Blackwell et al v. Kalinowski et al

Filing 80

MEMORANDUM Opinion and Order Signed by the Honorable Michael T. Mason on 4/25/2011.(rbf, )

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
VINCENT E. BLACKWELL and
ANGELA FORD
Plaintiffs,
v.
ANDREW P. KALINOWSKI, P.W.
RYSZKA (Star No. 12561), KEVIN
A. BOYER, TIM E. WOOD, SERGIO
LAUREL, MIRABEL CARDONA, and
CITY OF CHICAGO

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No. 08 C 7257
Mag. Judge Michael T. Mason

Defendants, )
MEMORANDUM OPINION AND ORDER
Before the Court are plaintiff Vincent Blackwell and Angela Ford’s (“plaintiffs”)
motions in limine and defendants Andrew Kalinowski, Pawel Ryszka, Tim E. Wood,
Kevin Boyer, Sergio Laurel and Mirabel Cardona’s (“defendants”) motion in limine. For
the reasons set forth below, plaintiffs’ motion in limine # 1 to bar evidence regarding
“bad acts” of parties or witnesses, including arrests, convictions, plaintiff Blackwell’s
suspended license, gang affiliation, tattoos, and prior use or sale of illegal drugs or
abuse of alcohol is granted in part and denied in part; plaintiffs’ motion in limine # 2 to
bar evidence of suspect cocaine, the Illinois State Police laboratory report, and the
police inventory report regarding suspect cocaine is granted; and plaintiffs’ motion in
limine # 3 to bar evidence of the dismissal of claims by the Court, and the findings and
proceedings of the City of Chicago Department of Administrative Hearings against
Angela Ford is granted. Defendants’ motion to preclude plaintiff from referencing any
violation of police department rules, policies, regulations and general orders is denied.

I.

BACKGROUND
According to the allegations in the complaint, in the early morning hours of

October 17, 2007, plaintiff Vincent Blackwell (“Blackwell”) was seated in the passenger
seat of a legally parked car. Plaintiff Angela Ford (“Ford”), who owns the car, had gone
into a nearby house. At that time, the individual defendants, who are or were Chicago
police officers, approached the car and ordered Blackwell to get out. They searched
Blackwell and the car, but found no contraband. Defendants nevertheless arrested
Blackwell, and seized the car. At the police station, Blackwell alleges that he was
shown bags containing what appeared to be a controlled substance. When Blackwell
protested that he did not have any drugs on him, defendants replied, "You do now."
Blackwell was charged with felony drug offenses and traffic charges, and spent two
months in jail. After Blackwell prevailed at a suppression hearing, the prosecution
dismissed the charges against him. Blackwell alleges that as a result of the defendant
officers' conduct, he sustained injuries, humiliation, and indignities, and suffered great
emotional pain and suffering. Plaintiffs' complaint alleges claims of false arrest,
unconstitutional search of the car, and a state law claim for malicious prosecution.
II.

LEGAL STANDARD
This Court has broad discretion in ruling on evidentiary questions presented

before trial on motions in limine. Jenkins v. Chrysler Motors Corp., 316 F.3d 663, 664
(7th Cir. 2002). The power to exclude evidence in limine derives from this Court’s
authority to manage trials. Luce v. United States, 469 U.S. 38, 41 n. 4, 105 S. Ct. 460
(1984). Evidence should be excluded in limine only where it is clearly inadmissible on
all potential grounds. Hawthorne Partners v. AT&T Techs., Inc., 831 F. Supp. 1398,
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1400 (N.D. Ill. 1993). “Unless evidence meets this high standard, evidentiary rulings
should be deferred until trial so that questions of foundation, relevancy and potential
prejudice may be resolved in proper context.” Id. Thus, the party moving to exclude
evidence in limine has the burden of establishing that the evidence is not admissible for
any purpose. Wilson v. Pope, 1997 WL 403684, *6 (N.D. Ill. July 14, 1997). Denial of a
motion in limine does not mean that all evidence contemplated by the motion will be
admitted at trial. Hawthorne, 831 F. Supp. at 1401. Rather, denial means the court
cannot determine whether the evidence in question should be excluded outside of the
trial context. Id.; Broom v. Bozell, Jacobs, Kenyon & Eckhardt, 867 F. Supp. 686, 69091 (N.D. Ill. 1994). Accordingly, this Court will entertain objections as they arise at trial,
even if the proffer falls within the scope of a denied motion in limine. Hawthorne, 831 F.
Supp. at 1401, citing United States v. Connelly, 874 F. 2d 412, 416 (7th Cir. 1989).
With these guidelines in mind, we turn to the motions before this Court.
III.

DISCUSSION
A.

Plaintiffs’ Motion in Limine # 1

Plaintiffs ask this Court to bar evidence, testimony and argument regarding ”bad
acts” of parties or witnesses, including arrests, convictions, Blackwell’s suspended
license, gang affiliation, tattoos, and prior use or sale of illegal drugs or abuse of
alcohol. In response, defendants ask this Court to strike plaintiffs’ motion in limine # 1
because they claim plaintiffs violated this Court’s standing order restricting each party to
three motions in limine. Defendants complain that plaintiffs have combined five
separate motions in limine into one. However, each category of evidence plaintiffs seek
to bar falls under the umbrella of prior bad acts. Accordingly, defendants’ motion to
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strike plaintiffs’ motion in limine # 1 is denied.
1.

Prior Arrests and Convictions

Plaintiffs ask this Court to bar defendants from introducing any evidence,
testimony or argument regarding prior arrests and convictions of plaintiffs Blackwell and
Ford, and witness Michelle Meyers. Defendants’ response does not address whether
they intend to introduce such evidence as it relates to Ford or Michelle Meyers.
Accordingly, the Court assumes defendants have no intention of eliciting evidence or
testimony relating to any prior arrests or convictions of Ford or Meyers. As such, this
portion of motion in limine # 1 is granted.
With respect to plaintiff Blackwell, defendants seek to introduce multiple prior
arrests and multiple prior convictions. We address the prior convictions first. In 1998,
Blackwell was convicted of robbery, served ten years, and was released on September
17, 2007. Defendants argue that Blackwell’s 1998 conviction is admissible under
Federal Rule of Evidence 609(a)(1), which provides that a prior conviction may be used
to attack the credibility of a witness if the conviction is less than ten years old and the
crime was punishable by death or more than one year in prison. Fed. R. Evid.
609(a)(1). Blackwell’s 1998 conviction meets these requirements, but admission under
Rule 609(a)(1) is subject to Rule 403, which excludes evidence when its potential for
unfair prejudice substantially outweighs its probative value. Fed. R. Evid. 403.
Defendants have not demonstrated that Blackwell’s 1998 robbery conviction is
probative in this case or relevant to Blackwell’s credibility. Therefore, the Court finds
that the 1998 conviction has minimal probative value. Moreover, the Court finds that the
danger that Blackwell’s prior conviction may cause unfair prejudice substantially
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outweighs any probative value the 1998 conviction offers. Townsend v. Benya, 287
F.Supp.2d 868, 874 (N.D.Ill. 2003), citing United States v. Neely, 980 F.2d 1074, 1080
(7th Cir.1992); see also, Brandon v. Village of Maywood, 179 F.Supp.2d 847, 854
(N.D.Ill. 2001) (recognizing that “[a] conviction for comparatively minor drug offenses is
less probative of truthfulness than one for perjury or fraud. On the other hand, the
potential for prejudice to [the plaintiff] is great.”). Based on the foregoing, defendants
are barred from introducing evidence of the 1998 conviction at trial.
Next, defendants argue that Blackwell’s other prior convictions (there are seven)
are admissible not to prove criminal propensity, but to prove motive, knowledge, intent,
absence of mistake or accident under Federal Rule of Evidence 404(b). Defendants
argue that Blackwell’s prior convictions go to his credibility, intent, motive and to counter
his damages allegations. But defendants failed to demonstrate how Blackwell’s prior
convictions fall within the parameters of Rule 404(b). Indeed, defendants have not
identified any permissible purpose under Rule 404(b) for which any of the prior
convictions should be admitted.
Defendants also claim that Blackwell’s prior convictions may be used to establish
bias against the City of Chicago Police Department or the police in general. However,
defendants failed to offer any specific details regarding Blackwell’s prior arrests that
would show any particular bias against the police. Furthermore, taken to its logical
conclusion, defendants’ argument suggests that the entire criminal arrest and conviction
record of any plaintiff that ever sued a police officer would be admissible to show a
potential bias. Rules 609(a)(1) and 403 clearly demonstrate otherwise.
Moreover, Blackwell’s other prior convictions do not fall within the parameters of
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Rule 609(a)(1). In addition, again, we find that the danger of unfair prejudice
substantially outweighs any probative value of Blackwell’s other prior convictions. Thus,
plaintiffs’ motion in limine # 1 to bar evidence of all of Blackwell’s prior convictions is
granted.
Next, we turn to plaintiff Blackwell’s prior arrests. Blackwell has an extensive
arrest record spanning over thirty years. Plaintiffs ask this Court to bar any reference to
Blackwell’s arrest record. Plaintiffs argue that the arrests are not admissible under Rule
609, the evidence is not probative of any issue in this case, and the evidence is
prejudicial and embarrassing to Blackwell.
Defendants seek to introduce all of Blackwell’s prior arrests (there are nineteen).
Defendants argue that the evidence is admissible under Rule 404(b), to show bias, and
for impeachment purposes. Defendants’ arguments are baseless. First, defendants
failed to demonstrate how Blackwell’s prior arrests are admissible under Rule 404(b).
Defendants claim that the prior arrests are relevant to determine credibility, intent and
motive under Rule 404(b). Credibility is not a permissible purpose for admitting
evidence under Rule 404(b) and defendants failed to explain how any of the prior
arrests would shed light on Blackwell’s motive or intent. Second, for the reasons set
forth above, we reject defendants’ claim that the arrests may be used to establish bias
against the police. Third, defendants mistakenly contend that they “may properly
pursue testimonial evidence regarding the prior arrests as it would be relevant for
impeachment.” (Resp. at 4). As indicated above, Rule 609 allows for the admission of
evidence of convictions for impeachment, not arrests.
Defendants further argue that Blackwell’s prior arrests are relevant to determine
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the amount of damages he has suffered as a result of the alleged seizure he claims he
was subjected to in this case. Blackwell’s complaint alleges that he suffered “great
mental and emotional pain and suffering” as a result of defendants’ conduct.
Defendants contend that evidence of Blackwell’s prior arrests is admissible to rebut his
claim for emotional damages. While there is case law in the Northern District of Illinois
suggesting that evidence of prior arrests is relevant to a claim for emotional distress,
Redmond v. City of Chicago, 2008 WL 539164, *2 (N.D. Ill. 2008), other courts in this
district have found that “to be relevant, the arrests must be substantially similar and the
court must conduct a prejudice analysis.” Moore v. City of Chicago, 2008 WL 4549137,
*1 (N.D.Ill. 2008), citing Brandon v. Village of Maywood, 179 F.Supp.2d 847, 854-55
(N.D.Ill. 2001); Caldwell v. City of Chicago, 2010 WL 380696, *1 (N.D.Ill. 2010). At this
juncture, it is simply not clear whether Blackwell’s October 17, 2007 arrest involves facts
similar to his prior arrests. If that is the case, the prior arrests may be relevant to
determine how much distress Blackwell suffered as a result of the October 17th arrest.
Because it is unclear whether the prior arrests involve facts similar to the arrest at issue,
and because the Court would still have to conduct a prejudice analysis even if we find
the prior arrests are relevant and probative, we cannot determine outside of the context
of trial whether evidence of Blackwell’s prior arrests is clearly inadmissible on all
potential grounds. Therefore, to the extent that plaintiffs seek to bar all evidence of
Blackwell’s prior arrests, plaintiffs’ motion in limine # 1 is denied without prejudice.
Defendants should request a sidebar before attempting to introduce any evidence
relating to Blackwell’s prior arrests at trial.
2.

Suspended License
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Plaintiffs ask this Court to preclude defendants from introducing plaintiff
Blackwell’s driver’s license abstract. Plaintiffs are willing to stipulate that at the time of
Mr. Blackwell’s arrest on October 17, 2007, his license was suspended due to an
unpaid judgment. Plaintiffs argue that the abstract contains traffic offenses that are not
relevant, that these offenses are not admissible under Rule 609, and that it would be
prejudicial for the jury to see convictions for traffic offenses. Defendants argue that the
abstract is relevant because while defendants claim they saw Blackwell driving plaintiff
Ford’s car on the night of the arrest, Blackwell contends that he was sitting in the
passenger seat of the car because his license was suspended. According to
defendants, the abstract details a number of traffic charges for driving on a revoked
license and thus, is highly probative of whether Blackwell would drive while his license is
suspended. While we agree that the abstract is relevant, it is not clear at this juncture
whether the prior traffic convictions and/or charges are admissible under Federal Rule
of Evidence 609 or Rule 403, primarily because neither party submitted the abstract to
this Court. Accordingly, this portion of plaintiffs’ motion in limine # 1 is denied without
prejudice. Plaintiffs are free to object to the introduction of the abstract at trial.
3.

Gang Affiliation and Tattoos

Plaintiffs ask this Court to bar any questions, argument or innuendo regarding
gang affiliation and tattoos. Defendants have no objection. Accordingly, this portion of
plaintiffs’ motion in limine # 1 is granted.
4.

Use or Sale of Drugs or Abuse of Alcohol

Next, pursuant to Federal Rules of Evidence 402, 403, 404(a), 404(b) and 608,
plaintiffs ask this Court to bar any inference or argument that plaintiffs have used or sold
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illegal drugs or abused alcohol in the past. Defendants have stated that they do not
intend to elicit testimony regarding the use of drugs or abuse of alcohol. However,
defendants do intend to elicit testimony regarding the sale of drugs. According to
defendants, plaintiff Blackwell made a statement to defendants while at the scene of his
arrest that he was there to sell drugs. Defendants claim that this statement is
admissible as a statement against interest and is relevant to why Blackwell was on the
block at the time of his arrest. We agree. Furthermore, we find that the probative value
substantially outweighs the danger of unfair prejudice. Accordingly, plaintiffs’ motion in
limine # 1 is denied to the extent it seeks to bar defendants from questioning Blackwell
about why he was on the block at the time of his arrest or about Blackwell’s statement
that he was there to sell drugs.
B.

Plaintiffs’ Motion in Limine # 2

Plaintiffs’ motion in limine # 2 seeks to bar evidence, testimony and argument
regarding physical evidence of suspect cocaine, the Illinois State Police laboratory
report, and the police inventory report regarding suspect cocaine. Defendants have no
objection to this motion. Accordingly, plaintiffs’ motion in limine # 2 is granted.
C.

Plaintiffs’ Motion in Limine # 3

Plaintiffs ask this Court to bar evidence, testimony and argument regarding the
dismissal of claims by the Court, and the findings and proceedings of the City of
Chicago Department of Administrative Hearings against Angela Ford. Again,
defendants have no objection to this motion. Accordingly, plaintiffs’ motion in limine # 3
is granted. To the extent that defendants seek to impeach any witness with the
transcript of the administrative hearing, the Court will entertain and rule on any
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objections as they arise during the trial.
D.

Defendants’ Motion in Limine

Defendants ask this Court to bar any testimony, evidence or argument regarding
the existence of, or standards set by, any Chicago Police Department General Orders
or other police department rules, policies and procedures. Defendants argue that such
orders and procedures are not proper evidence on the issue of whether defendant
officers’ conduct was unconstitutional or willful and wanton. Defendants further contend
that admission of such evidence would unduly prejudice and confuse the jury on the
appropriate standard of liability. Defendants are correct that the “violation of police
regulations or even a state law is completely immaterial as to the question of whether a
violation of the federal constitution has been established.” Thompson v. City of
Chicago, 472 F.3d 444, 454 (7th Cir. 2006). Defendants are also correct that under
Illinois law, the violation of a police department general order does not “constitute
evidence of negligence, or beyond that, willful and wanton conduct.” Morton v. City of
Chicago, 286 Ill. App. 3d 444, 454, 676 N.E.2d 985 (1st Dist. 1997); see also,
Thompson, 472 F.3d at 457.
Plaintiffs concede that a violation of a police department rule or general order
does not constitute proof of a constitutional violation. Instead, they argue that it is
impossible to identify every possible scenario under which a particular rule might
become relevant for purposes other than proof of a constitutional violation and as a
result, defendants’ blanket request to bar reference to all general orders, rules, policies
and procedures is too broad. This Court agrees. It is conceivable that plaintiffs could

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identify a particular rule, general order, policy or procedure that is relevant.1 The Court
would then have to determine whether the probative value of such evidence is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury under Federal Rule of Evidence 403. Because it is not clear at this
juncture whether all of the evidence defendants seek to bar is inadmissible on all
potential grounds, defendants’ motion in limine is denied without prejudice. Defendants
are free to object to the introduction of police department general orders, rules, policies
and procedures at trial. This Court will entertain and rule on any such objections as
they arise.
IV.

CONCLUSION
For the reasons set forth above, plaintiffs’ motion in limine # 1 is granted in part

and denied in part; plaintiffs’ motion in limine # 2 is granted; and plaintiffs’ motion in
limine # 3 is granted. Defendants’ motion in limine is denied. It is so ordered.

ENTERED:

__________________________
MICHAEL T. MASON
United States Magistrate Judge
Dated: April 25, 2011

1

While it is theoretically possible that a particular rule or general order could be relevant
and probative, we reject plaintiffs’ contention that the failure to follow general orders or other
departmental rules constitutes evidence of willful and wanton conduct. Morton, 286 Ill. App. 3d
at 454.

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