Cupp v. Smith

Nature of the order

This final pretrial order, entered under Rule 16(e) of the Federal Rules of Civil Procedure, controls the course of the trial unless the court later modifies it. It does not decide the remaining claim on its merits. The court states that one cause of action remains: Ronald Cupp’s claim under 42 U.S.C. § 1983, a federal civil-rights statute, alleging an unlawful search in violation of the Fourth Amendment against Andrew Smith.

Motions in limine

A motion in limine asks the court to decide before trial whether particular evidence may be presented to the jury.

- Cupp’s first motion, seeking to exclude visual depictions of the Arlington Avenue property other than photographs produced in discovery, was denied. The court said the issue was moot because both parties represented that they did not intend to present photographs other than those taken on February 15, 2019. The order states that only photographs taken on that date are admissible. - Cupp’s second motion, seeking to limit evidence about the property’s condition to February 15, 2019, was granted in part and denied in part. Smith may introduce evidence relating to Smith’s inspection on that date. - Cupp’s third motion, seeking to exclude evidence or testimony that he was a “sovereign citizen” or affiliated with the “sovereign citizen movement,” was granted, except if testimony opens the door to that subject. - Cupp’s fourth motion to prohibit expert-witness testimony was granted. Because neither side disclosed experts during discovery, neither side may introduce expert or opinion testimony. - Cupp’s fifth motion to exclude evidence of his prior criminal history was granted in part and denied in part. Evidence of his convictions for attempting to record a false or forged document and forgery may be used for impeachment under Federal Rule of Evidence 609(a)(2), because those crimes involved a dishonest act or false statement. His conviction for marijuana possession may not be used for impeachment because the offense was punishable by less than one year of imprisonment and did not concern his character for truthfulness. - The provided text of Cupp’s sixth motion is incomplete. It states that the evidence at issue will be excluded unless Smith makes an evidentiary proffer showing its relevance based on trial evidence, but it does not fully identify the evidence or the motion’s subject. - Smith’s first motion to prohibit Cupp from presenting evidence or testimony about economic damages was granted. Cupp may not seek recovery for expenses incurred to bring the property into compliance after the County of Sonoma’s administrative process concerning building and zoning violations. The court also ruled that testimony from David Harris about that work was irrelevant. - Smith’s second motion to exclude evidence, testimony, or argument about general damages or emotional-distress damages was denied. The court stated that those damages may be available if the constitutional violation caused emotional injury, but any evidence must relate to Smith’s entry onto the property rather than Cupp’s later efforts to bring the property into compliance with county requirements. - Smith’s third motion to prohibit expert-witness testimony was granted for the same reasons as Cupp’s fourth motion. - Smith’s fourth motion concerning evidence or argument about indemnification against liability was granted and was unopposed. The provided text is incomplete about the precise wording and subject of that motion.

Trial procedures

The court will conduct jury questioning. After the court’s questioning, each side will have 15 minutes to question the panel but may not use that time to argue the case. The jury will have seven members, and each side will have three peremptory challenges.

The parties must meet and confer and file a new proposed joint verdict form and a new set of jury instructions by March 17, 2023. The verdict form must include factual questions about the scope of the search or inspection, whether Smith entered the home’s curtilage, whether the structure was being used as a garage or living space, whether Smith reasonably believed the property was abandoned, and whether Cupp had a reasonable expectation of privacy in the searched area.

The order gives additional directions for revising the jury instructions, including changes concerning capacity, curtilage, damages, punitive damages, the “knock and talk” rule, and “plain view.” The parties must also meet and confer about stipulated facts and how those facts will be presented to the jury.

Remaining defenses and schedule

Smith’s stated affirmative defenses are qualified immunity, the “knock and talk” exception, and the “plain view” exception. Smith conceded that the “open fields” doctrine will not be presented to the jury.

The trial was scheduled to last five days beginning April 3, 2023, from 8:30 a.m. to 1:30 p.m., with two 15-minute breaks each day. Each side was allotted nine hours to present its case, excluding jury selection and jury instructions. Witness lists for each trial day were due by 6:00 p.m. the preceding evening, subject to exceptions for rebuttal and impeachment witnesses. The order was signed by Phyllis J. Hamilton, United States District Judge.