Appeal from the United States District Court for the Eastern District of California, Morrison C. England, District Judge, Presiding, D.C. No. CV-05-01193-MCE.
The opinion of the court was delivered by: Thomas, Circuit Judge
Argued and Submitted March 13, 2009 -- San Francisco, California.
Before: J. Clifford Wallace, Sidney R. Thomas and Jay S. Bybee, Circuit Judges.
This appeal presents the question of whether the "sham affidavit" rule precludes the introduction of testimony from other witnesses that is arguably inconsistent with a plaintiff's deposition testimony. Under the circumstances presented by this case, we conclude the doctrine does not extend that far, and we vacate the judgment of the district court and remand for reconsideration.
On the evening of April 16, 2004, 21-year-old University of California, Davis student Timothy Nelson attended a large party at the Sterling Apartment Complex in Davis, California. Police estimated that up to 1000 people were at the party. The party escalated out of control and approximately 30-40 city and school police officers were dispatched to the scene.
The officers formed a skirmish line and attempted to sweep the crowd toward the front of the apartment complex. The officers gave numerous dispersal orders while they moved through the crowd, and multiple officers stated that they were under a constant barrage of thrown bottles while moving through the property, and that many members of the crowd were chanting, yelling, and cursing at them.
Some officers shot pepperballs*fn1 at bottle-throwing students and also at groups of people that did not move when told to disperse. The purpose of shooting the pepperballs was twofold: (1) to specifically target those partygoers who were throwing bottles at the police; and (2) to create "area denial" or "area saturation" so that the OC would make it uncomfortable for any person to stay in the area.
Nelson and his group of friends eventually left the hallway in which they were standing and entered an outside breeze-way. The officers allegedly warned people in the breezeway that they needed to disperse, and Sgt. John Wilson of the Davis Police Department ordered the pepperball unit to fire when he felt that the students were not dispersing properly. After receiving the order, "[a]ll of the officers lined up. The four officers lined up in a row and pointed their Pepperball units down range[, and t]hey shot into the area of the crowd." Two officers testified that no one in the breezeway was throwing bottles.
During his deposition Nelson testified regarding the period when the police started shooting:
A: What I can recall? We were coming out the doors and I heard ...