Objective reasonableness, the standard for excessive force
claims (Graham v. Connor, 490 U.S. 386, 396-97, 109 S.Ct. 1865,
104 L.Ed.2d 443 (1989)), requires an analysis of what a
hypothetical reasonable officer would have known and done in
light of the circumstances confronting the actual officer in the
case. Police regulations, general orders and officer training
provide a relevant (although not conclusive) benchmark for making
such a comparison. Any potential for the jury's automatically
finding regulatory violations to equal constitutional violations
can be curbed by appropriate jury instructions. So Officers'
blanket motions are denied as tendered, with the subject to be
taken up in appropriate fashion at trial.
Standards Not Defined by Jury Instructions
Officers' next motion proposes that Edwards' counsel be
prevented from "[r]eferring to a `standard of care,' to any duty,
to any failure to act, to negligence or to any standard other
than the standard defined by the jury instructions for this
case." That motion is offered in a vacuum, lacking any support or
even speculation as to what Edwards might attempt to do in any of
those respects. As such, the motion is inappropriately premature:
There has been no discussion of jury instructions, and no context
exists for considering the propriety of the proposed exclusions.
That motion is denied without prejudice.
Police "Code of Silence"
Officers request the exclusion of all testimony that police
officers in general, or in this case specifically, cover up for
each others' conduct through a code of silence. Although Edwards
responds that he currently does not intend to introduce such
evidence, it remains unknown what testimony could develop at
trial. At that point the evidence could be considered in the
proper context — but for now the motion is denied without
prejudice to its possible future reassertion.
Evidence of Edwards' Reputation
As O. Br. 10 points out, Rule 608 allows evidence of a witness'
good character to be introduced only after the character of the
witness has been attacked. Once again we have a motion that,
because of its prematurity, is both confusing and unnecessary at
this point. It too is denied.
Police Misconduct Publicity
Officers request that recent publicity regarding allegations of
police misconduct or the absence of recording devices during the
January 23, 1995 incident be kept from the jury. Edwards
correctly points out that questions regarding publicity may well
be appropriate during voir dire. Furthermore, it remains unknown
what other relevant testimony could develop at trial, when the
evidence could be considered in the proper context. At this point
the motion is denied without prejudice.
Undisclosed Witnesses and Exhibits
Whether a party may call an undisclosed witness or refer to
undisclosed exhibits is essentially controlled by the FPTO, which
(among other things) establishes the game plan for trial.
Although some exception may arise that would call for further
evaluation during the trial, for the present both motions to bar
such undisclosed evidence are granted.
Next Officers ask that Edwards be barred from eliciting
testimony and from attempting to imply, comment or argue that
Officers' conduct was racially motivated. Edwards has responded
that he currently does not intend to introduce such evidence.
Unless and until some occasion arises to revisit the issue, as
would seem unlikely, the motion is granted.
Sale of Drugs and Probable Cause for Arrest
In part Officers submit motions that are the obverse side of a
coin tendered by Edwards and already addressed in this opinion.
As stated earlier, Edwards' guilty plea to the drug sale is
admissible as a prima facie admission, and it would seem highly
doubtful that he could tender admissible evidence that he did not
sell or deliver illegal narcotics to Thomas and Lindsay (then
acting undercover) on January 23, 1995. To turn to a somewhat
related nonissue, Edwards will not be allowed to introduce
evidence that the Officers lacked probable cause to arrest him
that day, because probable cause is not at issue in this case.
Edwards' Complaint did not include allegations that Officers
cause, and on August 28, 1998 this Court denied an oral motion to
amend the Complaint in that respect. Though the first-mentioned
motion must be denied as a purely technical matter (it may
perhaps be possible for Edwards to seek to counter the prima
facie case on that score), the second motion by Officers is
Intentional Placement of Heroin Bags in Mouth
Edwards judicially admitted, via his answer to Officers' March
25, 1998 Request to Admit Question 4, that he placed 49 bags of
heroin in his mouth when Officers entered the apartment.
Accordingly Officers' motion to bar Edwards from arguing that he
did not intentionally place multiple packages of heroin into his
mouth is granted.
Pain and Disability Testimony
Officers ask that Edwards be barred from testifying as to any
future or permanent disability, including the possibility of
future surgery, as well as from giving any medical testimony at
all. They invoke Hiatt v. Finkl, 132 Ill. App.2d 92,
265 N.E.2d 690 (2d Dist. 1971) in purported support of that proposition, but
neither that case nor any other forecloses Edwards from providing
any medical testimony at all (indeed, Hiatt itself permitted
some such testimony by the plaintiff there). For example, Edwards
may of course testify both as to his personal knowledge of his
condition and as to his doctors' statements about his condition
that contribute to his state of mind. Any other possible
testimony is more properly evaluated in the context of the trial.
Officers' global motion is denied.
Calling Witness Shainett Haynes
Officers request that Edwards be barred from calling Shainett
Haynes ("Haynes") to testify at trial unless that intention is
disclosed to them no later than 21 days before the scheduled
trial date (neither side now knows Haynes' whereabouts). Because
any prospect of locating Haynes is necessarily speculative,
Officers' 21-day requirement is denied, but if Haynes is located
hereafter Edwards will not be allowed to call her as a witness
unless Officers are afforded an adequate opportunity to take
Haynes' deposition beforehand (this requires, of course, that
Edwards must disclose Haynes' current address or location to the
Officers as soon as he or his counsel learn it).
As stated earlier, Edwards' motions embodied in Dkt. Nos. 50
and 51 are denied, while Edwards' motions embodied in Dkt. Nos.
49 and 52 are granted in part and denied in part. Because all of
Officers' motions in limine are included in Dkt. No. 48, those
motions are granted in part, denied in part and deferred in part
for the reasons stated in this opinion.