1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 THE ESTATE OF CECIL ELKINS, CASE NO. 1:13-CV-1483 AWI SAB CREASHA ELKINS, individually and as 9 guardian ad litem for DYLAN ELKIN and DEVIN ELKINS, VALIECIA ORDER ON PLAINTIFFS’ MOTION 10 PEREZ, and TINA TERRELL, FOR RECONSIDERATION
11 Plaintiffs (Doc. No. 296) 12 v.
13 HIPOLITO PELAYO,
14 Defendant
15 16 17 This is a civil rights lawsuit that arises from the fatal encounter between decedent Cecil 18 Elkins, Jr. and Defendant California Highway Patrol Officer Hipolito Pelayo (“Defendant” or 19 “Pelayo”). Currently before the Court is a trial brief by Plaintiffs that is in reality a motion for 20 reconsideration of the Court’s ruling on Defendant’s motion in limine number four. For the 21 reasons that follow, Plaintiffs motion will be denied. 22 Plaintiffs’ Argument 23 Plaintiffs argue that reconsideration is warranted because of misapplication of the law. 24 While the Court cited the appropriate Federal Rule of Evidence (“FRE”) 404(b)(2) standards, the 25 Court lost focus of the facts that made the prior evidence relevant to this case. Defense expert 26 Clarence Chapman will testify that “Judgment comes into consideration based on an officer’s 27 ability to articulate a threat that can be viewed as objectively reasonable.” Chapman Depo. 83:2- 28 18. Chapman will also opine that as of November 2012, Pelayo appeared to be “extremely 1 professional, experienced and mature.” Chapman Depo. 84:8-15. While Chapman would not 2 concede that lack of maturity could affect an officer’s judgment in a scenario such as that faced by 3 Pelayo, he does concede that the statement could be relevant to Pelayo’s state of mind. Chapman 4 Depo. 135:11-136:12. The Court’s conclusion that there is no expert testimony to the effect that 5 this statement is relevant to Pelayo’s conduct in this case is not true. Chapman’s expert testimony 6 confirms that the prior incident could be useful to the jury to establish Pelayo’s motive and intent 7 during the incident in question, as suggested by the Ninth Circuit. Also, to the extent that Pelayo 8 is going to portray himself as an upstanding officer who always exercises good judgment in the 9 field, the jury should be able to consider this prior incident. 10 Plaintiffs argue that the prior incident is similar to the shooting in this case. The prior 11 incident occurred just 2 years prior and involves strikingly similar facts. Pelayo was chasing an 12 unarmed suspect accused of assaulting an officer with a deadly weapon, i.e. a motor vehicle. The 13 relevance of the prior incident is critical to the issue of intent – Did Pelayo intend to subdue a 14 perceived violent felon, or did Pelayo intend to use any means necessary to stop a fleeing felon 15 from getting away? The latter is a clear violation of the Fourth and Fourteenth Amendments. 16 Plaintiffs also argue that Court relied too much on the CHP’s internal investigation of the 17 prior incident because it is the conduct of Pelayo, not the findings of the internal investigation, that 18 is relevant. The investigator is not the trier of fact, nor does his conclusion determine Pelayo’s 19 motive. Pelayo’s conduct in the prior incident speaks volumes to what he actually perceived and 20 his response thereto when Elkins was fatally shot. The admission of this evidence would not 21 create a separate mini-trial as Plaintiffs only seek to introduce evidence of Pelayo’s prior similar 22 act, not the investigation of the same. The prior incident should not be disregarded on the grounds 23 that the CHP found Pelayo’s conduct to be within policy, particularly since CHP’s policies do not 24 bear on the immaturity of Pelayo’s actions or on his motive and intent. 25 Finally, the Court misapplied United States v. Berckmann to this case, and it is an incorrect 26 statement of the law of this case to suggest that the only factual issue is whether Elkins reached for 27 his waistband. Pelayo’s motive and intent is highly relevant to this case. Was Pelayo motivated to 28 shoot Elkins because he feared for his life or did he shoot to keep Elkins from running? 1 Defendant’s Opposition 2 Pelayo argues that reconsideration is improper. Initially, Pelayo argues that this motion 3 should be denied because it was not timely filed in accordance with the Court’s briefing schedule. 4 Further, the motion fails to set forth any new facts or law as required by Local Rule 230(j). 5 Instead, the motion is a disagreement with the Court’s prior ruling, which is an insufficient basis 6 for reconsideration. 7 Pelayo also argues that the motion demonstrates that Plaintiffs are attempting to introduce 8 evidence of the prior incident and find him guilty in this case based on how he acted in the prior 9 case. Plaintiffs rely on a disputed statement from the factually distinct incident two years prior to 10 improperly argue that Pelayo had a motive to shoot fleeing felons. 11 Pelayo also argues that the events of this case are not factually similar to the prior incident. 12 In the prior incident, Pelayo was responding to assist a detective who was in pursuit of a felon who 13 had rammed another officer’s vehicle with a stolen car before fleeing. Pelayo was aware that the 14 felon was known to be armed, mentally unstable, gang affiliated, a parolee at large, and extremely 15 dangerous. When the stolen vehicle was stuck in the mud, the felon fled on foot and was pursued 16 on foot by the detective. When Pelayo arrived on scene, he only heard a broadcast from the 17 detective which consisted only of repeated yelling over the radio for the felon to “get on the 18 ground,” with no further transmissions despite attempts to contact the detective. Pelayo ran 19 through the mud of a pitch black dirt field in an attempt to located and backup the detective. As 20 Pelayo was running through the field, he suddenly saw the felon appear about 5 or 6 feet in front 21 of him, on his knees but arching his back in an attempt to stand; Pelayo did not see the detective 22 and concluded that the scene was not secure. Pelayo decided to tackle the suspect. As he was 23 about to tackle the suspect, he suddenly saw the detective and realized that he would collide with 24 the detective if he tackled the felon. Pelayo then decided to deliver a distracting blow to the felon. 25 Only after the blow was delivered did Pelayo see that the felon was already handcuffed. Although 26 the felon later filed a formal complaint about being struck in the face by Pelayo, the felon did not 27 complain about any statements made by Pelayo. By contrast, this case occurred two years after 28 the prior incident. Pelayo was advised that Elkins was spun out on meth, was wanted for 1 attempted homicide on two law enforcement officers, and had displayed a pattern of violence 2 towards law enforcement. When Elkins was contacted, Pelayo observed Elkins violently resist 3 arrest by throwing metal objects and tools at a pursuing officer while ignoring repeated 4 instructions to surrender, jumping a tall fence, and reaching for his waistband in a manner 5 consistent with attempting to retrieve a firearm. Unlike the prior incident, Elkins was not in 6 custody, continued to pose an active threat, and engaged in behaviors consistent with an intent to 7 shoot. 8 Pelayo also argues that his use of force against the felon in the prior incident was upheld. 9 Thus, the prior event does not reflect a history of excessive force towards arrestees or those that 10 flee. Moreover, Plaintiffs omit the critical fact that there have been no other complaints ever made 11 against Pelayo for the use of force, nor have there been any similar reports or events since the 12 2010 prior incident. Because Pelayo was exonerated for his use of force in the prior incident, the 13 prior events are not admissible. 14 Pelayo also argues that the prior incident and alleged statements are inadmissible under 15 FRE 403. There is a significant danger of confusion and waste of time because Pelayo argues that 16 he will then introduce events regarding his actions during the prior incident, the factual 17 circumstances of the prior incident, the reasons for his actions, and the legality of his actions. This 18 will entail testimony from additional non-subpoenaed witnesses. Pelayo also argues that he would 19 introduce evidence that he has been involved in hundreds of foot chases over the course of his 20 career and there have been no similar complaints by anyone who was chased by Pelayo. 21 Finally, Pelayo argues that the Court did not misapply Berckmann. 22 Legal Standards 23 1. Reconsideration 24 The Ninth Circuit has instructed that motions for reconsideration “should not be granted, 25 absent highly unusual circumstances, unless the district court is presented with newly discovered 26 evidence, committed clear error, or if there is an intervening change in the law.” Marlyn 27 Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009); see 28 Deerpoint Grp., Inc. v. Agrigenix, LLC, 400 F. Supp. 3d 988, 993 (E.D. Cal. 2019). “A motion for 1 reconsideration may not be used to raise arguments or present evidence for the first time when 2 they could reasonably have been raised earlier in the litigation.” Marlyn, 571 F.3d at 880; 3 Deerpoint, 400 F.Supp.3d at 993-94. The mere disagreement with the court’s prior decision or the 4 mere recapitulation of arguments that were made previously but rejected are not sufficient bases to 5 grant reconsideration. Deerpoint, 400 F.Supp.3d at 993; American States Ins. Co. v. Insurance 6 Co. of Pa., 245 F.Supp.3d 1224, 1227 (E.D. Cal. 2017); Cunningham v. Kramer, 178 F.Supp.3d 7 999, 1003 (E.D. Cal. 2016). Additionally, Local Rule 230 in relevant part requires a moving party 8 to shows that new or different facts or circumstances are claimed to exist which did not exist or 9 were not shown upon such prior motion, or what other grounds exist for the motion, and why the 10 facts and circumstances were not shown at the time of the prior motion. Local Rule 230(j); 11 Deerpoint, 400 F.Supp.3d at 994; Cunningham, 178 F.Supp.3d at 1003. 12 2. Rule 404(b) 13 Under FRE 404(b), “[e]vidence of a crime, wrong, or other act is not admissible to prove a 14 person’s character in order to show that on a particular occasion the person acted in accordance 15 with the character.” Fed. R. Evid. 404(b)(1); United States v. Lague, 971 F.3d 1032, 1038 (9th 16 Cir. 2020). However, evidence of the crime, wrong, or other act may be admitted for “another 17 purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, 18 absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2); United States v. Charley, 1 19 F.4th 637, 647 (9th Cir. 2021). The proponent of another crime, wrong, or other act has the 20 burden to show: (1) the evidence tends to prove a material point (materiality); (2) the other act is 21 not too remote in time (recency); (3) the evidence is sufficient to support a finding that defendant 22 committed the other act (sufficiency); and (4) the past act is similar to the current conduct at issue 23 (similarity). See Charley, 1 F.4th at 647; United States v. Berckmann, 917 F.3d 999, 1002 (9th 24 Cir. 2020). “In the civil rights context, courts are reluctant to admit evidence of prior excessive 25 force complaints against a police officer if the complaints are unsubstantiated.” United States v. 26 Bailey, 696 F.3d 794, 800 n.6 (9th Cir. 2012). “[T]he relevance of a single unsubstantiated charge 27 is obviously limited,” Berkovich v. Hicks, 922 F.2d 1018, 1023 (2d Cir. 1991), and “inconclusive 28 allegations of prior similar behavior is not useful.” Bailey, 696 F.3d at 800 n.6. 1 Prior Ruling 2 In the original order Defendant’s fourth motion in limine, the Court granted the motion and 3 excluded all evidence relating to the prior incident, including Pelayo’s statement to the felon of 4 “that’s what you get for making me run, bitch” (or words to that effect), and later saying after 5 Pelayo, the Suspect, and the detective were walking out of the field “you’re lucky I didn’t shoot 6 your ass.” The Court explained as follows: 7 Plaintiffs contend that evidence of the 2010 incident is admissible because it weighs on Pelayo’s credibility and integrity. The Court takes this to mean that the 8 2010 incident reflects poorly on the professionalism of Pelayo, that he lied about self-reporting his actions because the investigation was prompted by complaints 9 from the Tulare Officer, and that he has a documented intolerance for people who run. However, as detailed above, the investigation into this matter found that 10 Pelayo did self-report the 2010 incident to his supervising sergeant. See Doc. No. 258 at ECF p.12. Although Pelayo did not immediately report the incident, he 11 unsuccessfully attempted to do so shortly after the incident and eventually was able to report the matter early the next morning. See id. The investigation found that 12 Pelayo’s reporting timeframe was justified and within departmental policy. See id. Therefore, this aspect of the 2010 incident does not reflect negatively on Pelayo 13 and does not adversely reflect integrity or credibility. Further, the investigation exonerated Pelayo of using excessive force when he struck the Suspect. The report 14 noted that Pelayo acknowledged that he used “discourteous language” and found that statements of either “That’s what you get for making me run, bitch,” or “That’s 15 what you get for fucking making me run,” were a violation of the policy against using discourteous language in the course of duties. See id. at ECF p.10. That is, 16 the only unprofessional conduct found in the investigation was for the use of discourteous language. The Court cannot find the fact that Pelayo used 17 discourteous language casts any negative light on Pelayo’s credibility, particularly when Pelayo self-reported and acknowledged making at least one of the statements 18 (both of which are extremely similar) that was found to be discourteous. Finally, and relatedly, the 2010 incident is not a documented instance of intolerance for 19 those that run. As discussed above, the investigation determined that Pelayo’s use of force was reasonable under the circumstances, was done in aid of another officer 20 and to stabilize the situation, and the amount of force used was appropriate and within policy given Pelayo’s reasonable perceptions. See id. at ECF pp.8-9. 21 Plaintiffs also argue that a jury could view the 2010 incident and discredit Pelayo’s 22 recount of fatally shooting Elkins because he also claimed that he could not see the unarmed Suspect’s hands. The Ninth Circuit has held that an officer’s use of the 23 same explanation to justify deadly force in very similar cases could be viewed as a dishonest “song and dance” that discredits the explanation. Cruz v. City of 24 Anaheim, 765 F.3d 1076, 1080 (9th Cir. 2014). However, Pelayo is not using the same story to justify deadly force in two very similar cases. The 2010 incident 25 involved Pelayo running to the aid of an officer whose last known communication indicated distress, Pelayo saw the Suspect getting up, and he hit the Suspect with 26 his fist. Pelayo did not have his firearm drawn, did not utilize deadly force, and did not say that the Suspect made a furtive movement or reached towards his 27 waistband. Rather, Pelayo utilized a distracting blow because he could not determine that the situation was stable and did not know that the Suspect had been 28 handcuffed. Moreover, the final report indicated that the conditions were difficult – 1 Tulare Officer described the lighting condition as nearly “pitch black,” which makes it likely that the running Pelayo did not see that the Suspect was handcuffed. 2 That is, the 2010 incident is not very similar to this case because dramatically different levels of force are involved, different environmental conditions existed, 3 different observations by Pelayo were made, a different policing situation was involved, and different justifications by Pelayo were made to justify different types 4 of force. Therefore, the 2010 incident and the justifications used by Pelayo are not sufficiently similar to the incident with Elkins to materially call Pelayo’s credibility 5 into question. Cf. Cruz, 765 F.3d at 1080.
6 Finally, Plaintiffs argue that the purported statement, “You’re lucky I didn’t shoot your ass,” is a threat that is admissible to show intent for purposes of punitive 7 damages. The Court takes Plaintiffs’ argument to be that, because the Suspect made Pelayo run, Pelayo was mad and made the statement, and since Elkins made 8 Pelayo run, this time Pelayo followed through and intend to shoot Elkins largely because Elkins made him run and did not actually pose a threat. 9 The statement is technically not an act. In and of itself it is a statement by Pelayo 10 and thus, an admission of a party opponent. See Fed. R. Evid. 801(d)(2)(A). However, the alleged statement was made two years prior to the incident with 11 Elkins. In order for the statement to be probative of intent or motive, it must have been made in a context that is similar to the circumstances involving Elkins and 12 that reflects Pelayo’s intent. Cf. Charley, 1 F.4th at 647 (noting similarity requirement under Rule 404(b)(2)); United States v. Ayers, 924 F.2d 1468, 1473 13 (9th Cir. 1991) (expressly recognizing that other acts must be similar in order to prove intent). 14 As just discussed, there are significant differences between the 2010 incident and 15 the incident with Elkins. While Pelayo did have to run in connection with the apprehension of a dangerous suspect, different types of force were used, Pelayo did 16 not have his gun drawn, the different types of force were used for different reasons, the Suspect did not attempt to reach for his waistband, the environmental 17 conditions made movement (muddy field) and vision (nearly pitch black) very difficult, Pelayo only saw the Suspect once the Suspect had been tasered and 18 handcuffed, and it appears that a primary purpose of Pelayo running was to get to the aid of a fellow officer (as opposed to simply trying to apprehend the Suspect) 19 whose status was unknown after the officer’s last transmission indicated danger/distress. Further, the statement is not actually a threat because it did not 20 inform the Suspect of any consequence if the Suspect would do or say a particular thing. Rather, the statement seems to reflect frustration. Pelayo allegedly made the 21 statement after the Suspect was completely subdued and as Pelayo, the Suspect, and the Tulare Officer were together walking out of the field. The statement was 22 not made while Pelayo was using any force, and the statement does not explain any action taken by Pelayo toward or against the Suspect. Therefore, the statement 23 does not appear to fairly reflect any aspect of Pelayo’s intent during the 2010 incident. In sum, the Court is not convinced that the context of the statement 24 reflects Pelayo’s intent or motive or is sufficiently similar to the circumstances involving Elkins to be admissible under Rule 404(b)(2).1 25 To the extent that the 2010 incident or Pelayo’s alleged “shoot your ass” statement 26
27 1 Plaintiffs also indicate that the statement is relevant to show lack of accident. However, to the Court’s knowledge, Pelayo has never contended that any accident occurred. Because the presence or absence of an accident is not a part 28 of this case, the absence of an accident is not a viable Rule 404(b)(2) purpose. 1 CHP’s investigation of the 2010 incident found that Pelayo’s use of force was reasonable and appropriate. The only violation of departmental policy was for 2 discourteous language, and the discourteous language was not the “shoot your ass” statement. In fact, that alleged statement does not appear anywhere in the final 3 report, even though Sgt. Tweed took and recorded the Tulare Officer’s statement and authored the final report. Thus, Sgt. Tweed was aware of the alleged 4 statement. To the Court’s knowledge, Pelayo has always denied that he made the “shoot your ass” statement. The fact that this statement was not found to be a 5 violation of departmental policy, or even addressed in the final report, indicates that there was insufficient substantiation. This lessens the probative value of the 6 statement. See Bailey, 696 F.3d at 800 n.6; Sibrian v. City of L.A., 288 F. App’x 385, 387 (9th 2008); Berkovich, 922 F.2d at 1023. 7 Finally, considering the evidence and testimony that would be necessary to address 8 the 2010 incident, the investigation, and Pelayo’s various statements, significant court time would be taken and there is a real danger of creating a mini-trial. The 9 greater the evidence involved and the trial time consumed, the greater the danger jury confusion. When combined with the natural prejudicial effect that can arise 10 from the fact that complaints were made about Pelayo and investigated by the CHP, the Court finds that the probative value of the 2010 incident (including the “shoot 11 your ass” statement) is substantially outweighed by the danger of unfair prejudice, confusion, and the creation of a mini-trial. See Fed. R. Evid. 403; Bailey, 696 F.3d 12 at 800 n.6; Duran v. City of Maywood, 221 F.3d 1127, 1133 (9th Cir. 2000); Sibrian, 288 F. App’x at 387; Berkovich, 922 F.2d at 1023. 13 Doc. No. 282 at 22:11-26:15. 14 Discussion 15 The Court cannot conclude that reconsideration is warranted. 16 First, the Court set a deadline of noon on May 18, 2022 for the parties to submit additional 17 motions and supplemental briefing. See Doc. No. 292. Plaintiffs did not file this motion for 18 reconsideration until after 10:00 p.m. on May 18. See Doc. No. 296. Because Plaintiffs failed to 19 meet the deadline, the motion for reconsideration can be denied as untimely. 20 Second, and relatedly, motions for reconsideration should not raise arguments that could 21 have been raised earlier. See Marlyn, 531 F.3d at 880; Deerpoint, 400 F.Supp.3d at 994. It is 22 unclear why Plaintiffs did not raise some of the new arguments as part of their original opposition 23 to the motion. Further, Plaintiffs did not raise any further objections to the Court’s ruling until 24 May 13, 2022 at the pre-trial conference, even though the motions in limine ruling was docketed 25 on April 14, 2022. In other words, Plaintiffs had the ruling for a month before they made an 26 objection. Given the arguments made in Plaintiffs’ briefing, it is unclear why reconsideration as 27 well as some of the arguments made be counsel now could not have been made earlier. Therefore, 28 1 the motion also appears untimely apart from the failure to meet the Court’s briefing schedule. Cf. 2 Marlyn, 531 F.3d at 880; Deerpoint, 400 F.Supp.3d at 994. 3 Third, Plaintiffs indicate that the Court made a false statement by finding that no expert 4 concluded that Pelayo’s “shoot your ass” and “bitch” statements were irrelevant to this case. 5 However, the Court made no such conclusion. The Court’s discussion of this issue did not 6 mention expert testimony, either in general or from a specific witness. While the Court’s 7 recapitulation of Pelayo’s arguments indicated that no expert witness was critical of Pelayo’s 8 actions during the prior incident, that recapitulation is neither the analysis or conclusion of the 9 Court – it is merely the Court explaining what Pelayo was arguing. Moreover, Plaintiffs never 10 argued in opposition to Pelayo’s motion in limine that Chapman’s expert testimony was relevant 11 to the admissibility of any aspect of the prior incident. Plaintiffs do not explain why the issue of 12 Chapman’s expert testimony was not made as part of their opposition to the motion in limine. See 13 Marlyn, 571 F.3d at 880; Deerpoint, 400 F.Supp.3d at 993; Local Rule 230(j). Finally, Chapman 14 testified that: prior incidents do not necessarily impact the determination of an officer’s judgment; 15 Chapman believed that Pelayo was experienced, alert, and mature based on his discussions with 16 him in 2016 but Chapman was not present at the November 2012 shooting; that Pelayo striking a 17 subject who had fled and then stating “Why did you make me run, bitch” would not affect any 18 assessment of emotional maturity in relation to this case because the circumstances in this case 19 were totally different; Chapman’s maturity assessment is based on an officer’s adherence to POST 20 standards and not some sort of psychological assessment; Chapman’s maturity assessment was 21 based only on the events of November 13, 2012, and he did not focus on any past events involving 22 Pelayo; the statement that “this is what you get for making me run, bitch,” has nothing to do with 23 maturity but has everything to do with discourteous conduct and can have everything to do with 24 the officer’s state of mind, but state of mind is not a maturity issue. See Doc. No. 296-1. The 25 cited deposition testimony of Chapman does not in any way involve the “shoot your ass” alleged 26 comment, which appears to be the more important of the two statements. Further, Chapman’s 27 opinion about Pelayo’s state of mind appears to be an opinion that the “bitch” comment, which 28 was made right after Pelayo struck the felon, was indicative of Pelayo’s state of mind at the time 1 of the prior incident. Chapman did not opine that the “bitch” statement was relevant to assessing 2 Pelayo’s state of mind when Elkins was shot. The Court detects nothing about Chapman’s 3 deposition testimony that would warrant reconsideration at this time. 4 Fourth, Plaintiffs have not demonstrated that the Court erred under FRE 404(b) in 5 excluding evidence related to the prior incident. Plaintiffs point out that there are similarities 6 between this case and the prior incident. The Court agrees that there are similarities. Similarity is 7 required to show motive and intent. Charley, 1 F.4th at 647; Ayers, 924 F.2d at 1473. However, 8 Plaintiffs overlook each of the dissimilarities identified by the Court, as well as additional 9 dissimilarities identified in Pelayo’s opposition to this motion. Further, there was also a 10 materiality problem in that the key alleged statement, “you’re lucky I didn’t shoot your ass,” did 11 not clearly explain any actions taken by Pelayo on the prior incident and was made after all force 12 had been used, the felon had been secured, and the felon, Pelayo, and the detective were walking 13 out of the field.2 14 Fifth, the Court was not relying exclusively on the internal investigative report. The 15 investigative report was relevant for two reasons. The report found that there was no excessive 16 force, which undercut the assertion that Pelayo had a documented intolerance for suspects who 17 flee. Further, the report concluded that Pelayo acted appropriately except for using discourteous 18 language (not the “shoot your ass” statement). As explained in the prior order, the probative value 19 of Pelayo’s conduct during the prior incident was lessened. 20 Sixth, Plaintiffs have failed to demonstrate that a mini-trial would not be created if the 21 Court allowed evidence relating to the prior incident. Pelayo has indicated that the results of the 22 investigation, other witnesses, and significant evidence regarding the events of the prior incident 23 would be necessary to address Plaintiffs’ attempt to use his words during the incident. Pelayo also 24 points out in this briefing that he would introduce additional evidence that he has bene involved in 25 numerous foot chases over his entire carrier and has never had any complaints lodged against him 26 that are remotely close to the prior incident. All of this indicates that a significant amount of court 27 time would be taken up by witnesses, testimony, and evidence that is relevant only to evaluating 28 1 | whether Pelayo made the “shoot your ass” statement and the reasonableness of Pelayo’s actions 2 regarding the prior incident. In other words, it seems apparent that a mini-trial would result, and 3 is a real and substantial danger of jury confusion. Those dangers substantially outweigh any 4 | limited probative value that the statements or prior incident may have. 5 In sum, Plaintiffs have not shown any clear legal errors in the Court’s analysis, rather, they 6 | show disagreement, which is insufficient to warrant reconsideration. See Deerpoint, 400 7 |F.Supp.3d at 993; American States, 245 F.Supp.3d at 1227; Cunningham, 178 F.Supp.3d at 1003. 8 | This is the third time that the issue of the prior incident has been raised. In each instance, the 9 arguments made by Plaintiffs have been slightly different. Nevertheless, the Court concludes that 10 |the prior incident remains inadmissible under both FRE 403 and 404(b), as discussed in this order, 11 |the Court’s summary judgment order, and the Court’s order on the motions in limine. 12 13 ORDER 14 Accordingly, IT IS HEREBY ORDERED that Plaintiffs’ trial brief/motion for 15 |reconsideration (Doc. No. 296) is DENIED. 16 IT IS SO ORDERED. 1g |Dated: _May 23, 2022 —. 7 Zz : Z Cb Led — SENIOR DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28
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