Scott v. Wallace et al

Filing 138

MEMORANDUM Opinion and Order Signed by the Honorable Milton I. Shadur on 2/24/2012:Mailed notice(srn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
WESLEY SCOTT,
Plaintiff,
v.
CHICAGO POLICE OFFICER
SERGEANT WALLACE, STAR #7343,
et al.,
Defendants.

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No.

07 C 4287

MEMORANDUM OPINION AND ORDER
In compliance with this Court’s brief February 9, 2012
memorandum order, counsel for plaintiff Wesley Scott (“Scott”)
has filed responses to the 15 motions in limine (respectively
cited “Motion -- (Dkt. --)”) that defense counsel had filed after
the entry of the revised final pretrial order that has set the
ground rules for trial of the case.

This memorandum opinion and

order will address the numerous motions.
Two of the motions are unopposed and are granted as a matter
of course.

Those comprise Motion 1 (Dkt. 103), which requests

the exclusion of witnesses pursuant to Fed. R. Evid. 615, and
Motion 10 (Dkt. 108), which seeks dismissal of any claims against
unknown officers.

On, then, to the motions that require more

discussion.
Motion 2 (Dkt. 104) asks for restraints against trial
publicity.

But as Scott’s counsel points out, this District

Court has spelled out some specifically permissible areas of

lawyer comment in its LR 83.53.6(c)--and indeed, that laundry
list really supplements the First Amendment rights of lawyers as
more generally stated in LR 83.53.6(a).1

In sum, Motion 2 is

denied, with LR 33.53.6 to set the standards instead.
Motion 3 (Dkt. 105) seeks to keep from the jury any
knowledge (1) that the defendant police officers may be
indemnified by the City of Chicago for any compensatory damages
award and (2) that the City is paying for the defense of the
case.

Scott’s counsel responds by accepting that constraint so

long as defendants do not argue that they are paying for their
own damages or defense.
But neither side has addressed the more subtle nuances posed
by this disclosure issue.

To be sure, it is important that a

jury that votes in favor of a plaintiff and against an officer in
a 42 U.S.C. §1983 action must not be encouraged to inflate a
compensatory damages award because the jury learns that the award
will come out of a deeper pocket than that possessed by the
officer2--but on the other hand, a jury aware of the level of

1

This Court has more than a casual familiarity with that
LR: As the Committee Comment to LR 83.53.6 states, it is based
in part on the decision in Chicago Council of Lawyers v. Bauer,
522 F.2d 242 (7th Cir. 1975), a case in which this Court (then a
practicing lawyer) succeeded in having held unconstitutional on
First Amendment grounds the then-existing (and more restrictive)
District Court rule on lawyer comments.
2

On the flip side, in these bleak days for Chicago’s
finances any information as to indemnification might prompt a
lowball verdict.
2

police compensation might be inclined to cut back on a reasonable
damages figure if it believes mistakenly that the officer will
pay the compensatory damages himself or herself.

There is also

the consideration that a jury should be informed that any
punitive damages award must be borne by an individual defendant
personally, and an instruction along those lines can convey to a
sharp juror the implication that the City will be on the hook for
compensatory damages.
In sum, the ultimate handling of the issue ought to await
resolution until the time of trial.

At that point the nature of

the evidence may provide better guidance as to the most equitable
handling of the matter.

In the meantime Motion 3 is granted,

subject to its being revisited during the trial.
Motion 4 (Dkt. 106) asks that Scott’s counsel should not
argue that the jury should “send a message” to the City or the
defendant officers by its verdict, while Scott’s counsel asks
that the motion be denied because of the absence of supportive
authority and because the “motion is too vague to be
administered.”

But the thrust of the motion is plain:

to head

off an impermissible inflation of compensatory damages through an
appeal to passion rather than reason.
That said, however, it is entirely permissible to argue to a
jury that its verdict should teach a defendant officer (and even,
perhaps, other officers who may learn of the verdict) that he or

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she should not be permitted to escape responsibility for an abuse
of the powers that are given to law enforcement personnel.

And

where potential punitive damages are at issue, the whole idea is
to “send a message” to the offending officer through an
appropriate instruction.

Accordingly Motion 4 is denied as

presented, subject to possible review in the context of trial.
Motion 5 (Dkt. 107) seeks to bar testimony or evidence as to
an alleged “code of silence,” though defense counsel acknowledges
that Scott’s lawyer has never raised that prospect during the
course of discovery.

Again Scott’s counsel says that he “has no

idea what Defendants are referring to” and that the “motion is
too vague to be administered and appears to be based on a concept
in the minds of Defendants not Plaintiffs.”

Although the motion

as posed will be granted, Scott’s counsel is free to make a
related argument against the credibility of officer witnesses (on
that score it will be recalled that Seventh Circuit Civil Jury
Instruction 1.13, prepared by the Committee on Pattern Civil Jury
Instructions, refers to “any interest, bias or prejudice the
witness may have” as a permissible consideration bearing on
credibility).
Motion 6 (Dkt. 113) would bar any testimony or evidence
relating to Counts II and III of Scott’s Third Amended Complaint,
both those counts having been dismissed by this Court’s
December 29, 2008 oral ruling.

But that motion ignores the fact

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that this Court held in part that “the allegations relating to
the incident in 2005 remain” (Dkt. 42).

Although no liability

may be assessed for that earlier (April 4, 2005) incident,
evidence regarding it may be considered by the jury as bearing on
the relevant elements regarding the November 3, 2006 incident
sued upon.

Hence Motion 6 is denied.

Motion 7 (Dkt. 114) is labeled “to bar testimony or evidence
relating to lay opinions and previously undisclosed opinions.”
So framed, it is obviously overbroad--for example, lay testimony
under Fed. R. Evid. 701 is perfectly permissible as to
observations of emotional distress on the part of a plaintiff
(see, e.g., Bruso v. United Airlines, Inc., 239 F.3d 848, 857
(7th Cir. 2001)), in addition to which the response by Scott’s
counsel (Dkt. 128) cites a host of other cases that allow lay
testimony in related areas.

Motion 7 is denied as well.

Motion 8 (Dkt. 115) asks that what is called “unrelated
conduct of Defendant Officers” be kept from the jury.

In

response Scott’s counsel characterizes the request as “too vague”
and as “requir[ing] Plaintiff to police the evidence although
none was brought up in discovery.”

Although this Court grants

Motion 8, the issue of what conduct is “unrelated” must await
ultimate determination at trial.
Motion 9 (Dkt. 116) similarly asks that evidence or
testimony “regarding matters unrelated to the underlying 11/3/06

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incident” be barred.

“Unrelated” could perhaps be equated to

“not relevant,” thus foreclosing the use of such evidence via a
tautological application of Fed. R. Evid. 402.

But defense

counsel obviously seeks to cut a broader swath than that, so that
the motion is denied for reasons previously stated.
Motion 11 (Dkt. 117) attempts to ring another change on
several of the earlier-discussed motions by asking to exclude
“any evidence of incidents of April 4, 2005.”

As before, that

subject will be for the jury to evaluate at trial--and that means
the evidence will be admitted under proper instructions.
Motion 11 is denied.
Finally, Motions 12 through 15 seek to bar or dismiss any
claims against four of the defendant officers--Willis Rounds
(Dkt. 109), Larry Watson (Dkt. 110), Brian Berkowitz (Dkt. 111)
and Norris Halsell (Dkt. 112).

Scott’s deposition testimony was

that those officers were present during the November 3, 2006
incident sued upon here, but he has ascribed no specific conduct
to any of them.

But as the several motions acknowledge, even

though mere presence at the scene cannot serve to establish a
violation of constitutional rights, the failure to intervene to
prevent or to halt constitutional violations by other officers
may be a predicate for liability (to that end, each of the
motions cites Lanigan v. Vill. of East Hazel Crest, 110 F.3d 467,
477-78 (7th Cir. 1997)).

Because that issue will be for the jury

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to evaluate, all four motions are denied.
Conclusion
In summary:
1.

Motions 1 (Dkt. 103) and 10 (Dkt. 108) are granted

without objection.
2.

Motions 5 (Dkt. 107) and 8 (Dkt. 115) are also

granted.
3.

Motion 3 (Dkt. 105) is granted, subject to a

possible revisiting of the subject at trial.
4.

Motions 2 (Dkt. 104), 6 (Dkt. 113), 7 (Dkt. 114), 9

(Dkt. 116), 11 (Dkt. 117), 12 (Dkt. 109), 13 (Dkt. 110), 14
(Dkt. 111) and 15 (Dkt. 112) are denied.
5.

Motion 4 (Dkt. 106) is denied, subject to a

possible revisiting of the subject at trial.
Because by definition all such in limine rulings on evidentiary
matters (even though they are the result of studied
consideration) precede the trial, defense counsel is reminded of
the need to reassert the motions for ultimate confirmation of
those evidentiary rulings at trial.

________________________________________
Milton I. Shadur
Senior United States District Judge
Date:

February 24, 2012

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