United States District Court, District of Columbia
A. HOWELL Chief Judge.
plaintiff, Matthew Corrigan, brought this lawsuit, pursuant
to 42 U.S.C. § 1983, against the District of Columbia
and over twenty named and unnamed officers of the
Metropolitan Police Department (“MPD”), seeking
damages for violation of his Fourth Amendment rights arising
from a warrantless search of his home on February 3, 2010.
See generally Compl., ECF No. 1; First Am. Compl.
(“FAC”), ECF No. 11. During the ensuing
litigation, twenty-two of the individual defendants were
dismissed voluntarily by the plaintiff or their motions to
dismiss or motions for summary judgment were
granted. This Court then granted the motions for
summary judgment by the four remaining defendants, the
District of Columbia, Lieutenant Robert Glover, Sergeant
Kevin Pope, and Officer Mark Leone, ruling that no violation
of a clearly established right had occurred and that the
officers were entitled to qualified immunity. See
Corrigan v. District of Columbia, Civil No. 12-173
(BAH), 2015 WL 5031364 (D.D.C. Aug. 25, 2015). This ruling
was subsequently affirmed in part and reversed in part by the
D.C. Circuit. See Corrigan v. District of Columbia,
841 F.3d 1022 (D.C. Cir. 2016).
before this Court the parties, in examining the totality of
the circumstances, see Grady v. North Carolina, 135
S.Ct. 1368, 1371 (2015) (noting “reasonableness of a
search depends on the totality of the circumstances,
including the nature and purpose of the search and the extent
to which the search intrudes upon reasonable privacy
expectations”), treated the challenged MPD search as a
single, continuous incident, the D.C. Circuit delineated two
distinct searches based on the different purpose and scope of
the searches conducted of the plaintiff's basement
apartment by two separate MPD units, see Pl.'s
Statement of Material Facts (“Pl.'s SMF”),
Ex. 2, Dep. of Lt. Robert Glover (“Glover Dep.”)
at 38:13, ECF No. 87-1 (describing the plaintiff's home
as an “English basement apartment”).
Specifically, the D.C. Circuit concluded that while the MPD
officers involved in the first search, conducted by the
MPD's Emergency Response Team (“ERT”), were
entitled to qualified immunity, Corrigan, 841 F.3d
at 1035 (“For the brief and limited warrantless ERT
‘sweep' of Corrigan's home, the officers had a
sufficiently reasonable basis for believing there was
probable cause to look for a potentially injured and
incapacitated person as to entitle them to qualified
immunity.”), the MPD officers involved in the second
search, conducted by the MPD's Explosive Ordinance
Disposal unit (“EOD”), were not, id.
(“We therefore hold that the EOD search violated
Corrigan's rights under the Fourth Amendment.”);
id. at 1025 (“because no reasonable officer
could have concluded such a basis [an exigency] existed for
the second more intrusive search, the officers were not
entitled to qualified immunity across the board”);
id. at 1033 (“the extensive EOD search far
exceeded the bounds of reasonableness”).
plaintiff points out, the defendants “did not appeal
this ruling.” Pl.'s Reply Mem. Supp. Mot. Part.
Summ. J. and Mot. in Limine (“Pl.'s Reply”),
at 4, ECF No. 147. The D.C. Circuit remanded the
plaintiff's claim of municipal liability against the
District of Columbia, which is now moot in light of the
plaintiff's voluntary dismissal of the municipality,
see Pl.'s Opp'n Defs.' Supp. Mot. Summ.
J. (“Pl.'s Opp'n”), at 1, ECF No. 134,
and the issue of whether Ofc. Mark Leone is entitled to
qualified immunity “because [he] reasonably relied on
the directive of [his] superior, ” in conducting the
EOD search, Corrigan, 841 F.3d at
trial in this matter is scheduled to begin on the date the
parties jointly suggested, on July 10, 2017. See
Consent Motion for New Trial Date (May 20, 2017), ECF No.
143; Minute Order (May 22, 2017) (granting motion and
scheduling trial for July 10, 2017). Pending before the Court
are (1) Ofc. Leone's supplemental motion for summary
judgment, Def.'s Supp. Mot. Summ. J. (“Def.'s
Supp. MSJ”), ECF No. 131; (2) the plaintiff's
motion in limine or for partial summary judgment,
Pl.'s Mot. In Limine or Partial Summ. J.
(“Pl.'s Mot.”), ECF No. 138; and (3) the
defendants' motions in limine, see Defs.'
Mot. In Limine, ECF No. 104; Defs.' Mot. In Limine, ECF
No. 105, which motions were originally denied as moot in
2015, see Order, ECF No. 125, but, on remand, have
been reinstated, at the defendants' request, Defs.'
Notice of Filing Re: Mots. In Limine, at 1, ECF No. 137.
background of this case has been fully summarized in prior
decisions in this case, see generally Corrigan v.
District of Columbia, 841 F.3d at 1025-28; Corrigan
v. District of Columbia, 2015 WL 5031364, at *1-4, and,
thus, only those facts necessary for resolving the instant
motions are provided below.
February 2, 2010, during a telephone call to the National
Suicide Hotline, the plaintiff informed the hotline operator
that he was a military veteran and owned firearms. FAC
¶¶ 9. “After a short conversation, [the
plaintiff] hung up, turned off [his] phone, took prescribed
sleeping medication, and went to bed.” Id. The
hotline operator then called 911, Defs.' Suppl. Statement
of Material Facts as to which there is no Genuine Dispute in
Further Supp. of Defs.' Mot. Summ. J. (“Defs.'
Suppl. SMF”) ¶ 1, ECF No. 119-1, and MPD officers
were dispatched to the plaintiff's home based on a
“report of an ‘Attempted Suicide, '”
Def. District of Columbia's Mot. Summ. J., Ex. 5
(“Barricade Report from 2408 N. Capitol St. N.W. (5D)
on Wednesday, February 3, 2010 (ERT # 10-11), Feb. 9, 2010
(“Incident Rep.”)) at 1, ECF No. 76-4. After an
odor of natural gas was detected, a barricade situation was
declared and members of the MPD's ERT, part of the
MPD's “Special Operations Division”
(“SOD”), were dispatched to the scene.
Id. at 1-2.
2:30 A.M., approximately three-and-a-half hours after MPD
officers first arrived on the scene, defendant Lt. Robert
Glover arrived. Incident Rep. at 2; Defs.' Suppl. SMF
¶ 3. At approximately 4:00 A.M., the plaintiff awoke
after hearing his name being called on a bullhorn and around
4:50 A.M. the plaintiff peacefully exited the apartment and
was taken into police custody. FAC ¶¶ 10-11. The
plaintiff did not give the MPD consent to enter his
apartment, but Lt. Glover nonetheless ordered the ERT to
immediately break into the apartment and conduct a
“sweep” of the apartment to determine whether any
other individuals remained in the apartment. Def.
Glover's Statement of Material Facts as to which there is
no Genuine Dispute (“Glover SMF”) ¶ 27, ECF
No. 79; see also Pl.'s Response to
Defendants' Statement of Material Facts ¶ 38, ECF
No. 86-1. After no other individuals were found in the
apartment, Lt. Glover ordered the EOD to enter and search the
plaintiff's apartment for explosives or other hazardous
materials. Glover SMF ¶ 32; see also Glover
Dep. at 10:1-22 (“I directed the members of the [ERT]
Entry Team to enter and search for any human threats that
remained or victims. And I also directed members of the [EOD]
to enter and check for any hazardous materials that could
remain on the scene and be dangerous to the public or anybody
else in that block or area.”).
Mark Leone conducted the EOD search. Pl.'s SMF, Ex. 5,
Deposition of Officer Mark Leone (“Leone Dep.”),
at 19:7, ECF No. 87-1. Ofc. Leone was informed of a
“barricade situation in reference somebody [sic] had a
military background and that they were requesting that we
cleared [sic] the apartment for any hazardous
materials.” Id. at 18:13-17. Before he
conducted the search, Ofc. Leone had been told that ERT had
already been in the apartment and that they had searched to
“make sure there that there wasn't any other people
in the apartment.” Id. at 20:9-12. Thus, Ofc.
Leone knew when he entered the apartment that no other people
were inside. Id. at 20:13-15. Ofc. Leone
“didn't know one way or another” if there was
probable cause to believe that there were hazardous materials
in the apartment. Id. at 21:21-22; see also
Id. at 101:11-15; 109:11-13. Nonetheless, Ofc. Leone
then “performed a search on the apartment to clear for
any booby traps or explosive devices, [or] hazardous
materials.” Id. at 19:1-4. This search was
performed despite the fact that he had not been told that any
MPD officer had seen explosives or that anyone heard that
explosives were in the apartment. Id. at 22:2-7;
see also Id. at 101:16-21. Instead, he was merely
advised that “due to the [plaintiff's] military
background [MPD] believed that the [sic] possibility of
explosives could be in the apartment.” Id. at
91:18-22. During Ofc. Leone's search, he “cut open
every zipped bag, dumped onto the floor the contents of every
box and drawer, broke into locked boxes under the bed and in
the closet, emptied shelves into piles in each room, and
broke into locked boxes containing Corrigan's three
firearms, ” Corrigan, 841 F.3d at 1028 (citing
Pl.'s Answers to Interrogs., ¶ 8; FAC ¶ 22),
resulting in the seizure from “[i]nside the locked
boxes, . . . an assault rifle, two handguns, a military smoke
grenade, a military "whistler" device, fireworks,
and ammunition, ” id.
Rule of Civil Procedure 56 provides that summary judgment
shall be granted “if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). The moving party bears the burden of demonstrating the
“absence of a genuine issue of material fact” in
dispute, Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986), while the nonmoving party must present specific facts
supported by materials in the record that would be admissible
at trial and that could enable a reasonable jury to find in
its favor, see Anderson v. Liberty Lobby, Inc.
(“Liberty Lobby”), 477 U.S. 242, 256
(1986); Allen v. Johnson, 795 F.3d 34, 38 (D.C. Cir.
2015) (noting that, on summary judgment, the appropriate
inquiry is “whether, on the evidence so viewed, a
reasonable jury could return a verdict for the nonmoving
party” (internal quotation marks omitted)); see
also Fed. R. Civ. P. 56(c), (e)(2)-(3). In making this
evaluation, “courts may not resolve genuine disputes of
fact in favor of the party seeking summary judgment, ”
Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (per
curiam), and “[t]he evidence of the nonmovant is to be
believed, and all justifiable inferences are to be drawn in
his favor, ” id. at 1863 (quoting Liberty
Lobby, 477 U.S. at 255 (alteration in original)).
Motions In Limine
Supreme Court has recognized that “[a]lthough the
Federal Rules of Evidence do not explicitly authorize in
limine rulings, the practice has developed pursuant to
the district court's inherent authority to manage the
course of trials.” Luce v. United States, 469
U.S. 38, 41 n.4, (1984); see id. at 40 n.2 (defining
motion in limine “in a broad sense to refer to
any motion, whether made before or during trial, to exclude
anticipated prejudicial evidence before the evidence is
actually offered”). Indeed, Rule 103(d) of the Federal
Rules of Evidence mandates that the court must conduct a jury
trial to the extent practicable so that inadmissible evidence
is not suggested to the jury by any means. Fed.R.Evid.
103(d). Pretrial motions in limine are an important
mechanism to effectuate this goal of insulating the jury from
inadmissible evidence and further the purpose of the rules,
generally, to administer the proceedings “fairly . . .
to the end of ascertaining the truth and securing a just
determination.” Fed.R.Evid. 102; see Banks v.
Vilsack, 958 F.Supp.2d 78, 82 (D.D.C. 2013) (citing
Fed.R.Evid. 103(d)). Moreover, “[a] pretrial ruling, if
possible, may generally be the better practice, for it
permits counsel to make the necessary strategic
determinations.” United States v. Jackson, 627
F.2d 1198, 1209 (D.C. Cir. 1980).
evaluating the admissibility of proffered evidence on a
pretrial motion in limine the court must assess
whether the evidence is relevant and, if so, whether it is
admissible, pursuant to Federal Rules of Evidence 401, 402
and 403. “[T]he burden is on the introducing party to
establish relevancy, ” Dowling v. United
States, 493 U.S. 342, 351 n. 3 (1990), as well as
admissibility. Even relevant evidence may be deemed
inadmissible and subject to exclusion on multiple grounds,
including that “its probative value is substantially
outweighed by a danger of one or more of the following:
unfair prejudice, confusing the issues, misleading the jury,
undue delay, wasting time, or needlessly presenting
cumulative evidence.” Fed.R.Evid. 403. “Assessing
the probative value of [the proffered evidence], and weighing
any factors counseling against admissibility is a matter
first for the district court's sound judgment under Rules
401 and 403.” Sprint/United Mgmt. Co. v.
Mendelsohn, 552 U.S. 379, 384 (2008) (alteration in
original) (quoting United States v. Abel, 469 U.S.
45, 54 (1984)).
upon the nature of the evidentiary issue presented in a
pretrial motion in limine, the court must also
assess whether a ruling is appropriate in advance of trial
or, instead, should be deferred until trial
“‘[when] decisions can be better informed by the
context, foundation, and relevance of the contested evidence
within the framework of the trial as a whole.'”
Herbert v. Architect of the Capitol, 920 F.Supp.2d
33, 38 (D.D.C. 2013) (alteration in original) (quoting
Casares v. Bernal, 790 F.Supp.2d 769, 775 (N.D. Ill.
2011)). The timing of a decision on the admissibility of
contested evidence is a matter within a trial judge's
discretion. Banks, 958 F.Supp.2d at 81-82 (citing
authorities); Barnes v. District of Columbia, 924
F.Supp.2d 74, 78-79 (D.D.C. 2013) (citing authorities).
Court first addresses Ofc. Leone's motion for summary
judgment on the explicit issue remanded by the D.C. Circuit:
whether he is entitled to qualified immunity for following
his superior's order to conduct the warrantless EOD
search. Def.'s Mem. Supp. Summ. J. (Def.'s
MSJ”) at 5-8, ECF No. 131. Then the plaintiff's
motion in limine and for partial summary judgment to
exclude evidence, argument, or reference by defendants that
the search of plaintiff's home was constitutional,
Pl.'s Mem. Supp. Pl.'s Mot. at 1-2, is addressed,
before turning finally to the defendants' motions in
limine seeking exclusion of argument or evidence
relating to the plaintiff's arrest, incarceration, and
prosecution in his underlying criminal proceedings.
Ofc. Leone's Supplemental Motion for Summary
Leone argues that he is entitled to qualified immunity
because he relied on an order from Lt. Robert Glover.
Def.'s MSJ at 5-6 (“Once Officer Leone arrived at
the scene, based on the directive given to him by Lt. Glover,
he joined other MPD officers already present in
Plaintiff's apartment.”). He posits that his
conduct must be measured not by the reasonableness, or lack
thereof, of the EOD search but by the reasonableness of him
following the order of his superior officer. Id. at
7 (framing “the relevant question [as] whether an
officer in this Defendants' position could have
reasonably relied on the judgment of Lt. Glover” and
urging that “[t]he facts here show such reasonable
reliance”). Citing the “paramilitary”
nature of the police department, Ofc. Leone argues he
“was not in a position to disregard Lt. Glover's
order which he believed to be lawful.” Id.
outset, the factual record is murky regarding how Lt.
Glover's order was communicated to Ofc. Leone. Although
Lt. Glover testified that he directed the EOD to enter the
apartment, Ofc. Leone, who actually conducted the EOD search,
could not recall “who exactly” the order
“came down from.” Leone Dep. at 102:22-103:1.
Instead, Ofc. Leone testified that he spoke with a colleague
on the EOD, Officer William Powell, who “had spoken
with higher ups” and “Officer Powell told [Leone]
that he or [Leone] were supposed to go in and conduct a
search.” Id. at 103:4-8. At oral argument
on this motion, plaintiff's counsel indicated that he
does not “have it in the record that [Leone] said
Glover told him to go in.” Motions Hearing (May 17,
2017). At the same time, in his supplemental responses to
plaintiff's first set of interrogatories, Ofc. Leone
stated that “[o]nce on the scene, I was advised by Lt.
Glover that they needed the residence cleared on an EOD
aspect due to the fact that the Plaintiff had a military
background.” Leone Mot. Summ. J., Ex 21, Leone Supp.
Resp. Pl's 1st Set Interrogs., at 3, ECF No. 81-21. Thus,
Ofc Leone has indicated both that he received the order from
Lt. Glover and that he received the order from Ofc. Powell,
who in turn received the order from unnamed superiors. In any
event, no dispute exists that Lt. Glover gave the order for
the EOD search and that Ofc. Leone executed that order, so
any issue about precisely how that order was communicated to
Ofc. Leone is immaterial and, therefore, does not require
resolution at trial of a predicate factual issue before
determination of whether qualified immunity applies.
D.C. Circuit has expressly held that “the EOD search
violated Corrigan's rights under the Fourth
Amendment.” Corrigan, 841 F.3d at 1035. Just
because a search is found to violate the Fourth Amendment
does not mean civil liability automatically attaches,
however. Instead, when an officer “engages in
constitutionally deficient conduct, ” qualified
immunity provides a liability shield “if, in doing so,
she did not violate ‘clearly established statutory or
constitutional rights of which a reasonable person would have
known.'” Brosseau v. Haugen, 543 U.S. 194,
205 (2004) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)). “Qualified immunity ‘gives
government officials breathing room to make reasonable but
mistaken judgments' and ‘protects all but the
plainly incompetent or those who knowingly violate the
law.'” Messerschmidt v. Millender, 565
U.S. 535, 546 (2012) (quoting Ashcroft v. al-Kidd,
131 S.Ct. 2074, 2085 (2011)). Consequently, whether qualified
immunity applies “‘generally turns on the
objective legal reasonableness of the [official's]
action, assessed in light of the legal rules that were
clearly established at the time.'” Id. at
546 (quoting Anderson v. Creighton, 483 U.S. 635,
639 (1987)). In other words, while an officer's
subjective state of mind is not relevant to the qualified
immunity inquiry, the officer's perceptions of the
objective facts animating the challenged conduct are. See
White v. Pauly, 137 S.Ct. 548, 550 (2017) (instructing
that in evaluating qualified immunity defense, “the
Court considers only the facts that were knowable to the
defendant officers”); Kingsley v. Hendrickson,
135 S.Ct. 2466, 2473 (2015) (noting that determination of
objective reasonableness must be made “from the
perspective of a reasonable officer on the scene, including
what the officer knew at the time, not with the 20/20 vision
of hindsight”) (internal quotations and citations
of these principles, Ofc. Leone's reliance on Lt.
Glover's order for EOD to search the plaintiff's
apartment is not dispositive of whether Ofc. Leone is
entitled to qualified immunity since the “objective
reasonableness” of his actions must be assessed based
on what was known to him at the time. Indeed, the D.C.
Circuit has emphasized that it “has never held that
qualified immunity permits an officer to escape liability for
his unconstitutional conduct simply by invoking the defense
that he was ‘just following orders.'”
Wesby v. District of Columbia, 765 F.3d 13, 29 (D.C.
Cir. 2014); see also Messerschmidt, 565 U.S. at
554-55 (2012) (approval of a warrant by a magistrate, along
with review by an officers' superior and deputy district
attorney, was “pertinent” but not
“dispositive” as to whether an officer could have
reasonably believed that a warrant was supported by probable
cause). Two D.C. Circuit decisions, Elkins v. District of
Columbia and Wesby v. District of Columbia,
instruct that an officer's ...