Case Information
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA MALCOLM NIGEL SCOTT, et al. ,
Plaintiffs ,
Case No. 4:17-CV-400-GAG-CDL v.
CITY OF TULSA, OKLAHOMA, et al. ,
Defendants . OPINION AND ORDER
GUSTAVO A. GELPÍ, Circuit Judge.
Before this Court are two sets of motions in limine : (1) Plаintiffs Malcolm Scott (“Plaintiff Scott”) and De’Marchoe Carpenter’s (“Plaintiff Carpenter,” collectively, “Plaintiffs”) nine motions in limine (Dkt. No. 322, “Plaintiffs’ Motions”); and (2) Defendants City of Tulsa, Oklahoma (“Defendant Tulsa”), Gary Meek (“Defendant Meek”), and Randall Solomon’s (“Defendant Solomon,” collectively, “Defendants”) fourteen motions in limine (Dkt. No. 321, “Defendants’ Motions”). For the reasons discussed below, this Court GRANTS IN PART AND DENIES IN PART Plaintiffs’ Motions and GRANTS IN PART AND DENIES IN PART Defendants’ Motions.
I. BACKGROUND
Following their decades-long imprisonment, Plaintiffs were exonerated and subsequently filed this lawsuit in July 2017. They allege “claims under 42 U.S.C. § 1983 and Oklahoma state law against (among others) Defendants Tulsa, Meek, and Solomon.” (Dkt. No. 326 at 2.) Following discovery, Defendants moved for summary judgment, which this Court granted in part and denied in part in March 2025. (See generally Dkt. No. 302.) The claims thаt survived this Court’s summary judgment ruling are:
(1) Plaintiffs’ Monell claim against Defendant Tulsa based solely on the “single-incident failure-to-train” theory of municipal liability; (2) Plaintiffs’ Brady claims against Defendant Meek based solely on his threatening others to fabricate their statements; (3) Plaintiffs’ substantive due process claims against Defendant Meek based solely on his fabricating evidence; and (4) Plaintiffs’ substantive due process claim against Defendant Solomon based solely on inaccuracies in his reporting.
(Dkt. No. 326 at 2; see also Dkt. No. 302 at 26-27.) In June 2025, Plaintiffs and Defendants filed the instant motions in limine . (Dkt. Nos. 321, 322.) The parties timely briefed the Motions. (Dkt. Nos. 333, 334, 341, 342.)
II. STANDARD
“A motion
in limine
is a request for guidance by the court regarding an evidentiary
question, which the court may provide at its discretion to aid the parties in formulating trial
strategy.”
Edens v. The Netherlands Ins. Co.
,
These principles guide this Court in ruling on the parties’ Motions below.
III. DISCUSSION
Plaintiffs and Defendants both ask this Court to resolve evidentiary disputes. Plaintiffs make nine such requests, and Defendants submit fourteen. This Court starts with Plaintiffs’ Motions before turning to Defendants’.
A. Plaintiffs’ Motions in Limine
At the outset, this Court notes that Defendants do not contest several of Plaintiffs’ Motions. In particular, Defendants have not opposed Plaintiffs’ requests (1) to exclude any references to collateral source payments (Motion No. 6); to bar Defendants from referring to or introducing into evidence Plaintiffs’ decision not to testify at their criminal trial (Motion in Limine No. 8); and to preclude any arguments that appeal to jurors’ pecuniary interests as taxpayers (Motion No. 9). (See Dkt. No. 322 at 26-27, 39-31.) Indeed, Defendants expressly concede these points. (Dkt. No. 333 at 13, 15.) So this Court grants Plaintiffs’ uncontested Motions in Limine Nos. 6, 8, and 9.
Plaintiffs’ Motion No. 1 Regarding Evidence that Plaintiffs Were Declared Actually Innocent
Plaintiffs ask this Court to issue an order admitting the State of Oklahoma’s declaration of Plaintiffs’ actual innocence of the 1994 shooting of Karen Summers (“Summers”). (Dkt. No. 322 at 8-9.) Plaintiffs contend that the state court’s finding would ensure a fair trial and would be relevant to proving Defendants’ potential liability and damages. (Id. at 9-10.) Plaintiffs also maintain that, because Defendаnts dispute Plaintiffs’ innocence, excluding evidence of their innocence would be unfairly prejudicial in contravention of Federal Rule of Evidence (“Rule”) 403. (Id. at 12-13.) Defendants oppose the Motion, contending that evidence of actual innocence is not relevant to the remaining claims, and that its admission would substantially outweigh its probative value. (Dkt. No. 333 at 4.) After considering these arguments, this Court denies Plaintiffs’ Motion.
Although this Court previously indicated that evidence of Plaintiffs’ innocence could be
relevant to the issues in this case, (see Dkt. No. 338 at 7), that discussion is not dispositive on this
particular issue. After all, evidence that the State of Oklahoma declared Plaintiffs actually innocent
differs from еvidence tending to prove that Plaintiffs were, in fact, innocent.
See Murphy v. City
of Tulsa
, No. 15-528,
Still, this Court does foresee potentially permissible purposes for admitting the declaration
of actual innocence. Should Plaintiffs wish to move into evidence the declaration, they may do so
only after consulting Defendants’ counsel to draft a stipulation or limiting instruction.
See Patrick
v. City of Chicago, Ill.
,
Plaintiffs’ Motion in Limine No. 2 Regarding Excessive and Personal References to Gangs
Plaintiffs move this Court to bar Defendants from referring to Plaintiffs’ alleged gang affiliation and from making other comments about gangs. (Dkt. No. 322 at 15.) They say that such evidence is irrelevant under Rule 402, is highly prejudicial in violation of Rule 403, and constitutes inadmissible propensity evidence under Rule 404(b). (Id. at 18-19). Defendants counter, arguing that Ken Price (“Price”) and Rashun Williams (“Williams”)—the allegedly coerced witnesses—were members of the Hoover Crips gang, and both believed Plaintiffs Carpenter and Scott were members of a rival gang. (Dkt. No. 333 at 6.) Those beliefs, Defendants aver, tend to show that Price and Williams were motivated to make false statements due tо their alleged rival gang membership, not because of any alleged coercion or fabrication by Defendants. (Id.) This Court denies Plaintiffs’ Motion without prejudice.
To be sure, evidence of gang affiliation may be “excluded as irrelevant and unduly
prejudicial where there is no evidence the arresting officer knew of such affiliation.”
Hawkins v.
Walsh
, No. 16-98,
Such is the case here. Defendants allege that during Price’s recorded interview with Defendant Meek, Price discussed his gang membership and his belief that Plaintiff Scott belonged to a rival gang, putting Defendant Meek on notice of potential gang membership. (Dkt. No. 333 at 7.) In addition, there is evidence to suggest that both Price and Williams wanted revenge against Plaintiffs because of Plaintiffs’ alleged membership in then-recent gang-related activities. (Id. at 8.) At this pre-trial stage, this Court cannot properly evaluate the probative and prejudicial value of gang-membership evidence. This Court accordingly denies Plaintiffs’ Motion in Limine No. 2 without prejudice.
Of course, evidence of Plaintiffs’ gang affiliation carries with it a significant danger of undue prejudice. So, should Defendants seek to admit such evidence, Plaintiffs may raise specific and timely objections or suggest a limiting instruction. This Court will be better situated to rule on those objections at trial.
Plaintiffs’ Motion in Limine No. 3 Regarding Prior Bad Acts, Prior Convictions, and Character Evidence
Plaintiffs press this Court to bar Defendants from referring to “any prior or alleged subsequent bad acts or character evidence of the Plaintiffs and third-party witnesses аt trial.” (Dkt. No. 322 at 20.) Conversely, Defendants say that such evidence may be required—and permissible—depending on Plaintiffs’ presentation at trial. (Dkt. No. 333 at 10-11.) This Court agrees with Defendants.
Rule 404 prohibits propensity evidence, that is, evidence of a person’s character or
character trait offered “to prove that on a particular occasion the person acted in accordance with
th[at] character or trait.” Fed. R. Evid. 404(a)(1). Yet the Rule does permit a party to introduce
“[e]vidence of any other crime, wrong, or act . . . for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or laсk of
accident.” Fed. R. Evid. 404(b)(2). The admissibility of such evidence “depend[s] heavily on the
context in which the evidence is offered.”
United States v. Haas
, No. 21-0160,
Given this multi-factor, context-dependent determination—coupled with Defendants’
plausible and potentially probative reasons for seeking to introduce evidence of prior bad acts—
this Court finds it premature to rule in Plaintiffs’ favor and, thus, denies without prejudice
Plaintiffs’ Motion No. 3. Though the prior acts Defendants may seek to introduce could
be prejudicial, this Court cannot speculate as to the probative value of such evidence without the
context of trial.
See Delaney
,
Plaintiffs’ Motion in Limine No. 4 Regarding References to Dismissed Defendants and Claims
Plaintiffs request that this Court bar evidence of any individuals and claims dismissed from this suit. (Dkt. No. 322 at 23.) Citing Rules 401, 402, and 403, they claim that such evidence is irrelevant and could mislead and unduly prejudice the jury. (Id. at 24.) Though Defendants agree that there is no reason to introduce evidence of the defendants and individuals dismissed from this suit, Defendants ask this Court to defer ruling on this Motion. (Dkt. No. 333 аt 11-12.) Defendants contend that they should be able to raise the fact that certain defendants and claims were dismissed if Plaintiffs make arguments to the jury that relate to those dismissed defendants and claims. (Id. at 12.)
The Court finds that Plaintiffs’ Motion is premature and will address the issue if it arises at trial. Accordingly, this Court denies Plaintiffs’ Motion No. 4 without prejudice.
Plaintiffs’ Motion No. 5 Regarding Witnesses Commenting on the Credibility of Other Witnesses
Plaintiffs ask this Court to preclude all witnesses from testifying on the “credibility of any other witness, party, or non-party.” (Dkt. No. 322 at 25.) They contend that allowing such testimony would usurp the jury’s role, improperly influence the jury, potentially extend the length of trial, and otherwise distract the jury from its task of determining the accuracy of witness testimony. (Id. at 26.) In response, Defendants urge this Court to deny Plaintiffs’ Motion because Defendants should be “able to talk about . . . whether in their training and experience they believed the witnesses they talked to.” (Dkt. No. 333 at 12.) Such evidence, Defendants submit, is relevant and admissible in defending against Plaintiffs’ allegations that Defendants manipulated evidence related to what witnesses told them. (Id. at 12-13.)
Rule 608(a) permits parties to attack a witness’s credibility with reputation or opinion
evidence about the witness’s truthfulness.
See Payne v. Myers
, No. 14-39,
Plaintiffs’ Motion in Limine No. 7 Regarding Evidence of Defendants’ Commendations and Other References to Good Character Plaintiffs move this Court to exclude evidence of Defendants’ commendations, awards, promotions, performance reviews, and other references to Defendants’ good character under Rule 404(a). (Dkt. No. 322 at 27-28.) Defendants counter, arguing that the very nature of Plaintiffs’ claims inherently impugns Defendants’ character for truthfulness. (Dkt. No. 333 at 14.) And so, Defendants’ argument goes, they must be able to offer—at the outset—the disputed evidence to rehabilitate their character for truthfulness under Rule 608(a). This Court grants in part and denies in part Plaintiffs’ Motion. On the one hand, this Court does not permit Defendants to preemptively introduce evidence of their accolades. Such evidence would run afoul of Rule 404(a). On the other hand, Defendants’ point is well-taken: their alleged misconduct underlying Plaintiffs’ claims is such that Plaintiffs inevitably will impugn Defendants’ character for truthfulness. This Court will evaluate at the time of trial whether Plaintiffs’ proffers open the door for Defendants to introduce evidence of their accolades to rehabilitate their character. For these reasons, this Court grants in part and denies in part Plaintiffs’ Motion in Limine No. 7.
B. Defendants’ Motions in Limine
Having ruled on each of Plaintiffs’ Motions, this Court turns to Defendants’ Motions. To
begin, this Court expeditiously disposes of several of Defendants’ Motions. For one thing,
Plaintiffs have not contested Defendants’ Motions
in Limine
Nos. 10, 12, and 14.
[6]
So this Court
grants those motions. And, for another thing, Defendants have failed to adequately develop several
motions—specifically, Defendants’ Motions
in Limine
Nos. 3, 4, 5, 7, and 9—so this Court denies
those as well.
[7]
Take, for instance, Motion
in Limine
No. 3. Through it, Defendants seek to exclude
“any evidence of any aspect of th[e] investigation other than thе interviews of Ken Price and
Rashun Williams.” (Dkt. No. 321 at 15.) Consider, too, Motion
in Limine
No. 7, which seeks to
bar “any evidence or mention of the interrogation of Plaintiffs during the investigation.” (Id. at
19.) As presented to this Court, those motions
in limine
are cursory and overly broad. In other
words, the motions “fail[] to identify the evidence with particularity or to present arguments with
specificity.”
Read
,
Defendants’ Motion No. 1 Regarding Affidavits of Price, Williams, and Darrell Benson
Defendants move to exclude the affidavits of Price, Williams, and Darrell Benson (“Benson”). (Dkt. No. 321 at 7, 10.) They argue that these affidavits constitute inadmissible hearsay. (Id.)
Hearsay is “an out-of-court statement ‘offer[ed] in evidence to prove the truth of the matter
asserted in the statement.”
United States v. Peppers
, 138 F.4th 1299, 1308 (10th Cir. 2025)
(alteration in original) (quoting Fed. R. Evid. 801(c)). It “is generally inadmissible as evidence
because it is considered unreliable.”
Id.
(quoting
United States v. Lozado
,
These legal principles frame this Court’s assessment of Price’s, Williams’s, and Benson’s affidavits. And because thеre are potentially permissible purposes for admitting each of the affidavits, this Court denies Defendants’ Motion No. 1.
Start with Price’s affidavits. Defendants move to exclude them on the grounds that they are inadmissible hearsay, and that Price is available to testify at trial, which precludes use of his affidavits. (Dkt. No. 321 at 10.) Plaintiffs, however, say that they will subpoena Price to testify at trial in lieu of seeking to admit his affidavits. (Dkt. No. 334 at 10-11.) In any event, Plaintiffs insist, the affidavits are potentially admissible for non-hearsay purposes, so this Court should defer ruling on the Motion until trial. (Id. at 11.) This Court agrees. At this pre-trial stage, this Court cannot speculate as to what non-hearsay purpose Price’s affidavits will serve. So this Court denies without prejudice Defеndants’ Motion No. 1 as to Price’s affidavits. Defendants may timely and specifically contest the admissibility of the affidavits at trial.
Then move to William’s and Benson’s affidavits. Citing the rules against hearsay, Defendants move to exclude them, arguing that there are no exceptions or non-hearsay purposes for their admission. (Dkt. No. 321 at 7-8, 10-11.) Plaintiffs disagree, contending that both Williams’s and Benson’s affidavits are admissible under Rules 804(b)(3)(A) and 807. (Dkt. No. 334 at 12, 16.) Plaintiffs are correct.
Rule 804(b)(3)(A) articulates the “statement-against-penal-interest” exception to the rule
against hearsay.
United States v. Salas-Aguayo
, No. 12-3109,
William’s and Benson’s affidavits satisfy these requirements. As to the first element, Plaintiffs allege that both Williams and Benson are deceased and thus unavailable. (Dkt. No. 334 at 12, 16.) As to the second, Williams and Bensоn later recanted their sworn testimony in the original trial, exposing themselves to criminal liability for submitting false affidavits. (Id.)
Because Williams’s and Benson’s affidavits may be admissible under Rule 804(b)(3)(A), and for other purposes besides proving the truth of the matter asserted, Defendants have therefore failed to show that such evidence is clearly inadmissible on all potential grounds. This Court defers deciding the admissibility of Williams’s and Benson’s affidavits until trial. And so, this Court denies without prejudice Defendants’ Motion No. 1 as to Price’s, Williams’s, and Benson’s affidavits.
Defendants’ Motion No. 2 Regarding Plaintiffs’ Actual Innocence or Claim of “Innocence”
Defendants request that this Court exclude any evidence of Plaintiffs’ innocence, including any determination of Plaintiffs’ “actual innocence.” (Dkt. No. 321 at 11.) They advance largely the same arguments as in their Response to Plaintiffs’ Motion in Limine No. 1. (Dkt. No. 333 at 1-5.) For the same reasons underlying the denial of Plaintiffs’ Motion No. 1, this Court denies without prejudice Defendants’ Motion No. 2. Defendants may raise timely and specific objections to evidence of Plaintiffs’ innocence at trial, at which time the Court will consider such evidence in its proper context.
Defendants’ Motion No. 6 Regarding the Failure to Conduct Forensic Testing
Defendants ask this Court to exclude any evidence of the failure to conduct forensic testing on physical evidence. (Dkt. No. 321 at 18.) Defendants maintain that, because this Court ruled that the failure to conduct fоrensic testing did not amount to a constitutional violation, (see Dkt. No. 302 at 20), there are no remaining claims to which such failure is relevant. (Dkt. No. 321 at 18.) Defendants also argue that failing to investigate a matter fully is mere negligence and does not establish Defendants’ knowledge or recklessness. (Id.) Refuting Defendants’ Motion, Plaintiffs aver that testimony about failing to conduct forensic testing concerns Defendants’ state of mind, which is relevant to proving the mens rea element of Plaintiffs’ substantive due process claims. (Dkt. No. 334 at 30.) Plaintiffs also contend that Defendants’ inaction is relevant to proving that officers fabricated and suppressed evidence. (Id. at 31.) The Court denies Defendants’ Motion.
Though this Court did rule that a failure to cоnduct forensic testing was not a constitutional violation, (Dkt. No. 302 at 20), evidence of that failure may be relevant to Plaintiffs’ remaining claims. For instance, as Plaintiffs argue, evidence of the failure to conduct forensic testing may be relevant to proving that Defendants “knowingly fabricated evidence”—an element of Plaintiffs’ substantive due process claims—and that “the prosecution suppressed evidence”—an element of Plaintiffs’ Brady claim. (Id. at 19, 21.) Because Defendants have not shown that the evidence is clearly inadmissible on all potential grounds, this Court denies their Motion No. 6.
Defendants’ Motion No. 8 Regarding the Investigatory Steps Not Taken Defendants move this Court to exclude any evidence of steps not taken during the investigation of the 1994 shooting. (Dkt. No. 321 at 19.) They identify two such steps: (1) not interviewing particular people and (2) not conducting a photo lineup that included Michael Wilson. (Id.) According to Defendants, evidence of the investigatory steps not taken is not relevant to any remaining claims, would mislead the jury, would result in unfair prejudice that exceeds its probative value, and is not enough to show that Defendants acted knowingly. (Id. at 19-20.) Plaintiffs assert that evidence of the investigatory steps not taken speaks to Defendants’ state of mind. (Dkt. No. 334 at 32.) As Plaintiffs put it, Defendants’ failure to take certain steps may show a deviation from acceptable police practices, which is relеvant to whether Defendants knowingly and deliberately framed Plaintiffs. (Dkt. Nos. 319 at 9, 334 at 32.)
This Court denies Defendants’ Motion because evidence of the investigatory steps not taken may be relevant to one or more of the claims proceeding to trial. For instance, to prevail on their substantive due process claims, Plaintiffs must prove that “the defendant knowingly fabricated evidence.” (Dkt. 302 at 21.) And evidence of steps not taken during the investigation may help the jury resolve two outstanding questions of fact: (1) whether Defendant Solomon knowingly put inaccurate information in the police report and (2) whether Defendant Meek knowingly fabricated evidence by coercing Price and Williams to identify Plaintiffs as the shooters. (Id. at 22.) Such evidence may also be relevant to Plaintiffs’ remaining Monell claim based on the single-incident failure-to-train theory of municipal liability. This Court previously identified “a genuine issue of material fact as to whether [Tulsa Police Department (“TPD”)] officers were trained in adequate interview and interrogation practices and the obligations outlined in Brady .” (Id. at 18.) And evidence of neglect—or, worse yet, intentional omissions—during the investigation may help the jury resolve this issue.
Given that the evidence Defendants seek to exclude is not clearly inadmissible on all potential grounds, the Court denies Defendants’ Motion No. 8.
Defendants’ Motion No. 11 Regarding the Investigation and Prosecution of Corey Atchison or Other Lawsuits Against the City of Tulsa Defendants ask this Court to exclude any evidence of the investigation and prosecution of Corey Atchison (“Atchison”), who brought allegations like those here against Defendant Meek and others. (Dkt. No. 321 at 21-22.) They also ask this Court to bar evidence of other lawsuits previously filed against Defendant Tulsa. (Id. at 21.) Plaintiffs state that they do not intend to reference other lawsuits, but they argue that they may introduce evidence of Atchison’s claims for the purposes enumerated in Rule 404(b)(2), such as for proving absence of mistake. (Dkt. No. 334 at 33-34.) Instead of wholesale exclusion, Plaintiffs maintain that a limiting instruction would more appropriately guard against unfair prejudice or confusion of issues. (Id. at 35.)
The Court finds that Defendants’ Motion is premature and therefore denies it without prejudice. Should Plaintiffs seek to offer evidence at trial of other lawsuits filed against Defendant Tulsa, Defendants may raise timely and specific objections for this Court’s consideration.
Defendants’ Motion No. 13 Regarding Prior Allegations Against Defendants’ Expert John Ryan
Defendants move the Court to bar Plaintiffs from cross-examining Defendants’ expert John Ryan (“Ryan”) about allegations and investigations related to cheating on promotional exams at the Providence Police Department. (Dkt. No. 321 at 24.) Defendants so move because they claim that Rule 608(b) precludes evidence of prior acts that are remote in time, and these allegations are from over fifteen years ago. (Id. at 25.) And Defendants aver that such allegations are not relevant to any issue in the case and their prejudicial effect outweighs their probative value. (Id.)
Plaintiffs dispute Defendants’ Motion for several reasons. First, Plaintiffs contend that Defendants mischaracterize Ryan’s involvement in what was a “cheating scandal,” which the FBI investigated, uncovering bribery, conspiracy, and extortion. (Dkt. No. 334 at 37.) Plaintiffs next argue that this incident is relevant and admissible because Rule 608(b) permits cross-examination when prior acts that did not result in a conviction are probative of untruthful conduct. (Id. at 39- 40.) Plaintiffs then assert that the prior acts are relevant to assessing Ryan’s credibility and exposing his financial bias. (Id. at 40-41.) And Plaintiffs finally press the argument that the Motion is premature and that evidence of the scandal “cannot possibly show unfair prejudice” because Plaintiffs retained Ryan as an expert witness. (Id. at 42-43.) This Court denies Defendants’ Motion.
Under Rule 608(b):
[E]xtrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of . . . the witness.
Entrata, Inc. v. Yardi Sys., Inc.
, No. 15-102,
The allegations against Ryan concern an incident involving bribery and cheating—acts
which are probative of Ryan’s character for truthfulness and are thus admissible under Rule 608(b).
See id.
And this Court rejects Defendants’ contention that the evidence is not relevant because
“once a witness takes the stand, his credibility is at issue.”
Augé v. Stryker Corp.
, No. 14-1089,
2021 WL 3290693, at *2 (D.N.M. Aug. 2, 2021) (citation modified). Given that evidence of
Ryan’s alleged involvement in the incident is probative of Ryan’s character for truthfulness, and
because the jury will need to assess Ryan’s credibility, such evidence is relevant under Rule 401’s
liberal definition of relevance.
See Augé
,
Nor does this Court find the allegations against Ryan to be so remote in time to warrant
exclusion. Evidence that is “so ‘remote in time’” may be excluded under Rule 608(b) and
“remoteness in time affects the probative nature of the evidence” under Rule 403.
Id.
(citation
modified) (quoting
United States v. Beltran-Garcia
,
Lastly, the Court declines to exclude the evidence under Rule 403 because that determination is premature. This Court nonetheless cautions Plaintiffs to avoid excessive focus on Ryan’s involvement in the scandal. It is probative of Ryan’s truthfulness, to be sure; but exorbitant questioning of Ryan’s involvement in the fifteen-year-old scandal may become unduly prejudicial, warranting exclusion under Rule 403.
So, at this stage, this Court denies without prejudice Defendants’ Motion in Limine No. 13. Defendants may raise timely objections to Plaintiffs’ cross-examination at trial.
IV. CONCLUSION
Based on the foregoing, this Court GRANTS IN PART AND DENIES IN PART Plaintiffs’ Motions (Dkt. No. 322) as follows:
1. Plaintiffs’ Motion in Limine No. 1 Regarding Evidence that Plaintiffs Were Declared Actually Innocent is denied ;
2. Plaintiffs’ Motion in Limine No. 2 Regarding Excessive and Personal References to Gangs is denied without prejudice ;
3. Plaintiffs’ Motion in Limine No. 3 Regarding Prior Bad Acts, Prior Convictions, and Chаracter Evidence is denied without prejudice ;
4. Plaintiffs’ Motion in Limine No. 4 Regarding References to Dismissed Defendants and Claims is denied without prejudice ;
5. Plaintiffs’ Motion in Limine No. 5 Regarding Witnesses Commenting on the Credibility of Other Witnesses is denied without prejudice ;
6. Plaintiffs’ Motion No. 6 Regarding References to Collateral Source Payments is granted ;
7. Plaintiffs’ Motion No. 7 Regarding Evidence of Defendants’ Commendations and Other References to Good Character is granted in part and denied in part ; 8. Plaintiffs’ Motion No. 8 Regarding References to Plaintiffs’ Decision Not to Testify at their Criminal Trial is granted ; and
9. Plaintiffs’ Motion in Limine No. 9 Regarding Arguments Appealing to Jurors’ Pecuniary Interests as Taxpayers is granted .
FURTHER this Court GRANTS IN PART AND DENIES IN PART Defendants’ Motions (Dkt. No. 321) as follows:
Defendants’ Motion in Limine No. 1 Regarding Affidavits of Ken Price, Rashun Williams, and Darrell Benson is denied without prejudice ;
Defendants’ Motion in Limine No. 2 Regarding Plaintiffs’ Actual Innocence or Claim of “Innocence” is denied without prejudice ;
Defendants’ Motion in Limine No. 3 Regarding any Mention of this Investigation Other than the Interviews of Ken Price and Rashun Williams is denied ; Defendants’ Motion in Limine No. 4 Regarding the Investigation and Prosecution of Michael Wilson is denied ;
Defendants’ Motion in Limine No. 5 Regarding the Statements of Alonzo Johnson is denied ;
Defendants’ Motion No. 6 Regarding the Failure to Conduct Forensic Testing is denied ;
Defendants’ Motion No. 7 Regarding the Interrogation of Plaintiffs is denied ; Defendants’ Motion in Limine No. 8 Regarding the Investigatory Steps Not Taken is denied ;
Defendants’ Motion in Limine No. 9 Regarding the Wrongful Actions by Unnamed or Unidentified Police Officers is denied ;
Defendants’ Motion No. 10 Regarding the Investigation and Prosecution of De’Marchoe Carpenter for the Shooting of Sheldon Reed is granted ; 11. Defendants’ Motion in Limine No. 11 Regarding the Investigation and Prosecution of Corey Atchison or Other Lawsuits Against the City of Tulsa is denied without prejudice ; 12. Defendants’ Motion No. 12 Regarding any Assertion that Minors were Interviewed in Violation of a State Statute is granted ;
13. Defendants’ Motion No. 13 Regarding Prior Allegations Against Defendants’ Expert John Ryan is denied without prejudice ; and
14. Defendants’ Motion No. 14 Regarding Evidence of Media Coverage Relating to Plaintiffs is granted .
IT IS SO ORDERED.
Given that this Court has resolved all pre-trial matters, this Court will issue a separate order with instructions for the parties.
DATED: August 29, 2025
s/ Gustavo A. Gelpí GUSTAVO A. GELPÍ
United States Circuit Judge, Sitting by Designation
Notes
[1] The Honorable Gustavo A. Gelpí, Circuit Judge, United States Court of Appeals for the First Circuit, sitting by designation.
[2] Now this Court incorporates by reference the background facts set forth in that Opinion and Order.
[3] The District Court of Tulsa County granted Plaintiffs’ Applications for Post-Conviction Relief on May 13, 2016, and concluded that “the Petitioners are actually innocent of the murder of Karen Summers and the other attendant offenses for which they were convicted.” Carpenter v. Oklahoma , No. CF-1994-4356, at *1033297470 (Okla. Dist. May 13, 2016) (Okla. State Courts Network) (order granting post-conviction relief). The State of Oklahоma appealed, and the Court of Criminal Appeals denied the State’s appeal, and affirmed the District Court of Tulsa County’s order granting post-conviction relief. Carpenter v. Oklahoma , No. PC-2016-498, at *1034513329 (Okla. Crim. App. Nov. 10, 2016) (Okla. State Courts Network) (mandate denying the State’s appeal and affirming the order granting post-conviction relief).
[4] Absent a stipulation or jointly proposed limiting instruction, Plaintiffs can request at trial that this Court give a limiting instruction.
[5] In their reply brief, Plaintiffs argue—for the first time—for the exclusion of a specific Tulsa County Sheriff Intelligence Report. (Dkt. No. 342 at 3.) The report mentions that Williams told “law enforcement that Plaintiff Carpenter [had] participated in a gang-related shoot-out a week prior to the [Summers] homicide.” (Id.) Defendants say that the report constitutes inadmissible hearsay, inadmissible character evidence, irrelevant evidence, and unduly prejudicial evidence. (Id. at 3-4.) But this argument is doubly flawed. First, this Court does not consider arguments raised for the first time in a reply brief when the argument could have been raised in the opening brief. See Rural Water Dist. No. 5 Wagoner Cnty. v. City of Coweta ,949 F. Supp. 2d 1091 , 1099 (N.D. Okla. 2013). Second, the report could be offered for admissible non-hearsay purposes, see infra at 12-13 (discussing permissible uses of statements that would otherwise be hearsay), or admissible purposes under Rule 404(b), see infra at 8. And, as this Court has repeatedly explained, evaluating probative value and prejudicial effect is a calculation better left for trial.
[6] Defendants’ Motion in Limine No. 10 seeks to exclude evidence of the investigation and prosecution of Defendant Carpenter for the shooting of Sheldon Reed in 2019. (Dkt. No. 321 at 21.) Defendants’ Motion in Limine No. 12 requests exclusion of any assertions that minors were interviewed in violation of an Oklahoma state statute. (Id. at 22.) And Defendants’ Motion in Limine No. 14 asks this Court to bar any evidence of media coverage relating to Plaintiffs’ arrest, prosecution, conviction relief efforts, and vacated convictions. (Id. at 26.) Plaintiffs have not contested Defendants’ Motions in Limine Nos. 10, 12, and 14. (Dkt. No. 334 at 33, 35, 44.)
[7] Defendants’ Motion in Limine No. 3 urges this Court to bar any evidence of the investigation into the 1994 shooting besides the interviews of Price and Williams. (Dkt. No. 321 at 15.) In Defendants’ Motion in Limine No. 4, they move to exclude any evidence of the investigation of Michaеl Wilson. (Id. at 16.) In Defendants’ Motion No. 5, they press for excluding any evidence of statements made by Alonzo Johnson. (Id. at 17.) Defendants’ Motion No. 7 implores this Court to preclude any evidence of the interrogation of Plaintiffs during the investigation into Summers’ homicide. (Id. at 19.) And Defendants’ Motion No. 9 entreats this Court to exclude evidence of any allegedly wrongful actions by a Tulsa Police Department officer besides Defendants. (Id. 20.)
[8] To be sure, Defendants do make some attempt in their reply brief to sharpen their arguments.
But allowing them to make skeletal arguments in the opening brief and then to put meat on the
arguments’ bones in reply “would be manifestly unfair to [Plaintiffs,] who” would be deprived of
any meaningful opportunity to submit а written response.
See Rural Water Dist. No. 5 Wagoner
Cnty.
, 949 F. Supp. 2d at 1099 (quotation marks omitted) (quoting
Headrick v. Rockwell Int’l
Corp.
,
[9] In a criminal case, a party must also prove that the statement was “supported by corroborating
circumstances that clearly indicate its trustworthiness.”
Salas-Aguayo
,
[10] Relevant evidence is “that which has ‘any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be
without the evidence.’”
United States v. Parson
, 84 F.4th 930, 938 (10th Cir. 2023) (quoting
Daubert v. Merrell Dow Pharms., Inc.
,