Free Motion in Limine - District Court of Colorado - Colorado

Case 1:03-cv-02633-PSF-PAC

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-02633-PSF-PAC LILLIAN BARTON, Plaintiff, v. OFFICER R. BLEY, Badge No. 99006 OFFICER N. SAGEN, Badge No. 96-021 OFFICER JOHN DOE Defendants. and Civil Action No. 04-cv-319-PSF-PAC LILLIAN BARTON, Plaintiff, v. RICHARD BLEA NICK SAGAN JOSH VASCONCELLOS Defendants. ______________________________________________________________________________ DEFENDANTS' MOTIONS IN LIMINE ______________________________________________________________________________ Defendants, OFFICER RICHARD BLEA (incorrectly designated as "Bley"), OFFICER NICK SAGAN (incorrectly designated as "Sagen"), and OFFICER JOSH VASCONCELLOS (hereinafter "Defendants"), by their attorneys, SONJA S. McKENZIE and BRETT A. McDANIEL of SENTER GOLDFARB & RICE, L.L.C., hereby file the following Motions In Limine:

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I. FACTUAL BACKGROUND On February 24, 2002, Plaintiff was contacted via telephone by her ex-husband, Lawrence Gomba, who requested a ride due to a flat tire on his trailer mounted hydroseeder. Plaintiff left her home in Evergreen, Colorado and traveled to the Phillips 66 Gas Station located at 450 North Federal Boulevard to assist Mr. Gomba. While Plaintiff was en route, Mr. Gomba attempted to relieve some of the weight from the hydroseeder so that he could free the truck from the trailer by releasing some of the contents onto the parking lot. Due to the pressure placed on the release valve from the flowing substance, Mr. Gomba was unable to close the valve and stop the flow of liquid from the hydroseeder which resulted in the spilling of nearly 1,000 gallons of hydroseeding liquid onto the parking lot. Mr. Gomba was eventually able to free his truck and leave the scene prior to Plaintiff' arrival. s Gas Station Attendant Tahnee Castaneda contacted the police dispatch center and reported the illegal dumping which was occurring in the rear parking lot of the Phillips 66 Gas Station. Denver Police Officers Blea, Sagan and Vasconcellos were dispatched to the scene on an illegal dumping call. Upon their arrival, the officers observed an unknown greenish substance spilling onto the ground from the hydroseeder and spreading across the rear of the parking lot and onto the adjacent public street. The spill ran approximately one block east on Short Place into a residential area where there were children playing. Officer Blea questioned Plaintiff regarding the spill, wherein she stated that it was her husband' business and that she was not s responsible as she was only there to pick him up. After refusing to cooperate with the officers' investigation and provide them with any identification, Plaintiff attempted to leave the premises in her vehicle. In doing so, she repeatedly slammed her driver-side door into Officer Blea and

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began screaming. Based upon these actions and her refusal to cooperate with the officers, she was removed from her vehicle, handcuffed and placed into a patrol car. In the meantime, due to the unknown nature of the green substance spilling onto the ground, the Denver Fire Department was called to evaluate the situation for a potential hazardous spill. Once Plaintiff stopped yelling and calmed down, she was assisted from the patrol car, her handcuffs were removed, and she was issued a General Session Summons and Complaint for a violation of Municipal Ordinance 38-31 for Interfering with Police Authority. Plaintiff then left the scene of the spill without further incident. Shortly thereafter, Lawrence Gomba returned to scene and provided the Fire Department with information relating to the contents of the spill. Mr. Gomba was issued a citation for Unlawful Dumping in violation of Municipal Ordinance 4844. II. FIRST MOTION IN LIMINE (Motion to Exclude Any Evidence Regarding the Investigation and Recommendation of the Public Safety Review Commission) Following Plaintiff' Complaint surrounding the subject incident of February 24, 2002, s the Public Safety Review Commission ( hereinafter "PSRC") for the City and County of Denver, a civilian oversight committee which has no power to impose discipline on officers, issued a March 29, 2004 letter of recommendation to Chief Gerald Whitman. The letter recommended sustaining charges against Defendants for violating Department Rule and Regulation Section RR-306, "UNNECESSARY FORCE," RR-127 "RESPONSIBILITIES TO SERVE PUBLIC," AND RR-140 "DISCOURTESY."

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The PSRC recommendation letter states that, "The Complainant was sixty-eight years old at the time of the incident, is less than 5' 2" tall and weighs less than 110 pounds. She was attempting to do a favor for her exhusband, yet the officers treated her like she was a criminal by placing her in handcuffs and ticketing her on a frivolous charge. Therefore, the Commission recommends that the above charges be sustained against the officers." References to this recommendation are contained within Plaintiff' Exhibit No. 4, "Letter s from the City and County of Denver Public Safety Review dated March 29, 2004 to Chief Gerald Whitman and signed by Roxanne D. Baca." This letter is inadmissible hearsay and must be excluded pursuant to Fed.R.Evid. 802. Evidence relating to the PSRC' recommendation that charges be sustained for s Defendants' alleged violations of rules and regulations of the Denver Police Department must also be excluded because it is not relevant to the determination of whether Defendants' conduct was reasonable and appropriate conduct under the circumstances and/or was so "outrageous in character and so extreme in degree, as to go beyond all possible bounds of decency... " See, e.g., Saucier v. Katz, 533 U.S. 194, 205, 121 S.Ct. 2158 (2001), see also, Rugg v. McCarty, 476 P.2d 753, 756 (Colo. 1970). Neither is the PSRC' recommendation relevant to whether the s

Defendants exerted improper pressure or influence over the prosecutor or knowingly made false statements to the prosecutor. See, Reed v. City of Chicago, 77 F.2d 1049 (7th Cir. 1996); Eubanks v. Gerwen, 40 F.2d 1157, 1160 ­ 61 (11th Cir. 1994) ). Pursuant to Rule 402 of the Federal Rules of Evidence, "[e]vidence which is not relevant is not admissible." Fed.R.Evid. 402. Rule 401 of the Federal Rules of Evidence states that "` relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would

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be without the evidence." Fed.R.Evid. 401. The relevant issue is whether Defendants' actions constituted excessive force and/or malicious prosecution in violation of the Fourth Amendment to the United States Constitution, not whether they were recommended for discipline by a civilian review board for allegedly violating various Departmental policies during the subject incident.1 This is equally true for Plaintiff' claim of outrageous conduct. s It is well settled that claims made under 42 U.S.C. § 1983 cannot be based on violations of state law and/or police procedures. Medina v. Cram, 252 F.3d 1124, 1133 (10th Cir. 2001). Furthermore, the failure to adhere to an administrative regulation does not establish a constitutional violation. Hovater v. Robinson, 1 F.3d 1063, 1068 n. 4 (10th Cir. 1993) (citing Davis v. Scherer, 468 U.S. 183, 194, 104 S.Ct. 3012, 3019, 82 L.Ed.2d 139 (1984)). As such, the PSRC' recommendation that charges against Defendants for allegedly violating the s previously referenced rules and regulations of the Denver Police Department is not relevant in determining whether or not Plaintiff' rights under the Fourth Amendment of the United States s Constitution were violated. Neither is such recommendation relevant to Plaintiff' claim of s outrageous conduct. Even if the Court determines that evidence or testimony pertaining to the PSRC' s recommendations are relevant, it must be excluded pursuant to Rule 403 of the Federal Rules of Evidence for its probative value is substantially outweighed by the danger of unfair prejudice. Rule 403 of the Federal Rules of Evidence states that "relevant evidence may be excluded ` its if probative value is substantially outweighed by the danger of unfair prejudice.' Phillips v. " Hillcrest Medical Center, 244 F.3d 790, 800 (10th Cir. 2001); Fed.R.Evid. 403. The probative
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Each Defendant was exonerated by the Internal Affairs Bureau for all recommended charges by the PSRC, with the exception that the charge of discourtesy against each Defendant was not sustained.

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value, if any, of the PSRC' mere recommendation that charges be sustained is outweighed by s the danger of unfair prejudice and confusion of the issues for the jury, particularly given the fact that PSRC' position was only a recommendation. As such, all evidence pertaining to the s PSRC' recommendation that Defendants violated Denver Police Department Rule RR-306, RRs 127, and RR-140 should be excluded. Moreover, Plaintiff has endorsed Ms. Roxane D. Baca of the PSRC as a witness in this matter to testify regarding the PSRC recommendations. As the PSRC is a civilian oversight committee and as Ms. Baca has not been endorsed as an expert, Ms. Baca' testimony is s exclusively lay opinion testimony. If Ms. Baca were to testify as to matters requiring specialized knowledge about police policies, practice, and procedure, her testimony must be deemed to be that of an expert. See, Fed.R.Civ.P. 702. Since Ms. Baca has not been endorsed as an expert and since the requisite expert disclosures have not been made pursuant to Fed.R.Civ.P. 26(a)(2), her testimony regarding these matters must be precluded. See, Fed.R.Civ.P. 37(c)(1). Accordingly, in light of those matters set forth above, all evidence and testimony pertaining to the investigation and recommendation of the PSRC surrounding the subject incident must be excluded. III. SECOND MOTION IN LIMINE (Motion in Limine to Exclude Any Evidence or Testimony Pertaining to Plaintiff' Damages) s Plaintiff' Exhibit No. 14 and Exhibit No. 15 are purportedly itemizations of damages s that Plaintiff has sustained as a result of the present litigation and the underlying criminal case. [See, Exhibits 1 and 2 attached hereto]. As an initial matter, Defendants object to these exhibits as they were not produced in the course of discovery. Moreover, Plaintiff has not produced or

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disclosed supporting documentation for the majority of these damages. A party that "without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1)... is not... .permitted to us as evidence at trial... any witness or information not so disclosed." Fed.R.Civ.P. 37(c)(1). As Plaintiff failed to disclose the itemization of her alleged damages and all supporting documentation in the course of discovery, Defendants have been deprived of their opportunity to conduct further discovery related to Plaintiff' damages. s Plaintiff' failure to make such s

requisite disclosures was not harmless and therefore introduction of these exhibits and any testimony related thereto at trial in this matter must be precluded. See, id. In addition, these exhibits contain extraneous matters which are neither itemizations of damages nor previously disclosed materials.2 For example, Exhibit No. 14 contains a letter to Plaintiff' prior attorney, Mr. Brice Tondre, which is not an itemization, is not relevant, and is s inadmissible hearsay. See, Fed.R.Evid. 401, 803; see also, Fed.R.Civ.P. 16(e).3 Further, the

"itemization" contained within Exhibit No. 14 contains inadmissible hearsay commentary by Plaintiff pertaining to her case and representations made to Plaintiff by "her doctor." Thus, this exhibit must be stricken for these reasons as well. See, e.g., id. Similarly, Exhibit No. 15 contains what appears to be a fee agreement with Tamas Viski­ Hanka (with attachments containing legal opinion) and Kaiser Permanente statements outlining and describing matters neither relevant to this proceeding nor previously disclosed. Pursuant to

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Defendants propounded discovery seeking this information. Pursuant to D.C.ColoLCiv.R 16.3-Appendix G, the parties exhibit list "should be specific enough so that other parties and the court can understand, merely by referring to the list, each separate exhibit which will be offered." Accordingly, these materials have not been properly or timely set forth as proposed exhibits within the controlling pleading in this matter and cannot be subsumed within Plaintiff' description thereof. Therefore, these extraneous s materials should be excluded from introduction in this matter. See, Fed.R.Civ.P. 16(e).

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Fed.R.Civ.P. 16(e), Fed.R.Civ.P. 26(e)(1), and Fed.R.Evid. 803, Plaintiff' Exhibit Nos. 14 and s 15 (and testimony related thereto) must be precluded for these reasons as well. IV. THIRD MOTION IN LIMINE (Motion in Limine to Exclude any Evidence or Testimony Pertaining to Defendants Disciplinary Records) As an initial matter, it should be noted that collectively Defendants have received sustained charges for:4 ? ? ? Failure to Attend; and Improper Procedure-Preventable Accident; and Have received various other complaints which were either not sustained or were exonerated (including an allegation of unnecessary force against Officer Sagan which was not sustained). Pursuant to Rule 404(b) of the Federal Rules of Evidence, "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action and conformity therewith." Fed.R.Evid. 404(b). However, such evidence may be admissible to establish "proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absent a mistake or accident . . ." Id. Evidence of other crimes, wrongs, or acts may be properly admitted under Rule 404(b) if the following four requirements are met: (1) the evidence was offered for a proper purpose under Fed.R.Evid. 404(b); (2) the evidence was relevant under Fed.R.Evid. 401; (3) the probative value of the evidence was not substantially outweighed by its potential for unfair prejudice under Fed.R.Evid. 403; and (4) the District Court, upon request, instructed the

For convenience and as pertinent to the argument set forth herein, the Internal Affairs records of each Defendant have been grouped into a single listing.

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jury pursuant to Fed.R.Evid. 105 to consider the evidence only for the purpose for which it was admitted. See, United States v. Becker, 230 F.3d 1224, 1232 (10th Cir. 2000) (referring to Huddleston v. United States, 485 U.S. 681, 691-92, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988)). Such requirements have been referred to by the courts as the "Huddleston" analysis. For the reasons set forth below, any evidence or testimony regarding these officers' disciplinary records, to the extent Plaintiff intends to ask about it or introduce evidence or testimony pertaining to it, should be deemed inadmissible since Plaintiff cannot meet her burden under the Huddleston analysis. If, for some reason, Plaintiff satisfies the first three elements of the Huddleston

analysis, a limiting instruction regarding the evidence is required. Evidence or testimony of these officers' disciplinary records is not offered for proper purpose(s) pursuant to Rule 404(b). Rule 404(b) of the Federal Rules of Evidence permits evidence of other "acts" to establish "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . ." Fed.R.Evid. 404(b). Evidence regarding these officers' disciplinary records will not establish motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident with regard to the officers' contact with Plaintiff on February 24, 2002. Instead, Plaintiff could only be offering this evidence or

testimony for the specific purpose of proving the character of these officers in order to show action and conformity with the alleged behavior on the date of the subject incident. Put simply, should Plaintiff attempt to rely upon evidence of other disciplinary actions to establish that the character of these officers resulted in the use of excessive force upon Plaintiff, this tactic is in contravention of Rule 404(b). Accordingly, any evidence or testimony relating to the officers' disciplinary records should not be allowed for this purpose.

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Further, evidence or testimony related to the officers' disciplinary records is not relevant pursuant to Rule 401. Rule 401 of the Federal Rules of Evidence states that evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. Based upon the claims asserted by Plaintiff, evidence pertaining to these officers'

disciplinary records does not survive this test. As a result, such testimony is not only violative of Rule 404(b), but is irrelevant for purposes of Rule 401. Additionally, the probative value of evidence or testimony related to the officers' disciplinary records is substantially outweighed by unfair prejudice. As stated above, any

evidence regarding the officers' disciplinary records is irrelevant for purposes of Rule 401. It therefore cannot be argued that such testimony has any probative value, let alone some probative value which would outweigh its significant prejudicial effect to the Defendant officers. The Tenth Circuit has held that "evidence is unfairly prejudicial if it ` makes a [verdict] more likely because it provokes an emotional response in the jury or otherwise tends to affect adversely the jury' attitude toward the Defendant wholly apart from its judgment as to his guilt or innocence s of the crime charged.'" United States v. Roberts, 88 F.3d 872, 880 (10th Cir. 1996) (citing United States v. Yazzie, 59 F.3d 807, 811 (9th Cir. 1995). Without any probative value, the admission of this evidence would only serve to provoke an emotional response from the jury or adversely affect the jurors' attitudes towards these officers. Such evidence would not only result in the jury inappropriately forming impressions with regard to these officers' actions when contacting citizens, but also might cause a jury to conclude that these officers acted inappropriately in their contact with Plaintiff. Plaintiff will

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therefore be unable to establish that the probative value of the proposed evidence or testimony regarding the officers' disciplinary records significantly outweighs its unfair prejudice to these officers. As such, this evidence fails the third requirement of the Huddleston analysis. Should the Court determine that the testimony or evidence pertaining to the officers' disciplinary records is admissible, a limiting jury instruction is necessary. If the Court decides to admit this evidence, Defendants respectfully request that the Court provide the jury with a limiting instruction that explains for what specific purpose such evidence or testimony may be relied upon. Such an instruction must be given if requested. See, United States v. Wilson, 107 F.3d 774, 782 (10th Cir. 1997). V. CONCLUSION For the reasons herein, Defendants respectfully request that the Court enter an Order, in limine, precluding the presentation of any evidence or testimony relating to the investigation and recommendation of the Public Safety Review Commission surrounding the subject incident, to Defendants' disciplinary records, and Plaintiff' itemization of damages as set forth within Joint s Exhibits 14 and 15.

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Respectfully submitted,

s/ Brett A. McDaniel Sonja S. McKenzie Brett A. McDaniel Senter Goldfarb & Rice, L.L.C. 1700 Broadway, Suite 1700 Denver, CO 80290 Telephone: (303) 320-0509 FAX: (303) 320-0210 E-mails: [email protected] [email protected] Attorneys for Defendants Gerald Whitman, City and County of Denver, Officer Richard Blea, Officer Nick Sagan, Chris Ramsey, Mayor John Hickenlooper, Rudy Sandoval, Wellington Webb, J. Wallace Wortham, Jr. and Officer Josh Vasconcellos

CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 6th day of June, 2006, I electronically filed a true and correct copy of the above and foregoing MOTIONS IN LIMINE with the Court via CM/ECF system and served via the U.S. mail, first class postage prepaid, addressed as follows: Lillian Barton 97 Soda Creek Road Evergreen, CO 80439 John Eckhardt Denver City Attorney' Office s 201 West Colfax Avenue - Dept 1108 Denver, Colorado 80202

s/ Kathleen Bertz Kathleen Bertz E-mail: [email protected] Secretary for Attorney Brett A. McDaniel

00225747

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