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More v. City of Braidwood

September 7, 2010

MORE
v.
CITY OF BRAIDWOOD, ET AL.



Name of Assigned Judge Sitting Judge if Other or Magistrate Judge Blanche M. Manning than Assigned Judge

DOCKET ENTRY TEXT

For the reasons stated below, the parties' motions in limine [65-1, 67-1] are granted in part and denied in part.

O[ For further details see text below.]

00:00

STATEMENT

This case is set for trial on September 20, 2010. The plaintiff's complaint arises from a September 16, 2007, arrest at a gas station by Officers Savarino and Soucie of the Braidwood Police Department. The plaintiff alleges claims under § 1983 for excessive force, failure to intervene, and false imprisonment, and state law claims for battery, assault, and malicious prosecution. The parties have each filed several motions in limine.

Evidence should be excluded on a motion in limine "only when evidence is clearly inadmissible on all potential grounds.... [and] [u]nless evidence meets this high standard, evidentiary rulings should be deferred until trial...." See Steck v. Bimba Mfg Co., 96 C 7442, 1997 WL 685003, at *1 (N.D. Ill. Oct. 30, 1997) (citation omitted). The denial of a motion in limine does not mean that the evidence is necessarily admissible, rather, it means only that the party moving in limine has not demonstrated that there is no possible basis for the admission of the evidence. Holmes v. Sood, No. 02 C 7266, 2006 WL 1988716, at *1 (N.D. Ill. July 12, 2006). See also Alexander v. Mt. Sinai Hosp. Med. Center of Chicago, No. 00 C 2907, 2005 WL 3710369 at *2 (N.D. Ill. Jan.14, 2005). Further, the denial of a motion in limine does not preclude a party from objecting to the admission of any evidence at trial. United States v. Connelly, 874 F.2d 412, 416 (7th Cir. 1989) ("a ruling [on motion in limine is] subject to change based upon the court's exposure to the evidence at trial"). Keeping in mind these observations, the court addresses the parties' motions in limine in turn.

A. Plaintiff's Motions in Limine

1. To exclude any implication by defense counsel that the amount of verdicts increases taxes or the cost of living.

Granted as the defendants do not object.

2. To exclude any reference to any conviction of the plaintiff or any of the plaintiff's witnesses.

The plaintiff seeks to exclude any reference to any conviction of the plaintiff or the plaintiff's witnesses as irrelevant, inadmissible under Fed. R. Evid. 609, and as improper character evidence under Fed. R. Evid. 404. The defendants respond that they do not intend to reference any convictions except the plaintiff's guilty conviction, after a bench trial, on a disorderly conduct ordinance violation based on his September 16, 2007, arrest. According to the defendants, the plaintiff denies that he was acting in a disorderly manner when he was present at the gas station, which is contrary to the testimony of the gas station attendant Julie Rhodes. The defendants contend that they plan to use the conviction to impeach the plaintiff should he testify that he was not acting in a disorderly manner.

The defendants first argue that the principle of collateral estoppel prevents the plaintiff from denying that he was acting in a disorderly manner on September 16, 2007. "[E]vidence of a prior conviction is admissible in a civil proceeding as prima facie evidence of the facts upon which the conviction was based if those facts are relevant to some issue involved in the civil proceeding." Hallett v. Richmond, 05 C 50004, 2009 WL 5125628, at *4 (N.D. Ill. May 15, 2009)(citing Calusinski v. Kruger, 24 F.3d 931, 934 (7th Cir. 1994)(concluding that "the magistrate judge properly admitted evidence of Mr. Calusinski's conviction for resisting arrest as prima facie evidence that he forcefully resisted attempts by the officers to arrest him").

Because the plaintiff's behavior at the time of his arrest is relevant to the excessive force and false arrest claims, then the evidence of the disorderly conduct conviction is admissible.

The plaintiff's motion in limine number 2 is denied to the extent that the defendants may use the disorderly conduct conviction to impeach the plaintiff if he denies the conduct.

3. To exclude any evidence as to how plaintiff's counsel was retained or is being compensated, and that his previous counsel withdrew.

Granted as the defendants do not object.

4. To exclude any statement that the plaintiff has asked for a greater amount of money than he actually expects to be awarded, that an award to the plaintiff would be like "winning the lottery" or that his request for damages is a "get rich quick" scheme.

Granted as the defendants do not object.

5. To exclude any non-party witnesses.

Granted as the defendants do not object.

6. To exclude any evidence that the defendants were not disciplined following the incident at issue.

The defendants do not object provided that the plaintiff does not raise any allegations or make any inferences suggesting that the incident was not properly investigated by the Braidwood Police Department.

Accordingly, the motion is granted; however, should the plaintiff raise any issue as to the propriety of the investigation by the Braidwood Police Department, then the defendants may present evidence about its internal investigation including that the defendant officers were not disciplined following an investigation.

7. To exclude any reference to or testimony concerning prior incidents or contact between plaintiff and the defendant officers.

According to the plaintiff, the record indicates that the plaintiff had prior contact with defendant Officer Savarino on three prior occasions and with defendant Officer Soucie on one prior occasion. According to the plaintiff, the prior incidents relate to a 2001 arrest for driving on a revoked license and driving under the influence, another arrest in "2000-2001" for driving on a revoked license and a 2003 arrest for an improper 911 call regarding an excessive cell phone bill. None of these were felony convictions or misdemeanors involving dishonesty. Thus, the fact of the convictions themselves are inadmissible under Fed. R. Evid. 609.

However, the defendants note that the prior interactions between the plaintiff and the officers are relevant to the plaintiff's claim of excessive force. "[T]he reasonableness inquiry in an excessive force case is an objective one: the question is whether the officers' actions are objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Abdullahi v. City of Madison, 423 F.3d 763, 768 (7th Cir. 2005)(citations and internal quotation marks omitted). Thus, the defendants contend that the officers' prior interactions with the plaintiff, which apparently included some resistance, inform the reasonableness of the force used ...


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