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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. Case No. 1:19-cv-00901-WJM-NRN Document 204 filed 10/20/23 USDC Colorado pg 1 of 11 2 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 Case No. 1:19-cv-00901-WJM-NRN Document 204 filed 10/20/23 USDC Colorado pg 2 of 11 3 (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- Case No. 1:19-cv-00901-WJM-NRN Document 204 filed 10/20/23 USDC Colorado pg 3 of 11 4 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 Case No. 1:19-cv-00901-WJM-NRN Document 204 filed 10/20/23 USDC Colorado pg 4 of 11 5 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 Case No. 1:19-cv-00901-WJM-NRN Document 204 filed 10/20/23 USDC Colorado pg 5 of 11 6 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 Case No. 1:19-cv-00901-WJM-NRN Document 204 filed 10/20/23 USDC Colorado pg 6 of 11 7 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). Case No. 1:19-cv-00901-WJM-NRN Document 204 filed 10/20/23 USDC Colorado pg 7 of 11 8 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 Case No. 1:19-cv-00901-WJM-NRN Document 204 filed 10/20/23 USDC Colorado pg 8 of 11 9 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. Case No. 1:19-cv-00901-WJM-NRN Document 204 filed 10/20/23 USDC Colorado pg 9 of 11 10 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 Case No. 1:19-cv-00901-WJM-NRN Document 204 filed 10/20/23 USDC Colorado pg 10 of 11 11 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 Case No. 1:19-cv-00901-WJM-NRN Document 204 filed 10/20/23 USDC Colorado pg 11 of 11