Siano v. County of Sacramento, et al

Filing 88

DRAFT JURY INSTRUCTIONS AND VERDICT FORM, ADDITIONAL VOIR DIRE QUESTION ORDER signed by Judge Garland E. Burrell, Jr. on 11/13/09 attaching draft preliminary and closing jury instructions, a draft verdict form, and an additional voir dire question. Specific input on any proposed modification shall be filed as soon as possible. Counsel should seek to reach agreement before filing any modification. (Benson, A.)

1 2 3 4 5 6 7 8 JANET LORRAINE SIANO, 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ) ) Plaintiff, ) ) v. ) ) SACRAMENTO COUNTY DEPARTMENT ) OF PARKS AND RECREATION; TOM ) HOFSOMMER, individually and in) his official capacity as ) Ranger for the Sacramento ) County Department of Parks ) and Recreation; C. KEMP, ) individually and in his ) official capacity as Ranger ) for the Sacramento County ) Department of Parks and ) Recreation; and KATHLEEN ) UTLEY, individually and in her) official capacity as Ranger ) for the Sacramento County ) Department of Parks and ) Recreation, ) ) Defendants. ) ) 2:07-cv-01659-GEB-KJM DRAFT JURY INSTRUCTIONS AND VERDICT FORM; ADDITIONAL VOIR DIRE QUESTION IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Attached are draft preliminary and closing jury instructions, a draft verdict form, and an additional voir dire question. The attachments do not include Plaintiff's negligent

infliction of emotional distress claim because Plaintiff has not shown that tort can be alleged in this case. // // // Specific input on any proposed

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1 modification shall be filed as soon as possible. Counsel should seek 2 to reach agreement before filing any modification. 3 Dated: November 13, 2009 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GARLAND E. BURRELL, JR. United States District Judge

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DRAFT PRELIMINARY JURY INSTRUCTIONS

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1 2 Ladies and Gentlemen: 3

INSTRUCTION NO. 1

Now that you have been sworn, I will briefly tell you 4 something about your duties as jurors and give you some instructions. 5 At the end of the trial I will give you more detailed instructions, 6 and those instructions will control your deliberations. 7 It will be your duty to decide from the evidence what the 8 facts are. 9 hear the evidence, decide what the facts are, and then apply those 10 facts to the law which I will give to you. 11 your verdict. 12 with it or not. 13 You must not take anything I may say or do during the trial 14 as indicating what your verdict should be. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In doing so you must follow that law whether you agree That is how you will reach You, and you alone, are the judges of the facts. You will

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1 2 3 are consists of: 4 1. 5 2. 6 3. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

INSTRUCTION NO. 2 The evidence you are to consider in deciding what the facts

the sworn testimony of any witness; the exhibits that are received into evidence; and any facts to which the lawyers have agreed.

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1 2 3

INSTRUCTION NO. 3 Evidence may be direct or circumstantial. Direct evidence

is direct proof of a fact, such as testimony by a witness about what 4 that witness personally saw or heard or did. 5 is proof of one or more facts from which you could find another fact. 6 You should consider both kinds of evidence. 7 distinction between the weight to be given to either direct or 8 circumstantial evidence. 9 give any evidence. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 It is for you to decide how much weight to The law makes no Circumstantial evidence

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INSTRUCTION NO. 4 Some evidence may be admitted for a limited purpose only. When I instruct you that an item of evidence has been

4 admitted for a limited purpose, you must consider it only for that 5 limited purpose and for no other. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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INSTRUCTION NO. 5 In reaching your verdict, you may consider only the testimony and exhibits received into evidence. Certain things are not

4 evidence, and you may not consider them in deciding what the facts 5 are. 6 1. 7 The lawyers are not witnesses. 8 statements and closing arguments, and at other times is intended to 9 help you interpret the evidence, but it is not evidence. 10 as you remember them differ from the way the lawyers have stated them, 11 your memory of them controls. 12 2. 13 Attorneys have a duty to their clients to object when they believe a 14 question is improper under the rules of evidence. 15 influenced by the objection or by the court's ruling on it. 16 3. 17 you have been instructed to disregard, is not evidence and must not be 18 considered. 19 received only for a limited purpose; when I give a limiting 20 instruction, you must follow it. 21 4. 22 not in session is not evidence. 23 the evidence received at the trial. 24 25 26 27 28 You are to decide the case solely on Anything you may have seen or heard when the court was In addition, sometimes testimony and exhibits are Testimony that has been excluded or stricken, or that You should not be Questions and objections by lawyers are not evidence. If the facts What they will say in their opening Arguments and statements by lawyers are not evidence. I will list them for you:

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1 2 3 received into evidence. 4 5

INSTRUCTION NO. 6 There are rules of evidence that control what can be When a lawyer asks a question or offers an

exhibit into evidence and a lawyer on the other side thinks that is not permitted by the rules of evidence, that lawyer may object. 6 overrule the objection, the question may be answered or the exhibit 7 received. 8 answered, and the exhibit cannot be received. 9 objection to a question, you must ignore the question and must not 10 guess what the answer might have been. 11 Sometimes I may order the evidence be stricken from the 12 record and that you disregard or ignore the evidence. 13 when you are deciding the case, you must not consider the evidence 14 that I told you to disregard. 15 16 17 18 19 20 21 22 23 24 25 26 27 9 28 That means that Whenever I sustain an If I sustain the objection, the question cannot be If I

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INSTRUCTION NO. 7 I will now say a few words about your conduct as jurors. First, you are not to discuss this case with anyone,

4 including members of your family, people involved in the trial, or 5 anyone else. 6 with you. 7 case, please let me know about it immediately; 8 Second, do not read or listen to any news stories, articles, 9 radio, television, or online reports about the case or about anyone 10 who has anything to do with it; 11 Third, do not do any research, such as consulting 12 dictionaries, searching the Internet or using other reference 13 materials, and do not make any investigation about the case on your 14 own; 15 Fourth, if you need to communicate with me simply give a 16 signed note to the courtroom deputy or the court reporter to give to 17 me; and 18 Fifth, do not make up your mind about what the verdict 19 should be until after you have gone to the jury room to decide the 20 case and you and your fellow jurors have discussed the evidence. 21 an open mind until then. 22 Finally, until this case is given to you for your 23 deliberation and verdict, you are not to discuss the case with your 24 fellow jurors. 25 26 27 28 Keep If anyone approaches you and tries to talk to you about the Nor are you allowed to permit others to discuss the case

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INSTRUCTION NO. 8 During deliberations, you will have to make your decision You will not have a

4 based on what you recall of the evidence. 5 transcript of the trial.

You may request, however, that the court In any event, I urge you to pay

6 read back to you selected testimony.

7 close attention to the testimony as it is given. 8 If at any time you cannot hear or see the testimony,

9 evidence, questions or arguments, let me know so that I can correct 10 the problem. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 11 28

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INSTRUCTION NO. 9 If you wish, you may take notes to help you remember what

4 witnesses said. If you do take notes, please keep them to yourself 5 until you and your fellow jurors go to the jury room to decide the 6 case. Do not let note-taking distract you so that you do not hear 7 other answers by witnesses. When you leave, your notes should be left 8 on your seat. Please place your seat number or something else on the 9 tablet you've been given so we can ensure you receive the same 10 notebook if the courtroom deputy removes it. Whether or not you take notes, you should rely on your own 11 12 memory of what was said. Notes are only to assist your memory. 13 should not be overly influenced by your notes. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 12 28 You

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INSTRUCTION NO. 10 From time to time during the trial, it may become necessary for

4 me to talk with the attorneys out of the hearing of the jury, either 5 by having a conference at the bench when the jury is present in the 6 courtroom, or by calling a recess. Please understand that while you 7 are waiting, we are working. The purpose of these conferences is not 8 to keep relevant information from you, but to decide how certain 9 evidence is to be treated under the rules of evidence and to avoid 10 confusion and error. Of course we will do what we can to keep the number and 11 12 length of these conferences to a minimum. I may not always grant an 13 attorney's request for a conference. Do not consider my granting or 14 denying a request for a conference as any indication of my opinion of 15 the case or of what your verdict should be. 16 17 18 19 20 21 22 23 24 25 26 27 13 28

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INSTRUCTION NO. 11 The next phase of trial will now begin. First, each side may make an opening statement. An opening statement is not evidence. It is

4 simply an outline to help you understand what that party expects the 5 evidence will show. A party is not required to make an opening 6 statement. 7 Plaintiff will then present evidence, and Defendant's 8 counsel may cross-examine. 9 Plaintiff's counsel may cross-examine. 10 After the evidence has been presented, I will instruct you 11 on the law you should apply in reaching your verdict. 12 may make a closing argument. 13 some final instructions, and you will go to the jury room to 14 deliberate on your verdict. 15 16 17 18 19 20 21 22 23 24 25 26 27 14 28 After closing arguments, I will give you Then each side Then Defendants may present evidence, and

1 2 3 4 5 DRAFT CLOSING JURY INSTRUCTIONS 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 15 28

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INSTRUCTION NO. 1 Members of the Jury, now that you have heard all of the evidence and the arguments of the attorneys, it is my duty to instruct

4 you as to the law which applies to this case. 5 possession of a copy of these jury instructions, which you may take 6 into the jury room for your use if you find it necessary. 7 It is your duty to find the facts from all the evidence in 8 the case. 9 You must follow the law as I give it to you whether you agree 10 with it or not. 11 dislikes, opinions, prejudices, or sympathy. 12 decide the case solely on the evidence before you. 13 that you took an oath to do so at the beginning of the case. 14 In following my instructions, you must follow all of them 15 and not single out some and ignore others; they are all equally 16 important. 17 the court may have said or done, suggesting as to what verdict you 18 should return ­ that is a matter entirely up to you. 19 20 21 22 23 24 25 26 27 16 28 You must not read into these instructions or into anything You will recall That means that you must You must not be influenced by any personal likes or To those facts you will apply the law as I give it to you. Each of you is in

1 2 3 consists of: 4 (1) 5 (2) 6 and 7 (3) 8 stipulated. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

INSTRUCTION NO. 2 The evidence from which you are to decide what the facts are

the sworn testimony of any witness; the exhibits which have been received into evidence;

any facts to which the lawyers have agreed or

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1 2 3

INSTRUCTION NO. 3 In reaching your verdict, you may consider only the testimony and exhibits received into evidence. Certain things are not evidence, and I will list

4 you may not consider them in deciding what the facts are. 5 them for you: 6 (1) 7 The lawyers are not witnesses. 8 statements, closing arguments, and at other times is intended to help 9 you interpret the evidence, but it is not evidence. 10 facts as you remember them differ from the way the lawyers have stated 11 them, your memory of them controls. 12 (2) 13 Attorneys have a duty to their clients to object when they believe a 14 question is improper under the rules of evidence. 15 influenced by the objection or by the court's ruling on it. 16 (3) 17 you have been instructed to disregard, is not evidence and must not be 18 considered. 19 received only for a limited purpose; where I have given a limiting 20 instruction, you must follow it. 21 (4) 22 not in session is not evidence. 23 the evidence received at the trial. 24 25 26 27 18 28 You are to decide the case solely on Anything you may have seen or heard when the court was In addition, some testimony and exhibits have been Testimony that has been excluded or stricken, or that You should not be Questions and objections by lawyers are not evidence. If the What they have said in their opening Arguments and statements by lawyers are not evidence.

1 2 3

INSTRUCTION NO. 4 Evidence may be direct or circumstantial. Direct evidence

is direct proof of a fact, such as testimony by a witness about what 4 the witness personally saw or heard or did. 5 is proof of one or more facts from which you could find another fact. 6 You should consider both kinds of evidence. 7 distinction between the weight to be given to either direct or 8 circumstantial evidence. 9 give to any evidence. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 19 28 It is for you to decide how much weight to The law makes no Circumstantial evidence

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INSTRUCTION NO. 5 In deciding the facts in this case, you may have to decide which testimony to believe and which testimony not to believe. You may

4 believe everything a witness says, or part of it, or none of it. 5 In considering the testimony of any witness, you may take into 6 account: 7 (1) 8 hear or know the things testified to 9 (2) 10 (3) 11 (4) 12 any bias or prejudice; 13 (5) 14 testimony; 15 (6) 16 of all the evidence; and 17 (7) 18 The weight of the evidence as to a fact does not necessarily 19 depend on the number of witnesses who testify. 20 21 22 23 24 25 26 27 20 28 any other factors that bear on believability. the reasonableness of the witness's testimony in light whether other evidence contradicted the witness's the witness's interest in the outcome of the case and the witness's manner while testifying; the witness's memory; the opportunity and ability of the witness to see or

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INSTRUCTION NO. 6 You should decide the case as to each party separately.

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INSTRUCTION NO. 7 When a party has the burden of proof on any claim or affirmative defense by a preponderance of the evidence, it means you must be

4 persuaded by the evidence that the claim or affirmative defense is 5 more probably true than not true. 6 7 When a party has the burden of proof on any claim by clear 8 and convincing evidence, it means you must be persuaded by the 9 evidence that it is highly probable that the claim is true. 10 and convincing evidence standard is a heavier burden than the 11 preponderance of the evidence standard. 12 13 You should base your decision on all of the evidence, regardless 14 of which party presented it. 15 16 Further, the law defines "cause" in its own particular way. 17 "cause" of injury is something that is a substantial factor in 18 bringing about an injury. 19 20 21 22 23 24 25 26 27 22 28 A The clear

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INSTRUCTION NO. 8 Plaintiff alleges Defendant violated her rights under the Fourth Amendment of the United States Constitution by stopping and detaining

4 her on the American River Parkway without reasonable suspicion 5 justifying the stop and detention, arresting her without probable 6 cause, and subjecting her to unreasonable force when taking her into 7 custody. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 23 28

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INSTRUCTION NO. 9 To prevail on her claim that Defendant stopped and detained her without reasonable suspicion in violation of the Fourth Amendment,

4 Plaintiff has the burden of proving by a preponderance of the evidence 5 that Defendant did not have reasonable suspicion justifying his action 6 of stopping Plaintiff to investigate whether Plaintiff violated the 7 Sacramento County Ordinance requiring a dog be kept on a leash in the 8 County parkway, and/or that the length or scope of Defendant's stop 9 and/or detention of Plaintiff was unreasonable. 10 "Reasonable suspicion" is an objectively reasonable belief 11 that an officer had a justified basis for the suspicion that Plaintiff 12 violated the referenced County ordinance. 13 In determining whether the length and scope of a stop and/or 14 detention was reasonable, consider how and why the officer restricted 15 Plaintiff's liberty, and the officer's reason for using whatever 16 methods were used to interfere with Plaintiff's liberty. 17 18 19 20 21 22 23 24 25 26 27 24 28

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INSTRUCTION NO. 10 To prevail on her claim that Defendant arrested her in violation of the Fourth Amendment, Plaintiff has the burden of proving by a

4 preponderance of the evidence that she was arrested without probable 5 cause. 6 "Probable cause" exists when, under all of the circumstances 7 known to the officer at the time, an objectively reasonable police 8 officer would conclude there is a fair probability that the Plaintiff 9 has committed or was committing a crime. 10 Under Sacramento County Ordinance 9.36.061(d), it is a crime 11 to bring into, maintain or allow in or upon any public park any dog, 12 unless the dog at all times is kept on a leash of sufficient strength 13 and durability that it cannot be broken by the dog so leashed. 14 leash shall be no longer than six feet in length, and the dog shall be 15 under the full and complete physical control of its owner or custodian 16 at all times; moreover, a dog is prohibited at all times to be within 17 fifteen feet of an area designated as a nature study area, horse 18 trail, or bicycle trail. 19 Under California Penal Code section 148(a), it is a crime to 20 willfully resist, delay, or obstruct any public officer, or peace 21 officer in the discharge or attempt to discharge any duty of his or 22 her office or employment. 23 24 25 26 27 25 28 The

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INSTRUCTION NO. 11 To prevail on her Fourth Amendment claim that Defendant used unreasonable force when seizing her, Plaintiff has the burden of

4 proving by a preponderance of the evidence that the officer used 5 unreasonable force when he or she detained and/or arrested her. 6 A seizure of a person is unreasonable under the 7 Fourth Amendment if a police officer uses excessive force in making a 8 lawful arrest and/or in defending him or herself or others. 9 Under the Fourth Amendment, a police officer may only use such 10 force as is "objectively reasonable" under all of the circumstances. 11 In other words, you must judge the reasonableness of a particular use 12 of force from the perspective of a reasonable officer on the scene and 13 not with the 20/20 vision of hindsight. 14 In determining whether the officer used excessive force in this 15 case, consider all of the circumstances known to the officer on the 16 scene, including: 17 1. 18 which the officer was responding; 19 2. 20 safety of the officer or to others; 21 3. 22 attempting to evade arrest by flight; 23 4. 24 during which the officer had to determine the type and amount of force 25 that appeared to be necessary; and 26 27 26 28 The amount of time and any changing circumstances Whether Plaintiff was actively resisting arrest or Whether Plaintiff posed an immediate threat to the The severity of the crime or other circumstances to

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5.

The type and amount of force used.

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INSTRUCTION NO. 12 Plaintiff alleges the following state claims against Defendant: battery, unlawful arrest and/or imprisonment, intentional

4 infliction of emotional distress, and abuse of process by wrongfully 5 causing a criminal proceeding to be brought against her. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 28

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INSTRUCTION NO. 13 Plaintiff alleges Defendant battered her by using unreasonable force to detain and/or arrest her. To prevail on this

4 claim, Plaintiff must prove each of the following elements by a 5 preponderance of the evidence: 6 First, that Defendant intentionally touched Plaintiff; 7 Second, that Defendant used unreasonable force to detain 8 and/or arrest Plaintiff; 9 Third, that Plaintiff did not consent to the use of that 10 force; 11 Fourth, that Plaintiff was harmed; and 12 Fifth, that Defendant's use of unreasonable force was a 13 substantial factor in causing Plaintiff's harm. 14 A peace officer may use reasonable force to arrest or detain a 15 person when he or she has reasonable cause to believe the person 16 committed a crime. 17 being arrested or detained has a duty not to use force to resist a 18 peace officer unless the peace officer is using unreasonable force. 19 In deciding whether Defendant used unreasonable force, you must 20 determine the amount of force that would have appeared reasonable to a 21 peace officer in Defendant's position under the same or similar 22 circumstances. You should consider, among others factors, the 23 following: 24 (a) 25 (b) 26 27 29 28 Whether Plaintiff reasonably appeared to pose an The seriousness of the crime at issue; Even if the peace officer is mistaken, a person

1 immediate threat to the safety of Defendant or others; and 2 (c) Whether Plaintiff was actively resisting arrest or 3 attempting to evade arrest. 4 A peace officer who makes or attempts to make an arrest is not 5 required to retreat or cease from his or her efforts because of the 6 resistance or threatened resistance of the person being arrested. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 30 28

1 2 3 imprisoned her. 4 5

INSTRUCTION NO. 14 Plaintiff alleges Defendant unlawfully arrested and/or To prevail on this claim, Plaintiff must prove each

of the following elements by a preponderance of the evidence: First, Defendant intentionally and without probable cause 6 used force or the express or implied threat of force to restrain, 7 detain or confine Plaintiff; 8 Second, the restraint, detention or confinement compelled 9 Plaintiff to stay or go somewhere for some appreciable time, however 10 short; 11 Third, Plaintiff did not consent to the restraint, detention 12 or confinement; 13 Fourth, the restraint, detention, confinement, or arrest 14 caused Plaintiff to suffer injury, damage, loss or harm; and, 15 Fifth, that Defendant's conduct was a substantial factor in 16 causing Plaintiff's harm. 17 18 19 20 21 22 23 24 25 26 27 31 28

1 2 3 emotional distress. 4 5

INSTRUCTION NO. 15 Plaintiff alleges Defendant's caused her to suffer severe To prevail on this claim, Plaintiff must prove

each of the following elements by a preponderance of the evidence: First, that Defendant's conduct was outrageous; and 6 Second, that Defendant intended to cause Plaintiff emotional 7 distress. 8 Third, that Plaintiff suffered injury, damage, loss or harm; 9 and, 10 Fourth, that Defendant's conduct was a substantial factor in 11 causing Plaintiff's harm. 12 "Outrageous conduct" is conduct so extreme that it goes 13 beyond all possible bounds of decency. 14 reasonable person would regard the conduct as intolerable in a 15 civilized community. 16 such as indignities, annoyances, hurt feelings, or bad manners that a 17 reasonable person is expected to endure. 18 In deciding whether Defendant's conduct was outrageous, you 19 may consider, among other factors, the following: 20 (a) 21 (b) 22 result in harm due to mental distress. 23 Emotional distress includes suffering, anguish, fright, 24 horror, nervousness, grief, anxiety, worry, shock, humiliation, and 25 shame. 26 27 32 28 Whether Defendant knew that their conduct would likely Whether Defendant abused a position of authority; and Outrageous conduct does not include trivialities Conduct is outrageous if a

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"Severe emotional distress" is not mild or brief; it must be so substantial or long lasting that no reasonable person in a civilized society should be expected to bear it. Plaintiff is not

4 required to prove physical injury to recover damages for severe 5 emotional distress. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 33 28

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INSTRUCTION NO. 16 Plaintiff claims Defendant wrongfully caused a criminal proceeding to be brought against her. To succeed on this claim,

4 Plaintiff must prove each of the following elements by a preponderance 5 of the evidence: 6 First, that Defendant was actively involved in causing 7 Plaintiff to be prosecuted; 8 Second, that the criminal proceeding ended in Plaintiff's 9 favor; 10 Third, that no reasonable person in Defendant's 11 circumstances would have believed that there were grounds for causing 12 Plaintiff to be arrested or prosecuted; 13 Fourth, that Defendant acted primarily for a purpose other 14 than to bring Plaintiff to justice; 15 Fifth, that Plaintiff was harmed; and 16 Sixth, that Defendant's conduct was a substantial factor in 17 causing Plaintiff's harm. 18 19 20 21 22 23 24 25 26 27 34 28

1 2 3 damages. 4 5

INSTRUCTION NO. 17 It is the duty of the Court to instruct you about the measure of By instructing you on damages, I do not suggest for which

party your verdict should be rendered. If you find for Plaintiff, you must determine Plaintiff's 6 damages. 7 preponderance of the evidence. 8 will reasonably and fairly compensate Plaintiff for any injury you 9 find was caused by Defendant. 10 Damages fall into two categories called economic damages and 11 non-economic damages. You will be asked on the verdict form to state 12 the categories of damages separately. 13 Economic damages means verifiable monetary losses such as 14 past and future medical expenses, loss of past and future earnings, 15 and loss of employment and/or wages. 16 damages must be for the present cash value of those damages. 17 cash value means the sum of money needed now, which, when invested at 18 a reasonable rate of return, will pay future damages at the times and 19 in the amounts that you find the damages will be incurred or would 20 have been received. 21 present cash value should be the interest that can reasonably be 22 expected from safe investments that can be made by a person of 23 ordinary prudence, who has ordinary financial experience and skill. 24 You should also consider decreases in the value of money which may be 25 caused by future inflation. 26 27 35 28 The rate of return to be applied in determining Present Any award for future economic Damages means the amount of money that Plaintiff has the burden of proving damages by a

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Non-economic damages means non-monetary losses such as pain, suffering, or emotional distress. reduced to present cash value. Non-economic damages are not

4 It is for you to determine what damages, if any, have been 5 proved. 6 Your award must be based upon evidence and not upon speculation, 7 guesswork or conjecture. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 36 28

1 2 3 damages. 4 5

INSTRUCTION NO. 18 Plaintiff has a duty to use reasonable efforts to mitigate To mitigate means to avoid or reduce damages.

Defendant has the burden of proving by a preponderance of the evidence each of the following elements: 6 First, that Plaintiff failed to use reasonable efforts to 7 mitigate damages; and 8 Second, the amount by which damages would have been 9 mitigated. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 37 28

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INSTRUCTION NO. 19 If you decide that Defendant's conduct caused Plaintiff harm, you must decide whether that conduct justifies an award of punitive

4 damages. 5 the conduct that harmed Plaintiff and to discourage similar 6 conduct in the future. 7 Plaintiff has the burden of proving that punitive damages should 8 be awarded, and the amount, for a Fourth Amendment claim by a 9 preponderance of the evidence; and for a state claim by clear and 10 convincing evidence. 11 that Defendant's conduct involved malice, oppression, or fraud. 12 "Malice" means that Defendant acted with intent to cause injury 13 or that Defendant's conduct was despicable and was done with a willful 14 and knowing disregard of the rights or safety of another. 15 acts with knowing disregard when he or she is aware of the probable 16 dangerous consequences of his or her conduct and deliberately fails to 17 avoid those consequences. 18 "Oppression" means that Defendant's conduct was despicable and 19 subjected Plaintiff to cruel and unjust hardship in knowing disregard 20 of her rights. 21 "Despicable conduct" is conduct that is so vile, base, or 22 contemptible that it would be looked down on and despised by 23 reasonable people. 24 "Fraud" means that Defendant intentionally misrepresented or 25 concealed a material fact and did so intending to harm Plaintiff. 26 27 38 28 A person You may award punitive damages only if you find The purpose of punitive damages is to punish a wrongdoer for

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There is no fixed formula for determining the amount of punitive damages. If you decide to award punitive damages, you should consider all of the following factors in determining the amount:

4 (a) 5 how reprehensible Defendant's conduct was, you may consider, among 6 other factors: 7 1. 8 2. 9 of others; 10 (b) 11 of punitive damages and Plaintiff's harm or between the amount of 12 punitive damages and potential harm to Plaintiff that Defendant knew 13 was likely to occur because of his or her conduct? 14 (c) 15 is necessary to punish him or her and discourage future wrongful 16 conduct? 17 pay. 18 19 20 21 22 23 24 25 26 27 39 28 Any award you impose may not exceed Defendant's ability to In view of Defendant's financial condition, what amount Is there a reasonable relationship between the amount Whether Defendant disregarded the health or safety Whether the conduct caused physical harm; How reprehensible was Defendant's conduct? In deciding

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INSTRUCTION NO. 20 When you begin your deliberations, you should elect one member of the jury as your presiding juror. That person will preside over the

4 deliberations and speak for you here in court. 5 You will then discuss the case with your fellow jurors to reach 6 agreement if you can do so. Your verdict must be unanimous. 7 Each of you must decide the case for yourself, but you should do 8 so only after you have considered all of the evidence, discussed it 9 fully with the other jurors, and listened to the views of your fellow 10 jurors. 11 Do not hesitate to change your opinion if the discussion 12 persuades you that you should. 13 because other jurors think it is right. 14 It is important that you attempt to reach a unanimous verdict 15 but, of course, only if each of you can do so after having made your 16 own conscientious decision. Do not change an honest belief about the 17 weight and effect of the evidence simply to reach a verdict. 18 19 20 21 22 23 24 25 26 27 40 28 Do not come to a decision simply

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INSTRUCTION NO. 21 Some of you have taken notes during the trial. Such notes are

only for the personal use of the person who took them. 4 There is always a tendency to attach undue importance to matters 5 which one has written down. 6 unimportant at the time presented, and thus not written down, takes on 7 greater importance later in the trial in light of all the evidence 8 presented. 9 tool to aid your own individual memory and you should not compare your 10 notes with other jurors in determining the content of any testimony or 11 in evaluating the importance of any evidence. 12 evidence, may not be accurate, and are by no means a complete outline 13 of the proceedings or a list of the highlights of the trial. 14 all, your memory should be your greatest asset when it comes time to 15 deliberate and render a decision in this case. 16 17 18 19 20 21 22 23 24 25 26 27 41 28 Above Your notes are not Therefore, you are instructed that your notes are only a Some testimony which is considered

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INSTRUCTION NO. 22 If it becomes necessary during your deliberations to communicate with me, you may send a note through the United States

4 Marshal's representation, signed by your presiding juror or by one or 5 more members of the jury. No member of the jury should ever attempt to 6 communicate with me except by a signed writing; I will communicate 7 with any member of the jury on anything concerning the case only in 8 writing, or here in open court. If you send out a question, I will 9 consult with the parties before answering it, which may take some 10 time. 11 answer to any question. 12 -including me-- how the jury stands, numerically or otherwise, until 13 after you have reached a unanimous verdict or have been discharged. 14 Do not disclose any vote count in any note to the court. 15 16 17 18 19 20 21 22 23 24 25 26 27 42 28 Remember that you are not to tell anyone You may continue your deliberations while waiting for the

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INSTRUCTION NO. 23 A verdict form has been prepared for you and will be given to you in the jury deliberation room. After you have reached unanimous

agreement on a verdict, your presiding juror will fill in the form that has been given to you, sign and date it, and advise the United States Marshal's representative that you are ready to return to the courtroom.

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1 2 3 4 5 6 7 8 9 JANET LORRAINE SIANO, 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1. 26 27 44 28 ) ) Plaintiff, ) ) v. ) ) SACRAMENTO COUNTY DEPARTMENT ) OF PARKS AND RECREATION; TOM ) HOFSOMMER, individually and in) his official capacity as ) Ranger for the Sacramento ) County Department of Parks ) and Recreation; C. KEMP, ) individually and in his ) official capacity as Ranger ) for the Sacramento County ) Department of Parks and ) Recreation; and KATHLEEN ) UTLEY, individually and in her) official capacity as Ranger ) for the Sacramento County ) Department of Parks and ) Recreation, ) ) Defendants. ) ) 2:07-cv-01659-GEB-KJM DRAFT VERDICT FORM IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

WE THE JURY IN THE ABOVE-ENTITLED ACTION, FIND THE FOLLOWING VERDICT ON THE QUESTIONS SUBMITTED TO US. Do you find that the following Defendant stopped and/or detained Plaintiff in violation of Plaintiff's Fourth Amendment right?

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 4. 3. 2.

Tom Hofsommer Kathleen Utley Christopher Kemp

_____ _____ _____

YES YES YES

_____ NO _____ NO _____ NO

Continue to Question Number 2.

Do you find that the following Defendant arrested Plaintiff without probable cause in violation of Plaintiff's Fourth Amendment right? Tom Hofsommer Kathleen Utley Christopher Kemp _____ _____ _____ YES YES YES _____ NO _____ NO _____ NO

Continue to Question Number 3.

Do you find that the following Defendant used unreasonable force in detaining and/or arresting Plaintiff in violation of Plaintiff's Fourth Amendment right? Tom Hofsommer Kathleen Utley Christopher Kemp _____ _____ _____ YES YES YES _____ NO _____ NO _____ NO

Continue to Question Number 4.

Do you find that the following Defendant battered Plaintiff in violation of state law? Tom Hofsommer Kathleen Utley _____ _____ YES YES _____ NO _____ NO

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 7. 6. 5.

Christopher Kemp

_____

YES

_____ NO

Continue to Question Number 5.

Do you find that the following Defendant unlawfully arrested and/or imprisoned Plaintiff in violation of state law? Tom Hofsommer Kathleen Utley Christopher Kemp _____ _____ _____ YES YES YES _____ NO _____ NO _____ NO

Continue to Question Number 6.

Do you find that the following Defendant subjected Plaintiff to intentional infliction of emotional distress in violation of state law? Tom Hofsommer Kathleen Utley Christopher Kemp _____ _____ _____ YES YES YES _____ NO _____ NO _____ NO

Continue to Question Number 7.

Do you find that the criminal proceeding instituted against Plaintiff ended in her favor? Tom Hofsommer Kathleen Utley Christopher Kemp _____ _____ _____ YES YES YES _____ NO _____ NO _____ NO

a. Please explain your response.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 9. 8.

_________________________________________________________________ _________________________________________________________________ _________________________________________________________________ Continue to Question Number 8.

Do you find that no reasonable person in the following Defendant's circumstances would have believed there were grounds justifying Plaintiff's arrest and prosecution? Tom Hofsommer Kathleen Utley Christopher Kemp _____ _____ _____ YES YES YES _____ NO _____ NO _____ NO

a. Please explain your response. _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ Continue to Question Number 9.

Do you find the following Defendant wrongfully caused a criminal proceeding to be brought against Plaintiff? Tom Hofsommer Kathleen Utley Christopher Kemp _____ _____ _____ YES YES YES _____ NO _____ NO _____ NO

Continue to Question Number 10.

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1 10. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 11.

Do you find that the following Defendant caused Plaintiff any damage or harm? Tom Hofsommer Kathleen Utley Christopher Kemp _____ _____ _____ YES YES YES _____ NO _____ NO _____ NO

If you answered NO as to each Defendant, please sign and return this verdict. If you answered YES to any Defendant continue to Question Number 11.

What are Plaintiff's damages? a. Past economic losses Tom Hofsommer Kathleen Utley Christopher Kemp _________________ _________________ _________________

b.

Future economic losses Tom Hofsommer Kathleen Utley Christopher Kemp _________________ _________________ _________________

c.

Past noneconomic loss Tom Hofsommer Kathleen Utley _________________ _________________

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 13. 12. d.

Christopher Kemp

_________________

Future noneconomic loss Tom Hofsommer Kathleen Utley Christopher Kemp _________________ _________________ _________________

TOTAL

_________________

If you responded YES to question number 1, 2, or 3, and to question 10, state whether you find the following Defendant is liable for punitive damages under federal law, and if so, state the amount of punitive damages. Tom Hofsommer ___________

Kathleen Utley

___________

Christopher Kemp

___________

If you responded YES to question number 4, 5, 6, 9, and 10 state whether you find the following Defendant is liable for punitive damages under state law, and if so, state the amount of punitive damages.

Tom Hofsommer

___________

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 50 28 ________________________________________ JURY FOREMAN Dated this _______ day of ________________2009 Christopher Kemp ___________ Kathleen Utley ___________

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 51 28 The parties agree that this lawsuit is based on Plaintiff's federal and state claims involved with the following encounter Plaintiff had with Defendants. Defendant Tom Hofsommer, a Sacramento County Park Ranger, JANET LORRAINE SIANO, ) ) Plaintiff, ) ) v. ) ) SACRAMENTO COUNTY DEPARTMENT ) OF PARKS AND RECREATION; TOM ) HOFSOMMER, individually and in) his official capacity as ) Ranger for the Sacramento ) County Department of Parks ) and Recreation; C. KEMP, ) individually and in his ) official capacity as Ranger ) for the Sacramento County ) Department of Parks and ) Recreation; and KATHLEEN ) UTLEY, individually and in her) official capacity as Ranger ) for the Sacramento County ) Department of Parks and ) Recreation, ) ) Defendants. ) ) 2:07-cv-01659-GEB-KJM ADDITIONAL VOIR DIRE QUESTION IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

1 stopped Plaintiff, who was walking her dog in the American River 2 Parkway, and advised Plaintiff of Sacramento County Ordinance 3 9.35.061, which requires dogs to be on a leash at all times within the 4 American River Park system. Defendant Hofsommer asked Plaintiff for 5 her identification. Plaintiff refused to identify herself and 6 proceeded to walk and run from Defendant Hofsommer. Defendant 7 Hofsommer followed Plaintiff along the pathway and called for 8 assistance of other Sacramento County Park Rangers, Defendants 9 Kathleen Utley and Christopher Kemp. Upon their arrival, a struggle 10 ensued, and Plaintiff was arrested. 11 Is there anything about the subject of this law suit that 12 causes any juror to prefer not being a juror in this trial? 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 52 28