Simmons et al v. The City of Chicago et al

Filing 263

MEMORANDUM OPINION AND ORDER signed by the Honorable Matthew F. Kennelly on 8/28/2017: The Court rules on the parties' motions in limine as set forth in the accompanying Memorandum Opinion and Order. The Court will issue a separate order on defendants' motion to bifurcate. (mk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ARETHA SIMMONS, et al.,
Plaintiffs,
vs.
CITY OF CHICAGO, et al.,
Defendants.

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Case No. 14 C 9042

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
The plaintiffs in this case, several members of the Simmons family, allege that on
August 29, 2013, a number of Chicago police officers executing a search warrant used
excessive force by pointing a gun at three-year-old Davianna Simmons and her
grandmother Emily Simmons and by using unreasonable physical force against
Davianna's mother Aretha Simmons, and unconstitutionally took the property of Aretha,
Keith, and Emily Simmons. Aretha Simmons was arrested on the porch of the home;
she was prosecuted and was eventually acquitted. She does not assert any claims
challenging her arrest or prosecution. Alonzo McFadden, allegedly Aretha's boyfriend,
was arrested in front of the home before the officers entered, but he is not a plaintiff in
this case and has not separately sued to challenge his arrest or prosecution.
In addition to their claims against a number of police officers for excessive force
and unlawful seizure, the plaintiffs assert a Monell claim or claims against the City of
Chicago, alleging that the City had policies of failing to supervise police officers; failing

to investigate and discipline officers for misconduct; and maintaining a "code of silence"
about officer misconduct. These policies, plaintiffs contend, caused the constitutional
violations that they suffered.
In this order, the Court rules on the parties' motions in limine. The Court expects
and directs counsel to advise witnesses in advance of their testimony of its rulings on
these motions so that they are not violated. The Court also notes that a party that has
succeeded in excluding evidence may, of course, open the door to its admissibility. If
an opposing party believes this has occurred, it must raise the issue outside the jury's
presence and seek permission before introducing evidence the Court has excluded.
The Court will address first several of plaintiffs' motions that concern the scope of
properly admissible evidence surrounding the events of August 29, 2013. The Court will
then address all of defendants' motions in limine and will return to address the
remainder of plaintiffs' motions in limine. The defendants have also moved to bifurcate
the individual claims from the Monell claims for trial; the Court will rule on that by way of
a separate order.
A.

Plaintiffs' motions 1 through 6 and motion 9
1, 4 & 5. Silver purse and drug paraphernalia; relationship between Aretha

Simmons and Alonzo McFadden; arrest and prosecution of Aretha Simmons
Plaintiffs' motions in limine 1, 4, and 5 concern the admissibility of evidence
surrounding the arrest and prosecution of plaintiff Aretha Simmons, her relationship with
Alonzo McFadden, and certain items seized from Ms. Simmons. Some background is
necessary. Police obtained a warrant authorizing the search of McFadden and the
premises at 930 N. Keystone Avenue and the seizure of firearms. The warrant and

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application reference information obtained from a "J. Doe" informant about McFadden
and the Keystone residence. Specifically, the informant said that on August 28, 2013,
he/she had observed McFadden at the residence with a loaded 9 mm Glock pistol with
a defaced serial number. The informant stated that he/she knew McFadden to be a
member of a particular street gang. The officer who completed the complaint for a
search warrant stated, among other things, that he had verified that McFadden was a
convicted felon, most recently convicted on a charge of unlawful use of a weapon by a
felon. As indicated, the warrant authorized a search of McFadden and the Keystone
residence for firearms that had been used in the commission of, or constituted evidence
of, the offense of unlawful use of a weapon by a felon.
The defendant officers, and perhaps others, went to the Keystone residence the
next day to execute the warrant. Police reports reflect that during pre-execution
surveillance, officers observed McFadden engage in several hand-to-hand transactions
with others in which he accepted currency in exchange for items that he retrieved from a
plastic baggie taken from a silver purse on the porch of the residence. Police officers
took McFadden into custody on the sidewalk or walkway in front of the home; he
evidently had no firearm or other contraband on his person. A key to the residence was
recovered from his person. Aretha Simmons was on the front porch; it is claimed that
she grabbed the silver purse from a chair on the porch and sat on another chair. Two
officers confronted her and took the purse; it contained a loaded 9 mm Glock pistol with
the serial number defaced. It also contained a plastic baggie that in turn contained 21
zip lock baggies of suspected heroin and 3 zip lock baggies of suspected cannabis. Ms.
Simmons was taken into custody. The officers on the scene do not appear to contend

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that either McFadden or Ms. Simmons resisted in any way.
Other officers entered the house. There is deposition testimony by at least one
officer that a code was called out from the porch indicating that a gun had been found.
Elsewhere in the house, officer found a loaded .38 caliber revolver, a loaded 12 gauge
shotgun, a scale, and narcotics-type packaging.
About a half hour after the execution of the warrant, Keith Simmons arrived on
the scene. Police reports reflect that he told officers that his daughter (Aretha
Simmons) had been dating McFadden; McFadden spent a good deal of time at the
Keystone residence; Mr. Simmons suspected McFadden of criminal activity; and he had
"tried to warn my daughter about him."
McFadden and Aretha Simmons were taken to a police station. Police reports
reflect that McFadden gave officers access to his cellular phone, which contained
photographs showing him sitting on the porch of the Keystone residence and being
hugged by Emily Simmons, Aretha Simmons's mother. He also is claimed to have said
at the police station that the Glock wasn't his and that someone had tried to sell it to him
but he refused because the price was too high. Aretha Simmons is claimed to have
said at the police station that the gun belonged to McFadden and that he kept it in the
purse while he was working because "he's into it with some people and doesn't want to
be robbed."
Aretha Simmons was charged with unlawful possession of a firearm with a
defaced serial number (as well as possession without a valid firearm owner's
identification card) and possession of controlled substances and cannabis. She was
found not guilty after a bench trial. McFadden was charged with possession of a

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controlled substance with intent to deliver and unlawful use of a weapon by a felon. He
either pled guilty or was found guilty. It does not appear that anyone was charged with
criminal offenses arising from the seizure of the .38 revolver, the shotgun, or the scale
and alleged drug packaging found in the Keystone residence.
In the final pretrial order in the present case, plaintiffs describe their claims
against the individual defendants as follows:
one or more defendant officers used excessive force by allegedly pointing
a gun toward Davianna Simmons and Emily Simmons, and by using
excessive physical force against Aretha Simmons, unconstitutionally took
the property of Plaintiffs Emily Simmons, Keith Simmons and Aretha
Simmons, and failed to intervene when one more of the other defendants
officers used excessive force or unconstitutionally seized property.
Final Pretrial Order at 2. The excessive force claim involves: (1) how the police handled
Aretha Simmons after taking her into custody and bringing her into the home, and (2)
pointing guns at Emily Simmons and Davianna Simmons (who was three years old at
the time), allegedly without a good reason. As the Court understands the claim for
unlawful seizure of property, plaintiffs do not contend that the entry into the home or
search of the home were unlawful. Rather, they challenge the manner of the search.
Specifically, they allege that defendants unreasonably destroyed or damaged property
while entering and searching the home and that they converted to their own use jewelry
and cash belonging to the Simmonses. See Compl. ¶ 34.
In their motions in limine 1, 4, and 5, plaintiffs seek exclusion of all or at least
most of the evidence discussed above as irrelevant or unfairly prejudicial. They argue
that Alonzo McFadden is not a party and that evidence of his bad acts will unfairly
prejudice them; they are not challenging the legality of the arrest or prosecution of
Aretha Simmons; and because defendants contend that they used no force on Ms.
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Simmons, the events that preceded the alleged use of force are irrelevant. Plaintiffs
also argue that information not known to the officers at the time of the incident is
irrelevant. Plaintiffs' contention is that "the only factual background" that the jury
appropriately should hear is "that Defendant Officers were present on the Simmons'
property on August 29, 2013, and that, while there, officers handcuffed Aretha Simmons
and conducted a search of the house." Pls.' Mots. In Limine at 3. The rest, plaintiffs
argue, does not make more or less likely any matter the jury will have to decide.
Defendants intend to offer all of the evidence summarized above. They argue
that it is important to be able to explain why they were at the residence; why they
searched it in the way they did; why their guns were drawn; and so on. Defendants also
wish to introduce mug shots taken after Ms. Simmons's arrest and testimony from
medical personnel who examined her post-arrest to attempt to rebut her claims
regarding the nature of the force used against her. More generally, defendants contend
that "[p]laintiffs want to sanitize this case and not allow the jury to have a complete
understanding of what happened . . ., the reason why the police came to the house, the
reason why the police had their guns drawn upon entry to the home, and the potential
reason why plaintiff did, in fact, actively participate in the possession of a defaced gun
and drugs." Defs.' Resp. to Pls.' Mots. In Limine at 2.
The Court's conclusion is that it is not an all-or-nothing proposition. Some of the
evidence in question is relevant and admissible, and some is irrelevant or unfairly
prejudicial and therefore inadmissible. In ruling, the Court thinks it important to keep a
few points in mind. First, defendants' contention that the law requires telling "the full
story of events," Defs.' Resp. to Pls.' Mots. In Limine at 9, basically amounts to throwing

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the rules of evidence out the window. This, of course, is inappropriate. Evidence must
be relevant to be admissible. Fed. R. Evid. 402. The definition of relevance is not
whether the evidence is part of "the full story," but rather whether it has any tendency to
make more or less probable "a fact that is of consequence in determining the action."
Id. 401.
Second, the opposite side of this coin is that plaintiffs' approach essentially would
require the jury to view the case with blinders on. If the only background evidence the
jury were permitted to hear is that the officers were there and handcuffed Aretha
Simmons, the jury would be left in the dark regarding why the officers were conducting a
search and why they did it in the manner they contend (or why, if they did it as plaintiffs
contend, it might have been reasonable). Among other things, a jury might conclude
from this that the officers had no basis to enter the house and that they had no reason
to handcuff Ms. Simmons. That could unfairly skew the jury's view of the events
surrounding the alleged use of force and search of the home.
The Court notes that one of the factors the law says may be relevant in deciding
whether force is unreasonable and therefore excessive is the nature of the crime at
issue. See Graham v. Connor, 490 U.S. 386, 396 (1989). In this case the officers were
authorized to search the premises and seize evidence relevant to possession of a
firearm by a felon. The Court does not mean by this to suggest that this would justify
roughing up Ms. Simmons—it would not—but the nature of the crimes being
investigated has an undeniable bearing on the jury's determination of the officers'
justification for acting as they did in their interaction with the Simmonses and their
search of the house.

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On the other hand, the Court agrees with plaintiffs that evidence acquired after
the fact is not relevant, or if relevant it has only minimal probative value far outweighed
by its potential for unfair prejudice. In addition, the jury will not be called upon to
determine the legal propriety of prosecution of Aretha Simmons or Alonzo McFadden;
there are no "wrongful conviction"-type claims in this case.
With these considerations in mind, the Court concludes that the evidence on the
following points is relevant, not unfairly prejudicial, and admissible:
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the contents of the warrant application and warrant;

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what the officers observed Mr. McFadden doing before they approached the
residence;

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taking Mr. McFadden into custody and what was (and was not) on his person;

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what the officers observed Aretha Simmons do;

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taking Ms. Simmons into custody and what they found in the purse;

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the search of the house and recovery of two firearms;

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their arrest of Ms. Simmons and the basis for it; and

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evidence of Ms. Simmons's physical condition after the arrest.

The Court concludes that evidence on the following points is irrelevant, unfairly
prejudicial in a way that significantly exceeds its unfair probative value, or both, and
therefore inadmissible:
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the charging and prosecution of Mr. McFadden;

•

statements made by Mr. McFadden post-arrest;

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statements made by Ms. Simmons post-arrest;

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statements made by Keith Simmons after execution of the warrant;
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the recovery of narcotics packaging and a scale from the house; and

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lab reports regarding narcotics seized from the purse.

The Court believes that this completely resolves plaintiffs' motions 1, 4, and 5. If this is
incorrect, the parties should so advise the Court at the next status hearing.
2.

Participation of defendants on a "gun team"

This evidence is irrelevant and unfairly prejudicial in a way that far outweighs
whatever minuscule probative value it might be claimed to have. It is excluded.
3.

"Bad neighborhood" / "dangerous neighborhood" evidence

This evidence is likewise excluded as irrelevant and unfairly prejudicial. The
defendants entered the home not because it was in a bad neighborhood but because
they had a warrant, and they claim to have acted as they did because of what the
warrant indicated and because of what they observed in front of and in the home. In
addition, plaintiffs are not offering the "relocation" opinion by Dr. Karnik, which
defendants suggested would cut against excluding this evidence.
6.

Arrest and prosecution of Alonzo McFadden

Evidence regarding the circumstances of the arrest of Alonzo McFadden is
relevant for the reasons discussed with respect to plaintiffs' motions in limine 1, 4, and
5. By contrast, evidence regarding his charging and prosecution is irrelevant and
unfairly prejudicial in a way that significantly exceeds its claimed probative value in
terms of "lending credibility" to the officers' testimony (as defendants contended at the
hearing on the motions).
9.

Alcohol consumption by Emily Simmons

This evidence is excluded under Rules 402 and 403. Defendants have offered

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no evidentiary foundation for a level of alcohol use that might impair Emily Simmons's
credibility or ability to recall.
The Court will address the remainder of plaintiffs' motions in limine after
addressing defendants' motions.
B.

Defendants' motions
1.

Police department rules and regulations

The Court denies defendants' request for a blanket exclusion of evidence relating
to compliance with police department general orders, rules, and regulations. Such
evidence may be relevant and admissible on the question of intent, and it likewise may
be admissible on the question of punitive damages. See generally Mays v. Springborn,
575 F.3d 643, 650 (7th Cir. 2009). Defendants will have to assert this objection on an
item-by-item basis at trial.
2.

Failure to discipline defendant officers for conduct in this case

Evidence that the defendant officers were not disciplined for their actions in this
case is excluded. On the claims against the individual officers, this evidence is
irrelevant regarding whether an underlying constitutional violation was committed.
Plaintiffs also contend the evidence is relevant and admissible on the Monell claim. But
no complaint was made against the officers; plaintiffs' contention is that the police
department failed to act after this lawsuit was filed. Given that background, this
evidence has minimal, if any, probative value regarding the Monell claim, and plaintiffs
have plenty of other evidence to offer in support of their Monell failure-to-discipline
contentions. This evidence is excluded under Federal Rule of Evidence 403 on the
Monell claim.

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3.

Mentioning during jury selection the amount of damages requested

The Court will be conducting the voir dire of the prospective jurors in this case, so
there will be no occasion for counsel to attempt to advance their respective theories of
the case or for plaintiffs' counsel to identify the dollar amount they will ask the jury to
award. If counsel are permitted to ask any questions during the voir dire, they are
precluded from discussing the dollar amounts they will request.
4.

"Motion to bar plaintiff from making an improper opening statement"

Defendants' request to preclude an improper opening statement by plaintiffs is
denied, because it is basically a request for an order to follow the rules, which is
superfluous and should be unnecessary. The Court admonishes counsel for both sides,
however, that opening statements properly include only a description of what counsel
believe the evidence will show, not a mini closing argument. If any party believes that
opposing counsel is making improper argument during opening, that party should object
contemporaneously, and the Court will enforce the rules as appropriate.
5.

Complaints / lawsuits against defendants and police witnesses

Defendants seek to exclude any evidence regarding prior complaints against the
defendant officers and non-defendant officer witnesses, arguing that it is inadmissible
under Federal Rule of Evidence 404(b). In plaintiffs' response and at the hearing on the
motions in limine, plaintiffs' counsel made reference to two specific matters, the "White"
and "Nash" matters, arguing that these are relevant to show intent in connection with
the incident in the present case. Both cases involved allegations of pointing weapons at
minors. The White matter, however, was a lawsuit that resulted in a jury verdict for the
police officer(s). It is on appeal, and plaintiffs believe it is still relevant because, they

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contend, important evidence was excluded at the trial. The Court concludes that even if
the White matter might be otherwise admissible under Rule 404(b), the waste of time
involved in explaining the trial, the appeal, and the purportedly excluded evidence far
outweighs the probative value of the evidence. The Court excludes this evidence under
Rule 403. The Court does not know enough about the details of the Nash matter to
make a ruling at this point regarding whether it is admissible under Rules 404(b) and
403. Further input from the parties will be required.
Plaintiffs also wish to offer, as part of their Monell case against the City, statistical
evidence regarding the numbers of complaints against the defendant officers (and
perhaps some non-defendant officer witnesses) and the absence of discipline or other
corrective action. This does not make this sort of statistical evidence separately
admissible on the claims against the defendant officers. The Court concludes that, on
the individual claims, plaintiffs have not established the admissibility of this evidence
under Rule 404(b). On the other hand, defendants have not persuasively argued that
plaintiffs' statistical evidence is irrelevant on the Monell claims or that it is inadmissible
on those claims under Rule 403. The fact that some of plaintiffs' statistical case
includes statistics concerning officers involved in the events in the present case does
not tilt the balance against admission with regard to the Monell claims.
6.

Evidence of other police misconduct / police shootings

Evidence regarding the shootings of Laquan McDonald, Cedrick Chatman,
Christian Green, and Lamar Harris by Chicago police officers not involved in this case is
excluded under Rule 403. Admitting any of that evidence would make this case devolve
into a series of mini-trials that would significantly divert attention from the issues the jury

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will have to decide. In addition, these events are not particularly similar, as the present
case did not involve an actual shooting, and the child-plaintiff in this case was three
years old at the time of the incident, whereas the others were teenagers.
7.

Appointment of new police superintendent and investigative

agencies
Plaintiffs have disavowed any intention to offer evidence of the appointment of a
new superintendent of police or the establishment of new investigative agencies to
review claims of police misconduct. The Court grants defendants' motion in limine
seven concerning such evidence.
8.

"Send a message to the City" / "punish the City"

The City of Chicago cannot be held liable for punitive damages, so any argument
that the jury should punish the City would be improper. In terms of arguments about
"sending a message," the Court agrees with plaintiffs that they may properly "ask the
jury to 'send a message' by awarding full compensatory damages" against the City.
See Christmas v. City of Chicago, 691 F. Supp. 2d 811, 820 (N.D. Ill. 2010). The Court
overrules defendants' motion to that extent.
9.

Reference to indemnification by City

Defendants expressly disavowed at the August 10 hearing any intention to offer
evidence or make argument regarding police officers' modest pay, financial hardship,
onerousness of a verdict, or other similar arguments. Given that express undertaking,
the Court bars any evidence or argument regarding indemnification of the individual
defendants by the City for compensatory damages or otherwise.

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10.

Officers' lawyers as lawyers for the City

The Court grants this motion. Plaintiffs may not refer to the officers for the
individual defendants as working for the City.
11.

Reference to how the City disciplines police officers

This motion is denied; evidence regarding how the City disciplines police officers
is quite obviously relevant and admissible on plaintiffs' Monell claims. Plaintiffs have
expressly committed not to offer such evidence in a bifurcated trial against the individual
officers only, so it is excluded if there is such a trial. Just as any party may open the
door to otherwise excluded evidence at trial, the officer defendants may open the door
to admission of evidence on this point if, among other things, they introduce evidence or
argue that they were not disciplined in connection with the incident in this case.
12.

Police personnel being paid their salary to testify

This motion is granted, but plaintiffs may, as they argue, bring out evidence
regarding training of police officers on testifying in court, the frequency of their
testimony, and the fact that it is a routine part of their jobs.
13.

"Plaintiffs have waited a long time for their day in court"

Plaintiffs do not oppose this motion, so it is granted.
14.

Lay opinion testimony regarding injuries

Plaintiffs (and perhaps other witnesses) may properly testify regarding plaintiffs'
symptoms, when they began, their duration, and so on, and they may properly testify
regarding their own perceptions. Lay witnesses, however, may not self-diagnose and
may not testify regarding what was communicated to them by medical personnel
regarding their conditions or any diagnosis.

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15.

"Racist police officers"

The Court denies this motion to the extent defendants seek to bar plaintiffs from
introducing comparative evidence regarding discipline of police officers when the
complainant is a member of a racial minority. The motion is otherwise too general to
rule on in a blanket manner prior to trial. Defendants should object to any evidence or
argument that they believe is improper, and they may renew this motion if they wish
before closing arguments.
16.

Outcome of Aretha Simmons criminal charges

Earlier in this order, the Court denied plaintiffs' motion to bar evidence regarding
the arrest and charging of Aretha Simmons in connection with the incident at issue.
Defendants acknowledged at the hearing, and the Court now reaffirms, that if that
evidence comes in, it opens the door to evidence that Ms. Simmons was acquitted of
the charges, to avoid misleading the jury.
17.

Other negative encounters between plaintiffs and police officers

Plaintiffs do not oppose this motion, so the Court grants it.
18.

Testimony by Davianna Simmons

Based on the Court's in-person observation of Davianna Simmons's testimony
during her deposition and its review of the relevant law, the Court finds that she is
competent to testify and thus permits the playing of her video deposition at trial. She
sufficiently expressed an understanding of the need to tell the truth (including what "the
truth" means), and her memory of the events is sufficient to meet the competency
threshold. Her memory is not perfect, of course, but the appropriate way to deal with
that is by testing it on cross-examination, as defense counsel did during the deposition.

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The Court rejects defendants' contention that Davianna was unduly influenced by
anyone or that her memory has been enhanced by others; as plaintiffs argue, there is
no evidence to support that.
19.

Participation by plaintiffs in CAPS / neighborhood watch programs

Plaintiffs do not oppose exclusion of this evidence, so the Court bars it, with the
caveat that the door may be opened by, among other matters, evidence or questioning
regarding bias against the police.
20.

Participation in church activities and prayer

Davianna Simmons testified that she prays most nights that the police will not
come back. This evidence is relevant on the question of her ongoing injuries and
damages, and it is not unfairly prejudicial. Testimony that Keith Simmons works parttime as a church deacon is relevant background, just as the employment of any witness
is typically relevant, and it is not unfairly prejudicial. Defendants' motion is granted,
however, with regard to church-related evidence or argument other than these two
points (participation in church activities, the fact that plaintiffs are church-going people,
etc.).
21.

Building court matters involving the Simmons family

This motion is unopposed by plaintiffs, so the Court grants it.
22.

Evidence about Obrycka, Padilla, and other Monell cases against the

City
Evidence regarding other particular Monell cases against the City, including the
Obrycka and Padilla cases, is excluded under Rule 403. The amount of evidence that
would be required to explain the facts and decisions in those cases would divert the jury

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in a way that significantly outweighs the probative value of the evidence. On one
particular point, plaintiffs want to introduce evidence regarding the City's non-action
following the Obrycka case. This does not change the Court's analysis under Rule 403;
the probative value of the particular evidence is not terribly significant.
23.

Department of Justice report regarding Chicago Police Department

Earlier this year, the U.S. Department of Justice issued a report following an
investigation of the Chicago Police Department and the Independent Police Review
Authority. Plaintiff intend to offer portions of the report to support their Monell claim,
specifically sections concerning the adequacy of investigation, discipline, and
supervision of use-of-force complaints; failure to discipline officers when the victims of
use of force are African-American; the existence of a "code of silence"; and the use of
force against minors. Defendants argue the report is inadmissible hearsay and
alternatively that it should be excluded under Rule 403.
The Court overrules defendants' hearsay objection. The report contains factual
findings resulting from a legally authorized investigation and is therefore admissible
under Federal Rule of Evidence 803(8)(A)(iii) absent a finding of lack of trustworthiness,
which defendants have not attempted to show. See Daniel v. Cook Cty., 833 F.3d 728,
740 (7th Cir. 2016). The Rule's reference to "factual findings" includes "an evaluative
report containing both opinions and conclusions," and a report that combines third-party
statements with an investigator's observations and conclusions also qualifies. Id.
The Court also overrules defendants' Rule 403 objection. The report is, no
doubt, prejudicial, but the Rule requires a showing of unfair prejudice that significantly
outweighs the probative value of the evidence. Defendants have failed to show any

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unfair prejudice with regard to points that are directly at issue in this case, including
plaintiffs' Monell-based contentions regarding failure to supervise, investigate, and
discipline allegations of excessive force and their allegations regarding the comparative
treatment of complaints where the alleged victim of excessive force is African-American.
And the report has significant probative value. See Daniels, 833 F.3d at 731 (similar
findings in a DOJ report regarding the Cook County Jail "go a long way toward meeting
a plaintiff's burden of proving an unconstitutional custom, policy or practice under
Monell").
The Court excludes, however, the portions of the report concerning a "code of
silence" within the police department and use of excessive force against minors, under
Rule 402, Rule 403, or both. The discussion on the latter point appears to be focused
on teenagers, not toddlers or very young children. And at the hearing on the motions in
limine, plaintiffs were unable to articulate a viable theory of how the alleged code of
silence affects this case—given the absence of a complaint or an investigation
regarding the incident in question.
The Court also reserves the right to make further orders regarding the specific
portions of the DOJ report that will be admitted in evidence.
24.

Police Accountability Task Force report

Plaintiffs also wish to offer in support of their Monell claim sections from a 2016
report issued by a Police Accountability Task Force appointed by Chicago Mayor Rahm
Emanuel. Specifically, they seek to admit portions of the report regarding an evaluation
of inadequacies in the police department's disciplinary system. Defendants seek to
exclude the report as hearsay and under Rule 403.

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The Court overrules defendants' objection. First of all, the report is not hearsay;
it qualifies as a statement of an authorized person or agent of an opposing party (the
City) under Federal Rule of Evidence 810(d)(2)(C) & (D). Second, even if that were not
so, the report is admissible under Rule 803(8)(A)(iii), just like the DOJ report, as the
report includes factual findings made by a public office resulting from a legally
authorized investigation. The fact that the task force included some non-governmental
personnel is beside the point; what matters is whether the task force was a public body
vested with authority to investigate the issues under consideration, which it was. And
finally, the Court overrules defendants' Rule 403 objection for the reasons described
with regard to the DOJ report.
Admission of the report is limited to sections covering the same subjects
discussed with regard to the DOJ report. And as with the DOJ report, the Court
reserves the right to make further orders regarding the specific portions of the Task
Force report that will be admitted in evidence.
25.

Rule 30(b)(6) witnesses

Defendants have moved to exclude testimony elicited during a deposition of the
City pursuant to Federal Rule of Civil Procedure 30(b)(6) concerning whether the City
took action in the wake of the Obrycka decision. Because the Court has excluded the
Obrycka matter under Rule 403, this topic is necessarily off-limits as well.
There is also apparently an issue regarding the admissibility of testimony
regarding sections of the City's collective bargaining agreement (CBA) with the police
union and how they affected the alleged code of silence. There may be more than one
basis for excluding this testimony, but the Court has already explained why evidence

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relating to an alleged code of silence is inadmissible in this case, and that also covers
testimony about the CBA that bears on the point.
26.

Testimony about Lorenzo Davis

This motion is unopposed and is therefore granted.
27.

References to "official policymakers"

The Court will determine as part of the process of preparing preliminary jury
instructions how the jury will be instructed on who is or who are official policymakers for
the City for purposes of the Monell claim. Any argument that is inconsistent with the
Court's eventual ruling on this point is precluded.
28.

Sharon Fairley and Dean Angelo video interviews

The comments during a video recorded interview of IPRA Chief Sharon Fairley
regarding previous deficiencies in the process of investigating complaints against police
officers are not hearsay. (Plaintiffs want to offer this in support of their Monell claims.)
At the time of the statements, Fairley was (and she still is) an agent of the City, and she
was speaking on matters within the scope of her agency. The Court sustains
defendants' objection under Federal Rule of Evidence 407 regarding measures that
Fairley and the City instituted to deal with the deficiencies, but this does not preclude
her from speaking about the deficiencies themselves. Fairley also has an adequate
foundation for speaking on these points; upon her appointment to the position with
IPRA, she undertook an intensive inquiry into the agency's practices, and this, too, was
done within the scope of her authority. Finally, the evidence is highly probative, and
defendants have failed to show that it has an unfairly prejudicial effect that substantially
outweighs its probative value.

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As with the DOJ and Task Force reports, the Court reserves the right to make
further orders regarding the specific portions of Fairley's statements that will be admitted
in evidence.
Plaintiffs do not respond to defendants' request to exclude a video interview of
then-police union chief Dean Angelo, so they are deemed to have conceded the point.
29.

Testimony regarding code of silence / Mayor Emanuel's comments

This motion is granted for the reasons previously discussed.
30.

Expert opinions of Stan Smith and Tim Longo
a.

Stan Smith

Stan Smith is an expert in statistical analysis; plaintiffs intend to call him to testify
in support of their Monell claims. Plaintiffs have established his qualifications to render
opinions regarding statistical analysis and comparison (including criticism of the
analysis by defendants' opposing expert Judith Roberts); he, like Roberts, needs no
expertise in police practices to do this. Defendants' criticisms regarding what Smith
reviewed go to the weight to be given his testimony and are an appropriate basis for
cross-examination but not for exclusion of the testimony. Plaintiffs have committed not
to offer testimony from Smith involving qualitative assessments of the Chicago Police
Department's practices or the effect of those practices (or the conclusions drawn from
his statistical analysis) on what officers might believe, points on which Smith has no
apparent expertise. See Pls.' Resp. to Defs.' Mots. In Limine at 60-61. With this
commitment in hand, the Court denies defendants' motion regarding Smith.
b.

Tim Longo

Defendants also seek to exclude certain opinions of Tim Longo, an expert on

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police practices offered in support of plaintiffs' Monell claims. There is nothing
inappropriate about Longo's reliance on an assumed set of facts provided by plaintiffs'
counsel, so long as those facts are consistent with evidence that will be admitted, which
plaintiffs have shown is the case here. See Williams v. Illinois, 567 U.S. 50, 57 (2012)
(plurality opinion) ("Under settled evidence law, an expert may express an opinion that
is based on facts that the expert assumes, but does not know, to be true. It is then up
to the party who calls the expert to introduce other evidence establishing the facts
assumed by the expert.").
The Court addresses later, in connection with plaintiffs' motion in limine
concerning defense expert Jeffrey Noble, the propriety of testimony regarding what
Illinois law provides regarding the investigation of a complaint about a police officer that
does not include an affidavit. That same ruling applies here.
With regard to Longo's supplemental report, because over five months remain
before trial, the Court will overrule defendants' motion to exclude opinions in that report
and thus will bypass the questions of whether they are actually new opinions and
whether defendants are unfairly prejudiced. See Fed. R. Civ. P. 37(c)(1). The Court
instead directs plaintiffs to produce Longo for a deposition on the matters in the
supplemental report. The deposition is to take place within the next 30 days at a
mutually convenient date and time; it will be limited to 90 minutes (though it is unlikely
that much is reasonably necessary); plaintiffs will be required to compensate Longo for
his preparation and deposition time; and they will also be required to pay twice the
amount of time that the attorney for the City of Chicago takes to question Longo during

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the deposition, 1 at that attorney's regular hourly rates. Payment must be tendered
within seven days after the taking of the deposition.
31.

Expert opinions of Dr. Niranjan Karnik

Defendants have moved to exclude four of the opinions offered by plaintiff's
expert witness Dr. Niranjan Karnik, a professor of psychiatry who specializes in child
psychiatric care. Karnik rendered opinions regarding the psychiatric condition of
Davianna Simmons and its causation. The four opinions that defendants ask to exclude
are:
•

the police failed to account for Davianna's needs in connection with their entry
and search of the home;

•

Davianna needs long-term, specialized treatment to address post-traumatic
stress disorder caused by defendants' actions;

•

consideration should be given to paying for the Simmons family to move
Davianna to a different neighborhood; and

•

defendants' expert Steven Hanus lacks the qualifications to render an opinion.

Plaintiffs do not intend to offer testimony from Dr. Karnik on the third and fourth points,
so only the first two are in dispute.
The Court overrules defendants' contention that Dr. Karnik should not be able to
discuss defendants' tactics during the entry and search because he has no expertise in
police practices. Plaintiffs are offering his testimony not to address the propriety of the
tactics that were used but rather to show how they affected Davianna and how different
tactics might have led to a different outcome for her. This is squarely within Dr. Karnik's

1

This accounts for reasonable preparation time.
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unquestionable expertise.
The Court also overrules defendants' contention that Dr. Karnik should be
precluded from addressing causation. Plaintiffs have adequately shown that Dr. Karnik
followed accepted and acceptable methodology. Defendants' contention that he did not
consider or did not adequately consider other factors that might have caused
Davianna's condition is a matter for cross-examination, not a basis for exclusion of his
testimony. In addition, as indicated in the previous section of this decision, there is
nothing in the least bit unacceptable in having Dr. Karnik assume a factual scenario as
the basis for his opinions, so long as it is adequately supported by the evidence, which it
is in this case. See Williams, 567 U.S. at 57.
C.

Plaintiffs' motions 7, 8, and 10 through 16
7.

Witnesses' prior arrests and convictions

The Court excludes evidence of witnesses' prior arrests that did not result in
convictions. See, e.g., Michelson v United States, 335 U.S. 469, 382 (1948); Nelson v.
City of Chicago, 810 F.3d 1061, 1067 (7th Cir. 2016); Barber v. City of Chicago, 725
F.3d 702, 709 (7th Cir. 2013).
The Court excludes Aretha Simmons's "conviction" for retail theft in 2012; under
Illinois law, supervision does not amount to a conviction. And if one assumes this is a
felony conviction, which is unclear, its probative value is minimal. See Fed. R. Evid.
403. The Court also excludes Dorothy Guider's 2000 conviction, which is more than ten
years old and thus presumptively inadmissible; defendants have not made the case for
admitting this conviction. See Fed. R. Evid. 609(b).

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8.

Defendants' commendations and awards

This evidence is presumptively inadmissible as evidence of good character.
However, in a trial, bifurcated or not, that includes the claims against the officer
defendants, if plaintiffs offer evidence of prior complaints and disciplinary actions
against the officer defendants, those defendants may offer evidence of commendations
and awards to rebut the possibility of an inference of bad character.
10.

Opinion testimony by Steven Hanus

Ruling on plaintiffs' motion to bar testimony by defense expert Steven Hanus is
deferred pending a Daubert hearing at which Dr. Hanus will appear and testify, to be
held on January 4, 2018. The Court has determined that a Daubert hearing is needed
to determine the admissibility of Dr. Hanus's opinions that Davianna Simmons does not
suffer from post-traumatic stress disorder and any opinion in which Dr. Hanus offers any
sort of diagnosis of Davianna or offers alternatives causes or possible causes of
Davianna's alleged symptoms.
11.

Opinion testimony by Jeffrey Noble

As the Court stated at the hearing on the motions in limine, there will be a
stipulation, judicial notice, and/or an instruction regarding the state of the law (statutory
and decisional) regarding the ability of police departments to investigate complaints not
supported by an affidavit. On this basis among others, defense expert Jeffrey Noble's
opinion regarding the state of the law on this point is excluded.
12.

Flaws in Chicago Police Department complaint file data

The Court overrules this objection; defendants are entitled to explore claimed
flaws in one of the databases of police complaint file data upon which plaintiff's experts

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relied.
13.

Opinion testimony by Judith Roberts

Defendants' expert Judith Roberts may render opinions involving statistical
analysis, including criticism of the methodology of plaintiffs' expert Stan Smith; she is
qualified to do so, and these opinions are relevant. Opinions that include assumptions
about police practices or other matters on which she lacks the requisite qualifications
are excluded. These include:
•

what actually constitutes "meaningful" discipline for a police officer (like Smith,
Roberts may give testimony based on hypothetical scenarios, assuming these
are included within her disclosures, but she may not independently opine on what
is meaningful);

•

the effectiveness of the Chicago Police Department's disciplinary policies and
practices, including the review process and command channel review;

•

reasons why complaints by African-American citizens may have a lower rate of
being sustained;

•

the practices of the New York Civilian Complaint Review Board and comments
on the DOJ report regarding the Chicago Police Department;

•

discussion about the likelihood of citizens to file complaints, and about whether
some alleged excessive force events are justified; and

•

how investigations are done, including how unnamed officers are identified and
what evidence is evaluated.

If the City requires further clarification regarding exactly what is and is not admissible
under the Court's ruling, it must seek clarification before trial.

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14, 15 & 16. Arguments regarding jurors as taxpayers and officers as
unable to pay a judgment; excluding non-party witnesses other than experts
These motions are unopposed and are granted.

Date: August 28, 2017

________________________________
MATTHEW F. KENNELLY
United States District Judge

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