Turner, Shakia v. Bruce, Andrew et al

Filing 55

ORDER granting in part and reserving in part 25 Motion in Limine; denying in part and reserving in part 31 and 32 Motions in Limine; granting 33 Motion in Limine; granting in part and reserving in part 35 Motion in Limine; granting in part and denying in part 36 Motion in Limine; granting 37 Motion in Limine; granting 38 Motion in Limine; granting 39 Motion in Limine; granting 40 Motion in Limine. Signed by District Judge William M. Conley on 1/22/2019. (arw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
SHAKIA TURNER,
Plaintiff,

OPINION and ORDER

v.
17-cv-578-wmc
OFFICER ANDREW BRUCE and
OFFICER JIM MOROVIC,
Defendants.

Plaintiff Shakia Turner brings claims against Madison Police Officers Andrew Bruce
and Jim Morovic under the Fourth Amendment. A jury trial is set to commence on Monday,
February 4, 2019. In advance of the final pretrial conference scheduled for January 25, 2019,
the court issues the following opinion and order addressing the parties’ motions in limine.

OPINION
I. PLAINTIFF’S OMNIBUS MOTION IN LIMINE (Dkt. #25)
MIL No. 1: Admit the police reports as evidence at trial
Plaintiff seeks an order permitting her to admit as evidence at trial the written police
reports relevant to this matter. In particular, she wants to present Officer Bruce’s written report
describing statements made by Wa Xiong, the person who made the initial police report that a
homeless woman had entered his home and taken a necklace. Plaintiff also wants to present
statements from the person who ultimately was detained as a result of Xiong’s report, Lasandra
Sykes. Defendants do not object to admission of Xiong’s statements, but object to Sykes’s
statements on relevance grounds.

Because plaintiff did not file the police reports with her motion, it is difficult for the
court to rule on the admissibility of the reports or the particular statements she wishes to
introduce.

From the parties’ vague descriptions of the reports, it appears that some (or

statements within some reports) may well be relevant and admissible, while others may not.
For example, statements by Xiong to Office Bruce would seem directly relevant to what
information he possessed at the time he approached plaintiff. In contrast, Lasandra Sykes’s
statements appear irrelevant to the issues in this case, in light of the fact that she spoke to
officers after the incidents at issue in this case had concluded. Nor has plaintiff explained why
Sykes’s statements to the police would be relevant to the claims in this case. Plaintiff is,
therefore, direct to provide the court with hard copies of the actual police reports she seeks to
introduce at trial by 4:30 p.m. today, highlighting those statements and other information she
believes are relevant to the issues in dispute, with a brief written justification as to why. In the
meantime, I will reserve on the admissibility of statements or information in the reports.
This motion will be RESERVED as set forth above pending an adequate proffer and
argument at the Final Pretrial Conference.
MIL No. 2: Exclude evidence or testimony regarding any prior lawsuits involving
plaintiff
This motion will be GRANTED as unopposed.
MIL No. 3: Preclude evidence of other police contacts plaintiff has had outside the
incident in this case
This motion will be GRANTED as unopposed.
MIL No. 4: Preclude evidence of plaintiff’s prior convictions
This motion will be GRANTED as unopposed.
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MIL No. 5: Prohibit any witness disclosed as an unretained expert from offering
opinions on whether defendants’ conduct violated plaintiff’s civil rights
Plaintiff contends that because Officers Bruce and Morovic could not remember any
specific training they received on “Terry” stops or arrests, no witness should be able to testify
regarding the training MPD provides or whether the officers complied with their training or
MPD standards. While defendants object to plaintiff’s characterization of their deposition
testimony, it appears both officers testified at their depositions that they received extensive
training, but that they could not recall specific details. Regardless, defendants agree that
testimony or evidence as to any training they received, whether adequate or not, and whether
their actions were consistent with training, policies or procedures, are ultimately irrelevant to
this case. The court agrees. This case does not involve a failure to train claim against the city
and does not present complex issues about whether an officer’s use of force or other action was
consistent with their training or violated contemporary police standards. Therefore, evidence
regarding whether Officers Bruce and Morovic received or complied with MPD training or
standards is irrelevant.
Accordingly, this motion will be GRANTED.

II. DEFENDANTS’ MOTIONS IN LIMINE
MIL No. 1: Foreclose questions on the special verdict, as well as argument, testimony,
and other evidence, as to excessive force (dkt. #31), and
MIL No. 2: Defendants are entitled to qualified immunity (dkt. #32)
Defendants’ motions in limine no. 1 and no. 2 concern the reach of plaintiff’s excessive
force claim under the Fourth Amendment, and whether defendants are entitled to qualified

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immunity as to that claim. Given that these motions are interrelated, the court considers them
together.
In her complaint, plaintiff identifies three Fourth Amendment violations: (1)
investigatory stop (Terry stop) without reasonable suspicion; (2) arrest without probable cause;
and (3) excessive force. Through their motions in limine and their proposed jury instructions,
defendants seek an order permitting plaintiff to present only the claim challenging defendants’
legal basis for conducting an investigatory stop. In particular, defendants argue that the video
recording of the incident establishes that this is not an arrest case, and that plaintiff’s excessive
force claim rises and falls with her Terry stop claim. Finally, they argue that they are entitled
to qualified immunity on all of plaintiff’s claims in light of this tape.
In response, plaintiff argues that defendants forfeited their opportunity to narrow
plaintiff’s claims by failing to seek summary judgment on any of her claims before trial.
Additionally, plaintiff argues that the court should not entertain defendants’ arguments before
any evidence has been presented. Both are valid points. Still, because defendants included a
qualified immunity defense in their answer, defendants did not waive their qualified immunity
defense by failing to raise it in a motion for summary judgment. Dominguez v. Hendley, 545
F.3d 585, 589 (7th Cir. 2008). As for the sufficiency of the evidence, the court has viewed the
video footage of the interaction between plaintiff and defendants, which certainly undermines
the viability of plaintiff’s false arrest claim. Therefore, the court will not reject defendants’
arguments out of hand simply because they could, and probably should, have been raised
earlier.
The court will turn first to defendants’ argument regarding the false arrest claim. Even
when viewed most favorably to plaintiff, defendants argue that the video footage does not
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support a claim of false arrest because it is clear that plaintiff was never “arrested.” After
viewing the video footage, the court agrees. Although “no bright line exists to determine when
a legitimate Terry stop evolves into an illegal arrest,” Smith v. Ball State Univ., 295 F.3d 763,
768 (7th Cir. 2002), a stop that is brief, minimally intrusive, and supported by reasonable
suspicion, will likely qualify as a Terry stop. United States v. Bullock, 632 F.3d 1004, 1015 (7th
Cir. 2011). In contrast, a stop that is prolonged unnecessarily by the officers or involves the
“hallmarks of formal arrest,” such as applying handcuffs, drawing weapons, and placing
suspects in police vehicles, may either be a reasonable investigatory detention or may be an
arrest, depending on the circumstances. Id. See also Matz v. Klotka, 769 F.3d 517, 524–25 (7th
Cir. 2014) (Terry stop “may also become a de facto arrest if the detention continues longer than
necessary to accomplish the purpose of the stop or becomes ‘unreasonably intrusive.’”)
(citations omitted).
Notwithstanding plaintiff’s contention that her arm was at one point twisted in a
painful manner, the video footage establishes that the defendants’ detention of plaintiff was
brief and minimally intrusive. Indeed, the entire interaction between plaintiff and defendants
was five or six minutes long. Although defendants told plaintiff at one point during the
interaction that she was being detained and that she could not leave, a brief detention for
investigatory purposes, which this plainly was, is the hallmark of a Terry stop, not an arrest.
Hiibel v. Sixth Judicial Dist. Court of Nevada, Humboldt Cty., 542 U.S. 177, 185 (2004) (“[L]aw
enforcement officer’s reasonable suspicion that a person may be involved in criminal activity
permits the officer to stop the person for a brief time and take additional steps to investigate
further[,]” including asking “questions concerning a suspect’s identity[.]”). Indeed, barring
plaintiff proffering some additional evidence at the Final Pretrial Conference, no one ever told
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her that she was being arrested; she clearly understood that, repeatedly making clear that she
was standing her ground and would not cooperate; she was spoken to calmly and respectfully;
except for a very brief grabbing of the wrist on her camera hand, she was never even touched;
she was certainly not handcuffed or required to lie on the ground; no weapons were drawn; and
she was not placed in a squad car, nor transported to another location. See Matz, 769 F.3d at
526 (describing “hallmarks of formal arrest”). Finally, defendants expressly told plaintiff she
was not being arrested, but that she was being detained so that they could investigate. In light
of the video footage of the incident in question, therefore, the court will not permit plaintiff to
present a theory of false arrest at trial, absent the proffering of some additional facts and
contrary case law at the Final Pretrial Conference.
The next question is a much closer one: whether plaintiff should be permitted to
present an excessive force claim at trial. Defendants argue that the jury should be asked only
whether defendants had reasonable suspicion sufficient to justify the Terry stop, arguing that
if they were justified in stopping plaintiff for purposes of an investigatory detention, then the
amount of force Officer Bruce used was reasonable as a matter of law. On the other hand, if
defendants lacked reasonable suspicion, defendants concede that the amount of force used was
unreasonable as a matter of law. Thus, defendants argue, the only question the jury need
decide is whether defendants conducted a lawful Terry stop. However, the law and facts here
are not nearly as simple as defendants suggest.
The video certainly shows, and there appears no dispute, that Officer Bruce grabbed
plaintiff’s arm, whether because he was attempting to prevent her from videotaping the
interaction, as plaintiff claims, or was attempting to handcuff her to continue his investigation,
as defendant Bruce claims. If the jury finds Bruce’s action was motivated to prevent the filming
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and, as plaintiff further claims, that he grabbed and sufficiently twisted her arm to inflict pain,
then a jury might reasonably find that defendant Bruce used excessive force. Moreover, even
if it is an open question under the law whether an officer could take a phone out of a person’s
hand during a Terry stop (which is problematic at best), there is no doubt the police may not
use excessive force in doing so.
Defendants further argue that “case law in the Seventh Circuit is now clear that
handcuffing alone is per se reasonable during an investigatory stop supported by reasonable
suspicion” (Dfts.’ Br., dkt. #31, at 4), essentially contending that whatever Bruce’s subjective
motivation may have been for grabbing and twisting, he had an objective right to do so to
handcuff her or otherwise physically detain her to conduct an investigation.

Regardless,

defendants are simply wrong that it is “per se reasonable” for officers to use handcuffs during
an investigatory detention.
Instead, the Seventh Circuit has stated that whether the use of force during a stop is
reasonable depends on the “totality of the circumstances,” and that there are a “limited set of
circumstances in which handcuffs are appropriate without converting a Terry stop into a full
arrest.” Howell v. Smith, 853 F.3d 892, 898 (7th Cir. 2017). See also Ramos v. City of Chicago,
716 F.3d 1013, 1017–18 (7th Cir. 2013) (“[A]lthough we have upheld the use of handcuffs to
ensure officer safety in a Terry stop of brief duration, without automatically escalating the
situation to an arrest, that does not mean that law enforcement has carte blanche to handcuff
routinely. The proliferation of cases in this court in which ‘Terry’ stops involve handcuffs and
ever-increasing wait times in police vehicles is disturbing, and we would caution law
enforcement officers that the acceptability of handcuffs in some cases does not signal that the
restraint is not a significant consideration in determining the nature of the stop.”).
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Although there may be an argument that Officer Bruce’s use of force was reasonable in
light of the totality of the circumstances, defendants have not tried to make that argument. In
particular, defendants do not explain why handcuffing plaintiff was necessary in light of the
fact that two officers were present, and plaintiff does not appear to have presented any safety
risk or attempted to leave. On the contrary, she appears from the tape to have decidedly and
intentionally simply been uncooperative. For these reasons, defendants’ motion requesting
that the jury not be presented with an excessive force question or jury instruction will be
denied.
This leaves the question of qualified immunity. On this question, the court agrees with
plaintiff that defendants’ motion is premature. Until evidence is actually presented at trial,
the court cannot determine whether defendants are entitled to qualified immunity, either for
Office Bruce’s decision to detain plaintiff for an investigatory stop or for his use of force.
Indeed, despite defendants’ last-minute decision to provide the video tape, this court does not
even have a proffer from plaintiff as to what she expects the evidence will show at trial. Having
said that, plaintiff will be required to make a proffer as to the basis for proceeding against
Officer Morovic, who appears to have arrived late on the scene, seems to have had little time
to assess Officer Bruce’s decision to detain the plaintiff, and relatively quickly participated in
a decision to let her go. Stated another way, it remains uncertain what clearly established
constitutional right defendant Morovic even arguably violated during his very brief encounter
with the plaintiff on an objective basis.
Accordingly, while defendants’ motion relating to qualified immunity will be DENIED
without prejudice, defendants may renew their arguments at the Final Pretrial Conference and
after plaintiff has presented her evidence at trial.
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MIL No. 3: Preclude argument, testimony or other evidence that plaintiff suffered
physical injury or a loss of earning capacity as a result of the incident (dkt. #33)
Defendants move to preclude plaintiff from presenting any argument, testimony or
other evidence that she suffered physical injury or a loss of earning capacity as a result of the
incident. Plaintiff has responded that she does not intend to present any such evidence beyond
her own testimony that Officer Bruce’s use of force caused her pain. Since defendants have
identified no valid basis for precluding plaintiff from testifying as to her subjective experience
of her pain (and do not even appear to be arguing that she be precluded from doing so),
defendants’ motion will be GRANTED, with the exception that plaintiff may testify as to the
pain she experienced from Bruce’s use of force.

MIL No. 4: Preclude questioning, testimony or other evidence that plaintiff received a
citation or that the citation was dismissed (dkt. #35)
The day following Turner’s brief detention, Officer Bruce issued her a citation for
violation of Madison Municipal Ordinance § 5.06(2) for resisting/obstructing a police officer,
but MPD later asked that the citation be dismissed and it was. Defendants seek to preclude
plaintiff from presenting any evidence, testimony or argument regarding the citation or the
dismissal on the ground that such evidence is irrelevant to Turner’s civil rights claims and
would be prejudicial to defendants. On the other hand, plaintiff argues that the MPD or city
attorney decision to dismiss the citation because of “burden of proof” issues is relevant to
defendants’ credibility, motivation and intent.
The court agrees with defendants that evidence relating to the citation should be
excluded, unless defendants somehow open the door at trial. The principle problem with
introducing this evidence is that plaintiff brought no claim for retaliation for issuance of the
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citation. Therefore, introduction of the citation would largely be a sideshow and unfairly
prejudicial to defendants regardless what their motivation might have been for issuing the
citation the following day. Whether defendants, someone else at MPD or the city attorney
decided to pursue a charge for resisting/obstructing against plaintiff is not determinative, or
even particularly probative, of whether defendants had reasonable suspicion to detain her the
previous day or used excessive force against her in doing so.

Admittedly, the fact that

defendants decided to issue the citation after having time to deliberate may be some evidence
of their defensiveness or ill-will, but significant prejudice or confusion could arise if the jury
retroactively seeks to gauge the reasonableness of defendants’ decision to stop and briefly
detain plaintiff against the knowledge that plaintiff was not prosecuted for resisting/obstructing
an officer. This is especially true because the standard for Fourth Amendment liability is one
of an objective officer and not based on the motivation of a particular defendant. Accordingly,
this motion will be GRANTED as to the liability phase of trial and RESERVED for further
argument at the Final Pretrial Conference as to possible relevance to damages.

MIL No. 5: Preclude argument, testimony, or other evidence regarding information not
known by the officers at the time of their interactions with plaintiff (dkt. #36)
Defendants move to preclude argument, testimony or other evidence regarding any
information not known by the officers at the time of their interactions with plaintiff, including
in particular, that plaintiff was not the person who entered Wa Xiong’s home and that plaintiff
was actually attempting to visit a relative when Officer Bruce stopped her. Defendants argue
that because the Fourth Amendment is an objective standard, only the information known and
available to Officers Bruce and Morovic is relevant to whether they had reasonable suspicion
to stop and detain plaintiff.
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At best, defendants’ motion is too sweeping in scope. In general, defendants are correct
that information not known to them at the time of plaintiff’s initial detention would be
irrelevant to liability. See Doornbos v. City of Chicago, 868 F.3d 572, 579 (7th Cir. 2017)
(question under Fourth Amendment is whether officer’s conduct was “was objectively
reasonable given the information he or she knew at the time”). Still, at least in some
circumstances, information unknown to the officer at the time of the conduct may be admitted
“if it tends to make one side’s story more or less believable” id., or if “its exclusion would leave
a chronological and conceptual void in the story.” Whitehead v. Bond, 680 F.3d 919, 930 (7th
Cir. 2012).
So far, however, plaintiff has not identified any specific information not known by
defendants at the time of the detention that she believes should be admitted. The information
about who plaintiff was visiting and whether she was the person who entered Wa Xiong’s
residence does not appear relevant to liability, unless defendants opened the door through
cross-examination or otherwise by suggesting that plaintiff’s disputed actions at the time she
was stopped gave rise to reasonable suspicion. On the other hand, information not known to
defendants would certainly become relevant during the damages phase of trial. Thus, the court
will GRANT defendants’ motion as to information not known to defendants at the time of
plaintiff’s initial detention, subject to plaintiff making a proffer regarding the relevance of
specific evidence at the Final Pretrial Conference. However, the court will DENY the motion
with respect to the damages phase of trial, subject to defendants identifying what evidence
would have no bearing on plaintiff’s pain and suffering or argument for punitive damages.

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MIL No. 6: Preclude argument, testimony or other evidence regarding defendants’
promotion or disciplinary records (dkt. #37)
Defendants move to preclude argument, testimony or other evidence regarding their
employment or disciplinary records. Plaintiff does not oppose this motion, but does intend to
introduce evidence relating to the complaint she filed with MPD about the incident.
Defendants have not argued that evidence relating to plaintiff’s complaint should be excluded.
Therefore, the motion will be GRANTED, while reserving on whether plaintiff may introduce
evidence relating to the complaint she filed with MPD until the Final Pretrial Conference.

MIL No. 7: Preclude evidence or argument regarding other police incidents (dkt. #38)
Defendants move to preclude plaintiff introducing evidence, argument or testimony
regarding other unrelated police incidents in Madison or elsewhere. This motion will be
GRANTED as unopposed.

MIL No. 8: Preclude evidence regarding indemnification (dkt. #39)
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. Of course, this will also preclude
defendants from arguing an inability to pay or lack of financial resources, should the court
allow a punitive damages claim to be asserted at trial.

Accordingly, this motion will be

GRANTED.

MIL No. 9: Prohibit “golden rule” testimony and arguments (dkt. #40)
This motion will be GRANTED as unopposed.
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ORDER
IT IS ORDERED that:
1. Plaintiff’s omnibus motion in limine (dkt. #25) is GRANTED IN PART and
RESERVED IN PART as set forth above.
2. Defendants’ motions in limine ##1 and 2 to preclude use of force verdict questions
and evidence (dkt. #31) and for qualified immunity (dkt. #32), are DENIED as to defendant
Bruce and RESERVED as to defendant Morovic as set forth above.
3. Defendants’ motion in limine #3 to exclude damages evidence requiring expert
testimony (dkt. #33) is GRANTED as set forth above.
4. Defendants’ motion in limine #4 to preclude evidence of plaintiff’s citation and its
dismissal (dkt. #35) is GRANTED as to the liability phase and RESERVED as to the damages
phase as set forth above.
5. Defendants’ motion in limine #5 to limit evidence and testimony to information
actually known by defendants (dkt. #36) is GRANTED IN PART and DENIED IN PART as
set forth above.
6. Defendants’ motion in limine #6 to exclude evidence regarding defendants’
disciplinary or promotional history (dkt. #37) is GRANTED.
7. Defendants’ motion in limine #7 to exclude evidence regarding other unrelated
police incidents (dkt. #38) is GRANTED.
8. Defendants’ motion in limine #8 to exclude evidence of indemnification (dkt. #39)
is GRANTED.
9. Defendants’ motion in limine #9 to exclude “golden rule” testimony and arguments
(dkt. #40) is GRANTED.

Entered this 22nd day of January, 2019.
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge

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