Wheeler v. Billingslea et al

Filing 45

ORDER denying as moot 29 Motion in Limine; denying 30 Motion in Limine; denying 31 Motion in Limine requesting sanctions; granting in part and denying in part 32 Motion in Limine. Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DAMIAN WHEELER,
Plaintiff,
Case No. 18-CV-10346
HON. GEORGE CARAM STEEH

vs.
RICHARD BILLINGSLEA,
and HAKEEM PATTERSON,
Defendants.
__________________________/

ORDER RE PARTIES’ CROSS-MOTIONS
IN LIMINE (ECF NO. 29, 30, 31, 32)
On August 5, 2019, the court held a hearing on the parties’ crossmotions in limine. For the reasons stated on the record, IT IS ORDERED
that:
A.

Plaintiff’s motion in limine to preclude Defendants’ proposed

expert Steven Ashley from testifying (ECF No. 29) is DENIED AS MOOT
per Defendants’ stipulation that they will not be calling him as a witness.
B.

Plaintiff’s motion in limine to prohibit statements, arguments,

testimony, and introduction of evidence of plaintiff’s social media, police
reports, activity logs, schedules, notes, documentation from date of incident
and alleged investigation by City of Detroit including content of video and

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audio tapes and recorded statements of Plaintiff and Rondell Miller (ECF
No. 30) is DENIED.
C.

Plaintiff’s motion in limine requesting sanctions for spoliation of

evidence including an adverse inference instruction (ECF No. 31) is
DENIED WITHOUT PREJUDICE. The court notes that the record is not
fully developed as to the handling of the video evidence, and the court may
revisit its decision depending on how the proofs are admitted at trial, and
may require an evidentiary hearing.
D.

Defendants’ motion in limine (ECF No. 32) is GRANTED IN

PART and DENIED IN PART as follows:
1.

Defendants’ motion in limine to exclude reference to Officer

representation and indemnification is GRANTED.
2.

Defendants’ motion in limine to exclude reference to newspaper

articles and other media reports or television broadcasts regarding
unrelated incidents involving allegations of police misconduct, consent
decree, or police/public relations or perceptions generally is TAKEN
UNDER ADVISEMENT pending the parties working together to tailor the
television broadcast video so that the evidence pertaining solely to the
issue of identification may be presented, but the prejudicial nature of the
claimed excessive force in other incidents be sanitized. It is possible that
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Defendants’ suggestion that a screen shot from the television broadcast be
used may satisfy the court’s concerns that while the issue of identification is
at stake, the prejudicial nature of the broadcasts is very high.
3.

Defendants’ motion in limine to exclude reference to past or

subsequent officer misconduct, citizen complaints, disciplinary history,
misconduct investigations and administrative, legislative or judicial hearing
transcripts or recordings, and findings or judgments is TAKEN UNDER
ADVISEMENT. The court recognizes that some evidence may be relevant
under Federal Rule of Evidence 404(b), but the risk is great that jurors will
improperly assess this evidence to show that Defendants acted in
conformity with their alleged past conduct. In reaching a final determination
as to whether the evidence is admissible, the court will consider a possible
curative instruction, and at the same time, the court will entertain proposals
for tailoring the evidence to cover permissible reasons for admitting the
evidence under Rule 404(b), while trying to minimize the prejudicial effect.
4.

Defendants’ motion in limine to exclude reference to race

relations and law enforcement is TAKEN UNDER ADVISEMENT.
5.

Defendants’ motion in limine regarding statements to law

enforcement is TAKEN UNDER ADVISEMENT.

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6.

Defendants’ motion in limine regarding the location of Plaintiff’s

arrest is DENIED WITHOUT PREJUDICE.
7.

Defendants’ motion in limine to exclude expert witness

testimony is DENIED as Plaintiff’s treating physicians may testify without
producing an expert report, but specific objections as to the scope of that
testimony may be addressed at trial depending on how the proofs are
presented.
8.

Defendants’ motion in limine to exclude punitive damages is

DENIED WITHOUT PREJUDICE.
9.

Defendants’ motion in limine regarding the golden rule is

DENIED AS MOOT per Plaintiff’s stipulation.
10.

Defendants’ motion in limine regarding the value or importance

of constitutional rights is DENIED WITHOUT PREJUDICE.
11.

Defendants’ motion in limine to exclude Defendant Officer

Richard Billingslea’s subsequent conviction for a felony is GRANTED IN
PART and DENIED IN PART in that it may be used only as impeachment
evidence under Federal Rule of Evidence 609, conditioned on proof that
Defendant has been convicted of a felony and not a misdemeanor.
12.

Defendants’ motion in limine to exclude argument about a

police “code of silence” is GRANTED WITHOUT PREJUDICE.
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13.

Defendants’ motion in limine to exclude reference to video evidence

as having been disposed of is DENIED WITHOUT PREJUDICE.
IT IS SO ORDERED.
Dated: September 5, 2019
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
September 5, 2019, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk

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