Geraldine Burley, et al v. Jefferey Gagacki, et al

Filing

OPINION and JUDGMENT filed : AFFIRMED. Decision for publication. Richard F. Suhrheinrich, John M. Rogers, and Richard Allen Griffin (AUTHORING), Circuit Judges. [14-2482, 14-2542]

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 16a0203p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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GERALDINE BURLEY; CAROLINE BURLEY,
Plaintiffs-Appellants/Cross-Appellees,
v.

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JEFFERY GAGACKI; SHAWN REED,
Defendants-Appellees/Cross-Appellants,
BRIAN WOLOSKI; PATRICK BROWNE,
Defendants-Appellees.

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Nos. 14-2482/2542

Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:10-cv-10555—Bernard A. Friedman, District Judge.
Argued: August 4, 2016
Decided and Filed: August 22, 2016
Before: SUHRHEINRICH, ROGERS, and GRIFFIN, Circuit Judges.
_________________
COUNSEL
ARGUED: David G. Blake, ROMANO LAW, P.L.L.C., Pleasant Ridge, Michigan, for
Appellants/Cross-Appellees. Anne McClorey McLaughlin, JOHNSON, ROSATI, SCHULTZ &
JOPPICH, P.C., Farmington Hills, Michigan, for Appellees/Cross-Appellants. G. Gus Morris,
MCGRAW MORRIS P.C., Troy, Michigan, for Appellee Woloski. Julie Quiland Dufrane,
CITY OF TROY, Troy, Michigan, for Appellee Browne. ON BRIEF: Stanley I. Okoli,
ROMANO LAW, P.L.L.C., Pleasant Ridge, Michigan, for Appellants/Cross-Appellees. Anne
McClorey McLaughlin, JOHNSON, ROSATI, SCHULTZ & JOPPICH, P.C., Farmington Hills,
Michigan, for Appellees/Cross-Appellants. G. Gus Morris, MCGRAW MORRIS P.C., Troy,
Michigan, for Appellee Woloski. Julie Quiland Dufrane, CITY OF TROY, Troy, Michigan, for
Appellee Browne.

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_________________
OPINION
_________________
GRIFFIN, Circuit Judge.

Following a remand for a new trial, Burley v. Gagacki,

729 F.3d 610 (6th Cir. 2013), the jury found that defendants did not participate in the police raid
that resulted in plaintiffs’ claims of excessive force. Plaintiffs appeal several of the district
court’s pre-trial rulings regarding the new trial. Finding none of the issues meritorious, we
affirm.
I.
Plaintiffs contend that the law enforcement personnel who executed a search warrant at
their house used excessive force upon them when securing the house. In our prior opinion, we
described plaintiffs’ allegations as follows:
[Plaintiffs] were inside their home located at 20400 Greeley Street in the City of
Detroit on June 13, 2007, when they heard a loud boom. When Geraldine Burley
came upstairs from the basement, an officer put a gun to her face and said “[g]et
on the floor.” She explained that she needed to ease herself to the floor because
she had undergone two knee replacements. At that point, another officer
appeared, ordered Geraldine to the floor, and shoved her into the table. She hit
her head, shoulder, neck, and back against the table as she fell to the ground.
Another officer walked on top of her body. When Geraldine’s adult daughter,
Caroline, heard the loud boom and entered the living room, an officer allegedly
put a gun to her face and told her, “[s]top, put your hands up.” The officer threw
her against the wall and onto the floor. When he placed his foot on her back,
Caroline hollered, “[g]et your feet out [of] my back. I’ve had back surgeries.”
Sometime thereafter, another officer placed his foot on her back, and Caroline
again explained that she had undergone back surgeries.
Id. at 614.
The offending officers exacerbated the situation by intentionally concealing their
identities. Specifically, “the officers were dressed in black clothing with their faces covered
except for their eyes, concealing their identities. When Geraldine Burley asked for the officers’
names, one of the officers was about to write them down when another officer stopped him and
said, ‘No, just put Team 11.’” Id. Subsequently, plaintiffs learned that “Team 11” was part of a

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vast multi-law enforcement operation involving Wayne County, and federal, state, and municipal
law enforcement agents. Id. at 613, 614–15. In this regard, it took over two years for Wayne
County to disclose an investigation report that purportedly revealed the identities of the officers
who executed the search warrant. Id. at 614–15. Moreover, the present federal defendants “did
not affirmatively assert their lack of involvement in the raid” during “the initial stages of
discovery.” Id. at 615. “It was only in their depositions, after the limitations period had run, that
the[y] . . . alleged that they did not participate in the raid of plaintiffs’ home but were instead
executing a search warrant” nearby. Id.
In plaintiffs’ previous appeal, we reversed the district court’s entry of a directed verdict.
Id. at 617, 622. In so doing, we expressed our dismay regarding the manner in which the alleged
perpetrators concealed their identities to plaintiffs’ detriment: “[W]e are not inclined to shield
the federal defendants from liability as a reward for their unethical refusal to identify themselves
by name and badge number.” Id. at 622. To this end, we considered, but did not decide, whether
this court should adopt a burden-shifting approach similar to the approach taken by the Ninth
Circuit in Dubner v. City & Cty. of San Francisco, 266 F.3d 959 (9th Cir. 2001), whereby once a
plaintiff in an unlawful arrest case meets her burden on the issue of unlawful arrest, the burden of
production then shifts to officers to produce evidence of probable cause. This burden-shifting
approach, reasoned Dubner, “prevent[s] this exact scenario where police officers can hide behind
a shield of anonymity and force plaintiffs to produce evidence they cannot possibly acquire.” Id.
at 965 (footnote omitted).
On remand, the district judge declined to apply Dubner’s burden-shifting paradigm,
reasoning that Dubner does not extend beyond false arrest claims. He also refused to disqualify
himself from the case, assessed juror expenses related to one of the plaintiffs’ non-forthcoming
trial delay, and entered several in limine orders. At trial, the jury heard testimony from plaintiffs
and the defendant federal officers, and thereafter returned a verdict finding that defendants did
not “participate in the raid of plaintiffs’ home.” Plaintiffs filed a timely notice of appeal,

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appealing six orders: the burden-shifting order; the disqualification order; and four orders
regarding in limine motions.1
II.
First, we turn to plaintiffs’ primary issue on appeal—the district court’s decision not to
apply Dubner’s burden-shifting regime. After remand, the Burleys significantly broadened our
suggestion, asking the district court not to “shift[] the burden of production onto the federal
agents to establish their lack of involvement,” Burley, 729 F.3d at 613, but rather that the district
court “impose the burden of which amongst the Defendants personally inflicted the harm
complained of by the Plaintiffs upon the Defendants themselves.” The district court declined,
finding Dubner inapplicable to excessive force claims. As a result, plaintiffs contend, the
subsequent trial was “toothless.” Plaintiffs’ motion addressed the jury instructions—i.e., who
bears the burden of persuasion regarding defendants’ involvement and the force used; because
the correctness of jury instructions is a question of law, we review this issue de novo. Gibson v.
City of Louisville, 336 F.3d 511, 512 (6th Cir. 2003).
In Dubner, the plaintiff claimed San Francisco police officers falsely arrested her at a
demonstration. 266 F.3d at 962–64. Because she was unable to identify the officers who
arrested her, she filed § 1983 false arrest claims against all the officers listed on her arrest report.
Id. at 963–64. Apparently, the City of San Francisco had a practice of listing officers who
arrived first on scene as arresting officers—even if they did not participate in the arrest—in order
to “deliberately . . . frustrate the efforts of potential plaintiffs in false arrest cases to establish lack
of probable cause.” Id. at 964–65. After a bench trial, the district court found that the plaintiff
could not prove her arrest’s unlawfulness based upon her inability to conclusively identify her
arresting officers. Id. at 964.
The Ninth Circuit reversed, relying upon cases that shift the burden of production
regarding the existence of probable cause to a defendant upon the showing of a warrantless
arrest. Id. at 965. In such instances, the Ninth Circuit reasoned, “[i]f the defendant is unable or
1

Defendants Gagacki and Reed also cross-appeal a portion of the district court’s jury instructions.
However, we need not address the cross-appeal given our ruling that plaintiffs’ appeal is not meritorious. Martin
Cty. Coal Corp. v. Universal Underwriters Ins. Co., 727 F.3d 589, 598 (6th Cir. 2013).

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refuses to come forward with any evidence that the arresting officers had probable cause and the
plaintiff’s own testimony does not establish it, the court should presume the arrest was
unlawful.” Id. “This minimal burden shifting forces the police department, which is in the better
position to gather information about the arrest, to come forward with some evidence of probable
cause. . . . By shifting the burden of production to the defendants, we prevent this exact scenario
where police officers can hide behind a shield of anonymity and force plaintiffs to produce
evidence that they cannot possibly acquire.” Id. (footnote omitted).
On appeal, plaintiffs present an expansion and variation on Dubner.

Specifically,

plaintiffs claim that the district court erred in refusing to shift the burden of persuasion to
defendants regarding who amongst them committed excessive force during the raid, and thus
erred when it instructed the jury that plaintiffs “must prove by a preponderance of the evidence
that each of the defendants was personally involved in the conduct that the plaintiffs complain
about.” Plaintiffs contend that the jury instructions “impose[d] an insurmountable burden.”
Accordingly, they argue equity dictates that defendants bear the burden of persuasion in order to
give meaning to the principle that “no man may take advantage of his own wrong.”2 We
disagree.
First, Dubner’s burden-shifting paradigm, while not unique to the Ninth Circuit,3 is
contrary to our approach to false arrest claims. “[A] warrantless arrest by a law officer is
reasonable under the Fourth Amendment where there is probable cause to believe that a criminal
offense has been or is being committed.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004). We
have consistently held that “[i]n order for a wrongful arrest claim to succeed . . . , a plaintiff must
prove that the police lacked probable cause.” Fridley v. Horrighs, 291 F.3d 867, 872 (6th Cir.
2002) (emphasis added). Indeed, we have upheld the dismissal of a false arrest claim where a
plaintiff was unable to “clearly identify” the police officer who made the arrest because she was
2

To the extent plaintiffs rely upon the equitable estoppel doctrine discussed by the Ninth Circuit in Estate
of Amaro v. City of Oakland, 653 F.3d 808 (9th Cir. 2011), they have forfeited this argument by virtue of not having
raised it below in their motion to shift the burden, United States v. Archibald, 589 F.3d 289, 295 (6th Cir. 2009), and
have abandoned it by not explaining on appeal how the doctrine applies in this case. Vander Boegh v.
EnergySolutions, Inc., 772 F.3d 1056, 1063 (6th Cir. 2014).
3

See, e.g., Dubner, 266 F.3d at 965 (citing Gilker v. Baker, 576 F.2d 245, 246 (9th Cir. 1978); Martin v.
Duffie, 463 F.2d 464, 467 (10th Cir. 1972); Patzig v. O’Neil, 577 F.2d 841, 849 n.9 (3d Cir. 1978); Dellums v.
Powell, 566 F.2d 167, 175–76 (D.C. Cir. 1977)).

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“unable to prove which defendant had violated her rights.” Thacker v. City of Columbus,
328 F.3d 244, 258–59 (6th Cir. 2003). Dubner, seeing the burden of proof differently on
probable cause, makes it distinguishable.
Second, the Ninth Circuit has subsequently cabined Dubner’s holding to wrongful arrest
claims. In Johnson v. Bay Area Rapid Transit District, 724 F.3d 1159 (9th Cir. 2013), our sister
circuit concluded that a district court erred in a Fourth Amendment prolonged detention case
when it relied upon Dubner to shift the burden to a police officer to “demonstrate he had nothing
to do with [plaintiffs’] prolonged detentions . . . in order to escape liability.” Id. at 1173. In
Johnson, the Ninth Circuit distinguished Dubner because “the success of Dubner’s claim for
unlawful arrest depended on her being able to show that she was arrested without probable
cause.” Id. at 1172. That is, “because the burden fell to the police [under Ninth Circuit
precedent] to demonstrate they had probable cause to arrest Dubner, then the burden also fell to
the police to come up with the identity of the officer who actually made the arrest—without it,
there would be no way to demonstrate that the officer had the necessary probable cause.” Id. at
1173. But in claims that do not require a probable cause showing, the Ninth Circuit held that
burden-shifting is inapplicable:
Dubner, however, establishes only that we will find the police lack probable cause
to make an arrest—and therefore that the arrest is unlawful—if the police are
unable to identify who made the arrest, or why. But the issue we must evaluate
here is not whether [the officer] had probable cause to arrest [the plaintiffs]; it is
whether [the officer] was at all responsible for their prolonged detentions.
Id. at 1173 (emphasis added).4
In the present case, as in Johnson, the success of plaintiffs’ excessive force claims does
not rise or fall upon a probable cause determination. The Burleys offer no counter to Johnson,
and instead direct us to the pre-Johnson case of Rauen v. City of Miami, No. 06-21182-CV, 2007
4

Other courts have also declined to extend Dubner beyond the probable cause/no probable cause
framework of false arrest claims. See, e.g., Taylor v. Brockenbrough, No. CIV. A. 98-6419, 2001 WL 1632146, at
*2 n.4 (E.D. Penn. Dec. 20, 2001) (“Unlike Dubner, this action does not involve a claim for unlawful arrest, but
rather a claim for excessive force, which does not involve a showing of probable cause. As such, the burden shifting
schemata employed by the Ninth Circuit in Dubner is not applicable to the present case.”); see also Arroyo v. Cal.
Dep’t of Justice, 2:08-cv-01493-GEB-KJM, 2010 WL 1798444, at *7–8 (E.D. Cal. May 3, 2010) (similar)
(excessive force claim); Sheikh v. Morales, No. 3:05CV495(PCD), 2006 WL 2223943, at *5 (D. Conn. July 31,
2006) (similar) (excessive force claim).

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WL 686609 (S.D. Fla. Mar. 2, 2007). That excessive force matter—involving officers whom
plaintiffs could not identify due to the officers all being identically dressed in riot gear—is
distinguishable on account of its procedural posture: Rauen addressed a motion to dismiss under
Fed. R. Civ. P. 12(b)(6). Id. at *3–4. Here, plaintiffs’ complaint advanced beyond that stage,
through discovery and summary judgment, and to trial, where one of the jury’s functions was to
assess witnesses’ credibility. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). Having heard two differing versions of evidence concerning defendants’ presence at
their house, the jury disagreed with plaintiffs.
Third, plaintiffs’ proposed burden-shifting would stand § 1983/Bivens liability
jurisprudence on its head. That case law teaches that in order to impose individual liability upon
a law officer for engaging in unconstitutional misconduct, it is a plaintiff’s burden to specifically
link the officer’s involvement to the constitutional infirmity; a plaintiff must be able to identify
with particularity the individual who engaged in the alleged misconduct because an individual
“is only liable for his or her own misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009); see
also Binay v. Bettendorf, 601 F.3d 640, 650 (6th Cir. 2010) (individual liability for excessive
force means the plaintiff must show that the defendant was “personally involved” in the use of
excessive force and “[e]ach defendant’s liability must be assessed individually based on his
actions”). Under plaintiffs’ proposal, a law officer who raises an “I wasn’t there defense” can
only avoid constitutional liability by mustering evidence of who was there instead, and by
implication, who was responsible for the alleged excessive force. In other words, once a plaintiff
has put forth some evidence of an officer being present at a raid in which a constitutional
violation has allegedly occurred, that officer is presumed to be liable if he claims he was not
there, unless he proves who was and who did it. Even Dubner does not go this far. 266 F.3d at
965 (“The plaintiff still has the ultimate burden of proof.”). And this is contrary to the general
rule we highlighted in the prior appeal: “[M]ere presence at the scene of a search, without a
showing of direct responsibility for the action, will not subject an officer to liability.” Burley,
729 F.3d at 620 (citation omitted).

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For these reasons, we hold that the district court did not err in refusing to extend and
expand Dubner as plaintiffs requested.5 In so doing, we do not condone the behavior of those
individuals who perpetrated the alleged excessive force. We are cognizant of the fact that at this
juncture our decision leaves plaintiffs without a remedy because all other defendants (state,
county, and local) have been dismissed.

However, at the second trial, plaintiffs had the

opportunity to present evidence as to why they believed these federal defendants participated in
the raid and committed excessive force. The jury simply did not credit their evidence when they
found to the contrary.
III.
Next, plaintiffs claim that they are entitled to another new trial because the district judge
erred in denying their motion for disqualification. Under 28 U.S.C. § 455(a), (b)(1), a federal
judge must disqualify himself from a proceeding where “his impartiality might reasonably be
questioned” or “[w]here he has a personal bias or prejudice concerning a party.”6 The statute is
“not based on the subjective view of a party,” United States v. Dandy, 998 F.2d 1344, 1349 (6th
Cir. 1993) (citation omitted), and rather imposes an objective standard: a judge must disqualify
himself “where a reasonable person with knowledge of all the facts would conclude that the
judge’s impartiality might reasonably be questioned.” United States v. Adams, 722 F.3d 788,
837 (6th Cir. 2013) (citation omitted).

The burden is on the moving party to justify

disqualification. Consol. Rail Corp. v. Yashinsky, 170 F.3d 591, 597 (6th Cir. 1999). We review
a judge’s decision on a motion to disqualify for an abuse of discretion. United States v.
Jamieson, 427 F.3d 394, 405 (6th Cir. 2005).
A judge’s prejudice or bias may stem from either personal or extrajudicial sources, or
arise during the course of current or prior proceedings. Liteky v. United States, 510 U.S. 540,
555 (1994) (brackets omitted); United States v. Sypher, 684 F.3d 622, 628 (6th Cir. 2012). The
5

Our rejection of plaintiffs’ proposed rule that would shift the burden of persuasion to a defendant who
does not point the finger at someone else does not mean that we would reject a lesser burden shift in different
circumstances—such as if a defendant comes forward with no evidence at all of his nonparticipation. Because the
defendants in this case did produce such evidence in the form of their own testimony (and the testimony of others),
we have no occasion to address the merits of such a less onerous shift of the burden of production.
6

The Due Process Clauses of the Fifth and Fourteenth Amendments also guarantee an unbiased judge. See
generally Williams v. Pennsylvania, 136 S. Ct. 1899 (2016); see also 28 U.S.C. § 144.

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Burleys rely solely upon the latter—events during and after plaintiffs’ first trial—to support their
claim for disqualification. In this circumstance, the Supreme Court has made clear that such a
claim faces an uphill battle. See Liteky, 510 U.S. at 555–56. “Prejudice or bias in this context
means ‘a favorable or unfavorable disposition or opinion that is somehow wrongful or
inappropriate, either because it rests upon knowledge that the subject ought not possess . . . , or
because it is excessive in degree . . . .’” Williams v. Anderson, 460 F.3d 789, 814 (6th Cir. 2006)
(quoting Liteky, 510 U.S. at 550) (omissions in original)). “Also not subject to deprecatory
characterization as ‘bias’ or ‘prejudice’ are opinions held by judges as a result of what they
learned in earlier proceedings.” Liteky, 510 U.S. at 551.
According to the Burleys, the district court demonstrated “overt hostility” toward them
from the start of the case. They direct us to several occasions during and after the first trial as
evidence of partiality, as well as point to the district court’s decision to assess juror expenses for
failing to timely inform the court of one of the plaintiffs’ inability to attend the start of the
second trial (an order from which plaintiffs did not appeal). Plaintiffs do not, however, make
any issue of the district court’s conduct during the second trial.
Some of plaintiffs’ claims of alleged misconduct are not supported by the record. For
example, plaintiffs complain that the district court told plaintiffs’ counsel that he was asking
repetitious questions to defendant Gagacki regarding the drafting of search warrants “when there
was no evidence of such.” A review of the testimony reveals there was such evidence. Nor does
the record reflect that the court improperly took breaks during witness testimony—it does not
reveal any instance of witnesses being “hard-pressed to supply answers” during their
questioning, plaintiffs do not point to any specific testimony showing this and did not object to
the district court taking a break.7 The same is true with respect to plaintiffs’ contention that the
district court interrupted questioning “ad hoc . . . with no clear purpose.” Moreover, a district
court has the duty to “see that the issues are not obscured and that the testimony is not
misunderstood,” and thus may interject itself as appropriate. United States v. Slone, 833 F.2d
595, 597 (6th Cir. 1987).
7

And as the district court properly noted, a district court’s “decision to permit breaks at certain junctions
during the trial testimony merely reflects ‘a judge’s ordinary efforts at courtroom administration’ and are ‘immune’
from aspersions of bias or prejudice.” (Quoting Liteky, 510 U.S. at 556) (bracket omitted).)

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Other examples fail to meet Liteky’s “extreme” bias or prejudice standard because they
were well within the norms of trial management—instructing plaintiffs’ counsel to use the
question and answer format during cross-examination, reminding a witness to testify truthfully,
refusing to allow a witness without personal knowledge of a document to testify about the
document, and questioning the merits of plaintiffs’ case-in-chief. 510 U.S. at 551, 555; see also
United States v. Adams, 722 F.3d 788, 837–38 (6th Cir. 2013) (“[T]he district court judge’s
statements amount to criticism and disapproval of defendants and other coconspirators, not deepseated favoritism or antagonism.”); United States v. Caraway, 411 F.3d 679, 683 (6th Cir. 2005)
(“[A] district court must exercise reasonable control over the mode and order of presenting
evidence with the goal that the presentation be effective for ascertaining the truth.”) (citing Fed.
R. Evid. 611(a)); United States v. Morrow, 977 F.2d 222, 226 (6th Cir. 1992) (“The court’s
remark concerning the defendants’ duty to tell the truth is not only free of bias, but is consistent
with the law.”).
The remaining alleged misconduct raised by plaintiffs—granting a bill of costs after the
first trial, assessing juror expenses, and directing a verdict in defendants’ favor after having
denied summary judgment—fall within Liteky’s admonition that “judicial rulings alone almost
never constitute a valid basis for a bias or partiality motion.” 510 U.S. at 555; see also id. at 551
(“Also not subject to deprecatory characterization as ‘bias’ or ‘prejudice’ are opinions held by
judges as a result of what they learned in earlier proceedings. It has long been regarded as
normal and proper for a judge to sit in the same case upon its remand, and to sit in successive
trials involving the same defendant.”).
In sum, plaintiffs have “done nothing more than make conclusory allegations to support
[their] claim that the district court was biased against [them.]” Sypher, 684 F.3d at 628. The
district judge did not err in denying plaintiffs’ motion for disqualification.
IV.
Next, we turn to plaintiffs’ assignment of errors regarding several motions in limine. We
review a district court’s evidentiary rulings for an abuse of discretion; an abuse of discretion
occurs when the district court “relies on clearly erroneous findings of fact, improperly applies the

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law, or employs an erroneous legal standard,” Griffin v. Finkbeiner, 689 F.3d 584, 592 (6th Cir.
2012) (internal quotation marks omitted), or when we are “firmly convinced that a mistake has
been made, i.e., when we are left with a definite and firm conviction that the trial court
committed a clear error of judgment.” United States v. Heavrin, 330 F.3d 723, 727 (6th Cir.
2003) (citation omitted). Even if the district court’s evidentiary ruling was erroneous, it is error
requiring reversal “only if it was not harmless; that is, only if it affected the outcome of the trial.”
Cummins v. BIC USA, Inc., 727 F.3d 506, 510 (6th Cir. 2013). In the converse, if an evidentiary
error did not “substantially sway[]” the jury, United States v. Hardy, 643 F.3d 143, 153 (6th Cir.
2011), or “had but very slight effect,” Kotteakos v. United States, 328 U.S. 750, 764 (1946), and
thus did not “materially affect[]” the verdict, it is not a basis for reversal. United States v.
Trujillo, 376 F.3d 593, 611 (6th Cir. 2004).
A.
Before the first trial, the Burleys sought to preclude evidence regarding their receipt of
social security disability benefits and participation in prior negligence claims and lawsuits. The
district court denied both motions, agreeing with defendants that both were relevant to damages
(plaintiffs apparently alleged injuries in this lawsuit similar to those for which they are receiving
disability benefits), and that their prior negligence actions also went to their credibility.
Plaintiffs appealed these rulings during the prior appeal, which we found to be moot:
they “had no bearing on the outcome of the proceedings because the evidence was never
introduced at trial.” Burley, 729 F.3d at 620–21. Upon remand, and in advance of the second
trial, plaintiffs renewed their motions. The district court found the law of the case doctrine
precluded any different result.
The second trial produced some (albeit opaque) evidence regarding plaintiffs’ receipt of
disability benefits and their prior litigation experience.

On the former, Geraldine Burley

admitted being on disability and Caroline Burley testified that she no longer works because she
is “disabled” due to an injury at work (from which she receives workers’ compensation benefits).
The record contains no other information about these benefits, including whether they are social
security or some other type of contractually provided benefits. As to the latter, Geraldine Burley

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answered questions regarding her prior litigation experience. This included being impeached for
having denied being a party to litigation in her interrogatory answers—she admitted at trial that
she had filed a lawsuit “against the Marriott Corporation for a slip and fall that occurred in a
bathroom at the Courtyard by Marriot” and that it was resolved for $45,000. Geraldine also
admitted that she filed a slip-and-fall lawsuit against Kmart, which settled for $20,000. This is
the extent to which plaintiffs’ prior litigation was discussed during proofs. At closing, defense
counsel brought plaintiffs’ credibility front and center, expressly referencing the falsity of
Geraldine’s interrogatory answers.
Preliminarily, we reject defendants’ contention that the law of the case doctrine precludes
our review. “Under the law of the case doctrine, findings made at one stage in the litigation
should not be reconsidered at subsequent stages of that same litigation.” Dixie Fuel Co., LLC v.
Dir., Office of Workers’ Comp. Programs, 820 F.3d 833, 843 (6th Cir. 2016). Application of this
doctrine is “limited to those questions necessarily decided in the earlier appeal.” Hanover Ins.
Co. v. Am. Eng’g Co., 105 F.3d 306, 312 (6th Cir. 1997). “[T]he phrase ‘necessarily decided’
. . . describes all issues that were ‘fully briefed and squarely decided’ in an earlier appeal.”
Vander Boegh, 772 F.3d at 1071 (citation omitted). This doctrine does not govern our result—
we found the issue moot given the evidence precluded was not presented, and thus we did not
“squarely decide” the merits of the district court’s rulings.
With that said, there was no error requiring reversal. First, the Burleys have abandoned
this issue on appeal. They have submitted the same brief language on this issue that they did
during the last appeal—down to an incomplete sentence contained in both briefings. They thus
make no mention of the district court’s application of the law of the case doctrine, the evidence
presented at the second trial, and, most importantly, why this evidence affected the trial’s
outcome. Such a failure to develop a cogent argument constitutes abandonment. See id. at 1063.
Second, assuming plaintiffs have not abandoned the issue, there is no argument to be
made that the evidence adduced at trial affected the outcome of the trial. It is not clear that
evidence regarding plaintiffs’ receipt of social security disability insurance benefits was even
presented to the jury. Moreover, to the extent one could infer such a connection, there is no
indication that this evidence (or that regarding Geraldine Burley’s prior actions) affected the

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outcome of trial—the jury’s verdict that defendants were not present during the execution of the
warrant. This lack of a “material[] affect” is not a basis for reversal. Trujillo, 376 F. 3d at 611.
B.
Before the first trial, the district court found that the search of plaintiffs’ home “was done
pursuant to a valid warrant.” Plaintiffs gave up on contesting this issue during the first appeal.
Burley, 729 F.3d at 619 (“Plaintiffs no longer contest the validity of the search warrant.”). After
remand, defendants Gagacki and Reed moved to preclude any argument challenging the validity
of the underlying search warrant based on the law of the case doctrine. The district court agreed.
Plaintiffs argue that this was in error because they made a strategic decision not to pursue
that argument in the first appeal in order to “focus[] . . . on issues calculated to win them a new
trial.”

Although plaintiffs were partially successful in their first appeal, their success in

obtaining a trial was at the expense of any claim regarding the viability of the warrant. “The
law-of-the-case doctrine bars challenges to a decision made at a previous stage of the litigation
which could have been challenged in a prior appeal, but were not.” United States v. Adesida,
129 F.3d 846, 850 (6th Cir. 1997). Thus, “[a] party who could have sought review of an issue or
a ruling during a prior appeal is deemed to have waived the right to challenge that decision
thereafter, for ‘[i]t would be absurd that a party who has chosen not to argue a point on a first
appeal should stand better as regards the law of the case than one who had argued and lost.’” Id.
(citation omitted); see also United States v. McKinley, 227 F.3d 716, 718 (6th Cir. 2000). This
doctrine exists for good reason—it discourages “perpetual litigation” and promotes finality in
proceedings by requiring that parties seek review of a claim in the first appeal. McKinley, 227
F.3d at 719.
Accordingly, plaintiffs’ strategic decision to no longer contest the warrant’s viability
during the first appeal precluded plaintiffs from making it an issue during subsequent
proceedings.

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C.

The district court also precluded evidence as to defendant Browne’s (1) having a § 1983
excessive force claim filed against him that did not conclude in an adverse judgment and
(2) having been disciplined for his handling of a claim involving a citation for accepting false
identification from minors, concluding both were not relevant and more prejudicial than
probative. Plaintiffs did not appeal this ruling during the first appeal.
Browne renewed his motion upon remand. The district court again granted the motion
under the law of the case doctrine. On appeal, the Burleys contend the prior excessive force
claim is relevant to the extent the evidence precluded was the “very same sort of conduct
currently at issue.”8 Because plaintiffs did not raise this argument in the prior appeal, this
challenge suffers the same fate as their search warrant challenge. Adesida, 129 F.3d at 850.
V.
Finally, the Burleys’ briefing raises two issues over which we do not have jurisdiction.
Federal Rule of Appellate Procedure 3(c)(1)(B) requires the parties to “designate the judgment,
order, or part thereof being appealed” in the notice of appeal.

“Rule 3’s dictates are

jurisdictional in nature, and their satisfaction is a prerequisite to appellate review.” Smith v.
Barry, 502 U.S. 244, 248 (1992); see also Isert v. Ford Motor Co., 461 F.3d 756, 759 (6th Cir.
2006) (describing Rule 3’s requirements as “mandatory and jurisdictional in nature”).

By

enacting this provision, “Congress has limited this Court’s appellate review to issues designated
in the notice of appeal.”

United States v. Glover, 242 F.3d 333, 335 (6th Cir. 2001).

Accordingly, if an appellant “chooses to designate specific determinations in his notice of
appeal—rather than simply appealing from the entire judgment—only the specified issues may
be raised on appeal.” McLaurin v. Fischer, 768 F.2d 98, 102 (6th Cir. 1985).

8

Other than in a point heading, plaintiffs’ briefing makes no mention of the exclusion of Browne’s prior
discipline. This argument is thus not properly before us. White Oak Prop. Dev., LLC v. Washington Twp., 606 F.3d
842, 850 (6th Cir. 2010).

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Here, although plaintiffs’ notice of appeal lists six specific orders, it does not appeal the
district court’s assessment of juror expenses or its resolution of the Burleys’ Batson challenge.
These omissions strip this court of jurisdiction, and we dismiss these claims.
VI.
For these reasons, we affirm in part, and dismiss in part.