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Owens v. Ellison

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

March 28, 2017

D-JUAN OWENS, Plaintiff,
v.
P.O. Ellison, et al., Defendants.

          MEMORANDUM AND OPINION ORDER

          Robert M. Dow, Jr. United States District Judge.

         Plaintiff D-Juan Owens brings this civil rights action under 42 U.S.C. § 1983 alleging that Defendant Steven Kelley[1] used excessive force against him in effectuating an arrest and that Defendant Joseph Ellison observed this alleged use of force and failed to intervene despite the opportunity to do so. Plaintiff also brings a Monell claim against the City of Harvey, which has been bifurcated. [76.] Before the Court are Plaintiff's motions in limine [68] and Defendants' motions in limine [60], [61], [62], [63], [64], [66], and [67]. For the reasons set forth below, Plaintiff's motions in limine [68] are granted in part and denied in part: the Court grants Plaintiff's motions No. 1, 2, 4, 7, 8, and 11; the Court grants in part and denies in part Plaintiff's motions No. 3, 5, and 6; and the Court denies Plaintiff's motions No. 9 and 10.

         Defendants' motions in limine also are granted in part and denied in part: the Court grants Defendants' motions No. 3 [62], 4 [63], and 7 [67]; the Court grants in part and denies in part Defendants' motions No. 1 [60], 2 [61], and 5 [64]; and the Court denies Defendants' motion No. 6 [66]. This case remains set for a jury trial to commence on April 3, 2017. The Court directs the parties to submit revised exhibit lists that take into account the Court's rulings above no later than 12:00 p.m. (noon) on March 31, 2017. As discussed at the final pretrial conference, to the extent that objections remain to any proposed exhibits that the parties wish to use as substantive evidence, [2] the parties must provide a chart setting out the number of the exhibit, a more detailed summary of the objection, and the response to the objection no later than 12:00 p.m. (noon) on March 31, 2017.

         I. Background

         Plaintiff alleges that on or about October 23, 2011, he was in the vicinity of 147th Street and Ashland Avenue in Harvey, Illinois after running from the police. [29 (First Amended Complaint), at ¶ 5.] He contends that he hurt his ankle as he was going over a fence, and then surrendered and was no threat to the Defendants Ellison and Kelley, who are Harvey police officers. [Id. at ¶¶ 6-7.] According to Plaintiff, without any reasonable cause, Defendant Kelley struck him on the back of the head. Plaintiff alleges that he was then on his knees, when he was struck on the front of his head. He contends that he covered his face and head with his hands and arms as one or more of the Defendants continued to strike him. Plaintiff alleges that one or more of the Defendants continued to strike him with an object, injuring his arms and wrist, and that Defendant Kelley continued to kick and stomp on him. [Id. at ¶¶ 8-12.] Plaintiff asserts that Defendants' use of force was unprovoked, excessive, and unreasonable. [Id. at ¶¶ 13-14.] Plaintiff alleges that Defendant Ellison stood by and allowed the continued excessive use of force and attacks to occur even though he could have intervened. [Id. at ¶ 15.] According to Plaintiff, as a result of Defendants' conduct, he was severely injured and suffered permanent disfigurement. [Id. at ¶¶ 16, 20.] Defendants deny striking Plaintiff. [31 (Answer to Amended Complaint).]

         On October 13, 2013, Plaintiff filed the instant lawsuit, bringing an excessive force claim against Defendants Kelley and Ellison, a Monell claim against the City of Harvey (“the City”), see Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1976), and a claim for indemnification. On March 7, 2017, the Court granted the City's motion [59] to bifurcate Plaintiff's Monell claim against the City from the claims against the individual Defendants. [76.] A jury trial is set to begin on April 3, 2017.

         II. Legal Standard

         A motion in limine is a motion made “at the outset” or “preliminarily.” Black's Law Dictionary 803 (10th ed. 2014). Motions in limine may be used to eliminate evidence “that clearly ought not be presented to the jury because [it] clearly would be inadmissible for any purpose.” Jonasson v. Lutheran Child & Family Svcs., 115 F.3d 436, 440 (7th Cir. 1997). The party seeking to exclude evidence “has the burden of establishing the evidence is not admissible for any purpose.” Mason v. City of Chicago, 631 F.Supp.2d 1052, 1056 (N.D. Ill. 2009). The power to rule on motions in limine inheres in the Court's role in managing trials. Luce v. United States, 469 U.S. 38, 41 n.4 (1984). Because motions in limine are filed before the Court has seen or heard the evidence or observed the trial unfold, rulings in limine may be subject to alteration or reconsideration during the course of trial. United States v. Connelly, 874 F.2d 412, 416 (7th Cir. 1989).

         III. Plaintiff's Motions in Limine [68]

         A. Plaintiff's Motion No. 1: Jury as Taxpayers Plaintiff moves to bar any arguments that appeal to jurors' pecuniary interests as taxpayers. Defendants assert that they do not intend to make any such arguments. Thus, this motion is granted.

         B. Plaintiff's Motion No. 2: Bar Non-Party Witnesses from Courtroom Plaintiff moves to exclude non-party witnesses from being present in the courtroom prior to their testimony. Defendants do not object to this motion and assert that they expect the same from Plaintiff. Thus, this motion is granted, and non-party witnesses from either side are not to be present in the courtroom prior to their testimony.

         C. Plaintiff's Motion No. 3: Plaintiff's Prior Bad Acts Plaintiff moves to bar reference to (1) his prior arrests that did not result in conviction, (2) his criminal conviction, (3) his illegal drug use, (4) his alleged prior gang affiliation.

         1. Prior Arrests that Did Not Result in Conviction Defendants assert that they do not intend on introducing evidence of Plaintiff's prior arrests that did not result in convictions, unless Plaintiff opens the door. To this end, Plaintiff's motion is granted in part: Defendants are barred from introducing evidence of Plaintiff's prior arrests that did not result in conviction, unless Plaintiff opens the door by testifying that he does not have a prior criminal history.

         2. Prior Criminal Convictions

         Plaintiff seeks to bar reference to a 2011 conviction for driving on a suspended/revoked license, a 2010 misdemeanor battery conviction, an October 2009 conviction for possession of a controlled substance, a February 2009 conviction for possession of cannabis, and an October 2007 conviction for possession of cannabis. Plaintiff argues that his prior convictions are “entirely irrelevant to the underlying dispute herein and in no way impugn his credibility as a witness.” [68, at 6.] Defendants assert that the only prior conviction they seek to admit is Plaintiff's February 2009 conviction for possession of between 30-500 grams of cannabis (08C66108101).[3] Defendants argue that it is permissible to admit evidence of prior convictions to impeach Plaintiff's credibility.

         Federal Rule of Evidence 609 provides that for a crime punishable by death or by imprisonment for more than one year, the evidence of the criminal conviction must be admitted, subject to Rule 403, in a civil case. See Fed.R.Evid. 609(a)(1)(A). Rule 403, in turn, provides that the Court may exclude relevant evidence if its probative value is substantially outweighed by a danger of unfair prejudice. Fed.R.Evid. 403.

         The Seventh Circuit has elucidated a five-part test in criminal cases to guide the district court in the exercise of its discretion in determining whether the probative value of a conviction outweighs its prejudicial effect: (1) the impeachment value of the prior crime; (2) the point in time of the conviction and the witness's subsequent history; (3) the similarity between the past crime and the charged crime; (4) the importance of the witness's testimony; and (5) the centrality of the credibility issue. See United States v. Montgomery, 390 F.3d 1013, 1015 (7th Cir. 2004). “While not all of those factors will apply in civil cases, the same general concerns may illuminate the court's analysis.” Buchanan v. McCann, 2012 WL 1987917, at *1 (N.D. Ill. June 4, 2012) (citing Anderson v. City of Chicago, 2010 WL 4928875, at *2-3 (N.D. Ill. Nov. 30, 2010)). The Seventh Circuit has also cautioned district courts to “be careful to ensure that a civil rights plaintiff's criminal past is not used to unfairly prejudice him or her.” Gora v. Costa, 971 F.2d 1325, 1331 (7th Cir. 1992).

         On balance, the five factors set forth above weigh in favor of admitting the fact, but not the nature, of Plaintiff's February 2009 conviction for possession of cannabis. As to the first factor, the fact that Plaintiff is a felon has some, but not strong, impeachment value given the nature of Plaintiff's February 2009 crime. In general, “[r]ule 609 rests ‘on the common-sense proposition that a person who has flouted society's most fundamental norms, as embodied in its felony statutes, is less likely than other members of society to be deterred from lying under oath in a trial by the solemnity of the oath, the (minuscule) danger of prosecution for perjury, or internalized ethical norms against lying.'” Cartwright v. City of Chicago, 2013 WL 3984434, at *1 (N.D. Ill. Aug. 2, 2013) (quoting Campbell v. Greer, 831 F.2d 700, 707 (7th Cir. 1987)). This general principle applies here even though Defendants have not cited cases demonstrating specifically that convictions for possession of a controlled substance implicate a party's truthfulness. On the other hand, the conviction poses some risk of prejudice to Plaintiff due to the nature of the crime.

         Turning to the second factor, the February 2009 conviction is eight years old. Under Rule 609(b), convictions more than ten years old are admissible only if the Court determines “that the probative value of the conviction * * * substantially outweighs its prejudicial effect.” Fed. R. Evid 609(b); United States v. Redditt, 381 F.3d 597, 601 (7th Cir. 2004). Here, the February 2009 conviction is within the last ten years and therefore does not fall into the Rule 609(b) limitation. The third factor is not relevant in civil cases. As to the fourth factor, Plaintiff's testimony will be critical in this case because Plaintiff is a key witness to his own alleged beating and the jury will be required to determine whether it finds Plaintiff's version of the facts more plausible than Defendants' version. For the same reason, the fifth factor-the centrality of the credibility issue-weighs in favor of admitting Plaintiff's February 2009 conviction. See United States v. Grant, 396 F.3d 906, 909-910 (7th Cir. 2005) (concluding that given defendant's theory that he possessed a pipe, not a gun, his credibility was crucial and therefore, impeachment with eight year old conviction for drug crime was proper); United States v. Montgomery, 390 F.3d 1013, 1016 (7th Cir. 2004) (holding that the district court correctly recognized that defendant's credibility was central to the case and impeachment with prior drug conviction was proper).

         Considering these factors together, the Court denies in part Plaintiff's motion in limine and concludes that evidence of Plaintiff's February 2009 felony conviction is admissible under Rule 609(a)(1)(A) but should be limited and sanitized to reduce the risk of prejudice to Plaintiff. See Schmude v. Tricam Indus., Inc., 556 F.3d 624, 627 (7th Cir. 2009); Smith v. Nurse, 2016 WL 4539698, at *4 (N.D. Ill. Aug. 31, 2016); Buchanan, 2012 WL 1987917, at *2. Defendants' impeachment of Plaintiff in this context shall be limited to the fact that Plaintiff is a convicted felon. If Defendant decides to impeach Plaintiff on this basis, the Court will provide a limiting instruction to the jury explaining the proper use of prior convictions for impeachment at trial. See Seventh Circuit Pattern Civil Jury Instructions 1.15 (“You have heard evidence that [Name] has been convicted of a crime. You may consider this evidence only in deciding whether [Name's] testimony is truthful in whole, in part, or not at all. You may not consider this evidence for any other purpose.”). However, the Court grants in part Plaintiff's motion in limine and bars reference to Plaintiff's other prior convictions.

         3.Illegal Drug Use on the Day of the Incident.

         Plaintiff seeks to bar Defendants from introducing evidence of his alleged use of illegal drugs on the day of the incident in question. Plaintiff argues that there is no actual evidence that he was impaired or intoxicated or that he used narcotics “during the incident in question, ” as Defendants have not disclosed any medical expert witness. Defendants argue that there are indications that Plaintiff used illegal drugs on the day of the incident and that evidence of drug use on that day is relevant to the credibility of Plaintiff's perception of the events that occurred.

         The Court agrees with Defendants that evidence of Plaintiff's alleged drug use on the day of the occurrence is relevant to his understanding of the events as they occurred and his credibility. See Saladino v. Winkler, 609 F.2d 1211, 1214 (7th Cir. 1979) (concluding that the district court did not err in permitting defendant to prove that plaintiff was intoxicated at the time of the incident to show that plaintiff's judgment was impaired when the incident occurred); Mowrey v. City of Fort Wayne, 2013 WL 6512664, at *5 (N.D. Ind. Dec. 12, 2013) (concluding that whether plaintiff was intoxication or under the influence of any narcotics at the time of the incident is relevant to the jury's evaluation of his credibility and thus admissible for the purposes of challenging his perception of the events); Casares v. Bernal, 790 F.Supp.2d 769, 785-86 (N.D. Ill. 2011) (“Where there is reason to believe that alcohol or marijuana had seriously impaired a witness's memory of the events to which he is testifying or prevented him from understanding the events at the time they occurred, evidence of his drug or alcohol use is admissible.”).

         Plaintiff argues that Defendants should not be allowed to introduce evidence of a notation in his medical chart indicating that his metabolic drug screen came back positive for opiates because he was given intravenous opiate pain relievers upon his admission to the hospital. Plaintiff further argues that even if he had tested positive for illicit, as opposed to medicinal opiates, the metabolic drug screen would not conclusively establish that he consumed such narcotics. However, this does not persuade the Court that it is necessary to bar this evidence, as Plaintiff will have the opportunity to make those points through cross-examination at trial. Casares, 790 F.Supp.2d at 785-86. Thus, Defendants are permitted to introduce evidence of this notation for opiates on Plaintiff's medical chart. Additionally, Defendants are permitted to testify as to what they observed regarding Plaintiff's behavior during the incident. See Mowrey, 2013 WL 6512664, at *6; F.R.E. 701 (A witness is permitted to testify “in the form of an opinion that is * * * rationally based on the witness's perception[.]”). Thus, Plaintiff's motion is denied to this extent.

         4. Prior Gang Affiliation

         Defendants assert that they do not intend to introduce evidence of Plaintiff's prior gang affiliation, thus ...


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