Amerson v. Waterford, Township of et al
Filing
90
ORDER granting in part in part 87 Amended Motion in Limine to Exclude Certain Evidence. Signed by District Judge Arthur J. Tarnow. (MLan)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOSHUA AMERSON,
Case No. 12-10375
Plaintiff,
SENIOR U.S. DISTRICT JUDGE
ARTHUR J. TARNOW
v.
M. STECHLY,
U.S. MAGISTRATE JUDGE
MICHAEL J. HLUCHANIUK
Defendant.
/
ORDER GRANTING IN PART PLAINTIFF’S AMENDED MOTION IN LIMINE TO
EXCLUDE VARIOUS EVIDENCE [87]
On February 23, 2015, Plaintiff filed a Motion in Limine to Exclude Various
Evidence [72]. Defendant filed a Response [76] on March 9, 2015. Due to
repeated adjournment of trial, the Court issued an Order [82] staying and
administratively closing the motion on September 17, 2015. On October 16, 2015,
Plaintiff filed an Amended Motion in Limine to Exclude Certain Evidence [87].
Because the Amended Motion [87] includes all arguments raised in the original
Motion [72], the Court finds it unnecessary to reopen the latter.
However,
Defendant’s response brief was filed before the amended motion, and thus does not
address various evidence challenged for the first time in the amended motion. The
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Court will postpone ruling on the admissibility of the newly challenged evidence.
See United States v. Luce, 713 F.2d 1236, 1239 (6th Cir. 1983) (acknowledging
that a pretrial ruling on a motion in limine is essentially an advisory ruling that
may be changed at trial, and that the court has discretion to decline to render such a
ruling).
I.
Lack of education and employment
Plaintiff seeks to exclude evidence that he has received no education since
he completed the ninth grade, as well as evidence that he has been unemployed
since the age of twelve. Defendant argues that this evidence may be relevant to
show that Plaintiff’s alleged embarrassment, humiliation, and/or mortification
arising from Defendant’s conduct actually arose, at least in part, from his lack of
education and employment. Any slim probative value this evidence might have is
substantially outweighed by the risk of unfair prejudice. The evidence is excluded.
II.
Drug use
Plaintiff seeks to exclude evidence of his use of marijuana and/or other
drugs. Defendant argues that this evidence is probative of Plaintiff’s “state of
mind” and his ability to accurately recall the incident.
He cites no binding
authority for support. The Court agrees that evidence of Plaintiff’s drug use
immediately before the incident or on the day of Plaintiff’s testimony would have
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significant probative value concerning his ability to accurately recall the incident.
Otherwise, evidence of Plaintiff’s drug use has no probative value, or so little that
it is substantially outweighed by the risk of unfair prejudice.
Evidence of
Plaintiff’s drug use is therefore excluded, with the exception of evidence that
Plaintiff used drugs immediately before the incident or on the day of his testimony.
III.
Incarcerations
Plaintiff seeks to exclude evidence of his periods of incarceration.
Defendant argues that the evidence is admissible to show that Plaintiff’s alleged
damages from the Defendant’s alleged use of force—including but not limited to
physical pain, shock, embarrassment, and loss of enjoyment—were caused by his
incarceration rather than by Defendant. The evidence is inadmissible because its
probative value is substantially outweighed by the risk of unfair prejudice.
IV.
Physical fights
Plaintiff seeks to exclude evidence of his prior involvement in physical
fights. Defendant argues that if Plaintiff was struck on the head during a fight,
evidenced of that blow is relevant to the issue of whether Plaintiff’s alleged
seizures were caused by Defendant kicking Plaintiff’s head. Evidence of (other)
incidents of trauma to Plaintiff’s head is relevant to the causation issue. This
includes evidence of blows to the head, even if sustained in a fight. However, the
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probative value of evidence of the context of a blow to the head (e.g., that it was
sustained during a fight) is likely to be substantially outweighed by the risk of
unfair prejudice.
Evidence that Plaintiff was struck in the head is therefore
admissible, but the Court will exclude evidence that Plaintiff was struck in the
head because he was involved in a fight, as well as evidence concerning the cause
or nature of such a fight.
V.
Criminal convictions
A.
2008 attempted breaking and entering with intent
Plaintiff seeks to exclude evidence of his 2008 conviction for attempted
breaking and entering a building with intent to commit a felony or larceny therein,
in violation of Michigan Compiled Laws § 750.110. Defendant points out that
Plaintiff was on probation for this conviction at the time of the alleged excessive
force.
Defendant argues that the conviction therefore supplied a motive for
Plaintiff to resist arrest, making it probative of whether Plaintiff had surrendered or
was still resistant at the time of the alleged force. However, there is no such
dispute. Defendant conceded at his deposition that Plaintiff was already lying
face-down on the ground at the time Defendant arrived at the scene of the arrest.
Defendant further conceded that Plaintiff allowed Defendant to handcuff him
without any resistance.
It is disputed whether Defendant proceeded to strike
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Plaintiff while he was bound and nonresistant—but not whether Plaintiff was
bound and nonresistant when Defendant struck him, if he did. The conviction is
not admissible to show motive to resist arrest or behavior consistent with such a
motive.
Defendant argues the conviction is admissible for impeachment purposes
under Federal Rule of Evidence (FRE) 609(a)(1)(A), which provides that a felony
conviction punishable by more than one year of imprisonment is admissible to
attack a witness’s character for truthfulness so long as it survives the Rule 403
balancing test. However, “crimes of violence or stealth have little bearing on a
witness’s character for truthfulness.” United States v. Washington, 702 F.3d 886,
893 (6th Cir. 2012). Since the attempted breaking and entering conviction is best
characterized as a crime of stealth, it has little probative value regarding Plaintiff’s
character for truthfulness. That probative value is substantially outweighed by the
risk of unfair prejudice.
B.
2011 receiving and concealing a stolen vehicle
Plaintiff also seeks to exclude evidence of his 2011 conviction for receiving
and concealing a stolen motor vehicle in violation of Michigan Compiled Laws §
750.5357(7). Defendant argues that Plaintiff’s incarceration as a result of this
conviction is relevant with regards to Plaintiff’s claimed damages for
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embarrassment, humiliation, and/or mortification. Evidence of the conviction,
however, is distinct from the evidence of incarceration, which is addressed
elsewhere. Defendant also emphasizes that the conviction is a felony conviction
punishable by more than one year of imprisonment, suggesting that Defendant
seeks to use the conviction for impeachment purposes under FRE 609(a)(1)(A).
However, “[r]eceiving and concealing a stolen motor vehicle is more like a crime
of stealth … than a crime of active misrepresentation.” United States v. Jones, 554
F. App’x 460, 470 (6th Cir. 2014).
Accordingly, this conviction has little
probative value regarding Plaintiff’s character for truthfulness. Washington, 702
F.3d at 893. That probative value is substantially outweighed by the risk of unfair
prejudice.
C.
2009 second-degree home invasion
Finally, Plaintiff seeks to exclude evidence of his 2009 conviction for
second-degree home invasion (arising from the incident underlying the instant
excessive force claim). Defendant argues the conviction is admissible both for
impeachment and for substantive purposes.
The Court holds the conviction
inadmissible for either purpose.
Defendant argues the conviction is admissible for impeachment purposes
under FRE 609(a)(1)(A). However, the conviction is better characterized as a
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crime of stealth than as a crime involving dishonesty. Accordingly, this conviction
has little probative value regarding Plaintiff’s character for truthfulness.
Washington, 702 F.3d at 893; see also People v. Raynes, 2011 WL 5248217, at *3
(Mich. Ct. App. Nov. 3, 2011) (unpublished) (applying Michigan Rules of
Evidence). That probative value is substantially outweighed by the risk of unfair
prejudice. The conviction is therefore not admissible to attack Plaintiff’s character
for truthfulness.
The question remains whether the conviction is admissible for substantive
purposes. Defendant argues that because the conviction resulted from the arrest
underlying Plaintiff’s excessive force claim, it provides necessary context for
evaluating
the
reasonableness
of
Defendant’s
actions.
However,
the
reasonableness of Defendant’s actions must be evaluated in light of what he knew
at the time—and he could not have known of a conviction that had yet to occur.
Bronzino v. Dunn, on which Defendant relies, is distinguishable; the Sixth Circuit
reasoned that because the arresting officer knew of Plaintiff’s prior convictions at
the time of arrest, the convictions were relevant to the arresting officer’s subjective
assessment of the threat posed by the plaintiff during the arrest. 558 F. App’x 613,
615 (6th Cir. 2014). Defendant’s other authority is an unpublished table decision
not binding on this Court. Green v. Distelhorst, 116 F.3d 1480, 1997 WL 351298
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(6th Cir. 1997) (Table Dec.). Further, Green is distinguishable to the extent it
found the conviction stemming from the arrest admissible to show motive to resist
arrest; as discussed above, such motive is not material here because there is no
dispute regarding whether Plaintiff was resisting arrest at the time of the alleged
force.
CONCLUSION
For the reasons stated above,
IT IS ORDERED that Plaintiff’s Amended Motion in Limine to Exclude
Certain Evidence [87] is GRANTED IN PART.
SO ORDERED.
Dated: October 22, 2015
s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
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