                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           JUN 27 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JILL LARSON; ROBBIN LARSON,                      No. 16-16259

              Plaintiffs-Appellees,              D.C. No.
                                                 4:14-cv-01592-DCB
 v.

MARK NAPIER, Pima County Sheriff,                MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                     David C. Bury, District Judge, Presiding

                        Argued and Submitted June 8, 2017
                               Pasadena, California

Before: BEA and HURWITZ, Circuit Judges, and KOBAYASHI,** District Judge.


      Jill and Robbin Larson (“the Larsons”) were asleep at home on the night of

May 23, 2013, when deputies from the Pima County Sheriff’s Department

surrounded their house and ordered them outside. The deputies were responding

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **      The Honorable Leslie E. Kobayashi, United States District Judge for
the District of Hawaii, sitting by designation.
to a 911 call from William Eugene Warfe, Jr., who had reported an altercation that

may have involved a gun. Upon exiting, the Larsons were handcuffed and

searched, and the deputies conducted a warrantless search of their home. In this 42

U.S.C. § 1983 suit against Mark Napier, Pima County Sheriff (“the Sheriff”),

arising out of the May 23 incident, the jury found in favor of the Larsons and

awarded damages.1

      On appeal, the Sheriff does not contest that the deputies violated the

Larsons’ constitutional rights. The Sheriff challenges the district court’s:

(1) denial of his renewed motion for judgment as a matter of law; (2) denial of

additional language to a Ninth Circuit jury instruction on municipal liability under

Monell v. Department of Social Services of New York, 436 U.S. 658 (1978); and

(3) admission of evidence related to Warfe’s previous 911 calls. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

      1.     The Sheriff asserts that the district court should have granted his

renewed motion for judgment as a matter of law because the Larsons did not show

that the Sheriff’s policy was unconstitutional on its face and the Larsons waived


      1
        It is well-established that a suit against a government employee in his or
her official capacity is a suit against the government entity itself. See, e.g.,
Kentucky v. Graham, 473 U.S. 159, 166 (1985) (“As long as the government entity
receives notice and an opportunity to respond, an official-capacity suit is, in all
respects other than name, to be treated as a suit against the entity.”).
                                           2
any argument on deliberate indifference. This Court reviews a denial of a motion

for judgment as a matter of law de novo, determining “only if the evidence,

construed in the light most favorable to the nonmoving party, permits only one

reasonable conclusion, and that conclusion is contrary to the jury’s verdict.”

Castro v. Cty. of L.A., 833 F.3d 1060, 1066 (9th Cir. 2016) (en banc) (internal

quotation marks omitted). Under § 1983, a municipality is liable for the tortious

acts of its employees or agents only “when execution of a government’s policy or

custom, whether made by its lawmakers or by those whose edicts or acts may fairly

be said to represent official policy, inflicts the injury.” Monell, 436 U.S. at 694.

“Official municipal policy includes the decisions of a government’s lawmakers, the

acts of its policymaking officials, and practices so persistent and widespread as to

practically have the force of law.” Connick v. Thompson, 563 U.S. 51, 61 (2011).

      Although the Sheriff does not have a written policy for either responding to

reports of domestic violence or call out and containment – the procedure employed

at the Larsons’ home – there was ample evidence at trial of “practices so persistent

and widespread as to practically have the force of law.” See id. This evidence

included: an admission by the Sheriff that the deputies complied with the

department’s policy; Bureau Chief Byron Gwaltney’s testimony that, in a similar




                                           3
situation, he would expect deputies to do the same thing;2 Gwaltney’s testimony

that, in responding to Warfe’s call about the Larsons, the deputies used tactics

“taught and accepted as the department approach”; various deputies’ testimony that

they acted consistent with the standard procedures of the department; and the fact

that the deputies followed the same procedure at the house next door shortly after

the warrantless search of the Larsons’ home.

      Although the Sheriff argues that a general call out and containment

procedure in and of itself is not unconstitutional, the record reflects that the district

court based its ruling on the specific custom or practice of the Pima County

Sheriff’s Department – namely, seizing individuals and searching their homes

before establishing a factual basis for doing so.

      2.     The Sheriff claims that the district court incorrectly denied proposed

language for the jury instruction on Monell liability. We “review a district court’s

formulation of civil jury instructions for an abuse of discretion, but we consider de

novo whether the challenged instruction correctly states the law.” Wilkerson v.

Wheeler, 772 F.3d 834, 838 (9th Cir. 2014). The instruction given by the district

court, the Ninth Circuit model jury instruction, accurately states the law and the



      2
       Gwaltney is a member of the senior command and has at least partial
responsibility for the department’s policies and procedures.
                                            4
Sheriff’s proposed addition to the instruction was unsupported by case law.

Accordingly, the district court did not err.

      3.     Finally, the Sheriff argues that the district court erred in admitting

records of Warfe’s previous 911 calls because, when responding to emergency

calls, deputies do not have a constitutional obligation to investigate the caller. This

Court reviews evidentiary rulings for abuse of discretion. McEuin v. Crown Equip.

Corp., 328 F.3d 1028, 1032 (9th Cir. 2003). At trial, the Larsons established that,

inter alia: there was a database about a 911 caller’s previous emergency calls; the

general practice was for a deputy to check the database on the way to a potential

crime scene; at least two sergeants traveled together to the Larsons’ home; and

Warfe’s record included an alert that dispatch was supposed to pass on to

responding deputies. Thus, the Larsons did not argue that the deputies had a

constitutional obligation to search the database, but only that it was a general

policy of the department. This information is relevant, see Fed. R. Evid. 402, and

the district court did not abuse its discretion in denying exclusion under Fed. R.

Evid. 403.

      AFFIRMED.




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