Cho v. City Of San Jose

Background

Anthony Sung Cho’s case arises from a July 18, 2020 encounter with San Jose police officers. The parties dispute what happened after officers chased Cho: Cho says he fell, surrendered with his hands raised, and was subjected to unreasonable force; the officers say he resisted their efforts to secure him, requiring force that included baton strikes. Cho alleges that he suffered serious injuries.

Officer Matthew Rodriguez, one of the defendants, was also the subject of a separate pending criminal prosecution concerning a July 22, 2020 law-enforcement action involving another woman. Rodriguez argued that testimony in Cho’s civil case could be used against him in that criminal prosecution. During discovery, the court had required Rodriguez to attend a deposition but allowed him to invoke his constitutional protection against self-incrimination for individual questions that he believed required it. Rodriguez later invoked that protection for questions about the basis for using force against Cho and about actions shown on body-camera footage.

The civil case was set for trial on January 11, 2023. Rodriguez asked the court to stay, or pause, further proceedings for about six months while the separate criminal prosecution was expected to be completed. Cho opposed the motion. The City and the other officer defendants took no position on it.

Legal standard

The court explained that the Constitution ordinarily does not require a civil case to be paused because a related criminal case is pending. A court may nevertheless grant a stay when the circumstances and interests of justice warrant one. The court considered the factors identified in Keating v. Office of Thrift Supervision, including the extent to which Rodriguez’s protection against self-incrimination was implicated, Cho’s interest in proceeding without delay, the burden on Rodriguez, the court’s case-management interests, and the interests of third parties and the public. Rodriguez, as the party requesting the stay, had the burden of showing that it was needed.

Court’s analysis

The court found that the civil and criminal proceedings involved different incidents. Although the incidents occurred four days apart, involved somewhat similar circumstances, and included allegations of excessive force, the facts otherwise did not overlap apart from Rodriguez’s involvement in both. Rodriguez’s motion did not explain specifically how his testimony in Cho’s case could incriminate him in the separate criminal prosecution. The court therefore found that Rodriguez’s constitutional rights would be no more than minimally affected if the civil trial proceeded as scheduled.

The court also determined that Cho had a strong interest in avoiding unnecessary delay. More than two years had passed since the incident, discovery was complete, and trial was less than three months away. In addition, because the separate criminal case had no trial date, it was uncertain whether a six-month stay would accomplish Rodriguez’s goal.

As to Rodriguez’s burden, the court stated that a civil defendant does not have an absolute right to avoid choosing between testifying and invoking the protection against self-incrimination. A civil factfinder may draw negative conclusions from a defendant’s invocation of that protection. Rodriguez did not identify a burden beyond choosing whether to remain silent, and he did not claim that he lacked adequate preparation time or that the civil trial would interfere with preparing his criminal defense. The court found that his burden would therefore be minimal.

The court said its own docket-management interests did not favor Rodriguez because he had not made a compelling showing on the other factors. The interests of third parties and the public were neutral because the parties had identified no case-specific considerations affecting them.

Disposition

The court concluded that a stay was not warranted and denied Officer Rodriguez’s motion to stay the proceedings. Judge Virginia K. Demarchi did not decide the underlying excessive-force claims in this order.