Free MEMORANDUM in Support - District Court of Delaware - Delaware

Case 1:04-cv-01254-Gl\/IS Document 148 Filed O9/28/2006 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
HARRY SMITH, JR, and ROSLYN )
WOODARD SMITH, Individually and as )
Administrators of THE ESTATE OF )
HARRY SMITH, III )
)
Plaintiffs, )
) Case No. 04-1254-GMS
v, )
)
CITY OF WILMINGTON, JOHN )
CHKITELLA, THOMAS DEMPSEY, and )
MATHEW KURTEN, )
)
Defendants. )
REPLY MEMORANDUM IN SUPPORT OF DEFENDANTS’
FIFTH MOTION IN LIMINE
(TO EXCLUDE EVIDENCE OR ARGUMENT
REGARDING RISK OF HARM TO THIRD PARTIESI I
Piaintiffs have stated that they intend to cali twenty·Iive witnesses to support their
argument that the defendants somehow violated Harry Smith, III’s rights by ostensibly putting
the neighborhood residents at risk. in their Fifth Motion in Linzine (DI 19), defendants
demonstrated, with supporting authority squarely on point, that the risk to third persons is
irrelevant to the determination whether Harry Smith, III’s constitutional rights were violated.
Plaintiffs response to defendants’ Motion in limine is remarkable for what it does not
contain. First, nowhere in plaintit`fs’ response do they even mention, much less address the
authorities cited in defendants’ motion. Second, plaintiffs fail to cite a single case holding that
the risk of harm to third persons is relevant to the determination whether the plaintiff was
deprived of his constitutional rights. They content themselves to refer to pattern jury instructions
to the effect that the jury should consider the totality of circumstances in determining whether
there has been a deprivation of a Fourteenth Amendment right by the excessive use of force.
it.I.Pl—3063885—l

Case 1:04-cv-01254-Gl\/IS Document 148 Filed O9/28/2006 Page 2 of 4
Defendants agree that the jury should consider the circumstances leading to the shooting, hut the
"totality of circu1nstances" has never extended to the risk of harm to third persons.
Plaintiffs also argue that they should be permitted to introduce evidence to prove the risk
posed to third parties because unspecified “police department policies" prohibited the defenclant
police officers iioni "discharging their weapons when an innocent bystander might be injt1red."]
Id. at 2. it is well-settled that a plaintiff can not rely upon a purported violation of police
department policy in order to establish a Fourth Amendment violation See, eg., Scott v.
Edinburg, 346 F.3d 752, 760 (7th Cir. 2003); Smith v. Frelmzd, 954 F.2d 343, 348 (6th Cir.
1992), cert. denied, 504 US, 9l5 (1992). This is especially true where, as here, the referenced
policy is intended to protect the rights of third parties not before the Court, as opposed to
protecting the rights of a fleeing suspect, such as plaintiff s decedent. Cf Howerton v. Flare-liar,
213 F.3d l71, li'5 (4th Cirr 2000) ("[T}he question is whether the officer acted reasonably as i
against the plainty That inquiry is not dependent at all on whether the officer did or did not
subject third parties to risk or even on whether he employed unreasonable force against thern.")
(ernphasis in original).
In the essence, plaintiffs seek to be compensated on the risk of harm to third persons. But
as the cases which have considered the issue unifornily hold, the focus is exclusively on what
happened to the plaintiff
I Plaintiffs misstate the pertinent Wilmington Police Department policy, which prohibits
the use of deadly force only when an injury to an innocent person is "likely."
2
RI..Fl~3063BB5~l

Case 1:04-cv-01254-Gl\/IS Document 148 Filed O9/28/2006 Page 3 of 4
-‘ A Ji
OF COUNSEL: a Parkins, Jr. (#859) ·
yler O’Connel1 (#4514)
Rosemarie Tassone Richards, Layton & Finger
City of Wilmington Law Department One Rodney Square
City/County Building, 9th Floor P. O. Box 551
800 N. French Street Wilmington, Delaware 19899
Wilmington, Delaware 19801 302»651~7700
302-576-2175 [email protected]
[email protected]
Attorneys for Defendants `
Dated: September 28, 2006
3
RLFL3063885-I

Case 1:04-cv-01254-G|\/IS Document 148 Filed O9/28/2006 Page 4 of 4
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF DELAWARE
CERTIFICATE OF SERVICE
I hereby ce1‘tit`y that on September 28, 2006, I electronically filed the foregoing document
with the Clerk of Court using CM/ECF which will send notification of such filing(s) and Hand
Delivered to the following:
K,este1·I.H. Crosse, Esquire
Williams & Crosse
l2l4 King Street
Suite 300
Wilmington, DE l980l
I hereby certify that on September 28, 2006, I have sent by U.S. Regular Mail, the
foregoing document to the following non-registered participants:
Anne T. Sulton, Esquire
Post Office Box 2763
Olympia, WA 98507 j
Jo .?'i 1>at·1a¤s,.it-. (#859) all
gr ards, Layton & Finger, AP. = .
I e Rodney Square
P.O, Box 55l
Wilmington, Delaware 19899
(302) 65l~7700
OCOl'Ll'lBli@I`ll.COm
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