Opinion
No. 2:13-CV-0320-KJM-KJN
01-22-2015
ERIKA GREGORY and LOREN MOLLNER, Plaintiffs, v. CITY OF VALLEJO, former VPD CHIEF ROBERT NICHELINI, VPD OFFICER CHASE CALHOUN, et al., Defendants.
ORDER
Defendants' motion in limine number four is currently pending before the court. (ECF No. 70.) Plaintiffs oppose the motion (ECF No. 77), and defendants have replied (ECF No. 81). To assist the parties in trial preparation, the court's tentative rulings on the issues raised by this motion follow.
I. Late Responses to Service Calls
The court grants defendants' motion to the extent it seeks to exclude evidence of any habit based on Officer Calhoun's past late responses to service calls. Fed. R. Evid. 406. However, because it is undisputed Officer Calhoun was late in responding to the service call in this case, nothing prevents plaintiffs from arguing their theory of the case, that Calhoun's "state of mind may not have been focused on the call" because he was "rushing to [p]laintiff's residence after ignoring dispatch for over an hour . . . ." (ECF No. 77 at 8.)
The court denies defendants' motion to the extent they argue Calhoun's delayed response is irrelevant. The reasonableness inquiry in which the jury will engage is an objective one. See Brigham City, Utah v. Stuart, 547 U.S. 398, 404 (2006) ("An action is 'reasonable' under the Fourth Amendment, regardless of the individual officer's state of mind as long as the circumstances, viewed objectively, justify [the] action.'" (emphasis and brackets in original)). At the same time, Officer Calhoun's perceptions of the objective facts are relevant. See Rowland v. Perry, 41 F.3d 167, 172-73 (4th Cir. 1994) (in reviewing qualified immunity inquiry, noting an officer's "perceptions of the objective facts of the incident in question" are relevant). Officer Calhoun's late response is relevant to his perceptions of the facts in question because the delay may have affected those perceptions. Although a jury will have to make several inferences to get from any evidence of the late response to the consequential fact of an unfocused mind, the relevance standard is low and the judge's role is limited in applying it. Once properly instructed, it will be the jury's province to weigh the evidence and decide which side's theory of the case to believe.
II. Evidence of Termination/Circumstances Surrounding Termination
A. Cross-Examination
The court grants defendants' motion to the extent plaintiffs seek to cross-examine Officer Calhoun to elicit details of the sexual misconduct underlying his termination because those details are not relevant to the issues at trial and have a high likelihood of confusing the issues. See Fed. R. Evid. 401, 404. Plaintiffs, however, are not prohibited from asking Officer Calhoun questions probing his truthfulness in connection with his employment, given that his credibility will be critical to the jury's determination of the case. See Fed. R. Evid. 608(b); Nat'l Mgmt. Servs., Inc. v. Qwest Dex, Inc., 219 F. App'x 658, 659-60 (9th Cir. 2007) (affirming district court's permitting cross-examination of witness about acts underlying his bar disciplinary proceedings but excluding nature of the proceedings, the entities involved, and the penalties imposed); Lewy v. S. Pac. Transp. Co., 799 F.2d 1281, 1299 (9th Cir. 1986) (Rule 608(b) allows cross-examination on specific instances of conduct "that would be probative on the issue of [] credibility," but "the rule expressly authorizes courts to limit such questioning 'in [their] discretion.'" ); Stringer v. City of San Pablo, No. C 07-3544 CW (MEJ), 2009 WL 302616, at *2 (N.D. Cal. Feb. 6, 2009) ("a specific act of misconduct, offered to attack the witness' character for truthfulness, can be elicited only on cross-examination of the witness").
B. Impeachment
The court denies defendants' motion to the extent plaintiffs seek to use extrinsic evidence for purposes of impeachment by prior inconsistent statements under Federal Rule of Evidence 608. Courts may admit extrinsic evidence to impeach a witness if the evidence goes to witness's credibility. Smith v. California, 350 F. App'x 178, 180 (9th Cir. 2009) (not abuse of discretion to admit witness's inmate status reports because they were not being introduced to prove the truth of the matter asserted but rather to impeach witness's prior testimony that he was not a disruptive inmate); Ellis v. Navarro, No. C 07-5126 SBA PR, 2012 WL 3580284, at *7 (N.D. Cal. Aug. 17, 2012) ("the admissibility of extrinsic evidence offered 'for other grounds of impeachment (such as contradiction, prior inconsistent statement, bias and mental capacity)' is governed by Rules 402 and 403"). If extrinsic evidence contradicts Officer Calhoun's testimony, plaintiffs may use it for the sole purpose of impeachment.
C. Reputation/Opinion
The court denies defendant's motion to the extent plaintiffs seek to offer opinion or reputation evidence of Officer Calhoun's character for truthfulness. "A witness's credibility may be attacked or supported by testimony about the witness's reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character." Fed. R. Evid. 608(a). If plaintiffs can establish an adequate foundation for a witness's knowledge of Officer Calhoun's truthfulness or untruthfulness, that evidence is admissible under Rule 608(a). See United States v. Holt, 486 F.3d 997, 1002 (7th Cir. 2007) (noting, while it is within the trial court's discretion to prohibit cross-examination of a police officer as to whether he had been suspended to call into question his credibility, plaintiff "could have used Rule 608(a) and called a member of the department to testify directly about his opinions or reputation of [the credibility of the officer]."). Though a criminal case, the evidentiary principles in Holt have been applied in the civil context. See Junkert v. Massey, No. 06-3243, 2009 WL 1161654, at *4 (C.D. Ill. Apr. 24, 2009) (citing Holt with approval); Maples v. Vollmer, No. CIV 12-0294 JB/RHS, 2013 WL 1677104, at *10 (D.N.M. Mar. 31, 2013) (citing Holt with approval in a §1983 case).
However, Rule 608(a) may not be used as a vehicle for admitting specific bad acts. No witness may testify about the reasons for Officer Calhoun's termination, to the extent they qualify as specific acts governed by Rule 608(b). See Martin v. Jones, No. 09 C 1690, 2013 WL 3754017, at *6 (N.D. Ill. July 16, 2013) ("The limitations in [Rule 608(a)] to opinion and reputation evidence mean that a character witness cannot be used as a subterfuge for getting specific acts of untruthfulness in front of the jury.") (internal citations omitted); Behler v. Hanlon, 199 F.R.D. 553, 559 (D. Md. 2001) ("On direct examination, the character witness may give the basis for the opinion or reputation testimony, but may not testify as to specific acts.").
These tentative rulings assume that testimony does not open the door to allow questions they otherwise preclude. The court anticipates providing the jury with limiting instructions consistent with these rulings.
As the parties have been advised previously, each ruling on a motion in limine is made without prejudice and is subject to proper renewal, in whole or in part, during trial. If a party wishes to contest a pretrial ruling, it must do so through a proper motion or objection, or otherwise forfeit appeal on such grounds. See Fed. R. Evid. 103(a); Tennison v. Circus Circus Enters., Inc., 244 F.3d 684, 689 (9th Cir. 2001) ("Where a district court makes a tentative in limine ruling excluding evidence, the exclusion of that evidence may only be challenged on appeal if the aggrieved party attempts to offer such evidence at trial.") (alteration, citation and quotation omitted).
IT IS SO ORDERED. DATED: January 22, 2015.
/s/_________
UNITED STATES DISTRICT JUDGE