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Young v. County of Cook

April 2, 2009

KIM YOUNG, RONALD JOHNSON, AND WILLIAM JONES, ON BEHALF OF THEMSELVES AND A CLASS OF OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
COUNTY OF COOK, MICHAEL F. SHEAHAN, CALLIE BAIRD, SCOTT KURTOVICH, AND SALVADOR GODINEZ, DEFENDANTS.



The opinion of the court was delivered by: Matthew F. Kennelly, District Judge

MEMORANDUM OPINION AND ORDER

Defendants have moved for reconsideration of this Court's February 24, 2009 decision ("Decision"). They argue that the Court should not have granted summary judgment for plaintiffs as to liability on certain claims and should have granted summary judgment in defendants' favor on all claims. The Court denies the motion for the reasons stated below.*fn1

1. The Evidence Regarding Contraband

Defendants' motion focuses on what defendants characterize as the Court's disregard of the dangerousness of contraband in a jail setting and of the evidence regarding discovery of contraband from misdemeanor detainees. Defendants also take great issue with the Court's statement that they did not bring to the Court's attention evidence to support their contention that Cook County Jail (CCJ) has experienced a pervasive problem of contraband being brought in by misdemeanor detainees. They say the Court "ignored, ... downplayed, and ... distorted" the evidence. Motion at 8.

Not so. With their submissions, defendants submitted volumes of exhibits that, if stacked up, create a pile over fifteen inches high. A significant proportion of this consisted of 2,000-plus pages of CCJ reports concerning the seizure of contraband during the strip search process. With minor exceptions (noted below), however, defendants made no effort, in the five briefs they filed in connection with the summary judgment motions, to summarize the reports or to identify what, in particular, they contained of significance. The Court discussed this in detail in the February 24 Decision.

With their motion for reconsideration defendants have, for the first time, attempted to extract from the reports what they now deem to be the critical evidence. This takes the form of a chart that reflects on its face that it was prepared by defendants' counsel ("Q&H") on March 4, 2009, after the Court's decision. The chart lists instances -- 832 of them, defendants say -- on which persons purportedly charged with misdemeanors between early 2004 and late 2006 were found during the strip search process to have contraband -- money, in the overwhelming majority of these instances.

This submission is deficient on several levels. First, the time for defendants to make the effort to extract this sort of evidence from the reports was during the extensive summary judgment briefing process, not in a motion for reconsideration. The fact that evidence claimed to support defendants' contentions might have been somewhere within the mass of materials that defendants submitted is of no consequence. The Court repeats what it said on this topic in the February 24 Decision:

[I]t is not the Court's responsibility to go hunting through a record of this size unguided to try to find a factual dispute. Rather, it is the parties' obligation to draw the Court's attention to evidence they contend is relevant. See, e.g., Roger Whitmore's Auto Serv., Inc. v. Lake County, 424 F.3d 659, 664 n.2 (7th Cir. 2005); Ogdon v. Hoyt, 409 F. Supp. 2d 982, 986-87 (N.D. Ill. 2006).

Decision at 4. Indeed, it is rather unseemly, to say the least, for defendants to accuse the Court of "ignor[ing]," "downplay[ing]," or "distorting" evidence that they themselves did not bother to detail in their own summary judgment submissions.

Having bypassed the opportunity to properly bring this evidence to the Court's attention during the summary judgment briefing process, defendants forfeited the point. A motion for reconsideration is an opportunity to correct things the Court mistook or overlooked, not to correct deficiencies in a party's own presentation. Defendants had ample opportunity to focus the Court's attention on the details of the contraband reports during the summary judgment briefing process; they chose not to do so; now is too late.

Even were the Court to consider defendants' belated submission, it would remain deficient. A key feature of defendants' chart is its listing of the charges against the persons on whom contraband was found; that is what supposedly shows they were charged with misdemeanors or lesser offenses. But that information appears nowhere in the contraband reports themselves, as previously noted in the February 24 Decision.

Defendants -- or, more likely, their counsel -- obviously got this information somewhere, but they have made no effort to explain where or how. In short, they have not established a proper foundation for the admissibility of the chart.

Finally, even were defendants able to clear these two hurdles, the chart would not carry the day or create a genuine issue of material fact, because it provides virtually no information about where or how the contraband was recovered. The Court has examined a significant number of the underlying reports to determine whether such information, missing from defendants' written submissions or their belated chart, appears there. A significant proportion of the reports give no information at all about where the detainee had the currency or other contraband before it was recovered -- in his pockets? in a shoe? in his mouth? or in a body cavity? Rather, they say simply that money or other contraband was recovered during a strip search. Such reports are unhelpful in assessing the legitimacy of the asserted need for a full-strip, body-cavity search -- for all anyone knows, the item was in the detainee's pockets or somewhere else where it would have been discovered via methods far less invasive than a body cavity search with the detainee completely unclothed. In addition, a number of the reports say that the contraband was recovered from a detainee's shoe, his pockets, or his mouth, and others say the contraband was recovered from a container -- such as a glasses case or a "property bag" -- not from the detainee's person. In these situations, the recovery likewise would have taken place without anything approaching the full-strip, body-cavity search that defendants performed.

One would assume that if defendants had evidence reflecting some need for the most intrusive aspects of their search -- the requirement that the detainee strip naked and submit to an examination of his body cavities -- they ...


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