JOE B. UPCHURCH AND MARY BETH UPCHURCH, Plaintiffs,
DAVID HARCHARIK, JULIUS HUDSON, AND BARRY STINGLEY, Defendants.
DANIEL P. JORDAN, III, District Judge.
This § 1983 case is before the Court on the following pre-trial motions: (1) Defendants' Motion in Limine ; (2) Plaintiffs' Motion in Limine to Exclude Alleged Criminal Conduct ; (3) Plaintiffs' Motion in Limine to Exclude Favorable Contents of Personnel Files ; and
(4) the parties' Joint Motion for Continuance . Having fully considered the premises and discussed the motions with counsel during the pretrial conference, the Court rules as follows.
As summarized by the Fifth Circuit Court of Appeals:
A motion in limine is a motion made prior to trial for the purpose of prohibiting opposing counsel from mentioning the existence of, alluding to, or offering evidence on matters so highly prejudicial to the moving party that a timely motion to strike or an instruction by the court to the jury to disregard the offending matter cannot overcome its prejudicial influence on the jurors' minds.
O'Rear v. Fruehauf Corp., 554 F.2d 1304, 1306 n. 1 (5th Cir. 1977) (citation and quotation omitted).
A. Defendants' Motion in Limine  and Plaintiffs' Motion in Limine 
These motions are somewhat related. Joe Upchurch was arrested under Mississippi Code § 97-35-7(l) (disorderly conduct-failure to comply), § 97-29-47 (public drunk), and § 97-9-73 (resisting arrest) following an altercation with the defendant police officers. The charges were later remanded to the file. Defendants contend that the disposition of the charges is not relevant to an excessive force claim, whereas Plaintiffs contends that the jury should not hear "any conduct involving public intoxication or resisting arrest." Pls.' Mot.  at 3.
As an initial point, Plaintiffs' motion is denied because the evidence they seek to exclude is the very evidence that must be considered in an excessive force context.
In determining whether a use of force was reasonable, we look to the totality of the circumstances, giving "careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight."
Ramirez v. Martinez, 716 F.3d 369, 377 (5th Cir. 2013) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989) (other internal citation omitted)). So in this case, the jury must be allowed to hear evidence regarding Joe Upchurch's alleged conduct at the scene to determine whether the force used in response to that conduct was excessive.
Defendants' motion seeks to exclude evidence regarding the disposition of the charges. That motion is granted. Plaintiffs expressed concern that Defendants will attempt to "defend their civil case by retrying any criminal charges they swore against Joe Upchurch, which failed in the Rankin County Justice Court." Pls.' Mot.  at 2. But the question for the jury is whether Defendants used excessive force under the circumstances. The jury will not be asked to decide ...