United States District Court, N.D. Mississippi, Oxford Division
KELLI DENISE GOODE, Individually, and also as the Personal Representative of Troy Charlton Goode, Deceased, and as Mother, Natural Guardian, and Next Friend of R.G., a Minor, and also on behalf of all similarly situated persons PLAINTIFF
THE CITY OF SOUTHAVEN, et al. DEFENDANTS
MICHAEL P. MILLS UNITED STATES DISTRICT JUDGE
the Court is the motion in limine of the City of Southaven,
Todd Baggett, Jeremy Bond, Tyler Price, Joel Rich, Jason
Scallorn, Stacie J. Graham, Mike Mueller, William Painter,
Jr., Bruce K. Sebring, Joseph Spence, and Richard A.
Weatherford (collectively, the “Southaven
defendants”). Doc. #533.
7, 2018, the Southaven defendants filed the instant motion
along with a supporting memorandum brief. Docs. #533, #534.
The motion contains six subparts. Doc. #534 at 1-2. A week
later, Kelli Denise Goode responded in opposition. Doc. #552.
purpose of a motion in limine is to allow the trial court to
rule in advance of trial on the admissibility and relevance
of certain forecasted evidence. Evidence should not be
excluded in limine unless it is clearly inadmissible on all
potential grounds.” Harkness v. Bauhaus U.S.A.,
Inc., No. 3:13-CV-129, 2015 WL 631512, at *1 (N.D. Miss.
Feb. 13, 2015) (quotation marks and citations omitted).
Rulings on a motion in limine “are not binding on the
trial judge, and the judge may always change his mind during
the course of a trial.” Ohler v. United
States, 529 U.S. 753, 758 n.3 (2000).
Southaven defendants move to exclude at trial: (1)
“Evidence that any other law enforcement or EMS
agencies' policies recommend against the use of hog-tie
or prone restraint”; (2) “Sections in Ron L.
Crew's Law Enforcement Training materials copyrighted
2001-2006 relating to blanket unsupported statements
connecting positional asphyxia to hog-tie restraint”;
(3) “Opinion testimony from witness Charles Rogers
relating to the conduct of Troy Goode during his encounter
with police officers on Goodman Road”; (4)
“Irrelevant and overly prejudicial photographs
…”; (5) “[The use of] the terms
‘hogtie' and/or ‘torture'”; and (6)
“Certain testimony and/or opinions by Robert C. Krause
….” Doc. #534 at 1-2. Each exclusion moved for
will be addressed in turn.
Southaven defendants move to prohibit Kelli from offering
testimony through her police tactics expert, Darrell Coslin,
or any other witness “of other law enforcement
agencies' policies and procedures that recommend against
the use of a hogtie or other prone restraint.”
Id. at 2. The Southaven defendants argue that
because “the Fifth Circuit and courts nationwide have
held that the use of the hogtie restraint or 4-point
restraint is permissible to restrain a suspect who remains
resistant after lower levels of restraint are attempted,
” the fact that “other departments may not
support the use of the hogtie restraint … has no
relevance to the use of the 4-point restraint by Southaven
officers in this case.” Id. at 5. Although the
Southaven defendants do not cite any Federal Rule of Evidence
in support of their argument, it suggests that the challenged
evidence is not relevant under Federal Rules of Evidence 401
and 402 and that, even if relevant, the evidence should be
excluded under Federal Rule of Evidence 403—or pursuant
to the Court's inherent authority—given its danger
of confusing or misleading the jury. Id.
response, Kelli contends that the instant motion should not
be considered on the merits because it “seeks to
circumvent the deadline for Daubert motions by
mischaracterizing [the motion as] a Motion in Limine.”
Doc. #552 at 2. Moreover, Kelli argues that the instant
motion would fail even if considered on the merits because it
selectively cites Fifth Circuit caselaw. Id. at 3.
Case Management Order set a January 23, 2018, deadline for
submitting Daubert challenges. Doc. #389. As Kelli
argues, other courts have determined that challenges to an
expert's use of police policies implicates Rule 702 and
Daubert. See Clayton Cty. v. Segrest, 775
S.E.2d 579, 584 (Ga.Ct.App. 2015) (applying state analogue to
Daubert to determine the admissibility of police
policies relied on by expert witnesses). However, even if
this were not an untimely Daubert motion, it would
nevertheless fail on the merits.
Rule of Evidence 401 provides that evidence is relevant if it
has any tendency to make a fact of consequence in determining
the action more or less probable than it would be without the
evidence. “Irrelevant evidence is not
admissible.” Fed.R.Evid. 402. Federal Rule of Evidence
403 provides that “[t]he court may exclude relevant
evidence if its probative value is substantially outweighed
by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue
delay, wasting time, or needlessly presenting cumulative
evidence.” The rule that a “district court is
accorded a wide discretion in determining the admissibility
of evidence … is particularly true with respect to
Rule 403 since it requires …balancing of probative
value and prejudice, potentially to exclude as unduly
prejudicial some evidence that already has been found to be
factually relevant.” Sprint/United Mgmt. Co. v.
Mendelsohn, 552 U.S. 379, 384 (2008).
Court has broad discretion to manage the conduct of a trial
and the evidence presented by the parties—both under
the Federal Rules of Evidence and as part of the Court's
inherent authority.” Apple Inc. v. Samsung Elecs.
Co., No. 11-CV-01846, 2018 WL 1586276, at *18 (N.D. Cal.
Apr. 2, 2018). This challenge implicates two inquiries: Rule
403 regarding testimony and the Court's inherent
authority regarding attorney conduct. See Navellier v.
Sletten, 262 F.3d 923, 941-42 (9th Cir. 2001) (limits on
parties' presentation of evidence within “the broad
discretion that the district court had to manage the
trial”); Anderson v. Ford Motor Co., No.
2:06-CV-741, 2014 WL 4655289, at *1 (D. Utah Sept. 16, 2014)
(prohibiting plaintiff from using several terms to describe
the defendant pursuant to Rule 403). As a threshold matter,
an attorney's characterization or description of a
restraint is not evidence, so it is not clear that Rule 403
would support excluding the use of the term
“hogtie.” To the extent that Rule 403—or,
alternatively, the Court's inherent authority—might
apply to this issue, Southaven has not briefed an argument
for the Court to rule on. See Dennis v. ESS Support
Servs. Worldwide, No. CV 15-690, 2016 WL 1408580, at *2
(E.D. La. Apr. 11, 2016) (“While brevity is typically a
virtue, the Court will not address the merits of
defendants' Rule 403 challenge, without a more detailed
description of Rule 403's applicability to specific
aspects of [the challenged witness'] report and
testimony.”). Thus, the Court cannot grant this motion
pursuant to either Rule 403 or its inherent authority due to
support of its motions, the Southaven defendants do cite to
cases in which police officers who had placed a detainee in a
four-point restraint were granted qualified immunity from
claims brought under § 1983. “Claims based on
violations of police procedure, however, are not actionable
under § 1983.” Medina v. Cram, 252 F.3d
1124, 1133 (10th. Cir. 2001). Thus, the Southaven defendants
cite a series of cases addressing individual officer
liability that are not on- point regarding whether a
municipality is liable under Monell for its policies
or procedures, which are relevant as to Sotuhaven's
Monell liability. Any danger under Rule 403 that
such evidence could confuse or mislead the officers with
regard to the liability of individual officers can be cured
through a limiting instruction. See United States v.
Guerra, 402 Fed.Appx. 973, 975 (5th Cir. 2010)
(“the risk of unfair prejudice is substantially lowered
by a district court's limiting instruction”). For
these reasons, the Southaven defendants' first ground is
Southaven defendants move to exclude the bolded portion of
Police Subject Control - Basic Manual, excerpted
below, that is written by Ron L. Crew and used by the
Mississippi Law Enforcement Training Academy, which trains