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McNally v. Riis

United States District Court, S.D. California

January 14, 2020

GREGORY S. MCNALLY, Plaintiff,
v.
DANIEL RIIS, Defendant.

          ORDER ON MOTIONS IN LIMINE (ECF Nos. 44, 45, 46, 47, 48, 49, 50, 51, 52)

          Hon. Janis L. Sammartino United States District Judge

         Presently 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 follows.

         LEGAL STANDARD

         “Although 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 Cir. 1999).

         ANALYSIS

         I. Plaintiff's First Motion in Limine

         In his 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.

         A. History of Alcohol Consumption

         Plaintiff 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.

         While 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.

         Here, 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.

         B. Drug Consumption

         Plaintiff 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.

         Here, 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.

         The 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 was intoxicated.

         On the 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.

         In sum, the Court GRANTS Plaintiff's First Motion in Limine (ECF No. 44) in its entirety.

         II. Plaintiff's Second Motion in Limine

         Plaintiff 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.

         A. Expert Testimony on Defendant's Subjective Perception and State of Mind

         Plaintiff 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 ...


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