Colter v. The City of New York et al

Filing 54

MEMORANDUM AND ORDER, Having considered the submissions of the parties, and the elaboration of some of their arguments at the pre-trial conference of 6/27/17, the motions are resolved in the manner and for the reasons set forth herein. Granting in part and denying in part 36 Motion in Limine; granting in part and denying in part 37 Motion in Limine; granting in part and denying in part 38 Motion in Limine. (Ordered by Judge Eric N. Vitaliano on 7/5/2017) C/M (Galeano, Sonia)

On~)I\~~};,~£f~,cE
\ lri\ Di~~'.:'Cf
US

UN ITED STAT ES D ISTRICT COUR T
EASTERN DISTRICT OF NEW YORK

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CCUHTEON y

u "--u

!J

NAT HANIEL C OLTER,

20i7

*

BROOl\ LYN OFFICE
Pla intiff,

SHORT FORM
MEMORANDUM & ORDER

-against15-cv-32 14 (ENV) (SMG)
PO LICE OFFICER NELSON REYES and
PO LI CE OFFICER LAURENCE LA YERT Y,
Defendants.
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V IT ALIANO, D.J.
Jury selection in this case is sche duled fo r July I 0, 2 017. T he paiiies have fil ed various
motions in limine. See ECF Dkt. Nos. 36-4 1. Having considered the s ubmissions of the pai·ties,
and the e labo ration o f some of the ir a rg uments at the pre-tria l conference of June 27, 20 17, the
motions are resolved in the manne r and for the reasons set forth below.

I.

Pla intiffs motio ns in limine
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Motion
(A) Motions to exclude: (i)

Ruling
(A)(i) P la inti ffs motion to exclude the domestic incident

the domestic incide nt report; (ii) the report is granted in part and denied in part. T hat report was
SPRINT repo rt; (iii) the Fire

prepared by defenda nt Officer Reyes, based upon information

Department of New York

provided to him by the com plaini ng victim, Imingia Bowen,

("FDNY") ca ll report; and ( iv) the

whose call to police, on the morning of October 16, 2014, led to

pre-hospital care report. See ECF

Colter's arrest and the a lleged use of excessive force at issue here.

Dkt. No . 37 at Po ints I, JI , a nd IV .

C learl y, the repo rt itself falls under an exception to th e
hearsay rule, "eithe r as a business record under Ru le 803(6), ...
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or a public record under 803(8)." See Goldstein v. Ldurent, No.
09-cv-2437, 2011WL3586447, at *4 (S.D.N.Y.

Augl 2, 2011)
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(citing Parsons v. Honeywell, Inc., 929 F.2d 901, 90i(2d Cir.
1991 ), and Rosario v. Amal aamated Ladies ' Garment Cutters '
b

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Union, Local 10, 605 F.2d 1228, 1251 (2d Cir. 1979)). Cplter

em~nt

does not argue otherwise. Whether any particular staf

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•
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• 'bl
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contame d m the report Is a dmISSI e, however, turns on '\flhether It
was communicated to the police officers before or aftpr solter's
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To the extent Bowen provided her statement

~efof Colter
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was arrested (regardless whether Officer Reyes generfite~ the
report itself after the arrest, the contemporaneous reqfirement
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would be met), her statements would be admissible f6r t~e nonhearsay purpose of showing the circwnstances knoj to the
defendant officers at the time of the incident-rather !thJ to prove
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the truth of the statements themselves-and, for that reason,
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would be highly relevant to the jury's determination of the
reasonableness of any force that the officers used.

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je grerally
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Graham v. Connor, 490 U.S. 386, 397, 109 S. Ct. 1865, 1872,
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104 L. Ed. 2d 443 (1989) ("[T]he 'reasonableness' i~quio/ in an
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excessive force case is an objective one: the questiod is whether
the officers' actions are 'objectively reasonable' in

li~ht ff the

facts and circumstances confronting them, without regard to their
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underlying intent or motivation."). By contrast, though, if Bowen
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first spoke with Officer Reyes after Colter had been arresrd, then
her statements recorded in the domestic incident report not only

would be significantly less relevant, but also would constitute
hearsay not falling within any exception, since the statemrlnts
could no longer be offered for the non-hearsay

purpo~e o proving
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the officers' knowledge at the time of the arrest, and, 6-ioteover,

the "[s]tatements of third parties who have no duty toireptrt what
they observe, even if made as part of a police report, ~e not

admissible," unless they qualify under another

hearsa~ exception.
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,

Braccia v. D'Blass Corp., No. 08-cv-08927, 2011 WL 2848146,

at *7 (S.D.N.Y. June 13, 2011) (citing, inter alia, Palon1, 929
F.2d at 907), report and recommendation adopted, 2<•11

rL
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2848202 (S.D.N.Y. July 18, 2011); see United States v. i
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Bortnovsky, 879 F.2d 30, 34-35 (2d Cir. 1989); see afso 1°hnson
v. Lutz, 253 N.Y. 124, 127-28, 170 N.E. 517, 518 (19r30).I In any
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event, moreover, even if post-incident statements by ~oien
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documented in the report could squeeze into a hearsay e~ception,
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it is virtually inconceivable that they would pass a re~evapce test.

If, on the other hand, Bowen gave her statement tb the
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officers prior to Colter's arrest and, accordingly, her statlments in
the domestic incident report are relevant and admissiple, any use

of such statements at trial would be subject to the fo11o1ng

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additional guidelines. First, since both sides have idehtifled
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Officer Reyes and Bowen as potential witnesses, they ma~ testify
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from their own recollections regarding the matters covered in the
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report, subject to the usual rules of relevance and prejhdide
c.
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ba1ancmg. If necessary, they may re1er to the report tp refresh
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their recollections. To the extent there is a complete failure of

~e

recollection, and a foundation can be laid appropriate lror

introduction of excerpts from the report as past recollLtiOn
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recorded, those excerpts may be offered at that time. iseejFed. R.
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Evid. 803(5). Any such excerpts would still need to vaul' the
standard evidentiary hurdles of relevance, probative ~alue,
prejudice, and hearsay. Second, no mention may be made at trial
of the references in the report to Bowen's pregnancy at the time of
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the incident. The inflammatory nature of the detail t1at sre was
pregnant at the time that Colter allegedly struck her great~y
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outwe1gh s any mm1mal pro b atlve v al ue t h at 1t m1ght a dd:~o th e
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equation. See Fed. R. Evid. 403. Third, Bowen's stalement in the
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report that "[t]he police put [Colter's] head down on re i°od of
[the patrol] car [and] he hit his head against [the] window/glass"
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is excluded. That statement purports to describe eve?ts tpat took
place during and immediately after the arrest, and, thus, "'ould be
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offered by defendants only to prove the truth of the asser ion that
Colter caused his own injuries. While Bowen could, ifs 1e were

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to take the stand at trial, offer such testimony live, th~t sdtement
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in the repot is hearsay that does not fall within any retognized
exception. Fourth, if the domestic incident report is tb be

received in evidence, all references to Bowen's pregnLcf and
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comment regarding Colter having hit his head on the bar
shall be redacted.

ndow

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(A)(ii)-(iii) Plaintiffs motions to preclude the SPRINT
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report and FDNY call report are denied. Those reports

purportedly contain information gleaned by the 911

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ober~tor who

received the emergency calls related to the incident, Js

w~ll as the
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communications relayed over the radio to the responding :police
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officers, those officers' requests for assistance and eI?erg~ncy
medical services, and the responses to those requests.I C91ter
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objects to the use of these reports on the basis that thjY c~ntain
hearsay, including, specifically, a reference to a male1ca7ing a
firearm, which he contends would be unduly prejudi1ial, in light
of the fact that no gun was found on him or recovered fropi the
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scene of his arrest. See ECF Dkt. No. 37 at 2. However,!
assuming a proper foundation is laid at trial, the repof!s Would
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qualify for an exception from the rule against hearsa~ as Rule
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803(6) business records. See United States v. Chen luo,:No. 10cr-671, 2011 WL 145471, at *11 (E.D.N.Y. Jan. 18, 201

b

("The

court is inclined to agree in this case that the 911 recLdilgs and

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'sprint report' would qualify as business records and ~ould thus
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be admissible despite their hearsay status."). And, m?re
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importantly, those portions of the reports that indicat1 wi.t the
defendant officers had been told prior to engaging C~lter ~hat
morning to arrest him-including the reference to a r-rpoied male
with a firearm-are not hearsay at all, since they will:not !be
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offered for their truth, but rather to demonstrate the circufustances
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known to the officers at the time of Colter's arrest. Plainly, given
that the jury will be asked to decide whether the defe~dant
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officers' actions, including any use of force claimed by Oolter,
were "objectively reasonable ... in light of the facts and
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circumstances confronting them," this evidence is far, mote
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relevant than prejudicial. Graham, 490 U.S. at 397. 1The SPRINT
report and FDNY call report may, therefore, be utilized at trial1

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again, assuming the foundation, with respect to the FDNr call
report, in particular, satisfies the relevance test.

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(A)(iv) Although plaintiff did not mention tl~e pr~-

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hosp1tal care report m h. m /1mzne motions, he d'd a acl!l a copy
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o f 1t to h' motion papers, and, at the pre-tna1con1errce, made
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clear that he objects to the use of the report as evidere ~t trial.
The pre-hospital care report was prepared by FDNY emrgency
medical technicians ("EMTs") who responded to th, seer of
Colter's arrest, and who, now, have been noticed as possible trial
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witnesses. Colter concedes, as he must, that the docufneft is a
valid business record, for purposes of the Rule 803(6) hearsay
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exception. Nonetheless, he argues that portions of th~ re~ort are

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madm1ss1·b1 e hearsay that should be redacted.

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The first target of Colter's redacting pen is a s¢ntepce
indicating that he told the EMTs that he had hit his head dn the
police car "because he is a thug." ECF Dkt. No.

37~ at~· In

context, it is not clear whether the words "because he1is a/thug"
are attributed to Colter himself or to the EMT who prfpjed the
report. If Colter said it, then it likely would come in as a party
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admission-i.e., that he actively caused his own injuey. See Fed.
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,

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R. Evid. 80l(d)(2)(A). But, if the EMT added that flourish on his
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own, then it is hearsay that does not obviously fit under ahy
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recognized exception. Given this ambiguity, the CoJrt agrees that
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the five-word phrase "because he is a thug" should bf re1acted, at
least for the time being.
The second sentence that Colter seeks to redact is! more
obviously attributable to the EMT who authored the

iep+.

states that Colter "was verbally abusive and threatening

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~wards
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[the] crew and [the police] while in the ambulance." ECf Dkt.
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No. 37-4 at 2. Colter contends that this statement, too, sruld be
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redacted as hearsay not falling within any exception- jd the
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Court agrees. The defense would, presumably, offe1thelstatement

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for its truth, and it does not appear to be covered by any pricular
hearsay exception. Further, if it has any relevance at all, its
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prejudice vastly outweighs it.
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(B) Plaintifrs motions to

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(B)(i) In response, defendants represent that they fVill not
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preclude evidence of his prior

introduce any evidence or elicit any testimony concerhing

contacts with the criminal justice

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Co1 ' s Juvem e ad. d. .
ter .
~u 1cat1ons. C o1 ' s motion on
ter

system, including: (i) his juvenile

therefore, granted as unopposed.

tlil.1s s9ore 1s,
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adjudications; (ii) his felony
convictions; and (iii) his

(B)(ii) Colter has been convicted of three felonies: first
degree attempted robbery, in 2004; first degree crimilal

~ntempt,
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misdemeanor convictions, arrests

in 2014; and as a felon-in-possession, in 2016. Defendants seek
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record, prison record, and rap sheet. to use them for purposes of impeachment, under Rule
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See ECF Dkt. No. 37 at Points V,

609(a)(l)(A), which provides that a witness's conviction for a
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VI, VIII, IX.

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crime punishable by a term of more than one year in pris~n may
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be utilized as impeachment, subject to the balancing ~est ?fRule
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403. If the conviction is more than ten years old, Rule 609(b)

f

further provides that "[e]vidence of the conviction is dnrsible
only if ... its probative value, supported by specific fact~ and
circumstances, substantially outweighs its prejudicij

eff~ct." The

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parties agree t h at, " m b alancmg pro bat1ve value aga1fst
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prejudicial effect under this rule, courts examine the follqwing
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factors: (1) the impeachment value of the prior crime, (2j the
remoteness of the prior conviction, (3) the similarity befeen the
Past crime and the conduct at issue, and (4) the importance of the
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credibility of the witness." Jean-Laurent v. Hennessy, 84b F.

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Supp. 2d 529, 544 (E.D.N.Y. 2011).

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Evaluated under this rubric, Colter's 2004 attJmp ed

t

coiviction

robbery conviction must be excluded because, while

involving theft can be probative of a witness's credibility~ see
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United States v. Steele, 216 F. Supp. 3d 317, 326-27 ts.q.N.Y.
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2016), the impeachment value of this 13-year-old convic,ion
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cannot be said to substantially outweigh its

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prejudici~ irr}pact, as

required by Rule 609(b ), see United States v. Brown,
2d 306, 313 (E.D .N. Y. 2009) ("Under Rule 609(b),

i

60~ F.

Supp.

'ton~ictions

over 10 years old [should] be admitted very rarely and oJly in

~ejs old

exceptional circumstances,' as 'convictions over ten

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,

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generally do not have much probative value."' (citations
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omitted)).

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Next comes the 2014 conviction for criminal.co~tempt.
While a contempt conviction is not, on its face, as

p~oba~ve of a

witness's veracity as convictions for crimes "such as ... perjury,
criminal fraud, and embezzlement," see United

Stat~s v. IKhalil,
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No. 05-cr-573, 2005 WL 3117195, at *2 (2d Cir. Nov. 22, 2005),

~

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.gh
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1t certam1 cames we1 t as 1mpeachment, given that 1t mvo 1
ves
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the disregard of the orders, rules, and proceedings of a court-not
unlike the taking of an oath to tell the truth at trial.

~n ly event,
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"Rule 609(a)(l) presumes that all felonies are at lejt s1mewhat
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probative of a witness's propensity to testify truthfully." :United

States v. Estrada, 430 F.3d 606, 617 (2d Cir. 2005) (1itation
omitted). Moreover, given the apparent likelihood that Cplter will
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be the only witness who will testify at trial that the defendant
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officers used excessive force in arresting him, that defendants will
deny his allegations, and that there is a dearth of othJ

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eyewitnesses and documentary evidence concerning that bore
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dispute, Colter's credibility-or lack thereof-is critipally
important. See Jones v. City ofNY., No.

98-cv-6493~

207008, at *3 (S.D.N.Y. Feb. 11, 2002). The fact

2002 WL

tha~ the

. . .
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conv1ct1on ts re1 . 1 recent-and we11 with'm the ten-year
at1ve y
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window of Rule 609-tips the scales yet further tow~d
admissibility. Further, while the defendant officers allegedly used
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excessive force in arresting Colter on a separate char~e of
criminal contempt, it does not read on the balancing ts

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substantially prejudicial, and the jury will not be ask~d t9 decide
whether the arrest itself was justified, or whether Colter did, in
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fact, commit criminal contempt. Most critically, of cj6ur~e, the
conviction can be used solely for purposes of impeacrrt and
for no other purpose. Specifically, defendants canno~ us' it in any
way to bolster an argument that the conviction reads on the
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totality of circumstances and makes the amount of fdrce lsed
reasonable. On balance, then, the Court finds that thl prbbative

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impeachment value of Colter's 2014 contempt conviction

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outweighs any potential prejudicial effect, and it may :be
addressed for purposes of impeachment.
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The balancing test produces the same result with respect to
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Colter's 2016 conviction as a felon in possession of a firearm.
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Although the impeachment value of such a firearms conviction is
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on the lower end of the spectrum, see Brown, 606 F. Supp. 2d at
313-14, it, too, is at least somewhat probative of Coltir' s ;
credibility, see Estrada, 430 F.3d at 617. The three

r~m~ning
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factors all break toward admissibility. The conviction is less than
,
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a year old (and, indeed, Colter is still serving the sentence), it
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bears little similarity to the conduct at issue in this action~ and, as
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already noted, his credibility as a witness is of parampunt
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importance. Accordingly, Colter's 2016 felon-in-po~ses~ion
conviction also may be utilized as impeachment.

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Nonetheless, "the aggregate prejudicial effectl of [both]
convictions must [next] be weighed against their probati~e value,"
because, "[0 ]nee a prior felony has been presented to the

oury, the
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incremental value of additional convictions may be

dimi~ished."
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United States v. White, No. 08-cr-682, 2009 WL 473p231, 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)). Here,
the collective prejudicial effect of both convictions iroulr, indeed,

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outw~igh their probative value. For that reason, the iourf will
pemut the defense to make use of only one of these two :
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convictions-and for impeachment purposes only. See id. at *6.
In advance of trial, defense counsel shall advise the

104

and

plaintiffs counsel which conviction it has chosen. \\.fhicfever of
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the two convictions is selected, the defense inquiry ~11 bfe limited
to the identification of the name of the offense, the ddte o
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conviction, and the sentence imposed. See Estrada, 430 F.3d at
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616 ("inquiry into the 'essential facts' of the convictifn, tncluding
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the nature or statutory name of each offense, its date,! anq the
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sentence imposed is presumptively required by ... Rilile
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[609(a)(l)], subject to balancing under Rule 403" (citatidns
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omitted)).

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(B)(iii) Plaintiff also moves to preclude a laf1d1?' list of
other information about his prior contacts with the criminal justice
t

system, including his misdemeanor convictions, arrJsts

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~ecord,

prison record, and rap sheet. His motion is granted, Ld all such
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information shall be excluded. None of Colter's other ppor
convictions involved dishonesty or a false statement as required
for admission under Rule 609(a)(2). Likewise, the smo~gasbord
of other misconduct that the defense has identified

i~ tht

opposition papers-such as Colter's prior arrests, h,s mf ltiple
stints in prison, his numerous infractions in those pijso,s, his

12

parole violations, and his admitted gang membershi+h1s almost
no bearing on his character for truthfulness, which rules cut the
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possibility of admitting it under Rule 608(b). When i~ cotnes to
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using entries on Colter's prodigious list of crimes and
misconduct-all of which are probative only for imprcient
purposes-the ability to use any of these items for imfe,hment
purposes begins and ends with the Court's ruling that!only one of
his two most recent felonies may be used. 1
(C) Plaintiffs motions to

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(C) Plaintiffs motions are denied because s,tements
1

preclude defendants from
impeaching him with his original

made by him and his legal counsel in pleadings and discovery
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responses constitute party admissions that defendants: may utilize

complaint, amended complaint, and for purposes of impeachment. See, e.g., Order, Skinnlr
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vj City of
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discovery responses. See ECF Dkt. N. Y., No. 15-cv-6126, ECF Dkt. No. 67 at 13-16 (E.D.N.Y. Apr.
No. 37 at Points VII, X.

7, 2017) .. Statements in Colter's operative amended complaint are
binding judicial admissions, see Official Comm. of

U~se~ured
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Creditors of Color Tile. Inc. v. Coopers & Lybrand, LLPJ 322
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F.3d 147, 167 (2d Cir. 2003), and statements in his otigiJa1
comp1 · and d.
amt
1scovery responses, t hough not b.md.mg, may
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nonetheless be used by defendants to impeach him, s~e qnited

If plaintiff testifies regarding alleged emotional damages, he might, thereby, open the I
door to the admission of additional details concerning his criminal history. See Banushf
v. Palmer, No. 08-cv-2937, 2011 WL 13894, at *3 (E.D.N.Y. Jan. 4, 2011), ajf'd, sbo
App'x 84 (2d Cir. 2012). If that occurs, the Court will take up the issue at that tim,.

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States v. McKeon, 738 F.2d 26, 31 (2d Cir. 1984); Pitter v'. Metro1

N. Commuter R.R., 826 F. Supp. 2d 612, 618 (S.D.N.Y. 2011).
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Contrary to Colter's argument, sucli statements are nof heiirsay,

~xcluded

but rather are admissions by a party-opponent, which kre
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from the very definition of hearsay, see Fed. R. Evid. 801(d)(2),
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and, similarly, "prior inconsistent statements offered for '
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impeachment are, by definition, not hearsay" either, sinc4 they are
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not offered for the truth of the matter asserted, Order,ISkiiner,
No. 15-cv-6126, ECF Dkt. No. 67 at 16 (quoting Uni~ed ftates v.

Mergen, 764 FJd 199, 206 (2d Cir. 2014)). Colter furth~r argues

~xc\Uded

that his pleadings and discovery responses should be

because they were prepared by his legal counsel and do

~ot

contain his own "sworn statements." ECF Dkt. No. j7 aJ 3. That
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argument, too, falls flat, because "statements made by an: attorney
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concerning a matter within his employment may be admi.Ssible
against the party retaining the attomey"-which is JrtaiLy the
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case here. Order, Skinner, No. 15-cv-6126, ECF Dkt. No. 67 at
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16 (quoting Wechsler v. Hunt Health Systems Ltd, ~o. 94-cv1

8294, 2003 WL 22764545, at *3 (S.D.N.Y. Nov. 2d 2003)).
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Although plaintiffs motion is denied, the Court ~eserves
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decision as to whether any specific statement should be redacted
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or excluded-particularly any statements pertaining Ito cf aims that
· Colter has voluntarily withdrawn and will not be pui tote jury.

14

See, e.g., Chisholm v. Sloan-Kettering, No. 09-cv-82111, 2p11 WL
2015526, at *3 (S.D.N.Y. May 13, 2011).
(D) Plaintiffs motion is granted since there i~ no

(D) Plaintiffs motion to

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preclude defendants from

indication that, at the time of the incident, the defendant dmcers

mentioning or offering evidence

had any knowledge of his alleged mental health conditions.

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regarding his mental heal th

Given the absence of such knowledge, any such evidclnceiwould

diagnoses and treatment. See ECF

not be relevant in evaluating whether any force that Jey Led was

Dkt. No. 37 at Point XL

excessive. See, e.g., Wallace v. Mulholland, 957 F.2q 333, 336

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(7th Cir. 1992) (plaintiffs mental health history properly

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excluded where the defendant officers had no knowlfge !of it at
the time of the incident). Colter is cautioned, howevr jat he
could open the door to the admission of such evidenl iffe
argues, for instance, that his mental health conditions! we~e caused
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or exacerbated by the alleged use of excessive force 4unqg his
arrest-which, given the apparent absence of any meaical experts
as to cause or exacerbation of any such conditions, lould seem to
be an impossible argument for Colter to make.

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II.

Defendants' motions in limine
Motion
(A) Defendants' motions to

Ruling
(A)(i) Plaintiff has not opposed this motion, ahd it is
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preclude plaintiff from: (i) referring granted to the extent that plaintiff will not be permittep to refer to
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to defense counsel as "City

defense counsel as "City Attorneys." To maintain a

l~vel

playing
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Attorneys," and (ii) mentioning or

field, though, the jury will be instructed once, at the b¢ginping of

offering evidence of

trial, that "defendants are represented by attorneys front

~e Office

•

I

indemnification. See ECF Dkt. No. of the New York City Corporation Counsel because tqey are
38 at Point I.

members of the New York City Police department, w~ich!is an
agency of the City of New York." See Jean-Laurent,1840 F.
Supp. 2d at 550.
I

(A)(ii) As for indemnification, defendants' motioh is
!

I

granted to the extent that plaintiff will not be permitt9d to refer to
1

I

'

or suggest the possibility that the City will indemnifyjthe
1

i

i

defendant officers. If, however, defendants open the ooorI by
I
I

•

!

offering argument or evidence of the officers' limite1 fimµ1cial
capacity, plaintiff may move for reconsideration of ~is n,iling.

See Anderson v. Aparicio, 25 F. Supp. 3d 303, 314

2014), aff'd and remanded sub nom. Anderson v.

(~.D.N.Y.

Ctyl off!uffolk,
I

621 F. App'x 54 (2d Cir. 2015); cf. Provost v. City oflNewburgh,
262 F.3d 146, 163-64 (2d Cir. 2001).

16

(B) Defendants' motion to

(B) The motion is denied except that plaintif±ts c6unsel
I

I

'

I

I

preclude plaintiff from requesting a will only be permitted-solely in the context of closing
specific dollar amount from the

argument-to state what liability and damages the evjde9ce has
I

jury. See ECF Dkt. No. 38 at Point established, and to submit a specific dollar amount that plaintiff
II.

contends is reasonable compensation for his loss. Thl

clurt will

.
. osmi
I
mstruct the Jury that statements blawyers m c1.1 are.nothi ng
y
0

more than argument. See Edwards v. City ofNew York, o/o. 081

2199, 2011 WL 2748665, at *2 (E.D.N.Y. July 13, 2011); see
I

I

I

also Lightfoot v. Union Carbide Corp., 110 F.3d 898~ 912 (2d Cir.

1997).
(C) Defendants' motions to

(C) In opposition to defendants' broad moti~n to! preclude
I

preclude plaintiff from eliciting

I

inquiry into or documentary evidence of any CCRB bomplaints,
I
I

evidence of other complaints to the performance evaluations, and other civil rights suits, Col~er has
Civilian Complaint Review Board

indicated his desire to introduce evidence about three prior CCRB
!

I

("CCRB") concerning defendants or complaints that were lodged against defendant Officfr Reyes,
I

other police officers who may be

which relate, respectively, to incidents that alleged!~ occurred in
!

called to testify, any such officers'
performance evaluations, and any
other civil rights suits filed against

I

January, July, and August of 2014;
At the doorstep, though, any inquiry into the ,Janfary and
August 2014 complaints must be precluded because~ as Colter
I

I

such officers. See ECF Dkt. No. 38 concedes (see ECF Dkt. No. 41 at 4-11), the complaintsiwere
at Point III.

investigated by CCRB and were found to be unsubsrti'!ated. See
~97

Hardy v. Town of Greenwich, 629 F. Supp. 2d 192,

2009) ("The Second Circuit has held that evidence

Jr ci}'ilian
I

17

(D. Conn.

I

complaints is properly excluded on Rule 403 groundsjwh,re those
complaints have been properly investigated and have been found
I

:

1

to be unsubstantiated." (citing Berkovich v. Hicks, 921. F.ld 1018,
1023 (2d Cir. 1991), and Thomas v. Roach, 165 F.3d i37, 145 (2d
Cir. 1999))). Also, while CCRB found the July 2014 complaint
substantiated insofar as it concluded that Officer

Rey~s h~d used
I

force against the complainant, evidence pertaining to it, tdo, must
I

be excluded, under Rules 403 and 404(b).

i

Colter contends that an inquiry into these prioi cdRB

Ru!~ 40~(b), in
order to prove intent, pattern, and lack of mistake on re :art of
complaints would be appropriate, consistent with

!
I

the defendant officers. His "intent" argument fails, h?wter,
because excessive force claims are evaluated under an objective
I

:

I

reasonableness standard, which means that the defenjant 'officers'

subjective "intent is irrelevant to the primary questio; wither
excessive force was used." Ricketts v. City ofHartfo,d, ~4 F.3d
1397, 1411, 1414 (2d Cir. 1996) (quoting Graham, 4f0 q.s. at
.

j

396-97), as amended on reh 'gin part (Feb. 14, 1996); seb

r
I

Stephen v. Hanley, 19 Fed. R. Evid. Serv. 875, 2009
1471180, at *3, 7 & n.2 (E.D.N.Y. May 21, 2009).

I

~or

I
I

I
4an
I

Colter's "pattern" argument withstand scrutiny, since, norte of the
three CCRB complaints involved a factual scenario

tal~gous to

the case at bar. See Ricketts, 74 F.3d at 1414 ("[W]eiwodld

.

18

I

consider it an abuse of discretion to admit [similar act] evidence if

.

I

the other act were not sufficiently similar to the conduct at issue."

f

(second alteration in original) (citation omitted)). cekiJy, the
prior complaints do not share any unusual characteris1ics

th the

current case, or otherwise reveal a unique scheme on ihe P,art of
the defendant officers. See Berkovich, 922 F.2d at

10~2-13 (to

establish a pattern of conduct, "the extrinsic acts mus, shre
'unusual characteristics' with the act charged or repre~entl a
!
i

'unique scheme"' (citation omitted)). Further, as the defendant

t

officers have not asserted "accident" or "mistake" as dJense,
I

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Colter's argument on that front must be reiected, too ..~ See
:J
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Ricketts, 74 F.3d at 1414.

Anticipating the Court ruling against his Rule :404fb)
arguments, Colter has also argued, in the alternative, that Rule
608 permits him to cross-examine Officer Reyes abolt th!: July
I

I

2014 incident and its subsequent investigation by CCJIB, during
1

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•

which he allegedly offered inconsistent accounts of ihether and
I

I

to what extent he had used force against the complainant./ But,
I

even assuming, arguendo, that this incident and inve,tiga~ion
were probative of Officer Reyes's veracity-a doubtfl I
proposition, given the apparent absence of any finding or even a
I

charge by CCRB or any other body that he perjured Himself or
I

made a false statement-Colter's proposal to cross-e~amre

19

/s/ USDJ ERIC N. VITALIANO