Ochoa v. County of Kern et al

Filing 96

ORDER GRANTING 60 Motion in Limine;ORDER GRANTING 61 Motion in Limine; ORDER GRANTING IN PART AND DENYING IN PART 62 Motion in Limine;ORDER DENYING 63 Motion in Limine; ORDER GRANTING 64 Motion in Limine; ORDER RESERVED 65 Motion in Limine; ORDER GRANTING 66 Motion in Limine; ORDER GRANTING 67 Motion in Limine; ORDER DENYING 68 Motion in Limine; ORDER GRANTING 69 Motion in Limine; ORDER RESERVED 70 Motion in Limine; ORDER RESERVED 71 Motion in Limine, signed by District Judge Jennifer L. Thurston on 9/14/2022. (Martin-Gill, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ALEJANDRO OCHOA, an individual, 12 13 14 15 16 17 18 Plaintiff, v. No. 1:18-cv-01599-JLT-BAK ORDER ON MOTIONS IN LIMINE (Docs. 60-71) COUNTY OF KERN, a municipal entity; DEPUTY BROCK (Badge No. 201765), an individual; DEPUTY ANDREW BASSETT (Badge No. 202312), an individual; and DOES 1 through 10, inclusive, Defendants. 19 20 This case concerns Alejandro Ochoa’s claims under 42 U.S.C. § 1983, battery under 21 California law, and negligence under California law arising out of an incident between Plaintiff 22 and Deputies Brock and Bassett while acting under color of state law and in the course and scope 23 of employment with Defendant County of Kern. (Doc. 1.) In what Defendants contend was an 24 attempt to execute an arrest warrant, Plaintiff alleges Deputies Brock and Bassett negligently 25 assessed the circumstances presented to them and subjected Plaintiff to unreasonable and 26 excessive force, causing him severe injuries. (Id.) 27 28 The parties have filed motions in limine for resolution before trial. (Docs. 60-71.) The Court finds the matters suitable for decision without oral argument pursuant to Local Rule 230(g) 1 1 and General Order 618. Accordingly, the hearing set for October 14, 2022 at 1:30 p.m. before the 2 undersigned is VACATED. For the reasons set forth below, the Court rules on the motions as 3 follows. 4 I. 5 Legal Standards Governing Motions in Limine “Although the Federal Rules of Evidence do not explicitly authorize in limine rulings, the 6 practice has developed pursuant to the district court’s inherent authority to manage the course of 7 trials.” Luce v. United States, 469 U.S. 38, 40 n. 2 (1984). The Ninth Circuit explained motions in 8 limine allow parties to resolve evidentiary disputes ahead of trial “before attempted use of the 9 evidence before the jury.” United States v. Heller, 551 F.3d 1108, 1111-12 (9th Cir. 2009). 10 Importantly, motions in limine seeking the exclusion of broad categories of evidence are 11 disfavored. See Sperberg v. Goodyear Tire and Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975). 12 The Court “is almost always better situated during the actual trial to assess the value and utility of 13 evidence.” Wilkins v. Kmart Corp., 487 F. Supp. 2d 1216, 1218 (D. Kan. 2007). The Sixth Circuit 14 explained, “[A] better practice is to deal with questions of admissibility of evidence as they arise 15 [in trial]” as opposed to ruling on a motion in limine. Sperberg, 519 F.2d at 712. Nevertheless, 16 motions in limine are “an important tool available to the trial judge to ensure the expeditious and 17 evenhanded management of the trial proceedings.” Jonasson v. Lutheran Child & Family 18 Services, 115 F.3d 436, 440 (7th Cir. 1997). 19 “[A] motion in limine should not be used to resolve factual disputes or weigh evidence,” 20 C & E Services, Inc. v. Ashland Inc., 539 F. Supp. 2d 316, 323 (D. D.C. 2008), because that is the 21 province of the jury. See Reeves v. Sanderson Plumbing Products, 530 U.S. 133, 150 (2000). The 22 Court will bar use of the evidence in question only if the moving party establishes that the 23 evidence clearly is not admissible for any valid purpose. Jonasson, 115 F. 3d at 440. 24 For example, under the Federal Rules of Evidence, any evidence that is not relevant is not 25 admissible. Fed. R. Evid. 402. To determine that evidence is relevant, the Court must find “(a) it 26 has a tendency to make a fact more or less probable than it would be without the evidence; and 27 (b) the fact is of consequence in determining the action.” Fed. R. Evid. 401. Nevertheless, 28 relevant evidence may be excluded “if its probative value is substantially outweighed by the 2 1 danger of one or more of the following: unfair prejudice, confusing the issues, misleading the 2 jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 3 403. 4 The rulings on the motions in limine made below do not preclude either party from raising 5 the admissibility of the evidence discussed herein, if the evidence adduced at trial demonstrates a 6 change of circumstances that would make the evidence admissible, such as for impeachment or if 7 the opponent opens the door to allow for its admissibility. In this event, the proponent of the 8 evidence SHALL raise the issue with the Court outside the presence of the jury. Finally, the 9 rulings made here are binding on all parties and their witnesses and not merely on the moving 10 party. 11 II. Plaintiff’s Motion in Limine 12 A. No. 1: Motion to Exclude or Limit Evidence of Plaintiff’s Criminal History and 13 Other “Bad Acts” (Doc. 70) 14 Plaintiff seeks to exclude or limit evidence of his “convictions, charges, and arrests, 15 unrelated law enforcement contacts, and other ‘bad acts’ pursuant to Federal Rules of Evidence 16 402, 403, 404, and 609. (Doc. 70 at 3, 6-7.) Plaintiff argues his criminal history and other “bad 17 acts” are irrelevant and unfairly prejudicial. (Id. at 4-6.) The evidence Plaintiff seeks to exclude 18 includes, “but is not limited to”: 19 • False Imprisonment with Violence (Felony – 02/09/2018); 20 • Infliction of Corporal Injury on Spouse or Cohabitant (Felony – 04/08/2016); 21 • Taking Vehicle Without Owner’s Consent (Felony - 01/04/2013); 22 • Infliction of Corporal Injury on Spouse or Cohabitant (Felony – 09/08/2012); 23 • Misdemeanor convictions; 24 • Any felony conviction over 10 years old; and 25 • Any arrests and/or criminal prosecutions not resulting in conviction. 26 (Id. at 3-4.) Defendants counter that the evidence is relevant and admissible under Rules 404(b) 27 and 609. (See Doc. 77.) 28 /// 3 1 1. 2 Character evidence under 404(b) Plaintiff contends the admission of evidence concerning his criminal history and other 3 “bad acts” would “serve the purpose expressly prohibited by Fed. R. Evid. 404 because it would 4 tend to indicate that Plaintiff had a criminal character and acted in conformity with that criminal 5 character on the date of the incident.” (Doc. 70 at 7.) Plaintiff asserts that “to the extent” 6 Defendants attempt to introduce such evidence, the danger of unfair prejudice would substantially 7 outweigh the probative value. (Id.) 8 Federal Rules of Evidence 404(a) provides “[e]vidence of a person’s character or 9 character trait is not admissible to prove that on a particular occasion the person acted in 10 accordance with the character or trait.” Fed. R. Evid. 404(a). More specifically, Rule 404(b) 11 provides that “[e]vidence of a crime, wrong, or other act is not admissible to prove a person’s 12 character in order to show that on a particular occasion the person acted in accordance with the 13 character.” Fed. R. Evid. 404(b). Rule 404(b) provides, however, that prior acts evidence “may be 14 admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, 15 knowledge, identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b). Defendants argue Plaintiff’s prior conduct is admissible to “evidence his motive, intent, 16 17 opportunity, plan[,] knowledge[,] or lack of mistake.” (Doc. 77 at 6.) However, Defendants fail to 18 identify which crimes, wrongs, or acts they seek to introduce and which of the exceptions apply. 19 On the other hand, the defense argues1 that information about Plaintiff’s criminal history was 20 provided to the deputies by dispatch before they arrived at the scene and that this information 21 bore on the action they took that day. To the extent that the defense establishes specific 22 foundation in advance of offering evidence about these prior acts, which demonstrates that this 23 information impacted their relevant conduct, the evidence, in general, may be admitted.2 As such, 24 the Court RESERVES ruling on this topic until a relevant time. 25 /// 26 Defendants appear to assert that they were informed of Plaintiff’s warrant and “similar criminal convictions” and other information. (Doc. 77 at 2-3.) However, exactly what they were told has not been explained. 2 See Headnote B. 1 27 28 4 1 2. Impeachment evidence under 609 2 Though conceding that prior felony convictions are admissible for impeachment purposes 3 under Rule 609 of the Federal Rules of Evidence, Plaintiff asserts that juvenile convictions, 4 misdemeanor convictions, arrests not resulting in conviction, felony convictions more than ten 5 years old, and offenses not involving proof of an admission of a dishonest act or false statement 6 are not admissible impeachment evidence. (Doc. 70 at 6-7.) Rule 609 provides that a testifying witness’s character for truthfulness may be attacked by 7 8 evidence of a criminal conviction for a crime that is punishable by imprisonment for more than 9 one year and for any crime proving a dishonest act or false statement. Fed. R. Evid. 609(a). The 10 rule limits the use of convictions where it has been more than 10 years since the conviction or 11 release from confinement for it, whichever is later. Fed. R. Evid. 609(b). “[A]bsent exceptional 12 circumstances, evidence of a prior conviction admitted for impeachment purposes may not 13 include collateral details and circumstances attendant upon the conviction." United States v. Sine, 14 493 F.3d 1021, 1036 n. 14 (9th Cir. 2007) (quoting U.S. v. Rubio, 727 F.2d 786, 797 n.5 (9th Cir. 15 1983)). “Generally, only the prior conviction, its general nature, and punishment of felony range 16 are fair game for testing the [witness’s] credibility." United States v. Osazuwa, 564 F.3d 1169, 17 1175 (9th Cir. 2009) (quoting U.S. v. Albers, 93 F.3d 1469, 1480 (10th Cir. 1996)) (quoted text in 18 both decisions referred to “defendant’s credibility” specifically). 19 However, in their supplemental brief, Defendants clarify that prior felony convictions are 20 admissible under Rule 609. (Doc. 95 at 9.) Thus, the Court presumes Defendants will only seek to 21 introduce prior felony convictions consistent with Rule 609, if at all. If Plaintiff chooses to testify 22 at trial, subject to Rule 403, only prior felony convictions less than ten years old are admissible 23 for impeachment purposes. Therefore, to the extent Plaintiff seeks to exclude, pursuant to Rule 24 609, all of Plaintiff’s criminal history, the motion is GRANTED in PART and DENIED in 25 PART. 26 B. No. 2: Motion to Exclude or Limit Evidence of 911 Calls Not Heard by Defendant 27 Deputies (Doc. 71) 28 Plaintiff seeks to exclude evidence of 911 calls concerning the incident that was not heard 5 1 by Deputies Brock and Bassett. (Doc. 71.)3 Plaintiff contends that “[t]he main issues in this case 2 concern the reasonableness of the involve[d] deputies’ uses of force against Plaintiff.” (Doc. 71 at 3 3.) Plaintiff further asserts that facts not known to Deputies Brock and Bassett, who were on the 4 scene, are irrelevant to the reasonableness inquiry. (Id.) According to Plaintiff, evidence of the 5 911 calls falls into this category and should be excluded under Federal Rule of Evidence 403.4 6 The Deputies’ conduct is evaluated from the perspective of a reasonable officer on the 7 scene regardless of the actual motivation of the particular officer. Graham v. Connor, 490 U.S. 8 386, 397 (1989). “Subjective intentions play no role in ordinary, probable-cause Fourth 9 Amendment analysis.” Whren v. United States, 517 U.S. 806, 806 (1996). Instead, liability may 10 not attach unless his actions were objectively unreasonable, regardless of the officer’s motivation. 11 Ashcroft v. al-Kidd, 563 U.S. 731, 736 (2011) (“the Fourth Amendment regulates conduct rather 12 than thoughts”). 13 When evaluating reasonableness, the fact finder “must make this determination from the 14 perspective of a reasonable officer on the scene, including what the officer knew at the time, not 15 with the 20/20 vision of hindsight.” Kingsley v. Hendrickson, 756 U.S. 389, 397 (2015). Thus, in 16 general, the fact finder “cannot consider evidence of which the officer[] [was] unaware.” See 17 Glenn v. Washington County, 673 F.3d 864, 872-74, 873 n. 8 (9th Cir. 2011). On the other hand, 18 what is known to the officer at the time bears on the facts and circumstances of the event. 19 Ruvalcaba v. City of Los Angeles, 64 F.3d 1323, 1328 (9th Cir. 1995). Thus, any evidence known 20 to the Deputies may be admissible, but information not known to them may not be admitted. 21 However, exactly what information was known to the deputies is unclear. In their opposition, 22 Defendants contend that information about Plaintiff and the concerns of Plaintiff’s estranged wife 23 and her daughter were conveyed to 911 operators who in turn conveyed the information to the 24 deputies “and/or others on scene[] passed the information to the Deputies.” (Doc. 78 at 4.) In their 25 26 27 28 3 Plaintiff does not specify whether he is seeking exclusion of the actual 911 call recordings or if he is seeking exclusion of any evidence relayed to the deputies from the calls. For sake of analysis, the Court assumes the latter. 4 Although Plaintiff requests exclusion under Rule 403, which is a necessary consideration, both parties’ arguments relate to relevance under Rules 401 and 402, which is how the Court will construe the motion. (See generally Docs. 71, 78.) Evidence is relevant if “it has any tendency to make a fact more or less probable than it would be without the evidence” and that fact “is of consequence in determining the action.” Fed. R. Evid. 401. Only relevant evidence is admissible. Fed. R. Evid. 402. 6 1 supplemental brief, Defendants further assert that while at the scene, they spoke with other 2 deputies, witnesses, and hostages prior to the incident. (Id.) According to Defendants, during the 3 the “contacts, conversations[,] and material reviews, including from 911 calls, [they] learned a 4 considerable amount of information regarding Plaintiff, his past, including prior criminal history 5 and bad acts, and that he was holding hostages in the residence.” (Id., emphasis added.) 6 Based upon the facts provided, it is unclear the information that was relayed to the 7 deputies and what information they knew. Defendants also do not clarify the information the 8 deputies received directly from the 911 calls as opposed to from conversations with other 9 deputies, witnesses, and hostages. Neither do they assert they personally listened to the 911 calls 10 prior to the incident. Thus, evidence of the 911 calls may be relevant, subject to Rule 403. 11 However, the Court cannot rule on this motion unless and until this matter is clarified at trial. 12 Accordingly, the Court RESERVES ruling upon the admissibility of the 911 call evidence.5 13 III. Defendants’ Motions in Limine 14 A. No. 1: Motion to Exclude Evidence of Past Bad Acts of Any Individual Defendant 15 and/or Any Other Lawsuits Against the County of Kern, or Any Law Enforcement 16 Witness (Doc. 60) 17 Defendants anticipate that Plaintiff, Plaintiff’s witnesses, and/or their experts may testify 18 regarding prior actions of Deputies Brock and/or Bassett, and/or prior lawsuits against any 19 Defendants. (Doc. 60 at 1.) Defendants also anticipate that the Deputies may be questioned at trial 20 about their use of force on occasions prior to the incident in question. (Id. at 2.) As such, 21 Defendants seek to exclude the introduction of any character evidence of the Deputies, including 22 their prior actions in their capacities as Sheriff’s deputies. (Id.) Defendants claim the only purpose 23 of soliciting such testimony would be to attempt to convince the jury that the Deputies had a 24 character trait for the use of force and acted in conformity with that character trait in relation to 25 Plaintiff, which is prohibited under Federal Rules of Evidence 404(a) and 404(b)(1). (Id.) Plaintiff 26 does not oppose this request. The motion is GRANTED. 27 28 5 To the extent Defendants make an informal request for a hearing (see Doc. 95 at 12), the Court declines to address this request. Any further evidentiary issues may be raised at trial. 7 1 B. No. 2: Motion to Exclude Evidence that Is Protected by the California Penal Code 2 §§ 832.7 and 832.8 and California Evidence Code §§ 1040 and 1043 and the Officer’s 3 Right to Privacy (Doc. 61) 4 Defendants request the exclusion of any questioning and testimony regarding the 5 personnel matters, prior complaints concerning job performance, or prior disciplinary issues 6 pursuant to the “official information” privilege and California Penal Code § 832.7. (Doc. 61 at 1- 7 3.) Further, Defendants request the exclusion of such questioning and testimony regarding any 8 County Sheriff Deputy who testifies in this matter. (Id. at 2.) Plaintiff does not oppose this 9 request. The motion is GRANTED. 10 C. No. 3: Motion to Preclude Testimony Regarding Opinions About What Plaintiff Felt 11 During the Incident (Doc. 62) 12 Defendants ask the Court to exclude any testimony from percipient witnesses that 13 describes what Plaintiff was feeling during the incident, such as his emotional distress, pain, and 14 suffering. (Doc. 62 at 1-2.) Defendants argue this testimony would invite improper lay opinion 15 because it calls for speculation. (Id. at 2.) Defendants also contend this testimony is unhelpful to 16 the jury because the jury can readily draw the necessary inferences and conclusions about how 17 Plaintiff felt, without the opinion of lay witnesses. (Id. at 1-2.); see Fed. R. Evid. 701. 18 Plaintiff’s opposition indicates he does not intend to offer percipient witness testimony 19 about his feelings, other than himself. Rather, Plaintiff states that “Plaintiff Ochoa intends to 20 provide testimony regarding his own experiences, observations, actions, and symptoms . . .” (Doc. 21 84 at 4 (emphasis added).) It is not clear that Defendants request also applies to Plaintiff, himself. 22 Even if it did, it is well settled law that a plaintiff may testify on his own behalf regarding his own 23 feelings, reactions, observations, and symptoms. (Id. at 3-4 citing Tobeler v. Colbin, 749 F. 830, 24 833 (9th Cir. 2014)); see also Stevenson v. Holland, 504 F. Supp. 3d 1107, 1121 (E.D. Cal. 2020) 25 (“But lay witnesses can testify as to perceived symptoms (i.e., what is felt, exhibited, or 26 experienced over time) and how a condition affects one's ability to function.”). Thus, to the extent 27 Defendants seek to exclude Plaintiff from testifying regarding his feelings and experience during 28 the incident, the motion is DENIED. To the extent Defendants seek to exclude other witnesses’ 8 1 from testifying about Plaintiff’s feelings, the Court GRANTS the motion. 2 Defendants also argue percipient witnesses should be precluded from offering opinions 3 about whether Plaintiff’s “actions and words indicate he was in pain or was resisting law 4 enforcement” because they embrace ultimate issues of fact. (Doc. 63 at 3.) In response, Plaintiff 5 contends Defendants’ argument is “unclear” and argues the issue of whether Plaintiff was 6 “resisting law enforcement” remains a disputed fact. (Doc. 84 at 4.) 7 A lay witness may provide opinions rationally based on their perception when helpful to 8 the determination of a fact at issue. Fed. R. Evid. 701. A lay witness may also testify “as to an 9 ultimate issue of fact [if their] testimony is otherwise admissible.” United States v. Thomas, 2021 10 WL 4061109, at *1 (9th Cir. Sept. 7, 2021) (quoting United States v. Crawford, 239 F.3d 1086, 11 1090 (9th Cir. 2001) (alternation in original). “The lay witness may not, however, testify as to a 12 legal conclusion.” Crawford, 239 F.3d at 1090. Thus, lay witnesses may testify as to their 13 percipient knowledge and their lay opinions rationally related to them, but they may not speculate 14 or offer any legal conclusion. To the extent Defendants’ motion seeks to prohibit Plaintiff from 15 offering these opinions, the portion of the motion is DENIED. 16 D. No. 4: Motion to Exclude Evidence and Argument That a Lesser Amount of Force 17 Would Have Controlled Plaintiff (Doc. 63) 18 Defendants seek to exclude evidence and argument that Deputies Brock and Bassett could 19 have taken less forceful actions to control Plaintiff. (Doc. 63 at 1.) Defendants argue this evidence 20 is speculative and irrelevant because the relevant question is “whether the actions Brock and 21 Bassett took were lawful, not whether they could have acted in some manner the Plaintiff deems 22 more reasonable.” (Id.) Plaintiff opposes and asserts that he intends to present evidence of “less 23 violent and less injurious force options” that were available to Deputies Brock and Bassett, 24 through expert testimony and tactical guidelines. (Doc. 85 at 3-4.) 25 In cases involving allegations of excessive force under the Fourth Amendment, an 26 objective reasonableness test applies and considers a totality of the circumstances. Graham v. 27 Connor, 490 U.S. 386, 395-96 (1989). Under the totality of the circumstances, the availability of 28 less forceful or intrusive means to detain or arrest the plaintiff is relevant to the analysis. 9 1 Williamson v. City of Nat’l City, 23 F.4th 1146, 1153 (9th Cir. 2022). Factors for evaluating 2 excessive force expressly include “the availability of less intrusive alternatives to the force 3 employed and whether proper warnings were given.” Id. Though officers need not “avail 4 themselves of the least intrusive means of responding to an exigent situation,” Scott v. Henrich, 5 39 F.3d 912, 915 (9th Cir. 1994), the availability of less intrusive methods or feasible alternatives 6 factors into the determination of excessive force. Vos v. City of Newport Beach, 892 F.3d 1024, 7 1033 (9th Cir. 2018); see also Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005). 8 9 Expert testimony regarding less intrusive alternatives and standards for well-trained officers are regularly relied upon to demonstrate the range of reasonable methods used by 10 officers. See, e.g., Chien Van Bui v. City & Cnty. of San Francisco, 699 F. App’x 614, 615 (9th 11 Cir. 2017) (holding the “expert testimony regarding specific less-intrusive methods of subduing 12 [plaintiff]” could support the conclusion that the officers applied unreasonable force); Colbert v. 13 County Of Kern, 2015 WL 8214204, at *2 (E.D. Cal. Dec. 8, 2015) (allowing plaintiff’s expert to 14 testify as to the “forceful alternatives” available to the officers and “reasonably well-trained 15 officers are taught regarding when they may use force”). This evidence may be considered when 16 evaluating whether the force used was reasonable. As the defense points out, the question is not 17 whether there were other reasonable means available, but whether the actions the officer did take 18 were reasonable. 19 Defendants further argue any evidence regarding lesser force is speculative. (Doc. 63 at 20 2.) Clearly, speculation is not permitted. However, what is permitted is how reasonably well- 21 trained officers are to respond to the circumstances the officers confronted. Defendants, however, 22 have provided no explanation or legal authority to support the contention that testimony about 23 less intrusive or forceful means is categorically speculative. Indeed, as noted above, Courts 24 regularly admit this type of evidence to analyze excessive force. See, e.g., Williamson, 23 F.4th at 25 1153. Experts often answer hypothetical questions related to forceful responses that well-trained 26 officers are taught to use in a given set of circumstances. See Colbert, 2015 WL 8214204, at *2. 27 Accordingly, the Court DENIES Defendants’ motion to exclude evidence of lesser force. 28 /// 10 1 E. No. 5: Motion to Exclude Evidence of Other Bad Acts, Use of Force Incidents, and 2 Personnel Actions Relating to Deputies Brock and Bassett (Doc. 64) 3 Defendants anticipate that Plaintiff will attempt to use improper character evidence in the 4 form of prior bad acts, other use of force incidents, and personal actions involving Deputies 5 Brock and/or Bassett. (Doc. 64 at 1-2.) As such, Defendants request the exclusion of this evidence 6 or any other evidence of prior bad acts pursuant to Federal Rule of Evidence 404. (Id. at 2.) 7 Because Plaintiff has not opposed this request, the motion is GRANTED. 8 F. 9 No. 6: Motion to Exclude Graphic and Inflammatory Photos of Plaintiff (Doc. 65) Defendants anticipate that Plaintiff will attempt to introduce photographs of Plaintiff that 10 are graphic and inflammatory in nature which the jury may find gruesome and emotionally 11 disturbing. (Doc. 65 at 1.) Defendants contend the photos will not inform the jury about how the 12 incident occurred or the reasonableness of force used by Deputies Brock and/or Bassett, and their 13 only purpose is to inflame the jury, causing unfair prejudice to the Defendants. (Id. at 1-2.) 14 Plaintiff argues at least some photographs of his injuries, in the immediate aftermath of the 15 incident, are relevant to the issue of damages. (Doc. 86 at 3-4.) Plaintiff requests that the Court 16 defer ruling on the motion because the parties may be able to reach an agreement as to which 17 photos will be admitted. (Id.) According to Plaintiff, if the parties are unable to reach an 18 agreement without judicial intervention, they will submit individual photos for ruling by the 19 Court. (Id.) Accordingly, the ruling on the Defendants’ motion in limine is RESERVED. In the 20 meanwhile, counsel SHALL meet and confer on this topic. 21 G. No. 7: Motion to Preclude Improper Comments That Argue, Suggest or Imply to the 22 Jury That They Should Send a Message with Their Verdict, or That They Are the 23 Protectors of the Community (Doc. 66) 24 Defendants anticipate Plaintiff’s counsel will, both in voir dire and throughout the course 25 of trial, attempt to argue to the prospective jurors and jury that they have the power to improve 26 the safety of the community by rendering a verdict that will reduce or eliminate dangerous 27 conduct, such as that alleged against Defendants, which they colloquially term the “Reptile 28 Theory.” (Doc. 66 at 2.) Defendants contend the Reptile Theory seeks to appeal to the jurors’ 11 1 self-interest about the best interests of the community rather than the jurors’ impartial judgments 2 predicated on the evidence. (Id.) Defendants request the preclusion of these “improper 3 comments”. (See id. at 1.) Plaintiff has not opposed this request. The motion is GRANTED. 4 H. 5 No. 8: Motion to Exclude Non-Party Witnesses from the Courtroom (Doc. 67) Defendants request the exclusion of all non-party witnesses from being present in the 6 courtroom during all trial-related proceedings pursuant to Federal Rule of Evidence 615. (Doc. 67 7 at 2.) Plaintiff has not opposed this request. The motion is GRANTED. 8 I. 9 No. 9: Motion to Preclude Expert Witnesses from Testifying About (1) Credibility of Witnesses, (2) Ultimate Facts or Legal Conclusions, or (3) Any Work Done After 10 Their Depositions/Opinions Not Disclosed During Depositions (Doc. 68) 11 Defendants request that expert witnesses be precluded from testifying as to the credibility 12 of other witnesses pursuant to Federal Rules of Evidence 401, 403, and 702. (Doc. 68 at 2.) 13 Defendants also seek to preclude Plaintiff from proffering opinions about ultimate facts of the 14 case or legal conclusions pursuant to Federal Rule of Evidence 702. (Id. at 3.) Finally, Defendants 15 request an order preventing any new opinions or basis of opinions by Plaintiff’s experts, which 16 were not provided in their deposition. (Id.) 17 Plaintiff does not oppose the request to exclude expert testimony regarding the credibility 18 of other witnesses or regarding new opinions or basis of opinions not provided in their deposition. 19 (See generally Doc. 93.) However, Plaintiff opposes Defendants’ request to exclude expert 20 opinions on ultimate issues of fact because he argues police experts may testify about the ultimate 21 issues of the reasonableness of excessive force, so long as they do not give legal opinions or legal 22 conclusions. (Id. at 3.) 23 Under Federal Rule of Evidence 704(a), a witness may proffer an opinion that “embraces 24 an ultimate issue” of fact. The 1972 Advisory Committee for the Federal Rules of Evidence 25 recognized that this rule expressly abolishes the common law “ultimate issue” rule. See United 26 States v. Diaz, 876 F.3d 1194, 1196 (9th Cir. 2017). However, an expert witness may not opine 27 on ultimate issues of law or “tell the jury what result to reach.” Id. In the context of excessive 28 force cases, a police expert may discuss “policies and professional standards of practice.” 12 1 Valiavicharska v. Celaya, 2012 U.S. Dist. LEXIS 8191, *9 (N.D. Cal. Jan. 24, 2012). The expert 2 may not, however, opine on whether the “defendants’ use of force was reasonable under the 3 circumstances” because this “is just such an opinion on an ultimate issue of law that risks 4 usurping the jury’s province.” Sanfilippo v. Foster, 2012 U.S. Dist. LEXIS 119898, *6-7 (E.D. 5 Cal. Aug. 23, 2012) (internal quotation marks and citations omitted); see also Jimenez v. 6 Sambrano, 2009 WL 2382622, at *2 (S.D. Cal. July 31, 2009). In order “to avoid invading the 7 province of the jury,” expert opinion that applies particular facts to an instance of excessive force 8 is best done through hypothetical questions. Valiavicharska, 2012 U.S. Dist. LEXIS 8191, at *9 9 (quoting Engman v. City of Ontario, 2011 WL 2463178 at *7 (C.D. Cal. June 20, 2011). 10 In accordance with Ninth Circuit standards, Plaintiff’s expert may testify regarding 11 general police policies and professional standards of practice. The expert may not opine on 12 whether the specific circumstances of this case amount to excessive or reasonable force. If 13 Plaintiff wishes for the expert to proffer an opinion related to particular circumstances involving 14 excessive force, he must do so in the form of hypothetical questions. Thus, the Court DENIES 15 this motion. 16 J. No. 10: Motion to Preclude Evidence or Testimony of the Potential Existence of 17 Insurance for, or the Wealth of, the County of Kern (Doc. 69) 18 Defendants anticipate that Plaintiff may attempt to present or elicit evidence concerning 19 the existence or potential existence of insurance coverage for, or the wealth of, Defendant County 20 of Kern, or otherwise refer to, comment upon, or present argument about said facts and 21 circumstances. (Doc. 69 at 1-2.) Defendants also anticipate that Plaintiff may elicit testimony or 22 make argument about the insurance coverage and insurance protection provided to the County of 23 Kern. (Id. at 2.) Defendants assert introduction of this information, or any comment thereon, may 24 be highly prejudicial to Defendants’ case and should be precluded as irrelevant under Federal 25 Rule of Evidence 402. (Id.) Thus, Defendants request the preclusion of such testimony. (Id. at 3.) 26 Plaintiff has not opposed this request. The motion is GRANTED. 27 /// 28 /// 13 1 IV. Order 2 Based upon the foregoing, the Court ORDERS: 3 1. Plaintiff’s motion in limine number 1 (Doc. 70) is RESERVED. 4 2. Plaintiff’s motion in limine number 2 (Doc. 71) is RESERVED. 5 3. Defendants’ motion in limine number 1 (Doc. 60) is GRANTED. 6 4. Defendants’ motion in limine number 2 (Doc. 61) is GRANTED. 7 5. Defendants’ motion in limine number 3 (Doc. 62) is DENIED in part and 8 GRANTED in part, as set forth above. 9 6. Defendants’ motion in limine number 4 (Doc. 63) is DENIED. 10 7. Defendants’ motion in limine number 5 (Doc. 64) is GRANTED. 11 8. Defendants’ motion in limine number 6 (Doc. 65) is RESERVED. 12 9. Defendants’ motion in limine number 7 (Doc. 66) is GRANTED. 13 10. Defendants’ motion in limine number 8 (Doc. 67) is GRANTED. 14 11. Defendants’ motion in limine number 9 (Doc. 68) is DENIED. 15 12. Defendants’ motion in limine number 10 (Doc. 69) is GRANTED. 16 17 18 IT IS SO ORDERED. Dated: September 14, 2022 19 20 21 22 23 24 25 26 27 28 14

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