Preview
ROB BONTA
Attorney General of California
2 K.R1ST1N M . D A I L Y
Supervising Deputy Attorney General
3 JAMES F. CURRAN
Deputy Attorney General FfLED/EHDORSIED
4 State Bar No. 142041
5
1300 I Street, Suite 125
P.O.-Box 944255
MAY 2 0 2021
Sacramento, CA 94244-2550
6 Telephone: (916) 210-61 13 By:. S. Cade
Deputy Clerk
Fax: (916)324-5567
7 E-mail: James.Curran@doj.ca.gov
Attorneys for Defendant
8 California Highway Patrol
,9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SACRAMENTO
12
.13
DAVID RIDGE, CaseNo. 34-2019-00265393
. 14
Plaintiff DECLARATION OF JAMES F. CURRAN
15 IN SUPPORT OF DEFENDANT
V. CALIFORNIA HIGHWAY PATROL'S
16 OPPOSITION TO PLAINTIFF'S
MOTION TO COMPEL ANSWERS AT
17 THE CALIFORNIA HIGHWAY PATROL; DEPOSITION OF MATTHEW STOVER
and DOES 1-100, inclusive, AND FOR SANCTIONS
18
Defendants. Date: June 3, 2021
19 Time: l:30p:m.
Dept: 53
20 Judge: Hon. Shama H; Mesiwala
Trial Date: None
21 Action Filed: September 23, 2019
22 I, James F. Curran, am an attorney licensed to practice law in all courts of the State of
23 California. I ain a deputy attorney general and counsel of record for Defendant California
24 Highway Patrol (CHP) in this case. I have analyzed the pleadings and documents relevant to this
25 lawsuit, and I defended the deposition of Captain Matthew Stover. 1 therefore have personal
.26 knowledge of the matters described below, and could competently testify to their truth if called
27 upon to do so.
28
Declaratioh of James F. Curran in Support of Opposition to MTC Answers at Deposition (34-2019-00265393)
2. Attached as Exhibit A are true copies of excerpts of the transcript of the deposition of
2 Matthew Stover, taken on February 25, 2021.
3 3. Attached as Exhibit B is a copy of the case of Sanchez v. Jiles (CD.Cal. 2012) 2012 WL
4 13005996.
5 4. Attached as Exhibit'C is a copy ofthe case of Bey v. U.S. Bank(C,D. Cal. 2010) 2010 ,
6 WL 11596165.
7 5. I have spent eight (8) hours reviewing, and preparing CHP's opposition to, this motion.
8 The Employment and Administrative Mandate Section of the California Attorney General's
9 Office, to which I am assigned; charges its client agencies, including CHP, $220 per hour for
10 legal services. I respectfully submit this is a reasonable and less than customary charge for these
11 services. 1 anticipate I will spend approximately two (2) additional hours reviewing Plaintiffs
12 reply to CHP's opposition and preparing for and attending the hearing on this motion. Therefore,
13 1 anticipate CHP will incur attorney fees of $2,200 for the review of this motion and Plaintiffs
14 reply papers, for preparation of this opposition, my declaratioh and proposed order, and for oral
15 argument.
16 I declare under penalty of perjury under the laws of the State of California that the
17 foregoing is true and correct. Executed on May 19, 2021 at Sacramento, California.
18
19
James F. Curran
20
21
22
SA2019106238
23 35122793.docx
24
25
26
27
28
Declaration of James F. Curran in Support of Opposition to MTC Answers at Deposition (34-2019-00265393)
EXHIBIT A
DEPOSITION OF CALIFORNIA PATROL
February 25, 2021
1 SUPERIOR COURT OF CALIFORNIA
2 COUNTY.OF SACRAMENTO
^3
4
5 DAVID RIDGE, a n i n d i v i d u a l ,
6 Plaintiff,
7 vs . No .
34-2019-00265393
8 THE CALIFORNIA HIGHWAY PATROL;
a n d DOES 1 - 1 0 0 , i n c l u s i v e ,
9
Defendants.
10
11
12
13 VIDEOCONFERENCE DEPOSITION OF
14 CALIFORNIA HIGHWAY PATROL CAPTAIN IVIATTHEW STOVER
15
16 Thursday, F e b r u a r y 25, 2021
17 1:36p.m.
18
19
20
21
22
23
24
25 REPORTED BY: VALERYANNA SKIPPER, GSR NO. 9 86 8
CALDEP
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DEPOSITION OF CALIFORNIA PATROL
February 25, 2021
1 APPEARANCES
2
3 FOR PLAINTIFF:
4 MAYALL HURLEY
BY: JOHN P. BRISCOE, ATTORNEY AT LAW
5 jbriscoe@mayallaw.com
2453 G r a n d C a n a l B o u l e v a r d
6 S t o c k t o n , C a l i f o r n i a 95207
(209),477-3833
7 '
8
9
10 FOR DEFENDANTS
11 CALIFORNIA DEPARTMENT OF JUSTICE
BY: JAMES F. CURRAN, DEPUTY ATTORNEY GENERAL
12 James.CurranOdoj.ca.gov
1300. I S t r e e t
13 S a c r a m e n t o , C a l i f o r n i a 95814
(916) 210-6113
14
15
16
17
18'
19
20
21
22
23
24
25
CALDEP
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DEPOSITION OF CALIFORNIA PATROL
February 25, 2021
1 handled under a new u n i t -- a d i f f e r e n t u n i t who's
2 h a n d l i n g h i s i n j u r y case. During t h i s time I was .
3 i n t e r a c t i n g w i t h -- w i t h O f f i c e r Ridge every time I
4 r e c e i v e d i n f o r m a t i o n o r he needed some i n f o r m a t i o n . So
5 we i n t e r a c t e d and t a l k e d about the process and what t o
6 expect o r where t o go now o r who t o t a l k t o .
7 BY MR. BRISCOE:
(Is" jQ^^^ ever express an . o p i n i o n one way o r
ano^the^r 'as' tq^ y h e t h e r _0f f^icer_^_Ridge^_should' be ai;lgv/ed_ to)
wear-the vest?')
K ;' *_;'A,._ I n^ve'r _expressed_ my o p i n i o j i , Jn^
12 Q. . D i d anybody ever ask you f o r your o p i n i o n ?
13 A. No, n o t t h a t I r e c a l l .
14 Q. D i d you make any d e c i s i o n s r e g a r d i n g how t o
15 accommodate O f f i c e r Ridge?
16 MR. CURRAN: Objection. Vague and ambiguous.,
17 THE WITNESS: I would have t o say no. I just
18 f a c i l i t a t e d the information.
19 BY MR. BRISCOE:
20 Q. Now, you p r e v i o u s l y s a i d t h a t t h e request f o r
21 accommodation -- which i s c a l l e d a 163,. c o r r e c t ?
22 A. Yes,•sir.
23 Q. That was sent t o EEO, which i s t h e Equal
24 Employment O p p o r t u n i t y o f f i c e a t CHP?
25 A. Yes, s i r .
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DEPOSITION OF CALIFORNIA PATROL
February 25, 2021
• 1 BY MR. BRISCOE:
• r :./Q".'~ Oka;^. . _WelI.,' at some .__point_one qr_ more
GXI _deGide_d-_Officer Ridge i s not going t o ' b e p e r m i t t e d _to;
wear'this weight-beariiig vest, right?;
.^Correct.j
cm """ ^ " " ^ "^"^ O k a y " 'who ?)
CXI / - \\_ • CURRAN": • Objecrtion. _ " ^ g i ^ ^ ^ ^ I l : ^ - ^ ^ [ i ^
c AC "'T^T'^XTJI^CWITNESST"''!^^ f alld)'
(• J I Under the uniform committee. Not s p e c i f i c a i l y Jio)
Of f i c e r _ ^ i d g e , but s p e c i f i c a l l y t o a load-bearing :vest_.}
BYT^MR. "" BRISCOE :
_ • LQ-„ L*^^? ^explain what you mean by that^?.)
(251 _ , ;^A.^ Anything r e l a t e d t o the u n i f orm goes through_a)
(I4l" committee•called_the uniform^committee and they review_
they have presentations and they u l t i m a t e l y ma^ke a)
^decision on d i f f e r e n t things that a^e, presented tjD_ them.j
>I5II And my uhderstanding _is__that_ a 1 oad-^bearing_^;vest_was)
(18'3 ..presented t o them and was not. approved. . Thej
Back Defender was the approved load-bearing device fo:^
(20^ .the _ Sam BrowneT)
(21 ,Q.^ So s p e c i F i c a i l y was O f f i c e r Ridge's request)
(22~ submitted-to the uniform committee?)
(23 • _ . \^A^ No;sir.)
.Q. Okay. So who made the decision not t o allowj
(25; ^Officer,,Ridge' t o wear the weight-bearing vest?)
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DEPOSITION OF CALIFORNIA PATROL
February 25, 2021
(1 MR. CURRAN: .Objection. Vague and ambiguous.)
LI Asked' and_ answered.)
Cl- " ' THE'WITNESS 7 I ( b e l i e v e i t ' s going J;o f a l l under)
• the , i n j u r y / i l i n e s s • • case •management u n i t .)
{'X "BY^MR/~ BlOSCOE ^)
iJ- • Q.' • When d i d you f i r s t l e a r n t h a t t h e v e s t was-no-t)
(Jl going t o be allowed f o r O f f i c e r Ridge?
Tf; A. I b e l i e v e i t was through -- I don' t ,'-- I cion' t j
reca 1 i actua 1 l y )
(10- _.:1_1Q- Do you r e c a l l who informed^you?)
fiT. A. I don'.t b e l i e v e I s p e c i f i c a i l y ge-t.^^i^^^ (l(^!
(Z,
,12 b e l i e v e once i t goes t o i n j u r y case .management u n i t , they;
(13-^ work-..directly w i t h -- w i t h t h e i n d i v i d u a l , the, --'with;!
(iJ 'Officer- Ridge. Because i t ' s rel^t^ed t o an i n j u r y ^ )
!'l&' correct?.. So .1 don't g e t a. l o t o f p r i v y t o a lot.-of •,tha.,t)
!16 ,info,^", but' i t j n i g h t have been i n an e-mail. •. I t , might') have]
ilT -.'been on a phojie c a l l . ; _ I j u s t don't r e c a l l the")
_sp^eci_f i c a l l y who . t o l c i me-that t h e load-bearing, v e s t is)'
(.1:9,, ..not,.an- o p t i o n , t h e Back Defender' i s 'the -- i s the^-
^approyed;^ load-bearing^ device f o r t h e (department.;- jC j'ustj
'• f ac i i i tated, t h a t - i n f o r m a t i o n . )
j_Q-^_;_;Okay. ^ But you, never^ expressed: .an. opin^^^^^^
(23: jwhether .Officer Ridge_ should be allowed; t o wear, the;-yes tJ
(24^ as; .an accommodation.)
(2,5: (_• _1 •' • __CURRA]SI:' Ob j e c t i on. ; As k e d. and_ ans we r e'd j
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DEPOSITION OF CALIFORNIA PATROL
February 25, 2021
;1 ;BY MR>; BRISCOE:)
2'' ;:L (Qx _ J •_??J^^®-^L'?I
I . ( T ' ^ ( A V ( Do i - answer i t ? Yeah, - no, I , d o n ' t - . - : ; I don' t j
t 4 r e c a l l " ever . - - . i t ' s. not r e a l l y my .choice • I ) h(ave;;notM
•''to: do- w i t h i t - a c t u a l l y .)
(((£ . .Q'. );;%)u,don't r e c a l l .expressing, (an o p i n i o n ; ' i s that)
(Jl your • testimony?)
v.. _ ' A. Yeah, I , d o n ' t r e c a l l expressing an opinio(n.)
;'((9(" ,Q(. .Okay. So you may" have.)
(10; pid^you;have an_opi_nion d u r i n g _ t h i s gen^^^
ill. p e r i o d bf_,time_when O^ff^ Ridge was making, t h i s )
(12^ J)
A_. _ No.)
(Q(4( Q. • " Not one .way or the other?;
•15^ (A ." (NCT/)
de- '. • C'J. ^ .1^^-^ CURRAU: " 'dbjjection, . ;Vague_and_ ambiguous .}
Asked( and answered.'
ls
19
20
BY MR. BRISCOE:
Q. •
^
When O f f i c e r Ridge made that request d i d you
believe the request might be granted?
21 A. I had no idea, s i r . I j u s t f a c i l i t a t e d the 163
22 to the proper u n i t t o be processed.
23 Q. Do you think h i s request was given serious .
24 consideration?
25 MR..CURRAN: Objection. Argumentative. Vague
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DEPOSITION OF CALIFORNIA PATROL
February 25, 2021
1 and ambiguous. Lacks f o u n d a t i o n . •
2 THE WITNESS: I have no idea,
3 BY MR. BRISCOE: .
' ' ' -Q.- ^:^^^^y- t h i n k i t ; would -have been; a)
__^ej(s(ona.ble ac^commodation f o r ;Of(ficer_Rid^ge_;tq
veit?)
Cl : "C ~''"'(2(^MR (("^-CURI^C^^^ f o)!^ .^^.•Isgal)
CF oonclusion and improper opinion testimony arid^ lacks)
CX ^ fOundatibn (and vague and ambiguous.) •
:.:: : ! • THE (WITNESS :_ (.can' you_ rest(a(te_the_ques(ti'o^
fiT ((B(Y(MR7:(BRISG0E:)
s
(12; Q.'.. _Yeah(. ' O f f i c e r "Ridge requested^'tKat he :be)
'.permitted .to wear t h i s w e i g h t - b e a r i n g v e s t because, of his)
(14( (.back •inj;ury;. ..Do you.'think, t h a t would .have 1^^^ '
(ll reasonable?':
(16' _ Same 'ob j ect ibnsT)
(17" • C( ~ T 3 C ' ™ E 'WITNESS(^:--Yeah, I (dqn(^t(make tjhose)
• ( l 8- ^:decisions, sir.} .
BY MR.,BRISCOE:
(20 (Ql, •• Well ,_you've made' t h a t clear, "but I'm'asking youi
(21. do j you thin'k i t would have been reasonable •)
(2;_2-. _"_J d o n ) f have an opinion_^ohjthat.)
(23: ,_)_((;_Q(^ _SO_ you don't know whether i t _ wouMhave beein)
(24( (; reasonable^;
(25 ;_••'•""''^_~):MR(:"CU^^ qbj(ec_tion. ' ArgumentTtiv?^^^^
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DEPOSITION OF CALIFORNIA PATROL
February 25, 2021
vi:(. _ Mischaracteirlzes ' the witness's, testimony. Vague ;arid)
ambiguous. Asked and answered.;
CA. Go ahead.)
CA: _ A ( : _ l WITNESS: I don' t ,have._an opinion, on (that,^
CA: j'sir... : i didn't have aii opinipnjon ) i t . }
BY MR. BRISCOE: .
6 ' .'. ' Q. 6ka.y.'.:Can you t h i n k of any reason why i t .would)
not be reasonable f o r someone i n O f f i c e r Ridge's position)'
CsC '_to^ wear that-vest?,'
( :( • ^ .?URRAN: Vague and amb i guou s . I . re que s t • i'f)
(lOC^ .^counsel's. asking i n a legal sense. Reasonable, under,
( i l " : reievant. statute? •• And the .question ca l i s ; f o r a. legal)
(12"::
'conclusion and improper opinion testim.ony anywayBut^^
CL3C:
l e t ine- ask f o r that c l a r i f i c a t i o n . .
(1^::
(15- :(C : : ( i : : : THE:WITNESS :( •Could:you restate (that?)
i i 6 ; _ _BY-_MR. • BRISCOE O
(ivC Q. -Yes. Can you think of; ajny),'reason^ why; jj^;
(18-1 not have been reasonable f o r O f i i c e r Ridge t o wear that)
(19': vest as an accommodation?)
Y2F' . '.^^ j_MR. j:URRAN jSame objections as b e f o r e j
.21: ^ZIT'' ~ 'THE-.-W'IWES'S Well,:' one C I don' t"''make"tfhat) •
(22( ; dec i s ion .and-, two, I think there i s a device that. was((
t23_ (approved f o r him-to wear.)
_^24" CMCECMiscof D
(25_ , Q. Okay. And you're r e f e r r i n g t o the)
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DEPOSITION OF CALIFORNIA PATROL
February 25, 2021
(1 Bagk Defender?)
(C2(( • A. - Yes',-, s i r . )
CA • Q). •• Okay. So other than the mere existenqe_ofJ
another accommodation, can you t h i n k of any other jrea'sohj
C(A. why ~it wouiAnot have been reasonable f o r Officer^j-Rid^ '
to wear a weight-bearing vest as an .accommodation'?;
((A :: ,C ^ MR (" CURRAN : qbj ect^ion . JJ/lisStates^ tlC^
Xl( testimony.' Calls f o r a,^legal conclusion and irnproperj
opinion ^testimony;. ^ So i t ' s outside the scope of)
fio: d'iscoyery^)
,Go ahead and answer, i f you can:!
(ii,C'
_) • :T'': A^E' ,w'lTNES(S: I don't r e a l l y have an j o p i
A.:^h(^:that)^ ~~„1 don'jt make those .decisi6ns(, sq^why)
(iy(
wouid_ I put_my opinion i n t o something ^^^^ haye no)
(14C
iisC standing on?)
(ie(( ^A(M(7(BRISTOE^^^
i.lf _ ( 'Q. Well, I'm going t o ask the question regardless
•vl8.. IJrn; asjcing; you i f you can think of any reason why -itj
l9^" would not have -been -reasonable t o allow Of fj-cer* Ridge 'to)
(2~0"' wear that vest as an accommodation.)
21 ' ~(.MR- CARRAN,:_ Counsei, thisC.is :FheAhlrd^
22 You know, t h i s question's improper. You're asking him to)
(23" opine and also give you a legal conclusion.)
(24_
. Iegai conciusion.^^ I'm asking f o r the opinion^ 9f_a) ,
CALDEP 36
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DEPOSITION OF CALIFORNIA PATROL
February 25, 2021
)^1. (7sea(soned of f i c e r of the CHP. And i f you want t o ;instruGt)
C'2'. •Aim- not t o answer, that's your prerogative, but I'm. going)
r 3(. to a.sk.'for-a d i r e c t response.)
()A MR. CURRAN: .Well, I asked yqu e a r l i e r f.or^^^^
CA '. c l a r i f ica.tion a.s t o the adjective ))'reasonaM^^^^
CA ' t_a.lking_ about i n a_statutpry l e g a \ sense_ --J
(, A •"•"^C . C'^^C BRISCOE: ::Counsel --)
r(8( \_) MR. CURRAN: -- or are you j u s t asking -.-}
C)A VA( "";'-' 'TOE^COURT'REPORTER: . Hold on )")''"Wait^' waiT.':
,CLO( Stop. : I ^ cannot^have you both t a l k i n g on Zoom at the same)
lA time., I t absolutely does_ not-,_,work.) •
(lA .... ^............. ^..^.^^..^ ^' So i'lAgo first: ..T.^.eguest a)
(l3_ cjla^rifAoation as t o whether you're talking'about)
(14( reasonab.le from the perspective ,of the :relevant statute,)
as i n the phrase "reasonable accommodation." _ I f you'r.e)
A6' asking i l l s opinion as^ a layperson on. w^al: i s reasonajblev)
(l)7( _that'js .outside the sj::ope of discovery;_and improper. •. And)
you've asked i t several times, so i t also would be- asked)
(19 and answered. But please c l a r i f y what you mean by the;
(2(6( adjectlve "reasonable.")
A^ M]R. BRISCOE:^ Counsel, your objection i s not)ed_.j
(7( CMR J-'^^^^J^^ . J f ((y OU T;r e:(rp t :goIr^ I J )
(23'" BY;_MR .. BRISCOE :J
(24 Q. Captain Stover, would you please answer the)
(2A question?)
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DEPOSITION OF CALIFORNIA PATROL
February 25, 2021
(Cl~:C(:":'~:"~(::i^R ACURRS^ . (Cwe ' re ' going to take : a^ shq^^
f '2 • ' bre'ak.) •
C J•.'""(•"'••,: ')"MR . ' BRiSCOE': No ,^ I wapt :an ajiswer"f^^^
("A"" ^ ' .. MR. CURRAN: We'll be back i n f i v e minutes.)
CCA" "(No'
Te'.'- BY MR. BRISCOE
( -7 , Q-. Captain. Stover-
( . 8,. • _ - • ,. MR^ ^CURRAN:,^ - - you' re not going . .to get; an)
C'?i_ •C^?^^^^ -_ • AA?^! t-9-^l?,9 ^ break^)
(ll: ( , (Q- 'Aaptain Stover — )
i;^i2 .-, MR. CURRAN: We ' re of,f the , record..)
(OC- .BY .MR,.- BRISCOE:)
14'' •' .Q . ^ •-,-' can you .answer' my question?)
;15 . •; ( A i l r i g h t . ; Let the record ref l e c t that- counsel)
(16)^ _ah(d' thejwitne.ss are leaving the deposi^ioji_room,^
(lA
(18;^ ' • .; • /' (Break taken,
; 2fl , BY,)^^.; BRI SCQE :)
''2A,. - ).Q- 'Captain Stover, we. j u s t had a-bqut _a .ten-minute)
(22 Ijcecessj'while I had a question pending. _ What you. dq)
(23 , j during -the recess?)
(2 A : •' •''-;,~"~~";7:'~^f;^^-;') c'uRRj^'T ~~He" Aa Tke d^ A ITA(me7^anA~\^^
(25_ I g o i n g ,'to:'gq_ into^^^-that .because()that' s ^attorneAeljLeriA
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DEPOSITION OF CALIFORNIA PATROL
February 25, 2021
;i; privirege.)
(A. :'C:,.C^: (CJ^R- BRISCOEV wen, l ' m : e n t i t l e d ( tq^
f'A A " ~A~ (^: MA.~ '"CURRAN CAext que s 11 qn. j
MR'. BRISCOE: I'm^ entitjLed tq_knqw wh^^^
LA "With a:nd I'm asking the witness.)
!:(6( Q). Captain Stover, w i l l you please ,answer?)
(_Ad 1 t a l k e d t o attorney Jim Curran.;
• Q. - Okay. ,)N,qw that you've had that qppoj'tunity, can)
CA you answer my previous question?;
CLO( : : : ' ' ' ~'~~L^'^^^ ~ wen,^ l e t • s have itCre(ad b(aciA^
(ll' ;^guess - -)
.A C(^ • ^^F- BRI SCOE"^ i ' 11 re - ask (the ques(ti(o(n(:)
( l l : :A( ... C -^^- CURRAN: -- I 've got tq assert the sime)
OA' _ obj ectiqn.).
115. --^Y]m^r BRISCOE:)
(1&^ _ 1 '__A_"'5^Pt5^i^_Stover, ;can „yqu -think of. any^jceasqh wjfiyj
i t would nqt ha.ve been- reasonable t o a l l o w Of f ic,er__Ridge(!
(18 to wearthe w e i g h t - b e a r i n g vest?)
(i9( ( (c. CC ( C^^^C(CURRAN:"C Objec'tiqn)(( C a l l s for(^^^
Ao"
N .
conclusion.- , C a l l s f o r improper o p i n i o n t e s t i m o n y . ) '
(2)]C Outside -the . scope_qf A i s c q v e r y . • Vague and' ambi.guqus a^^)
i22( 'asked'and answered.)
(23_ • ^ . . THE_- WITNESS : ^1) dbn' t have an . o p i n i o n and^ I
(24( jipn) t_jT\ak(e those decisions.)
(2^^' 77)
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February 25, 2021
il :B Y_ MR .J BR_I S COE : j
(:A (_ Q.. I ' m nqt asking^fqr:your opinion. I want .you to)
C(3( l i s t e n carefu_liy• to my question'. I'm ask;ing as, y(6u_si;t)
C'4( "here'jtdday,- given a i l your experience i n the CHP, -which)
f "5 " is subst(antlaA^can you t h i n k of any •'reasqn jA7hy_^_i^^
nqt^ have • been reasonable t o allow O f f i c e r Ridge -to ..wear)
i'T tiie^ weight-bearing vest .that he_'requested^)
L'8 „ ' "C- ~~ :" . ' M ( A ^ CURRAN:. .Same obj ections _and n^^ '. s )truly)'
(•(.(A ) badgering .^^ .So - -)
(OL( (:fY( M)C( BR rscM
(lA .0.,. Yes or noA
(lA .. -. MR^., CURRAN : i f ;,you p e r s i s t t h i s . way,)
AA ^Coun^.e 1. ;- -)
C^C'W'MAT BRISCOET)
(i5(: . ^ Q'. Can you t h i n k of a single reason; yes or nq?)
(16) • C' ^ MR. CCURRAN: Counsel, you don' t get_to ciAjrue)
(iA( o'ff _ j u s t by saying, '-Yes o r no?" Thi^ question is'not)
CLS: proper. I t ' s , been asked and answered m u l t i p l e time-S,.)
CCA. i:'m;^.wi:iling _to_meet and_ conf er r i g l i t _ n_ow^ i f you_can)
(20C^ (expiain_tq_me y o u r t h e s i s on why t h i s isn't- im
testi.mony( or a l e g a l conclusion.(
^221 ) , 'J""-_ _ M_R._BRISCOE:_ ,Are_ you i n s t r u c t i n g him not tq)
(23 answer?)
)2:4 MR. CURRAN: No.)
'•'25 > ,Go) ahead and. -.-:_go ahead and (answ^r ,;^ if__Y°A "^^^'^^
CALDEP 40
WWW.CALDER.COM
DEPOSITION OF CALIFORNIA PATROL
February 25, 2021
C..A)-'.;S.i^;J
( AT""'"^')^"^""^"('(AHA'WITOE"SS : " " I 'don '"t - - .1 -don-.'t jhaye; an opinion)
L 3 ' -.dn.-.that..
:^._ '_)jC^^L-BRISCOE,:- 'Okay. - Mr.j-.Car^
'5.; • 'fire "a -motion over tAis)(ques(tiqn,;.,;_;ju;S .so, you- know))'
(((6" " ") • C .C7 ^ .:_MR: C CURRSN :C ' ,lKno ck_ your self' out.)
"7^CC A A M R ( : ( A ^ I S C ^
C:8(.,.:TCA'TCQi ^^'^s^ Y°]^ - ^ ^ ^ s^pjsssed t o anybqdyi.t^h-ls" 1^^
C)?A( .reasonable accommodation,,..meaning t h e weight'-bearIng)-
flO;;'Cvq^t?) . • ~
(ii::::(;)C'" A'T(C(Nqtc('t'hat( I
12 . Q. Do you t h i n k i t would be dangerous f o r a highway
13 patrolman t o wear a w e i g h t - b e a r i n g vest on t h e job?
14 MR. CURRAN: Objection. Incomplete
15 h y p o t h e t i c a l . Lacks f o u n d a t i o n . C a l l s f o r improper
16 o p i n i o n testimony.
17 THE WITNESS: Can you s t a t e i t again, sir?
18 BY MR. BRISCOE:
19 Q. Do you t h i n k i t would be dangerous f o r a
20 patrolman-to wear a w e i g h t - b e a r i n g v e s t l i k e t h e one
21 O f f i c e r Ridge requested?
22 • MR. CURRAN: Same o b j e c t i o n s .
23 THE WITNESS: That's compound.
24 MR. CURRAN: ' And I ' l l add compound.
25- THE WITNESS: I t c o u l d be, yes.
CALDEP 41
WWW.CALDEP.COM
EXHIBIT B
Sanchez v. Jiles, Not Reported in J . Supp. (2012)
2012 WL 13005996
substantive due process under' § 1983; (3) false arrest and
2012 WL 13005996 iniprisonnient; (4) batteiy: (5) negligence; and (6) violation
Only the Westlaw citation is currently available.
ofthe Bane Act, ' California Civil Code § 51.7.
United States District Court, C D . California.
On April 2, 2012, the parties filed assorted motions .
Donald SANCHEZ, individually and as
Defendants filed eight motions that seek to: (1) exclude
successor-in-interest; Gabriel Sanchez; Malachi
evidence that no gun was found at the scene of the
Sanchez; J.S., a minor by and through his
shooting; (2) exclude photographs of decedent's injuries
guardian ad litem Yvonne Varela, Plaintiffs,
taken at his autopsy; (3) exclude the testimony of plaintiffs'
V.
expert Roger Clark; (4) admit the prior felony conviction
Sergeant Casey JILES, Defendant. of vvitness Elizabeth Morales; (5) exclude evidence related
to defendant's alleged failures to investigate and collect
Case No. CV 10-09384 M M M (OPx)
evidence pertaining to the shooting; (6) exclude references
. I to an alleged conspiracy by the County to cover up the
Signed 06/14/2012 .circumstances surrounding the shooting, including Clark's
testimony on this subject; (7) bifurcate the claim for punitive
Attorneys and Law Firms damages; ^ and (8) exclude evidence related to the testimony
Dale K. Galipo, Law Offices of Dale Galipo, Woodland of certain eyewitnesses. Plaintiffs oppose all these motions.
Hills, CA, Jon R. Schlueter, Peter B. Schlueter, Schkieter and
Schlueter, Redlands, CA, for Plaintiffs. Plaintiffs for their part have filed seven motions that
seek to exclude (1) the decedent's prior contacts with law
Barry Hassenberg, Dana Alden Fox, Gregory Ryan, Lewis
enforcement; (2) the decedent's drug and alcohol use; (3) what
Brisbois Bisgaard & Smith LLP, Los Angeles, CA, for
defendant Jiles may have known or not known at the time of
Defendant.
the shooting about an incident that allegedly took place earlier
in the day and that involved the decedent brandishing a gun at
a passerby; (4) the testimony of defense expert Vina Spiehler;
FINAL ORDER ON MOTIONS (5) the testimony of defense expert William Lewinski; (6)
the testimony of defense expert Curtis Cope; and (7) the
MARGARET M. MORROW, UNITED STATES DISTRICT
testimony of defense expert Steve Rafter Defendants oppose
JUDGE
the second through seventh motions, but do not oppose the
*1 On December 9, 2010, plaintiffs Donald Sanchez, as motion to exclude evidence of Don Richard's prior contacts
successor-in-interest, Gabriel Sanchez, Malachi Sanchez, and with law enforcement.
J.S., a minor, by and through his guardian ad litem Yvonne
Varela, filed suit against the County of San Bemardino, *2 On April 30, 2012, the court held a final pretrial
Sergeant Casey Jiles, and Deputy Antekeier, as well as conference, issued a tentative order regarding the motions,
and heard argument on the motions. The court directed
fictitious defendants.' The complaint concerns Jiles' and a
the parties to file supplemental briefs and offers of proof
fictitious defendant's shooting of Don Richard Sanchez and
regarding certain motions, so that it could better understand
his subsequent death. ^
the nature of the dispute. It also noted that shortly before the
pretrial conference, defendants filed an ex parte application
The complaint alleged eleven claims under ! 42 U.S.C. § seeking to exclude the testimony of one of plaintiffs'
1983 and state law. On February 24, 2012, the court entered experts, Connie Caruthers. Because plaintiffs had not had an
an order on the parties' stipulation to dismiss individual opportunity to respond, the court noted that it would issue a
defendant Antekeier;"' on February 29, 2012, it entered an ruling on that motion once plaintiffs filed opposition.
order on the parties' stipulation to dismiss five of the claims
This order addresses the supplemental briefs and evidence
for relief'' The claims that remain to be tried are: (1)
filed and decides all of the pending motions.
excessive force under i 42 U.S.C. § 1983; (2) violation of
WESTLAW © 2Q21 Thomson F'^euters. No daim to original U.S. Government Works.
Sanchez v. Jiles, Not Reported in i =d. Supp. (2012)
2012 WL 13005996
Defendants move to exclude any argument or evidence that
I. DISCUSSION a gun was not found at the scene of the shooting. ^ They
contend such evidence is "post-hoc" and is irrelevant to the
A. Legal Standard Governing Excessive Force crucial inquiry, which is the reasonableness of Jiles's use
The Fourth Amendment protects individuals against the use of force based on circumstances known to him at the time.
of "excessive force—deadly or not—in the course of an arrest, Defendants rely heavily on the Seventh Circuit's decision in
investigatory stop, or other 'seizure' " by a law enforcement
' .Sherrod v. iierry, 856 F.2d 802 (7th Cir 1988) (en banc),
officer Graham v. Connor, 490 U.S. 386, 395 (1989); see where the court reasoned as follows:
also ' ^^Blanford v. Sacramento County, 406 F.3d 1110, "Knowledge of facts and circumstances gained after the
1115 (9th Cir 2005). State officials "may use only such fact (that the suspect was unarmed) has no place in
force as is objectively reasonable under the circumstances."
the trial court's or jury's proper/705^-/ioc. analysis of the
i LaLonde-v. County of Riverside, 204 F.3d 947, 959 (9th reasonableness of the actor's judgment. Were the rule
otherwise, as the trial court ruled in this instance, thejury
Cir. 2000) (citing ' Graham, 490 U.S. at 397; « White
would possess more information than the officer possessed
V. Pierce County, 797 F.2d 812, 815 (9th Cir 1986)). To
when he made the crucial decision. Thus, we are convinced
assess whether a use of force was objectively reasonable, one
that the objective reasonableness standard ... requires that
must "balanc[e] the 'nature and quality of the intrusion'-on
Officer Berry's liability be determined exclusively upon
[the] person's liberty with the 'countervailing governmental
an examination and weighing of the information Officer
interests at stake.'..." t Smith v. City ofHemet, 394 R3d 689, Berry possessed immediately prior to and at the very
moment he fired the fatal shot. The reception of evidence
700 (9th Cir 2005) (quoting \ Graham, 490 U.S. at 396).
or any information beyond that which Officer Berry had
and reasonably believed at the time he fired his revolver
In Graham, the Supreme Court held that factors that are
is improper, irrelevant and prejudicial to the determination
relevant in assessing whether a use of force was objectively
of whether Officer Berry acted reasonably 'under the
reasonable include "the severity of the crime at issue, whether
the suspect poses an immediate threat to the safety of circumstances. Id at 805.
the officers or others, and whether he is actively resisting
*3 The court cautioned that factfinders must not "second-
arrest or attempting to evade arrest by flight." t Graham.
guess an officer's split-second reasonable judgment to protect
490 U.S. at 396. The Court did not limit the inquiry to
himself and those around him through the use of deadly
these factors, however " 'Because the test of reasonableness
force; rather, courts and juries must determine the propriety
under the Fourth Amendment is not capable of precise
of the officer's actions based upon a thorough review of the
definition or mechanical application,' the reasonableness of
knowledge, facts and circumstances known to the officer at
a seizure must instead be assessed by carefully considering
the time he exercised his split-second judgment as to whether
the objective facts and circumstances that confronted the
the use of deadly force was warranted." Id. Defendants argue
arresting officers." i Smith, 394 F.3d at 701 (quoting that the same considerations apply here, and that the jury's
focus must be on Jiles's knowledge and perception of the facts
' Graham, 490 U.S. at 396); see also ' Hammer v. Gross,
at the time of the shooting, not on facts that surfaced only after
932 R2d 842, 846 (9th Cir 1991) ("The question is not simply
the incident.
whether the force was necessary to accomplish a legitimate
police objective; it is whether the force used was reasonable in
Defendants read Sherrod too broadly. In circumstances where
light of all the relevant circumstances" (emphasis original)).
the facts are undisputed and there are no material questions
as to what the officer saw leading up to and at the time of
B. Defendants' Motions the shooting, the Sherrod court's reasoning has significant
persuasive force. As the Fourth Amendment analysis properly
focuses on the reasonableness of the officer's conduct given
\. Motion to Exclude Evidence Related to the the facts he knew at the tinie, evidence gained after the fact has
Absence ofa Gun at the Scene of the Shooting limited, if any, probative value. What value it does, moreover,
may be outweighed by the danger of unfair prejudice, as the
V'/E;STLAV-\,' © 2021 Thomson Reuters, No ciaim to original U.S. Governrrient Works.
Sanchez v. Jiles, Not Reported in red. Supp. (2012)
2012 WL 13005996
jury may be improperly influenced by the absence o f a gun Rule 403 is appropriate, evidence must create a risk of
and fail to apply the correct legal standard, which considers unfair prejudice, "not simply the prejudice that any relevant
what facts the officer knew at the time he decided to sue force. evidence would create." United States v. Loudon, No. CR
06494 TUC RCC, 2006 WL 3694861, *2 (D. Ariz. Dec. 8,
In this case, however, the parties advance competing accounts 2006); FED.R.EVID. 403. As noted, evidence regarding the
of the incident, and thejury will have to weigh the credibility absence of a gun is highly probative in assessing respective
of each side's witnesses and determine who to believe. witnesses' credibility, and will aid the jury in resolving
Defendants contend that the decedent had his left hand in conflicting eyewitness accounts. Consequently, its value
his pocket at the time of the shooting, while plaintiffs assert outweighs any risk of unfair prejudice.^
that his hands—which were empty—were actually in the air
They assert that an independent eyewitness will testify to Defendants argue that unlike cases where evidence
this fact. The absence of a gun at the scene therefore goes concerning the existence of a gun directly contradicts an
directly to the credibility of the respective witnesses, as it may officer's version of events, Jiles will not testify that he actually
corroborate one account and discredit another The probative saw a gun in the decedent's hand. Instead, he will state that
value of the evidence is therefore substantial. See Bradford he saw the decedent reaching into his pocket, and that he
V. City of Modesto, f United States v. Finley, 301 F.3d 1000, 1007
necessary to establish the facts identified above. A number of (9th Cir 2002) ("[Rule 702] consists of three distinct but
the photographs, particularly those taken at the scene, appear related requirements: ( I ) the subject matter at issue must
to be duplicative; the court can discern no possible purpose be beyond the common knowledge of the average layman;
for admitting several of them, such as. a photograph ofthe (2) the witness must have sufficient expertise; and (3) the
decedent's body in an open body bag on a table, evidently state of the pertinent art or scientific knowledge permits
taken before the autopsy commenced. Plaintiffs bear the
burden of showing that the exhibits are admissible under Rule the assertion of a reasonable opinion"); '^)sterner v. U.S.
401 and that their probative value substantially outweighs Drug Enforcement .4gency, 467 F.Supp.2d I0I7, 1033 (S.D.
any danger of undue prejudice under Rule 403. Despite this Cal. 2006) ("There are three basic requirements that must
fact, they have done little more than identify a subset of be met before expert testimony can be admitted. First, the
the hundreds of photographs initially identified, and offer evidence must be useftil to a finder of fact. Second, the expert
conclusory and unhelpful argun-ients as to why any should be witness must be qualified to provide this testimony. Third, the
admitted. They simply repeat the abstract arguments made in proposed evidence must be reliable or trustworthy" (citations
their opposition. omitted)).
Before admitting expert testimony, the trial court must
Defendants' response suggests that they have no objection
make "a preliminary assessment of whether the reasoning
to four of the photographs plaintiffs have identified. In or methodology underlying the testimony is scientifically
defendants' submission, they are labeled RvSB Nos. 1419- valid and of whether that reasoning or methodology properly
20 and 1423-24. Plaintiffs' proffer does not provide any
can be applied to the facts in issue." : Daubert v. Merrell
identifiers for them. As defendant does not object to the
Dow Pharmaceuticals. Inc., 509 U.S. 579, 592-93 (1993).
admissibility of these photographs, the court will admit them
In conducting this preliminary assessment, the trial court
by stipulation.
is vested with broad discretion. See, e.g., i. General Elec.
Beyond these four photographs, plaintiffs had provided no
Co. V. Joiner, 522 U.S. 136, 142 (1997); i United States v.
justification for placing all fifty photographs before thejury.
Espinosa, 827 F.2d 604, 611 (9th Cir 1987) ("The decision
Accordingly, the court grants defendants' motion as to the
to admit expert testimony is committed to the discretion of
balance of the photographs.
the district court and will not be disturbed unless manifestly
erroneous"). "The party offering the expert bears the burden
of establishing that Rule 702 is satisfied." Sundance Image
3. Motion to Exclude the Testimony Tech., Inc. v Cone Editions Pre.?s. Ltd, No. CV 02-2258 JM
of Plaintiffs Expert Roger Clark (AJB), 2007 WL 935703, *4 (S.D. Cal. Mar 7, 2007) (citing
[ ^ A l l i s o n V McGhan Medical Corp., l84F.3d 1300, 1306
Defendants next move to exclude "certain testimony of
Plaintiffs police practices expert, Roger Clark." Rule 702 (I Ith Cir 1999), in turn citing I Daubert, 509 U.S. at 592
governs the admissibility of expert testimony. Under Rule n. 10)); see also Walker v. Contra Costa Counly, No. C 03-
702, 3723 TEH, 2006 WL 3371438, * l (N.D. Cal. Nov. 21, 2006)
(same).^"
*7 " [ i ] f scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the
wgSTLAW ® 2021 Thomson Reuters. No claim to oriainal U.S. Governn-ient Works.
Preview
ROB BONTA Attorney General of California 2 K.R1ST1N M . D A I L Y Supervising Deputy Attorney General 3 JAMES F. CURRAN Deputy Attorney General FfLED/EHDORSIED 4 State Bar No. 142041 5 1300 I Street, Suite 125 P.O.-Box 944255 MAY 2 0 2021 Sacramento, CA 94244-2550 6 Telephone: (916) 210-61 13 By:. S. Cade Deputy Clerk Fax: (916)324-5567 7 E-mail: James.Curran@doj.ca.gov Attorneys for Defendant 8 California Highway Patrol ,9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SACRAMENTO 12 .13 DAVID RIDGE, CaseNo. 34-2019-00265393 . 14 Plaintiff DECLARATION OF JAMES F. CURRAN 15 IN SUPPORT OF DEFENDANT V. CALIFORNIA HIGHWAY PATROL'S 16 OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL ANSWERS AT 17 THE CALIFORNIA HIGHWAY PATROL; DEPOSITION OF MATTHEW STOVER and DOES 1-100, inclusive, AND FOR SANCTIONS 18 Defendants. Date: June 3, 2021 19 Time: l:30p:m. Dept: 53 20 Judge: Hon. Shama H; Mesiwala Trial Date: None 21 Action Filed: September 23, 2019 22 I, James F. Curran, am an attorney licensed to practice law in all courts of the State of 23 California. I ain a deputy attorney general and counsel of record for Defendant California 24 Highway Patrol (CHP) in this case. I have analyzed the pleadings and documents relevant to this 25 lawsuit, and I defended the deposition of Captain Matthew Stover. 1 therefore have personal .26 knowledge of the matters described below, and could competently testify to their truth if called 27 upon to do so. 28 Declaratioh of James F. Curran in Support of Opposition to MTC Answers at Deposition (34-2019-00265393) 2. Attached as Exhibit A are true copies of excerpts of the transcript of the deposition of 2 Matthew Stover, taken on February 25, 2021. 3 3. Attached as Exhibit B is a copy of the case of Sanchez v. Jiles (CD.Cal. 2012) 2012 WL 4 13005996. 5 4. Attached as Exhibit'C is a copy ofthe case of Bey v. U.S. Bank(C,D. Cal. 2010) 2010 , 6 WL 11596165. 7 5. I have spent eight (8) hours reviewing, and preparing CHP's opposition to, this motion. 8 The Employment and Administrative Mandate Section of the California Attorney General's 9 Office, to which I am assigned; charges its client agencies, including CHP, $220 per hour for 10 legal services. I respectfully submit this is a reasonable and less than customary charge for these 11 services. 1 anticipate I will spend approximately two (2) additional hours reviewing Plaintiffs 12 reply to CHP's opposition and preparing for and attending the hearing on this motion. Therefore, 13 1 anticipate CHP will incur attorney fees of $2,200 for the review of this motion and Plaintiffs 14 reply papers, for preparation of this opposition, my declaratioh and proposed order, and for oral 15 argument. 16 I declare under penalty of perjury under the laws of the State of California that the 17 foregoing is true and correct. Executed on May 19, 2021 at Sacramento, California. 18 19 James F. Curran 20 21 22 SA2019106238 23 35122793.docx 24 25 26 27 28 Declaration of James F. Curran in Support of Opposition to MTC Answers at Deposition (34-2019-00265393) EXHIBIT A DEPOSITION OF CALIFORNIA PATROL February 25, 2021 1 SUPERIOR COURT OF CALIFORNIA 2 COUNTY.OF SACRAMENTO ^3 4 5 DAVID RIDGE, a n i n d i v i d u a l , 6 Plaintiff, 7 vs . No . 34-2019-00265393 8 THE CALIFORNIA HIGHWAY PATROL; a n d DOES 1 - 1 0 0 , i n c l u s i v e , 9 Defendants. 10 11 12 13 VIDEOCONFERENCE DEPOSITION OF 14 CALIFORNIA HIGHWAY PATROL CAPTAIN IVIATTHEW STOVER 15 16 Thursday, F e b r u a r y 25, 2021 17 1:36p.m. 18 19 20 21 22 23 24 25 REPORTED BY: VALERYANNA SKIPPER, GSR NO. 9 86 8 CALDEP WWW.CALDEP.COM DEPOSITION OF CALIFORNIA PATROL February 25, 2021 1 APPEARANCES 2 3 FOR PLAINTIFF: 4 MAYALL HURLEY BY: JOHN P. BRISCOE, ATTORNEY AT LAW 5 jbriscoe@mayallaw.com 2453 G r a n d C a n a l B o u l e v a r d 6 S t o c k t o n , C a l i f o r n i a 95207 (209),477-3833 7 ' 8 9 10 FOR DEFENDANTS 11 CALIFORNIA DEPARTMENT OF JUSTICE BY: JAMES F. CURRAN, DEPUTY ATTORNEY GENERAL 12 James.CurranOdoj.ca.gov 1300. I S t r e e t 13 S a c r a m e n t o , C a l i f o r n i a 95814 (916) 210-6113 14 15 16 17 18' 19 20 21 22 23 24 25 CALDEP WWW.CALDEP.COM DEPOSITION OF CALIFORNIA PATROL February 25, 2021 1 handled under a new u n i t -- a d i f f e r e n t u n i t who's 2 h a n d l i n g h i s i n j u r y case. During t h i s time I was . 3 i n t e r a c t i n g w i t h -- w i t h O f f i c e r Ridge every time I 4 r e c e i v e d i n f o r m a t i o n o r he needed some i n f o r m a t i o n . So 5 we i n t e r a c t e d and t a l k e d about the process and what t o 6 expect o r where t o go now o r who t o t a l k t o . 7 BY MR. BRISCOE: (Is" jQ^^^ ever express an . o p i n i o n one way o r ano^the^r 'as' tq^ y h e t h e r _0f f^icer_^_Ridge^_should' be ai;lgv/ed_ to) wear-the vest?') K ;' *_;'A,._ I n^ve'r _expressed_ my o p i n i o j i , Jn^ 12 Q. . D i d anybody ever ask you f o r your o p i n i o n ? 13 A. No, n o t t h a t I r e c a l l . 14 Q. D i d you make any d e c i s i o n s r e g a r d i n g how t o 15 accommodate O f f i c e r Ridge? 16 MR. CURRAN: Objection. Vague and ambiguous., 17 THE WITNESS: I would have t o say no. I just 18 f a c i l i t a t e d the information. 19 BY MR. BRISCOE: 20 Q. Now, you p r e v i o u s l y s a i d t h a t t h e request f o r 21 accommodation -- which i s c a l l e d a 163,. c o r r e c t ? 22 A. Yes,•sir. 23 Q. That was sent t o EEO, which i s t h e Equal 24 Employment O p p o r t u n i t y o f f i c e a t CHP? 25 A. Yes, s i r . CALDEP 29 WWW.CALDERCOM DEPOSITION OF CALIFORNIA PATROL February 25, 2021 • 1 BY MR. BRISCOE: • r :./Q".'~ Oka;^. . _WelI.,' at some .__point_one qr_ more GXI _deGide_d-_Officer Ridge i s not going t o ' b e p e r m i t t e d _to; wear'this weight-beariiig vest, right?; .^Correct.j cm """ ^ " " ^ "^"^ O k a y " 'who ?) CXI / - \\_ • CURRAN": • Objecrtion. _ " ^ g i ^ ^ ^ ^ I l : ^ - ^ ^ [ i ^ c AC "'T^T'^XTJI^CWITNESST"''!^^ f alld)' (• J I Under the uniform committee. Not s p e c i f i c a i l y Jio) Of f i c e r _ ^ i d g e , but s p e c i f i c a l l y t o a load-bearing :vest_.} BYT^MR. "" BRISCOE : _ • LQ-„ L*^^? ^explain what you mean by that^?.) (251 _ , ;^A.^ Anything r e l a t e d t o the u n i f orm goes through_a) (I4l" committee•called_the uniform^committee and they review_ they have presentations and they u l t i m a t e l y ma^ke a) ^decision on d i f f e r e n t things that a^e, presented tjD_ them.j >I5II And my uhderstanding _is__that_ a 1 oad-^bearing_^;vest_was) (18'3 ..presented t o them and was not. approved. . Thej Back Defender was the approved load-bearing device fo:^ (20^ .the _ Sam BrowneT) (21 ,Q.^ So s p e c i F i c a i l y was O f f i c e r Ridge's request) (22~ submitted-to the uniform committee?) (23 • _ . \^A^ No;sir.) .Q. Okay. So who made the decision not t o allowj (25; ^Officer,,Ridge' t o wear the weight-bearing vest?) CALDEP 31 WWW.CALDERCOM DEPOSITION OF CALIFORNIA PATROL February 25, 2021 (1 MR. CURRAN: .Objection. Vague and ambiguous.) LI Asked' and_ answered.) Cl- " ' THE'WITNESS 7 I ( b e l i e v e i t ' s going J;o f a l l under) • the , i n j u r y / i l i n e s s • • case •management u n i t .) {'X "BY^MR/~ BlOSCOE ^) iJ- • Q.' • When d i d you f i r s t l e a r n t h a t t h e v e s t was-no-t) (Jl going t o be allowed f o r O f f i c e r Ridge? Tf; A. I b e l i e v e i t was through -- I don' t ,'-- I cion' t j reca 1 i actua 1 l y ) (10- _.:1_1Q- Do you r e c a l l who informed^you?) fiT. A. I don'.t b e l i e v e I s p e c i f i c a i l y ge-t.^^i^^^ (l(^! (Z, ,12 b e l i e v e once i t goes t o i n j u r y case .management u n i t , they; (13-^ work-..directly w i t h -- w i t h t h e i n d i v i d u a l , the, --'with;! (iJ 'Officer- Ridge. Because i t ' s rel^t^ed t o an i n j u r y ^ ) !'l&' correct?.. So .1 don't g e t a. l o t o f p r i v y t o a lot.-of •,tha.,t) !16 ,info,^", but' i t j n i g h t have been i n an e-mail. •. I t , might') have] ilT -.'been on a phojie c a l l . ; _ I j u s t don't r e c a l l the") _sp^eci_f i c a l l y who . t o l c i me-that t h e load-bearing, v e s t is)' (.1:9,, ..not,.an- o p t i o n , t h e Back Defender' i s 'the -- i s the^- ^approyed;^ load-bearing^ device f o r t h e (department.;- jC j'ustj '• f ac i i i tated, t h a t - i n f o r m a t i o n . ) j_Q-^_;_;Okay. ^ But you, never^ expressed: .an. opin^^^^^^ (23: jwhether .Officer Ridge_ should be allowed; t o wear, the;-yes tJ (24^ as; .an accommodation.) (2,5: (_• _1 •' • __CURRA]SI:' Ob j e c t i on. ; As k e d. and_ ans we r e'd j CALDEP 32 WWW.CALDEP.COM DEPOSITION OF CALIFORNIA PATROL February 25, 2021 ;1 ;BY MR>; BRISCOE:) 2'' ;:L (Qx _ J •_??J^^®-^L'?I I . ( T ' ^ ( A V ( Do i - answer i t ? Yeah, - no, I , d o n ' t - . - : ; I don' t j t 4 r e c a l l " ever . - - . i t ' s. not r e a l l y my .choice • I ) h(ave;;notM •''to: do- w i t h i t - a c t u a l l y .) (((£ . .Q'. );;%)u,don't r e c a l l .expressing, (an o p i n i o n ; ' i s that) (Jl your • testimony?) v.. _ ' A. Yeah, I , d o n ' t r e c a l l expressing an opinio(n.) ;'((9(" ,Q(. .Okay. So you may" have.) (10; pid^you;have an_opi_nion d u r i n g _ t h i s gen^^^ ill. p e r i o d bf_,time_when O^ff^ Ridge was making, t h i s ) (12^ J) A_. _ No.) (Q(4( Q. • " Not one .way or the other?; •15^ (A ." (NCT/) de- '. • C'J. ^ .1^^-^ CURRAU: " 'dbjjection, . ;Vague_and_ ambiguous .} Asked( and answered.' ls 19 20 BY MR. BRISCOE: Q. • ^ When O f f i c e r Ridge made that request d i d you believe the request might be granted? 21 A. I had no idea, s i r . I j u s t f a c i l i t a t e d the 163 22 to the proper u n i t t o be processed. 23 Q. Do you think h i s request was given serious . 24 consideration? 25 MR..CURRAN: Objection. Argumentative. Vague CALDEP 33 WWW.CALDERCOM DEPOSITION OF CALIFORNIA PATROL February 25, 2021 1 and ambiguous. Lacks f o u n d a t i o n . • 2 THE WITNESS: I have no idea, 3 BY MR. BRISCOE: . ' ' ' -Q.- ^:^^^^y- t h i n k i t ; would -have been; a) __^ej(s(ona.ble ac^commodation f o r ;Of(ficer_Rid^ge_;tq veit?) Cl : "C ~''"'(2(^MR (("^-CURI^C^^^ f o)!^ .^^.•Isgal) CF oonclusion and improper opinion testimony arid^ lacks) CX ^ fOundatibn (and vague and ambiguous.) • :.:: : ! • THE (WITNESS :_ (.can' you_ rest(a(te_the_ques(ti'o^ fiT ((B(Y(MR7:(BRISG0E:) s (12; Q.'.. _Yeah(. ' O f f i c e r "Ridge requested^'tKat he :be) '.permitted .to wear t h i s w e i g h t - b e a r i n g v e s t because, of his) (14( (.back •inj;ury;. ..Do you.'think, t h a t would .have 1^^^ ' (ll reasonable?': (16' _ Same 'ob j ect ibnsT) (17" • C( ~ T 3 C ' ™ E 'WITNESS(^:--Yeah, I (dqn(^t(make tjhose) • ( l 8- ^:decisions, sir.} . BY MR.,BRISCOE: (20 (Ql, •• Well ,_you've made' t h a t clear, "but I'm'asking youi (21. do j you thin'k i t would have been reasonable •) (2;_2-. _"_J d o n ) f have an opinion_^ohjthat.) (23: ,_)_((;_Q(^ _SO_ you don't know whether i t _ wouMhave beein) (24( (; reasonable^; (25 ;_••'•""''^_~):MR(:"CU^^ qbj(ec_tion. ' ArgumentTtiv?^^^^ CALDEP 34 WWW.CALDERCOM DEPOSITION OF CALIFORNIA PATROL February 25, 2021 vi:(. _ Mischaracteirlzes ' the witness's, testimony. Vague ;arid) ambiguous. Asked and answered.; CA. Go ahead.) CA: _ A ( : _ l WITNESS: I don' t ,have._an opinion, on (that,^ CA: j'sir... : i didn't have aii opinipnjon ) i t . } BY MR. BRISCOE: . 6 ' .'. ' Q. 6ka.y.'.:Can you t h i n k of any reason why i t .would) not be reasonable f o r someone i n O f f i c e r Ridge's position)' CsC '_to^ wear that-vest?,' ( :( • ^ .?URRAN: Vague and amb i guou s . I . re que s t • i'f) (lOC^ .^counsel's. asking i n a legal sense. Reasonable, under, ( i l " : reievant. statute? •• And the .question ca l i s ; f o r a. legal) (12":: 'conclusion and improper opinion testim.ony anywayBut^^ CL3C: l e t ine- ask f o r that c l a r i f i c a t i o n . . (1^:: (15- :(C : : ( i : : : THE:WITNESS :( •Could:you restate (that?) i i 6 ; _ _BY-_MR. • BRISCOE O (ivC Q. -Yes. Can you think of; ajny),'reason^ why; jj^; (18-1 not have been reasonable f o r O f i i c e r Ridge t o wear that) (19': vest as an accommodation?) Y2F' . '.^^ j_MR. j:URRAN jSame objections as b e f o r e j .21: ^ZIT'' ~ 'THE-.-W'IWES'S Well,:' one C I don' t"''make"tfhat) • (22( ; dec i s ion .and-, two, I think there i s a device that. was(( t23_ (approved f o r him-to wear.) _^24" CMCECMiscof D (25_ , Q. Okay. And you're r e f e r r i n g t o the) CALDEP 35 WWW.CALDERCOM DEPOSITION OF CALIFORNIA PATROL February 25, 2021 (1 Bagk Defender?) (C2(( • A. - Yes',-, s i r . ) CA • Q). •• Okay. So other than the mere existenqe_ofJ another accommodation, can you t h i n k of any other jrea'sohj C(A. why ~it wouiAnot have been reasonable f o r Officer^j-Rid^ ' to wear a weight-bearing vest as an .accommodation'?; ((A :: ,C ^ MR (" CURRAN : qbj ect^ion . JJ/lisStates^ tlC^ Xl( testimony.' Calls f o r a,^legal conclusion and irnproperj opinion ^testimony;. ^ So i t ' s outside the scope of) fio: d'iscoyery^) ,Go ahead and answer, i f you can:! (ii,C' _) • :T'': A^E' ,w'lTNES(S: I don't r e a l l y have an j o p i A.:^h(^:that)^ ~~„1 don'jt make those .decisi6ns(, sq^why) (iy( wouid_ I put_my opinion i n t o something ^^^^ haye no) (14C iisC standing on?) (ie(( ^A(M(7(BRISTOE^^^ i.lf _ ( 'Q. Well, I'm going t o ask the question regardless •vl8.. IJrn; asjcing; you i f you can think of any reason why -itj l9^" would not have -been -reasonable t o allow Of fj-cer* Ridge 'to) (2~0"' wear that vest as an accommodation.) 21 ' ~(.MR- CARRAN,:_ Counsei, thisC.is :FheAhlrd^ 22 You know, t h i s question's improper. You're asking him to) (23" opine and also give you a legal conclusion.) (24_ . Iegai conciusion.^^ I'm asking f o r the opinion^ 9f_a) , CALDEP 36 WWW.CALDERCOM DEPOSITION OF CALIFORNIA PATROL February 25, 2021 )^1. (7sea(soned of f i c e r of the CHP. And i f you want t o ;instruGt) C'2'. •Aim- not t o answer, that's your prerogative, but I'm. going) r 3(. to a.sk.'for-a d i r e c t response.) ()A MR. CURRAN: .Well, I asked yqu e a r l i e r f.or^^^^ CA '. c l a r i f ica.tion a.s t o the adjective ))'reasonaM^^^^ CA ' t_a.lking_ about i n a_statutpry l e g a \ sense_ --J (, A •"•"^C . C'^^C BRISCOE: ::Counsel --) r(8( \_) MR. CURRAN: -- or are you j u s t asking -.-} C)A VA( "";'-' 'TOE^COURT'REPORTER: . Hold on )")''"Wait^' waiT.': ,CLO( Stop. : I ^ cannot^have you both t a l k i n g on Zoom at the same) lA time., I t absolutely does_ not-,_,work.) • (lA .... ^............. ^..^.^^..^ ^' So i'lAgo first: ..T.^.eguest a) (l3_ cjla^rifAoation as t o whether you're talking'about) (14( reasonab.le from the perspective ,of the :relevant statute,) as i n the phrase "reasonable accommodation." _ I f you'r.e) A6' asking i l l s opinion as^ a layperson on. w^al: i s reasonajblev) (l)7( _that'js .outside the sj::ope of discovery;_and improper. •. And) you've asked i t several times, so i t also would be- asked) (19 and answered. But please c l a r i f y what you mean by the; (2(6( adjectlve "reasonable.") A^ M]R. BRISCOE:^ Counsel, your objection i s not)ed_.j (7( CMR J-'^^^^J^^ . J f ((y OU T;r e:(rp t :goIr^ I J ) (23'" BY;_MR .. BRISCOE :J (24 Q. Captain Stover, would you please answer the) (2A question?) CALDEP 37 WWW.CALDERCOM DEPOSITION OF CALIFORNIA PATROL February 25, 2021 (Cl~:C(:":'~:"~(::i^R ACURRS^ . (Cwe ' re ' going to take : a^ shq^^ f '2 • ' bre'ak.) • C J•.'""(•"'••,: ')"MR . ' BRiSCOE': No ,^ I wapt :an ajiswer"f^^^ ("A"" ^ ' .. MR. CURRAN: We'll be back i n f i v e minutes.) CCA" "(No' Te'.'- BY MR. BRISCOE ( -7 , Q-. Captain. Stover- ( . 8,. • _ - • ,. MR^ ^CURRAN:,^ - - you' re not going . .to get; an) C'?i_ •C^?^^^^ -_ • AA?^! t-9-^l?,9 ^ break^) (ll: ( , (Q- 'Aaptain Stover — ) i;^i2 .-, MR. CURRAN: We ' re of,f the , record..) (OC- .BY .MR,.- BRISCOE:) 14'' •' .Q . ^ •-,-' can you .answer' my question?) ;15 . •; ( A i l r i g h t . ; Let the record ref l e c t that- counsel) (16)^ _ah(d' thejwitne.ss are leaving the deposi^ioji_room,^ (lA (18;^ ' • .; • /' (Break taken, ; 2fl , BY,)^^.; BRI SCQE :) ''2A,. - ).Q- 'Captain Stover, we. j u s t had a-bqut _a .ten-minute) (22 Ijcecessj'while I had a question pending. _ What you. dq) (23 , j during -the recess?) (2 A : •' •''-;,~"~~";7:'~^f;^^-;') c'uRRj^'T ~~He" Aa Tke d^ A ITA(me7^anA~\^^ (25_ I g o i n g ,'to:'gq_ into^^^-that .because()that' s ^attorneAeljLeriA CALDEP 38 WWW.CALDEP.COM DEPOSITION OF CALIFORNIA PATROL February 25, 2021 ;i; privirege.) (A. :'C:,.C^: (CJ^R- BRISCOEV wen, l ' m : e n t i t l e d ( tq^ f'A A " ~A~ (^: MA.~ '"CURRAN CAext que s 11 qn. j MR'. BRISCOE: I'm^ entitjLed tq_knqw wh^^^ LA "With a:nd I'm asking the witness.) !:(6( Q). Captain Stover, w i l l you please ,answer?) (_Ad 1 t a l k e d t o attorney Jim Curran.; • Q. - Okay. ,)N,qw that you've had that qppoj'tunity, can) CA you answer my previous question?; CLO( : : : ' ' ' ~'~~L^'^^^ ~ wen,^ l e t • s have itCre(ad b(aciA^ (ll' ;^guess - -) .A C(^ • ^^F- BRI SCOE"^ i ' 11 re - ask (the ques(ti(o(n(:) ( l l : :A( ... C -^^- CURRAN: -- I 've got tq assert the sime) OA' _ obj ectiqn.). 115. --^Y]m^r BRISCOE:) (1&^ _ 1 '__A_"'5^Pt5^i^_Stover, ;can „yqu -think of. any^jceasqh wjfiyj i t would nqt ha.ve been- reasonable t o a l l o w Of f ic,er__Ridge(! (18 to wearthe w e i g h t - b e a r i n g vest?) (i9( ( (c. CC ( C^^^C(CURRAN:"C Objec'tiqn)(( C a l l s for(^^^ Ao" N . conclusion.- , C a l l s f o r improper o p i n i o n t e s t i m o n y . ) ' (2)]C Outside -the . scope_qf A i s c q v e r y . • Vague and' ambi.guqus a^^) i22( 'asked'and answered.) (23_ • ^ . . THE_- WITNESS : ^1) dbn' t have an . o p i n i o n and^ I (24( jipn) t_jT\ak(e those decisions.) (2^^' 77) CALDEP 39 WWW.CALDERCOM DEPOSITION OF CALIFORNIA PATROL February 25, 2021 il :B Y_ MR .J BR_I S COE : j (:A (_ Q.. I ' m nqt asking^fqr:your opinion. I want .you to) C(3( l i s t e n carefu_liy• to my question'. I'm ask;ing as, y(6u_si;t) C'4( "here'jtdday,- given a i l your experience i n the CHP, -which) f "5 " is subst(antlaA^can you t h i n k of any •'reasqn jA7hy_^_i^^ nqt^ have • been reasonable t o allow O f f i c e r Ridge -to ..wear) i'T tiie^ weight-bearing vest .that he_'requested^) L'8 „ ' "C- ~~ :" . ' M ( A ^ CURRAN:. .Same obj ections _and n^^ '. s )truly)' (•(.(A ) badgering .^^ .So - -) (OL( (:fY( M)C( BR rscM (lA .0.,. Yes or noA (lA .. -. MR^., CURRAN : i f ;,you p e r s i s t t h i s . way,) AA ^Coun^.e 1. ;- -) C^C'W'MAT BRISCOET) (i5(: . ^ Q'. Can you t h i n k of a single reason; yes or nq?) (16) • C' ^ MR. CCURRAN: Counsel, you don' t get_to ciAjrue) (iA( o'ff _ j u s t by saying, '-Yes o r no?" Thi^ question is'not) CLS: proper. I t ' s , been asked and answered m u l t i p l e time-S,.) CCA. i:'m;^.wi:iling _to_meet and_ conf er r i g l i t _ n_ow^ i f you_can) (20C^ (expiain_tq_me y o u r t h e s i s on why t h i s isn't- im testi.mony( or a l e g a l conclusion.( ^221 ) , 'J""-_ _ M_R._BRISCOE:_ ,Are_ you i n s t r u c t i n g him not tq) (23 answer?) )2:4 MR. CURRAN: No.) '•'25 > ,Go) ahead and. -.-:_go ahead and (answ^r ,;^ if__Y°A "^^^'^^ CALDEP 40 WWW.CALDER.COM DEPOSITION OF CALIFORNIA PATROL February 25, 2021 C..A)-'.;S.i^;J ( AT""'"^')^"^""^"('(AHA'WITOE"SS : " " I 'don '"t - - .1 -don-.'t jhaye; an opinion) L 3 ' -.dn.-.that.. :^._ '_)jC^^L-BRISCOE,:- 'Okay. - Mr.j-.Car^ '5.; • 'fire "a -motion over tAis)(ques(tiqn,;.,;_;ju;S .so, you- know))' (((6" " ") • C .C7 ^ .:_MR: C CURRSN :C ' ,lKno ck_ your self' out.) "7^CC A A M R ( : ( A ^ I S C ^ C:8(.,.:TCA'TCQi ^^'^s^ Y°]^ - ^ ^ ^ s^pjsssed t o anybqdyi.t^h-ls" 1^^ C)?A( .reasonable accommodation,,..meaning t h e weight'-bearIng)- flO;;'Cvq^t?) . • ~ (ii::::(;)C'" A'T(C(Nqtc('t'hat( I 12 . Q. Do you t h i n k i t would be dangerous f o r a highway 13 patrolman t o wear a w e i g h t - b e a r i n g vest on t h e job? 14 MR. CURRAN: Objection. Incomplete 15 h y p o t h e t i c a l . Lacks f o u n d a t i o n . C a l l s f o r improper 16 o p i n i o n testimony. 17 THE WITNESS: Can you s t a t e i t again, sir? 18 BY MR. BRISCOE: 19 Q. Do you t h i n k i t would be dangerous f o r a 20 patrolman-to wear a w e i g h t - b e a r i n g v e s t l i k e t h e one 21 O f f i c e r Ridge requested? 22 • MR. CURRAN: Same o b j e c t i o n s . 23 THE WITNESS: That's compound. 24 MR. CURRAN: ' And I ' l l add compound. 25- THE WITNESS: I t c o u l d be, yes. CALDEP 41 WWW.CALDEP.COM EXHIBIT B Sanchez v. Jiles, Not Reported in J . Supp. (2012) 2012 WL 13005996 substantive due process under' § 1983; (3) false arrest and 2012 WL 13005996 iniprisonnient; (4) batteiy: (5) negligence; and (6) violation Only the Westlaw citation is currently available. ofthe Bane Act, ' California Civil Code § 51.7. United States District Court, C D . California. On April 2, 2012, the parties filed assorted motions . Donald SANCHEZ, individually and as Defendants filed eight motions that seek to: (1) exclude successor-in-interest; Gabriel Sanchez; Malachi evidence that no gun was found at the scene of the Sanchez; J.S., a minor by and through his shooting; (2) exclude photographs of decedent's injuries guardian ad litem Yvonne Varela, Plaintiffs, taken at his autopsy; (3) exclude the testimony of plaintiffs' V. expert Roger Clark; (4) admit the prior felony conviction Sergeant Casey JILES, Defendant. of vvitness Elizabeth Morales; (5) exclude evidence related to defendant's alleged failures to investigate and collect Case No. CV 10-09384 M M M (OPx) evidence pertaining to the shooting; (6) exclude references . I to an alleged conspiracy by the County to cover up the Signed 06/14/2012 .circumstances surrounding the shooting, including Clark's testimony on this subject; (7) bifurcate the claim for punitive Attorneys and Law Firms damages; ^ and (8) exclude evidence related to the testimony Dale K. Galipo, Law Offices of Dale Galipo, Woodland of certain eyewitnesses. Plaintiffs oppose all these motions. Hills, CA, Jon R. Schlueter, Peter B. Schlueter, Schkieter and Schlueter, Redlands, CA, for Plaintiffs. Plaintiffs for their part have filed seven motions that seek to exclude (1) the decedent's prior contacts with law Barry Hassenberg, Dana Alden Fox, Gregory Ryan, Lewis enforcement; (2) the decedent's drug and alcohol use; (3) what Brisbois Bisgaard & Smith LLP, Los Angeles, CA, for defendant Jiles may have known or not known at the time of Defendant. the shooting about an incident that allegedly took place earlier in the day and that involved the decedent brandishing a gun at a passerby; (4) the testimony of defense expert Vina Spiehler; FINAL ORDER ON MOTIONS (5) the testimony of defense expert William Lewinski; (6) the testimony of defense expert Curtis Cope; and (7) the MARGARET M. MORROW, UNITED STATES DISTRICT testimony of defense expert Steve Rafter Defendants oppose JUDGE the second through seventh motions, but do not oppose the *1 On December 9, 2010, plaintiffs Donald Sanchez, as motion to exclude evidence of Don Richard's prior contacts successor-in-interest, Gabriel Sanchez, Malachi Sanchez, and with law enforcement. J.S., a minor, by and through his guardian ad litem Yvonne Varela, filed suit against the County of San Bemardino, *2 On April 30, 2012, the court held a final pretrial Sergeant Casey Jiles, and Deputy Antekeier, as well as conference, issued a tentative order regarding the motions, and heard argument on the motions. The court directed fictitious defendants.' The complaint concerns Jiles' and a the parties to file supplemental briefs and offers of proof fictitious defendant's shooting of Don Richard Sanchez and regarding certain motions, so that it could better understand his subsequent death. ^ the nature of the dispute. It also noted that shortly before the pretrial conference, defendants filed an ex parte application The complaint alleged eleven claims under ! 42 U.S.C. § seeking to exclude the testimony of one of plaintiffs' 1983 and state law. On February 24, 2012, the court entered experts, Connie Caruthers. Because plaintiffs had not had an an order on the parties' stipulation to dismiss individual opportunity to respond, the court noted that it would issue a defendant Antekeier;"' on February 29, 2012, it entered an ruling on that motion once plaintiffs filed opposition. order on the parties' stipulation to dismiss five of the claims This order addresses the supplemental briefs and evidence for relief'' The claims that remain to be tried are: (1) filed and decides all of the pending motions. excessive force under i 42 U.S.C. § 1983; (2) violation of WESTLAW © 2Q21 Thomson F'^euters. No daim to original U.S. Government Works. Sanchez v. Jiles, Not Reported in i =d. Supp. (2012) 2012 WL 13005996 Defendants move to exclude any argument or evidence that I. DISCUSSION a gun was not found at the scene of the shooting. ^ They contend such evidence is "post-hoc" and is irrelevant to the A. Legal Standard Governing Excessive Force crucial inquiry, which is the reasonableness of Jiles's use The Fourth Amendment protects individuals against the use of force based on circumstances known to him at the time. of "excessive force—deadly or not—in the course of an arrest, Defendants rely heavily on the Seventh Circuit's decision in investigatory stop, or other 'seizure' " by a law enforcement ' .Sherrod v. iierry, 856 F.2d 802 (7th Cir 1988) (en banc), officer Graham v. Connor, 490 U.S. 386, 395 (1989); see where the court reasoned as follows: also ' ^^Blanford v. Sacramento County, 406 F.3d 1110, "Knowledge of facts and circumstances gained after the 1115 (9th Cir 2005). State officials "may use only such fact (that the suspect was unarmed) has no place in force as is objectively reasonable under the circumstances." the trial court's or jury's proper/705^-/ioc. analysis of the i LaLonde-v. County of Riverside, 204 F.3d 947, 959 (9th reasonableness of the actor's judgment. Were the rule otherwise, as the trial court ruled in this instance, thejury Cir. 2000) (citing ' Graham, 490 U.S. at 397; « White would possess more information than the officer possessed V. Pierce County, 797 F.2d 812, 815 (9th Cir 1986)). To when he made the crucial decision. Thus, we are convinced assess whether a use of force was objectively reasonable, one that the objective reasonableness standard ... requires that must "balanc[e] the 'nature and quality of the intrusion'-on Officer Berry's liability be determined exclusively upon [the] person's liberty with the 'countervailing governmental an examination and weighing of the information Officer interests at stake.'..." t Smith v. City ofHemet, 394 R3d 689, Berry possessed immediately prior to and at the very moment he fired the fatal shot. The reception of evidence 700 (9th Cir 2005) (quoting \ Graham, 490 U.S. at 396). or any information beyond that which Officer Berry had and reasonably believed at the time he fired his revolver In Graham, the Supreme Court held that factors that are is improper, irrelevant and prejudicial to the determination relevant in assessing whether a use of force was objectively of whether Officer Berry acted reasonably 'under the reasonable include "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of circumstances. Id at 805. the officers or others, and whether he is actively resisting *3 The court cautioned that factfinders must not "second- arrest or attempting to evade arrest by flight." t Graham. guess an officer's split-second reasonable judgment to protect 490 U.S. at 396. The Court did not limit the inquiry to himself and those around him through the use of deadly these factors, however " 'Because the test of reasonableness force; rather, courts and juries must determine the propriety under the Fourth Amendment is not capable of precise of the officer's actions based upon a thorough review of the definition or mechanical application,' the reasonableness of knowledge, facts and circumstances known to the officer at a seizure must instead be assessed by carefully considering the time he exercised his split-second judgment as to whether the objective facts and circumstances that confronted the the use of deadly force was warranted." Id. Defendants argue arresting officers." i Smith, 394 F.3d at 701 (quoting that the same considerations apply here, and that the jury's focus must be on Jiles's knowledge and perception of the facts ' Graham, 490 U.S. at 396); see also ' Hammer v. Gross, at the time of the shooting, not on facts that surfaced only after 932 R2d 842, 846 (9th Cir 1991) ("The question is not simply the incident. whether the force was necessary to accomplish a legitimate police objective; it is whether the force used was reasonable in Defendants read Sherrod too broadly. In circumstances where light of all the relevant circumstances" (emphasis original)). the facts are undisputed and there are no material questions as to what the officer saw leading up to and at the time of B. Defendants' Motions the shooting, the Sherrod court's reasoning has significant persuasive force. As the Fourth Amendment analysis properly focuses on the reasonableness of the officer's conduct given \. Motion to Exclude Evidence Related to the the facts he knew at the tinie, evidence gained after the fact has Absence ofa Gun at the Scene of the Shooting limited, if any, probative value. What value it does, moreover, may be outweighed by the danger of unfair prejudice, as the V'/E;STLAV-\,' © 2021 Thomson Reuters, No ciaim to original U.S. Governrrient Works. Sanchez v. Jiles, Not Reported in red. Supp. (2012) 2012 WL 13005996 jury may be improperly influenced by the absence o f a gun Rule 403 is appropriate, evidence must create a risk of and fail to apply the correct legal standard, which considers unfair prejudice, "not simply the prejudice that any relevant what facts the officer knew at the time he decided to sue force. evidence would create." United States v. Loudon, No. CR 06494 TUC RCC, 2006 WL 3694861, *2 (D. Ariz. Dec. 8, In this case, however, the parties advance competing accounts 2006); FED.R.EVID. 403. As noted, evidence regarding the of the incident, and thejury will have to weigh the credibility absence of a gun is highly probative in assessing respective of each side's witnesses and determine who to believe. witnesses' credibility, and will aid the jury in resolving Defendants contend that the decedent had his left hand in conflicting eyewitness accounts. Consequently, its value his pocket at the time of the shooting, while plaintiffs assert outweighs any risk of unfair prejudice.^ that his hands—which were empty—were actually in the air They assert that an independent eyewitness will testify to Defendants argue that unlike cases where evidence this fact. The absence of a gun at the scene therefore goes concerning the existence of a gun directly contradicts an directly to the credibility of the respective witnesses, as it may officer's version of events, Jiles will not testify that he actually corroborate one account and discredit another The probative saw a gun in the decedent's hand. Instead, he will state that value of the evidence is therefore substantial. See Bradford he saw the decedent reaching into his pocket, and that he V. City of Modesto, f United States v. Finley, 301 F.3d 1000, 1007 necessary to establish the facts identified above. A number of (9th Cir 2002) ("[Rule 702] consists of three distinct but the photographs, particularly those taken at the scene, appear related requirements: ( I ) the subject matter at issue must to be duplicative; the court can discern no possible purpose be beyond the common knowledge of the average layman; for admitting several of them, such as. a photograph ofthe (2) the witness must have sufficient expertise; and (3) the decedent's body in an open body bag on a table, evidently state of the pertinent art or scientific knowledge permits taken before the autopsy commenced. Plaintiffs bear the burden of showing that the exhibits are admissible under Rule the assertion of a reasonable opinion"); '^)sterner v. U.S. 401 and that their probative value substantially outweighs Drug Enforcement .4gency, 467 F.Supp.2d I0I7, 1033 (S.D. any danger of undue prejudice under Rule 403. Despite this Cal. 2006) ("There are three basic requirements that must fact, they have done little more than identify a subset of be met before expert testimony can be admitted. First, the the hundreds of photographs initially identified, and offer evidence must be useftil to a finder of fact. Second, the expert conclusory and unhelpful argun-ients as to why any should be witness must be qualified to provide this testimony. Third, the admitted. They simply repeat the abstract arguments made in proposed evidence must be reliable or trustworthy" (citations their opposition. omitted)). Before admitting expert testimony, the trial court must Defendants' response suggests that they have no objection make "a preliminary assessment of whether the reasoning to four of the photographs plaintiffs have identified. In or methodology underlying the testimony is scientifically defendants' submission, they are labeled RvSB Nos. 1419- valid and of whether that reasoning or methodology properly 20 and 1423-24. Plaintiffs' proffer does not provide any can be applied to the facts in issue." : Daubert v. Merrell identifiers for them. As defendant does not object to the Dow Pharmaceuticals. Inc., 509 U.S. 579, 592-93 (1993). admissibility of these photographs, the court will admit them In conducting this preliminary assessment, the trial court by stipulation. is vested with broad discretion. See, e.g., i. General Elec. Beyond these four photographs, plaintiffs had provided no Co. V. Joiner, 522 U.S. 136, 142 (1997); i United States v. justification for placing all fifty photographs before thejury. Espinosa, 827 F.2d 604, 611 (9th Cir 1987) ("The decision Accordingly, the court grants defendants' motion as to the to admit expert testimony is committed to the discretion of balance of the photographs. the district court and will not be disturbed unless manifestly erroneous"). "The party offering the expert bears the burden of establishing that Rule 702 is satisfied." Sundance Image 3. Motion to Exclude the Testimony Tech., Inc. v Cone Editions Pre.?s. Ltd, No. CV 02-2258 JM of Plaintiffs Expert Roger Clark (AJB), 2007 WL 935703, *4 (S.D. Cal. Mar 7, 2007) (citing [ ^ A l l i s o n V McGhan Medical Corp., l84F.3d 1300, 1306 Defendants next move to exclude "certain testimony of Plaintiffs police practices expert, Roger Clark." Rule 702 (I Ith Cir 1999), in turn citing I Daubert, 509 U.S. at 592 governs the admissibility of expert testimony. Under Rule n. 10)); see also Walker v. Contra Costa Counly, No. C 03- 702, 3723 TEH, 2006 WL 3371438, * l (N.D. Cal. Nov. 21, 2006) (same).^" *7 " [ i ] f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the wgSTLAW ® 2021 Thomson Reuters. No claim to oriainal U.S. Governn-ient Works.