Enoch v. Hamilton County Sheriff's Office et al

Filing 151

ORDER that Plaintiffs motion in limine 133 is GRANTED IN PART AND DENIED IN PART; Neither plaintiffs nor defendant will reference the Sixth Circuits probable cause finding during voir dire or opening statements; Defendants motion in limine to exclude testimony related to Judge Nadels recording ban statements 136 is GRANTED; Defendants motion in limine to exclude testimony related to racial animus 137 is DENIED. Signed by Magistrate Judge Karen L. Litkovitz on 3/2/2022. (art)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
VANESSA ENOCH, et al.,
Plaintiffs,

Case No. 1:16-cv-661
Litkovitz, M.J.

vs.
HAMILTON COUNTY SHERIFF,
Defendant.

ORDER

Plaintiffs initiated this civil rights action in 2016 challenging their arrests and the
confiscation of their recording devices in the Hamilton County Courthouse. This matter is
before the Court on various motions in limine (Docs. 133, 136, and 137). Plaintiffs move to
exclude: (1) the deposition transcript of deceased Common Pleas Judge Norbert Nadel; (2) the
narrative statement of deceased witness Kimball Perry; and (3) all references to prior Court
Orders in this case. (Doc. 133). Defendant moves to exclude: (1) third-party testimony of Judge
Nadel’s statements concerning Hamilton County Local Rule 33 and the prohibition against
recording inside the Hamilton County Courthouse (Doc. 136); and (2) any reference to racial
animus or racial retaliation as a motivating factor for plaintiffs’ arrests (Doc. 137). Appropriate
response and reply memoranda have been filed (Docs. 138, 139, 140, 141, 142, 143, 144, 145).
I. Background
The Sixth Circuit summarized the factual background of this case as follows:
In 2014, Enoch and Corbin visited the county courthouse in Hamilton County,
Ohio to attend a pretrial hearing in the criminal prosecution of Tracie Hunter, a
local juvenile court judge. Corbin was a bailiff for Judge Hunter before she was
removed from the bench. Enoch was in court that day conducting a case study of
the prosecution of Judge Hunter. At the conclusion of the day’s proceedings, Enoch
and Corbin exited the courtroom and, using their iPads, began taking videos and
photos in the hallway.
Enoch and Corbin stood with others congregated outside the courtroom. When
Kimball Perry, a reporter for the Cincinnati Enquirer, exited the courtroom, Corbin

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pointed the iPad towards Perry. As Perry walked down the hallway and turned
down a different hallway, Corbin followed, taking pictures of and video recording
the reporter. Perry then called out to the Deputies—here, acting as court security
officers—that Corbin was taking pictures in the hallway. All the while, Enoch was
also taking pictures on her iPad. The Deputies responded to the commotion.
Deputy Hogan ordered Corbin and Enoch to stop recording and to turn off their
devices, insisting that a local court rule prohibited photography or video recording
anywhere in the courthouse. The Deputies also demanded that Corbin and Enoch
provide photo identification. After Corbin did so, he argued with the Deputies that
he was permitted to take pictures and record videos in the hallway because the judge
only prohibited photography inside the courtroom, not in the hallways.
While the Deputies were discussing Corbin’s conduct that had led to the
commotion, Corbin took out his iPad again to take a picture of the courtroom door.
On the door was posted a notice stating that “use of cell phones, pagers, cameras,
electronic devices are prohibited without permission of the Court.” R. 84-11 at
PageID 1236.
Local Rule 33(D)(6) prohibits recording “in any courtroom or hearing room, jury
room, judge’s chambers or ancillary area (to be determined in the sole discretion of
the Court) without the express permission of the Court.” Hamilton Cty. Common
Pleas Court R. 33(D)(6). Judge Nadel, who presided at the Hunter trial, gave an
instruction in his courtroom pursuant to Rule 33(D)(6), but did not reference
“hallways” in those instructions. However, when deposed in this case, Judge Nadel
testified that he understood that “the hallway” was an “adjacent area[ ]” that was
“ancillary to the courtroom” and that he thought that this understanding was
implicit in his order. Neither Hogan nor Nobles had seen an order from Judge
Nadel defining “ancillary areas” to include the hallways of the courthouse.
The Deputies charged both Corbin and Enoch for disorderly conduct under Ohio
Rev. Code § 2917.11. Enoch also was charged with failure to disclose information
under Ohio Rev. Code § 2921.29, on the basis that she had refused to identify
herself. The Deputies later testified that they arrested the pair for taking
photographs in violation of Local Rule 33(D)(6). All charges were subsequently
dismissed.
Enoch and Corbin filed this suit under 42 U.S.C. § 1983 alleging First and Fourth
Amendment claims and pendent state-law claims against Deputies Hogan and
Nobles, the Hamilton County Sheriff’s Office, and County Sheriff Jim Neil, along
with four other employees of the Sheriff’s Office who have since been dismissed.
As part of their claims, Enoch and Corbin maintained that they were singled out
and arrested because they were African American. Although several other
individuals—most of them white—were using cameras and other recording devices
in the hallways, they were not prohibited from doing so by the Deputies, and none
of them were arrested.

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Enoch v. Hamilton Cty. Sheriff’s Off., 818 F. App’x 398, 400–01 (6th Cir. 2020) (footnote
omitted).
II. Procedural Background
This case has a long and complicated procedural history, including two appeals to the
United States Court of Appeals for the Sixth Circuit and a post-remand Order from this Court
granting in part and denying in part defendant’s motion to dismiss or for summary judgment.
(Doc. 120). The result is that only one claim remains – plaintiffs’ official capacity claim against
the Hamilton County Sheriff 1 for speech-based retaliation in violation of the First Amendment.
In preparation for the March 7, 2022 trial, both parties filed motions in limine. Plaintiffs
first move to exclude the deposition transcript of deceased Common Pleas Judge Norbert Nadel.
Judge Nadel presided over the Tracie Hunter criminal proceedings, and plaintiffs contend that his
deposition testimony should be excluded pursuant to Federal Rules of Evidence 402 and 802 2
because it is both irrelevant and inadmissible hearsay. (Doc. 133 at PAGEID 2152-54). Second,
plaintiffs move to exclude the narrative statement of Kimball Perry, a non-party witness who is
now deceased, because it constitutes inadmissible hearsay as defined in Rules 801 and 803 and
because it lacks the necessary authentication required by Rule 901. (Doc. 133 at PAGEID 215458). Finally, plaintiffs move to exclude all references to prior Court Orders in this case,
particularly references to a finding that the arresting deputies had probable cause to arrest
plaintiffs, because the finding is irrelevant to the remaining claim and because such references
would invade the Court’s exclusive province to instruct the jury on the applicable law. (Doc.
133 at PAGID 2158-59).

All references to the Hamilton County Sheriff are in an official capacity only. The official capacity claim is a
claim against Hamilton County, the “entity of which an officer is an agent.” Monell v. Dept. of Social Services, 436
U.S. at 690, n. 55.
2
All references to “Rules” in this Order refer to the Federal Rules of Evidence unless otherwise specified.
1

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The defendant first moves to exclude any third-party testimony regarding Judge Nadel’s
statements about Hamilton County Local Rule 33 and the County courthouse recording ban.
(Doc. 136). Defendant contends that witness testimony regarding Judge Nadel’s recording
instructions constitutes inadmissible hearsay in violation of Rule 802, especially when Judge
Nadel’s deposition contains the best evidence of Judge Nadel’s instructions. (Doc. 136 at
PAGEID 2183-86). Second, defendant moves to exclude any reference to racial animus or racial
retaliation as a motivating factor for plaintiffs’ arrests. (Doc. 137). The defendant contends that
any testimony that the arresting deputies were motivated by racial animus or disparate treatment
of racial groups should be excluded pursuant to Rule 402 as irrelevant and pursuant to Rule 403
as unduly confusing to the jury and unfairly prejudicial to the defendant. (Doc. 137 at PAGEID
2190-92). In addition, defendant argues, without a proper foundation such testimony constitutes
inadmissible lay witness opinion testimony and must be excluded pursuant to Rule 701. (Id. at
PAGEID 2192-94).
III. Legal Standard
While motions in limine are not explicitly authorized by the Federal Rules of Procedure
or Federal Rules of Evidence, the Court has the discretion to determine a motion in limine
pursuant to its “inherent authority to manage the course of trials.” In re Davol, Inc./C.R. Bard,
Inc., Polypropylene Hernia Mesh Products Liab. Litig., 546 F. Supp. 3d 666, 670 (S.D. Ohio
2020) (quoting Luce v. United States, 469 U.S. 38, 41 n. 4 (1984)). Motions in limine are
intended “to avoid delay and ensure an evenhanded and expedient trial” by ruling on certain
evidentiary issues in advance of trial. Id. (quoting In re E.I. du Pont de Nemours &Co. C-8 Pers.
Injury Litig., 348 F. Supp. 3d 698, 721 (S.D. Ohio 2016)); see also Ind. Ins. Co. v. Gen. Elec.
Co., 326 F. Supp.2d 844, 846 (N.D. Ohio 2004).

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Courts should grant motions in limine “only when evidence is clearly inadmissible on all
potential grounds.” Gresh v. Waste Servs. of Am., Inc., 738 F. Supp. 2d 702, 706 (E.D. Ky.
2010) (citation omitted). “Unless evidence meets this high standard, evidentiary rulings should
be deferred until trial so that questions of foundation, relevancy and potential prejudice may be
resolved in proper context.” In re E.I. du Pont, 348 F. Supp. 3d at 721 (quoting Ind. Ins. Co.,
326 F. Supp. 2d at 846)).
The Sixth Circuit has stated that the “better practice” is to address questions regarding the
admissibility of broad categories of evidence “as they arise.” Sperberg v. Goodyear Tire &
Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975). “[A] court is almost always better situated
during the actual trial to assess the value and utility of evidence.” Owner–Operator Independent
Drivers Ass'n v. Comerica Bank, No. 05–CV–0056, 2011 WL 4625359, at *1 (S.D. Ohio Oct. 3,
2011) (citation omitted). “The denial, in whole or in part, of a motion in limine does not give a
party license to admit all evidence contemplated by the motions; it simply means that the Court
cannot adjudicate the motion outside of the trial context.” In re Davol., Inc., 546 F. Supp. 3d at
671.
IV. Analysis
A. Judge Nadel’s Deposition Testimony and Testimony of Courtroom Witnesses
Plaintiffs move to exclude Judge Nadel’s deposition testimony as irrelevant and
inadmissible hearsay. (Doc. 133). The defendant contends that Judge Nadel’s deposition
testimony is the best evidence of the late judge’s recording instructions, and, therefore, the Court
should admit the deposition but exclude third-party witness testimony regarding Judge Nadel’s
in-court recording prohibition. (Doc. 137).

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1. Sixth Circuit Determination
As part of it qualified immunity analysis in this case, the Sixth Circuit stated:
Two things are undisputed: that Enoch and Corbin were recording in the hallways
outside the courtroom, and that Judge Nadel, who presided at the Hunter
proceedings, never entered an order defining the hallways as “ancillary area[s]” in
which recording was prohibited.
(Doc. 108 at PAGEID 1978). The Court then concluded that the arresting deputies had probable
cause to arrest Enoch and Corbin for violating Rule 33(D)(6), the recording ban, and were,
therefore, entitled to qualified immunity. Id. at PAGEID 1977-78. See also Id. at PAGEID
1979) (“Even if the rule itself, and Judge Nadel’s supplemental order, did not explicitly
characterize the hallways as ‘ancillary area[s],’ the unrebutted evidence shows that the common
practice in the Hamilton County courthouse was to treat it as such . . . [so it was] reasonable for
the Deputies to have believed that was the case here.”).
Plaintiffs request that the Court instruct the jury that Judge Nadel never explicitly
included the hallways in his recording ban. (Doc. 141 at PAGEID 2217). If the Court so
instructs, Judge Nadel’s testimony becomes irrelevant and plaintiffs agree not to call witnesses to
testify to Judge Nadel’s in-court statements regarding the recording ban. (Doc. 141 at PAGEID
2218-19).
2. Applicable Hearsay Exception
“Hearsay” is an out-of-court statement that “a party offers in evidence to prove the truth
of the matter asserted in the statement.” Fed. R. Evid. 801(c). Unless an exception applies,
hearsay is not admissible at trial. Fed. R. Evid. 802.
The parties agree that Judge Nadel’s deposition testimony constitutes hearsay. (Doc. 133
at PAGEID 2152; Doc. 139 at PAGEID 2206). The issue, then, becomes whether an exception
applies to the general hearsay inadmissibility rule.
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Rules 803 (which applies regardless of whether the declarant is available) and 804 (which
applies only when the declarant is unavailable as a witness) enumerate the most common
exceptions to the hearsay rule. As Judge Nadel died in 2021, he is obviously unavailable as a
witness at trial. Fed. R. Evid. 804(a)(4). Where a declarant is unavailable, his former testimony
in the same matter is “not excluded by the rule against hearsay if” the testimony “was given as a
witness at a trial, hearing, or lawful deposition” and the party against whom it is offered had “an
opportunity and similar motive to develop it by direct, cross-, or redirect examination.” Fed. R.
Evid. 804(b)(1).
In this case, plaintiffs—the parties against whom the testimony is offered—deposed
Judge Nadel under oath at a lawful deposition. Plaintiffs had both the opportunity and the
motive to develop his testimony as if on cross-examination. Accordingly, pursuant to Rule
804(b)(1), Judge Nadel’s deposition testimony is not excludable as hearsay.
3. Relevance
Plaintiffs also seek to exclude Judge Nadel’s deposition testimony as irrelevant. (Doc.
133 at PAGEID 2152). Conversely, defendant seeks to exclude any testimony from plaintiffs’
witnesses “as to the statements or orders that Judge Nadel made regarding the prohibition on the
use of recording devices in the Hamilton County Court of Common Pleas.” (Doc. 136 at
PAGEID 2184).
With regard to relevance, several facts appear to be undisputed: (1) Judge Nadel ordered
attendees at the Hunter in-court criminal proceedings to refrain from “taking cell phone pictures”
(Doc. 95-2 at PAGEID 1702); (2) Judge Nadel never explicitly extended that order to the
hallways (Doc. 79 at PAGEID 893; Doc. 120 at PAGEID 1250); (3) Judge Nadel testified at his
deposition that he considered the hallway adjacent to the courtroom and, therefore, implicitly

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included within the order prohibiting recording (Doc. 79 at PAGEID 884, 892-93); (4) Judge
Nadel approved applications for media members to record “judicial proceedings” but none of
those orders referenced the hallways (Doc. 84-9 at PAGEID 1234); (5) plaintiffs intend to call
fact witnesses to testify to Judge Nadel’s recording ban statements to those present in the
courtroom (Doc. 135 at PAGEID 2171-73); and (6) neither arresting deputy, at the time of
plaintiffs’ arrests, had seen an order from Judge Nadel stating that the hallways were implicitly
included in the recording ban (Doc. 108 at PAGEID 1973).
In denying summary judgment on plaintiffs’ sole remaining claim, the official capacity
First Amendment claim, the Court explained:
In light of these factual issues, the Court cannot resolve on summary judgment
whether the Nieves [v. Bartlett, 139 S.Ct. 1715 (2019)] exception applies and a
constitutional violation occurred; i.e., whether despite having probable cause to
detain and arrest plaintiffs, defendants violated plaintiffs’ First Amendment rights
by singling them out for punishment.
Though plaintiffs cannot pursue their First Amendment claim against the defendant
deputies in their individual capacity based on the Nieves exception, [the second
Sixth Circuit opinion in this case] does not foreclose plaintiffs from pursuing their
official capacity claim for speech-based retaliation under the First Amendment.
Plaintiffs can proceed under the theory that the deputies were enforcing an official
policy or custom of the County when they arrested plaintiffs for recording events
in the hallway of the Hamilton County Courthouse while other similarly situated
individuals were not arrested.
(Doc. 120 at PAGEID 2063). The “factual issues” to which the Court referred include “whether
plaintiffs and the other individuals recording in the Courthouse hallways at the time of plaintiffs’
arrests were similarly situated” (Id.) and “whether the defendant deputies acted pursuant to a
County policy when they arrested plaintiffs.” (Id. at PAGEID 2064). Thus, these are the factual
issues against which relevance must be measured.
In arguing the relevance of Judge Nadel’s deposition testimony, defendant states, without
citation to authority, “Plaintiffs must show that Deputies Hogan and Nobles acted pursuant not
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merely to an unconstitutional County policy, but instead pursuant to an unconstitutional policy of
the Hamilton County Sheriff.” (Doc. 139 at PAGEID 2207) (emphasis in the original).
Defendant argues that Judge Nadel’s testimony directly contradicts the position that the deputies
were acting pursuant to an “unconstitutional policy of the Hamilton County Sheriff’s Office
when they arrested [p]laintiffs.” (Doc. 139 at PAGEID 2205). The distinction defendant seeks
to draw finds no support in the law.
Plaintiffs’ official capacity suit against the Hamilton County Sheriff is in reality an
official capacity suit against Hamilton County, the entity of which defendant is an agent. See
Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690 (1978). See also Wells v.
Brown, 891 F.2d 591, 594 (6th Cir. 1989). “An official-capacity claim against a person is
essentially a claim against the municipality.” Peatross v. City of Memphis, 818 F.3d 233, 241
(6th Cir. 2016); Myers v. Montgomery Cty. Bd. of Comm’rs, No. 3:18-cv-00409, 2019 WL
2567748, at *3 (S.D. Ohio June 21, 2019) (§ 1983 official capacity claims against county sheriff
and deputy are “claims against the municipality, i.e., the County”); Young v. Campbell County,
846 F. App’x 314, 329 (6th Cir. 2021) (Because a § 1983 action against an officer in his official
capacity “is equivalent to a suit against the entity on whose behalf he acts—Campbell County,”
the “‘plaintiff “must show that the alleged violation occurred because of a municipal policy,
practice, or custom.’”) (quoting Brown v. Chapman, 814 F.3d 447, 462 (6th Cir. 2016)). In
Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994), a civil rights case where the Chief of the
Jefferson County, Kentucky Police Department was sued in his official capacity, the Sixth
Circuit explained:
A suit against an individual in his official capacity is the equivalent of a suit against
the governmental entity. Will v. Michigan Dept. of State Police, 491 U.S. 58, 68
(1989). Since the Police Department is not an entity which may be sued, Jefferson
County is the proper party to address the allegations of Matthews’s complaint. . . .
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The County may be held liable for Matthews’s injuries only if those injuries were
the result of an unconstitutional policy or custom of the County. Monell v.
Department of Social Services, 436 U.S. 658 (1978).
Id. at 1049 (emphasis added).
As plaintiffs’ official capacity claim is against Hamilton County, plaintiffs must show
their injuries were the result of an unconstitutional policy or custom of the County, not
specifically the Hamilton County Sheriff. Therefore, to the extent defendant seeks to introduce
Judge Nadel’s deposition testimony “on the question of whether Deputies Hogan and Nobles
were enforcing a Sheriff policy” as opposed to “a Court policy when they arrested [p]laintiffs”
(Doc. 139 at PAGEID 2208), Judge Nadel’s testimony is not relevant. 3 Plaintiffs’ motion in
limine is GRANTED in this respect.
To the extent defendant seeks to introduce Judge Nadel’s testimony for the purpose of
proving he specifically designated the hallways as an area within the purview of Rule 33(D)(6)
or to suggest the hallways were implicitly covered by his order, the Sixth Circuit has already
spoken on this matter, finding it undisputed: “Judge Nadel, who presided at the Hunter
proceedings, never entered an order defining the hallways as ‘ancillary area[s]’ in which
recording was prohibited.” (Doc. 108 at PAGEID 1978). Judge Nadel’s testimony on this point
is simply not relevant, and testimony concerning what other witnesses heard Judge Nadel say or,
more importantly, did not say, is likewise not relevant.
To the extent defendant or plaintiffs may seek to offer Judge Nadel’s testimony for some
other purpose, and if so, whether other witnesses may be permitted to testify for impeachment
purposes, the Court reserves ruling until trial.

For this same reason, plaintiffs’ argument that testimony from Judge Nadel on Hamilton County Sheriff’s policy
lacks foundation (Doc. 143 at PAGEID 2225-2227) is moot.

3

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B. Kimball Perry’s Written Statement
Plaintiffs move to exclude the written narrative statement of Kimball Perry, a deceased
witness. (Doc. 133). Specifically, plaintiffs contend that Perry’s written narrative is
inadmissible unauthenticated hearsay and must be excluded pursuant to Rules 802 and 901.
The parties agree that Perry’s out-of-court statement constitutes hearsay evidence. As
explained above, hearsay must be excluded unless it satisfies an exception to the hearsay rule.
Unlike Judge Nadel, Perry was not deposed before his demise. Defendant contends that Perry’s
statement falls within the purview of the residual hearsay exception contained in Rule 807.
(Doc. 140).
To satisfy Rule 807, a statement must be: (1) “supported by sufficient guarantees of
trustworthiness—after considering the totality of the circumstances under which it was made and
evidence, if any, corroborating the statement;” and (2) “more probative on the point for which it
is offered than any other evidence that the proponent can obtain through reasonable efforts.”
Fed. R. Evid. 807(a). The proponent must also meet the notice requirement contained in Rule
807(b).
In this case, the Court need not address the notice requirement because the defendant is
unable to meet either Rule 807(a) requirement. First, the narrative statement lacks sufficient
guarantees of trustworthiness, considering the circumstances under which it was made. It is
neither signed nor dated by the purported author, Kimball Perry. (Doc. 133-1 at PAGEID 2161).
Although it briefly describes the interaction between plaintiffs and the arresting deputies, the
statement was not solicited by the arresting deputies nor prepared in their presence. (Doc. 76 at
PAGEID 695-96). The statement indicates it was received by the “reporting officer,” B. Hogan,
on July 15, 2014, approximately three weeks after the incident described. (Doc. 133-1 at

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PAGEID 2161, Doc. 76 at PAGEID 695-96). Yet, Deputy Hogan testified that he did not know
if anyone in the Sheriff’s Office asked Perry to prepare a statement; he did not receive the
statement from Perry; and he did not know when (or even if) Perry completed the narrative.
(Doc. 76 at PAGEID 695-96). Indeed, in contesting plaintiffs’ motion to exclude it, the
defendant does not offer any evidence concerning the statement’s origination, including when,
where, or who produced it or how the Sheriff’s Office originally received the report from Perry.
(Doc. 140 at PAGEID 2212-13).
Second, the narrative statement is not “more probative on the point for which it is offered
than any other evidence that the proponent can obtain through reasonable efforts,” as required by
Rule 807(a)(2). The one-paragraph statement purportedly describes events, including
conversations between plaintiffs and the arresting deputies, in the hallway outside the Hunter
criminal proceeding prior to plaintiffs’ arrests. (Doc. 133-1 at PAGEID 2161). Both plaintiffs
and both arresting officers are listed as trial witnesses. (Doc. 135). All four participants to the
events can offer evidence just as probative as that offered by the narrative statement. In addition,
the events described were captured on video, and the video—identified by both parties as
depicting “Hogan, Corbin and Perry”—is listed by both parties as a trial exhibit. (Doc. 135 at
PAGEID 2177, 2178). Because the Perry narrative statement does not satisfy the requirements
of Rule 807(a), it must be excluded as hearsay pursuant to Rule 802.
C. Reference to Prior Court Findings
Plaintiffs move to exclude evidence of prior court Orders in this case, including
references to the conclusion that the arresting deputies had probable cause to arrest plaintiffs.
(Doc. 133 at PAGEID 2158-59). Plaintiffs contend that: (1) such finding is irrelevant to whether
the deputies arrested plaintiffs pursuant to a County custom, policy, or practice; and (2) reference

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to such findings invades the Court’s exclusive province to instruct the jury on the law.
Defendant responds that: (1) since plaintiffs intend to offer evidence that the deputies arrested
plaintiffs and seized their electronic devices without a warrant it would be unduly prejudicial to
defendant not to permit the probable cause finding; (2) the Nieves Court stated that a probable
cause finding generally defeats a First Amendment retaliatory arrest claim as a matter of law;
and (3) reference to the probable cause finding does not invade the Court’s exclusive province of
legal instruction because, factually, it has been determined that the deputies had probable cause
to arrest plaintiffs. (Doc. 138 at PAGEID 2198-2201).
The Sixth Circuit has determined that the deputies had probable cause to arrest plaintiffs
for violating Rule33(D)(6), and the Court and the parties are bound by the Sixth Circuit’s
determination. The only issue left for trial is whether plaintiffs can prove they satisfy the Nieves
exception to a First Amendment retaliatory arrest claim. The Supreme Court in Nieves stated
that a showing of probable cause for the criminal conduct will generally defeat a retaliatory
arrest claim. Id. at 1727. However, there is a narrow exception “for circumstances where
officers have probable cause to make arrests, but typically exercise their discretion not to do so.”
Id. at 1727. In order to invoke the Nieves exception, plaintiffs must present “objective evidence
that [they were] arrested when otherwise similarly situated individuals not engaged in the same
sort of protected speech had not been.” Id. at 1727. A claim under the Nieves exception
necessarily assumes there is probable cause for the arrest, but the circumstances surrounding the
arrest give rise to an inference of a retaliatory motive for the arrest such that the presence of
probable cause does not defeat the First Amendment claim. Thus, probable cause will not be an
issue at trial. Any evidence or arguments that defendant may make regarding the implications of

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the Sixth Circuit’s finding would, in fact, invade the Court’s exclusive providence to instruct the
jury on the law.
Moreover, plaintiffs represent that they have no plans to offer evidence regarding the
absence of a warrant because it is not necessary to their First Amendment claim. (Doc. 145 at
PAGEID 2243). In the event any such evidence were to be introduced at trial, defendant’s
concern with unfair prejudice can be handled through a limiting instruction by the Court.
Thus, the parties will not be permitted to discuss the probable cause finding in their voir
dire or opening statements, and any evidence that may be presented on this issue will be
evaluated in the context of the trial and subject to an appropriate limiting instruction. See In re
E.I. du Pont, 348 F. Supp. 3d at 721.
D. References to Racial Animus
Defendant moves to exclude any reference to racial animus or racial retaliation as a
motivating factor in plaintiffs’ arrests. (Doc. 137). Plaintiffs agree “that they are not claiming
there was a custom, policy or practice of racial discrimination promulgated or endorsed by the
County Sheriff regarding the First Amendment violations here.” (Doc. 142 at PAGEID 2221).
However, plaintiffs contend “that should not bar witnesses from commenting on their factual
observations as to how small and minority media were treated by Hamilton County deputies in
carrying out a custom, policy or practice of barring use of recording devises [sic] in the
courthouse hallways.” (Id. at PAGEID 2222).
Plaintiffs seek to admit evidence in two categories that will likely reference race: (1)
“[f]actual observations about how Plaintiffs were treated in comparison to more established
mainstream media;” and (2) “Enoch’s testimony regarding her work at the time for a small
minority media company . . . as it explains her reason for being present during the Hunter

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proceedings and provides background information for the jury to weigh her credibility and the
substance of her testimony.” (Id.).
Defendant contends that reference to racial animus or disparate treatment of racial or
ethnic groups is irrelevant and/or unduly prejudicial to the defendant and confusing to the jury.
According to the defendant, such evidence should be excluded pursuant to Rules 402 and 403.
(Doc. 137). Defendants further argue that lay witness’s opinion testimony is inadmissible unless
the proponent of the evidence lays a proper foundation. (Doc. 137 at PAGEID 2193-94).
Rule 402 precludes admission of irrelevant evidence, but the definition of relevance is
extremely liberal. Dortch v. Fowler, 588 F.3d 396, 400 (6th Cir. 2009). Rule 403 permits a
court to exclude relevant evidence only “if its probative value is substantially outweighed by a
danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. The Rule 403
balancing test “is strongly weighted toward admission,” and trial courts “enjoy ‘broad discretion’
in making the prejudice determination.” United States v. Asher, 910 F.3d 854, 860 (6th Cir.
2018) (quoting United States v. Carney, 387 F.3d 436, 451 (6th Cir. 2004)). “Unless a party
proves that the evidence is clearly inadmissible on all potential grounds—a demanding
requirement—’evidentiary rulings should be deferred until trial so that questions of foundation,
relevancy and potential prejudice may be resolved in proper context.’” In re Davol, Inc., 546 F.
Supp. 3d at 671 (quoting In re E.I. du Pont, 348 F. Supp. 3d at 721)).
At this juncture, it is premature to broadly rule that all references to race must be
excluded. The Court defers ruling on race-related testimony until trial so that individual
questions of foundation, relevancy, and potential prejudice may be evaluated in context.

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Case: 1:16-cv-00661-KLL Doc #: 151 Filed: 03/02/22 Page: 16 of 16 PAGEID #: 2312

IT IS THEREFORE ORDERED THAT:
1. Plaintiffs’ motion in limine (Doc. 133) is GRANTED IN PART AND DENIED IN
PART;
2. Neither plaintiffs nor defendant will reference the Sixth Circuit’s probable cause finding
during voir dire or opening statements;
3. Defendants’ motion in limine to exclude testimony related to Judge Nadel’s recording
ban statements (Doc. 136) is GRANTED;
4. Defendants’ motion in limine to exclude testimony related to racial animus (Doc. 137) is
DENIED.

3/2/2022
Date: ______________

Karen L. Litkovitz
United States Magistrate Judge

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