Harris v. City of Chicago

• Decision Date: 21 September 2001
• Docket Number: No. 00-2172,DEFENDANTS-APPELLEES,PLAINTIFF-APPELLANT,00-2172
• Citation: 266 F.3d 750
• Parties: (7th Cir. 2001) THOMAS E. HARRIS,, v. CITY OF CHICAGO AND ALEX D. RAMOS, OFFICER, INDIVIDUALLY, AND AS A POLICE OFFICER FOR THE CITY OF CHICAGO, ILLINOIS,
• Court: U.S. Court of Appeals — Seventh Circuit

Page 750

266 F.3d 750 (7th Cir. 2001)

THOMAS E. HARRIS, PLAINTIFF-APPELLANT, v. CITY OF CHICAGO AND ALEX D. RAMOS, OFFICER, INDIVIDUALLY, AND AS A POLICE OFFICER FOR THE CITY OF CHICAGO, ILLINOIS, DEFENDANTS-APPELLEES.

No. 00-2172

U.S. Court of Appeals, Seventh Circuit

Argued April 3, 2001

Decided September 21, 2001

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 97 C 684--Blanche M. Manning, Judge.

Before Posner, Kanne, and Rovner, Circuit Judges.

Kanne, Circuit Judge.

During discovery in this civil case, defendant-appellee Alex Ramos refused to respond to a number of discovery requests, instead invoking his Fifth Amendment privilege against self-incrimination. At trial, however, Ramos answered all questions posed to him on direct and cross-examination, and all evidence of his prior silence was excluded. After a jury verdict for the defendants, plaintiff-appellant Thomas Harris moved for a new trial contending that the effect of these two rulings--permitting Ramos to respond to questions that he had previously refused to answer while simultaneously excluding evidence of Ramos's prior silence--allowed Ramos to avoid the discovery process altogether. Because we agree that the district court committed prejudicial error, we reverse and remand for a new trial.

I. History

On December 7, 1993, Chicago police officer Alex Ramos--who was also a part-time YMCA security officer--arrested the plaintiff, Thomas Harris, at his YMCA residence. The parties vigorously dispute the events giving rise to the arrest. Harris contends that Ramos forced his way into his apartment, placed him under arrest, and placed a small amount of cocaine on his person. He claims that he was falsely arrested because, a few days earlier, he had refused to help Ramos convert stolen drugs into cash. For his part, Ramos claims that he was walking by Harris's apartment when he overheard what he believed to be a drugs-for-sex transaction occurring inside. According to Ramos, as he was standing outside Harris's doorway, the door suddenly flung open and a woman ran out. Ramos alleges that he observed drugs and drug paraphernalia inside Harris's room and that, after a struggle, he forced his way into Harris's room and arrested him. Pursuant to the charges brought by Ramos, Harris was incarcerated at the Cook County Jail for over 400 days. The State of Illinois dropped all charges against Harris on February 20, 1997, however, after Ramos was arrested and charged with a number of criminal offenses including racketeering, extortion, carrying a firearm during a drug crime, and possession with intent to distribute crack cocaine.

Harris filed suit against Ramos and the City of Chicago pursuant to 42 U.S.C. sec. 1983 alleging, inter alia, claims of federal and state law malicious prosecution. On October 15, 1997, the district court granted a stay of discovery until the criminal charges pending against Ramos were resolved. On May 21, 1998, Ramos was found guilty of each of the criminal counts against him, and, shortly thereafter, the district court lifted the stay.

After the stay was lifted, Harris served written discovery requests on Ramos. Invoking his Fifth Amendment privilege against self-incrimination, Ramos refused to answer any of plaintiff's interrogatories, document requests, or requests to admit.¹ On the advice of counsel, Ramos again refused to give any testimony at his scheduled deposition on July 31, 1998. Harris moved to compel, and the district court granted the motion on August 12, 1998. Ramos was consequently re-deposed on September 28, 1998. At his second deposition, Ramos selectively invoked his Fifth Amendment privilege. He refused to answer any questions about the time frame of his criminal activities, his criminal convictions, and whether his encounter with Harris was part of a criminal enterprise for which he was convicted. Harris then filed another motion to compel, arguing that Ramos had invoked the Fifth Amendment to avoid answering several questions which could not possibly incriminate him. Pursuant to Harris's motion, the court ordered Ramos to respond in writing to any questions to which he had inappropriately invoked the Fifth Amendment. At no time before the close of discovery on November 25, 1998, did Ramos or his counsel attempt to amend or supplement Ramos's interrogatory responses or produce any documents.

The case proceeded to trial on February 17, 1999. At trial, Ramos waived his Fifth Amendment privilege and answered all questions posed to him on direct as well as on cross-examination, including questions which he had previously refused to answer. Over the objection of Harris's counsel, the district court barred Harris from impeaching or cross-examining Ramos with his prior silence. On February 26, 1999, the jury returned a verdict for the defendants. Harris filed a motion for a new trial, arguing that the district court abused its discretion by precluding evidence of Ramos's invocation of the Fifth Amendment. The district court denied the motion, and Harris now appeals.

II. Analysis

A. Standard of Review

On appeal, Harris contends that the district court should have granted a new trial because allowing Ramos to testify at trial while excluding any evidence of his prior silence allowed the defendants to avoid the discovery process "with impunity." We review the denial of a motion for a new trial for abuse of discretion. See Goodwin v. MTD Prods., Inc., 232 F.3d 600, 606 (7th Cir. 2000). In order to ascertain whether the district court improperly refused to grant a new trial in this case, we must first determine whether the challenged ruling was "prejudicial error." Romero v. Cincinnati Inc., 171 F.3d 1091, 1096 (7th Cir. 1999). We now turn to that question.

B. Exclusion of Ramos's Prior Silence

The district court ruled that Harris would not be allowed to present evidence of Ramos's invocation of the Fifth Amendment to the jury despite the well-settled principle that "the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them." Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976); see also LaSalle Bank Lake View v. Seguban, 54 F.3d 387, 389-91 (7th Cir. 1995) ("The rule that adverse inferences may be drawn from Fifth Amendment silence in civil proceedings has been widely recognized by the circuit courts of appeals, including our own."). The reason for the district judge's ruling is not clear from the transcript or from the order denying a new trial,² but the parties agree that the district judge most likely excluded the evidence because she determined that the prejudicial effect of Ramos's prior silence substantially outweighed its probative value. See Fed. R. Evid. 403.

Whether this evidence was properly excluded under Rule 403 depends on the timing of Ramos's abandonment of the Fifth Amendment privilege with respect to the events leading up to Harris's arrest. If--as defendants contend--Ramos waived his privilege well before trial and agreed to testify to matters concerning Harris's arrest, then Harris had sufficient opportunity to obtain discovery from Ramos on all issues related to the trial. Thus, the probative value of Ramos's prior silence was extremely low and the district court was justified in excluding it pursuant to Rule 403. See Fed. R. Evid. 403. On the other hand, if--as Harris claims--Ramos refused to answer any questions about his encounter with the plaintiff until just prior to trial, it was error for the district court to exclude Ramos's prior silence because the effect of such a ruling would be tantamount to allowing Ramos to avoid discovery altogether. See McGahee v. Massey, 667 F.2d 1357, 1362 (11th Cir. 1982) ("A defendant cannot have it both ways. . . . [He may not] testify in attack . . . and at the same time seek refuge behind the shield of the Fifth Amendment."). In that situation, the district court should have either prevented Ramos from testifying to matters about which he had previously refused to testify or allowed Harris to impeach him with his prior silence on those matters.

As indicated above, defendants argue that the district court's ruling was proper because Ramos waived his Fifth Amendment privilege well before trial.³ They assert that Ramos was ready and willing to testify about the events surrounding his encounter with Harris at his September 28, 1998 deposition. According to the defendants, Ramos did not testify about these events at his deposition because Harris failed to phrase his questions narrowly enough to avoid an invocation of the Fifth Amendment. We cannot agree. First of all, defendants' contention that Ramos was willing to speak freely at the September 28, 1998 deposition is belied by the fact that, at that deposition, Ramos invoked the Fifth Amendment in response to several general questions which could not possibly have incriminated him.⁴ Defendants also gloss over the fact that Ramos never amended or supplemented any of his interrogatory responses, nor did he ever produce a single document during discovery. Rule 26 of the Federal Rules of Civil Procedure provides that: "a party is under a duty seasonably to amend a prior response to an interrogatory, request for production, or request for admission if the party learns that the response is in some material respect incomplete or incorrect." Fed. R. Civ. P. 26(e)(2). Thus, Harris was entitled to assume that Ramos's interrogatory responses had not changed, and rely on those answers in preparing for deposition. Absent an effort by Ramos to clarify where he asserted the privilege and where he did not, it was not unreasonable for Harris to assume that Ramos's position with respect...