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November 30, 2001


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


James Brandon, LaVelle Parker and Essie Nichols filed this action under 42 U.S.C. § 1983 and various Illinois laws for violations of their civil rights arising out of a botched drug bust on July 16, 1998. On August 3, 2001, I granted summary judgment for the defendants on all of Ms. Nichols' claims and on all of the federal claims against Chief Leach and the Village of Maywood. I granted summary judgment on some of Mr. Brandon's and Mr. Parker's claims; all that remains for trial is Mr. Brandon's state law claim for battery, Mr. Parker's state law claim for false imprisonment, and Mr. Parker's § 1983 claim against the individual defendants for arrest without probable cause. Brandon v. Village of Maywood, 157 F. Supp.2d 917 (N.D.Ill. 2001). The Village has participated in the filing of the pretrial order, but all of the claims against it were resolved on summary judgment, so it is no longer a party to this case. Therefore I construe all filings on behalf of "the defendants" as applying to Sergeant Robinson and Officers Woods, Fairley and Crowell only. The parties bring several pretrial motions, which I consider seriatim.

I. Plaintiffs' motions

Mr. Brandon and Mr. Parker bring eighteen motions in limine. The defendants do not object to numbers 8 (social security and medicare benefits), 9 (similar injuries from prior or subsequent incidents), 10 (same), or 16 (settlement negotiations), so they are granted as unopposed.

1. Defendants' Expert James Marsh

Defendants disclosed James Marsh as an expert on police procedures and practices. Many of his opinions were rendered moot by my decision on summary judgment (viz., the propriety of the use of force against Mr. Parker, the policy and practices of the Village, and the justification for the use of lethal force against Ms. Nichols' dog, Duke), and the Defendants agree, in general terms, not to elicit testimony from Mr. Marsh on a number of matters. For example, they agree not to ask Mr. Marsh to offer an opinion about any party's state of mind (e.g., why Ms. Nichols let her dog out). The plaintiffs argue that I should bar Mr. Marsh from testifying because his opinions are qualitatively indistinguishable from those of their expert, Anthony Bouza, whom I barred from testifying under Rule 702. See Minute Order of August 2, 2001. When an expert offers an opinion about the application of a legal standard, like "probable cause" or "reasonable suspicion," an expert's role is "limited to describing sound professional standards and identifying departures from them," see West v. Waymire, 114 F.3d 646, 652 (7th Cir. 1997), and I held that Mr. Bouza's opinions did not do this. Accordingly, I must examine the specific opinions of Mr. Marsh to determine whether that is so here.

After eliminating the improper legal conclusions, the defendants do not identify what Mr. Marsh's opinions will be. Instead, they promise only that "Marsh's opinions, as set forth in his report, will clearly assist the trier of fact in this case with understanding generally accepted police practices relative to investigations and arrests." Marsh's report, which is 22 pages long, consists of a summary of facts, a page-long list of judicial opinions and other materials consulted, and a summary of his opinions on various matters. As the defendants have already conceded, I instruct the jury on the law, and expert witnesses do not. See United States v. Sinclair, 74 F.3d 753, 757 n. 1 (7th Cir. 1996). The defendants' promises to comply with the strictures of Rule 702 do not assist me in performing my gatekeeping function, because I cannot discern what Mr. Marsh's opinions are after removing the admittedly improper legal conclusions. Nor is it fair to require the plaintiffs to guess at what Mr. Marsh's opinions at trial would be.

On the only issue on which the defendants identify what Mr. Marsh's trial testimony would be, he has not been shown to be qualified to testify. Mr. Marsh opines that Mr. Brandon's injuries were caused by bullets that ricocheted after the officers fired at Ms. Nichols' dog, not from a direct hit. The plaintiffs object that Mr. Marsh is not qualified to offer this testimony because he never visited the scene of the shooting and because he lacks the medical background to offer an opinion on the cause of Mr. Brandon's wounds. "Pursuant to Rule 702, a witness may offer an expert opinion only if he or she draws on some special `knowledge, skill, experience, training, or education' to formulate that opinion." Jones v. Lincoln Elec. Co., 188 F.3d 709, 723 (7th Cir. 1999). The defendants argue that Mr. Marsh is qualified to offer an opinion on the "bullet ricochet issue" because has been certified as a firearms instructor by the FBI and has lectured on weapon control. However nothing in his resume indicates that he has any training, experience, or specialized knowledge about ballistics, which is, relevantly, "the science of the motion of powder-propelled projectiles in flight." Webster's Third New Int'l Dictionary 167 (1981). The defendants have not identified anything in Mr. Marsh's background as a firearm instructor that would specifically qualify him to testify about the trajectory of a bullet and the type of wound it would inflict. Nor is his opinion saved by his reliance on a training manual about the science of bullet ricochets, or on Mr. Brandon's medical records. Those items may be "sufficient facts or data" under Rule 702 to support an opinion by an expert, but Mr. Marsh is no more qualified to interpret these documents or apply them to the facts of this case than a jury. For each of these reasons, the motion to exclude Mr. Marsh's testimony is granted.

2. Prior dog-bite incidents

The plaintiffs ask me to exclude any evidence that Ms. Nichols' dog, Duke, had bitten or attacked anyone before, and particularly evidence of an incident on June 18, 1997. The plaintiffs argue that any prior attacks are only relevant to the reasonableness of the officers' actions if the officers had knowledge of them at the time of the shooting incident that is the subject of this case. Officers Robinson and Crowell testified that they had no knowledge of the dog before showing up at Ms. Nichols' house. Pl.'s Ex. F and G. Officer Fairley testified that he was not afraid of the dog until he actually saw it, but he also testified that he was one of the responding officers to the 1997 attack, although he did not author the incident report. The evidence of the 1997 attack is relevant to Mr. Brandon's tort claim even according to the plaintiffs' theory. The motion to exclude this evidence is denied.

3. Alcohol Consumption by Mr. Brandon

The plaintiffs object to the admission of testimony that Mr. Brandon had consumed any alcoholic beverages on the day he was shot by the defendants. However, consumption of alcohol may be relevant to his memory and perception of events. See Cole v. Bertsch Vending Co., Inc., 766 F.2d 327, 334-35 (7th Cir. 1985) (Evidence of alcohol consumption prior to accident was relevant to witness's recollection of events.); People v. Di Maso, 100 Ill. App.3d 338, 55 Ill.Dec. 647, 426 N.E.2d 972, 975 (1981) (Evidence of alcohol consumption is admissible as probative of the witness's sensory capacity.). I deny the motion.

4. Policies and Procedures of the Maywood Police Department

Because I granted summary judgment for the Village, evidence of its policies or procedures is not relevant to any question of the Village's liability. The defendants agree, so the motion is granted. However, evidence of training that the defendants actually received prior to the events leading up to this case is relevant to the reasonableness of their actions.

5. Mr. Parker's criminal history

The plaintiffs move to exclude any evidence of Mr. Parker's prior arrests and convictions because it is not relevant to whether the officers had reasonable suspicion to detain him, but the defendants argue that "there are at least three permissible reasons to admit the evidence." First, they argue that prior arrests may be admissible as evidence of bias in § 1983 actions. See Pittsley v. Warish, 927 F.2d 3, 9-10 (1st Cir. 1991) (Evidence of arrest by same officer two weeks prior to arrest that was subject of § 1983 claim admissible under Fed.R.Evid. 404(b).). Here, Mr. Parker was arrested in January 1998 by the Cook County Sheriff's Police Department and convicted of possession of a controlled substance, and he was arrested by the Maywood Police Department in August 1997 and convicted of manufacture/delivery of cannabis. The Cook County arrest is clearly irrelevant to Mr. Parker's claims against the Maywood police officers in this case. Unlike Pittsley, there is no evidence that any of the officers who are defendants in this action had any involvement in the 1997 arrest by the Maywood Police Department. Although courts have admitted evidence of a prior arrest by the same police department, rather than the same police officers, see Heath v. Cast, 813 F.2d 254, 259 (9th Cir. 1987). any evidence of bias on this basis here is slight, and I conclude that the potential for unfair prejudice to Mr. Parker outweighs any probative value. See Lovergine v. Willerth, N. 84 C 7839, 1986 WL 10352, at *1 (N.D.Ill. Sept. 12, 1986).

Second, the defendants argue that Mr. Parker's two convictions are admissible under Fed.R.Evid. 609(a)(1), which says that, in a civil case, a prior conviction may be used to attack the credibility of a witness if the conviction is less than ten years old and the crime was punishable by death or more than one year in prison. Mr. Parkers prior convictions meet these requirements, but admission under Rule 609(a)(1) is subject to Rule 403, which excludes evidence when its potential for unfair prejudice substantially outweighs its probative value.*fn1 The defendants cite to an Illinois state case for the considerations of the prejudice/probativity balancing for criminal convictions, but I need not accept state interpretations of federal procedural rules. The defendants argue that Mr. Parker's prior convictions are probative because the jury has to assess his credibility. There is no evidence that the defendants were aware of Mr. Parker's convictions when they pursued and detained him, so they are not relevant to the question of reasonable suspicion. Rule 609 recognizes that any felony conviction bears on a witness s credibility, but some convictions are more probative than others. A conviction for comparatively minor drug offenses is less probative of truthfulness than one for perjury or fraud. On the other hand, the potential for prejudice to Mr. Parker is great. The main issue for both of his claims is whether the officers had reasonable suspicion to believe that he was involved in a drug transaction, and a jury might improperly consider evidence of his prior convictions for similar offenses as an indication that. the officers had a reason to suspect him of the same activity here. I find that the potential for unfair prejudice outweighs any value that the convictions would have as evidence of Mr. Parker's credibility.

Finally, the defendants argue that Mr. Parker's prior arrests are admissible as evidence of damages or causation. Other courts have held that, in a civil rights action where the plaintiff claimed emotional damages as a result of incarceration or excessive use of force, other arrests or periods of incarceration were probative of mental suffering. Peraza v. Delameter, 722 F.2d 1455, 1457 (9th Cir. 1984) (holding that subsequent encounters with police and troubles in school were relevant to claim for emotional damages in excessive force case); Bryan v. Jones, 519 F.2d 44, 46 (5th Cir. 1975) (holding that prior imprisonment was relevant to claim for trauma of incarceration). The court in Peraza did not explain the significance of subsequent encounters, which are anyhow not at issue here, and Bryan is distinguishable. There, the plaintiff had been incarcerated wrongfully for 36 days, and he claimed damages for emotional "suffering caused by the very fact of incarceration." 519 F.2d at 46. The court noted that "[e]ven a minimal sort of penal confinement may be debilitating to many. Under comparable conditions of confinement, however, this mental anguish may be much less for the recidivist than for one incarcerated for the first time." Id. Here, however, Mr. Parker's claim for mental anguish as a result of being restrained and unable to move to safety as four officers fired their guns at a dog is qualitatively different than a routine mistaken handcuffing. There ...

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