Hesselbein v. City of Elk Grove et al
Filing
108
MEMORANDUM AND ORDER signed by Senior Judge William B. Shubb on 3/9/2016 re 99 Plaintiff's MOTION for NEW TRIAL: IT IS ORDERED that 99 Plaintiffs Renewed Motion for a Judgment as a Matter of Law be, and the same hereby is, DENIED; and [9 9] Plaintiffs Motion for a New Trial be, and the same hereby is, GRANTED. The Clerk is instructed to vacate the 94 Judgment of 11/18/2015 and this matter is set for a Status Conference on 3/28/2016 at 01:30 PM in Courtroom 5 (WBS) before Senior Judge William B. Shubb to set a new trial date. cc: Sac Ops Supvsr. (Kirksey Smith, K)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JOHN HESSELBEIN,
Plaintiff,
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CIV. NO. 2:11-2157 WBS AC
MEMORANDUM AND ORDER
v.
PAUL BECKHAM,
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Defendant.
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After a four-day jury trial, the jury returned a
verdict in favor of defendant Elk Grove Police Officer Paul
Beckham on plaintiff John Hesselbein’s 42 U.S.C. § 1983 claim for
excessive force in violation of the Fourth Amendment.
Plaintiff
now renews his motion for judgment as a matter of law pursuant to
Federal Rule of Civil Procedure 50(b) and, alternatively, moves
for a new trial under Rule 59.
I.
The Incident
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On January 30, 2011, plaintiff’s ex-wife called for
emergency assistance because of a domestic dispute.
The
information dispatched to the officers about the call indicated
that his ex-wife said plaintiff had been drinking and was on
parole for murder, which was later corrected to confirm that
plaintiff had been convicted of involuntary manslaughter.
at 154:19-25, 251:5-6.)
(Tr.
The officers were also informed that
plaintiff was associated with the Sac Town Crips street gang in
1994.
(Id. at 197:22-198:9.)
When defendant arrived at the
scene, plaintiff had voluntarily exited his home and walked into
the middle of the street at the demand of other officers.
at 156:8-157:5, 200:8-18.)
(Id.
Prior to plaintiff voluntarily
exiting his home, Officer Jimenez said he had seen plaintiff with
a gun, but none of the officers saw a gun in plaintiff’s hands
when he surrendered.
(Id. at 281:3-15.)
When plaintiff was kneeling in the street, Officer
Andrew Bornhoeft handcuffed plaintiff’s “wrists behind his back”
with his palms facing out and the back of his hands together.
(Id. at 127:8-13.)
He explained that handcuffing an individual
with his palms facing out makes it “harder for that person to
actually grab ahold of something,” including a weapon.
(Id. at
127:18-23.)
After handcuffing plaintiff and lifting him to a
standing position, Officer Bornhoeft searched him, which
defendant observed.
(Id. at 143:18-21, 200:19-201:2.)
During
trial, Officer Bornhoeft described the search he performed on
plaintiff as being consistent with his training.
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The search
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included checking the front, sides, and back of plaintiff’s
waistband.
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At the time Officer Bornhoeft
checked plaintiff’s waistband, he was aware of the possibility
that plaintiff might have had a weapon and knew that the
waistband is the “most commonplace for weapons to be concealed.”
(Id. at 134:23-24, 135:6-9.)
After searching plaintiff’s upper
body, Officer Bornhoeft proceeded to search his lower body,
including using a “bladed” technique to search plaintiff’s groin
area.
(Id. at 136:16-19, 137:9-24.)
Although Officer Bornhoeft
testified that his search of plaintiff was “rushed” and did not
include the “crack between [plaintiff’s] buttocks,” he “felt
confident that [his] search was thorough.”
(Id. at 139:7-16,
160:6-10.)
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(Id. at 134:14-17.)
Plaintiff was then placed in the back of the Unit 94
patrol car.
There was no evidence at trial that any of the
circumstances suggested that plaintiff could have found a weapon
in the backseat of that patrol car.
Officer Bornhoeft continued
to stand by Unit 94 and watch plaintiff, during which time
plaintiff “flopped” over so he was laying diagonally across the
back seat.
(Id. at 142:17-19, 143:16-17, 144:10-19, 188:14-150.)
In this position, the officers were able to observe plaintiff’s
handcuffed hands and the areas around the back of his waistband,
especially because plaintiff’s shirt was raised so that the skin
above his waistline was visible.
(Id. at 205:13-18.)
Neither
Officer Bornhoeft nor any other officer observed anything in
plaintiff’s hands or the outline of a firearm beneath plaintiff’s
clothing.
(Id. at 147:18-23, 172:21-25.)
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After plaintiff was placed in Unit 94, defendant
returned to his patrol car when he “heard some commotion” and saw
“Officer Robinson get out of the car, [with] his weapon drawn and
pointed to the back seat of” Unit 94.
Defendant testified that he heard Officer Robinson saying
something about plaintiff still having a gun and defendant
thought it was “possibl[e]” plaintiff had a gun.
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None of the officers, including defendant,
(See id. at 175:1-3, 181:25-182:5, 188:9-10.)
At this point, defendant returned to Unit 94 with his
assault rifle drawn and stood at the open door approximately five
feet from plaintiff.
(Id. at 146:22-147:4, 261:19-21.)
When
defendant arrived at the patrol car, plaintiff was making a
“shrugging” movement with his shoulders and other officers were
yelling at him to stop moving.
(Id. at 179:12-17, 263:15-3.)
Defendant explained that he “was there to provide cover while
[the officers] tried to formulate how [they] were going to get
[plaintiff] out of the vehicle.”
(Id. at 262:4-6.)
No plan,
however, was ever discussed.
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(Id. at 261:9-
heard plaintiff state that he intended or wanted to shoot anyone.
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(Id. at 260:17-21.)
With his assault rifle aimed at plaintiff’s head,
defendant instructed plaintiff to stop moving about two times and
then told plaintiff to stop moving or he would “peel [his]
grape.”
(Id. at 165:6-8.)
“shrugging” movement.
Plaintiff did not cease the
(Id. at 180:8-10, 206:4.)
According to
defendant, “[i]mmediately after [he] told [plaintiff] [he] was
going to peel his grape,” plaintiff looked at defendant and “made
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a final hard thrust down into the back of his pants.”
210:14-18.)
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Defendant shot plaintiff in the head less than one
second after defendant “completely lost sight of [plaintiff’s]
hands.”
(Id. at 187:23-25, 210:19-21, 213:3-5.)
Defendant
testified that he intended for the shot to be fatal and only
fired a single shot because he thought he had killed plaintiff.
(Id. at 181:18-19, 213:9-13, 267:19-25.)
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(Id. at
The time between when defendant returned to Unit 94 and
shot plaintiff was about one to two minutes and the lighting was
“pretty good” because of street lights and other officers’ use of
flashlights.
(Id. at 184:18-21, 202:4-7.)
Before shooting
plaintiff, defendant had a clear view of plaintiff’s hands, (id.
at 205:4-6), and never saw a gun or what he thought was a gun in
plaintiff’s hands or clothing, and none of the officers told
defendant that they had seen a gun in plaintiff’s hands after he
was searched.
205:19-21.)
(Id. at 182:8-18, 187:14-16, 188:6-8, 197:15-18,
Defendant also knew plaintiff had been searched
prior to being placed in the patrol car and believed he had been
searched for a weapon.
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(Id. at 196:11-14, 200:25-201:2, 264:15-
Defendant conceded that he did not have any reason to
believe that Officer Bornhoeft performed a poor search and that
“nothing [] jumped out at [him] at that time” as giving him
concern that plaintiff was not properly searched.
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(Id. 197:12-
Defendant also knew that plaintiff had
voluntarily surrendered and was under the influence of a
significant amount of alcohol.
(Id. at 200:16-18, 211:22-212:8.)
Defendant testified that he believed plaintiff posed an
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imminent threat of death or great bodily injury to himself and
the other officers because “there was some uncertainty as to
whether he still had a weapon” and plaintiff did not cease
“reaching into the back of his pants” when told to stop moving.
(Id. at 186:16-25.)
to be shot.”
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(Id. at 267:17-18.)
According to defendant, he
“perceived that [plaintiff] was trying to grab something out of
the back of his pants” and “it was possibly a gun.”
(Id. at
187:10-12.)
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Defendant claimed he “thought [he] was about
During the entire incident, defendant’s patrol car was
parked in the line of sight of Unit 94 and equipped with a video
camera.
(Id. at 235:18-22.)
Although part of the incident is
recorded, defendant manually turned off his video camera after
plaintiff was placed in Unit 94 even though department policy
required that recording continue until the arrestee had been
transported.
(Id. at 237: 14-19.)
Defendant testified he ceased
recording at that time because plaintiff had been taken into
custody and he felt the scene had been stabilized, even though he
had not yet gotten in his car to leave.
238:2-5.)
(Id. at 237:11-24,
About one-and-a-half minutes after the shooting,
defendant resumed recording and thus the shooting was not
recorded.
(Id. at 275:20-276:1, 276:16-23.)
The shot to
plaintiff’s head was not fatal, and it was later determined that
plaintiff did not have a gun on him.
II.
Discussion
Plaintiff now renews his Rule 50(b) motion for judgment
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as a matter of law on the ground that there is not a legally
sufficient basis for the jury’s verdict.
Alternatively,
plaintiff moves for a new trial under Rule 59 on the following
grounds: (1) the admission of impermissible character evidence
about defendant; (2) Officer Bornhoeft’s testimony that he would
have shot plaintiff; (3) defense counsel’s misleading reference
to a murder conviction; (4) defense counsel’s suggestion of
perjury by plaintiff; (5) defense counsel’s “send a message”
statement during closing argument; (6) a minor alleged error in
the jury instructions; (7) the court’s “state of mind” limiting
instructions; and (8) the verdict is contrary to the clear weight
of the evidence.
A.
Rule 50 Renewed Motion for Judgment as a Matter of Law
“In considering a Rule 50(b)(3) motion for judgment as
a matter of law, the district court must uphold the jury’s award
if there was any ‘legally sufficient basis’ to support it.”
Experience Hendrix L.L.C. v. Hendrixlicensing.com Ltd, 762 F.3d
829, 842 (9th Cir. 2014) (quoting Kode v. Carlson, 596 F.3d 608,
612 (9th Cir. 2010) (per curiam)).
“When reviewing the record as
a whole, ‘the court must draw all reasonable inferences in favor
of the nonmoving party,’ keeping in mind that ‘“[c]redibility
determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not
those of a judge.”’”
Hangarter v. Provident Life & Acc. Ins.
Co., 373 F.3d 998, 1005 (9th Cir. 2004) (quoting Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)).
“Judgment as a matter of law is proper if the evidence, construed
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in the light most favorable to the nonmoving party, permits only
one reasonable conclusion, and that conclusion is contrary to the
jury’s.”
McEuin v. Crown Equip. Corp., 328 F.3d 1028, 1036 (9th
Cir. 2003) (internal quotation marks and citation omitted).
As the jury was instructed, the Fourth Amendment
requires that any use of force must be “‘objectively reasonable’
under all of the circumstances.”
(Jury Instr. No. 10); accord
Graham v. O’Connor, 490 U.S. 386, 397 (1989).
Determining the
reasonableness of force “requires a careful balancing of the
nature and quality of the intrusion on the individual’s Fourth
Amendment interests against the countervailing governmental
interests at stake.”
Graham, 490 U.S. at 396 (internal quotation
marks and citations omitted).
Reasonableness must be judged
“from the perspective of a reasonable officer on the scene and
not with the 20/20 vision of hindsight” while “consider[ing] all
of the circumstances known to the officer on the scene,
including:”
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1. The severity of the crime or other circumstances to
which the officer was responding;
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2. Whether the plaintiff posed an immediate threat to
the safety of the officer or to others;
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3. Whether the plaintiff was actively resisting arrest
or attempting to evade arrest by flight;
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4. The amount of time and any changing circumstances
during which the officer had to determine the type
and amount of force that appeared to be necessary;
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5. The type and amount of force used;
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6. The availability of alternative methods; and
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7. Whether the officer warned plaintiff of the use of
force, if giving plaintiff a warning was feasible.
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(Jury Instr. No. 10); accord Liston v. County of Riverside, 120
F.3d 965, 976 (9th Cir. 1997) (citing Graham, 490 U.S. at 388).
The “most important” factor under Graham is whether the suspect
posed an “immediate threat to the safety of the officers or
others.”
2005) (internal quotation marks and citation omitted).
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The Ninth Circuit has repeatedly held that “[a]n
officer’s use of deadly force is reasonable only if the officer
has probable cause to believe that the suspect poses a
significant threat of death or serious physical injury to the
officer or others.”
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Gonzalez v. City of Anaheim, 747 F.3d 789,
793 (9th Cir. 2014) (internal quotation marks and citation
omitted); see also Price v. Sery, 513 F.3d 962, 970 (9th Cir.
2008) (holding that “probable cause” and “reasonable belief” are
synonymous when assessing the nature of a threat giving rise to
the use of deadly force).1
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Smith v. City of Hemet, 394 F.3d 689, 702 (9th Cir.
“‘A simple statement by an officer that he fears for
his safety or the safety [of] others is not enough; there must be
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While the Ninth Circuit has overruled its prior holding
that a “deadly force” instruction is mandatory, see Acosta v.
Hill, 504 F.3d 1323, 1324 (9th Cir. 2007), it has still held that
the use of deadly force violates the Fourth Amendment unless “the
officer has probable cause to believe that the suspect poses a
significant threat of death or serious physical injury to the
officer or others.” Gonzalez, 747 F.3d at 793; see also Scott,
550 U.S. at 394-95 (“Although [Tennessee v. Garner, 471 U.S. 1
(1985)] may not, as the [majority] suggests, ‘establish a magical
on/off switch that triggers rigid preconditions’ for the use of
deadly force, it did set a threshold under which the use of
deadly force would be considered constitutionally unreasonable:
‘Where the officer has probable cause to believe that the suspect
poses a threat of serious physical harm, either to the officer or
to others, it is not constitutionally unreasonable to prevent
escape by using deadly force.’”) (Stevens, J., dissenting).
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objective factors to justify such a concern.’”
MacPherson, 630 F.3d 805, 826 (9th Cir. 2010) (quoting Deorle v.
Rutherford, 272 F.3d 1272, 1281 (9th Cir. 2001)).
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enforcement officer’s use of force will be justified, or not, by
what that officer reasonably believed about the circumstances
confronting him.”
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Price, 513 F.3d at 968 (emphasis added).
Here, it is undisputed that plaintiff was searched
prior to being placed in Unit 94 and, although the search may
have been rushed, Officer Bornhoeft testified that he was looking
for a gun in his thorough search that included plaintiff’s groin
and waistband.
After being searched, plaintiff was placed in the
back of the secure patrol car and, because he “flopped” over, his
hands, waistband, and backside were visible to the officers.
Not
a single officer testified that he saw anything even giving rise
to the suspicion that plaintiff had a gun in the crack of his
buttocks.
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Under the
objective inquiry governing the Fourth Amendment, “a law
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Bryan v.
Although one officer claimed he saw plaintiff holding a
gun before plaintiff voluntarily surrendered, none of the
officers saw plaintiff holding a gun when he voluntarily exited
his home.
The evidence at trial was that plaintiff could have
hidden the gun anywhere in his house before surrendering and
defendant testified that it was not surprising that their quick
search of the home did not uncover a gun.
(Tr. at 257:19-
258:13.)
When he returned to Unit 94 with his assault rifle
drawn, defendant then learned that another officer said plaintiff
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had said he had a gun.
Not a single officer testified that
plaintiff said he had a gun on his person or somehow hidden in
the crevice of his buttocks.
Neither defendant nor any of the
officers were aware of any other fact that tended to suggest that
the intoxicated and slender individual who had been searched
somehow secreted a gun in the crack of his buttocks.
Under the circumstances of this case, where plaintiff
had been thoroughly searched for a weapon and was handcuffed in
the back of a secure patrol car, it would seem to the court that
the only reasonable response to the statement, “I have a gun”
would be for an officer to ask, “Where?”
Given that plaintiff
had been seen with a gun in his hand before he voluntarily
surrendered, it was entirely likely that plaintiff was telling
the officers that there was a gun in his house.
When the
officers knew that plaintiff’s two-year-old son was still in the
house, his concern that the officers remove a gun before taking
him into custody would be entirely understandable.
The point is
not that the officers should have known what plaintiff meant, but
it would appear to the court that the only reasonable response
under the circumstances of this case would have been to ask
plaintiff where he had a gun before shooting him in the head.
The court simply does not understand how a jury could find from
the evidence presented in this case that a reasonable officer
would have believed plaintiff had a gun hidden in the crack of
his buttocks based exclusively on the improbable statement that
he had a gun.
Even assuming a reasonable officer would have believed
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plaintiff had a gun hidden somewhere that was not discovered
during the search, “[t]he mere fact that a suspect possesses a
weapon does not justify deadly force.”
Diego, 736 F.3d 1223, 1233 (9th Cir. 2013) (internal quotation
marks and citation omitted); see also Harris v. Roderick, 126
F.3d 1189, 1204 (9th Cir. 1997) (“Law enforcement officials may
not kill suspects who do not pose an immediate threat to their
safety or to the safety of others simply because they are
armed.”).
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Although plaintiff said he had a gun, he did not
threaten any of the officers or say anything to suggest that he
intended to use the gun to shoot the officers.
By defendant’s
own testimony, it is much more common for someone not to announce
that he has a weapon before attempting to assault officers.
(Tr.
at 196:17-197:2.)
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Hayes v. County of San
At most, plaintiff did not stop “shrugging” and
reaching his hands below his waistband over a period that could
not have exceeded two minutes.
Based on this evidence, a
reasonable officer would not have believed that plaintiff posed
an immediate risk to the safety of the officers.
Even assuming a
reasonable officer would have believed plaintiff had a gun in the
crack of his buttocks, plaintiff’s hands were handcuffed behind
his back with his palms facing out and the undisputed testimony
was that this made it more difficult for plaintiff to use his
hands.
(Id. at 127:18-23; see also id. at 306:14-18 (Andrew Hall
testifying, “[When a suspect is handcuffed b]ehind the back with
the palms out, the arms are less mobile, the hands are less
mobile, and seizing anything or doing anything with your hands
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while they’re behind the back is -- is very, very difficult.”).)
In order to pose a risk to the officers, plaintiff would have had
to somehow retrieve the gun with one hand from its clandestine
location, manage to aim it from behind his back in the direction
of the officers without shooting himself, and somehow pull the
trigger before any of officers surrounding the car could respond.
It boggles the court’s mind how the jury could find plaintiff
posed an immediate threat to the officers under these facts.
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Nor do the other Graham factors shed light on how the
jury reached the verdict it did.
the “severity of the crime or other circumstances to which the
officer was responding.”
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(Jury Instr. No. 10.)
While defendant
testified that a domestic violence call is not a “run-of-themill” call because there has already been violence, (Tr. at
250:1-4), any dispute had ended and plaintiff had voluntarily
exited his home by the time defendant arrived and defendant
testified that the situation had stabilized.
While a reasonable
officer may have perceived some heightened risk that evening due
to the information relayed to the officers by dispatch, plaintiff
had been searched, handcuffed, and placed in the back of a secure
patrol car at the time defendant used excessive force.
The
severity of the crime and circumstances were low at the time
defendant shot plaintiff in the head.
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First, the inquiry considers
“Whether the plaintiff was actively resisting arrest
or attempting to evade arrest by flight” is also relevant to the
inquiry.
There is no argument this factor could weigh in favor
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of defendant as plaintiff was handcuffed and in custody when
defendant used deadly force.
“[While] police officers need not employ the least
intrusive degree of force . . . the presence of feasible
alternatives is a factor to include in [the] analysis.”
Bryan,
630 F.3d at 813 (Wardlaw, J., concurring in the denial of
rehearing en banc) (internal quotation marks, citations, and
emphasis omitted); (see also Jury Instr. No. 10 (instructing the
jury to consider “[t]he availability of alternative methods”).)
At trial, plaintiff’s expert Andrew Hall, who had almost thirty
years of experience as a police officer, opined that the
circumstances of this incident, including that plaintiff had been
searched, handcuffed, and placed in the patrol car, provided the
officers with “a lot of alternatives.”
(Tr. at 307:20.)
For
example, Hall testified that the officers could have closed the
door to the patrol car and stepped behind the car to formulate a
plan or that they could have put tear gas in the car, used an
impact weapon, or a canine.
(Id. at 309:10-310:14, 313:10-18.)
They could have also gone to the side of the car nearest
plaintiff’s head and attempted to extract him, which the
testimony at trial revealed was what Sergeant Mike Iannone was
attempting to do until defendant told him to step away because he
was in defendant’s line of fire.
(Id. at 311:12-312:21.)
Although shooting plaintiff in the head may have been
the quickest way to respond to the possibility plaintiff had a
gun, “[a] desire to resolve quickly a potentially dangerous
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situation is not the type of governmental interest that, standing
alone, justifies the use of force that may cause serious injury.”
See Bryan, 630 F.3d at 826 (internal quotation marks and citation
omitted).
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The inquiry also considers “[t]he amount of time and
any changing circumstances during which the officer had to
determine the type and amount of force that appeared to be
necessary.”
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Hall testified at trial that
the circumstances, including the fact that plaintiff was in a
secured environment from which he could not escape, gave the
officers ample time to formulate a plan before immediately
resorting to deadly force.
(Tr. at 310:13-25.)
There was no
evidence to dispute this testimony.
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(Jury Instr. No. 10.)
“Whether the officer warned plaintiff of the use of
force, if giving plaintiff a warning was feasible” is also
relevant to reasonableness.
(Jury Instr. No. 10); see also
Gonzalez, 747 F.3d at 797 (“The absence of a warning does not
necessarily mean that [the] use of deadly force was
unreasonable[,] . . . [but when giving] a warning was
practicable[,] the failure to give one might weigh against
reasonableness.”).
This factor could weigh in favor of defendant
because defendant did tell plaintiff to stop moving or “I’ll peel
your grape,” if anybody knew what that meant.
Defendant
testified he believed “peel your grape” is “street vernacular”
for shooting someone in the head, even though he had admittedly
never heard the saying used in the five years prior to the
incident.
(Tr. at 209:3-5, 266:15-21.) Plaintiff’s expert, who
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had served as a sworn police officer for almost thirty years and
retired as the Chief of Police of Westminster, (id. at 298:1216), testified that he had heard “peel your grape” as vernacular,
but did not understand it to mean shooting someone in the head.
(Id. at 352:5-7.)
reasonable officer would expect this baffling expression to
provide a genuine warning.
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Based on all of these circumstances, the court does not
understand how the jury found that a reasonable officer would
have perceived plaintiff as posing an imminent threat
necessitating the immediate use of deadly force one second after
plaintiff’s hands were no longer visible despite the fact that he
had been searched and was handcuffed in the back of a patrol car
and not a single officer observed anything resembling a gun.
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The court is skeptical as to whether a
Nonetheless, the court must respect the jury’s
decision.
The Seventh Amendment entitled both parties to a jury,
Buckles v. King County, 191 F.3d 1127, 1140 (9th Cir. 1999), and
both parties exercised that right, (Docket No. 53).
“[A] decent
respect for the collective wisdom of the jury, and for the
function entrusted to it in our system, certainly suggests that
in most cases the judge should accept the findings of the jury,
regardless of his own doubts in the matter.”
Landes Const. Co.
v. Royal Bank of Canada, 833 F.2d 1365, 1371 (9th Cir. 1987)
(internal quotation marks and citation omitted).
On the narrow
inquiry under Rule 50, moreover, the court must accept the
inferences and findings that the jury apparently drew even if the
court does not agree with or understand them.
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Under this
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extremely deferential review, the court cannot find that there is
no legally sufficient basis for the jury’s verdict and must
therefore deny plaintiff’s renewed motion for judgment as a
matter of law.
B.
Rule 59 Motion for a New Trial
Pursuant to Rule 59, a “court may, on motion, grant a
new trial . . . after a jury trial, for any reason for which a
new trial has heretofore been granted in an action at law in
federal court.”
Fed. R. Civ. P. 59(a)(1)(A).
Rule 59 does not
specify the grounds on which a motion for a new trial may be
granted, and thus “the court is bound by those grounds that have
been historically recognized.”
Molski v. M.J. Cable, Inc., 481
F.3d 724, 729 (9th Cir. 2007) (internal quotation marks and
citations omitted).
“[E]ven if substantial evidence supports the
jury’s verdict, a trial court may grant a new trial if ‘the
verdict is contrary to the clear weight of the evidence, or is
based upon evidence which is false, or to prevent, in the sound
discretion of the trial court, a miscarriage of justice.’”
Silver Sage Partners, Ltd. v. City of Desert Hot Springs, 251
F.3d 814, 819 (9th Cir. 2001) (quoting United States v. 4.0 Acres
of Land, 175 F.3d 1133, 1139 (9th Cir. 1999)).
“Unlike with a Rule 50 determination, the district
court, in considering a Rule 59 motion for new trial, is not
required to view the trial evidence in the light most favorable
to the verdict.
Instead, the district court can weigh the
evidence and assess the credibility of the witnesses.”
Experience Hendrix L.L.C., 762 F.3d at 842.
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The Ninth Circuit
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has emphasized that, under Rule 59, the district court has “‘the
duty . . . to weigh the evidence as [the court] saw it, and to
set aside the verdict of the jury, even though supported by
substantial evidence, where, in [the court’s] conscientious
opinion, the verdict is contrary to the clear weight of the
evidence.’”
Molski, 481 F.3d at 729 (quoting Murphy v. City of
Long Beach, 914 F.2d 183, 187 (9th Cir. 1990) (omission and
alterations in original).
At the same time, “a district court
may not grant a new trial simply because it would have arrived at
a different verdict.”
Silver Sage Partners, Ltd., 251 F.3d at
819.
In Gates v. Rivera, the Ninth Circuit held that an
officer’s testimony that he had not previously shot anyone is
inadmissible because “[c]haracter evidence is normally not
admissible in a civil rights case.”
993 F.2d 697, 700 (9th Cir.
1993); see also Fed. R. Evid. 404(a)(1) (“Evidence of a person’s
character or character trait is not admissible to prove that on a
particular occasion the person acted in accordance with the
character or trait.”); Fed. R. Evid. 404 advisory committee’s
note (“The Rule has been amended to clarify that in a civil case
evidence of a person’s character is never admissible to prove
that the person acted in conformity with the character trait.”).
As the Ninth Circuit explained, “The question to be resolved was
whether, objectively, [the officer’s] use of force had been
excessive,” and thus the officer’s “past conduct d[oes] not bear
on that issue.”
Gates, 993 F.2d at 700.
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Despite Gates’s clear holding, defense counsel began
his cross-examination of defendant by establishing that the
defendant had never shot anyone prior to shooting plaintiff:
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Q. Officer Beckham, as you sit here today, how long
have you been a police officer?
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A. Over 13 years.
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Q. During your 13-year career, how many arrests would
you say you’ve made?
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A. More than a thousand.
Q. Of those arrests that you’ve made, how many of
those do you think involved a suspect either having a
gun or claiming to have a gun?
A. Possibly between 150 to 200. Possibly.
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Q. Other than this incident on January 30, 2011, had
you ever -- have you ever shot anybody?
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A. No, sir.
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(Tr. 247:21-248:8.)
Plaintiff’s counsel objected and moved to strike the
question and answer and the court sought guidance from
plaintiff’s counsel as to whether the evidence was relevant
before ruling on the objection.
Instead of articulating why the
evidence was not relevant as the court requested, plaintiff’s
counsel simply assumed the court had ruled and said the question
was “fine”:
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MR. KATZ: Objection, Your Honor.
strike.
Relevance.
Move to
THE COURT: I suppose the point is that all these other
people that claimed they had guns didn’t get shot.
MR. PRAET: Exactly.
THE COURT: Would that be relevant or not, Mr. Katz?
Do you think that might be relevant?
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MR. KATZ: The Court has ruled, Your Honor.
fine.
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THE COURT: I don’t know.
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MR. KATZ: That’s fine.
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THE COURT: -- think it through.
objection.
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(Id. at 248:6-21.)
That’s
I’m just trying to --
I’ll overrule the
Had plaintiff cited Gates during trial or had
not given up on his objection before the court had a chance to
rule on it, the court would have stricken defendant’s testimony
about his past conduct.
Nonetheless, the jury’s consideration of this
impermissible character evidence merits a new trial unless the
error was harmless.
Gates, 993 F.2d at 700.
“In answering this
question [the court] must undertake a review of the trial as a
whole and look at the case as it would have stood if [the
officer’s] answers had not been in evidence.”
Id.
This
“hypothetical” inquiry seeks to “ascertain the likelihood that
these particular jurors in this particular case were influenced
in their verdict by the improperly-admitted answers.”
Id.
In
Gates, the Ninth Circuit ultimately concluded that, under the
circumstances of that case, the officer’s “self-serving testimony
about his past conduct with guns did not enhance his
credibility.”
Id. at 700-01.
Here, however, the court cannot find that these
particular jurors in this case were not improperly influenced by
the inadmissible character evidence.
Crucial to the jury’s
verdict was whether the jury found that a reasonable officer
would have believed that plaintiff in fact had a gun.
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At trial,
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defendant testified that he thought he was going to get shot
merely because it was “possible” plaintiff had a gun.
all of the circumstances and his demeanor while testifying, the
court believes that even though defendant may have thought it was
possible plaintiff had a gun, he must have believed it was more
probable that plaintiff did not, and thus his claimed fear that
he was going to get shot was not credible.2
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Based on
Unlike in Gates where there was physical evidence
corroborating the officer’s fear, see id. at 700, there was not a
single piece of physical evidence that corroborated defendant’s
fear in this case.
Defendant relied exclusively on an ambiguous
statement and a shrugging movement by an individual who had been
searched for a weapon, handcuffed, and placed in the back of a
patrol car.
Notwithstanding the court’s doubt that defendant
truly and reasonably believed plaintiff had a gun, the jury
apparently found his testimony credible and gave it significant
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Plaintiff’s counsel also elicited testimony that
undercut the court’s assessment of defendant’s credibility at
trial. For example, although it cannot be heard on the video and
defendant “had a hard time hearing” after the shooting because of
the “ringing” in his ears from firing his assault rifle, (Tr. at
243:19-21, 246:9-13, 275:22-23), defendant claimed plaintiff said
something to the effect of “He did the right thing, I could have
had a gun” and also that “he wanted to die,” (id. at 277:10-13;
see also id. at 244:12-14). While these surprising statements
cannot be heard in the post-shooting video, instead plaintiff can
be heard moaning and expressing his pain and difficulty
breathing. (Pl.’s Tr. Ex. 57B; Tr. at 243:22-25.) The court did
not find this testimony credible and, based on the crossexamination surrounding these statements, believes defendant
likely fabricated these statements in an effort to justify his
use of force. The court was also baffled by defendant’s
testimony that he said he intended “peel your grape” as a warning
that he would shoot plaintiff in the head.
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weight.
Under these circumstances, defendant’s impermissible
character evidence about the fact that he had not shot a suspect
in the 150 to 200 prior arrests in which suspects claimed to have
guns likely affected the jury’s assessment of whether defendant
believed he was going to get shot in this case.
Not only was it likely that the jury considered this
impermissible character evidence in assessing defendant’s
credibility, it is also likely the jury improperly considered the
testimony on the ultimate issue of reasonableness.
When the
court asked defense counsel at oral argument on this motion why
defendant’s past conduct was relevant, counsel argued that the
fact defendant has never shot anyone shows that defendant is an
objectively reasonable officer.
The controlling inquiry is
whether an objectively reasonable officer under the same or
similar circumstances would have shot the plaintiff, not whether
defendant is or was a reasonable officer.
It would have been
entirely impermissible for the jury to infer that because
defendant had never shot anyone in the past, his decision to do
so in this case must have been necessary or reasonable.
This is
precisely the improper inference defense counsel invokes to argue
that the character evidence was relevant.
The prejudice from allowing the jury to consider such
past conduct is also illustrated by Dupard v. Kringle.
In that
case, the plaintiff alleged the defendants used excessive force
against him and the district court allowed the defendants to put
forth evidence at trial showing that excessive force complaints
had never been lodged against them before the incident with
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plaintiff.
See Dupard v. Kringle, 76 F.3d 385, at *1, *3 (9th
Cir. 1996).
The Ninth Circuit reversed the judgment and remanded
for a new trial based on the jury’s consideration of that
evidence.
Id. at *4.
The Ninth Circuit explained that such
testimony was inadmissible character evidence because the “only
relevance of testimony that the marshals had never had excessive
force complaints filed against them was as proof that, in the
instance at issue, they did not use excessive force against
[plaintiff].”
Id. at *3.
It concluded that a new trial was
necessary because it could not “say that it is unlikely that the
jury’s verdict in favor of the marshals was not substantially
influenced by the jury’s knowledge that the marshals had never
had excessive force complaints lodged against them.”
Id. at *4.
Although Dupard is unpublished and therefore not precedent, it
confirms the weight such impermissible character evidence likely
had in this case.
In the ordinary case where the evidence to support the
verdict is stronger, the court may be able to find with some
level of confidence that self-serving testimony that the
defendant had not shot someone in the past did not improperly
influence the jury.
In this case, however, the court simply
cannot understand how the jury found that a reasonable officer
would have believed plaintiff had a gun and that it was
reasonable to use deadly force against plaintiff when he had been
searched, handcuffed, and placed in the patrol car.
When the
evidence supporting the verdict is as scant as it was in this
case, it is likely that the inadmissible character evidence
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tipped the scales too far and resulted in what the court believes
is a miscarriage of justice.3
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Accordingly, after undertaking its “‘duty . . . to
weigh the evidence as [the court] saw it,” the jury’s
consideration of inadmissible character evidence causes the court
great concern that a miscarriage of justice occurred and the
court must therefore grant plaintiff’s motion for a new trial.
Molski, 481 F.3d 724, 729 (9th Cir. 2007) (quoting Murphy, 914
F.2d at 187) (omission and alterations in original).
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IT IS THEREFORE ORDERED that plaintiff’s renewed motion
for a judgment as a matter of law be, and the same hereby is,
DENIED; and plaintiff’s motion for a new trial be, and the same
hereby is, GRANTED.
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The Clerk is instructed to vacate the judgment of
November 18, 2015 (Docket No. 94) and this matter is set for a
status conference on March 28, 2016 at 1:30 p.m. to set a new
trial date.
Dated:
March 9, 2016
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Because the court will grant plaintiff’s motion for a
new trial based on the jury’s consideration of the inadmissible
character evidence, the court need not address plaintiff’s
remaining arguments in favor of a new trial.
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