United States District Court, D. Montana, Butte Division
W. MOLLOY, DISTRICT JUDGE
2012, Defendant Doug Lieurance ("Deputy Lieurance")
cited Plaintiff Anthony Reed ("Reed") for
obstructing a bison herding operation outside of Yellowstone
National Park ("the Park"). Reed is a volunteer
with the Buffalo Field Campaign ("Campaign"), a
§ 501(c)(3) non-profit conservation organization that
sends volunteers to observe and document the herding or
"hazing" of bison in or near the Park. Reed v.
Lieurance, 863 F.3d 1196, 1201 (9th Cir. 2017). Reed
brought this action pursuant to 42 U.S.C. § 1983,
alleging that Deputy Lieurance's conduct violated his
First and Fourth Amendment rights and related Montana
constitutional rights, and that Gallatin County, the Gallatin
County Sheriffs Office, and Sheriff Brian Gootkin failed to
train officers on Montana's obstruction statute and the
First and Fourth Amendments. (Doc. 1.)
is set for February 20, 2018. (Doc. 141.) Both parties have
filed motions in limine. (See Docs. 159, 161.) Those motions
are granted-in-part and denied-in-part as discussed below.
Reed's Motions in Limine (Doc. 159)
first seeks to bar the defendants from presenting evidence at
trial regarding Reed's criminal record other than the May
23, 2012 incident at issue. That motion is
GRANTED, subject to Reed himself
"opening the door." See Fed. R. Evid.
608(a), 609, 403.
further asks the defendants be precluded from submitting
undisclosed expert testimony at trial. The defendants did not
respond to this request. Cf. L.R. 7.1 (d)(1)(B)(ii)
(deeming the failure to file a response brief as an
indication that the motion is well-taken). That motion is
GRANTED. See Yeti by Molly, Ltd. v.
Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir.
also asks that the defendants be precluded from presenting or
soliciting any evidence or representations during trial of
crimes, wrongs, or other bad acts by individuals that may
have scared horses, bison, or riders during haze operations
in the past. That motion is DENIED insofar
as such evidence is relevant to establishing Reed's
intent and Deputy Lieurance's knowledge of that intent
under the Montana obstruction statute. Fed.R.Evid. 404(b)(2);
see Reed, 863 F.3d at 1206. Reed may renew his
objection at trial. See Fed. R. Evid. 103(b).
further requests that the defendants not be allowed to
present any evidence at trial regarding training that
occurred prior to September 18, 2006 or after May 23, 2012.
That motion is DENIED subject to renewal at
trial. See Fed. R. Evid. 103(b); Cech v.
State, 604 P.2d 97, 101-02 (Mont. 1979) (affirming
admission of evidence of subsequent remedial measures as
relevant to feasibility of remedy and possible impeachment).
Reed invokes Rule 615 of the Federal Rules of Evidence and
asks that lay witnesses who are not parties be excluded from
the courtroom during trial. The defendants did not oppose
this request. Cf. L.R. 7.1(d)(1)(B)(ii). That motion
is GRANTED. Additionally, counsel cannot
disclose testimony or tell excluded witnesses about what
happened in court other than in the ordinary preparation of
witnesses. Counsel are also obligated to admonish witnesses
not to blog, tweet, text, email, or communicate about the
case or read any such items on the internet to prepare for
The Defendants' Motions in Limine (Doc. 161)
defendants seek to exclude any reference to insurance and
settlement negotiations. Because Reed does not identify a
situation in which such evidence may be properly admitted in
the context of this case, those motions are GRANTED.
See Fed. R. Evid. 408, 411.
defendants also seek to prohibit Reed and his companion Kasi
Craddock-Crocker from testifying where the bison hazing
operation crossed Highway 191 on May 23, 2012. The defendants
insist testimony on this point would be improper because Reed
and Craddock-Crocker lack personal knowledge. See
Fed. R. Evid. 602. The defendants' request is premature.
As the defendant's own motion indicates, Reed has
knowledge of where he believed the haze occurred, provided
both by Tierney and relayed to him over the radio.
(See Doc. 162 at 6-8.) The admissibility of
particular statements will be addressed in the context of
trial. The defendants' motion to exclude this testimony
is DENIED, subject to renewal in the context
of trial. See Fed. R. Evid. 103(b).
the defendants seek to exclude all evidence relating to the
prior trial, the Ninth Circuit appeal, and the Ninth
Circuit's decision on appeal. (Doc. 162 at 2-4.) Taking
the opposite extreme, Reed insists that all factual decisions
and legal issues are "the law of the case" and
admissible as substantive evidence.
167 at 5-12.) The "evidence" at issue can be placed
in three categories: (1) previous factual determinations, (2)
previous legal determinations, and (3) previous evidentiary
rulings. As to the first, Reed is correct that those matters
"disposed of by [the Ninth Circuit's] decree"
binds this Court. Visciotti v. Martel,862 F.3d 749,
763 (9th Cir. 2016). However, the crux of the Ninth
Circuit's decision on appeal is that factual disputes
warrant a determination of the substantive matters by a jury.
See Reed, 863 F.3d at 1206-07, 1211-12 (outlining
the myriad factual conclusions a jury could draw as
to the constitutional violations alleged). Because the Ninth
Circuit did not definitively find these facts, the very
premise of Reed's argument fails. Use of the existing
factual record and testimony is limited to impeachment and
the rules governing the admission of prior inconsistent
statements. See Fed. R. Evid. 801(d)(1)(A). To the