Cooper v. Dailey

Robert M. Dow

Name of Assigned Judge

or Magistrate Judge

Robert M. Dow, Jr.

Sitting Judge if Other

than Assigned Judge

DOCKET ENTRY TEXT

Before the Court are Plaintiffs' and Defendants' motions in limine [232]. For the reasons below, Plaintiffs' motions are granted in part and denied in part and Defendants' motions are granted in part and denied in part.

[×] [For further details see text below.]

Docketing to mail notices.

1. Motion to bar argument of financial consideration

Defendants do not object to Plaintiffs' motion to bar argument regarding improper financial considerations. Therefore, Plaintiffs' motion in limine No. 1 is granted.

2. Motion to bar argument of contingency fee arrangement

Defendants do not object to Plaintiffs' motion to bar argument of the contingency fee arrangement between Plaintiffs and their counsel. Plaintiffs' motion in limine No. 2 therefore is granted.

3. Motion to bar evidence of financial hardship for Defendants

Plaintiffs' motion in limine No. 3 is granted without objection. Defendants are barred from introducing any evidence of financial hardship.

4. Motion to bar argument of what Chicago Police Officers "do and do not do"

Ruling on Plaintiffs' motion in limine No. 4 is reserved. While Defendants do not object to this motion, the scope of testimony and evidence that might lie within the Plaintiff's cryptic motion is unclear. The Court reminds the parties, however, that any evidence or argument that the parties may seek to elicit concerning what Chicago Police Officers "do" and "do not do" must be consistent with the rest of Court's rulings.

5. Motion to call non-party city employees as adverse witnesses

Plaintiffs' motion in limine No. 5 is granted. Defendants do not object to Plaintiffs' calling non-party city employees as adverse witnesses.

6. Motion to Introduce 404(b) Evidence

Plaintiffs' motion in limine No. 6 is granted in part and denied in part. Under Federal Rule of Evidence 404(b), "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." It may be admissible, however, to show motive, opportunity, intent, plan, knowledge, identity, or absence of mistake. Id. To determine admissibility under Rule 404(b), the court considers whether "(1) the evidence is directed toward establishing a matter in issue other than the defendant's propensity to commit the crime charged, (2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue, (3) the evidence is sufficient to support a jury finding that the defendant committed the similar act, and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice." United States v. Hicks, 635 F.3d 1063, 1069 (7th Cir. 2011); see also Treece v. Hochstetler, 213 F.3d 360, 363-64 (7th Cir. 2000).

Plaintiffs' first seek to introduce evidence of the findings set forth in the underlying complaint register ("CR") in which the police department conducted an internal investigation of the allegations at issue in this case. Defendants argue that under Seventh Circuit law, CRs relating to the events giving rise to this case are not admissible because evidence of violations of the general rules and policies is inadmissible. See Thompson v. City of Chicago, 472 F.3d 444, 453-456 (7th Cir. 2006). The Court agrees with Defendants—consistent with Thompson, the underlying CRs are inadmissible as evidence of their findings. The Court also concludes that allowing into evidence the findings of the CR in the underlying incident would be substantially more prejudicial than probative given the Seventh Circuit's unequivocal statement that violations of police regulations are "completely immaterial" to whether a federal constitutional violation has been committed by the officer in question. See also Section II.7 below. With that said, statements that Defendants made during the CR investigation pertaining to the incident giving rise to this case are not hearsay if offered as party opponent admissions under Federal Rule of Evidence 801(d)(2)(A). See, e.g., Rothwell v. City of Chicago, 2011 WL 5169419, at *3 (N.D. Ill. Oct. 31, 2011). Those statements—as well as statements made by others who may testify at trial—also constitute prior statements that may be used for impeachment if a witness's testimony at trial departs from what he or she said during the CR investigation. Id.

[FN1] As this Court previously has stated, because the jury "should not hear evidence that there was an [internal] investigation, the reasons for undertaking the investigation, or the findings and recommendations of the IPRA," yet the statements made during that investigation may be admissible as party opponent admissions or for
impeachment purposes, the parties must tread carefully in eliciting testimony in this area. "Any complications that may arise from Plaintiff's perceived need to reference prior statements, while keeping all reference to IPRA out of the case, may be averted by a stipulation - or, absent a stipulation, by carefully framing the questions to the witness in terms of generic references to prior statements made by the witness that were transcribed, without reference to the specific context in which the statements were made." Bruce v. City of Chicago, 2011 WL 3471074, at *6 (N.D. Ill. July 29, 2011).

Plaintiffs next seek to introduce evidence of any findings in any relevant CRs that have been produced or should have been produced. In regard to those CRs that have been produced to date, none involves an incident that is similar enough to the issues in this case to be relevant or probative of intent, plan, modus operandi, or absence of mistake and thus admissible under Rule 404(b).

However, as to the CR and pending investigation into Defendant Officer Dailey's false police call following his DUI, the Court reserves its ruling at this time. As of the time of the briefing on this motion, it was not clear whether Defendants had produced the underlying records despite the Court's prior rulings granting Plaintiffs' motions to compel. To the extent that Defendants have not done so on the basis of an asserted privilege, the best course may be to produce the CR for in camera review by this Court (or by Magistrate Judge Nolan) for a ruling. If Plaintiffs wish to proceed in that fashion, they may bring an appropriate motion, which will be given expedited consideration. The Court also notes that regardless of whether Plaintiffs are permitted to introduce the CR under Rule 404(b), Rule 608(b) may permit Plaintiffs to question Dailey about the circumstances relating to the alleged false police call for the purpose of attacking his character for truthfulness. See Bruce v. City of Chicago, 2011 WL 3471074, *7 (N.D. Ill. July 29, 2011); see also U.S. v. Manske, 186 F.3d 770, 775 (7th Cir. 1999) (discussing the scope of Rule 608(b)). Plaintiffs may not, however, use extrinsic evidence in connection with such an inquiry. Fed. R. Evid. 608(b). The Court reserves final ruling on the scope of any possible examination of Officer Dailey in regard to the 911 call pending further discussion of the yet-unproduced CR and the possibility alluded to by defense counsel that Dailey may invoke a Fifth Amendment privilege in regard to testimony about the pending felony charge that he faces in connection with that call.

1. Motion to Bar Non-Party Witnesses from the Court Room

Plaintiffs agree with Defendants' motion in limine No. 1, which therefore is granted.

2. Motion to Bar Argument that the Jury should Send the City a Message with a Verdict

Plaintiffs have no objection to Defendants' motion in limine No. 2, which therefore is granted.

3. Motion to Bar reference to lawsuits, criminal investigations, scandals or politics involving the city or its employees

The Court reserves ruling on Defendants' motion in limine No. 3 To the extent that Plaintiffs seek to reference or introduce evidence concerning other lawsuits, criminal investigations, scandals, or politics involving the City or its employees and those subjects are not addressed elsewhere in this opinion, Plaintiffs must raise the issue with the Court and opposing counsel with specificity outside the presence of the jury and with sufficient advance notice to permit argument and an opportunity for the Court to make a reasoned determination on the matter.

4. Motion to Bar Comments of the City's Failure to Call Witnesses or produce Evidence

Defendants' motion in limine No. 4 is granted in part. It would be improper for Plaintiffs to insinuate without evidentiary support that Defendants are purposefully attempting to hide evidence or a witness, particularly since Plaintiffs bear the burden of proving their case. However, the Court is not barring Plaintiffs from arguing that there are deficiencies in Defendants' case due to the absence of testimony by certain individuals or the absence of certain evidence. Rather, it is merely improper for Plaintiffs to insinuate that Defendants are purposefully hiding evidence. The Court will instruct the jury as to the Plaintiffs' burden of proof. See Bruce v. City of Chicago, 2011 WL 3471074, at *8 (N.D. Ill. Jul. 29, 2011).

5. Motion to Bar Reference to Settlement Negotiations

Plaintiffs have no objection to this motion and thus Defendants' motion in limine No. 5 is granted.

6. Motion to Bar Argument of Police Cover Up and "Code of Silence"

Defendants' motion in limine No. 6 is granted in part. Defendants argue that such evidence is akin to prior bad acts evidence and would violate Federal Rules of Evidence 401, 402, and 403. However, "[p]roof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness' testimony." United States v. Abel, 469 U.S. 45, 52 (1984). Indeed, "[a] party's and a witness's common group membership is probative of bias * * *." Townsend v. Benya, 287 F. Supp. 2d 868, 876 (N.D. Ill. 2003). Thus, to the extent that Plaintiff focuses on the officers and incidents involved in this case, Plaintiff may explore the possibility that the defense witnesses in this case are biased because of loyalty to one another. See, e.g., Saunders v. City of Chicago, 320 F. Supp. 2d 735, 740 (N.D. Ill. 2004); Galvan v. Norberg, 2006 WL 1343680, at *3 (N.D. Ill. May 10, 2006) (denying motion in limine seeking to bar "code of silence" evidence since "evidence or argument of this type can go to the issue of the bias or motivation of witnesses"). In addition, because Plaintiffs have claimed that Defendants were involved in a conspiracy with other non-Defendant members of their police team or unit, Plaintiffs are not prohibited from arguing that non-Defendant members of the team might be subject to the same "group membership" bias referenced above. Nevertheless, the Court agrees with Defendants that generalized allegations of police misconduct by officers other than the named Defendants (and their alleged co-conspirator team members) would be akin to impermissible propensity evidence. Maldonado v. Stinar, 2010 WL 3075680, at *4 (N.D. Ill. Aug. 5, 2010) (allowing evidence of bias among the particular officers involved in the incident at issue there, while excluding generalized evidence of a "code of silence" or "blue wall" (citing Christmas v. City of Chicago, 691 F. Supp. 2d 811, 819 (N.D. Ill. 2010) (same), and Moore v. City of Chicago, 2008 WL 4549137, at *6 (Apr. 15, 2008) (same))); see also Betts v. City of Chicago, 2011 WL 1837805, at *5 (N.D. Ill. May 13, 2011); Caldwell v. City of Chicago, 2010 WL 380696, at *3 (N.D. Ill. 2010) (barring plaintiff from presenting evidence showing police generally protect or cover up for each other and that there is a code of silence in the CPD). Plaintiffs have not presented expert testimony in support of any "code of silence" theory, at least at this stage of the case. Compare Obrycka, 2012 WL 601810, at *7. Defendants' sixth motion in limine is granted in part and denied in part as follows: (1) Plaintiff may present evidence and elicit testimony to probe whether the Defendant Officers (and any alleged co-conspirator team members) are biased in their testimony concerning the incidents at issue in this case out of loyalty to one another; (2) Plaintiff may not use the term "code of silence" as this term is unduly prejudicial and no supported by sufficient analysis (see Obrycka); and (3) Plaintiff may not introduce evidence that law enforcement officers typically adhere to a "code of silence" or seek to cover up misconduct in order to protect fellow officers.

7. Motion to Bar Reference to Violations of Police Department Rules, Policies and Regulations

Defendants' motion in limine No. 7 is granted in part. In Thompson v. City of Chicago, 472 F.3d 444, 455 (7th Cir. 2006), the Seventh Circuit held that the "violation of police regulations or even a state law is completely immaterial as to the question of whether a violation of the federal constitution has been established." Under Thompson, any attempt to elicit testimony concerning violations of general orders, rules or polices of the CPD as evidence of a federal constitutional violation appears to be forbidden under Rule 401. All of Plaintiffs' claims for trial are federal claims that arise under Section 1983, and thus are controlled by the rule articulated in Thompson. Seventh Circuit pattern jury instruction 7.04, referenced by Plaintiffs, was adopted long before Thompson became the law of this circuit. However, the Court repeats that statements that Defendants previously have made about the incident giving rise to this case may be admissible if offered as party opponent admissions under Federal Rule of Evidence 801(d)(2)(A). See, e.g., Rothwell v. City of Chicago, 2011 WL 5169419, at *3 (N.D. Ill. Oct. 31, 2011). Those statements—as well as statements made by others who may testify at trial—may be used for impeachment if a witness's testimony at trial departs from what he or she previously stated. Id.

8. Motion to Bar Inference and Argument that the Affidavit and Complaint for the Search Warrant was Invalid or Void at the Time of Issuance