Seventh Circuit Extends Ohler To Civil Context
CLARETT v. ROBERTS (September 23, 2011)
On in early October morning in 2005, police officers from Lynwood and Lansing arrived at the home of Patricia Clarett. The officers suspected that Clarett and her sons were involved in a burglary. Although Clarett and the officers had very different recollections of what happened after they arrived at her home, they do agree that Lansing police officer Steven Roberts used his Taser on Clarett three times. Clarett brought an action against a number of police officers, alleging excessive force and false arrest, as well as state law, claims. After a jury found for the defendants, Judge Grady (N.D. Ill.) denied Clarett's post-trial motions. Claret appeals.
In their opinion, Seventh Circuit Judges Manion, Rovner, and Sykes affirmed. The Court first addressed the evidentiary challenges. Clarett challenged the district court's ruling in limine that two criminal convictions, misdemeanor retail theft and obstruction of a police officer, were admissible. The Court concluded that neither conviction was admissible under Rule 609, in that neither had an element of dishonesty. Furthermore, under Rule 608 (b), defendants could not prove the convictions with extrinsic evidence or make affirmative use of them. However, probably in response to the pretrial ruling, Clarett's own counsel introduced the convictions during her case-in-chief. In Ohler, the Supreme Court held that a criminal defendant waived his right to challenge the admission of convictions if he introduced evidence of it first. The Court noted that it had never applied Ohler in a civil context, although other circuits had. It concluded that the principle should apply in civil cases. Clarett cannot challenge the admission of the convictions. Next, Clarett challenged Officer Roberts' testimony about his use of the Taser as impermissible expert testimony. The Court disagreed. The testimony was not of a technical nature but was limited to Roberts' own experience. Alternatively, since all parties agreed that he used the Taser three times, any error was harmless. Finally, Claret challenged the district court's exclusion of evidence that there was no warrant. The Court concluded that no only was the evidence of no warrant irrelevant to the excessive force or false arrest claims, but also that Clarett in fact testified on two occasions that there was no warrant. The district court did not abuse its discretion. Clarett also challenged the jury instructions. The Court found no merit in her challenges. Finally, Claret challenges the jury's verdict, asserting that three Taser deployments constitutes excessive force. The Court noted the conflicting versions of the events of that morning in October. It concluded that there was sufficient evidence in the record to support the jury's verdict.
Michael Rigney practices in the law offices of GVC Ltd. in Chicago. In this blog, he reports on select