Brenda Lee Nadell Brian Sidney Nadell, Hugh M. Davis Curt Obront William Whitehead, III Robert J. Kossack, Intervenors v. Las Vegas Metropolitan Police Department S. Leyba, Officer M. Etherton, Officer G. Zeil, Officer, Brenda Lee Nadell Brian Sidney Nadell, Hugh M. Davis Curt Obront William Whitehead, III Robert J. Kossack, Intervenors v. Las Vegas Metropolitan Police Department S. Leyba, Officer, M. Etherton, Officer G. Zeil, Officer

Citations: 268 F.3d 924; 2001 Cal. Daily Op. Serv. 8671; 2001 Daily Journal DAR 10751; 57 Fed. R. Serv. 1382; 2001 U.S. App. LEXIS 21517Docket: 99-16383

Court: Court of Appeals for the Ninth Circuit; October 5, 2001; Federal Appellate Court

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Brenda Lee Nadell and Brian Sidney Nadell, along with intervenors Hugh M. Davis, Curt Obront, William Whitehead III, and Robert J. Kossack, appealed against the Las Vegas Metropolitan Police Department and Officers Leyba, Etherton, and Zeil in a case that addressed allegations of civil rights violations under 42 U.S.C. § 1983. The events stemmed from an incident on July 22, 1994, when Brenda Nadell, after consuming alcohol at Michael Laing's residence, was involved in an altercation that led to police intervention. Following her confrontation with officers, Nadell was arrested for battery on a police officer, though the Clark County District Attorney initially declined prosecution until Nadell filed a complaint against Leyba for excessive force. 

In her lawsuit, Nadell claimed false arrest, unreasonable search and seizure, and unlawful retaliation for exercising her First Amendment rights. To support her excessive force claims, she sought to introduce expert testimony from Dr. Michael Krieger, who conducted a quantitative electroencephalogram (QEEG) on her, asserting that it demonstrated physical injury from the arrest. However, the district court excluded Dr. Krieger's testimony, determining the QEEG lacked reliability. The defendants moved for judgment as a matter of law, resulting in the dismissal of Nadell's unreasonable search and seizure claim due to her lack of standing as a temporary guest in Laing's home. The Ninth Circuit reviewed these decisions, particularly focusing on the trial judge's application of the Daubert standard regarding expert testimony.

The jury ruled that Nadell was not falsely arrested but found Leyba liable for violating her civil rights through excessive force and retaliatory actions for her First Amendment exercise. The LVMPD was also found liable for failing to discipline Leyba and inadequately investigating Nadell's excessive force claim, resulting in an award of $1.00 in nominal damages to Nadell. The defendants filed renewed motions for judgment as a matter of law on the retaliation, excessive force, and failure to discipline claims, while Nadell sought a new trial regarding damages and her unreasonable search and seizure claim. The district court denied all motions, leading to an appeal and cross-appeal.

Nadell contended that the district court erred in excluding QEEG scientific testimony under Federal Rule of Evidence 702. The court conducted a two-day evidentiary hearing and deemed the QEEG test unreliable and "error prone," noting that it could not differentiate between Nadell’s prior head injuries and those from the arrest. The court's decision was supported by expert testimony regarding the QEEG technique's lack of general acceptance for diagnosing closed head injuries, affirming its role as a gatekeeper in excluding expert testimony.

Nadell also claimed the court erred in granting the defendants' motion for judgment as a matter of law concerning her unreasonable search claim under 42 U.S.C. § 1983. The court determined that Nadell did not have a legitimate expectation of privacy, as she was not an overnight guest but merely present with the consent of the householder. Consequently, the court concluded that it did not err in granting the defendants' motion.

Nadell contends that the district court erred in instructing the jury regarding nominal damages, asserting that nominal damages must be awarded when a constitutional violation occurs without proven actual damages, as established by George v. City of Long Beach. The court's instruction, based on Ninth Circuit Model Jury Instructions, was appropriate, and the jury's award of nominal damages was justified by substantial evidence indicating Nadell's injuries were self-inflicted or due to her own violent actions.

Cross-appellant Leyba claims the district court wrongly denied his motion for judgment as a matter of law regarding Nadell's excessive force claim. However, substantial evidence supported the jury's conclusion that Leyba used excessive force, including corroborated testimony of Leyba's actions against Nadell.

Leyba also argues that the court erred in denying his motion concerning Nadell's First Amendment retaliation claim. The trial presented sufficient evidence for the jury to determine that Leyba retaliated against Nadell for her complaint to the Internal Affairs Bureau, resulting in her being subjected to a criminal prosecution. Leyba's liability was not lessened by the district attorney's involvement, as the jury found that Leyba's actions were a proximate cause of Nadell's prosecution, countering the presumption of independent judgment by the prosecutor.

Furthermore, Leyba is not entitled to qualified immunity if the right violated was clearly established at the time of the incident and if a reasonable officer would not have believed their actions were lawful. The right to be free from government retaliation for First Amendment activities was well-established when Nadell filed her complaint, thus the district court's denial of Leyba's motion for judgment as a matter of law was appropriate.

Cross-appellant LVMPD contends that the district court incorrectly denied its motion for judgment as a matter of law regarding Nadell's municipal liability claim based on Leyba's excessive force. For municipal liability to be established, a plaintiff must demonstrate that a constitutional deprivation resulted from a municipal policy, which requires a deliberate choice by a policymaking official. Such a policy can be inferred from widespread practices or recurring constitutional violations that go unpunished. However, a single incident or unconstitutional act by a non-policymaking employee is insufficient to prove the existence of a municipal policy or custom. At trial, no evidence was presented to show that the excessive force used was a formal policy or a widespread practice within the LVMPD, nor were there prior constitutional violations for which the involved officers faced disciplinary action. Consequently, the evidence did not support the jury's finding of municipal liability. The court concluded that the absence of evidence indicating a pervasive practice of excessive force precluded inferring it as a custom. Therefore, the district court's denial of LVMPD's motion was deemed erroneous, leading to the reversal of the judgment against LVMPD for excessive force while affirming other parts of the decision. The panel determined the case could be decided without oral argument.