Denson, Jr. v. Kinney

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

ANTHONY DENSON, JR.,

Plaintiff,

v. Case No: 2:21-cv-497-JES-NPM

MATTHEW KINNEY,

Defendant.

OPINION AND ORDER

This matter comes before the Court on defendant Matthew

Kinney’s Motion In Limine and Memorandum of Law filed on November

13, 2023. (Doc. #157.) Plaintiff Anthony Denson, Jr. filed a

Response in Opposition on November 28, 2023. (Doc. #162.) For the

reasons set forth below, the motion is granted in part and denied

in part.

I.

A motion in limine is a "motion, whether made before or during

trial, to exclude anticipated prejudicial evidence before the

evidence is actually offered." Luce v. United States, 469 U.S.

38, 40 n.2 (1984). These motions "are generally disfavored."

Acevedo v. NCL (Bah.) Ltd., 317 F. Supp. 3d 1188, 1192 (S.D. Fla.

2017). "Evidence is excluded upon a motion in limine only if the

evidence is clearly inadmissible for any purpose." Id. "A motion

in limine is not the proper vehicle to resolve substantive issues,

to test issues of law, or to address or narrow the issues to be

tried." McHale v. Crown Equip. Corp., No. 8:19-cv-707-VMC-SPF,

2021 U.S. Dist. LEXIS 194217, at *3 (M.D. Fla. Oct. 1, 2021)

(citing LSQ Funding Grp. v. EDS Field Servs., 879 F. Supp. 2d 1320,

1337 (M.D. Fla. 2012)). Nor may "[a] party . . . use a motion in

limine to sterilize the other party's presentation of the case."

Johnson v. Gen. Mills Inc., 2012 U.S. Dist. LEXIS 199926, 2012 WL

13015023, *1 (C.D. Cal. May 7, 2012). Additionally, as the Supreme

Court has cautioned:

The ruling is subject to change when the case

unfolds, particularly if the actual testimony

differs from what was contained in the

defendant's proffer. Indeed even if nothing

unexpected happens at trial, the district

judge is free, in the exercise of sound

judicial discretion, to alter a previous in

limine ruling.

Luce, 469 U.S. at 41-42. A denial of a motion in limine is not a

ruling which affirmatively admits any particular evidence. See

Campbell v. Briere, No. 6:17-cv-1036-Orl-TBS, 2018 U.S. Dist.

LEXIS 136159, at *4 (M.D. Fla. Aug. 13, 2018).

II.

The operative pleading is Plaintiff’s Third Amended Complaint

(Doc. #72). The parties agree that after summary judgment the

claims which remain for trial are against deputy Matthew Kinney in

his individual capacity for: (1) assault under Florida law (Count

VII); (2) battery under Florida law (Count VIII); and (3) excessive

force under 42 U.S.C. § 1983 (Count IX). (Doc. #151, p. 2.)

Deputy Kinney moves in limine to exclude certain evidence and

argument he asserts are irrelevant to any issue in this case or

inadmissible under Federal Rule of Evidence 403 because the

probative value is substantially outweighed by unfair prejudice

and it would confuse and potentially mislead the jury, or cause

undue delay. (Doc. #157, pp. 7-8). Plaintiff for the most part

opposes the motion. The court will address the parties’ arguments

in turn below.

A. Violations of Internal Policies

Deputy Kinney anticipates Plaintiff will submit evidence,

comments, or arguments to the jury that certain policies or

procedures of the Collier County Sheriff’s Office (“CCSO”) were

not followed by Deputy Kinney during or following his contact with

Plaintiff. Deputy Kinney argues that even an actual violation of

an internal policy does not equate to a constitutional violation,

so that any evidence, comments, or arguments regarding a violation

of internal policies would violate Federal Rules of Evidence, Rule

403. (Doc. #157, p. 8.)

Deputy Kinney has not identified which policies he wishes to

exclude. It is certainly true that many of the policies of the

CCSO would not be relevant, but some – such as a policy on the use

of force – have clear relevance and would not violate Rule 403.

Edwards v. Gilbert, 867 F.2d 1271, 1276-77 (11th Cir. 1989); Davis

v. Scherer, 468 U.S. 183, 193-95 (1984); Townsend v. Benya, 287 F.

Supp. 2d 868, 876 (N.D. Ill. 2003) (finding a defendant's knowledge

of violating a policy was relevant to a Section 1983 claim and

therefore was not precluded at trial). Since the Court has not

been provided with an identification of which policies or

procedures are specifically at issue, this portion of the motion

is denied, and defendant may make objections at trial to individual

items of evidence.

B. Prior and Subsequent Alleged Bad Acts of Deputy Kinney or

Other CCSO Deputies

Deputy Kinney asserts that any evidence related to prior or

subsequent misconduct regarding himself or other CCSO deputies

should be excluded because it is prior bad act evidence, is not

relevant to whether he used excessive force, and as such, is highly

prejudicial. (Doc. #157, pp. 8-11.) Plaintiff, on the other hand,

argues that such evidence establishes “a pattern of conduct by the

defendants” and shows intent and motive for this type of conduct,

and therefore is admissible under Rule 404(b). (Doc. #162, pp. 4-

5.)

Establishing that Deputy Kinney or other CCSO deputies have

a pattern or practice of using excessive force is exactly the type

of propensity evidence that Rule 404(b)(1) prohibits. See Luka v.

City of Orlando, 382 F. App'x 840, 842-43 (11th Cir. 2010)

(affirming district court's decision to exclude prior complaints

of excessive force against the officer-defendant, stating that the

plaintiff was attempting to use such evidence to prove that the

officer "characteristically engaged in the use of excessive force

and acted in conformity with that characteristic."); Foltz v. City

of Largo, 2011 U.S. Dist. LEXIS 100602, 2011 WL 3919737, at *2

(M.D. Fla. 2011) (granting motion in limine to exclude evidence

relating to prior complaints or discipline against police officer

in § 1983 action for excessive force). Additionally, none of the

prior or subsequent acts identified relate to the use of an

excessive amount of force, and are not acts which would otherwise

be admissible. Accordingly, this portion of Deputy Kinney’s motion

is granted.

C. Testimony as to The January 3, 2017 Incident

Deputy Kinney seeks to exclude any evidence regarding a

traffic stop that occurred on January 3, 2017, involving Plaintiff

and his wife after Plaintiff illegally purchased marijuana from a

drug house (while under surveillance). Plaintiff testified in a

deposition that Deputy Kinney was at the January 2017 traffic stop,

which Kinney denies. The State of Florida prosecuted Plaintiff for

possession of marijuana and Plaintiff was required to attend a

July 6, 2017, pretrial conference regarding that matter.

Plaintiff asserts that Deputy Kinney arrested him on July 5, 2017

so that Plaintiff would not be able to attend the conference.

Deputy Kinney asserts, however, that Plaintiff has presented no

evidence in support of this allegation, that it has nothing to do

with the remaining claims in this case, and that it should be

excluded because it is highly prejudicial and irrelevant to the

outstanding claims. (Doc. #157, pp. 11-12.)

Assuming there is some evidence showing that Deputy Kinney

was present at the January 2017 traffic stop, and that Kinney had

some knowledge that Plaintiff had to attend a pretrial conference

on July 6, 2017, nothing which allegedly occurred during this event

is relevant to the claims being presented at trial. Any such

evidence is irrelevant to Plaintiff’s excessive force, battery,

and assault claims and its admission would violate Rule 403. This

portion of Deputy Kinney’s motion is granted.

D. Testimony About Plaintiff Observing CCSO Harassing Drivers

and Pulling Over Haitians on July 5, 2017

Deputy Kinney also moves to exclude any testimony that

Plaintiff observed CCSO deputies stopping “Haitians” and harassing

drivers on July 5, 2017, that the CCSO deputies saw Plaintiff

witnessing these events, and this led to Plaintiff being stopped

by Deputy Kinney later that day. (Doc. #157, pp. 12-13.) Deputy

Kinney asserts that besides Plaintiff having no evidence to support

his claim, any such testimony would be prejudicial and irrelevant.

(Id., p. 13.) Plaintiff responds that any evidence regarding this

matter is relevant because it shows Deputy Kinney’s motive for

using excessive force against him. (Doc. #162, p. 7).

Plaintiff’s argument is misplaced because in the context of

an excessive force claim the inquiry turns on whether Deputy

Kinney’s actions are objectively reasonable “without regard to his

underlying intent or motivation.” Crosby v. Monroe Cnty., 394 F.3d

1328, 1333 (11th Cir. 2004). See also Kesinger ex rel. Estate of

Kesinger v. Herrington, 381 F.3d 1243, 1248 (11th Cir. 2004)

(determination of whether officer's actions violated Fourth

Amendment right to freedom from excessive force is made "without

regard to his underlying intent or motivation"). Additionally,

whatever small probative value may exist is greatly outweighed by

prejudice and the risk of jury confusion under Rule 403.

Accordingly, this portion of Deputy Kinney’s motion is granted.

E. Testimony About Plaintiff’s “Run-In” With Former CCSO

Deputy Calkins and Plaintiff’s Participation in a Press

Conference

Deputy Kinney seeks to exclude testimonial evidence about two

alleged incidents: (1) an incident that occurred in approximately

1997, when Plaintiff was fourteen years old, and during which

former CCSO Deputy Calkins and other deputies allegedly raped

Plaintiff’s girlfriend (who had been making out with Plaintiff on

the beach) and chased Plaintiff down the beach; and (2) Plaintiff’s

participation in a 2013 press conference regarding Deputy Calkins1

and Plaintiff’s assurance by Sheriff Rambosk that Plaintiff would

1 According to Deputy Kinney, Deputy Calkins was terminated

from the CCSO in 2004. (Doc. #157, p. 13.)

not be harassed for speaking out about his experience with Deputy

Calkins. (Doc. #157, pp. 13-14.) Deputy Kinney asserts that there

is no evidence to support Plaintiff’s allegations, and the

admission of any such testimony would be irrelevant and prejudicial

to the present claims. (Id.) Plaintiff’s only response is that

the testimony about the events described above should be allowed

because it may reveal Deputy Kinney’s motive, knowledge, and intent

for using excessive force against him. (Doc. #162, pp. 7-8).

Neither of these incidents are in any way relevant to the

remaining claims in this case. The first is 20 years old and did

not involve Deputy Kinney. The second is four years before the

incident and also did not involve Deputy Kinney. Neither subject

matter is relevant to the remaining claims in this case. Plaintiff

does not convince the Court that there is any chance this evidence

will reveal Deputy Kinney’s motive, knowledge, or intent for using

excessive force, even if such were required. Lee v. Ferraro, 284

F.3d 1188, 1198 n.7 (11th Cir. 2002)("the excessive force inquiry

should be completely objective, therefore excluding consideration

of the officer's intentions."). Additionally, such testimony would

clearly violate Rule 403. This portion of Deputy Kinney’s motion

is granted.

F. Testimony About Fabricating The Basis For Plaintiff’s

Traffic Stop on July 5, 2017 and The Lawfulness of

Plaintiff’s Arrest

Deputy Kinney asserts that the exclusion of any testimony or

argument that he fabricated the basis for Plaintiff’s July 5, 2017

traffic stop or that the subsequent arrest was unlawful should be

excluded based upon the Court’s prior findings that the traffic

stop due to a seatbelt violation was proper and lawful, as was his

arrest. (Doc. #157, pp. 14-15.) Plaintiff responds that he does

not plan on introducing evidence regarding the traffic stop or

arrest because it has no bearing on the remaining claims for

excessive force, battery, and assault. (Doc. #162, p. 8.)

Accordingly, the Court denies these portions of Deputy Kinney’s

motion as moot.

G. Argument Regarding Deputy Kinney’s Actions Against

Plaintiff Being Racially Motivated

Deputy Kinney asserts that any argument by Plaintiff——that

his actions against Plaintiff were racially motivated——should be

excluded on the basis of relevancy, lack of evidence of the same,

and that it would be unduly prejudicial. (Doc. #157, pp. 15-16.)

Plaintiff argues that this exclusion is overbroad, and that proving

Deputy Kinney’s actions were racially motivated could explain why

he used excessive force and impact Kinney’s credibility. (Doc.

#162, pp. 8-9.)

The Court agrees with Plaintiff that it would be improper to

invoke an across-the-board prohibition of any discussion of race.

While motivation or intent is not required to a determination of

excessive force under the Fourth Amendment, see Crosby, 394 F.3d

at 1333; Lee, 284 F.3d at 1198 n.7, it will not be excluded if

properly supported. Deputy Kinney’s motion as to this portion is

therefore denied as overbroad.

H. Testimony About Deputy Kinney or Other CCSO Deputies

Destroying Plaintiff’s Cell Phone

Lastly, Deputy Kinney seeks to exclude any testimony that he

or other CCSO deputies destroyed Plaintiff’s phone during the July

5, 2017 traffic stop and arrest. (Doc. #157, p. 16.) Deputy Kinney

emphasizes that the Court already denied Plaintiff’s request to

re-open discovery regarding this matter since any evidence was

irrelevant due to there being no phone-related allegations in the

operative complaint. (Doc. #113.) Deputy Kinney thus argues that

the Court should not allow testimony regarding the same as it is

prejudicial and irrelevant to Plaintiff’s claims. (Doc. #157, p.

17.)

Plaintiff maintains that he does not plan on introducing any

such evidence in contravention of the Court’s previous Order, that

is, he will not attempt to admit the actual cell phone or its

contents as evidence. (Doc. #162, p. 9.) Plaintiff nevertheless

argues that he should be able to testify about the traffic stops

he recorded on his phone because it is relevant to Deputy Kinney’s

motive and intent for using excessive force. (Id.) For the reasons

previously discussed, the intent and motivation for excessive

force is not germane to the jury’s inquiry in a Fourth Amendment

context. Accordingly, Deputy Kinney’s motion is granted as to this

exclusion.

Accordingly, it is hereby

ORDERED:

Defendant Matthew Kinney’s Motion In Limine (Doc. #157) is

GRANTED in part and DENIED in part as set forth above.

DONE and ORDERED at Fort Myers, Florida, this Ath day

of February, 2024.

/ — Ap f

VAM Z~ DH

JGHH E. STEELE

SHNIOR UNITED STATES DISTRICT JUDGE

Copies:

Counsel of record