Solomon v. City of South Lake Tahoe et al

Filing 83

ORDER signed by Judge Garland E. Burrell, Jr. on 1/13/2015 FINDING that 73 Motion in Limine lacks the preciseness rrequired for an in limine ruling; GRANTING 66 Motion in Limine; FINDING that 67 Motion in Limine has not presented sufficient factual context for an in limine ruling. (Michel, G)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PATRICK WAYNE SOLOMON,

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Plaintiff,

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No.

2:13-cv-00115-GEB-CKD

ORDER ON MOTIONS IN LIMINE*

v.
OFFICER J. HERMINGHAUS,

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Defendant.

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Each party moves in limine for an order precluding the

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admission of certain evidence at trial.1 Each motion is addressed

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below.
A.

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Plaintiff

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seeks

to

exclude

“[e]vidence

of

[his]

criminal history,” arguing:

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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 . . . .

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Plaintiff’s Motion

(Pl.‟s

Mot.

in

Limine

(“MIL”)

1:27,

3:8-24,

ECF

No.

73.)

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*

These motions are suitable for decision without oral argument.

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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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Plaintiff further argues evidence of his criminal history should

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be excluded under Federal Rules of Evidence (“Rules”) 403 and

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404(b).

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Defendant

rejoins

that

Plaintiff‟s

prior

criminal

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convictions “are relevant to rebut Plaintiff‟s claim that he was

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not

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Herminghaus] a question.” (Def.‟s Opp‟n 2:23-3:2, ECF No. 76.)

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Defendant argues:

resisting,

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but

instead

simply

attempting

to

ask

[Officer

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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.

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(Id. at 3:5-9 (citing Boyd v. S.F., 576 F.3d 938, 944-45 (9th

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Cir. 2009)). Defendant further counters that Plaintiff‟s

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felony

convictions

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claim,

are

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character

for

truthfulness,”

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404(b)(2)

“to

demonstrate

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absence of mistake in this instance.” (Id. at 3:23-28, 4:3-7,

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4:24-5:9.)

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are

admissible

relevant
under

to

his

lost

earning

Rule

609

“to

and

are

admissible

[Plaintiff‟s

attack

bias,]

past

capacity

Plaintiff‟s
under

Rule

intent[,]

and

This motion lacks the preciseness required for an in
limine ruling.
B.

Defendant’s Motions

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Motion in Limine No. 1

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Defendant seeks to exclude “[e]vidence of Plaintiff‟s

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acquittal

or

any

other

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criminal trial[,]” in which he was charged with battery on a

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correctional

officer

and

aspect

of

resisting
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[his]

arrest.

underlying

(Def.‟s

MIL

[state]

No.

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1:26-27, ECF No. 66; see also Pls.‟ Trial Brief 3:3-9, ECF No. 64

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(describing

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“the

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acquittal) are simply not relevant to the sole [excessive force

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claim]

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disposition would be unduly prejudicial and misleading to the

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jury.” (Id. at 3:16-19.) Defendant contends:

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Plaintiff‟s

results

of

criminal

Plaintiff‟s

remaining

for

charges).)

underlying

trial[,]

and

any

Defendant

criminal

argues:

case

reference

to

(i.e.

such

a

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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.”

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(Id. at 3:22-26 (quoting Borunda v. Richmond, 885 F.2d 1384, 1387

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(9th Cir. 1988)).)

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Plaintiff

counters

that

his

acquittal

is

“directly

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relevant to the issue of excessive use of force . . . because

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whether Plaintiff was found to have resisted arrest is a relevant

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factor to the reasonableness inquiry regarding the use of force.”

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(Pl.‟s Opp‟n 2:15-17, 3:8-10, ECF No. 77.) Plaintiff also rejoins

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the

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Plaintiff incurred attorney fees and cost[s] to defend the charge

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of resisting arrest[, and i]f the force used against him is found

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to be excessive, he should be allowed to recover his damages of

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attorney‟s

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resulted in acquittal.” (Id. at 2:18-22.) Plaintiff asserts:

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acquittal

is

fees

relevant

expended

to

to

the

defend

issue

the

of

damages

criminal

“because

trial

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 §
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that

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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.

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(Id. at 4:4-11.)

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Plaintiff further counters that “to leave the issue

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uncertain of whether Plaintiff was convicted of resisting arrest

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would

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Plaintiff argues:

cause

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undue

prejudice.”

(Id.

at

2:17-18.)

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.

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[Plaintiff]

(Id. at 3:12-18.)

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Defendant replies that Plaintiff‟s argument concerning

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the acquittal‟s relevance to damages fails since the “Court has

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already

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probable cause.” (Def.‟s Reply 1:27-2:8, ECF No. 79.) Defendant

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argues:

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ruled

that

the

arrest

of

Plaintiff

was

supported

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
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by

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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.

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(Id.

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intention of introducing evidence that Plaintiff was charged with

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„resisting arrest‟ in addition to the „battery on a correctional

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officer‟ which led to his arrest.” (Id. at 2:4-6.) Defendant

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contends

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probable cause to arrest Plaintiff . . . and that‟s all the jury

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at

3:3-10.)

the

Defendant

“Court

has

further

ruled

replies

that

that

Officer

he

has

Herminghaus

“no

had

needs to know.” (Id. at 2:15-16.)

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Plaintiff has not shown that his acquittal is relevant

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to damages on his excessive force claim, and assuming arguendo

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its

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“probative value is substantially outweighed by a danger of . . .

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unfair prejudice . . . [and/or] misleading the jury.” Fed. R.

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Evid. 403. “Evidence of an acquittal is not generally admissible

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in a subsequent civil action between the same parties since it

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constitutes a „negative sort of conclusion lodged in a finding of

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failure of the prosecution to sustain the burden of proof beyond

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a reasonable doubt.‟” Borunda, 885 F.2d at 1387 (quoting S. Gard,

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2 Jones on Evidence, § 12:25, p. 391 (6th ed. 1972)); see also

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Mullins v. City of Philadelphia, 287 F. App‟x 201, 203-04 (3rd

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Cir. 2008) (“The standards of proof in the criminal case and in

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this

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plaintiff‟s

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subsequent civil rights action).

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admission

civil

is

case
motion

relevant

are
to

to

the

different.”)
admit

use

of

force

(affirming

evidence

of

his

issue,

denial

of

acquittal

any

the
in

In light of Defendant‟s Rule 403 arguments, this motion
is granted.
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Motion in Limine No. 2

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Defendant moves to exclude “any and all post-incident

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photos

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scene,” arguing the photographs lack foundation and are unduly

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prejudicial. (Def.‟s MIL No. 2 1:26-27, ECF No. 67.) Defendant

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argues:

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purporting

•

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[the]

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]

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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.

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at

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[,]

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positioning

Plaintiff cannot establish that the
scene was not altered from the time
of the actual incident and the time
that these photos were taken[,]

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Plaintiff‟s

•

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depict

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:

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to

(Id. at 3:12-25.)
Plaintiff

counters

that

“the

photos

can

be

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[authenticated] and lack any prejudice to the Defendant.” (Pl.‟s

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Opp‟n 2:9-10, ECF No. 78.) Plaintiff contends:

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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.

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(Id. at 2:18-27.) Plaintiff further rejoins that he “will provide

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the

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establish the nature of the injury and the type of object that

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may have caused the injury.” (Id. at 3:9-10.)

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emergency

room

treating

physician

as

a

witness

who

can

A sufficient factual context has not been presented for

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an in limine ruling on this motion.

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Dated:

January 13, 2015

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