those statements as a basis for reversal of a jury verdict);
Lentomyynti Oy v. Medivac, Inc., 997 F.2d 364, 374 (7th Cir. 1993)
("To the extent that the plaintiffs are truly claiming that defense
counsel’s closing was improper. . . this argument is waived. Beppe
requires a party to object to alleged errors either during closing
“argument or before the case is submitted to the jury"); Cefalu v.
Village of Elk Grove, 1998 WL 325191, *4 (N.D.I11. 1998) (rejecting
argument that improper closing "unfairly prejudiced the jury" because

there were no objections at trial); Holmes v. Elgin, Joliet & Eastern

Ry. Co., 18 F.3d 1393, 1397-98 (7th Cir. 1994) (refusing to disturb

jury verdict because "[a}lthough he believed that these [closing
argument] remarks were inflammatory and unsupported by evidence,
counsel for EJ & E did not object to the statements and chose instead
to respond in his own closing. . . Nor did he move for a mistrial.
Instead, EJ & E waited to raise the objection until after the jury had

delivered its verdict") .>

5 As the Seventh Circuit explained in Holmes:
EJ & E had several opportunities to object to the remarks it
found inappropriate but it chose not to object until the
jury returned an adverse verdict. Risky gambling tactics
such as this are usually binding on the gambler. As a
result, the objection is considered waived. The law in this
circuit is clear. In civil cases, to preserve for appellate
review errors which are alleged to have occurred during
closing argument, a party must object to those errors before
the trial judge submits the case to the jury to deliberate.
This rule enables a trial judge to make any necessary
curative instructions. . . [Thus], any claims of impropriety
which EJ & E might have had based on Holmes’s closing
statement were squandered when EJ & E failed to object ina
timely fashion.

Holmes v. Elgin, Joliet & Eastern Ry. Co., 18 F.3d 1393, 1397-98 (7th

Cir. 1994) (citations omitted).

18


“*

Garner _v. Meoli, 19 F.Supp. 2d 378, 391-92 (E.D.Pa. 1998)
{upholding $500,000 and $250,000 punitive damage awards against
police officers for excessive force and malicious prosecution;
"the Court cannot say that the jury improperly awarded punitive
damages, nor can the Court say that those damages ’shock its
conscience’") ;

Davis v. Rennie, 264 F.3d 86, 115 (1st Cir. 2001) (remittitur to

$250,000 in punitive damages against each of two prison guards
for violent restraint on Section 1983 theory);

Hughes _v. Patrolmen’s Benevolent Ass‘’n, 850 F.2d 876, 880-81 (2d
Cir. 1988) ($350,000 in Section 1983 punitive damages) ;

Ismail v. Cohen, 899 F.2d 183, 187 (2d Cir. 1990) (reinstating a
jury award of $150,000 in punitive damages in § 1983 case against
a police officer alleging battery, false arrest, malicious
prosecution and abuse of process claims) ;

O’Neill v. Krzeminski, 839 F.2d 9, 13 (2d Cir. 1988) ($185,000 in
punitive awards were not excessive where plaintiff was hit about
the face while handcuffed as another officer watched, even absent
permanent physical or emotional injury) .

As Judge Grady recently observed, "[f]rom our non-exhaustive
review of various punitive damage awards in excessive force cases from
many jurisdictions, all we can conclude is that there is a tremendous
variation." Ibaenez v. Velasco, 2002 WL 731778, *13-*14 (N.D.I1ll.
Apr. 25, 2002). Against this range of permissible awards, courts

apply the "maximum recovery rule," which directs that the amount
should be based on the "highest amount of damages that the jury could
properly have awarded based on the relevant evidence." Jabat, Inc. v.
Smith 201 F.3d 852, 857 (7th Cir. 2000).

In this case, the'jury’s awards are within the "maximum
recovery" rule. There are undoubtedly cases with smaller punitive
damage awards, as well as cases with larger ones, but there is nothing
about this third and final BMW factor which is any more availing to
Defendants than the previous. two. Application of the three-prong BMW
test, therefore, strongly supports a conclusion that the Court should
leave the jury’s verdict intact or reduce it only minimally. E.q.,
American Nat. Bank & Trust Co. v. Regional Transp. Authority, 125 F.3d
420, 438-39 (7th Cir. 1997) ("Although the award by the jury is quite

12



Plaintiff’s letters on Monday and Tuesday (during the unforeseen break
in the trial) requesting to come to Defendants’ office at their
convenience to access their laptop.®

Plaintiff was thus forced to try to pursue his case without
any access to what the Defendants were claiming was the only reliable
evidence of Plaintiff’s face. As the Court pointed out, Plaintiff was
able to put the coarse photocopy on the ELMO machine and blow it up on
the big screen for the jury. What Plaintiff could not do, however,
was show the jury any version of the Defendants’ resolution-enhanced

digital image (which appeared to show absence of any trauma) in order

to illustrate that the color’ settings do matter. Thus, throughout the
trial, Defendants continued to show the jury an unduly blue and
insufficiently red digital image -- leaving it up on the screen as a
backdrop, for example, during Mr. Waits’ entire cross~examination.
Plaintiff was never able to counter with an undistorted version of the
high-resolution image.

On the record and outside the presence of the jury,
Plaintiff attempted to make an offer of proof consisting of the
courtroom technology assistant’s testimony that there was no
"baseline" for the ELMO’s blue versus red color setting. In other
words, the digital image could be as blue or as red as the screen
operator preferred. Plaintiff’s attempt to make this offer of proof

was denied by the Court.

® Also refused were Plaintiff’s requests on the record during cross-

“examination to have Defendants’ counsel themselves return their own

screen to the "desktop" (a single click of the mouse) to illustrate
for the jury that Defendants’ chosen baseline setting was unduly blue
and insufficiently red. Plaintiff was thus not only denied the disk
itself and access to the only laptop with the image, but he was also
denied the ability to request that Defendants allow use of their
laptop before the jury.

22



and then tried to goad Plaintiff into “fighting back." Prusank, who
was Durst’s superior officer, stood by and failed to intervene to
prevent this beating despite every opportunity to have done so.

After about an hour in the room, Defendants took Plaintiff
to be processed. Plaintiff debated telling other officers about the
beating, but decided it was in his best interest to keep quiet,
especially given Durst’s warning that police officers in that District
"stick together" and that if "he messed with one of them, he messed
with all of them." Durst also threatened Plaintiff that he was going
to experience sexual violence in his cell, a threat which fortunately

did not materialize, but nonetheless caused Plaintiff considerable

distress over the next twenty-plus hours of his incarceration.

By the time he was finally released the following morning,
Plaintiff was extremely upset. His friends Dale Nehls and Krista
Knigge corroborated his distress, as well as the continuing symptoms
he suffered in the weeks and months that followed. Both Nehls and ,
Knigge, as well as Plaintiff plus his therapist, Dr. Linden, all
testified that these included mild depression, decreased enjoyment of
life activities, appetite changes, decreased ability to concentrate at
work, and continuing fear of more reprisals. Plaintiff’s expert
rebuttal witness added that while all of this may not risen the level
of full-blown Post-Traumatic Stress Disorder, Plaintiff certainly
suffered in a material way.

Cc. THE DEFENDANTS DID NOT TESTIFY TRUTHFULLY

The Defendants claimed this was a normal arrest, treated no
differently than it would have been if the victim of Plaintiff’s crime
had not been a police officer from their district. Defendants’
testimony in that regard, however, unravelled so badly at trial that
the jury was entitled to conclude, as it did, that Defendants had
testified falsely on a number of points.

3


SEE CASE
FILE FOR
EXHIBITS


B. THERE IS NO BASIS FOR FINDING THE JURY ACTED FROM
IMPROPER PASSION OR PREJUDICE

Even leaving aside this dispositive waiver issue, none of
Defendants’ "prejudice" arguments have the slightest merit in any
case. They are discussed in the order they are presented.

1. THE ARREST PHOTO

Defendants argue first that Plaintiff created unfair
prejudice and passion by raising the possibility that the digital
image may not have been what. Defendants were claiming it was. This
argument is a nonstarter.

After discovery closed, Defendants served Plaintiff with a
Rule 26 Report from a physician who stated he had reviewed two color
photographs and determined Plaintiff had not been hit. What color
photographs? All of Plaintiffs’ witnesses in this case had been asked
at their depositions to describe Plaintiff’s face without any
knowledge that Defendants were holding back these color photographs.

When this discovery violation was brought to the Court’s
attention, the Court denied Plaintiff’s requested relief and instead
ordered Defendants to provide Plaintiff copies of the photographs.

In response to this Order, Defendants sent Plaintiff a piece of paper
containing two color photographs. See Exhibit B. Plaintiff used this
paper to seek expert rebuttal testimony and to prepare for trial.®

During Defendants’ opening statement, however, it was
revealed to Plaintiff for the first time that the piece of paper
Defendants had provided was not the photograph after all; Ms. Brown
stated in the jury’s presence that what Plaintiff was relying upon
apparently was nothing but a "photocopy" of the actual photograph.

Defendants, on the other hand, showed the jury a significantly higher-

6 Before trial, Plaintiff unsuccessfully renewed his motion to bar

references to the photographs given these egregious discovery abuses.

19



“

The most serious example, however, was Defendants’
preoccupation with Plaintiff’s supposed "fragmentation of reality."
Without any legitimate foundation whatsoever, Mr. Monahan repeatedly
asked Mr. Waits and other witnesses about a "fragmentation of reality"
problem. Mr. Monahan went so far as to waive around a thick
transcript during the cross of Dr. Feldman, stating on the record that
he had numerous references supporting that "fragmentation" diagnosis.

As each of the witnesses who testified at trial
corroborated, however, Plaintiff does not suffer from "fragmentation
of reality." Most troublingly, by the time the Defendants closed
their case, they had not even attempted to support a proposition that
Plaintiff had the slightest problem with reality, meaning all of their
questions in that regard were out of bounds from the inception.
Defendants’ attempt to smear Plaintiff in that regard without even
attempting to call a witness to prove up their scurrilous allegations
is certainly fair game for closing argument. It is Plaintiff, not
Defendants, who has cause for complaint.

4. MOTION IN LIMINE

Defendants argue next that Plaintiff created unfair
prejudice and passion by referring to his sentence for the water
squirting battery. First, Defendants made no objection whatsoever on
this point at trial and it will thus not be considered by the
appellate court. Turning to the merits, however, it is plain that the
reason Defendants did not object at the time was because there was no
basis for objection.

In particular, Defendants have mischaracterized the motion
in limine which Plaintiff sought and the Court granted. See Plitf.
Third Mot. in Lim. The Motion was narrowly tailored to bar only

references to the prejudicial fact that Plaintiff’s sentence included

25



up the disk. Id. Defendants ignored a similar letter on Tuesday.

Id. When all of this was brought to the Court’s attention on
Wednesday, the Court accepted Mr. Monahan’s explanation that there had
been an unspecified "snafu" and denied Plaintiff’s renewed motion to
bar Defendants from relying on the digital image.’

The task of copying a computer file containing a photograph
from one disk to another takes a matter of minutes. See Exhibit D.

To this day, however, Defendants have never respected the Court’s
order to provide a copy of the disk to Plaintiff, making it impossible
to attach the file to this Brief to make it part of the record.

To make matters even worse, Plaintiff asked Defendants’
counsel if they could at least access Defendants’ laptop while
awaiting production of the disk so they could (a) see for themselves
whether the "blue" setting had been maximized at the expense of the
"red" setting; and (b) make a strategic determination as to whether
they could use the digital image during their own examinations. The
Defendants refused. Plaintiff moved the Court for assistance at
breaks during the trial, and the Court ordered Defendants to allow
Plaintiff to access the laptop. In a pattern that was repeated
throughout this litigation, however, as soon as the Court left the
room, the Defendants continued to refuse Plaintiff’s requests.
“plaintiff brought the matter to the Court’s attention at least one
more time (putting on the record Defendants’ refusal), but at no point
during the entire trial did Defendants ever permit access to their

laptop. See Exhibit C. Nor’ did they ever even bother to respond to

7 Moreover, it turned out that Defendants’ expert witness claimed to

have relied on the higher-resolution digital image whereas Plaintiff’s
expert (necessarily) based her opinion on the photocopy Defendants had
provided. Before closing argument, Plaintiff pointed out to the Court
the fundamental unfairness of this discrepancy in terms of jury
perception, but Plaintiff’s request for relief was again denied.

21



Defendants are correct insofar as Plaintiff could not have
prevailed on his Hate Crime claim unless the jury found Defendants
acted with a mental state comparable to that required for punitive
damages. The jury’s adverse’ finding on the Hate Crime claim, however,
does not compel the converse conclusion that the requisite mental
state was therefore lacking. On the contrary, there were any of
several alternative Hate Crime elements which the jury might have
found absent, such as that the Defendants "knew" or perceived
plaintiff’s sexual orientation to be homosexual, or that the battery
was committed "because of" plaintiff’s actual or perceived sexual
orientation. See 720 ILCS § 5/12~7.1(a)-(c) (incorporated into the
agreed jury instruction). The Hate Crime verdict thus does not, as
Defendants suggest, mean punitive damages were unavailable.

IIt. THERE IS NO INDICATION WHATSOEVER OF IMPROPER PASSION OR
PREJUDICE WHICH COULD JUSTIFY VACATING THIS AWARD

Put simply, given their lack of objections and generally
favorable rulings, there is nothing of any substance left for
Defendants to contest. Faced with no other basis for appeal,
Defendants presently contend that the Court erred in permitting
‘Plaintiff to make certain previously unchallenged arguments which they
now claim "inflamed" the jury. As discussed below, however, there was
nothing improper about any of Plaintiff’s arguments. Purely for the
sake of argument, even if there were -- which there was not -~
anything for Defendants to complain about, any objection they might
have otherwise raised was waived by their total failure to bring these
arguments to the Court’s attention at trial so that the Court could
have either foreclosed Plaintiff from making the arguments or, for
example, issued a curative instruction.

Moreover, as discussed below, the waiver point (while

dispositive for purposes of appeal) is really just an aside because

16



million punitive damage award despite only $19,000 in actual damages,
‘a.526:1 ratio. TXO Prod/n . Vv. Alliance Resou s Cc ., 509 U.S.
443, 452-62 (1993) ("we do not consider the dramatic disparity between
the actual damages and the punitive award controlling in a case of
this character"). There is thus nothing inherently wrong with ratios
of this nature which automatically suggests passion or prejudice. Id.

Compared to the 500:1 ratio of punitive to compensatory
damages rejected in BMW, and the 526:1 ratio affirmed in IxO, the
ratios here are 33:1 for Durst and 100:1 for Prusank. Defendants’
present argument that these ratios are so out of line that their
constitutional due process rights would be violated finds no support
in BMW, IXO, or any of the cases interpreting them.

Specifically, the Supreme Court "has never held that simple
“mathematical ratios are the be-all and end-all in punitive damages
analysis, and nothing in [BMW] would support such a rule." Shea v.

Galaxie Lumber & Const. Co., Ltd., 152 F.3d 729, 736 (7th Cir. 1998)

(upholding $2,500 punitive damage award which was 2,500 times greater
than the $1 of actual damages awarded); Cooper_v. Casey, 97 F.3d 914,
919 (7th Cir. 1996) ("While the limits that courts place on the size
of awards of punitive damages probably should be more definite and
predictable than under current law, a mechanical ratio. . . would not
make good sense") (citing BMW). As BMW itself made clear, the Court
has actually "consistently rejected the notion that the constitutional
line is marked by a simple mathematical formula, even one that
compares actual and potential damages to the punitive award. ...
“Indeed, 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." BMW, 517 U.S. at 582-83 ("In most cases, the ratio



damages"); Haluschak v, Dodge City of Wauwatosa, Inc., 909 F.2d 254,

256 (7th Cir. 1990) (where a jury verdict "meets this severe
[’monstrously excessive’] standard," trial court still must present
the plaintiff with the option of a reduction of damages or a new trial
on damages) .
Conclusion

Before trial, Defendants had referred to this case
derisively as the "slap" case. They can do so no more. The jury
accepted Plaintiff’s version that he was subjected to a completely
unprovoked (and cowardly) beating while his hands were shackled behind
him, a beating consisting of fifteen or more very hard blows which
caused him pain and months of well-documented emotional distress.
The fact that this beating did not physically bruise or disfigure
Plaintiff simply does not negate all basis for a significant punitive
damage award.

Had this Court been the factfinder, it may well have awarded
less punitive damages. But that is not the standard of review.
Where, as here, a jury has spoken (after more than a week of trial and
two days of deliberation) the jury’s determination can be disturbed
only under the most unusual circumstances. And to the extent there is
any room for a remittitur, the maximum recovery rule precludes
reduction to anything less than $75,000 per Defendant.

In sum, this was a hard-fought case from the beginning, and

in the end, Plaintiff successfully prevailed at a jury trial on the

merits. Defendants’ present attempt to have the Court substitute its

own judgment for that of the jury is unavailing.

31


that when he got to the station the following day, Prusank told him
that Plaintiff was still in the lock-up. Prusank was thus lying when
he testified that he had no idea Plaintiff was being held overnight.

For each of these.four reasons, there was thus no error in
permitting this evidence, much less unfair "prejudice" which could
justify reducing or vacating the punitive damage award.

6. UNSUSTAINED OPS COMPLAINT
Finally, Defendants argue -- again without having raised any

contemporaneous objections, see Doe By G.S. v. Johnson, 52 F.3d 1448,

“1465 (7th Cir. 1995) ("neither trial tactics nor mere temerity will

excuse counsel’s failure to object to a remark made in closing
argument") -- that Plaintiff’s argument about the unsustained C.R.
complaint was improper. Defendants are incorrect.

The primary strategy of the defense was to call into
question Plaintiff’s motivation in bringing this lawsuit, arguing that
he waited eight months to bring the suit. Defendants further urged
the jury to believe that Plaintiff was interested only in publicity or
money. Plaintiff responded by pointing out that he did not in fact
rush to the courthouse. On the contrary, he waited patiently for a
determination by the Defendants’ employers regarding his complaints of

abuse. Having failed to receive that measure of justice, Plaintiff

‘turned to the legal system. . There was nothing improper here.'*

Iv. THE JURY’S $15,000 COMPENSATORY DAMAGE AWARD WAS NOT EVEN
ARGUABLY THE PRODUCT OF IMPROPER PASSION OR PREJUDICE

Regardless of the resolution of the punitive damage award

issue, Defendants cannot -- and do not -- seriously contend that

10 Moreover, Defendants listed the OPS investigator on their FPTO
Witness List, and multiple C.R. documents were on their Exhibit List.
Plaintiff was entitled to address this evidence with his own take on
it, which is all that he did.

28



“monstrously excessive" or the award has "no rational connection to

the evidence." Liu _v. Price Waterhouse LLP, 302 F.3d 749 (7th Cir.

2002) (citations omitted); Holmes v. Elgin, Joliet & Fastern RR. Co.,
18 F.3d 1393, 1395 (7th Cir.: 1994). See also American Nat. Bank &

Trust Co. v. Regional Transp. Authority, 125 F.3d 420, 437 (7th Cir.

1997) ("Because damage calculations are essentially an exercise in
factfinding, our review of the jury’s damage award is deferential") .

Applying this highly deferential standard to this case,
Defendants are incorrect in arguing that the jury’s verdict runs afoul
-of the due process clause under the Supreme Court’s most recent

pronouncement on the issue, BMW of N. Am., Inc. v. Gore, 517 U.S. 559

(1996) (hereafter "BMW"). In fact, all three of the relevant
"guideposts" laid down by the Supreme Court in BMW directly support
Plaintiff’s punitive damage award in this case. 517 U.S. at 574-75.

B. ALL THREE BMW FACTORS FAVOR UPHOLDING THE SUBSTANTIAL
PUNITIVE DAMAGE AWARDED HERE

In BMW, the Supreme Court outlined three relevant factors
for assessing the propriety of punitive damage awards, none of which
warrant disturbing the jury’s verdict in this case. In the
alternative, if the Court does decide to reduce the jury’s award, no
reduction to any amount less than $75,000 per officer could survive
appellate review in light of application of the BMW factors. See
“Marek v. Stepkowski, 608 N.E.2d 285, 291, 241 Ill. App. 3d 862, 871 (1
Dist. 1992) ("The amount of punitive damages is in the sound
discretion of the trier of fact"); Ismail _v. Cohen, 899 F.2d 183, 185-
87 (2a Cir. 1990) ("It is well settled that calculation of damages is
the province of the jury").

1. DEGREE OF REPREHENSIBILITY/PRESENCE OF VIOLENCE

According to the Supreme Court, "perhaps the most important

indicium of the reasonableness of a punitive damages award is the



For example, of all of the hundreds of potential criminals
to arrest that morning, Prusank opted to send almost half of his
tactical team all the way across the North side of the City to
Plaintiff’s house straight from roll call. Defendants’ explanation --
that they had no leads or clues on any of the other potential
criminals except Plaintiff -- was inherently unbelievable. Defendants
further dissembled when they testified that it was relatively routine
to leave their district to make an arrest. On the contrary, Lt. Kuehn
testified Prusank needed special permission to leave the district and
Officer Broderick admitted that in his six year career, it has
happened only five to ten times. Kostecki later added that the
Defendants did not even wait for him to sign a complaint, which he
testified was necessary to make the arrest.

By its verdict, the jury signalled its belief that the
Defendants were not telling the truth about any of these points, not
to mention the jury’s fundamental conclusion that they had lied about
‘the beating itself. See Ibaenez v. Velasco, 2002 WL 731778, *13 n.8
(N.D.I1]1. April 25, 2002) (where defendants maintained innocence
throughout an excessive force case, "(t]he jury found that it was the
defendants who had lied. The jurors had to conclude that the
defendants were utterly without remorse for their outrageous
misconduct and the injuries they had caused. This is a factor that
weighs heavily in support of a large punitive damages award") .

II. THERE IS NO JUSTIFICATION FOR A REMITTITUR OF THE JURY'S

PUNITIVE DAMAGE AWARD OR, ALTERNATIVELY, ANY REDUCTION OF

THE AWARD SHOULD BE MINIMAL

A. JURIES HAVE CONSIDERABLE DISCRETION IN SETTING

DAMAGES, AND COURTS WILL DISTURB JURY DETERMINATIONS
ONLY WHERE AN AWARD IS "MONSTROUSLY EXCESSIVE"

It is well-settled that a jury "has wide discretion in

determining damages," and the Seventh Circuit has repeatedly held that

a trial judge may disturb a jury’s verdict only when the award was

4



the only improper “inflaming" at this trial emanated from the
Defendants, not the Plaintiff. Doe By G.S. v. Johnson, 52 F.3d 1448,
1465 (7th Cir. 1995) (party bears “a heavy burden when she seeks a new
trial based on improper remarks during a closing argument and from our
review of the record, we are of the opinion that Doe has not even come
close to meeting her burden").

A. DEFENDANTS HAVE WAIVED THE ARGUMENTS THEY OFFER IN
SUPPORT OF THEIR "PREJUDICE/PASSION" POSITION

The fact is, Defendants did not make a single objection
during Plaintiff’s entire closing argument. Defendants’ strategy of
waiting for the verdict before raising belated complaints about the
nature of Plaintiff’s arguments is unavailing, and Defendants cannot
-hope to make up for the lack of contemporaneous objections by
recasting their waived objections under the rubric of "passion or
prejudice". Any such argument was waived and thus barred. See
Martini v. Federal Nat. Morta. Ass’n, 178 F.3d 1336, 1340 (D.C.Cir.
1999) ("Although Fannie Mae also claims that the jury verdict should
be set aside because it improperly resulted from passion or prejudice,
Fannie Mae waived that claim by failing to object to allegedly
inflammatory statements by Martini’s lawyer at trial"); Doe By G.S. v.
Johnson, 52 F.3d 1448, 1465 (7th Cir. 1995) ("At trial, Doe’s counsel
made no objections to the defendants’ closing argument, yet now tries
to raise its impropriety on appeal. Any potentially improper
statements should have been called to the attention of the trial
.judge, in order that she might be given a timely opportunity to
correct any prejudice that might result from such remarks. The
plaintiffs’ failure to do so, waives this issue on appeal."); Deppe v.
Tripp, 863 F.2d 1356, 1363-65 (7th Cir. 1988) (party’s failure to
object to allegedly prejudicial closing argument supposedly appealing

to jury’s "base instincts" barred the nonobjector’s right to raise

17



and detain people because they are sworn to uphold the law. Zarcone
vy. Perry, 572 F.2d , 56-57 (2d Cir. 1978) ("the abuse of official
power here was intolerable, and when a jury has dealt with it
severely, as it should, we will not draw fine lines to restrain its
dispensation of justice"); Johnson v. Howard, 24 Fed. Appx. 480, 485-
87, 2001 WL 1609897, *3-*4 (6th Cir. Dec. 12, 2001) (higher degree of
reprehensibility where violence was "administered by someone in a
position of authority"). Far from, say, an employment dispute or a
product liability case, this is the sort of conduct for which punitive
damages are especially apropos. Q/Neill v. Krzeminski, 839 F.2d 9, 13
(2a Cir. 1988) ("A punitive award ’may be an integral part of the
remedy in a civil rights action’"); Carey v. Piphus, 435 U.S. 247, 257
n.11 (1978) (punitive damages may be awarded under Section 1983 to
deter or punish constitutional violations) .?

2. RATIO TO ACTUAL HARM INFLICTED

In BMW, the Supreme Court held that $2 million in punitive
damages was excessive in light of the low level of reprehensibility of
defendant’s conduct (not advising dealers of pre-delivery damage to
new cars when the cost of repair was less than 3% of cars’ suggested
retail price) coupled with the 500:1 ratio of punitive damages to the
$4,000 in compensatory damages. BMW, 517 U.S. at 574-75. The other

Supreme Court case cited by Defendants, however, affirmed a $10

2 Other far less reprehensible conduct in other contexts, for example,

has been deemed sufficient to support substantial awards. Compare,
e.g., Ciampi v. Ogden Chrysler Plymouth, Inc., 262 Ill. App. 3d 94,
634 N.E.2d 448 (2 Dist. 1994) ("As to the nature and enormity of the
wrong, Ogden’s statements were clearly intended to induce Ciampi to
purchase the LeBaron at a price considerably more than the car’s
worth. Ciampi paid even more for the LeBaron than the manufacturer’s
suggested retail price for the vehicle without 13,000 miles of usage.
We conclude that the award of $100,000 is both appropriate and
proportionate to the nature and the enormity of the wrong"); Howard v.
Zack Co., 264 Ill. App. 3d 1012, 1028, 637 N.E.2d 1183, 1194 (1 Dist.
1994) ($300,000 in punitive damages for retaliatory discharge despite
only $27,960 compensatory damages) .

7



e

Given all of this, Plaintiff’s closing argument did point
out to the jury that the digital image relied upon the Defendants
(which appeared to show no trauma) was unduly blue when contrasted to
the photocopy, which showed far more redness. Plaintiff also pointed
out that applying common sense, a digital image is subject to digital
manipulation. Such argument: was consistent with the Court’s
instruction to use common sense, and was nothing but fair advocacy.
Indeed, having failed to provide a shred of evidence supporting a
foundation for where the digital image came from, Defendants are
hardly in a position to condemn Plaintiff for speculating about the
possibility that it may well, not be what it purports to be. And
having denied Plaintiff the actual ability to show that the digital
image might have looked different on a different color setting,
Defendants are likewise off track in contending that Plaintiff could
not at least point out this possibility during argument. The lack of
any objection during that argument is the final nail in the coffin.

2. DEFENDANTS’ SUBPOENAS

Defendants’ FPTO Exhibit List included Plaintiff’s
subpoenaed phone records, work records, and therapy records;
accordingly, Plaintiff was certainly entitled to address this evidence
at trial. Also, when Defendants argued to the jury that it was this
litigation which was creating Plaintiff’s stress, not the alleged
beating, Plaintiff merely countered that to the extent this litigation
was in fact causing him stress, it was because of the manner in which
the case was being defended: His private phone records were being made
part of the public record, for example, and his employer received not
just one, but two subpoenas spaced several months apart under the
caption Waits v. Chicago. There was nothing even remotely improper
about Plaintiff’s argument here, which is why Defendants never raised
any objections during the trial.

23


IN THE UNITED STATES DISTRICT COURT |
» NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION

KENTIN WAITS,

laintde#y 33" iia BRN Dp,
Pianta, es 016 4010. Ep, iar
y. : nenee t TEB g

a ; SO et Judge Hibbler |? 2097.
CITY OF CHICAGO, CALLIE .L. BAIRD, and EEE TE ory
UNKNOWN CHICAGO: POLICE .OFFICERS , eo

i

okt 5

“Defendant

fg
NOTICE OF FILING FER ~ 4 7003
MICHAEL W. ocesins

ms CLERK, U.8. DISTRIGT COURT

Mike Monahan

Kim Brown

Asst. Corp. Counsel
30 N. LaSalle St.
Chicago, IL 60602

: Please take notice that on February 4, 2003 .I filed the
attached RESPONSE at. the United States Courthouse, 219 South
Dearborn in Chicago, IL. :

aa fof Plajititt

Jon Loevy

LOEVY' & LOEVY

434 West Ontario, Suite 400
Chicago, IL 60610

CERTIFICATE OF SERVICE

I, Jon Loevy, certify that on February 3,. 2003, I

delivered the above-referenced documents t above-named
counsel of record.
: /

Y

rc,



suffered by Plaintiff was relatively impermanent and the emotional
distress dissipated with time, punitive damages play an especially
important function because important constitutional principles are at
stake. Nydam v. Lennerton, 948 F.2d 808, 811 (1st Cir. 1991) ("A
punitive award ‘may be an integral part of the remedy in a civil
rights action’"), citing Smith v. Wade, 461 U.S. 30, 56 (1983).

As the Seventh Circuit has explained:

The smaller the compensatory damages, the higher the ratio of
punitive to compensatory damages has to be in order to fulfill
the objectives of awarding punitive damages. The compensatory
damages were low here in part because of the inherent
difficulties of fixing a dollar equivalent for subjective
injuries, such as fright and pain. An award of punitive damages
proportioned to the low compensatory damages that were awarded
would have a very meager deterrent effect, would fail to signal
to the prison authorities that savage treatment of prisoners will
not be tolerated, and would not be commensurate with the moral
gravity of the Defendants’ actions.

Cooper v. Casey, 97 F.3d 914, 919 (7th Cir. 1996); see also Ford v.

Herman, 316 Ill. App. 3d 726, 733-34, 737 N.E.2d 332, 339 (5 Dist.
2000) ("we have previously held that the amount’ of punitive damages
awarded does not need to be proportional, especially when a
proportional punitive damages award with a small compensatory damages
award would" constitute insufficient deterrence to others). The
Seventh Circuit added in Kemezy v. Peters:

Compensatory damages do not always compensate fully. Because
courts insist that an award of compensatory damages have an
objective basis in evidence, such awards are likely to fall short
in some cases, especially when the injury is of an elusive or
intangible character. If you spit upon another person in anger,
you inflict a real injury but one exceedingly difficult to
quantify. If the court is confident that the injurious conduct
had no redeeming social value, so that "“overdeterring" such
conduct by an “excessive award of damages is not a concern,,a
generous award of punitive damages will assure full compensation
without impeding socially valuable conduct. By the same token,
punitive damages are necessary in such cases in order to make
sure that tortious conduct is not underdeterred, as it might be
if compensatory damages fell short of the actual injury inflicted
by the tort.

79 F.3d 33, 34 (7th Cir. 1996). There is thus nothing "monstrously

excessive" about the 33:1 and 100:1 ratios here which implicate due

10


will be within a constitutionally acceptable range, and remittitur
will not be justified on this basis").

Looking to application of the BMW principles in other cases,
the 33/1 and 100:1 ratios which the jury returned here are no grounds

for concern. See, e.g., Blackledge v. Carlone, 126 F.Supp. 2d 224,

229 (D.Conn. 2001) ("The court finds that the 40-to-1 ratio here [in
‘an excessive force case] does not approach the “breathtaking 500 to 1”
ratio which the [BMW] Court concluded must surely ‘raise a suspicious
judicial eyebrow’" and "comports with the reprehensibility of
Carlone’s actions" in using violence against handcuffed/helpless
individual); Swick v. Liautaud, 169 Ill. 2d 504, 662 N.E.2d 1238 (I11.
1996) (affirming $400,000 in punitive damages against an individual
despite only $5,000 in damages --an 80:1 ratio-- for malicious
prosecution, interference with prospective advantage, and intentional

infliction of emotional distress); Weaver v. African Methodist
Episcopal Church, Inc., 54 S.W.3d 575, 589-90 (Mo. App. 2001)

(applying BMW and affirming $1 million punitive damages against an
individual person despite only $15,000 in actual damages for a 66:1
ratio, for grabbing a woman’s breast in the context of a history of
verbal and physical sexual harassment"); Cooper v. Casey, 97 F.3d 914,
919 (7th Cir. 1996) (total of $130,000 in punitive damages in beating
by prison guard where compensatory damages were only $5,000).
Moreover, the fact that BMW Court "found the 500 to 1 ratio
in that contract dispute to be ’breathtaking’. . .does not necessarily
control the fair ratios in a § 1983 case. . . [t]he Supreme Court’s
observations in [BMW] reinforce that view: violations of civil rights
may very well be ‘particularly egregious’ acts that result in only ’a
small amount of economic damages’ or injuries whose monetary value is

‘difficult to determine.’"

Lee v. Edwards, 101 F.3d 805, 809-11 (2d
Cir. 1996). Thus, in a case such as this one where the injury

9



Pa

ot

Defendants last-ditch argument that Plaintiff cannot recover
because he previously experienced depression in his life has no merit.
Plaintiff and his witnesses all testified without contradiction that
the unprovoked beating merely exacerbated what his therapist described
as a pre-existing vulnerability. Schroeder v. Hamilton School Dist.,
282 F.3d 946 (7th Cir. 2002)! ("It has long been the rule in tort law,

the ’thin-skull’ or ’eggshell-skull’ rule, not only that the

.tortfeasor takes his victim as he finds him, but also that

psychological vulnerability is on the same footing with physical").

In sum, Defendants make no contention that the jury’s
$15,000 compensatory damage award was the product of undue passion or
prejudice, nor do they seriously contend that there is insufficient
evidence to support it. As such, the jury’s determination must stand.
Nydam v. Lennerton, 948 F.2d 808, 811 (1st Cir. 1991) ("Translating
legal damages into money damages -~ especially in cases which involve
few significant items of measurable economic loss -- is a matter
peculiarly within a jury’s ken").

Vv. SHOULD THE COURT DECIDE TO DISTURB ANY OF THE DAMAGE AWARDS,

THE COURT MUST OFFER PLAINTIFF THE CHOICE OF A NEW TRIAL

LIMITED TO THE ISSUE OF DAMAGES

Relying on a case from 1893 about cattle abuse, Defendants
invite error by suggesting in footnote 1 of their Objection that this
Court should enter judgement for the "proper amount, if any" of a
reduced damage award without offering Plaintiff the choice of a new
trial on damages. The law is well-established in this Circuit, as
elsewhere, that the Court may not disturb a jury’s verdict without
first offering Plaintiff an opportunity for a new trial limited to
damages. See McNabola v. Chicago Transit Auth., 10 F.3d 501, 516 (7th
Cir. 1993) (cited by Defendants) (where party argued the verdict was
excessive, "the court appropriately provided McNabola the option

either of accepting the remittitur or receiving a new trial on

30


$15,000 in compensatory damages.is not supported by the evidence.

Defendants’ half-hearted argument in that regard must be rejected.
Specifically, there is no rule of law that compensatory

damages are unavailable for physical injuries unless there is

hospitalization or medical corroboration. E.g., Mendoza v. City of
Rome, 872 F. Supp. 1110 (N.D.N.¥ 1994) ($62,500 compensatory award

where plaintiff was slammed against police car and pushed into the
back seat of the vehiclé causing mental anguish but only limited
personal injuries)."

Moreover, even leaving aside the physical beating, there was
certainly enough testimony about Plaintiff’s emotional distress to
support a $15,000 verdict. Plaintiff, two of his friends, his
therapist, and an expert all testified without contradiction that
Plaintiff was affected very seriously by the beating.’*? Sulkowska v.
City of New York, 129 F.Supp. 2d 274, 308-09 (S.D.N.¥. 2001) (Section
1983 plaintiff who was humiliated during a false arrest and subsequent
detention and suffered from post-traumatic distress with accompanying
symptoms of depression, fear and disturbed sleep was entitled to
$275,000 for her emotional injuries, including past and future pain
and suffering). Compare Nekolny v. Painter, 653 F.2d 1164 (7th Cir.
1981) (cited by Defendants) (Plaintiff presented no witness or

evidence whatsoever that retaliation caused any distress) .

'\ Defendants mis-cite McNair v. Coffey, 279 F.3d 463 (7th Cir. 2002)
for the proposition that "lack of objective evidence to establish
injury defeats a claim the defendants used excessive force." See Def.
Obj. at 13. In fact, the McNair plaintiffs did not even allege

.excessive force, but rather only that they were "frightened" by the

number of police who participated in their otherwise valid arrest.
Id. at 465-68.

"2 Defendants never did call their expert witness, but he too would
have conceded that Plaintiff was accurately reporting genuine
distress. See Exhibit E, Dr. Yohanna’s Report.

29


degree of reprehensibility of the defendant’s conduct." BMW, 517 U.S.
at 575. Moreover, "[{ijn determining the reprehensibility of a

defendant’s wrongful conduct, an important factor is whether violence
has occurred." Id. at 576. See also Marshal) ex rel. Gossens v.
Teske, 284 F.3d 765, 772-73 (7th Cir. 2002) (punitive damages are
appropriate "in a Section 1983 case if [a jury] finds that the
defendants’ conduct was motivated by evil intent or callous
indifference to the plaintiff’s federally protected rights").

Viewing the evidence in the light most favorable to
Plaintiff, the jury determined here that while Prusank looked on
without intervening, Durst hit Plaintiff repeatedly in the face and
head while his hands were shackled behind his back, culminating in a
knee to the groin and an attempt to goad Plaintiff into a fight.
Unprovoked violence of this nature by a police officer against a man
whose hands are shackled could not be any more reprehensible. Cooper
v. Casey, 97 F.3d 914, 919 (7th Cir. 1996) ("We cannot think of a
better case for an award of punitive damages" than a "wanton and
cowardly attack" on prisoners who are shackled); Grimm v. Lane, 895
F.Supp. 907, 916-17 (S.D.Ohio 1995) (affirming more than $150,000 in
punitive damages for unprovoked beating while victim was handcuffed) ;
Q*’Neill v. Krzeminski, 839 F.2d 9, 13 (2d Cir. 1988) ($185,000 in
punitive awards were not excessive where plaintiff was hit about the
face while handcuffed as another officer watched, even absent
permanent physical or emotional injury) .'

Perhaps even more significant, however, is the fact that

Defendants are police officers, entrusted with the power to use arrest

‘ Moreover, the fact that Defendants had deliberately covered the

window to conceal their misdeeds is further evidence of evil intent.
BMW, 116 S.Ct. at 1599-1600 (conduct is more reprehensible, and thus
deserving of greater punishment, if the defendant knew or suspected
that it was unlawful).



resolution digital image they had downloaded to their laptop. The
first Plaintiff learned that there was a high-resolution digital image
was literally as Ms. Brown was showing it to the jury.

Seriously concerned to learn that Defendants had withheld
the existence of this digital file, Plaintiff, among other things,

moved to bar it as lacking in foundation. No witness ever gave the

slightest clue -~ either in discovery or at trial -- as to where this
digital image came from, much less whether it was presently in the
same form it was in when it was originally created, or whether it had
been digitally manipulated given that it certainly appeared to show
less redness than the photocopy supplied to Plaintiff.

Plaintiff’s foundation objection was overruled, although the
Court did agree to Plaintiff’s request that pefendants were to provide
Plaintiff a copy of the disk so at least the field would be even. The
Court denied Plaintiff’s request for an immediate production, but did
order Defendants to do what they could to get it to Plaintiff. When
several trial days passed without production, Plaintiff again brought
the issue to the Court’s attention and again asked for immediate pro-
duction. Defendants’ counsel, Mr. Monahan, stated to the Court that
the soonest he could have the disk copied would be Monday, immediately
before closing arguments. Over Plaintiff’s objection that this would
be far too late (after all of the witnesses were completed and not
allowing Plaintiff time to experiment with the color settings), the
Court ruled that a Monday production would be sufficient.

Disturbingly, when closing argument did not proceed on

Monday due to unforeseen circumstances, Defendants still did not

provide Plaintiff the disk. Plaintiff’s counsel faxed a letter to
Defendants’ counsel Monday morning asking for the disk, but Defendants
never even responded. See Exhibit C. Nor did they ever respond to a

similar letter later that afternoon asking to send a messenger to pick

20



«?

an order to continue therapy; the motion did not seek to bar any
references to the sentence itself. See id. at 6-7.

Moreover, to the extent there was any attempt to generate
unfair prejudice and passion’ on this point, the effort was by the
Defendants themselves. Plaintiff had moved in limine to bar
references to his prior bad act of squirting the police officer beyond
the fact that it happened. See Id, After persuading the Court to
deny that motion, Defendants’ entire trial strategy was devoted to
focusing the jury’s attention on the events which had occurred the day
before the alleged civil rights violations: the convenience store
water bottle purchase, Plaintiff’s decision to fight traffic to return
to the scene just to squirt the officer, disputed accounts of the
squirting itself, Plaintiff’s emotions and motivation in squirting the
officer, his reaction to the squirting, etc.

All of this, Plaintiff had argued in limine and at trial,
was an irrelevant distraction from the real issues for this civil
rights trial, namely, whether the Defendants used excessive force the
following day. Plaintiff’s in limine objections were realized when
Defendants proceeded to use this "prior bad act" evidence in exactly
the way it is not supposed to be used, i.e., to create the impression
that Plaintiff was a bad or crazy person, or that he "had it coming."
If there was in fact a relevant purpose to allowing such an in-depth
sideshow, Plaintiff cannot fathom what it was. Thus, given
Defendants’ wholly inappropriate strategy, it is difficult to believe
they are the ones complaining on this point.

5. OVERNIGHT DETENTION

The only one of these points to which Defendants did

preserve any objection was the 22-hour issue. There was no error,

however, in any of the Court’s rulings on this point.

26



IPSOS Publicite, 276 F.3d 914, 921 (7th Cir. 2002) ("this court will
not re-weigh the evidence; rather, we must view the evidence in the
light most favorable to the prevailing party [] and draw all
reasonable inferences in its favor"). Defendants’ factual
presentation, which reads just like their counsel’s unsuccessful
closing argument, relies improperly on factual inferences which have
already been soundly rejected by the jury.

B. THE VERSION oF THE FACTS ACCEPTED BY THE JURY

On July 22, 2000, Plaintiff Kentin Waits made a mistake.
He sprayed a Chicago Police Officer with his water bottle, an act
which eventually resulted in'a guilty plea to the charge of
misdemeanor battery.

The following morning, Plaintiff was arrested by, among
others, Defendants Durst and Prusank. During the transport to the
police station, Durst made threatening gestures and comments to
Plaintiff. As Plaintiff was being led into the station, the support
staff stood and applauded his capture.

Plaintiff was then locked in a small interrogation room with
‘a single window on the back of the door which, disturbingly, had paper
taped over it to prevent people from seeing what was happening inside
the room. Both of Plaintiff’s hands were cuffed behind his back and
then shackled to a metal bar about waist level. The Defendants
entered the room, closed the door, and began berating Plaintiff for
spraying Officer Kostecki. Plaintiff apologized for spraying the
officer and offered to apologize directly to Kostecki.

Thereafter, Durst began hitting Plaintiff’s face/head/neck
area approximately fifteen times with an open hand; the slaps were
hard and painful. Although his hands were shackled behind hin,
Plaintiff did his best to avoid the blows. At the conclusion of this

beating, Durst kneed Plaintiff in the groin causing additional pain

2



generous to WH, we do not believe that, given our deferential standard
of review, the district court abused its discretion in denying the
RTA’s motion for a remittitur or a new trial").

Finally, when considering this third BMW factor, the court
may look to the amount of punitive damages award necessary to deter

similar misconduct in the future. BMW, 517 U.S. at 584-85; McHugh yv.

Olympia Entertainment, Inc.,:' 37 Fed. Appx. 730, 738-40, 2002 WL
1065948 (6th Cir. May 28, 2002) ("Given the evidence of the

intentional assault upon plaintiff, the punitive damages [$1.2
million] were not an inappropriately large deterrent amount"). As the
Illinois Appellate Court? recently summarized in affirming a very
substantial punitive damage award:

The $6 million [punitive damage] award serves many important
purposes. The size of the monetary award might finally deter
Herman from driving while intoxicated where our criminal courts
have failed. Furthermore, the award should serve to deter other
individuals from risking the lives of innocents by driving while
intoxicated. Finally, the award adequately punishes this
particular defendant for his actions leading up to and including
this accident. Herman admitted that he knew he was intoxicated
after consuming eight or nine beers in a relatively short amount

. of time. . . . Given the outrageousness of Herman’s behavior, the
fact that the award clearly serves the punishment and deterrence
purposes of a punitive damages award, and the lack of proof that
the award was the result of passion, partiality, or corruption,
we conclude that the amount in question is not excessive.

Ford v. Herman, 316 Ill. App. 3d 726, 735-36, 737 N.E.2d 332, 339 (5

Dist. 2000).

If six million dollars was an acceptable punitive damage
award for a drunk driver in Illinois in Herman, a fraction of that is
certainly appropriate for an unprovoked beating of a handcuffed man by

an officer of the law. See NC Illinois Trust Co. v. First Illini

Bancorp, Inc., 752 N.E.2d 1167, 1179, 323 Ill. App. 3d 254, 267 (3

? Whether the damage award was adequately supported by the evidence is

evaluated under the Illinois law. Jabat, Inc. v. Smith 201 F.3d 852,
857 (7th Cir. 2000), citing Gasperini v. Center for Humanities Inc.,
518 U.S. 415, 438 (1996).

13


More importantly, the Defendants’ failure to raise the issue
‘of their finances at trial -- a conscious choice on their part -- is a
factor which cuts strongly against reducing the award at this
juncture. Kemezy, 79 F.3d at 34-37 (Since "information about net
worth is in the possession of the person whose net wealth is in issue,
the normal principles of pleading would put the burden of production
on the defendant"); Ford v. Herman, 316 Ill. App. 3d 726, 733-34, 737
N.E.2d 332, 339 (5 Dist. 2000) ("If [Defendant] knew that he would
have financial difficulties in paying a punitive damages award, then
he should have so informed the jury"). Additionally, Plaintiff cannot
be forced to rely on the newly-proffered, un-cross-examined
representations contained in Defendants’ untimely Affidavits. Despite
Plaintiff’s discovery requests (see, e.g., Exhibit A, § 1), Defendants
‘produced no documents relating to their net worth at any point during
discovery, nor are any such exhibits listed in the Final Pretrial
Order. Before the Court even considers a reduction on this basis,
Plaintiff should thus be permitted to serve discovery requests and
third party subpoenas to discover Defendants’ assets and net worth.

D. THE ADVERSE FINDING ON PLAINTIFF’S HATE CRIME CLAIM
DOES NOT PRECLUDE PUNITIVE DAMAGES

It is sometimes said that the strength of an advocate’s
position can be gauged by the persuasiveness of the weakest argument.
Applying that standard to Defendants’ argument about the Hate Crime

finding (Obj. at 11), Defendants position does not fare well at all.

4 (...continued)

damages in this case.
Ibaenez, 2002 WL 731778, at *15. Judge Grady added that this
conclusion is particularly appropriate where, as here, the jury’s
compensatory award is totally indemnified by a third party. Ibaenez
yv. Velasco, 2002 WL 731778, *15 (N.D.I1l. Apr. 25, 2002) ("The second
factor to consider is that the defendants will pay not one penny of
the compensatory verdicts"); Price v. Highland Community Bank, 932
F.2d 601 (7th Cir. 1991) (amount "which consisted of [defendant’s]
year’s salary" was well within bounds).

15



‘Introduction

As the Court itself explained to the eight members of our
community who agreed to sacrifice more than a week of their time to
serve as jurors for this case, the jury system is a very important
part of our constitutional system. In our democratic nation, civil
juries are explicitly entrusted with the responsibility to impose
their sense of justice via monetary judgments, judgments which a court
may reduce only enough to ensure they are not "monstrously excessive."

After hearing a week of testimony and then deliberating for
several days, the jury opted to credit Plaintiff’s version of the
events and reject that of Defendants. This conclusion (which was

unequivocal) was undeniably the jury’s prerogative. Moreover,

Defendants’ argument that the award should be reduced ignores ample

caselaw supporting punitive damage awards of this magnitude; to the
extent there is any room for’ a remittitur, the downward departure from
the jury’s verdict, if any, should be limited in light of this law.
Finally, there is no merit to Defendants’ suggestion that
the Court erred in permitting Plaintiff to make certain arguments
which Defendants now claim “inflamed" the jury. There simply can be
no dispute that the Court gave the Defendants every opportunity to
present their case to the fullest extent. Nothing about Defendants’
present complaints (the majority of which are being presented to the
Court for the first time, long after the conclusion of the trial, and

are thus waived) changes the reality that this trial was more than

fair to Defendants.

I. THE EVIDENCE PRESENTED AT TRIAL

A. DEFENDANTS’ VERSION

Defendants’ presentation of the facts suffers from a fatal
defect: they ask this Court to see the evidence in a light most
favorable to themselves, whereas it is Plaintiff who is entitled to

every benefit of the doubt at this stage. Research Systems Corp. v.



.vreferred to Plaintiff’s "psychiatric disorders,"

3. PLAINTIFF’S SUPPOSED "PSYCHIATRIC DISORDERS"

Defendants argue next that the Court erred in permitting
Plaintiff to argue that the Defendants’ response to the accusation of
police abuse in this trial was to "smear" Plaintiff by referring
repeatedly to his supposed “psychiatric disorders." There was no
objection any kind along these lines at trial, and had there been, it
would have had no merit whatsoever.

Plaintiff filed a motion to quash the Defendants’ Rule 35
mental health examination before trial, and he subsequently moved in
limine to par Defendants from parading "diagnoses" before the jury.
As Dr. Yohanna’s subsequent Report revealed, Defendants’ sole

intention was to attempt to "bootstrap" into the trial certain facts

-which they deemed embarrassing to Plaintiff. See Exhibit E.

Plaintiff believes his record is fully preserved that this
was not proper under the relevant caselaw. Plaintiff also believes he
made an adequate record that references to his phone records (a
subpoena which Plaintiff also timely moved to quash) should have been

barred, as should have been references to several categories of old

.therapy records and work records which Defendants also subpoenaed.

While the Court denied Plaintiff’s objections to these
Exhibits on the Final Pretrial Order ("FPTO") and Plaintiff’s motions
in limine on the subject, the Court presumably did not contemplate
what the Defendants proceeded to do at trial. In a case without any
eye witnesses where credibility was everything, Defendants constantly
‘ attempting to imply
that Plaintiff was a person who should not be believed. For instance,
after Krista Knigge testified for fifteen minutes about the pain her
friend had suffered, Mr. Monahan conducted a one-question
cross-examination, asking Ms. Knigge whether she knew Plaintiff

suffers from "four separate psychiatric diagnoses."

24



FILED
FER ~ 4 7093 °@

IN THE UNITED STATES DISTRICT cougg MICHAEL W. DoBEiNs
NORTHERN DISTRICT OF ILLINOIS, EASTERN 'c¥ Sy OISTRICT CounT

KENTIN WAITS,

Plaintiff,

v/)
01 ¢ 4010 soy Mey

v.
Judge Hibbler 95 2003

CITY OF CHICAGO, MICHAEL PRUSANK,
and DANIEL DURST,

Defendants.

PLAINTIFF'S REPLY IN SUPPORT OF ENTRY OF JUDGMENT
AND_IN RESPONSE TO DEFENDANTS’ OBJECTIONS

Arthur Loevy

Jon Loevy

Michael Kanovitz
Danielle Loevy
LOEVY & LOEVY

312 North May Street
Suite 100

Chicago, IL 60607
(312) 243-5900



RESPECTFULLY SUBMITTED,

Arthur Loevy

Jon Loevy

Michael Kanovitz
Danielle Loevy
LOEVY & LOEVY

312 North May Street
Suite 100

Chicago, IL 60607
(312) 243-5900


The Court stated on the record that it was allowing evidence
and argument on this point because by the time Defendants did object,
it was far too late in the trial, as there was already too much
testimony on the point. More importantly, however, there was nothing
wrong whatsoever about the presence of this issue in the case because
it was relevant for at least four independently admissible purposes.

First, the overnight nature of Plaintiff’s confinement
(roughly five times longer than other misdemeanants) is relevant to
rebut Defendants’ contention that this was a "normal" situation
treated just like any other arrest where the person is released after
booking simply by signing an I-bond. Second, Durst threatened
Plaintiff that he was going to meet sexual violence in his cell; for
damage purposes, Plaintiff was thus entitled to show that he spent 20+
hours waiting to see if Durst’s threat was going to materialize.
Third, Defendants argued that Plaintiff had no picture showing redness

to his face. To meet this argument, Plaintiff had to be permitted to

‘show that he was detained under usual circumstances without access to

his own camera for a period long enough for any swelling and redness
to have minimized.

Finally, and perhaps most importantly, Durst and Prusank
base their entire argument on their premise that after Durst dropped
Plaintiff with the booking officer Ortiz,? they had no further contact
with Plaintiff’s detention. In other words, Defendants insisted,
despite Prusank’s status as a supervisor, that they never knew

Plaintiff was being held unreasonably long. This testimony was

‘destroyed, however, by Officer Kostecki, who admitted on the stand

° ortiz’s testimony did Defendants no favors because he distinctly

remembered this booking -- down to the tone of Plaintiff’s skin --
among his many other bookings even though he never knew it was the
subject of a lawsuit until more than a year after the fact.

27


process or otherwise suggest undue passion. Plaintiff’s Seventh
Amendment right to trial by jury must prevail.
3. SANCTIONS FOR COMPARABLE MISCONDUCT AND THE
DETERRENCE FACTOR

Defendants surveyed the country looking for punitive damage
“awards less than this one. Such an argument, however, reflects a
misunderstanding of the law: the inquiry is not simply to look for
lower punitive damage awards, as the Court’s "task is not to balance
the number of high and low awards and reject the verdict in the
instant case if the number of lower awards is greater." Ismail v.
Cohen, 899 F.2d 183, 188 (2a Cir. 1990); Miksis v. Howard, 106 F.3d
754, 758 (7th Cir. 1997) ("defendants argue that the verdict in this
case is out of line with verdicts in similar cases. They cite a
number of cases in which lesser damages were granted. But these cases
prove nothing except that some plaintiffs have received less money
than Miksis; they do not show the current award to be ’monstrously
excessive’").

Turning to an examination of the range of permissible
punitive damage awards under circumstances comparable to those at bar,
it is plain that this award falls comfortably within the top end of
acceptable boundaries. Alternatively, as stated above, no reduction
to less than $75,000 per Defendant could be sustained.

Ford v. Herman, 316 Ill. App. 3d 726, 735-36, 737 N.E.2d 332, 339

(5 Dist. 2000) (upholding $6,000,000 punitive damage award
against drunk driver under Illinois law);

McHugh v. Olympia Entertainment, Inc., 37 Fed. Appx. 730, 738-40,
2002 WL 1065948 (6th Cir. May 28, 2002) (upholding $1,200,000 in
punitive damages where plaintiff was beaten up by law enforcement
officials); ‘

Adelman v. Adelman, 191 Misc. 2d 281, 288, 741 N.Y.S.2d 841, 848
(N.Y. Sup. 2002) (applying BMW and affirming punitive damages
award of $2,250,000 for shooting plaintiff despite no
compensatory damage award) ;

11



Dist. 2001) (punitive damages serve to "deter others from similar
conduct"); Sabir v. Jowett, 214 F.Supp. 2d 226, 235-36 (D.Conn. 2002)
("The jury, however, may have partly intended to punish Lisee for
violating Mr. Sabir’s rights to deter others in law enforcement from
similar conduct").

Cc. DEFENDANTS’ PROFESSED INABILITY TO PAY DOES NOT
JUSTIFY DISTURBING THE JURY’S PUNITIVE DAMAGE AWARD

Defendants argue in their post-trial motion that the Court
should consider their financial status in considering a reduction of
the award. While it might sound harsh, Judge Posner has explained
that: "[t]he reprehensibility of a person’s conduct is not mitigated
by his not being a rich person, and plaintiffs are never required to
apologize for seeking damages that if awarded will precipitate the
defendant into bankruptcy." Kemezy v. Peters, 79 F.3d 33, 35-37 (7th

Cir. 1996); see also Stafford v. Puro, 63 F.3d 1436, 1444 (7th Cir.

1995) (awarding $250,000 punitive damages despite defendant’s
assertion that he had no assets). Moreover, because judgments in
Illinois "are good for seven years and may be revived" for another
twenty, the Court should not limit its analysis to whether paying the
full amount today is feasible. See Ibaenez v. Velasco, 2002 WL
731778, *15 (N.D.I11. Apr. 25, 2002) ("For that punishment to be
meaningful, the court should sustain amounts of the punitive verdicts
that are realistically collectible against the defendants over a
reasonable period of time in the future" in case involving excessive

force) (citing FRCP 69(a); 735 ILCS 5/12-108(a) & 5/13-218) .4

‘As Judge Grady eloquently explained in Ibaenez:

So the fact that the defendants may be financially unable to pay
a large amount at the present time, if it be a fact, does not
mean that their exposure should be limited to what they are
currently able to pay. Their ability to pay over a period of
years is the relevant test, and there is no reason the defendants
should be absolved from a long-term responsibility for punitive

: (continued...)

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