Armbrester v. City of Berkeley

Filing 85

ORDER by Judge Joseph C. Spero granting in part and denying in part 48 Motion in Limine; granting in part and denying in part 50 Motion in Limine; denying 61 Motion in Limine; granting in part and denying in part 62 Motion in Limine; denying 63 Motion in Limine; granting 64 Motion in Limine; denying 66 Motion in Limine; granting 67 Motion in Limine; denying 68 Motion in Limine; granting 69 Motion in Limine; granting 70 Motion in Limine; denying 71 Motion in Limine. (jcslc1S, COURT STAFF) (Filed on 6/11/2018)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

FLOYD ARMBRESTER,

Case No. 16-cv-04615-JCS

Plaintiff,
8
v.

ORDER RE MOTIONS IN LIMINE AND
MOTIONS TO EXCLUDE

9
10

CITY OF BERKELEY, et al.,

Re: Dkt. Nos. 48, 50, 61, 62, 63, 64, 66, 67,

Defendants.
68, 69, 70, 71

United States District Court
Northern District of California

11
12
13
14

On June 8, 2018, the Court held a pretrial conference in this case. The Court sets forth

15
16

below its rulings on the parties’ motions in limine and motions to exclude expert testimony. For

17

the reasons stated on the record, the Court rules as follows:

18

I.

19

PLAINTIFF’S MOTIONS IN LIMINE


Character Evidence at Trial [Dkt. No. 68]: DENIED

20
21

Plaintiff’s Motion in Limine No. 1 to Exclude the Introduction of Any Improper



Plaintiff’s Motion in Limine No. 2 to Exclude Evidence of the Plaintiff’s Prior

22

Lawsuit Against Oakland for Excessive Force [Dkt. No. 69]: GRANTED as to the

23

exclusion of evidence relating to Plaintiff’s prior lawsuit asserting an excessive

24

force claim against the City of Oakland. The Court’s ruling on this motion in

25

limine does not preclude the City of Berkeley from introducing evidence that

26

Plaintiff did not consult a doctor about the injuries alleged in this action until after

27

he had consulted a lawyer.

28



Plaintiff’s Motion in Limine No. 3 To Exclude Evidence Of Plaintiff’s Prior Felony

Conviction [Dkt. No. 70]: GRANTED.

1


2

Relating To This Suit [Dkt. No. 71]: DENIED.

3
4

Plaintiff’s Motion in Limine No. 4 To Exclude Evidence Of Plaintiff’s Arrest

II.

DEFENDANTS’ MOTIONS IN LIMINE


5

Defendants’ Motion in Limine No. 1 to Exclude Lay Opinion Testimony Re
Whether the Use of Force was Excessive or Unnecessary [Dkt. No. 61]: DENIED.

6


7

Defendants’ Motion in Limine No. 2 to Exclude Evidence or Argument Re Facts
Not Known to the Officers at the Time of the Incident [Dkt. No. 62]: GRANTED

9

in part and DENIED in part. Plaintiff may present evidence that he was blind and

10

had a metal rod in his arm. He may not offer evidence or testimony as to how he

11
United States District Court
Northern District of California

8

became blind or why he had a metal rod in his arm.


12

Defendants’ Motion in Limine No. 3 to Exclude Evidence of Officers’ Net Worth
[Dkt. No. 63]: DENIED.

13


14

Defendants’ Motion in Limine No. 4 to Exclude Evidence re False Arrest and
Dismissal of the Criminal Charges Against Plaintiff [Dkt. No. 67]: GRANTED.

15


16

Defendants’ Motion in Limine No. 5 to Exclude Evidence of Indemnification [Dkt.
No. 64]: GRANTED.

17


18

Defendants’ Motion in Limine to Exclude Evidence of a “Wall of Blue” or “Code
of Silence” [Dkt. No. 66]: DENIED.

19

21

DEFENDANTS’ MOTION TO EXCLUDE PLAINTIFF’S EXPERT WITNESS
ROGER CLARK, OR IN THE ALTERNATIVE, PROHIBIT HIM FROM
OFFERING CERTAIN IMPROPER OPINIONS [DOCKET NO. 48]

22

The Court GRANTS in part and DENIES in part Defendants’ Motion to Exclude

23

Plaintiff’s Expert Witness Roger Clark for the reasons stated on the record. As a police practices

24

expert, it is permissible for Mr. Clark to testify about policies and procedures relevant to whether

25

the Officers’ conduct was reasonable. He may, therefore, testify about customs and practices of

26

police officers, including any non-law sources of those practices such as Post Standards or internal

27

department policies. He may not testify about what the law is or whether Defendants’ conduct

28

was legal.

20

III.

2

With respect to the specific opinions contained in Mr. Clark’s expert report, starting at

1
2

page 19, the Court rules as follows.

3



Opinion Nos. 1-3, 8 and 11 are excluded in their entirety.

4



Opinion No. 4 is permissible except for the words “that is forbidden by policy and
law.”

5


6

Portions of Opinion No. 5 are permissible. Mr. Clark may testify that the use of

7

force was excessive, about his understanding that Mr. Armbrester was

8

“cooperative, unarmed, non-combative, and not a threat,” and that the use of force

9

was “totally avoidable.” On the other hand, the following words and phrases in this
paragraph are excluded: “deliberately,” “that resulted [in] serious and significant

11
United States District Court
Northern District of California

10

injuries,” “and for which they cannot be excused or forgiven,” and “was a willful

12

disregard for the safety of Mr. Armbrester, and.”


13

Opinion No. 6 is permissible except for the words “significant” before the word

14

“injuries” and the use of the word “statutory” before “requirements.” The Court

15

also excludes the opinions concerning “Officer Liability,” “Cruel or unusual

16

punishment” and “Inhumane or Oppressive treatment” under Post.

17



Opinions 7 and 9 are permissible.

18



Opinion 10 is permissible except for the last paragraph, which references the
United States Constitution. That paragraph is excluded in its entirety.

19
20
21

22

IV.

PLAINTIFF’S MOTION TO EXCLUDE EXPERT OPINION OF MICHAEL
SULLIVAN [DKT. NO. 50]
Plaintiff’s Motion to Exclude the Expert Opinion of Michael Sullivan is GRANTED in

23
part and DENIED in part. Mr. Sullivan may offer testimony as to the custom and practice of a
24
reasonable police department and a reasonable officer as to arresting persons with disabilities. He
25
may also cite in that regard any city policies referenced in his report. Mr. Sullivan may not,
26
however, offer any ultimate conclusions such as whether the officers violated the ADA, whether
27
reasonable accommodations were provided under the ADA, or whether there was discrimination
28
3

1
2
3

on the basis of a disability under the ADA.
IT IS SO ORDERED.
Dated: June 11, 2018

4
5
6

______________________________________
JOSEPH C. SPERO
Chief Magistrate Judge

7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21

22
23
24
25
26
27
28
4