Molina v. Perez et al

Filing 94

MEMORANDUM AND ORDER granting in part and denying in part 80 defendants' Motion in Limine; granting 81 plaintiff's Motion to Modify; granting in part and denying in part 82 plaintiff's Motion in Limine; and granting 91 plaintiff's Motion in Limine. Signed by Chief Judge J. Thomas Marten on 1/20/15. (mss)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JACOB MOLINA,
Plaintiff,
v.

Case No. 13-1025-JTM

AGENTS GREG PEREZ and
KARL TIMMONS, in their
individual capacities,
Defendants.

MEMORANDUM AND ORDER
Before the court are various motions in limine by both parties (Dkts. 80, 81, 82,
91). This action stems from the detention of plaintiff Jacob Molina on his property by
defendants Gerg Perez and Karl Timmons. Plaintiff filed a Bivens action against
defendants alleging Fourth Amendment violations for unreasonable seizure and
excessive use of force. The matter is scheduled for trial on January 21, 2015. Both parties
appeared before the court to argue these motions on January 14, 2015. The court
addresses each motion in turn.
I. Background
Plaintiff Jacob Molina is a pastor who lives with his wife on Barron Road in
Wichita, Kansas. The couple also owns a home located at 2216 S. White Cliff Road in
Wichita, where plaintiff’s brother-in-law lives. The brother-in-law and plaintiff’s fatherin-law share the same name: Jose Florencio Flores-Euceda.

Defendant Perez has been employed by Immigration and Customs Enforcement
(“ICE”) and its predecessor agency, Immigration and Naturalization Service, since May
1997. He is currently a Deportation Officer (DO) under the ICE Office of Enforcement
and Removal Operations (ERO). Defendant Timmons has been employed by ICE for
approximately 19 years. He is currently employed as a DO with the ICE ERO Fugitive
Operations Team in Wichita. Both defendants have training on the proper use of force
by law enforcement officers.
On July 1, 2011, defendants received information about an individual named Jose
Antonio Flores-Hernandez (the “target”), a citizen of Honduras with an outstanding
warrant of removal that was issued in August 2005. Through a search of available
databases, Timmons determined that a male with the target’s name and date of birth
possibly resided at 2216 S. White Cliff Road, Wichita, Kansas 67207.
Timmons conducted surveillance at the target address twice in August 2011. He
performed registration checks on the license plates of vehicles parked at the White Cliff
residence and discovered who owned the vehicles. One of the license plates was
registered to plaintiff at 9130 E. Barron Road, Wichita, Kansas 67207. Timmons learned
from a records check that plaintiff had been arrested by the Wichita Police Department
for unlawful discharge of a firearm on August 11, 1992, but the misdemeanor complaint
had been dismissed. Timmons also checked driver’s license photographs to determine
whether the target was using “Jacob Molina” as an alias. Plaintiff’s photograph
established that he was not the target.

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On August 17, 2011, Perez and Timmons went to the White Cliff address to
conduct additional surveillance, hoping to locate and apprehend the target. At
approximately 6:30 a.m., Timmons observed a gray Honda registered to plaintiff in the
driveway of the White Cliff residence, along with a new vehicle: a green Honda SUV.
Timmons called for a registration check on the green Honda; it was registered to a “Jose
Flores” living at 2216 S. White Cliff Lane, Wichita, Kansas 67207. Timmons believed the
information connected the target to the White Cliff residence, as suspected.
Defendants then decided to approach the house to talk with the occupants.
Neither officer was wearing an official law enforcement uniform. Timmons was
wearing civilian attire with his badge on a neck chain displayed outside his shirt and
body armor. Perez was wearing trousers and a blue polo shirt. He also wore a tan vest
over his body armor, which displayed a “POLICE” patch and a patch depicting an ICE
badge, and his badge on a neck chain outside his vest.
Between 7:45 and 7:50 a.m., Timmons knocked on the front door of the residence
and rang the doorbell. Nobody answered the door. He knocked and rang the doorbell
again but received no answer. Two dogs came to the window and barked. Timmons
stayed near the front door, periodically knocking and ringing the doorbell. He believed
the occupants might still be asleep or just awakened and could be getting dressed.
At approximately 7:55 a.m., plaintiff’s brother-in-law, Jose Florencio FloresEuceda, answered the door but did not introduce himself. He stayed inside with the
storm door closed and talked to Timmons through the glass. Timmons introduced
himself as an ICE agent. Jose asked Timmons what he was doing there. Timmons
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looked at the target’s photo and saw that the man who answered the door was not the
target. Timmons said he was looking for Jose Flores, the man who drove the green SUV.
Jose said that was his father. Timmons knew that the Jose Flores he was looking for was
too young to be this man’s father, so he asked the man in the doorway whether he was
Jose Flores. The man said that he was not.
The dogs continued barking in the house. Timmons asked if he and Perez could
come in and talk with the man, and if he would put the dogs away. The brother-in-law
responded that he would go put the dogs away and he shut the door. Defendants
waited about ten minutes before Timmons knocked and rang the doorbell again, but no
one responded.
Unbeknownst to defendants, the brother-in-law had called plaintiff after shutting
the door and told him two men were at the house. Plaintiff immediately drove to the
house, arriving at approximately 8:05 a.m. When plaintiff got out of his car, Timmons
recognized him from his driver’s license photograph.
Timmons identified himself as an ICE agent and called out the name “Jacob
Molina.” Plaintiff acknowledged that this was his name. Perez also introduced himself
as an ICE agent and asked whether plaintiff lived at the White Cliff residence. Plaintiff
replied that it was his property, but did not say that he lived at the residence.
Plaintiff asked defendants why they were there, and they said that they were
investigating. He asked them whether they had a warrant to search the property and
defendants replied that they did not. Plaintiff suggested that, as the property owner, he

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could tell them to leave if they did not have a warrant. Defendants did not have a
warrant and ordered plaintiff to leave.
Plaintiff then took out his cell phone and called 9-1-1. He gave the dispatch
operator the White Cliff address and said there were two individuals on his property.
Before he could give any additional information, defendants approached plaintiff from
behind, forced him to the ground and handcuffed him, leaving him face-down on the
ground. As a result, plaintiff suffered a large welt and some bruising.
After helping plaintiff to a sitting position, Timmons called an assistant U.S.
Attorney. They discussed whether defendants should obtain a search warrant. While
Timmons was on the phone with the attorney, plaintiff’s wife arrived. Timmons
explained to plaintiff and his wife that the officers were looking for Jose Antonio FloresHernandez, and he showed a photograph of the suspect. Plaintiff and his wife stated
that they did not know the suspect and that he did not live at the White Cliff residence.
A short time later, an older Hispanic man approached the house on foot. Plaintiff’s wife
introduced the man as her father, Jose Florencio Flores-Euceda. This was not the Jose
Flores the officers were looking for.
A pair of Wichita Police Department officers arrived at 8:27 a.m., summoned by
plaintiff’s 9-1-1 call. Plaintiff was released from the handcuffs. He then wrote down
defendants’ names so he could file a complaint with their ICE supervisor. Plaintiff filed
this Bivens action against Timmons and Perez, asserting Fourth Amendment violations
for unreasonable seizure and excessive force.

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II. Legal Standard
The motion in limine provides a trial court the opportunity “to rule in advance of
trial on the relevance of certain forecasted evidence, as to issues that are definitely set
for trial, without lengthy argument at, or interruption of, the trial.” United States v. Cline,
188 F. Supp. 2d 1287, 1291 (D. Kan. 2002) (quoting Palmieri v. Defaria, 88 F.3d 136, 141
(2d Cir. 1996)). The power to make evidentiary rulings in limine is not expressly
provided by statute or rule; it stems from the court’s authority to administer and try
cases. Luce v. United States, 469 U.S. 38, 41 n.4 (1984); see FED. R. EVID. 103(d), 104(c), 402,
403, 611(a). Such rulings may increase judicial efficiency, but many evidentiary rulings
“should be deferred until trial so that questions of foundation, relevancy and potential
prejudice may be resolved in the proper context.” Mendelsohn v. Sprint/United Mgmt. Co.,
587 F. Supp. 2d 1201, 1208 (D. Kan. 2008) (citing Sperberg v. Goodyear Tire & Rubber Co.,
519 F.2d 708, 712 (6th Cir. 1975)). An in limine evidentiary ruling is subject to change at
the court’s discretion “when the case unfolds” in trial. Luce, 469 U.S. at 41-42.
III. Analysis
A. Defendants’ Right to Raise Qualified Immunity Again at Trial (Dkt. 80)
Defendants were twice denied summary judgment on a qualified immunity
defense. (Dkts. 43, 70). They identify their right to raise the qualified immunity defense
at trial despite the court’s denial thereof on summary judgment. “A qualified immunity
defense, of course, does not vanish when a district court declines to rule on the plea
summarily. The plea remains available to the defending officials at trial . . . .” Oritz v.

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Jordan, 131 S. Ct. 884, 888-89 (2011) (where district court denied summary judgment on
qualified immunity). Thus, defendants may raise the defense again at trial.
B. Defendants’ Motions to Exclude Evidence (Dkt. 80)
1. Motion to Exclude Prior Disciplinary Actions Against Agent Timmons
During discovery, defendant Timmons disclosed two separate instances of prior
workplace disciplinary actions taken against him. The first, an incident between
Timmons and another ICE employee, was characterized as “Disrespectful Conduct to
Others.” The second, stemming from an argument between Timmons and a deputy
sheriff in a restaurant, was characterized as “Conduct Unbecoming” and “Failure to
Follow Policy.” The second incident also involved the misuse of an agency computer
database for a personal investigation. Timmons argues that these instances should be
excluded as irrelevant, or, alternatively, under Federal Rule of Evidence 403. Plaintiff
argues that the discipline related to Timmons’s personal use of a government database
is admissible for impeachment purposes because it speaks to his truthfulness or
untruthfulness.
Evidence that has any tendency to make a fact of consequence more or less
probable is relevant. FED. R. EVID. 401. Irrelevant evidence is not admissible. FED. R.
EVID. 402. Extrinsic evidence of specific instances of conduct “is not admissible to attack
or support [a] witness’s character for truthfulness.” FED. R. EVID. 608(b). Such instances
may be inquired into on cross-examination if “they are probative of the character for
truthfulness” of the witness or another witness. Id.

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The misuse of a government database for personal investigation, which resulted
in two weeks of discipline, does not tend to make any fact of consequence in this matter
more or less probable and is therefore irrelevant. Nor does it bear on Agent Timmons’s
character for untruthfulness. It may reflect his decision to break a rule, or other similar
matters of personal judgment, but it is not an inherently dishonest act. Further, Agent
Timmons did not attempt to conceal his transgression. This evidence is inadmissible for
impeachment or any other purpose.
The motion is GRANTED.
2. Motion to Exclude the Possibility of Indemnification or Insurance
Defendants move the court to prohibit any suggestion that the Department of
Homeland Security or ICE may indemnify defendants for any damages awarded in this
matter.
“Evidence that a person was or was not insured against liability is not admissible
to prove whether the person acted negligently or otherwise wrongfully.” FED. R. EVID.
411. Such evidence may be used only for other purposes, such as proving bias, agency,
or ownership. Id. Indemnity is treated the same as insurance under Rule 411. Perrin v.
Anderson, 784 F.2d 1040, 1047-48 (10th Cir. 1986). Such evidence is therefore
inadmissible to prove defendants’ liability in this case.
The court also finds it inappropriate to present testimony of indemnification by a
federal agency in a Bivens action for the following reasons. Evidence of indemnity may
be relevant for a determination of punitive damages because a jury must know what
impact a punitive award will have on a defendant. Id. Punitive damages are available in
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a Bivens action. Smith v. United States, 561 F.3d 1090, 1102 (10th Cir. 2009). Further,
federal agencies do, in certain circumstances, indemnify their agents in Bivens actions.
See F.D.I.C. v. Meyer, 510 U.S. 471, 486 (1994); INDEMNIFICATION OF EMPLOYEES ACTING IN
AN

OFFICIAL CAPACITY, DEPT. HOMELAND SEC. MGMT. DIRECTIVE SYS., MD Number 0415,

(2005). Thus, because it is proper to inform the jury of the impact punitive damages will
have on the paying entity, it may seem proper to inform the jury of whether defendants
will be indemnified or will remain personally liable.
However, the purpose of a Bivens action is to provide monetary recovery and
deterrence against a federal official in his individual capacity. A government agency
cannot be sued in a Bivens action. See Meyer, 510 U.S. at 485-86. The purpose of a Bivens
action is to deter the officer, not the agency. Id. Thus, it is inappropriate for a jury to
consider punitive damages, and thus the quantity of damages necessary to suffice as a
deterrent, against a federal agency where it is not the purpose of the action to deter the
agency. For this reason, the court finds that the jury should not be informed of whether
defendants may or may not receive indemnity – only that this action is against
defendants in their individual capacities and not their agency.
Accordingly, the motion is GRANTED.
3. Motion to Exclude The Abstract Value of Constitutional Rights
Defendants seek to exclude any argument that plaintiff can obtain damages
based on an abstract value of constitutional rights, rather than on actual injuries.
“The deprivation of constitutional rights, standing alone, does not entitle a
plaintiff to general damages.” Lippoldt v. Cole, 468 F.3d 1204, 1220 (10th Cir. 2006)
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(quotation and citation omitted) (affirming denial of compensatory damages and award
of nominal damages where constitutional right was violated but plaintiff proved no
actual injury). A plaintiff must demonstrate actual, compensable injury to recover
compensatory damages for constitutional violations. Id.; see also Memphis Cnty. Sch. Dist.
v. Stachura, 477 U.S. 299, 307-08 (1986).
Here, plaintiff’s counsel must make no mention of a compensatory damages
award based on the mere deprivation of a constitutional right in the absence of actual,
compensable damages.
The motion is GRANTED.
4. Motion to Exclude Plaintiff’s Position as a Volunteer Pastor
Defendants argue that plaintiff’s position as a pastor is irrelevant to this action.
Plaintiff argues that the evidence is relevant because the incident had a pronounced
traumatic effect on him due to his position as a pastor. Although injury to reputation is
not recoverable in a Bivens action, Siegert v. Gilley, 500 U.S. 226, 234 (1991), the court
finds no case law that disallows recovery of emotional non-economic damages in a
Fourth Amendment Bivens action. Therefore, the evidence may be relevant to a
damages determination. Further, plaintiff’s position as a pastor bears on the jury’s
understanding of who he is – no different than any other occupation or voluntary
position.
The motion is DENIED.

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C. Plaintiff’s Motion to Modify Pretrial Order (Dkt. 81)
Plaintiff moves to modify the pretrial order as to damages claimed, reducing the
compensatory damages from $100,000 to $25,000 and reducing the punitive damages
from $100,000 to $25,000.
A district court’s decision to modify a pretrial order is reviewed for abuse of
discretion. Joseph Mfg. Co., Inc. v. Olympic Fire Corp., 986 F.2d 416, 418 (10th Cir. 1993). A
final pretrial order may be modified “only to prevent manifest injustice.” FED. R. CIV. P.
16(e). “The party moving to amend the order bears the burden to prove the manifest
injustice that would otherwise occur.” Davey v. Lockheed Martin Corp., 301 F.3d 1204,
1208 (10th Cir. 2002).
Here, defendants oppose the modification because they wish to attack the larger
damages sought as grossly disproportionate to plaintiff’s actual injuries, thus framing
the action as unreasonable. Plaintiff seeks to modify the damages to an amount he
considers appropriate. It would be unjust to deny plaintiff’s attempt to seek an
appropriate amount of damages so that defendants can employ the aforementioned trial
strategy.
The pretrial order will be modified to reflect claims of $25,000 in compensatory
damages and $25,000 in punitive damages. Further, if defendants wish to raise the issue
of the original damages claim, plaintiff will be allowed to inform the jury that the
government opposed his effort to reduce the damages claim.
The motion is GRANTED.

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D. Plaintiff’s Motions in Limine to Exclude Evidence (Dkt. 82)
1. Motion to Exclude Any Evidence of Plaintiff’s 1992 Arrest
Plaintiff moves the court to exclude any evidence of his 1992 arrest for unlawful
discharge of a firearm. He argues that the evidence is irrelevant and is otherwise
inadmissible character evidence.
The arrest is extremely remote in time from the incident at issue in this trial.
Thus, whatever relevance the evidence may have on the objective analysis of
defendants’ conduct during the event in question, its probative value is substantially
outweighed by the risk of undue prejudice against plaintiff. FED. R. EVID. 403. The
evidence is inadmissible for substantive purposes. Defendants likewise may not present
evidence that plaintiff ever owned a firearm or possessed knowledge of firearms in
general.
The evidence is also inadmissible for the purpose of impeachment, should
plaintiff testify. Extrinsic evidence of specific instances of conduct “is not admissible to
attack or support [a] witness’s character for truthfulness.” FED. R. EVID. 608(b).
Although the court may allow such instances to be inquired into on cross-examination,
it may only do so if they bear on the witness’s character for truthfulness. The discharge
of a firearm does not bear on plaintiff’s character for truthfulness. Further, an arrest is
the act of an officer, not the arrestee, and cannot be used under Rule 608(b). Therefore,
the evidence is excluded for any purpose.
The motion is GRANTED.

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2. Any Evidence Concerning the Legal Status of Other Persons
Plaintiff seeks exclusion of any evidence concerning the legal status of any of his
relatives, friends, or acquaintances and any evidence concerning whether he ever
sponsored, aided, or assisted anyone in obtaining legal status in the United States. He
asserts that all such evidence is irrelevant. Defendants plan to use such evidence to
demonstrate plaintiff’s credibility, state of mind, knowledge, intent, plan, motives,
beliefs, and conduct. They intend to show that plaintiff was belligerent, aggressive,
uncooperative, and determined to distract them from communicating with the man
who answered the door.
Evidence that has any tendency to make a fact of consequence more or less
probable is relevant. FED. R. EVID. 401. Evidence of crimes, wrongs, or other acts may be
admissible for non-character evidence purposes, “such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”
FED. R. EVID. 404(b)(2).
Here, defendants confirm that they learned of the illegal status of three residents
of White Cliff, including Mrs. Molina’s immediate family members, after the incident.
Such evidence is irrelevant to the substantive issues of this case because it has no
bearing on defendants’ objective reasonable suspicion or use of force. Similarly, an
attempt to use the evidence as “other acts” to prove plaintiff’s motive, knowledge, or
otherwise does not bear on the objective analysis of what defendants observed and
responded to during the incident. Defendants similarly argue that the illegal status of
the three residents is relevant to Jose Flores Florencio Euceda’s credibility, state of mind,
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knowledge, and motives. The evidence is likewise irrelevant for this purpose.
Defendants argue that the fact that Jose Flores Florencio Euceda was born in Honduras
is relevant because defendants’ target was also born in Honduras. Euceda’s place of
birth may well be relevant to an objective analysis of their reasonable suspicion, but his
immigration status is not.
Further, extrinsic evidence of specific instances of conduct “is not admissible to
attack or support [a] witness’s character for truthfulness.” FED. R. EVID. 608(b). Such
instances may be inquired into on cross-examination if “they are probative of the
character for truthfulness” of the witness or another witness. Id. Evidence of specific
conduct related to immigration status bearing on untruthfulness, but not merely the
status itself, may be inquired into on cross-examination under Rule 608(b). United States
v. Thiongo, 344 F.3d 55, 60 (1st Cir. 2003) (finding evidence of a sham marriage to evade
immigration laws probative of untruthfulness); Bonilla v. Jaronczyk, 354 F. App’x 579,
583 (2d Cir. 2009) (unreported) (use of false papers to reenter United States admissible
on cross-examination to prove untruthfulness).
Defendants intend to attack Mrs. Molina’s credibility with evidence that she
made false statements under oath on immigration forms or applications. Although the
court may allow inquiry into these matters on cross-examination, it will not do so
because of the high risk of undue prejudice to plaintiff. Further, it may be an attempt to
back-door otherwise excluded immigration status evidence. The evidence is excluded.
The motion is GRANTED.

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3. Evidence Concerning Defendant Perez’s Box Cutter Experience
Plaintiff moves to exclude evidence that Perez was assaulted with a box cutter
five months prior to the incident at issue in this case. Plaintiff argues that such evidence
is irrelevant to the objective analyses required in this case.
Plaintiff’s unreasonable seizure claim requires an objective analysis of whether
defendants acted on “reasonable suspicion supported by articulable facts that criminal
activity may be afoot.” Cortez v. McCauley, 478 F.3d 1108, 1115 (10th Cir. 2007). Evidence
of Perez’s personal experience does not make any fact of consequence in this analysis
more or less probable. The analysis here turns on whether defendants’ observations at
the time of the incident objectively justified the seizure. Whether a defendant was
particularly wary due to past experiences does not factor into the analysis and is
irrelevant.
Plaintiff’s excessive force claim requires an objective analysis of whether the
force used was reasonably necessary to effect a lawful arrest under the circumstances,
from the perspective of a reasonable officer. Plumhoff v. Packard, 134 S. Ct. 2012, 2020
(2014); Cortez, 478 F.3d 1126. Therefore, subjective evidence of Agent Perez’s
experiences is likewise irrelevant to the excessive force analysis. The evidence is
irrelevant to this inquiry as a whole and is inadmissible.
At the hearing, the parties also raised the issue of a newspaper article that
commends Agent Perez for his work in immigration and his fair treatment of illegal
aliens. This evidence is similarly irrelevant to the inquiry at hand. Any attempt to use

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the newspaper article to rehabilitate Agent Perez as a witness should be discussed with
the court prior to use.
The motion is GRANTED.
4. The Report, Findings, and Testimony of Agent Mike Holliday
Plaintiff seeks to exclude the report of Special Agent Mike Holliday, DHS Office
of the Inspector General, regarding the incident pursuant to plaintiff’s administrative
complaint filed with DHS. The report found a lack of evidence supporting plaintiff’s
claim, eyewitnesses who contradicted plaintiff, and a lack of candor from plaintiff.
Plaintiff argues that the report is inadmissible hearsay. Plaintiff also argues that the fact
that defendants were cleared of wrongdoing by the internal investigation is
inadmissible. Plaintiff finally argues that Agent Holliday should not be allowed to
testify because his testimony would present numerous hearsay issues and would likely
only elicit his own opinions on the ultimate issues of the case, or to attack plaintiff’s
truthfulness.
Defendants argue that the evidence is admissible as a record or statement of a
public office. “A record or statement of a public office” is admissible as an exception to
the rule against hearsay if “(A) it sets out: . . . in a civil case . . . factual findings from a
legally authorized investigation; and (B) neither the source of information nor other
circumstances indicate a lack of trustworthiness.” FED. R. EVID. 803(8). Portions of
investigatory reports based on factual investigations are admissible under Rule 803(8),
even if they state a conclusion or opinion. Beech Aircraft Corp. v. Rainey, 488 U.S. 153,
169-70 (1988) (finding admissible a JAG Report published pursuant to the investigation
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of a U.S. Navy aircraft crash). Such reports are admissible even to the extent that they
contain opinions in the factual findings. Id. at 169.
Although the report and testimony of Special Agent Holliday may be admissible
under Rule 803(8) and Beech Aircraft Corp., the evidence is excluded here under Rule
403. The court does not wish the jury to hear the narrative in this case from the agency’s
investigatory perspective when it will be sufficiently provided by witnesses to the
incident. The conclusion that defendants were cleared of wrongdoing addresses the
same question we now ask a jury to decide in a different context. Admitting the report’s
conclusion risks suggesting to the jury that it should reach the same conclusion. Here,
the jury will be capable of forming informed factual conclusions given the anticipated
testimony. The report and testimony of Agent Holliday is excluded.
The motion is GRANTED.
5. Motion to Exclude the Testimony of Sandrine Lisk
Plaintiff moves to exclude the testimony of Mrs. Molina’s former employer,
immigration attorney Sandrine Lisk. Ms. Lisk spoke with a defendant on the phone
during the incident. The conversation is recorded in part on plaintiff’s 9-1-1 phone call.
Plaintiff argues that her testimony will present hearsay issues. Ms. Lisk may have
relevant testimony to offer from personal knowledge. The nature of her testimony, if
any, is unclear at this point. Accordingly, the court defers its ruling on her testimony
until trial.
The motion is DENIED.

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6. Motion to Exclude the Testimony of AUSA Brent Anderson
Defendants do not plan to call Mr. Anderson to testify at this time. The motion is
therefore moot. Any ruling will be deferred to such time as defendants call Mr.
Anderson to testify.
The motion is DENIED.
7. Motion to Exclude Any Testimony That a Warrant of Removal Authorizes
Agents to Enter a Home
Plaintiff is concerned that a jury may misconstrue a warrant of removal as
granting defendants authority to enter and remain in a home. Defendants do not intend
to testify that a warrant of removal allows agents to enter a home. However, they do
plan to show that they had a warrant of removal to take Jose Antonio Flores-Hernandez
into custody and remove him. Such testimony brings considerable risk of confusing the
jury due to the differing nature of arrest and removal/deportation warrants.
Accordingly, to avoid confusion of the jury, testimony regarding the warrant of
removal should be accompanied by explanation of the difference between such warrant
and a search or arrest warrant. The court may instruct the jury on this issue. Defendants
must not imply that the warrant of removal is the same as an arrest or search warrant.
The motion is GRANTED.
8. Motion to Exclude Testimony That Defendants Did Not Need a Warrant or
Landlord Consent
Plaintiff seeks exclusion of testimony that defendants did not need a warrant to
remain on plaintiff’s property after Jose Florencio Flores-Euceda shut the front door.
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Plaintiff does not make an unreasonable search claim. Whether defendants needed a
warrant to remain on plaintiff’s property does not tend to make any fact of consequence
to the unreasonable seizure or excessive force claim more or less likely because justified
presence on the property does not contribute to justification of the arrest or force used.
The only relevant aspect of this sub-issue is whether plaintiff asked for a warrant,
because that is a fact pertinent to the nature of the interaction between defendants and
plaintiff that may lead them to believe crime is afoot. However, to avoid the substantial
risk of confusing the jury, the evidence is excluded.
The motion is GRANTED.
9. Motion to Exclude the Testimony of Officers Clifton and Halverson
Officers Clifton and Halverson are Wichita Police Department officers who
responded to the scene of the incident at issue. Plaintiff argues that the officers “have no
information concerning the actual incident that is the basis for plaintiff’s claim because
they arrived after the fact.” (Dkt. 82, at 16). Plaintiff moves the court to limit their
testimony to personal observations and not to entail any information relayed to them by
defendants.
Defendants intend to call Officer Halverson to testify as to anything he saw or
heard that would evidence plaintiff’s alleged injuries. Testimony as to what he saw is
admissible as a witness with personal knowledge. FED. R. EVID. 602. Things he may
have heard from persons will be limited to hearsay exceptions. Defendants intend to
offer Officer Halverson’s testimony as to what defendant Perez said to him, arguing
that it qualifies as a hearsay exception under Rule 803(1).
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Out of court statements are not excluded by the rule against hearsay when the
declarant makes “[a] statement describing or explaining an event or condition, made
while or immediately after the declarant perceives it.” FED. R. EVID. 803(1). Here, Officer
Halverson arrived on the scene several minutes after the incident occurred. Thus,
whatever defendant Perez said to him was not said “while or immediately after” Perez
perceived it. Id. (emphasis added). Perez had time to consider the event before
communicating it to Halverson. Perez’s statements to Officer Halverson about the
incident are inadmissible hearsay.
Plaintiff’s motion is GRANTED to the extent that Officers Clifton and Halverson
may not testify as to what defendant Perez told them about the incident upon their
arrival.
10. Motion to Exclude Plaintiff’s Journal Entries [GRANTED IN PART]
Plaintiff moves to exclude any entries in his personal journal other than the one
concerning this incident. Defendants agree that no other pages will be offered aside
from the very first page, dated 8/6/11 and identifying plaintiff as the author, and the
entry relevant to this incident, dated 8/21/11.
The motion is GRANTED to the extent that the only pages admitted will be those
dated 8/6/11 and 8/21/11.
11. Motion to Exclude Any Reference to Prior Damages Claims
The court granted plaintiff’s motion to amend the pretrial order to reduce
damages claims to $25,000 in compensatory and $25,000 in punitive damages. He
moves the court to exclude any mention of prior demands for damages.
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The court will allow defendants to discuss prior damages claims. However,
should defendants do so, plaintiff will be allowed to inform the jury that defendants
opposed his motion to reduce damages.
The motion is DENIED.
E. Plaintiff’s Supplemental Motion in Limine (Dkt. 91)
Plaintiff moves the court to exclude the testimony of his neighbor, Virginia
Lindahl, regarding her thoughts and observations about plaintiff’s property. Ms.
Lindahl was interviewed during the DHS investigation of the incident and noted that
she knew all cars coming and going in the neighborhood except those at plaintiff’s
residence, and that his property was a constant source of problems in the
neighborhood. Plaintiff notes that such testimony was not known to defendants at the
time of the incident and thus had no bearing on their evaluation of reasonable
suspicion, probable cause, or use of force. The court agrees.
Ms. Lindahl’s opinion testimony regarding plaintiff’s property is irrelevant to
this action and is excluded. This order does not preclude any other relevant or
admissible testimony Ms. Lindahl may offer, such as impeachment of another witness.
The motion is GRANTED.
IT IS ACCORDINGLY ORDERED this 20th day of January, 2015, that
defendants’ motion in limine (Dkt. 80) is GRANTED in part and DENIED in part, as
described in this order.

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IT IS FURTHER ORDERED that plaintiff’s motions (Dkts. 81, 91) are GRANTED,
and his motion to exclude evidence (Dkt. 82) is GRANTED in part and DENIED in part
as described in this order.
s\ J. Thomas Marten
J. THOMAS MARTEN, JUDGE

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