McGown v. Arnold et al
OPINION AND ORDER GRANTING IN PART and DENYING PART 32 MOTION in Limine filed by Douglas Weaver, Fort Wayne City of, James Arnold, Chris Felton, GRANTING IN PART and DENYING IN PART 35 MOTION in Limine filed by Roy McGown, Jr. Counsel to warn and caution each and every one of their witnesses to strictly follow instructions outlined in this Opinion and Order. Signed by Magistrate Judge Roger B Cosbey on 10/30/2014. (lns)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
ROY MCGOWN, JR.,
JAMES ARNOLD, et al.,
Case No. 1:13-CV-148
OPINION AND ORDER
This matter is before the Court1 on the motions in limine filed by Plaintiff Roy McGown,
Jr. (Docket # 34, 35), and Defendants City of Fort Wayne and Fort Wayne Police Officers James
Arnold, Douglas Weaver, and Chris Felton (Docket # 33). For the following reasons, the motions
in limine will each be GRANTED IN PART and DENIED IN PART.
I. FACTUAL AND PROCEDURAL HISTORY
McGown is suing Defendants under 42 U.S.C. § 1983 for use of excessive force in
violation of the Fourth Amendment and for state law battery, or in the alternative, for failure to
intervene to prevent the use of excessive force. McGown’s claims arise out of events that
occurred on or about October 1, 2011, around 2:30 a.m., when he pulled over while driving in the
area of Wayne Trace and Oxford Street in Fort Wayne, Indiana, because he allegedly became ill.
McGown contends that the Officer Defendants approached his vehicle while it was stopped
southbound on Wayne Trace, and then used excessive force against him until he became
unconscious. He contends that when he awoke, he was in the hospital emergency room with
injuries to his ribs and head. (See Docket # 36.)
Jurisdiction of the undersigned Magistrate Judge is based on 28 U.S.C. § 636(c), all parties consenting.
(Docket # 8.)
Defendants dispute McGown’s version of events. According to Defendants, McGown
was intoxicated and passed out in a running vehicle stopped in a travel lane at an intersection.
Defendants claim McGown ignored the Officers’ instructions to exit the vehicle, and then
violently and forcefully resisted the Officers’ efforts to remove him from the vehicle, direct him
to the ground, and handcuff him. Defendants contend that the force they used was reasonable to
gain control of McGown. (See Docket # 37.)
II. NATURE OF AN ORDER IN LIMINE
“A motion in limine is a request for guidance by the court regarding an evidentiary
question.” Wilson v. Williams, 182 F.3d 562, 570 (7th Cir. 1999) (Coffey, J., concurring in part
and dissenting in part) (citation omitted). “Federal district courts have the power to exclude
evidence in limine pursuant to their authority to manage trials.” Dartey v. Ford Motor Co., 104 F.
Supp. 2d 1017, 1020 (N.D. Ind. 2000) (citation omitted).
“[A]s the term ‘in limine’ suggests, a court’s decision on such evidence is preliminary in
nature and subject to change.” Id.; see United States v. Connelly, 874 F.2d 412, 416 (7th Cir.
1989) (emphasizing that an order either granting or denying a motion in limine is “a preliminary
decision . . . subject to change based upon the court’s exposure to the evidence at trial”). In fact,
the Seventh Circuit Court of Appeals has specifically noted that “a ruling [in limine] is subject to
change when the case unfolds, particularly if the actual testimony differs from what was
contained in the proffer.” Connelly, 874 F.2d at 416 (“[E]ven if nothing unexpected happens at
trial, the district judge is free, in the exercise of sound judicial discretion, to alter a previous in
Thus, a ruling on a motion in limine is not a final ruling on the admissibility of the
evidence that is the subject of the motion; rather, an order on a motion in limine is essentially an
advisory opinion, “merely speculative in effect.” Wilson, 182 F.3d at 570-71 (citing Luce v.
United States, 469 U.S. 38, 41 (1984)).
III. MCGOWN’S MOTION IN LIMINE
A. Unopposed Portions of McGown’s Motion in Limine (Nos. 3-6)
Defendants do not object to McGown’s efforts to preclude references or allusions to
attorney fees; settlement negotiations; tax considerations; or “send a message” arguments in
opening or closing statements. As such, McGown’s motion is GRANTED as to these matters.
B. Narrative Reports of the Officer Defendants (No. 1)
McGown first seeks to bar any narrative reports by the Officer Defendants, claiming they
are biased, prejudicial, and constitute inadmissible hearsay. In response, Defendants contend that
the reports are admissible under Federal Rules of Evidence 803(8) (public records and reports)
and 803(5) (recorded recollection).
The reliability of police reports is “neither automatic nor presumed.” Downie v. Klincar,
759 F. Supp. 425, 428 (N.D. Ill. 1991). “Police reports of any kind are inherently more subjective
than laboratory reports of chemical tests, and . . . a police officer’s description of events as he
witnessed them lacks . . . objective certainty . . . .” Id. (citations and internal quotation marks
omitted). They “may be demonstrably reliable evidence of the fact that an arrest was made, [but]
they are significantly less reliable evidence of whether the allegations of criminal conduct they
contain are true.” Id. (alteration in original) (quoting United States v. Bell, 785 F.2d 640, 644 (8th
Cir. 1986)). Indeed “such evidence is ‘dripping with motivations to misrepresent’ and
accordingly lacks the trustworthiness necessary to qualify under the business records exception.”
Id. (citation omitted).
Presumably, the narrative reports may indeed be admissible, at least in part, under Rule
803(8) as public records and reports, although certain hearsay statements within the reports may
need to be redacted. However, without having an opportunity to rule in the context of the trial,
the admissibility of the documents and the prejudicial effect of the imbedded statements cannot be
ascertained. Therefore, at this juncture, McGown’s motion in limine is GRANTED. Counsel are
directed to confer in an effort to reach a stipulation concerning suitable redactions. Moreover,
until Defendants have laid a proper foundation, such narrative reports may not be read into
evidence under Rule 803(5).
C. McGown’s Criminal Record (No. 2)
McGown also attempts to preclude evidence regarding his criminal record, particularly
any prior convictions, arrests, or other alleged bad acts. In response, Defendants contend that if
any criminal convictions fall within Federal Rule of Evidence 609(a), they are admissible at trial
for impeachment purposes.
But neither party has informed the Court if McGown has any criminal convictions, let
alone those that fall within Rule 609(a). As such, until McGown’s criminal convictions, if any,
are revealed to the Court, the motion is GRANTED with respect to this evidence.
The only arrests that the parties refer to are those arising from the subject incident, which
are Resisting Law Enforcement, Possession of Marijuana, Possession of Paraphernalia, and
Operating a Vehicle While Intoxicated. Arrests that did not lead to a conviction are usually
inadmissable under Rule 403’s balancing test and Rule 404(b)’s bar against character evidence.
See Betts v. City of Chicago, 784 F. Supp. 2d 1020, 1024 (N.D. Ill. 2011).
The Court agrees with McGown that the charges brought against him as a result of the
subject incident should not be admitted. McGown is not making a false arrest or malicious
prosecution claim. The only issue in dispute is whether, in light of the facts and circumstances
known to them at the time, the Officers’ use of force against McGown was objectively
reasonable. See Sallenger v. Oakes, 473 F.3d 731, 742 (7th Cir. 2007). Whether McGown was
later charged with a crime is irrelevant to whether the amount of force the Officers used in
arresting him was excessive. Furthermore, significant prejudice or confusion could arise if the
jury seeks to retroactively gauge the reasonableness of the Officers’ use of force against the
knowledge that criminal charges were later lodged by the prosecuting attorney. Fed. R. Evid. 403.
Defendants will, however, be permitted to testify about why they arrested McGown, as
that would be relevant to the reasonableness of the force used. Fed. R. Evid. 402; see Payton v.
Fike, No. 1:09-cv-222, 2010 WL 4065601, at *3 (N.D. Ind. Oct. 15, 2010). This includes that
McGown was arrested for operating a vehicle while intoxicated, which speaks to his ability to
observe, recall and recount the events surrounding the alleged use of excessive force. See Casares
v. Bernal, 790 F. Supp. 2d 769, 785-87 (N.D. Ill. 2011) (“Where there is reason to believe that
alcohol or marijuana had seriously impaired a witness’s memory of the events to which he is
testifying or prevented him from understanding the events at the time they occurred, evidence of
his drug or alcohol use is admissible.”).
Therefore, McGown’s motion in limine is GRANTED in part and DENIED in part with
respect to this evidence.
IV. DEFENDANTS’ MOTION IN LIMINE
A. Unopposed Portions of Defendants’ Motion in Limine (Nos. 4, 5, and 9)
McGown does not object to Defendants’ efforts to preclude references or allusions to
settlement negotiations, whether the City of Fort Wayne will likely be paying for any judgment
against the Officer Defendants, or McGown’s “hearsay statements.” As such, Defendants’
motion is GRANTED as to these matters.
B. Citizen Complaints, Other Criminal or Civil Actions, or Discipline
Against the Officer Defendants and Information Contained in the Officers’
Personnel Files with the Fort Wayne Police Department (“FWPD”) (Nos. 1-3)2
Defendants seek to exclude evidence of criminal and civil actions, citizen complaints, or
discipline taken against the Defendant Officers Arnold, Weaver, or Felton during their tenure as
law enforcement officers. Defendants argue that the probative value of any such legal actions or
complaints is substantially outweighed by the prejudice to Defendants, and thus, should be
excluded under Rule 403.
In response, McGown contends that any prior criminal or civil actions or discipline that
were administered to Officers Arnold, Weaver, or Felton constitute evidence of habit and routine
practice admissible under Rule 406, as well as evidence of prior crimes or bad acts admissible
under Rule 404(b) to show modus operandi. In particular, McGown argues that Officer Arnold
“has a habit of escalating his violence and using excessive and unreasonable force against male
minorities who . . . were impaired or intoxicated.” (Pl.’s Resp. 5.)
In support of this assertion, McGown describes two prior incidents involving allegations
of excessive force where the aggrieved party was an African American male accused of being
intoxicated; one incident occurred in June 2010 with Officers Arnold and Felton and the other in
April 2010 with Officer Weaver. In addition, McGown cites Officer Arnold’s use of excessive
force against a mentally ill individual (of unknown race) in January 2013, which resulted in his
thirty-day suspension; and allegations of use of excessive force in his shooting of a suspect
The Court considers Defendants’ Motion in Limine No. 1 to encompass their Motions in Limine No. 2
(Officer Arnold’s Recent Thirty-Day Suspension; the Incident Occurring on January 31, 2013; FWPD’s Finding that
on January 31, 2013, Officer Arnold Used Excessive Force; Officer Arnold’s Police Action Shooting; Any Prior or
Current Lawsuits; and Any Settlement Amounts From Said Lawsuits) and No. 3 (Other Incidents Where Officers
Felton, Weaver, or Arnold Used Force). Therefore, the Court’s discussion and ruling on Motion in Limine No. 1
pertains to all three motions.
(minority, but non African-American) following a police pursuit in 2007.
“[B]efore a court may admit evidence of habit, the offering party must establish the degree
of specificity and frequency of uniform response that ensures more than a mere ‘tendency’ to act
in a given manner, but rather, conduct that is ‘semi-automatic’ in nature.” Thompson v. Boggs, 33
F.3d 847, 854 (7th Cir. 1994) (alteration in original and citation omitted). Here, McGown
attributes just one other instance of excessive force to Officers Weaver and Felton, and three other
instances of excessive force to Officer Arnold spanning a seven-year time frame. These
encounters, standing alone, fall short of the necessary “degree of specificity and frequency” to
admit evidence of habit or routine practice under Rule 406. See id. at 855 (finding that five
incidents failed to demonstrate a habit of using excessive force, absent any evidence of the total
number of contracts the officer had with citizens or the number of arrests he performed).
And as to Rule 404(b), McGown does not provide sufficient evidence that the Officer
Defendants’ alleged prior bad acts “bear a singular strong resemblance” to McGown’s allegations
of use of excessive force or battery. Treece v. Hochstetler, 213 F.3d 360, 363 (7th Cir. 2000)
(citations and internal quotations marks omitted). Consequently, McGown’s purported “modus
operandi evidence becomes nothing more than the character evidence that Rule 404(b) prohibits.”
Id. (citation omitted).
Furthermore, under Rule 403, the probative value of any prior or subsequent legal actions
or complaints involving the Officer Defendants is substantially outweighed by the likelihood of
causing a trial of those events within the trial of the principal action, undue delay, jury confusion,
and unfair prejudice to Defendants. Accordingly, Defendants’ motion in limine is GRANTED
with respect to this evidence.
C. Testimony That the Officers Used “Excessive Force” (No. 6)
Defendants seeks to prevent McGown and his witnesses from testifying that the Officers
used “excessive force” against him. But McGown asserts that his lay opinion concerning the
Officers’ use of excessive force is relevant and based on first-hand knowledge, and thus,
Contrary to McGown’s assertion, the Seventh Circuit has held that “lay testimony offering
a legal conclusion is inadmissible because it is not helpful to the jury, as required by Rule
701(b).” United States v. Noel, 581 F.3d 490, 496 (7th Cir. 2009). The purpose of a lay witness is
to inform the jury what is in the evidence, “not to tell it what inferences to draw from that
evidence.” Id. Although McGown and any witness to his arrest may testify about what they
observed, they cannot attach legal labels such as “excessive” or “unreasonable” to the Officers’
actions. See Larsen v. Barrientes, No. 1:09-cv-55, 2010 WL 2772325, at *3 (N.D. Ind. July 12,
2010); Norman v. City of Lorain, No. 1:04-cv-913, 2006 WL 5249724, at *4 (N.D. Ohio Nov. 16,
2006). Therefore, Defendants’ motion in limine is GRANTED with respect to this evidence.
D. Information That Was Not Disclosed Under Federal Rule of Civil Procedure 26(e) (No. 7)
Next, Defendants argue that McGown should not be able to introduce, admit, or argue any
information that he failed to provide pursuant to Federal Rule of Civil Procedure 26(e). McGown
objects, emphasizing that it would prevent him from using appropriate rebuttal evidence or
witnesses. Indeed, undisclosed witnesses may testify in rebuttal because the need for rebuttal
witnesses cannot always be anticipated and depends on what is introduced by the adversary.
United States v. Gasparik, 141 F. Supp. 2d 361, 368-69 (S.D.N.Y. 2001).
The only information that Defendants specifically mention in the context of this motion is
the video from the Officers’ in-car camera. Defendants state that McGown listed in his Rule
26(e) disclosures the video used at his criminal trial, which purportedly is an edited version rather
than the entire video. McGown, however, denies that he has an edited version of the video. After
briefing the issue, the parties seem to agree, and the Court does as well, that the entire in-car
video, not an edited version of it, should be shown to the jury. Therefore, this motion is
E. The Outcome of McGown’s Criminal Charges (No. 8)
Defendants also argue that McGown’s acquittal from all the criminal charges is irrelevant
to whether they used excessive force against him and should therefore be excluded at trial. They
emphasize that the determination whether the Officers used excessive force must be judged solely
on the facts and circumstances known to the Officers at the time of the arrest, not those presented
in a later criminal proceeding. In response, McGown asserts that if Defendants are allowed to
introduce evidence of his arrest but he is barred from showing that he was later acquitted of all
charges at a criminal trial, a chronological and conceptual void will occur, leading to jury
Defendants are correct; the outcome of McGown’s criminal case is not relevant to the
issue of whether Defendants used excessive force against him. “The only issue in dispute is
whether, in light of the facts and circumstances known to them at the time, [the Officers’] use of
force against [McGown] was objectively reasonable.” Ward v. Tinsley, No. 1:10-cv-329, 2011
WL 6151602, at *2 (N.D. Ind. Dec. 12, 2011) (citing Graham v. Connor, 490 U.S. 386, 397
(1989); Sallenger, 473 F.3d at 742); see Ochana v. Flores, 347 F.3d 266, 272 (7th Cir. 2003) (“It
was not an abuse of discretion for the court to grant the officers’ motion in limine to bar . . . the
disposition of the underlying criminal charges, because these were not facts within the officers’
knowledge at the time of the arrest . . . .”); Currier v. Baldridge, 914 F.2d 993, 996 (7th Cir.
1990) (“[T]he mere fact that [plaintiff] was acquitted of the crime for which he was initially
arrested does not lead to section 1983 liability for the arresting officer.”). “[The totality of the
circumstances] includes information which the officer had at the time of his actions, but not
information uncovered later.” Deering v. Reich, 183 F.3d 645, 650 (7th Cir. 1999).
Moreover, a jury may equate McGown’s acquittal from the resisting arrest charge with
complete exoneration, and therefore, impermissibly determine that Defendants used excessive
force against him. See Estate of Moreland v. Dieter, 395 F.3d 747, 755 (7th Cir. 2005) (“Evidence
of acquittal in a criminal action is generally irrelevant and inadmissible in a civil case involving
the same incident since it constitutes a negative sort of conclusion lodged in a finding of failure of
prosecution to sustain the burden of proof beyond a reasonable doubt.” (internal quotation marks
and citation omitted)). Thus, under Rule 403, the probative value of this evidence does not
outweigh the risk that such evidence will confuse and mislead the jury and unduly prejudice
Defendants. Accordingly, Defendants’ motion in limine is GRANTED with respect to this
F. Testimony That McGown Had a Stroke or That the
Subject Incident Caused His Alleged Stroke (No. 10)
Defendants seek to preclude any evidence or testimony that McGown suffered a stroke
eleven to twelve days after his arrest, and any lay testimony from McGown or others that his
arrest proximately caused the stroke.
Matters of causation generally necessitate expert testimony. See Cyrus v. Town of
Mukwonago, 624 F.3d 856, 863-64 (7th Cir. 2010); Christmas v. City of Chicago, 691 F. Supp. 2d
811, 821 (N.D. Ill. 2010). But here that avenue is closed to McGown because he never disclosed
any expert witnesses under Federal Rule of Civil Procedure 26(a)(2), including any treating
physicians, and the time to do so passed long ago. Brown v. City of Fort Wayne, No. 1:09-cv-150,
2011 WL 2690470, at *4 (N.D. Ind. July 11, 2011); see Fed. R. Civ. P. 26(a)(2)(D); see generally
Musser v. Gentiva Health Servs., 356 F.3d 751 (7th Cir. 2004) (citing O’Conner v.
Commonwealth Edison Co., 13 F.3d 1090, 1105 n.14 (7th Cir. 1994) (noting that treating
physicians are not exempt from the requirements of Federal Rules of Evidence 702 and 703
because “we do not distinguish the treating physician from other experts when the treating
physician is offering expert testimony regarding causation”)).
Defendants further argue that under Federal Rules of Evidence 701 and 702, testimony
from McGown or any other lay witness about the causation of McGown’s alleged stroke is
beyond his, or their, knowledge and qualifications. Under Rule 701, a lay witness may offer
opinion testimony to the extent that it is: “(a) rationally based on the witness’s perception; (b)
helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c)
not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.”
Therefore, a lay witness is entitled to testify about his “own perceptions, including the
physical and emotional effects of the defendants’ alleged conduct.” Christmas, 691 F. Supp. 2d at
821. He “cannot, however, offer medical opinions that require scientific, technical, or other
specialized knowledge,” or “give any complex medical diagnoses or opine on any long term
medical conditions.” Id.
Thus, McGown may testify about his own perception of his physical and mental health,
before and after the incident. See Collins v. Kibort, 143 F.3d 331, 337 (7th Cir. 1998) (“A witness
does not need to be a doctor to discuss his or her health in general terms.”). This includes
recounting any pain, fear, or anxiety he experienced during those times. See Hendrickson v.
Cooper, 589 F.3d 887, 893 (7th Cir. 2009) (allowing plaintiff to describe pain resulting from
attack where there is “no . . . complicated question of medical causation”); Holleman v.
Duckworth, 700 F.2d 391, 395 (7th Cir. 1983) (permitting plaintiff’s testimony as to his own
McGown may not, however, testify as to any diagnosis or condition. Cooper v. Dailey,
No. 07 C 2144, 2012 WL 1748150, at *7 (N.D. Ill. May 16, 2012); see Haack v. Bongiorno, No.
08 C 2488, 2011 WL 862239, at *3-4 (N.D. Ill. Mar. 4, 2011) (precluding plaintiff from offering
a detailed medical diagnosis (or self-diagnosis) of his alleged injuries). The fact that McGown
later suffered a stroke (which may become relevant if he claims his injuries from the arrest
persisted longer than eleven or twelve days) may be admissible upon proper medical testimony.
No witness, however, shall be permitted to opine that the arrest proximately caused the
stroke. United States v. Cravens, 275 F.3d 637, 640 (7th Cir. 2001) (“Although a lay person may
readily observe a [health] problem, the causation of a mental disease or defect is a more technical
medical determination such that a court would find expert testimony particularly useful to its
ultimate decision.” (emphasis in original)); see Mattioli v. Media News Group, No. Civ. 97-cv4846, 1999 WL 729255, at *1 (E.D. Pa. Sept. 8, 1999) (precluding plaintiff from testifying about
the cause of his stroke). Accordingly, Defendants’ motion is GRANTED IN PART and DENIED
For the foregoing reasons, Defendants’ and Plaintiff’s motions in limine (Docket # 32, 35)
are each GRANTED IN PART and DENIED IN PART as set forth herein. It is therefore
ORDERED that counsel, those acting on behalf of the parties, and any witnesses shall not refer to
the matters excluded pursuant to this Opinion and Order, either directly or indirectly, during voir
dire, opening statements, interrogation of witnesses, objection, arguments, closing statements, or
otherwise, without first obtaining permission of the Court outside the presence or hearing of the
jury. Counsel are further ORDERED to warn and caution each and every one of their witnesses
to strictly follow these instructions.
Enter for the 30th day of October, 2014.
S/Roger B. Cosbey
Roger B. Cosbey,
United States Magistrate Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?