Owens v. P.O. Ellison et al
MEMORANDUM OPINION AND ORDER Signed by the Honorable Robert M. Dow, Jr. on 3/28/2017. Mailed notice(cdh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
P.O. Ellison, et al.,
Case No. 13-cv-7568
Judge Robert M. Dow, Jr.
MEMORANDUM AND OPINION ORDER
Plaintiff D-Juan Owens brings this civil rights action under 42 U.S.C. § 1983 alleging
that Defendant Steven Kelley1 used excessive force against him in effectuating an arrest and that
Defendant Joseph Ellison observed this alleged use of force and failed to intervene despite the
opportunity to do so. Plaintiff also brings a Monell claim against the City of Harvey, which has
been bifurcated. [76.] Before the Court are Plaintiff’s motions in limine  and Defendants’
motions in limine , , , , , , and . For the reasons set forth below,
Plaintiff’s motions in limine  are granted in part and denied in part: the Court grants
Plaintiff’s motions No. 1, 2, 4, 7, 8, and 11; the Court grants in part and denies in part Plaintiff’s
motions No. 3, 5, and 6; and the Court denies Plaintiff’s motions No. 9 and 10.
Defendants’ motions in limine also are granted in part and denied in part: the Court grants
Defendants’ motions No. 3 , 4 , and 7 ; the Court grants in part and denies in part
Defendants’ motions No. 1 , 2 , and 5 ; and the Court denies Defendants’ motion No.
6 . This case remains set for a jury trial to commence on April 3, 2017. The Court directs
The Court notes that some filings on the docket use the spelling “Kelly” and others use the spelling
the parties to submit revised exhibit lists that take into account the Court’s rulings above no later
than 12:00 p.m. (noon) on March 31, 2017. As discussed at the final pretrial conference, to the
extent that objections remain to any proposed exhibits that the parties wish to use as substantive
evidence,2 the parties must provide a chart setting out the number of the exhibit, a more detailed
summary of the objection, and the response to the objection no later than 12:00 p.m. (noon) on
March 31, 2017.
Plaintiff alleges that on or about October 23, 2011, he was in the vicinity of 147th Street
and Ashland Avenue in Harvey, Illinois after running from the police. [29 (First Amended
Complaint), at ¶ 5.] He contends that he hurt his ankle as he was going over a fence, and then
surrendered and was no threat to the Defendants Ellison and Kelley, who are Harvey police
officers. [Id. at ¶¶ 6–7.] According to Plaintiff, without any reasonable cause, Defendant Kelley
struck him on the back of the head. Plaintiff alleges that he was then on his knees, when he was
struck on the front of his head. He contends that he covered his face and head with his hands and
arms as one or more of the Defendants continued to strike him. Plaintiff alleges that one or more
of the Defendants continued to strike him with an object, injuring his arms and wrist, and that
Defendant Kelley continued to kick and stomp on him. [Id. at ¶¶ 8–12.] Plaintiff asserts that
Defendants’ use of force was unprovoked, excessive, and unreasonable. [Id. at ¶¶ 13–14.]
Plaintiff alleges that Defendant Ellison stood by and allowed the continued excessive use of
force and attacks to occur even though he could have intervened. [Id. at ¶ 15.] According to
Plaintiff, as a result of Defendants’ conduct, he was severely injured and suffered permanent
The parties are not to include on this chart of disputed exhibits any exhibits related solely to Plaintiff’s
Monell claim or exhibits the parties intend to use only for impeachment purposes or refreshing
disfigurement. [Id. at ¶¶ 16, 20.] Defendants deny striking Plaintiff. [31 (Answer to Amended
On October 13, 2013, Plaintiff filed the instant lawsuit, bringing an excessive force claim
against Defendants Kelley and Ellison, a Monell claim against the City of Harvey (“the City”),
see Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1976), and a claim for indemnification.
On March 7, 2017, the Court granted the City’s motion  to bifurcate Plaintiff’s Monell claim
against the City from the claims against the individual Defendants. [76.] A jury trial is set to
begin on April 3, 2017.
A motion in limine is a motion made “at the outset” or “preliminarily.” BLACK’S LAW
DICTIONARY 803 (10th ed. 2014). Motions in limine may be used to eliminate evidence “that
clearly ought not be presented to the jury because [it] clearly would be inadmissible for any
purpose.” Jonasson v. Lutheran Child & Family Svcs., 115 F.3d 436, 440 (7th Cir. 1997). The
party seeking to exclude evidence “has the burden of establishing the evidence is not admissible
for any purpose.” Mason v. City of Chicago, 631 F. Supp. 2d 1052, 1056 (N.D. Ill. 2009). The
power to rule on motions in limine inheres in the Court’s role in managing trials. Luce v. United
States, 469 U.S. 38, 41 n.4 (1984). Because motions in limine are filed before the Court has seen
or heard the evidence or observed the trial unfold, rulings in limine may be subject to alteration
or reconsideration during the course of trial. United States v. Connelly, 874 F.2d 412, 416 (7th
Plaintiff’s Motions in Limine 
Plaintiff’s Motion No. 1: Jury as Taxpayers
Plaintiff moves to bar any arguments that appeal to jurors’ pecuniary interests as
taxpayers. Defendants assert that they do not intend to make any such arguments. Thus, this
motion is granted.
Plaintiff’s Motion No. 2: Bar Non-Party Witnesses from Courtroom
Plaintiff moves to exclude non-party witnesses from being present in the courtroom prior
to their testimony. Defendants do not object to this motion and assert that they expect the same
from Plaintiff. Thus, this motion is granted, and non-party witnesses from either side are not to
be present in the courtroom prior to their testimony.
Plaintiff’s Motion No. 3: Plaintiff’s Prior Bad Acts
Plaintiff moves to bar reference to (1) his prior arrests that did not result in conviction,
(2) his criminal conviction, (3) his illegal drug use, (4) his alleged prior gang affiliation.
Prior Arrests that Did Not Result in Conviction
Defendants assert that they do not intend on introducing evidence of Plaintiff’s prior
arrests that did not result in convictions, unless Plaintiff opens the door. To this end, Plaintiff’s
motion is granted in part: Defendants are barred from introducing evidence of Plaintiff’s prior
arrests that did not result in conviction, unless Plaintiff opens the door by testifying that he does
not have a prior criminal history.
Prior Criminal Convictions
Plaintiff seeks to bar reference to a 2011 conviction for driving on a suspended/revoked
license, a 2010 misdemeanor battery conviction, an October 2009 conviction for possession of a
controlled substance, a February 2009 conviction for possession of cannabis, and an October
2007 conviction for possession of cannabis.
Plaintiff argues that his prior convictions are
“entirely irrelevant to the underlying dispute herein and in no way impugn his credibility as a
witness.” [68, at 6.] Defendants assert that the only prior conviction they seek to admit is
Plaintiff’s February 2009 conviction for possession of between 30–500 grams of cannabis
(08C66108101).3 Defendants argue that it is permissible to admit evidence of prior convictions
to impeach Plaintiff’s credibility.
Federal Rule of Evidence 609 provides that for a crime punishable by death or by
imprisonment for more than one year, the evidence of the criminal conviction must be admitted,
subject to Rule 403, in a civil case. See Fed. R. Evid. 609(a)(1)(A). Rule 403, in turn, provides
that the Court may exclude relevant evidence if its probative value is substantially outweighed by
a danger of unfair prejudice. Fed. R. Evid. 403.
The Seventh Circuit has elucidated a five-part test in criminal cases to guide the district
court in the exercise of its discretion in determining whether the probative value of a conviction
outweighs its prejudicial effect: (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 witness’s testimony; and (5) the centrality
of the credibility issue. See United States v. Montgomery, 390 F.3d 1013, 1015 (7th Cir. 2004).
“While not all of those factors will apply in civil cases, the same general concerns may
illuminate the court’s analysis.” Buchanan v. McCann, 2012 WL 1987917, at *1 (N.D. Ill. June
4, 2012) (citing Anderson v. City of Chicago, 2010 WL 4928875, at *2–3 (N.D. Ill. Nov. 30,
2010)). The Seventh Circuit has also cautioned district courts to “be careful to ensure that a civil
Defendants also seek to admit the conviction stemming from the incident giving rise to the current
lawsuit, which Plaintiff concedes is admissible.
rights plaintiff’s criminal past is not used to unfairly prejudice him or her.” Gora v. Costa, 971
F.2d 1325, 1331 (7th Cir. 1992).
On balance, the five factors set forth above weigh in favor of admitting the fact, but not
the nature, of Plaintiff’s February 2009 conviction for possession of cannabis. As to the first
factor, the fact that Plaintiff is a felon has some, but not strong, impeachment value given the
nature of Plaintiff’s February 2009 crime. In general, “[r]ule 609 rests ‘on the common-sense
proposition that a person who has flouted society’s most fundamental norms, as embodied in its
felony statutes, is less likely than other members of society to be deterred from lying under oath
in a trial by the solemnity of the oath, the (minuscule) danger of prosecution for perjury, or
internalized ethical norms against lying.’” Cartwright v. City of Chicago, 2013 WL 3984434, at
*1 (N.D. Ill. Aug. 2, 2013) (quoting Campbell v. Greer, 831 F.2d 700, 707 (7th Cir. 1987)). This
general principle applies here even though Defendants have not cited cases demonstrating
specifically that convictions for possession of a controlled substance implicate a party’s
truthfulness. On the other hand, the conviction poses some risk of prejudice to Plaintiff due to
the nature of the crime.
Turning to the second factor, the February 2009 conviction is eight years old. Under
Rule 609(b), convictions more than ten years old are admissible only if the Court determines
“that the probative value of the conviction * * * substantially outweighs its prejudicial effect.”
Fed. R. Evid 609(b); United States v. Redditt, 381 F.3d 597, 601 (7th Cir. 2004). Here, the
February 2009 conviction is within the last ten years and therefore does not fall into the Rule
609(b) limitation. The third factor is not relevant in civil cases.
As to the fourth factor,
Plaintiff’s testimony will be critical in this case because Plaintiff is a key witness to his own
alleged beating and the jury will be required to determine whether it finds Plaintiff’s version of
the facts more plausible than Defendants’ version. For the same reason, the fifth factor—the
centrality of the credibility issue—weighs in favor of admitting Plaintiff’s February 2009
conviction. See United States v. Grant, 396 F.3d 906, 909–910 (7th Cir. 2005) (concluding that
given defendant’s theory that he possessed a pipe, not a gun, his credibility was crucial and
therefore, impeachment with eight year old conviction for drug crime was proper); United States
v. Montgomery, 390 F.3d 1013, 1016 (7th Cir. 2004) (holding that the district court correctly
recognized that defendant’s credibility was central to the case and impeachment with prior drug
conviction was proper).
Considering these factors together, the Court denies in part Plaintiff’s motion in limine
and concludes that evidence of Plaintiff’s February 2009 felony conviction is admissible under
Rule 609(a)(1)(A) but should be limited and sanitized to reduce the risk of prejudice to Plaintiff.
See Schmude v. Tricam Indus., Inc., 556 F.3d 624, 627 (7th Cir. 2009); Smith v. Nurse, 2016 WL
4539698, at *4 (N.D. Ill. Aug. 31, 2016); Buchanan, 2012 WL 1987917, at *2. Defendants’
impeachment of Plaintiff in this context shall be limited to the fact that Plaintiff is a convicted
felon. If Defendant decides to impeach Plaintiff on this basis, the Court will provide a limiting
instruction to the jury explaining the proper use of prior convictions for impeachment at trial.
See Seventh Circuit Pattern Civil Jury Instructions 1.15 (“You have heard evidence that [Name]
has been convicted of a crime. You may consider this evidence only in deciding whether
[Name’s] testimony is truthful in whole, in part, or not at all. You may not consider this
evidence for any other purpose.”). However, the Court grants in part Plaintiff’s motion in limine
and bars reference to Plaintiff’s other prior convictions.
Illegal Drug Use on the Day of the Incident.
Plaintiff seeks to bar Defendants from introducing evidence of his alleged use of illegal
drugs on the day of the incident in question. Plaintiff argues that there is no actual evidence that
he was impaired or intoxicated or that he used narcotics “during the incident in question,” as
Defendants have not disclosed any medical expert witness. Defendants argue that there are
indications that Plaintiff used illegal drugs on the day of the incident and that evidence of drug
use on that day is relevant to the credibility of Plaintiff’s perception of the events that occurred.
The Court agrees with Defendants that evidence of Plaintiff’s alleged drug use on the day
of the occurrence is relevant to his understanding of the events as they occurred and his
credibility. See Saladino v. Winkler, 609 F.2d 1211, 1214 (7th Cir. 1979) (concluding that the
district court did not err in permitting defendant to prove that plaintiff was intoxicated at the time
of the incident to show that plaintiff’s judgment was impaired when the incident occurred);
Mowrey v. City of Fort Wayne, 2013 WL 6512664, at *5 (N.D. Ind. Dec. 12, 2013) (concluding
that whether plaintiff was intoxication or under the influence of any narcotics at the time of the
incident is relevant to the jury’s evaluation of his credibility and thus admissible for the purposes
of challenging his perception of the events); Casares v. Bernal, 790 F. Supp. 2d 769, 785–86
(N.D. Ill. 2011) (“Where there is reason to believe that alcohol or marijuana had seriously
impaired a witness’s memory of the events to which he is testifying or prevented him from
understanding the events at the time they occurred, evidence of his drug or alcohol use is
Plaintiff argues that Defendants should not be allowed to introduce evidence of a notation
in his medical chart indicating that his metabolic drug screen came back positive for opiates
because he was given intravenous opiate pain relievers upon his admission to the hospital.
Plaintiff further argues that even if he had tested positive for illicit, as opposed to medicinal
opiates, the metabolic drug screen would not conclusively establish that he consumed such
narcotics. However, this does not persuade the Court that it is necessary to bar this evidence, as
Plaintiff will have the opportunity to make those points through cross-examination at trial.
Casares, 790 F. Supp. 2d at 785–86. Thus, Defendants are permitted to introduce evidence of
this notation for opiates on Plaintiff’s medical chart. Additionally, Defendants are permitted to
testify as to what they observed regarding Plaintiff’s behavior during the incident. See Mowrey,
2013 WL 6512664, at *6; F.R.E. 701 (A witness is permitted to testify “in the form of an opinion
that is * * * rationally based on the witness’s perception[.]”). Thus, Plaintiff’s motion is denied
to this extent.
Prior Gang Affiliation
Defendants assert that they do not intend to introduce evidence of Plaintiff’s prior gang
affiliation, thus Plaintiff’s motion is granted to this effect.
Plaintiff’s Motion No. 4: Character Evidence of Defendants
Defendants do not oppose Plaintiff’s motion to bar evidence of commendations or awards
Defendants may have received in the course of their employment, and thus it is granted. Plaintiff
is similarly to refrain from introducing such evidence with respect to his course of employment.
Plaintiff’s Motion No. 5: Police Officers Risking Their Lives
Plaintiff moves in limine to bar Defendants from arguing that “police officers risk their
lives on the job.” Plaintiff argues that this is not relevant to the instant case and would divert the
jury’s attention away from the facts of the case. Alternatively, Plaintiffs contends that even if
Defendants are allowed to question witnesses with regard to the risk involved in police work,
Defendants should be barred from making any argument related to the general risks of police
work during closing arguments. Plaintiff requests that this motion encompass the fact that
Defendant Kelley may have been shot while on duty after the incident in question. On the other
hand, Defendants assert that arguments about the risks of police work are relevant because the
“fact that a police officer has a higher risk level than another profession has a significance to
how they react to situations while on duty and how they make decisions while on the job.”
The Court agrees with Defendants that the risks inherent to police work are relevant to
their decisionmaking process and affects how they might respond to various situations. Thus,
Plaintiff’s motion is denied in part. See Martinez v. City of Chicago, 2016 WL 3538823, at *25
(N.D. Ill. June 29, 2016) (denying similar motion); Jones v. City of Chicago, 2017 WL 413613,
at *8 (N.D. Ill. Jan. 31, 2017) (concluding that police officer defendants would be permitted to
make arguments about the requirements of their profession to the extent they are relevant to the
reasonableness of their conduct). Additionally, both parties have leeway in making their closing
arguments, and Defendants’ invocation of the general risks of police work is not so far beyond
the scope of relevance or so prejudicial that it requires exclusion under Rules 401 or 403.
Martinez, 2016 WL 3538823, at *25. That being said, the Court will entertain objections at trial
should Defendants’ arguments become gratuitous or otherwise violate the Federal Rules of
However, Plaintiff’s motion is granted to the extent that Defendants should not reference
the fact that Defendant Kelley may have been shot while on duty after the incident in question.
Defendants do not respond specifically to this part of Plaintiff’s motion. The Court agrees with
Plaintiff that since this shooting happened after the incident in question, the shooting would not
have factored into Defendant Kelley’s thought process on the day at issue, and is thus irrelevant.
Therefore, Plaintiff’s motion is granted in part.
Plaintiff’s Motion No. 6: Defendants Wearing Uniforms and Medals at Trial
Plaintiff seeks to bar Defendants and any other police officers who may be called to
testify from wearing their police uniforms and medals at trial. Plaintiff argues that the uniforms
and medals would constitute impermissible character evidence, may cast Defendants in a
favorable light and suggest that the officers have greater credibility due to their positions as
police officers, and have no bearing on the issue of whether Defendants violated Plaintiff’s
constitutional rights. Defendants assert that the witnesses that will be called at trial do not plan
on wearing any medals. However, Defendants argue that Plaintiff cites no case law or authority
that prohibits Defendants or other witnesses from wearing their uniforms at trial. Defendants
contend that many of the witnesses may be coming to testify while still on duty or right before or
after a shift which requires them to be uniformed. Further, Defendants argue that it will be
known that these individuals are police officers, so their uniforms will bear no prejudice to
The Court grants in part and denies in part Plaintiff’s motion. The Court declines to bar
Defendants and other witnesses from wearing uniforms at trial. However, they will not be
permitted to wear medals at trial. The risk of inconvenience to the officers is high, whereas the
risk of prejudice to Plaintiff is low, since the jury will otherwise be informed that the individuals
are police officers. See Case v. Town of Cicero, 2013 WL 5645780, at *4 (N.D. Ill. Oct. 16,
2013) (permitting officers to wear uniforms at trial but not medals or protective gear); Sughayyer
v. City of Chicago, 2011 WL 2200366, at *4 (N.D. Ill. June 6, 2011) (permitting defendant
officers to wear their uniforms in the courtroom for a § 1983 excessive force case and noting that
the defendant officers were wearing their uniforms when they allegedly committed the acts that
were the subject of the lawsuit and were being sued as police officers); Tolliver v. Gonzalez,
2011 WL 5169428, at *1 (N.D. Ill. Oct. 31, 2011) (permitting defendant officers to wear
uniforms but not medals at trial); Strong v. Clark, 1990 WL 70421, at *2 (N.D. Ill. May 4, 1990)
(permitting witnesses to wear uniforms to trial because of the inconvenience to the witnesses of
carrying a change of clothes and the fact that the jury will learn from testimony that the
witnesses are police officers).
Plaintiff’s Motion No. 7: Police Databases
Plaintiff seeks to bar Defendants from using police databases such as CLEAR Data
Warehouse, LEADS, or other computerized databases unique to the Chicago police department
during jury selection to obtain information about the arrest records of prospective jurors.
Defendants assert that they do not intend on using law enforcement databases for any purpose for
voir dire or after regarding the jury during the pendency of this trial, thus Plaintiff’s motion is
granted to this extent. See Martinez, 2016 WL 3538823, at *22 (granting plaintiff’s motion in
limine and noting that the propriety of allowing a litigant in a civil case to access police
databases to perform background checks on potential jurors and to use such information during
voir dire is an unsettled question in this district); Gonzalez v. Olson, 2015 WL 3671641, at *8
(N.D. Ill. June 12, 2015) (“Police defendants are not in a special position such that they should
be able to use private databases to aid them in selecting a civil jury when others cannot, even if
[ ] they propose to share their findings with a plaintiff.”); Dyson v. Szarzynski, 2014 WL
7205591, at *2–3 (N.D. Ill. Dec. 18, 2014) (articulating the cautionary concerns associated with
allowing these background checks on potential jurors).
Plaintiffs also seek more broadly to bar Defendants from using any other governmental
database for any purpose relating to this trial during the pendency of the trial. Defendants object
to this request, arguing that it is vague, overly broad, and without authority.
Defendants to not explain how they wish to use these databases relating to this trial. Since
Defendants do not offer a permissible purpose for which they would like to use the databases,
Plaintiff’s motion is provisionally granted. If Defendants can identify a permissible purpose for
the use of governmental databases, they may seek reconsideration of this ruling.
Plaintiff’s Motion No. 8: Arrest Records of Plaintiff and Nonparty Witnesses
Plaintiff seeks to bar any reference to the prior arrest records of Plaintiff and any
witnesses. Defendants assert that they do not intend on referencing prior arrest records or prior
arrest history of Plaintiff or any non-party witness, unless Plaintiff or a nonparty witness testifies
that they do not have a criminal history. Thus, Plaintiff’s motion is granted, and Defendants are
barred from referencing prior arrest records of Plaintiff and any witness, unless Plaintiff or a
witness opens the door. However, Defendants are permitted to reference the arrest on the day of
the occurrence, which Plaintiff concedes is relevant.
Plaintiff’s Motion No. 9: Medical Treatment was Excessive
Plaintiff moves to bar Defendants from arguing that his medical treatment was
“excessive, unnecessary, unreasonable, over-treating, or similar phrases.” Plaintiff explains that
absent stipulation by Defendants, it is anticipated that several of his treating physicians will
testify about the services rendered and the prognosis of his various injuries. Plaintiff argues that
since Defendants have not disclosed an expert witness, they have not established the necessary
foundation for any medical opinions and should thus be barred from arguing about the necessity
of Plaintiff’s medical treatment. Defendants, for their part, contend that Plaintiff’s logic runs
both ways, such that if they are barred from making this argument, then Plaintiff should be
barred from arguing that the medical treatment was necessary or non-excessive. Defendants
further argue that since they did not depose Plaintiff’s medical professionals, they are not aware
of what the treating physicians’ testimony will be at trial, and thus it is premature to bar
Defendants from making such argument.
Under Federal Rule of Evidence 701, a lay expert can present testimony in the form of an
opinion that is rationally based on the witness’s perception. Although a witness must have a
legitimate basis to testify about this subject, “expert testimony on this question [of medical
necessity] is not necessary as a matter of law in any and all instances.” Carlson v. Banks, 2007
WL 5711692, at *9 (N.D. Ill. Feb. 2, 2007); cf. Gil v. Reed, 381 F.3d 649, 659 (7th Cir. 2004)
(“In federal court, no expert testimony is needed [in a medical negligence case] when the
symptoms exhibited by the plaintiff are not beyond a layperson’s grasp.”); Ledford v. Sullivan,
105 F.3d 354, 360 (7th Cir. 1997) (no expert needed in deliberate indifference case where
plaintiff experienced nausea, dizziness, vomiting, a crawling sensation on his skin, emotional and
mental regression, and depression when the defendants deprived him of his medication). The
Court declines to bar Defendants from arguing that Plaintiff’s medical treatment was excessive,
but if a layperson is testifying to this effect, the layperson’s opinion testimony must be
“rationally based on the witness’s perception.” F.R.E. 701. Defense counsel may cross-examine
Plaintiff’s witnesses on whether Plaintiff’s treatment was unnecessary or excessive, and in so
doing may draw out testimony to support argument to that effect. See Carlson, 2007 WL
5711692, at *9. Further, Defendants may properly appeal to the jurors’ common sense in
addressing this issue. Id. Plaintiff’s motion is denied, subject to reassertion at trial, when issues
of foundation as to the particular witness at issue can be better assessed. See id.
Plaintiff’s Motion No. 10: Injured During Prior Arrest
Plaintiff seeks to bar argument or questioning regarding injuries he suffered during a
2008 arrest by Blue Island police officers. Plaintiff contends that his prior injuries are of his
right femur and the radius bone in his right forearm, and thus the injuries suffered in the incident
in question—injuries to his left foot, ulna bone in his right forearm, and ulna bone in his left
forearm—are in no way related. Defendants object to this motion as overly broad, arguing that
Plaintiff’s prior injuries, which occurred three years prior to the arrest at issue, are relevant to
Plaintiff’s motion is denied. See Carlson, 2007 WL 5711692, at *3 (denying plaintiff’s
motion to exclude reference to injuries she suffered before her arrest); Couch v. Vill. of Dixmoor,
2006 WL 3409153, at *2 (N.D. Ill. Nov. 27, 2006) (denying motion to bar evidence of plaintiff’s
prior injuries and noting although that the presence of a preexisting condition can cut both ways,
prior injuries may be relevant); Smith v. Sheahan, 2000 WL 765089, at *5 (N.D. Ill. June 12,
2000) (“To the extent there is evidence supporting that the [injury at issue] was the continuance
of prior injuries or that any of the pain and suffering was the continuance of prior injuries,
defendant will not be precluded from presenting evidence of the preexisting injuries or
conditions[.] * * * The jury will be appropriately instructed regarding consideration of
preexisting injuries and conditions and causation.”). The Court agrees with Defendants that
Plaintiff’s prior injuries are relevant to the issue of damages. Plaintiff is seeking remedies for
pain and suffering, loss of a normal life, and emotional distress. In 2008, Plaintiff fractured the
radius bone in his right forearm. During the occurrence at issue, Plaintiff fractured the other
bone—the ulna bone—in the same forearm. Therefore, any pain and suffering and distress
stemming from Plaintiff’s prior injury to the right forearm is relevant to his present damages
Plaintiff’s Motion No. 11: Dexter Moore’s Testimony Through Deposition
Plaintiff seeks to introduce Dexter Moore’s deposition testimony in lieu of live
testimony, as Moore resides in Alabama. Defendants do not object, and thus this motion is
granted. The parties are directed to submit to the Court by March 30, 2017 the transcript of
Moore’s testimony with the both sides’ designations and any objections to the designated
Defendants’ Motions In Limine
Defendants’ Motion No. 1 : Conspiracy, Code of Silence, or Blue Wall
Defendants seek to bar Plaintiff from arguing that a conspiracy existed, since Plaintiff has
not alleged the existence of a conspiracy in this case and there is no evidence to support an
allegation of conspiracy. Defendants also seek to bar any allegations of a police “code of
silence,” that police officers cover up for other police officers, or that there is a “blue wall.”
Defendants argue that there is no evidence to support such allegations and that speculation
regarding the “general nature of police officers” would be prejudicial to Defendants. Plaintiff
responds that even without an independent conspiracy claim, he has brought a failure to
intervene claim against Defendant Ellison and thus it is reasonable to argue that Defendant
Ellison covered up the wrongdoing of his fellow officer, Defendant Kelley.
Defendants’ motion is granted in part and denied in part. “District courts often exclude
generalized evidence of a code of silence, but permit plaintiffs to develop the theme that a code
of silence existed among the particular officers involved in the events underlying the complaint.”
Hillard v. City of Chicago, 2010 WL 1664941, at *3 (N.D. Ill. Apr. 23, 2010) (collecting cases).
Thus, even though Plaintiff has not brought an independent conspiracy claim, to the extent that
Plaintiff focuses on the particular Defendant officers and witnesses involved in this case, he may
explore the possibility that Defendants are biased because of their loyalty to one another.
However, generalized allegations related to other police personnel who are not involved in this
case are not relevant and are akin to impermissible propensity evidence. See Martinez, 2016 WL
3538823, at *7 (precluding “code of silence” references generally, but allowing the plaintiffs to
introduce evidence regarding bias with respect to the defendants in that case); Gonzalez, 2015
WL 3671641, at *14 (same); Bruce v. City of Chicago, 2011 WL 3471074, at *4 (N.D. Ill. July
29, 2011) (same); Maldonado v. Stinar, 2010 WL 3075680, at *4 (N.D. Ill. Aug. 5, 2010)
(same); see also Hillard, 2010 WL 1664941, at *3 (“Even absent a conspiracy claim, Plaintiff is
entitled to some leeway to argue the defendant officers and witness officers are covering for each
To the extent that Defendant is concerned about the use of the terms “conspiracy,” “code
of silence,” or “blue wall” confusing the issues and misleading the jury, the Court directs
Plaintiff to instead speak in terms of a “team effort” or similar terminology and to focus any
allegations of bias on the officers with knowledge of this incident. See Gonzalez, 2015 WL
3671641, at *14.
Defendants’ objection to any particular line of questioning can only be
assessed in the context of trial. However, the Court cautions Plaintiff that it will not permit a
sideshow on the issue of conspiracy, which is not properly before the jury. See Fed. R. Evid.
403, 611. Plaintiff is not permitted to argue that the officers conspired with each other to deprive
Plaintiff of his constitutional rights
Defendants’ Motion No. 2 : Prior Lawsuits
Defendants move to bar Plaintiff from providing evidence of prior citizen complaints,
disciplinary records, other incidents of excessive force, lawsuits, and other alleged police
misconduct. Defendants argue that this type of evidence is irrelevant, unfairly prejudicial, and
inadmissible character evidence. Plaintiff, for his part, contends that if Defendant Kelley opens
the door by testifying that “his character and personal reputation are such that he could not
possibly have violated” Plaintiff’s rights, he should be permitted to introduce evidence of other
excessive force lawsuits brought against Defendant Kelley.
Plaintiff also seeks to introduce evidence of Defendant Kelley’s history of excessive
force lawsuits to impeach Defendant Kelley. Plaintiff contends that Defendant Kelley lied in his
answers to interrogatories. In his answers to interrogatories, Defendant Kelley identified two
lawsuits that have been filed against him, but omitted four additional lawsuits that have been
filed against him. Defendant Kelley admitted during his deposition that he was named in the
additional lawsuits but defended the omission by asserting that he had no knowledge of the
additional suits because the City has a practice of not informing its officers when they are sued.
Defendants also argue that Plaintiff should not be permitted to impeach Defendant Kelley on this
Defendants’ motion is granted in part and denied in part. To the extent that Plaintiff
would like the jury to infer that because Defendant has had civil lawsuits brought against him in
the past, he must have used excessive force on Plaintiff, this is an impermissible propensity
Additionally, impeaching Defendant Kelley by introducing the nature of these
previous lawsuits would be improper and unduly prejudicial. See United States v. Kozinski, 16
F.3d 795, 805 (7th Cir. 1994) (“[O]ne may not impeach by contradiction regarding “collateral or
irrelevant matter.” (citation and internal quotation marks omitted)). Further, the presentation of
evidence that each side may offer to place Defendant Kelley’s omission in context would risk
confusing the jurors and create an unnecessary sideshow about allegations that are not at issue in
this trial and about whether Defendant Kelley inadvertently or knowingly failed to disclose the
existence of these unrelated lawsuits. See Fed. R. Evid. 403, 611.
However, Plaintiff may introduce the fact of Defendant’s omission for impeachment
purposes, without getting into the nature of the omitted lawsuits. This should be a very simple
Question: Did you state in your sworn written discovery responses in this case
submitted on [date] that two lawsuits have been filed against you?
Question: Isn’t it true that as of that date six lawsuits actually had been filed
Additionally, if Plaintiff believes that Defendant Kelley has opened the door by putting his
character at issue, Plaintiff’s counsel may request a sidebar to discuss whether he may reference
the nature of the previous lawsuits.
Defendants’ Motion No. 3 : Defendant Ellison’s DUI Conviction
Defendants seek to bar evidence of Defendant Ellison’s DUI conviction.
concedes that this DUI conviction is neither a felony conviction nor a misdemeanor involving
fraud or dishonesty and thus agrees not to introduce it as evidence unless Defendant Ellison
opens the door. Thus, Defendants’ motion is granted.
Defendants’ Motion No. 4 : DOJ Letter
Defendants seek to bar arguments relating to a January 18, 2012 letter from the U.S.
Department of Justice. Plaintiff concedes that the DOJ letter is not relevant since the Monell
claim has been bifurcated. Thus, Defendants’ motion is granted.
If Defendant Kelley wishes to explore the nature of these lawsuits in response to questions from his
counsel, he may open the door to additional questioning by Plaintiff’s counsel that otherwise would have
Defendants’ Motion No. 5 : Indemnification and “Sending a Message”
Defendants move to bar Plaintiff from arguing that the City will indemnify the Defendant
officers, arguing that any evidence as to indemnification is irrelevant. Plaintiffs argue that they
are seeking punitive damages, and thus the jury should be informed that the City is obligated to
indemnify Defendants for compensatory but not for punitive damages.
“In the general case courts exclude evidence of indemnification out of a fear that it will
encourage a jury to inflate its damages award because it knows the government—not the
individual defendants—is footing the bill.” Lawson v. Trowbridge, 153 F.3d 368, 379 (7th Cir.
1998); see also Kemezy v. Peters, 79 F.3d 33, 37 (7th Cir. 1996) (“When the defendant is to be
fully indemnified, such evidence, far from being required, is inadmissible”). However, if a
defendant who benefits from a right to indemnification nevertheless claims an inability to pay
damages, the defendant is deemed to have “opened the door” to evidence of indemnification.
See Jones, 2017 WL 413613, at *4 (explaining that in general, courts bar evidence of
indemnification because it may encourage juries to inflate compensatory damages award, but
allowing plaintiff to introduce evidence of the City’s indemnification if Defendants open the
door by presenting evidence of their financial condition); Betts v. City of Chicago, 784 F. Supp.
2d 1020, 1030–31 (N.D. Ill. 2011) same); Gonzalez, 2015 WL 3671641, at *7 (same).
Thus, Defendants’ motion is granted in part and denied in part.
indemnification is inadmissible, unless Defendants open the door by bringing their personal
financial circumstances into the case or suggesting any hardship on them in conducting the
defense. If Defendants choose to “apprise the jury of the fact that the individual officers will
have to bear [punitive] damages out of their own pockets,” then “fairness would dictate that the
jury also be informed of the true situation (indemnification) as to compensatory damages.”
Galvan v. Nordberg, 2006 WL 1343680, at *2 (N.D. Ill. May 10, 2006). Thus, if Defendants
offer evidence of their financial circumstances, the Court will instruct the jury that the City
indemnifies for compensatory damages, but not for punitive damages, and that the jury is to
consider Defendants’ financial information only for its valuation of the punitive damages, if any,
that it would award in this case.
Defendants also seek to bar any reference to “sending a message” to the City or
punishing the City. Defendants contend that this “sending a message” argument is an improper
request for punitive damages from the City and unfairly prejudicial. Plaintiff concedes that he
cannot seek punitive damages from the City but argues that he should still be able to ask the jury
to “send a message” to the City.
Defendants’ motion is granted in part and denied in part. Plaintiff is permitted to argue
that he is attempting to deter Defendant officers and other police officers from misconduct. See
Martinez, 2016 WL 3538823, at *14 (“[Plaintiff] may argue that punitive damages are
appropriate to serve as an example to other officers that they should not do what Defendants did
in this case[.]”); Betts, 784 F. Supp. 2d at 1033; Bruce, 2011 WL 3471074, at *6. However, any
argument that he would like the “send a message” to the City implies that the City has a policy or
practice of condoning such misconduct, which is not being addressed in this trial, since the
Monell claim has been bifurcated. Therefore, Plaintiff is barred from making any argument that
the jury should “send a message” to the City.
Defendants’ Motion No. 6 : Defendant Ellison’s Hearsay Statements
Defendants seek to bar any reference to certain statements allegedly made by Defendant
Ellison to Plaintiff at Ingalls Hospital. In Plaintiff’s September 3, 2014 deposition, Plaintiff
testified that Defendant Ellison asked him, “No matter what you’ve done, what are you going to
do about what happened to you?”, and that Defendant Ellison stated, “This is not the first time
that he [sic] done this. You need to take some type of action towards it.” Plaintiff further
testified in his deposition: “I just took it for that. I mean, I just heard him. I can’t say what he
was referring to, but * * *.” Defendants argue that Plaintiff’s deposition testimony about
Defendant Ellison’s statements constitutes hearsay. Defendants also contend that the statements
are vague and unfairly prejudicial and should thus be barred by Rule 403.
Plaintiff argues that Defendant Ellison’s statements are not hearsay under Rule 801(d)(2).
Plaintiff further contends that the statements are not ambiguous and that they plainly establish
that Defendant Ellison knew of Defendant Kelley’s likelihood of using force and that he felt the
situation warranted Plaintiff taking action against Defendant Kelley. Defendants assert that the
statements may also be interpreted to mean that Defendant Kelley “made a false statement, false
arrest, false identification, malicious prosecution [sic] or any other type of slight misconduct that
may be simply reported to a supervisor.” Defendants contend that the statements do not mention
force and thus should not be interpreted to refer to excessive force. According to Defendants,
since Plaintiff did not know what Defendant Ellison was referring to even though Plaintiff as
present when the statements were made, the statements are vague.
Defendants’ motion is denied. A statement of a party opponent is not hearsay under
Federal Rule of Evidence 801(d)(2)(A), which “provides that a statement is not hearsay and may
be admitted when the statement in question is offered against a party and is the party’s own
statement.” United States v. Reed, 227 F.3d 763, 769 (7th Cir. 2000). Statements admitted
under Rule 801(d)(2)(A) need not be inculpatory. Id. Thus, Defendant Ellison’s statements are
Additionally, the statements can be interpreted to imply Defendant Ellison’s
awareness of some sort of prior misconduct by Defendant Kelley and are thus relevant to
Plaintiff’s failure to intervene claim against Defendant Ellison. Finally, there are no false arrest
or malicious prosecution allegations against Defendant Kelley, and Plaintiff does not allege that
Defendant Kelley made a false statement or false identification. Given this context, the Court is
not convinced by Defendants’ attempt to construe Defendant Ellison’s statement as overly vague
or unduly prejudicial.
Defendants’ Motion No. 7 : Citizen Complaints about the City
Finally, Defendants move to bar evidence regarding misconduct, citizen complaints, and
allegations against non-party Harvey officers and the City. Plaintiff concedes that this motion
pertains strictly to the Monell claim against the City. Since the Court granted Defendants’
motion to bifurcate, Defendants’ motion in limine is granted.
For the reasons set forth above, Plaintiff’s motions in limine are granted in part and
denied in part as follows: the Court grants Plaintiff’s motions No. 1, 2, 4, 7, 8, and 11; the Court
grants in part and denies in part Plaintiff’s motions No. 3, 5, and 6; and the Court denies
Plaintiff’s motions No. 9 and 10. Defendants’ motions in limine are granted in part and denied in
part: the Court grants Defendants’ motions No. 3 , 4 , and 7 ; the Court grants in part
and denies in part Defendants’ motions No. 1 , 2 , and 5 ; and the Court denies
Defendants’ motion No. 6 . This case remains set for a jury trial to commence on April 3,
2017. The Court directs the parties to submit a revised exhibit lists that take into account the
Court’s rulings above no later than 12:00 p.m. (noon) on March 31, 2017.
Dated: March 28, 2017
Robert M. Dow, Jr.
United States District Judge
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