U.S. Court of Appeals
For the Seventh Circuit
Civil Rights — Search warrants — unreasonable execution
Even if a county’s policy of executing even routine search warrants from a heavily-armed SWAT team is unreasonable, summary judgment was properly granted to the county where the plaintiff’s expert’s report was not properly authenticated.
“Gaut’s report severely criticizing the County’s search policy might, if admissible (compare Florek v. Village of Mundelein, 649 F.3d 594, 601–03 (7th Cir. 2011)), entitle the estate to a trial, were it not for a fatal procedural error by its lawyer: failing to authenticate Gaut’s expert report. It was filed with the district court but could not be admitted into evidence without an affidavit attesting to its truthfulness. Fed. R. Civ. P. 56(e)(3); Fed. R. Evid. 901(a); Scott v. Edinburg, 346 F.3d 752, 759–60 and n. 7 (7th Cir. 2003). There was no affidavit. Nor did the plaintiff’s lawyer cite Gaut’s report in opposing the defendants’ motion for summary judgment. On appeal he made the convoluted argument that it was the defendants’ burden to depose Gaut and that having failed to do that they admitted that everything in his report was true. Not so. Deposing a witness is optional. Anyway the report could not be used to oppose summary judgment because it was inadmissible. Without the report there is insufficient evidence to justify imposing liability on the County.”
14-1867 Estate of Adam Brown v. Thomas
Appeal from the United States District Court for the Eastern District of Wisconsin, Griesbach, J., Posner, J.