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Smith v. City of Chicago

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

September 30, 2019

DARNELL SMITH, et al., Plaintiffs,
v.
CITY OF CHICAGO, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          ANDREA R. WOOD, UNITED STATES DISTRICT JUDGE

         Darnell Smith and the other named plaintiffs in this putative class action (“Plaintiffs”) have sued the City of Chicago (“City”), Chicago Police Superintendent Gary McCarthy, and various other named and unnamed Chicago Police Department (“CPD”) officers (collectively, “Defendants”) for alleged violations of the Fourth Amendment to the United States Constitution, as explained in the Supreme Court's decision in Terry v. Ohio, 392 U.S. 1 (1968).[1] Specifically, Plaintiffs allege that the CPD has a policy and practice of conducting unconstitutional investigatory stops without reasonable suspicion. To assist in defining their proposed classes, Plaintiffs' rely on the CPD's use of Contact Information Cards (“contact cards”) to document investigatory stops and enforcement of the City's Gang and Narcotics-Related Loitering Ordinances by police officers. Plaintiffs retained three expert witnesses to assist them in sorting through more than three million contact cards produced in discovery by the CPD and defining their class. Defendants ask the Court to exclude the testimony of all three experts. (Dkt. No. 315.) Also before the Court are the City's motion for sanctions for one expert's purported failure to disclose his methodology pursuant to Federal Rule of Civil Procedure 26(a)(2)(B)(i) (Dkt. No. 327), and Plaintiffs' cross-motion for sanctions pursuant to 28 U.S.C. § 1927 (Dkt. No. 344). For the reasons set forth below, Defendants' motion to exclude Plaintiffs' expert witnesses is granted in part and denied in part, while both the City's motion for sanctions and Plaintiffs' cross-motion for sanctions are denied.

         BACKGROUND

         In their Sixth Amended Complaint, Plaintiffs allege that Defendants have implemented, applied, and continued to enforce a policy or custom of unconstitutional stops and frisks of Chicago residents by the CPD, which have been conducted without the reasonable articulable suspicion required by the Fourth Amendment. (Sixth Am. Compl. at Law (“SAC”) ¶ 3, Dkt. No. 177.) Plaintiffs allege that they reside in or visit neighborhoods where the CPD has conducted these unconstitutional stops and frisks, and some of them claim to be victims themselves. (Id. ¶¶ 12-30.) In this putative class action, Plaintiffs seek to represent themselves and the “many thousands of victims” of unconstitutional stops and frisks by CPD officers. (Pls.' Mot. for Rule 23(b)(3) Class Certification (“Pls.' Class Cert. Mot.”) at 7, Dkt. No. 277.)

         Consistent with CPD Special Order S04-13-09 (“Special Order”), the CPD has used contact cards to document investigatory stops and enforcement of the City's Gang and Narcotics-Related Loitering Ordinances. (Pls.' Class Cert. Mot., Ex. 19.) Officers do not create a contact card if the interaction results in a citation or arrest. (Pls.' Class Cert. Mot. at 22.) Plaintiffs here retained three expert witnesses to assist them in sorting through more than three million contact cards produced by the CPD. Plaintiffs' first expert, F. Eli Nelson, is a data analyst who used keywords and Boolean logic to search and sort through the contact cards; for example, Nelson identified certain cards as documenting “Unconstitutional Stops” and filtered out cards he perceived as documenting “non-stops” and “Potentially Permissible Stops.” (Id. at 48-49.) Plaintiffs offer their second expert, Timothy J. Longo, Sr., as a police-practices expert. (Id. at 53.) Longo reviewed over 10, 000 contact cards randomly-selected from those identified by Nelson as “Unconstitutional Stops” and, after reviewing the narrative section of each card, purports to have confirmed whether the police officer indeed made an unconstitutional stop. (Id. at 53-55.) Finally, Plaintiffs' third expert, Andrew J. Cook, is a statistician who opines that Longo reviewed enough individual contact cards to support a 95% confidence level in Nelson's methodology. (Id. at 55.)

         Based on their experts' testimony, Plaintiffs proposed six potential classes for certification under Federal Rule of Evidence 23(b)(3):

(1) Fourth Amendment Class: All persons subjected to an investigatory stop by the Chicago Police Department at any time since April 20, 2013, which resulted in the creation of a contact card;
(2) All African-Americans and Hispanics subjected to an investigatory stop by the Chicago Police Department at any time since April 20, 2013, which resulted in the creation of a contact card;
(3) Fourth Amendment Class: All persons who were encountered by the Chicago Police Department for enforcement of the Gang and Narcotics Loitering Ordinance at any time since April 20, 2013, which resulted in the creation of a contact card;
(4) All African-Americans and Hispanics who were encountered by the Chicago Police Department for enforcement of the Gang and Narcotics Loitering Ordinance at any time since April 20, 2013, which resulted in the creation of a contact card;
(5) All persons subjected to an investigatory stop by the Chicago Police Department at any time since April 20, 2013, which resulted in the creation of a contact card that contains no narrative; and
(6) All African-Americans and Hispanics who were subjected to an investigatory stop by the Chicago Police Department at any time since April 20, 2013, which resulted in the creation of a contact card that contains no narrative.

(Id. at 57; Pls.' Reply Brief in Support of their Mot. for Rule 23(b)(3) Class Certification at 17, Dkt. No. 332.) For reasons explained in a prior Memorandum Opinion and Order, this Court denied Plaintiffs' motion for certification of the proposed Rule 23(b)(6) class. (Dkt. No. 388.) In so ruling, the Court indicated that Plaintiffs could not use their proffered expert testimony to support their claim to have identified a subset of contact cards that reflect unconstitutional stops. The Court now expounds on that determination in ruling on the pending motions to exclude the expert testimony and for sanctions.

         DISCUSSION

         I. The City's Motion to Exclude Expert Testimony

         Federal Rule of Evidence 702 governs the admissibility of expert evidence in federal court. It provides as follows:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and ...

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