Keely Johnson v. County of Sonoma; Catherine Speaks, Deputy; Gregory Hals, Deputy

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEELY JOHNSON,
Plaintiff - Appellant,
v.
COUNTY OF SONOMA; CATHERINE
SPEAKS, DEPUTY; GREGORY
HALS, DEPUTY,
Defendants - Appellees.
No. 14-15276
D.C. No. 3:11-cv-05811-CRB
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Submitted January 7, 2016**
San Francisco, California
Before: WALLACE and KOZINSKI, Circuit Judges, and WHALEY,***
Senior District Judge.
FILED
FEB 19 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Robert H. Whaley, Senior District Judge for the U.S.
District Court for the Eastern District of Washington, sitting by designation.

-- 1 of 3 --

page 2
The district court appropriately exercised its discretion in instructing the jury
regarding Ms. Johnson’s excessive force claim. “Jury instructions must be
formulated so that they fairly and adequately cover the issues presented, correctly
state the law, and are not misleading.” Brewer v. City of Napa, 210 F.3d 1093,
1097 (9th Cir. 2000) (quoting Chuman v. Wright, 76 F.3d 292, 294 (9th Cir.
1996)). The instructions given by Judge Breyer easily meet this standard, as they
clearly direct the jury to conduct the essential inquiry in excessive force cases:
whether, given all of the circumstances known to the officer, the use of force was
“objectively reasonable.” See Graham v. Connor, 490 U.S. 386, 396 (1989).
The absence of an instruction regarding the availability of alternatives to
subdue Ms. Johnson does not render the instructions inadequate. A district court’s
refusal to include detailed instructions addressing specific factors to be considered
is not error where the instructions adequately direct the jury to consider the totality
of the circumstances in determining whether the application of force was
objectively reasonable. See Brewer, 210 F.3d at 1097; see also Fikes v. Cleghorn,
47 F.3d 1011, 1014 (9th Cir. 1995) (“This instruction complies with Graham by
focusing on the totality of the circumstances.” (emphasis in original)). This is
especially true in light of Ms. Johnson’s failure to offer any direct evidence
regarding the availability of alternative methods of control.

-- 2 of 3 --

page 3
Despite Ms. Johnson’s contention that she was entitled to the instruction
because the availability of alternatives was her theory of the case, it is not error to
decline to give a “theory-of-the-case instruction” where the remaining instructions
cover the proponent’s theory. Brewer, 210 F.3d at 1097 (quoting United States v.
Lawrence, 189 F.3d 838, 843 (9th Cir. 1999)). The instructions gave Ms. Johnson
ample room to argue her theory of the case to the jury, and otherwise fairly and
adequately covered the issues presented, correctly stated the law, and were not
misleading.
AFFIRMED.

-- 3 of 3 --