Larry Nelson v. City of Chicago

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 12-3401
LARRY NELSON,
Plaintiff-Appellant,
v.
CITY OF CHICAGO, RONALD LIS,
ELIZABETH WILSON, RICHARD
NOVOTNY, and BRADLEY RUZAK,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 09 C 883 — Rebecca R. Pallmeyer, Judge.
____________________
ARGUED DECEMBER 4, 2014 — DECIDED JANUARY 20, 2016
____________________
Before BAUER, RIPPLE, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Larry Nelson was driving home one
night when four Chicago police officers in two squad cars
pulled him over, pointed a gun in his face, threatened to kill
him, handcuffed him, and searched his car for no apparent
reason. The officers have no recollection of the stop but insist
that it couldn’t have happened the way Nelson said it did.
2 No. 12-3401
Their squad-car computers, however, confirm that they ran
Nelson’s name through the law-enforcement database at the
time of the stop and turned up nothing that would justify
stopping him and searching his car.
Nelson sued the officers and the City of Chicago under
42 U.S.C. § 1983 alleging that the seizure and search violated
his rights under the Fourth Amendment. A jury found for
the defendants. On Nelson’s posttrial motion, the district
judge ordered a new trial based on an instructional error but
later reversed course and reinstated the verdict.
Nelson’s appeal raises no fewer than seven claims of er-
ror. Three have merit. First, and most significantly, the
district judge should not have admitted evidence of Nelson’s
arrest record. A second error occurred when the defense
attorney was allowed to cross-examine Nelson about other
civil suits he had filed against the City. Third, the judge
improperly allowed one of the officers to offer generalized
testimony about when the police might be justified in using
firearms and handcuffs during a traffic stop. These errors
were not harmless. Nelson is entitled to a new trial.
I. Background
Larry Nelson spent the evening of February 11, 2008,
meeting with supporters of his unsuccessful campaign for
Democratic committeeman in Chicago’s 24th Ward. The
election was just six days earlier, and he still had dozens of
campaign signs and brochures in the back of his white Ford
Windstar minivan. By 9:30 p.m. Nelson had left the gather-
ing and was on his way home. He stopped for gas near the
intersection of North Pulaski Road and West Iowa Street, an
No. 12-3401 3
area that was under heightened surveillance by Chicago
police because of its high crime rate.
Two police cruisers followed Nelson into the gas station.
After paying for his gas, Nelson began to drive away. The
police followed him, activated their lights, and pulled him
over.
What happened next is disputed—sort of. The four offic-
ers involved—Bradley Ruzak and Elizabeth Wilson in one
squad car, Richard Novotny and Ronald Lis in the other—do
not remember anything about the stop. They had made
thousands of traffic stops (Officers Ruzak and Wilson
stopped more than 40 drivers that night alone), and appar-
ently nothing about their interaction with Nelson left an
impression. But we do know that the officers used the laptop
computers in their squad cars to run Nelson’s name through
the Illinois Secretary of State’s database listing vehicle regis-
trations and the Law Enforcement Agencies Data System
(“LEADS”), which lists arrest warrants. One of the squad-car
computers conducted a database search of Nelson’s name at
9:44 p.m., the other at 9:50 p.m. These queries revealed that
Nelson’s car was properly registered and there were no
warrants for his arrest.
While the officers remember nothing about the traffic
stop, Nelson says he will never forget it. At trial he testified
that Officer Ruzak approached his minivan with his gun
drawn and aimed at his head. Nelson told the jury that he
could see a red laser sight pointed at his face. Nelson turned
off the engine of his van, threw the keys on the dashboard,
and put his hands up. Officer Novotny then ordered him out
of the van, but Officer Ruzak said, “Don’t move or I’ll blast
your ass!” three times. Faced with conflicting orders, Nelson
4 No. 12-3401
stayed put. Officer Novotny then opened the car door and
dragged Nelson out, saying, “Next time somebody tell[s]
you to move, you know, you move.” Nelson was placed in
handcuffs. When he asked why, the officers told him to
“shut up.”
Nelson testified that the officers then searched him and
took his driver’s license from his pocket. They passed the
license between them and appeared to enter his name into
the laptops in their squad cars. He testified that all four
officers then searched the minivan and appeared confused
when they found campaign materials. Officer Wilson asked,
“Who [is] Larry Nelson?” and her tone changed “360 de-
gree[s]” when Nelson replied that it was his name on the
signs. About 25 or 30 minutes after initiating the traffic stop,
the officers told Nelson he was free to go. The laptop in one
of the squads recorded a search of someone else’s name at
9:56 p.m. Nelson was not given a traffic ticket, nor was he
cited for any other violation of the law. None of the officers
filed a “contact card” to document the stop, as required by
departmental policy.
When Nelson got home, he called a district commander
whom he knew from his community-outreach work and
asked for advice. The commander suggested that Nelson call
the Independent Police Review Authority (“IPRA”) and ask
it to retain copies of any street camera footage from the area
where the stop occurred. Nelson made this request in a
timely manner. Two days later he was interviewed by an
IPRA investigator. The investigator’s report—which Nelson
signed but claims not to have reviewed—stated that the stop
began at 10:05 p.m. rather than shortly after 9:30 p.m. As a
No. 12-3401 5
result of this discrepancy, the wrong video recording was
preserved and the relevant film was destroyed.
Before trial the defendants entered into formal judicial
admissions that they had “no present recollection of proba-
ble cause or reasonable suspicion sufficient for the arrest or
stop of Larry Nelson on February 11, 2008,” and that “[n]o
information obtained by Chicago police officers as a result of
the inquiries on Larry Nelson’s name on computer databases
on February 11, 2008 gave the officers any probable cause to
arrest him.” Despite these admissions, they took the witness
stand and challenged Nelson’s description of the stop. For
example, Officer Ruzak testified that he never once used a
red laser sight on his firearm or said “I’ll blast your ass.”
Officer Novotny said he never pulled anyone out of a vehicle
and never said anything like “[n]ext time you’re given an
order, follow the order.”
Numerous evidentiary skirmishes occurred at trial. Sev-
eral are relevant to Nelson’s appeal; we’ll elaborate as need-
ed later in this opinion. For now, it’s enough to say that the
general defense strategy was to convince the jury that Nel-
son was lying about what happened during the traffic stop.
As the defense attorney summed it up before the jury: “This
lawsuit is a fraud, it’s a sham, and [Nelson’s] trying to con
you.”
The jury apparently agreed, returning a verdict for the
defendants. Nelson moved for a new trial under Rule 59,
raising multiple claims of evidentiary and instructional
error. The judge initially granted the motion, finding that
one of the jury instructions was confusing. The defendants
asked the judge to reconsider that ruling; they maintained
that Nelson had waived the relevant objection. Reversing
6 No. 12-3401
course, the judge agreed, reinstated the jury’s verdict, and
entered final judgment for the defendants.
II. Discussion
On appeal Nelson reprises the arguments he made in his
Rule 59 motion. We need address only three; all relate to
evidentiary rulings made before and during trial. Most
significantly, Nelson argues that the judge improperly
admitted evidence about his prior arrests and other lawsuits
he filed against the City. He also contends that the judge
should not have allowed Officer Novotny to testify about the
general circumstances in which police officers might justifi-
ably use their guns and handcuffs during a traffic stop. 1
Evidentiary rulings are reviewed for abuse of discretion.
Cerabio LLC v. Wright Med. Tech., Inc., 410 F.3d 981, 994 (7th
Cir. 2005). “[E]ven in the face of error, we will not reverse a
judgment entered on a jury verdict unless the erroneous
ruling violated the objecting party’s substantial rights.”
Maurer v. Speedway, LLC, 774 F.3d 1132, 1135 (7th Cir. 2014)
(citation and internal quotation marks omitted). “To meet
that threshold, a significant chance must exist that the ruling
affected the outcome of trial.” Id. Whether or not an error is
harmless is determined in light of the trial record as a whole.
1 Nelson raises the following additional claims of error: (1) the officers
were erroneously permitted to testify in contradiction of their judicial
admissions, and the district court’s attempted cure was inadequate;
(2) the burden of proof was misallocated; (3) the jury instructions were
confusing; and (4) the jury’s verdict was against the manifest weight of
the evidence. Because we’re remanding for a new trial based on other
errors, we do not need to address these claims.
No. 12-3401 7
Barber v. City of Chicago, 725 F.3d 702, 715 (7th Cir. 2013).
A. Evidence of Nelson’s Prior Arrests
Between 1983 and 1999, Nelson was arrested nine
times—once for an alleged felony and eight times for alleged
misdemeanors. These arrests are ancient history (the stop at
issue here occurred in 2008), and all the charges were dis-
missed. A bit more recently, in November 2005, Nelson was
arrested and charged with the unauthorized use of a weap-
on. See Complaint, Nelson v. Balesteri, No. 06CV6316 (N.D. Ill.
Nov. 20, 2006), ECF No. 1. Unlike the other charges, this case
went to trial and Nelson was acquitted. He thereafter sued
the arresting officers. The City settled this case for $34,000,
though without admitting any wrongdoing. See Release and
Settlement Agreement, Nelson v. Balesteri, No. 06CV6316
(N.D. Ill. May 29, 2007), ECF No. 23.
Nelson moved in limine to bar evidence of his previous
arrests at trial. The judge ruled that the prior-arrest evidence
could come in only for impeachment purposes on the issue
of Nelson’s “fear of the police.” The judge later clarified the
scope of her ruling:
If Mr. Nelson were to testify, for example, “I
had never had any encounter with police be-
fore. I was terrified. I had never seen a uniform
or a badge before. … ,” then obviously he
could be impeached, if it’s possible to impeach
him, with evidence that, in fact, he has been ar-
rested before.
On direct examination Nelson testified at length about
his public-service background, including the fact that he had
occasionally worked with the police on community-outreach
8 No. 12-3401
projects. This line of questioning tried the judge’s patience
and drew repeated objections on relevance grounds from the
defense. Nelson’s counsel responded that the testimony was
offered to rebut the defense attorney’s insinuations that
Nelson was greedy, financially desperate, or had a grudge
against the police.
Nelson also testified about his emotional distress during
the traffic stop. Asked how he felt when Officer Ruzak
pointed his gun at him, Nelson said, “I was terrified, humili-
ated, ready to piss on myself, everything. I mean, I was
just—I mean, I feared for my life.” He continued on in this
same vein, saying that he felt “[e]mbarrassed, terrified. I
feared for my life. Don’t know what this man was gonna do.
I didn’t know if he gonna shoot me or whatever. He still had
his gun out.” In response to a question about how he felt
even now about his treatment during the traffic stop, he
said, “I feel embarrassed, terrified. Right now, I’m still mad
just looking at them right now as I speak.” When asked why
he was still angry despite the passage of time, Nelson an-
swered, “Because that man had—I looked death in the face
that night in that man[’s] hand.”
At the conclusion of Nelson’s direct examination, the de-
fense attorney requested a sidebar and argued that Nelson
had opened the door for admission of evidence about his
prior experience with the police—namely, his history of
arrests. The judge agreed: “If there were other episodes,
counsel [is] entitled to explore the possibility that there are
other reasons he might be terrified by police that have
nothing to do with the alleged incident.”
The defense attorney then cross-examined Nelson about
his prior arrests, asking: “And, sir, isn’t it true that you’ve
No. 12-3401 9
actually been arrested in numerous cases?” Nelson an-
swered, “I’ve been arrested before and never been found
guilty of no crime.” On redirect Nelson’s attorney made an
effort to rehabilitate, eliciting testimony that his arrests were
“a long time ago,” none resulted in a conviction, and none
involved an officer aiming a gun at his face. No limiting
instruction was given to the jury, but the judge did prohibit
counsel from making any reference to the arrests in closing
argument.
The judge later elaborated on her rationale for allowing
this cross-examination. In her ruling on Nelson’s posttrial
motion, the judge said the arrest evidence was relevant to
Nelson’s character for truthfulness and whether he was a
law-abiding citizen. But the judge hedged a bit, saying that
she “may resolve this issue differently at the second trial in
this case,” which she had ordered based on an unrelated
error. The opportunity to revisit the matter never came, of
course; the judge rescinded her new-trial order and reinstat-
ed the jury’s verdict.
Nelson claims that admitting this evidence was reversible
error. We agree. It’s well established that “[i]n general, a
witness’s arrest record will not be admissible.” Thompson v.
City of Chicago, 722 F.3d 963, 977 (7th Cir. 2013).
This rule is based upon a clear recognition of
the fact that the probative value of such evi-
dence is so overwhelmingly outweighed by its
inevitable tendency to inflame and prejudice
the jury against the [party-witness] that total
and complete exclusion is required in order
that the right to trial by a fair and impartial ju-
ry may not be impaired.
10 No. 12-3401
Barber, 725 F.3d at 709 (alteration in original) (quotation
marks omitted). Notwithstanding this general rule, the judge
allowed the defense attorney to elicit testimony that Nelson
had “numerous” prior arrests, apparently for two purposes:
(1) to impeach the implication that he was an upstanding
public servant with a good relationship with the police (the
reason the judge cited in her Rule 59 ruling); and (2) to limit
Nelson’s damages, on the theory that some of his fear of the
police may have been attributable to his earlier arrests (the
reason she gave at trial).
We start with the impeachment rationale. “Impeachment
can be effected in a number of ways, including contradiction,
which involves presenting evidence that the substance of a
witness’s testimony is not to be believed.” United States v.
Boswell, 772 F.3d 469, 476 (7th Cir. 2014). But Nelson never
made any factual statements that could be contradicted by
evidence of his prior arrests. To use the example initially
posited by the judge, he did not testify that he “never had
any encounter with the police before.” Nor did he make any
remotely similar claim on the witness stand.
In her posttrial ruling, the judge added that the evidence
of Nelson’s prior arrests was admissible to impeach his
“character for truthful and law-abiding citizenship.” We
don’t see how. First, a witness’s character for truthfulness
may be impeached only by specific instances of prior con-
duct and only “if they are probative of the character for
truthfulness or untruthfulness.” FED. R. EVID. 608(b). Unlike
a criminal conviction, an arrest is not, in itself, probative of
the arrested person’s character for truthfulness. See Michelson
v. United States, 335 U.S. 469, 482 (1948) (“Arrest without
more does not, in law any more than in reason, impeach the
No. 12-3401 11
integrity or impair the credibility of a witness. It happens to
the innocent as well as the guilty.”); cf. FED. R. EVID. 609
(permitting impeachment by evidence that the witness has
been convicted of a crime). If the specific conduct underlying
the arrest is probative of the witness’s character for truthful-
ness, the conduct itself may be inquired into on cross-
examination, subject to Rule 403 balancing for undue preju-
dice or some other ground for excluding the evidence. But
the defense attorney did not seek permission to cross-
examine Nelson about any specific conduct, nor are we
given any reason to believe that any of his arrests were based
on allegations of dishonest or untruthful conduct.
The judge’s “law-abiding citizenship” rationale for ad-
mitting this evidence is likewise flawed. Simply put, evi-
dence of a prior arrest does not support a conclusion that the
arrested person has in fact broken the law.
So it’s no surprise that the defendants have all but aban-
doned the impeachment rationale on appeal and argue
instead that the arrest evidence was relevant to the issue of
damages. Their theory is that Nelson’s history of arrests
either mitigated his fear during the traffic stop (because being
arrested was old hat for him) or augmented it (because his
numerous encounters with the police suggest that some of
his emotional injury might have been preexisting). 2
2 It is unclear whether the damages “mitigation” theory offered by the
defendants is viable given the rule that “[t]he tortfeasor takes his victim
as he finds him. That is the ‘eggshell skull’ rule, which like most princi-
ples of the common law of torts is applicable to a constitutional tort case
brought under 42 U.S.C. § 1983.” Richman v. Sheahan, 512 F.3d 876, 884
(7th Cir. 2008) (internal citations omitted).
12 No. 12-3401
We’ve cast doubt on this type of argument before. In Bar-
ber, another false-arrest case, the defense introduced evi-
dence of the plaintiff’s subsequent arrest for the sole purpose
of distinguishing between the damages attributable to the
alleged false arrest at issue in the litigation and those that
might be attributable to the later arrest. 725 F.3d at 708. We
warned against admitting a civil-rights plaintiff’s arrest
history on this theory of relevance:
[It] would seemingly permit any civil-rights
plaintiff’s criminal history to come in on the is-
sue of emotional-distress damages, no matter
how tenuous a connection the evidence has to
the issue of damages or how central a role
emotional distress plays during the plaintiff’s
case. This, of course, would be contrary to our
prior statements instructing courts to proceed
carefully when deciding to admit evidence of a
§ 1983 plaintiff’s criminal past.
Id. at 715. In Barber we held that the relevance of the plain-
tiff’s subsequent arrest was “tenuous at best,” id. at 712,
because his claim for emotional-distress damages was
closely tied to the arrest at issue in the litigation rather than
“any fear of police generally,” id. at 713.
This reasoning applies here in full. 3 Nelson’s arrest histo-
ry had “miniscule probative value” on the question of his
3 The defendants try to distinguish Barber by arguing that the evidence of
the plaintiff’s subsequent arrest in that case was necessarily less probative
of his emotional distress at the time of his false arrest than the evidence
of Nelson’s prior arrests would be here. But in either scenario, the real
question is whether the probative value of the plaintiff’s arrests is
No. 12-3401 13
damages, id. at 714; the arrests were distant in time, and
Nelson carefully limited his claimed emotional injury to the
fear he felt during the 30 minutes of the traffic stop itself.
Although he said he remained angry about the incident
despite the passage of time, he never claimed that the expe-
rience left him fearful of the police more generally.
On the other side of the ledger, the risk of prejudice from
this testimony was enormous. It’s doubtful that the jury
drew the distinction between an arrest and a legal finding of
wrongdoing; where there’s smoke, there’s fire. Even assum-
ing the jury accounted for this distinction, evidence of prior
arrests—here numerous prior arrests—generally impugns
character. And in a false-arrest case, the prejudice is even
greater because it invites the jury to draw a propensity
inference, forbidden by Rule 404(b), that the plaintiff is a
serial law breaker and general troublemaker and the police
must have had probable cause to arrest him. 4 See Barber,
725 F.3d at 714 (noting that that other-arrest evidence in a
false-arrest suit “presents a substantial risk that the jury will
render a defense verdict based not on the evidence but on
emotions or other improper motives, such as a belief that
bad people should not be permitted to recover from honora-
ble police officers”). Even considering the special deference
substantial enough to outweigh the risk of undue prejudice inherent in
this type of evidence.
4 Under Rule 404(b), evidence of “a crime, wrong, or other act” may be
admissible if it is introduced for a purpose other than a propensity
inference, such as “motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.” FED. R.
EVID. 404(b). The defendants do not contend that Nelson’s prior arrests
were otherwise admissible for any of the purposes listed in Rule 404(b).
14 No. 12-3401
we give to the trial judge’s evidentiary rulings, the evidence
of Nelson’s prior arrests should not have been admitted in
light of the narrow scope of his claimed damages and the
inherent risk of unfair prejudice.
What remains is to decide whether this error was harm-
less. Barber is instructive on this point as well. There we
noted that the damage caused by admitting evidence of this
sort in a false-arrest case is two-fold: First, it encourages the
jury to draw an improper propensity inference that the
plaintiff’s other arrest made it more likely that he was com-
mitting some crime on the day of the arrest in question; and,
second, it “provide[s] powerful ammunition to support a
jury argument that [the plaintiff] is a despicable human
being who should not be permitted to recover from the
angelic police officers being wrongly sued.” Id. at 717.
Because the trial “boiled down essentially to a credibility
contest between [the plaintiff] and the two officers,” we held
in Barber that the error was not harmless, and a new trial was
required. Id. at 715.
The risk of an improper propensity inference was even
greater here. The jury heard that Nelson had been arrested
numerous times, making him appear particularly unsympa-
thetic. The trial turned entirely on his credibility, so the harm
caused by improperly admitting this damaging evidence
would naturally be substantial. In Barber the jury was in-
structed to limit its use of the other-arrest evidence to the
question of damages; we held that the instruction did not
cure the error. Id. at 716–17. Here there was no limiting
instruction.
The defendants offer a couple of counterarguments but
we find them unavailing. They argue that the evidence of
No. 12-3401 15
Nelson’s other arrests could not have been too prejudicial
because it was elicited in a single cross-examination ques-
tion. But that single question was especially damning,
referring to “numerous” prior arrests. The defendants also
direct us to Sanchez v. City of Chicago, 700 F.3d 919, 931–32
(7th Cir. 2012), in which we found the admission of prior-
arrest evidence to be harmless error. But that case is distin-
guishable along several dimensions, not least because the
judge gave an appropriate limiting instruction. 5 The errone-
ous admission of Nelson’s prior arrests was not harmless.
B. Nelson’s Other Lawsuits
This wasn’t Nelson’s first time as a civil plaintiff. He had
previously filed two lawsuits arising out of minor traffic
accidents, including one against the Chicago Police Depart-
ment after he was accidentally hit by a police car. That case
settled for $6,000. Nelson also sued the City twice under
§ 1983 for alleged civil-rights violations. In one action, Nelson
v. Balesteri, No. 06CV6316 (N.D. Ill. 2007), he claimed that
police illegally searched his unoccupied parked car and
home and later falsely arrested him. As we’ve noted, the City
settled that case for $34,000; the State’s Attorney’s Office also
instituted a grand-jury investigation against the officers
involved. See id. at ECF No. 23. The other civil-rights suit,
5 The defendants argue that Nelson waived his objection because the
judge said she would consider a limiting instruction on this issue if
Nelson presented one, but Nelson’s attorney moved for a mistrial
instead. The judge denied the mistrial motion but prohibited the parties
from referring to the prior arrests in closing argument, calling the entire
subject “a red herring.” We’re satisfied that Nelson’s motion in limine
and his continuous objection to this evidence during trial adequately
preserved this issue.
16 No. 12-3401
Nelson v. Salgado, No. 09CV5357 (N.D. Ill. 2012), involved an
alleged use of excessive force by police during an investiga-
tive detention, which aggravated Nelson’s pre-existing
shoulder injury. That litigation was pending when this case
went to trial. In 2012 a jury found for Nelson and awarded
compensatory damages of $30,000 and $5,000 in punitive
damages. Id. at ECF No. 109.
Nelson’s motion in limine sought to exclude any refer-
ence to his other lawsuits. The judge granted the motion in
part, barring evidence of the other suits unless Nelson
opened the door to their use as impeachment evidence. After
Nelson concluded his direct testimony, the defense attorney
sought permission to cross-examine him about the prior
lawsuits, arguing that Nelson had opened the door by
“making it seem this [arrest] was so traumatizing for him.”
The judge agreed: “If the fact is he also had other episodes
that generated complaints, the jury is entitled to consider
that, because if he’s fearful from other episodes, those are
episodes that are not related to these defendants.”
The defense attorney’s first question on cross-
examination was, “Mr. Nelson, isn’t it true that this is not
your first lawsuit against Chicago Police?” Nelson answered
in the affirmative, and counsel continued on this subject for
several more questions: “And in all these cases, you allege
the police did things that were wrong to you?” and “[Y]ou
also have a case currently pending in another courtroom
against Chicago Police?” On recross the defense attorney
returned to this subject, asking Nelson if the same lawyer
was representing him in his other cases.
No. 12-3401 17
Based on this line of questioning, Nelson’s attorney
moved for a mistrial. The judge denied the motion but
issued the following admonition to the jury:
You have heard evidence that … Larry Nelson
has filed lawsuits against the City of Chicago.
A person is entitled to file a lawsuit. There is
no evidence that any of his other claims were
not valid. You may consider this evidence only
in deciding whether Larry Nelson’s testimony
concerning his damages is truthful in whole, in
part, or not at all.
Despite this limiting instruction, Nelson’s litigiousness was a
major theme of the defense. To give a flavor, we note a few
assertions from the defense attorney’s closing argument:
• It’s his burden. He knows that. He’s done
this before.
• He’s working with the lawyer that sues the
police.
• Why would he go through this litiga-
tion? … Because he’s been paid before.
That’s why. And he’s wanting it again.
• [Nelson claims] garden variety mental inju-
ries with no evidence to support it. And it’s
the same kind of injuries he’s suing the
[C]ity for in other cases.
In her ruling on Nelson’s posttrial motion, the judge ex-
plained that the evidence of the other lawsuits was admissi-
ble because it “went to whether or not these Defendants and
this incident were the source of Plaintiff’s injuries” and also
countered the idea that he enjoyed a “cordial relationship”
with the police. These are essentially the same impeachment
18 No. 12-3401
and damages rationales offered to admit evidence of Nel-
son’s arrest history, so our analysis proceeds similarly.
As a general matter, “a plaintiff’s litigiousness may have
some slight probative value, but that value is outweighed by
the substantial danger of jury bias against the chronic liti-
gant.” Mathis v. Phillips Chevrolet, Inc., 269 F.3d 771, 776 (7th
Cir. 2001) (quotation marks omitted). There are rare excep-
tions when the evidence is admitted for reasons other than
to show the plaintiff’s litigious character and it is sufficiently
probative to survive Rule 403 balancing. For example, in
Gastineau v. Fleet Mortgage Corp., 137 F.3d 490, 495 (7th Cir.
1998), a workplace sexual-harassment suit, we affirmed the
district court’s decision to admit testimony that the plaintiff
had sued three of his former employers because the evidence
was probative of his “modus operandi of creating fraudulent
documents in anticipation of litigation.” We also noted that
the evidence helped explain why the employer in that case
had kept a detailed record of the plaintiff’s actions. Id.Finally, the evidence provided insight into the plaintiff’s
mental state and alleged damages because he had not men-
tioned the earlier suits to his expert psychologist. Id.Here, however, neither of the reasons for admitting this
evidence holds up. We fail to see how evidence of Nelson’s
other suits qualifies as impeachment. Nothing in his direct
testimony could be contradicted by evidence that he had
filed other suits against the City. The judge apparently
thought that Nelson’s testimony about his public-service
experience left a general impression that he had a “cordial
relationship” with local police. But Nelson never claimed to
have wholly placid relations with the Chicago Police De-
partment. Rather, he testified: “I complain when I see some-
No. 12-3401 19
thing wrong, I fully do. … If I see the officer doing wrong, I
complain about it. If they[’re] doing right, I praise them for
doing the[ir] jobs.”
The damages rationale fares no better. Without knowing
more about the facts underlying the prior suits, there’s no
way for the jury to meaningfully evaluate this evidence vis-
à-vis Nelson’s claimed damages in this case. The City had no
interest in putting the facts of the prior lawsuits before the
jury, so it’s not surprising that it did not do so. As such, the
only possible purpose for admitting this evidence was to
brand Nelson as a litigious person who (at best) had thin
skin or (at worst) had a vendetta against the Chicago Police
Department and was gaming the system to make an easy
buck. Those inferences are especially prejudicial in a false-
arrest suit with no third-party witnesses because the plaintiff
is always vulnerable to the accusation that he made every-
thing up. The gratuitous question about Nelson’s lawyer—
apparently meant to suggest the attorney and her client were
in cahoots in a scheme to defraud the City—compounded
the prejudice.
The defendants insist that Nelson’s testimony about his
favorable settlements with the City would lead the jury to
conclude that his earlier claims were meritorious. Maybe so;
but we think there’s a significant chance that the jury also
concluded that the City had paid Nelson enough already.
That was certainly the thrust of the defense attorney’s clos-
ing argument. The evidence of his prior lawsuits should not
have been admitted.
Though wrongly admitted, this evidence was accompa-
nied by a limiting instruction, and that has a bearing on the
harmless-error inquiry; we presume that “juries follow their
20 No. 12-3401
instructions.” Barber, 725 F.3d at 717. But “[a]t some point
judicial presumptions must give way to common sense, and
the formulaic recitation of a pro forma limiting instruction
may not suffice to cure an error.” Id. Here, the prejudice
engendered by the erroneous admission of the evidence of
other lawsuits was significant enough that the presumption
must give way. The defense attorney’s questions on this
subject were multiple and inflammatory. The repeated
references to Nelson’s other lawsuits during closing argu-
ment were clearly intended to undermine Nelson’s credibil-
ity and stir juror bias against him as a chronic litigant.
Indeed, the evidence of Nelson’s other lawsuits went to the
heart of the defense theory of the case: that Nelson had
fabricated his story and was using it to “con” the jury into
giving him money. The error was not harmless.
C. Officer Novotny’s Testimony
During Nelson’s case-in-chief, Officer Novotny testified,
consistent with his judicial admission, that he had no recol-
lection of the traffic stop. On cross-examination, however,
his attorney asked him to “tell the ladies and gentlemen of
the jury some of the circumstances by which you pull a
handgun on an individual in a traffic stop.” Nelson objected,
but the judge allowed Novotny to answer, though she gave
the jury the following admonition: “Ladies and gentlemen,
the testimony you are about to hear is general background
information, it’ll be very brief, and it’s not intended to
suggest that any of these circumstances existed on the
evening in question. This witness has no recollection.”
The testimony was not brief. Officer Novotny began by
telling the jury that if “I felt for any reason that my safety
was in jeopardy or my partner[’s] safety was in jeopardy, by
No. 12-3401 21
all means, I would have my handgun out of the holster and
at least in a ‘ready’ position.” His attorney then asked him to
explain the circumstances in which he might have good
reason to point his gun at someone during a traffic stop. He
answered,
[I]f we ran the license plate and there was a
LEADS message that contained the message
that said “armed and dangerous,” “known to
fight with police,” “known to try to disarm the
police.” These are all common messages that
they attach to the LEADS message when you
run a license plate.
If for some reason the driver or the occupant
was making [furtive] movements in the vehi-
cle, meaning reaching under the seat, ignoring
verbal direction, it would put us officers on
high alert. We would definitely feel our safety
was in jeopardy at that point. You know, it’s a --
to obtain a weapon? You know, we don’t know
on the traffic stop.
That’s not all. The defense attorney asked Officer No-
votny to identify circumstances that might give an officer
cause to search a stopped vehicle. He replied that if “our
safety was in jeopardy”—say, for example, if the occupants
made “[furtive] movements[,] … we could ask the occupants
to exit the vehicle and do a plain-view search of the vehicle
for weapons.” He went on to explain why Nelson’s descrip-
tion of the search was not believable:
It would be such a disregard for safety if four
officers -- if the only officers on the scene, I’m
assuming, turn their backs on a subject who
22 No. 12-3401
was in cuffs for a reason that there was a risk
already and for four people to ignore him and
search a car, not to mention the fact that it
wouldn’t take four officers to search one vehi-
cle. We would never practice anything like
that.
Finally, Officer Novotny was asked to identify circum-
stances that might justify handcuffing the driver or a pas-
senger during a traffic stop. He testified that “[i]f at that time
they’re not listening to verbal direction by keeping their
hands where you know where they’re at so they … wouldn’t
retrieve a weapon and then try to harm you or your part-
ner.”
In her posttrial ruling, the judge explained that this
“background” testimony from Officer Novotny was admis-
sible because it was “phrased in a clearly hypothetical
fashion” and the risk of prejudice was low. She also observed
that because the defendants “have no recollection of the
incident in question, there is very little evidence they can
offer beyond illustrating how Plaintiff’s account of the
incident departs from official procedure.”
Nelson argues that admitting this testimony was reversi-
ble error, and again we largely agree. We note for starters
that evidence of a person’s “habit” is admissible to prove
that he acted in accordance with the habit on a specific
occasion, FED. R. EVID. 406, but neither the defendants nor
the district court relied on this rule as a basis to pursue this
line of questioning. That’s understandable. “[B]efore a court
may admit evidence of habit, the offering party must estab-
lish the degree of specificity and frequency of uniform
response that ensures more than a mere ‘tendency’ to act in a
No. 12-3401 23
given manner, but rather, conduct that is ‘semi-automatic’ in
nature.” Simplex, Inc. v. Diversified Energy Sys., Inc., 847 F.2d
1290, 1293 (7th Cir. 1988); see also Thompson v. Boggs, 33 F.3d
847, 854 (7th Cir. 1994) (noting the Federal Rules of Evidence
Advisory Committee’s position that habit “describes one’s
regular response to a repeated specific situation”). The
defense never made this showing, and it’s hard to see how
Rule 406 can be applied in this particular context. A police
officer’s decision to draw his gun, use handcuffs, or search a
car during a traffic stop can hardly be characterized as
“habitual” or “semi-automatic.” Indeed, the judge’s instruc-
tion to the jury—that Officer Novotny’s testimony was “not
intended to convey what actually happened”—is incon-
sistent with the proper use of habit testimony, which is
intended to show that the person acted in accordance with
his habit on a particular occasion.
Nelson argues that Officer Novotny’s “background” tes-
timony was speculative and contradicted the defendants’
judicial admissions that they had no recollection of stopping
Nelson. 6 To evaluate this argument, it’s helpful to divide
Officer Novotny’s testimony into three categories. The first is
testimony that was flatly incompatible with the agreed facts
6 “Judicial admissions are formal concessions in the pleadings, or
stipulations by a party or its counsel, that are binding upon the party
making them. … Indeed, they are ‘not evidence at all but rather have the
effect of withdrawing a fact from contention.’” Keller v. United States,
58 F.3d 1194, 1198 n.8 (7th Cir. 1995) (quoting [30B] MICHAEL H. GRAHAM,
FEDERAL PRACTICE AND PROCEDURE: EVIDENCE § 6726 (Interim Ed.)
(currently found at § 7026)).
24 No. 12-3401
of the case. This includes Officer Novotny’s testimony that
an officer would have his gun in the “ready” position if a
LEADS warning indicated that a driver was “armed and
dangerous,” “known to fight with police,” or “known to try
to disarm police.” As we’ve explained, the defendants
entered formal judicial admissions that the LEADS database
said nothing of the sort about Nelson, and the computer logs
confirmed it. As a result, the “hypothetical” LEADS warn-
ings Officer Novotny described could not possibly have
made Nelson’s account of the stop any more or less probable.
This testimony should not have been permitted.
The second category is the testimony that directly con-
tradicted specific parts of Nelson’s account of the stop. This
includes Officer Novotny’s assertions that “it wouldn’t take
four officers to search one vehicle” and “[i]t would be such a
disregard for safety if four officers [would] … turn their
backs on a subject who was in cuffs.” This testimony was
relevant because it provided specific reasons, grounded in
the officer’s training and experience, to doubt some of the
particulars of Nelson’s account of the stop as he recounted it
on the witness stand. Indeed, Nelson doesn’t challenge the
admission of these specific statements.
The third category includes testimony that was not con-
clusively refuted by judicial admission or undisputed evi-
dence but also was not clearly related to the circumstances of
Nelson’s stop. For example, Officer Novotny testified that
officers would put their guns in the ready position during a
traffic stop if someone in the stopped car made furtive
movements. He also testified that the driver of a stopped car
might be handcuffed if he did not obey an officer’s orders. In
the context of this case, this testimony was entirely specula-
No. 12-3401 25
tive: It posits that if the events Nelson described actually
happened—if guns were drawn, if he was handcuffed, if his
car was searched, etc.—here are some possible factual cir-
cumstances that would provide justification. But of course
Officer Novotny doesn’t know if any of these things actually
happened; none of the officers do. The only possible purpose
and effect of this testimony was to invite the jury to specu-
late that Nelson acted in the ways Officer Novotny de-
scribed.
And this speculative testimony was heavily prejudicial.
Officer Novotny presented a worst-case scenario involving
furtive movements, hidden weapons, and disobeyed orders,
but without any reason to believe that Nelson engaged in
this behavior, was otherwise dangerous, or that the officers’
safety was threatened during this stop. Associating Nelson
with this kind of suspicious behavior—without any factual
basis whatsoever—was plainly prejudicial to him and likely
stimulated sympathy for the officers. This testimony bore
only a speculative link to Nelson’s stop and should not have
been permitted.
Was this testimony harmless? On one hand, the testimo-
ny was specifically framed as hypothetical, and the judge
gave two limiting instructions to that effect. With respect to
the LEADS testimony in particular, the jury had the defend-
ants’ judicial admissions as well as testimony from all four
officers that the LEADS system did not in fact provide any
reason to stop Nelson or to suppose that he might be armed
and dangerous. On the other hand, as we’ve just explained,
it was highly prejudicial to associate Nelson with the most
dangerous class of suspects officers might encounter in a
traffic stop.
26 No. 12-3401
If Officer Novotny’s “background” testimony were the
only evidentiary error at this trial, the harmlessness question
might be closer. But harmlessness is evaluated “in light of
the entire record,” and “[w]here there are several errors,
each of which is harmless in its own right, a new trial may
still be granted if the cumulative effect of those otherwise
harmless errors deprives a litigant of a fair trial.” Barber,
725 F.3d at 715 (quotation marks omitted). We’ve already
concluded that a new trial is warranted because other evi-
dence was erroneously admitted. The error in admitting
Officer Novotny’s speculative testimony only bolsters that
conclusion.
Accordingly, for all the foregoing reasons, the judgment
is REVERSED, and the case is REMANDED for further proceed-
ings consistent with this opinion.