                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


ROBERT I. REESE, JR.,                   No. 16-16195
                 Plaintiff-Appellant,
                                           D.C. No.
                 v.                     2:13-cv-00559-
                                          GEB-KJN
COUNTY OF SACRAMENTO; DUNCAN
BROWN, Sacramento County
Sheriff’s Department Deputy (Badge
#1220); ZACHARY ROSE,
Sacramento County Sheriff’s
Department Deputy (Badge #832),
              Defendants-Appellees.



ROBERT I. REESE, JR.,                   No. 16-16230
                  Plaintiff-Appellee,
                                           D.C. No.
                 v.                     2:13-cv-00559-
                                          GEB-KJN
COUNTY OF SACRAMENTO;
ZACHARY ROSE, Sacramento County
Sheriff’s Department Deputy (Badge        OPINION
#832),
             Defendants-Appellants,

                and
2             REESE V. COUNTY OF SACRAMENTO

 DUNCAN BROWN, Sacramento
 County Sheriff’s Department Deputy
 (Badge #1220),
                         Defendant.


         Appeal from the United States District Court
             for the Eastern District of California
    Garland E. Burrell, Jr., Senior District Judge, Presiding

           Argued and Submitted December 8, 2017
                  San Francisco, California

                       Filed April 23, 2018

    Before: Milan D. Smith, Jr. and Sandra S. Ikuta, Circuit
       Judges, and Diane J. Humetewa,* District Judge.

                  Opinion by Judge Humetewa




    *
      The Honorable Diane J. Humetewa, United States District Judge for
the District of Arizona, sitting by designation.
               REESE V. COUNTY OF SACRAMENTO                             3

                            SUMMARY**


                             Civil Rights

    The panel (1) affirmed the district court’s decision
granting defendants’ post-verdict motion for judgment as
a matter of law on the issue of qualified immunity in a
42 U.S.C. § 1983 action alleging excessive deadly force;
(2) reversed the district court’s post-verdict decision
granting summary judgment sua sponte for the defendants
on plaintiff’s California Bane Act claim, and (3) affirmed the
denial of defendants’ requests for post-trial relief.

    A sheriff’s deputy shot plaintiff in his apartment during
a response to an anonymous 911 call after plaintiff opened his
front door holding a large knife. The panel noted the jury’s
verdict that the deputy violated plaintiff’s right to be free
from excessive force was sufficient to deny him qualified
immunity under the first prong of the qualified immunity
analysis, which considers whether there has been a violation
of a constitutional right. Nevertheless, addressing the second
prong of the analysis, the panel determined that plaintiff
failed to identify any sufficiently analogous cases showing
that under similar circumstances a clearly established Fourth
Amendment right against the use of deadly force existed at
the time of the shooting. The panel concluded that none of
plaintiff’s cases squarely governed the situation that the
deputy confronted such that he would have had clear warning
that his use of deadly force was objectively unreasonable.
The panel therefore affirmed the district court’s ruling that

    **
       This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4            REESE V. COUNTY OF SACRAMENTO

the deputy was entitled to qualified immunity on the Fourth
Amendment excessive force claim.

    In reversing the district court’s post-trial grant of
summary judgment in favor of defendants on the California
Bane Act claim for excessive force, the panel held that the
district court erroneously concluded that the Bane Act
requires a separate showing of coercion beyond that inherent
in the use of force. The panel further determined that the
Bane Act requires a specific intent to violate the arrestee’s
right. The panel concluded that although there was no
evidence of coercion independent from the deputy’s use of
objectively unreasonable force, it could not conclude that no
reasonable jury could find that the deputy had a specific
intent to violate plaintiff’s Fourth Amendment rights.
Accordingly, the panel remanded the Bane Act claim for a
new trial.

    Addressing defendants’ cross-appeal, the panel held that
plaintiff’s claims were not barred by Heck v. Humphrey,
512 U.S. 477 (1994) because defendants identified nothing in
the record showing the specific factual basis for plaintiff’s
“no contest” plea to violating California Penal Code
§ 417(a)(1). Without such information, the district court
could not determine that plaintiff’s claim of excessive force
in this case would call into question the validity of his
misdemeanor weapon conviction. The panel further held
that: (1) the jury’s award of $150,000.00 for future non-
economic loss was supported by substantial evidence; (2) any
error in the jury instruction on plaintiff’s Fourth Amendment
claim that authorized liability if it could be shown that
defendants shot at plaintiff was harmless; (3) the district court
did not abuse its discretion when it failed to exclude certain
expert testimony; and (4) there was no error in excluding the
            REESE V. COUNTY OF SACRAMENTO                    5

deposition testimony of a defense witness who did not appear
in court to testify.


                         COUNSEL

Dale K. Galipo (argued), Law Office of Dale K. Galipo,
Woodland Hills, California; Eric Grant, Hicks Thomas LLP,
Sacramento, California; Stewart Katz, Law Office of Stewart
Katz, Sacramento, California; for Plaintiff-Appellant.

John R. Whitefleet (argued) and Thomas L. Riordan, Porter
Scott, Sacramento, California, for Defendants-Appellees.


                         OPINION

HUMETEWA, District Judge:

    Plaintiff/Appellant Robert Reese, Jr. (“Reese”) appeals
the district court’s decision granting Defendants’/Appellees’
(“the Defendants”) post-verdict motion for judgment as a
matter of law on the issue of qualified immunity. Reese
further appeals the district court’s post-verdict decision
granting “summary judgment sua sponte” for the Defendants
on the California Bane Act (“Bane Act”) claim. The
Defendants cross-appeal the district court’s denial of their
requests for post-trial relief. Defendants also argue that Heck
v. Humphrey, 512 U.S. 477 (1994) should have barred
Reese’s claims because his misdemeanor criminal conviction
for exhibiting a knife arose out of the same acts. We have
jurisdiction under 28 U.S.C. § 1291.
6           REESE V. COUNTY OF SACRAMENTO

                        Background

    Robert Reese, Jr., filed this civil rights claim against the
County of Sacramento and two of its Deputy Sheriffs,
Duncan Brown and Zachary Rose, following a shooting
incident on March 25, 2011. In the hours leading up to the
incident, Reese had consumed large quantities of alcohol,
marijuana, and cocaine at a neighborhood party. The party
ended when Reese and his neighbor Nathan began arguing
over whether Reese had taken Nathan’s bottle of vodka.
Sometime after the party, Nathan’s girlfriend went to Reese’s
apartment to retrieve the vodka. Reese answered the door
holding a knife and refused to hand over the bottle. Around
4:30 a.m., Reese and Nathan exchanged several text
messages, some containing racial epithets. Shortly thereafter,
Reese heard knocking on his apartment door. He assumed it
was Nathan. It was not.

    Deputies Brown and Rose and several other police
officers arrived at Reese’s apartment complex shortly before
5:00 a.m. They were responding to an anonymous 911 call
that an African-American male had exited apartment 144 and
fired an automatic gun. The caller also stated that the male
was possibly crazy, under the influence of drugs, had a knife,
and was back inside apartment 144.

   Deputy Rose decided that someone should knock on the
door of apartment 144 to further investigate the 911 report.
The deputies decided that Deputy Brown, who had a rifle,
would stand back about 15 feet to cover the doorway while
Deputy Rose would knock on the apartment door. Deputy
Rose, concealing himself, stood to the side of the door and
other deputies lined up behind him. Deputy Rose, while
holding his handgun in one hand, knocked on the door with
            REESE V. COUNTY OF SACRAMENTO                     7

his flashlight. Deputy Brown testified that after Deputy Rose
knocked, “the door flew open. I saw a figure coming out,
arm up, extended, large knife[.]” Upon seeing the knife,
which he describes as being within a foot of Deputy Rose’s
neck, Deputy Brown fired his rifle at Reese. Deputy Rose,
seeing Reese with the knife in his hand, simultaneously
backed away from the door of the apartment. The next events
occurred in what Deputy Rose describes as a “millisecond.”
After the rifle shot, Deputy Rose advanced into the apartment
expecting to see Reese shot and incapacitated. Instead he saw
Reese standing upright in the apartment. He could not,
however, see Reese’s hands. Deputy Rose immediately fired
his handgun, aiming it at Reese’s chest.             He was
approximately three feet away from Reese. Reese fell
backward toward a couch and Deputy Rose saw blood on
Reese’s clothing and the carpet. At trial, Deputy Rose
testified that he was uncertain whether it was his or Deputy
Brown’s shot that actually hit Reese but believed that it was
his. Reese survived the incident and thereafter asserted civil
rights claims against the County and Deputies Brown and
Rose.

    After a seven-day jury trial, the jury returned a verdict in
favor of Reese on his Fourth Amendment excessive force
and Bane Act claims against Deputy Rose and the County.
The jury also returned a verdict in favor of Deputy Brown,
which Reese does not appeal. In separate interrogatories, the
jury determined that Deputy Rose’s pistol round, not Deputy
Brown’s rifle round, hit Reese. The jury also found that
Reese had a knife in his hand in an elevated position when he
opened the door. They answered “no” to the question of
whether Reese brandished the knife at Deputy Rose.
Question 14 asked the jury “[a]t the time Deputy Rose fired
his shot, did it appear that Plaintiff posed an immediate threat
8            REESE V. COUNTY OF SACRAMENTO

of death or serious physical injury to Deputy Rose?” The
jury answered “no.” The jury awarded Reese $534,340.00 in
compensatory damages including $150,000.00 for non-
economic loss.

     After the jury returned its verdict, the Defendants moved
for a judgment as a matter of law asserting that Deputy Rose
was entitled to qualified immunity, or alternatively that Reese
failed to prove by a preponderance of the evidence all of the
elements required for a Fourth Amendment battery and Bane
Act violation. The Defendants asserted that the evidence at
trial insufficiently established that it was Deputy Rose’s shot
that hit Reese, and thus Reese had not met his burden of
showing Rose had caused Reese’s harm. Finally, the
Defendants asserted that Reese’s claims were barred by Heck
v. Humphrey because he pleaded no contest to a violation of
California Penal Code section 417(a)(1). Defendants also
moved for a new trial, arguing that the district court erred in
its instruction to the jury on Reese’s Bane Act claim.

    The district court determined that Deputy Rose was
entitled to qualified immunity on Reese’s Fourth Amendment
claim. The district court then granted “summary judgment
sua sponte,” finding that Defendants were entitled to
judgment as a matter of law on Reese’s Bane Act claim,
concluding that Defendants’ proposed jury instruction on that
claim should have been given. The district court denied
Defendants’ other requests for post-trial relief, including their
Heck v. Humphrey claim. Reese appealed the district court’s
post-trial rulings in favor of Defendants. Defendants filed a
cross-appeal reasserting their Heck v. Humphrey claim and
asserting that the district court erred in several of its
evidentiary rulings and its award of future non-economic loss.
            REESE V. COUNTY OF SACRAMENTO                    9

                          Analysis

I. Defendants’ Post-Verdict Motion for Judgment as a
   Matter of Law

    The Court of Appeals “review[s] de novo the grant or
denial of a renewed motion for judgment as a matter of law.”
Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir. 2002). “A
renewed motion for judgment as a matter of law is properly
granted only ‘if the evidence, construed in the light most
favorable to the nonmoving party, permits only one
reasonable conclusion, and that conclusion is contrary to the
jury’s verdict.’” Castro v. County of Los Angeles, 833 F.3d
1060, 1066 (9th Cir. 2016) (quoting Pavao, 307 F.3d at 918).
Thus, although the Court does not defer to the district court’s
decision on the motion, it gives “significant deference to the
jury’s verdict and to the nonmoving parties . . . when deciding
whether that decision was correct.” A.D. v. Cal. Highway
Patrol, 712 F.3d 446, 453 (9th Cir. 2013).

   A. Qualified Immunity

    Reese first challenges the district court’s post-verdict
ruling that Deputy Rose is entitled to qualified immunity on
his Fourth Amendment excessive force claim.

    “The doctrine of qualified immunity protects government
officials ‘from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
“Qualified immunity gives government officials breathing
room to make reasonable but mistaken judgments about open
10           REESE V. COUNTY OF SACRAMENTO

legal questions. When properly applied, it protects ‘all but the
plainly incompetent or those who knowingly violate the
law.’” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (quoting
Malley v. Briggs, 475 U.S. 335, 341 (1986)). “The purpose
of qualified immunity is to strike a balance between the
competing ‘need to hold public officials accountable when
they exercise power irresponsibly and the need to shield
officials from harassment, distraction, and liability when they
perform their duties reasonably.’” Mattos v. Agarano,
661 F.3d 433, 440 (9th Cir. 2011) (quoting Pearson, 555 U.S.
at 231). “In determining whether an officer is entitled to
qualified immunity, we consider (1) whether there has been
a violation of a constitutional right; and (2) whether that right
was clearly established at the time of the officer’s alleged
misconduct.” Lal v. California, 746 F.3d 1112, 1116 (9th
Cir. 2014) (citing Pearson, 555 U.S. at 232).

    Here, the jury found Deputy Rose violated Reese’s right
to be free from excessive force under the Fourth Amendment.
“Therefore, the jury’s verdict against [Rose] is sufficient to
deny him qualified immunity on this prong of the analysis.”
See A.D., 712 F.3d at 456 (denying qualified immunity on a
post-verdict motion for judgment as a matter of law). Rose’s
entitlement to qualified immunity therefore turns on whether
Reese’s right was clearly established at the time of the
incident in 2011.

    Joining other circuit courts from around the country, this
Court recently determined that the “clearly established” prong
of the qualified immunity analysis is a matter of law to be
decided by a judge. Morales v. Fry, 873 F.3d 817, 824–25
(9th Cir. 2017). In Morales, we recognized that “the question
of whether a particular constitutional right is ‘clearly
established’ is one that the Supreme Court has increasingly
            REESE V. COUNTY OF SACRAMENTO                    11

emphasized is within the province of the judge.” Id. at 822.
“[C]omparing a given case with existing statutory or
constitutional precedent is quintessentially a question of law
for the judge, not the jury.” Id. at 823. We recognized,
however, that “[a] bifurcation of duties is unavoidable: only
the jury can decide the disputed factual issues, while only the
judge can decide whether the right was clearly established
once the factual issues are resolved.” Id.

     In arguing that his right to be free of excessive force
under these circumstances was clearly established, Reese
relies on the jury’s answer to Question 14, their finding that
it did not appear that Reese posed an immediate threat of
death or serious physical injury to Rose at the time Rose fired
his shot. Reese contends that by making this finding, the jury
determined Rose violated Reese’s clearly established right
not to be subjected to deadly force when he posed no
immediate threat to Rose or others. As Morales confirmed,
however, the question of whether the right was clearly
established is solely for the judge to decide, not the jury. See
id. at 825. Thus, although the jury’s finding that Reese posed
no immediate threat of death or serious physical injury to
Rose addresses the first prong of the qualified immunity
analysis, it does not answer the purely legal question of
whether the right was clearly established in this context.
Therefore, the district court was within its authority to
determine, as a matter of law, whether Deputy Rose was
entitled to qualified immunity, even where a jury determined
that he violated Reese’s Fourth Amendment right to be free
from excessive force.

    Moreover, the district court appropriately analyzed the
facts here to the established standard that “[a] Government
official’s conduct violates clearly established law when, at the
12           REESE V. COUNTY OF SACRAMENTO

time of the challenged conduct, ‘[t]he contours of [a] right
[are] sufficiently clear’ that every ‘reasonable official would
have understood that what he is doing violates that right.’”
al-Kidd, 563 U.S. at 741 (alterations in original) (quoting
Anderson v. Creighton, 483 U.S. 635, 640 (1987)). “We do
not require a case directly on point, but existing precedent
must have placed the statutory or constitutional question
beyond debate.” Id. Thus, “‘clearly established law’ should
not be defined ‘at a high level of generality.’” White v.
Pauly, 137 S. Ct. 548, 552 (2017) (per curiam) (quoting al-
Kidd, 563 U.S. at 741). “As [the Supreme] Court explained
decades ago, the clearly established law must be
‘particularized’ to the facts of the case.” Id. (citing Anderson,
483 U.S. at 640). “Such specificity is especially important in
the Fourth Amendment context, where the [Supreme] Court
has recognized that ‘[i]t is sometimes difficult for an officer
to determine how the relevant legal doctrine, here excessive
force, will apply to the factual situation the officer
confronts.’” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)
(per curiam) (second alteration in original) (quoting Saucier
v. Katz, 533 U.S. 194, 205 (2001)).

    We agree with the district court that Reese has not
identified any sufficiently analogous cases showing that
under similar circumstances, a clearly established Fourth
Amendment right against the use of deadly force existed at
the time of the shooting. The jury determined that when
Reese answered the door to his apartment, he had a knife in
his hand in an elevated position. Upon seeing Reese in the
doorway with the knife, which was very close to where Rose
was standing, Brown immediately fired a shot from his rifle
at Reese, but missed. After Brown fired the shot, he saw
Reese back into the apartment and drop the knife. Rose, who
saw Reese when he first opened the door, lost sight of Reese
             REESE V. COUNTY OF SACRAMENTO                    13

when he backed up into his apartment and after Brown fired
at him. Rose then advanced toward the doorway and was
surprised to see Reese standing in the apartment. Rose stated
that he could not see Reese’s hands but upon seeing him, shot
Reese in the chest from three to five feet away. Notably,
while the jury found that Reese did not brandish the knife at
Rose, they also found that at the time Rose fired his shot, he
did not see Reese’s hands.

    Although Reese goes to great lengths to remind this Court
that we do not demand a case with “materially similar”
factual circumstances or even facts closely analogous to his
case, Hope v. Pelzer, 536 U.S. 730, 741 (2002), none of
Reese’s cited cases demonstrate that the contours of his
Fourth Amendment right were sufficiently clear such that
“any reasonable official in [his] shoes would have understood
that he was violating it.” City & County of San Francisco v.
Sheehan, 135 S. Ct. 1765, 1774 (2015) (alteration in original)
(quoting Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014)).
Critically, Reese points to no case that considered the relevant
question whether Deputy Rose, having come within striking
distance of a suspect who had held a knife a fraction of a
second before, was objectively unreasonable in using deadly
force before determining whether the suspect still possessed
the knife. Compare Wilkinson v. Torres, 610 F.3d 546, 551
(9th Cir. 2010) (holding that officer’s shooting of plaintiff did
not violate a constitutional right where plaintiff had ignored
officer commands and was accelerating towards officer on
foot); Smith v. City of Hemet, 394 F.3d 689, 693, 702, 704 n.7
(9th Cir. 2005) (en banc) (declining to address qualified
immunity, but concluding that a rational jury could find that
officers’ use of pepper spray and a police canine on a plaintiff
was unconstitutionally excessive where the “[t]he record does
not reveal any basis for believing that [plaintiff] was armed,”
14          REESE V. COUNTY OF SACRAMENTO

where his wife had informed officers that plaintiff “did not
have a gun, there were no weapons in the house, and he was
clad in his pajamas”); Harris v. Roderick, 126 F.3d 1189,
1203 (9th Cir. 1997), cert. denied, 522 U.S. 1115 (1998)
(finding officer’s shooting of plaintiff objectively
unreasonable where the officer was “safely ensconced on [a]
hill overlooking” the cabin that plaintiff was running toward
and the plaintiff had made “[n]o threatening movement . . .
with respect to [the shooting officer] or anyone else, even
after [the officer] shot [plaintiff’s friend]”); Curnow By and
Through Curnow v. Ridgecrest Police, 952 F.2d 321, 323,
325 (9th Cir. 1991) (affirming district court’s denial of
officer’s motion for summary judgment on qualified
immunity grounds where the non-moving plaintiff’s evidence
showed that the plaintiff had not pointed his gun at officers,
his gun was not loaded, and he was not facing the officer who
opened fire).

    Reese relies on additional cases that post-date March
2011, when the incident occurred, but those decisions “could
not have given fair notice to [Deputy Rose] and are of no use
in the clearly established inquiry.” Brosseau v. Haugen,
543 U.S. 194, 200 (2004). Even to the extent that those cases
reflect clearly established case law that pre-dates March
2011, their factual contexts make clear that the law was not
clearly established for the circumstances Deputy Rose
confronted here. See Zion v. County of Orange, 874 F.3d
1072, 1076 (9th Cir. 2017) (holding excessive force was used
if defendant officer fired a second round of close range
bullets at a plaintiff who was curled up on the floor and
injured from a first round of fire, and then subsequently
stomped on the plaintiff’s head); Longoria v. Pinal County,
873 F.3d 699, 708–09, 710 (9th Cir. 2017) (holding that
officer’s use of deadly force could have violated a clearly
            REESE V. COUNTY OF SACRAMENTO                    15

established right if jury determined plaintiff who was
surrounded by law enforcement and had not brandished a
weapon during forty minutes of observation was in the
process of surrendering at the time of the shooting, rather
than assuming a shooting stance); Estate of Lopez by and
Through Lopez v. Gelhaus, 871 F.3d 998, 1021–22 (9th Cir.
2017) (remanding for trial where the facts, viewed in the light
most favorable to the non-moving plaintiff in response to
defendants’ motion for summary judgment on defense of
qualified immunity, could show that the force used was
unreasonable because the victim never raised the perceived
weapon or made a “harrowing gesture” when he turned
toward the officers).

    Moreover, Reese’s reliance on our decision in Hughes v.
Kisela, 862 F.3d 775 (9th Cir. 2016), only confirms that the
law was not clearly established here. In Hughes, we reasoned
that an officer’s shooting of a plaintiff who was approaching
a third party while holding a kitchen knife at her side violated
the plaintiff’s clearly established rights, where the facts
viewed in the plaintiff’s favor showed that she was not “angry
or menacing,” officers knew only that she has been using the
knife to carve a tree, and the plaintiff did not understand
orders to drop the weapon. Id. at 785. After Reese’s appeal
was argued, the Supreme Court summarily reversed our
decision in Hughes, concluding that it was “far from an
obvious case,” and that none of our precedents squarely
governed the facts involved. Kisela v. Hughes, 138 S. Ct.
1148, 1153 (2018). Given that Rose had greater reason to
perceive a threat here, and no luxury of time or distance to
discern whether Reese still posed such a threat, the Supreme
Court’s decision in Kisela v. Hughes further illustrates that
Rose is entitled to qualified immunity.
16             REESE V. COUNTY OF SACRAMENTO

    None of Reese’s cases “squarely govern” the situation
that Rose confronted such that they would have given Rose
clear warning that his use of deadly force was objectively
unreasonable. Mullenix, 136 S. Ct. at 310 (quotation marks
omitted).1 Absent a showing by Reese that the right was
clearly established at the time, Rose is entitled to qualified
immunity on the Fourth Amendment excessive force claim.
We therefore affirm the district court’s ruling that Deputy
Rose is entitled to qualified immunity on that claim.

     B. Reese’s Bane Act Claim

    Reese also claims that the district court erred when it
granted post-verdict summary judgment to Defendants on his
claim under California Civil Code section 52.1, known as the
Bane Act. Reese asserts that the district court properly
rejected the Defendants’ proposed jury instruction on his
Bane Act claim and therefore Defendants are not entitled to
a new trial. We disagree.

    The Tom Bane Civil Rights Act, 1987 Cal. Stat. 4544,
was enacted in 1987 to address hate crimes. The Bane Act
civilly protects individuals from conduct aimed at interfering
with rights that are secured by federal or state law, where the


     1
      We also agree with the district court that the jury’s negative answer
to Question 14 (“At the time Deputy Rose fired his shot, did it appear that
Plaintiff posed an immediate threat of death or serious physical injury to
Deputy Rose?”) was unhelpful to the judge’s legal question of whether
any “reasonable” officer would have understood that the use of deadly
force was at that time proscribed by clearly established Fourth
Amendment excessive force law. As the district court noted, the question
does “not specify from whose perspective it did appear that Reese posed
an immediate threat of death or serious physical injury to Rose.” (Doc.
216 at 11).
              REESE V. COUNTY OF SACRAMENTO                           17

interference is carried out “by threats, intimidation or
coercion.” See Venegas v. County of Los Angeles, 63 Cal.
Rptr. 3d 741, 742 (Cal. Ct. App. 2007). Section 52.1
“provides a cause of action for violations of a plaintiff’s state
or federal civil rights committed by ‘threats, intimidation, or
coercion.’” Chaudhry v. City of Los Angeles, 751 F.3d 1096,
1105 (9th Cir. 2014) (quoting Cal. Civ. Code § 52.1).2
Claims under section 52.1 may be brought against public
officials who are alleged to interfere with protected rights,
and qualified immunity is not available for those claims. See
Venegas, 63 Cal. Rptr. 3d at 753. Reese alleged a Bane Act
violation based upon the same facts as his Fourth Amendment
excessive force claim.

    Before trial, Defendants moved for summary judgment,
arguing that a Bane Act claim required a showing of threats,
intimidation or coercion in addition to the elements required
to establish a violation of the Fourth Amendment. The
district judge who ruled on the motion (who was not the trial
judge) denied the motion based on Chaudhry, which held that
section 52.1 “does not require proof of discriminatory intent”
and “that a successful claim for excessive force under the
Fourth Amendment provides the basis for a successful claim
under § 52.1.” 751 F.3d at 1105.

    Likewise, at the conclusion of trial, the district court
rejected Defendants’ proposed alternative California Civil




    2
      Chaudhry relied on Cameron v. Craig, 713 F.3d 1012, 1022 (9th
Cir. 2013) for the proposition that “the elements of [an] excessive force
claim under § 52.1 are the same as under § 1983.” Id.
18               REESE V. COUNTY OF SACRAMENTO

Jury Instruction [CACI] 30663 on the Bane Act. In re-urging
their position, Defendants argued that Reese’s proposed
instruction eviscerates the requirement in CACI 3066 that
additional elements are necessary to prove a Bane Act claim
because his instruction is “essentially amounting to a
passthrough where there’s a Fourth Amendment violation
saying that if there’s a Fourth Amendment violation, there’s
also a Bane Act violation.” The district court summarily
explained that Defendants’ argument had previously been
rejected on summary judgment and “I’m going to reject it
too.” Therefore, the district court instructed the jury as
follows: “If you determine that Plaintiff prevails on his
Fourth Amendment excessive force claim against Defendant
Brown and/or Defendant Rose, then Plaintiff also prevails on
his Bane Act claim against that Defendant or Defendants.”
The jury found for Reese and against Deputy Rose and the
County on the Bane Act claim.


     3
         The applicable 3066 instruction reads:

            [Plaintiff] claims that [defendant] intentionally
            interfered with [or attempted to interfere with] [his/her]
            civil rights by threats, intimidation, or coercion. To
            establish this claim, [plaintiff] must prove all of the
            following:

                1. That [defendant] acted violently against
                [plaintiff]/ [and][ plaintiff]’s property] [to prevent
                [him/her] from exercising [his/her] right [insert
                right]/to retaliate against [plaintiff] for having
                exercised [his/her] right [insert right]];]

                2. That [plaintiff] was harmed; and

                3. That [defendant]'s conduct was a substantial
                factor in causing [plaintiff]'s harm.
            REESE V. COUNTY OF SACRAMENTO                    19

    In their request for a new trial, Defendants claimed that
the trial court erred when it declined to give their CACI 3066
instruction. In addition to reasserting the arguments made in
their summary judgment motion, Defendants also attempted
to distinguish Chaudhry from this case stating “contrary to
Defendants in this case ‘[t]he City defendants [in Chaudhry]
conceded in their brief . . . that a successful claim for
excessive force under the Fourth Amendment provides the
basis for a successful claim under § 52.1.’” The Defendants
bolstered their position with several district court cases that
held that the Bane Act does not apply to an allegation of
excessive force without a showing that the act was done to
interfere with a separate state or federal constitutional right.
Thus, Defendants asserted that Chaudhry “does not equate to
a correct application of § 52.1” and a new trial with a CACI
3066 instruction was required.

    Convinced by the Defendants’ arguments, the district
court changed its mind. The court concluded that the
Defendants were correct in their argument that their
proposed instruction should have been given. The court
pronounced that because the evidentiary record is complete
on the Bane Act claim, rather than granting a new trial, the
court would issue an amended judgment in favor of
Defendants on the Bane Act claim.

    In explaining its ruling the district court stated that
“California Appellate Court authority reveals: The Bane Act
‘requires a showing of coercion independent from the
coercion inherent in [constitutional violation] itself.’” The
district court found that the evidence in this case did not,
therefore, support this Bane Act element. The court relied on
Shoyoye v. County of Los Angeles, which held that “where
coercion is inherent in the constitutional violation alleged,
20          REESE V. COUNTY OF SACRAMENTO

i.e., an overdetention in County jail, the [Bane Act] statutory
requirement of ‘threats, intimidation, or coercion’ is not met”
and that “[t]he statute requires a showing of coercion
independent from the coercion inherent in the wrongful
detention itself.” 137 Cal. Rptr. 3d 839, 849 (Cal. Ct. App.
2012).

    We find that the district court erred in granting summary
judgment to the Defendants. We note that at the time that the
district court issued its sua sponte summary judgment order,
it observed that “no California Appellate Court decision
addressed whether excessive force alone - ‘the use of
excessive force during an otherwise lawful arrest,’ - is
sufficient to sustain a Bane Act violation[.]” (Doc. 216 at
27). Thus, the district court relied on what it determined were
persuasive decisions, including Shoyoye, that explain that
more is required. The district court’s reliance on Shoyoye is
misplaced, however. First, Shoyoye is distinguishable from
Reese’s excessive force claim because it involved a claim of
wrongful detention. Chaudhry, upon which the prior court
relied when it initially denied Defendants’ summary
judgment motion, is an excessive force case. Moreover,
Chaudhry was decided two years after Shoyoye and since the
Chaudhry decision, district courts have largely interpreted it
to mean that section 52.1 does not require a showing of
“threats, intimidation and coercion” separate from an
underlying constitutional violation. See, e.g., Rodriguez v.
County of Los Angeles, 96 F. Supp. 3d 990, 999 (C.D. Cal.
2014) (distinguishing Shoyoye by interpreting it to apply only
when the constitutional violation is unintentional); Boarman
v. County of Sacramento, 55 F. Supp. 3d 1271, 1287 (E.D.
Cal. 2014) (applying Chaudhry and holding that the
plaintiff’s Bane Act claim based on excessive force survived
summary judgment because the elements of such a claim
            REESE V. COUNTY OF SACRAMENTO                  21

under section 52.1 are the same as under § 1983); Barragan
v. City of Eureka, No. 15-cv-02070-WHO, 2016 WL
4549130, at *8 (N.D. Cal. Sept. 1, 2016) (agreeing with
Chaudhry that the elements of an excessive force claim under
§ 1983 establish the elements of a Bane Act claim and that no
additional elements are required).

    Although there are ample federal district court cases that
interpret Chaudhry in a way that is contrary to the district
court’s decision here, to be sure, the district court is not
bound by those decisions. However, where “there is relevant
precedent from the state’s intermediate appellate court, the
federal court must follow the state intermediate appellate
court decision unless the federal court finds convincing
evidence that the state’s supreme court likely would not
follow it.” Ryman v. Sears, Roebuck & Co., 505 F.3d 993,
994 (9th Cir. 2007) (emphasis omitted). Until recently,
California’s appellate court guidance had not squarely
addressed whether in an excessive force case the Bane Act
requires a separate showing of coercion beyond that inherent
in the use of force. Reese’s supplemental authority however,
provides us with that guidance which we are now bound to
apply.

    In Cornell v. City and County of San Francisco, the
California Court of Appeal recognized that Bane Act claims
are routinely alleged in Section 1983 claims under federal
pendent jurisdiction and that “[t]he Bane Act’s requirement
that interference with rights must be accomplished by
threats[,] intimidation or coercion ‘has been the source of
much debate and confusion.’” 225 Cal. Rptr. 3d 356, 384
(Cal. Ct. App. 2017) (citations omitted). Thus, the court
announced its endeavor to provide clarity. In so doing, the
court examined Shoyoye’s conclusion that the section 52.1
22            REESE V. COUNTY OF SACRAMENTO

claim required a showing of coercion independent of the
coercion inherent in the wrongful detention at issue in that
case. Concluding that Shoyoye was limited to cases involving
mere negligence, the court in Cornell ruled that “[n]othing in
the text of the statute requires that the offending ‘threat,
intimidation or coercion’ be ‘independent’ from the
constitutional violation alleged.” Cornell, 225 Cal. Rptr. 3d
at 383. The court agreed “that the use of excessive force can
be enough to satisfy the ‘threat, intimidation or coercion’
element of Section 52.1.’” Id. at 382.

    Cornell also makes clear, however, that the Bane Act
imposes an additional requirement beyond a finding of a
constitutional violation. Cornell explained that “[p]roperly
read, the statutory phrase ‘threat, intimidation or coercion’
serves as an aggravator justifying the conclusion that the
underlying violation of rights is sufficiently egregious to
warrant enhanced statutory remedies, beyond tort relief.” Id.
at 383. Accordingly, Cornell held that “the egregiousness
required by Section 52.1 is tested by whether the
circumstances indicate the arresting officer had a specific
intent to violate the arrestee’s right to freedom from
unreasonable seizure.” Id. at 384. In so holding, Cornell
adopted the specific intent standard established in Screws v.
United States, 325 U.S. 91 (1945), for assessing criminal
violations of federal civil rights.4 225 Cal. Rptr. 3d at
384–85.


     4
      Cornell acknowledged that Section 52.1 is civil, while the federal
laws to which Screws applies, 18 U.S.C. §§ 241 and 242, are criminal.
225 Cal. Rptr. 3d at 385. But given their structural similarities, Cornell
concluded that, though “the burden of proof is fundamentally different in
these two arenas . . . we see no reason why the applicable mens rea
element ought to differ.” Id.
            REESE V. COUNTY OF SACRAMENTO                    23

    Thus, based on the weight of this new state authority, and
our obligation to consider the California Court of Appeal’s
thorough analysis of its own law, we draw two conclusions as
to the necessary showing for an excessive force claim under
the Bane Act. First, the Bane Act does not require the
“threat, intimidation or coercion” element of the claim to be
transactionally independent from the constitutional violation
alleged. Cornell, 225 Cal. Rptr. 3d at 382–83. Second, the
Bane Act requires a “a specific intent to violate the arrestee’s
right to freedom from unreasonable seizure.” Id. at 384.

    We see no “convincing evidence that the state’s supreme
court likely would not follow” Cornell in reaching these two
conclusions. Ryman, 505 F.3d at 994. As to the requirement
of coercion independent from the constitutional violation,
Cornell correctly notes that the plain language of Section 52.1
gives no indication that the “threat, intimidation, or coercion”
must be independent from the constitutional violation. See
Cornell, 225 Cal. Rptr. 3d at 383. Moreover, in the two
California Supreme Court cases to apply Section 52.1 in the
Fourth Amendment context, neither gave any indication of an
independent coercion requirement. In Venegas v. County of
Los Angeles, the California Supreme Court, in holding that a
Section 52.1 plaintiff need not be a member of a protected
class, found that plaintiffs had “adequately stated a cause of
action under section 52.1” where they alleged warrantless,
unconsented searches and unlawful detention. 87 P.3d 1,
3–4, 14 (Cal. 2004). In Jones v. Kmart Corp., the court held
that the plaintiff could not bring a Fourth Amendment
excessive force claim against a private security guard because
the lack of a state actor meant there was no constitutional
violation, but did not suggest that some coercion independent
24            REESE V. COUNTY OF SACRAMENTO

of the alleged excessive force was required. 949 P.2d 941,
942, 944 (Cal 2004).5

    Similarly, the specific intent requirement articulated in
Cornell is consistent with the language of Section 52.1, which
requires interference with rights by “threat, intimidation or
coercion,” words which connote an element of intent. This is
also reflected in California’s model jury instruction, CACI
3066, which characterizes a Bane Act claim as one by the
plaintiff that the defendant “intentionally interfered with [or
attempted to interfere with] [his/her] civil rights by threats,
intimidation, or coercion.” CACI 3066 (emphasis added); see
also Cornell, 225 Cal. Rptr. 3d at 387 (approving use of
CACI 3066 because it “properly focused the jury on
intentional violation of Cornell’s right to be free from
unreasonable seizure”). As above, we observe that the Fourth
Amendment claims asserted in Venegas and Jones are not
inconsistent with Cornell’s approach.

    Though we have previously stated that “the elements of
the excessive force claim under § 52.1 are the same as under
§ 1983,” Chaudhry, 751 F.3d at 1105 (quoting Cameron,
713 F.3d at 1022), we do not read those cases as contradicting
the intent requirement articulated in Cornell. In Cameron, we
noted that the plaintiff “assert[ed] no California right
different from the rights guaranteed under the Fourth
Amendment,” 713 F.3d at 1022, and so concluded that the


     5
      To the extent that we previously followed Shoyoye in concluding
that “a plaintiff in a search-and-seizure case must allege threats or
coercion beyond the coercion inherent in a detention or search,” Lyall v.
City of Los Angeles, 807 F.3d 1178, 1196 (9th Cir. 2015), we are now
guided by Cornell to interpret Shoyoye’s holding as limited to cases
involving mere negligence, see Cornell, 225 Cal. Rptr. 3d at 381–82.
               REESE V. COUNTY OF SACRAMENTO                             25

elements of the excessive force claim were the same, citing
our prior observation in Reynolds v. County of San Diego that
“[s]ection 52.1 does not provide any substantive protections;
instead, it enables individuals to sue for damages as a result
of constitutional violations.” Cameron, 713 F.3d at 1022
(quoting Reynolds, 84 F.3d 1162, 1170 (9th Cir. 1996),
overruled on other grounds, Acri v. Varian Assocs., Inc., 114
F.3d 999, 1000 (9th Cir. 1997)). Thus, Cameron was
concerned with the nature of the elements of the predicate
constitutional violation asserted under § 1983 and the Bane
Act, but did not address whether the Bane Act required some
showing of intent in addition to showing the constitutional
violation. Chaudhry had no occasion to address the issue
either, as the defendants there conceded that the elements
were the same. 751 F.3d at 1105.

     Applying these principles here, we conclude that the
district court’s jury instructions were erroneous. The district
court instructed the jury that if Reese prevailed on his Fourth
Amendment claim, then he also prevailed on his Bane Act
claim. But the jury did not consider Deputy Rose’s intent in
its finding that he violated Reese’s Fourth Amendment rights.
 See Graham v. Connor, 490 U.S. 386, 397 (1989) (“[T]he
‘reasonableness’ inquiry in an excessive force case is . . .
whether the officers’ actions are ‘objectively reasonable’ in
light of the facts and circumstances confronting them, without
regard to their underlying intent or motivation.”). As we have
explained in applying the Screws specific intent standard to
an excessive force violation of 18 U.S.C. § 242,6 “a mere



    6
      In relevant part, 18 U.S.C. § 242 applies to “Whoever, under color
of any law, statute, ordinance, regulation, or custom, willfully subjects any
person in any State, Territory, Commonwealth, Possession, or District to
26           REESE V. COUNTY OF SACRAMENTO

intention to use force that the jury ultimately finds
unreasonable—that is, general criminal intent—is
insufficient.” United States v. Reese, 2 F.3d 870, 885 (9th
Cir. 1993). Rather, the jury must find that the defendants
“intended not only the force, but its unreasonableness, its
character as ‘more than necessary under the circumstances.’”
Id. But it is not necessary for the defendants to have been
“thinking in constitutional or legal terms at the time of the
incidents, because a reckless disregard for a person’s
constitutional rights is evidence of a specific intent to deprive
that person of those rights.” Id. Because the district court’s
Bane Act jury instruction did not require this inquiry into
Deputy Rose’s intent, it was incorrect. The district court’s
post-trial order correctly recognized that Defendants’
proposed jury instruction, CACI 3066, should have been
given, see Cornell, 225 Cal. Rptr. at 386–87.

    In addition to giving an incorrect jury instruction, the
district court erred when it issued its post-trial grant of
summary judgment to Defendants on the Bane Act claim.
The district court’s decision was based on an erroneous
conclusion that the Bane Act required coercion independent
from the constitutional violation. Although there was no
evidence of coercion independent from Deputy Rose’s use of
objectively unreasonable force, we cannot conclude from the
record that, taking the evidence in the light most favorable to
Reese, no reasonable jury could find that Deputy Rose had a
specific intent to violate Reese’s Fourth Amendment rights.
See Nozzi v. Housing Auth. of City of L.A., 806 F.3d 1178,




the deprivation of any rights, privileges, or immunities secured or
protected by the Constitution or laws of the United States. . . .”
                REESE V. COUNTY OF SACRAMENTO                           27

1199–200 (9th Cir. 2015). The decision is therefore reversed
and Reese’s Bane Act claim is remanded for a new trial.7

II. Defendants’ Cross-Appeals

    A. Heck v. Humphrey, 512 U.S. 477 (1994) does not
       bar Reese’s claims.

    Prior to trial, Reese entered a “no contest” plea to a
misdemeanor charge that he violated California Penal Code
§ 417(a)(1) for drawing or exhibiting a deadly weapon, other
than a firearm, “in a rude, angry, or threatening manner,” thus
disposing of his original charge of Assault with a Deadly
Weapon.8 Under Heck v. Humphrey, 512 U.S. 477, 487
(1994), “[w]hen a plaintiff who has been convicted of a crime
under state law seeks damages in a § 1983 suit, ‘the district
court must consider whether a judgment in favor of the
plaintiff would necessarily imply the invalidity of his
conviction or sentence.’” Hooper v. County of San Diego,
629 F.3d 1127, 1130 (9th Cir. 2011) (quoting Heck, 512 U.S.
at 487). If it would, the civil action is barred. Id.; see also
Yount v. City of Sacramento, 183 P.3d 471, 484 (Cal 2008)
(extending Heck to California state law claims). Defendants
argue that Reese’s misdemeanor conviction bars his claims


     7
       The jury also found the deputy and County liable for battery under
state law, and the damages award was therefore unaffected by the district
court’s decision to grant summary judgment on the Bane Act claim, other
than a reduction of $21,175.00 for past medical expenses that had already
been paid on Reese’s behalf under the County Indigent Program. Because
we do not reinstate the jury verdict on Reese’s Bane Act claim, we do not
reconsider the district court’s denial of his motion for attorney’s fees and
costs.
    8
        California Penal Code § 245(c).
28             REESE V. COUNTY OF SACRAMENTO

because the claims necessarily imply the invalidity of his
conviction.

     Reese counters that Defendants did not produce evidence
at trial to show the factual basis for Reese’s no contest plea.
Defendants rely upon Reese’s trial testimony, which they
characterize as stating that he “displayed/brandished the knife
when he opened the door, but denied it was angry or
threatening, and could not say whether the manner of display
was ‘not polite.’” Reese points out, however, that there are
other instances of conduct that could have formed the factual
basis for his misdemeanor conviction including evidence that
he exhibited a knife to Brittany Shurtleff in an angry or
threatening manner before the Deputies arrived. The district
court found that even if Reese’s misdemeanor conviction was
based on a finding of “rudeness,” his trial testimony did not
invalidate that conviction finding.9 In addition, the district
court found that Defendants failed to show that the victim or
victims of the conviction were any of the officers involved in
Reese’s action.

    We agree. Defendants have not demonstrated that
Reese’s claims in this action are barred by Heck. Defendants
have identified nothing in the record that shows the specific
factual basis for Reese’s misdemeanor conviction. Without
such information, this Court cannot determine that Reese’s
claim of excessive force in this case would call into question
the validity of his misdemeanor weapon conviction. See
Smith, 394 F.3d at 698–99. The district court’s ruling is
affirmed.


     9
       Contrary to Defendants’ assertions, that Reese denied raising the
knife to Shurtleff in his civil trial testimony does not necessarily mean that
this was not the basis for his criminal conviction.
            REESE V. COUNTY OF SACRAMENTO                   29

   B. The jury’s award of $150,000.00 for future non-
      economic loss was supported by substantial
      evidence.

     Defendants challenge the district court’s ruling that
upheld the jury’s award of $150,000.00 to Reese for future
non-economic loss. They contend there was no evidence at
trial of future non-economic losses. They argue that “[a]t
most, the jury was shown a visible physical scar, but there
was no testimony that future care was needed, no testimony
that the scar caused any sort of anxiety, mental disturbance or
other non-economic loss.”

    The district court cited two district court cases and a
California Supreme Court case in determining that “[a]wards
for non-economic damages, which included pain and
suffering, can be supported by a finding of permanent
scarring.” The district court then found that “[i]n light of
Reese’s scarring, an inference can reasonably be drawn that
he will continue to endure suffering” and that Defendants
failed to show this portion of the judgment should be
amended.

    “A jury’s verdict, including a damages award, must be
upheld if supported by ‘substantial evidence.’” Freitag v.
Ayers, 468 F.3d 528, 537 (9th Cir. 2006), cert. denied,
549 U.S. 1323 (2007). “Substantial evidence is such relevant
evidence as reasonable minds might accept as adequate to
support a conclusion even if it is possible to draw two
inconsistent conclusions from the evidence.” Landes Const.
Co. v. Royal Bank of Canada, 833 F.2d 1365, 1371 (9th Cir.
1987). Substantial deference is afforded to a jury’s finding of
the appropriate amount of damages. United States v. CB &
I Constructors, Inc., 685 F.3d 827, 839 (9th Cir. 2012).
30           REESE V. COUNTY OF SACRAMENTO

    Reese showed the jury multiple scars on his body that
resulted from the surgeries he underwent after being shot.
Even if the only evidence in support of Reese’s non-
economic damages was his multiple scars and any inferences
drawn therefrom, Defendants have not demonstrated it was
error for the district court to conclude that was sufficient to
uphold the amount awarded for non-economic damages. The
district court’s decision on this issue is affirmed.

     C. Any error in the jury instruction on Reese’s
        Fourth Amendment claim that authorized liability
        if “Defendant shot at and/or shot the plaintiff” was
        harmless.

    Defendants next contend the district court, over their
objection, gave an erroneous jury instruction providing that
a Fourth Amendment violation could be shown by proving
that one of the Defendants “shot at and/or shot the plaintiff,”
among other elements. Defendants argue “[t]his constituted
prejudicial error by skewing the burden of proof at trial.”
Defendants argue that merely shooting at someone is
insufficient to constitute a seizure.

    The Court need not decide whether the instruction was
erroneous because any error was rendered harmless by the
jury’s verdict. In their answers to the special interrogatories,
the jury found that the round fired from Deputy Brown’s rifle
did not hit Reese but the round fired by Deputy Rose did.
Correspondingly, the jury found a Fourth Amendment
violation by Deputy Rose but not Deputy Brown. Thus, to the
extent Deputy Brown could have been found liable under the
Fourth Amendment for merely shooting at Reese rather than
shooting and hitting him, the jury’s findings prevented any
harm from the potentially erroneous instruction. Thus, even
             REESE V. COUNTY OF SACRAMENTO                    31

if the district court erred in giving that instruction, the error
was harmless.

    D. The district court did not abuse its discretion when
       it failed to exclude certain testimony by Reese’s
       expert, and certain testimony by Defendants’
       expert elicited on cross-examination.

    Defendants next argue the district court abused its
discretion by failing to exclude testimony by Reese’s expert
that a particular set of circumstances represented a “don’t
shoot scenario.” The district court overruled Defendants’
objection at trial that the question presented an incomplete
hypothetical and invaded the province of the jury. Citing no
legal authority, Defendants argue the evidence should have
been excluded.

    “We review the district court’s evidentiary decisions for
abuse of discretion, and the appellant is . . . required to
establish that the error was prejudicial.” Ambat v. City &
County of San Francisco, 757 F.3d 1017, 1032 (9th Cir.
2014) (alteration in original) (quoting Allstate Ins. Co. v.
Herron, 634 F.3d 1101, 1110 (9th Cir. 2011)).

     As to the argument that the hypothetical was incomplete
in that it referred to Reese being unarmed after he backed up
into the apartment, the jury was not required to accept the
described scenario as true and, in fact, made a finding that
Deputy Rose did not see Reese’s hands when he shot him. As
to the argument that the expert’s answer invaded the province
of the jury in that it addressed the ultimate issue, Defendants
have not shown prejudicial error. As a general rule, “[a]n
opinion is not objectionable just because it embraces an
32          REESE V. COUNTY OF SACRAMENTO

ultimate issue.” Fed. R. Evid. 704(a). The district court’s
ruling on this issue is therefore affirmed.

    Defendants also challenge the district judge’s failure to
sustain objections to questions asked of Defendants’ expert
by Reese’s counsel. The questions addressed scenarios
pertaining to whether Deputy Rose saw Reese’s hands when
he shot him. Again, given the jury’s finding on this issue,
Defendants have failed to show prejudicial error, as the
district court determined. The district court’s ruling is
affirmed.

     E. The district court did not err in excluding the
        deposition testimony of a defense witness who did
        not appear in court to testify.

    Next, Defendants argue the district court erred in
excluding from the trial deposition testimony of Brittany
Shurtleff, a witness who Defendants claim was “unavailable”
under the Federal Rules of Evidence. Defendants contend
they successfully served a subpoena on the witness and made
reasonable, good faith efforts to procure her presence.

    The district court determined that defense counsel, despite
being aware the witness did not intend to appear in court,
failed to make additional reasonable efforts in the time
leading up to trial to ensure the witness’s appearance in court.
The district court therefore concluded there was no basis “to
justify finding her unavailable under Federal Rule of
Evidence 804(a)(5).”

    Likewise, Defendants here simply assert that counsel
made reasonable, good faith efforts to procure the witness’s
presence but they fail to explain what those efforts were.
            REESE V. COUNTY OF SACRAMENTO                   33

Absent any evidence of actual reasonable, good faith efforts
to ensure the witness’s appearance, Defendants have not
demonstrated that the district court abused its discretion. The
district court’s ruling is therefore affirmed.

    AFFIRMED IN PART, and REVERSED AND
REMANDED IN PART. Each party shall pay its own
costs on appeal.
