The opinion of the court was delivered by: Judge Blanche M. Manning
Plaintiff Joseph Paradiso and defendant James Obaldo are both real estate agents. On January 20, 2007, Obaldo and his client arranged a showing of a condominium being sold by Paradiso. However, the showing did not go as planned. After a tussle between the two real estate agents resulted in police being called to the scene, Paradiso was ultimately arrested for battery by defendant officer James Prerost as well as by Obaldo who, in addition to being a real estate agent, was an off-duty police officer. Paradiso has sued the two officers alleging that they violated his constitutional rights by falsely arresting him and employing excessive force because he is gay. He has also alleged various state law claims.
In advance of trial, the parties have filed motions in limine, each with numbered subparts. Many of the subparts are uncontested and are therefore granted without further discussion. The court addresses the remaining disputed subparts in turn.
I. Plaintiff's Motion in Limine [97-1]
1. Bar Evidence of OPS/IPRA Investigation
13. Bar Testimony of Kymberly Reynolds
The defendants seek to bar any evidence that the Chicago police department's Office of Professional Standards and one of its employees, Kymberly Reynolds, investigated Paradiso's complaint of police misconduct. The court agrees that evidence that an investigation occurred and the decision reached by the OPS are irrelevant given that violations of local laws and regulations have no bearing on claims brought under 42 U.S.C. § 1983, which involve violations of the constitution. See Thompson v. City of Chicago, 472 F.3d 444, 455 (7th Cir. 2006).
However, Paradiso correctly argues that statements made by witnesses to Reynolds may be relevant to impeach any witness whose trial testimony contradicts those earlier statements. Moreover, the fact that Paradiso filed a complaint of misconduct could become relevant if the defendants introduce evidence suggesting that Paradiso never made a contemporaneous report of misconduct.
Accordingly, the motion is granted to the extent that evidence that the investigation occurred and the decision reached by the OPS are barred. However, this order does not bar Paradiso's use of evidence uncovered during the investigation, including the use of witnesses' statements for purposes of impeachment.
2. Bar Generalized Evidence of Code of Silence
The defendants seek to bar generalized evidence of a police "code of silence," under which police officers allegedly lie, conspire, and cover-up in order to protect fellow officers. Paradiso's response focuses not on general evidence of a "code of silence," but rather on the admissibility of evidence that the officers involved in this case adhered to the "code of silence," under which they were required to "remain silent if they witnessed any violation of Plaintiff's constitutional rights by fellow officers." Response [103-1] at 2.
The court agrees that Paradiso is entitled to "develop the theme that a code of silence existed among these particular officers in this particular incident." Moore v. City of Chicago, No. 02 CV 5130, 2008 WL 4549137, at *6 (N.D. Ill. Apr. 15, 2008) (emphasis added). Accordingly, the motion in limine is granted in part and denied in part as follows: (1) because Paradiso appears not to seek to introduce generalized evidence of a "code of silence," such evidence shall be excluded; but (2) Paradiso may introduce evidence that the officers involved in the events underlying the complaint adhered to a "code of silence" regarding the alleged violation of his constitutional rights.
4. Bar Argument that a Conspiracy Existed
The defendants seek to exclude any evidence or argument regarding a conspiracy among the defendant officers given the fact that Paradiso has not alleged a conspiracy. Paradiso agrees to refrain from using the word "conspiracy" at trial, but argues that he is entitled to present "testimony and argument regarding complicity on the part of witnesses."
Because Paradiso has not alleged a conspiracy claim, evidence of or argument about a conspiracy is excluded. As for evidence of "complicity," it is not clear to the court what evidence Paradiso has in mind that would be evidence of complicity but not of a conspiracy and in any event he has not explained why evidence of complicity would be relevant given the absence of any allegations of a conspiracy.
Accordingly, the motion to exclude evidence or argument regarding a conspiracy among the defendant officers is granted. If Paradiso wants to introduce evidence of complicity at trial, he must first seek the court's permission and be prepared to establish the evidence's relevancy.
7. Bar Argument that Jurors Should Punish the City
The defendants seek to bar Paradiso from arguing that the jury should "send a message" to the City of Chicago with its verdict or somehow punish the city, because Paradiso cannot recover punitive damages from the city. See 745 Ill. Comp. Stat. 10/2-102 ("a local public entity is not liable to pay punitive or exemplary damages"). In other words, the defendants assert that arguments about sending a message or punishing the city are improper because they are relevant only to a claim for punitive damages, which in this case are unavailable.
Paradiso disagrees, noting that he is entitled to ask the jury to "send a message" by awarding full compensatory damages for his injuries. The court agrees with Paradiso and denies the motion in limine with the caveat to Paradiso that any "message" arguments must be made in the context suggested above, must not imply that he is entitled to punitive damages from the city, and must be limited to damages attributable to the defendant officers as opposed to non-party officers. See Saunders v. City of Chicago, 320 F. Supp. 2d 735, 738 (N.D. Ill. 2004).
8. Bar Evidence that Non-Defendant Officers Engaged in Misconduct
The defendants seek to bar evidence of allegedly bad acts by non-defendant police department employees, such as evidence that a crime scene technician failed to photograph Paradiso's injuries and police station personnel were rude and cursed at him. The defendants argue that such evidence is irrelevant because no claims are alleged as to those non-defendant police department employees, and their conduct is not attributable to the defendant officers because Paradiso has not alleged a claim of conspiracy.
In response, Paradiso argues generally, without any citation to authority, that "he should not be precluded from testifying to his entire experience while in police custody." Response [103-1] at 6. Perhaps Paradiso is attempting to avail himself of the concept of "inextricably intertwined" evidence, under which evidence is admissible if necessary to complete the party's story. See generally O'Sullivan v. City of Chicago, 484 F. Supp. 2d 829, 847 (N.D. Ill. 2007) (discussing concept of "inextricably intertwined" evidence). But Paradiso has not explained why testimony about his interactions with non-defendant officers is necessary to complete the story of the claims against the defendant-false arrest, excessive force, malicious prosecution, and intentional infliction of emotional distress. In the absence of any explanation why Paradiso's interactions with non-defendants is necessary to complete the story of his interactions with the defendant officers, the motion to exclude such evidence is granted, though without prejudice to Paradiso's ability to establish relevancy at trial.
10. Bar Evidence of Other Complaints and Proceedings Against the Defendant Officers
14. Bar Dewan Brooks & Robert Garcia from Testifying at Trial
In these two motions, the defendants seek to bar evidence of their prior bad acts. Specifically, they seek to bar evidence of two prior lawsuits, one filed by Robert Garcia and one by Dewan Brooks. Garcia's suit alleged claims of false arrest and excessive force against Obaldo based upon an incident in which Obaldo allegedly "flew off the handle" after pulling over Garcia during a traffic stop. Response [103-1] Ex. D at 68:17-18. After the stop, Obaldo allegedly planted cocaine on Garcia, clenched Garcia's genetalia while conducting a search, referred to Garcia's genetalia in a derrogatory manner, and asked Garcia if he was gay. Brooks' suit alleged a claim of excessive force based upon an incident in which Obaldo was among a group of police officers who beat Brooks for throwing a rock at officers investigating a shooting in Brooks' neighborhood.
Evidence of prior bad acts is "not admissible to prove the character of a person in order to show action in conformity therewith." Fed. R. Evid. 404(b). However, evidence of prior bad acts can be used "for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Id. To introduce such evidence, a party must show that (1) the evidence establishes a matter other than propensity, (2) the other act is "similar enough and close enough in time to be relevant to the matter in issue," (3) evidence of the other act is sufficient to permit a jury to find that the act occurred, and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. Treece v. Hochstetler, 213 F.3d 360, 363-64 (7th Cir. 2000).
Paradiso has established each of these factors. First, the prior incident involving Garcia establishes a matter other than propensity because, if jurors accept it as true, it would be evidence that Obaldo's allegedly violent reaction was motivated by his perception that Paradiso was gay. See United States v. Oechsle, No. 95-5853, 1996 WL 654377, at *2 (4th Cir. Nov. 12, 1996) (prior stabbing is evidence of intent where both it and stabbing at issue involved perceived homosexual overtures from the victim, followed by a facade of compliance from [the defendant], who then stabbed his victim in the back once the victim's guard was down.").
Second, Obaldo's reported violence towards Garcia is sufficiently similar to the instant incident because both involve violence directed at a victim he may have perceived to be gay and the incidents occurred close in time (the Garcia ...