                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 16a0379n.06

                                      Case Nos. 15-1637/1690

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

                                                                                  FILED
                                                                             Jul 06, 2016
RALPH ELDRIDGE,                                    )
                                                                        DEBORAH S. HUNT, Clerk
                                                   )
Plaintiff-Appellant/Cross-Appellee,                )
                                                   )      ON APPEAL FROM THE UNITED
v.                                                 )      STATES DISTRICT COURT FOR
                                                   )      THE EASTERN DISTRICT OF
CITY OF WARREN, MI, a municipal                    )      MICHIGAN
corporation; PATRICK K. MOORE, Police              )
Officer; ROBERT HORLOCKER,                         )
individually and as agent employees of             )
defendant City of Warren, jointly and              )
severally                                          )
                                                   )
Defendants-Appellees/Cross-Appellants.             )
                                                   )
__________________________________/

Before: MERRITT, GIBBONS, and SUTTON, Circuit Judges.

       MERRITT, Circuit Judge. This is a 42 U.S.C. § 1983 suit by Plaintiff-Appellant Ralph

Eldridge, a diabetic who was tasered and arrested by two Warren, Michigan, police officers

while he was suffering a hypoglycemic episode. Eldridge asserts a Fourth Amendment excessive

force claim against Warren police officers Patrick Moore and Robert Horlocker and a municipal

liability claim against the City of Warren. At trial, the jury found that Moore and Horlocker did

not use excessive force against Eldridge, and therefore it did not reach Eldridge’s municipal

liability claim. City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (per curiam) (No case
Case Nos. 15-1637/1690, Eldridge v. City of Warren


authorizes “the award of damages against a municipal corporation based on the actions of one of

its officers when . . . the officer inflicted no constitutional harm.”). The issue in this appeal is

whether a video depicting Moore’s prior use of a taser against an individual in police custody is

admissible as evidence on Eldridge’s excessive force and municipal liability claims.1                           The

district court excluded the video from evidence, finding that Rules 403 and 404(b) of the Federal

Rules of Evidence precluded the video’s admission.                    For the reasons set forth below, we

AFFIRM.

                                                     I. Facts

        On the morning of June 18, 2009, the Warren Police Department was advised that a man

had erratically driven his truck over a curb and stopped in a construction area. Warren police

officers Moore and Horlocker were dispatched to the scene where they found Eldridge sitting in

the driver’s seat of the truck. Because Eldridge did not comply with the officers’ commands that

he “step out” of the truck and resisted when the officers tried to remove him from the truck,

Moore deployed his taser against Eldridge, and the officers used physical force to handcuff

Eldridge. Upon securing Eldridge, Moore and Horlocker located an insulin pump on Eldridge’s

person and learned that Eldridge was suffering from a hypoglycemic episode. The officers

called an ambulance to the scene, and they later transported Eldridge to his home.

        In the aftermath of this incident, Eldridge filed suit under 42 U.S.C. § 1983, asserting a

Fourth Amendment excessive force claim against Moore and Horlocker and a municipal liability

claim against Warren for failure to train its officers. We affirmed the district court’s ruling


        1
           The City of Warren also brings a protective cross-appeal, arguing that even if the district court erred in
excluding the video depicting Moore’s prior taser use, a new trial is not warranted because the “video—standing
alone—was insufficient to establish that the City of Warren had a constitutionally violative custom, policy, or
practice.” (Appellee’s Br. at 34-35). Because we conclude that the district court properly excluded the video from
evidence on Eldridge’s excessive force claim and that Eldridge cannot maintain his municipal liability claim in the
absence of a constitutional violation by Moore and Horlocker, we dismiss the City of Warren’s cross-appeal as
moot.

                                                       -2-
Case Nos. 15-1637/1690, Eldridge v. City of Warren


denying Moore and Horlocker qualified immunity, Eldridge v. City of Warren, 533 F. App’x 529

(6th Cir. 2013), and the case was set for trial.

       Before trial, Moore, Horlocker, and the City of Warren (together “the Defendants”) filed

a motion in limine seeking to preclude Eldridge from introducing at trial evidence of prior acts of

excessive force by Moore and Horlocker and of prior taser use by Warren police officers in the

form of use of non-lethal force reports. Eldridge opposed the motion. On July 7, 2014, Judge

Cook issued an order granting in part and denying in part the Defendants’ motion. Specifically,

the district court excluded from evidence prior instances in which Moore and Horlocker used

excessive force, but the court ordered that evidence of prior taser deployments by Warren police

officers was admissible because the use of non-lethal force reports were “highly relevant to

[Eldridge’s municipal liability] claim and permissible for ‘other purposes’ to establish the

absence of mistake.”

       While trial was pending, Judge Cook retired, and on February 26, 2015, the case was

reassigned to Judge Roberts. In front of Judge Roberts, the Defendants filed a motion in limine

that for the first time sought to preclude the introduction of a video depicting Moore tasering an

individual in the custody of the Warren Police Department after the individual, who was sitting

in a chair, apparently did not comply with an officer’s commands. At the subsequent hearing,

Eldridge told the court that he intended to introduce this video into evidence at trial to help prove

his municipal liability claim against Warren. Judge Roberts concluded that Eldridge could

attempt to introduce the video at trial.

       The case went to trial on April 27, 2015. On the second day of trial, Judge Roberts

ordered that the video depicting Moore’s prior taser use be excluded from evidence, stating that:

               [T]he Court has just reviewed a videotape; . . . Plaintiff wants to
               introduce this to prove its [sic] his Monell claim against the City of

                                                   -3-
Case Nos. 15-1637/1690, Eldridge v. City of Warren


                  Warren. The Court is not going to admit this video. Under 403(b),
                  the Court believes that while it may have some probative value on
                  the Monell claim, its probative value is outweighed by its
                  prejudicial value and I make that decision in conjunction with
                  404(b) which precludes the admission of prior acts in order to
                  prove that someone acted consistently on this occasion that is at
                  issue in the lawsuit. Although the Court could give a limiting
                  instruction, I don’t believe that that limiting instruction would have
                  the value that it should have in getting the Jury to separate out this
                  evidence as probative on the Monell claim and [a]s not being
                  probative on the claim against . . . Officer Moore in his individual
                  capacity.

Transcript of Record at 1001, Eldridge v. City of Warren, No. 2:10-cv-12893 (E.D. Mich. Apr.

30, 2015).2 The court also instructed Eldridge that he could not question Moore about the

incident depicted in the video.

         On April 30, 2015, the jury returned a verdict in favor of the Defendants, finding that

Moore and Horlocker did not use excessive force against Eldridge in violation of the Fourth

Amendment. Because there was no constitutional violation, the jury did not consider Eldridge’s

municipal liability claim. Eldridge now appeals to this Court, seeking both admission of the

video depicting Moore’s prior taser use and a new trial.

                                                 II. Discussion

         While Eldridge argued at trial that the video of Moore’s prior taser use should be

admitted because it was probative of his municipal liability claim, he focuses on a different

argument on appeal: that the video of Moore’s prior taser use is admissible on Eldridge’s

excessive force claim because it is probative of Moore and Horlocker’s absence of mistake or

modus operandi in tasering Eldridge. Because Eldridge cannot maintain his municipal liability

claim in the absence of a finding that Moore and Horlocker used excessive force against him,


         2
           Despite Eldridge’s claims to the contrary, Judge Roberts’ decision to exclude the video did not contradict
a prior ruling by Judge Cook. In fact, Judge Cook did not specifically address whether the video of Moore’s prior
taser use was admissible on either of Eldridge’s claims.

                                                       -4-
Case Nos. 15-1637/1690, Eldridge v. City of Warren


and because the jury found that the officers did not commit a constitutional violation, any hope

Eldridge has for relief depends entirely on the video’s admissibility on his excessive force claim.

Thus, we begin by considering whether the district court erred in excluding the video from

evidence on Eldridge’s excessive force claim. The district court determined that Rule 404(b)

precluded the video’s admissibility on that claim.

        We review the district court’s decision to exclude evidence under Rule 404(b) for abuse

of discretion. United States v. English, 785 F.3d 1052, 1055 (6th Cir. 2015).3 “Under the abuse

of discretion standard, ‘we will leave rulings about admissibility undisturbed unless we are left

with the definite and firm conviction that the district court committed a clear error in judgment.’”

United States v. Bell, 516 F.3d 432, 440 (6th Cir. 2008) (quoting United States v. Dixon,

413 F.3d 540, 544 (6th Cir. 2005)).

        Under Rule 404(b), evidence of another “crime, wrong, or other act is not admissible to

prove a person’s character in order to show that on a particular occasion the person acted in

accordance with the character.”           This evidence may, however, be admissible for “proving

motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of

accident.” Fed. R. Evid. 404(b)(2). “Before the court may admit [Rule] 404(b) evidence, it

must: (1) determine whether this is sufficient evidence that the prior acts occurred; (2) determine

whether the other act is admissible for one of the proper purposes outlined in the rule; and

(3) apply Rule 403 balancing to determine whether the probative value of the evidence is




3
 While we normally review evidentiary issues for abuse of discretion, the proper standard of review of Rule 404(b)
evidence is subject to an ongoing dispute in this Circuit. See United States v. Olive, 804 F.3d 747, 754 (6th Cir.
2015) (employing clear error, de novo, and abuse of discretion review as part of a three-part test to determine the
admissibility of Rule 404(b) evidence); English, 785 F.3d at 1055 (reviewing for abuse of discretion the district
court’s decision to admit Rule 404(b) evidence). Because the video is not admissible under either standard, we need
not resolve this dispute here.

                                                       -5-
Case Nos. 15-1637/1690, Eldridge v. City of Warren


substantially outweighed by the danger of unfair prejudice.” United States v. Hardy, 643 F.3d

143, 150 (6th Cir. 2011) (citing United States v. Allen, 619 F.3d 518, 523 (6th Cir. 2010)).

         Because the prior act Eldridge seeks to introduce involves a video showing Moore’s prior

taser use, there is no dispute that the act occurred. Therefore, Eldridge focuses his argument on

whether the act is admissible for a proper purpose under Rule 404(b)(2) and whether the act’s

probative value is substantially outweighed by the danger of unfair prejudice under Rule 403.

         First, Eldridge argues that the video depicting Moore’s prior use of his taser is admissible

on his excessive force claim because it shows the officers’ absence of mistake in tasering

Eldridge. 4 Eldridge’s argument is without merit because he does not even begin to explain how

the video could show the officers’ absence of mistake in using force against him. Perhaps this is

because Moore and Horlocker do not claim that they accidentally used force against Eldridge. In

fact, Moore testified that he intentionally deployed his taser against Eldridge. See Chavez v. City

of Albuquerque, 402 F.3d 1039, 1046 (10th Cir. 2005) (stating that evidence of an officer’s prior

use of force is not admissible to show absence of mistake when there is no claim or defense that

the officer accidentally used force in the present case). The closest Eldridge gets to making a

credible argument is through his assertion that Moore and Horlocker rely on the defense of

mistake in alleging that they lacked knowledge of Eldridge’s medical condition when they used

force against him. (Appellant’s Reply Br. at 10-11). But the video of Moore’s prior taser use is

not relevant to Moore and Horlocker’s lack of knowledge regarding Eldridge’s medical condition

because the video does not show Moore tasering an individual suffering from a medical


         4
            At oral argument, Eldridge’s counsel raised a different argument: that the video of Moore’s prior taser
use was admissible on Eldridge’s excessive force claim as evidence of Moore’s modus operandi—which provides a
proper ground for admission when identity is at issue. But identity is not at issue in this case. And in any event, the
similarity between Moore’s prior taser use and the officers’ use of force against Eldridge is not “striking,” and
Moore’s simple deployment of a taser in both instances certainly does not amount to the “signature” we typically
require to show modus operandi. United States v. Joseph, 270 F. App’x 399, 406 (6th Cir. 2008) (per curiam)
(citations and internal quotation marks omitted).

                                                        -6-
Case Nos. 15-1637/1690, Eldridge v. City of Warren


condition. Instead, it simply depicts Moore tasering an apparently non-compliant individual in

police custody.

       Thus, the district court did not abuse its discretion in excluding the video showing

Moore’s prior taser use under Rule 404(b).

       Because the video is not admissible on Eldridge’s excessive force claim, and because the

jury found no constitutional violation on that claim, we need not reach the question of whether

the district court abused its discretion in excluding the video from evidence on Eldridge’s

municipal liability claim.

       The judgment of the district court is AFFIRMED.




                                             -7-
