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Case 3:18-cv-01523 Document 43 Filed 01/27/20 Page 1 of 5 PageID #: 334

IN THE UNITED STATES DISTRICT COURT


SOUTHERN DISTRICT OF WEST VIRGINIA
AT HUNTINGTON

MICHAEL WALKER, individually,

Plaintiff,

v. Civil Action No. 3:18-cv-01523


Honorable Robert C. Chambers
M.H. LOVEJOY, in his individual capacity;
B.E. DONAHOE, in his individual capacity;
B.W. PAULEY, in his individual capacity;
PUTMAN COUNTY COMMISSION, a
political subdivision of the State of West
Virginia,

Defendants.

DEFENDANTS’ MOTION IN LIMINE TO EXCLUDE PORTIONS OF THE VIDEO


RECORDING OF THE STOP OF THE PLAINTIFF

COME NOW the Defendants, Corporal Brian E. Donohoe and Deputy Brandon W. Pauley,

by counsel Charles R. Bailey, Adam K. Strider, and the law firm of Bailey & Wyant, PLLC, and

hereby move this Honorable Court in limine to exclude portions of the video recording of the stop of

the Plaintiff from the trial of this matter, pursuant to Rules 401 and 403 of the Federal Rules of

Evidence.

During the stop of the Plaintiff which forms the basis of this law suit, the Plaintiff video

recorded the interaction on his cell phone. This video has been submitted to the Court as Exhibit B

to the Plaintiff’s Motion for Summary Judgment. The beginning of the video depicts the stop, and

certain verbal exchanges between the parties in which Cpl. Donohoe’s request that the Plaintiff

produce his identification. This portion of the video is unobjectionable.

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Case 3:18-cv-01523 Document 43 Filed 01/27/20 Page 2 of 5 PageID #: 335

However, beginning at approximately 5:05, Cpl. Donohoe becomes exasperated with Mr.

Walker’s obstinate attitude and refusal to answer innocuous questions, and employs course language

to express his frustrations. Further, beginning at approximately 7:54, after Mr. Walker has been

permitted to leave, he turns the camera around to face himself and begins to lecture viewers on what

he believes the law to be. These portions of the video are of no value to any question for a jury to

decide, and yet have great potential to inflame or confuse the jury, and should thus be excluded.

Evidence is admissible only if it is relevant. See Fed. R. Evid. 402. Rule 401 of Federal

Rules of Evidence provides the following test for relevant evidence:

Evidence is relevant if:


(a) it has any tendency to make a fact more or less probable than it would be
without the evidence; and
(b) the fact is of consequence in determining the action.

Fed. R. Evid. 401. However, even relevant evidence is subject to further scrutiny. “The court may

exclude relevant evidence if 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.

Following this Court’s Memorandum Opinion and Order granting the Defendants’ Partial

Motion to Dismiss, the Plaintiff’s Complaint presents two (2) claims: a claim for Unreasonable

Search and Seizure in violation of the Fourth Amendment against Cpl. Donohoe, and a claim for

Bystander Liability against Dep. Pauley. See ECF Doc. No. 1 at ¶¶ 63-85. These claims allege that

Cpl. Donohoe initiated an investigatory detention of the Plaintiff to request his identification and

perform a criminal background check, and that Dep. Pauley did not intervene to prevent Cpl.

Donohoe from doing so.

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Case 3:18-cv-01523 Document 43 Filed 01/27/20 Page 3 of 5 PageID #: 336

Cpl. Donohoe’s use of coarse language does not in any way inform the question of whether

or not reasonable suspicion existed to stop of the Plaintiff, and there is no constitutional right to be

free from swear words. What’s more, the video demonstrates that the exchange in which Cpl.

Donohoe employs that language does not occur until after he has already stopped Mr. Walker,

obtained his identification, and ordered the background check, and therefore cannot have been a

contributing factor in gaining Mr. Walker’s compliance in the investigatory stop. There is no claim

in the Complaint for Intentional Infliction of Emotional Distress or Tort of Outrage. Essentially,

Cpl. Donohoe’s coarse language is an occurrence separate and apart from any conduct alleged by the

Plaintiff to have been unconstitutional; and constitutional violations are the entirety of his claims.

The portions of the video which depict Cpl. Donohoe employing such language are therefore wholly

irrelevant to the merits of the case.

However, irrelevant as it may be, Cpl. Donohoe’s language nonetheless has great potential to

inflame and prejudice the jury. While swearing by a police officer is not unconstitutional, most

jurors will still find this to be objectionable conduct, and their deliberations may be unduly

influenced by their offense at the language employed. Accordingly, even if it were marginally

relevant, the portions of the video which depict Cpl. Donohoe using coarse language would be

excludable as more prejudicial than probative under Rule 403.

Further, the portions of the video which depict Mr. Walker giving a lecture to an imagined

audience about the legality of the stop is wholly irrelevant. It is the place of the Court to instruct the

jury on the law, not that of the Plaintiff. However, Mr. Walker’s amateur legal scholarship may still

confuse the jury about the correct standard they should employ when determining whether

reasonable suspicion existed for the stop. For that reason, the portions of the video after 7:54 should

also be excluded under Rules 401 and 403.

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Case 3:18-cv-01523 Document 43 Filed 01/27/20 Page 4 of 5 PageID #: 337

WHEREFORE, for the reasons stated herein, the Defendants respectfully pray this

Honorable Court GRANT their motion in limine, excluding from the trial the portions of the video

depicting the stop after 5:05 into the video, and grant such other relief as the Court deems just and

proper.

BRIAN E. DONOHOE and BRANDON W.


PAULEY,

By Counsel,

/s/ Adam K. Strider ______________


Charles R. Bailey (WV Bar #0202)
Adam K. Strider (WV Bar #12483)
BAILEY & WYANT, PLLC
500 Virginia Street, East, Suite 600
Post Office Box 3710
Charleston, West Virginia 25337-3710
T: 304.345.4222
F: 304.343.3133
cbailey@baileywyant.com
astrider@baileywyant.com

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Case 3:18-cv-01523 Document 43 Filed 01/27/20 Page 5 of 5 PageID #: 338

IN THE UNITED STATES DISTRICT COURT


SOUTHERN DISTRICT OF WEST VIRGINIA
AT HUNTINGTON

MICHAEL WALKER, individually,

Plaintiff,

v. Civil Action No. 3:18-cv-01523


Honorable Robert C. Chambers
M.H. LOVEJOY, in his individual capacity;
B.E. DONAHOE, in his individual capacity;
B.W. PAULEY, in his individual capacity;
PUTMAN COUNTY COMMISSION, a
political subdivision of the State of West
Virginia,

Defendants.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of foregoing DEFENDANTS’


MOTION IN LIMINE TO EXCLUDE PORTIONS OF THE VIDEO RECORDING OF THE
STOP OF THE PLAINTIFF was served upon the following party through the Court s Electronic
Case Filing (ECF) system on this day, January 27, 2020:

John H. Bryan
Law Office of John H. Bryan
611 Main Street
PO Box 366
Union, WV 24983
Email Address: jhb@johnbryanlaw.com
Attorney For: Michael Walker

/s/ Adam K. Strider ______________


Charles R. Bailey (WV Bar #0202)
Adam K. Strider (WV Bar #12483)
BAILEY & WYANT, PLLC
500 Virginia Street, East, Suite 600
Post Office Box 3710
Charleston, West Virginia 25337-3710