United States District Court, E.D. California
REYNALDA MOLINA, individually; JACQUELINE MENDEZ-MADUENA, individually; G.M., a minor; J.M., a minor; and N.A.C., a minor, and each of them, by and through their guardian ad litem VERONICA AYON, Plaintiff,
v.
CITY OF VISALIA, a municipal corporation; ADAM COLLINS; DANIEL ROBERTS; DIRK ALFANO, individually, and in their official capacity; and DOES 4 through 100, inclusive, Defendants.
AMENDED PRETRIAL ORDER (DOC. NO. 106)
On June
20, 2014, plaintiffs Reynalda Molina and Jacqueline
Mendez-Madueña with minors G.M. and N.A.C. through
guardian ad litem Veronica Ayon filed the currently
operative second amended complaint (“SAC”)
against the City of Visalia, Officer Adam Collins, Officer
Daniel Roberts, Officer Dirk Alfano, and DOES four through
one hundred. (Doc. No. 40.) The action stems from a high
speed chase and encounter with police during which shots were
fired that resulted in deaths of Ruben Molina and Edwardo
Madueño. The SAC alleges causes of action for: (1)
unreasonable search and seizure and use of excessive force
under 42 U.S.C. § 1983; (2) substantive due process
under 42 U.S.C. § 1983; (3) wrongful death under
California Government Code §§ 815.2(a), 820(a) and
California Civil Code § 43; (4) negligence survival
action; (5) negligence under California Government Code
§ 815.2(a); and (6) assault and battery under California
Government Code § 815.2(a). (Id.)
On June
20, 2016, the court conducted a final pretrial conference.
Peter Bersin, Charles Charlton, and Kyle Tracy appeared
telephonically as counsel for plaintiffs; and Leonard Herr
appeared as counsel for defendants. (Doc. No. 101.) On June
27, 2016, this court issued a pretrial order. (Doc. No. 105.)
In said order, the court, inter alia, granted the
parties fourteen days to file objections and granted each
party seven days thereafter to respond to the other
party’s objections. (Id.) On July 11, 2016,
defendants filed objections seeking (1) to add Amanda Hughes
as a witness and (2) to correct a clerical mistake in the
pretrial order in changing the due date for replies to any
objections to motions in limine from August 8, 2016 to August
15, 2016. (Doc. No. 106.) Defendants state that Amanda Hughes
was identified as a witness in defendants’ initial
disclosures and her statement was provided to plaintiffs in
early discovery, but that defendants inadvertently left her
name off the list of witnesses in the pretrial statement.
(Id. at 1-2.) Plaintiffs did not file any objections
of their own to the pretrial order or a response to
defendants’ objections. After a review of the record
herein and good cause appearing, the court finds it
appropriate to amend the pretrial order to add Amanda Hughes
as a witness and to correct the due date for replies to any
objections to motions in limine to August 15, 2016. The court
therefore makes the following findings and orders:
I.
JURISDICTION/VENUE
Jurisdiction
is predicated on 28 U.S.C. §§ 1331, 1343, and 1367.
Jurisdiction is not contested. Venue is proper pursuant to 28
U.S.C. § 1391(b). Venue is not contested.
II.
JURY
Both
parties have demanded a jury trial for all issues. The jury
will consist of nine jurors.
III.
UNDISPUTED FACTS
1.
Reynaldo Molina is the mother of decedent Ruben Molina.
2.
Ruben Molina was 22 years old at the time of his death.
3.
Jacqueline Mendez-Madueña is the wife of decedent
Edwardo Madueña.
4.
G.M., and J.M., are the minor children of decedent Edwardo
Madueña.
5.
Edwardo Madueña was 19 years old at the time of his
death.
6.
Daniel Roberts fired his weapon 13 times on October 26, 2012.
7. Adam
Collins fired his weapon 13 times on October 26, 2012.
8. Dirk
Alfano fired his weapon seven times on October 26, 2012 9.
Edwardo Madueña was driving a white Hyundai Sonata at
the time of the police pursuit on October 26, 2012.
10.
Adam Collins was the driver of Visalia Police Department unit
# 069 during the police pursuit on October 26, 2012.
11.
Dirk Alfano was Adam Collins’ partner and was in the
right front seat in vehicle 069.
12.
Daniel Roberts was the driver of Visalia Police Department
unit # 079 during the police pursuit on October 26, 2012.
13.
Amanda Hughes was a civilian ride-along and was in the right
front seat in Visalia Police Department unit # 079.
14.
Daniel Roberts did not discuss a plan of action with Adam
Collins or Dirk Alfano during the pursuit or before
approaching on foot the overturned Hyundai Sonata on October
26, 2012.
15.
Dirk Alfano did not discuss a plan of action with Daniel
Roberts or Adam Collins during the pursuit or before
approaching on foot the overturned Hyundai Sonata on October
26, 2012.
16.
Adam Collins did not discuss a plan of action with Daniel
Roberts or Dirk Alfano during the pursuit or before
approaching on foot the overturned Hyundai Sonata on October
26, 2012.
17. It
is not known which of the three officers fired his weapon
before the other officers started to fire their weapons.
18.
Each time Adam Collins fired his weapon on October 26, 2012,
it was a use of force likely to cause death or serious bodily
injury.
19.
Each time Dirk Alfano fired his weapon on October 26, 2012,
it was a use of force likely to cause death or serious bodily
injury.
20.
Each time Daniel Roberts fired his weapon on October 26,
2012, it was a use of force likely to cause death or serious
bodily injury.
21.
Edwardo Madueña did not have a high school diploma
from an accredited institution.
IV.
DISPUTED FACTUAL ISSUES
1.
Whether Edwardo Madueña while fleeing on foot after
exiting the crashed and overturned vehicle, made a quarter
turn toward Adam Collins and had his hands at his waist.
2.
Whether the Hyundai Sonata failed to stop behind a limit line
for a stop sign which alleged failure was the reason for
pulling over the vehicle on October 26, 2012 by Visalia
Police Department Officers Adam Collins and Dirk Alfano.
3.
Whether the real reason for pulling over the Hyundai Sonata
was something other than as stated by Officers Adam Collins
and Dirk Alfano.
4.
Whether there were more than 5 occupants in the Hyundai
Sonata on October 26, 2012 at the time it crashed and
overturned.
5.
Whether any occupant other than Edwardo Madueña, had
anything to do with its failure to stop on October 26, 2012
after being directed to do so by Visalia Police Department
Officers Adam Collins and Dirk Alfano.
6.
Whether Robert Ruiz heard any shots which he believed were
coming from inside the Hyundai Sonata on October 26, 2012
after it crashed and overturned.
7.
Whether any person in the Hyundai Sonata at the time it
rolled over was the owner or possessor of a Colt .45 series
70 handgun containing a magazine with five (5) live rounds.
8.
Whether any person in the Hyundai Sonata at the time it
rolled over was the owner or possessor of a CZ 97 9mm Rugar
pistol containing a magazine with thirteen (13) live rounds.
9.
Whether any person in the Hyundai Sonata at the time it
rolled over was the owner or possessor of a magazine
containing seventeen (17) live rounds of .308 rifle
ammunition.
10.
What Officer Collins said, if anything, to any of the
passengers of the Hyundai before he started firing his
weapon.
11.
What Officer Alfano said, if anything, to any of the
passengers of the Hyundai before he started firing his
weapon.
12.
What Officer Roberts said, if anything, to any of the
passengers of the Hyundai before he started firing his
weapon.
13.
Whether Officers Collins, Alfano, or Roberts had any reason
to believe the passengers of the Hyundai presented a threat
to the lives or safety of the officers or others at the time
Officers Collins, Alfano and Roberts began firing their
weapons.
14. The
location of Adam Collins after exiting his patrol vehicle,
each time he fired his weapon at any of the passengers who he
shot.
15. The
location of Dirk Alfano after exiting his patrol vehicle,
each time he fired his weapon at any of the passengers who he
shot.
16. The
location of Daniel Roberts after exiting his patrol vehicle,
each time he fired his weapon at any of the passengers who he
shot.
17.
Whether Officer Collins, Officer Alfano or Officer Roberts
heard gunfire coming from or near the Hyundai prior to the
time they began firing their weapons.
18.
N.A.C. is the minor child of decedent Edwardo Madueña.
19.
Defendant Daniel Roberts shot and killed Ruben Molina on
October 26, 2012.
20.
Defendant Adam Collins shot and killed Edwardo Madueña
on October 26, 2012.
21.
Edwardo Madueña was shot once in the back of his head.
22.
Defendant Dirk Alfano shot and wounded Nicholas Chavez on
October 26, 2012.
23.
Nicholas Chavez was shot in the leg and in the abdomen.
24.
Ruben Molina was not armed at the time Daniel Roberts shot at
him.
25.
Edwardo Madueña was not armed at the time Adam Collins
shot at him.
26.
Nicholas Chavez was not armed at the time Dirk Alfano shot at
him.
27.
Ruben Molina was the right front passenger in Edwardo
Madueña’s vehicle which was involved in the
police pursuit on October 26, 2012.
28.
Nicholas Chavez was the left rear passenger in Edwardo
Madueña’s vehicle which was involved in the
police pursuit on October 26, 2012.
29.
Shanele Alvarado was the middle rear passenger in Edwardo
Madueña’s vehicle which was involved in the
police pursuit on October 26, 2012.
30.
Robert Ruiz was the right rear passenger in Edwardo
Madueña’s vehicle which was involved in the
police pursuit on October 26, 2012.
31. The
only occupants in Edwardo Madueña’s vehicle were
Edwardo Madueña, Rubin Molina, Nicholas Chavez,
Shanele Alvarado and Robert Ruiz on October 26, 2012 at the
time it crashed, rolled over and ended up upside down.
32.
Before the attempted stop of Edwardo Madueña’s
vehicle by Visalia Police Department Officers Adam Collins
and Dirk Alfano on October 26, 2012, everyone in the vehicle
had been to Jack in the Box for food.
33. At
the time Adam Collins and Dirk Alfano attempted to pull over
Edwardo Madueña’s vehicle, Edwardo
Madueña was driving the four passengers to their homes
or to a location near where they lived.
34. The
reason given by Adam Collins and Dirk Alfano for attempting
to pull over Edwardo Madueña’s vehicle was an
alleged violation of the Vehicle Code section 22450, failing
to stop behind a marked limit line at a stop sign.
35. On
October 26, 2012, at the time Adam Collins and Dirk Alfano
attempted to pull over Edwardo Madueña’s
vehicle, they had no knowledge of the identity of the driver
or the passengers in Edwardo Madueña’s vehicle.
36.
October 26, 2012 at the time Adam Collins and Dirk Alfano
attempted to pull over Edwardo Madueña’s vehicle
they had no knowledge of whether the driver or the passengers
in Edwardo Madueña’s vehicle had any criminal
record.
37.
Adam Collins, Dirk Alfano and Daniel Roberts engaged in a
high risk pursuit of Edwardo Madueña’s vehicle
on the evening of October 26, 2012.
38.
During the high risk pursuit Adam Collins and Dirk Alfano
reached speeds of up to 100 mph.
39.
During the high risk pursuit Daniel Roberts reached speeds of
up to 100 mph.
40. At
the time Adam Collins, Dirk Alfano and Daniel Roberts engaged
in the high risk pursuit, they had no knowledge of the
identity of the driver or the passengers in Edwardo
Madueña’s vehicle.
41. At
the time Adam Collins, Dirk Alfano and Daniel Roberts engaged
in the high risk pursuit, they had no knowledge of whether
the driver or the passengers in Edwardo
Madueña’s vehicle had any criminal record.
42. At
the time Adam Collins, Dirk Alfano and Daniel Roberts engaged
in the high risk pursuit, they had no knowledge whether the
driver or the passengers in Edwardo Madueña’s
vehicle were armed with a weapon.
43.
Adam Collins did not call off or terminate the high risk
pursuit on October 26, 2012.
44.
Dirk Alfano did not call off or terminate the high risk
pursuit on October 26, 2012.
45.
Daniel Roberts did not call off or terminate the high risk
pursuit on October 26, 2012.
46. The
watch commander, Brian Winter, did not call off or terminate
the high risk pursuit on October 26, 2012.
47. At
the time Adam Collins, Dirk Alfano and Daniel Roberts fired
their weapons on October 26, 2012, they had no knowledge of
the identity of the driver or the passengers in Edwardo
Madueña’s vehicle.
48. At
the time Adam Collins, Dirk Alfano and Daniel Roberts fired
their weapons on October 26, 2012, they had no knowledge of
whether the driver or the passengers in Edwardo
Madueña’s vehicle had any criminal record.
49. At
the time Adam Collins fired his weapon on October 26, 2012,
he had no knowledge whether Edwardo Madueña was armed.
50. At
the time Dirk Alfano fired his weapon on October 26, 2012, he
had no knowledge whether Edwardo Madueña was armed.
51. At
the time Daniel Roberts fired his weapon on October 26, 2012,
he had no knowledge whether Edwardo Madueña was armed.
52. At
the time Adam Collins fired his weapon on October 26, 2012,
he had no knowledge whether Ruben Molina was armed.
53. At
the time Dirk Alfano fired his weapon on October 26, 2012, he
had no knowledge whether Ruben Molina was armed.
54. At
the time Daniel Roberts fired his weapon on October 26, 2012,
he had no knowledge whether Ruben Molina was armed.
55. At
the time Adam Collins fired his weapon on October 26, 2012,
he had no knowledge whether Nicolas Chavez was armed.
56. At
the time Dirk Alfano fired his weapon on October 26, 2012, he
had no knowledge whether Nicholas Chavez was armed.
57. At
the time Daniel Roberts fired his weapon on October 26, 2012,
he had no knowledge whether Nicholas Chavez was armed.
58. At
the time Adam Collins fired his weapon on October 26, 2012,
he had no knowledge weather Shanele Alvarado was armed.
59. At
the time Dirk Alfaro fired his weapon on October 26, 2012, he
had no knowledge whether Shanele Alvarado was armed.
60. At
the time Daniel Roberts fired his weapon on October 26, 2012,
he had no knowledge whether Shanele Alvarado was armed.
61. At
the time Adam Collins fired his weapon on October 26, 2012,
he had no knowledge whether Robert Ruiz was armed.
62. At
the time Dirk Alfano fired his weapon on October 26, 2012, he
had no knowledge whether Robert Ruiz was armed.
63. At
the time Daniel Roberts fired his weapon on October 26, 2012,
he had no knowledge whether Robert Ruiz was armed.
64.
Ruben Molina was not in possession of a weapon at the time
Adam Collins, Daniel Roberts & Dirk Alfano fired their
weapons on October 26, 2012.
65.
Edwardo Madueña was not in possession of a weapon at
the time Adam Collins, Daniel Roberts & Dirk Alfano fired
their weapons on October 26, 2012.
66.
Nicholas Chavez was not in possession of a weapon at the time
Adam Collins, Daniel Roberts & Dirk Alfano fired their
weapons on October 26, 2012.
67.
Shanele Alvarado was not in possession of a weapon at the
time Adam Collins, Daniel Roberts & Dirk Alfano fired
their weapons on October 26, 2012.
68.
Robert Ruiz was not in possession of a weapon at the time
Adam Collins, Daniel Roberts & Dirk Alfano fired their
weapons on October 26, 2012.
69.
Ruben Molina did not fire any weapon at the police before he
was shot on October 26, 2012.
70.
Edwardo Madueña did not fire any weapon at the police
before he was shot on October 26, 2012.
71.
Nicholas Chavez did not fire any weapon at the police before
he was shot on October 26, 2012.
72.
Shanele Alvarado did not fire any weapon at the police on
October 26, 2012.
73.
Robert Ruiz did not fire any weapon at the police on October
26, 2012.
74.
Ruben Molina was shot in the head, left shoulder, left upper
arm, left upper back, left upper lip and left cheek.
75. The
Tulare County Sheriff Department Officers were charged with
the responsibility of searching the scene where the shooting
took place on October 26, 2012 for shell casings.
76. The
Tulare County Sheriffs searched for shell casings at the
scene where the shooting took place by visually looking for
shell casings and using a metal detector.
77.
There were no shell casings found inside Edwardo
Madueña’s vehicle by the Tulare County Sheriffs
involved in the search.
78. The
only shell casings found at the scene where the shooting took
place on October 26, 2012 were from the 40 caliber Sig Sauer
semi-automatic handguns shot by Adam Collins, Daniel Roberts
and Dirk Alfano.
79. The
Los Angeles County Coroner’s Office Forensic Science
Laboratories Division tested gunshot residue samples taken by
Tulare County Sheriff’s Department Officer Swanson from
Ruben Molina’s hands for gunshot residue and the
analysis revealed no gunshot residue particles were found on
samples taken of his right and left hands.
80. The
Los Angeles County Coroner’s Office Forensic Science
Laboratories Division tested gunshot residue samples taken by
Tulare County Sheriff’s Department Officer Swanson from
Edwardo Madueña’s hands for gunshot residue and
the analysis revealed no gunshot residue particles were found
on samples taken of his right and left hands.
81. The
Tulare County Sheriff’s office collected gunshot
residue kits from Nicholas Chavez, Robert Ruiz & Shanele
Alvarado, but the kits were never tested.
82.
Adam Collins did not use his vehicle’s spotlight to
either illuminate the interior of Edwardo
Madueña’s vehicle or to prevent the occupants
from observing the officer’s approach on foot on
October 26, 2012.
83.
Dirk Alfano did not use his vehicle’s spotlight to
either illuminate the interior of Edwardo
Madueña’s vehicle or to prevent the occupants
from observing the officer’s approach on foot October
26, 2012.
84.
Daniel Roberts did not use his vehicle’s spotlight to
either illuminate the interior of Edwardo
Madueña’s vehicle or to prevent the occupants
from observing the officer’s approach on foot October
26, 2012.
85.
Adam Collins did not use available cover before the first
shot was fired at the scene of the overturned Hyundai Sonata
on October 26, 2012.
86.
Daniel Roberts did not use available cover before the first
shot was fired at the scene of the overturned Hyundai Sonata
on October 26, 2012.
87.
Adam Collins did not maintain a position of advantage before
the first shot was fired at the scene of the overturned
Hyundai Sonata on October 26, 2012.
88.
Daniel Roberts did not maintain a position of advantage
before the first shot was fired at the scene of the
overturned Hyundai Sonata on October 26, 2012.
89. On
October 26, 2012, Adam Collins did not wait for back up
Visalia Police Officers to arrive at the scene before
approaching without cover, the overturned Hyundai Sonata on
foot.
90. On
October 26, 2012, Daniel Roberts did not wait for back up
Visalia Police Officers to arrive at the scene before
approaching without cover, the overturned Hyundai Sonata on
foot.
91. On
October 26, 2012, Dirk Alfano did not wait for back up
Visalia Police Officers to arrive at the scene before firing
his weapon at Nicholas Chavez.
92.
Adam Collins did not issue any commands to the driver or the
passengers of Edwardo Madueña’s vehicle before
firing his weapon on October 26, 2012.
93.
Dirk Alfano did not issue any commands to the driver or the
passengers of Edwardo Madueña’s vehicle before
firing his weapon on October 26, 2012.
94. The
only verbal warning Daniel Roberts issued was
“hands” or I’ll release my dog”
before firing his weapon on October 26, 2012.
95.
Adam Collins did not direct the driver or the occupants not
to move until instructed to on October 26, 2012.
96.
Daniel Roberts did not direct the driver or the occupants not
to move until instructed to on October 26, 2012.
97.
Dirk Alfano did not direct the driver or the occupants not to
move until instructed to on October 26, 2012.
98.
Adam Collins did not direct the driver or the occupants to
keep their hands in sight on October 26, 2012.
99.
Dirk Alfano did not direct the driver or the occupants to
keep their hands in sight on October 26, 2012.
100.
Adam Collins did not order the driver or the occupants to
exit the vehicle one at a time on October 26, 2012.
101.
Daniel Roberts did not order the driver or the occupants to
exit the vehicle one at a time on October 26, 2012.
102.
Dirk Alfano did not order the driver or the occupants to exit
the vehicle one at a time on October 26, 2012.
103.
Adam Collins did not order the driver or the occupants to
exit the vehicle slowly on October 26, 2012.
104.
Daniel Roberts did not order the driver or the occupants to
exit the vehicle slowly on October 26, 2012.
105.
Dirk Alfano did not order the driver or the occupants to exit
the vehicle slowly on October 26, 2012.
106.
Before any weapons were fired, Adam Collins exposed himself
to needless danger by approaching the overturned Hyundai
Sonata by foot.
107.
Before any weapons were fired, Daniel Roberts exposed himself
to needless danger by approaching the overturned Hyundai
Sonata by foot.
108.
When Adam Collins fired his weapon in the direction of
Edwardo Madueña’s vehicle after it had rolled
over, that presented an imminent threat of death or serious
bodily injury to the driver and passengers of the Hyundai
Sonata.
109.
When Dirk Alfano fired his weapon in the direction of Edwardo
Madueña’s vehicle after it had rolled over, that
presented an imminent threat of death or serious bodily
injury to the driver and passengers of the Hyundai Sonata.
110.
When Daniel Roberts fired his weapon in the direction of
Edwardo Madueña’s vehicle after it had rolled
over, that presented an imminent threat of death or serious
bodily injury to the driver and passengers of the Hyundai
Sonata.
111.
After the Hyundai Sonata crashed and overturned, the
passengers were not able to see through the front window of
the car before exiting.
112.
After Robert Ruiz crawled out of the overturned Hyundai
Sonata, he never did anything of a threatening nature so as
to cause Adam Collins to believe it was necessary to use
deadly force against Edwardo Madueña.
113.
After Robert Ruiz crawled out of the overturned Hyundai
Sonata, he never did anything of a threatening nature so as
to cause Daniel Roberts to believe it was necessary to use
deadly force against Edwardo Madueña.
114.
After Robert Ruiz crawled out of the overturned Hyundai
Sonata, he never did anything of a threatening nature so as
to cause Dirk Alfano to believe it was necessary to use
deadly force against Edwardo Madueña.
115.
After Nicholas Chavez crawled out of the overturned Hyundai
Sonata, he did nothing of a threatening nature so as to cause
Adam Collins to believe it was necessary to use deadly force
against Edwardo Madueña.
116.
After Nicholas Chavez crawled out of the overturned Hyundai
Sonata, he did nothing of a threatening nature so as to cause
Daniel Roberts to believe it was necessary to use deadly
force against Ruben Molina.
117.
Gunshot residue analysis revealed many characteristic
particles of gunshot residue in the interior passenger-side,
rear door of the Hyundai driven by Edwardo Madueña.
118.
Gunshot residue analysis revealed many characteristic
particles of gunshot residue in the interior passenger-side,
rear door of the Hyundai driven by Edwardo Madueña.
119. A
Colt .45 series 70 handgun was found underneath Ruben
Molina’s body.
120. A
CZ 97 9 mm Rugar pistol was containing a magazine with
thirteen (13) live rounds was found several feet away from
the Hyundai Sonata near Edwardo Madueña’s body.
121. A
magazine containing (17) live rounds of .308 rifle ammunition
was found inside the Hyundai Sonata.
122.
Edwardo Madueña was an active Norteno gang member on
October 26, 2012.
123.
Ruben Molina was an active Norteno gang member on October 26,
2012.
124.
Robert Ruiz was an active Norteno gang member on October 26,
2012.
125.
Ruben Molina was a convicted felon on October 26, 2012.
126.
Robert Ruiz was a convicted felon on October 26, 2012.
127.
Robert Ruiz had been convicted illegally selling firearms
prior to October 26, 2012.
128.
Expert testimony from Greg Stutchman establishes the sound of
2 gunshots before any Defendant police officer fired his
weapon.
129.
All of the shots fired by the police officers were from 40
caliber Sig Sauer Model P226 - semi automatic handguns.
130.
Peace Officers Standards and Training referred to as
“POST” is the standard for law enforcement
training in the State of California.
131.
The Visalia Police Department requires its officers to
successfully complete POST training.
V.
DISPUTED EVIDENTIARY ISSUES
A.
Plaintiffs’ Disputed Evidentiary Issues
1.
Plaintiffs anticipate objecting to any attempt by the defense
to introduce any evidence of gang affiliation of Ruben
Molina, Edwardo Madueña, Nicholas Chavez, Robert Ruiz
or Shanele Alvarado. Objections will be based Rules 401 and
403 of the Federal Rules of Evidence.
2.
Plaintiffs anticipate objecting to the introduction of any
evidence that Ruben Molina, Edwardo Madueña, or
Nicholas Chavez had body tattoos on or before the October 26,
2012 incident date. Objections will be based Rules 401 and
403 of the Federal Rules of Evidence.
3.
Plaintiffs anticipate objecting to any evidence that Ruben
Molina, Edwardo Madueña, Nicholas Chavez or Robert
Ruiz had a criminal record prior to the incident date of
October 26, 2012. Objections will be based Rules 401, 403 and
404(b)(1) of the Federal Rules of Evidence.
4.
Plaintiffs anticipate objecting to any evidence that
magazines with bullets were found inside the Hyundai Sonata
after the shooting incident was over. Objections will be
based Rules 401, 403 and 404(b)(1) of the Federal Rules
of Evidence.
5.
Plaintiffs anticipate objecting to the introduction of any
evidence that two handguns were found at the scene after the
shooting stopped based upon the lack of evidence that these
guns were fired on the date of the incident. Objections will
be based on Rules 401 and 403 of the Federal Rules of
Evidence.
6.
Plaintiffs anticipate objecting to any attempt by the defense
to introduce any written findings of the District
Attorney’s office for the City of Visalia with respect
to the propriety of the VPD officers Adam Collins, Dirk
Alfano or Daniel Roberts shooting in this case. Objections
will be based on Rules 401 and 403 of the Federal Rules
of Evidence.
7.
Plaintiffs anticipate objecting to any attempt by the defense
to introduce any other findings by the Visalia Police
Department or the Tulare County Sheriff’s Department,
with respect to the propriety of the shootings by VPD
Officers Adam Collins, Daniel Roberts or Dirk Alfano.
Objections will be based on Rules 401 and 403 of the
Federal Rules of Evidence.
8.
Plaintiffs anticipate objecting to any evidence that Edwardo
Madueña and Ruben Molina had traces of marijuana in
their system referenced in their autopsy reports. Objections
will be based on Rules 401 and 403 of the Federal Rules
of Evidence.
Expert
Opinions of Joe Callanan:
9.
Plaintiffs believe that the majority of opinions set forth in
his FRCP Rule 26 Report are not admissible.
The
following Summary of Expert Opinions numbered in Mr.
Callanan’s report beginning at page 31 will be objected
to either in whole, or in part: 20.01, 20.02, 30.03, 20.05,
20.07, 20.08, 20.11, 20.12, 20.13, 20.14, 20.15, 20.16,
20.17, 20.18, 20.19, 20.20, 20.21, 20.22, 20.24, 20.25,
20.26, 20.27, 20.28, 20.29 and 20.30. Objections to these
opinions will be based on the following grounds to wit:
A. Opinions are rendered on an ultimate issue. Federal
Rules of Evidence 704.
B. Opinions are conclusions of fact which the jury should
decide and are not based on specialized knowledge that will
assist the jury in understanding the case. Federal Rules
of Evidence 702.
C. Opinions contain statements of law which the jury will be
instructed on. Federal Rules of Evidence 403.
Plaintiffs
intend to address their objections to the previously
referenced opinions in motions in limine.
Expert
Opinion of Gregg Stutchman:
10. Mr.
Stutchman’s Rule 26 Report states that he intends to
render an expert opinion that two (2) sounds he hears on the
dash cam audio tape from officer Daniel Roberts patrol care
are gunshots. Further, he intends to testify that these two
gunshots are not from guns fired by either Adam Collins,
Daniel Roberts or Dirk Alfano. The implication is that these
two gunshots had to come from some passengers in the
overturned Hyundai Sonata.
Plaintiffs
intend to bring a motion in limine to preclude his testimony
based on a Daubert challenge. According to
plaintiffs there appears to be no scientific evidence to
support the conclusions Mr. Stutchman’s reaches that
the first two sounds are gunshots. Moreover, according to
plaintiffs, there is no scientific evidence supporting
Stutchman’s opinion rendered as a “critical
listening” expert, trained to listen for gunshot
sounds. A motion in limine will be brought by plaintiffs
seeking to preclude from admission into evidence of
Stutchman’s opinion that the first two sounds heard are
gunshots, and secondly, that the alleged gunshots could not
have been fired by any police officers involved in the
shooting in this case. The objections will also be based on
Rule 702(a) through (d) of Federal Rules of
Evidence.
Expert
Opinion of Kris Mohandie, Ph.D.:
11. Mr.
Mohandie is a licensed psychologist who specialized in police
officer involved shooting cases. In his Rule 26 Report he
states he will render the following opinion:
It is expected, normal, and reasonable that the responding
officers, under the totality of circumstances and the highly
stressful nature of this particular event, perceived danger
and an immediate threat from the suspects. Indeed the
totality of the circumstances the officers were subjected to,
were more than sufficient to induce a profound
psychophysiological fear response. The normal and expected
reaction would be for the officers to respond as they did,
with behaviors designed to reduce the perceived threat.
Plaintiffs object to this opinion on the grounds that it is
an opinion on an ultimate issue and should be precluded on
the basis of Rules 704 and 702 of the Federal Rules of
Evidence. Plaintiffs intend to address this objection
through a motion in limine.
Expert
Opinion of George Williams:
12. Mr.
Williams is an expert in police shooting cases. His Rule 26
Report renders opinions that are duplicative of opinions
rendered by defense expert, Joe Callanan. Plaintiffs will
object to any and all such duplicative expert opinions.
At page
6 of Mr. Williams’ report, paragraphs 3 through page 7,
line 24, he sets forth the opinions he intends to offer at
trial.
Plaintiffs
intend to object to portions of each opinion set forth in the
aforementioned section of Mr. Williams’ report pursuant
to Federal Rules of Evidence, Rules 702(a) and 704.
B.
Defendants’ disputed factual issues
1.
Defendants will object to the introduction of evidence
regarding the car chase that preceded the deaths of Messrs.
Molina and Madueña. Plaintiffs expressly deny that
their suit is based on the chase, but insist that the chase
is relevant because it leads to liability. This will be the
subject of objection by defense motion in limine under
Federal Rules of Evidence, Rules 401, 403, &
405.
Evidence
re: Nicholas Chavez
2.
Defendants will object to the introduction of evidence that
Nicholas Chavez was shot, that he sued the City, or that his
case settled as immaterial. Defendants will object by motion
in limine under Federal Rules of Evidence 401, 403,
and 405.
Expert
Opinions Not Timely Served:
3. One
of plaintiffs’ experts, Tamorah Hunt, served a Rule 26
report two months after it was due. Defendants will object by
motion in limine to expert opinions from expert reports not
timely served under Federal Rules of Civil Procedure
26 & 37.
Expert
Opinion of Roger Clark:
4.
Defendants will object to Roger Clark testifying to matters
not stated in his expert opinion. Defendants will object by
motion in limine under Federal Rules of Evidence
401, 403, 701-703; Federal Rules of Civil Procedure
26 & 37.
Cumulative,
inflammatory photographic evidence
5.
Defendants will object by motion in limine to
plaintiffs’ proposed presentation to jurors of
...