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Thompson v. Mancuso

August 25, 2009

ALBERTINE THOMPSON, AS PARENT AND LEGAL GUARDIAN OF MARC ELDEMIRE, AND AISLINN MCQUEEN, AS PARENT AND LEGAL GUARDIAN OF ANTHONY AND NAJAME MCQUEEN, PLAINTIFFS,
v.
STEPHEN MANCUSO, ROBERT DONNELLY, AND ZACHARY KUZOWSKY, DEFENDANTS.



The opinion of the court was delivered by: L. Felipe Restrepo United States Magistrate Judge

MEMORANDUM AND OPINION

Before the Court is the Motion in limine and supporting Memorandum of Law of Defendants, Stephen Mancuso, Robert Donnelly, and Zachary Kuzowsky, seeking to preclude the admission of any evidence or argument concerning prior Internal Affairs Division ("IAD") investigations or other police misconduct on their part (Doc. No. 18), and the Memorandum of Law in response thereto of Plaintiffs Albertine Thompson (as parent and guardian of Plaintiff Marc Eldemire) and Aislinn McQueen (as parent and guardian of Plaintiffs Anthony and NaJame McQueen) (Doc. No. 22). Also before the Court is a second Motion in limine and supporting Memorandum of Law filed by Defendants seeking to preclude the admission of evidence or argument relating to a videotape broadcast on the FOX 29 television channel (Doc. No. 25) and Plaintiffs' Memorandum of Law in response thereto (Doc. No. 26).*fn1 For the reasons set forth below, Defendants' Motions in limine are granted without prejudice to Plaintiffs to raise these issues at trial should appropriate circumstances arise. Plaintiffs are permitted to question Defendants about any prior dishonest acts should they testify at trial, but extrinsic evidence of such acts are not admissible.

I. BACKGROUND

Plaintiffs filed suit on August 4, 2008 alleging violations of their Fourth and Fourteenth Amendment rights under 42 U.S.C. §1983 based on the theory that the Defendant police officers used excessive force during the arrest of Eldemire and NaJame and Anthony McQueen. See Compl. ¶ 37. The Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331. On May 12, 2009, the Honorable Ronald L. Buckwalter signed an order referring the case to this Court after the parties consented to proceed in front of the undersigned pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. See Consent and Order dated 5/12/09 (Doc. No. 11).

This lawsuit arises from an altercation that occurred on March 14, 2008 between Marc Eldemire, NaJame McQueen, and Anthony McQueen and Officers Stephen Mancuso, Robert Donnelly, and Zachary Kuzowsky. Pl.'s Br. 2; Def.'s Br. 1. Plaintiffs allege that they were walking on the 100 block of Godfrey Avenue in Philadelphia after leaving a basketball game at the Olney Recreation Center located at A Street and Olney Avenue. Pl.'s Br. 2. They entered the Chinatown Restaurant to purchase food and were stopped by Kuzowsky and warned to leave the area. Id. As Plaintiffs began to leave the scene, Kuzowsky allegedly "struck [P]laintiff Eldemire in the leg with his police vehicle." Id. Kuzowsky then got out of his police cruiser and began assaulting NaJame McQueen. Id. At some point during the Kuzowsky-NaJame McQueen altercation, Donnelly and Mancuso arrived. Id. at 3.

Donnelly arrested Anthony McQueen and allegedly assaulted him in the course of doing so. Id. Mancuso, who was Donnelly's partner, arrested Eldemire and allegedly assaulted him during the course of the arrest. Id. NaJame McQueen was also arrested. Id. All three Plaintiffs were charged with Aggravated Assault, Simple Assault, Recklessly Endangering Another Person, Resisting Arrest, Criminal Conspiracy, and Disorderly Conduct. Id. Anthony McQueen and Eldemire were taken to Albert Einstein Medical Center for treatment of their injuries. Id. On July 25, 2008, the criminal charges against all three Plaintiffs were dismissed by the Philadelphia Court of Common Pleas. Id.

Not surprisingly, Defendants' account of the events that took place on March 14, 2008 are different. Defendants allege that they received a radio call about a fight on the highway, and after arriving on scene, noticed approximately fifteen teenagers. Def.'s Br. 1. Kuzowsky utilized the police cruiser's horn to ask the teenagers to disperse. Id. Only about ten of the teenagers responded, so Kuzowsky told those who remained to "keep it moving." Id. All three Plaintiffs allegedly "refused to disperse and were subsequently involved in a physical altercation with Defendant, Officer Kuzowsky." Id.

A. IAD INVESTIGATIONS AND OTHER POLICE MISCONDUCT

Defendants do not make clear in their Motion which IAD records or prior instances of misconduct they seek to preclude. Def.'s Mem. 1-3. In response, Plaintiffs note that Donnelly has "been the subject of other excessive force claims both before and after the subject incident, the latest a shooting and killing of a suspect." Pl.'s Mem. 5-6. Plaintiffs also mention police records from the Rockledge Police Department in Bucks County which involve an off-duty arrest effectuated by Mancuso and Kuzowsky at the Rockledge Pub where they accused the suspect of assault. Id. at 6. Plaintiffs allege that the arrestee accused Mancuso and Kuzowsky of assaulting him during the course of the off-duty arrest. Id. According to Plaintiffs, Mancuso claims that IAD never investigated the Rockledge Pub incident and that he received a commendation for his conduct at the Pub. Id. This incident took place on February 28, 2008, two weeks before the events giving rise to the complaint in this case. Id.

B. THE FOX 29 VIDEOTAPE

At issue in Defendants second Motion in limine is a videotape from the FOX 29 television channel "of an incident occurring on May 5, 2008 depicting three men being pulled from a vehicle and beaten by several police officers." Pl.'s Br. 1. One of those police officers was Donnelly, who was later terminated from his employment with the Philadelphia Police Department. Id. Plaintiffs allege that Donnelly was terminated from his employment "only 8 months after graduating from the Police Academy and serving as a probationary officer" because he was found to have used excessive force on the suspect at issue in the FOX 29 videotape. Id. at 3-4. It appears from Plaintiffs' Memorandum in connection with the IAD Motion in limine that they also plan to introduce a memorandum signed by Donnelly's direct supervisor and Police Commissioner Ramsey rejecting his promotion from probationary officer to police officer. Pl.'s Mem. 12.

The pertinent issue at trial will undoubtedly be whether the force utilized by Defendants was reasonable. See Graham v. Connor, 490 U.S. 386, 395 (1989). Indeed, on June 2, 2009, Plaintiffs stipulated to the dismissal of their claim of municipal liability against the City of Philadelphia which was brought pursuant to Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978). See Stipulation dated 6/2/09 (Doc. No. 20). As such, the Court must determine whether the evidence at issue is admissible for purposes of proving the excessive force claims against the individual Defendants.

II. DISCUSSION

Defendants argue that any IAD investigations, prior police misconduct, and the FOX 29 videotape are inadmissible under Federal Rules of Evidence 404(b) and 403. See Def.'s Mem. 2 (citing Huddleston v. United States, 485 U.S. 681, 685 (1988) (citing Fed. R. Evid. 404(b))); see also Def.'s Br. 2 (citations omitted). Defendants note that "courts consistently hold that in a ยง 1983 action alleging police misconduct, plaintiff may not introduce evidence that the defendant police officer allegedly engaged in other acts of misconduct." Def.'s Mem. 2; Def.'s Br. 2-3 (citing Ricketts v. City of Hartford, 74 F.3d 1397, 1414-15 (2d Cir. 1996)) (additional ...


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