The opinion of the court was delivered by: Judge Graham
On April 11, 2006, Plaintiff William E. "Buster" Fisher filed a motion for judgment based upon the law of the case requesting that this Court enter judgment in his favor on his Fourth Amendment claim of arrest without probable cause under 42 U.S.C. § 1983, "consistent with the decision of the Sixth Circuit." (Pl.'s Mot. for J. 1.) Plaintiff alleged Defendants Molly Welch (formerly Molly Alexander)*fn1 and Stephen Alexander, both deputies in the Morrow County, Ohio, Sheriff's Office, violated his Fourth and Fourteenth Amendment rights in seizing him without probable cause and using excessive force on him during an encounter on July 10, 2000.*fn2
On May 9, 2002, Defendants filed a motion for summary judgment on Plaintiff's §1983 claim. Plaintiff filed a cross-motion for summary judgment in conjunction with his memorandum in opposition to Defendants' motion for summary judgment.
In ruling on the motions, this Court first found that Defendants were justified in investigating whether Plaintiff presented a risk of harm to himself or others, and accordingly Defendants' stop of Plaintiff was not prohibited by the Fourth Amendment under the reasonable suspicion standard promulgated by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1 (1968). This Court further determined that the circumstances of Defendants' investigation of Plaintiff were insufficient to convert the stop into an arrest. This Court also concluded that Defendants did not use excessive force during their encounter with Plaintiff. From these findings, this Court held that Defendants' actions did not violate Plaintiff's constitutional rights. Finally, this Court noted that even if Defendants' conduct did violate Plaintiff's constitutional rights, reasonable officers in Defendants' position would not have been on notice that their conduct was clearly unlawful in light of the law at that time.
Hence, this Court entered judgment in Defendants' favor on Plaintiff's §1983 claim, finding that Defendants were entitled to qualified immunity. This Court accordingly denied Plaintiff's cross-motion for summary judgment. Plaintiff appealed the Opinion and Order and Judgment in favor of Defendants, entered August 6, 2002.
On February 25, 2005, the Sixth Circuit Court of Appeals filed its decision, reversing this Court's grant of summary judgment in favor of Defendants Molly and Stephen Alexander and remanding this case for proceedings consistent with its opinion. Fisher v. Harden, 398 F.3d 837, 849 (2005).
II. Plaintiff's Pending Motions
On April 11, 2006, Plaintiff filed a motion for judgment based upon the law of the case. Plaintiff argues that the Sixth Circuit "decided the issues related to liability in this case." (Pl.'s Mot. for J. 1.) Specifically, Plaintiff maintains that the Sixth Circuit "held that this forceful seizure of Mr. Fisher was an arrest, requiring probable cause; and further held that on the uncontested facts of this case, the Defendants were unable to demonstrate that they had probable cause." (Pl.'s Mot. for J. 1.) Plaintiff argues that Defendants have had a full opportunity to develop their version of the facts, as Plaintiff does not remember the encounter and has therefore not given testimony regarding the encounter. (Pl.'s Mot. for J. 3-4.)
Plaintiff notes in his motion, "[i]t is perhaps an unusual circumstance that the Court of Appeals went beyond rulings on legal issues, and made a factual determination that this particular seizure did not pass legal muster. However, that is certainly what the Court decided[.]" (Pl.'s Mot. for J. 7.) As such, Plaintiff requests that this Court enter judgment against Defendants and in Plaintiff's favor on his constitutional tort claim arising under §1983, leaving only the issue of damages to be decided at trial. (Pl.'s Mot. for J. 11.)
Defendants assert that in deciding the appeal, "the Sixth Circuit was required to and expressly stated that the Court had to construe all facts in favor of the plaintiff[.]" (Defs.' Mem. Contra Pl.'s Mot. for J. 3-4.) Defendants further argue that the Sixth Circuit did not consider a recent Supreme Court decision, Devenpeck v. Alford, 543 U.S. 146 (2004), in its opinion. (Defs.' Mem. Contra 4-5.) Defendants maintain that the rule established by the Supreme Court in Devenpeck, namely that "the offense establishing probable cause for an arrest need not be closely related to or based upon the same conduct as the offense the officer initially identified at the time of the arrest," should apply to this case. (Defs.' Mem. Contra 5.) Defendants argue that they should, accordingly, be permitted to present evidence at trial that they had probable cause to arrest Plaintiff "for a crime based upon the conduct they observed . . . [namely] trespassing." (Defs.' Mem. Contra 5.) Because Devenpeck was not addressed during the appeal of this case, Defendants argue it should now be addressed on remand. (Defs.' Mem. Contra 5.)
Incident to the matters Plaintiff believes the Court of Appeals decided in its opinion, Plaintiff has filed seven motions in limine seeking to prohibit various testimony and arguments from Defendants, should the case proceed to trial.
Plaintiff's motions in limine branches one, two, and three seek to prohibit Defendants from arguing the following: 1) that the actions of Defendants toward Plaintiff were not an arrest; 2) that the alleged arrest did not require that Defendants have probable cause; and 3) that the facts of the case constituted probable cause to arrest Plaintiff. (Pl.'s Mots. in Limine Branch One, Two, and Three 1-2.)
Plaintiff's fourth motion in limine seeks to prohibit Defendants from calling Samuel D. Faulkner as an expert witness at trial, as Plaintiff believes Mr. Faulkner will opine that "the actions of the Defendants were not a 'use of force,' and that Mr. Fisher was ...