IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
August 8, 2008
ROBERT DUNCAN; JANET DUNCAN; AND CHRISTOPHER G., A MINOR THROUGH HIS GAURDIAN ROBERT DUNCAN, PLAINTIFFS,
COUNTY OF SACRAMENTO; AND STEVE LEE, DEFENDANTS.
The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
COMMUNICATION AND TRIAL DOCUMENTS
Attached are voir dire questions, closing jury instructions and a verdict form.
The "color of law" element has been excluded from the jury instruction on the Fourth Amendment claim since it is evident the parties agree Defendant Lee acted under color of law. Where, as here, the record shows that the allegations of unreasonable seizure "plainly fall within the ambit of actions taken under color of law," this element is understood to exist and no instruction on this element is necessary. United States v. Giordano, 442 F.3d 30, 44 (2nd Cir. 2006) (indicating officials act "under color of law when their misuse of official power made the commission of a constitutional wrong possible, even though the official committed abusive acts for personal reasons far removed from the scope of official duties"). If a party disagrees, an objection shall be filed in which the reason for telling the jury about the "color of law" element is explained. Cf. Achor v. Riverside Golf Club, 117 F.3d 339, 341-42 (7th Cir. 1997) (indicating that instructions should help jurors concentrate on the issues at hand).
Further, Defendants' proposed superceding causation instruction has not been included since Defendants "[have] not appropriately pled superseding cause as an affirmative defense [and the affirmative defense is not in the Final Pretrial Order]. Rule 8(c) places the burden of pleading affirmative defenses on the defendant[s]. . . [S]uperceding cause is an affirmative defense within the meaning of Rule 8(c). Since defendant[s] [have] entirely failed to plead superseding cause, defendant[s] [have] waived that defense and the right to admit evidence relevant to such defense." Ritch v. A M General Corp., 1997 WL 834214, at *5 (D.N.H. Nov. 17, 1997). This matter was discussed at the final pretrial conference; there Defendants' counsel indicated this defense did not constitute an affirmative defense and need not be preserved for trial in the Final Pretrial Order. The issue has not been preserved for trial in the Pretrial order and is waived unless some aspect of it is subsumed in a preserved trial issue.
Defendants' reference to a negligence claim has also been excluded since a negligence claim has not been preserved for trial.
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