Cefalu, William v. Village Elk Grove

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 98-2708, 98-3053
WILLIAM CEFALU and TYRONE CEFALU,
Plaintiffs-Appellants/Cross-Appellees,
v.
VILLAGE OF ELK GROVE, et al.,
Defendants-Appellees/Cross-Appellants.
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 94 C 1990--Rebecca R. Pallmeyer, Magistrate Judge./*
Argued February 23, 1999--Decided April 13, 2000
Before COFFEY, RIPPLE, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Cooler heads regrettably
did not prevail on the afternoon that Tyrone
Cefalu arrived at his parents’ printing business
and found Elk Grove Village police officer Eric
Perkins parked in the drive, filling out reports
and monitoring traffic on the adjoining roadway.
Cefalu in rather harsh terms told Perkins to
leave, Perkins balked, and within moments six
police officers were on the scene attempting to
restore order to the chaos that had erupted.
Perkins left the premises with a lacerated hand,
having had the front door to the Cefalus’
business slammed shut on it. Tyrone and his
father William left with their own hands in
cuffs, accused of battery and resisting arrest.
After the Cefalus were acquitted on those
charges, they filed suit against Elk Grove
Village, Perkins, and several other police
officers pursuant to 42 U.S.C. sec. 1983, and the
case proceeded to trial. Judge Pallmeyer entered
judgment as a matter of law in favor of the
defendants on the charge that they conspired to
cover up evidence of violating the Cefalus’ civil
rights, and a jury absolved the defendants of
false arrest, excessive force, battery, and
malicious prosecution. The Cefalus appeal from
both the entry of judgment as a matter of law and
the adverse verdict on the false arrest charge,
and they also challenge certain rulings that the
district court made over the course of the trial.
The defendants cross-appeal from the denial of
costs for the preparation of various computer
displays. We affirm the judgment in favor of the
defendants and remand the matter of costs for
further consideration.
I.
Because the jury found in favor of the
defendants, our summary of the facts reflects a
view of the evidence that is favorable to them.
See, e.g., Haschmann v. Time Warner Entertainment
Co., 151 F.3d 591, 599 (7th Cir. 1998).
Early in the afternoon of February 19, 1993,
after picking up some take-out for lunch, Tyrone
Cefalu ("Tyrone") returned to work at his
family’s Elk Grove Village business, Logan
Printing ("Logan"). As he drove up to the
property, Tyrone saw a village police cruiser
parked in the driveway. Officer Eric Perkins,
employed with the village for sixteen months, was
seated behind the wheel. Perkins had just
finished responding to an armed robbery call and
had backed his cruiser into the driveway in order
to complete some paperwork and monitor traffic on
the adjacent street as he neared the end of his
shift. According to the village, its police
officers commonly did this in the industrial park
where Logan Printing was located, and it had
never before heard a complaint. Business owners,
in fact, appreciated the visible police presence
on their properties.
Tyrone did not welcome Perkins’ presence,
however. A short retaining wall divided Logan’s
driveway. One half of the driveway, leading to
the loading dock, descended several feet below
grade level. The other half of the drive led to
parking in the rear of the building; and the
presence of Perkins’ cruiser on that side of the
drive blocked access to the parking lot. Tyrone
drove his vehicle onto the loading-dock half of
the drive and pulled up along side of Perkins’
car. "What are you doing here?" Tyrone asked
Perkins--in what Perkins described as an
insulting and combative tone. When Perkins
answered that he was, among other things,
watching traffic, Tyrone remarked that he did not
want Perkins to "run radar" while on the
premises. Perkins indicated that he was not using
radar but that in any event he was entitled to
employ it so long as there was traffic on the
public road. Nonplused, Tyrone told Perkins to
"get off"of his property. Perkins declined.
Tyrone stepped out of his vehicle, his lunch
and drink in hand, and slammed the car door shut.
For a few moments, he stood next to Perkins’ car,
shouting obscenities. He demanded that Perkins
"get the f*** off [his] property" and, pointing
his finger at the police officer, called him a
"f***ing punk." In the face of Tyrone’s outrage,
Perkins was now concerned about the prospect of
interrogation, and possibly discipline, from his
superiors. He radioed his supervisor, Sergeant
Dion Zinnel, that he was dealing with "an irate
business owner." Other officers who heard the
radio call could discern someone shouting in the
background. Zinnel said he would join Perkins at
the scene. Perkins exited the cruiser and joined
Tyrone on the front sidewalk, hoping to calm him
down.
Tyrone began to move away from the squad car.
Perkins told him to come back, but Tyrone kept
walking. After returning to the car for a moment
to respond to a follow-up call from Zinnel,
Perkins caught up with Tyrone in front of the
business. Tyrone continued to yell at Perkins,
threatening to call the village manager.
At Logan’s front door, something of a tug-of-
war ensued. After Tyrone opened the door with a
key, he repeated his demand that Perkins get off
the property, stepped inside, and let the door
(which had an automatic closing mechanism) begin
to shut behind him. Perkins planted his right
heel and side in the doorway, keeping the door
open. He urged Tyrone to calm down. "We don’t
need this," Perkins told him. Unmoved, Tyrone
tried to pull the door closed. Perkins stopped
the door with his hand. As Perkins told the
story, Tyrone glanced at Perkins’ hand and then
yanked the door shut on it, lacerating Perkins’
finger and thumb.
Thoughts of calming Tyrone down evaporated;
Perkins now resolved to arrest him for battery.
Having grabbed the door before it locked shut,
Perkins now took a step inside the building,
grasped Tyrone’s arm, and announced that he was
under arrest for disorderly conduct/1 as well as
battery. Tyrone tried to shake his arm free of
Perkins’ grip. At this point, William Cefalu
entered the fray, rising from behind a counter
and shouting at Perkins to let Tyrone go and get
off the property. Finding himself outnumbered,
Perkins retreated from the building and called
for backup.
When reinforcements arrived, Perkins knocked at
the front door with a colleague, Officer Edwin
Medina. William cracked open the front door and
told them to depart, but the officers seized the
opportunity to reenter the building, informing
William that they were there to arrest Tyrone.
William attempted to block Medina’s path,
prompting Perkins to declare that William would
be arrested as well. When William refused to
place his hands behind his back per Perkins’
order, the two officers pushed William onto a
bench and struggled to handcuff him. Hearing the
commotion, Tyrone emerged from a back office and
shouted at the officers, "Let go of him!"
Tensions were so high at this point that Medina
drew his gun and ordered Tyrone to "Freeze!"
Tyrone instead picked up a telephone and
attempted to call the village manager. Perkins
tried--unsuccessfully--to take the telephone away
and cuff him. By now, Zinnel and another officer
had arrived on the scene, and they helped to
subdue and handcuff Tyrone.
Perkins left the premises in the company of
paramedics so that his hand could be attended to,
while the Cefalus were taken to the Elk Grove
police station for processing. William himself
was treated by paramedics for a cut on his hand,
and was later taken to the hospital with elevated
blood pressure. By the plaintiffs’ account,
William had turned quite red during the scuffle
at Logan Printing, and whereas the defendants
acknowledge that his blood pressure was
determined to be "slightly" elevated, the
plaintiffs insist that it shot off the charts,
leaving him with permanent damage to his heart
muscle.
Following this incident, the village received
complaints from both Tyrone and his wife, and the
village board of trustees, recognizing the
possibility that litigation might be in the
offing, ordered an investigation. The village
attorney spoke with the chief and deputy chief of
police about the matter, and he obtained a copy
of the police report for the board’s review.
Further investigation was suspended while the
criminal case against the Cefalus was pending;
and the board was kept apprised of the status of
the criminal case. Ultimately, the village
attorney made no effort to look into the incident
independently; he simply relied on the police
chief and deputy chief for their second-hand
accounts of what occurred. Nor did he take any
notes, prepare a written report, or create any
other form of written documentation of the
results of his inquiry.
Several days after the Cefalus were arrested,
Sergeant Zinnel and Lieutenant Steven
Ingebrigtsen (watch commander at the time Perkins
arrested the Cefalus) met with Perkins to review
the incident. The senior officers agreed that
Perkins could have handled his initial encounter
with Tyrone better than he had and they so
admonished Perkins. "[W]e all said he could have
put the car in drive and drove away,"
Ingebrigtsen testified. Ingebrigtsen considered
this mild oral reprimand to be all the discipline
that was necessary. In his view, Perkins had not
violated any departmental policy; he was simply
an inexperienced officer who exercised poor
judgment. Ingebrigtsen did not investigate the
incident beyond speaking with Zinnel and Perkins.
"I was satisfied with the information they
supplied me," he testified. "I didn’t need more."
Like the village attorney, Ingebrigtsen made no
written report summarizing his inquiry. In fact,
it appears that none of the various personnel
within the village bureaucracy who looked into
this matter created any notes, memoranda, or
correspondence reflecting what they found.
Meanwhile, William and Tyrone Cefalu were
exonerated on the charges that they had committed
battery and resisted arrest. At the conclusion of
the State’s case, Cook County Circuit Court Judge
Brendan McCooey dismissed the charges. The judge
noted that even if Perkins, in the first
instance, had a legitimate reason to follow
Tyrone up the front walk and to enter the Logan
building, by the time Cefalu had stepped inside
the front door and attempted to close it, Perkins
had been told several times that he was not
welcome on the premises. Perkins had no warrant
that would justify his entry without the owner’s
consent, and no exigent circumstances supported
a warrantless intrusion. Within that context, he
found the evidence insufficient to show that
either the senior or junior Cefalu had the intent
to commit a battery on the police officers or to
resist arrest. "The State failed to prove its
case beyond a reasonable doubt, even set forth a
prima facie case, in my opinion."
The Cefalus later filed this action against Elk
Grove Village, Perkins, and six other police
officers. Pursuant to section 1983, they asserted
claims of excessive force, false arrest,
malicious prosecution, and conspiracy. A direct
claim against the village was made pursuant to
Monell v. Department of Social Servs. of City of
New York, 436 U.S. 658, 691, 98 S. Ct. 2018, 2036
(1978). The complaint also included pendant state
claims of battery, unlawful detention, malicious
prosecution, conspiracy, wilful and wanton
misconduct, excessive force, and false arrest. R.
65. Judge Holderman granted summary judgment in
favor of the village on the Monell claim and
dismissed one of the individual defendants from
the case. Cefalu v. Village of Elk Grove, No. 94
C 1990, 1996 WL 392158 (N.D. Ill. July 11). He
concluded that disputes of material fact required
a trial on the other claims as to which the
defendants sought summary judgment, however. With
respect to the section 1983 conspiracy claim,
Judge Holderman wrote:
[T]here is sufficient circumstantial evidence
from which a jury may reasonably infer that
defendants conspired to violate plaintiffs’
constitutional rights. There is evidence that
defendants met and discussed the circumstances of
the February 19, 1993 incident after the alleged
constitutional violations occurred. The acts that
defendants allegedly undertook in furtherance of
this alleged conspiracy include the allegedly
false charges brought against plaintiffs,
defendants’ failure to investigate the complaints
made by plaintiffs, and defendants Perkins’ and
Medina’s testimony at the criminal trial in
support of the allegedly false charges.
Id., at *6 (footnote omitted). The case proceeded
to trial on the federal claims for false arrest
(Tyrone), malicious prosecution (Tyrone),
excessive force, and conspiracy, and the state
claims for false arrest (Tyrone), battery, and
malicious prosecution. At the conclusion of the
plaintiffs’ case-in-chief, Judge Pallmeyer
entered judgment as a matter of law in favor of
the defendants on the claim that they had
conspired to violate the plaintiffs’ civil
rights. R. 294-2 at 24; see Fed. R. Civ. P.
50(a)(1). The remainder of the case was submitted
to the jury, which found in favor of the
defendants on all counts. R. 237, 238. The
Cefalus subsequently filed a motion for a new
trial pursuant to Federal Rule of Civil Procedure 59(a),
which Judge Pallmeyer denied in a written
opinion. Cefalu v. Village of Elk Grove, No. 94
C 1990, 1998 WL 325191 (N.D. Ill. June 9).
II.
A.
The Cefalus contend that Judge Pallmeyer erred
when she entered judgment as a matter of law in
favor of the defendants on the section 1983
conspiracy claim. Judgment as a matter of law is
appropriate when "a party has been fully heard on
an issue and there is no legally sufficient
evidentiary basis for a reasonable jury to find
for that party on that issue." Fed. R. Civ. P.
50(a)(1). Our review of such a judgment is de
novo. E.g., Lane v. Hardee’s Food Sys., Inc., 184
F.3d 705, 707 (7th Cir. 1999). In the course of
this review, we must interpret the facts in the
light most favorable to plaintiffs, against whom
judgment as a matter of law was entered. Id.As it was articulated at trial, the Cefalus’
conspiracy claim posited that the defendants had
conspired to cover up their own wrongdoing vis a
vis the Cefalus’ arrest. The First and Fourteenth
Amendments to the U.S. Constitution guarantee the
right to seek legal relief for asserted injuries
that have a reasonable basis in fact and in law.
See Bill Johnson’s Restaurants, Inc. v. NLRB, 461
U.S. 731, 741, 103 S. Ct. 2161, 2169 (1983);
Vasquez v. Hernandez, 60 F.3d 325, 328 (7th Cir.
1995), cert. denied, 517 U.S. 1156, 116 S. Ct.
1545 (1996).
A corollary of this right is that efforts by
state actors to impede an individual’s access to
courts or administrative agencies may provide the
basis for a constitutional claim under 42 U.S.C.
sec. 1983. Judicial access must be "adequate,
effective, and meaningful," Bounds v. Smith, 430
U.S. 817, 822, 97 S. Ct. 1491, 1495, 52 L.Ed.2d
72 (1977), and therefore, when police officers
conceal or obscure important facts about a crime
from its victims rendering hollow the right to
seek redress, constitutional rights are
undoubtedly abridged. Bell [v. City of
Milwaukee], 746 F.2d [1205] at 1261 [(7th Cir.
1984)]; see also Stone v. City of Chicago, 738
F.2d 896 (7th Cir. 1984); Ryland v. Shapiro, 708
F.2d 967 (5th Cir. 1983).
Vasquez, 60 F.3d at 328; see also Thompson v.
Boggs, 33 F.3d 847, 852-53 (7th Cir. 1994), cert.
denied, 514 U.S. 1063, 115 S. Ct. 1692 (1995).
Judge Pallmeyer entered the directed finding on
this claim primarily on the strength of Vasquez.
There we concluded (over a dissent) that an
attempt to cover up police wrongdoing which
succeeded only briefly in hiding the facts from
the plaintiffs, and which ultimately neither
prevented the plaintiffs from pursuing relief nor
reduced the value of their claim, was not
actionable under section 1983. 60 F.3d at 329;
see also Gibson v. City of Chicago, 910 F.2d
1510, 1523-24 (7th Cir. 1990).
At the outset, the Cefalus suggest that the law
of the case doctrine/2 obligated Judge Pallmeyer
to submit their conspiracy claim to the jury, but
that argument is wholly without merit. The
premise for the argument is the court’s previous
summary judgment ruling: Judge Holderman
concluded that there were disputed issues of
material fact with respect to the conspiracy
claim, the reasoning goes, and so Judge Pallmeyer
was bound to submit the claim to the jury. Yet,
as the defendants point out, what Judge Holderman
determined at the summary judgment stage was that
the evidence sufficed to establish the general
elements of conspiracy--a meeting of the minds,
overt actions taken in furtherance of the
agreement, and so on. He did not address--because
it was not raised--the particular theory
underlying the cover-up claim, and whether it was
viable under the controlling case law.
Consequently, there was no law of the case on
this aspect of the conspiracy claim.
For two reasons, we believe that Judge
Pallmeyer was correct to enter a judgment as a
matter of law in favor of the defendants on this
claim. First, because the jury exonerated the
defendants of any substantive constitutional
violation, the conspiracy claim necessarily
falters under this circuit’s precedents. Second,
the cover-up efforts that the Cefalus describe
could not, given the facts of the case, have kept
the Cefalus from seeking legal redress.
In exonerating the defendants of the false
arrest and malicious prosecution charges, the
jury concluded that the defendants did not
violate the Cefalus’ constitutional rights. We
have said that "there is no constitutional
violation in conspiring to cover-up an action
which does not itself violate the Constitution."
Hill v. Shobe, 93 F.3d 418, 422 (7th Cir. 1996).
The jury’s conclusion that the Cefalus suffered
no constitutional injury thus forecloses relief
on the conspiracy claim. Id.; Goldschmidt v.
Patchett, 686 F.2d 582, 585 (7th Cir. 1982); see
also Andree v. Ashland County, 818 F.2d 1306,
1311-12 (7th Cir. 1987); Reichenberger v.
Pritchard, 660 F.2d 280, 285 (7th Cir. 1981).
Moreover, this was not a case in which the
plaintiffs lacked the knowledge of the facts
necessary to seek redress for their asserted
injuries. The key circumstances underlying their
claims for wrongful arrest and malicious
prosecution were those surrounding their arrests.
Those circumstances have from the start been
known to the Cefalus, as they were face-to-face
participants with the police in the entire chain
of events that culminated in their arrest. Cf.
Vasquez, 60 F.3d 325 (plaintiff injured by stray
bullet of unknown origin that penetrated the
walls of her home); Bell, 746 F.2d 1205(plaintiff’s son shot and killed by police
officer in absence of witnesses other than
officer and his partner, both of whom falsely
claimed that victim had wielded a knife and
declared himself to be a hold-up man). Therefore,
even to the extent the evidence suggests that the
defendants resolved not to conduct a meaningful
investigation, for fear it would hurt them later
when the Cefalus filed suit, a jury could not
find for the plaintiffs on the cover-up claim
because the facts that they needed to recover for
their asserted injuries have always been known to
them. See Thompson, 33 F.3d at 852-53; see also
Swekel v. City of River Rouge, 119 F.3d 1259,
1263-64 (6th Cir. 1997), cert. denied, 522 U.S.
1047, 118 S. Ct. 690 (1998); Foster v. City of
Lake Jackson, 28 F.3d 425, 429-30 (5th Cir.
1994).
For this same reason, we find no merit to the
Cefalus’ follow-up contention that Judge
Pallmeyer unduly restricted their attempts to
flesh out the village’s efforts to evade
liability. The judge sustained defense objections
to a variety of questions intended to show that
the village treated Perkins with extraordinary
lenity; that it explored the possibility of
dropping the charges against William in exchange
for Tyrone’s agreement to plead guilty; that it
had a practice of not dropping charges once an
arrest had been effectuated; that the village, in
effect, turned a blind eye to the merits of the
charges against the Cefalus; and that village
officials were keenly aware at all times that a
conviction of one or both Cefalus would insulate
them from liability. We may assume that further
inquiry along these lines might have shown that
the village was more concerned about damage
control than it was about justice. Yet, even with
the benefit of discovery, the plaintiffs can
identify no information that the defendants
suppressed or withheld, or any action that they
took, that hampered the Cefalus from resorting to
court to vindicate their constitutional rights.
It is that type of evidence which their cover-up
claim called for, and absent a showing that their
questions would have elicited evidence that was
relevant in this regard, the judge acted
appropriately in terminating inquiry.
B.
The jury found in favor of Perkins on the claim
that he falsely arrested Tyrone, but the Cefalus
believe that the verdict cannot be reconciled
with the evidence and that the judge should
therefore have granted their motion for a new
trial. See Fed. R. Civ. P. 59. Only when a verdict
is contrary to the manifest weight of the
evidence should a motion for a new trial
challenging the jury’s assessment of the facts
carry the day. E.g., Riemer v. Illinois Dep’t of
Transp., 148 F.3d 800, 806 (7th Cir. 1998);
Robinson v. Burlington N. R. Co., 131 F.3d 648,
656 (7th Cir. 1997). Moreover, "[t]he district
court, having seen the presentation of the
evidence and observed the course of the trial, is
in a unique position to rule on a new trial
motion." Valbert v. Pass, 866 F.2d 237, 239 (7th
Cir. 1989). Our own review of the lower court’s
assessment is therefore "narrowly circumscribed."
Id., quoting Durant v. Surety Homes Corp., 582
F.2d 1081, 1088 (7th Cir. 1978). Only if the
district judge has abused her discretion will we
disturb her decision to deny a new trial. E.g.,
Lowe v. Consolidated Freightways of Delaware,
Inc., 177 F.3d 640, 641 (7th Cir. 1999), cert.
denied, 120 S. Ct. 818 (2000); Riemer, 148 F.3d
at 806. "As long as there is a reasonable basis
in the record to support it, we will not overturn
a jury’s verdict." Robinson, 131 F.3d at 656.
The plaintiffs’ attack on the verdict focuses
upon the issue of trespass. Illinois law provides
that one who intrudes upon another’s property
after receiving notice from an "owner or
occupant" that he is forbidden to enter (or
required to depart) is guilty of a misdemeanor.
720 ILCS 5/21-3(a); e.g., People v. Kraft, 660
N.E.2d 114, 117 (Ill. App. 1995). Illinois law
further provides that "[a] person is justified in
the use of force against another when and to the
extent that he reasonably believes that such
conduct is necessary to prevent or terminate such
other’s trespass . . . ." 720 ILCS 5/7-3. In the
Cefalus’ view, Perkins was a trespasser. The
officer had no authority or permission to be on
their property; and by the time the contretemps
at the doorway commenced, Tyrone had in fact
demanded repeatedly that he leave. Perkins
claimed not to be sure whether Tyrone had the
legal authority to eject him. Yet, he conceded
that once he saw the junior Cefalu open the front
door to the building with his key (and with his
lunch in hand), it was clear that Tyrone at the
very least had a right to be on the premises, if
not as an owner (as Tyrone claimed to be), then
as an employee. Plaintiff’s Ex. 3 at 56-57. At
that point, the plaintiffs argue, Perkins was
obliged to leave, and Tyrone, in turn had a right
to use force to evict him. Perkins therefore
lacked the requisite probable cause to arrest
Tyrone--i.e., an objectively reasonable belief
that Tyrone had committed a crime when he shut
the door on Perkins’ hand. See generally, e.g.,
Kelley v. Myler, 149 F.3d 641, 646 (7th Cir.
1998).
We agree with Judge Pallmeyer, however, that
the jury could reasonably have viewed the
situation differently. Assuming that Perkins
indeed did commit trespass, the Illinois statute
permitted Tyrone to use force only "to the extent
that he reasonably believe[d]" such force was
necessary to terminate the trespass. 720 ILCS
5/7-3 (emphasis ours). The jury, examining the
facts that confronted Perkins through the eyes of
a reasonable police officer, might have
determined that it was unreasonable for Tyrone to
think it necessary to slam a door shut on
Perkins’ hand. All Perkins was doing at that
point was attempting to keep the door open so
that he could continue his efforts to talk Tyrone
into a calmer state. If, as the Cefalus argue and
we have assumed, Perkins was committing criminal
trespass, then he of course had no business
remaining on the property at all in the face of
Tyrone’s demands that he leave. But Perkins posed
no threat to Tyrone, and beyond holding the door
open so that he could speak with Tyrone, Perkins
evidenced no plans to intrude farther into the
building. Under the circumstances, however
annoying Perkins’ continued presence may have
been to Tyrone, the jury might well have thought
that a reasonable police officer could deem it
beyond the pale for Tyrone to close the door on
his hand without at least warning him first. See
People v. Hicks, 676 N.E.2d 725, 729 (Ill. App.
1997), rev’d on other grounds, 693 N.E.2d 373(Ill. 1998); People v. Epps, 453 N.E.2d 816, 818-
19 (Ill. App. 1983); People v. Vaughn, 451 N.E.2d
898, 902 (Ill. App. 1983). The unreasonable use
of force would in turn have supplied a reasonable
officer with a basis to arrest Tyrone for
battery, which in Illinois occurs when a person
"intentionally or knowingly without legal
justification" causes bodily harm to another or
touches him in an "insulting or provoking"
manner. 720 ILCS 5/12-3(a); see also 720 ILCS
5/12-4(b)(6) (aggravated battery occurs when one
commits battery on a person he knows to be a
peace officer, while the officer is engaged in
execution of his official duties)./3
C.
The Illinois criminal trespass statute indicates
that it is an "owner or occupant" of the property
who is authorized to order an unwelcome visitor
to depart. See 720 ILCS 5/21-3(a). As we have
noted, Perkins testified that he was unsure
whether Tyrone was, in fact, an "owner" or
"occupant" who could rightfully order him to
leave, and the reasonableness of his doubt was a
hotly contested issue at trial. On that issue,
the jury was instructed that it could consider
"whether it was reasonable for Officer Perkins to
believe that the phrase ’owner or occupant,’ as
used in the statute, was limited to legal owners,
tenants or lessees of real property." R. 236,
Instruction No. 37. The Cefalus contend that it
was clear error for the court to give this
instruction, because it invited the jury to focus
on Perkins’ understanding of the statute rather
than the facts that were known to him, the latter
being key to the probable cause analysis. See
Richardson v. Bonds, 860 F.2d 1427, 1430-31 (7th
Cir. 1988) ("While an arresting officer’s
subjective knowledge of facts sufficient to
constitute probable cause is central to
evaluation of the propriety of an arrest, we do
not believe that the officer’s view of the legal
basis for the arrest is important.") (emphasis in
original); see also, e.g., Calusinski v. Kruger,
24 F.3d 931, 935 (7th Cir. 1994); Biddle v.
Martin, 992 F.2d 673, 676 (7th Cir. 1993).
The Cefalus consented to this instruction below,
however, and in so doing waived review of its
propriety. Federal Rule of Civil Procedure 51 provides
that "[n]o party may assign as error the giving
or the failure to give an instruction unless that
party objects thereto before the jury retires to
consider its verdict, stating distinctly the
matter objected to and the grounds of the
objection." At the instruction conference, the
Cefalus’ counsel expressly agreed that the
reasonableness of Perkins’ belief as to whether
Tyrone would qualify as an "owner or occupant"
was, "[a]t a minimum," a jury question. R. 294-2
at 223. Counsel also gave his consent to the form
of the instruction that the court proposed. R.
294-2 at 255-56. Under these circumstances,
appellate review is foreclosed to the Cefalus.
See O.K. Sand & Gravel, Inc. v. Martin Marietta
Techs., Inc., 36 F.3d 565, 568 (7th Cir. 1994);
see also United States v. Griffin, 84 F.3d 912,
924 (7th Cir.) (applying identical terms of Fed.
R. Crim. P. 30), cert. denied, 519 U.S. 999, 117 S.
Ct. 495 (1996), and cert. denied, 519 U.S. 1020,
117 S. Ct. 536 (1996)./4
D.
Finally, the Cefalus argue briefly that the
district court erroneously precluded them from
placing the text of the criminal trespass and
related statutes before the jury. Alerting the
jury to the content of those statutes was
necessary, they maintain, because throughout the
trial the defendants had improperly suggested
(principally through objections to the questions
plaintiffs’ counsel put to Perkins and other
witnesses) that a mere employee of the property
owner (like Tyrone) did not have the authority to
eject a trespasser. Confronting the witnesses
with the actual text of the statute was therefore
necessary, in their view, to counter the
misimpression. The district court, of course,
enjoys broad discretion on evidentiary matters,
and our review is commensurately deferential.
E.g., United States v. Van Dreel, 155 F.3d 902,
905 (7th Cir. 1998).
We discern no error on Judge Pallmeyer’s part,
however. Whether Tyrone qualified as an "owner or
occupant" was a question of law to be addressed
in the jury instructions. The Cefalus’ sole
objection to the adequacy of the jury
instructions was one that they waived, as we have
explained above. As an evidentiary matter, use of
the statutory text in questioning the witnesses
would only be relevant insofar as the text was
somehow vital to eliciting pertinent testimony.
However, the Cefalus make no argument that the
judge’s rulings in this respect somehow kept them
from introducing relevant evidence.
III.
After prevailing at trial, the defendants moved
to recover their costs pursuant to Federal Rule of
Civil Procedure 54(d). Among other expenses, they
sought reimbursement in excess of $27,000 for the
cost of a computerized, multi-media system they
employed to present their exhibits to the jury.
The plaintiffs used a similar methodology, and as
Judge Pallmeyer noted, the defendants had elected
to do the same in order "to keep the playing
field even." Cefalu v. Village of Elk Grove, No.
94 C 1990, 1998 WL 409690, at *11 (N.D. Ill. July
15). The defendants argued that the multi-media
system was compensable as a means of
"exemplification," see 28 U.S.C. sec. 1920(4),
but the judge rejected this rationale. "Costs for
exemplification are permitted only for expenses
associated with the physical preparation of
exhibits," she observed. 1998 WL 409690, at
*11./5 "[A]lthough the multi-media presentation
no doubt facilitated the presentation of various
exhibits to the jury, it played no role
whatsoever in the production of the exhibits used
at trial." Id. (emphasis in original).
In stating that "costs other than attorneys’
fees shall be allowed as of course to the
prevailing party unless the court otherwise
directs," Rule 54(d)(1) establishes a presumption
in favor of a cost award. To be compensable,
however, a particular expense must fall into one
of the categories of costs statutorily authorized
for reimbursement. Crawford Fitting Co. v. J.T.
Gibbons, Inc., 482 U.S. 437, 441-42, 107 S. Ct.
2494, 2497 (1987); Barber v. Ruth, 7 F.3d 636,
644 (7th Cir. 1993). Fees associated with
"exemplification" so qualify, sec. 1920(4),
although the statute does not define the term. In
the narrowest legal sense, "exemplification"
refers to "[a]n official transcript of a public
record, authenticated as a true copy for use as
evidence." Black’s Law Dictionary 593 (7th ed. 1999).
More commonly, it signifies the act of
illustration by example, Merriam-Webster’s Collegiate
Dictionary 406 (10th ed. 1993), a connotation broad
enough to include a wide variety of exhibits and
demonstrative aids. Our own cases embrace the
more expansive definition of "exemplification."
In EEOC v. Kenosha Unified School Dist. No. 1,
620 F.2d 1220, 1227 (7th Cir. 1980), we said that
the term "is ordinarily construed as permitting
an award of the reasonable expense of preparing
maps, charts, graphs, photographs, motion
pictures, photostats, and kindred materials . .
. ," quoting 6 Moore’s Federal Practice para. 54.77[6]
at 1739 (2d ed.). And more recently in Haroco,
Inc. v. American Nat’l Bank & Trust Co. of
Chicago, 38 F.3d 1429, 1441 (7th Cir. 1994), we
sustained an award of exemplification costs that
included, among other things, the expense of
graphics services employed in preparing exhibits
for a successful summary judgment motion. See
generally 10 Charles Alan Wright, et al., Federal
Practice and Procedure sec. 2677, at 453-58 (1998).
In this case, the judge drew a line between the
physical preparation of a trial exhibit, which
would be compensable as exemplification, and the
means chosen to present that exhibit to the jury,
which she believed would not be. We appreciate
the convenience of that line, and there is a
certain logic to it. Here, for example, the
multi-media services for which the defendants
seek compensation were auxiliary in the sense
that these services did not involve the creation
of diagrams, charts, or graphs, but merely the
packaging and display of pre-existing documents
and other exhibits. To that extent, the use of a
multi-media presentation may have less to do with
conveying information to judge and jury than it
does with an effort to wow them. No doubt the
statute does not obligate the losing party to pay
for the victor’s "glitz," as Judge Leinenweber
has observed. BASF Corp. v. Old World Trading
Co., No. 86 C 5602, 1992 WL 229473, at *3 (N.D.
Ill. Sept. 11).
But in view of the illustrative purpose of
exemplification, we are not convinced that the
line between producing an exhibit and presenting
that exhibit to the court is the most appropriate
one to draw. Enlarging a crucial document, for
example, may be the only practical means of
permitting a witness to point out the forensic
features of that document. Imagine, for example,
the jurors and the judge poring over individual,
unenlarged copies of the document with bifocals
and magnifying glasses as they try to keep pace
with an expert’s testimony identifying for them
the unique whorls of a fingerprint or swirls of
a signature. Yet, the enlargement is simply a
bigger version of evidence that already exists;
in effect, it serves only to present that
evidence in a more effective manner. In a like
vein, a witness may require the use of a
transparency so that she can explain or highlight
the pertinent aspects of a chart she has
prepared. That transparency would be worthless
without the overhead projector needed to display
it to the judge and jury; but the projector plays
no role in the production of the exhibit, it is
simply the means of presentation. Allowing fees
for the cost of preparing the transparency but
not for renting the projector would in this sense
be a highly formalistic distinction, as each is
key to the illustrative function of the exhibit.
So long as the means of presentation furthers
the illustrative purpose of an exhibit, we
believe it is potentially compensable as
exemplification. This approach allows appropriate
room for the more sophisticated types of multi-
media presentations made possible by
technological advances. Given the costs
associated with some of these presentations, this
is an area that Congress may wish to revisit and
supply further guidance. But we find no limits
inherent in the term "exemplification" that would
permit a court to award costs for the more
familiar means of illustration--models, charts,
graphs, and the like--but preclude it from
compensating a party for an animated
reconstruction of an accident, for example, or
other types of computer-based, multimedia
displays.
Of course, even when a particular item
qualifies as exemplification, a court must still
determine whether it was "necessarily obtained
for use in the case." sec. 1920(4). The district
judge is uniquely suited to make that assessment,
and we will not disturb her judgment in this
respect absent a clear abuse of discretion. See
Weeks v. Samsung Heavy Indus. Co., 126 F.3d 926,
945 (7th Cir. 1997); Illinois v. Sangamo Constr.
Co., 657 F.2d 855, 867 (7th Cir. 1981). Among the
factors that the judge might consider in
evaluating the necessity of a particular type of
exemplification is whether the nature and context
of the information being presented genuinely
called for the means of illustration that the
party employed. In other words, was the
exemplification vital to the presentation of the
information, or was it merely a convenience or,
worse, an extravagance? See, e.g., McDowell v.
Safeway Stores, Inc., 758 F.2d 1293, 1294 (8th
Cir. 1985) (per curiam). Exemplification that was
not reasonably necessary to the presentation of
one’s case to the court does not qualify for
reimbursement under section 1920(4)./6 See
McIlveen v. Stone Container Corp., 910 F.2d 1581,
1584 (7th Cir. 1990) (per curiam); Kenosha
Unified School Dist. No. 1, 620 F.2d at 1227-28.
Moreover, a finding that the exemplification was
"necessarily obtained for use in the case" does
not definitively resolve the question of
reimbursement either. Rule 54(d) makes quite
clear that although there is a presumption in
favor of a cost award to the prevailing party,
the district court retains the discretion to
direct otherwise. Crawford Fitting Co., 482 U.S.
at 441-42, 107 S. Ct. at 2497. In all cases,
therefore, the court retains the equitable
authority to deny compensation to a prevailing
party for costs that are compensable under the
statute. Ibid.; see also SCA Servs., Inc. v.
Lucky Stores, 599 F.2d 178, 180 (7th Cir. 1979);
but see Weeks, 126 F.3d at 945 ("the court must
award costs unless it states good reasons for
denying them").
In this case, Judge Pallmeyer denied the award
of costs for the multi-media presentation based
solely on her determination that such costs
resulted from the presentation of exhibits rather
than the physical preparation of them. As the
foregoing discussion indicates, we believe that
prevailing parties can, under appropriate
circumstances, be reimbursed for the cost of
computer generated, multi-media presentations
even to the degree that such presentations are
used not to produce exhibits but rather to
display them to the court. Consequently, we
cannot sustain the denial of costs for the reason
Judge Pallmeyer articulated. It may be that the
judge would have reached the same conclusion on
other grounds--she might conclude that the multi-
media system that the defendants employed was not
reasonably necessary or that equitable
considerations otherwise militate against part or
all of the costs the defendants have sought for
this system. She did not reach these
considerations, however, and it is not our place
to predict how she would resolve them. We will
therefore remand the matter of costs for further
consideration.
IV.
We affirm the judgment in favor of the
defendants. The denial of costs to the defendants
for use of the computerized, multi-media system
is vacated and remanded for further consideration
consistent with this opinion. Costs to the
defendants.
/* Judge Pallmeyer presided over the trial of this
case with the consent of the parties. Subsequent
to the completion of the trial, the United States
Senate confirmed her appointment to serve as a
District Judge.
/1 Perkins thought--incorrectly, he was later
informed--that directing profanity at a police
officer constituted disorderly conduct.
/2 See generally Christianson v. Colt Indus.
Operating Corp., 486 U.S. 800, 815-17, 108 S. Ct.
2166, 2177-78 (1988); Arizona v. California, 460
U.S. 605, 618-19, 103 S. Ct. 1382, 1391 (1983);
Best v. Shell Oil Co., 107 F.3d 544, 546 (7th
Cir. 1997).
/3 Because the jury could have concluded that
Perkins might reasonably have believed he had
probable cause to arrest Tyrone for battery, we
need not consider whether Perkins’ belief that
Tyrone had also engaged in disorderly conduct was
also reasonable.
/4 We acknowledge that due to a medical emergency in
his family, the plaintiffs’ lead counsel was
absent from the jury instruction conference.
Nonetheless, the plaintiffs were represented at
the conference by his co-counsel. Furthermore,
the Cefalus’ lead counsel received a final set of
the instructions on the morning of closing
argument and was present when the jury was later
charged. Consequently, he had ample opportunity
to object before the jury retired to deliberate,
as Rule 51 requires. His failure to do so
confirms that appellate review is foreclosed, as
we have been unwilling to extend the plain error
doctrine to civil jury instructions given the
unequivocal terms of the rule. See, e.g., Carter
v. Chicago Police Officers, 165 F.3d 1071, 1077
(7th Cir. 1998), citing Deppe v. Tripp, 863 F.2d
1356, 1361-62 (7th Cir. 1988); Knox v. Indiana,
93 F.3d 1327, 1333 (7th Cir. 1996).
/5 The court cited two cases for the proposition
that recovery under section 1920(4) is limited to
the expense of physically preparing exhibits:
Zuill v. Shanahan, 80 F.3d 1366, 1371 (9th Cir.
1996), cert. denied, 519 U.S. 1090, 117 S. Ct.
763 (1997), and In re Air Crash Disaster at John
F. Kennedy Int’l Airport, 687 F.2d 626, 631 (2d
Cir. 1982). The line that these cases draw,
however, is one between the cost of conducting
the research and analysis eventually reflected in
the exhibit, and the cost of actually preparing
the exhibit itself. The latter expense is deemed
compensable while the former is not. See, e.g.,
Zuill, 80 F.3d at 1371 ("Fees for exemplification
and copying ’are permitted only for the physical
preparation and duplication of documents, not the
intellectual effort involved in their
production.’"), quoting Romero v. City of Pomona,
883 F.2d 1418, 1428 (9th Cir. 1989).
Consequently, these cases do not address the
precise question presented here.
/6 For parties who are concerned about the prospect
of reimbursement for costly exemplification, we
take the opportunity to repeat that the issue may
be raised in advance of trial pursuant to Federal
Rule of Civil Procedure 16(c)(4) and (c)(16). See Wahl
v. Carrier Mfg. Co., 511 F.2d 209, 217 (7th Cir.
1975); see also 3 Business and Commercial Litigation in
Federal Courts sec. 47.5(a), at 813-14 (Robert L.
Haig ed.) (West Group & ABA 1998); 10 Charles
Alan Wright, et al., Federal Practice and Procedure sec.
2677, at 458 (1998).