Pain v. Alexander et al

Filing 117

ORDERED that Defendant's Motion in Limine to Preclude TPD General Orders (Doc. 112 ) is denied. IT IS FURTHER ORDERED that, within fourteen (14) days of the date this Order is filed, the parties shall file a revised Joint Proposed Pretrial Order that corrects Plaintiff's identification of the relevant TPD General Orders. Signed by Judge Rosemary Marquez on 2/23/21. (MYE)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Walter James Pain,
Plaintiff,

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ORDER

v.

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No. CV-17-00215-TUC-RM

Matthew W Alexander, et al.,

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Defendants.

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Trial in the above-captioned case is scheduled to begin on August 9, 2021. (Doc.

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116.) Currently pending before the Court is Defendant Matthew Alexander’s Motion in

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Limine to Preclude TPD General Orders. (Doc. 112.) The Court heard oral argument on

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February 11, 2021, and took the matter under advisement. (Doc. 116.)

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I.

Background

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Plaintiff initiated this action on May 11, 2017 (Doc. 1) and filed an Amended

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Complaint on November 6, 2017 (Doc. 15). In Count I of the Amended Complaint,

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Plaintiff alleged that Defendant Matthew Alexander used excessive force in violation of

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the Fourth Amendment by beating him with his fist and baton, breaking his jaw in three

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places. (Doc. 15 at 3.) In Count II, Plaintiff alleged that the City of Tucson inadequately

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trained and supervised its police officers. (Id. at 4.) The Court screened the Amended

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Complaint pursuant to 28 U.S.C. § 1915A(a), ordered Defendant Matthew Alexander to

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answer Count I, and ordered the City of Tucson to answer Count II. (Doc. 18.) The

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Court later granted summary judgment to the City of Tucson on Count II, leaving the

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excessive force claim alleged against Defendant Alexander in Count I as the only

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remaining claim in the case. (Doc. 67.)

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II.

Discussion

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In his Motion in Limine to Preclude TPD General Orders, Defendant Alexander

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asks the Court to (1) preclude Plaintiff from introducing or eliciting testimony concerning

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the Tucson Police Department (“TPD”) General Orders listed by Plaintiff in the parties’

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Joint Proposed Pretrial Order, and (2) preclude Plaintiff from inferring or arguing that

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Defendant failed to follow TPD policies or procedures. (Doc. 112.) Defendant argues

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that TPD’s internal policies and procedures are irrelevant to Plaintiff’s Fourth

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Amendment claim and that allowing Plaintiff to introduce them as a standard will only

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serve to confuse and mislead the jury. (Id. at 1-2.) Defendant also notes that in the Joint

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Proposed Pretrial Order, Plaintiff listed exhibits that differ from those that were disclosed

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in this matter, and he argues that those exhibits should be precluded for non-disclosure.

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(Id. at 2-3.)

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Plaintiff argues in response that the TPD General Orders are directly relevant to

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Plaintiff’s Fourth Amendment excessive force claim and will assist the jury in

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determining whether Defendant’s use of force was reasonable under the circumstances of

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his arrest of Plaintiff. (Doc. 113 at 1-2.) Plaintiff further argues that he can correct any

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errors in his identification of the TPD General Orders at issue. (Id. at 2.)

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Evidence is relevant if it has any tendency to make a fact that “is of consequence

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in determining the action” either “more or less probable than it would be without the

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evidence.” Fed. R. Evid. 401(a)-(b). Relevant evidence is generally admissible, Fed. R.

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Evid. 402, although it may be excluded “if its probative value is substantially outweighed

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by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue

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delay, wasting time, or needlessly presenting cumulative evidence,” Fed. R. Evid. 403.

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In support of his argument that evidence of the TPD General Orders should be

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precluded under Rules 401, 402, and 403, Defendant relies on Tanberg v. Sholtis, 401

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F.3d 1151 (10th Cir. 2005). In that case, the Tenth Circuit found no abuse of discretion

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in the trial court’s exclusion of a police department’s excessive force policies in a trial

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involving an excessive force claim. Id. at 1161-67. The court reasoned that the issue of

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whether the defendant violated the policies was irrelevant to the issue of whether he

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violated the Fourth Amendment’s reasonableness standard. Id. at 1161-64. Tanberg

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supports Defendant’s position, but it is not controlling precedent.

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The Ninth Circuit has indicated that internal police guidelines may be relevant to

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determining whether a police officer’s use of force was objectively reasonable so long as

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one of the purposes of the policies “is to protect the individual against whom force is

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used.” Scott v. Henrich, 39 F.3d 912, 915-16 (9th Cir. 1994); see also Smith v. City of

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Hemet, 394 F.3d 689, 703 (9th Cir. 2005) (considering expert declaration regarding

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whether the defendant’s conduct comported with police department policy). Review of

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the TPD General Orders at issue reveals that at least one of their purposes is to protect

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arrestees such as Plaintiff. (See Doc. 112-1.) Accordingly, the General Orders are

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relevant to the issue of whether Defendant’s use of force was reasonable. See Scott, 39

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F.3d at 915-16. The probative value of the evidence is not substantially outweighed by

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Rule 403 concerns.

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Because Plaintiff erroneously misidentified some of the General Orders at issue in

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the parties’ Joint Proposed Pretrial Order, the Court will allow the parties to file a revised

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Joint Proposed Pretrial Order that corrects the identifications.
IT IS ORDERED that Defendant’s Motion in Limine to Preclude TPD General

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Orders (Doc. 112) is denied.

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IT IS FURTHER ORDERED that, within fourteen (14) days of the date this

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Order is filed, the parties shall file a revised Joint Proposed Pretrial Order that corrects

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Plaintiff’s identification of the relevant TPD General Orders.

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Dated this 23rd day of February, 2021.

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