Sanford v. Russell

          ORDER REGARDING DEFENDANTS' MOTIONS IN LIMINE

          DAVID M. LAWSON United States District Judge

         This matter is before the Court on numerous motions in limine filed by the parties in advance of the trial in this case. The Court has reviewed the motions and finds that they all are fully briefed and ready for decision, and that in most instances the issues adequately are presented by the briefing, and oral argument would not aid in their disposition. Accordingly, it is ORDERED that the following defendants' motions, which are addressed by this order (ECF No. 179, 180, 182, 183, 185, 187, 190, 193, 194, 195, 197, 198, 201, 203, 204), shall be decided on the papers submitted, and the oral argument on those motions scheduled for June 14, 2019 is CANCELLED. E.D. Mich. LR 7.1(f)(2). The hearing on the parties' remaining pending motions shall proceed as scheduled.

         I.

         The Court notes that the defendants recently filed a notice of appeal of the Court's denial of their motion for summary judgment premised on qualified immunity. Although the Court lacks jurisdiction to entertain any proceedings in this case that implicate the issues presented by the pending appeal, the Court does have limited authority to address ministerial affairs such as the evidentiary housekeeping issues present by the pending motions in limine, which have no bearing on the disposition of the appeal. “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). “It is generally understood that a federal district court and a federal court of appeals should not attempt to assert jurisdiction over a case simultaneously.” Ibid. However, in certain circumstances the district court may retain limited power to address aspects of the case not involved in the appeal, when the court's action “do[es] not threaten the orderly disposition of the interlocutory appeal.” 16A Fed. Prac. & Proc. Juris. § 3949.1 (4th ed. 2016); see also Seeds of Peace Collective v. City of Pittsburgh, No. 09-1275, 2010 WL 2990734, at *3 (W.D. Pa. July 28, 2010) (denying stay as to defendants not subject to appeal of the denial of qualified immunity in a civil rights case). The Court finds that issuing prompt rulings on the parties' evidentiary motions will not affect any rights at stake in the pending appeal.

         II.

         A.

         In their first motion, the defendants ask the Court to “preclude [the plaintiff] from introducing Detroit Police Department's policies and procedures into evidence, ” because policies and procedures do not establish constitutional standards, and, therefore, their terms are irrelevant to the plaintiff's civil rights claims in this case. “Evidence is relevant if: (a) it has any 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. The plaintiff correctly points out, the content of the policies and procedures may be relevant to the determination of willfulness of the defendants' conduct, if it is shown that the defendants were aware of or had been trained in police procedures relating to interrogations, but deliberately did not follow them. The defendants' motion to exclude police policies and procedures (ECF No. 179) therefore is DENIED.

         B.

         Next, the defendants ask the Court to “preclude [the plaintiff] from offering any evidence [about] why he pled [sic] guilty when he claimed privilege related to discussions he had with his attorney?” However, after reviewing the proffered portions of the plaintiff's deposition, the Court finds that there is no indication that the plaintiff refused to answer any questions that were asked under an assertion of privilege. It is true that the plaintiff made clear that he was not waiving his attorney-client privilege with his criminal defense lawyer. But the transcript indicates that defendants' counsel disavowed any intention to inquire about discussions that the plaintiff had with his attorney in the criminal case and chose not to press the topic. The defendants' motion (ECF No. 180) therefore is DENIED for lack of merit in the grounds presented.

         C.

         Next, the defendants ask the Court to exclude photographs of a pistol retrieved from a cell phone that belonged to Michael Robinson, who appears to have been the principal target of the shooting attack on Runyon Street. The defendants contend that there is “no evidence” that the gun in the photographs belonged to the deceased, or that Robinson took the picture. However, the plaintiff has proffered evidence that (1) Vincent Smothers testified that he took a .40 caliber pistol from the Runyon Street home (Robinson's residence), after he found the gun sitting on a table beside Robinson's dead body in the living room, (2) Smothers confessed that he used the same gun to commit another murder for which he was convicted, and the ballistics evidence in that case established a match between bullets taken from the victims and a .40 caliber pistol that was retrieved from a hiding spot where Smothers told police he had concealed the gun, (3) Michael Robinson's cell phone as examined by Michigan State Police (MSP) forensic experts and several photos were recovered, including the one at issue here, and (4) an MSP ballistics expert attested that he viewed the photograph and examined the .40 caliber pistol that was used to commit the other murder to which Smothers confessed, and in his opinion the guns appeared to be the same model, with similar wear patterns, although he could not conclusively state that they were the same gun. The Court observes that the overarching relevance of evidence about the gun is to connect Smothers to the Runyon Street murders and bolster the credibility of his confession. The relevancy of the photograph depends on the fulfillment of a condition of fact, namely, whether the photo depicts the same gun that Smothers picked up at the scene. In that circumstance, the Court need only conclude that proof has been offered that is “sufficient to support a finding that the fact does exist.” Fed.R.Evid. 104(b); United States v. Isiwele, 635 F.3d 196, 199 (5th Cir. 2011) (“Under Rule 104(b), the trial court must admit the evidence if sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity or identification.” (quotations omitted)). Under Rule 401, the bar for establishing relevancy as a general principle is relatively low. Here the relevancy of the gun and the photograph readily are apparent, and the proofs suggested by the plaintiff are sufficient for a jury reasonably to infer that the gun Smothers took from the scene and the gun depicted in a photograph on the decedent's cell phone are the same weapon, particularly since the weapon (and the phone, presumably) both were discovered nearabout the body of the deceased in his own home. Those same proofs also are sufficient for a jury reasonably to conclude that the photograph is what the plaintiff claims it to be, namely a snapshot of the weapon taken from near Robinson's person and later used by Smothers to commit other crimes. Fed.R.Evid. 901(a) (“To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.”). The foundational evidence offered to establish admissibility may be circumstantial, and an item may be authenticated by its distinctive characteristics. Fed.R.Evid. 901(b)(4). The preliminary showing here is sufficient, and the defendant's motion to exclude photographs of a .40 caliber pistol (ECF No. 182) therefore is DENIED.

         D.

         Next, the defendants ask the Court to exclude evidence of certain consent decrees entered in proceedings that predated the events on Runyon Street. The plaintiff indicated in his response that he does not intend to introduce any evidence of those consent decrees at trial, and the ...