                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


TRACY WATSON; RENEE STALKER;               No. 13-15019
PAM STALKER, as Guardian Ad
Litem for O.S.; S.W.; and R.W.;               D.C. No.
minors,                                    5:06-cv-04029-
                Plaintiffs-Appellants,         RMW

                  v.
                                             OPINION
CITY OF SAN JOSE, San Jose Police
Department; WILLIAM HOYT; CRAIG
BLANK,
             Defendants-Appellees.


     Appeal from the United States District Court
         for the Northern District of California
   Ronald M. Whyte, Senior District Judge, Presiding

                 Argued and Submitted
      February 13, 2015—San Francisco California

                Filed September 8, 2015

  Before: M. Margaret McKeown, William A. Fletcher,
         and Richard R. Clifton, Circuit Judges.

                Opinion by Judge Clifton
2                WATSON V. CITY OF SAN JOSE

                           SUMMARY*


                            Civil Rights

    The panel affirmed the district court’s decision to grant a
new jury trial on compensatory and punitive damages in an
action brought pursuant to 42 U.S.C. § 1983 against two San
Jose police officers after the officers took plaintiffs’ minor
children into protective custody without a warrant or court
order.

     The panel held that because the jury instructions in the
first trial may have permitted the jury to improperly award
damages for deprivations for which defendants were not
responsible, the district court did not err by concluding that
a new trial was warranted. The panel agreed with the district
court that the $3 million in damages awarded by the first jury
indicated that the jury improperly awarded damages for the
fact of separation of the children from their parents after a
juvenile court entered a removal order. The panel held that
the juvenile court order meant that the separation of the
family was inevitable and could not be attributed to the police
officers, and plaintiffs did not refute that proposition.
Therefore, even if the jury concluded that the separation prior
to the court order was not justified, the amount awarded by
the first jury did not reasonably reflect the actual injury
suffered as a result of a separation of five or six days, given
that the separation for the 17 months that followed was lawful
and would have occurred anyway.


  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
               WATSON V. CITY OF SAN JOSE                     3

                         COUNSEL

Peter Johnson (argued), Law Offices of Johnson & Johnson,
Walnut Creek, California, for Plaintiffs-Appellants.

Clifford S. Greenberg (argued), Senior Deputy City Attorney,
Nora Frimann, Assistant City Attorney, and Richard Doyle,
City Attorney, San Jose City Attorney’s Office, San Jose,
California, for Defendants-Appellees.

Donnie R. Cox, Oceanside, California, for Amicus Curiae
Pacific Justice Institute.


                          OPINION

CLIFTON, Circuit Judge:

    Tracy Watson, Renee Stalker, and their three minor
children appeal the district court’s decision to grant a new
jury trial on compensatory and punitive damages arising from
their claims against San Jose police officers William Hoyt
and Craig Blank. The officers took the children into
protective custody without a warrant or court order, violating
the constitutional rights of the family members. After the
jury in the first trial awarded over $3 million in damages, the
district court granted a new trial with respect to damages
based on its inference that the jury may have impermissibly
awarded damages for injuries that would have been suffered
absent the constitutional violation. Plaintiffs argue that the
district court abused its discretion by granting a new trial and
that the initial award of damages should be reinstated. We
conclude that the district court did not abuse its discretion in
4                  WATSON V. CITY OF SAN JOSE

ordering the new trial. Accordingly, we affirm the judgment
entered by the district court following the second trial.1

I. Background2

     Plaintiffs Tracy Watson and Renee Stalker were married
and had three children, who will be identified by their first
initials: O (an eight-year-old girl), S (a three-year-old boy),
and R (a one-year-old boy). The children are also plaintiffs
in this action, through their guardian ad litem Pam Stalker.

    On May 26, 2005, a teacher at O’s school contacted the
Santa Clara County Department of Family and Children’s
Services (DFCS), alleging that O exhibited conduct raising
suspicion that she suffered from sexual abuse. DFCS
assigned a social worker to the case, but the matter was not
designated as urgent and the agency did not otherwise
indicate that immediate removal of the children was
warranted. When the first social worker went on vacation,
the case was assigned to a second social worker.
Approximately one month passed without either social
worker meeting with the parents or visiting the family’s


    1
   As described below, the jury in the first trial found that the City of San
Jose was not liable for the injuries suffered by Plaintiffs but that the two
police officers were each individually liable. The district court granted a
new trial but only as to the amount of damages, not as to the fact of
liability for the violation of constitutional rights by Hoyt and Blank. The
second trial proceeded from that point. Neither Plaintiffs nor Defendants
challenge the liability verdicts.
        2
     Because the case was tried before a jury, we state the facts and
interpret the evidence in the light most favorable to the party that was
successful at trial, in this case, the Plaintiffs. See Bains LLC v. Arco
Products Co., 405 F.3d 764, 766 (9th Cir. 2005).
                  WATSON V. CITY OF SAN JOSE                            5

home, despite several attempts to arrange a meeting. On June
27, the second social worker faxed a report of the allegations
of sexual abuse and the failed attempts to connect with the
parents to the San Jose Police Department.

    On June 29, the Police Department assigned the case to
Detective Hoyt. Hoyt’s supervisor was Sergeant Blank, who
briefly met with the social worker then assigned to O’s case.
That same day, Blank, Hoyt, and approximately five
uniformed officers went to the family’s house.3 O was not at
home, so Blank called Watson, leading to a disagreement
between them over where the officers would interview O.
Watson did not bring O to the house. In response, the officers
removed S and R from the home, though they did not have a
warrant authorizing them to do so.4

    The next day, on June 30, O and her mother arrived at the
police station, and the police officers interviewed O.
Although O denied being abused by her father or anyone else,
the police took custody of her as well. She was taken to a
children’s shelter.

    The following day, on July 1, DFCS filed petitions with
the juvenile court pursuant to California Welfare and
Institutions Code § 300, which allows that court to declare
that a child is a dependent of the court and to order removal


     3
    The jury later concluded that Hoyt and Blank failed to conduct a
reasonable investigation into the allegations of sexual abuse before
deciding to visit the home. That verdict is not challenged on appeal.
 4
   The jury concluded that the officers did not have exigent circumstances
to remove the boys from the home, a conclusion that has not been
challenged on appeal.
6                 WATSON V. CITY OF SAN JOSE

of the child from the custody of the parents if the child has
suffered or has a substantial risk of suffering abuse.
Defendants contend that the allegations contained in the
petitions were the same allegations presented to the officers
by DFCS.

    Four days later, on July 5,5 the juvenile court found that
the “continuance of the children in the home of their parents
is contrary to their welfare.” Based on that order, the parents
were deprived of custody and the children were held by the
state beginning July 5, 2005 until they were returned to their
parents 17 months later, in November of 2006.6 Plaintiffs do
not in this appeal dispute that the children were legitimately
held by the state from July 5, 2005.

    Plaintiffs filed a civil lawsuit in federal court under
42 U.S.C. § 1983, claiming injuries from the warrantless
seizure of the children by the police officers. The case was
tried by a jury in 2011. At that point, the only defendants
remaining in the action were Hoyt, Blank, and the City of San
Jose.7 The jury found that Hoyt and Blank violated Plaintiffs’


    5
    July 5, 2005 was a Tuesday. Because of the July 4 holiday, it was the
first business day following the filing of the petitions with the juvenile
court on Friday, July 1.
        6
    After conducting additional evidentiary and custody hearings, the
juvenile court determined that O had been sexually abused, and that S and
R were in danger of abuse. The California Court of Appeal affirmed the
juvenile court’s orders.
    7
   Many additional defendants were originally named in that action. By
the time the case went to trial, the other defendants had either obtained
judgments in their favor or had been dismissed following settlements of
the claims against them.
               WATSON V. CITY OF SAN JOSE                     7

constitutional rights but that the City was not liable for any
violation. The constitutional rights in question were the right
against unreasonable search and seizure under the Fourth
Amendment and the right to due process under the Fourteenth
Amendment.

    The jury awarded a total of $1,250,000 in compensatory
damages to the family after the first trial: O was awarded
$400,000, S and R were each awarded $250,000, and Watson
and Stalker were each awarded $175,000. The jury also
collectively awarded Plaintiffs punitive damages in the
amount of $1,500,000 from Blank and $500,000 from Hoyt.
The total sum of damages awarded amounted to $3,250,000.

    Defendants filed a motion for a new trial. The district
court granted Defendants’ motion. It reasoned that its jury
instructions on damages in the first trial were not adequate,
that “evidence and argument were allowed which resulted in
inadequate guidance to the jury,” and that the jury
“apparently either misunderstood the instructions that were
given or chose to ignore them.”

     A second trial was conducted in 2012. The issue of
whether or not Defendants had violated Plaintiffs’
constitutional rights had already been resolved in the first
trial, so the second trial was limited to evidence regarding the
damages suffered by the family as a result of the violation.
Specifically, the jury in the second trial determined the issues
of the amount of compensatory damages appropriate to
remedy the violation, whether or not Defendants’ conduct
justified awarding punitive damages, and the amount of any
punitive damages. Ultimately, the second jury awarded a
total of $210,002 of compensatory damages to Plaintiffs: O
and R were each awarded $1 in nominal damages, S was
8              WATSON V. CITY OF SAN JOSE

awarded $10,000, and Watson and Stalker were each awarded
$100,000. The jury in the second trial concluded that Hoyt
and Blank were not liable for punitive damages.

II. Discussion

    A. Compensatory Damages

     Plaintiffs’ main contention on appeal is that the district
court erred by granting a new trial. We review the
district court’s grant of a new trial for abuse of discretion
and will affirm if “any of its grounds for granting a new
trial are reasonable.” Experience Hendrix L.L.C. v.
Hendrixlicensing.com Ltd, 762 F.3d 829, 845–46 (9th Cir.
2014) (quoting United States v. 4.0 Acres of Land, 175 F.3d
1133, 1139 (9th Cir. 1999)). “Normally, we reverse under the
abuse of discretion standard only when the district court
reaches a result that is illogical, implausible, or without
support in the inferences that may be drawn from the record.”
Kode v. Carlson, 596 F.3d 608, 612 (9th Cir. 2010) (per
curiam). We will affirm “a district court determination that
falls within a broad range of permissible conclusions,
provided the district court did not apply the law erroneously.”
Id.

    Prior to the first trial, the district court, by its own
description, “struggled . . . to formulate an appropriate jury
instruction” that limited the damages recoverable by Plaintiffs
to compensation for the injuries actually caused by the
officers. The children were seized by Defendants on June 29
and June 30, but the juvenile court ruled just a few days later,
on July 5, that the removal of the children from the home was
necessary for their welfare. The state’s custody of the
children thereafter was not something for which Defendants
                WATSON V. CITY OF SAN JOSE                     9

were legally responsible. In its first jury trial instructions
regarding causation and damages, the district court attempted
to describe limits on Defendants’ responsibility, but it
“overlooked” the decision of the Supreme Court in Carey v.
Piphus, 435 U.S. 247 (1978).

    In Carey, the plaintiffs were public school students who
received lengthy suspensions without a hearing for alleged
violations of school policies. 435 U.S. at 248–52. The lower
courts determined that the students’ procedural due process
rights had been violated, and this determination was not at
issue on appeal. Id. at 252. However, the Supreme Court
noted that in cases where “a deprivation is justified but
procedures are deficient, whatever distress a person feels may
be attributable to the justified deprivation rather than to
deficiencies in procedure.” Id. at 263. In such cases, the
Court held that a plaintiff must “convince the trier of fact that
he actually suffered distress because of the denial of
procedural due process itself.” Id.

    Of particular relevance here, in Carey the Supreme Court
approved the Court of Appeals’ holding that if the school
defendants could prove that the students “would have been
suspended even if a proper hearing had been held . . . then
[the students] will not be entitled to recover damages to
compensate them for injuries caused by the suspensions.” Id.
at 260 (internal citation omitted). The Court upheld the
reasoning of the Court of Appeals that the failure to provide
procedural due process could not be treated as causing the
suspensions if the students would have been suspended
anyway, so “an award of damages for injuries caused by the
suspensions would constitute a windfall, rather than
compensation, to [the students].” Id.
10             WATSON V. CITY OF SAN JOSE

    As applied to this case, the officers could be held liable
for damages suffered from their failure to obtain a warrant or
court order, but Plaintiffs were required to prove that the
injuries suffered stemmed from that failure, as distinguished
from the later separation of the family based upon the
juvenile court order. Injuries based on the separation of the
family starting from June 29 and 30 could not be presumed
because it was possible that, if the officers had applied for a
warrant or court order, they would have been permitted to
seize the children on those dates.

    The district court had initially concluded that the officers
could be liable for the separation experienced by the family
during the time between the officers’ removal of the children
without a warrant and the juvenile court’s July 5, 2005 order.
Accordingly, the court in the first trial provided the following
instruction on damages, in relevant part:

       You may award as compensatory damages,
       the amount of money that you determine will
       reasonably and fairly compensate the
       plaintiffs for any injury you find was caused
       by the unconstitutional acts of Sergeant Blank
       and Officer Hoyt on which you based your
       finding of liability. You should consider the
       mental and emotional pain and suffering
       experienced as a result of those acts. It is for
       you to determine what damages, if any, have
       been proved. However, the officers did not
       file the dependency petition with the Juvenile
       Dependency Court. It was filed by the Santa
       Clara County Department of Family and
       Children’s Services. Damages may not be
       awarded against the officers for the actions
               WATSON V. CITY OF SAN JOSE                  11

       taken by the Department of Family and Child
       Services in connection with the petition and
       for the actions taken by the Juvenile
       Dependency Court which made an initial
       order on July 5, 2005, based upon the petition
       that the children were to be detained at the
       children’s center pending further juvenile
       dependency court proceedings. The only
       relevance of the July 5, 2005, Order to the
       current damages proceeding before you is as
       to the light it sheds, if any, on whether
       emotional distress claimed by plaintiffs was
       suffered as a result of conduct on which you
       based your finding of liability or as a result of
       events for which the officers were not
       responsible.

    After receiving the damages verdict awarding over $3
million to Plaintiffs, the district court determined that the
amount of the award was excessive “beyond the realm of
reasonableness.” The court concluded that the $3 million
award represented more than the damages caused by the
failure to obtain a warrant or court order; the jury likely
awarded damages based on its sympathies toward the children
and the emotional distress arising from the separation of the
family while the state investigated and resolved the
allegations of sexual abuse. In support of its conclusion, the
court noted that R, the one-year-old boy, had been awarded
$250,000 in compensatory damages even though Plaintiffs
did not introduce any evidence of R’s distress from the
12               WATSON V. CITY OF SAN JOSE

warrantless removal.8 The district court reasoned that the
jury’s failure to follow the principles of Carey stemmed from
the court’s jury instructions and evidentiary rulings that did
not properly indicate that damages could only be awarded for
the unconstitutional procedure. It appeared to the district
court from the amount of the award that “the jury apparently
either misunderstood the instructions that were given or chose
to ignore them.”

    In light of its concerns about the appropriateness of the
damages award, the district court ordered a new trial. The
court concluded that the jury verdict that the officers had
violated Plaintiffs’ constitutional rights by removing the
children without a warrant or exigent circumstances could
stand, but that the damages portion had to be retried.
Specifically, the amount of compensatory damages had to be
redetermined, and both liability for and the amount of
punitive damages would need to be retried because the jury
might have punished the officers for distress they did not
cause.

    In the second trial, the district court modified its
instructions to more clearly reflect the causation principles
established in Carey. The court explicitly instructed the jury
that the officers violated Plaintiffs’ constitutional rights by
the specific act of failing to obtain a warrant or other court

  8
    Although Plaintiffs on appeal argue that damages could be inferred
based upon the age and vulnerability of the victims, damages must be
supported by evidence, not merely inferences based upon characteristics
of the victims. See Mendez v. Cnty. of San Bernardino, 540 F.3d 1109,
1118–19 (9th Cir. 2008) (holding that emotional damages cannot “be
inferred entirely from circumstances, without any supporting testimony
from witnesses”), overruled on other grounds by Arizona v. ASARCO
LLC, 773 F.3d 1050 (9th Cir. 2014) (en banc).
                  WATSON V. CITY OF SAN JOSE                           13

order before taking the children.9 The court also explained
the significance of the juvenile court order, stating that: “In
light of the Juvenile Court order the Officers cannot be held
responsible for any emotional distress caused by the
separation of the children from their parents and the
children’s detention in protective custody.” In addition, the
district court instructed the jury in the second trial that it

  9
    The relevant portions of the damages instruction from the second trial
are as follows:

         You may award as compensatory damages the amount
         of money that you determine will reasonably and fairly
         compensate plaintiffs for any emotional distress or
         injury that you find was caused by the violation of
         plaintiff’s [sic] Constitutional rights by Sergeant Blank
         and Officer Hoyt, specifically taking of the plaintiff
         children into custody without either a warrant
         authorizing them to do so or the existence of exigent,
         emergency, circumstances. You should consider the
         mental and emotional pain and suffering experienced
         by each of these plaintiffs as a result of the
         Constitutional violations. However, your damages
         shouldn’t include any damages for emotional distress
         resulting from the separation of the children from their
         parents and the children’s detention in protective
         custody. The Santa Clara County Department of Family
         and Child Services filed a petition with the Juvenile
         Court and the Juvenile Court ordered that the children
         were to remain in protective custody for their welfare
         pending further order of the Juvenile Court. In light of
         the Juvenile Court order the Officers cannot be held
         responsible for any emotional distress caused by the
         separation of the children from their parents and the
         children's detention in protective custody. However, the
         Juvenile Court order does not validate or
         retrospectively approve the constitutional violation
         including the manner in which the children were taken
         into protective custody.
14             WATSON V. CITY OF SAN JOSE

could not speculate about events occurring after the juvenile
court order entered on July 5, 2005 because those events were
not relevant to the damages proceedings. After hearing the
modified instructions, the jury in the second trial awarded the
much smaller total of $210,002 in compensatory damages and
no punitive damages.

    The district court did not abuse its discretion by
determining that the first set of jury instructions did not
adequately convey the causation principles in Carey. As
noted above, the Supreme Court held in Carey that
compensatory damages may not be presumed from the
violation of procedural due process. 435 U.S. at 263–64. An
injury could result from either the violation of procedural due
process itself, which is compensable, or from the underlying
substantive loss, such as the school suspension in Carey,
which would not be compensable if the loss was justified. Id.
at 263. It was Plaintiffs’ burden to “convince the trier of fact
that [they] actually suffered distress because of the denial of
procedural due process itself.” Id.

    In this case, we agree with the district court that the
amounts of the damages awarded by the first jury indicated
that the jury improperly awarded damages for the fact of
separation of the children from their parents. The juvenile
court entered its order stating that the removal of the children
was necessary for their welfare on July 5, 2005, less than a
week after the children were removed by Defendants. That
order meant that the separation of the family was inevitable
and could not be attributed to Defendants, and Plaintiffs did
not refute that proposition. As a result, the emotional distress
arising from the separation would have occurred regardless of
the officers’ conduct. Even if the jury concluded that the
separation prior to July 5 was not justified, the amount
               WATSON V. CITY OF SAN JOSE                    15

awarded by the first jury did not reasonably reflect the actual
injury suffered as a result of a separation of five or six days,
given that the separation for the 17 months that followed was
lawful and would have occurred anyway.

     Accordingly, the district court did not err by concluding
that a new trial was warranted. The jury instructions in the
first trial may have permitted the jury to improperly award
damages for deprivations for which Defendants were not
responsible.

    We are not persuaded by Plaintiffs’ arguments that Carey
does not apply to the facts of this case. They argue that
Carey was focused on claimed violations of procedural due
process, while Fourth Amendment and substantive due
process Fourteenth Amendment violations are claimed here.
Carey primarily speaks to the concept of causation, however,
and that principle applies to all of Plaintiffs’ claims.
Although Carey examined procedural due process claims in
the context of school suspensions, both our court and other
circuits have applied its causation analysis to other types of
constitutional tort actions. See e.g., Coral Const. Co. v. King
Cnty., 941 F.2d 910, 926 (9th Cir. 1991) (discussing Carey in
the context of an equal protection claim); see also Gomes v.
Wood, 451 F.3d 1122, 1132 (10th Cir. 2006) (holding that,
under Carey, a family could only recover damages for the
denial of procedural due process itself, but not for the
separation of parents from their child because the family did
not contest state judge’s finding that removal was justified);
Hector v. Watt, 235 F.3d 154, 157 (3d Cir. 2001) (analyzing
Fourth Amendment claim under Carey). We see no
principled reason why Carey would not apply here.
16                WATSON V. CITY OF SAN JOSE

    We are also not persuaded by Plaintiffs’ argument that
any error in the instructions given to the first jury was
harmless. They assert that the damages awarded by the first
jury were based entirely on what they describe as the
egregious manner of the seizure of the children by
Defendants and not from the separation of the family. The
district court thought otherwise, and we agree that Plaintiffs’
characterization seems unlikely. We afford deference to the
district court’s decision to grant a new trial, and the district
court reasonably concluded that a new trial was appropriate
here.10 Because the district court’s conclusions were not
“illogical, implausible, or without support in the inferences
that may be drawn from the record,” Kode, 596 F.3d at 612,
we affirm the decision to grant a new trial on compensatory
damages.

      B. Punitive Damages

     We also affirm the district court’s order granting a new
trial as to punitive damages. The court did not abuse its
discretion by ordering a new trial with respect to liability
because the punitive damages awards could have resulted
from passion and prejudice of the jury connected to its
misunderstanding of the injuries for which Defendants could
properly be held responsible. See Watec Co. v. Liu, 403 F.3d
645, 655 (9th Cir. 2005) (district court may vacate a judgment
and order a new trial if excessive damages could have



 10
    We reject Plaintiffs’ argument that the district court failed to provide
notice or a hearing regarding a new trial on compensatory damages
because the district court provided sufficient notice and opportunity to be
heard regarding the application of Carey to all of Plaintiffs’ damages
awards in this case.
                   WATSON V. CITY OF SAN JOSE                             17

resulted from passion and prejudice).11 As discussed above,
the court permissibly concluded that the jury awarded
compensatory damages for emotional distress from the
separation that was not caused by the police officers; the
court could likewise infer that the jury improperly punished
the officers for that same separation. Because one of the
factors used to examine the excessiveness of a punitive
damages award is the amount of compensatory damages
awarded, State Farm Mutual Automobile Insurance Company
v. Campbell, 538 U.S. 408, 425 (2003), the district court did
not abuse its discretion by concluding that a flawed
compensatory damages award justified a retrial for punitive
damages. Moreover, we find no error in the district court’s
analysis that the officers’ conduct, while reckless, did not rise
to the level of reprehensibility that would justify the amount
of punitive damages awarded in the first trial.12 See Mendez,
540 F.3d at 1120–21.

III.     Conclusion

   For the reasons stated above, we conclude that the district
court did not abuse its discretion by granting a new trial. We


  11
     As stated in Watec, a district court has the discretion to vacate the
judgment and order a new trial because of excessive damages even if there
is no evidence that passion and prejudice affected the liability finding.
403 F.3d at 655. Although “remittitur is an appropriate method of
reducing an excessive verdict,” the district court was not required to use
remittitur as opposed to granting a new trial. Id.
 12
    We reject Plaintiffs’ argument that they did not have sufficient notice
and opportunity to be heard regarding the grant of a new trial as to liability
for punitive damages. The issues of liability and excessiveness were
raised in Defendants’ motion for a new trial, and Plaintiffs had ample
opportunity to argue that a new trial was not warranted.
18             WATSON V. CITY OF SAN JOSE

affirm the judgment entered by the district court in favor of
Plaintiffs awarding them a total of $210,002 in damages.

     AFFIRMED.
