Tucker v. Oklahoma City City of et al
Filing
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ORDER granting in part and denying in part 89 Motion in Limine; denying 94 Motion in Limine. Signed by Honorable Timothy D. DeGiusti on 5/2/2014. (mb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
CHRISTOPHER L. TUCKER,
Plaintiff,
vs.
CITY OF OKLAHOMA CITY, et al.,
Defendants.
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Case No. CIV-11-922-D
ORDER
Before the Court are the Motion in Limine of Defendants Bemo, Brown, Nelson, and
Cooper [Doc. No. 89], and Plaintiff’s Motion in Limine [Doc. No. 94]. The Motions are
fully briefed and at issue.
The jury trial of this civil rights action will involve a claim under 42 U.S.C. § 1983
that the moving defendants, who are Oklahoma City police officers, used excessive force in
violation of the Fourth Amendment in arresting Plaintiff, and a supplemental state law claim
that three officers are liable for intentional infliction of emotional distress. Each side,
Plaintiff and Defendants, seeks to prohibit the opposing side from introducing evidence and
argument regarding certain matters, primarily on grounds that the matters are irrelevant under
Rule 401, Fed. R. Evid., or unduly prejudicial under Rule 403.
A.
Plaintiff’s Motion
Plaintiff seeks to exclude evidence regarding the following matters: 1) the source of
payments for his attorney fees and expenses in this case or any prior court proceedings,
including a municipal court case related to the incident; 2) the time or circumstances under
which Plaintiff engaged an attorney in this case; 3) Plaintiff’s failure to produce or call a
particular witness; 4) other litigation by Plaintiff related to the underlying events, including
a state court action against attorneys who defended his municipal charge; 5) Plaintiff’s “mug
shots” or photos taken by police of Plaintiff; and 6) improper evidence regarding Defendants’
character, such as awards, commendations, letters of appreciation, or similar evidence.
Defendants have responded in opposition to the Motion only with regard to the
exclusion of photographs taken by police officers. Defendants state that Defendant Cooper
took photographs of Plaintiff at the scene for a use-of-force investigation and that this
photographic evidence of Plaintiff’s physical condition immediately after his encounter with
the officers is relevant to both the force used and the injuries sustained. Regarding the
remaining subjects of Plaintiff’s Motion, Defendants state they do not anticipate offering
such evidence, except as it may become necessary for impeachment or rebuttal purposes.
Upon consideration of the parties’ arguments, the Court finds that the photographs
taken by Defendant Cooper are relevant to the trial issues and that the probative value of this
evidence is not outweighed by a potential for unfair prejudice, as argued by Plaintiff in his
Motion. See United States v. Cerno, 529 F.3d 926, 935 (10th Cir. 2008) (“Under Rule 403’s
balancing test, it is not enough that the risk of unfair prejudice be greater than the probative
value of the evidence; the danger of that prejudice must substantially outweigh the
evidence’s probative value.”) (emphasis in original). Therefore, to this extent, Plaintiff’s
Motion is denied.
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Regarding other subjects, Plaintiff’s Motion presently raises no issue for decision by
the Court. If during the trial, however, other evidence addressed by Plaintiff’s Motion should
become relevant to credibility or other issues to be decided, defense counsel is instructed to
give advance notice outside the presence of the jury to the Court and opposing counsel of
their intent to introduce such evidence so that a timely evidentiary ruling can be made.
B.
Defendants’ Motion
Defendants seek to exclude evidence regarding the following matters: 1) written
policies and procedures of the Oklahoma City Police Department; 2) an administrative
investigation of the subject incident; 3) past disciplinary actions and other complaints of
excessive force against Defendants; 4) other instances involving the use of tasers by
Oklahoma City police officers; 5) a former defendant in this case, John Blumenthal; and
6) matters addressed in the Court’s summary judgment order, as discussed infra.
1.
Police Policies and Procedures
Plaintiff has listed as trial exhibits several written policies adopted by the City of
Oklahoma City’s police department. These documents currently appear in the case record
as exhibits to a motion for summary judgment filed by the City of Oklahoma City (and
Plaintiff’s response thereto), which was granted. The defendant officers contend that
municipal policies and procedures are irrelevant to the trial issues and, to the extent a
particular policy sets a higher standard of conduct than required by the Constitution, the
admission of the policy will confuse the jury regarding the issues to be decided. Defendants
argue that introducing the applicable operating procedure regarding the use of tasers, for
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example, may divert jurors’ attention from the constitutional standard and “subject the
defendant officers to unfair prejudice based on ‘unrealistic second guessing’ of the decisions
made at the scene.” See Defs.’ Motion [Doc. No. 89] at 6.1
In opposition to this aspect of Defendants’ Motion, Plaintiff attempts to distinguish
the legal authority on which it is based, Tanberg v. Sholtis, 401 F.3d 1151 (10th Cir. 2005).
He argues that because some of the municipal policies in this case incorporate constitutional
standards, these policies are relevant to show Defendants’ conduct was unreasonable and
violated the Fourth Amendment.
The Court is not persuaded by Plaintiff’s argument. The constitutional standard
governing excessive force claims under the Fourth Amendment is “objective reasonableness
under the circumstances.” See Graham v. Connor, 490 U.S. 386, 399 (1989). The jury will
be instructed on how to determine whether this standard was violated by the officers in this
case. The requirements of municipal policies governing the officers’ conduct have no
bearing on this issue, regardless whether the policies are consistent with or more stringent
than what the Fourth Amendment requires. See Tanberg, 401 F.3d at 1163-64. Nor is the
officers’ knowledge of the appropriate standard relevant to a § 1983 claim, as argued by
Plaintiff, because the subjective knowledge or intent of the officers has no place in the
constitutional inquiry. See Tanberg, 401 F.3d at 1168 (“Under this objective standard,
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Defendants argue that an amended taser policy adopted after Plaintiff’s arrest should be excluded
as a subsequent remedial measure that is inadmissible under Rule 407. Because Plaintiff makes no response
to this argument, the Court understands the taser policy proposed for admission is the one in effect in July,
2010, which Plaintiff submitted in opposition to summary judgment.
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evidence tending to show [an officer’s] subjective state of mind is irrelevant to the jury’s
proper inquiry.”). Plaintiff does not argue that this evidence is admissible with regard to his
state law tort claim.2 Therefore, the Court finds the municipal policies at issue are irrelevant
to the trial issues addressed by the parties.
For these reasons, this part of Defendants’ Motion is granted.
2.
Administrative Investigation
Defendants also seek to exclude evidence regarding an internal investigation by the
Oklahoma City Police Department of the officers’ use of force against Plaintiff, including
the testimony of witnesses who participated in the investigation. Defendants again rely
primarily on Tanberg, in which the Tenth Circuit stated:
That an arrest violated police department procedures does not make it more or
less likely that the arrest implicates the Fourth Amendment, and evidence of
the violation is therefore irrelevant. If [the defendant officer] violated the
[standard operating procedure] governing the use of force in effecting arrest,
that fact might well be pertinent to the . . . Police Department’s future
decisions to promote, retain, or discipline him; it is not relevant to determining
if Plaintiffs’ arrest violated the reasonableness requirement of the Fourth
Amendment.
Tanberg, 401 F.3d at 1163-64. In Tanberg, however, evidence regarding the investigation
was also excluded because it involved “contradictory results” in which a disciplinary
decision was reversed by a review committee, and evidence concerning the “convoluted
proceedings” would have been a “time-consuming detour through a tangential and
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Notably, however, the legal standard governing Plaintiff’s claim of intentional infliction of
emotional distress measures the defendant’s conduct by reference to “an average member of the community.”
See Computer Publ’ns, Inc. v. Welton, 49 P.3d 732, 735 (Okla. 2002). Thus, police department policies
regarding officer conduct also appear to have no bearing on this claim.
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tendentious issue.” See id. at 1164-65. Plaintiff argues that this case does not involve a
similar potential for waste of trial time or jury confusion.
Although no party informs the Court regarding the facts of the investigation,
Defendants do not disagree that the investigation in this case was not “convoluted.” They
take the position, however, that “administrative investigations should be presumed to be
inadmissible in § 1983 cases” and “Plaintiff should have to overcome this presumption.” See
Defs.’s Reply Br. [Doc. No. 102] at 4. Defendants’ only citation of authority for such a
presumption is Tanberg.
Upon consideration, the Court finds that Defendants’ argument overstates the holding
of Tanberg. The Tenth Circuit did not adopt an evidentiary presumption for civil rights cases
regarding departmental investigations of police officers’ conduct. As with any proposed
evidence, however, the first question to be decided is whether it is relevant to the trial issues.
Plaintiff argues that evidence regarding the investigation in this case is admissible to prevent
jury speculation about whether an investigation occurred and what conclusion was reached.
He also argues that information from the investigation may be relevant for impeachment
purposes, and may assist the fact-finder in determining “what exactly took place during
Plaintiff’s arrest, given the high probability of conflicting and contradictory testimony
between both Plaintiff and Defendants and between and among Defendants themselves.” See
Pl.’s Resp. Br. [Doc. No. 100] at 6.
A report of the investigation conducted in this case was submitted as part of the
summary judgment record as a sealed exhibit [Doc. No. 62]. The report reflects statements
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of the participant officers, their supervisor, and others, and materials that would not
otherwise be admissible, such as Plaintiff’s “rap sheet.” As to each of Defendants Bemo,
Brown, and Nelson, the conclusion was that the use of force was consistent with
departmental policies and guidelines, including the taser policy. It is unclear how the fact
that an investigation occurred or that these conclusions were reached would be helpful to the
jury. Jurors will be instructed that they are required to base their decision on trial evidence
and speculation is prohibited. Accordingly, the Court finds that Plaintiff has failed to explain
why evidence regarding the investigation is relevant to his claims.
As to potential uses of parts of the investigation (such as witness statements) for
impeachment purposes, Plaintiff does not identify any inconsistencies between information
obtained in the investigation and anticipated testimony of witnesses. Thus, the Court is
presently unable to evaluate Plaintiff’s proposed use of the investigation for that purpose.
Accordingly, the Court will grant this part of Defendant’s Motion without prejudice to
revisiting the issue at trial, if appropriate. Plaintiff’s counsel is instructed to give advance
notice to the Court and opposing counsel outside the presence of the jury of counsel’s intent
to utilizing evidence from the internal investigation for impeachment purposes so that a
timely evidentiary ruling can be made.
3.
Prior Disciplinary Actions and Other Uses of Force
Defendants contend evidence that some officers have previously been disciplined or
accused of excessive force is inadmissible under Rule 404(b). They argue that this evidence
concerns other acts or wrongs, and is not admissible for any purpose permitted by
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Rule 404(b) because an individual officer’s intent or motive is irrelevant under the objective
standard applicable to Plaintiff’s § 1983 claim. Defendants again rely on Tanberg, in which
the Tenth Circuit held that the trial court properly excluded evidence of other instances where
the defendant officer had allegedly used excessive force. See Tanberg, 401 F.3d at 1168-69.
Without citing any legal authority, Plaintiff’s response brief presents an argument that
is inconsistent with Tanberg. He argues that prior violations of departmental policies or the
Fourth Amendment are “relevant to prove knowledge of the constitutional standard, intent
to violate that standard, and absence of mistake with respect to violations that occurred
during Plaintiff’s arrest.” See Pl.’s Resp. Br. [Doc. No. 100] at 7 (emphasis omitted).
The Court is not persuaded by Plaintiff’s argument. Under the objective standard
applicable to his § 1983 claim, “evidence tending to show [a defendant officer’s] subjective
state of mind is irrelevant to the jury’s proper inquiry.” See Talberg, 401 F.3d at 1168.
Further, to the extent that Defendants’ intent is relevant to Plaintiff’s state law tort claim
(which he does not address in his brief), “evidence suggesting that [a defendant officer] had
been accused of using excessive force in making other arrests could also suggest to a jury
that [the officer] is prone to the use of excessive force,” and “the potential of the other acts
evidence to create unfair prejudice is clear.” Id. at 1169. In the absence of any argument by
Plaintiff showing why the probative value of any particular evidence justifies its admission,
the Court finds that evidence of Defendants’ prior disciplinary infractions or other complaints
of excessive force should be excluded.
For these reasons, this part of Defendants’ Motion is granted.
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4.
Other Taser Incidents
Defendants also ask the Court to exclude evidence of unrelated incidents in which
Oklahoma City police officers have used tasers to subdue or arrest other individuals. They
contend this evidence has no bearing on any trial issue because no claim of municipal
liability remains. Plaintiff makes no response to this argument. Therefore, Defendants’
Motion is granted with respect to other taser incidents.
5.
John Blumenthal
Defendants seek to prevent Plaintiff from calling a police officer who was originally
named as a defendant, John Blumenthal, as a trial witness. The Court granted summary
judgment to Officer Blumenthal based on the lack of any admissible evidence that he
participated in the use of force against Plaintiff. Defendants anticipate that Plaintiff intends
to ask Officer Blumenthal whether he was present at the scene only to impeach his testimony
with evidence of a prior conviction “and thereby cast aspersions by association on the other
officers.” See Defs.’ Motion [Doc. No. 89] at 13. They argue that “any testimony by or
about Officer Blumenthal should be excluded under Rule 403.” Id. at 14.3 Alternatively,
Defendants assert that if Plaintiff is allowed to call Officer Blumenthal as a witness, Plaintiff
should be prohibited from introducing evidence “regarding prior complaints against him, and
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Defendants also express concern that Plaintiff will employ this same tactic concerning another
listed witness, Jay Digby, whom Plaintiff proposes to call to testify about his part in the administrative
investigation of Plaintiff’s complaint against the officers and to impeach him with evidence of misconduct.
The Court has ruled that evidence of the administrative investigation is inadmissible, and Plaintiff has not
identified any other basis for calling Mr. Digby as a witness. See Pl.’s Resp. Br. [Doc. No. 100] at 8.
Therefore, the Court finds that the admissibility of Mr. Digby’s testimony (or related impeachment evidence)
is no longer a contested issue and is moot.
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any evidence regarding his termination and reinstatement,” including a criminal conviction.4
Defendants acknowledge that evidence of a witness’s criminal conviction may be admitted
under Rule 609, but they argue it should be excluded with regard to Officer Blumenthal
pursuant to Rule 403.
Plaintiff asserts that he should be permitted to question Officer Blumenthal about
Officer Blumenthal’s presence at the scene and what he observed. Plaintiff proposes to
introduce impeachment evidence if Officer Blumenthal denies he was present so the jury can
“conclude that Mr. Blumenthal was present and draw whatever inferences they believe are
reasonable from his silence as to the events of that evening and the conduct of his brother
officers.” See Pl.’s Resp. Br. [Doc. No. 100] at 8 (emphasis in original). Plaintiff also
contends Officer Blumenthal’s testimony might be useful for impeachment purposes with
respect to Defendants who testify about whether or not Officer Blumenthal was present.
Although the proposed Final Pretrial Report filed by the parties reflects that Officer
Blumenthal was deposed, no party informs the Court about the substance of his testimony
regarding the events in question, or provides any factual basis for evaluating the relevance
of his anticipated testimony. Although it is generally improper to call a witness for the sole
purpose of impeaching that witness, on the present record, the Court cannot say that Plaintiff
should be prohibited from calling Officer Blumenthal as a witness. Similarly, the Court has
insufficient information to conduct a Rule 403 balancing test regarding any prior criminal
conviction of Officer Blumenthal. Accordingly, the Court finds that these issues must be
decided in the context of the trial evidence. The Court directs Plaintiff’s counsel, however,
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The crime of which Officer Blumenthal was convicted is not identified.
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to seek a ruling on the issues raised by Defendant’s Motion regarding Officer Blumenthal by
providing advance notice outside the presence of the jury before calling him as a witness.
6.
Matters Allegedly Resolved by the Summary Judgment Order
Defendants assert that Plaintiff should be precluded from presenting some arguments
and evidence based on various parts of the Order of September 20, 2013, which granted
summary judgment to Defendants on § 1983 claims related to Plaintiff’s arrest and certain
state law claims. Specifically, Defendants contend Plaintiff should be prohibited from
speculating that records of Defendants’ taser use were falsified, that Officer Bemo was
reprimanded for contacting the Council on Law Enforcement Education and Training
(CLEET) about Plaintiff, and that Officer Bemo contacted Plaintiff’s employer (Norman
Regional Hospital). Defendants also contend Plaintiff (or his counsel) should be prohibited
from arguing that Plaintiff had no obligation to stop for police officers or they had no right
to pursue him.
In response to these issues, Plaintiff asserts, correctly, that the September 20 Order
does not preclude the admission of evidence that is relevant to the remaining factual issues.
He argues that Officer Bemo’s contact with CLEET is relevant to his claim of intentional
infliction of emotional distress and that the underlying circumstances of his arrest are
relevant to his excessive force claim.
Upon consideration of Defendants’ arguments, the Court has some concern that they
overstate the significance of the September 20 Order. Any factual findings stated by the
Court were based on the summary judgment record presented by the parties. If Plaintiff has
additional evidence or evidence different from what was previously submitted, he is not
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precluded from proffering it for trial. Further, in denying summary judgment on Plaintiff’s
claim of intentional infliction of emotional distress, the Court did not make any ruling
regarding evidence relevant to that claim, as argued by Defendants. On the other hand,
Plaintiff’s counsel must conform his arguments to the trial evidence and correct statements
of the law, including the Court’s ruling that Defendants had probable cause to arrest Plaintiff.
To this limited extent, Defendant’s Motion regarding matters resolved by the summary
judgment order is granted.
IT IS THEREFORE ORDERED that Defendants’ Motion in Limine [Doc.
No. 89] is GRANTED in part and DENIED in part, as set forth herein, and Plaintiff’s Motion
in Limine [Doc. No. 94] is DENIED.
IT IS SO ORDERED this 2nd day of May, 2014.
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