KANDIS A. WESTMORE, Magistrate Judge.
The Court held a pretrial conference in this case on September 20, 2016. This order memorializes the Court's rulings, issued from the bench, on motions in limine, and objections to witnesses, deposition excerpts, discovery responses, exhibits, proposed voir dire questions, proposed jury instructions, and the proposed form of verdict.
Plaintiff moves to preclude all testimony and evidence of his prior arrests and convictions, on the ground that such evidence is irrelevant and will create a substantial danger of undue prejudice.
First, Defendants argue that they should be allowed to impeach Plaintiff's testimony that he had never been arrested for being drunk in public by relying on his two prior arrests for being drunk in public. (Defs.' Opp'n to Mots. in Limine at 3, Dkt. No. 86.) Plaintiff argues that evidence of prior arrests is irrelevant in this case.
The Court finds, however, that the evidence of the prior arrests for being drunk in public should be excluded because of the risk of unfair prejudice. The Court has discretion "to exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Fed. R. Evid. 403. Here, there is a significant risk of unfair prejudice that the jury will use the arrests for a purpose other than impeachment, such as believing Plaintiff is a bad actor or that he was more likely to be drunk when he was arrested on September 7, 2013, thus supporting Defendants' version of events. The Court finds that the risk of undue prejudice substantially outweighs the impeachment value of the prior arrests.
Second, Defendants argue that the prior arrests show that Plaintiff has "prior experience being arrested, booked and jailed, and therefore could have made up his claims of what happened in this case." (Defs.' Opp'n at 3-4; see also Defs.' Mots. in Limine at 19, Dkt. No. 69.) The Court rejects this argument. Defendants do not explain why Plaintiff's prior arrests would help him "make up" his version of the events, especially when none of the prior arrests were made by the Berkeley Police Department. Similarly, Defendants do not explain why the prior arrests would suggest that his version of the events were actually based on a prior arrest or jailing. (See Defs.' Mots. in Limine at 19.) In short, Plaintiff would have no knowledge of the Berkeley Police Department's procedures based on his prior arrests to then "make up" his version of events, and any probative value would be minimal at best.
Third, Defendants argue that Plaintiff's prior arrests and convictions are permissible to show that Plaintiff has bias and prejudice against law enforcement, thus evidencing a motive for filing the instant suit. (Defs.' Opp'n at 4; Defs.' Mots. in Limine at 19.) In support, Defendants rely on Heath v. Cast, where the Ninth Circuit found that the plaintiff's prior misdemeanor convictions were probative of the plaintiff's bias against the Newport Beach police and of his motive for bringing the action. 813 F.2d 254, 259 (9th Cir. 1987). Heath is not applicable here. As an initial matter, Heath concerned "prior misdemeanor convictions resulting from arrests made by the same police agency," whereas here every prior arrest was made by a police department other than the Berkeley Police Department. 813 F.2d at 259 (emphasis added); see also Green v. Baca, 226 F.R.D. 624, 657 (C.D. Cal. 2005) (rejecting the Los Angeles Sheriff's Department's argument that the plaintiff's prior arrests were relevant to show bias because the plaintiff was never arrested by the Los Angeles Sheriff's Department). Further, unlike in Heath, where the parties actually stipulated that Plaintiff was biased towards the officers, see 813 F.2d at 259, here there is no other evidence presented by Defendants that Plaintiff was biased towards Defendants in this case. Compare with Gallagher v. City of W. Covina, No. CV 00-377 CBM (RNB), 2002 WL 1770761, at *4 (C.D. Cal. July 29, 2002) (granting motion in limine to preclude prior convictions to show bias because there was no stipulation that the plaintiff was biased towards the same officers and there was no other evidence of bias). Because the prior arrests were not made by Defendants in this case or even the Berkeley Police Department, and because there is no other evidence of bias, the Court concludes that the prior arrests and convictions are not admissible to show bias.
Finally, Defendants argue that the prior arrests are relevant to showing that Plaintiff's emotional distress is "exaggerated." (Defs.' Opp'n to Mots. in Limine at 4; Defs.' Mots. in Limine at 19.) In Peraza v. Delameter, the Ninth Circuit found that evidence of subsequent encounters with the police and difficulties in school could be introduced for the issue of damages. 722 F.2d 1455, 1457 (9th Cir. 1984). Here, Defendants seek to introduce evidence of prior arrests. Moreover, the facts of the prior arrests are different from the instant case, where Plaintiff is not only asserting false arrest but that he was the victim of excessive force including being beaten by officers while in custody. It is therefore unclear why the prior arrests would have any probative value as to Plaintiff's emotional distress in this case. Even if there was any probative value, the probative value is minimal given the lack of similar facts between the prior arrests and the instant case, while the potential for unfair prejudice is significant as prior arrests may suggest to a jury that Plaintiff is a bad actor. Compare with Torres v. City of Santa Clara, Case No. 5:13-cv-1475-PSG, 2014 WL 4145509, at *2 (N.D. Cal. Aug. 20, 2014) (rejecting use of prior arrests to show damages calculations because case did not involve subsequent events, a lack of similar facts limited probative value of the arrest history, and the unfair prejudice from prior bad act evidence was significant).
The Court therefore GRANTS Plaintiff's first motion in limine.
Plaintiff moves to preclude Defendants' expert, Dr. Gustin, from testifying as to Plaintiff's credibility. (Plf.'s Mots. in Limine at 6.) Dr. Gustin is an emergency medicine doctor who will testify as to whether the evidence supports Plaintiff's version of events. (Defs.' Opp'n to Mots. in Limine at 4.) Plaintiff argues that while Dr. Gustin may point out inconsistencies, he should not be permitted to state that Plaintiff or any other witness is untruthful. (Plf.'s Mots. in Limine at 7.) Defendants respond that Dr. Gustin will not offer an opinion as to Plaintiff's truthfulness, but that he should be allowed to opine on contradictions between the medical records and Plaintiff's deposition testimony, and to give his opinion on the likely cause of Plaintiff's injuries. (Defs.' Opp'n to Mots. in Limine at 4-5.)
At the hearing, the Court confirmed that Defendants did not intend to ask Dr. Gustin if Plaintiff is being untruthful. Thus, the Court GRANTS Plaintiffs' second motion in limine, and will instruct Dr. Gustin not to opine as to Plaintiff's truthfulness. This does not preclude Dr. Gustin from opining on contradictions between the medical records and Plaintiff's testimony, and whether the medical records support Plaintiff's testimony.
Defendants move to prohibit Plaintiff "from introducing any evidence or testimony about the conditions of the safety cell in the Berkeley City jail." (Defs.' Mots. in Limine at 1, Dkt. No. 1.) Defendants contend that this evidence is irrelevant because Plaintiff conceded he has no claim regarding the decision to house Plaintiff in a safety cell, and that the Court granted summary judgment on the claim. (Id. at 1; MSJ Ord. at 4 n.3, Dkt. No. 59.) Further, any probative value of the safety cell's conditions will be substantially outweighed by unfair prejudice to Defendants because "neither of them was involved in the decision to place plaintiff in a safety cell," and will also be a "waste of time on collateral issues by forcing them to defend plaintiff's placement in the safety cell, a decision which neither Defendant made." (Defs.' Mots. in Limine at 3.) Plaintiff responds that the conditions are relevant because it was part of Plaintiff's observations after the alleged beating in the safety cell, which goes to his ability to accurately perceive his surroundings. (Plf.'s Opp'n to Mots. in Limine, Dkt. No. 82 at 1-2.) Further, Plaintiff has argued that he had no ankle injury when he was taken to the safety cell, but suffered an ankle injury while in the safety cell. (Id. at 1.) Testimony about the safety cell conditions is therefore relevant because the cell is constructed with a softer material and lacks fixtures or furniture, thus "lessen[ing] the possibility that plaintiff injured himself in that cell." (Id. at 2.)
The Court finds that the condition of the safety cell is relevant. Here, Plaintiff's observations are part of his narrative of what occurred in the safety cell, specifically the aftermath of the alleged beating. The conditions of the safety cell are also highly relevant to whether Plaintiff could have injured himself in the safety cell, which would support his claim that his injuries were caused by being beaten.
The Court also concludes that this evidence should not be excluded. Defendants have not shown that the evidence is prejudicial, as their only argument is that neither Defendant made the decision to move Plaintiff to a safety cell. (See Defs.' Mots. in Limine at 3.) That argument goes to relevance, not prejudice. Further, the Court disagrees that it is a collateral issue or a waste of time, as the safety cell conditions are probative of Plaintiff's explanation of how his ankle was broken. The Court DENIES Defendants' first motion in limine. Plaintiff is not, however, to discuss the safety cell conditions in the context of punishment.
Defendants request that the Court prohibit Plaintiff from introducing evidence that his September 7, 2013 citation was dismissed. (Defs.' Mots. in Limine at 4.) Plaintiff does not oppose, provided that the Court agree with the parties' stipulation to issue a jury instruction that the jury is not to consider whether there was a criminal case filed or its outcome. (Plf.'s Opp'n to Mots. in Limine at 3; Joint Pretrial Statement at 5, Dkt. No. 74.) The Court will issue the stipulated jury instruction, and therefore GRANTS Defendants' second motion in limine.
Defendants request that the Court exclude evidence of Defendant Howe's attendance at the police academy and his decision not to pursue a police officer position. (Defs.' Mots. in Limine at 7.) Over a year after the September 7, 2013 events, Howe attended the Police Academy, but failed to pass after twice failing a scenario. (Howe Dep. at 36:10-20, Dkt. No. 70, Exh. C.) The two scenarios concerned a robbery and burglary, and Defendant Howe explained that he was told that he needed to communicate better with dispatch and his fellow officers, that his spatial relation to the actual scene was too far away, that his approach could have been better, and that his investigation could have been better. (Id. at 37:9-12, 20-24, 38:8-11.) Howe voluntarily left the Berkeley Police Department in April 2015. (Id. at 39:22-40:1.)
Defendants argue that Howe's participation at the police academy is irrelevant to Plaintiff's excessive force claim because the academy attendance was a year after the September 7, 2013 events, and because his reasons for failing were not related to his duties as a jailor. (Defs.' Mots. in Limine at 8.) Plaintiff opposes, contending that it is evidence of "poor judgment." (Plf.'s Opp'n to Mots. in Limine at 3.) He suggests that Howe's failure to not get close enough to the scene is "indicative of fear," and that "fear in a beating case is always in issue." (Id.) Further, the inability to complete the investigation is probative of Howe's ability to "perceive and report." (Id.)
The Court agrees with Defendants that Howe's police academy experience is not relevant. The reasons Howe did not pass the police academy were related to his investigatory and communication skills with fellow officers. By contrast, Plaintiff accuses Howe of forcefully taking him into the safety cell and deliberately beating him. (Plf.'s Trial Brief at 2, Dkt. No. 65.) As Defendants point out, this alleged intentional use of excessive force is not "a question of `judgment,' related to whether he correctly analyzed certain robbery scenarios in the police academy." (Defs.' Mots. in Limine at 9.) Plaintiff also does not explain why fear would be an issue where a person deliberately participates in the beating of another individual. In short, Plaintiff has failed to show why Howe's police academy experience makes it more or less likely that he participated in beating Plaintiff.
Even assuming the Howe's police academy experience was relevant, its minimal relevance is outweighed by unfair prejudice, namely the risk of giving the jury a negative impression of Howe for reasons unrelated to the facts of this case. The Court therefore GRANTS Defendants' third motion in limine.
Defendants move to exclude evidence of prior citizen complaints against Defendant Ettare, none of which were sustained. (Defs.' Mots. in Limine at 9.) Neither party explains what these complaints concern. Defendants argue that the complaints are not relevant because they were not sustained, and that they would be unduly prejudicial by suggesting that Ettare committed prior wrongdoing. (Id. at 10-11.) Defendants also contend that the complaints should be excluded as prior bad acts under Rule 404(b), as a subsequent remedial measure under Rule 407, and as hearsay under Rule 802. (Id. at 11-12.) Plaintiff opposes on the ground that evidence of other wrongs or acts are admissible under Rule 404(b) to prove motive, intent, plan, knowledge, or absence of mistake or accident, although Plaintiff does not specify how such matters will be proven by the complaints at issue in this case. (Plf.'s Opp'n to Mots. in Limine at 4.) Further, Plaintiff contends the complaint itself is not a subsequent remedial measure under Rule 407.
As an initial matter, the Court disagrees with Defendants' contention that the complaints should be excluded as a subsequent remedial measure under Rule 407. The Advisory Committee Notes make clear that Rule 407 "applies only to changes made after the occurrence that produced the damages giving rise to the action." Fed. R. Civ. P. 407 advisory committee's note to 1997 amendment. In short, Rule 407 does not apply to a subsequent remedial measure that is unrelated to the challenged harm in the instant case.
Defendants move to exclude evidence regarding Defendant Ettare losing Plaintiff's cell phone and wallet. (Defs.' Mots. in Limine at 12.) Defendants argue that this evidence is irrelevant because there is no claim for lost property in this case, and that lost property is not a proper measure of damages for an unlawful arrest cause of action. Rather, Defendants contend that Plaintiff can only recover his lost property through a tort claim per the California Tort Claims Act. (Id. at 13.) Plaintiff responds that he would not have lost his wallet and cell phone if not for the arrest, and that it therefore goes to damages under his § 1983 claim. (Plf.'s Opp'n to Mots. in Limine at 6.)
In general, "[a] plaintiff who establishes liability for deprivations of constitutional rights actionable under 42 U.S.C. § 1983 is entitled to recover compensatory damages for all injuries suffered as a consequence of those deprivations." Borunda v. Richmond, 885 F.2d 1384, 1389 (9th Cir. 1988). Thus, "[t]he victim of the constitutional deprivation is entitled to compensation for economic harm, pain and suffering, and mental and emotional distress that results from the violations." Id. Plaintiff's cell phone and wallet were taken and lost during the course of the arrest, and thus constitute economic harm resulting from the alleged unlawful arrest. (See Ettare Dep. at 328:1-21, Dkt. No. 70, Exh. B.) Defendants' cases concern whether a plaintiff may bring a standalone § 1983 claim for lost property, not whether lost property is an appropriate measure of damages for a § 1983 claim that is not based on lost property. See Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) ("a negligent or intentional deprivation of a prisoner's property fails to state a claim under section 1983 if the state has an adequate post deprivation remedy"); Howard v. Dalisay, No. C 10-5655 LB, 2013 WL 5645193, at *4 (N.D. Cal. Oct. 16, 2013) (dismissing § 1983 claim based on stolen valuables). Because evidence of the lost cell phone and wallet goes to recoverable economic damages, the Court DENIES Defendants' fifth motion in limine. Defendant is not precluded from arguing that Plaintiff cannot be compensated without a finding of unlawful action.
Defendants move to exclude evidence implying there was a cover up or conspiracy, and to prevent Plaintiff from using language such as "code of silence," "wall of silence," "wall of blue," "blue wall," and "green wall." (Defs.' Mots. in Limine at 15.) Plaintiff does not oppose the request to exclude language such as "code of silence," but argues that he should be able to point out evidence that "raise[s] an inference that the officers are covering for one another." (Plf.'s Opp'n to Mots. in Limine at 7.)
Absent evidence, the Court agrees that Plaintiff may not suggest there was a cover up or conspiracy, with or without using language such as "code of silence." Courts have generally found such language and evidence to be irrelevant to whether a defendant used excessive force against a plaintiff, in addition to being highly prejudicial. Baltimore v. Haggins, No. 1:10-cv-931-LJO-JLT (PC), 2013 WL 4676455, at *6 (E.D. Cal. Aug. 30, 2013); Engman v. City of Ontario, No. EDCV 10-284 CAS (PLAx), 2011 WL 2463178, at *4 (C.D. Cal. June 20, 2011) (finding that the plaintiff could argue that the defendants' version of the facts is not credible, but that plaintiff's witnesses could not use terms such as "code of silence" or "wall of blue"); Jackson v. Mendez, Case No.: 1:11-cv-80-BAM (PC), 2015 U.S. Dist. LEXIS 154717, at *8-9 (E.D. Cal. Nov. 13, 2015) (finding that evidence concerning a conspiracy by officers to cover up the actions of other officers in excessive force case is irrelevant to the issues in the case and that development of the issue would consume an undue amount of time and confuse and mislead the jury). Further, inconsistency between Plaintiff's and Defendants' versions of the evidence is insufficient evidence of a conspiracy; "[t]hough Defendant may offer the testimony of other officers on the scene, the fact that their versions disagree with Plaintiff's—assuming they do—is insufficient to justify introduction of evidence that the testimony is due to a code of silence." Baltimore, 2013 WL 4676455, at *6.
Defendants move to allow Defendants to introduce evidence of Plaintiff's prior arrest and conviction history. (Defs.' Mots. in Limine at 18.) For the reasons discussed as to Plaintiffs' first motion in limine, the Court DENIES Defendants' seventh motion in limine.
Defendants' proposed exhibit A-1 is the "Detail Call for Service Report" from September 7, 2013, which includes three columns: "create time," "created by," and "narrative." Plaintiff objects to the exhibit as being irrelevant, hearsay, and confusing and misleading to the jury. (Plf.'s Objections to Exhibits at 1, Dkt. No. 87.) The Service Report is itself a business record, and the statements contained within are present sense impressions in which the reporting witnesses to the fight are providing a live account of what is happening. Fed. R. Evid. 803(1), (6); compare wit Harrigan v. Marion Cty., 6:11-cv-06174-SI, 2013 WL 5274407, at *3 (D. Ore. Sept. 18, 2013). The Service Report is also admissible for a non-hearsay purpose by going to Defendant Ettare's state of mind when he reached the scene, as he had heard from a dispatcher that one of the suspects involved in the fight was wearing an Oakland Raiders jersey, which Plaintiff was also wearing. (See Defs.' Trial Brief at 2, Dkt. No. 68.) This also goes to relevance. Further, the Court finds that the Service Report is not confusing or misleading, and Plaintiff does not explain otherwise. Plaintiff's objection is OVERRULED.
Defendants' proposed exhibit A-2 is the "Case Report" from September 7, 2013. Plaintiff objects to the exhibit as being hearsay and improper opinion, and under Rule 403. (Plf.'s Objections to Exhibits at 1-2.) Plaintiff argues that opinions of the writer are not admissible under the business records exception. Even if the business records exception does not apply, however, the Ninth Circuit has "held that district courts should admit such law-enforcement reports, if at all, only under the public-records exception contained in Federal Rule of Evidence 803(8)." United States v. Pena-Gutierrez, 222 F.3d 1080, 1086-87 (9th Cir. 2000); see also Neumeyer v. Wawanesa Gen. Ins. Co., No. 14cv181-MMA (RBB), 2015 WL 1924981, at *23 (S.D. Cal. Apr. 24, 2015) ("A police report, including the police officer's statements and observations, are admissible in civil cases under the public records hearsay exception"); Blanton v. Cty. of Sacramento, No. 2:09-cv-1832-MCE-CKD, 2012 WL 2798920, at *1 n.4 (E.D. Cal. July 9, 2012) ("The police officers' statements and observations recorded in a police report are admissible. . . under the public-records hearsay exception contained in Fed.R.Evid. 803(8)").
Although the case report may be admissible under the public records hearsay exception, the Court finds that such evidence should be excluded under Rule 403 as being cumulative, as Defendant Ettare will be called as a witness and can testify about the matters that are contained in the report. See Gilliam v. Cty. of L.A., 37 F.3d 1505, 1994 WL 551508, at *2 (9th Cir. 1994) (district court did not abuse discretion in refusing to admit the police report of the incident because the police report was "cumulative of the extensive direct and cross examination of the deputies"). The police report may be used to refresh Officer Ettare's memory, but is otherwise cumulative in light of Defendant Ettare's testimony. See Velasquez v. City of Santa Clara, Case No. 5:11-cv-3588-PSG, 2014 U.S. Dist. LEXIS 33004, at *1 (N.D. Cal Mar. 11, 2014) (granting motion in limine to prohibit the introduction of police reports as documentary evidence but allowing a witness to use the report to refresh memory). The Court therefore SUSTAINS the objection.
Defendants' proposed exhibit A-5 is 911 calls from September 7, 2013, in which witnesses to the fight are describing the fight to 911. Plaintiff objects to the exhibit as being hearsay and irrelevant. The 911 calls are not hearsay because they are a present sense impression. Harrigan, 2013 WL 5274407, at *3 ("The MacLeay staff member's statements on the 911 call describe an ongoing emergency incident that she was personally witnessing, and therefore, are admissible under the FRE 803(1) exception to the hearsay rule"). As for relevance, at the hearing Defendants explained that the 911 calls directly contradict Plaintiff's explanation of the fight and events immediately preceding his arrest, which impacts Plaintiff's credibility. The Court finds that the 911 calls are relevant, and that its relevance is not substantially outweighed by potential for confusion or prejudice.
Defendant's proposed exhibit A-6 is Plaintiff's consolidated arrest report. Plaintiff objects to information that indicate a prior arrest and information regarding a court appearance, including the charges, court date, and bail. (Plf.'s Objections to Exhibits at 2.) At the hearing, Plaintiff stated that he is fine with redacting the information regarding a court appearance, which Defendants agreed to do. Thus, Plaintiff's objection is SUSTAINED. After the proposed redactions, however, there is no information in the exhibit that is in dispute. The Court finds this exhibit to be cumulative and prejudicial under Rule 403. Therefore, the entire document is excluded.
Defendant's proposed exhibit A-10 is Roberto Lucero's Detainee Confinement Record. Plaintiff objects on the ground that the DCR is irrelevant, hearsay, violates the privacy rights of Mr. Lucero, and under FRE 403. (Plf.'s Objections to Exhibits at 2.) The exhibit is relevant to Plaintiff's credibility as Mr. Lucero's answer in the DCR regarding whether he was in a physical altercation immediately before or subsequent to his arrest contradicts Plaintiff's version of events. The exhibit is not hearsay to the extent it is used against Mr. Lucero as a prior inconsistent statement. Further, Mr. Lucero's privacy rights are not improperly invaded because his arrest will already be discussed during the trial. Plaintiff's objection is OVERRULED.
Defendant's proposed exhibit A-11 is Plaintiff's citation and Notice to Appear. Plaintiff objects that the citation is hearsay, improper opinion, and that its relevance is outweighed by prejudice. (Plf.'s Objections to Exhibits at 2.) At the hearing, Defendants agreed to exclude the exhibit. Plaintiff's objection is SUSTAINED.
Defendant's proposed exhibit A-12 is Roberto Lucero's citation and Notice to Appear. Plaintiff objects that the citation is hearsay, improper opinion, and that its relevance is outweighed by prejudice. (Plf.'s Objections to Exhibits at 3.) The exhibit has no apparent relevance to what occurred to Plaintiff, as it is limited to Plaintiff's brother and does not relate to Plaintiff in any way. Plaintiff's objection is SUSTAINED.
Defendant's proposed exhibit A-13 is Roberto Lucero's consolidated arrest record. Plaintiff objects that it is irrelevant, hearsay, improper opinion, violates the privacy rights of Mr. Lucero, and that its relevance is outweighed by prejudice. (Plf.'s Objections to Exhibits at 3.) At the hearing, Defendants stated they only wanted to admit the photograph of Mr. Lucero, which Plaintiff did not object to. The Court, however, does not see how the photograph of Plaintiff's brother in the consolidated arrest record is relevant to its defense. Plaintiff's objection is therefore SUSTAINED.
Defendant's proposed exhibit A-15 is a recording of Roberto Lucero's phone call with Mrs. Lucero, while A-16 is the transcript of the call. Plaintiff objects that these exhibits are irrelevant, hearsay, violates the privacy rights of Mr. and Mrs. Lucero, and that it is a waste of time, misleading, and confusing to the jury. (Plf.'s Objections to Exhibits at 3.) The majority of the phone call and transcript are not hearsay because they are describing an event as it occurred, namely that Mr. Lucero was in jail and needed someone to pick him up. See Fed. R. Evid. 803. Plaintiff fails to identify what privacy rights would be violated, and the fact of Mr. Lucero's arrest will already be discussed at the trial. At the hearing, Defendants explained that the phone call is relevant to the credibility of the Luceros and the timeline of Plaintiff's version of events. The Court finds that this probative value outweighs any prejudicial effect. Plaintiff's objection is OVERRULED. Any reference to Mrs. Lucero as drunk, however, is prejudicial and must be redacted.
Defendant's proposed exhibit A-19 is the contract between the City of Berkeley and Crime Scene Cleaners, Inc., and its proposed exhibit A-20 is invoices from Crime Scene Cleaners, Inc. for September 2013. Plaintiff objects that these exhibits are irrelevant, incompetent, and potentially misleading, confusing, and a waste of time. At the hearing, Defendants explained that Plaintiff had claimed he had bled everywhere in the safety cell, but the invoices show that Crime Scene Cleaners was never called to clean up blood from a safety cell in September. Thus, the invoices contradict Plaintiff's version of events. The Court finds the exhibits are relevant and will be introduced by the custodian of records for the City of Berkeley. A foundation will, however, need to be laid that no other cleaning service was ever used to clean cells or that jail staff did not clean cells, as the fact that Crime Scene Cleaners was not called does not necessarily mean there was no clean up. Assuming such a foundation can be laid, Plaintiff's objection is OVERRULED.
Defendants' proposed exhibits A-21 through A-24 and A-29 concern police records related to Plaintiff's prior arrests. For the same reasons as discussed as to Plaintiff's first motion in limine, Plaintiffs' objections are SUSTAINED.
There are a number of exhibits whose relevance is unclear at this time. Defendants should be prepared to discuss the relevance of the following exhibits on June 26, 2017, prior to jury selection: Exhibit A-8 (Alameda County Sheriff's Department Prisoner Property Receipt for Plaintiff's property), A-25 (photo of Defendant Howe), A-26 (photo of CSO McDaniel), and A-27 (photo of 107.7 Bone Beer fest participants).
Plaintiff's proposed exhibits 1 and 2 consist of photos of his injuries. Plaintiff's proposed exhibits 3-6 consist of medical bills of his treatment. Plaintiff's proposed exhibit 7 consists of x-rays of his ankles. Defendant objects to each of these exhibits because they were not disclosed pursuant to Federal Rule of Civil Procedure 26(a). (Defs.' Evidentiary Objections at 1-3, Dkt. No. 88.)
Rule 26(a) requires that a party provide "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. . . ." "Rule 37(c)(1) gives teeth to these requirements by forbidding the use at trial of any information required to be disclosed by Rule 26(a) that is not properly disclosed." Hoffman v. Constr. Protective Servs., Inc., 541 F.3d 1175, 1179 (9th Cir. 2008) (internal quotation omitted). "Under Rule 37, exclusion of evidence not disclosed is appropriate unless the failure to disclose was substantially justified or harmless." Id. "In determining whether this sanction should be imposed, the burden is on the party facing the sanction . . . to demonstrate that the failure to comply with Rule 26(a) is substantially justified or harmless." Torres v. City of L.A., 548 F.3d 1197, 1213 (9th Cir. 2008). Defendants are therefore "not required to articulate how they would be prejudiced by" Plaintiff's failure to timely disclose.
At the hearing, Plaintiff explained that the failure to comply was harmless because Defendants had previously used the photographs in their summary judgment motion, and Defendants also had the medical records from the subpoenas. The Court therefore finds that Plaintiff has adequately explained that the failure to comply with Rule 26(a) was harmless. Because Defendants offer no other reason for excluding this evidence, Defendant's objection to Exhibit 1-7 is OVERRULED.
Plaintiff's proposed exhibit 8 is Dr. Jimmy D. Cardoza's CV, and his proposed exhibit 9 is Dr. Kelmenson-Chau's CV. Defendants object to these exhibits because they contend both experts were not properly disclosed under Rule 26(a)(2)(C). (Defs.' Evidentiary Objections at 3-4.) Rule 26(a)(2)(C) states that if an expert is not required to provide a written report, the disclosure must provide "(i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which the witness is expected to testify."
The Court finds that Plaintiff has failed to provide a summary of the facts and opinions to which these experts will testify. Instead, Plaintiff simply states that these experts "will testify as to Plaintiff's physical condition on or about the date of the incident," and that all parties possess the medical records. (Dkt. No. 88-1 at 11.
At the hearing, Plaintiff failed to provide any explanation, relying instead on the incorporation of the medical records. This is not an adequate disclosure. The Court finds that Plaintiff has not adequately explained why the failure to comply with Rule 26(a)(2)(C) was harmless. Defendant's objection to Exhibits 8-9 is SUSTAINED.
Plaintiff objects to the testimony of Alicia Escamillo on the same grounds as his challenges to Exhibits A-19 and A-20. For the reasons discussed as to those exhibits, the Court OVERRULES Plaintiff's objection.
Plaintiff objects to the testimony of the custodians of record for the Hayward Police and Alameda County Sheriff. (Dkt. No. 84 at 1-2.) This testimony concerns the arrest records for Plaintiff's arrests for being drunk in public. Because the Court has granted Plaintiff's first motion in limine, these arrest records will be excluded, making the testimony of the custodians of record unnecessary.
Defendants object to Dr. Cardoza and Dr. Kelmenson-Chau for failure to comply with Rule 26(a)(2)(C). For the same reasons discussed as to Defendants' objections to the CVs of these expert witnesses, Defendants' objections are SUSTAINED. This does not preclude Plaintiff from introducing Dr. Cardoza and Dr. Kelmenson-Chau as non-expert witnesses.
Defendants object to Sandra Lucero, Charlie Rice, and Calvin Mettler for failure to comply with Rule 26(a)'s disclosure requirements, as none of these witnesses were disclosed in Plaintiff's initial disclosures.
With respect to Sandra Lucero, although Ms. Lucero was identified in answers to interrogatories and deposed, she was never identified as a witness regarding Plaintiff's lost wages. Defendants therefore did not question her regarding the lost wages. The Court OVERRULES Defendants' objection to Ms. Lucero except as to lost wages; Ms. Lucero is not to testify about Plaintiff's lost wages.
As to Charlie Rice, Plaintiff identified Mr. Rice as being at the Pyramid House on the night of the incident, and during his deposition discussed Mr. Rice in the context of being Plaintiff's employer and lost wages. The Court therefore OVERRULES Defendants' objection to Mr. Rice.
With respect to Calvin Mettler, however, the Court concludes that Plaintiff's failure to disclose was harmless because Defendants themselves disclosed Mr. Mettler in their initial disclosures. (Defendants' Evidentiary Objections at 6.) Therefore, Defendants clearly knew of Mr. Mettler and were not prejudiced by Plaintiff's failure to disclose him as a witness. Defendant's objection to Mr. Mettler is OVERRULED.
First, Plaintiff objects to Defendants' use of Plaintiff's Responses to Interrogatories, Set 2, Nos. 20 and 21 on the grounds that he supplemented his response on August 22, 2016. (Dkt. No. 89 at 1-2.) Interrogatory No. 20 asks Plaintiff to "[p]rovide a description (indicate race, gender, approximate height, approximate weight, hair color and any other physical characteristics) of each of the `OFFICERS' who `carried [YOU] into a concrete room with a drain on the floor and slammed [YOU] to the floor' as alleged in Paragraph 11 of YOUR First Amended Complaint." (Dkt. No. 88-1 at 4-5.) Plaintiff did not identify Defendant Howe in his response until he provided his August 22, 2016 supplemental response. Similarly, Interrogatory No. 21 asks Plaintiff to "[p]rovide a description (indicate race, gender, approximate height, approximate weight, hair color and any other physical characteristics) of each of the `OFFICERS' who `proceed to hit and kick the still handcuffed plaintiff [YOU], and also twisted [YOUR] ankle until it made a loud popping sound' as alleged in Paragraph 11 of YOUR First Amended Complaint." (Id. at 5.) Again, Plaintiff did not identify Defendant Howe in his response until August 22, 2016.
Plaintiff's supplemental response is not timely; Plaintiff contends that he had identified Howe in his June 10, 2016 opposition to Defendant's summary judgment, yet he did not amend his response to the interrogatory until two days after the pretrial filings were due. At the hearing, Plaintiff offered no explanation for the undue delay. Further, the August 22, 2016 updated response does not contain a verification, and there is no indication in the record before the Court that a verification was ever provided. (See id. at 7.) Plaintiff's objection is therefore OVERRULED.
Second, Plaintiff objects to Defendants' use of Plaintiff's Responses to Interrogatories, Set 1, No. 14. Request No. 14 asks: "For each
Finally, Plaintiff objects to Defendants' designation of approximately 140 pages of Plaintiff's deposition testimony as needlessly cumulative. (Id.) The Court agrees that it would be needlessly cumulative to introduce all of the designated pages when Plaintiff will be testifying at the trial on similar matters. Courts have recognized that live testimony is generally preferable to deposition testimony. E.g., Van Slyke v. Capital One Bank, 503 F.Supp.2d 1353, 1364 (N.D. Cal. 2007). At the hearing, the Court asked Defendants whether they intended to use all of the deposition testimony, and for what purpose. Defendants stated they would only use limited portions and snippets as necessary, mostly for impeachment purposes. The Court therefore SUSTAINS Plaintiff's objection to using the entirety of the designated deposition testimony, although this does not preclude Defendants from using limited portions.
Both parties filed voir dire questions, and neither party has filed objections to the proposed voir dire. (Dkt. Nos. 71, 75.) The parties shall use the proposed voir dire attached to this order as Attachment A.
The parties filed joint jury instructions, as well as each party's proposed jury instructions. (Joint Jury Instructions, Dkt. No. 77; Plf.'s Jury Instructions, Dkt. No. 67; Defs.' Jury Instructions, Dkt. No. 79.) The parties also filed objections to the other's proposed jury instructions. (Plf.'s Obj. to Jury Instructions, Dkt. No. 83; Defs.' Obj. to Jury Instructions, Dkt. No. 90.) The Court resolves the parties' disputes as shown in the jury instructions set forth in Attachment B, and as supplemented below.
First, the parties dispute the excessive force instruction regarding Defendant Ettare's arrest of Plaintiff. (Plf.'s Jury Instructions at 1-2; Defs.' Jury Instructions at 3-4.) The Court finds that both proposed instructions contain unnecessary information. For example, Plaintiff proposes adding factors such as the availability of alternative methods, the practicality of a warning, and whether there was mistaken fact. (Plf.'s Jury Instructions at 2.) Plaintiff does not, however, explain why any of these factors are relevant in this case. Similarly, Defendants propose adding language which explains that an officer is permitted to use reasonable force to effectuate an arrest or a detention. (Defs.' Jury Instructions at 3-4.) The question in this case is not whether an officer is permitted to use reasonable force, but whether the officer used excessive force, making these additions potentially confusing to a jury. Defendants also object to the omission of the phrase "or in defending himself" in Plaintiff's proposed instruction, but have never suggested in any of their filings that Ettare was defending himself when he arrested Plaintiff. (Defs.' Obj. to Jury Instructions at 3; see also Defs.' Trial Brief at 2-3 (describing Defendants' version of the arrest).) The Court will use the standard Ninth Circuit Model Jury Instruction, without any of the additional factors and information proposed by the parties.
Second, the parties dispute the standard for punitive damages, whether it should be preponderance of the evidence or clear and convincing evidence. Several district courts in this Circuit have applied a preponderance of the evidence standard for § 1983 punitive damages or otherwise declined to apply a clear and convincing evidence standard. E.g., Abudiab v. City & Cty. of S.F., 833 F.Supp.2d 1168, 1181 (N.D. Cal. 2011) (applying preponderance of the evidence standard); Adams v. Pinole Point Steel Co., Nos. C 92-1962 MHP, C 93-3708 MHP, 1995 WL 73088, at *5 (N.D. Cal. Feb. 10, 1995) ("The burden of proof for establishing liability for punitive damages under sections 1981 and 1983 is preponderance of the evidence"); Williams v. City of Mesa, No. CV-09-1511-PHX-LOA, 2011 WL 836856, at *16 (D. Ariz. Mar. 9, 2011) ("The plaintiff alleging a § 1983 claim has the burden of proving that punitive damages should be awarded by a preponderance of the evidence"); Miller v. LaMontage, Case No. 10-cv-702-WQH (BGS), 2012 WL 684626, at *13 (S.D. Cal. Jan. 23, 2012) (declining to apply California's clear and convincing evidence standard for recovery of punitive damages in a § 1983 case). The Ninth Circuit has not addressed the issue, although it has upheld the issuance of jury instructions that applied the preponderance of the evidence standard to § 1983 punitive damages without discussing the standard of proof. See Dang v. Cross, 422 F.3d 800, 807-08 (9th Cir. 2005). The Tenth Circuit has, however, has cited with approval district court cases that applied a preponderance standard to § 1983 punitive damages in concluding that a preponderance standard applied to Title VII punitive damages claims. Karnes v. SCI Colo. Funeral Servs., Inc., 162 F.3d 1077, 1081 (10th Cir. 1998). In light of this persuasive authority, and the lack of case law applying a clear and convincing standard to § 1983 punitive damages, the Court will apply a preponderance of the evidence standard to the punitive damages claim. This moots Defendants' proposed jury instruction regarding clear and convincing evidence.
Third, Defendants object to Plaintiff's proposed instruction, "§ 103.11 All persons equal before the law — Individuals." (Plf.'s Jury Instructions at 3; Defs.' Objections to Jury Instructions at 5.) The Court finds this instruction unnecessary and will not give it. As explained by the Notes to this jury instruction, it is prejudicial error not to give this instruction "[w]here the plaintiff is a prisoner." Kevin F. O'Malley, et al., 3 Fed. Jury Prac. & Instr. § 103:11 (6th Ed.). Plaintiff is not a prisoner in this case. The Notes further observe that "[i]t is not error to refuse to give this instruction when the jury is told to decide the case without `prejudice, passion or sympathy,'" an instruction that the Court is giving. (See Attachment B at 2 (Duty of Jury).)
Fourth, Defendants object to Plaintiff's proposed instruction, "§ 104.3 Burden of proof where some jurors have served on jury in criminal case." (Plf.'s Jury Instructions at 4; Defs.' Objections to Jury Instructions at 6.) Defendants contend that it is duplicative and confusing. The Court disagrees that it is duplicative and confusing, as it simply explains the difference between the "proof beyond a reasonable doubt" standard and the "preponderance of the evidence" standard. The Court will therefore give the instruction, but only if the jury includes individuals who have served on a jury in a criminal case.
Fifth, Defendants object to Plaintiff's proposed instruction, "104.54 Number of witnesses," arguing it is only "appropriate if [D]efendants were calling numerous witnesses to provide cumulative evidence." (Plf.'s Jury Instructions at 5; Defs.' Objections to Jury Instructions at 7.) The Court disagrees that it is confusing, but does find it duplicative because the Court is already issuing a jury instruction which cautions that the weight of the evidence is not necessarily dependent on the number of witnesses. (See Attachment B at 11 (Credibility of Witnesses).) The Court will therefore not give this instruction.
Sixth, Defendants object to Plaintiff's proposed instructions regarding whether handcuffing and the failure to loosen handcuffs can constitute excessive force. (Plf.'s Jury Instructions at 6-7; Defs.' Objections to Jury Instructions at 8-10.) The Court finds these proposed instructions inappropriate. The question of whether handcuffing constitutes excessive force is a fact-specific inquiry for the jury to decide; there is no per se rule that handcuffing constitutes excessive force. See LaLonde v. Cty. of Riverside, 204 F.3d 947, 960 (9th Cir. 2000); Nava v. Seadler, No. C 08-3066 PSG, 2011 WL 6936341, at *3 (N.D. Cal. Dec. 30, 2011). Giving these instructions will simply stress Plaintiff's theory, a role that the Court declines to take, particularly when Plaintiff is free to present his theory of excessive force based on tight handcuffs that were not loosened upon his request even without the jury instruction. Compare with Nava, 2011 WL 6936341, at *3 (declining to give handcuffing jury instructions).
Seventh, Defendants object to Plaintiff's proposed instruction, "All integral participants are equally liable." (Plf.'s Jury Instructions at 8; Defs.' Objections to Jury Instructions at 11.) The Court will not give this instruction because there is no basis for giving it in this case. Plaintiff's theory is that Defendants' participation itself rose to the level of a constitutional violation when Defendant Ettare arrested Plaintiff, in the process slamming him against a vehicle, and when Ettare and Defendant Howe beat him in the safety cell. (See Plaintiff's Trial Brief at 1-2, Dkt. No. 65.) There is no suggestion that Defendants' liability arises from their participation that would be constitutional if viewed in isolation. Contrast with Blankenhorn v. City of Orange, 485 F.3d 463, 481 n.12 (9th Cir. 2007) (applying integral participation to officers that had no physical contact with the plaintiff and did not themselves use excessive force against the plaintiff).
Finally, Defendants object to Plaintiff's proposed instruction, "When no force is necessary, any use of force is excessive." (Plf.'s Jury Instructions at 9; Defs.' Objections to Jury Instructions at 12.) The Court disagrees with Defendant's argument that this is a misstatement of the law. In Headwaters Forest Defense v. County of Humboldt, the Ninth Circuit explained that to determine whether excessive force was applied using an objective reasonableness analysis, "the force which was applied must be balanced against the need for that force." 240 F.3d 1185, 1199 (9th Cir. 2000) (internal quotations omitted), vacated on other grounds by 534 U.S. 801 (2001). It then went on to state, "Thus, where there is no need for force, any force used is constitutionally unreasonable." Id.; see also P.B. v. Koch, 96 F.3d 1298, 1303 (9th Cir. 1996) ("when the force is excessive, or used without justification or for malicious reasons, there is a violation of substantive due process") (emphasis added and internal quotation omitted). Thus, this instruction, when combined with Model Instruction 9.23, is an accurate statement of the law. The Court also disagrees that the instruction is not supported by Plaintiff's claim, as Plaintiff has argued that he was not drunk at the time of his arrest, that he did not participate in the fight, and that he was compliant in prison. (See Plaintiff's Trial Brief at 2, 6.) If a jury believed Plaintiff's version of the events, they could appropriately conclude that any force would be excessive because there was no need for force. The Court will therefore give this instruction.
The parties have provided separate verdict forms, and filed objections to the other parties' verdict form. (Dkt. Nos. 74, 76, 85, 91.) The Court resolves the parties' disputes as shown in the verdict form set forth in Attachment C, and as supplemented below.
First, the parties dispute who has the burden of showing that Plaintiff was arrested with or without probable cause. (Plf.'s Obj. to Verdict Form at 1, Dkt. No. 85; Defs.' Obj. to Verdict Form at 1.) The Ninth Circuit has been clear that "the plaintiff bears the burden of proof on the issue of unlawful arrest." Dubner v. City & Cty. of S.F., 266 F.3d 959, 965 (9th Cir. 2001); see also Beck v. City of Upland, 527 F.3d 853, 864 (9th Cir. 2008) ("Ordinarily, however, the plaintiff bears the burden of proving the absence of probable cause . . . in a Fourth Amendment false arrest case"). Plaintiff provides no authority otherwise, and has in fact stipulated to this standard of proof in the jointly submitted jury instructions. (See Joint Jury Instructions at 17.)
Second, Defendants object to Plaintiff's excessive force questions and the lack of a requirement that Plaintiff meet his burden of proof and the standard of unconstitutional excessive force. Requiring that Plaintiff prove by a preponderance of evidence that Defendants used excessive force is consistent with other verdict forms used by district courts in the Ninth Circuit, as well as the Ninth Circuit Model Civil Jury Instruction No. 9.23. E.g., Roshone v. Jost, No. 2:11-CV-1331-BR, 2014 WL 668706, at *1-2 (D. Ore. Nov. 25, 2014); Allen v. City of L.A., CV 10-4695-CAS (RCx), 2012 U.S. Dist. LEXIS 168247, at *2 (C.D. Cal. Nov. 19, 2012); 9th Cir. Model Civ. Jury Inst. 9.23 (2007). The Court, however, substitutes "unreasonable" for "unconstitutional," as the standard for excessive force is whether the force is "objectively reasonable" under the circumstances. This is also consistent with the parties' jointly submitted jury instructions. (See Joint Jury Instructions at 18.)
Third, Plaintiff objects to Defendants' request that the jury apportion fault. Defendants' proposal has the same effect as Plaintiff's, in that the apportionment is used to determine how much each Defendant is liable for, a question that Plaintiff has asked in Questions No. 3 and 5 of his verdict form. Defendants' proposal simply asks that the jury consider the total damages before dividing it by Defendant, while Plaintiff would have the jury consider each component without looking at the total. As Defendants have made no objections to Plaintiff's proposal, however, the Court will use Plaintiff's proposal.
IT IS SO ORDERED.
Please fill out this form as completely as possible and print clearly. Since we want to make copies for the attorneys and the Court, do not write on the back of any page. If you need more room, continue at the bottom of the page. Thank you for your cooperation.
1. Your name: ________________________________________________
2. Your age: _____________
3. The city where you live: ___________________________________
4. Your place of birth: _______________________________________
5. The city where you grew up: ________________________________
6. Do you rent or own your own home? _________________________
7. What are your hobbies, major interests, recreational pastimes, and spare-time activities? _______________________________________________________________
8. Please describe your educational background:
9. What is your occupation, and how long have you worked in it? (If you are retired, please describe your main occupation when you were working). _______________________________________________________________
10. Who is (or was) your employer? _______________________________________________________________
11. Please list the occupations of any adults with whom you live. _______________________________________________________________
12. If you have children, please list their ages and gender and, if they are employed, please give their occupations. _______________________________________________________________
13. Do you have any family or friends who have been employed in law enforcement? If yes, please list their relationship to you and occupation. _______________________________________________________________
14. Have you ever served on a jury before? ________ How many times?________
15. Have you ever served on a grand jury? ________
16. Have you, or any members of your immediate family, ever been a plaintiff or defendant in any lawsuit? (a) If so, what happened? (b) Was the issue resolved to your satisfaction? If not, why not? _______________________________________________________________
17. Have you ever served in the military? ________
18. Have you, or has anyone in your family or a close friend, had contact with law enforcement? If so, identify whom and explain the extent of that contact. _______________________________________________________________
19. Have you, or has anyone in your family or a close friend, been arrested, formally charged with a crime, or convicted of a crime? If so, who? _______________________________________________________________
20. Have you, or has anyone in your family or a close friend, had a serious incident involving alcohol (for example, public intoxication, driving under the influence)? If so, describe the circumstances of the incident. _______________________________________________________________
21. Do you have any reason to believe you would not be impartial towards police officers or police agencies, one way or another? If so, explain. _______________________________________________________________
22. This is a civil rights action, where Plaintiff alleges claims for false arrest and excessive force. Plaintiff was arrested by the Berkeley Police Department on September 7, 2013, after attending the BrewFest at the Pyramid Alehouse and Brewery in Berkeley. Plaintiff alleges he and his brother witnessed a fight near his car, when someone hit Plaintiff in the front of his neck. Plaintiff fell, and his brother intervened to help him. Defendant Officer Ettare arrested Plaintiff and his brother, during which he slammed Plaintiff against the passenger side mirror, breaking it. Plaintiff was transported to the Berkeley Police Department jail. There, Plaintiff was taken to a safety cell, where officers proceed to beat him, breaking his ankle and causing him to lose consciousness. Plaintiff was later transported to Alta Bates Hospital after complaining of an ankle injury. Defendants allege that Officer Ettare was dispatched to the scene after reports of a fight, and that he saw Plaintiff in the middle of the road. Officer Ettare witnessed a vehicle, later identified as Plaintiff's vehicle being driven by Plaintiff's brother, hit Plaintiff's left arm, causing the mirror to fall off. Officer Ettare arrested Plaintiff on suspicion of being drunk in public. Plaintiff was taken to the Berkeley Police Department jail, where he was verbally abusive and combative. Plaintiff was placed in a safety cell, and Defendants deny beating Plaintiff. When Plaintiff complained of an ankle injury, he was taken to Alta Bates Hospital.
23. Do you know anyone who works as a judge, a clerk, a bailiff, an attorney, a court reporter or in any other court-related job? If so, who? _______________________________________________________________
24. Have you, or any members of your immediate family, ever worked for the City of Berkeley or Berkeley Police Department? Do you have any strong feelings about the City of Berkeley or the Berkeley Police Department, one way or another? _______________________________________________________________
25. Below is a list of the parties, attorneys, and persons who are potential witnesses in this case. Do you know, or think you know, any of the persons listed?
26. Do you have any reason to believe you will not be impartial towards any of the parties, attorneys, and persons who are listed as potential witnesses in this case? _______________________________________________________________
27. Below is a list of the court staff. Do you know, or think you know, any of the persons listed?
28. Do you have any disabilities that would prevent you from serving on a 5-day jury trial? If yes, please explain: _______________________________________________________________
29. Do you have any other reason that would prevent you from serving on a 5-day jury trial? If yes, please explain: _______________________________________________________________
30. Is there anything about you that you believe might be important for the Court or the attorneys to know but that hasn't been asked yet?
Members of the jury: You are now the jury in this case. It is my duty to instruct you on the law.
These instructions are preliminary instructions to help you understand the principles that apply to civil trials and to help you understand the evidence as you listen to it. You will be allowed to keep this set of instructions to refer to throughout the trial. These instructions are not to be taken home and must remain in the jury room when you leave in the evenings. At the end of the trial, these instructions will be collected and I will give you a final set of instructions. It is the final set of instructions that will govern your deliberations.
It is your duty to find the facts from all the evidence in the case. To those facts you will apply the law as I give it to you. You must follow the law as I give it to you whether you agree with it or not. And you must not be influenced by any personal likes or dislikes, opinions, prejudices or sympathy. That means that you must decide the case solely on the evidence before you. You will recall that you took an oath to do so.
Please do not read into these instructions or anything I may say or do that I have an opinion regarding the evidence or what your verdict should be.
To help you follow the evidence, I will give you a brief summary of the positions of the parties:
The plaintiff claims that defendant Officer John Ettare detained and arrested plaintiff for public intoxication without probable cause. The plaintiff also claims that Officer Ettare used excessive force during the arrest. The plaintiff further claims that defendants Officer John Ettare and Kyle Howe used excessive force while in jail. The plaintiff has the burden of proving each of these claims by a preponderance of the evidence.
The defendants deny each of these claims.
You should decide the case as to each defendant separately. Unless otherwise stated, such as in the instructions pertaining only to Officer Ettare, the instructions apply to all parties.
When a party has the burden of proof on any claim by a preponderance of the evidence, it means you must be persuaded by the evidence that the claim is more probably true than not true.
You should base your decision on all of the evidence, regardless of which party presented it.
Those of you who have sat on criminal cases will have heard of "proof beyond a reasonable doubt." The standard of proof in a criminal case is a stricter standard, requiring more proof than a preponderance of evidence. The reasonable doubt standard does not apply to a civil case and you should put that standard out of your mind.
The evidence you are to consider in deciding what the facts are consists of:
In reaching your verdict, you may consider only the testimony and exhibits received into evidence. Certain things are not evidence, and you may not consider them in deciding what the facts are. I will list them for you:
Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as testimony by a witness about what that witness personally saw or heard or did. Circumstantial evidence is proof of one or more facts from which you could find another fact. You should consider both kinds of evidence. The law makes no distinction between the weight to be given to either direct or circumstantial evidence. It is for you to decide how much weight to give to any evidence.
There are rules of evidence that control what can be received into evidence. When a lawyer asks a question or offers an exhibit into evidence and a lawyer on the other side thinks that it is not permitted by the rules of evidence, that lawyer may object. If I overrule the objection, the question may be answered or the exhibit received. If I sustain the objection, the question cannot be answered, and the exhibit cannot be received. Whenever I sustain an objection to a question, you must ignore the question and must not guess what the answer might have been.
Sometimes I may order that evidence be stricken from the record and that you disregard or ignore that evidence. That means when you are deciding the case, you must not consider the stricken evidence for any purpose.
In deciding the facts in this case, you may have to decide which testimony to believe and which testimony not to believe. You may believe everything a witness says, or part of it, or none of it.
In considering the testimony of any witness, you may take into account:
Sometimes a witness may say something that is not consistent with something else he or she said. Sometimes different witnesses will give different versions of what happened. People often forget things or make mistakes in what they remember. Also, two people may see the same event but remember it differently. You may consider these differences, but do not decide that testimony is untrue just because it differs from other testimony.
However, if you decide that a witness has deliberately testified untruthfully about something important, you may choose not to believe anything that witness said. On the other hand, if you think the witness testified untruthfully about some things but told the truth about others, you may accept the part you think is true and ignore the rest.
The weight of the evidence as to a fact does not necessarily depend on the number of witnesses who testify. What is important is how believable the witnesses were, and how much weight you think their testimony deserves.
I will now say a few words about your conduct as jurors.
First, keep an open mind throughout the trial, and do not decide what the verdict should be until you and your fellow jurors have completed your deliberations at the end of the case.
Second, because you must decide this case based only on the evidence received in the case and on my instructions as to the law that applies, you must not be exposed to any other information about the case or to the issues it involves during the course of your jury duty. Thus, until the end of the case or unless I tell you otherwise:
These rules protect each party's right to have this case decided only on evidence that has been presented here in court. Witnesses here in court take an oath to tell the truth, and the accuracy of their testimony is tested through the trial process. If you do any research or investigation outside the courtroom, or gain any information through improper communications, then your verdict may be influenced by inaccurate, incomplete or misleading information that has not been tested by the trial process. Each of the parties is entitled to a fair trial by an impartial jury, and if you decide the case based on information not presented in court, you will have denied the parties a fair trial. Remember, you have taken an oath to follow the rules, and it is very important that you follow these rules.
A juror who violates these restrictions jeopardizes the fairness of these proceedings. If any juror is exposed to any outside information, please notify the court immediately.
If there is any news media account or commentary about the case or anything to do with it, you must ignore it. You must not read, watch or listen to any news media account or commentary about the case or anything to do with it. The case must be decided by you solely and exclusively on the evidence that will be received in the case and on my instructions as to the law that applies. If any juror is exposed to any outside information, please notify me immediately.
I urge you to pay close attention to the trial testimony as it is given. During deliberations you will not have a transcript of the trial testimony.
If you wish, you may take notes to help you remember the evidence. If you do take notes, please keep them to yourself until you go to the jury room to decide the case. Do not let notetaking distract you. When you leave, your notes should be left in the jury room. No one will read your notes.
Whether or not you take notes, you should rely on your own memory of the evidence. Notes are only to assist your memory. You should not be overly influenced by your notes or those of other jurors.
Trials proceed in the following way: First, each side may make an opening statement. An opening statement is not evidence. It is simply an outline to help you understand what that party expects the evidence will show. A party is not required to make an opening statement.
Plaintiff will then present evidence, and counsel for Defendants may cross-examine. Then Defendants may present evidence, and counsel for Plaintiff may cross-examine.
After the evidence has been presented, I will instruct you on the law that applies to the case and the attorneys will make closing arguments.
After that, you will go to the jury room to deliberate on your verdict.
From time to time during the trial, it will be necessary for me to talk with the attorneys out of the hearing of the jury, either by having a conference at the bench when the jury was present in the courtroom, or by calling a recess. Please understand that while you are waiting, we are working. The purpose of these conferences is not to keep relevant information from you, but to decide how certain evidence is to be treated under the rules of evidence and to avoid confusion and error.
Of course, we will do what we could to keep the number and length of these conferences to a minimum. I do not always grant an attorney's request for a conference. Do not consider my granting or denying a request for a conference as any indication of my opinion of the case or of what your verdict should be.
Some evidence may be admitted only for a limited purpose.
When I instruct you that an item of evidence has been admitted only for a limited purpose, you must consider it only for that limited purpose and not for any other purpose.
[The testimony [you are about to hear] may be considered only for the limited purpose of [
The parties have agreed to certain facts that will be read to you. You must therefore treat these facts as having been proved.
A deposition is the sworn testimony of a witness taken before trial. The witness is placed under oath to tell the truth and lawyers for each party may ask questions. The questions and answers are recorded.
The deposition of plaintiff Juan Lucero was taken on February 12, 2014.
You should consider deposition testimony, presented to you in court in lieu of live testimony, insofar as possible, in the same way as if the witness had been present to testify. Do not place any significance on the behavior or tone of voice of any person reading the questions or answers.
The evidence that a witness lied under oath on a prior occasion, may be considered, along with all other evidence, in deciding whether or not to believe the witness and how much weight to give to the testimony of the witness and for no other purpose.
Evidence was presented to you in the form of answers of one of the parties to written interrogatories submitted by the other side. These answers were given in writing and under oath, before the actual trial, in response to questions that were submitted in writing under established court procedures. You should consider the answers, insofar as possible, in the same way as if they were made from the witness stand.
You have heard testimony from Dr. Barry Gustin, who testified to opinions and the reasons for his opinions. This opinion testimony is allowed, because of the education or experience of this witness.
Such opinion testimony should be judged like any other testimony. You may accept it or reject it, and give it as much weight as you think it deserves, considering the witness's education and experience, the reasons given for the opinion, and all the other evidence in the case.
Before you begin your deliberations, elect one member of the jury as your presiding juror. The presiding juror will preside over the deliberations and serve as the spokesperson for the jury in court.
You shall diligently strive to reach agreement with all of the other jurors if you can do so. Your verdict must be unanimous.
Each of you must decide the case for yourself, but you should do so only after you have considered all of the evidence, discussed it fully with the other jurors, and listened to their views.
It is important that you attempt to reach a unanimous verdict but, of course, only if each of you can do so after having made your own conscientious decision. Do not be unwilling to change your opinion if the discussion persuades you that you should. But do not come to a decision simply because other jurors think it is right, or change an honest belief about the weight and effect of the evidence simply to reach a verdict.
Because you must base your verdict only on the evidence received in the case and on these instructions, I remind you that you must not be exposed to any other information about the case or to the issues it involves. Except for discussing the case with your fellow jurors during your deliberations:
These rules protect each party's right to have this case decided only on evidence that has been presented here in court. Witnesses here in court take an oath to tell the truth, and the accuracy of their testimony is tested through the trial process. If you do any research or investigation outside the courtroom, or gain any information through improper communications, then your verdict may be influenced by inaccurate, incomplete or misleading information that has not been tested by the trial process. Each of the parties is entitled to a fair trial by an impartial jury, and if you decide the case based on information not presented in court, you will have denied the parties a fair trial. Remember, you have taken an oath to follow the rules, and it is very important that you follow these rules.
A juror who violates these restrictions jeopardizes the fairness of these proceedings. If any juror is exposed to any outside information, please notify the court immediately.
If it becomes necessary during your deliberations to communicate with me, you may send a note through the courtroom deputy, signed by any one or more of you. No member of the jury should ever attempt to communicate with me except by a signed writing. I will not communicate with any member of the jury on anything concerning the case except in writing or here in open court. If you send out a question, I will consult with the lawyers before answering it, which may take some time. You may continue your deliberations while waiting for the answer to any question. Remember that you are not to tell anyone—including the court—how the jury stands, whether in terms of vote count or otherwise, until after you have reached a unanimous verdict or have been discharged.
A verdict form has been prepared for you. After you have reached unanimous agreement on a verdict, your presiding juror should complete the verdict form according to your deliberations, sign and date it, and advise the courtroom deputy that you are ready to return to the courtroom.
The plaintiff brings his claim under the federal statute, 42 U.S.C. § 1983, which provides that any person or persons who, under color of law, deprives another of any rights, privileges, or immunities secured by the Constitution or laws of the United States shall be liable to the injured party.
In order to prevail on his § 1983 claim against the defendants Officer John Ettare and CSO Kyle Howe, the plaintiff Juan Lucero must prove each of the following elements by a preponderance of the evidence:
A person acts "under color of state law" when the person acts or purports to act in the performance of official duties under any state, county, or municipal law, ordinance, or regulation.
As to the first element, the parties agree that defendants Officer John Ettare and CSO Kyle Howe acted in the performance of their official duties, and therefore, they acted under color of state law.
As to the second element, only if you find that the plaintiff has proved all the elements he is required to prove under Jury Instructions 9.19 and 9.23, as to a defendant, your verdict should be for the plaintiff. If, on the other hand, the plaintiff has failed to prove any one or more of these elements, your verdict should be for the defendant.
In order to establish that the acts of defendants Officer John Ettare and Kyle Howe deprived the plaintiff Juan Lucero of his particular rights under the United States Constitution as explained in later instructions, the plaintiff must prove by a preponderance of the evidence that the acts were so closely related to the deprivation of the plaintiff's rights as to be the moving force that caused the ultimate injury.
In general, a seizure of a person by arrest without a warrant is reasonable if the arresting officer had probable cause to believe the plaintiff has committed or was committing a crime.
In order to prove the seizure in this case was unreasonable, the plaintiff must prove by a preponderance of the evidence that he was arrested without probable cause.
"Probable cause" exists when, under all of the circumstances known to the officer at the time, an objectively reasonable police officer would conclude there is a fair probability that the plaintiff has committed or was committing a crime.
The officer's intent or motive is not relevant to your inquiry.
Under state law, it is a crime to be drunk in public. The elements of the crime are:
The jury is not to consider whether the September 7, 2013 arrest resulted in criminal charges or the outcome of any criminal charges.
In general, a seizure of a person is unreasonable under the Fourth Amendment if a police officer uses excessive force in making an arrest. Thus, in order to prove an unreasonable seizure in this case, the plaintiff must prove by a preponderance of the evidence that the Defendant Ettare used excessive force when he arrested Plaintiff Lucero.
Under the Fourth Amendment, a police officer may only use such force as is "objectively reasonable" under all of the circumstances. You must judge the reasonableness of a particular use of force from the perspective of a reasonable officer on the scene and not with the 20/20 vision of hindsight. An officer's intent or motive is not relevant to your inquiry.
In determining whether the officer used excessive force in this case, consider all of the circumstances known to the officer on the scene, including:
Authority: Ninth Circuit Manuel of Model Civil Jury Instructions, No. 9.23
As previously explained, the plaintiff has the burden to prove that the acts of defendants Officer John Ettare and CSO Kyle Howe deprived the plaintiff of particular rights under the United States Constitution.
In this case, the plaintiff alleges the defendants deprived him of his rights under the Fourth Amendment to the Constitution when they allegedly beat him in the safety cell he was being held in pre booking. Under the Fourth Amendment, a police officer may only use such force as is "objectively reasonable" under all of the circumstances. You must judge the reasonableness of a particular use of force from the perspective of a reasonable officer on the scene and not with the 20/20 vision of hindsight. An officer's intent or motive is not relevant to your inquiry.
In determining whether the officer used excessive force in this case, consider all of the circumstances known to the officer on the scene, including:
When there is no need to use force, any force used is constitutionally unreasonable.
It is the duty of the Court to instruct you about the measure of damages. By instructing you on damages, the Court does not mean to suggest for which party your verdict should be rendered.
If you find for the plaintiff on any of his claims, you must determine the plaintiff's damages. The plaintiff has the burden of proving damages by a preponderance of the evidence. The word "damages" means the amount of money that will reasonably and fairly compensate the plaintiff for any injury you find was caused by the defendant. You should consider the following:
The nature and extent of plaintiff's injuries;
The reasonable value of necessary medical care, treatment, and services receive to the present time; and
The reasonable value of necessary medical care, treatment, and services which with reasonable probability will be required in the future;
The reasonable value of earnings lost up to the present time;
The reasonable value of earnings which with reasonable probability will be lost in the future.
Plaintiff has the burden of proving damages by a preponderance of the evidence. It is for you to determine what damages, if any, have been proved.
Your award must be based upon evidence and not upon speculation, guesswork or conjecture.
The plaintiff has a duty to use reasonable efforts to mitigate damages. To mitigate means to avoid or reduce damages.
The defendant has the burden of proving by a preponderance of the evidence:
Any award for future economic damages must be for the present cash value of those damages.
Noneconomic damages such as pain and suffering and disability are not reduced to present cash value.
Present cash value means the sum of money needed now, which, when invested at a reasonable rate of return, will pay future damages at the times and in the amounts that you find the damages will be incurred.
The rate of return to be applied in determining present cash value should be the interest that can reasonably be expected from safe investments that can be made by a person of ordinary prudence, who has ordinary financial experience and skill.
If you find for the plaintiff, you may, but are not required to, award punitive damages. The purposes of punitive damages are to punish a defendant and to deter similar acts in the future. Punitive damages may not be awarded to compensate a plaintiff.
The plaintiff has the burden of proving by preponderance of the evidence that punitive damages should be awarded, and, if so, the amount of any such damages.
You may award punitive damages only if you find that the defendant's conduct that harmed the plaintiff was malicious, oppressive or in reckless disregard of the plaintiff's rights. Conduct is malicious if it is accompanied by ill will, or spite, or if it is for the purpose of injuring the plaintiff. Conduct is in reckless disregard of the plaintiff's rights if, under the circumstances, it reflects complete indifference to the plaintiff's safety or rights, or if the defendant acts in the face of a perceived risk that its actions will violate the plaintiff's rights under federal law. An act or omission is oppressive if the defendant injures or damages or otherwise violates the rights of the plaintiff with unnecessary harshness or severity, such as by the misuse or abuse of authority or power or by the taking advantage of some weakness or disability or misfortune of the plaintiff.
If you find that punitive damages are appropriate, you must use reason in setting the amount. Punitive damages, if any, should be in an amount sufficient to fulfill their purposes but should not reflect bias, prejudice or sympathy toward any party. In considering the amount of any punitive damages, consider the degree of reprehensibility of the defendant's conduct including whether the conduct that harmed the plaintiff was particularly reprehensible because it also caused actual harm or posed a substantial risk of harm to people who are not parties to this case. You may not, however, set the amount of any punitive damages in order to punish the defendant for harm to anyone other than the plaintiff in this case.
