OPTIONAL: Brief Arguing that LAPD Investigation should not be excluded under Rule 407 or Rule 403

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This case concerns the death of Alex Aguilar (“Aguilar” or “decedent”) while in the custody of the Los Angeles Police Department (“LAPD”) on June 9, 2016. (RT 82-83, 592-94)¹ Plaintiffs, the decedent’s estate and two children, alleged that the individual Defendant officers used excessive force on Aguilar, causing his death by asphyxiation, and unreasonably and with deliberate indifference failed to provide necessary emergency medical care mandated by their training, in violation of the Fourth and Fourteenth Amendments to the Constitution. (RT 82-83; ER 262-263, 265-272) Plaintiffs further alleged that the individual Defendants’ constitutional violations were the result of policies, practices, and training of Defendant City of Los Angeles, pursuant to Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). (RT 82-83, ER 265-269) Plaintiffs alleged federal constitutional claims under 42 U.S.C. § 1983 against the individual Defendants - Matthew Medina, Sergio Melero, Dante Pagulayan, Enrique Lopez, and Andrew Hudlett - and Defendant City of Los Angeles, as well as pendant state law claims. (RT 82-83; ER 262-263, 265-272)

. . .

The LAPD immediately initiated an in-custody death investigation. . . . [and] the LAPD’s force investigation division generated a recommendation condoning the force, with a minority opinion to the contrary. (ER 628-631) However, the LAPD Chief of Police and Los Angeles Board of Police Commissioners adopted the minority opinion and issued findings that the *6 force used on Aguilar was unreasonable and, in various respects, violated LAPD policy and training.

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I. The Trial Court Erroneously Excluded the LAPD Findings that the Use of Force Against Aguilar Was Unreasonable and Out of Policy

The trial court granted Defendant Medina’s motion to exclude the LAPD findings on the grounds that the evidence was more prejudicial than probative (FRE 403) and constituted inadmissible post-remedial measures (FRE 407). (ER 36-38) This decision was erroneous and an abuse of discretion.

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A. The Trial Court Abused Its Discretion in Excluding the LAPD Findings Prior to Trial

1. Rule 403: The Evidence Was Directly Relevant to Plaintiffs’ Claims and Not Unfairly Prejudicial

To be sure, a trial court’s “Rule 403 determination is subject to great deference, because ‘the considerations arising under Rule 403 are susceptible only to case-by-case determinations, requiring examination of the surrounding facts, circumstances, and issues.”’ United States v. Lloyd, 807 F.3d 1128, 1152 (9th Cir. 2015) However, it is not without limits. Rule 403 “is an extraordinary remedy to be used sparingly because it permits the trial court to exclude otherwise relevant *14 evidence. Under the terms of the rule, the danger of prejudice must not merely outweigh the probative value of the evidence, but substantially outweigh it.” United States v. Mende, 43 F.3d 1298, 1302 (9th Cir. 1995) (emphasis in original); United States v. Kenny, 645 F.2d 1323, 1342 (9th Cir. 1981) (“Rule 403 sets a fairly stringent standard [for exclusion of evidence].”).

“[P]rejudice outweighs probative value where the facts arouse the jury’s feelings for one side without regard to the probative value of the evidence, or in other words, if the jury is basing its decision on something other than the established facts and legal propositions in the case.” United States v. Bowen, 857 F.2d 1337, 1341 (9th Cir. 1988) (emphasis added). This commonly occurs where the evidence is of a type that will appeal to the juror’s emotions, passions, or prejudices. See United States v. Skillman, 922 F.2d 1370, 1374 (9th Cir. 1990). Importantly, not all prejudice is unfair. “That evidence may decimate an opponent’s case is no ground for its exclusion under 403. The rule excludes only evidence where the prejudice is ‘unfair’ - that is, based on something other than its persuasive weight.” United States v. Cruz-Garcia, 344 F.3d 951, 956 (9th Cir. 2003).

In this case, there is little indication that the evidence would have “an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” Fed. R. Evid. 403, Advisory Committee Notes. The *15 trial court reached a contrary conclusion by deferring to distinguishable and unpersuasive rulings in other cases. This was an abuse of discretion because “as a matter of law [] a court does not properly exercise its balancing discretion under Rule 403 when it fails to place on the scales and personally examine and evaluate all that it must weigh.” United States v. Curtin, 489 F.3d 935, 958 (9th Cir. 2007) (reversing because trial court failed to read entirety of evidence requiring a 403 ruling).⁴ 

a. The LAPD Findings Were Directly and Obviously Relevant to the Claims in the Case

In an excessive force case, “the question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them.” Graham v. Connor, 490 U.S. 386, 397 (1989). In this particular case, Plaintiffs alleged that the force used against Aguilar, in particular and especially the use of the Taser by Defendant Medina on five separate occasions within a period of one minute, was objectively unreasonable because Aguilar did not take any threatening *16 or violent action against the officers prior to the use of the Taser and was merely attempting to hide evidence. Medina’s excessive force was also a predicate violation for excessive force claims against Defendants Melero and Pagulayan as integral participants / potential intervenors and against Defendant City of Los Angeles pursuant to Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). Boyd v. Benton County, 374 F.3d 773, 780 (9th Cir. 2004) (individual defendant liability based on integral participation in constitutional violation); Cunningham v. Gates, 229 F.3d 1271, 1289 (9th Cir. 2000) (individual defendant liability based on failure to intervene); City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (Monell liability typically predicated on a constitutional violation by individual defendant).

The Chief of Police found that the use of force by Defendant Medina, i.e., the deployment of the Taser, was not “objectively reasonable.” (ER 626) This finding is directly and explicitly relevant to the heart of Plaintiffs’ excessive force claims. The Chief of Police also made a number of other relevant findings, including: (1) Medina applied the taser to Aguilar’s back, when he was on all fours (ER 626); (2) “[A]n officer with similar training and experience as Officer Medina would not reasonably believe Aguilar’s actions were violent or posed an immediate threat to himself or others.” (ER 626); and (3) the officers failed to give a warning required by LAPD policy (ER 622). All of these facts and issues were disputed in *17 this case, see pages 6-7, supra, and all of them were relevant to the determination of whether the use of force against Aguilar was unreasonable.

As a matter of Ninth Circuit law, the violation of police policy and training is relevant to the use of force inquiry, which is determined by the “totality of the circumstances” confronting the officer. See Glenn v. Washington Cnty., 673 F.3d 864, 871, 875 (9th Cir. 2011); Aranda v. City of McMinnville, 942 F. Supp. 2d 1096, 1102 (D. Or. 2013) (“Ninth Circuit case law [] makes clear that police department policies may be relevant to determining the reasonable range of an officer’s conduct in an excessive force case.”). Thus, even if the LAPD policy had not adopted the Graham standard, the fact that Defendants’ actions violated their agency’s policies and training was clearly relevant for proving that they were not acting reasonably under the circumstances of this case.

Moreover, the LAPD findings were presumptively admissible under Federal Rule of Evidence 803(8)(A)(iii) as an evaluative report resulting from a legally authorized investigation. (CR 144) In such circumstances, both facts and opinions stated in the report are admissible. Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 161-67, 170 (1988); Gilbrook v. City of Westminster, 177 F.3d 839, 858 (9th Cir. 1999). Law enforcement reports from internal investigations fall within the scope of Rule 803(8)(A)(iii). Wilson v. Beebe, 770 F.2d 578, 590 (6th Cir. 1985) (en banc) (supervisor report on police shooting admissible as public record under *18 Rule 803(8)(A) against defendant officer); Aranda v. City of McMinnville, 942 F. Supp. 2d 1096, 1103 (D. Or. 2013) (police department use of force review admissible as “factual findings from a legally authorized investigation”). 

b. The Trial Court’s 403 Ruling Relied on Generic and Inapplicable Reasoning and Failed to Distinguish Prejudice from Unfair Prejudice

The order excluding the LAPD findings did not independently evaluate whether they gave rise to “unfair” prejudice that “substantially outweighed” their relevance in this particular case. Fed. R. Evid. 403. Rather, the district court relied on two citations, one to an easily distinguishable Ninth Circuit case and the other to an unpublished district court case. (ER 37-38) See Argument Section I(A)(1)(d), infra.

The court’s concerns regarding prejudice - as inferred from the parentheticals for the cases cited by the trial court - appear to have been: (1) “the jury might [infer] that [the defendant officers] were guilty of wrongdoing merely because the Police Department conducted disciplinary proceedings”; (2) “[t]he jury might [give] unfair or undue weight to this evidence”; (3) the jury “might [be] confused as to the relevance of this evidence”; (4) the “conclusions in the report were based on evidence collected during the investigation which may or may not be the same evidence the jury would be exposed to at trial”; and (5) “informing jurors regarding the outcome of the internal affairs investigation would be *19 unhelpful and ‘may in fact be harmful to the jury.” (ER 37-38) For the reasons stated below, these concerns do not support the exclusion of the LAPD findings under Rule 403.

i. Several Types of Possible Prejudice Referenced by the Trial Court Simply Are Not at Issue in this Particular Case.

In this case, there is no concern that the jury would infer wrongdoing from the mere existence of a disciplinary proceeding because the LAPD findings were not the result of disciplinary proceedings and did not result in discipline. The findings were the result of an in-custody death investigation; such investigations are required as a matter of LAPD policy for all in-custody deaths. (RT 628-29) The mere existence of a policy-mandated investigation would not give rise to any inference that the defendant officers were guilty of wrongdoing. Moreover, the jury was already aware of the existence of the investigation because interviews conducted during the investigation, particularly the interviews of the Defendants, were central to the evidence in the case, and the investigation itself was referenced at several points during the trial. (See, e.g., RT 628-29, 695, 794-98, 1761-63) Accordingly, the jury was already exposed to whatever prejudicial inference might be drawn by the existence of an investigation.

The concern that “conclusions in the report were based on evidence collected during the investigation which may or may not be the same evidence the *20 jury would be exposed to at trial” (ER 37-38) is somewhat illogical, inapplicable in the instant case, and immaterial to the 403 inquiry. In this case, the use-of-force investigation reviewed the same evidence that was later presented to the jury, generally: statements by the involved officers, photos, taser logs, and whatever video was available. Aside from expert opinion testimony and subsequent inconsistent statements by the Defendant officers, nothing new was introduced at trial that was not available at the time of the LAPD use-of-force investigation. To the extent that the jury did have access to different evidence, and Defendants believed that such evidence impeached the LAPD findings, they were free to present that evidence and argue the matter in closing.

In fact, the LAPD use-of-force investigation and findings were highly probative to Plaintiffs’ case precisely because they were based on Defendants’ candid post-incident statements that Defendants later amended and disavowed. The LAPD finding, based on the Defendants’ original statements, would have powerfully highlighted the inconsistencies in Defendants’ later in-court testimony and demonstrated the significance of those inconsistencies.

ii. The Potential for Undue Weight and Confusion Was Minor, not Substantial, and Could Have Been Cured with a Limiting Instruction

Undue weight and confusion of issues are proper factors for consideration in the context of Rule 403, but they are not significant concerns in this case.

*21 The LAPD Chief of Police and Police Commission reviewed the evidence relating to Aguilar’s death and, based on that evidence, made findings that were directly tied to “established facts and legal propositions in the case” and not to anything that would have a distracting emotional impact on the jury. See United States v. Orr, 977 F.2d 593 (9th Cir. 1992). The persuasive weight of the evidence was based not on any affinity that any juror would have with the LAPD Chief of Police or the members of the Police Commission, but rather on the lack of bias that those persons would have against the Defendants and their intimate knowledge of policing generally as well as LAPD police policy and training. In other words, any weight placed by the jury on this evidence would not be “undue” or “unfair” but well deserved.

Regarding confusion, the only potential for confusion identified by Defendants below was the possibility that the jury would not be able to distinguish between a violation of LAPD policy and a constitutional violation. This concern, to the extent that it is a concern at all, is simply insufficient to justify exclusion of the evidence. The jury instructions that are given in constitutional tort cases demand that jurors manage much more confusing concepts than this one. And in this case, the LAPD’s policy was explicitly based on the constitutional standard and used the exact same language as Graham v. Connor, 490 U.S. 386, 397 (1989). (RT 2325) Moreover, both parties presented extensive evidence regarding the relevant LAPD *22 policies and offered competing expert testimony regarding what they required. The LAPD findings therefore posed no greater potential for confusion than the evidence already before the jury.

In this regard, courts regularly reject undue weight and confusion arguments in the context of public reports such as this one. See, e.g., In re Aircrash in Bali, Indonesia, 871 F.2d 812, 816 (9th Cir. 1989) (FAA Report following plane crash, admissible; airline defendant failed to demonstrate that the report was “unduly prejudicial”); Moss v. Ole S. Real Estate, Inc., 933 F.2d 1300, 1308 (5th Cir. 1991) (reversing exclusion of report; 403 “undue weight” and “confusion” arguments would apply in every case and thereby “gut the admissibility of evaluative reports under Rule 803(8)”); Quinn v. Everett Safe & Lock, Inc., 53 F. Supp. 3d 1335, 1340 (W.D. Wash. 2014) (rejecting argument that the jury would “simply defer to the [findings of] Department of Labor rather than evaluate the evidence for itself”). The prejudice in those cases - that the findings in the report are directly relevant to the issues before the jury and therefore the report might be unduly influential on the jury - is exactly the kind of prejudice that is not unfair under Rule 403. The same reasoning applies here.

Finally, to the extent that there was any concern regarding confusion of issues or undue weight, such a concern could have easily been managed with a simple instruction. See, e.g., *23 United States v. Boulware, 384 F.3d 794, 808 (9th Cir. 2004) (reversing exclusion of evidence; “Any danger that the jury would have given undue weight to the state court judgment could have been dealt with by a cautionary instruction.”); Velazquez v. City of Long Beach, 793 F.3d 1010, 1028 (9th Cir. 2015) (unfair prejudice “could have been cured short of categorical exclusion by an appropriate limiting instruction”). 

. . .

d. This Case Is Readily Distinguishable from Maddox; Other District Courts Have Properly Rejected 403 Arguments Regarding Similar Evidence

As stated above, the trial court’s order relies on citations to two cases - Maddox v. City of Los Angeles, 792 F.2d 1408, 1417 (9th Cir. 1986) and an unpublished district court case. (ER 37-38) But those cases cannot serve as a substitute for independent Rule 403 balancing.

Maddox does not hold that evidence relating to police internal investigations is per se inadmissible under Rule 403, but merely affirms a Rule 403 balancing under the particular facts of that case, despite it being a “close question.” Id. at 1417-18. The district court’s unreasoned reliance on Maddox was misplaced. see United States v. Sepulveda-Barraza, 645 F.3d 1066, 1070 (9th Cir. 2011) (“per se rule” regarding inadmissibility of evidence based on Ninth Circuit case regarding similar evidence would be “inconsistent with the case-by-case approach mandated by Rule 403”); Microsoft Corp. v. Motorola, Inc., 795 F.3d 1024, 1056 (9th Cir. 2015) (previous Ninth Circuit cases affirming exclusion of consent decree evidence under Rule 403 did not govern instant case where the district court admitted similar evidence).

*26 Moreover, Maddox is easily distinguishable. The case did not concern an agency finding, but rather an admission by an officer during the course of a disciplinary proceeding that he violated the department’s choke hold moratorium. 792 F.2d at 1417. The policy and other relevant evidence were already before the jury, and there was little dispute that the officer violated the policy. Id. at 1411, 1417. His position at trial was that he had not, personally, been informed of the moratorium (he missed roll call on the day it was announced), not that he had not violated it. Id. at 1411-12. Accordingly, the Court acknowledged that the “evidence arguably had little probative value.” Id.

Regarding prejudice, the Maddox Court stated that “the prejudicial effect of this evidence was also arguably great. The jury might have inferred that Officer Harris was guilty of wrongdoing merely because the Police Department conducted disciplinary proceedings. The jury might have given unfair or undue weight to this evidence or they might have been confused as to the relevance of this evidence.” 792 F.2d at 1417 (emphasis added). But, the Court stopped short of affirmatively stating that the evidence had significant prejudicial effect. And as set forth supra, the Maddox Court’s primary concern regarding the possible inference of wrongdoing from disciplinary proceedings, is not at issue here.

*27 In the end, the holding of Maddox is very limited: under the particular facts of that case, although it was a “close question,” the district court did not abuse its broad discretion under Rule 403. 792 F.2d at 1117.

The unpublished case cited by the trial court below, Vazquez v. City of Long Beach, No. CV 12-9923 PJW, 2016 WL 9114912 (C.D. Cal. Apr. 19, 2016), contains no statement of facts and provides little analysis on the relevant issue. It is not persuasive and cannot support the trial court’s decision in this case. Moreover, the Vazquez evidentiary ruling was not appealed because the Plaintiffs won at trial. See Vazquez v. City of Long Beach, No. CV 12-9923 PJW, 2017 WL 5973290 (C.D. Cal. Jan. 24, 2017).

District courts that have independently conducted Rule 403 balancing with respect to evidence similar to the evidence in this case have concluded that the police department findings were admissible. Bonds v. Dautovic, 725 F. Supp. 2d 841, 846 (S.D. Iowa 2010) (403 prejudice and confusion arguments are “not compelling” because the “potential damaging effect” of the chief of police finding that the defendant used “inappropriate” force was the kind that derives from the relevance of the evidence not some unfair consideration); Aranda v. City of McMinnville, 942 F. Supp. 2d 1096, 1103 (D. Or. 2013) (admitting internal investigation findings that “there d[id] not appear to be a valid basis for administering this level of force” by the defendant officers and rejecting the same *28 Rule 403 arguments made in this case); see also Wilson v. Beebe, 770 F.2d 578, 590 (6th Cir. 1985) (affirming admission of report of internal use of force investigation over challenges under Rules 403 and 407).

In this particular case, the court failed to conduct a case-specific 403 analysis and relied on reasoning that was inapplicable and unpersuasive. Because the court misjudged, or failed to judge, the relevant factors, the ruling was an abuse of discretion. Cf. United States v. Boulware, 384 F.3d 794, 808 (9th Cir. 2004) (reversing 403 exclusion of evidence; trial court misjudged probative value of the evidence; potential undue weight prejudice and confusion of issues could have “easily” been controlled); United States v. Cruz-Garcia, 344 F.3d 951, 956-57 (9th Cir. 2003) (reversing 403 exclusion of evidence; trial court overestimated potential unfair prejudice from evidence and failed to recognize the extent to which the identified prejudice was not “unfair,” but rather directly related to the relevance of the evidence).

2. Rule 407: The LAPD Findings Did Not Constitute a Subsequent Remedial Measure

The trial court’s order also held, citing Maddox, that the LAPD findings constitute “remedial measures” that are inadmissible under Federal Rule of Evidence 407. This ruling was erroneous as a matter of law.

Rule 407 prohibits the use of subsequent remedial measures - policy changes, product re-design, warnings, etc. that are implemented after an incident *29 and “would have made an earlier injury or harm less likely to occur” - if they are offered to prove, inter alia, “negligence” or “culpable conduct.” Fed. R. Evid. 407. Such measures are still admissible for other purposes, including impeachment. Id. “Rule 407 includes only the actual remedial measures themselves and not the initial steps toward ascertaining whether any remedial measures are called for.” Fasanaro v. Mooney Aircraft Corp., 687 F. Supp. 482, 487 (N.D. Cal. 1988); Aranda v. City of McMinnville, 942 F. Supp. 2d 1096, 1103 (D. Or. 2013) (“By its terms,” Rule 407 “does not extend to post-incident investigations into what did occur.”).

The trial court’s contrary ruling, excluding the entirety of the LAPD findings, is based on the following statement in Maddox: “The Internal Affairs investigation and measures taken by the defendant City were remedial measures taken after the incident.” Maddox, 792 F.2d at 1417. However, out of context, this statement is overbroad and misleading. In Maddox, the Court distinguished between the use of the evidence in question - “internal affairs investigation and measures taken by defendant City” - against the city versus its use against the individual defendant officer. Maddox, 792 F.2d at 1417. Only with respect to the city, did Maddox suggest that the evidence was inadmissible under Rule 407,⁵ and *30 the text of Maddox makes clear that the Court was focused on the nature of the internal investigation - a “disciplinary proceeding” - and the remedial measures resulting from such a proceeding, rather than any evidence or findings therein. Id.

Accordingly, after Maddox, several trial courts in this circuit have correctly rejected Rule 407 as a basis for excluding internal investigations and findings by police departments and other entities. Estate of Nunez by & through Nunez v. Cty. of San Diego, 381 F. Supp. 3d 1251, 1255 (S.D. Cal. 2019) (“[A] defendant’s internal investigations and reviews might constitute the initial step toward identifying the need for particular remedial action, but they are not themselves excluded under Rule 407.” (internal quotations omitted)); Aranda v. City of McMinnville, 942 F. Supp. 2d 1096, 1103 (D. Or. 2013) (Under 407, “[t]here is a distinction, however, between the actual disciplining of officers for their conduct, which could constitute a remedial measure, and the investigation that precedes a disciplinary process”; citing Maddox).

And other circuits have reached similar conclusions. Wilson v. Beebe, 770 F.2d 578, 590 (6th Cir. 1985) (police department’s post-shooting report was not excluded under Rule 407 because “[t]he report did not recommend a change in procedures following the shooting; it was a report of that incident and nothing *31 more”); see also, e.g., Novick v. Shipcom Wireless, Inc., 946 F.3d 735, 739 (5th Cir. 2020) (“[P]ost-accident investigations” and reports are not subsequent remedial measures under Rule 407); Rocky Mountain Helicopters, Inc. v. Bell Helicopters Textron, a Div. of Textron, Inc., 805 F.2d 907, 918 (10th Cir. 1986) (“It would strain the spirit of the remedial measure prohibition in Rule 407 to extend its shield to evidence contained in post-event tests or reports.”).

Accordingly, the LAPD findings were not post-remedial measures within the meaning of Rule 407, and Maddox, read correctly, is consistent with the above cases, which distinguish between reports reflecting investigations and findings (admissible) and the actual remedial measures taken based on those findings (inadmissible). Ironically, the remedial measures included in the LAPD findings - additional debriefing and retraining imposed on Medina and Melero - were the only parts of the LAPD findings that were admitted, because they were relevant for a non-407 purpose. (RT 11-12, 794-800, 1569-74, 1763-64) The trial court’s exclusion of the remainder of the LAPD findings cannot be justified by Rule 407. 

. . .

CONCLUSION

For all of the foregoing reasons, Plaintiffs respectfully request that the Court vacate the judgment and remand for a new trial.