Eberhard v. California Highway Patrol et al

Filing 270

REVISED FINAL JURY INSTRUCTIONS. Signed by Judge James Donato on 2/25/2016. (jdlc1S, COURT STAFF) (Filed on 2/25/2016)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

STEPHEN E. EBERHARD,
Plaintiff,

8
9
10

REVISED FINAL JURY
INSTRUCTIONS

v.
CALIFORNIA HIGHWAY PATROL, et al.,
Defendants.

11
United States District Court
Northern District of California

Case No. 14-cv-01910-JD

12
13
14

The Court will use these revised instructions as the final instructions for jury deliberations.
Any final comments by the parties will be heard after trial on February 26, 2016.

15

Here are the Court’s rulings on the substantive objections by plaintiff:

16

Section 1983 Retaliation: In response to plaintiff’s objections, the Court revises this

17

instruction to: (1) state “retaliation” in the caption; (2) replace “when they arrested him” with “in

18

the events that occurred”; (3) replace “when Babcock pushed him and yelled at him” with “in the

19

events that occurred”; (4) delete “in places open to the public”; (5) in element 2, replace “arrested”

20

with “took actions against”; (6) in element 3, replace “pushed and yelled” with “took actions

21

against”; and (7) add “I instruct . . .” These changes resolve all of plaintiff’s objections to this

22

instruction. The defendants agreed to these changes other than to (4), for which they preserved an

23

objection.

24

Bane Act Elements: The Court denies plaintiff’s objections to this instruction as

25

inconsistent with CACI Instruction 3066. The Court will include the element of an independent

26

coercive act separate from the arrest as required for an arrest claim. Lyall v. City of Los Angeles,

27

807 F.3d 1178, 1195-96 (9th Cir. 2015).

28

Bane Act Remedies: The Court finds that the reference to “damages under Section 52” as

1
2

the remedy for a Bane Act violation in Civil Code Section 51.2(b) means the actual, treble and

3

punitive damages stated in Section 52, but does not include civil penalties. Cuviello v. City of

4

Oakland, No. C 06-5517 MHP, 2010 WL 3063199, at *5 (N.D. Cal. Aug. 3, 2010). Plaintiffs did

5

not propose a punitive damages instruction under California state law, and so the Court will permit

6

the jury to award actual and treble damages if they find a Bane Act violation. To the extent the

7

jury awards less than $4,000 in these damages, the Court will follow the CACI note to adjust the

8

amount to $4,000.
Plaintiff has asked for a reduced element Bane Act instruction to be given in addition to

9

the actual damages instruction. Dkt. No. 267 at 7. But the language plaintiff cites from the CACI

11
United States District Court
Northern District of California

10

3066 directions indicates that a reduced element instruction is appropriate when the plaintiff has

12

elected to seek statutory damages only. Plaintiff has not provided any caselaw to the contrary.

13

The Court leaves the instruction as is. If plaintiff chooses to seek statutory damages only, he

14

should notify the Court promptly.

15

CHP: The Court held in the summary judgment order that the CHP may be vicariously

16

liable for the Bane Act under California state law if the individual defendants are found liable.

17

Dkt. No. 188 at 17. Defendants agree that the Court will enter judgment against the CHP if an

18

individual defendant is found liable by the jury. Plaintiff asks that the jury be instructed that it

19

may find the CHP liable under the Bane Act for acts attributable to officers other than the

20

individual defendants. The Court denies the request. None of the cases cited by plaintiffs support

21

it. Dkt. No. 267 at 7. Sanchez v. City of Fresno, 914 F. Supp. 2d 1079 (E.D. Cal. 2012), and D.V.

22

v. City of Sunnyvale, 65 F. Supp. 3d 782 (N.D. Cal. 2014), are decisions on motions to dismiss and

23

Knapps v. City of Oakland, 647 F. Supp. 2d 1129 (N.D. Cal. 2009) was a bench trial. These cases

24

do not address Bane Act jury instructions and are of doubtful utility here. Moreover, plaintiff’s

25

Bane Act claims state allegations against the individual defendants only and not against the CHP

26

for acts by other officers. Third Amended Complaint, Dkt. No. 97 at 39-42; Dkt. No. 188 at 15-

27

17.

28
2

1

Plaintiff’s other objections are resolved as stated on the record.

2

IT IS SO ORDERED.

3

Dated: February 25, 2016

4
5
JAMES DONATO
United States District Judge

6
7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3

Duty of Jury

1
2
3
4
5
6
7

Members of the Jury: Now that you have heard all of the evidence, it is my duty to instruct
you on the law.
A copy of these instructions will be available in the jury room to consult during your
deliberations.
You must not infer from these instructions or from anything I may say or do as indicating
that I have an opinion regarding the evidence or what your verdict should be.

8

It is your duty to find the facts from all the evidence in the case. To those facts you will

9

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,

11
United States District Court
Northern District of California

10

prejudices, or sympathy. That means that you must decide the case solely on the evidence before

12

you. You will recall that you took an oath to do so.

13
14

In following my instructions, you must follow all of them and not single out some and
ignore others; they are all important.

15
16
17
18
19
20
21
22
23
24
25
26
27
28
4

1

What is Evidence

2

The evidence you are to consider in deciding what the facts are consists of:

3

1. the sworn testimony of any witness;

4

2. the exhibits which are received into evidence; and

5

3. any facts to which the lawyers have agreed.

6
7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5

What is Not Evidence

1
2

In reaching your verdict, you may consider only the testimony and exhibits received into

3

evidence. Certain things are not evidence, and you may not consider them in deciding what the

4

facts are. I will list them for you:

5

(1) Arguments and statements by lawyers are not evidence. The lawyers are not witnesses.

6

What they have said in their opening statements, will say in their closing arguments, and at other

7

times is intended to help you interpret the evidence, but it is not evidence. If the facts as you

8

remember them differ from the way the lawyers have stated them, your memory of them controls.

9

(2) Questions and objections by lawyers are not evidence. Attorneys have a duty to their
clients to object when they believe a question is improper under the rules of evidence. You should

11
United States District Court
Northern District of California

10

not be influenced by the objection or by the court’s ruling on it.

12

(3) Testimony that has been excluded or stricken, or that you have been instructed to

13

disregard, is not evidence and must not be considered. In addition sometimes testimony and

14

exhibits are received only for a limited purpose; when I have given a limiting instruction, you

15

must follow it.

16
17

(4) Anything you may have seen or heard when the court was not in session is not
evidence. You are to decide the case solely on the evidence received at the trial.

18
19
20
21
22
23
24
25
26
27
28
6

Direct and Circumstantial Evidence

1
2

Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as

3

testimony by a witness about what that witness personally saw or heard or did. Circumstantial

4

evidence is proof of one or more facts from which you could find another fact. You should

5

consider both kinds of evidence. The law makes no distinction between the weight to be given to

6

either direct or circumstantial evidence. It is for you to decide how much weight to give to any

7

evidence.

8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
7

Credibility of Witnesses

1
2

In deciding the facts in this case, you may have to decide which testimony to believe and

3

which testimony not to believe. You may believe everything a witness says, or part of it, or none

4

of it. Proof of a fact does not necessarily depend on the number of witnesses who testify about it.

5

In considering the testimony of any witness, you may take into account:

6

(1) the opportunity and ability of the witness to see or hear or know the things testified to;

7

(2) the witness’s memory;

8

(3) the witness’s manner while testifying;

9

(4) the witness’s interest in the outcome of the case and any bias or prejudice;
(5) whether other evidence contradicted the witness’s testimony;

11
United States District Court
Northern District of California

10

(6) the reasonableness of the witness’s testimony in light of all the evidence; and

12

(7) any other factors that bear on believability.

13

The weight of the evidence as to a fact does not necessarily depend on the number of

14

witnesses who testify about it.

15
16
17
18
19
20
21
22
23
24
25
26
27
28
8

Expert Opinion

1
2
3
4

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

5

reject it, and give it as much weight as you think it deserves, considering the witness’s education

6

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

7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
9

1
2

Testimony of Police Officers
The testimony of a police officer should be considered by you just as any other evidence

3

in this case, and in evaluating his or her credibility, you should use the same guidelines which

4

you apply to the testimony of any witness. You should not give either greater or lesser credence

5

to the testimony of a witness merely because he or she is a police officer.

6
7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
10

Stipulation of Facts

1
2
3
4

The parties have agreed to the following facts. You should treat these facts as having been
proved.
1.

On April 12, 2013, a meeting was held at the office of The Willits News (TWN),

5

attended by Willits News publisher Debbie Clark, Willits News Editor Linda Williams, Caltrans

6

Public Information Officer Phil Frisbie, and plaintiff Stephen Eberhard. The purpose of the

7

meeting was to discuss access to the Willits Bypass Project site.

8
9

2.

Defendant CHP Officers Christopher Dabbs and Kory Reynolds arrested Eberhard

at the Willits Bypass Project on July 23, 2013.
3.

Eberhard was arrested for trespassing under California Penal Code Section 602(k).

11
United States District Court
Northern District of California

10

4.

Trespass under Section 602 of the California Penal Code is a misdemeanor offense

12
13
14
15

under California law.
5.

After his July 23, 2013 arrest, Dabbs and Reynolds caused Eberhard to be booked

into Mendocino County Jail at about 8:20 a.m.
6.

Eberhard was released from jail at about noon on July 23, 2013.

16
17
18
19
20
21
22
23
24
25
26
27
28
11

1
2

Burden of Proof -- Preponderance of the Evidence
When a party has the burden of proof on any claim or affirmative defense by a

3

preponderance of the evidence, it means you must be persuaded by the evidence that the claim or

4

affirmative defense is more probably true than not true. You should base your decision on all of

5

the evidence, regardless of which party presented it.

6
7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
12

1
2

Section 1983 Claim -- Introductory Instruction
Stephen Eberhard brings claims against defendants under the federal statute, 42 U.S.C. §

3

1983, which provides that any person or persons who, under color of law, deprives another of any

4

rights, privileges, or immunities secured by the Constitution or laws of the United States shall be

5

liable to the injured party.

6
7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
13

1

Section 1983 Claim Against Defendant in Individual Capacity -- Elements and Burden of

2

Proof

3

In order to prevail on his Section 1983 claims against the individual defendants, Officers

4

Christopher Dabbs, Kory Reynolds, and Teddy Babcock, plaintiff Eberhard must prove each of

5

the following elements by a preponderance of the evidence:

6

1. the defendants acted under color of law; and

7

2. the acts of Dabbs, Reynolds, and/or Babcock deprived Eberhard of his particular rights

8

under the United States Constitution as explained in an instruction that I will provide to you in a

9

moment.

10

United States District Court
Northern District of California

11
12
13
14

A person acts “under color of law” when the person acts or purports to act in the
performance of official duties under any state, county, or municipal law, ordinance, or regulation.
The parties have stipulated that defendants Dabbs, Reynolds, and Babcock acted under
color of law. You should treat that element as proved.
If you find Eberhard has proved each of these elements as to a particular defendant or

15

defendants, and if you find that Eberhard has proved all the elements he is required to prove under

16

later instructions, your verdict should be for Eberhard against a particular defendant. If, on the

17

other hand, Eberhard has failed to prove any one or more of these elements against any one of the

18

defendants, your verdict should be for that defendant.

19
20
21
22
23
24
25
26
27
28
14

Particular Rights – First Amendment – Retaliation

1

As previously explained, plaintiff Eberhard has the burden to prove that the acts of the

2
3

defendants, Officers Dabbs, Reynolds and/or Babcock, deprived him of particular rights under the

4

United States Constitution.
In this case, Eberhard alleges that Dabbs and Reynolds deprived him of his rights under the

5
6

First Amendment to the Constitution in the events that occurred on July 23, 2013.
Eberhard also alleges that Babcock deprived him of his rights under the First Amendment

7
8

to the Constitution in the events that occurred on May 21, 2013.
Under the First Amendment, a person has the right to take photographs and gather

10

information about newsworthy events. In order to prove defendants deprived the plaintiff of this

11
United States District Court
Northern District of California

9

First Amendment right, the plaintiff must prove the following additional elements by a

12

preponderance of the evidence:

13

1.

Eberhard engaged in conduct protected under the First Amendment;

14

2.

defendants Dabbs and Reynolds took action against Eberhard on July 23, 2013;

16

3.

defendant Babcock took action against Eberhard on May 21, 2013; and

17

4.

the Officer’s action would chill or silence a person of ordinary firmness from future

15

18

and/or

First Amendment activities; and
5.

19
20

causing the chilling effect was a substantial or motivating factor for the Officer’s

action.

21

A substantial or motivating factor is a significant factor.

22

I instruct you that the first element requires no proof because Eberhard’s newsgathering

23

activities were protected under the First Amendment.

24
25
26
27
28
15

Bane Act Claim – Essential Factual Elements

1
2

Eberhard claims that Babcock, Dabbs, and/or Reynolds intentionally interfered with or

3

attempted to interfere with his civil rights by threats, intimidation, or coercion. To establish this

4

claim, Eberhard must prove all of the following by a preponderance of the evidence:

5

1.

That Babcock, Dabbs, and/or Reynolds made threats of violence against Eberhard,

6

causing Eberhard to reasonably believe that if he exercised his civil rights, the officer(s) would

7

commit violence against Eberhard or his property, and that the officer(s) had the apparent ability

8

to carry out the threats; or

9

That Babcock, Dabbs, and/or Reynolds acted violently against Eberhard and his property,
to prevent him from exercising his civil rights, or to retaliate against him for having exercised

11
United States District Court
Northern District of California

10

those civil rights;

12
13

For the arrest incident on July 23, 2013, Eberhard must also prove that Dabbs and
Reynolds used threats, intimidation or coercion independent and separate from the arrest itself;

14

2.

That Eberhard was harmed; and

15

3.

That the officer’s conduct was a substantial factor in causing Eberhard’s harm.

16
17
18
19
20
21
22
23
24
25
26
27
28
16

Proof of Damages and Measures of Types of Damages

1
2
3

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.

4

If you find for Eberhard on his Section 1983 and/or state Bane Act claims, you must

5

determine his actual damages. Eberhard has the burden of proving damages by a preponderance of

6

the evidence. Damages means the amount of money that will reasonably and fairly compensate

7

Eberhard for any injury you find was caused by the defendants.
In determining the measure of damages, you should consider:

9

1.

The nature and extent of the injuries;

10

2.

The mental, physical, and emotional pain and suffering experienced;

11
United States District Court
Northern District of California

8

3.

The damage to Eberhard’s reputation.

12

It is for you to determine what damages, if any, have been proved.

13

Your award must be based upon evidence and not upon speculation, guesswork or

14

conjecture.

15
16
17
18
19
20
21
22
23
24
25
26
27
28
17

Mitigation of Damages

1
2
3
4

Eberhard has a duty to use reasonable efforts to mitigate damages. To mitigate means to
avoid or reduce damages.
Defendants Babcock, Dabbs, and Reynolds have the burden of proving by a preponderance

5

of the evidence:

6

1.

that Eberhard failed to use reasonable efforts to mitigate damages; and

7

2.

the amount by which damages would have been mitigated.

8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
18

Bane Act Damages

1
2

If you decide that Eberhard has proved his claims under the Bane Act against defendant

3

Babcock, Dabbs, and/or Reynolds, and has proven damages as defined in these instructions, you

4

may award Eberhard up to three times the amount of his actual damages as a penalty against the

5

defendant(s).

6
7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
19

1
2

Nominal Damages for Section 1983 Claims Only
Section 1983 authorizes an award of nominal damages. If you find for Eberhard under his

3

Section 1983 claims, but you find that he has failed to prove damages as defined in these

4

instructions, you must award nominal damages. Nominal damages may not exceed one dollar.

5
6
7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
20

Punitive Damages

1
2

If you find for Eberhard, you may, but are not required to, award punitive damages. The

3

purposes of punitive damages are to punish a defendant and to deter similar acts in the future.

4

Punitive damages may not be awarded to compensate a plaintiff.

5
6
7

Eberhard has the burden of proving by a preponderance of the evidence that punitive
damages should be awarded, and, if so, the amount of any such damages.
You may award punitive damages only if you find that the defendant’s conduct that

8

harmed the plaintiff was malicious, oppressive or in reckless disregard of the plaintiff’s rights.

9

Conduct is malicious if it is accompanied by ill will, or spite, or if it is for the purpose of injuring
the plaintiff. Conduct is in reckless disregard of the plaintiff’s rights if, under the circumstances, it

11
United States District Court
Northern District of California

10

reflects complete indifference to the plaintiff’s safety or rights, or if the defendant acts in the face

12

of a perceived risk that its actions will violate the plaintiff’s rights under federal law. An act or

13

omission is oppressive if the defendant injures or damages or otherwise violates the rights of the

14

plaintiff with unnecessary harshness or severity, such as by the misuse or abuse of authority or

15

power or by the taking advantage of some weakness or disability or misfortune of the plaintiff.

16

If you find that punitive damages are appropriate, you must use reason in setting the

17

amount. Punitive damages, if any, should be in an amount sufficient to fulfill their purposes but

18

should not reflect bias, prejudice or sympathy toward any party. In considering the amount of any

19

punitive damages, consider the degree of reprehensibility of the defendant’s conduct, including

20

whether the conduct that harmed the plaintiff was particularly reprehensible because it also caused

21

actual harm or posed a substantial risk of harm to people who are not parties to this case. You may

22

not, however, set the amount of any punitive damages in order to punish the defendant for harm to

23

anyone other than the plaintiff in this case.

24
25

In addition, you may consider the relationship of any award of punitive damages to any
actual harm inflicted on the plaintiff.

26

Punitive damages may not be awarded against the California Highway Patrol. You may

27

impose punitive damages against one or more of the defendants and not others, and may award

28

different amounts against different defendants. Punitive damages may be awarded even if you
21

1

award plaintiff only nominal, and not compensatory, damages.

2
3
4
5
6
7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
22

1

No Use of Electronic Technology to Conduct Research On or Communicate About a Case

2

During your deliberations, you must not communicate with or provide any information to

3

anyone by any means about this case. Most or all of you use cell phones, smartphones, computers,

4

iPads and similar devices to access the internet and other electronic sources and media. You may

5

not use any device to communicate with anyone any information about this case. That means you

6

cannot talk to anyone on the phone, correspond with anyone, or electronically communicate with

7

anyone about this case through email, texting, Facebook, Twitter or any other social media, or a

8

blog or personal webpage. You can only discuss the case in the jury room with your fellow jurors

9

during deliberations. I expect you will promptly inform me if you become aware that a fellow

10

juror has violated this instruction.

United States District Court
Northern District of California

11

You also cannot use any electronic device or the internet or any other source to investigate

12

the case. It is vitally important that you decide this case based solely on the evidence presented in

13

this courtroom. Information on the internet or available through websites and social media might

14

be wrong, incomplete, or inaccurate. If you become aware that a fellow juror has used the internet

15

or done other research, you must let me know right away.

16

You are permitted to discuss the case only with your fellow jurors during deliberations

17

because they have seen and heard the same evidence you have. In our judicial system, it is

18

important that you are not influenced by anything or anyone outside of this courtroom. Otherwise,

19

your decision may be based on information known only by you and not your fellow jurors or the

20

parties in the case. This would unfairly and adversely impact the judicial process.

21
22
23
24
25
26
27
28
23

1

Duty to Deliberate

2

When you begin your deliberations, you should elect one member of the jury as your

3
4
5
6

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

7

considered all of the evidence, discussed it fully with the other jurors, and listened to the views of

8

your fellow jurors.

9
10

Do not hesitate to change your opinion if the discussion persuades you that you should. Do
not come to a decision simply because other jurors think it is right.

United States District Court
Northern District of California

11

It is important that you attempt to reach a unanimous verdict but, of course, only if each of

12

you can do so after having made your own conscientious decision. Do not change an honest belief

13

about the weight and effect of the evidence simply to reach a verdict.

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
24

Consideration of Evidence and Conduct of the Jury

1
2

I have specifically cautioned you not to use any electronic device or service to

3

communicate about or research this case. Outside of your deliberations, you should also not

4

communicate with anyone in any way and do not let anyone else communicate with you in any

5

way about the merits of the case or anything to do with it. This applies to communicating with

6

your family members, your employer, the media or press, and the people involved in the trial. If

7

you are asked or approached in any way about your jury service or anything about this case, you

8

must respond that you have been ordered not to discuss the matter and to report the contact to the

9

court.
Do not read, watch, or listen to any news or media accounts or commentary about the case

11
United States District Court
Northern District of California

10

or anything to do with it; do not do any research or make any investigation or in any other way try

12

to learn about the case on your own.

13

The law requires these restrictions to ensure the parties have a fair trial based on the same

14

evidence that each party has had an opportunity to address. A juror who violates these restrictions

15

jeopardizes the fairness of these proceedings, and a mistrial could result that would require the

16

entire trial process to start over. If any juror is exposed to any outside information, please notify

17

me immediately.

18
19
20
21
22
23
24
25
26
27
28
25

Communication with Court

1
2

If it becomes necessary during your deliberations to communicate with me, you may send

3

a note to me through my courtroom deputy, Ms. Clark, signed by your presiding juror or by one or

4

more members of the jury. No member of the jury should ever attempt to communicate with me

5

except by a signed writing; I will communicate with any member of the jury on anything

6

concerning the case only in writing, or here in open court. If you send out a question, I will consult

7

with the parties before answering it, which may take some time. You may continue your

8

deliberations while waiting for the answer to any question. Remember that you are not to tell

9

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

11
United States District Court
Northern District of California

10

to the court.

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
26

1

Return of Verdict

2

A verdict form has been prepared for you. After you have reached unanimous agreement

3

on a verdict, your presiding juror will fill in the form that has been given to you, sign and date it,

4

and advise the court that you are ready to return to the courtroom.

5
6
7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
27