Corrigan v. Glover (254 F. Supp. 3d 184, 2017)

MEMORANDUM OPINION

BERYL A. HOWELL, Chief Judge

The plaintiff, Matthew Corrigan, brought this lawsuit, pursuant to 42 U.S.C. § 1983, against the District of Columbia and over twenty named and unnamed officers of the Metropolitan Police Department (“MPD”), seeking damages for violation of his Fourth Amendment rights arising from a warrantless search of his home on February 3, 2010. See generally Compl., ECF No. 1; First Am. Compl. (“FAC”), ECF No. 11. During the ensuing litigation, twenty-two of the individual defendants were dismissed voluntarily by the plaintiff or their motions to dismiss or motions for summary judgment were granted. This Court then granted the motions for summary judgment by the four remaining defendants, the District of Columbia, Lieutenant Robert Glover, Sergeant Kevin Pope, and Officer Mark Leone, ruling that no violation of a clearly established right had occurred and .that the officers were entitled to qualified immunity. See Corrigan v. District of Columbia, Civil No. 12-173 (BAH), 2015 WL 5031364 (D.D.C. Aug. 25, 2015). This ruling was subsequently affirmed in part and reversed in part by the D.C. Circuit. See Corrigan v. District of Columbia, 841 F.3d 1022 (D.C. Cir. 2016).

Although before this Court the parties, in examining the totality of the circumstances, see Grady v. North Carolina, — U.S. -, 135 S.Ct. 1368, 1371, 191 L.Ed.2d 459 (2015) (noting “reasonableness of a search depends on the totality of the circumstances, including the nature and purpose of the search and the extent to which the search intrudes upon reasonable privacy expectations”), treated the challenged MPD search as a single, continuous incident, the D.C. Circuit delineated two distinct searches based on the different purpose and scope of the searches conducted of the plaintiffs basement apartment by two separate MPD units, see PL’s Statement of Material Facts (“Pl.’s SMF”), Ex. 2, Dep. of Lt. Robert Glover (“Glover Dep”) at 38:13, ECF No. 87-1 (describing the plaintiffs home as an “English basement apartment”). Specifically, the D.C. Circuit concluded that while the MPD officers involved in the first search, conducted by the MPD’s Emergency Response Team (“ERT”), were entitled to qualified immunity, Corrigan, 841 F.3d at 1035 (“For the brief and limited warrant-less ERT ‘sweep’ of Corrigan’s home, the officers had a sufficiently reasonable basis for believing there was probable cause to look for a potentially injured and incapacitated person as to entitle them to qualified immunity.”), the MPD officers involved in the second search, conducted by the MPD’s Explosive Ordinance Disposal unit (“EOD”), were not, id. (“We therefore hold that the EOD search violated Corrigan’s rights under the Fourth Amendment.”); id. at 1025 (“because no reasonable officer could have concluded such a basis [an exigency] existed for the second more intrusive search, the officers were not entitled to qualified immunity across the board”); id. at 1033 (“the extensive EOD search far exceeded the bounds of reasonableness”).

As the plaintiff points out, the defendants “did not appeal this ruling.” Pl.’s Reply Mem. Supp. Mot. Part. Summ. J. and Mot. in Limine (“PL’s Reply”), at 4, ECF No. 147. The D.C. Circuit remanded the plaintiffs claim of municipal liability against the District of Columbia, which is now moot in light of the plaintiffs voluntary dismissal of the municipality, see Pl.’s Opp’n Defs.’ Supp. Mot. Summ. J. (“PL’s Opp’n”), at 1, ECF No. 184, and the issue of whether Ofc. Mark Leone is entitled to qualified immunity “because [he] reasonably relied on the directive of [his] superi- or,” in conducting the EOD search, Corri-gan, 841 F.3d at 1038.

The trial in this matter is scheduled to begin on the date the parties jointly suggested, on July 10, 2017. See Consent Motion for New Trial Date (May 20, 2017), ECF No. 143; Minute Order (May 22, 2017) (granting motion and scheduling trial for July 10, 2017). Pending before the Court are (1) Ofc. Leone’s supplemental motion for summary judgment, Def.’s Supp. Mot. Summ. J. (“Def.’s Supp. MSJ”), ECF No. 131; (2) the plaintiffs motion in limine or for partial summary judgment, PL’s Mot. In Limine or Partial Summ. J. (“PL’s Mot.”), ECF No. 138; and (3) the defendants’ motions in limine, see Defs.’ Mot. In Limine, ECF No. 104; Defs.’ Mot. In Limine, ECF No. 105, which motions were originally denied as moot in 2015, see Order, ECF No. 125, but, on remand, have been reinstated, at the defendants’ request, Defs.’ Notice of Filing Re: Mots. In Limine, at 1, ECF No. 137.

I. BACKGROUND

The background of this case has been fully summarized in prior decisions in this case, see generally Corrigan v. District of Columbia, 841 F.3d at 1025-28; Corrigan v. District of Columbia, 2015 WL 5031364, at *1-4, and, thus, only those facts necessary for resolving the instant motions are provided below.

On February 2, 2010, during a telephone call to the National Suicide Hotline, the plaintiff informed the hotline operator that he was a military veteran and owned firearms. FAC ¶¶ 9. “After a short conversation, [the plaintiff] hung up, turned off [his] phone, took prescribed sleeping medication, and went to bed.” Id. The hotline operator then called 911, Defs.’ Suppl. Statement of Material Facts as to which there is no Genuine Dispute in Further Supp. of Defs.’ Mot. Summ. J. (“Defs.’ Suppl. SMF”) ¶1, ECF No. 119-1, and MPD officers were dispatched to the plaintiffs home based on a “report of an ‘Attempted Suicide,’ ” Def. District of Columbia’s Mot. Summ. J., Ex. 5 (“Barricade Report from 2408 N. Capitol St. NW (5D) on Wednesday, February 3, 2010 (ERT # 10-11), Feb. 9, 2010 (“Incident Rep.”)”) at 1, ECF No. 76-4. After an odor of natural gas was detected, a barricade situation was declared and members of the MPD’s ERT, part of the MPD’s “Special Operations Division” (“SOD”), were dispatched to the scene. Id. at 1-2.

Around 2:30 A.M., approximately three- and-a-half hours after MPD officers first arrived on the scene, defendant Lt. Robert Glover arrived. Incident Rep. at 2; Defs.’ Suppl. SMF ¶3. At approximately 4:00 A.M., the plaintiff awoke after hearing his name being called on a bullhorn and around 4:50 A.M. the plaintiff peacefully exited the apartment and was taken into policé custody. FAC ¶¶ 10-11. The plaintiff did not give the MPD consent to enter his apartment, but Lt. Glover nonetheless ordered the ERT to immediately break into the apartment and conduct a “sweep” of the apartment to determine whether any other individuals remained in the apartment. Def. Glover’s Statement of Material Facts as to which there is no Genuine Dispute (“Glover SMF”) ¶27, ECF No. 79; see also Pl.’s Response to Defendants’ Statement of Material Facts ¶ 38, ECF No. 86-1. After no other individuals were found in the apartment, Lt. Glover ordered the EOD to enter and search the plaintiffs apartment for explosives or other hazardous materials., Glover SMF ¶ 32; see also Glover Dep. at 10:1-22 (“I directed the members of the [ERT] Entry Team to enter and search for any human threats that remained or victims. And I also directed members of the [EOD] to enter and check for any hazardous materials that could remain on the scene and be dangerous to the public or anybody else in that block or area.”).

Ofc. Mark Leone conducted the EOD search. Pl.’s SMF, Ex. 5, Deposition of Officer Mark Leone (“Leone Dep.”), at 19:7, ECF No. 87-1. Ofc. Leone was informed of a “barricade situation in reference somebody [sic] had a military background and that they were requesting that we cleared [sic] the apartment for any hazardous materials.” Id. at 18:13-17. Before he conducted the search, Ofc. Leone had been told that ERT.had already been in the apartment and that they had searched to “make sure there that there wasn’t any other people in the apartment.” Id. at 20:9-12. Thus, Ofc. Leone knew when he entered the .apartment that no other people were inside. Id. at 20:13-15. Ofc. Leone “didn’t know one way or another” if there was probable cause to believe that there were hazardous materials in the apartment. Id. at 21:21-22; see also id. at 101:11-15; 109:11-13. Nonetheless, Ofc. Leone then “performed a search on the apartment to clear for any booby traps or explosive devices, [or] hazardous materials.” Id. at 19:1-4. This search was performed despite the fact that he had not been told that any MPD officer had seen explosives or that anyone heard that explosives were in the apartment. Id. at 22:2-7; see also id. at 101:16-21. Instead, he was merely advised that “due to the [plaintiffs] military background [MPD] believed that the [sic] possibility of explosives could be in the apartment.” Id. at 91:18-22. During Ofc. Leone’s search, he “cut open every zipped bag, dumped onto the floor the contents of every box and drawer, broke into locked boxes under the bed and in the closet, emptied shelves into piles in each room, and broke into locked boxes containing Corrigan’s three firearms,” Corrigan, 841 F.3d at 1028 (citing Pl.’s Answers to Interrogs., ¶ 8; FAC ¶ 22), resulting in the seizure from “[i]nside the locked boxes, ... an assault rifle, two handguns, a military smoke grenade, a military “whistler” device, fireworks, and ammunition,” id.

II. LEGAL STANDARD

A. Summary Judgment

Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The moving party bears the burden of demonstrating the “absence of a genuine issue of material fact” in dispute, Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), while the nonmov-ing party must present specific facts supported by materials in the record that would be admissible at trial and that could enable a reasonable jury to find in its favor, see Anderson v. Liberty Lobby, Inc. (“Liberty Lobby”), 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Allen v. Johnson, 795 F.3d 34, 38 (D.C. Cir. 2015) (noting that, on summary judgment, the appropriate inquiry is “whether, on the evidence so viewed, a reasonable jury could return a verdict for the nonmoving party” (internal quotation marks omitted)); see also Fed. R. Civ. P. 56(c), (e)(2)-(3). In making this evaluation, “courts may not resolve genuine disputes of fact in favor of the party seeking summary judgment,” Tolan v. Cotton, — U.S.-, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014) (per curiam), and “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor,” id. at 1863 (quoting Liberty Lobby, 477 U.S. at 255, 106 S.Ct. 2505 (alteration in original)).

B. Motions In Limine

The Supreme Court has recognized that “[although the Federal Rules of Evidence do not explicitly authorize in limine rulings, the practice has developed pursuant to the district court’s inherent authority to manage the course of trials.” Luce v. United States, 469 U.S. 38, 41 n.4, 105 S.Ct. 460, 83 L.Ed.2d 443, (1984); see id. at 40, 105 S.Ct. 460 n.2 (defining motion in li-mine “in a broad sense to refer to any motion, whether made before or during trial, to exclude anticipated prejudicial evidence before the evidence is actually offered”). Indeed, Rule 103(d) of the Federal Rules of Evidence mandates that the court must conduct a jury trial to the extent practicable so that inadmissible evidence is not suggested to the jury by any means. Fed. R. Evid. 103(d). Pretrial motions in limine are an important mechanism to effectuate this goal of insulating the jury from inadmissible evidence and further the purpose of the rules, generally, to administer the proceedings “fairly ... to the end of ascertaining the truth and securing a just determination.” Fed. R. Evid. 102; see Banks v. Vilsack, 958 F.Supp.2d 78, 82 (D.D.C. 2013) (citing Fed. R. Evid. 103(d)). Moreover, “[a] pretrial ruling, if possible, may generally be the better practice, for it permits counsel to make the necessary strategic determinations.” United States v. Jackson, 627 F.2d 1198, 1209 (D.C. Cir. 1980).

In evaluating the admissibility of proffered evidence on a pretrial motion in limine the court must assess whether the evidence is relevant and, if so, whether it is admissible, pursuant to Federal Rules of Evidence 401, 402 and 403. “[T]he burden is on the introducing party to establish relevancy,” Dowling v. United States, 493 U.S. 342, 351 n. 3, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990), as well as admissibility. Even relevant evidence may be deemed inadmissible and subject to exclusion on multiple grounds, including that “its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. “Assessing the probative value of [the proffered evidence], and weighing any factors counseling against admissibility is a matter first for the district court’s sound judgment under Rules 401 and 403.” Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384, 128 S.Ct. 1140, 170 L.Ed.2d 1 (2008) (alteration in original) (quoting United States v. Abel, 469 U.S. 45, 54, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984)).

Depending upon the nature of the evidentiary issue presented in a pretrial motion in limine, the court must also assess whether a ruling is appropriate in advance of trial or, instead, should be deferred until trial “ ‘[when] decisions can be better informed by the context, foundation, and relevance of the contested evidence within the framework of the trial as a whole.’ ” Herbert v. Architect of the Capitol, 920 F.Supp.2d 33, 38 (D.D.C. 2013) (alteration in original) (quoting Casares v. Bernal, 790 F.Supp.2d 769, 775 (N.D. Ill. 2011)). The timing of a decision on the admissibility of contested evidence is a matter within a trial judge’s discretion. Banks, 958 F.Supp.2d at 81-82 (citing authorities); Barnes v. District of Columbia, 924 F.Supp.2d 74, 78-79 (D.D.C. 2013) (citing authorities).

III. DISCUSSION

The Court first addresses Ofc. Leone’s motion for summary judgment on the explicit issue remanded by the D.C. Circuit: whether he is entitled to qualified immunity for following his superior’s order to conduct the warrantless EOD search. Def.’s Mem. Supp. Summ. J. (“Def.’s MSJ”) at 5-8, ECF No. 131. Then the plaintiffs motion in limine and for partial summary judgment to exclude evidence, argument, or reference by defendants that the search of plaintiffs home was constitutional, Pl.’s Mem. Supp. PL’s Mot. at 1-2, is addressed, before turning finally to the defendants’ motions in limine seeking exclusion of argument or evidence relating to the plaintiffs arrest, incarceration, and prosecution in his underlying criminal proceedings.

A. Ofc. Leone’s Supplemental Motion for Summary Judgment

Ofc. Leone argues that he is entitled to qualified immunity because he relied on an order from Lt. Robert Glover. Def.’s MSJ at 5-6 (“Once Officer Leone arrived at the scene, based on the directive given to him by Lt. Glover, he joined other MPD officers already present in Plaintiffs apartment.”). He posits that his conduct must be measured not by the reasonableness, or lack thereof, of the EOD search but by the reasonableness of him following the order of his superior officer. Id. at 7 (framing “the relevant question [as] whether an officer in this Defendants’ position could have reasonably relied on the judgment of Lt. Glover” and urging that “[t]he facts here show such reasonable reliance”). Citing the “paramilitary” nature of the police department, Ofc. Leone argues he “was not in a position to disregard Lt. Glover’s order which he believed to be lawful.” Id.

At the outset, the factual record is murky regarding how Lt. Glover’s order was communicated to Ofc. Leone. Although Lt. Glover testified that he directed the EOD to enter the apartment, Ofc. Leone, who actually conducted the EOD search, could not recall “who exactly” the order “came down from.” Leone Dep. at 102:22-103:1. Instead, Ofc. Leone testified that he spoke with a colleague on the EOD, Officer William Powell, who “had spoken with higher ups” and “Officer Powell told [Leone] that he or [Leone] were supposed to go in and conduct a search.” Id. at 103:4-8. At oral argument on this motion, plaintiffs counsel indicated that he does not “have it in the record that [Leone] said Glover told him to go in.” Motions Hearing (May 17, 2017). At the same time, in his supplemental responses to plaintiffs first set of interrogatories, Ofc. Leone stated that “[o]nce on the scene, I was advised by Lt. Glover that they needed the residence cleared on an EOD aspect due to the fact that the Plaintiff had a military background.” Leone Mot. Summ. J., Ex 21, Leone Supp. Resp. Pi’s 1st Set Interrogs., at 3, ECF No.- 81-21. Thus, Ofc Leone has indicated both that he received the order from Lt. Glover and that he received the order from Ofc. Powell, who in turn received the order from unnamed superiors. In any event, no dispute exists that Lt. Glover gave the order for the EOD search and that Ofc. Leone executed that order, so any issue about precisely how that order was communicated to Ofc. Leone is immaterial and, therefore, does not require resolution at trial of a predicate factual issue before determination of whether qualified immunity applies.

The D.C. Circuit has expressly held that “the EOD search violated Corri-gan’s rights under the Fourth Amendment.” Corrigan, 841 F.3d at 1035. Just because a search is found to violate the Fourth Amendment does not mean civil liability automatically attaches, however. Instead, when an officer “engages in constitutionally deficient conduct,” qualified immunity provides a liability shield “if, in doing so, she did not violate ‘clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Brosseau v. Haugen, 543 U.S. 194, 205, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). “Qualified immunity ‘gives government officials breathing room to make reasonable but mistaken judgments’ and ‘protects all but the plainly incompetent or those who knowingly violate the law.’ ” Messerschmidt v. Millender, 565 U.S. 535, 546, 132 S.Ct. 1235, 182 L.Ed.2d 47 (2012) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 131 S.Ct. 2074, 2085, 179 L.Ed.2d 1149 (2011)). Consequently, whether qualified immunity applies “ ‘generally turns on the objective legal reasonableness of the [official’s] action, assessed in light of the legal rules that were clearly established at the time.’ ” Id. at 546, 132 S.Ct. 1235 (quoting Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). In other words, while an officer’s subjective state of mind is not relevant to the qualified immunity inquiry, the officer’s perceptions of the objective facts animating the challenged conduct are. See White v. Pauly, — U.S.-, 137 S.Ct. 548, 550, 196 L.Ed.2d 463 (2017) (instructing that in evaluating qualified immunity defense, “the Court considers only the facts that were knowable to the defendant officers”); Kingsley v. Hendrickson, —— U.S. -, 135 S.Ct. 2466, 2473, 192 L.Ed.2d 416 (2015) (noting that determination of objective reasonableness must be made “from the perspective of a reasonable officer on the scene, including what the officer knew at the time, not with the 20/20 vision of hindsight”) (internal quotations and citations omitted).

Mindful of these principles, Ofc. Leone’s reliance on Lt. Glover’s order for EOD to search the plaintiffs apartment is not dis-positive of whether Ofc. Leone is entitled to qualified immunity since the “objective reasonableness” of his actions must be assessed based on what was known to him at the time. Indeed, the D.C. Circuit has emphasized that it “has never held that qualified immunity permits an officer to escape liability for his unconstitutional conduct simply by invoking the defense that. he was ‘just following orders.’ ” Wesby v. District of Columbia, 765 F.3d 13, 29 (D.C. Cir. 2014); see also Messerschmidt, 565 U.S. at 554-55, 132 S.Ct. 1235 (2012) (approval of a warrant by a magistrate, along with review by an officers’ superior and deputy district attorney, was “pertinent” but not “dispositive” as to whether an officer could have reasonably believed that a warrant was supported by probable cause). Two D.C. Circuit decisions, Elkins v. District of Columbia and Wesby v. District of Columbia, instruct that an officer’s claimed entitlement to qualified immunity for following orders turns on a number of different factors. See, e.g., Elkins, 690 F.3d 554, 569 (D.C. Cir. 2012) (“Whether an official’s reliance [on her supervisor] is reasonable will always turn on several factors. ...”).

In Elkins, the D.C. Circuit held that an inspector from the Historic Preservation Office (“HPO”) was protected by qualified immunity for an unlawful seizure of the plaintiffs notebook. The inspector was just one among MPD officers, other HPO officials and personnel from the District of Columbia’s Department of Consumer and Regulatory Affairs (“DCRA”), who participated in the search of the plaintiffs home. Id. at 568. After the search began, the inspector was asked to come inside and photograph the interior of the home. Id. When the inspector noticed other officials searching through drawers, she asked her supervisor whether that was permitted. Id. The supervisor “conferred with an MPD officer within earshot” of the inspector, and the officer stated that “anything related to construction, including documents, could be seized.” Id. When the plaintiff produced the notebook, the inspector “took it from her.” Id. The D.C. Circuit concluded that although the seizure was unlawful because it was outside the scope of the warrant, id. at 564, the inspector was entitled to qualified immunity, noting that the inspector was a “junior member of the search team,” and she specifically asked her “superiors about the permissible scope of the search and relied upon the judgment of her supervisor and the police officer in charge,” id. at 568. Although none of these factors were “dispositive,” the D.C. Circuit held that “viewing them together,” the inspector’s actions, “though mistaken, were not unreasonable.” Id.

In contrast to Elkins, the D.C. Circuit found the officers involved in the Wesby case not to be entitled to qualified immunity. In Wesby, the MPD dispatched officers to investigate a complaint of “illegal activities taking place at a house in Washington, D.C.” Wesby, 765 F.3d at 17. Hearing loud music as they approached the house, the officers entered the home and saw acts consistent “with activity being conducted in strip clubs for profit.” Id. After interviewing everyone present in the house and learning that a woman referred to as “Peaches” gave permission to be in the house, the officers learned from speaking to Peaches via telephone, that she had told the individuals present the house that they could use it for a bachelor party but Peaches did not, in fact, have permission to use the house. Id. at 18. On that basis, “and notwithstanding the undisputed statements of both the guests and Peaches that she had given them permission to be at the house,” the supervising sergeant ordered the other officers to arrest everyone for unlawful entry. Id.

The D.C. Circuit first concluded that the officers did not. have probable cause to arrest the individuals for unlawful entry because “[a] reasonably prudent officer aware that the Plaintiffs gathered pursuant to an invitation from someone with apparent (if illusory) authority could not conclude that they had entered unlawfully.” Id. at 21. The D.C. Circuit then assessed whether the officers were entitled to qualified immunity for following the orders of a superior officer. Comparing the officers’ conduct to that of the housing inspector in Elkins, the D.C. Circuit concluded that the officers were not entitled to qualified immunity. Specifibally, the D.C. Circuit observed that the officers at issue in Wesby were “police officers with the independent authority to make arrests while on patrol,” and as such, “expected to know the limitations on their authority.” Wesby, 765 F.3d at 28. The Wesby court also found it significant that unlike Elkins, the officers in Wesby were “actively involved in surveying the scene and gathering information regarding the Plaintiffs’ knowledge and reason for being in the house” and “[b]oth officers ... were aware of the key uncontroverted facts in th[e] case” that undermined the legality of the conduct. Id. at 28-29. Despite this awareness, neither officer raised any question about the legality of the order to arrest before they carried out the order. Id. at 29 (noting that another factor in Elkins but missing in Wesby was that the officers in Wesby never “raised the question ... whether there was evidence that the Plaintiffs knew or should have known that their presence in the house was unauthorized”).

Elkins and Wesby illustrate that when determining whether an officer should be afforded qualified immunity for following orders, a fact-intensive and mul-ti-factored inquiry is required. At least four factors may be distilled from Elkins and Wesby as relevant to this inquiry: (1) whether it would have been clear to a reasonable officer that the act in question was in violation of the Fourth Amendment; (2) whether the officer made any effort to obtain clarity about the legality of the search; (3) the experience of the officer, whose conduct is at issue; and (4) the officer’s role in the investigation in terms of familiarity with the circumstances.

Ofc. Leone’s conduct differs somewhat from that of the inspector in Elkins and the officers in Wesby, and presents a close call. Application of the factors drawn from Elkins and Wesby, however, show that Ofc. Leone’s actions are closer to those of the officers in Wesby.

The first factor — whether it would have been clear to a reasonable officer that the act in question was in violation of the Fourth Amendment — is easily resolved by the D.C. Circuit’s holding in this case that “no reasonable officer could have concluded ... a basis existed for the second more intrusive search.” Corrigan, 841 F.3d at 1025. Indeed, the D.C. Circuit’s opinion is replete with references to the initiation and scope of the EOD search as “patently] unreasonable^]” Id. ht 1036; see also id. at 1025 (noting that the “scope of the second search far exceeded what [the community caretaking] exception would allow”); id. (“[N]o reasonable officer could have concluded ... a basis existed for the second more intrusive search[.]”); id. at 1029 (“At the very least, any search must be tailored to the exigent need, and the EOD’s broad and vigorous search was unreasonable because it was not [so] tailored.”) (internal quotation marks and citation omitted); id. at 1032 (“[T]he second warrantless break in of Corrigan’s home by the EOD was based on nothing more than a bare possibility, that he might have explosives that would ignite,. a possibility the evidence shows was based on runaway speculation.”) (internal quotation marks and citation omitted; alteration adopted); id. (“[T]he scope of the ‘exhaustive and intrusive’ search was unreasonably broad, with EOD officers rifling through every concealed space in Corrigan’s home and breaking open closed containers.”); id. (“Such a top-to-bottom search falls far outside the bounds of reasonableness given what the officers knew at the time and the Supreme Court’s clear admonition that warrantless searches pursuant to an exigent circumstances exception be strictly circumscribed by the exigencies which justify its initiation.”) (internal quotation marks and citation omitted). Indeed, the D.C. Court underscored that “[n]o precedent, even in the context of potentially explosive devices, supports the officers tearing open containers and prying open locked boxes when conducting a warrant-less search based on conjecture that hazardous substances might be present.” Id. This Court is bound by this conclusion of law and, thus, the first factor weighs heavily against the grant of qualified immunity to Ofc. Leone.

Second, Ofc. Leone made no apparent effort to clarify the legal basis for the search to assure himself that the search was permissible. To the contrary, as the plaintiff notes, Ofc. Leone testified that no one actually told him they had seen explosives in the apartment or heard that such incendiary material was present. Pl.’s SMF ¶ 181; Leone Dep. at 101:16-21. Further, Ofc. Leone also testified that he did not have probable cause to believe that there were explosive devices in the apartment. Leone Dep. at 101:11-15. Instead, Ofc. Leone was aware that other officers had been at the location for some time and that ERT’s sweep had already found that no person was present in the apartment. Leone Dep. at 20:9-12. He was merely advised that “due to the subject’s military background they believed that the [sic] possibility of explosives could be in the apartment.” Id. at 91:19-22; 101:22. Thus, Ofc. Leone lacked any information whatsoever that would have given him minimal comfort that the search was legally permissible and he made no effort to ask basic questions to determine whether probable cause or an exigency existed to conduct an extensive search of the apartment. In fact, Ofc. Leone testified that he did not do “anything to second guess the officers already on the scene” with respect to the “determination of probable cause.” Id. at 92:9-12. Ofc. Leone appears to have “blindly follow[ed] ... orders,” Wesby, 765 F.3d at 28, and proceeded to conduct “ ‘an exhaustive and intrusive search,’ ” Corrigan, 841 F.3d at 1036 (quoting Mincey v. Arizona, 437 U.S. 385, 389, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978)), without assuring himself of a minimal understanding of its legal basis. This factor, too, weighs against the granting of qualified immunity to Ofc. Leone.

Third, although Ofc. Leone was a “rookie tech,” see Leone Dep. at 103:11, like the officers involved in Wesby, he is a law enforcement officer who is expected to be trained in the limits of his authority, see Wesby, 765 F.3d at 28 (“Police officers charged with enforcing the criminal statutes are expected to know the limitations on their authority....”); see also Harlow v. Fitzgerald, 457 U.S. 800, 819, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (“Where an official could be expected to know that certain conduct would violate statutory or constitutional rights, he should be made to hesitate; and a person who suffers injury caused by such conduct may have a cause of action.”). As an EOD member, in particular, he is focused on dealing with explosives and hazardous materials, which as the D.C. Circuit pointed out, means that “the purpose of the EOD search cannot be characterized as altogether divorced from ‘the detection, investigation, or acquisition of evidence relating to’ a crime,” and “[biased on their own statements, the officers acted not solely to ensure public safety as community caretakers, but to investigate whether Corrigan had left explosive or hazardous materials set to explode— activity that would have been criminal.” Corrigan, 841 F.3d at 1034-35. Moreover, given the D.C. Circuit’s conclusion that the second search was “patently unreasonable[ ], both in terms of its scope and the lack of a reasonable basis for it,” Corrigan, 841 F.3d at 1036, “a reasonably competent officer faced with the information the officers had gathered in this case should have known that he lacked” a legal basis to perform the intrusive second search, Wesby, 765 F.3d at 28. This factor, albeit mixed, weighs against the granting of qualified immunity.

Finally, Ofc. Leone’s role in the investigation was limited but not insignificant. The defendants argue Ofc. Leone is unlike the officers in Wesby, who were denied qualified immunity, because unlike those officers, Ofc. Leone was not the “hub of the investigation.” Defs.’ Reply Supp. Defs.’ MSJ, at 3, EOF No. 135 (quoting Wesby, 765 F.3d at 29). The defendants note that the officers in Wesby “gathered evidence” and “actively participated in questioning the Plaintiffs and other key witnesses” before the arrest that was deemed unlawful. Id. (quoting Wesby, 765 F.3d at 29). To be sure, Ofc. Leone’s role is more limited than that of the officers in Wesby. That said, Ofc. Leone was responsible for conducting the entirety of the second EOD search, Leone Dep. at 19:7, a search which, according to the D.C. Circuit, “far exceeded the bounds of reasonableness,” Corrigan, 841 F.3d at1033. Indeed, aside from Lt. Glover, who ordered the EOD search, Ofc. Leone appears to be the only other individual who played any role in the search. Further, Ofc. Leone had sufficient familiarity with the circumstances of the ERT search to know that a sweep of the premises had already occurred, with no further exigency at stake. By the time he conducted his own search, Ofc. Leone had been informed that ERT had already been in the apartment and that officers had “ma[d]e sure there that there wasn’t any other people in the apartment.” Leone Dep. at 20:9-12. Thus, although Ofc. Leone arrived late on the scene and had the limited role of eliminating explosive or other hazardous materials from the apartment, he had been apprised of sufficient information undermining the legality of the warrantless search and nonetheless then conducted the extensive search found to be a clear violation of the Fourth Amendment by the D.C. Circuit.

In considering these factors, the Court is mindful of the Supreme Court’s recent decision in White v. Pauly, — U.S.-, 137 S.Ct. 548, 550, 196 L.Ed.2d 463 (2017), reversing the Tenth Circuit’s denial of qualified immunity on an excessive force claim to a police officer, who arrived late to an armed confrontation involving other officers and witnessed one of two armed men inside a house fire two shotgun blasts, prompting the officer to make a “quick choice to use deadly force,” by shooting and killing the man firing the shotgun, without giving a warning to drop his weapon. The Supreme Court concluded that in these particular “circumstances,” “[cjlearly established federal law does not prohibit a reasonable officer who arrives late to an ongoing police action ... from assuming that proper procedures ... have already been followed,” and that “[n]o settled Fourth Amendment principle requires that officer to second-guess the earlier steps already taken by his or her fellow officers.” Id. at 552. While Ofc. Leone was also “late to an ongoing police action,” and was not required “to second-guess the earlier steps taken” by fellow officers, the holding in White is expressly limited to the “unique set of facts and circumstances” presented in the case, which involved the imminent threat of deadly force, id. (emphasizing that clearly established law did not prohibit the officer’s acts in the particular “circumstances” and “instances like the one [the officer] confronted here”). Moreover, the White Court “reiterate[d] the longstanding principle” in qualified immunity cases that “clearly established law should not be defined at a high level of generality,” “must be ‘particularized’ to the facts of the case,” and must give “fair and clear warning” to officers that their conduct is unlawful under the Fourth Amendment. Id. The binding D.C. Circuit decision in this case that clearly established law rendered the EOD search “patently unreasonable,” based on the information available to the officers, including Ofc. Leone, plainly distinguishes White.

In sum, after weighing all four factors, Ofc. Leone has not shown that his reliance on the order of Lt. Glover was objectively reasonable under these circumstances to entitle him to qualified immunity based on following an order to conduct a warrant-less search. Accordingly, Ofc. Leone’s motion for summary judgment is denied.

B. The Plaintiffs Motion in limine and for Partial Summary Judgment

On May 12, 2017, the plaintiff filed a motion in limine to preclude defendants from arguing at trial that their search of the plaintiffs apartment was constitutional, or alternatively, for partial summary judgment on the remaining defendants’ liability, in light of the D.C. Circuit’s holding that the search “has now been held unconstitutional as a matter of law.” Pl.’s Mem. Supp. Mot. In Limine or Partial Summ. J., at 1 (“Pl.’s Mem.”), ECF No. 138-1. Indeed, the D.C. Circuit explicitly held that the MPD’s second search, by EOD, violated the plaintiffs Fourth Amendment .rights. Corrigan, 841 F.3d at 1039. As this issue is now law of the case, partial summary judgment is warranted and the defendants may not argue that the EOD search comported with the Fourth Amendment.

Under the mandate rule, this Court is bound by the holding of the D.C. Circuit. See Indep. Petroleum Ass’n of Am. v. Babbitt, 235 F.3d 588, 596-97 (D.C. Cir. 2001) (“Under the mandate rule, ‘an inferior court has no power or authority to deviate from the mandate issued by an appellate court.’ ”) (quoting Briggs v. Pa. R.R. Co., 334 U.S. 304, 306, 68 S.Ct. 1039, 92 L.Ed. 1403 (1948)). “The mandate rule is a ‘more powerful version’ of the law-of-the-case doctrine, which prevents courts from reconsidering issues that have already been decided in the same case.” Id. at 597 (citations omitted). “Unlike the doctrine of res judicata, however, the ‘law of the case’ doctrine does not seek to sweep under its coverage all possible issues arising out of the facts of the case.” U.S. on Behalf of Dep’t of Labor v. Ins. Co. of N. Am. (“ICNA”), 131 F.3d 1037, 1041 (D.C. Cir. 1997). “Rather, the scope of the ‘law of the case’ doctrine is limited to issues that were decided either explicitly or by necessary implication — ‘[t]he mere fact that [an issue] could have been decided is not sufficient to foreclose the issue on remand.’” Id. (quoting Maggard v. O’Connell, 703 F.2d 1284, 1289 (D.C. Cir. 1983)). “[I]t is entirely appropriate — and, in most cases in this circuit, necessary — to consult the opinion to interpret the mandate.” Id. at 1041 n.7; see also United States ex rel. Miller v. Bill Harbert Int’l Constr., Inc., 865 F.Supp.2d 1, 6 (D.D.C. 2011) (“When a district court is considering proceedings on remand, a circuit court’s opinion ‘may be consulted to ascertain what was intended by its mandate.’ ”) (quoting In re Sanford Fork & Tool Co., 160 U.S. 247, 256, 16 S.Ct. 291, 40 L.Ed. 414 (1895)).

Review of the D.C. Circuit’s opinion makes clear that the D.C. Circuit held that “the MPD’s second search, by the EOD, violated [the plaintiffs] Fourth Amendment rights.” Corrigan, 841 F.3d at 1039. The D.C. Circuit expressed this holding repeatedly and with unambiguous language. See id. at 1025 (“Because it was (and is) clearly established that law enforcement officers must have an objectively reasonable basis for believing an exigency justifies a warrantless search of a home, and because no reasonable officer could have concluded such a basis existed for the second more intrusive search, the officers were not entitled to qualified immunity across the board.”); id. at 1036 (“The unfocused nature of the EOD search underscores its patent unreasonableness, both in terms of its scope and the lack of a reasonable basis for it.”); id. (“[N]o reasonable officer could have believed that an exigency continued to exist as would justify a second warrantless break in of Corrigan’s home to search for explosives.”).

The defendants suggest that this interpretation of the D.C. Circuit’s decision is “too broad, and is inaccurate.” Defs.’ Opp’n Pl.’s Mot. In Limine or Partial Summ. J. (“Def.’s Opp’n”), at 8, ECF No. 145. Although acknowledging that the D.C. Circuit held that the second EOD search was unconstitutional, the defendants aver that in reaching this conclusion, the D.C. Circuit was viewing the issue through the lens of the defendants’ motion for summary judgment See Defs.’ Opp’n at 9. According to the defendants, “[wjhether the defendants were entitled to summary judgment — the issue in the appeal — is a different issue than whether the plaintiffs are entitled to summary judgment.” Id. At first blush, the defendants’ argument is plausible, but in the context of the D.C. Circuit’s opinion and mandate here, is not persuasive. When, for example, a Court of Appeals reverses a grant of summary judgment by finding genuine disputes as to material facts, remand to the district court effectively “restarts” the litigation in the district court. In Johnson v. District of Columbia, 528 F.3d 969 (D.C. Cir. 2008), for example, the D.C. Circuit concluded that granting summary judgment on the basis of qualified immunity was “premature” because there was a “genuine issue of material fact” that precluded summary judgment. Id. at 977-78. Although the district court’s finding of qualified immunity was reversed, the D.C. Circuit cautioned that the plaintiff was “not home free,” because “[h]is victory on appeal c[a]me[] from our having viewed the facts most favorably to him.” Id. at 978; see also DeGraff v. District of Columbia, 120 F.3d 298, 302 (D.C. Cir. 1997) (reversing district court’s grant of summary judgment in favor of district and officers on claims that these defendants violated the Fourth Amendment, concluding that insufficient facts were in the record to determine whether officers were entitled to qualified immunity); Edwards v. Shanley, 666 F.3d 1289, 1295 & n.3 (11th Cir. 2012) (reversing grant of summary judgment on qualified immunity grounds at the summary judgment stage in light of clear factual dispute between the parties whether the police dog bite lasted between five to seven minutes, as the plaintiff claimed, or fifteen to twenty seconds, as the officers claimed, but stressing that conclusion regarding violation of “clearly established federal law” was premised on accepting plaintiffs account and “that a jury would be free to make its own fact findings”); Rodriguez v. Passinault, 637 F.3d 675, 687 (6th Cir. 2011) (reversing district court’s grant of summary judgment on qualified immunity grounds after finding that a genuine issue of material fact existed requiring remand); Fils v. City of Aventura, 647 F.3d 1272, 1292 & n.24 (11th Cir. 2011) (affirming district court’s denial of motions for summary judgment based on qualified immunity, but noting that the conclusion was “driven by the stark contrast between [the plaintiffs] version of events and that of Defendants” and that “[a]t summary judgment, [the court had to] accept [the plaintiffs] version of events, and make all reasonable inferences in his favor.”); Howard v. Kansas City Police Department, 570 F.3d 984, 992 n.8, 997 (8th Cir. 2009) (affirming denial of summary judgment based on qualified immunity to two police officers accused of forcing a shirtless shooting victim onto hot asphalt street, resulting in second degree burns, due to “stark factual scenario posited by” plaintiff, whose version of events was accepted over the officers’ contrary version at summary judgment stage, and remanding for trial). As these cases illustrate, when reversal of grants of summary judgment (or affirmations of denials of summary judgment) to police officers asserting qualified immunity are premised on disputed material facts, the appellate decisions will not result in binding law of the case. Instead, on remand, the factfinder must determine the “actual” facts of the case in order for the Court to assess whether those facts establish immunity from suit precluding civil liability.

Not all mandates are so limited, however. The Court of Appeals may, in addition to reversing a grant of summary judgment, reach legal conclusions governing the continuing litigation on remand. The Court of Appeals might conclude that certain facts — irrespective of making any factual inferences in either party’s favor— establish liability, which conclusions of law may not be disregarded by the district court. See Babbitt, 235 F.3d at 596-97.

For example, in Guzman v. City of Chicago, a case from the Northern District of Illinois, police officers “stormed the apartment” of the plaintiff, “gestured for her to lie down on the floor and searched her apartment,” but unfortunately “searched the wrong apartment.” Guzman v. City of Chicago, Civil No. 05-6617, Dkt. No. 191 (“Guzman Summ. J. Order”) (N.D. Ill. Feb. 25, 2010). In the plaintiffs subsequent suit against the City of Chicago and two police officers under § 1983 for, among other things, illegal search and false arrest, the Seventh Circuit reversed the district court’s grant of summary judgment to the defendants on those two counts, concluding that “there is no question that the search was illegal.” Guzman v. City of Chicago, 565 F.3d 393, 399 (7th Cir. 2009). On remand, the plaintiff moved for partial summary judgment on her illegal search and false arrest claims based on the Seventh Circuit’s conclusion “that the search was illegal.” Guzman Summ. J. Order. Recognizing that the Seventh Circuit’s “conclusion that the search was illegal could not have been more explicit” and was law of the case, the district court granted partial summary judgment on liability and proceeded to trial on damages. Id.; see also Guzman v. City of Chicago (“Guzman II”), 689 F.3d 740, 742 (7th Cir. 2012) (explaining the procedural history of the case).

Likewise, here, the D.C. Circuit reversed the grant of summary judgment, finding that, based on existing precedent and the undisputed facts in the record, the second warrantless search by EOD was unconstitutional. Corrigan, 841 F.3d at 1032 (explaining that “binding precedents resolve[d] the Fourth Amendment issue”). To be sure, the D.C. Circuit references the summary judgment standard. See id. at 1029 (noting that appellate court “like the district court, [must] examine the facts in the record and all reasonable inferences derived therefrom in a light most favorable to the nonmoving party.” (citations and internal quotes omitted; alteration in original)); id. at 1035 (“Consequently, upon viewing the evidence in the light most favorable to Corrigan as the non-movant, we conclude that the officers fail to demonstrate that the extensive EOD search of Corrigan’s home was justified by any plausible exigency.” (citation omitted)). Nevertheless, the D.C. Circuit did not reach its holding on the Fourth Amendment violation by finding disputed material facts or colored by any inferences drawn in the light most favorable to the plaintiff. To the contrary, the D.C. Circuit concluded, based on the undisputed facts in the record, that the second EOD search was a violation of the Fourth Amendment as a matter of law. This legal determination is binding on this Court.

In particular, the D.C. Circuit rejected the justification of exigent circumstances for the EOD search, explaining first that, “the officers had no reasonable basis for believing that imminently dangerous ‘hazardous materials,’ like an explosive device, were in Corrigan’s home” and after the ERT search had been conducted, the officers knew that no one was inside the home. Corrigan, 841 F.3d at 1031. Thus, “the claimed basis for believing exigent circumstances existed had abated.” Id. Second, “the officers’ own delay during the hours-long barricade belie[d] the notion that another immediate break in was reasonable, much less urgently needed.” Id. at 1032. Third, the D.C. Circuit concluded that the “scope of the ‘exhaustive and intrusive’ search was unreasonably broad, with EOD officers rifling through every concealed space in [the plaintiffs] home and breaking open closed containers.” Id. The Circuit held that “[s]uch a top-to-bottom search falls far outside the bounds of reasonableness given what the officers knew at the time and the Supreme Court’s clear admonition that warrantless searches pursuant to an exigent circumstances exception be ‘strictly circumscribed by the exigencies which justify its initiation.’ ” Id. (quoting Mincey, 437 U.S. at 393, 98 S.Ct. 2408). For these reasons, the D.C. Circuit concluded that exigent circumstances no longer existed for the EOD search, which was also unreasonably broad. Accordingly, the D.C. Circuit held that “[c]learly established law foreclosed the broad and invasive search that was executed.” Id. at 1036. Unlike a reversal of a grant of summary judgment that is premised on identified disputed material facts, the D.C. Circuit’s reversal in this case was specifically based on a conclusion of law.

Despite this clear holding, the defendants enumerate a dozen facts which they contend warrant presentation to a jury to consider in evaluating the reasonableness of the ERT and EOD searches, including that: (1) the plaintiff “started the chain of events” by calling the National Suicide Hotline; (2) the National Suicide Hotline was “concerned about the exchange with” the plaintiff and called “the District and alerted its concern that Plaintiff ■ was suicidal”; (3) the District “was notified that Plaintiff had a gun and wants to kill himself’; (4) the hotline operator warned that the plaintiff had “severe PTSD symptoms,” with a loaded gun “actually on his lap”; (5) the plaintiff lied to the police about his whereabouts when he was first contacted by telephone and “when he left his apartment, locked it as if he had something to hide”; (6) Lt. Glover was told the plaintiff served in the U.S. Army and was an expert in improvised explosive devices; (7) Lt. Glover was told the plaintiffs apartment was serviced by a gas line; (8) Lt. Glover “could not confirm whether or not the reported gas leak was resolved because Plaintiff lived in a basement apartment where the gas could have been heavier”; (9) Lt. Glover “considered the current state of Plaintiffs mental health before he ordered [EOD] to search Plaintiffs apartment”; (10) defendant Glover “believed exigent circumstances still existed and directed members of the EOD to enter and search Plaintiffs apartment for explosives because of ‘the potential threat to the community at large, those that still remained on the scene, and anyone who would come after we departed the scene’ to encounter any hazardous materials or devices”; (11) “Officer Leone had less seniority than Officer William Powell and therefore he went into Plaintiffs apartment based on Defendant Glover’s call for EOD to search for explosives within the apartment”; and (12) the plaintiff was taken to a VA hospital and “admitted himself because he knew he needed treatment.” Defs.’ Opp’n at 9-11

The D.C. Circuit, however, considered most of’ these facts in finding the EOD search violative of the Fourth Amendment. As the D.C. Circuit observed: “The evidence shows only that the MPD officers were presented with a potentially suicidal military veteran who possessed ‘military items’ and had IED training, but no information about actual or reported threats by him to others, much less that he had IED materials at home or would commit suicide in a manner that threatened others.” Corrigan, 841 F.3d at 1036. Further, the D.C. Circuit found that “[njumerous witnesses, including Officer Leone who led the EOD search, confirmed that if there was ever a gas smell, it had dissipated well before either search,” noting that “[t]he gas to the row house had been turned off upon MPD’s arrival, and no one reported smelling gas in the hours leading up to the EOD search, or during the ERT ‘sweep.’ ” Id. at 1038. Finally, the D.C. Circuit noted that Ofc. Leone “had not even been told of any concern about gas when he entered Corri-gan’s home.” Id. (citing Leone Dep. 60:2-4). Thus, the facts the defendants deem relevant to the determination of whether the second search was constitutional were considered, but were found by the D.C. Circuit to be patently insufficient to justify the second “exhaustive and intrusive” search. As the Court explained, “[t]o reasonably conclude a second break in of Cor-rigan’s home was necessary to resolve an imminently dangerous situation, the officers would have had to engage in conjecture that [the plaintiff], in his suicidal state, had intentionally set and hidden an explosive device in his home, or that he possessed an explosive device that he stored so negligently as to pose an imminent threat.” Id. Concluding that the officers would have had to “overcome the inferential chasm between the circumstances presented to the officers and the explosive consequences that the officers might have feared,” the D.C. Circuit found that the officers “engaged in raw speculation unsupported by either precedent or the information they had.” Id.

In any event, the defendants fail to explain how these facts, even if viewed in a light most favorable to them, would lead to a different conclusion. Nor can they do so. The D.C. Circuit held that the undisputed facts in the record led to the conclusion that, as a matter of law, the second search by EOD violated the plaintiff’s Fourth Amendment rights. The defendants chose not to appeal this ruling and, thus, it is now law of the case binding on this Court. See Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 739 (D.C. Cir. 1995) (when the Court of Appeals “affirmatively decide[s an] issue, be it explicitly or by necessary implication,” that holding becomes law of the case).

This does not entirely resolve the best path forward. The plaintiff argues that “Defendants Glover and Leone are bound by the D.C. Circuit’s determination that Defendants violated Plaintiffs Fourth Amendment rights, and thus, the trial should proceed exclusively on the issue of damages.” Pl.’s Supp. Br. Supp. PL’s Opp’n Defs.’ Mot. in Limine (“PL’s Supp. Opp’n.”), at 2, ECF No. 144. This was the general approach taken by the Guzman district court. The Guzman district court, however, made errors that must be avoided, including by allowing the defendants to present “evidence and arguments tending to disclaim their liability” and “that the defendants’ entire theory of the case was that the search and seizure were legal and reasonable, and that if [the plaintiff] suffered harm it was caused by” other officers not named as defendants. Id. at 746. The plaintiff was ultimately awarded one dollar in damages. Id. at 742. On appeal, the Seventh Circuit held, among other things, that the “defendants’ theory of the ease, the evidence they introduced, and the liability instruction likely confused the jury.” Id.', id. at 747 (“the defense’s theory and evidence, coupled with the liability instruction, likely confused the jury by converting this damages-only trial into one about liability”). The Seventh Circuit explained that in a damages-only trial, only “three issues need to be resolved: what injuries did [the plaintiff] sustain, were they proximately caused by the unlawful search and seizure, and what amount of damages would reasonably and fairly compensate her for those injuries.” Id. at 745-46 (citing Herzog v. Vill. of Winnetka, 309 F.3d 1041, 1044 (7th Cir. 2002) (“[T]he ordinary rules of tort causation apply to constitutional tort suits.”); Henderson v. Sheahan, 196 F.3d 839, 848 (7th Cir. 1999) (“[A] plaintiff must demonstrate both that he has suffered an ‘actual’ present injury and that there is a causal connection between that injury and the deprivation of a constitutionally protected right caused by a defendant.”)). Thus, the Seventh Circuit explained that “the question should have been whether [the plaintiffs] injuries were proximately caused by the unlawful search and seizure.” Id. at 747-48 (citing Carey, 435 U.S. at 264, 98 S.Ct. 1042 (“[T]he basic purpose of a § 1983 damages award should be to compensate persons for injuries caused by the deprivation of constitutional rights.”); Herzog v. Vill. of Winnetka, 309 F.3d 1041, 1044 (7th Cir. 2002) (“[W]hen an illegal arrest sets off a chain of indignities ... [the victim] is entitled to obtain damages for these indignities ... [f]or they are foreseeable consequences of the illegal arrest, and the ordinary rules of tort causation apply to constitutional tort suits.”)).

This case differs from Guzman, where only a single unconstitutional search was at issue, in that the D.C. Circuit has held here that officers were entitled to qualified immunity from claims arising out of the first ERT search, whereas officers were not entitled to qualified immunity from claims arising out of the second EOD search. See Corrigan, 841 F.3d at 1035. As a result, in this case, determining whether the plaintiffs alleged injuries “were proximately caused by the unlawful search and seizure” might turn on which search, by ERT or EOD, proximately caused those injuries. For this reason, the Court will take certain steps to ensure that this remains a “damages-only trial” with respect to the EOD search, while permitting defendants to provide the full context of the two searches so that the jury can decide which injuries, if any, were proximately caused by the EOD search. First, because the plaintiff is correct that the law of the case precludes argument that the second search by EOD was constitutional, the plaintiff is entitled to an instruction from the Court that the second search by EOD was a violation of the plaintiffs Fourth Amendment rights. Second, because argument regarding the constitutionality of the EOD search is no longer “of consequence in determining the action,” such argument is irrelevant under Rule 401 of the Federal Rules of Evidence. Fed. R. Evid. 401. Third, because the jury will be charged with determining whether the plaintiffs injuries were proximately caused by the second search, defendants will not be precluded from presenting evidence regarding the circumstances of both the ERT and EOD searches in order to provide the jury with the full context of the incident for purposes of assessing damages. As the Supreme Court has made clear, “§ 1983 creates a species of tort liability,” Heck v. Humphrey, 512 U.S. 477, 483, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), and “the rules governing compensation for injuries caused by the deprivation of constitutional rights should be tailored to the interests protected by the particular right in question.” Carey, 435 U.S. at 258-59, 98 S.Ct. 1042; see also Hector v. Watt, 235 F.3d 154, 157 (3d Cir. 2000) (“Victims of unreasonable searches or seizures may recover damages directly related to the invasion of their privacy... .”). Accordingly, in order to give the jury the necessary context of the damages caused by the second unconstitutional search so that damages may be properly tailored to that particular violation of the plaintiffs constitutional rights, defendants are free to present evidence regarding the circumstances of both searches.

For these reasons, the plaintiffs motion for partial summary judgment as to the unconstitutionality of the second search by EOD is granted. Moreover, the defendants may not argue that the EOD search of the plaintiffs home was constitutional. The defendants may, however, present evidence regarding the full circumstances of the ERT and EOD searches so that the jury may accurately determine whether and which damages are proximately caused by the second EOD search.

C. The Defendants’ Motions In Li-mine

The defendants move in limine to exclude all evidence or argument regarding (1) the plaintiffs arrest and/or the alleged unlawfulness of his arrest; (2) that he was criminally prosecuted; (3) the disposition of those charges; and (4) damages which stem from the arrest, prosecution, or incarceration. See Defs.’ Mot. In Limine, ECF No. 104; Defs.’ Mot In Limine, ECF No. 105. The defendants further argue that the plaintiff should be precluded from introducing at trial tha