Boykins et al v. City of New York et al

Filing 66

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)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK --------------------------------------------------------------SHAKEEM BOYKINS, KEVIN WINT, PRINCETON ANTOINE, Plaintiffs, -against- 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, Defendants. ---------------------------------------------------------------- x : : : : : : : : : : : : : : : : : x SHORT FORM MEMORANDUM AND ORDER 13-cv-2299 (ENV) (RER) VITALIANO, D.J. 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. I. Plaintiffs’ Motions in Limine Request A. Plaintiffs move to exclude Ruling 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. demonstrate their 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 1 Unless otherwise indicated, any reference to a rule in this short form order will be to a rule of the Federal Rules of Evidence. 2 Request Ruling 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. 2007). 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 3 Request Ruling 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. JPTO.) Accordingly, plaintiff’s motion is granted. D. Substantive Evidence: Turning first to nonimpeachment D. Plaintiffs move to exclude uses, information regarding plaintiffs’ prior convictions 4 Request Ruling 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 indictment, sentencing 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 2 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. 5 Request Ruling 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 impeachment purposes. 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 6 Request Ruling 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 7 Request Ruling 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. complaint, amended 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. 8 II. Defendants’ Motions in Limine Request A. Defendants move to Ruling 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 “terminology and (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 of silence.’” 3 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. 9 Request Ruling 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 10 Request Ruling 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 11 Request Ruling 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 indemnification. 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 conference. (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 12 Request Ruling 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). 13 Request C. Defendants seek to Ruling 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 from testifying. 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 14 Request amount to the jury. Ruling 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. 15

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