IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge William J. Martínez

Civil Action No. 11-cv-02394-WJM-CBS 

(Consolidated with Civil Action Nos. 11-cv-2395, 11-cv-2396 and 11-cv-2397)

ANA ALICIA ORTEGA,

KELLY BOREN,

KRISTAL CARILLO and

SHARELLE C. THOMAS,

Plaintiffs, 

v.

THE CITY AND COUNTY OF DENVER, a municipality,

OFFICER RICKY NIXON, in his individual and official capacity, and

OFFICER KEVIN DEVINE, in his individual and official capacity,

Defendants.

ORDER DENYING DEFENDANTS’ MOTION IN LIMINE WITHOUT PREJUDICE

 

This matter is before the Court on Defendants City and County of Denver, Ricky

Nixon, and Kevin Devine’s (collectively “Defendants”) Motion in Limine (“Motion”). (ECF

No. 86.) It seeks exclusion of the following categories of evidence: (1) unrelated

complaints, lawsuits, and settlements alleging excessive force; (2) recommendations of

non-decision makers; and (3) post-incident evidence. (Id.) For the reasons, set forth

below, the Court DENIES the Motion WITHOUT PREJUDICE.

When the Motion was filed, Defendants’ Motions for Summary Judgment were

still pending before the Court. The Court having now decided such motions, some of

the arguments raised in the Motion in Limine are now moot. For example, Defendants

argue that Plaintiffs “present no viable theory that taking Nixon off the street could have

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prevented the subject incident.” (ECF No. 86 at 7.) However, the Court has since

found that a trial-worthy issue as to whether Denver’s failure to investigate and

discipline Nixon for Alexander Landau's excessive force complaint caused the harm

alleged by Plaintiffs in this case. (ECF No 105 at 11.) 

More significantly, the Court has not yet ruled on Defendant City and County of

Denver’s Motion to Separate Trials. (ECF No. 77.) The Court’s analysis with respect to

a number of the issues raised in the Motion in Limine will depend on whether the Court

grants a severance of the trials in this case. For example, the relevance of evidence

that Denver Police Department permits a “Code of Silence” is heavily dependent on the

context of whether the City and County of Denver is a Defendant at trial. To the extent

such evidence is relevant against both the Individual Defendants and the City, the

balancing necessary for purposes of Federal Rule of Evidence 403 is certainly different

if this case proceeds as one trial than if it is separate trials. The majority of the issues

raised in the Motion are similarly affected by which parties are participating in the

anticipated trial. 

Given the considerations set forth above, the Court finds that it would be a waste

of judicial resources to issue a ruling on the current version of Defendants’ Motion in

Limine. Moreover, the Court finds that delaying a ruling on these evidentiary issues

until after the Court has determined whether this action will go to trial before one or two

juries will allow the parties to more fully identify and address the pertinent issues. 

Accordingly, the Court hereby ORDERS as follows: 

1. Defendants’ Motion in Limine (ECF No 86) is DENIED WITHOUT PREJUDICE; 

2. Defendants may refile their Motion in Limine at any time after the Court issues its

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 Of course, if the Court grants the Motion for Separate Trials, the parties may file 1

separate motions in limine addressed to the pertinent evidentiary issues for each trial. 

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ruling on Denver’s Motion to Separate Trials , so long as it is before the deadline 1

set forth in the Court’s Revised Practice Standards. 

Dated this 23 day of April, 2013. rd

BY THE COURT:

 

William J. Martínez 

United States District Judge

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