The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge
MEMORANDUM OPINION AND ORDER
In conformity with the schedule
established during the April 6, 2011 conference during which this
Court and the parties' counsel discussed their jointly-proposed final
pretrial order ("FPTO") and this Court then entered the FPTO, each
side has tendered a set of motions in limine*fn1 and,
in turn, responded to the other's motions in limine.*fn2
This memorandum opinion and order will deal with both sides'
Plaintiffs' Motions in Limine
Although P. Motion 1 seeks the typical non-controversial order
excluding witnesses from the courtroom during the trial (such
exclusion would of course cease to operate when a witness has
testified and will no longer be called to the stand), defendants'
response is puzzling. After saying they "have no
objection" to the motion (D. Resp. 1 to P. Motion 1),*fn3
defense counsel inexplicably asks that the motion be denied.
Instead it is of course granted, as qualified by the two limitations
referred to in n.3
P. Motion 2 seeks "to bar Defendants from introducing evidence
regarding the Plaintiffs' or any witnesses' immigration or citizenship
status." Defense counsel's opposition reflects serious discredit on
What they say, before going on to elaborate, is that "Plaintiffs have directly placed their immigration status at issue" (D. Resp. 1 to P. Motion 2). On that score it is quite true that plaintiffs' First Amended Complaint at Law ("Complaint") ¶¶1 and 2 assert that both plaintiffs--Dagoberto Favila ("Favila") and Emma Estevane ("Estevane")--are United States citizens when they are in fact noncitizens. But those allegations, though untrue, could not be less relevant to plaintiffs' Section 1983 claims or to the defenses of the City of Chicago ("City") and its co-defendant Chicago Police Officers.*fn4
This Court's copy of the Constitution does not limit the applicability of the Fourteenth Amendment, or the provisions of the Bill of Rights that it incorporates, to citizens alone. It is worth noting that Instruction 1.01 of the Seventh Circuit's Pattern Jury Instructions, given in every civil trial, states in part:
You should not be influenced by any person's race, color, religion, national ancestry, or sex.
And Instruction 1.14, speaking of prior inconsistent statements that may come before the jury, says in part (emphasis added):
[Y]ou should consider whether it was simply an innocent error or an intentional falsehood and whether it concerns an important or an unimportant detail.
As defense counsel would have it, plaintiffs' status as citizens or immigrants is critical because "it implicates their credibility and ability to testify truthfully" (D. Resp. 2 to P. Motion 2). And for that jingoistic proposition counsel cite Hawthorne Partners v. AT&T Tech., Inc., 831 F.Supp. 1398, 1400 (N.D. Ill. 1993), which--quite apart from its nonprecedential status in any event--says nothing of the sort.
This Court will not be a party to allowing defense counsel to take such a cheap shot at plaintiffs or other witnesses who are noncitizens. As to the latter, if their status as immigrants has some relevance to their testimony (as it clearly does not as to plaintiffs themselves), this Court may consider the issue again at trial. But for now P. Motion 2 is granted unequivocally, both because of the constraint imposed by Fed. R. Evid. ("Evid. R.") 404(b) and under the balancing called for by Evid. R. 403.*fn5
P. Motion 3 seeks to allow plaintiffs "to call non-party Chicago police officers and employees as adverse witnesses." Again defendants resist, and once again their position--properly understood--is without merit.
There is a tendency among many lawyers to use the term "adverse witnesses," which carries the implication that some level of hostility on the witnesses' part must be demonstrated by the interrogating party. But the actual language of Evid. R. 611(c), which permits the use of leading questions, actually speaks instead of "a hostile witness, an adverse party, or a witness identified with an adverse party."
That last of the three categories plainly embraces City employees such as its police officers in a case such as this one. That is both the approach and the holding adopted by our Court of
Appeals three decades back in Ellis v. City of Chicago, 667 F.2d 606, 612-13 (7th Cir. 1981)--a case that, like this one, asserted a violation of constitutional rights actionable under 42 U.S.C. §1983 ("Section 1983") and targeted City and a police officer as defendants, with the witnesses at issue being fellow officers. What Judge Cudahy said for the Ellis panel ...