IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

BRIAN JOHNSON, 

Plaintiff, 

 v. 

DOUGLAS NICHOLS, et al.

Defendants. 

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No. 12 C 5325 

Judge John J. Tharp, Jr. 

MEMORANDUM OPINION AND ORDER 

The defendants argue that the plaintiff, Brian Johnson, failed to preserve video evidence 

critical to their defenses, and they move for sanctions in the form of an adverse inference 

instruction telling the jury that it can assume that the video would have been unfavorable to 

Johnson, or in the alternative, for an instruction simply notifying the jury that Johnson had a duty 

to preserve the video footage but failed to do so. For the reasons explained below, the 

defendants’ motion is granted. If the evidence at trial comports with the evidence the defendants 

have referenced in their briefs, the Court will give the jury an adverse inference instruction. 

BACKGROUND 

In his complaint, Johnson alleges that the defendants, who are each Chicago police 

officers, falsely arrested him and used excessive force against him in violation of 42 U.S.C. § 

1983. According to the complaint and Johnson’s response to the defendants’ motion, Johnson 

was the security guard on duty in a residential building in Chicago when the defendants arrived 

to execute a search warrant in the building. The target of the search warrant was an apartment on 

the first floor of the building that was occupied by Johnson’s brother, Preston. When the 

defendants arrived at the building, however, they falsely told Johnson that they were responding 
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to a report of a domestic disturbance on the third floor, and they asked him to open the building’s 

security gate to allow them to enter, which he did. After the defendants entered the building, 

Johnson led them up the stairs. At that point, according to the defendants, in order “[t]o secure 

the scene, Officer Heard [a defendant in this lawsuit] placed [Johnson] against the wall in the 

stairwell and handcuffed him.” Def. Mot. (Dkt. 28) at 2. The defendants then realized that they 

needed to pass through a locked door on the first floor to reach the apartment that was the target 

of their search, and they asked Johnson to unlock the door. Here, the parties’ stories diverge. 

Johnson claims that he was confused by the request because the officers had initially told him 

that they needed access to the third floor, and also because he was obviously unable to unlock the 

door to the first floor while wearing handcuffs. The defendants allege that Johnson willfully 

refused to open the door in order to obstruct them and that he pulled his keys away when one of 

the defendants, Officer Nichols, reached out to grab them. In any event, the parties agree that 

Officer Nichols then placed Johnson under arrest for obstructing a police officer and removed 

him from the building to a police vehicle waiting outside. 

In their depositions, Johnson and his brother, Preston, both testified that there are 

working video cameras in the building that should have captured footage of the defendants’ 

actions. The deposition testimony indicates that there are at least three video cameras that would 

have recorded Johnson’s interactions with the defendants: one in the stairwell where Johnson 

was handcuffed by Officer Heard, one in the entry area where Officer Nichols arrested Johnson, 

and one at the building’s entrance where the defendants came in and where Johnson was escorted 

out after his arrest. The defendants requested the footage from all three cameras, but Johnson 
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produced only the footage from the building’s entrance, which does not show Johnson being 

handcuffed or arrested.1

 

Johnson admitted in his deposition that he was in charge of the video surveillance system 

that was installed in the building. He further testified that the building’s video footage is 

automatically deleted after a certain period of time unless he or someone else in the building 

takes action to maintain it. Johnson was unable to say exactly how long the video footage is 

automatically kept before being deleted, but he estimated video footage was available for 

between three days and a week. The defendants asked Johnson whether he still had the video 

from the day of the incident, but he said that he did not because the footage was “probably 

deleted.” The defendants then asked Johnson whether he made any efforts to retain the footage, 

and he said that he could not do so because he was in jail “for three days” after the incident. 

Johnson’s arrest report and bond, however, indicate that he was released from jail the day after 

the incident. Johnson also testified that when he returned home from jail, he did not personally 

check to see if the video had been deleted. Rather, he asked another of his brothers, Oscar, about 

the footage, and Oscar told him that the footage was gone. Johnson admitted that he did not 

know whether Oscar actually checked to see if the video was available. 

DISCUSSION 

When a party fails to preserve evidence, Fed. R. Civ. P. 37(c)(1)(B) permits the Court to 

sanction the party by “inform[ing] the jury of the party’s failure.” To determine whether 

sanctions are appropriate, “the Court is guided by whether: 1) there was a duty to preserve the 

[evidence]; 2) the duty was breached; 3) the culpability for the breach rises to a level of 

 

1

 Johnson produced this video after Johnson’s deposition and after the defendants filed their 

motion for sanctions, but before they filed their reply brief. 
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willfulness, bad faith, or fault; 4) Defendant[s] w[ere] prejudiced; and 5) an appropriate sanction 

can ameliorate the prejudice from the breach.” MacNeil Auto. Prods., Ltd. v. Cannon Auto. Ltd., 

715 F. Supp. 2d 786, 800 (N.D. Ill. 2010). 

“A party has a duty to preserve evidence over which it had control and reasonably knew 

or could reasonably foresee was material to a potential legal action.” Id. Johnson had control 

over the video footage at issue. He admitted in his deposition that he was “in charge” of the 

building’s video surveillance system, and he stated in his response brief that in other instances he 

has been able to provide copies of videos to the Chicago Police Department upon request. Upon 

his release from jail, Johnson reasonably knew or could have reasonably foreseen that he would 

bring a § 1983 lawsuit against the defendants (he was fully aware at that time of the factual 

predicate for his claims), and that video of the incident could be material to that litigation. The 

parties dispute whether the video still existed by the time that Johnson was released from jail, but 

it is undisputed that Johnson never even checked to see if the video still existed. Rather, Johnson 

relied on Oscar’s statement that the video was “gone” even though he did not know whether 

Oscar had checked. We now know that Oscar’s statement was incorrect, at least insofar as video 

footage of the building’s entrance still existed. The defendants have shown that Johnson had a 

duty to preserve the video evidence, and he breached that duty. 

The defendants have also shown that Johnson was at fault for failing to preserve the 

video footage. In this context, “fault” means that Johnson’s conduct in failing to preserve the 

evidence was unreasonable. See Marrocco v. Gen. Motors Corp., 966 F.2d 220, 224 (7th Cir. 

1992). Here, Johnson’s conduct was unreasonable because he failed to make any effort 

whatsoever to preserve the video footage despite the fact that he knew or should have known that 

it might be relevant to his claims. Because Johnson was at fault, sanctions are permissible. Id.
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The defendants have further shown that Johnson acted in “bad faith,” the level of 

culpability required to obtain an adverse inference instruction. The defendants first suggested 

that Johnson acted in “bad faith” and requested an adverse inference instruction in their reply 

brief.2

 “A party destroys a document in bad faith when it does so ‘for the purpose of hiding 

adverse information.’” Bracey v. Grondin, 712 F.3d 1012, 1019 (7th Cir. 2013) (quoting Faas v. 

Sears, Roebuck & Co., 532 F.3d 633, 644 (7th Cir. 2008)). Assuming the evidence at trial 

confirms what the defendants have argued here—i.e., that Johnson admits that he was in control 

of the video, that he admits that he never attempted to preserve the video except by asking Oscar 

whether the video existed, and that he at first did not produce any video but that he later video 

from the least probative camera at the front of the building—the defendants have made out a 

prima facie case that Johnson acted in bad faith. Although there is no evidence that Johnson ever 

viewed the video footage before it was destroyed, and therefore there is no evidence that he 

knew for certain whether it contained adverse information that would harm his claims, Johnson’s 

ability to produce (albeit tardily) the least probative video footage makes his failure to produce 

the footage from the more probative cameras suspicious—sufficiently so for a jury to conclude 

that the failure to preserve the video from the cameras that were most likely to have captured the 

relevant conduct was not inadvertent. Whether Johnson actually destroyed the video (or allowed 

it to be destroyed) in bad faith is a question of fact, and the Seventh Circuit Pattern Jury 

Instruction relating to adverse inferences appropriately leaves it up to the jury to determine 

 

2

 Defendants’ initial motion requested only an instruction that Johnson had a duty to preserve the 

video footage but failed to do so. After the defendants filed their motion and Johnson produced 

the video of the building’s entrance—from the only one of the three cameras that did not capture 

significant interactions between Johnson and the defendants—the defendants requested in their 

reply brief that the jury be instructed that it could draw an adverse inference from that failure. 
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whether Johnson destroyed the video in bad faith.3

 The defendants have shown sufficient 

evidence of bad faith to warrant the instruction. 

Further, the defendants argue that destruction of the video prejudiced them, and that this 

jury instruction would partially mitigate the prejudice. The defendants are correct that they are 

prejudiced to the extent that the video would have shown that they did not use excessive force or 

that they had probable cause to arrest Johnson. And an adverse inference instruction would 

mitigate that prejudice. The defendants will bear the burden of proving to the jury by a 

preponderance of the evidence that Johnson intentionally destroyed the video in bad faith. If they 

are able to so prove, the jury will assume that the video evidence would have been unfavorable to 

Johnson, mitigating the defendants’ prejudice at least somewhat. 

Therefore, the Court, in its discretion, grants the defendants’ motion for sanctions and, 

assuming the evidence at trial related to the video is consistent with the evidence that the 

defendants have advanced in this motion, the Court will give the jury Seventh Circuit Pattern 

Jury Instruction 1.20, modified as appropriate. 

 

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 Seventh Circuit Civil Pattern Jury Instruction 1.20 reads (inserting the parties’ names): 

The defendants contend that Johnson at one time possessed [describe 

evidence allegedly destroyed]. However, Johnson contends that [evidence 

never existed, evidence was not in its possession, evidence was not 

destroyed, loss of evidence was accidental, etc.]. 

You may assume that such evidence would have been unfavorable to 

Johnson only if you find by a preponderance of the evidence that: 

(1) Johnson intentionally [destroyed the evidence] [caused the evidence to 

be destroyed]; and 

(2) Johnson [destroyed the evidence] [caused the evidence to be 

destroyed] in bad faith.
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Entered: August 12, 2013 

John J. Tharp, Jr. 

United States District Judge