                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           MAR 01 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


CHRIS WILLIS and MARY WILLIS,                    No.   14-16560
individually and Successors in Interest to
Stephen Willis,                                  D.C. No. 1:09-cv-01766-BAM

              Plaintiffs-Appellees,
                                                 MEMORANDUM*
 v.

CITY OF FRESNO; et al.,

              Defendants-Appellants.



CHRIS WILLIS and MARY WILLIS,                    Nos. 14-16641
individually and Successors in Interest to
Stephen Willis,
                                                 D.C. No. 1:09-cv-01766-BAM
              Plaintiffs-Appellants,

 v.

CITY OF FRESNO; et al.,

              Defendants-Appellees.


                   Appeals from the United States District Court
                      for the Eastern District of California

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                                                                           Page 2 of 7
                  Barbara McAuliffe, Magistrate Judge, Presiding

                     Argued and Submitted November 15, 2016
                             San Francisco, California

Before: MELLOY,** CLIFTON, and WATFORD, Circuit Judges.

      1. The district court did not err by denying defendants’ motion for judgment

as a matter of law. Given the evidence presented at trial, a reasonable jury could

conclude that Officer Catton used excessive force in firing the final shot or shots.

While we acknowledge that the jury heard conflicting accounts as to whether

Willis was reaching for his gun when Officer Catton fired, it was for the jury to

decide which version of events to believe. The jury could reasonably have

concluded from the evidence that Willis was not reaching for his gun and that

Officer Catton’s use of force was therefore unreasonable.1

      The district court did not err by denying Officer Catton qualified immunity.

The evidence presented at trial established that if Willis had been reaching for the

gun, deadly force was justified. Since the jury concluded that the force used was



      **
            The Honorable Michael J. Melloy, United States Circuit Judge for the
U.S. Court of Appeals for the Eighth Circuit, sitting by designation.
      1
         We agree with the district court that the jury must have concluded that the
officers’ use of force was objectively reasonable during the initial shots and main
volley of gunfire, but that Officer Catton’s decision to fire the final shot or shots
was not objectively reasonable.
                                                                           Page 3 of 7
not justified, it must have concluded that Willis was not reaching for the gun and

thus did not pose an immediate threat of harm when Officer Catton fired.

      The constitutional right to be free from the use of deadly force absent an

immediate threat of harm to officers or others was clearly established at the time

Officer Catton acted. See Tennesee v. Garner, 471 U.S. 1, 11 (1985); Wilkinson v.

Torres, 610 F.3d 546, 550 (9th Cir. 2010). All reasonable officers would have

known that using deadly force on an individual who poses no immediate threat to

the officer or others violates the Fourth Amendment.

      2. The district court did not abuse its discretion by admitting testimony from

plaintiffs’ use-of-force expert. The expert opined that Willis no longer posed a

threat when Officer Catton fired the final shot or shots, and acknowledged during

cross-examination that if Willis had been reaching for the gun, deadly force would

have been appropriate. As noted above, the jury was responsible for resolving

whether Willis was reaching for the gun at the time Officer Catton fired. Allowing

plaintiffs’ expert to respond to hypotheticals based on evidence presented at trial

was not an abuse of discretion.

      3. The district court did not abuse its discretion by declining to submit

special interrogatories to the jury. See Ruvalcaba v. City of Los Angeles, 167 F.3d

514, 521 (9th Cir. 1999). The district court, in its pre-trial order, set November 22,
                                                                              Page 4 of 7
2013, as the deadline to submit jury instructions and verdict forms. Defendants did

not raise the issue of special interrogatories until just before the close of their case-

in-chief on December 13, 2013, and they did not submit proposed interrogatories

until December 14, 2013. Given the lateness of the request and the fact that the

verdict form already required a jury determination of all factual issues essential to

the judgment, the district court did not abuse its discretion by refusing to submit

defendants’ untimely special interrogatories to the jury. See Landes Construction

Co. v. Royal Bank of Canada, 833 F.2d 1365, 1374 (9th Cir. 1987).

      4. The district court did not abuse its discretion by admitting evidence of

Willis’ alcohol intoxication. Evidence of Willis’ intoxication was relevant to the

jury’s assessment of whether to believe the officers’ testimony that Willis

disregarded their orders to drop his gun and instead aimed it at them. See Boyd v.

City & County of San Francisco, 576 F.3d 938, 944 (9th Cir. 2009).

      The district court abused its discretion by admitting evidence of Willis’

marijuana use. Defendants presented no evidence indicating that Willis had

consumed marijuana in the 72 hours before the shooting and no evidence linking

Willis’ marijuana use to his disputed behavior. The error in admitting this

evidence, however, was harmless. Because defendants presented no evidence of a

causal relationship between Willis’ marijuana use and his behavior on the night in
                                                                               Page 5 of 7
question, no reasonable probability exists that the jury relied on this evidence in

finding Willis 80% contributorily negligent. See Obrey v. Johnson, 400 F.3d 691,

699–701 (9th Cir. 2005).

       5. The district court erred by precluding plaintiffs from seeking damages for

Willis’ pre-death pain and suffering. The court, relying on California state law,

ruled that such damages were not recoverable. Cal. Civ. Proc. Code § 377.34.

Shortly after entry of judgment, this court held that § 377.34 limits recovery too

severely to be consistent with the deterrence policy underlying 42 U.S.C. § 1983,

and that plaintiffs may therefore seek damages for pre-death pain and suffering

under § 1983 when the decedent’s death was caused by the violation of federal

law. Chaudhry v. City of Los Angeles, 751 F.3d 1096, 1105 (9th Cir. 2014). We

must accordingly vacate the judgment on plaintiffs’ § 1983 claim and remand the

case to the district court so that plaintiffs may present evidence in support of their

claim for pre-death pain and suffering damages. As noted earlier, we agree with

the district court that the jury’s verdict reflects an implicit finding that the officers’

use of force was objectively reasonable throughout their encounter with Willis,

except for the final shot or shots fired by Officer Catton. Therefore, on remand,

plaintiffs will be limited to recovering only those pre-death pain and suffering

damages caused by Officer Catton’s final shot or shots.
                                                                            Page 6 of 7
       6. The district court did not commit reversible error during jury selection.

Plaintiffs contend they were forced to use peremptory strikes to correct the district

court’s erroneous denial of their for-cause challenges. We need not determine

whether the district court erred in failing to dismiss the challenged jurors for cause

because a party is not constitutionally harmed as a result of using peremptory

strikes to cure a for-cause mistake. United States v. Martinez-Salazar, 528 U.S.

304, 317 (2000). Since the allegedly biased jurors did not ultimately sit on the

jury, a new trial is not warranted. See id. at 316.

       7. The district court properly denied plaintiffs’ motion for a new trial, which

asserted that there was no factual support for the jury’s comparative negligence

finding. A reasonable jury could conclude, based on its assessment of the entire

encounter between the officers and Willis, that Willis was 80% responsible for his

injuries.

       8. With respect to the district court’s ruling on attorney’s fees, we reject

defendants’ argument that the district court erred by awarding plaintiffs fees for

work performed on the prior appeal. Plaintiffs were not required to file a motion

requesting fees at the conclusion of the prior appeal because at that point they were

not prevailing parties under 42 U.S.C. § 1988; all they had won on appeal was the

right to pursue their claims at trial. Thus, any motion for attorney’s fees at that
                                                                           Page 7 of 7
time would have been premature. See Tribble v. Gardner, 860 F.2d 321, 328 (9th

Cir. 1988). We also reject defendants’ argument that the district court erred by

considering plaintiffs’ pendent state law claims when evaluating the degree of

success plaintiffs achieved in the litigation. See Farrar v. Hobby, 506 U.S. 103,

112–13 (1992); Hensley v. Eckerhart, 461 U.S. 424, 434–37 (1983). Defendants’

remaining challenges to the district court’s fee award are likewise without merit.

      We decline to rule on plaintiffs’ contentions that the district court abused its

discretion by reducing counsel’s hourly rates and by imposing an across-the-board

35% reduction. The district court should revisit these issues following the limited

re-trial on the issue of pre-death pain and suffering damages. The court predicated

the 35% reduction at least in part on the degree of success plaintiffs achieved in the

litigation, which could change depending on the extent to which plaintiffs recover

damages for Willis’ pre-death pain and suffering.

      AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

      The parties shall bear their own costs.

      Defendants’ Motion to Strike Plaintiffs’ Supplemental Letter Brief filed

January 13, 2016, is DENIED.
