ANTHONY W. ISHII, Chief District Judge.
Plaintiff Robert Morris (hereinafter referred to as "Plaintiff") and defendant Officer Christopher Long (hereinafter referred to as "Defendant") have filed competing motions in limine. For reasons discussed below, the motions shall be granted in part and denied in part.
The Court refers the parties to previous orders for a complete chronology of the proceedings. On January 11, 2012, Plaintiff filed his ninth amended complaint, asserting one cause of action against Defendant for federal civil rights violations (in particular, excessive force in violation of the Fourth Amendment right to be free of unreasonable searches and seizures) pursuant to 42 U.S.C. § 1983. In the ninth amended complaint, Plaintiff alleged as follows:
On April 13, 2012, the parties filed initial motions in limine. The parties filed further motions in limine on July 8, 2012 and oppositions and replies on July 23, 2012 and July 30, 2012, respectively.
Motions in limine may be "made before or during trial, to exclude anticipated prejudicial evidence before the evidence is actually offered." Luce v. U.S., 469 U.S. 38, 40 n. 2, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). "Although the Federal Rules of Evidence do not explicitly authorize in limine rulings, the practice has developed pursuant to the district court's inherent authority to manage the course of trials." Id. at 41 n. 4. Under Federal Rule of Evidence 403, "[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time or needlessly presenting cumulative evidence." Fed. R. Evid. 403. "Evidence is relevant if [¶] (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and [¶] (b) the fact is of consequence in determining the action." Fed. R. Evid. 401.
In opposition, Defendant contends Rule 26 does not require the disclosure of witnesses or evidence where they would be used solely for impeachment purposes. Rule 26 provides in pertinent part, "[A] party must, without awaiting a discovery request, provide to the other parties: [¶] (i) the name and, if known, the address and telephone number of each individual likely to have discoverable information — along with the subjects of that information — that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment; [¶] (ii) a copy — or a description by category and location — of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment[.]" Fed. R. Civ. P. 26(A). To the extent Defendant intends for his argument here to be construed as a representation he intends to use the witnesses and evidence at issue solely for impeachment purposes, the Court would agree Defendant's failure to disclose them would not preclude their admissibility/ability to testify. To the extent Defendant does not so intend, the Court, having reviewed the pleadings of record and all competent and admissible evidence submitted, would find as follows:
• defense witness nos. 19 and 20 may be permitted to testify;
• defense witness nos. 18 and 21-56 are precluded from testifying;
• defense exhibit nos. 20-23, 27 and 29 are admissible;
• defense exhibit nos. 24 and 28 are inadmissible.
The Court shall leave it to Defendant to clarify at the hearing how he intends to proceed, and shall rule accordingly. Thus, ruling on Plaintiff's motion in limine #1 remains RESERVED.
Plaintiff did not, however, identify any evidence to exclude pursuant to the foregoing authority. Instead, Plaintiff simply sought to prevent Defendant from introducing evidence to prove or controvert certain portions of the reasonableness inquiry, which the Court concluded was not a proper motion in limine but rather a request for an evidentiary sanction. Therefore, the Court denied the motion. Plaintiff now renews the motion "to specify that all of the character evidence outlined. . . in motion in limine [#] 2 should be excluded pursuant to this motion, since it is uncontroverted that the defendant had no prior knowledge of the defendant [sic; Plaintiff?] or his history at the time force was used." Problematically for Plaintiff, the Court has already ruled that the evidence specified in Plaintiff's motion in limine #2 is relevant and admissible for the (non-character based) purpose of contesting Plaintiff's claimed economic and emotional distress damages. To the extent Plaintiff intends to suggest the evidence should not be used by Defendant to impeach Plaintiff's character, Plaintiff would at most be entitled to request an instruction limiting the use of the evidence; Plaintiff would not be entitled to a blanket exclusion. Accordingly, motion in limine #4 remains DENIED.
In opposition, Defendant represents to the Court these witnesses are not training personnel but percipient witnesses to Defendant's interactions with Plaintiff and/or the investigation of Plaintiff's allegations against Defendant, and that they will testify as fact witnesses "regarding the policies and procedures in effect at the time of the subject incident and the training that is provided to City of Fresno police officers." The Court agrees these witnesses may testify as fact witnesses based on their personal knowledge of the Fresno Police Department's policies, procedures and training methods, so long as Defendant does not attempt to elicit expert- or lay opinion-type testimony from them on the foregoing issues under Federal Rules of Evidence 701 and 702. Based on Defendant's representations, ruling on motion in limine #7 shall remain RESERVED.
Plaintiff now contends the request cannot constitute an evidentiary sanction because Defendant has conceded, in written discovery responses and at a deposition, that he had no knowledge of Plaintiff's record prior to the subject incident. From this, Plaintiff — citing Glenn v. Washington County, 673 F.3d 864, 872-74, 873 n.3 (9th Cir. 2011), a case the Court first brought to the parties' attention in its April 27, 2012 order — contends evidence of which Defendant was unaware cannot be considered in determining whether Defendant's actions were reasonable. The Court does not necessarily disagree with this proposition. Problematically for Plaintiff, evidence of his prior record is subsumed within two categories of evidence addressed in his motion in limine #2 above — (i) prior arrests unrelated to the subject incident and (ii) confrontations with police officers unrelated to the subject incident — the Court already concluded was relevant and admissible on the issues of economic and emotional distress damages. Thus, Plaintiff is not entitled to exclude such evidence. At most, Plaintiff would be entitled to request an instruction limiting the use of such evidence to calculation of damages. Accordingly, Plaintiff's motion in limine #10 remains DENIED.
Accordingly, the Court granted the motion. Plaintiff does not request any further relief as to this motion. Defendant moves for reconsideration, but provides no compelling reason why the Court should reconsider its previous ruling. Accordingly, motion in limine #12 remains GRANTED.
Plaintiff's motion is clearly designed to avert an "empty chair" defense. Problematically for Plaintiff, Defendant is entitled to present an empty chair defense, and such strategy might involve references to parties and/or claims that have been dismissed. Kunz v. DeFelice, 538 F.3d 667 (7th Cir. 2008) is instructive on this issue. After spending the afternoon and evening of March 22, 1999 at a bar watching March Madness and drinking beer, Jeremy Kunz borrowed the SUV of an acquaintance, Erik, and left the bar to run an errand delivering drugs. Kunz failed to pull over after grazing a parked car, prompting a 911 call from a witness. Id. at 670. Officer Richard DeFelice and his partner responded. DeFelice discovered, after running the SUV's plates, that the vehicle had been reported stolen. Kunz finally stopped the SUV after a low-speed car chase and tried to discard packets of drugs while fleeing on foot, and was arrested as he tried to scale a chain-link fence. As he was being handcuffed, multiple officers kicked Kunz, causing a sharp pain eventually diagnosed as a broken rib. The officers dragged Kunz back to the squad car and took him to the station, where they placed him a holding room. There, DeFelice repeatedly punched Kunz in the face, causing him to lose consciousness several times, until Kunz confessed he knew the SUV was stolen. Another officer who witnessed the exchange typed out the confession. Kunz was then photographed and taken to lock-up. Although he complained of injuries, he was not treated at a hospital until the next day, when he was given an over-the-counter painkiller and, later, prescribed Motrin. Id. at 671.
Kunz sued DeFelice, the City of Chicago and other individual defendants for excessive force and failure to provide medical treatment under 42 U.S.C. § 1983. Kunz, supra, 538 F.3d at 671. The jury returned a verdict in favor of Kunz, finding DeFelice liable for $10,000 in compensatory damages and $250,000 in punitive damages. Id. at 672. Shortly before trial, Kunz had voluntarily dismissed without prejudice all defendants except the city and DeFelice. On appeal, DeFelice asserted the trial court committed reversible error by permitting Kunz to dismiss all other defendants, contending their absence at trial prejudiced him by leading the jury to impose the full weight of the punitive damages award on him alone. Id. at 677. In rejecting this argument, the court implicitly held DeFelice had a right to ascribe fault to other alleged tortfeasors who were no longer parties to the action: "DeFelice does not come close to showing reversible error here. The assertion that his defense was hampered by creating too many empty chairs at the defense table seems backward: far from preventing him from `deflecting' liability onto others, as he phrases it, it permitted him to point at those empty chairs and question how much of the harm he was responsible for. Unlike codefendants, empty chairs do not talk back. DeFelice questioned Kunz about the dismissals at trial, and so the jury was well aware that DeFelice was not the only officer involved." Id. at 678. Like DeFelice, Defendant may refer to dismissed parties and/or claims in attributing fault to empty chairs.
Nevertheless, Defendant represents to the Court in his reply that he would not be opposed to "excluding reference to the fact that parties and claims were previously dismissed [ ] on the condition that Plaintiff be equally precluded from presenting evidence and/or testimony relating to any of the dismissed parties having been parties in this action or to any of the dismissed claims." Based on Defendant's representations, Plaintiff's motion in limine #13 shall be GRANTED.
Accordingly, Plaintiff's motion in limine #14 remains DENIED.
Having reviewed the pleadings of record and all competent and admissible evidence submitted, the Court finds there was proper supplementation of medical discovery by Plaintiff pursuant to Federal Rule of Civil Procedure 26, even if it occurred after the close of global discovery. Accordingly, Defendant's motion in limine #6 shall be DENIED. However, given the Court has already reopened discovery and continued the trial date once at Plaintiff's request, the Court would not be averse to considering a similar request by Defendant pursuant to this ruling.
Plaintiff provides no compelling argument or evidence to show how the testimony at issue could conceivably establish "intent, motive, absence of accident and [ ] explain [his] damages," as he claims, and the assertion that he intends to use the testimony for such purposes is belied by the language of his arguments (i.e., the testimony will show Defendant "responds to . . . verbal opposition with physical force" and "act[s] aggressively . . . in response to . . . conduct challenging or criticizing him" (emphasis added)), which reveals his intent to use the testimony as habit evidence. "Habit `describes one's regular response to a repeated specific situation.' Fed. R. Evid. 406 advisory committee note (describing conduct that qualifies as habit as `semi-automatic')." U.S. v. Angwin, 271 F.3d 786, 799 (9th Cir. 2001) (overruled on other ground as stated in U.S. v. Lopez, 484 F.3d 1186, 1210-11 (9th Cir. 2007) (en banc)). "Evidence of a person's habit . . . may be admitted to prove that on a particular occasion the person . . . acted in accordance with the habit or routine practice." Fed. R. Evid. 406. "The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness." Id. "A district court's ruling on whether proffered evidence qualifies as habit evidence under Federal Rule of Evidence 406 is highly fact specific. . . . [¶] . . . In deciding whether certain conduct constitutes habit, courts consider three factors: (1) the degree to which the conduct is reflexive or semi-automatic as opposed to volitional; (2) the specificity or particularity of the conduct; and (3) the regularity or numerosity of the examples of the conduct." Angwin, supra, 271 F.3d at 798-99 (citing Weil v. Seltzer, 873 F.2d 1453, 1460 (D.C. Cir. 1989); Simplex, Inc. v. Diversified Energy Sys., Inc., 847 F.2d 1290, 1293-94 (7th Cir. 1988)). "The burden of establishing that certain conduct qualifies as evidence of habit falls on the party wishing to introduce the evidence. [Citation.] Most importantly . . ., because `Rule 406 is an exception to the general exclusion of character evidence under the Federal Rules, . . . courts are somewhat cautious in admitting the evidence. [Citation.]" Angwin, supra, 271 F.3d at 799.
Here, Plaintiff has failed to meet his burden of establishing the testimony at issue qualifies as evidence of Defendant's habit. First, Plaintiff has offered no argument or evidence to suggest Defendant's interactions with Hare, Ziegenbein and Stuckey showed conduct that was reflexive or semi-automatic in nature.
Second, Plaintiff has provided no argument or evidence going to the specificity or particularity of Defendant's previous conduct. Plaintiff has adequately explained the substance of the proffered testimony, but fails to explain to any degree of satisfaction how the testimony "describe[s] [Defendant's] conduct with sufficient particularity to be probative of whether he acted in conformity with that general practice," Angwin, supra, 271 F.3d at 800, at the time of the alleged misconduct. That is, Defendant offers no compelling explanation as to how Defendant's interactions with Hare, Ziegenbein and Stuckey could constitute evidence of the same "habit" that led Defendant to "administer[ ] a control hold on [P]laintiff's left arm while blood was being drawn from his right arm," as is alleged in the complaint. Defendant's conduct during the incidents referred to by Plaintiff is simply not analogous the misconduct alleged. In the Court's view, the incidents illustrate nothing more than Defendant's general character traits, and are therefore inadmissible under Federal Rule of Evidence 404(a)(1) ("Evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait").
Third, Plaintiff has failed to show the incidents were regular or numerous enough to support a finding of habit. "It is only when the examples offered to establish such pattern of conduct or habit are `numerous enough to base an inference of systematic conduct' and to establish `one's regular response to a repeated specific situation' or, to use the language of a leading text, where they are `sufficiently regular or the circumstances sufficiently similar to outweigh the danger, if any of prejudice and confusion,' that they are admissible to establish pattern or habit. In determining whether the examples are `numerous enough' and `sufficiently regular,' the key criteria are `adequacy of sampling and uniformity of response,' or, as an article cited with approval in the Note to Rule 406 . . . puts it, on the `adequacy of sampling' and the `ratio of reactions to situations.'" Wilson v. Volkswagen of America, Inc., 561 F.2d 494, 511 (4th Cir. 1977) (internal citations, footnotes omitted); accord Mathes v. The Clipper Fleet, 774 F.2d 980, 984 (9th Cir. 1985) (agreeing with Wilson). Plaintiff has pointed to four incidents — spread out over a period of several years, no less — in which Defendant was faced with some sort of "verbal opposition" or "conduct challenging or criticizing him." However, Plaintiff has provided no evidence to show these were the only such incidents involving Defendant. Four incidents over a several-year period, without more, are insufficiently regular or numerous for a reasonable trier of fact to infer Defendant's conduct during the incidents was his habitual response to a repeated specific situation. See Thompson v. Boggs, 33 F.3d 847, 853-55 (7th Cir. 1994) ("five unsubstantiated incidents of Officer Boggs' alleged excessive force, without any evidence of the total number of contacts Officer Boggs had with citizens or the number of arrests he performed, fail to satisfy the plaintiff's burden of demonstrating that Boggs' `regular response to a repeated specific situation' was the `systematic' use of excessive force").
Plaintiff does contend evidence of Defendant's interactions with animals demonstrates an "extreme fastidiousness," and that because Plaintiff urinated in Defendant's patrol car shortly before the alleged use of force incident, evidence of Defendant's alleged fastidiousness — coupled with his hostility to "conduct challenging" him — is relevant to the issues of whether Defendant (1) had motive to use force against Plaintiff and/or (2) "injured [Plaintiff] purposely rather than accidentally," and is therefore admissible as "other acts" evidence under Federal Rule of Evidence 404(b).
"[I]ssues of motive and intent are essentially irrelevant in [an excessive force] case. The test `in an excessive force case is an objective one.' Thus, `[a]n officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer's good intentions make an objectively unreasonable use of force constitutional.'" Morgan v. City of Marmaduke, Ark., 958 F.2d 207, 212 n. 2 (8th Cir. 1992) (citing Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 1872, 104 L.Ed.2d 443 (1989)). The Court acknowledges that issues of motive and intent are potentially relevant to Plaintiff's claim for punitive damages. See Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983) ("[A] jury may be permitted to assess punitive damages in an action under § 1983 when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others"). However, the fact that Plaintiff urinated in Defendant's car (and told Defendant he would be taking Defendant to court) is itself evidence of motive and intent. Plaintiff has not satisfactorily explained how any evidence of interactions Defendant might have had with animals and third parties could conceivably demonstrate the existence of a motive for or intent by Defendant to use excessive force against Plaintiff. In the Court's view, such evidence would not demonstrate motive or intent, given these animals and third parties were not percipient witnesses to Plaintiff's arrest (or events giving rise to the alleged misconduct) and do not have any connection to this case. Under these circumstances, the contention that Defendant's aggression and extreme fastidiousness, as evidenced by his previous interactions, would help show Defendant had motive and intent to use force against Plaintiff is at worst an attempt to introduce inadmissible character evidence from factually unrelated incidents and at best an underhanded way of arguing habit. In fact, most of the "other acts" arguments stated in Plaintiff's opposition are nothing more than habit arguments in disguise. As the Court has already explained, these arguments are entirely without merit.
Even if testimony regarding the incidents at issue were somehow admissible as other acts evidence, the Court has discretion to exclude the evidence as being more prejudicial than probative under Federal Rule of Evidence 403. U.S. v. Walls, 577 F.2d 690, 696 (9th Cir. 1978). This is a case where the exercise of such discretion would be warranted. Given the lack of similarity between the circumstances surrounding Defendant's alleged misconduct and his conduct in the incidents adduced by Plaintiff, evidence of the incidents has minimal probative value. The risk of undue prejudice, on the other hand, is significant. Even assuming Plaintiff intends to use the testimony for a proper purpose, the jury could use the testimony for an improper one (e.g., viewing the testimony as evidence of character or habit). One might argue the Court could minimize this risk by giving a limiting instruction. Limiting instructions, however, are not entirety curative, even if juries are presumed to follow their instructions, U.S. v Heredia, 483 F.3d 913, 923 (9th Cir. 2007) (en banc). Furthermore, allowing Plaintiff to introduce the testimony would take up much of the trial time. Plaintiff would have to present the testimony of the witnesses one by one, and Defendant would inevitably attempt to show the manner in which the incidents played out was distinguishable from the facts at issue here. This back-and-forth between the parties would create an additional risk of misleading the jurors and distracting them from the central issues. Accordingly, the Court finds the risks of undue prejudice, consumption of time and misleading the jury support exclusion of the testimony at issue, and Defendant's motions in limine #8, #9 and #10 shall be GRANTED.
Fed. R. Civ. P. 28(a)(1); see Fed. R. Civ. P. 30(b)(5) (same requirement for oral depositions unless the parties stipulate otherwise). "A deposition must not be taken before a person who is any party's relative, employee or attorney; who is related to or employed by any party's attorney; or who is financially interested in the action." Fed. R. Civ. P. 28(c). Defendant contends — and Plaintiff concedes — the examinations at issue were taken before Plaintiff's attorney, who was neither an officer authorized to administer oaths nor a person appointed by the court. Accordingly, the examinations could not have constituted depositions as a matter of law and are therefore inadmissible. Ott v. The Stipe Law Firm, 169 F.R.D. 380, 381 (E.D. Okl. 1996).
Citing Marlboro Products Corp. v. North American Phillips Corp., 55 F.R.D. 487 (S.D.N.Y. 1972) and Sheppard v. Beerman, 822 F.Supp. 931 (E.D.N.Y. 1993), aff'd in part, vacated in part 18 F.3d 147 (2d Cir. 1994), Plaintiff contends the failure to comply with Rule 28 should nonetheless be excused and the examinations deemed admissible because "the policy informing FRCP 28(c) — to ensure impartiality in the creation of the deposition record — is inapplicable when," as here, "the deposition is tape recorded." Not so. As one district court has noted, the cases cited by Plaintiff "predate the 1993 Amendments to Rule 30. The advisory committee explained that among the amendments, paragraph 5 was revised to `require[ ] that all depositions be recorded by an officer designated or appointed under Rule 28 and to contain [ ] special provisions designed to provide basic safeguards to assure the utility and integrity of recordings taken other than stenographically.' Fed. R. Civ. P. 30, advisory committee note. The plain language of this rule is clear: absent a waiver, `a deposition must be conducted before an officer appointed or designated under Rule 28." Meacham v. Church, 2010 WL 1576711 (D.Utah 2010) (unpublished), at *4. That was not done here.
Naturally, Plaintiff contends Defendant waived the right to assert a disqualification on Rule 28(a) grounds. As to the issue of waiver, Federal Rule of Civil Procedure 32 provides in pertinent part: "An objection based on disqualification of the officer before whom a deposition is to be taken is waived if not made: [¶] (A) before the deposition begins; or [¶] (B) promptly after the basis for disqualification becomes known or, with reasonable diligence, could have been known." Fed. R. Civ. P. 32(d)(2). Plaintiff claims, "Despite having advance knowledge of how the depositions would be recorded, based both on [ ] prior depositions and on advance telephone confirmation, [ ] [D]efendant did not object until the depositions were underway." However, Plaintiff provides no evidentiary support for this statement, pointing only to arguments in his memorandum of points and authorities, which are not evidence. Defense counsel Brande L. Gustafson, on the other hand, has provided a declaration under penalty of perjury wherein she testifies: "On June 8, 2012, the date noticed for Officer Long and Sergeant Preston's deposition, Plaintiff's counsel swore in the witnesses and operated the video recorder without a court reporter and/or videographer present to record the testimony or otherwise swear in the witnesses. I was present as defense counsel Jim Weakley objected on the record to the qualifications of the `officer' (Plaintiff's counsel) administering the oath and informed Plaintiff's counsel that it was Defendant's position that what was occurring was not a deposition." The absence of corresponding evidence from Plaintiff makes this an uncontroverted issue the Court must resolve in favor of Defendant. Accordingly, the Court finds no waiver of disqualification, and Defendant's motion in limine #12 shall be GRANTED.
In Heck, the Supreme Court held that "in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness 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." Heck, supra, 512 U.S. at 486-87. "A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated." Id. at 487. The court gave the following example of a section 1983 action "that does not seek damages directly attributable to conviction or confinement but whose successful prosecution would necessarily imply that the plaintiff's criminal conviction was wrongful": "A state defendant is convicted of and sentenced for the crime of resisting arrest, defined as intentionally preventing a peace officer from effecting a lawful arrest. . . . He then brings a § 1983 action against the arresting officer, seeking damages for violation of his Fourth Amendment right to be free from unreasonable seizures. In order to prevail in this § 1983 action, he would have to negate an element of the offense of which he has been convicted. . . . [T]he § 1983 action will not lie." Id. at 487 n. 6 (emphasis original).
By contrast, successful prosecution of Plaintiff's excessive force claim would not necessarily imply the invalidity of his Vehicle Code conviction. In Yount v. City of Sacramento, 43 Cal.4th 885, 76 Cal.Rptr.3d 787, 183 P.3d 471 (2008), a case relying principally on Heck, the California Supreme Court approved of the following three-part test first proposed by the Court of Appeal to determine whether a judgment in favor of a plaintiff would necessarily imply the invalidity of his conviction: "`First, the court must determine . . . what acts or omissions may have formed the factual basis of the plaintiff's [ ] conviction. Second, the court must ascertain what alleged misconduct by the officer forms the factual basis for the civil rights claim. . . . The final step is to consider the relationship between the plaintiff's acts . . . and the officer's alleged misconduct.'" Id. at 894. Defendant contends — and Plaintiff does not dispute — that Plaintiff pleaded no contest to violating Vehicle Code sections 23103 and 23103.5.
The Court might be inclined to conclude otherwise if Plaintiff had asserted a cause of action against Defendant sounding, for instance, in false arrest/false imprisonment, because in such a case the validity of Plaintiff's arrest would have been at issue. "The essential factual elements for false arrest by a peace officer without a warrant include: Plaintiff was arrested without a warrant, plaintiff suffered harm, and defendant's conduct was a substantial factor in causing the harm. [Citations.] Where it is alleged there has been arrest without process (i.e., a warrant), the burden is on the defendant to prove justification for the arrest. [Citations.]" Dunseth v. City of Santa Ana, 2005 WL 1427362 (Cal.App. 4 Dist. 2005) (unpublished), at *3.
But Plaintiff has not alleged a cause of action against Defendant for false arrest; Plaintiff has alleged a cause of action against Defendant for excessive force. "Although an excessive force claim is subject to a `reasonableness' standard under the Fourth Amendment as is a false arrest claim, the two claims require quite different inquiries. [Citation.] To evaluate an excessive force claim, [courts] consider `the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.' [Citation.] To evaluate whether the police had probable cause to make an arrest, in contrast, [courts] consider the nature and trustworthiness of the evidence of criminal conduct available to the police." Beier v. City of Lewiston, 354 F.3d 1058, 1064 (9th Cir. 2004). "Because the excessive force and false arrest factual inquiries are distinct, establishing a lack of probable cause to make an arrest does not establish an excessive force claim, and vice-versa." Id.; accord Szalabawka v. Russo, slip copy, 2011 WL 7776786 (W.D.Pa. 2011) at *13 ("[C]laims of excessive force and false arrest implicate different aspects of the Fourth Amendment's `reasonableness' requirement: the probable cause requirement concerns the justification for a seizure while the proscription against excessive force concerns the manner in which the seizure is carried out"). This is especially so here, given Defendant is alleged to have applied force not in effectuating an arrest of Plaintiff but in drawing blood from Plaintiff after Plaintiff had already been arrested.
Defendant further suggests that Plaintiff's ability to present argument or evidence to show no probable cause should be precluded by his no contest plea to violating Vehicle Code § 23103. Ordinarily, the Court would be inclined to agree. "A plea of nolo contendere (or no contest) is legally equivalent to a guilty plea[.]" People v. Mauldin, 2012 WL 2020984 (Cal.App. 5 Dist. 2012) (unpublished), at *2 (citing People v. Warburton, 7 Cal.App.3d 815, 820-21, 86 Cal.Rptr. 894 (1970) (superseded on other ground as stated in People v. Mendez, 19 Cal.4th 1084, 1093, 81 Cal.Rptr.2d 301, 969 P.2d 146 (1999)).
Officer Hamilton was on patrol in a marked car when he observed defendants Mark Allen Devaughn and his brother Timothy Lewis Devaughn running between houses. Devaughn, supra, 18 Cal.3d at 893-94. Plainclothes officers Garcia and Barbara, who were part of a burglary unit, responded to Hamilton's call for assistance, and Hamilton relayed his observation to them and gave them a physical description of the defendants. The neighborhood Hamilton was patrolling had seen numerous burglaries in recent months, but at the time, the police had no information that a specific burglary had occurred. Id. at 894. Garcia and Barbara located the defendants and questioned them individually about why they were in the area. One defendant stated they had walked to the neighborhood; the other stated they had come by car. One stated they had come to visit a friend; the other did not know the friend's name. Both defendants appeared nervous. On these circumstances the defendants were arrested and advised of their rights. Id. After the defendants were interrogated at the police station, Mark Devaughn admitted he had broken into a house and incriminated his brother. Timothy Devaughn then admitted he had committed a burglary. Id. at 895. The defendants subsequently pleaded guilty to burglary in the second degree and were convicted. Id. at 893.
On appeal the defendants contended their initial detentions and ensuing arrests were illegal. Devaughn, supra, 18 Cal.3d at 893. The California Supreme Court agreed: "It is clear that the [ ] circumstances known to the officers before they arrested defendants fail to establish probable cause to arrest either defendant for any crime. `Cause for arrest exists when the facts known to the arresting officer "would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime." [Citations.]' [Citation.] The arresting officers in the instant case had no reason to believe that any crime had been recently committed in the neighborhood. They possessed only general information that the neighborhood had been experiencing a high number of burglaries. Although they were entitled to rely on information relayed to them by Hamilton [citations] . . . and had noted inconsistencies and nervousness in the responses of defendants to police questioning, the officers had no sufficient basis in support of a belief that a crime had been committed or that defendants were engaged in criminal conduct. The illegality of the arrests is thus manifest." Id. at 895. Nevertheless, the court concluded that by virtue of the defendants' pleas, a probable cause challenge was not cognizable on appeal: "Notwithstanding the question of the legality of their arrests and the consequences which flowed therefrom, each defendant's guilty plea operated to remove such issues from consideration as a plea of guilty admits all matters essential to the conviction. [Citation.] Issues cognizable on appeal following a guilty plea are limited to issues based on `reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings' resulting in the plea. [Citations.]" Id. at 895-96 (emphasis added).
Like the Devaughns' guilty pleas, Plaintiff's no contest plea to charges arising from his arrest waived the right to assert Defendant had no probable cause to arrest him. The fact Plaintiff pleaded to a different offense (reckless driving) than the ones for which he was initially arrested and charged (driving under the influence, etc.) does not alter this conclusion. "Whether probable cause exists depends upon the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest. . . . [¶] . . . [A]n arresting officer's state of mind (except for the facts that he knows) is irrelevant to the existence of probable cause. [Citations.] That is to say, his subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause." Devenpeck v. Alford, 543 U.S. 146, 152-53, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004). Devenpeck, which has been interpreted to hold that "[b]ecause the probable cause standard is objective, probable cause supports an arrest so long as the arresting officers had probable cause to arrest the suspect for any criminal offense," Edgerly v. City of County of San Francisco, 599 F.3d 946, 954 (9th Cir. 2010) (citing Devenpeck, supra, at pp. 153-55) (emphasis added), expressly overturned Alford v. Haner, 333 F.3d 972, 976 (9th Cir. 2003), which had reaffirmed long-standing Ninth Circuit precedent that probable cause for an arrest exists only if there was probable cause to believe the suspect had committed the offense invoked by the arresting officer or a closely related offense. Under Devenpeck, Plaintiff's no contest plea effectively meant Defendant had probable cause to suspect Plaintiff had been driving recklessly, and thus had probable cause to arrest Plaintiff, even if Plaintiff happened to be arrested on different charges for which Defendant had no probable cause. As a result, Plaintiff is foreclosed from litigating probable cause on appeal. See Devaughn, supra, 18 Cal.3d at 896. Given Plaintiff is foreclosed from litigating probable cause on appeal, Plaintiff would ordinarily not be permitted to litigate probable cause in a civil action. See McKinley v. City of Mansfield, 404 F.3d 418, 428 (6th Cir. 2005) (citing Allen v. McCurry, 449 U.S. 90, 103-105, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980)) ("As a general rule, a federal civil action brought under § 1983 is not a venue for re-litigating issues that were decided in a prior state criminal case"). But the analysis does not end there. The Court observed as follows in its April 27, 2012 in limine order:
Morris v. Long, slip copy, 2012 WL 1498889 (E.D.Cal. 2012), at *9 (emphasis original). For the forced blood draw at issue here to have comported with the requirements of the Fourth Amendment, Defendant must have had probable cause to suspect Plaintiff was driving under the influence. Schmerber, supra, 384 U.S. at 769-71; see Mercer v. Department of Motor Vehicles, 53 Cal.3d 753, 760, 280 Cal.Rptr. 745, 809 P.2d 404 (1991); see also People v. Superior Court, 6 Cal.3d 757, 762, 100 Cal.Rptr. 281, 493 P.2d 1145 (1972) (Hawkins). That Defendant might have had probable cause to arrest Plaintiff for some offense is insufficient. As a matter of law, Plaintiff's no contest plea to reckless driving simply conceded Defendant had probable cause to arrest Plaintiff and to suspect Plaintiff had been driving recklessly; the plea did not concede Defendant had probable cause to arrest Plaintiff on suspicion of driving under the influence. See Turner, supra, 171 Cal.App.3d at 125-26. The issue whether Defendant had probable cause to suspect Plaintiff was driving under the influence was thus not conclusively decided by Plaintiff's plea agreement, and Plaintiff is not foreclosed from raising that issue here to show the means and procedures employed by Defendant in drawing blood contravened the mandates of Schmerber. Accordingly, Defendant's motion in limine #14 shall be DENIED. However, the extent to which probable cause may be litigated at trial shall be LIMITED to the issue of whether there was probable cause to suspect Plaintiff was driving under the influence. Both parties shall be precluded from introducing argument or evidence to show the existence or absence of probable cause for (1) an arrest or (2) to suspect Plaintiff was driving recklessly, as these are issues that, if litigated successfully to judgment for Plaintiff, would implicate a Heck bar.
Based on the foregoing, Plaintiff's motions in limine #3, 5, 6, 12 and 13 are GRANTED; Plaintiff's motions in limine #2, 4, 8, 10, 11, and 14 are DENIED; Plaintiff's motion in limine #9 is DENIED without prejudice. The Court reserves ruling on Plaintiff's motions in limine #1 and 7. (Plaintiff's motions in limine #15 and 16 are withdrawn.)
Defendant's motions in limine #7, 8, 9, 10 and 12 are GRANTED; Defendant's motions in limine #6 and #14 are DENIED. Defendant's motion in limine #11 is MOOT. (Defendant's motion in limine #13 is withdrawn.)
