HomeMy WebLinkAbout2019-cv-901 - Surat V. City Of Fort Collins, Et Al. - 210 - City Resp To Pl's Mot In Limine 1
IN 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 CITY OF FORT COLLINS’ RESPONSE TO
PLAINTIFF’S MOTION IN LIMINE [ECF 206]
NOW COMES Defendant, City of Fort Collins (“City”), by and through its attorneys, Hall
& Evans, LLC, and submits its response to Plaintiff Michaella Lynn Surat’s (“Plaintiff”) Motion
in Limine [ECF 206] and in support respectfully states as follows:
INTRODUCTION
A four-day jury trial is set to begin on May 13, 2024. Plaintiff filed a Motion in Limine
seeking to exclude the introduction of any evidence of the following: (1) Plaintiff’s failed defense
of self-defense raised during her criminal trial; (2) Plaintiff’s performance on probation; and (3)
Officer Klamser’s prior awards and promotions. The evidence Plaintiff seeks to exclude, however,
is relevant and material to the remaining issues in contention. Fed. R. Evid. 401. Moreover,
applying the balancing test in Fed. R. Evid. 403, the probative value of this evidence outweighs
any alleged prejudice to Plaintiff. Therefore, Plaintiff’s Motion in Limine should be denied, and
the City should be permitted to introduce this evidence at trial.
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ARGUMENT
I. Plaintiff’s Request to Exclude Her Failed Self-Defense Argument Disregards a
Previous Order of This Court.
The Court should deny Plaintiff’s request to preclude evidence of the jury’s rejection of
her defense of self-defense raised during her criminal trial. This is relevant information that frames
Officer Klamser’s interaction with Plaintiff on April 6, 2017. This Court recognized the import of
Plaintiff’s failed self-defense argument in ruling on Defendants’ 2019 Motion to Dismiss, noting
“Heck nonetheless imposes a formidable burden on Surat, even before taking the jury’s rejection
of her self-defense argument into account.” [ECF 84 at 14]. After describing the standard for an
excessive force claim, the Court found:
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)].
Plaintiff attempts to distinguish Officer Klamser’s force provoking Plaintiff’s resistance
from Officer Klamser’s use of force ending Plaintiff’s resistance. With the Court already ruling
on the first force category, Plaintiff correctly notes only the latter category is in contention.
Plaintiff then argues her failed self-defense argument is irrelevant to the legality of Officer
Klamser’s takedown (the later force category). This is incorrect. Officer Klamser properly used
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force to effectuate Plaintiff’s arrest only after Plaintiff improperly and illegally resisted arrest and,
accordingly, her defense of self-defense in her criminal trial was rejected. It was Plaintiff’s
resistance to arrest that caused Officer Klamser to effectuate a rowing arm takedown. Contrary to
Plaintiff’s assertions, there is no clear bright line separating these two force categories; they are
inextricably interwoven. Plaintiff’s resistance to arrest in the first instance caused Officer
Klamser’s force in the second instance. It is impossible to extricate Plaintiff’s failed self-defense
argument from this event and doing so would be misleading to the jury.
With Plaintiff’s failed self-defense argument, the Court recognized she must prove an
additional element to establish a violation of the Fourth Amendment—that Officer Klamser’s
takedown was objectively unreasonable while taking as a given the following: (1) he was
attempting to effectuate an arrest; (2) in the process, Plaintiff’s actions subjected him to or
threatened him with physical force or violence or placed him in substantial risk of bodily injury;
and (3) he first attempted to subdue Plaintiff through lawful lesser force. [ECF 84 at pp.14-15].
This is the framework the jury must apply in determining whether there was a constitutional
violation caused by the City’s failure to train its officers.1 Therefore, this evidence is relevant and
material as recognized by this Court in a previous Order, and Plaintiff’s request to exclude this
1 Plaintiff’s Monell liability theory against the City appears to be a moving target. In Plaintiff’s
Amended Complaint, Plaintiff alleged the City failed to train and supervise its officers. [ECF 107,
¶¶ 92-99]. In Plaintiff’s Response to Defendants’ Motion for Summary Judgment, Plaintiff focused
on her failure to train theory but sprinkled in a few other Monell liability theory buzzwords without
thoroughly briefing most of them. [ECF 128, pp. 39-43]. For example, Plaintiff discusses the
adequacy of the City’s policies, the City’s alleged failure to supervise Officer Klamser, alleged
“binding admissions” by officers approving Officer Klamser’s takedown, and an alleged failure to
discipline officers for their actions. [Id.]. In Plaintiff’s Motion in Limine, Plaintiff appears to posit
a failure to train theory and inadequate policy theory. [ECF 206, pp. 2-4]. The City requests
Plaintiff clarify the nature of her liability theory(ies) against it, so it can prepare for trial.
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evidence must be denied. Plaintiff’s performance on probation is relevant and admissible pursuant
to Fed. R. of Evid. 401 and 402, and her request to exclude relevant evidence must be denied.
Evidence is relevant if “it has any tendency to make a fact more or less probable than it would be
without the evidence.” Fed. R. Evid. 401.
Here, Plaintiff’s performance on probation is relevant to her alleged damages. During
Plaintiff’s deposition, she testified that this incident made her life “exponentially way more
difficult.” [Plaintiff’s Dep., at 193:2-3, attached hereto as Exh. A]. Plaintiff testified that she lost
jobs and friends because of this incident, she struggled in school, and she had a difficult time
applying for internships while her criminal case was pending. [Plaintiff’s Dep., at 192:2-193:21,
Exh. A]. Plaintiff also testified she believed she was “innocent,” and her criminal conviction was
unfair. [Plaintiff’s Dep., at 46:5-47:4. Exh. A]. Plaintiff testified she is still processing her
conviction, which she described as a “work in progress” for which she has sought therapy. [Id.].
Following Plaintiff’s conviction, she was sentenced to twelve months of supervised probation.
[Plaintiff’s Dep., at 120:9-13, Exh. A]. Plaintiff’s probation was extended by three months because
she obtained a medical marijuana license, and her probation officer requested clean urinalysis
screens. [Plaintiff Dep., at 120:17-24, Exh. A].
Based on Plaintiff’s deposition testimony, her conviction and sentence are a component of
her emotional distress damages. [Exh. A]. Plaintiff must prove damages as an element of her case,
and the City is permitted to ask Plaintiff about her alleged damages. Questioning Plaintiff about
the conditions, length, and her performance on probation is relevant to the jury’s evaluation of her
damages. Plaintiff blames the City for the fact she was on probation, yet she unquestionably is
responsible for the extension of her probation. The City must be permitted to question Plaintiff
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about her performance on probation because her actions contributed to her alleged damages.
Plaintiff’s request should be denied because this evidence is relevant, and the exclusion of this
evidence obstructs the City’s ability to challenge certain categories of Plaintiff’s alleged damages.
II. Plaintiff Provides No Support for Her Request to Exclude Evidence of Officer
Klamser’s Prior Awards and Promotions.
Plaintiff seeks to exclude Officer Klamser from testifying regarding his prior awards and
promotions as a police officer as irrelevant and unfairly prejudicial. It is neither. It is customary
for witnesses to testify regarding their relevant background and experience; for police officers, this
includes testimony regarding their training, experience, current and former rankings, promotions,
and a summary of positions held with all law enforcement agencies. Plaintiff provides no authority
in support of her request for the Court to disregard this customary practice, instead relying on
conclusory arguments. The City has been unable to locate any Tenth Circuit jurisprudence where
the court found an officer’s testimony regarding his/her prior qualifications, including awards and
promotions, was irrelevant and unfairly prejudicial to a plaintiff.
Officer Klamser’s law enforcement experience, including his prior awards and promotions,
is relevant to his knowledge of law enforcement techniques and his decision to use a rowing arm
takedown, all of which is relevant to the reasonableness of this maneuver under the circumstances.
Additionally, Plaintiff argues introduction of this evidence is prejudicial, but she does not explain
how or why this would prejudice her. Application of the Fed. R. Evid. 403 balancing test
demonstrates that evidence of Officer Klamser’s prior promotions and awards would not unfairly
prejudice Plaintiff, confuse any issues, mislead the jury, or cause undue delay. See Fed. R. Evid.
403. Thus, there is no reason to exclude clearly relevant evidence here.
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While the introduction of evidence of Officer Klamser’s prior promotions would not
prejudice Plaintiff, the exclusion of this evidence would prejudice the City. It is anticipated
Plaintiff’s counsel will attack Officer Klamser’s actions and credibility during this trial. The City
must be permitted to present the complete picture of Officer Klamser’s qualifications because it is
relevant to his actions and necessary for his credibility.
Respectfully submitted this 3rd day of November 2023.
s/ Katherine N. Hoffman
Mark S. Ratner, Esq.
Gina Rossi, Esq.
Robert Weiner, Esq.
Katherine N. Hoffman, 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
hoffmank@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 3rd day of November 2023, a true and correct copy of the
foregoing DEFENDANT CITY OF FORT COLLINS’ RESPONSE TO PLAINTIFF’S
MOTION IN LIMINE [ECF 206] was filed with the Court via CM/ECF and served on the below-
listed party by email:
David Lane, Esq.
dlane@killmerlane.com
Maddie Lips, Esq.
mlips@killmerlane.com
s/ Erica Cameron
Erica Cameron, Legal Assistant
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A. Uh-huh. Yes.
Q. Yes. All right. Do you plan to do any
more appeal on your criminal charges?
A. I don't know at this point in time.
Q. Okay. How do you plan on putting the
criminal charges behind you -- or strike that.
How do you plan on putting the criminal
convictions behind you?
A. That's a good question. It's a work in
progress; day by day.
Q. Okay. And what do you mean by "work in
progress"? Just something you're trying to get over?
A. Yeah. I mean, I go to therapy. It's a
work in progress. It's something that I just try to
get over, day by day. I can't give you an answer how
I'm going to move on, because I have no idea.
Q. You haven't accepted the fact that you've
been convicted; have you?
A. It's not really that I haven't accepted it.
I have accepted it. It's just not fair.
Q. Okay. Why is it not fair?
A. Because what happened to me shouldn't have
happened.
Q. You don't feel as though you should have
been charged with and convicted by a jury of two
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EXHIBIT A
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crimes?
A. Correct.
Q. So you still maintain your innocence?
A. Yes.
Q. We'll talk about that. I like to go in
order. That way there's some semblance of order for
the deposition transcript.
A. Okay.
Q. Your answers to interrogatories says you
worked -- well, strike that.
What is Color Me Mine?
A. It's a pottery painting place.
Q. Your answers to discovery say that you were
shift supervisor from May of 2017 through January of
2018 at Papa Murphy's in Fort Collins, correct?
A. Correct.
Q. And why did you leave that job?
A. School, I believe. My school schedule
didn't really work out for the next -- yeah, the next
portion of schooling. My schedule -- my school
schedule didn't work out with working there.
Q. You were employed -- strike that.
At the time of this incident, you were
employed at Papa Murphy's, correct?
A. I was not. I started at Papa Murphy's
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to your different medical care providers, and that's
what I'm interested in.
A. Okay. No, I don't believe that I -- I
never saw anybody -- any therapist or anything --
anybody that I ever saw, I found them.
Q. Okay.
A. I was not referred to them by my -- by my
attorneys.
Q. As a result of being convicted of resisting
arrest and obstruction of a police officer, you were
sentenced to 12 months of supervised probation; is
that correct?
A. That's correct.
Q. And you completed that satisfactorily; is
that correct?
A. Yes, I completed my probation.
Q. Did you have any issues during your
probation?
A. I had to have a three-month extension.
Q. Why is that?
A. I obtained a medical marijuana license.
And they just wanted to see -- after I had obtained
the license, they wanted to see clean UAs. I mean --
yeah.
Q. When was the last time you smoked
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figure that out.
Q. (BY MR. RATNER) Can you think of any other
problems that you've incurred since the incident?
A. Like, just physically?
Q. Physically or mentally.
A. I mean, mentally, it's just been really
hard, like going through the extra loophole that I had
to do for my internship.
You know, I still go places in the town of
Fort Collins, and people know who I am. And it sucks,
because they see this part of me. You know, they
don't see, like, the bubbly, outgoing, like, person
that I am, who's so helpful and will do anything for
anybody.
And it's hard. You know, like, I've lost a
lot of jobs because of this incident. I almost didn't
graduate because of this incident. I had to take an
extra year and a half of school because of this
incident.
Like, every single day since this day has
been so hard, whether it's because people are
harassing me or I find a new hiccup that's going to
prevent me from having the successful career that I
want, or, you know, oh -- you know, I want to move,
and it's difficult, because, like, I'm doing this and,
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you know, going through this.
And it's just ever since that day, my life
has been exponentially way more difficult.
Q. You said you lost jobs because of the
incident. We didn't talk about any of that. So what
jobs have you lost?
A. So I -- I had a nanny job. And I was no
longer allowed to watch the kids anymore, because the
parents felt unsafe with my -- me bringing their kids
around the town because of the death threats that I
was getting. They didn't want anything to happen to
their children. So that was a large amount of income
and a really good job that I had, that I could no
longer do.
And I applied at LaMar's Donuts. And I
didn't pass their background check at a donut shop for
two misdemeanors. Like, that prevented me from having
a job.
Like, a lot of little things here and there
has just made this entire journey even that much more
difficult.
Q. Do you have any -- well, strike that.
Do you file tax returns?
A. Yes.
Q. Okay. And do you have any records to show
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