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Cole v. Perry

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

May 22, 2019

GERALD COLE, Plaintiff,



         This cause is before the Court on the Defendants' motion on reconsider (Dkt. No. 195), both parties' motions in limine (Dkt. No. 171; Dkt. No. 179) and objections to exhibits and witnesses (Dkt. No. 185; Dkt. No. 187). The Court, being duly advised, rules as follows.


         The Court has “discretion to reconsider an interlocutory judgment or order at any time prior to final judgment.” Mintz v. Caterpillar Inc., 788 F.3d 673, 679 (7th Cir. 2015) (citations omitted). In that context, “‘[a] judge may reexamine his earlier ruling . . . if he has a conviction at once strong and reasonable that the earlier ruling was wrong, and if rescinding it would not cause undue harm to the party that had benefited from it.'” HK Sys., Inc. v. Eaton Corp., 553 F.3d 1086, 1089 (7th Cir. 2009) (quoting Avitia v. Metropolitan Club of Chicago, Inc., 49 F.3d 1219, 1227 (7th Cir. 1995)).

         The Defendants move to reconsider the Court's April 30, 2019, entry granting the Plaintiff's motion in limine, particularly regarding its ruling that the testimony of Sergeant Michael Daley, Lieutenant Dale True, and James Borden be excluded. Dkt. No. 181. The Defendants spend much of their motion arguing that the Court misapplied United States v. Brown, 871 F.3d 532 (7th Cir. 2017), which the Court has already addressed. In addition, the Defendants argue that Court failed to address James Borden's testimony on “human behavior and human factors, ” and instead focused solely on behavioral science. The Court reminds the Defendants that according to their own documents, “[b]ehavioral science is a branch of science . . . that deals with human action and often seeks to generalize about human behavior in society, ” Dkt. No. 181 at 9 (quoting Dkt. No. 116 at 12) (internal quotation marks omitted). The Defendants, however, make two arguments that the Court will address.

         A. Relevancy of Sergeant Daley and Lieutenant True's Testimony

          The Defendants challenge the Court's prior ruling and argue that the testimony of Sergeant Daley and Lieutenant True should be permitted for the following reasons:

The defense experts will assist the jury in the following ways: 1) The jury will understand the details and training involved specific to each material stimulus that presented itself to Officer Perry, and 2) the jury will learn the appropriate responses taught to an officer given each variable presented. The facts of this case involve peculiar circumstances that police officers are trained to face and react to in an environment that is tense, uncertain, and rapidly evolving. Officer Perry was in the process of detaining a contentious and uncooperative suspect and was suddenly attacked by a second individual without warning. Officer Perry retained his weapon from his attacker and used deadly force to stop a perceived deadly force attack. Officer Perry was not faced with a simple punching and kicking encounter. Given the fluid and dynamic circumstances faced by Officer Perry, it cannot be said that the average juror has the common knowledge or experience to analyze what an officer would do when faced with a set of circumstances that were the same or similar to those faced by Officer Perry.

Dkt. No. 195 at 9-10 (footnote omitted). However, as the Court has previously noted, “‘[t]he excessive-force inquiry is governed by constitutional principles, not police-department regulations. An officer's compliance with or deviation from departmental policy doesn't determine whether he used excessive force.'” Dkt. No. 181 at 5 (quoting Brown, 871 F.3d at 536-37). With this standard in mind, to the extent that the Defendants' proposed testimony is relevant, its relevancy would be outweighed by the prejudicial impact of allowing the proposed testimony. See Fed. R. Evid. 403 (“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.”). Testimony addressing whether Defendant Perry acted in accordance with IMPD training and policy would potentially confuse the jury, which should instead focus on the question of whether Defendant Perry complied with the Fourth Amendment. Id. Additionally, this question would likely also distract the jury from the factual disputes at issue in this case.[1] Id. Therefore, the Court again concludes that the exclusion of this testimony from the Defendants' case in chief is proper.

         B. Intent

         For the first time, the Defendants raise the argument that the proposed expert testimony regarding IMPD training and use of force policies is relevant to whether Defendant Perry acted with the necessary intent required for punitive damages. Dkt. No. 195 at 7; see also Smith v. Wade, 461 U.S. 30 (1983) (holding that punitive damages are permitted under 42 U.S.C. § 1983 “when the defendant's conduct is shown to be motivated by evil motive or intent”). The Court agrees with this argument to a very limited extent.

         When considering the question of Defendant Perry's intent, what matters is not whether Defendant Perry acted in accordance with his training or IMPD use of force policies, but rather whether Defendant Perry believed he was acting in accordance with his training or IMPD use of force policies. Were Defendant Perry to testify to his belief that he was acting in accordance with such training and policies, the Plaintiff would be allowed to rebut such assertions with evidence that Defendant Perry was not acting in accordance with the training and policies and that therefore such a believe would not be reasonable. Were that to occur, the Defendants would be allowed to introduce expert testimony from Lieutenant True or Sergeant Daley regarding IMPD training and use of force policies to rebut the Plaintiff's rebuttal.


         As an initial matter, the Court notes that the granting of a motion in limine is not a final ruling regarding the admissibility of the evidence at issue. Rather, it simply prohibits any party from eliciting testimony regarding or otherwise mentioning an issue during trial without first seeking leave of Court outside of the presence of the jury. Therefore, a party who wishes to elicit testimony or introduce evidence regarding a topic covered by a motion in limine that has been granted should request a sidebar conference during the appropriate point in the trial, at which time the Court will determine how best to proceed. Parties should always err on the side of caution and interpret rulings on motions in limine broadly, requesting a bench conference before eliciting testimony or offering evidence that is even arguably covered by a ruling in limine and avoiding mention of such topics during voir dire, opening statements, and closing argument. Counsel shall also carefully instruct each witness regarding subjects that should not be mentioned or alluded to during testimony unless and until a finding of admissibility is made by the Court. Finally, if a motion in limine regarding a topic has been granted as to one party, it shall be treated as being granted regarding all parties.

         A. The Defendants' Motion in ...

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