ORDER GRANTING IN PART/DENYING IN PART DEFENDANTS' RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW; DENYING IN PART DEFENDANTS' MOTION FOR AMENDED JUDGMENT/AMENDING PAST MEDICAL DAMAGES JUDGMENT SUA SPONTE; AND DENYING DEFENDANTS' MOTION FOR NEW TRIAL/AMENDING BANE ACT JUDGMENT SUA SPONTE
GARLAND E. BURRELL, Jr., Senior District Judge.
Defendants Zachary Rose ("Rose") and County of Sacramento (collectively, "Defendants") move under Federal Rule of Civil Procedure ("Rule") 59 for an order amending judgment, arguing: (1) the jury's damage award for "future non-economic loss" is not supported by evidence, (Defs.' Cty. of Sacramento & Zachary Rose's Mot. for Am. J. or Mot. for New Trial ("New Trial Mot.") 3:14, ECF No. 206); and (2) the jury's past medical damages award should be reduced by the amount of medical expenses the County of Sacramento already paid, (id. at 4:6-7). Defendants also move under Rule 59 for a new trial based on the following assertions: (1) the judge erred when he reduced the number of empaneled jurors from eight to seven, (id. at 4:21); (2) the judge erred when he sustained Plaintiff's objection during a sidebar conference immediately prior to opening statements by ruling Defendants were prevented from mentioning in their opening statement disputed evidence, which they argued in a conclusory manner was admissible under Rule 404(b) of the Federal Rules of Evidence, (id. at 5:5); (3) the judge erred when he included and/or excluded certain language in the jury instructions on Plaintiff Robert I. Reese Jr.'s ("Reese's") Fourth Amendment and Bane Act claims,1 (id. at 5:27-7:7, 10:3-11); (4) the jury's verdict is contrary to the evidence, (id. at 8:8); (5) the judge erred when he did not grant Defendants' motion in limine in which they sought to exclude Reese's police practices expert, (id. at 11:12); and (6) certain of the judge's evidentiary rulings, individually and collectively, prejudiced Defendants, (id. at 11:25).
Defendants also move under Rule 50(b) for judgment in their favor, arguing: all claims are barred by the principle the United States Supreme Court enunciated in Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), which bars a lawsuit if the relief sought would invalidate a criminal conviction, (Defs.' Cty. of Sacramento & Zachary Rose's Renewed Mot. for J. as a Matter of Law ("JMOL Mot.") 2:4-6, ECF No. 205); and Reese failed to satisfy the causation element of each claim, (id. at 12:1). Further, Rose moves under Rule 50(b) for judgment in his favor on Reese's Fourth Amendment excessive force claim, arguing his qualified immunity defense shields him from being exposed to liability on this claim. (Id. at 8:18.)
A general verdict was returned by the jury against Rose on Reese's Fourth Amendment excessive force claim and against Defendants on Reese's California battery claim and California Bane Act claim. The jury awarded Reese $534,340.00 in damages, which consists of $34,340.00 for past medical expenses, $350,000.00 for past non-economic loss, and $150,000.00 for future non-economic loss. (Revised Verdict Form ("Verdict Form") 2, ECF No. 164.) Judgment was entered on January 15, 2016. (ECF No. 197.)
I. LEGAL STANDARD
A. Renewed Motion for Judgment as a Matter of Law
The following standard applies to a Rule 50(b) motion for judgment as a matter of law:
the court . . . may not make credibility determinations or weigh the evidence. Rather, [it] must view the evidence in the light most favorable to the nonmoving party . . . and draw all reasonable inferences in that party's favor. The test applied is whether the evidence permits only one reasonable conclusion, and that conclusion is contrary to the jury's verdict.
E.E.O.C. v. Go Daddy Software, Inc., 581 F.3d 951, 961 (9th Cir. 2009) (first and third alterations in original) (citations and internal quotation marks omitted).
B. Motion to Amend Judgment
"Amendment or alteration [of the judgment] is appropriate under Rule 59(e) if (1) the district court is presented with newly discovered evidence, (2) the district court committed clear error or made an initial decision that was manifestly unjust, or (3) there is an intervening change in controlling law." Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th Cir. 2001). However, a motion to alter or amend the judgment "may not be used to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment." Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n. 5 (2008).
C. Motion for New Trial
The motion for a new trial may invoke the discretion of the court in so far as it is bottomed on the claim that the verdict is against the weight of the evidence, that the damages are excessive, or that, for other reasons, the trial was not fair to the party moving; and [the motion] may raise questions of law arising out of alleged substantial errors in admission or rejection of evidence or instructions to the jury.
Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251 (1940). "A new trial is only warranted when an erroneous evidentiary ruling `substantially prejudiced' a party." Ruvalcaba v. City of L.A., 64 F.3d 1323, 1328 (9th Cir. 1995).
II. RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW
A. Heck v. Humphrey
Defendants argue under Rule 50(b) that judgment should be entered in their favor on all claims, contending that Reese's no contest plea to a violation of California Penal Code section 417(a)(1) renders all claims barred by the following principle enunciated in Heck, 512 U.S. at 486-87 (footnote omitted):
to recover damages for . . . unlawfulness [that] would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus. . . .
The California Supreme Court applied the reasoning in Heck to state claims in Yount v. City of Sacramento, 43 Cal.4th 885 (2008). Defendants argue since each claim contains a liability theory that necessarily implies the invalidity of Reese's California Penal Code section 417(a)(1) conviction, which is proscribed by the Heck principle, all claims are barred by this principle.
Reese counters, inter alia, that the Heck principle does not apply to this lawsuit because "Defendants never provided the [federal c]ourt with a factual basis for Plaintiff's [referenced] no contest plea" and therefore have not shown that the Heck principle bars any claim. (Pl.'s Mem. in Opp'n to Mot. ("JMOL Opp'n") 3:10-20, ECF No. 208.)
It is undisputed that Reese was convicted of violating California Penal Code section 417(a)(1), which states in pertinent part:
Every person who, except in self-defense, in the presence of any other person, draws or exhibits any deadly weapon whatsoever . . . in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a deadly weapon . . . in any fight or quarrel is guilty of a misdemeanor. . . .
Cal. Penal Code § 417(a)(1).
Defendants argue: "Plaintiff admitted [during the jury trial in this case] that he displayed . . . [a] knife when he opened the door [to his apartment in response to knocking on that door], but denied [that this display] was [done in an] angry or threatening [manner], and [he] could not say whether the manner of display was `not polite.'" (JMOL Mot. 6:8-10 (citing Trial Tr. vol. 2, 357:22-359:19, ECF No. 180).) Reese's testimony concerning the "rude" term in California Penal Code section 417(a)(1) is the following:
Q. You understand the term "rude"?
A. Yes, I do.
Q. How is it that you understand it?
A. To not be polite.
Q. Do you believe that you displayed the knife with the officers present in a manner that was not polite? . . .
[Plaintiff]: I don't know how to answer that. I know I answered the door with a knife in my hand. Rude, not polite, I cannot say.
(Trial Tr. vol. 2, 358:17-359:2.)
Defendants have not shown that Reese's trial testimony invalidates his California Penal Code section 417(a)(1) conviction, since even if Reese's conviction is dependent on a finding of "rudeness," his trial testimony did not invalidate that conviction finding. Nor have Defendants shown that the victim or victims of the conviction were the deputy sheriff officers involved in this federal lawsuit. Therefore, the portion of Defendants' Motion for Judgment premised on the Heck principle is DENIED.
B. Verdict Is Contrary to the Evidence
Each Defendant contends judgment should be entered in their favor on all claims, or in the alternative a new trial should be ordered, because the evidence presented was neither sufficient to sustain the jury's finding of excessive force nor the causation element of each claim.
Defendants argue "no reasonable jury could have found the force [used] was unreasonable" in light of the "fast evolving situation" the deputy sheriff officers encountered. (JMOL Mot. at 13:13-14.) Specifically, Defendants contend force was applied in a situation where sheriff deputies were responding "to a 9-1-1 call for shots fired [by a perpetrator] with an automatic gun[ and] wielding a steak knife in apartment 144." (New Trial Mot. 8:9-11.) Defendants also argue:
[in s]eeking to further investigate and check on the occupant of apartment 144, and/or make contact in order to gather more information, Deputy Rose stood approximately arms-length away from the door [for apartment 144], and knocked. Deputy Brown positioned himself by some trees about 15 feet south of the front door of apartment 144. Deputies Steindorf, Gillock and Peyton took positions behind Deputy Rose. Other deputies went around the back of the building, or were in the parking lot. As found by the jury, Plaintiff opened the door with a knife in one hand in an elevated position, crossing the threshold. Believing Plaintiff posed an imminent danger to Deputy Rose, Deputy Brown fired one shot from his AR-15 rifle. Deputy Brown thought his round hit Plaintiff. Deputy Rose, who had been at the side of the door, saw Plaintiff move back from the threshold and out of his view. Deputy Rose immediately moved to the area in front of the threshold, and was surprised to see Plaintiff, standing approximately three feet in front of him. Deputy Rose believed Plaintiff still posed a threat, but did not see Plaintiff's hands. Within seconds of Plaintiff opening the door[ and] hearing Deputy Brown fire a shot, Deputy Rose fired one 9mm round from his P-226 Sig Sauer handgun. The jury found that Plaintiff did not brandish the knife, and at the time Deputy Rose fired his shot, it did not appear Plaintiff "posed an immediate threat of death or serious physical injury." The jury found Rose's round struck Plaintiff, and not Brown's. Defendant Rose submits this fast evolving situation means no reasonable jury could have found the force was unreasonable.
(Id. at 8:11-27.)
Reese counters the "jury's determination that Plaintiff did not pose an immediate threat of death or serious physical injury to Rose when Plaintiff was shot was . . . consistent with the trial evidence." (Opp'n to New Trial Mot. ("New Trial Opp'n") 15:5-7, ECF No. 210.) Reese argues:
Upon [Rose] seeing Plaintiff open the door with a knife in his hand, Deputy Rose's immediate reaction was to back up. As Deputy Rose backed up, Plaintiff never advanced toward him. Deputy Rose never saw Plaintiff step out of his apartment. Plaintiff did not make any threats towards Deputy Rose. After he backed up some distance, Deputy Rose heard the first gunshot fired by Deputy Brown. Deputy Brown fired approximately one to two seconds before Deputy Rose fired and only fired once because he saw the knife drop, saw Plaintiff backing up inside his apartment, and understood that the threat was reduced or gone after his first shot.
(Id. at 15:6-16.)
Defendants also contend: "Plaintiff did not establish [the] causation [element of any claim by] . . . a preponderance of the evidence in terms of a touching or [a] constitutional violation, . . . [and this causation element] hinges on Rose's round being the round that hit Plaintiff, a[nd] it is undisputed only one round did so." (New Trial Mot. 8:28-9:2.) Specifically, Defendants argue Reese's counsel asked the jury during closing argument to speculate as to causation by "arguing[,] `how could Rose miss at three feet away?'" (Id. at 9:26-27.) Defendants further contend Reese did not present forensic evidence, trajectory expert testimony, or an explanation of "the [following] physical impossibility": Rose is taller than Reese, Reese stood inside his apartment on an elevated surface located at the entry point of the door threshold, "Rose was not situated above Plaintiff[,] and there was no evidence Plaintiff was bending over." (JMOL Mot. 13:17-27.)
Reese rejoins: there "was strong circumstantial evidence that undermined the officers' narrative and showed that Brown could not have fired the shot that struck Plaintiff." (New Trial Opp'n 14:13-15.) Reese further argues:
Brown is 5'9" and held the rifle at shoulder level or still below shoulder level as he had not fully brought the gun up to a level position when he fired whereas Plaintiff is 5'7" (and sustained a bullet injury with an entry wound near his sternum/front of chest described by Dr. Owens and Dr. Humphries as having a downward path with an angle between 10 and 45 degrees. There were two rounds recovered in the apartment and the bullet in the kitchen wall behind Plaintiff was approximately 5 to 6.5 feet off the ground.
Brown admitted uncertainty as to whether or not his round struck Reese and acknowledged that his trial testimony was different for [sic] his deposition testimony so as to suggest (at trial) that i[t] was more likely that he had shot Plaintiff. Rose, in contrast, acknowledged seeing Plaintiff standing there, with no blood . . . and no indication of having been shot when Rose fired his round aimed at Plaintiff's chest at approximately a 60 degree angle. After Rose fired, Plaintiff fell backwards, leaving Rose with the impression that his round had struck Plaintiff. Rose also saw blood on Reese after Rose fired.
(Id. at 14:15-15:4 (citations omitted).)
Reese also argues:
The bullet fired from Brown's rifle lodged in the wall of the kitchen six and a half feet off the ground. Given that the rifle bullet lodged in the wall at a height that was above Reese's head, it is inconceivable that a bullet leaving his body at a downward angle could have lodge there. The bullet from Deputy Rose's pistol, in contrast, lodged in a closet door three and a half feet off the ground. There was evidence (carpet fibers on the bullet) suggesting that the pistol bullet, after leaving Reese, had ricocheted off the floor before becoming lodged in the closet door. In contrast, there were no carpet fibers on the rifle bullet and thus no indication that the rifle bullet had ricocheted.
(JMOL Opp'n 14:24-15:4 (citations omitted).)
Defendants have not sustained their burden of showing that the evidence is insufficient to support the jury's liability findings. Therefore, these motions are DENIED.
C. Qualified Immunity
Rose moves for judgment on his qualified immunity defense, arguing this defense shields him from liability on Reese's federal Fourth Amendment claim. Specifically, Rose relies on the clearly established law prong of this defense, contending there was no clearly established law evincing that Rose lacked probable cause to believe that Reese posed an immediate threat of death or serious physical injury to Rose when Rose applied the subject force. (JMOL Mot. 11:17-25.)
Reese counters: "it is clearly established that the use of deadly force is not reasonable if the [the victim of the force] does not pose an immediate threat of death or serious bodily injury"; and here "[w]hether an immediate threat actually existed is a question of fact that was determined by the jury" when it answered "no" to the following written question: "At the time Deputy Rose fired his shot, did it appear that Plaintiff posed an immediate threat of death or serious physical injury to Deputy Rose?" (JMOL Opp'n 12:24-27; Verdict Form Question No. 14 (emphasis added).)
Decision on the clearly established law prong of Rose's qualified immunity defense requires determining the factual circumstances attendant to Rose's use of deadly force, so that it can be ascertained whether "any reasonable" law enforcement officer would have understood that use of deadly force was then proscribed by clearly established Fourth Amendment excessive force law in the circumstances that could have been perceived to exist when Rose applied the subject force. The United States Supreme Court explains in City & County of San Francisco v. Sheehan, 135 S.Ct. 1765, 1774 (2015) (emphasis added): "An officer `cannot be said to have violated a clearly established right unless the right's contours were sufficiently definite that any reasonable official in [his] shoes would have understood that he was violating it,' meaning that `existing precedent . . . placed the statutory or constitutional question beyond debate.'" Close scrutiny of Question Number 14, submitted to the jury, reveals that the jury's answer to that question does not aid in the analysis of what any objectively reasonable officer in Rose's shoes would have perceived and done in Rose's situation, because Question Number 14 does not specify from whose perspective it did appear that Reese posed an immediate threat of death or serious physical injury to Rose, and the word "appear" in Question Number 14 is vague. The United States Supreme Court explains in Malley v. Briggs, 475 U.S. 335, 341 (1986), that law enforcement officers "will not be immune if, on an objective basis, it is obvious that no reasonably competent officer would have concluded that . . . [the subject force at issue was within constitutional bounds]; but if officers of reasonable competence could disagree on this issue, immunity should be recognized."
Examination of Question Number 14 reveals it sought a response from the jury that was "purely speculative." Vojdani v. Pharmsan Labs, Inc., 741 F.3d 777, 782 (7th Cir. 2013) (finding district court had discretion to reject plaintiff's interpretation of a special jury instruction, even though plaintiff's interpretation would have been consistent with the verdict, because to accept plaintiff's interpretation would allow the jury to render a "purely speculative" finding). "`The jury's role as the finder of fact does not entitle it to return [an answer to a question] based only on confusion [or] speculation.'" Hernandez v. Keane, 341 F.3d 137, 143 (2d Cir. 2003) (quoting Goldhirsh Grp., Inc. v. Alpert, 107 F.3d 105, 108 (2d Cir. 1997)).
The speculative nature of this finding is evinced by the common definition of the word "appear" in Question Number 14, which is "seem" or "give the impression of being." Appear: Definition of Appear, Oxford Dictionary (May 16, 2016, 10:35 AM), http://www.oxforddictionaries.com/us/definition/american_english/ appear. "[T]he court may look to sources such as dictionaries for a definition [of a term]." United States v. Mohrbacher, 182 F.3d 1041, 1048 (9th Cir. 1999) (citing Muscarello v. United States, 524 U.S. 125, 128-130 (1998)); see also United States v. Maciel-Alcala, 612 F.3d 1092, 1096 (9th Cir. 2010) (stating: "dictionary definitions are cognizable" as tools for determining the ordinary meaning of words used in a statute); Terrell v. United States, 564 F.3d 442, 451 (6th Cir. 2009) (citing MCI Telecomm. Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218, 225 (1994); Nat'l R.R. Passenger Corp. v. Bos. & Me. Corp., 503 U.S. 407, 418 (1992)) ("A word's ordinary meaning is often determined by reference to dictionaries."). Applying this definition of the word "appear" reveals that Question Number 14 asks: "did it [seem or give the impression of being] that Plaintiff posed an immediate threat of death or serious physical injury." This language is too vague for Question Number 14 to constitute a "fact" because it connotes "supposition" or a guess about what "might have happened." See United States v. Jones, 856 F.2d 146, 150 (11th Cir. 1988) (citing 35 C.J.S., Fact § 490 (1960); Black's Law Dictionary 531 (rev. 5th ed. 1969) (defining a fact as that which has taken place)) (defining a "fact" as "a reality as distinguished from supposition or opinion; . . . a truth as distinguished from fiction or error; what took place, as distinguished from what might or might not have happened"). The phrasing also does not address whether law enforcement officers of reasonable competence in Rose's position may have had the reasonable but mistaken belief that his life was in immediate danger when deadly force was used. See C.B. v. City of Sonora, 769 F.3d 1005, 1027 (9th Cir. 2014) ("An officer who reasonably but mistakenly believes that his actions are warranted . . . may be entitled to qualified immunity."). The jury's ambiguous response to Question Number 14 is not the jury's fault because it was Rose's obligation to prepare a non-ambiguous question on his qualified immunity defense. See Zellner v. Summerlin, 494 F.3d 344, 368 (2d Cir. 2007) ("To the extent that a particular finding of fact is essential to a determination by the court that the defendant is entitled to qualified immunity, it is the responsibility of the defendant to request that the jury be asked the pertinent question.") Reese insisted that the judge not be involved in formulating qualified immunity jury questions, and argued that it was solely the obligation of the proponent of the qualified immunity affirmative defense to satisfy his burden of presenting the jury with clear questions pertinent to that defense.
The jury should not have been required to return an answer to Question Number 14 since the question sought a speculative response. Nevertheless, "[j]udgment as a matter of law is appropriate [on the qualified immunity issue] when the evidence presented at trial permits only one reasonable conclusion." Santos v. Gates, 287 F.3d 846, 851 (9th Cir. 2002); Thompson v. Mahre, 110 F.3d 716, 721 (9th Cir. 1997) ("Findings of fact are ordinarily reviewed for clear error, but application of law to the facts to determine whether on those facts, qualified immunity is established, is reviewed de novo, because the determination of qualified immunity on facts not genuinely at issue is for the court."). However, when deciding this issue "the jury's view of the facts must govern [the court's] analysis. . . ." A.D. v. Cal. Highway Patrol, 712 F.3d 446, 457 (9th Cir. 2013).
The facts evince that Rose confronted Reese on March 25, 2011, sometime after Rose responded to a 9-1-1 call at 5:00 AM concerning shots fired in Reese's apartment complex. The 9-1-1 caller gave Reese's apartment number as the location of the person who fired a pistol described as an automatic firearm and said Reese also had a knife, was acting crazy, and was possibly high on drugs. (Trial Tr. vol. 1, 97:12-21, ECF No. 179; Trial Tr. vol. 2, 230:17-21, 232:10-13.) Rose knocked on Reese's door. (Trial. Tr. vol. 1, 103:11-12.) Rose was the closest officer to the door. (Id. at 108:12-15.) The jury found that Reese responded to the knock by opening the door with a knife in his hand held in an "elevated position," and a "part" of Reese's "body cross[ed] the threshold of the door prior to when Sherriff Deputy Brown" fired the "first shot" at Reese. (Verdict Form Question Nos. 6, 7.) After Brown fired his weapon at Reese, Reese immediately moved back into the apartment, out of Rose's sight. (Trial Tr. vol. 1, 186:13-15.) Rose then pursued Reese by entering the apartment, and upon entry he saw Reese facing him from only three to five feet away—within arm's reach. (Trial Tr. vol. 2, 206:17-18, 238:04-06.) At that moment—immediately before Rose fired his weapon at Reese—the jury found that Rose did not see Reese's hands. (Verdict Form Question No. 13.) The evidence evinces that the entire episode, from the moment Reese opened the door to when Rose shot Reese, occurred "very quickly." (Trial Tr. vol. 2, 209:12-13.) Rose testified that "approximately two seconds" passed between Brown's shot and Rose's shot, (id. at 213:10-12); Brown testified that one and a half seconds to two seconds passed between his shot and Rose's shot, (Trial Tr. vol. 1, 116:06-08); and Reese testified that he felt pain "a second or two" after he heard the first shot, (Trial Tr. vol. 2, 142:21-23).
Further, the undisputed evidence evinces that after the first shot Rose pursued Reese to apprehend him, Reese was arrested, and Reese was subsequently taken to the hospital for treatment of his injury. (Trial Tr. vol. 3, 571:7-8, ECF No. 181.) The probable cause justifying Reese's arrest is undisputed. "[W]hen [a] police [officer] . . . [has] probable cause to . . . arrest [a criminal suspect for a crime reasonably perceived to have occurred in the officer's presence, the suspect's] act of retreating into [his apartment does not] thwart an otherwise proper arrest." United States v. Santana, 427 U.S. 38, 42 (1976). Further, "[w]henever an officer restrains the freedom of a person to walk away, he has seized that person," and "there can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment." Tennessee v. Garner, 471 U.S. 1, 7 (1985). However, "[w]here the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so." Id. at 11.
The issue is whether the extant of clearly established law in March 2011 would have put a reasonable officer in Rose's position on notice that his use of deadly force would effect a Fourth Amendment violation. The Supreme Court discussed the factual similarity required by clearly established law doctrine in Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2083 (2011), explaining that the principle "do[es] not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate."
Qualified immunity shields an officer from suit when [he] makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances [ ]he confronted. Because the focus is on whether the officer had fair notice that [his] conduct was unlawful, reasonableness is judged against the backdrop of the law at the time of the conduct. If the law at that time did not clearly establish that the officer's conduct would violate the Constitution, the officer should not be subject to liability. . . .
Brosseau v. Haugen, 543 U.S. 194 (2004); see also Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (explaining that when deciding whether "actions constituted [an illegal measure] of `deadly force,' all that matters is whether [the defendant's] actions were reasonable" (alterations in original)). "Reasonableness[] is always a very fact-specific inquiry." C.B., 769 F.3d at 1026.
Reese "bears the burden to show that the contours of the right [not to be subjected to deadly force] were clearly established" under the circumstances involved in this case. Clairmont v. Sound Mental Health, 632 F.3d 1091, 1109 (9th Cir. 2011); Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir. 2002) (stating "plaintiff bears the burden of showing that the right at issue was clearly established under this [clearly established right] prong" of the qualified immunity analysis). "Without that `fair notice,' an officer is entitled to qualified immunity." Sheehan, 135 S. Ct. at 1777. However, Reese has not cited authority containing facts closely analogous to this case that is sufficient to have placed Rose on notice that he could not use deadly force under the circumstances involved in this lawsuit.
Further, even if Rose was mistaken in believing that Reese still held a knife when Rose shot him, the qualified immunity law gives officials "breathing room to make reasonable but mistaken judgments." Sheehan, 135 S. Ct. at 1774. (See, e.g., Trial Tr. vol. 2, 336:2-3 (Reese testifying: "I believe I dropped the knife sometime after the door and the bang.").) "[T]he pivotal issue is whether [Rose], or an officer in [Rose's] position, would reasonably fear that [Reese] was going to [stab] him." Bowles v. City of Porterville, 571 F. App'x 538, 540 (9th Cir. 2014). This principle is illustrated in Bowles, where an officer shot and killed a suspect who pivoted and pointed a metallic object at the officer, which the officer believed to be a gun. Id. The metallic object was ultimately discovered to be the cylindrical top of a cologne bottle. Id. However, despite the officer's mistake, the Ninth Circuit found the officer's fear was reasonable because it was dark, the suspect had a cologne bottle with a metallic cylindrical top, the officer showed prior restraint, and it was a "`tense, uncertain, and rapidly evolving'" situation. Id. (quoting Graham, 490 U.S. at 397).
Similarly, an officer in Rose's situation could have had the "reasonable but mistaken belief" regarding his entitlement to use deadly force on Reese. Thomas v. Dillard, ___ F.3d ___, 2016 WL 1319765, at *19 (9th Cir. 2016). Therefore, Rose's motion for judgment on his affirmative qualified immunity defense from being liable for Reese's Fourth Amendment excessive force claim is GRANTED. See Snyder v. Trepagnier, 142 F.3d 791, 800 (5th Cir. 1998) ("There is no inherent conflict between a finding of excessive force and a finding of qualified immunity.").
III. MOTION TO AMEND JUDGMENT/MOTION FOR NEW TRIAL
A. Reduction of Damages
1. Pain and Suffering
Defendants argue judgment should be amended because the jury's award of $150,000 for "future non-economic loss" is not supported by evidence. (New Trial Mot. 3:14.) Specifically, Defendants contend: "[Reese] did not testify he continued to suffer any physical pain, `fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, apprehension, terror or ordeal.'" (Id. at 3:24-27 (quoting Capelouto v. Kaiser Found. Hosps., 7 Cal.3d 889, 892-93 (1972)).) Reese counters that evidence of his permanent scars "throughout his upper body" was sufficient for the jury to infer "that the permanent scars will affect [him in the] future." (Id. at 7:11-12.)
"A jury's verdict, including a damages award, must be upheld if supported by `substantial evidence.'" Freitag v. Ayers, 468 F.3d 528, 537 (9th Cir. 2006). Damages may be reduced if they are "clearly unsupported by evidence"; and "an otherwise supportable verdict must be [upheld] unless it is grossly excessive or monstrous or shocking to the conscience." Brady v. Gebbie, 859 F.2d 1543, 1557 (9th Cir. 1988) (internal quotation marks and citation omitted).
The jury viewed Reese's scars during the trial (Trial Tr. vol. 2, 337:12-24), and heard Reese's following testimony concerning his scars:
Q. Do you have any scars on your body from the surgeries?
A. Yes, I do.
Q. And where are the scars on your body?
A. Right side, one scar comes from here all the way back around by my shoulder blade.
(Id. at 336:24-337:3.)
Awards for non-economic damages, which include pain and suffering, can be supported by a finding of permanent scarring. See, e.g., Hall v. N. Am. Indus. Servs., Inc., No. 1:06-cv-0123 OWW SMS, 2008 WL 789895, at *7 (E.D. Cal. Mar. 21, 2008) (non-economic damages include both pain and disfigurement); Kennedy v. United States, No. CV08-02988 GAF(OPx), 2009 WL 3348404, at *12 (C.D. Cal. Oct. 13, 2009) (stating that plaintiff was entitled to non-economic damages for "pain, suffering, scarring, . . . and other consequences of her injuries" (emphasis added)).
In general, courts have not attempted to draw distinctions between the elements of "pain" on the one hand, and "suffering" on the other; rather, the unitary concept of "pain and suffering" has served as a convenient label under which a plaintiff may recover not only for physical pain but for fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, apprehension, terror or ordeal.
Capelouto, 7 Cal. 3d at 892-93.
In light of Reese's scarring, an inference can reasonably be drawn that Reese will continue to endure suffering. Therefore, Defendants have not shown that this portion of the judgment should be amended.
2. Past Medical Expenses
Defendants argue Reese's damages award for past medical expenses "should be reduced or offset" by $21,175.00, which is the amount the County of Sacramento has "already paid" under the County Indigent Program. (New Trial Mot. 4:8-9, 17-18.) Defendants argue California Government Code section 985(b) authorizes this post-jury verdict reduction. (Id. at 4:12-13.) Reese counters that Defendants' reliance on this California procedural law is misplaced "because this case is before the Court on federal question jurisdiction." (New Trial Opp'n 8:10-11.)
This procedural issue need not be decided since during trial the parties informed the jury that they stipulated as follows:
[F]or the past hospital bills of Robert Reese related to this incident $21,175 has been paid. No further amounts are owed by Robert Reese except for an additional $165. The parties agree that these amounts do not include the amounts owed to the doctors who treated Mr. Reese.
(Trial Tr. vol. 4, 642:1-7, ECF No. 182.)
"Under federal law, stipulations . . . are generally binding on the parties and the Court." Am. Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226 (9th Cir. 1988). Reese does not dispute that the County Indigent Program paid these expenses. Therefore, in light of this stipulation, and to prevent injustice, the judgment shall be amended by reducing $21,175.00, which is the amount the County Indigent Program paid for Reese's medical expenses. See E.E.O.C. v. Waffle House, Inc., 534 U.S. 279, 297 (2002) ("[I]t goes without saying that the courts can and should preclude double recovery by an individual." (internal quotation marks omitted)); F.C. Wheat Mar. Corp. v. United States, 663 F.3d 714, 725 (4th Cir. 2011) (upholding the district court's amended judgment of the jury's damages award to prevent double recovery); cf. Brady, 859 F.2d at 1557-58 ("[A] jury's award . . . should not be overturned or decreased unless it is clearly unsupported by the evidence or `shocks the conscience.'"). Accordingly, Reese is awarded $13,165.00 in past medical expenses.
B. Reducing the Jury to Seven (7) Jurors
Defendants argue they are entitled to a new trial because the trial judge wrongfully reduced the number of jurors prescribed in the supplemental pretrial order from eight (8) to seven (7) jurors, which Defendants contend constitutes prejudicial error. (New Trial Mot. 4:21.)
Initially, the trial judge issued a pretrial order stating eight (8) jurors would be empaneled. (Supplemental Pretrial Conference Order 3:16, ECF No. 81.) However, after Reese's counsel indicated at a bench conference during voir dire and off the record that Reese preferred less than eight (8) jurors be impaneled, (Trial Tr. vol. 1, 39:23-40:2), the trial judge reduced the number of jurors to be impaneled from eight (8) to seven (7), (id. at 40:16-18). Defendants objected to this reduction, but ultimately stated: "in terms of the number moving from eight to seven, we certainly understand that the court sua sponte has the discretion. . . ." (Id. at 44:1-5.) The trial judge stated he exercised that discretion, and this decision was made before the parties were provided the opportunity to exercise preemptory challenges. (Compare Trial Tr. vol. 1, 39:23-40:18, with Trial Tr. vol. 1, 68:14.) Defendants have not shown this reduction is a basis for a new trial. See Fed. R. Civ. P. 48(a) (affording the trial judge the discretion to empanel between six and twelve jurors); Montiel v. City of L.A., 2 F.3d 335, 338 (9th Cir. 1993) ("[Rule 48] clearly states that a district court may empanel between six and twelve jurors. . . . Accordingly, the district court committed no error in seating a twelve-person jury.").
C. Reference to Rule 404(b) Evidence in Opening Statement
Defendants argue they are entitled to a new trial because the trial judge erred in refusing to allow Defendants to reference evidence in their opening statement, concerning text messages about a dispute Reese allegedly had with his apartment complex neighbors before the deputy sheriff officers arrived at the apartment complex, to which Reese objected. (New Trial Mot. 5:5-6.) However, the trial transcript evinces that Defendants referenced this disputed evidence in their opening statement by stating: "Now, in [P]laintiff's opening argument, counsel said that [Plaintiff] believed [P]laintiff didn't know who was at the door[; w]e believe there is evidence to the contrary." (Trial Tr. vol. 1, 95:15-18.) Although the trial transcript reveals Defendants desired to include more factual information in their opening statement, Reese objected, arguing at sidebar that information concerning "a dispute between the plaintiff and a neighbor before the police ever got there" involves extrinsic details unknown to the deputies before they contacted Reese. (Trial Tr. vol. 1, 82:23-83:1.) Defendants responded:
[Defense Counsel]: . . . Our position would be this was a subject of [P]laintiff's motion in limine that the [C]ourt denied, and because the evidence may be what it is, I think we're entitled to at least argue what the evidence may show.
We believe that information related to what happened prior to the officer showing up goes to [P]laintiff's state of mind, his motive, opportunity, essentially the way he opened the door. Because of that, we believe it is all relevant, at the very least, to the damages.
I think this is an effort to essentially re-argue the motion in limine that was denied.
(Id. at 83:13-24.)
This dispute concerned the admissibility of Rule 404(b) evidence; however, Defendants' argument did not articulate clearly how the disputed Rule 404(b) evidence tended to establish Reese's "state of mind," what was meant by the "motive" and "opportunity" propositions, and how these propositions were probative on what Defendants argued was "essentially the way [Reese] opened the door." These conclusory assertions failed to satisfy Defendants' burden under Rule 404(b) of clearly articulating a purpose for which the evidence was admissible.2
Further, during trial Defendants elicited testimony, when cross-examining Reese, about the argument Reese had with his neighbors and the text messages Reese and his neighbors exchanged before the deputy officers' arrival. (See Trial Tr. vol. 2, 342:20-355:12 ("Q. Did you and Nathan, after Brittany left without the bottle, exchange heated words? A. We exchanged text messages.").)
This portion of Defendants' motion reveals that Defendants misapprehended the purpose of an opening statement, and their burden of identifying the specific purpose for which Rule 404(b) evidence is offered so that it could be determined whether the identified purpose is material to an issue in the case, and also whether it should be admitted in light of Rule 403 considerations. "The opening statement is not evidence in itself, but serves `to give the jury the broad outlines of the case to enable the jury to comprehend it.'" United States v. De Peri, 778 F.2d 963, 978 (3rd Cir. 1985) (quoting Gov't of Virgin Is. v. Turner, 409 F.2d 102, 103 (3d Cir. 1968)). Defendants have not shown that they were prejudiced by the trial judge's refusal to permit Defendants to detail the disputed Rule 404(b) evidence in their opening statement. Therefore, the motion for a new trial on this ground is denied.
D. Failure to Give Requested Bane Act Instruction
Defendants argue they are entitled to a new trial on Reese's state claim alleged under the Bane Act, contending that the Court erred in failing to give their proposed California Civil Jury Instruction (CACI) 3066, and the instruction given equates a factual and legal finding of Fourth amendment excessive force liability with liability under Reese's Bane Act claim. (New Trial Mot. 10:4-5.)
Consideration of the facts involved with Reese's Bane Act claim reveals Defendants are correct in their argument that in this case their proposed instruction should have been given. Regarding the facts involved in the instant lawsuit California Appellate Court authority reveals3: The Bane Act "requires a showing of coercion independent from the coercion inherent in the [constitutional violation] itself." Shoyoye v. Cty. of L.A., 203 Cal.App.4th 947, 959 (2012). The trial evidence in this case does not support this Bane Act element. Although no California Appellate Court decision addresses whether excessive force alone— "the use of excessive force during an otherwise lawful arrest," Bender v. County of Los Angeles, 217 Cal.App.4th 968, 978 (2013)—is sufficient to sustain a Bane Act violation, several decisions indicate more is required. See Shoyoye, 203 Cal. App. 4th at 955-56 ("The essence of a Bane Act claim is that the defendant, by the specified improper means (i.e., `threats, intimidation or coercion'), tried to or did prevent the plaintiff from doing something he . . . had the right to do under the law or to force the plaintiff to do something that he . . . was not required to do under the law." (quoting Jones v. Kmart Corp., 17 Cal.App.4th 329, 339 (1998))); Venegas v. Cty. of L.A., 32 Cal.App.4th 820, 842-43 (2004) (stating that although the benefits of the Bane Act are not restricted to actual or perceived members of a protected class, "its provisions are limited to threats, intimidation, or coercion that interfere[] with a constitutional or statutory right").
Therefore, the jury instruction as given did not comport with the plain language in the Bane Act which requires that in this case Reese demonstrate "threat, intimidation, or coercion" beyond the shooting itself. See Cal. Civ. Code § 52.1; see also Lanier v. City of Fresno, No. CV F 10-1120 LJO SKO, 2011 WL 149802, at *5 (E.D. Cal. 2011) ("[A]llegations of excessive force do not equate to section 52.1 threats, intimidation or coercion."); Justin v. City and Cty. of S.F., No. C05-4812 MEJ, 2008 WL 1990819, at *9 (N.D. Cal. 2008) ("Section 52.1 is only applicable when a defendant intends by his or her conduct to interfere with a separate affirmative right enjoyed by a plaintiff; it does not apply to plaintiff's allegation of use of excessive force absent a showing that the act was done to interfere with a separate state or federal constitutional right.").
Since liability under the Bane Act has been fully briefed and the evidentiary record concerning this claim is complete, instead of granting a new trial an amended judgment will issue in favor of Defendants on this claim. See generally, Portsmouth Square, Inc. v. S'holders Prot. Comm., 770 F.2d 866, 869-70 (9th Cir. 1985) ("Under certain limited circumstances a district court may issue summary judgment [sua sponte] . . . [such as when] it appears from all the evidence presented that there is no genuine issue of material fact and [a] party is entitled to judgment as a matter of law."); Nozzi v. Hous. Auth. of City of L.A., 806 F.3d 1178, 1199-200 (9th Cir. 2015) (consistent with Fed. R. Civ. P. 56, granting summary judgment sua sponte is appropriate to "preserve[] judicial resources by preventing courts from having to preside over unnecessary trials where no genuine issues of fact are in dispute" (internal quotation marks and citations omitted)).
E. Court's Denial of Defendants' Motion in Limine Number 6: Testimony of Clark
Further, Defendants contend the Court's denial of their Motion in Limine (MIL) Number 6 entitles them to a new trial because the ruling constitutes prejudicial error. (New Trial Mot. 11:12-24.) Reese counters "Defendants do not actually cite any evidence in making their argument about [MIL Number 6; m]oreover, after the [C]ourt conditionally denied the motion in limine for insufficient factual content, Defendants never sought to re-raise the issue at a subsequent time." (New Trial Opp'n 17:6-9.) Reese contends: "On [this] basis alone, the argument should be rejected." (Id. at 17:9-10.)
Defendants moved in MIL Number 6 to exclude Reese's police practices "expert" Roger Clark from offering specific opinions at trial. (Defs.' Mot. in Limine No. 6 2:2-6, ECF No. 88.) Defendants contend, inter alia, that based upon his Rule 26 report Clark's testimony would constitute an impermissible opinion as to his legal conclusion, i.e., an opinion on an ultimate issue of law. (Id. at 4:1-5.)
The challenged order denying MIL Number 6 states in pertinent part: "[s]ince it is unclear what questions Mr. Clark will be asked and whether any response could be challenged, a sufficient factual context is lacking to decide before trial the remaining portions of this motion." (Order Addressing Defs.' MIL 11:7-10, ECF No. 144.) Since it is evident that the challenged in limine ruling does not constitute a definitive ruling, Defendants have not shown they have authority justifying their motion. "Absent a thorough examination of the objection raised in the motion in limine and an explicit and definitive ruling by the district court that the evidence is [or is not] admissible, a party" cannot challenge the in limine ruling and is required to make a "contemporaneous objection" during the trial concerning proffered evidence it deems inadmissible. United States v. Archdale, 229 F.3d 861, 864 (9th Cir. 2000); cf. United States v. Lui, 941 F.2d 844, 846 (9th Cir. 1991) (citing Palmerin, 794 F.2d at 1413) (finding a motion in limine preserves an evidentiary issue . . . if "the district court's ruling permitting introduction of evidence was explicit and definitive"). Therefore, Defendants have not shown that the challenged ruling justifies granting them a new trial.
F. Evidentiary Rulings
Defendants also contend they are entitled to a new trial because "[t]here were a significant number of [evidentiary] ruling[s] that, individually and collectively, created prejudice to Defendants." (New Trial Mot. 11:28.) Reese counters: "even assuming, arguendo, that any of [the challenged evidentiary rulings] were incorrect, it is clear that the rulings were neither individually nor collectively prejudicial such that the trial result was `inconsistent with substantial justice' or a `miscarriage of justice.'" (New Trial Opp'n 18:15-18.)
Rule 61 of the Federal Rules of Civil Procedure prescribes:
Unless justice requires otherwise, no error in admitting or excluding evidence—or any other error by the court or a party—is ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order. At every stage of the proceeding, the court must disregard all errors and defect that do not affect any party's substantial rights.
Fed. R. Civ. P. 61.
1. Questions on Phone Call to Reese Before Opening the Door
Defendants contend that it was error to permit Reese's attorney to ask Deputy Brown to speculate about the benefit of placing a phone call to Reese before appearing at Reese's apartment. Specifically, Defendants object to the following testimony:
Q. Okay. Based on your training and experience, if you placed a phone call, would you tell the person who you were, meaning the police?
MR. WHITEFLEET: Objection. Incomplete hypothetical. Calls for speculation.
THE COURT: Overruled.
[OFFICER BROWN] I see no harm doing that.
BY MR. GALIPO:
Q. And what would be the benefit, in your mind, of doing that, letting them know that you were the police.
MR. WHITEFLEET: Objection. The officer has not been identified as an expert witness and now we're talking about a hypothetical benefit to a potential thing that didn't occur?
THE COURT: Overruled.
THE WITNESS: I'm sorry. Reask the question.
BY MR. GALIPO:
Q. What, based on your training, would have been the benefit to letting the person in the apartment know if you called that you were the police?
MR. WHITEFLEET: Same objections.
THE COURT: I've already ruled.
MR. WHITEFLEET: I'm sorry?
THE COURT: I've ruled.
THE WITNESS: To gain voluntary compliance to answer my questions and come out.
(Trial Tr. vol. 1, 102:10-103:1.)
Defendants contend:
This ruling was an error. It was complete speculation whether there would be a benefit and/or such clearly calls for an expert opinion. The substantial prejudice is that . . . now the jury is left with the impression that Deputy Rose (or other officers) could have avoided the use of force by calling Plaintiff, when the testimony was [that] they tried to have dispatch locate a number without success. To have the witness speak to "what could happen" has no relevance because there was no number to call, no knowing if Plaintiff would answer, and no knowing whether he would have voluntarily answered questions.
(New Trial Mot. 12:14-20.)
Similarly, Defendants contend that the following question posed to Reese's purported police expert, Clark, should not have been permitted:
Q. Let's assume that they did and were able to call in and tell them they were the police and they wanted to talk to him. You would say that would be appropriate?
MR. WHITEFLEET: Objection. Assumes facts not in evidence. Incomplete hypothetical. Irrelevant.
THE COURT: Overruled.
(Trial Tr. vol. 3, 458:19-24.) Defendants contend: "This question, together with questions to Deputy Brown, are irrelevant to whether force used after [P]laintiff opened the door was reasonable[; t]his left improper impression that some pre-shooting decisions were at issue." (New Trial Mot. 12:25-27.)
Reese counters:
The objections [to Deputy Brown's testimony] were properly overruled and Deputy Brown gave an admissible lay opinion that was explicitly based on his own training and experience. In any event, there could be no prejudice because the jury learned that Deputy Brown did, in fact, try to obtain a phone number to make a phone call to [P]laintiff's apartment, but no number was available. Thus, contrary to Defendants' argument, the jury was not `left with the impression that Deputy Rose (or other officers) could have avoided the use of force by calling Plaintiff" because the jury heard the deputies tried to have dispatch locate a number without success.
(New Trial Opp'n 19:11-19 (citations omitted).)
Defendants have not shown that this evidentiary ruling affected Defendants' "substantial rights" justifying a new trial. Fed. R. Civ. P. 61.
2. Questions to Clark: Whether Police Should Have Announced Their Presence, and Whether It Was Appropriate for Rose to Shoot?
Defendants further object to the Court's allowance of questions to Clark about the feasibility of announcing police presence. Specifically, Defendants object to the following testimony:
A. That he would clear out of the range of the door with the expectation because that was the purpose of the knock, that there would be an answer, and, therefore, he would remove himself out of the — what we call the danger zone, because there is no safety in that immediate area of the door.
MR. WHITEFLEET: Objection. Move to strike as speculative. Nonresponsive.
THE COURT: Overruled.
(Trial Tr. vol. 3, 460:13-20.) Reese counters:
Evidence about the feasibility of warnings is relevant to the totality of circumstances. See Graham v. Connor, 490 U.S. at 397; Deorle v. Rutherford, 272 F.3d 1272, 1274 (9th Cir. 2001) ("[T]he giving of a warning or the failure to do so is another factor to be considered in applying the Graham balancing test.") In fact, Defendants likewise elicited testimony and argued about the feasibility of warnings/announcement.
(New Trial Opp'n 19:22-27.)
Defendants have not shown that the challenged evidentiary ruling justifies granting a new trial.
Defendants also object to Reese's hypothetical questions to Clark regarding Rose's decision to shoot. Specifically, they object to the following line of questioning:
Q. And so taking from Deputy Rose's perspective, he sees a knife, he backs up, then he moves forward and sees an unarmed person standing in the doorway, is that a shoot or don't shoot scenario?
MR. WHITEFLEET: Incomplete hypothetical. Vague. Overly broad. Seeks to invade the jury.
THE COURT: Overruled.
[CLARK]: It's a don't shoot scenario.
(Trial Tr. vol. 3, 541:16-23.) Defendants contend: "This was tantamount to telling the jury it was unreasonable to shoot. This improperly invaded the jury's purview." (New Trial Mot. 13:10-11.)
Reese counters:
The reasonableness of the decision to shoot was a proper subject for expert testimony. See Fed. R. Evid. 704(a) ("An opinion is not objectionable just because it embraces the ultimate issue.") Defendants in fact asked the same or similar questions of their expert, Massad Ayoob. Moreover, the hypotheticals asked of Roger Clark were not "incomplete"; they were based on facts in evidence because there was evidence that Plaintiff's hands were visible empty when Deputy Rose shot him.
(New Trial Opp'n 20:2-9.)
Defendants have not shown that the challenged evidentiary ruling justifies granting a new trial.
3. Testimony of Tracy
Defendants contend that Detective Robert Tracy, a Sacramento County Sherriff's Department Homicide Detective, should have "been able to testify about the observations" he made of the shooting scene. (New Trial Mot. 13:23-24.) Specifically, Defendants point to the following testimony:
BY MR. WHITEFLEET:
Q. Did you make any observations in terms of this particular picture, Exhibit 31, in connection with any other defects that you noted at the apartment?
MR. GALIPO: Objection. Vague as phrased. May call for expert testimony.
THE COURT: Sustained.
BY MR. WHITEFLEET:
Q. In your mind did you associate this defect with any other defect inside this apartment?
MR. GALIPO: Objection. May call for expert testimony and vague as phrased.
THE COURT: Sustained.
(Trial Tr. vol. 4, 631:7-19.)
Q. And did you make any observations in terms of directionality in connection with the other defect as it's shown on Exhibit 31?
MR. GALIPO: Objection. Lacks foundation. May call for expert testimony. Also vague as phrased.
THE COURT: Sustained.
MR. WHITEFLEET: May we have a sidebar, Your Honor, in terms of the objections that are being raised for the expert versus observations?
THE COURT: No.
(Id. at 632:7-16.)
Defendants argue, concerning the above evidentiary rulings: "A witness who makes observations on the scene is a percipient witness[; h]e should have been able to testify about the observations." (New Trial Mot. 13:23-24.) Reese counters:
Defendants make a false claim that Detective Tracy was precluded from testifying about his observations regarding Exhibit 31, a close-up photograph of a portion of Reese's carpet where a bullet struck after exiting Reese and before ricocheting and coming to rest in the closet door. Contrary to [D]efendants' assertion, detective Tracy was permitted to testify fully about his observations within the apartment, including (1) that the carpet had been torn by a bullet, which appeared consistent with and similar to other roicocheted bullet strikes he had observed on other occasions, (2) the distance between the two tears in the carpet inferentially associated with the ricocheting bullet and (3) that there were carpet fibers on the 9 mm pistol round (fired by Deputy Rose) that was lodged in the door. Detective Tracy was not designated as an expert; he testified as a lay witness. Thus, the Court properly allowed him to testify about all of his observations and properly precluded him from giving expert-type testimony about bullet trajectories.
(New Trial Opp'n 20:11-24 (citations omitted).)
Defendants have not shown that the challenged evidentiary rulings justify granting a new trial.
4. Objections to Testimony of Ayoob
Defendants next object to Reese's questioning of Massad Ayoob, Defendants' "expert witness in police practices;" specifically Defendants object to the following portion of the evidentiary record:
Q. And one of the benefits [of police announcing their presence is] that if [the suspect] had a weapon in their hand, they could drop it before opening the door if they knew it was the police?
MR. WHITEFLEET: Objection. Calls for speculation.
THE COURT: Overruled.
[Ayoob]: Repeat the question, Mr. Galipo.
BY MR. GALIPO:
Q. Yes. One of the benefits to the citizen would be if they had a weapon in their hand, not knowing who it was, and they heard it was the police, that would give them an opportunity to drop the weapon before they opened the door to the police?
A. It would.
(Trial Tr. vol. 4, 710:2-14.)
Defendants fail to explain why they opine the Court's ruling was erroneous and how it prejudiced them. Accordingly, this argument fails to justify a new trial.
Defendants also object to the following portion of the trial record concerning Ayoob's testimony:
Q. Would you agree, sir, under the facts of this case, Deputy Rose could see Mr. Reese's hands and he had nothing in his hands; can you assume that for a moment?
MR. WHITEFLEET: Objection. Compound. Vague as to time.
BY MR. GALIPO:
Q. Just before he shot. Do you have that in mind?
A. That he could see or did see?
Q. Did see.
A. We're assuming he does see empty hands?
Q. Correct. Would you at least agree then it would be inappropriate to shoot?
MR. WHITEFLEET: I'll object. There's no testimony that Deputy Rose saw empty hands. It's an incomplete hypothetical.
THE COURT: The jury decides whether there's evidence in the record to support any question asked by either side. The objection is overruled.
[Ayoob]: If the individual is no longer assaulting the officer had seen that the hands are empty, the officer would have no grounds to shoot.
(Id. at 718:9-719:5.)
Q. Let's say, under my hypothetical, he opens the door and sees the police and drops the knife immediately. Let's say within half a second of opening the door, he drops the knife. Are you with me?
A. I am.
Q. Is it okay to shoot him?
MR. WHITEFLEET: Incomplete hypothetical. Vague.
THE COURT: Overruled.
THE WITNESS: If the officers have seen him drop the knife and he's standing in the position you describe which is essentially the surrender position with his hands shoulder high, no, it certainly would not be appropriate to shoot. That would be indication of surrender.
(Id. at 724:16-725:3.)
Defendants contend this questioning was premised on improper hypothetical questions and the rulings therein constitute reversible error because "[h]ypothetical [questions] must be based on facts in evidence[; n]o evidence shows that Rose could see Reese's hands[; i]n fact [the] jury found he did not see his hands." (New Trial Mot. 14:8-9.) Defendants further contend "there was no evidence Plaintiff opens the door and drops the knife immediately." (Id. at 14:13-14.)
The jury ultimately determined that "[a]t the time Deputy Rose fired his shot, he did [not] see Plaintiff's hands." (Verdict Form Question No. 13.) Defendants have not shown they were prejudiced by the challenged rulings; therefore, this argument does not justify granting a new trial.
5. Admission of Photographs of Reese
Counsel for Reese offered Exhibits 42, 43, 44, 45, and 46, which are photographs of Reese taken at the hospital after he sustained his gunshot wound. Defense counsel objected to these exhibits as cumulative and unduly prejudicial. The Court overruled Defendants' objection and admitted all of the photos. (Trial Tr. vol. 2, 256:2-5.) Counsel for Reese also offered Exhibit 30, which is a pile of Reese's clothes post-shooting. (Id. at 265:4-10.) Defendants objected to this evidence as irrelevant but the Court admitted the exhibit.
Reese counters:
Plaintiff's damages in this case are based on the fact that he was shot by Defendant Rose. At trial, Plaintiff used photographs showing his injuries to establish his damages. . . . The photographs were relevant because they bore on the question of damages.
(New Trial Opp'n 20:27-30.)
Defendants have not shown that the admission of the challenged evidence was so unduly prejudicial that it justifies a new trial. See, e.g., Robert v. Conti Carriers & Terminals, Inc., 692 F.2d 22, 25 (5th Cir. 1982) (affirming district court's admission of photographs showing the medical condition of plaintiff's hands, which were probative and not unfairly prejudicial with respect to damages on plaintiff's negligence claim).
6. Availability of Brittany Shurtleff
Defendants argue they should be granted a new trial because they were not allowed to read portions of Brittany Shurtleff's deposition testimony into evidence under Federal Rule of Evidence 804(a)(5), which concerns the unavailability of witnesses, despite having served a subpoena on Shurtleff and despite her failure to appear.
To be "unavailable" under Federal Rule of Evidence 804(a)(5), the party seeking to use the witness's prior testimony must show efforts to secure the witness's attendance "by process or other reasonable means." Simply serving a subpoena is not enough. See Forbes v. Cty. of Orange, 633 F. App'x 417, 418 (9th Cir. 2016) (holding the trial court did not abuse its discretion in refusing to admit witness's deposition testimony even though party seeking to introduce testimony had served a subpoena, as party did not make subsequent "reasonably diligent efforts" to secure witness's attendance).
When attempting to introduce the witness's deposition testimony at trial, the following exchange between defense counsel and the Court ensued:
MR. WHITEFLEET: I have proof of service of subpoena on Ms. Shurtleff, if the court would like to see it in order to determine unavailability. I can at least verbally indicate to you that when the processor server told us he handed the subpoena to Ms. Shurtleff, she indicated with some expletives that she did not intend to comply.
THE COURT: When did that occur?
MR. WHITEFLEET: At the time of service.
THE COURT: That's helpful; however, what hour and day did that occur?
MR. WHITEFLEET: October 22, 2015. If the court would like to see the proof of service, I can provide that.
THE COURT: I'm thinking that's a couple weeks ago; is that about right? Isn't this November 3rd?
MR. WHITEFLEET: Yes, Your Honor. The start of the trial was supposed to be October 26. That was four days before the original date set.
(Trial Tr. vol. 4, 732:2-18.)
Defense counsel admitted he was aware that the witness had no intention of appearing in court, but failed to make additional reasonable efforts within the weeks before trial to ensure Shurtleff's appearance in court. Therefore, Defendants did not make the required "reasonably diligent efforts" to secure Shurtleff's attendance to justify finding her unavailable under Federal Rule of Evidence 804(a)(5). Thus, Defendants have not shown this ruling constitutes an error justifying a new trial.
IV. CONCLUSION
For the above stated reasons the renewed Motion for Judgment is GRANTED on Defendant Rose's qualified immunity defense, and DENIED on the remaining issues. Reese's past medical expenses and the damages award is reduced by $21,175.00; therefore, Reese's total award for past medical expenses is $13,165.00. Further, judgment is amended to reflect that Defendants prevail on Reese's Bane Act claim. The remaining portions of Defendants' Motion for New Trial are DENIED.
The Clerk of Court shall amend judgment as follows:
Judgment is entered in favor of Defendant Rose on Plaintiff's Fourth Amendment claim since Rose prevails on his qualified immunity defense. Judgment is entered in favor of Defendants on Plaintiff's Bane Act claim. Judgment is entered against Defendant Rose and Defendant County of Sacramento on Plaintiff's battery claim. Plaintiff is awarded $350,000.00 for past non-economic loss, $150,000.00 for future non-economic loss, and $13,165.00 for past medical expenses for a total of $513,165.00 in compensatory damages.
