EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, June 13, 2008

Former Charger's Trial Will Not Be Supercharged: Judge Find Character Evidence Inadmissible In Steve Foley's Suit Against Officer Who Shot Him

Pursuant to the ruling of Superior Court Judge Richard Strauss, jurors deciding the case between former San Diego Charger linebacker Steve Foley and the police officer who shot him will neither hear about two prior violations of state law by the officer, nor about two prior run-ins with the law by Foley.  The facts of the case are as follows:

On Labor Day weekend, 2006, off-duty Coronado police officer Aaron Mansker trailed Foley's car to his Poway home based upon suspicion that Foley was driving while intoxicated and a threat to others.  Officer Mansker claimed that upon arrival at Foley's home, Foley approached him and reached into his pants in a threatening manner, prompting Mansker to shoot him three times in self-defense.  These gunshots prompted Lisa Maree Gaut, a passenger in Foley's car, to jump into the driver's seat of his Oldsmobile Cutlass and drive the car toward Mansker.  Gaut claimed that she was simply trying to defend Foley, but a jury disagreed last April, convicting her of assault with a deadly weapon (the Oldsmobile) and drunken driving (Foley was acquitted of the more serious charge of assault on a peace officer).

Meanwhile, Foley pleaded guilty to drunk driving in connection with the incident, which ended his NFL career.  At the same time, he claimed that he in no way threatened Mansker and thus sued the officer and the City of Coronado for excessive force and negligence.  Different groups have different takes on the incident, with Mother's Against Drunk Driving honoring Mansker, in part for his actions in pursuing Foley, and the ACLU being outspoken in its criticism of the San Diego District Attorney's handling of the incident.  Pursuant to the pre-trial ruling of Judge Strauss, however, the trial on Foley's allegations will not include evidence about these groups' positions, nor will it include the following evidence:

     -the fact that Mansker's father was killed by a drunken driver when Mansker was a teenager living in Escondido;

     -the fact that Masnker had violated state law and department policy at least twice by pursuing suspected drunken drivers while off duty; and

     -the fact that Foley had at least two prior encounters with the law -- both while allegedly intoxicated (including an incident with Foley's pit bulls).

So, why was this evidence deemed inadmissible?  The answer lies in California Code of Evidence Section 1100, which states that "[e]xcept as otherwise provided by statute, any otherwise admissible evidence (including evidence in the form of an opinion, evidence of reputation, and evidence of specific instances of such person's conduct) is admissible to prove a person's character or a trait of his character."  In other words, evidence of Mansker's past vigilante-style justice is inadmissible to prove that he had a "Temperance Wish," which he acted upon when he pursued and shot Foley.  Meanwhile, evidence of Foley's prior encounters with the law is inadmissible to prove that he had a propensity to cause problems with the law enforcement officials while intoxicated and thus that he threatened Mansker while drunk.

Now, it's possible that both sides tried to admit this evidence under California Code of Evidence 1101(b), which states that "[n]othing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act."

Under this rule, Foley might have claimed, inter alia, that Mansker had a common plan or scheme of meting out vigilante style justice on drunk drivers, and Mansker might have clamed that Foley had a common plan or scheme of getting drunk and instigating the police.  But it seems to me that neither had enough prior acts and that their prior acts were not similar enough to establish a distinctive enough pattern to allow for the admissibility of the evidence.  Thus, I think that the judge's ruling was proper.



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