IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

JACQUES RIVERA, 

Plaintiff, 

v. 

REYNALDO GUEVARA, et al. 

Defendants. 

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) 

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) 

Case No. 12 C 4428 

Judge Joan B. Gottschall 

Mag. Judge Mary M. Rowland 

JURY TRIAL DEMANDED 

DEFENDANT CITY OF CHICAGO’S RENEWED MOTION FOR JUDGMENT AS A 

MATTER OF LAW 

 
ii 

TABLE OF CONTENTS

INTRODUCTION......................................................................................................................... 1 

ARGUMENT ................................................................................................................................. 2 

I. POLICIES PERTAINING TO DETECTIVE DIVISION INVESTIGATIVE FILES.

 2 

A. Plaintiff failed to prove a constitutional violation. ...................................................... 2 

B. The City Cannot be Liable Because Detective McLaughlin Was Found Not Liable.

 4 

C. The City Does Not Have an Express Policy of Withholding Investigative Materials

 5 

D. Plaintiff Failed to Prove a Widespread Practice of Similar Brady Violations. ........ 6 

E. Plaintiff Failed to Prove an Unconstitutional Gap in the City’s Investigative File 

Policy. ..................................................................................................................................... 9 

F. Plaintiff Failed to Prove an Alleged Failure to Train Regarding Investigative Files

 11 

II. POLICIES REGARDING DOCUMENTING OF FILLER IDENTIFICATIONS. . 12 

III. POLICIES REGARDING THE GANG CRIMES UNIT. ....................................... 14 

 
iii 

CASES

Bd. of County Com'rs of Bryan County, Okl. v. Brown, 520 U.S. 397 (1997) ............................... 1 

Beaman v. Freesmeyer, 776 F.3d 500 (7th Cir. 2015) .................................................................... 7 

Calhoun v Ramsey, 408 F.3d 375 (2005). ....................................................................................... 6 

City of Canton, Ohio v. Harris, 489 U.S. 378 (1989) ..................................................................... 1 

City of Los Angeles v. Heller, 475 U.S. 796 (1986)........................................................................ 4 

Connick v. Thompson, 563 U.S. 51 (2011) ......................................................................... 6, 11, 12 

Elizarri v. Dart, __ F.3d.__ , 2018 WL 4041200 (7th Cir. Aug. 24, 2018) ................................... 4 

Estate of Novack v. County of Wood, 226 F.3d 525 (7th Cir. 2000) ............................................... 6 

Hahn v. Walsh, 762 F.3d 617 (7th Cir. 2014) ............................................................................... 10 

Hammond Group., Ltd. v. Spalding & Evenflo Cos., 69 F.3d 845 (7th Cir. 1995) ........................ 2 

Harris v. Kuba, 486 F.3d 101 (7th Cir. 2007) ................................................................................ 3 

Jones v. City of Chicago, 787 F.2d 200 (7th Cir. 1986) ................................................................. 6 

Kyles v. Whitley, 514 U.S. 419 (1995) .................................................................................... 2, 3, 9 

McNobala v, CTA, 10 F,3d 501 (7th Cir. 1993) ............................................................................. 6 

McTigue v. City of Chicago, 60 F.3d 381 (7th Cir. 1985) .............................................................. 5 

Miranda v. County of Lake, 17-1603, 2018 WL 3796482 (7th Cir. Aug. 10, 2018) .................... 11 

Monell v. Dep’t of Social Services, 436 U.S. 658 (1978) ............................................................... 1 

Sims v. Mulcahy, 902 F.2d 524 (7th Cir. 1990) .............................................................................. 6 

Strickler v. Greene, 527 U.S. 263 (1999) ....................................................................................... 4 

Swanigan v. City of Chicago, 881 F.3d 577 (7th Cir. 2018) .................................................... 4, 13 

Thomas v. Cook Cty. Sheriff's Dep't, 604 F.3d 293 (7th Cir. 2010) ............................................... 5 

United States v. Agurs, 427 U.S. 97 (1976) .................................................................................... 6 

United States v. Bagley, 473 U.S. 667 (1985) ................................................................................ 6 

United States v. O'Hara, 301 F.3d 563 (7th Cir. 2002) .................................................................. 3 

United States v. Warren, 454 F.3d 752 (7th Cir. 2006) .................................................................. 3 
Defendant City of Chicago (the “City”), by and through its undersigned attorneys, moves 

this Court to enter judgment in its favor as a matter of law pursuant to Rule 50(b) of the Federal 

Rules of Civil Procedure. In support of it motion, the City states: 

INTRODUCTION 

Plaintiff failed to present legally sufficient evidence for the jury to find liability against the 

City on his Monell claim. To find liability pursuant to Monell v. Dep’t of Social Services, 436 U.S. 

658 (1978), Plaintiff must have presented evidence that an official policy of the City caused a 

violation of his constitutional rights. Monell requires proof that a municipal decision both caused 

a constitutional injury and that the municipality is culpable. City of Canton, Ohio v. Harris, 489 

U.S. 378, 388–89 (1989). Thus, Plaintiff must have presented evidence that the City’s policy was 

the “moving force” behind the violation of his constitutional rights and the City acted with 

deliberate indifference. Bd. of County Com'rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 404 

(1997). When a municipality’s decision did not directly cause an injury, “rigorous standards of 

culpability and causation must be applied to ensure that the municipality is not held liable solely 

for the actions of its employee.” Id. at 405. Plaintiff’s theory of Monell liability concerned his 

right to due process and the City’s compliance with Brady v. Maryland in three subject areas: (1) 

the production of Detective Division investigative material, (2) documentation of lineups where a 

witness identified a filler as the perpetrator, and (3) production of documents created by the gang 

crimes unit. Plaintiff failed to present sufficient evidence to support any of these theories. 

At the close of Plaintiff’s case and before the case was submitted to the jury, the City 

moved for a directed verdict pursuant to Rule 50(a). (ECF 629). In ruling on the motion, the Court 

determined that Plaintiff’s theory of liability regarding documentation of lineups did not 

necessitate a Rule 50 analysis but denied the City’s remaining arguments. (ECF 676, p. 10). 
2 

Judgment was entered on August 3, 2018. As a result, the City renews its Rule 50 motion for 

judgment as a matter of law. Judgment can be entered as a matter of law if a party has been fully 

heard on an issue during a jury trial and there is no legally sufficient evidentiary basis for a 

reasonably jury to find for that party on an issue. Hammond Group., Ltd. v. Spalding & Evenflo 

Cos., 69 F.3d 845, 848 (7th Cir. 1995). Because no legally sufficient evidence supports the jury’s 

verdict on any of Plaintiff’s theories of Monell liability, this motion should be granted. 

ARGUMENT 

I. POLICIES PERTAINING TO DETECTIVE DIVISION INVESTIGATIVE 

FILES. 

A. Plaintiff failed to prove a constitutional violation. 

Plaintiff alleged the City’s policies caused the violation of his right due process in violation 

of Brady v. Maryland. To prove a Brady violation, Plaintiff must have presented evidence that the 

evidence at issue was either exculpatory or impeaching, the evidence was suppressed by the 

government, and there was a reasonable probability that, had the evidence been disclosed, the 

result of the criminal proceeding would have been different. Kyles v. Whitley, 514 U.S. 419, 433-

34 (1995). Consistent with the jury’s verdict finding in favor of Defendant McLaughlin on this 

claim, Plaintiff’s evidence was insufficient to establish that any material, exculpatory evidence 

maintained in the Valentin Detective Division Investigative File was withheld from him. 

The only evidence in the file that Plaintiff claimed was exculpatory was the (1) the criminal 

history report indicating someone requested Plaintiff’s criminal history on August 27, 1988; (2) 

Defendant McLaughlin’s general progress report (GPR) that indicated Orlando Lopez told her that 

he was “by the store” when he saw the shooting; and (3) the investigative file inventory sheet that 

seemed to indicate that McLaughlin prepared two additional GPRs that are now missing. (See, 

Ex. A, Trial Transcript (Wadas) at 1405-12). None of this evidence is material or exculpatory. As 
3 

for the date on the criminal history, Orlando Lopez testified that he identified Plaintiff on August 

27, 1988. (Ex. A, (Lopez), 3933-3935). That explains why Plaintiff’s criminal history was 

requested. Next, Plaintiff’s defense counsel admitted that the statement “by the store” might not 

have added much to attack Lopez’s credibility. (Ex. A, (Wadas), at 1464-70). And, finally, there 

is no evidence that if additional GPRs existed, what, if anything, they reported, let alone if they 

documented material, exculpatory evidence. See United States v. Warren, 454 F.3d 752, 759 (7th 

Cir. 2006) (without pointing to any specific exculpatory evidence, Brady claim does not “get off 

the ground”). 

Further, evidence is only suppressed pursuant to Brady if it could not have been obtained 

through the exercise of reasonable diligence. United States v. O'Hara, 301 F.3d 563, 569 (7th Cir. 

2002); Harris v. Kuba, 486 F.3d 101, 1015 (7th Cir. 2007). Plaintiff failed to present evidence to 

establish this element. For instance, his criminal defense attorney admitted that he knew that CPD 

maintained GPRs and investigative file inventories. (Ex. A (Wadas), at 1581-1583). If the 

discovery he obtained from the prosecutor during the criminal prosecution did not include those 

documents, he could have taken steps to discover they existed, including, for example, issuing a 

subpoena to CPD and obtaining the Court’s assistance in enforcing it. He chose not to do that. As 

such, Plaintiff did not establish that the alleged exculpatory evidence was suppressed. In addition, 

the prosecutor has an affirmative duty to discover all potential Brady material known only to the 

police. Kyles, 514 U.S. at 437. Plaintiff did not present any evidence that the trial prosecutor in 

this case requested the Investigative File but that CPD did something to conceal it from him. 

Therefore, even if Plaintiff established due diligence in obtaining the file, Plaintiff failed to prove 

that CPD is to blame for not providing it to him. 
4 

B. The City Cannot be Liable Because Detective McLaughlin Was Found Not 

Liable. 

 The jury could not have found the City liable for any of its alleged Brady-compliance

policies, as they pertain to detectives, because the sole Defendant Detective in this case, Defendant 

McLaughlin, was found not liable. Each piece of evidence that Plaintiff claimed Defendants 

withheld in the Valentin Investigative File was either created by, or in the possession, custody, or 

control of Defendant McLaughlin. Yet, the jury found that Defendant McLaughlin did not 

withhold or fabricate evidence in violation of Plaintiff’s rights to due process. As such, the City’s 

Brady-compliance policies as to the production of detective investigative material are irrelevant. 

See City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (concluding if no individual violated 

the plaintiff’s constitutional rights, then the municipalities policies are “quite beside the point”); 

Elizarri v. Dart, __ F.3d.__ , 2018 WL 4041200, at *2 (7th Cir. Aug. 24, 2018) (holding 

organizational liability pursuant to Monell does not exist in the absence of an underlying 

constitutional violation by one of its employees); Swanigan v. City of Chicago, 881 F.3d 577, 582 

(7th Cir. 2018) (“holding the City cannot be liable based on the actions of one of its officers when 

in fact the jury has concluded that the officer inflicted no harm). 

 Further, Plaintiff’s Investigative File production theory cannot stand independently of 

individual liability. As explained, if material, exculpatory evidence existed in the Valentin 

Investigative File, then Defendant McLaughlin possessed it and had a duty to produce it to the 

prosecutor. Strickler v. Greene, 527 U.S. 263, 288 (1999) (stating a Brady violation occurs when 

material exculpatory evidence is withheld irrespective of good or bath faith). The jury determined, 

however, that Defendant McLaughlin did not violate Plaintiff’s constitutional rights. Therefore, 

any finding that the City had a policy of withholding detective investigative material creates an 

inconsistent verdict. For that reason, the City cannot be held liable for any of its alleged policies 
5 

pertaining to the disclosure of the detective investigative material. Thomas v. Cook Cty. Sheriff's 

Dep't, 604 F.3d 293, 305 (7th Cir. 2010) (observing that a municipality cannot be found liable 

under Monell when “such a finding would create an inconsistent verdict”) (emphasis omitted). 

C. The City Does Not Have an Express Policy of Withholding Investigative 

Materials. 

Even if the jury’s verdict was not inconsistent with Plaintiff’s theory of Monell liability, 

Plaintiff nevertheless failed to establish any alleged policy caused a deprivation of his 

constitutional rights. 

To start, Plaintiff failed to prove an express policy theory of Monell liability. To prevail 

on an express policy theory, Plaintiff must have presented evidence that an express policy, when 

enforced, caused him a constitutional deprivation. McTigue v. City of Chicago, 60 F.3d 381, 382 

(7th Cir. 1985). The express policy at issue in this case was Detective Division Special Order 

(“DDSO”) 86-3.1

 There is nothing in the order that calls for the concealment of exculpatory 

evidence. To the contrary, it specifically requires the preservation of all pertinent investigative 

material to protect the due process rights of the accused. Further, James Hickey testified that CPD 

overhauled its record-keeping policies in the early 1980’s, including introducing new forms like 

GPRs and investigative file inventory sheet, specifically with the purpose of preserving all 

investigative material. (Ex. A (Hickey), at 3222-31). Therefore, Plaintiff offered no evidence for 

which the jury could find the City liable on an express policy theory. 

 

1 DDSO 86-3 was the order in effect at the time of the Valentin investigation. Much of the testimony at 

trial concerned DDSO 83-1, which marked significant changes CPD put in place after the George Jones 

case, including institutionalizing the use of Investigative Files and GPRs. DDSO 86-3 is substantially 

similar to 83-1. 
6 

D. Plaintiff Failed to Prove a Widespread Practice of Similar Brady Violations. 

 Plaintiff’s implicit policy theories also fail. First, to prove Monell liability on a practice or 

custom theory, Plaintiff must have presented evidence of widespread, enduring practice that 

violated constitutional rights in a systematic manner. McNobala v, CTA, 10 F,3d 501, 511 (7th 

Cir. 1993). Isolated acts committed by non-policymaking officers do not amount to a “custom” as 

contemplated by Monell. Rather, Plaintiff must prove a habitual practice of a course of action that 

“characteristically is repeated under like circumstances”. Sims v. Mulcahy, 902 F.2d 524, 542 (7th 

Cir. 1990) (quoting Jones v. City of Chicago, 787 F.2d 200, 2004 (7th Cir. 1986)). It is the “series 

of unconstitutional acts” that is necessary to demonstrate indifference to the deficiencies in the 

policies. Estate of Novack v. County of Wood, 226 F.3d 525, 531 (7th Cir. 2000). Further, these 

violations must arise in “similar” circumstances – otherwise, a municipality lacks notice that the 

policy deficiencies “will cause violations of constitutional rights”. Connick v. Thompson, 563 U.S. 

51, 62 (2011). Plaintiff must have presented evidence to prove that a “true municipal policy at 

issue, not a random event.” Calhoun v Ramsey, 408 F.3d 375, 380 (2005). 

Here, setting aside Plaintiff’s failure to prove that material, exculpatory evidence contained 

in the Valentin Investigative File was withheld from him, he needed to present evidence of a series 

of “similar Brady violations” to establish an implicit policy. Put another way, Plaintiff must have 

presented evidence that, on similar facts, alleged exculpatory evidence was withheld, and that, in 

each case, there was “a reasonable probability that, had the evidence been disclosed to the defense, 

the result of the proceeding would have been different,” United States v. Bagley, 473 U.S. 667, 

682 (1985), after considering that evidence “in the context of the entire record” of that proceeding, 

United States v. Agurs, 427 U.S. 97, 112 (1976). Plaintiff elicited evidence from his expert, about 
7 

investigative material in four other criminal cases – Fields, Robinson, Kluppelberg, and Johnson 

– but failed to establish a Brady violation occurred in any of them. 

For Robinson, Plaintiff presented evidence of one report that his expert determined related 

to an alternative suspect that was not disclosed to the criminal defense attorney but should have 

been. (Ex. A (Brasfield), at 2252-54). Yet, Plaintiff did not elicit any evidence that the information 

contained in the report was not provided to the criminal defendant, nor did Plaintiff elicit any 

evidence that it would have had any material effect on the case considering the other evidence 

against that person. Even accepting Plaintiff’s contention that the information was not disclosed, 

without evidence of the criminal proceedings themselves, the jury could not determine whether 

any undisclosed material effected the result. For instance, Plaintiff did not even establish that 

Robinson was convicted. As such, Plaintiff did not establish any constitutional violation in the 

Robinson case. 

The same is true for Fields. Plaintiff offered three reports containing information about a 

supposed alternative suspect that he alleged were not provided to the criminal defense attorney. 

(Ex. A (Brasfield), at 2255-61). Yet, Plaintiff did not demonstrate that information contained in 

the reports was not disclosed to the prosecutor. Disclosing the information to the prosecutor would 

discharge CPD’s Brady obligations. Beaman v. Freesmeyer, 776 F.3d 500, 512 (7th Cir. 2015). 

Nor did he establish that information was not provided to the criminal defense attorney in some 

other form or establish that the information was material, considering the other evidence against 

Fields. Plaintiff also presented a criminal history report that his expert alleged was not disclosed 

to Fields, but, for that report, Plaintiff failed to even elicit evidence that it was exculpatory. (Ex. 

A (Brasfield), at 2262-63). Thus, Plaintiff did not establish any constitutional violation in the 

Fields case. 
8 

Nor did Plaintiff establish a constitutional violation in Kluppelberg or Johnson. In both 

cases, Plaintiff failed to present any evidence that the document he claimed was not provided to 

the criminal defendant, or that the information it contained was information that was not otherwise 

provided to the prosecutor and/or the criminal defense attorney in some other form. (Ex. A 

(Brasfield), at 2264-71). Nor did Plaintiff establish that any information in the document was 

material in the context of the proceedings. 

Plaintiff addressed documents from a few other cases in his examination of the City’s 

expert, but, again, did not elicit any evidence that any document contained information that was 

not provided to the prosecutor or the defendant. (Ex. A (Murray), at 3873-84). Nor did he establish 

that any information contained in any document he alleged was withheld would have impacted the 

outcome of any case. 

On this score, Plaintiff’s expert’s file comparison analysis is also insufficient to establish 

a pattern of constitutional violations. For all the reasons stated in the City’s briefing on Summary 

Judgment (ECF 306, 337) and its Motion in Limine No. 6 (ECF 424, 491), Plaintiff’s expert, 

Michael Brasfield, should not have been permitted to testify. His file comparison opinions failed 

to meet the Daubert standard for expert testimony and were not relevant to the issues tried. But, 

even so, his testimony was insufficient to establish the requisite pattern of constitutional violations 

necessary to establish Monell liability. 

First, Brasfield’s analysis could not prove that any piece of evidence was withheld. The 

most he could say was that a document within CPD’s possession did not appear in a criminal 

defense attorney’s file thirty years after the fact. Plaintiff did not offer any evidence that 

information contained in the document was not provided to the criminal defendant in some other 

form. Nor did Plaintiff establish that the document was not provided to the prosecutor in criminal 
9 

discovery. This is fatal to his claim considering a police officer’s Brady obligations are discharged 

when evidence is provided to a prosecutor, Beaman, 776 F.3d at 512, and the prosecutor has a duty 

to discover any Brady material known only to the police, Kyles, 514 U.S. at 437 (1995). Thus, 

even if the jury accepted Plaintiff’s premise that the documents Brasfield identified as “missing” 

were not produced in criminal discovery, Plaitniff failed to present evidence that CPD is to blame. 

Even considering that Brasfield reviewed six prosecutor files, Plaintiff never established that any 

“missing” document was exculpatory and material. Brasfield could only speculate that some 

documents might be important to the criminal case. (Ex. A (Brasfield), at, 263-64, 2272). Coupled 

with the uncertainty of whether the evidence was ultimately disclosed, Brasfield’s testimony is 

pure speculation, which is insufficient to establish liability. 

What’s more, even if Plaintiff’s evidence was sufficient to establish a pattern of similar 

constitutional violations (it was not), Plaintiff failed to present any evidence that the City’s 

policymakers had any knowledge of the alleged practice Plaintiff described. Even accepting 

Plaintiff’s theory of production, Plaintiff presented no evidence that the City’s policymakers knew 

that any random piece of paper that may or may not have any importance was not produced to any 

criminal defendant. For these reasons, this theory of Monell liability fails. 

E. Plaintiff Failed to Prove an Unconstitutional Gap in the City’s Investigative File 

Policy. 

 Plaintiff also claimed the City’s policies as to Detective Division Investigative Files were 

deficient because they did not address certain concerns. According to Plaintiff, the policies were 

deficient because they allowed for the maintenance of two files (Records Division Files and 

Investigative Files) for each homicide investigation. Secondly, he claimed the policies were 

inadequate because CPD did not test its compliance by ensuring the completion of an audit. He 

also claimed the written policy did not specifically state detectives must disclose Investigative 
10 

Files to criminal defendants. Again, these theories fail because Plaintiff did not present evidence 

of a pattern of similar constitutional violations to put the City on notice that its policies were 

deficient necessary to establish an implicit policy. Hahn v. Walsh, 762 F.3d 617, 636–37 (7th Cir. 

2014). And, in any event, Plaintiff failed to establish that any of these alleged deficiencies resulted 

in the systematic suppression of material, exculpatory evidence. 

 As to maintenance of two files, Plaintiff’s expert testified that the best practice would be 

to have one centralized file, such that there would be one “central repository” for all documents 

pertaining to an investigation. Yet, Plaintiff did not establish that such a process would have been 

feasible for a police department the size of Chicago’s. Further, Plaintiff did not establish that any 

document in a Records Division File did not also appear in the corresponding Investigative File. 

Even more, Plaintiff’s expert admitted that every criminal defense attorney file he reviewed 

contained documents that were found exclusively in the Investigative File for that case, thereby 

undercutting the theory that CPD did not produce Investigative Files. (Ex. A (Brasfield), at 2443, 

2296). Essentially, Plaintiff did not offer any evidence to dispute that the Investigative File is the 

central repository for all investigative material for each investigation, as his expert suggested was 

best practice. 

 Regarding audits, Plaintiff failed to prove that CPD did not actually conduct audits of its 

record keeping policies. Plaintiff’s expert claimed the evidence he reviewed indicated that CPD 

did not conduct them, but, quite obviously, Plaintiff’s expert did not have personal knowledge 

about whether audits were conducted or not, and Plaintiff failed to elicit what evidence his expert 

relied on to make that determination. In contrast, Hickey testified that exempt commanding 

officers were required to completed audits and that he completed them himself. (Ex. A (Hickey), 

at., 3318). 
11 

 Finally, Plaintiff’s claim that the written orders did not explicitly instruct detectives to 

disclose Investigative Files to criminal defendants is misleading, considering the actual words of 

the order stress the importance of preserving all pertinent investigative material, whether 

inculpatory or exculpatory, to protect the due process rights of the accused. (Ex. A (Hickey) at 

3230-31). Nevertheless, whether the written policy spells out the expectation in black in white 

does not define what the actual practice is. Plaintiff offered no evidence to suggest that anyone in 

CPD believed that Investigative Files would not be disclosed in criminal cases. And, again, 

Plaintiff offered no evidence that Investigative Files were withheld in their entirety. 

 Even accepting these alleged deficiencies, Plaintiff did not present any evidence that any 

of them resulted in the systematic suppression of material, exculpatory evidence. For all the 

reasons explained above, he did not link any alleged gap in policy to any constitutional violation. 

Thus, there is no basis on which the jury could infer that curing any of these alleged deficiencies 

would have made a difference in this case. See Miranda v. County of Lake, 17-1603, 2018 WL 

3796482, at *4 (7th Cir. Aug. 10, 2018) (Monell liability fails without evidence of causation) 

F. Plaintiff Failed to Prove an Alleged Failure to Train Regarding Investigative 

Files. 

 Lastly, Plaintiff claimed the City’s Investitive File policies were deficient because CPD 

did not adequately train its detectives when implementing the changes in policy described in 

Detective Division Special Order 83-1. To be clear, Plaintiff’s claim is not that there was a 

complete failure to train, but that it was not enough. According to Plaintiff’s expert, the previous 

practices regarding the creation and maintenance were so “entrenched” that the City should have 

spent more time training detectives on the change in policy. Relatedly, Plaintiff claimed the 

Subpoena Service Unit was not adequately trained to gather documents and make copies. 
12 

This claim fails, as well, because Plaintiff did not establish a pattern of similar 

constitutional violations to infer deliberate indifference. See Connick, supra. Further, Defendant 

McLaughlin testified about the training she received regarding 83-1 and explained that it was quite 

comprehensive. (Ex. A (McLaughlin), at 876-77). Further, Hickey testified the Subpoena Service 

Unit received on-the-job-training because it was a small unit with little turn-over. (Ex. A (Hickey), 

at 3233). Plaintiff offered nothing to contradict this testimony besides his expert’s bald conclusion 

that the training was not good enough, which he presented without any methodological reasoning 

or analysis, leaving nothing for which the jury could use to assess the validity of his opinion. In 

addition, CPD’s training of the members of the Subpoena Service Unit is particularly irrelevant, 

considering Plaitniff did not elicit evidence that he issued a subpoena in his case. Even so, the 

theory that the CPD’s training could have been better or more complete is specifically foreclosed 

by the Supreme Court’s decision in Connick. Indeed, as the Court reasoned, such a claim could 

be made in “virtually every instance.” Connick, 563 U.S. at 68. Monell liability requires a much 

more stringent standard, and, therefore, Plaintiff’s evidence falls well short. 

II. POLICIES REGARDING DOCUMENTING OF FILLER 

IDENTIFICATIONS. 

To prove his claim that the City is liable pursuant to Monell because of its policies regarding 

the documentation of lineups, Plaintiff presented the expert testimony of Dr. Gary Wells. In sum, 

Wells testified that CPD did not document lineups where a witness identified a filler, as opposed 

to the suspect. According to Wells, those lineups were either mislabeled as something else, such 

as “negative” or “witness failed to identify suspect”, or a report for the lineup would not be created 

at all. Besides asking questions to the officers who testified about their personal practices related 

to lineups, Plaintiff presented no evidence about the City’s practices besides the testimony of Dr. 

Wells. In ruling on the City’s Rule 50(a) Motion, this Court concluded that the jury instructions 
13 

did not embrace the practice described by Wells, making a Rule 50 analysis unnecessary. The 

City agrees and believes the Court’s ruling makes a Rule 50(b) analysis moot. Nevertheless, for 

purposes of preservation, the City briefly reiterates its arguments here. 

For one, Plaintiff did not prove an underlying constitutional violation in his case. Orlando 

Lopez never testified that he identified anyone other than Orlando Lopez from any lineup. Further, 

Plaintiff alleged that Defendant McLaughlin conducted the so-called first lineup on August 31, 

and fabricated the report documenting the lineup did not occur. The jury, however, found 

Defendant McLaughlin not liable for fabricating or withholding evidence. Nor did Plaintiff 

present any evidence that any of the other defendants conducted the August 31 lineup or were 

responsible for fabricating the report. If there is no finding that any officer committed any 

constitutional violation, then Monell liability cannot stand. See Swanigan, supra. 

As to the policy, the only theory of liability for which Plaintiff presented evidence was his 

theory that the City had a pattern and practice of failing to document filler identifications. As this 

Court concluded, the practice Wells described did not amount to a pattern of concealing material, 

exculpatory evidence. While Wells opined that if a witness identified a filler that evidence could 

be exculpatory, he did not offer any testimony that any failure to specifically document that fact 

caused a constitutional violation in any case. For instance, Plaintiff did not present any evidence 

of any instance where detectives allegedly failed to document a filler and that witness was used in 

a subsequent criminal proceeding or even that any suspect was criminally charged. Without that 

evidence, Plaintiff failed to support his theory with anything more than speculation. As with 

Plaintiff’s other theories of Monell liability, this is fatal to his claim. Without a series of similar 

constitutional violations, for which the City had knowledge, Plaintiff failed to prove that the City 

was deliberately indifferent to the issue. 
14 

What’s more, for the reasons stated in the City’s briefing on Summary Judgment (ECF 

306, 337) and its Motion in Limine No. 7 (ECF 387, 500), Wells should not have been permitted 

to testify. As explained in those pleadings, his methodology did not satisfy the Daubert standard 

of admissibility, and, Plaintiff offered nothing to link the practice Wells described to the facts of 

this case. For instance, there is no lineup report in the Valentin investigation that is mislabeled 

“negative”, as Wells suggested. Nor is there no documentation of the so-called “first lineup”. To 

the contrary, there was a report; it documents the fact that the lineup did not actually happen, which 

Plaintiff argued Defendant McLaughlin fabricated. (Ex. A (McLaughlin), at 624-27; Exhibit B, 

DX 1.13). As such, Wells’ testimony is irrelevant, and Plaintiff failed to present sufficient 

evidence to establish Monell liability on this theory. 

III. POLICIES REGARDING THE GANG CRIMES UNIT. 

In addition to his claim that the City’s Investigative File policies were deficient in how they 

applied to detectives, Plaintiff also claimed the City’s record keeping policies were deficient in 

how they applied to the gang crimes unit. Plaintiff claimed the City’s policies were deficient 

because they did not require the gang crimes unit to preserve their notes, like CPD required of the 

detectives and did not require the routine disclosure of gang crimes daily activity reports. To that 

end, Plaintiff elicited evidence that gang crimes specialists would sometimes take notes, meaning 

they might occasionally write something down during their workday. Plaintiff also elicited 

evidence that if a gang crimes specialist took notes pertaining to a homicide investigation that 

piece of paper would not necessarily be preserved in the Detective Division Investigative File, like 

a GPR would be preserved in the file. According to Plaintiff, that note then might not be produced 

to a criminal defendant during discovery. In addition, according to Plaintiff, a gang crimes 

specialist might write down something he did one day on an activity report that could pertain to a 
15 

homicide investigation. In that case, Plaintiff argued, the report would not be provided to a 

criminal defendant if CPD did not routinely produce them during discovery. Neither of these 

theories is sufficient to establish Monell liability. 

First, as with all the other implicit theories of liability, Plaintiff needed to present evidence 

of a pattern of constitutional violations resulting from the alleged policy for which the City’s 

policymakers were made aware. Plaintiff did not offer any evidence at all about the failure of gang 

crimes documents to be disclosed in any case, let alone that the failure amounted to a Brady 

violation that the City’s policymakers knew about and were deliberately indifferent. To the 

contrary, the City’s evidence established that if gang crimes specialists obtained information 

pertinent to a homicide investigation, they would provide that information to the Detective 

Division, such that the information could be included in the Detective Division Investigative File 

and produced to the criminal defendant in discovery. Plaintiff offered no evidence to dispute that, 

and therefore, did not establish deliberate indifference. 

More to the point, however, Plaintiff did not present evidence of any note or document 

prepared by gang crimes that was withheld in this case. While Defendants Guevara, Mingey, and 

Gawrys were found liable on Plaintiff’s due process claim, there was no evidence for which the 

jury could find them liable for failing to disclose some evidence documented in notes or daily 

activity reports. While Plaintiff’s counsel insinuated that such documentation might have existed, 

he did not actually present any evidence of it. Instead, Plaintiff asked the jury to speculate that 

either Defendants Guevara, Gawrys, or Mingey wrote down information relevant to this case, on 

either a note or a daily activity report, that the note or report contained exculpatory evidence, and 

that the information was material. He then asked the jury to speculate that the note or report was 

not produced to Plaintiff because of the City’s policies and that the City had knowledge and 
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consciously disregarded that such a constitutional violation would occur. Quite obviously, 

Plaintiff did not prove that any gang crimes document containing exculpatory evidence existed 

that should have been produced. Without that, Plaintiff cannot establish a constitutional violation 

on that theory, and the City’s policies are irrelevant. 

Relatedly, Plaintiff criticized the City’s training of gang crimes specialists with respect to 

Brady. Yet, Plaintiff did not elicit any evidence of how or why the training was deficient. For 

instance, the City’s Rule 30(b)(6) witness testified that gang crimes specialists did receive training 

in the patrol division. (Ex. A (Spratte), at 3396-3398). He also testified they knew the importance 

of preserving and disclosing exculpatory evidence. Id. Further, Plaintiff failed to present any 

evidence of a pattern of constitutional violations of which the City was made aware, such that the 

policymakers would have known that the training was deficient. Indeed, just like Plaintiff’s claim 

regarding detectives, any allegation that the training could have been better is not sufficient to 

establish Monell liability in the Brady context. 

Wherefore, Defendant City of Chicago, by and through its undersigned attorneys, moves 

this Court to enter judgment in its favor as a matter of law pursuant to Rule 50(b) of the Federal 

Rules of Civil Procedure. 

Dated: August 31, 2018 Respectfully submitted, 

 City of Chicago 

Eileen E. Rosen 

Catherine M. Barber 

Theresa Berousek Carney 

ROCK FUSCO & CONNELLY, LLC 

321 N. Clark Street, Suite 2200 

Chicago, Illinois 60654 

(312) 494-1000 

erosen@rfclaw.com

By: /s/ Eileen E. Rosen 

One of its attorneys