Retz v. Turnball et al
Filing
103
MEMORANDUM AND ORDER - IT IS ORDERED: Defendants' Motion in Limine to Exclude any Testimony or Reference to Contempt of Cop (Filing No. 61 ) is granted. Plaintiff's Motion in Limine Requesting Preclusion of Evidence Regarding Prior Conv ictions (Filing No. 66 ) is granted. Defendants' Motion asking the Court to accept certain evidence filed with the Court as if it had been offered in an evidentiary hearing (Filing No. 83 ) is granted. Plaintiff's Motion asking the Court to accept certain evidence filed with the Court as if it had been offered in an evidentiary hearing (Filing No. 86 ) is granted. Ordered by Chief Judge Laurie Smith Camp. (TCL )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DANIEL RETZ,
Plaintiff,
v.
DETECTIVE WILLIAM SEATON, in
his individual and official capacity,
and THE CITY OF OMAHA,
NEBRASKA,
Defendants.
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CASE NO. 8:11CV169
MEMORANDUM
AND ORDER
This matter is before the Court on (1) the Defendants’ Motion in Limine to Exclude
any Testimony or Reference to Contempt of Cop (Filing No. 61) and Defendants’ Motion
asking that the Court accept as evidence certain exhibits filed with the Court as if they had
been offered at an evidentiary hearing (Filing No. 83); and (2) the Plaintiff’s Motion in
Limine Requesting Preclusion of Evidence Regarding Prior Convictions (Filing No. 66) and
the Plaintiff’s Motion asking that the Court accept as evidence certain exhibits filed with the
Court as if they had been offered at an evidentiary hearing (Filing No. 86).
STANDARDS OF REVIEW
Fed. R. Evid. 702 provides:
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help
the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of
the case.
Fed. R. Evid. 403 provides:
The court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.
Fed. R. Evid. 609(2) provides in relevant part:
for any crime regardless of the punishment, the evidence must be admitted
if the court can readily determine that establishing the elements of the crime
required proving–or the witness’s admitting–a dishonest act or false
statement.
DISCUSSION
This case, scheduled to begin trial to a jury on April 16, 2013, concerns a claim by
Plaintiff Daniel E. Retz (“Retz”) that Defendant William Seaton (“Seaton”), an officer with
the Omaha Police Department, used excessive force against Retz under color of law and
in violation of the Fourth Amendment to the United States Constitution and 42 U.S.C. §
1983, causing injury to Retz. (Am. Compl., Count I, Filing No. 4.)
I. Defendants’ Motion in Limine to Exclude Testimony about “Contempt of Cop”
In Royster v. Nichols, 698 F.3d 681,691 (8th Cir. 2012), the Eighth Circuit reiterated
the standard to be applied when considering claims of excessive use of force under the
Fourth Amendment:
All claims that law enforcement officers have used excessive force, whether
deadly or not, in the course of an arrest, investigatory stop, or other seizure
are analyzed under the Fourth Amendment's objective reasonableness
standard.” Nance v. Sammis, 586 F.3d 604, 609–10 (8th Cir.2009). “Not
every push or shove violates the Fourth Amendment, but force is excessive
when the officers' actions are not objectively reasonable in light of the facts
and circumstances confronting them.” Rohrbough v. Hall, 586 F.3d 582, 585
(8th Cir.2009) (quotations, alteration, and citation omitted). “The key question
is whether the officers' actions are objectively reasonable in light of the facts
and circumstances confronting them, without regard to their underlying intent
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or motivation.” Nance, 586 F.3d at 610 (quotations and citation omitted).
“Objective reasonableness depends on the facts and circumstances of the
case, including the severity of the crime at issue, whether the suspect poses
an immediate threat to the safety of the officers or others, and whether he is
actively resisting arrest or attempting to evade arrest by flight.” Rohrbough,
586 F.3d at 586 (quotations and citations omitted).
Defendants want to preclude Retz from offering expert testimony about a theory or
phenomenon that both parties, and Retz’s expert D.P. Van Blaricom, refer to as “contempt
of cop.” The theory or phenomenon as described by Van Blaricom suggests that when an
individual is rude to a police officer, displaying disrespect, contempt, or poor attitude, the
officer may want to show “who’s boss,” effecting an arbitrary arrest, detention, or use of
force.
Whether or not Retz’s expert used any valid methodology to support his theory, it
will not help the jury determine a fact in issue. The theory of “contempt of cop” suggests
a subjective motive for an officer’s action, i.e., a desire for retaliation and show of power.
The officer’s motive is not relevant, however. The question is whether the officer’s actions
were objectively reasonable, taking into consideration all the facts and circumstances of
the case.
If sufficient foundation is presented to demonstrate that Retz’s expert has the
knowledge and skill to testify about law enforcement customs, practices, and training
relevant to the objective reasonableness of Seaton’s use-of-force, and if the expert’s report
adequately discloses such opinions, then he may be allowed to express them. He will be
precluded, in limine, however, from offering opinions about the “contempt of cop” theory
to suggest a motive for Seaton’s conduct.
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II. Plaintiff’s Motion in Limine Requesting Preclusion of Evidence Regarding Prior
Convictions
Retz asks the Court to preclude the Defendants, in limine, from offering evidence
of his prior convictions, other than his 2007 conviction for false reporting, which Retz
acknowledges can be used for impeachment purposes. The Defendants have responded
that they have no intention of offering evidence of Retz’s other convictions. Accordingly,
his motion will be granted.
III. The parties’ Motions asking the Court to accept certain evidence filed with the
Court as if it had been offered in an evidentiary hearing
Both parties have asked the Court to accept and consider certain evidentiary
materials they filed (Filing Nos. 62 and 85) as if such exhibits had been offered at an
evidentiary hearing. Neither party objected to the opposing party’s motion, and both
motions will be granted.
IT IS ORDERED:
1.
Defendants’ Motion in Limine to Exclude any Testimony or Reference to
Contempt of Cop (Filing No. 61) is granted;
2.
Plaintiff’s Motion in Limine Requesting Preclusion of Evidence Regarding
Prior Convictions (Filing No. 66) is granted;
3.
Defendants’ Motion asking the Court to accept certain evidence filed with the
Court as if it had been offered in an evidentiary hearing (Filing No. 83) is
granted; and
4.
Plaintiff’s Motion asking the Court to accept certain evidence filed with the
Court as if it had been offered in an evidentiary hearing (Filing No. 86) is
granted.
DATED this 10th day of April, 2013.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge
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