The opinion of the court was delivered by: John A. Gorman United States Magistrate Judge
The parties have consented to have this case heard to judgment by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and the District Judge has referred the case to me. Now before the court are the motions for summary judgment filed by the City of Moline and its police officers (#214); the Village of Milan and its police officers (#212) and the Zemo's (#216). Also before the court is the Motion to Strike (#224) filed by defendant Village of Milan and its employees. The motions are fully briefed and I have carefully considered the arguments and evidence. For the following reasons, the motion to strike (#224) is granted in part and denied in part and all 3 motions for summary judgment (#212, 214, 216) are granted.
In this motion, defendants Village of Milan and its employees move to strike portions of plaintiffs' response to the motions for summary judgment. The motion attacks both the response itself and certain portions of the evidence that is submitted in support of the response. It is granted in part and denied in part, as follows.
The first general argument made by Defendants is that certain portions of the evidence submitted in support of the response are hearsay. Fed.R.Evid. 801 defines hearsay as a "statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed.R.Evid. 802 makes hearsay statements inadmissible. Fed.R.Evid. 803 excludes certain types of statements from the definition of hearsay. Hearsay, as is the case with other inadmissible evidence, cannot be used to support or resist a motion for summary judgment. Fed.R.Civ.P. 56(e). See, also, Davis v. G.N. Mortg. Corp., 396 F.3d 869, 874 (7th Cir. 2005).
The second argument raised by Defendants is that certain statements contained in the affidavits and/or arguments of the Plaintiffs are not based on personal knowledge or are speculation about matters remote from first-hand experience. Such statements would not be properly contained in affidavits under Fed.R.Civ.P. 56(e), which expressly provides that affidavits "shall be made on personal knowledge... setting forth such facts as would be admissible in evidence, and ... showing affirmatively that the affiant is competent to testify to the matters stated therein." See, Visser v. Packer Eng'g Assocs., Inc., 924 F.2d 655, 659 (7th Cir. 1991)(inferences and opinions must be grounded in first hand experience); Toro Co. v. Krouse, Kern & Co., 827 F.2d 155, 162-63 (7th Cir. 1987)(affidavits may not contain statements based on information and belief).
Some of the challenged statements are racial epithets hurled at the Jacksons by non-parties, as recounted by the Jacksons. The statements are offered by the Jacksons to show that the statements were made, not for the truth of what was said. Such statements do not fall within the definition of hearsay, so testimony about overtly racist statements actually heard by one of the Jacksons is admissible. See, Anderson v. U.S., 417 U.S. 211, 219-20 (1974); Emich Motors Corp. v. General Motors Corp., 181 F.2d 70 (7th Cir. 1950), rev'd on other grounds, 340 U.S. 558.
However, other statements are more problematic. For example, in Noah Jackson's affidavit, he affirms that, after he saw and heard Jared Zemo and two other boys yelling racial epithets, one of the two other boys told him not to be concerned with Jared Zemo because Jared was being "stupid and crazy." According to Plaintiffs, that statement is not offered for its truth but rather is offered as "context," to explain why Noah did what he did on that evening. All relevant evidence provides context, U.S. v. Bowie, 232 F.3d 923, 928-29, (D.C. Cir. 2000) however, and "context" is not one of the exceptions to hearsay. See, U.S. v. Stover, 329 F.3d 859, 870 (D.C.Cir. 2003). Moreover, this particular statement is wholly unrelated to why Noah's mother called the police, so even if it were not hearsay, it would be inadmissible as irrelevant.
Similarly, Noah's affidavit recounts what one of the other boys said to the Jacksons -that Noah had not swerved his vehicle at Jared Zemo - and later to police Officer Holt. Plaintiffs assert that the statement to them was offered to show why they called the police and that the statement to Holt is offered to "prove selective enforcement." If this witness had testified himself about what he told the Jacksons or Holt, then that testimony would not be hearsay. But when the Jacksons repeat that statement, as they do here, and when the statement is meaningless if it is not being offered for its truth, then the statement is hearsay.
These statements, when offered by anyone other than the declarant, are inadmissible hearsay.
The same is true for Noah's statement that he was told by "civilian kids" that he was going to be arrested later. Plaintiffs assert that the statement is offered to show that there was a conspiracy and/or that the police were informing others in the community that Noah was going to be arrested. This is certainly a "statement" within the meaning of Fed.R.Evid. 801 - the declarants intended to convey information. See, Superior Fireplace Co. v. Majestic Prods. Co., 270 F.3d 1358, 1365-66 (Fed.Cir. 2001). This "statement" goes nowhere to prove conspiracy or misconduct unless it is being offered for its truth. This statement, when offered by the Jackson's rather than the declarant, is inadmissible hearsay.
Defendants also challenge a statement in Noah's affidavit because Noah lacks the requisite personal knowledge. See, Fed.R.Civ.P. 56. The statement is that Holt had a ticket written out before he arrived at the Jackson home. Noah has not explained how he knew this, and his statement at the end of the affidavit is not conclusive - all that says is that the basis of his affidavit is "knowledge, information and belief". But it is not impossible that Noah would have been able to tell that the ticket was completed before Holt arrived. I will not strike that paragraph in the affidavit.
Accordingly, the motion to strike portions of Noah's affidavit (Exh. 4 to Plaintiff's Response to Summary Judgment) is granted in part and the following paragraphs are stricken: paragraphs 6, 14 and 20 in their entirety, and paragraph 12 as to what Harmon said.
Next Defendants challenge certain statements contained in Nicholas Jackson's affidavit. The first is Nicholas' statement that a student at school had directed a racial epithet at another student. The second is Nicholas' summary of that student's testimony at Nicholas' trial, offered as explanation for why charges of battery against Noah were dropped. Like the statements above, neither of these statements has been offered for its truth; they are therefore not hearsay.
The second statement in Nicholas' affidavit is Nicholas' recall of what Jared Zemo said during the rock-throwing incident. Defendants have misunderstood this paragraph of the affidavit. This statement, too is not offered for its truth, and it is therefore not hearsay.
Defendants next challenge a statement contained in the affidavit of Alexandria Jackson, that Jared Zemo "pointed to something on his arm that Jared claimed meant, 'niggers die.' " Conduct meant to convey information or make an assertion is considered to be a statement under Rule 801. See, U.S. v. Abou-Saada, 785 F.2d 1,8 (1st Cir. 1986). But like the statements discussed above, this statement is offered not for its truth but rather as evidence of racial harassment by Jared Zemo. It is therefore not hearsay and it is admissible for that purpose.
Next Defendants assert that two statements contained in Peggy Jackson's affidavit are hearsay. The first is a statement that Nicholas told police who threw rocks at him. The evidence before the court demonstrates that Peggy was not present when Nicholas made this statement, so she lacks the requisite personal knowledge. Moreover, even if she had been present, she was not the declarant and the statement is meaningless unless true. This statement is inadmissible hearsay.
The second statement is Peggy Jackson's recall of what some "other witnesses" told Moline Police Officer McAtee about the events leading up to Alexandria's altercation with another girl. Plaintiffs assert that this statement is offered not for its truth but to show a "pattern of non-enforcement by the police when they had knowledge of independent witnesses corroborating Jackson's version of events." But it is offered for its truth - if what the witnesses said was not true, then the statement is not evidence of non-enforcement. This is hearsay when recounted by Mrs. Jackson and it is therefore inadmissible.
Defendants also challenge two statements in Mrs. Jackson's affidavit on the grounds that she lacked personal knowledge of the information in those statements. It is very clear that Defendants are correct that she was not personally present at these incidents; she is basing her statements on what she was told by others. These two statements are therefore stricken.
Accordingly, the motion to strike portions of Peggy Jackson's affidavit (Exh. 8 to Plaintiff's Response to Summary Judgment) is granted in part and the following paragraphs are stricken from her affidavit: paragraphs 2 and 7 in their entirety; and paragraph 14 as to what the "other witnesses" told Officer McAtee.
Defendants next argue that two statements contained in the affidavit of Philip Jackson Sr. are inadmissible hearsay. These statements both have to do with racial epithets he heard yelled outside the Jackson home in Milan. As discussed above, these are not hearsay.
Finally the Defendants point to a large number of speculative statements contained in the Jacksons' statement of additional material facts, such as whether the police "properly investigated" an incident, whether they did "nothing" after an incident. Such statements are not based on first hand knowledge by the Jacksons and they may not testify about such matters.
Similarly, their conclusions - for example, that the police "selectively enforced" the law or that the police would do nothing to help if a victim were Black, or that a certain person is a racist or a bigot - are not facts. The Jacksons can certainly testify about their experiences that lead them to draw such conclusions, but they may not establish by affidavit a conclusion that can only be drawn by the fact-finder. These matters are stricken from the Jacksons' responsive pleading and have not been considered by the Court in this Order.
Finally, Defendants point to a number of assertions in the Plaintiffs' Introduction section and argument section of their Response that are unsupported by citations to the record. The Court has not relied on any asserted fact unless the fact is (1) accompanied by a citation to the record; and (2) supported by the record cited. As stated above, the motion to strike is granted in part and denied in part. Moreover, to the extent that factual or legal arguments contained in Plaintiffs' response to the summary judgment motion rely on any of this stricken material or rely on speculative statements of fact or improper conclusions, as discussed above, or rely on statements of fact not supported by citation to the record, those arguments are also stricken and have not been considered by the Court in this Order.
Plaintiffs are an African-American family. Peggy and Phillip Sr. are married. Their four children are Phillip Jr., Alexandria, Noah, and Nicholas.
The defendants in this case are the City of Moline, its Police Chief Steve Etheridge, Police Captain Kenneth Hanger, and Police Officer John McAtee [hereinafter referred to where necessary as the "Moline defendants"]; and the Village of Milan, its Police Chief Dennis Baraks, Police Captain Mark Beckwith, Police Sergeant Scott Holt, and Police Officer Richard Ward [hereinafter referred to where necessary as the "Milan defendants"].
The following factual recitation is taken from the parties' statements of undisputed facts, the responses and replies thereto, and the evidentiary support therefor.
While the Jacksons resided in Moline, they had problems with vandalism: slashing of the tires on their car and motorcycle, scratching of their vehicles, trash being thrown on their property, and other property damage. The Jacksons believed these problems were motived at least in part by racism on the parts of certain of their neighbors. Police Captain Kenneth Hanger met several times with Mrs. Jackson with respect to the vandalism claims. Mrs. Jackson provided the names of two people she suspected, and the police followed up and questioned them. The Jackson's filed a complaint about the vandalism with the NAACP in 1998 against the City of Moline; the NAACP concluded that the Moline Police Department was doing their job properly.
On October 15, 1998, the Jacksons' 13 year old daughter Alexandria was involved in a dispute with another juvenile, Bryck Campos. According to Alexandria and her brother Nicholas, Bryck threw a small piece of wood (1/4 inch) at Nicholas, who was riding his bicycle. The wood hit Nicholas on his glasses. Alexandria went home and told her mother. Later Nicholas came home and said Bryck was back in the park. Mrs. Jackson sent Alexandria back to the park to see if Bryck was still there. Alexandria took Mr. Jackson's mace from his dresser and went to the park. According to an eyewitness (unrelated to either family), Alexandria walked up to Bryck, asked him "why did you throw a rock at my brother," and then sprayed him in the face with mace. Neither Alexandria nor Nicholas ever denied that she had sprayed Bryck. Alexandria was charged by Moline Police Detective Scott Williams with violation of a municipal aggravated battery ordinance; she was not taken into custody. The arresting officer's report shows that he interviewed Bryck, Alexandria, the eye witness, Nicholas Jackson, and Peggy Jackson. The report also shows the officer's intent to request a Delinquency Petition from Juvenile Court Services.
On another occasion, Alexandria was charged with violation of the municipal battery ordinance after she punched a girl and shoved her to the ground for spitting at her. There is a dispute about whether there were witnesses to this event. McAtee says Alexandria never mentioned any witnesses; she claims that she did. McAtee wrote Alexandria a citation for an ordinance violation and gave it to her. She was not taken into custody.
Alexandria had other involvement with local law enforcement. She was caught shoplifting at Kohls; and was sentenced to serving community service time. She was involved in making harassing phone calls to another student; the police investigated and the calls ended without charges.
Another Jackson child, Nicholas, was a student at Wilson Middle School. There he had a reputation for being a bully. The City of Moline police officer assigned to that school, Alan Friedland, was aware that Nicholas had been accused of harassing and bullying Frank, a student in the learning disabled program. Friedland had at least two meetings with the boys following complaints from the boys' parents about the bullying by Nicholas. On October 1, 2001, Frank reported to the principal that Nicholas had hit him in the back of the head while they were in a stairwell. Frank had then turned around and took a swing at Nicholas. Witnesses to the fight between Nicholas and Frank reported that the fight took place in a stairwell and that Nicholas had both hands around Frank's neck. Frank received minor abrasions and scratches around the neck area, still evidenced several hours later. The fight occurred after Nicholas had earlier threatened to "kick his ass after school" and after one of the boys' teachers reported that Nicholas was taunting Frank in her class.
The principal called Mrs. Jackson to the school, and Friedland interviewed Nicholas in the presence of his mother and the principal. Nicholas claimed that another student had hit Frank and that Frank thought it was him and had then tried to hit him. Nicholas said that he was justified in hitting anyone who threw a punch at him first.
Friedland also interviewed another student who reported that Nicholas had told him to punch Frank from behind, so that Frank would think Nicholas did it. The student hit Frank with an open hand on the back of his head, claiming that he did what Nicholas asked because if he didn't Nicholas would "beat me down." Friedland also spoke to several other witnesses to the fight who all said that Nicholas was the aggressor.
Detective Friedland found Frank and the other witnesses more credible than Nicholas, and he concluded that Nicholas had provoked a fight with Frank by directing another student to hit Frank in a way that would make Frank think it was Nicholas who had done it. Then, when Frank reacted, Nicholas would feel justified in battering Frank. Friedland therefore cited Nicholas for violating a municipal battery ordinance. After the ticket was issued, the principal told Friedland that Nicholas had taped a "conversation" he had with Frank and that Frank admitted that he had hit Nicholas. Mrs. Jackson had called the principal about the tape and had said that if he didn't do something about the ticket, the "School District will go down with the Moline Police Department." At the trial, Frank recanted his claims against Nicholas, and the case was dismissed.
There was also an incident in which a white juvenile threw a rock at Nicholas, hitting him in the head and causing him to fall from his bicycle. Nicholas was taken to the hospital where his head injury was stitched. He told the police who his assailant was. Mrs. Jackson called Chief Etheridge who referred her to Captain Hanger. She was told by Hanger that no criminal charges would be filed because the assailant had a mental problem. He suggested to her that it was a civil matter.
At the age of 11, Nicholas was suspended from school for stealing a lap top computer from the school. There was no arrest. There was another incident where several people stopped him while he was riding his bike and tried to assault him. The police were called. The others were arrested. There were also numerous altercations between Nicholas and members of his family, some of which involved the police.
The police chief at the time was Steven Etheridge. When the Jacksons contacted the police on various occasions, they claim to have been told that they could not file charges against another party unless there were two independent corroborating witnesses. The Jacksons believe that the police in Moline treated them differently because they were black and that other parties could press charges without corroborating witnesses. In part due to these problems in Moline, the Jacksons moved to Milan, Illinois.
In Milan, the Jacksons claim to have been victimized by racial harassment from the Zemos, who are a Caucasian family residing two blocks from the Jacksons. There was quite a history of animosity between members of the Jackson family and one member of the Zemo family, minor son Jared Zemo. Jared Zemo has been in trouble with the police since he was very young, with charges of curfew violations, harassment, bike theft, criminal damage to property and the like. The police were frequently at the Zemo's home, usually because of Jared. His own father estimated that there were over 30 such visits.
The Milan Police Chief testified that he could not remember any other situation that had demanded so much of the department's resources. The first time any of this hostility involved the Village of Milan Police Department was on January 9, 2002. On that date, Jared and two of his friends stood outside the Jacksons' home yelling racial epithets and throwing rocks. All three boys were detained by the Milan police. A police report was sent to the State's Attorney, and the three boys were required to pay restitution to the Jacksons. The Jacksons admit that this incident was handled properly by the police. They also point out that this was the only charge against a member of the Zemo family relating to any incidents involving members of the Jackson family.
Later in January of 2002, Alexandria Jackson was in the family's garage. Jared Zemo arrived at the residence with two of his friends. They began throwing rocks at the Jackson residence, ultimately causing nearly $2000 in damage. When Alexandria threatened to call the police, the boys responded with racially derogatory comments.
Later in the month, Jared returned to the Jackson house, purportedly to apologize. He did not apologize, however, instead making threatening gestures to Nicholas. According to Alexandria, she pushed Jared away from Nicholas. According to Jared, Alexandria hit him with a hammer. The Jacksons called the police; before they arrived, Jared left and went to a friend's house. A Milan police officer, Sergeant Scott Holt, arrived on the scene. He interviewed Alexandria and Mrs. Jackson. At a later time, he interviewed Jared. According to Alexandria, Holt did not write down anything she told him.
The two families later agreed not to proceed with the matter, signing a "Request for Dismissal" form in an effort to resolve the dispute. Chief Baraks explained these forms as being generally used when "it appears that a case could be solved amicably." The form stated that "If I desire prosecution, I know full well that the Milan Police Department will assist me in this cause and encourage me to pursue this cause." The agreement included an understanding that the families would ...