Estate of Manuel Diaz v. City of Anaheim

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ESTATE OF MANUEL DIAZ; No. 14-55644

GENEVIEVE HUIZAR, an individual,

Plaintiffs-Appellants, D.C. No.

8:12-cv-01897-

v. JVS-RNB

CITY OF ANAHEIM, a California

municipal entity; NICK OPINION

BENNALLACK, Officer,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of California

James V. Selna, District Judge, Presiding

Argued and Submitted July 7, 2016

San Francisco, California

Filed August 24, 2016

Before: Marsha S. Berzon and John B. Owens, Circuit

Judges, and Algenon L. Marbley,* District Judge.

Opinion by Judge Owens

*

The Honorable Algenon L. Marbley, United States District Judge for

the Southern District of Ohio, sitting by designation.

2 ESTATE OF DIAZ V. CITY OF ANAHEIM

SUMMARY**

Civil Rights

The panel reversed the district court’s judgment, entered

following a jury trial in favor of defendants, in an action

alleging that a City of Anaheim police officer used excessive

force when he shot and killed Manuel Diaz.

The panel held that the district court erred by refusing to

bifurcate the liability phase from the compensatory damages

phase of the trial and as a result the district court admitted

inflammatory evidence introduced by the defendants that had

no relevance to the key issue in the case, whether defendant

acted within the law when he shot Diaz.

The panel remanded for a new trial with guidance for the

district court to: (1) closely review under Federal Rule of

Evidence 401 and 403 evidence of Diaz’s drug and gang

affiliation and admit the evidence only to the degree that it

was connected to the reaction of Diaz’s mother to his death;

(2) not permit expert testimony about gangs to be admitted if

plaintiffs are willing to stipulate that Diaz was a gang

member; (3) sufficiently consider that a limiting instruction

may not sufficiently mitigate the prejudicial impact of certain

evidence; and (4) when striking testimony, to clearly identify

what testimony was improperly given, and instruct the jury

that it may not be considered.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

ESTATE OF DIAZ V. CITY OF ANAHEIM 3

The panel affirmed the district court’s denial of plaintiffs’

motion for judgment as a matter of law on the excessive force

claim, holding that this question was one for the jury. The

panel noted that while plaintiffs presented substantial

evidence that the force was unreasonable, defendants also

presented substantial evidence to support their position.

COUNSEL

Dale K. Galipo (argued) and Melanie T. Partow, Law Offices

of Dale K. Galipo, Woodland Hills, California; Angel

Carrazco, Jr., Carrazco Law, A.P.C., Tustin, California; Paul

L. Hoffman, Schonbrun Desimone Seplow Harris &

Hoffman, LLP, Venice, California; Humberto Guizar,

Humberto Guizar Law Offices, Montebello, California; for

Plaintiffs-Appellants.

Moses W. Johnson, IV (argued), Assistant City Attorney,

Anaheim, California; Steven J. Rothans and Jill Williams,

Carpenter, Rothans & Dumont, Los Angeles, California; for

Defendants-Appellants.

OPINION

OWENS, Circuit Judge:

Anaheim Police Officer Nicholas Bennallack shot and

killed Manuel Diaz during a mid-day encounter in July 2012.

Diaz’s estate and mother (“Plaintiffs”) sued Officer

Bennallack and the City of Anaheim (“Defendants”) for

federal civil rights violations and proceeded to a jury trial, but

lost. Plaintiffs argue they should receive a new trial due to

4 ESTATE OF DIAZ V. CITY OF ANAHEIM

inflammatory evidence introduced by Defendants that had no

relevance to the key issue in the case—whether Officer

Bennallack acted within the law when he shot Diaz. Because

the district court abused its discretion in failing to bifurcate

liability from compensatory damages—thus admitting this

evidence at the liability phase of the trial—and the error was

harmful, we reverse and remand.

I. FACTS AND PROCEDURAL HISTORY

A. Fatal Shooting of Manuel Diaz

While on routine patrol in gang territory the afternoon of

July 21, 2012, Officers Bennallack and Heitmann drove their

unmarked black Crown Victoria into an alley off of Anna

Drive in Anaheim, California. They were not responding to

a call or plea for help, though Bennallack had arrested a man

for gun possession there two weeks prior.

In the alley, Bennallack saw Diaz and another man

standing near a parked vehicle, with a third man inside.

Bennallack neither recognized Diaz nor saw anything in his

hands. But, Bennallack thought that criminal activity was

afoot, and that Diaz was a gang member, based on his

experience in the area and how Diaz was dressed.

Shortly after the officers drove into the alley, and before

they said anything to Diaz, Diaz ran away. The officers

pursued on foot. Officer Heitmann said he saw Diaz

clutching an object near his waist before he took off, but

Bennallack—the shooter—did not. While initially hoping to

have a consensual conversation with Diaz, once the chase

began Bennallack intended to arrest him for the misdemeanor

offense of resisting, obstructing, or delaying a police officer.

ESTATE OF DIAZ V. CITY OF ANAHEIM 5

As the officers chased Diaz, they could not see his hands.

Based on how Diaz’s arms were not “pumping” as expected

and the outward position of his elbows, Bennallack claimed,

he thought Diaz’s hands were in his waistband. Another

witness did not see Diaz put his hands at his waistband. Both

officers said that Diaz looked back at them while he was

running away, which they took as his attempt to “acquire a

target.”

The officers yelled commands such as “stop,” “get on the

ground,” and “show me your hands,” but Diaz kept running,

and eventually went through a gate and into a courtyard.

Bennallack was roughly five to ten feet behind Diaz during

the chase. Bennallack testified that at one point, Diaz

possibly could have exited through a gate to the street, but did

not.1 The officers took this as an escalation of danger, fearing

that Diaz was hoping to lure them into an enclosed space to

shoot them.

Diaz then slowed down. Witnesses disagreed about his

movements at this point. Bennallack said Diaz turned to his

left, while Heitmann said he turned to his right. One witness

did not see him turn or make any threatening movements,

while another saw Diaz turn in a non-threatening manner

when the police told him to get on the ground.

As Diaz started to turn, Bennallack claimed to see a black

cloth object going over a fence close to Diaz . Bennallack

said that he believed Diaz had a gun in a “low-ready” position

in front of his body, ready to fire. According to Bennallack,

as Diaz turned and Bennallack saw the object in the air, he

fired twice. When Bennallack shot Diaz, he could not see

1

Bennallack did not recall whether that gate was open, closed, or ajar.

6 ESTATE OF DIAZ V. CITY OF ANAHEIM

any part of his arms or hands. The shots occurred within one

to two seconds after Diaz started to slow down; Bennallack

made no lethal force warning. The first bullet entered Diaz’s

right buttock and was lodged in his left thigh. The second

bullet entered the right side of Diaz’s head, just above and

behind his right ear, and exited the left side of his head near

his left ear. Diaz was handcuffed and searched. He died

shortly thereafter at a nearby hospital. Officers found a black

cell phone and narcotics pipe nearby. No firearm was

recovered from the scene.

B. Pretrial Litigation

Diaz’s estate and his mother, Genevieve Huizar, brought

suit against the City of Anaheim and Officer Bennallack.2

Huizar sought only non-economic damages, i.e., her loss of

Diaz’s love, companionship, comfort, care, assistance,

protection, affection, society, and moral support.

A number of Plaintiffs’ claims were disposed of by

stipulation and the district court’s partial grant of Defendants’

motion for summary judgment. By trial, Plaintiffs’ remaining

claims included three claims under 42 U.S.C. § 1983

(excessive force and unreasonable detention under the Fourth

Amendment and unlawful interference with familial relations

2

Plaintiffs filed suit in California Superior Court, and Defendants

removed the action to the District Court for the Central District of

California.

ESTATE OF DIAZ V. CITY OF ANAHEIM 7

under the Fourteenth Amendment) and one claim for battery

under California state law.3

a. Motions In Limine

The parties filed a number of motions in limine, some of

which are relevant on appeal.

Gang Affiliation: The district court ruled that evidence

that Anna Drive was a known gang area was relevant to

liability, but that Diaz’s gang affiliation was relevant only to

damages—the theory being that his gang membership

undermined the strength of his mother’s love for him and

their relationship. The court excluded photographs of his

gang tattoos, but noted it would revisit this issue if Diaz’s

mother testified with respect to damages that she had no

knowledge of his gang affiliation.

Photographs: The court in principle agreed with

Defendants that photographic evidence from Diaz’s cell

phone and Facebook page that Diaz possessed a weapon prior

to the incident was relevant to the excessive force analysis

under Boyd v. City & County of San Francisco, 576 F.3d 938,

943–44 (9th Cir. 2009). However, the court indicated it

would likely exclude as irrelevant photos of gang activities

and stacks of money.

Drug Usage: The court ruled that because Defendants did

not offer evidence that Bennallack observed Diaz behaving

erratically during the incident, toxicology evidence of

3

During trial, Plaintiffs withdrew their Fourteenth Amendment claim.

The district court refused to submit the unreasonable detention claim to

the jury because it lacked sufficient evidence.

8 ESTATE OF DIAZ V. CITY OF ANAHEIM

methamphetamine use was not relevant to § 1983 liability.

Defendants also asserted that the toxicology evidence was

relevant to damages, but the court’s written order rejected this

theory.

Gang Expert: The court permitted Daniel Gonzalez, a

gang expert, to opine on Diaz’s gang membership, but only

as relevant to damages. The court noted that his gang

affiliation had limited relevance to the amount of damages,

and any testimony should be brief. The court also stated that

if the parties agreed to stipulate to Diaz’s gang membership,

it would reconsider its decision to allow Gonzalez to testify.

The court specifically excluded as unduly prejudicial

testimony about gang activities in general; that Anna Drive

was part of the gang’s turf (as Bennallack would testify to

this and it was undisputed); and any of Diaz’s specific gang

activities.

b. Motion To Bifurcate

Plaintiffs also moved to bifurcate the liability phase from

the damages phase of the trial, to avoid the risk that

prejudicial information unknown to Officer Bennallack at the

time of the shooting—such as Diaz’s gang membership,

related photos, and drug usage—would taint the jury’s

consideration of Bennallack’s use of deadly force. The

district court granted this motion in part, severing punitive

damages from liability and compensatory damages. The

district court briefly explained that neither prejudice nor the

complexity of the issues warranted bifurcating liability from

compensatory damages, and that limiting instructions would

cure any potential prejudice. The record is unclear as to why

the court bifurcated punitive damages but not compensatory

damages.

ESTATE OF DIAZ V. CITY OF ANAHEIM 9

c. Trial

After a six-day trial, the jury deliberated for less than two

hours before returning a verdict that Officer Bennallack did

not use excessive or unreasonable force.4 However, during

trial—and over Plaintiffs’ repeated objections—the district

court’s evidentiary rulings strayed from its pretrial rulings.

As a result, the jury was exposed to a copious amount of

inflammatory and prejudicial evidence with little (if any)

relevance.

i. Improper Evidence of Diaz’s Gang

Membership

The most troubling evidence admitted at trial related to

Diaz’s gang membership. There was wide-ranging testimony

from Defendants’ gang expert, Gonzalez. There were also

photographs featuring Diaz’s tattoos and him posing with

guns and throwing gang signs, none of which Bennallack

knew about or had seen when he shot Diaz.

In ruling on the motions in limine, the district court held

that evidence of Diaz’s gang affiliation was relevant only to

damages, because Officer Bennallack did not know he was a

gang member. The court also specifically excluded evidence

of Diaz’s gang tattoos themselves, such as photographs,

because such evidence was unnecessary to establish the fact

that he was a gang member. The court later recognized

generally that “[p]hotographs have the potential for both

relevant evidence and gratuitous provocation of the jury.”

4

The parties agreed that the jury finding regarding excessive force

would also be dispositive of the state battery claim.

10 ESTATE OF DIAZ V. CITY OF ANAHEIM

Further, before trial the court had warned that if Diaz’s

mother testified she had no knowledge of his gang affiliation,

the court would revisit its ruling on the admissibility of

evidence of Diaz’s tattoos. The court also noted that if

Plaintiffs stipulated that Diaz was a gang member, it would

reconsider its decision regarding the testimony of the gang

expert. At trial, Diaz’s mother was somewhat equivocal as to

whether she knew her son was a gang member.5 Though

Plaintiffs then offered to stipulate to his gang membership,

the district court ultimately permitted the gang expert to

testify, explaining that:

Given [Diaz’s mother’s] testimony, I think

[the defense is] entitled to put the gang expert

on. It has got to be narrow and it’s got to be

focused on his gang membership, not the

activities of the gang at large. I don’t think

the plaintiff at this time is entitled to basically

5

She testified as follows:

Q: Do you acknowledge that your son was a member

of the East Side Anaheim street gang?

A: I have come to find out more after his death. I

loved my son, and maybe I didn’t know a lot about

him during those times. It doesn’t mean I didn’t

love him any less.

Q: No one is disputing that, Ms. Huizar. Are you

indicating you did not know at that time that he

was a member of the East Side Anaheim street

gang?

A: I’m not sure how to answer because I never

thought of him as a gang member.

ESTATE OF DIAZ V. CITY OF ANAHEIM 11

rehabilitate the testimony and rewrite the

record.

The court then ruled that Defendants could offer photographs

of Diaz’s gang tattoos and him throwing gang signs, as well

as other information related to his gang moniker, clothing,

and association. When Plaintiffs’ counsel questioned the

court’s change of heart regarding the admission of the tattoo

photographs—which it had initially excluded—the court

remarked, “[w]ell, I think they’re entitled to put in probative

evidence. She hasn’t straight up admitted that he was a gang

member. I don’t think the tattoos are inflammatory. They are

what they are.” In contrast, the court excluded discussion of

specific gang activities, and any additional photographs of

Diaz with guns, as some already had been admitted as to

liability under a “gang gun” theory.6 But Defendants again

were permitted to present the previously admitted gun

photographs to the jury—in one, Diaz held a gun in his left

hand and made a gang sign with his right. In another, he

pointed a gun to his head.

6

Defendants’ explanation for why no firearm was found at the scene

was that Diaz was armed with a shared “gang gun” that a fellow gang

member retrieved and removed after the shooting. As such, the court

admitted photographs of Diaz posing with guns two days before the

shooting, ostensibly under the auspices of Boyd. See 576 F.3d at 944 (“In

a case such as this, where what the officer perceived just prior to the use

of force is in dispute, evidence that may support one version of events

over another is relevant and admissible.”). As Officer Bennallack never

saw a gun, we have reservations about the admissibility of this evidence

even as to liability. But we need not reach this question, as Plaintiffs have

not meaningfully raised the issue on appeal and we reverse on bifurcation

grounds.

12 ESTATE OF DIAZ V. CITY OF ANAHEIM

The testimony of gang expert Gonzalez was highly

prejudicial—so much so that the court gave the jury an early

limiting instruction soon after he testified. Before giving the

instruction, the district court stated in a sidebar that:

Unquestionably this gang evidence at least to

his gang membership is inflammatory, and

frankly the witness made it a point to expand

his answers on every question. Most answers

were beyond the scope of the question. Some

objections were made which I sustained; some

weren’t.

The district court rightly pointed out Gonzalez’s testimony

was both inflammatory and beyond the scope permitted by

the court—as were some of the questions defense counsel

posed.7

For example, when asked “Why do gang members pose

with guns?” Gonzalez responded: “It goes into their image,

their persona of being a gang member, showing other gang

members that they have firearms readily accessible, that they

have means to commit crimes against the general public,

against law enforcement, against rival gang members.”

(emphasis added). When asked “Why do gang members wear

baggy T-shirts?” he responded in part: “Another reason that

I have come to learn about is that it helps conceal items like

firearms, other deadly weapons. It’s easier to put a rifle or a

7

Several questions were so irrelevant to establishing gang membership

or the gang gun theory that the district court sustained Plaintiffs’

objections before Gonzalez could answer. For example, defense counsel

asked, “why do gang members post their photographs on Facebook?” and

“what’s the significance of gang members associating with one another?”

ESTATE OF DIAZ V. CITY OF ANAHEIM 13

sawed-off shotgun down your shorts or your pants when

you’ve got baggy pants on and a baggy shirt.” Gonzalez also

was permitted to testify to several things which the court

originally had excluded as unduly prejudicial under Rule 403

during the motions in limine, including that Anna Drive was

part of the gang’s turf and gang activities in general. He

further testified about Diaz’s gang moniker—“Stomper”—

and then repeatedly used the moniker to refer to Diaz. The

jury also learned that Gonzalez personally had arrested Diaz

on a prior occasion.

Some of Gonzalez’s testimony was formally “stricken”

from the record. The following pattern arose: after improper

testimony, Plaintiffs’ counsel would move to strike the

testimony and the district court would state “stricken” or “the

last part of the answer will be stricken.” During one stretch,

this pattern occurred on five different occasions in seven

minutes. Gonzalez was neither warned nor reprimanded, save

for the district court directing him at the very end of his

testimony to “[p]lease just answer the questions asked.”

In summary, Gonzalez’s testimony did not hew to the

district court’s direction to be “narrow” and “focused on his

gang membership, not the activities of the gang at large.”

Instead, Gonzalez took every opportunity to opine on matters

squarely forbidden by the court’s previous rulings. As a

result, the jury was exposed to inflammatory testimony that

was wholly irrelevant to liability, and of limited relevance

even as to damages.

ii. Improper Evidence of Diaz’s Drug Use

Further, despite its original hesitation, the district court

ultimately ruled that the toxicology evidence was relevant to

14 ESTATE OF DIAZ V. CITY OF ANAHEIM

damages,8 and Defendants proceeded to similarly stretch this

ruling. In contrast, the court found that the toxicology

evidence was not relevant to § 1983 liability, as Officer

Bennallack did not know or suspect that Diaz was under the

influence of drugs at the time of the incident.

But beyond any marginal relevance of Diaz’s drug use to

damages—again, because it supposedly undermined his

mother’s claim that she loved her son—the evidence at trial

fixated on his drug use on the day of the incident and how it

may have affected his behavior, which had no relevance to

his mother’s loss. Indeed, the singular focus of the drug-use

testimony was Diaz’s toxicological status on the day he was

shot, a risk which the district court recognized when it first

ruled on the issue pretrial. At the time, the court “reject[ed]

the contention that drug intoxication on the date of the

incident goes to damages. At most, it establishes his

condition on just one day. Any further inference would be

unsupported and unduly prejudicial.”

To this end, Defendants’ toxicology expert, Dr. Clark,

discussed the high levels of methamphetamine in Diaz’s

blood when he died, and opined that he was intoxicated when

he was shot:

Those levels—actually there are some people

who die with levels that high, but not in this

8

The timing and rationale underlying the court’s final ruling is not

evident from the record on appeal. Defendants had argued that Diaz’s

drug use was relevant to Ms. Huizar’s claim for the loss of her relationship

with her son, particularly in light of her testimony that Diaz was often not

permitted to live with her and her husband in part because he did not

follow their rule banning drug use.

ESTATE OF DIAZ V. CITY OF ANAHEIM 15

case. And those levels are actually quite high

as far as what we would think of as

recreational use of methamphetamine. But

those levels are high enough since we aren’t

certain of his tolerance to the drug that we can

say he was without a doubt under the

influence at the time of his death[.]

Dr. Clark also described the behavioral effects of

methamphetamine use and how it may have affected Diaz’s

behavior on July 21:

We know methamphetamines can be

dangerous, and we know it affects people

different ways. It can cause euphoria. It can

cause hallucinations. It can cause people to

become paranoid, can cause them to become

violent; and it can cause them to use poor

judgment. That’s pretty much common

knowledge.

From my review of the facts in this case, it’s

possible that methamphetamine at the levels

of which were measured at autopsy could

have caused Mr. Diaz to use poor judgment in

what ended up happening in this case.

While the court granted Plaintiffs’ motion to strike the second

part of the response as lacking medical probability, the jury

already had been exposed to this testimony. This was also the

second time a defense expert improperly speculated as to how

drug use may have affected Diaz’s judgment the day of the

shooting. Even after his earlier testimony was “stricken,” Dr.

Clark continued to focus on the day of the incident. He

16 ESTATE OF DIAZ V. CITY OF ANAHEIM

testified that Diaz had likely ingested methamphetamine

within six hours of the shooting, and concluded “to a

reasonable medical probability” that “[Diaz] was under the

influence of methamphetamine at the time [of the shooting].”

II. DISCUSSION

A. The Trial Court Erred in Failing To Bifurcate

Liability from Compensatory Damages

Judges have wide latitude in conducting their trials, and

for good reason. See, e.g., Zivkovic v. S. Cal. Edison Co.,

302 F.3d 1080, 1088 (9th Cir. 2002). This is why the rules

permit bifurcation, and why we usually affirm a trial judge’s

decision—to either bifurcate or keep things together—as

within her discretion. But this discretion is not limitless.

a. Standard of Review

We review for abuse of discretion the district court’s

rulings on whether to bifurcate a trial. Exxon Co. v. Sofec,

Inc., 54 F.3d 570, 575 (9th Cir. 1995). Under this standard,

we reverse only when we are “convinced firmly that the

reviewed decision lies beyond the pale of reasonable

justification under the circumstances.” Harman v. Apfel,

211 F.3d 1172, 1175 (9th Cir. 2000).

Federal Rule of Civil Procedure 42(b) permits a court to

order a separate trial of separate claims or issues “[f]or

convenience, to avoid prejudice, or to expedite and

economize.” A court might bifurcate a trial to “avoid[] a

difficult question by first dealing with an easier, dispositive

issue,” Danjaq LLC v. Sony Corp., 263 F.3d 942, 961 (9th

Cir. 2001), or to avoid the risk of prejudice. See Quintanilla

ESTATE OF DIAZ V. CITY OF ANAHEIM 17

v. City of Downey, 84 F.3d 353, 356 (9th Cir. 1996)

(explaining that, in a § 1983 case challenging the use of a

police dog during a search, the trial court bifurcated the trial

of the individual officers from that of the city in part to avoid

prejudice). Further, “[i]t is clear that Rule 42(b) gives courts

the authority to separate trials into liability and damage

phases.” De Anda v. City of Long Beach, 7 F.3d 1418, 1421

(9th Cir. 1993); see also 9A Charles A. Wright & Arthur R.

Miller, Federal Practice & Procedure § 2390 (3d ed. 2016)

(“The separation of issues of liability from those relating to

damages is an obvious use for Federal Rule 42(b).”).

b. Discussion

Here, under the guise of impeaching Huizar’s testimony

that she loved her son, Defendants introduced (over repeated

objection) photographs of Diaz posing with firearms and

making gang signs. Then Gonzalez expounded on the

activities and customs of violent gangs and described Diaz’s

moniker of “Stomper,” his criminal history, and his tattoos in

great detail. Dr. Clark speculated as to how the enormously

high level of methamphetamine in Diaz’s system at the time

of the shooting may have affected his response to the police.

It is hard to see how most of this testimony was relevant even

to damages, absent testimony—of which there was none—

that Ms. Huizar knew of the photographs, gang signs, and

drug use on the day of the offense, and that that knowledge

undermined the emotional impact of her son’s death. And

there was also highly prejudicial testimony that was under

any circumstances not relevant to liability or damages. For

example, Gonzalez stated that gang members require access

to firearms to “use them in self-defense . . . against police

18 ESTATE OF DIAZ V. CITY OF ANAHEIM

officers” and pose with firearms publicly to show “that they

have means to commit crimes . . . against law enforcement.”9

This was simply overkill. Considering that the parties and

district court had repeated trouble tracking precisely why this

prejudicial evidence was admissible for any purpose, no jury

could properly compartmentalize it. For example, on the

fourth day of trial, the court and parties were still not clear

about whether the fact that Diaz was under the influence of

drugs was relevant to liability under a comparative fault

defense, even after Plaintiffs had dropped their negligence

claim.10 Even assuming that a portion of this evidence had

some relevance to damages, it never should have been

combined with the liability phase.

Indeed, this court has recognized time and time again that

gang evidence has the potential to be particularly prejudicial.

See, e.g., Kennedy v. Lockyer, 379 F.3d 1041, 1055 (9th Cir.

2004) (“Our cases make it clear that evidence relating to gang

involvement will almost always be prejudicial[.]”); United

States v. Takahashi, 205 F.3d 1161, 1165 (9th Cir. 2000)

(holding the district court did not abuse its discretion in

admitting evidence of gang membership where the court

9

This testimony was ostensibly “stricken” from the record as described

above.

10

Prior to Dr. Clark’s testimony—and outside the presence of the jury—

Plaintiffs’ counsel inquired as to the relevance of his testimony, in light of

the fact that they had dropped the negligence claim. Defendants argued

that the toxicology evidence went not only to damages but also to liability

(as relevant to a comparative fault defense), and the court remarked that

“[w]e need to sort that issue out.” No further discussion occurred before

Dr. Clark testified, though the court ultimately gave a limiting instruction

that Diaz’s drug use was relevant only to damages.

ESTATE OF DIAZ V. CITY OF ANAHEIM 19

“recognized the need to prevent undue prejudice,” gave a

limiting instruction, excluded photographs of gang tattoos as

evidence of membership, and minimized repetition of the

gang’s name).

Similarly, even if evidence of Diaz’s drug use were

relevant to damages, the form and nature of the evidence

presented regarding his drug use on the day of the incident

was unduly prejudicial in light of the decision not to

bifurcate. It would have been far more relevant to damages

for an expert to testify simply to the presence of drugs in

Diaz’s body and to the effects of drug use on relationships.

The focus on the day of the incident was minimally probative

of damages, and was highly likely to influence improperly the

jury’s evaluation of Officer Bennallack’s use of force, when

he never suggested he thought Diaz may have been

intoxicated.

Further, the district court already had bifurcated punitive

damages. Bifurcating from the liability phase the testimony

actually relevant to compensatory damages would have cost

little, if any, court time—none, if the jury had returned a

defense verdict.

Because the district court abused its discretion in refusing

to bifurcate the compensatory damages phase (thereby

allowing in this unduly prejudicial evidence of drugs and

gangs), we reverse. Under these circumstances, the court’s

bifurcation ruling was “beyond the pale of reasonable

justification under the circumstances.” Apfel, 211 F.3d at

1175. To be clear, we are not announcing a rule that requires

district courts always, usually, or frequently to bifurcate

damages from liability. District courts still have the broad

discretion to make these decisions. But where, as here,

20 ESTATE OF DIAZ V. CITY OF ANAHEIM

graphic and prejudicial evidence about the victim has little,

and in large part no, relevance to the liability issue, district

courts should bifurcate to avoid situations like the one before

us.11

In light of our decision to reverse the judgment and

remand for a new trial, we also provide some guidance to the

district court.

First, the evidence of Diaz’s drug use and gang affiliation

has marginal, if any, probative value as to damages, and none

as to liability. On retrial, the district court should closely

review this evidence under Federal Rules of Evidence 401

and 403, and should assure that such evidence is admitted

only to the degree that the testimony is connected up with Ms.

Huizar’s reaction to her son’s death.

Second, if Plaintiffs are willing to stipulate that Diaz was

a gang member (which they claim they tried to do during

trial), no expert testimony about gangs—such as gang

activities, tattoos, or monikers—should be admitted.

Bennallack can certainly testify as to his knowledge about

11

In light of our ruling, we do not reach the issue of whether Plaintiffs’

failure to make a Rule 50(a) motion as to the unlawful detention claim

barred review of the district court’s dismissal of that claim sua sponte

before the close of evidence. We do observe, however, that requiring a

litigant to make a Rule 50(a) motion for judgment as a matter of law on a

claim no longer before the jury appears, at first blush, futile. See

Velazquez v. City of Long Beach, 793 F.3d 1010, 1018 (9th Cir. 2015) (“A

motion for judgment as a matter of law may be granted if ‘the court finds

that a reasonable jury would not have a legally sufficient evidentiary basis

to find for the party on that issue[.]’” (quoting Fed. R. Civ. P. 50(a))). We

also do not reach whether Plaintiffs are entitled to a new trial under Rule

59(a) based on the district court’s evidentiary rulings or formulation of

jury instructions.

ESTATE OF DIAZ V. CITY OF ANAHEIM 21

gang activity in the area. See Graham v. Connor, 490 U.S.

386, 397 (1989) (holding that to determine whether police

force is excessive, the proper inquiry is “whether the officers’

actions are ‘objectively reasonable’ in light of the facts and

circumstances confronting them”).

Third, while there is a “strong presumption that jurors

follow instructions,” a limiting instruction may not

sufficiently mitigate the prejudicial impact of evidence in all

cases. See Miller v. City of Los Angeles, 661 F.3d 1024, 1030

(9th Cir. 2011); Bayramoglu v. Estelle, 806 F.2d 880, 888

(9th Cir. 1986) (“A timely instruction from the judge usually

cures the prejudicial impact of evidence unless it is highly

prejudicial or the instruction is clearly inadequate.” (quoting

United States v. Berry, 627 F.2d 193, 198 (9th Cir. 1980))).

The Advisory Committee Note to Federal Rule of Evidence

403 also recognizes the potential inadequacies of a limiting

instruction, counseling that “[i]n reaching a decision whether

to exclude on grounds of unfair prejudice, consideration

should be given to the probable effectiveness or lack of

effectiveness of a limiting instruction.” And if a limiting

instruction was considered sufficient to cure all prejudice,

there would be no need ever to bifurcate to avoid prejudice in

other cases; yet in the civil rights context, courts often

bifurcate the trials of individual officers from municipalities

to avoid such prejudice. See, e.g., Quintanilla, 84 F.3d at 356

(“The district court . . . in the interest not only of convenience

and judicial economy but also the avoidance of potential

prejudice and confusion, bifurcated the trial of the individual

police officers from the Chief and city.”); Green v. Baca,

226 F.R.D. 624, 633 (C.D. Cal. 2005) (“Bifurcation is

appropriate . . . to protect the individual officer defendants

from the prejudice that might result if a jury heard

22 ESTATE OF DIAZ V. CITY OF ANAHEIM

evidence regarding the municipal defendant’s allegedly

unconstitutional policies.”).

And fourth, if the district court is going to sustain an

objection and grant a motion to strike, merely saying

“stricken” does not sufficiently inform the jury about the

proper use of the evidence it just heard. When striking

testimony, the court should clearly identify what testimony

was improperly given, and should instruct the jury that it may

not be considered. It should also use a sidebar or brief recess

to warn the witnesses and attorneys that further attempts to

push the envelope could lead to greater sanctions, such as

exclusion of testimony or a negative instruction.12 After all,

lawyers and witnesses, like misbehaving children or rattled

basketball players, sometimes need a timeout.13

B. The Trial Court Did Not Err in Ruling Force

Was Not Excessive as a Matter of Law

Plaintiffs also appeal the district court’s denial of their

motion for judgment as a matter of law on their excessive

12

See, e.g., Barnett v. Norman, 782 F.3d 417, 422–23 (9th Cir. 2015)

(outlining powers of district judge to ensure witness complies with court

order); United States v. Panza, 612 F.2d 432, 439 (9th Cir. 1979) (“We

can only speculate as to the effect on the jury of the striking of the

testimony.” (citing United States v. Cardillo, 316 F.2d 606, 612 n.3 (2d

Cir. 1963)); Cardillo, 316 F.2d at 612 n.3 (“The effectiveness of such

procedures after the testimony has been heard by the jury has been the

subject of speculation, metaphysical and otherwise, by jurists and trial

lawyers for generations.”).

13

Cf. United States v. McKoy, 771 F.2d 1207, 1213 (9th Cir. 1985) (“We

have often noted that the trial court may be able to ‘neutralize’ the effect

of improper prosecutorial remarks by admonishing counsel to refrain from

such remarks or by giving appropriate curative instructions to the jury.”).

ESTATE OF DIAZ V. CITY OF ANAHEIM 23

force claim. Because the district court correctly ruled that

this question was one for the jury, we affirm its denial of

Plaintiffs’ motion.

a. Standard Of Review

“We review de novo the district court’s denial of a Rule

50(b) renewed motion for judgment as a matter of law. The

test is whether ‘the evidence, construed in the light most

favorable to the nonmoving party, permits only one

reasonable conclusion, and that conclusion is contrary to that

of the jury.’” White v. Ford Motor Co., 312 F.3d 998, 1010

(9th Cir. 2002), amended on denial of reh’g, 335 F.3d 833

(9th Cir. 2003) (footnote omitted) (quoting Forrett v.

Richardson, 112 F.3d 416, 419 (9th Cir. 1997)). We “may

not make credibility determinations or weigh the evidence.”

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,

150 (2000).

Where an “excessive force claim arises in the context of

an arrest or investigatory stop of a free citizen, it is most

properly characterized as one invoking the protections of the

Fourth Amendment.” Graham, 490 U.S. at 394. As with

other Fourth Amendment claims, we inquire “whether the

officers’ actions are ‘objectively reasonable’ in light of the

facts and circumstances confronting them, without regard to

their underlying intent or motivation.” Id. at 397.

We determine whether challenged state actions are

objectively reasonable by balancing “‘the nature and quality

of the intrusion on the individual’s Fourth Amendment

interests’ against the countervailing governmental interests at

stake.” Id. at 396 (quoting Tennessee v. Garner, 471 U.S. 1,

8 (1985)). This demands a “fact-intensive inquiry requiring

24 ESTATE OF DIAZ V. CITY OF ANAHEIM

attention to all circumstances pertinent to the need for the

force used.” Velazquez, 793 F.3d at 1024. We “first

consider[] the nature and quality of the alleged intrusion; we

then consider the governmental interests at stake by looking

at (1) how severe the crime at issue is, (2) whether the suspect

posed an immediate threat to the safety of the officers or

others, and (3) whether the suspect was actively resisting

arrest or attempting to evade arrest by flight.” Mattos v.

Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (en banc) (citing

Deorle v. Rutherford, 272 F.3d 1272, 1279–80 (9th Cir.

2001)). These factors are not exclusive. Id.

b. Discussion

Here, while Plaintiffs presented substantial evidence that

the force was unreasonable, Defendants also presented

substantial evidence to support their position. When each of

the Graham factors is analyzed, the record does not “permit[]

only one reasonable conclusion . . . contrary to that of the

jury.” White, 312 F.3d at 1010 (citation omitted).

i. Severity of the Crime or Other

Circumstances to Which the Officers

Were Responding

It is undisputed that the only crime Diaz had committed,

if any, was a misdemeanor, and that Officer Bennallack had

no information that a crime was reported in the area.

However, Bennallack was aware of an ongoing criminal

investigation in the area involving the sale and possession of

firearms by the East Side Anaheim Gang, and believed Diaz

to be a gang member.

ESTATE OF DIAZ V. CITY OF ANAHEIM 25

ii. Immediate Threat To Officer Safety

While Officer Bennallack testified that he never saw

Diaz’s hands, or a weapon on his person, certain indicia could

have led a reasonable officer to believe Diaz was armed. For

example, Bennallack observed that rather than pumping his

arms as he ran, Diaz was “reaching towards his waistband”

and appeared to be manipulating an object with his hands.

Bennallack also testified that Diaz looked back at the officers

multiple times, as if to acquire a target. Finally, instead of

running through a gate that led to the street, Diaz led the

officers into a fenced-in area, and Bennallack observed Diaz

begin to slow down, assume a “low-ready” position, and turn

towards him.

On the other hand, in addition to the fact that Bennallack

never saw Diaz’s hands or a weapon on his person, other

evidence weighs against an immediate threat to officer safety.

For example, Diaz was shot in the back, which could refute

Bennallack’s testimony that he was turning. While the jury

was entitled to weigh this evidence and Bennallack’s

credibility against other evidence and the credibility of

witnesses who offered alternative versions of events, we must

view the evidence in the light most favorable to Defendants.

Certainly “a simple statement by an officer that he fears

for his safety or the safety of others is not enough.” Deorle,

272 F.3d at 1281. Nevertheless, Defendants presented facts

demonstrating why such fear could have been reasonable

here, including observations of Diaz’s movements, flight

route, the presence of gang activity in the area, and his refusal

to comply with the officers’ orders. Cf. id. (explaining that

the officer using force knew the plaintiff “had discarded his

crossbow following [the officer’s] instructions to do so, and

26 ESTATE OF DIAZ V. CITY OF ANAHEIM

carried only a bottle or a can with him at the time he was

shot”). Even if Bennallack’s subjective fear is discounted,

much of his testimony focused on observations during the

encounter and how he interpreted the situation based on his

training, which the jury could reasonably credit.

iii. Attempting To Evade Arrest by Flight

It is undisputed that Diaz was running from the officers

and did not obey their commands to stop, put his hands up, or

get on the ground. That Diaz was slowing down at the time

of the shooting does not compel the conclusion that he was

complying with the officers’ orders, nor does it prove that he

was preparing to shoot the officers. These are both

reasonable interpretations of the evidence. The jury was

entitled to choose between them based on their weighing of

the evidence and the witnesses’ credibility.

In sum, taking the evidence in the light most favorable to

Defendants, these facts do not warrant judgment for Plaintiffs

as a matter of law.

III. CONCLUSION

Police shootings are often the most difficult—and

divisive—cases that our legal system and society encounter.

Wrapped in strong emotion and often opaque case law, they

can perplex even our most experienced trial judges, like the

judge in this case. To avoid the runaway case—like this one,

where the Defendants and their witnesses repeatedly

overstepped the judge’s rulings—courts should use

bifurcation to corral lawyers and witnesses, so the jury hears

only evidence relevant to the issues at hand. Here, that was

whether Officer Bennallack acted lawfully when he shot

ESTATE OF DIAZ V. CITY OF ANAHEIM 27

Diaz. Because the jury heard considerable and inflammatory

evidence that had nothing to do with that question, we

REVERSE and REMAND this case for a new trial.