Rush v. Wienstein et al
Filing
194
MEMORANDUM DECISION AND ORDER RE: PLAINTIFF'S REVISED MOTION FOR A NEW TRIAL AND FOR SANCTIONS - Based on the foregoing, IT IS HEREBY ORDERED that: Plaintiffs Motion for a New Trial and for Sanctions (Dkt. 181 ) is DENIED as moot; and Plaintiffs Revised Motion for a New Trial and for Sanctions (Dkt. 191 ) is DENIED. Signed by Judge Raymond Edward Patricco, Jr. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (ac)
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UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO
CLINTON B. RUSH,
Case No.: 1:18-cv-00073-REP
MEMORANDUM DECISION AND
ORDER RE: PLAINTIFF’S REVISED
MOTION FOR A NEW TRIAL AND
FOR SANCTIONS
Plaintiff,
vs.
ANDREW D. WEINSTEIN; DONALD HEIDA;
and JANET MURAKAMI,
(Dkt. 191)
Defendants.
Pending before the Court is Plaintiff’s Revised Motion for a New Trial and for Sanctions
(Dkt. 191). The facts and legal arguments are adequately presented in the parties’ briefing and
the record. Accordingly, in the interest of avoiding further delay, and because the Court
conclusively finds that the decisional process would not be significantly aided by oral argument,
the Motion is decided based on the record. For the reasons that follow, there is no basis either to
order a new trial or to sanction Defendants’ counsel. The Motion is therefore denied.
I. FACTUAL AND PROCEDURAL BACKGROUND1
On February 14, 2018, Plaintiff Clinton Rush filed a lawsuit against Defendants Andrew
Weinstein, Donald Heida, and Janet Murakami (three Idaho State Police Officers). Mr. Rush
claimed that, as part of an October 4, 2017 encounter at the East Boise Port of Entry, at least one
Defendant purposely pepper-sprayed him down his pants and toward his genitals in the moments
leading up to his eventual arrest. In turn, Mr. Rush brought an excessive force/bodily integrity
1
The factual background of the case is stated with brevity, as it is already well-known to
the parties and the Court. For the sake of completeness, a more thorough discussion of the
factual background can be found within the Court’s September 20, 2021 Memorandum Decision
and Order (Dkt. 110).
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claim under 42 U.S.C. § 1983 against Defendants, alleging that each of them, acting under color
of state law, deprived him of his rights under the Fourth Amendment.
A five-day jury trial was held in this matter and, after deliberation, the jury returned a
verdict in Defendants’ favor on May 6, 2022. Special Verdict Form (Dkt. 179). The Court
entered judgment three days later. Jgmt. (Dkt. 180).
On May 11, 2022, Mr. Rush filed a Motion for New Trial and for Sanctions (Dkt. 181).
That motion, however, did not contain citations to the official trial transcript. At the Court’s
direction, Mr. Rush filed the at-issue Revised Motion for New Trial and For Sanctions (Dkt. 191)
on June 23, 2022, upon the official trial transcript’s filing.2 Therein, Mr. Rush argues that a new
trial should be granted because (i) he was prejudiced by the clear appearance that he was
incarcerated throughout the trial, (ii) Defendants’ counsel violated several limiting orders from
the Court, and (iii) Defendants’ counsel committed numerous acts of misconduct that prevented a
fair trial, resulted in manifest injustice, and violated the dignity of the courtroom. See generally
Mem. ISO Revised Mtn. for New Trial (Dkt. 191). Mr. Rush additionally submits that certain of
Defendants’ counsel’s misconduct amounted to bad faith that now warrants sanctions in the
amount of his costs and attorney’s fees at trial. Id. Defendants oppose the Motion in all
respects. Opp. to Revised Mtn. for New Trial (Dkt. 192).
II. LEGAL STANDARD
Federal Rule of Civil Procedure 59(a)(1)(A) permits courts to order a new trial on all or
some of the issues to any party after a jury trial “for any reason for which a new trial has
heretofore been granted in an action at law in federal court . . . .” Fed. R. Civ. P. 59(a)(1)(A).
“The authority to grant a new trial . . . is confided almost entirely to the exercise of discretion on
2
Mr. Rush’s original Motion for New Trial and for Sanctions (Dkt. 181) is therefore
denied as moot.
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the part of the trial court.” Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980). In ruling
on a motion for new trial, courts have the right and the duty to “weigh the evidence and assess
the credibility of witnesses, and need not view the evidence from the perspective most favorable
to the prevailing party.” Air-Sea Forwarders, Inc. v. Air Asia Co., 880 F.2d 176, 190 (9th Cir.
1989) (citations and quotation marks omitted); Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th
Cir. 2007). However, a court may not upset the verdict “merely because it might have come to a
different result from that reached by the jury.” Roy v. Volkswagen of Am., Inc., 896 F.2d 1174,
1176 (9th Cir. 1990) (citation and quotation marks omitted).
“Rule 59 does not specify the grounds on which a motion for new trial may be granted.”
Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020, 1035 (9th Cir. 2003). Rather, district courts
are “bound by those grounds that have been historically recognized.” Id. In the Ninth Circuit,
“[h]istorically recognized grounds include, but are not limited to, claims ‘that the verdict is
against the weight of the evidence, that the damages are excessive, or that, for other reasons, the
trial was not fair to the moving party.’” Molski, 481 F.3d at 729 (quoting Montgomery Ward &
Co. v. Duncan, 311 U.S. 243, 251 (1940)). Stated differently, “[t]he trial court may grant a new
trial only if the verdict is contrary to the clear weight of the evidence, is based upon false or
perjurious evidence, or to prevent a miscarriage of justice.” Passantino v. Johnson & Johnson
Consumer Prods., 212 F.3d 493, 510, n.15 (9th Cir. 2000).
III. DISCUSSION
Mr. Rush believes that he did not receive a fair trial for several reasons. First, he claims
that he was unfairly depicted as dangerous, owing to the presence of armed security officers
during trial, having to testify in leg restraints not visible to the jury, and being seen by two jurors
exiting the jail transport vehicle while in hand and leg restraints and wearing a prison jumpsuit.
Second, he claims that Defendants’ counsel disregarded Court orders limiting the evidence and
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scope of examinations at trial. Third, he claims that Defendants’ counsel engaged in actionable
misconduct by presenting irrelevant and overly prejudicial evidence, purposely misrepresenting
facts and testimony, and making inflammatory and vulgar statements throughout trial. Mem.
ISO Revised Mtn. for New Trial at 2-26 (Dkt. 191-1). According to Mr. Rush, these reasons
justify a new trial pursuant to Rule 59(a)(1)(A) and also support monetary sanctions against
Defendants’ counsel under the Court’s inherent powers and 28 U.S.C. § 1927. Id.3
Defendants preliminarily maintain that Mr. Rush forfeited his right to complain about
nearly all of these issues because of his counsel’s failure to object at trial. Opp. to Revised Mtn.
for New Trial at 2-3 (Dkt. 192). Regardless, they argue that there was no error at trial and, even
if there was error, it did not affect Mr. Rush’s substantial rights or the fairness of the
proceedings. Id. at 3-21. To the contrary, Defendants insist that the overwhelming evidence at
trial was that Defendants never pepper-sprayed Mr. Rush down his pants. Id.
The parties’ arguments are considered below.
A.
The Court’s Security Measures Did Not Inherently Prejudice Mr. Rush at Trial
At the end of the April 12, 2022 pre-trial conference, Defendants’ counsel asked “for
some kind of restraints” on Mr. Rush during trial because counsel “fear[ed] for the safety of
everyone in the courtroom.”4 He supported this position by noting Mr. Rush’s two prison terms
for battery on a police officer (including one stemming from the October 4, 2017 incident giving
rise to this action), his verbal combativeness while being deposed, and his mental illness. The
3
Mr. Rush generally organizes the arguments relating to the alleged violations of Court
orders and attorney misconduct by the different trial stages – specifically, Defendants’ opening
statement, Defendants’ cross-examination and direct-examination, and Defendants’ closing
argument. Mem. ISO Revised Mtn. for New Trial at 10-22 (Dkt. 191-1). This Memorandum
Decision and Order attempts to track this same outline for consistency’s sake.
4
The Court has listened to the audio recording of the April 12, 2022 pre-trial conference
and incorporates here the exact words used by Defendants’ counsel.
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Court rejected Defendants’ request and indicated that an unobtrusive United States Marshals
Service (“USMS”) presence would ensure courtroom safety instead.
Ultimately, as a state prisoner pursuing a Section 1983 action in federal court, the Court
ordered the Idaho Department of Corrections (“IDOC”) to coordinate Mr. Rush’s transport for
the purposes of his attendance and testimony at trial. Order Re: Pet. for Writ of Habeas Corpus
Ad Testificandum (Dkt. 159). And, because Mr. Rush remained in IDOC custody throughout
trial, two IDOC officers were likewise required to be present – each seated behind and off to the
side of Mr. Rush. A single USMS deputy was also positioned in the front corner of the
courtroom – closer to courtroom personnel – for the duration of the trial.5 Consistent with this
security arrangement, the IDOC officers were responsible for Mr. Rush while the USMS deputy
was responsible for the courtroom and its attendees.
Mr. Rush wore a suit and tie during trial and was never in any restraints while seated next
to his counsel. Before and after Mr. Rush testified, the Court took a break and dismissed the jury
so that he could be ushered to and from the witness stand (while in leg restraints). Mr. Rush
testified in leg restraints that were not visible to the jury.
At no time during trial did Mr. Rush’s counsel object to these security measures. Still,
Mr. Rush now argues that each of them – in addition to an incident on the final day of trial where
Mr. Rush believes that two jurors saw him in a prison jumpsuit while they were behind the IDOC
transport vehicle on its way to the courthouse – violated his right to a fair trial. Mr. Rush
contends that these instances improperly suggested that he is a dangerous criminal, were
“inherently prejudicial,” and justify a new trial under Claiborne v. Blauser, 934 F.3d 885 (9th
5
As with every court proceeding, a Court Security Officer (“CSO”) was also stationed in
the gallery near the entrance to the courtroom.
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Cir. 2019). Mem. ISO Revised Mtn. for New Trial at 3-5, 22-24 (Dkt. 191-1). The Court
disagrees.
In Claiborne, the Ninth Circuit considered whether the visible shackling of a pro se
plaintiff – a state inmate – during a three-day trial on his Section 1983 claims for excessive force
and deliberate indifference by defendant prison guards deprived him of a fair trial in violation of
the United States Constitution. Claiborne, 934 F.3d at 889-92. Critically, the case turned on
whether the defendants’ use of force against the plaintiff while escorting him within the prison
was excessive, or instead was justified by the plaintiff’s aggressive behavior. Id. at 899. The
plaintiff’s criminal record consisted of nonviolent property and drug offenses, he was not
considered violent or confrontational in jail, and he did not disrupt trial, act disrespectfully, or
attempt to escape. Id. at 898. Notwithstanding, the district court ordered him visibly shackled
during trial without any prior discussion of the need or reasons therefor. Id. at 892, 897-98.
Although the plaintiff did not object to the shackling during trial, he raised the issue in support of
his motion for a new trial. Id. The district court denied the motion, holding that it would have
imposed shackling over any objection at trial solely because of the plaintiff’s status as a
convicted felon who was serving a lengthy jail sentence. Id. at 893.
On appeal, the Ninth Circuit confirmed that errors not objected to at trial are generally
subject to waiver or forfeiture, stating: “‘Forfeiture is the failure to make a timely assertion of a
right, whereas waiver is the intentional relinquishment or abandonment of a known right.
Forfeited rights are reviewable for plain error, while waived rights are not.’” Id. at 893 (quoting
United States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997)).
The Ninth Circuit undertook plain error review. Id. at 893-94. Under plain error review,
courts consider whether (i) there was error; (ii) the error was obvious; (iii) the error affected
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substantial rights; and (iv) the error seriously affected the fairness, integrity, or public reputation
of judicial proceedings. Id. at 893, 897.
Against this standard, the court held that the district court plainly erred in allowing the
plaintiff to be visibly shackled throughout trial without any showing of a sufficient need for such
restraints. Id. at 898-99. Further, the court held that the plain error affected the plaintiff’s
substantial rights because his dangerousness was the “key issue” at trial. Id. at 899-900 (“In
short, if the jury believed that Claiborne posed a threat to the officers, then defendants prevailed
because their use of force was justified.”). Finally, the court found that the error seriously
affected the dignity of the court proceedings because shacking presents a unique affront. Id. at
900-01. Thus, the court reversed the district court’s denial of the plaintiff’s motion for a new
trial and remanded. Id. at 901.
Here, as a threshold matter, Mr. Rush – unlike the plaintiff in Claiborne – was
represented by counsel at trial. Mr. Rush’s counsel never objected to the security measures
imposed by the Court during the trial. He posits no reason why he could not have. Accordingly,
Mr. Rush forfeited his objection to the security measures. Id. at 893. Review of the measures,
then, is conducted for plain error. Id. at 893, 897.
Unlike Claiborne, where the court found plain error from the visible shackling of the
plaintiff, without a prior determination that shackling was necessary, there was no such plain
error here because Mr. Rush was not visibly shackled. Instead, at the April 12, 2022 pre-trial
conference, the Court considered Defendants’ counsel’s request for shackling Mr. Rush and
denied it. On this most crucial fact, Claiborne is distinguished.
The Court did, however, consider Defendants’ claims at the pretrial conference regarding
Mr. Rush’s dangerousness: namely, that Mr. Rush (i) had twice committed and been convicted of
battery on a police officer, (ii) was agitated and verbally combative during his deposition, and
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(iii) suffers from mental illness that causes delusions. Further, the Court had before it other
record evidence of Mr. Rush’s dangerousness.6 As a result, the Court determined that Mr. Rush
did pose a security risk at trial. So, the Court imposed the less restrictive alternatives to visible
shackling: (i) having two IDOC officers and one USMS deputy present in the courtroom; and (ii)
having Mr. Rush wear leg restraints, that were not visible to the jury, only while testifying.7
Accordingly, the Court satisfied Claiborne’s requirement that it make an individualized security
determination and properly exercised its discretion to balance Mr. Rush’s right to a fair trial with
maintaining courtroom security. See Morgan v. Bunnell, 24 F.3d 49, 51 (9th Cir. 1994) (“The
judge has wide discretion to decide whether a defendant who has a propensity for violence poses
a security risk and warrants increased security measures.”); see also Tr. at 1051:8-12 (Dkt. 190)
(Court stating: “So we’ve done our – the best we can possibly do to try to insulate Mr. Rush from
any prejudice from this, while maintaining the security of the courtroom for someone who is in
custody.”). Thus, there was no plain error here.
6
Mr. Rush’s own parole officer – speaking to Defendant Murakami while she and
Defendant Weinstein contemporaneously assessed Mr. Rush’s mental health status during their
interaction with him on October 4, 2017 – noted Mr. Rush’s generally-aggressive and violent
temperament, while relatedly commenting how Mr. Rush would “probably” have guns and drugs
in his vehicle. See Defs.’ Tr. Ex. 505 at 3:42:50-3:44:46 (Defendant Murakami’s “dash-cam”
video and recording). The Court previously considered this dash-cam video and recording when
it addressed Defendants’ Renewed Motion for Summary Judgment.
7
Mr. Rush argues that, even though the leg restraints were not visible to the jury during
his testimony, they could easily ascertain as much “given that the jury took a break every time
that [he] testified.” Mem. ISO Revised Mtn. for New Trial at 22 (Dkt. 191-1). This argument
assumes too much. There is no evidence that the jury associated any of its multiple breaks with
any of the Court’s security protocols. This argument also ignores how other courts attempt to
satisfy Claiborne by this exact, less restrictive alternative to visible restraints. See, e.g., Jones v.
Wood, 2022 WL 797891, at *2 (D. Ariz. 2022) (“[T]he Court will apply a table skirt to
Plaintiff’s table, concealing his restraints from the jury, and will ensure that Plaintiff approaches
and departs the witness stand outside the jury’s presence.”); Crago v. Pitz, 2022 WL 4094150, at
*2 (D. Ariz. 2022) (same).
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But even if there was, that error did not affect Mr. Rush’s substantial rights. Claiborne,
934 F.3d at 893. Here, in stark contrast to the “key issue” in Claiborne, whether the Defendants’
force was excessive, or instead justified by Mr. Rush’s dangerousness, was not an issue the jury
was asked to resolve. Indeed, the issue was effectively taken off the table by stipulation of the
parties and the Court’s jury instructions. The Court instructed the jury:
The parties have stipulated that intentionally pepper-spraying a person down
his pants and toward his genitals amounts to an unreasonable seizure and
excessive force that causes injury, in violation of the Fourth Amendment.
Therefore, to establish an unreasonable seizure and excessive force in violation
of the Fourth Amendment in this case, Plaintiff must prove by a preponderance
of the evidence that Defendants Weinstein, Murakami, and/or Heida
intentionally pepper-sprayed him down his pants and toward his genitals.
Conduct unrelated to Plaintiff’s specific allegation that Defendants Weinstein,
Murakami, and/or Heida intentionally pepper-sprayed him down his pants and
toward his genitals is not at issue in this case. In other words, any allegation by
Plaintiff as to any form of battery or unlawful touching by any Defendant (other
than the allegation of being pepper-sprayed down his pants and toward his
genitals) should not be considered by you.
Thus, if you find that Plaintiff has proven that one or more of the Defendants
intentionally pepper-sprayed him down his pants and toward his genitals, you
may find that Plaintiff has proven Element 2 of his Fourth Amendment Section
1983 claim by a preponderance of the evidence.
Jury Inst. No. 28 (Dkt. 183) (emphasis added).8 Thus, the jury was instructed to resolve one
question to decide the sole contested element: Did Defendants purposely pepper-spray Mr. Rush
down the front of his pants? If so, the jury was instructed that it amounted to excessive force,
regardless of Mr. Rush’s conduct. The jury is presumed to have followed the instruction.
Caudle v. Bristow Optical Co., Inc., 224 F.3d 1014, 1023 (9th Cir. 2000). As such, whether Mr.
8
This instruction speaks to the second of two elements of Mr. Rush’s Section 1983
claim against Defendants. The parties also stipulated that the first element of Mr. Rush’s claim
was established. Jury Inst. No. 27 (Dkt. 183) (“The parties have stipulated that each Defendant
acted under color of state law. So you may accept Element 1 as proven by a preponderance of
the evidence.”). No party objected to the jury instructions. Tr. at 741:12-25 (Dkt. 189).
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Rush posed a danger to Defendants, or was the aggressor, simply was not relevant in the way it
was in Claiborne. Hence, even if the jurors concluded from the presence of the IDOC officers
and USMS deputy that Mr. Rush was serving a jail sentence and was dangerous, it should not
have affected their verdict in the least. Unlike Claiborne, then, Mr. Rush’s substantial rights
were not affected by any purported error.
Finally, any purported error from the security measures did not affect the fairness,
integrity, or public reputation of the trial. Claiborne, 934 F.3d at 893. Again, visible shackling
presents a unique threat to these pillars. Id. at 895 (visible shackling can (i) undermine
presumption of innocence, and the fairness of factfinding, in a criminal trial; (ii) physically
impair attorney-client communication; and (iii) pose an affront to the dignity and decorum of the
proceedings). But visible shackling did not happen here. Instead, three officers guarded the
courtroom. Even if two officers had “IDOC” emblazoned across their chests, it is difficult to see
how this affected the fairness, integrity, or reputation of the trial in the same way that the vision
of Mr. Rush’s hands and feet restrained by cuffs and chains, and the sounds of those chains
clanging as he moved, would have. In sum, Mr. Rush’s Claiborne challenge to the security
measures fails.
For different reasons, Mr. Rush’s Claiborne challenge based on the transport incident
also fails. On the last day of trial, just after closing arguments and the Court excusing the jury
for deliberations, Mr. Rush’s counsel first brought to the attention of the Court his client’s
allegation that two jurors saw Mr. Rush dressed in a prison jumpsuit while in a transport vehicle
early that morning. Tr. at 1049:18-1050:20 (Dkt. 190). At that time, the Court observed that
polling jurors about the incident immediately before they began deliberations might draw undue
attention to it. Id. at 1051:22-25. Nonetheless, the Court directly asked Mr. Rush’s counsel
“what [he] would like the Court to do.” Id. at 1052:6-9. Mr. Rush’s counsel indicated that he
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just wanted to make a record and he did not want the Court to take any action. Id. at 1052:10-21
(Mr. Olsen: “You know, all I want to do at this point is to make a record.” Court: “All right. So
you're not asking the Court –” Mr. Olsen: “No. No. I agree with you. I think, at this point,
drawing any attention to it probably makes it worse. I just will make a record, just in case
something comes out during the deliberations and information that this has become an issue.
Then that's probably when we'll need to address it. Hopefully, that won't happen, but at least we
have a record now.”).
Having waited a full trial day, and after the jury retired to deliberate, to inform the Court
of the incident, and having not sought contemporaneous remedial measures when directly asked
by the Court, Mr. Rush has waived any claim for a new trial related to the alleged transport
incident. Claiborne, 934 F.3d at 893 (waiver is the “intentional relinquishment or abandonment
of a known right”) (quoting Perez, 116 F.3d at 845). Mr. Rush’s counsel proposed “pull[ing the
two jurors] aside” and having the Court inquire of them. Tr. at 1050:15-16 (Dkt. 190). So, it is
clear he understood he had the right to seek remedial measures to address any potential
prejudice. Yet, when asked directly what he wanted the Court to do, Mr. Rush’s counsel
declined any action by the Court. Supra. As such, Mr. Rush intentionally relinquished or
abandoned his right to seek remedial measures, and cannot now be heard to complain about any
purported prejudice. No plain error review, thus, is warranted. Claiborne, 934 F.3d at 893
(“Forfeited rights are reviewable for plain error, while waived rights are not.”) (quoting Perez,
116 F.3d at 845).
Even if plain error review was required, there was no plain error here. Mr. Rush was the
source of the allegation that two jurors – from a vantage point behind the transport van in which
he was riding – saw him and noticed his prison garb. To be sure, it is not clear if the two jurors
did, or even could have. Indeed, neither of them informed the Court that they had, or that they
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were aware anyone else had. If they had seen Mr. Rush wearing a prison jumpsuit while inside
the transport vehicle, the Court would have expected them to do so based on its instructions. See
Jury Inst. No. 11 (Dkt. 182) (“If any juror is exposed to any outside information, please notify
the court immediately.”).
Even if the two jurors did see Mr. Rush, but did not volunteer this information, this error
did not affect Mr. Rush’s substantial rights. As set forth above, this case did not turn on whether
Mr. Rush was dangerous or provoked the pepper-spraying; the jury was compelled to find
excessive force if they found Defendants intentionally sprayed pepper spray down Mr. Rush’s
pants. Supra. That the jury may have concluded that Mr. Rush may be in prison for assaulting
the Defendant officers, or for some other reason, would not have affected this finding, or its
verdict.
Further, Mr. Rush voluntarily chose to testify, and thereby exposed himself to
impeachment with his prior felony conviction. Infra (citing Tr. at 215:7-9 (Dkt. 187)). Once he
willingly put his felony conviction before the jury, the fact that he was also incarcerated at the
time of trial resulted in marginal (if any) additional prejudice. Finally, the Court repeatedly
instructed the jurors not to consider matters outside of court. Tr. at 1045:4-1048:5, 1050:21-25
(Dkt. 190); see also Jury Inst. Nos. 1, 6, 17 (Dkts. 182 & 183) (“You must decide the case solely
on the evidence before you. . . . In reaching your verdict, you may consider only the testimony
and exhibits received into evidence. . . . Anything you may see or hear when the court was not in
session is not evidence. You are to decide the case solely on the evidence received at the trial.”).
Again, jurors are presumed to follow jury instructions. Caudle, 224 F.3d at 1023. So, the fact
that Mr. Rush was imprisoned should not have been considered.
Under these circumstances, a new trial is not warranted.
B.
Defendants’ Counsel’s Conduct at Trial Does Not Now Warrant a New Trial
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As a separate basis for a new trial, Mr. Rush focuses upon Defendants’ counsel’s alleged
misconduct throughout the course of trial. Generally, misconduct by trial counsel results in a
new trial if “counsel’s actions were intentionally improper and the ‘flavor of misconduct
sufficiently permeate[d] an entire proceeding to provide conviction that the jury was influenced
by passion and prejudice in reaching its verdict.’” Langley v. Colegio, 854 Fed. Appx. 149, 152
(9th Cir. 2021) (quoting Hemmings v. Tidyman’s Inc., 285 F.3d 1174, 1192 (9th Cir. 2002)). In
evaluating the likelihood of prejudice from attorney misconduct, courts consider “the totality of
the circumstances, including the nature of the comments, their frequency, their possible
relevancy to the real issues before the jury, the manner in which the parties and the court treated
the comments, the strength of the case, and verdict itself.” Hemmings, 285 F.3d at 1193.
Mr. Rush’s argument primarily relies on two points: (i) Defendants’ counsel purposely
violated pre-trial orders and Court admonitions during trial, and (ii) Defendants’ counsel
generally abused the judicial process by improperly attacking his character at trial through the
repeated use of inflammatory and vulgar language. Mem. ISO Revised Mtn. for New Trial at 2,
10-11, 24-26 (Dkt. 191-1). His brief then segues into a montage of trial highlights – during
opening statement, cross-examination, direct-examination, and closing argument – where
Defendants’ counsel allegedly engaged in conduct that justifies a new trial. Id. at 11-22. The
Court addresses each argument in turn.
1.
Opening Statement
Mr. Rush argues that he was unfairly prejudiced at trial when, during Defendants’
opening statement, counsel (i) spent more than half of his time discussing events leading up to
Mr. Rush’s arrest, (ii) told the jury that Mr. Rush committed a felony, (iii) emphasized that Mr.
Rush was on parole, (iv) made numerous statements pertaining to Mr. Rush’s mental illness, and
(v) repeated vulgar statements made by Mr. Rush. Mem. ISO Revised Mtn. for New Trial at 11
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(Dkt. 191-1). Mr. Rush’s counsel did not object to any of these instances until moving for a new
trial, so plain error review applies (unless there was waiver). These arguments are without merit.
The Ninth Circuit has held that “where offending remarks occurred principally during
opening statement . . ., rather than throughout the course of the trial, [courts] are less inclined to
find the statements pervaded the trial and thus prejudiced the jury.” Settlegoode v. Portland
Public Schs., 371 F.3d 503, 518 (9th Cir. 2004). “[T]he trial court is in a superior position to
gauge the prejudicial impact of counsel’s conduct during the trial.” Anheuser-Busch, Inc. v.
Natural Beverage Distribs., 69 F.3d 337, 346 (9th Cir. 1995); see also McIntosh v. Northern Cal.
Universal Enters., Inc., 2010 WL 2698747, at *12 (E.D. Cal. 2010) (“Great deference is given to
the trial judge to gauge prejudicial effect of attorney misconduct.”). Defendants’ counsel’s
above-referenced conduct does not meet this standard.
a.
Events Leading Up to Mr. Rush’s Arrest
The events leading up to Mr. Rush’s arrest explained to the jury why law enforcement
was called to the scene, why Defendants initially detained Mr. Rush, and why Defendants
considered initiating a mental hold. 4/15/22 MDO at 10, 21-22 (Dkt. 156). This context helped
set the scene for the jury so that they were able to fully understand what was taking place in the
moments leading up to Mr. Rush’s altercation with Defendants. Id. Consequently, this allowed
the jury to properly assess the parties’ positions pertaining to Mr. Rush’s allegation that he was
purposely pepper-sprayed down his pants. That Defendants’ counsel may have spent more than
half of his opening statement supplying this background information was not improper.
b.
Statements About Mr. Rush Committing a Felony
As a result of Mr. Rush’s conduct on October 4, 2017, he was arrested and charged with
four criminal counts, including battery on a police officer. Yee-Wallace Decl. at ¶ 3(a) (Dkt.
33). Mr. Rush claims that Defendants’ counsel’s three references in opening statement to Mr.
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Rush having “committed a felony” that day were inflammatory and irrelevant, offered for the
improper purpose of attacking his character, and violated a Court order. See Mem. ISO Revised.
Mot. for New Trial at 11 (Dkt. 191-1). Defendants counter that the references were proper to
provide context for their reaction to the felonious battery, and regardless, no prejudice ensued
because the jury saw and heard evidence of Mr. Rush’s arrest. Opp. to Revised Mtn. for New
Trial at 6 (Dkt. 192).
The Court agrees with Defendants. Regardless of the purpose for which Defendants’
counsel made the references in opening statement, it was inevitable that the jury would (and did)
become aware that Mr. Rush committed a felony during trial. This was plain to the jury from the
moment they viewed the video of Mr. Rush punching Defendant Weinstein in the face without
provocation. It was reinforced by Mr. Rush’s subsequent arrest, also viewed by the jury on
video. Likely, most jurors are aware that arrests occur only for felony offenses, but typically not
misdemeanor offenses. As such, it is difficult to glean any prejudice to Mr. Rush from
Defendants’ counsel stating in opening that he committed a felony on October 4, 2017.
Moreover, referencing that Mr. Rush committed a felony was indeed relevant; it was part
of the story of the case on trial. When a felony is committed in a police officer’s presence, the
officer may conduct an arrest. When the felony is a violent felony (especially one directed at the
officer), the officer may use appropriate force to conduct the arrest. While the parties and the
Court narrowed the excessive force element the jury was to resolve (whether Defendants
purposely pepper-sprayed Mr. Rush down his pants), the fact that Mr. Rush beforehand
committed a violent felony battery against Defendant Weinstein provided context and
justification for the Defendants’ deployment of pepper-spray in the first instance. See Jury Inst.
No. 2 (Dkt. 182). As such, Defendants’ counsel had a good-faith basis to forecast this relevant
evidence in his opening statement.
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Nor did these references violate the Court’s April 15, 2022 Memorandum Decision and
Order. There, the Court considered Mr. Rush’s argument that his “past criminal history” should
be excluded from trial. Pl.’s Second MIL at 3 (Dkt. 141). The Court agreed, but only to a point
– namely, that a gratuitous recounting of Mr. Rush’s entire, unrelated, past criminal history,
including felony drug conviction resulting from the October 4, 2017 incident, were generally
inadmissible. 4/15/22 MDO at 21-22 (Dkt. 156) (“Plaintiff’s complete criminal history, like his
drug conviction standing alone, is of minimal relevance here and similarly risks unfairly
prejudicing Plaintiff under FRE 403.”) (emphasis in original). Importantly, however, the Court
discussed the admissibility of criminal convictions under FRE 609 and how certain “aspects of
Mr. Rush criminal history” remained important “frames of reference” for the jury. Id. (“[A]s a
practical matter, a wholesale exclusion of Plaintiff’s criminal history is impossible given its
context for the events alleged in Plaintiff’s Complaint.”). The commission of a felony mentioned
in Defendants’ opening statement were such appropriate contextual frames of reference that did
not violate the Court’s admonition against introducing Mr. Rush’s complete, past criminal
history into evidence.9
c.
Statements About Mr. Rush Being On Parole
References to Mr. Rush’s parole status are equally unavailing as plain errors.
Defendants’ counsel’s comments during opening statement about Mr. Rush’s parole status on
October 4, 2017, were not the first time the jury learned that Mr. Rush was on parole on that
date. Indeed, during his own opening statement, Mr. Rush’s counsel made this fact known. Tr.
9
At any rate, the jury soon learned via witness testimony that Mr. Rush had been
arrested on October 4, 2017 and no doubt would have concluded it was because he committed a
felony. Mr. Rush’s first witness after opening statements was Taylor Wasdahl. Mr. Wasdahl
was a Deputy Sheriff at the Ada County Jail on October 4, 2017. Tr.53:7-54:7 (Dkt. 186). He
testified during direct examination about Mr. Rush’s arrest and how Mr. Rush was housed at the
jail. Id. at 54:10-17, 60:9-61:9; see also id. at 65:8-66:3 (same during cross-examination).
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at 15:7-10 (Dkt. 186) (“Anyway, at some point they learn that he – Mr. Rush was on parole. So
at that point, they decided to try and call Mr. Rush’s parole officer.”). Having already brought
up this fact, it was not improper for Defendants’ counsel to do the same during his opening
statement.
d.
Statements Concerning Mr. Rush’s Mental Illness
Likewise, Defendants’ counsel only discussed Mr. Rush’s mental illness after Mr. Rush’s
counsel brought up the subject during his own opening statement. For example, Mr. Rush’s
counsel stated:
“At the time, he was in a state of – as has already been noted, he does
have some treatable mental illness. He was in a state of delusional
paranoia, but he was still coherent. But he was clearly going through
delusional thoughts and comments. Okay? Id. at 13:5-10.
“[Defendant Murakami] realized at the outset that she was dealing with
someone who was in a mental health crisis.” Id. at 13:16-18.
“But Trooper Weinstein shows up on the scene and what he does most
of the time is, basically, engage and talk with Mr. Rush and gets him to
talk about his various conspiracy theories, basically kind of feeds on his
delusions a bit.” Id. at 14:18-22.
“Ms. Murakami did get ahold of various units within her department and
got – and received an opinion that Mr. Rush was gravely disabled. In
other words, that he was a potential danger to himself and others. In
which case, you are brought to a mental hold.” Id. at 15-25-16:5.
“Now, Mr. Rush, who is in a paranoid state – and part of it was that he –
he was – if you’re familiar with people that are – that go through this
delusional-type paranoia, they start to think that everybody is against
them. They start to think that this is – you know, there are secret forces
at work to destroy them, right? Now, he’s still coherent and he’s
engaging in conversation, but he’s getting more agitated. And then he
hears that the third officer is on the way, and that raises his level of
anxiety to the point where he steps out of his vehicle and begins to pace.”
Id. at 17:3-15.
“Mr. Rush lunges at Trooper Weinstein and punches him in the face.
Okay. That is not an issue in this case. That’s an issue for a different
matter in a different place. You’re not to hold it against him because
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there are other ways of dealing with that. Keep in mind, he is gravely
disabled at the time.” Id. at 18:5-13.
“Now, they pull him up, take him to the patrol car, search him on the
hood of the car, and that’s where you start hearing some colorful
metaphors coming from Mr. Rush. So I want to warn you of that. But
keep in mind that he is in a delusional, paranoid state, but he is still aware
of what has happened to him.” Id. at 20:9-15.
“Now, one of the things that Mr. Rush did, despite his mental illness,
which is treatable – I think you’re going to find that Clinton is an
intelligent, articulate person. He’s not going to be the monster that the
defendants are putting him out to be.” Id. at 21:3-8.
In this setting, Defendants’ counsel did not run afoul of this Court’s order limiting the
admission of Mr. Rush’s mental illness.10 Because Mr. Rush’s counsel fronted the issue during
his opening statement, Defendants’ counsel did not have to wait until he cross-examined Mr.
Rush later at trial. As with Mr. Rush’s parole status, it was not improper for Defendants’ counsel
to refer to Mr. Rush’s mental illness and delusions during opening statement.
e.
Vulgar Comments Attributed to Mr. Rush
Defendants’ counsel’s occasional, verbatim restatements of words used by Mr. Rush
surrounding the October 4, 2017 incident are not overly concerning. While unquestionably offcolor and potentially problematic if needlessly repeated, these are Mr. Rush’s own words after
all, and contained within stipulated exhibits at trial. But more to the point, these words supplied
the jury with additional context as to Mr. Rush’s behavior, the extent of his beliefs, and his
10
Within its April 15, 2022 Memorandum Decision and Order, the Court concluded that
Mr. Rush’s “mental illness is relevant for context and to his ability to perceive and recall the
events giving rise to the instant dispute,” subject to FRE 403’s balancing considerations. 4/15/22
MDO at 11 (Dkt. 156). Even so, the Court restricted Defendants from referencing Mr. Rush’s
mental illness unless and until he testified. Id. (“Consistent with Rule 611(b), should Plaintiff
testify, Defendants may inquire about Plaintiff’s mental illness (and the delusional state it may
have caused on the date of the events in question) to impeach Plaintiff on his ability to perceive
and recall those events.”). However, Mr. Rush’s counsel changed this dynamic by fronting the
issue in his opening statement.
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mental state during relevant timeframes (both when dealing with Defendants initially and later at
the jail when describing being pepper-sprayed for the first time).
2.
Mr. Rush’s Cross-Examination
Mr. Rush argues that he was unfairly prejudiced at trial when, as part of Mr. Rush’s
cross-examination, Defendants’ counsel (i) told Mr. Rush he was “heavily medicated” during
trial; (ii) spent the first 40 minutes of Mr. Rush’s cross-examination on the time leading up to his
arrest; (iii) questioned Mr. Rush about his allegations concerning Defendants’ other acts of
violence that are not at issue in this case; (iv) asked Mr. Rush about being arrested for felonies
and that his conduct amounted to a felony; (v) asked Mr. Rush about his conversations and
communications with his lawyers; and (vi) asked Mr. Rush if he denied that he battered,
obstructed, or resisted Defendants. Mem. ISO Revised Mtn. for New Trial at 11-12 (Dkt. 1911). Mr. Rush’s counsel did not object to nearly all of these instances (the possible exceptions are
noted below) until moving for a new trial. These arguments are without merit.
a.
Telling Mr. Rush That He Was Heavily Medicated During Trial
Mr. Rush overstates his exchange with Defendants’ counsel about whether he was
heavily medicated during trial. The back-and-forth actually revealed the following:
Q:
Mr. Rush, you’re not the same person in this courtroom that you were out
on the field in that – on the day of your arrest. You’re a different person
today, aren’t you?
A:
Yes.
Q:
Well, for one thing, you’re heavily medicated. You were not on the day
at the Port of Entry, right?
A:
Actually, I’m on no meds right now.
Q:
Okay. But you’ve been medicated significantly since that time, haven’t
you?
A:
Yes.
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Q:
And you were not on your meds when you were, in fact, out at the Port of
Entry in October of 2017; isn’t that correct?
A:
Yeah, I was on my meds.
Q:
Well, that’s actually not true. You had gone off of your meds. Do you
remember saying that earlier?
A:
Well, I was off my meds, but – so I take a prescription. Every day, you
have to take meds. But that prescription, it stays in your blood for a long
time. And to go off your meds with that prescription, you would have to
go off your meds for like a good month. And I was only off for maybe a
few days. It is still in my system at that time.
Tr. at 160-61 (Dkt. 187). Defendants’ counsel’s examination on this point is properly
understood as a legitimate effort simply to understand whether, in fact, Mr. Rush was medicated
during trial. This might explain for the jury the difference in his affect during the incident versus
at trial. But apparently, he was not medicated during trial. Id. at 160. Regardless, with the
benefit of Mr. Rush’s more complete explanation on the matter, there was no resulting prejudice.
b.
Events Leading Up to Mr. Rush’s Arrest
As stated above, the events leading up to Mr. Rush’s arrest were relevant in this case.
Supra (“This context helped set the scene for the jury so they were able to fully understand what
was taking place in the moments leading up to Mr. Rush’s altercation with Defendants.”).
Further, the dash-cam videos that helped provide this vantage were stipulated exhibits. Tr.
28:11-15 (Dkt. 186) (Mr. Olsen: “Well, I move to admit all of the videos.” Mr. Kane: “So
stipulated.” The Court: “All right. So both parties are agreeing then.”). Defendants’ counsel did
not improperly rely on these videos to help describe the events leading up to Mr. Rush’s arrest.
Nor was it improper, absent an objection, for Defendants’ counsel to spend 40 minutes
discussing these predicate events.
c.
Other Acts of Violence
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During direct examination, Mr. Rush narrated video clips of his altercation with
Defendants. Mr. Rush variously commented how Defendants “were pushing on [his] neck,” how
at least one Defendant “took [his] neck and . . . tried to . . . break it,” how his neck and head were
“smashed in the ground,” and how Defendant Weinstein “was the one that was smashing [his]
head into the ground.” Id. at 95:18-19, 96:18-20, 102:19-20, 106:24-107:3. The Court allowed
Defendants’ counsel to cross-examine Mr. Rush on these statements. Id. at 138:9-11.
Defendants’ counsel cross-examined Mr. Rush the next day as follows:
Q:
Well, I don’t want to get too deeply into this. But, I mean, for example,
do you realize you started telling this jury yesterday that these officers
tried to break your neck? Do you remember that?
A:
You know, after I – I remembered – I remembered everything when I –
when they – when I actually went and – actually see the video and hear
the audio. That put me back in that situation that day. So it is hard –
you’re trying to say that I changed my story and I’m doubling down. It is
just . . . I never got to hear the video or the audio until the very end.
Q:
So you do admit, and you do realize, that you have never, in five years,
said to anyone, in any circumstance, including under oath, that they tried
to break your neck? Yesterday was the first time. Do you realize that?
A:
Yes.
Q:
And, again, when we’re talking about someone who is suffering from
delusions, how is the jury supposed to know what is real and what isn’t
when you do – when you say things like that?
Id. at 162:7-163:7 (Dkt. 187). This line of questioning related to the subject matter of Mr.
Rush’s direct examination as well as Mr. Rush’s credibility. As a result, it is consistent with
FRE 611(b) and therefore appropriate.
d.
Felony Arrests and Conduct Amounting to a Felony
Defendants’ counsel confirmed with Mr. Rush that, due to his conduct on October 4,
2017, he had been “arrested for several felonies” and that hitting a law enforcement officer
constitutes a felony. Id. at 163:22-24, 207:10-208:5. Mr. Rush argues that such questioning was
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improper because he was not asked about the crimes for which he had been arrested during direct
examination. Mem. ISO Revised Mtn. for New Trial at 12 (Dkt. 191-1). For the same reasons
discussed above in connection with opening statement, Plaintiff’s commission of felonies, and
his arrests therefor, were relevant and admissible to provide context for Defendants’ subsequent
deployment of pepper spray. Supra. And by the time Mr. Rush testified, the jury had heard
multiple references to his felony arrest, including by Mr. Rush’s counsel.11 There was no plain
error from this line of questioning.
e.
Conversations and Communications with Mr. Rush’s Lawyers
Mr. Rush takes issue with how Defendants’ counsel questioned him about his
relationship with his lawyers, in particular whether he remembered calling his public defender a
“punk-ass public defender.” Mem. ISO Revised Mtn. for New Trial at 12 (Dkt. 191-1) (quoting
Tr. at 299:23-24 (Dkt. 187)). But the Court sustained Mr. Rush’s counsel’s objection to this
question anyway. Tr. at 299:25-300:2 (Dkt. 187).12 And even after Defendants’ counsel moved
on, Mr. Rush nonetheless volunteered (when responding to an altogether different question) that
he actually “did call a public defender a ‘punk bitch.’” Id. at Tr. at 300:20-23. There is no
attorney misconduct here.
f.
Denials of Battery, Obstruction, or Resisting
11
There is again no question in the Court’s mind that the jurors already understood that
Mr. Rush had been arrested for his conduct on October 4, 2017. The preliminary jury
instructions (given to the jury before opening statements) referenced this. Jury Inst. No. 2 (Dkt.
182). Mr. Rush’s counsel’s opening statement mentioned this. Tr. at 11:19-12:4, 19:8-12 (Dkt.
186). Mr. Wasdahl testified to this. Id. at 60-9-14, 65:8-66:3. And Mr. Rush’s directexamination testimony discussed this at length. Id. at 91:16-21, 106:4-13.
12
The stated objection was for “lack of foundation [and] beyond the scope,” not as
argumentative. Tr. at 299:25-300:1 (Dkt. 187). Defendants incorrectly state that Mr. Rush’s
counsel did not object to this question. Opp. to Revised Mtn. for New Trial at 11 (Dkt. 192).
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In response to questions from Defendants’ counsel, Mr. Rush denied that he battered
Defendant Heida and that he resisted arrest. Id. at 212:12-213:5. Mr. Rush claims that this
inquiry was improper because it related to issues not before the jury. Mem. ISO Revised Mtn.
for New Trial at 12 (Dkt. 191-1). But Mr. Rush’s conduct immediately preceding the alleged
pepper-spraying down his pants helped explain what was happening at the time. Supra.
Characterizing Mr. Rush’s conduct as “resisting” and “battering” in the questions was not
improper. Regardless, “questions . . . by lawyers are not evidence.” Jury Inst. No. 6 (Dkt. 183).
And there is no prejudice. Mr. Rush denied these claims when asked and the Court did not
permit impeachment with his misdemeanor convictions for resisting arrest and battery. Tr. at
213:15-22 (Dkt. 187).
3.
Linda Rush’s Cross-Examination
During direct examination, Linda Rush (Mr. Rush’s mother) testified how her son has
been impacted by the events on October 4, 2017. She noted how Mr. Rush is anxious, stressed,
depressed, highly emotional, afraid, and has trouble sleeping. Id. at 551:18-553:7 (Dkt. 188).
On cross-examination – ostensibly to impeach Ms. Rush on her basis for knowing these alleged
impacts; namely that Mr. Rush had been apart from her continuously since 2017 – Defendants’
counsel asked Ms. Rush whether her son “has been in jail, mental hospitals, or prison
continuously since the day of his arrest back in 2017 . . . .” Id. at 553:17-21. Mr. Rush argues
that he was unfairly prejudiced by this line of questioning. Mem. ISO Revised Mtn. for New
Trial at 12-13 (Dkt. 191-1).
The Court agrees that the question was imprecise and objectionable. A better question
would have been a sanitized version: “You have not lived with your son since 2017, correct?”
Critically, however, Mr. Rush’s counsel objected to the question, the Court sustained the
objection, and instructed the jury to disregard the question. Tr. at 553:22-555:5 (Dkt. 188).
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Again, questions are not evidence and the jury was so instructed. Jury Inst. No. 6 (Dkt. 183).
And the jury is presumed to have followed the Court’s remedial instruction. Caudle, 224 F.3d at
1023. Accordingly, this single objectionable question presents no basis for a new trial.
4.
Defendants’ Direct Examination
Mr. Rush raises several overarching claims of unfair prejudice across Defendants’ direct
examination. For each, he argues that Defendants’ counsel disregarded a Court order by relying
on the dash-cam videos to organize Defendants’ testimony, before more specifically criticizing
Defendants’ counsel for repeatedly stopping the videos to accentuate Mr. Rush’s offensive and
delusional statements. Mem. ISO Revised Mtn. for New Trial at 13-15 (Dkt. 191-1). Mr. Rush’s
counsel did not object to these instances until moving for a new trial. These arguments are
without merit.
First, there is no Court order that limited the use of the dash-cam videos at trial – at least
not in the way that Mr. Rush now suggests. Instead, following pre-trial motions, the Court
precluded the “unredacted audio regurgitation” of Mr. Rush’s criminal history. 4/15/22 MDO at
22 (Dkt. 156) (presented in the context of real-time communications from police dispatch and
Mr. Rush’s parole officer and responding to Mr. Rush’s argument that his past criminal history
be excluded). This prohibition, however, did not extend to either party’s use of the dash-cam
videos at trial, especially where the videos recorded much of the incident and the parties
stipulated to their admission without reservation. Supra. Both Mr. Rush’s counsel and
Defendants’ counsel were permitted to use – and did use without specific objection – these
videos to elicit testimony from witnesses pertaining to the incident (before, during, and after).
Second, there is nothing objectively wrong with stopping the video to allow a witness to
comment on what is taking place or to clarify a matter in dispute. And, as stated above, the
instances where the video captured Mr. Rush’s crude and raving language provided insight into
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his agitated and delusional behavior at relevant points in time, including the incident itself. Id.
The check on any needlessly cumulative evidence is an objection under FRE 403 from opposing
counsel. Without one (and without commenting here on the merits of such an objection had one
even been made during trial), Defendants’ counsel’s use the dash-cam videos during Defendants’
direct examination was not improper.13
5.
John Kapeles’s Direct Examination
Mr. Kapeles is a chemical engineer. He is the person primarily responsible for the
engineering and product development of the “Less Lethal” product line at Safariland, LLC
(“Safariland”). Tr. 765:16-768:1 (Dkt. 189). Safariland manufactured the MK-3 First Defense
aerosol spray used by the Idaho State Police, including Defendants, on October 4, 2017. Id. at
772:12-16. Mr. Kapeles testified as an expert witness during Defendants’ case-in-chief.
Following pre-trial motions, the Court outlined the permissible scope of Mr. Kapeles’s
testimony at trial. With respect to his critique of Mr. Rush’s expert reports, Mr. Kapeles was
allowed to testify to (i) technical discrepancies (nomenclature-related) in the chemical
composition of pepper sprays generally, and the MK-3 product specifically; (ii) the claimedassociation between red “splotches” on Mr. Rush’s pants and any corresponding administration
of pepper spray thereon; (iii) inconsistencies between the composition of capsaicinoids found in
13
More specific to Defendant Weinstein, Mr. Rush argues that Defendants’ counsel
stopped and asked him about Mr. Rush calling him a “Nazi” and having him tell the jury that he
is Jewish. Mem. ISO Revised Mtn. for New Trial at 14 (Dkt. 191-1). Actually, with no
prompting, Defendant Weinstein testified about how these matters came about. Tr. at 671:8672:7 (Dkt. 188) (responding to Defendants’ counsel’s request that he “walk us through what
your conversations were,” Defendant Weinstein stating in part: “He at one point, brought up that
the Nazis were burying Jews underneath the ports. At one point, he brought up something and I
told him, No, that’s not true because I’m Jewish. I think it was – I can’t recall what he had called
me.”). It was only then that Defendants’ counsel attempted to clarify whether Mr. Rush accused
Defendant Weinstein of being a Nazi. Id. at 672:8-13 (Q: “Did he accuse you of being a Nazi?”
A: “I think so. I can’t recall.” Q: “All right. But, somehow, your religion came up?” A: “Yeah.
And I just threw it out there, No, that can’t be, I’m Jewish.”).
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Mr. Rush’s clothing and the pepper spray allegedly used by Defendants; and (iv) selective
reliance on incomplete data points to draw inferences, specifically concentrations of compounds
on selected areas of Mr. Rush’s pants and boxer shorts. 4/15/22 MDO at 7-8 (Dkt. 156).
Conversely, Mr. Kapeles was not allowed to testify (i) about alternate explanations for how
properly-deployed pepper spray directed at Mr. Rush’s upper body could still be detected within
his pants and boxer shorts (either via an undisclosed spray plume analysis or chemical
component migration theory), and (ii) that no pepper spray could have been deployed by a
cannister detected down Mr. Rush’s pants. Id. at 8-9.
Relevant here, Mr. Kapeles testified at trial about how the component parts of pepper
sprays are generally identified using liquid chromatography, and how, in the same way, pepper
sprays can be differentiated from one another:
Q:
All right. So you talk about assays. Can you be a little more specific of
what you mean when you say that?
A:
Assay refers to a quantitative analysis. So an analytical chemist will
determine, not just if something is in there, but how much of it is in there.
So in the case of our pepper sprays, we want to know, is it 50 percent
capsaicin or is it 46 percent capsaicin. And that’s what the analytical
chemist will tell us is how much is in there, not just whether it is in there.
Q:
And getting, maybe, a little too much into the weeds, is this what liquid
chromatography is about?
A:
That’s correct. That’s one of the analytical techniques that the chemist
would use to determine that.
Q:
So the difference is in liquid chromatography, when you’re trying to get,
say, capsaicin versus nordihydro[capsaicin] versus dihydro, how close are
those on the chromatography scale?
. . . .[14]
14
During a sidebar at this point, Mr. Rush’s counsel argued that liquid chromatography
is not Mr. Kapeles’s expertise. Tr. at 788:21-789:5 (Dkt. 189). This may be true. However, the
Court confirmed with Mr. Rush’s counsel that Mr. Kapeles, through his training and experience,
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Q:
When we left, we were talking about chromatography and how closely
the various capsaicinoids resemble each other. Could you be a little more
specific and kind of help the jury out on this?
A:
Chromatography is a separation technique that the chemists use to separate
a mixture by passing it through a medium. A medium is just like a gas or
a liquid. And then taking advantage of the fact that the components of that
mixture travel through the medium at different rates. And so the term they
use is retention time. And so as they pass this through the medium,
different components of the mixture have different retention times. And
that’s how they can separate one product from another.
In the case of pepper spray and capsaicinoids, those components are those
major capsaicinoids we talked about, dihydrocapsaicin and
nordihydro[capsaicin]. And they all have different retention times in the
chromatography.
Q:
When you say “different,” are they similar to each other?
A:
Some can be very similar. That’s part of the issues sometimes with doing
chromatography is if they have the same retention time, it is hard to tell if
it is one compound or another.
Q:
All right. And have you experienced that in your own world?
A:
I’ve seen instances of it where the – where two specific capsaicinoids have
the same retention time. And it is well documented in the literature,
capsaicin and nonivamide have the same retention time. So the chemist
has to use other techniques to try to get that separation to occur.
Tr. at 787:24-792:8 (Dkt. 189). Boiled down, the Court understands from this testimony that
liquid chromatography can reveal a pepper spray’s unique fingerprint (by the capsaicinoids’
different “retention times”) that is distinguishable from other pepper sprays.
Like before, Mr. Rush now argues that Mr. Kapeles’s testimony concerning liquid
chromatography is beyond the scope of his expertise and should not have been permitted at trial.
Compare Mem. ISO Revised Mtn. for New Trial at 15 (Dkt. 191-1), with Tr. at 788:21-789:5
is still aware how people within Safariland test for the presence of capsaicinoid compounds using
liquid chromatography. Id. at 789:6-25.
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(Dkt. 189). But this exaggerates Mr. Kapeles’s testimony. Mr. Kapeles discussed only how
liquid chromatography can be used to identify a pepper spray’s capsaicinoid composition – what
Safariland chemists do when quality-controlling its own product and assessing competitor
products. Tr. at 785:21-786:25, 789:6-17 (Dkt. 189).15 He never claimed to have actually
conducted such testing on Mr. Rush’s clothing, nor was he even qualified to do so. Critically, he
offered no expert opinion about liquid chromatography; he just provided his understanding of
how the test is conducted as background. Conversely, the import of his testimony was only that
the pepper spray identified on Mr. Rush’s pants and boxer shorts was not from an MK-3 pepper
spray based on its composition, and criticized how Mr. Rush’s experts (and counsel) tried to
make that connection. See, e.g., Defs.’ Expert Discl. at 6, 13 (Dkt. 106-2); Kapeles Aff. at ¶¶ 11,
16 (Dkt. 74-6); Tr. at 821:15-824:10 (Dkt. 189). Liquid chromatography provided the argument
for Defendants’ counsel to connect these dots. No pre-trial order was violated in this respect.
Supra (noting that Mr. Kapeles could testify about (i) technical discrepancies in the chemical
composition of pepper sprays, including the MK-3 product; and (ii) inconsistencies between the
composition of capsaicinoids found in Mr. Rush’s clothing and the MK-3 product).
6.
Port of Entry Employees’ Direct Examination
Defendants’ counsel questioned four Port of Entry employees (Pedro Melchor, Mike
Jack, Devin Dascenzo, and Kim Gale) as part of their case-in-chief. Tr. at 827, 855, 865, 878
(Dkt. 189). Mr. Rush argues that these witnesses were improperly used to cumulatively discuss
irrelevant and prejudicial facts. Mem. ISO Revised Mtn. for New Trial at 16 (Dkt. 191-1). The
15
Because the Court allowed Mr. Kapeles to testify about liquid chromatography
generally given his training and experience, Mr. Rush argues that it was unfair for the Court not
to allow Mackenzie Bentley (one of his experts) to testify about aerosol spray patterns given
discussions she had with her boss. Mem. ISO Revised Mtn. for New Trial at 15-16 (Dkt. 191-1).
Setting aside the false equivalence, the Court held that neither party’s experts could testify about
spray plumes. 4/15/22 MDO at 9, n.5 (Dkt. 156).
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Court disagrees. Each of these individuals were eyewitnesses to the incident. The fact that each
of these witnesses may have seen (and not seen) the same thing and testified accordingly at trial
does not make their testimony needlessly cumulative. The consistency in their testimony, while
possibly prejudicial to Mr. Rush, was not unfairly so. It was relevant to the parties’ claims and
defenses and assisted the jury during deliberation.
7.
Closing Argument
Mr. Rush argues that he was unfairly prejudiced at trial when, during Defendants’ closing
argument, counsel (i) again told the jury that Mr. Rush committed a felony, (ii) brought up other
non-felony criminal charges not at issue in the case, (iii) repeatedly painted Mr. Rush as violent
and insane, (iv) insinuated misconduct by the way Mr. Rush’s counsel handled and coordinated
the testing of the clothing Mr. Rush wore on the day of his arrest, (v) misrepresented expert
opinion and testimony about the presence of “red dye” on Mr. Rush’s clothing, (vi)
misrepresented expert opinion and testimony pertaining to possible “cross-contamination”
between Mr. Rush’s clothing, and (vii) played additional portions of the dash-cam video that
contained more of Mr. Rush’s off-color and delusional comments. Mem. ISO Revised Mtn. for
New Trial at 16-22 (Dkt. 191-1). Mr. Rush’s counsel did not object to any of these instances
until moving for a new trial. These arguments are without merit.
Courts are less inclined to find that offending remarks made during closing argument
pervaded the trial and prejudiced the jury. Supra (citing Settlegoode, 371 F.3d at 518). Federal
courts “erect a ‘high threshold’ to claims of improper closing [arguments] in civil cases raised
for the first time after trial.” Hemmings, 285 F.3d at 1193 (quoting Kaiser Steel Crop. v. Frank
Coluccio Constr. Co., 785 F.2d 656, 658 (9th Cir. 1986)). The rationale for this high threshold is
two-fold. First, “raising an objection after the closing argument and before the jury begins
deliberations permits the judge to examine the alleged prejudice and to admonish . . . counsel or
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issue a curative instruction, if warranted.” Id. As noted above, the trial judge is in a superior
position to evaluate the likely effect of the alleged misconduct and to fashion an appropriate
remedy. Supra (citing Anheuser-Busch, 69 F.3d at 346; McIntosh, 2010 WL 2698747, at *12).
Second, “allowing a party to wait to raise the error until after the negative verdict encourages
that party to sit silent in the face of claimed error.” Hemmings, 285 F.3d at 1193. Defendants’
counsel’s above-referenced conduct does not meet this standard.
a.
References to a Felony
There is no dispute that hitting a law enforcement officer is a felony and that Mr. Rush
was arrested and charged with a felony after hitting Defendant Weinstein on October 4, 2017.
Supra. Defendants’ counsel reminded the jury of this during his closing argument. Tr. at
1020:3-4, 1025:8-11, 1026:1-4, 1029:24-1030:1, 1038:1-3 (Dkt. 190). Mr. Rush argues that such
references were improper because (i) the Court previously ruled that defense counsel was not to
raise this as a point, and (ii) the matter had already been adjudicated and Mr. Rush already
served a six-month sentence. Mem. ISO Revised Mtn. for new Trial at 17 (Dkt. 191-1). The
Court disagrees.
As stated above, Mr. Rush’s commission of a felony was relevant to this case: it explains
why pepper spray was deployed in the first place. Supra. In addition, these references did not
violate the Court’s April 15, 2022 Memorandum Decision and Order. Id. Mr. Rush’s reliance
on a sidebar conference to prove otherwise is misplaced. Mem. ISO Revised Mtn. for New Trial
at 17 (Dkt. 191-1) (citing Tr. at 213:9-215:3 (Dkt. 187)). At that time, Mr. Rush had just
testified that he neither resisted arrest nor battered Defendant Heida. Tr. at 212:12-213:5 (Dkt.
187). Defendants’ counsel then requested a sidebar, during which he sought to impeach Mr.
Rush’s testimony with his misdemeanor convictions admitting to the same.
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Id. at 213:9-215:3. The Court denied Defendants’ counsel’s request to impeach with the
misdemeanor convictions to avoid litigating a collateral matter (including whether Mr. Rush had
already served his sentence for them), not because such impeachment was improper (Mr. Rush’s
trial testimony was inconsistent with his guilty pleas admitting to the conduct). Id. at 214:19215:2. Instead, under FRE 609, the Court allowed Defendants’ counsel generally to impeach Mr.
Rush’s credibility with his prior felony conviction. Id. at 215:7-9. Accordingly, Mr. Rush
misconstrues the nature of this sidebar exchange and the Court’s ruling. There was no blanket
ruling that Defendants could not reference that Mr. Rush committed a felony on October 4, 2017.
In sum, Defendants’ counsel’s closing argument in this regard was not improper.
b.
Other Non-Felony Criminal Charges
During his closing argument, Defendants’ counsel noted that Mr. Rush resisted arrest.
Tr. at 1021:10-13 (Dkt. 190). Mr. Rush argues that this reference was improper because that
issue was irrelevant to the case. Mem. ISO Revised Mtn. for New Trial at 17 (Dkt. 191-1). As
stated above, this conduct helps explain what was happening at the time Mr. Rush claimed to be
pepper-sprayed down his pants. Supra. Separately, Mr. Rush suffered no prejudice by this
remark. Id. He denied that he resisted arrest and, more importantly, the jury was able to assess
the merits of this dispute on its own from the videos entered into evidence. Id.
c.
References Painting Mr. Rush as Violent and Insane
Mr. Rush’s mental state was an issue at trial. See, e.g., 4/15/22 MDO at 11 (Dkt. 156)
(“Plaintiff’s mental illness is relevant to his ability to perceive and recall the events giving rise to
the instant dispute.”). This topic was understandably featured throughout trial (by both counsel),
including during Defendants’ counsel’s closing argument. Tr. 1026:1-4 (Dkt. 190). Mr. Rush
argues this was improper. Mem. ISO Revised Mtn. for New Trial at 17 (Dkt. 191-1). As stated
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above, Defendants’ counsel’s references to Mr. Rush’s mental illness and delusional comments
were appropriate topics at trial. Supra.
d.
Mr. Rush’s Counsel and Chain-of-Custody Issues
Well before trial, the Court confirmed with the parties that there were no chain-ofcustody issues pertaining to the handling of Mr. Rush’s clothing for forensic testing. See 9/20/21
MDO at 9, n.3 (Dkt. 110); see also Tr. at 446:16-24 (Dkt. 188). On the second day of trial,
however, it became apparent that Mr. Rush’s forensic expert – Ms. Bentley – did not actually test
the pants Mr. Rush wore on October 4, 2017; instead, she tested an altogether different pair of
pants, and, as it turned out, that pair still tested positive for remnants of pepper spray. Tr. at
384:13-386:6, 400:3-19 (Dkt. 187).
Ms. Bentley’s testimony was a surprise to the Court and Defendants’ counsel. Id. at
388:12-390:25. Indeed, the Court previously had convened a summary judgment motion
hearing, and ruled upon the motion, assuming that Mr. Rush’s expert had tested the pants that
Mr. Rush wore on October 4, 2017. See, e.g., 9/20/21 MDO (Dkt. 110). Conversely, Mr. Rush’s
counsel became aware of this two-to-three-weeks before trial, but did not inform Defendants’
counsel or the Court. Tr. at 398:23-399:1 (Dkt. 187), 433:20-434:8 (Dkt. 188).
When the mistake came to light during trial, Mr. Rush’s counsel stridently argued that it
was a non-issue (based on the scope of Ms. Bentley’s direct examination under FRE 611) and
not his fault. Id. at 387:9-392:9, 394:18-421:1 (Dkt. 187), 433:14-440:18 (Dkt. 188). The Court
eventually permitted Defendants’ counsel to cross-examine Ms. Bentley regarding the other pair
of pants, but precluded any mention of Mr. Rush’s counsel’s involvement as an intermediary in
the chain of custody between the jail and Ms. Bentley. Id. at 444:5-445:14, 446:3-15, 450:4-7,
451:1-2, 451:25-452:5 (Dkt. 188) (Court not wanting Mr. Rush’s counsel to become a witness in
his client’s trial).
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During his closing argument, Defendants’ counsel stated matter-of-factly that Mr. Rush’s
counsel sent the clothes to his experts for testing. Id. at 1031:11-12 (Dkt. 190) (“The clothes end
up in the hands of Mr. Olsen, who then sends them to a lab.”); see also id. at 1036:18-19
(Defendants’ counsel stating: “The clothes were in the jail, and they were given to Mr. Olsen,
period.”). Mr. Rush argues that these statements defied the Court’s order not to place Mr. Rush’s
counsel within the clothing’s chain of custody and improperly prejudiced him at trial. Mem. ISO
Revised Mtn. for New Trial at 19 (Dkt. 191-1). Though a closer call, the Court ultimately
disagrees.
Defendants’ counsel pushed the envelope and erred when he brought up Mr. Rush’s
counsel’s role in sending Mr. Rush’s clothing to his experts for testing. But the error ultimately
is one of Mr. Rush’s counsel’s own making. At a minimum, it was improvident for Mr. Rush’s
counsel not to notify Defendants’ counsel or the Court of the testing mix-up. Surely, he could
have foreseen that the issue might arise during Ms. Bentley’s cross-examination, and that
Defendants’ counsel and the Court would have to scramble to address it mid-trial. The Court
tried to extricate Mr. Rush’s counsel from the chain of custody and avoid him becoming a
witness as best it could. But given the circumstances, Defendants’ counsel certainly can be
excused for two offhanded references to Mr. Rush’s counsel receiving Mr. Rush’s clothing from
the jail and sending it off to Ms. Bentley for testing.
Notwithstanding, there was no prejudice to Mr. Rush from Defendants’ counsel’s
argument. First, on cross-examination of Ms. Bentley, and before the surprise became apparent,
Ms. Bentley testified that Mr. Rush’s counsel sent her two evidence bags full of Mr. Rush’s
clothing to test. Tr. at 385:10-20 (Dkt. 187). Counsel for Mr. Rush did not object to this
testimony. Thus, in closing argument, Defendants’ counsel technically did not argue facts not in
evidence; he just overstepped the Court’s remedial measure.
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Second, there was no evidence that the two bags of clothing that Mr. Rush’s counsel
received from the jail had been opened by him before he sent it to Ms. Bentley. Indeed, Ms.
Bentley appeared to receive the bag in a pristine, unopened state. See, e.g., id. at 398:1-10,
434:9-12, 455:1-456:1, 458:15-24, 496:6-17, 502:16-19 (Dkt. 188); Jury Inst. No. 25 (Dkt. 183).
As such, the jury could not have concluded that counsel for Mr. Rush was involved in
intentionally cross-contaminating the clothing for his client’s benefit.
Finally, Defendants’ counsel’s argument was not directed at counsel for Mr. Rush in an
attempt to implicate him in any wrongdoing. Instead, counsel’s objective was to erase any
thought that the Defendants themselves were within the chain of custody and had access to the
clothes. See, e.g., Tr. at 447:2-5 (Dkt. 188) (Defendants’ counsel stating during trial: “. . . I
know there’s not an issue of chain of custody, but we can’t let it be believed by this jury that we
sent them to the expert.”) (emphasis added). While Defendants’ counsel might have done this
differently, there was little, if any, prejudice to Mr. Rush. This is no basis for a new trial.
e.
Red Dye on Mr. Rush’s Clothing
During his closing argument, Defendants’ counsel indicated that Mr. Rush’s expert, Ms.
Bentley, found “red dye” on the pair of pants she tested. Id. at 1031:20-1032:2 (Dkt. 190). Mr.
Rush argues that this is incorrect because Ms. Bentley identified only “red splotches” on the pair
of pants, not red dye. Mem. ISO Revised Mtn. for New Trial at 19 (Dkt. 191-1). Any distinction
between these terms is immaterial.
During trial, the parties, their counsel, and the parties’ experts frequently used the terms
“red dye” and “red splotches” interchangeably – likely because Ms. Bentley used those same two
terms in her expert report. Tr. at 465:16-472:22 (Dkt. 188); see also id. at 491:11-12 (Mr.
Rush’s counsel asking: “Okay. Now, just to clarify the whole red dye, red splotches issue. . . .”);
id. at 944:5-8 (Dkt. 189) (Mr. Rush’s expert, Vanessa Fitsanakis, stating: “Correct. Because that
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was never – trying to analyze red dye or red splotches or fill in the blank with your favorite red,
was never part of the analysis.”) (emphasis added). Defendants’ counsel’s closing argument
actually confirmed this parallel usage when he said: “She found pepper spray residue on the
wrong pair of pants. But much more important, really, is that she also said she found red
splotches or red dye on these pants.” Id. at 1031:15-19 (Dkt. 190) (emphasis added). There is
no error here.
f.
Cross-Contamination
Before trial, the Court ordered that neither party’s experts could opine about alternate
explanations for how pepper spray residue could have migrated from Mr. Rush’s t-shirt (or the
ground) to his pants and boxer shorts. 4/15/22 MDO at 8-9 (Dkt. 156). This limitation
specifically included a theory about cross-contamination, namely, that Mr. Rush’s peppersprayed shirt cross-contaminated his pants and boxer shorts while in storage. Id. at 9. At trial,
the Court clarified that this limitation extended to a party’s cross-examination of the other party’s
experts. Tr. at 404:7-13, 409:12-410:9, 421:2-10 (Dkt. 187), 444:21-445:7 (Dkt. 188).
However, while testifying on cross-examination, Mr. Rush’s expert, Dr. Fitsanakis,
suggested that cross-contamination possibly explained the presence of pepper spray on the pair
of pants and boxer shorts that Ms. Bentley tested:
Q:
Were you aware before trial that [Ms. Bentley] had found nonivamide and
vanillic acid on the wrong pair of pants?
A:
A little bit before trial, but not very –
Q:
Not much?
A:
Not much.
Q:
All right. Did it give you pause at all that maybe the testing – there might
have been some flaw somewhere?
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A:
It did not. And it did – So did it give me pause? Yes. It gave me pause.
And I had to go back and look at the analysis. The – the article of clothing
that was – that was really in question was the boxer shorts. And when we
went back and looked at the total amount of capsaicin – of capsaicinoids
on the boxer shorts, compared to the jeans, there was still more
nonivamide on the boxers than there were on the jeans.
Q:
Well, that is true. But there’s not supposed to be any nonivamide on the
jeans at all if he didn’t wear them on the day in question; isn’t that true?
A:
The – because the clothing were stored together, and because there was
more nonivamide on the boxers than there were on the jeans, and because
the boxers were the article of clothing that were the main focus, it did not
give me as much pause as it would have if the chemical analysis had been
totally reversed.
Q:
You’re speaking about cross-contamination?
A:
Correct.
Q:
And so have you done any testing on cross-contamination of clothing
involving capsaicins?
A:
I have not.
Q:
Have you read any literature on cross-contamination of capsaicins on
clothing?
A:
I don’t believe so.
Q:
All right. So you’re assuming it is cross-contamination as a given, then;
is that right?
A:
I am not. I am not assuming that that is a given. As a – as a scientist, part
of what – part of what we do, as scientists, is we look at the objective data.
And objective data is that data which is determined, maybe without a story
behind it. So, for example, the chemical analysis that Ms. Bentley
conducted would have been objective chemical analysis, because the
machine didn’t get to – didn’t get to choose. The machine didn’t get to
make decisions. And so when I’m looking at the objective chemical data,
then part of what I wonder about is how that could have happened.
However, the analysis that was conducted was not done in such a way that
we could have – that we can determine that. So the focus of the analysis
was, are there capsaicinoids on the boxers. And if yes, what are they?
Q:
All right. So you don’t – you really can’t speak to cross-contamination
one way or another then; isn’t that correct?
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A:
That’s correct.
Id. at 940:5-942:23 (Dkt. 189) (emphasis added). Mr. Rush’s counsel did not object to this
exchange during trial. Indeed, on redirect examination, Mr. Rush’s counsel inquired about crosscontamination. Id. at 945:2-4 (Mr. Rush’s counsel asking Dr. Fitsanakis that she was not tasked
to look for cross-contamination).
During his closing argument, Defendants’ counsel brought up Dr. Fitsanakis’s abovereferenced testimony to explain Ms. Bentley’s results:
All right. Assuming that there’s any credibility at all now to the testing, given
that they found pepper spray on pants he didn’t wear, then what? How did it get
in his underwear? I mean, isn’t that the obvious question?
Well, I can tell you for sure, [Defendants] didn’t force their hands down his
pants. Otherwise, they are all perjuring themselves. Which you saw them all
testify. You know they told the truth.
So what is an alternate theory? Who told you? Their own expert, Vanessa
Fitsanakis. Well, they were all in the same bag. Oh, you mean they crosscontaminated? Yes. So you’re telling me that the underwear and the pants he
didn’t wear cross-contaminated? Yes. That kind of makes sense that
[Defendants] told you on day one, when you take clothes with pepper spray and
you put them all together and you put them in a bag and you leave them there
for two years, it is going to cross-contaminate.
How do we know that? How can you be 100 percent sure there was crosscontamination? It was the shirt. Remember I told you, you saw he had his jacket
on, zipped up. How does pepper spray end up on his shirt, on his back? How
does that even happen? Did the pepper spray that [Defendant Murakami] fired
take a U-turn? No. It is cross-contamination.
Id. at 1035:12-1036:16 (Dkt. 190). Mr. Rush now objects to these statements, arguing that they
ignored the Court’s order precluding experts from testifying about cross-contamination. Mem.
ISO Revised Mtn. for New Trial at 20-21 (Dkt. 191-1). The Court disagrees.
To begin, Dr. Fitsanakis herself theorized how cross-contamination may have accounted
for the presence of pepper spray on a pair of pants not worn on October 4, 2017. Critically,
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Defendants’ counsel did not posit the theory to her; instead, he asked only about flaws in Ms.
Bentley’s analysis and the incongruity of a pepper spray component appearing on pants Mr.
Rush did not wear on the day of the incident. In response, Dr. Fitsanakis volunteered the theory
of cross-contamination. Appropriately, then, Defendants’ counsel asked follow-up questions.
But more crucially, the Court never precluded Defendants’ counsel from arguing about
cross-contamination. Just the opposite. 4/15/22 MDO at 9 (Dkt. 156) (“Defendants’ counsel
may still make these common-sense arguments to the jury for them to consider and resolve. . . .
Again, Defendants’ counsel may cobble the admitted evidence into such an argument at trial, but
Mr. Kapeles himself, as an expert, cannot take such a stand.”). With all this in mind, it was not
improper for Defendants’ counsel to make cross-contamination-related arguments during his
closing argument.16
g.
Further References to Portions of the Dash-Cam Videos
During his closing argument, Defendants’ counsel again played portions of the dash-cam
videos for the jury’s consideration. Tr. at 1028:6-1029:10 (Dkt. 190). This time, he did so to
argue that, when being transported from the Port of Entry to the jail, Mr. Rush did not make any
reference to being pepper-sprayed. Id. Mr. Rush argues that the use of the dash-cam videos for
this purpose was improper. Mem. ISO Revised Mtn. for New Trial at 22 (Dkt. 191-1). As stated
above, the Court disagrees. The dash-cam videos were stipulated exhibits and showed Mr.
Rush’s behavior at relevant points in time. Supra. The argument was proper.
16
Mr. Rush also takes issue with how, as part of this portion of his closing argument,
Defendants’ counsel suggested that Mr. Rush’s counsel was responsible for any crosscontamination. Mem. ISO Revised Mtn. for New Trial at 21 (Dkt. 191-1) (citing Tr. at 1036:1719 (Dkt. 190)). This argument has already been addressed. Supra. Still, the jury was already
instructed on this point. Jury Inst. No. 25 (Dkt. 183) (“The parties have agreed that all of the
clothing that Mackenzie Bentley tested was received on February 20, 2020 and was in the same
paper bag and all together with the other clothing. You must therefore treat these facts as having
been proved.”).
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Mr. Rush’s Motion for New Trial is denied in these respects.17
C.
Defendants’ Counsel’s Conduct Is Not Sanctionable
Mr. Rush claims that Defendants’ counsel engaged in bad faith and should be sanctioned.
Mem. ISO Revised Mtn. for New Trial at 26-27 (Dkt. 191-1). This argument is premised upon
the alleged impropriety of Defendants’ counsel’s conduct at trial. Id. However, Defendants’
counsel’s conduct does not remotely rise to the level of willful disobedience or bad faith. Supra.
Therefore, no basis for sanctions exists.
IV. CONCLUSION
Mr. Rush’s arguments do not persuade the Court that he is entitled to the “extraordinary
remedy” he seeks – vacating the jury’s verdict and holding a new trial – which is “to be used
sparingly in the interests of finality and conservation of judicial resources.” Wood v. Ryan, 759
F.3d 1117, 1121 (9th Cir. 2014). The Court’s security measures, and the alleged transport
incident, did not inherently prejudice Mr. Rush at trial. Indeed, this case is patently
distinguishable from Claiborne because Mr. Rush was not visibly shackled and the issue of Mr.
Rush’s dangerousness was removed from the jury’s consideration by virtue of the parties’
stipulation and the Court’s instruction defining excessive force.
Moreover, Defendants’ counsel’s conduct at trial was not improper. While, at times,
Defendants’ counsel’s questioning and arguments pushed the envelope of the Court’s pretrial
rulings, those rulings were not meant to sanitize the case of all contextual facts. Instead, the
17
Mr. Rush’s reply briefing argues, for the first time, that Defendants’ counsel’s
“vouching” during closing argument provided an additional basis for a new trial. Reply ISO
Mtn. for New Trial at 8-11 (Dkt. 193). The Court has no obligation to consider arguments raised
for the first time in a reply brief and declines to do so here. See, e.g., Zamani v. Carnes, 491
F.3d 990, 997 (9th Cir. 2007) (holding that a “district court need not consider arguments raised
for the first time in a reply brief”) (citing Koerner v. Grigas, 328 F.3d 1039, 1048 (9th Cir.
2003)); Bazuaye v. INS, 79 F.3d 118, 120 (9th Cir. 1996) (“Issues raised for the first time in the
reply brief are waived.”).
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rulings were meant to focus the jury on the crucial issue – whether the Defendants purposely
sprayed pepper spray down Mr. Rush’s pants – and prevent experts from speculating about it.
Defendants’ counsel substantially complied with all of the Court’s pretrial rulings.
Further, even if Mr. Rush could make out a plausible claim that Defendants’ counsel did
not, the Court finds that, given the totality of the circumstances, the jury’s verdict was supported
by sufficient evidence in the record. That verdict will not be disturbed. Hemmings, 285 F.3d at
1195 (concluding that a new trial was not warranted where, absent counsel’s misconduct, the
jury likely would have returned the same verdict).
V. ORDER
Based on the foregoing, IT IS HEREBY ORDERED that:
1.
Plaintiff’s Motion for a New Trial and for Sanctions (Dkt. 181) is DENIED as
moot; and
2.
Plaintiff’s Revised Motion for a New Trial and for Sanctions (Dkt. 191) is
DENIED.
DATED: December 7, 2022
________________________
Honorable Raymond E. Patricco
Chief U.S. Magistrate Judge
MEMORANDUM DECISION AND ORDER - 40
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