AMAsupplementalstatusreport

PAGE 1 – AUGUST 2023 SUPPLEMENTAL AUTHORITY ISO STATUS REPORT OF THE ALBINA MINISTERIAL ALLIANCE COALITION FOR JUSTICE AND POLICE REFORM J. ASHLEE ALBIES, OSB #051846 E-mail: ashlee@albiesstark.com ALBIES, STARK & GUERRIERRO 1 S.W. Columbia Street, Suite 1850 Portland, Oregon 97204 Phone: (503) 308.4770 Fax: (503) 427.9292 KRISTEN CHAMBERS, OSB#130882 kristen@prism-legal.com PRISM LEGAL LLC 3519 NE 15th Ave., Ste. 424 Portland, OR 97212 Phone: (503) 809-0902 Attorney for Amicus AMA Coalition for Justice and Police Reform IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION UNITED STATES OF AMERICA, Plaintiff, v. CITY OF PORTLAND, Defendant. Case No. 3:12-cv-02265-SI AUGUST 2023 SUPPLEMENTAL AUTHORITY IN SUPPORT OF STATUS REPORT OF THE ALBINA MINISTERIAL ALLIANCE COALITION FOR JUSTICE AND POLICE REFORM At the August 14, 2023 Status Conference, the Albina Ministerial Alliance Coalition for Justice and Police Reform (“AMA Coalition”) provided feedback on Defendant City’s Status Update, dkt. 373 at p. 4, specifically regarding the City’s “hir[e of] a national firm to continue to develop its trainers’ skills, through the Force Science Methods of Instruction Course, curriculum that is certified by the International Association of Directors of Law Enforcement Standards and Training.” While the AMA Coalition has not had the opportunity to review the referenced Force Science Methods Instruction Course, the AMA Coalition expressed concerns about the City Case 3:12-cv-02265-SI Document 383 Filed 08/14/23 Page 1 of 3

PAGE 2 – AUGUST 2023 SUPPLEMENTAL AUTHORITY ISO STATUS REPORT OF THE ALBINA MINISTERIAL ALLIANCE COALITION FOR JUSTICE AND POLICE REFORM using The Force Science Institute1 for its training curriculum, given that courts routinely exclude “experts” from this organization from offering expert testimony in use of force cases. A 2015 New York Times article questions the tactics and strategies of William Lewinski – founder of the Force Science Institute – for pushing a deeply distorted concept of the “action/reaction” and other principles, reporting that “an editor for The American Journal of Psychology called his work ‘pseudoscience’” and “[t]he Justice Department denounced his findings as ‘lacking in both foundation and reliability.’” Matt Apuzo, Training Officers to Shoot First, and He Will Answer Questions Later, N.Y. TIMES, August 1, 2015. Since then, Mr. Lewinski and other Force Science Institute “experts” have been excluded from testifying as experts in many federal use of force cases, as recently as March of 2023. In the in the case Tracy Alves v. Riverside County, et al., Central District of California District Judge Jesus Bernal, collected several cases excluding similar purported expert opinions, writing “[t]he Force Science Institute is widely regarded as a purveyor of unreliable pseudoscientific analysis engineered to justify officers’ use of force, and its studies, virtually all of which are non-peer reviewed and none of which have been published in reliable scientific journals, enjoy little or no acceptance within the relevant scientific community.” Alves v. Riverside County, et. al., 2023 WL 2983583, pp. 6-9 (D. C. CA) (March 13, 2023), attached hereto as Attachment 1. While the AMA Coalition has not reviewed the specific training identified by the City, questions remain as to whether the objectionable and unreliable practices of the Force Science Institute permeate its trainings and if so, should it be training PPB trainers and officers; and whether the City should be legitimizing an organization peddling junk science. / / / 1 The AMA Coalition assumes the Force Science Methods of Instruction Course is from the Force Science Institute; should this assumption be incorrect, the AMA Coalition withdraws this commentary. Case 3:12-cv-02265-SI Document 383 Filed 08/14/23 Page 2 of 3

PAGE 3 – AUGUST 2023 SUPPLEMENTAL AUTHORITY ISO STATUS REPORT OF THE ALBINA MINISTERIAL ALLIANCE COALITION FOR JUSTICE AND POLICE REFORM DATED: August 14, 2023. Respectfully submitted, /s/ J. Ashlee Albies J. Ashlee Albies, OSB # 051846 ashlee@albiesstark.com /s/ Kristen A. Chambers Kristen A. Chambers, OSB # 130882 kristen@prism-legal.com Case 3:12-cv-02265-SI Document 383 Filed 08/14/23 Page 3 of 3

Alves v. Riverside County, Slip Copy (2023) © 2023 Thomson Reuters. No claim to original U.S. Government Works. 1 2023 WL 2983583 Only the Westlaw citation is currently available. United States District Court, C.D. California. Tracy ALVES v. RIVERSIDE COUNTY, et al. Case No. EDCV 19-2083 JGB (SHKx) | Filed March 13, 2023 Attorneys and Law Firms John C. Burton, Matthew Sahak, Law Offices of John Burton, Pasadena, CA, Thomas Kennedy Helm, IV, Helm Law Office PC, Oakland, CA, Dale K. Galipo, Hang Dieu Le, Law Offices of Dale Galipo, Woodland Hills, CA, for Tracy Alves. Anthony M. Sain, Tori Lyn Noelani Bakken, Lewis Brisbois Bisgaard and Smith LLP, Eugene P. Ramirez, Garros Chan, Manning and Kass Ellrod Ramirez Trester LLP, Los Angeles, CA, Abigail McLaughlin, Lewis Brisbois Bisgaard and Smith LLP, Phoenix, AZ, for Riverside County, et al. Proceedings: Order (1) DENYING Defendants' Motion in Limine #4 (Dkt. No. 92); (2) DENYING Defendants' Motion in Limine #5 (Dkt. No 93); (3) GRANTING Plaintiff's Motion in Limine #1 (Dkt. No. 94); (4) GRANTING Plaintiff's Motion in Limine #2 (Dkt. No. 95); and (5) Ruling on Bifurcation, Consideration of Monell Issues and Proposed Verdict Forms (IN CHAMBERS) JESUS G. BERNAL, UNITED STATES DISTRICT JUDGE *1 Before the Court are two motions in limine filed by Defendants (“Defendants' MIL #4,” Dkt. No. 92; “Defendants' MIL #5,” Dkt. No. 93) and two motions in limine filed by Plaintiff (“Plaintiff's MIL #1,” Dkt. No. 94; “Plaintiff's MIL #2,” Dkt. No. 95) (collectively, “the Motions”). The Court finds the matters appropriate for resolution without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15. After considering the papers filed in support of and in opposition to the Motions, the Court DENIES Defendants' MIL #4, DENIES Defendants' MIL #5, GRANTS Plaintiff's MIL #1, and GRANTS Plaintiff's MIL #2. The Court also addresses related issues raised by the parties, namely Defendants' request to bifurcate the trial, the order in which the jury can consider the issues as they relate to potential Monell liability, and the parties' proposed verdict forms. I. BACKGROUND This is a Section 1983 case arising out of the death of Decedent Kevin R. Niedzialek brought by his successor in interest, Plaintiff Tracy Alves. On October 30, 2019, Plaintiff filed her complaint against Defendants Riverside County, Riverside Sheriff's Department, Sheriff-Coroner Chad Bianco, Deputy Sonia Gomez, Deputy Brian Keeney and Does 3-10, which she amended on July 17, 2020. (“Complaint,” Dkt. No. 1; “FAC,” Dkt. No. 34.) On May 17, 2021, Defendants filed a motion for summary judgment. (“MSJ,” Dkt. No. 59.) The same day, Defendants filed three motions in limine, seeking to exclude the opinions of Plaintiffs' experts Jeffrey Noble, Daniel Wohlgelterner, and Michael Freeman, respectively. (“Defendants' MIL #1,” Dkt. No. 61; “Defendants' MIL #2,” Dkt. No. 62; “Defendants' MIL #3,” Dkt. No. 63.) On July 26, 2021, Defendants filed their Motion in Limine #4. (“Defendants' MIL #4,” Dkt. No. 92.) The same day, Defendants filed their Motion in Limine #5. (“Defendants' MIL #5,” Dkt. No. 93.) Also on July 26, 2021, Plaintiff filed her Motion in Limine #1. (“Plaintiff's MIL #1,” Dkt. No. 94.) The same day, Plaintiff filed her Motion in Limine #2. (“Plaintiff's MIL #2,” Dkt. No. 95.) Plaintiff also filed a declaration of T. Kennedy Helm, IV in support of Plaintiff's motions in limine. (“Helm Declaration,” Dkt. No. 96.) On August 2, 2021, Defendants opposed Plaintiff's MIL #1. (“Opposition to Plaintiff's MIL #1,” Dkt. No. 99.) The same day, Defendants opposed Plaintiff's MIL #2. (“Opposition to Plaintiff's MIL #2,” Dkt. No. 100.) Also on August 2, 2021, Plaintiff opposed Defendants' MIL #4. (“Opposition to Defendants' MIL #4,” Dkt. No. 101.) Plaintiff also opposed Defendants' MIL #5. (“Opposition to Defendants' MIL #5,” Dkt. No. 102.) On August 2, 2021, Plaintiff filed a witness list. (“Plaintiff's Witness List,” Dkt. No. 103.) Case 3:12-cv-02265-SI Document 383-1 Filed 08/14/23 Page 1 of 13

Alves v. Riverside County, Slip Copy (2023) © 2023 Thomson Reuters. No claim to original U.S. Government Works. 2 On August 5, 2021, the Court issued an order granting in part and denying in part the MSJ and denying Defendants' MIL #1, MIL #2 and MIL #3. (“MSJ and First MILs Order,” Dkt. No. 109.)1 *2 On August 20, 2021, Defendants filed a motion for reconsideration of the MSJ and First MILs Order. (“First Motion for Reconsideration,” Dkt. No. 121.) On September 2, 2021, Defendants filed a notice of appeal of the MSJ and First MILs Order. (“Notice of Appeal,” Dkt. No. 128.) On September 8, 2021, Plaintiff filed an ex parte application for an order to certify Defendants' appeal as frivolous or waived and to drop or sever Defendants Sonia Gomez and Brian Kenney. (“Plaintiff's Ex Parte Application,” Dkt. No. 134.) On September 16, 2021, the Court stayed the proceedings pending appeal. (“Stay Order,” Dkt. No. 134.) On December 3, 2021, the Court granted Plaintiff's Ex Parte Application and dismissed Defendants Sonia Gomez and Brian Keeney from the action. (“Plaintiff's Ex Parte Application Order,” Dkt. No. 138.) On May 26, 2022, the Ninth Circuit Court of Appeals dismissed Defendants' appeal for lack of jurisdiction. (Dkt. No. 141.) On June 10, 2022, Defendants withdrew the First Motion for Reconsideration. (Dkt. No. 144.) On June 17, 2022, the Ninth Circuit's mandate issued. (Dkt. No. 147.) On July 18, 2022, Defendants filed an amended motion for reconsideration of the Court's MSJ and First MILs Order. (“Amended Motion for Reconsideration,” Dkt. No. 148.) On August 18, 2022, the Court denied the Amended Motion for Reconsideration. (“Order Denying Amended Motion for Reconsideration,” Dkt. No. 154.) On January 4, 2023, the Court held a status conference, during which it set a pretrial conference for March 13, 2023 and a jury trial for March 28, 2023. (Dkt. No. 158.) On February 24, 2023, Defendants filed a witness list. (“Defendants' Witness List,” Dkt. No. 159.) On March 6, 2023, Defendants filed an amended memorandum of contentions of fact and law. (“Defendants' Amended Memorandum of Contentions of Fact and Law,” Dkt. No. 160.) Defendants also filed a proposed verdict form. (“Defendants' Proposed Verdict Form,” Dkt. No. 161.) Defendants also filed their trial brief. (“Defendants' Trial Brief,” Dkt. No. 162.) Also on March 6, 2023, Plaintiff filed an amended memorandum of contentions of fact and law. (“Plaintiff's Amended Memorandum of Contentions of Fact and Law,” Dkt. No. 163.) Plaintiff also filed a proposed verdict form. (“Plaintiff's Proposed Verdict Form,” Dkt. No. 164.) On behalf of the parties, Plaintiff also filed a set of disputed and undisputed jury instructions. (“Jointly Proposed Undisputed Jury Instructions,” Dkt. No. 165; “Jointly Proposed Disputed Jury Instructions,” Dkt. No. 166.) Plaintiff finally filed a notice of lodging of a proposed pretrial conference order. (“Plaintiff's Proposed Pretrial Conference Order,” Dkt. No. 167.) On March 8, 2023, Plaintiff filed a trial brief with supplemental authority regarding Riverside Sheriff's Department's capacity to be sued. (“Plaintiff's Supplemental,” Dkt. No. 169.) On March 10, 2023, Defendants filed a response to Plaintiff's Supplemental. (“Response to Plaintiff's Supplemental,” Dkt. No. 169.) Also on March 10, 2023, Defendants filed a trial brief regarding objections to Plaintiff's proposed verdict form. (“Objections to Plaintiff's Proposed Verdict Form,” Dkt. No. 170.) II. LEGAL STANDARD A. Motions in Limine *3 Motions in limine are a well-recognized judicial practice based in “the court's inherent power to manage the course of trials.” Luce v. United States, 469 U.S. 38, 41 n.4 (1984). Regardless of its initial decision on a motion in limine, a court may revisit the issue at trial. See Fed. R. Evid. 103, advisory committee's note to 2000 Amendment (“Even where the court's ruling is definitive, nothing in the amendment prohibits the court from revisiting its decision when the evidence is to be offered.”); Luce, 469 U.S. at 41–42 (“[E]ven if nothing unexpected happens at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling.”). “[A] ruling on a motion in limine is essentially a preliminary opinion that falls entirely within the discretion of the district court.” United States v. Bensimon, 172 F.3d 1121, 1127 (9th Cir. 1999) (citing Luce, 469 U.S. at 41–42). B. Federal Rule of Evidence 702 Federal Rule of Evidence 702 (“FRE 702”) allows admission of “scientific, technical, or other specialized knowledge” by a qualified expert if four conditions are met: (a) the testimony Case 3:12-cv-02265-SI Document 383-1 Filed 08/14/23 Page 2 of 13