Orr v. Waterbury Police Dept et al
Filing
146
ORDER denying without prejudice 112 Motion in Limine; granting in part and denying without prejudice in part 113 Motion in Limine; granting 114 Motion in Limine; granting in part and denying without prejudice in part 115 Motion in Limine. Signed by Judge Victor A. Bolden on 05/14/2021. (Millat, C.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ANTHONY ORR,
Plaintiff,
v.
No. 3:17-cv-00788 (VAB)
KEITH SHEA, et al.,
Defendants.
RULING AND ORDER ON MOTIONS IN LIMINE
On April 19, 2017, Anthony Orr (“Plaintiff”) sued the Waterbury Police Department,
Sergeant Daniel Ferrucci, Officer Jeffrey Schmaling, and Officer Shea (together, “Defendants”)
in Connecticut state court under 42 U.S.C. § 1983, arguing that the Defendants violated his
Fourth Amendment protection against unreasonable seizures by arresting him without probable
cause, assaulting him during the course of arrest, denying him medical care after the arrest, and
maliciously prosecuting him for narcotics offenses. Notice of Filing Pet. of Removal, ECF No. 1
at 6-8 (May 15, 2017) (“Compl.”).
On May 15, 2017, the Defendants removed the action to this Court. Notice of Filing Pet.
of Removal, ECF No. 1 (May 15, 2017) (“Notice of Removal”). In two summary judgment
orders, see Ruling and Order on Mot. for Summ. J. and Mot. to Appoint Counsel, ECF No. 31
(Feb. 8, 2018) (“First MSJ”); Ruling and Order on Mot. for Summ. J., ECF No. 81 (Nov. 8,
2019) (“Second MSJ”), all claims against all Defendants were dismissed except for the excessive
force claim against Officer Shea, which is proceeding to trial.
Before the jury trial, currently scheduled to begin on June 14, 2021, Mr. Orr filed four
motions in limine seeking to preclude the admission into evidence of the following: (1) evidence
or testimony relating to prior litigations in which Mr. Orr was a plaintiff; (2) evidence or
1
testimony relating to Mr. Orr’s alleged past or present drug use; (3) evidence or testimony
relating to Mr. Orr’s prior criminal convictions; and (4) evidence or testimony relating to items
seized after Mr. Orr’s arrest. See Pl.’s Mot. in Lim. to Preclude Evid. or Test. Regarding Prior
Litigs., ECF No. 112 (Oct. 30, 2020) (“Mot. Prior Litig.”); Pl.’s Mot. in Lim. to Preclude Evid.
or Test. Regarding Past or Present Drug Use, ECF No. 113 (Oct. 30, 2020) (“Mot. Drug Use”);
Pl.’s Mot. to Preclude Evid. or Test. Regarding Prior Convictions or Arrests, ECF No. 114 (Oct.
30, 2020) (“Mot. Prior Convictions”); Pl.’s Mot. to Preclude Evid. or Test. Regarding Items
Seized After Mr. Orr’s Arrest, ECF No. 115 (Oct. 30, 2020) (“Mot. Items Seized”).
For the reasons explained below, Mr. Orr’s motion to preclude evidence or testimony
regarding prior litigations, ECF No. 112, will be DENIED without prejudice to renewal at trial;
Mr. Orr’s motion to preclude evidence or testimony relating to past or present drug use,
ECF No. 113, will be GRANTED with respect with respect to evidence or testimony relating to
Mr. Orr’s alleged past drug use before the events leading up to his arrest, and will be DENIED
without prejudice to renewal at trial with respect to evidence relating to Mr. Orr’s alleged
intoxication at the time of his arrest and the hand-to-hand drug transaction that allegedly took
place before Mr. Orr’s arrest;
Mr. Orr’s motion to preclude evidence or testimony relating to prior convictions, ECF
No. 114, will be GRANTED; and
Mr. Orr’s motion to preclude evidence or testimony relating to items seized after Mr.
Orr’s arrest, ECF No. 115, will be GRANTED with respect to the other Warrant-Related Items
and the Paraphernalia, but will be DENIED without prejudice to renewal at trial as to the drug
paraphernalia on the coffee table.
The Court's rulings, however, are “subject to change when the case unfolds, particularly
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if the actual testimony differs from what was [expected].” Luce v. United States, 469 U.S. 38, 41
(1984).
I.
FACTUAL AND PROCEDURAL BACKGROUND
The Court assumes factual familiarity with the underlying proceedings. See, e.g., First
MSJ; Second MSJ.
On February 8, 2018, the Court denied Mr. Orr’s motion for summary judgment on his
claims, dismissed all claims against the Waterbury Police Department, as well as all of Mr. Orr’s
claims for declaratory relief and for damages against Defendants in their official capacities, and
granted Mr. Orr’s motion for appointment of counsel. See First MSJ.
On November 8, 2019, the Court granted in part and denied in part Officer Shea’s,
Officer Schmaling’s and Sergeant Ferrucci’s motion for summary judgment, dismissing all
remaining claims except for the excessive force claim against Officer Shea. See Second MSJ.
On October 30, 2020, Mr. Orr filed the four motions in limine. See Mot. Prior Litig.; Mot.
Past or Present Evid.; Mot. Prior Convictions; Mot. Items Seized; see also Pl.’s Mem. of L. in
Supp. of Mot. in Lim. to Preclude Evid. or Test. Regarding Prior Litigs., ECF No. 112 -1 (Oct.
30, 2020) (“Mem. Prior Litig.”); Pl.’s Mem. of L. in Supp. of Mot. in Lim. to Preclude Evid. or
Test. Regarding Past or Present Drug Use, ECF No. 113-1 (Oct. 30, 2020) (“Mem. Drug Use”);
Pl.’s Mem. of L. in Supp. of Mot. in Lim. to Preclude Evid. or Test. Regarding Prior Convictions
or Arrests, ECF No. 114-1 (Oct. 30, 2020) (“Mem. Prior Convictions”); Pl.’s Mem. of L. in
Supp. of Mot. in Lim. to Preclude Evid. or Test. Regarding Items Seized After Mr. Orr’s Arrest,
ECF No. 115-1 (Oct. 30, 2020) (“Mem. Items Seized”).
On January 11, 2020, Officer Shea filed objections to each of the motions in limine. See
Obj. to Pl.’s Mot. in Lim. to Preclude Evid. or Test. Regarding Prior Litigs. (Doc. #112), ECF
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No. 125 (Jan. 11, 2021); Mem. of L. in Supp. of Def.’s Obj. to Pl.’s Mot. in Lim. to Preclude
Evid. or Test. Regarding Prior Litigs. (Doc #112), ECF No. 125-1 (Jan. 11, 2021) (“Obj. Prior
Litig.”); Obj. to Pl.’s Mot. in Lim. to Preclude Evid. or Test. Regarding Past or Present Drug Use
(Doc #113), ECF No. 126 (Jan. 11, 2021); Mem. of L. in Supp. of Def.’s Obj. to Pl.’s Mot. in
Lim. to Preclude Evid. or Test. Regarding Past or Present Drug Use (Doc #113), ECF No. 126-1
(Jan. 11, 2021) (“Obj. Drug Use”); Obj. to Pl.’s Mot. in Lim. to Preclude Evid. or Test.
Regarding Prior Convictions or Arrests (Doc #114), ECF No. 127 (Jan. 11, 2021); Mem. of L. in
Supp. of Def.’s Obj. to Pl.’s Mot. in Lim. to Preclude Evid. or Test. Regarding Prior Convictions
or Arrests (Doc #114), ECF No. 127-1 (Jan. 11, 2021) (“Obj. Prior Convictions”); Obj. to Pl.’s
Mot. in Lim. to Preclude Evid. or Test. Regarding Items Seized After Mr. Orr’s Arrest (Doc
#115), ECF No. 128 (Jan. 11, 2021); Mem. of L. in Supp. of Def.’s Obj. to Pl.’s Mot. in Lim. to
Preclude Evid. or Test. Regarding Items Ceased [sic] After Mr. Orr’s Arrest (Doc #115), ECF
No. 128-1 (Jan. 11, 2021) (“Obj. Items Seized”).
On February 8, 2021, Mr. Orr filed replies to Of ficer Shea’s objections to his motions in
limine. See Pl.’s Reply Mem. of L. in Further Supp. of Mot. in Lim. to Preclude Evid. or Test.
Regarding Prior Litigs. (Docket #112), ECF No. 135 (Feb. 8, 2021) (“Reply Prior Litig.”); Pl.’s
Reply Mem. of L. in Further Supp. of Mot. in Lim. to Preclude Evid. or Test. Regarding Past or
Present Drug Use (Docket #113), ECF No. 136 (Feb. 8, 2021) (“Reply Drug Use”); Pl.’s Reply
Mem. of L. in Further Supp. of Mot. in Lim. to Preclude Evid. or Test. Regarding Prior
Convictions or Arrests (Docket #114), ECF No. 137 (Feb. 8, 2021) (“Reply Prior Convictions”);
Pl.’s Reply Mem. of L. in Further Supp. of Mot. in Lim. to Preclude Evid. or Test. Regarding
Items Seized After Mr. Orr’s Arrest (Docket #115), ECF No. 138 (Feb. 8, 202 1) (“Reply Items
Seized”).
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The Court has set June 14, 2021 for jury selection. See Scheduling Order, ECF No. 145.
II.
STANDARD OF REVIEW
Motions in limine provide district courts the opportunity to rule in advance of trial on the
admissibility and relevance of certain forecasted evidence. See Luce, 469 U.S. at 40 n.2;
Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996). “A district court’s inherent authority to
manage the course of its trials encompasses the right to rule on motions in limine.” Highland
Cap. Mgmt., L.P. v. Schneider, 551 F. Supp. 2d 173, 176 (S.D.N.Y. 2008).
A court should only exclude evidence on motions in limine if the evidence is “clearly
inadmissible on all potential grounds.” Levinson v. Westport Nat’l Bank, No. 09-cv-1955 (VLB),
2013 WL 3280013, at *3 (D. Conn. June 27, 2013) (internal quotation marks omitted). The court
also retains discretion to reserve judgment on some or all motions in limine until trial so that the
motions are placed in the appropriate factual context. See, e.g., In re Methyl Tertiary Butyl Ether
(MTBE) Prods. Liab. Litig., 643 F. Supp. 2d 471, 476 (S.D.N.Y. 2009); Nat’l Union Fire Ins.
Co. of Pittsburgh, Pa. v. L.E. Myers Co., 937 F. Supp. 276, 287 (S.D.N.Y. 1996).
III.
DISCUSSION
Each of Mr. Orr’s motions in limine seek to exclude evidence that Mr. Orr argues is
irrelevant, prejudicial, or otherwise inadmissible under the Federal Rules of Evidence. See Fed.
R. Evid. 403. Under Rule 403, “[t]he court may exclude relevant evidence if its probative value
is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading
the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Id.
The Court will address each motion in turn.
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A. Motion Regarding Prior Litigations [ECF No. 112]
Mr. Orr seeks to preclude from admission at trial evidence and testimony regarding Mr.
Orr’s involvement as a plaintiff in prior litigations, arguing that this information is “not relevant,
and even if it were relevant, the probative value of such evidence is substantially outweighed by
its prejudicial effect.” Mem. Prior Litig. at 2.
Mr. Orr argues that “[c]ourts routinely exclude evidence of prior litigations because of
the substantial danger of jury bias,” id. (citing Raysor v. Port Auth. of N.Y. & N.J., 768 F.2d 34,
40 (2d Cir. 1985)), and that “[a]lthough Mr. Orr has been the plaintiff in a number of lawsuits,
none of them are related to any of the claims or defenses in the present action,” id. at 3. He
argues that although Officer Shea may argue that Mr. Orr “has a bias against police officers or
the criminal justice system because certain of his lawsuits are filed against” such organizations or
individuals, the Second Circuit has “explicitly rejected” the argument that evidence of prior
lawsuits can show anti-police bias. Id. (citing Outley v. City of N.Y., 837 F.2d 587, 593-94 (2d
Cir. 1988)).
Mr. Orr argues that Outley sets forth one exception where prior litigations may be
admissible, when “the previous claims made by the party are shown to have been fraudulent,” an
exception he argues does not apply to his case. Id. He argues that if this evidence were admitted,
it would “provide no probative value and would instead bring a high risk of prejudice, especially
to jurors who lack regular contact with the justice system,” and would impermissibly “paint Mr.
Orr as a chronic litigant.” Id. at 4.
Officer Shea does not dispute “that courts routinely exclude evidence of prior litigations
because of the substantial danger of jury bias,” Obj. Prior Litig. at 4 (citing Raysor, 768 F.2d at
40), and “concedes such evidence would be inadmissible if the sole purpose was to present
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evidence of the plaintiff’s litigiousness and/or police bias,” id. at 4-5 (emphasis omitted), but
argues that this evidence and testimony nonetheless is “admissible with regard to any prior or
subsequent claims of injuries which are substantially similar to the claims he asserts in the
present case,” id. at 5.
Officer Shea argues that “[i]t is well-established that evidence of the party’s prior
litigation . . . may be admitted so long as it is relevant and probative of an issue in the present
case and particularly if the evidence is inconsistent with the party’s current position.” Id. In
Officer Shea’s view, “all of the prior and/or subsequent litigation[-]based evidence to be elicited
from [Mr.] Orr would be relevant and probative of both the extent and potential causes of [his]
injury claims,” and Mr. Orr’s “litigation history provides information that makes his claim
relevant to the present action.” Id. As a result, he argues that “[t]o the extent that Mr. Orr has
asserted similar claims” before, “such evidence is highly relevant and probative of his claims in
the present case,” particularly with respect to “the issues of causation of damages and his
credibility.” Id. at 5-6.
Mr. Orr replies that the relevant evidence is “inadmissible for impeachment or
credibility,” and that any “vague and unsupported” benefits of the evidence are outweighed by
the “high danger of unfair prejudice, confusion, and delay” he argues would result if this
evidence were introduced at trial. Reply Prior Litig. at 2-3 (emphasis omitted). He argues that the
evidence also is “inadmissible to prove facts,” as “[t]he subject matter of Mr. Orr’s other
litigations is diverse,” and Officer Shea “has only speculated that there is overlap between those
issues and the issue in the case at bar,” and has “fail[ed] to point to any case where Mr. Orr made
a claim contrary to his statements in the case.” Id. at 3.
The Court agrees, in part.
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Courts are permitted to “exclude [any] relevant evidence if its probative value is
substantially outweighed by a danger of . . . unfair prejudice.” Fed. R. Evid. 403. “The prejudice
that Rule 403 is concerned with involves ‘some adverse effect . . . beyond tending to prove the
fact or issue that justified its admission into evidence.” United States v. Gelzer, 50 F.3d 1133,
1139 (2d Cir. 1995) (quoting United States v. Figueroa, 618 F.2d 934, 943 (2d Cir. 1980)). Any
evidence therefore “must also bear a reasonable resemblance to the allegations at issue.” Metcalf
v. Yale Univ., No. 15-CV-01696 (VAB), 2018 WL 8060514, at *3 (D. Conn. April 25, 2018).
Federal Rule of Evidence 404(b)(1) prohibits the admission of evidence of “a crime,
wrong, or other act” 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). Under Rule
404(b)(2), however, 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(b)(2).
“Litigiousness is the sort of character trait with which Rule 404(b) is concerned.” Outley,
837 F.2d at 592. “[A] plaintiff’s litigiousness may have some slight probative value, but that
value is outweighed by the substantial danger of jury bias against the chronic litigant.” Id.
In Outley, the Second Circuit excluded evidence of prior lawsuits but noted a distinction
“where a party has filed a series of fraudulent lawsuits and there is substantial evidence that the
prior lawsuits amounted to a fraudulent pattern.” 837 F.2d at 594. Indeed, “[i]n similar
circumstances,” courts in this Circuit “have generally precluded evidence of prior lawsuits to
show the plaintiff’s litigiousness unless there was evidence that the prior lawsuits were
fraudulently filed.” Scoma v. City of N.Y., No. 16-CV-6693 (KAM) (SJB), 2021 WL 1784385, at
*7 (E.D.N.Y. May 4, 2021) (slip op.) (citing Outley, 837 F. 2d at 594); see also Walker v. Schult,
8
365 F. Supp. 3d 266, 281 (N.D.N.Y. 2019) (excluding similar evidence where defendants failed
to show that the “other grievances were fraudulent”).
Defendant does not now allege that Mr. Orr’s prior lawsuits were fraudulent, but instead
argues that evidence of these prior litigations “may be admitted so long as it is relevant and
probative of an issue in the present case and particularly if the evidence is inconsistent with the
party’s current position.” Obj. Prior Litig. at 5 (citing Mendenhall v. Cedarapids, Inc., 5 F.3d
1557, 1573 (Fed. Cir. 1993); Vincent v. Young, 324 F.2d 266, 269 (10th Cir. 1963)). Officer Shea
also argues that under Barnes v. Long Island Railroad, 205 F.3d 1321, 2000 WL 19108, at *2
(2d Cir. 2000) (table op.), “insofar as [Mr.] Orr claims in this action injuries subsequently similar
to those in prior and subsequent litigation,” this “creates a potential for inconsistencies in the
present lawsuit,” raising “issues of causation of damages” and “credibility.” Id. at 5-6.
None of these cases, however, point toward blanket admission of Mr. Orr’s prior
litigations in the present case. In Mendenhall, where the plaintiff sought admission of several
prior judgments and judicial opinions, the Federal Circuit observed that “[t]here is no exemption
from Rule 403 for evidence of prior litigation,” and advised that courts “must look at particular
issues and at the particular evidence proffered and the reasons for exclusion.” 5 F.3d at 1573.
Here, however, Officer Shea has not identified with any specificity which of Mr. Orr’s
prior litigations he seeks to admit evidence or testimony from, so the Court cannot now engage
in the close look at the “particular evidence” discussed in Mendenhall. Id. Similarly, in Vincent
v. Young, the Tenth Circuit generally observed that “[p]rior statements of a party, including
testimony in a former case, are generally admissible as primary evidence against the party
making them.” 324 F.2d at 269.Again, however, Officer Shea has not pointed to any specific
testimony or prior statements he seeks to introduce; moreover, the Tenth Circuit’s holding in
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Vincent must be considered alongside the Second Circuit’s binding ruling in Outley cautioning
this Court against routine admission of prior litigation. See 837 F.2d at 594.
In Barnes, the Second Circuit held that “evidence of a party’s prior litigation, inclu ding
testimony and statements made in the course of a former case, may be admitted so long as it is
relevant and probative of an issue in the present case—and particularly if the evidence is
inconsistent with the party’s current position.” 2000 WL 19108 at *2. This, however, merely
restates the Court’s necessary balancing under the Rules of Evidence. See Fed. R. Evid. 403.
Additionally, in Barnes, the defendant specifically sought to introduce evidence and testimony
regarding prior similar injuries and set forth specific evidence of prior inconsistent claims
pertaining to his earning capacity and extent of his prior injuries. Id. Though Officer Shea argues
that “all of the prior and/or subsequent litigation[-]based evidence to be elicited from [Mr.] Orr
would be relevant and probative of both the extent and potential causes of [Mr.] Orr’s injury
claims,” Obj. Prior Litig. at 5, he has not earmarked, or identified with any degree of specificity,
any evidence or testimony that would be “inconsistent” with his current position or relate in any
particular way to issues of causation in the present case. Barnes, 2000 WL 19108 at *2;
Because the Court has no indication of the specific evidence Plaintiff seeks to preclude
from admission, however, the Court cannot rule on the admissibility of any such evidence and
also declines to adopt a blanket exclusion of all evidence relating to all of Mr. Orr’s prior
litigations.
Accordingly, Mr. Orr’s motion in limine, ECF No. 112, is DENIED without prejudice to
renewal at trial. See Nat’l Union Fire Ins. Co. of Pittsburgh, 937 F. Supp. at 287 (“[T]he Court
will reserve judgment on the motion until trial when admission of particular pieces of evidence is
in an appropriate factual context.”). The Court cautions that, given that admitting evidence of
10
prior litigations may “potentially unfairly prejudice the jury against Plaintiff by painting him as a
litigious character who lacks validity,” Eng v. Scully, 146 F.R.D. 74, 79 (S.D.N.Y. 1993), this
evidence will more likely than not be excluded from trial.
B. Motion Regarding Past or Present Drug Use [ECF No. 113]
Mr. Orr seeks to preclude various pieces of evidence and testimony relating to his alleged
past or present drug use, including “evidence that he allegedly has used illegal drugs in the past”
and “evidence that Mr. Orr was intoxicated at the time of his arrest.” See Mem. Drug Use at 2-3.
As to any evidence of Mr. Orr’s alleged past drug use, he argues that this evidence is not relevant
because it “does not make any fact regarding the Defendant’s use of force any more or less
probable,” and even if relevant, this evidence is “unfairly prejudicial, as it may cause the jury to
view Mr. Orr as untrustworthy or immoral.” Id. As to any evidence that Mr. Orr was intoxicated
at the time of his arrest, he argues that officers who spoke to Mr. Orr after his arrest “testified
that he was coherent and understandable and did not appear to be intoxicated,” and that, because
“crack cocaine is a fast-acting drug . . .[,] Mr. Orr was unlikely to still be under its effects at the
time of his arrest over an hour later” than he used the drug. Id. at 3.
Officer Shea concedes that he “does not intend to introduce” evidence of Mr. Orr’s
alleged “past use of illegal drugs, only his admitted use on the day of the subject incident.” Obj.
Drug Use at 4. Officer Shea argues that this evidence, including evidence of an alleged “hand-tohand perceived drug transaction” before the arrest has “significant probative value for
impeachment and credibility purposes” and is “relevant and highly probative of the facts with
which Officer Shea was confronted.” Id. at 4-5. As to evidence that Mr. Orr was intoxicated at
the time of his arrest, Officer Shea argues that “[t]he jury has the right to consider whether [Mr.]
Orr’s mental state and recollection of the events may have been impaired by his admitted use of
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crack cocaine and marijuana within a short time before the incident.” Id. at 5.
Mr. Orr replies that any evidence of intoxication at the time of his arrest is “irrelevant to
Defendant’s use of force” and is “highly inflammatory.” Reply Drug Use at 2. He similarly
argues that any evidence relating to the alleged hand-to-hand drug transaction is irrelevant, as
“the suggestion that Defendant had reason to use force on Mr. Orr simply because he may have
been involved in a drug transaction relies on an ipse dixit conclusion that anyone involved in
drug use constitutes a risk to a police officer and therefore any use of force would be justified.”
Id. at 3.
The Court agrees, in part.
Under the surviving claim, the excessive force claim against Officer Shea, the jury must
determine whether the force was reasonable by conducting “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.” Graham v. Connor, 490 U.S. 386, 396 (1989)
(internal quotation marks omitted). In making that determination, “[t]he reasonableness of a
particular use of force must be judged from the perspective of a reasonable officer on the scene,
rather than with the 20/20 version of hindsight.” Id. (internal quotation marks omitted). This is an
objective standard that considers “the severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others, and whether he is actively resisting arrest
or attempting to evade arrest by flight.” Id.
As to any evidence relating to Mr. Orr’s alleged past drug use before the events leading
to his arrest, Officer Shea has noted that he does not intend to introduce such evidence, and given
the Second Circuit’s observation that “ordinarily there are few subjects more potentially
inflammatory than narcotics and thus such evidence should usually be excluded in a non -
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narcotics trial,” United States v. Ong, 541 F.2d 331, 340 (2d Cir. 1976), any such evidence likely
would not be admissible at trial.
As to evidence relating to Mr. Orr’s alleged intoxication at the time of his arrest, or to the
hand-to-hand drug transaction that allegedly occurred prior to Mr. Orr’s arrest, the Court must
assess whether such evidence is probative and is not outweighed by the prejudicial effects it may
have on Mr. Orr. See Fed. R. Evid. 403.
With respect to evidence of Mr. Orr’s alleged intoxication at the time of his arrest, Mr.
Orr’s primary objection to the admission of this evidence is that “there is no evidence that Mr.
Orr was intoxicated,” Reply Drug Use at 2, and that “officers who spoke to Mr. Orr after his
arrest testified that he was coherent and understandable and did not appear to be intoxicated,” as
well as that “crack cocaine is a fast-acting drug and Mr. Orr was unlikely to still be under its
effects at the time of his arrest,” given expert testimony that “the effects of crack cocaine occur
ten to fifteen seconds after use, and last for approximately fifteen minutes.” Mem. Drug Use at 34. Given this objection, the dispute about whether Mr. Orr was actually intoxicated is best
resolved by the factfinder, not by the Court at this stage of the proceedings.
Furthermore, because the trial has not yet occurred, evidence of Mr. Orr’s alleged
intoxication at the time of his arrest and the alleged hand-to-hand transaction that took place
prior to Mr. Orr’s arrest has not been presented in its proper context. Notably, the Court has not
observed Mr. Orr’s testimony regarding his recollection of the arrest nor testimony relating to
Officer Shea’s awareness of any such hand-to-hand transaction during or prior to his use of
force.
Accordingly, and in light of the Court’s discretion to reserve judgment on a motion in
limine until the evidence is placed in its full factual context at trial, see Nat’l Union Fire Ins. Co.,
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937 F. Supp. at 287, the motion in limine, ECF No. 113, is GRANTED in part and DENIED in
part. The motion is GRANTED with respect to evidence or testimony relating to Mr. Orr’s
alleged past drug use before the events leading up to his arrest, and is DENIED without
prejudice to renewal at trial with respect to evidence relating to Mr. Orr’s alleged intoxication at
the time of his arrest and the hand-to-hand drug transaction that allegedly took place prior to Mr.
Orr’s arrest.
C. Motion Regarding Prior Convictions or Arrests [ECF No. 114]
Evidence of prior convictions may be admitted in some circumstances for limited
purposes such as proving motive or impeaching a witness's credibility. See Fed. R. Evid. 404(b)
(noting that evidence of past crimes “is not admissible to prove a person's character” but that
such 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. 609(a) (outlining the “rules [that] apply to attacking a witness's character for truthfulness
by evidence of a criminal conviction” and requiring admission of prior convictions “if the court
can readily determine that establishing the elements of the crime required proving—or the
witness's admitting—a dishonest act or false statement”); see also Lewis v. Velez, 149 F.R.D.
474, 481-83 (S.D.N.Y. 1993) (“Neither drug crimes nor assault involve dishonesty or false
statement, so the plaintiff's convictions for these crimes are not automatically admissible under
Rule 609(a)(2). On the other hand, none of the convictions at issue is more than ten years old;
thus, evidence of the crimes is not presumptively barred under Rule 609(b) . . . . Convictions for
crimes or other bad acts that bear a close resemblance to actions alleged in the current case are
likely to run afoul of Rule 404(b), because they cause unfair prejudice to the party against whom
they are offered by suggesting that the party has a propensity to commit such acts.” (internal
14
citations omitted)).
At all times, such evidence is subject to the balancing test of Rule 403, which provides
that “[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 also United States v. Estrada, 430
F.3d 606, 615-16 (2d Cir. 2005) (“[E]vidence of convictions for crimes involving ‘dishonesty or
false statement,’ whether felonies or misdemeanors, must be admitted under Rule 609(a)(2) as
being per se probative of credibility, while district courts, under Rule 609(a)(1), may admit
evidence of a witness's felony convictions that do not constitute crimen falsi, subject to balancing
pursuant to Rule 403.” (emphasis in original)).
“In balancing the probative value against the prejudicial effect under [Rule 609], courts
examine the following factors: (1) the impeachment value of the prior crime, (2) the remoteness
of the prior conviction, (3) the similarity between the past crime and the conduct at issue, and (4)
the importance of the credibility of the witness.” Stephen v. Hanley, No. 03-CV-6226 (KAM)
(LB), 2009 WL 1471180, at *4 (E.D.N.Y. May 21, 2009) (citing Daniels v. Loizzo, 986 F. Supp.
245, 250 (S.D.N.Y. 1997)).
As to the impeachment value of Mr. Orr’s prior crimes, as this Court has previously held,
the particular crimes at issue in Mr. Orr’s motion in limine—assault in the first degree, carrying a
pistol without a permit, robbery in the first degree, conviction for disorderly conduct, and
violation of probation, see Mem. Prior Convictions at 1—“do not have significant impeachment
value, as they do not relate to dishonesty or false statements on the part of ” Mr. Orr. Anderson v.
Scanlon, No. 3:14-cv-00829 (VAB), 2017 WL 3974994, at *2-3 (D. Conn. Sept. 8, 2017)
(excluding evidence of prior convictions for “assault, possession of narcotics, carrying a pistol
without a permit, and violation of probation”); see Fed. R. Evid. 609(a)(2).
15
As to the remoteness of the prior conviction, the majority of Mr. Orr’s convictions took
place over ten years ago, see Mem. Prior Convictions at 1, and, given their remoteness in time,
and this Court’s prior holding that the “probative value of conviction decreases as its age
increases,” Franko v. Farrell, No. 3:17-CV-1558 (RMS), 2019 WL 1772400, at *3 (D. Conn.
Apr. 23, 2019) (internal quotation marks omitted), this evidence likely provides no meaningful
probative value in any event. See also Stephen, 2009 WL 1471180, at *4 (finding that a
probation violation for which the plaintiff was previously sentenced “d[id] not provide insight
into whether he posed a threat to the safety of the defendants or attempted to evade arrest, and,
thus, whether the defendants’ use of force was reasonable”). Officer Shea also sets forth no
potential probative value any of these convictions may provide, or any proffered purpose for
admission of these prior acts. See Obj. Prior Convictions.
As to the similarity between the past crime and the conduct at issue, Mr. Orr’s prior
convictions are unrelated to the conduct at issue—whether Officer Shea’s conduct constituted
excessive force. See Compl. Even assuming such a comparison remains relevant in these
circumstances, where Mr. Orr is not a defendant but the plaintiff in this action, Mr. Orr’s prior
offenses are not similar in kind to the narcotics-related conduct that arguably may be attributed
to him here.
Finally, “given the parties’ widely divergent versions of what took place during the
contested arrest[],” Anderson, 2017 WL 3974994, at *3, Mr. Orr’s credibility remains an
important issue in this case, and this factor also weighs in favor of exclusion.
Accordingly, at this time, Mr. Orr’s motion in limine to preclude evidence of prior
convictions, ECF No. 114, will be GRANTED. If, during the course of trial, it becomes clear
that such evidence may be properly admitted, the Court will consider revisiting this ruling.
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D. Motion Regarding Items Seized After Arrest [ECF No. 115]
Mr. Orr seeks to preclude the introduction of evidence relating to items seized from an
apartment on Angel Drive that was the site of Mr. Orr’s arrest and the incident at issue here. See
Mem. Items Seized. These items include “money, narcotics in plastic packaging, drugs inside a
glass jar, drug paraphernalia, empty magazines, bullets, and other items” (the “Warrant-Related
Items”). Id. at 2. Mr. Orr also seeks to preclude the introduction of drug paraphernalia found on
his person after he was arrested (the “Paraphernalia”). Id.
Mr. Orr argues that the Warrant-Related Items are not relevant to the question of
excessive force, and the Paraphernalia “lacks a nexus with the issue in this case,” because the
Paraphernalia was found on Mr. Orr’s person after force was exerted on him. Id. at 3. Mr. Orr
also argues that the probative value of the evidence is substantially outweighed by the danger of
unfair prejudice, as “[t]he jury may unfairly infer that Mr. Orr deserved punishment or was
behaving erratically simply because he was in the vicinity of drugs and weapons accessories,” id.
at 5, and this may cause the jury to “confuse Mr. Orr’s case about excessive force with crimes
that involve narcotics and guns,” id. at 6. Finally, Mr. Orr argues that the testimony of Mr. Orr
and Officer Shea can sufficiently “provide the jury with full narratives about the narrow issue
remaining in this case” such that this evidence is not necessary. Id. at 7.
Officer Shea “concedes that the [W]arrant-[R]elated [I]tems are not probative of whether
the defendant used excessive force when he first tackled Mr. Orr,” but argues that “the presence
of drugs in close proximity to Mr. Orr and the defendant Shea’s prior knowledge of Mr. Orr’s
perceived hand-to-hand drug transaction just prior to the execution of the search warrant are
highly relevant to the issue of the defendant’s objective reasonableness and use of force.” Obj.
Items Seized at 4. In his view, “[e]vidence of drugs on the coffee table is relevant to the issue of
17
[the] defendant’s objective reasonableness,” as Officer Shea’s assessment of the situation
“include[d] the facts that Mr. Orr was seated near drugs.” Id. at 4-5; see also id. at 6-7 (arguing
that “[w]hat [Officer Shea] knew or reasonably believed at the time of the incident goes to . . .
his objective reasonableness and must of necessity include . . . the admitted presence of drugs in
the immediate proximity to where the plaintiff was seated,” and that “[t]o exclude that evidence
would be highly prejudicial to the defendant”).
Mr. Orr responds that none of the Warrant-Related Items “have a nexus with any fact of
consequence in this case,” and reiterates that “the incremental probative value of this evidence is
low because any context it could provide can be shown in less-prejudicial ways.” Reply Items
Seized at 3, 5.
The Court agrees, in part.
As an initial matter, as Officer Shea has conceded that none of the Warrant-Related
Items, except for the “drugs on the coffee table” are not probative of whether he used excessive
force, Mr. Orr’s motion will be granted as to the other Warrant-Related Items.
As to the drug paraphernalia on the coffee table, which Officer Shea allegedly “observed
. . . immediately adjacent to where the plaintiff was seated,” Obj. Items Seized at 2, because the
trial has not yet occurred, this evidence has not been presented in its proper context, and the
Court cannot determine whether its probative value would be outweighed by its prejudicial
effect.
As to the Paraphernalia, found on Mr. Orr’s person after arrest, this evidence is not
probative of any issue before the jury. See Graham, 490 U.S. 386, 396-97 (describing the
elements of an excessive force claim).
Accordingly, and in light of the Court’s discretion to reserve judgment on a motion in
18
limine until the evidence is placed in its full factual context at trial, see Nat’l Union Fire Ins. Co.,
937 F. Supp. at 287, the motion in limine, ECF No. 115, is GRANTED in part and DENIED in
part. The motion is GRANTED with respect to the other Warrant-Related Items and the
Paraphernalia, which will be excluded, but is DENIED without prejudice to renewal at trial as to
the drug paraphernalia on the coffee table. If, during the course of trial, it becomes clear that
such evidence may be properly admitted, the Court will consider revisiting this ruling.
IV.
CONCLUSION
For the reasons explained above, Mr. Orr’s motion to preclude evidence or testimony
regarding prior litigations, ECF No. 112, is DENIED without prejudice to renewal at trial;
Mr. Orr’s motion to preclude evidence or testimony relating to past or present drug use,
ECF No. 113, is GRANTED with respect to evidence or testimony relating to Mr. Orr’s alleged
past drug use before the events leading up to his arrest, and is DENIED without prejudice to
renewal at trial with respect to evidence relating to Mr. Orr’s alleged intoxication at the time of
his arrest and the hand-to-hand drug transaction that allegedly took place prior to Mr. Orr’s
arrest;
Mr. Orr’s motion to preclude evidence or testimony relating to prior convictions, ECF
No. 114, is GRANTED; and
Mr. Orr’s motion to preclude evidence or testimony relating to items seized after Mr.
Orr’s arrest, ECF No. 115, is GRANTED with respect to the other Warrant-Related Items and
the Paraphernalia, but is DENIED without prejudice to renewal at trial as to the drug
paraphernalia on the coffee table.
The Court's rulings, however, are “subject to change when the case unfolds, particularly
if the actual testimony differs from what was [expected].” Luce, 469 U.S. at 41.
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SO ORDERED at Bridgeport, Connecticut, this 14th day of May, 2021.
/s/ Victor A. Bolden
Victor A. Bolden
United States District Judge
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