Marker v. City of San Jose et al

Filing 115

ORDER by Judge Ronald M Whyte granting 100 Motion in Limine; granting 111 Motion in Limine (rmwlc2, COURT STAFF) (Filed on 8/13/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

SAN JOSE DIVISION
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MERCEDES MARKER,
Plaintiff,

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Case No. C-09-05956-RMW
ORDER ON ADDITIONAL MOTIONS
IN LIMINE

v.
CITY OF SAN JOSE and SON VU,
Defendants.

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[Re: Docket Nos. 100, 111]

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I.

DEFENDANTS’ IN LIMINE MOTION

Motion in Limine No. 4: To preclude prior “bad acts” evidence relating to Office Vu.
GRANTED. The evidence is not relevant. Fed. R. Evid. 401. Even if some inference that

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Vu’s testimony is likely to be biased in favor of the City because he is being paid while on
administrative leave (as opposed to being fired or suspended without pay) pending resolution of his

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involvement with marijuana could be drawn, the probative value of the evidence would be

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substantially outweighed by the danger of unfair prejudice and by the waste of time that would be

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involved in presenting the evidence. Fed. R. Evid. 403.
SECOND ORDER RE MIL
Case No. C-09-05956-RMW
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United States District Court
For the Northern District of California

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II.

PLAINTIFF’S IN LIMINE MOTION

Motion In Limine No. 6: To exclude evidence or argument that Hampsmire was arrested by a
private citizen.
GRANTED. The evidence does not support a citizen’s arrest theory. Defendants throughout
this litigation have asserted that Officer Hisquierdo arrested Hampsmire and Officer Vu acted as
Officer Hisquierdo’s “cover” during the arrest.
On February 3, 2014, at a pretrial conference, defendants first placed plaintiff on alert that
they might raise a theory of citizen’s arrest – i.e. that the officers made an arrest pursuant to a
citizen’s complaint and thus the Hampsmire arrest was not unlawful. Defendants then filed a
proposed jury instruction related to citizen’s arrest, Dkt. No. 99, and plaintiff filed the instant
motion in limine, Dkt. No. 100.
Under California’s citizen’s arrest law, a private person may arrest another for a pubic
offense committed in his presence. See Cal. Pen. Code § 837. Officers may arrest a suspect on
behalf of a private person if the private person committing the citizen’s arrest declares his intention
to arrest the suspect and then delegates to the officers his right to take the suspect into physical
custody. People v. Johnson, 123 Cal. App. 3d 495, 499 (1981) (“It is well established that a citizen
in whose presence a misdemeanor has been attempted or committed may effect a citizen’s arrest and
in so doing may both summon the police to his aid and delegate to police the physical act of taking
the offender into custody.”). Typically this express delegation of arresting authority is memorialized
through a signed citizen’s arrest form or statement. See e.g., Johanson v. Dep’t of Motor Vehicles,
36 Cal. App. 4th 1209, 1213 (1995) (“[Citizen arrestor] signed a citizen’s arrest form that indicated
he was arresting [suspect] for malicious mischief and vandalism.”); Atkins v. County of Alemeda,
No. C-03-3566, 2006 WL 1600651 at *3 (N.D. Cal. June 7, 2006) (“[Citizen arrestors] both filled
out and signed citizen arrest statements.”); Hampsmire v. City of Santa Cruz, 899 F. Supp. 2d 922,
927-28 (N.D. Cal. 2012) (“Police dispatch . . . informed Officer Bayani that the reporting party
wanted to sign a formal complaint. . . The reporting party signed a citation against plaintiff for a
[municipal] violation. . . [Then] Officer Bayani returned to plaintiff’s location to get his identifying
information and issue the citation.”).
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In the absence of a citizen’s arrest statement, a citizen’s arrest may be reasonably inferred

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from the circumstances and evidence. See People v. Harris, 256 Cal. App. 2d 455, 459 (1967).

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“[T]he delegation of the physical act of arrest need not be express, but may be implied from the

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citizen’s act of summoning an officer, reporting the offense, and pointing out the suspect.” Padilla

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v. Meese, 184 Cal. App. 3d 1022, 1030 (1986) (citing People v. Johnson, 123 Cal. App. 3d 495, 499

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(1981)).

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Here, there is insufficient evidence that any citizen actually delegated the act of arrest to the
officers or that the officers understood that they were effectuating a citizen’s arrest. Officers

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Hisquierdo and Vu both stated that Officer Hisquierdo performed the arrest while Officer Vu acted

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United States District Court
For the Northern District of California

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as “cover.” See Declaration of Jose Hisquierdo in Support of Defendant’s Opposition to Plaintiff’s

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Motion for Summary Judgment, Dkt. No. 41, ¶ 5 (“Officer Vu was acting as my ‘cover,’ his role

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was to protect me from any actual or potential threats while I was conducting the arrest.”);

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Declaration of Son Vu in Support of Defendant’s Opposition to Plaintiff’s Motion for Summary

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Judgment, Dkt. No. 40, ¶ 6 (“My role was to act as ‘cover,’ to protect Officer Hisquierdo from any

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actual or potential threats while he was conducting the arrest.”). Both Officer Vu’s and the City of

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San Jose’s interrogatory responses reiterate the arrest-and-cover story. See Dkt. No. 100-1 (Millen

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Decl. Ex. 1), Vu Interrogatory Response, at 3; Dkt. No. 100-1 (Millen Decl. Ex. 2), City of San Jose

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Interrogatory Response at 4. Finally, in the officers’ official reports, references are made to victims,

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witnesses and witness statements, but no reference is made to a citizen arrestor. See Amended

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Declaration of Richard D. North in Support of Defendants’ Opposition to Plaintiff’s Motion in

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Limine #6, Dkt. No. 105, Ex. A (“North Ex. A”).

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The facts here are that a party reported a disturbance; police were dispatched to investigate;

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witness statements reporting the commission of a misdemeanor were taken; and then the officers on

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the scene arrested the suspect. Defendants cite in support their claim of a citizen’s arrest two

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statements from witnesses saying “[Hampsmire] should be put in jail!” and, “[Hampsmire] should

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get a ‘cot’ and three square meals,” presumably meaning be put in jail. North Ex. A. Finding an

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implied citizen’s arrest from such statements would be a distortion of the law. The statements show

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no intention by the citizens to have the police arrest Hampsmire under the citizen’s authority. At
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most, the statements are suggestions about what the officers should do with Hampsmire under their

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own authority. Accordingly, the motion in limine to exclude testimony or argument that Officer

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Hisquierdo was making a citizen's arrest is GRANTED.

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IT IS SO ORDERED.

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Dated: August 13, 2014

_________________________________
RONALD M. WHYTE
United States District Judge

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United States District Court
For the Northern District of California

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SECOND ORDER RE MIL
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