The opinion of the court was delivered by: Honorable Joan B. Gottschall
MEMORANDUM OPINION AND ORDER
Johnny Betts brought this § 1983 false arrest suit against City of Chicago Police Officers Pierri and Stinar and the City of Chicago. Betts' complaint also includes claims for unlawful search, malicious prosecution, false imprisonment, intentional infliction of emotional distress, and indemnification. Before the court are the parties' motions in limine.
"Although the Federal Rules of Evidence do not explicitly authorize in limine rulings, the practice has developed pursuant to the district court's inherent authority to manage the course of trials." Luce v. United States, 469 U.S. 38, 41 n.4, 105 S. Ct. 460, 83 L. Ed. 2d 443 (1984). The court has broad discretion to rule on evidentiary questions raised in motions in limine. Jenkins v. Chrysler Motors Corp., 316 F.3d 663, 664 (7th Cir. 2002). Nevertheless, a court should grant a motion in limine excluding evidence only when the movant shows that the evidence "is inadmissible on all potential grounds." CDX Liquidating Trust ex rel. CDX Liquidating Trustee v. Venrock Assocs., 411 B.R. 591, 597 (N.D. Ill. 2009) (citing Townsend v. Benya, 287 F. Supp. 2d 868, 872 (N.D. Ill. 2003), and Robenhorst v. Dematic Corp., No. 05 C 3192, 2008 WL 1821519, at *3 (N.D. Ill. Apr. 22, 2008)). "'[E]videntiary rulings should [ordinarily] be deferred until trial so that questions of foundation, relevancy and potential prejudice may be resolved in proper context.'" Id. (quoting Hawthorne Partners v. AT&T Techs., Inc., 831 F. Supp. 1398, 1400 (N.D. Ill. 1993)). Rulings on motions in limine are preliminary; "the district court may adjust a motion in limine during the course of a trial." Farfaras v. Citizens Bank & Trust of Chi., 433 F.3d 558, 565 (7th Cir. 2006) (citing Luce, 469 U.S. at 41-42); Luce, 469 U.S. at 41-42 ("[A] ruling [in limine] is subject to change when the case unfolds, particularly if the actual testimony differs from what was contained in the defendant's proffer. Indeed even if nothing unexpected happens at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling.") Accordingly, the parties may renew their objections at trial as appropriate.
A. Plaintiff's Motion In Limine No. 1
For his first motion in limine, Betts argues that testimony that he was arrested in a "high narcotic area" should be excluded as irrelevant under Federal Rule of Evidence 401 or, in the alternative, because its probative value is outweighed by the risk of prejudice to Betts, such that it should be excluded under Federal Rule of Evidence 403. The defendants respond that this evidence is relevant and its probative value outweighs any risk of prejudice since, to determine whether the defendants had probable cause to arrest Betts, the jury must evaluate "the common-sense judgment of the officers based on a totality of the circumstances," including Betts' "presence in a high crime area." United States v. Reed, 443 F.3d 600, 603 (7th Cir. 2006); United States v. Brown, 188 F.3d 860, 865 (7th Cir. 1999). This court agrees. Accordingly, Betts' first motion in limine is denied.
B. Plaintiff's Motion In Limine No. 2
For his second motion in limine, Betts argues that evidence regarding the following incidents in the criminal history of Betts and his witnesses should be excluded under Federal Rules of Evidence 402, 403, and 404: (a) arrests of Betts, Elizabeth Cameron, and Denise Thomas that did not lead to convictions, (b) Betts' Jan. 1988 felony conviction for theft, (c) Thomas' Nov. 2004 misdemeanor prostitution conviction, (d) Thomas' 1996 conviction for retail theft, and (e) Thomas' 1980 retail theft conviction. The defendants respond that they are not seeking to introduce the majority of the arrests and convictions of which Betts complains; rather, the defendants are seeking to introduce only Betts' arrest history (to rebut his emotional distress claim) and one of Thomas' convictions (for impeachment purposes).
The defendants argue that Betts' arrest history is relevant to his intentional infliction of emotional distress claim. In his deposition, Betts testified that he has been arrested multiple times within a few blocks of his house for drug possession. Betts believes that all of these arrests were improper. Prior arrests are usually inadmissible under Federal Rule of Evidence 403, which bars evidence when its probative value is outweighed by its risk of prejudice, and Federal Rule of Evidence 404(b), which provides, "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith," but "may . . . be admissible for other purposes." Fed. R. Evid. 403 & 404(b); see Cruz v. Safford, 579 F.3d 840, 845 (7th Cir. 2009) (finding that the district court did not abuse its discretion by excluding evidence of seven prior arrests since the probative value of the prior arrests was outweighed by the risk of prejudice). A court deciding whether to admit Rule 404(b) evidence must consider whether:
(1) the evidence is directed toward establishing a matter in issue other than the defendant's propensity to commit the crime charged; (2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue; (3) the evidence is sufficient to support a jury finding that the defendant committed the similar act; and (4) the evidence has probative value that is not substantially outweighed by the danger of unfair prejudice.
United States v. Connor, 583 F.3d 1011, 1021 (7th Cir. 2010) (quoting United States v. Diekhoff, 535 F.3d 611, 617 (7th Cir. 2008)).
The defendants satisfy the first three prongs of this test since: (a) they are offering evidence of Betts' prior arrests to undermine his intentional infliction of emotional distress claim, not to show Betts' propensity to possess drugs, (b) the prior arrests are similar in that they were all for drug possession, occurred within a few blocks of Betts' home, and Betts himself contends that all of the arrests were wrongful, and (c) Betts' own testimony provides the jury with enough evidence to conclude that he was subjected to multiple prior arrests for drug possession near his home, all of which he contends were wrongful. However, the fourth prong of the test is not satisfied since, as explained below, it is far from clear that the evidence of Betts' prior arrests has enough probative value to his intentional infliction of emotional distress claim to outweigh the danger of unfair prejudice.
As the defendants point out, other courts have found prior arrests relevant to a jury's determination of how much, if any, emotional distress a plaintiff suffered from a later false arrest, reasoning that a person who has been arrested before would not be as traumatized as s/he claims to be since s/he has been through the arrest process before. See, e.g., Gribben v. City of Summit, No. 08 C 0123, 2010 WL 2928094, at *3 (N.D. Ill. Jul. 20, 2010) ("[I]f presented with evidence that Mr. Gribben had been arrested and incarcerated numerous times in the past, the jury could conclude that Mr. Gribben would not have been as emotionally traumatized by the arrest on January 6, 2007 as he claims to have been."); Redmond v. City of Chi., No. 06 C 3611, 2008 WL 539164, at *2 (N.D. Ill. Feb. 26, 2008) ("Evidence concerning Redmond's prior arrests is relevant because if Redmond had been arrested on prior occasions the trier of fact could conclude from such evidence that Redmond would not have been as emotionally traumatized by the May 8, 2004, [sic] arrest as he claims since he had already experienced the arrest process on prior occasions."). However, in so reasoning, these courts did not point to any empirical evidence in support of their assumption that a false arrest plaintiff who had been arrested before would not be as traumatized as s/he claimed to be since s/he had been through the arrest process before. Indeed, this court is not aware of, and the defendants do not point to, any evidence that supports the proposition that a person who has been wrongfully arrested is less traumatized by the experience simply because s/he has been lawfully arrested before, let alone evidence that shows that a person is less traumatized by a wrongful arrest because s/he has been wrongfully arrested before (as Betts claims is the case here).
In fact, it is easy to see how the opposite conclusion could be true -- that each false arrest was more demoralizing and distressing than the last. After all, if one false arrest is troubling, then a second may be doubly so. The plaintiff might have thought that the first false arrest was a fluke, the result of an officer or a few officers with poor judgment, perhaps nothing more; however, a second false arrest might lead the plaintiff to believe that something more insidious was going on -- that s/he is a de facto second-class citizen, destined to endure routine indignities because society values him or her less than other people. Anecdoctal evidence of racial profiling suggests that this is indeed the case. See, e.g., Charu A. Chandrasekhar, Flying While Brown: Federal Civil Rights Remedies to Post-9/11 Airline Racial Profiling of South Asians, 10 ASIAN L. J. 215, 218 & n.13 (2003) (discussing a Canadian South Asian author who cut his U.S. book tour short "after being repeatedly subjected to intrusive airport searches." He complained that "he was 'constantly made to feel like a second class citizen.'" "'[t]he first flight [my wife and ...