Foshee v. City Of Gilroy

Background

The court resolved the parties’ motions in limine—pretrial requests to decide whether particular evidence or arguments may be presented to the jury. The remaining case concerns whether Officer Robert Zuniga used excessive force when he deployed a police canine, Scotty, to bite Joseph Foshee. The court stated that probable cause to arrest Foshee and the legality of his detention and arrest were not issues for trial. It also noted that Foshee no longer asserted a claim against the City of Gilroy based on municipal policies.

Foshee’s motions

1. Criminal history and police contacts: The court granted Foshee’s motion to exclude evidence of his criminal history and prior police contacts because the evidence was irrelevant and unfairly prejudicial. If Foshee portrayed himself as inexperienced or unsophisticated with police, or suggested that the May 5, 2018 incident was his first police encounter, the court would allow limited questioning about the number of his arrests or police encounters during the preceding 10 years. The court could allow more probing questioning if Foshee denied or evaded the subject.

2. Prior drug use and toxicology report: The court granted the motion to exclude Foshee’s history of drug use, evidence of drug use on the incident date, the toxicology report, and references to drug use in later hospital records. Officer Zuniga had not provided enough evidence connecting the presumptive positive methamphetamine test—taken more than 12 hours after the alleged earlier use—to Foshee’s behavior, judgment, or memory. The court allowed evidence that the reporting witness told 911 that Foshee appeared to be on medication, because the opinion states that this information was made known to officers. Officers could testify about their perceptions and observations but could not offer opinions about whether Foshee was under the influence of drugs.

3. Drugs found after arrest: The court granted the motion to exclude evidence or references to drugs found in Foshee’s wallet after his arrest. It found that the drugs did not sufficiently show that Foshee was under the influence during the incident, was trying to avoid arrest because of drug possession, or was making furtive movements. The court also noted that Zuniga did not know about the drugs and that officers did not suspect drugs were concealed in Foshee’s vehicle.

4. Post-arrest hospital interview: The court granted the motion to exclude evidence of or references to Foshee’s post-arrest interview at the hospital. It found that Zuniga had not shown that the interview statements were proper admissions for impeachment or that they were knowingly and voluntarily made. The court also found that Foshee’s response to Zuniga’s statement about listening to the dog could not reasonably be treated as an admission that Foshee failed to listen or that the canine deployment was justified. The court further found that the interview had little probative value and was prejudicial.

5. May 9, 2018 psychiatric-hold incident: Subject to further submissions and orders concerning Rosemarie Foshee’s testimony, the court granted in part and denied in part the motion. Evidence about the May 9 incident could not be used to defend against liability, and no one could refer to the fact that Foshee was placed under a psychiatric hold under California Welfare and Institutions Code section 5150. The court allowed evidence about conduct during that incident if it could show that Foshee’s claimed injuries worsened or that his damages resulted from something other than the May 5 incident.

6. Brad Smith’s testimony: The court granted in part and denied in part Foshee’s motion concerning Zuniga’s police-practices expert, Brad Smith. Smith could testify, to the extent disclosed in his expert report, about standards governing police canine use and whether Zuniga’s deployment of Scotty was consistent with those standards. He could not testify about probable cause to arrest, whether the City’s policies were unconstitutional, Foshee’s injuries or medical treatment, what actually happened, or which interpretation of the evidence was more credible. He also could not use legal terms such as “excessive force” to suggest the conclusion the jury should reach. The court allowed testimony that canine deployment is generally considered less-lethal or non-lethal force if properly disclosed and framed as police-practice testimony rather than a legal conclusion. The court required Zuniga to provide a supplemental submission explaining how any testimony about compliance with standards would avoid improperly telling the jury what happened.

Zuniga’s motions

1. Personnel and unrelated matters: The court granted Zuniga’s motion concerning his personnel and background information, unrelated incidents, other canine contacts, citizen complaints, lawsuits, and internal-affairs investigations, subject to the discussion at the pretrial conference.

2. Other police-force reports: The court granted in part and denied in part the motion. It excluded evidence and references to specific, unrelated incidents of police use of excessive or deadly force. It allowed limited questioning during jury selection about whether prospective jurors’ exposure to information or media reports about other officer-involved incidents would affect their fairness. It also allowed limited testimony about matters on which the parties’ police-procedure experts relied to establish their qualifications and experience, and allowed some general references during closing argument to matters of common knowledge, subject to limits against inflammatory or confusing argument.

3. Evidence that Foshee was unarmed: The court granted the motion to exclude evidence or references to the fact that Foshee was found unarmed after the incident. It reasoned that the later discovery of no gun did not show whether Zuniga reasonably believed Foshee had a gun at the time. The court allowed evidence that the reporting witness said Foshee had a gun, testimony about whether officers saw Foshee with a gun, and Foshee’s testimony about what he told officers. If an officer testified that Foshee had a gun or acted as if he had one, Foshee could fully rebut that testimony. The court also said it might instruct the jury that no gun was found if Zuniga created the impression that Foshee was armed.

4. Medical bills: The court granted the motion to exclude medical bills, including during jury selection, except when a witness gave specific testimony that could be impeached with specific medical-bill evidence.

5. Legal justification for detention and arrest: The court granted the motion. It barred evidence, including expert testimony, about whether Foshee’s detention and arrest were legally justified. It declined to give Zuniga’s requested instruction stating that the detention and arrest were lawful or directing the jury not to consider the issue. Instead, the parties were ordered to try to agree on an instruction or undisputed statement telling the jury that the legality of the detention and arrest was not an issue, and to submit their proposal by May 25, 2021.

6. Scott DeFoe’s testimony: The court granted in part and denied in part the motion concerning Foshee’s expert, Scott DeFoe. It granted the motion as to opinions about Foshee’s dismissed municipal-policy claims. DeFoe could not testify about opinions absent from his written expert report unless Zuniga had solicited those opinions during DeFoe’s deposition; opinions DeFoe volunteered or that Foshee solicited during the deposition were excluded. The court denied the motion as to testimony considering the total circumstances, including other officers’ actions, testimony about applicable police standards and how Zuniga’s conduct compared with them, and the challenged examples that did not improperly decide the facts. The court granted the motion to bar DeFoe from offering opinions about the nature or seriousness of Foshee’s injuries because DeFoe did not claim relevant medical training.

Disposition

The order resolved the listed motions in limine as granted, denied, or granted in part and denied in part as described above. It did not decide whether Zuniga ultimately used excessive force; that issue remained for the trial.