Opinion
Argued and Submitted September 10, 2001.
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Father brought a § 1983 excessive force claim against California Highway Patrol officers who shot and killed his son after a car chase. The United States District Court for the Central District of California Robert J. Timlin, J. granted in limine order excluding evidence concerning whether the son was armed, and denied motions for mistrial, and father appealed. The Court of Appeals held that: (1) father waived issue as to grant of motion in limine, and (2) the district court did not abuse its discretion in denying father's motions for mistrial after defense counsel violated the in limine order.
Affirmed. Appeal from the United States District Court for the Central District of California Robert J. Timlin, District Judge, Presiding.
Before B. FLETCHER, T.G. NELSON, and BERZON, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
This case involves a 42 U.S.C. § 1983 excessive force claim against California Highway Patrol officers who shot and killed Dennis H. Rippey's son after an extended car chase. Rippey appeals the district court's in limine order excluding evidence concerning whether Rippey's son was armed or not at the time of the shooting and the court's denials of Rippey's motions for mistrial after the defendants violated the order in closing arguments to the jury. We conclude that Rippey waived the first issue and that the district court did not abuse its discretion regarding the second. Accordingly, we affirm.
Defendants filed a motion in limine asking the court to exclude any evidence showing that Rippey's son had been unarmed. Rippey filed no written opposition and offered no arguments when the district court ruled on the motion. Moreover, the record shows that Rippey agreed with the defendants' argument that evidence concerning whether Rippey's son was armed or not was not relevant to the case. The court granted the motion and Rippey acceded without objection. By failing to object or offer opposing arguments, Rippey plainly waived the issue. We will not consider on appeal, therefore, whether the district court erred in granting the defendants' motion in limine.
The district court and the parties discussed only substantive relevance. Neither raised the separate question of whether the evidence was relevant for impeachment purposes. See generally Sherrod v. Berry, 856 F.2d 802, 806-07, 810-11 (7th Cir.1988) (en banc) (discussing the relevance of similar evidence for impeachment purposes). Because Rippey failed to preserve the issues, we do not reach either question.
See Cabrera v. Cordis Corp., 134 F.3d 1418, 1420 (9th Cir.1998); Hawaiian Rock Products Corp. v. A.E. Lopez Enterprises, 74 F.3d 972, 976 (9th Cir.1996); Winston v. United States, 342 F.2d 715, 724 (9th Cir.1965).
Accordingly, we do not reach defendants' cross-appeal or Rippey's argument that the cross-appeal was not properly filed.
We also conclude that the district court did not abuse its discretion in denying Rippey's motions for mistrial made after defense counsel violated the court's in limine order during his closing argument. The district court gave adequate curative instructions after defendants made statements in closing argument implying that Rippey had been, in fact, armed. In addition, during Rippey's closing argument, his attorney also violated the in limine order by flatly stating that "[t]here was no gun." The curative instruction and the statement by Rippey's counsel, in combination, demonstrate that Rippey was not prejudiced by defendants' violations of the in limine order. Accordingly, the district court did not abuse its
See United States v. Randall 162 F.3d 557, 559 (9th Cir.1998) ("Ordinarily, cautionary instructions ... are sufficient to cure the effects of improper comments, because juries are presumed to follow such cautionary instructions.")
Page 704.
discretion in denying Rippey's mistrial motions.
Rippey's motion requesting sanctions is DENIED.
AFFIRMED.