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Walker v. Donahoe, Et Al. Defendant's Motion in Limine To Exclude Portions of Video
Walker v. Donahoe, Et Al. Defendant's Motion in Limine To Exclude Portions of Video
Plaintiff,
Defendants.
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
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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
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,
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.
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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
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
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
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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.
By Counsel,
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Plaintiff,
Defendants.
CERTIFICATE OF SERVICE
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