Thorington v. Townsend et al

Filing 52

ORDER Granting Plaintiff's 31 , 34 , 35 , 36 Motions in Limine, Denying Plaintiff's 37 Motion in Limine and Granting in Part Defendant's 32 Motion in Limine. Signed by District Judge Thomas L. Ludington. (KWin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
LARRY A. THORINGTON,
Plaintiff,

Case No. 18-10762
Honorable Thomas L. Ludington

vs.
STEVE TOWNSEND, MICHAEL SHEA,
Defendant.
____________________________/
ORDER GRANTING PLAINTIFF’S MOTIONS IN LIMINE, DENYING PLAINTIFF’S
MOTION IN LIMINE AND GRANTING IN PART DEFENDANT’S MOTION IN
LIMINE
On March 7, 2018, Plaintiff Larry A. Thorington filed a complaint against Sergeant Steve
Townsend and Sheriff Michael Shea of the Gladwin County Sheriff’s Department. ECF No. 1.
Count I alleges that Townsend violated the Fourth Amendment by using excessive force when
effectuating the arrest of Plaintiff, leading to injuries of Plaintiff’s left arm. Count II alleges that
Shea violated the Fourteenth Amendment because he was deliberately indifferent to Plaintiff’s
medical needs while Plaintiff was held at the Gladwin County Jail. After six months of
discovery, Defendants moved for summary judgment. ECF No. 17. Plaintiff responded and
Defendant replied. ECF Nos. 23, 27.
The Court granted Defendant Shea’s motion as Plaintiff had identified no evidence to
support his deliberate indifference claim. The Court denied Defendant Townsend’s motion as to
the excessive use of force claim because his testimony that Plaintiff did not resist arrest was
inconsistent with the theory he advanced in his motion summary judgment, namely that he only
used force sufficient to overcome resistance. A full factual summary can be found in that order.

ECF No. 30.
On April 12, 2019, Plaintiff filed five motions in limine (ECF Nos. 31, 34-37), and
Defendant filed one (ECF No. 32). On April 26, 2019, the parties responded to the motions. ECF
Nos. 40-45. The motions will be addressed in turn.
I.
Plaintiff’s first motion in limine (ECF No. 31) seeks to exclude the testimony of the
following defense witnesses: Kathryn Wong, Joshua Searfoss, and Ed Kratz.1 Plaintiff argues
that their testimony is irrelevant because they did not see Defendant handcuff Plaintiff. Pursuant
to Federal Rule of Evidence 401, “evidence is relevant if a) it has any tendency to make a fact
more or less probable than it would be without the evidence; and b) the fact is of consequence in
determining the action.” The threshold for relevance under Rule 401 is low. See United States v.
Lang, 717 Fed. Appx. 523, 530 (6th Cir. 2017).
The witnesses’ testimony will be excluded as irrelevant. Defendant argues that, although
Ms. Wong and Mr. Searfoss did not see the handcuffing, they witnessed Plaintiff’s conduct
before Defendant arrived at the scene, during which time Plaintiff was drunk and disorderly.
Defendant contends this is relevant information because the fact finder must consider the
“totality of the circumstances.” This is largely the same argument rejected in the order denying
summary judgment. Events that took place before Defendant’s arrival at the scene are not a part
of the relevant circumstances.
As explained in the order denying summary judgment, the only relevant circumstances
are the circumstances as they appeared to Townsend, because it is his conduct that is in issue.
Townsend did not witness the alleged conduct described by Ms. Wong and Mr. Searfoss because

1

Defendant concedes that Ed Kratz’s testimony is irrelevant and that he will not be called at trial.

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he was not yet at the scene. Even if he had witnessed the alleged conduct, that conduct would
only be relevant to support a belief that force was necessary to overcome resistance. But
Townsend testified that he used no force and encountered no resistance.
Defendant also argues that “the fact that Deputy Eaton was the first officer to grab
Plaintiff’s arms and place them behind his back provides a potential alternative explanation for
Plaintiff’s injuries.” Resp. at 8. Indeed it does. Sergeant Cuddie’s report states that he “observed
Deputy Eaton holding Larry Thorington in a control hold of Thorington’s left arm.” ECF No. 176. Presumably, Sgt. Cuddie will be called as a witness by Defendant Townsend. His absence as a
party, as well the absence of Deputy Eaton, is notable and likely will be to a jury. Because the
only relevant aspect of Ms. Wong and Mr. Searfoss’s testimony is duplicative of other evidence
in the record,2 Plaintiff’s motion will be granted.
II.
Plaintiff’s second motion in limine (ECF No. 34) seeks to exclude evidence of his
convictions for malicious destruction of personal property (unrelated to the incident at issue in
this case) and attempted disturbing the peace (relating to the arrest at issue in this case).
Defendant intends to introduce the attempted disturbing the peace conviction for the purpose of
impeachment “if Plaintiff attempts to downplay or deny his disorderly behavior on the date of his
arrest.” Defendant again argues that Plaintiff’s disorderly behavior prior to Defendant
Townsend’s arrival at the scene is relevant. As explained above and in the order denying
summary judgment, it is not relevant. Plaintiff’s motion will be granted.

2

Noticeably absent from the police report is any mention of Plaintiff assaulting Deputy Eaton. Defendant did not
produce any testimony from Deputy Eaton, the alleged victim of the assault, nor did they explain the absence of his
testimony. There is no evidence from the officers on the scene corroborating Ms. Wong and Mr. Searfoss’s version
of the events.

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III.
Plaintiff’s third motion in limine (ECF No. 35) seeks to exclude irrelevant medical
evidence “including evidence of plaintiff’s alleged alcoholism and use of alcohol, alleged
depression, and family history of Alzheimer’s disease, psychosis, and suicide.” Defendant
contends that Plaintiff’s drinking is relevant to show his state of mind and the potential threat he
posed to the officers and to evaluate the reasonableness of their response. Again, Defendant’s
primary defense theory (“reasonable force to overcome resistance”) is directly at odds with his
testimony that he used no force and encountered no resistance. Plaintiff’s intoxication is
irrelevant. Plaintiff’s motion will be granted.
IV.
Plaintiff’s fourth motion in limine (ECF No. 36) seeks to exclude evidence of a PPO
entered in favor of Ms. Wong against Plaintiff, and Plaintiff’s violation thereof. Unsurprisingly,
Defendant responds that he only intends to use the PPO as impeachment evidence if Plaintiff
attempts to downplay his disorderliness. The motion will be granted for the same reasons
explained above.
V.
Plaintiff’s fifth motion in limine (ECF No. 37) seeks to limit defense counsel’s argument
that Plaintiff was resisting arrest based upon Defendant Townsend’s testimony that Plaintiff did
not resist arrest. Defendant contends that his testimony was equivocal, and that in fact he was
unsure if Plaintiff was resisting Sgt. Cuddie. Defendant contends that, on the whole, his
deposition testimony is consistent with the notion that Plaintiff was offering “passive resistance,”
and that Defendant used only the force necessary to effectuate the arrest.
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A motion in limine is “any motion, whether made before or during trial, to exclude
anticipated prejudicial evidence before the evidence is actually offered.” Louzon v. Ford Motor
Co., 718 F.3d 556, 561 (6th Cir. 2013). A motion in limine is not, however, “a proper procedural
device[] for the wholesale disposition of theories or defenses.” Id. A more appropriate procedural
device would be a motion for summary judgment or a motion for judgment as a matter of law.
Suffice it to say that Defendant’s deposition testimony speaks for itself. Defendant will
be free to testify and/or argue that he used no more force than was necessary to effectuate the
arrest and that Plaintiff offered passive resistance. Of course, Defendant will then be subject to
impeachment by his unambiguous deposition testimony. The motion in limine will be denied.
VI.
Defendant’s motion in limine (ECF No. 32) seeks to exclude the following: 1) Gladwin
County Sheriff’s Officer’s Use of Force Policy or Townsend’s alleged deviation therefrom; 2)
evidence or argumentation alluding to a “blue wall” or “code of silence” amongst law
enforcement personnel; and 3) evidence referencing allegations of police misconduct in the
media.
Plaintiff’s response does not explain how the existence of the Gladwin County use for
force policy or its content makes any fact of consequence in this action more or less likely than it
would be without the evidence. In other words, he does not explain how the policy makes it any
more or less likely that Defendant used excessive force on Plaintiff. Even if the policy had some
tangential relevance, it will still be excluded because its relevance is substantially outweighed by
the danger of confusing the issues. See Fed. R. Evid. 403. The proper standard for evaluating the
objective reasonableness of the use of force is the prevailing Sixth Circuit law, not the Gladwin
County use of force policy. Providing two different standards will confuse the jury.
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Plaintiff cites no controlling precedent supporting the admission of the use of force
policy. Much of the district court precedent he cites is also inapposite. First, the primary question
at issue in this case is whether Defendant even engaged in the conduct he is accused of, not
whether that conduct was objectively reasonable. Moreover, in contrast to McDonald v. City of
Memphis, 2016 WL 8201168 at *4 (W.D. Tenn. 2016), no determination has been made by
Gladwin County’s internal affairs department (or by anyone else) that Defendant violated the use
of force policy. The motion in limine will be granted as to the use of force policy.
Plaintiff concedes he will not refer to the blue wall or code of silence, nor will he refer to
allegations of police conduct in the media, other than in voir dire. These are appropriate subjects
for voir dire to ascertain whether potential jurors have any pre-existing biases for or against
police officers that would impact their ability to impartially decide the facts of the case. The
motion in limine will be granted in part.
VII.
Accordingly, it is ORDERED that Plaintiff’s motions in limine (ECF Nos. 31, 34, 35,
36) are GRANTED, and that Plaintiff’s motion in limine (ECF No. 37) is DENIED.
It is further ORDERED that Defendant’s motion in limine, ECF No. 32, is GRANTED
in part as explained above.
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: May 8, 2019

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