United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DENYING WITHOUT
PREJUDICE PLAINTIFF'S MOTION IN LIMINE NO. 1
matter is before the Court on Plaintiff's Motion in
Limine No. 1: To Exclude Testimony or Evidence of Prior Civil
Cases, Prior “Propensity to Get into Physical
Altercations, ” Prior Allegations against Employees of
the City of Albuquerque, and Other Irrelevant Testimony or
Evidence (Motion in Limine No. 1), filed April 1, 2015. (Doc.
22). Defendants filed a response on April 16, 2015. (Doc.
29). Plaintiff filed a Notice of Completion of Briefing on
June 15, 2015. (Doc. 45). Having considered the briefing and
the relevant law, the Court now denies the Motion in Limine
No. 1 without prejudice.
seeks to exclude testimony and evidence concerning 1)
Plaintiff's prior civil rights cases against the City of
Albuquerque (City) and police officers, 2) his prior
unrelated citizen complaints to the Police Oversight
Commission and the Independent Review Officer, parties
responsible for investigating claims of misconduct by police
officers, and 3) physical altercations Plaintiff may have
been involved in unrelated to the conflict that led to this
litigation. (Doc. 22) at 2. Plaintiff argues that any
evidence related to these topics would be irrelevant to a
trial in this matter. Id. at 3. Moreover, even if
the Court determined this information is relevant, Plaintiff
asserts that any probative value is substantially outweighed
by the risk of prejudice. Id. Plaintiff claims that
Defendants seek to offer this “propensity”
evidence as impermissible proof of bad character.
Id. at 3-9.
on the other hand, argue that this evidence is clearly
discoverable, relevant, and admissible to show “motive,
opportunity, intent, preparation, plan, knowledge, identity,
lack of mistake, lack of accident and modus operandi”
as well as “habit.” (Doc. 29) at 5-6. However,
Defendants claim they need additional discovery to obtain the
evidence necessary to fully address Plaintiff's arguments
related to inadmissibility. (Doc. 29) at 3, 6. Defendants
request that the Court either deny or stay Plaintiff's
Motion in Limine No. 1 until the close of discovery.
Id. Discovery is currently stayed in this matter
pending rulings on Defendant Powdrell and Defendant
City's Motions for Summary Judgment, which raise the
defense of qualified immunity. (Docs. 49 and 73). The Court
recently issued rulings on the pending summary judgment
motions. (Docs. 123 and 120).
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 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.” Fed.R.Evid. 403.
Tenth Circuit has reminded district courts that they should
be “mindful” that “exclusion of evidence
under Rule 403 that is otherwise admissible under the other
rules is an extraordinary remedy and should be used
sparingly.” United States v. Smalls, 605 F.3d
765, 787 (10th Cir. 2010). Evidence should be excluded under
Rule 403 only if the probative value is
substantially outweighed by unfair prejudice.
Sec. & Exch. Comm'n v. Peters, 978 F.2d
1162, 1171 (10th Cir. 1992) (emphasis added). In performing
the 403 balancing test, “the court should give the
evidence its maximum reasonable probative force and its
minimum reasonable prejudicial value.” Id.
(internal quotation omitted). “Rule 403 does not
protect a party from all prejudice, only unfair
prejudice.” Deters v. Equifax Credit Information
Servs., Inc., 202 F.3d 1262, 1274 (10th Cir. 2000).
of other acts may be admissible for purposes other than proof
of a defendant's bad character or general propensity to
commit a crime, “such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident.” Fed.R.Evid. 404(b).
Evidence admitted under Rule 404(b) must satisfy a
1) the evidence must be offered for a proper purpose; 2) the
evidence must be relevant; 3) the trial court must make a
Rule 403 determination of whether the probative value of the
similar acts is substantially outweighed by its potential for
unfair prejudice; and 4) pursuant to Rule 105, the trial
court shall, upon request, instruct the jury that evidence of
similar acts is to be considered only for the proper purpose
for which it was admitted.
U.S. v. Zamora, 222 F.3d 756, 762 (10th Cir. 2000).
Rule 404(b) generally excludes evidence of other acts offered
to prove that a person acted similarly on other occasions,
based on the assumption that any slight probative value of
such evidence is outweighed by the risk of prejudice.
Coletti v. Cudd Pressure Control, 165 F.3d 767, 776
(10th Cir. 1999) (explaining that testimony relevant to
motive or intent may still be disallowed if unduly
other hand, a party may present evidence of a person's
“habit” for the purpose of proving that the
person acted in conformity with that habit. Fed.R.Evid. 406.
Habit has been defined as “a regular practice of
meeting a particular kind of situation with a certain type of
conduct, or a reflex behavior in a specific set of
circumstances.” Perrin v. Anderson, 784 F.2d
1040, 1046 (10th Cir. 1986) (internal citation omitted).
Accordingly, while evidence of past wrongs or acts is
inadmissible to establish a character trait and “show
action in conformity therewith” under Rule 404(b), the
same evidence may be admissible under Rule 406.
courts have the power to exclude evidence only when evidence
is clearly inadmissible on all potential grounds. Cf.
Luce v. United States, 469 U.S. 38, 41 n. 4 (1984)
(describing federal district courts' authority to make in
limine rules pursuant to authority to manage trials). This
power to exclude even relevant evidence is
“extraordinary” and should “be exercised
sparingly.” Boardwalk Apartments, L.C. v. State
Auto Prop. And Cas. Ins. Co., 816 F.3d 1284, 1289 (10th
Cir. 2016) (internal citation and quotation omitted).
“[I]n many cases, evidentiary rulings should be
deferred until trial so that questions of foundation,
relevancy and potential prejudice may be resolved in the
proper context.” Garcia v. Crossmark, Inc.,
157 F.Supp.3d 1046, 1054 (D.N.M. 2015) (internal citation and
Complaint for Violations of the Tort Claims Act and
Deprivation of Civil Rights (Complaint), Plaintiff
acknowledges a previous arrest and lawsuit resulting from his
prior actions in support of his “strong religious
conviction …to extend help
to…‘metrocampers'…in the Albuquerque
area….” (Doc. 1-2) at ¶ 18. Plaintiff
further states that he “has made it a point to stop and
video-record and ask questions when he sees a metrocamper who
may be being harassed, arrested, or harmed by
anyone-including security officers….”
Id. at ¶ 22. This routine behavior is the very
reason Plaintiff approached Defendants Andy Fitzgerald and
Akeem Powdrell as they were detaining a homeless man
(later identified as Manuel Bustamante) on August 30, 2012.
Id. at ¶ 26. The subsequent altercation between
Plaintiff and the TSOs resulted in this litigation. (Doc.
these circumstances, Plaintiffs prior civil rights cases
against the City and police officers and Plaintiffs previous
citizen complaints of misconduct by police officers are
likely relevant under the broad scope of Fed.R.Evid. 401.
Likewise, evidence of Plaintiff s prior physical altercations
may also be probative. However, without more specific details
regarding the nature of such prior claims, complaints,
altercations, and whether Defendant Fitzgerald was aware of
those actions, the Court is unable to adequately evaluate
whether any potentially probative value is substantially
outweighed by the dangers of, inter alia, prejudice,
confusion, or delay, as described in Fed.R.Evid. 403.
Furthermore, absent precise details about the evidence, the
Court cannot appropriately weigh ...