Carr v. County of San Diego

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 WILLIAM CARR, Case No.: 19-CV-1139 JLS (MDD) 12 Plaintiff, ORDER: (1) VACATING JUNE 16, 13 v. 2022 HEARING; (2) GRANTING IN PART AND DENYING IN PART 14 COUNTY OF SAN DIEGO; JEFFREY MOTIONS IN LIMINE AND CHU; JOSEPH MCMANUS; 15 GRANTING DEFENDANTS’ CHRISTOPHER CADIGAN; JASON ACCOMPANYING MOTION TO 16 FERGUSON; ALEXANDER SOLIMAN; SEAL; AND (3) SETTING STATUS and DOES 1–10, inclusive, 17 CONFERENCE Defendants. [18] (ECF Nos. 93–101) [19] 20 Presently before the Court are Plaintiff William Carr’s and Defendants County of 21 San Diego, Jeffrey Chu, Joseph McManus, Christopher Cadigan, Jason Ferguson, and 22 Alexander Soliman’s (collectively, “Defendants”) Motions in Limine (“MILs,” ECF Nos. 23 94–101). Also before the Court is Defendants’ Motion to Seal (“Mot. to Seal,” ECF No. 24 93). The Court finds these matters to be amenable to decision on the papers without oral 25 argument and accordingly VACATES the hearing scheduled for June 16, 2022. Having 26 considered the Parties’ arguments and the applicable law, the Court GRANTS IN PART 27 AND DENIES IN PART the Parties’ MILs, as discussed below, and GRANTS 28 Defendants’ accompanying Motion to Seal. However, the Court emphasizes that, given 1 the nature of motions in limine, the Court’s rulings are necessarily tentative and may be 2 revisited during trial. See United States v. Bensimon, 172 F.3d 1121, 1127 (9th Cir. 1999) 3 (“The district court may change its ruling at trial because testimony may bring facts to the 4 district court’s attention that it did not anticipate at the time of its initial ruling.”). 5 BACKGROUND 6 Plaintiff, a Type 1 diabetic, brings this civil rights action against the County of San 7 Diego and five individual Defendants employed by the San Diego Sheriff’s Department, 8 asserting claims arising out of his arrest and detention on July 15, 2018, both within and 9 outside of the East Village Asian Diner. See generally ECF No. 33. The Court granted 10 summary judgment in Defendants’ favor as to Plaintiff’s claim for unlawful detention and 11 arrest but otherwise denied their summary judgment motion. See ECF No. 72. 12 A Final Pretrial Conference was held on February 24, 2022, and trial is scheduled to 13 begin on September 19, 2022. See ECF No. 89. In the interim, the Court set a deadline 14 for the filing of the instant motions in limine. See ECF Nos. 94 –101. The Parties further 15 jointly moved to bifurcate the trial into two phases, with the first phase to decide liability, 16 compensatory damages, and Plaintiff’s entitlement to punitive damages, and the second 17 phase, if needed, to determine the amount of punitive damages and Defendants’ ability to 18 pay, see ECF No. 91, which motion this Court has granted, see ECF No. 92. 19 PLAINTIFF’S MOTIONS IN LIMINE 20 I. Motion in Limine No. 1 (Exclude Evidence of Prior Adverse Medical Events) 21 Plaintiff’s first motion in limine seeks to exclude evidence of Plaintiff’s prior adverse 22 medical events, including hundreds of pages of Plaintiff’s medical records predating the 23 incident, as well as testimony from two of Plaintiff’s physicians and Defendants’ 24 endocrinologist expert witness, who Defendants seek to offer “for the purpose of presenting 25 [Plaintiff]’s ‘history and management of diabetes.’” ECF No. 100 at 6. In particular, 26 Defendants seek to introduce evidence of three prior events in 2015 and 2016 when medics 27 and/or emergency personnel were summoned in response to Plaintiff’s low blood sugar 28 incidents. Id. Defendants’ endocrinologist, Dr. Kristen M. Kulasa, M.D., extrapolates 1 from these incidents that Plaintiff suffered from hypoglycemic unawareness, and that 2 Plaintiff’s unspecific symptoms coupled with his lack of medical ID would have been 3 impossible to differentiate from other causes of altered mental state such as intoxication. 4 Id. at 7. 5 Plaintiff argues that exclusion is appropriate under Federal Rule of Evidence 403, as 6 the probative value of the medical evidence is extremely limited given that the Parties have 7 already stipulated to the fact that Defendants did not know that Plaintiff was suffering from 8 a diabetic emergency at the time of his arrest inside the restaurant. Id. at 8–9. Meanwhile, 9 Plaintiff contends that the evidence presents a high danger of unfair prejudice, confusion 10 of the issues, and wasted time. While Plaintiff’s management of his diabetes on the day of 11 the incident is relevant and admissible, evidence of years-old events would serve only to 12 “inflame the jury” by showing that Plaintiff had yelled at first responders and crashed a 13 vehicle during a low blood sugar episode after drinking alcohol. Id. at 9. Plaintiff 14 alternatively contends that the evidence should be excluded under Federal Rule of 15 Evidence 404 given that three low blood sugar episodes years prior to the incident are 16 insufficient evidence of a habit of mismanagement of Plaintiff’s diabetes. Id. at 10–11. 17 Defendants oppose Plaintiff’s motion and argue that the evidence in question is 18 admissible under Federal Rule of Evidence 401, as Plaintiff’s past hypoglycemic events 19 put him on notice that he needed to exercise more care in managing his diabetes and follow 20 the advice of his medical providers to wear a medical ID bracelet and have short-acting 21 glucose on hand, which he did not do on the date of the incident. See ECF No. 110 at 2– 22 3. Plaintiff’s failures were a contributing factor to Plaintiff’s injuries. Id. at 2. Defendants 23 also claim that the evidence is relevant to the issue of Plaintiff’s emotional distress damages 24 given that Plaintiff’s distress could be attributable to experiencing yet another low blood 25 sugar episode rather than a confrontation with Defendants. Id. at 3–4. Defendants note 26 that they do not intend to offer this testimony to establish Plaintiff’s character or habit, see 27 id. at 5 n.2, but they argue that Federal Rule of Evidence 403 does not merit exclusion 28 / / / 1 because the evidence is highly relevant and its probative value is not substantially 2 outweighed by the factors identified by Plaintiff. Id. at 4–5. 3 The Court GRANTS IN PART AND DENIES IN PART Plaintiff’s first motion. 4 On the one hand, the Court agrees that there is a significant danger of unfair prejudice to 5 Plaintiff if the details of his 2015 and 2016 prior hypoglycemic incidents are admitted, 6 which are likely to distract from the issues of this case. Further, Plaintiff’s medical history 7 is irrelevant to certain issues, like probable cause or Defendants’ entitlement to qualified 8 immunity. See Hernandez v. Hansell, No. 614CV1351ORL22DAB, 2016 WL 8943279 , 9 at *10 (M.D. Fla. July 11, 2016) (in rejecting, among other evidence, medical records and 10 suicide history in an excessive force case, holding that “[t]he relevant facts are only those 11 circumstances confronting and known by Deputy Davila at the time of the relevant 12 incident”), aff’d, 695 F. App’x 523 (11th Cir. 2017). On the other hand, the Court agrees 13 that Plaintiff’s history of hypoglycemic episodes is highly probative to Defendants’ 14 contributory negligence defense. See ECF No. 35 at 7–8; ECF No. 36 at 7–8. The 15 stipulation that Plaintiff was suffering from a diabetic emergency at the time of his arrest 16 is inadequate in this regard. The Court encourages the Parties to confer and propose a 17 stipulation resolving the issue of Plaintiff’s history of hypoglycemia. In the absence of 18 agreement, the Parties shall provide the Court with competing proposed stipulations. 19 As to testimony from Plaintiff’s doctors about his history and management of his 20 diabetes and their medical advice and testimony from Defendants’ endocrinologist about 21 Plaintiff’s possible hypoglycemic unawareness, the Court is disinclined at this time to 22 exclude such testimony, as it again seems highly probative to the issue of contributory 23 negligence and unlikely, at least facially, to be particularly prejudicial, confusing, or 24 wasteful of time. However, the Court believes, given the fact that this evidence is also 25 irrelevant to certain issues, that a limiting instruction is likely appropriate. Again, the Court 26 encourages the Parties to confer and propose a limiting instruction. To the extent the 27 Parties cannot agree, they shall provide the Court with competing proposed limiting 28 instructions. 1 II. Motion in Limine No. 2 (Exclude Improper Expert Testimony) 2 Plaintiff’s second motion in limine seeks to exclude testimony from Defendants’ 3 police procedures expert, Lt. Chris Cross, as to whether probable cause existed to arrest 4 Plaintiff for resisting or obstructing an officer. ECF No. 101 at 3. Plaintiff argues that 5 “[o]pinion testimony on the legal issue of probable cause is per se improper,” ECF No. 101 6 at 3 (citing Hunter v. Bryant, 502 U.S. 224 , 227–28 (1991)), and that is precisely the type 7 of testimony Lt. Cross will provide. Id. at 4 (“As the situation progressed, it is my opinion 8 that the arresting deputies had probable cause to believe Mr. Carr was in violation of PC 9 Section 148(a)(1).”) (quoting Ex. 1 (Cross Report) at 5) (emphasis omitted). Such 10 testimony essentially would “usurp[] the jury’s role.” Id. 11 Defendants agree that, to the extent this motion seeks only to exclude expert witness 12 testimony as to whether Defendants had probable cause to arrest Plaintiff for violation of 13 California Penal Code section 148, such opinion testimony should not be offered by experts 14 for either side. ECF No. 111 at 1. However, should Plaintiff’s motion extend to whether 15 Defendants’ actions were consistent with policies, training, and/or generally accepted 16 police practices, Defendants ask the Court to deny the motion on the basis that “[i]t is well 17 established that a police practices expert may testify regarding whether deputies’ conduct 18 comported with applicable policies and procedures,” and that such evidence “does not 19 amount to a legal conclusion.” Id. at 1–2 (citations omitted). 20 The Court GRANTS IN PART AND DENIES IN PART Plaintiff’s second 21 motion. As Defendants concede, opinion testimony as to whether Defendants had probable 22 cause to arrest Plaintiff for resisting or obstructing a police officer is an impermissible legal 23 conclusion. Accordingly, no expert in this matter—including Defendants’ police 24 procedures expert—may provide such an opinion. See McNally v. Riis, No. 18-CV-1150 25 JLS (AGS), 2020 WL 209141 , at *3 (S.D. Cal. Jan. 14, 2020) (“[E]xpert testimony 26 concerning probable cause is a legal issue and not the proper subject of expert testimony.”) 27 (citations omitted); Contreras v. Gonzalez, No. 118CV01101AWISKO, 2020 WL 28 6887743, at *3 (E.D. Cal. Nov. 24, 2020) (“[E]xperts may not opine, for example, on 1 whether there was probable cause for an arrest.”) (citations omitted). However, 2 Defendants’ expert may testify about police practices and procedures “and whether 3 [Defendants’] conduct was consistent or inconsistent with such guidelines.” Ramirez v. 4 City of Gilroy, No. 17-CV-00625-VKD, 2020 WL 1492704 , at *7 (N.D. Cal. Mar. 27, 5 2020); see also Smith v. City of Hemet, 394 F.3d 689, 703 (9th Cir. 2005) (en banc) (holding 6 that expert could testify as to, and jury could properly rely upon, evidence concerning 7 “whether the officers’ conduct comported with law enforcement standards”). 8 DEFENDANTS’ MOTIONS IN LIMINE 9 I. Motion in Limine No. 1 (Exclude Evidence of Unrelated Officer Complaints) 10 Defendants’ first motion in limine seeks to exclude the admission of evidence, 11 testimony, and arguments related to citizen complaints against one of the officer defendants 12 and internal investigations related thereto. ECF No. 94 at 1. Defendants produced internal 13 affairs records to Plaintiff during discovery, including documents relating to three citizen 14 complaints made against one of the named defendants in 2016, 2017, and 2019. Id. at 2. 15 Internal investigations of each complaint, conducted by the Sheriff’s Department, found 16 the complaints unsubstantiated or unfounded and exonerated the deputy in question. Id. 17 Defendants request that portions of this motion be filed under seal, as the information in 18 question is “confidential sensitive information that is statutorily-protected from public 19 disclosure.” Mot. to Seal at 2 (citing 5 U.S.C. §§ 552 (b)(6), (b)(7)). Defendants further 20 claim that “[d]istrict courts routinely seal publicly-filed documents containing information 21 related to internal affairs complaints and investigations.” Id. (citations omitted). Finally, 22 Defendants argue that the materials are subject to a stipulated protective order. Id. (citation 23 omitted). Plaintiff does not oppose the Motion to Seal. 24 As to the substance of their motion, Defendants argue that here, evidence related to 25 a deputy’s past misconduct and any action taken by the County to investigate and/or 26 discipline the deputy is irrelevant because Plaintiff asserts no Monell claim against the 27 County. ECF No. 94 at 2. Defendants further argue that even if the evidence was relevant, 28 it should be excluded under Federal Rule of Evidence 403. Defendants claim the risk of 1 unfair prejudice outweighs any probative value. Id. (citing Tan v. City & Cnty. of San 2 Francisco, No. C 08-01564 MEJ, 2010 WL 726985 , at *2 (N.D. Cal. Feb. 26, 2010)). 3 Defendants further argue that the evidence would confuse the issues and mislead the jury 4 because unsubstantiated complaints are not probative to whether the deputy in question 5 used excessive force against Plaintiff in this matter. Id. at 3–4 (citations omitted). Finally, 6 Defendants claim that permitting the evidence would lead to a “trial within a trial” that 7 would unnecessarily lengthen the trial proceedings here. Id. at 3. Alternatively, 8 Defendants claim the evidence should be precluded under Federal Rule of Evidence 404 9 as improper character evidence. Id. at 4. 10 Plaintiff responds that “[he] does not intend to present any such evidence, testimony, 11 or arguments.” ECF No. 105 at 1. Nonetheless, “if Defendants or their counsel open the 12 door with testimony or arguments creating a false impression that Defendants have never 13 engaged in excessive force or false statements, then Plaintiff reserves the right to seek leave 14 of the Court to use the Defendant Deputy’s citizen complaints and internal affairs 15 investigations for impeachment purposes.” Id. 16 In light of Plaintiff’s representations that he will not affirmatively offer such 17 evidence, the issue is moot. Accordingly, the Court DENIES AS MOOT Defendants’ 18 motion. Further, given both the irrelevance of the evidence in question due to Plaintiff’s 19 representations and Defendants’ compelling privacy interest therein, the Court finds that 20 sealing the unredacted motion (ECF No. 94) is appropriate. See Pryor v. City of Clearlake, 21 No. C 11-0954 CW, 2012 WL 3276992 , at *3 (N.D. Cal. Aug. 9, 2012) (sealing internal 22 affairs investigations and complaints not probative to section 1983 case). The Court also 23 finds it noteworthy that Plaintiff does not oppose the request. Accordingly, the Court 24 GRANTS Defendants’ accompanying motion to seal. 25 II. Motion in Limine No. 2 (Exclude Lay Testimony Regarding Diagnoses/Injuries) 26 Defendants’ second motion in limine seeks to preclude Plaintiff from providing lay 27 opinion testimony about (1) diagnosis of any medical or mental health condition resulting 28 from the incident; (2) causation of injuries requiring specialized medical knowledge; and 1 (3) the worsening of any pre-existing medical or mental health conditions requiring 2 specialized medical knowledge. ECF No. 96 at 2. Specifically, Plaintiff claims to have 3 suffered headaches, head pain, back pain, wrist pain, shoulder pain, and abrasions to his 4 back because of the incident, and to have suffered severe emotional distress and 5 humiliation, but Plaintiff received no medical examination or treatment for his alleged 6 injuries and has not designated any expert on these issues. Id. 7 Defendants argue that the evidence should be precluded under Federal Rule of 8 Evidence 701. To the extent a medical or mental health condition would require a diagnosis 9 from a professional, Plaintiff and other lay witnesses should be precluded from labeling 10 Plaintiff’s alleged injuries. Id. at 3. To the extent that determining the cause of Plaintiff’s 11 injuries is beyond common experience, Plaintiff and other lay witnesses should be 12 precluded from providing opinions to that effect. Id. Defendants contend that Plaintiff and 13 other lay witnesses lack the specialized medical knowledge necessary to opine as to 14 whether the incident aggravated any preexisting conditions (for instance, that Plaintiff’s 15 shoulders slid out of place due to an old football injury). Id. 16 Plaintiff concedes that Rule 701 prohibits a lay witness from offering opinion 17 testimony based on specialized knowledge, but claims that “[t]his motion, if granted, would 18 prohibit usual and common communications regarding Plaintiff’s own perceptions of his 19 physical and emotional injuries.” ECF No. 106 at 1. To illustrate, “depressed” is a 20 psychiatric diagnosis in the medical community but means “sad” or “disappointed” to a 21 member of the general public; a jury can understand the difference between the two usages. 22 Id. at 1–2 (citing Farafaras v. Citizens Bank & Trust of Chicago, 433 F.3d 558, 563 (7th 23 Cir. 2006); Chalmers v. City of Los Angeles, 762 F.2d 753, 761 (9th Cir. 1985)). Thus, 24 Plaintiff and other lay witnesses can and should be allowed to describe their perceptions of 25 Plaintiff’s harm. Id. at 2. Plaintiff further argues that expert testimony as to causation is 26 not required if a layperson can make an informed judgment without such testimony. Id. at 27 2–3 (citing Baca v. State of California, No. C 13-02968 SBA, 2016 WL 234399 , at *8 28 (N.D. Cal. Jan. 20, 2016)). 1 The Court GRANTS IN PART AND DENIES IN PART Defendants’ second 2 motion. Specifically, “Plaintiff will be allowed to testify about his own medical conditions 3 that are within his own sensory perceptions; and Plaintiff, or any lay witness, will be 4 allowed to testify about any ‘opinions result[ing] from a process of reasoning familiar in 5 everyday life’ with respect to Plaintiff’s perceived medical or emotional state.” Brown v. 6 King Cnty., No. C16-1340 TSZ, 2021 WL 2156614 , at *2 (W.D. Wash. May 27, 2021) 7 (citing Fed. R. Evid. 701, 2000 Advisory Committee Notes; Cole v. United States, 327 F.2d 8 360, 361 (9th Cir. 1964); Fed. R. Evid. 702). This includes Plaintiff’s perceived cause of 9 the injuries of which he has direct perceptive knowledge. Mitchell v. Rosario, No. 2:0910 CV-03012-RCJ, 2015 WL 6706776 , at *2 (E.D. Cal. Nov. 2, 2015). Thus, Plaintiff is 11 permitted “to call lay witnesses who are direct witnesses to the emotional and mental 12 distress caused by Defendants . . . . Defendants can vigorously cross-examine 13 Plaintiff[’]s[] witnesses and object to particular questions at trial.” Dees v. Cnty. of San 14 Diego, No. 3:14-CV-0189-BEN-DHB, 2017 WL 168569 , at *8 (S.D. Cal. Jan. 17, 2017). 15 However, “as a lay witness [Plaintiff] cannot express a medical diagnosis or causation 16 unless it is within the usual and ordinary experience of a lay person. Similarly, [other 17 percipient witnesses] may testify as to what [they] observed with respect to Plaintiff’s 18 physical and mental condition, but [they] also may not express a medical diagnosis or 19 opinions on causation.” Lawson v. Lawson, No. 3:14-CV-00345-WGC, 2015 WL 20 5474763, at *2 (D. Nev. Sept. 17, 2015). With regard to the question of whether 21 Defendants’ actions aggravated any preexisting injuries, Plaintiff certainly is qualified to 22 speak about his personal perceptions of, for example, his levels of mobility and pain before 23 and after the accident. 24 III. Motion in Limine No. 3 (Preclude Statements Regarding Racial Prejudice) 25 Defendants’ third motion in limine seeks to preclude evidence, testimony, or 26 argument that Plaintiff’s race was a motivating factor in Plaintiff’s arrest or Defendants’ 27 / / / 28 / / / 1 use of force. ECF No. 97 at 2. During his deposition, Plaintiff revealed that he had been 2 interviewed on social media about the incident and suggested that the force used against 3 him and his ultimate arrest were based on his race. Id. 4 Defendants argue that testimony about race is irrelevant given that Plaintiff has not 5 asserted a racial discrimination or equal protection claim. Id. Defendants argue that no 6 evidence was unearthed during discovery to support a claim of racial animus. Id. Had 7 Plaintiff asserted such a claim, Defendants would have moved to dismiss it on summary 8 judgment as insufficiently supported by the record. Id. at 2–3. Defendants alternatively 9 argue that the testimony should be precluded under Federal Rule of Evidence 403, as such 10 testimony will confuse the issues and cause undue prejudice because it may lead the jury 11 to want to punish Defendants for their alleged racial bias rather than evaluate the relevant 12 facts and law. Id. at 3–4. 13 Plaintiff counters that “[his] race and experience as an African-American is an 14 integral component of the anguish, embarrassment, anxiety, and humiliation he suffered as 15 a result of the incident,” and thus “[t]he jury’s evaluation of his claim for damages will rest 16 heavily upon his testimony describing these emotional injuries.” ECF No. 107 at 1 (citation 17 omitted). 18 The Court agrees with Plaintiff that such evidence is potentially relevant in the 19 circumstances of this case. In rejecting a similar argument in a civil rights case against 20 police officers asserting claims for an illegal vehicle stop, an illegal search, and use of 21 excessive force, the Ninth Circuit reasoned: 22 The relevance of the subject of racial bias is readily apparent, for several reasons. First, proving the officers’ actions were racially [23] motivated could explain why they stopped the boys’ vehicle 24 without probable cause or reasonable suspicion and also why they used excessive force without cause. Establishing the [25] officers’ racial motivation tends to demonstrate why the 26 plaintiffs’ testimony, and not the officers’, should be deemed credible by the jurors. That is, it explains why the officers might [27] have lied about the events in question. Finally, racial bias was 28 important to proving the defendants[’] conduct was “malicious, 1 wanton or oppressive or in reckless disregard of the plaintiffs’ rights” which, according to the jury instructions, was necessary [2] to the receipt of punitive damages. The defendants’ argument 3 that race was introduced into this case improperly is without merit. [4] 5 Price v. Kramer, 200 F.3d 1237, 1251 (9th Cir. 2000); see also Seals v. Mitchell, No. CV 6 04-3764 NJV, 2011 WL 1399245 , at *13 (N.D. Cal. Apr. 13, 2011) (citing Price, 200 F.3d 7 at 1250–51). Courts in other jurisdictions have similarly permitted such evidence and 8 testimony, even where the plaintiff has not asserted a claim of race discrimination. See, 9 e.g., Carthans v. Jenkins, No. 04 C 4528, 2005 WL 8179040 , at *2 (N.D. Ill. Oct. 6, 2005) 10 (“Plaintiff’s complaint does not allege racial discrimination, but plaintiff makes clear that 11 he intends to show that defendants were motivated, at least in part, by plaintiff’s race and 12 the fact that Curro is a different race. Even absent a claim of race discrimination, such 13 evidence might be intended to support punitive damages for the claimed excessive force.”); 14 Porter v. Campbell, No. 12-2092, 2013 WL 2949141 , at *1 (C.D. Ill. June 14, 2013) (“The 15 Court agrees that evidence of racial slurs and bias is relevant to Defendant’s motivation 16 and to the reasonableness of his conduct and concludes that the probative value of this 17 evidence is not substantially outweighed by the danger of unfair prejudice to Defendant. 18 The Court is confident that counsel will be able to clarify for the jury that the issues in this 19 case relate to Defendant’s use of force and that the possible existence of racial bias or 20 discrimination per se is not at issue except to the extent it relates to the reasonableness of 21 the force.”). Accordingly, the Court DENIES Defendants’ third motion. The Court will 22 consider, as appropriate, a proposed limiting instruction on this issue. 23 IV. Motion in Limine No. 4 (Preclude Improper and Prejudicial Arguments) 24 Defendants’ fourth motion in limine seeks to preclude Plaintiff’s counsel from 25 making improper statements during his opening statement and his closing argument such 26 as asking the jury to “send a message,” asking the members of the jury to place themselves 27 in Plaintiff’s shoes, or commenting on his belief in the merits of Plaintiff’s case. ECF No. 28 98 at 2. Defendants note that Plaintiff’s counsel was counsel for the plaintiffs in another 1 case recently tried in this district (Gregory McNally v. Daniel Riis, 3:18-cv-1150-CAB2 AGS) in which similar statements were made during the closing argument. Id. 3 Defendants claim that, while “oratorical flourish” is permissible, the Ninth Circuit 4 does not allow counsel to urge jurors to use a verdict to send a message to the defendants 5 or protect community values. Id. at 3 (citations omitted). This is because such statements 6 impair a jury’s ability to consider the totality of the evidence fairly, particularly when 7 weighing the parties’ credibility is case determinative. Id. (citations omitted). It is also 8 improper, Defendants contend, to argue that finding for one party is in the jurors’ self9 interest. Id. at 4 (citations omitted). “Golden Rule” testimony inviting jurors to imagine 10 themselves in the plaintiff’s shoes is improper under Rule 403 because it has a tendency to 11 confuse the issues and impermissibly arouse the jurors’ sympathies. Id. at 4–5. Finally, 12 the ABA Model Rules prohibit statements alluding to a lawyer’s personal beliefs regarding 13 the merits of the case, but Plaintiff’s counsel made such prejudicial statements in McNally. 14 Id. at 6. 15 Plaintiff concedes that “‘Golden Rule’ arguments related to damages” should be 16 precluded, but argues that the remainder of Defendants’ motion should be denied. See ECF 17 No. 108 at 1. First, Plaintiff asserts that Defendants’ request to prevent Plaintiff from 18 urging the jury to “send a message” is contrary to binding Ninth Circuit precedent in cases 19 involving punitive damages. Id. (citations omitted). One of the purposes of punitive 20 damages is to punish and deter abuses of power. Id. at 2. And the purpose of deterring 21 and preventing such abuses is public safety. Id. To the extent the Court is inclined to rule 22 that discussion of public safety is not permissible, “[such a ruling] would have to apply to 23 both sides.” Id. Second, Plaintiff contends that broad preclusion of all types of “Golden 24 Rule” arguments is unwarranted given that Golden Rule arguments addressed to issues of 25 liability or the reasonableness of a party’s conduct are not necessarily improper. Id. at 3. 26 Plaintiff argues that “it is difficult to imagine how the jurors could assess liability based on 27 the reasonableness of the Defendants’ conduct in light of the facts and circumstances 28 known at the time without putting themselves in the shoes of the Defendants.” Id. (citation 1 omitted). Finally, Plaintiff argues that while prosecutors are not permitted to express their 2 opinions as to the merit of their cases or the credibility of witnesses, imposing such 3 constraints on a plaintiff’s counsel is unwarranted under both Ninth Circuit and California 4 law. Id. at 4 (citations omitted). 5 “[J]urors may be asked to place themselves in the shoes of a party with respect to 6 issues of liability.” Coachman v. Seattle Auto Mgmt. Inc., No. 17-187RSM, 2018 WL 7 4510067, at *5 (W.D. Wash. Sept. 20, 2018) (citation omitted). As to exhortations to “send 8 a message,” the Court agrees with Plaintiff that such argument is permissible when punitive 9 damages are at issue, as here. See Coachman, 2018 WL 4510067 , at *5 (“‘[C]onscience 10 of the community’ and ‘send a message’ arguments are appropriate in cases seeking 11 punitive damages.”) (citation omitted); Settlegoode v. Portland Pub. Sch., 371 F.3d 503 , 12 519 (9th Cir. 2004) (“Reminding the jury that they have the capacity to deter defendants 13 and others similarly situated is certainly legitimate where punitive damages are at stake.”). 14 Accordingly, Plaintiff may make such arguments consistent with the language of any 15 punitive damages instructions given to the jury. See Johnson v. City of Olympia, No. C1716 5403-MJP, 2018 WL 8918629 , at *1 (W.D. Wash. Oct. 12, 2018); see also Settlegoode, [17] 371 F.3d at 519 . 18 Finally, as to Plaintiff’s counsel expressing his beliefs as to the justness or strength 19 of his client’s claims, the Court notes that California Rule of Professional Conduct 3.4 does 20 not include a provision that parallels ABA Model Rule 3.4(e), on which Defendants rely 21 for their position. See ECF No. 98 at 4–5 (citing ABA Model Rule 3.4(e)). Indeed, in the 22 Executive Summary of New Rule of Professional Conduct 3.4, the Commission for the 23 Revision of the Rules of Professional Conduct (the “Commission”) noted that it was 24 “rejecting several provisions of Model Rule 3.4,” including paragraph (e), “as vague and 25 overbroad, and likely to chill legitimate advocacy.” See Executive Summary, New Rule 26 of Professional Conduct 3.4, available at https://www.calbar.ca.gov/Portals/0/documents/ 27 rules/Rule_3.4-Exec_Summary-Redline.pdf at 2. Specifically, the Commission found that 28 the rejected paragraphs “conflict with California law, are overbroad and likely to chill 1 legitimate advocacy, or both.” Id. (footnote omitted). Accordingly, the Court is disinclined 2 to bar Plaintiff’s counsel from making such statements at this time. 3 Thus, the Court GRANTS IN PART AND DENIES IN PART Defendants’ fourth 4 motion. Plaintiff shall not make Golden Rule statements related to damages; however, for 5 purposes of issues of liability, both Parties are permitted to invite jurors to put themselves 6 in the Parties’ shoes. Plaintiff may advance appropriate arguments about deterrence or 7 sending a message to Defendants as related to the issue of punitive damages. Finally, the 8 Court declines to bar Plaintiff’s counsel from expressing his personal opinions concerning 9 his client’s case. 10 V. Motion in Limine No. 5 to (Preclude Dismissal of Charges Against Plaintiff) 11 Defendants’ fifth motion in limine seeks to preclude evidence, testimony, and 12 argument that the District Attorney declined to pursue criminal charges against Plaintiff 13 after the incident. ECF No. 99 at 1. Defendants urge that evidence of a prosecutor’s 14 decision not to charge a plaintiff is irrelevant to the defendants’ conduct at the time of the 15 incident. Id. (citation omitted). Further, they argue that such evidence is inadmissible 16 under Rule 403, as any probative value is outweighed by unfair prejudice to Defendants 17 and the risk of juror confusion. Id. at 1–2 (citations omitted). 18 In response, Plaintiff argues: 19 Given that it is completely beyond dispute that [Plaintiff] was not prosecuted or convicted of the crimes alleged by Defendants, [20] there is no probative value to keeping the jury in the dark about 21 these facts; yet there is a substantial danger of unfair prejudice to Plaintiff if the jury is left to believe that he was prosecuted and [22] convicted after Defendants issued him the Notice to Appear for 23 two crimes. 24 ECF No. 109 at 2. Further, Plaintiff claims this evidence is relevant to the issue of 25 Plaintiff’s request for emotional distress damages, given that Plaintiff’s stress and worry 26 about whether he was going to be criminally charged only subsided two months after the 27 arrest, when he was informed that the charges would not be pursued. Id. at 3. Plaintiff 28 argues that this evidence would not be unduly prejudicial under Federal Rule of Evidence 1 because “[i]t would be clear to the jurors that this evidence was being admitted on the 2 ||issue of damages only, and that the rejection of the criminal charges would not be relevant 3 the issue of probable cause for Plaintiff's arrest,” and a limiting instruction could be 4 ||used to address any concern in this regard. /d. (citing McNally, 2020 WL 209141 , at *105 6 “The Court finds merit in Plaintiff]’ ]s argument that excluding all dismissal evidence 7 unfairly prejudicial to [his] case.” Cardinal v. Buchnoff, No. 06CV0072-MMA BLM, 8 |} 2010 WL 3339509 , at *3 (S.D. Cal. Aug. 23, 2010). “[E]xcluding dismissal evidence 9 || allows the jury to speculate that [Plaintiff] was guilty of interfering with the performance 10 ||of an officer’s duties, an assumption that directly prejudices Plaintiff]’|s[] □ □ □ use of 11 || excessive force claim|[].” /d. (footnote omitted). Further, as argued by Plaintiff, “Plaintiff 12 ||seeks to introduce this evidence as it relates to the issue of damages, specifically □□□□□□□□□□ 13 |}emotional distress. The fact that the charges were declined is also relevant ‘because it tends 14 || to show that [Plaintiff] was subject to this distress unnecessarily or without justification.”” 15 || McNally, 2020 WL 209141 , at *6 (citations omitted). Accordingly, the Court finds that 16 ||the probative value of this evidence outweighs the potential prejudice and DENIES 17 Defendants’ fifth motion. Again, the Court will consider, as appropriate, a proposed 18 || limiting instruction concerning this issue. 19 CONCLUSION 20 In light of the foregoing, the Court VACATES the June 16, 2022 hearing in the 21 ||above-named matter; GRANTS IN PART AND DENIES IN PART the Parties’ Motions 22 ||in Limine (ECF Nos. 94-101), as set forth above; and GRANTS Defendants’ Motion to 23 (ECF No. 93). The Court further SETS a status conference for August 11, 2022, at 24 || 1:30 p.m., to discuss the trial scheduled in this matter. 25 IT IS SO ORDERED. 26 || Dated: June 15, 2022 . tt 27 pon Janis L. Sammartino 28 United States District Judge te