Morgan v. Spivey, et al

Filing 177

ORDER denying 143 Motion in Limine to Bar Plaintiff's Use of Alternative Tactics Evidence/Argument; denying 149 Motion in Limine; granting Oral Motion in alternative to Bifurcate issue of punitive damages. Counsel is reminded to read the order in its entirety for critical information. Signed by District Judge Louise Wood Flanagan on 9/5/2019. (Collins, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:16-CV-365-FL

MICHAEL J. MORGAN,
Plaintiff,
v.
RICKY J. SPIVEY, in his individual and
official capacities as a Wake County
Sheriff’s Deputy, CASEY L. MILLER, in
his individual and official capacities as a
Wake County Sheriff’s Deputy, JOSHUA
K. LEGAN, in his individual and official
capacities as a Wake County Sheriff’s
Deputy, and THE OHIO CASUALTY
INSURANCE COMPANY, individually,
and as subsequent subsidiary of Liberty
Mutual Insurance Company, as Surety,
Defendants.

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ORDER

This matter came before the court at final pretrial conference September 3, 2019, in advance
of jury trial to commence September 16, 2019, on defendants’ motion at conference to exclude
expert testimony regarding the policies of the Wake County Sheriff’s Office (“WCSO”) on use of
force, their motions in limine to exclude evidence of alternative tactics (DE 143) and of liability
insurance (DE 149), and defendants’ motion raised at conference to bifurcate trial should the court
disagree with defendants’ position that no mention should be made at trial about the existence of any
insurance.1 For the reasons that follow, defendants’ motions to exclude expert testimony regarding

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conference.

A myriad of other motions also were considered and addressed from the bench at final pretrial

WCSO policies, evidence of alternative tactics, and evidence of liability insurance all are denied.
Defendants’ contingent motion to bifurcate trial on punitive damages, to which plaintiff consented
in part, is allowed.
COURT’S DISCUSSION
A.

Defendants’ Motion to Exclude Expert Testimony on WCSO Policies
At pretrial conference, defendants moved to exclude any reference by plaintiff’s expert

witness to WCSO policies in giving an opinion as to whether the use of force was reasonable in the
instant case. Defendants principally rely upon an opinion from the Seventh Circuit, which held that
consideration of a police department’s general order on the use of force “sheds no light on what may
or may not be considered ‘objectively reasonable’ under the Fourth Amendment given the infinite
set of disparate circumstances which officers might encounter.” Thompson v. City of Chicago, 472
F.3d 444, 454 (7th Cir. 2006).
However, the Fourth Circuit has held that an expert may refer to an officer’s training on use
of a gun, or standards of conduct for using weapons, to help provide an opinion on objective
reasonableness of that officer’s actions. Kopf v. Skyrm, 993 F.2d 374, 379 (4th Cir. 1993); see, e.g.,
Henry v. Purnell, 501 F.3d 374, 384 (4th Cir. 2007) (remanding for consideration of defendant’s
training on use of handguns and tasers); United States v. Mohr, 318 F.3d 613, 624 (4th Cir. 2003)
(“We explained that an ‘objective reasonableness’ test like that used to determine the reasonableness
of force ‘implies the existence of a standard of conduct,’ and where that standard is defined, not by
a reasonable person, but by a reasonable officer, ‘it is more likely that Rule 702’s line between
common and specialized knowledge has been crossed.’”).
The Seventh Circuit does not share defendants’ interpretation of its own case law either. In
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a recent decision, that court emphasized that:
Despite its strong language, Thompson should not be understood as establishing a
rule that evidence of police policy or procedure will never be relevant to the
objective-reasonableness inquiry. We recently clarified that expert testimony
concerning police policy is not categorically barred. See Florek v. Village of
Mundelein, 649 F.3d 594, 602–03 (7th Cir. 2011). Even though jurors can
understand the concept of reasonableness, in some cases they may not fully grasp
particular techniques or equipment used by police officers in the field. In those
instances an expert’s specialized knowledge can “help the trier of fact to understand
the evidence or to determine a fact in issue,” as Rule 702 requires. Fed. R. Evid.
702(a).
United States v. Brown, 871 F.3d 532, 537 (7th Cir. 2017).
Other circuits also are in accord. See, e.g., Stamps v. Town of Framingham, 813 F.3d 27,
32 n.4 (1st Cir. 2016) (“The defendants argue that we may not consider police training and
procedures in determining whether there was a Fourth Amendment violation. We disagree. Such
standards do not, of course, establish the constitutional standard but may be relevant to the Fourth
Amendment analysis. We have approved the taking of evidence about police training and procedures
into consideration.”); Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1059 (9th
Cir. 2003) (“Although such training materials are not dispositive, we may certainly consider a police
department’s own guidelines when evaluating whether a particular use of force is constitutionally
unreasonable.”); McCoy v. City of Monticello, 342 F.3d 842, 849 (8th Cir. 2003) (holding that a
jury must evaluate “the circumstances from the perspective of a reasonable officer following
customary police practices”).
Where the law of this circuit and other circuits counsels against defendants’ position,
defendants’ motion to exclude reference by plaintiff’s expert to WCSO policies, training, and
standards of conduct regarding use of force is denied. Plaintiff’s expert may refer to the subject
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policies and procedures to support his opinions as to what a reasonable officer would do under the
circumstances of this case.
B.

Defendants’ Motion to Exclude Evidence of Alternative Tactics (DE 143)
Defendants also move to exclude evidence of “alternative tactics” that defendants could have

employed instead of using force. Defendants speculate on several different lines of argument that
plaintiff may try to offer, including 1) defendant Spivey could have avoided trying to arrest plaintiff,
2) defendant Spivey could have driven around plaintiff’s truck or backed up and left the field
through another entrance, 3) defendant Spivey could stand by and watched then tried to give plaintiff
a ticket, 4) defendant Miller could have used a Taser, and 5) defendant Miller could have stood by
and not used any force to stop the truck from dragging defendant Spivey.
“The ‘reasonableness’ of a particular use of force must be judged from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham v. Connor,
490 U.S. 386, 396 (1989). “[T]he reasonableness of the officer’s actions in creating the dangerous
situation is not relevant to the Fourth Amendment analysis; rather, reasonableness is determined
based on the information possessed by the officer at the moment that force is employed.” Waterman
v. Batton, 393 F.3d 471, 477 (4th Cir. 2005) (citing Elliott v. Leavitt, 99 F.3d 640, 643 (4th Cir.
1996); Greenidge v. Ruffin, 927 F.2d 789, 792 (4th Cir. 1991)). Reasonableness of officers’ conduct
depends on the totality of the circumstances. Hensley on behalf of N. Carolina v. Price, 876 F.3d
573, 582 (4th Cir. 2017) (citing Yates v. Terry, 817 F.3d 877, 883 (4th Cir. 2016)). Where multiple
uses of force are involved, “[t]he better way to assess the objective reasonableness of force is to
view it in full context, with an eye toward the proportionality of the force in light of all the
circumstances.” Rowland v. Perry, 41 F.3d 167, 173 (4th Cir. 1994).
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Whether force is excessive depends upon “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.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018)
(citing Graham, 490 U.S. at 396). The court also considers the extent of the plaintiff’s injuries.
Rowland, 41 F.3d at 174. Absence of probable cause supporting a crime is relevant to the
reasonable force inquiry because it goes to the severity of the crime at issue. See Hupp v. Cook, 931
F.3d 307, 322 (4th Cir. 2019) (“Certainly, we may consider any lack of probable cause for the arrest
as we evaluate the reasonableness of the force used. But we consider the crime that is alleged to have
been committed in connection with our overall analysis of all of the circumstances surrounding the
use of force.”); Jones v. Buchanan, 325 F.3d 520, 528 (4th Cir. 2003); cf. Gilliam v. Sealey, 932
F.3d 216, 234 (4th Cir. 2019) (finding questions of fact remained in a § 1983 case regarding
probable cause to arrest plaintiffs based on allegedly involuntary confessions).
Plaintiff correctly points out that evidence of defendant Spivey’s and defendant Legan’s
actions prior to defendant Spivey using force on plaintiff are integral to plaintiff’s claims of unlawful
search and unlawful arrest. With respect to defendant Spivey in particular, plaintiff claims
defendant Spivey lacked probable cause to arrest plaintiff for obstruction. Probable cause means
that, “at the time the arrest occurs, the facts and circumstances within the officer’s knowledge would
warrant the belief of a prudent person that the arrestee had committed or was committing an
offense.” United States v. Johnson, 599 F.3d 339, 346 (4th Cir. 2010). Whether a reasonable person
would believe probable cause existed to find plaintiff obstructed defendant Spivey depends on
factors including whether defendant Spivey knew he could have left plaintiff’s property by another
means, or whether defendant Spivey knew he could have driven around plaintiff’s truck. Thus,

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defendant Spivey’s actions are admissible to prove unlawful arrest. Likewise, defendant Spivey’s
actions prior to using of force are admissible at trial to prove excessive force insofar as they show
that plaintiff committed no crime. See Hupp, 931 F.3d at 322; Jones, 325 F.3d at 528.
In remaining part, plaintiff concedes that the existence of a lesser use of force does not make
the greater use of force unreasonable. See Elliott, 99 F.3d at 643. However, plaintiff also argues
his expert should be allowed to introduce evidence of defendants’ training and relevant police
procedures to demonstrate what is objectively reasonable under the circumstances. See Kopf, 993
F.2d at 379. On this remaining portion of defendants’ motion, the court denies defendants’ motion
for the same reasons it denies defendants’ motion to exclude expert testimony regarding WCSO
training, policies, and standards of conduct.
C.

Defendants’ Motion to Exclude Evidence of Liability Insurance (DE 149)
Defendants move to exclude evidence of liability insurance, including mention of any

sheriff’s bond and/or liability insurance policy covering WCSO to the jury. The thrust of this
motion appears directed towards the latter, which plaintiff seeks to disclose to the jury in advance
of deliberations on any punitive damages award.
“Evidence that a person was or was not insured against liability is not admissible to prove
whether the person acted negligently or otherwise wrongfully.” Fed. R. Evid. 411; see Langley v.
Turner’s Exp., Inc., 375 F.2d 296, 297 (4th Cir. 1967). However, evidence of liability insurance is
admissible for purposes other than proving plaintiff acted negligently or wrongfully. See Fed. R.
Evid. 411; Ventura v. Kyle, 825 F.3d 876, 883 (8th Cir. 2016). The Fourth Circuit has held that “a
defendant’s financial position is a proper consideration in assessing punitive damages.” Stamathis
v. Flying J, Inc., 389 F.3d 429, 442 (4th Cir. 2004) (citing Pacific Mut. Life Ins. Co. v. Haslip, 499

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U.S. 1, 22 (1991)); see Saunders v. Branch Banking And Tr. Co. Of VA, 526 F.3d 142, 154 (4th Cir.
2008) (considering defendant’s net worth in evaluating if a punitive damages award was excessive).
While the Fourth Circuit has not expressly reached the issue of whether liability insurance
is admissible for purposes of determining any punitive damages award, other persuasive authorities
suggest the Fourth Circuit’s holdings regarding consideration of net worth for punitive damages
purposes embrace liability insurance. Other circuit courts have recognized that the “ultimate source
of payment,” such as a liability insurance policy, is admissible on the issue of punitive damages
because “[t]he jury must know the impact an award will have on the defendant to properly assess
punitive damages.” Perrin v. Anderson, 784 F.2d 1040, 1048 (10th Cir. 1986); Rodgers v. Fisher
Body Div., Gen. Motors Corp., 739 F.2d 1102, 1105 (6th Cir. 1984). As plaintiff points out, a
district court within this circuit has taken a similar stance. Wallace v. Poulos, 861 F. Supp. 2d 587,
601 (D. Md. 2012). Additionally, commentators have recognized that “Rule 411 does not prohibit
the use of evidence of insurance where it is relevant to the question of . . . punitive damages.”
Charles A. Wright & Victor Gold, 23 Fed. Prac. & Proc. § 5364 (3d ed. 2018).
While not admissible to prove fault, evidence of any liability insurance policy providing
coverage is admissible for the limited purpose of proving punitive damages. Accordingly,
defendants’ motion to exclude evidence of liability insurance is denied.
D.

Defendants’ Motion to Bifurcate Trial of Plaintiff’s Punitive Damages Claims
At final pretrial conference, defendants moved, should the court decide against them on the

issue of insurance, that trial of this case be bifurcated for purposes of determining punitive damages.
Plaintiff did not disagree with bifurcation in such instance, but ultimately asked that the court only
bifurcate the issue of the amount of punitive damages, leaving for the first phase of trial the question

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of whether punitive damages should be awarded.
Pursuant to Rule 42(b) of the Federal Rules of Civil Procedure, the trial court has authority
to bifurcate a trial with respect to the issues of liability and damages. Rule 42(b) states:
(b) Separate Trials. The court, in furtherance of convenience or to avoid prejudice,
or when separate trials will be conducive to expedition and economy, may order a
separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any
separate issue or of any number of claims, cross-claims, counterclaims, third-party
claims, or issues, always preserving inviolate the right of trial by jury as declared by
the Seventh Amendment to the Constitution or as given by a statute of the United
States.
The decision to bifurcate a trial under Rule 42(b) is committed to the sound discretion of the trial
court. See, e.g., In re Hutchinson, 5 F.3d 750, 758 (4th Cir. 1993); Dixon v. Transp., Inc., 990 F.2d
1440, 1443, 1445 (4th Cir. 1993); Bedser v. Horton Motor Lines, 122 F.2d 406, 407 (4th Cir. 1941).
“A trial must remain fair to both parties, and . . . considerations of convenience may not prevail
where the inevitable consequence to another party is harmful and serious prejudice.” Dixon, 990
F.2d at 1445 (quotation omitted).
At final pretrial conference, the court took the question concerning disclosure to the jury of
any insurance under advisement; however, it declared that if it ruled against defendants, as here,
bifurcation would not be accomplished as plaintiff suggested. Rather, as defendants proposed, the
trial would be, as it now is, bifurcated into 1) a liability and compensatory damages phase; and 2)
a punitive damages phase, if appropriate in the instant case, including in that second phase decision
on the question of whether any punitive damages should be awarded and if so, in what amount. In
this second trial phase any evidence of insurance may be disclosed in accordance with the foregoing.
Again, as noted above, the introduction of evidence of liability insurance to prove liability
is reversible error, but it is relevant as to the issue of punitive damages. Bifurcation eliminates any

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risk of prejudice by separating the issues of liability and compensation from punishment. The delay
caused by bifurcation to exclude this potentially prejudicial evidence from the liability portion of
the trial is minimal, as the parties represented at conference that most of the evidence regarding
punitive damages will already have been heard by the jury in the liability and compensatory
damages phase. Defendants’ contingent motion to bifurcate trial is met with favor.
CONCLUSION
Based on the foregoing, defendants’ motions to exclude expert testimony regarding WCSO
policies on use of force made September 3, 2019, evidence of alternative tactics (DE 143), and
evidence of liability insurance (DE 149) all are DENIED. Defendants’ contingent motion to
bifurcate trial of plaintiff’s punitive damages claims, raised September 3, 2019, is ALLOWED.
SO ORDERED, this the 5th day of September, 2019.

_____________________________
LOUISE W. FLANAGAN
United States District Judge

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