The URL can be used to link to this page

Home My WebLink About2019-cv-901 - Surat V. City Of Fort Collins, Et Al. - 212 - Pl's Reply Re Mot In Limine1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 1:19-cv-00901-WJM-NRN MICHAELLA LYNN SURAT, Plaintiff, v. CITY OF FORT COLLINS, Defendant. ______________________________________________________________________ PLAINTIFF’S REPLY TO DEFENDANT’S RESPONSE TO MOTION IN LIMINE ______________________________________________________________________ Plaintiff, by and through her attorneys, David A. Lane and Madison Lips of KILLMER LANE LLP, hereby submits this Reply to Defendant’s Response to her Motion in Limine. ARGUMENT 1. Defendant should be excluded from explicitly referring to the failed defense of self at Ms. Surat’s criminal trial. In its Response to Plaintiff’s Motion in Limine, Defendant correctly points out that this Court has already ruled that Plaintiff must prove a constitutional violation 1 while taking as given that Ms. Surat was resisting a lawful arrest, and that the officer had already attempted to use “lawful lesser force.” [ECF No. 84 at 14-15 (emphasis in original)]. However, Defendant seeks to improperly extend this ruling to require specific reference to a prior criminal jury’s rejection 1 Defendant expresses confusion about Plaintiff’s Monell theory of liability in its Response at Footnote 1. This Court has already clearly ruled in its Order Denying Defendants’ Motion for Summary Judgment that “the Court construes Surat’s claim as premised on the failure to train.” [ECF No. 154 at 10]. Plaintiff is proceeding on the failure to train Monell theory of liability. Case No. 1:19-cv-00901-WJM-NRN Document 212 filed 11/10/23 USDC Colorado pg 1 of 6 2 of Ms. Surat’s affirmative defense of self-defense. That level of specificity was not ordered by this Court’s prior ruling, and is not required or relevant under Fed. R. Evid. 401. Courts have previously instructed that excessive force claims in which a plaintiff was convicted of resisting arrest are not necessarily barred by Heck v. Humphrey, 512 U.S. 477 (1994), but that the jury must be instructed in some way that the plaintiff did resist a lawful arrest. See Martinez v. City of Albuquerque, 184 F.3d 1123, 1127 (10th Cir. 1999); see also Nelson v. Jashurek, 109 F.3d 142, 146 (3rd Cir. 1997). However, courts have specifically authorized trial judges to determine how exactly the jury ought to be instructed. In Nelson v. Jashurek, an excessive force case involving a resisting arrest conviction, the court held that the jury must be “aware that Jashurek was justified in using ‘substantial force’ in arresting Nelson,” quoting the Pennsylvania statute for resisting arrest. Nelson, 109 F.3d at 146. The court then explained that “[w]e leave it to the district court on remand to determine whether it will instruct the jury that Nelson was convicted of resisting arrest or whether the court merely will tell the jury that Jashurek was justified in using substantial force to arrest Nelson.” Id. In Martinez v. City of Albuquerque, an excessive force claim involving a resisting arrest conviction, the Tenth Circuit found that, on remand, “the court must instruct the jury that Martinez’ state arrest was lawful per se,” but did not go so far as to order the trial court to instruct the jury that Martinez was convicted by a criminal jury of resisting arrest. Martinez, 184 F.3d at 1127 (citing Nelson, 109 F.3d at 146). Though perhaps she could, Plaintiff is not asking this Court to exclude reference to Plaintiff’s convictions, but merely to avoid introducing confusing and misleading evidence that a prior criminal jury rejected an affirmative defense of self. This Court has previously ruled that it must be taken as given “that Klamser had first attempted to subdue Surat through lawful lesser force,” as well as “that he was attempting to Case No. 1:19-cv-00901-WJM-NRN Document 212 filed 11/10/23 USDC Colorado pg 2 of 6 3 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.” [ECF No. 84 at 14-15 (emphasis in original)]. Plaintiff is asking this Court to simply leave the jury’s knowledge at that, rather than specifically permitting evidence or instruction that Plaintiff raised an affirmative defense of self that was rejected by a separate jury. The danger of delving into the details of what a prior criminal jury determined is that the civil jury in this case will be improperly influenced by the prior jury’s findings without fully understanding those findings. Courts routinely recognize the improper influence that a prior factfinder’s decision could have on a jury – for example, federal courts frequently exclude evidence of the Equal Employment Opportunity Commission’s prior finding regarding discrimination in a separate jury trial for unlawful employment discrimination under Title VII. See e.g., Tuffa v. Flight Servs. & Sys., 644 F. App'x 853, 856 (10th Cir. 2016) (unpublished) (finding that the district court did not abuse its discretion in excluding a finding of no discrimination by the EEOC from a Title VII trial because it posed a risk of unfair prejudice and juror confusion, in part because of the different standards and burdens of proof); Coleman v. Home Depot, Inc., 306 F.3d 1333, 1345 (3d Cir. 2002) (upholding the district court’s decision to exclude an EEOC determination under Rule 403). Faced with evidence that a prior jury had already determined that Plaintiff’s actions were not justified by self-defense, a civil jury could easily misunderstand this to mean that all of Officer Klamser’s actions were determined by a criminal jury to be justified as well. A civil jury could easily afford this prior criminal jury’s determination improper deference (or at least persuasive effect), without understanding the distinction between self-defense to Officer Klamser’s use of “force which provoked the resistance” as distinguished from the “force used to Case No. 1:19-cv-00901-WJM-NRN Document 212 filed 11/10/23 USDC Colorado pg 3 of 6 4 end that resistance.” [See ECF No. 84 at 12]. This poses an unnecessary danger of confusing or misleading the jury under Fed. R. Evid. 403 that can easily be sidestepped by only instructing the jury “that Klamser had first attempted to subdue Surat through lawful lesser force,” as this Court has already stated in its prior Order. [ECF No. 84 at 15 (emphasis in original)]. Plaintiff therefore requests that evidence of a prior criminal jury’s rejection of an affirmative defense of self should be excluded from this civil trial. 2. Plaintiff ’s performance on probation is not relevant and should be excluded. Defendant argues that Plaintiff’s extension of probation due to marijuana use should be admitted as relevant to her alleged damages. Defendant cites several statements that Plaintiff made in her deposition regarding the difficulty she experienced as a result of this incident. Defendant further states that it should be “permitted to ask Plaintiff about her alleged damages.” [ECF No. 210 at 4]. Plaintiff certainly intends to elicit evidence of her emotional and physical damages as a result of the excessive force. However, this is not a wrongful arrest claim, and therefore Plaintiff ’s criminal sentence will not be part of her damages. Defendant thus has no relevant reason to elicit the fact of her extension of probation due to marijuana use. The only reason Defendant might seek to bring out this information would be to paint Ms. Surat in a negative light, which would be unfairly prejudicial with no probative value. Fed. R. Evid. 403. 3. Officer Klamser’s prior awards or promotions as a police officer are irrelevant and unfairly bolster his credibility before it has been attacked. Defendant claims that Officer Klamser’s promotions and awards from prior to his encounter with Plaintiff constitute “relevant background and experience,” but further claims that these details are relevant because it expects Officer Klamser’s credibility to be attacked by Plaintiff during the trial. [ECF No. 210 at 6]. Klamser is no longer a defendant in this case and character evidence is irrelevant. The only testimony he is expected to give is that what he did to Case No. 1:19-cv-00901-WJM-NRN Document 212 filed 11/10/23 USDC Colorado pg 4 of 6 5 Ms. Surat was “by the book” and consistent with the custom, practice and policies of the Defendant, City of Fort Collins. In fact, it is doubtful that Klamser’s credibility will be attacked at trial, given his expected testimony. In the event, however, that he deviates from his expected course, bolstering his credibility with this information would “be unfairly prejudicial by bolstering Officer Klamser’s reputation as an officer without adding any probative value under Rule 403.” [ECF No. 206 at 6]. “‘[B]olstering’ is the practice of building up a witness’s credibility before impeachment has been attempted.” Brown v. Franklin, No. CIV-09-290-C, 2009 U.S. Dist. LEXIS 97708, at *11 n.10 (W.D. Okla. Sep. 10, 2009) (citing United States v. Green, 258 F.3d 683, 692 (7th Cir. 2001)). While Plaintiff expects Officer Klamser to testify about his relevant training and experience, it is a stretch to claim that his awards demonstrate any relevant additional information about his training beyond improperly bolstering his credibility before it has been impeached. Plaintiff therefore requests this Court to exclude such evidence as improper bolstering and therefore irrelevant and prejudicial under Fed. R. Evid. 401 and 403. CONCLUSION For the foregoing reasons, Plaintiff requests this Court to enter an order excluding any evidence regarding Ms. Surat’s affirmative defense of self-defense raised at the criminal trial, her use of marijuana while on probation, and Officer Klamser’s prior awards or promotions as a police officer as irrelevant per Fed. R. Evid. 401 and 402 or as inadmissible per Fed. R. Evid. 403. DATED this 10th day of November 2023. KILLMER LANE, LLP s/ Madison S. Lips ___________________________ David A. Lane Madison Lips Case No. 1:19-cv-00901-WJM-NRN Document 212 filed 11/10/23 USDC Colorado pg 5 of 6 6 KILLMER LANE, LLP 1543 Champa Street, Suite 400 Denver, CO 80202 (303) 571-1000 dlane@killmerlane.com mlips@killmerlane.com Counsel for Plaintiff Case No. 1:19-cv-00901-WJM-NRN Document 212 filed 11/10/23 USDC Colorado pg 6 of 6