Settrini v. City of San Diego

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 WINSTON DURRELL SETTRINI, Case No.: 3:20-cv-02273-RBM-BGS

12 Plaintiff,

ORDER DENYING DEFENDANTS’

13 v. MOTION IN LIMINE NO. 2 TO

ADMIT EVIDENCE OF CRIMINAL

14 CITY OF SAN DIEGO, et al.,

ARRESTS AND HISTORY

15 Defendants.

[Doc. 63]

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18 Presently before the Court is Defendants’ motion in limine No. 2 to admit evidence

19 of criminal arrests and history (“Motion in limine No. 2”). (Doc. 63.) Plaintiff filed a

20 memorandum of points and authorities in opposition to Defendants’ Motion in limine No.

21 2 (“Opposition”). (Doc. 71.)

22 In Defendants’ Motion in limine No. 2, Defendants seek to admit Plaintiff’s prior

23 criminal history, including: (1) a 2010 conviction for driving under the influence (“DUI”)

24 where Plaintiff received five years of probation and multiple warrants were issued for

25 Plaintiff’s violating probation; (2) a 2011 conviction for DUI, driving with a suspended

26 license, and driving without a license where Plaintiff received a 34-day jail sentence, five

27 years of probation, and had multiple warrants issued for probation violations; and (3) five

28 arrests from 2010 to 2019, including an incident two months before the instant case where

1 Plaintiff was arrested for allegedly disrupting a police investigation while intoxicated in

2 the Gaslamp district. (See Doc. 63 at 2–3.) Defendants argue Plaintiff’s criminal arrest

3 and conviction history should be admitted (1) under Federal Rule of Evidence 404(b)(2)

4 because it tends to prove Plaintiff’s motive to flee and resist arrest and (2) under Federal

5 Rule of Evidence 401 because it is relevant to assessing the cause and extent of Plaintiff’s

6 asserted damages due to emotional distress. (See id. at 3–5.) Defendants also assert

7 Plaintiff’s criminal arrest and conviction history is not barred by Federal Rule of Evidence

8 403. (See id. at 6.)

9 The Court takes the matter under submission without oral argument pursuant to Civil

10 Local Rule 7.1(d)(1).

11 For the reasons discussed below, Defendants’ Motion in limine No. 2 is DENIED.

12 I. BACKGROUND

13 On July 21, 2019, Plaintiff and a friend met at a mutual friend’s house at

14 approximately 9:00 p.m. and made plans to go “out on the town.” (Doc. 37, Joint Statement

15 of Disputed and Undisputed Facts (“SOF”) at 1.) Plaintiff and his friend left the mutual

16 friend’s home and went to a bar called The Office, in the North Park neighborhood of San

17 Diego. (Id. at 2.) After exiting the bar, Plaintiff saw an unknown male and an unknown

18 female engaged in an altercation across the street. (Id.) Plaintiff approached the couple to

19 break up the altercation. (Id.) Plaintiff was then “punched in the face by the unknown

20 male with such force that it ‘rung [Plaintiff’s] bell,’ causing Plaintiff to stumble backwards

21 and fall to the ground on his rear-end.” (Id.)

22 At that time, Defendants Duncan and Quintanilla, police officers employed by the

23 City of San Diego, were on patrol. (Id.) The officers were in full uniform and were driving

24 in a marked police vehicle. (Id.) Defendants Duncan and Quintanilla were driving north

25 on 30th Street, approaching University Avenue in the North Park neighborhood of San

26 Diego, when they saw several people congregated in the middle of the street intersection.

27 (Id.)

28 Plaintiff approached a group of people on the southeast corner of 30th Street and

1 University Avenue. (Id.) Defendant Duncan observed one of the bystanders point at

2 Plaintiff, and the bystander said, “This guy right here, get him!” (Id.) Defendant Duncan

3 attempted to detain Plaintiff by grabbing the back of Plaintiff’s arm. (Id.) Plaintiff pulled

4 away from Defendant Duncan and began running eastbound on University Avenue. (Id.)

5 Defendant Duncan began chasing after Plaintiff on foot and yelled out to Plaintiff to

6 “Come here Mother Fucker.” (Id.) Defendant Quintanilla got into the police car and

7 followed Defendant Duncan’s foot pursuit of Plaintiff. (Id.) Plaintiff continued to run

8 eastbound on University Avenue for approximately one block before turning southbound

9 on Ray Street. Plaintiff then turned into an alleyway with Defendant Duncan still in

10 pursuit. (Id. at 2–3.)

11 Upon observing Plaintiff and Defendant Duncan enter the alleyway, Defendant

12 Quintanilla got out of his police car and ran toward Plaintiff and Defendant Duncan in the

13 alleyway. (Id. at 3.) As Plaintiff was running into the alley, he fell, looked back, and saw

14 that he was being pursued by a police officer. (Id.) Officer Quintanilla caught up to

15 Plaintiff, grabbed him, and pulled Plaintiff to the ground. (Id.) Plaintiff came to rest on

16 his back, and Defendant Quintanilla delivered two knee strikes to Plaintiff’s torso. (Id.)

17 The officers then arrested Plaintiff and took him first to the hospital, and then to jail. (Id.)

18 II. DISCUSSION

19 I. Other Bad Acts

20 Under Federal Rule of Evidence 404(b)(1), “[e]vidence of any other crime, wrong,

21 or act is not admissible to prove a person’s character in order to show that on a particular

22 occasion the person acted in accordance with the character.” “The rule is designed to avoid

23 a danger that the jury will punish the defendant for offenses other than those charged, or at

24 least that it will convict when unsure of guilt, because it is convinced that the defendant is

25 a bad man deserving of punishment.” United States v. Brown, 880 F.2d 1012, 1014 (9th

26 Cir. 1989) (internal quotation marks and citations omitted).

27 However, under Federal Rule of Evidence 404(b)(2), such evidence “may be

28 admissible for another purpose, such as proving motive, opportunity, intent, preparation,

1 plan, knowledge, identity, absence of mistake, or lack of accident.” “The use of evidence

2 pursuant to this rule ‘must be narrowly circumscribed and limited’ and ‘may not be

3 introduced unless the government establishes its relevance to an actual issue in the case.’”

4 United States v. Garcia-Orozco, 997 F.2d 1302, 1304 (9th Cir. 1993) (quoting United

5 States v. Hodges, 770 F.2d 1475, 1479 (9th Cir. 1985) (internal quotation omitted)).

6 In considering the admission of evidence under Rule 404(b)(2), the Ninth Circuit

7 requires that “(1) the evidence tends to prove a material point; (2) the other act is not too

8 remote in time; (3) the evidence is sufficient to support a finding that defendant committed

9 the other act; and (4) (in certain cases) the act is similar to the offense charged.” United

10 States v. Cox, 963 F.3d 915, 924 (9th Cir. 2020) (internal citations omitted).

11 Defendants argue that Plaintiff’s prior arrests and convictions tend to prove that he

12 had a motive to resist arrest during the instant case because he did not want to face harsher

13 penalties from a subsequent arrest and conviction. (See Doc. 63 at 3–5.) Plaintiff argues

14 that, in civil excessive force cases, federal courts typically exclude evidence of a civil

15 plaintiff’s prior arrests as impermissible character evidence. (See Doc. 71 at 5.)

16 The Ninth Circuit has not squarely addressed the admission of a plaintiff’s criminal

17 arrest and conviction history under Rule 404(b)(2) to prove a motive to resist arrest.

18 However, in Brown v. Grinder, Case No. 2:13-cv-01007-KJM-KJN, 2019 WL 2337107

19 (E.D. Cal. June 3, 2019), an excessive force case, a district court excluded evidence of the

20 plaintiff’s criminal history, a toxicology report, and the illicit drugs found in his car. Id. at

21 *2–3. Like the Defendants here, the defendants there argued this evidence showed a

22 motive to violently resist arrest and attempt to flee. See id. The district court reasoned

23 that, beyond the fact that the defendant officers were unaware of these items when they

24 shot the plaintiff, the defendant officers’ argument rested on “speculation that a suspect

25 who knows he is in possession of illicit drugs, used drugs in the past, committed crimes in

26 the past or has tattoos that may be identified as gang tattoos has a motive to violently resist

27 arrest.” Id. at *3. The district court also found that the probative value of the evidence in

28 assessing Plaintiff’s motive to violently resist arrest was substantially outweighed by the

1 danger of unfair prejudice under Rule 403. Id.

2 In Monroe v. Town of Haverstraw, No. 20-cv-10944 (PMH), 2022 WL 16751919

3 (S.D.N.Y. Nov. 7, 2022), an excessive force case, a district court considered whether to

4 admit the plaintiff’s prior convictions under Rule 404(b)(2) as proof of the plaintiff’s intent

5 or motive to resist arrest. Id. at *2. The district court reasoned that the prior convictions

6 were inadmissible for that purpose because the defendants failed to demonstrate “specific

7 information in plaintiff’s criminal record evincing an intent or motive to resist arrest, such

8 as an outstanding warrant at the time of the incident in question.” Id. (citing Hartman v.

9 Snelders, No. 04-cv-01784 (CLP), 2010 WL 11626508, at *8 (E.D.N.Y. Jan. 28, 2010))

10 (emphasis added). The district court also found that the plaintiff’s motive to resist arrest

11 was not relevant to any claim or defense, as the issue at hand was whether the defendants

12 used excessive force, and while the plaintiff’s resistance was relevant to that question, the

13 plaintiff’s motivation for resisting was not. Id.

14 The Court concludes that Plaintiff’s prior arrests and convictions are not admissible

15 under Rule 404(b)(2) as evidence of motive to resist arrest because they do not tend to

16 prove a material point at trial. In Castro v. Cnty. of Los Angeles, No. 2:13-cv-06631-

17 CAS(SSx), 2015 WL 4694070, at *3 (C.D. Cal. Aug. 3, 2015), the district court excluded

18 the plaintiff’s prior criminal arrests and convictions as not relevant to the plaintiff’s

19 excessive force claim because the defendant officer was not aware of the plaintiff’s

20 criminal history at time of arrest. The district court also found such evidence was

21 inadmissible character evidence because the plaintiff’s flight was not disputed, so the

22 plaintiff’s motive to flee was not a fact of consequence in determining the reasonableness

23 of the defendant officer’s use of force. Id.

24 Here, Defendants do not allege that they were aware of Plaintiff’s criminal history

25 at the time of pursuit and arrest. (See Doc. 63.) Rather, Defendants effectively argue that

26 every individual with a prior arrest or conviction has a motive to resist future arrest and

27 that makes their criminal history admissible. Without more, such an inference is

28 speculative. See Monroe, 2022 WL 16751919, at *2; Brown, 2019 WL 2337107, at *3.

1 Additionally, while a plaintiff’s fleeing or resisting arrest is relevant to the reasonableness

2 of a police officer’s use of force, a plaintiff’s motivation for fleeing or resisting arrest is

3 not. See Monroe, 2022 WL 16751919, at *2.

4 In light of the Court’s ruling that Plaintiff’s criminal arrests and convictions do not

5 tend to prove a material point at trial, the Court need not address the remaining Rule

6 404(b)(2) factors. The Court also concludes, under Rule 403, that the scant or minimal

7 probative value of Plaintiff’s criminal arrest and conviction history is substantially

8 outweighed by the danger of unfair prejudice. See Brown, 2019 WL 2337107, at *3.

9 II. Damages

10 Defendants argue that Plaintiff’s criminal arrest and conviction history is relevant

11 under Federal Rule of Evidence 401 to his claim for damages due to emotional distress

12 because any purported emotional distress Plaintiff suffered may have been caused by a

13 prior arrest or conviction. (See Doc. 63 at 5.) Plaintiff does not directly address

14 Defendants’ argument. (See Doc. 71.)

15 The Court concludes that Plaintiff’s criminal arrest and conviction history is relevant

16 to his claim for damages due to emotional distress. See Knudsen v. Welsh, 872 F.2d 428,

17 428 (9th Cir. 1989) (in false imprisonment and excessive force case, finding magistrate

18 judge did not abuse their discretion in admitting plaintiff’s prior arrests and contacts with

19 police with a limiting instruction that the evidence was relevant only to damages); Peraza

20 v. Delameter, 722 F.2d 1455, 1457 (9th Cir. 1984) (in excessive force case, finding trial

21 court did not abuse its discretion in admitting evidence of plaintiff’s subsequent encounters

22 with police with a jury instruction limiting consideration of the evidence to damages).

23 However, the minimal probative value of this evidence is substantially outweighed

24 by the danger of unfair prejudice. See Castro, 2015 WL 4694070, at *4 (finding plaintiff’s

25 prior periods of incarceration relevant to noneconomic damages, but any probative value

26 of the nature of the convictions leading to such periods of incarceration was substantially

27 outweighed by the danger of unfair prejudice); Green v. Baca, 226 F.R.D. 624, 657 (C.D.

28 Cal. 2005) (finding that, while periods of incarceration were relevant to damages, the

1 convictions leading to earlier incarceration were not and the prejudicial impact would

2 substantially outweigh any probative value). There is no indication in Plaintiff’s criminal

3 history that he previously experienced excessive force or unlawful arrest from police

4 officers. (See Doc. 63 at 3.) Nor do Defendants contend that Plaintiff’s criminal history

5 involves similar facts to the case at hand such that any damages may have been caused by

6 a similar incident. (See id.) See Lucero v. Ettare, No. 15-cv-02654-KAW, 2017 WL

7 11693747, at *2 (N.D. Cal. June 7, 2017) (“Even if there was any probative value [of

8 Plaintiff’s prior arrests], the probative value is minimal given the lack of similar facts

9 between the prior arrests and the instant case, while the potential for unfair prejudice is

10 significant as prior arrests may suggest to a jury that Plaintiff is a bad actor.”); Monroe v.

11 Griffin, No. 14-cv-00795-WHO, 2015 WL 5258115, at *2–3 (N.D. Cal. Sept. 9, 2015) (in

12 false arrest and excessive force case, finding plaintiff’s prior arrests not sufficiently similar

13 enough to the arrest at issue to pass muster under Rule 403). Thus, Plaintiff’s prior arrests

14 and convictions are not admissible under Rule 403 as relevant to causation or damages.

15 Plaintiff is advised that if he opens the door to evidence of his prior arrests or

16 convictions, for example, by framing his emotional distress as encompassing a broader fear

17 of law enforcement, Defendants may seek reconsideration of this motion, and the Court

18 will reconsider this ruling and whether a limiting instruction would be appropriate. See

19 Monroe, 2015 WL 5258115, at *3 (warning plaintiff that opening the door to evidence of

20 prior arrests by broadly framing emotional distress claim as defendants causing of all of

21 plaintiff’s issues could lead to reconsideration of ruling excluding such evidence).

22 CONCLUSION

23 Accordingly, Defendants’ Motion in limine No. 2 (Doc. 63) is DENIED.

24 IT IS SO ORDERED.

25 DATE: August 25, 2023

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HON. RUTH BERMUDEZ MONTENEGRO

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UNITED STATES DISTRICT JUDGE

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