Free Motion in Limine - District Court of Delaware - Delaware

Case 1:04-cv-01254-Gl\/IS Document 134 Filed O9/13/2006 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
HARRY SMITH, .JR. and ROSLYN )
WOODARD SMITH, Individually and as )
Administrators of TI-IE ESTATE OF )
HARRY SMITH, III )
J
Plaintiffs, ) Case No 04~l254—Gl\/IS
)
v. )
)
CITY OF WILMINGTON, JOHN )
CEITELLA, THOMAS DEMPSEY, and )
MATHEW KURTEN, )
)
Defendants, )
I)EFENDANTS’ SECOND MOTION IN LIMINE
{EXCLUSION OF CERTAIN EVIDENCE RELATING TO THEIR AMMUNITIONQ
Defendants move to exclude any evidence or argument critical of the hollow point bullets
which they were issued.
A. BACKGROUND
Defendants anticipate plaintiffs will criticize their use of hollow point bullets (which
were the only bullets issued to them) because of an argument they made in connection with
defendants motion for summary judginentl In their opposition to defendants’ pending motion
for summary judgment, plaintiffs argued that "hollow point bullets long have been subject of
heated debate because ofthe lethal nature of these bullets. These bullets are designed to spread,
almost in a rnushrootn shape, upon impact and cause far greater damage than non—hollow point
bullets." (Pl, Br. 7~8; DI. ll6).
B. WHY CRITICISM OF HOLLOW POINT
BULLETS SHOULD BE PRECLUDED IN THIS TRIAL
Plaintiffs should not be permitted to criticize the use of hollow point bullets for any of
three reasons: first, there is no allegation in the Amended Complaint that the defendants
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Case 1:04-cv-01254-Gl\/IS Document 134 Filed O9/13/2006 Page 2 of 4
deprived plaintiffs of their federal or state law rights by using hollow point bullets; second there
is no evidence in the record questioning their use by police departments; third, the defendant
officers had no choice in the bullets issued to them.
I. There Is No Allegation In The Amended Complaint That The Use Of
Hollow Point Bullets Was Wrongful. _,_______________T_____________
The Amended Complaint is devoid of any allegation that the defendants deprived the
decedent or the plaintiffs of any constitutional or state law rights by using hollow point bullets.
And research revealed no case holding that the use of hollow point bullets constituted a
deprivation of a constitutional right.
2. There ls No Evidence In The Record Questioning The Use Of Hollow
Point Bullets. __
Plaintiffs supported their assertion in their summary _judgment brief by citation to only
two documents: one was a press release by a California congressman and the other was a portion
of a Wikipedia entry (A copy of the pertinent pages of plaintiffs’ appendix is attached as
Exhibit "A"). Neither, of course, is admissible. Moreover, far from supporting the notion that
the use of these bullets by police officers is the subject of debate, both of these sources
acknowledge that hollow point bullets are widely used by police departments around the country.
• The press release by the California congressman advocates banning the use of
hollow point bullets by border patrol, But that same press release acknowledges
that there are special justifications for the use of hollow point bullets by "many
police departrnents."
• Plaintiffs’ reference to the Wikipedia entry is even more perplexing. In the
appendix to their summary judgment brief the plaintiffs provided the court with
only a portion of that entry, The full version (Exhibit B) states that "hollow point
bullets are one of the most common types of civilian and police ammunition, due
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Case 1:04-cv-01254-Gl\/IS Document 134 Filed O9/13/2006 Page 3 of 4
largely to the reduced risk of` bystanders being hit by ovenpenetrating or
ricocheted bullets, and the increased speed of incapaoitation."
Importantly, plaintiffs have failed to adduce any expert evidence critical of the use of
hollow point bullets by the defendants. Although plaintiffs have identified two persons who
claim to be experts on police conduct, neither of them had any criticism of the use of hollow
point bullets in their reports. Plair1tiffs’ sole remaining expert, an economist, obviously had
nothing to say on the issue.
3. The Hefendants Played No Role In The Selection Of Hollow Point
Bullets.
There is no evidence in the record in that the defendants had any choice as to the type of
ammunition issued to them. Thus, even if the issuance of hollow point bullets to Wilmington
police officers amounted to a constitutional deprivation, these defendants played no role in that
conduct.
OF COUNSEL: • · A. Parlcins, Jr. (#859)
yler O’Connell (#45 I4)
Rosamaria Tassone ¢ iards, Layton & Finger
City of Wilmington Law Department One Rodney Square
City/County Building, 9th Floor P. O. Box 551
800 N. French Street Wilmington, Delaware l9899
Wilmington, Delaware 19801 302—65l—7700
302——576~21 75 Parl OCOl1l'[email protected]
Attorneys for Defendants
Dated: September 8, 2006
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Case 1:04-cv-01254-Gl\/IS Document 134 Filed O9/13/2006 Page 4 of 4
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF DELAWARE
CERTIFICATE OE SERVICE
I hereby certify that on September 8, 2006, I electronically filed the foregoing document
with the Clerk of Court using CM/ECP which will send notitication of such filing(s) and Hand
Delivered to the following:
Kester LH. Crosse, Esquire
Williams & Crosse
l2l4 King Street
Suite .300
Wilmington, DE 1980I
I hereby certify that on September S, 2006, I have sent by US Regular Mai}, the
foregoing document to the following nonwegistered participants:
Anne Tr Sutton, Esquire
Post Office Box 2763
Olympia, WA 98507
,,;.. A
fol A, Parkins, Ir. (#859)
Ric ards, Layton & Finger, PA,
` ne Rodney Square
P.O, Box 551
Wilmington, Delaware l9S99
(302) 651-7700
P21I`lCl1}S@I`lf,CO1H
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