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Cooper v. City of Chicago

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

March 20, 2018

GARY COOPER, Plaintiff,
v.
The CITY OF CHICAGO, Illinois, a municipal corporation, and Chicago Police Officers KATHLEEN A. CLYNE #9821, KEN A. JA #15115, KATHY L. SCHNEIDER #8053, VASILIOS H. PAPADOPOULOS #18997, and ROBERT SCHMIDT #897 Defendants.

          Matthew Kennelly Judge .

          DEFENDANTS' AMENDED COMBINED MOTION FOR JUDGMENT AS A MATTER OF LAW AND MOTION FOR NEW TRIAL AND TO ALTER/AMEND JUDGMENT

         NOW COME Defendants, CITY OF CHICAGO, KATHLEEN CLYNE, KEN JA, KATHY SCHNEIDER, VASILIOS PAPADOPOULOS, and ROBERT SCHMIDT (“Defendants” or “Defendant Officers”), by and through their attorneys, and hereby submit their Amended[1] Motion for Judgment as a Matter of Law under Fed.R.Civ.P. 50 or, in the alternative, Motion for A New Trial or to Alter/Amend Judgment under Fed.R.Civ.P. 59, and in support thereof, state as follows:

         LEGAL STANDARD

         Rule 50(a)(2) provides: “A motion for judgment as a matter of law may be made at any time before the case is submitted to the jury. The motion must specify the judgment sought and the law and the facts that entitle the movant to the judgment.” If a Rule 50(a) motion made at the close of evidence is not granted, the movant may renew the motion within 28 days after the entry of judgment. Fed.R.Civ.P. 50(b). Rule 50 “allows a district court to enter judgment against a party who has been fully heard on an issue during a jury trial if ‘a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue.'” Passanati v. Cook Cnty., 689 F.3d 655, 659 (7th Cir. 2012) (quoting Fed.R.Civ.P. 50(a)).

         Rule 59(a) provides that “[t]he court may, on motion, grant a new trial on all or some of the issues - and to any party -…after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court…” Id. A court can order a new trial “if the jury's verdict is against the manifest weight of the evidence, …or if for other reasons the trial was not fair to the moving party.” Willis v. Lepine, 687 F.3d 826, 836 (7th Cir. 2012). Courts may grant Rule 59(e) motions to alter or amend the judgment if the movant points to evidence in the record that clearly establishes a manifest error of law or fact. Miller v. Safeco Ins. Co. of Am., 683 F.3d 805, 813 (7th Cir. 2012). “A ‘manifest error' occurs when the district court commits a wholesale disregard, misapplication, or failure to recognize controlling precedent.” Burritt v. Ditlefsen, 807 F.3d 239, 253 (7th Cir. 2015).

         ARGUMENT

         I. A New Trial Should Be Granted As a Result Of Substantial Errors In The Exclusion of Material Evidence.

         This Court should grant Defendants' Motion for a new trial because there were substantial evidentiary errors prohibiting Defendants' presentation of material evidence on some of the most probative issues in this case. A new trial is warranted where the Court's ruling on the evidence was erroneous and the error had “a substantial or injurious effect or influence on the determination of a jury and the result is inconsistent with substantial justice.” Lewis v. City of Chic. Police Dep't, 590 F.3d 427, 440 (7th Cir. 2009).

         First, this Court's rulings prohibiting Defendants from impeaching Plaintiff's testimony that he was denied a recognizance bond with either Sgt. Lamberty's testimony or admission of a portion of the arrest report deprived Defendants of a fair trial on both liability and damages. Second, this Court's granting of Plaintiff's Motion in limine No. 3, barring evidence related to Plaintiff's representation of himself as a “sovereign citizen” (and attendant misrepresentation of his identity) during his criminal trial, similarly deprived Defendants of a fair trial by preventing Defendants from presenting evidence: (1) that was relevant to Plaintiff's general veracity as a witness; and (2) directly probative of Plaintiff's underlying violent resistance during the incident.

         These rulings (independently and in concert with each other) warrant a new trial as their prejudicial effect was not harmless. See Cobige v. City of Chic., 651 F.3d 780, 785 (7th Cir. 2011) (remanding for based on “error in excluding evidence that could have significantly reduced the award of damage” because “[t]he district court should not have forbidden evidence that would have helped defendants counter [the plaintiff's] presentation”); Parish v. City of Elkhart, Inc., 702 F.3d 997, 1003 (7th Cir. 2012) (remanding for new trial because “the district court's ruling improperly limited the introduction of evidence relating to Parish's innocence, and that evidence was critical to the damages issue, the award of damages cannot stand.”).

         A. As a Result of this Court's Pretrial Rulings, Defendants Were Improperly Prevented From Attacking Plaintiff's Testimony.

         In this case, Defendants sought to introduce evidence showing Plaintiff's testimony that he was denied a recognizance bond and as a result spent six days in jail was false. See Group Ex. 1, Excerpts of Trial Trans. at pp. 459:25-460:14. However, this Court's pretrial rulings prevented Defendants from rebutting this testimony. Specifically, Defendants were prohibited from calling Lamberty to offer impeachment testimony on this issue. Group Ex. 2, Excerpts of 2-8-18 Pretrial Trans. at p. 42. Also, Defendants were prevented from entering the portion of the police report which reflects that Lamberty offered the bond and Plaintiff refused. Id. at p. 10:9-14. Consequently, a new trial is warranted to correct these errors and ensure a fair trial.

         1. Lamberty should have been allowed as an impeachment witness.

         This Court erred when it ruled that Defendants were prohibited from calling Lamberty as a witness. Id. at p. 42. Lamberty offered Plaintiff a recognizance bond that would have allowed him to go home after just a few hours, rather than six days, and documented that interaction. Ex. 3, 3-16-18 Aff. of Sgt. Lamberty at ¶ 5; Ex. 4, Arrest Report HLO000001-HLO000005; Ex. 5, 1-19-17 Aff. of Sgt. Lamberty; see also Ex. 1 at pp. 459:25-460:6. However, this Court barred Lamberty from testifying at trial because it found Plaintiff was “led to believe that [Lamberty] had no information.” Ex. 2 at p. 42. This ruling was erroneous. Plaintiff was in possession of the arrest report in this case well before discovery was even initiated, and was fully aware that Lamberty reported therein that he had offered Plaintiff a recognizance bond but that Plaintiff refused to sign. Moreover, Lamberty was solely being called for impeachment purposes, and thus he need not be disclosed (although he was disclosed both under Rule 26(a) and in the final pretrial order). Therefore, this Court should have allowed Defendants to call Lamberty at trial, effectively impeaching Plaintiff's false testimony on this specific issue. Lamberty's testimony would have shown that Plaintiff's claim that he was denied a recognizance bond was not true. See Ex. 3 at ¶ 10; White, 2009 WL 4215096, at *2-3.

         This Court's finding that it would be “unfair” to allow Defendants to call Lamberty because Plaintiff was “lead to believe that the guy had no information” is incorrect. Ex. 2 at p. 42:14-16. Plaintiff had the arrest report which he used the report to draft Lamberty's affidavit. See Ex. 4; Ex. 5. Indeed, Plaintiff specifically cites the time Lamberty approved criminal charges. Ex. 5 at ¶ 5. Page 5 of the arrest report is the only place where that particular information is contained in discovery. Ex. 4 at p. HLO000005. That same page also reflects that Lamberty reported: “SUBJECT REFUSES TO SIGN RECOGNIZANCE BOND.” Id. There is no basis to conclude that Plaintiff did not have this information. He indisputably did.

         Nor does the correspondence related to the preparation of the affidavit mislead Plaintiff by somehow suggesting Lamberty's involvement with Plaintiff was limited to the final approval of charges. See Group Ex. 6, Correspondence related to preparation of Ex. 5. Plaintiff's counsel actually prepared the affidavit. While Defendants did review prior versions of the affidavit Plaintiff prepared, at no time did any versions of the affidavit discuss this particular issue. Id. Defendants never removed the information or suggested Plaintiff do the same. Id. Indeed, there was no discussion related to this particular piece of information. Thus, there is nothing to suggest that Defendants mislead or hid this information from Plaintiff. See Id. The simple fact is that Plaintiff decided not to include it in the affidavit he prepared, despite readily having the information. That is not a basis to prohibit Defendants from calling Lamberty as a witness to impeach Plaintiff on this issue.

         Plaintiff's admonition that Lamberty would have been deposed in this case is also misleading. Plaintiff deposed three officers in this case (who were later dropped as defendants), a lockup keeper, and an OEMC representative. Plaintiff did not depose a single Defendant Officer, including Schneider, who never testified during the criminal proceedings. Plaintiff also did not depose Defendants' expert, Robert Johnson; the landlord; Sgt. Neary, who released Plaintiff to go to the hospital; Officer Nadela who searched Plaintiff and received him at the lock up when upon return from the hospital; Officer Biritz who took Plaintiff to the hospital; or Lock-up Keeper Slowik. To maintain that he was unfairly prejudiced because he would have deposed Lamberty had Lamberty not signed the affidavit is disingenuous.

         Moreover, Lamberty's testimony should have been allowed, at minimum, for direct impeachment of Plaintiff's testimony. See Ex. 3. Rule 26(a) does not require disclosure of impeachment witnesses. Fed.R.Civ.P. 26(a); Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 869 (7th Cir. 2005); Moore v. City of Chic., No. 02 C 5130, 2008 WL 4549137, * (N.D. Ill. April 15, 2008). Any arguable prejudice Plaintiff experienced because he decided to forego Lamberty's deposition is illusory. As Lamberty's testimony was solely for impeachment of Plaintiff's testimony on this one issue, there was no requirement to disclose him in the first instance. Had Lamberty never been disclosed, Plaintiff would not have the affidavit of Lamberty, let alone a deposition, and would have been in the same (or worse) position than he was prior to the start of trial.

         As a result, Defendants were unable to impeach Plaintiff which had a considerable injurious effect both in being unable to challenge his credibility, and with regard to the damages Plaintiff was able to obtain under the false pretense of being forced to remain in lockup. A new trial is necessary to correct this error and ensure a complete record is presented to the jury.

         2. The Arrest Report “WC Comments” fall within hearsay exceptions.

         This Court's evidentiary finding that police reports are inadmissible hearsay that was not subject to any exception was also incorrect. Ex. 2 at p. 10:9-14. The Court's ruling on this issue barred Defendants from entering into evidence the WC Comment of the Arrest Report. That section is admissible under Rule 803(8), (6), and (5). See Ex. 4 at p. HLO000005; Fed.R.Evid. 803(5), (6), and (8). As a result, Defendants should have been allowed to present it as substantive evidence. The Court's refusal to allow this evidence merits a new trial as it prevented the impeachment of Plaintiff on a key issue as well as challenging his alleged damages.

         First, the portion of the Arrest Report is admissible under Rule 803(8) as a public record. In civil cases, Rule 803(8) creates an exception to the hearsay rule for “a matter observed while under a legal duty to report...” See Fed. R. Evid. 803(8). This exception expressly governs matters encompassed by reports completed by law enforcement in the scope of their duties. See Truesdale v. Klich, No. 03 C 8209, 2006 WL 1460043, at *3 (N.D. Ill. May 23, 2006) (“In a civil case, police reports may be admissible as a public record or business record.”); Lockhart ex rel. Lockhart v. Archer, No. 03 C 3760, 2004 WL 1459338, at *1 (N.D. Ill. June 25, 2004); Salmi v. D.T. Mgmt., Inc., No. 02 C 2741, 2002 WL 31115581, at *2 (N. D. Ill. Sept. 23, 2002) (citing Rule 803(8) and noting that “[b]ecause this is a civil-not a criminal-matter, a police officer's statements of facts and observations in his report are admissible.”); Roth v. Nat'l R.R. Pass. Corp., No. 97 C 6503, 1999 WL 1270706, at *1 (N. D. Ill.Dec. 29, 1999). The WC Comments sets out Lamberty's activities. Ex. 3 at ¶¶ 3, 5-7, 12. Lamberty's offering of the bond and Plaintiff's refusal to sign the same were observed by Lamberty while under a legal duty to report that information. Id. at ¶¶ 6, 7, 10, 11. There is no evidence that the source of the information or other circumstances indicate a lack of trustworthiness. Thus, Defendants would have been able to satisfy the requirements for 803(8) to apply.

         Second, this portion is also admissible as a business record under Rule 803(6). Under governing law, police reports, such as this arrest report, are admissible under this hearsay exception. See Roth, 1999 WL 1270706, at * 1 (police reports could be admissible under Rule 803(6)); Latosky v. Strunc, No. 08-C-771, 2009 WL 1073680, at *4 (E.D. Wis. Apr. 21, 2009) (“The business records exception to the hearsay rule set forth in Fed.R.Evid. 803(6) has been found applicable to police reports.”); Dertz v. City of Chic., No. 94 C 542, 1998 WL 61194, at *3 (N.D. Ill. Feb. 5, 1998) (denying motion in limine to bar police reports because “They appear to be within Rule 803(6), removing them from the category of inadmissible hearsay”); McKinney v. George, 556 F.Supp. 645, 649 (N.D. Ill. 1983), aff'd, 726 F.2d 1183 (7th Cir. 1984). This is a record made at or near the time Lamberty offered Plaintiff the recognizance bond and he refused. Ex. 3 at ¶ 11. The arrest report was kept in the course of regularly conducted activity of the Chicago Police Department. Id. at ¶ 12. Making the record of offering the bond and Plaintiff's refusal was a regular practice of the Chicago Police Department and of Lamberty at that time. Id. at ¶¶ 6, 7, 12. Lamberty is a qualified witness to offer this foundation as the declarant as reflected by his PC number. Ex. 4 at p. HLO000005. And finally, Plaintiff has suggested no evidence that the source of information or the circumstances of preparation indicate a lack of trustworthiness. Thus, Defendants would have been able to satisfy the requirements for 803(6) to apply.

         Finally, this portion is admissible under Rule 803(5) as past-recollection recorded. See United States v. Green, 258 F.3d 683, 689 (7th Cir. 2001); Sadrud-Din v. City of Chic., 883 F.Supp. 270, 274 (N.D. Ill. 1995); U.S. v. Lewis, 954 F.2d 1386, 1395 (7th Cir. 1992). The fact that Lamberty offered Plaintiff a recognizance bond which Plaintiff refused was a matter on which Lamberty once knew about but cannot now recall well enough to testify fully and accurately. Ex. 3 at ¶¶ 8, 10, 11. This portion of the report was written by Lamberty when the matter was fresh in his memory. Id. at ¶ 11. Finally, it accurately reflects Lamberty's knowledge. Ex. 3 at ¶ 11. Thus, Defendants would have been able to satisfy the requirements for 803(5) to apply.

         As case authority clearly instructs this portion of the Arrest Report could have been allowed into evidence under at least three separate exceptions to the hearsay rule, and such foundation could have been laid, this Court was incorrect in prohibiting Defendants from attempting to do so. The prejudicial effect of this ruling was substantial as it prevented Defendants from impeaching Plaintiff on a ...


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