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April 8, 2003


The opinion of the court was delivered by: Milton I. Shadur, Senior United States District Judge.


Following this Court's March 7, 2003 entry of the parties' jointly prepared Final Pretrial Order ("FPTO") that brought this action to the state of readiness for trial, each side proceeded to file memoranda in support of the motions in limine that they had telegraphed in the FPTO. With those memoranda having been responded to, the motions have become fully briefed, and this memorandum opinion and order addresses them.

Plaintiff's Motions

None of the three motions in limine filed by plaintiff Marcus Gregory ("Gregory") found their way into the docket, because all of the motions themselves were set up briefly within the FPTO. Gregory's later-filed supporting memorandum is Dkt. 82, while defendants' responsive memorandum is Dkt. 91.

Gregory first moves to exclude evidence as to his prior arrests or convictions, as to which defendants' portion of the FPTO seeks to designate parts of Gregory's deposition on that subject to be read into evidence. Arrests that have not led to convictions are classic candidates for exclusion under Fed.R.Evid. ("Evid.R.") 404(b). And as for Gregory's convictions, the most recent of those took place in 1987, and defendants have shown nothing to overcome their presumptive inadmissibility under Evid.R. 609(b).

Moreover, if this issue were to be examined through the combined lens of Evid.R. 404(b) and Evid.R. 403's balancing formula (in the latter respect, it must be noted that Evid.R. 609(b) reverses the balance scales in Gregory's favor on the old convictions), there is really no contest — exclusion is clearly called for. Accordingly the first motion is granted in its entirety.

Next Gregory seeks to exclude a clinical laboratory report that defendants had designated as a trial exhibit — a report that states only that cocaine and opiates were "detected" in Gregory's system when he was admitted to the hospital after the confrontation with police officers that has given rise to this lawsuit. As in their response to the first motion, here defendants again seek essentially to muddy Gregory up by portraying him as a bad man (something that is wholly at odds with the prohibition on propensity evidence that is taught by Evid.R. 404(b)). This time Defendants' Mem. 3 overstates (really misstates) the situation substantially:

The clinical laboratory report demonstrates that it is likely that the Plaintiff was under the influence of cocaine and opiates at the time of his arrest.
But the report says nothing of the sort, for it gives no indication either as to any likely degree of impairment or as to any information that might bear on that question.

This Court's treatment of the identical issue, under essentially identical circumstances, in Gwin v. Curry, No. 95 C 1438, 1996 W.L. 99898, at *1 (N.D. Ill. Feb. 29) might well have been written for this case by simply changing the parties' names and the date;

In todays climate, any evidence as to a litigant's use of drugs has an obvious potential for being extraordinarily prejudicial — for creating the prospect of deflecting the factfinders' attention from the matters that are really at issue in the case to everyone's universally-shared concerns as to the problems that drug usage is creating for our society. For that reason, where (as here) the subject matter of a trial does not itself concern controlled substances it is particularly appropriate to apply the principle announced in such cases as Jarrett v. United States, 822 F.2d 1438, 1446 (7th Cir. 1987):
A witness's use of drugs may not be used to attack his or her general credibility, but only his or her ability to perceive the underlying events and testify lucidly at the trial.
In this instance the jury will be called upon to decide which of Gwin and Curry is telling the truth about Gwin's claims that Curry used excessive force during the course of arresting Gwin on April 19, 1994 and that his arrest for the possession of cannabis was a false arrest. When after the arrest Gwin was taken to Westlake Hospital for treatment of a broken jaw, he tested positively for the presence of cocaine (and he apparently made statements to hospital personnel admitting to his prior usage of that controlled substance).
From the parties' submissions on the motion in limine, it appears that there is no evidence to suggest that Gwin was impaired at the time of the incident. It is also well known that the type of test that produced a positive reading at the Hospital (a urinalysis screen) is one that reflects the presence of drug residues, giving no indication as to the quantity of any controlled substance that may have been ingested or as to when that took place — and such a reading certainly does not show the existence of any impairment either then or now.
Under those circumstances, the jury would have to build an inference on an inference to find that the prior usage of cocaine indicated by the testing and by Gwin's statements was probative on an issue relevant to the jury's decision. Eased on what the parties have described in their respective memoranda, this Court determines that any possible probative value of the challenged evidence "is substantially outweighed by the danger of unfair prejudice" to Gwin as well as by the probable "confusion of the issues, or misleading the jury" (these quoted standards are of course drawn from Fed.R.Evid. 403). Accordingly Gwin's motion is granted.
Gregory's second motion is likewise granted.

Lastly, Gregory disputes defendants' designation, as a proposed exhibit, of a drug pipe that was found on Gregory's person after the officers seized him on the occasion in question. Once again that smacks of a bald effort to place Gregory in a bad light with evidence that does not bear directly on what is truly at issue.

As this Court understands the matter, Gregory is not in a position to contest the existence of probable cause to have effected his arrest and seizure — indeed, as the next section of this opinion reflects, defendants are successful in arguing that he cannot dispute his having resisted arrest in light of his guilty plea to that charge. And that being so, what defendants found on Gregory after the asserted imposition of excessive force that is the gravamen of his lawsuit is really not relevant. And this is so even apart from any need to balance under Evid.R. 403, as to which the potential for unfair prejudice would substantially outweigh any probative force (which, as just indicated, is really non-existent). This last motion by plaintiff is also granted.

Defendants' Motions

One puzzling aspect of defendants motions is that even though they were specifically numbered in the FPTO, one of defendants' supporting memoranda is unanchored to any of those numbers. Although the responsive memorandum by counsel for Gregory reasonably suggests that the motion should be denied for that reason alone (Gregory's Mem. 3 n. 4), this opinion will deal with it on the merits, identifying it only by its docket number. All other defense motions will be identified ...

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