United States District Court, N.D. California, San Jose Division
ORDER ON MOTIONS IN LIMINE
HOWARD R. LLOYD, Magistrate Judge.
This case arises from the fatal shooting of Valente Galindo by Officer Lee Tassio. It is undisputed that Tassio entered the Galindo residence in pursuit of Manuel Fuentes, that Fuentes tossed a gun into Galindo's bedroom, and that Tassio shot and killed Galindo. The parties dispute whether Galindo reached for, picked up, and/or pointed the gun at Tassio, as well as whether Tassio's use of force was reasonable. The final pretrial conference was held on June 3, 2014, at which time the Court heard the parties' motions in limine. With the exceptions of Tassio's motions in limine numbers one and five, which were granted on the record as part of the pretrial order, the Court deferred ruling on the motions. See Dkt. No. 102. The Court now issues the following order on the deferred motions.
A. Plaintiffs' Motions in Limine
Plaintiffs move to exclude evidence of or reference to the following: (1) alleged gang activity/affiliation of Manuel Fuentes; (2) tattoos and alleged gang activity/affiliation of Galindo; (3) that the gun had been used in a prior murder; (4) Galindo's criminal record; (5) Galindo's employment status; (6) Galindo's use of drugs and alcohol; (7) Fuentes' guilty plea; and (8) testimony of gang expert Michael Whittington. See Dkt. Nos. 77-84. Plaintiffs generally argue that the evidence is irrelevant insofar as it was unknown to Tassio at the time of the shooting because it is not probative of whether his use of force was objectively reasonable in view of his subjective knowledge of the circumstances. Alternatively, the evidence is improper character evidence, andin any case, it should be excluded because its probative value is substantially outweighed by the risk of unfair prejudice, confusion of issues and waste of time. See Fed.R.Evid. 403.
Tassio generally asserts that the evidence is relevant to the key disputed factual issue of whether Galindo reached for, picked up, and pointed the gun at him. See Dkt. No. 86, Def. Opp'n. His theory underlying the entire incident is that Fuentes and Galindo conspired to retain the gun in the possession of their gang, El Hoyo Palmas ("EHP"). Thus, the evidence is relevant to explain their actions and is probative of Galindo's motive and intent in going for the gun.
1. Fuentes' Alleged Gang Activity or Affiliation
The Court agrees with Tassio that some evidence of Fuentes' gang affiliation is relevant to the officers' state of mind, explains their actions, and ultimately bears on whether Tassio's use of force was reasonable in light of the circumstances known to him at the time of the shooting. Accordingly, evidence of or reference to Fuentes' gang affiliation is admissible to the extent that it was known to Tassio and/or Kilmer at the time of the incident. For example, they may testify that Fuentes was wearing a Pittsburgh Pirates hat, which they know to be commonly worn by EHP members.
As far as any additional evidence of Fuentes' gang affiliation being relevant to whether Galindo reached for the gun and pointed it at Tassio, the Court thinks its probative value is marginal at best and is substantially outweighed by the risk that the jury draws impermissible character inferences, is misled from the more critical issues in the case, and attaches "guilt by association" to Galindo. See, e.g., Kennedy v. Lockyer, 379 F.3d 1041 (9th Cir. 2004) ("Our cases make it clear that evidence relating to gang involvement will almost always be prejudicial and will constitute reversible error.... [T]he use of gang membership evidence to imply guilt by association' is impermissible and prejudicial."). Thus, except as described above with respect information then known to the officers, evidence of or reference to Fuentes' alleged gang affiliation is excluded based on Rule 403. See, e.g., Lee v. Anderson, 616 F.3d 803, 810 (8th Cir. 2010) ("[E]vidence of Fong Lee's gang membership was, at best, marginally probative of his motive in fleeing from the officers.... Given its low probative value and the danger of unfair prejudice, the gang affiliation evidence should have been excluded."). Accordingly, Plaintiffs' motion is GRANTED IN PART and DENIED IN PART.
2. Galindo's Tattoos and Alleged Gang Activity Or Affiliation
The parties raise many of the same arguments as addressed above, and the Court likewise finds that any evidence of Galindo's alleged gang affiliation known to the officers and relevant to the their then existing state of mind - for example, that Galindo was wearing red, a color associated with EHP - is admissible. And similarly, the Court finds that any further evidence of Galindo's alleged gang affiliation is substantially more prejudicial than probative due to the very high risk that the jury draws the impermissible inference that because Galindo is affiliated with a gang, he has a violent, criminal disposition with which he conformed at the time of the shooting. Additionally, if Tassio is allowed to introduce extraneous evidence that Galindo was a gang member or associate, Plaintiffs maintain that they will to introduce evidence to rebut it. The Court will then be faced with a mini trial within a trial, which further risks confusion of the issues, misleading the jury, and waste of time. Thus, except as described above with respect to the officers' then existing state of mind, the evidence of Galindo's alleged gang affiliation is excluded based on Rule 403. Accordingly, Plaintiffs' motion is GRANTED IN PART and DENIED IN PART.
Furthermore, though, the Court agrees with Tassio that such gang affiliation evidence may be admissible for impeachment or in rebuttal depending on whether Plaintiffs open the door to this subject. Thus, should Plaintiffs introduce evidence that Galindo was not affiliated with a gang, then Tassio may counter with gang affiliation evidence that is otherwise excluded.
3. Unrelated Shooting Incident
For the same reasons as described above with respect to gang affiliation evidence generally, the Court GRANTS Plaintiffs' motion to exclude evidence that the gun possessed by Fuentes was previously used in a murder.
4. Galindo's Misdemeanor Criminal History and Prior Contacts with Law Enforcement
Tassio asserts that this evidence is "relevant to show his hostility towards law enforcement to assist with explaining his intent (motives), preparation, and plan." Def. Opp'n at 6. However, Galindo's actual subjective intent in reaching for the gun is not in itself relevant to whether Tassio's use of force was reasonable, and using evidence of Galindo's criminal history to prove that he had a general hostility toward law enforcement that made him more likely to have reached for the gun is precisely the type of character evidence the rules prohibit. See Fed.R.Evid. 404(b). To the extent that Galindo's criminal history is at all indirectly probative of whether he did in fact reach for the gun, it is substantially outweighed by the risk that the jury will use the evidence to draw an impermissible character inference.
Furthermore, Galindo's criminal history is not relevant to damages. The parties' proposed jury instruction on wrongful death, CACI 3921, provides that the jury may consider the decedent's "health, habits, activities, lifestyle, and occupation" in deciding the decedent's "life expectancy." However, the instructions only provide that life expectancy be taken into account for economic damages, and here, Plaintiffs seek only noneconomic damages. Moreover, the Directions for Use of CACI state, "This definition [of life expectancy] is intended to apply to the element of damages pertaining to the financial support the decedent would have provided to the plaintiff." See also Cotton v. City of Eureka, No. C 08-04386 SBA, 2010 WL 5154945, at *12 (N.D. Cal. Dec. 14, 2010) (noting that CACI 3921 provides for both economic and non-economic damages and finding that decedent's homelessness was ...