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Dellace Holten v. City of Genoa

February 7, 2012


The opinion of the court was delivered by: P. Michael Mahoney Magistrate Judge



A jury decided this case in favor of Plaintiff in the amount of $260,000.00 on September 29, 2011. Before the court is Defendants' timely filed motion for judgment as a matter of law, or alternatively, to vacate judgment on the jury verdict and for a new trial.


Plaintiff's initial complaint, filed on May 22, 2002, alleged claims for excessive force and failure to intervene under 42 U.S.C. § 1983, in addition to state law claims for battery, respondeat superior, and indemnification. The complaint alleged that the Defendant Officers shot Plaintiff without justification or provocation while Plaintiff laid unarmed in an automobile.

On July 8, 2003, Judge Reinhard denied a motion to dismiss filed by Defendants. Shortly thereafter, Plaintiff filed an amended complaint alleging that Defendants engaged in retaliatory criminal prosecution of Plaintiff in response to his filing of this suit.

This case was plagued by a number of extended delays, including Plaintiff's incarceration, a key witness being called to military duty overseas, and substitutions of counsel by both parties. The parties consented to the jurisdiction of the Magistrate Judge, and the case was transferred by the District Court on June 9, 2008. Each party filed a number of motions in limine, on which the court heard oral argument on November 8, 2008. The court granted in part and denied in part both parties' motions in an 18-page Memorandum Opinion and Order from November 24, 2008. Defendants now challenge a number of the court's decisions on the motions in limine, which are more fully discussed below. Ultimately, the case was set for a jury trial to begin on September 26, 2011 on Plaintiff's claims for excessive force and failure to intervene.

At trial, Defendants introduced evidence that Defendant Smith attempted to effect a traffic stop in Genoa, Illinois, when Plaintiff fled. Plaintiff testified that he was in fear for his life because the car that pulled up behind him was an unmarked vehicle and the driver announced an intent to shoot him. The evidence showed that the chase proceeded for approximately 11 minutes into rural DeKalb and Ogle Counties. Nearly all of the chase was recorded on a video that was shown to the jury. Defendants Smith and Klink, along with responding officers from other departments, attempted to stop Plaintiff using "stop sticks" without success.

Eventually, Plaintiff began to run out of gas and he drove off the road to avoid a tractor. At that point, the parties agree that Plaintiff drove onto a property owned by the Wittwer family and proceeded to park the car in a small garage-like structure. It is at this point that the testimony and evidence between the parties diverged. Plaintiff testified that Defendant Smith was somewhere behind his vehicle, and that Defendant Klink was in the garage. Plaintiff told the jury that he attempted to get the car out of the garage because the officers shot at him, but his vehicle was blocked in by Defendant Klink's squad car. At that point, according to Plaintiff, he was attempting to surrender when the Defendant Officers again opened fire. The testimony of Defendants Klink and Smith painted a different picture with regard to their positioning and the timing of the shots fired. Officer Klink testified that he was attempting to get Plaintiff to surrender from just outside the garage when Plaintiff put his vehicle in reverse and attempted to drive the car in a way that could injure or kill the Defendants. Each Officer testified that he only opened fire when he was in fear for his own life or the life of the other. Plaintiff was struck three times by the Defendants' bullets. He was transferred to an area hospital but survived.

In addition to the testimony from the key witnesses to the events, the jury heard testimony from a number of experts and investigating witnesses. Plaintiff's expert, Mr. Brundage, is a ballistics expert who testified regarding the likely trajectory of the bullets. Mr. Brundage's testimony tended to support Plaintiff's description of events and undermined the Defendants' testimony as to their locations at the time shots were fired. Plaintiffs also called Mr. Rangel, a field supervisor for the crime scene services command. Defendants' presented as a witness the case agent for this incident, Mr. Costliow, who testified as to his findings of how the events unfolded at the scene of the shooting. His report and testimony tended to support Defendants' description of events.

At the close of Plaintiff's case, counsel for Defendants presented to the Court an oral Rule 50 Motion for Directed Verdict on both of Plaintiff's claims, because Plaintiff had failed to prove by a preponderance of credible evidence that excessive force was used by the Defendants.

The Court denied Defendants' Motion for Directed Verdict on September 29, 2011. At the close of the trial, the jury deliberated for nearly eight hours prior to reaching a verdict in Plaintiff's favor. The court entered judgment on September 29, 2011. On October 27, 2011, Defendants filed their motion for judgment notwithstanding the verdict or alternatively to vacate the judgment entered on the jury verdict and for a new trial.


Defendants' motion for judgment notwithstanding the verdict is based on Rules 50(a) and (b) of the Federal Rules of Civil Procedure. Because the court denied Defendants' motion for a directed verdict under Rule 50(a) at trial, Defendants are entitled to file a renewed motion. Fed. R. Civ. P. 50(b). In ruling on the motion, the court may allow the judgment on the verdict, order a ...

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