Rivera, Briana v. City of Madison et al

Filing 150

ORDER granting 60 Motion in Limine; denying 61 Motion in Limine; denying as moot 62 Motion in Limine; denying 63 Motion in Limine; granting in part and denying in part 64 Motion in Limine; granting in part and denying in part 65 Motion in Limine; granting in part and denying in part 66 Motion in Limine; denying 67 Motion in Limine; granting 68 Motion in Limine; granting 69 Motion in Limine; denying without prejudice 70 Motion in Limine; granting 71 Motion in Limine; grant ing 72 Motion in Limine; denying 73 Motion in Limine; granting in part and reserving in part 74 Motion in Limine; granting 76 Motion in Limine; granting in part and denying in part 77 Motion in Limine; granting 78 Motion in Limine; granti ng 79 Motion in Limine; granting 80 Motion in Limine; denying 81 Motion in Limine; granting 91 Motion in Limine; granting in part and denying in part 94 Motion in Limine; granting in part and denying in part 95 Motion in Limine; denying as moot 96 Motion in Limine; granting 105 Motion in Limine; and Reserving 106 Motion in Limine. Signed by District Judge William M. Conley on 9/12/2018. (jls)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
BRIANA RIVERA,
Plaintiff,

OPINION and ORDER

v.
16-cv-673-wmc
OFFICER GABRIEL HECK and
OFFICER DAVID WHITE,
Defendants.

Plaintiff Briana Rivera brings claims against Madison Police Officers Gabriel Heck and
David White under the Fourth Amendment, as well as state law for assault and battery. A jury
trial is set to commence on Monday, November 13, 2018. In advance of the final pretrial
conference scheduled for October 30, 2018, the court issues the following opinion and order
addressing the parties’ motions in limine, beginning with their respective motions to exclude
the testimony of each other’s police practices expert under Federal Rule of Evidence 702 and
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

OPINION
I. MOTIONS TO EXCLUDE EXPERT TESTIMONY
In its gatekeeping role, a federal court may not admit expert opinions unless: (1) the
expert is qualified; (2) the opinions are based on reliable methods and reasoning; and (3) the
opinions will assist the jury in deciding a relevant issue. See Myers v. Ill. Cent. R. R. Co., 629
F.3d 639, 644 (7th Cir. 2010). To meet the third requirement, an expert “must testify to
something more than what is obvious to the layperson[.]” Dhillon v. Crown Controls Corp., 269
F.3d 865, 871 (7th Cir. 2001) (citation omitted). In this instance, although the parties’ experts

are qualified to render the opinions set forth in their respective reports, the court concludes
that neither offer opinions that are likely to be of assistance to the jury, especially after
considering the risk that those opinions may usurp the jury’s role as the fact finder.
Additionally, any limited probative value of the proposed expert testimony would be
substantially outweighed by the danger of unfair prejudice under Federal Rules of Evidence
403. Therefore, the court will exclude both retained police practices experts.
A. Background
The court begins by reviewing the specific claims remaining and the factual disputes yet
to be decided by the jury. This case arises out of a domestic incident which occurred on January
25, 2014, and the background of which is largely undisputed.1 At around 2:00 a.m. on that
date, Rivera and her teenage sister arrived at the third-floor apartment of Modou Sonko, a
friend of plaintiff’s then-fiancé (now husband), Vickson Magada. A few hours earlier, Magada
had gone to visit there with his and Rivera’s 2-year old daughter. Rivera was understandably
worried about her daughter being up so late, and she had attempted to call Magada several
times, but Magada had not answered.
When Rivera and her sister arrived at the apartment, Rivera was upset and engaged in
a verbal dispute with Magada. Retrieving their daughter, Rivera then descended as far as the
second floor of the apartment building before Magada caught up with her. A second-floor
resident of the apartment building opened her door to see Rivera against a wall with Magada
appearing ready to strike her. The neighbor told Magada that he better not hit her and that

For a more detailed summary of the relevant facts, the reader should refer to the court’s summary
judgment decision. (Dkt. #57.)
1

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she was calling the police. Magada then released Rivera, who ran downstairs to the parking lot
with her daughter and sister. Magada followed, and they all left together.
Madison Police Officer White was first dispatched to the apartment building in
response to the neighbor’s call. Once there, Officer White interviewed both the caller and
Sonko. The latter told White that Rivera had an anger management problem. Sonko further
reported that after arriving at his apartment, Rivera yelled at both Magada and her daughter,
slapped the child, threw a shoe at Magada, and pushed him. White then proceeded to Rivera
and Magada’s home, which was located in a different apartment complex.
When Officer White arrived, Rivera and Magada were both calm. They permitted
White to come into the small, first-floor entryway of their second-floor apartment. Officer
White agreed to stay downstairs in the entryway and sent Magada upstairs to the living area
so White could speak to Rivera alone. Shortly thereafter, defendant Officer Heck arrived.
Letting Heck into the entryway of the apartment, White apparently directed Heck to interview
Magada, who was still upstairs. However, when Officer Heck went upstairs, Rivera objected,
and she began yelling up the stairs for both Magada and Heck to come downstairs and talk
outside.
The parties dispute the details of what happened next, but agree that Officer Heck
eventually came back down the stairs, at which point a physical altercation began between
Rivera and Heck. Rivera maintains that Heck ran down the stairs, grabbed her, put her in
handcuffs, and slammed her head against the wall, while also pulling on her hair multiple times.
Defendants agree that Officer Heck ran down the stairs and detained Rivera, but only because
he saw her pushing Officer White, who then had grabbed Rivera’s arm to prevent her from

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ascending the stairs. Defendants also say that Rivera actively resisted their efforts to restrain
her, both by pulling her arms away and thrusting her head towards them.
Ultimately, Rivera was arrested and transported to Dane County jail, where she was
booked for the crime of resisting/obstructing under Wis. Stat. § 946.41(1). She was later
prosecuted for disorderly conduct under Wis. Stat. § 947.01(1), and acquitted by a jury,
although the allegations against her related only to her conduct at Sonko’s apartment, rather
than any of her alleged actions at her own apartment.
In this lawsuit, Rivera raised the following claims: (1) defendants had no probable cause
to arrest her; (2) even if defendants had probable cause, defendants acted unlawfully by
arresting her in her home without a warrant, consent or exigent circumstances; (3) defendants
used excessive force while arresting her; (4) defendants committed assault and battery in
violation of state law; and (5) the City of Madison failed to properly train, supervise and
discipline defendants. The court granted defendants summary judgment on their defense of
qualified immunity with respect to Rivera’s false arrest claim (count 1), concluding that both
White and Heck had at least arguable probable cause to believe Rivera had engaged in
disorderly conduct at Sonko’s apartment. (Dkt. #57 at 17.) The court also granted summary
judgment to the City on Rivera’s Monell claim for failure to train, supervise and discipline
defendants properly (count 5). This leaves Rivera’s unlawful arrest, excessive force and state
law claims for trial (counts 2-4).
B. Expert Opinions
1.

Ernest Burwell

Defendants move to exclude the opinions of plaintiff’s expert, Ernest Burwell, a former
deputy sheriff with the Los Angeles Sheriff’s Department, arguing that Burwell lacks the
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qualifications of an expert, and that even if he could offer expert testimony about police
practices, his opinions in this case are not based on his expertise, but rather consist primarily
of statements about how the jury should resolve factual disputes. (Dkt. #60.)
As an initial matter, the assertion that Ernest Burwell’s some 30 years’ experience as a
Los Angeles Deputy Sheriff, SWAT team member and trainer does not qualify him as an expert
in police practices is laughable. Moreover, the defendants’ brief is also not particularly helpful
in analyzing the admissibility of Burwell’s actual opinions and the basis for them, which are
set forth in his written report. Instead, defendants’ brief largely attacks statements Burwell
made during his deposition in response to questions posed by defense counsel. As such, much of
defendants’ brief attacks a strawman of their own making. Indeed, defense counsel repeatedly
asked questions that were bound to elicit inadmissible responses from Burwell.

As such

questions would not be permitted at trial, Burwell’s responses are wholly unhelpful in
determining the admissibility of his actual opinions set forth in his expert report and statements
in his deposition relating directly to those opinions or the underlying basis for them. That
being said, the court’s own review of Burwell’s expert report, in conjunction with plaintiff’s
response to defendants’ motion, raise substantial concerns that Burwell intends to offer
opinions that are unlikely to assist the jury in resolving the remaining factual issues in this case,
and even worse, would usurp the jury’s role in doing so. Neither is permissible.
Specifically, according to his report, Burwell purports to have formed opinions based
on his review of numerous documents and other evidence of record, including the 911 call,
police reports of the incident, photographs of Rivera’s injuries, documents relating to Rivera’s
criminal jury trial, depositions of the parties, Madison Police Department standards, California
training standards and his own experience. Based on that review, Burwell proposes to testify
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that: (1) Rivera was falsely arrested because Officers White and Heck lacked probable cause
to arrest her; (2) Officer White had no reason to grab Rivera; (3) Officers White and Heck
used excessive, unnecessary and unreasonable force on Rivera; (4) Officers White and Heck
had no reason to detain or arrest Rivera; (5) there were no exigent circumstances that required
the officers to enter Rivera’s home without a warrant; (6) Madison Police Department failed
to supervise and conduct a proper investigation of the incident; (7) Officers White and Heck
lost their temper when dealing with Rivera; (8) Officer White should have intervened and
prevented Heck from physically harming Rivera; (9) Rivera was held in handcuffs for too long;
(10) the officers should have called Rivera and Magada on the phone before going to their
home; (11) Officer White did not complete an accurate police report regarding the arrest of
Rivera; and (12) Rivera’s arrest did not comply with Madison Police Department policy.
(Burwell Rep., dkt. #14, at 8-22.)
Several of these opinions are plainly improper legal conclusions, not to mention already
resolved as a matter of law at summary judgment. Specifically, the court already concluded that
defendants had arguable probable cause to arrest Rivera; no exigent circumstances existed for
entry into Rivera’s home; and there was no evidence showing that the City failed to supervise
its officers or investigate the incident properly. Furthermore, some of Burwell’s other opinions
address issues that are not relevant to the remaining claims in this case and would be distracting
or confusing, such as whether Rivera was held in handcuffs for too long after she was arrested
and whether Officer White or Heck should have contacted Rivera or Magada by telephone.
Rivera has not raised a claim of excessive force based on handcuffing, and whether some
policing standards advise officers to contact individuals involved in domestic disputes by

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telephone, Officers White or Heck’s failure to do so is not probative of whether they used
excessive force on her later.
Setting aside these patently inadmissible opinions, the only opinions in Burwell’s report
that appear to be relevant to the remaining issues concern the level of force Officers White and
Heck applied to Rivera. Indeed, Burwell’s opinion about the use of force is the only opinion
that Rivera specifically defends in her brief in opposition to the motion to exclude. (Plt.’s Opp.
Br., dkt. #125, at 6.)
However, as currently formulated, Burwell’s opinion about the defendants’ use of force
is based primarily on his attempt to resolve factual disputes regarding what happened during
the incident, including offering his own opinions regarding the credibility of witnesses and the
parties’ states of mind, rather than any expertise regarding proper police practice. For example,
Burwell’s opinion that “Officers White and Heck used excessive, unnecessary and unreasonable
force” on Rivera, (Burwell’s Rep., dkt. #14, at 10), is based in part on his accepting Rivera’s
version of events as true: Rivera “was never a threat to the officers” and “was not making any
movements toward the officers”; “Officers White and Heck lost their temper,” “used force on
[Rivera] for no reason,” “pulled [Rivera’s] hair,” and repeatedly pushed her against the wall,
despite her presenting no risk of harm to the officers. (Burwell’s Rep., dkt. #14, at 10, 12, 16,
18.) Witness credibility should be evaluated by the jury, not an expert. See United States v.
Hall, 165 F.3d 1095, 1107 (7th Cir. 1999) (“[T]he credibility of eyewitness testimony is
generally not an appropriate subject matter for expert testimony because it influences a critical
function of the jury—determining the credibility of witnesses.”); Fields v. City of Chicago, No.
12 C 1306, 2018 WL 1652093, at *6 (N.D. Ill. Apr. 5, 2018) (“An expert witness may not

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usurp the jury’s function to weigh evidence and make credibility determinations.”) (citation
omitted). As a result, all of these opinions usurp the jury’s function, and they are out as well.
Additionally, Burwell opines that Officers White and Heck were trained to respond to
potential victims of domestic violence by using more compassionate and respectful behavior
than they used, such as using verbal commands to gain compliance. (Burwell Rep., dkt. #14,
at 17.) Aside from impermissibly purporting to know what happened, this opinion is also not
particularly helpful for resolving the remaining factual disputes before the jury. As to the first,
Officers White and Heck testified that they were not disrespectful to Rivera and Magada, and
they used force only after Rivera lost control. At most, Burwell could opine on whether the
defendants conduct complied with police policy assuming the jury found Rivera’s version of
events to be more credible, unless he is also opining that White and Heck were not trained to
use force against a person who is flailing her arms around and pushing or attempting to headbutt an officer on a stairway.
Finally, this case does not present complex issues about an officer’s use of deadly (or
even severe) force was consistent with their training. As the Seventh Circuit has already
explained, “[e]xpert testimony about police standards may appropriately assist the jury in
resolving some excessive-force questions, but sometimes evidence of this type is unhelpful and
thus irrelevant, particularly when no specialized knowledge is needed to determine whether the
officer's conduct was objectively unreasonable.” United States v. Brown, 871 F.3d 532, 534 (7th
Cir. 2017). For example, if a case involves use of force “peculiar” to law enforcement, such as
“a gun, a slapjack, mace, or some other tool,” expert testimony may be useful, but “[i]n many
cases evaluating an officer’s conduct will draw primarily on the jury’s collective common sense.”
Id. “The jury’s common experience will suffice, for example, when ‘police use[ ] their bare
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hands in making an arrest, the most primitive form of force.’” Florek v. Vill. of Mundelein, Ill.,
649 F.3d 594, 602 (7th Cir. 2011). This would appear to be just such a case.
Indeed, in Brown, the Seventh Circuit affirmed the district court’s exclusion of expert
testimony where an officer was accused of hitting “a motionless man in the face with his fist
and continu[ing] to beat and kick him before placing him under arrest.” 871 F.3d at 539. The
court explained that the officer “didn’t use a sophisticated tool or technique,” and thus, the
proposed expert’s “explanation of the Chicago Police Department’s Use of Force Model would
have added nothing that jurors could not ascertain on their own by viewing the surveillance
videotape and applying their everyday experience and common sense.” Id.; see also Florek, 649
F.3d at 602-03 (contrasting usefulness of expert testimony regarding “whether it was
reasonable for police to use a canine officer (and its canines) in bringing a suspect to heel,”
with relatively unhelpful expert testimony regarding “knock-and-announce rule,” noting as to
the latter that “everyday experience teaches people how long it takes to walk from room to
room”).
In this instance, Rivera’s excessive force claim involves a classic “he-said, she-said”
dispute about pushing and hair-pulling. Specifically, Rivera will testify that Officer Heck
unnecessarily slammed her into a wall and pulled her hair repeatedly, both before and after
handcuffing her, solely because she was yelling at him to leave her house after he entered the
upstairs of her home over her objections. In contrast, defendants will say that Rivera was outof-control, resistive, refused straightforward verbal and non-verbal cues, pushed Officer White
repeatedly and could have injured both officers. Ultimately, the jury will have to decide which
version of this “most primitive form of force” is correct. The court is unpersuaded that police
expertise will be of much use to the jury in resolving this dispute.
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Perhaps most telling, despite being given every opportunity to do so, the plaintiff has
yet to point to any of Mr. Burwell’s specific, proffered opinions that would be helpful to the
jury in resolving this factual dispute. Even if Burwell’s testimony did satisfy Daubert, the court
concludes that any arguable probative value of the opinions contained in his expert report is
substantially outweighed by the danger of unfair prejudice and confusion under Fed. R.
Evid. 403. As previously discussed, Burwell’s entire report does little more than summarize
the evidence and offer an opinion about what the jury should ultimately decide, thereby
impermissibly inviting the jurors to substitute their own independent judgment with that of an
expert’s conclusion. See Thompson v. City of Chicago, 472 F.3d 444, 458 (7th Cir. 2006)
(“Introducing two experts to testify that Officer Hespe used excessive force would have induced
the jurors to substitute their own independent conclusions for that of the experts.”); Brown,
871 F.3d at 539 (“[A]s the district judge concluded, the admission of [the expert’s] testimony
may have induced the jurors to defer to his conclusion rather than drawing their own.”). For
all of these reasons, the court will exclude Burwell’s opinions.
2. Robert C. Willis
For much the same reasons, the court will similarly sustain plaintiff’s motion to exclude
the testimony of defendants’ proposed policing expert, Robert C. Willis, as unhelpful to a jury.
(Dkt. #60.) Defendants summarize Willis’s remaining, relevant opinions from his report on
pages 8 and 9 of their brief in opposition to plaintiff’s motion to exclude. (Dfts.’ Br., dkt.
#118, at 8-9.) In particular, after considering the issues left by this court’s summary judgment
decision, defendants’ state that they intend to solicit the following opinions from Mr. Willis at
trial:

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(1) “White’s initial response and contact with Tate [the 911 caller] and Sonko, and
then later Rivera and Magada were reasonable and appropriate and conformed with
Wisconsin State Statutes, State of Wisconsin Law Enforcement Training Standards,
Madison Police Department policy, training and the procedures, customs and standards
of the Madison Police Department.”
(2) “White and Heck’s continued contact with Rivera and Magada was appropriately
conducted, they used good tactics and remained reasonable and professional.”
(3) “Based on their training and generally accepted policy practices, it would have been
appropriate for the officers to consider the information provided in the original call for
service, their personal observations, concerns they had about their own safety, as well
as the welfare of Naomi and Magada, and Rivera’s total lack of cooperation, in
determining how best to respond and react to the situation as it unfolded at Rivera’s
apartment.”
(4) “The use of force employed by Heck and White against Rivera in light of the events
as they described them was consistent with their training and standard police practice
in light of the threat posed by and behavior of Rivera. Their response was not out of
proportion in the context of Rivera’s actions.”
(5) “White and Heck’s contact with Rivera and the subsequent use of force that day
was based upon training and department policy. The Madison Police Department
policy is based upon the Defensive and Arrest Tactics Training System.”
(Id.)
Willis’s first opinion is at most only marginally relevant to the issues remaining in this
case. The jury will not be asked to decide whether Officer White’s contact with Ms. Tate and
Mr. Sonko was appropriate or conformed with state law or department policies. White’s
interactions with these two individuals are relevant to the remaining issues only to provide
context for the incident that occurred at Rivera’s apartment, and any attempt by the parties to
create a dispute about the appropriateness of White’s interactions with Tate and Sonko would
be distracting and confusing. Additionally, there is no meaningful dispute that White acted
appropriately in investigating the incident by visiting Rivera and Magada’s apartment. Based
on what White had learned from Sonko and Tate, the court could conclude as a matter of law
that White’s decision to investigate further by visiting Rivera and Magada’s apartment was
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non-actionable. Rather, the disputed, factual issues to be resolved by the jury concern what
happened after Officers White and Heck arrived at Rivera’s apartment.
As for Willis’s arguably more relevant opinions regarding the interactions between
White, Heck and Rivera, they are problematic for the same reasons as Burwell’s proposed
opinions. As an initial matter, many of Willis’ opinions regarding the use of force incident
consist of improper credibility determinations and otherwise purport to usurp the jury’s role in
resolving factual disputes. See, e.g., Willis Rep. (dkt. #16) at 14-15 (Rivera’s description of
incident is “not plausible,” “not credible,” “impossible,” “not probable”); at 23 (“Rivera soon
became uncooperative and irrational”; “[she] refused to listen”; and “this incident became
quick, confusing and an instance where fact decisions had to be made [because of] Rivera’s
actions.”); at 26 (“Rivera’s claim that she was beaten by officers, especially Heck, for absolutely
no reason, is not credible.”); at 28 (“Rivera’s actions bordered on violent” and she engaged in
“assaultive behavior”)). As discussed above, all of these opinions fall outside the appropriate
role of an expert.
To Willis’s credit, his report acknowledges that resolution of the remaining excessive
force claim will depend on whether the jury believes Rivera’s version or the officers’ version of
events:
If Rivera’s version were plausible, the actions of the officers, especially Heck[,] would
be excessive, brutal, unlawful and even criminal, as police officers are never to use force
to ‘punish’ or out of frustration or unjustified anger.
(Id. at 15.) However, Willis’s opinions offer no discernible, specialized knowledge that would
assist the jury in deciding who to believe in this case. For example, this is not a situation in
which a specialized understanding of forensic or ballistic evidence would inform a jury’s
credibility determination. Indeed, again to his credit, Willis notes in his report that there is
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“little” objective physical evidence as to what happened and why. (Willis Rep., dkt. #16, at
17.) Instead, as is often the case in an excessive force case, most of the relevant evidence is in
the form of testimony from witnesses, and again this testimony and the limited physical
evidence are simple and within a jury’s ability to understand and evaluate. See Brown, 871 F.3d
at 538 (“The everyday experience of lay jurors fully equips them to answer the reasonableness
question when a case involves facts that people of common understanding can easily
comprehend.”) (citation and internal quotation marks omitted).
The one area in which Willis offers some specialized knowledge is in his analysis of
Madison Police Department training and policies regarding use of force and his opinions about
whether Officers White and Heck acted in compliance with Department training and policies.
Willis opines that White and Heck followed MPD procedures regarding citizen contact and
investigation of possible crime, and that such procedures and policies are reasonable. (Willis
Rep., dkt. #16, at 22). Even so, this analysis, however, is too dependent on inappropriate
credibility determinations. For example, Willis states that White and Heck used calm and
professional communication tactics with Rivera, but that Rivera’s “uncooperative and
irrational” behavior made such communication ineffective. (Id. at 23.) Similarly, he states
that the officers tried to de-escalate the situation and gain “voluntary compliance,” as they had
been trained to do, but that Rivera’s behavior made it impossible to do so. (Id. at 26-27.) He
goes on to opine that the officers’ use of force was in accordance with the training they had
received, known as Defensive and Arrest Tactics Training System, because Rivera was “ignoring
verbal commands, pushing White, [was] attempting to flee or escape from his presence[, and]
continued to resist and thrash around and attempted to possibly attack officers by striking
them with the back of her head and/or her flailing arms.” (Id. at 54.) In sum, Willis’ opinions
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relating to training and policies rely too heavily on conclusions that Rivera is lying about her
behavior and White and Heck’s actions, just as the proffered opinions of plaintiff’s expert
Burwell relies on equally inappropriate, contrary conclusions.
The court might consider allowing Willis to testify about MPD training and standard
police practices relating to use of force and investigations generally, without offering his
impermissible opinion about whether Officers White and Heck complied with those policies.
Indeed, defendants argue that the court should permit such testimony, as it did in Estate of
DiPiazza v. City of Madison, 16-cv-60-wmc, where experts were permitted to testify regarding
“the relevant training that officers in the position of defendants would have received and the
appropriate standard police practices,” as well as “how the officer’s conduct measured up
assuming a particular factual scenario.” (Dfts.’ Br., dkt. #118, at 7) (citing Estate of DiPiazza,
2017 WL 1843316, *3 (W.D. Wis. May 5, 2017) (Daubert decision)). However, this case is
readily distinguishable from DiPiazza, which involved officers using deadly force against an
armed woman who was threatening suicide. In that case, the court permitted expert testimony
regarding contemporary police training and tactics regarding use of lethal and non-lethal force
under the specific circumstances at issue, which in the court’s view were substantially outside
the experience of a typical lay juror and, therefore, may be aided by an expert’s opinions. Id.
In contrast to DiPiazza, however, the factual disputes in this case are substantially more
straightforward and within a jury’s common understanding. If the jury believes Officers White
and Heck’s version of events, the jury can evaluate whether it was reasonable to handcuff Rivera
and hold her against the wall to prevent her from thrashing around and injuring the officers.
Similarly, if the jury believes Rivera’s version of events, the jury can decide whether it was
reasonable to place her in handcuffs, put her head against the wall and repeatedly pull her hair.
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Indeed, Willis admits that such behavior would be unreasonable, making his testimony about
Madison Police Department training and policies of limited usefulness.
As the Seventh Circuit explained in Brown, “[t]he jury’s task is to determine how a
reasonable officer would act in the circumstances, not how an officer in a particular local police
department would act.” 871 F.3d at 538-39 (affirming exclusion of expert testimony regarding
Chicago Police Department’s Use of Force Model); see also Potts v. Manos, No. 11 C 3952, 2017
WL 4365948, at *4 (N.D. Ill. Sept. 29, 2017) (excluding expert testimony regarding Cook
County use of force policies in excessive force case because expert’s opinion that defendants
complied with county policies would not assist jury “in the factual determinations it is required
to make,” or shed light on “whether defendants behaved unreasonably in a way that violated
plaintiff’s constitutional rights”).
Here, the jury can evaluate the physical evidence and witness statements and draw their
own conclusions about that evidence without the help of expert testimony. See Thompson, 472
F.3d at 458 (“The jury, after having heard all of the evidence presented, was in as good a
position as the experts to judge whether the force used by the officers to subdue Thompson
was objectively reasonable given the circumstances in this case.”)

Therefore, the court

concludes that Willis’ testimony does not satisfy Daubert’s standards for admissibility.
Finally, as with Burwell’s testimony, the court finds any probative value of the Willis’
testimony to be substantially outweighed by the danger of unfair prejudice and confusion. Fed.
R. Evid. 403. See United States v. Hall, 93 F.3d 1337, 1343 (7th Cir. 1996) (“Unless the
expertise adds something, the expert is at best offering a gratuitous opinion, and at worst is
exerting undue influence on the jury that would be subject to control under Rule 403.”)

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Accordingly, plaintiff’s motion in limine #1 (dkt. #91) and defendants’ motion in
limine #1 (dkt. #60) will both be GRANTED.

II. PLAINTIFF’S MOTIONS IN LIMINE
MIL No. 2: Exclude or limit testimony of defendants’ experts Kipp Hartman, Alexander
Berkovitz and Christopher Masterson (dkt. #94)
In addition to Robert Willis, defendants disclosed three “non-retained” witnesses
associated with the Madison Police Department as experts: Sergeant Kipp Hartman, Sergeant
Alexander Berkovitz and Police Officer Christopher Masterson.

In their Rule 26(a)(2)

disclosures, defendants state that these witnesses may “testify regarding training of Madison
police officers on principles of use of force options and decision making and tactical
considerations, arresting decisions, conducting investigations, and defendants’ actions being
consistent with such training in this case.”

(Dkt. #15.)

Plaintiff moves to exclude this

testimony on the grounds that it, too, is irrelevant and prejudicial, and it would also be
cumulative for all three witnesses to provide the same testimony. In response, defendants argue
that “whether [defendants’] use of force was consistent with their training and generally
accepted police practice and procedure is relevant to whether it was reasonable or not” under
the Fourth Amendment. (Dfts.’ Br., dkt. #119, at 1.)
While defendants disclosed Hartman, Berkovitz and Masterson as witnesses under Fed.
R. Civ. P. 26(a)(2)(C), meaning they did not have to provide a written report, that rule still
requires disclosure of a “summary of the facts and opinions to which the witness is expected to
testify.” Here, defendants’ disclosure provided no such summary of the facts and opinions to
which these witnesses will testify, other than stating cryptically that each will testify about
police training and whether defendants’ actions were consistent with such training. This vague
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disclosure provides little insight from which the court can determine whether the proposed
testimony would be relevant, useful or unduly prejudicial.
For the same reasons discussed above in the context of Mr. Burwell’s and Mr. Willis’
opinions, however, the court concludes that Hartman, Berkovitz and Masterson likely could
provide no opinions about whether Officers White and Heck acted in accordance with their
training and acceptable police practices that would be relevant or useful to the jury in deciding
the remaining factual disputes in this case. In contrast, their opinions would very likely be
confusing and unduly prejudicial, as they could cause the jury to believe that they ought to
substitute their own judgment for these experts’ judgments or that the ultimate question is
whether defendants complied with MPD policies and training standards, rather than whether
defendants acted reasonably under Fourth Amendment standards. Therefore, the court will
preclude Hartman, Berkovitz and Masterson from offering opinions about whether Officers
Heck and White acted in accordance with training and acceptable police practices, subject to
defendants showing before the final pretrial conference that these witnesses have some
opinions to offer that would be relevant and not prejudicial.
That being said, Hartman, Berkovitz and Masterson may be able to provide nonopinion, factual testimony regarding training provided to Officers White and Heck that could
be marginally relevant. Because plaintiff has not identified any persuasive reason for excluding
purely factual testimony about police training from these witnesses, the court will not preclude
defendants from making a non-cumulative proffer of testimony at the final pretrial conference,
and if permitted to testify would at least consider allowing plaintiff’s police expert to offer a
brief rebuttal opinion. Absent express permission from this court, no such testimony will be
allowed from either side at trial.
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Finally, plaintiff moved to preclude Berkovitz from offering testimony about the
conclusions he made after undertaking an internal investigation of the incident. Defendants
concede that such testimony would be improper, so the court will grant that portion of
plaintiff’s motion as unopposed. Still, the court will not prohibit defendants from offering
Berkovitz as an impeachment witness if appropriate.
Accordingly, plaintiff’s motion in limine #2 (dkt. #94) is GRANTED IN PART and
DENIED IN PART as set forth above.

MIL No. 3: Omnibus motion (dkt. #95)
Plaintiff’s third motion in limine includes several requests, as set forth below.
a. Plaintiff moves to prohibit defendants from eliciting evidence of other crimes,
wrongs, acts, convictions or police contacts of the plaintiff.
This motion will be GRANTED as unopposed.
b. Plaintiff moves to preclude evidence, argument or testimony concerning
awards or commendations that defendants have received.
This motion will be GRANTED as unopposed.
c. Plaintiff seeks permission to introduce evidence of Officer Heck’s and White’s
prior discipline and complaints for the purpose of establishing that each has a motive
to be untruthful about his conduct and in support of punitive damages.
The particular evidence at issue concerns alleged citizen complaints against Officer
White for excessive force, rudeness and harassment, and complaints against Officer Heck for
being “smug, rude, looking for a reason to arrest, refus[ing] to allow a citizen to obtain clothing
before taking him outside in his underwear and making racial slurs to other officers.” (Plt.’s
Br., dkt. #136, at 1.) Additionally, plaintiff alleges that Heck was disciplined for making racial
comments and placed on a diversion agreement.
18

As an initial matter, plaintiff’s suggestion that Officer Heck’s prior discipline for making
racial comments should inform the jury’s view of his interactions with Rivera and Magada in
this case is largely unpersuasive. Nothing about Heck’s comments suggest that he held negative
opinions about black people generally or biracial or African American women in particular, as
the plaintiff apparently wishes to argue. Indeed, two of the comments were not the subject of
any discipline because they were deemed to have been made in jest between two officers, one
of whom is black.2 (See Dkt. ##41, 42, 43.) Moreover, introducing the specifics of the earlier
disciplinary investigation with respect to those comments would be unduly prejudicial under
Rule 403.
This leaves the question of the relevance of a single exchange between Heck and another
officer for which he was disciplined, expressing a view that males who grew up in Africa are
more likely to have been raised in a culture dismissive of women’s rights.3 Although the record

During a conversation on September 18, 2012, between Officer Heck and Officer Derek Jones,
who is black, Jones told Heck that people are sometimes surprised by his age, to which Heck
responded, “black don’t crack.” (Dkt. #41 at 4.) A few minutes later, Heck told Jones that he had
stopped a man who performed an illegal u-turn, but only issued him a warning. Jones responded
by teasing Heck that he only issued citations to black citizens, to which Heck responded that the
man in the car “was black . . . blacker than you.” Jones then responded “no he wasn’t . . . just like
Franklin’s mom, right?” Jones was referring to Officer Mike Franklin, who is black, and whose
mother is white. (Id.) Again, while admonished about such informal exchanges between officers,
neither Heck nor Jones were subjected to discipline for these comments.
2

Officer Heck made this comment at issue in a conversation with Officer Steve Heimsness on
September 7, 2012. Several officers, including Heck and Heimsness, had been dispatched to
respond to a call for service from a woman at a dance club who reported an unpleasant encounter
with a man she had previously dated. (Dkt. #41 at 1-2; dkt. #43 at 3.) After the woman had left,
the man and his friends had apparently followed her and a male companion, prompting her to call
the police for assistance. After other officers located the man, Heck had the following conversation
with Heimsness:
3

Heck: is he an african guy?
Heimsness: Yes
Heck: that's what the name looked like
Heimsness: so there you go

19

does not reveal whether Heck had any reason to believe Magada was raised in Africa, if he did,
this might be a basis for concluding that he at least initially viewed Rivera as a victim. While
the court will, therefore, RESERVE on the relevance of Heck’s viewpoint, the court can
conceive of no circumstance where introduction of the discipline itself would be relevant, nor
where that exchange could legitimately be used to suggest bias or racism toward the plaintiff.
This leaves plaintiff’s argument as to the admission of evidence of past citizen
complaints against the defendants. Under Federal Rule of Evidence 404(b), “evidence of other
crimes, wrongs, or acts is inadmissible to show propensity, but may be admissible for other
purposes, ‘such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity.
. . absence of mistake or accident,’ or other relevant, nonpropensity purposes.” Duran v. Town
of Cicero, Ill., 653 F.3d 632, 644–45 (7th Cir. 2011) (quoting Fed. R. Evid. 404(b)). Rule
404(b) “allows the use of other-act evidence only when its admission is supported by some
propensity-free chain of reasoning.” United States v. Gomez, 763 F.3d 845, 856 (7th Cir. 2014).
Accordingly, the court “should not just ask whether the proposed other-act evidence is relevant
to a non-propensity purpose but how exactly the evidence is relevant to that purpose—or more
specifically, how the evidence is relevant without relying on a propensity inference.” Id.
In arguing that such evidence is admissible to show motive or intent, plaintiff relies on
United States v. Brown, 250 F.3d 580 (7th Cir. 2001), which involved the criminal prosecution

Heck: and he's young
Heimsness: sometimes they forget they are not in africa anymore
Heck: i've noticed that on multiple calls
Heimsness: the social mores are not the same
Heck: it's hard moving to an egalitarian society
Heimsness: i know
Heimsness: it was hard for me
Heck: Lol

20

of two police officers for using excessive force. The court of appeals held that it was proper to
admit evidence of a previous incident of force involving one of the officers under Fed. R. Evid.
404(b) because it was relevant to the officer’s “intent to punish,” as distinct from his propensity
to commit the crime charged. Id. at 585. As defendants point out, however, intent was an
important question in Brown because the criminal statute at issue, 18 U.S.C. § 242, includes a
specific element of intent, making it a crime to (1) willfully (2) under color of law (3) deprive
a person of rights protected by the constitution. Id. at 584. Thus, the prosecution was entitled
to use the previous incident to prove this element of specific intent. Id. at 585. In contrast,
under the Fourth Amendment, Officers White’s and Heck’s intent is largely irrelevant. Instead,
claims of excessive force in the case of a “seizure” are analyzed under an “objectively
reasonableness” standard. Graham v. Connor, 490 U.S. 386, 397 (1989). Accordingly, the jury
must look to whether the officer's actions were objectively reasonable in light of the facts and
circumstances confronting him, without regard to his underlying intent or motivation. Id.
Plaintiff also argues that evidence of prior citizen complaints or discipline is relevant to
defendants’ credibility, because those complaints give them an additional incentive to lie about
using force against Rivera. While plaintiff may introduce evidence that Officers White and
Heck would be subject to possible discipline if they were found to have engaged in the use of
excessive force against Rivera, regardless of whether they had received citizen complaints in the
past, plaintiff’s suggestion that prior citizen complaints gave defendants an extra incentive to
lie is speculative at best. Moreover, any slight probative value of past complaints or disciplinary
decisions involving the officers is substantially outweighed by the likelihood of causing minitrials, undue delay, jury confusion and unfair prejudice to defendants.

21

Accordingly, plaintiff’s motion to introduce such evidence is DENIED except for
RESERVING as to the possible relevance of Heck’s view as to cultural bias in Africa against
women.
d. Plaintiff moves for an order sequestering all witnesses.
This motion will be GRANTED as unopposed.
e. Plaintiff requests a hearing outside the presence of the jury to determine the
number of crimes for which all potential witnesses have been convicted.
Defendants do not oppose this motion, but neither side has explained why such a
hearing is necessary.

If the parties are concerned about the number or admissibility of

convictions for any witness, they should confer with each other. If there are disputes that they
cannot resolve by a straightforward application of Fed. R. Evid. 404(b) and 609, then the court
will address any disputes at the final pretrial conference. Accordingly, plaintiff’s request for a
hearing regarding the number of convictions for potential witnesses is DENIED without
prejudice.
f. Plaintiff moves for an order prohibiting testimony regarding her alleged
placement of software on Vickson Magada’s phone to determine if he was having an
affair with another woman.
Plaintiff argues that this evidence is irrelevant because defendants were unaware that
she had placed software on Magada’s phone at the time of the incident. Defendants oppose
the motion on the ground that the evidence has “significant probative value” regarding
plaintiff’s “demeanor,” arguing that it provides an explanation for why she was so upset at
Magada on the night of the incident. Defendants further argue that it “corroborate[‘s] the
officers’ observations of her.” (Dfts.’ Br., dkt. #120, at 3.).
Defendants’ arguments are unpersuasive. There is no dispute that (a) plaintiff was
upset at Magada when she arrived at Sonko’s house and (b) she had calmed down by the time
22

Officer White arrived at plaintiff’s apartment. That plaintiff may have had other reasons to
be upset at Magada unrelated to the events that night has no particular relevance to the claims
remaining in this case, particularly since the evidence is that plaintiff only became upset after
Officer Heck went upstairs in her apartment. It is undisputed that she was upset about the
officers’ actions. Thus, the relevant dispute to be decided by the jury concerns what happened
between plaintiff and Officers White and Heck, not whether plaintiff suspected Magada was
having an affair or was otherwise upset with him. Accordingly, plaintiff’s motion to preclude
this evidence will be GRANTED.

MIL No. 4: Preclude improper testimony by defense witnesses (dkt. #96)
Finally, plaintiff moves for an order limiting or excluding “improper testimony by
defenses witnesses, including defendants’ expert, Robert C. Willis.” Plaintiff’s motion makes
little sense, as the only concern raised is that Willis has offered inappropriate testimony in
previous cases in which he acted as an expert, and even as to Willis, plaintiff submitted no
evidence that Willis intends to offer similar “inappropriate” testimony in this case. In any
event, because the court is excluding Willis’ testimony for other reasons, this motion will be
DENIED AS MOOT, except to note that the court will enforce the Federal Rules of Evidence
as to both sides’ witnesses at trial.
II. DEFENDANTS’ MOTIONS IN LIMINE
MIL No. 2: Preclude experts and other witnesses from expressing legal conclusions or
other opinions on ultimate verdict questions (dkt. #61)
Defendants request an order precluding all witnesses from expressing legal conclusions
or “ultimate fact opinions” regarding defendant officers’ actions. (Dfts.’ Br., dkt. #61, at 3.)

23

Besides the expert opinion of Ernest Burwell, which has already been excluded, defendants do
not provide any specific example of testimony that they believe should be precluded. Without
knowing what testimony in particular defendants believe would constitute an improper legal
conclusion, the court cannot determine whether the testimony should be excluded. Of course,
counsel for both sides can object to specific testimony if they believe it is improper.
Accordingly, this motion will be DENIED as unnecessary.

MIL No. 3: Preclude plaintiff’s expert and other witnesses from testifying that another
witness is or is not credible or telling the truth (dkt. # 62)
Defendants request an order precluding all witnesses from testifying regarding the
credibility or truthfulness of another witness. Like the previous motion, all of defendants’
arguments concern testimony of Ernest Burwell, who has been excluded. Accordingly, this
motion will be DENIED AS MOOT.

MIL No. 4: Preclude argument, testimony or other evidence regarding information not
known by the officers at the time of plaintiff’s arrest (dkt. #63)
Defendants move to preclude any argument, testimony or other evidence regarding
three topics: (1) what actually happened at Mr. Sonko’s apartment; (2) the actual physical
condition of Rivera’s daughter; and (3) whether or not Rivera or Magada were armed.
Defendants argue that because the Fourth Amendment is an objective standard, only the
information known and available to Officers White and Heck is relevant to whether they used
excessive force or conducted a lawful arrest. Defendants argue that it would be confusing and
prejudicial to permit Rivera to talk about what actually happened, as opposed to what Officers

24

White and Heck knew based on their own observations and conversations with Mr. Sonko and
Ms. Tate.
Defendants’ arguments are largely unpersuasive. Within reason, what happened at Mr.
Sonko’s apartment is relevant, albeit background information, which provides context for the
subsequent events at Rivera’s apartment. Further, it would be unfair to Rivera if Sonko’s
version of events (or even more unfair, defendants’ version of what Sonko reported) were the
only version presented to the jury, as Rivera disputes that she behaved as violently as Sonko
apparently reported.

Thus, the court will permit Rivera to introduce limited testimony

regarding the events at Sonko’s apartment and whether her daughter was injured, if she chooses
to do so. Defendants’ concerns about the jury using this evidence when evaluating the Fourth
Amendment questions can be addressed through jury instructions and, of course, argument of
counsel. Specifically, the court will instruct the jury that what happened at Sonko’s apartment
is relevant only for background and that the relevant consideration for purposes of Rivera’s
Fourth Amendment claim is what was known to Officers White and Heck, respectively, when
deciding to restrain Rivera, as well as the manner for doing so.
Finally, with respect to whether Rivera or Magada were armed, while the court is
unaware of anything in the record suggesting that the officers were concerned that either were
armed, whether an individual is armed is obviously relevant to whether the force used is
reasonable and necessary under the Fourth Amendment. Kingsley v. Hendrickson, 135 S. Ct.
2466, 2473 (2015) (“threat reasonably perceived by the officer” is a factor to consider in
excessive force analysis). Thus, counsel can ask Officers White and Heck whether they saw
any weapons on Rivera or Magada, or whether they had reason to believe they were armed.
Moreover, Rivera and Magada are free to testify whether they were armed, what they were
25

wearing, and whether they took any actions that would have indicated to Officers White and
Heck that they were (or were not) armed. Again, the jury instructions will make clear that the
jury should only consider the information defendants possessed in applying the objective
Fourth Amendment analysis. With these caveats, therefore, the motion will be also DENIED.

MIL No. 5: Preclude evidence or argument criticizing the conduct of defendants prior
to plaintiff being arrested (dkt. #64)
Defendants seek an order precluding plaintiff from introducing evidence or argument
criticizing any actions they took before arresting Rivera including, in particular, whether: (1)
Officer White should have interviewed others before heading to Rivera’s apartment; (2) Officer
White should have called Rivera’s apartment before travelling there; (3) Officer White should
have stated the purpose of his investigation, including potential child abuse, immediately upon
arrival; and (4) Officer White should have attempted to ascertain the condition of Rivera’s
daughter immediately when he arrived at Rivera’s apartment.

Curiously, defendants

acknowledge in their motion that this information is relevant background information and may
even be relevant to the “totality of the circumstances” existing at the time of plaintiff’s arrest.
Nevertheless, defendants argue that because “pre-seizure” conduct cannot be the basis for
Fourth Amendment liability, plaintiff should not be permitted to make arguments critical of
Officer White’s pre-seizure decisions.
As a general proposition, defendants are correct that pre-seizure conduct cannot itself
violate the Fourth Amendment. See Marion v. City of Corydon, 559 F.3d 700, 705 (7th Cir.
2009) (“Pre-seizure police conduct cannot serve as a basis for liability under the Fourth
Amendment; we limit our analysis to force used when a seizure occurs.”).

Defendants

acknowledge, however, their conduct leading up to the use of force on Rivera is properly
26

considered as part of the totality of the circumstances: “[t]he sequence of events leading up to
the seizure is relevant because the reasonableness of the seizure is evaluated in light of the
totality of the circumstances.” Williams v. Ind. State Police Dep’t, 797 F.3d 468, 483 (7th Cir.
2015), cert. denied, 136 S. Ct. 1712 (2016)). Thus, plaintiff may introduce evidence or
testimony relating to defendants’ pre-seizure decisions.
With respect to whether plaintiff may express “criticism” of pre-seizure decisions,
defendants’ concerns largely relate to opinions that would have been offered by plaintiff’s
expert, Ernest Burwell, but which have been stricken. Because it is not clear what type of
“critical” testimony or argument that other witnesses or counsel may make, the court will not
enter an order excluding such testimony or argument categorically. That being said, plaintiff
may not argue for a liability finding based on any of defendants’ “pre-seizure” decisions, even
if arguably miscalculations or missteps, occurring earlier in the night. Estate of Heenan ex rel.
Heenan v. City of Madison, 111 F. Supp. 3d 929, 945 (W.D. Wis. 2015).
Accordingly, the court will GRANT IN PART and DENY IN PART the motion as set
forth above.

MIL No. 6: Preclude questioning by counsel or testimony regarding the officers’
subjective motivations, beliefs or states of mind (dkt. #65)
Defendants also move to preclude any questioning by counsel or testimony regarding
Officers White’s and Heck’s “subjective motivations, beliefs or states of mind,” arguing that
such evidence is irrelevant under the objective Fourth Amendment standard.

Many of

defendants’ arguments concern opinions offered by plaintiff’s police practices expert Ernest
Burwell, which have already been excluded. Defendants also point to statements they made
during depositions about whether they had probable cause to arrest Rivera or exigent
27

circumstances to enter her home. The court agrees with defendants that counsel may not elicit
defendants’ opinions about whether they had probable cause or exigent circumstances, as such
opinions are irrelevant after the court’s summary judgment decision.
However, the court will not prohibit all questioning about the officers’ “subjective
motivations, beliefs or states of mind,” as such evidence may be relevant to the totality of the
circumstances and the reasonableness of the officers’ actions in this case.

“[O]bjective

reasonableness turns on the facts and circumstances of each particular case,” including “the
relationship between the need for the use of force and the amount of force used; the extent of
the plaintiff's injury; any effort made by the officer to temper or to limit the amount of force;
the severity of the security problem at issue; the threat reasonably perceived by the officer; and
whether the plaintiff was actively resisting.” Kingsley, 135 S. Ct. at 2473. Here, the officers
have suggested that Rivera was out of control, ignored orders, actively resisted after being
handcuffed and presented a risk of harm to the officers. These perceptions by the officers are
relevant to the excessive force analysis. At trial, both sides can question Officers White and
Heck about their perceptions, which will necessarily involve questions about the officers’
subjective beliefs. Of course, the jury will also be instructed that the ultimate standard is one
of objective reasonableness, not whether the officers’ individual perceptions, beliefs or
motivations were reasonable.
Accordingly, the court will GRANT IN PART and DENY IN PART defendants’ motion
in limine #6 (dkt. #65) as set forth above.
MIL No. 7: Preclude evidence or argument that defendants’ conduct was inconsistent
with departmental policies or procedures, state law enforcement standards or any other
proscriptive guidelines (dkt. #66)

28

Defendants move to preclude any evidence or argument regarding whether their
conduct was or was not consistent with departmental policies or procedures, state law
enforcement standards or any other proscriptive guidelines, arguing that such evidence is
irrelevant to whether their conduct in arresting Rivera and using force was objectively
reasonable under the totality of the circumstances. The court finds this motion somewhat
confusing, as defendants themselves argue in other motions for the admission of such evidence
through their outside police practices expert and non-retained experts associated with the
Madison Police Department.
For the reasons already discussed above, the court has already ruled that any expert
opinion testimony about whether Officers White and Heck complied with departmental
policies, state standards or other guidelines is likely to be irrelevant, confusing or unduly
prejudicial on the specific facts here.

At its core, Rivera’s remaining claims turn on the

credibility of the individual parties’ accounts of events, not whether the officers followed
specific standards. However, the court will not preclude the parties from introducing factual
evidence about training or policies that may be relevant as background to explain the officers’
actions. For example, the officers may discuss their training in responding to and investigating
domestic dispute incidents and how their training informed their actions at Rivera and
Magada’s apartment. Indeed, the court has not precluded either side from making a proffer of
expert testimony on these narrowed topics. To the extent the parties need further clarification
in this regard, they may make a proffer and seek clarification at the final pretrial conference.
Accordingly, this motion is GRANTED IN PART and DENIED IN PART as set forth
above.

29

MIL No. 8: Preclude argument, testimony or other evidence regarding what experts or
others would or would not have done if confronted with the same facts as defendants
(dkt. #67)
Defendants move to preclude argument, testimony or other evidence regarding how
experts or other witnesses would have behaved under the circumstances facing Officers White
and Heck, arguing that such evidence is irrelevant to the Fourth Amendment objective
reasonableness standard. Again, defendants appear to be concerned primarily with opinions
that plaintiff’s police practices expert, Ernest Burwell, intended to offer, which have been
stricken.

To the extent defendants seek a ruling prohibiting counsel from asking any

hypothetical questions to the remaining witnesses, defendants’ request is too broad and
unsupported by any relevant legal authority. Further, defendants have not shown that such a
ruling is appropriate or necessary. Accordingly, the motion will be DENIED.

MIL No. 9: Preclude questions, testimony or other evidence that plaintiff was acquitted
in subsequent criminal proceedings (dkt. #68)
Although plaintiff was arrested for resisting/obstructing an officer, she was not
prosecuted for that offense. Instead, she was prosecuted and later acquitted for disorderly
conduct. Defendants seek to preclude plaintiff from presenting any evidence, testimony or
argument regarding her prosecution and acquittal on the ground that these subsequent events
are irrelevant and prejudicial. For her part, plaintiff argues that the fact she was not prosecuted
for the conduct for which she was arrested by defendants is relevant to defendants’ credibility,
motivation and intent.
The court agrees with defendants that evidence relating to plaintiff’s subsequent
criminal proceedings should be excluded entirely. The court has already determined that
defendants had “arguable probable cause” to arrest plaintiff, so the parties will not be permitted
30

to argue whether probable cause to arrest was present. Moreover, whether the prosecutor
decided to pursue a particular charge, or whether plaintiff was acquitted of a charge, is not
determinative of whether the officers used excessive force against plaintiff. See Ochana v. Flores,
347 F.3d 266, 272 (7th Cir. 2003) (“It was not an abuse of discretion for the court to grant
the officers’ motion in limine to bar . . . the disposition of the underlying criminal charges,
because these were not facts within the officers’ knowledge at the time of the arrest. . . .”);
Currier v. Baldridge, 914 F.2d 993, 996 (7th Cir. 1990) (“[T]he mere fact that [plaintiff] was
acquitted of the crime for which he was initially arrested does not lead to section 1983 liability
for the arresting officer.”).
Further, significant prejudice or confusion could arise if the jury seeks to retroactively
gauge the reasonableness of defendants’ use of force against the knowledge that plaintiff was
not prosecuted for resisting/obstructing an officer and was later acquitted of disorderly conduct.
Accordingly, this motion will be GRANTED.

MIL No. 10: Preclude evidence or argument regarding other use of force incidents (dkt.
#69)
Defendants move to preclude plaintiff introducing evidence, argument or testimony
regarding other use of force incidents not involving defendants, such as incidents involving
other officers with the Madison Police Department or elsewhere.

This motion will be

GRANTED as unopposed.

MIL No. 11: Preclude evidence or argument suggesting that Officer Heck’s conduct is
to be evaluated based solely on the information available to him, as opposed to
information that was also available to Officer White (dkt. #70)

31

Defendants move to exclude evidence or argument that Officer Heck’s action should be
evaluated based solely upon the information available to him, as opposed to the information
that was available to Officer White. Specifically, defendants argue that under the “collective
knowledge doctrine,” Officer Heck’s actions should be evaluated based on the knowledge of
both officers as to the facts and circumstances.
The court will deny defendants’ motion. “The collective knowledge doctrine permits
an officer to stop, search, or arrest a suspect at the direction of another officer or police agency,
even if the officer himself does not have firsthand knowledge of facts . . . necessary . . . to
permit the given action.”

United States v. Williams, 627 F.3d 247, 252 (7th Cir. 2010).

Defendants do not explain how this doctrine would apply in this case. For example, defendants
do not suggest that Officer White directed Officer Heck to stop Rivera, use any specific
technique in doing so, search her or arrest her. Defendants also do not suggest that Officer
Heck’s use of force could be based on some independent knowledge of Officer White about
the events at Mr. Sonko’s apartment, nor can the court conceive why this would be so. Instead,
defendants cite only to a case involving a probable cause determination, United States v. Parra,
402 F.3d 752 (7th Cir. 2005), which is no longer at issue in this case. Because defendants’
argument is undeveloped and vague, therefore, the motion will be DENIED without prejudice
to defendants attempting to elaborate at the final pretrial conference.

MIL No. 12: Preclude argument, testimony or other evidence regarding defendants’
employment or disciplinary records (dkt. #71)
Defendants’ motion to preclude argument, testimony or other evidence regarding their
employment or disciplinary records will be GRANTED for reasons discussed above in the
context of plaintiff’s mirror-image motion.
32

MIL No. 13: Preclude questioning by counsel, testimony or other evidence criticizing
the extent to which plaintiff remained in handcuffs subsequent to her arrest (dkt. #72)
Defendants move to preclude argument, testimony or other evidence critical of the
extent to which Rivera remained in handcuffs subsequent to arrest, as such evidence is
irrelevant to any issues remaining in the case. Rivera’s putative expert, Ernest Burwell, stated
in his report that Officers White and Heck left Rivera in handcuffs for too long and that they
should have been removed sooner under MPD policies and national standards. (Burwell Rep.,
dkt. #14, at 18-19.) While Rivera concedes that she is not bringing a Fourth Amendment
claim based on the length of time in which she remained in handcuffs, she does argue that
defendants’ decision to leave her in handcuffs for more time than consistent with MPD policies
and national standards is relevant to “the totality of the circumstances of defendants’ other
conduct.” (Plt.’s Br., dkt. #148, at 1-2.) She also states that she believes defendants will
attempt to argue that plaintiff was kept in handcuffs because she was “unruly,” and that at
minimum she should be able to rebut this argument.
The court concludes that any evidence, testimony or argument regarding the length of
time for which Rivera remained in handcuffs after she was arrested, as well as her behavior
after she was arrested, should be excluded as irrelevant and unduly prejudicial. Defendants’
use of force must be evaluated based on the circumstances that existed and of which defendants
were aware at the time of the force incident. At the time of the force incident, defendants had
no way of knowing how Rivera would behave once arrested. Moreover, evidence regarding
Rivera’s behavior after she was arrested and the length of time she remained in handcuffs would
be likely to cause jury confusion, as the jury might well be tempted to give undue consideration
to those events. This is particularly true here, where there is a dispute between the parties
33

regarding Rivera’s behavior after she was arrested, and whether defendants were responsible
for failing to remove Rivera’s handcuffs in a timely manner. Indeed, permitting either side to
introduce evidence regarding post-arrest events would likely lead to a mini-trial over matters
having little, if any, relevance to the actual claims remaining in the case. Accordingly, this
motion will be GRANTED, as well as precluding defendants’ counsel from eliciting testimony
or other evidence regarding plaintiff’s conduct after her arrest.

MIL No. 14: Preclude questioning by counsel, testimony or other evidence that there
was an unidentified third officer (dkt. #73)
During the deposition of plaintiff’s expert, Ernest Burwell, Burwell stated that he
believed a third officer may have responded to the call regarding the incident at plaintiff’s
apartment. (Burwell Dep., dkt. #58, at 163-64.) Burwell acknowledged that there was no
evidence that a third officer was actually present in plaintiff’s apartment. (Id.) Defendants
move to preclude any argument, testimony or other evidence that there was a “third officer”
involved with the incident in the case, arguing that there is no evidence that a third officer was
present.
Since Burwell is unlikely to be permitted to testify at all, his speculation about a third
officer will not be admitted. However, if another witness has actual knowledge or other
evidence that a third officer was involved, a party can certainly present such evidence unless it
violates a Rule 26 disclosure obligation. If no such evidence exists, as defendants assert, then
no such evidence will be introduced. Indeed, the court will not permit speculation about the
incident, including who may have been present, but defendants have not made any legitimate
argument to preclude admissible evidence about a third officer. Accordingly, this motion will
be DENIED.
34

MIL No. 15: Preclude argument, testimony or other evidence regarding the existence or
absence of post-incident squad car video, as well as any related department policies
regarding the same (dkt. #74)
Defendants seek to preclude plaintiff from presenting argument, testimony or other
evidence regarding the existence or absence of video from Officer White’s squad car during the
time in which he transported Rivera to the jail after she was arrested. Defendants initially
represent that Officer White has no recollection if any such video ever existed and, in any
event, that the City has never located such a video. In response, Rivera argues that she should
be permitted to present evidence that MPD policy required Officer White to record his
transport of Rivera to the jail and that the lack of video footage suggests that White either
intentionally failed to turn on the video or chose to transport Rivera knowing that his video
recorder was broken. Rivera further argues that this evidence is relevant because it undermines
the credibility of Officer White and his description of Rivera as unruly and uncooperative
during her transport.
As discussed above in the context of defendants’ motion to exclude evidence regarding
the length of time Rivera was held in handcuffs, the court concludes that all testimony,
evidence and argument regarding what occurred after Rivera was arrested should be excluded
as irrelevant, confusing and prejudicial. At least in the liability phase of trial, these post-arrest
events raise too many disputed issues that would distract the jurors from their task of evaluating
the facts and circumstances known to Officers White and Heck at the time of the force
incident. Thus, Rivera will be precluded from making arguments or presenting evidence about
whether there was a video recording of the transport. Likewise, defendants will be precluded
from presenting testimony or argument about Rivera’s behavior in the squad care or during
35

booking. As to the damages phase of trial, the court will at least allow plaintiff to make a
proffer as to the policy and opportunity for an officer to take such video and the department
to preserve it, although there would appear insufficient basis to allow plaintiff to argue that the
video’s absence be construed against the defendants even as to damages. Accordingly, this
motion will be GRANTED IN PART AND RESERVED IN PART.

MIL No. 16: Prohibiting testimony or argument that plaintiff was the “victim” of the
incident or of any other incident on that night (dkt. #76)
Defendants argue that it would be unduly prejudicial for Rivera’s counsel to refer to
Rivera as a “victim” during the course of trial. Rivera argues that she should be permitted to
refer to herself as a victim because she was a victim of both domestic abuse and police excessive
force.
The court agrees with defendants that referring to Rivera as the “victim” poses a risk of
unfair prejudice, at least until closing argument. In particular, the parties will not be permitted
to create a mini-trial over whether Rivera was actually a victim or aggressor during the domestic
dispute earlier on the night in question, since neither defendant was present to see that dispute.
As for whether Rivera was a “victim” of police excessive force, that is a question for the jury
that has not yet been resolved. That being said, it would be similarly prejudicial for defendants
or counsel to refer to Rivera as “the suspect,” “the criminal” or the like. Accordingly, the
motion is GRANTED. Rivera should be referred to at trial as “plaintiff,” “Ms. Rivera” or
“Rivera.”

MIL No. 17: Prohibiting testimony or argument regarding race or racial motivation
(dkt. #77)
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Defendants move to preclude Rivera from arguing that their actions against her were
racially motivated, on the ground that there is no evidence that their conduct was in any way
motivated by race. Additionally, they remind the court that because the Fourth Amendment
is an objective standard, their motivations are irrelevant in any event. In response, Rivera
argues that she should at least be permitted to present her theory that defendants’ perceptions
of the alleged threat she posed were unreasonable and influenced by her race and gender.
Although defendants are correct that their subjective intent is irrelevant to whether a
Fourth Amendment violation occurred, their subjective perceptions are relevant in evaluating
their description of the incident. Thus, plaintiff’s counsel is free to question Officers White or
Heck about explicit or implicit gender or racial bias that might have clouded their view or
description of Rivera, including that she was “out of control” and “screaming at the top of her
lungs,” as well as argue the same in an effort to undermine defendants’ credibility. On the
other hand, as already ruled, plaintiff may not suggest that Officer Heck is a racist based on
extraneous evidence, including statements he may have made that were investigated by the
MPD. Of course, defendants can also explore and argue whether the plaintiff’s perceptions
may have been clouded based on her own explicit or implicit bias. (See discussion infra.)
Accordingly, defendants’ motion is GRANTED IN PART and DENIED IN PART.

MIL No. 18: Preclude argument, testimony or other evidence that plaintiff’s job
prospects were impacted by the subsequent criminal proceedings against her (dkt. #78)
Defendants seek to preclude plaintiff from introducing evidence during the damages
phase of trial that her employment prospects were dimmed by her arrest and subsequent
criminal proceedings. Plaintiff seeks to offer evidence that: (1) those with criminal histories
have more difficulty obtaining employment generally; and (2) she was rejected by numerous
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potential employers specifically during and after the time criminal charges were pending against
her.
Given this court’s holding on summary judgment that Officers White and Heck had
arguable probable cause to arrest Rivera for disorderly conduct, plaintiff’s evidence and
argument will be excluded. Rivera has cited no legal authority to support her claim that she
could recover damages stemming from an arrest supported by probable cause. Moreover, the
officers did not make the decision to charge and prosecute Rivera formally for disorderly
conduct. Indeed, the officers did not even arrest Rivera for disorderly conduct. Instead, the
decision to pursue a disorderly conduct charge was made by the Dane County District
Attorney’s office. For all these reasons, Rivera has failed to show a causal link between the
alleged damages to her employment prospects and the alleged unlawful conduct by defendants
that is at issue in this case. Accordingly, this motion will be GRANTED.
MIL No. 19: Preclude evidence regarding indemnification (dkt. #79)
Defendants move to preclude plaintiff from presenting any evidence to the jury that the
City of Madison has a statutory obligation to indemnify defendants. The court agrees this
evidence is irrelevant. Neither side should make any reference to defendants’ ability to pay
damages or to what entity will ultimately pay damages. Accordingly, this motion will be
GRANTED.

MIL No. 20: Preclude “golden rule” testimony and arguments (dkt. #80)
Defendants moves to preclude any “golden rule” arguments, in which the jury is asked
to put itself in “some other person’s shoes in evaluating the evidence.” Plaintiff opposes the
motion on the ground that she is not sure what a “golden rule” argument is. As the Seventh
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Circuit has explained, a “‘Golden Rule’ appeal [is one] in which the jury is asked to put itself
in [someone else’s] position,” and “‘is universally recognized as improper because it encourages
the jury to depart from neutrality and to decide the case on the basis of personal interest and
bias rather than on the evidence.’” United States v. Roman, 492 F.3d 803, 806 (7th Cir. 2007)
(affirming district court’s ruling barring “Golden Rule” arguments) (quoting United States v.
Teslim, 869 F.2d 316, 328 (7th Cir. 1989)). Because the Seventh Circuit has repeatedly stated
that such arguments are improper, defendants’ motion will be GRANTED. At the final pretrial
conference, plaintiff may seek further clarification from the court about what type of argument
is prohibited, if necessary, although the above-quoted language appears straightforward.

MIL No. 21: Permit instruction that the officers’ presence on plaintiff’s stairwell was
justified by a lawful Terry stop, independent of consent or exigent circumstances (dkt.
#81)
The court concluded at summary judgment that Rivera had given Officer White consent
to be present just inside the front door of her apartment, but there was a genuine factual dispute
about whether Rivera or Magada had given Officer White consent to go beyond the small
entryway. (Dkt. #57 at 21-22). Additionally, the court held that defendants had failed to
show any exigent circumstances that justified their entry into the apartment. (Id. at 23.) This
latter ruling may be material at trial because defendants effected a warrantless arrest of Rivera
on the adjacent stairway of her apartment, which is arguably beyond the spatial scope of the
consent she claims to have given. (Id. at 22.) At trial, defendants seek to present an alternate
theory: that their presence on the stairway was justified under Terry v. Ohio, 392 U.S. 1, 21
(1968), because they had probable cause to arrest Rivera.

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Defendants’ argument is completely undeveloped and, in any event, based on a faulty
premise.

“[P]olice officers may not constitutionally enter a home without a warrant to

effectuate an arrest, absent consent or exigent circumstances, even if they have probable cause.”
Sparing v. Village of Olympia Fields, 266 F.3d 684, 688 (7th Cir. 2001) (emphasis added). In
contrast, Terry addressed a stop under the lower standard of “reasonable suspicion,” and
defendants cite no legal authority for the proposition that a police officer can enter a home, or
another area of a home for which consent to enter has been expressly withheld (at least
according to plaintiff), based on that lower standard. Nor do defendants cite any authority
suggesting that Terry-stops can be made in a private residence at all. Absent such authority, or
at least a more developed and persuasive argument, the court is disinclined to apply the holding
of Terry under the circumstances of this case. Accordingly, this motion will be DENIED.
That being said, defendants’ motion raises a different legal question as to whether
defendants should be granted qualified immunity with respect to Rivera’s unlawful arrest claim.
To the extent the court understands it, plaintiff’s claim is based on the theory that her arrest
was unlawful because she was arrested on an immediately adjacent stairway leading to the
remainder of her apartment, once Officer White attempted to ascent those stairs contrary to
her consent. At summary judgment, defendants argued that this arrest was lawful because
Rivera had consented for the officers to be on the stairs, or in the alternative, exigent
circumstances permitted them to be on the stairs. Both arguments involved disputed issues of
material facts requiring a trial. Even assuming a lack of consent to Officers White and Heck
being on the stairway, and an absence of exigent circumstances, the question remains whether
clearly established law prohibited those officers from making an arrest on these adjacent stairs,

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just as they could seize evidence in plain view although outside the area in which they were
allowed to stand.
This question was not developed at summary judgment. Defendants referred the court
to the so-called “other-lawful-basis exception,” discussed in Wayne R. LaFave, 3 Search and
Seizure: A Treatise on the Fourth Amendment (5th Ed.), § 6.1(c), which Professor LaFave
states permits police to make an arrest once they lawfully enter a home. However, defendants
failed to discuss Professor LaFave’s further statements that: (1) “police once inside should be
allowed . . . to make an unannounced arrest” so long as “they do not exceed the spatial
boundaries of the consent given”; and (2) “it is essential that the presence of the police at the
very time and place of arrest be consistent with the entry authority relied upon.” Id. For her
part, Rivera relied primarily on case law relating to searches of a car or home, rather than arrests
within a home. Finally, neither side adequately addressed whether clearly established law
prohibited Officers White and Heck from making an arrest under the circumstances similar to
those here.
Because defendants do assert a qualified immunity defense, Rivera has the burden of
showing that defendants are not immune. As applicable here, Rivera must show that she had
a clearly established right not to be arrested within her home where: (1) officers had arguable
probable cause to arrest her (based on the original altercation rather than her conduct in her
own home); (2) she had consented for officers to be in the entryway of her home; and (3) she
took several steps outside the entryway of her home, but always remained within the direct
view of, and only a few feet from, the officers. Because this issue was not squarely addressed
at summary judgment, and should be resolved before trial, the court will give the parties an
opportunity to file legal briefs on this narrow question. Plaintiff may have until September 26,
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2018, to file a brief explaining why Officers White’s and Heck’s otherwise lawful arrest on
stairs directly adjacent to an area in which she consented to their presence violated a clearly
established right. Defendants may have until October 5, 2018 to file a response. Unless the
court deems it necessary, there will be no reply briefs, and both sides should focus their
submissions on the most closely analogous case law, both factually and legally.

MIL No. 22: Regarding jury instruction for common law tort (dkt. #105)
Defendants further argues that if the court gives a separate jury instruction for plaintiff’s
state law battery claim, then an instruction regarding the applicable “middle burden of proof”
should also be given. Although jury instructions have not yet been circulated, the court agrees
generally with defendants. Under Wisconsin law, civil tort actions for battery by the police
require proof by “clear and convincing evidence,” as opposed to the lower burden of
“preponderance of the evidence” that applies to claims under 42 U.S.C. § 1983. See Shaw v.
Leatherberry, 2005 WI 163, ¶ 21, 286 Wis. 2d 380, 391, 706 N.W.2d 299, 305; Wis. JI-Civil
205. Therefore, the motion will be GRANTED.

MIL No. 23: Allow argument that consent given to either Officer White or Officer Heck
by plaintiff or Magada to be in their home extended to all other law enforcement
officers, regardless whether those other law enforcement officers were directly given
express or implied consent (dkt. #106)
As the court recognized at summary judgment, there is a genuine factual dispute about
whether Rivera or Magada consented to Officer White entering their apartment beyond the
small entryway at the bottom of the stairs. (Dkt. #57 at 20-22.) Rivera also avers that she
specifically told Officers White and Heck that they could not go upstairs. In contrast, the
officers aver that Rivera told them they could go upstairs so long as they removed their shoes.
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Defendants now request permission to argue that if the jury finds that Rivera or Magada
consented to Officer White going upstairs, that consent extends to Officer Heck, regardless
whether Heck received consent directly. Plaintiff makes several arguments in opposition to
the motion, although most are not directly responsive. Specifically, she argues that: (1) there
is a dispute about the scope of consent; (2) Rivera’s objections to the officers’ entry negated
any consent given by Magada; and (3) any consent given was later revoked. These arguments
highlight the factual disputes regarding consent, but do not address defendants’ legal argument
regarding whether consent to Officer White’s going upstairs extends to Officer Heck, unless
expressly withdrawn.
“The standard for measuring the scope of a suspect’s consent under the Fourth
Amendment is that of ‘objective’ reasonableness---what would the typical reasonable person
have understood by the exchange between the officer and the suspect?” Florida v. Jimeno, 500
U.S. 248, 251 (1991). Under this standard, defendants may argue that a reasonable person
would have understood the consent provided to White extended to Heck.
To the extent defendants are arguing that consent provided to Officer White extended
to Officer Heck as a matter of law under the “consent once removed” doctrine, United States v.
Diaz, 814 F.2d 454, 459 (7th Cir. 1987), however, the court will reserve a decision on this
issue. The “consent once removed” doctrine applies where an agent or informant “entered at
the express invitation of someone with authority to consent, at that point established the
existence of probable cause to effectuate an arrest or search, and immediately summoned help
from other officers.” Id. Under those circumstances, the consent given to the informant
extends to the assistant officers. Id. Although defendants make a persuasive argument that
the “consent once removed” doctrine should apply in this case, the Seventh Circuit recently
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abrogated the doctrine itself in substantial part. See United States v. Rivera, 817 F.3d 339, 343
(7th Cir. 2016) (holding that “consent once removed” doctrine should be abandoned because
it is based on the false premise that consent to an informant ever extended to law enforcement
officers, but noting that such entries or searches by law enforcement can nearly always be
supported by another permissible ground). As defendants argue, however, the doctrine would
still be relevant to the question of qualified immunity in light of the case law at the time of the
underlying incident, but qualified immunity is an issue to be resolved by the court, not the
jury. Because there remain disputed issues regarding the existence and scope of consent given
Officer White, and whether it was effectively withdrawn, the court will RESERVE any decision
regarding whether that consent should extend to Officer Heck proceeding upstairs as a matter
of law.

ORDER
IT IS ORDERED that:
1. Plaintiff’s motion in limine #1 to preclude defendants’ expert Robert C. Willis from
testifying (dkt. #91), is GRANTED.
2. Plaintiff’s motion in limine #2 to exclude or limit testimony of defendants’ experts
Kip Hartman, Alexander Berkovitz and Christopher Masterson (dkt. #94), is GRANTED IN
PART AND DENIED IN PART, as set forth above.
3. Plaintiff’s omnibus motion in limine #3 (dkt. #95), is GRANTED IN PART AND
DENIED IN PART, as set forth above.
4. Plaintiff’s motion in limine #4 to preclude improper testimony by defense witnesses
(dkt. #96), is DENIED AS MOOT.
5. Defendants’ motion in limine #1 to preclude plaintiff’s expert Ernest Burwell from
testifying (dkt. #60), is GRANTED.

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6. Defendants’ motion in limine #2 to preclude experts and other witnesses from
expressing legal conclusions or other opinions on ultimate verdict questions (dkt. #61), is
DENIED.
7. Defendants’ motion in limine #3 to preclude plaintiff’s expert and other witnesses
from testifying that another witness is or is not credible or is not telling the truth (dkt. #62),
is DENIED AS MOOT.
8. Defendants’ motion in limine #4 to preclude argument, testimony or other evidence
regarding information not known by the officers at the time of plaintiff’s arrest (dkt. #63), is
DENIED as set forth above.
9. Defendants’ motion in limine #5 to preclude evidence or argument criticizing the
conduct of defendants prior to plaintiff being arrested (dkt. #64), is GRANTED IN PART
AND DENIED IN PART, as set forth above.
10. Defendants’ motion in limine #6 to preclude questioning by counsel or testimony
regarding the officers’ subjective motivations, beliefs or states of mind (dkt. #65), is
GRANTED IN PART AND DENIED IN PART, as set forth above.
11. Defendants’ motion in limine #7 to preclude evidence or argument that
defendants’ conduct was inconsistent with departmental policies or procedures, state law
enforcement standards or any other proscriptive guidelines (dkt. #66), is GRANTED IN PART
AND DENIED IN PART, as set forth above.
12. Defendants’ motion in limine #8 to preclude argument, testimony or other
evidence regarding what experts or others would or would not have done if confronted with
the same facts as defendants (dkt. #67), is DENIED.
13. Defendants’ motion in limine #9 to preclude questions, testimony or other
evidence that plaintiff was acquitted in subsequent criminal proceedings (dkt. #68), is
GRANTED.
14. Defendants’ motion in limine #10 to preclude evidence or argument regarding other
use of force incidents (dkt. #69), is GRANTED.
15. Defendants’ motion in limine #11 to preclude evidence or argument suggesting
that Officer Heck’s conduct is to be evaluated based solely on the information available to him,
as opposed to information that was also available to Officer White (dkt. #70), is DENIED
without prejudice.
16. Defendants’ motion in limine #12 to preclude argument, testimony or other
evidence regarding defendants’ employment or disciplinary records (dkt. #71), is GRANTED.

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17. Defendants’ motion in limine #13 to preclude questioning by counsel, testimony
or other evidence criticizing the extent to which plaintiff remained in handcuffs subsequent to
her arrest (dkt. #72), is GRANTED.
18. Defendants’ motion in limine #14 to preclude questioning by counsel, testimony
or other evidence that there was an unidentified third officer (dkt. #73), is DENIED.
19. Defendants’ motion in limine #15 to preclude argument, testimony or other
evidence regarding the existence or absence of post-incident squad car video as well as any
related department policies regarding the same (dkt. #74), is GRANTED IN PART AND
RESERVED in part, as set forth above.
20. Defendants’ motion in limine #16 to prohibiting testimony or argument that
plaintiff was the “victim” of the incident or of any other incident on that night (dkt. #76), is
GRANTED.
21. Defendants’ motion in limine #17 to prohibit testimony or argument regarding
race or racial motivation (dkt. #77), is GRANTED IN PART AND DENIED IN PART, as set
forth above.
22. Defendants’ motion in limine #18 to preclude argument, testimony or other
evidence that plaintiff’s job prospects were impacted by the subsequent criminal proceedings
against her (dkt. #78), is GRANTED.
23. Defendants’ motion in limine #19 to preclude evidence regarding indemnification
(dkt. #79), is GRANTED.
24. Defendants’ motion in limine #20 to preclude “golden rule” testimony and
arguments (dkt. #80), is GRANTED.
25. Defendants’ motion in limine #21 to permit instruction that the officers’ presence
on plaintiff’s stairwell was justified by a lawful Terry stop, independent of consent or exigent
circumstances (dkt. #81), is DENIED.
26. Defendants’ motion in limine #22 regarding jury instruction for common law tort
(dkt. #105), is GRANTED.
27. The court RESERVES decision on defendants’ motion in limine #23 to allow
argument that consent given to either Officer White or Officer Heck by plaintiff or Magada to
be in their home extended to all other law enforcement officers, regardless whether those other
law enforcement officers were directly given express or implied consent (dkt. #106).

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28. Plaintiff may have until September 26, 2018 to file a brief explaining why Officers
White and Heck are not entitled to qualified immunity on her unlawful arrest claim.
Defendants may have until October 5, 2018 to file a response.

Entered this 12th day of September, 2018.
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge

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