Email Warning Proprietor of Dangerous Condition ≠ Hearsay If Offered for Notice — Fact Noticed Risk Is Somewhat Different Than Risk at Issue OK — Police Officer’s Alleged History of Excessive Force ≠ Rule 406 Habit or Routine Practice

Sherrod v. Williams, 2019 U.S. Dist. LEXIS 15699 (S.D. Ohio Jan. 31, 2019):

This matter is currently before the Court on several motions in limine. Defendants Officer Sean C. Williams, Sergeant David M. Darkow, Chief Dennis Evers and the City of Beavercreek, Ohio ("the Beavercreek Defendants") have filed the following: (1) Motion in Limine Regarding Defendant Williams' Use of Force History and Response to Resistance/Use of Force Data (Doc. #190); (2) Motion in Limine Regarding References to the Terms "Toy Gun," "Air Gun," "Air Rifle," "Pellet Gun," "Pellet Rifle," and "BB Gun" (Doc. [*4]  #191); (3) Motion in Limine Regarding Defendant Williams' Prior Use of Deadly Force (Doc. #192); (4) Motion in Limine Regarding References to Other Publicized Incidents (Doc. #193); (5) Motion in Limine Regarding Dispute Between Dayton RTA and the City of Beavercreek About Bus Stops at Fairfield Commons Mall (Doc. #203); and (6) Motion in Limine Regarding Defendant Williams' Tattoo (Doc. #204).

Plaintiffs have filed a Motion in Limine to Prevent References to John Crawford's Alleged Marijuana Use (Doc, #201).1

Defendants Wal-Mart Stores East, LP, and Wal-Mart Stores, Inc. (collectively "Wal-Mart"), have filed the following: (1) Motion in Limine #2 (Doc. #209); (2) Motion in Limine #3 (Doc. #208); (3) Motion in Limine #4 (Doc. #210); (4) Motion in Limine #5 (Doc. #207); (5) Motion in Limine #6 (Doc. #238); and (6) Motion in Limine #7 (Doc. #239).

I. Background and Procedural History

The Court presumes the parties' familiarity with the relevant facts. To summarize, on August 5, 2014, Ronald Ritchie, a shopper at the Beavercreek Wal-Mart store, called 911 to report that a black man was loading a black rifle, waving it around and pointing it at people inside the store. Beavercreek Police Officer [*5]  Sean C. Williams and Sergeant David M. Darkow responded to the 911 dispatch. They found the suspect, John Crawford, Ill, standing alone in the pet department, looking at the shelves. In his right hand, he was holding a black rifle, which was pointed at the ground.

Sergeant Darkow ordered Crawford to drop the weapon. According to Officer Williams, Crawford turned toward the officers in an aggressive manner with his rifle in a low-ready position. Officer Williams fired two shots at Crawford, who died a short time later. It was later discovered that the "rifle" was actually an unloaded pellet rifle, or BB gun, that Crawford had picked up in Wal-Mart's sporting goods department.

The Administratrix of Crawford's estate and several of his family members filed suit against Williams, Darkow, Beavercreek's Chief of Police, Dennis Evers, the City of Beavercreek and Wal-Mart, alleging numerous federal and state claims. On January 15, 2019, the Court issued a Decision and Entry on motions for summary judgment filed by Plaintiffs and the Beavercreek Defendants. Doc. #240. On January 28, 2019, the Court issued a Decision and Entry on Wal-Mart's Motion for Summary Judgment. Doc. #273.

After the Beavercreek [*6]  Defendants filed a notice of interlocutory appeal, Doc. #272, the Court vacated the February 4, 2019, trial date. "The filing of a notice of appeal is an event of jurisdictional significance—it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal." Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982). The interlocutory appeal is limited to questions of whether Officer Williams is entitled to qualified immunity on the § 1983 claims and whether Officer Williams and Chief Evers are entitled to statutory immunity on the state law claims. Therefore, the Court retains jurisdiction to consider and decide motions unrelated to the subject of the appeal. To the extent possible, the Court will rule on the pending evidentiary motions so that trial may proceed as quickly as possible once the interlocutory appeal has been decided.

II. Motions in Limine Moos. ##190-193, 201, 203-204, 207-211, 238-239)

The parties have filed multiple motions in limine, seeking to exclude certain evidence at trial.

A. Relevant Law

Although neither the Federal Rules of Evidence nor the Federal Rules of Civil Procedure explicitly authorize the Court to rule on an evidentiary motion in limine, [*7]  the Supreme Court has noted that the practice of ruling on such motions "has developed pursuant to the district court's inherent authority to manage the course of trials." Luce v. United States, 469 U.S. 38, 41 n.4 (1984). The purpose of a motion in limine is to allow the Court to rule on issues pertaining to evidence in advance of trial in order to both avoid delay and ensure an evenhanded and expeditious trial. See Indiana Ins. Co. v. Gen, Elec. Co., 326 F. Supp.2d 844, 846 (N.D. Ohio 2004) (citing Jonasson v. Lutheran Child & Family Servs., 115 F.3d 436, 440 (7th Cir. 1997)). Pretrial orders also often save the parties time and cost in preparing for trial and presenting their cases.

Courts are generally reluctant to grant broad exclusions of evidence in limine, however, because "a court is almost always better situated during the actual trial to assess the value and utility of evidence." Koch v. Koch Indus., Inc., 2 F. Supp.2d 1385, 1388 (D. Kan. 1998); accord Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975). A court should not make a ruling in limine unless the moving party meets its burden of showing that the evidence in question is clearly inadmissible. Indiana Ins. Co., 326 F. Supp.2d at 846; Koch, 2 F. Supp.2d at 1388. If this high standard is not met, evidentiary rulings should be deferred so that the issues may be resolved in the context of the trial. Indiana Ins. Co., 326 F. Supp. 2d at 846.

B. The Beavercreek Defendants' Motions in Limine (Does. ##190-193, 203-204)

1. Williams' Use-of-Force History and Response-to-Resistance/Use-of-Force Data (Doc. #190) and Williams' Prior Use of Deadly [*8]  Force (Doc. #192)

The Beavercreek Defendants have moved the Court for an order excluding evidence of Officer Williams' prior uses of force and statistics showing that he used force at a much higher rate than any other officer on the Beavercreek police force. Doc. #190. They also ask the Court to exclude testimony, evidence and argument concerning Officer Williams' use of deadly force against Scott Brogli in June of 2010. Williams and another officer had responded to a domestic violence call and observed blood outside the residence. When they entered the residence, Brogli charged at them with a large knife. Williams shot and killed him. Doc. #192.

In this Court's view, this evidence is clearly relevant and admissible with respect to the remaining claims against the City of Beavercreek and Chief Dennis Evers, which will be bifurcated from the claims against Officer Williams and tried only if the same jury first finds that Officer Williams violated Crawford's constitutional rights. Accordingly, the Court limits its discussion to the question of whether such evidence is admissible for any purpose in the trial of the individual-capacity claims against Officer Williams.

The Beavercreek Defendants [*9]  argue that this evidence is irrelevant to the question of whether it was objectively reasonable for Williams to use deadly force against Crawford during the incident in question. They also argue that any probative value is outweighed by the danger of unfair prejudice and confusion of the issues. See Fed. R. Evid. 403. In addition, they argue that such "character evidence" is inadmissible under Fed. R. Evid. 404(b)(1), which prohibits the use of evidence of other wrongdoing "to prove a person's character in order to show that, on a particular occasion, the person acted in accordance with [that] character."

In contrast, Plaintiffs maintain that evidence of Williams' prior uses of force, including his use-of-force statistics and his prior use of deadly force, is relevant to the claims brought against him in his individual capacity. They further argue that such evidence is admissible under Fed. R. Evid. 404(b)(2), which provides that evidence of other acts "may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." In addition, Plaintiffs contend that the probative value of such evidence is not substantially outweighed by the danger of unfair [*10]  prejudice or confusion of the issues.

The threshold question is whether the evidence that Plaintiffs seek to admit is relevant. Evidence is relevant if: "(a) it has a tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Fed. R. Evid. 401.

With respect to the § 1983 claims against Officer Williams, the Beavercreek Defendants correctly note that the jury must determine whether his actions were objectively reasonable in light of the circumstances confronting him at that very moment. Graham v. Connor, 490 U.S. 386, 396-97 (1989). Actions that the officer may have taken at other times in other situations are simply irrelevant to this determination. Accordingly, evidence of Williams' prior uses of force is irrelevant and therefore inadmissible with respect to the § 1983 claims.

With respect to at least some of the remaining state law claims, evidence of prior uses of force may be relevant but it is not necessarily admissible. Under Fed. R. Evid. 404(b)(1), such evidence is not admissible to show that Williams acted in conformity with his prior uses of force. The Sixth Circuit has held that, before admitting evidence under Fed. R. Evid. 404(b)(2), it must:

(1) determine whether this is sufficient evidence that the prior [*11]  acts occurred; (2) determine whether the other act is admissible for one of the proper purposes outlined in the rule; and (3) apply Rule 403 balancing to determine whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice.

United States v. Hardy, 643 F.3d 143, 150 (6th Cir. 2011).

There appears to be little dispute that the prior acts occurred. Officer Williams' prior uses-of-force are documented in his personnel file and included in the statistical analyses. Plaintiffs argue that this evidence is admissible under Fed. R. Evid. 404(b) to show the absence of mistake or accident, to show habit, and to show intent. Doc. #243.

Officer Williams does not contend that he shot Crawford by accident or by mistake. Rather, he claims that he intentionally shot him because he believed that Crawford posed an imminent danger of serious bodily harm. Accordingly, this exception does not apply.

Plaintiffs also argue that evidence of Williams' prior acts is admissible to show intent. They cite to several cases in courts have admitted evidence of police officers' prior uses of excessive force to prove that they intended to inflict injury on others during the course of an arrest. See, e.g., Edwards v. Thomas, 31 F. Supp. 2d 1069, 1074-75 (N.D. III. 1999) (admitting evidence of prior use of excessive force [*12]  to show the officer's "intention to commit assault and battery on Edwards."); United States v. Brown, 250 F.3d 580, 585-86 (finding no abuse of discretion where district court admitted evidence of prior incident to show officer's intent "to punish people who defied his authority.").

Assuming arguendo that evidence of Williams' prior uses of force would be admissible under Rule 404(b)(2) to show that he intended to inflict physical or emotional injury on Crawford, it does not survive the Rule 403 balancing test. Absent proof of factually-similar circumstances, it cannot be said that evidence of Williams' prior uses of force is especially probative of his intent to inflict physical or emotional injury on Crawford. Notably, although statistics show that Williams uses force more often than other officers, his supervisors have never deemed any of his prior uses of force to be excessive. Moreover, only one of the prior incidents involved the use of deadly force and, there, it is undisputed that Williams' use of deadly force was warranted.

In the Court's view, the probative value of such evidence with respect to the state taw claims brought against Williams is substantially outweighed by the danger of unfair prejudice and confusion of the issues. Evidence [*13]  that Officer Williams uses force more frequently than other officers on the police force and evidence that he has used deadly force once before would distract the jury from the relevant issues stemming from this particular incident. Moreover, if the Court were to allow Plaintiffs to introduce evidence of Williams' prior uses of force, a jury could improperly conclude that, because Williams has a propensity to use force, he must have acted in conformity with that propensity when he shot and killed Crawford. Accordingly, such evidence is excludable under Rule 403.

Plaintiffs also argue that the statistical data demonstrates that Williams had a "habit" of using force. They also argue that evidence of prior incidents shows that Williams had a "habit of acting with immaturity" and "popping off at the mouth." Doc. #243, PageID#1 7323. "Habit" is not one of the exceptions listed in Rule 404(b)(2). Nevertheless, Fed. R. Evid. 406 provides that "[e]vidence of a person's habit . . . may be admitted to prove that on a particular occasion the person . . . acted in accordance with the habit." A "habit," however, is "one's regular response to a repeated specific situation." Examples might include "going down a particular stairway two [*14]  stairs at a time" or "giving the hand-signal for a left-turn" or "alighting from railway cars while they are moving." Fed. R. Evid. 406 advisory committee notes to 1972 Proposed Rules.

In the Court's view, Rule 406 does not apply here. A police officer may have a "habit" of escorting a handcuffed suspect by the left elbow or of reading a suspect his Miranda rights at a certain point In the process of an arrest. However, the fact that an officer may have a tendency to use force more frequently than other officers does not constitute a "habit." Because each situation encountered by a police officer presents a unique set of circumstances, the officer's use of force cannot be deemed a "regular response to a repeated specific situation."

For the reasons set forth above, the Court SUSTAINS the Beavercreek Defendants' Motion In Limine Regarding Defendant Williams' Use-of-Force History and Response-to-Resistance/Use-of-Force Data, Doc. #190, and their Motion in Limine Regarding Defendant Williams' Prior Use of Deadly Force, Doc. #192.2 This opinion is limited to the individual liability claims against Williams.

***

6. Motion in Limine #7 (Doc. #239)

Finally, Wal-Mart asks the Court to exclude Exhibit 51 to the deposition of Wal-Mart employee Joseph Bonds. Doc. #250-3, PageID##17939-41. This is an email message sent to Wal-Mart by Jeff Wilson, a Wal-Mart shopper in Minnesota. Wilson expressed his concern about two children who picked up an air rifle and pointed it at other customers. He suggested that Wal-Mart lock up its pellet rifles in the same manner it locks up real firearms because customers could load the pellet rifles and shoot them at customers, causing serious injury or death. Wilson's email message was forwarded to several Wal-Mart employees and managers, including Joseph Biddulph, Wal-Mart's Vice President who had responsibility for the sporting goods departments. Biddulph admits that he received [*30]  the email message, but does not recall how, or if, the issue was resolved. Doc. #263, PageID##19141-44.

Wal-Mart maintains that this email message is irrelevant because the danger that Wilson addresses in his email message—the possible use of the pellet rifle to injure other customers—is different from the risk at issue in this case, the danger that may arise when other customers believe the pellet rifle to be a real firearm. Wal-Mart also argues that the probative value of this evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury. In addition, Wal-Mart contends that Wilson's email message is inadmissible hearsay.

Plaintiffs argue that this email message is relevant and admissible. It shows that Wal-Mart had actual notice of hazards associated with the unsecured display of pellet rifles and yet failed to take action to protect its business invitees. Plaintiffs also argue that, because the email message is not offered for the truth of the matter asserted, but rather to show that Wal-Mart was on notice of customer concerns related to its display of pellet rifles, it is not inadmissible hearsay.

The Court agrees that, because [*31]  it is not offered for the truth of the matter asserted but to show notice, the email message does not constitute inadmissible hearsay. The Court further finds that, even though the email message addresses a different risk than the one at issue in this case, it is nevertheless probative on the question of whether Wal-Mart breached a duty of care to protect its business invitees from foreseeable dangers associated with the unsecured display of pellet rifles. In the Court's view, the probative value of this evidence is not substantially outweighed by the danger of unfair prejudice or confusion of the issues. Accordingly, the Court OVERRULES Wal-Mart's Motion in Limine #7, Doc. #239.

III. Conclusion

For the reasons set forth above, the Court:

• SUSTAINS the Beavercreek Defendants' Motion in Limine Regarding Defendant Williams' Use of Force History and Response to Resistance/Use of Force Data (Doc. #190);

• SUSTAINS the Beavercreek Defendants' Motion in Limine Regarding Defendant Williams' Prior Use of Deadly Force (Doc. #192);

• OVERRULES WITHOUT PREJUDICE the Beavercreek Defendants' Motion in Limine Regarding References to the Terms "Toy Gun," "Air Gun," "Air Rifle," "Pellet Gun," "Pellet [*32]  Rifle," and "BB Gun" (Doc. #191);

• OVERRULES AS MOOT the Beavercreek Defendants' Motion in Limine Regarding References to Other Publicized Incidents (Doc. #193);

• OVERRULES AS MOOT the Beavercreek Defendants' Motion in Limine Regarding Dispute Between Dayton RTA and the City of Beavercreek About Bus Stops at Fairfield Commons Mall (Doc. #203);

• SUSTAINS the Beavercreek Defendants' Motion in Limine Regarding Defendant Williams' Tattoo (Doc. #204);

• SUSTAINS Plaintiffs' Motion in Limine to Prevent References to John Crawford's Alleged Marijuana Use (Doc. #201);

• OVERRULES Wal-Mart's Motion in Limine #2 (Doc. #209);

• OVERRULES WITHOUT PREJUDICE Wal-Mart's Motion in Limine #3 (Doc. #208);

• OVERRULES AS MOOT Wal-Mart's Motion in Limine #4 (Doc. #210);

• SUSTAINS Wal-Mart's Motion in Limine #5 (Doc. #207);

• OVERRULES Wal-Mart's Motion in Limine #6 (Doc. #238); and

• OVERRULES Wal-Mart's Motion in Limine #7 (Doc. #239).

 


This Decision and Entry does not address Plaintiffs' Motion in Limine to Preclude Argument that Ronald Ritchie was a Legal or Proximate Cause of John Crawford's Death, Doc. #211. A separate Decision and Entry addressing that motion is forthcoming.

In their memorandum in opposition to these motions, Doc. #243, Plaintiffs suggest that certain evidence contained in Williams' personnel file Is admissible under Fed. R. Evid. 608(b) for impeachment purposes because it is probative of Williams' character for truthfulness. More specifically, Plaintiffs argue that Williams lied when he testified that he saw Crawford turn toward him with the rifle. Plaintiffs seek to introduce evidence of two citizen complaints, one allegedly showing that Williams has a tendency to twist the facts to support his position, and one in which Williams was directly accused of lying. The Court reserves ruling on the admissibility of this evidence for impeachment purposes and directs Plaintiffs' counsel to avoid mention of this evidence in their opening statements to the jury and to ask to approach the bench before attempting to Introduce such evidence.

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