Childress v. City of Huntsville, Alabama et al

Filing 164

MEMORANDUM OPINION AND ORDER that the plaintiff's motion in limine is GRANTEDin part and DENIED in part; Defendants' first, second, third, fourth, seventh, eighth, and ninth motions in limine are GRANTED; Defendants' fifth motion in limine is DENIED; and Defendants' sixth motion in limine is DENIED as moot as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 12/18/2013. (AHI )

FILED
2013 Dec-18 PM 03:16
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
ALAN KENT CHILDRESS,
Plaintiff,
vs.
DONALD W. LONG,
and EDWARD L. HOUCK,
Defendants.

)
)
)
)
)
)
)
)
)
)

Civil Action No. CV-09-S-2489-NE

MEMORANDUM OPINION AND ORDER
This opinion addresses the parties’ motions in limine.1
I. AGREED ITEMS
The parties have agreed with regard to several categories of evidence. In
accordance with the parties’ agreements, the following items of evidence will not be
permitted at trial:
•

Evidence of prior and subsequent alleged misconduct by plaintiff.2

•

Evidence of the financial condition of the defendants.3

1

Doc. no. 148 (Plaintiff’s Motion In Limine); doc. no. 151 (Defendants’ First Motion In
Limine); doc. no. 152 (Defendants’ Second Motion In Limine); doc. no. 153 (Defendants’ Third
Motion In Limine); doc. no. 154 (Defendants’ Fourth Motion In Limine); doc. no. 156 (Defendants’
Sixth Motion In Limine); doc. no. 157 (Defendants’ Seventh Motion In Limine); doc. no. 158
(Defendants’ Eighth Motion In Limine); doc. no. 159 (Defendants’ Ninth Motion In Limine); doc.
no. 161 (Defendants’ Fifth Motion In Limine) (erroneously filed out of order).
2

See doc. no. 148 ¶ 1 (indicating that plaintiff’s motion is unopposed with regard to this
evidence).
3

See id. ¶ 3 (indicating that plaintiff’s motion is unopposed with regard to this evidence).

•

Evidence relating to the criminal charge of obstructing governmental
operations initiated by officers of the Huntsville Police Department
against citizens other than plaintiff, including the frequency with which
such charges are made and/or dismissed.4

•

Evidence regarding the use of oleoresin capsicum spray by officers of
the Huntsville Police Department not related to the incident involving
plaintiff.5

•

Evidence regarding allegations of wrongdoing against defendants
Donald Long and Edward Houk, or any other officer involved in this
matter, not related to the claims made by plaintiff, including, but not
limited to, informal complaints to the Internal Affairs Division of the
Huntsville Police Department, and/or actual lawsuits.6

•

Evidence relating to whether the City of Huntsville is paying for the
defense costs of defendants Donald Long and Edward Houk, and/or
whether the City of Huntsville may satisfy any judgment that might be

4

See doc. no. 152 (Defendants’ Second Motion In Limine), at 1 (indicating the motion is
unopposed).
5

See id.

6

See doc. no. 153 (Defendants’ Third Motion In Limine), at 1 (indicating the motion is
unopposed).
-2-

entered against those defendants.7
II. PLAINTIFF’S MOTION IN LIMINE AND DEFENDANTS’ FIRST
MOTION IN LIMINE
The remainder of plaintiff’s motion in limine seeks the exclusion of evidence
of plaintiff’s identification as a “citizen soldier,” and evidence regarding the contents
of plaintiff’s home, including guns and ammunition.
A.

Citizen Soldier
During his deposition, plaintiff testified that he served two years in the United

States Air Force after leaving high school, then served for a year in the National
Guard. He stated that he comes from a family whose members believe they owe a
duty to help keep the nation secure. When asked if he came from a “military family,”
plaintiff responded, “Only in the sense that everyone that I know of from the male
side of my family has served. We are not retired military. We are core, in the truest
sense of the word, citizen soldiers.”8
Plaintiff now asks that any evidence of his identification as a citizen soldier be
excluded from trial because it is not relevant to any of the claims or defenses, and
because any minimal relevance would be substantially outweighed by the danger of

7

See doc. no. 157 (Defendants’ Seventh Motion In Limine), at 1 (indicating the motion is
unopposed).
8

Doc. no. 111 (Defendants’ Summary Judgment Evidentiary Submission), Exhibit A
(Deposition of Alan Kent Childress), at 29-30 (emphasis supplied).
-3-

unfair prejudice. See Fed. R. Evid. 403 (“The court may exclude relevant evidence
if its probative value is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.”). This court agrees with
plaintiff.
The claims that will be tried are Fourth Amendment claims for arrest without
probable cause, excessive force, and unreasonable search of plaintiff’s home. All of
those claims arise out of an incident during which plaintiff was arrested from his
home. Plaintiff’s self-identification as a “citizen soldier” has very little tendency to
support any fact that is salient to his claims, or to defendants’ defenses. See Fed. R.
Evid. 401 (“Evidence is relevant if: (a) it has any tendency to make a fact more or less
probable than it would be without the evidence; and (b) the fact is of consequence in
determining the action.”). Defendants assert that the “citizen soldier” evidence “is
relevant for the jury to determine [plaintiff’s] credibility, particularly whether he
believes his role as a citizen soldier allows him to ignore the lawful commands of
police officers and whether he dealt properly with defendants in this case.”9 As an
initial matter, defendants have not demonstrated that discussing plaintiff’s
identification as a citizen soldier actually will assist them in proving that point.
9

Doc. no. 162 (Defendants’ Response to Plaintiffs Motion In Limine) ¶ 4 (alteration
supplied).
-4-

During plaintiff’s deposition, he discussed being a “citizen soldier” in the context of
serving in the military and protecting the nation. There is no indication that any
further testimony on the topic would elicit evidence that plaintiff does not respect the
authority of police officers. Moreover, use of the term “citizen soldier” is not the
only means by which defendants can elicit information regarding plaintiff’s views on
authority. Defendants can simply and directly question plaintiff about whether he
thought he was required to submit to their authority as police officers during the
incident that led to his claims in this case. Any minimal relevance that use of the term
“citizen soldier” might have for that purpose would be substantially outweighed by
the danger of unfair prejudice, and it will be excluded.
B.

Guns and Ammunition Found in Plaintiff’s Home
The remaining arguments in plaintiff’s motion in limine mirror the arguments

in defendants’ first motion in limine, so those motions will be addressed together.
The evidence presented at summary judgment established that, after subduing
plaintiff, defendants entered plaintiff’s home to search it. Plaintiff stipulated that the
officers’ initial entry into the home to conduct a protective sweep was lawful, but he
nonetheless argued that the search, which lasted approximately thirty minutes,
exceeded the scope of a lawful protective sweep. During their search, the officers

-5-

found guns and ammunition.10
Plaintiff asserts that, because the guns and ammunition found by the officers
had been legally obtained, their existence has no relevance to the claims in this
lawsuit. He alternatively asserts that the probative value of any gun evidence would
be substantially outweighed by the risk of unfair prejudice. The court disagrees. The
presence of the guns and ammunition — which were in plain view after defendants
lawfully entered the residence to conduct a protective sweep — is relevant to
defendants’ decision to conduct a more lengthy search of the residence, and the
question of whether that decision was justified. Moreover, the probative value of this
evidence to defendants outweighs any unfair prejudice plaintiff would suffer as a
result of its admission. Plaintiff will be permitted, if he so desires, to explain his
reasons for owning the guns and placing them in his residence. He also will be
permitted to testify regarding whether the guns were legally owned.
II. DEFENDANTS’ FOURTH MOTION IN LIMINE
In their fourth motion in limine, defendants seek to exclude evidence “relating
to any performance evaluations, performance reviews, and/or past disciplinary
hearings or actions related to Investigator Long, Investigator Houk, and/or any other

10

See doc. no. 133 (Memorandum Opinion and Order on Motion for Summary Judgment),

at 9-11.
-6-

law enforcement officers involved in the incident at issue in this case.”11 The court
agrees with defendants that such evidence has “nothing to do with whether
defendants used excessive force in arresting plaintiff, whether defendants falsely
arrested plaintiff, and whether defendants unlawfully searched plaintiff’s residence.”12
Moreover, “[e]vidence of a crime, wrong, or other act is not admissible to prove a
person’s character in order to show that on a particular occasion the person acted in
accordance with the character.” Fed. R. Evid. 404(b)(1) (alteration supplied). The
evidence might have been relevant to demonstrate the City’s liability for its officers’
wrongs, but all claims against the City were dismissed on summary judgment.13
Accordingly, there is no relevant purpose for the admission of this evidence, and it
will be excluded.
III. DEFENDANTS’ FIFTH MOTION IN LIMINE
In their fifth motion in limine, defendants seek to exclude any evidence relating
to the ultimate disposition of the charges filed against plaintiff for obstructing
governmental operations.14 The evidence presented at summary judgment indicated

11

Doc. no. 154 (Defendants’ Fourth Motion In Limine), at 1. Defendants indicated on the
face of this motion that it was opposed, but plaintiff did not file a response to the motion.
12

Id. ¶ 1.

13

See doc. no. 133, at 47-54.

14

Doc. no. 161 (Defendants’ Fifth Motion In Limine), at 1. Defendants indicated on the face
of this motion that it was opposed, but plaintiff did not file a response to the motion.
-7-

that, while plaintiff initially was convicted of obstructing governmental operations
in the Huntsville Municipal Court, he ultimately was acquitted of the charges after a
trial de novo in the Circuit Court.15 Defendants anticipate that plaintiff will attempt
to use evidence of his acquittal to demonstrate that there was no probable cause to
support his arrest for obstructing governmental operations.16 Defendants correctly
point out that the Eleventh Circuit has held:
That a defendant is subsequently acquitted or charges are dropped
against the defendant is of no consequence in determining the validity
of the arrest itself. See Trivette v. State, 244 So.2d 173, 175 (Fla. App.
1971); Brown v. State, 91 So.2d 175, 177 (Fla. 1956); see also Baker v.
McCollan, 443 U.S. 137, 145, 99 S. Ct. 2689, 2695, 61 L. Ed. 2d 433
(1979) (“The Constitution does not guarantee that only the guilty will be
arrested. If it did, § 1983 would provide a cause of action for every
defendant acquitted — indeed, for every suspect released.”). As Judge
Learned Hand wrote, “the ‘reasonable cause’ necessary to support an
arrest cannot demand the same strictness of proof as the accused’s guilt
upon a trial, unless the powers of peace officers are to be so cut down
that they cannot possibly perform their duties.” United States v.
Heitner, 149 F.2d 105, 106 (2d Cir. 1945) (quoted in Draper v. United
States, 358 U.S. 307, 311 n. 4, 79 S. Ct. 329, 332 n. 4, 3 L. Ed. 2d 327
(1959)).
Marx v. Gumbinner, 905 F.2d 1503, 1507 (11th Cir. 1990). Accordingly, plaintiff
will not be permitted to argue to the jury that his acquittal is dispositive of the issue
of probable cause. That does not mean, however, that plaintiff should be precluded

15

See doc. no. 133, at 11-12.

16

Doc. no. 161 ¶ 1.
-8-

from any mention of the disposition of the criminal charges against him. Such
evidence is not likely to confuse the jury if they are instructed that the probable cause
inquiry is separate from the ultimate outcome of the criminal charges. Likewise,
defendants will be permitted to introduce evidence, if they so desire, that plaintiff was
first found guilty of the criminal charges in municipal court.
IV. DEFENDANTS’ SIXTH MOTION IN LIMINE
In their sixth motion in limine, defendants assert that plaintiff should be
precluded from offering any specific evidence regarding his damages because he
failed to produce an itemized list of damages, as required by the Pretrial Order.17
Defendants’ motion was filed at 4:57 p.m. on December 9, 2013, the date on which
damage lists were due.18 At 5:22 p.m. that same day, plaintiff filed his itemized list
of damages.19 Accordingly, defendants’ sixth motion in limine is denied as moot.
V. DEFENDANTS’ EIGHTH MOTION IN LIMINE
In their eighth motion in limine, defendants assert that plaintiff should be
precluded from offering any evidence or argument about a drawing that was made of

17

Doc. no. 156 (Defendants’ Sixth Motion In Limine), at 1. Defendants indicated on the face
of this motion that it was opposed, but plaintiff did not file a response to the motion. See also doc.
no. 147 (Pretrial Order), Exhibit A ¶ 1 (“The parties shall, by December 9, 2013, serve and file a list
itemizing all damages and equitable relief being claimed or sought, showing the amount (and, where
applicable, the method and basis of computation) of such items.”).
18

See doc. no. 156, at 1 (file stamp).

19

Doc. no. 160.
-9-

plaintiff’s residence on December 16, 2007, the night of the incident that serves as
the basis for plaintiff’s claims.20 Defendants anticipate that plaintiff will reference
the drawing “in an effort to demonstrate that defendants’ search of the residence went
beyond the necessary search for clearing the property.”21
Officer Marcus Hendrix, a SWAT Team member who arrived on the scene after
Officers Long and Houk had already subdued plaintiff, testified that he joined Long
and Houk in their search of the house. Once the house had been cleared for security
purposes, Hendrix decided to make a sketch of the interior layout of the house on a
notepad because he had seen guns, and he thought the sketch might be useful “for
future reference.”22 He noted how all the rooms of the house were laid out, but he did
not make a listing of the firearms that were seen, except to state that they were long
guns. He did not make a formal report of his findings, but testified during his
deposition that he may have informally mentioned making the drawing to other
members of the SWAT Team.23 Defendants Long and Houk both testified that they
never saw Hendrix’s drawing, and they did not know that Hendrix was creating such

20

Doc. no. 158 (Defendants’ Eighth Motion In Limine), at 1. Defendants indicated on the
face of this motion that it was opposed, but plaintiff did not file a response to the motion.
21

Id. ¶ 1.

22

Doc. no. 111 (Defendants’ Summary Judgment Evidentiary Submission), Exhibit E
(Deposition of Marcus Hendrix), at 10-11.
23

Id. at 11-13.
-10-

a drawing on the night of the incident in question.24
Because there is no evidence that either defendant ever laid eyes on the
diagram, the court can discern no valid reason for which the diagram could be
introduced into evidence. This motion in limine, therefore, will be granted. Even so,
this ruling should not be construed to prevent defendants from testifying from
memory about the layout of plaintiff’s home or its contents.
VI. DEFENDANTS’ NINTH MOTION IN LIMINE
In their ninth motion in limine, defendants assert that plaintiff should be
precluded from offering any evidence or argument relating to the joint participant
theory of liability plaintiff argued at summary judgment.25 “Defendants anticipate
plaintiff will attempt to argue to the jury that defendant Investigator Houk should be
held liable to plaintiff for excessive force even though Investigator Long used the OC
spray, under a ‘joint participant’ theory.”26 The summary judgment memorandum
opinion entered by this court found:
The court first will address plaintiff’s argument that Houk should
be held liable for excessive force, even though he was not the one who
knocked plaintiff to the ground or sprayed him with pepper spray,
24

Doc. no. 111 (Defendants’ Summary Judgment Evidentiary Submission), Exhibit B
(Deposition of Wesley Long), at 62-63, 68-69; id., Exhibit C (Deposition of Eddie Houk), at 120-21,
140, 153-57.
25

Doc. no. 159 (Defendants’ Ninth Motion In Limine), at 1. Defendants indicated on the face
of this motion that it was opposed, but plaintiff did not file a response to the motion.
26

Id. ¶ 1.
-11-

because he “was a joint participant in the incident and . . . he had a clear
opportunity to intervene to protect Childress.” Plaintiff does not cite
any authority to support this argument, and the court can find none to
support the “joint participant” assertion. All of the cases this court
could locate discussing a joint participant theory in an excessive force
case did so in the context of determining whether a non-state-actor was
a “joint participant” with a state actor, such that the non-state-actor
could also be subjected to liability under § 1983. That situation clearly
is not present here. And, in any event, there is no evidence that Houk
actually acted jointly with Long in his use of force against plaintiff.27
Because the joint participant theory was disposed of at summary judgment, no
evidence or argument to support that theory will be permitted at trial.28
VII. CONCLUSION AND ORDERS
In accordance with the foregoing, plaintiff’s motion in limine is GRANTED
in part and DENIED in part. Defendants’ first, second, third, fourth, seventh, eighth,
and ninth motions in limine are GRANTED. Defendants’ fifth motion in limine is
DENIED. Defendants’ sixth motion in limine is DENIED as moot. The evidence
presented at trial must conform to the instructions set forth in this memorandum
opinion.
DONE this 18th day of December, 2013.

______________________________
United States District Judge
27

Doc. no. 133, at 36-37 (footnote omitted).

28

Plaintiff will be permitted, however, to introduce evidence to support Houk’s liability under
a failure to intervene theory, as that theory was not precluded at summary judgment. See id. at 37.
-12-