Tara-Lee Campbell v. Brian Ackerman

In the aftermath of a four-day

jury trial culminating in a take-nothing verdict, plaintiffappellant

Tara-Lee Campbell challenges the district court's

exclusion of certain evidence.1 Concluding, as we do, that

Campbell's grounds for attacking one set of challenged evidentiary

rulings were not advanced below and that her remaining challenge

is moot, we affirm the judgment below.

I. BACKGROUND

We sketch the pertinent facts and travel of the case.

On November 19, 2013, members of the Emergency Services Unit (ESU)

of the Cumberland County Sheriff's Office (Sheriff's Office)

executed a search warrant at the home of Campbell and her thenhusband,

Byron Manchester, in Casco, Maine. Defendant-appellee

Brian Ackerman, a detective, had obtained the warrant based on

allegations limning probable cause to believe that Manchester was

a felon in possession of firearms. As matters turned out,

Manchester was not a convicted felon and, thus, the search warrant

was issued on a faulty premise.

1 A district judge presided over the early phases of this

case. The parties then agreed to proceed before a magistrate

judge, see 28 U.S.C. § 636(c); Fed. R. Civ. P. 73(a), who presided

over all subsequent phases (including the trial). We do not

distinguish between these two judicial officers but, rather, take

an institutional view and refer to the rulings below as those of

the district court.

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The ESU was the functional equivalent of a SWAT team.

Its members were equipped with tactical gear and semi-automatic

weapons. At trial, the facts surrounding the execution of the

search were hotly disputed. Campbell testified that Detective

Ackerman — in an effort to move Campbell away from the house —

dragged her across the yard as she stumbled over gravel and rocks.

Detective Ackerman contested this narrative, asserting that he

never touched Campbell and made no effort to restrain her.

Manchester was arrested following the search, but he was

released the same day. No charges were pressed. Even so, the

saga did not end there: Campbell and Manchester sued Detective

Ackerman and the Sheriff's Office in the federal district court,

alleging among other things violations of the Fourth Amendment and

42 U.S.C. § 1983. As relevant here, the complaint alleged that

Campbell's Fourth Amendment rights had been violated by Detective

Ackerman's use of excessive force while executing the search

warrant.2 Notably, the complaint did not endeavor to state any

claim concerning the validity of the warrant.

2 Although the complaint asserted a number of other claims on

behalf of both Campbell and Manchester, the present appeal concerns

only Campbell's excessive force claim. Though Manchester was also

unsuccessful in pursing his claims, he has not appealed. No useful

purpose would be served by describing either Manchester's

allegations or any of the claims other than Campbell's excessive

force claim.

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On November 9, 2016, the district court convened a prefiling

status conference. See D. Me. R. 56(h). At that time,

Campbell agreed that her only cause of action under the Fourth

Amendment and section 1983 was an excessive force claim, explicitly

disavowing any "illegal search claim." Consequently, the parties

stipulated that "[t]he search warrant is relevant only to the

extent it provide[s] grounds for the officers' use of force."

These agreements were confirmed in an order entered by the district

court. See id. (requiring entry of order "reciting the action

taken at [pre-filing status] conference").

Campbell subsequently joined in an attempt to amend the

complaint to add a claim, also in pursuance of the Fourth Amendment

and section 1983, that the search warrant was unlawfully obtained.

The district court denied this motion,3 holding that Campbell could

not "back away" from her earlier agreement and could not belatedly

"attempt to make an illegal search claim." The court made

pellucid, though, that it was not excluding evidence relating to

the procurement or validity of the warrant insofar as such evidence

might be shown to be relevant to the excessive force claim by "the

defendants rely[ing] on the warrant to support any belief that

force of a certain level was required and their knowledge of the

circumstances of the warrant's issuance."

3 On appeal, Campbell does not assign error to the denial of

this motion.

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During the later stages of pretrial proceedings, the

parties skirmished regarding the admissibility of evidence related

to the issuance of the warrant. The defendants moved in limine,

premised on the district court's earlier ruling, to exclude any

trial evidence relating to the procurement of the warrant.

Campbell countered by filing a self-styled motion in limine

offering "supplemental argument" in opposition to the exclusion of

such evidence. The district court resolved these competing motions

on the first day of trial: it ruled provisionally that, consistent

with the parties' prior agreements and with its own earlier

decisions, Campbell could not present evidence relating to either

the procurement or the validity of the search warrant unless she

first laid a foundation establishing the relevance of such evidence

to her excessive force claim.

The trial went forward. On the third day, the district

court formally granted in part and denied in part Campbell's motion

in limine. Specifically, the court allowed the introduction of

evidence concerning Detective Ackerman's involvement in the

decisions about how to execute the warrant (including the decision

to employ a SWAT team) but again refused to allow evidence relating

to either the procurement or the validity of the warrant.

At a separate point in the trial, the district court

made a separate evidentiary ruling, limiting Campbell's testimony

anent the damages that she allegedly sustained. Though the court

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permitted her to testify regarding her claimed emotional distress

and the medical treatment she received, it did not permit her to

testify regarding her medical bills. The court concluded that

this evidence could not be admitted without competent proof (say,

through a physician's testimony) of a causal link between the

incident and the expenses allegedly incurred. Cf. Barnes v.

Anderson, 202 F.3d 150, 159-60 (2d Cir. 1999) (affirming ruling

that plaintiffs must produce expert medical evidence to forge

causal link between defendants' actions and claimed injury).

Following the close of all the evidence, final arguments

of counsel, and the court's charge, the jury retired to deliberate.

It thereafter returned a verdict that, as relevant here, rejected

Campbell's excessive force claim. In a special finding, see Fed.

R. Civ. P. 49(a), the jury found that Detective Ackerman had not

used excessive force vis-á-vis Campbell. This timely appeal

ensued.

II. ANALYSIS

In this venue, Campbell challenges both the district

court's rulings on the motions in limine (which resulted in the

exclusion of evidence concerning the procurement and validity of

the search warrant) and the district court's refusal to admit her

medical bills into evidence. We address these challenges

sequentially.

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A.

To begin, Campbell assigns error to the district court's

exclusion of evidence relating to the procurement and validity of

the warrant. A district court's decision to exclude evidence —

including its ruling on a motion in limine that has the effect of

excluding evidence — is reviewed for abuse of discretion. See

Clukey v. Town of Camden, 894 F.3d 25, 34 (1st Cir. 2018); United

States v. Nguyen, 542 F.3d 275, 279 (1st Cir. 2008).

Before us, Campbell submits that the court below abused

its discretion because the excluded evidence would have

established that the warrant was invalid and because events

surrounding the procurement of the warrant were "facts and

circumstances" shedding light upon the objective reasonableness of

the level of force used during the search.4 Here, however,

Campbell's challenge is stillborn: it suffers from a failure to

launch. She predicates her assignment of error on legal theories

4 In her brief on appeal, Campbell conclusorily asserts that

the district court "should have reasoned there was an alternative

theory" for the admission of the evidence — that it was meant to

show the defendants' "motive and/or plan" under Federal Rule of

Evidence 404(b)(2) or that it was "stand-alone" evidence of motive.

We deem this argument, which is made in a cursory manner bereft of

any developed rationale, to be waived. See United States v.

Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (explaining that "issues

adverted to in a perfunctory manner, unaccompanied by some effort

at developed argumentation, are deemed waived").

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and arguments that — based on the available record5 — appear to be

raised for the first time on appeal.

Our jurisprudence simply does not allow a litigant to

switch horses in mid-stream, abandoning theories and arguments

raised in the trial court and substituting in their place new ones

raised for the first time in the court of appeals. Indeed, "[i]f

any principle is settled in this circuit, it is that, absent the

most extraordinary circumstances, legal theories not raised

squarely in the lower court cannot be broached for the first time

on appeal." Teamsters, Chauffeurs, Warehousemen & Helpers Union

v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992). We

have adhered to this prudential principle with a regularity

bordering on the monotonous. See, e.g., Potvin v. Speedway LLC,

891 F.3d 410, 415 (1st Cir. 2018); Bos. Redev. Auth. v. Nat'l Park

Serv., 838 F.3d 42, 50 (1st Cir. 2016); Clauson v. Smith, 823 F.2d

660, 666 (1st Cir. 1987).

So it is here. When Campbell opposed the government's

motion in limine in the district court, she argued that the

contested evidence was relevant because, without it, the jury would

5 The record on appeal does not contain transcripts of all

relevant conferences that were conducted by telephonic means. Nor

does it contain all the email communications referred to by the

parties. As the appellant, Campbell has the duty to furnish the

record on appeal. See Fed. R. App. P. 10(b)-(c). Consequently,

she must "bear the brunt of an insufficient record." Real v.

Hogan, 828 F.2d 58, 60-61 (1st Cir. 1987); see Teixeira v. Town of

Coventry, 882 F.3d 13, 19 n.4 (1st Cir. 2018).

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think (incorrectly) that she and Manchester had done "something

wrong." Her fallback position was that the evidence was relevant

because it bore upon Detective Ackerman's credibility. She did

not connect — let alone base her argumentation on — the supposed

relevance of the evidence to the reasonableness of the level of

force used by the officers when carrying out the search.

Nor did Campbell fill this gap when she sought to

introduce the contested evidence during the trial. At that time,

she made only confusing allusions to her reasons for wanting to

admit the evidence — and she did not clearly spell out either of

the theories that she now seeks to advance. In this court, she

does not identify any extraordinary circumstances that might tend

to justify her failure to assert these theories and arguments

below. Under Superline, see 953 F.2d at 21, her newly minted

asseverational array cannot make its debut on appeal. Thus, her

claim of error fails.

B.

This brings us to Campbell's second claim of error. The

claim relates to the district court's exclusion of Campbell's

proffered medical bills at trial. Those bills, however, were

relevant only to the issue of damages. See, e.g., Fink v. Foley-

Belsaw Co., 983 F.2d 111, 115 (8th Cir. 1993).

This claim of error need not detain us. It is settled

law that when liability has been resolved against a plaintiff, any

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claims of error relating exclusively to damages are moot. See

A.M. Capen's Co. v. Am. Trading & Prod. Corp., 202 F.3d 469, 471

n.3 (1st Cir. 2000); Sheils Title Co. v. Commonwealth Land Title

Ins. Co., 184 F.3d 10, 18 (1st Cir. 1999); Tiernan v. Blyth,

Eastman, Dillon & Co., 719 F.2d 1, 5 n.5 (1st Cir. 1983). This is

such a case: the medical bills were relevant only to the issue of

damages — and that is the end of the matter. Because the jury

found no liability and Campbell has not successfully challenged

that finding, see supra Part II(A), and all issues regarding

damages (including the issue of whether Campbell's medical bills

should have been admitted into evidence) are moot.

We need go no further. For the reasons elucidated above,

the judgment of the district court is

Affirmed.