The opinion of the court was delivered by: Magistrate Judge Young B. Kim
MEMORANDUM OPINION and ORDER
Plaintiffs Daniel and Karina Casares bring this civil rights action under 42 U.S.C. § 1983, claiming that the seven defendant police officers violated their constitutional rights by using excessive force against them in the course of an arrest that took place on October 6, 2006. According to Plaintiffs, Defendants dragged Daniel-who has been a quadriplegic since 2002 and has limited use of his arms and hands-out of a car where he was sitting and hit and kicked him repeatedly. (R. 51, Second Am. Compl. ¶¶ 7-8.) They also hit and kicked Karina repeatedly when she yelled at them to stop beating Daniel. (Id. at ¶¶ 9-10.) According to Defendants, they used only reasonable force in arresting Daniel for striking a police officer in the face and Karina for interfering with Daniel's arrest. The parties have consented to the jurisdiction of this court. See 28 U.S.C. § 636(c). Currently before the court are Plaintiffs' motions in limine numbers 5, 19, 22, 24, and 26, and Defendants' motions in limine numbers 12, 18, 19, 20, 21, and 23. For the following reasons, the motions are granted in part and denied in part as follows: Plaintiffs' motion in limine number 5 is granted; Plaintiffs' motion in limine number 19 is granted in part and denied in part; Plaintiffs' motions in limine numbers 22, 24, and 26 are denied; Defendants' motions in limine numbers 12 and 19 are denied; Defendants' motion in limine number 18 is granted; and Defendants' motions in limine numbers 20, 21, and 23 are granted in part and denied in part.
Included in the district court's inherent authority to manage trials is the broad discretion to rule on motions in limine. Jenkins v. Chrysler Motors Corp., 316 F.3d 663, 664 (7th Cir. 2002). The purpose of a motion in limine is to prevent the jury from hearing evidence that is "clearly inadmissible on all possible grounds." Anglin v. Sears, Roebuck & Co., 139 F.Supp.2d 914, 917 (N.D. Ill. 2001).Accordingly, in some instances it is best to defer rulings until trial, where decisions can be better informed by the context, foundation, and relevance of the contested evidence within the framework of the trial as a whole. Id. "A pre-trial ruling denying a motion in limine does not automatically mean that all evidence contested in the motion will be admitted at trial." Delgado v. Mak, No. 06 CV 3757, 2008 WL 4367458, at *1 (N.D. Ill. March 31, 2008). And although a ruling granting a motion in limine excludes the introduction of certain evidence, the court may revisit evidentiary rulings during trial as appropriate in its exercise of discretion. Luce v. United States, 469 U.S. 38, 41-42 (1984).
I. Defendants' Motions in Limine
A. No. 12, To Bar Lay Opinions on Plaintiff Daniel Casares's Medical
Condition or What He Is Capable of Doing
Defendants seek to prevent Karina and other lay witnesses from testifying as to the kinds of movements Daniel is capable of making or giving their opinions regarding what kind of force would be necessary to arrest Daniel. Federal Rule of Evidence 701 states that lay witnesses are permitted to give opinions which are "(a) rationally based on the perception of the witness; (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge." In other words, "[l]ay opinion testimony is admissible only to help the jury or the court to understand the facts about which the witness is testifying and not to provide specialized explanations or interpretations that an untrained layman could not make if perceiving the same acts or events." United States v. Conn, 297 F.3d 548, 554 (7th Cir. 2002) (quoting United States v. Peoples, 250 F.3d 630, 641 (8th Cir. 2001)).
Defendants' request to exclude lay opinions sweeps too broadly. Under Rule 701, Karina and other witnesses who know Daniel will be allowed to describe their first-hand perceptions of Daniel's physical condition, as long as their testimony does not conflict with his criminal conviction for battery, as explained below in part I-D. To the extent that their testimony strays into the realm of specialized or technical interpretations of Daniel's movements or legal conclusions regarding the level of force necessary to arrest him, the admissibility of those statements will be dealt with best at trial, where objections can be presented in context. See Hawthorne Partners v. AT&T Techs., Inc., 831 F.Supp. 1398, 1401 (N.D. Ill. 1993). Defendants' motion in limine number 12 is denied.
B. No. 18, To Bar Evidence or Testimony Relating to a Sustained Complaint Register*fn1
Defendants move to prevent Plaintiffs from submitting evidence regarding a sustained complaint register ("CR") lodged against one of the defendant officers ("the accused officer"), in which he/she was accused of: (1) grabbing an arrestee, choking him, and slamming him to the ground outside the police station; (2) pushing the arrestee inside the station and causing his head to slam against the wall; and (3) providing false information regarding the arrest in case reports and in the Office of Professional Standards' ("OPS") subsequent investigation. The OPS investigator sustained allegations that the accused officer choked, pushed, and slammed the arrestee to the ground, provided false information in the arrest and case reports, and gave a false statement to OPS during the investigation by stating that his/her use of force was in response to the arrestee's resistance. The accused officer was suspended for 30 days as a result of the sustained allegations. According to Defendants, any allusions to this incident represent inadmissible and unduly prejudicial propensity evidence.
Under Federal Rule of Evidence 404(b), "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." It may be admissible, however, to show motive, opportunity, intent, plan, knowledge, identity, or absence of mistake. Id. To determine admissibility under Rule 404(b), the court 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 probative value of the evidence is not substantially outweighed by the danger of unfair prejudice." United States v. Hicks, 635 F.3d 1063, 1069 (7th Cir. 2011). A trial judge is not required to permit a plaintiff in an excessive force case to introduce a defendant officer's prior disciplinary history. Okai v. Verfuth, 275 F.3d 606, 611 (7th Cir. 2001).
Here, Plaintiffs assert that they seek to introduce evidence regarding the sustained CR not to show the accused officer's propensity for violence or untruthfulness, but to show "intent, plan, absence of mistake, training in and knowledge of proper police procedures, and trustworthiness." (R. 224, Pls.' Resp. at 3.) More specifically, they argue that it is "admissible to show that [the accused officer] intended to use unreasonable force on Plaintiff Karina Casares and that the degree of force [he/she] used was not accidental or a mistake," and that the accused officer's acts in "falsifying [his/her] factual account as to [his/her] battery and assault of the complainant, keenly demonstrates [his/her] state of mind, i.e., [his/her] knowledge and intent to injure, as well as [his/her] need to justify the unreasonable and disproportionate beating of Plaintiffs." (Id. at 4-5.) Plaintiffs' point is well-taken with respect to their argument that the accused officer's shifting explanations of the conduct underlying the CR is relevant to show his/her alleged knowledge and intent to justify his/her use of force after-the-fact. But their argument that the previous use of force demonstrates the accused officer's intent to use excessive force against Daniel is more problematic. This court recognizes that there have been excessive force cases in this district in which the court allowed evidence of an officer's prior use of excessive force to come in to demonstrate the officer's "intent to commit assault and battery in the case at bar." See Edwards v. Thomas, 31 F.Supp.2d 1069, 1074 (N.D. Ill. 1999); see also Finley v. Lindsay, No. 97 CV 7634, 1999 WL 608706, at *3 (N.D. Ill. Aug. 5, 1999). But as Defendants point out, whether the accused officer subjectively intended to use excessive force or to hurt Karina is not relevant to the excessive force analysis, which asks "whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Graham v. Connor, 490 U.S. 386, 397 (1989). That is because "[a]n officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer's good intentions make an objectively unreasonable use of force constitutional." Id. Under the Graham explanation of the excessive force inquiry, this court believes that the CR is not admissible to show that the accused officer intended to use excessive force against Karina, but may be admissible to show his/her knowledge of his/her need to excuse his use of force.
Most motions seeking to introduce prior disciplinary records seem to live or die with the second prong, compare, e.g., Akbar v. City of Chicago, 06 CV 3685, 2009 WL 3335364, at *2 (N.D. Ill. Oct. 14, 2009), with Petrovic v. City of Chicago, No. 06 CV 6111, 2008 WL 818309, at *3 (N.D. Ill. March 21, 2008), which requires the court to analyze whether the prior act is "of recent vintage and sufficiently similar to be relevant to the matter in issue," Okai, 275 F.3d at 610. Here, the incident underlying the sustained CR and the accused officer's actions in justifying his/her use of force against Karina are sufficiently close in time. The incident underlying the sustained CR took place only 20 months before the Casares incident, and the investigation was completed only five months before. See United States v. Torres, 977 F.2d 321, 327 (7th Cir. 1992) (noting that 20-month period between incidents meets the temporal requirement of Rule 404(b)). But Plaintiffs' explanation of the accused officer's shifting explanations in this case are insufficiently similar in nature to his/her false statements made in connection with the sustained CR. In the prior incident, the accused officer completely omitted any reference to his/her use of force from his/her initial report and only amended his/her report to describe the force used after it had been approved by his/her supervisor. Here, the accused officer acknowledged that he/she used force against Karina from the get-go. And none of the supposed inconsistencies to which Plaintiffs point establish the requisite similarity between his/her prior dishonesty and what happened here. For example, they emphasize that the accused officer approved an arrest report stating that Karina had shoved and hit him/her in the chest before he/she subdued her, but then signed a tactical response report that says Karina failed to follow verbal commands, stiffened, and pulled away. But the tactical report simply provides space for an officer to check boxes to describe the arrestee's conduct, and the fact that the language on the form does not line up precisely with the accused officer's first-hand description of Karina's actions hardly demonstrates that he/she attempted here, as in the previous incident, to hide his/her use of force from his/her supervisor. Plaintiffs also point to the fact that the tactical report states that the accused officer performed a take-down of Karina, but at a subsequent tow hearing, the accused officer testified that he/she did not even watch the take-down. (R. 224, Ex. B, Tr. at 19.) That is certainly a matter about which the Plaintiffs will be permitted to cross-examine the accused officer, but it is not sufficiently similar to the conduct underlying the sustained CR to meet the second prong of the 404(b) analysis.
Similarly, and in the interest of completeness, the court notes that even the accused officer's use of force in the prior and current incidents are different enough to prevent them from clearing the second prong's hurdle. In the prior incident, the accused officer was found to have mistreated a male arrestee by choking him and throwing him to the ground while he was already handcuffed. (R. 212, Ex. A.) Here, the accused officer allegedly took Karina to the ground as she was moving toward him/her, and used the take-down to accomplish the task of handcuffing her. Because there are no obvious commonalities among these two instances of force, the aspect of the CR pertaining to the force findings are inadmissible under prong two as well.
Turning to prongs three and four, because the CR was sustained, a jury could find that the accused officer committed the prior act. Hicks, 635 F.3d at 1069. But given the limited probative value of the sustained CR for the substantive purpose of demonstrating the officers' intent, here the Rule 403 analysis that is incorporated into prong four falls in favor of Defendants. The danger that the jury will draw improper propensity conclusions from the sustained CR is high, see Donald v. Rast, 927 F.2d 379, 381 (8th Cir. 1991), as is the danger that introducing this evidence will result in a ...