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IN THE UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DONNA MOORE, as legalcustodian of her son, J.M., aminor, and her daughter, A.M.,a minor,
Plaintiffs,
vs.
ROBERT SMITH, JAMES EVITT,CITY OF CHICAGO, STACEY SMITH,
and EDWIN GORMAN,Defendants.
)))))))))))
)))
No. 07 C 5908Chicago, IllinoisMarch 4, 20099:15 a.m.
TRANSCRIPT OF PROCEEDINGS - MOTION
BEFORE THE HONORABLE ROBERT W. GETTLEMAN
APPEARANCES:
For the Plaintiff: PEOPLE'S LAW OFFICE1180 North Milwaukee Avenue
Chicago, Illinois 60622BY: MR. G. FLINT TAYLOR, JR.MR. BENJAMIN H. ELSON
For Defendant City: DYKEMA GOSSETT PLLC10 South Wacker DriveSuite 2300Chicago, Illinois 60606BY: MR. TERRENCE M. BURNS
MR. DANIEL M. NOLAND
For Defendant City: CITY OF CHICAGO
30 North LaSalle StreetChicago, Illinois 60602BY: MS. RITA C. O'CONNOR
Official Reporter: JENNIFER S. COSTALES, CRR, RMR219 South Dearborn StreetRoom 1706Chicago, Illinois 60604(312) 427-5351
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(Proceedings in open court.)
THE CLERK: 07 C 5908, Donna Moore versus Officer Smith,
motion for sanctions, motion to supplement.MR. BURNS: Good morning, Your Honor.
Terrence Burns and Daniel Nolan appearing on behalf of
the City of Chicago.
MS. O'CONNOR: Rita O'Connor on behalf of the City.
MR. TAYLOR: Good morning, Judge.
Flint Taylor and Ben Elson on behalf of the plaintiff.This is our motion or motions, Judge. It's a motion for
sanctions and also a motion to supplement.
THE COURT: Well, I'll grant the motion to supplement.
Mr. Burns has already supplemented. I got it very late
yesterday, I got a pleading from him, which I've reviewed this
morning.Well, is there anything you want to add, Mr. Taylor?
MR. TAYLOR: Well, Judge, I take it that you've read our
motion, and I don't need to rehash what are both our factual
predicate and our relief that we seek is. We're seeking
sanctions as we've both illuminated in the motion for an
eight-month pattern of delay and obstruction that culminated inthe direct and now admitted defiance of orders by this Court and
by Judge Valdez by the city itself and by its chief policy-making
police official, Mr. Weis.
We think that we've made out in the pleading bad faith.
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The Seventh Circuit has said deliberate defiance of an order
itself is bad faith. But we feel that also the false
representations to counsel, us, and to the Court, Judge Valdezparticularly, over a period of time that the City would comply if
and when all of these various motions to reconsider had been
dealt with, and then, in fact, they had no intention apparently
of doing so, as soon as they reached the end of the line, they
filed the Weis document which, in fact, said: Thanks, but no
thanks, we will not comply.I think also the bad faith is shown, Judge, by the
transparent and often rejected reason posited by the chief of
police and the City previously, that being the fact of privacy,
safety, and morale, Judge. You rejected on a couple of
occasions, Judge Valdez rejected it on a couple of occasions, and
then Mr. Weis brought it in again.I think this is a simple two-word answer that the Court
gave for that, and that was protective order. They make a big
deal about how this is somehow going to bother morale, it's going
to bother safety, when, in fact, the documents are being turned
over to us, not turned over to the public. The Court recognized
that last time we were in court here. So that's an argumentthat's very transparent. It's one that shouldn't have been
repeated, and certainly shouldn't be the basis for a contemptuous
activity by Mr. Weis.
And I also want to say, Judge, that they attempt to put
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us in a bag that the only reason that we want these documents is
so we can check them with prior lists so that we can see if there
is a repeater that perhaps spans 10, 15, 20 years. But as weargued from the beginning, and as Judge Valdez found in her
order, I believe her October order, that that was only one of
several reasons why we need these documents.
Obviously we want to do case histories. We want to
study the worst repeaters. Judge, we're talking about repeaters,
if I might, they did give us lists without names, we're talkingabout ones with 65 CRs. We're talking about ones with 62 CRs and
14 excessive force; 44 CRs, 20 excessive force. I can go right
down the list.
And we're talking about, Judge, a list not of thousands
of officers that have six or more excessive force complaints, 199
officers are on that list. And we're talking about, Judge, thegreater list that they gave us of the six or more that have --
that aren't limited to excessive force. We're talking about 2500
officers. So then we have 11,000 officers that aren't on those
lists, Judge.
And, in fact, the reason that we picked that amount of
officers, of complaints was because that's the amount that theCity always looked at when they were evaluating repeaters. That
doesn't mean that we're going to deal with or care about 2500
repeaters. But we have to find the worst in that, not only in
numbers but in what they did.
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If we don't have their names, we can't look at their
backgrounds in terms of civil suits. We can't look at who their
partners are. We can't look at the sustained, not sustained,what the police board did. All of those things, Judge, require
that we get the names. And as you pointed out, in the past,
we've never had a problem with it, and we don't intend to have a
problem with it with these lists either.
And so as Judge Valdez recognized, and she used the term
"repeater" as well, it's for the jury, the experts, and theplaintiffs' lawyers to determine among those on the list who are
the ones that are the worst of the worst. And that's the ones
that we're concerned with. Those are the ones we want to show
they were not properly disciplined. And that's why it's so
important to our case and to our Monell claim.
And that's why, Judge, we've asked for the sanctionsthat we've asked for. We've asked for the sanction of finding of
the various allegations we've made in our complaint with regard
to Monell as admitted. We've asked that based on those findings
that default be entered on the City on that claim. We've asked
that there be certain monetary sanctions to pay us for these
eight to ten months of going around the merry-go-round again andagain and again and again and again hearing the same arguments
and dealing with them. We've asked for it to be enhanced as a
punishment. And we've also asked for discovery on the issue of
bad faith, because the City has not, in fact, conceded, and that
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discovery would include the deposition of Jodi Weis.
Finally, Judge, I would point to the fact that the City
itself cites a case, and the case says there is three things tolook at for sanctions: Prejudice, deterrence, and punishment.
Prejudice, I think it's obvious. We've spent ten
months, we've spent hundreds of hours chasing this evidence that
should have been ours from the beginning. You look at 20 years
of history, Judge, and each time we've sought this evidence, the
City has turned it over until this time. And they then playedgames with us for eight to ten months before they then took the
position in court that they took.
Secondly, as the City points out in the Seventh Circuit
case, deterrence, and the third is punishment, well, Judge, in
both of those instances, we're not talking about some individual
litigant here who comes before the Court once. We're talkingabout the City of Chicago. We're talking about the police chief.
And we're talking about the Corporation Counsel of the City of
Chicago.
There are other cases, important cases before Judge
Shadur, before other judges in this courtroom where similar
issues are being litigated. If the City is allowed to get awaywithout sanctions in this case, there will be no deterrence to
the City in other cases.
And as well in terms of punishment, in terms of
punishment, Judge, there has to be some recrimination for this
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has been consistently from the beginning to this point in time a
statement as to why we feel the names of the officers become
irrelevant.The fact is as I listened to counsel's argument, he
seemed to be saying that very thing, "I don't need 10,000 names.
I just need a select number," something that we have offered to
him throughout the discovery. We would sit down, work with him
in terms of the disclosure.
I should also point out, Your Honor, we have, in fact,provided those names, albeit in redacted fashion where we
separate the names of the officers. But we've also held out to
counsel that we would sit down and work with him with regard to
certain names that appeared on prior lists and now reappear on
the current list to try to come to some resolution so he would
not be prejudiced in the prosecution of this case.In terms of this case, it seems as though that counsel
is asking for extreme remedies. When you seek to look what is
the prejudice to him, how is this defeating his opportunity to
present his claim, he has the statistical information. We talked
about that when we were before you on the last time, so I won't
repeat that information to the Court. But that's informationthat he does have, is available.
If there is something further beyond that, we're going
to work with him, and we can work together. But, again, as I
heard the argument today, those additional names of people who
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have nothing to do with this case, are not of central concern,
why are we disclosing their names? It becomes irrelevant to the
prosecution at hand.We have always indicated to counsel that we would work
with him and try to resolve this. This is something when we come
to the Court, I recognize the Court's position, we ask that the
sanctions, whatever the Court is considering, that they not be
extreme. And I think the citations that counsel has suggested
are extreme given the nature of what's occurred.Keeping in mind that this is not as he's suggested a
fabricated or manufactured suggestion to the Court, the
Superintendent would not, he has tremendous regard for this
Court, and law enforcement would not come before the Court
without a legitimate reason and express the view that it did.
When this happened, we immediately filed with this Courtthe statement from the Superintendent as to his basis and his
reason. And those were in good faith. They have been in good
faith. They have been consistent throughout the pendency of this
litigation, Your Honor.
I ask the Court to consider that as well as the other
factors that are raised throughout the process.While counsel can ridicule the Superintendent, call it
transparent, belittle what his reasoning is, his reasons are
legitimate. They are privacy, morale, and safety concerns that
he raised via his declaration and the recent statement to the
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Court.
THE COURT: Mr. Burns, let me just -- I don't need a
reply -- let me just tell you a couple of things. First of all,you know we've had a history together. You've appeared in many
cases and done a fine job, and I respect your professionalism and
your competence. It has nothing to do with you.
But everything you just said is almost irrelevant. That
horse is out of the barn. Those issues have been decided. You
yourself acknowledged that you'd be producing the documents, thisis on February 17th, that you were ready to do so, that you had
them. You'd been ordered to do so. And you said you'll abide by
whatever decision I make on the motion.
This is basically a fourth motion to reconsider Judge
Valdez's ruling. I've reconfirmed it now three times. I'm
reconfirming it again.The document that you filed on behalf of the City, I
mean, you have some explaining to do about why you said, made a
representation to the Court which apparently was incorrect,
that's number one. Number two, your statement, the statement
that Jodi Weis -- is it Weis or Weis?
MR. BURNS: Weis.THE COURT: -- Weis and his affidavit filed with the
Court, document number 184 on February 20th, is basically in my
view a direct contempt of the Court. It's not even an indirect
contempt.
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I know that Mr. Taylor hasn't asked for a finding of
contempt. He doesn't have to. I believe it's the Court's
responsibility, regardless of the civil sanctions that may beimposed in this case or any other, to protect the integrity of
its orders. And this is, it's more than flaunting the order,
it's saying I am going to be in contempt of the Court.
If this is some strategy to get a discovery order, and I
agree with Mr. Taylor, a rather routine discovery order given the
history of this type of litigation in this court, to be reviewedby the Court of Appeals, it is ill advised in my view.
We have the chief law enforcement officer of the City of
Chicago basically picking and choosing the orders of the federal
court that he will obey or disobey, and he's chosen to disobey
this order. I believe he is in direct contempt of the Court.
It's not even a rule to show cause situation, because he has toldme he will not obey the order of the Court to turn over these
documents, which as Mr. Taylor points out are very much or
identical to the type of documents that he has turned over, that
the City of Chicago has turned over on at least 29 occasions that
you know of and probably more and that we've dealt with before.
I don't care whether your sensitivities about the namecalling that you accuse the plaintiffs' lawyers of doing might
somehow hurt morale. I don't know how that happens. There is a
lot worse names that are leveled at the police in this City than
"repeater." But even crediting Mr. Weis with a good-faith belief
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that this would hurt morale, it's his job to deal with his own
officers.
And I respect the police department in this City, and Irespect Mr. Weis's job, it's a tough job. But it makes it a lot
tougher when he comes into a federal court and says "I'm not
going to obey your order."
You've made your arguments. You've made them repeated
times. The Court has considered them repeatedly. I have
considered them. Judge Valdez has considered them. You reach apoint, just like you acknowledged to Judge Valdez, you know, if I
deny the motion to reconsider, that's it, that's the end of the
game, and we'll turn them over.
All I can assume is that your client didn't agree with
the advice you gave him. So I think I have to do this, I have to
compel compliance with that order. That's my first job before Ieven deal with the appropriate sanctions, and there will be
sanctions, civil sanctions.
But before I deal with that, he is in direct civil
contempt of this Court, and it's my job, just as when other
people on matters of principle, misguided or otherwise, disobey
orders of the Court, we are to take measured steps to enforce theorders before deciding on what type of sanctions to apply.
I am, therefore, directing that the Superintendent be
present in court at 9:00 o'clock on Friday morning so that he can
at least address the Court in person to explain himself to me.
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He has filed an affidavit.
Mr. Taylor wants discovery. I don't know if you need
any discovery. His position is pretty clear.But that affidavit absolutely subjects him to
examination about why he reached those conclusions. I could
order discovery, I think it's just prolonging a very serious
situation and a conflict between the City and the Court that the
Court is going to win. I mean, there is no question about this.
To reargue the merits of this discovery dispute isinappropriate at this time. The order is the order. I'm not
reconsidering it. You have nothing to negotiate with Mr. Taylor
about how to comply with it. You have to comply with it.
So I want the superintendent here at 9:00 o'clock on
Friday morning in person to address the Court.
MR. TAYLOR: Judge, could I ask that it be Monday? I'min Champaign on a deposition. I would very much like to be here.
THE COURT: Well, I want you to be here, too.
MR. TAYLOR: Monday at 9:00 o'clock, would that be all
right?
THE COURT: I'm on trial. But the trial won't begin
until, we usually start at 10:00. So I'm not going to postponethe trial for this. We don't go on Fridays, so that's why Friday
was easier for me.
MR. TAYLOR: I'm really --
THE COURT: Pardon me?
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MR. TAYLOR: I'm really sorry, but I don't think I can
change it. It's very important. A defendant is giving a
deposition.THE COURT: We'll make it Monday at 8:45 so that we have
time enough to do this before we start the trial on that day.
I don't want any more papers. I don't need any more
papers in this case. But I want him here.
I know you've asked for sanctions or you've hinted that
you wanted to ask questions of the Corporation Counsel,Ms. Georges. She's acting as a lawyer whether of record or not,
she probably is of record, and I think that her advice to the
superintendent would be privileged anyway, and I don't think it
will be appropriate. If she's giving him advice, he's the one
who is in contempt, not her. I don't think it would be
appropriate to examine her, unless she's willing to waive theprivilege somehow.
But this is obviously a very serious matter. I don't
want you, Mr. Burns, to be hanging out there the way you are in a
sense, because you made this representation to the Court, and I'm
sure you made it in good faith. But right now I think the only
thing for me to do is to see whether or not I can compelcompliance with this order, and if not, then determine what type
of sanctions to impose both in the civil case itself and by the
Court to compel compliance. So that's what is going to happen.
I'm going to enter and continue, well, your motion to
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supplement is granted. I'll accept your latest filing, which is
document 193, response in opposition.
I don't know whether you want to file a reply. I don'tthink I need one.
MR. TAYLOR: No, I don't think so, Judge. I think that
everything has been aired.
THE COURT: I'll accept that as a response to your
motion. And I'll see you at 8:45 on Monday, March 9th.
MR. TAYLOR: Judge, is it our understanding that youhave held him in contempt or not until you hear from him?
THE COURT: I'm making an observation, because if he
comes in and purges himself of the contempt, then there would not
be a need for a holding.
MR. TAYLOR: Right.
THE COURT: I'm giving him until Monday to do so.MR. TAYLOR: To purge?
THE COURT: Otherwise I think ordinarily if you have a
discovery dispute or, you know, some sort of conflict with an
order, if you've ordered an audit in a collection case or
something like that, and they don't comply, you have a rule to
show cause, because you haven't heard directly from the potentialcontemnor.
In this case I've heard twice now. I have two pleadings
on the record, including an affidavit from the Superintendent
saying that he will not obey an order. I think that's direct
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contempt of Court as if he were standing here and said that.
So I don't know, this is not really a rule to show cause
proceeding. It's a contempt proceeding. And an order ofcontempt will be entered, unless he purges himself of the
contempt on that day.
Very frankly, I think you, Mr. Burns, and Ms. Georges
and everybody else involved with this should take a deep breath
and a step back and try to avoid this type of consequence in a
case like this, which is a fairly routine excessive force case.None of them are totally routine, of course. They're all
important. But in this case, I don't see using this case as a
vehicle to try to test the enforceability of orders of this
Court.
That's all I'm going to say right now, and I'll see you
back here on Monday at 8:45.MR. TAYLOR: Thank you, Judge.
MR. BURNS: Thank you, Your Honor.
(Proceedings concluded.)
C E R T I F I C A T EI, Jennifer S. Costales, do hereby certify that the
foregoing is a complete, true, and accurate transcript of theproceedings had in the above-entitled case before the Honorable
ROBERT W. GETTLEMAN, one of the judges of said Court, at Chicago,Illinois, on March 4, 2009.
/s/ Jennifer Costales, CRR, RMROfficial Court ReporterUnited States District CourtNorthern District of IllinoisEastern Division