Elizabeth Evon Nichols v. City of Portland;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELIZABETH EVON NICHOLS,
Plaintiff - Appellant,
v.
CITY OF PORTLAND; et al.,
Defendants - Appellees.
No. 13-35987
D.C. No. 3:12-cv-01889-MO
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Submitted November 5, 2015**
Portland, Oregon
Before: KOZINSKI, BERZON, and WATFORD, Circuit Judges.
Elizabeth Evon Nichols appeals from a jury verdict entered against her
following a trial on her claims under 42 U.S.C. § 1983. On appeal, she challenges
only the district court’s formulation of two jury instructions, one pertaining to
FILED
NOV 13 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

-- 1 of 3 --

Page 2 of 3
whether the officers’ use of force against her was reasonable and another stating
the elements of a First Amendment retaliation claim under § 1983.
1. We need not decide whether Nichols preserved her objection to the
district court’s “least intrusive alternative” instruction. Regardless of our standard
of review, that instruction was neither misleading nor an incorrect statement of the
law. See Hunter v. Cty. of Sacramento, 652 F.3d 1225, 1232 (9th Cir. 2011). The
district court properly instructed the jury to consider whether the officers’ use of
force was objectively reasonable under the totality of the circumstances. See
Graham v. Connor, 490 U.S. 386, 396–97 (1989). Nichols argues that the “least
intrusive alternative” instruction was erroneous because it did not expressly
instruct the jury to balance the force used against the apparent need for force. The
immediately preceding instruction made clear, however, that the jury was to
consider those factors in determining whether the officers’ use of force was
reasonable.
2. Nor did the district court err by instructing the jury that, in order to find
Sergeant McDaniel liable for First Amendment retaliation, it needed to find that his
desire to chill Nichols’s speech was a “substantial or motivating factor for [his]
action.” The court’s instruction correctly reflected our case law concerning the
causation element of a First Amendment retaliation claim brought by a private

-- 2 of 3 --

Page 3 of 3
plaintiff under § 1983. See Lacey v. Maricopa Cty., 693 F.3d 896, 916–17 (9th
Cir. 2012) (en banc); Skoog v. Cty. of Clackamas, 469 F.3d 1221, 1231–32 (9th
Cir. 2006).
AFFIRMED.

-- 3 of 3 --