Dunham v. Philip Lobello

Background

Jermaine Dunham sued New York City Police Officer Philip Lobello under 42 U.S.C. § 1983, a federal civil-rights law, alleging excessive force during a 2008 arrest. In anticipation of trial, the parties filed several motions in limine, meaning pretrial requests asking the court to decide whether particular evidence or arguments could be presented to the jury. The order addressed those motions and concluded that they were GRANTED in part and DENIED in part.

Dunham’s motions

The court granted Dunham’s requests to bar his 1999 youthful-offender adjudication, 2005 disorderly-conduct conviction, and 2009 disorderly-conduct conviction for impeachment. It also granted his request to exclude his 2010 and 2011 firearm-possession convictions. The court denied Lobello’s request to introduce those firearm convictions and denied Lobello’s separate request to use Dunham’s later arrest record to show bias against law enforcement or to rebut damages.

The court granted Dunham’s request to exclude his 2011 resisting-arrest conviction. It ruled that the conviction could not be used to impeach him or as proof that Lobello’s use of force was justified. Lobello’s corresponding motion was denied.

The court denied Dunham’s request to exclude the physical firearm recovered during the 2008 arrest. Lobello could display the firearm because it could help the jury evaluate what he felt and believed he was facing. The court also denied Dunham’s request to exclude evidence about an alleged pre-arrest car-window incident, but stated that the issue could be raised again at trial if Dunham opened the door to it.

Lobello’s motions

The court granted Lobello’s request to remove the City of New York from documents presented to the jury and granted the request that his lawyers be called attorneys from the Office of the Corporation Counsel rather than “city attorneys.” The court granted in part Lobello’s request to bar evidence or argument about possible City indemnification. Such evidence generally could not be introduced, but Dunham could introduce it if Lobello raised his personal financial resources or ability to pay damages.

The court denied Lobello’s request to prevent Dunham from suggesting a specific dollar amount for damages, although Lobello could propose a limiting instruction. The court denied at this stage Lobello’s request concerning his disciplinary history, prior lawsuits, and other alleged acts, reserving judgment until those issues could be considered in the context of trial. The court granted the request to exclude unrelated police or correctional misconduct, media reports, class actions, and criminal investigations, while leaving questions about particular terminology for trial.

The court denied Lobello’s request to exclude the New York City Police Department Patrol Guide, the police dog’s training records, and veterinary records, subject to later relevance decisions and possible limiting instructions. On whether Dunham could deny resisting arrest or possessing a weapon, the court granted Lobello’s request in part: Dunham could not testify that he never resisted arrest. The court also granted that request in part and denied it in part regarding the firearm. Dunham could not deny possessing the loaded firearm, but he could argue that he did not intend to use it against another person.

The court granted Lobello’s requests concerning evidence supporting dismissed claims, claims involving Officer Oliver, and municipal-liability theories that had been stayed or separated from this case. It denied at that stage the request to bar all arguments that Lobello’s actions were racially motivated. The court also denied at that stage the request to exclude arguments that Lobello should have acted differently or escalated the situation.

The court denied Lobello’s motions to exclude expert testimony from Dr. Marc Serota and testimony from Patricia Young. It found that Serota was qualified to testify about the presentation, treatment, and medical effects of dog-bite injuries and that the challenges to his methods could be addressed through cross-examination. Young could testify about her observations of Dunham’s injuries and damages. The court also denied Lobello’s motion to introduce Dunham’s criminal history.

Finally, the court denied Lobello’s renewed request for qualified immunity. It stated that its earlier summary-judgment ruling had found that Lobello was not entitled to qualified immunity at that stage and that a motion in limine was not the proper vehicle for revisiting that ruling. The court nevertheless permitted Lobello to submit proposed special questions for the jury concerning qualified immunity.

Disposition

Judge Andrew L. Carter, Jr. ordered that the parties’ motions in limine were GRANTED in part and DENIED in part. The order concerned what evidence and arguments could be presented at the upcoming trial; it did not decide the underlying excessive-force claim.