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September 19, 2003


The opinion of the court was delivered by: James Holderman, District Judge

On May 2, 2003, the jury returned a verdict in favor of plaintiff George Garcia ("Garcia") and against defendant City of Chicago ("City"), and awarded Garcia $1 million in compensatory damages.*fn1 In doing so, the jury found the elements of Garcia's Monell claim against the City to have been proven by a preponderance of the evidence, including the fact that on February 2, 2001, Garcia sustained injuries, which "were directly caused by defendant City of Chicago's custom and practice of not adequately investigating, disciplining, or prosecuting off-duty Chicago police officers who use excessive force against individuals" (Tr. 2192), when Garcia was attacked and beaten*fn2 by Chicago police officer defendant Zamir Oshana, who was off-duty at the time, and another assailant, [ Page 2]

who Garcia did not know at the time, but who was later identified as Sargon Hewiyou. The jury, in answering a special interrogatory, additionally found that defendant police officer Zamir Oshana acted under color of state law during his February 2, 2001 attack on Garcia. (Dkt. No. 253).

On May 16, 2003, defendant City filed this Motion for New Trial under Fed.R.Civ.P. 59 (hereinafter cited as "City's Mo."). The City has segmented its arguments to support its motion into the following three categories of claimed error:

"A. The Court Improperly Excluded Evidence" (City's Mo. p. 2-7);
"B. The Court Committed Error by Permitting Plaintiff to Introduce Evidence Uncovered Through Untimely, Overbroad Discovery" (City's Mo. p. 7-8);
"C. The Court Committed Error by Refusing the City's Instructions and Special Interrogatories and By Giving Legally Improper Instructions" (City's Mo. p. 8-10).
For the following reasons, the City's Motion for New Trial is denied.

I. Summary of the Key Facts Proven at Trial Regarding the City's Liability

In January 2000, over a year before Garcia was beaten, Chicago Alderman William M. Beavers of the City's 7th Ward, in his capacity as Chairman of the Committee on Police and Fire of the Chicago City Council, notified all members of the Chicago City Council by means of an official resolution (hereinafter "Beavers Resolution") submitted to the City Council (Pl.'s City Council Ex, Nos. 1 and 3) that there existed, among other difficulties, in the Chicago Police Department ("CPD"):

an environment where police officers who do not carry out their responsibilities in a professional manner have ample reason to believe that they will not be held accountable even in instances of egregious misconduct. (Pl. City Council Ex. No. 1). [ Page 3]
Although Alderman Beavers set a hearing with the City Council Committee on Police and Fire as to the Beavers Resolution for Thursday, January 20, 2000 (Pl.'s City Council Ex. No. 2), no evidence of any further action by that Committee or the City Council on the Beavers Resolution during the year 2000 or in the month of 2001 before Oshana and Hewiyou attacked Garcia, or at any other relevant time, was presented. The evidence did establish that defendant police officer Oshana believed, consistent with the findings in the Beavers Resolution, that neither he nor his co-assailant, Hewiyou, would be held accountable for the egregious misconduct of brutally attacking Garcia. Oshana told Hewiyou before the attack that the police would "cover up" the attack on Garcia. (Tr. 1033).

The "environment" described in the Beavers Resolution, which addressed both on-duty and off-duty police officers misconduct, was proven to be a widespread custom and practice within the CPD regarding off-duty police misconduct. Exhibits received in evidence called the complaint registration ("CR") files (Def.'s Exs. 1 through 72) documented citizens' complaints about and the CPD investigations into misconduct by off-duty police officers, for the period August 1, 1999 through June 2001. (Agreed Stipulation No. 2). The evidence established that during the relevant time, the pattern and practice within the CPD in handling allegations of off-duty police officer violence was defective and insufficient in the following ways: investigations were incomplete, inconsistent, delayed, and slanted in favor of the officers; investigative leads were not pursued; incidents were covered-up; evidence was destroyed; officers were not arrested; and private citizens were discouraged from filing complaints about police officer misconduct. (Tr. 445-500, 558-89, 1996-97; Def.'s Exs. 1-72). There was evidence that the CPD protocol was to treat police officers more favorably than other citizens when investigating and prosecuting police officers misconduct. [ Page 4]

(Tr. 500-12, 558-89, 2002-03; Pl.'s Trial Ex. 21). Only one out of all accused officers in the CR files received in evidence as Defendant's Exhibits 1 through 72 was arrested (Tr. 506, 558-89), only two of the 71 files of off-duty use of force complaints were referred for possible prosecution (Agreed Stipulation No. 4) (Tr. 756), and there is no evidence of the City subjecting any accused off-duty officers to discipline. (Tr. 1993-94). At trial, certain citizens identified in the CR files who had been harmed by off-duty City police officers during the relevant period testified about their personal experiences and corroborated the custom and practice alleged by the plaintiff, (Tr. 644-670).

The evidence further established that Sergeant Fivelson, the CPD investigator assigned to the Garcia complaint, carried out his responsibilities to investigate in a far from vigorous manner. It was clear that Fivelson did only the minimum necessary to give the appearance of adequacy in his approach to the investigation. The evidence further established that if Garcia had not filed a lawsuit and had not been represented by counsel who pursued Garcia's case zealously, Fivelson would not have taken the steps he did take. Were it not for plaintiff's counsel's efforts, the truth about Oshana's and Hewiyou's attack on Garcia would not have been revealed, and Oshana's pre-attack assurance to Hewiyou that the police will cover-up the attack would have come true. The inadequacy of Fivelson's investigation, Fivelson's improper delay in providing to plaintiff's counsel the information Fivelson did uncover, and Fivelson's demeanor on the witness stand at the trial also corroborated plaintiff's counsel's position that the City had a custom and practice of not adequately investigating, disciplinary, or prosecuting misconduct by off-duty police officers.

Additionally, plaintiff's expert, Dennis Waller, testified that the totality of the problems evident in the CR files encouraged off-duty police officers to believe that they could use violence with impunity and that their misconduct would be covered up so they would suffer no penalties or [ Page 5]

repercussions. (Tr. 588). Even the City's expert, Charles Gruber, testified that the totality of the CPD problems set forth in the Beavers Resolution, and in the other evidence Gruber reviewed, "might encourage someone in officer Oshana's shoes to . . . think he could get away with what he did to George Garcia." (Tr. 2011).

II. This Court's Evidentiary Rulings at Trial

This court, in making its evidentiary rulings at the trial, was mindful that during the pretrial phase of this case Magistrate Judge Denlow had determined that the appropriate time period for discovery on plaintiff's Monell claim against the City was January 1, 1999 through June 30, 2001 from which the City had to produce excessive force complaints in the 17th District. (Dkt. No. 47).*fn3 The City did not appeal that determination by Judge Denlow to this court or voice any disapproval of it. So, this court considered that established time-frame to be the relevant period about which the parties could offer evidence on the issue of the existence or non-existence of the custom and practice which plaintiff alleged caused his injuries on February 2, 2001. To have ...

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