Ponce Alvarez v. King County et al

Filing 59

ORDER granting in part and denying in part defendants' 41 Motion in Limine; granting plaintiff's 42 Motion in Limine; the Court directs Defendants to submit proposed limiting instruction no later than Friday, July 28, 2017 signed by Judge Richard A Jones.(RS)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 MOISES E. PONCE ALVAREZ, ORDER Plaintiff, 11 CASE NO. C16-0721RAJ v. 12 KING COUNTY, et al., 13 Defendants. 14 15 I. INTRODUCTION 16 This matter comes before the Court on Plaintiff Moises E. Ponce Alvarez’s 17 Motions in Limine, (Dkt. # 42) and Defendant King County’s Motions in Limine, 18 (Dkt. # 41). Having considered the briefs submitted by the parties, relevant portions of 19 the record, and the applicable law, the Court GRANTS in part and DENIES in part the 20 parties’ motions. 21 22 II. BACKGROUND Plaintiff alleges that the Defendants, all King County Sheriff’s deputies, used ORDER - 1 1 excessive force while arresting him on May 21, 2014, in violation of the Fourth and 2 Fourteenth Amendments. Dkt. # 1 at ¶¶ 5.1-5.6; 6.1-6.6. Discovery has closed, the 3 dispositive motions deadline has passed, and trial is set for July 31, 2017. 4 III. 5 LEGAL STANDARD Parties may file motions in limine before or during trial “to exclude anticipated 6 prejudicial evidence before the evidence is actually offered.” Luce v. United States, 469 7 U.S. 38, 40 n.2 (1984). To resolve such motions, the Court is guided by Federal Rules of 8 Civil Procedure 401 and 403. Specifically, the Court considers whether evidence “has 9 any tendency to make a fact more or less probable than it would be without the 10 evidence,” and whether “the fact is of consequence in determining the action.” Fed. R. 11 Evid. 401. But the Court may exclude relevant evidence if “its probative value is 12 substantially outweighed by a danger of one or more of the following: unfair prejudice, 13 confusing the issues, misleading the jury, undue delay, wasting time, or needlessly 14 presenting cumulative evidence.” Fed. R. Evid. 403. 15 // 16 // 17 // 18 // 19 // 20 // 21 // 22 // ORDER - 2 1 2 3 4 5 6 7 I. MUTUALLY AGREED MOTIONS IN LIMINE 1. The parties will not offer expert opinions that were not disclosed during discovery or that are otherwise improper. 2. Defendants will not use or offer any documents regarding the Plaintiff that were not produced by the Defendants during discovery. 3. The parties will not present exhibits that were not disclosed prior to trial in accordance with Federal Rule of Civil Procedure 26(a)(3). 8 4. The parties will not reference any settlement or settlement communications and 9 will redact any records that reflect settlement communications. 10 5. Defendants will not present any evidence or make any references to any instances 11 where Plaintiff was investigated, charged or convicted of a crime that is unrelated 12 to the police conduct at issue in this case. 13 14 15 6. The Defendants will not refer to any potential impact the verdict may have on them or on the public’s safety. 16 7. The Defendants will not present evidence regarding the “good character” or other 17 “good” acts of the Defendants or any witnesses, unless the Plaintiff “opens the 18 door” by placing the Defendants’ or other witnesses’ character at issue. 19 8. Defendants will not reference Plaintiff’s immigration status. 20 9. The parties agree not to reference these motions in limine or any evidence that has 21 been excluded. 22 ORDER - 3 1 10. Defendants will not make any claim or suggestion that they will be personally 2 liable for compensatory or punitive damages. 3 4 5 6 11. The parties agree not to reference the Defendants’ financial status, insurance or lack thereof. 12. Plaintiff will not reference unrelated internal investigations or disciplinary actions 7 involving Deputies Buchan, Bertaina, Hennessy or Price, unless Defendants 8 “open the door” to impeachment. 9 13. The parties agree not to refer to the “golden rule” or similar themes, whether 10 directly or indirectly. This includes any argument that asks jurors to place 11 themselves in the position of either party or to grant relief that they would feel 12 entitled to if they were in the same position. 13 14 14. Defendants will not reference Plaintiff’s past drug or alcohol use unless Plaintiff “opens the door.” 15 15. Defendants will not reference or appeal to the self-interest of the jurors as 16 taxpayers. 1 17 18 19 20 21 1 22 Mutually Agreed Motions in Limine Nos. 14-15 were agreed upon as represented on the record by the parties during the July 11, 2017 Pretrial Conference. Dkt. # 46. ORDER - 4 1 2 IV. A. PLAINTIFF’S MOTION IN LIMINE Failure to Mitigate 3 Plaintiff seeks to exclude any evidence or argument that he failed to mitigate his 4 damages. Dkt. # 42 at 6 (citing Cox v. Keg Restaurants U.S., Inc., 935 P.2d 1377, 1380 5 (Wash. App. Ct. 1997)). “The doctrine of mitigation of damages imposes on a party 6 injured by either a breach of contract or a tort the duty to exercise reasonable diligence 7 and ordinary care in attempting to minimize its damages.” Fleet Nat. Bank v. Anchor 8 Media Television, Inc., 45 F.3d 546, 561 (1st Cir.1995). “Whether a party was 9 reasonable in attempting to mitigate its damages is a highly fact-specific and contextual 10 inquiry.” Performance Indicator, LLC v. Once Innovations, Inc., 56 F. Supp. 3d 99, 102 11 (D. Mass. 2014). 12 As background, Plaintiff claims that the Defendants’ use of excessive force caused 13 ongoing, posttraumatic headaches, a claim that is supported by Dr. Huang’s diagnosis. 14 Mendez Decl. (Dkt. # 34), Ex. 5 (“Dr. Huang Dep.”) at 11:4-15; 22:16-24 (Dr. Huang 15 testified that Plaintiff’s headaches were “most likely” caused by the assault and were 16 “posttraumatic . . . headaches.”). Defendants contend that there is evidence in the record 17 demonstrating that Plaintiff was prescribed glasses after the incident but has not been 18 wearing them. Dkt. # 47 at 2. The Defendants have submitted no evidence that wearing 19 glasses can mitigate posttraumatic headaches, relying entirely on the testimony of 20 Plaintiff and his treatment provider. See Dkt. Dkt. #47 at 2 (quoting Alvarez Dep. at 21 106:18, 104:20-21) (Plaintiff testified that he “wouldn’t be surprised” if he were told by a 22 doctor that he needs glasses, and responded to a question about whether he is supposed to ORDER - 5 1 wear glasses: “I should, but I haven’t”); Id. (citing Huang Dep. at 49:12-25, 50) (Dr. 2 Huang testified “that it would be relevant to her medical opinion and diagnosis of the 3 [P]laintiff to know whether or not he was supposed to wear glasses,” acknowledging that 4 “a failure to wear glasses could lead to headaches”). 5 At most, these statements demonstrate that Plaintiff may need glasses, and if so, 6 failure to wear the glasses could lead to headaches. But Plaintiff has a diagnosis of 7 posttraumatic headaches, without evidence demonstrating a causal link between needing 8 glasses and posttraumatic headaches—or for that matter, evidence that Plaintiff has 9 actually been diagnosed with eyesight problems—Defendants impermissibly ask the jury 10 “to reach a result based on speculation and conjecture.” Cox v. Keg Restaurants U.S., 11 Inc., 935 P.2d 1377, 1380 (Wash. App. Ct. 1997) (“The issue should also not be 12 submitted if the evidence shows that a proposed treatment might not be successful or if 13 there is conflicting testimony as to the probability of a cure, because it is not 14 unreasonable for a plaintiff to refuse treatment that offers only a possibility of relief.”). 15 Accordingly, Plaintiff’s motion is GRANTED. 16 17 V. A. DEFENDANTS’ MOTIONS IN LIMINE Evidence that Plaintiff was Acquitted of Criminal Charges Stemming from this Incident 18 Defendants seek to exclude evidence that Plaintiff was acquitted of the charges 19 filed against him as a result of this incident. Dkt. # 41 at 2. Plaintiff concedes that a 20 prior acquittal is generally not admissible to prove facts upon which the acquittal may 21 have been based, but argues that in this case, the acquittal is relevant to a calculation of 22 ORDER - 6 1 his compensatory damages for “the emotional and psychological upheaval experienced” 2 during the criminal trial. Dkt. # 48 at 2, 4. 3 Both parties cite the Ninth Circuit case, Borunda v. Richmond, 885 F.2d 1384, 4 1387-89 (9th Cir. 1988)—Defendants for the proposition that the Court should exercise 5 caution in allowing evidence of a prior acquittal, and Plaintiff to demonstrate that 6 evidence of acquittal is admissible when offered to demonstrate that “[P]laintiff incurred 7 damages in the form of having to go through a prior criminal action.” Dkt. # 41 at 3; Dkt. 8 # 48 at 3. 9 In Borunda, a Section 1983 case where the plaintiffs alleged that there had been 10 no probable cause for their arrest, the court held that evidence of the plaintiffs’ acquittals 11 was appropriately admitted “solely for the purpose of showing that the plaintiffs incurred 12 damages in the form of attorneys’ fees in successfully defending against the state 13 criminal charges.” 885 F.2d at 1388. In affirming the district court’s admission of the 14 acquittals, however, the court cautioned that evidence of the acquittals had the potential 15 to be highly prejudicial and such prejudice should be carefully mitigated by a limiting 16 instruction. Id. at 1388-89; see also Monroe v. Griffin, 14-CV-00795-WHO, 2015 WL 17 5258115, at *4 (N.D. Cal. Sept. 9, 2015) (“If accompanied by an appropriate limiting 18 instruction, evidence of an acquittal may be introduced in a section 1983 action for the 19 purpose of establishing the plaintiff's damages claim.”); Torres v. City of Santa Clara, 20 No. 13–cv–01475–PSG, 2014 WL 4145509, at *5 (N.D. Cal. Aug. 20, 2014) (evidence of 21 acquittals “may not be admitted to prove up facts upon which the acquittals were based, 22 ORDER - 7 1 but might be admissible to prove another issue in dispute) (internal quotation marks 2 omitted). 3 Plaintiff has identified a permissible purpose for the evidence that he was 4 acquitted. Accordingly, this motion is DENIED in part and GRANTED in part. 5 Subject to a specifically tailored limiting instruction, evidence of Plaintiff’s acquittal may 6 be introduced at trial for the purpose of demonstrating compensatory damages. The 7 Court directs Defendants to submit a proposed limiting instruction no later than Friday, 8 July 28, 2017. The Court will give the limiting instruction during trial when appropriate 9 and as requested by counsel. 10 B. Evidence of the Destruction of King County Sheriff’s Department Radio Recordings 11 Defendants seek to exclude any evidence that King County destroyed recorded 12 Master 911 tapes, which may have documented the interactions between police officers 13 during the incident in the alley. Dkt. # 41 at 4-5. While Defendants concede that 14 Plaintiff’s criminal defense counsel requested that the King County Prosecuting Attorney 15 preserve these recordings, Defendants claim that the Prosecutor failed to relay this 16 request to the King County Sheriff’s Office and argue that the Prosecutor’s negligence 17 should not be attributed to the Defendants. Id. at 4. Plaintiff contends that Defendants 18 were on notice of the need to preserve the recordings, and, failing to do so constitutes 19 spoliation. Dkt. # 48 at 4-8. Plaintiff therefore requests an adverse jury instruction 20 regarding Defendants’ failure to preserve these recordings. Id. at 8. 21 “A litigant is under a duty to preserve evidence in its possession or control that 22 ORDER - 8 1 the party knows or should have known is relevant to litigation or which might lead to the 2 discovery of admissible evidence.” Perez v. United States Postal Serv., No. C12-00315 3 RSM, 2014 WL 10726125, at *3 (W.D. Wash. July 30, 2014). “The duty to preserve 4 precedes the filing of a complaint, attaching as soon as a party ‘should reasonably know 5 that evidence may be relevant to anticipated litigation.” Id. (quoting Surowiec v. Capital 6 Title Agency, Inc., 790 F. Supp. 2d 997, 1005 (D. Ariz.2011)). A party engages in 7 spoliation “as a matter of law only if they had some notice that the documents were 8 ‘potentially relevant’ to the litigation before they were destroyed.” Akiona v. United 9 States, 938 F.2d 158, 161 (9th Cir.1991). The party requesting sanctions for spoliation 10 has the burden of proof on such a claim. Hammann v. 800 Ideas, Inc., 2:08-CV-00886- 11 LDG, 2010 WL 4943991, at *7 (D. Nev. Nov. 22, 2010). The applicable standard of 12 proof in the Ninth Circuit appears to be by a preponderance of the evidence. Id. 13 In the criminal matter, Plaintiff requested: 14 A copy of any “911 tapes” or other tape recordings containing information relative to this case and all radio broadcasts and transmissions occurring between the officer(s) who detained, arrested and/or transported the defendant on the date of the alleged incident herein, and any other agency, officer, communications center or station during the course of the detention, arrest, transportation, testing and booking or charging of the defendant[.] 15 16 17 Dkt. # 48, Ex. 2 ¶ 13. Plaintiff claims the request encompasses three types of 18 information: the initial 911 call recording, the computer-aided dispatch (“CAD”) 19 recordings, and the recordings made by devices worn by the Defendants during the 20 incident. Dkt. # 48 at 4-5. The Plaintiff and Defendants refer to this last category 21 differently—Plaintiff describes the missing recordings as Master 911 tapes, while 22 ORDER - 9 1 Defendants describe these as “recordings of radio transmissions between the officers”— 2 but the parties agree that these recordings were not produced and have been destroyed. 3 Dkt. # 41 at 4; Dkt. # 48 at 5. Only the initial 911 call and the CAD recordings have been 4 produced. Dkt. # 48 at 5. 5 The Court finds that the language of Plaintiff’s request—“tape recordings 6 containing information relative to this case and all radio broadcasts and transmissions 7 occurring between the officer(s)”—encompasses the destroyed radio recordings between 8 the officers. Dkt. # 48, Ex. 2 ¶ 13. And Plaintiff’s request—submitted July 16, 2014— 9 was made within 90 days, before the recordings were subject to routine destruction. Id., 10 Ex. 2-3. However, while the King County Prosecuting Attorney failed to take the 11 necessary steps to preserve the recordings, there is no evidence that the remaining 12 Defendants in this action—all individual officers of the King County Sheriff’s 13 Department—were aware of Plaintiff’s request or the Prosecutor’s failure to carry out 14 that request. Dkt. # 41 at 5; see Hammann, 2010 WL 4943991, at *7 (stating that the 15 party requesting sanctions for spoliation has the burden of proof on such a claim). 16 Defendants argue that it would be unjust to sanction the Defendants for the 17 negligence (or worse) of the King County Prosecutor and King County itself. Id. The 18 Court agrees. Any analysis of appropriate sanctions would require the Court to determine 19 the Defendants’ degree of fault in destroying the evidence. See e.g., Compass Bank v. 20 Morris Cerullo World Evangelism, 104 F. Supp. 3d 1040, 1052 (S.D. Cal. 2015) 21 (“Ultimately, the choice of appropriate spoliation sanctions must be determined on a 22 case-by-case basis, and should be commensurate to the spoliating party’s motive or ORDER - 10 1 degree of fault in destroying the evidence.”). In this case, there is no evidence that the 2 Defendants were at fault, or that they were aware of the request to preserve evidence. 3 The Plaintiff has cited no authority for the proposition that the Defendants can be 4 sanctioned for the negligence of the County. The Court therefore GRANTS this motion. 5 C. Evidence That Alternative Means or Tactics Should Have Been Used 6 Defendants seek to exclude any attempt by the Plaintiff to second-guess the 7 Defendants’ decision-making prior to the physical altercation with Plaintiff.2 Dkt. # 41 at 8 6. The Court finds the Defendants’ motion unworkable; prohibiting the Plaintiff from 9 second-guessing the Defendants’ actions would prohibit Plaintiff from making arguments 10 11 about the totality of the circumstances that are crucial to his excessive force claims. “Because ‘[t]he test of reasonableness under the Fourth Amendment is not capable 12 of precise definition or mechanical application’. . . its proper application requires careful 13 attention to the facts and circumstances of each particular case, including the severity of 14 the crime at issue, whether the suspect poses an immediate threat to the safety of the 15 officers or others, and whether he is actively resisting arrest or attempting to evade arrest 16 by flight.” Graham v. Connor, 490 U.S. 386, 396 (1989) (quoting Bell v. Wolfish, 441 17 U.S. 520, 559 (1979)) (internal citations omitted). The analysis then is “whether the 18 officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances 19 confronting them, without regard to their underlying intent or motivation.” Id. at 397. 20 2 21 22 The Defendants provide examples of the type of alternative actions the Plaintiff may suggest: “ordering the [P]laintiff out of his car via the patrol vehicle’s loudspeaker, asking him for identification before ordering him out of the vehicle, or waiting for backup prior to approaching the [P]laintiff.” Dkt. # 41 at 6. ORDER - 11 1 This analysis cannot be performed “in the absence of any argument or evidence that 2 would second guess the actions of any officer leading up to the point that the encounter 3 with Mr. Ponce Alvarez became physical,” as Defendants suggest. Id. at 6 n. 1 (emphasis 4 in original); Billington v. Smith, et. al., 292 F.3d 1177, 1182-83 (9th Cir. 2002) (“Our 5 precedents do not forbid any consideration of events leading up to [an alleged 6 constitutional violation].”); Bonner v. Normandy Park, C07-962RSM, 2008 WL 7 4766822, at *4 (W.D. Wash. Oct. 29, 2008) (same). 8 9 Accordingly, Defendants’ motion is DENIED. D. Evidence Regarding Policies of the King County Sheriff’s Office 10 Defendants seek to exclude Plaintiff’s proposed Exhibit Four, a 450 page 11 collection of policies regarding the operation of the King County Sheriff’s Office. Dkt. 12 # 41 at 8. In support of their argument, Defendants cite Whren v. United States for the 13 proposition that whether an officer complies with department policies or practices is 14 immaterial to the question of an individual officer’s liability under the Fourth 15 Amendment. Dkt. # 41 at 8 (citing 517 U.S. 806, 815 (1996)). But Defendants overstate 16 the holding in Whren, where the Supreme Court found that “police enforcement 17 practices . . . vary from place to place and from time to time” and should therefore never 18 be the touchstone of a Fourth Amendment inquiry. 517 U.S. at 815. Thus, a police 19 officer’s failure to follow departmental policy should never prove a Fourth Amendment 20 claim. Id. at 216. Nevertheless, Whren never explicitly found that such practices should 21 be completely excluded from the evidence. In fact, the Supreme Court explained that its 22 ORDER - 12 1 findings did not “purport[ ] to find an answer, but merely one that leaves the question 2 open.” Id. at 816. 3 As applied to this case, any allegation that the Defendants violated the policies of 4 the King County Sheriff’s Office certainly does not prove that Plaintiff’s constitutional 5 rights were violated. It is, however, a factor the jury may consider in evaluating an 6 individual’s excessive force claim. See Bonner v. Normandy Park, No. C07-962RSM, 7 2008 WL 4766822, at *2 (W.D. Wash. Oct. 29, 2008) (finding that an officer’s violation 8 of departmental policy is a valid consideration when assessing whether an officer used 9 excessive force in violation of an individual’s Fourth Amendment rights). 10 Nevertheless, the Court does not have the necessary information before it to 11 contemplate the relevance of each of the 450 pages of Plaintiff’s proposed Exhibit. 12 Should any of these pages be irrelevant to the issues in this case, they are inadmissible. 13 Fed. R. Evid. 401. Plaintiff is therefore directed to extract the relevant sections of 14 Exhibit Four and submit only those to the jury. 15 Therefore Defendants’ motion in limine with respect to this issue is DENIED in 16 part and GRANTED in part. 17 E. 18 Evidence Regarding Administrative Use of Force or Internal Investigation Defendants seek to exclude any evidence—including Defendants’ statements— 19 from an internal investigation conducted by the King County Sheriff’s Office into 20 Plaintiff’s arrest. Dkt. # 41 at 10-11. Defendants argue that any evidence of this 21 investigation is irrelevant and unfairly prejudicial, and should therefore be excluded 22 pursuant to Federal Rules of Evidence 401 and 403. Id. at 10. Defendants further argue ORDER - 13 1 that evidence of the investigation should also be considered a “subsequent remedial 2 measure” and therefore inadmissible under Federal Rule of Evidence 407. Id. at 11. 3 In turn, Plaintiff clarifies that he intends to use statements from the internal 4 investigation only in the instance that any Defendant makes a prior inconsistent 5 statement. Dkt. # 48 at 10. According to Plaintiff, such a statement would be admissible 6 under Federal Rule of Evidence 801(d)(1)(A). Dkt. # 48 at 10. Plaintiff “recognizes that 7 when offering such a prior statement it should be done without discussing the specifics of 8 the proceeding that lead to the prior statement. Consequently, [P]laintiff does not seek to 9 introduce evidence of the prior investigation in and of itself.” Id. 10 The Court finds that Plaintiff may properly introduce Defendants’ statements 11 made in the course of the King County Sheriff’s Office internal investigation for the 12 purpose of impeaching the witness in accordance with Federal Rule of Evidence 801(d). 13 See Gonzalez v. Olson, 11 C 8356, 2015 WL 3671641, at *17 (N.D. Ill. June 12, 2015) 14 (“Prior statements made as part of the [] investigation may be used for impeachment or as 15 a party admission when appropriate.”); Tatum v. Clarke, 11-C-1131, 2015 WL 6392609, 16 at *15 (E.D. Wis. Oct. 22, 2015) (“An investigation does not mean that there was 17 improper conduct by an officer or agent of the investigating agency; it merely means that 18 the agency felt it appropriate to review the matter. However, that does not mean that 19 Tatum should not be allowed to offer any evidence of an internal investigation.”); United 20 States v. Rubin/Chambers, Dunhill Ins. Servs., 828 F. Supp.2d 698, 710 (S.D.N.Y. 2011) 21 (“Defendants may cross-examine cooperating witness regarding statements they made 22 ORDER - 14 1 during investigatory interviews and may use the notes or reports to refresh witnesses’ 2 recollections.”). 3 However, Defendants argument that evidence of the investigation should also be 4 considered a “subsequent remedial measure” and therefore inadmissible under Federal 5 Rule of Evidence 407 is well taken. Id. at 11; See also Maddox v. Los Angeles, 792 F.2d 6 1408, 1417 (9th Cir.1986) (excluding evidence of a police department investigation as a 7 subsequent remedial measure in a civil rights suit brought pursuant to 42 U.S.C. § 1983); 8 Specht v. Jensen, 863 F.2d 700, 701 (10th Cir.1998) (excluding, under Rule 407, a 9 statement of remedial steps to be taken in an illegal search suit brought pursuant to 42 10 U.S.C. § 1983); Gilanian v. City of Boston, 431 F.Supp.2d 172, 177 (D. Mass. 2006); 11 McLaughlin v. Diamond State Port Corp., 2004 U.S. Dist. LEXIS 26351, at *11, 2004 12 WL 3059543 (D.Del. Dec. 30, 2004) (“Just as subsequent remedial measures are 13 generally inadmissible under Fed. R. Evid. 407, a defendant's attempt to reverse allegedly 14 discriminatory practices should also be inadmissible. It would be perverse indeed if 15 attempts to reverse discrimination could be used to condemn a defendant. Such use of 16 evidence would only serve to discourage reform, and the court will not permit it.”). 17 The Court therefore will not permit Plaintiff to introduce the fact of the 18 investigation in and of itself, but Plaintiff may introduce statements made in the course of 19 the King County Sheriff’s Office’s internal investigation solely for impeachment 20 purposes, and only after demonstrating to the Court, in camera or in sidebar, that the 21 statement would in fact impeach the witness in accordance with the requirements of 22 Federal Rule of Evidence 801(d). ORDER - 15 1 2 Accordingly, Defendants’ motion is DENIED in part and GRANTED in part. F. Testimony of Plaintiff’s Designated Police Practices Expert, Gregory Gilbertson 3 Defendant seeks to exclude the testimony of Plaintiff’s police practice expert, 4 Gregory Gilbertson, on the grounds that Mr. Gilbertson (1) offers no permissible 5 testimony or analysis regarding the Defendants’ use of force in this incident relative to 6 commonly accepted police practices; (2) offers only impermissible opinions on 7 Defendants’ credibility; (3) offers irrelevant opinions regarding Defendants’ behavior in 8 light of the King County Sheriff’s Department’s policies, and; (4) proffers unreliable 9 opinions. Dkt. # 41 at 12-16. 10 The Court finds Defendants’ concerns unwarranted. “Courts have generally 11 admitted expert testimony on police practices and the use of force in cases involving 12 allegations of excessive force and police misconduct.” Morales v. Fry, No. C12-223513 JCC, 2014 WL 12042563, at *3 (W.D. Wash. Mar. 25, 2014). However, in determining 14 whether such testimony is admissible, the Court “must ensure that any and all [expert 15 testimony] is not only relevant, but reliable.” Id. (citing Daubert v. Merrell Dow 16 Pharms., 509 U.S. 579, 597 (1993); Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 17 147 (1999) (extending Daubert’s requirements of relevance and reliability to non18 scientific testimony)). “In addition to broad latitude in determining whether an expert’s 19 testimony is reliable, the Court also has discretion in deciding how to determine the 20 testimony’s reliability.” Id. “In the context of non-scientific testimony, the Daubert 21 factors are not applicable; the reliability depends primarily on the knowledge and 22 ORDER - 16 1 experience of the expert ‘rather than the methodology or theory behind it.’” Id. (quoting 2 Hangarter v. Provident Life & Accident Ins. Co., 373 F.3d 998, 1017 (9th Cir. 2004)). In 3 this case, Defendants challenge both the reliability of Mr. Gilbertson’s testimony and its 4 relevance. 5 First, the Court finds that Mr. Gilbertson’s testimony appears relevant to the 6 Plaintiff’s claims. To the extent Defendants argue that Mr. Gilbertson offers no 7 permissible testimony or analysis regarding the Defendants’ use of force in this incident, 8 but only inappropriate commentary on legal issues or ultimate issues of fact, the Court 9 disagrees. Dkt. # 41 at 14. While neither party has submitted Mr. Gilbertson’s report for 10 the Court’s review, Plaintiff contends that Mr. Gilbertson’s testimony “will be limited to 11 a comparison [of] the alleged misconduct by defendant police officers and generally 12 accepted police practices.” Dkt. # 48 at 13. Such testimony is permissible. See e.g., 13 Paine ex rel. Eilman v. Johnson, 06-CV-3173, 2010 WL 785394, at *2 (N.D. Ill. Feb. 26, 14 2010) (“[W]here qualified to do so and where their testimony is otherwise relevant, 15 experts may testify as to nationally accepted standards of police conduct . . . .”). 16 Further, Mr. Gilbertson appears aware of the appropriate limits of an expert 17 opinion, as demonstrated by the example submitted by the Defendants. Compare Dkt. 18 # 41 at 14 (citing Mr. Gilbertson’s expert report) (“The question of whether the force 19 employed by MPO Adam Buchan, Deputy Cassandra Bertaina, Deputy James Price, and 20 Deputy Jonathan Hennessy against Moises Ernesto Ponce Alvarez on May 21st, 2014, in 21 White Center, Washington, was objectively reasonable, necessary, and proportionate as 22 defined in the case of Graham v. O’Connor and by the [Fourth] Amendment to the ORDER - 17 1 United States Constitution is for a jury to consider and deliberate.”), with, Morales, 2014 2 WL 12042563, at *3 (experts “may not offer any opinion that goes beyond explaining the 3 industry standards relevant to the case and whether the officers’ conduct in this case 4 comports with those standards. He should not indicate, in any way, whether any conduct 5 was ‘reasonable under the circumstances,’ ‘objectively reasonable,’ or ‘justified’ under 6 the circumstances.”) (citing Hygh v. Jacobs, 961 F.2d 359, 364 (2d Cir. 1992)). 7 Second, while the Court shares the Defendants’ concerns that Mr. Gilbertson, or 8 any expert, would offer “only impermissible opinions on Defendants’ credibility,” Mr. 9 Gilbertson may testify regarding the alleged misconduct by defendant police officers, and 10 the facts that support that conclusion, including any apparent inconsistencies in 11 Defendants’ statements or police reports based on comparisons to other relevant facts in 12 the case. Dkt. # 41 at 14. However, the Court cautions that Mr. Gilbertson will not be 13 permitted to testify to the credibility of other witnesses, as credibility determinations are 14 the province of the jury. Creach v. Spokane Cty., CV-11-432-RMP, 2013 WL 12177099, 15 at *2 (E.D. Wash. May 2, 2013) (citing United States v. Binder, 769 F.2d 595, 602 (9th 16 Cir. 1985)). 17 Third, while evidence that Defendants violated a King County Sheriff’s 18 Department policy is not evidence of a constitutional violation, it may be relevant to the 19 jury’s understanding of the totality of the circumstances surrounding Plaintiff’s arrest and 20 thus Mr. Gilbertson’s testimony on the matter would be relevant. See supra, Section 21 V.D. 22 ORDER - 18 1 Finally, Defendants argue that Mr. Gilbertson’s testimony regarding the 2 Defendants’ potential violation of King County Sheriff’s Department policies is 3 unreliable because he has no familiarity with the specific practices or procedures of the 4 King County Sheriff’s Department. Dkt. # 41 at 15. But specific knowledge of the 5 inner-workings of the King County Sheriff’s Department is not necessary for Mr. 6 Gilbertson to reliably testify to a comparison of the alleged misconduct by defendant 7 police officers and generally accepted police practices. Dkt. # 48 at 13. “Reliability 8 requires that the expert’s testimony have ‘a reliable basis in the knowledge and 9 experience of the relevant discipline.’” Eagle W. Ins. Co. v. SAT, 2400, LLC, No. C15- 10 1098RSL, 2016 WL 7017656, at *1 (W.D. Wash. Oct. 24, 2016) (quoting Kumho Tire 11 Co., Ltd. v. Carmichael, 526 U.S. 137, 149 (1999)). 12 Plaintiff has submitted a list of Mr. Gilbertson’s qualifications, which demonstrate 13 extensive experience in policing. See Dkt. # 48 at 13. Mr. Gilbertson’s experience 14 includes work as a police officer in Georgia and Washington, including assignments as a 15 “SWAT team officer, superior court investigator, school resource officer, squad officer, 16 senior patrolman, and patrolman.” Id. After his law enforcement career, Mr. Gilbertson 17 went on to become a college professor—where he taught courses on criminal justice— 18 and a private investigator, “conducting pretrial investigations for attorneys throughout 19 Washington State in hundreds of criminal cases.” Id. The Court finds that, based on his 20 experience, Mr. Gilbertson’s testimony can be expected to have “a reliable basis in the 21 knowledge and experience of [police practices].” Kumho, 526 U.S. at 149. The Court 22 ORDER - 19 1 further finds that Defendants’ concerns can be fully addressed through 2 cross-examination. Therefore, the Court DENIES Defendants’ motion. 3 4 VI. CONCLUSION For the foregoing reasons, the Court GRANTS Plaintiff’s Motion in Limine, Dkt. 5 # 42, and GRANTS in part and DENIES in part Defendants’ Motions in Limine, 6 Dkt. # 41. In doing so, the Court reminds the parties that an attorney or witness who 7 violates any of the above evidentiary rulings runs the risk of opening the door to the 8 admission of evidence that would otherwise be precluded by this Order. In reference to 9 Defendants’ Motion in Limine No. Seven, supra Section V.A, the Court directs 10 11 Defendants to submit proposed limiting instruction no later than Friday, July 28, 2017. DATED this 27th day of July, 2017. 12 13 A 14 15 The Honorable Richard A. Jones United States District Judge 16 17 18 19 20 21 22 ORDER - 20

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