Taylor v. City Of Chicago et al
Filing
76
MEMORANDUM Opinion and Order Signed by the Honorable Milton I. Shadur on 8/24/2012:Mailed notice(srn, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KENYON TAYLOR,
Plaintiff,
v.
CITY OF CHICAGO, et al.,
Defendants.
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No.
09 C 5092
MEMORANDUM OPINION AND ORDER
Although this Court addressed the post-Final-Pretrial-Order
(“FPTO”) motions in limine filed by defendants promptly after
they were brought to issue, a regrettable breakdown in its system
of follow-ups on motions pending in cases on its calendar has
resulted in the motions in limine by plaintiff Kenyon Taylor
(“Taylor”) having lain fallow for some months.
Fortunately that
has not prejudiced the parties--this action’s place in the lineup
of cases scheduled for trial has caused it to be scheduled for
trial next February.
This memorandum opinion and order corrects
the oversight.
To begin, defendants do not object to Taylor Motions 1, 7
and 8.
Each is granted.
Taylor Motion 2 has received special treatment from
defendants--a separate response.
Although this Court is well
aware of the problems that have rarely arisen in this District
Court as a result of the nondisclosure by an occasional juror
whose voir dire responses have concealed some criminal
background, it has never encountered a problem in that respect in
its more than three decades on the bench.
In law as in life we
seldom shape our rules or general practices to respond to such
rarely encountered aberrations.
Importantly, this Court’s method of jury selection--one that
does not follow the struck jury model, instead conducting voir
dire only of prospective jurors as they are seated in the jury
box (both the original impaneled set and other persons who are
called individually to replace those who are excused for cause or
through peremptory challenges)--would generate a good deal of
waste time and effort in obtaining the information piecemeal and
providing it to both sides (as is needed to preserve the
essential level playing field for the parties).
If a system were to be devised to screen all prospective
jurors at the source--before jurors are sent to courtrooms for
possible service--that would both avoid such delays in the
courtroom and provide the litigants with that level playing
field.
This Court might then view the situation differently, but
as matters now stand Taylor Motion 2 is granted.
Taylor Motion 3 seeks to bar defendants’ use of his mugshot
photo or other photos taken by Chicago Police Department evidence
technicians.
Defendants respond that during the deposition of
Joseph Welborn he identified Taylor from a mugshot--but there
would seem to be no reason to challenge his identification of
2
Taylor (whom he testified he had seen around the neighborhood).
Hence the use of the mugshot--which of course poses problems
under Fed. R. Evid. (“Rule”) 403--would be wholly unnecessary.
Taylor Motion 3 is granted.
Taylor Motion 4 would bar testimony that he was arrested in
a “high crime area.”
Use of that pejorative characterization as
a basis for police actions is a sort of “guilt by
geography”--instead the charged officers’ conduct vis-a-vis
Taylor ought to be judged by their own contacts with him (or
perhaps their own knowledge of him).
As chance would have it, just last month our Court of
Appeals had occasion to deal with a case in which this Court’s
colleague Honorable Joan Lefkow had granted a like motion (Willis
v. Lepine, No. 11-2224, 2012 WL 2989253, at *9-*11 (7th Cir.
July 23)).
Notably the Court of Appeals raised no issue or
problem as to Judge Lefkow’s ruling as such, focusing instead on
instances where the plaintiffs in that case charged defense
counsel with having violated the ruling.
This Court similarly
grants Taylor Motion 4, so that the case may proceed without any
such characterization of the area where events took place.
Taylor Motion 5 first seeks to bar any reference to Chicago
Police Department arrests that did not result in convictions.
Although defense counsel’s response memorandum devotes seven
pages to Motion 5, not a word is said about arrests (quite
3
understandably, in light of the uniform caselaw authority on that
subject).
That component of Motion 5 is granted.
As for Taylor’s convictions, however, more discussion is
needed.
When Taylor testifies, Rule 609(a)(1) expressly makes
his criminal record fair game for impeachment purposes (unless
overridden by Rule 403).
That has long been the rule, even
though logic would seem to limit such impeachment to the category
described in Rule 609(a)(2):
“if the court can readily determine
that establishing the elements of the crime required proving--or
the witness’s admitting--a dishonest act or false statement.”
In terms of just what can be brought before the jury, the
caselaw does not permit what Judge Posner described in Campbell
v. Greer, 831 F.2d 700, 707 (7th Cir. 1987) as “harp[ing] on the
witness’s crime, parad[ing] it lovingly before the jury in all
its gruesome details, and thereby shift[ing] the focus of
attention from the events at issue in the present case to the
witness’s conviction in a previous case.”
But in this instance
defense counsel are right in arguing at their Mem. 5-6 that the
underlying circumstances of Taylor’s conviction stemming from a
May 16, 2007 arrest qualify under Rule 404(b).
That being the case, the just-described conviction can do
double duty, serving both substantively and as a source of
impeachment.
This Court will not however grant defense counsel’s
effort to introduce Taylor’s other felony drug conviction dated
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July 31, 2006, which under the circumstances would not only be
duplicative but would also equate sufficiently to forbidden
propensity evidence to bring Rule 403 into play.1
Next Motion 5 also challenges the admissibility of prior
felony convictions of witnesses, as to which this Court
contemplates applying Rule 609 unless overridden by Rule 403--a
determination that will have to be made on a case-by-case
approach at trial.
Lastly, Taylor seeks to bar reference to the
alleged use of alias names--a matter that may or may not be
probative in determining the credibility of a witness.
That too
will have to be resolved on an individualized basis at trial.
Accordingly, Taylor Motion 5 would have to be listed as
granted in part and denied in part.
Any necessary
particularization in the respects indicated above will await the
time of trial.
Next, Taylor Motion 6 seeks to bar any reference to gang
membership, an issue as to which defense counsel are well aware
of this Court’s position.
Those same lawyers served as co-
counsel who represented the defendants in Ramirez v. City of
Chicago, 05 C 317, in which this Court’s November 17, 2009
memorandum opinion and order (2009 WL 3852378, at *1-2) ruled out
1
When criminal convictions are not in the crimen falsi
category, the introduction of two such crimes for impeachment
purposes, as though defendant’s lack of credibility is somehow
doubled, is another reason to call Rule 403 into play.
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that type of evidence in reliance on such cases as United States
v. Irvin, 87 F.3d 860, 865 (7th Cir. 1996)--an opinion that
decried the use of such evidence as seeking “guilt by
association.”2
Accordingly Taylor Motion 6 is granted.
That jumps the discussion to Taylor Motion 9, which asks to
bar all references to, or introduction of, any evidence of
Taylor’s prior delivery of controlled substances.
In that
respect this opinion’s ruling on Taylor Motion 5 has already held
“that the underlying circumstances of Taylor’s conviction
stemming from a May 16, 2007 arrest qualify under Rule
404(b)”--see Treece v. Hochstetler, 213 F.3d 360, 363 (7th Cir.
2000) and cases cited there, all permitting the use of such
evidence to demonstrate a defendant’s modus operandi.
Hence
Taylor Motion 9 is denied.
Lastly, Taylor Motion 10 seeks to bar the defendant officers
from asserting an inability to pay as a defense to the punitive
damages sought against them by Taylor.
parties cross swords on a factual issue:
In that respect the
Taylor’s Mem. 17 says
that “Defendant Officers have refused to produce income or asset
2
Attempted “guilt by geography” and “guilt by
association”! Why do counsel overreach by seeking to tar
defendants with such vicarious evidence? In the Ramirez case,
the lawyers who acted there as co-defense-counsel with the
present defense counsel in this case have just represented their
clients there successfully, obtaining a favorable jury verdict
without the use of such tactics that invite the invocation of
Rule 403.
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information,” while defendants’ Mem. 14 retorts:
Contrary to the impression left by Plaintiff’s motion,
defendants never refused to provide their financial
information to Plaintiff. He never so much as
propounded an interrogatory on the subject, and opted
not to take any of the officers’ depositions.
But from an analytical point of view, a claimed inability to
pay punitive damages would seem to be an archetypical Fed. R.
Civ. P. 8(c) affirmative defense--an assertion that, much like
comparative negligence, says that a plaintiff cannot collect a
full measure of damages for a reason other than a failure of
proof on plaintiff’s part.3
Indeed, Kemazy v. Peters, 79 F.3d
33, 36 (7th Cir. 1996) has held in a Section 1983 action against
a police officer--following the majority of other circuits--that
it is the defendant rather than the plaintiff that has the burden
in pleading as well as proof to show inability to bear the burden
of punitive damages:
Individual defendants, as in the present case, are
reluctant to disclose their net worth in any
circumstances, so that compelling plaintiffs to seek
discovery of that information would invite a
particularly intrusive and resented form of pretrial
discovery and disable the defendant from objecting.
Since, moreover, information about net worth is in the
possession of the person whose net wealth is in issue,
the normal principles of pleading would put the burden
3
In that respect, cf. Carter v. United States, 333 F.3d
791, 796 (7th Cir. 2003), where our Court of Appeals pointed to
the majority rule in other circuits that hold a limitation on
damages is an affirmative defense that must be pleaded in the
answer (which was not done here as to the punitive damages
issue). There the Court of Appeals also analogized the defense
to comparative negligence, as this Court has here.
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of production on the defendant--which, as we have been
at pains to stress, is just where defendants as a whole
would want it.
With defendants not having advanced such an affirmative
defense, they may well be held to have waived--or more precisely
forfeited--the issue of ability to pay.4
That might require
further inquiry (see the discussion in Carter), but for now
Taylor Motion 10 is granted.
________________________________________
Milton I. Shadur
Senior United States District Judge
Date:
August 24, 2012
4
Incidentally, any introduction of that subject into the
jury instructions would necessitate a clarifying instruction on
compensatory damages that apprises the jury that the City of
Chicago bears responsibility for payment of such damages. That
probably should be done in any event in any case where punitive
damages are sought and where the jury needs to be told that
punitive damages are not available against the municipality. But
what has been said in this footnote is a separate subject to be
addressed before or during the jury instruction conference.
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