HomeMy WebLinkAbout2019-cv-901 - Surat V. City Of Fort Collins, Et Al. - 204 - Df's Motion In LimineIN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 19-cv-00901-WJM-NRN
MICHAELLA LYNN SURAT,
Plaintiff,
v.
CITY OF FORT COLLINS, a municipality,
Defendant
DEFENDANT’S MOTION IN LIMINE
Defendant the CITY OF FORT COLLINS, a municipality (“City”), by and through its
attorneys, submit the following as their Motion In Limine:
CERTIFICATE OF COMPLIANCE
Mark S. Ratner of Hall & Evans, LLC, conferred with Counsel for Plaintiff with respect to
the relief requested in this Motion, and Plaintiff’s position is as follows: (1) Plaintiff objects to
precluding evidence of prior complaints, internal investigations, settlements, and other alleged
prior misconduct; (2) Plaintiff does not object to mentioning “George Floyd” but believes “other
such matters” is too vague and therefore Plaintiff objects; (3) Plaintiff objects to precluding any
reference to a traumatic brain injury; (4) Plaintiff does not object to precluding a reference to
punitive damages, unless and until any such damage are authorized.
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I. INTRODUCTION
Plaintiff filed her Complaint and Jury Demand (“Initial Complaint”) in this matter on
March 26, 2019, naming as Defendants the City of Fort Collins (“City”) and City of Fort Collins
Police Officer Randall Klamser, in his individual capacity. The Initial Complaint generally alleged
a violation of Plaintiff’s Fourth Amendment rights arising out of her arrest and use of force by
Officer Klamser (ECF 1). Plaintiff also alleged Officer Klamser’s use of force was proximately
caused by the City’s unconstitutional custom, practices and/or policies. The Defendants filed a
motion to dismiss the Initial Complaint (“2019 Motion to Dismiss”) arguing Plaintiff’s excessive
force claim was barred by Heck v. Humphrey, 512 U.S. 477 (1994) (ECF 23). After briefing, this
Court issued its Order granting in part and denying in part the 2019 Motion to Dismiss and denying
Defendants’ Motion to Supplement (ECF 84). With respect to the excessive force claim against
Officer Klamser, this Court held any claim arising prior to Officer Klamser’s takedown of Plaintiff
was barred by Heck and therefore Plaintiff’s claim was limited to the question of whether Officer
Klamser used greater force than reasonably necessary to overcome Plaintiff’s resistance during the
takedown (ECF 84 at 10-13 (“In this light, the Court deems Surat to confess Defendants’ Heck
argument as to everything before the takedown, and Defendants’ motion will be granted with
prejudice as to any claim of excessive force based on Klamser’s alleged pre-takedown actions”)).
An amended complaint was filed, the lawsuit was litigated, a motion for summary
judgment was filed and denied, and Officer Klamser filed an appeal on the issue of qualified
immunity. On November 9, 2022, the Tenth Circuit determined Officer Klamser was entitled to
qualified immunity and should be dismissed from the lawsuit. See Surat v. Klamser, 53 F.4th 1261
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(10th Cir. 2022). This matter was remanded, with the City of Fort Collins remaining as the only
defendant.
A four-day trial is set to begin on May 13, 2024. Pursuant to the Court’s Order (ECF 196),
the City submits the following as its Motion In Limine seeking preclusion of the following: (1)
formal and informal complaints of excessive force, lawsuits, settlements, internal affairs
investigations, or other allegations of improper conduct involving City of Fort Collins Police
Officers, including but not limited to the Mason, Wiedrich, Stanley Cropp, Dakota McGrath, Joe
Heneghan, Kimberly Chancellor, Natasha Patnode, and Sean Slatton matters; (2) mentioning or
otherwise referring to police protests or other incidents involving the use of force by law
enforcement, including but not limited to George Floyd, Breonna Taylor, and Eric Garner; (3)
mentioning or otherwise referring to Plaintiff suffering a traumatic brain injury, and; (4)
mentioning or otherwise referring to punitive damages.
II. ARGUMENTS
A. Plaintiff should be precluded from introducing as evidence or eliciting testimony any
unrelated formal and informal complaints of excessive force, lawsuits, settlements,
internal investigations, or other allegations of improper conduct.
1. Plaintiff can offer no factual similarity between previous complaints, internal
investigation, settlements, or improper conduct, and the present matter.
At the time of trial, Plaintiff intends to introduce evidence of formal and informal
complaints of excessive force, lawsuits, settlements, internal affairs investigations, or other
allegations of improper conduct involving City of Fort Collins Police Officers. Plaintiff’s exhibit
list, submitted prior to the appeal in this matter (ECF 177-3), identifies certain exhibits in an effort
to admit previous, unrelated complaints and internal affairs investigations. In particular, Plaintiff
identifies the “Mason Internal Affairs Investigation,” (ECF 177-3 at 18-19, referring to ECF 128-
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16), and the “Wiedrich Internal Affairs Investigation” (ECF 177-3 at 20, referring to ECF 128-18).
Additionally, Plaintiff references other complaints of excessive force, lawsuits, settlements, and
internal investigations as part of her case against the Defendant, as set forth in the previous Final
Pretrial Order, conferral correspondence, and Complaint (See ECF 177 at 8-11; Exhibit A
(referencing an amendment to the Final Pretrial Order to add witnesses Patnode, Chancellor, and
Slatton), and; ECF 107 at ¶¶ 55, 57, 58, 59, 60, 61 (referencing Stanley Cropp, Dakota McGrath,
Joe Heneghan, Kimberly Chancellor, Natasha Patnode, and Sean Slatton, respectively)). This
Motion In Limine is intended to seek preclusion of not only the exhibits and/or testimony
referenced in the Complaint and previous Final Pretrial Order, but all potential exhibits and/or
references to other complaints, internal investigations, settlements, and alleged misconduct
unrelated to the present matter. Based on the lack of similarity to the facts in this matter, any such
information is irrelevant to the single claim a jury will decide.
“In order to state a claim for municipal liability under § 1983 for the actions of a municipal
employee, a party must allege sufficient facts to demonstrate that it is plausible…(2) that a
municipal policy or custom was the moving force behind the constitutional deprivation.”
Hernandez v. City and County of Denver, 2022 U.S. Dist. LEXIS 151302 at *7, citing Jiron v.
City of Lakewood, 392 F.3d 410, 410 (10th Cir. 2004). “Municipalities may ‘incur liability when
they adopt unconstitutional ‘longstanding practice[s] or custom[s]’ that become ‘standard
operating procedures[s]’” Hernandez, 2022 U.S. Dist. LEXIS 151302, at *12, citing Murphy v.
City of Tulsa, 950 F.3d 641, 649 (10th Cir. 2019), citing Jett v. Dallas Indep. Sch. Dist., 491 U.S.
701, 737 (1989)). “In attempting to prove the existence of such a continuing, persistent and
widespread custom, plaintiffs most commonly offer evidence suggesting that similarly situated
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individuals were mistreated by the municipality in a similar way.” Hernandez, 2022 U.S. Dist.
LEXIS 151302, at *12-13, citing Carney v. City & County of Denver, 534 F.3d 1269, 1274 (10th
Cir. 2008). In review of previous complaints of excessive force Plaintiff intends to use to establish
municipal liability, “the Court must consider which of these alleged incidents are sufficiently
similar to the facts of this case to constitute a municipal policy or custom…” Hernandez, 2022
U.S. Dist. LEXIS 151302 at *13-14, referring to Sexton v. City of Colorado Springs, 530 F. Supp.
3d. 1044, 1069 (D. Colo. 2021) and Carney, 534 F.3d at 1274. This Court previously framed the
proper factual scenario to be considered, given Plaintiff’s convictions for resisting arrest and
obstruction of a police officer, and the criminal jury’s rejection of her self-defense argument. (See
ECF 1 at ¶ 37; ECF 55-1). Specifically, in addressing the application of qualified immunity and
the potential for invalidating Heck v. Humphrey, 512 U.S. 477 (1994), this Court held:
To avoid implying the invalidity of these convictions, Surat must prove that
Klamser’s takedown was objectively unreasonable under all the circumstances
while taking as given that he was attempting to effect an arrest and, in the process,
the arrestee’s actions were subjecting him to, or threatening him with, physical
force or violence, or putting him at substantial risk of bodily injury. Cf. Martinez,
184 F.3d at 1127 (‘the [district] court [on remand] must instruct the jury that
Martinez’ state arrest was lawful per se’). Moreover, if one accounts for the failure
of the self-defense argument, Surat must prove that Klamser’s takedown was
objectively unreasonable while taking as given all of the foregoing and the fact
that Klamser had first attempted to subdue Surat through lawful lesser force.
(ECF 84 at pp.14-15 (emphasis in original)).
To be factually similar, Plaintiff’s potential evidence of previous complaints, internal
investigations, and misconduct, must involve the use of a rowing arm takedown, on an
uncooperative and intoxicated arrestee, who interfered with an officer’s interview of a suspect,
refused his directions to stay away, struck him multiple times, subjected him to physical force or
violence and put him at substantial risk of bodily injury (See e.g. ECF 84 at 15 (“Finally, if Klamser
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ever asserts qualified immunity … then Surat’s burden is even more formidable. She must prove
that it was clearly established as of April 6, 2017, that a police officer attempting to effect an arrest
and being subjected to or threatened with physical force or violence, or facing a substantial risk of
bodily injury, and who has already tried lawful lesser force to subdue the arrestee, cannot use a
takedown maneuver used in this case to eliminate that actual or threatened force or risk of
injury.”)).
None of the above-referenced matters Plaintiff seeks to introduce into evidence involve
facts remotely similar to those presented here, and Plaintiff can provide no basis with respect to
any similarity. Perhaps most importantly, none of the cited matters involve someone who was
convicted of resisting arrest, obstruction of a police officer, or whose defense of self-defense, was
denied by a criminal jury. Furthermore, none of the cited matters involved a situation where a
police officer attempted to effectuate an arrest, while first attempting to use a lesser degree of
force, and the officer was subjected to or threatened with physical force, violence, or faced a
substantial risk of bodily injury. Therefore, any reference to previous complaints, internal affairs
investigations, or other misconduct, should be precluded.
To any extent that Plaintiff intends to introduce settlements of the previous matters, she
also should be precluded from doing so. “(S)ettlements are ‘impertinent and have no bearing on
[a] Monell claim.’” Hernandez, 2022 U.S. Dist. LEXIS 151302, ftnt. 4, referring to Minor v.
Cnty. of Los Angeles, 2015 WL 13711269 at *2-3 (C.D. Cal. Sept. 23, 2015) (“Unlike a jury
verdict, a settlement…does not constitute a finding of liability or an admission of misconduct.
Liability and misconduct should not be inferred from a settlement.”) Furthermore, the inclusion
of information respecting settlements is highly prejudicial to the City of Fort Collins, as it suggests
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to a jury some form of “guilt,” which may be imputed to the present lawsuit. “(T)he prejudicial
effect of allowing a jury to hear of the circumstances surrounding the settlement of a claim was
one of the concerns that motivated the drafters of the Federal Rules of Evidence to absolutely
prohibit the use of evidence of a settlement to prove liability or the amount of a claim. Orth v.
Emerson Elec. Co., White-Rodgers Div., 980 F.2d 632, 639 (1992), citing Fed. R. Evid. 408.
“Although Rule 408 does not prohibit the admission of evidence of . . . a settlement to prove
something other than liability[,] . . . many of the same concerns about prejudice and deterrence to
settlements exist regardless of the purpose for which the evidence is offered.” Orth, 980 F.2d at
639, citing Weir v. Federal Ins. Co., 811 F.2d at 1395.
Plaintiff should also be precluded from using the internal affairs investigations and the
absence of discipline, to somehow establish municipal liability, as any such use is improper.
“(R)arely if ever is the ‘failure of a police department to discipline in a specific instance…an
adequate basis for municipal liability under Monell.’” Hernandez, 2022 U.S. Dist. LEXIS 151302
at *22, citing Schneider v. City of Grand Junction Police Dept., 717 F.3d, 760, 777 (10th Cir.
2013), citing Butler v. City of Norman, 992 F.2d 1053, 1056 (10th Cir. 1993)). Again, Plaintiff
can present no factual similarity between the previous internal affairs investigation and the
investigation involving Officer Klamser, with respect to discipline and therefore all internal
investigations should be precluded. Furthermore, any evidence regarding a lack of discipline
cannot be used to support a ratification theory. “(R)atification is more than acquiescence, and a
mere failure to discipline does not amount to ratification.” Hernandez, 2022 U.S. Dist. LEXIS
151302, ftnt. 2. See Erickson v. City of Lakewood, 489 F. Supp. 3d 1192, 1207 (D. Colo. 2000),
citing Jack v. Cty. Of Stanislaus, 2017 WL 4123930 at *7 (E.D. Cal. Sept. 15, 2017).
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2. Evidence regarding unrelated complaints, lawsuits, settlements, or internal
investigations are not relevant pursuant to Fed. R. Evid. 402.
Evidence is relevant if “it has any tendency to make a fact more or less probable than it
would be without the evidence” and “the fact is of consequence in determining the action.” Fed.
R. Evid. 401. Evidence concerning formal and informal complaints of excessive force, lawsuits,
settlements, internal investigations, or other allegations of improper conduct either by Officer
Klamser or other Police Officers with the City of Fort Collins Police Department, which are
factually dissimilar, are not relevant to the claims in this lawsuit. The circumstances surrounding
unrelated allegations cannot be said to make any facts any more or less probable and Plaintiff
cannot identify how the proposed evidence might establish any element of liability respecting
claims of excessive force and municipal liability.
3. Admission of evidence of other complaints creates the potential for unfair
prejudice, confusion of the issues, and a waste of time in violation of Fed. R. Evid.
403.
Even if the proposed evidence is relevant, any such evidence should be excluded “if its
probative value is substantially outweighed by a danger of …unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”
Fed. R. Evid. 403. See Upky v. Lindsey, 2015 WL 3862944 at *11 (D.N.M., June 3, 2015). Here
any probative value of evidence relating to the other complaints, lawsuits, settlements, or
investigations, is substantially outweighed by the danger of unfair prejudice to the Defendants. See
Martinez v. Gabriel, 2013 WL 798236 at *2 (D. Colo. 2013); See also Tanberg v. Sholtis, 401
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F.3d 1151, 1168 (referring to evidence of other acts involving uses of force as “highly prejudicial
evidence”).
B. Plaintiff should be precluded from mentioning “George Floyd”, police protests, or
other incidents involving law enforcement.
It is expected Plaintiff, Plaintiff’s Counsel, and Plaintiff’s witnesses will refer to the death of
George Floyd at the hands of a police officer, the ensuing protests, as well as any other incidents
involving the use of force by law enforcement. Any such discussion is inappropriate as it has no
relationship or relevancy to the factual circumstances in this matter, and should be precluded
pursuant to Fed. R. Evid. 401 and 402. See also Magana v. City of Los Angeles, No.
219CV03631CASAGRX, 2021 WL 809402 at *2–3 (C.D. Cal. Mar. 1, 2021) (The Court
concludes that evidence of unrelated, high-profile shootings at the hands of police officers is
irrelevant and unfairly prejudicial.”) Id., citing Dominguez v. City of Los Angeles, No. CV-17-
4557 DMG (PLAx), 2018 WL 6164278, at *14 (C.D. Cal. Oct. 9, 2018) (“Other incidents
involving law enforcement and the use of deadly force, [] are irrelevant to Medina's liability in the
instant case.” (citation omitted)). Plaintiff does not object to precluding any such information.
C. Plaintiff should be precluded from mentioning “traumatic brain injury.”
Throughout the litigation of this matter, Plaintiff’s Counsel has represented Plaintiff
suffered a traumatic brain injury. There has, however, been no expert medical testimony any such
injury occurred. Therefore, Plaintiff, Plaintiff’s Counsel, and any witnesses should be precluded
from mentioning or referring to “traumatic brain injury” pursuant to Fed. R. Evid. 402 and 602.
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D. Plaintiff should be precluded from mentioning or arguing for punitive
damages.
The only remaining defendant in this matter, is the City of Fort Collins. Punitive damages,
although prayed for in the Complaint, are not recoverable against the City of Fort Collins. “[W]e
hold that a municipality is immune from punitive damages under 42 U. S. C. § 1983.” Newport v.
Fact Concerts, 453 U.S. 247, 271 (1981). Therefore, any such arguments or evidence is irrelevant
pursuant to Fed. R. Evid. 401 and 402. Plaintiff does not object to this request.
Dated this 20th day of October, 2023.
Respectfully submitted,
s/ Mark S. Ratner
Mark S. Ratner, Esq.
Gina Rossi, Esq.
Robert Weiner, Esq.
Hall & Evans, L.L.C.
1001 17th Street, Suite 300, Denver, CO 80202
303-628-3300 /Fax: 303-628-3368
ratnerm@hallevans.com
rossig@hallevans.com
weinerr@hallevans.com
and
s/ John R. Duval
John R. Duval, Esq.
Deputy City Attorney
City of Fort Collins
P.O. Box 580
Fort Collins, CO 80522
970-221-6520
jduval@fcgov.com
ATTORNEYS FOR DEFENDANTS
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CERTIFICATE OF SERVICE (CM/ECF)
I hereby certify that on the 20th day of October 2023, a true and correct copy of the
foregoing DEFENDANT’S MOTION IN LIMINE was filed with the Court via CM/ECF and
served on the below-listed party by email:
David Lane, Esq.
dlane@kln-law.com
Andy McNulty, Esq.
amcnulty@kln-law.com
Catherine Ordoñez, Esq.
cordonez@kln-law.com
Maddie Lips, Esq.
mlips@kln-law.com
s/Sarah Stefanick
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