Filing 920071017


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FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ELIZABETH M. ACOSTA, Plaintiff-Appellant, v. GARY HILL; JOSEPH KROUSS; ERIC STAFFORD; RAPHAEL CIMMARUSTI; ELITE SHOW SERVICES; VLADIMIR ATABEKIAN; DONALD WILLIAMS; CITY OF SAN DIEGO, Defendants-Appellees. No. 05-56575 D.C. No. CV-01-01973-LAB OPINION Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding Argued and Submitted July 13, 2007--Pasadena, California Filed October 17, 2007 Before: Alex Kozinski and Richard C. Tallman, Circuit Judges, and Brian E. Sandoval,* District Judge. Opinion by Judge Kozinski *The Honorable Brian E. Sandoval, United States District Judge for the District of Nevada, sitting by designation. 14069 14070 ACOSTA v. HILL COUNSEL Meir J. Westreich, Pasadena, California, for the plaintiffappellant. ACOSTA v. HILL 14071 Robert J. Walters, Deputy City Attorney; Michael J. Aguirre, City Attorney, City of San Diego, San Diego, California, for defendants-appellees City of San Diego, Gary Hill, Joseph Krouss and Eric Stafford. Matthew R. Rutherford, Law Offices of Matthew R. Rutherford, Lemon Grove, California, for defendants-appellees Elite Show Services, Vladimir Atabekian and Donald Williams. OPINION KOZINSKI, Circuit Judge: Bouncers physically removed Acosta from Murphy's Club, a bar in San Diego's Qualcomm Stadium. Stadium security was notified, and two security guards approached Acosta. She refused to show the guards identification or accompany them to the security office. San Diego police officers then intervened. Officer Hill told Acosta that she had been ejected from the stadium. After he told Acosta at least three times that she would be arrested if she didn't leave the stadium, Acosta kicked a security guard and Officer Hill. Officer Hill then placed her in a carotid restraint hold. Acosta became compliant without losing consciousness, and she was handcuffed. Soon, however, the rumbustious Acosta began kicking again, so Officer Hill slammed her to the ground and tied her legs together. She was then taken to the holding area by Officers Krouss and Stafford. Acosta filed a 42 U.S.C. 1983 claim against the security guards, police officers and the City of San Diego, alleging various constitutional violations including unconstitutional use of deadly force under the Fourth Amendment. The jury was given an excessive force instruction based on a reasonableness standard--but not a separate deadly force instruction. The jury found for defendants. Acosta appeals, arguing 14072 ACOSTA v. HILL that the jury should have been given a separate deadly force instruction. We have jurisdiction under 28 U.S.C. 1291. [1] Scott v. Harris, 127 S. Ct. 1769 (2007), forecloses Acosta's deadly force argument. Scott held that there is no special Fourth Amendment standard for unconstitutional deadly force. See id. at 1777-78. Instead, "all that matters is whether [the police officer's] actions were reasonable." Id. at 1778 (emphasis added). Here, the jury was given an excessive force instruction and found for Officer Hill; it must therefore have determined that the officer acted reasonably. Under Scott, that is the end of the inquiry. The district court didn't err by refusing to give a separate deadly force instruction. [2] We had previously held that "[a]n excessive force instruction is not a substitute for a . . . deadly force instruction." Monroe v. City of Phoenix, 248 F.3d 851, 859 (9th Cir. 2001). We reached this conclusion based on the observation that "the Supreme Court . . . established a special rule concerning deadly force." Id. at 860 (quoting Vera Cruz v. City of Escondido, 139 F.3d 659, 661 (9th Cir. 1997)). Scott explicitly contradicts that observation. 127 S. Ct. at 1777-78. Scott controls because it is "intervening Supreme Court authority" that is "clearly irreconcilable with our prior circuit authority." Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). Monroe's holding that an excessive force instruction based on the Fourth Amendment's reasonableness standard is not a substitute for a deadly force instruction is therefore overruled. See Miller, 335 F.3d at 900. Acosta's remaining arguments are addressed in the accompanying memorandum disposition. AFFIRMED.

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