3.4.09 Gettleman Transcript

8/14/2019 3.4.09 Gettleman Transcript

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IN THE UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DONNA MOORE, as legalcustodian of her son, J.M., aminor, and her daughter, A.M.,a minor,

Plaintiffs,

vs.

ROBERT SMITH, JAMES EVITT,CITY OF CHICAGO, STACEY SMITH,

and EDWIN GORMAN,Defendants.

)))))))))))

)))

No. 07 C 5908Chicago, IllinoisMarch 4, 20099:15 a.m.

TRANSCRIPT OF PROCEEDINGS - MOTION

BEFORE THE HONORABLE ROBERT W. GETTLEMAN

APPEARANCES:

For the Plaintiff: PEOPLE'S LAW OFFICE1180 North Milwaukee Avenue

Chicago, Illinois 60622BY: MR. G. FLINT TAYLOR, JR.MR. BENJAMIN H. ELSON

For Defendant City: DYKEMA GOSSETT PLLC10 South Wacker DriveSuite 2300Chicago, Illinois 60606BY: MR. TERRENCE M. BURNS

MR. DANIEL M. NOLAND

For Defendant City: CITY OF CHICAGO

30 North LaSalle StreetChicago, Illinois 60602BY: MS. RITA C. O'CONNOR

Official Reporter: JENNIFER S. COSTALES, CRR, RMR219 South Dearborn StreetRoom 1706Chicago, Illinois 60604(312) 427-5351


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(Proceedings in open court.)

THE CLERK: 07 C 5908, Donna Moore versus Officer Smith,

motion for sanctions, motion to supplement.MR. BURNS: Good morning, Your Honor.

Terrence Burns and Daniel Nolan appearing on behalf of

the City of Chicago.

MS. O'CONNOR: Rita O'Connor on behalf of the City.

MR. TAYLOR: Good morning, Judge.

Flint Taylor and Ben Elson on behalf of the plaintiff.This is our motion or motions, Judge. It's a motion for

sanctions and also a motion to supplement.

THE COURT: Well, I'll grant the motion to supplement.

Mr. Burns has already supplemented. I got it very late

yesterday, I got a pleading from him, which I've reviewed this

morning.Well, is there anything you want to add, Mr. Taylor?

MR. TAYLOR: Well, Judge, I take it that you've read our

motion, and I don't need to rehash what are both our factual

predicate and our relief that we seek is. We're seeking

sanctions as we've both illuminated in the motion for an

eight-month pattern of delay and obstruction that culminated inthe direct and now admitted defiance of orders by this Court and

by Judge Valdez by the city itself and by its chief policy-making

police official, Mr. Weis.

We think that we've made out in the pleading bad faith.


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The Seventh Circuit has said deliberate defiance of an order

itself is bad faith. But we feel that also the false

representations to counsel, us, and to the Court, Judge Valdezparticularly, over a period of time that the City would comply if

and when all of these various motions to reconsider had been

dealt with, and then, in fact, they had no intention apparently

of doing so, as soon as they reached the end of the line, they

filed the Weis document which, in fact, said: Thanks, but no

thanks, we will not comply.I think also the bad faith is shown, Judge, by the

transparent and often rejected reason posited by the chief of

police and the City previously, that being the fact of privacy,

safety, and morale, Judge. You rejected on a couple of

occasions, Judge Valdez rejected it on a couple of occasions, and

then Mr. Weis brought it in again.I think this is a simple two-word answer that the Court

gave for that, and that was protective order. They make a big

deal about how this is somehow going to bother morale, it's going

to bother safety, when, in fact, the documents are being turned

over to us, not turned over to the public. The Court recognized

that last time we were in court here. So that's an argumentthat's very transparent. It's one that shouldn't have been

repeated, and certainly shouldn't be the basis for a contemptuous

activity by Mr. Weis.

And I also want to say, Judge, that they attempt to put


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us in a bag that the only reason that we want these documents is

so we can check them with prior lists so that we can see if there

is a repeater that perhaps spans 10, 15, 20 years. But as weargued from the beginning, and as Judge Valdez found in her

order, I believe her October order, that that was only one of

several reasons why we need these documents.

Obviously we want to do case histories. We want to

study the worst repeaters. Judge, we're talking about repeaters,

if I might, they did give us lists without names, we're talkingabout ones with 65 CRs. We're talking about ones with 62 CRs and

14 excessive force; 44 CRs, 20 excessive force. I can go right

down the list.

And we're talking about, Judge, a list not of thousands

of officers that have six or more excessive force complaints, 199

officers are on that list. And we're talking about, Judge, thegreater list that they gave us of the six or more that have --

that aren't limited to excessive force. We're talking about 2500

officers. So then we have 11,000 officers that aren't on those

lists, Judge.

And, in fact, the reason that we picked that amount of

officers, of complaints was because that's the amount that theCity always looked at when they were evaluating repeaters. That

doesn't mean that we're going to deal with or care about 2500

repeaters. But we have to find the worst in that, not only in

numbers but in what they did.


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If we don't have their names, we can't look at their

backgrounds in terms of civil suits. We can't look at who their

partners are. We can't look at the sustained, not sustained,what the police board did. All of those things, Judge, require

that we get the names. And as you pointed out, in the past,

we've never had a problem with it, and we don't intend to have a

problem with it with these lists either.

And so as Judge Valdez recognized, and she used the term

"repeater" as well, it's for the jury, the experts, and theplaintiffs' lawyers to determine among those on the list who are

the ones that are the worst of the worst. And that's the ones

that we're concerned with. Those are the ones we want to show

they were not properly disciplined. And that's why it's so

important to our case and to our Monell claim.

And that's why, Judge, we've asked for the sanctionsthat we've asked for. We've asked for the sanction of finding of

the various allegations we've made in our complaint with regard

to Monell as admitted. We've asked that based on those findings

that default be entered on the City on that claim. We've asked

that there be certain monetary sanctions to pay us for these

eight to ten months of going around the merry-go-round again andagain and again and again and again hearing the same arguments

and dealing with them. We've asked for it to be enhanced as a

punishment. And we've also asked for discovery on the issue of

bad faith, because the City has not, in fact, conceded, and that


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discovery would include the deposition of Jodi Weis.

Finally, Judge, I would point to the fact that the City

itself cites a case, and the case says there is three things tolook at for sanctions: Prejudice, deterrence, and punishment.

Prejudice, I think it's obvious. We've spent ten

months, we've spent hundreds of hours chasing this evidence that

should have been ours from the beginning. You look at 20 years

of history, Judge, and each time we've sought this evidence, the

City has turned it over until this time. And they then playedgames with us for eight to ten months before they then took the

position in court that they took.

Secondly, as the City points out in the Seventh Circuit

case, deterrence, and the third is punishment, well, Judge, in

both of those instances, we're not talking about some individual

litigant here who comes before the Court once. We're talkingabout the City of Chicago. We're talking about the police chief.

And we're talking about the Corporation Counsel of the City of

Chicago.

There are other cases, important cases before Judge

Shadur, before other judges in this courtroom where similar

issues are being litigated. If the City is allowed to get awaywithout sanctions in this case, there will be no deterrence to

the City in other cases.

And as well in terms of punishment, in terms of

punishment, Judge, there has to be some recrimination for this


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has been consistently from the beginning to this point in time a

statement as to why we feel the names of the officers become

irrelevant.The fact is as I listened to counsel's argument, he

seemed to be saying that very thing, "I don't need 10,000 names.

I just need a select number," something that we have offered to

him throughout the discovery. We would sit down, work with him

in terms of the disclosure.

I should also point out, Your Honor, we have, in fact,provided those names, albeit in redacted fashion where we

separate the names of the officers. But we've also held out to

counsel that we would sit down and work with him with regard to

certain names that appeared on prior lists and now reappear on

the current list to try to come to some resolution so he would

not be prejudiced in the prosecution of this case.In terms of this case, it seems as though that counsel

is asking for extreme remedies. When you seek to look what is

the prejudice to him, how is this defeating his opportunity to

present his claim, he has the statistical information. We talked

about that when we were before you on the last time, so I won't

repeat that information to the Court. But that's informationthat he does have, is available.

If there is something further beyond that, we're going

to work with him, and we can work together. But, again, as I

heard the argument today, those additional names of people who


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have nothing to do with this case, are not of central concern,

why are we disclosing their names? It becomes irrelevant to the

prosecution at hand.We have always indicated to counsel that we would work

with him and try to resolve this. This is something when we come

to the Court, I recognize the Court's position, we ask that the

sanctions, whatever the Court is considering, that they not be

extreme. And I think the citations that counsel has suggested

are extreme given the nature of what's occurred.Keeping in mind that this is not as he's suggested a

fabricated or manufactured suggestion to the Court, the

Superintendent would not, he has tremendous regard for this

Court, and law enforcement would not come before the Court

without a legitimate reason and express the view that it did.

When this happened, we immediately filed with this Courtthe statement from the Superintendent as to his basis and his

reason. And those were in good faith. They have been in good

faith. They have been consistent throughout the pendency of this

litigation, Your Honor.

I ask the Court to consider that as well as the other

factors that are raised throughout the process.While counsel can ridicule the Superintendent, call it

transparent, belittle what his reasoning is, his reasons are

legitimate. They are privacy, morale, and safety concerns that

he raised via his declaration and the recent statement to the


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Court.

THE COURT: Mr. Burns, let me just -- I don't need a

reply -- let me just tell you a couple of things. First of all,you know we've had a history together. You've appeared in many

cases and done a fine job, and I respect your professionalism and

your competence. It has nothing to do with you.

But everything you just said is almost irrelevant. That

horse is out of the barn. Those issues have been decided. You

yourself acknowledged that you'd be producing the documents, thisis on February 17th, that you were ready to do so, that you had

them. You'd been ordered to do so. And you said you'll abide by

whatever decision I make on the motion.

This is basically a fourth motion to reconsider Judge

Valdez's ruling. I've reconfirmed it now three times. I'm

reconfirming it again.The document that you filed on behalf of the City, I

mean, you have some explaining to do about why you said, made a

representation to the Court which apparently was incorrect,

that's number one. Number two, your statement, the statement

that Jodi Weis -- is it Weis or Weis?

MR. BURNS: Weis.THE COURT: -- Weis and his affidavit filed with the

Court, document number 184 on February 20th, is basically in my

view a direct contempt of the Court. It's not even an indirect

contempt.


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I know that Mr. Taylor hasn't asked for a finding of

contempt. He doesn't have to. I believe it's the Court's

responsibility, regardless of the civil sanctions that may beimposed in this case or any other, to protect the integrity of

its orders. And this is, it's more than flaunting the order,

it's saying I am going to be in contempt of the Court.

If this is some strategy to get a discovery order, and I

agree with Mr. Taylor, a rather routine discovery order given the

history of this type of litigation in this court, to be reviewedby the Court of Appeals, it is ill advised in my view.

We have the chief law enforcement officer of the City of

Chicago basically picking and choosing the orders of the federal

court that he will obey or disobey, and he's chosen to disobey

this order. I believe he is in direct contempt of the Court.

It's not even a rule to show cause situation, because he has toldme he will not obey the order of the Court to turn over these

documents, which as Mr. Taylor points out are very much or

identical to the type of documents that he has turned over, that

the City of Chicago has turned over on at least 29 occasions that

you know of and probably more and that we've dealt with before.

I don't care whether your sensitivities about the namecalling that you accuse the plaintiffs' lawyers of doing might

somehow hurt morale. I don't know how that happens. There is a

lot worse names that are leveled at the police in this City than

"repeater." But even crediting Mr. Weis with a good-faith belief


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that this would hurt morale, it's his job to deal with his own

officers.

And I respect the police department in this City, and Irespect Mr. Weis's job, it's a tough job. But it makes it a lot

tougher when he comes into a federal court and says "I'm not

going to obey your order."

You've made your arguments. You've made them repeated

times. The Court has considered them repeatedly. I have

considered them. Judge Valdez has considered them. You reach apoint, just like you acknowledged to Judge Valdez, you know, if I

deny the motion to reconsider, that's it, that's the end of the

game, and we'll turn them over.

All I can assume is that your client didn't agree with

the advice you gave him. So I think I have to do this, I have to

compel compliance with that order. That's my first job before Ieven deal with the appropriate sanctions, and there will be

sanctions, civil sanctions.

But before I deal with that, he is in direct civil

contempt of this Court, and it's my job, just as when other

people on matters of principle, misguided or otherwise, disobey

orders of the Court, we are to take measured steps to enforce theorders before deciding on what type of sanctions to apply.

I am, therefore, directing that the Superintendent be

present in court at 9:00 o'clock on Friday morning so that he can

at least address the Court in person to explain himself to me.


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He has filed an affidavit.

Mr. Taylor wants discovery. I don't know if you need

any discovery. His position is pretty clear.But that affidavit absolutely subjects him to

examination about why he reached those conclusions. I could

order discovery, I think it's just prolonging a very serious

situation and a conflict between the City and the Court that the

Court is going to win. I mean, there is no question about this.

To reargue the merits of this discovery dispute isinappropriate at this time. The order is the order. I'm not

reconsidering it. You have nothing to negotiate with Mr. Taylor

about how to comply with it. You have to comply with it.

So I want the superintendent here at 9:00 o'clock on

Friday morning in person to address the Court.

MR. TAYLOR: Judge, could I ask that it be Monday? I'min Champaign on a deposition. I would very much like to be here.

THE COURT: Well, I want you to be here, too.

MR. TAYLOR: Monday at 9:00 o'clock, would that be all

right?

THE COURT: I'm on trial. But the trial won't begin

until, we usually start at 10:00. So I'm not going to postponethe trial for this. We don't go on Fridays, so that's why Friday

was easier for me.

MR. TAYLOR: I'm really --

THE COURT: Pardon me?


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MR. TAYLOR: I'm really sorry, but I don't think I can

change it. It's very important. A defendant is giving a

deposition.THE COURT: We'll make it Monday at 8:45 so that we have

time enough to do this before we start the trial on that day.

I don't want any more papers. I don't need any more

papers in this case. But I want him here.

I know you've asked for sanctions or you've hinted that

you wanted to ask questions of the Corporation Counsel,Ms. Georges. She's acting as a lawyer whether of record or not,

she probably is of record, and I think that her advice to the

superintendent would be privileged anyway, and I don't think it

will be appropriate. If she's giving him advice, he's the one

who is in contempt, not her. I don't think it would be

appropriate to examine her, unless she's willing to waive theprivilege somehow.

But this is obviously a very serious matter. I don't

want you, Mr. Burns, to be hanging out there the way you are in a

sense, because you made this representation to the Court, and I'm

sure you made it in good faith. But right now I think the only

thing for me to do is to see whether or not I can compelcompliance with this order, and if not, then determine what type

of sanctions to impose both in the civil case itself and by the

Court to compel compliance. So that's what is going to happen.

I'm going to enter and continue, well, your motion to


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supplement is granted. I'll accept your latest filing, which is

document 193, response in opposition.

I don't know whether you want to file a reply. I don'tthink I need one.

MR. TAYLOR: No, I don't think so, Judge. I think that

everything has been aired.

THE COURT: I'll accept that as a response to your

motion. And I'll see you at 8:45 on Monday, March 9th.

MR. TAYLOR: Judge, is it our understanding that youhave held him in contempt or not until you hear from him?

THE COURT: I'm making an observation, because if he

comes in and purges himself of the contempt, then there would not

be a need for a holding.

MR. TAYLOR: Right.

THE COURT: I'm giving him until Monday to do so.MR. TAYLOR: To purge?

THE COURT: Otherwise I think ordinarily if you have a

discovery dispute or, you know, some sort of conflict with an

order, if you've ordered an audit in a collection case or

something like that, and they don't comply, you have a rule to

show cause, because you haven't heard directly from the potentialcontemnor.

In this case I've heard twice now. I have two pleadings

on the record, including an affidavit from the Superintendent

saying that he will not obey an order. I think that's direct


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contempt of Court as if he were standing here and said that.

So I don't know, this is not really a rule to show cause

proceeding. It's a contempt proceeding. And an order ofcontempt will be entered, unless he purges himself of the

contempt on that day.

Very frankly, I think you, Mr. Burns, and Ms. Georges

and everybody else involved with this should take a deep breath

and a step back and try to avoid this type of consequence in a

case like this, which is a fairly routine excessive force case.None of them are totally routine, of course. They're all

important. But in this case, I don't see using this case as a

vehicle to try to test the enforceability of orders of this

Court.

That's all I'm going to say right now, and I'll see you

back here on Monday at 8:45.MR. TAYLOR: Thank you, Judge.

MR. BURNS: Thank you, Your Honor.

(Proceedings concluded.)

C E R T I F I C A T EI, Jennifer S. Costales, do hereby certify that the

foregoing is a complete, true, and accurate transcript of theproceedings had in the above-entitled case before the Honorable

ROBERT W. GETTLEMAN, one of the judges of said Court, at Chicago,Illinois, on March 4, 2009.

/s/ Jennifer Costales, CRR, RMROfficial Court ReporterUnited States District CourtNorthern District of IllinoisEastern Division

3.4.09 Gettleman Transcript

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