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Kellom v. Quinn

United States District Court, E.D. Michigan, Southern Division

September 4, 2019

Nelda Kellom, as personal representative of the estate of Terrance Kellom, deceased, Plaintiff,
v.
Mitchell Quinn, Defendant.

          OPINION & ORDER ON MOTIONS IN LIMINE

          Sean F. Cox United States District Court Judge

         Terrance Kellom was shot and killed when a United States Marshal Detroit Fugitive Apprehension Team was attempting to arrest him at a house in Detroit, Michigan on April 27, 2015. Thereafter, his Estate and his relatives filed this action, asserting multiple claims against several Defendants. There is only one remaining claim in this action - the Estate's excessive force claim against Defendant Mitchell Quinn. That sole claim is scheduled to proceed to a jury trial on October 15, 2019. The parties have filed multiple pretrial motions in limine.

         The adequacy of the state and federal criminal investigations that occurred after the shooting is not at issue. Rather, as this Court reminded counsel at the August 19, 2019 hearing on these motions, the excessive force claim that remains in this action is governed by Graham v. Connor, 490 U.S. 386, 394-95 (1989). That is, the reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene. Id. at 394-54. The force used must be objectively reasonable in light of the particular facts and circumstances that confronted the officers. Id. Important considerations include the severity of the crime, whether the suspect poses an immediate danger to the officers or others, and whether the suspect is actively resisting arrest or attempting to flee. Id.

         Accordingly, as explained below, the Court shall deny the Estate's motions in limine that ask the Court to preclude evidence of relevant facts and circumstances that confronted Agent Quinn on the day of the shooting. The Court shall grant Quinn's motion to preclude reference to dismissed claims and counsel for the Estate may not present evidence, or make assertions, regarding the adequacy of the criminal investigations. In addition, the Court shall grant Quinn's “Motion Regarding Previous Assertion Of Fifth Amendment Rights” and Plaintiffs' Counsel is precluded from arguing or implying at trial that Quinn should have been interviewed during the criminal investigations. The Estate's expert shall be precluded from offering any opinions as to the adequacy of the criminal investigations. Quinn's motion seeking a “ruling that law enforcement reports and conclusions are not inadmissible hearsay” under Fed.R.Evid. 803 shall be denied as to his challenged exhibits.

         This Opinion & Order also sets forth this Court's rulings on the parties' additional motions in limine, that address a variety of other issues.

         BACKGROUND

         Terrance Kellom was shot and killed when a United States Marshal Detroit Fugitive Apprehension Team was attempting to arrest him on an outstanding arrest warrant for armed robbery. Thereafter, his Estate and his relatives filed this action, asserting multiple claims against several Defendants. A number of claims were dismissed in connection with motions to dismiss. Then, following the close of discovery, Defendants filed summary judgment motions as to the remaining claims.

         In an Opinion and Order issued on May 21, 2019, this Court denied Quinn's request for summary judgment as to the Estate's excessive force claim, asserted in Count I, as a Bivens claim. As to that claim, this Court concluded that, construing the evidence in the light most favorable to the Estate, there is a genuine issue of material fact as to whether Defendant Quinn committed a constitutional violation by virtue of having used excessive force. That sole claim is proceeding to a jury trial. As to all remaining claims, this Court granted summary judgment in favor of Defendants.

         Those dismissed claims, asserted by the Estate and the Decedent's relatives, included: 1) excessive force claims against Eaton and Fitzgerald under Bivens and § 1983; 2) conspiracy claims under § 1985 and Bivens; 3) a wrongful death claim under Michigan law; 4) a claim for intentional infliction of emotional distress under Michigan law; 5) a Steagald claim, asserting that the officers' entry into the home was unlawful; and 6) a Monell municipal liability claim.

         The Estate's excessive force claim against Defendant Quinn is set to proceed to a jury trial on October 15, 2019. The parties have filed numerous motions in limine.

         In addition, on August 15, 2019, the parties filed trial briefs, which contain each party's theory of the case. (ECF Nos. 178 & 180). As the Court explained at the Joint Final Pretrial Conference, this Court typically uses those case theories during the jury selection process, to give potential jurors an overview of the case.

         Plaintiff's trial brief contains the following as the Estate's theory of its excessive force claim in this case:

Defendant and several other law enforcement [sic] entered [Terrance Kellom's][1]father's home to arrest [him] on a warrant for a charge that [Terrance had] never been convicted of. There, Defendant approached [Terrance] with reckless disregard for his constitutional rights and his life. Defendant shot [Terrance] four times unjustly and without basis, killing him. Defendant's shooting was excessive force as [Terrance] had no weapon or item that could be used as a weapon, was surrounded by armed law enforcement, and was in a house that was surrounded by armed law enforcement. Defendant and his fellow law enforcement [sic] quickly realized the shooting of Plaintiff was unjustifiable and so together falsely claimed that Plaintiff had a hammer and was coming at Defendant to strike him.
A sham investigation into Plaintiff's killing followed. Although three separate organizations claimed to have done investigations, they all relied on the work of one investigator and worked to cover up the truth. During the sham investigation, not a single question was posed to the law-enforcement witnesses, including Defendant, about the shooting despite the fact that all non-law enforcement witnesses consistently stated that Plaintiff did not have a hammer. The detective assigned as lead investigator had never led a homicide investigation before and although he actually recommended a warrant for the arrest of Defendant, the request was rejected and he never inquired why. There was no deadly weapon, the shooting was unjustified, excessive force, [sic] used in violation of Plaintiff's constitutional rights.

(ECF No. 180 at 1-2) (emphasis added). Defendant Quinn's Trial Brief contains the following as his theory of the case:

On April 27, 2015, members of the Detroit Fugitive Apprehension Team (“DFAT”) were searching for a fugitive named Terrance Kellom, who was a felon wanted on an arrest warrant for robbing a pizza deliveryman at gunpoint. That morning, the DFAT team learned that Terrance had visited his girlfriend the day before, had broken all of the windows on her car, and threatened to return to kill her and her mother. The DFAT team also learned that Terrance was likely staying at this father's house at 9543 Evergreen Road in Detroit.
After one DFAT member observed Terrance exit and then reenter the house on Evergreen Road, the DFAT team approached the house to arrest him. During a search of the house, officers found Terrance hiding in a second floor attic crawl space. Because Terrance refused to comply with officer commands, was shouting at the officers, and was ripping up ductwork with a hammer, the officers requested back up as well as a taser and a shield. Defendant Mitchell Quinn entered the house in response to the request for backup, and then he walked toward a bedroom on the first floor. As he approached, Terrance dropped into the first floor bedroom through a whole in the attic floor, and then Terrance ran at Agent Quinn with the hammer raised above his head. Fearing for his safety and the safety of others, Agent Quinn fired his handgun in self-defense, hitting Terrance four times. Because his actions were objectively reasonable and justified by the circumstances, Agent Quinn did not violate any constitutional rights.

(ECF No. 178 at 1-2) (emphasis added).

         ANALYSIS

         The parties filed numerous motions in limine, that were fully briefed by the parties, and were heard by the Court on August 19, 2019.

         I. The Estate's Motions To Prohibit Certain Evidence Relating To The Decedent (ECF No. 135) And Motion To Prohibit Reference To The Name Of The Task Force (ECF No. 136)

         In the two motions filed as ECF Numbers 135 and 136, the Estate asks the Court to preclude evidence of, or reference to, all of the following: 1) the Decedent's arrest warrant for armed robbery; 2) the Decedent being on probation for a weapons offense; 3) evidence regarding the Decedent making threats and breaking car windows the day prior to the incident; 4) the Decedent's use of marijuana; 5) the Decedent's alleged relationship with Chevon Jones; and 6) the name of the task force that was involved in the incident at issue.

         As set forth below, no ruling is necessary at this time as to evidence of two issues (the Decedent's alleged marijuana use and relationship with Ms. Jones) and the motion is DENIED in all other respects.

         A. The Decedent's Use Of Marijuana

         The Estate seeks to preclude evidence of the Decedent's alleged use of recreational marijuana. (See caption of motion and Pl.'s Br. at 7 & 10).

         In response to this issue, Quinn states that he does not oppose the request to preclude evidence of the Decedent's[2] alleged use of marijuana at this time, but reserves the right to revisit the issue depending upon how the proofs play out.

         As such, no ruling on this issue is necessary at this time.

         B. The Decedent's Alleged Romantic Relationship With Ms. Jones

         The Estate seeks to preclude Quinn from introducing any evidence or reference to the Decedent's alleged romantic relationship with Chevon Jones.

         In response to this request, Quinn states that it would be premature to make a ruling as to this evidence. Quinn states that he currently does not intend on introducing evidence of the Decedent's relationship with Jones during trial but states that could change, based on how the Estate proceeds at trial:

At this time, Agent Quinn does not intend to introduce Terrance's relationship with Cheffon Jones during his rebuttal case. However, that information could become relevant and admissible, for example, if Ms. Jones take the stand, because her relationship with Terrance is relevant to her credibility as a witness under Rule 607. As another example, if plaintiff, or other witnesses called by plaintiff, manage to introduce improper character evidence of Terrance that he was a family man and loyal boyfriend, evidence of his relationship with Ms. Jones is relevant to rebut that notion.

(Def.'s Br. at 9).

         As such, a ruling on this issue is not necessary at this time.

         C. The Decedent's Arrest Warrant For Armed Robbery, His Being On Probation, His Alleged Threats/Breaking Of Windows, And The Name Of The Task Force Involved In This Case

         The Estate also asks the Court to preclude evidence of, or reference to, the following: 1) the Decedent's arrest warrant for armed robbery; 2) that the Decedent was on probation on the date of the incident, for having carried a concealed weapon without a license; 3) testimony that Janay Williams and/or her mother told task force members that the Decedent had threatened them, and broken out car windows with a hammer, on the day before the incident; and 4) the name of the task force at issue (the Detroit Fugitive Apprehension Team). The Estate asserts that it brings this motion under Fed.R.Evid. 401, 402, 403, and 404(b), asserting this evidence is not relevant, is unduly prejudicial, and would be improper character evidence.

         Quinn's brief notes that it is undisputed that on the date of the shooting: 1) the DFAT officers were looking for the Decedent because he was wanted on an arrest warrant for armed robbery and for a weapons offense; 2) the Decedent's girlfriend (Janay Williams) and her mother (Adrienne Williams) told DFAT officers that the Decedent had threatened to kill Adrienne because she would not let him stay at her house any longer, and that Janay informed them the Decedent had used a hammer to smash the windows of her car on the day before the incident. (See ECF Nos. 77 and 106 at ¶¶ 6-7 & 10).

         Quinn asserts that evidence as to those facts, and the other facts the Estate wishes to exclude, is clearly relevant as to the totality of the circumstances that must be considered in determining if Quinn acted reasonably or used excessive force. That is, they are key components of the “totality of the circumstances” that the jury must consider in determining whether Quinn used excessive force on the date of the incident. The Court agrees.

         Quinn is seeking to use this evidence for a proper purpose because it is relevant to the determination of whether he used excessive force. See, e.g., Davis v. Nichols, 191 F.3d 451, 1999 WL 777548 (6th Cir. 1999). To defend against the Estate's allegation of excessive force, Quinn seeks to demonstrate that his conduct was objectively reasonable in light of the facts and circumstances that confronted him. Id.

         The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene. Graham v. Connor, 490 U.S. 386, 394-95 (1989). The force used must be objectively reasonable in light of the particular facts and circumstances that confronted the officers. Id. Important considerations include the severity of the crime, whether the suspect poses an immediate danger to the officers or others, and whether the suspect is actively resisting arrest or attempting to flee. Id.

         That the DFAT officers were aware that the Decedent had an arrest warrant for armed robbery and a weapons offense, and was on probation for a weapons offense, is clearly relevant to the facts and circumstances confronted by those officers, as it goes to the severity of the crime the Decedent was wanted for and whether he posed an immediate threat to the officers who were attempting to arrest him. The same is true of evidence that the officers had been advised that the Decedent had threatened to kill his girlfriend and her mother, and broken the windows out of her car with a hammer, the day just prior to the incident.

         Quinn is not seeking to introduce evidence of the Decedent's conduct prior to the shooting as character evidence under Fed.R.Evid. 404. Rather, he is seeking to introduce this evidence to demonstrate that his conduct was reasonable in light of the facts and circumstances that confronted him on the day of the shooting. The evidence is admissible for this purpose. Davis, supra, at *3.

         The Court rejects the Estate's assertion that this evidence would be unfairly prejudicial under Rule 403. A district court's Rule 403 balancing is an evidentiary ruling that is reviewed for abuse of discretion. United States v. Bonds, 12 F.3d 540, 547 (6th Cir. 1993). “Unfair prejudice” does not mean the damage to a party's case “that results from the legitimate probative force of the evidence; rather it refers to evidence which tends to suggest decision on an improper basis.” Id. Here, the evidence is clearly probative to the facts and circumstances with which Quinn was faced with and would not suggest a decision on any improper basis.

         The Court shall also deny the Estate's request to preclude all references to the name of the task force that was involved in the incident.[3] The nature of that task force's work is also relevant as to the reasonableness inquiry. Moreover, as a practical matter, it would be nearly impossible for Quinn to provide a defense, and logically explain the sequence of events that occurred on the date of the incident, if the Court were to grant this request.

         Accordingly, this motion is DENIED as to this evidence.

         II. The Estate's Motion To Prohibit Defendant Quinn From Using Media Footage (ECF No. 137)

         In this motion, the Estate seeks to preclude Quinn from presenting or referencing news media coverage of this case, pursuant to Fed.R.Evid. 401 and 403 as not relevant and unfairly prejudicial. The Estate also seeks to preclude any statements made by reporters and media personalities as inadmissible hearsay.

         In response, Quinn states that he “does not intend to present the commentary of news anchors and journalists, which seems to be the thrust of” this motion. But he does intend to use various video clips as possible impeachment evidence, under Fed.R.Evid. 613(b), if any witnesses testify inconsistently with a prior statement. Quinn notes that after the shooting, several individuals listed on Plaintiff's witness list made statements about the incident to the media, Kevin Kellom in particular. Those video clips include videos of Kevin Kellom, wherein he makes statements about what happened on the day of the shooting. Quinn correctly notes that such evidence would not constitute hearsay if it is not being used for the truth of the matter asserted, but rather, for impeachment purposes.

         To the extent that Plaintiff's motion asserts that the video clips are inadmissible because they would violate the confrontation clause of the Sixth Amendment, that argument is misplaced. As concisely explained in Peretti, “[b]y its own unequivocal terms, the constitutional right of confrontation applies only ‘[i]n criminal proceedings,' U.S. Const. amend. VI (emphasis added). It is, therefore, not applicable in the present administrative, ie., civil, context.” Peretti v. National Transp. Bd. F.A.A., 1993 WL 261883 (10th Cir. 1993) (citations omitted); see also United States v. Parcel of Real Prop. Known as 6109 Grubb Rd., 886 F.2d 618, 621 (3d Cir. 1989).

         The Court DENIES THIS MOTION WITHOUT PREJUDICE. If Quinn seeks to introduce such videos as impeachment evidence at trial, Plaintiff may raise a particularized 403 objection that shall be considered by the Court.

         III. The Estate's Motion To Preclude Evidence Of, Or Reference To, Teria Kellom's Disability Or Social Security Income (ECF No. 138) And Nelda Kellom's Bankruptcy (ECF No. 139)

         Teria Kellom is the adult sister of the Decedent and she was present inside the house on the date of the shooting. The Estate's motion states that Teria has a learning disability that entitles to her Social Security Disability benefits. In its motion filed as ECF Number 138, the Estate asks the Court to prohibit Defense Counsel and Defendants' witnesses from referencing Teria Kellom's disability or disability income.

         In response, Quinn states that he does not oppose this motion at this time, but he reserves the right to revisit the issue at trial if the Estate opens the door by trying to bolster Teria's intelligence, recall, or credibility as a witness. That is, Defendant Quinn does not plan to reference Teria's learning disability during trial but reserves the right to address the issue if the Estate opens the door to that issue.

         As such, no ruling is necessary at this time as to this first motion.

         In its motion filed as ECF Number 139, the Estate asks the Court to prohibit Defense Counsel and Defendants' witnesses from referencing the bankruptcy of Nelda Kellom.

         In response, Quinn states that he does not oppose this motion at this time but reserves the right to revisit this issue at trial, should the Estate open the door by discussing Nelda Kellom's motivations for filing this lawsuit or by discussing her finances. That is, Defendant Quinn does not plan to reference Nelda Kellom's bankruptcy during trial but reserves the right to address the issue if the Estate opens the door to that issue.

         As such, no ruling on this second motion is necessary at this time.

         II. Defendant Quinn's Motions Regarding Criminal Investigations Of Incident And Quinn's Assertion Of Fifth Amendment Rights

         Two of Quinn's motions in limine relate to the state and federal investigations, that considered whether Quinn or others would face criminal charges related to the shooting, and Quinn's assertion of his Fifth Amendment rights during those investigations. In the first motion, Quinn asks the Court to rule that investigative reports, that concluded Quinn acted in self defense, are not hearsay under Fed.R.Evid. 803(8). In the second motion, Quinn asks the Court to preclude the Estate's counsel from arguing that those investigations were botched or inadequate or reference that Quinn declined to be interviewed during them.

         A. Motion Seeking Ruling That Law Enforcement Reports/Conclusions Are Not Inadmissible Hearsay Under Fed.R.Evid. 803(8) (ECF No. 132)

         In this motion, Defendant Quinn seeks a pretrial ruling that multiple law enforcement reports and conclusions are not inadmissible hearsay under Fed.R.Evid. 803(8). The specific exhibits that Quinn seeks this ruling as to are: Defendant's exhibits 6 through 11, 15 through 18, 20, 21, 33, and 34-49.

         Notably, the Estate's response states that “Plaintiff does not object to Defendant's introduction of their Exhibits DTX-6 through DTX-11” but objects to the remaining exhibits. (ECF No. 152 at PageID.3603). Thus, the Court shall GRANT the motion as to Defendant's exhibits 6 through 11.

         The Court will therefore consider Defendant Quinn's motion as to the remaining exhibits, which include: 1) DTX-16, “DHS-OIG Report of Investigation, ” a report that concludes that Quinn “using appropriate deadly force” fired his weapon in an attempt to stop Kellom, who had a “deadly weapon in his hands, ” and notes that both state and federal prosecutors declined to prosecute; 2) DTX-17, “DHS-OIG Summary of Search Warrant Activities, ” that discusses an investigator being able to verify facts set forth in witness statements; 3) DTX-18, Declination by U.S. Attorney's Office, a one-page document stating the U.S. Attorney reviewed the OIG's report and findings of Wayne County Prosecutor and declines to prosecute Quinn; 4) DTX-21, a one-page form denying issuance of a warrant against Quinn for the reason “officer's use of force justified - self-defense/defense of others”; and 5) DTX 33 and 34-49, the Wayne County Prosecutor's Press Release and Powerpoint presentation, and individual slides from same, a lengthy document that concludes Quinn “acted in lawful self-defense.”

         Subsection (8) of Fed.R.Evid. 803 provides that “[t]he following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:”

(8) Public Records. A record or statement of a public office if:
(A) it sets out:
(I) the offices's ...

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