Cox v. Wilson

Filing 163

ORDER denying 156 the Defendant's construed Motion for Reconsideration by Judge William J. Martinez on 12/01/2016. (cthom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 15-cv-0128-WJM-NYW
CODY WILLIAM COX,
Plaintiff,
v.
DON WILSON, in his individual capacity
Defendant.

ORDER ON DEFENDANT’S SUPPLEMENTAL RESPONSE TO MOTION IN LIMINE

This matter is before the Court on the Defendant’s Supplemental Response to
Motion in Limine, which the Court construes as a Motion for Reconsideration of the
Court’s Prior Order Granting in Part Plaintiff’s Motion in Limine. (ECF No. 156.)1
Defendant’s Motion seeks reconsideration of the Court’s Order with respect to evidence
of Plaintiff’s prior interactions with law enforcement. (ECF No. 156 at 1; ECF No. 147 at
6.) Plaintiff filed a reply on November 28, 2016. (ECF No. 157.) Trial of this action is
set to commence on December 6, 2016. (ECF No. 120.) For the reasons set forth
below, Defendant’s construed Motion for Reconsideration is denied.

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“Grounds warranting a motion to reconsider include (1) an intervening change in the
controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error
or prevent manifest injustice.” Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir.
2000).
At the November 18, 2016 Final Trial Preparation Conference (TPC), Defendant
requested an opportunity to present additional evidence regarding Plaintiff’s “prior interactions
with law enforcement” that was previously alluded to in his response brief to Plaintiff’s Motion in
Limine and ruled on in the Court’s prior Order. (ECF No. 147 at 5–6.) For this reason, the
Court is construing Defendant’s supplemental response as one for reconsideration.

I. ANALYSIS
Defendant “requests an order permitting evidence of [Plaintiff’s] history of fighting
law enforcement and resisting arrest as evidence of intent and lack of accident under
Rule 404(b)(2).” (ECF No. 156 at 1.) To establish a proper purpose, Defendant points
to evidence of: (1) Plaintiff’s prior charges and convictions for resisting arrest (CBI
report), (2) statements made by law enforcement regarding Plaintiff’s prior attempts to
resist arrest (through police reports), and (3) statements purportedly capturing Plaintiff’s
attitude or proclivity towards law enforcement (through police reports, hospital records,
and Plaintiff’s therapist’s deposition testimony). (ECF Nos. 156-2, 156-3, 156-4, 156-5,
156-6, 157-1.) Defendant seeks a ruling that this evidence is admissible. (ECF No. 156
at 5–6.) Plaintiff responds that the “defense’s ‘other acts’ evidence is not relevant for
any proper purpose under Rule 404(b)(2).” (ECF No. 157 at 4.)
Pursuant to Federal Rule of Evidence 404(b)(1), the admission of evidence of a
crime or “bad act” to prove a person’s character “in order to show that on a particular
occasion the person acted in accordance with the character” is precluded from the jury’s
purview. Fed. R. Evid. 404(b). Such evidence may be admissible for other purposes,
“such as proving motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2). Evidence is relevant
if “it has a tendency to make a fact more or less probable [and] the fact is of
consequence in determining the action.” Fed. R. Evid. 401. Furthermore, “[t]he court
may exclude relevant evidence if its probative value is substantially outweighed by a
danger of . . . unfair prejudice . . . .” Fed. R. Evid. 403. See United States v. Serrata,
425 F.3d 886, 903 (10th Cir. 2005) (noting that the Tenth Circuit has “adopted a four2

part test for determining the admissibility of evidence under Rule 404(b)” including: (1 &
2) “‘evidence must be offered for, and relevant to, a proper purpose,’” (3) “the trial court
must make a Rule 403 determination,” and (4) “the trial court ‘must instruct the jury that
the evidence of similar acts is to be considered only for the limited purpose for which it
was admitted’”).
A.

Proper Purpose and Relevance
Defendant argues his evidence is offered to prove intent and lack of accident,

both of which are proper uses for Rule 404(b) evidence under the language of the Rule.
(ECF No. 156 at 1.); Fed. R. Evid. 404(b)(2). As for intent, Defendant contends that
Plaintiff’s “history of resisting arrest with physical force is probative of his intent to
physically resist arrest in this case, consistent with [Defendant’s] perception that
[Plaintiff] drove toward [Defendant] in an attempt to continue fleeing.” (ECF No. 156 at
2–3.) As for lack of accident, Defendant contends that “these events are evidence that
his multiple failures to comply with emergency lights, siren, PA system and voice
commands were not accidental, but rather intentional refusal in furtherance of his plan
to avoid law enforcement contact[.]” (Id. at 4–5.)
Plaintiff responds that “plaintiff’s subjective intent at the time of the shooting is
irrelevant.” (ECF No. 157 at 4.) Specifically arguing that the material issue here is
“whether or not the Defendant had reasonable grounds to believe that the Plaintiff
posed an imminent threat at the time he shot the Plaintiff, based upon facts and
circumstances of which he was aware.” (Id. at 2.) In response to the lack of accident
argument, Plaintiff asserts that he “will not make any claim or offer any evidence at trial
either that he was unaware that he was being pursued by law enforcement, or that his
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failure to comply with commands at the scene was due to a belief that the Defendant
was not a law enforcement officer.” (Id. at 5.)
As the Court previously stated, claims of excessive force by law enforcement
officers arise under the Fourth Amendment and are analyzed under the Fourth
Amendment’s “objective reasonableness” standard. (ECF No. 147 at 7 (citing Graham
v. Connor, 490 U.S. 386, 388 (1989)).) “The question is whether the officer[’s] actions
are ‘objectively reasonable’ in light of the facts and circumstances confronting [the
officer], without regard to [the officer’s] underlying intent or motivation.” (Id. (citing
Graham, 490 U.S. at 397).)
While the Defendant has identified evidence of specific “bad acts” and has cited
two proper purposes under Rule 404(b)(2), the Court finds that whether Plaintiff has a
history of fighting law enforcement and resisting arrest has no real bearing on whether
the Defendant’s use-of-force on January 31, 2014 was objectively reasonable—the
material issue in this case. Id. Defendant was unaware of Plaintiff’s prior history of
resisting arrest and therefore it could not have informed his perception of risk when he
arrived on the scene, nor could it have informed his belief that Plaintiff was accelerating
his vehicle towards him and attempting to evade arrest. Moreover, as the Court
previously stated “evidence of which Defendant was unaware at the time of his conduct
would be irrelevant to the jury’s evaluation of the reasonableness of his conduct.” (ECF
No. 147 at 8.) Thus, irrespective of whether the proffered evidence establishes Plaintiff’s
intent to resist arrest or lack of accident at the time of the incident, the Court finds it
irrelevant and therefore inadmissible. Fed. R. Evid. 401.
B.

Prejudice and Confusion of Issues
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Rule 403 applies “with all its vigor” to Rule 404(b) evidence. United States v.
Guardia, 135 F.3d 1326, 1331 (10th Cir. 1998). A trial court is given broad discretion to
determine whether prejudice inherent in otherwise relevant evidence outweighs its
probative value, and will be reversed only upon a showing of clear abuse of that
discretion. See United States v. Esch, 832 F.2d 531, 535 (10th Cir. 1987); see also
Wolfgang v. Mid-America Motorsports, Inc., 111 F.3d 1515, 1526 (10th Cir. 1997).
Plaintiff argues that the “bad acts” evidence is inadmissible because such
evidence would be unfairly prejudicial and “would necessarily confuse the issue of the
objective reasonableness of the Defendant’s conduct with the Plaintiff’s disposition or
state of mind at the time of the shooting.” (ECF No. 157 at 5.) The Court agrees with
Plaintiff that the proffered evidence would likely mislead the jury by confusing the
objective reasonableness issue in the case. Similarly, the Court finds that admission of
the proffered evidence would be inherently and significantly prejudicial to the Plaintiff.
This is, in the Courts view, exactly the reason “bad acts” evidence is generally excluded
under Rule 404.
The Court finds that the danger of unfair prejudice and the potential for confusion
of the issues substantially outweighs the probative value, if any, of the proffered
evidence. Fed. R. Evid. 403. The Court concludes that Defendant seeks to admit this
evidence to show that “on a particular occasion,” Plaintiff “acted in accordance with” his
conduct on prior occasions. Fed. R. Evid. 404(b). Thus, the evidence is inadmissible
under both Rules 403 and 404(b).
II. CONCLUSION
For the reasons stated above, the Defendant’s construed Motion for
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Reconsideration (ECF No. 156) is DENIED.
Dated this 1st day of December, 2016.
BY THE COURT:

William J. Martínez
United States District Judge

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