Filed: Oct. 17, 2007
Latest Update: Mar. 02, 2020
Summary: FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ELIZABETH M. ACOSTA, Plaintiff-Appellant, v. No. 05-56575 GARY HILL; JOSEPH KROUSS; ERIC STAFFORD; RAPHAEL CIMMARUSTI; D.C. No. CV-01-01973-LAB ELITE SHOW SERVICES; VLADIMIR OPINION ATABEKIAN; DONALD WILLIAMS; CITY OF SAN DIEGO, Defendants-Appellees. Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding Argued and Submitted July 13, 2007—Pasadena, Ca
Summary: FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ELIZABETH M. ACOSTA, Plaintiff-Appellant, v. No. 05-56575 GARY HILL; JOSEPH KROUSS; ERIC STAFFORD; RAPHAEL CIMMARUSTI; D.C. No. CV-01-01973-LAB ELITE SHOW SERVICES; VLADIMIR OPINION ATABEKIAN; DONALD WILLIAMS; CITY OF SAN DIEGO, Defendants-Appellees. Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding Argued and Submitted July 13, 2007—Pasadena, Cal..
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELIZABETH M. ACOSTA,
Plaintiff-Appellant,
v. No. 05-56575
GARY HILL; JOSEPH KROUSS; ERIC
STAFFORD; RAPHAEL CIMMARUSTI; D.C. No.
CV-01-01973-LAB
ELITE SHOW SERVICES; VLADIMIR
OPINION
ATABEKIAN; DONALD WILLIAMS;
CITY OF SAN DIEGO,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted
July 13, 2007—Pasadena, California
Filed October 17, 2007
Before: Alex Kozinski and Richard C. Tallman,
Circuit Judges, and Brian E. Sandoval,* District Judge.
Opinion by Judge Kozinski
*The Honorable Brian E. Sandoval, United States District Judge for the
District of Nevada, sitting by designation.
14069
14070 ACOSTA v. HILL
COUNSEL
Meir J. Westreich, Pasadena, California, for the plaintiff-
appellant.
ACOSTA v. HILL 14071
Robert J. Walters, Deputy City Attorney; Michael J. Aguirre,
City Attorney, City of San Diego, San Diego, California, for
defendants-appellees City of San Diego, Gary Hill, Joseph
Krouss and Eric Stafford.
Matthew R. Rutherford, Law Offices of Matthew R. Ruther-
ford, Lemon Grove, California, for defendants-appellees Elite
Show Services, Vladimir Atabekian and Donald Williams.
OPINION
KOZINSKI, Circuit Judge:
Bouncers physically removed Acosta from Murphy’s Club,
a bar in San Diego’s Qualcomm Stadium. Stadium security
was notified, and two security guards approached Acosta. She
refused to show the guards identification or accompany them
to the security office. San Diego police officers then inter-
vened. Officer Hill told Acosta that she had been ejected from
the stadium. After he told Acosta at least three times that she
would be arrested if she didn’t leave the stadium, Acosta
kicked a security guard and Officer Hill. Officer Hill then
placed her in a carotid restraint hold. Acosta became compli-
ant without losing consciousness, and she was handcuffed.
Soon, however, the rumbustious Acosta began kicking again,
so Officer Hill slammed her to the ground and tied her legs
together. She was then taken to the holding area by Officers
Krouss and Stafford.
Acosta filed a 42 U.S.C. § 1983 claim against the security
guards, police officers and the City of San Diego, alleging
various constitutional violations including unconstitutional
use of deadly force under the Fourth Amendment. The jury
was given an excessive force instruction based on a reason-
ableness standard—but not a separate deadly force instruc-
tion. The jury found for defendants. Acosta appeals, arguing
14072 ACOSTA v. HILL
that the jury should have been given a separate deadly force
instruction. We have jurisdiction under 28 U.S.C. § 1291.
[1] Scott v. Harris,
127 S. Ct. 1769 (2007), forecloses
Acosta’s deadly force argument. Scott held that there is no
special Fourth Amendment standard for unconstitutional
deadly force. See
id. at 1777-78. Instead, “all that matters is
whether [the police officer’s] actions were reasonable.”
Id. at
1778 (emphasis added). Here, the jury was given an excessive
force instruction and found for Officer Hill; it must therefore
have determined that the officer acted reasonably. Under
Scott, that is the end of the inquiry. The district court didn’t
err by refusing to give a separate deadly force instruction.
[2] We had previously held that “[a]n excessive force
instruction is not a substitute for a . . . deadly force instruc-
tion.” Monroe v. City of Phoenix,
248 F.3d 851, 859 (9th Cir.
2001). We reached this conclusion based on the observation
that “the Supreme Court . . . established a special rule con-
cerning deadly force.”
Id. at 860 (quoting Vera Cruz v. City
of Escondido,
139 F.3d 659, 661 (9th Cir. 1997)). Scott
explicitly contradicts that
observation. 127 S. Ct. at 1777-78.
Scott controls because it is “intervening Supreme Court
authority” that is “clearly irreconcilable with our prior circuit
authority.” Miller v. Gammie,
335 F.3d 889, 900 (9th Cir.
2003) (en banc). Monroe’s holding that an excessive force
instruction based on the Fourth Amendment’s reasonableness
standard is not a substitute for a deadly force instruction is
therefore overruled. See
Miller, 335 F.3d at 900.
Acosta’s remaining arguments are addressed in the accom-
panying memorandum disposition.
AFFIRMED.