Umar v. Storlie

Filing 84

ORDER on Motions in Limine 49 , 50 , 51 , 55 . Signed by Magistrate Judge Howard R. Lloyd on 10/15/2014. (hrllc1, COURT STAFF) (Filed on 10/15/2014)

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1 *E-Filed: October 15, 2014* 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 For the Northern District of California NOT FOR CITATION 8 United States District Court 7 SAN JOSE DIVISION 11 AMMIR UMAR, Plaintiff, 12 No. C12-06071 HRL ORDER ON MOTIONS IN LIMINE v. 13 [Re: Docket Nos. 49, 50, 51, 55] CRAIG STORLIE, 14 15 16 17 18 Defendant. ____________________________________/ Plaintiff Ammir Umar filed three motions in limine. Defendant Craig Storlie filed ten. All were discussed at the Pretrial Conference on May 15, 2014. Some were granted, some denied, and a few deferred. The court now issues its formal order on them all. 19 20 Plaintiff’s Motions 21 1. Exclude Umar’s Past Criminal History. Unopposed. GRANT. 22 2. Exclude Defense “Experts” Ngo and Morales. Since these proposed witnesses, 23 24 apparently, were not designated as experts, plaintiff argues they cannot testify as experts. The court agrees. However, they probably qualify to give lay opinion testimony under Fed. R. Evid. 701. 25 DENY. 26 27 28 3. Exclude Testimony of “Victim” Greg Burris. Buris, the second victim in this case, purportedly positively identified Umar in the photo lineup as the thief. But, it is undisputed that 1 Burris made the identification after Storlie submitted his affidavit of probable cause and the judge 2 issued the arrest warrant. Accordingly, his testimony appears to be irrelevant and should be 3 excluded. It would only become relevant if defendant cites persuasive authority for the proposition 4 that an insufficient showing of probable cause at the time of issuance of an arrest warrant can be 5 6 “cured” by the development of stronger evidence of probable cause prior to service of the arrest 7 warrant, even though that stronger evidence was not shared with the judge who issued the warrant. 8 Absent such authority, GRANT. 9 Defendant’s Motions For the Northern District of California United States District Court 10 1. Exclude Factual Innocence Determination and Outcome of Criminal Charges. 11 12 13 14 15 16 There is no dispute that Cal. Penal Code § 851.8(i) expressly prohibits introduction of evidence in this suit of factual innocence. GRANT. With respect to the outcome of the criminal charges, strong evidence that Umar had an alibi came to light, and the prosecutor dropped the charges. Defendant thinks that the jury should hear nothing about the outcome. Plaintiff argues that the jury should be told that charges were dropped 17 18 for insufficient evidence. Neither side’s position seems right. To say nothing about the outcome 19 would leave the jury guessing and invite speculation. To tell the jury that charges were dropped for 20 lack of evidence could invite it to assume that the probable cause showing must have been 21 inadequate, which is not necessarily so. The court prefers a middle ground, as follows: “After 22 Umar’s arrest, further investigation developed additional evidence that led the District Attorney to 23 24 drop the criminal charges and dismiss the case.” DENY in part, as indicated. 25 2. Exclude Evidence of Damages for Incarceration After District Attorney Filed Criminal 26 Complaint. The D.A. filed the complaint two days after plaintiff was arrested, but he remained in 27 custody another 27 days. There is no disagreement that under California law the filing of the 28 complaint by the D.A. cut off damages for false arrest, and the jury should be so instructed. But, 2 1 federal law is different. As to plaintiff’s 1983 claim, there is a presumption that a prosecutor 2 exercised independent judgment in filing the complaint. Normally, therefore, at that point damages 3 would be cut off. However, if the plaintiff can rebut the presumption, such as—for example—by 4 proving officers presented false information which tainted the prosecutor’s judgment, then damages 5 6 may not be cut off. The issue of the prosecutor’s independent judgment is disputed here, and the 7 court intends to submit the issue to the jury by appropriate instructions and verdict form. (If either 8 side feels this is an issue for the court to decide, promptly file a brief with pertinent authorities.) 9 DENY. For the Northern District of California United States District Court 10 3. Exclude Expert Testimony on Ultimate Issues. Storlie wants to limit plaintiff’s expert, 11 12 Roger Clark, to opining about police practices in general and not offer legal conclusions about 13 Storlie’s activities in this case. Umar, on the other hand, citing Fed. R. Evid. 704, argues that expert 14 opinion is not objectionable just because it embraces an ultimate issue. However, the distinction 15 between legal conclusions (not allowed) and ultimate issues (allowed) is a very murky one, and in 16 cases similar to this one courts have reached decisions going all over the map. This court comes out 17 18 as follows: Clark may testify that defendant’s activities did or did not comply with POST standards 19 or generally accepted police practices. He may not mention plaintiff’s factual innocence. He may 20 not opine on the presence or absence of probable cause, or on the “reasonableness” of the 21 investigation. He may not comment on Storlie’s subjective state of mind or on his credibility 22 (meaning, for example, he may not attribute to Storlie dishonesty, untruthfulness, lying, or engaging 23 24 25 26 27 28 in deliberate falsehood). He may not say Umar’s constitutional rights were violated. GRANT in part, as described. 4. Exclude Evidence of Umar’s Alibi. Defendant wants no mention of Umar’s alibi, namely that he was indisputably at work (because he is on the surveillance camera covering his work station) at the time of one of the charged crimes. The court has already indicated it will exclude 3 1 evidence that an alibi was the later-established evidence that caused the prosecution to drop the 2 charges. However, the court will not preclude plaintiff from testifying as to what he told the officers 3 about his whereabouts at the time the crimes were committed when they questioned him prior to 4 applying for the arrest warrant. DENY, as indicated. 5 6 7 8 9 5. Exclude Information Which Should Have Been Produced in Discovery But Was Not. GRANT. 6. Exclude Metro PCS Records. Irrelevant to the proximate cause determination. GRANT. 7. Exclude Pictures from Umar’s Cell Phone. Irrelevant. GRANT. For the Northern District of California United States District Court 10 8. Exclude Witnesses from Courtroom. Both sides agree. GRANT. 11 12 13 9. Exclude Reference to Settlement Discussions. Both sides agree. GRANT. 10. “Bifurcate” Punitive Damages. The trial will, potentially, be conducted in two phases. 14 Phase one will cover liability and compensatory damages. Evidence of defendant’s financial 15 condition may not be introduced. However, if the phase one jury verdict includes a finding that 16 Storlie acted with fraud, oppression, or malice, phase two will immediately commence. Each side 17 may introduce relevant evidence on punitive damages, then argue their respective positions. The 18 jury will be given appropriate instruction and retire to deliberate the single question of the amount, 19 if any, of punitive damages to award. GRANT, on the understanding that a two phase trial is the 20 functional equivalent of a “bifurcation.” 21 22 23 IT IS SO ORDERED. Dated: October 15, 2014 HOWARD R. LLOYD UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 4 1 C12-06071 HRL Notice will be electronically mailed to: 2 Christian Bayard Nielsen 3 Jaime Alejandro Leanos,,, 4 Nora Valerie Frimann 5 Shannon Smyth-Mendoza, 6 7 Counsel are responsible for distributing copies of this document to co-counsel who have not registered for e-filing under the court’s CM/ECF program. 8 9 For the Northern District of California United States District Court 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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