Larry Nelson v. City of Chicago

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 12-3401

LARRY NELSON,

Plaintiff-Appellant,

v.

CITY OF CHICAGO, RONALD LIS,

ELIZABETH WILSON, RICHARD

NOVOTNY, and BRADLEY RUZAK,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 09 C 883 — Rebecca R. Pallmeyer, Judge.

____________________

ARGUED DECEMBER 4, 2014 — DECIDED JANUARY 20, 2016

____________________

Before BAUER, RIPPLE, and SYKES, Circuit Judges.

SYKES, Circuit Judge. Larry Nelson was driving home one

night when four Chicago police officers in two squad cars

pulled him over, pointed a gun in his face, threatened to kill

him, handcuffed him, and searched his car for no apparent

reason. The officers have no recollection of the stop but insist

that it couldn’t have happened the way Nelson said it did.

2 No. 12-3401

Their squad-car computers, however, confirm that they ran

Nelson’s name through the law-enforcement database at the

time of the stop and turned up nothing that would justify

stopping him and searching his car.

Nelson sued the officers and the City of Chicago under

42 U.S.C. § 1983 alleging that the seizure and search violated

his rights under the Fourth Amendment. A jury found for

the defendants. On Nelson’s posttrial motion, the district

judge ordered a new trial based on an instructional error but

later reversed course and reinstated the verdict.

Nelson’s appeal raises no fewer than seven claims of er-

ror. Three have merit. First, and most significantly, the

district judge should not have admitted evidence of Nelson’s

arrest record. A second error occurred when the defense

attorney was allowed to cross-examine Nelson about other

civil suits he had filed against the City. Third, the judge

improperly allowed one of the officers to offer generalized

testimony about when the police might be justified in using

firearms and handcuffs during a traffic stop. These errors

were not harmless. Nelson is entitled to a new trial.

I. Background

Larry Nelson spent the evening of February 11, 2008,

meeting with supporters of his unsuccessful campaign for

Democratic committeeman in Chicago’s 24th Ward. The

election was just six days earlier, and he still had dozens of

campaign signs and brochures in the back of his white Ford

Windstar minivan. By 9:30 p.m. Nelson had left the gather-

ing and was on his way home. He stopped for gas near the

intersection of North Pulaski Road and West Iowa Street, an

No. 12-3401 3

area that was under heightened surveillance by Chicago

police because of its high crime rate.

Two police cruisers followed Nelson into the gas station.

After paying for his gas, Nelson began to drive away. The

police followed him, activated their lights, and pulled him

over.

What happened next is disputed—sort of. The four offic-

ers involved—Bradley Ruzak and Elizabeth Wilson in one

squad car, Richard Novotny and Ronald Lis in the other—do

not remember anything about the stop. They had made

thousands of traffic stops (Officers Ruzak and Wilson

stopped more than 40 drivers that night alone), and appar-

ently nothing about their interaction with Nelson left an

impression. But we do know that the officers used the laptop

computers in their squad cars to run Nelson’s name through

the Illinois Secretary of State’s database listing vehicle regis-

trations and the Law Enforcement Agencies Data System

(“LEADS”), which lists arrest warrants. One of the squad-car

computers conducted a database search of Nelson’s name at

9:44 p.m., the other at 9:50 p.m. These queries revealed that

Nelson’s car was properly registered and there were no

warrants for his arrest.

While the officers remember nothing about the traffic

stop, Nelson says he will never forget it. At trial he testified

that Officer Ruzak approached his minivan with his gun

drawn and aimed at his head. Nelson told the jury that he

could see a red laser sight pointed at his face. Nelson turned

off the engine of his van, threw the keys on the dashboard,

and put his hands up. Officer Novotny then ordered him out

of the van, but Officer Ruzak said, “Don’t move or I’ll blast

your ass!” three times. Faced with conflicting orders, Nelson

4 No. 12-3401

stayed put. Officer Novotny then opened the car door and

dragged Nelson out, saying, “Next time somebody tell[s]

you to move, you know, you move.” Nelson was placed in

handcuffs. When he asked why, the officers told him to

“shut up.”

Nelson testified that the officers then searched him and

took his driver’s license from his pocket. They passed the

license between them and appeared to enter his name into

the laptops in their squad cars. He testified that all four

officers then searched the minivan and appeared confused

when they found campaign materials. Officer Wilson asked,

“Who [is] Larry Nelson?” and her tone changed “360 de-

gree[s]” when Nelson replied that it was his name on the

signs. About 25 or 30 minutes after initiating the traffic stop,

the officers told Nelson he was free to go. The laptop in one

of the squads recorded a search of someone else’s name at

9:56 p.m. Nelson was not given a traffic ticket, nor was he

cited for any other violation of the law. None of the officers

filed a “contact card” to document the stop, as required by

departmental policy.

When Nelson got home, he called a district commander

whom he knew from his community-outreach work and

asked for advice. The commander suggested that Nelson call

the Independent Police Review Authority (“IPRA”) and ask

it to retain copies of any street camera footage from the area

where the stop occurred. Nelson made this request in a

timely manner. Two days later he was interviewed by an

IPRA investigator. The investigator’s report—which Nelson

signed but claims not to have reviewed—stated that the stop

began at 10:05 p.m. rather than shortly after 9:30 p.m. As a

No. 12-3401 5

result of this discrepancy, the wrong video recording was

preserved and the relevant film was destroyed.

Before trial the defendants entered into formal judicial

admissions that they had “no present recollection of proba-

ble cause or reasonable suspicion sufficient for the arrest or

stop of Larry Nelson on February 11, 2008,” and that “[n]o

information obtained by Chicago police officers as a result of

the inquiries on Larry Nelson’s name on computer databases

on February 11, 2008 gave the officers any probable cause to

arrest him.” Despite these admissions, they took the witness

stand and challenged Nelson’s description of the stop. For

example, Officer Ruzak testified that he never once used a

red laser sight on his firearm or said “I’ll blast your ass.”

Officer Novotny said he never pulled anyone out of a vehicle

and never said anything like “[n]ext time you’re given an

order, follow the order.”

Numerous evidentiary skirmishes occurred at trial. Sev-

eral are relevant to Nelson’s appeal; we’ll elaborate as need-

ed later in this opinion. For now, it’s enough to say that the

general defense strategy was to convince the jury that Nel-

son was lying about what happened during the traffic stop.

As the defense attorney summed it up before the jury: “This

lawsuit is a fraud, it’s a sham, and [Nelson’s] trying to con

you.”

The jury apparently agreed, returning a verdict for the

defendants. Nelson moved for a new trial under Rule 59,

raising multiple claims of evidentiary and instructional

error. The judge initially granted the motion, finding that

one of the jury instructions was confusing. The defendants

asked the judge to reconsider that ruling; they maintained

that Nelson had waived the relevant objection. Reversing

6 No. 12-3401

course, the judge agreed, reinstated the jury’s verdict, and

entered final judgment for the defendants.

II. Discussion

On appeal Nelson reprises the arguments he made in his

Rule 59 motion. We need address only three; all relate to

evidentiary rulings made before and during trial. Most

significantly, Nelson argues that the judge improperly

admitted evidence about his prior arrests and other lawsuits

he filed against the City. He also contends that the judge

should not have allowed Officer Novotny to testify about the

general circumstances in which police officers might justifi-

ably use their guns and handcuffs during a traffic stop. 1

Evidentiary rulings are reviewed for abuse of discretion.

Cerabio LLC v. Wright Med. Tech., Inc., 410 F.3d 981, 994 (7th

Cir. 2005). “[E]ven in the face of error, we will not reverse a

judgment entered on a jury verdict unless the erroneous

ruling violated the objecting party’s substantial rights.”

Maurer v. Speedway, LLC, 774 F.3d 1132, 1135 (7th Cir. 2014)

(citation and internal quotation marks omitted). “To meet

that threshold, a significant chance must exist that the ruling

affected the outcome of trial.” Id. Whether or not an error is

harmless is determined in light of the trial record as a whole.

1 Nelson raises the following additional claims of error: (1) the officers

were erroneously permitted to testify in contradiction of their judicial

admissions, and the district court’s attempted cure was inadequate;

(2) the burden of proof was misallocated; (3) the jury instructions were

confusing; and (4) the jury’s verdict was against the manifest weight of

the evidence. Because we’re remanding for a new trial based on other

errors, we do not need to address these claims.

No. 12-3401 7

Barber v. City of Chicago, 725 F.3d 702, 715 (7th Cir. 2013).

A. Evidence of Nelson’s Prior Arrests

Between 1983 and 1999, Nelson was arrested nine

times—once for an alleged felony and eight times for alleged

misdemeanors. These arrests are ancient history (the stop at

issue here occurred in 2008), and all the charges were dis-

missed. A bit more recently, in November 2005, Nelson was

arrested and charged with the unauthorized use of a weap-

on. See Complaint, Nelson v. Balesteri, No. 06CV6316 (N.D. Ill.

Nov. 20, 2006), ECF No. 1. Unlike the other charges, this case

went to trial and Nelson was acquitted. He thereafter sued

the arresting officers. The City settled this case for $34,000,

though without admitting any wrongdoing. See Release and

Settlement Agreement, Nelson v. Balesteri, No. 06CV6316

(N.D. Ill. May 29, 2007), ECF No. 23.

Nelson moved in limine to bar evidence of his previous

arrests at trial. The judge ruled that the prior-arrest evidence

could come in only for impeachment purposes on the issue

of Nelson’s “fear of the police.” The judge later clarified the

scope of her ruling:

If Mr. Nelson were to testify, for example, “I

had never had any encounter with police be-

fore. I was terrified. I had never seen a uniform

or a badge before. … ,” then obviously he

could be impeached, if it’s possible to impeach

him, with evidence that, in fact, he has been ar-

rested before.

On direct examination Nelson testified at length about

his public-service background, including the fact that he had

occasionally worked with the police on community-outreach

8 No. 12-3401

projects. This line of questioning tried the judge’s patience

and drew repeated objections on relevance grounds from the

defense. Nelson’s counsel responded that the testimony was

offered to rebut the defense attorney’s insinuations that

Nelson was greedy, financially desperate, or had a grudge

against the police.

Nelson also testified about his emotional distress during

the traffic stop. Asked how he felt when Officer Ruzak

pointed his gun at him, Nelson said, “I was terrified, humili-

ated, ready to piss on myself, everything. I mean, I was

just—I mean, I feared for my life.” He continued on in this

same vein, saying that he felt “[e]mbarrassed, terrified. I

feared for my life. Don’t know what this man was gonna do.

I didn’t know if he gonna shoot me or whatever. He still had

his gun out.” In response to a question about how he felt

even now about his treatment during the traffic stop, he

said, “I feel embarrassed, terrified. Right now, I’m still mad

just looking at them right now as I speak.” When asked why

he was still angry despite the passage of time, Nelson an-

swered, “Because that man had—I looked death in the face

that night in that man[’s] hand.”

At the conclusion of Nelson’s direct examination, the de-

fense attorney requested a sidebar and argued that Nelson

had opened the door for admission of evidence about his

prior experience with the police—namely, his history of

arrests. The judge agreed: “If there were other episodes,

counsel [is] entitled to explore the possibility that there are

other reasons he might be terrified by police that have

nothing to do with the alleged incident.”

The defense attorney then cross-examined Nelson about

his prior arrests, asking: “And, sir, isn’t it true that you’ve

No. 12-3401 9

actually been arrested in numerous cases?” Nelson an-

swered, “I’ve been arrested before and never been found

guilty of no crime.” On redirect Nelson’s attorney made an

effort to rehabilitate, eliciting testimony that his arrests were

“a long time ago,” none resulted in a conviction, and none

involved an officer aiming a gun at his face. No limiting

instruction was given to the jury, but the judge did prohibit

counsel from making any reference to the arrests in closing

argument.

The judge later elaborated on her rationale for allowing

this cross-examination. In her ruling on Nelson’s posttrial

motion, the judge said the arrest evidence was relevant to

Nelson’s character for truthfulness and whether he was a

law-abiding citizen. But the judge hedged a bit, saying that

she “may resolve this issue differently at the second trial in

this case,” which she had ordered based on an unrelated

error. The opportunity to revisit the matter never came, of

course; the judge rescinded her new-trial order and reinstat-

ed the jury’s verdict.

Nelson claims that admitting this evidence was reversible

error. We agree. It’s well established that “[i]n general, a

witness’s arrest record will not be admissible.” Thompson v.

City of Chicago, 722 F.3d 963, 977 (7th Cir. 2013).

This rule is based upon a clear recognition of

the fact that the probative value of such evi-

dence is so overwhelmingly outweighed by its

inevitable tendency to inflame and prejudice

the jury against the [party-witness] that total

and complete exclusion is required in order

that the right to trial by a fair and impartial ju-

ry may not be impaired.

10 No. 12-3401

Barber, 725 F.3d at 709 (alteration in original) (quotation

marks omitted). Notwithstanding this general rule, the judge

allowed the defense attorney to elicit testimony that Nelson

had “numerous” prior arrests, apparently for two purposes:

(1) to impeach the implication that he was an upstanding

public servant with a good relationship with the police (the

reason the judge cited in her Rule 59 ruling); and (2) to limit

Nelson’s damages, on the theory that some of his fear of the

police may have been attributable to his earlier arrests (the

reason she gave at trial).

We start with the impeachment rationale. “Impeachment

can be effected in a number of ways, including contradiction,

which involves presenting evidence that the substance of a

witness’s testimony is not to be believed.” United States v.

Boswell, 772 F.3d 469, 476 (7th Cir. 2014). But Nelson never

made any factual statements that could be contradicted by

evidence of his prior arrests. To use the example initially

posited by the judge, he did not testify that he “never had

any encounter with the police before.” Nor did he make any

remotely similar claim on the witness stand.

In her posttrial ruling, the judge added that the evidence

of Nelson’s prior arrests was admissible to impeach his

“character for truthful and law-abiding citizenship.” We

don’t see how. First, a witness’s character for truthfulness

may be impeached only by specific instances of prior con-

duct and only “if they are probative of the character for

truthfulness or untruthfulness.” FED. R. EVID. 608(b). Unlike

a criminal conviction, an arrest is not, in itself, probative of

the arrested person’s character for truthfulness. See Michelson

v. United States, 335 U.S. 469, 482 (1948) (“Arrest without

more does not, in law any more than in reason, impeach the

No. 12-3401 11

integrity or impair the credibility of a witness. It happens to

the innocent as well as the guilty.”); cf. FED. R. EVID. 609

(permitting impeachment by evidence that the witness has

been convicted of a crime). If the specific conduct underlying

the arrest is probative of the witness’s character for truthful-

ness, the conduct itself may be inquired into on cross-

examination, subject to Rule 403 balancing for undue preju-

dice or some other ground for excluding the evidence. But

the defense attorney did not seek permission to cross-

examine Nelson about any specific conduct, nor are we

given any reason to believe that any of his arrests were based

on allegations of dishonest or untruthful conduct.

The judge’s “law-abiding citizenship” rationale for ad-

mitting this evidence is likewise flawed. Simply put, evi-

dence of a prior arrest does not support a conclusion that the

arrested person has in fact broken the law.

So it’s no surprise that the defendants have all but aban-

doned the impeachment rationale on appeal and argue

instead that the arrest evidence was relevant to the issue of

damages. Their theory is that Nelson’s history of arrests

either mitigated his fear during the traffic stop (because being

arrested was old hat for him) or augmented it (because his

numerous encounters with the police suggest that some of

his emotional injury might have been preexisting). 2

2 It is unclear whether the damages “mitigation” theory offered by the

defendants is viable given the rule that “[t]he tortfeasor takes his victim

as he finds him. That is the ‘eggshell skull’ rule, which like most princi-

ples of the common law of torts is applicable to a constitutional tort case

brought under 42 U.S.C. § 1983.” Richman v. Sheahan, 512 F.3d 876, 884

(7th Cir. 2008) (internal citations omitted).

12 No. 12-3401

We’ve cast doubt on this type of argument before. In Bar-

ber, another false-arrest case, the defense introduced evi-

dence of the plaintiff’s subsequent arrest for the sole purpose

of distinguishing between the damages attributable to the

alleged false arrest at issue in the litigation and those that

might be attributable to the later arrest. 725 F.3d at 708. We

warned against admitting a civil-rights plaintiff’s arrest

history on this theory of relevance:

[It] would seemingly permit any civil-rights

plaintiff’s criminal history to come in on the is-

sue of emotional-distress damages, no matter

how tenuous a connection the evidence has to

the issue of damages or how central a role

emotional distress plays during the plaintiff’s

case. This, of course, would be contrary to our

prior statements instructing courts to proceed

carefully when deciding to admit evidence of a

§ 1983 plaintiff’s criminal past.

Id. at 715. In Barber we held that the relevance of the plain-

tiff’s subsequent arrest was “tenuous at best,” id. at 712,

because his claim for emotional-distress damages was

closely tied to the arrest at issue in the litigation rather than

“any fear of police generally,” id. at 713.

This reasoning applies here in full. 3 Nelson’s arrest histo-

ry had “miniscule probative value” on the question of his

3 The defendants try to distinguish Barber by arguing that the evidence of

the plaintiff’s subsequent arrest in that case was necessarily less probative

of his emotional distress at the time of his false arrest than the evidence

of Nelson’s prior arrests would be here. But in either scenario, the real

question is whether the probative value of the plaintiff’s arrests is

No. 12-3401 13

damages, id. at 714; the arrests were distant in time, and

Nelson carefully limited his claimed emotional injury to the

fear he felt during the 30 minutes of the traffic stop itself.

Although he said he remained angry about the incident

despite the passage of time, he never claimed that the expe-

rience left him fearful of the police more generally.

On the other side of the ledger, the risk of prejudice from

this testimony was enormous. It’s doubtful that the jury

drew the distinction between an arrest and a legal finding of

wrongdoing; where there’s smoke, there’s fire. Even assum-

ing the jury accounted for this distinction, evidence of prior

arrests—here numerous prior arrests—generally impugns

character. And in a false-arrest case, the prejudice is even

greater because it invites the jury to draw a propensity

inference, forbidden by Rule 404(b), that the plaintiff is a

serial law breaker and general troublemaker and the police

must have had probable cause to arrest him. 4 See Barber,

725 F.3d at 714 (noting that that other-arrest evidence in a

false-arrest suit “presents a substantial risk that the jury will

render a defense verdict based not on the evidence but on

emotions or other improper motives, such as a belief that

bad people should not be permitted to recover from honora-

ble police officers”). Even considering the special deference

substantial enough to outweigh the risk of undue prejudice inherent in

this type of evidence.

4 Under Rule 404(b), evidence of “a crime, wrong, or other act” may be

admissible if it is introduced for a purpose other than a propensity

inference, such as “motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident.” FED. R.

EVID. 404(b). The defendants do not contend that Nelson’s prior arrests

were otherwise admissible for any of the purposes listed in Rule 404(b).

14 No. 12-3401

we give to the trial judge’s evidentiary rulings, the evidence

of Nelson’s prior arrests should not have been admitted in

light of the narrow scope of his claimed damages and the

inherent risk of unfair prejudice.

What remains is to decide whether this error was harm-

less. Barber is instructive on this point as well. There we

noted that the damage caused by admitting evidence of this

sort in a false-arrest case is two-fold: First, it encourages the

jury to draw an improper propensity inference that the

plaintiff’s other arrest made it more likely that he was com-

mitting some crime on the day of the arrest in question; and,

second, it “provide[s] powerful ammunition to support a

jury argument that [the plaintiff] is a despicable human

being who should not be permitted to recover from the

angelic police officers being wrongly sued.” Id. at 717.

Because the trial “boiled down essentially to a credibility

contest between [the plaintiff] and the two officers,” we held

in Barber that the error was not harmless, and a new trial was

required. Id. at 715.

The risk of an improper propensity inference was even

greater here. The jury heard that Nelson had been arrested

numerous times, making him appear particularly unsympa-

thetic. The trial turned entirely on his credibility, so the harm

caused by improperly admitting this damaging evidence

would naturally be substantial. In Barber the jury was in-

structed to limit its use of the other-arrest evidence to the

question of damages; we held that the instruction did not

cure the error. Id. at 716–17. Here there was no limiting

instruction.

The defendants offer a couple of counterarguments but

we find them unavailing. They argue that the evidence of

No. 12-3401 15

Nelson’s other arrests could not have been too prejudicial

because it was elicited in a single cross-examination ques-

tion. But that single question was especially damning,

referring to “numerous” prior arrests. The defendants also

direct us to Sanchez v. City of Chicago, 700 F.3d 919, 931–32

(7th Cir. 2012), in which we found the admission of prior-

arrest evidence to be harmless error. But that case is distin-

guishable along several dimensions, not least because the

judge gave an appropriate limiting instruction. 5 The errone-

ous admission of Nelson’s prior arrests was not harmless.

B. Nelson’s Other Lawsuits

This wasn’t Nelson’s first time as a civil plaintiff. He had

previously filed two lawsuits arising out of minor traffic

accidents, including one against the Chicago Police Depart-

ment after he was accidentally hit by a police car. That case

settled for $6,000. Nelson also sued the City twice under

§ 1983 for alleged civil-rights violations. In one action, Nelson

v. Balesteri, No. 06CV6316 (N.D. Ill. 2007), he claimed that

police illegally searched his unoccupied parked car and

home and later falsely arrested him. As we’ve noted, the City

settled that case for $34,000; the State’s Attorney’s Office also

instituted a grand-jury investigation against the officers

involved. See id. at ECF No. 23. The other civil-rights suit,

5 The defendants argue that Nelson waived his objection because the

judge said she would consider a limiting instruction on this issue if

Nelson presented one, but Nelson’s attorney moved for a mistrial

instead. The judge denied the mistrial motion but prohibited the parties

from referring to the prior arrests in closing argument, calling the entire

subject “a red herring.” We’re satisfied that Nelson’s motion in limine

and his continuous objection to this evidence during trial adequately

preserved this issue.

16 No. 12-3401

Nelson v. Salgado, No. 09CV5357 (N.D. Ill. 2012), involved an

alleged use of excessive force by police during an investiga-

tive detention, which aggravated Nelson’s pre-existing

shoulder injury. That litigation was pending when this case

went to trial. In 2012 a jury found for Nelson and awarded

compensatory damages of $30,000 and $5,000 in punitive

damages. Id. at ECF No. 109.

Nelson’s motion in limine sought to exclude any refer-

ence to his other lawsuits. The judge granted the motion in

part, barring evidence of the other suits unless Nelson

opened the door to their use as impeachment evidence. After

Nelson concluded his direct testimony, the defense attorney

sought permission to cross-examine him about the prior

lawsuits, arguing that Nelson had opened the door by

“making it seem this [arrest] was so traumatizing for him.”

The judge agreed: “If the fact is he also had other episodes

that generated complaints, the jury is entitled to consider

that, because if he’s fearful from other episodes, those are

episodes that are not related to these defendants.”

The defense attorney’s first question on cross-

examination was, “Mr. Nelson, isn’t it true that this is not

your first lawsuit against Chicago Police?” Nelson answered

in the affirmative, and counsel continued on this subject for

several more questions: “And in all these cases, you allege

the police did things that were wrong to you?” and “[Y]ou

also have a case currently pending in another courtroom

against Chicago Police?” On recross the defense attorney

returned to this subject, asking Nelson if the same lawyer

was representing him in his other cases.

No. 12-3401 17

Based on this line of questioning, Nelson’s attorney

moved for a mistrial. The judge denied the motion but

issued the following admonition to the jury:

You have heard evidence that … Larry Nelson

has filed lawsuits against the City of Chicago.

A person is entitled to file a lawsuit. There is

no evidence that any of his other claims were

not valid. You may consider this evidence only

in deciding whether Larry Nelson’s testimony

concerning his damages is truthful in whole, in

part, or not at all.

Despite this limiting instruction, Nelson’s litigiousness was a

major theme of the defense. To give a flavor, we note a few

assertions from the defense attorney’s closing argument:

• It’s his burden. He knows that. He’s done

this before.

• He’s working with the lawyer that sues the

police.

• Why would he go through this litiga-

tion? … Because he’s been paid before.

That’s why. And he’s wanting it again.

• [Nelson claims] garden variety mental inju-

ries with no evidence to support it. And it’s

the same kind of injuries he’s suing the

[C]ity for in other cases.

In her ruling on Nelson’s posttrial motion, the judge ex-

plained that the evidence of the other lawsuits was admissi-

ble because it “went to whether or not these Defendants and

this incident were the source of Plaintiff’s injuries” and also

countered the idea that he enjoyed a “cordial relationship”

with the police. These are essentially the same impeachment

18 No. 12-3401

and damages rationales offered to admit evidence of Nel-

son’s arrest history, so our analysis proceeds similarly.

As a general matter, “a plaintiff’s litigiousness may have

some slight probative value, but that value is outweighed by

the substantial danger of jury bias against the chronic liti-

gant.” Mathis v. Phillips Chevrolet, Inc., 269 F.3d 771, 776 (7th

Cir. 2001) (quotation marks omitted). There are rare excep-

tions when the evidence is admitted for reasons other than

to show the plaintiff’s litigious character and it is sufficiently

probative to survive Rule 403 balancing. For example, in

Gastineau v. Fleet Mortgage Corp., 137 F.3d 490, 495 (7th Cir.

1998), a workplace sexual-harassment suit, we affirmed the

district court’s decision to admit testimony that the plaintiff

had sued three of his former employers because the evidence

was probative of his “modus operandi of creating fraudulent

documents in anticipation of litigation.” We also noted that

the evidence helped explain why the employer in that case

had kept a detailed record of the plaintiff’s actions. Id.

Finally, the evidence provided insight into the plaintiff’s

mental state and alleged damages because he had not men-

tioned the earlier suits to his expert psychologist. Id.

Here, however, neither of the reasons for admitting this

evidence holds up. We fail to see how evidence of Nelson’s

other suits qualifies as impeachment. Nothing in his direct

testimony could be contradicted by evidence that he had

filed other suits against the City. The judge apparently

thought that Nelson’s testimony about his public-service

experience left a general impression that he had a “cordial

relationship” with local police. But Nelson never claimed to

have wholly placid relations with the Chicago Police De-

partment. Rather, he testified: “I complain when I see some-

No. 12-3401 19

thing wrong, I fully do. … If I see the officer doing wrong, I

complain about it. If they[’re] doing right, I praise them for

doing the[ir] jobs.”

The damages rationale fares no better. Without knowing

more about the facts underlying the prior suits, there’s no

way for the jury to meaningfully evaluate this evidence vis-

à-vis Nelson’s claimed damages in this case. The City had no

interest in putting the facts of the prior lawsuits before the

jury, so it’s not surprising that it did not do so. As such, the

only possible purpose for admitting this evidence was to

brand Nelson as a litigious person who (at best) had thin

skin or (at worst) had a vendetta against the Chicago Police

Department and was gaming the system to make an easy

buck. Those inferences are especially prejudicial in a false-

arrest suit with no third-party witnesses because the plaintiff

is always vulnerable to the accusation that he made every-

thing up. The gratuitous question about Nelson’s lawyer—

apparently meant to suggest the attorney and her client were

in cahoots in a scheme to defraud the City—compounded

the prejudice.

The defendants insist that Nelson’s testimony about his

favorable settlements with the City would lead the jury to

conclude that his earlier claims were meritorious. Maybe so;

but we think there’s a significant chance that the jury also

concluded that the City had paid Nelson enough already.

That was certainly the thrust of the defense attorney’s clos-

ing argument. The evidence of his prior lawsuits should not

have been admitted.

Though wrongly admitted, this evidence was accompa-

nied by a limiting instruction, and that has a bearing on the

harmless-error inquiry; we presume that “juries follow their

20 No. 12-3401

instructions.” Barber, 725 F.3d at 717. But “[a]t some point

judicial presumptions must give way to common sense, and

the formulaic recitation of a pro forma limiting instruction

may not suffice to cure an error.” Id. Here, the prejudice

engendered by the erroneous admission of the evidence of

other lawsuits was significant enough that the presumption

must give way. The defense attorney’s questions on this

subject were multiple and inflammatory. The repeated

references to Nelson’s other lawsuits during closing argu-

ment were clearly intended to undermine Nelson’s credibil-

ity and stir juror bias against him as a chronic litigant.

Indeed, the evidence of Nelson’s other lawsuits went to the

heart of the defense theory of the case: that Nelson had

fabricated his story and was using it to “con” the jury into

giving him money. The error was not harmless.

C. Officer Novotny’s Testimony

During Nelson’s case-in-chief, Officer Novotny testified,

consistent with his judicial admission, that he had no recol-

lection of the traffic stop. On cross-examination, however,

his attorney asked him to “tell the ladies and gentlemen of

the jury some of the circumstances by which you pull a

handgun on an individual in a traffic stop.” Nelson objected,

but the judge allowed Novotny to answer, though she gave

the jury the following admonition: “Ladies and gentlemen,

the testimony you are about to hear is general background

information, it’ll be very brief, and it’s not intended to

suggest that any of these circumstances existed on the

evening in question. This witness has no recollection.”

The testimony was not brief. Officer Novotny began by

telling the jury that if “I felt for any reason that my safety

was in jeopardy or my partner[’s] safety was in jeopardy, by

No. 12-3401 21

all means, I would have my handgun out of the holster and

at least in a ‘ready’ position.” His attorney then asked him to

explain the circumstances in which he might have good

reason to point his gun at someone during a traffic stop. He

answered,

[I]f we ran the license plate and there was a

LEADS message that contained the message

that said “armed and dangerous,” “known to

fight with police,” “known to try to disarm the

police.” These are all common messages that

they attach to the LEADS message when you

run a license plate.

If for some reason the driver or the occupant

was making [furtive] movements in the vehi-

cle, meaning reaching under the seat, ignoring

verbal direction, it would put us officers on

high alert. We would definitely feel our safety

was in jeopardy at that point. You know, it’s a --

to obtain a weapon? You know, we don’t know

on the traffic stop.

That’s not all. The defense attorney asked Officer No-

votny to identify circumstances that might give an officer

cause to search a stopped vehicle. He replied that if “our

safety was in jeopardy”—say, for example, if the occupants

made “[furtive] movements[,] … we could ask the occupants

to exit the vehicle and do a plain-view search of the vehicle

for weapons.” He went on to explain why Nelson’s descrip-

tion of the search was not believable:

It would be such a disregard for safety if four

officers -- if the only officers on the scene, I’m

assuming, turn their backs on a subject who

22 No. 12-3401

was in cuffs for a reason that there was a risk

already and for four people to ignore him and

search a car, not to mention the fact that it

wouldn’t take four officers to search one vehi-

cle. We would never practice anything like

that.

Finally, Officer Novotny was asked to identify circum-

stances that might justify handcuffing the driver or a pas-

senger during a traffic stop. He testified that “[i]f at that time

they’re not listening to verbal direction by keeping their

hands where you know where they’re at so they … wouldn’t

retrieve a weapon and then try to harm you or your part-

ner.”

In her posttrial ruling, the judge explained that this

“background” testimony from Officer Novotny was admis-

sible because it was “phrased in a clearly hypothetical

fashion” and the risk of prejudice was low. She also observed

that because the defendants “have no recollection of the

incident in question, there is very little evidence they can

offer beyond illustrating how Plaintiff’s account of the

incident departs from official procedure.”

Nelson argues that admitting this testimony was reversi-

ble error, and again we largely agree. We note for starters

that evidence of a person’s “habit” is admissible to prove

that he acted in accordance with the habit on a specific

occasion, FED. R. EVID. 406, but neither the defendants nor

the district court relied on this rule as a basis to pursue this

line of questioning. That’s understandable. “[B]efore a court

may admit evidence of habit, the offering party must estab-

lish the degree of specificity and frequency of uniform

response that ensures more than a mere ‘tendency’ to act in a

No. 12-3401 23

given manner, but rather, conduct that is ‘semi-automatic’ in

nature.” Simplex, Inc. v. Diversified Energy Sys., Inc., 847 F.2d

1290, 1293 (7th Cir. 1988); see also Thompson v. Boggs, 33 F.3d

847, 854 (7th Cir. 1994) (noting the Federal Rules of Evidence

Advisory Committee’s position that habit “describes one’s

regular response to a repeated specific situation”). The

defense never made this showing, and it’s hard to see how

Rule 406 can be applied in this particular context. A police

officer’s decision to draw his gun, use handcuffs, or search a

car during a traffic stop can hardly be characterized as

“habitual” or “semi-automatic.” Indeed, the judge’s instruc-

tion to the jury—that Officer Novotny’s testimony was “not

intended to convey what actually happened”—is incon-

sistent with the proper use of habit testimony, which is

intended to show that the person acted in accordance with

his habit on a particular occasion.

Nelson argues that Officer Novotny’s “background” tes-

timony was speculative and contradicted the defendants’

judicial admissions that they had no recollection of stopping

Nelson. 6 To evaluate this argument, it’s helpful to divide

Officer Novotny’s testimony into three categories. The first is

testimony that was flatly incompatible with the agreed facts

6 “Judicial admissions are formal concessions in the pleadings, or

stipulations by a party or its counsel, that are binding upon the party

making them. … Indeed, they are ‘not evidence at all but rather have the

effect of withdrawing a fact from contention.’” Keller v. United States,

58 F.3d 1194, 1198 n.8 (7th Cir. 1995) (quoting [30B] MICHAEL H. GRAHAM,

FEDERAL PRACTICE AND PROCEDURE: EVIDENCE § 6726 (Interim Ed.)

(currently found at § 7026)).

24 No. 12-3401

of the case. This includes Officer Novotny’s testimony that

an officer would have his gun in the “ready” position if a

LEADS warning indicated that a driver was “armed and

dangerous,” “known to fight with police,” or “known to try

to disarm police.” As we’ve explained, the defendants

entered formal judicial admissions that the LEADS database

said nothing of the sort about Nelson, and the computer logs

confirmed it. As a result, the “hypothetical” LEADS warn-

ings Officer Novotny described could not possibly have

made Nelson’s account of the stop any more or less probable.

This testimony should not have been permitted.

The second category is the testimony that directly con-

tradicted specific parts of Nelson’s account of the stop. This

includes Officer Novotny’s assertions that “it wouldn’t take

four officers to search one vehicle” and “[i]t would be such a

disregard for safety if four officers [would] … turn their

backs on a subject who was in cuffs.” This testimony was

relevant because it provided specific reasons, grounded in

the officer’s training and experience, to doubt some of the

particulars of Nelson’s account of the stop as he recounted it

on the witness stand. Indeed, Nelson doesn’t challenge the

admission of these specific statements.

The third category includes testimony that was not con-

clusively refuted by judicial admission or undisputed evi-

dence but also was not clearly related to the circumstances of

Nelson’s stop. For example, Officer Novotny testified that

officers would put their guns in the ready position during a

traffic stop if someone in the stopped car made furtive

movements. He also testified that the driver of a stopped car

might be handcuffed if he did not obey an officer’s orders. In

the context of this case, this testimony was entirely specula-

No. 12-3401 25

tive: It posits that if the events Nelson described actually

happened—if guns were drawn, if he was handcuffed, if his

car was searched, etc.—here are some possible factual cir-

cumstances that would provide justification. But of course

Officer Novotny doesn’t know if any of these things actually

happened; none of the officers do. The only possible purpose

and effect of this testimony was to invite the jury to specu-

late that Nelson acted in the ways Officer Novotny de-

scribed.

And this speculative testimony was heavily prejudicial.

Officer Novotny presented a worst-case scenario involving

furtive movements, hidden weapons, and disobeyed orders,

but without any reason to believe that Nelson engaged in

this behavior, was otherwise dangerous, or that the officers’

safety was threatened during this stop. Associating Nelson

with this kind of suspicious behavior—without any factual

basis whatsoever—was plainly prejudicial to him and likely

stimulated sympathy for the officers. This testimony bore

only a speculative link to Nelson’s stop and should not have

been permitted.

Was this testimony harmless? On one hand, the testimo-

ny was specifically framed as hypothetical, and the judge

gave two limiting instructions to that effect. With respect to

the LEADS testimony in particular, the jury had the defend-

ants’ judicial admissions as well as testimony from all four

officers that the LEADS system did not in fact provide any

reason to stop Nelson or to suppose that he might be armed

and dangerous. On the other hand, as we’ve just explained,

it was highly prejudicial to associate Nelson with the most

dangerous class of suspects officers might encounter in a

traffic stop.

26 No. 12-3401

If Officer Novotny’s “background” testimony were the

only evidentiary error at this trial, the harmlessness question

might be closer. But harmlessness is evaluated “in light of

the entire record,” and “[w]here there are several errors,

each of which is harmless in its own right, a new trial may

still be granted if the cumulative effect of those otherwise

harmless errors deprives a litigant of a fair trial.” Barber,

725 F.3d at 715 (quotation marks omitted). We’ve already

concluded that a new trial is warranted because other evi-

dence was erroneously admitted. The error in admitting

Officer Novotny’s speculative testimony only bolsters that

conclusion.

Accordingly, for all the foregoing reasons, the judgment

is REVERSED, and the case is REMANDED for further proceed-

ings consistent with this opinion.