Sanderlin v. City of San Jose

Opinion

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 DERRICK SANDERLIN, et al., Case No. 5:20-cv-04824-BLF

8 Plaintiffs, ORDER REGARDING MOTIONS IN 9 v. LIMINE

10 CITY OF SAN JOSE, et al., [Re: Dkt. Nos. 165, 166, 167, 168, 172, 11 Defendants. 173, 174]

12 13 This is a civil rights action under 42 U.S.C. § 1983 and California’s Bane Act, brought by 14 Plaintiffs Derrick Sanderlin, Cayla Sanderlin, Breanna Contreras, Pietro di Donato, Adira 15 Sharkey, Joseph Stukes, and Vera Clanton (“Plaintiffs”) against Defendants City of San Jose, 16 Sergeant Lee Tassio, Officer Michael Panighetti, Officer Juan Avila, and Officer Jonathan 17 Marshall (“Defendants”). Plaintiffs bring suit for injuries sustained while participating in civil 18 rights demonstrations in response to the murder of George Floyd by Minneapolis police officer 19 Derek Chauvin. 20 The Court held the Final Pretrial Conference in this case on April 17, 2025, during which 21 the Court issued oral rulings on the Parties’ motions in limine. See Motions, Dkt. Nos. 165, 166, 22 167, 168, 172, 173, 174. The Court’s rulings on the motions in limine are summarized as follows. 23 I. PLAINTIFFS’ MOTIONS IN LIMINE 24 A. Plaintiffs’ Motion in Limine No. 1 to Preclude Admission of Images and Other 25 Media Depicting Violence, Officer Injuries, and Property Damage 26 In their first motion in limine, Plaintiffs seek an order excluding “images and other media 27 evidence depicting violence, officer injuries[,] and property damage.” Dkt. No. 172, Plfs.’ MIL 1 the plaintiffs engaged in violence or partook in property damage,” and that it is inflammatory in 2 light of the “magnified emotional impact” of “visuals of violence scenes.” Id. at 2; see also id. at 3 4–5. Plaintiffs also request that a limiting instruction be given if violence or property damage is 4 mentioned at trial. Id. at 2. 5 In response, Defendants argue that the evidence is relevant to the “totality of the 6 circumstances” analysis on section 1983 and Bane Act claims for Fourth Amendment violations, 7 since police officers “may rely on circumstances prior to and until their deployment of force . . . to 8 assess the risks posed” by the situation. Dkt. No. 186, Opp. to Plfs.’ MIL No. 1 at 1–2. 9 Defendants argue that this assessment may include “the actions of others surrounding or near the 10 person ultimately subjected to force.” Id. at 2. Thus, Defendants state that media records of 11 violence and/or property damage are “presumably relevant insofar as an officer experienced 12 them.” Id. at 3. Additionally, Defendants argue that this kind of media evidence is circumstantial 13 evidence of intent that bears upon First Amendment and Bane Act claims, as well as evidence of a 14 “clear and present danger” that might affect the exercise of First Amendment rights. Id. at 3–4. 15 The Court DENIES this motion in limine. Defendants are correct that the challenged 16 evidence is relevant. “Evidence is relevant if: (a) it has any tendency to make a fact more or less 17 probable than it would be without the evidence; and (b) the fact is of consequence in determining 18 the action.” Fed. R. Evid. 401. In this case, the remaining Fourth Amendment claims require an 19 objective inquiry “that asks whether an officer’s actions were reasonable in light of the 20 circumstances he confronted.” Villanueva v. California, 986 F.3d 1158, 1169 (9th Cir. 2021) 21 (citing Graham v. Connor, 490 U.S. 386, 397 (1989)). “Determining whether a particular use of 22 force was reasonable ‘requires a careful balancing of the nature and quality of the intrusion on the 23 individual’s Fourth Amendment interests against the countervailing governmental interests at 24 stake,” evaluating various factors including “(1) the severity of the crime at issue, (2) whether the 25 suspect posed an immediate threat to the safety of the officers or others[,] (3) whether he was 26 actively resisting arrest or attempting to evade arrest by flight, and any other exigent 27 circumstances that existed at the time of the arrest.” Id. (citing Graham, 490 U.S. at 396). As 1 officer. S.R. Nehad v. Browder, 929 F.3d 1125, 1132 (9th Cir. 2019) (citing Byrd v. Phoenix 2 Police Dep’t, 885 F.3d 639, 642 (9th Cir. 2018); Bryan v. MacPherson, 630 F.3d 805, 823 (9th 3 Cir. 2010)). The totality of the circumstances assessment can include the surrounding conditions 4 and the actions of others associated with person against whom force is ultimately used, see Nelson 5 v. City of Davis, 685 F.3d 867, 880–81 (9th Cir. 2012) (considering the threat posed by the 6 plaintiff’s associates as well as the plaintiff himself); see also Mattos v. Agarano, 661 F.3d 433, 7 450 (9th Cir. 2011), so the Court rejects Plaintiffs’ argument that the defendant officers’ 8 awareness of violence or property damage is not relevant unless it was being committed by a 9 plaintiff and at the precise time the force was used. 10 Likewise, the Court finds that the evidence may be relevant to Plaintiffs’ surviving Bane 11 Act and First Amendment claims. On the First Amendment claim, Mr. Sanderlin will need to 12 prove “that he was engaged in a constitutionally protected activity;” that Officer Panighetti’s 13 conduct would “chill a person of ordinary firmness from continuing to engage in the protected 14 activity;” and that “the protected activity was a substantial or motivating factor” in Officer 15 Panighetti’s conduct. Sanderlin v. Dwyer, 116 F.4th 905, 910–11 (9th Cir. 2024) (citing Index 16 Newspapers LLC v. U.S. Marshals Serv., 977 F.3d 817, 827 (9th Cir. 2020)). However, if 17 retaliatory animus “was not a but-for cause of the adverse action, [then] there was no violation of 18 [Sanderlin’s] constitutional rights.” Boquist v. Courtney, 32 F.4th 764, 778 (9th Cir. 2022). In 19 other words, there is no First Amendment violation where “the government officials would have 20 taken the same adverse action even in the absence of their animus or retaliatory motive arising 21 from the plaintiff’s speech,” id., so it is important to Defendants’ defense in this case to be able to 22 present circumstantial evidence demonstrating the reason(s) that the accused action was taken, see 23 Hines v. Gomez, 108 F.3d 265, 267–68 (9th Cir. 1997). On the various Bane Act claims, “the 24 egregiousness required by Section 52.1 is tested by whether the circumstances indicate the 25 arresting officer had a specific intent to violate the [plaintiff’s] right[s].” Reese v. Cnty. of 26 Sacramento, 888 F.3d 1030, 1043 (9th Cir. 2018) (emphasis added) (quoting Cornell v. City & 27 Cnty. of San Francisco, 17 Cal. App. 5th 766, 801 (2017), as modified (Nov. 17, 2017)). 1 defense against Plaintiffs’ attempts to establish specific intent to violate Plaintiffs’ rights— 2 particularly in light of Plaintiffs’ theory that vicarious liability under the Bane Act may be 3 predicated upon the conduct of an employee who is never identified by name. 4 Although the media and testimony challenged by this motion may present a modest danger 5 of prejudicial effect, the Court finds that the risk of prejudice does not substantially outweigh the 6 probative value. Plaintiffs’ Motion in Limine No. 1 is DENIED. That said, the audio 7 accompanying the following media will be excluded: 8 5/29 Highway 101 ABC7 Clip SJ405878 9 5/29 Protest Drone Footage SJ003741 10 11 If desired to further limit any risk of prejudice, Plaintiffs’ counsel may renew the request for a 12 limiting instruction at trial by drafting the desired language, sharing it with opposing counsel, and 13 requesting that the Court read the instruction to the jury at the appropriate time. 14 B. Plaintiffs’ Motion in Limine No. 2 to Preclude Testimony or Evidence Regarding 15 Protestors on the Freeway 16 In their second motion in limine, Plaintiffs seek an order excluding “testimony or 17 admission of images and other media evidence relating to protestors, including Plaintiffs, walking 18 on the freeway or highway, including 101 and 280.” Dkt. No. 173, Plfs.’ MIL No. 2 at 2. 19 Plaintiffs argue that such imagery is irrelevant to Plaintiffs’ claims, because any instance of force 20 cannot be explained by Plaintiffs’ earlier presence on the freeway. Id. at 2–4. In addition, 21 Plaintiffs argue that the media evidence is excludable under Federal Rule of Evidence 403, 22 because the visual presentation of the scenes on the highway could incite inflammatory emotions 23 among the members of the jury. Id. at 2. 24 Defendants argue that the evidence is relevant for five reasons. First, Defendants argue 25 that the evidence is relevant to undermining Plaintiffs’ credibility because it contradicts Plaintiffs’ 26 assertion that they are law-abiding, peaceful protestors. See Dkt. No. 187, Opp. to Plfs.’ MIL No. 27 2 at 1. Second, Defendants argue that the protest on the freeway on May 29, 2020, which occurred 1 finder of fact must look at the totality of the circumstances when evaluating the objective 2 reasonableness requirement in determining whether an officer used excessive force. Id. at 2–3. 3 Third, Defendants argue that the media evidence is relevant to show the specific intent element of 4 Plaintiffs’ Bane Act claims, as well as the retaliatory animus element under the First Amendment. 5 Id. at 3–4. Fourth, Defendants argue that the evidence is independently relevant to Defendants’ 6 ability to demonstrate the existence of a clear and present danger that supported dispersing the 7 protestors. Id. at 4–5. Last, Defendants argue that the relevance of the media evidence created on 8 May 29, 2020 extends beyond that date, because police officers’ prior experiences can be a 9 component of the totality of circumstances assessment. Id. at 5. 10 First, the Court finds that the challenged evidence is potentially relevant to impeach 11 Defendants’ credibility. “Impeachment by contradiction permits courts to admit extrinsic 12 evidence that specific testimony is false, because contradicted by other evidence[.]” United States 13 v. Castillo, 181 F.3d 1129, 1132 (9th Cir. 1999); see 28 Wright & Miller, Federal Practice & 14 Procedure § 6119 (2d ed. 2025). The admissibility of impeachment by contradiction evidence 15 should be analyzed under Federal Rules of Evidence 403 and 607. K.J.P. v. Cnty. of San Diego, 16 621 F. Supp. 3d 1097, 1148 (S.D. Cal. 2022). Here, Defendants anticipate that Plaintiffs would 17 assert that they were “law abiding, peaceful protestors.” Opp. to Plfs.’ MIL No. 2 at 1. By 18 contradiction, the evidence of highway protests could show that Plaintiffs, knowing that it was 19 unlawful to do so, nevertheless entered the highway to protest. Id. Of course, the presentations at 20 trial will ultimately determine whether evidence of the highway protests is relevant and admissible 21 for this purpose. 22 Next, the Court addresses the relevance of the evidence to Plaintiffs’ Fourth Amendment 23 claims. Again, the excessive force standard is laid out in Graham v. Connor, 490 U.S. 386 (1989). 24 Under the Graham factors analysis, whether a police officer’s use of force was “‘objectively 25 reasonable’ [is determined] in light of the facts and circumstances confronting [the officer].” Id. at 26 397. Reasonableness is assessed by balancing “the nature and quality of the intrusion on the 27 individual’s Fourth Amendment interests” against “the countervailing government interests at 1 (citation omitted). “To do so, we consider the type and amount of force inflicted in tandem with 2 (1) the severity of the crime at issue, (2) whether the suspect posed an immediate threat to the 3 safety of the officers or others, and (3) whether the suspect was actively resisting arrest or 4 attempting to evade arrest by flight.” Id. (internal alterations omitted). As discussed above, supra 5 section I.A, Defendants’ knowledge of the highway protest could potentially inform their “totality 6 of the circumstances” assessment at the scene where force was used, so footage and testimony 7 relating to the highway protests is relevant to the Fourth Amendment claims. 8 Likewise, for similar reasons as those discussed in section I.A, the Court finds that the 9 challenged evidence is relevant to the analyses of Plaintiffs’ First Amendment and Bane Act 10 claims. Footage and testimony related to the highway protests may help inform issues including: 11 whether a police officer had retaliatory animus, whether the officer “would have taken the same 12 adverse action even in the absence of their animus or retaliatory motive arising from the plaintiff’s 13 speech,” Boquist, 32 F.4th at 778, and “whether the circumstances indicate the [] officer had a 14 specific intent to violate the [plaintiff’s] right[s],” Reese, 888 F.3d at 1043. 15 Finally, the Court finds that that the probative value of the evidence outweighs the risk of 16 any prejudicial effect. As discussed above, the evidence of the highway protest is highly relevant 17 to Plaintiffs’ credibility and to various elements of, and defenses to, Plaintiffs’ claims. While the 18 Court acknowledges that some of the videos of protest activities at Highway 101 and/or 280 on 19 May 29, 2020 may be inflammatory insofar as the videos depict violence and injuries, this risk of 20 prejudice does not substantially outweigh the probative value of the evidence. Therefore, 21 Plaintiffs’ request to exclude testimony and media evidence of the highway protest is DENIED. 22 C. Plaintiffs’ Motion in Limine No. 3 to Exclude the Use or Admission of Evidence Relating to Defendant Officers’ Character or Reputation 23 24 In their third motion in limine, Plaintiffs ask the Court to exclude “any and all evidence 25 regarding defendant officers’ character or reputation within the police department and the San Jose 26 community.” Dkt. No. 174, Plfs.’ MIL No. 3 at 2. Plaintiffs anticipate that Defendants “may seek 27 to introduce evidence . . . relate[d] to [their] certifications and conduct as [] police officer[s], on 1 “Officers’ adequate or satisfactory conduct on other occasions” and “Officers’ general character or 2 police commendations.” Id. at 2–3. Plaintiffs argue that such evidence would be improper 3 propensity evidence under Federal Rule of Evidence 404(a)(1) if used to show how the Officers 4 likely behaved at the time of the events that form the basis for this lawsuit. Id. 5 In their Qualified Non-Opposition, Defendants accept that character evidence is generally 6 inadmissible in civil rights cases. See Dkt. No. 188, Qual. Non-Opp. to Plfs.’ MIL No. 3 at 2. As 7 a result, Defendants do not oppose Plaintiffs’ motion “to the extent that it seeks to exclude 8 evidence of officers’ character or reputation within the SJPD and wider community and evidence 9 pertaining to officers’ reputation and/or disposition for honesty, temperance, or peacefulness.” Id. 10 However, Defendants oppose Plaintiffs’ motion to the extent that “Plaintiffs seek[] to exclude 11 evidence admissible for purposes ‘such as proof of motive, opportunity, intent, preparation, plan, 12 knowledge, identity, or absence of mistake or accident” under Federal Rule of Evidence 404(b). 13 Id. (emphasis in original). Defendants argue that it is “material to the [their] defense . . . to be able 14 to present circumstantial evidence demonstrating the reason(s) that the accused action was taken 15 (or not).” Id. Thus, Defendants argue that they “should be allowed to affirmatively negate and 16 present any circumstantial evidence that they had [a] specific intent or a retaliatory motive,” or, at 17 a minimum, show that “their actions . . . during the same day or shift with respect to other 18 protestors and similar situations [] negate a ‘bad mind.’” Id. at 3. 19 The Parties are correct that “[c]haracter evidence is [] not admissible in a civil rights case,” 20 Gates v. Rivera, 993 F.2d 697, 700 (9th Cir. 1993), when offered to “prove that on a particular 21 occasion the person acted in accordance with the character or trait,” Fed. R. Evid. 404(a)(1). 22 However, evidence of “[c]rimes, [w]rongs, or [a]cts” may be “admissible for another purpose, 23 such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of 24 mistake, or lack of accident.” Fed. R. Evid. 404(b)(2); cf. Gates, 993 F.2d at 700 (indicating that 25 it was improper to permit the defendant officer “to testify that in his sixteen and one-half years as 26 a police officer, he had not shot anyone,” because “by [his] own admission, intent was not an 27 issue”). 1 introduced for improper propensity purposes under Federal Rule of Evidence 404(a)(1). However, 2 Plaintiffs appear to assert that “certifications and conduct as [] police officer[s]” are excludable on 3 this basis. Plfs.’ MIL No. 3 at 2. For clarity, the Court notes that evidence of officer certifications 4 or conduct is not necessarily improper character evidence, since, for example, certifications might 5 instead provide evidence of the defendant officers’ training or background. 6 The Court GRANTS the motion in limine insofar as it seeks to exclude pure character 7 evidence offered to show that the defendant officers acted in accordance with a particular 8 character trait on the days at issue. Plaintiffs may object at trial to specific evidence that they 9 believe Defendants are seeking to admit for improper propensity purposes, at which point the 10 Court will consider whether the evidence is being offered for a permissible purpose under Federal 11 Rule of Evidence 404(b), such as to prove motive or intent. 12 II. DEFENDANTS’ MOTIONS IN LIMINE 13 A. Defendants’ Motion in Limine No. 1 to Exclude Evidence of Dismissed Defendants 14 and Claims 15 In their first motion in limine, Defendants seek an order excluding “all references, 16 arguments, and evidence of the following”: 1. All acts, omissions, and conduct of Chief Edgardo Garcia arising from the allegations in 17 the Third Amended Complaint (ECF No. 83) or from those facts determined in the Court’s 18 order on summary judgment (ECF No. 122); 2. All acts, omissions, and conduct of Jared Yuen arising from the allegations in the Third 19 Amended Complaint (ECF No. 83) or from those facts determined in the Court’s order on summary judgment (ECF No. 122); 20 3. All acts, omissions, and conduct of Captain Jason Dwyer arising from the allegations in the Third Amended Complaint (ECF No. 83), from those facts determined in the Court’s 21 order on summary judgment (ECF No. 122), and from those facts found in the Ninth 22 Circuit’s opinion (ECF No. 133); and 4. All acts, omissions, and conduct of Jared Yuen, Lee Tassio, Ronnie Lopez, Steven 23 Gaona, Jonathan Marshall, Aiden Guy, Tyler Moran, Baasil Khan, [Jonathan] Byers, and Brian Matchett that relate to plaintiff Shante Thomas’s dismissed claims (ECF No. 83 at ¶¶ 24 125–136). 25 Dkt. No. 165, Defts.’ MIL No. 1 at 1. Defendants argue that “[e]vidence related to claims 26 dismissed at summary judgment has become irrelevant.” Id. at 2 (citing K.J.P., 621 F. Supp. 3d at 27 1132, and Van v. Language Line Servs., Inc., No. 14-cv-3791, 2016 WL 3566980, at *5 (N.D. Cal. 1 for the conduct of” Officer Yuen, Chief Garcia, and Captain Dwyer, since each has now been 2 dismissed from the case. Id. at 3. Moreover, they argue that the “weight of authority . . . [holds] 3 that there is no supervisory liability for Bane Act claims,” so any evidence of supervisory conduct 4 of Chief Garcia or Captain Dwyer is not relevant. Id. at 5 (quoting Est. of Chivrell v. City of 5 Arcata, 694 F. Supp. 3d 1218, 1232 (N.D. Cal. 2023)). 6 Plaintiffs “do not oppose Defendants’ motion in limine number 1 and do not intend to 7 allege wrongdoing against the former defendants or discuss the dismissed claims.” Dkt. No. 189, 8 Opp. to Defts.’ MIL No. 1 at 2. The Court therefore GRANTS Defendants’ unopposed Motion in 9 Limine No. 1. 10 B. Defendants’ Motion in Limine No. 2 to Exclude Evidence of Unidentified Officers or Employees 11 12 In their second motion in limine, Defendants seek an order excluding all references, 13 arguments, and evidence of “[a]ll acts, omissions, and conduct of officers, employees, or agents of 14 the City of San José who were not named or specifically identified in the Third Amended 15 Complaint.” Dkt. No. 166, Defts.’ MIL No. 2 at 1. Defendants argue that Plaintiffs Cayla 16 Sanderlin, Breanna Contreras, Pietro di Donato, Adira Sharkey, and Joseph Stukes bring vicarious 17 Bane Act claims against the City of San Jose, yet each of these Plaintiffs is unable to identify any 18 particular officer who harmed them. Id. at 2. Defendants say that “[a]ssigning any malice to 19 unidentified employees of the City . . . demands improper speculation” and prejudices the City’s 20 defense by depriving it of “any meaningful opportunity to present evidence regarding the totality 21 of the circumstances as known to the actor” or any available affirmative defenses. Id. at 3. 22 Defendants also argue that Plaintiffs should be precluded from amending their complaint at this 23 late stage in order to identify or join new defendants. Id. at 4–5. 24 Plaintiffs respond that “a reasonable jury could use direct and circumstantial evidence to 25 conclude by a preponderance of the evidence that it was a San Jose police officer who fired a 26 projectile that hit each group [plaintiff]” and that “[v]icarious liability applies whether or not the 27 employee is a defendant or even identified by name.” Dkt. No. 190, Opp. to Defts.’ MIL No. 2 at 1 were “integral participants under Boyd v. Benton County, 374 F.3d 773 (9th Cir. 2004),” and that 2 “a municipality may be liable even if liability cannot be ascribed to a single individual officer.” 3 Id. at 3 (quoting Gibson v. County of Washoe, 290 F.3d 1175, 1186 n.7 (9th Cir. 2002)). 4 Under California law, “[a] public entity is liable for injury proximately caused by an act or 5 omission of an employee of the public entity within the scope of his employment if the act or 6 omission would, apart from this section, have given rise to a cause of action against that 7 employee.” Cal. Gov’t Code § 815.2(a). Contrary to Defendants’ arguments, however, the 8 legislative comments accompanying this provision indicate that “it will not be necessary in every 9 case to identify the particular employee upon whose act the liability of the public entity is to be 10 predicated.” Id., Leg. Comm. Comments—Senate. “All that will be necessary will be to show 11 that some employee of the public entity tortiously inflicted the injury in the scope of his 12 employment under circumstances where he would be personally liable.” Id.; accord Becerra v. 13 Cnty. of Santa Cruz, 68 Cal. App. 4th 1450, 1462 n.5 (1998) (“Identification of a specific 14 employee tortfeasor is not essential to County liability under section 815.2.”). 15 Thus, the Court understands the statement in Defendants’ case Koussaya v. City of 16 Stockton, 54 Cal. App. 5th 909 (2020)—that “in order for vicarious public entity liability attach, a 17 public employee, either named as a defendant or at least ‘specifically identified’ by the plaintiff, 18 must have engaged in an act or omission giving rise to that employee’s tort liability,” id. at 944 19 (quoting Munoz v. City of Union City, 120 Cal. App. 4th 1077, 1113 (2004))—to mean what the 20 legislative comment suggests: a plaintiff must be able to “show that some employee of the public 21 entity tortiously inflicted the injury in the scope of his employment under circumstances where he 22 would be personally liable,” Cal. Gov’t Code § 815.2(a), Leg. Comm. Comments—Senate, 23 although he need not ultimately prove who, exactly, that employee was. See Perez v. City of 24 Huntington Park, 7 Cal. App. 4th 817, 820 (1992) (“The plaintiff may be unable to identify which 25 employee committed the wrongful act, but this is not fatal to the employer’s liability, if the 26 evidence establishes that some employee in the scope of employment committed the wrongful 27 act.”); Zelaya v. Cnty. of Los Angeles, 628 F. App’x 535, 537 (9th Cir. 2016) (“Plaintiff is not 1 County.” (citing C.A. v. William S. Hart Union High Sch. Dist., 53 Cal. 4th 861, 872 (2012); 2 Perez, 7 Cal. App. 4th at 820–22)). 3 For that reason, the Court concludes that Defendants’ requested exclusion is too broad. 4 Plaintiffs were not required to join or specifically identify by name the City employees or agents 5 on whose conduct liability is predicated, and liability for unconstitutional conduct can potentially 6 be based on a theory of “integral participation.” See Peck v. Montoya, 51 F.4th 877, 889 (9th Cir. 7 2022) (“We have not previously ‘define[d] the minimum level of involvement for liability under 8 the integral-participant doctrine,’ but our precedents have permitted liability in two situations.” 9 (citation omitted)). That said, “a plaintiff c[an] not hold an officer liable because of his 10 membership in a group without a showing of individual participation in the unlawful conduct.” 11 Jones v. Williams, 297 F.3d 930, 935 (9th Cir. 2002) (citing Chuman v. Wright, 76 F.3d 292, 294 12 (9th Cir. 1996)). Likewise, “mere speculation that defendants acted out of retaliation is not 13 sufficient.” Wood v. Yordy, 753 F.3d 899, 905 (9th Cir. 2014). 14 In light of the foregoing analysis, the Court DENIES Defendants’ Motion in Limine No. 2. 15 The City has long been a defendant in this action, and it may be held vicariously liable for an 16 injury tortiously inflicted by an employee acting in the scope of his employment under 17 circumstances where he would be personally liable even if a plaintiff is not able to specifically 18 identify that employee by name. However, as will be discussed in further detail in the analysis 19 regarding Defendants’ Motion in Limine No. 4, infra, Plaintiffs may not speculate as to any facts, 20 including from which source a projectile originated or why a plaintiff was struck with a projectile. 21 C. Defendants’ Motion in Limine No. 3 to Exclude Opinions and Testimony of Dr. Edward Maguire, Plaintiffs’ Police Practices Expert 22 23 In their third motion in limine, Defendants seek an order excluding “[a]ll opinions, 24 contents, assumptions, and factual bases” in the expert report of Plaintiffs’ expert Dr. Edward 25 Maguire, PhD, “[a]ll opinions on the use of force against and the causes of injuries of plaintiffs 26 Derrick Sanderlin, Cayla Sanderlin, Breanna Contreras, Pietro di Donato, Adira Sharkey, Vera 27 Clanton, and Joseph Stukes,” and “[a]ll evidence or facts, and their substance, in connection with 1 Defendants argue that, because all Monell claims were resolved in favor of the City on 2 summary judgment, Dr. Maguire “should be prohibited from testifying on Monell-like opinions.” 3 Id. at 1. For example, Dr. Maguire offers several opinions regarding whether the San Jose Police 4 Department’s practices, policies, training, or response to the George Floyd protests fell below 5 generally accepted standards for police practices. See id. at 1–2. Defendants argue that such 6 opinions “impose[] a standard, by expert fiat, that does not exist” and that “[d]epartment-wide 7 evidence has limited, if any, value for an individual officer’s use of force.” Id. at 3. Further, 8 because Dr. Maguire has expressed that he does not have an opinion on other Plaintiffs’ injuries, 9 Defendants argue that Dr. Maguire has only a single admissible opinion: “whether Panighetti’s use 10 of force against Derrick Sanderlin was within SJPD policy on the assumption that the groin was 11 targeted.” Id. at 4 (emphasis in original). However, Defendants challenge the “two sub-opinions” 12 encapsulated in this opinion—“that lethal force would not have been warranted and that Panighetti 13 intentionally targeted this area”—saying that Dr. Maguire does not substantiate the basis for these 14 opinions, and that therefore Dr. Maguire’s testimony related to Mr. Sanderlin should be excluded. 15 Id. at 5. 16 In opposition, Plaintiffs argue that Dr. Maguire’s report “may aid the jury to determine a 17 fact in this case”—specifically, whether Officer Panighetti’s use of the 40mm launcher “was a 18 high level of force, including potentially lethal force.” Dkt. No. 191, Opp. to Defts.’ MIL No. 3 at 19 2. Plaintiffs also argue that “Defendants put at issue . . . the question of what other alternative 20 means could have been used to disburse the crowd, short of projectile impact weapons.” Id. 21 Plaintiffs initially presented Dr. Maguire to provide expert testimony in support of 22 Plaintiffs’ Monell claims. See Dkt. No. 113 at 18–19. Now that those Monell claims have been 23 dismissed, Defendants argue that Dr. Maguire’s opinions are “irrelevant, prejudicial, improper 24 character evidence, confusing, speculative, and time-consuming.” Defts.’ MIL No. 3, Notice of 25 Motion. In other words, Defendants make their motion in limine pursuant to Federal Rules of 26 Evidence 401, 403, and 404. Under Rule 401, “[e]vidence is relevant if: (a) it has any tendency to 27 make a fact more or less probable than it would be without the evidence; and (b) the fact is of 1 excluded if “its probative value is substantially outweighed by a danger of one or more of the 2 following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, 3 or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. And under Rule 404, 4 “[e]vidence of a person’s character or character trait is not admissible to prove that on a particular 5 occasion the person acted in accordance with the character or trait.” Fed. R. Evid. 404(a)(1). 6 Given that the Monell claims are no longer live and any remaining City liability must be 7 based upon vicarious liability for the wrongful conduct of an individual City employee or agent, 8 the Court agrees with Defendants that Dr. Maguire’s testimony, which was specifically targeted to 9 Plaintiffs’ Monell claims, is largely irrelevant. This conclusion is bolstered by the fact that 10 Plaintiffs struggled at the hearing on this motion in limine to identify which specific portions of 11 Dr. Maguire’s report remain relevant to Plaintiffs’ remaining claims. Moreover, the Court finds 12 that the potential probative value of any testimony from Dr. Maguire as to whether the San Jose 13 Police Department’s practices, policies, or response to the protests adhered to “nationally accepted 14 police standards and practices” that are not imposed upon SJPD’s officers would be substantially 15 outweighed by the risk of confusing the issues or misleading the jury. Indeed, it seems highly 16 likely that much time would be unnecessarily expended in trying to explain to the jury what 17 limited use they could make of any testimony from Dr. Maguire, so as to ensure that they would 18 not inadvertently “attribute the collective failings of the SJPD to any individual officer” or hold an 19 individual officer constitutionally liable for the conduct of others without a sufficient showing of 20 that officer’s individual involvement. See Defts.’ MIL No. 3 at 3. And based upon certain quotes 21 highlighted by Plaintiffs in their opposition brief, the Court is further concerned that Dr. 22 Maguire’s testimony might run afoul of the usual rules against offering speculation and/or legal 23 conclusions. See United States v. Holguin, 51 F.4th 841, 865 (9th Cir. 2022) (“Under Rule 701, a 24 witness may not testify based on speculation.” (quoting United States v. Perez, 962 F.3d 420, 435 25 (9th Cir. 2020)) (internal quotations omitted)); Hyer v. City & Cnty. of Honolulu, 118 F.4th 1044, 26 1059 (9th Cir. 2024) (stating that expert may not “attempt to instruct the jury on the law, or how to 27 apply the law to the facts of the case” (quoting United States v. Diaz, 876 F.3d 1194, 1199 (9th 1 Because Plaintiffs’ counsel was unable to identify specifically which opinions from Dr. 2 Maguire remain relevant now that there are no surviving Monell claims, and whether that 3 testimony falls within the boundaries of Dr. Maguire’s expertise as disclosed to Defendants, the 4 Court GRANTS Defendants’ Motion in Limine No. 3. Dr. Maguire’s testimony shall be excluded. 5 However, the Court will permit Plaintiffs to submit a brief identifying the specific portions of Dr. 6 Maguire’s report that remain relevant and fall within the area(s) of expertise listed on Dr. 7 Maguire’s expert disclosure on or before April 25, 2025. If Plaintiffs submit such a supplemental 8 brief, Defendants may file a response, and the Court will revisit this ruling to determine whether 9 any appropriately limited testimony from Dr. Maguire may be admitted. 10 D. Defendants’ Motion in Limine No. 4 to Exclude Testimony and Argument of Certain Plaintiffs 11 12 In their fourth motion in limine, Defendants seek an order excluding: 13 1. From Breanna Contreras, all testimony, opinion, belief, or argument that any SJPD officer employee targeted or aimed at her; the inference or belief that the projectile that 14 struck her originated from unidentified officers; on the type of projectile; and the state of mind of any officer; and 15 2. From Pietro di Donato, Joseph Stukes, and Adira S[h]arkey, all testimony, opinion, belief, or argument that any SJPD officer employee targeted or aimed at them; the 16 inference or belief that the projectile that struck them originated from unidentified officers; 17 on the type of projectile; and the state of mind of any officer. 18 Dkt. No. 168, Defts.’ MIL No. 4. Defendants argue that “Breanna Contreras testified twice . . . 19 that she does not know who or what injured her at the protests on May 29, 202[0].” Id. at 1. 20 Accordingly, Defendants say that she “should be prohibited from testifying that she was struck by 21 a projectile originating from an SJPD officer, an ultimate inference of fact,” and should instead be 22 limited to testifying about “what she perceived or witnessed.” Id. at 2 (emphasis in original). 23 Similarly, Defendants argue that Plaintiffs di Donato, Stukes, and Sharkey each do not know 24 which officer, if any, shot the projectile that struck them, and thus should be limited to testifying 25 about “their perceptions of the events or injuries, but precluded from arguing, testifying, or 26 suggesting that any officer fired, aimed at, or targeted them (e.g., versus being struck with a 27 projectile from the direction of the police).” Id. at 3–4. 1 limine. Rather, Plaintiffs offer various principles of law related their theory of the case, without 2 specifically arguing that each Plaintiff should be able to offer the testimony that Defendants seek 3 to exclude. For example, Plaintiffs respond that “the specific intent required for Bane Act 4 [liability] is ‘reckless disregard[,]’ which can be shown by circumstantial evidence.” Dkt. No. 5 192, Opp. to Defts.’ MIL No. 4 at 2. Therefore, Plaintiffs say, they “do not need to prove any 6 officer[’]s subjective intent.” Id. Plaintiffs also reiterate their argument that Plaintiffs need not 7 specifically identify by name which officer injured a given plaintiff in order for vicarious liability 8 to attach. Id. at 2–4. 9 As previously discussed, see supra section II.B, Plaintiffs are not required to identify the 10 officers upon whose conduct City liability is based by name in order to establish vicarious liability 11 against the City. See Zelaya, 628 F. App’x at 537. And it is also true that Bane Act “specific 12 intent” may be established by showing that the actor proceeded in “[r]eckless disregard of the 13 ‘right at issue.’” Cornell, 17 Cal. App. 5th at 803–04. However, these points are disconnected 14 from Defendants’ motion. 15 Defendants’ motion, at base, concerns the matter of speculative testimony. Under Federal 16 Rule of Evidence 701, opinion testimony by lay witnesses is “testimony in the form of an opinion 17 . . . that is (a) rationally based on the witness’s perception; (b) helpful to clearly understanding the 18 witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or 19 other specialized knowledge within the scope of Rule 702.” Fed. R. Evid. 701. “Under Rule 701, 20 a witness may not testify based on speculation.” Holguin, 51 F.4th at 865 (emphasis added) 21 (quoting Perez, 962 F.3d at 435) (internal alterations omitted); see Karam v. City of Burbank, 352 22 F.3d 1188, 1194 (9th Cir. 2003) (“Karam’s speculation as to Miranda’s improper motive does not 23 rise to the level of evidence sufficient to survive summary judgment.”). 24 Thus understood, Defendants’ Motion in Limine No. 4 is GRANTED. Plaintiffs may 25 testify based on their own perceptions—such as what they personally saw and/or heard—but they 26 may not speculate as to what item struck them, from where it originated, or any intent or animus 27 on the part of a City employee accused of interfering with their rights. 1 III. CLARIFICATION REGARDING CAYLA SANDERLIN’S CLAIMS AT TRIAL 2 Leading up to the final pretrial conference, the Parties informed the Court of their dispute 3 over whether Plaintiff Cayla Sanderlin has a surviving Bane Act claim. She does not. At 4 summary judgment, the Court determined that Ms. Sanderlin was not seized, and that she failed to 5 show a genuine dispute of material fact as to whether there was an unreasonable use of force 6 against her. Dkt. No. 122 at 16–17. Accordingly, summary judgment was resolved against her on 7 her Fourth Amendment claim, so she does not have a surviving Bane Act claim based on an 8 alleged Fourth Amendment violation. Moreover, the Parties’ Joint Pretrial Conference Statement 9 states that all of the Bane Act claims are based upon alleged underlying Fourth Amendment 10 violations. Dkt. No. 204 at 5–6. This statement of the remaining claims became binding upon the 11 Parties in governing the course at trial when Court issued its order on the Joint Pretrial Conference 12 Statement on April 16, 2025. See id. Thus, because Ms. Sanderlin’s Fourth Amendment claim 13 had already been rejected, she does not have a Bane Act claim to present at trial. 14 IV. ORDER 15 For the foregoing reasons, IT IS HEREBY ORDERED that: 16 1. Plaintiffs’ Motion in Limine No. 1 is DENIED. However, the audio accompanying 17 SJ405878 and SJ003741 will be excluded. 18 2. Plaintiffs’ Motion in Limine No. 2 is DENIED. 19 3. Plaintiffs’ Motion in Limine No. 3 is GRANTED as to character evidence offered for 20 propensity purposes. The Court DEFERS ruling on whether specific challenged 21 evidence is admissible under Rule 404(b). 22 4. Defendants’ Motion in Limine No. 1 is GRANTED. 23 5. Defendants’ Motion in Limine No. 2 is DENIED. 24 6. Defendants’ Motion in Limine No. 3 is GRANTED. If Plaintiffs submit a brief 25 identifying the specific portions of Dr. Maguire’s report that remain relevant and fall 26 within the area(s) of expertise listed on Dr. Maguire’s expert disclosure by April 25, 27 2025, the Court will revisit this ruling once Defendants have had an opportunity to 1 7. Defendants’ Motion in Limine No. 4 is GRANTED. 2 8. Plaintiff Cayla Sanderlin does not have a surviving Bane Act claim. 3 4 IT IS SO ORDERED. 5 6 || Dated: April 23, 2025 ’ fe LABSON FREEMAN 8 United States District Judge 9 10 11 a 12

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