United States District Court, D. Maine
ARTHUR J. LONG, Plaintiff,
BRENT D. ABBOTT, Defendant.
ORDER ON MOTION IN LIMINE TO EXCLUDE BOOTH VIDEO
DEPOSITION TESTIMONY AND 911 AUDIO RECORDING
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.
Court is dubious about the admissibility of the contents of a
deposition of a person who called the police and of a
transcript of the recorded 911 of his call; however, the
Court reserves its final ruling until trial.
42 U.S.C. § 1983 action, Plaintiff Arthur Long asserts
that Defendant Officer Brent Abbott of the Portland Police
Department arrested him without probable cause, conducted an
illegal search, and used excessive force in effectuating the
arrest in violation of Mr. Long's constitutional rights.
Fourth (and last) Am. Compl. and Demand for Jury
Trial at 6 (ECF No. 28). In anticipation of trial,
Officer Abbott seeks to introduce the video testimony of
Robert Booth-the individual whose 911 call precipitated the
arrest-as well as the audio recording of the 911 call.
response, on May 17, 2017, Mr. Long filed a motion in limine
to exclude both the video deposition testimony and the 911
audio recording. Pl.'s Mot. in Limine to
Exclude Booth Video Deposition Testimony and 911 Audio
Recording (ECF No. 83) (Pl.'s Mot.).
Specifically, Mr. Long asserted that the testimony and audio
recording were irrelevant, constituted inadmissible hearsay,
and threatened to confuse the jurors because Officer Abbott
was not aware of the precise details of Mr. Booth's phone
call at the time he determined that probable cause existed to
arrest and search Mr. Long. Id. at 2.
Abbott filed an objection on May 19, 2017, arguing that Mr.
Booth's testimony and the 911 call provide relevant
background evidence and are relevant purposes of impeachment
Def.'s Obj. to Pl.'s Third Mot. in Limine to
Exclude Booth Testimony and 911 Call at 1 (ECF No. 85)
(Def.'s Obj.). Additionally, Officer Abbott
contends that the 911 call is admissible under several
hearsay exceptions. Id. at 6.
Court has serious doubts about the admissibility of Mr.
Booth's video testimony and the 911 call. However, the
Court reserves final ruling on the motion until trial.
Abbott arrested Mr. Long for failing to provide
identification outside 24 Preble Street in Portland, Maine,
on August 9, 2014. Officer Abbott argues that his arrest of
Mr. Long was legal because he had probable cause to believe
that Mr. Long was drinking in public and loitering. For
support, he seeks to introduce the video testimony of Mr.
Booth, who testified that prior to August 9, 2014, he
frequently observed loitering and drinking outside 24 Preble
Street. Video Dep. of Robert Booth 10:2-11:5 (ECF
No. 84) (Booth Dep.). He argues that this testimony
is relevant because it supports the reasonableness of Officer
Abbott's belief that there was likely a sign prohibiting
drinking in the area. Def.'s Obj. at 4.
Officer Abbott argues that Mr. Booth's testimony and the
911 call are relevant for impeachment purposes. Id.
at 5. Specifically, Officer Abbott argues that if Mr. Long
attempts to testify that he was not drinking on August 9,
2014, Mr. Booth's testimony and the content of the 911
call would undermine Mr. Long's credibility as a witness.
Id. Officer Abbott argues that this is especially so
given that only a few minutes passed between the time Mr.
Booth called 911 to report a group of males drinking in front
of the building and Officer Abbott's arrival on the scene
to find Mr. Long. Id.
Court preliminarily concludes that the probative value of Mr.
Booth's testimony and the 911 call-offered either as
background evidence or for impeachment purposes-will likely
be substantially outweighed by a danger of confusing the
jury. Fed.R.Evid. 403. The validity of the arrest in this
case turns on whether Officer Abbott had probable cause to
believe that Mr. Long was loitering or drinking in public.
Whether Officer Abbott had probable cause to believe that Mr.
Long was drinking in public depends in turn on whether it was
reasonable for Officer Abbott to believe that there was a
sign prohibiting drinking within 200 feet of 24 Preble
Street. Both inquiries require the jury to assess the
information available to Officer Abbott at the time he made
the arrest. According to the parties' filings, Officer
Abbott was only aware of a police dispatch that there were
four to five males drinking and loitering at 24 Preble
Street. Pl.'s Mot. at 1; Def.'s
Obj. at 3. Yet Mr. Booth's call to police includes
substantially more information than Officer Abbott received
from the dispatch. See Aug. 9, 2014 Telephone
Conversation Btw. Shannon and Robert Booth (ECF No.
86) (911 Call). In the 911 call, Mr. Booth reports
that there is a “group of guys” in front of 24
Preble Street drinking, that they are “both
white” and “wearing black t shirts, ” that
they have “a black back pack [that] looks like it's
full of Budweiser cans, ” and that they've got
three or four cans on the stoop. Id. at 1-2.
stage, the Court concludes that it is highly likely that the
jury might impute Mr. Booth's knowledge to Officer Abbott
and therefore find that, based on the knowledge available to
him, Officer Abbott had probable cause to believe that Mr.
Long was drinking. Furthermore, although Mr. Booth's
testimony and the 911 phone call may be relevant for
impeachment purposes, the strong potential for confusion
remains. Even with a limiting instruction from the Court, the
jury would be faced with a daunting test of mental
gymnastics: they could consider Mr. Booth's testimony as
evidence that Mr. Long was actually drinking in public, but
not as evidence that Officer Abbott had probable cause to
believe that Mr. Booth was drinking in public. The Court is
hesitant to introduce such confusion into the jury's
there are significant conflicts between Mr. Booth's
deposition testimony and his 911 call. In his 911 call, Mr.
Booth reported to police dispatch that “[t]here's a
group of guys down there right now who are drinking uh,
they've got like a backpack full of beer . . . and they
are drinking right now.” 911 Call at 1. Mr.
Booth then went on to say that this was “only part of
why I am calling” and he explained that “[p]eople
are there like all day every day and we have a lot of young
interns who come in and they will walk by there and I mean as
early as earlier this afternoon uh, there was a group of guys
there just openly uh ...