The opinion of the court was delivered by: Matthew F. Kennelly, District Judge
MEMORANDUM OPINION AND ORDER
This case is set for trial on August 3, 2009 regarding the claims on which the Court did not grant summary judgment, specifically, claims by one of the two plaintiff classes ("Class 1") regarding the conduct of strip / body cavity searches upon incoming male detainees at the Cook County Jail from February 2007 through the present. The propriety of strip searches as such is not challenged via these claims. Rather, the remaining claims concern equal protection -- the allegedly unjustified differential treatment of male detainees as compared with female detainees; the Fourth Amendment -- regarding the manner in which Jail personnel conducted the searches; and the Eighth Amendment and the Due Process Clause -- whether the searches, given how they were conducted, amounted to the improper infliction of punishment upon pretrial detainees.
The Court rules as follows on the parties' motions in limine.
1. The Court grants defendants' motion to bar plaintiffs from calling at trial class member witnesses who were noticed for deposition but did not appear. The Court made it clear to plaintiffs in early June that it would preclude from testifying any class member witness who did not appear for deposition. Plaintiffs had ample opportunity to secure their proposed witnesses' presence at a deposition prior to trial.
2. The Court denies defendants' motion to bar plaintiffs from calling in their case in chief any class members who are not named class representatives. Defendants cite no basis in law for the proposition that an unnamed class member should not be permitted to testify at the trial of a class action. There is likewise no basis for the proposition that unnamed class members are cumulative witnesses as a matter of law or that the purported "atypicality" of their testimony is a basis under the Federal Rules of Evidence or otherwise to bar them from testifying. The Court reserves the right pursuant to Rule 403 to prevent the presentation of unduly cumulative evidence as the trial develops.
3. Both sides in the case agree that the trial concerns strip / body cavity search practices from February 2007 through the present. Defendants have moved on relevance grounds to bar witnesses who were admitted into the Cook County Jail prior to that date from testifying. The Court wishes to hear defendants' response to plaintiffs' argument that testimony regarding the Jail's practice at earlier dates is relevant to show defendants' allegedly deliberate indifference to conditions in February 2007 and thereafter.
4. Defendants argue that a correctional officer's use of offensive language does not violate the Constitution and thus any evidence of that should be excluded; conducting strip searches of males in the presence of female officers does not violate the Constitution and thus any evidence of that should be excluded; and the presence of offensive smells during a strip search does not violate the Constitution and thus any evidence of that should be excluded as well. These requests reflect a rather obvious misunderstanding of the plaintiffs' claims and the applicable law. The determination of the constitutionality of defendants' alleged practices is based on the totality of the circumstances. It is inappropriate to compartmentalize each bit of plaintiffs' evidence and view it in isolation. The Court therefore denies defendants' motion to preclude this evidence (motion 4A, B & D), leaving for later determination the extent to which the legal points argued by defendants should be addressed in jury instructions.
The Court also denies motion 4C, in which defendants seeks to preclude evidence regarding Cook County Jail internal regulations. Just last week, in Mays v. Springborn, No. 05-3630, 2009 WL 2046484 (7th Cir. July 16, 2009), a case involving (among other things) strip searches in a prison setting, the Seventh Circuit stated that such evidence should be admitted: "although violation of the prison's rule against public searches was not, by itself, a violation of the constitution, it was relevant evidence on which the jury could have relied to conclude that the searches were done with an intent to harass." Id. at *5 (internal citation omitted). Such evidence is relevant to, at a minimum, plaintiffs' Eighth Amendment claim.
5. The Court wishes to hear further argument at the pretrial conference on defendants' motion to bar evidence of purportedly "unrelated incidents" of claimed abuse. The Court needs to have a better sense of exactly what plaintiffs intend to offer in this regard and to get defendants' reply to the arguments made at pages 5-7 of plaintiffs' response to defendants' motion.
6. The Court denies without prejudice defendants' motion to bar any use of pleadings and discovery responses (motion 6A & B). If plaintiffs attempt to use such documents at trial in a manner defendants believe is inappropriate under the Rules of Evidence, they should renew their objection at that time.
The Court wishes to hear further argument on defendants' motion to bar plaintiffs from using complaints and court filings from other lawsuits as evidence of notice, deliberate indifference, and other matters (motion 6C). Specifically, defendants should be prepared to address at the pretrial conference the points made in plaintiffs' response at page 8.
The Court denies defendants' request to bar plaintiffs from using the American Correctional Association's standards (part of motion 6D). A recently-produced January 2007 revision to the Jail's strip search policy cites certain of those standards. Because, however, the Court is elsewhere barring defendants from offering, via their expert Norman Carlson or otherwise, evidence that the ACA purportedly approved or did not object to the Jail's practices, plaintiffs may wish to rethink their intention to offer the ACA standards.
Defendants also ask the Court, on hearsay grounds, to bar plaintiffs from offering a report regarding the Jail issued by the U.S. Department of Justice pursuant to the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997a. The report references the Jail's strip search practices. It appears to the Court from plaintiffs' response that plaintiffs can satisfy the requirements of Federal Rule of Evidence 803(8) with regard to the report. Defendants should be prepared to address this point at the pretrial conference.
7. Defendants ask the Court to bar what they contend is inadmissible evidence of subsequent remedial measures, specifically, evidence that the Jail's use of partitions during strip searches of male detainees resulted from the settlement of Thompson v. Cook County, Case No. 03 C 7172 (N.D. Ill.). Defendants also ask the Court to bar evidence that partitions were first used in February 2007. The Court has a hard time seeing how the latter fact, by itself, is inadmissible, and defendants make no viable argument supporting exclusion of that fact. The Court denies their motion to that extent. As for the reference to the settlement of the Thompson case, plaintiffs contend that defendants paid only lip service to their agreement to use partitions. They argue that the fact that defendants agreed to the practice as part of the settlement of a lawsuit supports the proposition that they agreed to it only grudgingly and as a result did not ensure compliance with the agreement. The Court wishes to hear defendants' response to that argument.
The Court also requires further argument regarding defendants' position concerning evidence of the post-lawsuit introduction of the use of body scanning machines in lieu of strip searches. Defendants should be prepared to ...