United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION and ORDER
YOUNG B. KIM, Magistrate Judge.
Plaintiff Michael Dyson brings this civil rights action against Defendant Sergeant Timothy Szarzynski under 42 U.S.C. § 1983, claiming that Szarzynski violated his constitutional rights by subjecting him to false arrest and malicious prosecution. Dyson also asserts that Defendant City of Chicago has an obligation to indemnify Szarzynski if a judgment is entered for compensatory damages in favor of Dyson and against Szarzynski. According to Dyson, he was standing in the area of the 1100 block of West 88th Street in Chicago, Illinois, on August 9, 2012, when Szarzynski, who was responding to "reports of shots fired, " approached him and recovered a handgun nearby. (R. 6, First Am. Compl. ¶¶ 5-7.) Szarzynski then placed Dyson under arrest and charged him with possessing the weapon. Dyson was ultimately acquitted of the possession charge. (Id. ¶¶ 10-12, 17.) The parties have consented to the jurisdiction of this court. (R. 19); see 28 U.S.C. § 636(c). Before the court are Dyson's motions in limine Nos. 1-8, Szarzynski's motions in limine Nos. 1-6, and agreed motions in limine Nos. 1-9. For the following reasons, Dyson's motion Nos. 1, 3, 4, and 6-8 are granted, Dyson's motion No. 2 is denied as moot, Dyson's motion No. 5 is granted in part and denied in part, Szarzynski's motion No. 1 is denied without prejudice, Szarzynski's motion Nos. 2-4, and 6 are granted, Szarzynski's motion No. 5 is granted in part and denied in part, and agreed motion Nos. 1-9 are granted:
Although not expressly authorized by the Federal Rules of Evidence, the authority to make rulings on motions in limine springs from the court's inherent authority to manage trials. Luce v. U.S., 469 U.S. 38, 41 n.4. (1984); Jenkins v. Chrysler Motors Corp., 316 F.3d 663, 664 (7th Cir. 2002). Motions in limine are employed to "exclude evidence before trial in order to prevent the trial from being interrupted by wrangles over admissibility or the jury from getting a whiff of prejudicial evidence that may in fact be inadmissible." American Int'l Adjustment Co. v. Galvin, 86 F.3d 1455, 1463 (7th Cir. 1996). But because the primary aim of in limine motions is to exclude evidence that is inadmissible on any ground, some rulings are best deferred until trial so that the context, foundation, and relevance of the contested evidence can be better understood. Anglin v. Sears, Roebuck & Co., 139 F.Supp.2d 914, 917 (N.D. Ill. 2001). As such, neither a ruling granting a motion in limine, nor a ruling denying one, needs to be the final word on the matter. The court is free to revisit the following rulings during trial. Luce, 469 U.S. at 41-42.
A. Dyson's Motions in Limine
1. Motion No. 1 to Bar Argument or Mention of Police Officers Risking Their Lives on the Job
Dyson seeks to prevent Szarzynski from making "general argument or mention" of police officers risking their lives on the job. (R. 47.) He argues that the risks endured by police officers do not have any bearing on whether there was probable cause to arrest him, or whether he was prosecuted maliciously. In particular, Dyson expresses concern that such evidence will violate Federal Rule of Evidence 404(b) because it is "a masked method of implying that police officers are heroes." (Id. at 2.) Szarzynski responds that his beliefs about his own personal danger are relevant because those risks "influenced [his] judgment and responses [on] the day in question." (R. 65, Resp. at 1.)
The court agrees with Dyson that risks faced by police officers in general do not have any tendency to make any consequential facts in this particular action more or less likely. Neither a claim for false arrest nor malicious prosecution relates to police officers risking their lives on the job. To the contrary, "heroizing" the deeds of police officers might unfairly sway a jury into the consideration of matters outside the scope of fact finding. See, e.g., Battle v. O'Shaughnessy, No. 11 CV 1138, 2013 WL 3984463, at *6 (N.D. Ill. Aug. 2, 2013). Accordingly, Dyson's motion No. 1 is granted.
2. Motion No. 2 to Bar the Use of the City's Citizen Law Enforcement Analysis and Reporting Database
In his motion in limine No. 2, Dyson sought to bar Szarzynski from using the City's Citizen Law Enforcement Analysis and Reporting ("CLEAR") database to conduct background checks on potential jurors during and after jury selection to verify the honesty of their responses to voir dire questions regarding their arrest and conviction histories. (R. 48.) Dyson argued that Szarzynski's use of CLEAR to vet those responses would be "unfair and inappropriate" because he himself did not "have the access to publicly funded, but secretly maintained information databases such as CLEAR and LEADS." (Id. at 2.) In response, Szarzynski explained that his plan is to perform the background check using CLEAR before the jury selection and then to share the results of the check with Dyson and the court. (R. 62, Resp. at 2.) In light of Szarzynski's representation in his response to the motion, Dyson withdrew his motion opposing the use of CLEAR. (R. 76.)
Despite Dyson's change in stance, the court held a hearing on November 18, 2014, to receive more information about how and when the proposed background check is to be performed within the context of the court's jury selection protocol, and to note its own reservations about performing background checks of potential jurors. (R. 88.) During the hearing Dyson expressed general concerns about performing juror background checks and the possibility that Szarzynski may conduct selective checks to remove African American jurors. Despite his concerns, in light of Szarzynski's representation that he would share all information gleaned from the CLEAR database and that a check would be conducted on all potential jurors, Dyson did not renew his opposition to the use of the CLEAR database. The court nonetheless comments briefly here to air its concerns regarding the propriety of this practice and to establish parameters regarding Szarzynski's proposed use of the CLEAR database during voir dire.
The propriety of allowing a litigant in a civil case to access police databases to perform background checks on potential jurors and to use such information during voir dire is an unsettled question in this district. In a number of fairly recent cases, civil rights plaintiffs have challenged the City's use of juror background checks during voir dire. See, e.g., Logwood v. City of Chicago, No. 11 CV 4932, 2013 WL 1385559 (N.D. Ill. Apr. 4, 2013); Padilla v. City of Chicago, No. 06 CV 5462, 2013 WL 6354169 (N.D. Ill.Dec. 3, 2013); Hill v. City of Chicago, No. 06 CV 6772, Minute Entry 562 (N.D. Ill. June 30, 2011); Anderson v. City of Chicago, No. 09 CV 2311, 2011 WL 2292327 (N.D. Ill. June 9, 2011); and Davis v. Colon, No. 08 CV 5130, Minute Entry 71 (N.D. Ill. June 6, 2011). In some of these cases, the City was allowed to conduct the background checks. See Logwood, 2013 WL 1385559 at *1 (allowing the checks because the plaintiff "cite[d] no controlling precedent [holding] that parties are barred from running background checks on potential jurors"); Davis, No. 08 CV 5130, Minute Entry 71 (allowing the background checks but requiring that the check "comport with the court's jury selection process, [and requiring that] all results... be shared"). In other instances, background checks were not allowed, either based on concerns that using a law enforcement database in connection with a civil case may violate the administrative regulations restricting its use to "law enforcement purposes, " see Padilla, 2013 WL 6354169, at *4-5, or based on logistical concerns that the background checks could result in jurors being removed after the trial had begun, see Hill, No. 06 CV 6772, Minute Entry 562. But none of these rulings fully flesh out the benefits and pitfalls of allowing officer defendants or the City to access police databases to verify potential jurors' voir dire answers.
One potential pitfall of juror background checks is that prospective jurors might come to the conclusion that all information that can be gathered ought to be gathered, regardless of the court's prohibition against independent juror research. This concern is expressed by Caren M. Morrison, Can the Jury Trial Survive Google, 25 WTR Crim. Just. 4, 15 (2011), who argues that judicial tolerance of increasingly invasive probes into jurors' backgrounds may cause jurors to "feel entitled to do a bit of research on their own just to balance the scales." Elaborating on Morrison's point, if jurors perceive that nothing is to be taken on trust, they may withhold their trust from the lawyers or even from the court by attempting to ascertain answers for themselves through independent investigations. In other words, it is possible for attorneys and courts to overplay their hands in the quest for an impartial jury.
Another potential pitfall is that a defendant's use of a police database to run juror background checks could create an unfair imbalance in information that would allow the defendant to preserve its preemptory strikes by marshalling the database results to strike jurors for cause. That concern is not a trivial one given the Supreme Court's holding in another context that depriving a party of the ability to make a for-cause challenge to a member of the venire may be grounds for a new trial. See McDonough Power Equip. Inc. v. Greenwood, 464 U.S. 548, 555-56 (1984). Szarzynski's offer to share the results of its background checks with Dyson and with the court would likely solve the information-mismatch problem here. In fact, it was Szarzynski's offer to openly share the information that prompted Dyson to withdraw his motion.
The court remains concerned that despite the parties' seeming agreement on the anticipated use of the information gleaned from a juror background check, allowing the practice might confer a measure of judicial authority to the CLEAR database, in spite of the fact that the court lacks meaningful information about its history, architecture, or accuracy. In other words, by approving the shared use of CLEAR as part of voir dire, it may appear that the court condones a use of technology for a purpose not intended by its designers, and in so doing may be perceived to lend judicial endorsement to a tool that may or may not accurately uncover juror dishonesty. Neither side has attempted to explain why the CLEAR database should be considered an accurate and reliable source of a potential juror's identity and arrest record.
Notwithstanding Dyson's acquiescence to the use of the database as long as search results are shared, this court is sensitive to the fairness concerns articulated by Dyson and by others similarly situated in cases like this. Certainly, the practice of performing juror background checks as proposed implicates a power imbalance for plaintiffs who do not have access to CLEAR and who must simply trust the party they are suing to conduct an honest, thorough, and accurate search. Additionally, the concerns expressed in Hill and Padilla about the authority for using "law enforcement only" databases to defend civil cases may be valid ones. Moreover, this court is troubled by the possibility that voir dire background checks generally might undermine or supplant the established practices of jury selection in this country. The process of jury selection relies on potential jurors to answer voir dire questions honestly. Using CLEAR or similar databases to verify some of their responses may send an unwanted message to potential jurors that the court does not trust them or that the potential jurors' oath that they are to answer all questions truthfully and the oath administered to the trial witnesses are meaningless. Plus, the use of criminal background checks might seem intrusive to potential jurors and might have a chilling effect on their willingness to participate in the jury process. Notably, the potential jurors are not reporting for duty voluntarily but by summons.
But the prospect of real-time juror background checks during voir dire is not without its benefits, and the threat of juror bias to the justice system is not a bogeyman. Indeed, high-profile criminal trial of former Governor of Illinois George Ryan exemplified the sort of legal misadventure decried by proponents of juror background checks. See United States v. Warner, 498 F.3d 666, 674 (7th Cir. 2007). In Warner, after a six-month trial, a jury began to deliberate the fates of former Governor Ryan and a co-defendant on various criminal charges. Id. at 675. But the jury deliberations proved to be tumultuous, especially when-on the eighth day of deliberation-various media reports emerged that a juror had given untruthful answers on the court's initial juror questionnaire. Id. at 676. And, as time progressed, details emerged that multiple jurors supplied the court with incorrect information about prior brushes with the law. Id. at 677. Although the district court ultimately dismissed several jurors, replaced them with alternates, and forced the reconstituted jury panel to begin deliberations anew, dishonest juror answers jeopardized the entire trial and threatened to lay waste to vast time expenditures and fees incurred by the parties. See id. at 677. Some journal authors have argued that the Ryan trial debacle is evidence that closer scrutiny of jurors during voir dire is warranted. See Eileen E. Rosen & Catherine M. Barber, Criminal Background Checks of Prospective Jurors, 60-Jun Fed. Law. 54, 55-56 (2013) (suggesting that the problems of the Ryan trial could have been avoided with background checks during voir dire ). Rosen and Barber also make judicial efficiency arguments in favor of juror background checks and conclude that these checks should be embraced by the courts because "as long as any courts deny parties the opportunity to conduct juror background checks, extensive post-verdict litigation will persist and verdicts will remain in limbo." Id. at 56. In slightly different contexts, other scholars have stressed that the privacy interests of jurors should not be overvalued in relation to the ultimate goal of impartial justice. See Karen Monson, Privacy ...