                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 28 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



MATRICE L. ANDERSON,                             No. 09-56442

              Plaintiff - Appellant,             D.C. No. 2:07-cv-05612-SVW-RC

  v.
                                                 MEMORANDUM *
CITY OF LOS ANGELES, public entity;
WILLIAM BRATTON, Officer,
individually; LOPEZ, Officer #36320,
Erroneously Sued As Jose G. Lopez; R.
BROWN, Officer #25781; HICK, Officer
#35401,

              Defendants - Appellees.



                    Appeal from the United States District Court
                        for the Central District of California
                    Stephen V. Wilson, District Judge, Presiding

                     Argued and Submitted December 3, 2012
                              Pasadena, California

Before: WARDLAW, BEA, and N.R. SMITH, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       Matrice Anderson was detained by two Los Angeles police officers after a

911 caller reported a disturbance at a grocery store and a security guard identified

Anderson’s car as containing the suspect. Anderson sued the officers and the city

under 42 U.S.C. § 1983 for violating her Fourth Amendment rights through

unlawful detention, false arrest, and use of excessive force. Anderson appeals

from an adverse judgment following the jury verdict for defendants and the district

court’s denial of her motion for new trial. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

      In making this determination, we assume that Anderson was entitled to a

jury instruction on the law of unlawful arrest and probable cause, and that the

district court erred in denying her request. See Clem v. Lomeli, 566 F.3d 1177,

1181 (9th Cir. 2009). However, this error was harmless in light of the jury

instructions that the district court did give, which accurately stated the law

governing whether the investigatory stop was permissible. See Allen v. City of

Portland, 73 F.3d 232, 235 (9th Cir.1996); Washington v. Lambert, 98 F.3d 1181,

1185 (9th Cir.1996). The jury concluded that the length and scope of the police

officers’ detention of Anderson was reasonable as an investigatory stop. As long

as Anderson’s detention was an investigatory stop, found to be reasonable, such

detention could not have constituted an arrest. Because the jury found that

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Anderson’s detention was reasonable as an investigatory stop, the jury could not

have found that an arrest occurred, and the jury therefore would not have reached

the question whether such an arrest was supported by probable cause, even if the

district court had given Anderson’s requested instruction on that issue. Thus, the

district court’s failure to give Anderson’s proposed unlawful arrest and probable

cause instructions was harmless.

      The district court correctly did not instruct the jury that the defendants bore

the burden of production of evidence with regard to reasonable suspicion justifying

the investigatory stop. There is no authority to support such an instruction shifting

the burden to defendants.

      Anderson’s claim that the jury verdict is unsupportable as a matter of law is

not properly preserved on appeal because no such argument was raised in

Anderson's post-trial motion. Even if the district court did reject such a challenge

to the verdict, this would not constitute a clear abuse of discretion. Desrosiers v.

Flight Int'l of Fla., 156 F.3d 952, 957 (9th Cir. 1998).

      AFFIRMED.




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                                                                                FILED
Anderson v. City of Los Angeles, No. 09-56442                                    JAN 28 2013

                                                                            MOLLY C. DWYER, CLERK
WARDLAW, Circuit Judge, dissenting in part:                                   U .S. C O U R T OF APPE ALS




       The majority holds that it was harmless error for the district court to

completely exclude from the jury’s consideration an entire claim about which

conflicting evidence was adduced at trial, based on the district judge’s professed

subjective belief that he did not “think an arrest ever occurred.” Although

Anderson alleged in her complaint that she was unlawfully arrested and presented

evidence at trial in support of that allegation, and even though the defendants never

moved for summary judgment or judgment as a matter of law, the district court

ruled on the record that it would not “allow that question to be presented to the

jury.” After Anderson moved for a new trial, the district court did an abrupt about-

face, concluding for the first time in a post-trial order that its instructions to the

jury had been sufficient to encompass the unlawful arrest claim after all. Because

the majority’s acquiescence to this post-hoc rationalization is contrary to our law, I

respectfully dissent from this aspect of the disposition.

       The majority reasons that because the jury found the stop to be reasonable as

an investigatory stop requiring only reasonable suspicion, there could not have

been be an unlawful arrest. The majority cites no precedent for this novel

proposition, because none exists. Indeed, the opposite is generally true: “Whether


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we deem a particular detention a Terry stop or an arrest is of great importance

because the decision we make will frequently determine whether the police

conduct was lawful or not.” Washington v. Lambert, 98 F.3d 1181, 1185-86 (9th

Cir. 1996). Here, the jury determined only that the seizure was reasonable as an

investigatory stop. In so concluding, it did not perforce determine that the seizure

never became an arrest or that any arrest was lawful, because “[t]he reasonable

suspicion standard ‘is a less demanding standard than probable cause,’ and merely

requires ‘a minimal level of objective justification.’” Gallegos v. City of Los

Angeles, 308 F.3d 987, 990 (9th Cir. 2002) (quoting Illinois v. Wardlow, 528 U.S.

119, 123 (2000)). The majority’s reasoning improperly stretches the verdict of a

jury that was not properly instructed on the law, because the district court refused

to do so. A jury instruction that explicitly framed the distinction between an

investigatory stop requiring reasonable suspicion and an arrest requiring probable

cause would have primed the jury to consider these two theories of liability as

separate legal inquiries requiring different showings by the parties. Had the jury

been called upon to make this distinction, or even been told that such a distinction

exists, its reasonableness analysis could well have been different.

      The question here is not whether the seizure could somehow be both a

lawful Terry stop and an unlawful arrest; the question is whether the seizure was a


                                          2
Terry stop or an arrest, and whether it was supported by the level of justification

appropriate to the type of seizure. This is a question that is properly answered by

the fact-finder, which “must consider the totality of the circumstances.” Allen v.

City of Portland, 73 F.3d 232, 235 (9th Cir. 1995) (quoting Terry v. Ohio, 392 U.S.

1, 27 (1968)). Because “the factual matters underlying the judgment of

reasonableness generally mean that probable cause is a question for the jury,” the

district court’s refusal to allow the jury to consider Anderson’s unlawful arrest

claim would have been appropriate “only if no reasonable jury could find that the

officers did or did not have probable cause to arrest.” McKenzie v. Lamb, 738 F.2d

1005, 1008 (9th Cir. 1984). But at trial, the parties disagreed about the specificity

and credibility of the information giving rise to the stop of Anderson’s car, how

expediently the officers confirmed the absence of any armed suspect, how

dangerous the situation was, whether Anderson cooperated, and how much and

what level of force was used. It is thus beyond dispute that Anderson was entitled

to the jury’s consideration of her unlawful arrest claim, and the district court’s

error was clearly not harmless. I therefore dissent from the majority’s holding to

the contrary.




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