7UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------------------------------------------------------- x TEVON THOMAS, et al., : : Plaintiffs, : : SHORT-FORM -against- : MEMORANDUM & ORDER : 14-cv-7513 (ENV) (VMS) JOEBIAN ORTIZ, et al., : : Defendants. : -------------------------------------------------------------- x -------------------------------------------------------------- x HAROLD BROWNE, et al., : 16-cv-4224 (ENV) (VMS) : Plaintiffs, : : -against- : : JOEBIAN ORTIZ, et al., : : Defendants. : -------------------------------------------------------------- x VITALIANO, D.J. Jury selection in this matter was scheduled for March 30, 2020. In anticipation of trial, the parties submitted various motions in limine. Due to the disturbance caused by the COVID-19 pandemic, the trial was adjourned without date. The motions are resolved in the manner and for the reasons set forth below. I. Plaintiffs’ Motions in Limine Request Ruling (A) Plaintiffs seek to preclude defendants (A) As defendants do not intend to introduce from introducing evidence concerning evidence of plaintiffs’ financial status or job plaintiffs’ financial status and employment history, unless plaintiffs open that door by testifying about economic damages, plaintiffs’ history. Dkt. 146, Pls.’ Mem., at 9–10.1 motion is denied as moot. However, defendants alert the Court to evidence relating to certain plaintiffs’ employment that is proffered as relevant to establish a
relationship between them and their activities leading up to their arrest. Dkt. 151, Defs.’ Opp’n at 3. To the extent defendants intend to offer such evidence, defendants will, not later than two weeks prior to trial, specify the evidence they intend to adduce for this purpose and make a showing as to its probative value. (B) Plaintiffs concede that plaintiff Ravin (B) Defendants intend only to introduce Cox’s 2011 conviction for Aggravated evidence of the nature of Cox’s and Thomas’s
Unlicensed Operation of a Motor Vehicle in convictions, Defs.’ Opp’n at 5–6, and, the First Degree was a felony conviction that therefore, plaintiffs’ motion as to other felony passes the standard of admissibility under or misdemeanor convictions is denied as Rule 609(a)(1)(A), but they move to preclude moot. defendants from impeaching Cox with it on A felony conviction of a witness in a staleness grounds and in light of its civil case, it is widely understood, is prejudicial effect. Pls.’ Mem. at 12. admissible, but subject, of course, to the
1 All citations to pages refer to the Electronic Case Filing System (“ECF”) pagination. Similarly, although they acknowledge the balancing strictures of Rule 403. Fed. R. 2018 homicide conviction of Tevon Evid. 609(a)(1)(A). Admissibility under Rule Thomas—whom they do not anticipate calling 403 depends on “(1) the impeachment value as a witness—is admissible under Rule 609, of the prior crime, (2) the remoteness of the
they seek to bar defendants from calling him prior conviction, (3) the similarity between as a witness, and impeaching him with his the past crime and the conduct at issue, and conviction, under Rule 403. Id. at 12–13; 22– (4) the importance of the credibility of the 23. Finally, they move to preclude defendants witness.” Stephen v. Hanley, No. 03-cv-6226 from introducing plaintiffs’ misdemeanor (KAM) (LB), 2009 WL 1471180, at *4 convictions, and the felony convictions of (E.D.N.Y. May 21, 2009). plaintiffs Gary Jeanty, David Alcindor, and Put plainly, plaintiffs have not shown, Milton Sears, which are over ten years old and it is their burden to do so, that these and which did not involve crimes of factors weigh in favor of granting their dishonesty. Id. at 13–17. motion. As to Cox, his conviction, as a
felony, has at least some probative value for veracity, see Jean-Laurent v. Hennessy, 840 F. Supp. 2d 529, 544 (E.D.N.Y. 2011), but the crime was not one of dishonesty—a fact that cuts against admission. Cf. United States v. Brown, 606 F. Supp. 2d 306, 313 (E.D.N.Y. 2009) (illegal firearm possession involves neither untruthfulness nor deception, which counsels against admission). On the other edge of the sword, though, because the conduct at issue and Cox’s conviction have little in common, the jury is less likely to be confused or unduly prejudiced by its
introduction. Jean-Laurent, 840 F. Supp. 2d at 544. Furthermore, as Cox is attempting to convince the jury of his version of events on the night of his arrest, the jury’s assessment of his credibility is critical to its reaching a verdict as to his claim. In other words, that sort of impact on a jury is not unduly prejudicial. Finally, applicable case precedent strongly suggests that a conviction that is close to, but not quite ten years in age, such as
Cox’s nine-year-old felony, is not prejudicially stale. See Jones v. City of New York, No. 98-cv-6493 (LBS), 2002 WL 207008 (S.D.N.Y. Feb. 11, 2002); see also Hartman v. Snelders, No. 04-cv-1784, 2010 WL 11626508, at *10–11 (E.D.N.Y. Jan. 28, 2010) (analyzing convictions for which less than ten years had elapsed as “recent”). Because the evidentiary arguments advanced by plaintiffs, at best, show that only two of the factors weigh against admission, and, at that, only somewhat, and counterpointed by factors weighing strongly in favor of
admission, the Court cannot conclude the probative value of the conviction is “substantially outweighed” by any prejudicial effect. Fed. R. Evid. 403 (emphasis added). Even more compelling are defendants’ grounds to admit Thomas’s homicide conviction. Concededly, a homicide conviction is more prejudicial than Cox’s motor vehicle conviction, and it does not involve dishonesty. However, the recency of
Thomas’s conviction, only two-years-old, and the fact that he is a plaintiff who will seek to persuade the jury to credit his version of events, weigh heavily in favor of admission. See Jean-Laurent, 840 F. Supp. 2d at 544. In light of these realities, to find his homicide conviction is inadmissible in this case because of its prejudicial effect would, for all intents and purposes, be to hold that a homicide conviction is never admissible under Rule 609. The Rule could have quite easily and quite precisely been written to say exactly that, but it was not. The Court declines to re-
write the Rule in this fashion. Since truly, the only factor plaintiffs advance is the prejudicial aspect of the jury’s assessment of the testimony of a witness impeached by his homicide conviction, the motion to bar such impeachment is denied. But, there is a caution flag. To mitigate the prejudicial impact of such evidence, defendants are cautioned not to engage in any examination of Thomas that
might elicit testimony as to the underlying facts of the conviction. Lastly, that plaintiffs do not intend to call Thomas as a witness has no bearing on the impeachment value of his conviction should he be called to testify by defendants. Bluntly, whether plaintiffs want to shield Thomas from the jury, he is a highly relevant witness regarding his claims against defendants, and defendants are well-within their rights to call him in this case. See Fed. R. Civ. P. 45(c)(1)(B)(i); see also Fed. R. Evid. 607 & advisory committee’s note to
1972 Proposed Rules (abandoning rule against impeaching one’s own witness). Whether they decide to do so is merely a matter of trial strategy, since the impeachment of Thomas with his homicide conviction is permissible regardless of who calls him. The motion to bar defendants from calling Thomas to testify and, if called as a witness, to bar his impeachment with his 2018 homicide conviction, is denied.
(C) Plaintiffs seek to preclude defendants (C) In their motion, plaintiffs grasp, correctly, from introducing plaintiffs’ criminal histories, that evidence that a plaintiff has been arrested including Exhibits K–R, which are copies of and incarcerated, even for misdemeanors, and plaintiffs’ “rap sheets,” arguing their even in the absence of conviction, is relevant prejudicial effect is disproportionate to any on the question of claimed emotional probative value as to damages. Pls.’ Mem. at damages in a lawsuit for wrongful 17–18. In the alternative, they argue that the incarceration.2 See Cicero v. City of New
2 As held in II(A), infra, plaintiffs’ fair trial and malicious prosecution claims cannot proceed, as the prosecutions against them did not terminate favorably, and they seek to impugn the very Court should bifurcate the liability and York, No. 11-cv-0360 (NGG), 2011 WL damages phases of the trial. Id. at 19. 3099898, at *4 (E.D.N.Y. July 25, 2011). Such claims may be challenged here since defendants draw attention to portions of
certain plaintiffs’ deposition testimony in which they contend their arrests and subsequent detentions led them to fear small spaces and police officers, or that they suffer from flashbacks. Defs.’ Opp’n at 3. Clearly, evidence that these plaintiffs have been previously arrested or incarcerated may inform the jury’s assessment of the extent of emotional harm. See Wisdom v. Undercover Police Officer #C0127, 879 F.
Supp. 2d 339, 342 (E.D.N.Y. 2012) (admitting evidence of prior arrests, but not the underlying facts, to aid the jury in its damages finding); Phillips v. City of New York, 871 F. Supp. 2d 200, 207 (E.D.N.Y. 2012) (evidence of prior arrests and incarceration relevant to emotional damages). Yet, the reasoning of such decisions
grounds supporting the charges against them. must be parsed. The fact that a plaintiff previously arrested or incarcerated is claiming emotional damages on account of a wrongful arrest is extremely relevant, while the reasons
for the previous arrest can be quite prejudicial. See Ramos v. Cty. of Suffolk, 707 F. Supp. 2d 421, 424 (E.D.N.Y. 2010). Accordingly, in light of the inherently prejudicial nature of a previous conviction, defendants shall be permitted, for these purposes, to introduce evidence regarding only the number of times each plaintiff was arrested and the length of each period of detention or incarceration in a jail cell. To
facilitate such evidence, a plaintiff’s rap sheet may be used to refresh a witness’s recollection but shall not be admitted. (Any failures of recollection will be handled during trial.) Furthermore, by mitigating any prejudicial effect in this manner, bifurcation will not be necessary. Of course, should plaintiffs withdraw their claim for emotional injuries, as they have signaled, see Pls.’ Mem. at 19–21, defendants may not introduce any evidence of plaintiffs’ prior arrests or the period incarceration for the purpose of controverting
damages. (D) Plaintiffs seek to preclude defendants (D) As discussed in I(B), supra, defendants from calling Tevon Thomas as a witness to may call Tevon Thomas as a witness, even if elicit testimony as to his recent conviction for their primary motivation is to impeach the homicide, arguing such a tactic would lead to credibility of the claim he makes in his a distortion of Rule 609. Pls.’ Mem. at 22– complaint. See Patrick v. City of Detroit, 906 23. F.2d 1108, 1113, 30 Fed. R. Evid. Serv. 1252 (6th Cir. 1990) (affirming the right, under Federal Rule of Evidence 607, to impeach an adverse party after calling him as a witness).
Indeed, as further explained in I(B), supra, defendants would be well within their right to impeach Thomas with his homicide conviction under Federal Rule of Evidence 609, which clearly permits such impeachment, should he take the stand of his own volition. That plaintiffs seek to insulate Thomas from exposure to his homicide conviction is uncompelling, and plaintiffs offer no case law supporting their position. The motion, therefore, is denied. (E) Plaintiffs seek to preclude defendants (E) Since defendants concede they do not from introducing plaintiffs’ prior lawsuits. seek to introduce evidence of plaintiffs’ prior
Pls.’ Mem. at 24–25. lawsuits, Defs.’ Opp’n at 2, the motion is denied as moot. (F) Plaintiffs seek to preclude defendants, on (F) The Court will not disturb the preclusion the basis of a prior ruling, from introducing order entered as a sanction against defendants defendants’ Exhibit JJ, which contains audio relating to apparent misconduct in the course recordings of certain plaintiffs’ telephone of discovery. The motion, therefore, is calls from Rikers Island during their granted. If, however, defendants represent at incarceration, noting that Magistrate Judge trial that testimony offered by a witness Vera M. Scanlon has already ordered that conflicts with the recordings in Exhibit JJ, defendants are precluded from using the defendants will be permitted at that time to
recordings in their case-in-chief and for make an offer of proof to that effect. The impeachment purposes. Pls.’ Mem. at 25–27. Court will then consider whether any plausibly false statement, made under oath in open court, merits reference to the United States Attorney and/or disciplinary action. In any event, at trial, all other tools of impeachment will remain available with respect to such testimony. (G) Plaintiffs move to preclude defendants (G) Inescapably, the presence of marijuana at from inquiring into plaintiffs’ use or the scene—both fresh and burned—plays a familiarity with marijuana. Pls.’ Mem. at 27– central role in the events on the night of the 28. arrest. That no marijuana was recovered from any plaintiff’s person, nor was any plaintiff
charged with actual marijuana possession, does nothing to alter the reality of the presence of marijuana at the scene. This is not to say, however, that plaintiffs’ subjective familiarity with marijuana could have informed the arresting officers’ probable cause determination at the time of arrest. In this light, defendants are free, on cross-examination, to question a testifying plaintiff as to any such familiarity if, as
defendants predict, he denies, on direct examination, smelling or observing any marijuana on the premises. Such elicited testimony, while possibly prejudicial, does not rise to a level inadmissible under Rule 403. To that extent, plaintiffs’ motion is denied. Otherwise, defendants may not inquire about any plaintiff’s familiarity with marijuana.3 (H) Plaintiffs move to preclude defendants (H) Given that defendants do not intend to from introducing any evidence suggesting offer such proof, see Defs.’ Opp’n at 10, plaintiffs have any gang affiliation. Pls.’ plaintiffs’ motion is denied as moot.
Mem. at 28–30. Defendants do, however, intend to introduce evidence that the house in question was being used as a gang house to give context to the reason for the raid and certain precautions the officers took. See id. Importantly, in the course of offering such proof, defendants may not attempt to tie any plaintiff to a gang or argue that the evidence establishes their gang membership. Mere presence at a gang location does not make the
person present a gang member. (I) Plaintiffs move to preclude defendants (I) As defendants do not intend to introduce from eliciting testimony about the defendants’ evidence or elicit testimony about defendants’ military service, community service, civic military service, community service, civic service or commendations. Pls.’ Mem. at 30– service or commendations, Defs.’ Opp’n at 2, 31. plaintiffs’ motion is denied as moot.
3 However, if such testimony is elicited, plaintiffs may, at trial, propose, for the Court’s consideration, a limiting instruction to mitigate any perceived risk that the jury could conflate plaintiffs’ familiarity with marijuana with an objective, ex ante assessment of probable cause. II. Defendants’ Pretrial Motion and Motion in Limine Request Ruling (A) Although included in their motions in (A) The dismissal of plaintiffs’ fair trial and limine, defendants first move to dismiss malicious prosecution claims is mandated by
plaintiffs’ claims for malicious prosecution McDonough. As this Court recently held in and denial of a right to fair trial in light of the the context of an adjournment in Second Circuit’s holding in Lanning v. City of contemplation of dismissal (“ACD”): Glens Falls, 908 F.3d 19 (2d Cir. 2018) and In light of McDonough . . . the nature of a fair trial claim must the Supreme Court’s holding in McDonough be scrutinized at its outset. Undoubtedly, as the Supreme v. Smith, 139 S. Ct. 2149, 204 L. Ed. 2d 506 Court recognized, certain categories of fair trial claims (2019).4 Dkt. 148, Defs.’ Mem., at 10–15. do not challenge probable cause in a manner threatening the validity of any conviction or sentence. But criminal defendants may no longer aim their axes, by civil lawsuit, at the trunk of ongoing criminal proceedings, for such actions risk collaterally felling them. With this in mind, and with recognition that, in the absence of an ongoing prosecution, the traditional reach of the Heck [v. Humphrey] rule [prohibiting collateral attack of an outstanding criminal judgment] does not squarely implicate ACDs, McDonough, still, by the force of its reasoning, compels revisiting the effect of an acceptance of an ACD on one’s later ability
4 The Court, in its discretion, will consider defendants’ motion, which, ordinarily, would be untimely. to bring certain fabricated- evidence fair trial claims. Miller v. Terrillion, — F. Supp. 3d —, No. 16-cv-52 (ENV) (RLM), 2020 WL 549356, at *6 (E.D.N.Y. Jan. 30, 2020) (internal citation omitted). As a result, the Court held that a plaintiff is barred from bringing a fair trial claim “[that] targets the very evidence that would have otherwise been shielded from collateral attack,” and “the success of which
would necessarily undermine the validity of a prosecution.” Id. at *6 (citing Lanning, 908 F.3d at 26). Here, plaintiffs’ criminal prosecutions were dismissed on the Assistant District Attorney’s motions, rather than upon the acceptance of ACDs. Nevertheless, plaintiffs attack the very foundation of the prosecutions against them by alleging “it is undisputed that the plaintiffs—other than Nelson, Hippolyte, and Jeanty—were seized,
jailed, and prosecuted as a result of the charges that flowed from [the allegedly misleading information forwarded to prosecutors].” Pls.’ Opp’n at 13. Because, as discussed above, the prosecutions against them were not terminated favorably, they cannot now bring a fair trial claim based upon allegedly fabricated evidence. Defendants’ motion, consequently, is granted.5
(B) Defendants move to preclude plaintiffs (B) Defendants’ motion is granted to the from referring to defendants’ attorneys as city extent that plaintiffs may not refer to defense attorneys. Defs.’ Mem. at 15–16. counsel as “City Attorneys.” However, to maintain a level playing field, the jury will be instructed once, at the beginning of trial, that “Defendants are represented by attorneys from the Office of the New York City Corporation Counsel because they are members of the New York City Police
Department, which is an agency of the City of New York.” See Jean-Laurent, 840 F. Supp.
5 In Gondola v. City of New York, No. 16-cv-369 (AMD) (SJB), 2020 WL 1433874, at *3 n.5, *4 (E.D.N.Y. Mar. 24, 2020), the district court cited favorably to the reasoning in Miller to discuss fair trial claims in the identical posture as here. See also Daniels v. Taylor, No. 18-cv-3717 (RA), 2020 WL 1165836, at *5–6 (S.D.N.Y. Mar. 11, 2020) (holding that, in light of McDonough, an ACD bars fair trial claims based on fabrication of evidence). The Miller reasoning, however, was rejected in Simon v. City of New York, No. 16-cv-1017 (NGG) (RML), 2020 WL 1323114, at *5 (E.D.N.Y. Mar. 19, 2020), with the district court criticizing the reasoning as eliminating the distinction between fair trial and malicious prosecution claims. Respectfully, the issue is not whether Miller’s reasoning erodes or even eliminates the distinction between such claims, it is whether McDonough compels a plaintiff pleading a fair trial claim to show that the prosecution ended in his favor on the question of guilt or innocence. McDonough does compel such pleading, and plaintiffs here fail to do so. 2d at 550; Nnodimele v. Derienzo, No. 13-cv- 3461 (ARR) (RLM), 2016 WL 3561708, at *3 (E.D.N.Y. June 27, 2016). (C) Defendants move to preclude plaintiffs (C) Defendants’ motion is granted to the
from offering into evidence or suggesting to extent plaintiffs will not be permitted to refer the jury that the city may indemnify to or suggest the possibility that the City will defendants. Defs.’ Mem. at 16–18. indemnify defendants. If, however, any defendant opens the door by offering argument or evidence of his limited financial capacity, plaintiffs may move for reconsideration of this ruling. See Anderson v. Aparicio, 25 F. Supp. 3d 303, 314 (E.D.N.Y. 2014), aff’d and remanded sub nom. Anderson v. Cty. of Suffolk, 621 F.
App’x 54 (2d Cir. 2015); cf. Provost v. City of Newburgh, 262 F.3d 146, 163–64 (2d Cir. 2001). (D) Defendants move to preclude plaintiffs (D) The motion is denied, but plaintiffs will from requesting a specific dollar amount from be allowed, and at that, solely in the context the jury. Defs.’ Mem. at 18–19. of closing argument, to make a statement as to what liability the evidence has established, what damages it has caused and to submit a specific dollar amount they contend is reasonable compensation for their loss. The Court will instruct the jury that statements by lawyers in closing are nothing more than argument. See Edwards v. City of New York,
No. 08-cv-2199 (TLM), 2011 WL 2748665, at *2 (E.D.N.Y. July 13, 2011); see also Lightfoot v. Union Carbide Corp., 110 F.3d 898, 912 (2d Cir. 1997). (E) Defendants move to preclude plaintiffs (E) Defendants are correct that the NYPD from mentioning or offering into evidence the rules and procedures set forth in the patrol NYPD police student guide, NYPD patrol guide do not establish constitutional guide, or other police department guidelines, standards, and violations of them cannot form trainings, and procedures, arguing any alleged the basis for a finding of liability. See Brown violations of such guidelines are either v. City of New York, 798 F.3d 94, 106 (2d Cir.
irrelevant or inadmissible under Rule 403. 2015); Cerbelli v. City of New York, No. 99- Defs.’ Mem. at 19–20. cv-6846 (ARR) (RML), 2008 WL 4449634, at *10 (E.D.N.Y. Oct. 1, 2008). Plaintiffs acknowledge this reality, but they argue that any such guidelines are helpful to understand the course of conduct of a reasonable officer under the circumstances. Pls.’ Opp’n at 15– 17. They also argue they intend to use such evidence to impeach a testifying defendant as to whether his conduct “would comport or conflict with NYPD rules and regulations.” Id. at 17. The Court agrees with plaintiffs that
evidence of “sound professional standards governing a defendant’s actions can be relevant and helpful.” Nnodimele v. Derienzo, No. 13-cv-3461 (ARR) (RLM), 2016 WL 3561708, at *14 (E.D.N.Y. June 27, 2016) (quoting Jimenez v. City of Chicago, 732 F.3d 710, 721 (7th Cir. 2013)). As a result, plaintiffs may use the NYPD procedure or patrol guidelines to impeach defendants, should they testify, but only to the extent that
any act or omission that is the subject of a testifying defendant’s account is contrary to NYPD rules, practices or procedures. The motion is otherwise granted. (F) Defendants move to preclude plaintiffs (F) Plaintiffs advise that they do not intend to from inquiring into the disciplinary history of introduce evidence that any of the defendants defendants or any non-party officer, or any engaged in other, similar misconduct other lawsuits against them. Defs.’ Mem. at 21–24. than conduct that speaks directly to veracity. See Pls.’ Opp’n at 17–18. Defendants’ motion, therefore, is denied as moot, but may be renewed at trial should plaintiffs seek to proffer any prior conduct of a defendant- witness, even should plaintiffs claim the
conduct speaks only to veracity and defendants have a good-faith basis to support an argument to the contrary. (G) Defendants seek to preclude plaintiffs (G) Plaintiffs do not intend to introduce from referencing allegations of misconduct evidence about unrelated events concerning against other police officials or events in the other police departments or officers. See Pls.’ news, or using inflammatory terms to describe Opp’n at 18–19. Accordingly, to that extent, police activity. They further seek to bar the motion is denied as moot. With respect to plaintiffs from using terminology such as defense concerns about the use of largely “testilying” and “blue wall of silence” as inflammatory statements by counsel,
highly prejudicial and inflammatory. Defs.’ including the terms referenced in the motion, Mem. at 25–26. such inflammatory language will not be used by either side. Obviously, any argument about credibility that is not inflammatory and is supported by the record is fair game. To that extent, the motion is granted. (H) Defendants seek to preclude plaintiffs (H) Based on representations by plaintiffs that from introducing evidence about dismissed they do not intend to offer evidence as to prior claims or settlement, plaintiffs’ Proposed settled claims, see Pls.’ Opp’n at 19–20, to Exhibit 22 (an intake form related to all that extent the motion is denied as moot. As arrestees, including those who have settled), for the exhibits, because plaintiffs intend to and plaintiffs’ Proposed Exhibit 38 (a form in redact both proposed exhibits to cure any which the District Attorney declined to issues relating to non-parties, see Pls’. Opp’n
prosecute proposed witness and former at 19–20, decision on their admissibility as plaintiff Dwayne Jones). Defs.’ Mem. at 26– redacted is reserved until their proffer. 27. (I) Defendants move to reserve their rights to (I)Denied. The time to file in limine motions file supplemental motions in limine. Defs.’ has long come and gone. To the extent that Mem. at 27. any party believes that a matter requires urgent consideration, they may file a pre- motion letter seeking the Court’s permission to file such a motion.
So Ordered. Dated: Brooklyn, New York May 1, 2020
/s/ Eric N. Vitaliano ERIC N. VITALIANO United States District Judge