Abbott et al v. Sangamon County et al

Filing 94

OPINION denying 91 Motion for New Trial. Entered by Judge Sue E. Myerscough on 7/18/2013. (CT, ilcd)

E-FILED

Thursday, 18 July, 2013 12:13:47 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
CINDY C. ABBOTT,

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Plaintiff,
v.
TROY M. SWEENEY,
Defendants.

No. 09-3261

OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Following a two-day trial on May 29 and May 30, 2013, a jury
found in favor of Defendant Troy M. Sweeney and against Plaintiff
Cindy C. Abbott (hereinafter referred to as Plaintiff Abbott) on Plaintiff
Abbott’s excessive-force claim. On June 24, 2013, Plaintiff Abbott filed a
Motion for New Trial (d/e 91) pursuant to Rule 50 and Rule 59 of the
Federal Rules of Civil Procedure. For the reasons that follow, the Motion
is DENIED.
I. BACKGROUND
The parties are familiar with the facts of the case. To summarize,

Defendant Troy M. Sweeney arrested Plaintiff Abbott and her son,
Travis Abbott, and used a taser twice on Plaintiff Abbott and several
times on Travis. Plaintiff Abbott and Travis filed suit asserting Fourth
Amendment claims of false arrest, false imprisonment, and excessive
force.
In November 2011, this Court granted summary judgment in favor
of Defendant Sweeney and against Plaintiff Abbott and Travis. They
appealed, and the Seventh Circuit affirmed in part, vacated in part, and
remanded for further proceedings. See Abbott v. Sangamon County, Ill.,
705 F.3d 706, 733 (7th Cir. 2013). The Seventh Circuit affirmed with
respect to all of Travis’s claims and with respect to Plaintiff Abbott’s false
arrest and false imprisonment claims. The Seventh Circuit vacated the
judgment on Plaintiff Abbott’s excessive-force claim and remanded the
cause for further proceedings.
On appeal, Plaintiff Abbott did not challenge the first use of the
taser on her but only challenged the second tasing. Id. at 729.
Therefore, this case proceeded to trial on the issue of whether Defendant

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Sweeney used excessive force on Plaintiff Abbott when he tased her the
second time. Following a two-day trial, the jury found in favor of
Defendant Sweeney.
II. ANALYSIS
In her Motion, Plaintiff Abbott asserts: (1) the Court erred in
denying her Motion for Summary Judgment on liability following the
opinion of the United States Court of Appeals for the Seventh Circuit
such that the case should have proceeded against Defendant Sweeney on
damages only; (2) the verdict was against the manifest weight of the
evidence; (3) the Court committed prejudicial error by allowing
Defendant Sweeney to testify to hearsay of the animal control officers
and another police officer at the scene over objection of Plaintiff Abbott;
and (4) the Court erred in permitting Defendant Sweeney to testify over
objection that he had tased three people previously. Plaintiff Abbott also
adopts as prejudicial error each and every other error shown of record.
A.

The Seventh Circuit Did Not Find that Plaintiff Abbott Had
Established Liability as a Matter of Law
When reviewing a motion for judgment as a matter of law under
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Rule 50(b), this Court examines all the evidence in the record and
construes all reasonable inferences in the light most favorable to the nonmoving party. May v. Chrysler Group, LLC, 716 F.3d 963, 971 (7th Cir.
2013). The motion should be granted only where no rational jury could
have found for the prevailing party. Tate v. Executive Management
Serv., Inc., 546 F.3d 528, 532 (7th Cir. 2008).
Prior to trial, Plaintiff Abbott filed a Motion for Summary
Judgment of Liability of Defendant Sweeney as to Excessive Force Claim
(d/e 64). In that motion, Plaintiff Abbott asserted that the Seventh
Circuit, on appeal from this Court’s order granting summary judgment,
found it was clearly established “that it is unlawful to deploy a taser in
dart mode against a nonviolent misdemeanant who had just been tased in
dart mode and made no movement when, after the first tasing, the officer
instructed her to turn over.” See Motion, d/e 64, citing Abbott, 705 F.3d
at 732. Plaintiff Abbott argued that judgment should be entered in her
favor on liability and the case should be tried before a jury as to damages
alone. The Court denied the Motion. See April 8, 2013 Text Order.

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Plaintiff Abbott now asserts that this Court erred by denying that
motion for summary judgment as to liability. The Court denies Plaintiff
Abbott’s motion for judgment as a matter of law on liability.
In Abbott v. Sangamon County, the Seventh Circuit vacated this
Court’s judgment with respect to Plaintiff Abbott’s excessive-force claim,
which had found that Defendant Sweeney was entitled to qualified
immunity on the claim. In doing so, the Seventh Circuit held: (1) the
facts, taken in the light most favorable to Plaintiff Abbott, showed the
officer’s conduct violated her constitutional rights (Abbott, 705 F.3d at
729-730 (“The totality of the circumstances when viewed in a light
favorable to Cindy demonstrates that Sweeney’s second application of
the taser could be determined by a jury to have been unreasonable”));
and (2) the constitutional right was clearly established. Abbott, 705 F.3d
at 732. The Seventh Circuit made clear, however, that factual disputes
remained: “In short, a genuine issue of material fact exists that must be
resolved by a jury, so summary judgment on this claim was improper.”
Abbott, 705 F.3d at 733.

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In light of that genuine issue of material fact, a jury trial was held
on liability and damages. The jury found in favor of Defendant Sweeney.
Therefore, Plaintiff Abbott’s request for a new trial on the grounds that
the Seventh Circuit found liability had been established is denied.
B.

The Jury’s Verdict Was Not Against the Manifest Weight of the
Evidence
Plaintiff Abbott also seeks a new trial on the grounds that the jury’s

verdict was against the manifest weight of the evidence. Plaintiff Abbott
argues that Defendant Sweeney’s subjective belief that Plaintiff Abbott
sought to help her son escape was a delusion because she was the one
who brought her son out of the house to be interrogated by the police
officers.
A motion for a new trial pursuant to Rule 59(a) is granted only
where the verdict is against the manifest weight of the evidence, the
damages are excessive, or the trial was not fair to the moving party.
Miksis v. Howard, 106 F.3d 754, 757 (7th Cir. 1997); see also
Fed.R.Civ.P. 59(a)(1)(A) (providing that a court may grant a new trial
“for any reason for which a new trial has heretofore been granted in an
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action at law in federal court”). “When considering whether the verdict
was against the manifest weight of the evidence, ‘the district court has
the power to get a general sense of the weight of the evidence, assessing
the credibility of the witnesses and the comparative strength of the facts
put forth at trial.’” Whitehead v. Bond, 680 F.3d 919, 928 (7th Cir.
2012), quoting Mejia v. Cook County, Ill., 650 F.3d 631, 633 (7th Cir.
2011). A jury’s verdict is not against the manifest weight of the evidence
unless no rational jury could have rendered the verdict. Whitehead, 680
F.3d at 929.
In this case, the jury was presented with two conflicting versions of
the events. Defendant Sweeney, a former Sangamon County Sheriff’s
deputy, testified that after arresting Travis, he handcuffed him and put
Travis in the back of his vehicle. According to Defendant Sweeney, the
vehicle was not a prisoner transport vehicle. Therefore, the vehicle did
not have a panel of glass between the front and back seats. Moreover, it
would have been possible for someone to unlock the doors from the
inside.

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Defendant Sweeney testified that Travis moved his handcuffed
hands from behind his back to the front of his body, was trying to open
the back door of the vehicle, and was yelling for his mother to get him
out of there. As Defendant Sweeney reached back to prevent Travis
from escaping, his foot slipped off the brake pedal and his vehicle rolled
back into Plaintiff Abbott’s parked vehicle. Defendant Sweeney put his
vehicle in park and got out of his vehicle to secure Travis.
Defendant Sweeney testified that Plaintiff Abbott came toward
him. He told her to stop twice, the second time adding that she would be
tased. She did not stop, and he used the taser. Plaintiff Abbott sat
down, then laid down. Defendant Sweeney told Plaintiff Abbott to turn
over on her stomach so she could be handcuffed. He gave her several
seconds to comply. When she did not comply, he used the taser the
second time. She immediately turned over. Defendant Sweeney testified
he thought Plaintiff Abbott was going to continue to do what she was
doing before she was tased–help her son escape. While this was going on,
Defendant Sweeney was also trying to keep on eye on his vehicle to see

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that Travis did not get out. Defendant Sweeney explained that he used
the taser on Plaintiff Abbott, as opposed to grabbing her, because she was
small, he and Sergeant Lawley were big, and Plaintiff Abbott could have
been injured.
Sergeant Lawley testified that after the first tasing of Plaintiff
Abbott, Plaintiff was still trying to get up and was trying to grab the
taser. Lawley testified that Defendant Sweeney told Plaintiff Abbott to
stay on the ground but she kept trying to get up. Defendant Sweeney
then reactivated the taser, and Plaintiff Abbott rolled over.
In contrast, Plaintiff Abbott testified she yelled at Defendant
Sweeney that she could not believe he hit her Jeep. She took one step
and, by the time she got to her second step, something caused her to go
to the ground. Plaintiff Abbott testified Defendant Sweeney told her to
roll over but she could not move. Defendant Sweeney tased her again.
Travis testified that Defendant Sweeney told Plaintiff Abbott to roll over,
Plaintiff Abbott did not roll over, and she was tased.
After weighing all of the evidence presented, this Court finds that

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this is not a case where no rational jury could have rendered the verdict.
The evidence in the record supports the jury’s verdict. The jurors were
entitled to believe Defendant Sweeney’s and Sergeant Lawley’s version of
events instead of Plaintiff Abbott’s and her son’s version of events. See
Whitehead, 680 F.3d at 928-929 (citing cases for the proposition that
when the evidence conflicts, it is the jury’s job to determine who is telling
the truth). According to Defendant Sweeney’s and Sergeant Lawley’s
version, Plaintiff Abbott was not complying with Defendant Sweeney’s
orders and was trying to stand up. The verdict in this case does not “cry
out to be overturned” or “shock the conscience.” See Clarett v. Roberts,
657 F.3d 664, 676 (7th Cir. 2011) (finding “[t]he jurors were entitled to
believe the officer’s version of events” and that “the verdict does not ‘cry
out to be overturned’ or ‘shock the conscience’”).
Moreover, the Court instructed the jurors that:
You must decide whether defendant’s use of
force was unreasonable from the perspective of a
reasonable officer facing the same circumstances
that defendant faced. You must make this
decision based on what the officer knew at the
time of the arrest, not based on what you know
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now. In deciding whether defendant’s use of force
was unreasonable, you must not consider whether
defendant’s intentions were good or bad.
In performing his job, an officer can use force
that is reasonably necessary under the
circumstances.
See Instruction given (d/e 87), p. 16; see also Seventh Circuit Pattern
Jury Instruction No. 7.09. Therefore, the jury was aware that they must
judge the force from the perspective of a reasonable officer.
The jury had a reasonable basis to find in favor of Defendant
Sweeney. Therefore, the jury’s verdict was not against the manifest
weight of the evidence.
C.

Plaintiff Abbott is Not Entitled to a New Trial on the Basis of the
Alleged Evidentiary Errors
To obtain a new trial on the grounds of an erroneous evidentiary

ruling, the party must show that such ruling affected his substantial
rights. Fed.R.Evid. 103(a); Fed.R.Civ.P. 61. That means “an error likely
had a substantial effect on the jury’s verdict and the result was
inconsistent with substantial justice.” Jordan v. Binns, 712 F.3d 1123,
1137 (7th Cir. 2013. “Harmless-error analysis is case-specific and require
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an examination of the error(s) in light of the entire record.” Jordan, 712
F.3d at 1137. The factors considered when determining whether an error
was harmless include whether the evidence went to a central issue,
whether the evidence was cumulative of other properly admitted
evidence, and the how strong the evidence was. Jordan, 712 F.2d at
1137.
1.

Testimony About What Other Officers Told Defendant
Sweeney Was Not Hearsay

Plaintiff Abbott argues that the Court committed prejudicial error
by allowing Defendant Sweeney to testify to hearsay of the Animal
Control Group and another police officer at the scene over Plaintiff
Abbott’s objection.
The Court is not sure to which testimony Plaintiff Abbott objects.
On direct examination by Plaintiff Abbott’s counsel, Defendant Sweeney
testified that he spoke to Sergeant Lawley and the animal control officers
upon his arrival to the Abbott’s home about their version of events.
Sweeney did not testify as to what he was told.
Plaintiff Abbott’s counsel then asked Defendant Sweeney if Travis
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had threatened an animal control officer, and Sweeney testified that he
was told that Travis threatened to batter them and made a fist, moving
toward them. Plaintiff Abbott’s counsel elicited this testimony but now
objects to the testimony.
In any event, even if Defendant Sweeney had testified about what
the animal control officers and Sergeant Lawley told him when he arrived
at the scene, the Court finds such testimony is non-hearsay because it
was not offered for the truth of the matter asserted but was offered to
establish the course of Defendant Sweeney’s investigation. See, e.g.,
United States v. Linwood, 142 F.3d 418, 425 (7th Cir. 1998) (“Offering
testimony to establish background facts leading up to a sequence of
events is likewise an ostensibly non-hearsay use of evidence”); United
States v. Akinrinade, 61 F.3d 1279, 1283 (7th Cir. 1995) (finding that
the testimony was not admitted to prove the truth of the matter asserted
but to establish the course of the investigation). In addition, any error in
admitting the evidence was harmless because it had no relation to the
issue in the case: whether the second use of the taser on Plaintiff Abbott

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was reasonable.
2.

Admission of Testimony About Other Tasing Was Relevant
or, in the Alternative, Was Harmless Error

Plaintiff Abbott also argues the Court erred in permitting
Defendant Sweeney to testify over her objection that he had previously
tased three people.
Following Defendant Sweeney’s testimony, the jury submitted the
following question: “Have you used a taser multiple times in your line of
duty or was this an isolated incident?” See d/e 85. Plaintiff Abbott
objected on the ground that such information was not relevant. The
Court, while noting that Defendant Sweeney’s usage and familiarity with
the taser was relevant, did not ask the question but reopened
questioning, over Plaintiff Abbott’s objection.
Upon questioning, Defendant Sweeney testified that he had been
involved in other incidents before this one where he deployed the taser
and the person was not compliant after he tasered the person the first
time. He further testified that, in the past, he had to use the taser more
than two times. Defendant Sweeney believed he had had three occasions
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in the past when the taser did not work the initial time and he had to use
it a second time. Defendant Sweeney testified he also had situations in
the past where he had to raise the level of force and go “hands on” if the
taser did not work. According to Defendant Sweeney, he would expect
that when he uses the taser the second time that it would gain the
person’s compliance. On cross-examination by Plaintiff Abbott’s counsel,
Defendant Sweeney testified that his training and experience told him to
apply the taser a second time. Defendant Sweeney also testified it was
his understanding that the case would be decided based on what a
reasonable officer felt was justified use of force.
As the Court noted at trial, the testimony was relevant to show that
Defendant Sweeney was familiar with using the taser and the taser’s
effects. Even if admission of this evidence was improper, however, any
error was harmless. A new trial is warranted for an evidentiary error only
when there is a significant chance that the error affected the outcome of
the trial. See Whitehead, 680 F.3d at 930. Here, any error in admitting
the testimony did not affect the outcome of the trial because the jury was

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properly instructed and the other evidence properly admitted supports
the verdict.
III. CONCLUSION
For the reasons stated, Plaintiff Cindy’s Abbott’s Motion for New
Trial (d/e 91) is DENIED.
ENTER: July 18, 2013
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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