The opinion of the court was delivered by: Frazier, Magistrate Judge
Before the Court is a motion for summary judgment filed by defendants City of East St. Louis and Keith Randolph (Doc. No. 46). Plaintiff Brenda Williams is proceeding on a § 1983 claim in her capacity as the representative of the estate of Willie P. Johnson, deceased. Johnson died from a gunshot wound on July 29, 2007. Williams claims that defendant Randolph used deadly force in violation of Johnson's Fourth Amendment right to be free from unreasonable seizure. She further claims that the City of East St. Louis is liable based on continued employment of Randolph, policies favoring unnecessary application of force, and insufficient firearms training (Doc. No. 30).
The motion is supported by two arguments: that the existence of policies, practices or customs sufficient to support a finding of municipal liability cannot be proved against the City of East St. Louis, and that the underlying Fourth Amendment deprivation cannot be proved as to defendant Randolph. The motion is opposed (Doc. No. 63). A reply is on file (Doc. No. 66).
I. Summary Judgment Standard
Summary judgment is proper where admissible evidence shows that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."
Fed. R. Civ. P. 56(c)(2). A genuine issue of material fact arises when the facts and inferences drawn in favor of the nonmoving party would permit a jury to return a verdict for that party. Faas v. Sears, Robuck & Co., 532 F.3d 633, 640-41 (7th Cir. 2008). If plaintiff fails to make a sufficient showing on an essential element of her case upon which she will bear the burden of proof at trial, summary judgment is proper. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The pleadings establish that the defendants were acting under color of state law. Plaintiff bears the burden of proof on the remaining element of her claim: that the defendants' conduct deprived Johnson of a right, privilege, or immunity guaranteed by the Constitution or laws of the United States. Larsen v. Beloit, 130 F.3d 1278, 1282 (7th Cir. 1997). Because plaintiff is asserting a Fourth Amendment violation, she must prove that, considering the facts and circumstances that confronted Randolph (and not 20/20 hindsight), he behaved in an "objectively unreasonable" manner. Graham v. Connor, 490 U.S. 386, 397(1989). Deadly force may be used when a police officer has reasonable cause to believe that a suspect poses a danger of death or serious bodily harm, such as when the officer believes a suspect has a weapon. Tennessee v. Garner, 471 U.S. 1 (1985); Jacobs v. City of Chicago, 215 F.3d 758, 774 (7th Cir. 2000). Factors relevant to the Fourth Amendment inquiry include: (1) whether Johnson was under arrest or suspected of committing a crime: (2) the severity of the crime being committed; (3) whether Johnson was interfering with Randolph's execution of his duties; (4) whether Johnson was armed or posed an immediate threat to the safety of officers or others; and (5) whether Johnson was actively resisting arrest. Graham v. Connor, 490 U.S. at 396; McDonald v. Haskins, 966 F.2d 292, 292-3 (7th Cir. 1992). As to the claim against the City of East St. Louis, plaintiff must prove that Randolph was enforcing an express policy of the City, that there was a widespread practice constituting custom or usage with the force of law, or that Randolph had final policymaking authority. Latuszkin v. City of Chicago, 250 F.3d 502, 504 (7th Cir.2001); Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-91 (1978).
III. Admissibility of Plaintiff's Exhibit B
The Court first considers whether plaintiff's proposed Exhibit B may be considered in determining whether an issue of fact exists for trial. Exhibit B is a photocopy of a newspaper article purportedly printed by the Belleville News-Democrat on July 30, 2007. The article reports interviews conducted by Carolyn P. Smith, who relates statements made by from several persons, including Robert Winston (Doc. No. 63-2). Plaintiff suggests that the article is not hearsay because it is not offered for the truth of the matter asserted. She suggests that the article may be considered in determining whether Officer Randolph reasonably believed that his own life was in danger when he fired his weapon at Mr. Johnson. Alternatively, plaintiff argues that the residual exception to the hearsay rule applies to the statements attributed to Mr. Winston.
Hearsay is an out-of-court statement other than one made by the declarant while testifying, offered to prove the truth of the matter asserted. Fed. R. Evid. 801. If Exhibit B is offered to prove that Mr. Winston's statements are true, the defendants must have the opportunity to cross-examine Winston, the declarant. If the only significance lies in the fact that Mr. Winston spoke with Carolyn P. Smith, the credibility of Mr. Winston is irrelevant, and the opportunity to cross-examination Ms. Smith would permit an exploration of her credibility. Associated Randall Bank v. Griffin, Kubik, Stephens & Thompson, Inc., 3 F.3d 208 (7th Cir. 1993).
Some statements in the newspaper article plausibly suggests that Officer Randolph acted unreasonably under the circumstances. Those statements are attributed to Mr. Winston, whose remarks suggest that Johnson was disarmed and had moved away from his weapon before he was shot. The fact that Mr. Winston relayed information to Ms. Smith for her story has no independent relevance. Because the exhibit is being offered to show the truth of Mr. Winston's statements, Exhibit B is hearsay.
Under the residual exception, a hearsay statement may be admitted if five requirements are met: (1) circumstantial guarantees of trustworthiness, (2) materiality, (3) significant probative value, (4) the interests of justice, and (5) notice. Fed. R. Evid. 807. This narrow exception to the hearsay rule will not be applied because no competent information shows circumstances guaranteeing that the newspaper article's description of Mr. Winston's statements is accurate or that his statements are trustworthy. No information demonstrates that Mr. Winston based his statements on personal knowledge of the events, that he accurately perceived, recalled, and relayed information, that his impressions were free of undue influence (such as friendship with the victim or hostility toward law enforcement) or that his statements are otherwise particularly trustworthy. Even if it were assumed that Exhibit B is admissible, plaintiff failed to disclose the newspaper article or identify Robert Winston or ...