Case Information
*1 UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
ORDER LARRY THOMPSON, 14-CV-7349
Plaintiff, -against-
fl\fo~1ce Police Officer PA GIEL CLARK, Shield U.S. ci~s~~fiT COURT E.O.N.Y. * JAN 2 5 20\9 * #28742; Police Officer PAUL
MONTEFUSCO, Shield #10580; Police
Officer GERARD BOUWMANS, Shield BROOKLYN OFFICE #2102; Police Officer PHILLIP ROMANO, Shield #6295,
Defendants.
JACK B. WEINSTEIN, Senior District Judge:
The results of the hearing are as follows:
A. Plaintiff's Motions
1. As it stands now, the plaintiffs mugshot has not been properly authenticated. The
provenance of the photograph is in question. Defendants previously understood that it was destroyed pursuant to the sealing provisions ofN.Y. Crim. Proc. L. §160.50. ECF No. 86, Nov. 11, 2018. It was recently discovered in the possession of a third party vendor. These suspicious circumstances make it possible that the photo may have been tampered with, which can be done easily now with modern technology. Unless the defendants can trace its chain of custody and lay a proper foundation, it must be kept out.
2. Defendants are precluded from introducing evidence of plaintiffs criminal history.
Fed. R. Evid. 403; see also 3. Plaintiffs motion to preclude Sergeant Anthony Bertram from testifying regarding his
phone call with an attorney from the New York Police Department ("NYPD") legal *2 department is now moot. Defendants removed Sergeant Bertram from their witness list and proffered that they do not intend to introduce evidence of his call with the NYPD attorney.
4. Testimony was given at the hearing by Renate Lunn, plaintiffs former criminal
defense attorney, concerning the termination of plaintiffs underlying criminal charges. Parties shall provide supplemental briefs on the favorable termination issue based on the record, the law, and policy implications.
5. Request to preclude the April 9, 2014 criminal court transcript is denied. It is relevant to
the favorable termination issue. 6. Statement in Medical Treatment of Prisoner form that plaintiff was placed in "leg
shackles and rear cuffed" shall be redacted. See Fed. R. Evid. 403. 7. Statement in New York City Fire Department Pre-Hospital Care Report Summary
("FDNY Pre-Hospital Report") that the incident in question occurred "in jail" shall be redacted.
8. Request to redact statement of medical provider in FDNY Pre-Hospital Report that the
plaintiff had "no medical problems" is denied. This statement is admissible under the business record exception to hearsay. See Fed. R. Evid. 803(6). The court will hear, and carefully assess, any additional requests made at trial to redact medical records.
9. Evidence of plaintifrs alcohol use and treatment is precluded. R. Evid. 403. 10. Evidence designed to induce sympathy for the police, such as that the police officers
were busy at the time of the incident, is precluded.
11. Defendants are not required to tum over potential impeachment material.
B. Def end ants' Motions
1. Defendants' request to amend Exhibit J to include the entirety of Dr. Elliot Schuster's
medical records is granted. ECF No. 120, Jan. 15, 2019. 2. State law claims have not been pied and permission to amend is denied. The federal
claims to be tried are: (1) unlawful entry; (2) false arrest; (3) excessive force; (4) malicious prosecution; (5) denial of a right to a fair trial; and (6) failure to intervene. Amended Memorandum & Order, ECF No. 77, June 26, 2018.
3. Plaintiff is precluded from referring to defense counsel as the "City" or as "City
attorneys." See R. Evid. 402,403. 4. Plaintiff is precluded from mentioning that the defendants may be indemnified. Fed.
R. 5. Plaintiff may not request a specific dollar amount from the jury. But he may prove
specifics of the costs for medical treatment, loss of work, and other measurable losses. 6. Evidence of defendant officers' disciplinary histories and prior lawsuits is precluded. Evid. 403, 404(b). 7. Renate Lunn, plaintiffs criminal defense attorney, was permitted to provide testimony at
the hearing regarding her recollections of the dismissal of plaintiffs underlying criminal charges.
8. Dr. Eliot Schuster, plaintiffs treating physician, may testify as a lay witness. He may not
testify generally regarding causation; however, he may testify as to what the plaintiff told him regarding causation if it was related to his treatment of the plaintiff. Fed. R. Evid. 803(4).
9. Plaintiff is precluded from introducing evidence of Camille Watson's mental health, but a
witness may testify concerning his or her observations of Ms. Watson. The jury has been *4 instructed that Ms. Watson's mental well-bearing has no bearing on the ultimate issue at trial unless plaintiff can demonstrate that the police officers were aware of any mental deficiencies prior to plaintiffs arrest.
10. Evidence concerning the results of the child abuse investigation shall be precluded.
Fed. R. Evid. 402. The results of the child abuse investigation that followed defendants' entry into plaintiffs apartment are irrelevant. The relevant inquiry is what information defendant police officers had prior to plaintiffs arrest and their entry into his apartment.
11. The request to preclude evidence of plaintiffs post-traumatic stress disorder is moot.
Plaintiff proffers that he does not intend to raise this issue.
C. Stipulations
1. The parties agree to the authenticity of the photographs taken of the plaintiffs apartment. 2. The parties agree to the authenticity of the medical reports.
3. The parties agree that no warrant was issued to enter the plaintiffs apartment or to arrest
the plaintiff.
SO ORDERED. Isl Jack B. Weinstein Jack B. Weinstein Senior United States District Judge Dated: January 24, 2019
Brooklyn, New York