United States District Court, E.D. California
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE
in Limine Filing: 7/2817 Oppositions to Motions in Limine:
8/4/17 Hearing on Motions in Limine: 8/14/17 Trial
Submissions: 8/11/17 Jury trial: 8/21/2017 at 8:30 a.m., 4-5
Gonzalez asserts that Bakersfield police officers are liable
for violations of his civil rights and California law,
including wrongful detention or arrest, excessive force,
battery, negligence, and for violating California's Bane
Act. Defendants contend the actions taken were lawful and did
not violate Plaintiff's civil rights.
action includes causes of action pursuant to 42 U.S.C §
1983, and jurisdiction is based upon 28U.S.C §§
1331 and 1343. In addition, the events that gave rise to this
action occurred in Bakersfield, California. Accordingly,
venue is proper in the United States District Court for the
Eastern District of California sitting in Bakersfield.
See 28 U.S.C. § 1391.
parties demanded a jury trial in this matter. (Doc. 1 at 21;
Doc. 8 at 12)
Plaintiff's claims arise out of an incident that took
place in the City of Bakersfield, State of California, and
within this judicial district.
Plaintiff is suing in his individual capacity and seeks
Defendant Officers were acting under color of law within the
course and scope of their duties as officers for the City of
other facts in this case remain in dispute including but not
1. Whether the seizure of Plaintiff constituted a detention
or an arrest;
2. Whether, as either a detention or an arrest, the seizure
of Plaintiff was justified;
3. Whether Defendants Barrier, Knott, and/or Orozco used
excessive or unreasonable force;
4. Whether Defendant Barrier, Knott, and/or Orozco were
5. Whether each of the Defendants integrally participated in
or failed to intervene in the wrongful conduct of the others;
6. The nature and extent of Plaintiff's damages,
including economic and non-economic damages, both past and
7. Whether punitive damages should be imposed and, if so, the
8. Whether a statutory penalty should be imposed under the
9. Whether the Defendant Officers met to form a tactical plan
regarding their check the welfare of Arturo Gonzalez Jr.;
10. Whether the plaintiff came outside and followed Officer
instructions regarding walking backwards, keeping his hands
over his head, getting on his knees, etc.
11. Whether the Defendant Officers knew that Plaintiff was
not Arturo Gonzalez Jr. at the time of their first contact or
at what point they knew or should have known;
12. Whether Plaintiff was detained and/or arrested and if so,
whether such detainment and/or arrest was reasonable and
lawful and whether such detainment and/or arrest was
justified by probable cause;
13. Whether the use of force by each Officer Defendant was
reasonable and lawful;
14. Whether Defendant Carruesco failed to intervene and/or
was an integral participant in the detention/arrest and/or
the use of force;
15. Whether the plaintiff was harmed as a result of any
alleged detention, arrest, and/or use of force by Defendants
and the nature and extent of any such injuries;
16. Whether the conduct of each Officer Defendant was such as
to warrant the imposition of punitive damages;
17. Whether Defendant Officers are entitled to immunity under
federal and/or state law; and
18. Whether any of the other affirmative defenses raised by
Defendants in their Answer to the Operative Complaint act to
bar or limit liability and/or damages sought by Plaintiff in
DISPUTED LEGAL ISSUES
DISPUTED EVIDENTIARY ISSUES
parties intend to file motions in limine regarding the
evidence to be used at trial. Plaintiff intends to file
motions on the following subjects:
exclude all information not known to the officers at the time
of the incident, including all information about Plaintiff,
information about Plaintiff's son that was not actually
known to the officers at the time, and information
subsequently discovered or events that took place subsequent
to the incident;
exclude any reference to gangs or drugs;
exclude the 9-1-1 calls themselves, which the defendant
officers did not hear prior to the beating;
exclude allegations that Plaintiff's son stated that
“he was in possession of a grenade, a rocket launcher,
five friends and an AK-47;”
preclude or limit testimony about officers' subjective
states of mind, beliefs, or fears;
exclude references to Plaintiff's race, immigration
status, or his neighborhood, including both direct and
indirect appeals to prejudice, such as allegations that it is
a “gang neighborhood” or a “high-crime
area.” As to Plaintiff's race, counsel agree that
his race has no pertinence to the issues in the case.
Likewise, because Plaintiff does not seek damages for lost
wages, counsel agree that his immigration status. Thus, the
Court ORDERS that this evidence will not be
exclude certain opinions of Defendants' police practices
exclude certain opinions and testimony by Defendants'
medical expert; and
address the qualified immunity and comparative negligence
defenses, to establish how these defenses will (and will not)
be handled at trial and in front of the jury. To the extent
that qualified immunity is raised at trial, the immunity is a
question of law for the Court and this defense will not be
presented to the jury. If there are fact questions that must
be determined by the jury before qualified immunity may be
considered, either side may propose special interrogatories
for the jury to decide. If they choose to do so, they SHALL
file the special interrogatories to the jury at the same time
as their verdict form (as set forth below).
SPECIAL FACTUAL INFORMATION
Plaintiff's Special Factual Contentions:
date, place and general nature of the incident: This is
a civil rights and personal injury lawsuit involving a
videotaped seizure and beating of Arturo Gonzalez by the
defendant police officers. Plaintiff suffered serious
injuries to his back and shoulder.
officers claim that they charged, tackled, and beat Plaintiff
based on the mistaken belief that Plaintiff was his son, who
is also named Arturo Gonzalez. From Plaintiff's
perspective, it was an unprovoked attack on an innocent
disabled retiree who had come outside to try to help the
officers and who had done nothing wrong. Plaintiff contends
that the officers' alleged mistake as to his identity was
not reasonable, since he wore a gray beard, since he was
obviously not in his thirties, and since he told the officers
who he was. The officers were told over the radio that
Plaintiff's son was not home and that Plaintiff was
stepping out of the house. Even if the person the officers
encountered had been Plaintiff's son, there is no
justification for attacking and beating a person who is
cooperating and complying with all instructions. Plaintiff
contends that the seizure and beating of Plaintiff violated
Plaintiff's rights under state and federal law. The
incident took place at approximately 1:45-2:15 a.m. on
January 20, 2015 near 4800 Chinta Drive in Bakersfield.
particular acts, omissions, and conditions constituting the
basis for liability: The officers admit that they were
dispatched on a “check the welfare” call, which
means, in Defendant Barrier's words: “Check the
welfare is when there's an individual who appears to need
assistance due to some type of either mental disability or
physical disability or rambling and so forth.” The
officers were told that a person had called 9-1-1 and was
“rambling incoherently and not making much
sense.” The officers did not actually hear the call.
The caller's cellphone had been traced to an approximate
officers received information that the “subject should
be identified as Arturo Gonzalez, 4-7-82, ” indicating
a person who was in the area of 33 years old. The dispatched
officers were also transmitted information to the effect:
“Officer safety, this RP made 422 to ambush law
enforcement past date, ” meaning that the caller had
made past threats against the police (not on the night in
question). No other information was dispatched to the
officers about the caller.
officers briefly stopped at a nearby location to discuss a
“tactical plan.” One possible outcome the
officers considered was to take the caller into custody for
the purposes of mental health treatment. Obviously, one
reason why a person could call 9-1-1 and ramble is that the
person is mentally ill, and the officers considered that
possibility. The officers did not have any information that
any specific crime had occurred (they merely planned to
investigate to determine whether a crime had occurred). The
officers did not have any information that anyone was in
danger, other than possibly police officers or the caller. No
crime was committed on the day of the prior 9-1-1 calls.
officers' “tactical plan” consisted of the
following: “It's to approach quietly. [Orozco] and
Sergeant Carruesco would be on the south side and Barrier and
Knott would be on the north side.” That was the extent
of the “tactical plan.” There does not appear to
have been any plan formulated for a situation where the
subject surrendered or where an innocent third party exited
officers traveled to the location from which they believed
the call had been made, parked their vehicles along the
street, and approached the house on foot. Barrier attempted
to call the cellphone from which the 9-1-1 calls had been
made, but nobody answered.
Barrier contacted the dispatcher to ask the dispatcher to
call the land line at the house. The purpose of doing this
was to have the dispatcher tell the person in the house to
come outside. Barrier successfully made contact with the
dispatcher and asked the dispatcher to call the residence and
have someone come outside. Barrier stated, “Can you
confirm the address and locate a telephone number for this
subject?” The operator responded, “10-4.”
The dispatcher then called the landline, and Plaintiff picked
up the phone. Plaintiff has discovered a recording of that
phone call. The time was approximately 1:47 in the morning,
and Plaintiff was asleep. On the recording, the following can
Plaintiff: [Ringing] Hello.
Dispatcher: Hello, is Arturo there?
Plaintiff: Arturo who?
Dispatcher: Arturo Gonzalez?
Plaintiff: Senior? Yes.
Dispatcher: I'm looking for Junior.
Plaintiff: No, he's not in right now.
Dispatcher: He's not in right now?
Dispatcher: Um, is this the address that called police
recently, 4800 Chinta Drive?
Plaintiff: Well, this is Arturo's father. And this is,
um, 4800 Chinta Drive.
Dispatcher: Mmk. Ok. Arturo called us.
Dispatcher: And he was stating that - Sir, there are officers
outside, and they need somebody to come outside and talk to
Dispatcher: Can you go outside?
Plaintiff: I - I can, yes. It's going to be a little bit.
Dispatcher: All right. I'll let the officer know, ok?
Plaintiff: Ok, fine.
Dispatcher: Thank you sir. Bye-bye.
having made contact with Plaintiff, the dispatcher sent the
following audio transmission to Defendant Barrier: “5
North 1 [Barrier's call sign], I made contact with the
subject's father. He's advising he's not there;
however, he will step out and speak with police.” In
other words, the dispatcher told the officers that the person
they were looking for was not at home but that the
person's father (i.e., Plaintiff) would step outside and
talk to them. Plaintiff has discovered the audio recording of
this call as well as the written CAD (Computer Aided
Dispatch) entry of this call. Plaintiff has also
authenticated it via the testimony of the dispatcher as well
as of the City of Bakersfield's designee under Federal
Rule of Civil Procedure 30(b)(6). The officers claim they
never got the call.
Plaintiff came outside, Plaintiff was instructed to walk
backwards to the sound of the officer's voice. Plaintiff
complied with these commands within seconds. Barrier conceded
at his deposition that at that time, Plaintiff was submitting
to his authority. When officers asked Plaintiff who he was,
and he said, “This is Arturo Gonzalez Montes,
sir.” At that time, Plaintiff had a gray beard.
rest of the encounter is captured on video (which is
submitted herewith). Plaintiff is walking backwards with his
hands above his head, complying with the officers'
commands. Then he is ordered onto his knees, and he complies.
The officers claim that at this point, Plaintiff
“maneuvered his shoulder back and forth” in
“a strange manner” and “reached for his
waistband.” However, Plaintiff disputes this version of
events. Plaintiff merely lowers his right hand to touch the
ground for balance as he goes down to his knees. Then the
officers charge, tackle, and beat Plaintiff.
video, Defendant Barrier is the first to make contact with
Plaintiff. Barrier admits to applying force with his knee,
using a control hold, striking Plaintiff with his fist, and
applying his body weight. Barrier admits that he struck
Plaintiff as hard as he could with his knee. Barrier also
admits that he punched Plaintiff in the face as hard as he
could. Barrier also admits applying body weight to Plaintiff
for 60 seconds.
Defendant Orozco applied a control hold. Specifically,
Defendant Orozco applied a rear wrist lock to twist one of
Plaintiff's hands behind his back. Defendant Knott
applied body weight to Plaintiff's back. The officers
admit that Plaintiff never punched, kicked, or verbally
threatened the officers. Defendant Barrier never believed
that Plaintiff was trying to flee.
he was in handcuffs, Plaintiff complained of pain. Orozco
After taking Plaintiff into custody, the officers claim to
have realized their mistake. When asked, Plaintiff told the
officers that he had not seen or heard from his son, Arturo
Gonzalez Jr., in two days.
crime had been committed. However, even after Defendant
Barrier was told that Plaintiff was not the person they were
looking for, Defendant Barrier requested permission to arrest
Plaintiff. Defendant Barrier's request for permission to
arrest Plaintiff was denied.
though no crime had been committed and the officers knew that
Plaintiff was not the person they had been looking for,
Plaintiff remained in handcuffs. While in handcuffs, he was
placed in the back of a patrol car (causing excruciating pain
to his injured shoulder). The handcuffs were not unfastened
from behind his back until around the time the paramedics
arrived. Defendants acknowledge that the paramedics did not
arrive until 2:09, or 22 minutes after Plaintiff was ordered
out of his house. After the paramedics arrived, Plaintiff was
handcuffed to the gurney. The handcuffs were not removed
until Plaintiff arrived at the hospital.
particular acts, omissions or conditions constituting the
basis of any defense: Plaintiff contends that no
defenses are available based on the facts and circumstances
of the case.
age, injuries sustained, prior injuries, medical expenses and
estimated future medical expenses of claimant: Arturo
Gonzalez, age 64, suffered severe and lasting injuries to his
neck, lower back, and shoulders consisting, without
limitation, of post traumatic tendinosis with tears in the
left shoulder, post traumatic impingement syndrome in the
left shoulder, post traumatic tendinosis and impingement
syndrome in the right shoulder, post traumatic cervical disc
derangement and disc prolapse, post traumatic lumbar disc
derangement and disc prolapse with annular tears, headaches,
6th and 7th rib fractures, hip pain, knee pain, anxiety and
chest pain. His injuries required hospitalization and
long-term medical treatment. He continues to experience pain
and discomfort throughout his entire body, and his injuries
require ongoing medical care in the future, consisting,
without limitation, of epidural steroid injections and medial
branch nerve blocks in the spine, lumbar discogram, lumbar
radio frequency ablation, and left shoulder surgical
arthroscopy. Mr. Gonzalez has a history of low back pain, but
prior to this incident it was stable and did not require any
intervention. The past medical specials are $53, 468.41. The
future medical specials are as follows: $5, 000 to $6, 000
per injection for epidural steroid injections. He will likely
need a total of six injections in the future. The estimated
cost for the left shoulder arthroscopic surgery is $30, 000
to $40, 000. The estimated cost for the lumbar radio
frequency ablation is $8, 000 to $10, 000 and he will likely
require two of these in the future. The total estimated costs
for future medical care are $76, 000 to $96, 000.
Defendant's Special Factual Contentions:
January 20, 2015 at approximately 1:15 a.m., Bakersfield
Police Officers Douglas Barrier, Kasey Knott, Juan Orozco,
and Sergeant Gary Carruesco were dispatched to 4800 Chinta
Drive in Bakersfield, California to “check the
welfare” of an individual who had made prior threats to
kill law enforcement. Prior to their arrival, Bakersfield
Police Officer Douglas Barrier was provided with additional
details regarding the criminal threats and the suspect by the
Bakersfield Communication Center. Officer Barrier was also
advised that the subject's name was Arturo Gonzalez, his
date of birth was April 7, 1982, and that there was an
outstanding warrant for his arrest. In addition, Officer
Barrier accessed information about prior calls for service at
the Chinta Drive address including the fact that on January
18, 2015, Arturo Gonzalez made multiple calls saying things
like “I got my shotgun and I'm gonna kill the
cops!”, that he was in possession of a 12 gauge shotgun
and if Officers arrive at his residence, he will “be
hiding in the dark to ambush” responding Officers, that
he was in possession of a grenade, a rocket launcher, five
friends and an AK-47. Officer Barrier also learned that
Arturo Gonzalez had a prior arrest for assault with a deadly
weapon in 2007 and criminal threats in 2009.
to going to the residence, the four Officers parked and met
at the intersection of Ambrister Drive and Stine Road to form
a tactical plan. Officer Barrier relayed the information he
had learned through his records check including providing
information regarding the previous calls by Arturo Gonzalez
Jr. regarding the threats to police officers, and the fact
that Arturo Gonzalez Jr. had a warrant for his arrest.
Officers proceeded to 4800 Chinta Drive on foot, utilizing
vehicles for cover. Upon arrival, Officer Barrier attempted
to call the cell phone number associated with the calls that
had been made on January 18, 2015; however, no one answered.
At that point, Officer Barrier contacted the Communications
Center to ask if they would contact the reporting party and
have the subject step outside the residence. Officer Barrier
also asked if the Communication Center could attempt to
locate a land-line associated with 4800 Chinta Drive and make
approximately 1:50 a.m., a male subject exited the residence
wearing baggy clothing, a hooded sweatshirt and a beanie.
Officer Barrier was concerned that the subject's hands
were concealed. Officer Barrier proceeded to shine his
flashlight on the male subject announcing “Bakersfield
Police Department”. Officer Barrier then called out:
“Arturo Gonzalez, take your hands out of your
pockets.” Mr. Gonzalez acknowledged Officer Barrier and
the Officers believed that the ...