Goode v. City of Southaven

• Decision Date: 07 March 2019
• Docket Number: NO. 3:17-CV-60-DMB-RP,3:17-CV-60-DMB-RP
• Parties: KELLI DENISE GOODE, Individually, and also as the Personal Representative of Troy Charlton Goode, Deceased, and as Mother, Natural Guardian, and Next Friend of R.G., a Minor, and also on behalf of all similarly situated persons PLAINTIFF v. THE CITY OF SOUTHAVEN, et al. DEFENDANTS
• Court: U.S. District Court — Northern District of Mississippi

KELLI DENISE GOODE, Individually, and also as the Personal Representativeof Troy Charlton Goode, Deceased, and as Mother, Natural Guardian, and Next Friendof R.G., a Minor, and also on behalf of all similarly situated persons PLAINTIFF v. THE CITY OF SOUTHAVEN, et al. DEFENDANTS

NO. 3:17-CV-60-DMB-RP

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI OXFORD DIVISION

March 7, 2019

ORDER

Before the Court is the motion in limine of the City of Southaven, Todd Baggett, Jeremy Bond, Tyler Price, Joel Rich, Jason Scallorn, Stacie J. Graham, Mike Mueller, William Painter, Jr., Bruce K. Sebring, Joseph Spence, and Richard A. Weatherford (collectively, the "Southaven defendants"). Doc. #533.

Relevant Procedural History

On June 7, 2018, the Southaven defendants filed the instant motion along with a supporting memorandum brief. Docs. #533, #534. The motion contains six subparts. Doc. #534 at 1-2. A week later, Kelli Denise Goode responded in opposition. Doc. #552.

Standard

"The purpose of a motion in limine is to allow the trial court to rule in advance of trial on the admissibility and relevance of certain forecasted evidence. Evidence should not be excluded in limine unless it is clearly inadmissible on all potential grounds." Harkness v. Bauhaus U.S.A., Inc., No. 3:13-CV-129, 2015 WL 631512, at *1 (N.D. Miss. Feb. 13, 2015) (quotation marks and citations omitted). Rulings on a motion in limine "are not binding on the trial judge, and the judge may always change his mind during the course of a trial." Ohler v. United States, 529 U.S. 753, 758 n.3 (2000).

Analysis

The Southaven defendants move to exclude at trial: (1) "Evidence that any other law enforcement or EMS agencies' policies recommend against the use of hog-tie or prone restraint"; (2) "Sections in Ron L. Crew's Law Enforcement Training materials copyrighted 2001-2006 relating to blanket unsupported statements connecting positional asphyxia to hog-tie restraint"; (3) "Opinion testimony from witness Charles Rogers relating to the conduct of Troy Goode during his encounter with police officers on Goodman Road"; (4) "Irrelevant and overly prejudicial photographs ..."; (5) "[The use of] the terms 'hogtie' and/or 'torture'"; and (6) "Certain testimony and/or opinions by Robert C. Krause ...." Doc. #534 at 1-2. Each exclusion moved for will be addressed in turn.

A. First Ground

The Southaven defendants move to prohibit Kelli from offering testimony through her police tactics expert, Darrell Coslin, or any other witness "of other law enforcement agencies' policies and procedures that recommend against the use of a hogtie or other prone restraint." Id. at 2. The Southaven defendants argue that because "the Fifth Circuit and courts nationwide have held that the use of the hogtie restraint or 4-point restraint is permissible to restrain a suspect who remains resistant after lower levels of restraint are attempted," the fact that "other departments may not support the use of the hogtie restraint ... has no relevance to the use of the 4-point restraint by Southaven officers in this case." Id. at 5. Although the Southaven defendants do not cite any Federal Rule of Evidence in support of their argument, it suggests that the challenged evidence is not relevant under Federal Rules of Evidence 401 and 402 and that, even if relevant, the evidenceshould be excluded under Federal Rule of Evidence 403—or pursuant to the Court's inherent authority—given its danger of confusing or misleading the jury. Id.

In response, Kelli contends that the instant motion should not be considered on the merits because it "seeks to circumvent the deadline for Daubert motions by mischaracterizing [the motion as] a Motion in Limine." Doc. #552 at 2. Moreover, Kelli argues that the instant motion would fail even if considered on the merits because it selectively cites Fifth Circuit caselaw. Id. at 3.

The Case Management Order set a January 23, 2018, deadline for submitting Daubert challenges. Doc. #389. As Kelli argues, other courts have determined that challenges to an expert's use of police policies implicates Rule 702 and Daubert. See Clayton Cty. v. Segrest, 775 S.E.2d 579, 584 (Ga. Ct. App. 2015) (applying state analogue to Daubert to determine the admissibility of police policies relied on by expert witnesses). However, even if this were not an untimely Daubert motion, it would nevertheless fail on the merits.

Federal Rule of Evidence 401 provides that evidence is relevant if it has any tendency to make a fact of consequence in determining the action more or less probable than it would be without the evidence. "Irrelevant evidence is not admissible." Fed. R. Evid. 402. Federal Rule of Evidence 403 provides that "[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." The rule that a "district court is accorded a wide discretion in determining the admissibility of evidence ... is particularly true with respect to Rule 403 since it requires...balancing of probative value and prejudice, potentially to exclude as unduly prejudicial some evidence that already has been found to be factually relevant." Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384 (2008).

"The Court has broad discretion to manage the conduct of a trial and the evidence presented by the parties—both under the Federal Rules of Evidence and as part of the Court's inherent authority." Apple Inc. v. Samsung Elecs. Co., No. 11-CV-01846, 2018 WL 1586276, at *18 (N.D. Cal. Apr. 2, 2018). This challenge implicates two inquiries: Rule 403 regarding testimony and the Court's inherent authority regarding attorney conduct. See Navellier v. Sletten, 262 F.3d 923, 941-42 (9th Cir. 2001) (limits on parties' presentation of evidence within "the broad discretion that the district court had to manage the trial"); Anderson v. Ford Motor Co., No. 2:06-CV-741, 2014 WL 4655289, at *1 (D. Utah Sept. 16, 2014) (prohibiting plaintiff from using several terms to describe the defendant pursuant to Rule 403). As a threshold matter, an attorney's characterization or description of a restraint is not evidence, so it is not clear that Rule 403 would support excluding the use of the term "hogtie." To the extent that Rule 403—or, alternatively, the Court's inherent authority—might apply to this issue, Southaven has not briefed an argument for the Court to rule on. See Dennis v. ESS Support Servs. Worldwide, No. CV 15-690, 2016 WL 1408580, at *2 (E.D. La. Apr. 11, 2016) ("While brevity is typically a virtue, the Court will not address the merits of defendants' Rule 403 challenge, without a more detailed description of Rule 403's applicability to specific aspects of [the challenged witness'] report and testimony."). Thus, the Court cannot grant this motion pursuant to either Rule 403 or its inherent authority due to inadequate briefing.

In support of its motions, the Southaven defendants do cite to cases in which police officers who had placed a detainee in a four-point restraint were granted qualified immunity from claims brought under § 1983. "Claims based on violations of police procedure, however, are not actionable under § 1983." Medina v. Cram, 252 F.3d 1124, 1133 (10th. Cir. 2001). Thus, the Southaven defendants cite a series of cases addressing individual officer liability that are not on-point regarding whether a municipality is liable under Monell¹ for its policies or procedures, which are relevant as to Sotuhaven's Monell liability. Any danger under Rule 403 that such evidence could confuse or mislead the officers with regard to the liability of individual officers can be cured through a limiting instruction. See United States v. Guerra, 402 F. App'x 973, 975 (5th Cir. 2010) ("the risk of unfair prejudice is substantially lowered by a district court's limiting instruction"). For these reasons, the Southaven defendants' first ground is denied.

B. Second Ground

The Southaven defendants move to exclude the bolded portion of Police Subject Control - Basic Manual, excerpted below, that is written by Ron L. Crew and used by the Mississippi Law Enforcement Training Academy, which trains Mississippi police officers including those from Southaven:²

Cautions. There are two main areas of concern in the application of Handcuffs. One is "Positional Asphyxia". When a violator has been arrested, and handcuffed in a face-down position, Officers must get the suspect up to at least a "seated" position as soon as possible. People who remain on their stomach for varying periods of time will suffocate themselves due to their own body weight. Getting large people up is as simple as having them cross one leg and pushing that same side shoulder forward while directing them to stand.

Doc. #533-1 at 5 (emphasis added). The Southaven defendants contend that the bolded statement is generalized, unsupported, and—standing alone—inaccurate. Id. at 6. Moreover, they contend that there is overwhelming evidence contravening the assessment that "[p]eople who remain ontheir stomach for varying periods of time will suffocate themselves due to their own body weight" given "testimony from experts on both sides of this case that establishes that being restrained on your stomach for a long period of time will not cause suffocation." Id.

In response, Kelli submits that the training manual is necessary to meet her "burden to demonstrate deficient training for liability to attach to the governmental entity" and thus whether "police officers were not instructed on the hazards of hogtying for an extended period in a prone position is highly relevant." Doc. #552 at 5. Kelli also argues that it would be "patently ridiculous" to allow Southaven to put on evidence that their officers followed official policy and training while "exclud[ing] a portion of the training...