Estate of Viera v. City of El Monte

267 F. App'x 568

Opinion

MEMORANDUM

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Plaintiffs complain that the district court refused to permit evidence that David Vi-era was unarmed when he was shot and killed by Lieutenant Hernandez. But this information has no bearing on whether the officer’s conduct was objectively reasonable for purposes of 42 U.S.C. § 1983, because the jury’s (and the officer’s) post hoc knowledge that Viera was unarmed would not have changed what the officer knew when he decided to use deadly force. See Jackson v. City of Bremerton, 268 F.3d 646, 651 (9th Cir.2001). Even if the evidence would somehow have been relevant to plaintiffs’ wrongful death claim, the district court did not abuse its discretion by excluding it under Fed.R.Evid. 403. The statements in defense counsel’s closing argument suggesting that Viera was armed were cured by the district court’s prompt instructions. See Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 1270-71 (9th Cir.2000) (strong presumption that the district court’s curative instructions cured any prejudicial effect).

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.