United States District Court, D. Kansas
MEMORANDUM AND ORDER
J. THOMAS MARTEN, District Judge.
Before the court are various motions in limine by both parties (Dkts. 80, 81, 82, 91). This action stems from the detention of plaintiff Jacob Molina on his property by defendants Gerg Perez and Karl Timmons. Plaintiff filed a Bivens action against defendants alleging Fourth Amendment violations for unreasonable seizure and excessive use of force. The matter is scheduled for trial on January 21, 2015. Both parties appeared before the court to argue these motions on January 14, 2015. The court addresses each motion in turn.
Plaintiff Jacob Molina is a pastor who lives with his wife on Barron Road in Wichita, Kansas. The couple also owns a home located at 2216 S. White Cliff Road in Wichita, where plaintiff's brother-in-law lives. The brother-in-law and plaintiff's father-in-law share the same name: Jose Florencio Flores-Euceda.
Defendant Perez has been employed by Immigration and Customs Enforcement ("ICE") and its predecessor agency, Immigration and Naturalization Service, since May 1997. He is currently a Deportation Officer (DO) under the ICE Office of Enforcement and Removal Operations (ERO). Defendant Timmons has been employed by ICE for approximately 19 years. He is currently employed as a DO with the ICE ERO Fugitive Operations Team in Wichita. Both defendants have training on the proper use of force by law enforcement officers.
On July 1, 2011, defendants received information about an individual named Jose Antonio Flores-Hernandez (the "target"), a citizen of Honduras with an outstanding warrant of removal that was issued in August 2005. Through a search of available databases, Timmons determined that a male with the target's name and date of birth possibly resided at 2216 S. White Cliff Road, Wichita, Kansas 67207.
Timmons conducted surveillance at the target address twice in August 2011. He performed registration checks on the license plates of vehicles parked at the White Cliff residence and discovered who owned the vehicles. One of the license plates was registered to plaintiff at 9130 E. Barron Road, Wichita, Kansas 67207. Timmons learned from a records check that plaintiff had been arrested by the Wichita Police Department for unlawful discharge of a firearm on August 11, 1992, but the misdemeanor complaint had been dismissed. Timmons also checked driver's license photographs to determine whether the target was using "Jacob Molina" as an alias. Plaintiff's photograph established that he was not the target.
On August 17, 2011, Perez and Timmons went to the White Cliff address to conduct additional surveillance, hoping to locate and apprehend the target. At approximately 6:30 a.m., Timmons observed a gray Honda registered to plaintiff in the driveway of the White Cliff residence, along with a new vehicle: a green Honda SUV. Timmons called for a registration check on the green Honda; it was registered to a "Jose Flores" living at 2216 S. White Cliff Lane, Wichita, Kansas 67207. Timmons believed the information connected the target to the White Cliff residence, as suspected.
Defendants then decided to approach the house to talk with the occupants. Neither officer was wearing an official law enforcement uniform. Timmons was wearing civilian attire with his badge on a neck chain displayed outside his shirt and body armor. Perez was wearing trousers and a blue polo shirt. He also wore a tan vest over his body armor, which displayed a "POLICE" patch and a patch depicting an ICE badge, and his badge on a neck chain outside his vest.
Between 7:45 and 7:50 a.m., Timmons knocked on the front door of the residence and rang the doorbell. Nobody answered the door. He knocked and rang the doorbell again but received no answer. Two dogs came to the window and barked. Timmons stayed near the front door, periodically knocking and ringing the doorbell. He believed the occupants might still be asleep or just awakened and could be getting dressed.
At approximately 7:55 a.m., plaintiff's brother-in-law, Jose Florencio Flores-Euceda, answered the door but did not introduce himself. He stayed inside with the storm door closed and talked to Timmons through the glass. Timmons introduced himself as an ICE agent. Jose asked Timmons what he was doing there. Timmons looked at the target's photo and saw that the man who answered the door was not the target. Timmons said he was looking for Jose Flores, the man who drove the green SUV. Jose said that was his father. Timmons knew that the Jose Flores he was looking for was too young to be this man's father, so he asked the man in the doorway whether he was Jose Flores. The man said that he was not.
The dogs continued barking in the house. Timmons asked if he and Perez could come in and talk with the man, and if he would put the dogs away. The brother-in-law responded that he would go put the dogs away and he shut the door. Defendants waited about ten minutes before Timmons knocked and rang the doorbell again, but no one responded.
Unbeknownst to defendants, the brother-in-law had called plaintiff after shutting the door and told him two men were at the house. Plaintiff immediately drove to the house, arriving at approximately 8:05 a.m. When plaintiff got out of his car, Timmons recognized him from his driver's license photograph.
Timmons identified himself as an ICE agent and called out the name "Jacob Molina." Plaintiff acknowledged that this was his name. Perez also introduced himself as an ICE agent and asked whether plaintiff lived at the White Cliff residence. Plaintiff replied that it was his property, but did not say that he lived at the residence.
Plaintiff asked defendants why they were there, and they said that they were investigating. He asked them whether they had a warrant to search the property and defendants replied that they did not. Plaintiff suggested that, as the property owner, he could tell them to leave if they did not have a warrant. Defendants did not have a warrant and ordered plaintiff to leave.
Plaintiff then took out his cell phone and called 9-1-1. He gave the dispatch operator the White Cliff address and said there were two individuals on his property. Before he could give any additional information, defendants approached plaintiff from behind, forced him to the ground and handcuffed him, leaving him face-down on the ground. As a result, plaintiff suffered a large welt and some bruising.
After helping plaintiff to a sitting position, Timmons called an assistant U.S. Attorney. They discussed whether defendants should obtain a search warrant. While Timmons was on the phone with the attorney, plaintiff's wife arrived. Timmons explained to plaintiff and his wife that the officers were looking for Jose Antonio Flores-Hernandez, and he showed a photograph of the suspect. Plaintiff and his wife stated that they did not know the suspect and that he did not live at the White Cliff residence. A short time later, an older Hispanic man approached the house on foot. Plaintiff's wife introduced the man as her father, Jose Florencio Flores-Euceda. This was not the Jose Flores the officers were looking for.
A pair of Wichita Police Department officers arrived at 8:27 a.m., summoned by plaintiff's 9-1-1 call. Plaintiff was released from the handcuffs. He then wrote down defendants' names so he could file a complaint with their ICE supervisor. Plaintiff filed this Bivens action against Timmons and Perez, asserting Fourth Amendment violations for unreasonable seizure and excessive force.
II. Legal Standard
The motion in limine provides a trial court the opportunity "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." United States v. Cline, 188 F.Supp.2d 1287, 1291 (D. Kan. 2002) (quoting Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir. 1996)). The power to make evidentiary rulings in limine is not expressly provided by statute or rule; it stems from the court's authority to administer and try cases. Luce v. United States, 469 U.S. 38, 41 n.4 (1984); see FED. R. EVID. 103(d), 104(c), 402, 403, 611(a). Such rulings may increase judicial efficiency, but many evidentiary rulings "should be deferred until trial so that questions of foundation, relevancy and potential prejudice may be resolved in the proper context." Mendelsohn v. Sprint/United Mgmt. Co., 587 F.Supp.2d 1201, 1208 (D. Kan. 2008) (citing Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975)). An in limine evidentiary ruling is subject to change at the court's discretion "when the case unfolds" in trial. Luce, 469 U.S. at 41-42.
A. Defendants' Right to Raise Qualified Immunity Again at Trial (Dkt. 80)
Defendants were twice denied summary judgment on a qualified immunity defense. (Dkts. 43, 70). They identify their right to raise the qualified immunity defense at trial despite the court's denial thereof on summary judgment. "A qualified immunity defense, of course, does not vanish when a district court declines to rule on the plea summarily. The plea remains available to the defending officials at trial...." Oritz v. Jordan, 131 S.Ct. 884, 888-89 (2011) (where district court denied summary judgment on qualified immunity). Thus, defendants may raise the defense again at trial.
B. Defendants' Motions to Exclude Evidence (Dkt. 80)
1. Motion to Exclude Prior Disciplinary Actions Against Agent Timmons
During discovery, defendant Timmons disclosed two separate instances of prior workplace disciplinary actions taken against him. The first, an incident between Timmons and another ICE employee, was characterized as "Disrespectful Conduct to Others." The second, stemming from an argument between Timmons and a deputy sheriff in a restaurant, was characterized as "Conduct Unbecoming" and "Failure to Follow Policy." The second incident also involved the misuse of an agency computer database for a personal investigation. Timmons argues that these instances should be excluded as irrelevant, or, alternatively, under Federal Rule of Evidence 403. Plaintiff argues that the discipline related to Timmons's personal use of a government database is admissible for impeachment purposes because it speaks to his truthfulness or untruthfulness.
Evidence that has any tendency to make a fact of consequence more or less probable is relevant. FED. R. EVID. 401. Irrelevant evidence is not admissible. FED. R. EVID. 402. Extrinsic evidence of specific instances of conduct "is not admissible to attack or support [a] witness's character for truthfulness." FED. R. EVID. 608(b). Such instances may be inquired into on cross-examination if "they are probative of the character for truthfulness" of the witness or another witness. Id.
The misuse of a government database for personal investigation, which resulted in two weeks of discipline, does not tend to make any fact of consequence in this matter more or less probable and is therefore irrelevant. Nor does it bear on Agent Timmons's character for untruthfulness. It may reflect his decision to break a rule, or other similar matters of personal judgment, but it is not an inherently dishonest act. Further, Agent Timmons did not attempt to conceal his transgression. This evidence is inadmissible for impeachment or any other purpose.
The motion is GRANTED.
2. Motion to Exclude the Possibility of ...