Leslie Crawford v. City of Bakersfield ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LESLIE LARAY CRAWFORD, No. 16-17138
Plaintiff-Appellant,
D.C. No.
v. 1:14-cv-01735-
SAB
CITY OF BAKERSFIELD, a municipal
entity, and AARON STRINGER,
Officer, OPINION
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Stanley Albert Boone, Magistrate Judge, Presiding
Argued and Submitted February 6, 2019
San Francisco, California
Filed December 16, 2019
Before: Sidney R. Thomas, Chief Judge, Richard A. Paez,
Circuit Judge, and Gary Feinerman, * District Judge.
Opinion by Judge Feinerman
*
The Honorable Gary Feinerman, United States District Judge for
the Northern District of Illinois, sitting by designation.
2 CRAWFORD V. CITY OF BAKERSFIELD
SUMMARY **
Civil Rights
The panel vacated the district court’s judgment in favor
of defendants following a jury trial in an action brought
pursuant to 42 U.S.C. § 1983 and state law arising from a
police officer’s fatal shooting of plaintiff’s son, Michael
Dozer.
Plaintiff alleged that the district court abused its
discretion in excluding as irrelevant her testimony about her
percipient observations of Dozer’s past behavior, which she
offered to prove that police officer Stringer should have
recognized that Dozer was exhibiting signs of mental illness
at the time of their encounter and therefore that the shooting
was unreasonable.
The panel held that the district court abused its discretion
in holding that plaintiff’s proposed testimony was irrelevant
because Stringer, at the time of the shooting, did not know
about the past events to which plaintiff would have testified.
The panel noted that whether a suspect has exhibited signs
of mental illness is one of the factors a court will consider in
assessing the reasonableness of the force used. The panel
held that plaintiff’s testimony regarding Dozer’s past
behavior and treatment was relevant to whether he would
have appeared to be mentally ill on the day of the shooting,
and therefore whether Stringer knew or should have known
that Dozer was mentally ill.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
CRAWFORD V. CITY OF BAKERSFIELD 3
The panel rejected defendants’ argument that plaintiff’s
testimony was an improper lay opinion under Rule 701
because she lacked the expertise to offer a psychological or
psychiatric diagnosis. The panel held that so long as plaintiff
stopped short of opining that Dozer had a mental illness, she
was competent to testify about her own observations of and
experiences with her Dozer.
The panel held that the district court’s error in excluding
plaintiff’s testimony undercut her ability to prove a “central
component” of her case: that a reasonable officer in
defendant’s position would have recognized that Dozer was
mentally ill. The panel concluded that the evidentiary error
was not harmless, and that a new trial was warranted.
COUNSEL
Emily T. Kuwahara (argued), Daniel P. Wierzba, Joel
Mallord, and Alice Hall-Partyka, Crowell & Moring LLP,
Los Angeles, California, for Plaintiff-Appellant.
Michael G. Marderosian (argued) and Heather S. Cohen,
Marderosian & Cohen, Fresno, California, for Defendants-
Appellees.
4 CRAWFORD V. CITY OF BAKERSFIELD
OPINION
FEINERMAN, District Judge:
Leslie Crawford sued the City of Bakersfield, California
and Bakersfield police officer Aaron Stringer (together,
“Defendants”), bringing 42 U.S.C. § 1983 and state law
claims arising from Stringer’s fatal shooting of Crawford’s
son, Michael Dozer. After a three-day trial, the jury returned
a special verdict finding that Stringer did not use excessive
force or act negligently, and the district court entered
judgment for Defendants. Crawford appeals, contending
that the district court abused its discretion in excluding as
irrelevant her testimony about her percipient observations of
Dozer’s past behavior, which she offered to prove that
Stringer should have recognized that Dozer was exhibiting
signs of mental illness at the time of their encounter and
therefore that the shooting was unreasonable. We vacate the
judgment and remand for a new trial.
Background
Stringer, an on-duty police officer with the Bakersfield
Police Department, shot and killed Dozer at a gas station
while responding to calls reporting that Dozer “had poured
gasoline on a woman and tried to light her on fire.”
Crawford brought this suit on her own behalf and as Dozer’s
successor in interest, alleging Fourth Amendment excessive
force claims under § 1983 and state law wrongful death
claims.
A. The Shooting
At around 12:30 p.m. on August 6, 2014, Elsa Torres
was filling up her tank at a gas station. Dozer approached
Torres’s vehicle and removed the gas nozzle from the tank,
CRAWFORD V. CITY OF BAKERSFIELD 5
spraying some gas on her in the process. Dozer then sprayed
gas onto the ground around himself and set it on fire, creating
a flame that Torres said went “maybe up to his knees.”
Dozer also took off some of his clothes. Torres drove away,
called 911, and told the operator that there was a man “trying
to burn us.” While Torres was waiting for the police to
arrive, she saw Dozer go over to the area outside a nearby
minimart and start “knocking all the stuff down, like the
newspaper stands and stuff.”
Stringer was on patrol alone when he received a call
through dispatch that “a subject at the gas station . . . had
poured gasoline on a woman and tried to light her on fire”
and that the woman’s children were in her car. While
Stringer was on his way to the gas station, he received a
second call indicating that a woman “had been lit on fire and
that she put it out and left the scene.” It took Stringer
“[m]aybe a couple of minutes” to get to the gas station.
When Stringer arrived, he spoke with Torres, who by
that point was standing about fifty feet from Dozer. Stringer
did not observe on Torres any signs of burns, bruising, or
other physical injury, nor did Torres say that she had been
burned. Stringer spoke with another witness, who said that
Dozer had poured gasoline on Torres but who did not report
that anyone had been injured.
Stringer testified that by the time Torres identified
Dozer, Dozer had moved away from the gas pumps and
toward the minimart. The closest people to Dozer were
twenty feet away. As far as Stringer could see, Dozer did
not have any gasoline or incendiary liquids and was not
assaulting anyone, but instead was merely “pacing around”
the area, looking “very agitated.” Stringer thought that
Dozer’s behavior was “erratic” and “aggressive in general,”
but not aggressive toward Stringer in particular. Another
6 CRAWFORD V. CITY OF BAKERSFIELD
person at the scene, Rosalie Montiel, testified that Dozer was
“walking back and forth” and “looked unapproachable,” but
that she did not see him threatening anyone. Carlos Cabrera,
who was also at the scene, testified that Dozer was shouting,
hitting a table with his hands, standing up, and sitting back
down repeatedly—“kind of going around in circles.”
Cabrera also recounted that Dozer was staring at people and
saying “odd things.”
When Stringer approached Dozer, he did not think Dozer
was actively committing any crime while pacing around the
area near the minimart. Stringer did, however, consider “the
crime of assault with a caustic chemical” against Torres to
still be “in progress” because it “had just occurred seconds
. . . or minutes” before. Stringer testified that he had not
drawn a weapon at that point and had no intention of using
force, and that he merely wanted to talk to Dozer. Without
waiting for backup, Stringer moved closer so that he could
hear what Dozer was saying.
According to Stringer, Dozer said, “You want to do this.
Let’s go.” Stringer responded, “No, let’s not do this. I just
want to talk to you.” Dozer’s words, along with his pacing
and his “amped up” and “angry” demeanor, made Stringer
think that Dozer “was challenging [him] and had intended to
challenge [him] despite [his] clear uniform” identifying him
as a police officer. Stringer testified that he concluded that
Dozer was “under the influence of a narcotic and was visibly
agitated” and that the situation would “most likely . . .
escalate quickly,” leading him to call for expedited backup.
By that time, however, Stringer felt that he “didn’t have the
chance” to wait for backup, even though he knew from radio
transmissions that it was on the way.
Stringer stopped about twenty feet away from Dozer and
told him to get on the ground. Stringer testified that Dozer
CRAWFORD V. CITY OF BAKERSFIELD 7
then began moving toward him “very quickly,” picked up a
horseshoe-shaped bike lock, raised it over his head, ignored
an order to put it down, and started “charg[ing]” toward him
“quicker than [he] could back up.”
Stringer testified that he started backing up and drew his
handgun. Stringer was also carrying three nonlethal
weapons: a Taser that could fire darts at a range of up to
twenty-six feet, pepper spray, and a collapsible baton.
Stringer claimed that those alternatives were not viable
because they would take too long to deploy, as Dozer was
approaching him “with a deadly weapon,” the bike lock.
Ultimately, less than a minute after arriving on the scene,
Stringer shot Dozer. The first backup officer to arrive,
George Vasquez, was pulling up in his car when he saw the
shooting. Vasquez did not see Stringer backpedaling at any
point. He did, however, see Dozer moving toward Stringer,
and he believed based on Dozer’s “facial demeanor” and
“rapid movement,” as well as the fact that Dozer was holding
the bike lock “over his head,” that Dozer intended to harm
Stringer. Vasquez testified that Dozer and Stringer were
about five to ten feet apart at the time of the shooting.
The other eyewitnesses—Cabrera, Montiel, and
Torres—gave varying accounts of the lead-up to the
shooting, including testimony that conflicted with each
other’s and the officers’ accounts as to whether and how
quickly Dozer was moving toward Stringer; whether Dozer
was holding the bike lock at his side, holding it in his raised
hand, or swinging it at Stringer; how close Dozer got to
Stringer; and whether Stringer stayed put or backed away as
Dozer approached.
8 CRAWFORD V. CITY OF BAKERSFIELD
B. Stringer’s Training
As part of his training, Stringer received a Police Officer
Standards and Training (“POST”) certification. POST
teaches officers how to recognize symptoms of mental
illness and respond to people demonstrating those symptoms
without escalating the situation. As a requirement of POST,
Stringer was taught that erratic and irrational behavior and
attempted self-harm were indicators of mental illness. He
was trained that when responding to a situation involving a
person who appeared to be mentally ill, he should slow
down, wait for backup, and consider ways of subduing the
person using minimal force. He was also trained to
minimize the person’s anxiety by speaking slowly, moving
slowly, and turning down his radio.
C. Police Practices Experts
At trial, the parties presented testimony from dueling
police practices experts. Crawford’s expert, Scott DeFoe,
opined that Dozer’s “bizarre” behavior—approaching
Torres, pouring gasoline on himself, lighting himself on fire,
and then going over to the minimart and acting strangely—
would have led a reasonable officer to believe that Dozer
was “either mentally ill or experiencing a mental crisis.”
DeFoe did, however, acknowledge that Dozer’s spraying
gasoline on Torres and himself also could have been
consistent with his being under the influence of drugs.
DeFoe explained that while “officers are not going to
diagnose someone in the field,” they are taught to recognize
“what mental illness looks like.” DeFoe said that the
objective when dealing with a person who may be suffering
from mental illness is to “calm them down” and “just get
them handcuffed, with the least amount of force possible.”
CRAWFORD V. CITY OF BAKERSFIELD 9
Given this understanding of reasonable police practices,
DeFoe concluded that Stringer did “the opposite” of what he
should have done: “Instead of waiting for backup, instead of
considering less than lethal options, [Stringer] immediately
just almost at a rapid pace walked towards” Dozer. While
recognizing that it was “prudent” of Stringer to request
expedited backup, DeFoe faulted Stringer for failing to wait
for backup even though “time [was] on [his] side” in light of
the absence of continuing criminal activity. DeFoe opined
that Dozer posed no immediate threat because he was “over
there by himself,” with “no one else next to him,” thus
“mak[ing] it even more compelling that you need to get a
backup and get people before taking any action.”
Defendants’ expert, Curtis Cope, disagreed. In Cope’s
view, Dozer continued to pose “an immediate threat to the
citizens” when Stringer arrived on the scene, and Dozer then
confronted Stringer with the imminent threat of deadly force.
Cope acknowledged that officers are trained to recognize
signs of mental illness and respond accordingly, including
by calling for backup and moving slowly when
circumstances permit. Cope opined, however, that an officer
in Stringer’s shoes could not have been expected to “think
. . . immediately” that someone who “took a nozzle out of [a
victim’s] gas tank, might have gotten some gasoline on her,
put gasoline on himself, [and] started a fire right there at the
station” was mentally ill. Accordingly, Cope concluded that
Stringer had complied with all applicable standards and was
“right in doing what he did.”
D. Crawford’s Deposition Testimony Regarding
Dozer’s Past Behavior and Treatment
At her pretrial deposition, Crawford testified that Dozer
suffered from schizophrenia. Dozer often talked to himself,
and once asked Crawford, “[W]hy do these voices keep
10 CRAWFORD V. CITY OF BAKERSFIELD
messing with me?” After dropping out of high school during
his senior year, Dozer lived with Crawford and her husband
intermittently, typically staying for three to six months and
then leaving. At other times, Dozer stayed with his sisters
or “would just be like in the streets, wandering, talking to
his-self.”
Crawford recalled that Dozer had received counseling
and various medications from a healthcare provider called
Turning Point. The medications tended to work well for a
time—perhaps a month—but then would stop working. In
addition to taking him to Turning Point, Crawford and one
of Dozer’s sisters took him on multiple occasions to the
Mary K. Shell Mental Health Center, which Crawford
understood to be a “crisis center.” Crawford knew that
Dozer also went “a few times” to “3-B,” meaning the Kern
Medical Psychiatric Inpatient Unit in Bakersfield.
As far as Crawford was aware, Dozer’s only drug use
was smoking marijuana “for a little while.” Dozer told
Crawford that, at first, “the weed helped him with the voices
that he heard,” but it eventually stopped helping, so he
stopped using it.
E. The District Court’s Order Excluding
Crawford’s Testimony About Dozer’s Past
Behavior and Treatment
Defendants moved in limine to exclude “any reference
that [Dozer] was schizophrenic or suffered from any mental
illness,” arguing (as relevant here) that the evidence was
irrelevant and an improper lay opinion. Crawford responded
that evidence that Dozer’s behavior on the day of the
shooting was consistent with the signs of mental illness that
Stringer was trained to recognize was relevant to the critical
question whether Stringer’s use of force was reasonable.
CRAWFORD V. CITY OF BAKERSFIELD 11
The district court granted Defendants’ motion.
Crawford v. City of Bakersfield, 2016 WL 6038954 (E.D.
Cal. Oct. 14, 2016). The court rejected Defendants’
argument that any evidence of mental illness was necessarily
irrelevant, reasoning that whether Dozer’s behavior “was
due to being under the influence of a drug such as PCP” or
to mental illness “is relevant to determining whether the
force used in this instance was reasonable.” But the court
barred Crawford from testifying about her observations of
Dozer’s past behavior, reasoning that because Stringer had
no prior knowledge of Dozer, Crawford’s observations were
“not relevant to the issue of whether [Stringer] should have
known that [Dozer’s] behavior [leading up to the shooting]
could have been caused by mental illness.”
F. Jury Instructions and Closing Arguments
The court instructed the jury that, when determining
whether Stringer used excessive force, it should “consider
all of the circumstances known to Officer Stringer on the
scene, including . . . whether it should have been apparent to
Officer Stringer that the person he used force against was
emotionally disturbed.” During closing arguments,
Crawford’s counsel contended that the evidence “amply
supported” a finding that Stringer should have known that
Dozer was emotionally disturbed. Counsel directed the
jury’s attention to the evidence that Stringer was trained to
recognize signs of mental illness and respond accordingly,
as well as to the eyewitness accounts, which suggested that
it was apparent even without training that there was
“something wrong with Mr. Dozer.”
In their closing argument, Defendants seized on the lack
of evidence that Dozer was mentally ill—a lack of evidence
resulting from the district court’s exclusion of Crawford’s
12 CRAWFORD V. CITY OF BAKERSFIELD
testimony regarding her observations of Dozer’s past
behavior:
In this court of law, the Plaintiffs have the
burden of proof. They have to prove the case.
Have you heard any evidence from any
psychologist, psychiatrist, anyone that said
Mr. Dozer had any mental illness at all? You
haven’t heard any evidence on that. That’s
just [Plaintiff’s counsel’s] speculation. He
wants you to accept that Mr. Dozer was
mentally ill and that somehow means that
he’s to be treated differently. There’s been
no evidence that he was mentally ill, no
evidence at all.
In fact, what [Plaintiff’s counsel] wants you
to believe, well, his conduct demonstrated
that Officer Stringer should have known that
he was mentally ill. That conduct, as you
heard in the evidence, is consistent with drug
use as well, PCP use. . . .
....
And, again, on this issue of mental illness, no
evidence of that at all. Zero. If this really
was a case about how we treated or responded
to a mentally ill person, you would have seen
a medical doctor, a psychiatrist, a
psychologist come in and tell you that
they’ve either diagnosed Mr. Dozer or that
there was evidence of that. You’re being
asked to speculate on that, and . . . when
you’re asked to speculate, the Plaintiffs aren’t
CRAWFORD V. CITY OF BAKERSFIELD 13
carrying their burden by proving their case by
a preponderance of the evidence.
The jury returned a special verdict finding that Crawford
failed to prove that Stringer used excessive force or was
negligent, and the district court entered judgment for
Defendants. Crawford timely appealed.
Discussion
We have jurisdiction under 28 U.S.C. § 1291. Contrary
to Defendants’ suggestion that Crawford’s notice of appeal
is deficient because it identifies only the judgment and not
the order granting Defendants’ motion in limine, the in
limine order merges with the judgment and thus is properly
before us. See Hall v. City of Los Angeles, 697 F.3d 1059,
1070 (9th Cir. 2012).
“Evidentiary rulings are reviewed for abuse of
discretion.” Wilkerson v. Wheeler, 772 F.3d 834, 838 (9th
Cir. 2014). The district court’s application of the correct
legal standard is an abuse of discretion if it is “illogical,”
“implausible,” or “without support in inferences that may be
drawn from the facts in the record.” United States v.
Espinoza, 880 F.3d 506, 511 (9th Cir. 2018) (quoting United
States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en
banc)). In the civil context, an error will support reversal
only if it “more probably than not tainted the verdict.”
Wilkerson, 772 F.3d at 838 (internal quotation marks
omitted) (quoting Engquist v. Or. Dep’t of Argric., 478 F.3d
985, 1009 (9th Cir. 2007), aff’d, 553 U.S. 591 (2008)).
I. Relevance of Crawford’s Proposed Testimony
Evidence Rule 401 provides: “Evidence is relevant if:
(a) it has any tendency to make a fact more or less probable
14 CRAWFORD V. CITY OF BAKERSFIELD
than it would be without the evidence; and (b) the fact is of
consequence in determining the action.” Fed. R. Evid. 401.
Evidence Rule 402 provides that relevant evidence is
admissible unless another rule or federal law provides
otherwise, and that irrelevant evidence is inadmissible. Fed.
R. Evid. 402. Rule 401’s “basic standard of relevance . . . is
a liberal one.” Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579, 587 (1993); see also United States v.
Whitehead, 200 F.3d 634, 640 (9th Cir. 2000) (citing
Rule 401 for the proposition that relevance is a “minimal
requirement”); United States v. Curtis, 568 F.2d 643, 645
(9th Cir. 1978) (“Rule 401 . . . contains a very expansive
definition of relevant evidence.”).
Deciding whether a fact is “of consequence in
determining the action” generally requires considering the
substantive issues the case presents. See Fed. R. Evid. 401
advisory committee’s note to 1972 proposed rules
(“Relevancy is not an inherent characteristic of any item of
evidence but exists only as a relation between an item of
evidence and a matter properly provable in the case.”). Here,
Crawford alleged that Stringer used excessive force in
violation of the Fourth Amendment and that his actions were
negligent under California law.
In evaluating a Fourth Amendment excessive force
claim, the jury asks “whether the officers’ actions were
‘objectively reasonable’ in light of the facts and
circumstances confronting them.” Longoria v. Pinal Cty.,
873 F.3d 699, 705 (9th Cir. 2017) (alteration omitted)
(quoting Graham v. Connor, 490 U.S. 386, 397 (1989)).
That analysis requires balancing the “nature and quality of
the intrusion on the individual’s Fourth Amendment
interests against the countervailing governmental interests at
stake.” Vos v. City of Newport Beach, 892 F.3d 1024, 1030
CRAWFORD V. CITY OF BAKERSFIELD 15
(9th Cir. 2018) (quoting Graham, 490 U.S. at 396). “The
‘reasonableness’ of a particular use of force must be judged
from the perspective of a reasonable officer on the scene,
rather than with the 20/20 vision of hindsight.” Id. at 1031
(quoting Graham, 490 U.S. at 396). The “three primary
factors” in assessing the government’s interest are (1) “the
severity of the crime at issue,” (2) “whether the suspect
poses an immediate threat to the safety of the officers or
others,” and (3) “whether the suspect is actively resisting
arrest or attempting to evade arrest by flight.” Id. (alteration
and internal quotation marks omitted). These factors are not
exclusive. Id. at 1033.
Crawford’s wrongful death claim turned on similar
considerations. To prevail on her negligence theory,
Crawford had to show that Stringer “had a duty to use due
care, that he breached that duty, and that the breach was the
proximate or legal cause of the resulting injury.” Hayes v.
Cty. of San Diego, 305 P.3d 252, 255 (Cal. 2013) (quoting
Nally v. Grace Cmty. Church of the Valley, 763 P.2d 948,
956 (Cal. 1988)). Under California law, “peace officers have
a duty to act reasonably when using deadly force.” Id.
at 256. “The reasonableness of an officer’s conduct is
determined in light of the totality of circumstances.” Id.
California’s totality-of-the-circumstances inquiry includes
pre-shooting circumstances and thus “is broader than federal
Fourth Amendment law, which tends to focus more narrowly
on the moment when deadly force is used.” Id. at 263;
accord Mulligan v. Nichols, 835 F.3d 983, 991 (9th Cir.
2016) (“[N]egligence claims under California law
encompass a broader spectrum of conduct than excessive
force claims under the Fourth Amendment.”).
The district court correctly held that evidence of Dozer’s
mental illness was relevant because the reasonableness of
16 CRAWFORD V. CITY OF BAKERSFIELD
Stringer’s use of deadly force depended in part on whether
he knew or should have known that Dozer’s behavior was
caused by mental illness. Although we have “‘refused to
create two tracks of excessive force analysis, one for the
mentally ill and one for serious criminals,’ our precedent
establishes that if officers believe a suspect is mentally ill,
they ‘should make a greater effort to take control of the
situation through less intrusive means.’” Vos, 892 F.3d
at 1034 n.9 (alterations omitted) (quoting Bryan v.
MacPherson, 630 F.3d 805, 829 (9th Cir. 2010)).
Accordingly, “whether the suspect has exhibited signs of
mental illness is one of the factors the court will consider in
assessing the reasonableness of the force used, in addition to
the Graham factors, the availability of less intrusive force,
and whether proper warnings were given.” Id.; see also
Glenn v. Washington Cty., 673 F.3d 864, 875 (9th Cir. 2011)
(“Another circumstance relevant to our analysis is whether
the officers were or should have been aware that [the
individual] was emotionally disturbed.”); Deorle v.
Rutherford, 272 F.3d 1272, 1283 (9th Cir. 2001) (“Even
when an emotionally disturbed individual is ‘acting out’ . . . ,
the governmental interest in using [deadly] force is
diminished by the fact that the officers are confronted, not
with a person who has committed a serious crime against
others, but with a mentally ill individual.”).
The district court abused its discretion, however, in
holding that Crawford’s proposed testimony was irrelevant
on the ground that Stringer, at the time of the shooting, did
not know about the past events to which Crawford would
have testified. Crawford’s testimony regarding Dozer’s past
behavior and treatment was relevant to whether he was in
fact mentally ill at the time. Evidence that Dozer had
previously behaved in ways consistent with mental illness
and had been taken to mental health providers for treatment,
CRAWFORD V. CITY OF BAKERSFIELD 17
makes it more likely that he continued to suffer from mental
illness on the day of the shooting. In turn, whether Dozer
was in fact mentally ill that day is relevant to whether he
would have appeared to be mentally ill, and thus to whether
Stringer knew or should have known that Dozer was
mentally ill; after all, the existence of some underlying fact
tends to make it more likely that a person knew or should
have known that fact. See United States v. James, 169 F.3d
1210, 1214–15 (9th Cir. 1999) (en banc) (holding that
documents corroborating the stories that the defendant
claimed the decedent told her about the decedent’s past acts
of violence were relevant to her self-defense argument even
though she had never seen the documents, reasoning that the
truth of the decedent’s stories made it more likely (1) that he
had told them and (2) that the stories “had the ring of truth”
to the defendant). Thus, Crawford’s testimony about
Dozer’s past behaviors and treatment was relevant even
though Stringer had no knowledge of them. See Boyd v. City
& Cty. of San Francisco, 576 F.3d 938, 944 (9th Cir. 2009)
(“[W]here 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.”); see also
Estate of Escobedo v. Martin, 702 F.3d 388, 400 (7th Cir.
2012) (explaining that “evidence unknown to officers at the
time force was used” may be relevant in evaluating
credibility, such as by making it more or less likely that “a
suspect acted in the manner described by the officer”).
Accordingly, the district court abused its discretion in
excluding Crawford’s proposed testimony under Rules 401
and 402.
18 CRAWFORD V. CITY OF BAKERSFIELD
II. Alternate Ground for Excluding Crawford’s
Proposed Testimony
On appeal, Defendants contend that Crawford’s
testimony was an improper lay opinion under Rule 701
because she lacked the expertise to offer a psychological or
psychiatric diagnosis. That argument misses the point. As
Crawford notes, she was “not attempting to testify that her
son was diagnosed with schizophrenia.” And as the district
court correctly held, Crawford was competent to testify as a
lay witness “regarding her observations of” Dozer’s past
behavior. Thus, so long as Crawford stopped short of
opining that Dozer had a mental illness, she was competent
to testify about her own observations of and experiences
with Dozer. See Frisone v. United States, 270 F.2d 401, 403
(9th Cir. 1959) (distinguishing between a witness’s
admissible lay testimony “as to his faulty recollection and
poor memory” and inadmissible “testimony as to the
existence or treatment of a mental illness serious enough to
cause permanent memory impairment,” and noting that
“only expert testimony will be allowed on technical
questions of causation”).
III. Prejudicial Error
Defendants contend that any error in excluding
Crawford’s testimony was harmless. In a civil case, an
evidentiary error is prejudicial if it “more probably than not
tainted the verdict.” Wilkerson, 772 F.3d at 838 (quoting
Engquist v. Or. Dep’t of Agric., 478 F.3d 985, 1009 (9th Cir.
2007), aff’d, 553 U.S. 591 (2008)). Here, the district court’s
error undercut Crawford’s ability to prove a “central
component” of her case: that a reasonable officer in
Stringer’s position would have recognized that Dozer was
mentally ill. See id. at 841. The importance of the excluded
CRAWFORD V. CITY OF BAKERSFIELD 19
testimony makes “the likelihood of prejudice . . . difficult to
overcome.” Id.
As noted, the district court instructed the jury to consider
“whether it should have been apparent to Officer Stringer
that the person he used force against was emotionally
disturbed.” Granted, that factor appeared in a list of nine
nonexclusive factors for determining whether Stringer’s use
of force was reasonable. But given the facts and
circumstances of this case, we have little doubt that it played
an important role in the jury’s verdict.
Excluding Crawford’s testimony was prejudicial in at
least three ways. First, evidence suggesting that Dozer was
in fact mentally ill “could have provided the missing link to
establish” that a reasonable officer in Stringer’s position
would have realized that Dozer was mentally ill. Espinoza,
880 F.3d at 519. Without that link, Crawford had to ask the
jury to find that Stringer should have known something she
was unable to prove directly.
Second, DeFoe’s opinion that Stringer should have
recognized Dozer’s mental illness almost certainly would
have carried more weight had Crawford been able to present
evidence indicating that Dozer was in fact mentally ill. That
is particularly so given DeFoe’s acknowledgement that at
least some of Dozer’s behavior could also have been
consistent with his being under the influence of drugs—a
theory that Defendants seized on in their closing argument.
Crawford’s testimony would have bolstered DeFoe’s
opinion by making it more likely that Dozer’s behavior was
in fact a result of mental illness and thus more likely that his
behavior would have been viewed as such by a reasonable
officer at the scene. See Geurin v. Winston Indus., Inc.,
316 F.3d 879, 885 (9th Cir. 2002) (holding that the district
court’s erroneous exclusion from a products liability trial of
20 CRAWFORD V. CITY OF BAKERSFIELD
evidence that the product was improperly maintained by
non-parties “tainted the verdict” in that it prevented the
defendant “from providing the jury with an alternative
explanation,” thus “preordain[ing]” the jury’s verdict that a
design defect was the accident’s sole proximate cause).
Third, Crawford’s testimony would have deprived
Defendants of a powerful component of their closing
argument—their submission that Crawford’s mental illness
theory had “[z]ero” evidentiary support. Granted,
Defendants could still have suggested in closing that if
Dozer had truly been mentally ill, “you would have seen a
medical doctor, a psychiatrist, a psychologist come in and
tell you that they’ve either diagnosed Mr. Dozer or that there
was evidence of that.” But Defendants would not have been
able to argue that “[t]here’s been no evidence that he was
mentally ill, no evidence at all.” “[A]s this court has
recognized, ‘closing argument matters a great deal.’” United
States v. Bailey, 696 F.3d 794, 805 (9th Cir. 2012) (alteration
omitted) (quoting United States v. Kojayan, 8 F.3d 1315,
1323 (9th Cir. 1993)). Defendants’ emphasis in their closing
on the lack of evidence that Dozer was in fact mentally ill
reinforces its centrality to Crawford’s case.
Defendants’ argument that the error was harmless is
without merit. Reversing course from what they told the jury
in their closing, Defendants submit that there was so much
evidence of mental illness—the testimony about Stringer’s
training to recognize mental illness, DeFoe’s opinion that a
reasonable officer would have concluded that Dozer was
mentally ill, and the eyewitness testimony that Dozer
appeared disturbed—that Crawford’s excluded testimony
was unlikely to have made a difference to the verdict. But
as discussed above, the evidence that Crawford was allowed
to present carried far less weight than it would have had she
CRAWFORD V. CITY OF BAKERSFIELD 21
been able to provide testimony indicating that Dozer was in
fact mentally ill.
The case cited by Defendants to support their harmless
error argument, Smith v. City & Cty. of Honolulu, 887 F.3d
944, 953 (9th Cir. 2018), is distinguishable. In Smith, we
held that an improper reference during closing argument to
a “tub of additional substances” supposedly found on the
plaintiff’s property was “unlikely to have swayed the
jury”—which had, after all, heard witnesses characterize the
property as a drug warehouse—and was therefore harmless.
Id. Here, by contrast, Crawford does not contend that
Defendants’ closing argument was improper; rather, she
contends that Defendants’ emphasis on the absence of the
erroneously excluded evidence in their closing demonstrates
the importance of that evidence.
Finally, Defendants make a strawman argument,
suggesting that Crawford “would like this Court to take the
position that any use of deadly force against an individual
who is mentally ill is always unreasonable or unlawful.”
That is not what Crawford argues, nor do we adopt that
position simply by protecting her ability to offer relevant
evidence to prove an important but not dispositive factor in
the excessive force analysis.
Accordingly, the district court’s evidentiary error was
not harmless, and a new trial is warranted. The parties shall
bear their own costs.
VACATED and REMANDED.