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Section 1983
Case Law Updates:
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Greetings!
Here are the latest legal updates in the field of Civil Rights Litigation as they relate to allegations of police misconduct. You can now sign up for Case Law Updates on our website. You can also access prior case law updates on our site or our blog. If you have any decisions you would like to circulate on our updates, please contact me. As always, you can contact me if you have any questions or comments.
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Seventh Circuit Reverses Judge Manning's Grant of Summary Judgment For the Defense In A Search Warrant Case
Guzman, Maira v. City Chicago (May 13, 2009)
Today the Seventh Circuit reversed Judge Manning's grant of summary judgment in a search warrant case.
According to the opinion:
"In this case brought under 42 U.S.C. § 1983, Maira Guzman alleges that her constitutional rights were violated when Chicago police officers performed an unreasonable search of her home and placed her under arrest. In 2005, Sergeant Marvin Bonnstetter of the Chicago Police Department was investigating gang activity. In the course of the investigation [he was provided with information from a John Doe witnesses}. Officer obtained a search warrant for a single-family residence at 1536 West Walton in Chicago. Although there was probable cause for the warrant, the court found the exclusion was improper. [What became clear at some point is that the building was not a single-family residence, but rather it housed a real estate office, an apartment (though unoccupied as it turned out) on the first floor, and a separate apartment on the second floor.]"
"Although the officers thought the building looked like a single-family house, they should have known pretty quickly that their belief was mistaken. They learned that the front of the building housed a real estate office. That the office was small does not distract from the fact that it was an office. Officers also learned that they could not get to the rest of the house from that office. That they had to gooutside to access the second-floor apartment should have informed them that this was not a single-family residence....As we said in Jacobs, "searching two or more apartments in the same building is no different than searching two or more completely separate houses. "
"Once he knew that the house was not a single family dwelling, he should have called off the search. Not doing so violated Guzman's constitutional rights. "
The Court then went on with the following discussion:
"Interestingly, as this is a case for damages under § 1983, it may illustrate our recent observation that in some ways it is easier to protect Fourth Amendment rights though civil actions, rather than through the suppression of evidence in criminal cases. In United States v. Sims, 553 F.3d 580 (7th Cir. 2009), we wondered whether at some point the Supreme Court will approach civil cases differently from criminal cases because to find a violation in a civil case raises "no concern that the sanction for violating the Fourth Amendment would be disproportionate to the harm caused by the violation." Id. at 585. Just a few months ago in Herring v. United States, 129 S. Ct. 695, 700 (2009), the Court reiterated the distinction between the existence of a Fourth Amendment violation and a subsequent invocation of the exclusionary rule, noting that
exclusion "has always been our last resort, not our first impulse . . . ." (quoting Hudson v. Michigan, 547 U.S. 586, 591 (2006)). Exclusion is not a necessary consequence of a Fourth Amendment violation, and the benefits of exclusion must outweigh the costs. Herring, 129 S. Ct. at 700.
These "costs" to law enforcement are not a concern in civil cases. For that reason, civil cases are far less trouble some. As we said in Sims, civil cases-like our case today-do not raise concerns that illegally seized evidence essential to convicting the defendant of a grave crime might have to be suppressed, and the criminal let go to continue his career of criminality, even if the harm inflicted by the illegal search to the interests intended to be protected by the Fourth Amendment was slight in comparison to the harm to society of letting the defendant off scot free. 553 F.3d at 584. This is not to say that the exclusionary rule is necessarily on life support. Just a few days ago, the Court overruled prior precedent regarding warrantless searches of automobiles incident to an arrest. The Court held that once an arrestee is safely in custody (he was under arrest, handcuffed, and in a squad car) and unable to gain access to his vehicle, the search of the vehicle "incident to arrest" doctrine is no longer available. Arizona v. Gant, 2009 WL 1045962, ___ S. Ct. ___ (2009). Civil suits under § 1983 may not always be adequate to remedy a Fourth Amendment violation, which is of concern to many, including the dissenters in Herring. Officers, they say, will often be "sheltered by qualified immunity." That is true in some cases just as it is true that the many exceptions to the exclusionary rule often prevent vindication of Fourth Amendment rights.
In the Finding that the execution of the search of the apartment was illegal, we will also reinstate Ms. Guzman's false arrest claim
Justice Rovner issued a concurring opinion.
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Magistrate Judge Nolan's Rulings on Defendant's Motions In Limine in Upcoming Civil Rights Trial:
Carlson v. Bukovic, 2009 WL 1286004 (May 04, 2009)
Here are Judge Nolan's discussions of some of Defendant's contested motions:
A. Evidence Surrounding Defendant's Departure from Darien Police Force
Plaintiff "offers absolutely nothing to suggest that [officer's depature from the department] was in any way related to the incident with her on January 3, 2005." As such, the court agrees that the evidence of Officer Bukovic's departure is substantially more prejudicial than probative.
B. Elevation of Plaintiff's Blood Pressure
[Plaintiff's] medical records reflect that she experienced elevated blood pressure following the incident with [the] Officer." Plaintiff failed to identify "a medical expert who can testify that the slight elevation in blood pressure observed several hours after her encounter with Officer Bukovic was in fact related to that encounter, as opposed to some other cause." Therefore, although plaintiff "may testify during the damages phase of the trial that she experienced emotional distress as a result of Officer Bukovic's actions, and she may describe how she felt. She may not, however, mention an elevation in her blood pressure.
C. Lawfulness of Plaintiff's Presence on Wal-Mart Premises
See Opinion for fact specific discussion
D & E. Plaintiff's Citizen's Complaints
The fact that Ms. Carlson attempted to file a complaint with the Hinsdale Police Department is not relevant to the issue of whether Officer Bukovic "seized" her or used excessive force against her. The alleged contents of that complaint are similarly not probative because the department never took her statement or prepared a written report.
F. Alleged Violations of Department Policies
"[T]he violation of police regulations or even a state law is completely immaterial as to the question of whether a violation of the federal constitution has been established." Id. Officer Bukovic's motion in limine to bar evidence of alleged violations of Darien Police Department policies, rules or procedures is granted.
G. Defendant's Touching of Service Weapon
As for the evidence at issue, the court agrees with Officer Bukovic that his alleged show of force does not in any way constitute a seizure of Ms. Carlson. See opinion for fact specific issues disucssed on this point..
Motion to Bar Expert Testimony
[Plaintiff] has identified four treating physicians as witnesses in this case [and] has at all times maintained that she does not intend to elicit any expert testimony from these doctors and, consistent with this representation, she has not submitted any corresponding expert reports under Rule 26(a)(2).
Ms. Carlson contends, without any supporting citation, that causation testimony does not constitute expert testimony requiring a Rule 26(a)(2) expert report because it goes to the issue of whether the physicians' observations were consistent with her statements to them. The court has found a split of opinion on this issue. Compare McCloughan v. City of Springfield, 208 F.R.D. 236, 241-42 (C.D.Ill.2002) (treating physicians may offer opinion testimony on causation without submitting a Rule 26(a) (2)(B) report), with Krischel v. Hennessy, 533 F.Supp.2d 790, 795 (N.D.Ill.2008) ("[W]hen the testimony of a treating physician goes beyond the scope of treatment, observation, and diagnosis, and includes opinions on causation ..., the treating physician must provide a report" pursuant to Rule 26(a)(2)(B)).
Putting the report issue to one side, it is clear that any causation testimony offered by a treating physician must satisfy the requirements of Rule 702 and Daubert....The objective of Daubert is to ensure that "an expert, whether basing testimony on professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999). The party seeking to present expert testimony bears the burden of demonstrating that it meets the requirements of Rule 702 and Daubert. Fuesting, 594 F.Supp.2d at 1045; Krischel, 533 F.Supp.2d at 797.
Interesting Note on One Treater...
It is true that Ms. Carlson did not submit an expert report from Dr. Trefil under Rule 26(a)(2)(B), but she did disclose him as an expert witness under Rule 26(a)(2)(A). In addition, Officer Bukovic has had an opportunity to depose Dr. Trefil and to test his dental credentials in order to prepare for trial. On these facts, the court will allow Dr. Trefil to testify generally that failing to wear dentures may cause teeth to shift enough that the dentures no longer fit. He may also testify that Ms. Carlson told him she had stopped wearing her dentures in January 2005 after her encounter with Officer Bukovic. Dr. Trefil may not, however, opine in any way that Ms. Carlson was unable to wear her dentures following the January 2005 incident, or that the dentures stopped fitting because of Officer Bukovic's actions.
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About Our Firm
Andrew M. Hale & Associates is a firm which specializes in the defense of civil rights lawsuits brought against municipalities and its police officers. The firm's principal attorneys, Andrew M. Hale and Avi T. Kamionski, have significant experience in defending cities, municipalities, police officers and other governmental employees in civil rights lawsuits. Mr. Hale and Mr. Kamionski have tried numerous civil rights cases before juries in the Northern District of Illinois and are seasoned trial attorneys. Contact Andy or Avi to discuss any of your legal needs.
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