Weed et al v. City of Seattle et al, No. 2:2010cv01274 - Document 101 (W.D. Wash. 2012)

Court Description: ORDER denying pltfs' 90 Motion for New Trial by Judge Ricardo S Martinez.(RS)

Download PDF

Weed et al v. City of Seattle et al Doc. 101 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 DAVID EDWARD WEED and JAMES WILLIAM WEED, 11 CASE NO. C10-1274-RSM ORDER DENYING PLAINTIFFS’ MOTION FOR A NEW TRIAL Plaintiffs, 12 v. 13 14 15 THE CITY OF SEATTLE, TERRY DUNN, and DALE DAVENPORT, Defendants. 16 17 18 I. INTRODUCTION This matter comes before the Court upon Plaintiffs’ Motion for a New Trial (Dkt. No. 19 90). For the reasons set forth below, the motion is DENIED. 20 21 II. DISCUSSION Plaintiffs argue three bases for the court to grant a new trial: (1) the verdict is against the 22 weight of evidence; (2) the court should have admitted evidence of Officer Dunn’s disciplinary 23 history, especially because of the purported false light in which Dunn was painted by the 24 ORDER DENYING PLAINTIFFS’ MOTION FOR A NEW TRIAL - 1 Dockets.Justia.com 1 defense; and (3) evidence may exist of improprieties during jury deliberations. Defendants 2 respond that the weight of the evidence supports the verdict, that Officer Dunn’s prior history 3 was properly excluded, and that no admissible evidence exists regarding jury deliberation 4 improprieties. Defendants also move to strike Plaintiffs’ reply for failing to comply with the 5 local rules and for containing new argument and evidence not submitted in their original motion. 6 Defendants additionally move to strike the declaration of David Weed as inadmissible hearsay. 7 The Court considers each of these issues in turn. 8 9 A. Motions to Strike Defendants move to strike Plaintiffs’ reply as exceeding the page limit set by the local 10 rules. “Motions noted under Local Rule CR 7(d)(3) and briefs in opposition shall not exceed 11 twelve pages. Reply briefs shall not exceed six pages.” Local Rule CR 7(e)(4). Plaintiffs’ 12 motion for a new trial is 22 pages long. Plaintiffs’ reply is 24 pages long. The Court will not 13 strike the excess pages from Plaintiffs’ moving brief because (1) Defendants did not move to 14 strike these pages and (2) because Defendants themselves filed a response brief that was just 15 over 18 pages long. Nonetheless, the Court GRANTS Defendants’ motion to strike the excess 16 pages from Plaintiffs’ reply brief. The Court will consider only the first 6 pages of Plaintiffs’ 17 reply brief. 18 Defendants also move to strike portions of Plaintiffs’ reply brief relating to a telephone 19 conversation between Juror No. 4 and David Weed following the conclusion of the trial. The 20 Court was aware that a telephone conversation had taken place between a juror and one of the 21 Plaintiffs, although it did not know the specific content of the conversation nor which juror had 22 called the Plaintiff. Indeed, the Court had previously granted Plaintiffs’ counsel permission to 23 contact the juror while in the telephonic or physical presence of Defendants’ counsel. Dkt. No. 24 86. Plaintiffs’ counsel never did so. Instead, in their reply brief to this motion, Plaintiffs recount ORDER DENYING PLAINTIFFS’ MOTION FOR A NEW TRIAL - 2 1 what purportedly was said during the conversation between Juror No. 4 and David Weed. 2 Plaintiffs aver that the juror told David Weed that (1) another juror received text messages from 3 her husband about the existence of media coverage of the case and commented on them to the 4 other jurors during trial and that (2) the verdicts were not supported by the required vote of six 5 jurors – that the vote had actually been 5 to 3. Dkt. No. 95, p. 3. Plaintiffs also provide a sworn 6 declaration by David Weed indicating that the juror told him that, had the jury known of Officer 7 Dunn’s prior history, the verdict would have been different. See Dkt. No. 98. The declaration 8 also explains that the text messages that one of the jurors received were sent “to notify the jurors 9 not to read the newspaper.” Id. at ¶ 6. 10 As of the date of this order, Plaintiffs have had over three months to contact the juror and 11 present this Court with admissible evidence regarding their allegations of impropriety during 12 deliberations. Plaintiffs, however, have failed to even establish contact with the juror. 13 Moreover, Plaintiffs have not provided the Court with any information regarding why they have 14 not contacted the juror. The Court must assume that admissible evidence regarding purported 15 improprieties during deliberations does not exist. 16 Defendants move to strike both David Weed’s declaration and the references in the reply 17 brief to what the juror told David Weed. The motion is GRANTED. David Weed’s declaration 18 is inadmissible hearsay for which no exception applies. See Fed. R. Civ. P. 801 & 802. The 19 references to the juror’s statements in the reply brief are improper as they constitute argument 20 raised for the first time in a reply brief and they rely on inadmissible hearsay. 21 Finally, the Court notes that, even if it were to consider the stricken declaration and 22 portions of the reply brief, the information likely would not warrant granting Plaintiffs’ motion 23 for a new trial. The declaration states that “the attorney husband of one of the jurors sent his 24 ORDER DENYING PLAINTIFFS’ MOTION FOR A NEW TRIAL - 3 1 wife text messages during the trial to notify the jurors not to read the newspaper.” Dkt. No. 98, ¶ 2 6. An unauthorized communication between a juror and a third party is not presumptively 3 prejudicial if it is de minimis. Caliendo v. Warden, 365 F.3d 691 (9th Cir. 2004). A 4 communication is de minimis if it does not present a risk of influencing the verdict. Id. at 697. 5 In assessing whether an ex parte contact is de minimis, the court considers whether the 6 unauthorized communication between a juror and a third party concerned the case, the length and 7 nature of the contact, the identity and role at trial of the parties involved, evidence of actual 8 impact on the juror, and the possibility of eliminating prejudice through a limiting instruction. 9 Id. at 697-98. 10 Here, the text messages between the juror and her husband and the subsequent 11 communication of those messages to the jury were de minimis. The communications did not 12 present a risk of influencing the verdict. Rather, the actual information transmitted was harmless 13 to the plaintiffs, indicating only that media coverage existed regarding the trial. Plaintiffs do not 14 explain how such information would be prejudicial, nor do they contend that the messages 15 relayed contained any information about the actual content of that media coverage. Indeed, the 16 juror’s husband’s purpose in sending the messages, however misguided, appears to have been to 17 prevent any of the jurors from seeing media coverage that would in fact present a risk of 18 influencing the verdict. The communications did not come from somebody with a motive to 19 influence the case – they came from a husband of a juror, who had no connection to the 20 litigation. Addressing the length and nature of the contact, the communications were in the form 21 of text messages, which are by their nature brief and fleeting. Finally, the Court reminded the 22 jury on several occasions to consider only the evidence presented during the trial. Therefore, 23 24 ORDER DENYING PLAINTIFFS’ MOTION FOR A NEW TRIAL - 4 1 even if the Court were to consider Plaintiffs’ inadmissible evidence of juror communications 2 with a third party, the Court would not grant Plaintiffs’ motion for a new trial. 3 Similarly, the Court would not grant Plaintiffs’ motion for a new trial based on the 4 allegation that the jury’s vote had been only 5 to 3 in favor of Defendants, rather than the 5 required 6 to 2. This allegation is directly contradicted by evidence in the record that, upon 6 conclusion of the trial, each juror was polled regarding the verdict in this case. None of the 7 jurors responded that they had reason to believe that less than 6 jurors had found in favor of the 8 defendants. 9 Finally, the juror’s purported statement that the verdict would have been different had 10 Officer Dunn’s prior history been admitted into evidence is irrelevant. The Court did not 11 exclude evidence about Officer Dunn because it thought that it would have no effect on the jury. 12 13 B. Motion Pursuant to Rule 59(a) Rule 59(a) provides that “[a] new trial may be granted ... in an action in which there has 14 been a trial by jury, for any of the reasons for which new trials have heretofore been granted in 15 actions at law in the courts of the United States.” Fed. R. Civ. P. 59(a)(1). “Rule 59 does not 16 specify the grounds on which a motion for a new trial may be granted.” Zhang v. Am. Gem 17 Seafoods, Inc., 339 F.3d 1020, 1035 (9th Cir.2003). Rather, the court is “bound by those 18 grounds that have been historically recognized.” Id. Historically recognized grounds include, 19 but are not limited to, claims “that the verdict is against the weight of the evidence, that the 20 damages are excessive, or that, for other reasons, the trial was not fair to the party moving.” 21 Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251, 61 S. Ct. 189, 85 L. Ed. 147 (1940). 22 The Ninth Circuit has held that “[t]he trial court may grant a new trial only if the verdict is 23 contrary to the clear weight of the evidence, is based upon false or perjurious evidence, or to 24 prevent a miscarriage of justice.” Passantino v. Johnson & Johnson Consumer Prods., 212 F.3d ORDER DENYING PLAINTIFFS’ MOTION FOR A NEW TRIAL - 5 1 493, 510 n. 15 (9th Cir.2000). The Court may not grant a new trial simply because it would have 2 arrived at a different verdict. Silver Stage Partners, Ltd. v. City of Desert Hot Springs, 251 F.3d 3 814, 819 (9th Cir. 2001). 4 5 1. Weight of the Evidence This was a close case. Much of the evidence consisted of conflicting testimony regarding 6 the events that transpired on the night of Plaintiffs’ arrest. The jury apparently chose to credit 7 Defendants and the Defendants’ witnesses over the Plaintiffs and their witnesses. The Court will 8 not supplant the jury’s sound judgment with its own because the jury’s verdict is not contrary to 9 the weight of the evidence. 10 Plaintiffs argue that the weight of the evidence did not support the jury’s defense verdict 11 on the warrantless entry and state law trespass claims. The Court disagrees. The elements of the 12 Fourth Amendment warrantless entry claims were set forth in instruction No. 11; the elements of 13 the state law trespass claims are set forth in instruction No. 23. See Dkt. No. 76. Officer Dunn 14 testified that he instinctively placed his boot in the threshold of the door when it was slammed 15 shut. Dkt. No. 94, Ex. 2. He testified that he did not intend to enter the house when he crossed 16 the threshold. Id. When the door popped back open, he saw David standing in the doorway and 17 instinctively moved to the side to be at an angle to him. Id. Officer Davenport testified that he 18 entered the home after David Weed pushed Officer Dunn. Id. At Ex. 1. The Plaintiffs offer 19 conflicting testimony and Officer Luong’s testimony supports neither the Defendants nor the 20 Plaintiffs. Molly Simms’ testimony supports Plaintiffs’ version of events, but later testimony 21 demonstrated that Molly Simms’ sister was dating one of the Plaintiffs. 22 The Court assumes that the jury credited the testimony of the officers over the Plaintiffs 23 and Molly Simms. Having done so, the jury would have found that Officer Dunn’s step into the 24 doorway was an unintentional, instinctive reaction to the door being slammed in his face. The ORDER DENYING PLAINTIFFS’ MOTION FOR A NEW TRIAL - 6 1 evidence also supported a finding that the second step was instinctual. Plaintiffs argue that they 2 are not required to prove specific intent to succeed on their claims for warrantless entry and 3 trespass; that Officer Dunn, in crossing the threshold, ipso facto violated the Fourth Amendment 4 prohibition against warrantless entry. See Graham v. Connor, 490 U.S. 386, 397, 109 S. Ct. 5 1865, 104 L. Ed. 2d 443, 456 (1989); Vaughan v. Cox, 343 F.3d 1232, 1329 (11th Cir. 2003). 6 While it is true that Plaintiffs need not prove specific intent to break the law, Plaintiffs do need to 7 prove that the entry into the Weeds’ home was intentional, as opposed to a mere accident. Cf. 8 Brower v. County of Inyo, 489 U.S. 593, 596–597, 109 S.Ct. 1378, 1381, 103 L.Ed.2d 628 9 (1989) (“[A] Fourth Amendment seizure does not occur whenever there is a governmentally 10 caused termination of an individual's freedom of movement (the innocent passerby), nor even 11 whenever there is a governmentally caused and governmentally desired termination of an 12 individual's freedom of movement (the fleeing felon), but only when there is a governmental 13 termination of freedom of movement through means intentionally applied.”) (emphasis in 14 original). Here, the evidence supported a finding that the entry was in fact an unintentional 15 response to the stimulus of the door slamming. Finally, with respect to Officer Davenport, the 16 evidence also supported a finding that, after David Weed pushed Officer Dunn, exigent 17 circumstances existed to enter the home and assist Officer Dunn. For purposes of the state law 18 claim, Officer Davenport had a limited privilege to enter the house at that point. 19 Plaintiffs also argue that the defense verdicts on the excessive force and state law battery 20 claims were against the weight of evidence. Jury instruction number 17 sets forth the elements 21 of the excessive force claims; instruction number 20 sets forth the elements of the state law 22 battery claims. See Dkt. No. 76. The jury was instructed to consider several factors in 23 evaluating the amount of force used in arresting the Weed brothers, including the severity of the 24 ORDER DENYING PLAINTIFFS’ MOTION FOR A NEW TRIAL - 7 1 crime, whether plaintiff posed an immediate threat to the safety of the officers or to others, 2 whether the plaintiff was actively resisting arrest or attempting to evade arrest, the amount of 3 time and any changing circumstances during which the officer had to determine the type and 4 amount of force used, the type and amount of force used, and the availability of alternative 5 methods. See Dkt. No. 76. 6 As with the warrantless entry and trespass claims, the testimony of the Plaintiffs differed 7 wildly from the testimony of the officers. However, the verdict was not against the clear weight 8 of the evidence. The officers testified that the Plaintiffs initiated the altercation, that they 9 punched Officer Dunn, that they refused to obey orders, and that one of the third parties present 10 reached for Officer Dunn’s weapon. Dkt. No. 95, Exs. 1 & 2. The entire altercation lasted a 11 matter of seconds and the evidence regarding the severity of injury sustained by the Plaintiffs 12 was sparse. Assuming that the jury credited the officers’ testimony over that of the Plaintiffs’, 13 the jury’s verdicts in favor of the defense on the excessive force and state law battery claims 14 were not against the weight of the evidence. 15 16 2. Exclusion of Officer Dunn’s Prior History Prior to trial, Plaintiffs moved to admit evidence of Officer Dunn’s prior disciplinary 17 history, including evidence of an altercation between Officer Dunn and a citizen in which Officer 18 Dunn was initially found to have used excessive force and engaged in conduct unbecoming of an 19 officer. See Dkt. No. 36, Ex. A. Chief Kerlikowske suspended Officer Dunn without pay and 20 ordered 5 days of his leave forfeited. Id. at B. Dunn, however, appealed to the Public Safety 21 Civil Service Commission and a majority reversed the suspension. Id. at Ex. C. Plaintiffs 22 argued in pretrial briefing that Officer Dunn’s disciplinary history was admissible, 23 notwithstanding the reversal on appeal, because it gave Dunn a motive to lie about what 24 happened with the Weed brothers so that he could avoid another excessive force allegation. The ORDER DENYING PLAINTIFFS’ MOTION FOR A NEW TRIAL - 8 1 Court disagreed and denied Plaintiffs’ motion in limine prior to trial. Dkt. No. 49. Plaintiffs 2 renewed their motion on the fourth day of trial, rearguing that Dunn’s disciplinary history 3 showed a motive to lie and should be admitted. The Court denied the renewed motion. 4 Plaintiffs now argue that Defendants’ characterization of Officer Dunn during the trial 5 and in closing argument placed Officer Dunn in a false light, opening the door to introduction of 6 Dunn’s disciplinary incidents. The Court again disagrees. First, this argument should have been 7 brought in a motion for reconsideration of the Court’s order denying Plaintiff’s motion to admit 8 the evidence. See Local Rule 7(h) (providing that a motion for reconsideration should be filed 9 within fourteen days of the order to which it relates). Second, “[e]vidence of other crimes, 10 wrongs, or acts is not admissible to prove the character of a person in order to show action in 11 conformity therewith.” Fed. R. Evid. 404(b). Such evidence may be admitted for other 12 purposes, such as to prove a motive to lie. Id. Here, however, Officer’s Dunn’s suspension was 13 reversed. Therefore, he did not have a “prior history” of using excessive force that would 14 motivate him to lie about the events that took place at the Weed brothers’ residence. See Fed. R. 15 Evid. 404(b). Third, admitting evidence of Officer Dunn’s overturned suspension would be 16 more prejudicial than probative in this case, since the jury would likely not give due weight to 17 the fact that the suspension was overturned. See Fed. R. Evid. 403. 18 Finally, while Defendants’ and Defendants’ counsel’s characterization of Officer Dunn 19 during trial came close to opening the door to Defendants’ prior history, Defendants were careful 20 to limit the characterization to that specifically of Dunn’s history in responding to noise 21 complaints. See e.g., Dkt. No. 88, p. 14, Ex. F (“Now, did Terry Dunn have any intent to enter 22 that house that night? Well, let’s take a look at what the evidence has shown about his history. 23 Lots and lots of noise ordinance violations, dozens, maybe hundreds. Never a problem.” ); Dkt. 24 ORDER DENYING PLAINTIFFS’ MOTION FOR A NEW TRIAL - 9 1 No. 88, p. 30, Ex. F (“[T]he only way the plaintiffs’ case makes any sense is if you believe that 2 two reasonable police officers, who have dealt with this very scenario dozens and hundreds of 3 times, for no reason whatsoever decided to go crazy that night, together. That didn’t happen.”). 4 The Court finds that Defendants did not open the door to Officer Dunn’s prior history and that 5 the failure to introduce the evidence of the prior history did not result in a miscarriage of justice. 6 7 III. CONCLUSION Having considered Plaintiff’s motion, the response and reply thereto, all declarations and 8 attached exhibits, and the remainder of the record, the Court hereby finds and ORDERS: 9 10 11 (1) Plaintiff’s motion for a new trial is DENIED. (2) The Clerk of the Court is directed to forward a copy of this order to all counsel of record. 12 13 DATED this 16th day of February 2012. 14 15 16 A 17 RICARDO S. MARTINEZ UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 ORDER DENYING PLAINTIFFS’ MOTION FOR A NEW TRIAL - 10

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.