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Cox v. Wilson

United States District Court, D. Colorado

May 2, 2017

DON WILSON, in his individual capacity Defendant.


          William J. Martinez, United States District Judge

         Plaintiff Cody William Cox (“Plaintiff”) brought this action under 42 U.S.C. § 1983 against Defendant Don Wilson (“Defendant”), based on injuries Plaintiff sustained during a police use-of-force incident. (ECF No. 1 at 1-3.) Following an eight-day jury trial commencing on December 6, 2016, the jury found in Defendant's favor. (ECF Nos. 170, 186, 196.) On December 16, 2016, the Court entered Final Judgment in favor of Defendant. (ECF No. 198.) On February 8, 2017, after a hearing, the Clerk of Court taxed costs against Plaintiff in the amount of $11, 359.24. (ECF No. 205.)

         Now before the Court is Plaintiff's Motion for New Trial (“Motion”). (ECF No. 201.) For the reasons set forth below, Plaintiff's Motion is granted.

         I. BACKGROUND

         A. Underlying Facts

         Defendant was, at all relevant times, a Deputy Sheriff with the Clear Creek County, Colorado Sheriff's Office. (ECF No. 1 at 2.) On Friday, January 31, 2014, Defendant's partner, Deputy Kevin Klaus, received a report of a silver pickup truck that was involved in a hit-and-run accident going west on I-70 near Georgetown, Colo. (ECF No. 62-2 ¶ 2.) Deputy Klaus pursued the pickup truck and reported that the vehicle was failing to yield to him. (ECF No. 62-3 at 1.)

         Defendant responded to Deputy Klaus's report and began pursuing Plaintiff's silver pickup truck. (Id.) Defendant caught up with Deputy Klaus and the pickup truck near mile marker 230, where they were “nearly stopped” in “stop-and-go” traffic. (ECF No. 62-4 at 8-9.) Eventually Defendant was able to pull alongside Plaintiff near mile marker 228.5, such that Defendant's patrol vehicle was directly to the right of Plaintiff's truck and Deputy Klaus's vehicle was directly behind Plaintiff. (ECF No. 62-3 at 2.)

         During trial, Defendant testified that he believed Plaintiff was hitting the vehicle directly in front of him in a “rolling forward” motion. (ECF No. 201-7 at 37.) Defendant testified that he believed it was then necessary to exit his patrol vehicle and open Plaintiff's “door, get inside, and pull the keys out of the ignition [to] stop this incident.” (Id. at 37-38.)

         According to Defendant's trial testimony, Defendant stepped out of his patrol vehicle with his gun drawn, and as he approached the right front wheel of Plaintiff's vehicle, the vehicle came “to the right, towards [Defendant], and forward.” (Id. at 41.) Defendant then testified, “I fired my weapon one time at the driver as [Plaintiff's] window came in line with me” and that he did so in order “to stop [Plaintiff] from crushing [him] between the two cars.” (Id.)

         Plaintiff maintains that he “remained in his driver's seat during the entirety of the incident, and made no threatening or aggressive move toward” Defendant prior to the shooting. (ECF No. 201 at 7.) To support Plaintiff position he points to the testimony of Ms. Kincaid, the driver immediately situated in front of Plaintiff's vehicle who witnessed the incident. (Id. at 6-9.) Ms. Kincaid testified that she “did not observe [Plaintiff's] vehicle make any sudden or abrupt movements immediately before [Defendant] discharged his firearm.” (Id. at 7 (citing ECF No. 201-2 at 12).) Further, according to the “photographs taken of the scene of the shooting” “the left front and left rear wheels of the vehicle were parallel to the fog line marking the left margin of the westbound lanes, such that the vehicle was facing parallel in the lane.” (ECF No. 201 at 8 (citing Plaintiff's Trial Exhibits 1-16).) Thus, Plaintiff contends that because “the front wheels of his vehicle were straight” Defendants testimony that Plaintiff's vehicle moved “forward and to the right” was false. (ECF No. 201 at 8-9.)

         Plaintiff, age thirty-six on the day of incident, was shot in the lower right neck area, and as a result, he “suffered a compound fracture of the cervical spine, which has resulted in permanent” “incomplete quadriplegia.” (ECF No. 1 at 3; ECF No. 161-1 at 1.)

         B. Claim Presented

         At trial, Plaintiff asserted that Defendant used excessive force when he shot Plaintiff, in violation of Plaintiff's Fourth Amendment right to be free from unreasonable seizure. (ECF No. 187 at 17.) Claims of excessive force by law enforcement officers are analyzed under the Fourth Amendment's “objective reasonableness” standard. Graham v. Connor, 490 U.S. 386, 388 (1989). “The question is whether the officer['s] actions are ‘objectively reasonable' in light of the facts and circumstances [confronting the officer], without regard to [the officer's] underlying intent or motivation.” Id. at 397.

         Thus, any evidence regarding Plaintiff, of which Defendant was unaware at the time of his conduct, was legally irrelevant to the jury's evaluation of the reasonableness of Defendant's conduct. Accordingly, the Court instructed the jury to “consider all the relevant facts and circumstances Defendant reasonably believed to be true at the time of the encounter.” (ECF No. 187 at 22.) Critically, for resolution of the instant Motion and as discussed at length below, at no point prior to shooting Mr. Cox did Defendant have any knowledge whatsoever regarding the driver he was pursuing and thus, ipso facto, did he have any knowledge of Plaintiff's history of law enforcement contacts.


         Plaintiff brings his motion seeking a new trial under Rule 59(a)(1), which permits the Court to order a new trial on all or some of the issues “for any reason for which a new trial has heretofore been granted in an action at law in federal court.” Fed.R.Civ.P. 59(a)(1)(A). The Court may grant such a motion where “the ‘claimed error substantially and adversely' affected the party's rights.” Henning v. Union Pac. R.R. Co., 530 F.3d 1206, 1217 (10th Cir. 2008) (quoting Sanjuan v. IBP, Inc., 160 F.3d 1291, 1297 (10th Cir. 1998)). Plaintiff contends that a new trial is warranted both because: (1) the verdict “was contrary to the manifest weight of the evidence introduced at trial, ” and (2) because “improper conduct by defense counsel at trial compromised [his] right to a fair trial.” (ECF No. 201 at 2, 10.) Because the Court concludes that clear and repeated misconduct during the trial on the part of Attorney Leslie Schluter, lead counsel for Defendant, requires the granting of a new trial to Plaintiff, the Court does not address Plaintiff's argument that the jury's verdict was against the manifest weight of the evidence.

         District courts may order a new trial when the moving party shows that it was prejudiced by attorney misconduct during trial. Abuan v. Level 3 Communications, Inc., 353 F.3d 1158, 1175 (10th Cir. 2003); see also Ryder v. City of Topeka, 814 F.2d 1412, 1426 (10th Cir. 1987). Additionally, “[t]he decision on whether counsel's misconduct at trial was so egregious as to require retrial is left largely to the discretion of the district court.” Abuan, 353 F.3d at 1175; Angelo v. Armstrong World Indus. Inc., 11 F.3d 957, 962 (10th Cir. 1993); see also Spahr v. Ferber Resorts, LLC, 419 Fed.App'x 796, 805 (10th Cir. 2011) (“[T]he district judge [] is usually in the best position to determine any prejudice and the need for a new trial.”); see also Whittenberg v. Werner Enterprises Inc., 561 F.3d 1122, 1128 (10th Cir. 2009) (noting that the trial judge “is uniquely positioned to assess the prejudicial effect of an improper argument in the context of the overall trial”). The Court remains mindful, however, that it should not grant a new trial “simply as a punitive measure to punish the misconduct of counsel” or because “‘the losing party can probably present a better case on another trial.'” Ryder, 814 F.2d at 1425-26 (quoting 6A J. Moore, Moore's Federal Practice § 59.08(3) (2d ed., 1986)).

         Further, “[i]f a timely objection [to the misconduct] has been made, a failure to move for a mistrial does not preclude a later motion for new trial based on the misconduct.” 12-59 J. Moore, Moore's Federal Practice § 59.13(c) (3d ed., 2017) (citing Park West Galleries, Inc. v. Hochman, 692 F.3d 539, 547-48 (6th Cir. 2012) (proper objection to known misconduct at trial is sufficient, without motion for mistrial, to preserve right to later seek new trial under Rule 59) and Harrison v. Purdy Bros. Trucking Co., 312 F.3d 346, 353 (8th Cir. 2002) (“A party need not object to an offensive argument and move for a mistrial in order to preserve the right to bring a motion for a new trial.”)).

         In order to show that his substantial rights were adversely affected, Plaintiff must show that the alleged misconduct “substantially influence[d] the verdict or denie[d him] a fair trial.” Hoops v. Watermelon City Trucking, Inc., 846 F.2d 637, 641 (10th Cir. 1988); see generally 11 Charles Alan Wright et al., Federal Practice & Procedure § 2809 (3d ed., Apr. 2017 update). Moreover, “misconduct by trial counsel [will generally] result in a new trial if the flavor of misconduct sufficiently permeate[s] an entire proceeding to provide conviction that the jury was influenced by ...

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