Pedro Miramontes v. Officer Klevos; Officer Berger; Anaheim Police Department; Sgt. Freisen

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PEDRO MIRAMONTES,
Plaintiff - Appellant,
v.
OFFICER KLEVOS; OFFICER
BERGER; ANAHEIM POLICE
DEPARTMENT; SGT. FREISEN,
Defendants - Appellees.,
_________________________,
SGT. PREISER,
Defendant.
No. 11-56641
D.C. No. 8:08-cv-00579-ABC-
RNB
MEMORANDUM*
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.
FILED
APR 24 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2
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 of 3 --

3
did the instruction reference all the circumstances, but the list of the five factors
was prefaced with the word “including.”
AFFIRMED.

-- 3 of 3 --