DALLAS GREEN, Plaintiff-Appellant, v. CORY JUNIOUS, et al., Defendants-Appellees.
No. 17-1784
United States Court of Appeals For the Seventh Circuit
ARGUED SEPTEMBER 27, 2018 — DECIDED AUGUST 28, 2019
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 12 CV 9447 — Charles R. Norgle, Judge.
Before FLAUM, MANION, and SYKES, Circuit Judges.
At the time of these events, Green was on probation for a felony drug conviction. A Cook County circuit judge revoked his probation, finding that Green possessed a gun during this encounter. Green thereafter sued the officers and the City of Chicago for damages under
We affirm. The contested jury instruction was sound. Green‘s excessive-force claim was premised on his contention that he was unarmed during this encounter. But the state judge found that he had a gun, and that finding has preclusive effect here. Green raises other claims of error but none has merit.
I. Background
The whole sequence of events at issue occurred in the span of a few minutes on the night of November 15, 2010. Green was walking through the parking lot of a Citgo gas station in Chicago when an unmarked police vehicle pulled into the lot. Four officers of the Chicago Police Department‘s tactical unit were inside: Cory Junious, Enyinnaya Nwagwu, Steven Archer, and Ryan Winfrey. As the police vehicle approached, Green started to run in the opposite direction. Officer Nwagwu jumped out and pursued him on foot, yelling “police stop, police stop.” While fleeing through the parking lot, Green dropped something and turned to pick it up. Officer Nwagwu thought it was a gun and yelled “don‘t pick up that gun, don‘t pick up that gun.” When Green ignored the instruction and picked it up, Officer Nwagwu fired a shot, narrowly missing Green. Officer Archer also testified that he saw Green drop and pick up a gun.
The pursuit continued down a residential street. As Green cut through a yard on East 87th Place, Officer Junious picked up the chase and followed him. They soon came face to face in a backyard. Their versions of the next few seconds vary considerably. Officer Junious testified that Green raised a gun toward him and then flung it to the side—“all in one sequence.”
At the time of this incident, Green was on probation for a 2009 felony drug conviction. The Cook County Circuit Court initiated revocation proceedings. The judge held a hearing and found that Green possessed a gun at the Citgo station during the confrontation with police, violating the terms of his probation.
Green filed suit in state court against the officers and the City of Chicago seeking damages under
During trial and over Green‘s objection, the judge gave the following instruction pursuant to Gilbert v. Cook, 512 F.3d 899 (7th Cir. 2008), instructing the jury about the preclusive effect of the state court‘s gun-possession finding:
Mr. Green was found guilty of violating his probation on December 16, 2014, when on November 15, 2010, he had a handgun when he was in the Citgo gas station. Under the law Mr. Green is bound by the terms of this finding. Therefore, you should not consider any statement to the contrary by Mr. Green, his lawyers[,] or a witness, and those statements must be ignored. What you need to determine is whether the officers’ use of force was reasonable under the circumstances.
The judge delivered this instruction at the following points in Green‘s testimony:
- When Green testified: “[A]fter my phone fell off my person, I bent down and picked it up, and I proceeded to run in the same direction I was going in. As I was running, that‘s when the shot was fired at me.”
- When he testified about the encounter with Officer Junious: “I heard him coming through, so then I began to say, I‘m unarmed, I‘m unarmed, I‘m over here, I‘m back here, I‘m unarmed. And then I saw him [coming], and I turned my body like this, and I‘m showing my hands telling, I‘m unarmed, I don‘t have anything, don‘t shoot, and he came and shot me.”
- When Green testified that he did not have a gun at any time that night and had never held a gun.
When Green rested his case-in-chief, Officers Winfrey, Archer, and Nwagwu moved for judgment as a matter of law on the excessive-force claim, and all four officers moved for judgment on the failure-to-intervene claim. The judge granted both motions, leaving only the excessive-force claim against Officer Junious for the jury, which returned a verdict in favor of the officer.
Green moved for a new trial under
II. Discussion
Green reprises some of the arguments raised in his posttrial motion—namely, the challenge to the Gilbert instruction and certain claims of evidentiary error. We review an order denying a motion for a new trial for abuse of discretion. Clarett v. Roberts, 657 F.3d 664, 674 (7th Cir. 2011). “A new trial may be granted if the verdict is against the clear weight of the evidence or the trial was unfair to the moving party.” David v. Caterpillar, Inc., 324 F.3d 851, 863 (7th Cir. 2003).
To the extent that the appeal challenges the judge‘s jury instructions, our standard of review is twofold: we review jury instructions de novo to determine whether they “fairly and accurately summarize[] the law,” Clarett, 657 F.3d at 672, and we review the judge‘s decision to give an instruction for abuse of discretion, reversing “only if the instructions as a whole are insufficient to inform the jury correctly of the applicable law and the jury is thereby misled,” United States v. Madoch, 149 F.3d 596, 599 (7th Cir. 1998). Claims of evidentiary error are reviewed for abuse of discretion. Viramontes v. City of Chicago, 840 F.3d 423, 430 (7th Cir. 2016). We will reverse only if “no reasonable person would agree with the trial court‘s ruling and the error likely affected the outcome of the trial.” Perry v. City of Chicago, 733 F.3d 248, 252 (7th Cir. 2013).
A. The Gilbert Preclusion Instruction
Green contests the judge‘s jury instruction on the preclusive effect of the state court‘s gun-possession finding. The parties refer to this as the Gilbert instruction, so we begin with the background of that case. Gilbert involved an Eighth Amendment claim by a prisoner who alleged that three guards used excessive force against him. 512 F.3d at 900. The prisoner, Alex Gilbert, alleged that the guards tripped him as they were escorting him—handcuffed and shackled—back to his cell. The guards left the handcuffs on until Gilbert was in his cell with the door closed. They then told him to put his hands through the chuckhole so they could remove the cuffs. He complied. As soon as the handcuffs were removed, however, Gilbert punched one of the guards through the chuckhole—or so the prison disciplinary board found when revoking a year‘s worth of good-time credit. Id. Gilbert denied punching anyone. In his version of events, the guards, unprovoked, wrenched his arm through the chuckhole, separating his shoulder. Id.
Gilbert wanted to testify that the guards tripped him and continued the gratuitous violence by yanking his arm through the chuckhole. Id. at 901. A magistrate judge barred him from testifying in contradiction of the prison disciplinary finding. Id. That ruling flowed from Heck v. Humphrey, 512 U.S. 477 (1994), and Edwards v. Balisok, 520 U.S. 641 (1997). Heck holds that a plaintiff in a
We reversed and remanded for a new trial. We began by analogizing the Heck principle to preclusion doctrine: “Like the law of issue and claim preclusion, Heck prevents a litigant from contradicting a valid judgment.” Id. We then observed that “[a] contention that a guard struck back after being hit is compatible with Heck.” Id. While Gilbert could not contradict the disciplinary board‘s finding that he punched the guard, we explained that Heck and Edwards did not block litigation about what happened after the punch. Id. We held that Gilbert “must be allowed to present evidence about what the guards did to him after he extended his hands through the chuckhole.” Id. at 902.
We explained how the judge should have applied Heck and Edwards in this situation:
Instead of insisting that Gilbert confess in open court to striking a guard, the judge should have implemented Heck and Edwards through instructions to the jury at the start of trial, as necessary during the evidence, and at the close of the evidence. It would have sufficed to tell the jurors that Gilbert struck the first blow during the fracas at the chuckhole, that any statements to the contrary by Gilbert (as his own lawyer) or a witness must be ignored, and that what the jurors needed to determine was whether the guards used more force than was reasonably necessary to protect themselves from an unruly prisoner.
The instruction recommended in Gilbert is perhaps best understood as an issue-preclusion instruction. Our decision in Sanchez v. City of Chicago, 880 F.3d 349 (7th Cir. 2018), helpfully illustrates how preclusion doctrine applies in a case like this one. Sanchez was arrested, charged, and convicted in state court of aggravated driving under the influence. Id. at 353–55. While appealing that conviction, he filed a
We disagreed. We explained that although Heck did not categorically block the suit, the state criminal judgment had preclusive effect under traditional collateral-estoppel analysis. Id. at 357. Sanchez therefore could not dispute the finding that he was under the influence on the night of the arrest, and the instruction was proper.
Sanchez and Gilbert control here. The state judge found in the probation-revocation proceeding that Green possessed a gun when he encountered the police in the Citgo parking lot. Like Sanchez, Green wants to relitigate that factual finding. But he is bound by the adverse determination.
Green contends that because the state court‘s finding concerned his gun possession in the Citgo parking lot, it was error to give the Gilbert instruction after he testified that he was unarmed in the backyard where Officer Junious shot him. That distinction might matter if Green‘s theory was that he had a gun at the Citgo station but got rid of it during the chase before Officer Junious caught up with him in the backyard. But that was not his theory of the case. He testified that he never had a gun at any time that night. That flatly contradicts the probation-revocation finding.
The other problem with this argument is that Green sued all four officers for excessive
Green also quarrels with the specific wording of the preclusion instruction, arguing that it created more confusion than clarity. But he did not object to the wording of the instruction in the district court, so the argument is waived.
Finally, Green protests that the judge delivered the preclusion instruction too often. Our ruling in Gilbert was necessarily quite general on the question of the timing of the instruction. We said only that an appropriate preclusion instruction should be read “as necessary during the evidence.” 512 F.3d at 900. Here the judge read the instruction three times: (1) when Green testified that he dropped a cell phone (not a gun) while running from Officer Nwagwu in the Citgo parking lot; (2) when he testified that he was unarmed as he encountered Officer Junious in the backyard; and (3) when he testified that he did not have a gun at any time that night. We cannot fault the judge for reading the instruction at these points during Green‘s testimony. Indeed, it was reasonable for him to do so.
B. Evidentiary Rulings
Green also challenges several evidentiary rulings. First, he argues that the judge should not have barred the testimony of Illinois State Police lab technician Moira McEldowney. In her written report, McEldowney wrote that she did not find usable fingerprints on the handgun that was recovered near the shooting location. Green wanted to put her testimony before the jury to bolster his claim that he did not possess the gun. The judge excluded it, ruling that her testimony would contradict the state court‘s finding and undermine the Gilbert instruction. He was right. We find no abuse of discretion.
Green next complains that the judge interrupted Officer Junious‘s closing argument to remind the jury to disregard part of Arthur Jones‘s testimony. Jones, an “associate” of Green‘s who was at the Citgo station during these events, testified that he saw Green drop a cell phone. The judge admonished the jurors to “keep in mind” that he had instructed them to disregard this testimony. Green‘s challenge to the judge‘s action is woefully undeveloped and thus is waived. See United States v. Cisneros, 846 F.3d 972, 978 (7th Cir. 2017) (“[P]erfunctory and undeveloped arguments, and arguments that are unsupported by pertinent authority, are waived.“).
Green finally contends that evidence of his 2009 felony conviction should have been excluded under Rule 403 of the Federal Rules of Evidence. But Green himself introduced the evidence. He testified on direct examination that he got in “trouble for drug possession” and pleaded guilty to a felony drug charge. “[A] defendant
C. Motion to Extend Time
Green‘s last argument is a challenge to the denial of his motion for an extension of time to file a supplemental memorandum in support of his Rule 59(a) motion. The judge declined to extend the time because Green delayed ordering the transcripts. Green offers no explanation for the delay, so we have no reason to question the judge‘s decision.
AFFIRMED