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Estate of Strong v. Schlenker

United States District Court, D. Colorado

July 24, 2019

ESTATE OF JAMES STRONG, JR., Plaintiff,
v.
JASON SCHLENKER, Defendant.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTIONS IN LIMINE

          William J. Martínez, United States District Judge.

         Plaintiff Estate of James Strong, Jr., (“Plaintiff”) brings this civil rights action against Defendant Jason Schlenker (“Defendant”) under 42 U.S.C. § 1983 for use of excessive force in violation of the Fourth Amendment arising out of the shooting death of James Strong, Jr., in his home during the execution of a no-knock arrest warrant on May 28, 2015. (ECF No. 33 ¶¶ 61-72.) The Court has explained the relevant factual and legal background of this case in detail in other recent Orders (see ECF Nos. 121 & 156), and familiarity with that background is presumed.

         Now before the Court is Defendant's Motion in Limine (“Motion”). (ECF No. 130.) For the reasons explained below, the Motion is granted in part, denied in part, and deferred until trial in part.

         I. ANALYSIS

         A motion in limine allows a court to decide evidentiary issues in advance of trial to avoid delay and ensure “an evenhanded and expeditious trial.” Dry Clean Super Ctr., Inc. v. Kwik Indus., Inc., 2012 WL 503510, at *4 (D. Colo. Feb. 15, 2012). A court will generally not grant a motion in limine unless the moving party meets its burden of showing that the evidence in question is clearly inadmissible on all potential grounds.” Romero v. Helmerich & Payne Int'l Drilling Co., 2017 WL 3268878, at *3 (D. Colo. Aug. 1, 2017) (quoting Cook v. Peters, 2015 WL 10986407, at *1 (N.D. Okla. Jul. 30, 2015)). The Court thus briefly reviews what Plaintiff must show to prevail at trial.

         Plaintiff claims that Defendant used excessive force against Strong in execution of the warrant. Excessive force claims brought under 42 U.S.C. § 1983 are analyzed under the Fourth Amendment's “objective reasonableness” standard, which asks whether an officer's actions are objectively reasonable in light of the facts and circumstances, without regard to underlying intent or motivation. Graham v. Connor, 490 U.S. 386, 388, 397 (1989). Reasonableness is evaluated under a totality of the circumstances approach, which requires that the Court consider and balance three factors: (1) “the severity of the crime at issue, ” (2) “whether the suspect poses an immediate threat to the safety of the officers or others, ” and (3) “whether he is actively resisting arrest or attempting to evade arrest by flight.” Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1313 (10th Cir. 2009) (quoting Graham, 490 U.S. at 396); see also Lundstrom v. Romero, 616 F.3d 1108, 1126 (10th Cir. 2010) (referring to the Graham factors as the “three, non-exclusive factors relevant to [an] excessive force inquiry”).

         “Deadly force”-force which creates a substantial risk of death or serious bodily harm-is “justified only if a reasonable officer in the officer's position would have had probable cause to believe that there was a threat of serious physical harm to himself or others.” Cordova v. Aragon, 569 F.3d 1183, 1189, 1192 (10th Cir. 2009)(deadly force includes “force that is nearly certain to cause death, such as a shot to the head”); Thomson, 584 F.3d at 1313 (internal quotation marks omitted).

         To assess the degree of threat posed to officers, courts consider, among other things, “(1) whether the officers ordered the suspect to drop his weapon, and the suspect's compliance with police commands; (2) whether any hostile motions were made with the weapon towards the officers; (3) the distance separating the officers and the suspect; and (4) the manifest intentions of the suspect.” Estate of Larsen v. Murr, 511 F.3d 1255, 1260 (10th Cir. 2008) (the Larsen factors). “Another important aspect of this inquiry is whether the officers were in danger at the precise moment that they used force.” Thomson, 584 F.3d at 1315 (internal quotation marks omitted). The Court may further consider whether “the officers' own reckless or deliberate conduct during the seizure unreasonably created the need to use such force.” Cordova, 569 F.3d at 1188 (internal quotation marks omitted).

         To prevail at trial, Plaintiff must prove to the jury by a preponderance of the evidence that Defendant's use of deadly force was not objectively reasonable. At this juncture, Defendant files this pretrial Motion to raise evidentiary objections to certain of Plaintiff's evidence. The Court addresses each of Defendant's ten objections in turn.

         A. Testimony of Thomas Gates

         Defendant asks the Court to prohibit Thomas Gates from testifying at trial because Gates was never disclosed as an expert nor did Plaintiff provide any materials required by Federal Rule of Civil Procedure 26(a)(2). (ECF No. 130 at 2.) Plaintiff does not dispute that it failed to designate Gates as an expert pursuant to Rule 26(a)(2). Under Rule 37(c), “[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence . . . at a trial, unless the failure was substantially justified or is harmless.” Plaintiff does not provide any facts from which the Court could possibly conclude that failure to designate Gates as a witness was substantially justified or harmless. The Court thus grants this portion of the Motion. Gates cannot testify at trial.

         B. Testimony of Marcus Strong

         Defendant seeks to exclude the testimony of fact witness Marcus Strong. (ECF No. 130 at 2.) Plaintiff does not object to the exclusion of Strong's testimony. The Motion is thus conceded as to Marcus Strong, and the Court thus grants this portion of the Motion. Marcus Strong may not testify at trial.

         C. ‚ÄúState of ...


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