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Fikes v. Cleghorn

filed: February 17, 1995.

ERIC FIKES, PLAINTIFF-APPELLANT,
v.
JOHN CLEGHORN; B. CERVANTES; SGT. LEWIS, CITY OF CORONA POLICE DEPARTMENT; OFFICER MELENDEZ, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Central District of California. D.C. No. CV-91-03911-LGB. Lourdes G. Baird, District Judge, Presiding.

Before: William C. Canby, Jr., Edward Leavy and Thomas G. Nelson, Circuit Judges. Opinion by Judge Canby.

Author: Canby

CANBY, Circuit Judge.

I.

Eric Fikes appeals a district court judgment, entered upon a jury verdict, denying his claim for relief under 42 U.S.C. § 1983. Fikes argues that the district court erred in instructing the jury regarding the use of excessive force by police officers. He also contends that the district Judge who initially presided over his case issued an illegal standing order requiring counsel for plaintiff and defendants to file a joint set of jury instructions. We reject Fikes' arguments and affirm the district court's judgment.

II.

This case arises out of Fikes' arrest by members of the Corona, California, police force. In June of 1991, two Corona police officers pursued Fikes by automobile and then on foot into a walled-in cul-de-sac. Fikes was attempting to scale the wall when one police officer reached him. The officer pulled him off the wall and onto the ground so that he was lying face-down on the ground and kicking behind himself at the officer. Having Fikes thus situated, the officer handcuffed him. At some point during the course of the arrest, the officer released his police dog from his car by use of a remote control device. The dog went to Fikes and bit him on the shoulder and upper arm until the officer commanded the dog to release Fikes.

Fikes eventually pleaded guilty to driving under the influence of alcohol, driving without a license, and resisting arrest. In 1991, Fikes filed a § 1983 complaint against the arresting officers and several other defendants alleging that the officers deprived him of his Fourth Amendment right to be free from unreasonable seizures by using excessive force in effecting the arrest.

As the case approached trial, the presiding district Judge issued a standing order that required the parties to file a single set of jury instructions prior to trial. Fikes refused to comply with this order, and, as a result, the trial did not begin on the date for which it was scheduled. The case was then transferred to a second district Judge who did not enforce the standing order, but instead allowed both parties to propose jury instructions to the court.

At a hearing before the second Judge regarding jury instructions, Fikes proposed the following instruction regarding the use of excessive force:

The test you are to use to determine if the force used in this case was excessive in [sic] this: pay careful attention to the facts and circumstances, including the severity, or lack of severity, of the alleged crime in issue; whether the person against whom the force was used posed an immediate threat to the safety of the police or others; and whether the person against whom the force was used was actively resisting arrest or attempting to evade arrest by flight (trying to get away.) You must weigh together all of these three factors to determine whether or not the force used was or was not excessive.

The court rejected this instruction on the ground that it emphasized the importance of three factors for the jury to consider without pointing out other factors that could be relevant to determining whether police officers used excessive force. Rather than giving Fikes' proposed instruction, the court instructed the jury that

in making a lawful arrest, an officer has the right to use such force as is necessary under the circumstances to effect the arrest. Whether or not the force used in making an arrest was unreasonable is a question to be determined by you in light of all the surrounding circumstances. Now, you must determine the degree of force that a reasonable and prudent officer on the scene at that time would have applied in effecting the arrest under the circumstances shown from the evidence received in the case.

Fikes also proposed two jury instructions regarding the use of deadly force. These instructions set out a definition of deadly force and described the constitutional limits on the permissible use of deadly force. The court refused to give either instruction, reasoning that the jury did not need to find that the officers used deadly force in order to determine that ...


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