Gregory et al v. City of Vallejo, CA et al

Filing 91

ORDER signed by Judge Kimberly J. Mueller on 1/22/2015 re Tentative Ruling of 70 MOTION IN LIMINE No. 4. (Donati, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ERIKA GREGORY and LOREN
MOLLNER,
Plaintiffs,

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ORDER
v.

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No. 2:13-CV-0320-KJM-KJN

CITY OF VALLEJO, former VPD CHIEF
ROBERT NICHELINI, VPD OFFICER
CHASE CALHOUN, et al.,
Defendants.

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Defendants’ motion in limine number four is currently pending before the court.

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(ECF No. 70.) Plaintiffs oppose the motion (ECF No. 77), and defendants have replied (ECF No.

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81). To assist the parties in trial preparation, the court’s tentative rulings on the issues raised by

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this motion follow.

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I.

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Late Responses to Service Calls
The court grants defendants’ motion to the extent it seeks to exclude evidence of

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any habit based on Officer Calhoun’s past late responses to service calls. Fed. R. Evid. 406.

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However, because it is undisputed Officer Calhoun was late in responding to the service call in

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this case, nothing prevents plaintiffs from arguing their theory of the case, that Calhoun’s “state

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of mind may not have been focused on the call” because he was “rushing to [p]laintiff’s residence

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after ignoring dispatch for over an hour . . . .” (ECF No. 77 at 8.)
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The court denies defendants’ motion to the extent they argue Calhoun’s delayed

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response is irrelevant. The reasonableness inquiry in which the jury will engage is an objective

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one. See Brigham City, Utah v. Stuart, 547 U.S. 398, 404 (2006) (“An action is ‘reasonable’

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under the Fourth Amendment, regardless of the individual officer’s state of mind as long as the

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circumstances, viewed objectively, justify [the] action.’” (emphasis and brackets in original)). At

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the same time, Officer Calhoun’s perceptions of the objective facts are relevant. See Rowland v.

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Perry, 41 F.3d 167, 172–73 (4th Cir. 1994) (in reviewing qualified immunity inquiry, noting an

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officer’s “perceptions of the objective facts of the incident in question” are relevant). Officer

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Calhoun’s late response is relevant to his perceptions of the facts in question because the delay

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may have affected those perceptions. Although a jury will have to make several inferences to get

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from any evidence of the late response to the consequential fact of an unfocused mind, the

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relevance standard is low and the judge’s role is limited in applying it. Once properly instructed,

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it will be the jury’s province to weigh the evidence and decide which side’s theory of the case to

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believe.

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II.

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Evidence of Termination/Circumstances Surrounding Termination
A.

Cross-Examination
The court grants defendants’ motion to the extent plaintiffs seek to cross-examine

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Officer Calhoun to elicit details of the sexual misconduct underlying his termination because

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those details are not relevant to the issues at trial and have a high likelihood of confusing the

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issues. See Fed. R. Evid. 401, 404. Plaintiffs, however, are not prohibited from asking Officer

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Calhoun questions probing his truthfulness in connection with his employment, given that his

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credibility will be critical to the jury’s determination of the case. See Fed. R. Evid. 608(b); Nat’l

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Mgmt. Servs., Inc. v. Qwest Dex, Inc., 219 F. App'x 658, 659-60 (9th Cir. 2007) (affirming district

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court’s permitting cross-examination of witness about acts underlying his bar disciplinary

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proceedings but excluding nature of the proceedings, the entities involved, and the penalties

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imposed); Lewy v. S. Pac. Transp. Co., 799 F.2d 1281, 1299 (9th Cir. 1986) (Rule 608(b) allows

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cross-examination on specific instances of conduct “that would be probative on the issue of []

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credibility,” but “the rule expressly authorizes courts to limit such questioning ‘in [their]
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discretion.’” ); Stringer v. City of San Pablo, No. C 07-3544 CW (MEJ), 2009 WL 302616, at *2

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(N.D. Cal. Feb. 6, 2009) (“a specific act of misconduct, offered to attack the witness' character for

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truthfulness, can be elicited only on cross-examination of the witness”).

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B.

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Impeachment
The court denies defendants’ motion to the extent plaintiffs seek to use extrinsic

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evidence for purposes of impeachment by prior inconsistent statements under Federal Rule of

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Evidence 608. Courts may admit extrinsic evidence to impeach a witness if the evidence goes to

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witness’s credibility. Smith v. California, 350 F. App'x 178, 180 (9th Cir. 2009) (not abuse of

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discretion to admit witness’s inmate status reports because they were not being introduced to

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prove the truth of the matter asserted but rather to impeach witness’s prior testimony that he was

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not a disruptive inmate); Ellis v. Navarro, No. C 07-5126 SBA PR, 2012 WL 3580284, at *7

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(N.D. Cal. Aug. 17, 2012) (“the admissibility of extrinsic evidence offered ‘for other grounds of

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impeachment (such as contradiction, prior inconsistent statement, bias and mental capacity)’ is

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governed by Rules 402 and 403”). If extrinsic evidence contradicts Officer Calhoun’s testimony,

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plaintiffs may use it for the sole purpose of impeachment.

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C.

Reputation/Opinion

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The court denies defendant’s motion to the extent plaintiffs seek to offer opinion

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or reputation evidence of Officer Calhoun’s character for truthfulness. “A witness’s credibility

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may be attacked or supported by testimony about the witness’s reputation for having a character

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for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character.”

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Fed. R. Evid. 608(a). If plaintiffs can establish an adequate foundation for a witness’s knowledge

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of Officer Calhoun’s truthfulness or untruthfulness, that evidence is admissible under Rule

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608(a). See United States v. Holt, 486 F.3d 997, 1002 (7th Cir. 2007) (noting, while it is within

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the trial court's discretion to prohibit cross-examination of a police officer as to whether he had

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been suspended to call into question his credibility, plaintiff “could have used Rule 608(a) and

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called a member of the department to testify directly about his opinions or reputation of [the

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credibility of the officer].”). Though a criminal case, the evidentiary principles in Holt have been

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applied in the civil context. See Junkert v. Massey, No. 06-3243, 2009 WL 1161654, at *4 (C.D.
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Ill. Apr. 24, 2009) (citing Holt with approval); Maples v. Vollmer, No. CIV 12-0294 JB/RHS,

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2013 WL 1677104, at *10 (D.N.M. Mar. 31, 2013) (citing Holt with approval in a §1983 case).

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However, Rule 608(a) may not be used as a vehicle for admitting specific bad acts.

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No witness may testify about the reasons for Officer Calhoun’s termination, to the extent they

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qualify as specific acts governed by Rule 608(b). See Martin v. Jones, No. 09 C 1690, 2013 WL

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3754017, at *6 (N.D. Ill. July 16, 2013) (“The limitations in [Rule 608(a)] to opinion and

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reputation evidence mean that a character witness cannot be used as a subterfuge for getting

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specific acts of untruthfulness in front of the jury.”) (internal citations omitted); Behler v. Hanlon,

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199 F.R.D. 553, 559 (D. Md. 2001) (“On direct examination, the character witness may give the

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basis for the opinion or reputation testimony, but may not testify as to specific acts.”).
These tentative rulings assume that testimony does not open the door to allow

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questions they otherwise preclude. The court anticipates providing the jury with limiting

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instructions consistent with these rulings.

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As the parties have been advised previously, each ruling on a motion in limine is

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made without prejudice and is subject to proper renewal, in whole or in part, during trial. If a

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party wishes to contest a pretrial ruling, it must do so through a proper motion or objection, or

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otherwise forfeit appeal on such grounds. See Fed. R. Evid. 103(a); Tennison v. Circus Circus

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Enters., Inc., 244 F.3d 684, 689 (9th Cir. 2001) (“Where a district court makes a tentative in

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limine ruling excluding evidence, the exclusion of that evidence may only be challenged on

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appeal if the aggrieved party attempts to offer such evidence at trial.”) (alteration, citation and

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quotation omitted).

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IT IS SO ORDERED.
DATED: January 22, 2015.

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UNITED STATES DISTRICT JUDGE

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