DEBRA M. BROWN, District Judge.
This civil rights action is before the Court on the multiple motions in limine filed by the parties.
On May 18, 2016, Eric Hawkins filed a complaint against Nicholas Walsh and the City of Clarksdale, Mississippi, seeking to recover for an alleged use of excessive force against him by Walsh, a police officer with the City of Clarksdale. Doc. #1. Specifically, Hawkins alleges that he was a passenger in a car stopped by Walsh and that he exited the car during the traffic stop, began to run, and was shot by Walsh. Walsh, for his part, claims that he shot Hawkins after Hawkins exited the car with a rifle.
No party filed a dispositive motion. However, on February 23, 2018, Hawkins filed six motions in limine. Doc. #71; Doc. #73; Doc. #75; Doc. #77; Doc. #79; Doc. #81. The same day, Walsh and the City filed a joint motion in limine. Doc. #68. Hawkins filed a seventh motion in limine on March 2, 2018. Doc. #84.
"The purpose of a motion in limine is to allow the trial court to rule in advance of trial on the admissibility and relevance of certain forecasted evidence. Evidence should not be excluded in limine unless it is clearly inadmissible on all potential grounds." Harkness v. Bauhaus U.S.A., Inc., No. 3:13-cv-129, 2015 WL 631512, at *1 (N.D. Miss. Feb. 13, 2015) (quotation marks and citations omitted).
In their motion in limine, the defendants seek to exclude evidence related to Hawkins' acquittal of the crime of aggravated assault during the incident underlying Hawkins' suit. Doc. #68. Relatedly, Hawkins' seventh motion in limine seeks to exclude evidence related to criminal charges brought against him stemming from the incident.
After the filing of these motions, the defendants filed a document representing that the parties:
Doc. #106.
Based on this representation, both motions in limine will be denied as moot.
In his first motion in limine ("First Motion"), Hawkins moves to exclude as irrelevant and unduly prejudicial any evidence related to his criminal record, which includes charges of disorderly conduct, false identification, failure to pay fines, and a variety of traffic offenses. Doc. #71; Doc. #72.
As a general rule, "[e]vidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." Fed. R. Evid. 404(b). However, such "evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Id. In their response, the defendants argue that Hawkins' criminal history is admissible to show: (1) the falsity of Hawkins' claim that he ran because he was scared; (2) the falsity of Hawkins' statements regarding the severity of his damages; and (3) as impeachment evidence under Federal Rule of Evidence 609.
The defendants argue:
Doc. #96 at 2 (emphasis and internal citations omitted).
"To state a Fourth Amendment excessive force claim, [a] plaintiff[] must show that [he was] seized and that [he] suffered (1) an injury that (2) resulted directly and only from the use of force that was excessive to the need and that (3) the force was objectively unreasonable." Davila v. United States, 713 F.3d 248, 259 (5th Cir. 2013) (original alterations and quotation marks omitted). This inquiry is "fact-specific" and must "be made from the perspective of an objectively reasonable officer at the scene, rather than in hindsight." Id. Put differently, "the question is whether the officers' actions are `objectively reasonable' in light of the facts and circumstances confronting them . . . . " Graham v. Connor, 490 U.S. 386, 397 (1989).
Because the excessive force inquiry is an objective one, a plaintiff's subjective reason for fleeing from an officer is irrelevant. See Molina v. City of Visalia, No. 1:13-cv-1991, 2016 WL 8730723, at *4 (E.D. Cal. Sept. 16, 2016) ("[T]he subjective state-of-mind and any motivation for fleeing on the part of Maduena, Molina, and the other passengers of the vehicle are not at issue in this action and are not relevant to a determination of the defendants' liability because officers Collins, Roberts, and Alfano were unaware of them."). Accordingly, Hawkins' reason for running, which was indisputably unknown to Walsh, is irrelevant to the excessive force inquiry and properly excluded. See Fed. R. Evid. 402 ("Irrelevant evidence is not admissible.").
The defendants argue:
Doc. #96 at 2.
Federal Rule of Evidence 403 provides that "[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." "[O]nly unfair prejudice, substantially outweighing probative value . . . permits exclusion of relevant matter under Rule 403." United States v. Barnes, 803 F.3d 209, 221 (5th Cir. 2015) (emphasis omitted). Of relevance here, "[p]robative value may be calculated by comparing evidentiary alternatives." United States v. Perez-Solis, 709 F.3d 453, 465 (5th Cir. 2013) (quotation marks omitted).
First, to the extent the defendants remain free to inquire about Hawkins' specific activities following his injuries, the probative value of the relevant conviction (which would be offered to show Hawkins' activities) as it relates to Hawkins' claimed damages is very small.
The defendants submit that Hawkins has twice been charged for presenting false information to a law enforcement officer, has been convicted for this crime once, and that his "charge and conviction" are admissible under Federal Rule of Evidence 609. Federal Rule of Evidence 609(a) allows a party to "attack[] a witness's character for truthfulness by evidence of a criminal conviction." If the conviction is for a crime punishable "in the convicting jurisdiction . . . by death or by imprisonment for more than one year," the conviction is admissible "subject to Rule 403." Fed. R. Evid. 609(a)(1). If, however, the conviction is for a crime for which "the court can readily determine that establishing the elements of the crime required proving—or the witness's admitting—a dishonest act or false statement," the conviction is admissible without regard to Rule 403.
Under Mississippi law, the crime of false identification is making or causing "to be made any false statement or representation as to [a] person's identity . . . to a law enforcement officer in the course of the officer's duties with the intent to mislead . . . . " Miss. Code Ann. § 97-9-79. Because from these elements, the Court can readily determine that the elements of the crime involve a dishonest act or statement, the conviction is admissible under Rule 609.
Hawkins' First Motion will be denied to the extent his conviction for false identification is admissible under Federal Rule of Evidence 609. The First Motion will be granted in all other respects.
Hawkins' second motion in limine ("Second Motion") seeks to exclude "evidence of the criminal record or gang affiliation or reputation of any person in the car in which Plaintiff was a passenger." Doc. #73. Hawkins argues that such evidence is both irrelevant and unduly prejudicial. Id. at 1. The defendants respond that "evidence that Plaintiff was riding in a vehicle with gang members guns and ammunition is relevant to whether he exited the car with a gun and whether it was reasonable for Officer Walsh to fire his weapon at Plaintiff." Doc. #88 at 2.
While a known gang affiliation may, in some circumstances, be relevant as a defense to a § 1983 claim, such evidence is properly excluded as irrelevant and unduly prejudicial where there is no evidence the arresting officer knew of such affiliation. See Anderson v. City of Chicago, No. 09-cv-2311, 2010 WL 4811937, at *2 (N.D. Ill. Nov. 19, 2010) (granting motion in limine related to gang affiliation where "nowhere in Defendants' pleadings does it indicate that the Defendant Officers knew anything about these two individuals' alleged gang affiliations before they responded to the `shots fired' incident, before they arrested Plaintiffs, [or] before the allegations of excessive force"). Here, there is no evidence that Walsh knew of the criminal history or gang affiliations of any passenger in the car. In the absence of such evidence, the Second Motion will be granted.
In his third motion in limine ("Third Motion"), Hawkins seeks to exclude evidence that in the car in which he was riding, authorities "found a CD with the words `Trigger Finger' written on it, and a handgun." Doc. #76 at 1. Hawkins argues this evidence should be excluded as irrelevant and unfairly prejudicial. The defendants respond:
Doc. #90 at 1. Put differently, the defendants argue that the evidence is relevant to show that the occupants of the car were on the way to do something violent, if not illegal. This proffered purpose relates to Hawkins' fourth motion in limine ("Fourth Motion"), which seeks to exclude as irrelevant and unfairly prejudicial all evidence that occupants were on the way to a drive-by shooting. Doc. #77. In his Fourth Motion, Hawkins also argues that some of the evidence related to the alleged drive by shooting, specifically certain statements made to officers by "people" subsequent to the stop, are inadmissible hearsay. Doc. #78 at 1-2.
The defendants do not respond to the hearsay argument but contend the fact "[t]hat the occupants in the vehicle intended to shoot someone makes it more probable that Plaintiff jumped out of the vehicle with a loaded weapon pointed in Officer Walsh's direction." Doc. #92 at 2. They also argue that the evidence is relevant to rebut Hawkins' claim that he thought he was on the way to a basketball game and entered the wrong car.
Rule 801 of the Federal Rules of Evidence defines hearsay as a "statement that . . . the declarant does not make while testifying at the current trial or hearing . . . and . . . a party offers in evidence to prove the truth of the matter asserted in the statement." "Once a party has properly objected to evidence as inadmissible hearsay, the burden shifts to the proponent of the evidence to show, by a preponderance of the evidence, that the evidence falls within an exclusion or exception to the hearsay rule and was therefore admissible." Loomis v. Starkville Miss. Pub. Sch. Dist., 150 F.Supp.3d 730, 742-43 (N.D. Miss. 2015) (quotation marks omitted). Because the defendants have failed to respond to Hawkins' proper hearsay exception regarding the statements made by unspecified "people," the Fourth Motion will be granted to the extent it seeks exclusion of such statements.
The admissibility of the broader category of evidence — that the occupants of the car intended to shoot someone — is less clear. As quoted above, the defendants argue "[t]hat the occupants in the vehicle intended to shoot someone makes it more probable that Plaintiff jumped out of the vehicle with a loaded weapon pointed in Officer Walsh's direction." Doc. #92 at 2. To the extent this proffer seeks to argue that because Hawkins was a violent person, it is more likely that he acted aggressively toward Walsh, the evidence must be rejected as impermissible character evidence. See Fed R. Evid. 404(a) (prohibiting introduction of character trait to show conformity with trait). However, to the extent the defendants argue that the participation of the car's occupants in criminal activity provided Hawkins motive to resist arrest, the evidence could be admissible, with a sufficient proffer and subject to a Rule 403 balancing. See Hernandez v. Cepeda, 860 F.2d 260, 265 (7th Cir. 1988) ("[E]vidence of the charges on which Hernandez was arrested at the time of the alleged civil rights violation was admissible for the purpose of demonstrating Hernandez's motive to resist arrest.").
Hawkins' fifth motion in limine ("Fifth Motion") seeks to exclude evidence that, following the incident, Hawkins was offered an opportunity to take a polygraph but refused. The defendants "concede that the weight of authority favors excluding refusals to take polygraph tests under Rule 403" but argue that the evidence is nonetheless admissible here to "to show Plaintiff is not credible." Doc. #98 at 1-2.
While the Court appreciates the defendants' candor, case law is mixed on the admissibility of refusals to take polygraphs. Compare DeVries v. St. Paul Fire & Marine Ins. Co., 716 F.2d 939, 944-46 (1st Cir. 1983) ("[E]vidence of a person's refusal to take a polygraph test has specifically been held inadmissible.") with United States v. Resnick, 823 F.3d 888, 897 (7th Cir. 2016) (affirming district court's admission of evidence of refusal to take polygraph). The Fifth Circuit, for its part, appears never to have addressed the issue. However, it has held that admission of polygraph results and evidence of a party's offer to submit to a polygraph are both subject to a Rule 403 balancing inquiry. United States v. Posado, 57 F.3d 428, 435 (5th Cir. 1995) (polygraph results); United States v. Leyva, 564 F. App'x 76, 77 (5th Cir. 2014) (offer to take polygraph). Based on the Fifth Circuit's use of Rule 403 to address the admissibility of polygraph-related evidence, the Court concludes that the admissibility of a refusal to take a polygraph depends on a Rule 403 balancing inquiry, which measures the probative value of the refusal against the danger of unfair prejudice, confusion, misleading the jury, undue delay, wasting time, and needlessly presenting cumulative evidence.
In assessing the probative value of Hawkins' refusal to take the polygraph, the defendants seem to argue that Hawkins' refusal suggests that his proffered version of events is untrue. The Sixth Circuit, addressing the same argument, has recognized a "marginal" relevance to a refusal to take a polygraph but has noted that "[g]iven the general skepticism that pervades the scientific community concerning the reliability of polygraph examination, an individual's refusal to submit to a polygraph test may be more probative of skepticism than lack of credibility." Wolfel v. Holbrook, 823 F.2d 970, 974 (6th Cir. 1987). In the same opinion, the Sixth Circuit held that the refusal was inadmissible to prove lack of credibility because the "marginal" probative value was outweighed by the fact that "an individual's refusal to volunteer for polygraph testing is likely to create a highly prejudicial inference that the results of the test would have been unfavorable . . . . " Id. at 974-75. This Court agrees with this holding and concludes that where, as here, a party seeks to introduce a refusal to take a polygraph to call into question a party's credibility, such evidence is inadmissible under Rule 403.
Hawkins' sixth motion in limine ("Sixth Motion") seeks to exclude numerous portions of a Mississippi Bureau of Investigation Report on the underlying incident prepared by Lieutenant Peter T. Clinton. Doc. #81.
Hawkins first objects to the opinions in the report on the grounds that Clinton was never qualified as an expert witness and because his opinions relate to the ultimate issue in this case, they should be excluded under Federal Rule of Evidence 701. The defendants respond that Clinton, who initially responded to the scene of the shooting, "may offer his opinions under Rule 701." Doc. #94 at 2.
As an initial matter, Federal Rule of Evidence 704 makes clear that "[a]n opinion is not objectionable just because it embraces an ultimate issue." Accordingly, the fact that Clinton's opinions overlap with an ultimate issue in the case does not necessarily warrant exclusion.
Next, Federal Rule of Evidence 701 provides that a lay witness may offer "testimony in the form of an opinion . . . that is: (a) rationally based on the witness's perception; (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." The perception requirement of Rule 702 is based on the requirement of Rule 602 that "testimony may be elicited only if it is based on the witness's first-hand knowledge or observations." DIJO, Inc. v. Hilton Hotels Corp., 351 F.3d 679, 685 (5th Cir. 2003). Because Rule 602 "permits a witness to testify to what he heard unless what he heard is excluded under the hearsay rules," "the firsthand knowledge requirement may be based on the lay witness' perception of otherwise admissible out of court statements." United States v. Garcia, 994 F.2d 1499, 1506-07 (10th Cir. 1993) (quotation marks omitted).
Here, the recommendations and opinions included in the report are based on a mix of hearsay and first-hand observations. Under such circumstances, such opinions are properly rejected as violative of the personal-knowledge requirement.
Hawkins argues that various pages of the report should be excluded because they contain "references to `conspiracy to commit drive-by,' a prejudicial statement which has been addressed in an earlier motion in limine." Doc. #81 at 1-2. Similarly, Hawkins' objects to the Evidence Recovery Log included in the report (including relevant photographs), which details the contents of the car. Because the Court has declined to exclude at this time evidence of an intent to commit a drive-by shooting, Hawkins' objections regarding the contents of the car and the related issue of the intent of the car's occupants will be overruled.
The Sixth Motion includes numerous hearsay objections to sections of the report. Specifically, it argues: (1) "Pages 8 and 9 contain a narrative which is based entirely upon hearsay[;]" (2) "Page 12 contains hearsay statements from Jessica Washington[;]" (3) "Pages 18-21 contain a self-serving statement of Defendant Walsh which should not be admitted unless it is against Walsh's interest or being used for impeachment[;]" (4) "Pages 30-34 consist entirely of hearsay statements from Jessica Washington[;]" (5) "Pages 36-38 of the report contain hearsay statements of Aki Williams and Sammy Clark[;]" and (6) "The report also contains a second statement by Officer Walsh which is self-serving and should not be admitted unless it is being admitted against his interest or through impeachment." Doc. #82 at 2-3. With the exception to certain statements attributed to Washington and Williams, the defendants do not respond to Hawkins' hearsay objections. Rather, they offer a general response that they "cannot analyze each particular statement . . . without Plaintiff specifically identifying which ones are arguably hearsay." Doc. #94 at 2.
This Court has previously observed that hearsay objections must be "proper" and that generally "a hearsay objection [which] is conclusory and scant at best . . . is not properly made and should be summarily overruled." Loomis, 150 F.Supp.3d at 743 (quotation marks omitted). In the same opinion, this Court noted that "[t]he necessity of proper argument is particularly important where the Court questions whether the statements are being offered for the truth of the matter asserted and/or whether they fall within an exception to the hearsay rule." Id. (quotation marks omitted).
Here, Hawkins has failed to offer any legal argument for his hearsay objections. However, with the exception of the broad objection to pages 8-9 (which the Court finds improper), Hawkins' objections identify the specific portions of the report to be excluded as hearsay. Furthermore, each objected-to portion is clearly relied on for the truth of the matter asserted
The Sixth Motion seeks to exclude as irrelevant criminal information regarding Sammy Clark, Aki Williams, and Lucky Thomas. The defendants did not argue how such evidence is relevant. In the absence of such argument, the Sixth Motion will be granted to the extent it seeks exclusion of the challenged evidence.
Hawkins objects to the report's inclusion of what amounts to an unofficial transcript of an interview of him conducted by Clinton. Hawkins argues that the summary should be inadmissible because (1) Clinton did not record the interview, as he did with other interviewees; (2) Hawkins was on a pain-killer at the time; (3) Clinton testified in a deposition that Hawkins made a statement which was not reflected in the summary; and (4) the document's "appearance of purported accuracy could easily mislead a juror into believing this was a recorded interview." Doc. #82 at 5.
While less than clear, it appears Hawkins argues that the interview summary is excludable under Rule 403 because it is unreliable and, therefore, its probative value is outweighed by the danger of confusion to the jury. However, "[w]eighing probative value against unfair prejudice under Rule 403 means probative value with respect to a material fact if the evidence is believed, not the degree the court finds it believable." Ballou v. Henri Studios, Inc., 656 F.2d 1147, 1154 (5th Cir. 1981) (emphases added and alterations omitted). Accordingly, the alleged unreliability of the summary does not lessen its probative value for the purpose of conducting a Rule 403 balancing. Id. Rather, there can be no serious dispute that the summary of the interview regarding the event at issue carries a very high probative value. Additionally, while the Court shares Hawkins' concern that the summary, on its face, carries the potential to confuse the jury, the Court believes the risk of this confusion is outweighed by the evidence's probative value and, furthermore, can be remedied by counsel during cross-examination and by the Court in a jury instruction. The Sixth Motion will, therefore, be denied to the extent it seeks exclusion of the summary of Hawkins' interview.
Finally, the Sixth Motion seeks exclusion of a reference to the allegation that Hawkins refused to take a polygraph. For the reasons above, the Sixth Motion will be granted in this regard.
Based on the above:
Doc. #94 at 2. The defendants further contend that "[t]he same argument would be true of Aki Williams, who was not at the accident scene. Colonel Clinton interviewed these witnesses to determine who the occupants of the vehicle were and what their motive could possibility be considering the loaded weapons and ammo in the car." Id. at n.1. To the extent the proposed inferences drawn from the challenged statements rely on the truth of the matters asserted, such arguments are clearly meritless.
