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Foust v. City of Page

United States District Court, D. Arizona

September 5, 2014

First Lieutenant Shannon Foust, et al., Plaintiffs,
City of Page, et al., Defendants.


DAVID G. CAMPBELL, District Judge.

A Final Pretrial Conference was held on August 29, 2014. Counsel appeared on behalf of Plaintiffs and Defendants.


1. Trial in this matter shall begin on December 10, 2014, at 9:00 a.m.

2. The trial shall last 7 days (December 10-12 and 16-19, 2014). Plaintiffs shall be allotted 17 hours of trial time and Defendants shall be allotted 16 hours of trial time. The Court will keep track of each side's time. Opening and closing statements, direct examination, and cross-examination shall be counted against the parties' time.

3. A final conference shall be held on December 8, 2014, at 4:30 p.m. in Courtroom 603, Sandra Day O'Connor Federal Courthouse, 401 West Washington Street, Phoenix, Arizona 85003.

4. The parties' proposed final pretrial order was approved by the Court as the final pretrial order in this case. The order shall govern the presentation of evidence and other trial issues, and, pursuant to Rule 16(e) of the Federal Rules of Civil Procedure, shall be modified only to prevent manifest injustice. Evidence, objections, legal arguments, and relief not requested or identified in the order shall not be available at trial, except to prevent manifest injustice.

5. The Court grants Plaintiffs' Motion in Limine 1 regarding evidence about Decedent Mr. Foust's sovereign citizen beliefs. Doc. 128. Plaintiffs assert that Officer Wilson was not aware of Foust's political beliefs on the day in question, and Defendants do not contend otherwise. The Court concludes that evidence concerning those beliefs is irrelevant to whether Wilson acted negligently on the day in question and whether Foust's actions, which were observed by witnesses and captured in part on video, were a contributory fault. The Court also concludes that the probative value of Foust's political beliefs is substantially outweighed by the danger of jury confusion and undue delay under Federal Rule of Evidence 403. Defendants' primary argument is that the evidence is needed to counter Plaintiffs' anticipated evidence that Foust was a peaceful, law abiding citizen, but the Court has not ruled that such evidence is admissible. If Defendants believe that Foust's political beliefs become relevant during the course of trial, they may raise the issue with the Court outside the hearing of the jury. This ruling does not preclude evidence regarding the document Foust apparently produced and began to fill out during the interaction with Wilson on the day in question.

6. The Court denies Plaintiffs' Motion in Limine 2. Doc. 129. Plaintiffs ask the Court to approve the use of certain exhibits and exemplars during their opening statement, but Plaintiffs apparently have not shown the specific exhibits to defense counsel. They should do so after the final pretrial conference, and the Court will then address any objections by Defendants at the final conference scheduled below. In addition, the number and nature of the exhibits suggest that Plaintiffs are planning a lengthy opening statement designed to persuade the jury. An opening statement is not argument, and should be limited to an overview of what the party expects the evidence to show. More detailed attempts at persuasion should be reserved for closings.

7. The Court denies Plaintiffs' Motion in Limine 3. Doc. 130. Plaintiffs ask the Court to preclude Defendants from referring to the 911 call as a domestic violence call. In response, Defendants quote portions of the subsequent radio exchange in which the dispatcher refers to the call as a "domestic" and Officer Wilson refers to it as a "DV." In addition, once Wilson arrived at the scene, Toni Foust suggested that she had been threatened by Foust. In light of these facts, the Court will not attempt in advance of trial to limit the way in which counsel or witnesses describe the call. If Plaintiffs' counsel believes during trial that Defendants are describing the call in an unfairly prejudicial manner, they may object and the Court will rule.

8. The Court denies Plaintiffs' Motion in Limine 4. Doc. 131. Plaintiffs ask the Court to instruct the jury that the knowledge of various city employees is attributable to the city, and to permit Plaintiffs to present evidence and argument to the jury concerning the city's alleged failure to disclose what various city employees knew about Officer Wilson. The basis for this request is Defendants' alleged failure to disclose this information in discovery, but the written discovery requests identified by Plaintiffs (Interrogatories 2, 5, 7, 9, and 14 and Requests for Production 1 and 4), each of which the Court has reviewed, do not clearly call for it. Moreover, this is, in effect, a motion for sanctions under Rule 37(d) that does not comply with Rule 37(d), nor does it address the legal standard and level of culpability required for what would be, in effect, a request for an adverse inference instruction.

9. The Court grants in part and denies in part Defendants' Motion in Limine regarding character and other acts. Doc. 114. Defendants' motion concerns several difference categories of alleged character evidence. Defendants ask the Court to exclude the evidence under Rules 403 and 404.

a. Ray Finley. The Court will grant the motion with respect to the testimony and related documents of Ray Finley. Finley asserts that Officer Wilson has targeted and harassed him for several years, following him to obtain a DUI arrest, cursing at him, and behaving in a threatening manner. Finley also believes Wilson stole $1, 200 from him during an arrest. Finley has filed several complaints with the City, and opines that Wilson is a petty, vindictive bully who abuses his power. Plaintiffs seek to present this evidence to show that Wilson targets those against whom he has a grudge and did so with respect to Foust in this case, and to show the City's negligence in failing to control Wilson.

The relevancy of this evidence is marginal. The evidence does not concern the events of June 19, 2011, and its probative value with respect to Officer Wilson's actions on that day is very indirect. The evidence does not concern any use of force incident, and its relevancy to the City's negligence in retaining him is therefore also indirect with respect to the events of June 19, 2011. The Court concludes that the probative value of this marginally relevant evidence is substantially outweighed by the danger of unfair prejudice. The evidence presents the clear possibility that the jury would rule against Wilson and the City because he is a bad person. The marginal relevancy is also substantially outweighed by ...

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