Reed v. Lieurance et al
Filing
169
ORDER granting in part and denying in part 159 Motion in Limine; granting in part and denying in part 161 Motion in Limine (SEE ORDER FOR COMPLETE DETAILS) Signed by Judge Donald W. Molloy on 12/21/2017. (ELL)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BUTTE DIVISION
FILED
DEC 2 1 2017
Clef!<, y.s District Court
D1stnct Of Montana
Missoula
CV 13-17-BU-DWM
ANTHONY PATRICK REED,
Plaintiff,
ORDER
vs.
DOUG LIEURANCE, in his individual
capacity; BRIAN GOOTKIN, in his
individual capacity; GALLATIN
COUNTY SHERIFF'S OFFICE, a
department of Gallatin County; and
GALLATIN COUNTY,
Defendants.
In May 2012, Defendant Doug Lieurance ("Deputy Lieurance" ) cited
Plaintiff Anthony Reed ("Reed") for obstructing a bison herding operation outside
of Yellowstone National Park ("the Park"). Reed is a volunteer with the Buffalo
Field Campaign ("Campaign"), a § 501 (c)(3) non-profit conservation organization
that sends volunteers to observe and document the herding or "hazing" of bison in
or near the Park. Reed v. Lieurance, 863 F.3d 1196, 1201 (9th Cir. 2017). Reed
brought this action pursuant to 42 U.S.C. § 1983, alleging that Deputy Lieurance's
conduct violated his First and Fourth Amendment rights and related Montana
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constitutional rights, and that Gallatin County, the Gallatin County Sheriffs
Office, and Sheriff Brian Gootkin failed to train officers on Montana's obstruction
statute and the First and Fourth Amendments. (Doc. 1.)
Trial is set for February 20, 2018. (Doc. 141.) Both parties have filed
motions in limine. (See Docs. 159, 161.) Those motions are granted-in-part and
denied-in-part as discussed below.
I.
Reed's Motions in Limine (Doc. 159)
Reed first seeks to bar the defendants from presenting evidence at trial
regarding Reed's criminal record other than the May 23, 2012 incident at issue.
That motion is GRANTED, subject to Reed himself"opening the door." See Fed.
R. Evid. 608(a), 609, 403.
Reed further asks the defendants be precluded from submitting undisclosed
expert testimony at trial. The defendants did not respond to this request. Cf L.R.
7.l(d)(l)(B)(ii) (deeming the failure to file a response brief as an indication that
the motion is well-taken). That motion is GRANTED. See Yeti by Molly, Ltd. v.
Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001).
Reed also asks that the defendants be precluded from presenting or
soliciting any evidence or representations during trial of crimes, wrongs, or other
bad acts by individuals that may have scared horses, bison, or riders during haze
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operations in the past. That motion is DENIED insofar as such evidence is
relevant to establishing Reed's intent and Deputy Lieurance's knowledge of that
intent under the Montana obstruction statute. Fed. R. Evid. 404(b )(2); see Reed,
863 F.3d at 1206. Reed may renew his objection at trial. See Fed. R. Evid.
103(b).
Reed further requests that the defendants not be allowed to present any
evidence at trial regarding training that occurred prior to September 18, 2006 or
after May 23, 2012. That motion is DENIED subject to renewal at trial. See Fed.
R. Evid. 103(b); Cech v. State, 604 P .2d 97, 101-02 (Mont. 1979) (affirming
admission of evidence of subsequent remedial measures as relevant to feasibility
of remedy and possible impeachment).
Finally, Reed invokes Rule 615 of the Federal Rules of Evidence and asks
that lay witnesses who are not parties be excluded from the courtroom during trial.
The defendants did not oppose this request. Cf L.R. 7.l(d)(l)(B)(ii). That motion
is GRANTED. Additionally, counsel cannot disclose testimony or tell excluded
witnesses about what happened in court other than in the ordinary preparation of
witnesses. Counsel are also obligated to admonish witnesses not to blog, tweet,
text, email, or communicate about the case or read any such items on the internet
to prepare for testimony.
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II.
The Defendants' Motions in Limine (Doc. 161)
The defendants seek to exclude any reference to insurance and settlement
negotiations. Because Reed does not identify a situation in which such evidence
may be properly admitted in the context of this case, those motions are
GRANTED. See Fed. R. Evid. 408, 411.
The defendants also seek to prohibit Reed and his companion Kasi
Craddock-Crocker from testifying where the bison hazing operation crossed
Highway 191 on May 23, 2012. The defendants insist testimony on this point
would be improper because Reed and Craddock-Crocker lack personal knowledge.
See Fed. R. Evid. 602. The defendants' request is premature. As the defendant's
own motion indicates, Reed has knowledge of where he believed the haze
occurred, provided both by Tierney and relayed to him over the radio. (See Doc.
162 at 6-8.) The admissibility of particular statements will be addressed in the
context of trial. The defendants' motion to exclude this testimony is DENIED,
subject to renewal in the context of trial. See Fed. R. Evid. 103(b).
Finally, the defendants seek to exclude all evidence relating to the prior
trial, the Ninth Circuit appeal, and the Ninth Circuit's decision on appeal. (Doc.
162 at 2-4.) Taking the opposite extreme, Reed insists that all factual decisions
and legal issues are "the law of the case" and admissible as substantive evidence.
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(Doc. 167 at 5-12.) The "evidence" at issue can be placed in three categories:
(1) previous factual determinations, (2) previous legal determinations, and (3)
previous evidentiary rulings. As to the first, Reed is correct that those matters
"disposed of by [the Ninth Circuit's] decree" binds this Court. Visciotti v. Martel,
862 F.3d 749, 763 (9th Cir. 2016). However, the crux of the Ninth Circuit's
decision on appeal is that factual disputes warrant a determination of the
substantive matters by ajury. See Reed, 863 F.3d at 1206-07, 1211-12 (outlining
the myriad factual conclusions a jury could draw as to the constitutional violations
alleged). Because the Ninth Circuit did not definitively find these facts, the very
premise of Reed's argument fails. Use of the existing factual record and testimony
is limited to impeachment and the rules governing the admission of prior
inconsistent statements. See Fed. R. Evid. 801(d)(l)(A). To the extent Reed
attempts to argue Rule 801(d)(l)(A) opens the door to any and all prior testimony,
that argument is foreclosed by the very language of the rule which requires an
inconsistency before the prior statement can be introduced.
As to the second, Reed once again correctly identifies this Court's
obligation to follow the legal conclusions of the Ninth Circuit. Viscotti, 862 F.3d
at 763. The Court intends to do so. However, these legal conclusions, like their
factual cousins, may be cabined by the procedural posture in which they were
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made. Insofar as Reed plans to pursue certain jury instructions based on appellate
decisions in this case, those specific arguments will be addressed in the context of
settling jury instructions.
As to the third, the parties dispute the admissibility of pretrial and appellate
rulings in this case. Although those rulings have governed and will continue to
govern the adjudication of this matter, neither the rulings themselves nor the
context in which they were made is relevant to the disposition of this matter.
Accordingly, the parties shall not reference the previous rulings, trial, or appeal of
this case. If necessary, prior proceedings in the case shall be referred to as just
that, a "prior proceeding." Accordingly, the defendants' motion is GRANTED to
the extent outlined above. Further specific objections must be raised at trial.
IT IS SO ORDERED.
DATED
this~ay of December, 2017.
o oy, District Judge
United S/1es .strict Court
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