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January 7, 1999


The opinion of the court was delivered by: Shadur, Senior District Judge.


After the completion of discovery in this 42 U.S.C. § 1983 ("Section 1983") action brought by Thaddeus Edwards ("Edwards") against Chicago Housing Authority ("CHA") Police Officers Angela Thomas ("Thomas"), Arthur Lindsay ("Lindsay"), Dale Mitchell and David Lipinski (collectively "Officers"), counsel for the litigants jointly submitted a proposed final pretrial order ("FPTO") that was then entered by this Court. Thereafter the litigants tendered their respective motions in limine supported by legal memoranda, and each side then responded with a legal memorandum or memoranda in opposition to the other side's motions. This memorandum opinion and order addresses the motions seriatim.

Edwards' Motions in Limine Edwards' Prior Convictions (Dkt. No. 49)

Edwards brought a motion to exclude evidence relating to his prior convictions on two grounds: (1) as not probative of any fact and (2) even if probative, as nonetheless highly prejudicial and misleading to the jury. But the first branch of his argument — that such convictions have no probative value because the focus of a Section 1983 action is the reasonableness of the defendant's actions (E. 1st Br.2)*fn1 — is directly at odds with one of the Federal Rules of Evidence ("Rules"). Rule 609 embodies "[t]he proposition that felons perjure themselves more often than other, similarly situated witnesses" (Campbell v. Greer, 831 F.2d 700, 707 (7th Cir. 1987)),*fn2 and therefore expressly permits the introduction of a witness' prior felony convictions to impeach his or her testimony.

Of course Rule 609(a)(1) lends conceptual credence to the second branch of Edwards' motion: It requires the Court to evaluate the evidence under a Rule 403 weighing test to determine whether "its probative value is substantially outweighed by the danger of unfair prejudice." That weighing test is at the heart of the analysis here.

E. 1st Br. 3 framed the potential danger of introducing such evidence in an excessive force suit by pointing to language from Llaguno v. Mingey, 763 F.2d 1560, 1569 (7th Cir. 1985), also quoted in Geitz v. Lindsey, 893 F.2d 148, 151 (7th Cir. 1990):

  [C]ivil rights actions often pit unsympathetic
  plaintiffs-criminals, or members of the criminal
  class . . . against the guardians of the community's
  safety, yet serve an essential deterrent function.

That however is not an automatic bar — thus Geitz itself permitted the introduction of plaintiff's pending charges and prior unrelated convictions after weighing the evidence in Rule 403 terms.

Indeed, in every case Edwards cites involving the issue of prior convictions or misconduct, save Christmas v. Sanders, 759 F.2d 1284, 1293 (7th Cir. 1985),*fn3 at least some of the plaintiff's prior convictions or misconduct were admitted either for impeachment purposes or as substantive evidence bearing on the reasonableness of the officers' actions. It is useful to examine those cases briefly.

Wilson v. Groaning, 25 F.3d 581, 585-86 (7th Cir. 1994), another excessive force action, permitted the use of three out of plaintiff's six prior convictions for impeachment purposes. Wilson found that the admission of the convictions was not prejudicial because the operative facts occurred while plaintiff was in prison, so the jury would already know he had been convicted of something.

Crawford v. Edmonson, 764 F.2d 479, 482-85 (7th Cir. 1985) permitted evidence of plaintiffs' prior misconduct with guns to come in as probative of the reasonableness of defendant officer's actions in shooting the boys. Though the issue was viewed as debatable, Crawford found that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice where the jury already knew plaintiffs were involved in an armed robbery on the night of the incident.

Even though such a District Court opinion has no precedential force in any event, Charles v. Cotter, 867 F. Supp. 648, 655-56 (N.D.Ill. 1994) permitted the defendants to cross-examine plaintiff as to his three felony convictions that were less than ten years old, but under Rule 609(b) excluded evidence of three convictions that were more than ten years old. Charles, id. at 655-56 found the danger of undue prejudice was lessened by limiting the cross-examination to the crime charged, the date and the disposition.

Here the jury will already know that Edwards sold heroin to the undercover officers before the arrest that resulted in this excessive force claim.*fn4 Hence admitting evidence of his earlier narcotics convictions — one in 1992 for possession of a controlled substance and one in 1993 for possession of narcotics with intent to deliver — will not place a different sort of criminal activity before the jury, thus generating a danger of unfair prejudice that would substantially outweigh the evidence's probative value.*fn5 This case is similar to such cases as Wilson and Crawford in that respect. To minimize any potential danger of unfair prejudice, this Court will limit the cross-examination to an identification of each crime charged, the disposition date and the disposition (see Campbell, 831 F.2d at 707).

There is of course an added potential of such prejudice identified in Wilson, 25 F.3d at 585 (quoting the trial court):

  it might be prejudicial to overload the factfinder .
  . . [by] put[ting] in all the convictions because
  [the jury] might well determine that as a result of
  having that many convictions, that regardless of how
  the facts come out, that Wilson is a person not
  deserving of any relief.

That consideration calls for the exclusion of any evidence of Edwards' earlier crimes of a different nature: convictions stemming from his 1989 guilty plea for burglary or his 1989 guilty plea for possession of a stolen vehicle. Edwards' two most recent convictions suffice for potential impeachment of his credibility at the trial.

Drug Evidence (Dkt. No. 50)

Edwards' second motion in limine requests that Officers be barred (1) from presenting evidence of Edwards' ingestion of drugs prior to the incident, his sale of drugs to the Officers or his drug screen results and (2) from presenting any documents indicating that the substance he sold that day was cocaine or heroin. Those efforts at obtaining such a blanket exclusion fail.

First Edwards argues that his consumption of drugs before and during his arrest are not relevant because the focus of the case is on the reasonableness of the Officers' actions, not on Edwards' own conduct (E.2d Br.2). To that end Edwards cites Palmquist v. Selvik, 111 F.3d 1332, 1340 (7th Cir. 1997) for the proposition that his consumption of drugs before the police entered the premises should be excluded because it was outside of Officers' presence. But while Palmquist did uphold the exclusion of evidence that the plaintiff had a "death wish" that was unknown to the police, the Court of Appeals noted (id. at 1341-42, citing Saladino v. Winkler, 609 F.2d 1211, 1214 (7th Cir. 1979)) that the magistrate judge could have admitted the preseizure evidence of intoxication and possession of marijuana. Saladino, id. held that evidence of plaintiff's intoxication was admissible under Rule 403 because it:

  tends to make more probable that the plaintiff acted
  as the defendant contended he did or that plaintiff
  otherwise conducted himself in such a manner as to
  place ...

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