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Volland-Golden v. City of Chicago

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

February 27, 2015

MADONNA VOLLAND-GOLDEN, as executor of the estate of JOHN VOLLAND, Plaintiff,
CITY OF CHICAGO, et al., Defendants

For John Volland, Plaintiff: Elizabeth Roslyn Uribe, The Hamilton Law Office, Chicago, IL; Erin Mccurdy Levy, Thomas Patrick Needham, Law Office Of Thomas P. Needham, Chicago, IL; Torreya Lyn Hamilton, Hamilton Law Office, LLC, Chicago, IL.

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Milton I. Shadur, Senior United States District Judge.

This 42 U.S.C. § 1983 (" Section 1983" ) action was originally brought by John Volland (" Volland" ) to charge that two City of Chicago police officers (the " Officers" ) had violated his federal constitutional rights and some related Illinois law rights as well: in federal terms, claims of (1) unlawful search and seizure, (2) the federal equivalent of false arrest, (3) conspiracy and (4) excessive force, and in state law terms, malicious prosecution and battery.[1] Volland has also named the City of Chicago (the " City" ) as a defendant under theories of respondeat superior (as to asserted violations of state law) and indemnification (as to asserted violations of Section 1983).

Now before this Court for resolution are the parties' cross-motions in limine (and their respective responses to those motions) on the question whether Volland's testimony at an earlier criminal trial is properly admissible in this civil action.[2] For the reasons set out in this opinion, this

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Court finds Volland's prior testimony to be admissible under Fed.R.Evid. (" Rule" ) 804(b)(1).

Factual Background

This case concerns a February 25, 2012 traffic stop gone wrong and its aftermath. Volland's and defendants' accounts of the facts diverge widely.

Volland asserts (1) that while he was driving on a side street near his home the Officers stopped him without any reasonable suspicion that he had violated any law or ordinance, (2) that after arguing with the Officers he said he was going to call their supervisor and (3) that the Officers prevented him from doing so by spraying him with pepper spray, dragging him from the car, beating him while he was handcuffed and then arresting him (see generally Volland Test. 95:20-122:12[3]). Volland asserts that the Officers then filed false police reports to the effect that Volland had accosted them, which in turn caused the State of Illinois and the City to bring false charges against him (see Compl. ¶ ¶ 56-66).

Although defendants do not present their side of the story in as much detail (nor are they required to at this stage of the litigation), it appears to be their contention (1) that the Officers stopped Volland because he was driving on the wrong side of the street, (2) that he was hostile when the Officers approached his car, refusing to produce his driver's license, (3) that he reached out of his car window to push one of the Officers and (4) that the Officers then executed an arrest of Volland, which required the use of pepper spray and a takedown maneuver due to his physical resistance to their attempts to remove him from the car and handcuff him (see generally Sautkus Test. 21:3-26:23). Clearly, given that account of the facts, the Officers also assert that their police report was not falsified.

What happened next is not in material dispute. On January 28, 2013 the City dismissed its charges that Volland had committed a traffic violation and disobeyed a police officer (Amended Answer (" AA" ) ¶ 38). Also on that date, Volland stood trial before a jury on the state charges of resisting a peace officer and simple battery (id. ¶ ¶ 34, 39). Volland testified at length about his version of events (summarized above), and a Cook County Assistant State's Attorney (" ASA" ) cross-examined him, asking about 80 distinct questions (see Volland Test. 122:16-141:13). Only three witnesses -- Volland and the two officers -- testified at the trial, so that the jury was called upon to decide whom to believe. Volland was acquitted on all charges (AA ¶ 39).

On February 25, 2013 Volland filed this lawsuit. On May 31, 2014 he died of natural causes at his home (V. Motion To Substitute Parties ¶ 2 (Dkt. 73)). Volland's sister, as executor of his estate, has continued this litigation in his stead.

It is because of Volland's death that the admissibility of his testimony at the criminal trial has become a pressing concern. Volland's estate has understandably moved to admit his testimony in the 2013 criminal trial as evidence in the trial of this action. Defendants counter that Volland's testimony at the criminal trial is hearsay not falling within an exception.

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Rule 804(b)(1)

More specifically, Volland and defendants lock horns over the admissibility of Volland's prior testimony under Rule 804(b)(1). Rule 804 provides numerous exceptions to Rule 802's bar of hearsay evidence, with the one pertinent here (Rule 804(b)(1)) reading:

(b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:
(1) Former Testimony. Testimony that:
(A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and
(B) is now offered against a party who had -- or, in a civil case, whose predecessor in interest had -- an opportunity and similar motive to develop it by direct, cross-, or redirect examination.

No one disputes that Volland is unavailable to testify, that his prior testimony was given at one of the enumerated proceedings (a criminal trial) or that the State had a full opportunity to cross-examine him during that proceeding. Instead the parties cross swords over two matters: whether the State can properly be considered a predecessor in interest to defendants (and especially to the Officers) and whether the State had a similar motive to develop Volland's testimony by cross-examination. This opinion will address the more uncertain predecessor-in-interest question before turning to the similarity of the motives of defendants and the State.

No definition of " predecessor in interest" is provided in the Rules. If the term were to be viewed through the lens of garden-variety English speech, it would almost tautologically be broad enough to cover the State's relationship to defendants. Like the more generic dictionaries, Black's Law Dictionary 1216 (8th ed. 2004) straightforwardly defines a " predecessor" as " [o]ne who precedes another in an office or position." And the primary definition of " interest" in Black's, id. at 828 is " [t]he object of any human desire." So a " predecessor in interest," in its most literal sense, is simply one who precedes another in desiring a particular object. And here the State clearly meets that definition in relation to defendants. It preceded them as the party opposing Volland, and it desired the same object that ...

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