United States District Court, D. Colorado
ORDER ON DEFENDANTS' MOTION IN LIMINE
WILLIAM J. MARTÍNEZ, District Judge.
Plaintiff Robert Kirkland ("Plaintiff") has brought this civil action against Defendant Deputies James O'Brien, Brian D. Jones, Rafael Avina, and Henry E. Trujillo (collectively "Defendants"), alleging constitutional violations under 42 U.S.C. § 1983. (ECF No. 1.) The trial of this action is scheduled to commence on October 20, 2014, with the Final Trial Preparation Conference set for October 14, 2014. (ECF Nos. 75, 88.)
This matter is before the Court on Defendants' Motion in Limine ("Motion"). (ECF No. 84.) For the reasons set forth below, the Motion is granted in part and denied in part.
Defendants' Motion seeks to preclude the following evidence from being admitted at trial: (1) evidence of prior allegations or incidents of the use of excessive force by Defendants and their witnesses; (2) evidence related to computation of damages; (3) evidence related to Plaintiff's self-inflicted injuries; and (4) evidence of a judge's finding in another matter that Defendant O'Brien's testimony was not credible. (ECF No. 84 at 1-7.) The Court will address each category of evidence in turn.
A. Prior Allegations or Incidents of Excessive Force
Defendants move to exclude evidence of several prior incidents or allegations of the use of excessive force by Defendants O'Brien, Jones, and Avina, and potential witnesses Deputy Sliz and Sergeant Johnson. (ECF No. 84 at 1-2.) Defendants contend that Plaintiff will seek to introduce such evidence to prove these individuals' action in accordance with a character for committing excessive force, which is excludable under Federal Rule of Evidence 404(b). ( Id. )
Rule 404(b) prohibits the admission of evidence of a crime or wrong to prove a person's character in order to show that he acted in accordance with that character on a particular occasion. Fed.R.Evid. 404(b)(1). However, the evidence may be admissible under Rule 404(b)(2) for another purpose, such as motive, opportunity, plan, knowledge, or absence of mistake. For evidence of a prior use of excessive force to be admissible against a defendant in a § 1983 case, it must be offered for a proper purpose. Chavez v. City of Albuquerque, 402 F.3d 1039, 1046 (10th Cir. 2005) (holding that such evidence must also be relevant, must pass the Rule 403 balancing test, and must be accompanied by a limiting instruction upon request).
As to the two potential witnesses who are not defendants, Deputy Sliz and Sergeant Johnson, the Court finds Rule 404(b) inapplicable to the evidence of their alleged prior uses of excessive force. Because Plaintiff has not alleged that either of these witnesses participated in the use of excessive force here, there is no reason that Plaintiff would introduce evidence of such prior acts as character evidence in order to show the witnesses' action in conformity with that character on another particular occasion. Accordingly, as to the alleged prior uses of excessive force by Deputy Sliz and Sergeant Johnson, Rule 404(b) does not exclude that evidence, and Defendants have made no showing that it is excludable on any other basis. However, if Plaintiff seeks to introduce such evidence, Plaintiff must show that it is relevant and not unfairly prejudicial. See Fed.R.Evid. 401, 403.
As to the evidence of the alleged prior uses of excessive force by Defendants O'Brien, Jones, and Avina, the Court finds that Rule 404(b) applies to exclude the evidence if it is used for character purposes. Therefore, Plaintiff must show that the evidence will be used for another purpose in order for it to be admissible. Fed.R.Evid. 404(b)(2). Plaintiff argues that the evidence is admissible for several purposes: (1) to show Defendants' state of mind; (2) to rebut positive character evidence; (3) to rebut testimony that no wrong was committed; and (4) to show reputation and opinion.
The Court finds none of these purposes applicable to the instant case. First, it is well settled that an officer's state of mind is irrelevant to a claim of excessive force, because the claim is assessed under an objective standard. See Tanberg v. Sholtis, 401 F.3d 1151, 1168 (10th Cir. 2005) ("an officer's personal motivations in using a particular degree of force are irrelevant"). Second, any positive character evidence that could be rebutted by the evidence of these prior acts, e.g., a character for peacefulness, would be inadmissible under Rule 404(a), and Plaintiff has not explained any other theory of character rebuttal. Third, there is no indication that this evidence will be relevant to attack Defendants' credibility, as Defendants do not now deny that the incidents occurred and there is no reason to believe they would do so on the witness stand. Absent such a denial, the evidence of prior acts of excessive force do not bear on truthfulness, and thus Rule 608(b) does not apply. Finally, Plaintiff cites Rule 404(b) in support of his reference to reputation and opinion testimony, but those types of evidence are not among the enumerated permissible uses in Rule 404(b). Rather, evidence of a reputation for untruthfulness may be admissible in order to attack the witness's credibility under Rule 608(a). As the prior acts of excessive force do not bear on truthfulness, they are not admissible as reputation or opinion evidence.
The Court finds that Plaintiff has failed to show that the prior incidents of excessive force by Defendants O'Brien, Jones, and Avina are admissible for any permissible purpose under Rule 404(b)(2). Accordingly, the Motion is granted as to the evidence of those incidents committed by the Defendants, and denied as to potential witnesses Deputy Sliz and Sergeant Johnson.
B. Computation of Damages
Defendants argue that all evidence related to the computation of Plaintiff's damages should be excluded because Plaintiff has failed to provide a specific computation despite Defendants' specific request for it during discovery. (ECF No. 84 at 2-4.) Defendants admit that Plaintiff ultimately sent Defendants evidence of medical damages, in the form of hospital billing records, but contend that Plaintiff's failure to specifically compute the damages caused by Defendants constitutes a discovery violation under Federal Rule of Civil Procedure 26(a)(1)(A)(iii), and that the evidence should therefore be excluded. ( Id. ) However, Defendants do not explain how they have been deprived of the ability to prepare ...