McLeod v. Llano

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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:

MALIK MCLEOD, : 17-CV-6062 (ARR) (RLM)

:

Plaintiff, : NOT FOR ELECTRONIC

: OR PRINT PUBLICATION

-against- :

:

YAHAIRA LLANO, : OPINION & ORDER

:

Defendant. :

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ROSS, United States District Judge:

In anticipation of trial scheduled to begin June 28, 2021, this order resolves various pre-

trial issues in this 42 U.S.C. § 1983 action, including motions in limine submitted by both plaintiff,

Malik McLeod, and defendant, Officer Yahaira Llano.

For the following reasons, I:

(1) grant defendant’s motion to decide the third-party indemnification claim after trial;

(2) deny defendant’s motion to bifurcate punitive damages;

(3) grant defendant’s motion to exclude all mention of the investigation performed by

the Civilian Complaint Review Board (“CCRB”), the administrative trial

performed by the New York City Police Department (“NYPD”), and their

respective findings, and deny plaintiff’s motion to admit such evidence;

(4) deny defendant’s motion to categorically exclude the NYPD Patrol Guide and deny

plaintiff’s motion to admit specified portions of the Patrol Guide;

(5) grant plaintiff’s motion to preclude references to his previous contacts with law

enforcement;

(6) deny defendant’s motion to admit plaintiff’s guilty plea to disorderly conduct;

(7) deny plaintiff’s motion to exclude evidence that defendant had heard of car break-

ins in the area of the incident;

(8) deny defendant’s motion to preclude the testimony of Latoya Rushion;

(9) grant plaintiff’s motion to ask Officer Jean Prinston leading questions on direct

examination;

(10) deny plaintiff’s motion to preclude evidence of awards or commendations as moot;

(11) grant defendant’s motion to admit certain contested documents;

(12) grant plaintiff’s motion to admit certain contested documents;

(13) deny plaintiff’s motion to cross-examine Captain Sidhu Madhu on his disciplinary

history;

(14) grant defendant’s motion to preclude evidence of Officer Prinston’s disciplinary

history; and

(15) direct defendant to submit revised proposed special interrogatories.

Additionally, I set the following deadlines: (1) any requests to charge the jury or to give

limiting instructions are due no later than fourteen days from the date of this opinion; (2) joint

redacted versions of defendant’s contested exhibits or a letter outlining redaction disputes are due

no later than fourteen days from the date of this opinion; and (3) revised special interrogatories are

due no later than fourteen days from the date of this opinion.

BACKGROUND

Plaintiff, Malik McLeod, filed the instant lawsuit on October 17, 2017, alleging, inter alia,

an excessive force claim against defendant, Officer Yahaira Llano, under 42 U.S.C. § 1983.

Compl., ECF No. 1. Plaintiff’s claim stems from an April 13, 2015 encounter near 272

Pennsylvania Avenue in Brooklyn, New York, in which defendant “punched Plaintiff in the face.”

Order Mot. Dismiss 2, ECF No. 47. Defendant had also brought claims against Officer Jean

Prinston (defendant’s partner), then-Lieutenant Sidhu Madhu, and the City of New York, but I

dismissed those on March 12, 2019. Id. at 5–17.

The parties filed a joint pre-trial order on September 23, 2019. Joint Pre-Trial Order

(“JPTO”), ECF No. 50. On the same day, they also filed motions in limine and cross-oppositions.

Pl.’s Mot. Lim. (“Pl.’s Mot.”), ECF No. 53; Pl.’s Opp’n Mot. Lim. (“Pl.’s Opp’n”), ECF No. 55;

Def.’s Mot. Lim. (“Def.’s Mot.”), ECF No. 51; Def.’s Opp’n Mot. Lim. (“Def.’s Opp’n”), ECF

No. 54. The parties filed supplemental briefs regarding outstanding disputes on October 9, 2020.

Pl.’s Suppl. Br., ECF No. 66; Def.’s Suppl. Br., ECF No. 64. They filed supplemental oppositions

on October 16, 2020. Pl.’s Suppl. Opp’n, ECF No. 68; Def.’s Suppl. Opp’n, ECF No. 67.

On March 29, 2021, I held a status conference informing the parties that trial had been

scheduled to begin June 28, 2021, “unless a criminal trial takes priority for that slot.” Minute Entry

(Mar. 29, 2021).

LEGAL STANDARDS

I. Motions in Limine

“The purpose of an in limine motion is to aid the trial process by enabling the Court to rule

in advance of trial on the relevance of certain forecasted evidence, as to issues that are definitely

set for trial, without lengthy argument at, or interruption of, the trial.” Palmieri v. Defaria, 88 F.3d

136, 141 (2d Cir. 1996) (citation and quotation marks omitted). “Evidence should be excluded on

a motion in limine only when the evidence is clearly inadmissible on all potential grounds.” United

States v. Paredes, 176 F. Supp. 2d 179, 181 (S.D.N.Y. 2001). In limine rulings are “subject to

change when the case unfolds.” Luce v. United States, 469 U.S. 38, 41 (1984).

II. Admissibility

Evidence must be relevant to be admissible at trial. Fed. R. Evid. 402. Evidence is relevant

if it “has any tendency to make a fact more or less probable than it would be without the evidence.”

Fed. R. Evid. 401.

I “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.” Fed. R. Evid. 403. In

applying Rule 403, I “must make a conscientious assessment of whether” one of the enumerated

dangers “substantially outweighs probative value.” United States v. Al-Moayad, 545 F.3d 139, 160

(2d Cir. 2008) (citation and quotation marks omitted).

“Evidence of any other crime, wrong, or act is not admissible to prove a person’s character

in order to show that on a particular occasion the person acted in accordance with the character.”

Fed. R. Evid. 404(b)(1). But “[t]his evidence may be admissible for another purpose, such as

proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or

lack of accident.” Fed. R. Evid. 404(b)(2).

Hearsay is inadmissible if it is offered “to prove the truth of the matter asserted in the

statement” and it does not fall into an enumerated exception. Fed. R. Evid. 801(c)(2), 803.

III. Impeachment

A criminal conviction sustained in the past ten years that “was punishable by death or by

imprisonment for more than one year . . . must be admitted, subject to Rule 403, in a civil case or

in a criminal case in which the witness is not a defendant.” Fed. R. Evid. 609(a)(1)(A). “[F]or any

crime [sustained in the past ten years] regardless of the punishment, the evidence must be admitted

if the court can readily determine that establishing the elements of the crime required proving--or

the witness’s admitting--a dishonest act or false statement.” Fed. R. Evid. 609(a)(2).

Further, Rule 608 allows the admission of “[s]pecific instances of a witness’s conduct in

order to attack or support the witness’s character for truthfulness.” “[E]xtrinsic evidence is not

admissible” for this purpose, but “the court may, on cross-examination, allow” a party to inquire

into “specific instances of a witness’s conduct . . . if they are probative of the [witness’s] character

for truthfulness or untruthfulness.” Fed. R. Evid. 608(b).

IV. Excessive Force

“The Fourth Amendment prohibits the use of excessive force in making an arrest, and

whether the force used is excessive is to be analyzed under that Amendment’s ‘reasonableness’

standard.” Brown v. City of New York, 798 F.3d 94, 100 (2d Cir. 2015) (quoting Graham v. Connor,

490 U.S. 386, 395 (1989)). “Determining excessiveness requires ‘a careful balancing of the nature

and quality of the intrusion on the individual’s Fourth Amendment interests against the

countervailing governmental interests at stake.’” Id. (quoting Graham, 490 U.S. at 396 (quotation

marks omitted)). This balancing “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, 490 U.S. at 396. The “‘reasonableness’ of a particular use of

force must be judged from the perspective of a reasonable officer on the scene, rather than with

the 20/20 vision of hindsight.” Id. “[T]he standard is one of objective reasonableness, and the

officer’s state of mind, whether evil or benign, is not relevant.” Brown, 798 F.3d at 100–01 (citing

Graham, 490 U.S. at 397).

DISCUSSION

I. Trial Plan

A. I will decide defendant’s third-party indemnification claim against the City of

New York after trial.

Defendant requests that I decide her third-party indemnification claim against the City of

New York after trial, Def.’s Mot. 9–11, and plaintiff does not oppose. Indeed, courts in this district

typically take this approach. See, e.g., Mosca v. City of New York, No. 17-CV-4327 (SJF) (SIL),

2019 WL 5592855, at *4 (E.D.N.Y. Oct. 30, 2019); Musso v. City of New York, No. 05-CV-2511

(RRM) (JO), 2010 WL 11530907, at *4 (E.D.N.Y. Mar. 30, 2010). Accordingly, I grant

defendant’s motion to decide the third-party indemnification claim after trial. In turn, the caption

in the jury instructions should omit defendant’s third-party action because “[i]ndemnification is

not relevant to any issue before the jury.” Jean-Laurent v. Hennessy, 840 F. Supp. 2d 529, 550

(E.D.N.Y. 2011).

B. I will not bifurcate punitive damages.

Defendant seeks to bifurcate punitive damages from the liability determination at trial for

two reasons: first, if the jury does not find plaintiff is entitled to punitive damages, it will not need

to reach that calculation; and second, defendant would want to introduce evidence of her financial

means to factor into the punitive damages calculation. Def.’s. Mot. 11. Plaintiff counters that this

separation would be both inefficient and prejudicial. Pl.’s Opp’n 5–7.

Under Federal Rule of Civil Procedure 42(b), I may bifurcate issues at trial “[f]or

convenience, to avoid prejudice, or to expedite and economize.” This decision lies “firmly within

[my] discretion.” Katsaros v. Cody, 744 F.2d 270, 278 (2d Cir. 1984). “In determining whether to

bifurcate, courts in this district consider: (1) whether significant resources would be saved by

bifurcating; (2) whether bifurcation will increase juror comprehension; and (3) whether bifurcation

will lead to the repetition of evidence and witnesses.” Falzon v. Johnson, No. 12-CV-674 (CLP),

2016 WL 11430072, at *1 (E.D.N.Y. Oct. 24, 2016).

Here, bifurcation would not save significant court resources. In fact, this district has limited

time and space to hold safe trials amid the COVID-19 pandemic, and potentially requiring the jury

to deliberate a second time could prolong the trial and needlessly push those boundaries. Nor would

bifurcation aid juror comprehension, as juries routinely decide punitive damages in § 1983 cases

alongside liability. See, e.g., Jones v. Treubig, 963 F.3d 214, 219 (2d Cir. 2020). Moreover, the

only evidence unique to punitive damages is that of defendant’s financial means, which defendant

is free to submit during the liability phase of trial. See Dallas v. Goldberg, 143 F. Supp. 2d 312,

316 (S.D.N.Y. 2001). Any potential prejudice in doing so can be mitigated through an appropriate

limiting instruction, see id., which plaintiff does not oppose, Pl.’s Opp’n 6 n.3. Therefore, I deny

defendant’s motion to bifurcate punitive damages. Accordingly, any requests to charge relating to

the jury’s consideration of personal financial evidence shall be served and filed no later than

fourteen days from the date of this opinion.

II. Scope of Evidence at Trial

A. I will exclude references to the CCRB’s investigation and findings and the NYPD’s

administrative trial.

Plaintiff moves to admit evidence of the CCRB’s investigation and findings and the

NYPD’s administrative trial concerning the incident at issue as public records excepted from the

hearsay rule under Rule 803(8). Pl.’s Mot. 5. Defendant moves to exclude this evidence as

irrelevant under Rule 402 and unduly prejudicial and misleading to the jury under Rule 403. Def.’s

Mot. 2–5. Plaintiff counters that this evidence is “relevant to determinations of credibility” and

“will aid the jury in determining the witnesses’ testimony.” Pl.’s Opp’n 1–2.

As an initial matter, I agree with plaintiff that evidence relating to the CCRB’s investigation

and findings and the NYPD’s administrative trial is admissible as “factual findings from a legally

authorized investigation” under Fed. R. Evid. 803(8)(A)(iii). See Hill v. City of New York, No. 03-

CV-1283, 2005 WL 3591719 (ARR), at *4 n.1 (E.D.N.Y. Dec. 30, 2005). However, several district

courts in this circuit have found such evidence should be excluded under Rule 403 in excessive

force cases because it “would confuse the jury by offering conclusions regarding the factual issues

the jury was to determine.” Morales v. City of New York, No. 99-CV-10004 (DLC), 2001 WL

8594, at *6 n.4 (S.D.N.Y. Jan. 2, 2001); see, e.g., Othman v. Benson, No. 13-CV-4771 (NGG)

(SJB), 2019 WL 1118035, at *6 (E.D.N.Y. Mar. 11, 2019) (precluding evidence of CCRB

investigation in excessive force case); Bermudez v. City of New York, No. 15-CV-3240 (KAM),

2019 WL 136633, at *6 (E.D.N.Y. Jan. 8, 2019) (same).

I find the same here. In their investigations, the CCRB and the NYPD considered whether

the force defendant used on plaintiff violated the standard in the NYPD Patrol Guide of “minimum

force necessary.” Def.’s Mot. 3–4. This is a lesser standard than the constitutional objective

unreasonableness test. This means that the jury, when presented with the same facts, reasonably

could reach a different conclusion on liability against the more exacting constitutional standard

than the CCRB and NYPD reached against the Patrol Guide standard. Thus, presenting the jury

with the CCRB’s and NYPD’s findings would muddle the standard it is meant to apply and

predispose the jury to adopting the same findings. Accordingly, I grant defendant’s motion to

exclude all mention of the CCRB investigation, the NYPD administrative trial, and their respective

findings, and I deny plaintiff’s motion to admit such evidence.1

1 Nevertheless, sworn statements made to either entity may be used as impeachment evidence, so

long as they are redacted appropriately. See Othman, 2019 WL 1118035, at *6; Bermudez, 2019

WL 136633, at *6.

B. I will not categorically preclude the NYPD Patrol Guide, but I decline to admit

the portions plaintiff requests.

Plaintiff moves to admit the following portions of the NYPD Patrol Guide: (i) § 203-11

(Use of Force); (ii) § 212-11 (Stop and Frisk); (iii) § 203-08 (Making False Statements).2 Pl.’s

Mot. 4. Plaintiff claims that “NYPD policies and procedures are relevant in determining how a

reasonable NYPD officer would conduct himself under a given set of circumstances.” Id.

Defendant moves to preclude references to any portion of the NYPD Patrol Guide under Rule 402,

claiming that “alleged violations of NYPD procedure by Officer Llano are irrelevant to the

determination of whether Plaintiff’s constitutional rights were violated.” Def.’s Mot. 5. In the

alternative, defendant argues that the Patrol Guide is “unfairly prejudicial[] and would only

confuse the issues and the jury” under Rule 403. Id. at 6.

The Second Circuit has rejected defendant’s Rule 402 argument “that the Patrol Guide

standard is not relevant because the excessive force standard derives from the Constitution,” noting

that “the Supreme Court . . . [has] considered police regulations of several jurisdictions in making

a constitutional ruling on excessive force.” Brown, 798 F.3d at 101 n.11 (citing Tennessee v.

Garner, 471 U.S. 1, 18–19 (1985)). And district courts in this circuit have followed suit. See, e.g.,

Bermudez, 2019 WL 136633, at *5 (declining to preclude NYPD Patrol Guide in excessive force

case); see also Gogol v. City of New York, No. 15-CV-5703 (ER), 2018 WL 4616047, at *4

(S.D.N.Y. Sept. 26, 2018) (same for different § 1983 claim); Tardif v. City of New York, No. 13-

CV-4056 (KMW), 2017 WL 3634612, at *6 (S.D.N.Y. Aug. 23, 2017) (same); Nnodimele v.

Derienzo, No. 13-CV-3461 (ARR) (RLM), 2016 WL 3561708, at *14 (E.D.N.Y. June 27, 2016)

(same). I join them and deny defendant’s motion to categorically exclude the NYPD Patrol Guide

2 Plaintiff enumerates these three sections in his brief, but the JPTO lists only § 203-11 on use of

force and § 212-11 on stop and frisk. JPTO 9–10.

under Rule 402.

However, these courts still evaluate whether requested portions of the Patrol Guide are

relevant under Rule 402 and admissible under Rule 403. See, e.g., Bermudez, 2019 WL 136633,

at *5. While plaintiff has shown the Patrol Guide generally is relevant “in determining how a

reasonable NYPD officer would conduct himself under a given set of circumstances,” Pl.’s Mot.

4, he has not shown that the probative value of the three sections he seeks to admit outweighs the

risk of confusing the jury.

Regarding § 203-11 on use of force, defendant argues that Rule 403 mandates excluding

this section because “[i]f the jury is presented with [it], it is likely to wrongly assume that NYPD

procedure sets out the standard by which they are to evaluate defendant[’s] alleged unconstitutional

actions, notwithstanding a contrary instruction from the Court.” Def.’s Mot. 6. Upon my

inspection, the only potentially relevant portion of § 203-11 is the policy’s command to “[u]se

minimum force necessary”—the standard upon which the NYPD would judge whether defendant

had violated the Patrol Guide. See id. at 4. As discussed above, this is a less stringent standard than

the objective reasonableness test applicable here. Therefore, I find the risk of unfair prejudice

outweighs the minimal probative value in admitting this document. Accordingly, I deny plaintiff’s

motion to admit § 203-11 of the NYPD Patrol Guide and grant defendant’s motion insofar as I

preclude this document under Rule 403.

Regarding § 212-11 on stop and frisk, defendant objects that this policy is irrelevant under

Rule 402 because plaintiff only is pursuing an excessive force claim, not a false arrest or unlawful

seizure claim. Id. at 6–7. Plaintiff counters that this section shows defendant could have frisked

plaintiff if she “reasonably suspect[ed] [she] or others [were] in danger of physical injury.” Pl.’s

Opp’n 3. Defendant’s decision not to frisk plaintiff purportedly reflects her “belief as to the level

of threat (or lack thereof) Mr. McLeod posed.” Id. at 3–4. While defendant’s perception of the

threat plaintiff posed may be relevant to qualified immunity, the NYPD policy on stop and frisk

does not inform that factual determination. Just because the Patrol Guide may have allowed

defendant to frisk plaintiff does not mean she necessarily would have frisked him if she had felt

threatened. Given this tenuous connection to the facts of this case, I find § 212-11 both irrelevant

under Rule 402 and confusing to the jury under Rule 403. Therefore, I deny plaintiff’s motion to

admit § 212-11 and grant defendant’s motion insofar as I preclude this particular section.

Regarding § 203-08 on making false statements, plaintiff does not assert why this section

is relevant, nor do I see any reason why it would be. Thus, I deny plaintiff’s motion to admit §

203-08 and grant defendant’s motion insofar as I preclude this section as irrelevant under Rule

402.

C. I will exclude plaintiff’s contacts with law enforcement.

Plaintiff moves to exclude evidence of his prior arrests for fare evasion and the warrants

open at the time of the incident. Pl.’s Mot. 2–3. He argues this evidence is unduly prejudicial under

Rule 403 and inadmissible under Rules 404, 608, and 609. Id. Defendant opposes, claiming she

offers this evidence for a proper purpose. Def.’s Opp’n 1–3. Defendant also seeks to admit

evidence of plaintiff’s guilty plea to disorderly conduct as a result of the incident at issue. Id. at 4.

1. Arrests

First, the evidence of plaintiff’s prior arrests is inadmissible under Rule 404(b). Under the

Second Circuit’s “inclusionary approach,” “other act evidence” is admissible under Rule 404(b)

“for any purpose other than to demonstrate criminal propensity.” United States v. Guang, 511 F.3d

110, 121 (2d Cir. 2007) (citation omitted). But defendant has failed to identify a proper purpose

for the evidence of plaintiff’s previous arrests. See, e.g., Triolo v. Nassau Cnty., No. 16-CV-2085

(AKT), 2018 WL 6268845, at *1 (E.D.N.Y. Nov. 30, 2018) (excluding prior arrests in § 1983 case

where such evidence did not fit into the Rule 404(b)(2) exceptions). Defendant argues that this

evidence is probative of plaintiff’s intent as it shows “Plaintiff’s furtive actions were motivated by

his desire to prevent being taken into police custody since he knew he had an open warrant.” Def.’s

Opp’n 3. But in an excessive force case, “the plaintiff’s state of mind is not at issue.” Lewis v.

Velez, 149 F.R.D. 474, 480 (S.D.N.Y. 1993). For that reason, “prior acts evidence is not admissible

on the basis that it is probative of [plaintiff’s] intent.” Id. (precluding evidence of the plaintiff’s

prison disciplinary history in excessive force case where the defendant sought to introduce it as

evidence that the plaintiff initiated the encounter at issue); see also Joseph v. Deluna, No. 15-CV-

5602 (KMW), 2018 WL 5095668, at *2 (S.D.N.Y. Oct. 19, 2018); Hartman v. Snelders, No. 04-

CV-1784 (CLP), 2010 WL 11626508, at *8 (E.D.N.Y. Jan. 28, 2010). Thus, plaintiff’s prior arrests

are inadmissible to show plaintiff’s intent under Rule 404(b).

Defendant also argues that prior arrests evidence is needed to explain “why Plaintiff was

detained at the police precinct and sent to central booking in lieu of being issued a summons.”

Def.’s Opp’n 3. But defendant admits that this fact would not be relevant if “the testimony of the

parties[] will be limited to the facts up until Officer Llano’s use of force.” Id. Given that the

Graham test only takes into account “the particular circumstances . . . ‘at the moment’” the force

was used, Rogoz v. City of Hartford, 796 F.3d 236, 247 (2d Cir. 2015) (quoting Graham, 490 U.S.

at 397), facts relating to plaintiff’s subsequent arrest and trip to the police precinct are irrelevant.

Accordingly, on the issue of liability, I will limit testimony from the day of the incident to “the

facts up until Officer Llano’s use of force,” Def.’s Opp’n 3, and defendant’s Rule 404(b)(2)

argument on this basis is moot.

Second, defendant does not appear to dispute that plaintiff’s prior arrests are inadmissible

for impeachment purposes. Nor could she. By its plain terms, Rule 609 does not apply to arrests

that do not lead to convictions. See, e.g., Stephen v. Hanley, No. 03-CV-6226 (KAM) (LB), 2009

WL 1471180, at *8 (E.D.N.Y. May 21, 2009). Additionally, Rule 608 is inapplicable because

plaintiff’s prior arrests do not bear on his “character for truthfulness.” See, e.g., id.; Daniels v.

Loizzo, 986 F. Supp. 245, 252 (S.D.N.Y. 1997). “Arrest without more does not, in law any more

than in reason, impeach the integrity or impair the credibility of a witness.” Michelson v. United

States, 335 U.S. 469, 482 (1948); see also United States v. Leonardi, 623 F.2d 746, 757 (2d Cir.

1980). Thus, I grant plaintiff’s motion to preclude references to his previous arrests under Rules

404(b), 608, and 609.

2. Warrants

Defendant raises the same Rule 404(b)(2) arguments as to plaintiff’s open warrants as she

does to plaintiff’s prior arrests, but they fail for the same reasons. The open warrants are irrelevant

to plaintiff’s alleged “furtive actions” because his state of mind is not at issue. Additionally,

plaintiff’s trip to the police precinct falls outside the timeline of relevant testimony concerning the

contested use of force. See supra.

Moreover, just as plaintiff’s prior arrests are not admissible as impeachment evidence

under Rules 608 and 609, neither are open warrants. Id.; see also United States v. Vasquez, 840 F.

Supp. 2d 564, 574 (E.D.N.Y. 2011) (precluding evidence of bench warrants under Rule 608(b)).

Thus, I grant plaintiff’s motion to preclude references to his open warrants under Rules 404(b),

608, and 609.

3. Guilty Plea

Defendant claims plaintiff’s guilty plea to disorderly conduct is relevant because it is an

“admission” that he engaged in “violent, tumultuous or threatening behavior,” which bears on the

reasonableness of the force defendant used. Def.’s Opp’n 4. However, in pleading guilty to NY

Penal Law § 240.20, plaintiff did not allocute to any particular subsection. Status Conference Tr.

35:24–36:3 (Sept. 16, 2020). Therefore, he never admitted to engaging in “violent, tumultuous or

threatening behavior,” § 240.20(1), and could just as easily have been admitting to making

“unreasonable noise” or using “obscene language,” § 240.20(2)–(3). Admitting any mention of his

guilty plea for this purpose would be misleading to the jury and unfairly prejudicial. Cf. Stephen,

2009 WL 1471180, at *4 (finding drug conviction stemming from arrest inadmissible because it

“does not provide insight into whether [the plaintiff] posed a threat to the safety of the defendants

or attempted to evade arrest, and, thus, whether the defendants’ use of force was reasonable”).

Therefore, I deny defendant’s motion to admit plaintiff’s guilty plea under Rule 403.3

D. I will include evidence of defendant’s understanding that car break-ins had

occurred recently near the site of the incident.

Plaintiff moves to exclude evidence that defendant had heard of several car break-ins in

the area before the incident, claiming such evidence would be prejudicial and would confuse the

jury under Rule 403, and nevertheless is uncorroborated hearsay. Pl.’s Mot. 4. Defendant claims

the probative nature of this evidence outweighs any prejudice because this evidence relates to her

state of mind during the incident and to the totality of the circumstances leading up to the use of

force. Def.’s Opp’n 4–5. She also claims this evidence is not uncorroborated hearsay because

plaintiff’s mother-in-law had told the CCRB investigator that her car had been broken into in the

3 Defendant does not indicate whether she will seek to admit plaintiff’s guilty plea as impeachment

evidence, but I find it would be inadmissible on this basis, as well. Disorderly conduct is a

misdemeanor and does not involve dishonesty or false statement. See Dougherty v. Cnty. of Suffolk,

No. 13-CV-6493 (AKT), 2018 WL 1902336, at *3 (E.D.N.Y. Apr. 20, 2018) (precluding

misdemeanor convictions under Rule 609); Daniels v. Loizzo, 986 F. Supp. 245, 249 (S.D.N.Y.

1997) (same, including disorderly conduct).

same location where the use of force took place. Id.

As an initial matter, plaintiff does not appear to contend that evidence of car break-ins is

irrelevant under Rule 402. Rather, he argues that it “would prejudice Mr. McLeod and mislead the

jury” because it “would suggest to the jury that Defendant[’s] violation of Mr. McLeod’s

constitutional rights may be excused due to a belief that, notwithstanding [her] misconduct,

Defendant[] w[as] justified in [her] behavior.” Pl.’s Mot. 4. I disagree. Defendant’s understanding

of a history of car break-ins in the area of the incident would not automatically sway the jury that

defendant’s use of force was reasonable. It is merely a factor that a reasonable officer would have

to consider if placed in defendant’s shoes. Even though this evidence does not hold significant

weight, plaintiff’s concerns that it would mislead the jury and prejudice plaintiff are outweighed

by its relevance to the jury’s evaluation of the force used.

I also find that the evidence of car break-ins is not impermissible hearsay. Evidence of car

break-ins is not offered to show the area had a history of car break-ins but that defendant

understood that to be the case. This understanding appears to have been reasonable, given

defendant’s testimony to the CCRB that she “had gotten complaints from regular civilians around

the area . . . claiming that their cars had been broken into.” Def.’s Opp’n 4. Thus, I consider

defendant’s understanding of previous car break-ins to be part of the “totality of circumstances”

she faced in deciding to use force, and I deny plaintiff’s motion to preclude this evidence under

Rule 403.

E. I permit plaintiff to call Latoya Rushion as a witness.

Defendant moves to preclude the testimony of plaintiff’s mother-in-law, Latoya Rushion,

under Federal Rule of Civil Procedure 37(c)(1) because plaintiff only “identified [her] as an

individual likely to have discoverable information” on last day of fact discovery, in violation of

Federal Rule of Civil Procedure 26(a)(1). Def.’s Mot. 7–8.

Rule 37(c)(1) provides: “If a party fails to provide information or identify a witness as

required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply

evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is

harmless.” Rule 26(a)(1)(A) requires parties, “without awaiting a discovery request,” to

affirmatively disclose all individuals “likely to have discoverable information” to the “other

parties.” The decision to preclude testimony under Rule 37 is within my discretion. Patterson v.

Balsamico, 440 F.3d 104, 117 (2d Cir. 2006). Factors I may consider include: “(1) the party’s

explanation for the failure to comply with the [disclosure requirement]; (2) the importance of the

testimony of the precluded witness[es]; (3) the prejudice suffered by the opposing party as a result

of having to prepare to meet the new testimony; and (4) the possibility of a continuance.” Id.

Here, I need not determine whether plaintiff violated Rule 26 because I find that any

violation was “harmless.” Fed. R. Civ. P. 37(c)(1). Even though plaintiff has provided no reason

for the late disclosure and Ms. Rushion’s testimony only goes to potential damages, defendant will

not suffer any prejudice from admitting Ms. Rushion’s testimony because I permit her to depose

Ms. Rushion before trial. Therefore, I deny defendant’s motion to preclude Ms. Rushion’s

testimony.

F. Plaintiff is permitted to ask Officer Prinston leading questions on direct

examination.

Plaintiff moves to ask leading questions on direct to both defendant and Officer Prinston,

defendant’s partner, under Federal Rule of Evidence 611. P’s Mot. 7–10. Defendant does not

contest that plaintiff may ask her leading questions on direct but argues that it is premature to

decide whether to allow the same for Officer Prinston. Def.’s Opp’n 5–7.

Rule 611 allows leading questions on direct exam “when a party calls a hostile witness, an

adverse party, or a witness identified with an adverse party.” Fed. R. Evid. 611(c)(2). Here, Officer

Prinston is defendant’s partner, witnessed the use of force at issue, and previously was a defendant

in this case. Pl.’s Mot. 7. Additionally, plaintiff has shown that Officer Prinston provided

inconsistent testimony in the CCRB investigation and the NYPD administrative trial that favored

defendant. Id. at 9. These facts sufficiently show that Officer Prinston is a “witness identified with

an adverse party.” Gogol, 2018 WL 4616047, at *1 (denying in limine motion to ask the

defendant’s police partner leading questions in § 1983 case when the partner “[wa]s not named as

a defendant and [wa]s not a witness to the events that lead to the arrest“); see also Ellis v. City of

Chicago, 667 F.2d 606, 613 (7th Cir. 1981) (finding in a § 1983 case that the district court erred

in precluding the plaintiff from asking leading questions on direct examination to police officers

who “were each present during portions of the incident which gave rise to this lawsuit” and who

“had worked closely with [the individual defendant] during the period of their employment”).

Therefore, I grant plaintiff’s motion to ask both defendant and Officer Prinston leading

questions on direct examination.

G. I deny plaintiff’s motion to preclude evidence of awards or commendations as

moot.

Plaintiff seeks to preclude defendant from introducing evidence of “awards and/or

commendations” earned by defendant or non-party witnesses. Pl.’s Mot. 6–7. But I deny this

motion as moot because defendant states she does not seek to introduce such evidence at trial.

Def.’s Opp’n 1 n.1; see Gogol, 2018 WL 4616047, at *1.

H. I will admit defendant’s contested exhibits.

Defendant seeks to admit the NYPD command log from plaintiff’s arrest (Exhibit H) and

the handwritten copy of defendant’s arrest report from plaintiff’s arrest (Exhibit J). Def.’s Suppl.

Br. 4–5. Plaintiff no longer opposes admitting these documents, “so long as [they are]

appropriately redacted.” Pl.’s Suppl. Opp’n 1. Therefore, I grant defendant’s motion to admit these

documents subject to appropriate redaction. The parties are directed to submit joint redacted

versions of these documents or identify further disputes as to the scope of redactions no later than

fourteen days from the date of this opinion.

I. I will admit plaintiff’s contested exhibits.

1. Exhibit 5: Complaint Room Screening Sheet

Plaintiff seeks to admit the Complaint Room Screening Sheet prepared by Francis Linnie,

a “screener” employed by the Kings County District Attorney’s Office. Pl.’s Suppl. Br. 2. The

District Attorney’s Office prepares such a sheet “for every criminal case.” Id. This sheet reflects

that defendant informed Ms. Linnie that plaintiff made certain statements before she used force,

including “WHAT ARE YOU ALL BOTHERING ME FOR, I LIVE RIGHT HERE.” Pl.’s Trial

Ex. 5.

While this document is hearsay, I find that it is admissible as an opposing party’s statement.

Rule 801(d)(2) allows a statement made by an opposing party and “offered against [that] party” if

it “(A) was made by the party in an individual or representative capacity; (B) is one the party

manifested that it adopted or believed to be true; (C) was made by a person whom the party

authorized to make a statement on the subject; (D) was made by the party’s agent or employee on

a matter within the scope of that relationship and while it existed; or (E) was made by the party’s

coconspirator during and in furtherance of the conspiracy.” Defendant’s statements to Ms. Linnie

meet this test because defendant made the statements herself, and she had a duty to report the facts

of plaintiff’s arrest accurately. See Davis v. City of New York, 959 F. Supp. 2d 427, 437 (S.D.N.Y.

2013) (admitting arresting officer’s statements to assistant district attorney under Rule 801(d)(2)).

Nevertheless, defendant argues I should preclude this document as irrelevant under Rule

402 and unduly prejudicial under Rule 403. Def.’s Suppl. Opp’n 1–2. This document clearly is

relevant because it includes statements plaintiff made leading up to force being used. These

statements are part of the “totality of circumstances” defendant faced that informed her decision

to use force.4 Even so, defendant claims this document would be prejudicial because it would

“invite speculation by the jury about the lawfulness of Plaintiff’s arrest and prosecution which is

not at issue.” Def.’s Suppl. Opp’n 1. To the contrary, the statements plaintiff made bear on the

reasonableness of defendant’s choice to use force. To the extent they call into question defendant’s

choice to arrest plaintiff, I am willing to include a limiting instruction notifying the jury that the

lawfulness of plaintiff’s arrest is not at issue. Any requested limiting instructions or charges to the

jury on this point shall be served and filed no later than fourteen days from the date of this opinion.

Therefore, I grant plaintiff’s motion to admit Exhibit 5.

2. Exhibit 6: CPL 710.30(1)(a) Statement Notice

Plaintiff seeks to admit the CPL 710.30(1)(a) Statement Notice prepared by the District

Attorney’s Office that memorializes the same statements that appear in the Complaint Room

Screening Sheet. Pl.’s Suppl. Br. 4. Defendant raises the same objections to this document as she

does to the Complaint Room Screening Sheet. Def.’s Suppl. Opp’n 1–2. For the same reasons, the

CPL 710.30(1)(a) Statement Notice is admissible, relevant, and not prejudicial to defendant. See

supra. Therefore, I grant plaintiff’s motion to admit Exhibit 6.

4 Defendant’s contentions that “Plaintiff does not indicate when the document was prepared,

whether it was prepared in person, or over the phone, or whether the document was prepared

contemporaneous to a conversation with Officer Llano,” Def.’s Suppl. Opp’n 2, are contradicted

on the face of the document. The document states Ms. Linnie performed the screening on April

14, 2015 (the day after the incident took place) by “[t]elephone.” Pl.’s Trial Ex. 5. It also indicates

the form was printed on April 14, 2015, showing it was prepared the same day as the screening

interview. Id.

3. Exhibit 7: Criminal Court Complaint

Plaintiff seeks to admit the Criminal Court Complaint prepared for Mr. McLeod’s

prosecution that defendant signed on April 14, 2015. Pl.’s Suppl. Br. 4. In this document, defendant

described plaintiff’s actions at the time she arrested him, including that he attempted to walk away

when she approached him. Pl.’s Trial Ex. 7. Defendant raises the same objections to this document

as she does to Exhibits 5 and 6. Def.’s Suppl. Opp’n 1–2.

Just like Exhibits 5 and 6, this document is admissible as an opposing party statement under

Rule 801(d)(2). Defendant made these statements herself and signed the document, swearing that

making false statements in it could be punishable as a Class A Misdemeanor. Pl.’s Trial Ex. 7.

Defendant’s description of plaintiff’s actions preceding her use of force is relevant as part of the

totality of circumstances she faced in deciding to use force, and it is not prejudicial because I will

give a limiting instruction that the lawfulness of plaintiff’s arrest is not at issue.

J. I preclude plaintiff from raising disciplinary complaints against Captain Madhu

on cross-examination.

Defendant intends to call Captain Shibu Madhu, the officer who prepared the command

log (defendant’s Exhibit H), “to explain what he meant when he noted in the command log that

Plaintiff’s physical/mental condition was ‘apparently normal.’” Def.’s Suppl. Br. 5. Plaintiff seeks

to admit on cross-examination several substantiated complaints and several pending civil lawsuits

against Captain Madhu under Rule 608(b). Pl.’s Suppl. Br. 5. He claims Captain Madhu’s history

of misconduct “demonstrates a willingness to put his interest over that of others,” “demonstrates a

serial deviation from accepted police practice,” “suggests an acceptance of such practices by

others,” and “show[s] a negligence in duty suggesting that any observation of Plaintiff’s

appearance being ‘normal’ does not carry water.” Id. In turn, defendant moves to preclude this

evidence under Rules 404(b), 403, and 608(b). Def.’s Suppl. Opp’n 2–4.

I need not decide if Captain Madhu’s disciplinary history is admissible under Rule 404(b)

because plaintiff only seeks to raise it on cross-examination under Rule 608(b). Bermudez, 2019

WL 136633, at *6 (“[O]ther acts not admissible under Rule 404(b) may nevertheless be admissible

under Federal Rule of Evidence 608.”). While Rule 608(b) allows a party “on cross-examination”

to inquire into “specific instances of a witness’s conduct . . . if they are probative of the [witness’s]

character for truthfulness or untruthfulness,” “[c]omplaints against officers are not probative of a

law enforcement witness’s truthfulness or untruthfulness unless the underlying conduct involves

dishonesty.” Bryant v. Serebrenik, No. 15-CV-3762 (ARR) (CLP), 2017 WL 713897, at *2

(E.D.N.Y. Feb. 23, 2017). Plaintiff has not shown that any of Captain Madhu’s previous acts

underlying his substantiated complaints or prior lawsuits involved dishonesty. Indeed, defendant

asserts that “[n]one of the prior allegations of misconduct deal with false or misleading statements,

or other types of allegations that are even arguably probative of truthfulness.” Def.’s Suppl. Opp’n

4. Thus, I deny plaintiff’s motion and grant defendant’s motion to preclude plaintiff from raising

Captain Madhu’s disciplinary history and prior lawsuits on cross-examination.

K. I preclude plaintiff from admitting the substantiated disciplinary complaint

against Officer Prinston.

Plaintiff asserts that the City of New York, the third-party defendant, withheld a

substantiated complaint of “Abuse of Authority (Frisk)” against Officer Prinston. Pl.’s Suppl. Br.

6. He asks to raise this issue given “its relevance to this trial and Officer Prinston’s testimony

specifically.” Id. In response, defendant moves to preclude this complaint under Rules 404(b), 403,

and 608(b). Def.’s Suppl. Opp’n 2–4.

“[T]o establish that evidence [of disciplinary history] is admissible pursuant to Rule 404(b),

the party seeking admission must first demonstrate a pattern of relevant conduct that shares unique

characteristics.” Bermudez, 2019 WL 136633, at *7. Here, plaintiff’s only claim is one of excessive

force against Officer Llano. He does not challenge the lawfulness of being stopped and questioned

by Officers Llano and Prinston, nor did those officers frisk him. Therefore, a substantiated

complaint against Officer Prinston concerning a frisk would be inadmissible under Rule 404(b).

See Bryant, 2017 WL 713897, at *3.

Further, defendant asserts that the substantiated claim against Officer Prinston does not

involve “conduct that would be probative of truthfulness,” Def.’s Suppl. Opp’n 4, so it is also

inadmissible on cross-examination under Rule 608(b).

Therefore, I grant defendant’s motion to preclude evidence regarding Officer Prinston’s

substantiated CCRB complaint.

III. Special Interrogatories

Defendant has proposed one special interrogatory for the jury to aid my determination on

qualified immunity: “Did Defendant Llano believe, even if mistakenly, that Plaintiff was about to

make physical contact with her before she struck him.” Def.’s Proposed Special Interrogs., ECF

No. 63.

“[I]f there are unresolved factual issues which prevent an early disposition of the defense

[of qualified immunity], the jury should decide these issues on special interrogatories.” Jones v.

Treubig, 963 F.3d 214, 225 (2d Cir. 2020) (quoting Warren v. Dwyer, 906 F.2d 70, 76 (2d Cir.

1990)). “Special interrogatories are vehicles to allow the jury to resolve ‘key factual disputes’

bearing on the legal determination of qualified immunity.” Alla v. Verkay, 979 F. Supp. 2d 349,

370 (E.D.N.Y. 2013) (quoting Cowan ex rel. Est. of Cooper v. Breen, 352 F.3d 756, 765 (2d Cir.

2003)). “After receiving the jury[’s] . . . deci[sion as to] what the facts were that the officer faced

or perceived, the court then may make the ultimate legal determination of whether qualified

immunity attaches on those facts.” Kerman v. City of New York, 374 F.3d 93, 109 (2d Cir. 2004)

(citation and quotation marks omitted). “‘The ultimate legal determination whether . . . a

reasonable police officer should have known he acted unlawfully’ should be made by the court ‘on

the facts found’ by the jury.” Id. (quoting Warren, 906 F.2d at 76).

“To the extent that a particular finding of fact is essential to a determination by the court

that the defendant is entitled to qualified immunity, it is the responsibility of the defendant to

request that the jury be asked the pertinent question.” Zellner v. Summerlin, 494 F.3d 344, 368 (2d

Cir. 2007); see also Ellis v. La Vecchia, 567 F. Supp. 2d 601, 609 (S.D.N.Y. 2008) (“Because

qualified immunity is an affirmative defense, the defendant bears both the burden of proof and the

obligation to request the specific factual interrogatories that would be necessary to enable the court

to make the appropriate legal determination.”). Where the defendant’s conduct is disputed at trial,

and “the verdict does not indicate which purported actions of [the] defendant[] were believed to

have occurred,” the court will be “unable to find that [the] defendant[] w[as] entitled to” qualified

immunity unless the jury answers specific interrogatories making their factual findings clear.

Zhiwen Chen v. Cnty. of Suffolk, 927 F. Supp. 2d 58, 66 (E.D.N.Y. 2013).

Here, defendant’s proposed special interrogatory is insufficient to aid me in determining

“whether . . . a reasonable police officer should have known he acted unlawfully.” Kerman, 374

F.3d at 109. Therefore, I direct defendant to submit revised special interrogatories no later than

fourteen days after this order is published. Failure to comply with this order, or failure to propose

appropriate questions, may result in waiver of qualified immunity as an affirmative defense. See

Alla, 979 F. Supp. 2d at 370 (declining “to present the proposed interrogatories to the jury because

even affirmative responses would have been insufficient to give rise to qualified immunity”).

CONCLUSION

For the foregoing reasons, I (1) grant defendant’s motion to decide the third-party

indemnification claim after trial; (2) deny defendant’s motion to bifurcate punitive damages; (3)

grant defendant’s motion to exclude all mention of the CCRB investigation, the NYPD

administrative trial, and their respective findings, and deny plaintiff’s motion to admit such

evidence; (4) deny defendant’s motion to categorically exclude the NYPD Patrol Guide and deny

plaintiff’s motion to admit specified portions of the Patrol Guide; (5) grant plaintiff’s motion to

preclude references to his previous contacts with law enforcement; (6) deny defendant’s motion to

admit plaintiff’s guilty plea to disorderly conduct; (7) deny plaintiff’s motion to exclude evidence

that defendant had heard of car break-ins in the area of the incident; (8) deny defendant’s motion

to preclude the testimony of Latoya Rushion; (9) grant plaintiff’s motion to ask Officer Prinston

leading questions on direct examination; (10) deny plaintiff’s motion to preclude evidence of

awards or commendations as moot; (11) grant defendant’s motion to admit certain contested

documents; (12) grant plaintiff’s motion to admit certain contested documents; (13) deny

plaintiff’s motion to cross-examine Captain Madhu on his disciplinary history; (14) grant

defendant’s motion to preclude evidence of Officer Prinston’s disciplinary history; and (15) direct

defendant to submit revised proposed special interrogatories.

SO ORDERED.

____/s/_________________

Allyne R. Ross

United States District Judge

Dated: April 28, 2021

Brooklyn, New York