United States District Court, N.D. Illinois, Eastern Division.
MICHAEL A. LaPORTA, as Guardian of the Estate and Person of Michael D. LaPorta, a disabled person, Plaintiff,
CITY OF CHICAGO, a municipal Corporation, and GORDON LOUNGE, INC., d/b/a McNALLY’S, Defendants.
MEMORANDUM OPINION AND ORDER
D. LEINENWEBER, JUDGE.
the Court are two Motions filed by Plaintiff Michael A.
LaPorta and related to discovery in his case: a Motion to
Compel the deposition of the Mayor of Chicago, Rahm Emanuel
[ECF No. 101]), and a Motion for Sanctions [ECF No. 113]. For
the reasons stated herein, the Motions are denied.
case involves state-law and federal constitutional claims
brought by Michael A. LaPorta on behalf of his disabled son,
Michael D. LaPorta (“LaPorta”). The Court
incorporates a discussion of the underlying facts contained
in its prior opinion, LaPorta v. City of Chicago,
102 F.Supp.3d 1014 (N.D. Ill. 2015). A few facts salient to
the present discovery disputes are recounted here.
was seriously injured while at the home of Patrick Kelly, a
Chicago Police Department (“CPD”) officer, in
January 2010. Kelly was intoxicated, his service weapon was
discharged (it is unclear how), and the bullet struck LaPorta
in the back of the head. Plaintiffs allege Kelly was a
troubled CPD officer with a long history of having complaint
registers (“CR’s”) lodged against him.
LaPorta initially filed suit in the Circuit Court of Cook
County in 2010. After several years of litigation and what
LaPorta contends were obstructionist tactics on the part of
the City, the case was removed to federal court, survived a
motion to dismiss, and is now proceeding through discovery.
brings a claim pursuant to Monell v. Dept. of Social
Servs., 436 U.S. 658 (1978), alleging that his
constitutional rights were violated due to a widespread
practice by the City of Chicago of failing to discipline its
CPD officers and encouraging officers to cover up misdeeds.
There are other claims, but the Monell claim is the
one most relevant to the present disputes.
Motion to Compel
first Motion, LaPorta asks the Court to compel the deposition
of Mayor Rahm Emanuel (“Emanuel”). As mayor of
the nation’s third-largest city, Emanuel holds a unique
position and “should not be taken away from his work to
spend hours or days answering lawyers’ questions unless
there is a real need.” Olivieri v. Rodriguez,
122 F.3d 406, 409 (7th Cir. 1997). LaPorta argues that
Emanuel’s deposition is necessary to prove the
Monell claim, due to Emanuel’s public
statements referring to CPD’s problem with “the
thin blue line, ” also known as the “code of
silence.” Emanuel publically stated that the code of
silence “leads to a culture where extreme acts of abuse
are more likely, ” and he created a task force intended
to review potential CPD misconduct, including past incidents
of misconduct. The task force later echoed and expounded on
the Mayor’s statements regarding CPD’s code of
order to prove his Monell claim, LaPorta must show
that a code of silence existed and constituted “a
widespread practice that was so permanent and well-settled as
to constitute a custom or usage with the force of law, even
though there was no express municipal policy or law
authorizing the practice.” McCormick v. City of
Chicago, 230 F.3d 319, 323-24 (7th Cir. 2000). Mayor
Emanuel’s public statements on the matter are relevant
proof of that claim, weighing in favor of LaPorta’s
wish to depose him. The City responds that Emanuel has no
personal knowledge of the facts underlying the incident at
Kelly’s house, but that is irrelevant to the
Monell claim against the City, and the parties
easily could agree to limit the subject matter of a
deposition to the code of silence and Emanuel’s
knowledge of CPD’s practices and culture.
City also contends that because Emanuel was not in office at
the time of the incident in 2010, any evidence he might have
about CPD policy is automatically inadmissible. That argument
fails also; the City does not provide any logical support for
it, and Emanuel’s task force was formed to investigate
past events, including those that occurred before he took
office. When a new mayor is sworn in, there are certainly
some changes in the City’s administration, but the
slate is not wiped clean. Most police officers, for example,
keep their jobs. The Mayor reasonably could have knowledge of
a widespread practice in the CPD that has bearing on
LaPorta’s allegations from 2010. Indeed, Emanuel did
not limit his statements regarding the code of silence to his
own tenure in office.
City’s next argument is that Mayor Emanuel is not a
policymaker for the City. It’s hard to take that
position seriously. Common sense suggests that the Mayor has
considerable authority and influence over the police
department. The lone case the City cites for support,
Chicago United Industries v. City of Chicago, 739
F.Supp.2d 1043, 1057 (N.D. Ill. 2010), simply observed that
the Chicago City Council has policymaking authority for the
City, and held that the City’s Chief Procurement
Officer was not a final policymaking authority relevant to a
First Amendment claim. That has nothing to do with whether
the Mayor of Chicago possesses “authority to adopt
rules for the conduct of government, ” which is the
relevant question here. See, Auriemma v. Rice, 957
F.2d 397, 401 (7th Cir. 1992) (internal citations omitted).
Indeed, Emanuel’s creation of a special task force to
address what he observed as a problem within the CPD suggests
that he exercises some degree of policymaking authority. Note
that the Court does not intend to say that Emanuel is the
final policymaker for Monell purposes; that issue is
beside the point, because LaPorta need not identify an
individual with “final policymaking authority” to
succeed on his Monell claim. See, Kujawski v.
Board of Commissioners, 183 F.3d 734, 737 (7th Cir.
1999) (describing the three distinct methods for proving a
municipal policy or custom under Monell).
City does make one convincing argument against the motion:
LaPorta has not shown that the information he seeks from
Emanuel’s deposition is unavailable by other means. At
this point, it is unclear how LaPorta intends to use
Emanuel’s statements. Obviously he believes they are
relevant to the Monell claim, and that seems
correct. But why is the introduction of Emanuel’s
public remarks regarding the code of silence insufficient to
prove LaPorta’s point? What more is he searching for in
his quest to depose the Mayor? What specific reason does he
have to believe that the deposition “will produce or
lead to admissible evidence?” Olivieri, 122
F.3d at 410.
Court can imagine situations in which there could be a
“real need” under Olivieri for the
deposition, but LaPorta’s Motion to Compel is
premature. Aside from a failure to answer questions about
what he intends to gain from the deposition, LaPorta has not
even attempted to serve interrogatories on Emanuel. That
omission by itself is enough to warrant the denial of the
Motion to Compel the deposition. See, Olivieri, 122
F.3d at 410. The Court thus denies LaPorta’s Motion to
compel without prejudice. He may renew the Motion at a later
date, if other methods of discovery fail him. The Court
cautions LaPorta that should he renew the Motion, he should
provide a better argument for “real need” besides
“the deposition is relevant to my Monell
claim.” That is essentially ...