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George v. City of Long Beach

filed: July 31, 1992.


Appeal from the United States District Court for the Central District of California. D.C. No. CV-87-2252-GHK. George H. King, Magistrate Judge, Presiding.

Before: Melvin Brunetti, Diarmuid F. O'Scannlain, and Thomas G. Nelson, Circuit Judges. Opinion by Judge T.g. Nelson.

Author: Nelson

T.G. NELSON, Circuit Judge:

Larry George ("George") appeals an adverse judgment following a jury verdict of zero damages against the arresting officers and the City of Long Beach. George contends the district court's ruling that the officers' warrantless entry violated his Fourth Amendment rights entitles him to nominal damages. He also contends the district court improperly dismissed his state law claims as well as his section 1983 claims against the City of Long Beach. We reverse the district court's dismissal of the state law claims, vacate the judgment, and remand for: (1) entry of judgment for George, (2) entry of an award of $1 in nominal damages on his section 1983 claim, and (3) trial on the state law false imprisonment claim.


Appellant Larry George participated in at least three armed bank robberies, two of which occurred on the afternoon of the day of his arrest. He was convicted of all three robberies and his convictions were upheld by this court.*fn1 This civil rights action under 42 U.S.C. § 1983 resulted from the manner in which the arrest was effected. The facts surrounding George's arrest are set out in detail in George I. It is sufficient to say here that Long Beach police officers, assisted by a federal agent, had probable cause to believe that George was the robber and that he was in his apartment. George I, 883 F.2d at 1412. The city officers entered his apartment without a warrant, and without knocking. They saw George in his bedroom and told him to "hold it." When George moved, however, one of the officers, believing George to be holding a gun, fired a shotgun, striking George in the arm. The arm was ultimately amputated.

In George I, this court held that the warrantless arrest "was not excused by exigent circumstances and consequently was effected unlawfully." Id. at 1415. The district court here granted George's motion for partial summary judgment on that issue, and held that the officers were not entitled to qualified immunity as to the warrantless arrest.

The case went to trial on the issues of (1) whether the officers were excused from compliance with California's knock-notice statute (Cal. Penal Code § 844), (2) whether they used excessive force in arresting George, (3) whether the officers were liable for false arrest and false imprisonment, (4) whether the officer who fired the shot was liable for battery, (5) whether the officers acted wantonly, oppressively, or with malice, and (6) the amount of damages suffered by George as a result of the unlawful warrantless entry. The jury ruled against George on all issues and found no damages by reason of the warrantless entry.

George requested a jury instruction on nominal damages which was refused by the district court. At the Conclusion of George's case, the district court dismissed the state law claims for false arrest and imprisonment, on the basis that in order for there to have been an unlawful arrest to support these claims, there must have been a lack of probable cause for the arrest. Since there was probable cause here, the court apparently reasoned that the officers were immune from liability. The district court had previously severed the Monell*fn2 claim against the City and dismissed that claim when the verdict was returned. The district court entered judgment against George on all of the claims that had been allowed to go to the jury.



The district court instructed the jury that, if it found no actual damages flowing from the violation of George's rights, it could award nominal damages. George correctly points out that this instruction misstated the law. In this Circuit, nominal damages must be awarded if a plaintiff proves a violation of his constitutional rights. Floyd v. Laws, 929 F.2d 1390, 1401 (9th Cir. 1991); Romberg v. Nichols, 953 F.2d 1152, 1161 (9th Cir. 1992) (per curiam).

The appellees ("City") attempt to distinguish Floyd, arguing that the violation of rights in Floyd was the proximate cause of the plaintiff's harm, whereas here the concededly illegal warrantless entry did not cause George any harm. We find this attempted distinction nonsensical. Floyd clearly held that nominal damages must be awarded "as a symbolic vindication of [the plaintiff's] constitutional right" whether or not the constitutional violation causes any actual damage. Floyd, 929 F.2d at 1403. In light of the court's finding that the officer's warrantless entry of George's house violated the Fourth Amendment, George was entitled to judgment and $1 in nominal damages on his section 1983 claim. We therefore vacate the judgment in favor of the defendants on this claim, and remand for entry of judgment and an award of nominal damages for George.

George argues that the incorrect nominal damages instruction led the jury improperly to deny him compensatory damages. Jury instructions are reviewed for an abuse of discretion to determine if they are misleading or inadequate. United States v. Beltran-Rios, 878 F.2d 1208, 1214 (9th Cir. 1989). We are not persuaded that the instructions were misleading or inadequate. The jury was adequately instructed*fn3 on the elements of George's claims, and found that his injuries were not caused by the illegal entry. That Conclusion would ...

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