Estate of Ashley DiPiazza v. City of Madison et al
Filing
222
OPINION AND ORDER denying ( 160 , 190 ) plaintiff's requests for more specific jury instructions; sustaining in part and overruling in part 204 plaintiff's specific objections to defendants' deposition designations. The court will continue to reserve as to any remaining issues raised by the parties' motions in limine until the final pretrial conference. Signed by District Judge William M. Conley on 6/30/2017. (kwf)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
THE ESTATE OF ASHLEY DIPIAZZA,
Plaintiff,
OPINION AND ORDER
v.
16-cv-60-wmc
JUSTIN BAILEY, GARY PIHLAJA,
and CARY LEEREK,
Defendants.
Following the pretrial conference on May 9, 2017, the court issued a written order
ruling on some outstanding issues while deferring others. (Dkt. #207.) Specifically, and
consistent with that order, the court continues to reserve as to the limited, remaining
issues raised in the parties’ motions in limine until the final pretrial conference on July 6,
2017, with the expectation that counsel will have met and conferred to narrow those
issues as much as possible in advance of that conference. Since defendants have now
responded to plaintiff’s trial briefs requesting more specific jury instructions (dkts.
##160 and 195), however, the court addresses those proposed instructions here. Finally,
the court addresses plaintiff’s objections (dkt. #204) to defendants’ deposition
designations.
OPINION
A. Jury Instructions
As a general matter, both sides will, of course, be free to highlight any particular
facts in evidence and the relevant factors that may be considered as part of the “totality
of the circumstances” analysis, but neither are entitled to more specific legal instructions
that are likely to distract and mislead jurors more than help them correctly apply the law
to the facts of this case. For example, plaintiff requests more specific jury instructions as
to when an officer may lawfully use deadly force, as well as when an officer must cease
using force, if the surrounding circumstances that initially justified the use of force have
changed. For the following reasons, both requests will be denied at this time.
The closing instructions that the court has provided the parties already include the
second sentence of Plaintiff’s Requested Liability Instruction No. 10 (“Officers may not
use deadly force against suicidal people unless they threaten harm to others, including
the officers.” (Dkt. #160, at 5-6.)) The court rejects the remainder of that requested
instruction because it relies on a statement of state law (Wis. Stat. § 939.48(5)) that is
inapplicable to this case and risks confusing jurors. For the same reasons, the court
rejects the addition of more specific language from select court rulings interpreting
“reasonableness” in other factual circumstances of, at best, dubious applicability to this
case.
The court further agrees with defendants that Plaintiff’s Requested Liability
Instruction No. 9 (dkt. #160, at 7) is inappropriate because it too seeks to apply narrow
legal statements from factually distinguishable cases, which involve the apprehension of
“fleeing felons” and the use of non-lethal force against uncooperative, but nonthreatening suspects.
Equally problematic is Plaintiff’s Requested Liability Instruction No. 15,
purporting to address when an officer must stop shooting if the circumstances that
justified the use of deadly force have sufficiently changed. (Dkt. #160, at 8-9 and dkt.
#195, at 1-2.) The parties’ additional briefing on this issue is largely a regurgitation of
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the briefing on defendants’ first and second motions in limine (to preclude evidence of
the number of shots fired, wounds sustained, and bodily orientation of the victim), which
the court has already addressed in part and decided to reserve in part until the final
pretrial conference. (See Defs.’ Resp. Pl.’s Trial Br. No. 4, dkt. #208, at 1-2.) As the
court has already stated, those remaining issues are better addressed after the parties have
conferred and attempted to narrow the scope of any disputes, as well as plaintiff’s short
proffer to the court regarding the evidence it intends to present at trial as to: the amount
of time that elapsed between the first and last shot fired; the number of rounds typically
discharged by two officers in that amount of time; and the general ability of a trained
officer to stop shooting in a high stress environment.
Even then, the court still does not see how plaintiff’s Instruction No. 15 would be
either helpful or appropriate to the jury given the facts and circumstances of this case.
Here, the more general instruction the court has already proposed regarding the totality
of the circumstances would seem to be sufficient:
In deciding whether officers Bailey and Pihlaja used unreasonable force,
you should consider all of the circumstances. The circumstances you may
consider include: the need for the use of force; the amount of force that was
used compared to the need for the use of force; the danger or threat
reasonably perceived by the officers to themselves or to others; and any
efforts made by the officers to temper or limit their use of force. You are
not limited to just these circumstances; you may consider other
circumstances as well.
Although the court is skeptical that anything further or more specific than that would be
appropriate, the parties may present any further argument they wish on this matter at
the final pretrial conference.
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B. Objections to Perales-Saunders Deposition Designations
Plaintiff’s general objection to the admission of the deposition testimony of
Alejandro Perales-Saunders has already been denied in a previous order of this court (dkt.
#207), but the court will address plaintiff’s specific objections to defendants’
designations here. (Dkt. #204.) Those objections are sustained in part and overruled in
part as follows:
Deposition of Alejandro R. Perales-Saunders (March 24, 2017) (Dkt. #106)
Defendants’
Designations
5:8-23
Plaintiff’s Objections (dkt. #204)
Rulings
Relevance
Overruled
7:2-4, 15-17
Relevance (to the extent not known by
the officers at relevant time)
Overruled
8:3-10
Relevance (to the extent not known by
the officers at relevant time)
Overruled
26:18-23
Relevance; improper character evidence
Sustained
27:20-24
Relevance; improper character evidence
Overruled
Relevance (to the extent not known by
the officers at relevant time)
Overruled
30:17 – 31:15
32:2 – 41:22
Cumulative and unreliable
Overruled as to
32:2 – 33:4; 33:19
– 35:15; 35:23 –
40:131
Sustained as to
33:5-18; 35:16-22;
40:14 – 41:22;
Plaintiff may include as counter-designations the additional deposition testimony excerpts
referenced in its footnoted objection to this designation at dkt. #204, at 19 n.2.
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4
50:4-12
Relevance
Sustained
177:19-24
Cumulative
Sustained
184:24 – 185:17
Cumulative
Sustained
190:14 – 191:10
Relevance; improper character evidence
Sustained
ORDER
IT IS ORDERED that:
1) Plaintiff’s requests for more specific jury instructions in its first and fourth trial
briefs (dkts. ##160 and 195) are DENIED at this time. Consistent with the
court’s prior pretrial conference order (dkt. #207), the parties may submit any
proposed revisions to the court’s jury orientation remarks, voir dire questions,
and introductory and closing instructions in advance of the final pretrial
conference.
2) Plaintiff’s specific objections to defendants’ deposition designations (dkt.
#204) are SUSTAINED in part and OVERRULED in part as set forth above.
3) The court will continue to reserve as to any remaining issues raised by the
parties’ motions in limine until the final pretrial conference, as noted above
and ordered in the court’s earlier written rulings (dkts. ##205 and 207).
Entered this 30th day of June, 2017.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge
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