Bochner v. Martin County et al

Filing 340

ORDER denying 332 Motion in Limine and granting 333 Motion in Limine. Signed by Judge Robin L. Rosenberg See attached document for full details. (bkd)

Case 2:17-cv-14422-RLR Document 340 Entered on FLSD Docket 03/15/2021 Page 1 of 3

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 17-CV-14422-ROSENBERG/MAYNARD
NEAL BOCHNER,
Plaintiff,
v.
SHERIFF SNYDER, et al.,
Defendants.
__________________________/
ORDER GRANTING THE PLAINTIFF’S MOTION IN
LIMINE AND DENYING THE DEFENDANTS’ MOTION IN LIMINE
This matter is before the Court on the parties’ cross motions in limine at docket entries 332
and 333. Both motions have been fully briefed. For the reasons set forth below, the Defendants’
Motion is denied and the Plaintiff’s Motion is granted.
This is an excessive force case. The Plaintiff contends that when he was extricated from
his vehicle and arrested, the Defendants used excessive force. The Defendants contend that the
Plaintiff resisted arrested and the force used upon the Plaintiff was appropriate. The focus of both
motions in limine is the fact that, subsequent to the Plaintiff’s arrest, the Plaintiff pled nolo
contendere to the charge of resisting an officer with violence. The Plaintiff seeks to exclude
evidence of his conviction. The Defendants seek the admission of (i) the conviction, (ii) the
Plaintiff’s plea, (iii) the Plaintiff’s plea colloquy, and (iv) the testimony of the Assistant State
Attorney who prosecuted the Plaintiff.
The basis for the Defendants’ request is that, if the Plaintiff were to refuse to admit that he
resisted arrest with violence, his claim for excessive force would be barred pursuant to Heck v.
Humphrey, 512 U.S. 477 (1994). See Bursey v. Ameigh, No. 08-CV-744, 2010 WL 3119389

Case 2:17-cv-14422-RLR Document 340 Entered on FLSD Docket 03/15/2021 Page 2 of 3

(M.D. Fla. Aug. 4, 2010). This is so because a claim for excessive force cannot be maintained if it
would undermine the validity of a conviction. Id. at *1. The Defendants argue that because the
Plaintiff was convicted for fighting with officers with violence in the course of his arrest, he cannot
maintain a claim now for excessive force without undermining the validity of the conviction. This
is an unpersuasive argument for three reasons.
First, the Plaintiff admits that he resisted an officer with violence; he admits that, prior to
being extricated from his car he resisted with violence. DE 325. Such an admission means that the
Plaintiff’s claim is not barred under Heck. See Dyer v. Lee, 488 F.3d 876, 876 (11th Cir. 2007).
Because the Plaintiff’s claim is not barred under Heck, evidence to establish that defense is
irrelevant.
Second, the Court has already ruled on this issue in multiple orders. At docket entries 287
and 289, this Court ruled that the Plaintiff’s claims are not barred under Heck. The Plaintiff’s
claims are not barred because the Court, upon review of the Plaintiff’s plea colloquy, simply
cannot discern whether the Plaintiff’s conviction was for resisting with violence prior to his
extrication from his vehicle or after his extrication from his vehicle. The state court judge
accepting the Plaintiff’s plea simply provided no details into the record:
The Court: I will find a factual basis for your case as I did review the Affidavit in
depth preparing for a possible trial in our case. So there is a factual basis for those
charges.
DE 230-11 at 9. Because the affidavit the state court judge reviewed contained references to
violent resistance both before and after the Plaintiff left his vehicle, it is unclear what factual basis
for the plea the state court judge was referring to and to what, precisely, the Plaintiff pled.

2

Case 2:17-cv-14422-RLR Document 340 Entered on FLSD Docket 03/15/2021 Page 3 of 3

Third, because the Court cannot discern the precise factual basis for the Plaintiff’s
conviction, the Defendants want a jury to make the determination. Juries do not read plea
colloquies. Juries do not review state court decisions. For this reason, it is unsurprising that the
Defendants concede that they have been unable to locate any decision where a jury decided
whether a claim was barred under Heck.
For these reasons, the Court can see no basis for the admission of evidence pertaining to the
Plaintiff’s conviction or plea, and the Plaintiff’s Motion to exclude such evidence is granted and
the Defendants’ cross motion is denied. Nonetheless, the Court’s decision is without prejudice to
the extent that, if the Defendants can locate a case where a jury (i) was asked to determine whether
a case was barred under Heck or (ii) was asked to review a plea colloquy and make factual
determinations about the basis for the plea, the Defendants may provide that case to the Court and
the Court will review it.
For the foregoing reasons, the Plaintiff’s Motion in Limine [DE 333] is GRANTED
WITHOUT PREJUDICE and the Defendants’ Motion in Limine [DE 332] is DENIED
WITHOUT PREJUDICE.
DONE and ORDERED in Chambers, West Palm Beach, Florida, this 15th day of March,
2021.

________________________________
ROBIN L. ROSENBERG
UNITED STATES DISTRICT JUDGE
Copies furnished to Counsel of Record

3