Briggs et al v. Phebus et al

Filing 74

ORDER & REASONS: granting in part and denying in part 56 Motion in Limine; ORDERED that Plaintiffs' Motion in Limine (Rec. Doc. 56 ) is GRANTED only to the extent it seeks to exclude evidence arising from the grand jury proceedings of Deputy Phebus. FURTHER ORDERED that Plaintiffs' Motion in Limine is DENIED AS PREMATURE in all other respects. Signed by Judge Carl Barbier on 8/7/13. (sek, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

WILLENE BRIGGS ET AL.

CIVIL ACTION

VERSUS

NO: 12-2145

WILLIAM PHEBUS ET AL.

SECTION: "J” (4)

ORDER AND REASONS
Before the Court is Plaintiffs' Motion in Limine (Rec. Doc.
56), Intervenor's Memorandum in Support (Rec. Doc. 61) and
Defendants' opposition thereto (Rec. Doc. 63). Plaintiffs' motion
was set for hearing on July 31, 2013, and this matter is set for
trial by jury on May 5, 2014. The Court, having considered the
motions and memoranda of counsel, the record, and the applicable
law, finds that Plaintiffs' motion should be GRANTED in part and
DENIED in part for the reasons set forth more fully below.
PROCEDURAL HISTORY AND BACKGROUND FACTS
This

action

arises

out

of

allegations

of

civil

rights

violations under 42 U.S.C. § 1983 et seq., as well as state law
survival,

wrongful

death,

emotional
1

distress,

and

negligence

claims.1 Plaintiffs allege that their son/brother, Cjavar “Dee
Jay” Galmon (“Mr. Galmon”) was shot and killed by Deputy William
Phebus ("Deputy Phebus") on August 11, 2012, outside of a club
("Club 41") in Tangipahoa Parish. (See generally, Compl., Rec.
Doc. 1, pp. 1-6, ¶¶ 3-46) Plaintiffs contend that the shooting
was unprovoked and occurred during a situation which did not
necessitate the use of deadly force. (Compl., Rec. Doc. 1, p. 3,
¶¶ 13 - 17) Plaintiffs assert that after the shooting occurred,
Deputy Phebus

and the other officers at the scene did not render

life-saving emergency care to Mr. Galmon, did not allow the
medical professionals who witnessed the shooting to administer
care to Mr. Galmon, and did not seek other emergency assistance
for

Mr.

Galmon.

(Compl.,

Rec.

Doc.

1,

p.

4,

¶¶

22

-

25)

Plaintiffs allege that Mr. Galmon's mother, Plaintiff Willene
Briggs ("Ms. Briggs") and

Mr. Galmon's sister, Plaintiff Kim

Brumfield ("Ms. Brumfield"), arrived to the scene of the shooting
shortly after it occurred, and that they both witnessed their
son/brother suffering physical pain and dying on the ground.
1

Plaintiffs incorrectly assert their state law survival, wrongful death, and
emotional distress claims through 42 U.S.C. § 1983. § 1983 is only a vehicle for
relief when a state actor violates a constitutional right or a federal statutory
right. Therefore, while Plaintiffs were correct in bringing their excessive force
and denial of medical treatment claims under § 1983, their survival, wrongful
death, and emotional distress claims should be brought as state law claims along
with their negligence claim which was correctly treated as a state law claim in
the complaint.

2

(Compl., Rec. Doc. 1, pp. 4-5, ¶¶ 27 - 30) Plaintiffs report that
neither Ms. Briggs nor Ms. Brumfield were allowed to render any
assistance and/or comfort to Mr. Galmon. (Compl., Rec. Doc. 1,
pp. 4-5, ¶¶ 27 - 30)
On August 21, 2011, Ms. Briggs and

Ms. Brumfield filed the

instant suit naming Sheriff Daniel Edwards (“Sheriff Edwards”)
and Deputy Phebus as Defendants. (Rec. Doc. 1) Following the
initial complaint, Defendants filed a motion to dismiss. (Rec.
Doc. 5) The Court dismissed Plaintiffs' claims without prejudice
because Plaintiffs failed to affirmatively negate the existence
of

primary

beneficiaries

as

is

required

when

inferior

beneficiaries assert survival and wrongful death claims. (Rec.
Doc.

7).

The

Court

granted

Plaintiffs

leave

to

amend

their

complaint to remedy this deficiency, and on November 26, 2012,
Plaintiffs filed their First Amended Complaint. (Rec. Doc. 8). On
February
Complaint

20,

2013,

wherein

Plaintiffs

they

added

filed

two

their

additional

Second

Amended

plaintiffs,

Mr.

Galmon's siblings, Mr. Allen Briggs ("Mr. Briggs") and Ms. Kendra
Pendleton ("Ms. Pendleton"), as well as an additional Defendant,
Deputy Phebus and Sheriff Edwards' liability insurer, Columbia
Casualty Company ("Columbia"). In their Second Amended Complaint,
Plaintiffs assert a direct action against Columbia pursuant to

3

Louisiana Revised Statute § 22:1269.2
Plaintiffs

seek

damages

against

Deputy

Phebus,

Sheriff

Edwards, and Columbia, on Mr. Galmon’s behalf as well as on their
own behalves. Specifically, Ms. Briggs seeks relief on her own
behalf under 42 U.S.C. § 1983 for civil rights violations and
under Louisiana’s wrongful death statute, Louisiana Civil Code
article 2315.1, and on Mr. Galmon’s behalf under Louisiana’s
survival action statute, Louisiana Civil Code article. 2315.2. In
addition, Ms. Briggs and Ms. Brumfield seek to recover on their
own

behalves

for

the

mental

anguish

and

distress

caused

by

viewing Mr. Galmon’s suffering and death under Louisiana Civil
Code article 2315.6.
On April 26, 2013, Mr. Galmon's father, Carl Galmon, moved
to intervene.

Magistrate Judge Karen Wells Roby granted his

motion, and Carl Galmon filed his complaint on April 30, 2013.
(Rec. Doc. 28) Carl Galmon seeks damages against Deputy Phebus
and Sheriff Edwards on his own behalf under 42 U.S.C. § 1983 for
civil

rights

violations,

under

Louisiana’s

wrongful

death

statute, Louisiana Civil Code article 2315.1, and under Louisiana

2

Plaintiffs assert an action under Louisiana Revised Statute 22:655; however, the
direct action statute was renumbered as Louisiana Revised Statute § 22:1269,
effective January 1, 2009. No. 415, § 1, 2008 La. Sess. Law Serv. (West).

4

Civil Code article 2315.6 for the mental anguish and distress
caused from viewing Mr. Galmon’s suffering and death at the scene
of the incident. In addition, Carl Galmon seeks damages on Mr.
Galmon’s

behalf

under

Louisiana’s

survival

action

statute,

Louisiana Civil Code article 2315.2.
On May 22, 2013, Defendants moved for leave to file a third
party complaint against Marquis Martin a/k/a Macquis Martin a/k/a
Macquas Martin ("Martin"). (Rec. Doc. 36) Defendants allege that
Martin

is

at

least

partially

liable

in

this

matter

because

Martin's actions on the evening in question allegedly led to the
incident

wherein

Mr.

Galmon

was

fatally

wounded.

Defendants

allege that, on the evening that Mr. Galmon was shot outside of
Club 41, there was a shooting at another nearby club ("Spur
Station"). Shortly after the Spur Station shooting, there was a
disturbance

at

Club

41

to

which

officers

responded.

When

officers, including Deputy Phebus, arrived at the scene, a woman
pointed out that Martin had a gun. Defendants allege that when
they tried to apprehend Martin, he fled. When officers caught
Martin, Defendants aver that Mr. Galmon tried to assist Martin,
despite being told to stand back, and was wounded when Deputy
Phebus's firearm accidentally discharged. Plaintiffs opposed the
motion, and Magistrate Judge Roby held oral argument on June 26,

5

2013.3 On July 9, 2013, Plaintiffs filed the instant motion in
limine. (Rec. Doc. 56) Intervenor Carl Galmon filed a memorandum
in support of Plaintiffs' motion on July 18, 2013. (Rec. Doc. 61)
Defendants filed their opposition to the motion on July 23, 2013.
(Rec. Doc. 63).4
PARTIES’ ARGUMENTS
Plaintiffs

and

Intervenor

seek

to

exclude

the

following

evidence: (1) any evidence or testimony concerning the criminal
background and/or prior actions of Martin5 or the Spur Station
shooting, (2) any testimony or evidence concerning the grand jury
proceeding

regarding

Deputy

Phebus

or

the

results

of

such

proceedings, and (3) any testimony or evidence from the Louisiana
State Police report(s) concerning the Club 41 incident or the
Spur Station shooting that is not based on direct knowledge of
the author of the report.
Plaintiffs

argue

that

any

evidence

regarding

Martin's

actions at the Spur Station on the evening of the incident or any
3

The order on this motion is currently pending.

4

Also pending in this matter is Defendants' motion for protective
order. This motion is set for hearing on the briefs by Magistrate Judge Roby
on July 31, 2013. The motion is unrelated to the instant motion and deals with
keeping Plaintiffs' from disseminating video depositions to the media.
5

Plaintiffs assert that, at the oral argument concerning Defendants'
motion for leave to file a third party complaint, Defendants indicated that
they would introduce evidence and argue at trial that Martin's actions relate
in some way to Mr. Galmon's death.

6

evidence of Martin's criminal background should not be admitted
to suggest that the events occurring prior to the incident at
Club 41 were in any way related to Deputy Phebus's shooting of
Mr. Galmon. Plaintiffs urge that such evidence should be excluded
under Federal Rule of Evidence 403 and Carter v. Hewitt, 617 F.2d
961, 972 (3d Cir. 1980) because it is "prejudicial and lacking in
probative value." (Rec. Doc. 56-1, p. 2.)

As to the grand jury

proceedings regarding Deputy Phebus, Plaintiffs rely on Fidelity
and Casualty Company of New York v. Talbot, 234 F.2d 425, 428
(5th Cir. 1956) to argue that if "a no true bill is returned
[after a grand jury proceeding], the evidence is inadmissible."
(Rec. Doc. 56-1, p. 3.) Finally, Plaintiffs contend that the
police

report

is

largely

composed

of

hearsay,

which

is

not

admissible under Federal Rule of Evidence 802 unless there is
some exception that applies. Plaintiffs argue that there is no
such exception for information contained in police reports, as
noted in State v. Perkins, 97-1119 (La. App. 3 Cir. 6/17/98), 716
So. 2d 120, 127. Therefore, while Plaintiffs do not oppose any
evidence that provides opinions or factual findings that would
support the statements in the report, Plaintiffs maintain that
the report itself is inadmissible.
Intervenor

Carl

Galmon

supports

7

the

assertions

made

by

Plaintiffs and adds to certain points in his memorandum. Carl
Galmon argues that any evidence concerning Martin's background
and any evidence from the Spur Station is irrelevant to the
Defendants' argument that Deputy Phebus unintentionally fired his
weapon at Mr. Galmon. Carl Galmon also asserts that such evidence
is highly prejudicial and only serves to "tar [Mr.] Galmon with
any faults they can dredge on [Martin]." (Rec. Doc. 61, p. 2)
Carl Galmon further alleges that evidence of the grand jury's
decision not to charge Deputy Phebus is opinion evidence and must
be excluded.

Moreover, the grand jury decision is prejudicial

because it is possible for a layman juror in the present case to
believe that the grand jury decision carries more weight than it
truly does. Additionally, Carl Galmon argues that Federal Rules
of Evidence 402 and 403 both prohibit the introduction of a grand
jury decision. Finally, Carl Galmon contends that the police
report is inadmissible hearsay, thus must be excluded to the
extent that statements within the report are not covered by an
exception to the hearsay rules. Carl Galmon asserts, however,
that such determinations concerning the police report would be
best made at trial or during pre-trial rulings.
Defendants argue that Plaintiffs'/Intervenor's attempt to
exclude all evidence relating to Martin and the Spur Station

8

shooting is premature. Defendants contend that a motion in limine
may be dismissed "as premature due to ongoing discovery which
could altogether moot the issue of relevance." Lewis v. Royal
Ins. Co. of Am., No. 02-cv-1665, 2003 WL 21219870, *2 (E.D. La.
May 20, 2003) (Zainey, J.) Defendants argue that such evidence
"could very well be relevant," but Martin has yet to be deposed,
and it is unclear whether any evidence about Martin or the Spur
Station shooting will be relevant and/or prejudicial.
Defendants contend that the Louisiana State Police report is
generally admissible under the public records exception contained
in Federal Rule of Evidence 803(8). Moreover, Defendants again
assert that the motion is premature because (a) witness and
exhibit lists are not due until February, and (b) Defendants are
still

engaged

portions

of

Therefore,

in

the

discovery,
voluminous

Defendants

and

they

report

request

that

do

not

know

they

may

rely

the

motion

be

on
at

which
trial.

denied

as

premature or, in the alternative, deferred.
Defendants

do

not

articulate

any

opposition

to

Plaintiffs'/Intervenor's motion in limine as it relates to the
grand jury proceedings of Deputy Phebus.
DISCUSSION
A. Evidence and Testimony Regarding Marquis Martin and/or the
Spur Station Shooting
9

Plaintiffs and Intervenor both assert that including
evidence and testimony regarding the prior acts of Martin and/or
the Spur Station shooting should be excluded because it is
irrelevant and highly prejudicial. While many of the arguments
advanced by Plaintiffs/Intervenor may have merit, the Court
agrees with Defendants' assertion that a ruling on this issue is
premature.

Magistrate Judge Roby has not ruled on whether Martin

will be added as a Defendant, and the resolution of that issue
has great bearing on whether Martin's actions should be included
in evidence. Moreover, it appears that, since discovery is still
ongoing, and Defendants have not deposed Martin, Defendants do
not even know what evidence and testimony, if any, they will
introduce at trial. Therefore, because further discovery may moot
this entire issue, as was the case in Lewis, Plaintiffs' motion
must be denied as premature inasmuch as it relates to any
evidence or testimony concerning the criminal background and/or
prior actions of Martin or the Spur Station shooting. Lewis, 2003
WL 21219870 at *2. Plaintiffs are free to re-assert their
arguments later in the proceedings if necessary.
B. Evidence and Testimony of the Grand Jury Proceeding and
Results Therefrom
Plaintiffs argue that evidence "that a grand jury returned a
no true bill" against Deputy Phebus is inadmissible. Fidelity &
10

Cas. Co. of N.Y., 234 F.2d at 428 (referencing New York Life Ins.
Co. v. Murdaugh, 94 F.2d 104, 107 (4th Cir. 1938) wherein the
court held that "it is generally the well settled rule of
evidence that records in criminal cases are not admissible in
evidence in civil cases although both grow out of the same
facts.") Defendants did not oppose this argument, and it
seemingly has merit; therefore, Plaintiffs' motion in limine will
be granted inasmuch as it requests the exclusion of any evidence
from the grand jury proceedings regarding Deputy Phebus or the
results of the proceedings.
C. Louisiana State Police Reports
Plaintiffs rely on Perkins to argue that the Louisiana State
Police report created from the investigations of the shooting at
the Spur Station and of the incident at issue in this matter is
inadmissible.

Plaintiffs'

reliance

on

Perkins

is

misplaced,

however, because the Louisiana Code of Evidence provision applied
in Perkins differs from the corollary provision in the Federal
Rules of Evidence.
R.

Evid.

803(8).

Compare La. Code Evid. Ann. art. 803 and Fed.
Louisiana

Code

of

Evidence

article

803

specifically prohibits from the public records exception: (1)
"Investigative

reports

by

police

and

other

law

enforcement

personnel" (2) "Investigative reports prepared by or for any

11

government, public office, or public agency when offered by that
or any other government, public office, or public agency in a
case in which it is a party," and (3) "Factual findings resulting
from investigation of a particular complaint, case, or incident,
including an investigation into the facts and circumstances on
which the present proceeding is based or an investigation into a
similar occurrence or occurrences." La. Code Evid. Ann. art. 803.
The Federal Rules of Evidence have no such exception. Under
the

Federal

Rules,

a

public

record

constitutes

a

hearsay

exception when the record relates to:
(i) the office's activities;
(ii) a matter observed while under a legal duty to
report, but not including, in a criminal case, a
matter observed by law-enforcement personnel; or
(iii) in a civil case or against the government in a
criminal 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).
In addition, the business records exception is applicable to
police reports.

Fed. R. Evid. 803(6) defines a business record

as:
A

record

of

an

act,

event,

condition,

opinion,

or

diagnosis if:
(A) the record was made at or near the time by--or from
information transmitted by--someone with knowledge;
12

(B) the record was kept in the course of a regularly
conducted
activity
of
a
business,
organization,
occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that
activity;
(D) all these conditions are shown by the testimony of
the custodian or another qualified witness, or by a
certification that complies with Rule 902(11) or (12)
or with a statute permitting certification; and
(E) neither the source of information nor the method or
circumstances of preparation indicate a lack of
trustworthiness.

Fed. R. Evid. 803(6). This rule does not specifically prohibit
the use of police reports under this exception as the Louisiana
Code of Evidence does. Compare Fed. R. Evid. 803(6) and La. Code
Evid. Ann. art. 803(6).
A determination of whether the police report or sections
therein will be excluded is unnecessary, however, because the
Court agrees with Defendants' and Intervenor's assertions that
the instant motion is premature. The parties must be given time
to complete discovery and determine what exhibits they will use
before the Court may determine if those exhibits are admissible.
Plaintiffs' motion is therefore denied as premature as it relates
to the Louisiana State Police report. Bearing in mind Federal
Rules of Evidence 803(6) and 803(8), discussed above, Plaintiffs
are free to re-assert their arguments later in the proceeding if
necessary.

13

Accordingly,
IT IS ORDERED that Plaintiffs' Motion in Limine (Rec. Doc.
56) is GRANTED only to the extent it seeks to exclude evidence
arising from the grand jury proceedings of Deputy Phebus.
IT IS FURTHER ORDERED that Plaintiffs' Motion in Limine is
DENIED AS PREMATURE in all other respects.

New Orleans, Louisiana this 7th day of August, 2013.

CARL J. BARBIER
UNITED STATES DISTRICT COURT

14