In the
United States Court of Appeals
For the Seventh Circuit
Nos. 08-2467 & 08-2595
A LEJANDRO D URAN, et al.,
Plaintiffs-Appellees/
Cross-Appellants,
v.
T OWN OF C ICERO , ILLINOIS,
Defendant-Appellant/
Cross-Appellee,
and
D INO V ITALO and W ILLIAM P ESLAK,
Defendants-Appellees.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 C 6858—John F. Grady, Judge.
A RGUED F EBRUARY 17, 2010—D ECIDED A UGUST 9, 2011
2 Nos. 08-2467 & 08-2595
Before R IPPLE, M ANION, and S YKES, Circuit Judges.
S YKES, Circuit Judge. These appeals come to us following
a complex jury trial in a lawsuit brought by scores of
individual plaintiffs against 17 police officers and the
Town of Cicero, Illinois, alleging federal civil-rights
violations and various state-law torts. The claims arose
out of an ugly confrontation between officers of the
Cicero police force and nearly 100 partygoers—most of
Mexican descent—who were celebrating a baptism at a
Town of Cicero home. Responding to neighborhood
complaints about the party, officers arrived on the scene
and first attempted to quiet and later to disperse the
crowd. Some of the revelers objected to these efforts, and
after a period of escalating tension between police and
the party guests, a full-blown melee ensued. By night’s
end many people—officers and civilians alike—were
injured, and seven people were placed under arrest.
In the wake of this incident, 78 of the partygoers filed
suit against 17 officers and the Town alleging a raft of
federal and state causes of action, including claims
under 42 U.S.C. § 1983 for use of excessive force, false
arrest, and deprivation of equal protection, and state-
law tort claims for battery, malicious prosecution,
hate crimes, and evidence spoliation. Complicating mat-
ters, different plaintiffs pursued different claims
against various combinations of individual named
officers, unidentified officers, and the Town. Needless to
say, trying this unwieldy case presented many chal-
lenges. The trial took six weeks, and in the end the jury
returned sizable verdicts in favor of 23 of the plaintiffs
Nos. 08-2467 & 08-2595 3
against six of the individual officers and the Town.
The district court entered judgment on the verdicts, but
the judgment appears to permit 13 of the 23 success-
ful plaintiffs to recover twice for the same injury on
their state-law claims—once from the individual officer
who was found liable and again from the Town. The
Town filed a timely motion under Rule 59(e) of the
Federal Rules of Civil Procedure to correct this error, but
the district court denied the motion. The Town appealed,
and the plaintiffs cross-appealed on a handful of eviden-
tiary issues.
The Town’s objection to the judgment is well-taken;
the Town’s liability for the state-law claims against its
officers is based on respondeat superior and is therefore
joint and several. The judgment does not reflect this
and thus can be read to permit double recovery. As we
will explain, this error flowed from confusing jury in-
structions and an improperly crafted special-verdict
form. We reverse and remand with instructions to
amend the relevant portions of the judgment. We reject
the arguments raised in the plaintiffs’ cross-appeal. The
challenged evidentiary rulings do not reflect an abuse
of discretion.
I. Background
A. Town of Cicero Police Forcibly Break Up a
Boisterous Party
On September 2, 2000, Alejandro and Maria Duran
hosted a party at their Town of Cicero home in honor of
their daughter’s baptism. At its peak there were close
4 Nos. 08-2467 & 08-2595
to 100 guests at this event. During the course of the eve-
ning, the Cicero Police Department received two
separate telephone complaints from neighbors upset
about the party. The police response to the second call
was tense and eventually turned violent.
Officer Robert DeCianni was dispatched to the Duran
home to deal with the second call. He had been there
only moments earlier to handle the first complaint
about improperly parked cars. Almost as soon as
DeCianni approached the front yard, he found himself
embroiled in a heated verbal exchange with partygoers
who were celebrating outside the home. The source of
this tension was disputed at trial. According to testimony
from some of the plaintiffs, DeCianni was in a foul and
belligerent mood as soon as he reappeared on the scene.
Using racially insensitive language interspersed with
profanity, he crudely ordered the Durans to shut the
party down. In contrast, under the Town’s version of
events, the party guests were initially hostile and com-
bative toward DeCianni.
Both sides agree that the situation soon became com-
pletely unmanageable. DeCianni called for backup, and
as the verbal jousting intensified, even more reinforce-
ments were requested. Within several minutes, Cicero’s
entire on-duty police force was present outside the
Duran home, accompanied by members of neighboring
police departments. The name-calling and agitation per-
sisted on both sides. The officers amassed outside the
Duran home eventually entered the property through
the front gate. Again, the rationale for this decision
Nos. 08-2467 & 08-2595 5
was disputed at trial. The officers claimed they were
attempting to arrest Gonzalo Duran, Alejandro’s brother,
for throwing a beer bottle at DeCianni. The plaintiffs
maintain that the officers’ actions were animated by
antipathy against the party guests based on their
Mexican descent.
Whatever the cause, the police presence on the
Duran property was inflammatory, and a violent melee
broke out almost immediately. The police used pepper
spray, night sticks, and other forms of physical force
to subdue combative partygoers and compel the rest to
move indoors. The 78 plaintiffs in this case—including
men, women, and children—claimed they suffered
various injuries at the hands of the police. At least five
police officers received medical treatment for bites and
bruises sustained in the altercation. Seven of the plain-
tiffs here—Alejandro Duran, Armando Duran, Adolfo
Duran, Gonzalo Duran, Joel Uribe, Heriberto Uribe, and
Juan Carlos Uribe—were arrested. Juan Carlos Uribe
was released without being charged. Misdemeanor com-
plaints were issued against Heriberto and Joel Uribe
for obstructing a peace officer, but these charges were
never prosecuted. The four Duran brothers were prose-
cuted on charges of battery and obstructing or resisting
a peace officer; they were acquitted by a jury.
B. The Litigation
As we have noted, 78 of the partygoers filed suit against
17 individual officers and the Town of Cicero. The com-
plaint accused the individual defendants of various
6 Nos. 08-2467 & 08-2595
constitutional violations under 42 U.S.C. § 1983 (excessive
force, due process, equal protection, and false arrest)
and several intentional torts under Illinois law (malicious
prosecution, battery, hate crimes, and intentional inflic-
tion of emotional distress). The complaint also alleged
that the Town was liable under § 1983 for maintaining
a policy of indifference to the use of excessive force by
its officers, see Monell v. Dep’t of Soc. Servs., 436 U.S. 658
(1978), and also for spoliation of evidence (more about
this in a moment). In addition, the plaintiffs claimed
that the Town was vicariously liable under the doctrine
of respondeat superior for the state-law torts committed
by its officers.
The Town’s role in this case became needlessly compli-
cated and warrants further explanation. Prior to trial
the Town formally waived its right to contest its liability
under § 1983 and stipulated to the entry of judgment in
the nominal amount of $1.00 in favor of any plaintiff
who prevailed against an individual defendant on any
federal claim. The district court accepted this stipulation,
which made it unnecessary to submit the Monell policy
claim to the jury. Also before trial the district court
entered an order that the evidence-spoliation claim
would be tried after the jury had rendered its verdicts on
all of the other claims. The rationale for this sequential
approach was that the spoliation claim might not need
to be tried at all based on the jury’s verdicts on the other
claims. Finally, the Town conceded that all of the individ-
ual officers were acting within the scope of their em-
ployment during the altercation at the Duran home. This
concession amounted to a stipulation that the Town
Nos. 08-2467 & 08-2595 7
would be jointly and severally liable under principles of
respondeat superior for any judgment entered against
any individual officer on any of the state-law claims. But
the Town’s conceded vicarious liability extended even
further. Some of the plaintiffs were pursuing state-law
tort claims against unidentified officers—either alone or
in addition to their claims against specifically identified
officers. The Town accepted respondeat superior liability
for any torts committed by unnamed officers as well.
Understandably, the sheer enormity and factual com-
plexity of this case posed many challenges for the district
court. The parties tried to streamline presentation of the
case by providing a customized chart to serve as a refer-
ence for the jury throughout the trial. The chart listed
all the individual plaintiffs vertically on the left-hand
side and all of the claims horizontally across the top. If
a plaintiff made a specific claim against a particular
defendant, that defendant’s initials were written in the
appropriate box created by this grid. On this visual depic-
tion of the claims, many boxes on the chart contained
multiple initials and others were left completely blank.
For reasons unknown, although the Town’s liability
had been stipulated, one of the claims listed on the hori-
zontal axis of the grid was the “Town of Cicero Claim.”
The trial itself focused on the eyewitness testimony of
the plaintiffs and the police officers who were present at
the Duran home on the evening of the baptismal party.
The plaintiffs also presented two video recordings to the
jury. The first video—shot by Luis Castaneda, a profes-
sional videographer hired by the Durans to record the
8 Nos. 08-2467 & 08-2595
baptism and party—captured some of the initial alter-
cation, but its overall usefulness was limited by the
fact that it was confiscated by a police officer just
before the verbal confrontation turned physical. The
other video—shot by Onofre Barajas, a neighbor of the
Durans—displayed some of the physical altercation, but
its effectiveness was hampered by the poor quality of
the footage. The plaintiffs also claimed there was a third
video—one shot by Eduardo Gudino, another neighbor
of the Durans—that most fully corroborated their
account of police brutality. Gudino testified that when
the police noticed he was videotaping the altercation,
they chased him down, beat him, and forcibly confiscated
his camera and videotape. Although Castaneda’s video-
tape was returned, Gudino’s was not; these two tapes
formed the basis of the plaintiffs’ spoliation claim.
Gudino also filed a separate lawsuit based on the forcible
confiscation of his camera and videotape, which was
tried with the plaintiffs’ spoliation claim.
After six weeks of trial on all claims except those
relating to the confiscated videotapes, the case was sub-
mitted to the jury. The jury instructions were confusing
and the special-verdict form was flawed, for reasons we
will later explain. For now, it is enough to say that the
court submitted the claims against the Town to the jury
under an umbrella heading of “state law claims against
the Town of Cicero,” and the jury was asked to assess
damages separately against the Town—even though the
Town’s liability had been stipulated and was wholly
vicarious to that of the officers.
Nos. 08-2467 & 08-2595 9
The jury returned verdicts in favor of 23 of the 78 plain-
tiffs against some of the officers and the Town.
Judgment was entered on the verdicts, paving the way
for trial on the evidence-spoliation claims and Gudino’s
claim based on the forcible confiscation of his camera.
The defendants moved to exclude the confiscation of
Castaneda’s videotape from consideration as evidence
of spoliation; they argued that under Illinois law, pre-
venting the creation of evidence is not actionable as a
failure to preserve evidence. The court granted the motion,
which shortened this final phase of the proceedings.
Trial on the spoliation claim was completed in just a day,
and that evening the jury returned a verdict in favor of
Gudino and some of the plaintiffs.1
At this point the defendants noticed that the judg-
ment entered the previous day might impermissibly
allow some of the prevailing plaintiffs to secure a
double recovery. As we have noted, because the special-
verdict form asked the jury to award damages separately
against the Town and any officer found liable on any of
the state-law claims, the judgment reflected that 13 of
the plaintiffs received separate awards—against indi-
vidual police officers and the Town—for the same under-
lying injury. In an effort to prevent what it called “double
counting,” the Town timely filed a motion to amend
the judgments pursuant to Rule 59(e) of the Federal
Rules of Civil Procedure. The district court denied this
motion; the court said the Town had waived its argument
1
The judgment in favor of Gudino is not at issue on appeal.
10 Nos. 08-2467 & 08-2595
about joint and several liability. The Town appealed, and
the plaintiffs filed a cross-appeal challenging several of
the district court’s trial rulings.
II. Discussion
The Town’s appeal challenges only the district court’s
denial of its Rule 59(e) motion to amend the judgments.
The plaintiffs’ cross-appeal raises three issues. First,
the plaintiffs contend that the district court erred in
excluding the confiscation of the Castaneda videotape as
a basis for their evidence-spoliation claim under Illinois
law. They also object to the district court’s exclusion of
certain evidence regarding two of the defendant offi-
cers—specifically, prior complaints of misconduct filed
against Officer Dino Vitalo, and Officer William Peslak’s
unrelated civil-rights conviction under 18 U.S.C. § 242.
A. The Town’s Appeal
The Town renews the substance of its Rule 59(e) request
to amend the judgment to reflect that the Town and its
officers are jointly and severally liable for the damages
awarded to each plaintiff who prevailed on a state-
law claim. Resolving this issue requires us to identify
some fundamental missteps in the way these claims
were submitted to the jury.
From the beginning, the plaintiffs sought to hold the
Town liable on the state-law tort claims under the doctrine
of respondeat superior. That is, the Town would be
Nos. 08-2467 & 08-2595 11
vicariously liable for the torts of its officers if their
actions were undertaken within the scope of their em-
ployment. See Adames v. Sheahan, 909 N.E.2d 742, 754 (Ill.
2009). Before trial the Town stipulated that its officers
were acting within the scope of their employment
during the altercation at the Duran home. As a result
there were no factual issues for the jury to decide in con-
nection with the Town’s liability on the state tort
claims. Based on the scope-of-employment stipulation,
the Town would be liable to any plaintiff who prevailed
against an individual officer on any of the state tort
claims. This liability would be joint and several, not
cumulative; the Town and the individual officer would
be jointly and severally liable for whatever sum of
money the jury awarded as damages to compensate any
individual prevailing plaintiff for his injury. That is, if
any officer was found liable to an individual plaintiff,
the Town’s vicarious liability would flow as a matter of
law from its pretrial stipulation, but jointly and to the
extent of the officer’s liability, not for an additional
amount. Accordingly, the issue of the Town’s liability
should not have been submitted to the jury at all; once
the Town entered its stipulation on the scope-of-employ-
ment issue, its liability became solely a postverdict
legal matter for the court.
In Illinois, as elsewhere, a plaintiff may “receive only
one full compensation for his or her injuries, and double
recovery for the same injury is not allowed.” Thornton
v. Garcini, 928 N.E.2d 804, 811 (Ill. 2010). Although the
jury instructions alluded to this principle, they did so in
a way that sowed confusion, and this confusion was
12 Nos. 08-2467 & 08-2595
compounded by the special-verdict form. In relevant
part the jury was instructed as follows:
The defendant Town of Cicero is legally responsible
for the acts of its employees committed within the
scope of their employment. The town agrees that the
defendant police officers were acting within the
scope of their employment by the Town, and there-
fore, if you find in favor of a plaintiff and against any
of the defendant officers on any of the state law
claims, the amount of damages that you award the
plaintiff against that individual defendant should
also be awarded against the defendant Town. This
does not mean that the plaintiff would receive a double
recovery; it simply means that the individual defendant
and the Town would be jointly liable for the amount of
your verdict against the individual defendant.
(Emphasis added.). This instruction was perplexing. Why
was the jury being asked to assess damages against indi-
vidual officers and the Town for the same injury? The
jury was obviously confused. During deliberations, the
foreman sent the following question to the district judge:
Dear Judge—In awarding compensatory damages,
if we find in favor of the plaintiff under multiple
state law claims, is the town liable for half of the total
amount? Here’s an example of how we understand it:
Find in favor of Plaintiff A on State Law Claim #1
and State Law Claim #2. And we feel it should be a
total of $30. With us feeling that $20 on State Law
Claim #1 & $10 on State Law Claim #2, would we find
State Law Claim for Defendant Claim #1 ÿ $10 +
Nos. 08-2467 & 08-2595 13
Defendant on Claim #2 ÿ $5 + Town $15 = $30.
Thanks—The Jury. Jeffrey Hansen 2/14/08 11:40 a.m.
The judge responded by restating the instruction we
have just quoted, followed by this:
Now, let me turn to your specific question that you
wrote out. The answer is you return a verdict against
the town for $30, because that is the total of the two
amounts that you have returned for that plaintiff
against that defendant on two separate claims. You
don’t assess the town half of the amount. You assess
the town 100 percent of the amount.
And the town is jointly liable. It’s not liable in addition
to the individual defendants for the same amount
so that you guys could be talking about $60. No. It’s
only $30, but you have two defendants responsible
to pay it, one, the individual defendant, and two, the
town.
(Emphasis added.)
There are two problems with this approach. First, as
we have noted, once the Town conceded that its officers
were acting within the scope of their employment,
the Town’s liability on the state tort claims became a
postverdict legal issue for the court; the jury should not
have been asked to answer any questions about the Town’s
liability in the first place. Moreover, damages are not
assessed “by defendant” or “by claim” but “for” an injury.
See Thomas v. Cook Cnty. Sheriff’s Dep’t, 604 F.3d 293, 315-
16 (7th Cir. 2010) (Sykes, J., dissenting). Where a plaintiff
has suffered a single, indivisible injury (as is ordinarily
14 Nos. 08-2467 & 08-2595
the case and was true here on each of the state tort
claims), the jury’s task is to award a sum of money to
compensate the plaintiff for that injury, not to enter a
damages award against each defendant who is or will
be liable on the judgment. Id. Complicating an already
difficult case, here the jury was asked to determine dam-
ages on a defendant-by-defendant basis and also sep-
arately for the Town. This was error, and it led
directly to the problem of double recovery belatedly
identified by the Town.
It is true the Town itself proposed the flawed special-
verdict form. It is equally true, however, that every-
one—the court and all the parties—proceeded on the
understanding that the Town’s liability on the state-
law claims was vicarious only, and knew that the Town
would be jointly liable for the damages awarded to any
individual plaintiff on any of the state-law claims, not
for an additional amount. Thus, although the jury was
(mistakenly) instructed to enter separate damages
awards “against” individual officers and “against” the
Town, it was also told that the same amount awarded
against any individual officer should also be awarded
against the Town. The judge advised the jury that
this would not result in double recovery, but instead
the officer and the Town would be jointly liable for a
single damages award on each claim. No wonder the
jury was confused; on the matter of the Town’s liability,
it was asked to engage in a pointless enterprise.
Here are the resulting awards on the state-law claims:
Nos. 08-2467 & 08-2595 15
Compensatory Compensatory
Damages Damages
Awarded Awarded
Plaintiff
Against Against the
(Column A)
Individual Town
Officers (Column C)
(Column B)
Alejandro Duran $575,000 $675,000
Adolfo Duran $585,000 $585,000
Anna Maria Duran $100,000 $100,000
Gonzalo Duran $120,000 $120,000
Luz Maria Pineda $40,000 $40,000
Ignacio Rodriguez $100,000 $100,000
Javier Rodriguez $25,000 $25,000
Ruben Pineda $75,000 $100,000
Joel Uribe $25,000 $25,000
Heriberto Uribe, Sr. $25,000 $25,000
Juan Carlos Uribe $25,000 $25,000
Silvia Pineda $25,000 $25,000
Armando Duran $25,000 $25,000
Amada Duran — $40,000
Daniel Pineda — $15,000
Alma Rodriguez — $10,000
16 Nos. 08-2467 & 08-2595
Kathy Bonilla — $10,000
Maria Concepcion Duran — $100,000
Juana Maribel Escareno — $12,500
Jose Refugio Paredes — $25,000
Amanda Paredes — $10,000
Jose Paredes — $10,000
Juana Soto Uribe — $50,000
The dashes appearing in Column B reflect the state-law
claims against unidentified officers for injuries suffered
by the plaintiffs listed in Column A. (Recall that the
Town had accepted vicarious liability for the torts of the
unidentified officers when it stipulated that all of its
officers were acting in the scope of their employment.) The
proper way to submit the state-law claims to the jury
would have been to ask the liability questions first
using “John Doe Officer” or a similar designation to
determine the liability of the unnamed officers. Then
the jury should have been asked to enter a single
damages award to compensate each plaintiff for his or
her injury, not to enter separate damages awards
“against” each defendant—whether an individual officer
or the Town.
Although the verdict form was flawed, it appears that
the jury tried to comply with the court’s specific instruc-
tion that the amount awarded against any individual
officer should also be awarded against the Town. This
can be inferred from the fact that 11 of the 13 plaintiffs
Nos. 08-2467 & 08-2595 17
who had claims against identified officers (these 13 plain-
tiffs are listed in bold) received a compensatory-damages
award against an individual officer (Column B) and the
Town (Column C) in exactly the same amount. For two
of these plaintiffs, however, the award in Column C is
greater than the award in Column B. For example,
Alejandro Duran received a damages award of $550,000
on his malicious-prosecution claim against Officer
Michael McMahon and another $25,000 on his emotional-
distress claim against Officer Walter Wirack. This total
of $575,000 is reflected in Column B, yet the jury
awarded him $675,000 against the Town. The likely
explanation for this extra $100,000 is that the jury was
awarding compensation for a separate injury Alejandro
Duran suffered at the hands of an unidentified officer.2
Moreover, ten plaintiffs (the ones not listed in bold)
received damages awards against the Town despite not
having prevailed against an individually named officer.
Because the Town’s liability is derivative, the jury was
obviously compensating these ten plaintiffs on claims
for injuries they suffered at the hands of unidentified
officers.
Given the confusing verdict form and instructions,
the jury should be commended for managing as well as
it did. The judgment entered on the verdicts, however, did
not reflect the joint and several nature of the Town’s
liability. For example, on plaintiff Javier Rodriguez’s
2
Ruben Pineda was the only other plaintiff who received
a greater amount in Column C than in Column B.
18 Nos. 08-2467 & 08-2595
battery claim, the district court entered judgment in
favor of Rodriguez and against Officer Peslak in the
amount of $25,000, and in favor of Rodriguez against the
Town in the amount of $25,000, without any mention
that this liability is joint and several. This appears to
permit Rodriguez to recover twice—once from the Town
and once from Peslak—for the same injury.
A motion to alter or amend a judgment under Rule 59(e)
may be granted to correct a manifest error of law or fact.
Harrington v. City of Chicago, 433 F.3d 542, 546 (7th Cir.
2006). A judgment that can be read to allow a plaintiff
to recover twice for the same injury contains a manifest
error of law. The Town’s Rule 59(e) motion proposed
nothing more than an obvious fix for a glaring double-
recovery problem in the judgment.3
In denying the Rule 59(e) motion, the district court held
that the Town had waived any right to relief by not
objecting at trial to the verdict form or jury instructions
that gave rise to the confusing judgment. This waiver
rationale misses the point. True, the Town bears some
responsibility for the flawed special-verdict form. Still,
“it’s the judge’s responsibility to get the verdict form
right, not just pick one side’s proposal or the other’s.”
3
As an alternative, the Town might have filed a Rule 60(b)(5)
motion to account for the double-recovery problem. After
paying the $25,000 award to Javier Rodriguez (for example),
the Town might have filed a Rule 60(b)(5) motion for relief
from any further obligation to Rodriguez based on satisfaction
of the judgment.
Nos. 08-2467 & 08-2595 19
Thomas, 604 F.3d at 315 (Sykes, J., dissenting). In any
event, the Town’s Rule 59(e) motion was directed at a
legal error in the judgment (not the verdict form), and
here there can be no principled disagreement that the
judgment fails to reflect what everyone understood
from the beginning: that the Town would be jointly
liable (if liable at all) to any plaintiff who prevailed on
a state tort claim against an individual officer, whether
identified or unidentified. The Town did not waive
this legal point about the nature of its liability. The
Town’s timely Rule 59(e) motion identified a manifest
error of law that surfaced only after judgment was en-
tered. See Cnty. of McHenry v. Ins. Co. of the West, 438
F.3d 813, 819 (7th Cir. 2006).
Beyond defending the court’s misplaced waiver ratio-
nale, the plaintiffs advance one other argument for
leaving the judgment as is. They cite Zivitz v. Greenberg,
279 F.3d 536, 540 (7th Cir. 2002), for the proposition that
double recovery should not be presumed where the jury
could reasonably have based its verdict on separate
injuries sustained by the plaintiff. The plaintiffs suggest
that the jury might have intended all the awards listed
above in Column C to represent damages awarded to
the prevailing plaintiffs for torts committed by unidenti-
fied police officers. There is nothing in the record to
support this interpretation of the jury’s verdict. To the
contrary, the jury was specifically instructed that the
amount of damages it assessed against any individual
officer must also be assessed against the Town; we
assume that the jury followed this instruction. See Laxton
v. Bartow, 421 F.3d 565, 573 (7th Cir. 2005) (“We must
20 Nos. 08-2467 & 08-2595
presume that the jury followed all the instructions it
was given.”). The verdict reflects that the jurors
followed this guidance. The surest indication of this is
the fact that with two exceptions, every plaintiff who
received an award against an individual named officer
on a state-law claim (reflected in Column B) received
an award against the Town (reflected in Column C) in
an identical amount as that awarded against the
individual officer. Where the award against the Town is
higher, or where a plaintiff received an award against
the Town but not an individual officer, the logical
inference is that the difference reflects compensation for
an injury inflicted by an unidentified officer. Given
how this case was submitted to the jury, this is the only
sensible way to interpret the verdict.
In sum, it is reasonably clear what the jury did—or at
least what it was trying to do. And it is abundantly clear
that the judgment must be amended to avoid the possi-
bility of double recovery. On remand the court should
clarify that the damages the jury assessed against the
Town and the individual officers are not to be
aggregated; the judgment should reflect that the Town
is jointly liable for a single damages award in favor of
each plaintiff who prevailed on a state-law claim.
B. Plaintiffs’ Cross-Appeal
In their cross-appeal the plaintiffs challenge three
rulings the district court made during trial: (1) the court’s
decision to exclude the Castaneda videotape as a basis
for the evidence-spoliation claim; (2) the exclusion of
Nos. 08-2467 & 08-2595 21
misconduct complaints against Officer Vitalo under
Rule 404(b); and (3) the exclusion of Officer Peslak’s
unrelated civil-rights conviction. We address each of
these rulings in turn.
1. Spoliation of Evidence
After the jury returned its verdict on the federal civil-
rights claims and most of the state tort claims, the plain-
tiffs were then in a position to proceed with their cause
of action for spoliation of evidence. Because some of the
defendants prevailed on claims that arguably could have
gone the other way, the plaintiffs could argue that the
result might have been different had certain evidence
not been destroyed. They were allowed to argue that the
disappearance of the allegedly incriminating videotape
shot by Eduardo Gudino (the Durans’ neighbor) and
confiscated by the officers was actionable as tortious
spoliation of evidence. However, they also sought to
include the video taken by Luis Castaneda as part of
their spoliation claim. Castaneda, it will be remembered,
was the professional videographer hired by the Durans
to record the baptism and party. The plaintiffs alleged
that Castaneda was wrongfully forced to turn over
his video camera to the police just before the officers
deployed pepper spray, escalating what had been a
verbal altercation into a physical one. They wanted to
argue that had Castaneda’s camera not been confiscated,
he would have recorded this pepper-spray incident and
everything that happened afterward.
22 Nos. 08-2467 & 08-2595
The district court held that the confiscation of
Castaneda’s camera and videotape was not evidence of
spoliation because it did not involve the destruction of
or failure to preserve evidence; at most Castaneda was
prevented from creating what might have become evi-
dence. This ruling was manifestly correct. Under Illinois
law spoilation of evidence is treated as a negligence
action. Boyd v. Travelers Ins. Co., 652 N.E.2d 267, 270-71
(Ill. 1995). The Supreme Court of Illinois has explained:
The general rule is that there is no duty to preserve
evidence; however, a duty to preserve evidence may
arise through an agreement, a contract, a statute . . . or
another special circumstance. Moreover, a defendant
may voluntarily assume a duty by affirmative con-
duct. In any of the foregoing instances, a de-
fendant owes a duty of due care to preserve evidence
if a reasonable person in the defendant’s position
should have foreseen that the evidence was material
to a potential civil action.
Id. at 270-71 (citations omitted).
Actionable spoliation thus occurs only when the duty
to preserve existing evidence has been breached. Here,
although the police seized the Castaneda videotape, they
returned it unaltered. That they interrupted Castaneda’s
filming is not evidence of spoliation; Illinois does not
recognize a spoliation claim based on evidence not yet
in existence. In contrast, Gudino’s videotape was not
returned and therefore was properly considered as a
basis for the plaintiffs’ spoliation claim.
Nos. 08-2467 & 08-2595 23
2. Officer Vitalo
Officer Vitalo was implicated in several claims brought
by three of the plaintiffs. Specifically, Daniel Pineda
brought a federal excessive-force claim against Vitalo, as
well as state-law claims for battery, hate crimes, and
intentional infliction of emotional distress. Alejandro
Duran likewise alleged that Vitalo used excessive force
and violated his right to equal protection, and also
asserted state-law claims for battery, hate crimes, and
intentional infliction of emotional distress. Finally,
Gonzalo Duran alleged state-law claims against Vitalo
for malicious prosecution, battery, and intentional in-
fliction of emotion distress. These plaintiffs sought
to introduce four misconduct complaints from the mid-
1990s accusing Vitalo of verbally abusing minorities,
engaging in excessive force, committing false arrest, and
falsifying police reports. The plaintiffs argued that
these complaints were admissible under Rule 404(b) as
evidence of Vitalo’s bias, motive, and intent to harass and
harm Latinos. The district court excluded this evidence.
We review evidentiary rulings for abuse of discretion.
Manuel v. City of Chicago, 335 F.3d 592, 595 (7th Cir. 2003).
Under Rule 404(b), evidence of other crimes, wrongs, or
acts is inadmissible to show propensity, but may be
admissible for other purposes, “such as proof of motive,
opportunity, intent, preparation, plan, knowledge,
identity, . . . absence of mistake or accident,” or other
relevant, nonpropensity purposes. The admissibility
of prior bad acts under Rule 404(b) turns on an evalua-
tion of the following factors:
24 Nos. 08-2467 & 08-2595
(1) the evidence is directed toward establishing a
matter in issue other than the defendant’s propensity
to commit the crime charged; (2) the evidence
shows that the other act is similar enough and close
enough in time to be relevant to the matter in issue;
(3) the evidence is sufficient to support a jury
finding that the defendant committed the similar act;
and (4) the probative value of the evidence is not
outweighed by the danger of unfair prejudice.
Treece v. Hochstetler, 213 F.3d 360, 363 (7th Cir. 2000)
(quotation marks omitted).
Vitalo moved in limine to prohibit the introduction of
the misconduct complaints, arguing that they were not
relevant and were too remote, and also that their prejudi-
cial effect would substantially outweigh any possible
probative value. The district court apparently agreed;
the judge granted this motion without comment. During
the course of the trial, however, the plaintiffs asked the
judge to revisit this ruling. They argued that Vitalo
opened the door to the introduction of this evidence
based on the way he presented his defense to the jury.
First, during Vitalo’s testimony, his attorney asked him
if he “ever use[d] a racial slur toward any of the party
goers” on the night of the Durans’ party. Vitalo replied,
“Absolutely not. I would never do anything like that.”
Later during that same examination, Vitalo’s attorney
asked, “What’s your wife[’s] ethnicity?” Vitalo responded,
“She’s half Mexican, sir.”
This line of questioning was obviously designed to
portray Vitalo as tolerant of minorities, so the plaintiffs
Nos. 08-2467 & 08-2595 25
asked the judge to reconsider his decision to exclude
the misconduct complaints under Rule 404(b). The
judge again declined to admit the evidence, saying
that “the danger of confusion and of unfair prejudice to
the other defendants would outweigh the probative
value as to the defendant Vitalo.”
The district court has substantial leeway in conducting
the Rule 404(b) analysis, and especially in weighing
the possibility of prejudice against the probative value
of the evidence. “The balancing of probative value and
prejudice is a highly discretionary assessment, and we
accord the district court’s decision great deference, only
disturbing it if no reasonable person could agree with
the ruling.” Manuel, 335 F.3d at 596 (quotation marks
omitted). While Vitalo’s testimony arguably opened the
door for admission of the misconduct complaints, “the
Rules of Evidence do not simply evaporate when one
party opens the door on an issue.” Id. at 597 (quotation
marks omitted). The district court was required to
balance the probative value of the long-ago complaints
against the prejudicial effect of this evidence; we
generally do not second-guess this kind of ruling. This
was a very complicated case, with many claims,
plaintiffs, and defendants. The introduction of several
old, unrelated misconduct complaints against a single
officer risked creating a sideshow and sending the trial
off track. Furthermore, because the misconduct com-
plaints involved allegations of physical and verbal abuse
by Vitalo, there was potential for prejudicial “spillover”
effect on all the defendants. The judge did not abuse
his discretion by maintaining his original ruling.
26 Nos. 08-2467 & 08-2595
3. Officer Peslak
Several of the federal and state claims were aimed at
Officer Peslak, who had an unrelated criminal conviction
for a civil-rights violation under 18 U.S.C. § 242, which
provides, in relevant part, that
[w]hoever, under color of any law, statute, ordinance,
regulation, or custom, willfully subjects any person . . .
to the deprivation of any rights, privileges, or im-
munities secured or protected by the Constitution
or laws of the United States . . . shall be fined under
this title or imprisoned not more than one year, or
both; and if bodily injury results from the acts com-
mitted in violation of this section[,] . . . shall be fined
under this title or imprisoned not more than ten years,
or both . . . .
The criminal charge against Peslak arose out of an
August 8, 2003 traffic stop. The transcript of Peslak’s
guilty-plea proceeding reflects that Peslak admitted to
grabbing the driver of the car “by the back of the head
and hit[ting] his head forcefully against the part of
the car where the roof and the top of the door come
together.” The driver suffered a cut on his right eyebrow
that required five stitches to close. Peslak pleaded guilty
to one count of using excessive force under color of
state law in violation of § 242. He was sentenced to a five-
month jail term. Peslak’s codefendant in the case,
Officer Joseph DeKiel, also pleaded guilty; he said in his
own plea agreement that Peslak falsified a police report
to indicate that DeKiel was at the scene of this incident
when in fact he was not. DeKiel also admitted that at
Nos. 08-2467 & 08-2595 27
Peslak’s urging, he had testified falsely to corroborate
this report.
Peslak moved in limine to exclude evidence of this
conviction as unfairly prejudicial. The plaintiffs re-
sponded that the conviction was admissible under
Rule 609 of the Federal Rules of Evidence but never
specified which subsection they were relying on. Rule
609(a)(1) provides that “evidence that a witness other
than an accused has been convicted of a crime shall be
admitted, subject to Rule 403, if the crime was punishable
by death or imprisonment in excess of one year.” Rule
609(a)(2) provides that “evidence that any witness has
been convicted of a crime shall be admitted regardless
of the punishment, if it readily can be determined that
establishing the elements of the crime required proof
or admission of an act of dishonesty or false statement
by the witness.”
The plaintiffs seemed to argue that evidence of Peslak’s
conviction was admissible under either Rule 609(a)(1)
or Rule 609(a)(2). On one hand, they observed that
Peslak’s plea agreement acknowledged that Peslak
inflicted bodily injury on his victim (a cut on the eye-
brow), and so Peslak’s crime was punishable by up to
ten years. See 18 U.S.C. § 242. But they also argued
that Peslak’s crime involved acts of dishonesty, which
sounds like an argument for admissibility under
Rule 609(a)(2).
The district court granted Peslak’s motion to exclude
his civil-rights conviction in an omnibus order that
covered many other evidentiary issues. The judge made
28 Nos. 08-2467 & 08-2595
it clear, however, that this ruling was tentative. The
order specifically explained that “[d]uring the course of
the trial, the parties may move to reconsider any of
these rulings if they believe the evidence warrants re-
consideration.”
We have held that where the district court makes a
tentative or conditional evidentiary ruling before trial, the
adversely affected party must renew its objection at trial
in order to preserve the issue for appeal. See Wilson v.
Williams, 182 F.3d 562, 565-66 (7th Cir. 1999) (en banc). The
plaintiffs did raise the issue of Peslak’s conviction at
trial, but only argued that it was admissible as a crime
of dishonesty. Any argument that Peslak’s conviction
was admissible under Rule 609(a)(1) is therefore for-
feited.4 The district court properly excluded evidence of
Peslak’s conviction under Rule 609(a)(2) because the
elements of his crime did not include acts of dishonesty
or false statements. Although his codefendant’s plea
colloquy suggests that the two participated in a cover-up,
Peslak was convicted of using excessive force under
color of state law in violation of § 242, a crime that did
not involve acts of dishonesty or false statements.5
4
The plaintiffs do not advance a plain-error argument on
this point.
5
There is one final point on this issue. During trial, plaintiffs
conducted an examination of Peslak outside the jury’s presence
with the intention of using Peslak’s own testimony about this
incident as prior-acts evidence under Rule 404(b). Plaintiffs’
(continued...)
Nos. 08-2467 & 08-2595 29
For the foregoing reasons, we V ACATE the judgment
and R EMAND the case to the district court with instruc-
5
(...continued)
counsel asked Peslak if it was true that he prepared false
police reports in connection with the incident. At this point
Peslak’s counsel objected, and the district court put an end
to the examination because the plaintiffs’ question could have
compromised Peslak’s Fifth Amendment right regarding self-
incrimination. The plaintiffs now contend that Peslak’s rights
under the Fifth Amendment were not implicated by this
line of questioning.
“To be privileged by the Fifth Amendment to refuse to answer
a question, the answer one would give if one did answer it (and
answer it truthfully) must have some tendency to subject the
person being asked the question to criminal liability.” In re
High Fructose Corn Syrup Antitrust Litig., 295 F.3d 651, 663-64
(7th Cir. 2002). Here, Peslak was being asked to affirm that he
had prepared false police reports. Among other things, an
admission of filing false police reports can give rise to an
obstruction-of-justice charge under 18 U.S.C. § 1512(b)(3), see,
e.g., United States v. Carson, 560 F.3d 566, 573 (6th Cir. 2009), or
a similar state offense. The plaintiffs assert that Peslak could not
have faced liability for any such admission because he was
already serving time on the underlying civil-rights conviction.
But Peslak pleaded guilty to a civil-rights violation under § 242,
not any additional charge of obstruction. On appeal the plain-
tiffs do not cite anything in the record that suggests that Peslak’s
plea agreement prevented him from later being prosecuted
for filing false police reports. Accordingly, we find no fault
with the district court’s decision to halt this line of inquiry to
protect Peslak’s Fifth Amendment right against self-incrim-
ination.
30 Nos. 08-2467 & 08-2595
tions to issue an amended judgment consistent with
this opinion. In all other respects, we A FFIRM .
8-9-11