## Facts

- Ronald E. Bemis brought a 42 U.S.C. § 1983 action against Bend, Oregon police officers Tim Edwards, Leo Lotito, and Perry Aldrich, and against the City of Bend, alleging excessive force during his arrest.
- The incident occurred outside the home of Gary Estep in Bend, Oregon, after police responded to a report involving an armed situation near Estep’s residence.
- During the confrontation and arrest, Estep called 911 while events were unfolding outside his home.
- On the 911 recording, Estep made a statement describing what he believed was happening, including: “Now there’s a cop beating the shit out of the guy now.”
- Other portions of the 911 recording indicated uncertainty about what Estep personally observed, including a point where Estep said he could not personally describe what was occurring in front of his house.
- The recording also suggested Estep was repeating information from another person speaking in the background, rather than reporting solely from his own perception.
- Estep did not testify at trial.
- Bemis sought to introduce parts of the 911 recording to support his claim that officers used excessive force.
- The district court excluded the challenged excerpt(s), concluding Bemis did not establish an adequate foundation that Estep had personal knowledge of the events described.
- The case was tried to a jury, which returned a verdict for the defendants; Bemis appealed the evidentiary exclusion(s).

## Issues

1. Whether the district court abused its discretion by excluding the 911-call statement(s) describing a beating on the ground that the proponent failed to establish the declarant’s personal knowledge and an applicable hearsay exception (such as present sense impression or excited utterance).
2. Whether, even if exclusion was erroneous, the exclusion more likely than not affected the verdict, requiring reversal.

## Decision

- The Ninth Circuit affirmed the judgment for the defendants.
- The court held the district court acted within its discretion in excluding the challenged 911-call excerpt(s) because the proponent did not lay an adequate foundation that the caller personally perceived the events being described.
- The court rejected the argument that the statement necessarily qualified as a present sense impression or excited utterance when the record supported a finding that the caller may have been repeating secondhand information or lacked a clear basis for the description.
- The court concluded that, in any event, Bemis did not show prejudice warranting a new trial under the applicable harmless-error standard.

## Legal Principles

- Evidentiary rulings are reviewed for abuse of discretion, and reversal requires a showing that the error more likely than not affected the verdict.
- A proponent of evidence bears the burden of laying the foundation for admissibility, including demonstrating the declarant’s personal knowledge when required.
- Federal Rule of Evidence 602 (personal knowledge) limits testimony (and, by extension, supports exclusion of hearsay exceptions that depend on perception) where the declarant’s basis of knowledge is not established.
- A present sense impression under Federal Rule of Evidence 803(1) generally requires a statement that is nearly contemporaneous with the event and made with little chance for reflection, and it presupposes the declarant perceived the event described.
- An excited utterance under Federal Rule of Evidence 803(2) requires that the statement relate to a startling event and be made while the declarant is under the stress of excitement caused by the event; the trial court has discretion to decide whether the foundational conditions are met.
- Where a recording suggests the caller is repeating background voices or cannot personally describe what is occurring, a court may find the personal-knowledge foundation missing and exclude the statement.

## Conclusion

Bemis v. Edwards affirmed a defense verdict in a § 1983 excessive-force case, holding that the district court did not abuse its discretion in excluding a 911 caller’s real-time accusation of a beating because the proponent failed to establish the caller’s personal knowledge and a reliable hearsay exception, and any asserted error did not justify a new trial.


Bemis v. Edwards, 45 F.3d 1369 (1995)