                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            DEC 12 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


DORIS RAY KNOX; et al.,                          No.   16-16691

              Plaintiffs-Appellants,             D.C. No. 1:14-cv-00799-EPG

 v.
                                                 MEMORANDUM*
CITY OF FRESNO, a municipal
corporation; et al.,

              Defendants-Appellees.


                    Appeal from the United States District Court
                        for the Eastern District of California
                   Erica P. Grosjean, Magistrate Judge, Presiding

                          Submitted December 8, 2017**
                            San Francisco, California

Before: GRABER and N.R. SMITH, Circuit Judges, and SIMON,*** District
Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable Michael H. Simon, United States District Judge for the
District of Oregon, sitting by designation.
      We affirm the district court’s denial of Plaintiffs’ request to amend the jury

instructions. Federal Rule of Civil Procedure 51(a)(1) provides that, “[a]t the close

of the evidence or at any earlier reasonable time that the court orders, a party may

file and furnish to every other party written requests for the jury instructions it

wants the court to give.” Rule 51(a)(2) then provides two exceptions: “[a]fter the

close of the evidence, a party may: (A) file requests for instructions on issues that

could not reasonably have been anticipated by an earlier time that the court set for

requests; and (B) with the court’s permission, file untimely requests for

instructions on any issue.”

      Here, the district court provided an early opportunity under Rule 51(a)(1) for

the parties to submit proposed jury instructions, and Plaintiffs submitted proposed

jury instructions at that time. Then, just prior to closing arguments, Plaintiffs

submitted a request to amend a jury instruction that they previously had proposed.

However, neither of the two exceptions in Rule 51(a)(2) applies to Plaintiffs’

request. Plaintiffs were well aware of the issues regarding the allegedly defective

jury instruction, and the district court did not give Plaintiffs permission to file an

untimely request for instructions. Thus, we review for plain error. See C.B. v. City

of Sonora, 769 F.3d 1005, 1018 (9th Cir. 2014) (en banc); Fed. R. Civ. P. 51(d).




                                            2
      The challenged jury instruction survives plain error review. “[W]hen

reviewing civil jury instructions for plain error, we must consider, as we do in the

criminal context, whether (1) there was an error; (2) the error was obvious; and (3)

the error affected substantial rights.” C.B., 769 F.3d at 1018. The district court did

not commit plain error because there was no error; the jury instruction does not

misstate the law.1 Plaintiffs brought an excessive force claim under 42 U.S.C. §

1983. The district court instructed the jury that, in determining whether the use of

force was reasonable, the jury must “consider all of the circumstances known to

[the officers] on the scene.” Plaintiffs argue that this passage misstates the law,

because the jury must “consider all of the circumstances that [the officers] knew or

should have known on the scene.” (Emphasis added).

      Contrary to Plaintiffs’ argument, the Supreme Court recently reiterated that

“[e]xcessive force claims . . . are evaluated for objective reasonableness based

upon the information the officers had when the conduct occurred.” County of Los

Angeles v. Mendez, 137 S. Ct. 1539, 1546-47 (2017) (ellipsis in original) (emphasis

added) (quoting Saucier v. Katz, 533 U.S. 194, 207 (2001)). The reasonableness of

the officer’s prior actions and decisions are not to be taken into account. See id. at



      1
        Because we conclude that the jury instruction does not misstate the law, the
result would be the same under de novo review.
                                           3
1547. (striking down the Ninth Circuit’s “provocation rule” and holding that an

excessive force claim does not arise when “an officer use[s] reasonable force after

committing a distinct Fourth Amendment violation such as an unreasonable

entry”). Rather, “an officer’s use of force must be objectively reasonable based on

his contemporaneous knowledge of the facts.” Deorle v. Rutherford, 272 F.3d

1272, 1281 (9th Cir. 2001) (emphasis added). Consequently, “[a plaintiff] cannot

‘establish a Fourth Amendment violation based merely on bad tactics that result in

a deadly confrontation that could have been avoided.’” City & County of San

Francisco v. Sheehan, 135 S. Ct. 1765, 1777 (2015) (quoting Billington v. Smith,

292 F.3d 1177, 1190 (9th Cir. 2002)). Thus, the district court did not commit plain

error.

         AFFIRMED.




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