Tolliver v. Doe

Filing 45

MEMORANDUM Opinion and Order Signed by the Honorable Milton I. Shadur on 10/31/2011:Mailed notice(srn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JEROME TOLLIVER,
Plaintiff,
v.
P.O. GONZALEZ #18216, et al.,
Defendants.

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No.

10 C 1879

MEMORANDUM OPINION AND ORDER
Following the August 23, 2011 issuance of the parties’
jointly submitted Final Pretrial Order (“FPTO”), each side has
complied with this Court’s contemporaneously-issued minute order
by submitting motions in limine.

Those motions in turn have

generated responses, so that they are ripe for ruling.

This

memorandum opinion and order will address the motions in turn.
Plaintiff’s Motions in Limine
Counsel for plaintiff Jerome Tolliver (“Tolliver”) have, in
their Motion No. 1, sought to bar a substantial amount of
potential evidence that is not directly related to the incident
in which Tolliver claims his constitutional rights were violated.
None of the matters to which Tolliver objects were known to the
defendant officers at the time of their alleged use of excessive
force in the course of their arresting him.

That familiar type

of motion typically brings into play the interaction between Fed.
R. Civ. P. (“Rule”) 404(b) and Rule 403, and this case is no
exception.

Among the objected-to items, the exclusion of any potential
evidence as to Tolliver’s prior arrests not leading to
convictions and as to any history of domestic disputes (the
latter exclusion being unopposed by defendants) poses no
problems--any such matters are barred.

As for Tolliver’s earlier

or later use of controlled substances, with no evidence
indicating that he was impaired at the time of his arrest (so as
to raise a question as to his ability to recall the incident),
any such evidence is barred as well.
That leaves only Tolliver’s 2006 convictions for aggravated
battery and his 2008 conviction for attempted robbery.

Though

such prior convictions are potentially admissible under Rule 609,
neither implicates Tolliver’s credibility as such.

With none of

them having been known to the arresting officers at the time of
the incident at issue, they could not have influenced the
officers’ conduct.

On balance, the introduction of such

unrelated convictions, none of which impugns Tolliver’s ability
to speak truthfully about the incident on which he sues, would
generate unfair prejudice substantially outweighing their
probative value.

That being so, Rule 403 bars admissibility of

that evidence, and Tolliver’s Motion No. 1 is granted in its
entirety.
Tolliver’s Motion No. 2 seeks to bar evidence of defendant
Officer Gonzalez’s National Guard service from about 1997 to

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2004.

Defendants’ response is that it should be admitted “for

the purpose of providing background information to the jury.”
“Background information” of what?

Any such evidence has no

relevance to the matters at issue, and Motion No. 2 is granted as
well.
Tolliver’s Motion No. 3 asks that the defendant officers be
prevented from wearing their uniforms and medals during the
trial, on the premise that doing so would constitute inadmissible
character evidence.

That may be so as to medals, but the

defendant officers have disclaimed any intention to wear those.1
But this Court sees no basis for precluding the wearing of
uniforms (indeed, this Court is keenly aware that some members of
the public view police officers adversely as a result of some
highly publicized incidents of misconduct, and it always takes
special care to make inquiry on both sides of the potential bias
coin during voir dire in jury selection).

That aspect of

Motion No. 3 is denied.
Finally, Tolliver’s Motion No. 4 asks that the trial omit
any reference to or mention of the details surrounding Tolliver’s
arrest--most particularly any details of the altercation between
Tolliver and his spouse Stacey that triggered the arrest.

1

Defendants’ response does indicate an intention to wear
Chicago Police Department (“Department”) color bars, a term with
which this Court probably should be but is not familiar. Pending
explanation of that term, no ruling is made here.
3

Defendants state in return that the “officers came to the scene
of the incident in response to a dispatch regarding a domestic
dispute between Plaintiff and his wife,” assertedly justifying
testimony of the type objected to by Tolliver (most specifically,
referring to marks that the officers observed on Mrs. Tolliver
when they arrived).
What would not of course be appropriate for jury
consideration would be any notion that a physical altercation
between the Tollivers before the officers arrived would somehow
justify them in the imposition of excessive force on Tolliver (on
some notion that he deserved what he got).

If Tolliver’s counsel

is correct in asserting that “[t]here is no dispute between the
parties that Mr. Tolliver’s arrest occurred without incident and
that he was cooperative and was not resisting” (Motion at 9), the
exclusion of the potentially prejudicial evidence is appropriate
as a matter of Rule 403 balancing (none of the cases advanced in
defendants’ Response at 7-8 calls for a contrary conclusion).

If

then the proof at trial bears out the statement quoted above from
Tolliver’s submission, it is granted.
Defendants’ Motions in Limine
After the entry of the FPTO, the parties’ counsel conferred
about a good many of defendants’ motions in limine and reached
agreements that obviated the need for further briefing.

Here

then is a list of those motions, to the granting of which the

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parties have stipulated:
1.

Motion No. 1, barring any evidence of Department’s

general orders, rules and regulations;
2.

Motion No. 3, barring any mention that defense

counsel work on behalf of City;
3.

Motion No. 4, barring any evidence regarding a

“code of silence” or arguing that police generally protect
or cover up for other officers’ misconduct;
4.

Motion No. 5, barring any testimony, evidence,

argument or comments about other events concerning
allegations of police misconduct;
5.

Motion No. 6, barring all nonparty witnesses from

the courtroom during opening statements and trial testimony;
6.

Motion No. 7, barring any reference to “sending a

message to City”;
7.

Motion No. 8, barring any evidence, testimony or

argument as to any complaints listed on defendant officers’
Complaint Register (“CR”) histories, the CRs themselves and
the underlying CR file in this action and in any prior
lawsuits;
8.

Motion No. 9, barring any of Tolliver’s counsel

from making an improper opening statement;
9.

Motion No. 10, barring any Tolliver counsel from

making an improper opening statement that defendant officers

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conducted an improper investigation;
10.

Motion No. 11, barring any evidence or argument as

to defendants’ alleged failure to call witnesses;
11.

Motion No. 12, barring any mention or arguments

during jury selection that would condition the jury to award
a specific amount of money damages; and
12.

Motion No. 13, barring any evidence, testimony or

arguments as to Tolliver’s having made a citizen’s complaint
to Department or the Independent Police Review Authority.
That leaves as a contested matter only defendants’ Motion
No. 2, which seeks (1) to bar any mention of indemnity by the
City of Chicago (“City”) and (2) to strike City’s name from the
case caption.

Both facets of that motion stem from an

understandable concern that a jury ruling for Tolliver might be
inclined to return a verdict awarding excessive damages because
of the notion that City’s deep pocket is available to satisfy the
award.2
All of us are familiar with the practice of withholding from
juries information about defendants’ insurance coverage for just
that reason.

It must be recognized, though, that such a rule is

unrealistic, for example, at least in lawsuits involving motor

2

In a sense, current events render any such concern
unrealistic as to any reasonably well informed person. City’s
economic woes are widely known, and it is entirely possible that
jurors could be less inclined to tap into City’s version of
Mother Hubbard’s Cupboard.
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vehicle accidents because of the pretty much universal knowledge
of legally compelled insurance coverage.

There clearly is no

such public awareness of a municipality’s indemnification
obligation.
But there is a corresponding danger that a jury, uninformed
about any right of indemnification and aware of the comparatively
modest income of police officers, could be inclined to lowball a
damage award because of that awareness.

In this Court’s view,

arrived at with a good deal of thought over a substantial period
of years, the solution that is most fair to both sides is to
apprise the jury of City’s obligation to make good on
compensatory damage awards against its officers, coupled with a
strongly worded cautionary instruction that no consideration of
that fact is permitted to enter into the jury’s determination of
reasonable damages based on the court’s customary damages
instruction.3

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

October 31, 2011

3

If a plaintiff seeks punitive damages, the jury is always
instructed that no such award is permissible against a
municipality (City of Newport v. Fact Concerts, Inc., 453 U.S.
247 (1981)). In that situation, it is even more important that
the jury be apprised of the different rule as to compensatory
damages.
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