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Jones v. Phillips

United States District Court, E.D. Wisconsin

April 6, 2017

CORVON L. JONES, Plaintiff,
v.
POLICE OFFICER OMARLO PHILLIPS, et. al, Defendants.

          ORDER ON THE PARTIES' MOTIONS IN LIMINE

          WILLIAM E. DUFFIN, U.S. MAGISTRATE JUDGE

         A jury trial is scheduled to commence on April 10, 2017, at 8:30 AM in Courtroom 242 of the United States Courthouse, 517 E. Wisconsin Avenue, Milwaukee, Wisconsin. The court resolved some of the parties' motions in limine at the final pretrial conference. The court ordered further briefing on a few others. Those motions are now ready for resolution.

         Defendants' second motion in limine (ECF No. 76 at 6): The defendants “strenuously object under Fed.R.Evid. 402, 403 and 404(b)” to “[a]ny and all mention of the unsustained and unfounded accusations of excessive force contained in the officers' inadmissible personnel files.” (ECF No. 76 at 6.)

         Jones responds that “the most salient point is Defendants' remarkable lack of familiarity with the information contained in their personnel files and their individual excessive force complaint records.” He states that he “does not wish to use the prior complaints as evidence of Defendants' propensities for unlawful action, but instead as evidence that citizen complaints about Defendants' use of force were effectively ignored. Such evidence demonstrates that Defendants were undeterred in acting with reckless disregard of Mr. Jones's constitutional rights and do not take citizen complaints regarding excessive force seriously, necessitating punitive damages.” (ECF No. 87 at 2.)

         As framed by Jones, such evidence might be relevant to a Monell claim, as the defendants point out in their reply brief. See Monell v. Department of Social Services, 436 U.S. 658 (1978). However, Jones has alleged claims against only the officers individually and has not presented a Monell claim. More importantly, even if the court were to regard the complaints relevant to a determination of whether punitive damages were warranted, the fact that these particular officers might not be familiar with certain complaints of excessive force lodged against them would be probative of a department policy or practice of ignoring claims of excessive force only if those claims had merit. Thus, even if Jones's intent in introducing the evidence is merely to show that the defendants “do not take citizen complaints regarding excessive force seriously, ” a finder of fact would have no basis for determining whether an investigation regarding those complaints was sufficient unless it also knew something about the facts underlying each complaint. Those facts cannot be gleaned from the hearsay statements contained in a personnel file.

         The court also finds that the prejudicial effect of this evidence significantly outweighs any probative value it might have. Under a “where there's smoke there's fire” theory, the jury would be tempted to look at the mere fact that complaints were lodged as evidence that these officers must have engaged in excessive force in this case. But evidence of prior conduct is narrowly circumscribed under the Federal Rules of Evidence. See Fed. R. Evid. 404(b). And for good reason. Hearsay statements of unsubstantiated reports of misconduct are not sufficiently reliable to be presented to a jury. Therefore, the defendants' motion in limine to exclude their personnel files is granted.

         Defendants' third motion in limine (ECF No. 76 at 7): A citizen recorded “the very end” (ECF No. 87 at 5) of the relevant interaction between Jones and the defendants. “[T]he defense vigorously contends that all of the audio should be excluded.” Jones agrees that the audio from 0:26 to 0:46 should be excluded but asks that the remaining audio be included.

         The court has closely scrutinized the video and its audio. At times the words are difficult to discern and thus this summary is the court's best assessment of what is said. The first voice heard appears to be that of a police officer yelling at a growing crowd, “Stay back!” and “Get back!” Then there is the audio that Jones agrees can be excluded, which the court understands is an exchange between the woman who shot the video and her daughter. Then the shouts of various persons in the gathering crowd can be heard. A woman is heard yelling, “He was beating the shit out that man! He was beating that baby all in his damn head!” There is much indiscernible yelling but various phrases can be heard: “What the fuck is you doing?” “Get off that boy!” “That's ridiculous. They beat him like that. He needs some medical attention. They beat that boy senseless.”

         To the extent any statement recorded on the video is hearsay, the statements constitute a present sense impression, Fed.R.Evid. 803(1), or an excited utterance, Fed.R.Evid. 803(1). Such statements are generally admissible because their spontaneity tends to support their trustworthiness. However, a spontaneous statement is not necessarily truthful; in many circumstances a speaker's interests might lie in spontaneously uttering a falsehood. The court recognizes that it is possible that a person may wish to agitate or incite a crowd vis-à-vis the police and thus excited utterances made under such circumstances might be especially unreliable. But this is a point that the court believes the jury can appropriately weigh and assess. Thus, to the extent that the statement is admitted for the truth of the matter asserted, the jury is not required to accept the statement as true. The jury may assess the veracity of the evidence as it does with other evidence.

         Nor does the court find that the admission of the audio would be unfairly prejudicial so as to be subject to exclusion under Rule 403. To say that a police officer “beat[] the shit out” of someone might connote a conclusion that the force used was excessive, but not necessarily. In this regard, the statement is arguably not hearsay because it is merely circumstantial proof of a fact in issue. See 2 McCormick On Evid. § 269 (7th ed.). Although stated quite colloquially, it might reflect merely an observation that the officers used physical force on Jones and Jones was injured as a result. But the court does not understand those facts to be in dispute.

         Finally, Jones agrees that a portion of the audio (the portion in which the woman who is recording the incident comments to her daughter that she needs to go to school, as well as their observations and speculation about the incident) may be excluded. The defendants did not address this point in their reply, instead arguing only that all of the audio should be excluded. It is unclear if the defendants' lack of a response reflects an agreement that this portion of the audio should still be excluded even if the court permits the admission of the rest of the audio.

         The court concludes that, absent a stipulation from the parties, the admission of the audio is an all-or-nothing proposition. The court finds that the portion of the audio identified by Jones is not subject to exclusion under Rule 403. Moreover, the court is concerned that editing out a portion of the audio will lead the jury to speculate about what is being kept from it. In the court's view, because the portion of the audio identified by Jones is not unfairly prejudicial or otherwise subject to exclusion under Rule 403, it is best to present the jury with the full story. Therefore, the defendants' motion in limine to exclude the audio of the video recording is denied.

         Defendants' fifth motion in limine (ECF No. 76 at 8-9): The defendants assert that, although Jones's complaint alleged only a claim of excessive force, he is now attempting to add claims for failure to intervene and punitive damages.

         Jones initiated this action without an attorney. Pleadings of pro se litigants are subject to liberal construction. The fact that Jones did not explicitly allege a separate failure to intervene claim (and the court likewise did not articulate such a claim in the court's initial screening of ...


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