NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALEX AGUILAR, JR., et al., 

Plaintiffs-Appellants, 

 v. 

CITY OF LOS ANGELES, et al., 

Defendants-Appellees.

No. 19-55764

D.C. No. 

2:17-cv-04382-CBM-MRW

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

Consuelo B. Marshall, District Judge, Presiding

Argued and Submitted January 15, 2021

Pasadena, California

Before: CALLAHAN and WATFORD, Circuit Judges, and RAKOFF,** District 

Judge.

Dissent by Judge CALLAHAN

On June 9, 2016, Alex Aguilar was arrested by officers of the Los Angeles 

Police Department (“LAPD”), including Officers Matthew Medina and Sergio

Melero, for a nonviolent misdemeanor. At the police station, Aguilar attempted to 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Jed S. Rakoff, United States District Judge for the 

Southern District of New York, sitting by designation.

FILED

MAR 26 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
Page 2 of 11

swallow a bindle of heroin. Then, within one minute, Medina tased Aguilar five 

times and Melero punched Aguilar three times in the cheek. Aguilar struggled to 

breathe and lost consciousness. He died soon after.

The LAPD conducted an in-custody death investigation. The majority of the 

LAPD Use of Force Review Board recommended finding that the use of force was 

consistent with LAPD policy, but a minority opinion recommended finding that 

Medina’s taser use violated LAPD policy. The LAPD Chief of Police recommended 

that the Department endorse the minority position because “an officer with similar 

training and experience as Officer Medina would not reasonably believe Aguilar’s 

actions were violent or posed an immediate threat to himself or others at the time 

Officer Medina applied the TASER to Aguilar’s back.” The Chief recommended 

finding that the taser use was not “objectively reasonable” and was therefore “Out 

of Policy.” The Board of Police Commissioners, LAPD’s governing body, 

unanimously agreed with the Chief’s recommendations.

The decedent’s family then brought this lawsuit against the City of Los 

Angeles, Medina, Melero, and other officers allegedly involved in the incident. 

Plaintiffs intended to offer into evidence at trial “the LAPD’s post-incident findings 

that Defendant Medina’s use of the taser during the underlying incident was 

objectively unreasonable and ‘out of policy’” (the “LAPD Findings”). However, the 

trial court granted defendants’ motion in limine to exclude the LAPD Findings. We 
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review the trial court’s evidentiary rulings for abuse of discretion. Wicker v. Oregon 

ex rel. Bureau of Labor, 543 F.3d 1168, 1173 (9th Cir. 2008). However, we review 

de novo legal conclusions on which the trial court’s evidentiary rulings depend

because “[a] district court by definition abuses its discretion when it makes an error 

of law.” Koon v. United States, 518 U.S. 81, 100 (1996).

The trial court excluded the LAPD Findings for two reasons. First, it held

that the LAPD Findings were inadmissible as a subsequent remedial measure. 

Federal Rule of Evidence 407 protects parties that take “remedial measures” 

following an incident—i.e., measures that “would have made an earlier injury or 

harm less likely to occur”—by preventing factfinders from considering such 

measures to prove “culpable conduct.” Fed. R. Evid. 407. Examples of remedial 

measures include “subsequent repairs, installation of safety devices, changes in 

company rules, and discharge of employees.” Fed. R. Evid. 407 advisory 

committee’s note. For instance, in Maddox v. City of Los Angeles, 792 F.2d 1408 

(9th Cir. 1986), this Court affirmed the district court’s determination that a 

“disciplinary proceeding [against a police officer] constituted a remedial measure.” 

Id. at 1417. 

Here, by contrast, the LAPD conducted an in-custody death investigation, not 

a disciplinary proceeding. If the LAPD Findings had prompted disciplinary action, 

policy changes, or the like, then evidence of those subsequent remedial actions 
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would have been inadmissible to prove culpable conduct. But the LAPD Findings 

themselves were retrospective, not remedial; they assessed what happened and 

whether the officers’ actions were consistent with LAPD policy, without meting out 

discipline or changing LAPD policy. Therefore, the trial court’s holding that Rule 

407 compelled exclusion of the LAPD Findings was legal error.

The district court also excluded the LAPD Findings under Federal Rule of 

Evidence 403, which permits exclusion of “relevant evidence if its probative value 

is substantially outweighed by a danger of . . . unfair prejudice[.]” Fed. R. Evid. 

403. The trial court’s ruling was brief: “Balancing pursuant to 401, 402, and 403, 

the Court finds the [LAPD Findings] [are] more prejudicial than probative.” The 

trial court then quoted Maddox, 792 F.2d at 1417, for the proposition that “[t]he jury 

might have given unfair or undue weight to this evidence or they might have been 

confused as to the relevance of this evidence.”1 Finally, the trial court included a 

“see also” citation to a district court case, Vazquez v. City of Long Beach, 2016 WL 

1 The trial court also quoted Maddox’s reasoning that “the jury might have inferred 

that Officer Harris was guilty of wrongdoing merely because the Police Department 

conducted disciplinary proceedings.” 792 F.2d at 1417. But, as noted, the LAPD 

Findings were not disciplinary proceedings; they announced the LAPD’s 

conclusions following an investigation into Aguilar’s death. A reasonable juror 

would recognize that the LAPD’s decision to investigate an in-custody death did not 

necessarily imply any officer’s culpability, so this reasoning from Maddox is

inapposite. Moreover, other evidence at trial revealed to the jurors the existence of 

this investigation.
Page 5 of 11

9114912, at *2 (C.D. Cal. Apr. 19, 2016).

2 We infer from the citations and 

explanatory parentheticals that the trial court’s Rule 403 determination rested on two 

bases: that the LAPD Findings were likely to produce juror confusion and that they 

may have been afforded undue weight.

The jury might have been confused by the fact that LAPD policy on the use 

of force parallels closely, if not completely, the § 1983 standard. They might have 

struggled to differentiate between two inquiries—whether the officers’ use of force 

was objectively reasonable (the ultimate question under § 1983) and whether the 

officers complied with LAPD policy (a separate, relevant, but not dispositive 

question). The trial court permitted opinion testimony on the latter question, but not 

2 The trial court noted that the Vazquez court excluded certain post-incident findings, 

holding that they were “hearsay” and “not relevant or admissible,” (quoting Vazquez,

2016 WL 9114912 at *2 (internal quotation marks omitted)). The trial court in this 

case did not state that it was relying on those rationales, nor could it reasonably have 

done so. No party argues that the LAPD Findings are inadmissible hearsay. And 

the LAPD Findings are plainly relevant because, in assessing whether an officer 

acted reasonably in the use of force, a juror can reasonably consider whether the 

officer complied with police department policy. The LAPD Findings are probative 

on that issue.

The trial court also noted that the Vazquez court reasoned that “conclusions in the 

report were based on evidence collected during the investigation which may or may 

not be the same evidence the jury would be exposed to at trial.” While this 

observation applies also to this case, it cannot reasonably support excluding the 

LAPD Findings. To the extent the LAPD Findings were based on evidence not 

presented to the jury, the defendants could have sought to introduce such evidence. 

To the extent the jury was presented with evidence not before the LAPD, the 

defendants could have made that straightforward point in their closing arguments.
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the former. The LAPD Findings might have introduced confusion because they 

answered both questions, concluding that Medina’s taser use was “Out of Policy” 

because the force was not “objectively reasonable.” The merger of these standards 

might have confused jurors and heightened the chance that jurors would have 

deferred to LAPD insiders (like the Board of Commissioners) on the ultimate 

question presented.

The trial court’s in limine rulings drew a line to attempt to prevent such juror 

confusion: the court permitted the introduction of evidence regarding whether the 

officers complied with LAPD policy but excluded evidence regarding whether the

officers’ use of force was objectively reasonable. For example, the defense sought 

to introduce the opinion of its expert, James Katapodis, that Medina’s taser use was 

objectively reasonable. Consistent with its exclusion of the LAPD Findings, the 

district court excluded such testimony, finding that “[w]hether Medina’s use of the 

taser was reasonable is a question for the jury.”3

In addition to the risk of confusion, the trial court also found that jurors might 

have assigned the LAPD Findings undue weight. Although the defendants could 

have introduced the Use of Force Review Board’s majority opinion, showing that 

3 We infer from the trial court’s quotation of Maddox that its Rule 403 determination 

rested on a risk of confusion between the two questions. If, by contrast, the trial 

court had excluded the LAPD Findings solely because they opined on an ultimate 

issue, then this would have been an abuse of discretion. Rule 704 of the Federal 

Rules of Evidence permits opinions that embrace an ultimate issue. 
Page 7 of 11

LAPD officers disagreed about the reasonableness of Medina’s taser use, the fact 

remains that LAPD’s governing body unanimously found that Medina violated 

LAPD policy. The jurors might have given such an admission overwhelming 

weight. Plaintiffs respond that the LAPD Findings are akin to a party admission by 

the City of Los Angeles, so any prejudice arising therefrom is fair. This argument 

is not without force, but plaintiffs sought to introduce the LAPD Findings against all

defendants, not just the City. Against the individual officers, at least, the district 

court reasonably found that the evidence could have been given undue weight.

Although a reasonable jurist could have disagreed, nevertheless, we cannot 

say that the trial court’s conclusion that the LAPD findings presented a risk of juror 

confusion and might have been accorded undue weight was an abuse of discretion.

Thereafter, however, circumstances changed as the trial proceeded. The 

defense chose to elicit expert testimony that undermined the bases for the district 

court’s in limine ruling and opened the door for introduction of the LAPD Findings. 

Specifically, defense expert Katapodis testified that LAPD policy is based on 

objective reasonableness and that Medina’s taser deployments complied with LAPD 

policy. He then explicitly testified that Medina’s taser deployments were 

reasonable, violating the trial court’s in limine ruling. The trial court struck 

Katapodis’s testimony that the use of force was reasonable, and we presume that the 
Page 8 of 11

jury obeyed the court and disregarded Katapodis’s answer that Medina’s use of force 

was reasonable.

Nevertheless, striking that answer did not preclude the jury from connecting 

the dots Katapodis had already drawn. Indeed, this is why experts are in fact 

permitted to give their opinion on ultimate questions. See Fed. R. Evid. 704. LAPD

policy requires objectively reasonable use of force. In Katapodis’s view, Medina’s 

taser use complied with LAPD policy. Ergo, in Katapodis’s view, Medina’s taser 

use was a reasonable use of force. Katapodis’s testimony erased the distinction the 

trial court had attempted to draw between compliance with LAPD policy, on the one 

hand, and the objectively reasonable use of force, on the other, inviting the same 

potential jury confusion on which the trial court reasonably relied in excluding the 

LAPD Findings. If the plaintiffs had been permitted to introduce the LAPD Findings 

on cross-examination, the risk of additional juror confusion would have been 

minimal.

Katapodis’s testimony also changed the “undue weight” analysis. 

Unsurprisingly, plaintiffs and defendants offered dueling expert opinions regarding 

whether Medina’s taser use complied with LAPD policy. However, Katapodis did 

not merely claim expertise; he testified that he was a 35-year veteran of the LAPD 

who participated in the drafting of the use-of-force policy and implied that he could 

offer the LAPD’s own view regarding the officers’ conduct. (“[O]ur policy is based 
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on objectively [sic] reasonableness. So in our policy, given the same set of facts and 

circumstances that an officer had at the time that they used the force we take a look 

at it to see if the force options that they used were reasonable or not. And that’s the

policy of the department.”) By itself, such testimony would be innocuous; after all, 

jurors were informed that Katapodis was a paid, external consultant. However, since 

the jury was presented with this testimony without the context of the LAPD 

Findings, the jury was left with a misleading impression regarding the LAPD’s own 

view of Medina’s conduct. Given Katapodis’s apparent insider expertise and the 

exclusion of the LAPD Findings, there was a substantial risk that the jury might 

wrongly have concluded that the LAPD thought that Medina’s use of force complied 

with LAPD policy. This substantial risk of a misunderstanding increased the 

probative value of the LAPD Findings and decreased the likelihood that they would 

be given undue weight.

In sum, Katapodis’s testimony raised the very same issues that supported the 

trial court’s in limine ruling: possible juror confusion and possible undue weight 

assigned to the opinion of someone purportedly able to speak for the Department. 

At that point, the probative value of the LAPD Findings was no longer substantially 

outweighed by the risk of unfair prejudice. By continuing to exclude the LAPD 

Findings, the district court abused its discretion.
Page 10 of 11

When a district court abuses its discretion by excluding evidence, this Court 

will reverse unless we find that “the jury’s verdict is more probably than not 

untainted by the error.” Haddad v. Lockheed California Corp., 720 F.2d 1454, 1459 

(9th Cir. 1983). Here, we cannot so find.

The district court instructed the jury that plaintiffs had to prove only one 

contested element to prevail on their § 1983 claim: that “the acts or failure to act of 

the defendant officer deprived Plaintiffs of their particular rights under the United 

States Constitution[.]”4

 Central to that determination was the jury’s assessment of 

whether the officers used reasonable force. As previously noted, Katapodis’s 

testimony invited the jury to conclude that, while external consultants (like 

plaintiffs’ expert) might disagree, those who could speak authoritatively about 

LAPD policy condoned Medina’s taser use. If the jury had known, however, that 

the LAPD itself viewed Medina’s conduct as a violation of LAPD policy, then that 

likely would have altered the jury’s assessment regarding whether a reasonable 

officer in Medina’s shoes would have tased Aguilar five times. Because we cannot 

4 When a plaintiff proves a deprivation of a constitutional right by an officer acting 

under color of state law, regardless of causation and harm, (s)he will prevail and will 

recover at least nominal damages. See Farrar v. Hobby, 506 U.S. 103 (1992); 

Engebretson v. Mahoney, 724 F.3d 1034, 1038 (9th Cir. 2013). If the jury had ruled 

for the plaintiff, then it also would have been tasked with measuring damages, which 

would have required the jury to assess, for example, whether an unreasonable use of 

force caused Aguilar’s death. However, we do not consider issues of causation or 

damages in assessing whether the verdict was tainted by error because plaintiffs had 

no obligation to prove either to prevail under § 1983.
Page 11 of 11

conclude that the jury’s verdict is more probably than not untainted by the erroneous 

exclusion of the LAPD Findings, we must vacate and remand for a new trial. See 

Pau v. Yosemite Park & Curry Co., 928 F.2d 880, 888 (9th Cir. 1991).

VACATED AND REMANDED.
Alex Aguilar, Jr. v. City of Los Angeles, et al., No. 19-55764 

CALLAHAN, Circuit Judge, dissenting:

I agree with the majority that the trial court’s in limine ruling excluding the 

Los Angeles Police Department’s post-incident findings was not an abuse of 

discretion. However, I disagree with its determination that the testimony of 

Katapodis, defendants’ expert, shifted the balance so that the continued refusal to 

admit the post-incident findings became an abuse of discretion.

The majority recognizes that the court struck Katapodis’ testimony that the 

use of force was reasonable, and that we presume that the jury followed the court’s 

instructions. But they express concern that “striking that answer did not preclude 

the jury from connecting the dots.” Even though they recognize that “this is why 

experts are in fact permitted to give their opinion on ultimate questions,” the 

majority concludes that this testimony changed the “undue weight” analysis, and 

that the district court abused its discretion “[b]y continuing to exclude the LAPD 

Findings.”

I disagree. First, plaintiffs were entitled to use their expert to rebut 

Katapodis’ testimony concerning the propriety of the officers’ conduct and his 

knowledge of LAPD’s policy. Second, Katapodis’ testimony did not change the 

fact that admitting the LAPD’s post-incident findings would not likely assist the 

jury and might well confuse it. The majority of the LAPD Use of Force Review 

FILED

MAR 26 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
Board recommended finding that the use of force was consistent with LAPD 

policy, but the LAPD Chief of Police and ultimately the Board of Police 

Commissioners endorsed the contrary minority position. I cannot conclude that 

excluding such detailed post-incident findings, containing contradictory 

determinations, was an abuse of discretion. Accordingly, I dissent.