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Silvester v. Harris

United States District Court, E.D. California

March 12, 2014

JEFF SILVESTER, et al., Plaintiffs
v.
KAMALA HARRIS, Attorney General of California, and DOES 1 to 20, Defendants

ORDER ON MOTIONS IN LIMINE (Doc. Nos. 51, 53, 54, 55, 56).

ANTHONY W. ISHII, District Judge.

On March 11, 2014, the Court held a hearing on the parties' motions in limine. This order memorializes the rulings made.

I. Plaintiffs' Motions

1. P's MIL #1 (Doc. No. 53) Exclude Witnesses From The Courtroom

Plaintiffs' request that the Court exclude witnesses pursuant to Federal Rule of Evidence 615. Defendant filed a statement of non-opposition.

Ruling

This motion is in limine is GRANTED and witnesses from the courtroom will be excluded pursuant to Rule 615.

2. P's MIL #2 (Doc. No. 54) Exclude Expert Witness Evidence & Limit Lay Opinion Testimony

Plaintiffs argue that neither side has disclosed expert witnesses, received expert reports, or deposed experts. However, Defendants have disclosed a number of witnesses who are employees of the California Department of Justice - Firearms Bureau. Plaintiffs anticipate that Defendant will attempt to introduce expert opinion evidence in the form of lay testimony that does not meet the requirements of FRE 701. Although the "balls & strikes" of what is an expert opinion and what is lay opinion may have to wait for an offer of proof or in testimony as it is given at trial, it is prudent for the Court to be aware of and on watch for this issue at trial.

Harris argues inter alia that she does not oppose the exclusion of expert testimony, as she has filed a similar motion. However, the request to limit lay opinion testimony, untethered to any suspected testimony, is improper.

Ruling

There is no dispute that neither side disclosed or designated experts as required by Federal Rule of Civil Procedure 26(a)(2). Because no designation/disclosures were made, the Court will follow Federal Rule of Civil Procedure 37(c)(1). Therefore, expert testimony will be excluded unless the proponent of the testimony can show either an absence of harm or substantial justification for failing to disclose the expert under Rule 26(a)(2). See Fed. R. Civ. Pro. 37(c)(1). At trial, the Court will address objectionable testimony as it occurs, and the Court will be cognizant of Federal Rule of Evidence 701. Accordingly, this motion is reserved.

3. P's MIL #3 (Doc. No. 55) Burden of Proof

Plaintiffs argue that the summary judgment order found that the 10-day waiting period burdens the Second Amendment. Accordingly, it is Defendant's burden to show that the Second Amendment, as historically understood, did not apply for a period of time between the purchase/attempted purchase of a firearm and possession of that firearm. Further, it is the Defendant's burden to show that the laws at issue are constitutional through either intermediate scrutiny or strict scrutiny. Rational basis review does not apply. Plaintiffs request that the Court make three rulings: (1) Plaintiffs will have met their burden by setting forth evidence that (a) at all relevant times the Plaintiffs have each owned at least one firearm, (b) at all relevant times, one effect of Penal Code ยงยง 26815 and 27540 has been that all California residents lawfully purchasing firearms must wait a minimum of 10 days between applying to purchase the firearms and ...


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