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Osby Rushing v. Chicago Police Officers M. Debose

September 30, 2011


The opinion of the court was delivered by: Magistrate Judge Geraldine Soat Brown


Before the court are plaintiff's motion in limine [dkt 36] and defendants' motion in limine [dkt 40]. The motions are ruled upon as follows.


Plaintiff Osby Rushing brings a claim under 42 U.S.C. § 1983 alleging violation of his civil rights as well as an Illinois tort claim of malicious prosecution. (Compl.) [Dkt 1.] On June 11, 2009, Rushing was arrested by defendant Chicago Police Officers Debose, Lopez, Magallon, Flis, Gonzalez, and Iza for alleged possession of a controlled substance (crack cocaine). (Proposed Pretrial Order ¶ 3.) [Dkt 38.] Rushing contends there was no probable cause for the arrest, while defendants contend that there was probable cause. (Id.)


Generally, "[m]otions in limine are disfavored." Mi-Jack Prods. v. Intl. Union of Operating Engrs., Loc. 150, AFL-CIO, No. 94 C 6676, 1995 WL 680214 at *1 (N.D. Ill. Nov. 14, 1995). "Evidence should not be excluded in limine unless it is clearly inadmissible on all potential grounds." Id. Rather, rulings on evidence "ordinarily should be deferred until trial," when they may be resolved in the proper context. Id. The movant bears the burden to show that the evidence that it seeks to preclude is "clearly inadmissible." Plair v. E.J. Branch & Sons, Inc., 864 F. Supp. 67, 69 (N.D. Ill. 1994). Denial of a motion in limine is not a ruling that the material subject to the motion is necessarily admissible. Rather, it means only that "outside the context of trial, the court cannot determine whether the evidence in question is admissible." Id. at 69.

I. Plaintiff's Motion in Limine

Rushing seeks to bar the defense from introducing evidence that Jeffrey Davis, who both parties have identified as a trial witness, was previously arrested and convicted of a crime. (Pls.' Mot.) Mr. Davis was present when Rushing was arrested on June 11, 2009, and was arrested himself at the same time. Rushing anticipates that defendants will try to introduce Mr. Davis's 2006 conviction for an unspecified felony drug crime. (Id.) Plaintiff argues the following: (1) defendants did not disclose any evidence of Mr. Davis's conviction during discovery, and it should therefore be barred; (2) evidence of the conviction is irrelevant and prejudicial under Federal Rules of Evidence 401 and 403 and should also be barred pursuant to Rules 404(b) and 609; and (3) if evidence of the conviction is admitted, it should be limited to the felony charged, the date, and the disposition.

Defendants respond as follows: (1) evidence of Mr. Davis's conviction was a matter of public record and did not need to be disclosed under Federal Rule of Civil Procedure 26; further, evidence of a prior felony need not be disclosed during discovery if offered solely for the purpose of impeachment under Rule 609; (2) the conviction is admissible because it is probative of the fact that Mr. Davis was "a known drug dealer and that Plaintiff's meeting with him was not a chance meeting, but a planned drug buy" as well as "[d]efendants' probable cause to stop Plaintiff's vehicle carrying a known and admitted drug dealer," and that the probative value outweighs any "slight" prejudice; and (3) defendants only possess information about the felony charged, the date of the conviction, and the sentence, and thus do not dispute limiting the testimony to those facts. (Defs.' Resp. at 2.) [Dkt 41.]

The admissibility of Mr. Davis's prior felony conviction is subject to Federal Rules of Evidence 404(b) and 609. Under Rule 404(b), evidence of a person's prior "crimes, wrongs, or acts" cannot be introduced to show the person's "action in conformity therewith." It may come in for other purposes, such as "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake. . . ." Fed. R. Evid. 404(b). Although Rule 404(b) is most commonly seen as applied to criminal defendants, it is also applicable in civil cases. See Huddleston v. U.S., 485 U.S. 681, 685 (1988).Furthermore, Rule 404(b) applies to the prior acts of third parties because the rule on its face applies to a "person" and not only a party to the case. Agushi v. Duerr, 196 F.3d 754, 760 (7th Cir. 1999).

Here, defendants want to introduce evidence that Mr. Davis, a third-party witness, was convicted of a drug-related felony in order to show that Rushing's meeting with him was a planned drug buy and to show that defendant officers had probable cause to pull over an "admitted" drug dealer. (Defs.' Resp. at 2.) What defendants are essentially arguing is that the 2006 conviction should come in to show that it is likely Mr. Davis was dealing drugs in July 2009. In other words, defendants want to establish that Mr. Davis was acting "in conformity therewith" his previous crime, and that Rushing and defendants acted accordingly. Using a prior conviction for that purpose is exactly what Rule 404(b) prohibits.

What Rushing and the officers knew or believed about whether Mr. Davis was selling drugs on July 11, 2009 may well be probative to why Rushing and Davis met that day and whether the officers had probable cause to arrest Rushing. However, that cannot be established by evidence that Mr. Davis was convicted of a crime in 2006. Although defendants argue the conviction should come in because it shows Rushing's"absence of mistake" and "intent," defendants do not explain how Mr. Davis's conviction alone would be at all probative of Rushing's state of mind on that particular day in 2009. Moreover, defendants have provided no details of Mr. Davis's conviction to demonstrate that it would be relevant to any allowable use under Rule 404(b). Therefore, evidence of Mr. Davis's 2006 conviction cannot be introduced to show that he was selling drugs on July 11, 2009.

However, this does not end the analysis. Under Rule 609, evidence of a prior conviction can also come in "[f]or the purpose of attacking the character for truthfulness of a witness." Under the rule, felony convictions that occurred within the previous ten years may be used for impeachment so long as the probative value of admitting the evidence outweighs any prejudicial effect. Fed. R. Evid. 609(a)(1).*fn1

The evidence of Mr. Davis's felony drug conviction could potentially fall under Rule 609(a)(1), since it occurred within the past 10 years. However, before evidence of a prior conviction can come in to impeach a witness, the court must weigh the value of the evidence against its prejudicial effect. In doing so, a court considers: (1) the impeachment value of the prior crime; (2) the point in time of the conviction and the witness's subsequent history; (3) the similarity between the past crime and the charged crime; (4) the importance of the testimony; and (5) the centrality of the credibility issue. U.S. v. Smith, 131 F.3d 685, 687 (7th Cir. ...

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