Jonas v. Bd. Of Comm'rs Of Luna County, No. CIV 09-0091 JB/WPL.

CourtUnited States District Courts. 10th Circuit. District of New Mexico
Writing for the CourtJAMES O. BROWNING
Citation699 F.Supp.2d 1284
PartiesJoyce JONAS, Plaintiff,v.BOARD OF COMMISSIONERS OF LUNA COUNTY, Luna County Sheriff's Office, Deputy Sheriff Donnie Daniels, and Deputy Sheriff Don Hoolan, Defendants.
Docket NumberNo. CIV 09-0091 JB/WPL.
Decision Date10 March 2010

699 F.Supp.2d 1284

Joyce JONAS, Plaintiff,
v.
BOARD OF COMMISSIONERS OF LUNA COUNTY, Luna County Sheriff's Office, Deputy Sheriff Donnie Daniels, and Deputy Sheriff Don Hoolan, Defendants.

No. CIV 09-0091 JB/WPL.

United States District Court,
D. New Mexico.

March 10, 2010.


699 F.Supp.2d 1285

COPYRIGHT MATERIAL OMITTED

699 F.Supp.2d 1286

COPYRIGHT MATERIAL OMITTED

699 F.Supp.2d 1287
Michael E. Mozes, Albuquerque, NM, for Plaintiff.

Erika E. Anderson, Robles, Rael & Anaya, P.C., Albuquerque, NM, for Defendants.
MEMORANDUM OPINION AND ORDER
JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the County Defendants' Motion in Limine

699 F.Supp.2d 1288
No. I: the Exclusion of Evidence at Trial Regarding Defendant Deputies' Use of Force in Prior and Subsequent, Unrelated Incidents, Police Standard Operating Procedures, Training and Less Intrusive Alternatives, filed February 25, 2010 (Doc. 55). The Court held a hearing on March 5, 2010. The primary issue is whether the Court should exclude, pre-trial, all policies found in the Manual of Operating Procedures for the Luna County Sheriff's Department. Plaintiff Joyce Jonas largely consented to the granting of this motion. With respect to the remaining issue, because the Court finds that the United States Court of Appeals for the Tenth Circuit has created a high burden to prove admissibility of standard operating procedures, and Jonas has failed to meet that burden, the Court will grant the Defendants' motion in limine.
FACTUAL BACKGROUND

Jonas would like to present as evidence portions of a Manual of Operating Procedures written by Sheriff Raymond Cobos for the Luna County Sheriff's Department. The provisions she seeks to proffer that are relevant to this motion are these:

MISSION STATEMENT
It is the mission of the Luna County Sheriff's Department to provide the highest quality law enforcement protection to all citizens of Luna County and their property and the promotion of the health and well-being of the Luna County community through coordination with all other like-minded citizen groups and governmental agencies.
* * * *
N. It is a Deputy's duty to see that the laws are enforced and that peace and order are maintained.
O. Patrol Deputies shall know and understand the extent and limits of their authority, including the use of necessary and deadly force. They shall know what their jurisdiction is and know the jurisdiction and role of other law enforcement agencies, prosecutors and the court systems. Such officers are expected to be familiar with proper patrol procedures and safe vehicle operations. They shall know, understand, and use correct radio procedures.
P. Patrol Deputies shall be familiar with criminal law, rules of evidence and criminal court procedures[.] They shall be able to conduct preliminary criminal investigations which include protecting the scene of a crime, preservation of evidence, chain of custody, initial interviews and report writing.
* * * *
R. Patrol Deputies shall be familiar with and able to prepare criminal complaints, field contact notes, daily logs, arrest reports, offense-incident reports, accident reports, disposition reports and all other reports required by the Department in the performance of their duties.
* * * *
8 KNOWLEDGE OF LAWS AND REGULATIONS
Every member shall establish and maintain a working knowledge of all laws and ordinances in force in the County. All members shall be required to maintain a working knowledge....
* * * *
10 OBEDIENCE TO LAWS AND REGULATIONS
Members shall observe and obey all laws, ordinances and all rules and regulations of the Sheriff's Department as well as the unit to which assigned.

R. Cobos, Manual of Operation Procedures: Luna County Sheriff's Department (Jan.2006).
699 F.Supp.2d 1289
PROCEDURAL BACKGROUND

On January 28, 2009, Jonas filed a complaint against the Board of Commissioners of Luna County, the Luna County Sheriff's Office, and two Luna County Sheriff's Office deputies, based on alleged actions by Defendants Donnie Daniels and Don Hoolan-the two named deputies. The Complaint asserted the following claims: (i) unlawful seizure in violation of the Fourth Amendment of the Constitution of the United States; (ii) use of excessive force in violation of the Fourth Amendment; (iii) false imprisonment in violation of the Fourteenth Amendment; (iv) violation of the Fifth Amendment; (v) negligent supervision and training; (vi) violation of Jonas' liberty interests and right to substantive due process; (vii) malicious abuse of process; and (viii) violations of the New Mexico Tort Claims Act. See Complaint for Damages From Violations of Civil and Constitutional Rights, the New Mexico Tort Claims Act, and New Mexico Common Law, filed January 28, 2009 (Doc. 1). Since that time, several of the claims have dropped out, but the claims about which this motion seems most relevant-unlawful seizure and excessive force-are still a part of the case. See Unopposed Motion for Order Dismissing Certain Claims, filed February 22, 2010 (Doc. 49); Stipulated Order Dismissing Certain Claims, filed February 26, 2010 (Doc. 59); Unopposed Motion for Order Dismissing Certain Claim, filed March 3, 2010 (Doc. 64).

The Defendants filed this motion on February 25, 2010. Jonas did not file a response. At the hearing, Michael Mozes, Jonas' counsel, consented to the Court granting the motion in large part. See Transcript of Hearing at 8:18-9:21 (taken March 5, 2010)(“Tr.”)(Mozes).1 The only evidence to which Jonas opposes the motion are passages from the Manual of Operating Procedures for the Luna County Sheriff's Department. Mr. Mozes argued that, because those passages do not set forth policies or procedures relating to the use of force, the general prohibition on introducing standard operating procedures (“SOPs”) into evidence did not apply. See Tr. at 12:23-13:9 (Mozes). Ms. Anderson disagreed, arguing that the prohibition on SOP evidence applied equally to all SOPs. See Tr. at 10:3-12:16 (Court, Anderson). She stated that the Defendants would not agree to admission of the provisions that Mr. Mozes provided, but stated that she believed that Jonas would be able to get substantially the same evidence in the form of testimony from Daniels and Hoolan. See Tr. at 10:13-17 (Anderson)(“[W]e do not want to agree to putting these in. I think Mr. Mozes can get this testimony into evidence in trial by just ask the deputy sheriffs on witness stand, ‘as an officer, isn't it your duty to uphold the laws of the state of New Mexico?’ That kind of thing....”). The Court agreed to research the issue whether the SOPs unrelated to excessive use of force should also be excluded as evidence in a civil-rights action such as this one.

RULE 404 OF THE FEDERAL RULES OF EVIDENCE AND PRIOR USE OF FORCE

Rule 404(a) provides that “[e]vidence of a person's character or trait of character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion.” Fed.R.Evid. 404(a). “This rule is necessary because of the high degree of prejudice that inheres in character evidence. In most instances, [the Tenth Circuit is] unwilling

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to permit a jury to infer that an individual performed the alleged acts based on a particular character trait.” Perrin v. Anderson, 784 F.2d 1040, 1044 (10th Cir.1986) (citing rule 404 advisory notes).

Moreover, rule 404(b) states that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” Fed.R.Evid. 404(b). To admit other crimes, wrongs, or acts under rule 404(b), the proponent must provide a clear and logical connection between the alleged earlier offense or misconduct, and the case being tried. See United States v. Hogue, 827 F.2d 660, 662 (10th Cir.1987) (discussing the inadmissibility of evidence of prior or subsequent bad acts to show action in conformity therewith). A party introducing 404(b) evidence must show that: (i) the evidence is introduced for a proper purpose; (ii) the evidence is relevant; (iii) the evidence has probative value that is not substantially outweighed by the potential for unfair prejudice; and (iv) the party introducing the evidence must precisely articulate the purpose for which the evidence is offered. See United States v. Hardwell, 80 F.3d 1471, 1488 (10th Cir.1996) (citing Huddleston v. United States, 485 U.S. 681, 691-92, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988)).

The Tenth Circuit has found that evidence of prior use of force fails to satisfy the four-factor test required to introduce 404(b) evidence. See Chavez v. City of Albuquerque, 402 F.3d 1039, 1046 (10th Cir.2005) (holding that plaintiff failed to satisfy the first factor-that evidence of prior use of force was introduced for a proper purpose); Tanberg v. Sholtis, 401 F.3d 1151, 1167-68 (10th Cir.2005) (holding that plaintiffs failed to satisfy the second factor-that evidence of past use of force was relevant). In Chavez v. City of Albuquerque, the Tenth Circuit examined the admissibility of prior decisions of defendant Andrew Lehocky, a K-9 officer, to use his police service dog in cases which were unrelated to the plaintiff's claim. See 402 F.3d at 1046. The Tenth Circuit affirmed the decision of the Honorable William P. Johnson, United States District Judge for the District of New Mexico, to exclude evidence of “other incidents in which arrestees claimed [the defendant] used excessive force in deploying [the police service dog] Bart.” Id. at 1046. The plaintiff in that case had argued that these other incidents demonstrated absence of mistake as well as modus operandi and contended that the district court should admit the prior incidents under rule 404(b). See 402 F.3d at 1046. Concluding that the evidence was not offered for a proper purpose, and in upholding the district court's decision to exclude these prior incidents, the Tenth Circuit stated and explained that:

Although
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