In the

United States Court of Appeals

For the Seventh Circuit ____________

Nos. 06-3827 & 06-3828

JEREMY KUNZ,

Plaintiff-Appellee/

Cross-Appellant,

v.

RICHARD DEFELICE,

Defendant-Appellant/

Cross-Appellee,

and

CITY OF CHICAGO, et al.,

Defendants/Cross-Appellees.

____________

Appeals from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 01 C 1753—James B. Zagel, Judge.

____________

ARGUED NOVEMBER 28, 2007—DECIDED AUGUST 14, 2008

____________

Before EASTERBROOK,Chief Judge, and FLAUM and WOOD,

Circuit Judges.

WOOD, Circuit Judge. On March 22, 1999, Jeremy Kunz

spent the afternoon and evening in a bar watching
2 Nos. 06-3827 & 06-3828

March Madness and consuming a few Guinnesses. As the

night wore on, he asked a fellow he knew from the bar,

Erik, if he could borrow Erik’s SUV for a short time. Erik

handed over the keys to his vehicle, and Kunz left on his

errand. The events relating to the rest of the evening

gave rise to a low-speed car chase, a brutal interrogation,

and a lawsuit against the City of Chicago and certain

police officers. Kunz prevailed in that litigation, winning

jury verdicts against Officer DeFelice for $10,000 in compensatory damages and $250,000 (later reduced to

$90,000) in punitive damages, as well as a verdict against

the City for another $15,000 in compensatory damages. The

City and DeFelice appeal from those judgments, and

Kunz cross-appeals from the district court’s grant of

summary judgment in the defendants’ favor on several

other counts.

In the end, we find that the evidentiary arguments on

which DeFelice relies fail to show any abuse of discretion

by the district court, much less the prejudice that would

be necessary to upset the jury’s verdict. With respect to

the cross-appeal, we conclude that Kunz’s additional

theories were properly dismissed. We therefore affirm

the district court’s judgment in its entirety.

I

After Kunz left on his errand—which turned out to be

the delivery of some drugs—he grazed a parked car and

kept driving. His actions prompted a 911 call from a

witness; Officer DeFelice and his partner responded.

Despite the flashing lights on the police car, Kunz kept

driving, with the police in pursuit. DeFelice discovered,

after running the SUV’s plates, that it had been reported

stolen. When Kunz finally stopped the car, he got out and
Nos. 06-3827 & 06-3828 3

tried to flee on foot. Throughout this time, he was trying

to toss the packets of drugs away from himself. The

chase ended after Kunz tried scaling a chain-link fence.

Cornered at the top, he was ordered back to the ground

and cuffed.

As he was being handcuffed, multiple police officers

kicked Kunz, eventually causing a sharp pain later diagnosed as a broken rib. The police then dragged the

injured and restrained Kunz to their squad car and took

him back to the station, where they placed him in a

room on a stool, still cuffed and facing DeFelice. DeFelice

repeatedly punched Kunz in the face hard enough to

make him pass out several times. Finally, Kunz falsely

confessed that he knew that the car he was driving was

stolen. Another officer, who had watched the entire

exchange, typed out the confession. Kunz was then photographed and taken to the lock-up. He complained of

injuries but was not taken until the next afternoon to a

hospital, where he was given a non-prescription painkiller. A visit to an emergency room the day after that

resulted in a prescription for Motrin.

As a result of this incident, Kunz was charged with

possession of a stolen motor vehicle, aggravated flight,

and leaving the scene of an accident. Four days after his

arrest, he was returned to custody for violating a bail

bond on an older retail theft charge; he chose to exonerate

his bond and remain in custody so that the money could

be returned to his mother. While he was in jail awaiting

trial on the stolen vehicle charge, he and a high-school

age co-defendant were charged with possession of a

controlled substance based on an unrelated incident.

Distressed by the aftermath of Kunz’s arrest, Kunz’s

mother filed a complaint on his behalf with Chicago’s
4 Nos. 06-3827 & 06-3828

Office of Professional Standards (OPS) on April 13,

1999, and OPS began to look into the matter. Even though

OPS inquiries ordinarily take 30 days to complete, this

one dragged on. Kunz requested the file in October 1999

in order to defend against the stolen motor vehicle

charge and was told in November that the investigation

was still active. OPS never did turn over the whole file,

despite numerous requests and subpoenas.

On June 19, 2000, as the state court’s patience with the

slow discovery was wearing thin, the state’s attorney

elected to forgo the charge of possession of a stolen

motor vehicle in favor of the charge for possession of a

controlled substance. The reason given for the change

in strategy was the need to expedite trial for the

younger co-defendant, but at the hearing the prosecutor

mentioned that the “[OPS] investigation” was “reaching [a]

dead end . . . .” Kunz was convicted on the controlled

substances charge and was sentenced on November 15,

2000. At the sentencing, Kunz’s past convictions were

introduced as aggravating factors, as was the possession

of a stolen motor vehicle charge (describing the facts from

the police report plus Kunz’s confession). Kunz was

sentenced to time served, and the State dismissed the

stolen motor vehicle charge nolle prosequi.

Kunz was freed on November 20, 2000. Some time later,

he filed a lawsuit under 42 U.S.C. § 1983 for, among

other things, excessive use of force and failure to give

medical treatment, as well as a claim for malicious prosecution under Illinois law. During the pretrial stage of

the proceeding, the district court granted summary judgment in favor of defendant Michael Goldston and it

dismissed Kunz’s malicious prosecution claim. On August

5, 2005, just before trial was to begin, Kunz dismissed
Nos. 06-3827 & 06-3828 5

without prejudice all remaining defendants except the

City and DeFelice. (It is now much too late to revive

those claims, and so these dismissals are now, as a practical matter, with prejudice.) At that time, Kunz also

mentioned that he was seeking damages to compensate

for the time he spent in detention. With respect to the

latter point, the court ruled that Kunz could not introduce this evidence unless and until the jury ruled in his

favor on liability.

After a four-day trial, the jury returned a verdict on

August 11 finding that one or more City police officers

and DeFelice used excessive force against Kunz and

that City officers failed to provide him with medical

attention. As we have already mentioned, it found that

DeFelice was liable for $10,000 in compensatory damages

and $250,000 in punitive damages, and the City was

liable for $15,000 (since it had stipulated that it would

pay any damages on behalf of the unnamed defendants

in the suit). At that point, the record becomes murky. It

is apparent, however, that Kunz never asked the district

court to permit him to introduce evidence on the additional damages claim he had raised just before trial.

Instead, on August 22, he moved for entry of judgment

against DeFelice and the City. On August 22, the court

responded with a minute order saying only “MOTION

by Plaintiff Jeremy Kunz for entry of judgment . . . is

granted. No notice”; the docket indicates that this order

was entered on August 29, 2005. Eventually, on September 16, 2005, the court entered a formal “Judgment in a

Civil Case”; interestingly, that judgment says that it “is

entered in favor of plaintiff Jeremy Kunz and against

defendant City of Chicago and Richard Defelice [sic] in the

amount of $25,000 for compensatory damages and $250,000
6 Nos. 06-3827 & 06-3828

in punitive damages against defendant Richard Defelice.”

(It is unclear why the court added together the two compensatory damages verdicts, but as this has no effect on the

appeal, we do not comment further on it.) As we explain below, even this order left parts of the case hanging,

but all claims of all parties were eventually wrapped up

before the notices of appeal were filed.

In the meantime, on September 1, 2005, DeFelice moved

under FED. R. CIV. P. 59 to reduce the punitive damages

award. This motion was filed just three business days

after the court’s minute order granting Kunz’s motion

for entry of judgment was entered, even though it came

before the Rule 58 judgment. Before the court ruled on

DeFelice’s motion, Kunz filed a motion on November 4,

2005, seeking to revive his claim for damages arising from

his detention; he argued in the motion that the Fourth

Amendment supported such damages, and he added an

argument based on the Fifth Amendment in his reply brief.

The district court rejected Kunz’s motion in an order of

June 22, 2006. It ruled on DeFelice’s remittitur request on

August 30, 2006, and reduced the punitive damages

award to $90,000. It did not, however, enter a new

Rule 58 judgment. Both DeFelice and Kunz filed their

notices of appeal and cross-appeal on October 19, 2006.

II

We begin with Officer DeFelice’s appeal. Before

turning to the merits, we must decide whether his notice of

appeal was filed by the required date. In general, parties

other than the United States have 30 days from the date

when the judgment or order is entered to file an appeal.

FED. R. APP. P. 4(a)(1)(A). A motion under FED. R. CIV. P. 59
Nos. 06-3827 & 06-3828 7

to alter or amend a judgment has the effect of postponing this deadline until the entry of an order disposing

of that motion. FED. R. APP. P. 4(a)(4)(A)(iv). In this

case, the court disposed of DeFelice’s Rule 59 motion on

August 30, and DeFelice did not file his notice of

appeal until October 19, substantially beyond the 30-day

period allowed. We must therefore see whether any

rule effectively extended the time for his appeal.

The answer depends on whether the district court’s

order granting his Rule 59 motion in part is one that is

subject to the “separate document” requirement of Rule

58(a). That rule says “[e]very judgment and amended

judgment must be set out in a separate document, but

a separate document is not required for an order disposing of a motion . . . (4) . . . to alter or amend the judgment, under Rule 59 . . . .” If the separate-document

requirement applies, then both Rule 58(c)(2) and FED. R.

APP. P. 4(a)(7)(A)(ii) provide that the time of entry is

considered to be the earlier of the date when the judgment is set out in the separate document or 150 days

from the entry of the order or judgment in the civil

docket. If the separate-document rule does not apply,

then the time of entry is simply whenever the judgment

is entered in the civil docket. For DeFelice, if the time

is measured from the latter date, then his notice of

appeal is too late. If, however, the separate-document rule

applies, he is entitled to take advantage of the 150-day

period provided by Rule 58(c)(2)(B) and FED. R. APP. P.

4(a)(7)(A)(ii)(second bullet point).

The language of Rule 58 and its appellate counterpart

does not contain any exceptions or qualifications for

orders disposing of motions under Rule 59. Logically,

therefore, one might think that the Rule exempts from the
8 Nos. 06-3827 & 06-3828

separate-document requirement all such motions, not

just a subset of them. That is not, however, the way that

this court read the rule in Employers Insurance of Wausau

v. Titan International, Inc., 400 F.3d 486 (7th Cir. 2005).

We were concerned that the great majority of amended

judgments would come about as a result of motions

made under the various rules identified in Rule 58(a).

Appellate Rule 4(a)(4)(B)(ii) reinforces that assumption,

insofar as it seems to contemplate an amended final

judgment from which an appeal may be taken, after the

district court rules on any of the motions listed in Rule

4(a)(4)(A).

If orders disposing of this set of post-judgment motions,

including motions under Rule 59, were not subject to the

separate-document rule, there is a risk that we would

effectively have read the separate-document requirement out of the rule for almost all amended judgments.

Moreover, Rule 58(a) had good reason to require a separate

document for at least some amended judgments: the

document clarifies what the ultimate result is, benefiting

both the parties (for purposes of enforcement and clarity

of legal obligation) and the judicial system (for providing

a clear time period for taking an appeal). In order to reach

that desirable outcome, however, some stretching was

necessary, as we explained:

The only way to reconcile the requirement that an

amended judgment be set forth in a separate document

with the exception to that requirement for an order

disposing of a Rule 59(e) motion is by reading “disposing of a motion” as “denying a motion.” The reading

is supported, though muddily, by the Committee

Note to the 2002 Amendment to Rule 58. The note

states that “if disposition of the [Rule 59(e)] motion
Nos. 06-3827 & 06-3828 9

results in an amended judgment [ . . . ] the amended

judgment must be set forth on a separate document[.]”

[ . . . ] Granting a motion is one way of “disposing” of

it, but when a motion to amend a judgment is

granted, the result is an amended judgment, so the

rule becomes incoherent if “disposing” is read literally, for then the order granting the motion both is,

and is not, an order required to be set forth in a separate document. Nonsensical, or as here logically

impossible, interpretations of statutes, rules, and

contracts are unacceptable . . . . So we are driven to

interpret “disposing” as “denying,” not “granting or

denying[.]”

Titan, 400 F.3d at 489 (citations omitted). As far as we can

tell, no court of appeals has disapproved Titan’s result. The

result is a sensible one, putting to one side the tension

it creates with the language of the rule, and Titan is a

relatively recent decision from this court. We therefore

adhere to its ruling and conclude that the separate-document rule did apply to the district court’s August 30,

2006, order of remittitur. Because no such document

was ever prepared, the time of entry of that order is

deemed to be 150 days after the order was docketed.

DeFelice’s appeal fell comfortably within that period,

and we thus have appellate jurisdiction.

DeFelice challenges both the jury’s finding of liability and

the amount of the punitive damages award, even as

reduced. His primary complaint about the liability ruling

relies on several evidentiary rulings that the district

court made during the course of the trial. In order to

review this kind of complaint, it is essential that counsel

draw to this court’s attention the rulings and explanations

the district court gave for its actions. That is why FED. R.
10 Nos. 06-3827 & 06-3828

APP. P. 30(a)(1)(B) & (C) require the appellant to file an

appendix containing “the relevant portions of the pleadings, charge, findings, or opinion” and “the judgment,

order, or decision in question.” See also 7TH CIR. R. 30(a).

Unfortunately, none of the rulings that DeFelice challenges was attached to his brief. Although Kunz supplied

several of the missing rulings (albeit not always with

correct citations), at least one of them was not. Worse, there

are places where the citations have not supported the

points for which they were furnished. This violates FED. R.

APP. P. 30(a)(1)(B) & (C) and 7TH CIR. R. 30(a); it also

means that the certification required by 7TH CIR. R. 39(d)

was incorrect. As we pointed out in United States v.

Patridge, 507 F.3d 1092 (7th Cir. 2007), “[t]his court regularly fines lawyers who violate Circuit Rule 30 yet falsely

certify compliance under Circuit Rule 30(d). E.g., United

States v. White, 472 F.3d 458, 465-66 (7th Cir. 2006); United

States v. Evans, 131 F.3d 1192 (7th Cir. 1997); In re Galvan,

92 F.3d 582 (7th Cir. 1996).” 507 F.3d at 1096. We return to

this topic at the end of the opinion. For now, we observe

only that the appellate record included enough to permit

us to carry forward with our review of the case.

A. Exclusion of Evidence of Conviction

The first ruling DeFelice asks us to examine is the district

court’s decision to exclude one of Kunz’s convictions

from evidence. The State wanted to introduce a 2005

conviction for retail theft into evidence, even though it

had already succeeded in putting many other convictions before the jury. DeFelice contends that the retail

theft conviction is especially probative because it happened very close to trial and thus supposedly illustrated
Nos. 06-3827 & 06-3828 11

a consistent pattern of criminality. This is propensity by

another name, however (DeFelice calls it “full flavor”), and

propensity is a forbidden basis for admitting evidence. See

United States v. Wright, 901 F.2d 68, 70 (7th Cir. 1990);

see also FED. R. EVID. 404(b). Given the prior convictions

for residential burglary already in evidence, the district

court was entitled to conclude that the retail theft evidence was cumulative or inadmissible propensity evidence.

DeFelice also argues that the conviction should have

been admitted either as a crime involving falsehood, see

FED. R. EVID. 609(a)(2), or for impeachment. Looking first

at impeachment, here again the district court enjoys

broad discretion. DeFelice cites Green v. Bock Laundry

Machine Co., 490 U.S. 504 (1989), and Campbell v. Greer,

831 F.2d 700 (7th Cir. 1987), for the proposition that

evidence of past convictions submitted under FED. R.

EVID. 609(a)(1) is not subject to the considerations of

prejudice set forth in FED. R. EVID. 403. He does not mention that Rule 609 was amended after Green and Campbell

to incorporate expressly the balancing of probative

value against prejudice that Rule 403 embodies. The district court was thus fully entitled to take Rule 403 into

account. Whether, in the final analysis, the court’s reasoning was predicated on cumulativeness or propensity,

we find no indication that the court abused its discretion

or that its ruling prejudiced DeFelice.

DeFelice also argues that the district court should have

admitted Kunz’s prior conviction as a crime involving

falsehood under Rule 609(a)(2), which does not

incorporate Rule 403. Although DeFelice is correct that

Illinois considers theft to be a crime of dishonesty for the

purposes of its version of Rule 609(a)(2), People v. Spates,

395 N.E.2d 563, 567-69 (Ill. 1979), he is incorrect to assume
12 Nos. 06-3827 & 06-3828

that this designation is binding on this court—it is not. See

United States v. Cameron, 814 F.2d 403, 405 (7th Cir. 1987).

This circuit generally does not count retail theft as a

crime of dishonesty. See United States v. Amaechi, 991 F.2d

374, 379 (7th Cir. 1993). If DeFelice had presented some

independent reason to override Amaechi and construe

Kunz’s conviction as a crime involving dishonesty, we

could have evaluated that argument. See United States v.

Rodriguez-Andrade, 62 F.3d 948, 952 (7th Cir. 1995). He did

not, however, and we thus cannot conclude that the district court abused its discretion by failing to follow

Rule 609(a)(2).

What DeFelice would really like to do is to portray Kunz

as a witness who is predisposed against police officers

and who has a propensity to misbehave. But FED. R. EVID.

404 generally forbids the use of past acts, even of criminality, to prove a criminal, dishonest character in a

civil case. None of the exceptions to that rule applies

here. The jury had ample evidence before it that alerted it

to Kunz’s prior encounters with the law. Whether the

court excluded the evidence because it raised an inference of propensity forbidden by Rule 404 or because it

was cumulative and thus excludable under Rule 403,

we see no abuse of that discretion.

B. Exclusion of Expert Witness

DeFelice also argues that the district court erred by

excluding his key expert witness, James O’Donnell. Under

the framework established by FED. R. EVID. 702 and the

Supreme Court’s decision in Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993), this court

reviews de novo whether the district court understood the
Nos. 06-3827 & 06-3828 13

legal requirements of Rule 702, and then reviews decisions to admit or exclude expert testimony for abuse of

discretion. General Electric Co. v. Joiner, 522 U.S. 136, 142-43

(1997); United States v. Parra, 402 F.3d 752, 758 (7th Cir.

2005).

Kunz asserts that DeFelice failed to preserve this point

properly in the district court, but we are satisfied that

DeFelice’s offer of proof was enough to alert the court

to the central questions: what was O’Donnell going to

testify about, what methods did he use, and on what

information did he base his conclusions? The first

Daubert question on the merits is whether the court handled its gatekeeping role properly. The court must decide

whether the proffered expert testimony is “based upon

sufficient facts or data” and is “the product of reliable

principles and methods.” FED. R. EVID. 702(1) & (2). Here,

the district court found O’Donnell’s testimony unreliable

because it was not based on a sound methodology.

DeFelice wanted O’Donnell to testify about Kunz’s

ability to recall and narrate events on the night in question, given the fact that Kunz had admitted to using a

small amount of heroin earlier in the evening. The district court noted that O’Donnell knew neither a baseline against which to judge whether Kunz was impaired,

nor Kunz’s habituation level (which might influence the

impairing effects of the drug). Indeed, O’Donnell was a

singularly unimpressive witness. His credentials were

weak, at best: his degree is called a Pharm.D.; he earned

it after one year of classes, only one of which was in

pharmacology. Despite the title, his Pharm.D. is not

actually in pharmacology, and O’Donnell admitted elsewhere to advertising falsely that it was. Before he became a full-time consulting expert witness, O’Donnell’s
14 Nos. 06-3827 & 06-3828

experience was as a nutritionist. In addition, O’Donnell

practically admitted on cross-examination that he had

not referred to any scientific literature in formulating

his opinion in this case except for one article, proffered

by Kunz, which contradicted O’Donnell’s conclusion.

The district court found O’Donnell’s testimony unhelpful, commenting that “[v]irtually everything [O’Donnell]

said, with respect to this, was anticipated by me.” The

court then compared O’Donnell to other expert witnesses who “give you a long description of why 20 or 30

percent of eyewitnesses make errors” but who “really

have nothing to offer as to why this particular eyewitness in the case didn’t make an error.” O’Donnell hoped

to shed light on heroin users as a group, but he had

nothing useful to say about Kunz’s condition at the

critical time. In addition, Kunz pointed out that even if

O’Donnell’s testimony were taken at face value, the

impairing effects of the heroin should have worn off at

least 90 minutes before the car chase occurred. According

to a defense expert, there might not have been any effect

at any time. That expert opined that habituation levels

are crucial in a case like this: far from being impaired,

a habituated heroin user can use a “maintenance dose”

to avoid impairment and maintain normal function. Under

the circumstances, the district court did not abuse its

discretion in excluding O’Donnell’s testimony. See Kumho

Tire Co. v. Carmichael, 526 U.S. 137, 153-54 (1999).

C. Restriction on Cross-Examination about Drug Use

DeFelice questions the district court’s ruling barring

cross-examination about drug use. The chief difficulty he

faces on appeal is that the district court never made this
Nos. 06-3827 & 06-3828 15

ruling. As DeFelice acknowledges in his reply brief, the

district court forbade only use of the word “heroin,”

because at the time of the arrest, the officers did not know

the nature of the drug or Kunz’s usage and because

mention of heroin would be more prejudicial than helpful.

DeFelice apparently intended to cross-examine Kunz about

his drug use in order to establish the foundation for

O’Donnell’s testimony about the impairing effects of

heroin use.

This court has explained when evidence of a witness’s

drug use may be introduced: 

Evidence that a witness has used illegal drugs may

be probative of the witness’ possible inability to recollect and relate . . . . This evidence may be admitted

where the memory or mental capacity of a witness is

legitimately at issue. . . . At the same time, however,

there is considerable danger that evidence that a

witness has used illegal drugs may so prejudice the

jury that it will excessively discount the witness’

testimony. . . . A court must, therefore, be chary in

admitting such evidence when it is offered for the

sole purpose of making a general character attack.

United States v. Cameron, 814 F.2d 403, 405 (7th Cir. 1987)

(quotations and citations omitted). The only link between

Kunz’s drug use on the night in question and his recollection would have been through O’Donnell’s testimony.

Absent that link, additional evidence of Kunz’s drug use

(other than that to which he had already admitted)

would only have served to raise the inference that drug

users tend to lie. That inference is impermissible. United

States v. Robinson, 956 F.2d 1388, 1397-98 (7th Cir. 1992)

(“The appellants, in sum, insist that witnesses who have

previously used narcotics are more likely to tell lies. This
16 Nos. 06-3827 & 06-3828

is exactly the type of character attack that Cameron and

Jarrett [v. United States, 822 F.2d 1438 (7th Cir. 1987)]

forbid.”). The district court did not abuse its discretion

when it established limitations on the evidence about

Kunz’s drug use.

D. Exclusion of Witnesses as Discovery Sanction

DeFelice takes issue with the district court’s decision to

bar the testimony of five witnesses as a discovery

sanction under FED. R. CIV. P. 37. The district court took

this step because it found that DeFelice failed to disclose

the names properly. As Kunz points out, the names

were buried within a multitude of other names, such as

a police district roll call, with nothing to signal that

they had anything useful to add. The district court

found that it would place an excessive burden on the

plaintiff to require him to sift through every single

name turned over in discovery. In fact, DeFelice is

caught in a trap here. If the testimony of these witnesses

was relevant and useful, then his failure to disclose was

prejudicial, and the district court properly exercised its

discretion to exclude the testimony as a Rule 37 sanction.

On the other hand, the error could only be harmless if

the testimony was irrelevant or not useful—which

would be grounds for excluding it anyway. Either

way DeFelice wants to have it, the district court did not

abuse its discretion in excluding the testimony.

E. Punitive Damages; Other Defendants

DeFelice’s final two arguments are intertwined: he

asserts that the district court should not have permitted
Nos. 06-3827 & 06-3828 17

Kunz to dismiss all of the defendants other than DeFelice

on the eve of trial. Their absence at trial prejudiced him,

he says, primarily because it led the jury to impose the

full weight of the punitive damages on him alone. That

award, he continues, even at the $90,000 level, is disproportionate to the compensatory damages.

Voluntary dismissal pursuant to FED.R. CIV. P. 41(a)(2) is

allowed at the district court’s discretion. Tyco Laboratories,

Inc. v. Koppers, Co., 627 F.2d 54, 56 (7th Cir. 1980). A

district court abuses its discretion only if the defendant

shows that she will suffer “plain legal prejudice.” We

have identified four factors that throw light on whether

this kind of prejudice would arise: “[t]he defendant’s

effort and expense of preparation for trial, excessive

delay and lack of diligence on the part of the plaintiff in

prosecuting the action, insufficient explanation for the

need to take a dismissal, and the fact that a motion for

summary judgment has been filed by the defendant.” Pace

v. Southern Express Co., 409 F.2d 331, 334 (7th Cir. 1969).

DeFelice does not come close to showing reversible error

here. The assertion that his defense was hampered by

creating too many empty chairs at the defense table

seems backward: far from preventing him from “deflecting” liability onto others, as he phrases it, it permitted

him to point at those empty chairs and question how

much of the harm he was responsible for. Unlike codefendants, empty chairs do not talk back. DeFelice

questioned Kunz about the dismissals at trial, and so the

jury was well aware that DeFelice was not the only

officer involved. Finally, DeFelice did not object to the

motion at the time, and so he has forfeited the point.

DeFelice also argues that he was saddled with disproportionate punitive damages (initially $250,000, then after
18 Nos. 06-3827 & 06-3828

remittitur $90,000) because he ended up as the sole defendant. When no constitutional issue about the size of

a punitive damages award has been raised, we review

only for abuse of discretion. Cooper Industries v. Leatherman Tool Group, 532 U.S. 424, 433 (2001). If, however,

we must decide whether an award transgresses constitutional limits, our review is de novo. Id. at 436. DeFelice

cites constitutional decisions in his brief, including BMW of

North America, Inc. v. Gore, 517 U.S. 559, 575 (1996),

and State Farm Mut. Automobile Ins. Co. v. Campbell, 538 U.S.

408, 425 (2003), but he also cites one case from this circuit

where a conventional claim of excessiveness was raised,

and reviewed deferentially, Abernathy v. Superior Hardwoods, Inc., 704 F.2d 963, 971 (7th Cir. 1983). Despite Cooper’s guidance, he does not distinguish between the

two kinds of arguments. The Supreme Court’s recent

decision in Exxon Shipping Co. v. Baker, 128 S.Ct. 2605

(2008), underscores the importance of keeping these

theories straight. In Exxon, the Court held that as a matter

of federal common law, a punitive damages award in an

admiralty case may not exceed the compensatory award

(that is, a 1:1 ratio is the upper limit for this class of cases).

128 S.Ct. at 2633. The Court stressed both the particular

features of maritime law, as exemplified by the oil spill

caused by the Exxon Valdez, and the fact that it was

“acting here in the position of a common law court of last

review.” Id. at 2629.

Kunz’s case was brought under 42 U.S.C. § 1983. Although this statute, like many, requires a certain amount

of elaboration, we do not sit, as the Exxon Court did, as

a “common law court of last review.” Instead, we must

respect the limitations Congress built into the statute. In the

context of establishing the proper limitations period
Nos. 06-3827 & 06-3828 19

for various federal actions when the statute is silent,

the Supreme Court has reminded us that “[i]nevitably

our resolution of cases or controversies requires us to

close interstices in federal law from time to time, but

when it is necessary for us to borrow a statute of limitations

for a federal cause of action, we borrow no more

than necessary.” West v. Conrail, 481 U.S. 35, 39 (1987).

Looking particularly at § 1983, the Court has also held that

“[t]here can be no doubt that claims brought pursuant to

§ 1983 sound in tort.” Monterey v. Del Monte Dunes at

Monterey, Ltd., 526 U.S. 687, 709 (1999); id. at 727 (Scalia, J.,

concurring). There is thus good reason for us to look for

guidance in the standards for excessiveness of punitive

damages that courts have established in tort cases, when

we evaluate this verdict.

DeFelice, however, has not presented any argument

for the proposition that § 1983 imposes a stricter limitation on awards of punitive damages than the Constitution

would permit in a state tort case. We therefore have no

reason to consider that question. Instead, as he has implicitly requested, we look only at the question whether

the eventual verdict of $90,000 in punitive damages

exceeds the outer limits established in the Supreme Court’s

constitutional cases. Our evaluation is guided by three

guideposts: the reprehensibility of the action in question,

the ratio between the compensatory and punitive damages, and the parallel remedies available. See Gore, 517

U.S. at 575.

Of these guideposts, “[p]erhaps the most important

indicium of the reasonableness of a punitive damages

award is the degree of reprehensibility of the defendant’s conduct.” Id. Evaluating reprehensibility involves

inquiry into whether the injury was physical, whether
20 Nos. 06-3827 & 06-3828

it evinced a reckless disregard for the health of the

target, whether the target had a financial vulnerability,

and whether the injury was clearly intentional. See State

Farm, 538 U.S. at 419. DeFelice’s brief slid quickly over

this factor. Kunz’s injury was clearly physical, he was

shackled and defenseless while he was being punched

and thus vulnerable to the injury inflicted, and DeFelice’s

violent actions were intentional. This court takes police

brutality very seriously as grounds for punitive damages.

See, e.g., Cooper v. Casey, 97 F.3d 914, 919 (7th Cir. 1996).

The need to deter such behavior is plain: police brutality

is a longstanding problem with which many cities are

still coming to grips. The reprehensibility of DeFelice’s

conduct in his position of public trust justifies a substantial punitive damages award.

The second guidepost we consult is the ratio between the

compensatory and punitive damages awards. As Exxon

reiterated, there is no “simple mathematical formula” that

courts must follow. See 128 S.Ct. at 2626; Gore, 517 U.S. at

580-82. Instead, the Exxon Court acknowledged that

“heavier punitive awards have been thought to be justifiable when wrongdoing is hard to detect” or “when the

value of injury and the corresponding compensatory

award are small.” 128 S.Ct. at 2622. In making the latter

point, the Court relied on Gore, which recognized that

“low awards of compensatory damages may properly

support a higher ratio than high compensatory awards,

if, for example, a particularly egregious act has resulted

in only a small amount of economic damages.” 517 U.S.

at 582. DeFelice does not offer a clear response to this

point. The jury’s award of $10,000 in compensatory damages against DeFelice was low for a beating of this kind,

and there is some reason to think that the “punitive” award
Nos. 06-3827 & 06-3828 21

was disguised compensation for pain and suffering. A

total of $100,000 for Kunz’s injuries does not seem excessive. Moreover, even accepting the characterization of

the $90,000 damages award as punitive, the ratio to compensatory damages is still in the single-digits—9:1—

nowhere near the 500:1 ratio overturned in Gore. Particularly in light of DeFelice’s poorly developed arguments

on this point, we see no reversible error in the ratio between the compensatory and the punitive damages.

The final guidepost involves examining the parallel

remedies available to Kunz. DeFelice argues that under

Illinois law a conviction for battery or aggravated battery

would have resulted in fines of $2,500 or $25,000, respectively. See 730 ILCS 5/5-9-1(a)(1) & (2). While this is

true, he neglects to point out that an aggravated battery

conviction, a felony, might also bring from two to five

years of prison time. 730 ILCS 5/5-8-1(a)(6). In Gore the

Supreme Court recognized that fines alone might not

tell the whole story about proportionality when imprisonment is also on the table. See Gore, 517 U.S. at 583-84. In

this case, the possibility of damages under 42 U.S.C. § 1983

was also lingering in the background. In short, we cannot

simply look in isolation at the fines authorized under

the pertinent Illinois statutes. We note as well that

nothing in this record suggests that DeFelice has already been punished. The City’s brief says only that he

is “no longer a Chicago police officer,” citing to a place

in the record where DeFelice testifies that he is retired.

The broader picture therefore shows that the punitive

damages award ordered by the court is not so disproportionate that we must vacate it.
22 Nos. 06-3827 & 06-3828

III

We now turn to Kunz’s cross-appeal against the City

of Chicago. He appeals the district court’s decision to

enter summary judgment in the City’s favor on his constitutional and state malicious prosecution claims. The

City, in addition to defending its judgment, asserts that

this court has no jurisdiction over the cross-appeal because it was untimely filed. We conclude, however, that

we have appellate jurisdiction. After explaining why,

we turn to the merits.

A. Jurisdiction

The City questions the timing of Kunz’s damages complaint. It argues that Kunz did not raise this claim until

after the district court entered final judgment in the case,

and thus that this can at most be a motion under FED. R.

CIV. P. 60(b). If that were correct, then his motion would

be untimely: the court entered its judgment on September 16, 2005; the motion was made on November 4,

2005, and then it was denied on June 22, 2006. A motion

under Rule 60(b) has a 30-day time limit for filing an

appeal. See FED. R. APP. P. 4(a)(1)(A) (setting time limit at

30 days from the entry of the order appealed from); FED.R.

APP. P. 4(a)(7)(A)(i) (starting clock on date of filing if

order does not require a separate document to be filed);

FED. R. CIV. P. 58(a)(1)(E) (order under Rule 60 does not

require a separate document). On this account, Kunz’s

notice of appeal—filed October 19, 2006—comes too late,

ousting this court of jurisdiction.

But a look at the record as a whole reveals that the

district court used the “final judgment” form prematurely,

even by its own lights. The district court had expressly
Nos. 06-3827 & 06-3828 23

bifurcated Kunz’s claim for damages. When it addressed

the merits of the issue in its June 22, 2006 opinion, it

noted that it had given permission to Kunz to raise the

issue later on if he won at the main § 1983 trial. In a

minute order entered on October 6, 2005, just a few

weeks after the September 16 form was docketed, the

court recognized that there was an “additional damages

motion to come.” Frustratingly, the district court did not

purport to resolve all of the issues before it in the June 22,

2006 opinion, nor did it give a “no just reason for delay”

certification for appeal of a partial summary judgment

under Rule 54(b). All that we can see is an internal

docket entry stating “case terminated,” although it is not

clear that this was even entered by the judge. With all of

the other evidence we have, we agree with Kunz that the

June 22, 2006 opinion was not a final judgment with

respect to all claims against all parties. Thus, it would

be improper to characterize his later motion as one made

under Rule 60.

As best as we can tell (and it should not be this hard),

the true final judgment in this case did not come until

the resolution of DeFelice’s remittitur motion on August 30, 2006. Like DeFelice’s own notice of appeal,

Kunz’s October 19, 2006 notice of appeal is therefore

timely under the 150-day limit of FED. R. APP. P.

4(a)(7)(A)(ii), and this court has jurisdiction over Kunz’s

cross-appeal.

B. Unlawful Detention

Kunz would like to assert a damages claim for the

extra year he spent in jail, but his theory has shifted

through the case. This claim was split off from the rest of
24 Nos. 06-3827 & 06-3828

the trial in August 2005, raised again on November 4,

2005, and then denied on June 22, 2006. As of November 2005, it was framed as a claim for damages for the

use of excessive force in violation of the Fourth Amendment. Kunz urged that the coercive force DeFelice used

proximately caused his extended detention and ensuing

damages. Later, in March 2006, Kunz recast the claim as

one under the Fifth Amendment, in reaction to this

court’s holding in Sornberger v. City of Knoxville, 434

F.3d 1006 (7th Cir. 2006).

The district court ruled that Kunz had failed to state a

claim under either the Fourth or the Fifth Amendment; it

expressed no opinion on the merits of a possible claim

under the Fourteenth Amendment’s substantive due

process jurisprudence. The Fourth Amendment claim

was found foreclosed under Wallace v. City of Chicago, 440

F.3d 421, 429 (7th Cir. 2006) (“We reject the idea of a

stand-alone ‘false confession’ claim based on the Fourth

Amendment, rather than the Fifth Amendment or the

due process clauses.”), affirmed on other grounds under

the name Wallace v. Kato, 127 S.Ct. 1091 (2007). Kunz

does not appeal this part of the ruling, but he does appeal

the district court’s rejection of his Fifth Amendment theory.

The Fifth Amendment argument was not properly

preserved before the district court. Kunz’s initial brief

addressed only a claim under the Fourth Amendment;

the Fifth Amendment theory was not articulated until

the reply brief on this question. While all that is required

is notice pleading, see Bell Atlantic Corp. v. Twombly, 127

S.Ct. 1955 (2007), the district court effectively considered

this motion in a summary judgment posture. Kunz thus

had to articulate a legal theory under which he was

entitled to relief. See FED. R. CIV. P. 56(c). Although the
Nos. 06-3827 & 06-3828 25

district court briefly mentioned the Fifth Amendment, its

opinion shows that the theory was not fully developed

before it (certainly not in the detail with which it was

presented to this court). Especially on a question that

would require the application of a novel legal theory to a

new set of facts—as would be the case if Sornberger were

to be applied here—the district court must have the first

opportunity to rule with the benefit of full briefing and

consideration. Failure adequately to present an issue to

the district court waives the issue on appeal. Belom v.

Nat’l Futures Ass’n, 284 F.3d 795, 799 (7th Cir. 2002). We

therefore affirm the district court’s judgment on this

issue on the ground that it was not properly preserved

in the district court.

C. Malicious Prosecution

Finally, the district court granted summary judgment

to the City on Kunz’s malicious prosecution claim. In

order to prove malicious prosecution, Kunz must show

“(1) the commencement or continuance of an original

criminal or civil judicial proceeding by the defendant;

(2) the termination of the proceeding in favor of the

plaintiff; (3) the absence of probable cause for such proceeding; (4) the presence of malice; and (5) damages

resulting to the plaintiff. . . . The absence of any one of

these elements bars a plaintiff from pursuing the

claim.” Swick v. Liautaud, 662 N.E.2d 1238, 1242 (Ill. 1996)

(citations omitted). The district judge found that the nolle

prosequi entered in Kunz’s case was not sufficiently indicative of innocence to satisfy the second Swick element

and consequently did not reach any of the other elements.

We express no view on the second element, because we
26 Nos. 06-3827 & 06-3828

find that Kunz cannot satisfy the third one: there was

sufficient probable cause to arrest and detain him.

The Illinois statute in question, 625 ILCS 5/4-103(a)(1),

makes it a crime to possess a stolen car knowing it to be

stolen. Kunz argues that there was insufficient indication

of scienter to give probable cause for a charge under this

provision: the police could not have thought that Kunz

knew the SUV to be stolen. Nevertheless, in the very

provision in question the statute says that “it may be

inferred . . . that a person exercising exclusive unexplained

possession over a stolen or converted vehicle . . . has

knowledge that such vehicle . . . is stolen or converted.” Id.

Kunz’s behavior easily exhibited the requisite control to

demonstrate scienter. Illinois courts have relied on this

constructive scienter provision. See People v. Gentry, 549

N.E.2d 609, 612 (Ill. App. Ct. 1989). This statute has been

applied even when there are no outward signs of theft on

the vehicle itself (such as a stripped steering column or

punched locks) and when the keys were found in the car,

People v. Wallace, 772 N.E.2d 785, 790-91, 797 (Ill. App. Ct.

2002), both of which were true in this case as well. The

facts as they were known to the police at the time of the

incident gave rise to an inference of probable cause

under Illinois law. Because probable cause existed for

the charge against Kunz, the prosecution cannot have

been malicious under Illinois law. 

IV

In summary, we hold that Officer DeFelice has failed to

show any abuse of discretion in the district court’s

various evidentiary rulings, and certainly not one

affecting his substantial rights. He has also offered no
Nos. 06-3827 & 06-3828 27

reason why we should set aside the amended award of

punitive damages. Similarly, Kunz has failed to demonstrate why the district court erred in its rulings on his

Fifth Amendment theory or his malicious prosecution

claim. We therefore AFFIRM the judgment of the district

court.

With respect to the violation of 7TH CIR. R. 30(d) we

discussed above, we hereby issue an order to Joseph V.

Roddy and Stacey McGlynn Atkins, the attorneys for

DeFelice who signed the brief, to show cause why they

should not be fined or otherwise disciplined for this

violation. Their response is due within 10 days of the

date of this opinion.

8-14-08