Padilla et al v. City Of Chicago et al
MEMORANDUM Opinion and Order Signed by the Honorable Milton I. Shadur on 10/2/2013. Mailed notice by judge's staff. (srb,)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
NOEL PADILLA, et al.,
CITY OF CHICAGO, et al.,
No. 06 C 5462
MEMORANDUM OPINION AND ORDER
All parties on both sides of the “v.” in this 42 U.S.C.
§1983 (“Section 1983”) action have filed extensive motions in
limine--13 on the plaintiffs’ side and 10 on the defendants’
Although the briefing on defendants’ motions has been
completed by plaintiffs’ September 26, 2013 filing of their
responses, that is not the case as to plaintiffs’ motions:
all defendants are represented by the same lawyers, and this
Court has granted the unopposed motion of two defendants for an
extension of time to respond to one of plaintiffs’ motions.
though matters are made a bit more complicated by the fact that
several of plaintiffs’ responses refer to and rely on the more
extensive treatment set out earlier in some of their own motions,
it appears to make sense to address several of defendants’
motions (cited “D. Motion --”) now, rather than leaving all
motions on both sides for future treatment.
For one thing, D. Motion 8 (Dkt. 638) is a totally
noncontroversial request to exclude all non-party witnesses from
the courtroom during the opening statements and the testimony of
Plaintiffs understandably offer no objection,
so Dkt. 638 is granted.
To turn to defendants’ sharply contested D. Motion 1 (Dkt.
631), it seeks to bar the testimony of Miguel Melesio (“Melesio”)
as assertedly irrelevant and inadmissible under Fed. R. Evid.
(“Evid. R.”) 404(b).
That effort on defendants’ part, like a
good many of defendants’ other objections, is based on an
unjustifiably constricted view of both relevance and
As plaintiffs’ response demonstrates at length and in
detail, the fact that Melesio does not have personal knowledge of
all aspects of defendants’ search of his home cannot and should
not preclude him from testifying as to matters about which he
does have personal knowledge.
And most significant, some
striking parallels between the Melesio scenario and the current
case come well within the scope of evidence tending to support
plaintiffs’ claim of defendants’ asserted conspiracy that forms
the gravamen of this action.
Moreover, Evid. R. 403 balancing clearly permits the
challenged evidence to come into the case.
And if and to the
extent that a cautionary instruction about the purposes for which
that evidence may be considered needs to be included within the
jury instructions, that subject can be addressed during the jury
Accordingly Dkt. 631 is denied.
Next, D. Motion 4 (Dkt. 634) seeks to bar any reference to
SOS officers other than the named defendants in this action.
Only a moment’s analysis is needed to recognize the unsoundness
of that position, which rests on the fiction that the members of
what was a working team of SOS officers functioned independently,
something like the watertight compartments that maintain a ship’s
Instead the conspiracy charged here surely
supports the admissibility of such evidence as nonhearsay under
Evid. R. 801(d)(2)(E).
On that score plaintiffs’ counsel
disclaim any “inten[tion] to spend much, if any, time discussing
Defendants’ teammates”--but they then go on to state with total
[T]he suggestion that any mention of them should be
prohibited is a stretch. This motion lacks both common
sense rationale and legal basis.
Dkt. 634 is denied.
Next, D. Motion 5 (Dkt. 635) seeks to bar any testimony,
evidence, argument or comments as to other allegations of police
That motion is both overbroad and premature--as this
Court said nearly five years ago in another case in which Chicago
Police Department defendants advanced a comparable argument:
Again defense counsel have sought to obtain a bar order
in advance of trial on a subject that far better lends
itself to consideration in the trial environment. It
looks very much as though the motion is one lodged in
the Corporation Counsel’s Office computer, for this
Court’s colleague Honorable Ruben Castillo was called
on to deal with an identical motion in Charles v.
Cotter, 867 F.Supp. 648, 664 (N.D. Ill. 1994). This
Court shares Judge Castillo’s “unwilling[ness] to
muzzle [plaintiff’s] counsel at this early phase”
(id.), and it denies the motion (just as Judge Castillo
Under the circumstances, what makes sense is to deny Dkt. 635’s
attempt to obtain a global ruling, while at the same time
allowing that issue to be dealt with in the context of the trial
This Court so orders.
Defendants’ next effort, in D. Motion 6 (Dkt. 636), asks
that defendant Keith Herrera (“Herrera”) be permitted to withdraw
his years-long Fifth Amendment invocation in favor of his
testifying in the forthcoming trial.
Quite apart from the
irreparable prejudice that plaintiffs’ assert in their own
corresponding Motion 7, that contention impermissibly transmutes
Julius Caesar’s famous excerpt from De Bello Gallico that “All
Gaul is divided into three parts” into a modern description of
defendants’ position here--“All gall is indivisible.”
As the parties are well aware, because Herrera was the
target of both state and federal criminal proceedings (the former
beginning in 2006 and the latter in 2007), he continuously
invoked his Fifth Amendment privilege in this case by refusing to
answer portions of the Complaint and written discovery and almost
all questions asked during his deposition.
Now, with this case
just a few days short of its seventh anniversary and at long last
ready to be set for trial when the current motions in limine are
disposed of, Herrera wants to reverse course, heedless of the
fact that plaintiffs’ discovery as to Herrera (and perhaps
relatedly as to the other defendants as well) was necessarily
inhibited by Herrera’s stonewalling (as permissible as it was
during the pendency of the criminal proceedings he was facing).
To permit Herrera’s testimony at this point would essentially
allow him to avoid discovery altogether.
That last point brings Harris v. City of Chicago, 266 F.3d
750, 753-54 (7th Cir. 2001)--one of two Seventh Circuit cases
sought to be relied on by Herrera--into plaintiffs’ camp rather
And as for the other case, Evans v. City of
Chicago, 513 F.3d 735 (7th Cir. 2008), there both the majority
opinion (id. at 743, 746) and Judge Williams’ dissent (in its
entirety) recognized that “gaming” the system through such
tactics would be impermissible.
Plaintiffs’ response speaks to
that subject with total accuracy:
Defendant Herrera is engaged in a naked attempt to
convert his Fifth Amendment privilege from a sword to a
shield to gain an unfair advantage at trial. Defendant
Herrera has spoken publicly in a self-serving manner to
justify his conduct while simultaneously blocking
Plaintiffs from conducting any discovery by asserting
the Fifth Amendment. He has sought to come off the
Fifth only when doing so would give him the advantage.
This Court previously denied his attempts to withdraw
his Fifth Amendment assertions, and at this stage his
request should be similarly rebuffed.
This Court agrees.
Dkt. 636 is denied.
In D. Motion 9 (Dkt. 639) defendants advance the contention
often repeated in Section 1983 cases that seeks to bar any
mention of “sending a message” to the City of Chicago.
contention is more than a bit odd here, for any claim against the
City has been eliminated by its indemnification undertaking
suggested and approved by this Court.
It has long been settled
that no punitive damages may be awarded against a municipality
under Section 1983, while punitive damages are of course
allowable against individual police officers.1
Indeed, an express purpose of punitive damages is “to send a
message,” albeit not to the City of Chicago--see Instruction 3.13
prepared by the Committee on Pattern Civil Jury Instructions of
the Seventh Circuit.
As plaintiffs’ response reflects, several
of this Court’s colleagues have rejected the “don’t send a
message” argument in light of that potential even where the City
of Chicago has remained a defendant.
In this Court’s view, the better approach is to deny
Dkt. 639 as essentially moot, anticipating that the future
question of just how the partially permissible “send a message”
argument is sought to be presented at trial will be reviewed in
the context of the trial itself.
This Court so orders.
Dkt. 631, 634, 636, 635 and 639 (the latter two subject to
possible reconsideration at trial) are denied, while Dkt. 638 is
As for the rest of defendants’ motions, it has earlier
been stated that plaintiffs’ responses to several of them--D.
Motions 2, 3, 7 and 10--have referred to, without repeating,
plaintiffs’ briefing in support of their own motions.
This Court anticipates that subject and its appropriate
handling will be discussed during the jury instruction
Accordingly any piecemeal discussion of those motions at this
time seems inappropriate, and this Court will deal with them
after all of defendants’ responses to plaintiffs’ motions are in
Milton I. Shadur
Senior United States District Judge
October 2, 2013
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