Kunz, Jeremy v. City of Chicago ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 06-3827 & 06-3828
JEREMY KUNZ,
Plaintiff-Appellee/
Cross-Appellant,
v.
RICHARD DEFELICE,
Defendant-Appellant/
Cross-Appellee,
and
CITY OF CHICAGO, et al.,
Defendants/Cross-Appellees.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 C 1753—James B. Zagel, Judge.
____________
ARGUED NOVEMBER 28, 2007—DECIDED AUGUST 14, 2008
____________
Before EASTERBROOK, Chief Judge, and FLAUM and WOOD,
Circuit Judges.
WOOD, Circuit Judge. On March 22, 1999, Jeremy Kunz
spent the afternoon and evening in a bar watching
2 Nos. 06-3827 & 06-3828
March Madness and consuming a few Guinnesses. As the
night wore on, he asked a fellow he knew from the bar,
Erik, if he could borrow Erik’s SUV for a short time. Erik
handed over the keys to his vehicle, and Kunz left on his
errand. The events relating to the rest of the evening
gave rise to a low-speed car chase, a brutal interrogation,
and a lawsuit against the City of Chicago and certain
police officers. Kunz prevailed in that litigation, winning
jury verdicts against Officer DeFelice for $10,000 in com-
pensatory damages and $250,000 (later reduced to
$90,000) in punitive damages, as well as a verdict against
the City for another $15,000 in compensatory damages. The
City and DeFelice appeal from those judgments, and
Kunz cross-appeals from the district court’s grant of
summary judgment in the defendants’ favor on several
other counts.
In the end, we find that the evidentiary arguments on
which DeFelice relies fail to show any abuse of discretion
by the district court, much less the prejudice that would
be necessary to upset the jury’s verdict. With respect to
the cross-appeal, we conclude that Kunz’s additional
theories were properly dismissed. We therefore affirm
the district court’s judgment in its entirety.
I
After Kunz left on his errand—which turned out to be
the delivery of some drugs—he grazed a parked car and
kept driving. His actions prompted a 911 call from a
witness; Officer DeFelice and his partner responded.
Despite the flashing lights on the police car, Kunz kept
driving, with the police in pursuit. DeFelice discovered,
after running the SUV’s plates, that it had been reported
stolen. When Kunz finally stopped the car, he got out and
Nos. 06-3827 & 06-3828 3
tried to flee on foot. Throughout this time, he was trying
to toss the packets of drugs away from himself. The
chase ended after Kunz tried scaling a chain-link fence.
Cornered at the top, he was ordered back to the ground
and cuffed.
As he was being handcuffed, multiple police officers
kicked Kunz, eventually causing a sharp pain later diag-
nosed as a broken rib. The police then dragged the
injured and restrained Kunz to their squad car and took
him back to the station, where they placed him in a
room on a stool, still cuffed and facing DeFelice. DeFelice
repeatedly punched Kunz in the face hard enough to
make him pass out several times. Finally, Kunz falsely
confessed that he knew that the car he was driving was
stolen. Another officer, who had watched the entire
exchange, typed out the confession. Kunz was then photo-
graphed and taken to the lock-up. He complained of
injuries but was not taken until the next afternoon to a
hospital, where he was given a non-prescription pain-
killer. A visit to an emergency room the day after that
resulted in a prescription for Motrin.
As a result of this incident, Kunz was charged with
possession of a stolen motor vehicle, aggravated flight,
and leaving the scene of an accident. Four days after his
arrest, he was returned to custody for violating a bail
bond on an older retail theft charge; he chose to exonerate
his bond and remain in custody so that the money could
be returned to his mother. While he was in jail awaiting
trial on the stolen vehicle charge, he and a high-school
age co-defendant were charged with possession of a
controlled substance based on an unrelated incident.
Distressed by the aftermath of Kunz’s arrest, Kunz’s
mother filed a complaint on his behalf with Chicago’s
4 Nos. 06-3827 & 06-3828
Office of Professional Standards (OPS) on April 13,
1999, and OPS began to look into the matter. Even though
OPS inquiries ordinarily take 30 days to complete, this
one dragged on. Kunz requested the file in October 1999
in order to defend against the stolen motor vehicle
charge and was told in November that the investigation
was still active. OPS never did turn over the whole file,
despite numerous requests and subpoenas.
On June 19, 2000, as the state court’s patience with the
slow discovery was wearing thin, the state’s attorney
elected to forgo the charge of possession of a stolen
motor vehicle in favor of the charge for possession of a
controlled substance. The reason given for the change
in strategy was the need to expedite trial for the
younger co-defendant, but at the hearing the prosecutor
mentioned that the “[OPS] investigation” was “reaching [a]
dead end . . . .” Kunz was convicted on the controlled
substances charge and was sentenced on November 15,
2000. At the sentencing, Kunz’s past convictions were
introduced as aggravating factors, as was the possession
of a stolen motor vehicle charge (describing the facts from
the police report plus Kunz’s confession). Kunz was
sentenced to time served, and the State dismissed the
stolen motor vehicle charge nolle prosequi.
Kunz was freed on November 20, 2000. Some time later,
he filed a lawsuit under 42 U.S.C. § 1983 for, among
other things, excessive use of force and failure to give
medical treatment, as well as a claim for malicious pros-
ecution under Illinois law. During the pretrial stage of
the proceeding, the district court granted summary judg-
ment in favor of defendant Michael Goldston and it
dismissed Kunz’s malicious prosecution claim. On August
5, 2005, just before trial was to begin, Kunz dismissed
Nos. 06-3827 & 06-3828 5
without prejudice all remaining defendants except the
City and DeFelice. (It is now much too late to revive
those claims, and so these dismissals are now, as a prac-
tical matter, with prejudice.) At that time, Kunz also
mentioned that he was seeking damages to compensate
for the time he spent in detention. With respect to the
latter point, the court ruled that Kunz could not intro-
duce this evidence unless and until the jury ruled in his
favor on liability.
After a four-day trial, the jury returned a verdict on
August 11 finding that one or more City police officers
and DeFelice used excessive force against Kunz and
that City officers failed to provide him with medical
attention. As we have already mentioned, it found that
DeFelice was liable for $10,000 in compensatory damages
and $250,000 in punitive damages, and the City was
liable for $15,000 (since it had stipulated that it would
pay any damages on behalf of the unnamed defendants
in the suit). At that point, the record becomes murky. It
is apparent, however, that Kunz never asked the district
court to permit him to introduce evidence on the addi-
tional damages claim he had raised just before trial.
Instead, on August 22, he moved for entry of judgment
against DeFelice and the City. On August 22, the court
responded with a minute order saying only “MOTION
by Plaintiff Jeremy Kunz for entry of judgment . . . is
granted. No notice”; the docket indicates that this order
was entered on August 29, 2005. Eventually, on Septem-
ber 16, 2005, the court entered a formal “Judgment in a
Civil Case”; interestingly, that judgment says that it “is
entered in favor of plaintiff Jeremy Kunz and against
defendant City of Chicago and Richard Defelice [sic] in the
amount of $25,000 for compensatory damages and $250,000
6 Nos. 06-3827 & 06-3828
in punitive damages against defendant Richard Defelice.”
(It is unclear why the court added together the two com-
pensatory damages verdicts, but as this has no effect on the
appeal, we do not comment further on it.) As we ex-
plain below, even this order left parts of the case hanging,
but all claims of all parties were eventually wrapped up
before the notices of appeal were filed.
In the meantime, on September 1, 2005, DeFelice moved
under FED. R. CIV. P. 59 to reduce the punitive damages
award. This motion was filed just three business days
after the court’s minute order granting Kunz’s motion
for entry of judgment was entered, even though it came
before the Rule 58 judgment. Before the court ruled on
DeFelice’s motion, Kunz filed a motion on November 4,
2005, seeking to revive his claim for damages arising from
his detention; he argued in the motion that the Fourth
Amendment supported such damages, and he added an
argument based on the Fifth Amendment in his reply brief.
The district court rejected Kunz’s motion in an order of
June 22, 2006. It ruled on DeFelice’s remittitur request on
August 30, 2006, and reduced the punitive damages
award to $90,000. It did not, however, enter a new
Rule 58 judgment. Both DeFelice and Kunz filed their
notices of appeal and cross-appeal on October 19, 2006.
II
We begin with Officer DeFelice’s appeal. Before
turning to the merits, we must decide whether his notice of
appeal was filed by the required date. In general, parties
other than the United States have 30 days from the date
when the judgment or order is entered to file an appeal.
FED. R. APP. P. 4(a)(1)(A). A motion under FED. R. CIV. P. 59
Nos. 06-3827 & 06-3828 7
to alter or amend a judgment has the effect of post-
poning this deadline until the entry of an order disposing
of that motion. FED. R. APP. P. 4(a)(4)(A)(iv). In this
case, the court disposed of DeFelice’s Rule 59 motion on
August 30, and DeFelice did not file his notice of
appeal until October 19, substantially beyond the 30-day
period allowed. We must therefore see whether any
rule effectively extended the time for his appeal.
The answer depends on whether the district court’s
order granting his Rule 59 motion in part is one that is
subject to the “separate document” requirement of Rule
58(a). That rule says “[e]very judgment and amended
judgment must be set out in a separate document, but
a separate document is not required for an order dis-
posing of a motion . . . (4) . . . to alter or amend the judg-
ment, under Rule 59 . . . .” If the separate-document
requirement applies, then both Rule 58(c)(2) and FED. R.
APP. P. 4(a)(7)(A)(ii) provide that the time of entry is
considered to be the earlier of the date when the judg-
ment is set out in the separate document or 150 days
from the entry of the order or judgment in the civil
docket. If the separate-document rule does not apply,
then the time of entry is simply whenever the judgment
is entered in the civil docket. For DeFelice, if the time
is measured from the latter date, then his notice of
appeal is too late. If, however, the separate-document rule
applies, he is entitled to take advantage of the 150-day
period provided by Rule 58(c)(2)(B) and FED. R. APP. P.
4(a)(7)(A)(ii)(second bullet point).
The language of Rule 58 and its appellate counterpart
does not contain any exceptions or qualifications for
orders disposing of motions under Rule 59. Logically,
therefore, one might think that the Rule exempts from the
8 Nos. 06-3827 & 06-3828
separate-document requirement all such motions, not
just a subset of them. That is not, however, the way that
this court read the rule in Employers Insurance of Wausau
v. Titan International, Inc., 400 F.3d 486 (7th Cir. 2005).
We were concerned that the great majority of amended
judgments would come about as a result of motions
made under the various rules identified in Rule 58(a).
Appellate Rule 4(a)(4)(B)(ii) reinforces that assumption,
insofar as it seems to contemplate an amended final
judgment from which an appeal may be taken, after the
district court rules on any of the motions listed in Rule
4(a)(4)(A).
If orders disposing of this set of post-judgment motions,
including motions under Rule 59, were not subject to the
separate-document rule, there is a risk that we would
effectively have read the separate-document require-
ment out of the rule for almost all amended judgments.
Moreover, Rule 58(a) had good reason to require a separate
document for at least some amended judgments: the
document clarifies what the ultimate result is, benefiting
both the parties (for purposes of enforcement and clarity
of legal obligation) and the judicial system (for providing
a clear time period for taking an appeal). In order to reach
that desirable outcome, however, some stretching was
necessary, as we explained:
The only way to reconcile the requirement that an
amended judgment be set forth in a separate document
with the exception to that requirement for an order
disposing of a Rule 59(e) motion is by reading “dispos-
ing of a motion” as “denying a motion.” The reading
is supported, though muddily, by the Committee
Note to the 2002 Amendment to Rule 58. The note
states that “if disposition of the [Rule 59(e)] motion
Nos. 06-3827 & 06-3828 9
results in an amended judgment [ . . . ] the amended
judgment must be set forth on a separate document[.]”
[ . . . ] Granting a motion is one way of “disposing” of
it, but when a motion to amend a judgment is
granted, the result is an amended judgment, so the
rule becomes incoherent if “disposing” is read lit-
erally, for then the order granting the motion both is,
and is not, an order required to be set forth in a sepa-
rate document. Nonsensical, or as here logically
impossible, interpretations of statutes, rules, and
contracts are unacceptable . . . . So we are driven to
interpret “disposing” as “denying,” not “granting or
denying[.]”
Titan, 400 F.3d at 489 (citations omitted). As far as we can
tell, no court of appeals has disapproved Titan’s result. The
result is a sensible one, putting to one side the tension
it creates with the language of the rule, and Titan is a
relatively recent decision from this court. We therefore
adhere to its ruling and conclude that the separate-docu-
ment rule did apply to the district court’s August 30,
2006, order of remittitur. Because no such document
was ever prepared, the time of entry of that order is
deemed to be 150 days after the order was docketed.
DeFelice’s appeal fell comfortably within that period,
and we thus have appellate jurisdiction.
DeFelice challenges both the jury’s finding of liability and
the amount of the punitive damages award, even as
reduced. His primary complaint about the liability ruling
relies on several evidentiary rulings that the district
court made during the course of the trial. In order to
review this kind of complaint, it is essential that counsel
draw to this court’s attention the rulings and explanations
the district court gave for its actions. That is why FED. R.
10 Nos. 06-3827 & 06-3828
APP. P. 30(a)(1)(B) & (C) require the appellant to file an
appendix containing “the relevant portions of the plead-
ings, charge, findings, or opinion” and “the judgment,
order, or decision in question.” See also 7TH CIR. R. 30(a).
Unfortunately, none of the rulings that DeFelice chal-
lenges was attached to his brief. Although Kunz supplied
several of the missing rulings (albeit not always with
correct citations), at least one of them was not. Worse, there
are places where the citations have not supported the
points for which they were furnished. This violates FED. R.
APP. P. 30(a)(1)(B) & (C) and 7TH CIR. R. 30(a); it also
means that the certification required by 7TH CIR. R. 39(d)
was incorrect. As we pointed out in United States v.
Patridge, 507 F.3d 1092 (7th Cir. 2007), “[t]his court regu-
larly fines lawyers who violate Circuit Rule 30 yet falsely
certify compliance under Circuit Rule 30(d). E.g., United
States v. White, 472 F.3d 458, 465-66 (7th Cir. 2006); United
States v. Evans, 131 F.3d 1192 (7th Cir. 1997); In re Galvan,
92 F.3d 582 (7th Cir. 1996).” 507 F.3d at 1096. We return to
this topic at the end of the opinion. For now, we observe
only that the appellate record included enough to permit
us to carry forward with our review of the case.
A. Exclusion of Evidence of Conviction
The first ruling DeFelice asks us to examine is the district
court’s decision to exclude one of Kunz’s convictions
from evidence. The State wanted to introduce a 2005
conviction for retail theft into evidence, even though it
had already succeeded in putting many other convic-
tions before the jury. DeFelice contends that the retail
theft conviction is especially probative because it hap-
pened very close to trial and thus supposedly illustrated
Nos. 06-3827 & 06-3828 11
a consistent pattern of criminality. This is propensity by
another name, however (DeFelice calls it “full flavor”), and
propensity is a forbidden basis for admitting evidence. See
United States v. Wright, 901 F.2d 68, 70 (7th Cir. 1990);
see also FED. R. EVID. 404(b). Given the prior convictions
for residential burglary already in evidence, the district
court was entitled to conclude that the retail theft evid-
ence was cumulative or inadmissible propensity evidence.
DeFelice also argues that the conviction should have
been admitted either as a crime involving falsehood, see
FED. R. EVID. 609(a)(2), or for impeachment. Looking first
at impeachment, here again the district court enjoys
broad discretion. DeFelice cites Green v. Bock Laundry
Machine Co., 490 U.S. 504 (1989), and Campbell v. Greer,
831 F.2d 700 (7th Cir. 1987), for the proposition that
evidence of past convictions submitted under FED. R.
EVID. 609(a)(1) is not subject to the considerations of
prejudice set forth in FED. R. EVID. 403. He does not men-
tion that Rule 609 was amended after Green and Campbell
to incorporate expressly the balancing of probative
value against prejudice that Rule 403 embodies. The dis-
trict court was thus fully entitled to take Rule 403 into
account. Whether, in the final analysis, the court’s rea-
soning was predicated on cumulativeness or propensity,
we find no indication that the court abused its discretion
or that its ruling prejudiced DeFelice.
DeFelice also argues that the district court should have
admitted Kunz’s prior conviction as a crime involving
falsehood under Rule 609(a)(2), which does not
incorporate Rule 403. Although DeFelice is correct that
Illinois considers theft to be a crime of dishonesty for the
purposes of its version of Rule 609(a)(2), People v. Spates,
395 N.E.2d 563, 567-69 (Ill. 1979), he is incorrect to assume
12 Nos. 06-3827 & 06-3828
that this designation is binding on this court—it is not. See
United States v. Cameron, 814 F.2d 403, 405 (7th Cir. 1987).
This circuit generally does not count retail theft as a
crime of dishonesty. See United States v. Amaechi, 991 F.2d
374, 379 (7th Cir. 1993). If DeFelice had presented some
independent reason to override Amaechi and construe
Kunz’s conviction as a crime involving dishonesty, we
could have evaluated that argument. See United States v.
Rodriguez-Andrade, 62 F.3d 948, 952 (7th Cir. 1995). He did
not, however, and we thus cannot conclude that the dis-
trict court abused its discretion by failing to follow
Rule 609(a)(2).
What DeFelice would really like to do is to portray Kunz
as a witness who is predisposed against police officers
and who has a propensity to misbehave. But FED. R. EVID.
404 generally forbids the use of past acts, even of crim-
inality, to prove a criminal, dishonest character in a
civil case. None of the exceptions to that rule applies
here. The jury had ample evidence before it that alerted it
to Kunz’s prior encounters with the law. Whether the
court excluded the evidence because it raised an infer-
ence of propensity forbidden by Rule 404 or because it
was cumulative and thus excludable under Rule 403,
we see no abuse of that discretion.
B. Exclusion of Expert Witness
DeFelice also argues that the district court erred by
excluding his key expert witness, James O’Donnell. Under
the framework established by FED. R. EVID. 702 and the
Supreme Court’s decision in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), this court
reviews de novo whether the district court understood the
Nos. 06-3827 & 06-3828 13
legal requirements of Rule 702, and then reviews decis-
ions to admit or exclude expert testimony for abuse of
discretion. General Electric Co. v. Joiner, 522 U.S. 136, 142-43
(1997); United States v. Parra, 402 F.3d 752, 758 (7th Cir.
2005).
Kunz asserts that DeFelice failed to preserve this point
properly in the district court, but we are satisfied that
DeFelice’s offer of proof was enough to alert the court
to the central questions: what was O’Donnell going to
testify about, what methods did he use, and on what
information did he base his conclusions? The first
Daubert question on the merits is whether the court han-
dled its gatekeeping role properly. The court must decide
whether the proffered expert testimony is “based upon
sufficient facts or data” and is “the product of reliable
principles and methods.” FED. R. EVID. 702(1) & (2). Here,
the district court found O’Donnell’s testimony unreliable
because it was not based on a sound methodology.
DeFelice wanted O’Donnell to testify about Kunz’s
ability to recall and narrate events on the night in ques-
tion, given the fact that Kunz had admitted to using a
small amount of heroin earlier in the evening. The dis-
trict court noted that O’Donnell knew neither a base-
line against which to judge whether Kunz was impaired,
nor Kunz’s habituation level (which might influence the
impairing effects of the drug). Indeed, O’Donnell was a
singularly unimpressive witness. His credentials were
weak, at best: his degree is called a Pharm.D.; he earned
it after one year of classes, only one of which was in
pharmacology. Despite the title, his Pharm.D. is not
actually in pharmacology, and O’Donnell admitted else-
where to advertising falsely that it was. Before he be-
came a full-time consulting expert witness, O’Donnell’s
14 Nos. 06-3827 & 06-3828
experience was as a nutritionist. In addition, O’Donnell
practically admitted on cross-examination that he had
not referred to any scientific literature in formulating
his opinion in this case except for one article, proffered
by Kunz, which contradicted O’Donnell’s conclusion.
The district court found O’Donnell’s testimony unhelp-
ful, commenting that “[v]irtually everything [O’Donnell]
said, with respect to this, was anticipated by me.” The
court then compared O’Donnell to other expert wit-
nesses who “give you a long description of why 20 or 30
percent of eyewitnesses make errors” but who “really
have nothing to offer as to why this particular eyewit-
ness in the case didn’t make an error.” O’Donnell hoped
to shed light on heroin users as a group, but he had
nothing useful to say about Kunz’s condition at the
critical time. In addition, Kunz pointed out that even if
O’Donnell’s testimony were taken at face value, the
impairing effects of the heroin should have worn off at
least 90 minutes before the car chase occurred. According
to a defense expert, there might not have been any effect
at any time. That expert opined that habituation levels
are crucial in a case like this: far from being impaired,
a habituated heroin user can use a “maintenance dose”
to avoid impairment and maintain normal function. Under
the circumstances, the district court did not abuse its
discretion in excluding O’Donnell’s testimony. See Kumho
Tire Co. v. Carmichael, 526 U.S. 137, 153-54 (1999).
C. Restriction on Cross-Examination about Drug Use
DeFelice questions the district court’s ruling barring
cross-examination about drug use. The chief difficulty he
faces on appeal is that the district court never made this
Nos. 06-3827 & 06-3828 15
ruling. As DeFelice acknowledges in his reply brief, the
district court forbade only use of the word “heroin,”
because at the time of the arrest, the officers did not know
the nature of the drug or Kunz’s usage and because
mention of heroin would be more prejudicial than helpful.
DeFelice apparently intended to cross-examine Kunz about
his drug use in order to establish the foundation for
O’Donnell’s testimony about the impairing effects of
heroin use.
This court has explained when evidence of a witness’s
drug use may be introduced:
Evidence that a witness has used illegal drugs may
be probative of the witness’ possible inability to recol-
lect and relate . . . . This evidence may be admitted
where the memory or mental capacity of a witness is
legitimately at issue. . . . At the same time, however,
there is considerable danger that evidence that a
witness has used illegal drugs may so prejudice the
jury that it will excessively discount the witness’
testimony. . . . A court must, therefore, be chary in
admitting such evidence when it is offered for the
sole purpose of making a general character attack.
United States v. Cameron, 814 F.2d 403, 405 (7th Cir. 1987)
(quotations and citations omitted). The only link between
Kunz’s drug use on the night in question and his recol-
lection would have been through O’Donnell’s testimony.
Absent that link, additional evidence of Kunz’s drug use
(other than that to which he had already admitted)
would only have served to raise the inference that drug
users tend to lie. That inference is impermissible. United
States v. Robinson, 956 F.2d 1388, 1397-98 (7th Cir. 1992)
(“The appellants, in sum, insist that witnesses who have
previously used narcotics are more likely to tell lies. This
16 Nos. 06-3827 & 06-3828
is exactly the type of character attack that Cameron and
Jarrett [v. United States, 822 F.2d 1438 (7th Cir. 1987)]
forbid.”). The district court did not abuse its discretion
when it established limitations on the evidence about
Kunz’s drug use.
D. Exclusion of Witnesses as Discovery Sanction
DeFelice takes issue with the district court’s decision to
bar the testimony of five witnesses as a discovery
sanction under FED. R. CIV. P. 37. The district court took
this step because it found that DeFelice failed to disclose
the names properly. As Kunz points out, the names
were buried within a multitude of other names, such as
a police district roll call, with nothing to signal that
they had anything useful to add. The district court
found that it would place an excessive burden on the
plaintiff to require him to sift through every single
name turned over in discovery. In fact, DeFelice is
caught in a trap here. If the testimony of these witnesses
was relevant and useful, then his failure to disclose was
prejudicial, and the district court properly exercised its
discretion to exclude the testimony as a Rule 37 sanction.
On the other hand, the error could only be harmless if
the testimony was irrelevant or not useful—which
would be grounds for excluding it anyway. Either
way DeFelice wants to have it, the district court did not
abuse its discretion in excluding the testimony.
E. Punitive Damages; Other Defendants
DeFelice’s final two arguments are intertwined: he
asserts that the district court should not have permitted
Nos. 06-3827 & 06-3828 17
Kunz to dismiss all of the defendants other than DeFelice
on the eve of trial. Their absence at trial prejudiced him,
he says, primarily because it led the jury to impose the
full weight of the punitive damages on him alone. That
award, he continues, even at the $90,000 level, is dispropor-
tionate to the compensatory damages.
Voluntary dismissal pursuant to FED. R. CIV. P. 41(a)(2) is
allowed at the district court’s discretion. Tyco Laboratories,
Inc. v. Koppers, Co., 627 F.2d 54, 56 (7th Cir. 1980). A
district court abuses its discretion only if the defendant
shows that she will suffer “plain legal prejudice.” We
have identified four factors that throw light on whether
this kind of prejudice would arise: “[t]he defendant’s
effort and expense of preparation for trial, excessive
delay and lack of diligence on the part of the plaintiff in
prosecuting the action, insufficient explanation for the
need to take a dismissal, and the fact that a motion for
summary judgment has been filed by the defendant.” Pace
v. Southern Express Co., 409 F.2d 331, 334 (7th Cir. 1969).
DeFelice does not come close to showing reversible error
here. The assertion that his defense was hampered by
creating too many empty chairs at the defense table
seems backward: far from preventing him from “deflect-
ing” liability onto others, as he phrases it, it permitted
him to point at those empty chairs and question how
much of the harm he was responsible for. Unlike co-
defendants, empty chairs do not talk back. DeFelice
questioned Kunz about the dismissals at trial, and so the
jury was well aware that DeFelice was not the only
officer involved. Finally, DeFelice did not object to the
motion at the time, and so he has forfeited the point.
DeFelice also argues that he was saddled with dispropor-
tionate punitive damages (initially $250,000, then after
18 Nos. 06-3827 & 06-3828
remittitur $90,000) because he ended up as the sole de-
fendant. When no constitutional issue about the size of
a punitive damages award has been raised, we review
only for abuse of discretion. Cooper Industries v. Leather-
man Tool Group, 532 U.S. 424, 433 (2001). If, however,
we must decide whether an award transgresses constitu-
tional limits, our review is de novo. Id. at 436. DeFelice
cites constitutional decisions in his brief, including BMW of
North America, Inc. v. Gore, 517 U.S. 559, 575 (1996),
and State Farm Mut. Automobile Ins. Co. v. Campbell, 538 U.S.
408, 425 (2003), but he also cites one case from this circuit
where a conventional claim of excessiveness was raised,
and reviewed deferentially, Abernathy v. Superior Hard-
woods, Inc., 704 F.2d 963, 971 (7th Cir. 1983). Despite Coo-
per’s guidance, he does not distinguish between the
two kinds of arguments. The Supreme Court’s recent
decision in Exxon Shipping Co. v. Baker, 128 S.Ct. 2605(2008), underscores the importance of keeping these
theories straight. In Exxon, the Court held that as a matter
of federal common law, a punitive damages award in an
admiralty case may not exceed the compensatory award
(that is, a 1:1 ratio is the upper limit for this class of cases).
128 S.Ct. at 2633. The Court stressed both the particular
features of maritime law, as exemplified by the oil spill
caused by the Exxon Valdez, and the fact that it was
“acting here in the position of a common law court of last
review.” Id. at 2629.
Kunz’s case was brought under 42 U.S.C. § 1983. Al-
though this statute, like many, requires a certain amount
of elaboration, we do not sit, as the Exxon Court did, as
a “common law court of last review.” Instead, we must
respect the limitations Congress built into the statute. In the
context of establishing the proper limitations period
Nos. 06-3827 & 06-3828 19
for various federal actions when the statute is silent,
the Supreme Court has reminded us that “[i]nevitably
our resolution of cases or controversies requires us to
close interstices in federal law from time to time, but
when it is necessary for us to borrow a statute of limitations
for a federal cause of action, we borrow no more
than necessary.” West v. Conrail, 481 U.S. 35, 39 (1987).
Looking particularly at § 1983, the Court has also held that
“[t]here can be no doubt that claims brought pursuant to
§ 1983 sound in tort.” Monterey v. Del Monte Dunes at
Monterey, Ltd., 526 U.S. 687, 709 (1999); id. at 727 (Scalia, J.,
concurring). There is thus good reason for us to look for
guidance in the standards for excessiveness of punitive
damages that courts have established in tort cases, when
we evaluate this verdict.
DeFelice, however, has not presented any argument
for the proposition that § 1983 imposes a stricter limita-
tion on awards of punitive damages than the Constitution
would permit in a state tort case. We therefore have no
reason to consider that question. Instead, as he has im-
plicitly requested, we look only at the question whether
the eventual verdict of $90,000 in punitive damages
exceeds the outer limits established in the Supreme Court’s
constitutional cases. Our evaluation is guided by three
guideposts: the reprehensibility of the action in question,
the ratio between the compensatory and punitive dam-
ages, and the parallel remedies available. See Gore, 517
U.S. at 575.
Of these guideposts, “[p]erhaps the most important
indicium of the reasonableness of a punitive damages
award is the degree of reprehensibility of the defend-
ant’s conduct.” Id. Evaluating reprehensibility involves
inquiry into whether the injury was physical, whether
20 Nos. 06-3827 & 06-3828
it evinced a reckless disregard for the health of the
target, whether the target had a financial vulnerability,
and whether the injury was clearly intentional. See State
Farm, 538 U.S. at 419. DeFelice’s brief slid quickly over
this factor. Kunz’s injury was clearly physical, he was
shackled and defenseless while he was being punched
and thus vulnerable to the injury inflicted, and DeFelice’s
violent actions were intentional. This court takes police
brutality very seriously as grounds for punitive damages.
See, e.g., Cooper v. Casey, 97 F.3d 914, 919 (7th Cir. 1996).
The need to deter such behavior is plain: police brutality
is a longstanding problem with which many cities are
still coming to grips. The reprehensibility of DeFelice’s
conduct in his position of public trust justifies a substan-
tial punitive damages award.
The second guidepost we consult is the ratio between the
compensatory and punitive damages awards. As Exxon
reiterated, there is no “simple mathematical formula” that
courts must follow. See 128 S.Ct. at 2626; Gore, 517 U.S. at
580-82. Instead, the Exxon Court acknowledged that
“heavier punitive awards have been thought to be justifi-
able when wrongdoing is hard to detect” or “when the
value of injury and the corresponding compensatory
award are small.” 128 S.Ct. at 2622. In making the latter
point, the Court relied on Gore, which recognized that
“low awards of compensatory damages may properly
support a higher ratio than high compensatory awards,
if, for example, a particularly egregious act has resulted
in only a small amount of economic damages.” 517 U.S.
at 582. DeFelice does not offer a clear response to this
point. The jury’s award of $10,000 in compensatory dam-
ages against DeFelice was low for a beating of this kind,
and there is some reason to think that the “punitive” award
Nos. 06-3827 & 06-3828 21
was disguised compensation for pain and suffering. A
total of $100,000 for Kunz’s injuries does not seem exces-
sive. Moreover, even accepting the characterization of
the $90,000 damages award as punitive, the ratio to com-
pensatory damages is still in the single-digits—9:1—
nowhere near the 500:1 ratio overturned in Gore. Particu-
larly in light of DeFelice’s poorly developed arguments
on this point, we see no reversible error in the ratio be-
tween the compensatory and the punitive damages.
The final guidepost involves examining the parallel
remedies available to Kunz. DeFelice argues that under
Illinois law a conviction for battery or aggravated battery
would have resulted in fines of $2,500 or $25,000, respec-
tively. See 730 ILCS 5/5-9-1(a)(1) & (2). While this is
true, he neglects to point out that an aggravated battery
conviction, a felony, might also bring from two to five
years of prison time. 730 ILCS 5/5-8-1(a)(6). In Gore the
Supreme Court recognized that fines alone might not
tell the whole story about proportionality when imprison-
ment is also on the table. See Gore, 517 U.S. at 583-84. In
this case, the possibility of damages under 42 U.S.C. § 1983was also lingering in the background. In short, we cannot
simply look in isolation at the fines authorized under
the pertinent Illinois statutes. We note as well that
nothing in this record suggests that DeFelice has al-
ready been punished. The City’s brief says only that he
is “no longer a Chicago police officer,” citing to a place
in the record where DeFelice testifies that he is retired.
The broader picture therefore shows that the punitive
damages award ordered by the court is not so dispropor-
tionate that we must vacate it.
22 Nos. 06-3827 & 06-3828
III
We now turn to Kunz’s cross-appeal against the City
of Chicago. He appeals the district court’s decision to
enter summary judgment in the City’s favor on his con-
stitutional and state malicious prosecution claims. The
City, in addition to defending its judgment, asserts that
this court has no jurisdiction over the cross-appeal be-
cause it was untimely filed. We conclude, however, that
we have appellate jurisdiction. After explaining why,
we turn to the merits.
A. Jurisdiction
The City questions the timing of Kunz’s damages com-
plaint. It argues that Kunz did not raise this claim until
after the district court entered final judgment in the case,
and thus that this can at most be a motion under FED. R.
CIV. P. 60(b). If that were correct, then his motion would
be untimely: the court entered its judgment on Septem-
ber 16, 2005; the motion was made on November 4,
2005, and then it was denied on June 22, 2006. A motion
under Rule 60(b) has a 30-day time limit for filing an
appeal. See FED. R. APP. P. 4(a)(1)(A) (setting time limit at
30 days from the entry of the order appealed from); FED. R.
APP. P. 4(a)(7)(A)(i) (starting clock on date of filing if
order does not require a separate document to be filed);
FED. R. CIV. P. 58(a)(1)(E) (order under Rule 60 does not
require a separate document). On this account, Kunz’s
notice of appeal—filed October 19, 2006—comes too late,
ousting this court of jurisdiction.
But a look at the record as a whole reveals that the
district court used the “final judgment” form prematurely,
even by its own lights. The district court had expressly
Nos. 06-3827 & 06-3828 23
bifurcated Kunz’s claim for damages. When it addressed
the merits of the issue in its June 22, 2006 opinion, it
noted that it had given permission to Kunz to raise the
issue later on if he won at the main § 1983 trial. In a
minute order entered on October 6, 2005, just a few
weeks after the September 16 form was docketed, the
court recognized that there was an “additional damages
motion to come.” Frustratingly, the district court did not
purport to resolve all of the issues before it in the June 22,
2006 opinion, nor did it give a “no just reason for delay”
certification for appeal of a partial summary judgment
under Rule 54(b). All that we can see is an internal
docket entry stating “case terminated,” although it is not
clear that this was even entered by the judge. With all of
the other evidence we have, we agree with Kunz that the
June 22, 2006 opinion was not a final judgment with
respect to all claims against all parties. Thus, it would
be improper to characterize his later motion as one made
under Rule 60.
As best as we can tell (and it should not be this hard),
the true final judgment in this case did not come until
the resolution of DeFelice’s remittitur motion on Au-
gust 30, 2006. Like DeFelice’s own notice of appeal,
Kunz’s October 19, 2006 notice of appeal is therefore
timely under the 150-day limit of FED. R. APP. P.
4(a)(7)(A)(ii), and this court has jurisdiction over Kunz’s
cross-appeal.
B. Unlawful Detention
Kunz would like to assert a damages claim for the
extra year he spent in jail, but his theory has shifted
through the case. This claim was split off from the rest of
24 Nos. 06-3827 & 06-3828
the trial in August 2005, raised again on November 4,
2005, and then denied on June 22, 2006. As of Novem-
ber 2005, it was framed as a claim for damages for the
use of excessive force in violation of the Fourth Amend-
ment. Kunz urged that the coercive force DeFelice used
proximately caused his extended detention and ensuing
damages. Later, in March 2006, Kunz recast the claim as
one under the Fifth Amendment, in reaction to this
court’s holding in Sornberger v. City of Knoxville, 434
F.3d 1006 (7th Cir. 2006).
The district court ruled that Kunz had failed to state a
claim under either the Fourth or the Fifth Amendment; it
expressed no opinion on the merits of a possible claim
under the Fourteenth Amendment’s substantive due
process jurisprudence. The Fourth Amendment claim
was found foreclosed under Wallace v. City of Chicago, 440
F.3d 421, 429 (7th Cir. 2006) (“We reject the idea of a
stand-alone ‘false confession’ claim based on the Fourth
Amendment, rather than the Fifth Amendment or the
due process clauses.”), affirmed on other grounds under
the name Wallace v. Kato, 127 S.Ct. 1091 (2007). Kunz
does not appeal this part of the ruling, but he does appeal
the district court’s rejection of his Fifth Amendment theory.
The Fifth Amendment argument was not properly
preserved before the district court. Kunz’s initial brief
addressed only a claim under the Fourth Amendment;
the Fifth Amendment theory was not articulated until
the reply brief on this question. While all that is required
is notice pleading, see Bell Atlantic Corp. v. Twombly, 127
S.Ct. 1955 (2007), the district court effectively considered
this motion in a summary judgment posture. Kunz thus
had to articulate a legal theory under which he was
entitled to relief. See FED. R. CIV. P. 56(c). Although the
Nos. 06-3827 & 06-3828 25
district court briefly mentioned the Fifth Amendment, its
opinion shows that the theory was not fully developed
before it (certainly not in the detail with which it was
presented to this court). Especially on a question that
would require the application of a novel legal theory to a
new set of facts—as would be the case if Sornberger were
to be applied here—the district court must have the first
opportunity to rule with the benefit of full briefing and
consideration. Failure adequately to present an issue to
the district court waives the issue on appeal. Belom v.
Nat’l Futures Ass’n, 284 F.3d 795, 799 (7th Cir. 2002). We
therefore affirm the district court’s judgment on this
issue on the ground that it was not properly preserved
in the district court.
C. Malicious Prosecution
Finally, the district court granted summary judgment
to the City on Kunz’s malicious prosecution claim. In
order to prove malicious prosecution, Kunz must show
“(1) the commencement or continuance of an original
criminal or civil judicial proceeding by the defendant;
(2) the termination of the proceeding in favor of the
plaintiff; (3) the absence of probable cause for such pro-
ceeding; (4) the presence of malice; and (5) damages
resulting to the plaintiff. . . . The absence of any one of
these elements bars a plaintiff from pursuing the
claim.” Swick v. Liautaud, 662 N.E.2d 1238, 1242 (Ill. 1996)
(citations omitted). The district judge found that the nolle
prosequi entered in Kunz’s case was not sufficiently indica-
tive of innocence to satisfy the second Swick element
and consequently did not reach any of the other elements.
We express no view on the second element, because we
26 Nos. 06-3827 & 06-3828
find that Kunz cannot satisfy the third one: there was
sufficient probable cause to arrest and detain him.
The Illinois statute in question, 625 ILCS 5/4-103(a)(1),
makes it a crime to possess a stolen car knowing it to be
stolen. Kunz argues that there was insufficient indication
of scienter to give probable cause for a charge under this
provision: the police could not have thought that Kunz
knew the SUV to be stolen. Nevertheless, in the very
provision in question the statute says that “it may be
inferred . . . that a person exercising exclusive unexplained
possession over a stolen or converted vehicle . . . has
knowledge that such vehicle . . . is stolen or converted.” Id.Kunz’s behavior easily exhibited the requisite control to
demonstrate scienter. Illinois courts have relied on this
constructive scienter provision. See People v. Gentry, 549
N.E.2d 609, 612 (Ill. App. Ct. 1989). This statute has been
applied even when there are no outward signs of theft on
the vehicle itself (such as a stripped steering column or
punched locks) and when the keys were found in the car,
People v. Wallace, 772 N.E.2d 785, 790-91, 797 (Ill. App. Ct.
2002), both of which were true in this case as well. The
facts as they were known to the police at the time of the
incident gave rise to an inference of probable cause
under Illinois law. Because probable cause existed for
the charge against Kunz, the prosecution cannot have
been malicious under Illinois law.
IV
In summary, we hold that Officer DeFelice has failed to
show any abuse of discretion in the district court’s
various evidentiary rulings, and certainly not one
affecting his substantial rights. He has also offered no
Nos. 06-3827 & 06-3828 27
reason why we should set aside the amended award of
punitive damages. Similarly, Kunz has failed to demon-
strate why the district court erred in its rulings on his
Fifth Amendment theory or his malicious prosecution
claim. We therefore AFFIRM the judgment of the district
court.
With respect to the violation of 7TH CIR. R. 30(d) we
discussed above, we hereby issue an order to Joseph V.
Roddy and Stacey McGlynn Atkins, the attorneys for
DeFelice who signed the brief, to show cause why they
should not be fined or otherwise disciplined for this
violation. Their response is due within 10 days of the
date of this opinion.
8-14-08