Martin v. City of San Jose

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

ANDY MARTIN, Case No. 19-cv-01227-EMC Plaintiff,

ORDER RE AMENDED EXHIBIT v. LISTS

CITY OF SAN JOSE, et al., Docket Nos. 87, 89 Defendants.

Below are the Court’s rulings on the parties’ exhibits.

IT IS SO ORDERED.

Dated: May 6, 2021 ______________________________________ EDWARD M. CHEN

United States District Judge

EX. DOCUMENT RULING

1 Photographs of P’s injuries Rule 403 objection overruled.

2 Excerpt from Duty Manual (Use of Relevance objection overruled. Ruling on the Police Vehicle) remaining objections (hearsay and foundation) deferred. Regarding hearsay, the Duty Manual may be admissible as long as the necessary predicate is laid. See, e.g., Fed. R. Evid. 801(d)(2) (statement of party-opponent); Fed. R. Evid. 803(6) (business record); 803(8) (public record). The Duty Manual is also at issue in Exs. 3-4.

3 Excerpt from Duty Manual Relevance objection overruled. Ruling on (Traffic Accidents) remaining objections (hearsay and foundation) deferred. See Ex. 2.

4 Excerpt from Duty Manual (use of Relevance objection deferred. As a facial force) matter, the only policies that seem to be relevant are those on the use of the police vehicle (which is duplicative of Ex. 2 above), the reporting of force, and the review of the use of force. Ruling on remaining objections (hearsay and foundation) also deferred. See Ex. 2.

5 Excerpt from Cal. Comm’n on Relevance objection overruled. Ruling on Peace Officer Standards and remaining objections (hearsay and foundation) Training (POST), Basic Workbook deferred. See Ex. 2.

Series, Student Materials,

EX. DOCUMENT RULING

Operations (e.g., defensive driving, factors affecting vehicle operations, emergency driving, operating emergency response vehicles, vehicle pursuits, vehicle dynamics, vehicle control techniques)

6 Scene photographs Rule 403 objection overruled.

7 Video of operation of police Relevance and hearsay objections overruled. vehicle (not on the day of the Ruling on the remaining objection (foundation) incident) deferred. Statements on the video are not describing or explaining an event or condition, and are not made to prove the truth of their content. Instead, the statements on the video are largely directions given to the person operating the vehicle to provide context. 8 Video from Officer Gutierrez’s Ruling deferred. The Court cannot assess the body-worn camera relevance, Rule 403, hearsay, and foundation objections because Plaintiff has not designated what portions of the 28-minute video he seeks to admit into evidence. The video itself is not hearsay but statements made on the video may or may not be hearsay – e.g., certain statements on the video may be subject to exceptions such as present sense impression. See United States v. Alexander, 331 F.3d 116, 123 (D.C. Cir. EX. DOCUMENT RULING held that, if video includes an officer (not Officer Ribeiro) falsely telling the cousin that Mr. Martin admitted he had a weapon or that a weapon had been found, that evidence is not permitted unless the door is opened (e.g., for impeachment). See PTC Order at 20 (addressing D’s MIL No. 6).

9 Excerpts from report authored by Plaintiff has stated (in response to Defendants’ IA Investigator, Officer Peroutka MIL No. 5) that he does not intend to offer the conclusions of the report into evidence. Relevance objection overruled. Remaining objections (Rule 403, hearsay, and foundation) deferred. Regarding hearsay, the report itself may qualify as a public record under Rule 803(8); alternatively, the report may be a statement of party-opponent (as to the City at least). However, the report may or may not contain hearsay. To the extent the report contains statements from Officer Ribeiro, those would be statements of a party-opponent under Rule 801(d)(2) as to Officer Ribeiro and may be statements of a party-opponent as to the City. See PTC Order at 18-20 (addressing D’s MIL No. 5). See, e.g., Freitag v. Ayers, 468 F.3d 26 523, 541 & n.5 (9th Cir. 2006) (in hostile work environment case, holding that district court did EX. DOCUMENT RULING enumerated the agency's findings that, among other things, the administrative staff at Pelican Bay had not responded appropriately to the concerns expressed by female officers about exhibitionist masturbation, and the institution had not taken adequate steps to correct the problem”); Jessup v. Miami-Dade Cty., 697 F. 9 Supp. 2d 1312, 1322 (S.D. Fla. 2010) (stating that, “while ‘factual findings’ in internal affairs reports are generally admissible under an exception to the hearsay rule, Fed. R. Evid. 803(8), summaries of interviews that are contained in those reports are also double hearsay that cannot be admitted at trial or considered on summary judgment”); Murphy v. Metro. Transp. Auth., 548 F. Supp. 2d 29, 43 (S.D.N.Y. 2008) (stating that “internal police investigations – when they are relevant – are presumed admissible in a civil case as public record exceptions to the hearsay rule”). 10 Computer-aided dispatch Relevance objection overruled. The phone number of the third party should be redacted. 11 Video from Officer Serrano’s Ruling deferred. The Court cannot assess the body-worn camera relevance, Rule 403, and hearsay objections because Plaintiff has not designated what portions of the 8-minute video he seeks to EX. DOCUMENT RULING hearsay but statements made on the video may or may not be hearsay. See Ex. 8.

12 Santa Clara Valley medical Ruling deferred. The Court cannot assess the records relevance, Rule 403, and hearsay objections because Plaintiff has not designated what portions of the 400+ pages of records he seeks to admit into evidence. Regarding hearsay, the medical records may be admissible as business records; however, the records may or may not contain hearsay. Statements of Mr. Martin are not admissible under Rule 801(d)(2) because they are his own statements and not those of a party-opponent. Absent narrowing of what Mr. Martin seeks to admit, Court cannot determine which, if any, exceptions might apply.

13 Santa Clara Regional medical Ruling deferred. The Court cannot assess the records relevance, Rule 403, and hearsay objections because Plaintiff has not designated what portions of the almost 500 pages of records he seeks to admit into evidence. Regarding hearsay, the medical records may be admissible as business records; however, the records may or may not contain hearsay. Statements of Mr. Martin are not admissible under Rule 801(d)(2) because they are his own statements and not those of a party-opponent. See Ex. 12. EX. DOCUMENT RULING organs, including the pelvic area objection if the exhibit were to be used as a (exhibit used in Dr. Yun demonstrative only; Plaintiff has confirmed that deposition) the exhibit is to be used as a demonstrative only.

15 Expert report of Dr. Smith Hearsay objection sustained. However, (biomechanical engineer opining Plaintiff may use the report to refresh on injury causation) recollection.

16 Exhibits from Dr. Smith’s expert Ruling on relevance, Rule 403, and hearsay report (syncing of video from objections deferred. Regarding hearsay, the Officer Ribeiro and Officer videos are not hearsay but statements on the Purnell’s body-worn cameras) videos may or may not be hearsay and may be subject to hearsay exceptions.

17 Expert report of Dr. Smith Hearsay objection sustained. However, (rebuttal) Plaintiff may use the report to refresh recollection.

18 Exhibits from Dr. Smith’s expert Hearsay objection as to Exhibits 3 and 4 report (rebuttal) sustained. Exhibits 3 and 4 are essentially continuations of the expert report. Ruling deferred as to the Otte article (“Use of Throw Distances of Pedestrians and Bicyclists as Part of a Scientific Accident Reconstruction Method”). Defendants have objected on the basis of relevance, Rule 403, and hearsay. Regarding hearsay, the article may be admissible under Rule 803(18) (learned treatise). But if the article is hearsay, then Rule EX. DOCUMENT RULING in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.”).

19 Still frame (left-side mirror) from Defendants: No objection if Flower exhibits Officer Ribeiro’s body-worn based on body-worn camera are admitted. Exs. camera (exhibit used in Dr. Smith 529-44. Plaintiffs did not object. deposition)

20 Expert report of Mr. Bard (video) Hearsay objection sustained. However, Plaintiff may use the report to refresh recollection.

21 Exhibit from Mr. Bard’s expert Defendants: No objection if Flower exhibits report (slowed video from Officer based on body-worn camera are admitted. Exs. Purnell’s body-worn camera) 529-44. Plaintiffs did not object. 22 Exhibit from Mr. Bard’s expert Defendants: No objection if Flower exhibits report (slowed video from Officer based on body-worn camera are admitted. Exs. Ribeiro’s body-worn camera) 529-44. Plaintiffs did not object. 23 Exhibit from Mr. Bard’s expert Defendants: No objection if Flower exhibits report (synchronized video from based on body-worn camera are admitted. Exs. EX. DOCUMENT RULING

24 Exhibit from Mr. Bard’s expert Defendants: No objection if Flower exhibits report (still frames from Officer based on body-worn camera are admitted. Exs. Ribeiro’s body-worn camera) 529-44. Plaintiffs did not object.

25 Exhibit from Mr. Bard’s expert Defendants: No objection if Flower exhibits report (still frames from Officer based on body-worn camera are admitted. Exs. Purnell’s body-worn camera) 529-44. Plaintiffs did not object.

26 Expert report from Mr. Flower Hearsay objection sustained. However, (City’s video expert) Plaintiff may use the report to refresh recollection or to impeach.

27 Expert repot from Mr. Johnson Hearsay objection sustained. However, (damages) Plaintiff may use the report to refresh recollection.

28 Traffic Collision Report (authored Hearsay objection deferred. Report may be in part by Officer Minten and in admissible under Rule 803(6) or (8); part by Officer Ribeiro) alternatively, report may be admissible as a statement of a party-opponent (as to the City at least). However, statements in the report may or may not be hearsay. Statements made by Officer Ribeiro are not hearsay as to Officer Ribeiro because they are statements by a party- opponent; they may be statements by a party- opponent as to the City. Statements made by Mr. Martin are hearsay if offered by Mr. Martin. Document may be used to refresh recollection or impeach.

29 Excerpts from report authored by Plaintiff has stated (in response to Defendants’ EX. DOCUMENT RULING (partially duplicative of Ex. 9) conclusions of the report into evidence. Relevance objection overruled. Remaining objections (Rule 403 and hearsay) deferred. Regarding hearsay, the report itself qualifies as a public record under Rule 803(8) or is a statement of a party-opponent (as to the City at least) once foundation is laid. However, the report may or may not contain hearsay statements. To the extent the report contains statements from Officer Ribeiro, those would be statements of a party-opponent under Rule 801(d)(2) as to Officer Ribeiro; they may be statements of a party-opponent as to the City. Statements made by Mr. Martin are hearsay if offered by Plaintiff. Document may be used to refresh recollection or impeach.

30 Memos by Sgt. Sciba and Lt. Plaintiff has stated (in response to Defendants’ Lagorio (internal investigation) MIL No. 5) that he does not intend to offer the conclusions of the memos into evidence. Relevance objection overruled. Remaining objections (Rule 403, hearsay, and foundation) deferred. Regarding hearsay, the memos qualify as public records under Rule 803(8) or are statements of a party-opponent (as to the City at least) if proper foundation is laid. However, the memos may or may not contain EX. DOCUMENT RULING contain statements from Officer Ribeiro, those would be statements of a party-opponent under Rule 801(d)(2) as to Officer Ribeiro; they may be statements of a party-opponent as to the City. Statements made by Mr. Martin are hearsay if offered by Martin. Document may be used to refresh recollection or impeach. 31 Memo by Lt. Lagorio (internal Plaintiff has stated (in response to Defendants’ investigation) MIL No. 5) that he does not intend to offer the conclusions of the memos into evidence. Relevance objection overruled. Remaining objections (Rule 403, hearsay, and foundation) deferred. Regarding hearsay, the memo qualifies as a public record under Rule 803(8) or is a statement of a party-opponent (as to the City at least) if proper foundation is laid. However, the memo may or may not contain hearsay statements. To the extent the memo contains statements from Officer Ribeiro, those would be statements of a party-opponent under Rule 801(d)(2) as to Officer Ribeiro; they may be statements of a party-opponent as to the City. Document may be used to refresh recollection or impeach.

32 Incident report by Officer Relevant objection overruled. Remaining Gutierrez objections (Rule 403 and hearsay) deferred. EX. DOCUMENT RULING public record under Rule 803(8) or is a statement of a party-opponent (as to the City at least if proper foundation is laid. However, the report may or may not contain hearsay statements. In any event, document may be used to refresh recollection or impeach. 33 Incident report by Officer Purnell Hearsay objection deferred. Regarding hearsay, the report qualifies as a public record under Rule 803(8) or is a statement of a party- opponent (as to the City at least) if proper foundation is laid. Document may be used to refresh recollection or impeach.

34 Incident report by Sgt. Sciba Hearsay objection deferred. Regarding hearsay, the report qualifies as a public record under Rule 803(8) or is a statement of a party- opponent (as to the City at least) if a proper foundation is laid. However, the report may or may not contain hearsay statements.

Statements made by Mr. Martin are hearsay if offered by Mr. Martin. Document may be used to refresh recollection or impeach.

35 Incident report by Officer Ribeiro Hearsay objection overruled as to Officer Ribeiro (statement of party-opponent). Hearsay objection deferred as to the City. With respect to the City, the report qualifies as a public record under Rule 803(8) or is a statement of a EX. DOCUMENT RULING

Document may be used to refresh recollection or impeach.

500 Computer-aided dispatch Essentially the same as Pl.’s Ex. 10. Relevance and Rule 403 objections overruled.

501 Dispatch recording (first 6 minutes No objection. only)

502 Certified transcript of dispatch Rule 403 and hearsay objections overruled. recording (first 6 minutes only) Regarding hearsay, document is not offered for truth of the matter asserted but rather for effect on listener (Officer Ribeiro).

503 Video from body-worn camera of No objection.

Officer Ribeiro

504 Video from body-worn camera of No objection.

Officer Purnell

505 Scene photograph No objection.

506 Scene photograph No objection.

507 Scene photograph No objection.

508 Scene photograph No objection.

509 Scene photograph No objection.

510 Scene photograph No objection.

511 Scene photograph No objection.

512 Scene photograph No objection.

513 Scene photograph No objection.

514 Scene photograph No objection.

517 Santa Clara County Crime Relevance and Rule 403 objections overruled. EX. DOCUMENT RULING

Laboratory toxicology report Ruling on hearsay objection deferred. Document may be admissible as business record if proper foundation is laid.

528 Lyft records Relevance and Rule 403 objections overruled. Ruling on hearsay objection deferred.

Document may be admissible as evidence of absence of business record. See Rule 803(7). 529 Still image from body-worn No objection. camera

530 Still image from body-worn No objection. camera

531 Still image from body-worn No objection. camera

532 Still image from body-worn No objection. camera

533 Still image from body-worn No objection. camera

534 Still image from body-worn No objection. camera

535 Still image from body-worn No objection. camera

536 Still image from body-worn No objection. camera

537 Slowed-down video from body- No objection. worn camera of Officer Ribeiro

538 Video from body-worn camera of No objection.

EX. DOCUMENT RULING

Officer Ribeiro

539 Slowed-down video from body- No objection. worn camera of Officer Purnell

540 Video from body-worn camera of No objection.

Officer Purnell

541 Slowed-down video from body- No objection. worn camera of Officer Ribeiro

542 Synced video from body-worn No objection. cameras

543 Synced video from body-worn No objection. cameras

544 Slowed-down video from body- No objection. worn camera of Officer Ribeiro

545 San Jose Regional Medical Center No objection.

Diagnostic Imaging (CD) (pelvis and ankle)

546 Valley Medical Center Diagnostic No objection.

Imaging (CD) (ankle and chest)

547 Valley Medical Center Diagnostic No objection.

Imaging (CD) (ankle and knee)

548 Valley Medical Center Diagnostic No objection.

Imaging (CD) (hand, wrist, pelvis)

549 Excerpts from Santa Clara Valley No objection.

Health & Hospital System

550 Plaintiff’s responses to Rogs Nos. Rog No. 10 asks how many times Plaintiff and 11 contends Officer Ribeiro ran over him; Rog No. EX. DOCUMENT RULING

11 asks Plaintiff to identify facts to support the contention that the officer ran him over more than one time. Objections to rogs (vague and ambiguous) overruled.

551 Plaintiff’s responses to Rogs Nos. Rog No. 9 asks Plaintiff to state facts to support and 12 responses to RFAs. Plaintiff stated, inter alia, that he had already left the mall and was walking when officers responded and that he told officers he could not see behind him and did not know who was following him. Rog No. asks Plaintiff to identify dates of incarceration in the past 10 years. Objection to Rog No. 9 (vague and ambiguous) overruled. Objection to Rog No. 12 has been resolved by Court’s ruling on Plaintiff’s MIL No. 1. 552 Plaintiff’s responses to RFAs Nos. RFAs ask Plaintiff to admit that he was running 3, 4, and 7-10 on the trail to evade the police, that he knew he was being pursued by the police, and that he had been previously been convicted of certain crimes. Objection to RFAs re evading or being pursued by the police (vague and ambiguous) are overruled. Objection to prior conviction evidence has been resolved by Court’s ruling on Plaintiff’s MIL No. 1.