United States District Court, S.D. California
GREGORY S. MCNALLY, Plaintiff,
DANIEL RIIS, Defendant.
ORDER ON MOTIONS IN LIMINE (ECF Nos. 44, 45, 46, 47,
48, 49, 50, 51, 52)
Janis L. Sammartino United States District Judge
before the Court are Plaintiff Gregory McNally's Motions
in Limine (ECF Nos. 44-48). Also before the Court is
Defendant Daniel Riis' Motions in Limine (ECF
Nos. 49-52). Defendant filed responses to Plaintiff's
Motions in Limine, (ECF Nos. 64-68), and Plaintiff
likewise filed responses to Defendant's Motions in
Limine (ECF Nos. 69-72). The Court held oral argument on
January 9, 2020. See ECF No. 74. Having reviewed the
Parties' arguments and the law, the Court rules as
the Federal Rules of Evidence do not explicitly authorize
in limine rulings, the practice has developed
pursuant to the district court's inherent authority to
manage the course of trials.” Luce v. United
States, 469 U.S. 38, 41 n.4 (1984). “A motion in
limine is a procedural mechanism to limit in advance
testimony or evidence in a particular area.” United
States v. Heller, 551 F.3d 1108, 1111 (9th Cir. 2009).
“In the case of a jury trial, a court's ruling . .
. gives counsel advance notice of the scope of certain
evidence so that admissibility is settled before attempted
use of the evidence before the jury.” Id. at
1111-12. Any ruling on a motion in limine, however,
is necessarily tentative in nature; a “district court
may change its ruling at trial because testimony may bring
facts to the district court's attention that it did not
anticipate at the time of its initial ruling.”
United States v. Bensimon, 172 F.3d 1121, 1127 (9th
Plaintiff's First Motion in Limine
first Motion in Limine, ECF No. 44, Plaintiff seeks to
exclude evidence about his past alcohol consumption, ECF No.
44 at 4-5, as well as evidence that he consumed the
prescription drug Xanax on the day of the incident.
Id. at 5-6.
History of Alcohol Consumption
contends that evidence regarding his past alcohol consumption
is inadmissible under Federal Rules of Evidence 403 and 404.
Id. at 4-5. While Plaintiff does not dispute the
relevance or admissibility of evidence regarding his alcohol
consumption and intoxication on the night of the incident,
Plaintiff contends that evidence of his past alcohol
consumption is inadmissible character evidence under Rule
404, id. at 4, and would also fail Rule 403's
balancing test. Id. at 5. The Court agrees.
evidence of an “other act” used to show that on a
particular occasion the person acted in accordance with their
character is generally inadmissible, Fed.R.Evid. 404,
“[e]vidence of a person's habit may be admitted to
prove that on a particular occasion the person . . . acted in
accordance with the habit or routine practice.”
Fed.R.Evid. 406. “In deciding whether certain conduct
constitutes habit, courts consider three factors: (1) the
degree to which the conduct is reflexive or semi-automatic as
opposed to volitional; (2) the specificity or particularity
of the conduct; and (3) the regularity or numerosity of the
examples of the conduct.” United States v.
Angwin, 271 F.3d 786, 799 (9th Cir. 2001), overruled
on other grounds by United States v. Lopez, 484 F.3d
1186 (9th Cir. 2007) (en banc). The party attempting to
introduce the evidence has the burden of establishing that
the conduct qualifies as evidence of habit. Id.
Defendant has failed to meet his burden to show
Plaintiff's history of drinking constitutes evidence of
habit. Defendant offers insufficient evidence to show that
Plaintiff drinking to excess and becoming quiet and subdued
was “reflexive or semi-automatic” and achieved
the status of habit. See Fed. R. Evid. 406 advisory
committee notes (noting evidence of intemperate
“habits” is generally excluded when offered as
proof of drunkenness). Because the evidence does not
constitute habit, the Court finds it is inadmissible other
act evidence. See Fed. R. Evid. 404. And even if
Plaintiff's history of drinking alcohol did constitute
evidence of habit, the Court finds its probative value is
substantially outweighed by a danger of unfair prejudice.
contends that the evidence he consumed Xanax on day of the
incident has no probative value and is highly prejudicial
and, thus, inadmissible under Rule 403's balancing. ECF
No. 44 at 5-7. Plaintiff contends that the probative value of
evidence showing that Plaintiff consumed a Xanax pill
“at some unknown time that day is minimal, especially
in the absence of any toxicology test results reflecting the
presence of any Xanax in Plaintiff's body the evening of
the incident.” Id. at 6. Defendant contends
that there is a high probative value to Plaintiff's use
of Xanax because the use of the drug is highly probative as
to whether Plaintiff's intoxication was the reason he
failed to recognize the officers were actually police and
whether Plaintiff's intoxication led to his failure to
comply with the officers' commands. ECF No. 64 at 3.
the Court finds that the evidence of Plaintiff's Xanax
consumption should be excluded under Rule 403. On one end of
the scale, the Court finds the probative value of the alleged
Xanax use is low. The only evidence of Plaintiff's Xanax
use is a single notation in his medical report that he took a
2mg Xanax pill at some unspecified time. ECF No. 44 at 4.
Plaintiff testified he did not remember taking any Xanax the
night of the incident or reporting to anyone at the hospital
he took Xanax. Id. The evidence is therefore
speculative at best and could lead to a mini-trial on the
question of whether Plaintiff did or did not take the drug,
which would only serve to confuse the issues to the jury.
evidence's probative value is also low because Defendant
has not introduced expert testimony about how Xanax affects a
person of Plaintiff's stature and, importantly, how Xanax
reacts with alcohol. Defendant contends that he can point to
Plaintiff's past Xanax use to determine how Xanax
personally affected Plaintiff. But allowing Plaintiff's
prior use of the drug into evidence would not only be highly
prejudicial, but it would not be particularly probative of
how it affected him on the night of the incident because
Plaintiff did not testify he took Xanax in combination with
alcohol on the previous occasion. Without expert testimony on
the effects of the drug and without Plaintiff's testimony
about his personal experience taking the drug with
alcohol, the jury would be left to speculate how Xanax
and alcohol taken together may have affected Plaintiff's
ability to recognize officers and react to commands. The
probative value of Plaintiff's drug use is therefore
slight, especially because Defendant can introduce other,
uncontested evidence to show that Plaintiff drank alcohol and
other end of the scale, evidence of “[d]rug use is
‘highly prejudicial, '” United States v.
Carpenter, 923 F.3d 1172, 1182 (9th Cir. 2019) (holding
district abused its discretion by admitting evidence of drug
use despite its probative value as to the defendant's
state of mind and disproving duress defense), and
“could have a significant prejudicial effect upon the
jury's decision.” United States v.
Vizcarra-Martinez, 66 F.3d 1006, 1017 (9th Cir. 1995)
(internal quotations omitted). The Court therefore finds the
evidence's probative value is substantially outweighed by
its danger of unfair prejudice.
the Court GRANTS Plaintiff's First
Motion in Limine (ECF No. 44) in its entirety.
Plaintiff's Second Motion in Limine
moves to exclude the testimony of Defendant's police
procedures expert, Eric Daigle, as is relates to (1) the
subjective perception, state of mind, or intent of Defendant;
and (2) whether probable cause existed to arrest Plaintiff.
Expert Testimony on Defendant's Subjective Perception and
State of Mind
seeks to preclude testimony from Mr. Daigle regarding his
“opinions emphasizing the importance of Defendant's
subjective perception and state of mind before and during the
incident.” ECF No. 45 at 3. Plaintiff contends that
“Mr. Daigle's opinions go beyond the facts and
circumstances confronting a reasonable officer on the scene
and improperly focus on the manner the particular Defendant
subjectively perceived stimuli from the scene.”
Id. at 4. Defendant contends that his subjective