                                                                              FILED
                           NOT FOR PUBLICATION                                APR 24 2013

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



                            FOR THE NINTH CIRCUIT


PEDRO MIRAMONTES,                                No. 11-56641

              Plaintiff - Appellant,             D.C. No. 8:08-cv-00579-ABC-
                                                 RNB
  v.

OFFICER KLEVOS; OFFICER                          MEMORANDUM*
BERGER; ANAHEIM POLICE
DEPARTMENT; SGT. FREISEN,

              Defendants - Appellees.,

_________________________,

SGT. PREISER,

              Defendant.


                   Appeal from the United States District Court
                      for the Central District of California
                   Audrey B. Collins, District Judge, Presiding

                       Argued and Submitted April 17, 2013
                            San Francisco, California

Before: NOONAN, O’SCANNLAIN, and N.R. SMITH, Circuit Judges.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Pedro Miramontes claims the district court abused its discretion by not

instructing the jury to consider the potential availability of other methods of

subduing him.

      As Instruction 9.22 explains, however, “it is not error for a trial court to

decline to instruct explicitly on the availability of ‘alternative courses of action’” if

the whole of the jury instruction fairly and accurately covers the legal issues

presented. See Brewer v. City of Napa, 210 F.3d 1093, 1097 (9th Cir. 2000). That

was the case here. The court instructed the jury to “consider all of the

circumstances known to them on the scene,” in assessing what was “objectively

reasonable.” This “general reasonableness/‘totality of the circumstances’

instruction[]” is appropriate “in an excessive force case, despite the plaintiff’s

request for more detailed instructions addressing the specific factors to be

considered in the reasonableness calculus.” Id. at 1097; see also Fikes v.

Cleghorn, 47 F.3d 1011, 1013–14 (9th Cir. 1995).

      Nor does the court’s decision to include five specific considerations adapted

from Graham v. Connor, 490 U.S. 386, 396–97 (1989) render the instruction

infirm. Miramontes’s argument that the jury likely limited itself to those factors

founders on the principle that “juries are presumed to follow the court’s

instructions.” Brown v. Ornoski, 503 F.3d 1006, 1018 (9th Cir. 2007). Not only


                                            2
did the instruction reference all the circumstances, but the list of the five factors

was prefaced with the word “including.”

      AFFIRMED.




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