16. Allegations of a “cover-up” effort by Defendants and other CPD officers

Finally, Defendants anticipate Plaintiffs will attempt to offer evidence ofa conspiracy
by Defendants or other CPD officers to falsify reports and give false testimony to OPS
Investigator Killen in order to cover up the alleged false arrests or alleged excessive force.
Defendants ask the Court to preclude introduction of this conspiracy evidence as irrelevant
to Plaintiffs” claims and prejudicial to Defendants.

The Court grants in part and denics in part Defendants’ motion Number 16. The
motion is granted in that Plaintiffs are barred from using the unduly prejudicial terms “cover-
up” and “conspiracy.” However, the motion is denied in that Plaintiffs will be allowed to
introduce evidence of false statements and reports made by Defendants or other police
officers because such statements and reports would be admissible for impeachment.

I¥. CONCLUSION

For the reasons set forth above, the Court grants in part and denies in part
Plaintiffs’ motions numbered 1 and 3 and denies Plaintiffs’ motion Number 2. The
Court grants Defendants’ motions numbered 1-3, 5, 7; 11-13, and 17-19; denies
Defendants’ motions numbered 6 and 15; denies Defendants’ motion Number 10
without prejudice; grants in part and denies in part Defendants’ motions numbered 8,
9, 14, and 16; and reserves ruling on Defendants’ motion Number 4 until the time of
trial. The parties bear the responsibility for informing their witnesses of this ruling,

and admonishing them not to offer testimony on matters barred by the Court’s order.

13



known to Defendants at the time of Plaintiffs’ arrest. See United States v. Carillo, 269 F.3d
761, 766 (7th Cir. 2001) (stating probable cause is determined using information known to
officers at the time of arrest). However, if Plaintiffs deny any involvement in the incident,
then Defendants’ witnesses may offer testimony concerning Plaintiffs’ prior behavior to
attack their credibility. Thus, Plaintiffs’ first motion is granted in part because evidence of
Plaintiffs’ actions prior to Defendants’ arrival is inadmissible to prove the existence of
probable cause; Defendants may not introduce such evidence in their case in chief. The
motion is denied in part because (1) Defendants may introduce general context information
in regard to the events leading up to the police call; and (2) if Plaintiffs bring up what they
were doing prior to Defendants’ arrival, Defendants can introduce spccific evidence to
contradict Plaintiffs or Plaintiffs’ witnesses.

2. Testimony by six “previously unidentified” witnesses

Plaintiffs next urge the Court to bar testimony by six defense witnesses; Investigator
Brian Killen, Detention Aide Tracy Williams, Officer Kenneth Maduzia, Technician A.
Thomas, and the record keepers of the Chicago Police Department (“CPD”) and the Office
of Emergency Communications. Plaintiffs claim the witnesses were not identified during
disclosure and therefore, should not be allowed to testify. See Fed. R. Civ. P. 26. In
response, Defendants contend witnesses Killen, Williams, Maduzia, and Thomas were

identified in Defendants’ Rule 26 disclosure. Defendants also claim that both Plaintiffs

testified to knowledge of these four witnesses in their depositions. The other two witnesses,



Defendants do to Plaintiffs. Limiting instructions, if necessary, will be permitted to make
itclear Plaintiffs will only be allowed to recover for actions caused by the named defendants.
8. Reference to any medical condition other than subjective symptoms
Defendants also object to the admission of Plaintiffs’ testimony regarding “any
medical conditions, causation, diagnoses or prognoses” resulting from the April 4, 2002
incident, Defendants assert the following: (1) testimony other than subjective symptoms may
only be given by an expert witness, and (2) Plaintiffs failed to disclose any expert witnesses.
Any testimony concerning medical conditions that would require medical expertise
is barred by Federal Rule of Evidence 702 and Federal Rule of Civil Procedure 26(a)(2)
because Plaintiffs have failed to disclose any expert witnesses. However, any testimony by
Plaintiffs regarding subjective symptoms including, but not limited to, pain from or the
existence of bruises, cuts, and abrasions resulting from the beating is admissible because it
does not require the knowledge of an expert witness. Fed, R, Evid. 701 (lay person testimony
allowed if “rationally based on the perception of a witness”). Accordingly, Defendants’
motion Number 8 is granted in part to the extent Plaintiffs attempt to bring in expert medical
testimony, and denied in part to the extent Plaintiffs testify regarding their subjective
symptoms and their own personal observations and experiences.
9, Reference to investigation by the Office of Professional Standards (“OPS”)

Defendants also seek to bar any mention of the OPS investigation regarding the

present case or any testimony by the OPS investigator, for reasons other than impeachment.



Prior felony convictions are admissible to aid the jury in assessing witness credibility.
Fed. R. Evid. 609(a); United States v. Neely, 980 F.2d 1074, 1080 (7th Cir. 1992), However,
Defendants have not demonstrated that Plaintiff Townscnd’s controlled substance conviction
is probative in the present case or relevant to Townsend’s credibility. Therefore, the Court
finds evidence of Plaintiff Townsend’s prior conviction to have only slight probative value.

The Court next moves to the required Rule 403 balancing of the probative value and
prejudicial effect of the prior conviction. The Court finds the danger that Plaintiff
Townsend’s prior conviction may cause unfair prejudice substantially outweighs any
probative value the conviction offers. Neely, 980 F.2d at 1081 (citing United States v.
Robinson, 956 F.2d 1388, 1397 (7th Cir. 1992)). Plaintiffs’ motion Number 3 is granted in
part in that evidence of the conviction may not be introduced at trial.

Defendants also assert Plaintiffs’ arrest records are admissible as evidence of bias for
impcachment purposes. The Court grants Plaintiffs’ motion Number 3 in part in that
Defendants may not bring up Plaintiffs’ prior convictions in Defendants’ case in chief.
However, the motion is denied in part in that, if Plaintiffs argue they were uniquely

embarrassed by the April 4, 2002, arrest, then Defendants may introduce Plaintiffs’ numerous

prior arrests to diminish the impact of the particular arrest in question,



the record keepers, were named by Defendants in the Final Pretrial Order. They will be
called for foundational purposes only,

The Court denies Plaintiffs’ motion Number 2. The motion is denied with respect to
Technician A. Thomas because the witness was sufficiently identified in Defendants’ Rule
26 discovery. The Court also denies the motion in regard to the two record keeper witnesses
becausc the parties are to eliminate thc necessity for the testimony of these two witnesses by
working out document foundation before trial. Finally, with respect to Investigator Killen,
Detention Aide Williams, and Officer Maduzia, the Court denies the motion but orders
Defendants to supplement their interrogatory responses by October 14. Defendants shall
provide each witness’s name as well as a brief description of the proposed arcas of testimony.
Plaintiffs may depose Killen, Williams and Maduzia prior to trial if Defendants plan to call
them as witnesses.

3. Prior arrests or convictions of Plaintiffs or Plaintiffs’ witnesses

Plaintiffs’ final motion seeks to prevent Defendants from introducing testimony
referring to any prior arrests or convictions of Plaintiffs. Defendants wish to admit both
Plaintiffs’ arrest records and Plaintiff Townsend’s prior felony conviction. Defendants argue
Plaintiff Townsend’s 1996 felony conviction for possession of a controlled substance is
admissible for impeachment under the Rules of Evidence, as long as the prejudicial effect

of the evidence does not substantially outweigh its probative value. Fed. R. Evid. 609(a)(1)

(“Rule 609”); Fed. R. Evid, 403 (“Rule 403”).



the criminal matter is not relevant to whether Defendants had probable cause to arrest
Plaintiffs. Cf! Serpico v. Menard, Inc., 927 F. Supp. 276, 280 (N.D. Ill. 1996) (explaining
guilt of accused not relevant to probable cause). ‘To avoid prejudice to Defendants, the jury
should be informed that the outcome of the criminal proceeding is not relevant to whether
Defendants had probable causc to arrest Plaintiffs, However, the jury should also be told the
charges against Plaintiffs were dismissed, in order to avoid the possibility the jury may
assume Plaintiffs were arrested and later found guilty. Pending the parties’ agreement on a
stipulation to be read to the jury, the Court reserves ruling on Defendants’ motion in limine
Number 2.

6. Suggestion of excessive force used against Plaintiffs, or injury caused
Plaintiffs, by any City employee other than Defendants

Defendants next seek to prevent Plaintiffs from suggesting that any City of Chicago
employee other than Defendants caused injury to, or used excessive force against Plaintiffs.
Defendants assert they can not be held liable for the actions of another person, and, therefore,
suggestions that other City employees injured Plaintiffs must be barred. Plaintiffs contend
Defendants’ motion should be denied because (1) other CPD officers were on the scene, (2)
Plaintiffs were not always able to see by whom they were being beaten, and (3) Plaintiffs
should be allowed to call witnesses to testify concerning the presence and actions of all
police officers at the scene. The Court donics Defendants’ motion in /imine Number 6 in
order to permit Plaintiffs to place the events giving rise to this claim in context. Defendants

will be able to cross-examine Plaintiffs and Plaintiffs’ witnesses as to what they saw



> Minute Ordey Farm (06/97)

United States District Court, Northern District of Iinois

Name of Assigned Judge Marvin E. Aspen Sitting Judge if Other Morton Denlow
or Magistrate Judge than Assigned Judge
CASE NUMBER 02 C 6668 DATE 10/10/2003
CASE Townsend, et al. vs, Beyna, ct al.
TITLE
[In the following box (u) indicate the party tiling the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.)
DOCKET ENTRY:
qa) im) Filed motion of [ use listing in “Motion” box above.)
(2) a} Brief in support of motion due
GB) oO Answer brief to motion due___. Reply to answer briefdue___
(4) Q Ruling/Hearing onset for___at
(5) Oo Status hearing[held/continued to] [set for/re-set for]on__—_setfor__— at.
(6) Oo Pretrial conterence|held/continued to] [set for/re-set for]on | __s set for___ att
(7) o Trial[sct for/re-set for] on at __
(8) o [Bench/Jury trial] [Hearing] held/continued to____ at
(9) qo This case is dismissed [with/without] prejudice and without costs|by/agreement/pursuant to]

OFRcP4(m) OLocal Rule 41.) OFRCP41(a)(1) O FRCP41(a)(2).

do «ff [Other docket entry] Enter Memorandum Opinion and Order. The Court grants in part and denies in part
Plaintiffs’ motions in limine numbered 9-1, 9-3. Plaintiffs’ motion in limine Number 9-2 is denied. The Court
grants Defendants’ motions in limine numbered 10-1, 10-2, 10-3, 10-5, 10-7, 10-11, 10-12, 10-13, 10-17, 10-18
and 10-19. The Court denies Defendants’ motions in limine numbered 10-6 and 10-15, The Court denies
Defendants’ motion in limine Number 10-10 without prejudice. The Court grants in part and denies in part
Defendants’ motions in limine numbered 10-8, 10-9, 10-14 and 10-16. The Court reserves ruling on Defendants’
motion in limine Number 10-4 until the time of trial, The parties bear the responsibility for informing their
witnesses of this ruling, and admonishing them not to offer testimony on matters barred by the Court order.

qd} [For further detail sce order attached to the original minute order.]

No notices requiced, advised in open cour.

Docuiien
Namber

No notices required,

umber of novices.
v | Notives mailed by judge’s staff. OCT 14 2003

Notified counsel by telephone.

date docketed

Docketing to mail notices.

Mail AQ 450 form ocketing dSpty initiahs

| Copy to judge/magistrate judge, Sy ey
tortor2003
. ute nailed notice
courtroom eed Shige
pK deputy's dvs ox
initials
Date/time received in
centrat Clerk's Office smiling deputy intals



See Serpico, 927 F. Supp. at 280. Thus, knowing violations of CPD regulations by
Defendants are relevant to Plaintiffs’ claims.

Furthermore, any possible prejudice to Defendants in the form of jury confusion
between rules violations and constitutional violations may be avoided through explanatory
jury instructions, See, e.g., Charles v. Cotter, 867 F. Supp. 648, 664 (N.D. Ill. 1994)
(denying motion to bar evidence of CPD rules violations by defendants because jury
instructions were sufficient to avoid confusion). But see Walker v. Saenz, No. 91 C 3669,
1992 WL 317188, at *4 (N.D. Ill. Oct. 27, 1992) (granting motion prohibiting introduction
of evidence of police regulations and alleged violations of regulations duc to confusion and
prejudice concerns). Defendants’ motion Number 10 is denied without prejudice to being
raised again at trial.

14, Mention of a “code of silence” among police officers

Defendants ask the Court to find inadmissible testimony or evidence concerning a
“code of silence” among police officers. Defendants argue such “code of silence” evidence
relies on generalized assumptions that all police officers cover for other police officers.
Defendants contend such evidence is nothing more than a general attack on the Chicago
Police Department and must not be introduced to a jury. Plaintiffs respond that they must
be allowed to attack the credibility of Defendants and Defendants’ witnesses through
questions concerning their unwillingness to testify concerning fellow police officers’

wrongdoing.

11



Plaintiffs object to the motion, arguing they should be able to introduce evidence concerning
their contact with the OPS should Defendants suggest Plaintiffs failed to complain about
being mistreated. Plaintiffs also intend to use statements made by Defendants to OPS
Investigator Killen to impeach Defendants. Plaintiffs claim it will be necessary to mention
the OPS investigation in order to put those statements in context. The Court grants
Defendants’ motion Number 9 to the extent that the OPS investigation may only be
mentioned for context purposes. The Court denies Defendants’ motion in its attempt to
deprive Plaintiffs of their ability to make any mention of the OPS investigation. Defendants’
concems of jury prejudice arising from discussion of the OPS investigation may be alleviated
by the trial judge’s explanation that an OPS investigation may be triggered by a complaint
from any citizen and does not constitute a finding of officer misconduct.

10. Reference to CPD regulations or directives and suggestions that Defendants
or other CPD officers violated any such regulations

Defendants next move to bar evidence or testimony concerning CPD regulations and
the suggestion that Defendants, or other CPD witnesses, may have broken such regulations
in the present case. Knowing violation of police rules does not rise to the level of a
constitutional violation. Kraushaar v, Flanigan, 45 F.3d 1040 (7th Cir. 1995). For this
reason, Defendants argue that, for Plaintiffs’ § 1983 claim, suggested violations of CPD
directives by Defendants or CPD witnesses are inadmissible under Federal Rules of Evidence
401-403 because they are irrelevant, confusing, and prejudicial. However, Defendants’

knowledge and state of mind are required clements of Plaintiffs’ claims against Defendants.

10



B. Defendants’ motions in limine

2. Reference to indemnification of Defendants by City of Chicago

Defendants ask the Court to bar any comment regarding the indemnification of
Defendants by the City of Chicago. Defendants claim the information is irrelevant to their
liability and could lead the jury to award punitive damages because the City has “deep
pockets.” Defendants point to the similarity between the prejudicial effect of information
concerning indemnification by the City and that of possession of insurance coverage,
prohibited under Federal Rule of Evidence 411 (“Rule 411”). Rule 411 does not explicitly
bar references to indemnification of Defendants, but Plaintiffs have failed to show why the
indemnification of Defendants by the City of Chicago is sufficiently probative to justify
admission into evidence. Therefore, the Court grants Defendants’ motion Number 2 barring
mention of the indemnification of Defendants by the City because the information is too
prejudicial to survive the Rule 403 balancing test. See Walker v. Saenz, No. 91 C 3669, 1992
WL 317188, at *3 (N.D. Il. Oct. 27, 1992). However, the issue may be revisited at trial to
the extent that information of Defendants’ finances must be considered in regard to punitive
damages. In that event, a cautionary instruction should be given, informing the jury that
Defendants’ finances address punitive damages only.

4. Reference to related criminal charges brought against Plaintiffs

Defendants next urge the Court to bar any mention of the disposition of the criminal

charges brought against Plaintiffs arising out of their arrest in this case. The disposition of



motions without objection. Defendants’ motions numbered 2, 4, 6, 8, 9, 10, 14, 15, and 16
are in dispute.

For the following reasons, the Court grants in part and denies in part Plaintiffs’
motions numbered 1 and 3, and denies Plaintiffs’ motion Number 2. The Court grants
Defendants’ motion Number 2; denies Defendants’ motions numbered 6 and 15; denies
Defendants’ motion Number 10 without prejudice; grants in part and denies in part
Defendants’ motions numbered 8, 9, 14, and 16; and reserves ruling on Defendants’ motion
Number 4 until the time of trial.

A. Plaintiffs’ motions in limine

1. Post incident information of probable cause

Plaintiffs contend evidence not known to Defendants at the time of Plaintiffs’ arrest
is inadmissible because it is not relevant to probable cause. On this basis, Plaintiffs argue
the jury should not be allowed to hear testimony concerning Plaintiffs’ actions prior to
Defendants’ arrival.

Evidence that people were rocking or threatening the ambulance is contextually
relevant to the present case because Defendants arrived on the scene in response to the
ambulance crew’s distress call. See Wilson v. Groaning, 25 F.3d 581, 584 (7th Cir. 1984)
(stating evidence relevant if necessary to aid jury understanding and to avoid a chronological
void in the story). Specific evidence that Plaintiffs were involved in the rocking or

threatening of the ambulance is inadmissible under Rule 402 because such evidence was not



SO ORDERED THIS 10th DAY OF OCTOBER, 2003.

MORTON DENLOW
UNITED STATES MAGISTRATE JUDGE

Copies mailed to:

Garreti Browne Susan Sullivan

ED FOX & ASSOCIATES Assistant Corporation Counsel

134 North LaSalle Street, Suite 1908 30 North LaSalle Street, Suite 1400
Chicago, IL 60602 Chicago, IL 60602

Counsel for Plaintiffs Counsel for Defendants



trial. This matter comes before the Court on motions in limine filed by the parties in
preparation for trial. These motions were referred by the district judge for resolution. The
Court conducted an oral argument on the motions on September 30, 2003.
IL. LEGAL STANDARD

District courts may rule on motions in /imine pursuant to their authority to manage
trials, even though such rulings are not explicitly authorized by the Federal Rules of
Evidence. Luce v. United States, 469 U.S. 38, 41 n.4 (1984). District judges have broad
discretion in ruling on motions in fimine. Jenkins v. Chrysler Motors Corp., 316 F.3d
663, 664 (7th Cir. 2002). However, evidence may be excluded only when inadmissible
on all potential grounds. Hawthorne Partners v, AT&T Techs., Inc., 831 F. Supp. 1398,
1400 (N.D. Hl. 1993). Otherwise, rulings should be deferred to the time of trial to make
possible the resolution of questions of relevancy, foundation, and potential prejudice. /d.
A denied motion in dimine does not automatically mean that all evidence contested in the
motion will be admitted at trial. Jd. at 1401. In fact, trial judges are free to alter previous
in limine rulings, within the bounds of sound judicial discretion. Luce, 469 U.S. at 41-42.

II. DISCUSSION
Plaintiffs have filed three motions in limine. Defendants dispute cach of Plaintiffs’

motions. Defendants have filed nineteen motions in /imine. Plaintiffs have no objections to

Defendants’ motions numbered 1, 3, 5, 7, 11, 12, 13, 17, 18, and 19. The Court grants these



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION ayer
DIAHRIES TOWNSEND and ) v <A ss
RAMANU PETERSON, ) we
)
Plaintiffs, )
) Case No. 02 C 6668
v. )
) Magistrate Judge Morton Denlow
Chicago Police Officer T. BENYA, Star No. )
7207, and G. PEHLKE, Star No. 8416, )
Individually, )
)
Defendants. )

MEMORANDUM OPINION AND ORDER

L INTRODUCTION

On April 4, 2002, Chicago Fire Department paramedics requested police assistance;
a crowd of people had surrounded the ambulance and were rocking and threatening the
vehicle. Defendants responded to the call and arrived on the scene. The subsequent events
of the evening in question are contested by the parties.

Plaintiffs Diahries Townsend and Ramanu Peterson (“Plaintiffs”) brought the instant
law suit against Chicago Police Officers T. Beyna and G. Pchlke (“Defendants”) pursuant
to 42 U.S.C. § 1983. Plaintiffs assert Defendants (1) had no probable cause to arrest them

and (2) physically abused them during the arrests. Defendants deny the allegations. The

parties have completed discovery, have filed their final pretrial order and are preparing for



Defendants’ motion Number 14 is granted in part and denied in part, The motion is
granted in that the phrase “code of silence” is unduly prejudicial and may not be used at trial.
However, bias is nearly always relevant. United States v. Abel, 469 U.S. 45, 52 (1984). A
party’s and a witness’s common group membership is probative of bias, even without proof
that the party or the witness embrace the organization’s tenets. Jd. Accordingly, Defendants’
motion is denied with respect to Plaintiffs’ ability to argue the bias and prejudice of one
police officer on behalf of a colleague in the same way any party may argue the bias of any
witness in relationship to a plaintiff or defendant.

15. Mention of any medical treatment or bills not previously disclosed

Defendants also ask the Court to prohibit Plaintiffs from offering testimony or
evidence of medical bills or treatment not previously disclosed. Defendants have received
no medical bills from Plaintiffs, and Plaintiffs’ treating hospital returmed Defendants’
subpoenas without any such bills, Plaintiffs claim they have requested the bills from the
medical provider but have not received and do not currently possess the medical bills.
Defendants offer no evidence Plaintiffs have possession or control over the bills in question.
Defendants have also failed to demonstrate any harm would result from the admission of
previously undisclosed medical bills. The Court denies Defendants’ motion Number 15. To
the extent Plaintiffs obtain any relevant medical bills, Plaintiffs may use those bills at trial

after providing copies to Defendants.

12