Rushing v. Debose, Star No. 12694 et al
Filing
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MEMORANDUM Opinion and Order. Signed by the Honorable Geraldine Soat Brown on 9/30/2011: Notice mailed by judge's staff (ntf, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
OSBY RUSHING
Plaintiff,
v.
CHICAGO POLICE OFFICERS M.
DEBOSE, STAR NO. 12694, A.
LOPEZ, STAR NO. 2768, R.
MAGALLON, STAR NO. 19170, M.
FLIS, STAR NO. 6252, R.
GONZALEZ, STAR NO. 8899, AND F.
IZA, STAR NO. 12649,
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Case No. 10 CV 3551
Magistrate Judge Geraldine Soat Brown
Defendants.
MEMORANDUM OPINION AND ORDER
Before the court are plaintiff’s motion in limine [dkt 36] and defendants’ motion in limine
[dkt 40]. The motions are ruled upon as follows.
BACKGROUND
Plaintiff Osby Rushing brings a claim under 42 U.S.C. § 1983 alleging violation of his civil
rights as well as an Illinois tort claim of malicious prosecution. (Compl.) [Dkt 1.] On June 11,
2009, Rushing was arrested by defendant Chicago Police Officers Debose, Lopez, Magallon, Flis,
Gonzalez, and Iza for alleged possession of a controlled substance (crack cocaine). (Proposed
Pretrial Order ¶ 3.) [Dkt 38.] Rushing contends there was no probable cause for the arrest, while
defendants contend that there was probable cause. (Id.)
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DISCUSSION
Generally, “[m]otions in limine are disfavored.” Mi-Jack Prods. v. Intl. Union of Operating
Engrs., Loc. 150, AFL-CIO, No. 94 C 6676, 1995 WL 680214 at *1 (N.D. Ill. Nov. 14, 1995).
“Evidence should not be excluded in limine unless it is clearly inadmissible on all potential
grounds.” Id. Rather, rulings on evidence “ordinarily should be deferred until trial,” when they may
be resolved in the proper context. Id. The movant bears the burden to show that the evidence that
it seeks to preclude is “clearly inadmissible.” Plair v. E.J. Branch & Sons, Inc., 864 F. Supp. 67, 69
(N.D. Ill. 1994). Denial of a motion in limine is not a ruling that the material subject to the motion
is necessarily admissible. Rather, it means only that “outside the context of trial, the court cannot
determine whether the evidence in question is admissible.” Id. at 69.
I.
Plaintiff’s Motion in Limine
Rushing seeks to bar the defense from introducing evidence that Jeffrey Davis, who both
parties have identified as a trial witness, was previously arrested and convicted of a crime. (Pls.’
Mot.) Mr. Davis was present when Rushing was arrested on June 11, 2009, and was arrested himself
at the same time. Rushing anticipates that defendants will try to introduce Mr. Davis’s 2006
conviction for an unspecified felony drug crime. (Id.) Plaintiff argues the following: (1) defendants
did not disclose any evidence of Mr. Davis’s conviction during discovery, and it should therefore
be barred; (2) evidence of the conviction is irrelevant and prejudicial under Federal Rules of
Evidence 401 and 403 and should also be barred pursuant to Rules 404(b) and 609; and (3) if
evidence of the conviction is admitted, it should be limited to the felony charged, the date, and the
disposition.
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Defendants respond as follows: (1) evidence of Mr. Davis’s conviction was a matter of public
record and did not need to be disclosed under Federal Rule of Civil Procedure 26; further, evidence
of a prior felony need not be disclosed during discovery if offered solely for the purpose of
impeachment under Rule 609; (2) the conviction is admissible because it is probative of the fact that
Mr. Davis was “a known drug dealer and that Plaintiff’s meeting with him was not a chance meeting,
but a planned drug buy” as well as “[d]efendants’ probable cause to stop Plaintiff’s vehicle carrying
a known and admitted drug dealer,” and that the probative value outweighs any “slight” prejudice;
and (3) defendants only possess information about the felony charged, the date of the conviction, and
the sentence, and thus do not dispute limiting the testimony to those facts. (Defs.’ Resp. at 2.) [Dkt
41.]
The admissibility of Mr. Davis’s prior felony conviction is subject to Federal Rules of
Evidence 404(b) and 609. Under Rule 404(b), evidence of a person’s prior “crimes, wrongs, or acts”
cannot be introduced to show the person’s “action in conformity therewith.” It may come in for
other purposes, such as “proof of motive, opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake. . . .” Fed. R. Evid. 404(b). Although Rule 404(b) is most commonly seen
as applied to criminal defendants, it is also applicable in civil cases. See Huddleston v. U.S., 485
U.S. 681, 685 (1988). Furthermore, Rule 404(b) applies to the prior acts of third parties because the
rule on its face applies to a “person” and not only a party to the case. Agushi v. Duerr, 196 F.3d 754,
760 (7th Cir. 1999).
Here, defendants want to introduce evidence that Mr. Davis, a third-party witness, was
convicted of a drug-related felony in order to show that Rushing’s meeting with him was a planned
drug buy and to show that defendant officers had probable cause to pull over an “admitted” drug
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dealer. (Defs.’ Resp. at 2.) What defendants are essentially arguing is that the 2006 conviction
should come in to show that it is likely Mr. Davis was dealing drugs in July 2009. In other words,
defendants want to establish that Mr. Davis was acting “in conformity therewith” his previous crime,
and that Rushing and defendants acted accordingly. Using a prior conviction for that purpose is
exactly what Rule 404(b) prohibits.
What Rushing and the officers knew or believed about whether Mr. Davis was selling drugs
on July 11, 2009 may well be probative to why Rushing and Davis met that day and whether the
officers had probable cause to arrest Rushing. However, that cannot be established by evidence that
Mr. Davis was convicted of a crime in 2006. Although defendants argue the conviction should come
in because it shows Rushing’s “absence of mistake” and “intent,” defendants do not explain how Mr.
Davis’s conviction alone would be at all probative of Rushing’s state of mind on that particular day
in 2009. Moreover, defendants have provided no details of Mr. Davis’s conviction to demonstrate
that it would be relevant to any allowable use under Rule 404(b). Therefore, evidence of Mr. Davis’s
2006 conviction cannot be introduced to show that he was selling drugs on July 11, 2009.
However, this does not end the analysis. Under Rule 609, evidence of a prior conviction can
also come in “[f]or the purpose of attacking the character for truthfulness of a witness.” Under the
rule, felony convictions that occurred within the previous ten years may be used for impeachment
so long as the probative value of admitting the evidence outweighs any prejudicial effect. Fed. R.
Evid. 609(a)(1).1
The evidence of Mr. Davis’s felony drug conviction could potentially fall under Rule
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Defendants do not argue that Rule 609(a)(2), which permits any conviction for a crime
that required “proof or admission of an act of dishonesty or false statement by the witness” to be
admitted, applies to Mr. Davis’s conviction.
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609(a)(1), since it occurred within the past 10 years. However, before evidence of a prior conviction
can come in to impeach a witness, the court must weigh the value of the evidence against its
prejudicial effect. In doing so, a court considers: (1) the impeachment value of the prior crime; (2)
the point in time of the conviction and the witness’s subsequent history; (3) the similarity between
the past crime and the charged crime; (4) the importance of the testimony; and (5) the centrality of
the credibility issue. U.S. v. Smith, 131 F.3d 685, 687 (7th Cir. 1997); Maldonado v. Stinar, No. 08
C 1954, 2010 WL 3075680 at *7 (N.D. Ill. Aug. 5, 2010) (applying factors to impeachment of the
plaintiff in a Section 1983 case).
That weighing is difficult at this point without knowing what Mr. Davis’s testimony will be.
It is possible that evidence Mr. Davis’s previous conviction of a drug crime could become relevant
impeachment evidence under certain circumstances; for example, if Mr. Davis testifies that he has
never possessed illegal drugs. For that reason, Rushing’s motion in limine is denied without
prejudice insofar as evidence of the conviction may come in solely for impeachment, if it becomes
appropriate during the course of the trial. If that does occur, Rushing may request a limiting
instruction to the jury about the purpose for which they may consider the evidence.
Because the evidence of Mr. Davis’s conviction will be allowed for solely for impeachment
purposes, if at all, the court need not address whether it was appropriately disclosed during
discovery. Federal Rule of Civil Procedure 26(a)(3) provides that evidence introduced solely to
impeach a witness need not be disclosed during discovery.
In sum, Rushing’s motion in limine to bar evidence of Mr. Davis’s prior conviction is granted
in part and denied in part without prejudice, as set forth above. As agreed by defendants, any
evidence of Mr. Davis’s conviction will be limited to the felony charged, the date and the
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disposition.
II.
Defendants’ Motion in Limine
Defendants seek to bar Rushing from questioning any of defendant officers about their
“knowledge, opinion, and understanding of what probable cause or reasonable suspicion means” on
the basis that it is irrelevant. (Defs.’ Mot. at 1.) Defendants argue that a determination of whether
probable cause existed to arrest Rushing is “measured under a reasonableness standard, not the
subjective opinion of a police officer.” (Id.)
Rushing agrees that probable cause is an objective standard, but argues he should be able to
question the officers about their understanding of probable cause for the following reasons: (1) if any
of defendants testify upon direct examination that they took certain actions because they believed
they had probable cause to do so, Rushing should be permitted to cross-examine them on “the
reasonableness of any explanation for plaintiff’s arrest;” and (2) Rushing seeks punitive damages,
which requires evidence that defendants’ actions were malicious or in reckless disregard of
Rushing’s rights. Rushing argues that evidence that defendants knew they did not have probable
cause to arrest him or had not bothered to keep themselves informed of what constitutes probable
cause could be relevant to the issue of punitive damages. (Pl.’s Resp. at 1-2.) [Dkt 42.]
Rather than ruling on specific questions Rushing’s counsel may or may not ask, which is
difficult outside the context of the evidence, this ruling will set the general principles the court will
apply at the trial. In a Section 1983 action alleging false arrest, liability will turn on whether the
officers had probable cause to arrest the plaintiff. Jackson v. Parker, 627 F.3d 634, 638 (7th Cir.
2010). Probable cause is established when the officer reasonably concluded, from the facts known
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to him at the time of the arrest, that a suspect had committed or was committing a criminal offense.
Devenpeck v. Alford, 543 U.S. 146, 152 (2004). However, the determination of whether a sufficient
legal basis existed to make an arrest is an objective one, and it does not turn on the subjective belief
of the officer that he had probable cause. Ochana v. Flores, 347 F.3d 266, 272 (7th Cir. 2003).
“[E]venhanded law enforcement is best achieved by the application of objective standards of
conduct, rather than standards that depend upon the subjective state of mind of the officer.”
Devenpeck, 543 U.S. at 153 (quoting Horton v. California, 496 U.S. 128, 138 (1990)). It is “wellestablished that an arresting officer’s personal knowledge of facts sufficient to constitute probable
cause is significant, but an arresting officer's subjective beliefs are not relevant.” Ochana, 347 F.3d
at 272 (citing Whren v. U. S., 517 U.S. 806, 813 (1996)). In Ochana, the Seventh Circuit held that
it was error (although harmless in that case) to allow evidence of the defendant police officers’
subjective belief that they had probable cause on the issue of liability. Id.
Whether defendants had probable cause to arrest Rushing is a determination that the jury will
have to make based on what the evidence reveals about the information the officers possessed at the
time of the arrest. See, e.g., 7th Cir. Pattern Jury Inst. § 7.05 (2009) (setting forth the elements of
a false arrest claim, one of which is that the defendant(s) did not have probable cause to arrest the
plaintiff). The court will instruct the jury about the legal definition of probable cause. See, e.g., id.
§ 7.06 (jury instruction on the definition of probable cause). The jury will then be charged with
applying the evidence to that legal standard.
Testimony from defendant officers about what they understand probable cause or reasonable
suspicion to mean might be probative of their subjective belief but would not be probative of the
question of whether defendants’ arrest of Rushing was objectively reasonable, i.e., whether they
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actually had probable cause in this case. Furthermore, it would be likely to confuse or distract the
jury from the objective standard they will be instructed to apply. Eliciting such testimony from
defendants for purposes of establishing liability would be inappropriate.
Rushing can cross-examine defendants about what they knew at the time they arrested him
and why they took the actions they did. That includes examination about the basis of defendants’
knowledge and conclusions. And Rushing is, of course, free to argue during closing arguments that
the evidence of what defendants knew was insufficient to establish probable cause to arrest him.
Rushing also argues that evidence of the defendants’ subjective beliefs and understanding
is relevant to punitive damages. Punitive damages are available if liability has been established, and
the defendant’s state of mind is relevant to that issue. For example, the Seventh Circuit Pattern Jury
Instructions provide the following regarding punitive damages when Fourth Amendment rights are
implicated:
You may assess punitive damages only if you find that [the defendant’s] conduct was
malicious or in reckless disregard of [the] [p]laintiff’s rights. Conduct is malicious
if it is accompanied by ill will or spite, or is done for the purpose of injuring [the]
[p]laintiff. Conduct is in reckless disregard of [the] [p]laintiff’s rights if, under the
circumstances, it reflects complete indifference to [the] [p]laintiff’s safety or rights.
7th Cir. Pattern Jury Inst. § 7.24 (2009).
The question is whether to allow evidence of the officers’ subjective intent and state of mind,
which is relevant to punitive damages, to be introduced in the plaintiff’s case in chief on liability
where it is not relevant. The risk is that the jury will be confused and distracted, and that defendants
will be prejudiced. Another district court confronting the same issue in a Section 1983 case found
it appropriate to bifurcate the trial into a liability phase and a damages phase. Huddleston v.
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Pohlman, No. 06-3009, 2007 WL 647335 (C.D. Ill. Feb. 27, 2007). The court recognized that the
“[d]efendant’s state of mind, while relevant to the question of punitive damages, is irrelevant to the
question of liability.” Id. at *1. Therefore, the court ordered that no evidence of the defendant’s
subjective intent could be introduced at the liability phase, but if the plaintiff proved liability,
evidence of subjective intent could then come in as to damages. Id. at *1, 4.
After considering the issue and reviewing it with counsel for the parties, the court has
determined to proceed as follows. The case will be presented as to liability and compensatory
damages, and if a verdict is returned for Rushing, the parties will go forward immediately thereafter
to present any additional evidence and argument on punitive damages. Rushing may recall the
defendants as witnesses for that evidence.
In sum, defendants’ motion in limine to bar questioning of defendant officers about their
“knowledge, opinion, and understanding of what probable cause or reasonable suspicion means” is
granted to the extent stated herein. Defendants must raise a timely objection at trial to any particular
question or evidence that they believe is barred by this ruling.
CONCLUSION
For the foregoing reasons, plaintiff’s motion in limine [dkt 36] is granted in part and denied
in part without prejudice as set forth above, and defendants’ motion in limine [dkt 40] is granted to
the extent stated herein. At trial, if any party believes evidence is being introduced in violation of
these rulings, it must make an objection at that time.
IT IS SO ORDERED.
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________________________________
GERALDINE SOAT BROWN
United States Magistrate Judge
DATED: September 30, 2011
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