Daily v. City of Phoenix

          ORDER

          Honorable Steven P. Logan United States District Judge

         Before the Court are thirteen motions in limine and two Daubert^[1] motions filed by both Plaintiff and Defendant. Each motion was fully briefed on or before October 11, 2019. On October 25, 2019, the Court held a final pretrial conference and heard oral argument on all the pending motions. The Court's rulings are as follows.

         I. Background

         This action arises from the fatal shooting of Zachariah Pithan (“Decedent”) by Phoenix Police Officer Clinton Brookins (“Defendant”). On April 20, 2013, Decedent's neighbors called the police after observing him acting irrationally. (Doc. 341 at 2-4) Many of the factual details of the encounter are disputed, but the undisputed facts remain that four officers entered Decedent's apartment, and ultimately, Defendant shot Decedent twice in the chest-killing him before medical help could arrive. (Doc. 341 at 2-4)

         Decedent's mother (“Plaintiff”) and father, as representatives of his estate, brought several claims under 42 U.S.C. § 1983 and state law against the officers and the City of Phoenix. (Doc. 81) On August 8, 2017, this Court granted the defendants' motion for summary judgment on all the claims. (Doc. 289) Plaintiff appealed. (Doc. 299) The Ninth Circuit affirmed the Order in part but reversed and remanded the Order in part after determining that the Fourth Amendment excessive force claim remained at issue. (Doc. 314-2 at 2) Plaintiff and Defendant are the only remaining parties in this case.

         II. Discussion

         A. Plaintiff's Motion in Limine to Exclude Evidence of Decedent's Drug History and Criminal History

         Plaintiff moves to exclude any reference to Decedent's alleged history of drug use, drug possession, and criminal history. (Doc. 321 at 1) Plaintiff asserts that the evidence is not relevant, lacks foundation, and constitutes unfair prejudice under Federal Rules of Evidence (“FRE”) 402, 403, 701 and 702. (Doc. 321 at 1-2) Plaintiff argues that Defendant did not know or have reason to know that there were any illegal drugs or drug paraphernalia in Decedent's apartment. (Doc. 321 at 1-2) In addition, Plaintiff argues that the evidence is irrelevant for consideration of damages because an expert toxicologist confirmed to a medical degree of certainty that Decedent was not under the influence of drugs during the altercation-despite Decedent's toxicology report showing trace amounts of cocaine in his system. (Doc. 321 at 2-3)

         In response, Defendant concedes that the evidence is irrelevant for establishing liability under the excessive force claim. (Doc. 353 at 1-2) However, Defendant asserts that the evidence is relevant for establishing the scope of damages. (Doc. 353 at 2)

         The Court finds that any prejudice resulting from the introduction of Decedent's drug use on the date of his death does not substantially outweigh its probative value for Defendant's arguments regarding the nature and extent of Plaintiff's damages. Plaintiff asserts a claim for damages due to Decedent's “pre-death pain and suffering.” (Doc. 81 at 10) Evidence of drug use is directly relevant to the extent of Decedent's pain and suffering. Upon proper foundation, Plaintiff may question their toxicology expert and introduce the expert report regarding Decedent's drug exposure at the time of his death to rebut any claims made by Defendant, but the report itself does not provide a basis to exclude the evidence. With regard to the criminal history, Defendant fails to show that Decedent's criminal history is relevant and admissible at trial. Accordingly, the motion will be granted in part and denied in part.

         B. Plaintiff's Motion in Limine to Exclude Witness Statements that Were Not Communicated to Defendant

         Plaintiff moves to preclude Defendant from using statements in support of his defense because Defendant had no knowledge of the information contained in the statements at the time he shot Decedent. (Doc. 322 at 1) Plaintiff asserts that Defendant is attempting to introduce statements by Decedent's neighbors that were made before the incident, 9-1-1 dispatch calls, and information known by the other officers at the time of the incident. (Doc. 322 at 2-3) Yet Plaintiff argues this information is inadmissible because it was never communicated to Defendant before he shot Decedent. Plaintiff asserts that under the excessive force test outlined in Graham v. Connor, 490 U.S. 386 (1989), Defendant is limited to introducing information and knowledge that he gained leading up to the time he shot Decedent. (Doc. 322 at 3)

         In response, Defendant argues that the 9-1-1 calls are relevant and admissible because they confirm how the Decedent was behaving prior to the shooting and they tend to corroborate Defendant's version of the altercation. (Doc. 354 at 1-2) Citing Boyd v. City and County of San Francisco, 576 F.3d 938, 944 (9th Cir. 2009), Defendant argues that evidence supporting his version of the disputed events is relevant and admissible at trial. (Doc. 354 at 2)

         At the final pretrial conference, Plaintiff argued that the Ninth Circuit implicitly overruled Boyd, and therefore the Court cannot allow Defendant to admit any evidence that he did not know at the time of the shooting. In response, Defendant argued that no Ninth Circuit case has directly overturned Boyd, and therefore, the case is still good law.

         In Boyd, the Ninth Circuit stated that FRE 401 allows the admittance of evidence that has a tendency to make a fact of consequence more or less probable, and the court explained that the rule includes “evidence that may support one version of events over another” when an officer's perception just prior to the use of force is at issue. Boyd, 576 at 944. Since Boyd, courts have disputed the scope of its ruling. See Jackson v. Cty. Of San Bernardino, No. EDCV 13-01650-JGB (DTBx), 2016 WL 7495816, at *3 (C.D. Cal. April 21, 2016) (recognizing that “Ninth Circuit case law appears to be inconsistent on whether information not known to an officer is admissible to support an officer's version of events” before denying the admittance of corroborative evidence); Korff v. City of Phoenix, No. CV-13-02317-PHX-ESW, 2015 WL 1402996, at *2-3 (D. Ariz. March 25, 2015) (finding that “Boyd remains the law in the Ninth Circuit” and allowing the discovery of evidence that tended to corroborate the officers' version of events); Ruvalcaba v. City of Los Angeles, 2014 WL 4426303, at *1-2 (C.D. Cal. Sept. 8, 2014) (finding that “the Ninth Circuit has clarified its position on unknown, preshooting knowledge, holding that it is inadmissible to establish the reasonableness of an officer's conduct”); Turner v. Cty. of Kern, 2014 WL 560834, at *2-3 (E.D. Cal. Feb.13, 2014) (relying on Boyd to admit evidence that the decedent was on drugs at the time of the shooting to corroborate the officers' account of events). But the Ninth Circuit has never directly addressed these differences in interpretation. Consequently, the Court finds that Boyd remains precedential law in the Ninth Circuit.

         Here, Defendant asserts that at least one 9-1-1 call shows that Decedent was carrying a wooden object and threatening to hit the caller with it. (Doc. 354 at 2) Because Defendant asserts that he shot Decedent after seeing a wooden object in his hand that he believed Decedent was attempting to use as a weapon, the 9-1-1 call tends to corroborate Defendant's version of events. Defendant may introduce the one 9-1-1 call. However, Defendant has not made a sufficient showing that any of the other evidence is relevant and admissible in support of his defense. Accordingly, the motion will be granted in part and denied in part.

         C. Defendant's Motion in Limine to Exclude Defendant's Prior Employment and Psychological Testing

         Defendant moves to exclude the introduction of his employment history, arguing that the evidence is irrelevant and prejudicial under FRE 401 and 403. (Doc. 329 at 1) In addition, Defendant moves to exclude the introduction of his prior psychological testing, arguing that the evidence is inadmissible character evidence under FRE 404. (Doc. 329 at 2)

         In response, Plaintiff argues that under FRE 611(b), Defendant is subject to cross-examination on matters affecting his credibility and qualifications. (Doc. 343 at 1) Plaintiff asserts that Defendant's employment history is relevant for purposes of impeachment because Defendant “claims that he [is] a highly trained officer with sufficient competency to handle situations properly without the unnecessary need for deadly force.” (Doc. 343 at 2) Additionally, Plaintiff argues that the evidence is admissible under FRE 404 to prove motive, opportunity, intent, preparation, plan, knowledge, and absence of mistake/accident. (Doc. 343 at 2) Additionally, Plaintiff argues that Defendant's past psychological testing is relevant to: 1) impeach Defendant on his qualifications and credentials as an officer, and 2) establish punitive damages by showing Defendant's “relative incompetence and instability resulted in the severe and excessive use of deadly force.” (Doc. 343 at 3)

         Here, Defendant's employment history indicates that his past employers described him as an unreliable and untruthful employee. (Doc. 343-1) The Court finds that the risk of prejudice is not greatly outweighed by the evidence's relevance as impeachment evidence in this case. If Defendant testifies that he has the competency of a reasonable police officer, then the employment history may be used to impeach him under FRE 611(b).

         Regarding the psychological testing, the Court finds that the testing is not relevant impeachment evidence, but the psychological testing is relevant for punitive damages. See Smith v. Wade, 461 U.S. 30, 56 (1983) (“[A] jury may be permitted to assess punitive damages in an action under § 1983 when the defendant's conduct . . . involves reckless or callous indifference to the federally protected rights of others.”). Accordingly, the motion will be granted in part and denied in part.

         D. A Defendant's Motion in Limine to Exclude Defendant's Army Service Records

         Defendant moves to exclude the admission of his military service records at trial. (Doc. 330 at 1) Defendant argues that the proposed records are irrelevant under FRE 401 and the introduction of the evidence would be prejudicial under FRE 403. (Doc. 330 at 2) Additionally, Defendant argues that the evidence is inadmissible under FRE 404 as improper character evidence that will be used to demonstrate an aggressive personality or mental state. (Doc. 330 at 2)

         In response, Plaintiff argues that Defendant's service in the military is relevant employment history and has bearing on his qualifications to become a police officer- including the handling of a firearm. (Doc. 334 at 1-2) Plaintiff asserts that Defendant was honorably discharged for “unsatisfactory performance” and his discharge is therefore inconsistent with the conclusion that Defendant had the necessary background of a competent officer. (Doc. 344 at 2)

         At the final pretrial conference, Plaintiff asserted that Defendant's honorable discharge means he is ineligible to reenlist in the military, and that fact is relevant work history to show Defendant's incompetence. Defendant argued that he passed all of the necessary qualifications to become a City of Phoenix police officer, and whether he is qualified to reenlist in the military has no bearing on whether he is qualified to serve as a police officer.

         Here, Defendant's military service is part of his employment history. However, the Court finds that the evidence is irrelevant to impeach Defendant on cross-examination pursuant to FRE 608(b) and 611(b) because the fact has no bearing on his credibility. Accordingly, the motion will be granted.

         E. Defendant's Motion in Limine to Exclude Evidence of The Alleged Incident with Tia Hernandez

         Defendant moves to exclude any reference to a 2012 altercation with Tia Hernandez. (Doc. 331 at 1-2) Hernandez asserts in an affidavit that Defendant refused to let her use the restroom while in custody and she was forced to urinate on the floor. Hernandez further asserts that Defendant used her clothing and body to clean up the urine. (Doc. 331 at 2) Defendant argues that Hernandez's affidavit is hearsay and inadmissible at trial. (Doc. 331 at 2) Defendant further argues ...