Dоnna FLOURNOY, Plaintiff-Appellant, v. CITY OF CHICAGO, et al., Defendants-Appellees.
No. 14-3776
United States Court of Appeals, Seventh Circuit.
Argued March 31, 2016; Decided July 21, 2016
Rehearing En Banc Denied Oct. 4, 2016.
829 F.3d 869
Stephen G. Collins, Attorney, City of Chicago Law Department, Appeals Division, Chicago, IL, James G. Sotos, Attorney, Sotos Law Firm, P.C., Itasca, IL, for Defendants-Appellees.
MANION, Circuit Judge.
Donna Flournoy was severely injured by a flashbang grenade deployed by Chicago police during their execution of a search warrant for a suspected drug dealer. Flournoy responded with this lawsuit against two of the officers involved in the search, alleging that they used excessive force in violation of the Fourth Amendment. The case went to trial and the jury found for the defendants.
Flournoy now seeks a new trial on several grounds. She asserts that the jury‘s verdict has no reasonable basis in the record; that the district court erroneously excluded a key piece of evidence at trial; and that a signed statement submitted by the jurors with their verdict shows that they disregarded the law in finding for the defendants.
We affirm. The jury‘s verdict is supported by the record and is not against the manifest weight of the evidence; the district court‘s evidentiary ruling was not an abuse of discretion; and the jury‘s statement is consistent with the verdict and does not affect the verdict‘s validity. Flournoy received a fair trial before a jury of her peers, and is not entitled to a new trial.
I. BACKGROUND
A. Search Warrant
In November 2008, Chicago police officer Robert Lobianco learned from an informant that a man named Anthony was selling crack cocaine from a garden apartment lоcated at 1108 N. Lawler Ave. The informant said that he had frequently purchased crack from Anthony at the apartment over the past several months and that Anthony answered the door carrying a handgun during the transactions. Based on this information, Officer Lobianco applied for and obtained a search warrant for the apartment on November 13, 2008. Officer Lobianco did not believe that he could executе the warrant safely, so he requested assistance from the local SWAT team. SWAT team sergeants Wayne Wieberg and Thomas Lamb agreed that the warrant presented a high degree of risk and approved the request.
B. SWAT Team‘s Preparations
Officer Daniel Colbenson and another SWAT team member then prepared a mission plan for executing the warrant. In doing so, Officer Colbenson relied on an official “High Risk Warrant Services” form signed by Sergeant Wieberg. The form indicated that Anthony might be accompanied by “numerous” other people selling narcotics from the apartment; that he was possibly a convicted felon; and that he was known to protect his drug operation and to answer the door carrying a weapon in his waistband. Officer Colbenson was also aware that the apartment was in a high-crime neighborhood that would require officers to pay special attention to the surrounding area outside the apartment during the search.
In light of these considerations, Officer Colbenson‘s plan called for a team of approximately twenty officers to effect a “dynamic entry” with the goal of securing the premises within thirty seconds. Some officers were assigned to enter and clear the apartment, others to secure the building‘s exteriоr, and others to conduct surveillance from an unmarked van. The plan also authorized the use of “flashbang” grenades as needed. A flashbang is an explosive diversionary device that generates a blinding light and deafening noise to give police a tactical advantage by temporarily disorienting those nearby.
The SWAT team executed the warrant on the evening of November 13, 2008. At the time, Flournoy was at the aрartment visiting her son “Tony,” who was there with his girlfriend and another of Flournoy‘s sons. For an hour or two before the search, two officers specially trained in surveillance watched the apartment to gather real-time intelligence. The officers informed Officer Colbenson that the apartment lights were on, but Officer Colbenson did not receive any information about who was in the apartment.
Once the full SWAT team arrived, аn officer knocked on the apartment door and yelled, “Chicago police, search warrant!” When no one answered after a number of seconds, the officers breached the door with a battering ram. Around the same time, Officer Colbenson used a “break-and-rake” tool to clear out the windows along the front and side of the apartment.1 (This was intended to cause a distraction and to enablе the officers to see into the area they were about to enter.) Upon breaking the side window, Officer Colbenson saw Flournoy move off an air mattress in the direction of the door that had been breached. Officer Colbenson testified that he saw Flournoy only momentarily, “probably a second at the most.” He further testified that he did not know it was Flournoy at the time, and that, “for all [he] knew, she could have been the оffender.”
Meanwhile, Officer Quinn looked through the doorway to see if it was safe to use a flashbang. Officer Quinn did not see anyone inside, so he lightly tossed a flashbang into the apartment‘s entryway.2 Unfortunately, the flashbang‘s blast severely wounded Flournoy‘s right leg.3 After the flashbang went off, a group of officers entered through the doorway and quickly secured the apartment. Several officers administered first aid to Flournoy until she was transрorted to the hospital by ambulance. The SWAT team‘s search of the apartment uncovered narcotics and a loaded 9 millimeter handgun.
D. Legal Proceedings
Flournoy subsequently filed a civil action against Officers Quinn and Colbenson under
During discovery, the defendants produced two copies of a typed police report that was co-authored and signed by Officer Colbenson shortly after the search. The report recounts the circumstances of Flournoy‘s injury and notes that “a Noise Flash Diversionary Device” was deployed in the search. One of the copies also includes a handwritten notation beneath the typеd narrative stating, “two flashbangs deployed.” The other copy does not include this handwriting, and neither copy contains any additional handwritten statements. When questioned about the handwriting at deposition, Officers Quinn and Colbenson both testified that they did not make the notation and did not know who did. They also testified that they were aware of only
Following trial the jury returned a verdict for the defendants on all claims. The jury submitted the following signed statement with its verdict: “While we agree that this was a horrible instance, in our collective opinion, the errors made by the Chicago Police Department as a whole cannot fall on the shoulders of these two defendants.” The district court еntered final judgment for the defendants and denied Flournoy‘s motion for a new trial. Flournoy filed this timely appeal.
II. DISCUSSION
Flournoy raises three arguments on appeal. First, she argues that the verdict must be reversed because no rational jury could conclude that the defendants did not use excessive force when conducting the search that led to her injury. Second, she contends that the district court erred by excluding the handwrittеn statement, “two flashbangs deployed,” found on one of the copies of Officer Colbenson‘s typed police report. Finally, she argues that the note submitted by the jury with its verdict undermines the verdict‘s validity and requires a new trial. We address each argument in turn.
A. The jury‘s verdict is not against the manifest weight of the evidence.
We review the district court‘s denial of a motion for a new trial for abuse of discretion. United States v. Whiteagle, 759 F.3d 734, 756 (7th Cir. 2014). Under this “extremely deferential” standard, Galvan v. Norberg, 678 F.3d 581, 588 (7th Cir. 2012), a new trial may be granted “only if the jury‘s verdict is against the manifest weight of the evidence.” King v. Harrington, 447 F.3d 531, 534 (7th Cir. 2006). To meet this standard, Flournoy must demonstrate that “no rational jury” could have rendered a verdict against her. Id. We must view the evidence in the light most favorable to the prevailing parties, and will sustain the verdict so long as it is supported by a “reasonable basis” in the record. Id.
In determining whether police used excessive force under the Fourth Amendment, the rеlevant inquiry is “whether the officers’ actions [were] objectively reasonable in light of the totality of the circumstances.” Fitzgerald v. Santoro, 707 F.3d 725, 733 (7th Cir. 2013) (citing Graham v. Connor, 490 U.S. 386, 396-97 (1989)). “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396. When applying this standard, we are mindful that “police officers are often forced to make split-secоnd judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Id. at 396-97.
Before executing the warrant in this case, the defendants were advised that they would be searching the apartment of
To begin, the evidence supports the jury‘s finding that Officer Colbenson acted reasonably when he cleared the apartment‘s windows to cause a distraction and enable officers to see inside the area they were about to enter. Flournoy suggests that Officer Colbenson should have told the other officers not to deploy a flashbang once he saw Flournoy inside, but Officer Colbenson testified that he saw Flournoy only momentarily and so had no opportunity to intеrvene. Officer Colbenson‘s testimony on this point supports the jury‘s verdict, and the jury was entitled to believe him. See King, 447 F.3d at 534.
The evidence also supports the jury‘s finding that Officer Quinn did not use excessive force when he deployed the flashbang to facilitate a safe and speedy execution of the warrant. Officer Quinn testified that, in accordance with his training, he first visually scanned the area where the flashbang was to be deрloyed, and released the flashbang only after determining that the area was clear. Although Officer Quinn might have seen Flournoy (and the injury might have been avoided) if he had first entered the apartment to conduct a more thorough inspection, he testified that he believed it was dangerous to enter the apartment before deploying the flashbang and that he was specifically trained not to do so. See Trial Tr. аt 278 (Officer Quinn confirming that he was trained not to enter a room in which he was about to use a flashbang, and explaining that, “[i]f I was to enter the apartment or stick my head in, somebody inside an area where I couldn‘t see could have shot me“); see also id. at 622 (Sergeant Lamb testifying that the officers were trained “never” to step inside a room before deploying a flashbang: “It defeats the purpose of having the flаshbang. . . . So you deploy the flashbang first, then take that advantage and move in once it‘s deployed.“).5 Again, we decline to supplant the jury‘s assessment of Officer Quinn‘s credibility on these critical points.6
Viewed in the light most favorable to the defendants, the evidence adequately supports the jury‘s verdict that Officers Quinn and Colbenson did not use excessive force, and that Officer Colbenson did not unlawfully fail to intervene. The verdict is not against the manifest weight of the evidence, and the district court did not abuse its discretion in denying Flournoy‘s motion for a new trial.
Flournoy next argues that the district court erroneously excluded the handwritten notation—“two flashbangs deployed“—found on one of the copies of Officer Colbenson‘s typed police report produced in discovery. She asserts that the exclusion of this evidence deprived her of a fair trial because the number of flashbangs deployed was crucial to the determination of excessive force.
We review the district court‘s evidentiary rulings for abuse of discretion. Griffin v. Bell, 694 F.3d 817, 826 (7th Cir. 2012). Hearsay, or an out-of-court statement offered to prove the truth of the matter asserted, is generally not admissible unless it falls within an excеption to the hearsay rule. United States v. Hawkins, 803 F.3d 900, 901 (7th Cir. 2015). Flournoy does not dispute that the handwriting on Officer Colbenson‘s report is hearsay, but argues that it is nonetheless admissible under two exceptions: the business-records exception,
Under
The residuаl exception doesn‘t apply either. That exception applies only when the hearsay statement has adequate circumstantial guarantees of trustworthiness; is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and admitting it would serve the interests of justice.
In sum, the district court did not abuse its discretion in excluding the handwritten notation and instead admitting a copy of Officer Colbenson‘s report that did not include the handwriting. The district court‘s evidentiary ruling does not provide a basis for granting Flournoy a new trial.
C. The jury‘s note does not affect the validity of the verdict.
As mentioned earlier, the jury submitted with its verdict a signed note that read: “While we agree that this was a horrible instance, in our collective opinion, the errors made by the Chicago Police Department as a whole cannot fall on the shoulders of these two defendants.”
Flournoy argues that this note renders the verdict “fatally defective” because it shows that the jurors’ decision was (variously) the product of confusion, sympathy for the defendants, “willful disregard for the law,” “deliberate refusal to follow the [c]ourt‘s instructions,” “de facto jury nullification,” and unidentified “impermissible extraneous considerations.” She further labels the note an “admission” by the jurors that their verdict was not based on the law or the evidence.
Flournoy‘s argument fails for several reasons. First, contrary to Flournoy‘s jumbled litany of accusations, nothing in the note‘s plain language suggests any misconduct by the jurors. If anything, the note appears to show thаt the jury carefully followed the court‘s instructions and dutifully applied the law to the facts as it found them. The court instructed the jury to find a defendant liable for excessive force only if Flournoy proved by a preponderance of evidence that “the particular defendant used unreasonable force.”9 In line with that instruction—and consistent with the verdict—the jury‘s note indicates that, whatever errors they believed wеre attributable to the Chicago Police Department as a whole, Flournoy failed to show by a preponderance of evidence that the “particular defendant[s]” in question used unreasonable force. The jurors should be commended—not castigated—for their apparent commitment to the rule of law in resolving what all would agree was a challenging case based on a troubling set of facts.
More to the point, though, the jury‘s statement does not undermine the verdict because the statement is a gratuitous observation that is immaterial to the verdict‘s validity. Indeed, “[f]ederal courts have long held that additional jury notations that are not directly responsive to the jury charge and verdict form are surplusage, and are to be ignored.” Great Pines Water Co. v. Liqui-Box Corp., 203 F.3d 920, 924 (5th Cir. 2000) (collecting cases); see also Freeman v. Franzen, 695 F.2d 485, 490 (7th Cir. 1982) (citations omitted) (“Ordinarily a recommendation from the jury is disregarded, and doеs not impeach the validity of the verdict.“). Accordingly, the jury‘s note is not evidence of impropriety and does not warrant a new trial.10
III. CONCLUSION
The jury‘s verdict is supported by the evidence, and Flournoy received a fair trial. The judgment of the district court denying Flournoy‘s motion for a new trial is AFFIRMED.