The opinion filed on August 24, 2016, and reported at 834 F.3d 1048, is hereby amended. The superseding amended opinion will be filed concurrently with this order.
The panel has voted to deny the petition for panel rehearing. Judges Berzon and Owens voted to deny the petition for rehearing en banc, and Judge Marbley so recommends.
The full court has been advised of the suggestion for rehearing en banc, and no active judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.
The petition for panel rehearing and rehearing en banc is
No further petitions for panel rehearing or petitions for rehearing en banc will be entertained.
OWENS, Circuit Judge:
Anaheim Police Officer Nicholas Bennallack shot and killed Manuel Diaz during a mid-day encounter in July 2012. Diaz's estate and mother ("Plaintiffs") sued Officer Bennallack and the City of Anaheim ("Defendants") for federal civil rights violations and proceeded to a jury trial, but lost. Plaintiffs argue they should receive a new trial due to inflammatory evidence introduced by Defendants that had no relevance to the key issue in the case — whether Officer Bennallack acted within the law when he shot Diaz. Because the district court abused its discretion in failing to bifurcate liability from compensatory damages — thus admitting this evidence at the liability phase of the trial — and the error was harmful, we reverse and remand.
I. FACTS AND PROCEDURAL HISTORY
A. Fatal Shooting of Manuel Diaz
While on routine patrol in gang territory the afternoon of July 21, 2012, Officers Bennallack and Heitmann drove their unmarked black Crown Victoria into an alley off of Anna Drive in Anaheim, California. They were not responding to a call or plea for help, though Bennallack had arrested a man for gun possession there two weeks prior.
In the alley, Bennallack saw Diaz and another man standing near a parked vehicle, with a third man inside. Bennallack neither recognized Diaz nor saw anything in his hands. But, Bennallack thought that criminal activity was afoot, and that Diaz was a gang member, based on his experience in the area and how Diaz was dressed.
As the officers chased Diaz, they could not see his hands. Based on how Diaz's arms were not "pumping" as expected and the outward position of his elbows, Bennallack claimed, he thought Diaz's hands were in his waistband. Another witness did not see Diaz put his hands at his waistband. Both officers said that Diaz looked back at them while he was running away, which they took as his attempt to "acquire a target."
The officers yelled commands such as "stop," "get on the ground," and "show me your hands," but Diaz kept running, and eventually went through a gate and into a courtyard. Bennallack was roughly five to ten feet behind Diaz during the chase. Bennallack testified that at one point, Diaz possibly could have exited through a gate to the street, but did not.
Diaz then slowed down. Witnesses disagreed about his movements at this point. Bennallack said Diaz turned to his left, while Heitmann said he turned to his right. One witness did not see him turn or make any threatening movements, while another saw Diaz turn in a non-threatening manner when the police told him to get on the ground.
As Diaz started to turn, Bennallack claimed to see a black cloth object going over a fence close to Diaz. Bennallack said that he believed Diaz had a gun in a "low-ready" position in front of his body, ready to fire. According to Bennallack, as Diaz turned and Bennallack saw the object in the air, he fired twice. When Bennallack shot Diaz, he could not see any part of his arms or hands. The shots occurred within one to two seconds after Diaz started to slow down; Bennallack made no lethal force warning. The first bullet entered Diaz's right buttock and was lodged in his left thigh. The second bullet entered the right side of Diaz's head, just above and behind his right ear, and exited the left side of his head near his left ear. Diaz was handcuffed and searched. He died shortly thereafter at a nearby hospital. Officers found a black cell phone and narcotics pipe nearby. No firearm was recovered from the scene.
B. Pretrial Litigation
Diaz's estate and his mother, Genevieve Huizar, brought suit against the City of Anaheim and Officer Bennallack.
A number of Plaintiffs' claims were disposed of by stipulation and the district court's partial grant of Defendants' motion for summary judgment. By trial, Plaintiffs' remaining claims included three claims under 42 U.S.C. § 1983 (excessive force and unreasonable detention under the Fourth
a. Motions In Limine
The parties filed a number of motions in limine, some of which are relevant on appeal.
b. Motion To Bifurcate
Plaintiffs also moved to bifurcate the liability phase from the damages phase of the trial, to avoid the risk that prejudicial information unknown to Officer Bennallack at the time of the shooting — such as Diaz's gang membership, related photos, and drug usage — would taint the jury's consideration of Bennallack's use of deadly force. The district court granted this motion in part, severing punitive damages from liability and compensatory damages. The district court briefly explained that neither prejudice nor the complexity of the issues warranted bifurcating liability from compensatory damages, and that limiting instructions would cure any potential prejudice. The record is unclear as to why the court bifurcated punitive damages but not compensatory damages.
After a six-day trial, the jury deliberated for less than two hours before returning a verdict that Officer Bennallack did not use
i. Improper Evidence of Diaz's Gang Membership
The most troubling evidence admitted at trial related to Diaz's gang membership. There was wide-ranging testimony from Defendants' gang expert, Gonzalez. There were also photographs featuring Diaz's tattoos and him posing with guns and throwing gang signs, none of which Bennallack knew about or had seen when he shot Diaz.
In ruling on the motions in limine, the district court held that evidence of Diaz's gang affiliation was relevant only to damages, because Officer Bennallack did not know he was a gang member. The court also specifically excluded evidence of Diaz's gang tattoos themselves, such as photographs, because such evidence was unnecessary to establish the fact that he was a gang member. The court later recognized generally that "[p]hotographs have the potential for both relevant evidence and gratuitous provocation of the jury."
Further, before trial the court had warned that if Diaz's mother testified she had no knowledge of his gang affiliation, the court would revisit its ruling on the admissibility of evidence of Diaz's tattoos. The court also noted that if Plaintiffs stipulated that Diaz was a gang member, it would reconsider its decision regarding the testimony of the gang expert. At trial, Diaz's mother was somewhat equivocal as to whether she knew her son was a gang member.
The court then ruled that Defendants could offer photographs of Diaz's gang tattoos and him throwing gang signs, as well as other information related to his gang moniker, clothing, and association. When Plaintiffs' counsel questioned the court's change of heart regarding the admission of the tattoo photographs — which it had initially excluded — the court remarked, "[w]ell, I think they're entitled to put in probative evidence. She hasn't straight up admitted that he was a gang member. I don't think the tattoos are inflammatory. They are what they are." In contrast, the court excluded discussion of specific gang activities, and any additional photographs of Diaz with guns, as some already had
The testimony of gang expert Gonzalez was highly prejudicial — so much so that the court gave the jury an early limiting instruction soon after he testified. Before giving the instruction, the district court stated in a sidebar that:
The district court rightly pointed out Gonzalez's testimony was both inflammatory and beyond the scope permitted by the court — as were some of the questions defense counsel posed.
For example, when asked "Why do gang members pose with guns?" Gonzalez responded: "It goes into their image, their persona of being a gang member, showing other gang members that they have firearms readily accessible, that they have means to commit crimes against the general public, against law enforcement, against rival gang members." (emphasis added). When asked "Why do gang members wear baggy T-shirts?" he responded in part: "Another reason that I have come to learn about is that it helps conceal items like firearms, other deadly weapons. It's easier to put a rifle or a sawed-off shotgun down your shorts or your pants when you've got baggy pants on and a baggy shirt." Gonzalez also was permitted to testify to several things which the court originally had excluded as unduly prejudicial under Rule 403 during the motions in limine, including that Anna Drive was part of the gang's turf and gang activities in general. He further testified about Diaz's gang moniker — "Stomper" — and then repeatedly used the moniker to refer to Diaz. The jury also learned that Gonzalez personally had arrested Diaz on a prior occasion.
Some of Gonzalez's testimony was formally "stricken" from the record. The following pattern arose: after improper testimony, Plaintiffs' counsel would move to strike the testimony and the district court would state "stricken" or "the last part of the answer will be stricken." During one stretch, this pattern occurred on five different occasions in seven minutes. Gonzalez was neither warned nor reprimanded, save for the district court directing him at
In summary, Gonzalez's testimony did not hew to the district court's direction to be "narrow" and "focused on his gang membership, not the activities of the gang at large." Instead, Gonzalez took every opportunity to opine on matters squarely forbidden by the court's previous rulings. As a result, the jury was exposed to inflammatory testimony that was wholly irrelevant to liability, and of limited relevance even as to damages.
ii. Improper Evidence of Diaz's Drug Use
Further, despite its original hesitation, the district court ultimately ruled that the toxicology evidence was relevant to damages,
But beyond any marginal relevance of Diaz's drug use to damages — again, because it supposedly undermined his mother's claim that she loved her son — the evidence at trial fixated on his drug use on the day of the incident and how it may have affected his behavior, which had no relevance to his mother's loss. Indeed, the singular focus of the drug-use testimony was Diaz's toxicological status on the day he was shot, a risk which the district court recognized when it first ruled on the issue pretrial. At the time, the court "reject[ed] the contention that drug intoxication on the date of the incident goes to damages. At most, it establishes his condition on just one day. Any further inference would be unsupported and unduly prejudicial."
To this end, Defendants' toxicology expert, Dr. Clark, discussed the high levels of methamphetamine in Diaz's blood when he died, and opined that he was intoxicated when he was shot:
Dr. Clark also described the behavioral effects of methamphetamine use and how it may have affected Diaz's behavior on July 21:
While the court granted Plaintiffs' motion to strike the second part of the response as lacking medical probability, the jury already had been exposed to this testimony.
A. The Trial Court Erred in Failing To Bifurcate Liability from Compensatory Damages
Judges have wide latitude in conducting their trials, and for good reason. See, e.g., Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002). This is why the rules permit bifurcation, and why we usually affirm a trial judge's decision — to either bifurcate or keep things together — as within her discretion. But this discretion is not limitless.
a. Standard of Review
We review for abuse of discretion the district court's rulings on whether to bifurcate a trial. Exxon Co. v. Sofec, Inc., 54 F.3d 570, 575 (9th Cir. 1995). Under this standard, we reverse only when we are "convinced firmly that the reviewed decision lies beyond the pale of reasonable justification under the circumstances." Harman v. Apfel, 211 F.3d 1172, 1175 (9th Cir. 2000).
Federal Rule of Civil Procedure 42(b) permits a court to order a separate trial of separate claims or issues "[f]or convenience, to avoid prejudice, or to expedite and economize." A court might bifurcate a trial to "avoid a difficult question by first dealing with an easier, dispositive issue," Danjaq LLC v. Sony Corp., 263 F.3d 942, 961 (9th Cir. 2001), or to avoid the risk of prejudice. See Quintanilla v. City of Downey, 84 F.3d 353, 356 (9th Cir. 1996) (explaining that, in a § 1983 case challenging the use of a police dog during a search, the trial court bifurcated the trial of the individual officers from that of the city in part to avoid prejudice). Further, "[i]t is clear that Rule 42(b) gives courts the authority to separate trials into liability and damage phases." De Anda v. City of Long Beach, 7 F.3d 1418, 1421 (9th Cir. 1993); see also 9A Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 2390 (3d ed. 2016) ("The separation of issues of liability from those relating to damages is an obvious use for Federal Rule 42(b).").
Here, under the guise of impeaching Huizar's testimony that she loved her son, Defendants introduced (over repeated objection) photographs of Diaz posing with firearms and making gang signs. Then Gonzalez expounded on the activities and customs of violent gangs and described Diaz's moniker of "Stomper," his criminal history, and his tattoos in great detail. Dr. Clark speculated as to how the enormously high level of methamphetamine in Diaz's system at the time of the shooting may have affected his response to the police. It is hard to see how most of this testimony was relevant even to damages, absent testimony — of which there was none — that Ms. Huizar knew of the photographs, gang signs, and drug use on the day of the offense, and that that knowledge undermined the emotional impact of her son's death. And there was also highly prejudicial testimony that was under any circumstances not relevant to liability or damages. For example, Gonzalez stated that
This was simply overkill. Considering that the parties and district court had repeated trouble tracking precisely why this prejudicial evidence was admissible for any purpose, no jury could properly compartmentalize it. For example, on the fourth day of trial, the court and parties were still not clear about whether the fact that Diaz was under the influence of drugs was relevant to liability under a comparative fault defense, even after Plaintiffs had dropped their negligence claim.
Indeed, this court has recognized time and time again that gang evidence has the potential to be particularly prejudicial. See, e.g., Kennedy v. Lockyer, 379 F.3d 1041, 1055 (9th Cir. 2004) ("Our cases make it clear that evidence relating to gang involvement will almost always be prejudicial[.]"); United States v. Takahashi, 205 F.3d 1161, 1165 (9th Cir. 2000) (holding the district court did not abuse its discretion in admitting evidence of gang membership where the court "recognized the need to prevent undue prejudice," gave a limiting instruction, excluded photographs of gang tattoos as evidence of membership, and minimized repetition of the gang's name).
Similarly, even if evidence of Diaz's drug use were relevant to damages, the form and nature of the evidence presented regarding his drug use on the day of the incident was unduly prejudicial in light of the decision not to bifurcate. It would have been far more relevant to damages for an expert to testify simply to the presence of drugs in Diaz's body and to the effects of drug use on relationships. The focus on the day of the incident was minimally probative of damages, and was highly likely to influence improperly the jury's evaluation of Officer Bennallack's use of force, when he never suggested he thought Diaz may have been intoxicated.
Further, the district court already had bifurcated punitive damages. Bifurcating from the liability phase the testimony actually relevant to compensatory damages would have cost little, if any, court time — none, if the jury had returned a defense verdict.
In light of our decision to reverse the judgment and remand for a new trial, we also provide some guidance to the district court.
First, the evidence of Diaz's drug use and gang affiliation has marginal, if any, probative value as to damages, and none as to liability. On retrial, the district court should closely review this evidence under Federal Rules of Evidence 401 and 403, and should assure that such evidence is admitted only to the degree that the testimony is connected up with Ms. Huizar's reaction to her son's death.
Second, if Plaintiffs are willing to stipulate that Diaz was a gang member (which they claim they tried to do during trial), no expert testimony about gangs — such as gang activities, tattoos, or monikers — should be admitted. Bennallack can certainly testify as to his knowledge about gang activity in the area. See Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (holding that to determine whether police force is excessive, the proper inquiry is "whether the officers' actions are `objectively reasonable' in light of the facts and circumstances confronting them").
Third, while there is a "strong presumption that jurors follow instructions," a limiting instruction may not sufficiently mitigate the prejudicial impact of evidence in all cases. See Miller v. City of Los Angeles, 661 F.3d 1024, 1030 (9th Cir. 2011); Bayramoglu v. Estelle, 806 F.2d 880, 888 (9th Cir. 1986) ("A timely instruction from the judge usually cures the prejudicial impact of evidence unless it is highly prejudicial or the instruction is clearly inadequate." (quoting United States v. Berry, 627 F.2d 193, 198 (9th Cir. 1980))). The Advisory Committee Note to Federal Rule of Evidence 403 also recognizes the potential inadequacies of a limiting instruction, counseling that "[i]n reaching a decision whether to exclude on grounds of unfair prejudice, consideration should be given to the probable effectiveness or lack of effectiveness of a limiting instruction." And if a limiting instruction was considered sufficient to cure all prejudice, there would be no need ever to bifurcate to avoid prejudice in other cases; yet in the civil rights context, courts often bifurcate the trials of individual officers from municipalities
And fourth, if the district court is going to sustain an objection and grant a motion to strike, merely saying "stricken" does not sufficiently inform the jury about the proper use of the evidence it just heard. When striking testimony, the court should clearly identify what testimony was improperly given, and should instruct the jury that it may not be considered. It should also use a sidebar or brief recess to warn the witnesses and attorneys that further attempts to push the envelope could lead to greater sanctions, such as exclusion of testimony or a negative instruction.
B. The Trial Court Did Not Err in Ruling Force Was Not Excessive as a Matter of Law
Plaintiffs also appeal the district court's denial of their motion for judgment as a matter of law on their excessive force claim. Because the district court correctly ruled that this question was one for the jury, we affirm its denial of Plaintiffs' motion.
a. Standard Of Review
"We review de novo the district court's denial of a Rule 50(b) renewed motion for judgment as a matter of law. The test is whether `the evidence, construed in the light most favorable to the nonmoving party, permits only one reasonable conclusion, and that conclusion is contrary to that of the jury.'" White v. Ford Motor Co., 312 F.3d 998, 1010 (9th Cir. 2002), amended on denial of reh'g, 335 F.3d 833 (9th Cir. 2003) (footnote omitted) (quoting Forrett v. Richardson, 112 F.3d 416, 419 (9th Cir. 1997)). We "may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).
Where an "excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment." Graham, 490 U.S. at 394, 109 S.Ct. 1865. As with other Fourth Amendment claims, we inquire "whether the officers' actions are `objectively reasonable' in light of the facts and circumstances confronting
We determine whether challenged state actions are objectively reasonable by balancing "`the nature and quality of the intrusion on the individual's Fourth Amendment interests' against the countervailing governmental interests at stake." Id. at 396, 109 S.Ct. 1865 (quoting Tennessee v. Garner, 471 U.S. 1, 8, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)). This demands a "fact-intensive inquiry requiring attention to all circumstances pertinent to the need for the force used." Velazquez, 793 F.3d at 1024. We "first consider the nature and quality of the alleged intrusion; we then consider the governmental interests at stake by looking at (1) how severe the crime at issue is, (2) whether the suspect posed an immediate threat to the safety of the officers or others, and (3) whether the suspect was actively resisting arrest or attempting to evade arrest by flight." Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (en banc) (citing Deorle v. Rutherford, 272 F.3d 1272, 1279-80 (9th Cir. 2001)). These factors are not exclusive. Id.
Here, while Plaintiffs presented substantial evidence that the force was unreasonable, Defendants also presented substantial evidence to support their position. When each of the Graham factors is analyzed, the record does not "permit only one reasonable conclusion ... contrary to that of the jury." White, 312 F.3d at 1010 (citation omitted).
i. Severity of the Crime or Other Circumstances to Which the Officers Were Responding
It is undisputed that the only crime Diaz had committed, if any, was a misdemeanor, and that Officer Bennallack had no information that a crime was reported in the area. However, Bennallack was aware of an ongoing criminal investigation in the area involving the sale and possession of firearms by the East Side Anaheim Gang, and believed Diaz to be a gang member.
ii. Immediate Threat To Officer Safety
While Officer Bennallack testified that he never saw Diaz's hands, or a weapon on his person, certain indicia could have led a reasonable officer to believe Diaz was armed. For example, Bennallack observed that rather than pumping his arms as he ran, Diaz was "reaching towards his waistband" and appeared to be manipulating an object with his hands. Bennallack also testified that Diaz looked back at the officers multiple times, as if to acquire a target. Finally, instead of running through a gate that led to the street, Diaz led the officers into a fenced-in area, and Bennallack observed Diaz begin to slow down, assume a "low-ready" position, and turn towards him.
On the other hand, in addition to the fact that Bennallack never saw Diaz's hands or a weapon on his person, other evidence weighs against an immediate threat to officer safety. For example, Diaz was shot in the back, which could refute Bennallack's testimony that he was turning. While the jury was entitled to weigh this evidence and Bennallack's credibility against other evidence and the credibility of witnesses who offered alternative versions of events, we must view the evidence in the light most favorable to Defendants.
Certainly "a simple statement by an officer that he fears for his safety or the safety of others is not enough." Deorle, 272 F.3d at 1281. Nevertheless, Defendants presented facts demonstrating why such fear could have been reasonable here, including observations of Diaz's movements,
iii. Attempting To Evade Arrest by Flight
It is undisputed that Diaz was running from the officers and did not obey their commands to stop, put his hands up, or get on the ground. That Diaz was slowing down at the time of the shooting does not compel the conclusion that he was complying with the officers' orders, nor does it prove that he was preparing to shoot the officers. These are both reasonable interpretations of the evidence. The jury was entitled to choose between them based on their weighing of the evidence and the witnesses' credibility.
In sum, taking the evidence in the light most favorable to Defendants, these facts do not warrant judgment for Plaintiffs as a matter of law.
Police shootings are often the most difficult — and divisive — cases that our legal system and society encounter. Wrapped in strong emotion and often opaque case law, they can perplex even our most experienced trial judges, like the judge in this case. To avoid the runaway case — like this one, where the Defendants and their witnesses repeatedly overstepped the judge's rulings — courts should use bifurcation to corral lawyers and witnesses, so the jury hears only evidence relevant to the issues at hand. Here, that was whether Officer Bennallack acted lawfully when he shot Diaz. Because the jury heard considerable and inflammatory evidence that had nothing to do with that question, we