Opinion
14-cv-7513 (ENV) (VMS) 16-cv-4224 (ENV) (VMS)
05-01-2020
TEVON THOMAS, et al., Plaintiffs, v. JOEBIAN ORTIZ, et al., Defendants. HAROLD BROWNE, et al., Plaintiffs, v. JOEBIAN ORTIZ, et al., Defendants.
SHORT-FORM MEMORANDUM & ORDER
Jury selection in this matter was scheduled for March 30, 2020. In anticipation of trial, the parties submitted various motions in limine. Due to the disturbance caused by the COVID-19 pandemic, the trial was adjourned without date. The motions are resolved in the manner and for the reasons set forth below.
| I. Plaintiffs' Motions in Limine | |
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| Request | Ruling |
| (A) Plaintiffs seek to preclude defendantsfrom introducing evidence concerningplaintiffs' financial status and employment | (A) As defendants do not intend to introduceevidence of plaintiffs' financial status or jobhistory, unless plaintiffs open that door bytestifying about economic damages, plaintiffs' |
| motion is denied as moot. However,defendants alert the Court to evidence relatingto certain plaintiffs' employment that isproffered as relevant to establish arelationship between them and their activitiesleading up to their arrest. Dkt. 151, Defs.'Opp'n at 3. To the extent defendants intendto offer such evidence, defendants will, notlater than two weeks prior to trial, specify theevidence they intend to adduce for thispurpose and make a showing as to itsprobative value. | |
| (B) Plaintiffs concede that plaintiff RavinCox's 2011 conviction for AggravatedUnlicensed Operation of a Motor Vehicle inthe First Degree was a felony conviction thatpasses the standard of admissibility underRule 609(a)(1)(A), but they move to precludedefendants from impeaching Cox with it onstaleness grounds and in light of itsprejudicial effect. Pls.' Mem. at 12. | (B) Defendants intend only to introduceevidence of the nature of Cox's and Thomas'sconvictions, Defs.' Opp'n at 5-6, and,therefore, plaintiffs' motion as to other felonyor misdemeanor convictions is denied asmoot.A felony conviction of a witness in acivil case, it is widely understood, isadmissible, but subject, of course, to the |
| Similarly, although they acknowledge the2018 homicide conviction of TevonThomas—whom they do not anticipate callingas a witness—is admissible under Rule 609,they seek to bar defendants from calling himas a witness, and impeaching him with hisconviction, under Rule 403. Id. at 12-13; 22-23. Finally, they move to preclude defendantsfrom introducing plaintiffs' misdemeanorconvictions, and the felony convictions ofplaintiffs Gary Jeanty, David Alcindor, andMilton Sears, which are over ten years oldand which did not involve crimes ofdishonesty. Id. at 13-17. | balancing strictures of Rule 403. Fed. R.Evid. 609(a)(1)(A). Admissibility under Rule403 depends on "(1) the impeachment valueof the prior crime, (2) the remoteness of theprior conviction, (3) the similarity betweenthe past crime and the conduct at issue, and(4) the importance of the credibility of thewitness." Stephen v. Hanley, No. 03-cv-6226(KAM) (LB), 2009 WL 1471180, at *4(E.D.N.Y. May 21, 2009).Put plainly, plaintiffs have not shown,and it is their burden to do so, that thesefactors weigh in favor of granting theirmotion. As to Cox, his conviction, as afelony, has at least some probative value forveracity, see Jean-Laurent v. Hennessy, 840F. Supp. 2d 529, 544 (E.D.N.Y. 2011), but thecrime was not one of dishonesty—a fact thatcuts against admission. Cf. United States v.Brown, 606 F. Supp. 2d 306, 313 (E.D.N.Y.2009) (illegal firearm possession involvesneither untruthfulness nor deception, whichcounsels against admission). On the other |
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| edge of the sword, though, because theconduct at issue and Cox's conviction havelittle in common, the jury is less likely to beconfused or unduly prejudiced by itsintroduction. Jean-Laurent, 840 F. Supp. 2dat 544. Furthermore, as Cox is attempting toconvince the jury of his version of events onthe night of his arrest, the jury's assessmentof his credibility is critical to its reaching averdict as to his claim. In other words, thatsort of impact on a jury is not undulyprejudicial. Finally, applicable case precedentstrongly suggests that a conviction that isclose to, but not quite ten years in age, such asCox's nine-year-old felony, is notprejudicially stale. See Jones v. City of NewYork, No. 98-cv-6493 (LBS), 2002 WL207008 (S.D.N.Y. Feb. 11, 2002); see alsoHartman v. Snelders, No. 04-cv-1784, 2010WL 11626508, at *10-11 (E.D.N.Y. Jan. 28,2010) (analyzing convictions for which lessthan ten years had elapsed as "recent").Because the evidentiary arguments advanced |
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| by plaintiffs, at best, show that only two ofthe factors weigh against admission, and, atthat, only somewhat, and counterpointed byfactors weighing strongly in favor ofadmission, the Court cannot conclude theprobative value of the conviction is"substantially outweighed" by any prejudicialeffect. Fed. R. Evid. 403 (emphasis added).Even more compelling are defendants'grounds to admit Thomas's homicideconviction. Concededly, a homicideconviction is more prejudicial than Cox'smotor vehicle conviction, and it does notinvolve dishonesty. However, the recency ofThomas's conviction, only two-years-old, andthe fact that he is a plaintiff who will seek topersuade the jury to credit his version ofevents, weigh heavily in favor of admission.See Jean-Laurent, 840 F. Supp. 2d at 544. Inlight of these realities, to find his homicideconviction is inadmissible in this case becauseof its prejudicial effect would, for all intentsand purposes, be to hold that a homicide |
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| conviction is never admissible under Rule609. The Rule could have quite easily andquite precisely been written to say exactlythat, but it was not. The Court declines to re-write the Rule in this fashion. Since truly, theonly factor plaintiffs advance is theprejudicial aspect of the jury's assessment ofthe testimony of a witness impeached by hishomicide conviction, the motion to bar suchimpeachment is denied.But, there is a caution flag. Tomitigate the prejudicial impact of suchevidence, defendants are cautioned not toengage in any examination of Thomas thatmight elicit testimony as to the underlyingfacts of the conviction.Lastly, that plaintiffs do not intend tocall Thomas as a witness has no bearing onthe impeachment value of his convictionshould he be called to testify by defendants.Bluntly, whether plaintiffs want to shieldThomas from the jury, he is a highly relevantwitness regarding his claims against |
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| defendants, and defendants are well-withintheir rights to call him in this case. See Fed.R. Civ. P. 45(c)(1)(B)(i); see also Fed. R.Evid. 607 & advisory committee's note to1972 Proposed Rules (abandoning ruleagainst impeaching one's own witness).Whether they decide to do so is merely amatter of trial strategy, since the impeachmentof Thomas with his homicide conviction ispermissible regardless of who calls him. Themotion to bar defendants from callingThomas to testify and, if called as a witness,to bar his impeachment with his 2018homicide conviction, is denied. | |
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| (C) Plaintiffs seek to preclude defendantsfrom introducing plaintiffs' criminal histories,including Exhibits K-R, which are copies ofplaintiffs' "rap sheets," arguing theirprejudicial effect is disproportionate to anyprobative value as to damages. Pls.' Mem. at17-18. In the alternative, they argue that the | (C) In their motion, plaintiffs grasp, correctly,that evidence that a plaintiff has been arrestedand incarcerated, even for misdemeanors, andeven in the absence of conviction, is relevanton the question of claimed emotionaldamages in a lawsuit for wrongfulincarceration. See Cicero v. City of New |
| Court should bifurcate the liability anddamages phases of the trial. Id. at 19. | York, No. 11-cv-0360 (NGG), 2011 WL3099898, at *4 (E.D.N.Y. July 25, 2011).Such claims may be challenged here sincedefendants draw attention to portions ofcertain plaintiffs' deposition testimony inwhich they contend their arrests andsubsequent detentions led them to fear smallspaces and police officers, or that they sufferfrom flashbacks. Defs.' Opp'n at 3.Clearly, evidence that these plaintiffshave been previously arrested or incarceratedmay inform the jury's assessment of theextent of emotional harm. See Wisdom v.Undercover Police Officer #C0127, 879 F.Supp. 2d 339, 342 (E.D.N.Y. 2012)(admitting evidence of prior arrests, but notthe underlying facts, to aid the jury in itsdamages finding); Phillips v. City of NewYork, 871 F. Supp. 2d 200, 207 (E.D.N.Y.2012) (evidence of prior arrests andincarceration relevant to emotional damages).Yet, the reasoning of such decisions |
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| must be parsed. The fact that a plaintiffpreviously arrested or incarcerated is claimingemotional damages on account of a wrongfularrest is extremely relevant, while the reasonsfor the previous arrest can be quiteprejudicial. See Ramos v. Cty. of Suffolk, 707F. Supp. 2d 421, 424 (E.D.N.Y. 2010).Accordingly, in light of the inherentlyprejudicial nature of a previous conviction,defendants shall be permitted, for thesepurposes, to introduce evidence regardingonly the number of times each plaintiff wasarrested and the length of each period ofdetention or incarceration in a jail cell. Tofacilitate such evidence, a plaintiff's rap sheetmay be used to refresh a witness'srecollection but shall not be admitted. (Anyfailures of recollection will be handled duringtrial.) Furthermore, by mitigating anyprejudicial effect in this manner, bifurcationwill not be necessary.Of course, should plaintiffs withdrawtheir claim for emotional injuries, as they |
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| have signaled, see Pls.' Mem. at 19-21,defendants may not introduce any evidence ofplaintiffs' prior arrests or the periodincarceration for the purpose of controvertingdamages. | |
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| (D) Plaintiffs seek to preclude defendantsfrom calling Tevon Thomas as a witness toelicit testimony as to his recent conviction forhomicide, arguing such a tactic would lead toa distortion of Rule 609. Pls.' Mem. at 22-23. | (D) As discussed in I(B), supra, defendantsmay call Tevon Thomas as a witness, even iftheir primary motivation is to impeach thecredibility of the claim he makes in hiscomplaint. See Patrick v. City of Detroit, 906F.2d 1108, 1113, 30 Fed. R. Evid. Serv. 1252(6th Cir. 1990) (affirming the right, underFederal Rule of Evidence 607, to impeach anadverse party after calling him as a witness).Indeed, as further explained in I(B), supra,defendants would be well within their right toimpeach Thomas with his homicideconviction under Federal Rule of Evidence609, which clearly permits suchimpeachment, should he take the stand of hisown volition. That plaintiffs seek to insulateThomas from exposure to his homicideconviction is uncompelling, and plaintiffs |
| offer no case law supporting their position.The motion, therefore, is denied. | |
| (E) Plaintiffs seek to preclude defendantsfrom introducing plaintiffs' prior lawsuits.Pls.' Mem. at 24-25. | (E) Since defendants concede they do notseek to introduce evidence of plaintiffs' priorlawsuits, Defs.' Opp'n at 2, the motion isdenied as moot. |
| (F) Plaintiffs seek to preclude defendants, onthe basis of a prior ruling, from introducingdefendants' Exhibit JJ, which contains audiorecordings of certain plaintiffs' telephonecalls from Rikers Island during theirincarceration, noting that Magistrate JudgeVera M. Scanlon has already ordered thatdefendants are precluded from using therecordings in their case-in-chief and forimpeachment purposes. Pls.' Mem. at 25-27. | (F) The Court will not disturb the preclusionorder entered as a sanction against defendantsrelating to apparent misconduct in the courseof discovery. The motion, therefore, isgranted. If, however, defendants represent attrial that testimony offered by a witnessconflicts with the recordings in Exhibit JJ,defendants will be permitted at that time tomake an offer of proof to that effect. TheCourt will then consider whether anyplausibly false statement, made under oath inopen court, merits reference to the UnitedStates Attorney and/or disciplinary action. Inany event, at trial, all other tools ofimpeachment will remain available withrespect to such testimony. |
| (G) Plaintiffs move to preclude defendants | (G) Inescapably, the presence of marijuana at |
| from inquiring into plaintiffs' use orfamiliarity with marijuana. Pls.' Mem. at 27-28. | the scene—both fresh and burned—plays acentral role in the events on the night of thearrest. That no marijuana was recovered fromany plaintiff's person, nor was any plaintiffcharged with actual marijuana possession,does nothing to alter the reality of thepresence of marijuana at the scene. This isnot to say, however, that plaintiffs' subjectivefamiliarity with marijuana could haveinformed the arresting officers' probablecause determination at the time of arrest.In this light, defendants are free, oncross-examination, to question a testifyingplaintiff as to any such familiarity if, asdefendants predict, he denies, on directexamination, smelling or observing anymarijuana on the premises. Such elicitedtestimony, while possibly prejudicial, doesnot rise to a level inadmissible under Rule403.To that extent, plaintiffs' motion isdenied. Otherwise, defendants may notinquire about any plaintiff's familiarity with |
| (H) Plaintiffs move to preclude defendantsfrom introducing any evidence suggestingplaintiffs have any gang affiliation. Pls.'Mem. at 28-30. | (H) Given that defendants do not intend tooffer such proof, see Defs.' Opp'n at 10,plaintiffs' motion is denied as moot.Defendants do, however, intend tointroduce evidence that the house in questionwas being used as a gang house to givecontext to the reason for the raid and certainprecautions the officers took. See id.Importantly, in the course of offering suchproof, defendants may not attempt to tie anyplaintiff to a gang or argue that the evidenceestablishes their gang membership. Merepresence at a gang location does not make theperson present a gang member. |
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| (I) Plaintiffs move to preclude defendantsfrom eliciting testimony about the defendants'military service, community service, civicservice or commendations. Pls.' Mem. at 30-31. | (I) As defendants do not intend to introduceevidence or elicit testimony about defendants'military service, community service, civicservice or commendations, Defs.' Opp'n at 2,plaintiffs' motion is denied as moot. |
| II. Defendants' Pretrial Motion and Motion in Limine | |
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| Request | Ruling |
| (A) Although included in their motions inlimine, defendants first move to dismissplaintiffs' claims for malicious prosecutionand denial of a right to fair trial in light of theSecond Circuit's holding in Lanning v. City ofGlens Falls, 908 F.3d 19 (2d Cir. 2018) andthe Supreme Court's holding in McDonoughv. Smith, 139 S. Ct. 2149, 204 L. Ed. 2d 506(2019). Dkt. 148, Defs.' Mem., at 10-15. | (A) The dismissal of plaintiffs' fair trial andmalicious prosecution claims is mandated byMcDonough. As this Court recently held inthe context of an adjournment incontemplation of dismissal ("ACD"):In light of McDonough . . . thenature of a fair trial claim mustbe scrutinized at its outset.Undoubtedly, as the SupremeCourt recognized, certaincategories of fair trial claimsdo not challenge probablecause in a manner threateningthe validity of any convictionor sentence. But criminaldefendants may no longer aimtheir axes, by civil lawsuit, atthe trunk of ongoing criminalproceedings, for such actionsrisk collaterally felling them.With this in mind, and withrecognition that, in the absenceof an ongoing prosecution, thetraditional reach of the Heck[v. Humphrey] rule[prohibiting collateral attack ofan outstanding criminaljudgment] does not squarelyimplicate ACDs, McDonough,still, by the force of itsreasoning, compels revisitingthe effect of an acceptance ofan ACD on one's later ability |
| to bring certain fabricated-evidence fair trial claims.Miller v. Terrillion, — F. Supp. 3d —, No.16-cv-52 (ENV) (RLM), 2020 WL 549356, at*6 (E.D.N.Y. Jan. 30, 2020) (internal citationomitted). As a result, the Court held that aplaintiff is barred from bringing a fair trialclaim "[that] targets the very evidence thatwould have otherwise been shielded fromcollateral attack," and "the success of whichwould necessarily undermine the validity of aprosecution." Id. at *6 (citing Lanning, 908F.3d at 26). Here, plaintiffs' criminalprosecutions were dismissed on the AssistantDistrict Attorney's motions, rather than uponthe acceptance of ACDs. Nevertheless,plaintiffs attack the very foundation of theprosecutions against them by alleging "it isundisputed that the plaintiffs—other thanNelson, Hippolyte, and Jeanty—were seized,jailed, and prosecuted as a result of thecharges that flowed from [the allegedlymisleading information forwarded toprosecutors]." Pls.' Opp'n at 13. Because, as |
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| 2d at 550; Nnodimele v. Derienzo, No. 13-cv-3461 (ARR) (RLM), 2016 WL 3561708, at*3 (E.D.N.Y. June 27, 2016). | |
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| (C) Defendants move to preclude plaintiffsfrom offering into evidence or suggesting tothe jury that the city may indemnifydefendants. Defs.' Mem. at 16-18. | (C) Defendants' motion is granted to theextent plaintiffs will not be permitted to referto or suggest the possibility that the City willindemnify defendants. If, however, anydefendant opens the door by offeringargument or evidence of his limited financialcapacity, plaintiffs may move forreconsideration of this ruling. See Andersonv. Aparicio, 25 F. Supp. 3d 303, 314(E.D.N.Y. 2014), aff'd and remanded subnom. Anderson v. Cty. of Suffolk, 621 F.App'x 54 (2d Cir. 2015); cf. Provost v. City ofNewburgh, 262 F.3d 146, 163-64 (2d Cir.2001). |
| (D) Defendants move to preclude plaintiffsfrom requesting a specific dollar amount fromthe jury. Defs.' Mem. at 18-19. | (D) The motion is denied, but plaintiffs willbe allowed, and at that, solely in the contextof closing argument, to make a statement as towhat liability the evidence has established,what damages it has caused and to submit aspecific dollar amount they contend is |
| reasonable compensation for their loss. TheCourt will instruct the jury that statements bylawyers in closing are nothing more thanargument. See Edwards v. City of New York,No. 08-cv-2199 (TLM), 2011 WL 2748665,at *2 (E.D.N.Y. July 13, 2011); see alsoLightfoot v. Union Carbide Corp., 110 F.3d898, 912 (2d Cir. 1997). | |
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| (E) Defendants move to preclude plaintiffsfrom mentioning or offering into evidence theNYPD police student guide, NYPD patrolguide, or other police department guidelines,trainings, and procedures, arguing any allegedviolations of such guidelines are eitherirrelevant or inadmissible under Rule 403.Defs.' Mem. at 19-20. | (E) Defendants are correct that the NYPDrules and procedures set forth in the patrolguide do not establish constitutionalstandards, and violations of them cannot formthe basis for a finding of liability. See Brownv. City of New York, 798 F.3d 94, 106 (2d Cir.2015); Cerbelli v. City of New York, No. 99-cv-6846 (ARR) (RML), 2008 WL 4449634,at *10 (E.D.N.Y. Oct. 1, 2008). Plaintiffsacknowledge this reality, but they argue thatany such guidelines are helpful to understandthe course of conduct of a reasonable officerunder the circumstances. Pls.' Opp'n at 15-17. They also argue they intend to use suchevidence to impeach a testifying defendant as |
| to whether his conduct "would comport orconflict with NYPD rules and regulations."Id. at 17.The Court agrees with plaintiffs thatevidence of "sound professional standardsgoverning a defendant's actions can berelevant and helpful." Nnodimele v.Derienzo, No. 13-cv-3461 (ARR) (RLM),2016 WL 3561708, at *14 (E.D.N.Y. June 27,2016) (quoting Jimenez v. City of Chicago,732 F.3d 710, 721 (7th Cir. 2013)). As aresult, plaintiffs may use the NYPD procedureor patrol guidelines to impeach defendants,should they testify, but only to the extent thatany act or omission that is the subject of atestifying defendant's account is contrary toNYPD rules, practices or procedures. Themotion is otherwise granted. | |
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| (F) Defendants move to preclude plaintiffsfrom inquiring into the disciplinary history ofdefendants or any non-party officer, or anylawsuits against them. Defs.' Mem. at 21-24. | (F) Plaintiffs advise that they do not intend tointroduce evidence that any of the defendantsengaged in other, similar misconduct otherthan conduct that speaks directly to veracity.See Pls.' Opp'n at 17-18. Defendants' |
| motion, therefore, is denied as moot, but maybe renewed at trial should plaintiffs seek toproffer any prior conduct of a defendant-witness, even should plaintiffs claim theconduct speaks only to veracity anddefendants have a good-faith basis to supportan argument to the contrary. | |
| (G) Defendants seek to preclude plaintiffsfrom referencing allegations of misconductagainst other police officials or events in thenews, or using inflammatory terms to describepolice activity. They further seek to barplaintiffs from using terminology such as"testilying" and "blue wall of silence" ashighly prejudicial and inflammatory. Defs.'Mem. at 25-26. | (G) Plaintiffs do not intend to introduceevidence about unrelated events concerningother police departments or officers. See Pls.'Opp'n at 18-19. Accordingly, to that extent,the motion is denied as moot. With respect todefense concerns about the use of largelyinflammatory statements by counsel,including the terms referenced in the motion,such inflammatory language will not be usedby either side. Obviously, any argumentabout credibility that is not inflammatory andis supported by the record is fair game. Tothat extent, the motion is granted. |
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| (H) Defendants seek to preclude plaintiffsfrom introducing evidence about dismissedclaims or settlement, plaintiffs' Proposed | (H) Based on representations by plaintiffs thatthey do not intend to offer evidence as to priorsettled claims, see Pls.' Opp'n at 19-20, to |
| Exhibit 22 (an intake form related to allarrestees, including those who have settled),and plaintiffs' Proposed Exhibit 38 (a form inwhich the District Attorney declined toprosecute proposed witness and formerplaintiff Dwayne Jones). Defs.' Mem. at 26-27. | that extent the motion is denied as moot. Asfor the exhibits, because plaintiffs intend toredact both proposed exhibits to cure anyissues relating to non-parties, see Pls'. Opp'nat 19-20, decision on their admissibility asredacted is reserved until their proffer. |
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| (I) Defendants move to reserve their rights tofile supplemental motions in limine. Defs.'Mem. at 27. | (I) Denied. The time to file in limine motionshas long come and gone. To the extent thatany party believes that a matter requiresurgent consideration, they may file a pre-motion letter seeking the Court's permissionto file such a motion. |
All citations to pages refer to the Electronic Case Filing System ("ECF") pagination.
As held in II(A), infra, plaintiffs' fair trial and malicious prosecution claims cannot proceed, as the prosecutions against them did not terminate favorably, and they seek to impugn the very grounds supporting the charges against them.
However, if such testimony is elicited, plaintiffs may, at trial, propose, for the Court's consideration, a limiting instruction to mitigate any perceived risk that the jury could conflate plaintiffs' familiarity with marijuana with an objective, ex ante assessment of probable cause.
The Court, in its discretion, will consider defendants' motion, which, ordinarily, would be untimely.
In Gondola v. City of New York, No. 16-cv-369 (AMD) (SJB), 2020 WL 1433874, at *3 n.5, *4 (E.D.N.Y. Mar. 24, 2020), the district court cited favorably to the reasoning in Miller to discuss fair trial claims in the identical posture as here. See also Daniels v. Taylor, No. 18-cv-3717 (RA), 2020 WL 1165836, at *5-6 (S.D.N.Y. Mar. 11, 2020) (holding that, in light of McDonough, an ACD bars fair trial claims based on fabrication of evidence). The Miller reasoning, however, was rejected in Simon v. City of New York, No. 16-cv-1017 (NGG) (RML), 2020 WL 1323114, at *5 (E.D.N.Y. Mar. 19, 2020), with the district court criticizing the reasoning as eliminating the distinction between fair trial and malicious prosecution claims. Respectfully, the issue is not whether Miller's reasoning erodes or even eliminates the distinction between such claims, it is whether McDonough compels a plaintiff pleading a fair trial claim to show that the prosecution ended in his favor on the question of guilt or innocence. McDonough does compel such pleading, and plaintiffs here fail to do so.
So Ordered.
Dated: Brooklyn, New York
May 1, 2020
/s/ Eric N. Vitaliano
ERIC N. VITALIANO
United States District Judge