Spaulding v. Newport

• Court: District Court, D. New Hampshire
• Decided: July 16, 1997
• Docket: CV-94-316-SD
• Status: Published

Opinion

Spaulding v . Newport CV-94-316-SD 07/16/97 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Bert Spaulding, S r .

v. Civil N o . 94-316-SD

Town of Newport; Henry Rodeschin, individually

O R D E R

Currently pending in this civil rights action are three

motions in limine (documents 4 0 , 4 3 , 5 5 ) .

Plaintiff has moved in limine to exclude evidence of

plaintiff’s re-election to the board of selectmen. Plaintiff

argues that his re-election to the board is inadmissible because

it is not relevant under the definition provided by Rule 4 0 1 ,

Fed. R. Evid. Defendant argues that the plaintiff’s re-election

may be relevant to the determination of his damages, since he

claims damages continuing into the future. As the probative

value of such evidence is not substantially outweighed by the

danger of unfair prejudice, see Rule 403, Fed. R. Evid.,

plaintiff’s motion in limine to exclude evidence of his re-

election (document n o . 43) is denied.

Defendant has moved in limine to exclude evidence pertaining to certain changes in the structure of meetings instituted at a September 5 , 1991, meeting of the Board of Selectmen. Defendant argues that the changes represent a subsequent remedial measure made inadmissible by Rule 4 0 7 , Fed. R. Evid. However, the rule does not “require the exclusion of evidence of subsequent remedial measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.” Id. Plaintiff argues that the evidence would tend to show the feasibility of running the Board meeting in another way. However, since the court has already found that the agenda rule was facially constitutional as originally written, the “feasibility” issue is essentially not controverted. Accordingly, the court grants defendants' motion in limine regarding subsequent remedial measures (document 4 0 ) .

Defendant has also moved in limine to preclude plaintiff from offering evidence as to special damages. Although plaintiff has indicated in chambers that he objects to this motion, he has not filed an objection as of the date of this order. The court has previously ruled that plaintiff’s arrest was supported by probable cause. However, the arrest, while not violating plaintiff’s Fourth Amendment rights, may have been the result of a violation of plaintiff’s First Amendment rights, given the

2 possible motivations of defendant Rodeschin. The First Circuit has recently noted that “an arrest based on probable cause might still be unlawful if the police officer acted simply for the purpose of punishing protected speech.” Abraham v . Nagle, ___ F.3d ___, 1997 WL 295641, at * 5 (1st Cir. June 9, 1997). The issue remains unresolved in the First Circuit. Nonetheless, given prior rulings of this court, defendants may be liable for plaintiff's injuries arising from his arrest. Accordingly, defendants' motion in limine (document 55) is denied.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

July 1 6 , 1997

cc: All Counsel