Pedro Miramontes v. Officer Klevos , 517 F. App'x 574 ( 2013 )


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  •                                                                               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    NOT FOR PUBLICATION                                APR 24 2013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.
    3
    

Document Info

Docket Number: 11-56641

Citation Numbers: 517 F. App'x 574

Judges: Noonan, O'Scannlain, Smith

Filed Date: 4/24/2013

Precedential Status: Non-Precedential

Modified Date: 8/6/2023