In the

United States Court of Appeals

For the Seventh Circuit

Nos. 08-2467 & 08-2595

ALEJANDRO DURAN, et al.,

Plaintiffs-Appellees/

Cross-Appellants,

v.

TOWN OF CICERO, ILLINOIS,

Defendant-Appellant/

Cross-Appellee,

and

DINO VITALO and WILLIAM PESLAK,

Defendants-Appellees.

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 01 C 6858—John F. Grady, Judge.

ARGUED FEBRUARY 17, 2010—DECIDED AUGUST 9, 2011

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Before RIPPLE, MANION, and SYKES, Circuit Judges.

SYKES, Circuit Judge. These appeals come to us following

a complex jury trial in a lawsuit brought by scores of

individual plaintiffs against 17 police officers and the

Town of Cicero, Illinois, alleging federal civil-rights

violations and various state-law torts. The claims arose

out of an ugly confrontation between officers of the

Cicero police force and nearly 100 partygoers—most of

Mexican descent—who were celebrating a baptism at a

Town of Cicero home. Responding to neighborhood

complaints about the party, officers arrived on the scene

and first attempted to quiet and later to disperse the

crowd. Some of the revelers objected to these efforts, and

after a period of escalating tension between police and

the party guests, a full-blown melee ensued. By night’s

end many people—officers and civilians alike—were

injured, and seven people were placed under arrest.

In the wake of this incident, 78 of the partygoers filed

suit against 17 officers and the Town alleging a raft of

federal and state causes of action, including claims

under 42 U.S.C. § 1983 for use of excessive force, false

arrest, and deprivation of equal protection, and statelaw tort claims for battery, malicious prosecution,

hate crimes, and evidence spoliation. Complicating matters, different plaintiffs pursued different claims

against various combinations of individual named

officers, unidentified officers, and the Town. Needless to

say, trying this unwieldy case presented many challenges. The trial took six weeks, and in the end the jury

returned sizable verdicts in favor of 23 of the plaintiffs

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against six of the individual officers and the Town.

The district court entered judgment on the verdicts, but

the judgment appears to permit 13 of the 23 successful plaintiffs to recover twice for the same injury on

their state-law claims—once from the individual officer

who was found liable and again from the Town. The

Town filed a timely motion under Rule 59(e) of the

Federal Rules of Civil Procedure to correct this error, but

the district court denied the motion. The Town appealed,

and the plaintiffs cross-appealed on a handful of evidentiary issues.

The Town’s objection to the judgment is well-taken;

the Town’s liability for the state-law claims against its

officers is based on respondeat superior and is therefore

joint and several. The judgment does not reflect this

and thus can be read to permit double recovery. As we

will explain, this error flowed from confusing jury instructions and an improperly crafted special-verdict

form. We reverse and remand with instructions to

amend the relevant portions of the judgment. We reject

the arguments raised in the plaintiffs’ cross-appeal. The

challenged evidentiary rulings do not reflect an abuse

of discretion.

I. Background 

A. Town of Cicero Police Forcibly Break Up a

Boisterous Party

On September 2, 2000, Alejandro and Maria Duran

hosted a party at their Town of Cicero home in honor of

their daughter’s baptism. At its peak there were close

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to 100 guests at this event. During the course of the evening, the Cicero Police Department received two

separate telephone complaints from neighbors upset

about the party. The police response to the second call

was tense and eventually turned violent.

Officer Robert DeCianni was dispatched to the Duran

home to deal with the second call. He had been there

only moments earlier to handle the first complaint

about improperly parked cars. Almost as soon as

DeCianni approached the front yard, he found himself

embroiled in a heated verbal exchange with partygoers

who were celebrating outside the home. The source of

this tension was disputed at trial. According to testimony

from some of the plaintiffs, DeCianni was in a foul and

belligerent mood as soon as he reappeared on the scene.

Using racially insensitive language interspersed with

profanity, he crudely ordered the Durans to shut the

party down. In contrast, under the Town’s version of

events, the party guests were initially hostile and combative toward DeCianni.

Both sides agree that the situation soon became completely unmanageable. DeCianni called for backup, and

as the verbal jousting intensified, even more reinforcements were requested. Within several minutes, Cicero’s

entire on-duty police force was present outside the

Duran home, accompanied by members of neighboring

police departments. The name-calling and agitation persisted on both sides. The officers amassed outside the

Duran home eventually entered the property through

the front gate. Again, the rationale for this decision

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was disputed at trial. The officers claimed they were

attempting to arrest Gonzalo Duran, Alejandro’s brother,

for throwing a beer bottle at DeCianni. The plaintiffs

maintain that the officers’ actions were animated by

antipathy against the party guests based on their

Mexican descent.

Whatever the cause, the police presence on the

Duran property was inflammatory, and a violent melee

broke out almost immediately. The police used pepper

spray, night sticks, and other forms of physical force

to subdue combative partygoers and compel the rest to

move indoors. The 78 plaintiffs in this case—including

men, women, and children—claimed they suffered

various injuries at the hands of the police. At least five

police officers received medical treatment for bites and

bruises sustained in the altercation. Seven of the plaintiffs here—Alejandro Duran, Armando Duran, Adolfo

Duran, Gonzalo Duran, Joel Uribe, Heriberto Uribe, and

Juan Carlos Uribe—were arrested. Juan Carlos Uribe

was released without being charged. Misdemeanor complaints were issued against Heriberto and Joel Uribe

for obstructing a peace officer, but these charges were

never prosecuted. The four Duran brothers were prosecuted on charges of battery and obstructing or resisting

a peace officer; they were acquitted by a jury.

B. The Litigation

As we have noted, 78 of the partygoers filed suit against

17 individual officers and the Town of Cicero. The complaint accused the individual defendants of various

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constitutional violations under 42 U.S.C. § 1983 (excessive

force, due process, equal protection, and false arrest)

and several intentional torts under Illinois law (malicious

prosecution, battery, hate crimes, and intentional infliction of emotional distress). The complaint also alleged

that the Town was liable under § 1983 for maintaining

a policy of indifference to the use of excessive force by

its officers, see Monell v. Dep’t of Soc. Servs., 436 U.S. 658

(1978), and also for spoliation of evidence (more about

this in a moment). In addition, the plaintiffs claimed

that the Town was vicariously liable under the doctrine

of respondeat superior for the state-law torts committed

by its officers.

The Town’s role in this case became needlessly complicated and warrants further explanation. Prior to trial

the Town formally waived its right to contest its liability

under § 1983 and stipulated to the entry of judgment in

the nominal amount of $1.00 in favor of any plaintiff

who prevailed against an individual defendant on any

federal claim. The district court accepted this stipulation,

which made it unnecessary to submit the Monell policy

claim to the jury. Also before trial the district court

entered an order that the evidence-spoliation claim

would be tried after the jury had rendered its verdicts on

all of the other claims. The rationale for this sequential

approach was that the spoliation claim might not need

to be tried at all based on the jury’s verdicts on the other

claims. Finally, the Town conceded that all of the individual officers were acting within the scope of their employment during the altercation at the Duran home. This

concession amounted to a stipulation that the Town

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would be jointly and severally liable under principles of

respondeat superior for any judgment entered against

any individual officer on any of the state-law claims. But

the Town’s conceded vicarious liability extended even

further. Some of the plaintiffs were pursuing state-law

tort claims against unidentified officers—either alone or

in addition to their claims against specifically identified

officers. The Town accepted respondeat superior liability

for any torts committed by unnamed officers as well.

Understandably, the sheer enormity and factual complexity of this case posed many challenges for the district

court. The parties tried to streamline presentation of the

case by providing a customized chart to serve as a reference for the jury throughout the trial. The chart listed

all the individual plaintiffs vertically on the left-hand

side and all of the claims horizontally across the top. If

a plaintiff made a specific claim against a particular

defendant, that defendant’s initials were written in the

appropriate box created by this grid. On this visual depiction of the claims, many boxes on the chart contained

multiple initials and others were left completely blank.

For reasons unknown, although the Town’s liability

had been stipulated, one of the claims listed on the horizontal axis of the grid was the “Town of Cicero Claim.”

The trial itself focused on the eyewitness testimony of

the plaintiffs and the police officers who were present at

the Duran home on the evening of the baptismal party.

The plaintiffs also presented two video recordings to the

jury. The first video—shot by Luis Castaneda, a professional videographer hired by the Durans to record the

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baptism and party—captured some of the initial altercation, but its overall usefulness was limited by the

fact that it was confiscated by a police officer just

before the verbal confrontation turned physical. The

other video—shot by Onofre Barajas, a neighbor of the

Durans—displayed some of the physical altercation, but

its effectiveness was hampered by the poor quality of

the footage. The plaintiffs also claimed there was a third

video—one shot by Eduardo Gudino, another neighbor

of the Durans—that most fully corroborated their

account of police brutality. Gudino testified that when

the police noticed he was videotaping the altercation,

they chased him down, beat him, and forcibly confiscated

his camera and videotape. Although Castaneda’s videotape was returned, Gudino’s was not; these two tapes

formed the basis of the plaintiffs’ spoliation claim.

Gudino also filed a separate lawsuit based on the forcible

confiscation of his camera and videotape, which was

tried with the plaintiffs’ spoliation claim.

After six weeks of trial on all claims except those

relating to the confiscated videotapes, the case was submitted to the jury. The jury instructions were confusing

and the special-verdict form was flawed, for reasons we

will later explain. For now, it is enough to say that the

court submitted the claims against the Town to the jury

under an umbrella heading of “state law claims against

the Town of Cicero,” and the jury was asked to assess

damages separately against the Town—even though the

Town’s liability had been stipulated and was wholly

vicarious to that of the officers.

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The judgment in favor of Gudino is not at issue on appeal. 1

The jury returned verdicts in favor of 23 of the 78 plaintiffs against some of the officers and the Town.

Judgment was entered on the verdicts, paving the way

for trial on the evidence-spoliation claims and Gudino’s

claim based on the forcible confiscation of his camera.

The defendants moved to exclude the confiscation of

Castaneda’s videotape from consideration as evidence

of spoliation; they argued that under Illinois law, preventing the creation of evidence is not actionable as a

failure to preserve evidence. The court granted the motion,

which shortened this final phase of the proceedings.

Trial on the spoliation claim was completed in just a day,

and that evening the jury returned a verdict in favor of

Gudino and some of the plaintiffs.1

At this point the defendants noticed that the judgment entered the previous day might impermissibly

allow some of the prevailing plaintiffs to secure a

double recovery. As we have noted, because the specialverdict form asked the jury to award damages separately

against the Town and any officer found liable on any of

the state-law claims, the judgment reflected that 13 of

the plaintiffs received separate awards—against individual police officers and the Town—for the same underlying injury. In an effort to prevent what it called “double

counting,” the Town timely filed a motion to amend

the judgments pursuant to Rule 59(e) of the Federal

Rules of Civil Procedure. The district court denied this

motion; the court said the Town had waived its argument

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about joint and several liability. The Town appealed, and

the plaintiffs filed a cross-appeal challenging several of

the district court’s trial rulings.

II. Discussion

The Town’s appeal challenges only the district court’s

denial of its Rule 59(e) motion to amend the judgments.

The plaintiffs’ cross-appeal raises three issues. First,

the plaintiffs contend that the district court erred in

excluding the confiscation of the Castaneda videotape as

a basis for their evidence-spoliation claim under Illinois

law. They also object to the district court’s exclusion of

certain evidence regarding two of the defendant officers—specifically, prior complaints of misconduct filed

against Officer Dino Vitalo, and Officer William Peslak’s

unrelated civil-rights conviction under 18 U.S.C. § 242.

A. The Town’s Appeal

The Town renews the substance of its Rule 59(e) request

to amend the judgment to reflect that the Town and its

officers are jointly and severally liable for the damages

awarded to each plaintiff who prevailed on a statelaw claim. Resolving this issue requires us to identify

some fundamental missteps in the way these claims

were submitted to the jury.

From the beginning, the plaintiffs sought to hold the

Town liable on the state-law tort claims under the doctrine

of respondeat superior. That is, the Town would be

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vicariously liable for the torts of its officers if their

actions were undertaken within the scope of their employment. See Adames v. Sheahan, 909 N.E.2d 742, 754 (Ill.

2009). Before trial the Town stipulated that its officers

were acting within the scope of their employment

during the altercation at the Duran home. As a result

there were no factual issues for the jury to decide in connection with the Town’s liability on the state tort

claims. Based on the scope-of-employment stipulation,

the Town would be liable to any plaintiff who prevailed

against an individual officer on any of the state tort

claims. This liability would be joint and several, not

cumulative; the Town and the individual officer would

be jointly and severally liable for whatever sum of

money the jury awarded as damages to compensate any

individual prevailing plaintiff for his injury. That is, if

any officer was found liable to an individual plaintiff,

the Town’s vicarious liability would flow as a matter of

law from its pretrial stipulation, but jointly and to the

extent of the officer’s liability, not for an additional

amount. Accordingly, the issue of the Town’s liability

should not have been submitted to the jury at all; once

the Town entered its stipulation on the scope-of-employment issue, its liability became solely a postverdict

legal matter for the court.

In Illinois, as elsewhere, a plaintiff may “receive only

one full compensation for his or her injuries, and double

recovery for the same injury is not allowed.” Thornton

v. Garcini, 928 N.E.2d 804, 811 (Ill. 2010). Although the

jury instructions alluded to this principle, they did so in

a way that sowed confusion, and this confusion was

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compounded by the special-verdict form. In relevant

part the jury was instructed as follows:

The defendant Town of Cicero is legally responsible

for the acts of its employees committed within the

scope of their employment. The town agrees that the

defendant police officers were acting within the

scope of their employment by the Town, and therefore, if you find in favor of a plaintiff and against any

of the defendant officers on any of the state law

claims, the amount of damages that you award the

plaintiff against that individual defendant should

also be awarded against the defendant Town. This

does not mean that the plaintiff would receive a double

recovery; it simply means that the individual defendant

and the Town would be jointly liable for the amount of

your verdict against the individual defendant.

(Emphasis added.). This instruction was perplexing. Why

was the jury being asked to assess damages against individual officers and the Town for the same injury? The

jury was obviously confused. During deliberations, the

foreman sent the following question to the district judge:

Dear Judge—In awarding compensatory damages,

if we find in favor of the plaintiff under multiple

state law claims, is the town liable for half of the total

amount? Here’s an example of how we understand it:

Find in favor of Plaintiff A on State Law Claim #1

and State Law Claim #2. And we feel it should be a

total of $30. With us feeling that $20 on State Law

Claim #1 & $10 on State Law Claim #2, would we find

State Law Claim for Defendant Claim #1 $10 +

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Defendant on Claim #2 $5 + Town $15 = $30.

Thanks—The Jury. Jeffrey Hansen 2/14/08 11:40 a.m.

The judge responded by restating the instruction we

have just quoted, followed by this:

Now, let me turn to your specific question that you

wrote out. The answer is you return a verdict against

the town for $30, because that is the total of the two

amounts that you have returned for that plaintiff

against that defendant on two separate claims. You

don’t assess the town half of the amount. You assess

the town 100 percent of the amount.

And the town is jointly liable. It’s not liable in addition

to the individual defendants for the same amount

so that you guys could be talking about $60. No. It’s

only $30, but you have two defendants responsible

to pay it, one, the individual defendant, and two, the

town. 

(Emphasis added.)

There are two problems with this approach. First, as

we have noted, once the Town conceded that its officers

were acting within the scope of their employment,

the Town’s liability on the state tort claims became a

postverdict legal issue for the court; the jury should not

have been asked to answer any questions about the Town’s

liability in the first place. Moreover, damages are not

assessed “by defendant” or “by claim” but “for” an injury.

See Thomas v. Cook Cnty. Sheriff’s Dep’t, 604 F.3d 293, 315-

16 (7th Cir. 2010) (Sykes, J., dissenting). Where a plaintiff

has suffered a single, indivisible injury (as is ordinarily

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the case and was true here on each of the state tort

claims), the jury’s task is to award a sum of money to

compensate the plaintiff for that injury, not to enter a

damages award against each defendant who is or will

be liable on the judgment. Id. Complicating an already

difficult case, here the jury was asked to determine damages on a defendant-by-defendant basis and also separately for the Town. This was error, and it led

directly to the problem of double recovery belatedly

identified by the Town.

It is true the Town itself proposed the flawed specialverdict form. It is equally true, however, that everyone—the court and all the parties—proceeded on the

understanding that the Town’s liability on the statelaw claims was vicarious only, and knew that the Town

would be jointly liable for the damages awarded to any

individual plaintiff on any of the state-law claims, not

for an additional amount. Thus, although the jury was

(mistakenly) instructed to enter separate damages

awards “against” individual officers and “against” the

Town, it was also told that the same amount awarded

against any individual officer should also be awarded

against the Town. The judge advised the jury that

this would not result in double recovery, but instead

the officer and the Town would be jointly liable for a

single damages award on each claim. No wonder the

jury was confused; on the matter of the Town’s liability,

it was asked to engage in a pointless enterprise.

Here are the resulting awards on the state-law claims:

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 Plaintiff

 (Column A)

Compensatory

Damages

Awarded

Against

Individual

Officers

 (Column B)

 Compensatory

Damages 

Awarded

Against the

Town

(Column C)

 Alejandro Duran $575,000 $675,000

Adolfo Duran $585,000 $585,000

Anna Maria Duran $100,000 $100,000

Gonzalo Duran $120,000 $120,000

Luz Maria Pineda $40,000 $40,000

Ignacio Rodriguez $100,000 $100,000

Javier Rodriguez $25,000 $25,000

Ruben Pineda $75,000 $100,000

Joel Uribe $25,000 $25,000

Heriberto Uribe, Sr. $25,000 $25,000

Juan Carlos Uribe $25,000 $25,000

Silvia Pineda $25,000 $25,000

Armando Duran $25,000 $25,000

Amada Duran — $40,000

Daniel Pineda — $15,000

Alma Rodriguez — $10,000

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Kathy Bonilla — $10,000

Maria Concepcion Duran — $100,000

Juana Maribel Escareno — $12,500

Jose Refugio Paredes — $25,000

Amanda Paredes — $10,000

Jose Paredes — $10,000

Juana Soto Uribe — $50,000

The dashes appearing in Column B reflect the state-law

claims against unidentified officers for injuries suffered

by the plaintiffs listed in Column A. (Recall that the

Town had accepted vicarious liability for the torts of the

unidentified officers when it stipulated that all of its

officers were acting in the scope of their employment.) The

proper way to submit the state-law claims to the jury

would have been to ask the liability questions first

using “John Doe Officer” or a similar designation to

determine the liability of the unnamed officers. Then

the jury should have been asked to enter a single

damages award to compensate each plaintiff for his or

her injury, not to enter separate damages awards

“against” each defendant—whether an individual officer

or the Town.

Although the verdict form was flawed, it appears that

the jury tried to comply with the court’s specific instruction that the amount awarded against any individual

officer should also be awarded against the Town. This

can be inferred from the fact that 11 of the 13 plaintiffs

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Ruben Pineda was the only other plaintiff who received 2

a greater amount in Column C than in Column B.

who had claims against identified officers (these 13 plaintiffs are listed in bold) received a compensatory-damages

award against an individual officer (Column B) and the

Town (Column C) in exactly the same amount. For two

of these plaintiffs, however, the award in Column C is

greater than the award in Column B. For example,

Alejandro Duran received a damages award of $550,000

on his malicious-prosecution claim against Officer

Michael McMahon and another $25,000 on his emotionaldistress claim against Officer Walter Wirack. This total

of $575,000 is reflected in Column B, yet the jury

awarded him $675,000 against the Town. The likely

explanation for this extra $100,000 is that the jury was

awarding compensation for a separate injury Alejandro

Duran suffered at the hands of an unidentified officer.2

Moreover, ten plaintiffs (the ones not listed in bold)

received damages awards against the Town despite not

having prevailed against an individually named officer.

Because the Town’s liability is derivative, the jury was

obviously compensating these ten plaintiffs on claims

for injuries they suffered at the hands of unidentified

officers.

Given the confusing verdict form and instructions,

the jury should be commended for managing as well as

it did. The judgment entered on the verdicts, however, did

not reflect the joint and several nature of the Town’s

liability. For example, on plaintiff Javier Rodriguez’s

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As an alternative, the Town might have filed a Rule 60(b)(5) 3

motion to account for the double-recovery problem. After

paying the $25,000 award to Javier Rodriguez (for example),

the Town might have filed a Rule 60(b)(5) motion for relief

from any further obligation to Rodriguez based on satisfaction

of the judgment.

battery claim, the district court entered judgment in

favor of Rodriguez and against Officer Peslak in the

amount of $25,000, and in favor of Rodriguez against the

Town in the amount of $25,000, without any mention

that this liability is joint and several. This appears to

permit Rodriguez to recover twice—once from the Town

and once from Peslak—for the same injury. 

A motion to alter or amend a judgment under Rule 59(e)

may be granted to correct a manifest error of law or fact.

Harrington v. City of Chicago, 433 F.3d 542, 546 (7th Cir.

2006). A judgment that can be read to allow a plaintiff

to recover twice for the same injury contains a manifest

error of law. The Town’s Rule 59(e) motion proposed

nothing more than an obvious fix for a glaring doublerecovery problem in the judgment.3

In denying the Rule 59(e) motion, the district court held

that the Town had waived any right to relief by not

objecting at trial to the verdict form or jury instructions

that gave rise to the confusing judgment. This waiver

rationale misses the point. True, the Town bears some

responsibility for the flawed special-verdict form. Still,

“it’s the judge’s responsibility to get the verdict form

right, not just pick one side’s proposal or the other’s.”

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Thomas, 604 F.3d at 315 (Sykes, J., dissenting). In any

event, the Town’s Rule 59(e) motion was directed at a

legal error in the judgment (not the verdict form), and

here there can be no principled disagreement that the

judgment fails to reflect what everyone understood

from the beginning: that the Town would be jointly

liable (if liable at all) to any plaintiff who prevailed on

a state tort claim against an individual officer, whether

identified or unidentified. The Town did not waive

this legal point about the nature of its liability. The

Town’s timely Rule 59(e) motion identified a manifest

error of law that surfaced only after judgment was entered. See Cnty. of McHenry v. Ins. Co. of the West, 438

F.3d 813, 819 (7th Cir. 2006).

Beyond defending the court’s misplaced waiver rationale, the plaintiffs advance one other argument for

leaving the judgment as is. They cite Zivitz v. Greenberg,

279 F.3d 536, 540 (7th Cir. 2002), for the proposition that

double recovery should not be presumed where the jury

could reasonably have based its verdict on separate

injuries sustained by the plaintiff. The plaintiffs suggest

that the jury might have intended all the awards listed

above in Column C to represent damages awarded to

the prevailing plaintiffs for torts committed by unidentified police officers. There is nothing in the record to

support this interpretation of the jury’s verdict. To the

contrary, the jury was specifically instructed that the

amount of damages it assessed against any individual

officer must also be assessed against the Town; we

assume that the jury followed this instruction. See Laxton

v. Bartow, 421 F.3d 565, 573 (7th Cir. 2005) (“We must

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presume that the jury followed all the instructions it

was given.”). The verdict reflects that the jurors

followed this guidance. The surest indication of this is

the fact that with two exceptions, every plaintiff who

received an award against an individual named officer

on a state-law claim (reflected in Column B) received

an award against the Town (reflected in Column C) in

an identical amount as that awarded against the

individual officer. Where the award against the Town is

higher, or where a plaintiff received an award against

the Town but not an individual officer, the logical

inference is that the difference reflects compensation for

an injury inflicted by an unidentified officer. Given

how this case was submitted to the jury, this is the only

sensible way to interpret the verdict.

In sum, it is reasonably clear what the jury did—or at

least what it was trying to do. And it is abundantly clear

that the judgment must be amended to avoid the possibility of double recovery. On remand the court should

clarify that the damages the jury assessed against the

Town and the individual officers are not to be

aggregated; the judgment should reflect that the Town

is jointly liable for a single damages award in favor of

each plaintiff who prevailed on a state-law claim.

B. Plaintiffs’ Cross-Appeal

In their cross-appeal the plaintiffs challenge three

rulings the district court made during trial: (1) the court’s

decision to exclude the Castaneda videotape as a basis

for the evidence-spoliation claim; (2) the exclusion of

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misconduct complaints against Officer Vitalo under

Rule 404(b); and (3) the exclusion of Officer Peslak’s

unrelated civil-rights conviction. We address each of

these rulings in turn.

1. Spoliation of Evidence

After the jury returned its verdict on the federal civilrights claims and most of the state tort claims, the plaintiffs were then in a position to proceed with their cause

of action for spoliation of evidence. Because some of the

defendants prevailed on claims that arguably could have

gone the other way, the plaintiffs could argue that the

result might have been different had certain evidence

not been destroyed. They were allowed to argue that the

disappearance of the allegedly incriminating videotape

shot by Eduardo Gudino (the Durans’ neighbor) and

confiscated by the officers was actionable as tortious

spoliation of evidence. However, they also sought to

include the video taken by Luis Castaneda as part of

their spoliation claim. Castaneda, it will be remembered,

was the professional videographer hired by the Durans

to record the baptism and party. The plaintiffs alleged

that Castaneda was wrongfully forced to turn over

his video camera to the police just before the officers

deployed pepper spray, escalating what had been a

verbal altercation into a physical one. They wanted to

argue that had Castaneda’s camera not been confiscated,

he would have recorded this pepper-spray incident and

everything that happened afterward.

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The district court held that the confiscation of

Castaneda’s camera and videotape was not evidence of

spoliation because it did not involve the destruction of

or failure to preserve evidence; at most Castaneda was

prevented from creating what might have become evidence. This ruling was manifestly correct. Under Illinois

law spoilation of evidence is treated as a negligence

action. Boyd v. Travelers Ins. Co., 652 N.E.2d 267, 270-71

(Ill. 1995). The Supreme Court of Illinois has explained:

The general rule is that there is no duty to preserve

evidence; however, a duty to preserve evidence may

arise through an agreement, a contract, a statute . . . or

another special circumstance. Moreover, a defendant

may voluntarily assume a duty by affirmative conduct. In any of the foregoing instances, a defendant owes a duty of due care to preserve evidence

if a reasonable person in the defendant’s position

should have foreseen that the evidence was material

to a potential civil action.

Id. at 270-71 (citations omitted).

Actionable spoliation thus occurs only when the duty

to preserve existing evidence has been breached. Here,

although the police seized the Castaneda videotape, they

returned it unaltered. That they interrupted Castaneda’s

filming is not evidence of spoliation; Illinois does not

recognize a spoliation claim based on evidence not yet

in existence. In contrast, Gudino’s videotape was not

returned and therefore was properly considered as a

basis for the plaintiffs’ spoliation claim.

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2. Officer Vitalo

Officer Vitalo was implicated in several claims brought

by three of the plaintiffs. Specifically, Daniel Pineda

brought a federal excessive-force claim against Vitalo, as

well as state-law claims for battery, hate crimes, and

intentional infliction of emotional distress. Alejandro

Duran likewise alleged that Vitalo used excessive force

and violated his right to equal protection, and also

asserted state-law claims for battery, hate crimes, and

intentional infliction of emotional distress. Finally,

Gonzalo Duran alleged state-law claims against Vitalo

for malicious prosecution, battery, and intentional infliction of emotion distress. These plaintiffs sought

to introduce four misconduct complaints from the mid1990s accusing Vitalo of verbally abusing minorities,

engaging in excessive force, committing false arrest, and

falsifying police reports. The plaintiffs argued that

these complaints were admissible under Rule 404(b) as

evidence of Vitalo’s bias, motive, and intent to harass and

harm Latinos. The district court excluded this evidence.

We review evidentiary rulings for abuse of discretion.

Manuel v. City of Chicago, 335 F.3d 592, 595 (7th Cir. 2003).

Under Rule 404(b), evidence of other crimes, wrongs, or

acts is inadmissible to show propensity, but may be

admissible for other purposes, “such as proof of motive,

opportunity, intent, preparation, plan, knowledge,

identity, . . . absence of mistake or accident,” or other

relevant, nonpropensity purposes. The admissibility

of prior bad acts under Rule 404(b) turns on an evaluation of the following factors:

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(1) the evidence is directed toward establishing a

matter in issue other than the defendant’s propensity

to commit the crime charged; (2) the evidence

shows that the other act is similar enough and close

enough in time to be relevant to the matter in issue;

(3) the evidence is sufficient to support a jury

finding that the defendant committed the similar act;

and (4) the probative value of the evidence is not

outweighed by the danger of unfair prejudice.

Treece v. Hochstetler, 213 F.3d 360, 363 (7th Cir. 2000)

(quotation marks omitted).

Vitalo moved in limine to prohibit the introduction of

the misconduct complaints, arguing that they were not

relevant and were too remote, and also that their prejudicial effect would substantially outweigh any possible

probative value. The district court apparently agreed;

the judge granted this motion without comment. During

the course of the trial, however, the plaintiffs asked the

judge to revisit this ruling. They argued that Vitalo

opened the door to the introduction of this evidence

based on the way he presented his defense to the jury.

First, during Vitalo’s testimony, his attorney asked him

if he “ever use[d] a racial slur toward any of the party

goers” on the night of the Durans’ party. Vitalo replied,

“Absolutely not. I would never do anything like that.”

Later during that same examination, Vitalo’s attorney

asked, “What’s your wife[’s] ethnicity?” Vitalo responded,

“She’s half Mexican, sir.”

This line of questioning was obviously designed to

portray Vitalo as tolerant of minorities, so the plaintiffs

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asked the judge to reconsider his decision to exclude

the misconduct complaints under Rule 404(b). The

judge again declined to admit the evidence, saying

that “the danger of confusion and of unfair prejudice to

the other defendants would outweigh the probative

value as to the defendant Vitalo.”

The district court has substantial leeway in conducting

the Rule 404(b) analysis, and especially in weighing

the possibility of prejudice against the probative value

of the evidence. “The balancing of probative value and

prejudice is a highly discretionary assessment, and we

accord the district court’s decision great deference, only

disturbing it if no reasonable person could agree with

the ruling.” Manuel, 335 F.3d at 596 (quotation marks

omitted). While Vitalo’s testimony arguably opened the

door for admission of the misconduct complaints, “the

Rules of Evidence do not simply evaporate when one

party opens the door on an issue.” Id. at 597 (quotation

marks omitted). The district court was required to

balance the probative value of the long-ago complaints

against the prejudicial effect of this evidence; we

generally do not second-guess this kind of ruling. This

was a very complicated case, with many claims,

plaintiffs, and defendants. The introduction of several

old, unrelated misconduct complaints against a single

officer risked creating a sideshow and sending the trial

off track. Furthermore, because the misconduct complaints involved allegations of physical and verbal abuse

by Vitalo, there was potential for prejudicial “spillover”

effect on all the defendants. The judge did not abuse

his discretion by maintaining his original ruling.

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3. Officer Peslak

Several of the federal and state claims were aimed at

Officer Peslak, who had an unrelated criminal conviction

for a civil-rights violation under 18 U.S.C. § 242, which

provides, in relevant part, that

[w]hoever, under color of any law, statute, ordinance,

regulation, or custom, willfully subjects any person . . .

to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution

or laws of the United States . . . shall be fined under

this title or imprisoned not more than one year, or

both; and if bodily injury results from the acts committed in violation of this section[,] . . . shall be fined

under this title or imprisoned not more than ten years,

or both . . . .

The criminal charge against Peslak arose out of an

August 8, 2003 traffic stop. The transcript of Peslak’s

guilty-plea proceeding reflects that Peslak admitted to

grabbing the driver of the car “by the back of the head

and hit[ting] his head forcefully against the part of

the car where the roof and the top of the door come

together.” The driver suffered a cut on his right eyebrow

that required five stitches to close. Peslak pleaded guilty

to one count of using excessive force under color of

state law in violation of § 242. He was sentenced to a fivemonth jail term. Peslak’s codefendant in the case,

Officer Joseph DeKiel, also pleaded guilty; he said in his

own plea agreement that Peslak falsified a police report

to indicate that DeKiel was at the scene of this incident

when in fact he was not. DeKiel also admitted that at

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Peslak’s urging, he had testified falsely to corroborate

this report.

Peslak moved in limine to exclude evidence of this

conviction as unfairly prejudicial. The plaintiffs responded that the conviction was admissible under

Rule 609 of the Federal Rules of Evidence but never

specified which subsection they were relying on. Rule

609(a)(1) provides that “evidence that a witness other

than an accused has been convicted of a crime shall be

admitted, subject to Rule 403, if the crime was punishable

by death or imprisonment in excess of one year.” Rule

609(a)(2) provides that “evidence that any witness has

been convicted of a crime shall be admitted regardless

of the punishment, if it readily can be determined that

establishing the elements of the crime required proof

or admission of an act of dishonesty or false statement

by the witness.”

The plaintiffs seemed to argue that evidence of Peslak’s

conviction was admissible under either Rule 609(a)(1)

or Rule 609(a)(2). On one hand, they observed that

Peslak’s plea agreement acknowledged that Peslak

inflicted bodily injury on his victim (a cut on the eyebrow), and so Peslak’s crime was punishable by up to

ten years. See 18 U.S.C. § 242. But they also argued

that Peslak’s crime involved acts of dishonesty, which

sounds like an argument for admissibility under

Rule 609(a)(2).

The district court granted Peslak’s motion to exclude

his civil-rights conviction in an omnibus order that

covered many other evidentiary issues. The judge made

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The plaintiffs do not advance a plain-error argument on 4

this point.

There is one final point on this issue. During trial, plaintiffs 5

conducted an examination of Peslak outside the jury’s presence

with the intention of using Peslak’s own testimony about this

incident as prior-acts evidence under Rule 404(b). Plaintiffs’

(continued...)

it clear, however, that this ruling was tentative. The

order specifically explained that “[d]uring the course of

the trial, the parties may move to reconsider any of

these rulings if they believe the evidence warrants reconsideration.”

We have held that where the district court makes a

tentative or conditional evidentiary ruling before trial, the

adversely affected party must renew its objection at trial

in order to preserve the issue for appeal. See Wilson v.

Williams, 182 F.3d 562, 565-66 (7th Cir. 1999) (en banc). The

plaintiffs did raise the issue of Peslak’s conviction at

trial, but only argued that it was admissible as a crime

of dishonesty. Any argument that Peslak’s conviction

was admissible under Rule 609(a)(1) is therefore forfeited. The district court properly excluded evidence of 4

Peslak’s conviction under Rule 609(a)(2) because the

elements of his crime did not include acts of dishonesty

or false statements. Although his codefendant’s plea

colloquy suggests that the two participated in a cover-up,

Peslak was convicted of using excessive force under

color of state law in violation of § 242, a crime that did

not involve acts of dishonesty or false statements.5

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(...continued) 5

counsel asked Peslak if it was true that he prepared false

police reports in connection with the incident. At this point

Peslak’s counsel objected, and the district court put an end

to the examination because the plaintiffs’ question could have

compromised Peslak’s Fifth Amendment right regarding selfincrimination. The plaintiffs now contend that Peslak’s rights

under the Fifth Amendment were not implicated by this

line of questioning.

“To be privileged by the Fifth Amendment to refuse to answer

a question, the answer one would give if one did answer it (and

answer it truthfully) must have some tendency to subject the

person being asked the question to criminal liability.” In re

High Fructose Corn Syrup Antitrust Litig., 295 F.3d 651, 663-64

(7th Cir. 2002). Here, Peslak was being asked to affirm that he

had prepared false police reports. Among other things, an

admission of filing false police reports can give rise to an

obstruction-of-justice charge under 18 U.S.C. § 1512(b)(3), see,

e.g., United States v. Carson, 560 F.3d 566, 573 (6th Cir. 2009), or

a similar state offense. The plaintiffs assert that Peslak could not

have faced liability for any such admission because he was

already serving time on the underlying civil-rights conviction.

But Peslak pleaded guilty to a civil-rights violation under § 242,

not any additional charge of obstruction. On appeal the plaintiffs do not cite anything in the record that suggests that Peslak’s

plea agreement prevented him from later being prosecuted

for filing false police reports. Accordingly, we find no fault

with the district court’s decision to halt this line of inquiry to

protect Peslak’s Fifth Amendment right against self-incrimination.

For the foregoing reasons, we VACATE the judgment

and REMAND the case to the district court with instrucCase: 08-2467 Document: 00711601625 Filed: 08/31/2011 Pages: 30

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tions to issue an amended judgment consistent with

this opinion. In all other respects, we AFFIRM.

8-9-11

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