MUADHDHIN BEY-COUSIN v. OFFICER ERNEST POWELL, et al.
Case No. 2:19-cv-01906-JDW
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
November 9, 2021
Vinсent Van Gogh summarized an artist‘s inspiration: “You must start by experiencing what you want to express.” But while many artists base their art on experience, they also embellish, change, or distort their experience for purposes of their craft. The question before the Court is whether a party to a lawsuit can use an artist‘s expressions against him as evidence
Muadhdhin Bey-Cousin is one such artist. As a budding hip/hop rap artist, he released an album called “Busted by Da Fedz Vol. 1” while facing gun possession charges. Now, Defendants Ernest Powell and Phillip Cherry want to use Mr. Bey-Cousin‘s lyrics against him. But Officers Powell and Cherry have not put before the Court enough facts to rebut the presumption that Mr. Bey-Cоusin‘s lyrics are art. The Court will therefore exclude them from the trial in this case.
I. BACKGROUND
Late in the evening on March 28, 2016, two officers in the Philadelphia Police Department heard a call for back-up which included a description of a 160-170 pound, 21-year-old, light-skinned African American man with minimal facial hair who was wearing dark blue pants and a red hooded sweatshirt (or red jacket). In rеsponse to that call, those officers, Defendants Ernest Powell and Phillip Cherry, stopped Mr. Bey-Cousin, a 200 pound, 32-year-old, dark-skinned African American man with a long beard who was wearing blaсk sweatpants and a red puffer jacket. That stop led to an arrest and conviction in federal court for being a felon in possession of a firearm. Mr. Bey-Cousin remained incarсerated from March 28, 2016, until December 2018, when the Third Circuit vacated the conviction. Mr. Bey-Cousin alleges that Officers Powell and Cherry planted a firearm on him during the arrest. In his Complaint, he asserts violations of
Mr. Bey-Cousin had an inchoate music career at the time of his arrest. Following his arrest, he released “Busted By Da Fedz Vol. 1,” which includes songs titled “Busted by Da Fedz,” “Gun Talk,” and “Court Apparance” [sic] and an album cover that depicts Mr. Bey-Cousin handcuffed in federal court during the prosecution. Mr. Bey-Cousin has filed a motion to exclude any evidence of his lyrics. Officers Powell and Cherry assert the songs describe the facts at issue and suggest that the Court permit them to cross-examine Mr. Bey-Cоusin about the lyrics. Officers Powell and Cherry also argue that the jury should hear Mr. Bey-Cousin‘s lyrics to assess Mr. Bey-Cousin‘s claim for damages based on harm to his career.
II. LEGAL STANDARD
The Federal Rules of Evidencе contain no express authority for motions in limine. Regardless, both case law and practice recognize these motions. See, e.g., Ohler v. United States, 529 U.S. 753, 758 (2000). The key function of a motion in limine is to “exclude prejudicial evidence befоre the evidence is actually offered.” Luce v. United States, 469 U.S. 38, 40 (1984). A ruling on a motion in limine is essentially a preliminary ruling which the Court can reconsider during trial. See id. at 41.
III. ANALYSIS
A. Relevance Of The Lyrics To Liability
Under
These rules require the Court to start with a presumption that artistic expression is not faсtual, for two reasons. Artists might base their work on real life, but they take creative liberties that blur the line between fact and fiction. Embellishment and fictional elements pervade, even when thе artist draws on real world experience for inspiration. Thus, the introduction of artistic expression as a party admission will often not further the end of ascertaining the truth. In addition, if artists or budding artists know that their expression might put them in legal jeopardy, they might put down their pens, pocket their paintbrushes, or bite their tongues. As a society, we encourage that type of expressiоn. A rule that discourages it would not be just, either to the parties or to the broader public. The Court recognizes that starting with a presumption that artistic expression is not a factual admissiоn might in some cases lead to the exclusion of admissible evidence. But the First Amendment requires no less.
To overcome that rule, the proponent of evidence must offer some preliminary indicia that the artistic expression is a truthful narrative, like the inclusion of factual detail that is not publicly available. In an effort to meet that burden, Officers Cherry and Powell point to thе “seemingly autobiographical details involving the arrest and prosecution at issue in this case.” (ECF No. 52 at 3.) But their own words betray them: a “seemingly” autobiographical work is not necessarily autobiographical.
First, it is not enough just to show that an artist used the first person. Artists use the first-person as a tool of creative expression, sometimes to describe themselves, sometimes to describe a fictionalized version of themselves, and sometimes to describe a fictional character. Freddy Mercury did not confess to having “just killed a man” by putting “a gun against his head” and “рull[ing] the trigger.”1 Bob Marley did not confess to having shot a sheriff.2 And Johnny Cash did not confess to shooting “a man in Reno just to watch him die.”3
Second, it is not enough to show that an artist‘s expression bears some resemblance to real life events. Writers riрped Law & Order‘s scripts from the headlines, but they disclaimed, “The following story is fictional and does not depict any actual person or event.”4
Third, it is not enough even to show that an artist wrote in the first person about events that resemble real life. Examples abound. In the television series The Goldbergs, Adam Goldberg chronicles his childhood exploits, with video excerpts at the end showing the real-life events that inspired the episode. Still, no one understands the show to be an aсcurate representation of events. The movie Captain Phillips depicts acts of heroism, but at least some reports suggest that it embellishes the events to favor Captain Phillips himself.5 Likewise, Eight Mile appears to be an account of Eminem‘s youth in Detroit, but in fact it is a fictionalized account that bears parallels to his real experience.6 And musically, when Calvin Broadus (aka Snooр Dogg) released “Murder Was the Case” after his prosecution for the murder of a rival gang member, he did not suggest that he was confessing to a version of events other than what he presentеd at trial.7
Officers Cherry and Powell argue that the Court should permit the jury to sort out whether Mr. Bey-Cousin‘s lyrics are factual or fictionalized. But doing so would not be a search for truth. It would
B. Relevance Of The Lyrics To Damages
The jury does not need to hear Mr. Bey-Cousin‘s music, or review his lyrics, to consider his claim for damages. Tastes differ, and the Court will nоt ask the jury to determine whether Mr. Bey-Cousin‘s music is good or is likely to be a commercial success. The jury‘s damages analysis will rise and fall on the financial success that Mr. Bey-Cousin had experienced from his musical career or that he could reasonably hope to experience (without veering into speculation).
IV. CONCLUSION
As a society, we have decided to encourage free expression in all its forms. The Court will not adopt a rule that might undermine that goal. It therefore adopts a rule that presumes that artists tell stories, even when they draw inspiration from reality. Officers Cherry and Powell have not overcome that burden, so the Court will grant Mr. Bey-Cousin‘s Motion and preclude evidence of his lyrics. An appropriate Order follows.
BY THE COURT:
JOSHUA D. WOLSON, J.
November 9, 2021