Federal Judge Robert Dow Rules Police Officer's Gang Tattoo Identification Expert's, Bruce Malkin, Testimony Is Admissible To Explain Why Plaintiffs Attacked The Police
Judge Dow's Opinion:
This case arises out of a May 17, 2005 traffic stop involving Plaintiffs and two Chicago police officers. Plaintiffs contend that they were in a car with a friend, Jose Garcia, on the evening of May 17, 2005, when Rodriguez, the driver, took a wrong turn onto a dead-end street where Defendants Acevedo and Avalos were parked in their squad car. According to Plaintiffs, the officers stopped Plaintiffs'vehicle, exited their vehicle with guns drawn, forcibly removed Plaintiffs from the car, beat them, and placed them under arrest. Plaintiffs characterize this as "a conventional and (unfortunately) common Chicago police 'beat-up case.'"
According to Defendants, it was Plaintiffs and Garcia who instigated the physical confrontation, not the officers. Defendants claim that Officers Acevedo and Avalos were on their lunch break in a dead-end street when they observed Plaintiffs' car speeding, weaving, and entering private property. The officers stopped Plaintiffs, suspecting that the driver was impaired. Defendants maintain that Rodriguez jumped out of his vehicle and attacked Acevedo. While Avalos tried to subdue Rodriguez, Acevedo approached the car and told Garcia to "show me your hands."When Garcia refused, Acevedo pulled him out of the car through the passenger window, and the two began to struggle on the ground. At that point, Martinez got out of the car and jumped Acevedo from behind. Eventually, with the help of additional officers who responded to Defendants'calls for assistance, Rodriguez, Garcia and Martinez were physically subdued and taken into custody.
Plaintiffs seek to exclude in its entirety the testimony of Bruce Malkin, a proposed expert witness retained by Defendants in this matter to testify regarding gangs and gang identification.
In his expert report, Malkin opines that Plaintiffs are members of a street gang known as the Surenos. Malkin bases that opinion largely on Plaintiffs'tattoos, which he says represent membership in the gang. Malkin also opines that Defendants' account of Plaintiffs' actions on May 17, 2005 -namely, committing an unprovoked attack on police officers -is consistent with Plaintiffs' gang affiliation. For this opinion, Malkin relies on his law enforcement experience with the , during which Sureno gang members often would try to fight him, as well as on his general knowledge that gang culture often requires members to participate in illegal activity to achieve gang membership and respect."
In denying Plaintiffs' Motion to Bar, the Court explained:
"Here, Defendants contend that Plaintiffs, without provocation, attacked two armed police officers. Defendants' theory is that Plaintiffs were motivated by their gang affiliation, which rewards criminality, and by their desire to prove their worth as gang members to Garcia, a more established gang member. Thus, Plaintiff's alleged gang affiliation goes to the heart of Defendants'theory of the case. Malkin's opinions concern Plaintiffs'membership in the Surenos, and the value gangs generally place on criminality. Accordingly, this Court finds that Malkin's opinions are relevant to facts in issue....The average juror is unlikely to be familiar with the kinds of tattoos associated with members of the Surenos gang, or with gang culture generally. Therefore, the Court finds that Malkin's testimony will aid the jury's determination as to whether Plaintiffs were gang members, and how that affiliation may have influenced their interaction with the Defendant officers."
The Court conducted a Rule 403 balancing test and concluded:
"Here, Defendants are seeking to admit Malkin's testimony about the meaning of Plaintiffs'tattoos to demonstrate motive for Plaintiffs' behavior, not merely to show gang membership. The Court does not believe that the probative value of Malkin's opinion regarding Plaintiffs'gang membership is substantially outweighed by the danger of unfair prejudice. Therefore, Plaintiffs'motion to strike Defendants'gang expert is denied."
