Boykins et al v. City of New York et al
ORDER granting in part and denying in part plaintiffs' First Motion in Limine (ECF Dkt. No. 43 ), defendants' First Motion in Limine (ECF Dkt. No. 47 ) and defendants' Supplemental Motion in Limine (ECF Dkt. No. 53 ). Ordered by Judge Eric N. Vitaliano on 11/22/2017. (Fernandez, Ashley)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------SHAKEEM BOYKINS, KEVIN WINT,
CITY OF NEW YORK, POLICE OFFICER
VLADIMIR RAVICH, SHIELD NO. 14673,
POLICE OFFICER THEODORE PETERS,
SHIELD NO. 13285, SERGEANT THOMAS
TURNER, SHIELD NO. 02747, POLICE
OFFICER JOHN DOE 1,
13-cv-2299 (ENV) (RER)
Jury selection in this matter is scheduled to begin on December 11, 2017. The
parties have each filed evidentiary motions in limine. (Pls.’ Mot in Limine, ECF No. 43; Defs.’
Mot in Limine, ECF No. 47). After the initial filings, in their reply, defendants included a
supplemental motion in limine. (Defs.’ Reply, ECF No. 53). Having fully considered the
motion papers, and seeing no need for further argument, the motions in limine are resolved in the
manner, and for the reasons, set forth in the following tables.
Plaintiffs’ Motions in Limine
A. Plaintiffs move to exclude
A. Rule 403 of the Federal Rules of Evidence 1 requires the
several YouTube videos
weighing of the probative value of proffered evidence
and photos that purportedly
against the likelihood of its creating unfair prejudice.
Under the strictures of Rule 403, any relevance that
membership in the “Loopy
evidence of plaintiffs’ gang membership, offered mainly
Gang.” (Defs.’ Exs. Y & Z
to show such membership, might have in this case is
in JPTO, ECF No. 42.)
substantially outweighed by the danger of unfair
prejudice, confusing the issues and misleading the jury.
Such a proffer risks the jury finding against plaintiffs on
account of their status as gang members alone.
Defendants contend that gang membership goes to show
whether defendants had probable cause to arrest. But,
that argument misses the mark because, despite its title,
gang assault in the second degree does not include gang
membership as an element. See N.Y. Pen. L. § 120.06.
The absence of gang membership as an element of the
crime vastly reduces the probative value of the evidence.
This is not to say that gang membership is irrelevant to
Unless otherwise indicated, any reference to a rule in this short form order will be to a
rule of the Federal Rules of Evidence.
proving gang assault; it is only to say that, assuming that
there is relevant purpose to the proffer, Rule 403
balancing bans it. It is true that such evidence showing
plaintiffs’ membership as a motive for the assault may be
appropriate under Rule 404(b). A proffer under that rule,
however, does not escape the reach of Rule 403. See,
e.g., United States v. Shellef, 507 F.3d 82, 101 (2d Cir.
Additionally, such evidence is not admissible under Rule
608(b) because gang membership is not probative of
plaintiffs’ character for untruthfulness. Lastly, this
evidence has no relevance to damages. Even assuming
some relevance that would entitle defendants to seek
admission of plaintiffs’ gang membership into evidence
at trial, any relevance is still substantially outweighed by
the danger of unfair prejudice and jury confusion.
The motion to preclude such evidence is, therefore,
granted upon application of Rule 403 balancing.
B. Plaintiffs move to exclude
B. (i) There appears to be no substantial dispute that the
(i) data from Kevin Wint’s
cellphone contains no recording of the contested incident
cellphone, along with (ii)
or other significantly relevant information. Introduction
the search warrant and
of the cellphone and its contents are, consequently,
corresponding affidavit for
precluded. This ruling does not bar, as plaintiffs
the search of that
concede, inquiry by defendants to establish that no such
cellphone. (Defs.’ Exs. V-
information was recorded or related information
X in JPTO.)
contained on Wint’s cellphone. Nor does it bar renewal
of a defense application to admit all or part of such
evidence should plaintiffs claim that they sought to or did
record such information on the cellphone.
(ii) The search warrant and affidavit are irrelevant,
especially given that these documents sought information
unrelated to the subject incident. Plaintiffs’ motion to
bar introduction of this evidence is granted.
C. Plaintiffs move to exclude
C. The letter of counsel is probative of nothing and is,
a letter sent by plaintiffs’
correspondingly, inadmissible under Rules 401 and 402.
counsel asking the NYPD
If the photos exist, they—not counsel’s letter—might be
to destroy photographs of
probative of, inter alia, damages. Furthermore, even had
plaintiffs taken after their
the letter been probative, the jury confusion that it would
arrest. (Defs.’ Ex. AA in
likely engender would bar it under Rule 403.
Accordingly, plaintiff’s motion is granted.
D. Substantive Evidence: Turning first to nonimpeachment
D. Plaintiffs move to exclude
uses, information regarding plaintiffs’ prior convictions
their rap sheets, their prior
and other contacts with the criminal justice system are
criminal convictions and
inadmissible propensity evidence under Rule 404(b).
Boykins’s prior federal
Defendants’ contention that the convictions qualify for
another permissible purpose under Rule 404(b)(2), such
opinion and transcript from
as absence of mistake, intent, motive or bias is
a case unrelated to the
unavailing. Moreover, any probative value is
incident in question.
substantially outweighed by the danger of unfair
(Defs.’ Ex. M-O in JPTO.)
prejudice and misleading the jury, i.e., the risk that the
jury might find against plaintiffs on the basis of their
purported criminal convictions or other prior contacts
with the criminal justice system. 2
Impeachment: Switching gears to the admission of
evidence for impeachment purposes, defendants claim
that Boykins’s purported arrest for providing a false
identification and plaintiffs’ probation violations are
admissible under Rule 608(b). Although the Court will
permit defendants to inquire on cross examination into
The ruling is, of course, prefaced by an extra large caution flag. If a plaintiff testifies
regarding alleged emotional damage, such testimony might likely open the door to the admission
of additional details concerning the plaintiff’s criminal history. See Banushi v. Palmer, No. 08cv-2937 (KAM)(JO), 2011 WL 13894, at *3 (E.D.N.Y. Jan. 4, 2011), aff’d, 500 F. App’x 84 (2d
Cir. 2012); Phillips v. City of New York, 871 F. Supp. 2d 200, 207 (E.D.N.Y. 2012). Most
importantly, if plaintiffs intend to elicit such testimony, the Court expects to be so advised at the
final pre-trial conference and it will take its ruling at that time.
this arrest since it is probative of Boykins’s character for
untruthfulness, they may not so inquire regarding
plaintiffs’ probation violations because they do not bear
on plaintiffs’ truthfulness. See United States v. Vasquez,
840 F. Supp. 2d 564, 574-75 (E.D.N.Y. 2011).
Momentarily putting to one side plaintiffs’ criminal
convictions, all other evidence of plaintiffs’ contacts with
the criminal justice system are inadmissible for
With regard to plaintiffs’ purported criminal convictions,
Rule 609(a)(1)(A) provides that a witness’s conviction
for a crime punishable by a term of more than one year in
prison may be utilized as impeachment, subject to the
balancing test of Rule 403. If the conviction is more than
ten years old, Rule 609(b) further provides that
“[e]vidence of the conviction is admissible only if . . . its
probative value, supported by specific facts and
circumstances, substantially outweighs its prejudicial
effect.” “[I]n balancing probative value against
prejudicial effect under this rule, courts examine the
following factors: (1) the impeachment value of the prior
crime, (2) the remoteness of the prior conviction, (3) the
similarity between the past crime and the conduct at
issue, and (4) the importance of the credibility of the
witness.” Jean-Laurent v. Hennessy, 840 F. Supp. 2d
529, 544 (E.D.N.Y. 2011) (citation omitted). Where
admission of multiple convictions is sought, “the
aggregate prejudicial effect of [both] convictions must
[next] be weighed against their probative value,”
because, “[o]nce a prior felony has been presented to the
jury, the incremental value of additional convictions may
be diminished.” United States v. White, No. 08-cr-682
(NGG), 2009 WL 4730234, at *5 (E.D.N.Y. Dec. 4,
2009) (citing United States v. Washington, 746 F.2d 104,
107 (2d Cir. 1984) (Newman, J., concurring)). For
admissible convictions, a court should admit evidence of
“the statutory name of the offense, the date of conviction,
and the sentence imposed.” United States v. Estrada, 430
F.3d 606, 617 (2d Cir. 2005). The Court is not presently
in a position to balance specific convictions because
when this motion was briefed the parties had not yet
received the certificates of disposition. To date, no such
certificates have been submitted to the Court.
Accordingly, the Court reserves decision until the pretrial conference regarding the admission of plaintiffs’
criminal convictions for impeachment purposes only.
See Jean-Laurent, 840 F. Supp. 2d at 540.
The motion is therefore granted in part, denied in part
and decision reserved in part.
E. The whole hog introduction of litigation documents by
E. Plaintiffs move to exclude
any party will simply not be permitted. These documents
litigation documents, i.e.,
may, of course, be used, where appropriate, to impeach a
plaintiffs’ notices of claim,
witness upon the showing of a ground for impeachment.
Discrete excerpts of litigation documents may be
complaint, and discovery
utilized, where appropriate, as admissions. See FRE
requests. (Defs.’ Ex. EE801(d)(2); Zitz v. Pereira, 119 F. Supp. 2d 133, 140-41
HH in JPTO.)
(E.D.N.Y. 1999), aff’d 225 F.3d 646 (2d Cir. 2000).
Such discrete proffers, however, are to be made in
limine, and defendants have not done so. At this point,
no such proffer will be accepted at trial.
Defendants’ Motions in Limine
Defendants move to
A. (i) For evidence of prior complaints against a police
preclude (i) any
disciplinary history or
purpose of establishing a pattern of conduct, and
current lawsuits against
assuming that the conduct actually occurred prior in time,
defendants or nonparty
“the extrinsic acts must share unusual characteristics with
police officer witnesses,
the act charged or represent a unique scheme.”
(ii) any reference by
Berkovich v. Hicks, 922 F.2d 1018, 1022 (2d Cir. 1991)
plaintiffs to unrelated
(internal quotations and citation omitted); see also
purported instances of
Ferreira v. City of Binghamton, No. 3:13-CV-107, 2016
police misconduct, news
WL 4991600, at *3 (N.D.N.Y. Sept. 16, 2016). But,
media reports, class
because plaintiffs have not sought in limine to do so and
actions, or criminal
defendants do not specify any disciplinary proceedings or
investigations and (iii) any
lawsuits they believe plaintiffs might seek to admit for
use by plaintiffs of
the most part, there is nothing for the court to decide 3
(the exception is the Fields lawsuit referenced infra). In
colloquialisms such as
their response, plaintiffs do identify a purported lawsuit
‘testilying’ and ‘blue wall
by Jaleel Fields against defendant Vladimir Ravich. The
officer to be admissible under Rule 404(b) for the
alleged conduct in the Fields suit, however, does not
Should plaintiffs seek to admit such evidence, they are required to move to do so in
limine before the upcoming pre-trial conference.
share sufficient unusual characteristics with the present
conduct at issue, nor does it represent a unique scheme.
The fact that Ravich allegedly assaulted a person who
was purportedly photographing him is not sufficient.
Most assuredly, in any event, the slight probative value
of this evidence, as plaintiff would proffer it, is far
outweighed by its potential for unfair prejudice and the
confusion these unrelated facts would cause, i.e., the jury
concluding that Ravich violated plaintiffs’ civil rights
because he had allegedly done so to other individuals.
Accordingly, the motion is granted with respect to the
Fields lawsuit, subject to an application at trial by
plaintiffs that Ravich’s testimony at trial somehow
opened the door to this evidence.
(ii) Defendants’ broad request to prevent any references
to any allegations of police misconduct cannot be
evaluated in a vacuum, and, as presented in their motion,
is vague and lacking precise definition. Accordingly,
this motion is denied, with leave for defendants to raise
more specific objections at the pre-trial conference and at
trial. Plaintiffs are reminded, of course, that the incidents
alleged in the complaint are what is on trial, not the
conduct of police officers at other times and places and
under other circumstances. Their arguments should
reflect that understanding.
(iii) Similarly, but keeping in mind the caution to
plaintiffs in (ii) above, without the benefit of context in
which the phrase is used at trial, the Court is in no
position now to peremptorily censor plaintiffs’ speech.
That said, it is hard to imagine in what circumstances
references to “testilying” and “blue wall of silence”
could ever be appropriate. In any event, defendants’
motion to bar certain terminology is denied, with leave
for defendants to make more specific objections at the
pre-trial conference and at trial.
B. Defendants move (i) to
B. (i) The City of New York is a defendant based solely on
remove the City of New
a respondeat superior theory of liability. Although
York from the caption, (ii)
defendants’ motion is somewhat unclear (it appears that
that the jury not be
certain language was lifted from another case with
instructed on respondeat
different defendants), it appears that defendants concede
superior, (iii) to preclude
that they were acting in the scope of their employment
plaintiffs from referring to
and that the City will be liable if the defendants are
defense counsel as “city
liable. Subject to defendants in fact making this
attorneys” and (iv) to
concession, because the limited probative value of
preclude evidence of
including the City of New York in the caption is
significantly outweighed by the danger of unfair
prejudice and confusing the jury as to whether the
conduct of the City is at issue, defendants’ motion is
granted, to the extent that the City of New York will be
removed from the caption of any document submitted to
the jury. See Estate of Jaquez v. Flores, No. 10 Civ.
2881 (KBF), 2016 WL 1060841, at *12 (S.D.N.Y. Mar.
17, 2016); Order, Calderon v. City of New York, No. 14
Civ. 1082 (PAE) (S.D.N.Y. July 28, 2016) (ECF No. 99).
(ii) This matter will be reserved until the final pre-trial
(iii) Plaintiffs have raised no specific objections to
defendants’ request that defense counsel not be referred
to as “city attorneys.” Defendants’ motion is granted to
the extent that plaintiff will not be permitted to refer to
defense counsel as “city attorneys.” To maintain a level
playing field, the jury will be instructed once, at the
beginning of trial, that “defendants are represented by
attorneys from the Office of the New York City
Corporation Counsel because they are members of the
New York City Police department, which is an agency of
the City of New York.” See Jean-Laurent v. Hennessy,
840 F. Supp. 2d 529, 550 (E.D.N.Y. 2011).
(iv) Similarly, plaintiffs raise no specific objections to
defendants’ request to preclude evidence of
indemnification. Accordingly, as for indemnification,
defendants’ motion is granted to the extent that plaintiff
will not be permitted to refer to or suggest the possibility
that the City will indemnify the defendant officers. If,
however, defendants open the door by offering argument
or evidence of the officers’ limited financial capacity,
plaintiff may move for reconsideration of this ruling. See
Anderson v. Aparicio, 25 F. Supp. 3d 303, 314 (E.D.N.Y.
2014), aff’d and remanded sub nom. Anderson v. Cty. of
Suffolk, 621 F. App’x 54 (2d Cir. 2015); cf. Provost v.
City of Newburgh, 262 F.3d 146, 163-64 (2d Cir. 2001).
C. Defendants seek to
C. (i) Upon defendants’ concession that the criminal cases
preclude (i) Robyn Lear
against plaintiffs were terminated favorably, the motion
and (ii) Dr. Collie Oudkerk
to preclude testimony to that effect by Attorney Robyn
Lear is granted. See FRE 403.
(ii) On this record, the motion to preclude Dr. Oudkerk’s
testimony is granted. Dr. Oudkerk was not noticed as an
expert, yet that is precisely the purpose for which
plaintiffs seek to call him: to provide explanation of the
terms used in the hospital records. The subsidiary
purpose for which he would be called is to qualify those
records for admission. Yet, nothing in the record
suggests that he is the custodian of those records or that
he would be able to lay a business records foundation for
them. In any event, unless there is a bona fide reason not
to, the parties should stipulate to the admissibility of
these medical records for business records purposes but
subject to other valid objections.
D. Defendants move to
D. The motion is denied, except that plaintiffs’ counsel will
preclude plaintiffs from
only be permitted—solely in the context of closing
suggesting a specific dollar
argument—to state what liability and damages the
amount to the jury.
evidence has established, and to submit a specific dollar
amount that plaintiffs contend is reasonable
compensation for their loss. The Court will instruct the
jury that statements by lawyers in closing are nothing
more than argument. See Edwards v. City of New York,
No. 08-2199 (TLM), 2011 WL 2748665, at *2 (E.D.N.Y.
July 13, 2011); see also Lightfoot v. Union Carbide
Corp., 110 F.3d 898, 912 (2d Cir. 1997).
E. Defendants move to
E. Plaintiffs assert that they seek to introduce this evidence
preclude plaintiffs from
to (i) show defendants’ departure from policing
introducing the “Finest
standards, (ii) refute any qualified immunity defense and
Message” and the NYPD
(iii) demonstrate the malice element of their malicious
Patrol Guide (Pls.’ Exs. 2-3
prosecution claim. Given that defendants have failed to
in JPTO) into evidence
include the text of the Finest Message or the NYPD
because they are irrelevant.
Patrol Guide that they seek to preclude, the Court
reserves decision on this motion. Again, it is
contemplated that, in light of the defense objection, that
plaintiffs should identify in limine what text they seek to
admit. It is anticipated that the proffer will be made at
the pre-trial conference, and the motion will be resolved
at that time.
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