Lee, Anthony et al v. Parshall, Heath et al

Filing 99

ORDER granting defendant's 78 , 79 Motions in Limine; granting in part, denying in part and reserving in part plaintiff's 83 Motion in Limine. Signed by District Judge William M. Conley on 6/10/2019. (nln),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
ANTHONY LEE,
Plaintiff,

OPINION and ORDER

v.
16-cv-524-wmc
HEATH PARSHALL,
Defendant.

This lawsuit arises from an interaction between plaintiff Anthony Lee and City of La
Crosse Police Officer Heath Parshall on the night of July 14 and 15, 2012. Lee claims that
Parshall violated his rights under the Fourth Amendment by using excessive force during his
detention and arrest that resulted in injuries to Lee’s left eye and face. A jury trial is set to
commence on Monday, June 17, 2019. In advance of the final pretrial conference scheduled
for June 12, 2019, the court issues the following opinion and order addressing the parties’
motions in limine.

OPINION
I. PLAINTIFF’S OMNIBUS MOTION IN LIMINE (DKT. #83)
MIL No. 1: Preclude evidence related to events that occurred before Parshall’s arrival
on scene
Lee seeks an order to exclude on relevancy grounds any evidence related to the events
that occurred before Parshall arrived on scene and arrested him. Lee provides no further
explanation for his motion, but Parshall explains that before Lee’s arrest, he and a companion,
Bret Clark, had entered an apartment occupied by two college students, Christopher Squire
and Brad Scholl, at which point a fight ensued. After Lee and Clark were forced out of the

apartment, they then apparently went to an area several blocks away where Lee encountered
Parshall, who had been notified of the fight and responded. Parshall plans to present evidence
that: (1) Scholl punched Lee in the head and body during the fight in the apartment; (2)
Squire and Scholl pushed Lee down the stairs; and (3) Lee then pulled Scholl outside and
punched Scholl hard in the face.
Lee argues that because the Fourth Amendment is an objective standard, only the
information known and available to Parshall at the time he detained and arrested Lee is
relevant to whether the force that Parshall exercised was reasonable under the circumstances.
At best, Lee’s motion is too sweeping in scope. In general, he is correct that information not
known to Parshall at the time of Lee’s detention would be irrelevant to liability. See Doornbos
v. City of Chicago, 868 F.3d 572, 579 (7th Cir. 2017) (question under Fourth Amendment is
whether officer’s conduct was “was objectively reasonable given the information he or she knew
at the time”). Still, information unknown to the officer at the time of the conduct may be
admitted “if it tends to make one side’s story more or less believable,” id., or if “its exclusion
would leave a chronological and conceptual void in the story,” Whitehead v. Bond, 680 F.3d
919, 930 (7th Cir. 2012).
Parshall claims (and presumably will testify) that before encountering Lee, he had
already learned from the police dispatcher that there was a building entry in progress, during
which there had been a physical confrontation resulting in injuries and damage to property.
He was also told that “there was a lot of blood coming from the head and face of one of the
victims.” Accordingly, Parshall argues that this evidence (and that additional evidence of Lee’s
behavior at the apartment) should be admitted to corroborate Parshall’s testimony that Lee
fought and resisted, as well as rebut Lee’s testimony that he was passive and cooperative before
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being was tackled by Parshall for no reason. In addition, Parshall contends that information
about Lee’s injuries during the fight with the college students, although not known to Parshall
at the time, would certainly become relevant during the damages phase of trial.
The court will DENY plaintiff’s motion (1) as to information known to defendant at
the time of plaintiff’s initial detention in the liability phase, and (2) as to the cause of plaintiff’s
injuries, pain, and suffering in the damages phase of trial. Pending a proffer and argument at
the Final Pretrial Conference regarding the relevance of specific evidence, however, the court
will RESERVE as to the admissibility of all other evidence concerning (1) the events leading
up to Parshall’s arrival at the scene in the liability phase of trial, and (2) what additional
evidence would have a bearing, if any, on his claim for punitive damages.
MIL No. 2: Preclude evidence referring to plaintiff as a “robber”
Lee does not identify the specific evidence that he is concerned about, but the parties
have agreed that in reading in portions of the deposition testimony of Shelby Johnson at trial,
the word “individual” will be substituted for the word “robber.” Accordingly, this motion will
be GRANTED as unopposed with respect to Johnson’s testimony and RESERVED in all other
respects, subject to Parshall making a proffer at the Final Pretrial Conference as to how this
specific “evidence” might be offered.

MIL No. 3: Limit evidence of plaintiff’s prior convictions to felonies involving
dishonesty and false statements
Without referencing any specific crimes, Lee moves to limit evidence regarding his prior
convictions to felony convictions and convictions involving dishonesty or a false statement. In
response, Parshall explains that Lee was convicted of three felonies in connection with events
at issue in this lawsuit: (1) party to the crime of burglary; (2) party to the crime of recklessly
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endangering another person’s safety, involving use of a dangerous weapon; and (3) party to the
crime of intentionally causing substantial bodily harm to another person, again involving use
of a dangerous weapon. Lee also was apparently convicted of misdemeanor bail-jumping. The
parties have stipulated to the admission of certain facts about these convictions (to be read or
otherwise published to the jury at trial), including the dates of conviction, the identification of
the crimes at issue, and the sentences Lee received, if no objection is made to this evidence or
any objection is overruled. (Dkt. #73-1 at 3.)
Parshall seeks to publish to the jury only the basic information identified in the parties’
stipulation about Lee’s felony convictions. Federal Rule of Evidence 609 governs the admission
of evidence of criminal convictions used for impeachment of “a witness’s character for
truthfulness.” Evidence of a felony conviction “must be admitted, subject to Rule 403, in a
civil case” if the conviction or release from confinement for the conviction occurred less than
10 years before. Fed. R. Evid. 609(a)(1)(A), 609(b). Evidence for other crimes must be
admitted “if the court can readily determine that establishing the elements of the crime
required proving—or the witness’s admitting—a dishonest act or false statement.” Fed. R.
Evid. 609(a)(2).
I agree that the date of conviction and identification of the crime are admissible, but
the length of Lee’s sentences is not directly related to his character for truthfulness and is likely
to be prejudicial. See Fed. R. Civ. P. 403. Therefore, if Lee takes the stand, defense counsel
may impeach his character for truthfulness by asking whether he was convicted on a particular
date of the four crimes identified in the stipulation. Unless Lee answers “no,” defense counsel
will not inquire further or be allowed to introduce other evidence related to these convictions.
Moreover, the jury will be admonished that it may consider these convictions only for purposes
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of assessing Lee's character for truthfulness, but not for propensity or any other purpose.
Accordingly, this motion is GRANTED subject to the conditions outlined above.

MIL No. 4: Preclude evidence that plaintiff “battered” defendant
In a mirror image to defendant’s MIL No. 1, Lee moves to exclude any evidence that
he committed battery during his interaction with Parshall, having been acquitted of the charge
of battery to a law enforcement officer on August 2, 2012. Lee also argues that in the event
the court admits evidence as to Lee’s alleged attack of Parshall, fairness dictates that he be
allowed to present evidence of his acquittal of the criminal charge. The court agrees with
defendant that Lee’s conduct during the incident is central to determining whether Parshall
used excessive force. However, neither side may introduce evidence that Lee was charged with
or acquitted of battery of a law enforcement officer. The fact that Lee was charged and then
acquitted of the crime of battery to a law enforcement officer is not determinative, or even
particularly probative, of whether he complied with Parshall’s directives during the parties’
interaction or whether Parshall used excessive force against Lee. Not only is the burden of
proof different in a criminal prosecution, but the elements of criminal battery require proof of
intent to cause bodily harm to a peace officer. See State v. Elbaum, 54 Wis. 2d 213, 216–17,
194 N.W.2d 660, 662 (1972).

The fact that the state was not able to prove beyond a

reasonable doubt that Lee intentionally caused Parshall bodily harm does not mean that
Parshall used an unreasonable amount of force to detain and arrest Lee. Accordingly, this
motion will be DENIED.

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II. DEFENDANT’S MOTIONS IN LIMINE
MIL No. 1: Preclude evidence of Lee’s acquittal on the charge that he battered Parshall
(dkt. #78)
This motion will be GRANTED, and both sides will be precluded form introducing
evidence of the battery charge or acquittal for the reasons discussed in conjunction with
plaintiff’s MIL No. 4.

MIL No. 2: Exclude evidence of subsequent excessive force claim against Parshall (dkt.
#79)
Parshall also seeks to preclude evidence related to a lawsuit in which Shane Lancour
alleged that Parshall used excessive force in detaining Lancour in June 2013, almost a year after
Parshall’s interaction with Lee. As a general proposition, evidence of other wrongs or acts is
not admissible to prove the character of a person in order to show conformity therewith. See
Fed. R. Evid. 404(b). While there is a limited exception to this rule: such evidence “may . . .
be admissible for other purposes, such as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident,” Parshall’s interaction with
Lancour cannot be probative of Parshall’s state of mind or intent since it occurred almost a
year after the Lee incident. Moreover, Parshall’s subjective intent is irrelevant because the
standard for Fourth Amendment liability is one of an objective officer and not based on the
motivation of a particular defendant. Finally, whatever arguable probative value there may be
with respect to this evidence, Parshall is correct that it is “substantially outweighed” by the risk
of undue prejudice, confusing the issues, wasting time, and possibly misleading the jury. See
Fed. R. Evid. 403. Accordingly, this motion will be GRANTED.

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III. ADDITIONAL MATTERS
As required by the court’s procedures for pretrial submissions, defendant provided
deposition designations. Plaintiff has neither objected to those designations nor filed any
counter-designations. The parties should meet and confer before Wednesday’s Final Pretrial
Conference and be prepared to advise the court if a ruling on admissibility will be needed.

ORDER
IT IS ORDERED that:
1. Plaintiff’s omnibus motion in limine (dkt. #83) is GRANTED IN PART, DENIED
IN PART, and RESERVED IN PART as set forth above.
2. Defendant’s motions in limine ##1 and 2 to preclude evidence of plaintiff’s battery
acquittal (dkt. #78) and evidence of a subsequent excessive force claim against defendant (dkt.
#79) are GRANTED.
Entered this 10th day of June, 2019.
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge

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