United States District Court, N.D. Illinois, Eastern Division
Matthew Kennelly Judge .
DEFENDANTS' AMENDED COMBINED MOTION FOR JUDGMENT
AS A MATTER OF LAW AND MOTION FOR NEW TRIAL AND TO
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 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:
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
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).
A New Trial Should Be Granted As a Result Of Substantial
Errors In The Exclusion of Material Evidence.
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).
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.
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.”).
As a Result of this Court's Pretrial Rulings, Defendants
Were Improperly Prevented From Attacking Plaintiff's
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.
Lamberty should have been allowed as an impeachment
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.
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.
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
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
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
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.
The Arrest Report “WC Comments” fall within
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
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.
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.
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.
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 ...