Motions In Limine Hearing & Trial Confirmation: MAY 20, 2013 1:30 P.m., Courtroom 2 Trial: JUNE 4, 2013 8:30 a.m., Courtroom 2 RULES OF CONDUCT
The pretrial conference was held on November 7, 2012. On December 13, 2012, per stipulation of the parties, the Court continued the trial to June 4, 2013. As per the stipulation and order, the Court issues this amended pre-trial order to reflect the June 4, 2013, trial date. The parties estimate that the trial will last no more than 5 days.
I. Jurisdiction and Venue
There are no disputes regarding jurisdiction or venue in this action. The Court has federal question jurisdiction based on Plaintiff's claims under 42 U.S.C. § 1983.
This case will be tried before an eight person jury.
1. On March 21, 2009, at approximately 0150 hours, defendants Francisco Banuelos and Sally Carrasco, both officers from the California Highway Patrol and while on duty, conducted a vehicle stop of plaintiff Paul J. Lopez at or about the intersection of Coffee Road and Granite Hills Drive in the City of Bakersfield, California.
2. After parking his vehicle in a parking lot of a restaurant near the intersection, plaintiff Paul Lopez stepped out of his vehicle without a command or prompting from the defendant officers. He approached the officers.
3. Plaintiff Paul Lopez had a conversation with the defendant officers, at which time he began to run from the location heading east along the north side of Granite Falls Drive.
4. Officers Banuelos and Carrasco ordered plaintiff to stop running, which he disregarded. They then gave chase on foot.
5. Officers fired a dart from his duty Taser weapon at plaintiff Lopez in an effort to stop him from escaping, but the dart missed. Plaintiff was aware the dart had been fired and missed, but continued running.
6. Officer Carrasco obtained a ride from an unknown civilian, overtaking and passing plaintiff Lopez as he ran east. She got out of the vehicle and ordered plaintiff to stop at gunpoint.
7. Along the entire north side of the sidewalk along Granite Falls Drive there is a cinder block wall approximately 7-8 feet high.
8. Officer Banuelos fired a second Taser dart at plaintiff Lopez striking him in the back, and causing Lopez to lose control of his body and fall.
9. Plaintiff Lopez struck the back of his head on the cement sidewalk, suffering injuries. Officers Banuelos and Carrasco summoned emergency medical personnel, who arrived shortly and administered emergency first aid to plaintiff Lopez, and then transported him to Kern Medical Center.
1. Whether Officers Banuelos and Carrasco advised plaintiff Lopez that they were going to arrest him on outstanding warrants in the name of Paul Jeremiah Lopez, another person wanted on three different warrants.
2. Whether plaintiff Lopez tried to assault Officer Carrasco when she ordered him to stop at gunpoint, or whether he surrendered and physically and audibly informed the officers he "was done" running.
3. Whether Officer Banuelos fired the Taser dart the second time at plaintiff Lopez in an effort to protect his partner Officer Carrasco from being assaulted by plaintiff Lopez, or whether he fired the Taser dart to punish plaintiff Lopez for running from the officers.
C. Disputed Evidentiary Issues
None identified at this time.
D. Special Factual Information
1. Plaintiff Paul Lopez alleges that defendants Carrasco and Banuelos were going to arrest him on warrants for another person whose name was similar but different from his. He ran from them, and was Tased by officer Banuelos in the back when he was surrendering to the officers. He alleges the officer improperly and unreasonably used the Taser against him, which is an intermediate and significant level of force which can only be used in repelling an imminent assault which threatens the officers' safety, in violation of his Fourth Amendment right against an unreasonable seizure and actionable under 42 U.S.C. §1983. He denies attempting to assault officer Carrasco.
Defendants claim plaintiff Lopez ran from them, alerting them to the possibility that he would resort to violence to resist arrest, that they ordered him to stop and he refused, that they fired a Taser dart at him while he was running which missed, and that at the end of the chase he attempted to assault officer Carrasco. They allege the use of the Taser in such circumstances was not unreasonable and perfectly legitimate according to their training and the law as necessary to prevent the possibility of great bodily injury against officer Carrasco.
2. Plaintiff Lopez is 44 years old, suffered injuries to his neck, back, and brain, and has been diagnosed with Iclonic Toxic Seizures, which occur periodically and particularly at times of great stress and anxiety. He was hospitalized for a few days, and has been under the care of a doctor for months later until his insurance was cancelled. He now self-medicates with prescription marijuana, which is more effective than the anti-seizure medication he had been previously prescribed. Most of the medical care he received was while on insurance with Kaiser Permanente, and they have filed a lien on this litigation. The total amount of medical expenses is unknown at this time. Doctors had plaintiff on total disability until his insurance ran out. He was previously employed full-time as a manager of tire stores, averaging about $45,000 per year, but has been unemployed since the incident and is unable to obtain employment in the same industry due to the concern of prospective employers that he could suffer a seizure while at work. He has suffered, and continues to suffer great emotional trauma, both because of the incident and the resulting injuries, and because of the slim prospect that he will again be gainfully employed during his lifetime.
Plaintiff seeks compensatory damages for the injuries he suffered, including medical expenses, loss of earnings (both past and future), and general damages for his injuries and emotional distress.
Tasers "used in dart-mode constitute an intermediate, significant level of force that must be justified by the government interest involved." Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010). The use of a Taser in dart-mode on an unarmed misdemeanant who is noncompliant, but not overtly threatening, or posing any other concern for the safety of the officer or the subject, is unreasonable.
None identified. VII. Witnesses
The following is a list of witnesses that the parties expect to call at trial, including rebuttal and impeachment witnesses. NO WITNESS, OTHER THAN THOSE LISTED IN THIS SECTION, MAY BE CALLED AT TRIAL UNLESS THE PARTIES STIPULATE OR UPON A SHOWING THAT THIS ORDER SHOULD BE MODIFIED TO PREVENT "MANIFEST INJUSTICE." Fed. R. Civ. P. 16(e); Local Rule 281(b)(10).
7. Deanna Shanti, girlfriend
8. Kevin West, General Manager Carol's Tire Store
9. Colleen Pollock, Public Defender
10. William J. Meyer, M.D.