majority relies

upon a sentence from that opinion. See Majority Opinion at

1621 n.6 (“However, in contrast to the instant case, the alter-

native jury instruction in Grosvenor failed ‘to state distinctly

the matter objected to and the ground of the objection as

required by Rule 51.’”) (quoting Grosvenor, 896 F.2d at

1153). The relevant passage in Grosvenor, however, States, in

full:

Southmark argues that it made the required specific

objection to the instruction that feiled to state that

termination of the joint venture would end fiduciary

duty, and that it submitted alternative theories of lia-

bility to the jury by way of special verdict questions.

It contends that it did so by its submission of pro-

posed jury instruction 22. In addition, at a sidebar

conference called to consider corrections and addi-

tions to the instructions, Southmark’s counsel stated

that instruction 22 had not been given and the court

responded that it had rejected that instruction. At that

Same conference the court noted that it was not nec-

essary for counsel to repeat previously submitted

instructions or objections.

However, this sequence of events is not sufficient

to constitute a sufficient objection to the instructions

that were given, as Rule 51 is applied in this circuit.

This court has held that remarks made by counsel in

chambers, discussion of law in pretrial memoranda

and mere submission of proposed instructions did

not clearly show that the issue was focused before

the court.

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GULLIFORD v. Pierce County 1631

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In addition, an examination of proposed instruc-

tion 22 suggests that it was not sufficient to state dis-

tinctly the matter objected to and the ground of the

objection as required by Rule 51.

Id. at 1152-53 (internal citations omitted). As the above pas-

Sage demonstrates, our holding in Grosvenor, that a

“sequence of events” which includes the submission of an

alternative jury instruction does not “constitute a sufficient

objection to the instructions that were given,” did not turn on

whether that alternative instruction “state[{d] distinctly the

matter objected to and the ground of the objection.” Jd.

Although we observed (“addition[ally]”) in Grosvenor that

the alternative instruction was unclear, id. at 1153 (citing

Brown v. Avemco Inv. Corp., 603 F.2d 1367, 1371 (9th Cir.

1979)), the clarity of the alternative instruction was irrelevant

to Grosvenor’s analysis of the “sufficien[{cy]” of the relevant

“sequence of events.” Jd. at 1152. Far from distinguishing

Grosvenor, the majority’s discussion of that case demon-

Strates why the majority opinion is in direct conflict with it.

I respectfully dissent.

j

;

Titan bao

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HERBERT GULLIFORD

Plaintiff-Appellee,

Vv.

PIERCE COUNTY, a muni-

cipality and govern-

mental subdivision of

the State of Washington

JOHN SHIELDS, Sheriff

of Pierce County; PAUL

THRASH, individually

and as Pierce County

Deputy Sheriff; TERRILL

LARSON, individually

and as Pierce County

Deputy Sheriff; P.

DONNELLY, individually,

and as Pierce County

Deputy Sheriff,

Defendants~Appellees.

No. 96-35615

D.C. No.

CV-94-05658-RJB

ORDER

ee i ee ee ee ee ee i ee i ee ee ee ee ee ee ee ee ee”

Before: FLETCHER and O'SCANNLAIN, Cir-

cuit Judges, and SCHWARZER, *

District Judge.

Judges Fletcher and Schwarzer vote

to deny the petition for rehearing.

Judge O'Scannlain would grant rehearing.

Judge Fletcher votes to deny the

4

Appendix “B”

suggestion for rehearing en banc and

Judge Schwarzer so recommends. Judge

O'Scannlain would grant the rehearing en

banc.

The full court has been advised of

the suggestion for an en banc rehearing,

and no judge of the court has requested

a vote on the suggestion for rehearing

en banc. Fed. R. App. P. 35.

The petition for rehearing is denied

and the suggestion for rehearing en banc

is rejected.

* Honorable William W Schwarzer,

Senior United States District Judge for

the Northern District of California,

sitting by designation.

+e

Appendix “B”

a ee ee ee tli ar me

CONSTITUTIONAL PROVISIONS AND STATUTES

I.

Il.

U.S. Const. Amend. I

Congress shall make no law re-

specting an establishment of reli-

gion, or prohibiting the free exer

cise thereof; or abridging the free-

dom of speech, or of the press; or

the right of the people peaceably to

assemble, and to petition the Gov-

ernment for a redress of grievances.

U.S. Const. Amend. IV

The right of the people to be se~

cure in their persons, houses, pa~

pers, and effects, against unreason-

able searches and seizures, shall

not be violated, and no Warrants

shall issue, but upon probable

cause, supported by Oath or affirma-

tion, and particularly describing

the place to be searched, and the

persons or things to be seized.

a

Appendix “C”

IIl.

IV.

42 U.S.C. § 1983:

Every person who, under color of any

statute, ordinance, regulation, cus-

tom, or usage, of any State or Ter-

ritory 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 Dis-

trict of Columbia shall be consi-

dered to be a statute of the Dis-

trict of Columbia.

RCW 9A.76.020 Obstructing a law

enforcement officer.

(1) A person is guilty of ob-

structing a law enforcement officer

if the person willfully hinders, de-

lays, or obstructs any law enforce-

ment officer in the discharge of his

or her official powers or duties.

(2) “Law enforcement officer”

means any general authority, limited

authority, or specially commissioned

Washington peace officer or federal

peace officer as those terms are de-

fined in RCW 10.93.020, and other

Re

Appendix “C”

iD LL RRR He ELE

Vv.

public officers who are responsible

for enforcement of fire, building,

zoning, and life and safety codes.

(3) Obstructing a law enforcement

officer is a gross misdemeanor.

[1995 c 285 § 33; 1994 c 196 § 1;

1975 lst ex.s. c 260 § 9A.76.020.]

ace 9) ae pads —

(1) A person is guilty of failure

to disperse if:

(a) He congregates with a group

of three or more other persons and

there are acts of conduct within

that group which create a substan-

tial risk of causing injury to any

person, or substantial harm to prop-

erty; and

(b) He refuses or fails to dis-~-

perse when ordered to do so by a

peace officer or other public ser-

vant engaged in enforcing or execut-

ing the law.

(2) Failure to disperse is a mis-

demeanor. [1975 lst ex.s. c 260 §

9A.84.020. ]

cs

Appendix “C”