Roguz v. Walsh et al
Filing
151
Memorandum Ruling on the Parties' Motions in Limine. 04/05/2013.(Jones, L)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
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Christopher Roguz,
Plaintiff,
MEMORANDUM RULING ON THE
PARTIES’ MOTIONS IN LIMINE
-againstCase No. 09-1052 (TLM)
Jeffrey Walsh and City of New Britain,
April 5, 2013
Defendants,
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THE DECISION OF THE COURT
Plaintiff Christopher Roguz brought this action against defendants Jeffrey Walsh and the
City of New Britain. Plaintiff alleges claims against Walsh for false arrest, unlawful entry, and
excessive force under the Fourth Amendment and 42 U.S.C. § 1983. He additionally alleges
Connecticut state law claims against Walsh for assault and battery and negligent infliction of
emotional distress. Finally, he brings indemnification claims against the City of New Britain.1
For a detailed history of the alleged facts of the June 4, 2007 incident from each party’s
perspective, see the Court’s memorandum ruling on summary judgment. [Rec. Doc. 135], Roguz
v. Walsh, 09-1052, 2012 WL 6049580 (D. Conn. Dec. 5, 2012).
In anticipation of trial, plaintiff Roguz and defendant Walsh brought numerous motions
in limine to preclude certain evidence. Plaintiff seeks to preclude evidence of: 1) plaintiff’s
1
In the summary judgment ruling, the Court dismissed the following of plaintiff’s claims against
the City of New Britain: a Monell claim for failure to train, failure to supervise, and failure to
investigate and a claim for indemnification under Connecticut state law based on the Monell
claim. [Rec. Doc. 135]. Additionally, the following of plaintiff’s claims against Walsh were
dismissed: indemnification claims on the wanton, willful, malicious assault and battery,
negligent assault and battery, false arrest, and negligent infliction of emotional distress claims
against Walsh and on the Monell claim against the City of New Britain for failure to train, failure
to supervise, and failure to investigate. Id.
1
interactions with emergency medical personnel after the incident with Walsh concluded [Rec.
Docs. 106, 108, 109]; 2) plaintiff’s criminal history [Rec. Docs. 106, 107, 110, 111, 112, 113,
114, 115]; 3) certain testimony from defendant Walsh’s proposed expert witness Daniel Wick
[Rec. Doc. 107]; and 4) plaintiff’s arrest related to the 2007 incident [Rec. Doc. 116, 117].
Defendant Walsh seeks to preclude the following evidence: 1) Walsh’s arrest and
criminal prosecution [Rec. Doc. 100]; 2) plaintiff’s proposed expert Dr. H. Wayne Carver’s
report and testimony regarding the causation of plaintiff’s abdominal injury [Rec. Doc. 101]; 3)
opinion evidence from New Britain Police Department employees regarding whether the force
used by Walsh was unreasonable, criminal, or constituted a terminable offense [Rec. Doc. 102];
4) evidence of the dismissal of the criminal charges against plaintiff [Rec. Doc. 103]; 5) evidence
of the policies or guidelines of the City of New Britain Police Department [Rec. Doc. 104]; 6)
evidence of Walsh’s departure from the City of New Britain Police Department [Rec. Doc. 105];
and 7) evidence of the City of New Britain Police Department’s investigation of Walsh’s conduct
during the 2007 incident [Rec. Doc. 118].
For the reasons that follow, the Court will grant, deny, grant in part, and deny in part the
parties’ motions.
I.
Standard for Assessing Relevant Evidence in an Excessive Force Claim
Plaintiff’s excessive force claim is governed by the Fourth Amendment’s “objective
reasonableness” standard. Graham v. Connor, 490 U.S. 386, 388 (1989). Determining whether
the force used was reasonable “requires a careful balancing of the nature and quality of the
intrusion on the individual’s Fourth Amendment interests against the countervailing
governmental interests at stake.” Id. at 396 (quotations and citations omitted). The assessment
involves consideration of the facts and circumstances confronting the officer, including the
2
severity of the crime at issue, whether the suspect posed an immediate threat to the officers or
others, and whether the suspect was resisting arrest or attempting to flee to evade arrest. Graham,
490 U.S. at 396. Reasonableness is judged “from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight,” while considering that “police officers are
often forced to make split-second judgments—in circumstances that are tense, uncertain and
rapidly evolving—about the amount of force that is necessary in a particular situation.” Id. at
397.
II.
Plaintiff’s Interactions with Emergency Medical Personnel
Plaintiff moved to preclude the testimony and other related evidence of Craig Nolan and
Alexander Hilliard of New Britain Emergency Medical Services (“the paramedics”) regarding
certain aspects of their interactions with plaintiff. On June 4, 2007, Nolan and Hilliard went, as
paramedics, to Torkom Drive to treat plaintiff’s injuries and to take him to the hospital. Plaintiff
seeks to preclude the paramedics’ testimony regarding his spitting, the need to place a mask on
him as a result of his behavior, and any opinion testimony regarding whether they believed he
was intoxicated. [Rec. Doc. 106]. He also seeks to preclude two New Britain Police Reports that
document interviews with Nolan and Hilliard and the statements that Nolan and Hilliard gave to
the New Britain Police Department. [Rec. Doc. 108]. He seeks redaction of references of his
abusive behavior and spitting from the New Britain EMS Report. Id. Finally, plaintiff moves to
preclude Walsh’s expert Daniel Wick from testifying about his interactions with Nolan and
Hilliard. [Rec. Doc. 107]. Plaintiff argues that those aspects of the paramedics’ testimony,
statements, and reports would amount to impermissible character evidence under Rule 404 and
would be unfairly prejudicial under Rule 403 due to the similarities between Nolan and Hilliard’s
allegations regarding plaintiff’s actions during his treatment and transport and Walsh’s
3
allegations regarding plaintiff’s actions during the incident that took place earlier in the night and
that are at the center of this litigation.
Defendant Walsh presents one argument in favor of admission of Nolan’s and Hilliard’s
allegations regarding plaintiff’s actions: Their testimony is admissible as personal observations
of a lay witness. [Rec. Doc. 128]. While it is true that the paramedics’ proffered testimony about
their observations of plaintiff does not run afoul of Rule 701’s requirement that lay testimony
must be “rationally based on the witness’s perception,” defendant Walsh’s argument does not
address plaintiff’s Rule 403 and 404 objections.
The City of New Britain argues that the testimony and reports of the paramedics are
“relevant to understanding what the [sic] defendant Walsh was confronted with when he
responded to this call for police service.” [Rec. Doc. 120]. The paramedics arrived after the
incident at the center of this litigation ended: Plaintiff does not allege that any excessive force
occurred after the paramedics arrived at the scene. In an excessive force case, “[t]he question is
whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances
confronting them . . . .” Bryant v. City of New York, 404 F.3d 128, 136 (2d Cir. 2005) (internal
citations omitted). The paramedics were not present to observe the facts and circumstances that
confronted defendant Walsh. Events that occurred after the alleged use of excessive force took
place, including after Walsh left plaintiff’s presence, are not probative of the reasonableness of
Walsh’s decisions made before the paramedics arrived. See Salim v. Proulx, 93 F.3d 86, 92 (2d
Cir. 1996) (“The reasonableness inquiry depends only upon the officer’s knowledge of
circumstances immediately prior to and at the moment he made the split-second decision to
employ deadly force.”). Therefore, the paramedics’ observations regarding the plaintiff’s spitting
4
and other behavior are not relevant evidence of the facts and circumstances that confronted
Walsh when he made the decision to use force.
The City asserts that the testimony and reports of the paramedics are relevant to what
defendant Walsh observed and are not evidence of specific acts used to prove character in order
to show that on a particular occasion the plaintiff acted in accordance with that character in
contravention of Rule 404(b). Rule 404(b) provides that:
Evidence 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. This evidence may be admissible for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of
accident.
Fed. R. Evid. 404.2
While the City asserts that its proposed use of the evidence does not violate Rule 404(b),
the City’s explanation of its proposed use is precisely as impermissible character evidence:
Evidence of Roguz’s actions after the incident helps establish what defendant Walsh experienced
when he arrived, or, in other words, that Roguz’s actions after the incident prove that he acted
similarly during the incident. Evidence of Roguz’s behavior after the alleged excessive force
occurred is not admissible as character evidence to prove propensity to act in accordance with
that character. Because the evidence of the paramedics’ allegations that plaintiff spit and was
abusive during their interactions with him has not been offered to prove anything other than the
plaintiff’s bad character, Rule 404(b) bars such evidence. No reference to these aspects of the
plaintiff’s behavior after the alleged excessive force occurred may be made.
2
The Court notes that neither Walsh nor the City of New Britain have argued that any of the
evidence in this case could be used for any of the other purposes laid out by Rule 404(b) as
exceptions to the general prohibition against character evidence used to prove propensity.
5
However, the paramedics’ observations of plaintiff and their belief, based on those
observations, as to whether plaintiff was intoxicated are relevant to the facts and circumstances
that confronted Walsh because plaintiff’s intoxication at the time of the paramedics’ arrival is
reasonably related to his level of intoxication shortly before their arrival during his interactions
with Walsh. A person who has personal knowledge from observation is competent to testify as to
whether an individual is intoxicated. See Fed. R. Evid. 701.3 Testimony regarding plaintiff’s
spitting or his “abusive” behavior may then be relevant to the paramedics’ observations of his
intoxication. While the paramedics’ belief that plaintiff was intoxicated because they observed
his spitting or abusive behavior may be relevant to something other than propensity to act in
accordance with character, it is still not admissible under the Rule 403 analysis. Rule 403 allows
the exclusion of evidence if its probative value is substantially outweighed by the danger of
unfair prejudice. Plaintiff’s actions during his encounter with the paramedics, while having some
relevance to his intoxication, are nonetheless inadmissible because the danger of unfair prejudice
substantially outweighs any probative value the testimony might have in light of the nature of the
positions taken by Roguz and by Walsh regarding what occurred during their earlier encounter.
For the same reason, the police reports, sworn statements by Nolan and Hilliard given to the New
Britain Police Department, and the New Britain EMS Prehospital Care Summary are not
admissible as evidence of plaintiff’s behavior during his encounter with Walsh.
III.
Plaintiff’s Criminal History
Plaintiff moved to preclude testimony regarding and evidence of his arrests and
convictions arising from incidents unrelated to this litigation. [Rec. Docs. 106, 107, 110, 111,
112, 113, 114, 115]. He seeks to preclude evidence of six arrests and one nolo contendere: 1) an
3
Rule 701 allows a lay witness to give testimony “rationally based on the witness’s perception.”
6
August 26, 2009 arrest for disorderly conduct and assault; 2) an August 27, 2009 arrest for
disorderly conduct, criminal mischief and a nolo contendere for breach of peace; 3) an October
24, 2009 arrest for assault on police, breach of peace, assault, and failure to provide fingerprints;
4) an October 24, 2009 arrest for violation of protective order; 5) a December 19, 2010 arrest for
interfering with an officer, violation of a protective order, and failure to appear; and 6) an April
10, 2012 arrest for disorderly conduct and interfering with an officer. Plaintiff argues that any
reference to or evidence of these arrests and the nolo contendere should be precluded under
Rules 403 and 404(b) and are inadmissible for impeachment purposes under Rules 608 and 609.
Walsh objected to plaintiff’s motion and framed his objection in terms of the evidence’s
admissibility for impeachment purposes. [Rec. Doc. 128].
Because all of the arrests and the nolo contendere occurred after the incident at the center
of this litigation, they are not relevant evidence of the facts and circumstances that confronted
Walsh on June 4, 2007. The arrests and the nolo contendere are additionally not admissible as
other acts or wrongs to show that plaintiff has a certain predisposition that he acted consistent
with during the event in question. Fed. R. Evid. 404(b).4
Plaintiff additionally asserts that the arrests are not admissible as impeachment evidence.
Rule 609(a)(1) permits the introduction of evidence related to a witness’s prior conviction if the
prior crime was punishable by more than one year in prison. However, arrests are not admissible
under Rule 609. “Arrest without more does not, in law any more than in reason, impeach the
integrity or impair the credibility of a witness.” Michelson v. United States, 335 U.S. 469, 482
(1948). Therefore, plaintiff’s arrests are not admissible as impeachment evidence. Furthermore,
4
The Court again notes that neither Walsh nor the City of New Britain argued that this evidence
is admissible for any permissible use under 404(b).
7
plaintiff’s nolo contendere was not punishable by more than one year in prison and is also
inadmissible as impeachment evidence.
Walsh responds by arguing that the charges are still pending and could become felony
convictions admissible to impeach plaintiff’s character for truthfulness under Rules 608 and 609.
Under Rule 609(a)(1),5 the admissibility of convictions for the purpose of attacking character for
truthfulness is subject to the Rule 403 balancing test. Rule 403 allows the exclusion of relevant
evidence if the probative value is substantially outweighed by the danger of unfair prejudice. The
Court will consider the admissibility of plaintiff’s criminal record should any of his previous
arrests result in felony convictions prior to the commencement of trial and upon the motion being
reurged. However, the Court notes the strong likelihood of a finding of unfair prejudice under
the Rule 403 balancing test for the arrests in question, many of which were for similar conduct
and offenses as the June 4, 2007 event at the center of this litigation. The Second Circuit has
cautioned that where the conviction is for the same offense, “[t]he potential for prejudice . . . is
greatly enhanced.” United States v. Puco, 453 F.2d 539, 542 (2d Cir. 1971). Accordingly,
plaintiff’s motions seeking preclusion of testimony regarding and evidence of his arrests and
convictions arising from incidents unrelated to this litigation will be granted.
IV.
Plaintiff’s Arrest and Dismissal of the Charges Related to the 2007 Incident
Plaintiff seeks to preclude evidence of his arrest stemming from the incident underlying
this litigation [Rec. Doc. 116], and defendant Walsh seeks to preclude evidence of the dismissal
of those charges [Rec. Doc. 103]. The fact that plaintiff was arrested is plainly relevant to his
excessive force claim. In Graham v. Connor, the Supreme Court held that the reasonableness
5
Walsh does not argue that any of the arrests, should they result in convictions, would be
admissible to impeach character for truthfulness as crimes involving dishonesty or false
statements under Rule 609(a)(2).
8
analysis for excessive force cases under the Fourth Amendment “requires careful attention to the
facts and circumstances of each particular case, including the severity of the crime at issue.” 490
U.S. 386, 396 (1989) (emphasis added). Furthermore, the Second Circuit applied Graham to hold
that the crime in question is relevant to evaluating the objective reasonableness of an officer’s
use of force. Davis v. Rodriguez, 364 F.3d 424, 436 (2d Cir. 2004).
Walsh moved to preclude evidence of the dismissal of the criminal charges filed against
plaintiff. However, under Connecticut law, favorable termination is an element of a section 1983
false arrest claim. See Miles v. City of Hartford, 445 F. App'x 379, 383 (2d Cir. 2011) (citing
Roesch v. Otarola, 980 F.2d 850, 853–54 (2d Cir. 1992)). The jury will be instructed in the
Court’s final jury instructions that the unconditional dismissal of charges is considered a
favorable termination. See Venghaus v. City of Hartford, 3:06CV01452 DJS, 2012 WL 1050014
(D. Conn. Mar. 27, 2012) (discussing the state of the favorable termination requirement under
Connecticut state law and Second Circuit precedent). The motions to preclude evidence related
to plaintiff’s 2007 arrest and dismissal of the charges for which he was arrested will be denied.
V.
Expert Testimony of Dr. H. Wayne Carver
Defendant Walsh’s Motion in Limine and Daubert motion requests the preclusion of the
testimony and the October 29, 2007 report of plaintiff’s proposed expert witness Dr. H. Wayne
Carver, Chief Medical Examiner of the State of Connecticut, regarding the causation of the
plaintiff’s abdominal injury. [Rec. Doc. 101]. The City of New Britain objects to Walsh’s
motion [Rec. Doc. 122], as does plaintiff [Rec. Doc. 129]. Dr. Carver reviewed photographs of
plaintiff’s abdominal wound, photographs of the restraint and safety devices used in an
ambulance, and a sample police baton to form an opinion as to whether plaintiff’s “abdominal
injury [was] consistent with the restraint/safety devices on the ambulance transport cart or . . .
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with a wound from a [collapsible] police baton . . . .” [Rec. Doc. 101]. Based on the
photographs, Dr. Carver analyzed the shape, location, and color of plaintiff’s contusions and
wounds and compared them to the ambulance’s devices and a sample police baton. His review
was not done in response to this litigation, but rather in connection with the New Britain Police
Department’s internal investigation of Walsh’s conduct. Walsh does not challenge Dr. Carver’s
qualifications as a medical expert. Rather, Walsh argues that Dr. Carver’s testimony (1) does not
meet the reliability requirements of Daubert, (2) is not based on scientific, technical, or other
specialized knowledge, and (3) will not assist the jury and gives an opinion as to an ultimate fact.
Pursuant to the Federal Rules of Evidence, expert testimony is properly admitted where
“the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;” and “the testimony is based on sufficient
facts or data; the testimony is the product of reliable principles and methods; and the expert has
reliably applied the principles and methods to the facts of the case.” Fed. R. Evid. 702. To be
admissible, expert testimony must be both relevant and reliable. Daubert v. Merrell Dow
Pharms., 509 U.S. 579, 597 (1993). Daubert listed a series of factors that, while not a
“definitive checklist or test,” may be considered when determining whether proffered expert
testimony “has the required indicia of scientific reliability: whether a theory or technique had
been and could be tested, whether it had been subjected to peer review, what its error rate was,
and whether scientific standards existed to govern the theory or technique's application or
operation.” Nimely v. City of New York, 414 F.3d 381, 396 (2d Cir. 2005) (quoting Daubert, 509
U.S. at 593–94). The test of reliability, however, is flexible, and Daubert’s factors “neither
necessarily nor exclusively appl[y] to all experts or in every case.” Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 141 (1999). In addition to determining that a witness is qualified to
10
testify as an expert and that the opinion is based on reliable data and methodology, the witness’s
testimony must “assist the trier of fact.” Fed. R. Evid. 702; Nimely, 414 F.3d at 397.
Walsh argues that Dr. Carver’s testimony does not meet the reliability requirements of
Daubert because it is not based on scientific knowledge or a valid scientific methodology.
Specifically, Walsh asserts that the comparison of photographs is not a reliable methodology and
implies that this makes Dr. Carver’s opinion “mere speculation.” Dr. Carver’s proffered
testimony is based on scientifically-testable observations about the appearance of wounds and
contusions resulting from different causes. See Korsko v. Pizarro, 2010 WL 3615021 (D. Conn.
Sept. 10, 2010) (allowing medical expert to testify about the age of contusions depicted in
photographs based on his medical training and experience). Dr. Carver testified at his deposition
that contusions “tend to reflect the shape of the thing that caused them” and that cylindrical
objects commonly create a specific contusion shape and pattern. Carver Dep. [Rec. Doc. 129].
Cross-examination at trial is the appropriate means for challenging Dr. Carver’s opinion.
Daubert, 509 U.S. 579, 596 (1993) (“Vigorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof are the traditional and appropriate means
of attacking shaky but admissible evidence.”). Walsh will be free to subject Dr. Carver’s opinion,
methodology, data, or sources to rigorous cross-examination at trial.
Walsh further argues that Dr. Carver’s opinion regarding whether plaintiff’s abdominal
injuries were consistent with the devices in the ambulance cart or with a cylindrical object is
inadmissible as it will not assist the jury because it “substitute[s] Dr. Carver’s conclusions about
the reasonableness of Officer Walsh’s action for those of the jury” and wrongly “giv[es] an
opinion as to the ultimate fact in issue.” [Rec. Doc. 101]. The Second Circuit has held “that
expert testimony that usurps either the role of the trial judge in instructing the jury as to the
11
applicable law or the role of the jury in applying that law to the facts before it, by definition does
not aid the jury in making a decision; rather, it undertakes to tell the jury what result to reach,
and thus attempts to substitute the expert’s judgment for the jury’s.” Nimely, 414 F.3d at 397
(internal quotations and citations omitted). On the other hand, an expert may testify as to factual
conclusions, including the ultimate issue of fact in the case. See United States v. Duncan, 42
F.3d 97, 102–03 (2d Cir. 1994); Fed. R. Evid. 704(a) (“An opinion is not objectionable just
because it embraces an ultimate issue.”).6 Dr. Carver’s proffered testimony does not involve
legal conclusions regarding the objective reasonableness of the force used, but rather expresses
an opinion that certain shapes, colors, and locations of wounds and contusions reflect the
causation of those wounds and contusions. Walsh’s argument that Dr. Carver’s testimony will
not aid the jury because it gives a legal conclusion as to reasonableness or because it wrongly
goes to the ultimate fact in issue is without merit. Accordingly, defendant Walsh’s motion to
preclude Dr. Carver’s testimony will be denied.
Walsh also moved to preclude Dr. Carver’s report from being introduced into evidence.
During his testimony, Dr. Carver may refer to his report, but may not read it to the jury, and the
report will not be admitted into evidence.
VI.
City of New Britain Police Department Policies
Walsh seeks to preclude “all evidence, testimony, and argument regarding the City of
New Britain Police Department’s General Orders, rules of conduct, policies, and procedures
6
The Advisory Committee Notes to Rule 704 provide a helpful example of the distinction
between an impermissible legal conclusion and a permissible factual conclusion, cited in
Duncan, 42 F.3d at 103:
Thus the question, “Did T have capacity to make a will?” would be excluded, while the
question, “Did T have sufficient mental capacity to know the nature and extent of his
property and the natural objects of his bounty and to formulate a rational scheme of
distribution?” would be allowed.
12
(collectively ‘policies’)” because it is irrelevant and its probative value is outweighed by its
prejudicial effect. [Rec. Doc. 104]. Walsh argues that the objective reasonableness inquiry
central to excessive force analysis is not capable of a precise definition, is meant to consider all
facts and circumstances of the case, and cannot be confined to the framework established by the
New Britain Police Department through its policies and guidelines. Walsh argues further that the
Supreme Court in Whren v. United States, 517 U.S. 806 (1996), concluded “that because police
rules, practices, and regulations vary from place to place and from time to time, they are an
unreliable gauge by which to measure the objectivity and/or reasonableness of police conduct.”
[Rec. Doc. 104].
In opposition, the City of New Britain argues that the New Britain Police Department’s
policies are relevant to the indemnification claims against the City under Connecticut General
Statute 7-465, which requires that defendant Walsh “was acting in the performance of his duties
and within the scope of his employment,” and that the damages were “not the result of any
willful or wanton act of such employee in the discharge of such duty.” [Rec. Doc. 125]. In
particular, the City argues that violation of the Department’s rules of conduct is relevant in
determining whether Walsh acted in the performance of his duties and within the scope of his
employment and/or whether his actions were willful and wanton. Plaintiff objected and argued
the evidence is relevant and not unfairly prejudicial.
The Court agrees with Walsh that the City’s policies are not a substitute for a
constitutional standard and that violation of or compliance with the City’s policies cannot replace
the Fourth Amendment inquiry. While Whren involved the constitutionality of searches and not
excessive force, 517 U.S. at 815, its analysis of the Fourth Amendment reasonableness inquiry
for searches and seizures easily applies to the excessive force reasonableness inquiry as well. See
13
Thompson v. City of Chicago, 472 F.3d 444, 455 (7th Cir. 2006) (“[W]e are confident that, if
confronted with the question of whether police manuals, guidelines or general orders are ‘reliable
gauges’ of the reasonableness of an officer’s use of force, the Court would reach the same
conclusion that it did in Whren.”). The City’s policies are not relevant to the excessive force
claim; however, the policies do serve as guidelines for the evaluation of an officer’s job
performance, and accordingly are relevant in this case as to whether Walsh was acting within the
scope of his employment. Therefore, in the event that the case is not bifurcated, evidence
relating to the City’s policies will be admissible, but a limiting instruction will be given to
instruct the jury that it may not consider the City’s policies in evaluating the reasonableness of
the force used by Walsh but may only consider the City’s policies in determining whether or not
Walsh was acting within the scope of his employment at the time of his interaction with plaintiff.
VII.
Reasonableness of Walsh’s Actions
In several of his motions in limine [Rec. Docs. 100, 102, 104, 105, 118], Walsh moved to
preclude evidence for lack of “relevance” based on the theory that any testimony or evidence that
explicitly or implicitly states that Walsh’s use of force was improper replaces the constitutional
standard and dictates the verdict to the jury. Walsh’s argument in these motions is substantially
similar to his argument regarding the City’s policies. Walsh argues that evidence of his arrest,
criminal prosecution, and departure from employment after the 2007 incident would substitute
the criminal standard or the employment standard, respectively, for the Fourth Amendment
excessive force standard. [Rec. Docs. 100, 105]. He also argues that any testimony from City of
New Britain employees that Walsh’s actions were unreasonable, criminal, terminable, or in
violation of the City of New Britain’s policies would substitute the witnesses’ opinions regarding
force and the standards of criminal law, employment law, and the City of New Britain’s policies
14
for the constitutional excessive force standard. [Rec. Doc. 102]. Similarly, he argues that the
internal investigation and its findings would substitute the investigation for the constitutional
analysis. [Rec. Doc. 118]. Because these arguments are essentially the same as far as they relate
to the constitutional standard for an excessive force claim, they will be considered together.7
“Witnesses may not present testimony in the form of legal conclusions.” Cameron v. City of
New York, 598 F.3d 50, 62 (2d Cir. 2010) (quotations and citations omitted). This rule applies to
both expert and lay witnesses, id., and prohibits explicit legal conclusions and any testimony that
implicitly communicates a legal standard to the jury. Hygh v. Jacobs, 961 F.2d 359, 364 (2d Cir.
1992). In Hygh, the Second Circuit applied this rule to expert testimony about the use of force in
a section 1983 case. Id. The expert “was questioned extensively concerning [the officer’s] use of
force,” during which he tendered conclusions the Court deemed to violate the rule prohibiting
testimony regarding legal conclusions. Id. Specifically, the Circuit Court pointed to the expert’s
“conclusory condemnations” of the officer’s actions, including that his conduct “was not
‘justified under the circumstances,’ not ‘warranted under the circumstances,’ and ‘totally
improper.’” Id. The Circuit Court found that this testimony “merely told the jury what result to
reach.” Id. (citing the Advisory Committee Note to Rule 704). The Circuit Court compared this
inadmissible evidence with the expert’s other testimony, which was “a larger body of otherwise
unobjectionable testimony concerning police procedures involving violent arrestees from which
the jury could easily have drawn the same conclusions that [the expert] did.” Id. at 365. Any
witness called to testify at trial must testify only in accordance with Hygh and may not testify in
the form of legal conclusions. Such witnesses may, however, if otherwise qualified, testify to
7
Other evidentiary issues related to Walsh’s arrest and criminal prosecution, departure from
employment, and the internal affairs investigation are dealt with more fully in Sections IX, X,
and XI.
15
general police procedures. All documentary evidence sought to be introduced at trial must
likewise comport with Hygh.
Similarly, Walsh argues that testimony regarding whether Walsh’s actions were in
violation of the City of New Britain policies is not relevant and would encourage the jury to use
the standard of the City of New Britain police guidelines or policies in lieu of the constitutional
standard. The Court agrees that the opinions of the City of New Britain employees regarding
whether Walsh violated the City’s policies cannot establish a constitutional violation for the
reasons set out above. However, whether Walsh was in violation of the City’s policies is relevant
to the inquiry of whether he was acting within the scope of his employment, as required for
indemnification under Connecticut General Statute 7-465. Accordingly, the employees, if
otherwise qualified, may testify as to Walsh’s violations of the policies. For the same reason,
there can also be testimony regarding the investigation and the findings made by the
investigation. In the event that the case is not bifurcated, a limiting instruction will be given to
the jury instructing them that violations of the policies and guidelines of City of New Britain and
the result of the Department’s investigation are not to be considered as evidence that Walsh
committed a constitutional violation in regards to plaintiff’s excessive force claim but may be
considered to ascertain whether or not Walsh was acting within the scope of his employment.
VIII.
Expert Testimony of Daniel Wick
Plaintiff seeks to preclude certain aspects of Walsh’s proposed expert witness Daniel
Wick’s testimony: 1) plaintiff’s spitting and other behavior in front of the paramedics; 2)
reference to plaintiff’s experience as a “fighter”; 3) reference to irrelevant “outside studies”; and
4) reference to an incident between police and a handcuffed individual in Florida. [Rec. Doc.
107].
16
Wick’s proposed testimony raises serious admissibility issues. Wick’s report gives the
opinion that the force used by Walsh “was objectively reasonable based on the totality of the
circumstances.” This, and many other statements made in the report, violates Hygh’s prohibition
on “conclusory condemnations” of an officer’s actions, including that the conduct “was not
‘justified under the circumstances,’ not ‘warranted under the circumstances,’ and ‘totally
improper.’” Hygh, 961 F.2d at 364. Additionally, the report includes extensive inadmissible legal
conclusions and argumentation. See, e.g., Nimely, 414 F.3d at 397 (finding improper “expert
testimony that usurps either the role of the trial judge in instructing the jury as to the applicable
law”). Based on the present state of the record, the Court is also concerned with Wick’s ability to
be qualified as an expert under Daubert. Accordingly, before Wick may testify, the Court will
conduct a Daubert hearing to evaluate Wick’s qualifications and the admissibility of his
purported testimony. If Wick is qualified as an expert or otherwise permitted to testify, Wick’s
testimony will be subject to the restrictions set out in this ruling in all respects.
In no event will Wick’s report be admitted into evidence. His report is essentially a legal
brief and contains numerous impermissible legal conclusions.
IX.
Walsh’s Arrest and Criminal Prosecution
Walsh’s motion in limine to preclude evidence of his arrest and criminal prosecution
presents several issues in addition to the relevance objection addressed in Section VII. [Rec.
Doc. 100]. Walsh also argues that the danger of unfair prejudice outweighs the probative value,
which would prevent the admissibility of the arrest and prosecution for the purpose of proving
that Walsh was not acting within the scope of his employment. The City argues that Walsh’s
arrest and prosecution are relevant as to whether Walsh was acting outside the scope of his
employment and/or was acting willfully or wantonly, thus negating any liability on behalf of the
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City to indemnify plaintiff for Walsh’s conduct, but does not address the danger of unfair
prejudice. [Rec. Doc. 121]. Without further explanation, plaintiff’s objection argues that the
testimony related to the criminal investigation may be admissible at trial as impeachment
evidence or as prior inconsistent statements. [Rec. Doc. 127].
Walsh’s arrest and prosecution have little probative value. While they provide some
evidence of whether Walsh was acting within the scope of his employment because it was his
employer who decided to pursue arrest, that decision related to the criminal case against Walsh
was made by the Police Department in its capacity as a law enforcement agency rather than as
his employer. Furthermore, arrests are not probative of the facts underlying the arrest. The risk of
unfair prejudice, on the other hand, is high. Relevant evidence is inadmissible if its probative
value is substantially outweighed by the danger of unfair prejudice or needlessly presenting
cumulative evidence. Fed. R. Evid. 403. The arrest has the potential to prejudice the jury’s
perception of the facts at issue. The jury could conclude that because Walsh was arrested for his
conduct, his conduct was unreasonable. The plaintiff will have the opportunity to question Walsh
as well as representatives of his employer about Walsh’s conduct, and thus evidence of his arrest
and criminal prosecution would be cumulative. The limited probative value of Walsh’s arrest and
subsequent criminal case is substantially outweighed by the danger of unfair prejudice, and
evidence related to Walsh’s arrest and prosecution is thus inadmissible.
Plaintiff asserts that some of the evidence from the criminal case, such as testimony,
could be used as impeachment evidence or be admissible as prior inconsistent statements. The
Court will rule on any impeachment evidence or prior inconsistent statements, if the need for
such arises, after Walsh testifies at trial, outside of the presence of the jury, and before plaintiff
and/or the City of New Britain attempt to introduce such evidence.
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X.
The Internal Affairs Investigation of Walsh’s Conduct
Walsh moved to preclude any evidence of or reference to the New Britain Police
Department’s follow up investigations and the Internal Affairs investigation of his conduct
during Roguz’s arrest because it is not relevant and is unfairly prejudicial. [Rec. Doc. 118].
Walsh additionally argues that portions of the evidence contain inadmissible hearsay. Walsh
objects to testimony about the investigation from ten New Britain Police Department employees
and to over sixty of plaintiff and the City’s exhibits, including signed statements, depositions,
photographs, Walsh’s baton, and a memorandum from Captain Matt Tuttle summarizing the
investigation and providing his findings. Plaintiff objects to Walsh’s motion and argues that the
investigation is relevant to the reasonableness of Walsh’s use of force and that its probative value
outweighs the prejudicial effect. [Rec. Doc. 134]. Additionally, he argues that any prior
inconsistent statements can be used as impeachment evidence, or, if made at a hearing or in a
deposition, as substantive evidence, and therefore individual determinations regarding
admissibility of the documents must be made at the time of trial. The City of New Britain also
objects, arguing that the investigation is relevant to plaintiff’s indemnification claim against the
City of New Britain. [Rec. Doc. 123]. The City further argues that the documents are admissible
as business records.
A. Legal Conclusions of the Investigation
Walsh argues the existence of an investigation commenced by the New Britain Police
Department and its findings are not relevant because they substitute the investigation for the
constitutional inquiry of the jury and a violation of police procedure is not equivalent to a
violation of a constitutional standard. As discussed earlier, any witness called to testify at trial
must testify only in accordance with Hygh and may not testify in the form of legal conclusions.
19
However there are admissibility issues specific to conclusions given in investigative reports. In
Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 178 n.13 (1988), the Supreme Court explicitly left
open the question of whether legal conclusions made in public records are admissible, however
the weight of the opinions from the Circuits find that they are not. See Miranda-Ortiz v. Deming,
94 CIV 476 CSH, 1998 WL 765161 (S.D.N.Y. Oct. 29, 1998) (compiling cases and applying
principle to exclude legal conclusions in public record). Any legal conclusions made by the
investigation will not be allowed into evidence nor are they to be referred to. In the event that the
case is not bifurcated, a limiting instruction will be given to the jury instructing them that
violations of the policies and guidelines of City of New Britain and the findings of the
Department’s investigation are not to be considered as evidence that Walsh committed a
constitutional violation in regards to plaintiff’s excessive force claim but may be considered by
the jury only to ascertain whether Walsh was acting within the scope of his employment.
B. Reference to the Investigation and the Written Investigatory Report
The result of the Internal Affairs investigation involves the Department’s determinations,
as Walsh’s employer, of the propriety of his actions, which are relevant to the indemnity claim
that remains against the City of New Britain. Therefore, his employers’ statements regarding
Walsh’s job requirements, training, and violations are highly probative. On the other hand, the
findings of the investigation are highly prejudicial to Walsh to the extent that they might be used
as proof that the facts are as the investigation found them to be or that Walsh’s actions amounted
to the violation of a constitutional standard. In the event that the case is not bifurcated, a limiting
instruction will be given that the findings of the investigation may only be considered by the jury
to ascertain whether Walsh was acting within the scope of his employment and not whether the
force employed against plaintiff was reasonable under the circumstances.
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Additionally, in the event that the case is not bifurcated, in order to limit the possible
unfair prejudice, the report itself may not be “taken into the jury room where it might continue to
speak.” Gentile v. County of Suffolk, 129 F.R.D. 435, 461 (E.D.N.Y. 1990) (Weinstein, J.) aff'd,
926 F.2d 142 (2d Cir. 1991). Because of the danger of unfair prejudice and the extent to which
the investigation tracks the facts and issues in this case as to Walsh’s conduct during his
interaction with plaintiff, the sixty documents related to the investigation, including the report of
Captain Tuttle [Rec. Doc. 118, Ex. 18] create a situation where the “probative force of the
written word might be overvalued.” Id. Therefore, the documents will not be allowed into
evidence. The chief of police and/or other knowledgeable City of New Britain supervisory
employees may testify about the fact that investigation took place, the findings of the
investigation, and specific conduct that would violate the City of New Britain’s police policies
and procedures. The City of New Britain is fully capable of asking the Chief or other appropriate
police officials whether the conduct as alleged by plaintiff violated the City of New Britain’s
policies and procedures. The jury will be instructed on the Connecticut state law of
indemnification and based on the jury’s findings of the facts will determine whether or not
Walsh was working within the scope of his employment, and thus whether or not the City of
New Britain is obligated to indemnify Roguz for Walsh’s actions upon a finding of liability in
favor of Roguz and against Walsh.
C. Impeachment or Prior Inconsistent Statement Use
Plaintiff argues that some of the statements contained in the sixty-plus documents
associated with the investigation could be admissible as either impeachment evidence or
substantively as a prior inconsistent statement under Rule 801(d)(1)(A). A declarant-witness’s
prior inconsistent statement is not prohibited as hearsay under that rule if was “given under
21
penalty of perjury at a trial, hearing, or other proceeding or in a deposition.” Fed. R. Evid.
801(d)(1)(A). The Court will rule on any impeachment evidence or prior inconsistent statements
if the need for such arises, after Walsh testifies at trial, outside of the presence of the jury, and
before plaintiff and/or the City of New Britain attempt to introduce such evidence.
XI.
Walsh’s Termination
Finally, Walsh moved to preclude evidence of his “separation from employment,
including arbitration proceedings, termination, and resignation” because it is irrelevant and
unfairly prejudicial. [Rec. Doc. 105]. The City of New Britain objected, arguing that this
evidence is relevant to whether Walsh acted within the scope of his employment. [Rec. Doc.
124]. Plaintiff objected, arguing that the evidence is relevant and that the testimony can be used
as impeachment evidence. [Rec. Doc. 133].
The fact that Walsh left employment at the City of New Britain Police Department as a
result of the incident underlying this case is relevant to whether he was acting within the scope of
his employment, but not as to whether he used excessive force against plaintiff.
On the other hand, the written arbitration decision will not be admitted into evidence as it
is not helpful to the jury and it makes inadmissible legal conclusions. The danger of unfair
prejudice is high and outweighs any probative value, and it will be excluded under Rule 403.
XII.
Conclusion
Plaintiff’s motion seeking to preclude evidence of plaintiff’s interactions with emergency
medical personnel after the incident with Walsh concluded will be granted. [Rec. Docs. 106, 108,
109]. Plaintiff’s motion seeking to preclude evidence of plaintiff’s criminal history will be
granted. [Rec. Docs. 106, 107, 110, 111, 112, 113, 114, 115]. The Court defers ruling on
plaintiff’s motion seeking to preclude evidence of certain testimony from defendant Walsh’s
22
proposed expert witness, Daniel Wick, pending the Court conducting a Daubert hearing [Rec.
Doc. 107]. Plaintiff’s motion seeking to preclude evidence of plaintiff’s arrest related to the 2007
incident will be denied. [Rec. Doc. 116, 117].
Walsh’s motion seeking to preclude evidence of Walsh’s arrest and criminal prosecution will
be granted. [Rec. Doc. 100]. Walsh’s motion seeking to preclude Dr. H. Wayne Carver’s expert
report and testimony regarding the causation of plaintiff’s abdominal injury will be granted in
part and denied in part. [Rec. Doc. 101]. Dr. Carver will be permitted to testify regarding the
causation of plaintiff’s abdominal injury, but his report will not be admitted into evidence.
Walsh’s motion seeking to preclude opinion evidence from New Britain Police Department
employees regarding whether the force used by Walsh was unreasonable, criminal, or constituted
a terminable offense will be granted in part and denied in part. [Rec. Doc. 102]. Any testimony
from New Britain Police Department employees must comport with Hygh and may not be in the
form of explicit or implicit legal conclusions. Additionally, upon proper limiting instruction, any
testimony that Walsh violated the Department’s policies will be admissible as to whether Walsh
was acting within the scope of his employment, but will not be admissible as to plaintiff’s
excessive force claim. Such witnesses may, however, if otherwise qualified, testify to general
police procedures. Walsh’s motion seeking to preclude evidence of the dismissal of the 2007
criminal charges against plaintiff will be denied. [Rec. Doc. 103]. Walsh’s motion seeking to
preclude evidence of the policies or guidelines of the City of New Britain Police Department will
be granted in part and denied in part. [Rec. Doc. 104]. The policies will be admissible as to
whether Walsh was acting within the scope of his employment, but will not be admissible as to
plaintiff’s excessive force claim. Walsh’s motion seeking to preclude evidence of Walsh’s
termination from the City of New Britain Police Department will be granted in part and denied in
23
part. [Rec. Doc. 105]. Walsh’s departure from employment will be admissible as to whether
Walsh was acting within the scope of his employment, but will not be admissible as to plaintiff’s
excessive force claim. The written arbitration decision will not be admitted into evidence.
Walsh’s motion seeking to preclude evidence of the City of New Britain Police Department’s
investigation of Walsh’s conduct during the 2007 incident will be granted in part and denied in
part. [Rec. Doc. 118]. The findings of the investigation will be admissible as to whether Walsh
was acting within the scope of his employment, but will not be admissible as to plaintiff’s
excessive force claim.
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