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Marks v. Smith

United States District Court, E.D. Louisiana

March 19, 2017


         SECTION: “E” (2)



         Before the Court are two motions in limine filed by the Plaintiff.[1] The motions are opposed.[2] The Court rules on the motions as set forth below.


         This is a case brought under 42 U.S.C. § 1983. On or about October 23, 2014, upon leaving her employment, Plaintiff, Jennifer Marks, alleges she stopped at Acadia Gas Station in Slidell, Louisiana to purchase a pack of cigars.[3] After leaving the gas station, Deputy Bryan Steinert conducted a traffic stop of the Plaintiff.[4] Deputy Samuel Hyneman arrived on the scene while Deputy Steinert searched the Plaintiff's vehicle.[5] Deputy Steinert found drug paraphernalia in the vehicle. Corporal Amore Neck then arrived on the scene to conduct a search of the Plaintiff's person. It is at this point that the parties' accounts of the incident diverge.

         The Plaintiff alleges Corporal Neck conducted “an illegal and unconstitutional full body cavity search at the traffic stop which amount to a sexual assault.”[6] According to the Plaintiff, Corporal Neck “forced Ms. Marks to bend over while handcuffed, putting her hand down Ms. Marks' pants, and with her fingers, entering Ms. Marks' vagina and then separately, her rectum. Deputy Amore then checked Ms. Marks' feet and mouth without changing gloves.”[7]

         The Defendants' accounts, however, differ significantly from the Plaintiff's. Deputy Hyneman, who observed the search performed by Corporal Neck, provided testimony that the search was a “basic pat down” and Corporal Neck did not search the Plaintiff's body cavities.[8] Corporal Neck testified the search she conducted on the Plaintiff was a usual pat-down search, which did not include searching any of the Plaintiff's body cavities.[9]

         The Plaintiff filed this lawsuit, bringing claims against the St. Tammany Parish Sheriff's Office and Sheriff Randy Smith in his official capacity under 42 U.S.C. § 1983 and other state-law causes of action. The Plaintiff also brings claims against Corporal Amore Neck, Deputy Samuel Hyneman, and Deputy Bryan Steinert in their individual capacities under section 1983 for violations of her Eighth and Fourteenth Amendment rights.

         Defendant Corporal Amore Neck filed a counterclaim against Marks, alleging the allegation in Marks's complaint are completely false and rise to the level of defamation.


         I. Past Arrests and Criminal Record

         The Plaintiff filed a motion in limine to exclude evidence of her criminal arrests and convictions.[10] The Plaintiff seeks to exclude evidence relating to the following past arrests and convictions: (1) October 14, 2004 arrest and guilty plea to possession of cocaine, which was later expunged; (2) arrest for domestic violence in March of 2011; (3) October 2, 2009 arrest and conviction for driving while intoxicated; (4) 2009 arrest for drug possession; and (5) 2007 arrest for drug possession.[11]

         The Plaintiff argues evidence related to her prior arrests and convictions is inadmissible because (1) Federal Rule of Evidence 404(b) prohibits the introduction of evidence of other crimes, wrongs, or other acts for the purpose of showing the person's character; (2) the evidence is irrelevant under Rule 401; and (3) the evidence is more prejudicial than probative under Rule 403.[12]

         Defendants, in response, contend they do not seek to admit evidence and testimony of the Plaintiff's criminal history to attack her character. Instead, Defendants seek to use such evidence under Rule 404(b) to demonstrate bias against the St. Tammany Sheriff and motive to fabricate the alleged body cavity search.[13]

         The Court will examine whether the evidence is admissible under Rule 609 or Rule 404(b).

         Under Federal Rule of Evidence 609, evidence of a felony conviction may be admissible to attack a witness's character for truthfulness.[14] Rule 609(b) places limits on the use of such evidence if “more than 10 years have passed since the witness's conviction or release from confinement” for that conviction.[15] Only one of the Plaintiff's past criminal encounters- her October of 2009 conviction for driving while intoxicated-is admissible under Rule 609 for impeachment purposes, subject to its admissibility under Rule 403.[16]

         Rule 403 provides, in pertinent part, that the court “may exclude evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice.”[17] The Plaintiff's conviction for driving while intoxicated occurred nearly eight years ago, and did not involve the officers named in this lawsuit. Moreover, the Court notes that the Plaintiff's conviction for driving while intoxicated is not one that involves dishonesty or the making of false statements and does not raise questions with respect to her propensity to tell the truth.

         The Court has broad discretion in determining “whether to allow or disallow use of a conviction based upon whether its probative value exceeds its prejudicial effect.”[18]For the reasons stated above, the Court finds that any probative value the Plaintiff's 2009 conviction for driving while intoxicated may have is substantially outweighed by the danger of unfair prejudice to her. The Defendants may not introduce evidence of the Plaintiff's October of 2009 conviction for driving while intoxicated under Rule 609.

         For the same reasons, the Court will not admit under Rule 404(b) the evidence of the Plaintiff's prior arrests and convictions. Under Rule 404(b), “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or ...

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