Argued May 21, 2013
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:09-cv-00005 — Rebecca R. Pallmeyer, Judge.
Before Ripple, Williams, and Tinder, Circuit Judges.
Williams, Circuit Judge.
Markith Williams sued several Chicago police officers for allegedly beating and stabbing him the day after he retrieved his vehicle from the police station parking lot. The trial was largely a credibility contest between Williams and the police officers. To make Williams less believable, the defendants presented evidence that Williams had committed seven drug or gun felonies in the last 10 years. The jury found for the defendants. Williams now seeks a redo of the trial because the district court, by allowing in the evidence of his prior convictions under Rule 609, did not articulate a probative-prejudice balancing analysis. However, the motion in limine filed by Williams to preclude the prior convictions did not ask the court to perform this balancing test. It simply gave a pro-forma recitation of the Rule 609 standard without any argument as to how or why the probative value of the convictions was substantially outweighed by the danger of unfair prejudice. Even after the defendants addressed the balancing issue, Williams did not file a reply, so the argument was not preserved for appeal. Williams also points to some inflammatory comments made by the defendants' counsel when referring to the prior convictions, but he did not object to those comments at trial. Though such comments were inappropriate, we do not find the comments to be so egregious that the district court plainly erred in failing to instruct the jury to disregard them. Therefore, we affirm.
On July 22, 2007, Markith Williams was pulled over for allegedly running a stop sign. Because he had no proof of insurance, he and his car were taken to the Chicago police station. After he was cited, he left the station with his car. The next day, several officers approached Williams on the street. The officers claimed that he had wrongfully taken his car from the station the previous night, but Williams claimed that one of the officers said he could take the car from the station and gave him back his keys. The officers sought to tow his car, and Williams resisted. According to Williams, the officers beat him repeatedly, and after he was handcuffed and taken to the police station, the physical abuse continued. According to the officers, Williams assaulted them, not the other way around, and the resulting handcuffing did not involve any unnecessary force. (Charges arising from Williams's alleged resistance were dropped.) Williams sued the officers for false arrest and excessive force under 42 U.S.C. § 1983.
Before trial, Williams's counsel filed a motion in limine, which was a little over two pages, asking the district court to preclude, among other things, evidence of: "Any facts tending to show that a Plaintiff was convicted of a crime on any occasion, not involving dishonesty or false statement or one for which the conviction and incarceration was over 10 years ago. F.R.Ev. 60." The motion then read:
Rule 609 of the Federal Rules of Evidence governs the admissibility of convictions of a crime. Rule 609(a) provides that evidence of a conviction is not admissible except to attack credibility on cross examination, and then only if (1) the crime was punishable by death or imprisonment in excess of one year; or (2) if the crime involved dishonesty or false statement, and (3) probative value outweighs prejudicial effect. Rule 609(b) provides that evidence of a conviction is not admissible if more than ten years has passed since the conviction and release from confinement.
It next argued for the exclusion of any facts related to the convictions beyond the charge and the sentence. Nothing else was said about Williams's request to preclude evidence of the convictions themselves. The motion concluded:
Because the foregoing facts are irrelevant, and if placed before the jury would be highly prejudicial to the Plaintiff, the Plaintiff respectfully requests that the Court enter an Order precluding the defense from mentioning, commenting upon, arguing or otherwise conveying such facts to the jury, without first seeking leave of court outside the jury's presence.
The defendants opposed the motion. Their opposition brief first listed the prior felony convictions they wanted to admit, including several drug possession or distribution convictions and one conviction for aggravated unlawful use of a weapon, all of which occurred within the last 10 years. The brief, relying on several relevant cases, specifically argued that the convictions' probative value was not substantially outweighed by the danger of unfair prejudice by emphasizing the importance of credibility in the case and suggesting that someone who flouts society's norms is more likely to lie on the stand. It argued that the prejudicial value was limited because most of the felony convictions were non-violent. And it criticized Williams's motion for simply relying on "the text of the rule and the ipse dixit that admission of the evidence would be unfairly prejudicial, " and noted that the motion failed to provide "any arguments or authorities" in support of any probative-prejudicial analysis. Lastly, the defendants agreed not to introduce evidence of any fact beyond the date, charge, and sentence involved in the convictions.
Williams's counsel did not submit a reply. The district court then denied the motion in a short minute order, stating:
Plaintiffs' motion in limine No. 1 to bar evidence of prior arrests or convictions, is granted in part and denied in part. Defendants assert that Plaintiff Williams has six felony convictions within the last ten years. Those convictions are admissible pursuant to FRE 609. The parties agree, however, that Defendants will ...