JAMES O. BROWNING, District Judge.
The Court has explained the facts of this case in its prior Memorandum Opinion and Order, filed October 7, 2012, 286 F.R.D. 602, 2012 WL 5353493 (D.N.M.2012) (Doc. 83), and incorporates by reference those facts here. The Court will add here additional pertinent facts for this motion. After Shelden and Lovato arrested M. Montoya and Plaintiff David Montoya, the Montoyas observed signs in the back of Shelden's police car, that Shelden has since taken out, at least one of which misrepresented, and/or joked about, a suspect's Fifth Amendment Rights. At Shelden's deposition, he stated that one of the signs read: "If you don't like the police, then call a crackhead the next time you need help." See Deposition of Gerald Shelden 94:12-14 (taken March 1, 2011), filed September 17, 2012 (Doc. 67-1) ("Shelden Deposition"). He admitted to having "[t]he Miranda one ... in there," at the time that he arrested the Montoyas. Shelden Deposition 94:19-20.
Unrelated to the incident in this case, Shelden and Lovato are defendants in other § 1983 civil rights cases. At least one of those cases ended in a judgment against Lovato for excessive force, awarding the plaintiff both compensatory and punitive damages. See Canizales v. Armendariz, No. CIV 07-0198 JB/RHS, Final Judgment, filed August 11, 2008 (Doc. 117).
Lovato is also a defendant in a criminal case, charged with leaving the scene of an accident. That criminal charge arose from an accident involving Anna Chavez, while Lovato was off-duty in his police vehicle. At the accident, he represented to Chavez that he was on-duty and provided other false statements to her, including providing her with a fake report number and false Computer Aided Dispatch ("CAD") number.
On April 15, 2010, the Montoyas filed their Complaint asserting claims for violations of the Fourth Amendment to the
On August 12, 2011, the Montoyas filed a motion seeking to re-open discovery for the limited purpose of allowing them to submit discovery requests to Lovato about a criminal charge he faces regarding leaving the scene of an accident. See Memorandum Opinion and Order at 2, filed March 20, 2012 (Doc. 39) ("MOO"). The Court granted the motion in part and denied the motion in part. See MOO at 1. The Court did not permit the Montoyas to serve any requests for admission or requests for discovery to inquire into Lovato's conduct in relation to the alleged incident where he left the scene of an accident. See MOO at 1. The Court also did not permit the Montoyas to conduct their requested deposition of Lovato, because discovery is closed, the information the requested appears collateral to the case here, and the requested discovery is related only to the issue of Lovato's credibility. See MOO at 1-2. The Court conducted an in camera review of the internal-affairs-investigation file into Lovato's conduct to determine whether the Defendants should disclose any of the documents underlying that investigation to the Montoyas. See MOO at 2.
On September 4, 2012, the Defendants filed the Defendants' Motion in Limine to Exclude Introduction of Evidence from Other Cases or Claims Brought Against Defendants and any Evidence of Allegations of Prior and Subsequent Bad Acts and Memorandum in Support Thereof. See Doc. 56 ("Motion in Limine"). They move to exclude from evidence other claims or cases against the Defendants pursuant to rules 104, 401, 403, and 404 of the Federal Rules of Evidence. Motion in Limine at 1. The Defendants state that, although they are unsure what specific information the Montoyas wish to introduce, they assume that, because Shelden and Lovato are defendants in other ongoing cases, the Defendants "seek to ensure to Plaintiffs' counsel does not attempt to introduce any such evidence." Motion in Limine at 1-2. In addition to seeking to exclude Shelden and Lovato's other unrelated cases, the Defendants seek to exclude other improper character evidence, including: (i) reference to "`New Miranda Rights'
The Defendants contend that the other lawsuits, investigations, and the signage in Shelden's vehicle are not relevant under rule 401, because the evidence is not probative of any of the Montoyas' claims, as none of these prior or subsequent "bad acts" are alleged to have involved the Montoyas. See Motion in Limine at 3. Because the 42 U.S.C. § 1983 claims that the Montoyas are bringing do not include a municipal liability claim, the Defendants assert that the prior bad acts are also not probative of the Montoyas claims against the City of Albuquerque or APD.
The Defendants argue that the Court should also exclude the evidence under rule 404, because "the only thing the internal affairs investigations and unrelated claims/cases tend to ... show [is] that Defendants have bad character and they acted in conformity with that character." Motion in Limine at 7. The Montoyas, they contend, are thus offering the evidence of prior and subsequent bad acts for an improper purpose. See Motion in Limine at 7. The Defendants assert that, even if the evidence is relevant to the Montoyas' claims, and is being offered for a proper purpose, the Defendants assert that "the Court should still exclude the evidence under Federal Rule of Evidence 403," because of the danger of unfair prejudice to the Defendants, and because the evidence will confuse the issues and mislead the jury. Motion in Limine at 8. The Defendants argue that evidence of Shelden and Lovato's other trials would confuse the issues and mislead the jury, because admitting evidence of other cases against Shelden and Lovato that have not been resolved would "result in a series of mini-trials." Motion in Limine at 8-9 (citing Kinan v. City of Brockton, 876 F.2d 1029, 1034 (1st Cir.1989)).
On September 17, 2012, the Montoyas filed the Plaintiffs' Response to Defendants' Motion in Limine to Exclude Introduction of any Evidence from Other Cases or Claims Brought Against Defendants and any Evidence of Allegations of Prior and Subsequent Bad Acts and Memorandum in Support Thereof [Doc. 56]. See Doc. 67 ("MIL Response"). The Montoyas first supplement the Defendants' listed cases against Shelden and Lovato, alleging additional facts about the settled, unresolved, and resolved cases against Shelden and Montoya. See MIL Response at 2. The Montoyas argue that the evidence which the Defendants seek to exclude is relevant to Shelden's and Lovato's bias and credibility. See MIL Response at 2. The Montoyas contend that the unrelated cases against Shelden and Montoya are, "in essence, credibility determinations by the jury that the Defendants were not credible in the denial of liability at trial." MIL Response at 3. The evidence is also relevant, they assert, for purposes of impeachment on cross examination. See MIL Response at 3. The Montoyas argue
The Montoyas assert that the Court should deny the Defendants' motion to exclude "`Improper Character Evidence Brought Against Any of the Defendants, Including Any Reference to `New Miranda Rights' and Other Signage,'" MIL Response at 4 (quoting Motion in Limine at 1), because the "reference to `improper character' is vague and Plaintiffs are unable to ascertain what the Defendants specifically seek to exclude." MIL Response at 4. In regards to the improper signage in Shelden's vehicle, the Montoyas argue:
MIL Response at 5. The Montoyas "agree that ... evidence [of the internal affairs files of the Defendants, aside from the internal-affairs investigation related to Chavez] is inadmissable, unless the Defendants open the door." MIL Response at 6. With regard to "the internal affairs and citizen complaint against Defendant Lovato regarding Anna Chavez and the criminal case filed ... charging him with leaving the scene of the accident," the Montoyas contend that the Court should not exclude this evidence, because the evidence is relevant to Lovato's credibility and bias. MIL Response at 6. The Montoyas assert that the Court must give the evidence "its maximum reasonable probative force and its minimum reasonable prejudicial value," when performing the rule 403 balancing test. See MIL Response at 6 (quoting Deters v. Equifax Credit Info. Servs., Inc., 202 F.3d 1262, 1274 (10th Cir.2000)). They contend therefore that the Court should not at this time exclude evidence of Shelden's and Lovato's unrelated civil rights complaints, the signage in Shelden's vehicle, or Lovato's criminal case and internal affairs investigation. See MIL Response at 6-7.
The Court held a hearing on September 19, 2012. The Court stated that it did not see how the evidence of the unrelated cases and internal affairs complaints that the Defendants seek to exclude is relevant to the Montoyas' claims. See Transcript of Hearing at 32:6-15 (September 19, 2012) (Court) ("Tr.").
The Montoyas contended that the other case against Shelden is relevant, as it shows Shelden's "modus operandi;" Shelden was going to let the suspect sign the tickets and leave, but before doing so, Shelden called the suspect to the back of his car and arrested him, just as he did with M. Montoya in this case. See Tr. at 34:12-24 (Oliveros). The Court stated that, while it would permit the Montoyas to ask Shelden on cross-examination whether he has a bias against people who do not follow his orders, the Montoyas would have to accept Shelden's answer, because it would not allow the Montoyas to prove the bias extrinsically by going into the facts of another case. See Tr. at 34:24-35:10 (Court).
In response to the Court's inquiry as to how the Montoyas would use the circumstances surrounding Lovato's car accident with Chavez, the Montoyas stated that they want to bring out the fact that Lovato lied in his interactions with Chavez at the scene and lied during the police investigation. See Tr. at 36: 1-11 (Court, Oliveros). The Montoyas conceded that they could provide evidence of Lovato's lies to Chavez and to the police performing the internal affairs investigation without getting into the facts of the accident. See Tr. at 36:12-18 (Court, Oliveros). The Montoyas asserted that it was important to bring out that he provided "false information" to a citizen and in the course of an internal affairs investigation. See Tr. at 37:3-4 (Oliveros). Moreover, they contended, if Lovato is not forthcoming by admitting that he lied on the scene of an accident and to the police in the course of an internal investigation, then they would need to impeach him with the two witnesses. See Tr. at 36:17-37:20 (Oliveros). The Defendants argued that they believe the fact that Lovato provided false information is not admissible under rule 608, and, to the extent that the evidence that he was untruthful may be admissible, the Montoyas cannot prove up the untruths by extrinsic evidence. See Tr. at 37:11-19 (Griffin). The Court stated that credibility, especially of a defendant police officer who lied to an investigative board, is "so important" in a case such as this one, that the Court is inclined to allow the Montoyas to ask Lovato if he lied. See Tr. at 39:8-12 (Oliveros, Court). The Court also stated that, if Lovato does not answer the questions truthfully on the stand, the lies may be proved extrinsically by the officer who performed the investigation. See Tr. at 37:21-39:7 (Court, Oliveros, Griffin).
The Montoyas contended that M. Montoya will testify to seeing the signage in Shelden's car, or new Miranda rights, and that the evidence is relevant to show Shelden's bias, to prove the claim for punitive damages, to establish that Shelden acted with malice, and to provide evidence of M. Montoya's emotional distress damages. See Tr. at 40:4-41:19 (Oliveros, Court). The Defendants asserted that the signage is not relevant to the claims for violation of the Fourth Amendment, and, because it was not directed at M. Montoya, but was rather there to provide comic relief for anyone in the back of the police car, the signage is not relevant to this case. See Tr. at 41:20-42:13 (Griffin). The Court stated that it would allow evidence of the signage or new Miranda rights in the back of Seldon's car, because, while it may be
Rule 403 provides: "The 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." Fed.R.Evid. 403. Under rule 403, the trial court must weigh the proffered evidence's probative value against its potential for unfair prejudice. See United States v. Record, 873 F.2d 1363, 1375 (10th Cir.1989). "[I]t is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matter [under rule 403]." United States v. Pettigrew, 468 F.3d 626, 638 (10th Cir.2006) (quoting United States v. Sides, 944 F.2d 1554, 1563 (10th Cir.1991)) (emphasis in original). "In performing the 403 balancing, the court should give the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value." Deters v. Equifax Credit Info. Servs., Inc., 202 F.3d 1262, 1274 (10th Cir.2000). The "exclusion of evidence under Rule 403 that is otherwise admissible under the other rules is an extraordinary remedy and should be used sparingly." United States v. Smalls, 605 F.3d 765, 787 (10th Cir. 2010).
The decision to admit or exclude evidence pursuant to rule 403 is within the trial court's discretion, see United States v. Lugo, 170 F.3d 996, 1005 (10th Cir.1999), and the trial court's discretion to balance possible unfair prejudice against probative value is broad, see United States v. Bice-Bey, 701 F.2d 1086, 1089 (4th Cir.1983); United States v. Masters, 622 F.2d 83, 87-88 (4th Cir.1980). As the Supreme Court recently noted:
Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384, 128 S.Ct. 1140, 170 L.Ed.2d 1 (2008) (quoting 1 S. Childress & M. Davis, Federal Standards of Review § 4.02, at 4-16 (3d ed. 1999)).
Evidence is unfairly prejudicial if it makes a conviction more likely because it provokes an emotional response from the jury, or if the evidence otherwise tends to adversely affect the jury's attitude toward the defendant wholly apart from its judgment as to his guilt or innocence of the crime charged. See United States v. Rodriguez, 192 F.3d 946, 951 (10th Cir.1999). "Evidence is not unfairly prejudicial merely because it is damaging to an opponent's case." United States v. Caraway, 534 F.3d 1290, 1301 (10th Cir.2008) (quoting United States v. Curtis, 344 F.3d 1057, 1067 (10th Cir.2003)). Rather, "[t]o be unfairly prejudicial, the evidence must have `an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.'" United States v. Caraway, 534 F.3d at 1301 (quoting Fed.R.Evid. 403 advisory committee note) (emphasis in original).
In Kampa v. City of Albuquerque, No. CIV 96-1572 LFG/DJS (D.N.M.), the Honorable Lorenzo Garcia, United States Magistrate Judge, explained the problem
Kampa v. City of Albuquerque, No. CIV 96-1572 LFG/DJS, Memorandum Opinion and Order at 4 (D.N.M., filed March 9, 1998) (Doc. 138).
Rule 404(a) provides that "[e]vidence of a person's character or trait of character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion." Fed.R.Evid. 404(a). "This rule is necessary because of the high degree of prejudice that inheres in character evidence. In most instances, [the United States Court of Appeals for the Tenth Circuit is] unwilling to permit a jury to infer that an individual performed the alleged acts based on a particular character trait." Perrin v. Anderson, 784 F.2d 1040, 1044 (10th Cir.1986) (citing rule 404 advisory notes).
Rule 404(b) states that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." Fed.R.Evid. 404(b). The same evidence, however, may be admissible for other purposes. Permissible purposes include proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. See Fed. R.Evid. 404(b). The Supreme Court has enunciated a four-part process to determine whether evidence is admissible under rule 404(b). See Huddleston v. United States, 485 U.S. 681, 691-92, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988). The Tenth Circuit has consistently applied that test:
United States v. Zamora, 222 F.3d 756, 762 (10th Cir.2000) (citing United States v. Roberts, 185 F.3d 1125 (10th Cir.1999)). See United States v. Higgins, 282 F.3d 1261, 1274 (10th Cir.2002); United States v. Hardwell, 80 F.3d 1471, 1488 (10th Cir. 1996).
Rule 404(b)'s prohibition finds its source in the common-law protection of the criminal defendant from risking conviction on the basis of evidence of the defendant's character. See United States v. Dudek, 560 F.2d 1288, 1295-96 (6th Cir.1977); 22 C. Wright & K. Graham, Federal Practice and Procedure: Evidence § 5239, at 428,436-37 & 439 (1991). In United States v. Phillips, 599 F.2d 134 (6th Cir.1979), the United States Court of Appeals for the Sixth Circuit noted, in addressing rule 404(b)'s precepts, that the rule addresses two main policy concerns:
United States v. Phillips, 599 F.2d at 136.
The Tenth Circuit has stated that district courts must "identify specifically the permissible purpose for which such evidence is offered and the inferences to be drawn therefrom." United States v. Youts, 229 F.3d 1312, 1317 (10th Cir.2000) (citing United States v. Kendall, 766 F.2d 1426, 1436 (10th Cir.1985)). "[A] broad statement merely invoking or restating Rule 404(b) will not suffice." United States v. Youts, 229 F.3d at 1317. "Uncharged, unrelated crimes or bad acts may be probative to show knowledge, ... whether the acts involved previous conduct or conduct subsequent to the charged offense if the uncharged acts are similar to the charged crime and sufficiently close in time." United States v. Valencia-Montoya, No. CR 11-2990, slip op. at 11 (D.N.M. Sep. 17, 2012) (Browning, J.) (citing United States v. Olivo, 80 F.3d 1466, 1468-69 (10th Cir.1996)). See Lewis v. District of Columbia, 793 F.2d 361, 363 (D.C.Cir. 1986) (per curium) (holding that the admission of evidence of prior arrests is proper for purposes of determining whether the plaintiff running from the police officers was result of a mistake, or to avoid arrest).
The federal courts have developed an extensive body of law regarding the use of excessive force. Concomitantly, the federal courts have discussed at length the evidence that can come in such cases. For the most part, the federal courts have been restrictive in what evidence plaintiffs can offer against police officers.
In Graham v. Connor, the Supreme Court held that all claims under 42 U.S.C. § 1983 in which a law enforcement officer has allegedly used excessive force in the course of an arrest are analyzed under the Fourth Amendment's "objective reasonableness" standard. 490 U.S. at 388, 109 S.Ct. 1865. To determine the reasonableness of an officer's use of force, the Supreme Court in Graham v. Connor stated that the proper application of the "objective reasonableness test" to a use-of-force case
490 U.S. at 396-97, 109 S.Ct. 1865 (citations omitted).
The Tenth Circuit has found that evidence of prior use of force fails to satisfy the four-factor test required to introduce 404(b) evidence. See Chavez v. City of Albuquerque, 402 F.3d 1039, 1046 (10th Cir.2005) (holding that the plaintiff failed to satisfy the first factor — that evidence of prior use of force was introduced for a proper purpose); Tanberg v. Sholtis, 401 F.3d 1151, 1167-68 (10th Cir.2005) (McConnell, J.) (holding that plaintiffs
402 F.3d at 1046 (citations omitted). The Tenth Circuit also noted that the district court's conclusion "that such evidence was not relevant under the objective reasonableness standard of Graham v. Connor... is consistent with the decisions of several other federal appellate courts which have considered similar requests." 402 F.3d at 1047 n. 4.
In Tanberg v. Sholtis, the plaintiffs sought to admit evidence that the defendant officer used excessive force or illegally seized suspects in three unrelated cases. See 401 F.3d at 1167. The plaintiffs contended that the officer's other acts of misconduct were "relevant under Fed.R.Evid. 404(b) to show intent and absence of mistake as well as `consciousness and state of mind.'" 401 F.2d at 1164. The Tenth Circuit stated: "Because Plaintiffs' federal claim for excessive force requires assessment of [the officer's] conduct under an objective standard, Plaintiffs have failed to establish the relevance of evidence tending to shed light on aspects of [the officer's] mental state to this claim." 401 F.3d at 1167-68 (citing Graham v. Connor, 490 U.S. at 397, 109 S.Ct. 1865).
The Court has on multiple occasions applied the Graham v. Connor "objective reasonableness" standard and excluded evidence regarding a police officer's use of force in unrelated incidents. See Mata v. City of Farmington, 798 F.Supp.2d 1215, 1235-36 (D.N.M.2011) (Browning, J.) (finding that "specific instances of officers' past use of force, internal-affairs complaints, and civil rights lawsuits" of unrelated incidents were not relevant); Chamberlin v. City of Albuquerque, No. CIV 02-0603, 2005 WL 2313527, at *1-2 (D.N.M. July 31, 2005) (Browning, J.). See also Jonas v. Bd. of Comm'rs of Luna Cnty., 699 F.Supp.2d 1284, 1303-1304 (D.N.M.2010) (Browning, J.) (granting motion to exclude defendant officers' unrelated prior and subsequent incidents of alleged excessive use of force).
In Chamberlin v. City of Albuquerque, the Court did not admit evidence of the officer's use of force in prior and subsequent unrelated incidents, and civil-lawsuit settlements. See 2005 WL 2313527, at *2.
Rule 608 of the Federal Rules of Evidence provides certain mechanisms for attacking witnesses' character for truthfulness or untruthfulness. See Montoya v. Sheldon, No. 10-0360, 2012 WL 1132505, at *5 (D.N.M. Mar. 20, 2012) (Browning, J.); United States v. Huerta-Rodriguez, 83 Fed.R.Evid. Serv. 681, 2010 WL 3834061, at *7 (D.N.M.2010) (Browning, J.). Rule 608(a) states:
Fed.R.Evid. 608(a). The truthfulness or untruthfulness of a witness may be attacked by opinion or reputation evidence without ever proffering evidence of a good character for truthfulness. See United States v. Holt, 486 F.3d 997, 1002 (7th Cir.2007) (noting that, while it is within the trial court's discretion to prohibit cross-examination of a police officer as to whether he had been suspended to call into question his credibility, the plaintiff "could have used Rule 608(a) and called a member of the department to testify directly about his opinions or reputation of [the credibility of the officer]."). To establish a proper foundation for the opinion or reputation testimony, a witness must show: "such acquaintance with the person under attack, the community in which he has lived and the circles in which he has moved, as to speak with authority of the terms in which generally he is regarded." United States v. Ruiz-Castro, 92 F.3d 1519, 1529 (10th Cir.1996) overruled on other grounds by United States v. Flowers, 464 F.3d 1127 (10th Cir.2006) (quoting United States v. Bedonie, 913 F.2d 782, 802 (10th Cir.1990)).
Rule 608(b) provides the rule for admission of specific instances of conduct:
Fed.R.Evid. 608(b). "Under Federal Rule of Evidence 608(b), specific unrelated instances of a witness's prior misconduct may be used to impeach the witness at the discretion of the court, however, only to the extent the misconduct reflects on the witness's character for truthfulness."
United States v. Lafayette, 983 F.2d 1102, 1106 (D.C.Cir.1993).
Rule 608 was amended in 2003 "to clarify that the absolute prohibition on extrinsic evidence applies only when the sole reason for proffering that evidence is to attack or support the witness' character for truthfulness," and not "to bar extrinsic evidence for bias, competency and contradiction impeachment." Fed.R.Evid. 608 advisory committee's note to 2003 amendment. The rule precluding the "admission of extrinsic evidence of specific instances of conduct of the witness when offered for the purpose of attacking credibility ... does not apply, however, when extrinsic evidence is used to show that a statement made by a defendant on direct examination is false, even if the statement is about a collateral issue." United States v. Fleming, 19 F.3d 1325 (10th Cir.1994) (citing 27 C. Wright & V. Gold, Federal Practice and Procedure § 5096 at 546-47 (1990)). This doctrine, "known as' specific contradiction,'" allows such impeachment "even if the evidence elicited ... ordinarily might be collateral or otherwise inadmissible." United States v. Crockett, 435 F.3d at 1313 (citing Mason v. Oklahoma Turnpike Auth., 115 F.3d 1442, 1456 (10th Cir. 1997)). See United States v. Cerno, 529 F.3d 926, 944 (10th Cir.2008) ("If there is evidence that specifically contradicts a witness's testimony, impeachment evidence is admissible to demonstrate that the witness lacks credibility and has a propensity for lying.").
It is generally true that "a party may inquire into specific instances of conduct by extrinsic evidence only on cross-examination of a witness in challenging the truthfulness of his testimony." See Bennett v. Longacre, 774 F.2d 1024, 1027 (10th Cir.1985). Where a party has already attacked a witness' credibility by cross-examination on specific instances of conduct and the witness made a false statement on the stand, however, the party may provide extrinsic evidence to impeach that witness on re-direct, or during a later direct examination. See United States v. Embry, 452 Fed.Appx. 826, 835 (10th Cir.2011) (unpublished) (noting that "Rule 608(b)(1) ... allows impeachment testimony ... on direct or redirect examination ... where a party already has attacked the credibility of a witness by referring to specific instances of conduct."). When a witness makes a false statement while providing
It is "permissible impeachment to expose a witness's bias." United States v. Baldridge, 559 F.3d 1126, 1135 (10th Cir. 2009) (citing United States v. Abel, 469 U.S. 45, 51, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984)). "Proof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness' testimony." United States v. Abel, 469 U.S. at 52, 105 S.Ct. 465 (1984). Thus, because bias is never collateral, "it is permissible to [prove bias] by extrinsic evidence." Montoya v. City of Albuquerque, No. CIV 03-0261, 2004 WL 3426435, at *4 (D.N.M. May 18, 2004) (Browning, J.). The Tenth Circuit describes bias, based on its definition at common law, as "the relationship between a witness and a party which might cause the witness to slant his testimony for or against the party." United States v. Baldridge, 559 F.3d at 1135 (citing United States v. Abel, 469 U.S. at 52, 105 S.Ct. 465).
Although the statute does not provide language of punitive damages for § 1983 claims, the Supreme Court looked to the common law of torts, in holding that punitive damages are available. See Saavedra v. Lowe's Home Ctrs., Inc., 748 F.Supp.2d 1273, 1298 n. 3 (D.N.M.2010) (Browning J.) ("Section 1983 `was intended to create a species of tort liability in favor of persons deprived of federally secured rights.'") (quoting Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983)). See also Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 306, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986) (stating that the amount of the recovery in a § 1983 action is not capped by statute but rather "ordinarily determined according to principles derived from the common law of torts"). The Supreme Court concluded that there is "no reason why a person whose federally guaranteed rights have been violated should be granted a more restrictive remedy than a person asserting an ordinary tort cause of action." 461 U.S. at 48-49, 103 S.Ct. 1625. Accordingly, the Supreme Court looked to state and federal tort common law, holding that "a jury may be permitted to assess punitive damages in an action under § 1983 when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally
The Court will grant in part and deny in part the Defendants' Motion in Limine. The Court will exclude evidence of all prior and subsequent § 1983 cases naming Shelden or Lovato as defendants. The Court will also exclude evidence the New Mexico State criminal case against Lovato's. The Court will allow the Montoyas to present evidence of Shelden's improper signage in his vehicle through the Montoyas' testimony, because it is probative of the Defendants' scienter. The Court will also allow the Montoyas to present evidence of Lovato's credibility, through inquiring about providing false information to Chavez, the investigating officer, and the internal-affairs investigation board.
The Defendants seek to exclude any evidence of other civil or criminal lawsuits in which Shelden and Lovato are also defendants, because they are irrelevant to the Montoyas' claims, and because the danger of unfair prejudice would substantially outweigh any probative value of the cases. The Montoyas argue that the prior and subsequent cases are probative of Shelden's and Lovato's bias against suspects with whom they interact in the course of their job as police officers. With regard to judgments against Shelden and Lovato in § 1983 cases especially, the Montoyas assert that these past cases are admissible under rule 404(b), as they are offered as evidence of Shelden and Lovato's intent, an element the Montoyas must prove to recover on their request for punitive damages.
The Montoyas' § 1983 claim for false arrest against Shelden and Lovato turns on whether Shelden and Lovato had probable cause to arrest the Montoyas on April 16, 2007. Probable cause depends on the circumstances of the Montoyas' actions during the traffic stop. Whether there was probable cause for the Montoyas' arrests depends on whether M. Montoya's and D. Montoya's actions at the scene of the stop gave Shelden and Lovato probable cause to arrest him. Shelden's and Lovato's past wrongs or other civil cases are inapposite to whether Shelden and Lovato had probable cause to arrest the Montoyas, and, therefore, whether the arrest violated the Montoyas' constitutional rights.
The Montoyas allege that, in one of the unrelated § 1983 cases that ended in a judgment against Shelden, Shelden's course of conduct took much the same course as in this case: Shelden pulled over a citizen for a traffic violation, wrote the citizen a ticket, and as he was about to let the citizen go, asked the citizen to follow him back to his car and proceeded to arrest him. The citizen thereafter filed a § 1983 action alleging that Shelden falsely arrested the citizen and used excessive force in violation of the citizen's civil rights. See Tr. at 34:12-24 (Oliveros). While that unrelated case may not address the circumstances of April 16, 2007, the Montoyas assert that it is probative whether Shelden had probable cause and used excessive force against them, because it is evidence of Shelden's "modus operandi" when dealing with citizens at traffic stops. Because the identify of the police officer who used excessive force is not disputed in this case, the Tenth Circuit has foreclosed the Montoyas' contention that evidence of Shelden's modus operandi is relevant to a § 1983 claim for false arrest or excessive force. Chavez v. City of Albuquerque, 402 F.3d at 1046 (noting that "proof of a `modus operandi' is only relevant when there is an issue regarding the defendant's identity.").
Punitive damages can be awarded in § 1983 claims for excessive force "only when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others." Youren v. Tintic Sch. Dist., 343 F.3d at 1308. The Montoyas allege that the unrelated cases naming Shelden and Montoya are relevant and admissible, because "the evidence is necessary for the jury to evaluate whether punitive damages are appropriate." MIL Response at 3. They assert that the prior excessive force violations by Shelden and Lovato are "relevant for the jury to evaluate whether the particular defendant was motivated by an evil intent ... [or] reckless or callously indifferent to Plaintiffs." MIL Response at 3. Admissibility of evidence under rule 404(b) requires the Court to perform a four-factor test
United States v. Zamora, 222 F.3d at 762.
While evidence of a crime, wrong, or other act is inadmissible to prove that a person has a character trait, and acted in conformity with that trait, under rule 404, such evidence "may be admissible for another purpose, such as ... intent." Fed. R.Evid. 404(b). The Montoyas are offering these unrelated § 1983 cases against Shelden and Lovato as circumstantial evidence of their intent in the course of arresting the Montoyas on April 16, 2007. Thus, because intent is a permissible purpose enumerated under rule 404(b)(2), the Montoyas are offering this evidence for a proper purpose.
The second prong of admitting evidence pursuant to rule 404(b) requires the Court to find the proffered evidence relevant.
A § 1983 claim for excessive force against Shelden or Lovato ending in a judgment against them, however, indicates that a jury found Shelden and Lovato used force that was unreasonable in light of the circumstances. A judgment entered before the alleged unconstitutional conduct, makes more probable that Shelden or Lovato acted with recklessness for the civil rights of the Montoyas, because it would put Shelden or Lovato on notice of constitutionally
The Supreme Court has made clear that punitive damages are intended to punish a defendant for reprehensible conduct in this case, not for conduct in other similar, unrelated cases:
See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 422-23, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003). In this case, although evidence of the unrelated § 1983 cases against Shelden and Lovato may have probative value of Shelden's or Montoya's mental state in the course of their arrests of the Montoyas', the Court concludes that the danger of unfair prejudice substantially outweighs any probative value the evidence may have. Federal courts faced with the question of admitting, under rule 404(b), defendant officers' other unrelated § 1983 cases as evidence of the defendant officers' intent for punitive damages have reached the same conclusion in performing a 403 balancing test. See Berkovich v. Hicks, 922 F.2d 1018, 1023 (2d Cir.1991) (holding that, where the plaintiff offered evidence of the defendant officers' unrelated civil rights complaints as evidence of intent, the district court's exclusion of the cases was proper, because "exoneration of [the defendant] on six of the seven prior complaints certainly lessens the probative value of [the] similar act evidence, tilting the scales further toward a finding of undue prejudice"); Baker v. Cnty. of San Diego, No. 09-CV-1194 BEN, 2012 WL 1903899, at *3 (S.D.Cal. May 24, 2012) (concluding that the court should exclude evidence of prior alleged civil rights violations, offered as proof of the officer's intent for punitive damages, because no violation had been proven, lessening the probative value, and "the evidence may be used to impose liability for an improper basis, making the evidence inadmissable under Rule 403"); Berardi v. Village of Sauget, Ill., Civil No. 05-898-CJP, 2008 WL 2782925, at *5 (S.D.Ill. July 17, 2008) (concluding that allowing prior
While federal courts — outside of the Tenth Circuit and mostly in the Second Circuit — have left open the possibility that judgment might be admissible to show intent for punitive damages, no court has yet admitted such evidence, and the Second Circuit decision in O'Neill v. Krzeminski seems the most open to the possibility. Just three years after its decision in O'Neill v. Krzeminski, however, the Second Circuit, in Berkovich v. Hicks, affirmed the exclusion of an officer's other § 1983 cases offered as proof of intent. Moreover, the Tenth Circuit's decision in Tanberg v. Sholtis seems to have foreclosed, or at least suggests caution in recognizing, this possibility in the circuit. See Tanberg v. Sholtis 401 F.3d at 1170 (affirming the district court's exclusion of the police officer's unrelated § 1983 cases, noting that "a trial court does not abuse its discretion in excluding evidence of only slight probative value that creates a substantial danger of unfair prejudice"). In Tanberg v. Sholtis, the Tenth Circuit reasoned that a defendant officer's past instances of excessive force have very little probative value for proving intent in an unrelated instance:
401 F.3d at 1169. Accordingly, the Court concludes that the danger of unfair prejudice substantially outweighs any probative value the admission of any of Shelden's or Lovato's past § 1983 cases or judgment may have on their intent during the arrest of the Montoyas in this case. Like the cases in Tanberg v. Sholtis, while the judgments may have some probative value on intent, that probative value is limited; on the other hand, judgments in other cases could be very prejudicial on liability.
While there is probative value in a series of § 1983 cases lodged against Shelden and Lovato, and in § 1983 excessive force case judgments against Shelden and Lovato awarding punitive damages, none of these prior cases involved the Montoyas. Moreover, although, in O'Neill v. Krzeminski, Judge Newman would have held that the judgment against the officer was relevant and offered for a proper purpose, Judge Newman did not address whether the prior judgment would have withstood a rule 403 balancing test, as the Tenth Circuit requires when admitting evidence under
There is a final reason that the Court will not admit the judgments. The evidence is not as clear as the judgments first appear. After the juries declared their judgments, the parties apparently reached settlements in the cases. In Shelden's case, the parties entered a stipulation asking the Honorable Bruce D. Black, United States District Judge, to set aside the verdict, see Montoya v. Franklin, No. CIV 08-0478 BB/RLP, Defendant Gerald Shelden's Unopposed Motion to Set Aside the Judgment, filed October 13, 2009 (Doc. 73) ("Defendant Gerald Shelden ... moves this Court to set aside the Judgment.... As grounds, Defendant states that the parties have stipulated to set aside the Judgment entered against Gerald Shelden."); Judge Black did so finding cause, see No. CIV 08-0478 BB/RLP, Stipulated Order Setting Aside Judgment Against Defendant Gerald Shelden, filed October 15, 2009 (Doc. 74) ("[T]he Court having been advised of the parties' stipulation finds that good cause exists to grant Defendants' Unopposed Motion.... [T]he Judgment entered against Defendant Gerald Shelden on August 28, 2009 is hereby set aside"). In Lovato's case, after the jury delivered the verdict, the parties submitted a stipulation of the parties, advising that the parties "have resolved all issues in this matter." Canizales v. Armendariz, No. CIV 07-0198 JB/RHS, Stipulated Order of Dismissal, filed September 2, 2008 (Doc. 119). The Court did so. See Canizales v. Armendariz, Doc. 119. Thus, it appears the cases may have settled. The Court believes that these are additional reasons counseling the Court not to admit the judgments into evidence; it is not clear whether the cases were settled or the judgments continue to stand. This situation suggests that the issue of what judgments may be left in these cases should not be left to this jury in this case; given
Because evidence of other unrelated cases against Shelden and Montoya are not probative or sufficiently probative whether they had probable cause to arrest the Montoyas on April 16, 2007, whether they acted reasonably in the course of the Montoyas' arrest on that day, or whether they acted with the required intent to reward punitive damages, the Court will not permit the Montoyas to inquire about the Defendants' other unrelated cases or offer evidence of them.
Lovato was involved in an automobile accident with Chavez, an Albuquerque resident, while off-duty, and this accident resulted in an internal affairs investigation. See Montoya v. Sheldon, No. CIV 10-0360, 2012 WL 2383822, at *2 (D.N.M. June 8, 2012) (Browning J.) (noting the Court's review of the internal-affairs investigation of the accident). The Defendants ask the Court to exclude all evidence of Lovato's internal-affairs investigation, the state criminal case and charges that came out of the underlying incident, and the circumstances
The Court notes at the outset that the internal-affairs investigation and related circumstances have been the subject-matter of two prior opinions in this case. See Montoya v. Sheldon, 2012 WL 2383822 (Doc. 43); Montoya v. Sheldon, 2012 WL 1132505 (D.N.M. Mar. 20, 2012) (Doc. 39). In both opinions, the Court recognized that, "[o]nce a defendant takes the stand, her credibility is at issue as with any other witness." Montoya v. Sheldon, 2012 WL 2383822, at *3 (quoting United States v. Schuler, 458 F.3d 1148, 1155 (10th Cir. 2006)). The Court concluded in its first Memorandum Opinion and Order that the internal-affairs investigation and the underlying accident were permissible topics on cross-examination, but that the Court retains discretion to limit the questioning:
Montoya v. Sheldon, 2012 WL 1132505, at *9. The Court still agrees with its reasoning, and concludes that the specific instances of conduct are probative of Lovato's character for truthfulness or untruthfulness, and the Montoyas can inquire into these issues on cross-examination under rule 608(b).
While the Court finds Lovato's conduct of lying to Chavez, including providing a false CAD number and providing false information to a board during an internal-affairs investigation into his conduct probative of Lovato's character for untruthfulness, in allowing the Montoyas to cross-examine Lovato on these instances of conduct, the Court must balance the danger of unfair prejudice such evidence may have on the case. See United States v. Schuler, 458 F.3d at 1155 ("Consequently, under Federal Rule of Evidence 608(b), it is within the discretion of the district court to decide whether a defendant may be cross-examined about prior conduct concerning her character for truthfulness, subject always to the balancing test of Federal Rule of Evidence 403."). The Defendants contend that evidence that Lovato provided false information to Chavez at the scene of the accident is likely cumulative and that the Court should therefore exclude this part of the story, given that the gravity of providing false information to an internal-affairs investigation board is so great.
The Court will therefore allow the Montoyas to cross-examine Lovato as to the following: (i) that he provided false information to Chavez at the scene of an accident, (ii) that he represented to Chavez that he was on duty at the time of the accident when he was not; (iii) that he provided her with a false CAD number; and (iv) that he provided false information to the internal-affairs investigation board during the course of the subsequent investigation. The Court will not permit the Montoyas to inquire any further into the internal-affairs investigation, present evidence that Lovato was criminally charged as a result of the incident, or present evidence of the subsequent criminal charges.
If Lovato answers the questions reflecting his character for truthfulness and untruthfulness that the Court is permitting, then the Court will not permit the Montoyas any further questions about the matter and will not allow them to present any extrinsic evidence of the specific instances of conduct. If, however, Lovato does not answer the questions truthfully, but rather represents to the Court that he did not provide false information to Chavez and the internal-affairs investigation board, the Court will allow the Montoyas to call the detective involved in the internal affairs investigation to prove the conduct extrinsically.
Rule 608(b) provides:
Fed.R.Evid. 608(b). The text of rule 608(b) prevents the Montoyas from offering into evidence the internal investigation report, any evidence from the accident with Chavez, and from putting on the stand a witness to provide testimony of these lies at the outset of the case. Should Lovato disclaim any of the information regarding his providing false information to Chavez or the investigation board, the Court will allow the Montoyas to prove up the lies extrinsically under the specific contradiction doctrine. See United States v. Cerno, 529 F.3d 926, 944 (10th Cir.2008) ("If there is evidence that specifically contradicts a witness's testimony, impeachment evidence is admissible to demonstrate that the witness lacks credibility and has a propensity for lying.") (internal quotations and alterations omitted); United States v. Crockett, 435 F.3d 1305, 1313 (10th Cir.2006) (holding that, under the specific contradiction doctrine, "when a [witness] makes a false statement during direct testimony, the [opposing party] is allowed to prove, either through cross-examination or by rebuttal witnesses, that the [witness] lied as to that fact."). While
The Defendants request the Court to exclude "Improper Character Evidence against any of the Defendants (Including Reference to `New Miranda Rights' & other signage from Officer Shelden's police vehicle)." Motion in Limine at 2. The Montoyas will testify to seeing signage in the back of Shelden's police car and they assert that the signage referenced "New Miranda Rights," distorting the rights that criminal suspects are read advising them of their rights after the Supreme Court's decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). To the extent that the Defendants allege the signage is offered as character evidence or a bad act under rule 404(b),
The possible prejudice of the Montoyas' testimony about the sign does not substantially outweigh its probative value. If Shelden's subjective intent was to be humorous and place the suspects, whom he has just arrested and will shortly likely be placed in a detention facility, in a light-hearted mood, he can offer that testimony at trial, and evidence of the sign may not be prejudicial. If, on the other hand, that sign is evidence that Shelden was deliberately indifferent to the civil rights of the suspects whom he detained, and, though that evidence may be prejudicial to his defense, because it is an element the Montoyas must prove for their punitive damages claim, the danger of unfair prejudice does not outweigh the evidence's probative value. The sign may also go to emotional or punitive damages. The Court will therefore let the Montoyas testify to the signage that they saw in the back of Shelden's police cruiser and the effect the sign had on them.
