Case Information
*1 Before B AUER , P OSNER , E ASTERBROOK , Circuit Judges . P OSNER , Circuit Judge
. Sharron Balthazar sued City Chicago (which we can ignore) its officers under U.S.C. § 1983, charging officers, several others charged, conducted unreasonable violation therefore Fourth Amendment, has made applicable searches state local (as this case) interpretation *2 ‐ due process clause of the Fourteenth Amendment. A returned verdict for the defendants, and Balthazar appeals.
She lived on the third floor apartment house. There were two apartments on floor, one facing the street and the alley behind the building. Police had warrant search the apartment facing the alley for narcotics. Both apartments had rear doors fifteen feet opening on common balcony which flights stairs descended ground. Early fall afternoon 2009, police, in ‐ cluding defendant officers, arrived execute search warrant. officers climbed stairs bal cony. One them (defendant Beckman) carried battering ram—in lingo “breach officer” on war rant team. swung ram at plain tiff’s apartment, breaking open. According testimony (and also her ‐ year ‐ old son and her sis ter—the son apartment mother and her cousin; sister came over later, allegedly help clean up mess created police), officers entered Balthazar apartment, screaming profanities pointing guns, which included “long guns” (not further de fined), “face face, like inches away,” occupants (the plaintiff, her son, cousin, didn’t testify, plaintiff’s). handcuffed plaintiff cousin ransacked apartment, dumping “flour sugar everywhere food on floor,” opening drawers, flipping mattresses, throwing clothing, short turning into “total disaster.” Ten fifteen minutes search another appeared told search ers they whereupon they all left floor, they warrant. *3 3
That the plaintiff’s version of the facts. According to defendants, Beckman, wanting to “get up stairs as quickly as possible” to avoid “potential hazard,” became slightly disoriented lugging battering ram—which weighed at least pounds and possibly as much as pounds—up and half flights stairs (the first floor of house was half flight stairs above ground). As result he confused apartments on plaintiff’s floor. He was first officer to reach balcony but Murphy, other defendant officer and leader warrant team, was only ten feet behind Beckman staircase saw Beckman at door shouted “wrong wrong door!” Too late; Beckman started swing battering ram couldn’t check its momentum, though unsuccessful ef fort avoid hitting door able lower ram far enough it hit just bottom door. Still, door burst open saw man inside (it must have cousin), Murphy another officer, close behind him. None entered apartment. They rushed immediately one designated their warrant, searched after battering door when no one answered demand (there turned out apart ment). brief recites Balthazar’s version facts Gospel, changes gears argument sec
tion says “the undisputed facts trial established Defendant forcibly breached Plaintiff’s back able observe inside Plaintiff’s without warrant any legal justification. Courts repeatedly held viewing inside Plaintiff’s *4 ‐ ment under these circumstances constituted search.” The argument sections her briefs contain no reference to version facts to which plaintiff testified and which lawyer opening and arguments urged jury to accept: reference to guns, handcuffs, flour and sugar floor, mattresses upended, etc.
We’ll discuss objections rulings by concerning alternative factual narra tive, which “search” is glance sans handcuffs and guns ransacking. even if objections are compel ling, would be travesty justice plaintiff be allowed prevail. If police did enter her terrify occupants by pointing “long guns” them, handcuff her her cousin, ransack ment, then her testimony they these things per jured (doubtless magnify her damages if she prevailed, already voluntarily paid damage door), because she couldn’t innocently mistaken testifying these actions. effect her is telling us: “Yes, she lied, that’s why I’m going talk just alternative theory, is Beckman, having after mistakenly breaking glanced (how could help doing so?) glance search.” glance theory true only if handcuff long ‐ gun ransack theory false, it’s false because it’s fabrication plaintiff, aided abetted by son sister. couldn’t erroneous recollection. What reason able accept theory liability presupposed plaintiff perjurer?
There every indication indeed fabrication. only witnesses called plaintiff, besides herself, *5 her son, her sister, were the defendants other officer—adverse witnesses all three whom denied tale. And sister did confirm pres ence flour sugar kitchen floor, or son his mother’s testimony that he was so frightened by incident that he wanted sleep her bed “all time.” He testified that he played basketball later that day, laughed about event with his mom, within days incident was completely gone from his thoughts, except he “can’t believe police much no more”(a remark consistent having simply broken mis take). While insisting brandished “long guns,” mother son evasive testify “long guns” they meant rifles or shotguns rather than pistols.
Balthazar take her son hospital several days after incident, presumably for psychiatric counseling, billed $623 visit (plus same amount for whatever counseling or services she received hospital). medical record diagnosis or treatment either her her son placed evidence. son given pre scription hospital, doesn’t know what, didn’t fill it.
Neither City claims adjuster who visited ment day incident, nor employee Inde pendent Police Review Authority took call reporting incident, testified plaintiff complained anything than damage door. his argument defendants’ told jury: “Even plaintiffs’ doesn’t believe clients” (clients, client, because Balthazar’s son originally *6 plaintiff, though dropped out case at some point, undisclosed reasons). The plaintiff’s counsel objected comment about not believing his clients, but judge overruled objection on ground: “This argument.” By “argument” judge must have meant that defen ‐ dants’ lawyer was drawing an inference from evidence pre ‐ sented at trial. was not an unreasonable inference, but it speculation; most lawyer could have inferred, emphasis that plaintiff’s lawyer placed on second theory liability (what we’re calling “glance in” search), that lawyer didn’t expect jury believe first theory. That may have what defendants’ law yer meant remark, it what she said. What she said sounded she might some private knowl edge that plaintiff’s lawyer disbelieved his client. The defendants acknowledge brief statement believe client “im proper.” argument, discussing theory glance search, defendants’ lawyer said: “Now, what about
seeing inside an an unreasonable search? What does inside mean? If taken literally, means every time walks window an he’s conducting a—” whereupon lawyer objected. overruled objection. de fendants’ went say “with these facts, see ing person standing inside nothing more, considering search, common sense.” Again objection, again overruled.
Evidently confused what constitutes search, because during its deliberations sent note *7 judge saying: “Can you please place points clarification upon following statement: ‘A search does require physical entry into home or apartment. Simply breaching an entry seeing inside an constitutes search.’ Please provide insight to this statement fact in court law or just general statement. Further, can you define word ‘seeing’?” The judge responded: “The law that you are to apply contained in jury instructions. Please consider all them carefully.” fact instructions had addressed briefly clearly very question that jury asked: “A does re ‐ quire physical entry home apartment. Simply breaching entry inside an constitutes search.” instruction been proposed unsuccessfully opposed de ‐ fendants’ lawyer; we’ll see shortly that excessively fa ‐ vorable to plaintiff. jury’s question quoted pas sage back judge. Had repeated instruc tion in response jury’s question, adding in struction merely “general statement” exact correct statement law therefore binding jury, word “seeing” in instruction meant everyday sense word, jury’s confu sion would almost certainly (so far one can certain such matters without interrogating jurors, bidden) dispelled. Merely tell jurors “the law you are asked apply contained instructions” failed direct them instruction dispel any confusion.
Over over again brief defendants recite mantra juries are presumed obey judge’s *8 8 12 3378 structions. true verdict consistent correct structions can’t be assumed have been based misun derstanding by jury. But false statement by jury, left uncorrected by judge, cryptic answer question submitted by jury, can under mine reliability of verdict even there actual error instructions. Clarity important as accuracy given limitations of jurors’ comprehension. See, e.g., Skidmore v. Baltimore & Ohio R.R. , F.2d 54, 64–65 (2d Cir. 1948); Dennis J. Devine , Jury Decision Making: State of Science (2012); Bethany K. Dumas, “Jury Trials: Lay Jurors, Pattern Jury Instructions, Comprehension Issues,” Tenn. L. Rev . (2000). But bobbles we’ve mentioned harmless, given collapse primary theory. That left, only alternative characterization incident broken innocent mistake police. And search resulting innocent mistake unreasonable so does violate Fourth Amendment. Maryland v. Garrison , U.S. 79, 88–89 (1987).
We even doubt what happened this case should be considered “search.” Police forced open door residence mistake, realized mistake immediately (in fact before door opened—for remember Beckman tried check forward motion battering ram), left immediately. With front him couldn’t have avoided without his eyes (which dangerous). having learned before looking ment, wasn’t using eyes search anything. Seeing can searching, isn’t always. Even before fell open, knew there nothing apartment.
This is not suggest entry is required a search; otherwise wiretap wouldn’t search. Entry neither necessary nor sufficient condition searching. an ac cidental entry, or an accidental breaking exposes interior, followed glance unrelated any interest contraband or evidence crime, followed immediate withdrawal, search. error equating with searching especially patent respect defendant, Murphy. climbing stairs behind shouted “wrong door.” When reached top stairs door Balthazar’s open. Murphy saw interior through open door. He knew wrong apartment; wasn’t fault door open when you face open you see interior. If you know you’re place—a place you’re authorized want search—the un avoidable glance through search.
A FFIRMED .