Evans v. Dautovic

725 F.Supp.2d 841

Octavius BONDS and Erin Evans, Plaintiffs,

v.M. DAUTOVIC, J. Mailander, individually and in their official capacities, and City of Des Moines, Defendants.

No. 4:09-cv-00131.

United States District Court, S.D. Iowa,Central Division.

July 22, 2010.

Peter W. Berger, Berger Law Firm PC, Urbandale, IA, for Plaintiffs.

Mark Godwin, Des Moines City Attorney, Des Moines, IA, for City of Des Moines.

Scott J. Beattie, Peddicord Wharton Spencer Hook, Des Moines, IA, for M. Dautovic.

Chester C. Woodburn, III, Hansen McClintock & Riley, Des Moines, IA, for J. Mailander.

ORDER ON MOTION FOR PRELIMINARY EVIDENTIARY RULING

ROBERT W. PRATT, Chief Judge.

Before the Court is a Motion for Preliminary Evidentiary Ruling, filed by Octavius Bonds and Erin Evans, on February 26, 2010. Clerk's No. 21. Defendant, City of Des Moines, filed a Resistance on March 5, 2010. Clerk's No. 22. Plaintiffs filed a Response on March 15, 2010 (hereinafter “Pls.' Reply”). Clerk's No. 24. The matter is fully submitted.

I. BACKGROUND

On September 13, 2008, Des Moines Police Officers M. Dautovic and J. Mailander (hereinafter “Officer Dautovic” and “Officer Mailander”) (collectively “Officers”) pulled over a car carrying Plaintiffs, Erin Evans (“Evans”) and Octavius Bonds (“Bonds”) (collectively “Plaintiffs”). Compl. ¶¶ 11, 13. During the traffic stop, Evans was forcibly removed from the vehicle by the Officers, and Officer Mailander struck her twice with a steel, tactical baton (hereinafter “ASP baton”). Id. ¶¶ 19-20, 36. Officer Dautovic sprayed Bonds in the face with pepper spray, and the Officers repeatedly struck Bonds with their ASP batons. Id. ¶¶ 23, 25-26, 30. Bonds was later taken to Broadlawns General Hospital where his numerous injuries were treated. Id. ¶ 51. Both Evans and Bonds were detained, criminally charged, and tried before a jury. Id. ¶ 46.

Plaintiffs subsequently filed the present action, asserting that the Officers, in both their individual and official capacities, are liable for: (1) assault, pursuant to Iowa law; ¹ and (2) violations of Plaintiffs' rights under the Fourth, Eighth and Fourteenth Amendments of the United States Constitution, pursuant to 42 U.S.C. § 1983. ² Id. ¶¶ 53-76. Plaintiffs also assert each of these claims against the City of Des Moines (“City”) under the theory of respondeat superior. ³ Id. ¶¶ 77-82.

Plaintiffs now seek a preliminary evidentiary ruling regarding statements made by Des Moines Police Chief Judy Bradshaw (“Chief Bradshaw”), during her July 29, 2009 deposition, regarding the use of force employed by the Officers. ⁴ See Pls.' Mem. in Supp. of Mot. for Prelim. Evidentiary Ruling at 2 (hereinafter “Pls.' Br.”). Plaintiffs have identified the following portions of Chief Bradshaw's deposition testimony that they seek to have admitted:

• “[T]he Officers' use of the ASP [baton], and-during this incident was inappropriate. It did not match the level of resistence that Ms. Evans exhibited that day or Mr. Bonds. And I believe that it was inappropriate.” Bradshaw Dep. at 14.

• “Q: Did your conclusion go as far as determining that the [ASP batons] should not have been used at all? A: I conclude that.” Id.; see also id. at 32 (“Q: In other words, by my question I meant that the [ASP batons] shouldn't have been used at all under these circumstances? A: That's right.”).

• “Q: I believe at the press conference-and I'm paraphrasing-you said something to the effect that the use of force was not consistent with training or policy. Would you elaborate on the basis of that statement? A: Yes. As it pertains to the ASP baton, officers are trained to engage with strikes, and then disengage, to see if the strikes are having any impact on the individual that you're trying to bring into compliance and into custody.” Id. at 31-32.

• “I do believe that once the officers engaged the use of the ASP [baton], that they should have disengaged to see if the impact of the strikes were effective.” Id. at 32.

• “Q: So are you critical of the number of blows? A: Yes. Q: Are you critical of the deployment of the [ASP batons] at all? A: Yes.” Id. at 32.

Pls.' Mot. at 1-2.

II. LAW AND ANALYSIS

Plaintiffs move for a preliminary ruling regarding the admissibility of Chief Bradshaw's statements as admissions under Federal Rule of Evidence 801(d)(2) on the basis that Chief Bradshaw was “a person authorized” by the City to speak on the subject matter, and that she is an authorized agent of the City who made the statements within the scope of her employment, and during the existence of her employment relationship. ⁵ Rule 801(d)(2)(C) and (D). The City does not dispute Plaintiff's characterization of the disputed statements as non-hearsay, party statements under Rules 801(d)(2)(C) and (D). ⁶ Instead, the City offers two alternative arguments in opposition to admitting the disputed statements: (1) the statements are related to a conclusion reached during an internal investigation by the police department and, thus, are irrelevant, would cause jury confusion, and have the potential to be highly prejudicial to the City; and (2) the statements were subsequent remedial measures. The Court addresses each argument in turn.

A. Admissibility of Party Statement Derived, in Part, from Internal Investigations

“A statement by a party's [agent] can be admissible as an admission by a party opponent if it is relevant.” Structural Polymer Group, Ltd. v. Zoltek Corp., 543 F.3d 987, 996 (8th Cir.2008). The standard of relevance set forth in Federal Rule of Evidence 401 includes “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” If evidence does not meet this standard, it is not admissible. Fed. R. Evid. 402 (“Evidence which is not relevant is not admissible.”). Relevant evidence may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury....” Fed. R. Evid. 403. The application of Rule 403 “requires a fact-intensive, context-specific inquiry.” Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 388, 128 S.Ct. 1140, 170 L.Ed.2d 1 (2008).

Plaintiffs assert that Chief Bradshaw's statements will be relevant to the “reasonableness” inquiry required in a Fourth Amendment excessive force claim. Pls.' Br. at 1; Pls.' Reply at 2-3. To prove their § 1983 claims against the Officers in their official capacities, Plaintiffs will be required to show that a constitutional violation occurred, and that the constitutional violation was committed pursuant to an official custom, policy, or practice of the City. ⁷ Monell v. N.Y. Dep't of Soc. Servs., 436 U.S. 658, 690-92, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). To prove a constitutional violation due to excessive use of force under the Fourth Amendment, Plaintiffs will be required to show that the force used by the Officers was not objectively reasonable given the circumstances of the traffic stop. Greiner v. City of Champlin, 27 F.3d 1346, 1354 (8th Cir.1994) ( “Claims that law enforcement officers used excessive force in making an arrest are analyzed under the Fourth Amendment, and the test is whether the amount of force used was objectively reasonable under the particular circumstances.”).

“The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application,” however, its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.

Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (quoting Bell v. Wolfish, 441 U.S. 520, 529, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)). “The [ ] reasonableness of force is judged from the perspective of the officer on the scene, taking into consideration the facts known to him, as opposed to one possessing the illuminating power of hindsight.” Billingsley v. City of Omaha, 277 F.3d 990, 993 (8th Cir.2002).

The City disputes the relevance of Chief Bradshaw's statements and also asserts that the introduction of the statements would lead to undue prejudice and jury confusion. City's Br. at 7. The City presents several alternative, but somewhat intertwined, rationales for excluding the statements, which center around the fact that the statements followed an internal administrative investigation. See id. at 7-12. The City asserts that the statements should not be admissible at trial because Chief Bradshaw's opinion was affected by her evaluation of the police department policies regarding the excessive use of force, such that it is equivalent to the results of internal departmental investigation. ⁸ Id. at 7. The City also notes that “while the Chief was free to consider all facts and circumstances related to department operation in making an employment decision, the jury will be confined to the evidence in this case as it works to make liability/damage decisions.” Id. at 8. The City suggests that because Chief Bradshaw's decision-making process is not equivalent to a jury trial, her statements would “mislead the jury into thinking that the Chief had already done their work for them,” which would also be prejudicial to the City's defense. Id. at 7-8. On the sparse record before the Court, the Court does not find these arguments compelling.

1. Relevance of the disputed statements.

Opinion statements, such as the statements at issue here, even when made by a person without personal knowledge of the facts, are well are within the ambit of Rule 801(d)(2). See Fed. R. Evid. 801(d)(2) Advisory Committee Note (1972) (observing that “[t]he freedom which admissions have enjoyed ... from the restrictive influences of...