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FACTS

On April 4, 2009, Plaintiff James Watkins, a 27 -yearold multiple felon, consumed several drinks, then walked to the lower downtown area of Denver. On his way, he may have smoked marijuana. Once there, Watkins went to LODO's Bar and Grill. The bar was running a drink special on Long Island Ice Teas, a drink made of vodka, rum, gin, tequila and triple sec.

Watkins, by his own admission, drank at least two Long Islands, maybe more, before the special ended. Watkins then drank several beers, and at least one shot of Jaeger Meister, a highoctane liquor.

Watkins claims to have met a girl that night. When the bar closed, along with every other bar in the lower downtown area, Watkins claims to have started walking the girl and her friend to the girl's car.

Because of the many problems associated with hundreds of intoxicated individuals leaving the many bars of lower downtown at one time, the Denver Police Department beefs up patrols in the area. The patrols' job is to keep people moving toward home, and not allow bar patrons to loiter in parking lots.

Denver Police Technician John Ruddy and Sergeant Randy Penn, the defendants in this case, were assigned to those patrols on the night of April 4. Both Ruddy and Penn were standing at the 'corner of 19th Street and Market Street, waiting to begin a patrol through a parking lot, whenPlaintiff Watkins approached them.

Watkins was following two girls. As he passed the officers. he turned to Technician Ruddy, looked him in the eye, and said in a loud and discernable voice, either "You guys suck," or "Cops suck."

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April 4 was not the first time that Technician Ruddy and Sergeant Penn had heard such comments directed toward them. They considered it part of the job. Ruddy told Watkins to knock it off and keep moving. Watkins yelled something else, then began moving through the parking lot.

Several minutes later, Ruddy and Penn, along with several other police officers, began moving through the parking lot in order move people along and prevent too many groups from gathering. Already that night the officers had dealt with one assault and one IS-person fight in the parking lot; they knew that moving people out was important to keeping the peace that evening.

Watkins was still in the parking lot when Ruddy and Penn began their patrol. When Watkins saw the officers walking toward him, he stopped, turned to Sergeant Penn, took one step toward him, and along with several choice words, asked Penn why Penn was harassing him. Penn simply told Watkins to keep moving. Watkins replied, "This is a free country. I don't have to do anything."

Penn again told Watkins to keep moving and get out of the parking lot. Watkins turned to leave and said to Sergeant Penn, "I'd just have to kick your ass anyway."

Watkins walked several more paces, before turning again to Sergeant Penn, and stated, "I'm tired of you harassing me." Watkins then raised his cell phone and told Penn that he was going to take pictures of Penn and Ruddy harassing him.

Because by this time, Watkins had demonstrated clear signs of intoxication, had failed to obey several lawful orders to leave the area, and had threatened to assault Sergeant Penn, Sergeant Penn told Watkins he could take all the pictures he wanted, but Sergeant Penn also

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wanted to see Watkins' identification, Watkins told Penn he didn't have to give Penn anything, and turned again to walk away.

Sergeant Penh walked up behind Watkins and again told Watkins he wanted to see Watkins' identification. Watkins turned to Sergeant Penn, took one step toward Penn, and chest bumped him. Watkins told Sergeant Penn, "Don't even think about touching me." Watkins then turned away,

Sergeant Penn reiterated his demand to see Watkins' identification. But instead of providing his identificaiton, Watkins turned back quickly on Sergeant Penn, and with his left elbow flared to the side, struck Sergeant Penn in the chest, and raised his right fist to strike Penn, Penn quickly pushed Watkins to create distance between them. Watkins stumbled back three to four paces and landed against a parked car. He popped back up with both fists in a fighting position, Penn quickly tried to gain control of Watkins' left hand in order to arrest him.

Technician Ruddy, who thus far hadn't paid attention to the interaction between Watkins and Penn, rushed toward Watkins and attempted to gain control of Watkins' right hand. Watkins was powerful enough to resist Ruddy's efforts, so Ruddy, pursuant to his training, delivered a forearm strike to Watkins' upper chest and face in order to distract Watkins, and give the officers a chance to gain control of Watkins' hands. That effort was unsuccessful, as were multiple commands to stop resisting,

Ruddy chose next, pursuant his training in the use of force, to deliver several knee strikes to Watkins thigh - again in an attempt to distract Watkins long enough to gain control of Watkins' hands. The knee strikes had no effect, and Watkins fought back; at one time trying to kick Sergeant Penn.

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Knowing that a suspect is easier to control when he is prone on the ground, Ruddy and Penn attempted to get Watkins to the ground. But Watkins would only go to his hands and knees, where he locked his elbows and refused to go any further. While Technician Ruddy leaned on Watkins' right shoulder and attempted to unlock Watkins' elbow, Sergeant Penn reached back and swept Watkins' legs out. Watkins fell face first onto the pavement. But he did not stop fighting.

Watkins continued to try to get back to his hands and knees, and continued putting his hands underneath his chest in order to avoid being arrested. On at least one occasion while Technician Ruddy attempted to control Watkins' head, Watkins fell back to the ground and struck his face. After a nearly two minute struggle, Watkins finally gave up. Both Ruddy and Penn stopped applying force, cuffed Watkins, and took him into custody.

The officers immediately called for an ambulance to transport Watkins for medical care.

Watkins had several facial scrapes and one cut over his eye. Instead of cooperating with the paramedic who responded, Watkins verbally berated him. Then, while being driven to the hospital, Watkins removed his restraints, and kicked the paramedic in the head.

At the hospital, Watkins remained uncooperative. He refused to provide nurses and doctors with information. He spat blood at them.

When Denver Police Sergeant Evan Hvisdak arrived to complete a use of force report, Watkins told Hvisdak that he was "pretty drunk." Watkins also told Hvisdak that he doesn't like cops and never has. He also admitted that he anticipated what he expected was an "assault" from the officers, and so he kicked Sergeant Penn first, which caused Watkins to fall to the ground.

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Watkins was ultimately charged with 2nd Degree Assault on a Police Officer. But, for

reasons unknown, the prosecutor dropped the charges pending against Watkins.

Watkins now brings this case against Technician Ruddy and Sergeant Penn. His claims

constitutional violations for false arrest, excessive force, and a failure to intervene. Each claim is

brought via 42 U.s.C. § 1983. Plaintiffs expect at least two evidentiary issues and one legal

issue to be raised during the pendency of the trial. Each is addressed below.

ISSUES FOR TRIAL

I. Evidence that Charges Were Dismissed is Irrelevant and Inadmissible

Defendants Ruddy and Penn anticipate that Plaintiff Watkins will attempt to introduce

evidence or testimony that all criminal charges pending against Watkins as a result of his arrest

were dropped. Such evidence, however. is not relevant to whether excessive force was used to

effect Watkins' arrest. Nor is it relevant to whether there was probable cause to effect Watkins'

arrest. Moreover, such evidence would only serve to confuse the jury as it their and the Court's

role, not that of the prosecutor in the criminal case, to determine if probable cause existed.

Therefore, any evidence or testimony offered to show that the criminal charges were dropped

should be excluded at trial pursuant to Fed. R. Evid. 402 and 403. See, e.g., Scott v. City of

Wichita, 2004 WL 1616641 (lOth Cir. July 20, 2004) (unpublished).

II. The Purported Video of Plaintiffs Arrest is Misleading, and Its Probative Value is Substantially Outweighed by Its Prejudicial Effect

Plaintiff intends to introduce at trial a video taken of the final moments of Watkins' arrest

(the video is also subject to Defendants' objection as detailed in Doc. #79). The video is of very

poor quality. Purportedly taken on a cell phone camera from some distance away, the video is

severely pixelated. The lighting is negligible. It is impossible to discern identities from merely

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