The opinion of the court was delivered by: Judge Blanche M. Manning
Plaintiffs Byron Christmas and Tiffany Banks have sued the City of Chicago and several of its police officers alleging numerous federal and state law claims, including that their civil rights were violated when officers illegally searched and arrested them and left behind their newborn child at the scene of the arrest. The parties have filed numerous motions in limine. The motions are now briefed, and the court rules on them as follows.
A. Motion to Bar Improper Character Evidence [68-1]
The plaintiffs contend that during their depositions, the defendants questioned them about a miscarriage of Tiffany Banks', children born out of wedlock to Byron Christmas, a business owned by Christmas for which he did not recall filing taxes, and Christmas' tattoos. The plaintiff seek to exclude any evidence regarding these topics as irrelevant or, alternatively, unduly prejudicial.
The defendants respond that they do not intend to introduce evidence about Banks' miscarriage or Christmas' tattoos. Accordingly, the motion to exclude evidence about those topics is granted.
The defendants contend that they should be permitted to question Christmas about not paying business taxes under Federal Rule of Civil Procedure 608(b), which permits questions on cross-examination about specific instances of conduct if probative of truthfulness of untruthfulness. However, the defendants have not established that Byron Christmas was obligated to pay business taxes. Indeed, during his deposition Christmas testified that his business never generated income. "The fact that a witness has not filed income tax returns is not, by itself, evidence of illegal conduct if that witness was not required by law to file a tax return." First American Bank v. Western DuPage Landscaping, Inc., No. 00 CV 4026, 2005 WL 2284265, at *2 (N.D. Ill. Sept. 19, 2005). Because the defendants have not established that Christmas was obligated to pay business taxes, the motion to exclude questions about those taxes is granted.
As for evidence of Christmas' other children, the defendants offer the confusing argument that the evidence is admissible because it "is unlikely that Jane Doe [the newborn allegedly left behind at the scene of the arrest] will testify" and because "a children's relationship with their parents is impacted by the existence or nonexistence of siblings." Response [81-1] at 2. The defendants' argument fails to identify the relevance of the fact that Christmas has other children to whether he was illegally searched and falsely arrested, or whether the plaintiffs suffered damages as a result. Accordingly, the motion to exclude evidence of Christmas' other children is granted.
B. Motion to Bar Improperly Disclosed Witnesses [69-1]
The plaintiffs seeks to exclude a number of the defendants' witnesses identified in the defendants' supplemental Federal Rule of Civil Procedure 26(a) disclosures dated October 1, 2009. The plaintiffs contend that the disclosures were untimely because they came just one month before the end of discovery and, therefore, harmed them, although they do not specify how they were harmed. Under Federal Rule of Civil Procedure 37(c), a court must exclude witness that were not disclosed during discovery if the failure to disclose is (1) without substantial justification, and (2) not harmless. See In re Thomas Consol. Indus., Inc., 456 F.3d 719, 726 (7th Cir. 2006).
Among the witnesses that the plaintiffs contend were untimely disclosed are officers Rose Phillips, Katherine Miller, and Kristine Zahlmann, who apparently encountered Tiffany Banks at the 11th District female lockup facility. However, the defendants did previously disclose these officers as part of the defendants' initial Rule 26(a)(1) disclosures made on January 15, 2008. See Response [81-1], Ex. C at 5. Accordingly, the plaintiffs' contention that Phillips, Miller, and Zahlmann were untimely disclosed is unavailing.
In their reply brief, the plaintiffs offer the additional argument that Phillips should be barred because the defendants refused to produce her for deposition on October 13, 2009. In support, they cite a September 24, 2009, letter from the defendants' counsel objecting to producing 13 individuals for deposition (which presumably included Phillips) based, in part, on a scheduling conflict, but stating that counsel was "open to reconsidering this objection if you are able to provide a legitimate purpose for the depositions." Reply [86-1] Ex. D at 1.
The plaintiffs' additional argument is unavailing for two reasons. First, arguments raised for the first time in a reply brief are forfeited. See EEOC v. Int'l Profit Assoc., Inc., 647 F. Supp. 2d 951, 990 n.41 (N.D. Ill. 2009). Second, the letter from the defendants' counsel does not outright refuse to produce Phillips for her deposition.*fn1
Accordingly, the motion to bar officers Phillips, Miller, and Zahlmann as untimely disclosed is overruled.
The plaintiffs also contend that they were prejudiced by the October 1, 2009, disclosure of assistant state's attorney Diane McCullough. The government identifies McCullough as a witness who will offer evidence that Banks' car was forfeited in an apparently unrelated state proceeding and, therefore, she is not entitled to damages based upon officers' seizure of that car during her arrest. The plaintiffs have not explained how they were prejudiced by the disclosure of McCullough four weeks before the end of discovery and more than four months before trial. Accordingly, the motion to bar testimony from McCullough is overruled.
Next, the plaintiffs seek to bar testimony from the following witnesses identified by the defendants because they were described generically as "OEMC Dispatchers" and "Call Takers." Under Rule 26(a)(3), the names and phone numbers of known witnesses must be disclosed. The defendants have not identified any instance in which they disclosed the names of the OEMC Dispatchers and Call Takers they intend to call as witnesses. Accordingly, the plaintiffs motion to bar testimony from such witnesses is granted.
The plaintiffs also seek to bar testimony from witnesses the defendants described as "a still unidentified tow truck driver" and "Dr. Jennifer Perez." In their response brief the defendants offer no argument in response to the plaintiffs' motion to bar and, instead, state that they will not seek to call these witnesses at trial. Accordingly, the motion to bar testimony from these witnesses is granted.
C. Motion to Exclude Anonymous 911 Caller and Related Tapes and Transcripts [70-1]
In this motion in limine, the plaintiffs seek to exclude testimony from a witness who made an anonymous call to 911 at the time of the plaintiffs' arrest. According to the defendants, the anonymous caller contacted 911 to confirm that police had arrested the person that she and her daughter had seen on prior occasions selling drugs in the alley behind their home. The defendants respond that they do not intend to offer the anonymous 911 caller as a witness. See Response [81-1] at 3 n.1. Accordingly, the motion to exclude the anonymous 911 caller is granted.
Next, the plaintiffs seek to exclude the recording of the anonymous 911 call or any transcript of the recording. In support, they argue that the recording and/or transcript would be hearsay. The defendants respond that they will offer the recording not for the truth of the matters asserted in the call, but rather to show that police had probable cause to arrest Christmas because the anonymous caller had confirmed that Christmas was the man she had seen on prior occasions selling drugs. Because the recording and/or transcript would not be offered for the truth of the matter asserted, they are not inadmissible hearsay. See Fed. R. Evid. 801(c).
Alternatively, the plaintiffs seek to exclude the recording and/or transcript because there is no evidence that the arresting officers heard the call before making the arrests. Only information known to police leading up to an arrest is relevant to whether they had probable cause for the arrest. See Wheeler v. Lawson, 575 F.3d 629, 637 (7th Cir. 2008) (probable cause is based upon facts known to officer at the time, and evidence that came to light after the arrest is not relevant).
In response, the defendants contend that the arresting officers knew of the 911 call while arresting Christmas. However, during his deposition defendant officer Arnoldo Rendon testified only that he heard the dispatcher's description of the 911 call, not the call itself.
Given the uncertainty of what officers heard and based on the present record, this issue would be better resolved at trial after the record has been more fully developed. Accordingly, the ...