Emmons

MEMORANDUM **

Appellant, Richard Emmons (“Appellant”), a Deputy Marshal in Orange County, filed suit under 28 U.S.C. § 1983 , alleging that the Orange County Marshal’s Department retaliated against him for the exercise of speech protected under the First Amendment. He challenged several Marshal’s Department regulations as facially unconstitutional. Appellant challenges the jury instructions and several evidentiary rulings because the trial judge did not allow him to present evidence of the Appellees’ strong resistance to abandoning their unconstitutional regulations.

Appellant also challenges the district court’s award of interim attorney’s fees, because he was not awarded fees for his successful efforts on appeal, or for time spent pursuing the fee motion itself.

Contested Evidence and Instructions

Appellant claims that the district court judge abused his discretion by failing to admit evidence of the litigation history of the 1991 regulations, including the facts that two courts had declared the regulations unconstitutional, that the defendants defied court orders and continued to promulgate and enforce them, even after they were ruled unconstitutional, and that numerous…

concurring in part and dissenting in part.

I respectfully disagree with the majority’s resolution of the Rule 403 issue. The litigation history of the 1991 regulations, and particularly the defendants’ stubborn resistance to affording its employees the very First Amendment rights at issue in this case, was the plaintiffs principal evidence that the defendants had both the motive and the intent to suppress First Amendment rights when they disciplined him. In fact, the defendants’ intent and motivation was the only issue at trial. Precluding the introduction of the disputed evidence deprived the plaintiff of a fan-opportunity to prove his case. At the very least, the evidence should have been admitted to impeach the credibility of the Marshal, who testified that he supported the plaintiffs free speech activities. The district judge excluded the evidence on the ground that its probative value was substantially outweighed by the danger of confusing the jury. I disagree. In this *446 case, the probative value of the excluded evidence was so important that it far outweighed the countervailing consideration. Moreover, the jury was clearly instructed that it could consider the…