Maliek Rosier, individually v. City of Huntington Beach, a governmental entity

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MALIEK ROSIER, individually,
Plaintiff-Appellant,
v.
CITY OF HUNTINGTON BEACH, a
governmental entity; MATTHEW REZA,
individually; ALEXANDER DURHAM,
individually,
Defendants-Appellees.
No. 20-55379
D.C. No.
8:18-cv-02175-DOC-DFM
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Argued August 6, 2021
Pasadena, California
Before: PAEZ, CALLAHAN, and HURWITZ, Circuit Judges.
In this 42 U.S.C. § 1983 excessive force case, Maliek Rosier (“Rosier”)
appeals the judgment of the district court. Rosier argues that: (1) the district court
abused its discretion by permitting the government to question him on cross-
examination about whether he had been stabbed in the intervening time between
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
AUG 31 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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the encounter at Huntington Beach and the trial, and (2) the district court erred by
instructing the jury that the scope of Rosier’s state-law negligence claim was the
same as that of the Fourth Amendment standard for excessive force.
We review a district court’s evidentiary rulings for abuse of discretion and
reverse “only if the exercise of discretion was ‘manifestly erroneous and
prejudicial.’” Microsoft Corp. v. Motorola, Inc., 795 F.3d 1024, 1056 (9th Cir.
2015) (emphasis in original) (citation omitted). We review de novo whether a jury
instruction correctly states the law. United States v. Berry, 683 F.3d 1015, 1020
(9th Cir. 2012). Finding no abuse of discretion or error, we affirm.
1. The district court did not abuse its discretion in permitting evidence of a
stabbing incident in which Rosier was injured. First, the stabbing incident was
relevant and probative regarding the history of Rosier’s emotional injuries, and
thus, damages. See Fed. R. Evid. 401, 402. Second, the probative value of the
evidence was not substantially outweighed by any prejudicial effect. See Fed. R.
Evid. 403; Old Chief v. United States, 519 U.S. 172, 180 (1997).
Defendants introduced the evidence of the stabbing while cross-examining
Rosier about the emotional trauma he testified that he experienced after his arrest.
Rosier was the victim in the stabbing incident, not the perpetrator, and the question
posed by Defendants about the stabbing made that clear. Further, before
Defendants inquired about the stabbing, the parties stipulated to the single question

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that would be posed to Rosier. Even assuming that the evidence may have had
some prejudicial effect, its probative value was not substantially outweighed by the
danger of unfair prejudice. See Fed. R. Evid. 403.
2. Rosier requested a negligence jury instruction based on Hayes v. Cty. of San
Diego, 160 Cal. Rptr. 3d 684 (Cal. 2013). Hayes held that “[l]aw enforcement
personnel’s tactical conduct and decisions preceding the use of deadly force are
relevant considerations under California law in determining whether the use of
deadly force gives rise to negligence liability.” Id. at 697 (emphases added). Here,
Rosier’s negligence claim was not based on the use of deadly force. Because
Hayes is limited to a claim involving deadly force, the district court correctly
instructed the jury that under California law, finding for Defendants on Rosier’s
Fourth Amendment excessive force claim would necessarily yield the same result
for his negligence claim.
AFFIRMED.

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