Elseth v. Speirs, et al

Filing 170

ORDER re Ruling and Transmittal of Trial Documents to the Parties signed by Judge Garland E. Burrell, Jr., on 8/26/11. In light of the ruling on how the qualified immunity defense will be decided, the FPO is supplemented as follows: A special verdic tor interrogatories shall be filed no LATER than 8:00 a.m. on 8/29/11, for all factual disputes to be resolved by the jury concerning the qualified immunity defense. Further, no LATER than 8:00 a.m. on 8/29/11 each party shall file proposed prevailing party findings of fact and conclusions of law concerning the qualified immunity defense. (Attachments: # 1 Court's General Voir Dire) (Kastilahn, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ALLEN ELSETH, by his guardians
ad litem, Roger Elseth and
Patricia Ann Elseth,
Plaintiff,

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v.

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Deputy Probation Officer Jeff
Elorduy, individually,

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Defendant.
________________________________

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The

attached

voir

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dire

2:08-cv-02890-GEB-CMK
RULING AND TRANSMITTAL OF
TRIAL DOCUMENTS TO THE
PARTIES

questions,

preliminary

jury

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instructions, draft closing jury instructions, and draft verdict form

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concern the impending jury trial. Any proposed modifications should be

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submitted as soon as practicable.

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The draft liability jury instruction does not include a

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discussion of “color of law” because it is assumed that Defendant

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concedes he acted under color of law. A jury instruction conference is

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scheduled on August 29, 2011, commencing at 1:30 p.m., at which this and

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other issues will be discussed.

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Further, notwithstanding the following communication in the

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Final Pretrial Order (“FPO”) concerning Defendant’s qualified immunity

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defense, the parties have proposed an inadequate qualified immunity jury

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instruction:

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Defendant’s statements in the JPS about qualified
immunity are conclusory statements of the law,
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which are useless aids in the judicial endeavor to
state the disputed facts applicable to that
affirmative defense. The jury instruction on this
issue, which the parties have stipulated shall be
tried to the jury, shall be sufficient to inform
the jury of the factual dispute it will decide.

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(FPO, 2:14-19, ECF No. 142.) “Jury instructions must be formulated so

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that they fairly and adequately cover the issues presented, correctly

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state the law, and are not misleading. The instructions must allow the

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jury

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Cleghorn,47 F.3d 1011, 1013 (9th Cir. 1995) (citation omitted). Yet the

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to

determine

the

issues

presented

intelligently.”

Fikes

v.

parties propose the following qualified immunity jury instruction:

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Defendant JEFF ELORDUY contends he is entitled
to qualify immunity.
The purpose of
qualified
immunity is to shield public officials from undue
interference with their duties and from potentially
disabling threats of liability.
It is Plaintiff’s burden to prove by a
preponderance of the evidence that Defendant’s
conduct violated a constitutional right.
If
Plaintiff establishes this, then Plaintiff must
also prove by a preponderance of the evidence that
there existed clearly established case law at the
time of the incident that would have led a
reasonable officer in Defendant JEFF ELORDUY’s
position to believe that his conduct was unlawful.

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This

proposed

qualified

immunity

jury

instruction

is

a

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woefully inadequate “guide [for] the jury's deliberation” since it does

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not explain instructed terms.

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(9th Cir. 2010) (internal quotation omitted). Although it informs the

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jury

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[existing] at the time of the incident” which “would have led a

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reasonable officer in Defendant JEFF ELORDUY’s position to believe that

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his conduct was unlawful,” it does not explain what constitutes a

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reasonable officer, or what “clearly established case law” means.

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though these explanations are missing, the ultimate inquiry in the

that

Plaintiff

has

U.S. v. Redlightning,624 F.3d 1090, 1122

the

obligation

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of

presenting

“case

law

Even

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instruction, which requires “Plaintiff [to] prove by a preponderance of

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the evidence that there existed clearly established case law at the time

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of the incident that would have led a reasonable officer in Defendant

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JEFF ELORDUY’s position to believe that his conduct was unlawful,”

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presumes that the jury has been informed about clearly established case

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law which a constructed reasonable officer would have known, and with

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which he could have reasonably believed he complied.

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Since the proposed qualified immunity jury instruction has the

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referenced serious flaws, despite the statement in the FPO that this

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instruction “shall be sufficient to inform the jury of the factual

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dispute it will decide,” the question of law involved with this defense

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shall be decided by the court, rather than the jury-notwithstanding the

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parties’ contrary stipulation that the qualified immunity question of

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law would be submitted to a jury. As the Ninth Circuit states in Act

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Up!/Portland v. Bagley, 988 F.2d 868, 873 (9th Cir. 1993):

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[T]he determination of what conduct underlies the
alleged violation-what the officer and claimant did
or failed to do-is a determination of fact [to be
decided
by
a
jury;]
however,
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.
.
the
determination whether those facts support an
objective belief that [the officer reasonably
believed he was not violating Plaintiff’s right to
be free from excessive force] is ordinarily a
question for the court.

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This decision is made in light of the closeness of the jury trial

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commencement date of August 30, 2011, and the parties apparent inability

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to propose an adequate qualified immunity jury instruction.

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Since the jury will not decide the question of law involved

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with this defense, the jury need not be informed about the defense of

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qualified immunity during any part of the proceedings. The jury will

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resolve the discrete issues of fact, if any, and all assertions made by

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the

parties

regarding

the

defense
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of

qualified

immunity

shall

be

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confined to those issues of fact.

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In light of this ruling on how the qualified immunity defense

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will be decided, the FPO is supplemented as follows: A special verdict

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or interrogatories shall be filed no later than 8:00 a.m. on August 29,

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2011, for all factual disputes to be resolved by the jury concerning the

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qualified immunity defense. Further, no later than 8:00 a.m. on August

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29, 2011 each party shall file proposed prevailing party findings of

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fact and conclusions of law concerning the qualified immunity defense.

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Dated:

August 26, 2011

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GARLAND E. BURRELL, JR.
United States District Judge

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