David v. Nettles

Filing 130

MEMORANDUM Opinion and Order Signed by the Honorable Ronald A. Guzman on 4/29/2016: Defendants' motion in limine no. 7 115 is provisionally granted. [For further details see memorandum opinion and order.] Mailed notice(is, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
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)
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Plaintiff,
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v.
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ILLINOIS STATE POLICE OFFICER )
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MARCUS NETTLES, et al.,
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Defendants.
JOSEPH DAVID,

No. 15 C 1645
Judge Ronald A. Guzmán

MEMORANDUM OPINION AND ORDER
For the reasons stated below, Defendants’ motion in limine no. 7 [115] is provisionally
granted.
STATEMENT
In their motion in limine number 7, Defendants seek to offer as an exhibit Cook County
Sheriff’s Courtroom Deputy Niezabitowski’s Offense/Incident Report, which contains a
narrative of her observations of the altercation between plaintiff and defendant Nettles in one of
the courtrooms to which she was assigned. The report narrative states as follows:
In summary, on the above date and approximate time, R/D
Niezabitowski #11090, was assigned to courtrooms 401 and 403
of the Daley Center. R/D was in courtroom 403, when the clerk
from 401 notified R/D that above named subject was being
verbally abusive to a State Trooper, later known as Marcus
Nettles#6359 inside the courtroom. R/D arrived to courtroom
401, at which time subject was sitting in the courtroom, while
Trooper Nettles was outside in the hallway. Approximately fifteen
minutes later, subject[‘]s case was heard in front of Judge
Marsalek #2063. Upon completion of the case, and being found
guilty by the judge the said defendant proceeded to walk away
from the bench, and exit the courtroom. Upon exiting the
courtroom subject stated to Trooper Nettles “Nigger, karma is a
bitch!” in a provoking manner. At this time, Trooper Nettles
advised the subject to leave the courtroom, and proceeded to
physically escort the defendant out of the courtroom.
(Def.’s Mot., Ex. A, Dkt. # 115, PageID #:798.)

Records of a Regularly-Conducted Activity Analysis. For Deputy Sheriff Niezabitowski’s
Incident Report to be admitted as a business record Fed. R. Evid. 803(6), Defendants must
establish the following:
1.) That the record was made at or near the time of the act or event. The report is
dated 18 June 14 at 1520 hours (3:20 PM). The event occurred on June 18, 2014, according to
the plaintiff’s complaint. Therefore, this report was made at or near the time of the incident.
2.) That the record was made by, or from information transmitted by, someone with
actual knowledge. The narrative in the report would appear to meet this requirement as well.
The information is transmitted by Deputy Sheriff Niezabitowski , a Cook County Deputy Sheriff,
who will likely be shown had a duty to prepare the report accurately and had first-hand
knowledge of the activity described therein. All persons furnishing and recording information
must be under a duty to do so. 7 Handbook of Fed. Evid. § 803:6 (7th ed.). If any participant
does not meet this requirement, another hearsay exception must apply to that link of the chain.
Datamatic Servs. v. United States, 909 F.2d 1029, 1032-1033 (7th Cir. 1990) (letter from witness
in charge of company was prepared in the normal course of business, but because sources of
information in letter were outsiders with respect to business, it was inadmissible as a business
record).
3.) That the record was kept in the course of a regularly-conducted activity of a
business organization, occupation, or calling, whether or not for profit. This requirement is
also likely to be met. It is part of the regularly-conducted activity of the Cook County Sheriff’s
Department to secure Cook County courtrooms and the Cook County Sheriff’s Department is a
business/organization for purposes of the 803(6) exception to the hearsay rule.
4.) That making this record was a regular practice of that business activity. This
requirement can be met through the testimony of any witness who is familiar with the
recordkeeping practices of the Cook County Sheriff’s Department and can testify that it is the
regular practice of Deputy Sheriffs to prepare and file incident reports.
5.) Then neither the source of information nor the method or circumstances of
preparation indicate a lack of trustworthiness. The information is being provided by a Cook
County Deputy Sheriff who is not involved as a litigant in this case, and is not shown to have any
personal interest in the outcome of this case. Plaintiff has failed to articulate any reason for
believing that either the source of information or the method or circumstances of preparation
indicate a lack of trustworthiness.
Accordingly, if the proper foundation is laid, the document may be admitted as a record
of a regularly-conducted business activity under Fed. R. Evid. 803(6).
Public Records Exception Analysis. Fed. R. Evid. 803(8) provides that:
The following are not excluded by the rule against hearsay, regardless of whether the
declarant is available as a witness:
(8) Public Records. A record or statement of a public office if:
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(A) it sets out:
(i) the office's activities;
(ii) a matter observed while under a legal duty to report, but not including, in a
criminal case, a matter observed by law-enforcement personnel; or
(iii) in a civil case or against the government in a criminal case, factual findings
from a legally authorized investigation; and
(B) the opponent does not show that the source of information or other
circumstances indicate a lack of trustworthiness.
The exhibit may be admitted under this exception to the hearsay rule as well. The
foundation would have to include a showing that the report is a statement or record of a public
office – the Cook County Sheriff - which describes the reporting officer’s firsthand observations
of the occurrence at issue made while the officer was under a legal duty to report. There is little
or no evaluation or opinion in the narrative portion of the report. The reporting deputy’s legal
duty to file such a report must also be established.
For these reasons, Defendants’ motion in limine number 7 is provisionally granted.

Date: April 29, 2016

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Ronald A. Guzmán
United States District Judge

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