United States District Court, D. Arizona
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 ...