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Media Alerts - Diaz v. City of Anaheim
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October 27, 2016
  Diaz v. City of Anaheim
Headline: The Ninth Circuit held that the district court erred by not bifurcating the liability and damages phases of a trial involving allegations of excessive force by police and by admitting inflammatory gang affiliation evidence on the question of liability.

Areas of Law: Civil Rights, Civil Procedure, Evidence

Issues Presented: Whether the district court erred in not bifurcating the liability and damages phases of a trial involving alleged excessive force by the police and allowing the jury to hear prejudicial gang affiliation evidence on the question of liability.

Brief Summary: The Ninth Circuit panel reversed the decision of the district court and remanded the case for a new trial. Inflammatory evidence of gang membership was irrelevant to the question of whether the police used excessive force. The district court erred by not bifurcating the liability and damages phases of the trial and admitting gang membership evidence on the question of liability. As to the excessive force claim, the Ninth Circuit panel affirmed the district court's decision to deny Plaintiffs' motion for judgment as a matter of law.

Extended Summary: City of Anaheim Police Officer Nicholas Bennallack ("Bennallack") shot and killed Manuel Diaz ("Diaz") after a foot pursuit in gang territory in the city. Bennallack testified he shot Diaz because he believed Diaz had a gun and was ready to fire. Other witnesses disagreed about Diaz's movements. Although officers found a cell phone and narcotics pipe nearby Diaz, no firearm was recovered at the scene. Diaz died a short time later.

Diaz's estate and his mother ("Plaintiffs") sued the City of Anaheim and Bennallack for non-economic damages under 42 U.S.C. ยง 1983, claiming for excessive force, unlawful detention under the Fourteenth Amendment, and battery.

Before the trial, the district court ruled on a number of motions in limine relating to Diaz's gang affiliation as to the issue of liability. The court excluded photographs of Diaz's gang tattoos, but noted that it would revisit the admissibility issue if Diaz's mother testified that she had no knowledge of his gang affiliation. The court also decided a gang expert could testify as to Diaz's gang membership, but only relevant as to damages. It excluded unduly prejudicial testimony about gang activities in general and Diaz's specific gang activities.

Plaintiffs moved to bifurcate the liability phase from the damages phase to keep prejudicial information unknown to Bennallack at the time of the shooting from the jury. The district court agreed to sever punitive damages from liability and compensatory damages, but refused to bifurcate liability from compensatory damages, explaining that limiting instructions would cure any potential prejudice.

During the trial, and over Plaintiffs' attorney's repeated objections, the district court's evidentiary rulings failed to comport with its pretrial rulings so that the jury was exposed to "copious amounts of inflammatory and prejudicial evidence with little (if any) relevance." The most prejudicial evidence related to Diaz's gang membership, including testimony from the gang expert, photographs featuring Diaz's gang tattoos, and Diaz posing with guns and throwing gang signs, none of which Bennallack knew about when he shot Diaz. Although the court at times ordered the gang expert's testimony stricken, the jury was exposed to testimony wholly irrelevant to liability and of limited relevance even as to damages. Other inflammatory evidence admitted over Plaintiffs' objections concerned Diaz's drug use, the amount of methamphetamine in Diaz's system at the time of the shooting, and whether Diaz was under the influence of methamphetamine when shot.

After hearing the evidence, the jury returned a verdict for Defendants, finding Bennallack did not use excessive or unreasonable force. Plaintiffs moved for a new trial, but the court denied the motion. This appeal followed.

The Ninth Circuit panel began its opinion by stating that Federal Rule of Civil Procedure 42(b) permits a trial court to order a separate trial of separate claims or issues for convenience, to avoid prejudice, or to economize. This includes the authority to separate trials into liability and damages phases. De Anda v. City of Long Beach, 7 F.3d 1418, 1421 (9th Cir. 1993). The court held that the district court abused its discretion by refusing to bifurcate the compensatory damages phase, thereby allowing unduly prejudicial evidence on the question of liability. As a result, despite the trial court's pre-trial evidentiary rulings, the jury was exposed to "copious amounts of inflammatory and prejudicial evidence" relating to Diaz's alleged gang activity and drug use. Gang evidence has the potential to be particularly prejudicial. Kennedy v. Lockyear, 379 F.3d 104,1055 (9th Cir. 2004). The court described the gang evidence here as "simply overkill."

The Ninth Circuit panel cautioned that it was not announcing a rule that requires district courts to "always, usually, or frequently" bifurcate damages from liability, as trial courts have broad discretion. But where graphic and prejudicial evidence about the victim has little or in large part no relevance on the liability issue, courts should bifurcate.

To assist the district court in the retrial of this case, the court provided the following "guidance." First, evidence of Diaz's drug use and gang affiliation has marginal, if any, probative value as to damages, and none as to liability. Second, if Plaintiffs will stipulate Diaz was a gang member, no expert testimony about gangs should be admitted. Third, the district court should recognize that a limiting instruction may not sufficiently mitigate the prejudicial impact of evidence in all cases. Fourth, if the trial court is going to strike testimony, the court should clearly identify what testimony was improperly given and instruct the jury that it may not be considered. Further, the court should warn witnesses and attorneys that further attempts to "push the envelope" could lead to greater sanctions as "lawyers and witnesses, like misbehaving children or rattled basketball players, sometimes need a timeout."

Finally, the Ninth Circuit panel considered the Plaintiff's cross-appeal, claiming the district court erred in denying their motion for judgment as a matter of law on the excessive force issue. The court affirmed the denial of the motion because there were factual issues for the jury to resolve.

To read the full opinion, please visit:
http://cdn.ca9.uscourts.gov/da...16/08/24/14-55644.pdf

Panel: Marsha S. Berzon and John B. Owens, Circuit Judges, and Alegnon L. Marbley, District Judge

Argument Date: July 7, 2016

Date of Issued Opinion: August 24, 2016

Docket Number: No. 14-55644

Decided: Reverse and Remanded

Case Alert Author: Kimberly Dang

Counsel: Dale K. Galipo (argued) and Melanie T. Partow, Law Offices of Dale K. Galipo, Woodland Hills, California; Angel Carrazco, Kr., Carrazco Law, A.P.C., Tustin, California; Paul L. Hoffman, Schonbrum Desimone Seplow Harris & Hoffman, LLP, Venice, California; Humberto Guizar, Humberto Guizar Law Offices, Montebello, California; for Plaintiffs-Appellants

Moses W. Johnson, IV (argued), Assistant City Attorney, Anaheim, California; Steven J. Rothans and Jill Williams, Carpenter, Rothans & Dumont, Los Angeles, California; for Defendants-Appellants

Author of Opinion: Judge Owens

Circuit: Ninth Circuit

Case Alert Supervisor: Philip Merkel

    Posted By: Glenn Koppel @ 10/27/2016 03:42 PM     9th Circuit  

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