Favila et al v. City Of Chicago et al

Filing 112

MEMORANDUM Opinion and Order Signed by the Honorable Milton I. Shadur on 6/1/2011:Mailed notice(srn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DAGOBERTO FAVILA, et al.,

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

No. 09 C 3265

MEMORANDUM OPINION AND ORDER
In conformity with the schedule established during the
April 6, 2011 conference during which this Court and the parties’
counsel discussed their jointly-proposed final pretrial order
(“FPTO”) and this Court then entered the FPTO, each side has
tendered a set of motions in limine1 and, in turn, responded to
the other’s motions in limine.2

This memorandum opinion and

order will deal with both sides’ submissions.
Plaintiffs’ Motions in Limine
Although P. Motion 1 seeks the typical noncontroversial
order excluding witnesses from the courtroom during the trial
(such exclusion would of course cease to operate when a witness
has testified and will no longer be called to the stand),
defendants’ response is puzzling.

After saying they “have no

1

Those motions will be referred to here as “P. Motion” and
“D. Motion.” As for defense counsel’s repeated misspelling
(“liminie” instead of “limine”) in their submissions, no penalty
will be imposed for their having flunked Latin 101.
2

Resp.”

Those responses will be cited here as “P. Resp.” and “D.

objection” to the motion (D. Resp. 1 to P. Motion 1),3 defense
counsel inexplicably asks that the motion be denied.

Instead it

is of course granted, as qualified by the two limitations
referred to in n.3
P. Motion 2 seeks “to bar Defendants from introducing
evidence regarding the Plaintiffs’ or any witnesses’ immigration
or citizenship status.”

Defense counsel’s opposition reflects

serious discredit on themselves.
What they say, before going on to elaborate, is that
“Plaintiffs have directly placed their immigration status at
issue” (D. Resp. 1 to P. Motion 2).

On that score it is quite

true that plaintiffs’ First Amended Complaint at Law
(“Complaint”) ¶¶1 and 2 assert that both plaintiffs--Dagoberto
Favila (“Favila”) and Emma Estevane (“Estevane”)--are United
States citizens when they are in fact noncitizens.

But those

allegations, though untrue, could not be less relevant to
plaintiffs’ Section 1983 claims or to the defenses of the City of
Chicago (“City”) and its codefendant Chicago Police Officers.4

3

D. Resp. 1 does say that the order should not operate to
exclude the parties themselves, but that is of course the
universally followed rule, so that such a qualification is
understood. And defendants’ request that the exclusion be
reciprocal (id.) is really unnecessary, because the motion itself
speaks of “excluding all witnesses,” not just defendants’.
4

All of us who are professionals in the practice of law
know that it is lawyers and not their clients who prepare
pleadings, and--as is true in all instances in the federal
practice, save those limited situations where verification is
2

This Court’s copy of the Constitution does not limit the
applicability of the Fourteenth Amendment, or the provisions of
the Bill of Rights that it incorporates, to citizens alone.

It

is worth noting that Instruction 1.01 of the Seventh Circuit’s
Pattern Jury Instructions, given in every civil trial, states in
part:
You should not be influenced by any person’s race,
color, religion, national ancestry, or sex.
And Instruction 1.14, speaking of prior inconsistent statements
that may come before the jury, says in part (emphasis added):
[Y]ou should consider whether it was simply an innocent
error or an intentional falsehood and whether it
concerns an important or an unimportant detail.
As defense counsel would have it, plaintiffs’ status as
citizens or immigrants is critical because “it implicates their
credibility and ability to testify truthfully” (D. Resp. 2 to P.
Motion 2).

And for that jingoistic proposition counsel cite

Hawthorne Partners v. AT&T Tech., Inc., 831 F.Supp. 1398, 1400
(N.D. Ill. 1993), which--quite apart from its nonprecedential
status in any event--says nothing of the sort.
This Court will not be a party to allowing defense counsel
to take such a cheap shot at plaintiffs or other witnesses who

necessary--the Complaint here was signed by plaintiffs’ counsel
and not by plaintiffs themselves. This is not to say that a
party may shirk responsibility for what is alleged on his or her
behalf, but the ensuing discussion in the text reveals just how
meretricious defense counsel’s position is on this issue.
3

are noncitizens.

As to the latter, if their status as immigrants

has some relevance to their testimony (as it clearly does not as
to plaintiffs themselves), this Court may consider the issue
again at trial.

But for now P. Motion 2 is granted

unequivocally, both because of the constraint imposed by Fed. R.
Evid. (“Evid. R.”) 404(b) and under the balancing called for by
Evid. R. 403.5
P. Motion 3 seeks to allow plaintiffs “to call non-party
Chicago police officers and employees as adverse witnesses.”
Again defendants resist, and once again their position--properly
understood--is without merit.
There is a tendency among many lawyers to use the term
“adverse witnesses,” which carries the implication that some
level of hostility on the witnesses’ part must be demonstrated by
the interrogating party.

But the actual language of Evid. R.

611(c), which permits the use of leading questions, actually
speaks instead of “a hostile witness, an adverse party, or a
witness identified with an adverse party.”
That last of the three categories plainly embraces City
employees such as its police officers in a case such as this one.
That is both the approach and the holding adopted by our Court of

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In this instance the issue of citizenship or
noncitizenship is not only irrelevant, but it has no probative
force whatever and would clearly be unfairly prejudicial to
plaintiffs.
4

Appeals three decades back in Ellis v. City of Chicago, 667 F.2d
606, 612-13 (7th Cir. 1981)--a case that, like this one, asserted
a violation of constitutional rights actionable under 42 U.S.C.
§1983 (“Section 1983”) and targeted City and a police officer as
defendants, with the witnesses at issue being fellow officers.
What Judge Cudahy said for the Ellis panel applies here with
equal force, and defense counsel’s effort to distinguish that
case is unavailing.
To be sure, defense counsel cannot be faulted entirely here,
because they may have been led astray by plaintiffs’ counsel’s
use of the term “adverse witness.”

But both sides’ counsel’s

usage in that respect does not change the analysis, for the real
test for leading questions under the Rule is whether the other
officers are “identified with an adverse party” in this case--and
they are.

Hence P. Motion 3 is granted as well.

P. Motion 4 at 4 asks to “preclud[e] defendants from
testifying, arguing and/or implying that Favila and/or Estevane
possessed a weapon or ‘contraband.’”

That motion is puzzling,

because D. Resp. 1 to P. Motion 4 says that “whether Plaintiff
Dagoberto Favila possessed any contraband or weapon is a
dispositive issue” and goes on (id.) to charge plaintiffs’
counsel with “exaggeration of the facts [that] drastically alter
this case by slanting the facts in Plaintiffs’ favor.”
Although defense counsel follow that statement with a

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detailed recital of what they refer to as “the key facts in this
case” (id. at 2), that description regrettably does not pose the
issues in dispute between the parties in a way that allows this
Court to rule on the motion in an informed manner.

What would

seem most useful in that respect would be an in-person oral
presentation by both sides’ counsel, during which this Court can
pose questions that would bear on the admissibility or
inadmissibility of the challenged areas of evidence (or
nonevidence).

Accordingly P. Motion 4 is deferred.

P. Motion 5 asks that defendants be precluded “from
introducing statements or arguing that there was ‘armed security’
or ‘armed guards’ at 2914 N. Springfield.”

As with the motion

just discussed, counsel for both parties have the obvious
advantage derived from having lived through the discovery
process, as this Court does not.

Again it makes sense to defer

ruling on P. Motion 5 until the matter can be explored further in
the manner discussed above as to P. Motion 4.
P. Motion 6 seeks to bar “[a]ny references to evidence that
guns and drugs were recovered from 2914 North Springfield.”

It

is undisputed that the search warrant possessed by the police
officers specifically listed that property, while both plaintiffs
lived not there, but next door at 2912 North Springfield.
According to P. Motion 6 at 10 (emphasis added), “[t]he
claims asserted by plaintiffs occurred well before the police

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officers traveled to 2914 N. Springfield,” and the “police
officers traveled to 2914 N. Springfield after leaving 2912 N.
Springfield.”6

Yet defense counsel oppose the motion by

repeating in a number of different ways that the “two situations
are inextricably linked” (D. Resp. 4 to P. Motion 6) and the
like, so that what they found at the 2914 property when executing
the search warrant somehow bears on their having focused on the
wrong property to begin with.7
Whether defendants violated plaintiffs’ constitutional
rights by their conduct is of course a function of what they did
(or perhaps what they believed as to plaintiffs) when they acted,
an issue to be more finely tuned at trial.

Those matters cannot

be bootstrapped by the consequences of their later (or even
simultaneous) search of the 2914 property.

It is this Court’s

understanding that no evidence at all links plaintiffs to the
fruits of the search at 2914 North Springfield.

P. Motion 6 is

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D. Resp. 3 to P. Motion 6 disputes that description by
asserting that “the situations occurred simultaneously.” But
defendants clearly fare no better on the irrelevancy front even
if they are correct in that respect.
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While defense counsel accuse plaintiffs’ counsel of
distorting the facts, their P. Motion 6 Resp. 4 says “the sole
reason Defendants went to 2912/2914 N. Springfield on
September 24, 2008 is because they were executing a search
warrant for weapons and narcotics at 2914 North Springfield.”
Any such coupling of the two properties as though they were a
horse race entry (1 and 1A) is unacceptable, as though the
specification of the other property (2914) in the search warrant
gave the officers free license to do what they wanted in
plaintiffs’ next-door property (2912).
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granted.
Finally, P. Motion 7 asks to bar “[a]ny reference that the
individual police officers will be responsible for the payment of
compensatory damages.”

Although defense counsel mysteriously

caption their responsive statement as “Defendants’ Response to
Plaintiffs’ Motion in Liminie [sic] No. 7 To Allow Plaintiffs To
Call Adverse Witnesses,” both that caption and the opening
paragraph of the response have carelessly copied the same opening
portions of their already-ruled-upon response to P. Motion 3.
Defense counsel clearly did not proofread their submission before
filing it, but that error can be disregarded because their
substantive argument does respond to P. Motion 7.
On the merits of P. Motion 7, needless to say, no one wants
to take any step that might encourage jurors to award excessive
damages because they have been made aware of a deeper pocket
(that of City) to look to.

At the same time, the existence of a

prayer for punitive damages may call for an appropriate
instruction in that respect.

Meanwhile, P. Motion 7, as it is

actually framed, is granted--this Court expects to be silent on
the subject of responsibility for compensatory damages unless
developments at trial were to counsel otherwise.
Defendants’ Motions in Limine
D. Motion 1 is really the mirror image of the just-discussed
P. Motion 7:

It seeks to bar plaintiffs from arguing that

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compensatory damages will be paid by City.

Plaintiffs’ counsel

respond that they do not intend any such argument unless
defendants “open the door” to the indemnification issue by any
argument or implication “that it would create a hardship on the
individual defendants to pay a monetary award.”

That is sound,

and D. Motion 1 is granted, subject to that possible exception.
D. Motion 2 seeks “to bar evidence that the City of Chicago
failed to discipline the individual defendant officers for any
alleged misconduct.”

Again plaintiffs have no quarrel with that,

provided that defendants do not try to shoehorn the subject into
the case by adverting to the absence of any disciplinary
imposition.

So D. Motion 2 is granted, again subject to that

possible exception.
D. Motion 3 asks to preclude any reference to prior
disciplinary records of the defendant officers or other nonparty
police witnesses.

Plaintiffs disclaim any intention to do so,

and D. Motion 3 is granted.
D. Motion 4 asks that this Court “bar any argument or
testimony regarding the negligent or improper training,
monitoring, control, discipline or hiring of police officers,
including defendants.”

On that score plaintiffs’ counsel

disclaim any intention to advance a Monell-type claim, so D.
Motion 4 is granted as well (unless, of course, defendants
themselves were to bring the matter into play at trial).

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D. Motion 5 asks “to bar improper argument or innuendo that
plaintiffs seek to ‘send a message’ to the City or the police.”
That request is flawed as it is framed, because the word
“improper” begs the question.
As chance would have it, this Court dealt with and rejected
just such a motion almost exactly two months ago in Hudson v.
City of Chicago, No. 09 C 1454, 2011 WL 1303303, at *2 (Mar. 31).
D. Motion 5 is denied for the same reasons that were stated in
Hudson.
D. Motion 6 seeks “to bar any testimony or argument that
defendant officers or others conspired to cover up this
incident.”

Just as with D. Motion 5, this Court’s just-referred-

to memorandum opinion and order in the Hudson case considered and
rejected a like motion (that was D. Motion 1 in Hudson).
Court sees no reason to reinvent the wheel.

This

For the reasons

stated both in Hudson and in the Galvan v. Norberg opinion cited
there, D. Motion 6 is denied.8
D. Motion 7 asks “to bar evidence regarding ‘Code of
Silence,’ ‘Blue Wall’ or any claim of a cover-up.”

This appears

to be further proof that counsel representing City and its police
officers in Section 1983 cases have a stable of boilerplate
contentions that they wheel out in every case.

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Once more a

This denial is without prejudice to the reassertion of
any objections on that score in the context of specific evidence
when proffered at trial.
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comparable motion was advanced and rejected in Hudson and Galvan,
and it is denied here too (but on the same without-prejudice
basis as just stated in n.8 regarding D. Motion 6).
D. Motion 8 seeks to preclude “evidence of lay opinions
regarding physical or mental diagnosis.”

Plaintiffs respond by

specifying that they will proffer their own testimony on those
subjects and by disavowing any intention to offer expert
opinions.

Because D. Motion 8 appears to impinge inappropriately

on plaintiffs’ anticipated testimony, the motion is denied.
D. Motion 9 moves to different ground, seeking “to bar any
evidence, testimony, or reference to any violation of Chicago
Police Department general orders, regulations or directives”-still another of the standard objections that City’s counsel
appear to put forward in every case.

It is of course true that

any such claimed violations may not implicate federal
constitutional rights cognizable under Section 1983, but just as
this Court held in its Galvan opinion, D. Motion 9 is denied as
overbroad.
D. Motion 10 moves into more case-specific territory, asking
to preclude testimony of Christopher Hansen, Shelia Gara and
Mario Ibanez.

Plaintiffs’ counsel respond correctly that this

subject was discussed and dealt with during the pretrial
conference that resulted in approval of the FPTO.

D. Motion 10

is therefore denied, with a suggestion that defense counsel

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confer with plaintiffs’ counsel as to the possible resolution of
some proposals made by the latter in their response.
D. Motion 11 seeks “to bar the introduction of the 911 call
made by plaintiff Emma Estevane.”

In part that subject was dealt

with earlier at the conference that resulted in approval of the
FPTO.

That discussion resulted in this Court’s rejection of

defendants’ objection as to admissibility of the 911 recording.
Defendants’ renewed objections are without merit, and D.
Motion 11 is also denied.
D. Motion 12 targets the possible introduction of the
photographic lineups of officers Vega and Merck and Sergeant
DeJesus contained in the IPRA file.

As plaintiffs’ counsel

respond in part:
Essentially, defendants ask this Court to suppress the
out of court identification of the individual
defendants.
But such identification of the defendants targeted here is an
integral aspect of the case for the reasons stated in plaintiffs’
response.

Defendants’ objections are unpersuasive, and D.

Motion 12 is denied.
D. Motion 13 asks to preclude “evidence of the IPRA
investigation into this matter and the nature and quality of the
investigation.”

Plaintiffs’ response disclaims any “inten[tion]

to argue or attempt to elicit evidence as to the quality or
nature of the IPRA investigation”--in part the response explains

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plaintiffs’ counsel’s understanding that the investigation is
still ongoing, with no findings or recommendations having been
made.
Although plaintiffs’ counsel continues by stating the
intention to call investigator Jessica Sanchez as a witness to
the lineups and the sworn statements provided by the individual
defendants, this Court sees no reason to refer to the IPRA
investigation “to explain why investigator Sanchez is conducting
lineups and taking the statements from the officers.”

So long as

the testimony can go in (a matter on which the parties’ counsel
should confer), D. Motion 13 is granted.
Finally, D. Motion 14 asks “to dismiss defendant Officers
Vega, Carvajal, Lopez, Magallon, Williams and Merck.”

But

plaintiffs’ response correctly recharacterizes the motion as one
seeking summary judgment, because it is sought to be supported by
adducing various evidentiary materials.

Thus D. Motion 14,

unlike the other motions, is not one that challenges types or
items of evidence as inadmissible (the normal role of a motion in
limine)--see, e.g., Luce v. United States, 469 U.S. 38, 40 n.2
(1984) and Am. Int’l Adjustment Co. v. Galvin, 86 F.3d 1455, 1463
(7th Cir. 1996).
Even apart from the fact that this Court denied defendants’
summary judgment motion on March 23, 2011, so that the current
motion attempts to take a second bite at that apple, the proper

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way to raise the issues that defendants advance is to let the
matter play out at trial based on admissible evidence, with
defendants then free to present a Fed. R. Civ. P. 50(a) motion at
the conclusion of plaintiffs’ case in chief if such a motion is
justified.

For now, then, D. Motion 14 is denied.
Conclusion

For the reasons stated in this memorandum opinion and order:
1.

P. Motions 1, 2, 3, 6 and 7 (all part of Dkt. 99)

are granted.
2.

P. Motions 4 and 5 (also part of Dkt. 99) are

deferred.
3.

D. Motions 1 (Dkt. 84), 2 (Dkt. 85), 3 (Dkt. 86), 4

(Dkt. 87) and 13 (Dkt. 96) are granted.
4.

D. Motions 5 (Dkt. 88), 6 (Dkt. 89), 7 (Dkt. 90), 8

(Dkt. 91), 9 (Dkt. 92), 10 (Dkt. 93), 11 (Dkt. 94), 12
(Dkt. 95) and 14 (Dkt. 97) are denied.
As indicated earlier, some of those rulings may perhaps be
revisited at the time of trial if reraised by counsel in the
context of the evidentiary record as then developed.

In that

sense, those rulings may be viewed as conditional.

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

June 1, 2011

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