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Long v. Abbott

United States District Court, D. Maine

May 23, 2017

ARTHUR J. LONG, Plaintiff,
v.
BRENT D. ABBOTT, Defendant.

          ORDER ON MOTION IN LIMINE TO EXCLUDE BOOTH VIDEO DEPOSITION TESTIMONY AND 911 AUDIO RECORDING

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.

         The 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.

         I. INTRODUCTION

         In this 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.

         In 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.

         Officer 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.

         The 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.

         II. DISCUSSION

         A. Rule 403

         Officer 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.

         Furthermore, 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.

         The 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.

         At this 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 deliberations.

         Moreover, 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 ...


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