United States Supreme Court Limits Vehicle Searches By Police

Today, the U.S. Supreme Court held the following in Arizona v. Gant:  Holding: Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies 

Seventh Circuit Affirms Kunz v. City

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 Today the Seventh Circuit  affirmed the district court’s judgment in its entirety in Kunz v. City.

"On March 22, 1999, Jeremy Kunz spent the afternoon and evening in a bar watching March Madness and consuming a few Guinnesses....Kunz left [to run an] errand—which turned out to be the delivery of some drugs—he grazed a parked car and kept driving. His actions prompted a 911 call from a witness; Officer DeFelice and his partner responded. Despite the flashing lights on the police car, Kunz kept driving, with the police in pursuit. [the car he was driving was reported stolen]. When Kunz finally stopped the car, he got out and tried to flee on foot...[and toss his drugs]."  

"As he was being handcuffed, multiple police officers kicked Kunz, eventually causing a sharp pain later diagnosed as a broken rib. The police then dragged the injured and restrained Kunz to their squad car and took him back to the station, where they placed him in a room on a stool, still cuffed and facing DeFelice. DeFelice repeatedly punched Kunz in the face hard enough to make him pass out several times. "

Kunz plead guilty, severed his time, and then brought a lawsuit.

Kunz prevailed, winning jury verdicts against Officer DeFelice for $10,000 in compensatory damages and $250,000 (later reduced to $90,000) in punitive damages, as well as a verdict against the City for another $15,000 in compensatory damages. 

The parties cross-appealed. 

The Court affirmed keeping out a retail theft conviction and affirmed the exclusion of James O'Donell, the toxicologist.   Judge Zagel excluded O'Donell because his testing was not based on a sound methodology.  Moreover, the Seventh Circuit held noted that  "O’Donnell was a 
singularly unimpressive witness. His credentials were weak, at best: his degree is called a Pharm.D.; he earned it after one year of classes, only one of which was in pharmacology. Despite the title, his Pharm.D. is not actually in pharmacology, and O’Donnell admitted elsewhere to advertising falsely that it was.

The Seventh Circuit also affirmed the exclusion of witnesses as Zagel barred their testimony  as a discovery sanction under FED. R. CIV. P. 37.  DeFelice claimed that named were in the police reports, "but with nothing to signal that they had anything useful to add. The district court found that it would place an excessive burden on the plaintiff to require him to sift through every single name turned over in discovery."

On the cross-appeal, Kunz challenged the granting of summary judgment on his unlawful detention and malicious prosecution.  Specifically, Kunz challenged the district court's denial of his theory that "the coercive force DeFelice used proximately caused his extended detention and ensuing damages...under the Fourth or Fifth Amendment.  However, Kunz did not develop his fifth amendment his "novel legal theory" at the district court level and therefore it was waived. 
 
Joseph Roddy represented Officer DeFelice, Jon Loevy represented Kunz.
 

Michael Evans Loses Final Bid For A New Trial

Michael Evans has lost in his final bid for a new trial. Evans sued ten former Chicago police officers claiming they framed him for the rape and murder of nine-year old Lisa Cabassa back in 1976. Evans had spent 27 years in prison before being released based on new DNA results. A federal court jury rejected his claims and found in favor of the retired police officers. Evans appealed to the Seventh Circuit and lost there too. Evans then filed a petition for rehearing en banc before the Seventh Circuit. That petition has now been denied as well. The retired police officers were represented by Benna Solomon, Myriam Kasper and Jennifer Notz during the appellate proceedings. Andrew M. Hale was lead counsel for the retired police officers at trial in the Northern District of Illinois before the Honorable David Coar. Jon Loevy of Loevy & Loevy represented Evans at trial and on appeal.

Michael Evans Denied A New Trial - Defense Verdict Affirmed

The Seventh Circuit Court of Appeals affirmed a verdict in favor of the City of Chicago and ten former Chicago police officers and against Michael Evans, thereby denying Evans a new trial. Evans had filed suit seeking $60 million claiming the officers framed him for the rape and murder of nine-year old Lisa Cabassa in 1976. In August 2006, a jury returned a verdict in favor of the officers and City of Chicago, finding there to be no police misconduct. On appeal, Evans was seeking a new trial. In a 2-1 decision, the Seventh Circuit held that Evans received a fair trial and was not entitled to a new trial. At trial, the police officers were represented by attorneys Andrew Hale, Eileen Rosen, Kevin Horan and John Rock of Rock Fusco, LLC. On appeal, the police officers were represented by Benna Ruth Solomon, Jenny Notz and Myriam Kasper, attorneys with the Corporation Counsel's appellate group. Evans was represented at trial and on appeal by Jon Loevy of Loevy & Loevy.

Seventh Circuit Affirms Sanction Against Frequent Plaintiff Prince Foryoh

In a published opinion in In Re City of Chicago, No. 07-2608,  the United States Court of Appeals for the Seventh Circuit reaffirmed its prior orders sanctioning Prince Foryoh for making false statements on his application for in forma pauperis ("IFP") status. The prior orders barred Foryoh from conducting any federal litigation until all of his outstanding fees and costs, in all of his cases had been paid. The appeal arose after the district courts in Foryoh's pending cases determined that they would allow Foryoh to litigate his pending cases notwithstanding the court's orders. When the defendants objected, the district court judges referred the matter to the Executive Committee, which issued orders stating that barring Foryoh from proceeding would raise due process concerns and prejudice the defendants, since the cases would have to be stayed until Foryoh could pay. On the City's motion, the Seventh Circuit reaffirmed its prior sanctions. The court rejected the view that the sanctions posed any constitutional problem, and described the sanction as "modest." The court emphasized that Foryoh had filed frivolous lawsuits and attempted to defraud both the judiciary and his opponents. The court also rejected the idea that Foryoh's cases would have to be stayed, stating that Foryoh must meet the normal schedule for civil litigation, and that if he fails to do so, his suits must be dismissed with prejudice for failure to prosecute. The court did clarify that once Foryoh pays what he owes, he is entitled to have the order lifted immediately. Avi Kamionski handled the case in the district court and Myriam Kasper handled the appeal.

Evan Zimmerman Seventh Circuit Appeal Dismissed

Evan Zimmerman, who served three years in prison for a murder conviction that was later overturned, has died of cancer at the age of 61. Zimmerman had been convicted of strangling his ex-girlfriend Kathleen Thomson in Eau Claire, Wisconsin. After being released from prison, Zimmerman filed a federal civil rights lawsuit claiming he had been framed by the police. The district court granted summary judgment in favor of the the police officers and the City of Eau Claire. Zimmerman then appealed the decision to the Seventh Circuit Court of Appeals. Oral argument was heard in April 2007. On July 1, 2007,  prior to the Seventh Circuit rendering a decision, Zimmerman died of cancer.  Zimmerman's attorneys have now dismissed their Seventh Circuit Appeal. Zimmerman was represented by Jon Loevy of the law firm of Loevy & Loevy.

City Of Chicago Files Response To Michael Evans' Appeal

The City of Chicago and ten former Chicago police officers have filed their response to Michael Evans' Seventh Circuit appeal. In August 2006, a federal court jury found in favor of the City of Chicago and the police officer defendants, rejecting Evans' claim that he had been framed for the rape and murder of Lisa Cabassa back in 1976. Evans spent 27 years in prison before being released in 2003 when DNA found on a rectal swab did not match Evans. An eyewitness, Judith Januszewski, testified that she saw Evans and his friend Paul Terry abducting Lisa Cabassa on the evening she disappeared. In their appellate brief, the defendants argued that the district court did not abuse its discretion in allowing testimony by police officers who fully complied with discovery. The defendants also argued that Evans' failure to ask the district court for additional time to conduct discovery waived any claim of prejudice. For example, the defendants' brief states "Tellingly, the primary relief Evans seeks is a remand to 'provide Plaintiff a reasonable opportunity to take fact and expert discovery. Evans never sought this relief from the district court, although the officers suggested it. Evans wanted to go to trial as quickly as possible. Evans apparently now regrets this strategy, but his gamesmanship should not be rewarded with relief he never sought below. Indeed, because Evans never asked the district court for more time for discovery, this argument is waived." (Defendants' brief at p. 38). Defendants are represented on appeal by Benna Ruth  Solomon (Deputy Corporation Counsel), Myriam Zreczny Kasper (Chief Assistant Corporation Counsel), and Jane Elinor Notz (Assistant Corporation Counsel). Evans is represented on appeal by Jon Loevy, of Loevy & Loevy, who was also Evans' lead trial counsel. At trial, the defendants were represented by Andrew Hale, Eileen Rosen and John Rock from Rock Fusco, LLC.