Lopez v. Clous et al

Filing 98

ORDER by Judge Charles R. Breyer granting 73 Motion for Writ of Habeas Corpus ad testificandum. (crblc2, COURT STAFF) (Filed on 10/24/2016)

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1 2 IN THE UNITED STATES DISTRICT COURT 3 FOR THE NORTHERN DISTRICT OF CALIFORNIA 4 5 8 9 ORDER GRANTING WRIT OF HABEAS CORPUS AD TESTIFICANDUM Plaintiff, 6 7 No. C 13-3870 CRB FERNANDO G. LOPEZ, v. SERGEANT CLOUS, et al., Defendants. / United States District Court For the Northern District of California 10 11 Plaintiff Fernando G. Lopez brings claims for excessive force under 42 U.S.C. section 12 1983. He alleges that Defendants – Santa Clara police officers – punched, kicked, and 13 stomped on his face and body during an arrest for no good reason. See Am. Compl. (dkt. 49 14 ¶¶ 11-12). The officers admit they used blows to subdue Mr. Lopez but argue that they had 15 to. See Opp’n (dkt. 74) at 3. The case is set for trial on November 14, 2016. 16 Mr. Lopez, now a prisoner at San Quentin, has petitioned for a writ of habeas corpus 17 ad testificandum, which would allow him to take the stand despite being incarcerated. Pet. 18 (dkt. 73) at 1. The officers oppose the petition, arguing that Mr. Lopez “is a violent and 19 dangerous man” who should not be allowed near the courtroom. See Opp’n at 6. A district 20 court may, in its discretion, allow a prisoner to testify in a civil trial. Wiggins v. Alameda 21 Cnty., 717 F.2d 466, 468 n.1 (9th Cir. 1983). Four factors matter: 22 First, the Court must determine whether Mr. Lopez’s in-court testimony would further 23 the resolution of this case. See id. The answer is emphatically yes. Only Mr. Lopez and the 24 involved officers witnessed the disputed encounter, and no video footage of it exists. See 25 Pet. at 5. The case will hinge on who the jury believes. That makes Mr. Lopez’s testimony 26 crucial. See United States v. Mejia, 69 F.3d 309, 315-18 (9th Cir. 1995). What is more, any 27 prisoner faces a built-in credibility deficit against police officers. So showing the jury clips 28 of Mr. Lopez’s deposition – taken in prison – or having him testify via video feed – from 1 1 2 prison – would just pile on. Second, the Court must determine whether Mr. Lopez poses a security risk. See 3 Wiggins, 717 F.2d at 468 n.1. Mr. Lopez has, by all indications, been a model prisoner at 4 San Quentin. See Dawson Decl. (dkt. 73-1) Exs. 7-8. And though he is serving time for 5 assault with a deadly weapon, he committed that crime moments after finding a man in bed 6 with his ex-girlfriend. See id. Ex. 1 at 85:12-86:20. That is enough under California law to 7 reduce murder to manslaughter. See Cal. Penal Code § 192(a). It is also enough to convince 8 the Court that Mr. Lopez poses no special threat, regardless of who attends trial and whatever 9 tattoos he may have. United States District Court For the Northern District of California 10 Third, the Court must consider the cost of transporting and supervising Mr. Lopez. 11 See Wiggins, 717 F.2d at 468 n.1. An official at San Quentin has already said that doing so 12 would be “no problem” because it is something they do on “a regular basis.” See Dawson 13 Decl. Ex. 10. And in any event, costs matter but they do not control. 14 Fourth, the Court must consider whether to stay the case until Mr. Lopez is released 15 over a year from now. See Wiggins, 717 F.2d at 468 n.1. The parties have prepared for trial 16 and agree that the case should move forward. See Pet. at 7; Opp’n at 8. 17 The Court GRANTS the writ. Mr. Lopez will take the stand. 18 19 IT IS SO ORDERED. 20 Dated: October 24, 2016 CHARLES R. BREYER UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28 2

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