Michael A. Willis v. William J. Lep

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2224
M ICHAEL A. W ILLIS, et al.,
Plaintiffs-Appellants,
v.
W ILLIAM J. L EPINE, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 09 CV 4208—Joan Humphrey Lefkow, Judge.
A RGUED A PRIL 12, 2012—D ECIDED JULY 23, 2012
Before E ASTERBROOK, Chief Judge, and M ANION and
S YKES, Circuit Judges.
M ANION, Circuit Judge. Plaintiffs Michael Willis and
Kendrick Owens, 14 and 16 years old, respectively, were
arrested outside of Willis’s home for allegedly dealing
drugs. After being transported to the police station, Willis
and Owens claim that they were subjected to a strip
search before being confined for several hours. Willis
and Owens were released to their families after being
2 No. 11-2224
charged with conspiracy to deliver a controlled sub-
stance and were ordered to appear at juvenile court a
few weeks later. The charges, however, were eventually
dropped. Willis and Owens then filed this suit in
federal court against the two arresting officers, alleging
false arrest and an illegal search under 42 U.S.C. § 1983,
and malicious prosecution under Illinois state law. The
case went to trial, and a jury returned a verdict for
the defendant officers on all claims. The district court
denied the plaintiffs’ post-trial motions for relief from
judgment and for a new trial. Willis and Owens
appealed, asserting that the district court wrongly
denied their post-trial motions and that defense
counsel’s alleged violation of a motion-in-limine ruling
constitutes reversible error. We affirm.
I.
Michael Willis and Kendrick Owens, two teenaged
black males, were arrested in the evening hours of Febru-
ary 26, 2006, outside of Willis’s home located at 5531
West Congress Parkway in Chicago. Owens was a friend
of Willis’s who lived on the same block. The arresting
officers were William Lepine and Derek Glowacki; they
are the defendants in this case. At trial, the two sides
gave accounts that were, at many points, directly contra-
dictory. We begin with the plaintiffs’ account.
A. Plaintiffs’ Account
Willis was 14 years old when the incident occurred. He
lived in his grandmother’s home with several members
No. 11-2224 3
of his immediate and extended family. On the day of this
incident, Willis left his house a few minutes before
7:00 p.m. to retrieve a CD from his sister, who was
waiting for him in a car outside on the street. At the
same time that Willis was obtaining the CD, his distant
cousin, Brandon Thompson, a 22-year-old black male, ap-
proached the house. Thompson purportedly stopped by
to ask another cousin (who did not live at the house) to
trade basketball jerseys. After Willis retrieved the CD
from his sister, he and Thompson began chatting on the
front porch. A few minutes later, Owens, a 16-year-old
neighbor and friend of Willis’s, came strolling down
the street and joined in the conversation.
As the three young men talked on the porch, Owens saw
an unmarked police car drive by carrying the defendant
police officers dressed in plain-clothes attire. Owens
noted that one of the officers gestured like he was asking
for marijuana. Willis did not see the unmarked police car
drive by. Owens stated that the officers then returned
ten to fifteen minutes later, exited their vehicle, and
ordered the three young men off of the porch. Willis
estimated that the total time that the young men spent
talking before being interrupted by the officers was
somewhere between five and fifteen minutes.
When the young men reached the sidewalk outside of
Willis’s home, the officers handcuffed them to one
another and searched them. Officer Glowacki then ushered
Willis, Owens, and Thompson into the back of the police
car and ran their names through the computer system to
check for outstanding warrants. While Glowacki stayed
4 No. 11-2224
in the police car, Officer Lepine scoured the block with a
flashlight for approximately thirty minutes to an hour.
After Lepine returned, the two officers spoke outside of
the car. Owens heard one of the officers quietly say, “We
still got to take it in.” The two officers then got in the
car and drove the young men to the police station.
When they arrived at the station, the officers placed
the young men in a holding area. Ten to fifteen minutes
later, Officer Lepine walked in holding two plastic bags
containing pink or purple tablets. Lepine asked the
young men, “Which one of these do you all want?” All
three men said that they did not want either bag and,
moreover, that they had never possessed the bags.
Officers Lepine and Glowacki then donned rubber gloves
and ordered the young men to undress down to their
underwear. The officers allegedly searched through all
of their clothing and then instructed the young men
to remove their underwear, lift their testicles, spread
their buttocks, and cough. After the search revealed no
contraband, the officers confined the young men. Willis
and Owens, as minors, were placed in one holding cell
while Thompson was placed in another. Willis and
Owens were then released to their families around mid-
night. It was at that time that they first learned that
they were being charged with conspiracy to deliver a
controlled substance. They were also ordered to report
to juvenile court in three weeks on March 20, 2006.
B. Defendants’ Account
Officers Lepine and Glowacki told a much different
story. They testified that they were on patrol when they
No. 11-2224 5
received a dispatch at 6:49 p.m., stating that a citizen
had reported that a black male was selling drugs at
5528 West Congress Parkway (an address just a few
houses down from Willis’s residence at 5531 West Con-
gress), and that the drugs were hidden in a nearby
vacant lot. In addition to giving the seller’s race and sex,
the report described the seller as approximately 5'7",
165 pounds, wearing a black hat, black coat, blue jeans,
and black gym shoes with a white stripe. The officers
did not respond immediately, estimating that they
arrived at the 5500 block of West Congress at 7:35 p.m.
Importantly, this estimated arrival time was based on
a police report that the officers submitted after the fact.
At trial, Lepine testified that he and Glowacki recorded
the approximate time that they arrived on the scene
only after they had returned to the police station.
After their arrival, the officers drove down the block,
noting that Willis, Owens, and Thompson were standing
in the street and further observing that Thompson
had a white stripe on his shoes as described by the dis-
patch report. The officers also noticed a vacant lot
just a few lots removed from where the three men were
standing. Given these similarities to the report’s descrip-
tions, the officers decided to park on a street north of
West Congress and then head back on foot to survey
the scene. The officers’ presence went unnoticed by the
young men because they confined their movements to
the narrow gangways that separated the buildings on
the north side of West Congress (the gangways they
used were between 5530 and 5534 West Congress). From
their surveillance positions, the officers testified that
6 No. 11-2224
they saw Thompson twice take money from individuals,
walk to the vacant lot, and return with items that the
officers believed to be drugs. Additionally, the officers
claim that they heard Willis and Owens each yell “X”
(slang for the drug Ecstasy) to passing cars and “police”
when a marked police car drove down the block.
After observing the second alleged drug transaction,
the officers returned to their car and drove back to the
5500 block of West Congress. The officers arrested the
three young men for conspiracy to sell narcotics, and
Lepine immediately searched the vacant lot for the drug
stash. He testified that he returned less than five
minutes later having found one plastic bag containing
nineteen Ecstasy pills. Lepine asserted that he did not
search the block any further.
The officers radioed dispatch at 7:41 p.m. to report that
they had arrested and were transporting Willis, Owens,
and Thompson. The officers testified that after they
arrived at the police station, they conducted a custodial
search of the three young men—notably finding $114 in
cash on Thompson—and then placed Thompson in one
holding cell and the two minors, Willis and Owens, in
another. The officers denied strip-searching the young
men or holding up two bags of pills and asking them
which bag they wanted. The officers then wrote up the
arrest report and received approval for the charges
of conspiracy to manufacture or distribute a controlled
substance. The officers also contacted Willis’s and
Owens’s families, and, after fingerprinting and photo-
graphing the three young men, the officers released
No. 11-2224 7
Willis and Owens into their families’ custody at approxi-
mately 11:30 p.m.
C. Procedural Background
As ordered, Willis and Owens, along with their mothers,
went to juvenile court on March 20, 2006. Maintaining
their innocence, Willis and Owens rejected a deal that
would have dismissed the charges after they had com-
pleted 300 hours of community service. Nevertheless,
the charges were eventually dismissed. Thompson, who
was charged with delivery of a controlled substance,
pleaded guilty.
Willis and Owens then filed this suit in federal district
court against officers Lepine and Glowacki, alleging
false arrest and illegal search claims under 42 U.S.C. § 1983,
and a malicious prosecution claim under Illinois state
law. The case went to trial on January 11, 2011. Before
trial, however, the plaintiffs filed two motions in limine:
(1) to bar evidence that made reference to the 5500 block
of West Congress Parkway as a “high-crime area”; and
(2) to bar evidence of Thompson’s prior arrests and
convictions (including his latest guilty plea in the under-
lying criminal case). The district court judge granted
both of the plaintiffs’ motions.
At trial, plaintiffs’ counsel went to great lengths to
establish Willis and Owens as young men of impeccable
character. Indeed, the plaintiffs assert in their appellate
brief that “[t]he whole thrust of plaintiffs’ case at trial was
the credibility of the plaintiffs.” To that end, the plain-
8 No. 11-2224
tiffs put on evidence of their exemplary community
service, strong family ties, abstinence from illicit drug
sales and use, and general law-abiding behavior.
Following a three-day trial the jury returned a verdict
for the defendants on all counts.
The plaintiffs then filed two post-trial motions: one
under Federal Rule of Civil Procedure 60(b)(3) for relief
from judgment; and one under Rule 59(a) for a new trial.
In their Rule 60(b)(3) motion, the plaintiffs argued that
the trial was unfair because defense counsel had made
an improper speaking objection during the plaintiffs’
rebuttal argument in summation, and because defense
counsel had allegedly violated the motion-in-limine
ruling that prohibited any mention of Thompson’s
arrests and convictions. The plaintiffs’ Rule 59(a) mo-
tion was skeletal: the two-page brief incorporated by
reference the arguments set forth in the Rule 60(b)(3)
motion memorandum and then, in a rather perfunctory
manner, recited the Rule 59(a) standard for determining
when a new trial is warranted. The district court denied
both motions, and the plaintiffs appealed.
II.
The plaintiffs’ appeal focuses primarily on the district
court’s denial of their post-trial motions; however, they
also contend that the district court erred by repeatedly
allowing defense counsel to violate the motion-in-
limine order not to reference the 5500 block of West
Congress as a “high-crime area.” We will address each
in turn.
No. 11-2224 9
A. Rule 60(b)(3) Motion for Relief from Judgment
We review a district court’s decision to deny a Rule 60(b)
motion for relief from judgment for an abuse of discre-
tion. Wickens v. Shell Oil Co., 620 F.3d 747, 758 (7th Cir.
2010) (citing Musch v. Domtar Indus., Inc., 587 F.3d 857, 861
(7th Cir. 2009)). We are mindful of the fact that “ ‘[a]buse of
discretion’ in cases under Rule 60(b) is restricted review
indeed. It limits review to cases in which no reasonable
person could agree with the district court’s decision.”
Tolliver v. Northrop Corp., 786 F.2d 316, 318 (7th Cir. 1986)
(citation omitted). Accordingly, “ ‘[i]t is well-established
that Rule 60(b) relief is an extraordinary remedy and is
only granted in exceptional circumstances.’ ” Wickens, 620
F.3d at 759 (quoting Dickerson v. Bd. of Educ., 32 F.3d 1114,
1116 (7th Cir. 1994)).
Rule 60(b) lists several reasons for which a court may
grant relief from a final judgment, order, or proceeding.
Fed. R. Civ. P. 60(b). Subsection (3), the provision on
which the plaintiffs rely, allows for relief in the case of
“fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party.”
Fed. R. Civ. P. 60(b)(3). “To obtain relief under Rule
60(b)(3), a party must show that she has a meritorious
claim that she was prevented from ‘fully and fairly pre-
senting’ at trial as a result of the adverse party’s fraud,
misrepresentation, or misconduct.” Wickens, 620 F.3d at
758-59 (citations omitted). Here, the plaintiffs’ motion
focused on alleged incidents of misrepresentation and
misconduct by defense counsel at trial.
The plaintiffs first complain that defense counsel
made an improper speaking objection during plaintiffs’
10 No. 11-2224
counsel’s rebuttal argument at summation. The exchange,
in relevant part, went as follows:
Plaintiffs’ Counsel: Each one of these plaintiffs’
witnesses, including the plaintiffs, got on the stand
and told you who they are. They’re working people.
They’re honest people. You didn’t hear anything
about anyone having a criminal record or back-
ground or anything negative about anybody. They
came and told you the truth. And that’s all we can
do in our system. That’s all we can do. We have this
building, we have a judge, we have a jury so we can
come and tell you what happened. And the ridicule
that [defense counsel] gives about this neighborhood.
If these kids were bad kids, you’d know. He would
have wanted you to know that they were doing
drugs and were gangbangers and they were doing
drugs and—
Defense Counsel: Objection, your Honor. We’re not
allowed to introduce that, and counsel knows that.
She threw that in the opening close, and she threw it
in again. We can’t bring that to the jury.
Plaintiffs’ Counsel: Your Honor, I object to that
statement. There is nothing here.
The Court: All right. I overrule the objection. Go
ahead.
Plaintiffs’ Counsel: Thank you. If there were negative
things, you would have heard about them. We have
got positive things. Good family, church, jobs, and
he’s complaining about that. He said this is embel-
lishing.
No. 11-2224 11
The plaintiffs contend on appeal that defense counsel’s
objection was a knowing and deliberate attempt to
suggest to the jury that there was evidence—which had
not been produced during the trial—that Willis and
Owens were either drug dealers or “gangbangers.” This
improper suggestion, the plaintiffs argue, prevented
them from receiving a full and fair opportunity to
present their case.
As the district court noted, defense counsel’s objection
implied that there was evidence, which had been barred
from trial, that the plaintiffs were drug dealers or
gangbangers. But the court had not excluded any
evidence of the sort; defense counsel’s suggestion to the
contrary was, as the district court correctly observed,
“highly improper.”
Yet we hasten to note that this objection occurred
at closing—after the plaintiffs had put forth their
evidence during the trial. “A new trial is warranted only
if allegedly improper closing remarks depart from the
evidence presented at trial and result in substantial
prejudice to the opposing party.” Jones v. Lincoln Elec. Co.,
188 F.3d 709, 731 (7th Cir. 1999) (citing Marshall v. Porter
Cnty. Plan Comm’n, 32 F.3d 1215, 1221 (7th Cir. 1994)).
Accordingly, as “ ‘[t]his court has repeatedly explained[,]
improper comments during closing argument rarely rise
to the level of reversible error.’ ” Soltys v. Costello, 520
F.3d 737, 745 (7th Cir. 2008) (quoting Miksis v. Howard,
106 F.3d 754, 764 (7th Cir. 1997)). We believe that this
axiom applies with equal force to improper speaking
objections made at closing argument. This is especially
12 No. 11-2224
true where, as here, any prejudicial effect that the
improper remarks may have had on the jury is quickly
cured. In this case, the plaintiffs’ counsel immediately
replied to the objection, “there’s nothing here,” the judge
agreed, and the plaintiffs’ counsel was able to continue
making her argument. Moreover, the judge’s instruction
to the jury that statements made by the attorneys are
not evidence was sufficient to remedy any harm that
may have been caused by defense counsel’s objections.
These instructions were given both before and after
closing arguments. Because we presume that the jury
follows the court’s instructions, id. (citing Chlopek v. Fed.
Ins. Co., 499 F.3d 692, 702 (7th Cir. 2007)), such “curative
instructions to the jury mitigate harm that may other-
wise have resulted from improper [objections].” Id. (citing
Jones, 188 F.3d at 732). Defense counsel’s objection
during summation did not prevent the plaintiffs from
fully and fairly presenting their case.
The plaintiffs next argue that defense counsel asked
numerous questions at trial that violated the
court’s motion-in-limine ruling that barred all evidence
of Thompson’s prior arrests and convictions. Specifically,
defense counsel asked the plaintiffs whether Thompson
was a plaintiff in this case or whether Thompson had filed
his own lawsuit. Defense counsel also asked the plaintiffs
about why Thompson was in the neighborhood at the
time of the arrest and why Thompson was not called as
a witness. The plaintiffs argue that defense counsel’s
violation of the court’s ruling prevented them from
fully and fairly presenting their case.
No. 11-2224 13
As the district court noted, defense counsel’s inquiries
about Thompson’s absence from this case were arguably
improper because the answers to such questions could
have alerted the jury to Thompson’s arrest and subse-
quent confession to dealing drugs (which was, of course,
the precise thing that was precluded by the motion
in limine). But we are not convinced that those ques-
tions prevented the plaintiffs from fully and fairly pre-
senting their case. As the district court noted, it was the
plaintiffs’ own trial strategy that led to Thompson’s
absence from the case. This left the jury to wonder why
such a key figure—the plaintiffs’ fellow arrestee, no
less—was conspicuously absent from the case. In light of
the officers’ testimony, it would not have been a stretch
for the jury to conclude that it was Thompson whom
the officers had observed selling drugs. Thus, defense
counsel’s questions simply highlighted (albeit improp-
erly) an already obvious gap in the plaintiffs’ case.1 Those
1
The plaintiffs point to a juror’s note, discovered by plaintiffs’
counsel after the trial, as evidence that defense counsel’s
questions about Thompson prevented the plaintiffs from fully
presenting their case. The note asked, “Can we find out what
was the disposition of the Brandon Thompson case?” As we just
noted, however, this is a reasonable question that a diligent juror
might ask when a main person from the case’s narrative is
absent from the case. It does not suggest that the jury’s thoughts
were tainted due to defense counsel’s inquiries about Thomp-
son. And aside from that, with exceptions not relevant here
Federal Rule of Evidence 606(b) clearly prohibits the court
from introducing any material that evinces how the jury arrived
(continued...)
14 No. 11-2224
questions did not deny the plaintiffs an opportunity to
fully and fairly present their case.
Questions about Thompson’s activities on the block
were not improper at all; indeed, they were inevitable
because Thompson’s participation was a key part of the
story. The plaintiffs admit that Thompson was with
them in front of Willis’s home and that all three of them
were arrested and transported to the police station to-
gether. Plaintiffs’ counsel obviously recognized the need
to explain Thompson’s presence, and so she elicited
testimony from Willis that Thompson was on the 5500
block of West Congress Parkway for the sole purpose
of trading a basketball jersey. What is more, on di-
rect examination plaintiffs’ counsel pointedly asked
Willis whether he “was involved in a drug transaction on
February 26, 2006,” and asked Owens whether he was
“helping Brandon Thompson sell drugs on your block.”
The plaintiffs each denied any involvement in drug
sales. This testimony directly contradicted the defen-
dants’ version of events, which was highlighted by the
officers’ observation of Thompson’s drug transactions
as well as by Willis’s and Owens’s alleged participation
in soliciting those transactions. It was thus appropriate
for defense counsel to cross-examine the plaintiffs
with questions concerning Thompson’s activities on the
block, and therefore the district court’s decision to
1
(...continued)
at its verdict. See United States v. Berry, 92 F.3d 597, 601 (7th
Cir. 1996).
No. 11-2224 15
allow such questioning cannot provide the basis for
relief from judgment.
In sum, the district court did not abuse its discretion
in denying the plaintiffs’ Rule 60(b)(3) motion for relief
from judgment because defense counsel’s speaking ob-
jection at summation did not prevent the plaintiffs
from fully and fairly presenting their case at trial. And
defense counsel’s questions about Thompson’s involve-
ment in this or any other lawsuit did not affect the plain-
tiffs’ ability to fully and fairly present their case. More-
over, questions about Thompson’s activities on the block
were reasonable given plaintiffs’ counsel’s own line of
questioning. Accordingly, the plaintiffs are not entitled
to the extraordinary remedy of relief from judgment.
B. Rule 59(a) Motion for New Trial
As we noted above, the plaintiffs’ motion for a new
trial was quite barren. The plaintiffs recited the standard
set forth in Rule 59(a), and then merely incorporated
by reference the same attorney-misconduct arguments
made in their motion for relief from judgment. After
again reciting the Rule 59(a) standard, the plaintiffs
requested that the court order a new trial as an alterna-
tive to setting aside the judgment. The district court
examined the plaintiffs’ Rule 60(b)(3) and Rule 59(a)
motions together because they contained identical argu-
ments and because “the applicable legal standards
are substantially the same.”
The plaintiffs now contend that the district court erred
in two respects. First, they argue, the district court mis-
16 No. 11-2224
takenly held that the two legal standards were
sufficiently similar such that the motions could be con-
strued together. Second, as a result of the court’s alleged
failure to apply the correct standard, the plaintiffs argue
that the district court failed to address whether the
jury’s verdict went against the manifest weight of the
evidence.
We review de novo the issue of whether the district
court applied the proper legal standard in analyzing a
Rule 59(a) motion for a new trial. Baptist v. City of
Kankakee, 481 F.3d 485, 490 (7th Cir. 2007). A court may
only order a new trial if the jury’s “ ‘verdict is against the
manifest weight of the evidence, . . . or if for other
reasons the trial was not fair to the moving party.’ ” Marcus
& Millichap Inv. Servs. v. Sekulovski, 639 F.3d 301, 313
(7th Cir. 2011) (quoting Pickett v. Sheridan Health Care
Ctr., 610 F.3d 434, 440 (7th Cir. 2010)). Here, the plaintiffs’
threadbare Rule 59(a) motion did not develop any argu-
ments about how the jury’s verdict went against the
manifest weight of the evidence. Instead, the plaintiffs
relied exclusively on the attorney-misconduct arguments
from their Rule 60(b)(3) motion. So the only argument
that the district court had to consider on the plaintiffs’
Rule 59(a) motion is that defense counsel’s misconduct
resulted in an unfair trial. As we have held before,
“ ‘[t]he misconduct of counsel justifies a new trial where
that misconduct prejudiced the adverse party.’ ” Davis v.
FMC Corp., 771 F.2d 224, 233 (7th Cir. 1985) (quoting
Wiedemann v. Galiano, 722 F.2d 335, 337 (7th Cir.
1983)). This standard is indeed substantially similar to
Rule 60(b)(3)’s “fully-and-fairly” standard; therefore, the
No. 11-2224 17
district court did not err in examining the two motions
together. And for the reasons set forth in the previous
section, the court did not err in refusing to grant a
new trial.
But the plaintiffs maintain that the district court
should have also considered whether the jury’s verdict
was against the manifest weight of the evidence. Yet as
we noted above, the plaintiffs failed to develop any
arguments before the district court that the jury’s verdict
was against the manifest weight of the evidence. Merely
reciting the Rule 59(a) standard and then tossing the
motion into the court’s lap is not enough. “Failure to
adequately present an issue to the district court waives
the issue on appeal.” Kunz v. DeFelice, 538 F.3d 667, 681
(7th Cir. 2008) (citing Belom v. Nat’l Futures Ass’n, 284
F.3d 795, 799 (7th Cir. 2002)). Thus, the plaintiffs have
waived any argument that the jury’s verdict went
against the manifest weight of the evidence.
Even if the plaintiffs had not waived that argument,
however, the jury’s verdict was not against the manifest
weight of the evidence. When considering whether
the jury’s verdict goes against the manifest weight of the
evidence, a court analyzes the “general sense of the
evidence, assessing the credibility of the witnesses and
the comparative strength of the facts put forth at trial.”
Mejia v. Cook Cnty., 650 F.3d 631, 633 (7th Cir. 2011) (cita-
tions omitted). But “[a] verdict will be set aside as
contrary to the manifest weight of the evidence only if
‘no rational jury’ could have rendered the verdict.” Moore
ex rel. Estate of Grady v. Tuelja, 546 F.3d 423, 427 (7th
18 No. 11-2224
Cir. 2008) (quoting King v. Harrington, 447 F.3d 531, 534
(7th Cir. 2006)). Moreover, “[j]ury verdicts deserve par-
ticular deference in cases with ‘simple issues but
highly disputed facts.’ ” Id. (quoting Latino v. Kaizer, 58
F.3d 310, 314 (7th Cir. 1995)).
Here, the plaintiffs argue that the timeline offered by
the defendants regarding the surveillance, arrest, and
transportation of Willis, Owens, and Thompson was
physically impossible and therefore that no rational jury
could have believed the defendants’ story. Further, the
plaintiffs assert that Thompson’s appearance was so
dissimilar to the description of the alleged drug dealer
provided to the defendants by the dispatcher—specifi-
cally, that the only matching characteristic was the
white stripe on his shoes—that no rational jury could
believe that the officers had a legitimate basis for
arresting Thompson, Willis, and Owens. Finally, the
plaintiffs dispute the defendants’ contention that the
defendants conducted surveillance from a gangway
between 5530 and 5534 West Congress Parkway
because two Rottweilers often patrolled that area and
would have alerted bystanders had the officers actually
accessed that gangway.
The jury’s construction of this evidence was rational.
The plaintiffs had ample opportunity to cross-examine
the defendants on their timeline—the defendants ex-
plained that the times listed on their police reports were
estimates and that actual events may have taken longer
to unfold. This is a reasonable explanation that the
jury obviously credited over the plaintiffs’ version of
No. 11-2224 19
events. The plaintiffs’ argument that the defendants
unreasonably relied on the white stripe on Thompson’s
shoe as the sole basis for arresting both him and the
plaintiffs is also unavailing. The officers’ observation of
the white stripe on Thompson’s shoe was not a sole
basis for arrest—rather, it was a factor that they used
in their decision to conduct surveillance. When
conducting that surveillance, the defendants testified
that they observed Thompson engage in two drug trans-
actions (with the alleged assistance of Willis and
Owens). Only then did the officers arrest Thompson,
Willis, and Owens. The jury evidently gave this account
credence—which it was entitled to do—and thus reason-
ably concluded that the officers had probable cause to
arrest the plaintiffs. And finally, no witness at trial could
confirm that the two Rottweilers were actually in the
gangway on the evening of February 26, 2006, so the
plaintiffs never established that the defendants had to
contend with the two aggressive dogs while conducting
their surveillance. At bottom, the defendants’ explana-
tions for these possible deficiencies in their story are
reasonable. The plaintiffs tell a contradictory story that
certainly made this a case with “ ‘simple issues but highly
disputed facts.’ ” Tuelja, 546 F.3d at 427 (quoting Latino,
58 F.3d at 314). The jury reasonably sorted out the con-
flicting testimony.
The district court properly construed the plaintiffs’
Rule 60(b)(3) and Rule 59(a) motions together and
rightly concluded that a new trial was not warranted. And
because the plaintiffs failed to advance any argument
20 No. 11-2224
that the jury’s verdict was against the manifest weight
of the evidence, the district court did not err in refusing
to consider the trial evidence under that standard.
Finally, even if the plaintiffs had properly presented that
argument to the district court, the jury’s verdict was
nevertheless based on a rational construction of the
evidence.
C. Motion in Limine Barring Mention of
“High-Crime Area”
The plaintiffs contend that it was error for the district
court to allow defense counsel to continually violate
the motion-in-limine ruling that prohibited any reference
to the 5500 block of West Congress Parkway as a “high-
crime area.” Although the plaintiffs concede that
defense counsel did not use the phrase “high-crime area,”
the plaintiffs argue that defense counsel repeatedly
referred to the block as a high-drug area and otherwise
insinuated that the block was infected with criminal
behavior. Although the plaintiffs highlight several in-
stances during the trial during which they believe that
defense counsel violated the motion-in-limine ruling,
the plaintiffs objected to just two of those instances. We
review the district court’s ruling in those two instances
for an abuse of discretion. Bogan v. City of Chicago, 644
F.3d 563, 571 (7th Cir. 2011) (citation omitted). Besides
those two instances, the plaintiffs also contest three
other occasions where defense counsel allegedly violated
the court’s motion-in-limine ruling. But the plaintiffs
did not object to these three other alleged violations, so
No. 11-2224 21
the plaintiffs have not preserved this argument for
appeal. Bankcard Am., Inc. v. Universal Bancard Sys., Inc.,
203 F.3d 477, 482 (7th Cir. 2000).
We begin with the two instances where the plaintiffs
objected at trial and thus preserved their argument for
appeal. The first alleged violation of the motion-in-limine
ruling occurred when defense counsel was questioning
Willis:
Defense Counsel: You have seen people waving down
cars on your block, haven’t you?
Willis: Yes, I have, but I don’t know what they are
doing.
Defense Counsel: You have seen them, but you
don’t know what they are doing.
Willis: No.
Defense Counsel: And you have seen them more
than once, haven’t you?
Willis: I don’t know.
Defense Counsel: And your mother has told you
that if you see them on the corner, you just cross the
street, right?
Willis: Yes.
Defense Counsel: Would it be fair to say that you
know that they are up to no good with what they are
doing?
Willis: Yeah. I don’t know what they are doing, but
they got to be if you told me that.
22 No. 11-2224
Defense Counsel: Well do you believe that the
people that you are seeing wave down cars and doing
these things on your block are up to no good? Do
you believe that?
Plaintiffs’ Counsel: I’m going to object. Could we
have a sidebar?
The Court: All right. I’ll sustain the objection. It is not
consistent with his testimony.
Defense Counsel: These things that you see, these
are going on right around your house, aren’t they?
Willis: Yes.
Defense Counsel: That’s all I have, Judge.
Although it is not entirely clear from the transcript, plain-
tiffs’ counsel was presumably objecting to defense coun-
sel’s continued inquiry into the depth of Willis’s knowl-
edge of suspicious behavior in the neighborhood.
The district court sustained plaintiffs’ counsel’s objec-
tion—although not on motion-in-limine grounds—and
defense counsel finished his examination of Willis
after asking a question about the proximity of the suspi-
cious behavior to his house.
It was appropriate for the district court to allow
defense counsel to probe the depth of Willis’s knowledge
of drug sales and drug-selling techniques on the block.
After all, the plaintiffs’ defense was based on their igno-
rance of such matters. Once defense counsel had
pursued this line of questioning to its limit, the district
court sustained an objection to further inquiry and the
examination promptly concluded. This line of ques-
No. 11-2224 23
tioning did not violate the motion-in-limine ruling, and
therefore district court did not abuse its discretion.
The second alleged violation of the motion-in-
limine ruling occurred when defense counsel questioned
Michael Willis’s mother, Janice Jones-Willis. Specifically,
on cross-examination, defense counsel asked Jones-Willis
about her knowledge of drug activity on the block and
about how many times she had contacted police while
exercising her role as a community representative. Plain-
tiffs’ counsel objected to this line of questioning, but
the district court overruled that objection. We note that,
on direct examination, Jones-Willis had testified that
she was a community representative who knew the
neighborhood well—“[w]ell enough to know if something
was going on in front of my house, [the neighbors]
would know to call me, either on my cell or on my
home phone.” Given this testimony, it was proper for
the district court to allow defense counsel to test Jones-
Willis’s knowledge of drug activity on her block. And
when defense counsel pressed Jones-Willis to give an
estimate of the number of times that she had called
police concerning drug activity on her block, the district
court instructed counsel to “[m]ove on.” This line of
questioning did not violate the motion-in-limine
ruling and, therefore, the district court did not abuse
its discretion.
The plaintiffs also point to three other instances at trial
in which they assert that defense counsel violated the
court’s motion-in-limine ruling. But as we noted above,
the plaintiffs failed to object to these instances and thus
24 No. 11-2224
have not preserved this argument for review. If this
were a criminal case, we would readily analyze the plain-
tiffs’ arguments under the plain error standard of review.
But the plain-error doctrine “is rarely applied in civil
cases.” Tuelja, 546 F.3d at 430 (citing Stringel v. Methodist
Hosp. of Ind., Inc., 89 F.3d 415, 421 (7th Cir. 1996)). Indeed,
“[p]lain error is only available in civil cases if a party can
demonstrate that: (1) exceptional circumstances exists;
(2) substantial rights are affected; and (3) a miscarriage
of justice will occur if plain error review is not applied.”
Id. (citations omitted). The plaintiffs are not able to
show any error at all, let alone satisfy any of these ele-
ments.
The three alleged violations of the motion-in-limine
ruling to which the plaintiffs point all involve defense
counsel’s inquiries into drug activity on the block. The
plaintiffs essentially ask us to conclude that questions
about drug activity on the block are synonymous with
painting the block as a “high-crime area.” But this is
not what the motion-in-limine ruling prohibited. Rather,
the court’s ruling “bar[red] references to the 5500 block
of West Congress Parkway as a high-crime area.” In
keeping with the district court’s ruling, defense counsel
never referred to the block as a “high-crime area.” And
counsel was certainly entitled to elicit testimony about
the block’s characteristics. Indeed, establishing the fre-
quency of drug activity on the block was relevant
because the underlying charges were drug-related and
the plaintiffs denied any knowledge of drug activity on
their block. If the defense was able establish frequent
drug activity (or, much more, the plaintiffs’ knowledge
No. 11-2224 25
of drug activity), that evidence would tend to discredit
the plaintiffs’ testimony—a necessary tactic in a case
where the parties gave disparate accounts of the events.
Accordingly, the district court did not err in allowing
defense counsel to question witnesses about drug
activity on the block and we need not conduct a review
for plain error.
The district court did not abuse its discretion by
allowing defense counsel to question Willis and Jones-
Willis about their knowledge of drug activity on the
5500 block of West Congress Parkway. The plaintiffs
failed to preserve their argument that other instances
in which defense counsel questioned witnesses about
drug activity on the block violated the district court’s
motion-in-limine ruling. And because such questioning
was proper, we will not employ the plain-error doctrine.
III.
The district court did not abuse its discretion in
denying the plaintiffs’ Rule 60(b)(3) motion for relief
from judgment because defense counsel’s speaking ob-
jection at summation did not prevent the plaintiffs from
fully and fairly presenting their case at trial. Further,
defense counsel’s questions about Thompson’s involve-
ment in this or any other lawsuit did not affect the plain-
tiffs’ ability to fully and fairly present their case, and
questions about Thompson’s activities on the block
were reasonable given plaintiffs’ counsel’s own line of
questioning. The district court thus properly denied the
plaintiffs’ Rule 60(b)(3) motion.
26 No. 11-2224
The district court also did not err in construing the
plaintiffs’ Rule 60(b)(3) motion and Rule 59(a) motion
together because the plaintiffs made identical attorney-
misconduct arguments in each motion. And because
the plaintiffs did not argue that the jury’s verdict went
against the manifest weight of the evidence in their
Rule 59(a) motion, they have waived that argument on
appeal. Further, even if the district court had considered
the plaintiffs’ argument, the jury’s verdict was based on
a reasonable construction of the evidence and thus did
not go against the manifest weight of the evidence.
Finally, the district court did not abuse its discretion
by allowing defense counsel to question Willis and Jones-
Willis about their knowledge of drug activity on the
5500 block of West Congress Parkway. The plaintiffs also
failed to preserve their argument that other instances
in which defense counsel questioned witnesses about
drug activity on the block violated the district court’s
motion-in-limine ruling. Such questioning was proper
in any event, so we will not review the plaintiffs’ argu-
ment under the plain-error doctrine. For these reasons,
we A FFIRM .
7-23-12