Dallas Green v. Cory Junious ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17‐1784
DALLAS GREEN,
Plaintiff‐Appellant,
v.
CORY JUNIOUS, et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 CV 9447 — Charles R. Norgle, Judge.
____________________
ARGUED SEPTEMBER 27, 2018 — DECIDED AUGUST 28, 2019
____________________
Before FLAUM, MANION, and SYKES, Circuit Judges.
SYKES, Circuit Judge. In November 2010 Dallas Green was
walking through a Citgo parking lot late at night when an
unmarked Chicago police vehicle turned into the lot. He
began to run as the vehicle approached, arousing the suspi‐
cion of the four officers inside. One officer chased him on
foot and saw him drop and pick up a handgun. Green fled
into a residential neighborhood, where another officer
picked up the chase and caught up with him in the backyard
2 No. 17‐1784
of a home. In the officer’s version of the story, Green began
to raise a gun in his direction, and the officer fired five shots
in response, wounding Green in the hand and chest. Green
denied that he had a gun at any time on the night in ques‐
tion.
At the time of these events, Green was on probation for a
felony drug conviction. A Cook County circuit judge re‐
voked his probation, finding that Green possessed a gun
during this encounter. Green thereafter sued the officers and
the City of Chicago for damages under 42 U.S.C. § 1983
alleging a multitude of federal constitutional and state‐law
violations. The claims against the officers proceeded to trial,
but only one—a Fourth Amendment excessive‐force claim
against the officer who shot him—was ultimately submitted
to the jury. The jurors returned a verdict for the officer.
Green moved for a new trial, arguing primarily that the
district judge improperly instructed the jury that the state
court’s gun‐possession finding was conclusive on that
factual point. The judge denied the motion.
We affirm. The contested jury instruction was sound.
Green’s excessive‐force claim was premised on his conten‐
tion 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
No. 17‐1784 3
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.” As he saw Green raise the gun, the officer fired
five shots in rapid succession, hitting Green in the hand and
chest. Green denied that he had a gun at any time on the
night in question. He testified that when he heard the officer
approaching the backyard, he dropped face down on the
ground and yelled not to shoot because he was unarmed.
Green was handcuffed and taken to the hospital. Police
recovered a black handgun two backyards away, or about
50 feet from the shooting location.
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
4 No. 17‐1784
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 § 1983 for multiple
federal constitutional violations and additional violations of
state law. The defendants removed the case to federal court.
The district court dismissed most of the claims early in the
litigation, including the Monell claim against the City of
Chicago. See Monell v. Dep’t of Soc. Servs. of City of N.Y.,
436 U.S. 658 (1978). That claim, the judge said, consisted of
“mere conclusory, boiler‐plate allegations.” Green’s second
amended complaint accused the officers of using excessive
force in violation of the Fourth Amendment and failing to
intervene to prevent the violation. Those claims were tried to
a jury.
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 find‐
ing. 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 rea‐
sonable under the circumstances.
No. 17‐1784 5
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 proceed‐
ed 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 be‐
gan 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 Rule 59(a) of the
Federal Rules of Civil Procedure, reiterating his objection to
the Gilbert instruction but also raising other claims of error.
He moved to extend the deadline to file a supplemental
memorandum with citations to the trial record. The judge
declined to extend the time because Green “delayed for
17 days before ordering transcripts of [a] brief trial of a four
6 No. 17‐1784
year old case.” The judge then denied the Rule 59(a) motion,
setting up this appeal.
II. Discussion
Green reprises some of the arguments raised in his
posttrial motion—namely, the challenge to the Gilbert in‐
struction 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 eviden‐
tiary 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 preclu‐
sive effect of the state court’s gun‐possession finding. The
No. 17‐1784 7
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 discipli‐
nary 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 § 1983 suit cannot
pursue a claim for relief that implies the invalidity of an
extant criminal conviction; Edwards extends that doctrine to
rulings by prison disciplinary tribunals. Because Gilbert
wouldn’t concede that he punched the guard, he had to rest
his case without presenting any evidence about the subse‐
quent assault—the core of his case. The judge granted the
guards’ motion for a directed verdict. Gilbert, 512 F.3d at 901.
8 No. 17‐1784
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 liti‐
gant 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 dur‐
ing the fracas at the chuckhole, that any state‐
ments 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.
Id.
No. 17‐1784 9
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 con‐
victed in state court of aggravated driving under the influ‐
ence. Id. at 353–55. While appealing that conviction, he filed
a § 1983 action in federal court alleging claims for false arrest
and excessive force. Id. at 354. At trial the judge instructed
the jury on the preclusive effect of the conviction, explaining
that Sanchez’s conviction established that he was “driving
under the influence of alcohol or drugs at the time of his
arrest.” Id. Sanchez lost the civil lawsuit and argued on
appeal that the judge should not have given the preclusion
instruction. Id. at 356.
We disagreed. We explained that although Heck did not
categorically block the suit, the state criminal judgment had
preclusive effect under traditional collateral‐estoppel analy‐
sis. Id. at 357. Sanchez therefore could not dispute the find‐
ing 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
10 No. 17‐1784
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 testi‐
fied 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 force and failure to intervene.
Green claimed, for example, that he dropped a cell phone—
not a gun—in the Citgo parking lot, and that Officer
Nwagwu “suddenly and without warning” pointed and
fired his weapon at Green “without cause or justification.”
The probation‐revocation finding precluded him from
relitigating the gun‐possession issue whenever it arose
during trial.
Green also quarrels with the specific wording of the pre‐
clusion 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.
FED. R. CIV. P. 51(c); see also Schobert v. Ill. Dep’t of Transp., 304
F.3d 725, 729 (7th Cir. 2002) (holding that the “objection
must be specific enough that the nature of the error is
brought into focus” and that “pragmatically speaking the
district court must be made aware of the error prior to
instructing the jury”). Regardless, trial judges have “substan‐
tial discretion [on] the precise wording of the instructions so
long as the final result, read as a whole, completely and
correctly states the law.” Karahodzic v. JBS Carriers, Inc., 881
F.3d 1009, 1016 (7th Cir. 2018). Here the judge took Gilbert’s
recommended instruction and reasonably adapted it to fit
this case.
No. 17‐1784 11
Finally, Green protests that the judge delivered the pre‐
clusion 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 evi‐
dence.” 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 testimo‐
ny 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 testimo‐
ny 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
12 No. 17‐1784
admonished the jurors to “keep in mind” that he had in‐
structed 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 who preemptively introduces
evidence of a prior conviction on direct examination may not
on appeal claim that the admission of evidence was error.”
Ohler v. United States, 529 U.S. 753, 760 (2000); see also Clarett,
657 F.3d at 670–71 (holding that Ohler applies in civil cases).
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 mem‐
orandum 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