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Boykins v. City of N.Y.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
Nov 22, 2017
13-cv-2299 (ENV) (RER) (E.D.N.Y. Nov. 22, 2017)

Opinion

13-cv-2299 (ENV) (RER)

11-22-2017

SHAKEEM BOYKINS, KEVIN WINT, PRINCETON ANTOINE, Plaintiffs, v. CITY OF NEW YORK, POLICE OFFICER VLADIMIR RAVICH, SHIELD NO. 14673, POLICE OFFICER THEODORE PETERS, SHIELD NO. 13285, SERGEANT THOMAS TURNER, SHIELD NO. 02747, POLICE OFFICER JOHN DOE 1, Defendants.


SHORT FORM MEMORANDUM AND ORDER

Jury selection in this matter is scheduled to begin on December 11, 2017. The parties have each filed evidentiary motions in limine. (Pls.' Mot in Limine, ECF No. 43; Defs.' Mot in Limine, ECF No. 47). After the initial filings, in their reply, defendants included a supplemental motion in limine. (Defs.' Reply, ECF No. 53). Having fully considered the motion papers, and seeing no need for further argument, the motions in limine are resolved in the manner, and for the reasons, set forth in the following tables.

I. Plaintiffs' Motions in Limine

Request

Ruling

A. Plaintiffs move to excludeseveral YouTube videosand photos that purportedlydemonstrate theirmembership in the "LoopyGang." (Defs.' Exs. Y & Zin JPTO, ECF No. 42.)

A. Rule 403 of the Federal Rules of Evidence requires theweighing of the probative value of proffered evidenceagainst the likelihood of its creating unfair prejudice.Under the strictures of Rule 403, any relevance thatevidence of plaintiffs' gang membership, offered mainlyto show such membership, might have in this case issubstantially outweighed by the danger of unfairprejudice, confusing the issues and misleading the jury.Such a proffer risks the jury finding against plaintiffs onaccount of their status as gang members alone.Defendants contend that gang membership goes to showwhether defendants had probable cause to arrest. But,that argument misses the mark because, despite its title,gang assault in the second degree does not include gangmembership as an element. See N.Y. Pen. L. § 120.06.The absence of gang membership as an element of thecrime vastly reduces the probative value of the evidence.This is not to say that gang membership is irrelevant to

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proving gang assault; it is only to say that, assuming thatthere is relevant purpose to the proffer, Rule 403balancing bans it. It is true that such evidence showingplaintiffs' membership as a motive for the assault may beappropriate under Rule 404(b). A proffer under that rule,however, does not escape the reach of Rule 403. See,e.g., United States v. Shellef, 507 F.3d 82, 101 (2d Cir.2007).Additionally, such evidence is not admissible under Rule608(b) because gang membership is not probative ofplaintiffs' character for untruthfulness. Lastly, thisevidence has no relevance to damages. Even assumingsome relevance that would entitle defendants to seekadmission of plaintiffs' gang membership into evidenceat trial, any relevance is still substantially outweighed bythe danger of unfair prejudice and jury confusion.The motion to preclude such evidence is, therefore,granted upon application of Rule 403 balancing.

B. Plaintiffs move to exclude(i) data from Kevin Wint'scellphone, along with (ii)

B. (i) There appears to be no substantial dispute that thecellphone contains no recording of the contested incidentor other significantly relevant information. Introduction

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Ruling

the search warrant andcorresponding affidavit forthe search of thatcellphone. (Defs.' Exs. V-X in JPTO.)

of the cellphone and its contents are, consequently,precluded. This ruling does not bar, as plaintiffsconcede, inquiry by defendants to establish that no suchinformation was recorded or related informationcontained on Wint's cellphone. Nor does it bar renewalof a defense application to admit all or part of suchevidence should plaintiffs claim that they sought to or didrecord such information on the cellphone.(ii) The search warrant and affidavit are irrelevant,especially given that these documents sought informationunrelated to the subject incident. Plaintiffs' motion tobar introduction of this evidence is granted.

C. Plaintiffs move to excludea letter sent by plaintiffs'counsel asking the NYPDto destroy photographs ofplaintiffs taken after theirarrest. (Defs.' Ex. AA inJPTO.)

C. The letter of counsel is probative of nothing and is,correspondingly, inadmissible under Rules 401 and 402.If the photos exist, they—not counsel's letter—might beprobative of, inter alia, damages. Furthermore, even hadthe letter been probative, the jury confusion that it wouldlikely engender would bar it under Rule 403.Accordingly, plaintiff's motion is granted.

D. Plaintiffs move to exclude

D. Substantive Evidence: Turning first to nonimpeachmentuses, information regarding plaintiffs' prior convictions

Request

Ruling

their rap sheets, their priorcriminal convictions andBoykins's prior federalindictment, sentencingopinion and transcript froma case unrelated to theincident in question.(Defs.' Ex. M-O in JPTO.)

and other contacts with the criminal justice system areinadmissible propensity evidence under Rule 404(b).Defendants' contention that the convictions qualify foranother permissible purpose under Rule 404(b)(2), suchas absence of mistake, intent, motive or bias isunavailing. Moreover, any probative value issubstantially outweighed by the danger of unfairprejudice and misleading the jury, i.e., the risk that thejury might find against plaintiffs on the basis of theirpurported criminal convictions or other prior contactswith the criminal justice system.Impeachment: Switching gears to the admission ofevidence for impeachment purposes, defendants claimthat Boykins's purported arrest for providing a falseidentification and plaintiffs' probation violations areadmissible under Rule 608(b). Although the Court willpermit defendants to inquire on cross examination into

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Ruling

this arrest since it is probative of Boykins's character foruntruthfulness, they may not so inquire regardingplaintiffs' probation violations because they do not bearon plaintiffs' truthfulness. See United States v. Vasquez,840 F. Supp. 2d 564, 574-75 (E.D.N.Y. 2011).Momentarily putting to one side plaintiffs' criminalconvictions, all other evidence of plaintiffs' contacts withthe criminal justice system are inadmissible forimpeachment purposes.With regard to plaintiffs' purported criminal convictions,Rule 609(a)(1)(A) provides that a witness's convictionfor a crime punishable by a term of more than one year inprison may be utilized as impeachment, subject to thebalancing test of Rule 403. If the conviction is more thanten years old, Rule 609(b) further provides that"[e]vidence of the conviction is admissible only if . . . itsprobative value, supported by specific facts andcircumstances, substantially outweighs its prejudicialeffect." "[I]n balancing probative value againstprejudicial effect under this rule, courts examine thefollowing factors: (1) the impeachment value of the prior

Request

Ruling

crime, (2) the remoteness of the prior conviction, (3) thesimilarity between the past crime and the conduct atissue, and (4) the importance of the credibility of thewitness." Jean-Laurent v. Hennessy, 840 F. Supp. 2d529, 544 (E.D.N.Y. 2011) (citation omitted). Whereadmission of multiple convictions is sought, "theaggregate prejudicial effect of [both] convictions must[next] be weighed against their probative value,"because, "[o]nce a prior felony has been presented to thejury, the incremental value of additional convictions maybe diminished." United States v. White, No. 08-cr-682(NGG), 2009 WL 4730234, at *5 (E.D.N.Y. Dec. 4,2009) (citing United States v. Washington, 746 F.2d 104,107 (2d Cir. 1984) (Newman, J., concurring)). Foradmissible convictions, a court should admit evidence of"the statutory name of the offense, the date of conviction,and the sentence imposed." United States v. Estrada, 430F.3d 606, 617 (2d Cir. 2005). The Court is not presentlyin a position to balance specific convictions becausewhen this motion was briefed the parties had not yetreceived the certificates of disposition. To date, no such

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certificates have been submitted to the Court.Accordingly, the Court reserves decision until the pre-trial conference regarding the admission of plaintiffs'criminal convictions for impeachment purposes only.See Jean-Laurent, 840 F. Supp. 2d at 540.The motion is therefore granted in part, denied in partand decision reserved in part.

E. Plaintiffs move to excludelitigation documents, i.e.,plaintiffs' notices of claim,complaint, amendedcomplaint, and discoveryrequests. (Defs.' Ex. EE-HH in JPTO.)

E. The whole hog introduction of litigation documents byany party will simply not be permitted. These documentsmay, of course, be used, where appropriate, to impeach awitness upon the showing of a ground for impeachment.Discrete excerpts of litigation documents may beutilized, where appropriate, as admissions. See FRE801(d)(2); Zitz v. Pereira, 119 F. Supp. 2d 133, 140-41(E.D.N.Y. 1999), aff'd 225 F.3d 646 (2d Cir. 2000).Such discrete proffers, however, are to be made inlimine, and defendants have not done so. At this point,no such proffer will be accepted at trial.

Unless otherwise indicated, any reference to a rule in this short form order will be to a rule of the Federal Rules of Evidence.

The ruling is, of course, prefaced by an extra large caution flag. If a plaintiff testifies regarding alleged emotional damage, such testimony might likely open the door to the admission of additional details concerning the plaintiff's criminal history. See Banushi v. Palmer, No. 08-cv-2937 (KAM)(JO), 2011 WL 13894, at *3 (E.D.N.Y. Jan. 4, 2011), aff'd, 500 F. App'x 84 (2d Cir. 2012); Phillips v. City of New York, 871 F. Supp. 2d 200, 207 (E.D.N.Y. 2012). Most importantly, if plaintiffs intend to elicit such testimony, the Court expects to be so advised at the final pre-trial conference and it will take its ruling at that time.

II. Defendants' Motions in Limine

Request

Ruling

A. Defendants move topreclude (i) anydisciplinary history orcurrent lawsuits againstdefendants or nonpartypolice officer witnesses,(ii) any reference byplaintiffs to unrelatedpurported instances ofpolice misconduct, newsmedia reports, classactions, or criminalinvestigations and (iii) anyuse by plaintiffs of"terminology andcolloquialisms such as'testilying' and 'blue wallof silence.'"

A. (i) For evidence of prior complaints against a policeofficer to be admissible under Rule 404(b) for thepurpose of establishing a pattern of conduct, andassuming that the conduct actually occurred prior in time,"the extrinsic acts must share unusual characteristics withthe act charged or represent a unique scheme."Berkovich v. Hicks, 922 F.2d 1018, 1022 (2d Cir. 1991)(internal quotations and citation omitted); see alsoFerreira v. City of Binghamton, No. 3:13-CV-107, 2016WL 4991600, at *3 (N.D.N.Y. Sept. 16, 2016). But,because plaintiffs have not sought in limine to do so anddefendants do not specify any disciplinary proceedings orlawsuits they believe plaintiffs might seek to admit forthe most part, there is nothing for the court to decide(the exception is the Fields lawsuit referenced infra). Intheir response, plaintiffs do identify a purported lawsuitby Jaleel Fields against defendant Vladimir Ravich. Thealleged conduct in the Fields suit, however, does not

Request

Ruling

share sufficient unusual characteristics with the presentconduct at issue, nor does it represent a unique scheme.The fact that Ravich allegedly assaulted a person whowas purportedly photographing him is not sufficient.Most assuredly, in any event, the slight probative valueof this evidence, as plaintiff would proffer it, is faroutweighed by its potential for unfair prejudice and theconfusion these unrelated facts would cause, i.e., the juryconcluding that Ravich violated plaintiffs' civil rightsbecause he had allegedly done so to other individuals.Accordingly, the motion is granted with respect to theFields lawsuit, subject to an application at trial byplaintiffs that Ravich's testimony at trial somehowopened the door to this evidence.(ii) Defendants' broad request to prevent any referencesto any allegations of police misconduct cannot beevaluated in a vacuum, and, as presented in their motion,is vague and lacking precise definition. Accordingly,this motion is denied, with leave for defendants to raisemore specific objections at the pre-trial conference and attrial. Plaintiffs are reminded, of course, that the incidents

Request

Ruling

alleged in the complaint are what is on trial, not theconduct of police officers at other times and places andunder other circumstances. Their arguments shouldreflect that understanding.(iii) Similarly, but keeping in mind the caution toplaintiffs in (ii) above, without the benefit of context inwhich the phrase is used at trial, the Court is in noposition now to peremptorily censor plaintiffs' speech.That said, it is hard to imagine in what circumstancesreferences to "testilying" and "blue wall of silence"could ever be appropriate. In any event, defendants'motion to bar certain terminology is denied, with leavefor defendants to make more specific objections at thepre-trial conference and at trial.

B. Defendants move (i) toremove the City of NewYork from the caption, (ii)that the jury not beinstructed on respondeatsuperior, (iii) to preclude

B. (i) The City of New York is a defendant based solely ona respondeat superior theory of liability. Althoughdefendants' motion is somewhat unclear (it appears thatcertain language was lifted from another case withdifferent defendants), it appears that defendants concedethat they were acting in the scope of their employment

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Ruling

plaintiffs from referring todefense counsel as "cityattorneys" and (iv) topreclude evidence ofindemnification.

and that the City will be liable if the defendants areliable. Subject to defendants in fact making thisconcession, because the limited probative value ofincluding the City of New York in the caption issignificantly outweighed by the danger of unfairprejudice and confusing the jury as to whether theconduct of the City is at issue, defendants' motion isgranted, to the extent that the City of New York will beremoved from the caption of any document submitted tothe jury. See Estate of Jaquez v. Flores, No. 10 Civ.2881 (KBF), 2016 WL 1060841, at *12 (S.D.N.Y. Mar.17, 2016); Order, Calderon v. City of New York, No. 14Civ. 1082 (PAE) (S.D.N.Y. July 28, 2016) (ECF No. 99).(ii) This matter will be reserved until the final pre-trialconference.(iii) Plaintiffs have raised no specific objections todefendants' request that defense counsel not be referredto as "city attorneys." Defendants' motion is granted tothe extent that plaintiff will not be permitted to refer todefense counsel as "city attorneys." To maintain a level

Request

Ruling

playing field, the jury will be instructed once, at thebeginning of trial, that "defendants are represented byattorneys from the Office of the New York CityCorporation Counsel because they are members of theNew York City Police department, which is an agency ofthe City of New York." See Jean-Laurent v. Hennessy,840 F. Supp. 2d 529, 550 (E.D.N.Y. 2011).(iv) Similarly, plaintiffs raise no specific objections todefendants' request to preclude evidence ofindemnification. Accordingly, as for indemnification,defendants' motion is granted to the extent that plaintiffwill not be permitted to refer to or suggest the possibilitythat the City will indemnify the defendant officers. If,however, defendants open the door by offering argumentor evidence of the officers' limited financial capacity,plaintiff may move for reconsideration of this ruling. SeeAnderson v. Aparicio, 25 F. Supp. 3d 303, 314 (E.D.N.Y.2014), aff'd and remanded sub nom. Anderson v. Cty. ofSuffolk, 621 F. App'x 54 (2d Cir. 2015); cf. Provost v.City of Newburgh, 262 F.3d 146, 163-64 (2d Cir. 2001).

Request

Ruling

C. Defendants seek topreclude (i) Robyn Learand (ii) Dr. Collie Oudkerkfrom testifying.

C. (i) Upon defendants' concession that the criminal casesagainst plaintiffs were terminated favorably, the motionto preclude testimony to that effect by Attorney RobynLear is granted. See FRE 403.(ii) On this record, the motion to preclude Dr. Oudkerk'stestimony is granted. Dr. Oudkerk was not noticed as anexpert, yet that is precisely the purpose for whichplaintiffs seek to call him: to provide explanation of theterms used in the hospital records. The subsidiarypurpose for which he would be called is to qualify thoserecords for admission. Yet, nothing in the recordsuggests that he is the custodian of those records or thathe would be able to lay a business records foundation forthem. In any event, unless there is a bona fide reason notto, the parties should stipulate to the admissibility ofthese medical records for business records purposes butsubject to other valid objections.

D. Defendants move topreclude plaintiffs fromsuggesting a specific dollar

D. The motion is denied, except that plaintiffs' counsel willonly be permitted—solely in the context of closingargument—to state what liability and damages the

Request

Ruling

amount to the jury.

evidence has established, and to submit a specific dollaramount that plaintiffs contend is reasonablecompensation for their loss. The Court will instruct thejury that statements by lawyers in closing are nothingmore than argument. See Edwards v. City of New York,No. 08-2199 (TLM), 2011 WL 2748665, at *2 (E.D.N.Y.July 13, 2011); see also Lightfoot v. Union CarbideCorp., 110 F.3d 898, 912 (2d Cir. 1997).

E. Defendants move topreclude plaintiffs fromintroducing the "FinestMessage" and the NYPDPatrol Guide (Pls.' Exs. 2-3in JPTO) into evidencebecause they are irrelevant.

E. Plaintiffs assert that they seek to introduce this evidenceto (i) show defendants' departure from policingstandards, (ii) refute any qualified immunity defense and(iii) demonstrate the malice element of their maliciousprosecution claim. Given that defendants have failed toinclude the text of the Finest Message or the NYPDPatrol Guide that they seek to preclude, the Courtreserves decision on this motion. Again, it iscontemplated that, in light of the defense objection, thatplaintiffs should identify in limine what text they seek toadmit. It is anticipated that the proffer will be made atthe pre-trial conference, and the motion will be resolvedat that time.

Should plaintiffs seek to admit such evidence, they are required to move to do so in limine before the upcoming pre-trial conference.

III. Defendants' Supplemental Motion in Limine

Request

Ruling

A. Defendants seek topreclude any testimonyfrom Robyn Lear regardinggrand jury proceedings.

A. Because the Court has already concluded that Lear willbe precluded from testifying, see II.C. supra, the motionis denied as moot.

So Ordered. Dated: Brooklyn, New York

November 22, 2017

/s/_________

ERIC N. VITALIANO

United States District Judge


Summaries of

Boykins v. City of N.Y.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
Nov 22, 2017
13-cv-2299 (ENV) (RER) (E.D.N.Y. Nov. 22, 2017)
Case details for

Boykins v. City of N.Y.

Case Details

Full title:SHAKEEM BOYKINS, KEVIN WINT, PRINCETON ANTOINE, Plaintiffs, v. CITY OF NEW…

Court:UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Date published: Nov 22, 2017

Citations

13-cv-2299 (ENV) (RER) (E.D.N.Y. Nov. 22, 2017)