Hernandez v. City of Albuquerque et al

Filing 126

MEMORANDUM OPINION AND ORDER by District Judge Kenneth J. Gonzales denying without prejudice 22 Plaintiff's Motion in Limine No. 1: To Exclude Testimony or Evidence of Prior Civil Cases, Prior "Propensity to Get into Physical Altercations," Prior Allegations against Employees of the City of Albuquerque, and Other Irrelevant Testimony or Evidence. (tah)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ALFONSO HERNANDEZ,
Plaintiff,
vs.

Civ. No. 14-964 KG/SCY

CITY OF ALBUQUERQUE, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER DENYING WITHOUT PREJUDICE
PLAINTIFF’S MOTION IN LIMINE NO. 1
This matter is before the Court on Plaintiff’s Motion in Limine No. 1: To Exclude
Testimony or Evidence of Prior Civil Cases, Prior “Propensity to Get into Physical Altercations,”
Prior Allegations against Employees of the City of Albuquerque, and Other Irrelevant Testimony
or Evidence (Motion in Limine No. 1), filed April 1, 2015. (Doc. 22). Defendants filed a
response on April 16, 2015. (Doc. 29). Plaintiff filed a Notice of Completion of Briefing on
June 15, 2015. (Doc. 45). Having considered the briefing and the relevant law, the Court now
denies the Motion in Limine No. 1 without prejudice.
Plaintiff seeks to exclude testimony and evidence concerning 1) Plaintiff’s prior civil
rights cases against the City of Albuquerque (City) and police officers, 2) his prior unrelated
citizen complaints to the Police Oversight Commission and the Independent Review Officer,
parties responsible for investigating claims of misconduct by police officers, and 3) physical
altercations Plaintiff may have been involved in unrelated to the conflict that led to this litigation.
(Doc. 22) at 2. Plaintiff argues that any evidence related to these topics would be irrelevant to a
trial in this matter. Id. at 3. Moreover, even if the Court determined this information is relevant,
Plaintiff asserts that any probative value is substantially outweighed by the risk of prejudice. Id.

Plaintiff claims that Defendants seek to offer this “propensity” evidence as impermissible proof
of bad character. Id. at 3-9.
Defendants, on the other hand, argue that this evidence is clearly discoverable, relevant,
and admissible to show “motive, opportunity, intent, preparation, plan, knowledge, identity, lack
of mistake, lack of accident and modus operandi” as well as “habit.” (Doc. 29) at 5-6. However,
Defendants claim they need additional discovery to obtain the evidence necessary to fully
address Plaintiff’s arguments related to inadmissibility. (Doc. 29) at 3, 6. Defendants request
that the Court either deny or stay Plaintiff’s Motion in Limine No. 1 until the close of discovery.
Id. Discovery is currently stayed1 in this matter pending rulings on Defendant Powdrell and
Defendant City’s Motions for Summary Judgment, which raise the defense of qualified
immunity. (Docs. 49 and 73). The Court recently issued rulings on the pending summary
judgment motions. (Docs. 123 and 120).
I.

Legal Authority
“Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than

it would be without the evidence; and (b) the fact is of consequence in determining the action.”
FED. R. EVID. 401. “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. 403.
The Tenth Circuit has reminded district courts that they should be “mindful” that
“exclusion of evidence under Rule 403 that is otherwise admissible under the other rules is an
extraordinary remedy and should be used sparingly.” United States v. Smalls, 605 F.3d 765, 787

1

See the Court’s Order dated November 12, 2015. (Doc. 86).
2

(10th Cir. 2010). Evidence should be excluded under Rule 403 only if the probative value is
substantially outweighed by unfair prejudice. Sec. & Exch. Comm’n v. Peters, 978 F.2d 1162,
1171 (10th Cir. 1992) (emphasis added). In performing the 403 balancing test, “the court should
give the evidence its maximum reasonable probative force and its minimum reasonable
prejudicial value.” Id. (internal quotation omitted). “Rule 403 does not protect a party from all
prejudice, only unfair prejudice.” Deters v. Equifax Credit Information Servs., Inc., 202 F.3d
1262, 1274 (10th Cir. 2000).
Evidence of other acts may be admissible for purposes other than proof of a defendant’s
bad character or general propensity to commit a crime, “such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” FED. R.
EVID. 404(b). Evidence admitted under Rule 404(b) must satisfy a four-factor test:
1) the evidence must be offered for a proper purpose; 2) the evidence must be
relevant; 3) the trial court must make a Rule 403 determination of whether the
probative value of the similar acts is substantially outweighed by its potential for
unfair prejudice; and 4) pursuant to Rule 105, the trial court shall, upon request,
instruct the jury that evidence of similar acts is to be considered only for the
proper purpose for which it was admitted.
U.S. v. Zamora, 222 F.3d 756,762 (10th Cir. 2000). Rule 404(b) generally excludes evidence of
other acts offered to prove that a person acted similarly on other occasions, based on the
assumption that any slight probative value of such evidence is outweighed by the risk of
prejudice. Coletti v. Cudd Pressure Control, 165 F.3d 767, 776 (10th Cir. 1999) (explaining that
testimony relevant to motive or intent may still be disallowed if unduly prejudicial).
On the other hand, a party may present evidence of a person’s “habit” for the purpose of
proving that the person acted in conformity with that habit. FED. R. EVID. 406. Habit has been
defined as “a regular practice of meeting a particular kind of situation with a certain type of
conduct, or a reflex behavior in a specific set of circumstances.” Perrin v. Anderson, 784 F.2d
3

1040, 1046 (10th Cir. 1986) (internal citation omitted). Accordingly, while evidence of past
wrongs or acts is inadmissible to establish a character trait and “show action in conformity
therewith” under Rule 404(b), the same evidence may be admissible under Rule 406.
District courts have the power to exclude evidence only when evidence is clearly
inadmissible on all potential grounds. Cf. Luce v. United States, 469 U.S. 38, 41 n. 4 (1984)
(describing federal district courts’ authority to make in limine rules pursuant to authority to
manage trials). This power to exclude even relevant evidence is “extraordinary” and should “be
exercised sparingly.” Boardwalk Apartments, L.C. v. State Auto Prop. And Cas. Ins. Co., 816
F.3d 1284, 1289 (10th Cir. 2016) (internal citation and quotation omitted). “[I]n many cases,
evidentiary rulings should be deferred until trial so that questions of foundation, relevancy and
potential prejudice may be resolved in the proper context.” Garcia v. Crossmark, Inc., 157
F.Supp.3d 1046, 1054 (D.N.M. 2015) (internal citation and quotation omitted).
II.

Discussion
In his Complaint for Violations of the Tort Claims Act and Deprivation of Civil Rights

(Complaint), Plaintiff acknowledges a previous arrest and lawsuit resulting from his prior actions
in support of his “strong religious conviction …to extend help to…‘metrocampers’2…in the
Albuquerque area….” (Doc. 1-2) at ¶ 18. Plaintiff further states that he “has made it a point to
stop and video-record and ask questions when he sees a metrocamper who may be being
harassed, arrested, or harmed by anyone—including security officers….” Id. at ¶ 22. This
routine behavior is the very reason Plaintiff approached Defendants Andy Fitzgerald and Akeem

2

“Metrocamper” is a term used by Plaintiff to describe “homeless people and people suffering
hardships.”
4

Powdrell3 as they were detaining a homeless man (later identified as Manuel Bustamante) on
August 30, 2012. Id. at ¶ 26. The subsequent altercation between Plaintiff and the TSOs
resulted in this litigation. (Doc. 1-2).
Given these circumstances, Plaintiff’s prior civil rights cases against the City and police
officers and Plaintiff’s previous citizen complaints of misconduct by police officers are likely
relevant under the broad scope of FED. R. EVID. 401. Likewise, evidence of Plaintiff’s prior
physical altercations may also be probative. However, without more specific details regarding
the nature of such prior claims, complaints, altercations, and whether Defendant Fitzgerald was
aware of those actions, the Court is unable to adequately evaluate whether any potentially
probative value is substantially outweighed by the dangers of, inter alia, prejudice, confusion, or
delay, as described in FED. R. EVID. 403. Furthermore, absent precise details about the evidence,
the Court cannot appropriately weigh the parties’ additional arguments related to the evidence,
i.e. whether it is improper propensity evidence of bad character under FED. R. EVID. 404(b), or
permissible habit evidence under FED. R. EVID. 406.
For these reasons, the Court denies the Motion in Limine No. 1 without prejudice to
Plaintiff refiling it when the evidence has been more fully developed and the Court is in a better
position to effectively address the parties’ admissibility arguments.
IT IS ORDERED that Plaintiff’s Motion in Limine No. 1 (Doc. 22) is denied without
prejudice to refiling it at the close of discovery in this matter.

________________________________
UNITED STATES DISTRICT JUDGE

3

Defendants Andy Fitzgerald and Akeem Powdrell are Albuquerque Transit Department transit
security officers (TSOs). Akeem Powdrell is no longer a party to this lawsuit.
5