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Home My WebLink About2019-cv-901 - Surat V. City Of Fort Collins, Et Al. - 209 - Pl's Resp Df's 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 RESPONSE TO DEFENDANT’S MOTION IN LIMINE ______________________________________________________________________ Plaintiff, by and through her attorneys, David A. Lane and Madison Lips of KILLMER LANE LLP, hereby submits this Response to Defendant’s Motion in Limine. Because Plaintiff only objects to Points A and C of Defendant’s Motion, only those points will be discussed below. ARGUMENT 1. Plaintiff should be permitted to introduce evidence and testimony regarding prior complaints, lawsuits, settlements, internal investigations, or other allegations of uses of excessive force by Fort Collins Police Department officers. 1 Defendant seeks to exclude evidence that Fort Collins police officers have previously used excessive force in response to resistance to arrest, claiming the raised instances are not factually similar enough to the case at hand and are therefore irrelevant. Defendant’s argument is premised on a faulty assumption that these prior uses of force will be introduced to demonstrate a theory of Monell liability based on an informal custom or policy, as evidenced by the caselaw cited by Defendant. However, as this Court noted in its Order Denying Motion for Summary 1 Should this Court rule in favor of Plaintiff on this point, Plaintiff will file a motion to amend the Final Pretrial Order to add additional relevant exhibits and witnesses. Case No. 1:19-cv-00901-WJM-NRN Document 209 filed 11/03/23 USDC Colorado pg 1 of 5 2 Judgment, “the Court construes Surat’s claim as premised on the failure to train” [ECF No. 154 at 10]. The question of whether prior uses of force involve sufficiently similar facts, which is the central question for an informal custom or policy theory of liability, is not the central question for a failure to train theory of liability. This case, like Ortega v. City & Cnty. of Denver, is about whether law enforcement officers’ use of excessive force in accordance with their training constitutes a failure to train for which the municipality is liable. See [ECF No. 154 at 11]; see also Ortega v. City & Cnty. of Denver, 944 F. Supp. 2d 1033, 1038–39 (D. Colo. 2013). In its Order Denying the Motion for Summary Judgment, this Court stated that since one incident of excessive force can be enough to trigger municipal liability under a failure to train theory, Defendant’s point that Fort Collins’ other uses of force are not factually similar enough to trigger liability is “immaterial” to the question of whether the Monell claim survives summary judgment. [ECF No. 154 at 11-12]. However, whether other uses of excessive force are relevant is a separate question. Where the evidence supporting a failure to train claim is based on the city’s admission that a use of excessive force comports with a city’s training on use of force generally, prior instances of excessive force can corroborate the city’s general admission and are relevant for that purpose. Moore v. Miller, Civil Action No. 10-cv-00651-JLK, 2014 U.S. Dist. LEXIS 72452 (D. Colo. May 28, 2014) was another failure to train case relying on admissions by city officials about uses of excessive force comporting with training. In its order denying summary judgment to the defendants, the court found it relevant that “Mr. Moore presents the testimony of several citizens who allege to have suffered at the hands of Defendant Miller because of the City’s failure to train regarding excessive force.” Id. at *20. The court did not conduct a deep analysis on similarity of facts before considering this evidence relevant to the question of failure to train. Case No. 1:19-cv-00901-WJM-NRN Document 209 filed 11/03/23 USDC Colorado pg 2 of 5 3 Similarly, in its decision in Ortega, this Court considered whether the city of Denver’s training on police use of force could have resulted in the constitutional violation in that case. Ortega, 944 F. Supp. 2d at 1038–39. In Ortega, like here, the officers and their supervisors testified that the use of force conformed with the municipality’s training on use of force generally. See id. at 1039. This Court also found testimony relevant that indicated that “Denver's police officers had used ‘heavy-handed tactics’ since 1993 and that these tactics were a result of the City’s training policy.” Id. Thus, testimony regarding prior uses of force was relevant to corroborate the City’s admissions regarding its training program, without a close consideration of the similarity of facts. In order to focus the jury on the issues of this case, however, Plaintiff intends to only introduce evidence of Fort Collins’ prior excessive uses of force in the specific context of resistance to arrest, as explained in the Final Pretrial Order. See [ECF No. 177 at 8-10]. Plaintiff will focus on the facts of those cases to corroborate Plaintiff’s claim that Fort Collins training on use of force in response to resistance is constitutionally deficient, which is a purpose other than proving liability in cases with settlements and is therefore compliant with Fed. R. Evid. 408. See Orth v. Emerson Elec. Co., White-Rodgers Div., 980 F.2d 632, 639 (1992). Evidence of these prior instances is not unfairly prejudicial to Defendant, and Defendant has not shown how it would be – the cases cited by Defendant in support of this proposition are inapposite. See Martinez v. Gabriel, 2013 WL 798236 at *2 (D. Colo. 2013) (finding that evidence of prior investigations of the involved officers for violations unrelated to excessive force were improper character evidence under Fed. R. Evid. 404(b)); Tanberg v. Sholtis, 401 F.3d 1151, 1168 (10th Cir. 2005) (affirming the exclusion of evidence of the particular officer’s prior uses of force to show his “intent,” which was not relevant under the standard of objective Case No. 1:19-cv-00901-WJM-NRN Document 209 filed 11/03/23 USDC Colorado pg 3 of 5 4 reasonableness). Fort Collins’ officers’ prior uses of force in response to resistance to arrest are relevant and important to corroborate the admissions by Fort Collins city officials regarding Officer Klamser’s compliance with the city’s training on use of force. In a single-issue trial focused solely on a Monell failure to train claim, these prior uses of force should be permitted as probative, relevant information for the jury. 2. Plaintiff should be permitted to describe her concussion as a “traumatic brain injury.” Concussions are commonly known as a mild traumatic brain injury 2, and courts have long held that expert testimony is not required to explain matters of common knowledge which a jury can competently understand. See Salem v. United States Lines Co., 370 U.S. 31, 36 (1962). Concussions are extremely common in the US, with an estimated 1.6-3.8 million recreation or sports-related concussions occurring each year.3 In the last 30 years, news coverage has increased significantly regarding concussions in sports, particularly professional football.4 The terms “concussion” and “mild traumatic brain injury” are frequently used interchangeably – for example, in 1994 the NFL created a Mild Traumatic Brain Injury Committee with the stated goal of studying the effects of concussions and sub-concussive injury in NFL players.5 Even the plain language of the term “traumatic brain injury” is plainly descriptive of what a concussion is commonly understood to be. Plaintiff will not seek to mislead the jury with regard to Plaintiff’s 2 “Concussion: Overview.” Mayo Clinic, Feb. 17, 2022, https://www.mayoclinic.org/diseases- conditions/concussion/symptoms-causes/syc-20355594. 3 “What is a Concussion?” Brain Injury Research Institute, https://www.protectthebrain.org/Brain-Injury-Research/What-is-a-Concussion- .aspx#:~:text=Signs%20and%20symptoms%20of%20concussion,the%20United%20States%20e ach%20year. 4 Laura Ezell, “Timeline: The NFL’s Concussive Crisis,” PBS Frontline, Oct. 8, 2013, https://www.pbs.org/wgbh/pages/frontline/sports/league-of-denial/timeline-the-nfls-concussion- crisis/. 5 Id. Case No. 1:19-cv-00901-WJM-NRN Document 209 filed 11/03/23 USDC Colorado pg 4 of 5 5 injuries, which will clearly be understood to be a concussion, and so Plaintiff should not be precluded from using a common synonymous term for concussion. CONCLUSION For the foregoing reasons, Plaintiff requests this Court to deny Points A and C of Defendant’s Motion in Limine. DATED this 3rd day of November 2023. KILLMER LANE, LLP s/ Madison S. Lips ___________________________ David A. Lane Madison Lips KILLMER LANE, LLP 1543 Champa Street, Suite 400 Denver, CO 80202 (303) 571-1000 dlane@killmerlane.com mlips@killmerlane.com Counsel for Plaintiff CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing will be filed via CM/ECF which will serve the following via e-mail: Mark Ratner Brenden Desmond Hall & Evans, LLC 1001 Seventeenth Street, Ste 300 Denver, CO 80202 303-628-3492 ratnerm@hallevans.com desmondb@hallevans.com s/ Jamie Akard Jamie Akard Case No. 1:19-cv-00901-WJM-NRN Document 209 filed 11/03/23 USDC Colorado pg 5 of 5