The opinion of the court was delivered by: Judge Manning
DEFENDANT CITY OF CHICAGO'S RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW OR NEW TRIAL, IN THE ALTERNATIVE
Defendant City of Chicago ("City"), by Mara S. Georges, Corporation Counsel for the City, for its renewed motion for judgment as a matter of law or in the alternative, a new trial states:
Plaintiffs came to the conclusion of a four-week trial without presenting a legally sufficient evidentiary basis for a reasonable jury to find for them on their Monell claim against the City. Thus, pursuant to Fed.R.Civ.P. 50(b), the City requests this Court to grant its motion for judgment as a matter of law on plaintiff's Monell claim against the City. Plaintiffs have adduced no evidence of a constitutional violation, no evidence of a custom or practice that was the cause of any alleged constitutional violation, and no evidence of deliberate indifference on the part of the policymaker for the City - - the City Council. Because plaintiffs have not established any of the elements necessary to support a Monell claim, this Court should not permit this claim to go to the jury but should grant the City's motion for judgment as a matter of law.
In deciding a Rule 50(b) motion, a court must consider the evidence in the light most favorable to the prevailing party and draw all reasonable inferences in favor of the prevailing party. If the evidence overwhelmingly favors the moving party, then the verdict cannot stand. Harrison v. Dean Witter Reynolds, Inc., 79 F.3d 609,613 (7th Cir. 1996). The standard on review is whether the evidence presented, combined with all reasonable inferences that may be drawn from it, sufficiently supports the jury verdict when viewed in the light most favorable to the party winning the verdict. Yarbrough v. Tower Oldsmobile, Inc., 789 F.2d 508, 512-13 (7th Cir. 1985). The reviewing court "does not judge the credibility of witnesses." Matthewson v. National Automatic Tool Co., Inc., 807 F.2d 87, 90 (7th Cir.1986 ). "Our role is not to weigh the evidence in search of a preponderance as would a jury, but it is instead the more restrictive function of determining if the evidence in support of the verdict is substantial; a mere scintilla if supporting evidence will not suffice." Perfetti v. First Nat. Bank of Chicago, 950 F.2d 449, 450 (7th Cir. 1991), cert. denied, 505 U.S. 1205, 112 S.Ct. 2995, 120 L.Ed.2d 871 (1992)(quoting LaMontagne v. American Convenience Products, Inc., 750 F.2d 1405, 1410 (7th Cir. 1984)) (emphasis in original).
Under the governing law, before plaintiffs can hold the City liable under Monell, they first must prove that the defendant Miedzianowski in fact committed the alleged misconduct and deprived plaintiffs of their constitutional rights. If plaintiffs do not prove that defendant Miedzianowski caused them to suffer any constitutional injury, they cannot prevail against the City on their "policy" claim. City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) ("if [plaintiffs] are unsuccessful in their claims against the Officers, they will no longer have a cause of action against the city"); Treece v. Hochstetler, 213 F.3d 360, 364 (7th Cir. 2000)("it is well established in this Circuit that a municipality's liability for a constitutional injury 'requires a finding that the individual officer[is] liable on the underlying substantive claim.'"). Plaintiffs have failed to prove that defendant Miedzianowski caused them to suffer a deprivation of their constitutional rights.
Plaintiffs' claim against defendant Miedzianowski is that he threatened them and retaliated against them and as a result, their First Amendment rights were chilled. However, plaintiffs have presented no evidence that their First Amendment rights were chilled in any manner as a result of defendant Miedzianowski's alleged conduct. Nor have plaintiffs presented evidence that, under an objective standard, their First Amendment rights would have been chilled as a result of defendant Miedzianowski's conduct. In fact, plaintiffs have presented a wealth of the evidence to the contrary. Plaintiff Klipfel testified that she spoke with news media. (Trial Tr. 206:5-25; 207:1-22; 301:7-11 )*fn1 . She further testified that she spoke with her supervisors and ATF IAD about her allegations of misconduct by defendant Miedzianowski as well as the FBI and the United States Attorney's Office. (Trial Tr. 208:17-25; 209:1-11; 214:10-23; 301:14-22). Plaintiff Casali testified that he spoke with his ATF supervisors, an AUSA, and ATF IAD about his allegations of misconduct by defendant Miedzianowski, as well as the FBI. (Trial Tr.860:10-25; 861:1-5; 925:4-17; 973:1-20). He further testified that he and his wife spoke to their congressman regarding their allegations of misconduct by defendant Miedzianowski. (Trial Tr.859:8-25; 860:1-9 ). Finally, James Pate, an author for Soldier of Fortune Magazine, testified that he first contacted plaintiffs after reading about them in a Time magazine article. (Trial Tr.1342:1-23) He further testified that plaintiffs spoke with him at length about their allegations of misconduct by defendant Miedzianowski and that they were cooperative in the interviews. (Trial Tr.1364:6-17; 1371:2-3; 1376:11-14). Nowhere is there any evidence that plaintiffs' First Amendment rights were chilled or, objectively, would have been chilled as a result of defendant Miedzianowski's alleged threatening and retaliatory conduct.*fn2 Thus, plaintiffs' constitutional violation claim against defendant Miedzianowski must fail.
1. No Evidence Satisfies the Requirement for Establishing Municipal Liability for the Alleged Custom
Plaintiff alleges that there exists a custom of a "code of silence." However, plaintiffs have no factual support for this allegation. There is no evidence showing that this alleged custom exists at all; at a minimum, the evidence demonstrates that this custom does not exist at a level constituting a "policy" as defined by Monell and its progeny. Similarly, no evidence establishes "acquiescence" or "deliberate indifference" by the City or demonstrates the necessary causal like between the alleged custom and plaintiffs' injury.
A practice of unconstitutional conduct, lacking formal approval, may provide the basis for municipal liability only if the plaintiff can prove that the final policymaking authority both knew of and acquiesced in a pattern of unconstitutional conduct. Cornfield by Lewis v. Consolidated High School Dist. No. 230, 991 F.2d 1316, 1326 (7th Cir. 1993). Custom can be established through widespread, enduring practices that violate constitutional rights in a systematic manner. McNabola v. Chicago Transit Authority, 10 F.3d 501 (7th Cir. 1993). Although evidence of a persistent and deeply rooted pattern permits the inference that policymakers must have known of its existence, the plaintiff must still prove that the policymaking authority acquiesced in the pattern of unconstitutional conduct. See, McNabola, 10 F.3d at 511. Acquiescence must be shown by proving that the persons responsible for making municipal policy have demonstrated deliberate or reckless indifference to complaints of misconduct. If the policymakers take steps to eliminate the alleged practice, the fact that the steps are not effective is insufficient to establish acquiescence (and thus adoption) of the complained-of practice as a "policy." Wilson v. City of Chicago, 6 F.3d 1233, 1240 (7th Cir. 1993).
2. A Custom of a "Code of Silence" that Permits Threatening and Retaliatory Acts by Chicago ...