The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge
MEMORANDUM OPINION AND ORDER
Although this long-pending case has produced two false starts in the parties' efforts to generate a joint final pretrial order ("FPTO") that will be suitable for entry as establishing the game plan for trial, the second of those submissions has resulted in the identification of a number of motions in limine and the exchange of memoranda regarding those motions. This memorandum opinion and order addresses the motions in anticipation of the receipt of what is hoped to be a proper FPTO suitable for entry.
Motion 1 seeks to keep out of the case what plaintiffs' counsel characterize as "all irrelevant arrests that did not lead to convictions and all related arrest records." That and all other plaintiffs' motions have been responded to by virtually all of the named defendants: City of Chicago ("City") and its police officers Cesar Claudio, Christine Deierl, Carson Earnest, Michael Egan, Lawrence Herhold, Robin Mahoney, Timothy Shanahan, Tim Silder and James Vins ("Vins")(collectively "Defendants"*fn2).
As to Motion 1, Defendants' Responses to Plaintiff's [sic] Motions In Limine (cited "D. Resp. --") states at page 2:
To be clear, it is unlikely that Defendants will seek to introduce arrest reports into evidence at trial, however, Defendants have identified the arrest reports as Exhibits in the event they become necessary.
This Court will take Defendants at their word and grant Motion 1,*fn3 but with the understanding that if, in what would seem to be an unlikely event, plaintiffs' offered testimony at trial states or suggests the absence of any prior arrests, an appropriate limited modification of this ruling may be considered at that time.
Motion 2 seeks to bar "all references stating or implying that any plaintiff or witness was in a gang." In today's societal environment, gang membership or affiliation is of particular concern because of the serious potential for generating unfair prejudice. Our Court of Appeals has recognized as much in such cases as United States v. Irvin, 87 F.3d 860, 865 (7th Cir. 1996):
Gangs generally arouse negative connotations and often invoke images of criminal activity and deviant behavior. There is therefore always the possibility that a jury will attach a propensity for committing crimes to defendants who are affiliated with gangs or that a jury's negative feelings toward gangs will influence its verdict. Guilt by association is a genuine concern whenever gang evidence is admitted.
Here D. Resp. 9 refers (1) to James' acknowledgment of his then-existing gang affiliation at the time of a pre-July-2002 arrest and (2) to a later Report of Investigation authored by co-defendant Vins. But absent some better evidentiary handle to the events at issue in this litigation (for which purpose Vins' ipse dixit does not qualify), both that and any other matters referred to by Defendants appear to pose a major danger of being considered propensity evidence barred by Fed. R. Evid. ("Rule") 404(b).
Even more critically, the overriding danger of unfair prejudice due to the inflammatory nature of gang references calls for the rejection of any such references under Rule 403. That has been recognized and applied not only by Irvin but by a flock of cases cited at P. Mem. 13.*fn4 Hence Motion 2 is also granted.
Motion 3 challenges the introduction of evidence that plaintiffs and their family have been victims of crime or have called police to report possible crimes against them. In these days, when (for example) random shootings seem to occupy the "breaking news" slot in local television stations' 10 p.m. news almost nightly, Defendants' excuses for the possible admissibility of such evidence seem to turn the world on its head.
Despite those attempted excuses, D. Resp. 11 does offer this disclaimer:
To be clear, Defendants do not intend to introduce such evidence at trial, but may use the evidence in rebuttal or to ...