McNally v. Riis et al

Filing 78

ORDER on motions in limine. (ECF Nos. 44 , 45 , 46 , 47 , 48 , 49 , 50 , 51 , 52 ). Signed by Judge Janis L. Sammartino on 1/14/2020. (jpp)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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GREGORY S. MCNALLY,

Case No.: 18-CV-1150 JLS (AGS)
Plaintiff,

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ORDER ON MOTIONS IN LIMINE

v.
DANIEL RIIS,

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(ECF Nos. 44, 45, 46, 47, 48, 49, 50, 51,
52)
Defendant.

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Presently before the Court are Plaintiff Gregory McNally’s Motions in Limine (ECF

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Nos. 44–48). Also before the Court is Defendant Daniel Riis’ Motions in Limine (ECF

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Nos. 49–52). Defendant filed responses to Plaintiff’s Motions in Limine, (ECF Nos.

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64–68), and Plaintiff likewise filed responses to Defendant’s Motions in Limine (ECF Nos.

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69–72). The Court held oral argument on January 9, 2020. See ECF No. 74. Having

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reviewed the Parties’ arguments and the law, the Court rules as follows.

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LEGAL STANDARD

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“Although the Federal Rules of Evidence do not explicitly authorize in limine

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rulings, the practice has developed pursuant to the district court’s inherent authority to

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manage the course of trials.” Luce v. United States, 469 U.S. 38, 41 n.4 (1984). “A motion

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in limine is a procedural mechanism to limit in advance testimony or evidence in a

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particular area.” United States v. Heller, 551 F.3d 1108, 1111 (9th Cir. 2009). “In the case
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of a jury trial, a court’s ruling . . . gives counsel advance notice of the scope of certain

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evidence so that admissibility is settled before attempted use of the evidence before the

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jury.” Id. at 1111–12. Any ruling on a motion in limine, however, is necessarily tentative

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in nature; a “district court may change its ruling at trial because testimony may bring facts

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to the district court’s attention that it did not anticipate at the time of its initial ruling.”

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United States v. Bensimon, 172 F.3d 1121, 1127 (9th Cir. 1999).

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ANALYSIS
I.

Plaintiff’s First Motion in Limine

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In his first Motion in Limine, ECF No. 44, Plaintiff seeks to exclude evidence about

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his past alcohol consumption, ECF No. 44 at 4–5, as well as evidence that he consumed

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the prescription drug Xanax on the day of the incident. Id. at 5–6.

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A.

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Plaintiff contends that evidence regarding his past alcohol consumption is

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inadmissible under Federal Rules of Evidence 403 and 404. Id. at 4–5. While Plaintiff

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does not dispute the relevance or admissibility of evidence regarding his alcohol

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consumption and intoxication on the night of the incident, Plaintiff contends that evidence

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of his past alcohol consumption is inadmissible character evidence under Rule 404, id. at

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4, and would also fail Rule 403’s balancing test. Id. at 5. The Court agrees.

History of Alcohol Consumption

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While evidence of an “other act” used to show that on a particular occasion the

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person acted in accordance with their character is generally inadmissible, Fed. R. Evid.

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404, “[e]vidence of a person’s habit may be admitted to prove that on a particular occasion

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the person . . . acted in accordance with the habit or routine practice.” Fed. R. Evid. 406.

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“In deciding whether certain conduct constitutes habit, courts consider three factors:

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(1) the degree to which the conduct is reflexive or semi-automatic as opposed to volitional;

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(2) the specificity or particularity of the conduct; and (3) the regularity or numerosity of

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the examples of the conduct.” United States v. Angwin, 271 F.3d 786, 799 (9th Cir. 2001),

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overruled on other grounds by United States v. Lopez, 484 F.3d 1186 (9th Cir. 2007) (en

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banc). The party attempting to introduce the evidence has the burden of establishing that

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the conduct qualifies as evidence of habit. Id.

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Here, Defendant has failed to meet his burden to show Plaintiff’s history of drinking

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constitutes evidence of habit. Defendant offers insufficient evidence to show that Plaintiff

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drinking to excess and becoming quiet and subdued was “reflexive or semi-automatic” and

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achieved the status of habit. See Fed. R. Evid. 406 advisory committee notes (noting

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evidence of intemperate “habits” is generally excluded when offered as proof of

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drunkenness). Because the evidence does not constitute habit, the Court finds it is

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inadmissible other act evidence. See Fed. R. Evid. 404. And even if Plaintiff’s history of

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drinking alcohol did constitute evidence of habit, the Court finds its probative value is

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substantially outweighed by a danger of unfair prejudice.

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B.

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Plaintiff contends that the evidence he consumed Xanax on day of the incident has

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no probative value and is highly prejudicial and, thus, inadmissible under Rule 403’s

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balancing. ECF No. 44 at 5–7. Plaintiff contends that the probative value of evidence

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showing that Plaintiff consumed a Xanax pill “at some unknown time that day is minimal,

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especially in the absence of any toxicology test results reflecting the presence of any Xanax

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in Plaintiff’s body the evening of the incident.” Id. at 6. Defendant contends that there is

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a high probative value to Plaintiff’s use of Xanax because the use of the drug is highly

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probative as to whether Plaintiff’s intoxication was the reason he failed to recognize the

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officers were actually police and whether Plaintiff’s intoxication led to his failure to

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comply with the officers’ commands. ECF No. 64 at 3.

Drug Consumption

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Here, the Court finds that the evidence of Plaintiff’s Xanax consumption should be

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excluded under Rule 403. On one end of the scale, the Court finds the probative value of

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the alleged Xanax use is low. The only evidence of Plaintiff’s Xanax use is a single

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notation in his medical report that he took a 2mg Xanax pill at some unspecified time. ECF

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No. 44 at 4. Plaintiff testified he did not remember taking any Xanax the night of the

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incident or reporting to anyone at the hospital he took Xanax. Id. The evidence is therefore
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speculative at best and could lead to a mini-trial on the question of whether Plaintiff did or

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did not take the drug, which would only serve to confuse the issues to the jury.

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The evidence’s probative value is also low because Defendant has not introduced

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expert testimony about how Xanax affects a person of Plaintiff’s stature and, importantly,

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how Xanax reacts with alcohol. Defendant contends that he can point to Plaintiff’s past

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Xanax use to determine how Xanax personally affected Plaintiff. But allowing Plaintiff’s

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prior use of the drug into evidence would not only be highly prejudicial, but it would not

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be particularly probative of how it affected him on the night of the incident because

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Plaintiff did not testify he took Xanax in combination with alcohol on the previous

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occasion. Without expert testimony on the effects of the drug and without Plaintiff’s

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testimony about his personal experience taking the drug with alcohol, the jury would be

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left to speculate how Xanax and alcohol taken together may have affected Plaintiff’s ability

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to recognize officers and react to commands. The probative value of Plaintiff’s drug use

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is therefore slight, especially because Defendant can introduce other, uncontested evidence

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to show that Plaintiff drank alcohol and was intoxicated.

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On the other end of the scale, evidence of “[d]rug use is ‘highly prejudicial,’” United

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States v. Carpenter, 923 F.3d 1172, 1182 (9th Cir. 2019) (holding district abused its

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discretion by admitting evidence of drug use despite its probative value as to the

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defendant’s state of mind and disproving duress defense), and “could have a significant

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prejudicial effect upon the jury’s decision.” United States v. Vizcarra-Martinez, 66 F.3d

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1006, 1017 (9th Cir. 1995) (internal quotations omitted). The Court therefore finds the

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evidence’s probative value is substantially outweighed by its danger of unfair prejudice.
In sum, the Court GRANTS Plaintiff’s First Motion in Limine (ECF No. 44) in its

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entirety.

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II.

Plaintiff’s Second Motion in Limine

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Plaintiff moves to exclude the testimony of Defendant’s police procedures expert,

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Eric Daigle, as is relates to (1) the subjective perception, state of mind, or intent of

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Defendant; and (2) whether probable cause existed to arrest Plaintiff.
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Expert Testimony on Defendant’s Subjective Perception and State of Mind

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A.

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Plaintiff seeks to preclude testimony from Mr. Daigle regarding his “opinions

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emphasizing the importance of Defendant’s subjective perception and state of mind before

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and during the incident.” ECF No. 45 at 3. Plaintiff contends that “Mr. Daigle’s opinions

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go beyond the facts and circumstances confronting a reasonable officer on the scene[] and

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improperly focus on the manner the particular Defendant subjectively perceived stimuli

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from the scene.” Id. at 4. Defendant contends that his subjective perceptions leading to

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his use of force are relevant and that Plaintiff asserting otherwise “is a simple misstatement

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of the law.” ECF No. 65 at 3.

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The Court agrees with Plaintiff that Mr. Daigle’s opinions regarding how Defendant

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subjectively perceived stimuli both before and after the incident are not the proper focus of

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the reasonableness inquiry. See Graham v. Connor, 490 U.S. 386, 397 (1989) (“[T]he

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‘reasonableness’ inquiry in an excessive force case is an objective one: the question is

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whether the officers’ actions are ‘objectively reasonable’ in light of the facts and

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circumstances confronting them, without regard to their underlying intent or motivation.”);

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see also S.R. Nehad v. Browder, 929 F.3d 1125, 1133 n.5 (9th Cir. 2019) (noting “the

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objective reasonableness of an officer’s response” is not “dependent upon that officer’s

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subjective perceptions”). Moreover, any conclusions made by Mr. Daigle about whether

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Defendant used reasonable force based on Defendant’s state of mind and subjective

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perceptions are improper. See Mukhtar v. Cal. State Univ., Hayward, 299 F.3d 1053, 1066

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n.10 (9th Cir. 2002) (“[A]n expert witness cannot give an opinion as to her legal conclusion,

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i.e., an opinion on an ultimate issue of law.”).

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B.

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Plaintiff also seeks to preclude testimony by Mr. Daigle regarding whether probable

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cause existed under the objectively reasonable person standard because it is an ultimate

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issue of law on which it is not proper for an expert witness to opine. ECF No. 45 at 4–5.

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Defendant contends that Mr. Daigle’s opinion on whether an “objectively reasonable

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officer armed with the facts and circumstances known to Defendant Riis would have

Expert Testimony on Probable Cause

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determined that probable cause existed to arrest Plaintiff for resisting” is relevant and

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admissible. ECF No. 65 at 3–4. The Court agrees with Plaintiff that the expert testimony

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concerning probable cause is a legal issue and not the proper subject of expert testimony.

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See Torres v. City of Los Angeles, 548 F.3d 1197, 1214 n.11 (9th Cir. 2008) (holding district

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court abused its discretion when it denied motion in limine seeking to preclude testimony

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regarding whether there was probable cause for an arrest); Tobias v. City of Los Angeles,

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No. CV 17-1076 DSF (ASX), 2018 WL 9669923, at *8 (C.D. Cal. Dec. 7, 2018) (granting

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motion in limine seeking to preclude expert witness testimony as to whether probable cause

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did or did not exist).
The Court therefore GRANTS Plaintiff’s second Motion in Limine (ECF No. 45) in

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its entirety.

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III.

Plaintiff’s Third Motion in Limine

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Plaintiff asks the Court to exclude “any evidence, testimony, argument, or reference

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at trial to other incidents than the one at issue, including but not limited to ‘ambushes’ of

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law enforcement officers in other incidents, and specifically the Dallas, Texas police

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shooting the previous day.” ECF No. 46 at 6. Plaintiff contends that this type of

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information is irrelevant, confuses the issues, and has limited probative value that is

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substantially outweighed by the danger of unfair prejudice. Id. at 3–5. Defendant contends

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that information about the Dallas ambush was provided to him during the briefing on the

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night of the incident and is relevant because it provides “context and background to explain

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why the officers reacted the way they did.” ECF No. 66 at 4. Defendant asserts that he

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only intends to introduce evidence of specific information and warnings given to him and

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the other SDPD officers approximately two hours prior to the events in this case about the

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incident in Dallas. Id.

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The Court agrees with Plaintiff and excludes any evidence regarding the Dallas

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shooting, including any information provided to Defendant during the briefing before the

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incident. This information is not relevant to the objective reasonableness of the officer’s

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actions during the incident and instead is only relevant to how the officers may have
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subjectively perceived the events based on information about a shooting that is not related

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to the incident in this case. Further, this type of evidence may enflame the jury’s emotions

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and lead them to believe that Plaintiff presented a danger, not because of his actions, but

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because of events perpetrated by other individuals thousands of miles away.
The Court therefore GRANTS Plaintiff’s third Motion in Limine (ECF No. 46).

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IV.

Plaintiff’s Fourth Motion in Limine

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Plaintiff seeks to exclude the testimony of Defendant’s retained forensic video

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analyst, Mr. Grant Fredericks. ECF No. 47 at 2. The video in question is the surveillance

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video of the incident from the San Diego Metropolitan Transit System (“MTS”). Id. at 3.

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Mr. Fredericks analyzed a video converted to a .wmv file—not the original video which

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was a .ave file—and his subsequent report discusses only his opinions on the converted

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video and the problems caused by converting the file from a .ave file to a .wmv file. ECF

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No. 47 at 5. Defendant contends that although he did not address the original video in his

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report, Mr. Fredericks should be allowed to testify at trial about why he believes the

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original video is not scientifically reliable. ECF No. 67 at 2. Defendant contends that Mr.

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Fredericks could give his opinion as to why “the surveillance video does not depict events

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in real time” and instead “speed[s] up the events that occurred” because it has a low frame

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rate and seems choppy. Id. at 2–3.

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Plaintiff contends that that the Court must preclude Mr. Fredericks trial testimony

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regarding his opinions about the original video because his report only addresses issues

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related to the converted video. ECF No. 47 at 6. Under Federal Rule of Civil Procedure

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26(a)(2)(B)(i), expert reports must contain “a complete statement of all opinions the

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witness will express and the basis and reasons for them.” Plaintiff contends that under

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Rule 26(a)(2)(B)(i), Mr. Fredericks’ testimony would be limited to issues relating to the

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converted video and, because Plaintiff intends only to introduce the original video, his

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testimony would not “help the trier of fact to understand the evidence.” ECF No. 47 at 6.

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The Court must agree with Plaintiff.

Mr. Fredericks’ report focusses on the

problems created by converting the video and does not address the original video in any
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way. Defendant’s argument that the Court should nevertheless allow Mr. Fredericks to

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testify regarding the original video is far from persuasive. Mr. Fredericks’ testimony would

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not help the jury understand the video and is common knowledge. Moreover, to allow

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Defendant’s expert to offer opinions he did not include in his report and that Plaintiff had

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no chance to review and possibly rebut would be contrary to Federal Rule of Civil

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Procedure 26(a)(2)(B)(i) and highly prejudicial to Plaintiff.
The Court therefore GRANTS Plaintiff’s fourth Motion in Limine (ECF No. 47).

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V.

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Plaintiff’s Fifth Motion in Limine
Plaintiff seeks to exclude under Federal Rule of Evidence 403 evidence regarding:

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(1) Plaintiff’s

social

media posts

that

do

not

involve the incident; and

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(2) Plaintiff’s temporary psychiatric hold that occurred more than two years after the

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incident. ECF No. 48 at 3. Plaintiff contends that neither the social media posts nor the

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temporary psychiatric hold pertain to the incident in any way and therefore fail Rule 403’s

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balancing. Id. The Court agrees with Plaintiff and finds both the social media posts and

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the psychiatric hold’s probative values are substantially outweighed by the danger of unfair

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prejudice. See Fed. R. Evid. 403.
The Court therefore GRANTS Plaintiff’s fifth Motion in Limine (ECF No. 48) in its

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entirety.

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VI.

Defendant’s First Motion in Limine

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In his first motion in limine, Defendant seeks to preclude Plaintiff from playing the

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MTS surveillance video at trial or mentioning its existence. ECF No. 49 at 1. Defendant

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contends that the video is not an accurate depiction of the event because the video has no

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sound and depicts choppy, staccato movement. Id. at 4. Defendant describes the video as

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having “marginal relevance” that is “speculative at best,” arguing that it “will merely serve

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to confuse and mislead the jury.” Id. at 4–5.

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The Court must agree with Plaintiff that the video is relevant and that its probative

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value greatly outweighs any potential prejudice to Defendant. Despite the low frame rate

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leading to choppy movement, the video is an accurate record of the event. While Defendant
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may not like the contents of the video, “[a]s has been stated many times, Rule 403 does not

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protect a party from all prejudice, only unfair prejudice.” Deters v. Equifax Credit Info.

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Servs., Inc., 202 F.3d 1262, 1274 (10th Cir. 2000); see also United States v. Akpa, 120 F.

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App’x 717, 720 (9th Cir. 2005) (“Not everything that hurts is unfairly prejudicial.”).

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The Court therefore DENIES Defendant’s first Motion in Limine (ECF No. 49). See

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United States v. Curtis, 344 F.3d 1057, 1067 (10th Cir. 2003) (affirming admission of

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videotapes despite claims they “were murky, lacked sufficient clarity to identify any of the

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defendants, and were improperly suggestive”).

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VII. Defendant’s Second Motion in Limine

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Defendant moves to exclude any evidence or argument that (1) Plaintiff did not

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throw the iPhone charger at police and Police determined shortly after the incident that

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another individual had thrown the charger; (2) the City Attorney’s Office declined to

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charge Plaintiff with violations of Penal Code Sections 148(a)(1) (resisting arrest) or 647(f)

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(drunk in public); and (3) Plaintiff was unarmed during the incident. ECF No. 50 at 1.

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A.

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Defendant seeks to exclude evidence that officers learned after the incident that

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Plaintiff did not throw the iPhone charger. Id. at 4. Defendant contends that the jury may

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only look at the facts and circumstances before and during the event and that facts

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subsequently learned, such as the identity of who actually threw the charger, are irrelevant.

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Id. Plaintiff contends that the fact he did not throw the charger is relevant to Plaintiff’s

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behavior when he was confronted by police officers and that there is “a danger of unfair

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prejudice if the jury is left to speculate whether Plaintiff intentionally provoked Defendant

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to respond with violence.” ECF No. 70 at 6. Plaintiff also contends that the evidence is

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relevant to damages because Defendant learned shortly after the arrest that Plaintiff did not

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throw the charger, yet Defendant kept him handcuffed and facedown on the pavement and

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included the allegation that Plaintiff threw the charger in his police report, all of which

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shows Defendant’s conduct was “malicious, oppressive, or in reckless disregard” to

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Plaintiff’s rights. Id. at 7.

Evidence Regarding the Identity of Who Threw the iPhone Charger

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Here, the Court finds that this evidence would not be relevant to the question of

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whether there was probable cause or whether the force was reasonable. The Court does,

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however, find that the evidence is relevant to damages and would not unfairly prejudice

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Defendant. The Court therefore GRANTS IN PART Defendant’s motion as it pertains to

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the reasonableness of force used or to whether there was probable cause for the arrest and

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DENIES IN PART Defendant’s motion as it pertains to Plaintiff’s arguments regarding

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damages.

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B.

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Defendant moves to exclude evidence that the prosecutor declined to bring the

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charges against Plaintiff that Defendant submitted for criminal prosecution. ECF No. 50

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at 1. Defendant contends that this evidence has no bearing on the issue of whether

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Defendant’s actions were reasonable based on the facts and circumstances known to him

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at the time of the incident. Id. at 5.

Evidence That the Prosecutor Declined to Bring Criminal Charges

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It is true that “[e]vidence of an acquittal is not generally admissible in a subsequent

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civil action between the same parties since it constitutes a negative sort of conclusion.”

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Borunda v. Richmond, 885 F.2d 1384, 1387 (9th Cir. 1988) (internal quotations omitted).

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Plaintiff, however, does not seek to introduce this evidence “as proof of the facts” upon

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which the decision to decline the charges was based. See id. Instead, Plaintiff seeks to

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introduce this evidence as it relates to the issue of damages, specifically Plaintiff’s

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emotional distress. ECF No. 70 at 7; see Borunda, 885 F.2d at 1389 (“A plaintiff who

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establishes liability for deprivations of constitutional rights actionable under 42 U.S.C.

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§ 1983 is entitled to recover compensatory damages for all injuries suffered as a

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consequence of those deprivations . . . [including] compensation for . . . pain and suffering[]

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and mental and emotional distress that result from the violations.”). The fact that the

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charges were declined is also relevant “because it tends to show that [Plaintiff] was subject

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to this distress unnecessarily or without justification.” See Perez v. Cty. of Los Angeles,

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No. CV 10-5836 ABC (EX), 2012 WL 13005790, at *5 (C.D. Cal. Feb. 6, 2012). The

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Court therefore finds the evidence is relevant.
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The Court also finds that, although there is potential for prejudice, the probative

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value of the evidence outweighs that potential. See Fed. R. Evid. 403. The Court therefore

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DENIES Defendant’s motion regarding the prosecutor’s decision to decline charges

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against Plaintiff. Because the evidence will be admitted for a limited purpose, however,

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Federal Rule of Evidence 105 requires the Court “to restrict the evidence to its proper scope

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and entitles [Defendant] to an instruction cautioning the jury to the possibility of forbidden

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use and admonishing them not to use it for that purpose.” Borunda, 885 F.2d at 1388

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(citing Fed. R. Evid. 105). By January 17, 2020, the Parties SHALL SUBMIT a joint

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proposed limiting instruction to be read to the jury in conjunction with this evidence. If

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agreement is not possible, the Parties SHALL SUBMIT, by the same date, their respective

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versions of the limiting instruction and a brief, joint letter describing the basis for their

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disagreement.

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C.

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Defendant seeks to exclude evidence related to whether Plaintiff had a weapon at

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the time of the incident. ECF No. 50 at 5. Defendant contends that evidence Plaintiff was

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in fact unarmed, which Defendant found out after the incident, is irrelevant because only

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information known to him before and during the incident can be considered by the jury.

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Id. Plaintiff contends that Defendant plans to assert he believed Plaintiff was armed

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because he had his hands in his pockets. ECF No. 70 at 9. Plaintiff contends that evidence

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Plaintiff did not appear to be armed is essential to rebut Defendant’s assertion. Id.

Evidence That Plaintiff Was Unarmed

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The Court agrees with Plaintiff. Even if Defendant mistakenly believed Plaintiff

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was armed, the mistake must have been reasonable. See S.R. Nehad, 929 F.3d 1133–34.

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Allowing Defendant to suggest Plaintiff was armed without allowing Plaintiff the

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opportunity to rebut this evidence would lead to a substantial danger of unfair prejudice.

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The Court thus DENIES Defendant’s motion to exclude evidence that Plaintiff was

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unarmed. The Court will instruct the jury that they must judge the reasonableness of

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Defendant’s use of force from the perspective of an officer at the scene, not with 20/20

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hindsight.
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In sum, the Court GRANTS IN PART and DENIES IN PART Defendant’s second

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Motion in Limine (ECF No. 50). Specifically, the Court GRANTS Defendant’s motion

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regarding the identity of who threw the iPhone charger as it pertains to the reasonableness

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of force used or to whether there was probable cause for the arrest and DENIES

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Defendant’s motion as it pertains to Plaintiff’s arguments regarding damages; DENIES

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Defendant’s motion regarding the prosecutor’s decision to decline charges against

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Plaintiff; and DENIES Defendant’s motion to exclude evidence that Plaintiff was

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unarmed.

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VIII. Defendant’s Third Motion in Limine

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Defendant moves to exclude any “golden rule” argument, which asks the jury to put

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itself in the position of a party and decide the case from that perspective. ECF No. 51 at 5.

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Defendant also asks the Court to preclude any use of the “reptile theory,” which asks the

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jury to protect themselves and their community from Defendant by issuing a verdict to

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punish Defendant. Id. at 7–8. Defendant thus asks to exclude any references to public

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safety, community safety, the relative safety or danger of the jury or their families, and

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issuing a verdict to punish the City to promote public safety. Id. Plaintiff acknowledges

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that the “golden rule” argument is generally prohibited and states he does not intend to

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make any such arguments. ECF No. 71 at 2. Plaintiff contends, however, that the broad

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categories of public and community safety must be discussed and can be presented without

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it being “personalized as to the individual jurors, which is what the ‘golden rule’ argument

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prohibits.” Id.

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The Court agrees that “so-called ‘golden rule’ arguments are irrelevant to the actual

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damages alleged in this case and have a substantial likelihood of unfair prejudic[e] . . .

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because these arguments may encourage the jury to render a verdict based on personal

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interest and bias rather than on the evidence.” See Sialoi v. City of San Diego, No. 11-CV-

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2280 JLS (KSC), 2016 WL 6092590, at *1 (S.D. Cal. Oct. 18, 2016). Defendant’s request

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to preclude arguments concerning the “reptile theory” and the sweeping range of categories

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related to public safety, however, are far too broad and nebulous to rule on at this time.
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The Court can, and will, consider the permissibility of specific statements at trial and

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exclude them if they are impermissible. But as most Federal courts have done, the Court

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declines to make such a “broad prospective order untethered to any specific statements the

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other side will make.” Aidini v. Costco Wholesale Corp., No. 215CV00505APGGWF,

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2017 WL 10775082, at *1 (D. Nev. Apr. 12, 2017) (collecting cases denying motions

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seeking to exclude “reptile theory”). The Court therefore GRANTS IN PART and

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DENIES IN PART Defendant’s third Motion in limine (ECF No. 51). Specifically, the

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Court GRANTS the motion as it concerns the “golden rule” argument and DENIES

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WITHOUT PREJUDICE the motion as it concerns the “reptile theory” and general

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discussions of public or community safety.

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IX.

Defendant’s Fourth Motion in Limine

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Defendant’s final motion seeks to exclude evidence and argument that lesser force

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options could have been employed by Defendant. ECF No. 52 at 1. Defendant contends

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that because the Fourth Amendment does not require officers to use the least, or even less,

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intrusive force alternatives, evidence regarding lesser force options Defendant could have

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used would be “contrary to law, confuse and mislead the jury, and unfairly prejudice the

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jury against Defendant[].” Id. at 1, 4. Plaintiff correctly points out that under Ninth Circuit

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authority, “one of the factors that a jury may consider in an excessive force case is whether

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alternative methods of taking the plaintiff into custody were available.” ECF No. 72 at 2

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(citing Smith v. City of Hemet, 394 F.3d 689, 701, 703 (9th Cir. 2005); Chew v. Gates, 27

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F.3d 1432, 1441 n.5 (9th Cir. 1994)). Evidence pertaining to this factor is therefore

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relevant, and the Court finds its probative value would outweigh any unfair prejudice.

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Thus, the Court DENIES Defendant’s fourth Motion in Limine (ECF No. 52).

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CONCLUSION

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In light of the foregoing, the Court:

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1.

GRANTS Plaintiff’s First Motion in Limine (ECF No. 44);

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2.

GRANTS Plaintiff’s second Motion in Limine (ECF No. 45);

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3.

GRANTS Plaintiff’s third Motion in Limine (ECF No. 46);
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4.

GRANTS Plaintiff’s fourth Motion in Limine (ECF No. 47);

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5.

GRANTS Plaintiff’s fifth Motion in Limine (ECF No. 48);

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6.

DENIES Defendant’s first Motion in Limine (ECF No. 49);

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7.

GRANTS IN PART and DENIES IN PART Defendant’s second Motion in

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Limine (ECF No. 50). Specifically, the Court GRANTS Defendant’s motion as it pertains

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to the reasonableness of force used or to whether there was probable cause for the arrest

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and DENIES Defendant’s motion as it pertains to Plaintiff’s arguments regarding

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damages, the prosecutor’s decision to decline charges against Plaintiff, and that Plaintiff

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was unarmed;

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8.

GRANTS IN PART and DENIES IN PART Defendant’s third Motion in

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limine (ECF No. 51). Specifically, the Court GRANTS the motion as it concerns the

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“golden rule” argument and DENIES the motion as it concerns the “reptile theory” and

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general discussions of public or community safety; and
DENIES Defendant’s fourth Motion in Limine (ECF No. 52).

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9.

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These rulings are without prejudice, and the Parties may make valid

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contemporaneous objections at trial concerning the matters discussed in this Order. The

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Court reserves the right to change any of these rulings based on the testimony developed

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at trial. The Parties may not reference any subject excluded by the Court in front of the

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jury, absent further order of the Court.

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IT IS SO ORDERED
Dated: January 14, 2020

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