Heriberto Rodriguez; Carlos Flores; Juan Carlos Sanchez; Erick Nunez; Juan Trinidad, Plaintiffs-Appellees,
County of Los Angeles; Los Angeles County Sheriff's Department, Defendants, and Daniel Cruz; Matthew Onhemus; Clayton Stelter; Justin Bravo; Herman Delgado; Adrian Ruiz; Carlos Ortega; Francisco Alonso; Christopher Blasnek; Michel McGrattan; Kelley Washington; Alejandro Hernandez Castanon; Arthur Diaz, Jr.; Michael Frazier; Antonio Galindo; Armando Gonzalez; Matthew Nowotny; Joseph Sanford; Hector Vazquez; Ivan Delatorre; John McNicholas, Defendants-Appellants. Heriberto Rodriguez; Carlos Flores; Juan Trinidad; Juan Carlos Sanchez; Erick Nunez, Plaintiffs-Appellees,
County of Los Angeles; Daniel Cruz; Christopher Blasnek; Matthew Onhemus; Michel McGrattan; Kelley Washington; Clayton Stelter; Justin Bravo; Francisco Alonso; Alejandro Hernandez Castanon; Michael Frazier; Joseph Sanford; Hector Vazquez; Nicholas Graham; Blake Orlandos; Matthew Thomas; Javier Guzman; Andrew Lyons; Adolph Esqueda; Herman Delgado, Defendants-Appellants.
Submitted August 31, 2017 Pasadena, California
from the United States District Court for the Central
District of California Consuelo B. Marshall, Senior District
Judge, Presiding Argued and D.C. No. 2:10-cv-06342-CBM-AJW
D. Lawrence (argued) and Jin S. Choi, Lawrence Beach Allen
& Choi P.C., Glendale, California; Andrew C. Pongracz,
Seki Nishimura & Watase LLP, Los Angeles, California; for
Caitlin S. Weisberg (argued), Barrett S. Litt, and Ronald O.
Kaye, Kaye McLane Bednarski & Litt LLP, Pasadena,
California; James S. Muller, Offices of James S. Muller,
Glendale, California; for Plaintiffs-Appellees.
Before: William A. Fletcher and Sandra S. Ikuta, Circuit
Judges, and Sarah Evans Barker, [*] District Judge.
panel affirmed the district court's judgment in favor of
plaintiffs following a jury trial, award of compensatory and
punitive damages, and award of attorney's fees in a 42
U.S.C. § 1983 action brought by five prisoners who were
severely injured during the course of cell extractions at the
Los Angeles County Men's Central Jail.
panel first denied appellants' request to vacate the
final judgment on the basis that the district court lacked
jurisdiction to go to trial during the pendency of
appellants' interlocutory appeal from a prior qualified
immunity ruling. The panel held that although the district
court failed to certify pursuant to Chuman v.
Wright, 960 F.2d 104, 105 (9th Cir. 1992), that the
interlocutory appeal was frivolous, any error was harmless.
the issue of exhaustion of administrative remedies under the
Prison Litigation Reform Act, the panel held that the
district court did not clearly err in finding that a
reasonable fear of retaliation made the grievance system
effectively unavailable for appellees, and that appellants
failed to carry their burden of proof showing otherwise.
panel held that the district court did not err by denying
appellants' Fed.R.Civ.P. 50(b) motion, based on qualified
immunity, for judgment as a matter of law. The panel held
that there was abundant evidence presented to the jury that
appellants inflicted severe injuries on appellees while they
were not resisting, and even while they were unconscious. A
jury could reasonably reject appellants' argument that
they acted reasonably and instead determine that the force
was not part of a good-faith effort to maintain or restore
discipline. The panel therefore rejected appellants'
sufficiency of the evidence challenge to the jury's
finding of a constitutional violation.
panel also found unpersuasive appellants' arguments that
the law regarding their conduct was not clearly established.
Addressing the liability of the deputy appellants, the panel
held that no reasonable deputy in appellants' position
would have believed that beating a prisoner to the point of
serious injury, unconsciousness, or hospitalization solely to
cause him pain was constitutionally permissible. The panel
rejected the argument that the limits on the proper use of
tasers were still unclear as of 2008, stating that once a
jury has determined on the basis of sufficient evidence that
prison officials maliciously and sadistically used more than
de minimis force to cause harm, contemporary
standards of decency, and thus the Eighth Amendment, always
panel held that the supervisor appellants-the sergeants who
directed the extraction teams and their superiors-were not
entitled to qualified immunity. The panel held that to the
extent that these appellants stood by and observed the
extractions but knowingly refused to terminate the
deputies' unconstitutional acts, they were individually
liable. The panel determined that ample evidence-including
appellants' own testimony-supported the conclusion that
appellants directed and observed most of the extraction
teams. The panel held that although it was unclear whether
Captain Cruz directly observed all of the extractions, a jury
could reasonably find the requisite causal connection to hold
Cruz liable for his own culpable action or inaction in the
training, supervision, or control of his subordinates.
panel rejected the argument that the supervisors had immunity
under state law and therefore could not be held liable under
the Bane Act, California Civil Code § 52.1. The panel
first held that California Civil Code § 820.2 does not
shield government employees who use excessive force in
carrying out their duties and that § 820.8 was
inapplicable because appellees did not rely on vicarious
liability. The panel concluded that in excessive force cases,
including Eighth Amendment cases, § 52.1 does not
require proof of coercion beyond that inherent in the
underlying violation. Because appellees provided evidence
sufficient to support a finding that they were subjected to
excessive force in violation of the Eighth Amendment, they
necessarily provided evidence sufficient to support a finding
of a violation of their rights under the Bane Act.
panel held that the record amply supported the jury's
verdict and the district court's ruling of municipal
liability under Monell v. Dep't of Soc. Servs. of
City of New York, 436 U.S. 658, 694 (1978). The panel
held that there was substantial evidence of repeated
constitutional violations, of the Los Angeles County
Sheriff's Department awareness of those violations, and
of its failure to take any remedial action. The panel
concluded that legal precedent permitted the jury to infer
that the Sheriff's Department had adopted a custom or
practice of condoning excessive force and that this culture
of violence and impunity proximately caused the injuries
inflicted on appellees.
panel held that the record did not require a finding of
implied juror bias that allegedly arose from the professional
activities of a juror's parents and the juror's
personal friendships with other individuals having some
involvement with the prison system. The panel upheld the
award of $210, 000 in punitive damages award against the
supervisory appellants, stating that the appellees proved
egregious, even shocking, abuses of power. The panel further
noted that the punitive damages awarded to each appellee,
considered individually or together, were all far less than
appellees' compensatory damages.
appellants' claims of trial errors, the panel held that
the district court acted within its broad discretion in
declining to bifurcate the Monell claim and in
excluding, under Federal Rule of Evidence 403, evidence of
appellees' felony convictions and their gang membership.
The panel further found no error in the district court's
jury instructions and determined that the district court
reasonably denied the application to compel live testimony
for four appellees and non-party inmates.
panel affirmed the district court's attorney's fee
award of $5, 378, 174.66. The panel held that the fee limit
provisions of the Prison Litigation Reform Act do not apply
to attorney's fees incurred in litigation under
California Civil Code § 52.1. Finally, the panel found
no fault in the district court's decision to apply a 2.0
multiplier, given the financial risk assumed by
appellees' counsel, the difficulty of representing
prisoners in an excessive force action against high-ranking
jail officials who engage in aggressive opposition, and the
opportunity costs that the years-long litigation in this case
required. The panel noted that the district court had
considered the burden to California's taxpayers that the
fee award would represent, and found that the award was
justified given the factors described above and the
importance of civil rights suits in protecting the public
against abuses at the hands of large or politically powerful
FLETCHER, CIRCUIT JUDGE:
2008, corrections staff at the Los Angeles County Men's
Central Jail performed "cell extractions" in two
high-security units in the course of quelling a disturbance.
Appellees, five prisoners in the jail, were severely injured
during the extractions. They brought suit in federal district
court, alleging that appellants violated their rights under
the Eighth and Fourteenth Amendments. After a month-long
trial, a jury found nineteen Los Angeles County Sheriff's
Department ("LASD") employees and the County of Los
Angeles liable for appellees' injuries under 42 U.S.C.
§ 1983 or California Civil Code § 52.1, or both.
The jury awarded $740, 000 in compensatory damages and $210,
000 in punitive damages. The court awarded more than $5
million in attorney's fees.
this appeal follows a jury verdict in appellees' favor,
we relate the facts in the light most favorable to them.
See Castro v. Cty. of Los Angeles, 833 F.3d 1060,
1064 n.1 (9th Cir. 2016) (en banc).
August 25, 2008, there was a disturbance in Modules 3100 and
3300 of the Los Angeles County Men's Central Jail, two
high-security units in which prisoners were housed in
single-person cells. Prisoners in the units lit fires,
flooded toilets, shattered sinks, and threw shards of
porcelain. Appellees described the disturbance as a
"protest, " organized in response to repeated uses
of excessive force by jail officials. Appellants described it
as a "riot." The district court instructed the
parties to use the term "incident" in front of the
restore order, appellant Captain Daniel Cruz, unit commander,
and appellant Lieutenant Christopher Blasnek, incident
commander, planned a series of cell extractions. Under the
stated terms of the plan, prisoners would have an opportunity
to "cuff up" and leave their cells voluntarily.
Prisoners who refused to cuff up would be forcibly extracted.
Four LASD sergeants would lead four separate extraction teams
of several deputies, with each deputy on a team having an
assigned role. "Shield deputies, " covered with
protective gear and carrying a shield, would enter first to
pin the prisoner against a wall or to knock him to the
ground. "Capture deputies" would follow close
behind to restrain the prisoner. In the event that these
deputies were unable to subdue a prisoner, "taser
deputies" would administer electric shocks in "stun
mode" until the prisoner was subdued. Official LASD
policy required extraction teams to use the "lowest
possible level" of force to "overcome only that
level of resistance confronting the team." Extraction
teams were prohibited from using force to punish prisoners.
Appellees were among those who were forcibly extracted.
Carlos Flores testified that, prior to his own extraction, he
could hear cell extractions occurring in other cells.
"[P]eople were crying out in pain, telling the deputies
to stop. And I could hear the punching and kicking. And I
could hear boots stomping. I could hear the deputies
sometimes laughing." When deputies approached
Flores's cell, "they were all wearing ski masks, I
couldn't see their faces." A deputy shot into
Flores's cell with a 40 mm "block gun, " but
Flores was not hit because he was protecting himself with his
mattress. Deputies then threw one or two concussion grenades
into Flores's cell. They entered the cell, and one deputy
used his shield to push Flores down onto his back. Five or
six deputies then landed on top of Flores and the deputy.
Several deputies held Flores down while others punched and
kicked him in his face, head, and body. Deputies took turns,
alternating between hitting and tasing him. "I could
feel them stomping on my legs, trying to twist my leg."
As one deputy was hitting Flores, "he was just telling
me, 'Mother-Fucker. Mother-Fucker.' "
"[T]hey were telling me to stop resisting, and . . . I
was trying to say, 'I'm not resisting.' "
"[T]hat's . . . a thing that the deputies do at the
jail . . . . [T]hey'll beat inmates and say 'Stop
resisting, stop resisting.' But it's like they know
you're not resisting. . . . They just want to beat you
up." After one of the tasers quit working, a deputy used
the butt of the taser to hit Flores in the face and head. The
repeated blows from fists, boots, and the taser broke
Flores's nose and eye socket. "The last thing I felt
before I woke up in the hospital room . . . was the whole
right side of my face, just I felt the bone break because he
. . . kept hitting me in the same spot." "It was
the worst thing I ever felt. . . It was so painful that I
just blacked out from the pain." In the hospital
afterwards, "the doctor explained to me that my nose had
been broken pretty bad and that he had to go in there and . .
. cut off a piece of some cartilage in order to move the bone
back in place or something like that." "[H]e
explained to me . . . how my cheek bone holds my eye into
place, and . . . the fracture to my . . . cheek bone had kind
of like made my eye sunk down out of the socket. So he had to
go in there and . . . put . . . two metal plates or
something, and some screws, and . . . basically put my . . .
eye socket back together. So that way, . . . my eye is not
hanging at an odd angle out of my face."
Juan Carlos Sanchez testified that before his extraction
began a deputy appeared on his tier and stated, "You
guys are going to get your ass beat." When an extraction
team came to Sanchez's cell, a deputy shot at him with
the block gun. He was not hit because he was protecting
himself with his mattress. Deputies then threw a concussion
grenade that exploded between his legs. Deputies entered the
cell and threw Sanchez onto the floor on his stomach. A
deputy handcuffed him with his hands behind his back. That
deputy began "socking me in my face, punching me in my
face, just punching me." Sanchez was struck in the face
until he bled. Other deputies then came into the cell.
"[T]hey come in and started kicking me, stomping me out,
. . . just jumping on my legs." They broke Sanchez's
left ankle. Deputies told Sanchez to "stop fighting,
" but "I wasn't fighting." Deputies later
told him to "stop resisting, " even though he was
not resisting. Sanchez was dragged out of the cell
unconscious. Sanchez regained consciousness outside the cell,
still handcuffed and lying on his stomach. Now outside the
cell, deputies kicked Sanchez in the face and tased him
repeatedly. They pulled down his pants and "tasered me
on my butt." At the hospital afterwards, doctors put
permanent metal pins in Sanchez's broken ankle. Sanchez
was in a wheelchair for three to four months, and was not
able to walk without crutches or a walker for eight or nine
months. At the time of trial four years later, Sanchez still
walked with a limp. Sanchez had received a large
"gash" above his right eye. The gash had healed by
the time of trial, but it was "always tingling."
Sanchez's right eye was swollen shut for two weeks. At
the time of trial, vision in that eye was blurred.
Erik Nunez testified that before entering his cell deputies
shot him four or five times with large rubber or wooden
bullets from a block gun. They then threw a concussion
grenade into the cell. When they came into the cell, they
pushed Nunez to the floor. Nunez "immediately . . .
began feeling blows." Deputies kicked him with
"hard boot[s]" on his face, back, and sides.
Deputies hit Nunez with their fists and jumped on his back.
Nunez tried to cover his head to protect himself, but
deputies grabbed his arms and continued to beat him. "I
heard them saying . . . the whole time I was on the floor,
'Stop resisting' until the moment I came out of the
cell." Nunez testified that this was typical:
"[Y]ou always hear them say, 'Stop resisting, "
and [inmates] are not even resisting. . . . That's their
justification." Deputies tased Nunez repeatedly. "I
kept getting tasered, and I was hoping that I would pass out.
But . . . it was like . . . I would come right back to it
with the taser." "[A]fter the first tase, I was
already out of it, . . . and then he just kept tasing and
tasing me." "This guy, he's laughing, the guy
that's tasing me. He grabbed it, and he put it . . .
[b]etween my butt cheeks, and he's tasing me, and
he's laughing." On a scale of one to ten, Nunez
rated his pain at eleven. The tasing left marks on
Nunez's skin-"[b]lack marks, like wounds, like two
holes, like burn marks, like burned skin."
Juan Trinidad testified that he heard other cell extractions
before deputies came to his cell. "You could hear all
the pain. People are screaming and everything else."
"[Y]ou hear the same thing as usual, 'Stop
resisting, ' and they keep beating [the inmates]."
"I already figured I'm going to get hurt. I'm
going to get hurt real bad." Before entering
Trinidad's cell, deputies shot into the cell ten or more
balls filled with pepper spray. Deputies then shot into the
cell with a block gun. One of the bullets from the block gun
broke Trinidad's right hand; one hit him directly in the
chest; and one ricocheted and hit him in the shoulder.
Deputies then threw a concussion grenade into the cell.
Before deputies entered his cell, Trinidad heard a female
deputy say, "Well, get that mother fucker." When
the deputies entered the cell, Trinidad lay face down on his
mattress, trying to protect himself by "hid[ing] my face
in between the floor and the table." Deputies "ran
in and they start beating me. One jumped on my back and the
other one just started hitting me, and they start tasing
me." "[O]ne was trying to break my ankle."
Approximately five deputies were on top of Trinidad. One
deputy was twisting his already-broken right hand and tasing
him. Another deputy "was twisting my ankles."
"They told me to stop resisting . . . . I was not
[resisting] because one deputy . . . had my right hand and
he's twisting. . . . I can't resist." Trinidad
heard a deputy say, "The battery's going dead. Give
me another taser." After Trinidad was handcuffed,
deputies continued to beat and tase him. He faded in and out
of consciousness throughout the extraction. On a scale of one
to ten, Trinidad rated the pain from the taser a ten.
Trinidad's back was broken in several places. He was
transported to the hospital in a neck brace, where he was
treated for head, hand, and back injuries.
Heriberto Rodriguez testified that when deputies came to his
cell, he was sitting on his toilet holding his mattress in
front of him for protection. Deputies used a block gun to
fire four shots, hitting his ankles. They then threw a
concussion grenade into the cell. When deputies came into the
cell, they yanked the mattress away and hit Rodriguez twice
in the face. Rodriguez wears glasses. He put his hands to his
face and dropped to the floor. When Rodriguez was face down
on the cell floor, someone was hitting his head. A deputy
pulled his hand away from his face and twisted his arm.
"He was trying to snap it like a broomstick. . . . [H]e
was saying things like, 'You mother fucker. You mother
fucker.' " "I was watching my elbow bending in
an awkward position. I've never seen it bend that
way." At the time of trial, four years later,
Rodriguez's elbow would not extend to a straight and
locked position. Deputies handcuffed Rodriguez and continued
to beat him. "Someone dropped a knee or a leg or
something on my back. I was still being hit on the back of my
head." He was told to "stop fighting, " even
though he was already handcuffed and was not struggling.
Rodriguez was tased repeatedly, "in my armpits, my
fingertips, the back of my neck . . . . I was tasered my legs
[sic], and the bottom of my feet." Rodriguez
testified further, "I was laying down cuffed, and I felt
something probing my anus. And [the taser] pushed, it pushed,
and it went down, and then it pushed, and then it was just a
jolt." It went to "the part between the testicles
and the anus[.]" On a scale of 1 to 100, Rodriguez rated
his pain from the taser a 100.
policy required staff to videotape cell extractions in their
entirety and to preserve the videotapes afterwards. During
discovery in this case, appellants produced forty-one
videotapes of the cell extractions. These videotapes show
almost none of the activity that took place inside the cells.
Expert witness Steve Martin reviewed all of the videotapes
produced by appellants, looking for the "hard-impact
strikes" described by appellants in their
post-extraction reports and by appellees. "Remarkably,
" Martin testified, the videotapes showed "not a
single [hard-impact] strike[.]" "[N]ot a single one
of those hundred-plus strikes was captured on video." On
the audio of many of the videotapes, deputies can be heard
saying "stop fighting." However, none of the
videotapes that were produced in discovery shows the inmates
at the time this is being said, making it impossible to see
whether the inmates were, in fact, fighting.
evidence at trial showed that deputies took at least five
videotapes of cell extractions that were not produced in
discovery. Appellees' evidence showed that those
videotapes were taken in a manner that would likely have
shown the actual beatings and tasing of the inmates. For
example, one of the videotapes that was produced was taken
during the extraction of appellee Nunez. The videotape shows
another deputy videotaping Nunez's extraction from a
vantage point that would likely have shown him being beaten
and tased, and that would likely have shown whether he was
fighting or resisting at the time. That videotape was not
produced by appellants.
trial, appellants denied "intentionally destroy[ing],
misplac[ing], or eras[ing]" the missing videotapes. But
appellants provided no explanation for why those videotapes,
and only those videotapes, were missing.
brought suit against twenty-eight individual defendants and
the County of Los Angeles under 42 U.S.C. § 1983 and
California Civil Code § 52.1. Appellees Flores, Sanchez,
Nunez, and Trinidad contended that the cell extractions
violated their right to be free from cruel and unusual
punishment under the Eighth and Fourteenth Amendments.
Appellee Rodriguez, who at the time of the cell extraction
was a pre-trial detainee, brought suit under the Due Process
Clause of the Fourteenth Amendment. See City of Revere v.
Mass. Gen. Hosp., 463 U.S. 239, 244 (1983).
same jury instructions were used for all five appellees, and
the parties do not distinguish among them on appeal. After
the trial in this case, the Supreme Court clarified that
"the appropriate standard for a pretrial detainee's
excessive force claim [under the Fourteenth Amendment] is
solely an objective one." Kingsley v.
Hendrickson, 135 S.Ct. 2466, 2473 (2015). In contrast, a
convicted prisoner's excessive force claim under the
Eighth Amendment requires a subjective inquiry into
"whether force was applied in a good-faith effort to
maintain or restore discipline, or maliciously and
sadistically to cause harm." Hudson v.
McMillian, 503 U.S. 1, 7 (1992). The jury instructions
for appellee Rodriguez's Fourteenth Amendment claim
erroneously required him, as a pretrial detainee, to prove
both the objective unreasonableness of the appellants'
force (that "defendants used excessive and unnecessary
force under all of the circumstances") and
appellants' subjective intent (that "defendants
acted maliciously and sadistically for the purpose of causing
harm"). Because Rodriguez did not argue that this
instruction was erroneous, the argument is forfeited. See
Castro, 833 F.3d at1071-72. In any event, the error was
harmless because Rodriguez prevailed at trial despite having
to prove the additional subjective element. Cf.
Kingsley, 135 S.Ct. at 2477; Clement v. Gomez,
298 F.3d 898, 903 (9th Cir. 2002) (explaining that the Eighth
Amendment's subjective inquiry involves a
"heightened standard" that "necessarily
involves a more culpable mental state than that required for
excessive force claims arising under the Fourth
Amendment's unreasonable seizures restriction").
Interlocutory Appeal and Chuman motion
to trial, appellants moved for summary judgment based on
qualified immunity. The district court denied the motions.
The extraction team supervisors, the "taser deputies,
" and some of the "shield" and "capture
deputies" filed an interlocutory appeal from the denial,
arguing that they were entitled to qualified immunity even
assuming the facts in the light most favorable to the
appellees. We issued an order to show cause why the appeal
should not be dismissed under Johnson v. Jones, 515
U.S. 304, 307 (1995).
the interlocutory appeal was pending in our court, appellees
moved in the district court to certify the interlocutory
appeal as frivolous under Chuman v. Wright, 960 F.2d
104, 105 (9th Cir. 1992). The district court concluded that
it lacked jurisdiction to decide the Chuman motion
during the pendency of the appeal, and denied the motion on
that ground. Then, while the appeal was still pending and
over appellants' objection, the district court ordered
that the case proceed to trial on all claims against all
defendants. Appellants filed an emergency motion for a stay
in our court, which we denied. The case then went to trial.
and immediately following jury selection, appellants
contended that Juror Number 5 ("S.M.") was
impliedly biased and should be excused for cause. During voir
dire, S.M. stated that his mother was a law professor. He
stated further that he had family and personal friends who
were engaged in activities related to challenging conditions
in Los Angeles County jails or who had had negative
experiences with law enforcement. One of his friends was
general counsel to the Citizens' Commission on Jail
Violence ("CCJV") formed by the Los Angeles County
Board of Supervisors. He described the friend only as the
"head of the Los Angeles Police Commission." A CCJV
report was later introduced at trial to support
Monell liability. There is no evidence that S.M. was
aware during voir dire of any connection between his friend
and the CCJV report that would be used at trial. S.M. later
testified that he had not known that the friend was involved
in the CCJV, and that he had not spoken with the friend about
"any jail-related commissions." S.M. was also a
friend of an exoneree whom appellees' counsel's firm
represented. At voir dire, S.M. told the court that he was
not sure whether that friend was pursuing a civil case and,
if so, who was representing the friend. S.M. also told the
court he thought his mother was a friend of appellees'
counsel. Appellees' counsel informed the court that he
had at most a professional relationship with S.M.'s
mother. Appellees had already used all of their peremptory
challenges. Their counsel moved to excuse S.M. for cause. The
court denied the motion.
next day, after he had been seated on the jury, S.M.
submitted a note to the judge stating that his father was
currently vice-president of the ACLU Foundation of Southern
California and had previously served as president. S.M.
explained that he had forgotten the connection during voir
dire because his father's "primary work" was in
entertainment law, and because his father spent comparatively
little time doing pro bono work for the ACLU Foundation. In
response to questioning, S.M. stated that he and his family
members had discussed "issues of jail inmates"
during the previous six months and that he and his family
members agreed that prisoners "certainly need
protection of their civil rights and constitutional rights .
. . despite the fact they are incarcerated." S.M.
stated, however, that he was not sure whether any of these
discussions concerned abuses on the part of LASD, and stated
that his father had not talked to him about litigation
related to prisoners' rights. Appellants again moved to
excuse S.M. for cause. The court again denied the motion.
S.M. became the jury foreperson.
near the time that the case was submitted to the jury,
S.M.'s mother wrote an op-ed in the Los Angeles
Times advocating for civilian oversight of LASD, in part
because of the conditions in the county jails. Appellants
again moved to remove S.M. from the jury. The court denied
respect to individual liability, appellees' testimony at
trial is summarized above. Non-party inmates testified to
having been subjected to similar treatment during their cell
extractions. Appellants testified that their use of force was
justified under the circumstances, given the violent behavior
of appellees and their fellow inmates prior to the
extractions as well as the risks involved in extracting high
respect to county liability, appellees presented evidence
that the county had a custom or policy of ignoring excessive
force used by jail officials, thereby creating a jail culture
that proximately caused the beatings and tasing to which
appellees were subjected. Appellees submitted the report,
mentioned above, by the CCJV. The CCJV report concluded, with
respect to the Men's Central Jail, that "senior
management failed to investigate the excessive use of force
problems" at the jail; that "[s]everal key
department leaders ignored deputy aggression and discouraged
discipline" at the jail; and that senior jail officials
had not taken steps to investigate approximately one hundred
use-of-force allegations. The report recounted
Department-wide deficiencies in practices and policies
governing use of force, excessive force investigations, and
discipline for using excessive force. Appellees presented
testimony from appellant Cruz's former supervisor,
Commander Robert Olmsted. Olmsted testified that he had
investigated use-of-force incidents at the jail and had found
a major increase in such incidents during Cruz's tenure.
Olmstead's investigation uncovered problems in
investigating and reporting use-of-force incidents, and in
approval of uses of force. Olmstead ...