                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


CAROLE KRECHMAN , Individually,           No. 12-55347
and as the Personal Representative
of Robert Albert Appel, deceased,           D.C. No.
                  Plaintiff-Appellant,   2:10-cv-08705-
                                           ODW-DTB
                  v.

COUNTY OF RIVERSIDE , a                     OPINION
Municipality; ROBERT GARCIA ,
Deputy, ID# 4504; MARTIN ALFARO ,
Deputy, ID# 3485; SEAN DUSEK,
Deputy, ID# 3495; EDWARD
CHACON , Deputy, ID# 4505,
              Defendants-Appellees.


      Appeal from the United States District Court
          for the Central District of California
       Otis D. Wright II, District Judge, Presiding

                 Argued and Submitted
           June 6, 2013—Pasadena, California

                   Filed July 25, 2013
2            KRECHMAN V . COUNTY OF RIVERSIDE

         Before: Ronald M. Gould, N. Randy Smith,
         and Jacqueline H. Nguyen, Circuit Judges.

                  Opinion by Judge Gould;
               Concurrence by Judge N.R. Smith


                           SUMMARY*


                            Civil Rights

    The panel reversed the district court’s Fed. R. Civ. P.
50(a) judgment as a matter of law in favor of defendants
following a jury trial in this action alleging that police
officers used excessive deadly force when they attempted to
take custody of plaintiff’s adult son.

    The panel held that the district judge improperly weighed
the evidence in determining that defendants’ conduct was not
a substantial factor in the death. The panel stated that the
record suggested that the judge’s personal experience and not
the testimony viewed in the light most favorable to plaintiff
led the court to conclude that defendants did not use
excessive force. Because the standard used by the district
court was not correct, the panel reversed and remanded the
case for a new trial.

    The panel declined to reassign the case after determining
that, in spite of Judge Wright’s error of law, the panel had no


  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
           KRECHMAN V . COUNTY OF RIVERSIDE                  3

reason to believe that he would be unable fairly and correctly
to apply the Rule 50(a) standard on remand.

    Concurring, Judge N.R. Smith stated that although he
agreed that it was unnecessary to reach plaintiff’s claim that
the district court’s conduct rose to a level that independently
warranted a new trial, it certainly approached that line.


                         COUNSEL

Dale K. Galipo (argued) and Thomas C. Seabaugh, Law
Offices of Dale K. Galipo, Woodland Hills, California, for
Plaintiff-Appellant.

Bruce E. Disenhouse (argued), Kinkle, Rodiger and Spriggs,
Riverside, California, for Defendants-Appellees.


                         OPINION

GOULD, Circuit Judge:

    Carole Krechman, individually and as the personal
representative of her son, Robert Albert Appel, brought a
42 U.S.C. § 1983 action for damages resulting from her son’s
death.      Krechman contends that police officers
(“Defendants”) used excessive force, resulting in Appel’s
death, when they responded to a 911 hang-up call and found
Appel sitting unarmed in his driveway and tried to take
custody of him. After a jury trial, the district court granted
judgment as a matter of law to Defendants under Federal Rule
of Civil Procedure 50(a). Krechman appeals, requesting
reversal of that decision and a new trial, preferably before a
4          KRECHMAN V . COUNTY OF RIVERSIDE

different judge. In the alternative, she asserts (1) that the
district court made erroneous trial rulings that cumulatively
prejudiced her substantial rights and led to the entry of
judgment as a matter of law against her and (2) that the
district court violated her due-process rights by engaging in
conduct that amounted to an unconstitutional appearance of
bias. We have jurisdiction under 28 U.S.C. § 1291, and we
reverse.

                              I

     Just before 10:00 p.m. on a spring night, dispatchers
received a 911 “hang up” call. The call was traced to a home
in a Palm Desert gated community, and the dispatcher
assigned Robert Garcia, an on-duty police officer, to inspect
the location. When Garcia arrived at the front gate, a security
guard told him that the home of interest was occupied by an
attorney named Robert Appel and that just a few days prior,
Appel was pepper sprayed by the police. Garcia entered the
neighborhood and parked his patrol car down the street from
the home. Stepping out of the car, Garcia heard yelling. He
called for backup. Approaching the house, he noticed a man
sitting in the driveway wearing nothing but sweat pants. The
man stood up when he saw Garcia, ran at him, and eventually
sat back down. Visually scanning the man’s waistband for
bulges that might be weapons, Garcia saw nothing of danger.
The man screamed, “Why did you do this to me, Tina?” and
other strange phrases, and then ran to hide behind a two-foot
bush in the yard.

    Garcia believed that the man was delusional and in need
of a temporary hold for people with potential mental illness.
So Garcia approached, readying his pepper spray. Using the
name “Robert,” Garcia coaxed the man out from behind the
           KRECHMAN V . COUNTY OF RIVERSIDE                 5

bush and got him to sit down “Indian style” on the street
facing the house.

    Garcia then told Appel that he was not being arrested but
that he was being detained so that the police could figure out
what was going on. About this time, Officer Chacon arrived.
Garcia then asked Appel to put his hands behind his back for
handcuffing, and Appel replied “okay, okay, okay.” Appel
then let Garcia handcuff his left hand without incident.

    But, as Appel was moving his right hand behind his back,
something changed. Suddenly Appel’s melancholy turned to
anger, and Appel began to resist the officers’ attempts to
handcuff his right arm. He shouted, “no, no, no, not again,
not again, no, no” and thrashed about.

    Garcia then sprawled his body over Appel’s upper body
while Chacon grabbed Appel’s legs. The two pulled Appel
onto his left side and Garcia tried to perform a carotid
restraint to render Appel unconscious. But Appel tried to bite
Garcia’s arm, so Garcia struck Appel’s face three times with
“hammer strikes.” Appel was screaming and yelling
throughout.

    During this tussle, Garcia had radioed that things had
become “physical,” and Officers Dusek and Alfaro, who were
already on their way, arrived at the scene. Alfaro shouted at
Garcia to “get the fuck out of the way.” Then Alfaro and
Dusek each grabbed one of Appel’s arms and pulled him to
the chest-down position. Garcia was now holding Appel’s
head, and Chacon was positioned on Appel’s legs. Alfaro
and Dusek both used techniques intended to cause pain and
immobilize Appel. During this time Alfaro’s knee was on
Appel’s back exerting an estimated 105 pounds of pressure,
6            KRECHMAN V . COUNTY OF RIVERSIDE

and Dusek applied his “right knee to [Appel’s] right tricep”
and then to the “back of [Appel’s] right shoulder in the area
of the shoulder blade.” This prevented Appel from lifting his
upper body up, allowing the officers to cuff Appel’s right
arm. Appel continued to scream and “violently jerk[ed] his
head and shoulders upwards.”

    The officers’ accounts of what happened next are not
entirely consistent. But the testimony in substance confirmed
this: Even after handcuffing was complete, Appel was
“pumping his fists while they were handcuffed behind his
back” and his “muscles were rigid, meaning he was flexing
his arm muscles, and he was repeatedly kicking his—his feet
and toes on the asphalt.” Alfaro kept his knee on Appel’s
upper back “when he was moving and attempting to get up.”
Chacon placed a knee on Appel’s left lower back to keep
Appel down. And Dusek also had his knee on Appel’s
shoulder blade.

     When Appel stopped moving, Alfaro assumed he was
“playing possum” so Alfaro remained on Appel’s back for a
bit.1 Then some of the officers grew concerned; Chacon tried
to check Appel’s pulse, but was told by Alfaro to get away
from Appel’s face. The officers turned Appel face-up and
noticed that his eyes and mouth were open. They then moved


   1
     Alfaro’s testimony was contradictory about whether he remained on
Appel’s back after it was apparent that Appel was unresponsive. But in
considering whether judgment as a matter of law was properly granted, we
must “view the evidence in the light most favorable to the nonmoving
party . . . and draw all reasonable inferences in that party’s favor.” EEOC
v. Go Daddy Software, Inc., 581 F.3d 951, 961 (9th Cir. 2009) (quoting
Josephs v. Pac. Bell, 443 F.3d 1050, 1062 (9th Cir. 2006)). So we
presume that Alfaro remained on Appel’s back even after Appel stopped
moving.
             KRECHMAN V . COUNTY OF RIVERSIDE                        7

Appel “up alongside of the curb on the street” and started to
monitor his vital signs. The officers testified that Appel was
breathing at this time, but Appel was unresponsive. After
Appel “arched his back considerably and looked
uncomfortable,” the officers laid him on his back in the grass
on an elevated yard. At 10:43 p.m., the officers called the
paramedics. While waiting for them, the officers checked
Appel’s pulse, but CPR was not performed and the handcuffs
were not removed. Sadly, Appel did not have a pulse and
was not breathing when the paramedics arrived at 10:51 p.m.
Appel was rushed to the hospital, where he was eventually
pronounced dead.

    In November 2010, Appel’s mother and stepfather filed
this action in the district court, seeking compensatory and
punitive damages under 42 U.S.C. § 1983 to redress various
constitutional violations, including violations of Appel’s
Fourth and Fourteenth Amendment rights. They also brought
state-law claims, including negligence. The district court
held a six-day jury trial. All four of the involved officers
testified. So did a responding paramedic, the coroner, an
expert witness on police practices, several expert physicians,
and Carole Krechman.2

    At trial, Defendants presented a theory that Appel died
suddenly of natural causes, specifically kidney failure that
caused cardiac arrhythmia, unrelated to the altercation with
the police. An emergency physician named Dr. Gary Vilke
testified in support of this theory. He said that Appel’s blood-


  2
    Before the close of the case, Sheldon Krechman and the Riverside
Sheriff’s Department were dismissed as parties, leaving only the § 1983
claims arising from violations of the Fourth Amendment and a
supplemental negligence claim.
8          KRECHMAN V . COUNTY OF RIVERSIDE

chemistry panel at the emergency room showed a potassium
level of more than 10 where the “normal range is between 3.5
7and 5 or 5.1,” and he noted that potassium levels higher than
6 can start to cause electrical activity changes and stress the
heart. Dr. Vilke further said that Appel had elevated
creatinine and magnesium levels, “which means his kidneys
weren’t working.”

    Krechman, on the other hand, contended that Appel’s
death was caused by excessive force. The coroner, Dr. Mark
Scott McCormick, who examined Appel’s body testified that
he found no evidence of drugs or alcohol in Appel’s system;
that there were several blunt-impact injuries on Appel’s torso,
head, arms, and legs; that there was evidence of bleeding in
an internal muscle of Appel’s ear; and that Appel’s heart was
enlarged, which put him at a higher risk for cardiac
arrhythmia. He also testified that he believed that “[t]he
confrontation itself [was] a stressor that contributed to the
arrhythmia” that caused Appel’s death so he classified the
death as a homicide.

    Another expert for Krechman, Dr. Ronald O’Halloran,
testified that there are two ways the encounter with police
could have led to Appel’s death: First, depending on what the
jury believed the facts to be, the officers’ actions could have
caused “restraint asphyxia, compressing the chest for too long
with too much weight.” Second, the altercation could have
caused an “adrenaline increase causing a cardiac arrhythmia
from the stress of the exertion and the fear and pain
associated with the restraint process.” He described restraint
asphyxia more specifically as occurring when “a person is in
a prone position and doesn’t have the use of their arms or legs
to remove weight from their back, [and] weight on the back
can compress the chest enough that they can’t breathe
           KRECHMAN V . COUNTY OF RIVERSIDE                 9

adequately to maintain blood oxygen saturation” or can’t get
enough blood pumped through the heart.

    After the close of Krechman’s case-in-chief, Defendants
moved for judgment as a matter of law. The district court
held a hearing on the motion after the close of evidence but
deferred decision on the motion and submitted the case to the
jury. After the jury hung, the district court granted the
motion with respect to all of the remaining claims. Krechman
filed a timely appeal.

                             II

    We review de novo a district court’s grant of judgment as
a matter of law. Electro Source, Inc. v. United Parcel Serv.,
Inc., 95 F.3d 837, 838 (9th Cir. 1996). In so doing, we “view
the evidence in the light most favorable to the nonmoving
party . . . and draw all reasonable inferences in that party’s
favor.” EEOC v. Go Daddy Software, Inc., 581 F.3d 951, 961
(9th Cir. 2009) (quoting Josephs v. Pac. Bell, 443 F.3d 1050,
1062 (9th Cir. 2006)).

                             III

    We first address Krechman’s legal claims to see if
reversal is warranted. We then consider whether the case
should be reassigned to a different district judge as Krechman
requests.

                              A

    Krechman first contends that the district court erred in
granting Defendants’ motion for judgment as a matter of law
by incorrectly applying the required legal standard.
10         KRECHMAN V . COUNTY OF RIVERSIDE

    A district court can grant a Rule 50(a) motion for
judgment as a matter of law only if “there is no legally
sufficient basis for a reasonable jury to find for that party on
that issue.” Jorgensen v. Cassiday, 320 F.3d 906, 917 (9th
Cir. 2003) (quoting Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 149 (2000)). “[I]n entertaining a motion
for judgment as a matter of law, the court . . . may not make
credibility determinations or weigh the evidence.” Go Daddy
Software, Inc., 581 F.3d at 961 (alteration in original)
(quoting Reeves, 530 U.S. at 150). And although taking a
motion under submission and ruling on it after the jury
returns a verdict is proper practice, see Fed. R. Civ. P. 50(b)
advisory committee’s note, the court “may not substitute its
view of the evidence for that of the jury.” Winarto v. Toshiba
Am. Elecs. Components, Inc., 274 F.3d 1276, 1283 (9th Cir.
2001) (quoting Johnson v. Paradise Valley Unified Sch. Dist.,
251 F.3d 1222, 1227 (9th Cir. 2001)).

    Specifically, Krechman contends that the district judge
improperly weighed evidence favorable to Krechman against
other evidence presented at trial and failed to draw all
reasonable inferences in Krechman’s favor. We agree.

    The district court based its grant of judgment as a matter
of law on its conclusion that Defendants’ conduct was not a
substantial factor in Appel’s death, that neither the pre- nor
post-handcuffing conduct of the Defendants violated Appel’s
constitutional rights, and that no negligence occurred.
Because a lack of causation potentially would defeat both
claims, we start with that issue before considering whether
the judge erred in determining that Defendants did not violate
Appel’s constitutional rights or commit negligence.
           KRECHMAN V . COUNTY OF RIVERSIDE                   11

                               1

    The record reflects that the district judge weighed the
evidence in determining that Defendants’ conduct was not a
substantial factor in Appel’s death. During the hearing on the
Rule 50(a) motion held at the close of evidence, the court
stated:

        I don’t even believe Dr. McCormick
        graduated from medical school. The first
        thing out of that man’s mouth was in all of the
        autopsies that he has performed where the
        deceased died of a heart attack, lo and behold,
        there were high levels of potassium.
        Therefore, he has concluded that dying of a
        heart attack increases the potassium level in
        your blood. I almost fell out of my chair.

The court went on to reiterate that the coroner, Dr.
McCormick, lacked credibility asking, “[a]gain, did
McCormick really go to medical school?” and later stating
that Dr. McCormick “doesn’t understand about the electrical
impulses that actually trigger the heartbeats—all right—that
control the heart rhythm.” There is also little doubt that this
disbelief affected the court’s decision to grant judgment as a
matter of law because when it announced its decision on the
motion, the court reiterated that it “didn’t think too much of
the coroner” and in fact “thought very little of the coroner.”

     The district court expressed similar incredulity at the
testimony of Krechman’s other medical expert. During the
initial Rule 50(a) hearing the court asked, “I can’t take the lab
results as true? I have to take as true a guy that you brought
down here from Ventura and paid a fortune? That is what I
12         KRECHMAN V . COUNTY OF RIVERSIDE

have to take as true?” We confirm today that, when assessing
a Rule 50 motion, the answer to that question is “yes” if the
expert testified for the nonmoving party.

    Defendants contend that it was proper for the court to
“categorically refuse[] to accept any expert’s testimony, and
instead, rel[y] solely on [Appel’s] lab results.” But experts
are used when an “intelligent evaluation of facts is . . .
difficult or impossible without the application of some
scientific, technical, or other specialized knowledge.” See
Fed. R. Evid. 702 advisory committee’s note. Having
admitted the testimony of Krechman’s experts, the judge was
bound to take their testimony as true for the purposes of
considering whether to grant judgment as a matter of law.
The record shows that he did not do this but instead took the
Defendants’ expert testimony as true. This is shown by the
court’s comment that the defense expert “pretty much just
blew away these two pathologists [called by Ms. Krechman],”
and that “[t]his gentleman clearly was in trouble. I personally
never heard of blood pressure readings as high as this
gentleman’s blood pressure was.”

                              2

    Although the district court erred in concluding as a matter
of law that Defendants’ conduct was not a substantial factor
in Appel’s death, dismissal of the § 1983 claim was still
proper if the district court correctly concluded as a matter of
law that the pre- and post-handcuffing conduct of the
Defendants did not violate Appel’s constitutional rights.
Likewise, dismissal of the negligence claim was proper if the
district court correctly concluded that no negligence occurred.
            KRECHMAN V . COUNTY OF RIVERSIDE                   13

    But we hold that the district court’s analysis of these
elements was also infected by impermissible credibility
assessments. When deciding the Rule 50(a) motion, the
district court stated that “once the first handcuff went on,
[Appel] was armed” because a “loose handcuff is dangerous.”
The court shed light on this conclusion by stating, “As far as
I am concerned, having been there, [a loose handcuff] is a
weapon.” He also stated, “We have got a fight. I don’t
know, you ever been in a street fight? Okay. I have been
there. I have done this. They are in a fight.” The record
suggests that the judge’s personal experience and not the
testimony viewed in the light most favorable to Krechman led
the court to conclude that “everything that the officers did . . .
while attempting to get that other hand handcuffed was not
excessive and was clearly warranted by the circumstances.”
This led to the grant of Defendants’ motion for judgment as
a matter of law. Because the standard used by the district
court was not correct, we reverse and remand the case for a
new trial.

                                B

    Krechman next contends that (1) the district court made
erroneous trial rulings that cumulatively prejudiced her
substantial rights and led to judgment as a matter of law and
(2) the district court violated her due-process rights by
engaging in conduct that amounted to an unconstitutional
appearance of bias. But because we hold that the district
court improperly applied the legal standard when granting
Defendants’ motion for judgment as a matter of law, we do
not reach these claims. See Hiler v. Astrue, 687 F.3d 1208,
1212 (9th Cir. 2012) (declining to reach a potential alternative
ground for remand).
14         KRECHMAN V . COUNTY OF RIVERSIDE

                             IV

    We next address Krechman’s request for reassignment.
We can reassign a case to a different district judge under our
supervisory powers in “unusual circumstances.” See United
States v. Wolf Child, 699 F.3d 1082, 1102 (9th Cir. 2012); see
also United Nat’l Ins. Co. v. R&D Latex Corp., 242 F.3d
1102, 1118 (9th Cir. 2001). This standard does not require a
showing of “actual bias on the part of the judge who first
heard the case.” Mendez v. Cnty. of San Bernardino,
540 F.3d 1109, 1133 (9th Cir. 2008) (internal quotation marks
and quoting source omitted). In considering whether to
reassign because of “unusual circumstances,” we consider the
following three factors: “(1) whether the original judge would
reasonably be expected upon remand to have substantial
difficulty in putting out of his or her mind previously-
expressed views or findings determined to be erroneous or
based on evidence that must be rejected, (2) whether
reassignment is advisable to preserve the appearance of
justice, and (3) whether reassignment would entail waste and
duplication out of proportion to any gain in preserving the
appearance of fairness.” United States v. Jacobs, 855 F.2d
652, 656 (9th Cir. 1988) (quoting Cintron v. Union Pac. R.R.
Co., 813 F.2d 917, 921 (9th Cir. 1987)). The first two factors
are equally important and a finding of either is sufficient to
support reassignment on remand. Id. (citing United States v.
Sears, Roebuck & Co., 785 F.2d 777, 780 (9th Cir. 1986)).

    Reassignment, however, is reserved for “rare and
extraordinary circumstances,” see United Nat’l Ins. Co.,
242 F.3d at 1118 (quoting Air-Sea Forwarders, Inc. v. Air
Asia Co., Ltd., 880 F.2d 176, 191 (9th Cir. 1989)), and we
have previously held that erroneously granting a defendant’s
Rule 50 motion is not enough to support reassignment where
             KRECHMAN V . COUNTY OF RIVERSIDE                         15

a judge “treated the parties evenhandedly and with respect,”
McSherry v. City of Long Beach, 423 F.3d 1015, 1023 (9th
Cir. 2005). Although we agree with Krechman that Judge
Wright made several off-color comments that may not have
been well-received, the record does not suggest that he was
unfair. See California v. Montrose Chem. Corp., 104 F.3d
1507, 1521–22 (9th Cir. 1997) (deciding not to reassign
where a judge referred to environmental scientists in a
CERCLA case as “pointy heads” and “so-called experts”
among other things because his verbal excesses “had no
affect on his substantive decisions”). Despite his error of law
in the prior hearing now under appeal, we have no reason to
believe that Judge Wright would be unable fairly and
correctly to apply the Rule 50(a) standard on remand. For
that reason, we decline to reassign the case.

    REVERSED AND REMANDED.



N.R. SMITH, Circuit Judge, concurring:

     I agree with the majority’s opinion in this case. I write
separately to address Krechman’s judicial bias claim.1 I agree
it is unnecessary to reach this claim, given our reversal of the

 1
   Though Krechman claims to bring her judicial bias claim under the due
process clause, the substance of her argument fits more appropriately as
a freestanding judicial misconduct claim. E.g., Shad v. Dean Witter
Reynolds, Inc., 799 F.2d 525, 531 (9th Cir. 1986); Kennedy v. L.A. Police
Dep’t, 901 F.2d 702, 709 (9th Cir. 1990), overruled on other grounds by
Hunter v. Bryant, 502 U.S. 224 (1991) (per curiam). She does not allege
circumstances existed in this trial like those in which we have recognized
a judge’s potential bias can violate due process. See Hurles v. Ryan,
706 F.3d 1021, 1037 (9th Cir. 2013).
16          KRECHMAN V . COUNTY OF RIVERSIDE

district court’s Rule 50 decision. However, Krechman’s
arguments identify conduct that is worrisome enough that it
warrants some mention.

    “A judge’s participation justifies a new trial . . . if the
record shows actual bias or leaves an abiding impression that
the jury perceived an appearance of advocacy or partiality.”
United States v. Laurins, 857 F.2d 529, 537 (9th Cir. 1988).
Here, the district judge conducted the trial in a way that could
evidence that he was biased in favor of the defendant police
officers, and could have given the jury the impression that he
lacked impartiality.

    Outside of the juror’s presence and before submitting the
case to the jury, the district court indicated that it had
prejudged the case’s outcome by telling counsel that he
would “fix it” if the jury did not “get it right.” In context, this
statement implied that the “right” outcome would be for the
jury to reach a defense verdict by rejecting the testimony by
one of Krechman’s experts.

    Also in comments made without the jury present, the
district judge relied on his own past, personal experience as
a police officer to justify the Defendants’ actions. He
concluded that the loose handcuff on Appel’s hand was a
“weapon,” because he had “been there.” He also relied on his
experience, having “been there” and “done [that]” to
determine that the officers were in a “street fight” with Appel.
Although the district court did not make such statements in
front of jurors, such reliance on personal experience in
deciding the case nevertheless exhibits a potential for
personal favoritism toward the defendant police officers.
            KRECHMAN V . COUNTY OF RIVERSIDE                   17

     The record also shows that the jury could have “perceived
an appearance of . . . partiality” based on comments the
district court made with the jury present. Laurins, 857 F.2d
at 537. Specifically, during voir dire, the district judge
justified a police officer’s inappropriate conduct toward a
prospective juror’s son. Responding to the court’s inquiry as
to whether any juror or a family member had previous
“encounters with the criminal justice system,” one juror
responded that her son had been arrested when he was a
senior in high school for failing to pay a traffic ticket. The
juror reported that her son was very upset by the experience,
because a police officer had told him “[O]h, my goodness,
you are such a cutie boy, look at you, blonde with curly hair,
green eyes, slender, they are going to love you so much [in
jail], maybe I should get some Vaseline for you, you are
going to need it.”

    After the juror related this encounter and indicated that it
made her “very upset,” the district judge asked her, “Has your
son ever had another encounter with law enforcement since
that event?” She answered, “No.” The district judge then
proceeded to tacitly approve the police officer’s conduct,
indicating to the juror that she should have “bought [the
officer] a cup of coffee,” because his statement to her son had
“scared [him] straight.” The court’s unnecessary approval of
such inappropriate comments by law enforcement could have
signaled to the jury the district court’s partiality to police
officers.

    The foregoing comments exhibit a disregard for the
principle that, as a trial judge, the district judge “must be ever
mindful of the sensitive role it plays in a jury trial and avoid
even the appearance of advocacy or partiality.” United States
v. Elder, 309 F.3d 519, 524 (9th Cir. 2002) (emphasis added)
18         KRECHMAN V . COUNTY OF RIVERSIDE

(quoting Kennedy v. L.A. Police Dep’t, 901 F.2d 702, 709
(9th Cir. 1990), overruled on other grounds by Hunter v.
Bryant, 502 U.S. 224 (1991) (per curiam)). Because the jury
hung in this case, we cannot be certain that such comments by
the district court did not affect the trial’s outcome.
Additionally, they bear no rational relationship to
“controlling the conduct of [the] trial.” Penk v. Oregon State
Bd. of Higher Educ., 816 F.2d 458, 465 (9th Cir. 1987).
Instead, they give the appearance that the district court was
partial to the defense—a premise that aligns with the district
court’s conclusion that Defendants were entitled to judgment
as a matter of law.

   Although we do not reach the issue of whether the district
court’s conduct rose to a level that independently warrants a
new trial, it certainly approached that line.
