Dawkins v. City and County of Honolulu et al
Filing
281
ORDER DENYING PLAINTIFF WHITNEY DAWKINS, JR.S MOTION FOR NEWTRIAL OR AMENDMENT OF JUDGMENT (DOC. 272 ). Signed by JUDGE HELEN GILLMOR on 5/31/2012. (ecs, )CERTIFICATE OF SERVICEParticipants registered to receive ele ctronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
Whitney Dawkins, Jr.,
Plaintiff,
vs.
City and County of Honolulu;
Zane Hamrick; Barry Tong; and
John Does 1-10,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
Civ. No. 10-00086 HG-KSC
ORDER DENYING PLAINTIFF WHITNEY DAWKINS, JR.’S MOTION FOR NEW
TRIAL OR AMENDMENT OF JUDGMENT (DOC. 272)
On February 6, 2012, a jury returned a verdict in favor of
Defendants City and County of Honolulu, Zane Hamrick, and Barry
Tong. (Doc. 260).
The jury found that the Defendants did not use
excessive force in violation of the Fourth Amendment of the
United States Constitution.
The jury found that Defendants
Hamrick and Tong committed a battery under Hawaii state common
law, but that the officers were not liable for the battery
because they did not act with malice.
On March 7, 2012, Plaintiff Whitney Dawkins, Jr. filed a
Motion for a New Trial or Amendment of Judgment. (Doc. 272).
Plaintiff argues that the Court must enter the verdict in his
favor or grant a new trial because the jury’s verdict on the
federal excessive force claim is inconsistent with the jury’s
finding on the state law battery claim.
1
Plaintiff also argues
that the evidence at trial was in his favor.
The jury’s findings on the federal excessive force claim and
the Hawaii common law battery claims are not inconsistent.
evidence at trial supports the jury’s verdict.
The
Plaintiff’s
Motion for a New Trial or Amendment of Judgment (Doc. 272) is
DENIED.
PROCEDURAL HISTORY
On February 22, 2010, the Plaintiff filed a Complaint. (Doc.
1).
There were two Motions to Dismiss, two Motions for Summary
Judgment, and a Motion for Reconsideration filed by the
Defendants.
In four Orders, the Court dismissed eight of the
Plaintiff’s claims.
The Court dismissed all claims against
Defendant Windward Community Federal Credit Union pursuant to a
settlement agreement.
On January 19, 2012, a jury trial was commenced. (Doc. 233).
On February 6, 2012, the jury returned a verdict in favor of
the Defendants. (Doc. 260).
On February 8, 2012, the Clerk of the Court entered
Judgment. (Doc. 267).
On March 7, 2012, Plaintiff filed a Motion entitled, “MOTION
FOR NEW TRIAL AND OR AMENDMENT OF JUDGMENT.” (Doc. 272).
On March 9, 2012, Plaintiff filed an Exhibit “1" in support
2
of his Motion for a New Trial or Amendment of Judgment. (Doc.
275).
On March 20, 2012, the Defendants filed an Opposition. (Doc.
278).
The Plaintiff did not file a Reply.
Pursuant to Local Rule 7.2(d), the Court elected to decide
the Motion without a hearing.
BACKGROUND
On February 22, 2010, Plaintiff Whitney Dawkins filed a
Complaint against the City and County of Honolulu, the Windward
Community Federal Credit Union, and individual Defendants Zane
Hamrick and Barry Tong, alleging numerous violations of his
rights under both federal and state law.
January 20, 2011, the
Court issued an Order dismissing all claims against Defendant
Windward Community Federal Credit Union pursuant to a settlement
agreement. (Doc. 75).
After considering two Motions to Dismiss
and two Motions for Summary Judgment filed by the remaining
Defendants, the Court issued Orders that dismissed all of the
Plaintiff’s claims except for two: (1) excessive force in
violation of the Fourth Amendment of the United States
Constitution, and (2) battery under Hawaii state law.
After a
six and a half day trial, the jury returned a verdict in favor of
the Defendants on these two claims.
Plaintiff’s excessive force and battery claims were based on
3
an incident that began when the Plaintiff attempted to open an
account at the Windward Community Federal Credit Union.
At
trial, employees of the credit union testified that they
attempted to help the Plaintiff open an account.
The employees
stated that the Plaintiff was confused by the process and did not
understand their questions.
The Plaintiff has a mental
disability, and he persisted in his attempts to open an account
even though the communication process broke down.
A credit union
employee eventually asked the Plaintiff to leave.
The Plaintiff
refused, and a credit union employee called the police.
Police
officers Zane Hamrick and Barry Tong arrived at the bank, and
they recognized the Plaintiff.
From previous interactions with
him, the officers knew the Plaintiff was a person with a mental
disability.
Officer Hamrick testified that he asked the
Plaintiff to step outside the credit union to talk.
Hamrick
testified that after the Plaintiff refused, he attempted to
escort the Plaintiff outside with a light touch.
There were different accounts of precisely what events
followed.
Witnesses to the event testified that there was a
physical struggle between the officers and the Plaintiff.
Officer Hamrick testified that the Plaintiff pushed him away,
causing the officer to crash into a chair.
then fired at the Plaintiff.
A taser dart was
A video taken from the taser gun
showed a taser dart being shot in the Plaintiff’s direction,
4
appearing to bounce off the Plaintiff, and the Plaintiff then
fleeing the credit union.
Witnesses testified that the police officers pursued the
Plaintiff, and caught up to him outside the credit union.
One
witness testified that he saw the Plaintiff walking, and then saw
a police officer approach and tackle the Plaintiff to the ground.
Photographs taken by a bystander showed several officers
appearing to be holding the Plaintiff on the ground.
Officer
Hamrick testified that the Plaintiff was struggling and resisting
arrest, and he sprayed the Plaintiff with pepper spray to subdue
him.
Bystanders who witnessed the evident described the force
used by the officers differently.
Although one witness testified
that the officers were punching the Plaintiff even though he was
not resisting, another witness testified that the Plaintiff
appeared to be resisting arrest.
The jury returned a verdict in favor of the Defendants on
both Plaintiff’s federal excessive force and state law battery
claims.
The jury found that Defendants Hamrick and Tong did not
use excessive force in violation of the Fourth Amendment of the
United States Constitution.
As to the state claim, the jury
found that the officers committed a battery against the Plaintiff
by intentionally contacting him, without his consent, in a manner
that was unreasonable under the circumstances.
The jury found,
however, that the officers did not commit the battery with
5
malice.
Under Hawaii state law, police officers are entitled to
qualified immunity from liability for battery unless they acted
with malice.
The jury verdict was in favor of the Defendants on
both claims.
The jury answered the relevant questions as follows:
1.
Did Plaintiff Whitney Dawkins, Jr. establish by a
preponderance of the evidence that Defendant Zane
Hamrick and/or Defendant Barry Tong used excessive
force against Plaintiff, thereby violating his
Fourth Amendment rights under the United States
Constitution?
Jury Answer: No.
2.
On Plaintiff Whitney Dawkins, Jr.’s battery claim
against Defendants City and County of Honolulu,
Zane Hamrick, and Barry Tong:
2A
Do you find by a preponderance of the
evidence that Defendant Zane Hamrick and/or
Defendant Barry Tong intentionally contacted
Plaintiff’s body, without Plaintiff’s
consent, in a manner that was unreasonable
given the circumstances?
Jury Answer: Yes.
2B
Do you find by clear and convincing evidence
that Defendant Zane Hamrick and/or Defendant
Barry Tong acted with malice?
Jury Answer: No.
(Special Verdict Form (Doc. 261-1)) (instructions and answer
lines omitted).
The jury answered question 1, on excessive force, “No.”
jury answered question 2A, on battery, “Yes.”
The
On question 2B, on
the required malice element for the battery, the jury answered:
6
“No.”
In moving for judgment in his favor or for a new trial,
the Plaintiff argues that the jury’s answers to questions 1 and
2A are inherently inconsistent.
STANDARDS OF REVIEW
I.
Judgment as a Matter of Law
Federal Rule of Civil Procedure 50(b) allows a party to file
a renewed motion for judgment as a matter of law after entry of
judgment on a jury verdict.
To file a renewed motion under Rule
50(b), a party generally must first file a motion for judgment as
a matter of law under Rule 50(a) before the case is submitted to
the jury. E.E.O.C. v. Go Daddy Software, Inc., 581 F.3d 951, 961
(9th Cir. 2009).
If the court denies or defers ruling on the
Rule 50(a) motion and the jury returns a verdict against the
moving party, the party may then renew the motion under Rule
50(b). Id.
Because it is a “renewed” motion, a party cannot
“raise arguments in its post-trial motion for judgment as a
matter of law under Rule 50(b) that it did not raise in its
preverdict Rule 50(a) motion.” Id. (quoting Freund v. Nycomed
Amersham, 347 F.3d 752, 761 (9th Cir. 2003)).
The rule that a party must move for judgment as a matter of
law before the case is submitted to a jury does not apply if the
motion alleges inconsistencies in the answers given to a special
verdict. Pierce v. Souther Pacific Transp. Co., 823 F.2d 1366,
7
1369 (9th Cir. 1987) (“When a special verdict does not support a
judgment a reviewing court may make an exception to the Rule
50(b) requirement of a motion for directed verdict as a
prerequisite to a motion JNOV.”); Zhang v. American Gem Seafoods,
Inc., 339 F.3d 1020, 1033 (9th Cir. 2003).
In ruling on a 50(b) motion, the Court may allow judgment on
the verdict, order a new trial, or reverse the jury and direct
the entry of judgment as a matter of law. Fed. R. Civ. P. 50(b).
The court will direct judgment as a matter of law if “the
evidence permits only one reasonable conclusion, and that
conclusion is contrary to the jury’s verdict.”
Go Daddy
Software, Inc., 581 F.3d at 961 (quoting Josephs v. Pac. Bell,
443 F.3d 1050, 1062 (9th Cir. 2006)).
When considering the
motion, the court “may not make credibility determinations or
weigh the evidence.” Id. (quoting Reeves v. Sanderson Plumbling
Prods., Inc., 530 U.S. 133, 150 (2000)).
Instead, the court
reviews the evidence “in the light most favorable to the
nonmoving party” and draws “all reasonable inferences in that
party’s favor.” Id. (quoting Josephs, 443 F.3d at 1062)).
“While
the district court may not resolve conflicts in the testimony or
weigh the evidence, it may evaluate evidence at least to the
extent of determining whether there is substantial evidence to
support the verdict. ‘[A] mere scintilla of evidence will not
suffice.’” Von Zuckerstein v. Argonne Nat’l Laboratory, 984 F.2d
8
1467, 1471 (7th Cir. 1993) (citing La Montagne v. American
Convenience Products, Inc., 750 F.2d 1405, 1410 (7th Cir. 1984)).
The Ninth Circuit has defined substantial evidence as “such
relevant evidence as reasonable minds might accept as adequate to
support a conclusion even if it is possible to draw two
inconsistent conclusions from the evidence.” Maynard v. City of
San Jose, 37 F.3d 1396, 1404 (9th Cir. 1994) (citing George v.
City of Long Beach, 973 F.2d 706, 709 (9th Cir. 1992)).
II.
New Trial
Federal Rule of Civil Procedure 50(b) allows a party filing
a renewed motion for judgment as a matter of law to include an
alternative request for a new trial under Rule 59.
Rule 59
allows the court to grant a new trial after a jury trial “for any
reason for which a new trial has heretofore been granted in an
action at law in federal court.” Fed. R. Civ. P. 59(a).
Although
Rule 59 does not specify the grounds on which a court may order a
new trial, historically recognized grounds include: “that the
verdict is against the weight of the evidence, that the damages
are excessive, or that, for other reasons, the trial was not fair
to the party moving.” Molski v. M.J. Cable, Inc., 481 F.3d 724,
729 (9th Cir. 2007) (quoting Passantino v. Johnson & Johnson
Consumer Prods., 212 F.3d 493, 510 n. 15 (9th Cir. 2000)).
“When a motion for a new trial is based on insufficiency of
9
the evidence, a ‘stringent standard applies’ and a new trial may
be granted ‘only if the verdict is against the great weight of
the evidence or it is quite clear that the jury has reached a
seriously erroneous result.’” MLM Property, LLC v. Country Cas.
Ins. Co. 2010 WL 1948609, at * 2 (D. Or. 2010) (quoting Digidyne
Corp. v. Data Gen. Corp., 734 F.2d 1336, 1347 (9th Cir. 1984)).
ANALYSIS
The Plaintiff argues that the Court should amend the
Judgment to render it in his favor, or grant a new trial, because
the jury’s verdict is inconsistent.
Although the Plaintiff does
not explicitly argue that the verdict must also be overturned
based on the weight of the evidence, at several points in his
Motion he argues that the evidence at trial was in his favor.
Based on the Plaintiff’s repeated references to the weight of the
evidence, that Court construes his Motion as both arguing that he
is entitled to judgment as a matter of law or a new trial based
on the inconsistency of the verdict and based on the weight of
the evidence.
I.
Inconsistency in Verdict
A party may file a motion for judgment as a matter of law on
the ground that the jury’s answers to the verdict questions are
inconsistent. See Pierce v. Souther Pacific Transp. Co., 823 F.2d
10
1366, 1369 (9th Cir. 1987).
The procedure for resolving an
inconsistency in a verdict varies depending on whether the jury
was given a special verdict under Federal Rule of Civil Procedure
49(a), or a general verdict (with or without special
interrogatories) under Federal Rule of Civil Procedure 49(b). See
Floyd v. Laws, 929 F.2d 1390, 1395 (9th Cir. 1991); Zhang v.
American Gem Seafoods, Inc., 339 F.3d 1020, 1036 (9th Cir. 2003).
The nature of the verdict “is of critical importance because
inconsistent general verdicts on separate claims are typically
permitted to stand . . . whereas irreconcilably inconsistent
special verdicts require a new trial.” Duhn Oil Tool, Inc. v.
Cooper Cameron Corp., 818 F.Supp.2d 1193, 1219 (E.D. Cal. 2011).
Whether a verdict is special or general also may affect the
waiver rules that apply when a party fails to object prior to the
jury being dismissed. See id.
A.
The jury was given a general verdict and a special
verdict
Federal Rule of Civil Procedure 49 contemplates three types
of verdicts: (1) common law general verdicts without
interrogatories, (2) special verdicts under Rule 49(a), and (3)
general verdicts with interrogatories under Rule 49(b). Zhang,
339 F.3d at 1031.
In a general verdict, a jury makes a finding
as to the ultimate legal and factual question at issue in a case.
Floyd, 929 F.2d at 1395. In a special verdict, a jury only makes
11
factual findings, and the court then applies the law to those
findings. Id.
In a general verdict with written questions (also
called “special interrogatories”), the jury both answers
questions of fact and reaches the ultimate legal question at
issue. Id.
A verdict form may be comprised of a mixture of these
types, and a jury may be asked to “return multiple general
verdicts as to each claim, and each party, in a lawsuit, without
undermining the general nature of its verdicts.” Zhang, 339 F.3d
at 1031.
The distinction between general and special verdicts is
sometimes unclear in practice, and “[o]ften courts are unable to
decide whether a verdict is a special verdict under Rule 49(a) or
a general verdict with interrogatories under Rule 49(b).” Floyd,
929 F.2d at 1395 (“As a practical matter, it seems that the form
of a general verdict with interrogatories is virtually
indistinguishable from that of a special verdict.”); see also
Mason v. Ford Motor Co., Inc., 307 F.3d 1271, 1274-75 (11th Cir.
2002) (“Categorizing a verdict as a general verdict, or as a
special verdict under Rule 49(a), or as a general verdict with
special interrogatories under Rule 49(b), should be—but too often
seems not—a simple matter.”); Denny v. Ford Motor Co., 42 F.3d
106, 111 (2d Cir. 1994) (“no clear definition in our caselaw of
what constitutes a Rule 49(a) verdict and what constitutes a Rule
49(b) verdict”); Loughman v. Consol-Pennsylvania Coal Co., 6 F.3d
12
88, 104 n. 16 (3d Cir. 1993) (“as in many cases, it is not
entirely clear whether the verdict is governed by Fed. R. Civ. P.
49(a) or 49(b)”).
Although special verdicts and general verdicts with special
interrogatories sometimes appear similar, “the key” is “whether
the jury announces the ultimate legal result of each claim.”
Zhang, 339 F.3d at 1031.
“If the jury announces only its
ultimate conclusions, it returns an ordinary general verdict; if
it makes factual findings in addition to the ultimate legal
conclusions, it returns a general verdict with interrogatories.
If it returns only factual findings, leaving the court to
determine the ultimate legal result, it returns a special
verdict.” Id.
The three basic categories of verdicts (special verdicts,
general verdicts, and general verdicts with interrogatories), are
“not adequate to capture every answer that a jury may give.”
Zhang, F.3d at 1031.
Juries may also be asked to make subsidiary
legal determinations that do not resolve the ultimate legal
question at issue:
In addition to the ultimate legal conclusion in a case,
a jury may make legal conclusions as to subsidiary
issues, such as affirmative defenses, or the amount of
damages owed, which are neither findings of fact nor
quite “verdicts.” Such answers are similar in kind to
general verdicts, because they require application of
the law to the facts, but we have found no precise
label for them.
Id.
13
Here, the jury was given a general verdict for the excessive
force claim and a special verdict for the battery claim.
For the
excessive force claim, the jury was asked to determine whether
the Defendants used excessive force in violation of the Fourth
Amendment and, if so, the amount of the Plaintiff’s damages.
As
the jury was asked to determine the ultimate question of the
Defendants’ liability for the excessive force claim, the jury was
presented with a general verdict on that claim. See Floyd, 929
F.2d at 1395.
Although the verdict form included a separate
question about the Plaintiff’s damages for excessive force, a
“damage award is not really a separate general verdict.” Zhang,
339 F.3d at 1036.
The jury determined that the Defendants were
not liable for excessive force.
With respect to the battery claim, however, the jury was
instead asked to answer two questions of fact.
The jury was
first asked whether Defendants Hamrick and/or Tong intentionally
contacted the Plaintiff’s body in a manner that was unreasonable
under the circumstances.
This is primarily a question of fact.
Durante v. City of Reno, 2006 WL 240797, at *6 (D. Nev. 2006)
(“Whether or not [an action] . . . constitutes a battery is
generally a question of fact.”).
The jury was then asked
whether, if Hamrick and Tong had so contacted the Plaintiff, they
did so with malice.
The existence of malice is also generally a
question of fact. See Beamer v. Nishiki, 670 P.2d 1264, 1274
14
(Haw. 1983).
Under Hawaii state law, police officers are
entitled to qualified immunity from liability for battery unless
there is clear and convincing evidence that they acted with
malice.
As the jury was only asked to answer two factual questions
regarding the battery claim and not about the Defendants’
ultimate legal liability for battery, these questions together
constituted a special verdict. Id.; see also Bates v. Jean, 745
F.2d 1146 (7th Cir. 1984) (determining that a similarly formed
verdict was a special verdict).
The verdict form internally
applied the law to the jury’s determination of the factual issues
bearing on the battery claim: whether a battery occurred and, if
so, whether it was committed with malice.
The verdict form
instructed the jury to answer the subsequent questions regarding
Plaintiff’s damages for the battery only if it first answered
both of the factual questions in the affirmative.
The jury
answered the first question in the affirmative, finding that both
Hamrick and Tong had intentionally contacted the Plaintiff’s body
in a manner that was unreasonable under the circumstances.
But
the jury answered the second question, as to whether there was
clear and convincing evidence that the officers acted with
malice, in the negative.
B.
The jury’s answers to the verdict questions are not
inherently inconsistent
15
The Plaintiff argues that the jury’s special verdict finding
that Defendants Hamrick and Tong intentionally contacted his body
in a manner that was unreasonable under the circumstances (i.e.,
committed a battery) is inherently inconsistent with the jury’s
general verdict that the officers did not use excessive force.
If the officers committed a battery, Plaintiff argues, then they
also necessarily used excessive force.
Plaintiff maintains that
the Court must render judgment in his favor on the excessive
force claim or order a new trial as a result.
When there is an inconsistency between an answer to a
general verdict and a written factual question, the court must
“attempt to sustain the judgment by harmonizing the answers and
the verdict.” Wilkes v. Reyes, 5 F.3d 412, 415 (9th Cir. 1993);
see also Gallick v. Baltimore & Ohio R. Co., 372 U.S. 108, 119
(1963) (In considering jury answers to questions in a special
verdict, “it is the duty of the courts to attempt to harmonize
the answers, if it is possible under a fair reading of them . . .
.
We therefore must attempt to reconcile the jury's findings, by
exegesis if necessary, . . . before we are free to disregard the
jury’s special verdict and remand the case for a new trial.”);
Atlantic & Gulf Stevedores, Inc., v. Ellerman Lines, Ltd., 369
U.S. 355, 364 (1962) (“Where there is a view of the case that
makes the jury’s answers to special interrogatories consistent,
they must be resolved that way”); Affolder v. New York, Chi. &
16
St. L. R. Co., 339 U.S. 96 (1950).
If the court cannot harmonize the answers, Federal Rule of
Civil Procedure 49(b) provides that the court may: (1) enter “an
appropriate judgment according to the answers, notwithstanding
the general verdict;” (2) “direct the jury to further consider
its answers and verdict;” or (3) “order a new trial.”
A court
may “exercise its authority under Rule 49(b) and enter judgment
in accordance with the answers,” however, “only if it is not
reasonably possible to resolve the apparent inconsistency between
the answers and the verdict.” Wilkes, 5 F.3d at 415.
Here, no action is necessary to remedy the verdict because
the jury’s answers to the verdict questions are not inherently
inconsistent.
The tort of excessive force under the Fourth
Amendment of the United States Constitution is not identical to
the tort of battery under Hawaii common law.
Excessive force and
battery are distinct claims that are derived from different legal
systems, and they have different definitions, different
applicable standards, and different bodies of case-law
interpreting their scope and application. See Askew v. Millerd,
191 F.3d 953, 958 (8th Cir. 1999) (an “assault and battery . . .
may not constitute an excessive force”); Haberthur v. City of
Raymore, 119 F.3d 720, 723 (8th Cir. 1997) (“Section 1983 is
intended to remedy egregious conduct, and not every assault or
battery which violates state law will create liability under
17
it.”); Rogers v. Cofield, 2011 WL 6140974, at *12 (D. Mass. 2011)
(“plaintiff correctly points out that the battery and the section
1983 excessive force claims are not mirror images.”).
The jury was instructed to consider the Plaintiff’s
excessive force and battery claims separately, and was given
different instructions for each claim setting forth their meaning
and scope.
Although excessive force and battery both require an
inquiry into the “reasonableness” of the use of physical force,
federal courts and Hawaii state courts’ case-law interpretations
of that standard differ.
The Ninth Circuit Court of Appeals has considered excessive
force claims in many situations, and has set forth a number of
specific and detailed factors that should be considered when
evaluating whether force is excessive under the Fourth Amendment,
including: (1) the severity of the crime or other circumstances
to which the officers were responding; (2) whether the plaintiff
posed an immediate threat to the safety of the officers or to
others; (3) whether the plaintiff was actively resisting arrest
or attempting to evade arrest by flight; (4) the amount of time
and any changing circumstances during which police officers had
to determine the type and amount of force that appeared to be
necessary; (5) the type and amount of force used; (6) the
availability of alternative methods to take the plaintiff into
custody, and/or subdue him; and (7) whether a warning was given
18
before force was used, if it was feasible to give a warning. See
Ninth Circuit Model Jury Instruction No. 9.22.
Hawaii state courts have not developed as detailed a body of
case-law interpreting the meaning of unreasonableness in the
context of battery.
Nor have they adopted the Ninth Circuit’s
jurisprudence on excessive force for battery claims. Cf. Zhang,
339 F.3d at 1034, n. 7 (considering an alleged inconsistency
between a jury’s verdicts on federal and state law discrimination
claims, and noting: “[The appellants] cite no caselaw that
indicates that the federal definition of ‘motivating factor’ is
equivalent to the Washington law definition of ‘substantial
factor.’ . . . [The Washington Supreme Court] did not suggest
that this test was equivalent to the test under federal law, and
no subsequent Washington or Ninth Circuit decision has done
so.”).
As excessive force and battery are unique claims with unique
bodies of case-law interpreting each claim, the jury was given
quite different instructions for applying each claim to the facts
of the case.
For the excessive force claim, the jury was
instructed to take into account the seven specific factors,
listed above, which are based on Ninth Circuit case-law and the
Ninth Circuit Model Jury Instruction on excessive force.
The
jury was not instructed to take into account these factors with
respect to the Hawaii state common law battery claim.
19
For the
battery claim, the jury was given a quite different instruction
that directed the jury to determine whether the Defendants
intentionally contacted the Plaintiff’s body in a manner that was
unreasonable given the circumstances.
Although both excessive force and battery claims require
consideration into the “reasonableness” of force, they are not
interchangeable claims and the meaning of “reasonableness”
provided by the courts with respect to each claim has not been
held to be identical.
As a result, there is no inconsistency
between the jury’s finding that the officers did not use
excessive force and the jury’s finding that the officers
committed a battery. See Carter v. Chicago Police Officers, 165
F.3d 1071 (7th Cir. 1998) (“In light of the different standards
required to hold [the defendants] liable on the federal and state
claims [for excessive force and battery],” the jury’s disparate
liability findings on these claims was a “permissible
conclusion.”); Frohmuth v. Metropolitan Gov. of Nashville and
Davidson County, Tennessee, 101 Fed.Appx. 56, 60 (6th Cir. 2004)
(finding no necessary inconsistency between a jury’s finding that
police officers used excessive force under the United States
Constitution but did not commit an assault and battery under
state law).
The jury’s findings with respect to battery and
excessive force are not inconsistent, therefore there is no need
to reconcile the verdict.
20
C.
Even if the jury’s answers had been inconsistent, the
verdict would still stand
It is well-established that courts “have the power to uphold
the time-honored right of a jury to render a compromise verdict,
and to sustain a verdict which is substantial.” Karcesky v.
Laria, 114 A.2d 150, 154 (Pa. 1955).
“One of the great values of
jury trial . . . is its ability to reflect the community sense of
over-all fairness, and this may not in all cases coincide with
the written law and the instructions which the court must give.”
F. James & G. Hazard, Civil Procedure 394 (3d ed. 1985).
In
keeping with purpose of the jury trial, “the refusal of a trial
court to set aside a verdict obviously representing a compromise
has frequently, and quite properly, been upheld.” Id. at 384; see
also City of Los Angeles v. Heller, 475 U.S. 796 (1986) (Stevens,
J., dissenting).1
In the Ninth Circuit, legal inconsistencies between general
verdicts on different claims are upheld. Zhang v. American Gem
Seafoods, Inc., 339 F.3d 1020, 1035 (9th Cir. 2003) (“[L]egally
inconsistent verdicts ‘may nonetheless stand on appeal even
though inconsistent.”) (quoting International Longshoremen's
Union v. Hawaiian Pineapple Co., 226 F.2d 875 (9th Cir. 1955)).
1
Justice Stevens’ contention that inconsistent verdicts can
be allowed to stand was not disputed by the majority. See Zhang,
339 F.3d at 1035 n. 9 (“This particular point of Justice
Stevens’s dissent was not contradicted by the majority opinion
for the Court.”).
21
In Zhang, the Ninth Circuit Court of Appeals explained that
“inconsistencies are problematic and require a new trial only if
they arise between two or more factual findings.” 339 F.3d at
1036.
In a special verdict, of course, a jury only makes factual
findings and the court must apply the law to those findings.
Inconsistencies in special verdicts are problematic when the
court would have to set aside one of the jury’s factual findings
to reach a legal outcome, because doing so would infringe on the
right to a jury trial under the Seventh Amendment of the United
States Constitution. Id. (“The Seventh Amendment to the
Constitution guarantees that ‘no fact tried by a jury shall be
otherwise re-examined in any Court of the United States’ except
‘according to the rules of the common law.’”).
Inconsistencies
between answers to written factual questions in a general verdict
may also be problematic for the same reason. Id.
When the
factual answers are consistent and it is only the jury’s answer
to the general verdict on liability that is inconsistent,
however, “trial courts have discretion to enter judgment on the
factual findings.” Id.
Here, the alleged inconsistency in the verdict does not
arise between “two or more factual findings.” Id.
Instead,
Plaintiff argues that there is a legal inconsistency between the
jury’s conclusion that the officers did not use excessive force
22
on the federal claim and the jury’s conclusion as to the first
part of the common law elements of the state battery claim.
Even
if the jury’s conclusions regarding these separate claims were
legally inconsistent, the verdict would be upheld.
This type of
inconsistency, between a general verdict on one claim and a
factual finding in a special verdict on another claim, is akin to
an inconsistency between two general verdicts on similar federal
and state claims.
The Court is without power to remedy
inconsistencies of this nature. Zhang, 339 F.3d at 1034; see also
Venezia v. Bentley Motors, Inc., 374 Fed.Appx. 765, 768 (9th Cir.
2010) (inconsistencies between general verdicts on federal and
state claims “do not merit new trials.”).
As the Court of
Appeals explained in Zhang, considering an alleged inconsistency
between a jury’s split findings on federal and state law
discrimination claims:
The appellants’ claim that the split verdict between
the federal law and Washington state law discrimination
claims is inconsistent fails because such
inconsistencies, when permitted by jury instructions,
are simply not reviewable upon appeal. Unless one
legal conclusion is the prerequisite for another,
inconsistencies between them must stand.
339 F.3d at 1034; see also
Malm v. United States Lines Co., 269
F.Supp. 731, 731-732 (S.D.N.Y.), aff’d, 378 F.2d 941 (2d Cir.
1967) (per curiam) (“Inconsistent jury verdicts upon different
counts or claims are not an anomaly in the law, which at times
recognizes a jury’s right to an idiosyncratic position . . . .”).
23
Plaintiff has failed to point to an inconsistency in the
verdict and, even if the jury’s findings on the federal excessive
force claim and state battery claim were inconsistent, they would
nevertheless be upheld.
II.
Weight of the Evidence at Trial
The Plaintiff also appears to argue that he is entitled to
judgment in his favor or a new trial because the evidence
presented at trial was in his favor.
The standard for
overturning a jury verdict and entering a contrary judgment or
ordering a new trial based on the weight of the evidence is very
high.
The court will direct judgment as a matter of law only if
“the evidence permits only one reasonable conclusion, and that
conclusion is contrary to the jury’s verdict.”
Go Daddy
Software, Inc., 581 F.3d at 961 (quoting Josephs v. Pac. Bell,
443 F.3d 1050, 1062 (9th Cir. 2006)).
The court must review the
evidence “in the light most favorable to the nonmoving party” and
draw[] “all reasonable inferences in that party’s favor.” Id.
(quoting Josephs, 443 F.3d at 1062)). When considering the
motion, the court “may not make credibility determinations or
weigh the evidence.” Id. (quoting Reeves v. Sanderson Plumbling
Prods., Inc., 530 U.S. 133, 150 (2000)).
A new trial, similarly,
may be granted “only if the verdict is against the great weight
of the evidence or it is quite clear that the jury has reached a
24
seriously erroneous result.” MLM Property, LLC v. Country Cas.
Ins. Co. 2010 WL 1948609, at * 2 (D. Or. 2010) (quoting Digidyne
Corp. v. Data Gen. Corp., 734 F.2d 1336, 1347 (9th Cir. 1984)).
A.
The verdict is not against the great weight of the
evidence
Viewed in the light most favorable to the Defendants, the
evidence at trial supports the jury’s verdict.
Employees from
the credit union testified that they called the police because
the Plaintiff was being argumentative and refusing to leave.
Officer Hamrick testified that when he arrived at the scene he
asked the Plaintiff to step outside the bank, and the Plaintiff
refused.
Hamrick testified that he then attempted to escort the
Plaintiff outside with a light touch, but the Plaintiff resisted.
A struggle ensued between Officers Hamrick and Tong and the
Plaintiff, and Hamrick testified that the Plaintiff pushed him
away, causing him to crash into a chair.
The officers testified
that because they were unable to control the Plaintiff, they
fired a taser at him.
The Plaintiff then ran out of the bank.
Testimony from several individuals, including the officers
and bystander witnesses outside the credit union, reflected that
the officers caught up to the Plaintiff and were able to hold him
down on the ground.
Although one witness who happened upon the
scene testified that he saw the officers punching the Plaintiff
even though he was not resisting, other witnesses at the scene
25
gave very different descriptions of the incident.
Another
witness, also an uninvolved passerby, testified that the
Plaintiff was resisting and that the officers did not use an
excessive amount of force to subdue him.
While the evidence at trial was at times conflicting and
ambiguous, there was testimony that supports the jury’s verdict,
particularly when viewed in the light most favorable to the
Defendants.
It is the duty of the jury, and not the Court, to
determine the credibility of the witnesses and their different
versions of the events. United States v. Leung, 35 F.3d 1402,
1405 (9th Cir. 1994).
The evidence was far from being so clearly
in the Plaintiff’s favor that it “permits only one reasonable
conclusion and that conclusion is contrary to the jury’s
verdict.” Go Daddy Software, Inc., 581 F.3d at 961 (internal
citation and quotation marks omitted).
It is not “quite clear
that the jury has reached a seriously erroneous result.” MLM
Property, LLC v. Country Cas. Ins. Co. 2010 WL 1948609, at * 2
(internal citation and quotation marks omitted).
Plaintiff fails
to establish that he is entitled to judgment as a matter of law
or to a new trial based on the great weight of the evidence.
26
CONCLUSION
Plaintiff Whitney Dawkins, Jr.’s Motion for a New Trial or
Amendment of Judgment (Doc. 272) is DENIED.
IT IS SO ORDERED.
DATED: May 31, 2012, Honolulu, Hawaii.
/S/ Helen Gillmor
Helen Gillmor
United States District Judge
Dawkins, Jr. v. City and County of Honolulu; Zane Hamrick; Barry
Tong; John Does 1-10, Civ. No. 10-00086 HG-KSC; ORDER DENYING
PLAINTIFF WHITNEY DAWKINS, JR.’S MOTION FOR NEW TRIAL OR
AMENDMENT OF JUDGMENT (DOC. 272).
27
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?