Brizendine v. Omaha, City of et al

Filing 97

ORDER granting in part and denying in part 92 defendants' Motion in Limine. Ordered by Magistrate Judge F. A. Gossett. (CLS, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA CHARLES BRIZENDINE, Plaintiff, vs. CITY OF OMAHA and OMAHA POLICE OFFICER FRANK PLATT, individually and in his official capacity, Defendants. ) ) ) ) ) ) ) ) ) ) )

8:07CV277

MEMORANDUM AND ORDER

T h i s matter is before the magistrate judge by consent of the parties on the defendants' M o tio n in Limine (Doc. 92). Citing Rules 401, 402 and 403 of the Federal Rules of Evidence, the defendants ask th a t the court prohibiting the plaintiff from offering or eliciting evidence or commentary on th e following topics: 1 . T h e Criminal Case involving Plaintiff, State v. Charles Brizendine, D o u g las County Court Case No. CR06 17580 (the Criminal Case); 2 . The findings, impressions or opinions of the trial judge, attorneys, or any w itn e ss e s, relating to probable cause, motion(s) to suppress evidence, m o tio n s to continue, judgment, dismissal, or any other such finding, im p re ss io n , or opinion regarding the ultimate disposition of the Criminal C a se ; 3 . The proceedings in, or ultimate resolution of, the Criminal Case; 4 . The procedural process resulting in final disposition of the Criminal Case; 5 . O f f ic e r Frank Platt's employment history, history of disciplinary actions, o r any other personnel or human resources, or employment record of any k in d ;

6 . T h e phrase "racial profiling" or any form or derivative thereof, including b u t not limited to "race-based prosecution", "race-based law enforcement" o r "race-based investigation"; 7 . A n y reference to NEB.REV.STAT. § 28-1202 1 ; and 8 . Insurance for any liability of any Defendant. P la in tif f did not file a response to the motion in limine, and the court has considered th e motion in conjunction with the Order on Final Pretrial Conference and the parties' trial b rie f s. The Order on Final Pretrial Conference supersedes all pleadings and controls the s u b s e q u e n t course of the action, see Rockwell Intern. Corp. v. United States, 549 U.S. 457, 4 7 4 (2007), and may be modified "only to prevent manifest injustice," Fed. R. Civ. P. 16(e). T h e issues to be resolved at trial are 1. W h e th e r any act of Frank Platt deprived the plaintiff of his rights under the Fourth a n d Fourteenth Amendments to the U.S. Constitution by a. a rre stin g the plaintiff without probable cause;

The version of Neb. Rev. Stat. § 28-1202 in effect when plaintiff was arrested provided, in relevant part: 28-1202 Carrying concealed weapon; penalty; affirmative defense. (1)(a) Except as otherwise provided in this section, any person who carries a weapon or weapons concealed on or about his or her person such as a revolver [or] pistol ..., or any other deadly weapon commits the offense of carrying a concealed weapon. (b) It is an affirmative defense that the defendant was engaged in any lawful business, calling, or employment at the time he or she was carrying any weapon or weapons and the circumstances in which such person was placed at the time were such as to justify a prudent person in carrying teh weapon or weapons for the defense of his or her person, property, or family. (2) This section does not apply to a person who is the holder of a valid permit issued under the Concealed Handgun Permit Act if the concealed weapon the defendant is carrying is a handgun as defined in section 69-2429. (3) Carrying a concealed weapon is a Class I misdemeanor. (4) In the case of a second or subsequent conviction under this section, carrying a concealed weapon is a Class IV felony. Neb. Rev. Stat. §28-1202 (Reissue 2008).

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b . u sin g excessive force against the plaintiff; or c. u n re a s o n a b ly searching the plaintiff's car. 2. If defendant Platt did violate the plaintiff's constitutional rights, a. w h e th e r the deprivation was proximately caused by a policy, practice or c u sto m of the City of Omaha; b . t h e damages, if any, proximately caused by the deprivation (specifically, atto rn e y's fees incurred by the plaintiff in the Criminal Case); c . w h e th e r the act or actions proximately causing the deprivation were performed m a licio u sly or with reckless disregard for plaintiff's rights, so as to entitle p la in tif f to recover punitive damages; and d . w h e th e r plaintiff is entitled to recover attorney fees under 42 U.S.C. § 1988. U n d e r Fed. R. Evid. 402, with certain exceptions, all relevant evidence 2 is admissible a t trial. Evidence which is not relevant is inadmissible. Rule 403 provides that relevant e v id e n c e may be excluded "if its probative value is substantially outweighed by the danger o f unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of u n d u e delay, waste of time, or needless presentation of cumulative evidence." I find that the defendants' motion should be granted in part. A s to the resolution of the state court Criminal Case, the plaintiff will be allowed to te s ti f y in his case in chief that he was charged with carrying a concealed weapon, that the c a se was dismissed, that the weapon was returned to him, and the amount of attorney's fees

The term "relevant evidence" is defined as, "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401.

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h e incurred as the result of the filing of the Criminal Case. He may not comment beyond that f a c tu a l information in his opening statement or in his case in chief. The defendants' objections to potential references to Neb. Rev. Stat. § 28-1202 are not sp e c if ica lly discussed in their brief. The plaintiff has argued throughout the course of this litig a tio n that he had a license or permit to carry the handgun in question. The motion in lim in e is denied as to this topic, without prejudice to the defendants renewing the motion p rio r to the commencement of trial. P u r s u a n t to Fed. R. Evid. 402 and 403, the court finds that plaintiff may not comment in opening statement or offer evidence in his case in chief as to: · T h e findings, impressions or opinions of the trial judge, attorneys, or any witnesses, re la tin g to probable cause, motion(s) to suppress evidence, motions to continue, ju d g m e n t, dismissal, or any other such finding, impression, or opinion regarding the u ltim a te disposition of the Criminal Case; O f f ic e r Frank Platt's employment history, history of disciplinary actions, or any other p e rs o n n e l or human resources, or employment record of any kind; T h e phrase "racial profiling" or any form or derivative thereof, including but not lim ite d to "race-based prosecution", "race-based law enforcement" or "race-based in v e s tig a tio n ." T h e motion in limine is also granted as to the topic of liability insurance. See Fed. R. E v id . 411. T h e se rulings apply only to opening statements and the plaintiff's case in chief. The p la in tif f is not precluded from inquiring on any of these topics on cross-examination of d e f e n s e witnesses or in his rebuttal case, if the defendant "opens the door" to the inquiry. -4-

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I T IS SO ORDERED. D A T E D November 2, 2009. B Y THE COURT: s / F.A. Gossett U n ite d States Magistrate Judge

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