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Volland-Golden v. City of Chicago

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

September 7, 2016

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

          MEMORANDUM OPINION AND ORDER

          Milton I. Shadur Senior United States District Judge

         Madonna Volland-Golden, as executor of the estate of her late brother John Volland ("Volland"), is presently the plaintiff in this action originally brought by Volland against the City of Chicago (the "City") and two of its Police Officers, Sean Campbell and Steven Sautkus (for convenience, collectively "Defendant Officers"), in an action described in this fashion in the agreed-upon proposed case statement set out in the parties' joint final pretrial order ("FPTO"):

This is a civil rights claim case. The Plaintiff, Madonna Volland-Golden, represents the estate of her brother, John Volland, who died while this case was pending on May 31, 2014. His death is not in any way related to the claims of this case. Before his death, Mr. Volland brought this lawsuit, alleging that on February 25, 2012, the Defendants, who are Chicago police officers, unlawfully stopped his vehicle, falsely arrested him, used excessive force upon him, and unlawfully searched him and his car. Mr. Volland also alleged that Defendants caused him to be maliciously prosecuted for resisting arrest and battery, as well as a traffic violation and a City of Chicago ordinance violation. Defendants deny the allegations made by Plaintiff and deny any wrongdoing.

         In compliance with the scheduling order that was entered by this Court promptly after the conference at which the FPTO was reviewed and approved, the parties have submitted their motions in limine - 6 by plaintiff and fully 18(!) by defendants. With each side now having responded to the other side's motions, they are ripe for decision. This memorandum opinion and order will address plaintiffs motions first, then turn to defendants'.

         Plaintiffs Motions In Limine

         Because P. Motions 1 and 2 are closely intertwined, this opinion can address them as though they were a 1 and 1A entry in a thoroughbred race. Here are the two motions:

1. P. Motion 1 seeks "to bar evidence of past drug and alcohol use."
2. P. Motion 2 seeks "to bar evidence and testimony relating to David Schreck and Mark Schreck."

         Regrettably, defense counsel have responded with a tactic that to this Court is a highly reprehensible effort to forge an impermissible weapon as part of a litigator's arsenal by injecting a highly prejudicial argument into a case through rank speculation and then, when challenged, by contending that a cautionary jury instruction will suffice to eliminate the unfair prejudice.

         As to P. Motion 1, there is no question that Volland, as a young man in his 20s and early 30s - some two decades before his encounter with the Defendant Officers, who are charged here with violating his constitutional rights in the course of an arrest when he was 50 years old - struggled with alcohol addiction and a cocaine addiction as well. Family members - his sister (now the plaintiff as Executor of his estate) and his son - testified to his regular attendance at AA meetings as a recovering alcoholic and to their unawareness of any relapses on his part as to either of his earlier addictions.[1]

         It is undisputed that the Defendant Officers had no knowledge of Volland's early history in that respect at the time of the encounter that gave rise to this lawsuit. In that regard the principles that define the only facts relevant to Volland's excessive force claim are those stated nearly a quarter century ago in Sherrod v. Berry, 856 F.2d 8021, 805 (7th Cir. 1998) and repeated by various District Judges since then:

Knowledge of facts and circumstances gained after the fact. . . has no place in the trial court's or jury's proper post-hoc analysis of the reasonableness of the actor's judgment. Were the rule otherwise, as the trial court ruled in this instance, the jury would possess more information that the officer possessed when he made the crucial decision. . . . The reception of evidence or any information beyond that which Officer Berry had and reasonably believed at the time he [acted] is improper, irrelevant and prejudicial to the determination of whether Officer Berry acted reasonably "under the circumstances." And the same is true as to other Section 1983 claims such as those charging false arrest

(Williams v. City of Chicago, 733 F.3d 749, 756 (7th Cir. 2013)) and unlawful search (United States v. Williams, 627 F.3d 247, 251 (7th Cir. 2010)).

         As to the use of drugs in particular, although District Court opinions are of course nonprecedential, what this Court repeated in Gregory v. Oliver, No. 00 C 5984, 2003 WL 1860270 at *l-*2 (Apr. 9, 2003) might well have been written for this case:

In today's climate, any evidence as to a litigant's use of drugs has an obvious potential for being extraordinarily prejudicial - for creating the prospect of deflecting the factfinders' attention from the matters that are really at issue in the case to everyone's universally-shared concerns as to the problems that drug usage is creating for our society. For that reason, where (as here) the subject matter of a trial does not itself concern controlled substances it is particularly appropriate to apply the principle announced in such cases as Jarrett v. United States, 822 F.2d 1438, 1446 (7th Cir. 1987):
A witness's use of drugs may not be used to attack his or her general credibility, but only his or her ability to perceive the underlying events and testify lucidly at the trial.

         In sum, then, the truly relevant fact is that no fact was known to either of the Defendant Officers as to any drug-related impairment (or for that matter, any impairment of any type) on Volland's part at the time that is at issue in this litigation. And even had that not been the case, any effort to shoehorn such testimony into the case would contravene both Fed.R.Evid. ("Evid. Rule") 404(a)(1) and (b)(1) and, to boot, Evid. Rule 403. Hence P. Motion 1 must be and is granted.

         As for P. Motion 2, here is what Defendants' Amended Joint Rule 26(a) Disclosures said as to the potential for testimony from Mark Schreck (whose son David, who was seen by Volland at an AA meeting earlier in the evening on which the events at issue in this action transpired, is now deceased):

Mark Schreck, 5101 S. Mobile, Chicago, IL, (773) 458-0538: May have knowledge of Plaintiff, including his past drug and/or alcohol use and recent relapse. Mark Schreck may have knowledge of Plaintiff s association with Schreck's son, David Schreck, and the fact that David Schreck has and may still live with Plaintiff. Mark Schreck may have knowledge of the relationship between Plaintiff and David Schreck, including as it relates to drug possession and/or use. Mark Schreck may have knowledge of threats that Plaintiff has made toward Schreck and other in the past.

         What has been said earlier torpedoes any such proffered testimony as well, not only because of the already-stated lack of relevance but also because of its totally speculative nature. So P. Motion 2 is granted as well.

         P. Motion 3 seeks an "order regarding use at trial of Defendants' judicial admissions, " a motion that seeks to include in that category statements taken directly from defendants' Amended Answer to the Complaint in this action. Even though defendants concede the uncontested status of those admissions, they objected to their inclusion in the FPTO's statement of uncontested facts on grounds that this Court finds difficult to ...


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