The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge
MEMORANDUM OPINION AND ORDER
Following the May 28, 2010 approval and issuance of the jointly submitted final pretrial order ("FPTO") in this action, each side has deluged this Court with a host of motions in limine--over two dozen each.*fn1 This Court's July 20, 2010 memorandum opinion and order ("Opinion I") dealt with Scott's motions, and this Court now turns to defendants' motions.
As in Opinion I, mention is first made of the motions not in dispute (all part of Dkt. 132): Motions 1, 5, 6, 7 and 8. All are granted. Now on to the contested motions.
Motion 2 (part of Dkt. 132)
Motion 2 shifts emphasis from the uncontested Motion 1 by focusing on evidence as to other asserted misconduct by the defendant officers, rather than on police misconduct in general. Even though in real world terms the fact that CRs covering complaints against those officers have been disposed of without adverse findings provides no assurance that the claimed misconduct did not occur (the extraordinarily low percentage of charges that end up sustained has led the system to be viewed with considerable skepticism), Fed. R. Evid. ("Evid. R.") 404(b) properly inhibits the admissibility of "other acts" as well as "other crimes."
At the same time, it is entirely possible that at trial some such matters may qualify for admissibility for purposes other than propensity. Accordingly Motion 2 is granted, subject to its possible revisiting as to specific matters at trial time.
Motion 3 (part of Dkt. 132)
Motion 3 seeks "to bar evidence, inference or argument regarding an alleged 'Code of Silence.'" Here it is worth noting that the cases cited by defense counsel go back well over a decade (dating from the middle 1990s), while Scott's response (Dkt. 148) draws on much more recent authority (all from this decade, including several issued this year and in the last two years). That shift in the nature of the general judicial response stems from the recognition that there is indeed a tendency for many officers to turn a blind eye or worse to misconduct by fellow officers.
This Court views the motion, framed in generic terms as it is, as at best premature. It is denied, with definitive rulings on specific matters to be made at the time of trial in the context of the proofs as then developed.
Motion 4 (part of Dkt. 132)
Motion 4 asks "to bar evidence, inference, or argument regarding the violation of General Orders." That is puzzling, given defense counsel's response to Scott's Motion 6, where they sought to invoke other asserted Chicago Police Department policies to justify the holding of detainees for more extended periods than Supreme Court authority would teach.
In any event, Thompson v. City of Chicago, 472 F.3d 444, 454-55 (7th Cir. 2006), on which defense counsel attempt to rely, places a limited bar on such evidence only in the sense that it does not go to a violation of federal constitutional rights. But in this instance Scott has also advanced state law claims under the supplemental jurisdiction provisions of 28 U.S.C. §1367, and Scott's counsel has adduced Hudson v. City of Chicago, 378 Ill.App.3d 373, 405, 881 N.E.2d 430, 456-57 (1st Dist. 2007) for the proposition that a violation of internal police department rules may be considered in determining whether claimed officer misconduct is willful and wanton. This Court has also previously held that such evidence may be relevant as to the potential imposition of punitive damages as to federal claims (if those have been established independently of the evidence now in question) as well as to state law claims.
Accordingly Motion 4 is denied. Needless to say, any such evidence admitted during trial will be subject to an ...