Smith II, M.D. v. City of Chicago

• Citation: 242 F.3d 737
• Decision Date: 06 March 2001
• Docket Number: No. 99-2965,99-2965
• Parties: (7th Cir. 2001) Horace E. Smith, II, M.D., Plaintiff-Appellant, v. City of Chicago, a municipal corporation, Milton M. Scott, employee of the Police Department of the City of Chicago, a municipal corporation and Randall Darlin, employee of the Police Department of the City of Chicago, a municipal corporation, Defendants-Appellees
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 737

242 F.3d 737 (7th Cir. 2001)

Horace E. Smith, II, M.D., Plaintiff-Appellant, v. City of Chicago, a municipal corporation, Milton M. Scott, employee of the Police Department of the City of Chicago, a municipal corporation and Randall Darlin, employee of the Police Department of the City of Chicago, a municipal corporation, Defendants-Appellees.

No. 99-2965

In the United States Court of Appeals For the Seventh Circuit

Argued May 31, 2000

Decided March 6, 2001

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 97 C 763--Harry D. Leinenweber, Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Flaum, Chief Judge, and Bauer and Harlington Wood, Jr., Circuit Judges.

Bauer, Circuit Judge.

Smith sued defendants, in relevant part, for unreasonable search and seizure, use of excessive force, and battery, arising from a May 1996 traffic stop. After some to and fro-ing, the case is before us again, so a thumbnail sketch of the facts and case history is needed.

The district court entered summary judgment in defendants' favor on all counts, and Smith appealed. Defendants motioned this Court for a limited remand to allow the district court to listen to an audio tape recording of the conversation between the officers and the dispatcher during this incident. A transcript of the conversation was already part of the record. The tape became critical, however, because a dispute arose as to whether the officers had played their siren while following Smith. Smith is adamant that he did not hear the siren. He claims that he did not know that the men in the car trailing him were police officers because they were plain-clothed and drove an unmarked car. The officers contend that they followed Smith after he had violated a traffic law and played the siren, but that Smith refused to pull over. Smith, although driving within the speed limit, did not stop for twelve blocks until marked police cars pulled in front of him. On December 2, 1999, we granted defendants' motion, ordering the district court to consider: (1) whether a copy of the tape had been tendered to it; and (2) if a genuine issue of material fact existed as to whether the officers played their siren prior to the investigative stop.

On February 24, 2000, defendants filed a memorandum in light of our remand order asking the district court to consider the tape in deciding on summary judgment. The defendants noted that Smith objected to its admission because there were gaps and pauses in it and it was unclear whose siren was audible on the tape. In response, defendants pointed to the following: (1) an affidavit signed by Officer Darlin, one of the arresting officers, swearing that he had listened to the tape, that the voice on it was his, and that the siren heard on it sounded like the one from the car on that day; (2) an affidavit signed by Thomas Dugan, an employee of the City of Chicago Office of Emergency Communications, swearing that the office records all conversations between police and dispatchers and maintains these tapes in its ordinary course of business, that he had listened to the tape, that the office had made the tape from a master tape in its regular business practice, and that the recording had no "gaps" or "unexplained pauses," and that the siren had to have come from the officers' car since it was only audible when the officers spoke; and (3) deposition testimony of Officer Scott, another one of the arresting officers, recounting that Darlin had activated the siren while following Smith and that it remained on for twelve blocks. Defendants argued that Smith offered no evidence creating a genuine issue of material fact as to whether the siren was played. The only evidence Smith asserted was that he did not hear the siren. On March 1, 2000, Smith filed a memorandum in response. Smith argued that the tape was inadmissible because it had not been tendered to the court, the tape had gaps and pauses, and no foundation or authentication of the tape was presented.

The district court's order, issued on March 9, 2000, which strictly adhered to the language of our December 2nd order found that the tape had not been tendered to the court, and thus could not be considered as evidence. However, based on the depositions and affidavits, the district court found that the siren had been played. The district court concluded that Smith's mere assertion to the contrary was insufficient to raise a genuine issue of material fact. Therefore, the district court again granted summary judgment in defendants' favor. Smith appealed.

Upon reading the district court's order, we realized the ambiguity in our December 2nd order and set out to clarify it. On June 27, 2000, we issued an order directing the district court to supplement the record with the tape, listen to it, and redetermine the grant of summary judgment. Pursuant to this clearer directive, the district court, on October 12, 2000, issued an order stating that it had supplemented the record with the tape and listened to it. The court noted that the tape contained a recording of the conversation between the officers and dispatcher regarding a car that refused to pull over. Throughout the tape, a siren is clearly audible as the officers speak. (We too have listened to the tape and agree with the district court that a siren is clearly playing as the officers are speaking.) The district court noted that the defendants had offered the tape as authentic and had indicated that the siren was theirs. The court again found that no genuine issue of material fact existed since Smith merely asserted that he did not hear the siren and offered no evidence that the tape was not what the defendants claimed it to be. Therefore, the district court decided that summary judgment was still warranted in defendants' favor.

Today we consider two issues raised by Smith. First, he raises questions about the tape's authenticity and admissibility, and second, he alternatively argues that even if the tape was properly admissible, it did not eliminate disputes as to genuine issues of material fact.

I. Admissibility and Authenticity of the Audio Tape Recording

In granting summary judgment, a "'court may consider any material that would be admissible or usable at trial,' including properly authenticated and admissible documents or exhibits." Woods v. City of Chicago, 234 F.3d 979, 988 (7th Cir. 2000) (quoting Aguilera v. Cook County Police & Corrs. Merit Bd., 760 F.2d 844, 849 (7th Cir. 1985) and citing Martz v. Union Labor Life Ins. Co., 757 F.2d 135, 138 (7th Cir. 1985)). Audio tape recordings are generally admissible as evidence whether in original or duplicate form. See United States v. Carrasco, 887 F.2d 794, 802 (7th Cir. 1989). However, a duplicate may be inadmissible if "a genuine question is raised as to the authenticity of the original . . . ." Fed. R. Evid. 1003(1). In determining authenticity we follow Fed. R. Evid. 901(a), which requires "evidence sufficient to support a finding that the matter in question is what its proponent claims." United States v. Boyd, 208 F.3d 638, 644 (7th Cir. 2000). Beyond these basic parameters, "we have eschewed any formalistic approach to the admission of tape recordings or copies thereof." Stringel v. Methodist Hosp. of Indiana, Inc., 89 F.3d 415, 420 (7th Cir. 1996).

To authenticate a tape in a criminal case the government must prove by clear and convincing evidence that the tape is a true, accurate, and authentic recording of the conversation, at a given time, between the parties involved. See id. We have assumed, but not decided, that the proponent in a civil case for admission of a tape bears the same burden. See id. We decline to squarely decide the question again today, resting on the same assumption. Clear and convincing evidence of the truth, accuracy, and authenticity of a tape may be shown in two ways. The proponent may show the tape's chain of custody. See United States v. Brown, 136 F.3d 1176, 1181 (7th Cir. 1998). If no proof as to chain of custody is rendered, the tape may be admissible if a foundation as to the "'accuracy and trustworthiness of the evidence is laid.'" Id. (quoting United States v. Craig, 573 F.2d 455, 478 (7th Cir. 1977)). "In this circuit, the recollections of eyewitnesses to the events in question are sufficient to establish a foundation for the admission of tapes." Id. at 1182 (citations omitted).

Our second remand ordered the district court to admit the tape into the record and consider it in its decision. In so doing, the district court found that the tape was authentic and admissible because the proponents laid a proper foundation. They did so by submitting both Darlin's affidavit, which included eyewitness statements identifying his voice and siren, and Dugan's affidavit, which included chain of custody statements about how the tape was recorded and handled in the office. Thus, based on these attestations, the district court appropriately shifted the burden to Smith to show in authenticity, because once the foundation is laid by clear and convincing evidence, the opponent of admission has the burden to rebut. See United States v. Blakey, 607 F.2d 779, 787 (7th Cir. 1979). The district court properly found that Smith presented no evidence "to dispute that the recording is what the defendants claim[ed] it to be." Smith's only rebuttal is that he did not hear the siren, therefore there may have been a problem with the fidelity of the siren system or the siren was not played. Smith's contentions are merely "general, conclusory allegations based upon mere suspicions," which are not enough to rebut the proponent's foundation. Id. (quotation omitted). Stated another way, "[m]erely raising the possibility (however hypothetical) of tampering is not sufficient to render evidence inadmissible." Brown, 136 F.3d at 1182 (citation omitted). Therefore, it was appropriate to admit the tape...