The opinion of the court was delivered by: Bucklo, District Judge.
MEMORANDUM OPINION AND ORDER
On August 25, 1998, Mokena Police Officer Christopher Carlson
("Carlson") arrested Michael Munley ("Munley") after receiving a
report of domestic battery. When Carlson arrived on the scene,
Munley's wife had lacerations on her head that required stitches.
Munley says that Carlson punched him in the face in the course of
the arrest and he is suing Carlson under 42 U.S.C. § 1983 for
excessive and unreasonable use of force in the course of the
arrest. Munley and Carlson have submitted motions in limine to
bar certain evidence.
Carlson brings four motions in limine, only two of which
require any substantive discussion. He asks me to bar all
questions relating to prior disciplinary actions against him.
Evidence of other unrelated disciplinary actions is not
admissible by either party to show that Carlson acted in
conformity with his character, Fed.R.Civ.P. 404(b), regardless of
whether Carlson "opens the door" to the use of such evidence.
Evidence of other acts is admissible only if it is not offered to
show action in conformity with character, but Munley has not
offered any alternative purposes for the evidence of other
disciplinary actions, so it is barred.
Carlson also asks me to exclude all evidence, argument or
comment about the existence of liability insurance. Evidence of
liability insurance is not relevant to the question of whether
Carlson used excessive force in Munley's arrest. The motion is
therefore granted. However, Carlson may not offer evidence,
testimony or argument about his financial circumstances or
inability to pay a judgment against him. Lawson v. Trowbridge,
153 F.3d 368, 379 (7th Cir. 1998). If Carlson does offer evidence
or argument that he is unable to personally satisfy a judgment
against him, I will allow Munley to introduce rebuttal evidence
of liability insurance. See id. at 380.
Munley agrees that he will not ask Michelle Rossi any questions
from which she might testify that she was the "target" of Mokena
police department actions. Accordingly, this motion is moot.
Munley is barred from introducing evidence that the Will County
State's Attorney dismissed the charges against him, but he may
testify that he was released from jail and that he was never
convicted of any charges arising out of this incident.
Munley asks me to bar questions that would elicit testimony
from his wife, Dawn Munley ("Mrs.Munley"), about what happened
before the police arrived at their home on the day of the arrest.
Mrs. Munley testified in her deposition that, on the day of the
arrest, she and Munley had been fighting, Munley pushed her, and
she hit her head on the table when she fell. She also testified
that, on the day of the arrest, she falsely told Carlson that she
hurt her head when Munley "head-butted" her, not when she fell.
Mrs. Munley has since told Gary Bush that she lied in her
deposition. Munley now seeks to bar any testimony from Mrs.
Munley that she has now changed her story and that Munley really
did "head-butt" her.
Gary Bush ("Bush") submitted an affidavit in this case in which
he said that Michelle Rossi ("Rossi"), one of Munley's witnesses,
told him that "she had entered into an agreement with Michael
Munley wherein she would support Michael Munley's story in
exchange for a percentage of any monetary amount which Michael
Munley may obtain through either settlement or judgment." (Bush
Aff. ¶ 3). Munley asks me to bar Bush from testifying about this
conversation on hearsay grounds. When a statement contains
multiple levels of hearsay, the entire statement is inadmissible
unless an exception or exclusion applies to each level.
The first statement in question is Munley's alleged statement
to Rossi that he would give Rossi a share of his recovery if she
supported his story. This is hearsay — an out of court statement
offered for the truth of the matter asserted — but it is
admissible under the exclusion for straight party admissions.
Fed.R.Evid. 801(d)(2)(A). The second statement in question is
Rossi's statement to Bush that Munley tried to bribe her. Munley
objects that this is hearsay to which no exception or exclusion
applies. Carlson argues, however, that Rossi's statement is
admissible as an adoptive admission of Munley.
Under Fed.R.Evid. 801(d)(2)(B), a statement is admissible
non-hearsay if "the party has manifested an adoption or belief in
its truth." Before admitting a statement as an adoptive
admission, I "must first find that sufficient foundational facts
have been introduced for the jury reasonably to conclude that the
defendant did actually hear, understand and accede to the
statement." United States v. Monks, 774 F.2d 945, 950 (9th Cir.
1985). Carlson offers testimony from Bush that, on September 11,
2000, after Bush submitted his affidavit on August 4, 2000,
Munley called Bush and asked him why he got involved in the case
and why he submitted his affidavit. Bush will also testify ...