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                             NOT FOR PUBLICATION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


                              FOR THE NINTH CIRCUIT


ERIC D. WHITE,                                      No.    14-55858

               Plaintiff-Appellant,                 D.C. No.
                                                    2:13-cv-03401-JFW-SS
 v.

LEROY BACA; et al.,                                 MEMORANDUM*

               Defendants-Appellees.


                     Appeal from the United States District Court
                        for the Central District of California
                      John F. Walter, District Judge, Presiding

                        Argued and Submitted January 9, 2017
                                Pasadena, California

Before: KOZINSKI and WATFORD, Circuit Judges, and BENNETT,** District
Judge.

       1.     We review a claim that a jury instruction is an incorrect statement of

the law de novo, reversing only where there was a prejudicial error. See Chess v.

Dovey, 790 F.3d 961, 970 (9th Cir. 2015) (citing Clem v. Lomeli, 566 F.3d 1177,


       *
             This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
       **
               The Honorable Mark W. Bennett, United States District Judge for the Northern
District of Iowa, sitting by designation.
1180-82 (9th Cir. 2009)). The jury instructions erroneously stated that the jury

needed to find the defendants acted maliciously and sadistically for the purpose of

causing harm. See Kingsley v. Hendrickson, 135 S. Ct. 2466, 2472-73 (2015)

(holding that the factfinder need only decide whether the force the officer used

against the pretrial detainee was objectively unreasonable). Because the jury

instructions included a particular state of mind requirement, they failed to properly

state the law. Id. at 2476.


      2.     The failure to properly instruct the jury was not harmless. See Chess,

790 F.3d at 977. White is entitled to a new trial because the defendants have failed

to identify any evidence to support a harmless error finding, and it is unlikely that

adding an extra element to White’s burden of proof would be harmless. See Clem,

566 F.3d at 1182-83. Moreover, given the evidence in the record, it cannot be said

that it is more likely than not that the jury would have reached the same verdict had

it been properly instructed. Id. Although it is plausible that the jury determined

the defendants acted in a reasonable manner, it is also plausible that the jury

concluded the defendants acted in an unreasonable manner, but they did not act

maliciously and sadistically for the purpose of causing harm. Id. at 1183

(observing that a determination as to the jury’s understanding of an undefined term

could not be made and, consequently, the verdict might have been different absent

                                           2
the erroneous instruction); cf. Kingsley v. Hendrickson, 801 F.3d 828, 831 (7th Cir.

2015) (holding that instruction error was not harmless because the evidence

supported the theory offered by the pretrial detainee, and the jury was told that, in

addition to finding the officers acted in an unreasonable manner, it needed to find

the officers had a proscribed intent), on remand from 135 S. Ct. 2466 (2015).

Lastly, the jury verdict form is of no moment because it does not separate the

elements that the jury had to find in order to establish liability; the first question,

which is the only question the jury answered, subsumes all of the excessive force

elements, including the erroneous requirement that White establish the subjective

intent of the defendants. See Clem, 566 F.3d at 1183.

       REVERSED AND REMANDED.




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