                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAR 27 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT

LEE WATSON,                                      No.   17-17515

              Plaintiff-Appellant,               D.C. No. 5:15-cv-04054-NC

 v.
                                                 MEMORANDUM*
CITY OF SAN JOSE (SAN JOSE
POLICE DEPARTMENT) et al.,

              Defendants-Appellees.


                   Appeal from the United States District Court
                      for the Northern District of California
                Nathanael M. Cousins, Magistrate Judge, Presiding

                          Submitted February 15, 2019**
                            San Francisco, California


Before: McKEOWN and W. FLETCHER, Circuit Judges, and EZRA,*** District
Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
      Appellant and San Jose Police Department officers were involved in an

incident on the morning of October 1, 2014, which resulted in numerous injuries to

Appellant including an open fracture of his right tibia and fibula, a severely

fractured and dislocated left elbow, and “quite a number” of soft tissue injuries.

Watson filed suit against the City of San Jose and individual officers Matthew

Brackett, Ryan Hansen, Ronald Hughes, Christopher Heinrich, Michael Panighetti,

Sgt. Joseph Stewart, Jonathan Baker, Daniel P. Guerra, Gerardo Silva, and Paul

Joseph for excessive force, unreasonable search and seizure, and municipal liability

for an unconstitutional custom, practice, or policy under 42 U.S.C. § 1983.

Watson also brought state law claims for battery, intentional infliction of emotional

distress, negligence, and negligent training.

      Trial was bifurcated into separate phases for the consideration of liability

and damages. The jury found for the Defendant Officers during the liability phase,

so the trial did not proceed to the damages phase. Judgment was entered for the

Defendants on September 20, 2017.

      Appellant now appeals that judgment, arguing: (1) the district court abused

its discretion in allowing officer testimony regarding prior training and experience

with suspects who are under the influence of drugs; and (2) the district court

violated its own pretrial ruling and abused its discretion in allowing one officer to


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testify as to the contents of a report which indicated drug use and which was not

prepared or viewed until after the incident; and that both of those errors

substantially prejudiced Appellant so as to require reversal and a new trial.

      A district court’s decision to admit evidence is reviewed for abuse of

discretion. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999); Boyd v.

City and County of San Francisco, 576 F.3d 938, 943 (9th Cir. 2009). Under an

abuse of discretion standard, the district court’s decision stands unless the decision

is “manifestly erroneous,” De Saracho v. Custom Food Mach., 206 F.3d 874, 879

(9th Cir. 2000) or “lies beyond the pale of reasonable justification under the

circumstances.” Boyd, 576 F.3d at 943 (quoting Harman v. Apfel, 211 F.3d 1172,

1175 (9th Cir. 2000)). We have jurisdiction under 28 U.S.C. § 1291 and we

affirm.

          Admission of Officer Testimony as to Prior Training and Experience

          Appellant argues that testimony as to the officers’ prior training and

experience with regard to subjects under the influence of drugs is irrelevant under

FRE 401 and 402 and more prejudicial than probative under FRE 403, and thus

that its admission was an abuse of discretion.

      “[W]hen analyzing the objective reasonableness of the officers’ conduct

under Graham, we cannot consider [facts unknown to the officers at the time].”


                                             3
Hayes v. County of San Diego, 736 F.3d 1223, 1232–33 (9th Cir. 2013) (citing

Graham v. Connor, 490 U.S. 386, 396–97 (1989)). Information actually known or

observed by officers at the time of the incident is relevant to the use of force

calculation under Graham. Id.; see also Diaz v. City of Anaheim, 840 F.3d 592,

602 (9th Cir. 2016). The officer testimony to which Appellant objected at trial and

that forms the basis of this appeal is testimony by the officers about their

perceptions at the time of the incident and their training and experience as it related

to those observations. The trial court considered these arguments twice: (1) at the

motion in limine stage, when the court bifurcated the trial into liability and

damages phases for fear of undue prejudice; and (2) after the pretrial conference,

when the court barred evidence of drug use “unless it is information that defendant

officers actually knew before or during their use of force against Watson.” The

testimony offered by officers here was not testimony regarding Appellant’s actual

intoxication, which would be impermissible under Hayes and Diaz. Rather, it was

testimony regarding Mr. Watson’s demeanor at the time just before and during the

incident and testimony regarding how the officers had been trained to react, all of

which is part of the trial court’s obligation to pay “careful attention to the facts and

circumstances of [the] particular case ” as a part of the totality of circumstances

analysis. Graham, 490 U.S. at 396. The trial court’s decision to allow officer


                                            4
testimony as to observations at the time of the incident and the training and

experience which informed their reactions to those observations did not “lie[]

beyond the pale of reasonable justification under the circumstances” and was not

an abuse of discretion. Boyd, 576 F.3d at 943 (quoting Harman, 211 F.3d at 1175).

Further, as the admission of the testimony was not an abuse of discretion,

Appellant has failed to show that there was an error that was prejudicial or that

“more probably than not” affected the verdict. Id. (quoting McEuin v. Crown

Equip. Corp., 328 F.3d 1028, 1032 (9th Cir. 2003)).
        Admission of the Contents of a Report Prepared After the Incident

      Appellant also argues that the trial court’s admission of officer testimony

regarding the contents of a report prepared after the incident was an abuse of

discretion, and that the inclusion of that evidence substantially prejudiced

Appellant so as to require reversal and a new trial.

      The testimony to which Appellant objects was elicited by Appellant’s own

counsel on cross-examination. During the colloquy, Appellant’s trial counsel

attempted to impeach the officer’s prior statement that Appellant had been

behaving erratically and had appeared “sweaty and possibly. . . under the

influence” by insinuating that such observations were not included in the police

report. The officer responded that he had included that information in his



                                           5
supplemental report by “check[ing] the box” and writing “chemical under the

influence.” The supplemental report was prepared after the incident. Therefore,

Appellant argues that the inclusion of the officer’s testimony without any kind of

limiting instruction was in error, and that the error caused him substantial

prejudice.

      Without deciding whether this was an abuse of discretion, we do not find

that this testimony was prejudicial to Appellant or that it more likely than not

affected the verdict. See McEuin, 328 F.3d at 1032. The vast majority of

testimony at the trial was not focused on the issue of drug use at all. Rather, it

centered around discrepancies between Appellant’s and the officers’ accounts of

the incident. The defense did not rely on the reports nor on any of the officers’

testimony regarding drug use in its closing. In fact, the defense chose not to

summarize their witness testimony in closing at all, focusing instead on the

Appellant’s burden of proof. Unlike the case upon which Appellant relies, Estate

of Diaz v. City of Anaheim, where improper drug use evidence was presented by an

expert and liability was not bifurcated from damages, 840 F.3d. at 602–03, 606, the

allegedly improper evidence here was a single witness’ testimony on cross-

examination by Appellant’s own attorney. Therefore, the admission of the later-

completed report was not prejudicial, nor did it more probably than not “taint” the


                                           6
verdict. McEuin, 328 F.3d at 1032; see also United States v. Morales, 108 F.3d

1031, 1040 (9th Cir. 1997) (en banc).

         For the reasons stated above, we AFFIRM the Judgment of the District

Court.

         AFFIRMED.




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