                                                                             FILED
                            NOT FOR PUBLICATION                               NOV 13 2015

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


ELIZABETH EVON NICHOLS,                           No. 13-35987

              Plaintiff - Appellant,              D.C. No. 3:12-cv-01889-MO

 v.
                                                  MEMORANDUM*
CITY OF PORTLAND; et al.,

              Defendants - Appellees.


                   Appeal from the United States District Court
                            for the District of Oregon
                   Michael W. Mosman, District Judge, Presiding

                           Submitted November 5, 2015**
                                 Portland, Oregon

Before: KOZINSKI, BERZON, and WATFORD, Circuit Judges.

      Elizabeth Evon Nichols appeals from a jury verdict entered against her

following a trial on her claims under 42 U.S.C. § 1983. On appeal, she challenges

only the district court’s formulation of two jury instructions, one pertaining to


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
                                                                             Page 2 of 3
whether the officers’ use of force against her was reasonable and another stating

the elements of a First Amendment retaliation claim under § 1983.

      1. We need not decide whether Nichols preserved her objection to the

district court’s “least intrusive alternative” instruction. Regardless of our standard

of review, that instruction was neither misleading nor an incorrect statement of the

law. See Hunter v. Cty. of Sacramento, 652 F.3d 1225, 1232 (9th Cir. 2011). The

district court properly instructed the jury to consider whether the officers’ use of

force was objectively reasonable under the totality of the circumstances. See

Graham v. Connor, 490 U.S. 386, 396–97 (1989). Nichols argues that the “least

intrusive alternative” instruction was erroneous because it did not expressly

instruct the jury to balance the force used against the apparent need for force. The

immediately preceding instruction made clear, however, that the jury was to

consider those factors in determining whether the officers’ use of force was

reasonable.

      2. Nor did the district court err by instructing the jury that, in order to find

Sergeant McDaniel liable for First Amendment retaliation, it needed to find that his

desire to chill Nichols’s speech was a “substantial or motivating factor for [his]

action.” The court’s instruction correctly reflected our case law concerning the

causation element of a First Amendment retaliation claim brought by a private
                                                                      Page 3 of 3
plaintiff under § 1983. See Lacey v. Maricopa Cty., 693 F.3d 896, 916–17 (9th

Cir. 2012) (en banc); Skoog v. Cty. of Clackamas, 469 F.3d 1221, 1231–32 (9th

Cir. 2006).

      AFFIRMED.
