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Ross v. City of Chicago

United States District Court, N.D. Illinois, Eastern Division

April 3, 2014

LISA A. ROSS as special Administrator of the Estate of Devon A. Ross, Deceased, Plaintiff,
CITY OF CHICAGO, et al., Defendants.



This matter is before the court on the parties' motions in limine. For the reasons stated below, the motions are granted in part and denied in part. Plaintiff's motion for leave to supplement her Rule 26(a)(2)(C) Disclosure is granted.


I. Ross's Motions in Limine

Plaintiff Lisa A. Ross (Ross) has filed twenty-nine motions in limine.

A. Failure to Call a Witness

Ross seeks in Motion in Limine 1 to bar any evidence or argument that Ross failed to call any equally available witness at trial. Specifically, Ross is concerned that Defendants may comment on the absence of testimony by one or more of the civilian eyewitnesses to the shooting (Shooting) of Devon Ross. Defendants correctly point out that it is a fundamental trial strategy to point to the absence of evidence to support a plaintiff's case such as the absence of eyewitness testimony. Nothing prohibits Defendants from making such arguments as to the absence of witnesses. Ross cites Oxman v. WLS-TV, 12 F.3d 652 (7th Cir. 1993) in support of her motion. (P Mot. 1). However, in Oxman the Court addressed a situation when a party seeks to argue to the trier of fact that an adverse inference should be drawn from another party's failure to call a certain witness. 12 F.3d at 661. Defendants have not indicated that they intend to argue for such an adverse inference or imply that such an inference should be made by the trier of fact. Therefore, Ross's Motion in Limine 1 is denied.

B. Evidence Recovered from Car

Ross seeks in Motion in Limine 2 to bar the introduction of any evidence concerning any evidence recovered from the car (Car) that Devon Ross was driving. Ross argues that Defendant Jamie Chesna (Chesna), who was the officer that allegedly shot Devon Ross, did not know about any of the evidence in the Car when she shot Ross, and that the evidence is irrelevant and overly prejudicial. Defendants contend that they intend to offer as evidence a fully loaded semi-automatic handgun (Gun) that was recovered from the floor of the Car next to the driver's seat. An excessive force claim brought pursuant to 42 U.S.C. ยง 1983 is evaluated "under the Fourth Amendment's objective reasonableness standard." Common v. City of Chicago, 661 F.3d 940, 943 (7th Cir. 2011). Generally, the court should focus on "those circumstances known and information available to the officer at the time of h[er] action (firing the fatal shot)." Id. (internal quotations omitted)(quoting Sherrod v. Berry, 856 F.2d 802 (7th Cir. 1988)). However, the Seventh Circuit has made clear that there is no "black-letter rule precluding the admission of evidence outside the officer's knowledge." Common, 661 F.3d at 943 (internal quotations omitted)(quoting Sherrod, 856 F.2d at 806).

In the instant action, Defendants indicate that they do not intend to argue that Chesna was aware of the Gun when she pursued Devon Ross on foot, or that the Gun impacted Chesna's decision-making at the time of the Shooting. Instead, Defendants indicate they intend to reference the Gun because it corroborates Chesna's version of events. Although the presence of the Gun is not relevant in assessing the objective reasonableness of the actions of an officer in Chesna's position, the Gun is relevant in assessing the credibility of her testimony. Defendants indicate that they intend to argue that Chesna shot Devon Ross because he attempted to avoid arrest by grabbing Chesna, repeatedly striking her, and trying to disarm her. The fact that Devon Ross was driving the Car with the Gun loaded and easily accessible in violation of state law is relevant evidence in assessing whether Devon Ross acted in the unlawful manner as claimed by Chesna. The presence of the Gun shows a disregard for the law and gave Devon Ross a motivation to evade arrest because he potentially faced a weapons charge for the Gun.

Ross argues that if Devon Ross was so worried about getting charged for the Gun, it would not have been logical for Devon Ross to flee the Car and leave behind the Gun. However, once Devon Ross was being followed in the Car by Chesna and her partner in their squad car, Devon Ross reasonably could have feared that once he stopped, the Car would be searched and the Gun would have been discovered. It would not have been unreasonable for Devon Ross to flee on foot without the Gun and try and put as much distance between himself and the Gun as possible.

In addition, Defendants indicate that they intend to offer evidence showing that at the time of the Shooting, Devon Ross was intoxicated. In such a state, Devon Ross could have forgotten to grab the Gun when he fled on foot and subsequently realized his mistake. Also, while perhaps a rational person would not physically assault an officer in order to avoid a weapons charge, or would have understood that the Gun would have been traced to its source through the Car that was left behind, in an intoxicated state, Devon Ross may have made decisions that in hindsight appear be not one that a sober person may have made. Defendants also indicate that before fleeing on foot, Devon Ross crashed the Car into a building, which may have further disorientated him. The presence of the Gun in the Car is extremely relevant in a case such as this where credibility of the testimony of the arresting officer will be a key issue, and such evidence is not overly prejudicial to Ross.

In Estate of Escobedo v. Martin, 702 F.3d 388 (7th Cir. 2012), the Seventh Circuit explained that it had "cautioned... against an overly broad reading of" the holding in Sherrod. Id. at 399. The Court held that "evidence unknown to officers at the time force was used is also admissible to add credibility to an officer's claim that a suspect acted in the manner described by the officer." Id. at 400. Ross argues that Escobedo is limited to when a party opens the door to questioning about an issue such as the decedent's state of mind. (P Reply 4). Defendants are entirely justified in offering evidence that supports their theory of the case, which entails a state of mind by Devon Ross, that led him to physically assault and resist Chesna. If Ross attempts to portray Devon Ross acting in a manner entirely inconsistent with the testimony of Chesna, and contrary to the state of mind of Devon Ross that Defendants seek to prove at trial, Defendants should not be limited in their ability to rebut Ross's case. Ross has not shown any unwarranted prejudice to her.

Ross will be able to argue to the trier of fact regarding the weight that should be accorded to any evidence found in the Car. Ross can also request a limiting jury instruction as to consideration by the jury relating to the Gun. In addition, Defendants will not be permitted to display the Gun at trial in a manner that will be overly prejudicial to Ross. The court notes that Ross also argues that Defendants should not comment on a bottle of vodka found in the Car. However, Defendants do not ...

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