White v United States of America et al

Filing 147

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the plaintiff's motion for new trial or to alter or amend judgment (#136) is DENIED. Signed by District Judge Stephen N. Limbaugh, Jr on 4/8/2019. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
HOPE ANGELIC WHITE, et al.

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Plaintiffs,
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v.
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THE UNITED STATES OF AMERICA, )
et al.,
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Defendants,
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No. 4:15CV1252 SNLJ

MEMORANDUM AND ORDER
Plaintiff Hope Angelic White brought this action individually and in her capacity
as personal representative for the Estate of her decedent, Myron Pollard, against
defendants the United States of America and Bernard Hansen, an agent with the United
States Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”). The litigation
pertained to defendant Hansen’s fatal shooting of Pollard on August 29, 2012. Plaintiff,
as personal representative of the estate of Pollard, brought a claim under Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), for the use of
excessive force against Pollard, which was tried before a jury July 23-27, 2018. The jury
found in favor of defendant. Plaintiff also presented a claim under the Federal Tort
Claims Act (“FTCA”) for wrongful death, which was tried simultaneously before this
Court. The Court found in favor of defendant on the FTCA claim.
Plaintiff has filed a motion for new trial on the Bivens claim judgment. Defendant
filed a response in opposition, but plaintiff did not file a reply. Plaintiff invokes Federal

Rules of Evidence 59(d), 60(b)(3), and 60(b)(6) as her bases for relief. It also appears
plaintiff relies on Rule 59(a).
I.

Legal Standard
Rule 59(a)(1) permits the district court to grant a new trial after a jury trial “for

any reason for which a new trial has heretofore been granted in an action at law in federal
court.” Fed. R. Civ. P. 59(a)(1). Generally, there are two grounds for a ordering a new
trial: (1) the verdict was unsupported by the evidence; or (2) prejudicial error was
committed during the trial. See Hannah v. Haskins, 612 F.2d 373, 376 (8th Cir. 1980). A
new trial should only be granted to “avoid a miscarriage of justice.” McKnight v. Johnson
Controls, Inc., 36 F.3d 1396, 1400 (8th Cir. 1994). “When the basis of the motion for a
new trial is that the jury’s verdict is against the weight of the evidence, the district court’s
denial of the motion is virtually unassailable on appeal.” Lincoln Composites, Inc v.
Firetrace USA, LLC, 825 F.3d 453, 459 (8th Cir. 2016) (internal quotations omitted).
When considering a motion for new trial on weight of the evidence grounds, the district
court “can disturb a jury verdict only to prevent a miscarriage of justice,” and the court
must specifically find that the verdict was against the “great, clear, or overwhelming
weight of the evidence.” Frumkin v. Mayo Clinic, 965 F.2d 620, 624 (8th Cir. 1992). The
district court should not substitute its judgment for that of the jury; it should only reject a
jury’s verdict when “after a review of all the evidence giving full respect to the jury’s
verdict, the court is left with a definite and firm conviction that the jury has erred.” Ryan
v. McDonough Power Equipment, Inc., 734 F.2d 385, 387 (8th Cir. 1984). A motion for
new trial based on evidentiary errors is only warranted where those errors affected the

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movant’s substantial rights and “would be likely to produce a different result.” Pointer v.
DART, 417 F.3d 819, 822 (8th Cir. 2005).
“Rule 59(d) is designed primarily to correct immediately apparent injustices
occasioned by jury verdicts.” Goldsmith v. Diamond Shamrock Corp., 767 F.2d 411, 415
(8th Cir. 1985) (citing Tarlton v. Exxon, 688 F.2d 973, 978-79 (5th Cir. 1982). The
district court may only grant a new trial “when the first trial resulted in a miscarriage of
justice, through a verdict against the weight of the evidence … or legal errors at trial.”
Trickey v. Kaman Indus. Techs. Corp., 705 F.3d 788, 807 (8th Cir. 2013). The legal or
evidentiary errors must be so prejudicial that they “likely affected the jury’s verdict.” Id.
“Such motions cannot be used to introduce new evidence, tender new legal theories, or
raise arguments which could have been offered or raised prior to entry of judgment.” Id.
Rule 59(e) motions to alter or amend judgment “serve the limited function of
correcting manifest errors of law or fact or to present newly discovered evidence.”
United States v. Metropolitan St. Louis Sewer Dist., 440 F.3d 930, 933 (8th Cir. 2006)
(internal quotations omitted).
“Rule 60(b) provides for extraordinary relief which may be granted only upon an
adequate showing of exceptional circumstances.” Schwieger v. Farm Bureau Ins. Co. of
Neb., 207 F.3d 480, 487 (8th Cir. 2000) (internal quotations omitted). It is not meant to
be a vehicle for seeking reconsideration of arguments that were previously briefed by the
court. Broadway v. Norris, 193 F.3d 987, 990 (8th Cir. 1999). In order to prevail under
Rule 60(b)(3), “the movant must show, with clear and convincing evidence, that the
opposing party engaged in fraud or misrepresentation that prevented the movant from

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fully and fairly presenting its case.” Murphy v. Mo. Dep’t of Corr., 506 F.3d 1111, 1117
(8th Cir. 2007).
Rule 60(b)(6) relief is available only “where exceptional circumstances have
denied the moving party a full and fair opportunity to litigate his claim and have
prevented the moving party from receiving adequate redress.” Id.
II.

Discussion
Plaintiff makes several arguments in support of her motion for new trial.
First, plaintiff argues the jury lacked sufficient evidence to find in favor of

defendant and that the verdict was against the weight of the evidence. Specifically,
plaintiff argues the jury could not have properly concluded that Hansen’s use of deadly
force against Pollard was reasonable. Plaintiff’s primary argument seems to be that
Hansen fired three shots at the suspect’s car after the crash, when it was no longer a threat
to Hansen or to anyone else. As this Court explained in its memorandum and order
disposing of plaintiff’s FTCA claim (#145 at 29-30), the evidence supports that Hansen’s
use of deadly force was reasonable.
Second, plaintiff argues that destruction of the master servers upon which the
videos were recorded constituted misconduct on the part of defendants and prejudiced
plaintiff. It appears plaintiff seeks reconsideration of this Court’s order denying
plaintiff’s motion for sanctions on this point. This matter was briefed three times before
trial, and the Court declines to reconsider the matter. To the extent that plaintiff argues
that the jury’s decision, during deliberations, to watch the video that lacked audio
somehow justifies a new trial, the Court disagrees. The jury viewed all of the videos

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several times during the trial, and the Court cannot speculate as to the jury’s reasons for
requesting the video it chose. The jury was free to watch any of the videos and may have
requested additional videos if the jury saw fit to do so. Plaintiff has failed to identify any
reason for granting a new trial with respect to these issues.
Next, plaintiff contends that the Court improperly allowed testimony as to
Pollard’s acquiescence to the home invasion and threats made by others around him.
Plaintiff states that the only perceived threat to Hansen was the vehicle, so testimony that
the suspects intended to kill the undercover agent or that they were otherwise dangerous
was prejudicial. The Court disagrees that the evidence was not relevant to Hansen’s
perceived threat: knowing that the car’s driver intended to murder people later that day
was certainly relevant to Hansen’s split-second judgment. There is also no evidence to
support, as plaintiff suggests, that it was untrue that the vehicle’s occupants agreed to go
through with the home invasion. Further, the Court instructed the jury to disregard the
undercover agent’s statement that each person in the vehicle was prepared to go forward
with the home invasion.
Finally, although plaintiff agrees that Creighton’s felony conviction was relevant
to his credibility, plaintiff objects to the evidence of Creighton’s gun-related offense
because it alerted the jury to the fact that a gun was in the vehicle at the time of the
incident. Plaintiffs states that she would have agreed to a stipulation of Creighton’s
felony conviction. Defense counsel agreed to limit evidence regarding Creighton’s
convictions to the fact that he had pleaded guilty to two specific crimes without tying
them to this case and without going into details about the charges. Counsel asked him

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whether he had pleaded guilty to conspiracy to commit a Hobbs Act robbery and
possession of a firearm in furtherance of a violent crime. Counsel said nothing to tie the
crimes to this particular event. Plaintiff’s counsel, not defense counsel, asked Creighton
whether he was the driver of a vehicle in which Pollard was a passenger, if the car
accelerated at a high rate of speed, and if there was an intent to hit an officer. The Court
disagrees that defense counsel overstepped the bounds of the Court’s ruling. No
statement by defense counsel included that firearms were in the vehicle at the time of the
incident. The Court properly allowed cross-examination for impeachment purposes.
Accordingly,
IT IS HEREBY ORDERED that the plaintiff’s motion for new trial or to alter or
amend judgment (#136) is DENIED.

Dated this 8th day of April, 2019.
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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