David Edward Weed, an individual; JAMES WILLIAM WEED, an individual v. City of Seattle, a municipal corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID EDWARD WEED, an individual;
JAMES WILLIAM WEED, an individual,
Plaintiffs - Appellants,
v.
CITY OF SEATTLE, a municipal
corporation; TERRY DUNN, in his
capacity as a police officer for the City of
Seattle and as an individual; DALE
DAVENPORT, in his capacity as a police
officer for the City of Seattle and as an
individual,
Defendants - Appellees.
No. 12-35191
D.C. No. 2:10-cv-01274-RSM
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, District Judge, Presiding
Submitted August 28, 2013**
Seattle, Washington
Before: HAWKINS, McKEOWN, and CLIFTON, Circuit Judges.
FILED
AUG 30 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

-- 1 of 4 --

David and James Weed (collectively “Weed”) appeal a jury verdict in favor
of the City of Seattle, Officer Terry Dunn, and Officer Dale Davenport
(collectively “defendants”). Weed claims that the defendants violated the Fourth
Amendment and state trespass and battery laws when they responded to a noise
disturbance at Weed’s home. We have jurisdiction under 28 U.S.C. § 1291, and
we affirm.
Weed argues that the district court’s evidentiary ruling excluding Officer
Dunn’s prior misconduct and disciplinary history was an abuse of discretion that
was prejudicial. It was not an abuse of discretion for the district court to exclude
this evidence under Federal Rule of Evidence 403 because the initial finding of
excessive force and imposition of disciplinary action against Officer Dunn, were
later reversed on appeal. See Wicker v. Oregon ex rel. Bureau of Labor, 543 F.3d
1168, 1173 (9th Cir. 2008). As the district court explained, “Officer Dunn’s
overturned suspension would be more prejudicial than probative in this case, since
the jury would likely not give due weight to the fact that the suspension was
overturned.” We give the district court “broad discretion” for this determination.
Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384 (2008).
The defense attorney did not open the door to the introduction of Officer
Dunn’s disciplinary incidents through statements made during closing argument.
-2-

-- 2 of 4 --

Weed does not contest the veracity of defense attorney’s remarks that Officer Dunn
had responded to hundreds of noise ordinance violations without incident. Defense
counsel’s statements that Officer Dunn had been “putting on the uniform” for
“[t]hirty-one years” and referring to him as a “reasonable police officer[],” referred
only to Officer Dunn’s history of responding to noise complaints, and did not call
for the introduction of Officer Dunn’s overturned misconduct record to rebut any
false impression that might have resulted. See United States v. Whitworth, 856
F.2d 1268, 1285 (9th Cir. 1988) (“Under the . . . ‘opening the door’ doctrine, the
introduction of inadmissible evidence by one party allows an opponent, in the
court’s discretion, to introduce evidence on the same issue to rebut any false
impression that might have resulted from the earlier admission.”).
Weed also appeals the district court’s denial of his motion for a new trial
under Federal Rule of Civil Procedure 59(a)(1). We review a district court’s denial
of a motion for a new trial for abuse of discretion and generally only reverse if the
record contains no evidence in support of the verdict or if the district court made a
mistake of law. Molski v. M.J. Cable, Inc., 481 F.3d 724, 728–29 (9th Cir. 2007).
Neither occurred here. As the district court acknowledged, “[t]his was a close
case,” with sharply conflicting testimony about the events that transpired the night
of Weed’s arrest. Because the jury was entitled to credit the testimony of defense
-3-

-- 3 of 4 --

witnesses, it was not an abuse of discretion for the district court to deny the motion
for a new trial.
AFFIRMED.
-4-

-- 4 of 4 --