ORDER RE: FURTHER MOTIONS IN LIMINE (Docs. 218 and 220)
Plaintiff Robert Morris (hereinafter referred to as "Plaintiff") and defendant Officer Christopher Long (hereinafter referred to as "Defendant") have filed competing motions in limine. For reasons discussed below, the motions shall be granted in part and denied in part.
II. FACTS AND PROCEDURAL BACKGROUND
The Court refers the parties to previous orders for a complete chronology of the proceedings. On January 11, 2012, Plaintiff filed his ninth amended complaint, asserting one cause of action against Defendant for federal civil rights violations (in particular, excessive force in violation of the Fourth Amendment right to be free of unreasonable searches and seizures) pursuant to 42 U.S.C. § 1983.
In the ninth amended complaint, Plaintiff alleged as follows:
"4. . . . [P]laintiff was taken by Officer Long to a Fresno Police Department facility located near Shaw Avenue and 6th Street for purposes of a forced blood draw. During the course of said blood draw, Officer Long unnecessarily and with extreme force administered a control hold on plaintiff's left arm while blood was being drawn from his right arm. Officer Long continued this extreme use of force for a prolonged time, resulting in severe and permanent injuries to plaintiff's left arm and shoulder. [¶] 5. Officer Long's use of force in connection with the forced blood draw was totally unnecessary, as plaintiff was cooperative throughout his interaction with Officer Long, even though he had been the victim of a battery and robbery . . . ."
On April 13, 2012, the parties filed initial motions in limine. The parties filed further motions in limine on July 8, 2012 and oppositions and replies on July 23, 2012 and July 30, 2012, respectively.
Motions in limine may be "made before or during trial, to exclude anticipated prejudicial evidence before the evidence is actually offered." Luce v. U.S., 469 U.S. 38, 40 n. 2, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). "Although the Federal Rules of Evidence do not explicitly authorize in limine rulings, the practice has developed pursuant to the district court's inherent authority to manage the course of trials." Id. at 41 n. 4. Under Federal Rule of Evidence 403, "[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time or needlessly presenting cumulative evidence." Fed. R. Evid. 403."Evidence is relevant if [¶] (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and [¶] (b) the fact is of consequence in determining the action." Fed. R. Evid. 401.
A. Plaintiff's motions in limine*fn1
1. Motion in limine #1: Untimely disclosed or undisclosed witnesses and evidence -- In his initial motions in limine filed April 13, 2012, Plaintiff, pursuant to Federal Rules of Civil Procedure 26(a) and (e), first moved to exclude "any evidence or witnesses not timely disclosed during discovery." In particular, Plaintiff contended the defense had listed documents (nos. 20-22, 23 (in part), 24 and 27-29) and witnesses (nos. 14 and 17-58) in the pretrial order issued April 3, 2012 that had not been disclosed to Plaintiff or disclosed during discovery with reasonable particularity, either in Defendant's initial disclosures or responses to written discovery requests. Finding Plaintiff had failed to provide evidence (in the form of his own declaration or a declaration from counsel) to show this was the case, the Court reserved ruling on the motion in its April 27, 2012 order. Plaintiff now renews this motion, pointing to a declaration filed April 29, 2012 by Plaintiff's counsel Kevin Little that Plaintiff contends establishes Defendant did not comply with his discovery obligations.
In opposition, Defendant contends Rule 26 does not require the disclosure of witnesses or evidence where they would be used solely for impeachment purposes. Rule 26 provides in pertinent part, "[A] party must, without awaiting a discovery request, provide to the other parties: [¶] (i) the name and, if known, the address and telephone number of each individual likely to have discoverable information -- along with the subjects of that information -- that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment; [¶] (ii) a copy -- or a description by category and location -- of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment[.]" Fed. R. Civ. P. 26(A). To the extent Defendant intends for his argument here to be construed as a representation he intends to use the witnesses and evidence at issue solely for impeachment purposes, the Court would agree Defendant's failure to disclose them would not preclude their admissibility/ability to testify. To the extent Defendant does not so intend, the Court, having reviewed the pleadings of record and all competent and admissible evidence submitted, would find as follows:
* defense witness nos. 19 and 20 may be permitted to testify;
* defense witness nos. 18 and 21-56 are precluded from testifying;
* defense exhibit nos. 20-23, 27 and 29 are admissible;
* defense exhibit nos. 24 and 28 are inadmissible.
The Court shall leave it to Defendant to clarify at the hearing how he intends to proceed, and shall rule accordingly. Thus, ruling on Plaintiff's motion in limine #1 remains RESERVED.
2. Motion in limine #2: Character evidence -- Contending such evidence constitutes impermissible character evidence, Plaintiff, in his initial motions in limine filed April 13, 2012, further moved to preclude Defendant from introducing "(1) any evidence suggesting that [Plaintiff] has ever used alcohol excessively; (2) evidence of [Plaintiff's] prior arrests unrelated to the subject incident; (3) evidence of confrontations with police officers unrelated to the subject incident; (4) evidence of [Plaintiff's] mental health hospitalization and history unrelated to the incident and his damages resulting therefrom; and (5) evidence of [Plaintiff's] medical history unrelated to the incident and his damages resulting therefrom." In its April 27, 2012 order, the Court denied this motion in its entirety, finding such evidence was relevant and admissible on the issues of economic and emotional distress damages. Plaintiff now renews the motion, but provides no argument or evidence why the Court should reconsider its previous denial. Accordingly, motion in limine #2 remains DENIED.
3. Motion in limine #3: Internal Affairs investigation -- In his initial motions in limine filed April 13, 2012, Plaintiff further moved to exclude "the result of the Fresno Police Department's internal affairs investigation into the underlying accident as evidence of the 'correctness' of [Defendant's] actions," contending the results of such investigations are irrelevant and "typically not admissible in civil rights actions." Defendant did not oppose this motion in his opposition filed April 23, 2012. Therefore, the Court granted the motion in its April 27, 2012 order. Plaintiff does not request any further relief as to this motion. Accordingly, motion in limine #3 remains GRANTED.
4. Motion in limine #4: Extrinsic information -- In his initial motions in limine filed April 13, 2012, Plaintiff further moved to preclude Defendant "from justifying the force used against [Plaintiff] on the basis of any information other than that known to [Defendant] at the time of the incident," contending an officer's use of force "must be justified based on the information then known to him, not later-acquired information." The Court noted as follows in its April 27, 2012 order:
" '[A]n officer's use of excessive force to effect an arrest is a violation of a person's Fourth Amendment right to be free from unreasonable searches and seizures.' Bryan v. MacPherson, 630 F.3d 805, 817 (9th Cir. 2010) (emphasis added). Plaintiff correctly observes that '[a]s in other Fourth Amendment contexts . . . , the "reasonableness" inquiry in an excessive force case is an objective one: the question is whether the officers' actions are "objectively reasonable" in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.' Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (emphasis added). That is to say, reasonableness 'must be judged from the perspective of [an] officer on the scene, rather than with the 20/20 vision of hindsight.' Id. at 396. Accordingly, in determining whether an officer's actions were reasonable, the trial court 'cannot consider evidence of which the officer[ ] [was] unaware.' Glenn v. Washington County, 673 F.3d 864, 872-74, 873 n. 8 (9th Cir. 2011) (statements mother of victim fatally shot by responding officers made to 911 operator that victim ' "threatened to kill everybody" ' and 'might "run at the cops with a knife" ' could not serve as a basis for summary judgment where district court correctly assumed the officers did not know of such statements, even though the statements might have ' "demonstrat[ed] that the officers' safety concerns were not at odds with information provided to law enforcement')."
Plaintiff did not, however, identify any evidence to exclude pursuant to the foregoing authority. Instead, Plaintiff simply sought to prevent Defendant from introducing evidence to prove or controvert certain portions of the reasonableness inquiry, which the Court concluded was not a proper motion in limine but rather a request for an evidentiary sanction. Therefore, the Court denied the motion. Plaintiff now renews the motion "to specify that all of the character evidence outlined . . . in motion in limine [#] 2 should be excluded pursuant to this motion, since it is uncontroverted that the defendant had no prior knowledge of the defendant [sic; Plaintiff?] or his history at the time force was used." Problematically for Plaintiff, the Court has already ruled that the evidence specified in Plaintiff's motion in limine #2 is relevant and admissible for the (non-character based) purpose of contesting Plaintiff's claimed economic and emotional distress damages. To the extent Plaintiff intends to suggest the evidence ...