This case came before the court on February 11, 2011, for hearing on pretrial motions in limine. (Doc. Nos. 102 and 103). Stewart Katz, Esq. and Guy Darilowitz, Esq. appeared for plaintiff. John A. Lavra, Esq. and Amy Lindsey-Doyle appeared for defendants.
For the reasons stated on the record at the hearing defendants' unopposed motion in limine No. 2 to preclude evidence regarding prior citizen complaints against the defendant officers and defendants' motion in limine No. 4 to preclude evidence or argument based upon the County's policy on disposal of infectious waste or violations thereof were granted. Defendants' motion in limine No. 3 to preclude evidence of defendants' statements made during the Sacramento County Sheriff's Department's Internal Affairs Investigation was denied.*fn1 Finally, plaintiff's motion in limine to exclude evidence of plaintiff's 2008 felony conviction was denied in part and granted in part with the court ruling that only the fact of that felony conviction would be admissible for impeachment and that evidence with respect to the collateral details of the conviction would be excluded unless made relevant by any testimony given by plaintiff on direct examination at trial. See Clem v. Lomeli, No. 2:05-cv-02129-JKS, 2007 WL 268842, at *2 (E.D. Cal. Sept. 13, 2007).
Below, the court will address the four remaining motions in limine taken under submission following the hearing.
APPLICABLE RULES OF EVIDENCE
Federal Rule of Evidence 403 provides that relevant evidence may be excluded if any probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, pr misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence. Federal Rule of Evidence 404(b) provides that evidence of prior acts is not admissible to show conduct in conformity with those acts. Thus, "[c]haracter evidence is normally not admissible in a civil rights case." Gates v. Rivera, 993 F.2d 697, 700 (9th Cir.1993). Federal Rule of Evidence Rule 609(a)(1) states that for purposes of attacking the credibility of a witness: (1) evidence that a witness other than the accused has been convicted of a crime shall be admitted subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted.
The burden of demonstrating that the conviction survives the balancing test imposed by Rule 609 is on the party seeking to introduce the conviction. United States v. Hendershot, 614 F.2d 648, 652-53 (9th Cir.1980). Generally, where convictions are admissible under Rule 609 only the name of the conviction, its date and the sentence imposed is put in evidence. See United States v. Estrada, 430 F.3d 606, 620-21 (2nd Cir. 2005).
REMAINING MOTIONS IN LIMINE
A. Defendants' Motion (No. 1) To Preclude Evidence or Argument That Defendants Violated State Regulations or Department Internal Policies Defendants seek to exclude any evidence or argument suggesting that defendants violated the Sheriff's Departments internal policies by placing plaintiff in a "sobriety cell" at the jail following his arrest or by placing him in a "safety cell" following the incident in question. They also seek to preclude admission of any evidence suggesting that state regulations or Sheriff's Department policies regarding cell checks were not complied with following plaintiff's in the "safety cell." Defendants argue that non-compliance with these regulations or policies cannot provide the basis for liability, is therefore irrelevant and admission of such evidence would be unduly prejudicial to their defense.
Plaintiff counters that with respect to his placement in the "sobriety cell" the concern is that defendants will continue to use the term to falsely create the false impression that he was under the influence. He claims that he was placed in the cell, where the alleged excessive use of force occurred, in error. He argues that he has offered not to refer to the regulations or policies regarding the use of the cell if defendants agree to stipulate that he was not under the influence, but they have declined. With respect to the use of the "safety cell" plaintiff argues that defendants lack of compliance with regulations and policies regarding its use irrelevant to his claim that his placement in that cell without water while shackled and with sewage still on his face and clothing was gratuitously prolonged and constitutionally unreasonable. Finally, plaintiff points out that defendants listed the Sheriff's Department policies at issue in their list of trial exhibits which was incorporated into the Final Pretrial Order and that each party is allowed under that order to offer any exhibit listed by the other party.
Plaintiff's arguments in this regard are persuasive. Defendants' motion in limine to exclude the policies and regulations in question from evidence will be denied without prejudice to any specific objection to the particular use of the exhibits at trial. Defendants may propose an appropriate jury instruction providing that non-compliance with internal policies does not provide the basis for liability under 42 U.S.C. § 1983, if they wish.
B. Defendants' Motion (No. 5) To Preclude Testimony By Plaintiff's Raw Sewage Expert Dr. Theis According to his report dated March 10, 2010, plaintiff's expert, Jerold H. Theis, D.V.M , Ph.D is a U.C. Davis Parasitologist with forty-six year of experience working with infectious diseases. Dr. Theis has opined that someone placed face-down in raw sewage for three minutes and then remains in the contaminated clothing for several hours without being washed off, as plaintiff alleges was the case here, could potentially be exposed to virusis, bacteria, fungi and protoza. Dr. Theis also opines that someone directly exposed to raw sewage should instead immediately remove his clothes and wash his entire body. Finally, he states that raw sewage is malodorous.
Defendants seek to exclude this testimony on the grounds that it is irrelevant. In this regard, defendants argue that there is no evidence that plaintiff was exposed to raw sewage, plaintiff does not allege that he has suffered from any of risks associated with exposure to raw sewage described by Dr. Theis, and is otherwise irrelevant to the question of whether the defendants subjected plaintiff to the excessive use of force. Finally, defendants contend that such testimony will only mislead and confuse the jury and waste the court's time.
Plaintiff opposes the motion in limine, arguing that Dr. Theis' testimony regarding the risks posed by exposure to raw sewage is highly relevant to the objective reasonableness of defendants' conduct which is the primary issue of ultimate fact to be determined by the jury in this case. Plaintiff's view of the evidence is that the defendant officers forced him face down into raw sewage, that had backed up onto the floor of the cell in which he was being held, for several minutes. Plaintiff contends that based upon the depositions of defendants and others that the defense will attempt to minimize the conduct by describing the raw sewage that covered the cell floor merely as odorless, untreated, non-potable water. Plaintiff contends that the "sobriety cell" floor was covered with yellowish raw sewage that backed up out of the floor drains and smelled of excrement. He argues that Dr. Theis' testimony is ...