Estate of James Strong Jr., The et al v. City of Northglenn, Colorado, The et al

Filing 163

ORDER Granting in Part and Denying in Part Defendant's Motions in Limine. For the reasons set forth above, the Court ORDERS that Defendant's Motion in Limine (ECF No. 130 ) is GRANTED IN PART, DENIED IN PART, and DEFERRED IN PART, as more fully set forth above. ORDERED deferring ruling on 130 Motion in Limine by Judge William J. Martinez on 7/24/2019.(angar, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 17-cv-1276-WJM-SKC
ESTATE OF JAMES STRONG, JR.,
Plaintiff,
v.
JASON SCHLENKER,
Defendant.

ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTIONS IN LIMINE

Plaintiff Estate of James Strong, Jr., (“Plaintiff”) brings this civil rights action
against Defendant Jason Schlenker (“Defendant”) under 42 U.S.C. § 1983 for use of
excessive force in violation of the Fourth Amendment arising out of the shooting death
of James Strong, Jr., in his home during the execution of a no-knock arrest warrant on
May 28, 2015. (ECF No. 33 ¶¶ 61–72.) The Court has explained the relevant factual
and legal background of this case in detail in other recent Orders (see ECF Nos. 121 &
156), and familiarity with that background is presumed.
Now before the Court is Defendant’s Motion in Limine (“Motion”). (ECF No. 130.)
For the reasons explained below, the Motion is granted in part, denied in part, and
deferred until trial in part.
I. ANALYSIS
A motion in limine allows a court to decide evidentiary issues in advance of trial
to avoid delay and ensure “an evenhanded and expeditious trial.” Dry Clean Super Ctr.,

Inc. v. Kwik Indus., Inc., 2012 WL 503510, at *4 (D. Colo. Feb. 15, 2012). A court will
generally not grant a motion in limine unless the moving party meets its burden of
showing that the evidence in question is clearly inadmissible on all potential grounds.”
Romero v. Helmerich & Payne Int’l Drilling Co., 2017 WL 3268878, at *3 (D. Colo. Aug.
1, 2017) (quoting Cook v. Peters, 2015 WL 10986407, at *1 (N.D. Okla. Jul. 30, 2015)).
The Court thus briefly reviews what Plaintiff must show to prevail at trial.
Plaintiff claims that Defendant used excessive force against Strong in execution
of the warrant. Excessive force claims brought under 42 U.S.C. § 1983 are analyzed
under the Fourth Amendment’s “objective reasonableness” standard, which asks
whether an officer’s actions are objectively reasonable in light of the facts and
circumstances, without regard to underlying intent or motivation. Graham v. Connor,
490 U.S. 386, 388, 397 (1989). Reasonableness is ev aluated under a totality of the
circumstances approach, which requires that the Court consider and balance three
factors: (1) “the severity of the crime at issue,” (2) “whether the suspect poses an
immediate threat to the safety of the officers or others,” and (3) “whether he is actively
resisting arrest or attempting to evade arrest by flight.” Thomson v. Salt Lake Cnty.,
584 F.3d 1304, 1313 (10th Cir. 2009) (quoting Graham, 490 U.S. at 396); see also
Lundstrom v. Romero, 616 F.3d 1108, 1126 (10th Cir. 2010) (ref erring to the Graham
factors as the “three, non-exclusive factors relevant to [an] excessive force inquiry”).
“Deadly force”—force which creates a substantial risk of death or serious bodily
harm—is “justified only if a reasonable officer in the officer’s position would have had
probable cause to believe that there was a threat of serious physical harm to himself or

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others.” Cordova v. Aragon, 569 F.3d 1183, 1189, 1192 (10th Cir. 2009)(deadly force
includes “force that is nearly certain to cause death, such as a shot to the head”);
Thomson, 584 F.3d at 1313 (internal quotation marks omitted).
To assess the degree of threat posed to officers, courts consider, among other
things, “(1) whether the officers ordered the suspect to drop his weapon, and the
suspect’s compliance with police commands; (2) whether any hostile motions were
made with the weapon towards the officers; (3) the distance separating the officers and
the suspect; and (4) the manifest intentions of the suspect.” Estate of Larsen v. Murr,
511 F.3d 1255, 1260 (10th Cir. 2008) (the Larsen factors). “Another important aspect
of this inquiry is whether the officers were in danger at the precise moment that they
used force.” Thomson, 584 F.3d at 1315 (internal quotation marks omitted). The Court
may further consider whether “the officers’ own reckless or deliberate conduct during
the seizure unreasonably created the need to use such force.” Cordova, 569 F.3d at
1188 (internal quotation marks omitted).
To prevail at trial, Plaintiff must prove to the jury by a preponderance of the
evidence that Defendant’s use of deadly force was not objectively reasonable. At this
juncture, Defendant files this pretrial Motion to raise evidentiary objections to certain of
Plaintiff’s evidence. The Court addresses each of Defendant’s ten objections in turn.
A.

Testimony of Thomas Gates
Defendant asks the Court to prohibit Thomas Gates from testifying at trial

because Gates was never disclosed as an expert nor did Plaintiff provide any materials
required by Federal Rule of Civil Procedure 26(a)(2). (ECF No. 130 at 2.) Plaintiff does

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not dispute that it failed to designate Gates as an expert pursuant to Rule 26(a)(2).
Under Rule 37(c), “[i]f a party fails to provide information or identify a witness as
required by Rule 26(a) or (e), the party is not allowed to use that information or witness
to supply evidence . . . at a trial, unless the failure was substantially justified or is
harmless.” Plaintiff does not provide any facts from which the Court could possibly
conclude that failure to designate Gates as a witness was substantially justified or
harmless. The Court thus grants this portion of the Motion. Gates cannot testify at trial.
B.

Testimony of Marcus Strong
Defendant seeks to exclude the testimony of fact witness Marcus Strong. (ECF

No. 130 at 2.) Plaintiff does not object to the exclusion of Strong’s testimony. The
Motion is thus conceded as to Marcus Strong, and the Court thus grants this portion of
the Motion. Marcus Strong may not testify at trial.
C.

“State of Mind” of James Strong
Defendant seeks to exclude evidence regarding Strong’s “state of mind” arguing

that it is not relevant to any of Graham or Larsen factors use to evaluate whether use of
deadly force was justified, or that any relevance is outweighed by its potential to
confuse or mislead the jury. (ECF No. 130 at 3–4.) Specifically, Defendant asks that
the Court prohibit testimony or argument “speculating that Strong fired his gun in order
to protect himself or his family.” (Id. at 4.)
Defendant seeks a broad prohibition on any speculation by any person at trial
that Strong fired his gun to protect himself. Defendant fails to establish that such
evidence would be “clearly inadmissible on all potential grounds.” See Romero, 2017

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WL 3268878 at *3. Moreover, it is unclear what type of evidence Plaintiff could offer as
to Strong’s state of mind, given that he is deceased. At present, this issue is
premature, and the Court defers ruling on it until the evidence comes in at trial.
D.

“Make My Day” Theory
Defendant asks the Court to preclude Plaintiff from arguing that Strong’s firing on

the officers was justified under Colorado’s so-called “make my day” law. That statute
states that an “occupant of a dwelling is justified in using any degree of physical force,
including deadly physical force, against another person when that person has made an
unlawful entry into the dwelling.” Colo. Rev. Stat. § 18-1-704.5.
The parties do not dispute that the police had a v alid warrant to enter the Strong
residence. Thus, in no sense was the entry into the Strong residence “unlawful,” and as
a result Strong’s use of force against the officers cannot be justified under the “make
my day” law. Plaintiff may not, therefore, argue that the Colorado statute justified
Strong firing at the officers.
E.

SWAT Protocol from Different Jurisdictions
Defendant seeks to exclude evidence related to “(1) the timing of the execution

of the warrant in terms of when the warrant was issued; (2) the execution of the warrant
with children present; and (3) the use of a flash bang outside the residence” under the
section heading “[p]rohibiting testimony/argument regarding SWAT protocols/practices
from other jurisdictions.” (ECF No. 130 at 5.) It appears that Def endant raises two
separate objections: one to argument or evidence that relies on SWAT practices from
other jurisdictions, and a second to evidence about how and when the warrant was

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executed because there is no evidence that Defendant was involved in those decisions.
The Court will defer ruling on Defendant’s objections until they are raised at trial.
Defendant has not established that such evidence is clearly inadmissible on all potential
grounds. See Romero, 2017 WL 3268878 at *3. However, for evidence to be admitted
over a relevance objection at trial, Plaintiff must show either how the SWAT practices of
other jurisdictions are evidence of a national standard and how that national standard
relates to the objective reasonableness of Defendant’s actions, or that Defendant had
some involvement in making decisions about how and when the warrant was executed.
F.

Problems with Investigation and Issuance of the Warrant
Defendant asks the Court to exclude “any evidence or argument relating to any

alleged inadequacies in the underlying investigation or the warrant leading to the noknock raid” as irrelevant to Plaintiff’s excessive force claim, or unduly prejudicial under
Rule 403 given that “Defendant had no involvement in the investigation.” (ECF No. 130
at 6.) The parties have already stipulated that Plaintiff’s expert will not present
testimony on the investigation that resulted in the search warrant. (ECF No. 156 at 5.)
The Court agrees with Defendant that any issues with the pre-warrant
investigation and issuance of the warrant are not relevant because they do not tend to
make the actions of Defendant in executing the search warrant on the Strong residence
more or less objectively reasonable. The Court thus grants this portion of Defendant’s
Motion; Plaintiff may not present evidence or argument related to the inadequacies in
the underlying investigation and issuance of the warrant leading to the no-knock raid.

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G.

Improper Tactics of Officer Wilson
Defendant also seeks to exclude “any evidence or argument challenging the

tactics of Wilson, or any inference that it was the negligent tactics of Wilson that
created the need for Defendant to use deadly force.” (ECF No. 130 at 6–7.) Plaintiff
asks that the Court reserve ruling “until such time as such evidence may be elicited or
developed during the course of trial.” (ECF No. 153 at 8.) The Court agrees with
Plaintiff. At this point, the Court will not categorically exclude evidence or argument
about Wilson’s tactics, but rather defer the question until any such evidence is
presented at trial. See Romero, 2017 WL 3268878 at *3. If challenged at trial, Plaintiff
must be able to articulate the relevance of Wilson’s tactics to the disputed facts in the
case and the impact on the objective reasonableness of Defendant’s actions.
H.

Danger to Others Present in the Home
Defendant also seeks to exclude “any evidence or argument regarding the

alleged risk to others inside the house besides James Strong.” (ECF No. 130 at 7.)
Defendant cites paragraphs in the complaint related to both the timing of the execution
of the warrant as well as the potential threat of bullets fired by Defendant that pierced
the floor and hit items in the basement.
Defendant contends that there is “no evidence in the record that Defendant
played any role in the decision as to the timing of the execution of the warrant,” and
thus any evidence or argument challenging that decision is irrelevant and unfairly
prejudicial. (ECF No. 130 at 7.) The Court agrees that if Plaintiff fails to establish that
Defendant was involved in the decision about when to execute the search warrant, then

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the information about potential dangers of the timing of the execution are irrelevant.
However, a motion in limine is “not a proper vehicle for a party to ask the Court to weigh
the sufficiency of the evidence.” Dry Clean Super Ctr., 2012 WL 503510, at *4 (internal
quotation marks omitted). The Court thus denies this part of the Motion without
prejudice to renewal at trial if Plaintiff attempts to introduce evidence on the propriety of
the timing of execution of the warrant without first establishing that Defendant had a
role in that decisionmaking process.
Defendant also argues that the “alleged risk to others inside the house is
irrelevant to the factors that the jury will need to consider under both Graham and
Larsen.” (ECF No. 130 at 7.) The Graham and Larsen factors for determining whether
use of deadly force is reasonable are not the exclusive factors for determining
reasonableness. See Lundstrom, 616 F.3d at 1126; Thomson, 584 F.3d at 1314.
Ultimately, the touchstone of the inquiry is objective reasonableness under the
circumstances. Defendant fails to develop an argument as to why this evidence is
irrelevant. The Court thus denies this part of the Motion without prejudice to renewal at
trial. If Defendant objects to such evidence at trial, he should be prepared to explain
why such evidence is irrelevant. See Plumhoff v. Rickard, 572 U.S. 765 (2014).
I.

Pain and Suffering Before Death
Defendant asks the Court to determine as a matter of law that Plaintiff is not

entitled to recover damages for any alleged pain and suffering by Strong before his
death, and therefore exclude the presentation of evidence or argument on this issue at
trial. (ECF No. 130 at 8–9.) Specifically, Defendant argues that § 1988 instructs the

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Court to use Colorado law to determine available damages, and then argues that
Colorado law “precludes recovery of any alleged pain and suffering of the decedent in a
wrongful death action.” (Id. at 8.) Plaintiff does not oppose exclusion of this evidence.
(ECF No. 153 at 9.)
As discussed above, a motion in limine does not test the sufficiency of the
evidence, nor may it be a substitute for a summary judgment motion. Dry Clean Super
Ctr., 2012 WL 503510, at *4; Equal Employment Opportunity Comm’n v. Bok Fin.
Corp.,2014 WL 11730480, at *1 (D.N.M. Feb. 12, 2014) (“It is well-established that a
motion in limine should not be used to argue that an item of damages may not be
recovered as that is the function of a motion for summary judgment, with its
accompanying procedural safeguards.”); see also WJM Revised Practice Standard
III.F.1 (“A motion in limine that is a veiled motion for summary judgment may also be
denied out of hand.”).
Despite Plaintiff’s non-opposition in its briefing, the Court will not allow Defendant
to raise a summary judgment issue in a motion in limine. Had this same issue been
raised but not opposed on summary judgment, the Court would have had an obligation
to sua sponte review the sufficiency of Defendant’s argument. See Reed v. Bennett,
312 F.3d 1190, 1195 (10th Cir. 2002) (“a party’s failure to file a response to a summary
judgment motion is not, by itself, a sufficient basis on which to enter judgment against
the party”). The Court thus denies the Motion as it pertains to pain and suf fering
damages.
The Court strongly recommends that the parties be prepared to address, m ost

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likely in the context of a Rule 50(a) motion by Defendant, whether pain and suffering
damages are available to Plaintiff. The Court also notes that in Berry v. City of
Muskogee, 900 F.2d 1489 (10th Cir. 1990), the Tenth Circuit found that “supplementing
a state survival action with a state wrongful death action does not satisfy the criteria of §
1988 for borrowing state law” because “[a]pplication of state law, at least in some
instances, will be inconsistent with the predominance of the federal interest.” Id. at
1506; see Wilson v. City of Lafayette, 510 F. App’x 775, 784 (10th Cir. 2013) (“[W]e first
considered the possibility that we might instead borrow from state law. . . as authorized
by 42 U.S.C. § 1988. We refused to do so.” (Briscoe, C.J., concurring in judgment in
part and dissenting in part)).
The Tenth Circuit thus concluded that “the federal courts must fashion a federal
remedy to be applied to § 1983 death cases” and “m ake available to plaintiffs sufficient
damages to serve the deterrent function central to the purpose of § 1983.” Berry, 900
F.2d at 1506–07. According to that court, appropriate compensatory damages include
medical and burial expenses, pain and suffering before death, loss of earnings based
on probable duration of victim’s life, victim’s loss of consortium, and other damages
recognized in common law tort actions. Id. at 1507.1

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Defendant seemingly suggests that, in determining the damages available, the Tenth
Circuit applied Oklahoma law. (ECF No. 130 at 8 n.1.) This reasoning appears to be
inconsistent with the text of Berry and the Tenth Circuit’s subsequent pronouncement that
differences between Oklahoma and Colorado law would not change the outcome in Berry. See
Wilson, 510 F. App’x at 785 (“[T]he fact that Colorado’s wrongful death statute may differ from
the Oklahoma wrongful death statute at issue in Berry does not compel a contrary conclusion.”
(Briscoe, C.J., concurring in judgment in part and dissenting in part)). But see Frontier Ins. Co.
v. Blaty, 454 F.3d 590, 603 (6th Cir. 2006).

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J.

Loss of Consortium and Emotional Distress of Family Members
Defendant seeks to exclude testimony related to loss of family consortium

among the surviving family members. (ECF No. 130 at 9.) In response, Plaintiff argues
that Strong’s heirs may recover under Colorado’s wrongful death statute. (ECF No. 153
at 9–11.) However, the only remaining claim in this lawsuit is a § 1983 survival claim
against Defendant brought by the Estate of Strong. No family member makes a
wrongful death claim under Colorado law. Therefore, recovery is limited to what is
permitted under the survival action.
The Tenth Circuit has determined that the appropriate federal remedy for § 1983
death cases is a survival action brought by the estate of the deceased victim, and
concluded that “appropriate compensatory damages would include medical and burial
expenses, pain and suffering before death, loss of earnings based upon the probable
duration of the victim’s life had the injury not occurred, the victim’s loss of consortium,
and other damages recognized in common law tort actions.” Berry, 900 F.2d at
1506–07. Familial loss of consortium is not an available remedy under this cause of
action. Therefore, loss of consortium of survivors is not relevant to any potential
damages. The Court thus grants this portion of the Motion. Ms. Lanhisha Richmond,
Strong’s live-in partner at the time of his death, may not testify on her personal loss of
consortium or loss of familial consortium.
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS that Defendant’s Motion in
Limine (ECF No. 130) is GRANTED IN PART, DENIED IN PART, and DEFERRED IN

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PART, as more fully set forth above.

Dated this 24th day of July, 2019.
BY THE COURT:

William J. Martínez
United States District Judge

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