Opinion
No. 2:13-cv-00115-GEB-CKD
01-13-2015
PATRICK WAYNE SOLOMON, Plaintiff, v. OFFICER J. HERMINGHAUS, Defendant.
These motions are suitable for decision without oral argument.
Each party moves in limine for an order precluding the admission of certain evidence at trial. Each motion is addressed below.
In light of the parties' representations concerning the timing of Plaintiff's counsel's decision to continue as counsel through trial, the Court reaches each motion in limine even though they were filed after the deadline prescribed in the Final Pretrial Order.
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A. Plaintiff's Motion
Plaintiff seeks to exclude "[e]vidence of [his] criminal history," arguing:
it is not relevant to the only issue for trial[,] which is whether Defendant used excessive force in the course of arresting Plaintiff. At the time of the arrest, Defendant had no knowledge of Plaintiff's prior criminal history[,] . . . he knew [only] that Plaintiff had previously been an inmate in the local jail . . . .(Pl.'s Mot. in Limine ("MIL") 1:27, 3:8-24, ECF No. 73.) Plaintiff further argues evidence of his criminal history should be excluded under Federal Rules of Evidence ("Rules") 403 and 404(b).
Defendant rejoins that Plaintiff's prior criminal convictions "are relevant to rebut Plaintiff's claim that he was not resisting, but instead simply attempting to ask [Officer Herminghaus] a question." (Def.'s Opp'n 2:23-3:2, ECF No. 76.) Defendant argues:
a Plaintiff's criminal history is highly relevant and totally admissible in a case such as this where an officer's perception of resistance just prior to the application of force is in dispute and evidence of prior criminal convictions makes the officer's perception more probable.(Id. at 3:5-9 (citing Boyd v. S.F., 576 F.3d 938, 944-45 (9th Cir. 2009)). Defendant further counters that Plaintiff's past felony convictions are relevant to his lost earning capacity claim, are admissible under Rule 609 "to attack Plaintiff's character for truthfulness," and are admissible under Rule 404(b)(2) "to demonstrate [Plaintiff's bias,] intent[,] and absence of mistake in this instance." (Id. at 3:23-28, 4:3-7, 4:24-5:9.)
This motion lacks the preciseness required for an in limine ruling.
B. Defendant's Motions
Motion in Limine No. 1
Defendant seeks to exclude "[e]vidence of Plaintiff's acquittal or any other aspect of [his] underlying [state] criminal trial[,] " in which he was charged with battery on a correctional officer and resisting arrest. (Def.'s MIL No. 1 1:26-27, ECF No. 66; see also Pls.' Trial Brief 3:3-9, ECF No. 64 (describing Plaintiff's criminal charges) .) Defendant argues: "the results of Plaintiff's underlying criminal case (i.e. acquittal) are simply not relevant to the sole [excessive force claim] remaining for trial[,] and any reference to such a disposition would be unduly prejudicial and misleading to the jury." (Id. at 3:16-19.) Defendant contends:
It has long been held that "evidence of an acquittal is not generally admissible in a subsequent civil action between the same parties since it constitutes a negative sort of conclusion lodged in a finding of failure of the prosecution to sustain the burden of proof beyond a reasonable doubt."(Id. at 3:22-26 (quoting Borunda v. Richmond, 885 F.2d 1384, 1387 (9th Cir. 1988)).)
Plaintiff counters that his acquittal is "directly relevant to the issue of excessive use of force . . . because whether Plaintiff was found to have resisted arrest is a relevant factor to the reasonableness inquiry regarding the use of force." (Pl.'s Opp'n 2:15-17, 3:8-10, ECF No. 77.) Plaintiff also rejoins the acquittal is relevant to the issue of damages "because Plaintiff incurred attorney fees and cost[s] to defend the charge of resisting arrest[, and i]f the force used against him is found to be excessive, he should be allowed to recover his damages of attorney's fees expended to defend the criminal trial that resulted in acquittal." (Id. at 2:18-22.) Plaintiff asserts:
If the jury determines that the amount of force used by Defendant was objectively unreasonable under the totality of the circumstances, then it would invalidate the arrest. It would have prevented the prosecution of the Plaintiff, because a conviction for resisting arrest under §
148(a) (1) may be lawfully obtained only if the officers do not use excessive force in the course of making that arrest. Smith[ v. City of Hemet, 394 F.3d [689,] 696 (9th Cir. 2005). Plaintiff should therefore have the opportunity to prove any damages related to defending that prosecution.(Id. at 4:4-11.)
Plaintiff further counters that "to leave the issue uncertain of whether Plaintiff was convicted of resisting arrest would cause [Plaintiff] undue prejudice." (Id. at 2:17-18.) Plaintiff argues:
Defendant has indicated . . . he will be requesting a special jury instruction to inform the jury that Defendant had probable cause for the arrest to seek to avoid prejudice to Defendant due to uncertainty of the outcome of the criminal matter. Likewise, to leave the issue uncertain of whether Plaintiff was convicted of resisting arrest or acquitted would cause undue prejudice to the Plaintiff. The jury can be informed that Defendant had probable cause for arrest, but that issue is separate and apart from, and has no bearing on the fact that Plaintiff was acquitted of resisting arrest. The jury should be informed of both.(Id. at 3:12-18.)
Defendant replies that Plaintiff's argument concerning the acquittal's relevance to damages fails since the "Court has already ruled that the arrest of Plaintiff was supported by probable cause." (Def.'s Reply 1:27-2:8, ECF No. 79.) Defendant argues:
Plaintiff attempts to mitigate the ruling of Borunda v. Richmond . . . by suggesting that the district court allowed the underlying acquittal for the limited purpose of showing damages in the form of attorney's fees. While this may be true (with a limiting instruction), the big difference between Borunda and the instant case is that the plaintiff in Borunda retained a false
arrest claim - as noted above, Plaintiff in the instant case does not. Thus, the Ninth Circuit's overriding holding of Borunda is that acquittals in underlying criminal cases are inadmissible in a subsequent civil case.(Id. at 3:3-10.) Defendant further replies that he has "no intention of introducing evidence that Plaintiff was charged with 'resisting arrest' in addition to the 'battery on a correctional officer' which led to his arrest." (Id. at 2:4-6.) Defendant contends the "Court has ruled that Officer Herminghaus had probable cause to arrest Plaintiff . . . and that's all the jury needs to know." (Id. at 2:15-16.)
Plaintiff has not shown that his acquittal is relevant to damages on his excessive force claim, and assuming arguendo its admission is relevant to the use of force issue, any "probative value is substantially outweighed by a danger of . . . unfair prejudice . . . [and/or] misleading the jury." Fed. R. Evid. 403. "Evidence of an acquittal is not generally admissible in a subsequent civil action between the same parties since it constitutes a 'negative sort of conclusion lodged in a finding of failure of the prosecution to sustain the burden of proof beyond a reasonable doubt.'" Borunda, 885 F.2d at 1387 (quoting S. Gard, 2 Jones on Evidence, § 12:25, p. 391 (6th ed. 1972)); see also Mullins v. City of Philadelphia, 287 F. App'x 201, 203-04 (3rd Cir. 2008) ( "The standards of proof in the criminal case and in this civil case are different.") (affirming denial of the plaintiff's motion to admit evidence of his acquittal in subsequent civil rights action).
In light of Defendant's Rule 403 arguments, this motion is granted.
Motion in Limine No. 2
Defendant moves to exclude "any and all post-incident photos purporting to depict Plaintiff's positioning at [the] scene," arguing the photographs lack foundation and are unduly prejudicial. (Def.'s MIL No. 2 1:26-27, ECF No. 67.) Defendant argues:
At his deposition, Plaintiff first presented photographs which he purported to represent himself at the scene of this incident allegedly taken by his criminal defense attorney over a year after the incident giving rise to this case. Of course, the evidentiary problems with such photos minimally include:(Id. at 3:12-25.)
• Plaintiff cannot establish that the scene was not altered from the time of the actual incident and the time that these photos were taken[,]
• The person purportedly taking the photographs (i.e. Plaintiff's criminal defense attorney) is apparently unavailable (and not listed as a witness) to authenticate such photos[,]
• In the photos, Plaintiff is conveniently wearing a shirt and tie which is not the casual clothing he was wearing at the time of the incident[, and]
• The photographs improperly suggest that Plaintiff's injury is somehow physically aligned with a bracket on a store shelf without any expert testimony to establish such a theory.
Plaintiff counters that "the photos can be [authenticated] and lack any prejudice to the Defendant." (Pl.'s Opp'n 2:9-10, ECF No. 78.) Plaintiff contends:
Plaintiff will be available for testimony at trial to authenticate that he is the one in the photos. He can substantiate when and where the photos were taken, and who they were taken by. Plaintiff can authenticate that the photo is what he claims it to be, a bracket on a shelf at the time the photo was taken. Additionally, Defendant has the store manager on his witness list. The manager can testify as to whether brackets like the one in the photo were used on the shelves and whether there have been ones like it on the isle where Plaintiff was arrested. The photo is circumstantial evidence of what caused the injury. The jury is free to assign weight to that evidence as the trier of fact.(Id. at 2:18-27.) Plaintiff further rejoins that he "will provide the emergency room treating physician as a witness who can establish the nature of the injury and the type of object that may have caused the injury." (Id. at 3:9-10.)
A sufficient factual context has not been presented for an in limine ruling on this motion. Dated: January 13, 2015
/s/_________
GARLAND E. BURRELL, JR.
Senior United States District Judge