Estate of Manuel Diaz v. City of Anaheim

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ESTATE OF MANUEL DIAZ; No. 14-55644
GENEVIEVE HUIZAR, an individual,
Plaintiffs-Appellants, D.C. No.
8:12-cv-01897-
v. JVS-RNB

CITY OF ANAHEIM, a California
municipal entity; NICK ORDER AND
BENNALLACK, Officer, AMENDED
Defendants-Appellees. OPINION

Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding

Argued and Submitted July 7, 2016
San Francisco, California

Filed August 24, 2016
Amended October 27, 2016

Before: Marsha S. Berzon and John B. Owens, Circuit
Judges, and Algenon L. Marbley,* District Judge.

Order;
Opinion by Judge Owens

*
The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.
2 ESTATE OF DIAZ V. CITY OF ANAHEIM

SUMMARY**

Civil Rights

The panel reversed the district court’s judgment, entered
following a jury trial in favor of defendants, in an action
alleging that a City of Anaheim police officer used excessive
force when he shot and killed Manuel Diaz.

The panel held that the district court erred by refusing to
bifurcate the liability phase from the compensatory damages
phase of the trial and as a result the district court admitted
inflammatory evidence introduced by the defendants that had
no relevance to the key issue in the case, whether defendant
acted within the law when he shot Diaz.

The panel remanded for a new trial with guidance for the
district court to: (1) closely review under Federal Rule of
Evidence 401 and 403 evidence of Diaz’s drug and gang
affiliation and admit the evidence only to the degree that it
was connected to the reaction of Diaz’s mother to his death;
(2) not permit expert testimony about gangs to be admitted if
plaintiffs are willing to stipulate that Diaz was a gang
member; (3) sufficiently consider that a limiting instruction
may not sufficiently mitigate the prejudicial impact of certain
evidence; and (4) when striking testimony, to clearly identify
what testimony was improperly given, and instruct the jury
that it may not be considered.

**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 ESTATE OF DIAZ V. CITY OF ANAHEIM 3

The panel affirmed the district court’s denial of plaintiffs’
motion for judgment as a matter of law on the excessive force
claim, holding that this question was one for the jury. The
panel noted that while plaintiffs presented substantial
evidence that the force was unreasonable, defendants also
presented substantial evidence to support their position.

COUNSEL

Dale K. Galipo (argued) and Melanie T. Partow, Law Offices
of Dale K. Galipo, Woodland Hills, California; Angel
Carrazco, Jr., Carrazco Law, A.P.C., Tustin, California; Paul
L. Hoffman, Schonbrun Desimone Seplow Harris &
Hoffman, LLP, Venice, California; Humberto Guizar,
Humberto Guizar Law Offices, Montebello, California; for
Plaintiffs-Appellants.

Moses W. Johnson, IV (argued), Assistant City Attorney,
Anaheim, California; Steven J. Rothans and Jill Williams,
Carpenter, Rothans & Dumont, Los Angeles, California; for
Defendants-Appellants.

Denise L. Rocawich, James R. Touchstone, and Martin J.
Mayer, Jones & Mayer, Fullerton, California, for Amici
Curiae California Police Chiefs’ Association, California State
Sheriffs’ Association, and California Peace Officers’
Association.

Steven J. Renick, Manning & Kass Ellrod Ramirez Trester
LLP, Los Angeles, California, for Amicus Curiae
International Municipal Lawyers Association.
4 ESTATE OF DIAZ V. CITY OF ANAHEIM

ORDER

The opinion filed on August 24, 2016, and reported at
2016 WL 4446114, is hereby amended. The superseding
amended opinion will be filed concurrently with this order.

The panel has voted to deny the petition for panel
rehearing. Judges Berzon and Owens voted to deny the
petition for rehearing en banc, and Judge Marbley so
recommends.

The full court has been advised of the suggestion for
rehearing en banc, and no active judge has requested a vote
on whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for panel rehearing and rehearing en banc is
DENIED.

No further petitions for panel rehearing or petitions for
rehearing en banc will be entertained.

OPINION

OWENS, Circuit Judge:

Anaheim Police Officer Nicholas Bennallack shot and
killed Manuel Diaz during a mid-day encounter in July 2012.
Diaz’s estate and mother (“Plaintiffs”) sued Officer
Bennallack and the City of Anaheim (“Defendants”) for
federal civil rights violations and proceeded to a jury trial, but
lost. Plaintiffs argue they should receive a new trial due to
inflammatory evidence introduced by Defendants that had no
 ESTATE OF DIAZ V. CITY OF ANAHEIM 5

relevance to the key issue in the case—whether Officer
Bennallack acted within the law when he shot Diaz. Because
the district court abused its discretion in failing to bifurcate
liability from compensatory damages—thus admitting this
evidence at the liability phase of the trial—and the error was
harmful, we reverse and remand.

I. FACTS AND PROCEDURAL HISTORY

A. Fatal Shooting of Manuel Diaz

While on routine patrol in gang territory the afternoon of
July 21, 2012, Officers Bennallack and Heitmann drove their
unmarked black Crown Victoria into an alley off of Anna
Drive in Anaheim, California. They were not responding to
a call or plea for help, though Bennallack had arrested a man
for gun possession there two weeks prior.

In the alley, Bennallack saw Diaz and another man
standing near a parked vehicle, with a third man inside.
Bennallack neither recognized Diaz nor saw anything in his
hands. But, Bennallack thought that criminal activity was
afoot, and that Diaz was a gang member, based on his
experience in the area and how Diaz was dressed.

Shortly after the officers drove into the alley, and before
they said anything to Diaz, Diaz ran away. The officers
pursued on foot. Officer Heitmann said he saw Diaz
clutching an object near his waist before he took off, but
Bennallack—the shooter—did not. While initially hoping to
have a consensual conversation with Diaz, once the chase
began Bennallack intended to arrest him for the misdemeanor
offense of resisting, obstructing, or delaying a police officer.
6 ESTATE OF DIAZ V. CITY OF ANAHEIM

As the officers chased Diaz, they could not see his hands.
Based on how Diaz’s arms were not “pumping” as expected
and the outward position of his elbows, Bennallack claimed,
he thought Diaz’s hands were in his waistband. Another
witness did not see Diaz put his hands at his waistband. Both
officers said that Diaz looked back at them while he was
running away, which they took as his attempt to “acquire a
target.”

The officers yelled commands such as “stop,” “get on the
ground,” and “show me your hands,” but Diaz kept running,
and eventually went through a gate and into a courtyard.
Bennallack was roughly five to ten feet behind Diaz during
the chase. Bennallack testified that at one point, Diaz
possibly could have exited through a gate to the street, but did
not.1 The officers took this as an escalation of danger, fearing
that Diaz was hoping to lure them into an enclosed space to
shoot them.

Diaz then slowed down. Witnesses disagreed about his
movements at this point. Bennallack said Diaz turned to his
left, while Heitmann said he turned to his right. One witness
did not see him turn or make any threatening movements,
while another saw Diaz turn in a non-threatening manner
when the police told him to get on the ground.

As Diaz started to turn, Bennallack claimed to see a black
cloth object going over a fence close to Diaz . Bennallack
said that he believed Diaz had a gun in a “low-ready” position
in front of his body, ready to fire. According to Bennallack,
as Diaz turned and Bennallack saw the object in the air, he
fired twice. When Bennallack shot Diaz, he could not see

1
Bennallack did not recall whether that gate was open, closed, or ajar.
 ESTATE OF DIAZ V. CITY OF ANAHEIM 7

any part of his arms or hands. The shots occurred within one
to two seconds after Diaz started to slow down; Bennallack
made no lethal force warning. The first bullet entered Diaz’s
right buttock and was lodged in his left thigh. The second
bullet entered the right side of Diaz’s head, just above and
behind his right ear, and exited the left side of his head near
his left ear. Diaz was handcuffed and searched. He died
shortly thereafter at a nearby hospital. Officers found a black
cell phone and narcotics pipe nearby. No firearm was
recovered from the scene.

B. Pretrial Litigation

Diaz’s estate and his mother, Genevieve Huizar, brought
suit against the City of Anaheim and Officer Bennallack.2
Huizar sought only non-economic damages, i.e., her loss of
Diaz’s love, companionship, comfort, care, assistance,
protection, affection, society, and moral support.

A number of Plaintiffs’ claims were disposed of by
stipulation and the district court’s partial grant of Defendants’
motion for summary judgment. By trial, Plaintiffs’ remaining
claims included three claims under 42 U.S.C. § 1983
(excessive force and unreasonable detention under the Fourth
Amendment and unlawful interference with familial relations

2
Plaintiffs filed suit in California Superior Court, and Defendants
removed the action to the District Court for the Central District of
California.
8 ESTATE OF DIAZ V. CITY OF ANAHEIM

under the Fourteenth Amendment) and one claim for battery
under California state law.3

a. Motions In Limine

The parties filed a number of motions in limine, some of
which are relevant on appeal.

Gang Affiliation: The district court ruled that evidence
that Anna Drive was a known gang area was relevant to
liability, but that Diaz’s gang affiliation was relevant only to
damages—the theory being that his gang membership
undermined the strength of his mother’s love for him and
their relationship. The court excluded photographs of his
gang tattoos, but noted it would revisit this issue if Diaz’s
mother testified with respect to damages that she had no
knowledge of his gang affiliation.

Photographs: The court in principle agreed with
Defendants that photographic evidence from Diaz’s cell
phone and Facebook page that Diaz possessed a weapon prior
to the incident was relevant to the excessive force analysis
under Boyd v. City & County of San Francisco, 576 F.3d 938,
943–44 (9th Cir. 2009). However, the court indicated it
would likely exclude as irrelevant photos of gang activities
and stacks of money.

Drug Usage: The court ruled that because Defendants did
not offer evidence that Bennallack observed Diaz behaving
erratically during the incident, toxicology evidence of

3
During trial, Plaintiffs withdrew their Fourteenth Amendment claim.
The district court refused to submit the unreasonable detention claim to
the jury because it lacked sufficient evidence.
 ESTATE OF DIAZ V. CITY OF ANAHEIM 9

methamphetamine use was not relevant to § 1983 liability.
Defendants also asserted that the toxicology evidence was
relevant to damages, but the court’s written order rejected this
theory.

Gang Expert: The court permitted Daniel Gonzalez, a
gang expert, to opine on Diaz’s gang membership, but only
as relevant to damages. The court noted that his gang
affiliation had limited relevance to the amount of damages,
and any testimony should be brief. The court also stated that
if the parties agreed to stipulate to Diaz’s gang membership,
it would reconsider its decision to allow Gonzalez to testify.
The court specifically excluded as unduly prejudicial
testimony about gang activities in general; that Anna Drive
was part of the gang’s turf (as Bennallack would testify to
this and it was undisputed); and any of Diaz’s specific gang
activities.

b. Motion To Bifurcate

Plaintiffs also moved to bifurcate the liability phase from
the damages phase of the trial, to avoid the risk that
prejudicial information unknown to Officer Bennallack at the
time of the shooting—such as Diaz’s gang membership,
related photos, and drug usage—would taint the jury’s
consideration of Bennallack’s use of deadly force. The
district court granted this motion in part, severing punitive
damages from liability and compensatory damages. The
district court briefly explained that neither prejudice nor the
complexity of the issues warranted bifurcating liability from
compensatory damages, and that limiting instructions would
cure any potential prejudice. The record is unclear as to why
the court bifurcated punitive damages but not compensatory
damages.
10 ESTATE OF DIAZ V. CITY OF ANAHEIM

c. Trial

After a six-day trial, the jury deliberated for less than two
hours before returning a verdict that Officer Bennallack did
not use excessive or unreasonable force.4 However, during
trial—and over Plaintiffs’ repeated objections—the district
court’s evidentiary rulings strayed from its pretrial rulings.
As a result, the jury was exposed to a copious amount of
inflammatory and prejudicial evidence with little (if any)
relevance.

i. Improper Evidence of Diaz’s Gang
Membership

The most troubling evidence admitted at trial related to
Diaz’s gang membership. There was wide-ranging testimony
from Defendants’ gang expert, Gonzalez. There were also
photographs featuring Diaz’s tattoos and him posing with
guns and throwing gang signs, none of which Bennallack
knew about or had seen when he shot Diaz.

In ruling on the motions in limine, the district court held
that evidence of Diaz’s gang affiliation was relevant only to
damages, because Officer Bennallack did not know he was a
gang member. The court also specifically excluded evidence
of Diaz’s gang tattoos themselves, such as photographs,
because such evidence was unnecessary to establish the fact
that he was a gang member. The court later recognized
generally that “[p]hotographs have the potential for both
relevant evidence and gratuitous provocation of the jury.”

4
The parties agreed that the jury finding regarding excessive force
would also be dispositive of the state battery claim.
 ESTATE OF DIAZ V. CITY OF ANAHEIM 11

Further, before trial the court had warned that if Diaz’s
mother testified she had no knowledge of his gang affiliation,
the court would revisit its ruling on the admissibility of
evidence of Diaz’s tattoos. The court also noted that if
Plaintiffs stipulated that Diaz was a gang member, it would
reconsider its decision regarding the testimony of the gang
expert. At trial, Diaz’s mother was somewhat equivocal as to
whether she knew her son was a gang member.5 Though
Plaintiffs then offered to stipulate to his gang membership,
the district court ultimately permitted the gang expert to
testify, explaining that:

Given [Diaz’s mother’s] testimony, I think
[the defense is] entitled to put the gang expert
on. It has got to be narrow and it’s got to be
focused on his gang membership, not the
activities of the gang at large. I don’t think
the plaintiff at this time is entitled to basically

5
She testified as follows:

Q: Do you acknowledge that your son was a member
of the East Side Anaheim street gang?

A: I have come to find out more after his death. I
loved my son, and maybe I didn’t know a lot about
him during those times. It doesn’t mean I didn’t
love him any less.

Q: No one is disputing that, Ms. Huizar. Are you
indicating you did not know at that time that he
was a member of the East Side Anaheim street
gang?

A: I’m not sure how to answer because I never
thought of him as a gang member.
12 ESTATE OF DIAZ V. CITY OF ANAHEIM

rehabilitate the testimony and rewrite the
record.

The court then ruled that Defendants could offer photographs
of Diaz’s gang tattoos and him throwing gang signs, as well
as other information related to his gang moniker, clothing,
and association. When Plaintiffs’ counsel questioned the
court’s change of heart regarding the admission of the tattoo
photographs—which it had initially excluded—the court
remarked, “[w]ell, I think they’re entitled to put in probative
evidence. She hasn’t straight up admitted that he was a gang
member. I don’t think the tattoos are inflammatory. They are
what they are.” In contrast, the court excluded discussion of
specific gang activities, and any additional photographs of
Diaz with guns, as some already had been admitted as to
liability under a “gang gun” theory.6 But Defendants again
were permitted to present the previously admitted gun
photographs to the jury—in one, Diaz held a gun in his left
hand and made a gang sign with his right. In another, he
pointed a gun to his head.

6
Defendants’ explanation for why no firearm was found at the scene
was that Diaz was armed with a shared “gang gun” that a fellow gang
member retrieved and removed after the shooting. As such, the court
admitted photographs of Diaz posing with guns two days before the
shooting, ostensibly under the auspices of Boyd. See 576 F.3d at 944 (“In
a case such as this, where what the officer perceived just prior to the use
of force is in dispute, evidence that may support one version of events
over another is relevant and admissible.”). As Officer Bennallack never
saw a gun, we have reservations about the admissibility of this evidence
even as to liability. But we need not reach this question, as Plaintiffs have
not meaningfully raised the issue on appeal and we reverse on bifurcation
grounds.
 ESTATE OF DIAZ V. CITY OF ANAHEIM 13

The testimony of gang expert Gonzalez was highly
prejudicial—so much so that the court gave the jury an early
limiting instruction soon after he testified. Before giving the
instruction, the district court stated in a sidebar that:

Unquestionably this gang evidence at least to
his gang membership is inflammatory, and
frankly the witness made it a point to expand
his answers on every question. Most answers
were beyond the scope of the question. Some
objections were made which I sustained; some
weren’t.

The district court rightly pointed out Gonzalez’s testimony
was both inflammatory and beyond the scope permitted by
the court—as were some of the questions defense counsel
posed.7

For example, when asked “Why do gang members pose
with guns?” Gonzalez responded: “It goes into their image,
their persona of being a gang member, showing other gang
members that they have firearms readily accessible, that they
have means to commit crimes against the general public,
against law enforcement, against rival gang members.”
(emphasis added). When asked “Why do gang members wear
baggy T-shirts?” he responded in part: “Another reason that
I have come to learn about is that it helps conceal items like
firearms, other deadly weapons. It’s easier to put a rifle or a

7
Several questions were so irrelevant to establishing gang membership
or the gang gun theory that the district court sustained Plaintiffs’
objections before Gonzalez could answer. For example, defense counsel
asked, “why do gang members post their photographs on Facebook?” and
“what’s the significance of gang members associating with one another?”
14 ESTATE OF DIAZ V. CITY OF ANAHEIM

sawed-off shotgun down your shorts or your pants when
you’ve got baggy pants on and a baggy shirt.” Gonzalez also
was permitted to testify to several things which the court
originally had excluded as unduly prejudicial under Rule 403
during the motions in limine, including that Anna Drive was
part of the gang’s turf and gang activities in general. He
further testified about Diaz’s gang moniker—“Stomper”—
and then repeatedly used the moniker to refer to Diaz. The
jury also learned that Gonzalez personally had arrested Diaz
on a prior occasion.

Some of Gonzalez’s testimony was formally “stricken”
from the record. The following pattern arose: after improper
testimony, Plaintiffs’ counsel would move to strike the
testimony and the district court would state “stricken” or “the
last part of the answer will be stricken.” During one stretch,
this pattern occurred on five different occasions in seven
minutes. Gonzalez was neither warned nor reprimanded, save
for the district court directing him at the very end of his
testimony to “[p]lease just answer the questions asked.”

In summary, Gonzalez’s testimony did not hew to the
district court’s direction to be “narrow” and “focused on his
gang membership, not the activities of the gang at large.”
Instead, Gonzalez took every opportunity to opine on matters
squarely forbidden by the court’s previous rulings. As a
result, the jury was exposed to inflammatory testimony that
was wholly irrelevant to liability, and of limited relevance
even as to damages.

ii. Improper Evidence of Diaz’s Drug Use

Further, despite its original hesitation, the district court
ultimately ruled that the toxicology evidence was relevant to
 ESTATE OF DIAZ V. CITY OF ANAHEIM 15

damages,8 and Defendants proceeded to similarly stretch this
ruling. In contrast, the court found that the toxicology
evidence was not relevant to § 1983 liability, as Officer
Bennallack did not know or suspect that Diaz was under the
influence of drugs at the time of the incident.

But beyond any marginal relevance of Diaz’s drug use to
damages—again, because it supposedly undermined his
mother’s claim that she loved her son—the evidence at trial
fixated on his drug use on the day of the incident and how it
may have affected his behavior, which had no relevance to
his mother’s loss. Indeed, the singular focus of the drug-use
testimony was Diaz’s toxicological status on the day he was
shot, a risk which the district court recognized when it first
ruled on the issue pretrial. At the time, the court “reject[ed]
the contention that drug intoxication on the date of the
incident goes to damages. At most, it establishes his
condition on just one day. Any further inference would be
unsupported and unduly prejudicial.”

To this end, Defendants’ toxicology expert, Dr. Clark,
discussed the high levels of methamphetamine in Diaz’s
blood when he died, and opined that he was intoxicated when
he was shot:

Those levels—actually there are some people
who die with levels that high, but not in this

8
The timing and rationale underlying the court’s final ruling is not
evident from the record on appeal. Defendants had argued that Diaz’s
drug use was relevant to Ms. Huizar’s claim for the loss of her relationship
with her son, particularly in light of her testimony that Diaz was often not
permitted to live with her and her husband in part because he did not
follow their rule banning drug use.
16 ESTATE OF DIAZ V. CITY OF ANAHEIM

case. And those levels are actually quite high
as far as what we would think of as
recreational use of methamphetamine. But
those levels are high enough since we aren’t
certain of his tolerance to the drug that we can
say he was without a doubt under the
influence at the time of his death[.]

Dr. Clark also described the behavioral effects of
methamphetamine use and how it may have affected Diaz’s
behavior on July 21:

We know methamphetamines can be
dangerous, and we know it affects people
different ways. It can cause euphoria. It can
cause hallucinations. It can cause people to
become paranoid, can cause them to become
violent; and it can cause them to use poor
judgment. That’s pretty much common
knowledge.

From my review of the facts in this case, it’s
possible that methamphetamine at the levels
of which were measured at autopsy could
have caused Mr. Diaz to use poor judgment in
what ended up happening in this case.

While the court granted Plaintiffs’ motion to strike the second
part of the response as lacking medical probability, the jury
already had been exposed to this testimony. This was also the
second time a defense expert improperly speculated as to how
drug use may have affected Diaz’s judgment the day of the
shooting. Even after his earlier testimony was “stricken,” Dr.
Clark continued to focus on the day of the incident. He
 ESTATE OF DIAZ V. CITY OF ANAHEIM 17

testified that Diaz had likely ingested methamphetamine
within six hours of the shooting, and concluded “to a
reasonable medical probability” that “[Diaz] was under the
influence of methamphetamine at the time [of the shooting].”

II. DISCUSSION

A. The Trial Court Erred in Failing To Bifurcate
Liability from Compensatory Damages

Judges have wide latitude in conducting their trials, and
for good reason. See, e.g., Zivkovic v. S. Cal. Edison Co.,
302 F.3d 1080, 1088 (9th Cir. 2002). This is why the rules
permit bifurcation, and why we usually affirm a trial judge’s
decision—to either bifurcate or keep things together—as
within her discretion. But this discretion is not limitless.

a. Standard of Review

We review for abuse of discretion the district court’s
rulings on whether to bifurcate a trial. Exxon Co. v. Sofec,
Inc., 54 F.3d 570, 575 (9th Cir. 1995). Under this standard,
we reverse only when we are “convinced firmly that the
reviewed decision lies beyond the pale of reasonable
justification under the circumstances.” Harman v. Apfel,
211 F.3d 1172, 1175 (9th Cir. 2000).

Federal Rule of Civil Procedure 42(b) permits a court to
order a separate trial of separate claims or issues “[f]or
convenience, to avoid prejudice, or to expedite and
economize.” A court might bifurcate a trial to “avoid[] a
difficult question by first dealing with an easier, dispositive
issue,” Danjaq LLC v. Sony Corp., 263 F.3d 942, 961 (9th
Cir. 2001), or to avoid the risk of prejudice. See Quintanilla
18 ESTATE OF DIAZ V. CITY OF ANAHEIM

v. City of Downey, 84 F.3d 353, 356 (9th Cir. 1996)
(explaining that, in a § 1983 case challenging the use of a
police dog during a search, the trial court bifurcated the trial
of the individual officers from that of the city in part to avoid
prejudice). Further, “[i]t is clear that Rule 42(b) gives courts
the authority to separate trials into liability and damage
phases.” De Anda v. City of Long Beach, 7 F.3d 1418, 1421
(9th Cir. 1993); see also 9A Charles A. Wright & Arthur R.
Miller, Federal Practice & Procedure § 2390 (3d ed. 2016)
(“The separation of issues of liability from those relating to
damages is an obvious use for Federal Rule 42(b).”).

b. Discussion

Here, under the guise of impeaching Huizar’s testimony
that she loved her son, Defendants introduced (over repeated
objection) photographs of Diaz posing with firearms and
making gang signs. Then Gonzalez expounded on the
activities and customs of violent gangs and described Diaz’s
moniker of “Stomper,” his criminal history, and his tattoos in
great detail. Dr. Clark speculated as to how the enormously
high level of methamphetamine in Diaz’s system at the time
of the shooting may have affected his response to the police.
It is hard to see how most of this testimony was relevant even
to damages, absent testimony—of which there was none—
that Ms. Huizar knew of the photographs, gang signs, and
drug use on the day of the offense, and that that knowledge
undermined the emotional impact of her son’s death. And
there was also highly prejudicial testimony that was under
any circumstances not relevant to liability or damages. For
example, Gonzalez stated that gang members require access
to firearms to “use them in self-defense . . . against police
 ESTATE OF DIAZ V. CITY OF ANAHEIM 19

officers” and pose with firearms publicly to show “that they
have means to commit crimes . . . against law enforcement.”9

This was simply overkill. Considering that the parties and
district court had repeated trouble tracking precisely why this
prejudicial evidence was admissible for any purpose, no jury
could properly compartmentalize it. For example, on the
fourth day of trial, the court and parties were still not clear
about whether the fact that Diaz was under the influence of
drugs was relevant to liability under a comparative fault
defense, even after Plaintiffs had dropped their negligence
claim.10 Even assuming that a portion of this evidence had
some relevance to damages, it never should have been
combined with the liability phase.

Indeed, this court has recognized time and time again that
gang evidence has the potential to be particularly prejudicial.
See, e.g., Kennedy v. Lockyer, 379 F.3d 1041, 1055 (9th Cir.
2004) (“Our cases make it clear that evidence relating to gang
involvement will almost always be prejudicial[.]”); United
States v. Takahashi, 205 F.3d 1161, 1165 (9th Cir. 2000)
(holding the district court did not abuse its discretion in
admitting evidence of gang membership where the court

9
This testimony was ostensibly “stricken” from the record as described
above.
10
Prior to Dr. Clark’s testimony—and outside the presence of the jury—
Plaintiffs’ counsel inquired as to the relevance of his testimony, in light of
the fact that they had dropped the negligence claim. Defendants argued
that the toxicology evidence went not only to damages but also to liability
(as relevant to a comparative fault defense), and the court remarked that
“[w]e need to sort that issue out.” No further discussion occurred before
Dr. Clark testified, though the court ultimately gave a limiting instruction
that Diaz’s drug use was relevant only to damages.
20 ESTATE OF DIAZ V. CITY OF ANAHEIM

“recognized the need to prevent undue prejudice,” gave a
limiting instruction, excluded photographs of gang tattoos as
evidence of membership, and minimized repetition of the
gang’s name).

Similarly, even if evidence of Diaz’s drug use were
relevant to damages, the form and nature of the evidence
presented regarding his drug use on the day of the incident
was unduly prejudicial in light of the decision not to
bifurcate. It would have been far more relevant to damages
for an expert to testify simply to the presence of drugs in
Diaz’s body and to the effects of drug use on relationships.
The focus on the day of the incident was minimally probative
of damages, and was highly likely to influence improperly the
jury’s evaluation of Officer Bennallack’s use of force, when
he never suggested he thought Diaz may have been
intoxicated.11

Further, the district court already had bifurcated punitive
damages. Bifurcating from the liability phase the testimony
actually relevant to compensatory damages would have cost

11
In urging en banc review, amici curiae California Police Chiefs’
Association et al. argue that our decision conflicts with Boyd, which
upheld a district court’s decision to admit drug usage evidence to
corroborate the police officers’ testimony that the decedent was acting
erratically. Boyd, 576 F.3d at 943–45. Yet here, the district court
exercised its discretion and prohibited the introduction of Diaz’s drug use
for liability purposes because there was no evidence that Diaz was acting
erratically. See supra at 9. Diaz’s drug usage was only admissible to
undermine any damages award. See supra at 14–17. The officers did not
appeal that ruling, and do not cite Boyd as an alternative means to affirm
the judgment. Simply put, the Boyd argument that amici now raise is not
an issue in this appeal.
 ESTATE OF DIAZ V. CITY OF ANAHEIM 21

little, if any, court time—none, if the jury had returned a
defense verdict.

Because the district court abused its discretion in refusing
to bifurcate the compensatory damages phase (thereby
allowing in this unduly prejudicial evidence of drugs and
gangs), we reverse. Under these circumstances, the court’s
bifurcation ruling was “beyond the pale of reasonable
justification under the circumstances.” Apfel, 211 F.3d at
1175. To be clear, we are not announcing a rule that requires
district courts always, usually, or frequently to bifurcate
damages from liability. District courts still have the broad
discretion to make these decisions. But where, as here,
graphic and prejudicial evidence about the victim has little,
and in large part no, relevance to the liability issue, district
courts should bifurcate to avoid situations like the one before
us.12

In light of our decision to reverse the judgment and
remand for a new trial, we also provide some guidance to the
district court.

12
In light of our ruling, we do not reach the issue of whether Plaintiffs’
failure to make a Rule 50(a) motion as to the unlawful detention claim
barred review of the district court’s dismissal of that claim sua sponte
before the close of evidence. We do observe, however, that requiring a
litigant to make a Rule 50(a) motion for judgment as a matter of law on a
claim no longer before the jury appears, at first blush, futile. See
Velazquez v. City of Long Beach, 793 F.3d 1010, 1018 (9th Cir. 2015) (“A
motion for judgment as a matter of law may be granted if ‘the court finds
that a reasonable jury would not have a legally sufficient evidentiary basis
to find for the party on that issue[.]’” (quoting Fed. R. Civ. P. 50(a))). We
also do not reach whether Plaintiffs are entitled to a new trial under Rule
59(a) based on the district court’s evidentiary rulings or formulation of
jury instructions.
22 ESTATE OF DIAZ V. CITY OF ANAHEIM

First, the evidence of Diaz’s drug use and gang affiliation
has marginal, if any, probative value as to damages, and none
as to liability. On retrial, the district court should closely
review this evidence under Federal Rules of Evidence 401
and 403, and should assure that such evidence is admitted
only to the degree that the testimony is connected up with Ms.
Huizar’s reaction to her son’s death.

Second, if Plaintiffs are willing to stipulate that Diaz was
a gang member (which they claim they tried to do during
trial), no expert testimony about gangs—such as gang
activities, tattoos, or monikers—should be admitted.
Bennallack can certainly testify as to his knowledge about
gang activity in the area. See Graham v. Connor, 490 U.S.
386, 397 (1989) (holding that to determine whether police
force is excessive, the proper inquiry is “whether the officers’
actions are ‘objectively reasonable’ in light of the facts and
circumstances confronting them”).

Third, while there is a “strong presumption that jurors
follow instructions,” a limiting instruction may not
sufficiently mitigate the prejudicial impact of evidence in all
cases. See Miller v. City of Los Angeles, 661 F.3d 1024, 1030
(9th Cir. 2011); Bayramoglu v. Estelle, 806 F.2d 880, 888
(9th Cir. 1986) (“A timely instruction from the judge usually
cures the prejudicial impact of evidence unless it is highly
prejudicial or the instruction is clearly inadequate.” (quoting
United States v. Berry, 627 F.2d 193, 198 (9th Cir. 1980))).
The Advisory Committee Note to Federal Rule of Evidence
403 also recognizes the potential inadequacies of a limiting
instruction, counseling that “[i]n reaching a decision whether
to exclude on grounds of unfair prejudice, consideration
should be given to the probable effectiveness or lack of
effectiveness of a limiting instruction.” And if a limiting
 ESTATE OF DIAZ V. CITY OF ANAHEIM 23

instruction was considered sufficient to cure all prejudice,
there would be no need ever to bifurcate to avoid prejudice in
other cases; yet in the civil rights context, courts often
bifurcate the trials of individual officers from municipalities
to avoid such prejudice. See, e.g., Quintanilla, 84 F.3d at 356
(“The district court . . . in the interest not only of convenience
and judicial economy but also the avoidance of potential
prejudice and confusion, bifurcated the trial of the individual
police officers from the Chief and city.”); Green v. Baca,
226 F.R.D. 624, 633 (C.D. Cal. 2005) (“Bifurcation is
appropriate . . . to protect the individual officer defendants
from the prejudice that might result if a jury heard
evidence regarding the municipal defendant’s allegedly
unconstitutional policies.”).

And fourth, if the district court is going to sustain an
objection and grant a motion to strike, merely saying
“stricken” does not sufficiently inform the jury about the
proper use of the evidence it just heard. When striking
testimony, the court should clearly identify what testimony
was improperly given, and should instruct the jury that it may
not be considered. It should also use a sidebar or brief recess
to warn the witnesses and attorneys that further attempts to
push the envelope could lead to greater sanctions, such as
exclusion of testimony or a negative instruction.13 After all,

13
See, e.g., Barnett v. Norman, 782 F.3d 417, 422–23 (9th Cir. 2015)
(outlining powers of district judge to ensure witness complies with court
order); United States v. Panza, 612 F.2d 432, 439 (9th Cir. 1979) (“We
can only speculate as to the effect on the jury of the striking of the
testimony.” (citing United States v. Cardillo, 316 F.2d 606, 612 n.3 (2d
Cir. 1963)); Cardillo, 316 F.2d at 612 n.3 (“The effectiveness of such
procedures after the testimony has been heard by the jury has been the
subject of speculation, metaphysical and otherwise, by jurists and trial
lawyers for generations.”).
24 ESTATE OF DIAZ V. CITY OF ANAHEIM

lawyers and witnesses, like misbehaving children or rattled
basketball players, sometimes need a timeout.14

B. The Trial Court Did Not Err in Ruling Force
Was Not Excessive as a Matter of Law

Plaintiffs also appeal the district court’s denial of their
motion for judgment as a matter of law on their excessive
force claim. Because the district court correctly ruled that
this question was one for the jury, we affirm its denial of
Plaintiffs’ motion.

a. Standard Of Review

“We review de novo the district court’s denial of a Rule
50(b) renewed motion for judgment as a matter of law. The
test is whether ‘the evidence, construed in the light most
favorable to the nonmoving party, permits only one
reasonable conclusion, and that conclusion is contrary to that
of the jury.’” White v. Ford Motor Co., 312 F.3d 998, 1010
(9th Cir. 2002), amended on denial of reh’g, 335 F.3d 833
(9th Cir. 2003) (footnote omitted) (quoting Forrett v.
Richardson, 112 F.3d 416, 419 (9th Cir. 1997)). We “may
not make credibility determinations or weigh the evidence.”
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
150 (2000).

Where an “excessive force claim arises in the context of
an arrest or investigatory stop of a free citizen, it is most

14
Cf. United States v. McKoy, 771 F.2d 1207, 1213 (9th Cir. 1985) (“We
have often noted that the trial court may be able to ‘neutralize’ the effect
of improper prosecutorial remarks by admonishing counsel to refrain from
such remarks or by giving appropriate curative instructions to the jury.”).
 ESTATE OF DIAZ V. CITY OF ANAHEIM 25

properly characterized as one invoking the protections of the
Fourth Amendment.” Graham, 490 U.S. at 394. As with
other Fourth Amendment claims, we inquire “whether the
officers’ actions are ‘objectively reasonable’ in light of the
facts and circumstances confronting them, without regard to
their underlying intent or motivation.” Id. at 397.

We determine whether challenged state actions are
objectively reasonable by balancing “‘the nature and quality
of the intrusion on the individual’s Fourth Amendment
interests’ against the countervailing governmental interests at
stake.” Id. at 396 (quoting Tennessee v. Garner, 471 U.S. 1,
8 (1985)). This demands a “fact-intensive inquiry requiring
attention to all circumstances pertinent to the need for the
force used.” Velazquez, 793 F.3d at 1024. We “first
consider[] the nature and quality of the alleged intrusion; we
then consider the governmental interests at stake by looking
at (1) how severe the crime at issue is, (2) whether the suspect
posed an immediate threat to the safety of the officers or
others, and (3) whether the suspect was actively resisting
arrest or attempting to evade arrest by flight.” Mattos v.
Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (en banc) (citing
Deorle v. Rutherford, 272 F.3d 1272, 1279–80 (9th Cir.
2001)). These factors are not exclusive. Id.

b. Discussion

Here, while Plaintiffs presented substantial evidence that
the force was unreasonable, Defendants also presented
substantial evidence to support their position. When each of
the Graham factors is analyzed, the record does not “permit[]
only one reasonable conclusion . . . contrary to that of the
jury.” White, 312 F.3d at 1010 (citation omitted).
26 ESTATE OF DIAZ V. CITY OF ANAHEIM

i. Severity of the Crime or Other
Circumstances to Which the Officers
Were Responding

It is undisputed that the only crime Diaz had committed,
if any, was a misdemeanor, and that Officer Bennallack had
no information that a crime was reported in the area.
However, Bennallack was aware of an ongoing criminal
investigation in the area involving the sale and possession of
firearms by the East Side Anaheim Gang, and believed Diaz
to be a gang member.

ii. Immediate Threat To Officer Safety

While Officer Bennallack testified that he never saw
Diaz’s hands, or a weapon on his person, certain indicia could
have led a reasonable officer to believe Diaz was armed. For
example, Bennallack observed that rather than pumping his
arms as he ran, Diaz was “reaching towards his waistband”
and appeared to be manipulating an object with his hands.
Bennallack also testified that Diaz looked back at the officers
multiple times, as if to acquire a target. Finally, instead of
running through a gate that led to the street, Diaz led the
officers into a fenced-in area, and Bennallack observed Diaz
begin to slow down, assume a “low-ready” position, and turn
towards him.

On the other hand, in addition to the fact that Bennallack
never saw Diaz’s hands or a weapon on his person, other
evidence weighs against an immediate threat to officer safety.
For example, Diaz was shot in the back, which could refute
Bennallack’s testimony that he was turning. While the jury
was entitled to weigh this evidence and Bennallack’s
credibility against other evidence and the credibility of
 ESTATE OF DIAZ V. CITY OF ANAHEIM 27

witnesses who offered alternative versions of events, we must
view the evidence in the light most favorable to Defendants.

Certainly “a simple statement by an officer that he fears
for his safety or the safety of others is not enough.” Deorle,
272 F.3d at 1281. Nevertheless, Defendants presented facts
demonstrating why such fear could have been reasonable
here, including observations of Diaz’s movements, flight
route, the presence of gang activity in the area, and his refusal
to comply with the officers’ orders. Cf. id. (explaining that
the officer using force knew the plaintiff “had discarded his
crossbow following [the officer’s] instructions to do so, and
carried only a bottle or a can with him at the time he was
shot”). Even if Bennallack’s subjective fear is discounted,
much of his testimony focused on observations during the
encounter and how he interpreted the situation based on his
training, which the jury could reasonably credit.

iii. Attempting To Evade Arrest by Flight

It is undisputed that Diaz was running from the officers
and did not obey their commands to stop, put his hands up, or
get on the ground. That Diaz was slowing down at the time
of the shooting does not compel the conclusion that he was
complying with the officers’ orders, nor does it prove that he
was preparing to shoot the officers. These are both
reasonable interpretations of the evidence. The jury was
entitled to choose between them based on their weighing of
the evidence and the witnesses’ credibility.

In sum, taking the evidence in the light most favorable to
Defendants, these facts do not warrant judgment for Plaintiffs
as a matter of law.
28 ESTATE OF DIAZ V. CITY OF ANAHEIM

III. CONCLUSION

Police shootings are often the most difficult—and
divisive—cases that our legal system and society encounter.
Wrapped in strong emotion and often opaque case law, they
can perplex even our most experienced trial judges, like the
judge in this case. To avoid the runaway case—like this one,
where the Defendants and their witnesses repeatedly
overstepped the judge’s rulings—courts should use
bifurcation to corral lawyers and witnesses, so the jury hears
only evidence relevant to the issues at hand. Here, that was
whether Officer Bennallack acted lawfully when he shot
Diaz. Because the jury heard considerable and inflammatory
evidence that had nothing to do with that question, we
REVERSE and REMAND this case for a new trial.