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Becker v. City of Evansville

United States District Court, S.D. Indiana, Evansville Division

November 1, 2016

JAMIE BECKER, Plaintiff,
v.
CITY OF EVANSVILLE, and ZACHARY ELFREICH, Defendants.

          ORDER ON PENDING MOTIONS

          TANYA WALTON PRATT, JUDGE

         This matter is before the Court on Plaintiff Jamie Becker's (“Becker”) Motion in Limine (Filing No. 153) and Motion to Renumber Counts for Trial (Filing No. 154). Becker asks the Court to prohibit the Defendants from introducing into evidence his prior criminal convictions for intimidation and battery by means of a deadly weapon. Additionally, Becker asks the Court to renumber the counts in his Amended Complaint prior to trial “for the purpose of clarity.” For the following reasons, Becker's Motion in Limine is denied, and the Motion to Renumber Counts for Trial is granted.

         I. LEGAL STANDARD

         The Court excludes evidence on a motion in limine only if the evidence clearly is not admissible for any purpose. See Hawthorne Partners v. AT&T Technologies, Inc., 831 F.Supp. 1398, 1400 (N.D. Ill. 1993). Unless evidence meets this exacting standard, evidentiary rulings must be deferred until trial so questions of foundation, relevancy, and prejudice may be resolved in context. Id. at 1400-01. Moreover, denial of a motion in limine does not necessarily mean that all evidence contemplated by the motion is admissible; rather, it only means that, at the pretrial stage, the Court is unable to determine whether the evidence should be excluded. Id. at 1401.

         II. BACKGROUND

         The facts of this case have been set forth in numerous prior filings. The Court begs the parties' pardon because the background below is copied and pasted from prior filings.

         Becker is a resident of Evansville, Indiana. Defendant Zachary Elfreich (“Officer Elfreich”) is a police officer for the Evansville Police Department (“EPD”). Defendant City of Evansville is a political subdivision of the State of Indiana for which Officer Elfreich serves as a police officer. Becker has asserted that Officer Elfreich used excessive force in effectuating his arrest pursuant to an outstanding arrest warrant. He further alleges that the City of Evansville has demonstrated a custom and policy of deliberate indifference to the constitutional rights of its citizens.

         At the time of the incident between Becker and Officer Elfreich, the City of Evansville had in effect a “Canine Unit Policy” codified as EPD Standard Operating Procedure 359.03, wherein police dogs are trained to bite and hold when apprehending a suspect and further authorizes the dog's handler to unleash the dog resulting in the dog not being under the officer's complete control and within the line of sight of the officer. The City of Evansville also has a policy and practice of training their canine handlers to recall the dog before it bites a person if the officer observes the suspect surrendering while the dog is approaching the suspect.

         During the early evening hours of March 11, 2011, Becker was at his mother's house, where he lives, located at 617 North Hess Avenue, Evansville, Indiana. Becker was in bed in his bedroom upstairs with his girlfriend. He had recently returned home from work. Officer Elfreich and his canine partner, Axel, along with other EPD officers arrived at the residence to execute an arrest warrant for Becker. An arrest warrant had been issued for an incident that occurred approximately a month earlier. Becker had threatened to kill his brother-in-law while he held a large kitchen knife to his neck.

         When Officer Elfreich and the other police officers arrived at the Becker residence, they spoke with Becker's mother, Brinda Becker, and asked if Becker was home because they had a warrant for his arrest. Brinda Becker advised that he was upstairs asleep and said she would go get him. Brinda Becker went to the stairs leading to the second floor of the house and yelled upstairs to Becker that police officers were there to arrest him on a warrant. Becker responded that he was getting dressed and would come downstairs.

         After Becker did not promptly appear, Officer Elfreich prepared to use Axel and yelled from the entryway of the house, “Police department K-9, come out now or I will release my dog and you will get bit.” Approximately thirty seconds after issuing the warning and hearing no response, Officer Elfreich unleashed Axel and instructed him to find Becker, knowing that Axel would bite and hold the first person he encountered. Like all of the EPD's dogs, Axel was trained in the “bite-and-hold” technique. On command, Axel will search for a person, bite the first person he finds, and hold that person with his teeth until Officer Elfreich commands him to release.

         Once unleashed, Axel ran from the front door to the back of the house and began up the stairs. At the same time, Becker and his girlfriend had begun coming down the stairs. Becker was holding his hands on top of his head so the police would know he was surrendering and was not a threat to their safety. After walking a few steps, Becker reached a landing where he felt Axel brush his left leg and then bite him. Becker shouted to Officer Elfreich to call off Axel because he was coming downstairs. Officer Elfreich ran to the steps, following Becker's voice. Officer Elfreich saw that Axel had bitten Becker's leg but did not command him to release Becker; rather, he commanded Becker to get on the floor.

         After he was bitten, Becker remained standing with his hands on his head. Officer Elfreich grabbed Becker by the front of his shirt collar and pulled him down the remaining stairs. Becker's eyeglasses fell off his face, and he landed hard on the floor on his chest and head. Axel, who had lost his grip when Officer Elfreich pulled Becker down the stairs, ran to Becker and started biting Becker's left calf and shook his head violently. Becker lay still on the floor with his hands behind his back, not resisting his arrest. Officer Elfreich placed his knee in Becker's back, handcuffed him, and only then ordered Axel to release his grip. Axel complied with the order to release his bite on Becker. Becker alleges that Axel bit him for approximately a minute. Someone called for an ambulance, and when advised that an ambulance would take approximately ten minutes, an EPD officer placed Becker into a police cruiser, and he was taken to the hospital where he underwent surgery for the injuries he suffered. The matter is now scheduled for trial on Becker's claims of battery, negligence and excessive force.

         III. ...


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