Summary
finding that Plaintiff's consumption of 16 beers on the day in question and his drinking and alcoholism generally were "directly relevant to his ability to perceive and recount the incidents of the day in question"
Summary of this case from Alvarado v. Oakland Cnty.Opinion
Case No. 1:00-CV-482
April 12, 2002
Attorney(s) for Plaintiff(s), John M. Peters, Peters Peters, Bloomfield Hills, MI.
Attorney(s) for Defendant(s), Michael Lawrence Smith, Cummings, McClorey, Davis Acho, P.L.C. Williamsburg, MI.
ORDER
In accordance with the Opinion of this date;
IT IS HEREBY ORDERED that Defendants' Motion for Leave to File Motions in Limine (Dkt. No. 125) is GRANTED.
IT IS FURTHER ORDERED that Plaintiffs' Motion in Limine (Dkt. No. 113) is GRANTED.
IT IS FURTHER ORDERED that Defendants' First Motion in Limine (Dkt. No. 115) is DENIED.
IT IS FURTHER ORDERED that Defendants' Second Motion in Limine (Dkt. No. 116) is DENIED.
IT IS FURTHER ORDERED that Defendants' Third Motion in Limine (Dkt. No. 117) is DENIED.
IT IS FURTHER ORDERED that Defendants' Fourth Motion in Limine (Dkt. No. 118) is GRANTED.
IT IS FURTHER ORDERED that Defendants' Fifth Motion in Limine (Dkt. No. 119) is DENIED.
IT IS FURTHER ORDERED that Defendants' Sixth Motion in Limine (Dkt. No. 120) is DENIED.
IT IS FURTHER ORDERED that Defendants' Seventh Motion in Limine (Dkt. No. 121) is DENIED.
IT IS FURTHER ORDERED that Defendants' Eighth Motion in Limine (Dkt. No. 122) is DENIED.
IT IS FURTHER ORDERED that Defendants' Ninth Motion in Limine (Dkt. No. 123) is GRANTED.
IT IS FURTHER ORDERED that Defendants' Tenth Motion in Limine (Dkt. No. 149) is GRANTED IN PART AND DENIED IN PART.
OPINION
This matter is before the Court to resolve several motions in limine before trial. The instant trial involves claims brought pursuant to 42 U.S.C. § 1983 and state law for excessive force, false arrest, false imprisonment and malicious prosecution. Trial was originally scheduled for April 2002, but has been adjourned by Magistrate Judge Carmody until the June 2002 trial term at the request of the parties. The Court exercises discretion over matters involving the admissibility and relevancy of evidence at trial. United States v. Seago, 930 F.2d 482, 494 (6th Cir. 1991). The preferred method for doing so is, as in this case, by rulings in advance of trial so as to save court resources, permit an efficient presentation of proofs to the jury, and avoid jury prejudice. See Fed.R.Evid. 103.
As a preliminary matter, Defendants have moved for leave to file several motions in limine belatedly in that counsel, due to oversight, filed the motions six days late. Plaintiffs have not opposed the motion for leave. Defendants' motion for leave will be granted in that the delay was not lengthy; the delay was due to excusable neglect; and there will not be prejudice to Plaintiffs given the adjournment of trial. See Fed.R.Civ.Proc. 6(b).
Plaintiffs' Motion in Limine requests that there be no mention or reference to Plaintiffs criminal record, which consists of two convictions, both more than ten years old, for driving under the influence of alcohol and malicious destruction of property. Given the requirements of Federal Rule of Evidence 609, neither conviction may be used in these trial proceedings. See McHenry v. Chadwick, 896 F.2d 184 (6th Cir. 1990). Accordingly, Plaintiffs' Motion in Limine is granted.
Defendants' First Motion in Limine requests that the testimony of several witnesses — Mike LaFleur, Debbie Kruden, Leona Mitchell, Tammy Mullen, Eric Van Dussen, Scott Shoebridge, Ron Shoebridge, Don Tanner, George Larry Boyd, Sylvester Lee, Roger Townsend and Tom Ullom — be excluded under Federal Rules of Evidence 401 and 403 in that none of those witnesses has personal knowledge of the events alleged creating liability in the suit ( i.e., the acts against Plaintiffs) and that their sundry complaints against Benzie County are irrelevant and prejudicial. Plaintiffs indicate that these witnesses will be called for the purpose of establishing that Benzie County had at the time of the incidents a custom of ignoring citizen complaints concerning officer misconduct. The Court also understands that, in connection with this testimony, Plaintiffs will offer an expert witness on police supervision and management, Michael Cosgrove, who is expected to opine that the incidents in question reflect that Benzie County had insufficient training and that the lack of training and the custom of permitting officer misconduct promoted the alleged officer misconduct in this case.
While it is difficult to assess the testimony based on the parties' general characterizations of it, the anticipated testimony falls within legitimate theories for establishing liability as to Benzie County. See Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994) (holding that a county may be liable based on failure to train upon a showing that there was a failure to train, that the inadequate training was the result of deliberate indifference, and that the inadequate training was the moving force causing the injury); Berry v. City of Detroit, 38 F.3d 282, 286-287 (6th Cir. 1994) (describing similar requirements for liability based upon a tacit custom). Thus, for example, federal courts have upheld liability based on customary policies of ignoring citizen complaints and failure to train. See Berry, 25 F.3d 1342, 1355 (6th Cir. 1994) (citing Spell v. McDaniel, 824 F.2d 1380 (4th Cir. 1987); Fiacco v. City of Rensselaer, 738 F.2d 319 (2nd Cir. 1986); and Zuchel v. The City and County of Denver, 997 F.2d 730 (10th Cir. 1993)). As such, the testimony will be permitted.
Defendants' Second Motion in Limine requests that Plaintiffs not be allowed to cross-examine witness David Cape about his history of alcoholism and substance abuse, his pending drunk driving charge, and his history of psychological treatment. Defendants assert that such cross-examination is not proper given the strictures of Rule 609. Plaintiffs indicate in response that David Cape had 16 beers on the day in question and that his drinking and alcoholism are directly relevant to his ability to perceive and recount the incidents of the day in question. Plaintiffs also indicate that should Cape have a third (felony) drunk driving conviction within the last 10 years, then such would be proper cross-examination under Rule 609. Plaintiffs' positions are well-founded. Defendants' Motion will be denied, although Plaintiffs are instructed not to inquire into a drunk driving conviction without first ascertaining with defense counsel that the conviction meets the time ( i.e., 10-year time limit) and punishment requirements ( i.e., offense punishable by more than one-year incarceration) of Rule 609.
Defendants' Third Motion in Limine requests that the Court exclude testimony as to the conduct of Defendant Whale. Defendants take the position that testimony as to Whale's conduct is irrelevant and prejudicial in that he did not directly arrest or apply force against Russ Townsend. Defendants also assert that Plaintiffs should not be permitted to question Whale about his history of depression and medical treatment. Plaintiffs intend to offer testimony against Whale to prove that he, as the officer in charge, failed to supervise his fellow officers in applying force, that he caused Russ Townsend's arrest without probable cause, and that he contributed to the abusive conduct by taunting Russ Townsend during his booking. Plaintiffs assert that such testimony is relevant to both Defendant Townsend's potential liability and to the liability of the County. Plaintiffs also indicate that the medical records of Whale into which they wish to inquire are already matters of public record and, as such, are not privileged. The Court assumes from this discussion that the medical records relate to Whale's condition on the day of the incidents in question. Plaintiffs also seek to use evidence of other misconduct by Whale (involving the witnesses with complaints about Benzie County police misconduct) for the purpose of establishing lack of training, ineffective supervision of officers and de facto policies encouraging police misconduct. Because Plaintiffs have proper legal theories for the introduction of this evidence, Defendants' Third Motion in Limine will be denied. However, the Court will certainly entertain at trial appropriate requests for limiting instructions so as to put into context the purpose for which certain evidence is offered.
Defendants' Fourth Motion in Limine seeks to exclude testimony concerning the fact that Plaintiff Russ Townsend took and passed a polygraph examination. Defendants state, correctly, that evidence of polygraph examinations are, generally, excluded under Rule 403 as unduly prejudicial and not sufficiently probative. See United States v. Sherlin, 67 F.3d 1208, 1216 (6th Cir. 1995) (excluding evidence that defendant passed polygraph); see also United States v. Murray, 784 F.2d 188, 188-89 (6th Cir. 1986); Wolfel v. Holbrook, 823 F.2d 970, 972-975 (6th Cir. 1987); United States v. Blakeney, 942 F.2d 1001, 1014 (1991); see also United States v. Scheffer, 523 U.S. 303 (1998) (upholding per se rule in court martial proceedings excluding polygraphs as unreliable). Plaintiffs have failed to answer the motion and have failed to give any reason why the general rule of inadmissibility should not be followed. As such, Defendants' Fourth Motion in Limine will be granted.
Defendants' Fifth Motion in Limine seeks to limit testimony concerning discipline and citizen complaints against Defendant Deputy Lamerson. Again, as stated above, Plaintiffs seek to use this testimony to establish Defendant Benzie County's failure to train, failure to supervise and de facto policies permitting officer misconduct. For the reasons stated above, the Motion will be denied and the evidence permitted.
Defendants' Sixth Motion in Limine seeks to limit testimony concerning the conduct of nondefendant deputies and county employees. Plaintiffs seek to use this evidence as part of their proof of failure to training, failure to supervise, and de facto policies permitting officer misconduct. This Motion will be denied for the reasons stated above.
Defendants' Seventh Motion in Limine seeks to limit testimony concerning lawsuits filed by officers of Benzie County against either Benzie County or other officers of Benzie County. Plaintiffs' purpose in offering this testimony is to show admissions by the Defendants which support inferences that the some of the Defendant officers were unfit for duty, that the Defendant officers were poorly trained and managed, and that there was a de facto policy of not responding to complaints about officer misconduct. These points are very relevant to this suit. Also relevant is the County's notice of the alleged problems in the Sheriffs office gleaned from the suits. The County's notice goes to the issue of its deliberate indifference in failing to respond to citizen complaints about the incidents of ongoing officer misconduct. For the reasons identified above, the Court will permit the testimony generally. However, the Court will also entertain reasonable requests for limiting instructions and requests to limit the testimony should it be presented in a manner which confuses the issues to be decided.
Defendants' Eighth Motion in Limine seeks to exclude from testimony statements made by former Sheriff Vance Bates, Defendant Tom Whale and present Sheriff Robert Blank in campaign literature, newspaper letters and articles. Plaintiffs seeks to use these statements to cross-examine these witnesses' testimony about the supervision, training and management of the Sheriffs department in that these statements reflect opinions contrary to the positions they have taken in this litigation. The Court agrees that the statements may be used for the purpose of cross-examination under Federal Rule of Evidence 613. While the statements may be used for that purpose, the Court cautions Plaintiffs to use the statements circumspectly and to avoid use of statements other than by the witnesses themselves. The Court also is willing to consider reasonable limiting instructions on this subject.
Defendants' Ninth Motion in Limine seeks to limit testimony that after the incidents giving rise to this lawsuit Plaintiff Russ Townsend complained to Sheriff employees about his treatment and that internal policies for documenting and investigating citizen complaints were completely ignored by the employees. Plaintiffs seek to offer the testimony to prove that Sheriff employees ignored the official complaint policy. While the Court agrees that proof of a custom of ignoring citizen complaints pre-dating the incidents in question can be offered to prove that Benzie County tolerated a custom of ignoring citizen complaints, the same is not true of complaints post-dating the incident. Those complaints do not have any tendency to prove that on the earlier date the County had a custom which was the moving force behind the allegedly unlawful acts. As such, Defendants' Ninth Motion in Limine will be granted.
Defendants' Tenth Motion in Limine seeks to exclude the testimony of attorney James Hunt, the former criminal attorney for Russ Townsend. Attorney Hunt's testimony consists of both factual testimony and opinion testimony. The factual testimony relates to statements made by the Benzie County prosecutor relating to the failed criminal prosecutions and investigations, statements by Russ Townsend that he was not pleading guilty because he was not guilty, and statements of Lynn Townsend that Russ Townsend did not assault her on the day in question. The opinion testimony consists of Hunt's opinions about police procedures and about whether the officers had probable cause to arrest and prosecute the Townsends. Although it is indicated that Hunt has been a criminal defense attorney for 25 years, there is no indication that he has any training as to police management. There is also no indication that he has ever previously given expert opinions on the subjects at issue.
In Berry, the Sixth Circuit Court of Appeals rejected opinion evidence on the question of whether there was "deliberate indifference" because:
Although an expert's opinion may "embrace an ultimate issue to be decided by the trier of fact[,]" Fed.R.Evid. 704(a), the issue embraced must be a factual one. The expert can testify, if a proper foundation is laid, that the discipline in the Detroit Police Department was lax. He also could testify regarding what he believed to be the consequences of lax discipline. He may not testify, however, that the lax discipline policies of the Detroit Police Department indicated that the City was deliberately indifferent to the welfare of its citizens.
It would have been easy enough for the drafters of the Federal Rules of Evidence to have said that a properly qualified expert may opine on the ultimate question of liability. They did not do so. When the rules speak of an expert's testimony embracing the ultimate issue, the reference must be to stating opinions that suggest the answer to the ultimate issue or that give the jury all the information from which it can draw inferences as to the ultimate issue. We would not allow a fingerprint expert in a criminal case to opine that a defendant was guilty (a legal conclusion), even though we would allow him to opine that the defendant's fingerprint was the only one on the murder weapon (a fact). The distinction, although subtle, is nonetheless important.
Furthermore, "deliberate indifference" is a legal term, as the questioning of Postill indicated. It is the responsibility of the court, not testifying witnesses, to define legal terms. The expert's testimony in this regard invaded the province of the court.
Berry, 25 F.3d at 1353.
Similar to the holding in Berry, Circuit Courts of Appeals have rejected the use of expert testimony as to whether there was "probable cause" for an arrest precisely because this is a "legal issue" and is not a factual matter necessitating scientific or technical expert testimony. See, e.g., Stuart v. United States, 23 F.3d 1483, 1487 (9th Cir. 1994) (rejecting use of expert to opine as to "probable cause" because jury was better situated to make that determination); Peterson v. City of Plymouth, 60 F.3d 469, 475 (8th Cir. 1995) (rejecting use of expert to opine on "probable cause" because it was a legal issue for the court to instruct upon and the jury to decide); Estes v. Moore, 993 F.2d 161, 163 (8th Cir. 1993) (affirming exclusion of expert opinion about "probable cause" because it represented an unhelpful legal conclusion). This reasoning is apt here. Legal standards such as "probable cause" will be sufficiently defined by this Court without the need for expert testimony. Also, the workings of the criminal process in general can be sufficiently explained by counsel and by this Court without a need for resort to expert testimony. As such, the opinion evidence will be excluded.
Hunt's factual testimony concerning admissions of prosecutors is also not helpful. Plaintiff already intends to call the prosecutors themselves such that the testimony appears redundant. Also, because the prosecutors are not parties to this case, it is likely that their admissions to Hunt are inadmissible hearsay. Therefore, the Defendants' Tenth Motion in Limine will be granted with one exception. If the statements of the Townsends to Hunt are properly offered under Federal Rule of Evidence 801(d)(1)(B) to rebut a charge of recent fabrication, then such testimony will be received. Otherwise, use of those statements are unnecessary because the Townsends themselves can testify as to their own conduct, observations and decisions.
Accordingly, an Order shall enter resolving the motions as stated above.