Thompson, Lee v. City of Chicago ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3177
LEE THOMPSON, Administrator of the
Estate of James Thompson and
PAULETTE WHITE-THOMPSON,
Plaintiffs-Appellants,
v.
CITY OF CHICAGO and OFFICER
BRADLEY HESPE,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 C 8883—Amy J. St. Eve, Judge.
____________
ARGUED SEPTEMBER 21, 2005—DECIDED DECEMBER 19, 2006
____________
Before COFFEY, EVANS, and WILLIAMS, Circuit Judges.
COFFEY, Circuit Judge. On December 5, 2000, James
Thompson died following a struggle with police officers
who were trying to handcuff him while taking him into
custody after he led them on a high-speed automobile
chase in an attempt to evade apprehension on the west
side of Chicago, Illinois. The Cook County Medical Exam-
iner later ruled Thompson’s death a homicide, concluding
that he died as a result of asphyxia, resulting at least
in part from a “choke hold” applied to his neck while
officers were attempting to restrain him. Armed with this
2 No. 04-3177
information, Lee Thompson and Paulette White-
Thompson1 (collectively “the Thompsons”), filed suit in
the United States District Court for the Northern District
of Illinois against the City of Chicago (“City”) and the
eleven Chicago Police Department (“CPD”) officers who
were at the scene. In their complaint, Thompson’s relatives
alleged inter alia that the officers violated Thompson’s
Fourth and Fourteenth Amendment rights by using
excessive force while attempting to place him under ar-
rest, see 42 U.S.C. § 1983, and argued that the City and
the individual officers should be held liable under the
state common-law theory of wrongful death. Following
discovery, the City of Chicago and the police officers
submitted a motion for summary judgment, which was
granted in part, dismissing the suit against four of the
officers. Subsequently, six other named officers were
voluntarily dismissed by the plaintiffs, leaving only
Officer Bradley Hespe (the officer who allegedly placed a
choke hold on the arrestee) and the City as defendants.
Prior to trial, the remaining defendants filed a number
of motions in limine. Two of which were companion
motions seeking to bar the plaintiffs from introducing:
(1) the opinion testimony of officers from the CPD’s Office
of Professional Standards concerning their investigation
into Thompson’s death; and (2) the CPD’s General Orders,
practices and policies (or the officer’s failure to act in
accordance with those orders, practices and policies). The
district judge granted the motions, and the trial began on
July 12, 2004.
After a week long trial, and a day of deliberations, the
jury found in favor of the defendants, and judgment was
entered on July 21, 2004. The Thompsons filed a motion
for a new trial pursuant to Rule 59 of the Federal Rules of
1
Thompson’s mother and wife respectively.
No. 04-3177 3
Civil Procedure on August 4, 2004, arguing that the
district judge erred when she granted the defendants’
motions in limine, see supra at p. 2. The motion was
denied; the Thompsons appealed. We affirm.
I. BACKGROUND
On the evening of December 5, 2000, CPD Officers Jose
Cardo and Nicholas Spanos were on routine patrol on the
west side of Chicago, near the intersection of St. Louis
Avenue and Franklin Boulevard, when they noticed a black
Ford Mustang, parked with the engine running on the
eastbound side of the street. It was not apparent at that
time whether there was anyone in the driver’s seat. The
officers proceeded westbound past the idling car, but
slowed down to assess the situation, and shortly there-
after they observed an unknown male. The subject
emerged from the courtyard of an adjacent apartment
building, approached the Mustang, reached into the
passenger side of the car, appeared to extract something,
and ran back into the building. After this observation, and
based on the neighborhood’s reputation as a high drug
trafficking area,2 as well as the fact that the unknown
male seemed to look toward the police officers as he
was running back into the building, Cardo and Spanos
were of the belief that they had just witnessed a narcotics
buy.
The officers immediately made a u-turn, only to see the
Mustang pulling away from them and heading eastbound
on Franklin towards the St. Louis Avenue intersection.
Without activating their emergency lights, Officers Spanos
2
According to Officer Spanos, a narcotics officer with a wealth
of experience in that neighborhood, he had previously made
at least 25 narcotics arrests on that very block.
4 No. 04-3177
and Cardo followed the car for a few blocks to observe,
and, after the driver ran a stop sign, a traffic stop was
initiated after activating the flashing blue lights and
sirens. The driver of the Mustang yielded and pulled to
the side of the road; however, after both of the officers
exited their vehicle and began to approach the Mustang,
the car took off at a high rate of speed. The officers
jumped into their squad car and gave chase and alerted
their dispatcher, requesting back-up support as they
continued in pursuit.
During the next few minutes the chase covered two to
three miles. Officers Spanos and Cardo were joined by
other CPD officers who had responded to the call for
assistance. The officers involved in the pursuit tried to
barricade the Mustang in (per their training), but the
driver was able to evade their efforts to stop him by
driving up onto lawns and over sidewalks. Considering
the escalating danger to the officers, the public at large,
and the suspect, the officers realized the need to seize
immediate control of the situation. Shortly thereafter, they
were aided by a blunder on the part of the suspect driver.
While attempting to negotiate a right hand turn from
Maypole Street onto Kenton Avenue in Chicago, Illinois,
and traveling at a speed of approximately 40-50 miles
per hour, the driver lost control and skidded over the
curb and crashed into a viaduct on the northwest corner
of the intersection.
One of the first officers at the crash scene, Officer
Dougherty, observed the suspect’s badly damaged vehicle
and believing that the driver would be seriously injured,
called the dispatcher and requested ambulance assistance.
Joined by Officer Reyes, Officer Dougherty approached
the Mustang and observed the driver having a hard time
attempting to exit the severely damaged vehicle. Officer
Reyes assisted in opening the driver’s side door and
No. 04-3177 5
allowed the driver to exit. The driver, later identified as
James Thompson, while attempting to gain his balance,
was observed by Officer Dougherty, who, in turn, yelled
at him, and instructed him to “[g]et down on the ground.”
Rather than obeying the officer’s command, Thompson—
who stood six-foot-one and weighed approximately 330
pounds—took one step forward while swinging his fist at
Officer Reyes, who was unable to dodge the blow and was
struck on the shoulder. Officer Dougherty, rushing the
suspect and trying to seize his left arm and handcuff him,
was rebuffed when Thompson, still standing, pushed him
in the chest. Officer Dougherty re-engaged Thompson as
Officer Reyes feverishly attempted to restrain his right
hand and all three fell to the ground.
While on the ground with Thompson, Officers Reyes and
Dougherty were joined in the struggle by Officers Cygnar,
Rellinger, and Hespe, who had also taken part in the
chase. The officers who had just arrived observed Thomp-
son flailing his arms, while Officers Reyes and Dougherty
were trying to cuff him.3 In an effort to keep Thompson
on the ground, Officer Hespe jumped on his back and
placed his arm around Thompson’s neck, until the
other officers had completed the cuffing of his arms be-
hind him.4 At that point, Officer Hespe released Thomp-
3
As it turns out, Thompson’s wrists were too big for the tradi-
tional handcuffs, further exacerbating the already difficult task
of restraining him. In the end, two pairs of handcuffs had to
be interlocked in order to accommodate Thompson’s massive
forearms.
4
Whether or not Officer Hespe applied pressure to Thompson’s
neck—or for how long if he did—was a question of fact which
was tested thoroughly during cross-examination and argu-
ment before the jury. Although Officer Hespe himself did ad-
mit to placing his arm around Thompson’s neck, he maintained
(continued...)
6 No. 04-3177
son, who continued to struggle even after he had been
handcuffed.5
Once subdued, Thompson began complaining that he
was having trouble breathing. The officers rolled him over
onto his side so that they could make it easier for him to
get some air, while Officer Dougherty made a second call
for an ambulance. Thompson continued to complain that
he was having trouble breathing, prompting Officer
Cygnar to release his handcuffs.
The ambulance arrived about five minutes later, and
during that period of time Thompson stopped breathing
and became unresponsive. When paramedics arrived, they
encountered an unconscious Thompson. Two of the para-
medics testified at the trial that, when they examined
Thompson at the crash scene, they believed that he had
stopped breathing6 due to a large amount of blood block-
ing his airway.7 Thompson was transported via ambu-
lance to Mt. Sinai Hospital, where he was later pronounced
D.O.A. (dead on arrival).
4
(...continued)
that he did not apply pressure to Thompson’s neck and only
attempted to stop the man from thrashing his head around.
5
The record reveals that the entire incident, from the time
when Thompson stepped from the vehicle until he was suc-
cessfully cuffed, lasted not more than two minutes.
6
It was later confirmed at autopsy that Thompson had indeed
died, at least in part, due to asphyxiation.
7
It is undisputed that, at no time, did the officers render any
manner of first aid to Thompson while awaiting the ambu-
lance’s arrival.
No. 04-3177 7
A. Thompson’s Family Files Suit
Following Thompson’s death, an autopsy was conducted.
In a report issued on April 12, 2001, from the medical
examiner who conducted the autopsy, a Dr. Lifschultz,
concluded that “James Thompson died as a result of
asphyxia due to a choke hold,” but also determined that
Thompson was suffering from “[h]ypertensive cardio-
vascular disease and opiate intoxication,” which in turn
were found to be contributory causes of his death.
On November 16, 2001, Thompson’s wife, Paulette
White-Thompson, and his mother, Lee Thompson,8 filed
suit against the City and eleven officers in the Federal
District Court for the Northern District of Illinois. The
original complaint was followed by two amended com-
plaints9 seeking damages arising from Thompson’s death
under both state and federal law. The second amended
complaint alleged that the City and the officers, in
both their individual and official capacities, had violated
Thompson’s Fourth and Fourteenth Amendment rights
under the United States Constitution when denying him
equal protection and due process with the use of excessive
force while taking him into custody. See 42 U.S.C. § 1983.
In addition, the complaint averred common law causes of
8
Thompson’s mother sued as the administrator of her son’s
estate. She and Thompson’s wife also brought individual claims.
9
In the original complaint, ten of the officers had not been
identified by name and were sued as Doe defendants. Only
Detective Raymond Kaminski, who had personal contact with
Thompson’s wife, was named in the complaint. The first
amended complaint was filed on April 15, 2002, listing the
previously unnamed police officers; Officers Bradley Hespe, Eric
Reyes, Brendan Dougherty, Shawn Rellinger, Brian Cygnar,
Michael Kozenko, Anthony Bauman, Mark Golosinski, Jose
Cardo, Nicholas Spanos and Detective John Fitzsimmons.
8 No. 04-3177
action for wrongful death and civil conspiracy under
Illinois state law. Following discovery, the defendants
moved for summary judgment on all claims.
The trial judge granted the summary judgment motion
in part and dismissed the plaintiffs’ equal protection
claims under § 1983 as well as the state common law and
civil conspiracy claims as to all of the defendants.10
Thompson v. City of Chicago, No. 01-C-8883, at *10-17
(N.D. Ill. May 27, 2004). Further, the plaintiffs’ wrongful
death claims were dismissed as to all of the officers
named except for Officer Hespe, who had allegedly ap-
plied the fatal choke hold. Id. at *12-13. The plaintiffs
later voluntarily dismissed the other ten on-scene officers
from the suit, leaving only the City11 and Officer Hespe
as defendants.
Prior to trial, the remaining defendants filed a number
motions in limine. One motion sought to exclude any
10
The district court also granted summary judgment to Thomp-
son’s wife and mother on their individual due process and equal
protection claims brought under the Fourth Amendment. See
supra n.6, and accompanying text. The court found that the
individual claims should be dismissed on the merits and did
not reach the defendants’ lack of standing argument. However,
as discussed infra, the trial judge could have properly dis-
missed the individual § 1983 claims on precisely that ground.
See infra n.25.
11
While it is well-established that “a municipality cannot be
held liable under § 1983 on a respondeat superior theory,”
Monell v. New York City Dep’t of Soc. Services, 436 U.S. 658, 691
(1978), this is not true for a wrongful death suit under Illinois
law, see Larson v. State, 50 Ill. Ct. Cl. 1, 5-6 (1997). Thus,
because Officer Hespe was sued in both his individual and offi-
cial capacities, and because the state law wrongful death
claim against him survived summary judgment, the City like-
wise remained in the case as a defendant.
No. 04-3177 9
reference in testimony, evidence or argument to the CPD’s
General Orders, policies and procedures.12 The other
sought to bar expert testimony that the plaintiffs intended
to introduce through a CPD Office of Professional Stan-
dards inspector and a CPD sergeant who investigated
the allegations of excessive force during Thompson’s
arrest. The plaintiffs intended to ask these experts
whether Officer Hespe: (a) used excessive force; or (b)
violated any CPD General Orders, policies or procedures
when arresting Thompson. The City and Officer Hespe
argued that the probative value of such evidence was
substantially outweighed by the danger of unfair prej-
udice and that it would not aid the jury in reaching a
decision but would cause confusion. The district court
agreed and granted the motions in limine under Rules 401
and 403 of the Federal Rules of Evidence.
B. The Trial
The trial commenced on July 12, 2004, with both sides
introducing evidence from CPD officers as well as various
medical experts. The plaintiffs began by examining
Dr. Lifschultz, a forensic pathologist and a Cook County,
Illinois, medical examiner, who ruled that Thompson died
by asphyxiation caused, at least in part, by a choke hold.
Dr. Lifschultz testified that his examination of Thompson
revealed a number of external and internal injuries,
12
Although the trial judge granted the motion, the docket entry
for the order did not include the phrase “exclude any reference.”
Instead it merely said: “Defendant’s motion in limine to exclude
evidence of Chicago Police Department General Orders, policies
and procedures . . . is granted.”
10 No. 04-3177
including self-inflicted bite marks on the tongue,13 hemor-
rhaging in the soft tissue covering the vocal box14 and
thyroid glands, and hemorrhaging into Thompson’s
sclerae.15 According to Dr. Lifschultz, all of these injuries
were consistent with death by asphyxia due to a choke
hold. He admitted, however, that he did not reach that
conclusion based on medical evidence alone, but also
reviewed the police reports concerning the incident. Dr.
Lifschultz further discussed other factors which may
have contributed to Thompson’s death, such as the fact
that he was suffering from hypertensive cardiovascular
disease with a markedly enlarged heart and that he
was under the influence of opiates prior to and during the
time he was struggling with the police.
The plaintiffs called another forensic pathologist, Dr.
Kris Sperry, Chief Medical Examiner for the State of
Georgia, to testify regarding the cause of Thompson’s
death. Dr. Sperry agreed with Dr. Lifschultz that the
pressure applied to Thompson’s neck initiated a fatal
heart arrhythmia, which is what actually lead to his
death. Dr. Sperry acknowledged, however, that Thomp-
son’s pre-existing heart disease16 and the presence of
morphine in his blood also contributed to the fatal ar-
rhythmia. He also admitted that the car chase, the subse-
quent crash, and the struggle with police could have
13
Dr. Kris Sperry, Chief Medical Examiner for the State of
Georgia, and an expert medical witness for the plaintiffs,
testified that the bite marks were the result of the “direct
trauma” of the car crash and deployment of the air bags.
14
Caused by pressure being applied to the neck.
15
Commonly known as the whites of the eyes.
16
Dr. Sperry estimated that Thompson’s heart was enlarged
“between two and three times normal size.”
No. 04-3177 11
increased Thompson’s adrenaline level, heart rate, and
blood pressure.17 Dr. Sperry conceded that the autopsy
report revealed no neck injuries to Thompson and noted
that, while prolonged neck compression causes a person to
pass out and quit breathing within seconds, Thompson
was conscious and still struggling after Officer Hespe
released him.
Next on the stand for the plaintiffs was Sergeant Jackie
Campbell, an instructor at the Chicago Police Academy at
the time of Thompson’s death, who provided expert
testimony concerning the circumstances under which the
CPD guidelines authorize the use of force against a
suspect. The sergeant testified that the CPD had a con-
trol tactics program in place which was intended to
familiarize officers with when the use of force would be
constitutionally and statutorily authorized. Sgt. Campbell
described three levels of assailants that officers are
trained and taught to identify at the Chicago Police
Academy: (a) low-level; (b) mid-level; and (c) high-level.
Sgt. Campbell stated that the authorized use of force for
each level ranges from no force, or just verbal commands,
for low-level assailants, to the use of impact weapons18
for high-level assailants.19 Sgt. Campbell went on to testi-
17
Dr. Sperry’s testimony was corroborated by the testimony of
defense expert, Dr. Peter Santucci, a cardiac electrophysiologist
on the staff of Loyola University Medical Center in Chicago.
Dr. Santucci stated that, as the stress of the night’s events
increased, it is likely that Thompson’s blood pressure rose and
extra beats of his heart started to increase, leading to the
fatal arrhythmia.
18
So-called “impact weapons” could be anything from pepper
spray and punching to the use of a baton.
19
However, Sgt. Campbell also stated that the lethal force was
only to be used on high-level, high-risk assailants, i.e., those
(continued...)
12 No. 04-3177
fy that a choke hold would constitute deadly force and
would be unwarranted against a suspect resisting arrest in
the manner of Thompson, who would be considered a mid-
or low-level assailant.20 In addition, Sgt. Campbell made
clear that Chicago police officers are not trained to use
choke holds and that the use of a choke hold would be
contrary to the officers’ training and departmental proce-
dures.21
Finally, the plaintiffs called Dr. Geoffrey Alpert, Ph.D.,
professor of criminology at the University of South
Carolina.22 According to Alpert, while the officers were
undeniably entitled to use physical force against
Thompson23 based on his level of resistance, they were not
authorized to use lethal force under Chicago police proce-
19
(...continued)
that posed a threat of serious bodily injury or death to officers
and the public.
20
She added that the use of deadly force on a hypothetical low-
or mid-level assailant would, in her opinion, be “excessive.”
21
When asked whether officers would be allowed to use a
choke hold against a person resisting arrest, Sgt. Campbell
stated: “We don’t train to use choke holds.” She also testified that
the use of choke holds have not been taught since 1983.
22
The plaintiffs also called a number of other witnesses, includ-
ing the two paramedics who arrived on the scene to find Thomp-
son dead. Thompson’s mother, wife, and other relatives ap-
peared as damages witnesses. Their testimony is largely sum-
marized in the preceding section of this opinion or is irrelevant
to the issues on appeal.
23
Dr. Alpert highlighted the fact that Thompson was an extraor-
dinarily large man and that he was using physical force
against the officers in an attempt to resist arrest.
No. 04-3177 13
dures in place at the time.24 Alpert added that instead
of administering a choke hold which constitutes deadly
force, the officers could have tackled him, incapacitated
him with pepper spray, or even used a baton on him below
the waist.
The defense countered with the testimony of two experts
of their own. Dr. Peter Santucci, a cardiac electro-
24
While Alpert was being questioned about whether officers
would be justified in putting a choke hold on Thompson, the
following colloquy took place:
Q: Now, did you also come to an opinion as to whether
Officer Hespe’s actions exhibited a conscious disre-
gard for Mr. Thompson’s welfare?
A: Yes, sir.
Q: What’s your opinion in that regard?
A: Well it did because the use of that type of hold, that type
of choking mechanism, is deadly force and unjustified;
and, therefore, it is likely to cause an injury or death,
and there’s just no room for it in this situation.
Q: Now, based on your review of the Chicago Police De-
partment documents in this case, are Chicago police
officers trained in the risks of choke holds?
A: In the sense that—they’re not trained to do choke holds.
As I said earlier, since 1983, I believe it was, they have
not been trained in using a choke hold; and, therefore,
it’s against policy.
***
Q: Now, although officers are not trained in the use of a
choke hold here in Chicago, are there circumstances
that they might use it?
A: Yes, sir.
Q: When?
A: When their life is in jeopardy.
14 No. 04-3177
physiologist and assistant professor at the Loyola Uni-
versity Medical Center in Chicago, Illinois, testified that
Thompson’s heart was irregular as a result of severe
cardiomyopathy, hypertension, obesity, and a markedly
enlarged heart. According to Dr. Santucci, it was these
conditions, coupled with increased adrenaline levels due
to stress (e.g., the car chase, wreck and struggle with
police), which led to a sustained arrhythmia, cardiac arrest
and death, not the choke hold. Similarly, Dr. Charles
Wetli, Chief Medical Examiner and Director of Forensic
Sciences for Suffolk County, New York, concluded that
Thompson died from cardiac arrhythmia precipitated by
his severely compromised heart and the physical exertion
associated with his altercation with the police.
In addition to the medical experts, the defense called
a number of officers who testified about their experiences
the evening of Thompson’s death. Each of the officers
recounted the details of the chase and the resulting
confrontation with Thompson, as well as their trying as
hard as they could so they might restrain him while
they attempted to handcuff him. Except for Officer Hespe,
who candidly admitted placing his arm over Thompson’s
neck in an effort to keep him from thrashing around, none
of the officers recalled Officer Hespe putting Thompson
in a choke hold. But, while Officer Hespe admitted plac-
ing his arm around Thompson’s neck, he specifically
denied placing any pressure on his neck.
On July 21, 2004, the jury returned their verdict, finding
for the defendants on all counts. The plaintiffs moved for
a new trial pursuant to Rule 59(a) of the Federal Rules of
Civil Procedure, which was denied. The plaintiffs ap-
pealed.
No. 04-3177 15
II. ISSUES
On appeal, the plaintiffs-appellants challenge only the
district court’s pre-trial rulings on the two motions in
limine. The Thompsons insist that the trial court erred
when it barred them from presenting evidence concern-
ing the CPD’s General Orders pertaining to the appropri-
ate use of force. They also maintain that it was reversible
error for the trial judge to preclude them from eliciting
expert testimony from Inspector James Lukas and Sgt.
Jackie Campbell of the CPD concerning whether or not
Officer Hespe used excessive force when he was attempt-
ing to subdue and control Thompson. The Thompsons urge
this court to remand for a new trial.25
25
In addition to remanding for a new trial, the Thompsons ask
us to order the district court to reinstate their individual 42
U.S.C. § 1983 claims that were dismissed at the summary
judgment stage. Specifically, they argue that they have stand-
ing to bring such a claim based on their familial relationship
to James Thompson. While we need not reach this issue, because
we find remand unnecessary, see infra, it is worth noting that
their § 1983 claim was properly dismissed. The Thompsons
predicate their argument in this respect on this court’s decision
in Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir. 1984), which
implicitly recognized a plaintiff ’s right to recover on the basis
of an alleged violation of the constitutional rights of an immedi-
ate family member. See Bell, 746 F.2d at 1243-47. However, Bell
has been expressly overruled by Russ v. Watts, 414 F.3d 783, 787-
91 (7th Cir. 2005). In Russ, we reexamined the holding in Bell
and concluded that “finding a constitutional violation based on
official actions that were not directed at the parent-child
relationship would stretch the concept of due process far beyond
the guiding principles set forth by the Supreme Court.” Id. at
790. Accordingly, as in Russ, Thompson’s mother and wife do
not have standing to pursue a § 1983 action against the City of
Chicago or Officer Hespe, as they have not even alleged that
(continued...)
16 No. 04-3177
III. ANALYSIS
When reviewing a district judge’s evidentiary rulings, we
apply the abuse of discretion standard. See United States
v. Hale, 448 F.3d 971, 985 (7th Cir. 2006). Under this
standard, “[w]e give special deference to the district
court’s assessment of the balance between probative
value and prejudice because that court is in the best
position to make such assessments.” See id. (citing United
States v. Turner, 400 F.3d 491, 499 (7th Cir. 2005)); see
also United States v. Denberg, 212 F.3d 987, 992 (7th Cir.
2000) (“The district court’s determination of the admissi-
bility of evidence is treated with great deference be-
cause of the trial judge’s firsthand exposure to the wit-
nesses and the evidence as a whole, and because of [her]
familiarity with the case and ability to gauge the likely
impact of the evidence in the context of the entire pro-
ceeding.”). Taking into consideration this special degree
of deference given to the district court’s evidentiary
rulings, “we will not reverse unless ‘the record contains no
evidence on which [the trial judge] rationally could have
based [her] decision.’ ” Okai v. Verfuth, 275 F.3d 606, 610
(7th Cir. 2001) (quoting United States v. Walton, 217 F.3d
443, 449 (7th Cir. 2000)).
A. Admissibility of the CPD’s General Orders Regarding
Use of Force
As stated heretofore, the defendants-appellees filed a
pretrial motion in limine asking the trial court to ex-
clude the CPD’s General Orders concerning the appro-
25
(...continued)
Thompson was killed “for the specific purpose of terminating
[Thompson’s] relationship with his family.” Id.No. 04-3177 17
priate use of force. The district court granted the defen-
dants’ motion in limine pursuant to Federal Rules of
Evidence 401 and 403, concluding that “such evidence
[was] not relevant and that the probative value of such
evidence [was] substantially outweighed by the danger of
unfair prejudice and jury confusion.” See Order Granting
Defendant’s Motion in Limine to Exclude Evidence, Thomp-
son v. City of Chicago, No. 01-C-8883 (N.D. Ill. July 7,
2004); Fed. R. Evid. 401, 403. On appeal, the Thompsons
argue that the CPD’s General Orders were relevant under
Federal Rule of Evidence 401, because the Orders would
have given the jury an objective criteria with which to
judge the officer’s action and that the introduction of
such evidence actually would have allayed rather than
perpetuated jury confusion under Rule 403. We disagree.
1. Federal Rule of Evidence 401
Evidence is relevant when it has “any tendency to make
the existence of any fact that is of consequence to the
determination of the action more probable or less probable
than it would be without the evidence.” Fed. R. Evid. 401
(emphasis added). “To be relevant, evidence need not
conclusively decide the ultimate issue in a case, nor
make the proposition appear more probable, ‘but it must in
some degree advance the inquiry.’ ” E.E.O.C. v. Indiana
Bell Telephone Co., 256 F.3d 516, 533 (7th Cir. 2001)
(Flaum, C.J., concurring in part & dissenting in part)
(quoting 1 J. Weinstein & M. Berger, Weinstein’s Federal
Evidence § 401.04 [2][b]).
In this case, the text of the CPD’s General Orders
pertaining to the use of force would not have been of any
consequence whatsoever and would have failed to ad-
vance the inquiry into whether Officer Hespe violated
Thompson’s Fourth Amendment rights by using excessive
18 No. 04-3177
force in apprehending him. In order to establish an
excessive force claim under § 1983, plaintiffs must demon-
strate that a state actor’s use of force was “objectively
unreasonable” under the circumstances. See DeLuna v.
City of Rockford, Ill., 447 F.3d 1008, 1010 (7th Cir. 2006)
(citing Graham v. Connor, 490 U.S. 386, 396-97 (1989)).
What constitutes “reasonableness” with regard to an
officer’s actions in apprehending a suspect under the
Fourth Amendment is “ ‘not capable of precise definition or
mechanical application’ but ‘requires careful attention to
the facts and circumstances of each particular case,
including the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the
officers or others, and whether he is actively resisting
arrest or attempting to evade arrest by flight.’ ” Abdullahi
v. City of Madison, 423 F.3d 763, 768 (7th Cir. 2005)
(quoting Graham, 490 U.S. at 396). The reasonableness of
a particular use of force “must be judged from the perspec-
tive of a reasonable officer on the scene, rather than
with the 20/20 vision of hindsight.” Graham v. Connor, 490
U.S. 386, 396 (1989). This calculus of reasonableness must
allow for the fact that police officers are often forced to
make split-second judgments in circumstances that are
tense, uncertain, and rapidly evolving about the amount of
force that is necessary in a particular situation. Id. at 387.
The fact that excessive force is “not capable of precise
definition” necessarily means that, while the CPD’s
General Order may give police administration a framework
whereby commanders may evaluate officer conduct and
job performance, it sheds no light on what may or may
not be considered “objectively reasonable” under the
Fourth Amendment given the infinite set of disparate
circumstances which officers might encounter. Indeed, the
CPD’s General Orders state that they are intended merely
to “provide members guidance on the reasonableness of a
No. 04-3177 19
particular response option,” when taking a suspect into
custody.26 See CPD General Order 02-08(III)(D).
What’s more, this court has consistently held that “42
U.S.C. § 1983 protects plaintiffs from constitutional
violations, not violations of state laws or, in this case,
departmental regulations and police practices.” Scott v.
Edinburg, 346 F.3d 752, 760 (7th Cir. 2003); see Pasiewicz
v. Lake County Forest Preserve Dist., 270 F.3d 520, 526
(7th Cir. 2001); Soller v. Moore, 84 F.3d 964, 969 (7th Cir.
1996). In other words, the violation of police regulations
or even a state law is completely immaterial as to the
question of whether a violation of the federal constitu-
tion has been established. See id. In Scott, the plaintiff in
a Fourth Amendment excessive force action sought to
defeat summary judgment based on affidavit testimony
demonstrating that a police officer who shot into a moving
vehicle breached a municipality’s police procedures and
thus violated the Fourth Amendment’s excessive force
prohibition. The district court granted summary judgment
and we affirmed, holding that “whether [the officer’s]
conduct was either good police practice or a violation of
Illinois law” was immaterial to whether he violated the
Fourth Amendment. Id. at 760, 761.
In Whren v. United States, the Supreme Court addressed
the use of police manuals and standard procedures to
26
CPD General Order 02-08(III)(C) acknowledges the Supreme
Court’s seminal decision in Graham v. Connor, 490 U.S. 386(1989) and states that: “Reasonableness is not capable of precise
definition or mechanical application. Circumstances that may
govern the reasonableness of using a particular force option
include, but are not limited to: a. the severity of the crime
at issue, b. whether the subject poses an immediate threat to
the safety of the officer or others, [and] c. whether the subject
is actively resisting arrest or attempting to evade arrest by
flight.”
20 No. 04-3177
evaluate what a “reasonable officer” would do under the
Fourth Amendment in the context of a traffic stop. 517
U.S. 806, 815-16 (1996). The Court concluded that because
police rules, practices and regulations vary from place to
place and from time to time, they are an unreliable gauge
by which to measure the objectivity and/or reasonable-
ness of police conduct. Id. at 815. Although Whren in-
volved the constitutionality of searches rather than
excessive force, both inquiries—whether a search is con-
stitutional and whether the officer has used excessive
force—involve an evaluation of the “reasonableness”
standard of an officer’s conduct under a particular set
of facts and circumstances. See id.; Tanberg v. Sholtis, 401
F.3d 1151, 1163 (10th Cir. 2005). Accordingly, we are
confident that, if confronted with the question of whether
police manuals, guidelines or general orders are “reliable
gauges” of the reasonableness of an officer’s use of force,
the Court would reach the same conclusion that it did
in Whren.
Whether Officer Hespe’s conduct conformed with the
internal CPD General Orders concerning the use of force
on an assailant was irrelevant to the jury’s determination
of whether his actions on December 5, 2000 were “objec-
tively reasonable” under the Fourth Amendment. It may be
that Officer Hespe’s possible violation of the CPD’s Gen-
eral Orders is of interest to his superiors when they are
making discipline, promotion or salary decisions, but that
information was immaterial in the proceedings before the
district court and was properly excluded. Instead, the jury
in all probability properly assessed the reasonableness of
Officer Hespe’s split-second judgment on how much force
to use by considering testimony describing a rapidly
evolving scenario in which Thompson attempted to evade
arrest by leading the police on a high speed chase, crashed
his car, and actively resisted arrest.
No. 04-3177 21
2. Harmless Error
Even if we were to assume arguendo that evidence
concerning the CPD’s General Orders, policies and proce-
dures were improperly excluded, any such error was
harmless. See, e.g., Barber v. Ruth, 7 F.3d 636, 641 (7th
Cir. 1993). As this court has consistently held, “[n]o error
in either the admission or exclusion of evidence is
ground[s] for . . . vacating, modifying, or otherwise disturb-
ing a judgment or order, unless refusal to take such action
appears to the court inconsistent with substantial justice.”
Goodman v. Illinois Dept. of Financial and Professional
Reg., 430 F.3d 432, 439 (7th Cir. 2005) (quoting Speedy v.
Rexnord Corp., 243 F.3d 397, 404 (7th Cir. 2001)). In other
words, “[e]ven an erroneous evidentiary ruling can be
deemed harmless if the record indicates that the same
judgment would have been rendered regardless of the
error.” Id. Such is certainly the case here.
While direct reference to the CPD’s General Orders was
avoided at trial, references and testimony concerning
the CPD policies and procedures were ubiquitous during
the proceedings. For example, Sgt. Campbell testified at
length concerning the CPD’s use of force guidelines and
answered a number of questions regarding what use of
force would have been authorized in a situation like the
one the officers encountered with Thompson. See supra,
pp. 11-12. Regarding the application of choke holds, Sgt.
Campbell specifically stated that such a procedure was
not authorized by the CPD and that officers had not
been trained in such a technique since 1983. See id. at
p. 12 n.21. In addition, Sgt. Campbell stated that a choke
hold constituted deadly or lethal force and that such force
would not have been authorized for an assailant behaving
in a manner similar to that of Thompson. See id.
Another witness, Dr. Alpert, also testified regarding
CPD regulations and procedures and corroborated Sgt.
22 No. 04-3177
Campbell’s testimony. Specifically, Alpert testified that
the officers who arrested Thompson would not have been
entitled to use lethal force when attempting to subdue him
pursuant to CPD procedures in place at the time. Further,
Alpert gave his response to a number of questions re-
garding the propriety of choke holds. Like Sgt. Campbell,
he stated that since the mid-1980s, the CPD had not
authorized the technique and that officers were not
allowed to use the procedure under any circumstances. He
added that, if such a procedure were used, it would
constitute deadly force, which as he stated earlier in his
testimony would not have been applicable to Thompson
under the circumstances because his resistence did not
place the public or the officers in peril of serious bodily
injury or death at the time he was being handcuffed.
Alpert added that, in lieu of deadly force, i.e., a choke hold,
the officers could have employed a number of techniques
in attempting to quell Thompson’s resistance, such as
employing pepper spray (one or a number of sprays to the
facial area) to blind, confuse, and subdue him temporarily.
See id.
Given that evidence of the CPD’s policies, values, and
procedures was introduced at length at trial on direct
and cross-examination, it would have been of very little
help to the Thompsons’ cause to introduce the actual text
and provision numbers of the CPD’s General Orders. As
such, even if such evidence were relevant, which we have
concluded it was not, any error in failing to allow such
evidence to be admitted was harmless because “the same
judgment would have been rendered regardless of the
error.” Goodman, 430 F.3d at 439.
3. Federal Rule of Evidence 403
As discussed above, the law is clear that introduction of
evidence of the CPD’s General Orders was immaterial to
No. 04-3177 23
the Thompsons’ § 1983 claims. Nonetheless, the
Thompsons argue that this evidence would have been
relevant to their wrongful death claims under state law.
While we assume, without deciding, that the CPD’s
General Orders were relevant to the Thompsons’ wrong-
ful death claim, we conclude that they were properly
excluded under Rule 403.
Rule 403 provides a district court with discretion to
exclude evidence where “its probative value is substan-
tially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury.” This
court has explained that “ ‘[e]vidence is considered unfairly
prejudicial, not merely because it damages the opposing
party’s case, but also because its admission makes it
likely that the jury will be induced to decide the case on
an improper basis, commonly an emotional one, rather
than on the evidence presented . . . .’ ” United States v.
Connelly, 874 F.2d 412, 418 (7th Cir. 1989) (quoting Young
v. Rabideau, 821 F.2d 373, 377 (7th Cir. 1987)).
Under the Illinois Wrongful Death Act, 740 ILCS 180/1,
a plaintiff must establish that the: “(1) defendant owed a
duty to decedent; (2) defendant breached that duty; (3) the
breach of duty proximately caused decedent’s death; and
pecuniary damages arising therefrom to persons desig-
nated under the Act.” Leavitt v. Farwell Tower Ltd. P’ship,
625 N.E.2d 48, 52 (Ill. App. Ct. 1993). Thus, under the Act,
the breach of duty is an important determination. A
problem with allowing the CPD’s General Orders into
evidence is that those orders do not create a duty to the
public at large. See Morton v. City of Chicago, 676 N.E.2d
985, 992 (Ill. App. Ct. 1997) (stating the oft-reiterated
proposition under Illinois law that “the violation of
self-imposed rules or internal guidelines, such as Gen-
eral Order 81-8, does not normally impose a legal duty,
let alone constitute evidence of negligence, or beyond
24 No. 04-3177
that, wilful and wanton conduct”); Blankenship v. Peoria
Park District, 647 N.E.2d 287, 291 (Ill. App. Ct. 1995)
(stating: “While the violation of a statute or ordinance
designed to protect human life or property is prima facie
evidence of negligence, a legal duty is normally not estab-
lished through rules or internal guidelines, and the failure
to comply with self-imposed regulations does not necessar-
ily impose upon municipal bodies and their employees a
legal duty”) (internal citations and quotations omitted)
(italics in original). As mentioned above, the General
Orders regarding use of force are intended only “in order
to provide members guidance on the reasonableness of a
particular response” to the actions of an assailant. See
CPD General Order 02-08(III)(D).
While it may be that failure to adhere to the General
Orders may cause an officer problems with his superiors
in the CPD, or possibly even lead to disciplinary proceed-
ings against him or her, they have little or no bearing
on whether the officer breached his duty of care in ap-
prehending Thompson. Any limiting instruction explain-
ing to the jury that, although the General Orders do not
create a duty on the part of an officer and can only be used
as evidence of a breach of protocol in a disciplinary
proceeding—and that they could not be considered in
conjunction with the plaintiffs’ § 1983 claims—would have
led to unnecessary and detrimental jury confusion. See,
e.g., Tanberg, 401 F.3d at 1164-65. In short, evidence
about the specifics of the CPD’s General Orders might
very well have contributed to unfair prejudice and would
have caused confusion regarding the plaintiffs’ wrongful
death claims. Accordingly, the district court did not
abuse its discretion in excluding such evidence.
No. 04-3177 25
B. Admissibility of Expert Testimony Concerning Exces-
sive Force
The Thompsons also challenge the district court’s
exclusion of expert testimony from Inspector James Lukas
of the CPD’s Office of Professional Standards and Sgt.
Jackie Campbell, regarding whether Officer Hespe vio-
lated the Fourth Amendment by using excessive force
when apprehending Thompson. The trial judge granted
the defense motion in limine pursuant to Federal Rule of
Evidence 403, stating that the “probative value of such
evidence [was] substantially outweighed by the danger
of unfair prejudice” and that evidence of that nature
would pose the “danger of unfair prejudice and jury con-
fusion.” Order Granting Defendants’ Motion in Limine to
Exclude Evidence, Thompson v. City of Chicago, No. 01-C-
8883 (N.D. Ill. July 7, 2004). We agree.
As referred to above, the question of whether a police
officer has used excessive force in arresting a suspect is
a fact-intensive inquiry turning on the reasonableness of
the particular officer’s actions in light of the particular
facts and circumstances of the situation faced. See, e.g.,
DeLuna, 447 F.3d at 1010. What is reasonable under any
particular set of facts is “not capable of precise definition
or mechanical application.” Abdullahi, 423 F.3d at 768.
Accordingly, whatever insight Inspector Lukas and Sgt.
Campbell might have had into whether or why Officer
Hespe used excessive force would have been of little value
except as to possibly causing confusion and bore a substan-
tial risk of prejudice. The jury, after having heard all of
the evidence presented, was in as good a position as the
experts to judge whether the force used by the officers to
subdue Thompson was objectively reasonable given the
circumstances in this case. Introducing two experts to
testify that Officer Hespe used excessive force would have
induced the jurors to substitute their own independent
conclusions for that of the experts. In other words, they
26 No. 04-3177
would have been “induced to decide the case on an im-
proper basis . . . rather than on the evidence pre-
sented . . . ,” which is precisely why the evidence should
have been excluded.27 Connelly, 874 F.2d at 418.
IV. CONCLUSION
We conclude that the district judge did not abuse her
discretion in granting the defendants-appellees’ motions
in limine, thus we need not determine whether a new trial
is warranted. The decision of the district court is
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
27
Additionally, testimony by Inspector Lukas and Sgt. Campbell
regarding whether Officer Hespe used excessive force would
have likely involved a discussion of the CPD’s General Orders,
which as we have decided are not relevant. See supra, Part III.A.
USCA-02-C-0072—12-19-06