Solomon v. City of South Lake Tahoe et al

Filing 90

PROPOSED TRIAL DOCUMENTS issued by Judge Garland E. Burrell, Jr. on 1/20/2015 ORDERING that any proposed modifications be submitted as soon as practicable. (Michel, G)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PATRICK WAYNE SOLOMON,

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Plaintiff,

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No. 2:13-cv-00115-GEB-CKD

v.

PROPOSED TRIAL DOCUMENTS

OFFICER J. HERMINGHAUS,

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Defendant.

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Attached

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are

the

Court’s

proposed

closing

jury

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instructions, conditional closing jury instructions, and verdict

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form. Any proposed modifications should be submitted as soon as

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practicable.

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A.

Proposed Closing Jury Instructions

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In the attached instructions, the Court has attempted

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to eliminate unnecessary language and to more closely follow the

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federal case law upon which certain instructions are based. The

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goal is to “help the jurors to concentrate on the question[s] at

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hand.” Achor v. Riverside Golf Club, 117 F.3d 339, 341 (7th Cir.

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1997).
For example, the attached instructions do not include

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the

parties’

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U.S.C.

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instructing jurors in “formal terminology . . . suited more to

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lawyers than to lay deciders,” especially in the situation here,

§

proposed

1983

claims

jury

instructions

generally

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since

that
a

instruct

court

should

on

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avoid

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where it is undisputed that Defendant acted under color of law.

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Achor, 117 F.3d at 341.

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Since the Court’s proposed voir dire contains a neutral

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statement of the case, the parties’ proposed jury instruction

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that sets forth “a brief summary of the positions of the parties”

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is unnecessary and will not be used.

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The

parties’

proposed

“two

or

more

parties”

jury

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instruction will not be given since there is only one plaintiff

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and one remaining defendant in this case.

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Defendant’s first proposed separate instruction states:

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In this case, there is no claim for
false arrest and you must assume that
Officer Herminghaus had the lawful right to
detain and arrest Plaintiff, Patrick Solomon.
The only claim before you is whether Officer
Herminghaus
used
reasonable
force
in
accordance with the instructions I will give
you in making this lawful arrest.

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(Def.’s Separate Jury Instructions, Instruction No. 1, ECF No.

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70-1, page 1 of 3.) Defendant has not shown that this instruction

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is relevant to the issues to be decided by the jury; therefore,

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it will not be given. See Gulliford v. Pierce Cnty., 136 F.3d

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1345, 1348 (“Jury instructions must be formulated so that they

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fairly and adequately cover the issues presented, correctly state

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the law, and are not misleading.” (internal quotation marks and

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citation omitted)); see also Rosenburg v. Lincoln Am. Life Ins.

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Co., 883 F.2d 1328, 1337 (7th Cir. 1989) (affirming the district

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court’s rejection of an “irrelevant” jury instruction); accord

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Nationwide Transp. Fin. v. Cass Info. Sys., Inc., 523 F.3d 1051,

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1063 (9th Cir. 2008).

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Defendant’s

third

proposed

separate

jury

instruction

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will not be given since its inclusion is not supported by the

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authority Defendant cites in support thereof.

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B.

Proposed Verdict Forms

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The attached general verdict form will be used rather

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than

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Laws,

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general rule, the court has complete discretion over whether to

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have the jury return a special verdict or a general verdict”).

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Defendant’s
929

C.

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F.2d

proposed
1390,

special

1395

(9th

verdict
Cir.

form.

1991)

See

(stating

Floyd

v.

“[a]s

a

Conditional Closing Jury Instructions
The

parties’

proposed

jury

instructions,

the

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appropriateness of which depend upon the presentation of evidence

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at trial, are attached hereto as “conditional instructions.” They

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will be given to the jury only if applicable.

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Dated:

January 20, 2015

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

PATRICK WAYNE SOLOMON,

No. 2:13-cv-00115-GEB-CKD

Plaintiff,
v.

CLOSING JURY INSTRUCTIONS

OFFICER J. HERMINGHAUS,
Defendant.

JURY INSTRUCTION NO.

Members of the jury, now that you have heard all the
evidence and the arguments of the parties, it is my duty to
instruct you on the law which applies to this case. Each of you
is in possession of a copy of these jury instructions, which you
may

take

into

the

jury

room

for

your

use

if

you

find

it

necessary.
It

is

your

duty

to

find

the

facts

from

all

the

evidence in the case. To those facts you must apply the law as I
give it to you. You must follow the law as I give it to you
whether you agree with it or not. And you must not be influenced
by

any

personal

likes

or

dislikes,

opinions,

prejudices,

or

sympathy. That means that you must decide the case solely on the
evidence before you and according to the law. You will recall
that you took an oath promising to do so at the beginning of the
case.
In following my instructions, you must follow all of
them and not single out some and ignore others; they are all
equally important.

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JURY INSTRUCTION NO.

The evidence you are to consider in deciding what the
facts are consists of:
the sworn testimony of any witness;
the exhibits which are received into evidence; and
any facts to which the lawyers have agreed.

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JURY INSTRUCTION NO.

In deciding the facts in this case, you may have to
decide which testimony to believe and which testimony not to
believe. You may believe everything a witness says, or part of
it, or none of it. Proof of a fact does not necessarily depend
on the number of witnesses who testify about it.
In considering the testimony of any witness, you may
take into account:
the opportunity and ability of the witness to see or
hear or know the things testified to;
the witness’s memory;
the witness’s manner while testifying;
the witness’s interest in the outcome of the case and
any bias or prejudice;
whether

other

evidence

contradicted

the

witness’s

testimony;
the reasonableness of the witness’s testimony in light
of all the evidence; and
any other factors that bear on believability.
The

weight

of

the

evidence

as

to

a

fact

does

not

necessarily depend on the number of witnesses who testify about
it.

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JURY INSTRUCTION NO.

Evidence

may

be

direct

or

circumstantial.

Direct

evidence is direct proof of a fact, such as testimony by a
witness about what that witness personally saw or heard or did.
Circumstantial evidence is proof of one or more facts from which
you could find another fact.
You should consider both kinds of evidence. The law
makes no distinction between the weight to be given to either
direct or circumstantial evidence. It is for you to decide how
much weight to give to any evidence.

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JURY INSTRUCTION NO.

Plaintiff

has

burden

of

proving

his

claim

by

a

preponderance of the evidence. This means you must be persuaded
by the evidence that the claim is more probably true than not
true.
You should base your decision on all of the evidence,
regardless of which party presented it.

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JURY INSTRUCTION NO.

Plaintiff

alleges

Defendant

used

excessive

force

against him on January 21, 2011, in violation of the Fourth
Amendment. To prevail on this claim, Plaintiff must prove, by a
preponderance of the evidence, each of the following elements:
First,

that

Defendant

used

excessive

force

during

Plaintiff’s arrest under all of the circumstances; and
Second, that Defendant’s use of excessive force caused
him harm.

In determining whether Defendant used excessive force
in

this

case,

consider

all

of

the

circumstances

known

to

Defendant on the scene, including:
The severity of the crime or other circumstances to
which Defendant was responding;
Whether

Plaintiff

posed

an

immediate

threat

to

the

safety of Defendant or to others;
Whether

Plaintiff

was

actively

resisting

arrest

or

attempting to evade arrest by flight;
The

amount

of

time

and

any

changing

circumstances

during which Defendant had to determine the type and amount of
force that appeared to be necessary; and
The type and amount of force used.
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Under the Fourth Amendment, a police officer may only
use such force as is “objectively reasonable” under all of the
circumstances. In other words, you must judge the reasonableness
of

a

particular

use

of

force

from

the

perspective

of

a

reasonable officer on the scene and not with the 20/20 vision of
hindsight.
A police officer is not required to use the least
intrusive

degree

of

force

possible.

Rather,

the

question

is

whether the force that was used was reasonable, viewing the
facts from the perspective of a reasonable officer on the scene.

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JURY INSTRUCTION NO.

It is the duty of the Court to instruct you about the
measure of damages. By instructing you on damages, the Court
does not mean to suggest for which party your verdict should be
rendered.
If you find in favor of Plaintiff on his excessive
force claim, you must determine Plaintiff’s damages. Plaintiff
has the burden of proving damages by a preponderance of the
evidence. Damages means the amount of money that will reasonably
and fairly compensate Plaintiff for any injury you find was
caused by Defendant. You should consider the following:
The nature and extent of the injuries;
The
experienced

mental,
and

physical,

which

with

emotional

reasonable

pain

and

probability

suffering
will

be

experienced in the future;
The

reasonable

value

of

necessary

medical

care,

treatment and services received to the present time;
The

reasonable

value

of

necessary

medical

care,

treatment and services which with reasonable probability will be
required in the future;
The reasonable value of earnings lost to the present
time;
The

reasonable

value
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of

earnings

which,

with

reasonable probability, will be lost in the future.
It is for you to determine what damages, if any, have
been proved.
Your award must be based upon evidence and not upon
speculation, guesswork or conjecture.

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JURY INSTRUCTION NO.

When you begin your deliberations, you should elect
one member of the jury as your presiding juror. That person will
preside over the deliberations and speak for you here in court.
You will then discuss the case with your fellow jurors
to

reach

agreement

if

you

can

do

so.

Your

verdict

must

be

unanimous.
Each of you must decide the case for yourself, but you
should do so only after you have considered all of the evidence,
discussed it fully with the other jurors, and listened to the
views of your fellow jurors.
Do
discussion

not

hesitate

persuades

you

to

that

change
you

your

should.

Do

opinion
not

if

come

the
to

a

decision simply because other jurors think it is right.
It is important that you attempt to reach a unanimous
verdict but, of course, only if each of you can do so after
having made your own conscientious decision. Do not change an
honest belief about the weight and effect of the evidence simply
to reach a verdict.

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JURY INSTRUCTION NO.

If it becomes necessary during your deliberations to
communicate with me, you may send a note through the United
States Marshal’s representative, signed by your presiding juror
or by one or more members of the jury. No member of the jury
should ever attempt to communicate with me except by a signed
writing; and I will communicate with any member of the jury on
anything concerning the case only in writing, or here in open
court. If you send out a question, I will consult with the
parties before answering it, which may take some time. You may
continue your deliberations while waiting for the answer to any
question. Remember that you are not to tell anyone — including
me — how the jury stands, numerically or otherwise, until after
you have reached a unanimous verdict or have been discharged. Do
not disclose any vote count in any note to the court.

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JURY INSTRUCTION NO.

A verdict form has been prepared for you. 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
outside your door that you are ready to return to the courtroom.

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PATRICK WAYNE SOLOMON,

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No. 2:13-cv-00115-GEB-CKD

Plaintiff,

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v.

VERDICT FORM

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OFFICER J. HERMINGHAUS,

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Defendant.

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WE THE JURY UNANIMOUSLY FIND THE FOLLOWING VERDICT ON

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THE SUBMITTED QUESTIONS:
Question No. 1:

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Does

Plaintiff

prevail

on

his

Fourth Amendment excessive force claim?
Answer:

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you

answered

____ YES
“yes,”

____ NO

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(If

continue

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answered “no,” then proceed to the last page and sign, date and

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return this verdict form.)

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///

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///

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///

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///

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///
1

to

Question

No.

2.

If

you

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Question No. 2:

What is the amount of damages you

award to Plaintiff?

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$______________

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(Please date, sign, and return this verdict.)

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Dated this _____ day of January 2015.

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___________________________________
PRESIDING JUROR

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

PATRICK WAYNE SOLOMON,

No. 2:13-cv-00115-GEB-CKD

Plaintiff,
v.

CONDITIONAL JURY INSTRUCTIONS

OFFICER J. HERMINGHAUS,
Defendant.

JURY INSTRUCTION NO.

Some witnesses, because of education or experience,
are

permitted

to

state

opinions

and

the

reasons

for

those

opinions.
Opinion testimony should be judged just like any other
testimony. You may accept it or reject it, and give it as much
weight

as

you

think

it

deserves,

considering

the

witness’s

education and experience, the reasons given for the opinion, and
all the other evidence in the case.

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JURY INSTRUCTION NO.

A deposition is the sworn testimony of a witness taken
before trial. The witness is placed under oath to tell the truth
and lawyers for each party may ask questions. The questions and
answers are recorded. [When a person is unavailable to testify
at trial, the deposition of that person may be used at the
trial.]
The deposition of [witness] was taken on [date]. You
should consider deposition testimony, presented to you in court
in lieu of live testimony, insofar as possible, in the same way
as if the witness had been present to testify.
[Do not place any significance on the behavior or tone
of voice of any person reading the questions or answers.]

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JURY INSTRUCTION NO.

At this point I will give you a further instruction.
By giving a further instruction at this time, I do not mean to
emphasize this instruction over any other instruction.
You are not to attach undue importance to the fact
that this was read separately to you. You shall consider this
instruction together with all of the other instructions that
were given to you.

[Insert text of new instruction.]

You will now retire to the jury room and continue your
deliberations.

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