Denson v. Collier County et al
Filing
170
OPINION & ORDER granting in part and denying in part Defendant's 157 Motion in Limine. Signed by Judge John E. Steele on 2/4/2024. (FMB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ANTHONY DENSON, JR.,
Plaintiff,
v.
Case No:
2:21-cv-497-JES-NPM
MATTHEW KINNEY,
Defendant.
OPINION AND ORDER
This matter comes before the Court on defendant Matthew
Kinney’s Motion In Limine and Memorandum of Law filed on November
13, 2023. (Doc. #157.) Plaintiff Anthony Denson, Jr. filed a
Response in Opposition on November 28, 2023. (Doc. #162.) For the
reasons set forth below, the motion is granted in part and denied
in part.
I.
A motion in limine is a "motion, whether made before or during
trial, to exclude anticipated prejudicial evidence before the
evidence is actually offered."
38, 40 n.2 (1984).
Luce v. United States, 469 U.S.
These motions "are generally disfavored."
Acevedo v. NCL (Bah.) Ltd., 317 F. Supp. 3d 1188, 1192 (S.D. Fla.
2017).
"Evidence is excluded upon a motion in limine only if the
evidence is clearly inadmissible for any purpose." Id. "A motion
in limine is not the proper vehicle to resolve substantive issues,
to test issues of law, or to address or narrow the issues to be
tried." McHale v. Crown Equip. Corp., No. 8:19-cv-707-VMC-SPF,
2021 U.S. Dist. LEXIS 194217, at *3 (M.D. Fla. Oct. 1, 2021)
(citing LSQ Funding Grp. v. EDS Field Servs., 879 F. Supp. 2d 1320,
1337 (M.D. Fla. 2012)). Nor may "[a] party . . . use a motion in
limine to sterilize the other party's presentation of the case."
Johnson v. Gen. Mills Inc., 2012 U.S. Dist. LEXIS 199926, 2012 WL
13015023, *1 (C.D. Cal. May 7, 2012). Additionally, as the Supreme
Court has cautioned:
The ruling is subject to change when the case
unfolds, particularly if the actual testimony
differs from what was contained in the
defendant's proffer. Indeed even if nothing
unexpected happens at trial, the district
judge is free, in the exercise of sound
judicial discretion, to alter a previous in
limine ruling.
Luce, 469 U.S. at 41-42. A denial of a motion in limine is not a
ruling which affirmatively admits any particular evidence. See
Campbell v. Briere, No. 6:17-cv-1036-Orl-TBS, 2018 U.S. Dist.
LEXIS 136159, at *4 (M.D. Fla. Aug. 13, 2018).
II.
The operative pleading is Plaintiff’s Third Amended Complaint
(Doc. #72). The parties agree that after summary judgment the
claims which remain for trial are against deputy Matthew Kinney in
his individual capacity for: (1) assault under Florida law (Count
VII); (2) battery under Florida law (Count VIII); and (3) excessive
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force under 42 U.S.C. § 1983 (Count IX). (Doc. #151, p. 2.)
Deputy Kinney moves in limine to exclude certain evidence and
argument he asserts are irrelevant to any issue in this case or
inadmissible
under
Federal
Rule
of
Evidence
403
because
the
probative value is substantially outweighed by unfair prejudice
and it would confuse and potentially mislead the jury, or cause
undue delay. (Doc. #157, pp. 7-8). Plaintiff for the most part
opposes the motion. The court will address the parties’ arguments
in turn below.
A. Violations of Internal Policies
Deputy Kinney anticipates Plaintiff will submit evidence,
comments, or arguments to the jury that certain policies or
procedures of the Collier County Sheriff’s Office (“CCSO”) were
not followed by Deputy Kinney during or following his contact with
Plaintiff. Deputy Kinney argues that even an actual violation of
an internal policy does not equate to a constitutional violation,
so that any evidence, comments, or arguments regarding a violation
of internal policies would violate Federal Rules of Evidence, Rule
403.
(Doc. #157, p. 8.)
Deputy Kinney has not identified which policies he wishes to
exclude.
It is certainly true that many of the policies of the
CCSO would not be relevant, but some – such as a policy on the use
of force – have clear relevance and would not violate Rule 403.
Edwards v. Gilbert, 867 F.2d 1271, 1276-77 (11th Cir. 1989); Davis
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v. Scherer, 468 U.S. 183, 193-95 (1984); Townsend v. Benya, 287 F.
Supp. 2d 868, 876 (N.D. Ill. 2003) (finding a defendant's knowledge
of violating a policy was relevant to a Section 1983 claim and
therefore was not precluded at trial). Since the Court has not
been
provided
with
an
identification
of
which
policies
or
procedures are specifically at issue, this portion of the motion
is denied, and defendant may make objections at trial to individual
items of evidence.
B. Prior and Subsequent Alleged Bad Acts of Deputy Kinney or
Other CCSO Deputies
Deputy Kinney asserts that any evidence related to prior or
subsequent misconduct regarding himself or other CCSO deputies
should be excluded because it is prior bad act evidence, is not
relevant to whether he used excessive force, and as such, is highly
prejudicial. (Doc. #157, pp. 8-11.) Plaintiff, on the other hand,
argues that such evidence establishes “a pattern of conduct by the
defendants” and shows intent and motive for this type of conduct,
and therefore is admissible under Rule 404(b). (Doc. #162, pp. 45.)
Establishing that Deputy Kinney or other CCSO deputies have
a pattern or practice of using excessive force is exactly the type
of propensity evidence that Rule 404(b)(1) prohibits. See Luka v.
City
of
Orlando,
382
F.
App'x
840,
842-43
(11th
Cir.
2010)
(affirming district court's decision to exclude prior complaints
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of excessive force against the officer-defendant, stating that the
plaintiff was attempting to use such evidence to prove that the
officer "characteristically engaged in the use of excessive force
and acted in conformity with that characteristic."); Foltz v. City
of Largo, 2011 U.S. Dist. LEXIS 100602, 2011 WL 3919737, at *2
(M.D. Fla. 2011) (granting motion in limine to exclude evidence
relating to prior complaints or discipline against police officer
in § 1983 action for excessive force). Additionally, none of the
prior or subsequent acts identified relate to the use of an
excessive amount of force, and are not acts which would otherwise
be admissible. Accordingly, this portion of Deputy Kinney’s motion
is granted.
C. Testimony as to The January 3, 2017 Incident
Deputy Kinney seeks to exclude any evidence regarding a
traffic stop that occurred on January 3, 2017, involving Plaintiff
and his wife after Plaintiff illegally purchased marijuana from a
drug house (while under surveillance). Plaintiff testified in a
deposition that Deputy Kinney was at the January 2017 traffic stop,
which Kinney denies. The State of Florida prosecuted Plaintiff for
possession of marijuana and Plaintiff was required to attend a
July
6,
2017,
pretrial
conference
regarding
that
matter.
Plaintiff asserts that Deputy Kinney arrested him on July 5, 2017
so that Plaintiff would not be able to attend the conference.
Deputy Kinney asserts, however, that Plaintiff has presented no
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evidence in support of this allegation, that it has nothing to do
with the remaining claims in this case, and that it should be
excluded because it is highly prejudicial and irrelevant to the
outstanding claims. (Doc. #157, pp. 11-12.)
Assuming there is some evidence showing that Deputy Kinney
was present at the January 2017 traffic stop, and that Kinney had
some knowledge that Plaintiff had to attend a pretrial conference
on July 6, 2017, nothing which allegedly occurred during this event
is relevant to the claims being presented at trial. Any such
evidence is irrelevant to Plaintiff’s excessive force, battery,
and assault claims and its admission would violate Rule 403.
This
portion of Deputy Kinney’s motion is granted.
D. Testimony About Plaintiff Observing CCSO Harassing Drivers
and Pulling Over Haitians on July 5, 2017
Deputy
Kinney
also
moves
to
exclude
any
testimony
that
Plaintiff observed CCSO deputies stopping “Haitians” and harassing
drivers on July 5, 2017, that the CCSO deputies saw Plaintiff
witnessing these events, and this led to Plaintiff being stopped
by Deputy Kinney later that day. (Doc. #157, pp. 12-13.) Deputy
Kinney asserts that besides Plaintiff having no evidence to support
his claim, any such testimony would be prejudicial and irrelevant.
(Id., p. 13.) Plaintiff responds that any evidence regarding this
matter is relevant because it shows Deputy Kinney’s motive for
using excessive force against him. (Doc. #162, p. 7).
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Plaintiff’s argument is misplaced because in the context of
an excessive force claim the inquiry turns on whether Deputy
Kinney’s actions are objectively reasonable “without regard to his
underlying intent or motivation.” Crosby v. Monroe Cnty., 394 F.3d
1328, 1333 (11th Cir. 2004). See also Kesinger ex rel. Estate of
Kesinger v. Herrington, 381 F.3d 1243, 1248 (11th Cir. 2004)
(determination
of
whether
officer's
actions
violated
Fourth
Amendment right to freedom from excessive force is made "without
regard to his underlying intent or motivation"). Additionally,
whatever small probative value may exist is greatly outweighed by
prejudice
and
the
risk
of
jury
confusion
under
Rule
403.
Accordingly, this portion of Deputy Kinney’s motion is granted.
E. Testimony About Plaintiff’s “Run-In” With Former CCSO
Deputy Calkins and Plaintiff’s Participation in a Press
Conference
Deputy Kinney seeks to exclude testimonial evidence about two
alleged incidents: (1) an incident that occurred in approximately
1997, when Plaintiff was fourteen years old, and during which
former CCSO Deputy Calkins and other deputies allegedly raped
Plaintiff’s girlfriend (who had been making out with Plaintiff on
the beach) and chased Plaintiff down the beach; and (2) Plaintiff’s
participation in a 2013 press conference regarding Deputy Calkins1
and Plaintiff’s assurance by Sheriff Rambosk that Plaintiff would
According to Deputy Kinney, Deputy Calkins was terminated
from the CCSO in 2004. (Doc. #157, p. 13.)
1
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not be harassed for speaking out about his experience with Deputy
Calkins. (Doc. #157, pp. 13-14.) Deputy Kinney asserts that there
is
no
evidence
to
support
Plaintiff’s
allegations,
and
the
admission of any such testimony would be irrelevant and prejudicial
to the present claims. (Id.)
Plaintiff’s only response is that
the testimony about the events described above should be allowed
because it may reveal Deputy Kinney’s motive, knowledge, and intent
for using excessive force against him. (Doc. #162, pp. 7-8).
Neither of these incidents are in any way relevant to the
remaining claims in this case. The first is 20 years old and did
not involve Deputy Kinney. The second is four years before the
incident and also did not involve Deputy Kinney. Neither subject
matter is relevant to the remaining claims in this case. Plaintiff
does not convince the Court that there is any chance this evidence
will reveal Deputy Kinney’s motive, knowledge, or intent for using
excessive force, even if such were required.
Lee v. Ferraro, 284
F.3d 1188, 1198 n.7 (11th Cir. 2002)("the excessive force inquiry
should be completely objective, therefore excluding consideration
of the officer's intentions."). Additionally, such testimony would
clearly violate Rule 403. This portion of Deputy Kinney’s motion
is granted.
F. Testimony About Fabricating The Basis For Plaintiff’s
Traffic Stop on July 5, 2017 and The Lawfulness of
Plaintiff’s Arrest
Deputy Kinney asserts that the exclusion of any testimony or
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argument that he fabricated the basis for Plaintiff’s July 5, 2017
traffic stop or that the subsequent arrest was unlawful should be
excluded based upon the Court’s prior findings that the traffic
stop due to a seatbelt violation was proper and lawful, as was his
arrest. (Doc. #157, pp. 14-15.) Plaintiff responds that he does
not plan on introducing evidence regarding the traffic stop or
arrest because it has no bearing on the remaining claims for
excessive
force,
battery,
and
assault.
(Doc.
#162,
p.
8.)
Accordingly, the Court denies these portions of Deputy Kinney’s
motion as moot.
G. Argument Regarding Deputy Kinney’s
Plaintiff Being Racially Motivated
Actions
Against
Deputy Kinney asserts that any argument by Plaintiff——that
his actions against Plaintiff were racially motivated——should be
excluded on the basis of relevancy, lack of evidence of the same,
and that it would be unduly prejudicial. (Doc. #157, pp. 15-16.)
Plaintiff argues that this exclusion is overbroad, and that proving
Deputy Kinney’s actions were racially motivated could explain why
he used excessive force and impact Kinney’s credibility. (Doc.
#162, pp. 8-9.)
The Court agrees with Plaintiff that it would be improper to
invoke an across-the-board prohibition of any discussion of race.
While motivation or intent is not required to a determination of
excessive force under the Fourth Amendment, see Crosby, 394 F.3d
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at 1333; Lee, 284 F.3d at 1198 n.7, it will not be excluded if
properly supported. Deputy Kinney’s motion as to this portion is
therefore denied as overbroad.
H. Testimony About Deputy Kinney or
Destroying Plaintiff’s Cell Phone
Other
CCSO
Deputies
Lastly, Deputy Kinney seeks to exclude any testimony that he
or other CCSO deputies destroyed Plaintiff’s phone during the July
5, 2017 traffic stop and arrest. (Doc. #157, p. 16.) Deputy Kinney
emphasizes that the Court already denied Plaintiff’s request to
re-open discovery regarding this matter since any evidence was
irrelevant due to there being no phone-related allegations in the
operative complaint. (Doc. #113.) Deputy Kinney thus argues that
the Court should not allow testimony regarding the same as it is
prejudicial and irrelevant to Plaintiff’s claims. (Doc. #157, p.
17.)
Plaintiff maintains that he does not plan on introducing any
such evidence in contravention of the Court’s previous Order, that
is, he will not attempt to admit the actual cell phone or its
contents as evidence. (Doc. #162, p. 9.) Plaintiff nevertheless
argues that he should be able to testify about the traffic stops
he recorded on his phone because it is relevant to Deputy Kinney’s
motive and intent for using excessive force. (Id.) For the reasons
previously discussed, the intent and motivation for excessive
force is not germane to the jury’s inquiry in a Fourth Amendment
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context. Accordingly, Deputy Kinney’s motion is granted as to this
exclusion.
Accordingly, it is hereby
ORDERED:
Defendant Matthew Kinney’s Motion In Limine (Doc. #157) is
GRANTED in part and DENIED in part as set forth above.
DONE and ORDERED at Fort Myers, Florida, this
of February, 2024.
Copies:
Counsel of record
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4th
day
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