Darrell Cannon v. Jon Burge ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1529
DARRELL CANNON,
Plaintiff-Appellant,
v.
JON BURGE, former Chicago Police
Lieutenant, et al.,
Defendants-Appellees.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:05-CV-02192 — Amy St. Eve, Judge.
ARGUED JANUARY 22, 2013 — DECIDED MAY 27, 2014
Before RIPPLE, ROVNER, Circuit Judges, and BARKER, District
Judge.*
ROVNER, Circuit Judge. This appeal casts a harsh light on
some of the darkest corners of life in Chicago. The plaintiff, at
*
The Honorable Sarah Evans Barker, of the United States District Court for
the Southern District of Indiana, sitting by designation.
2 No. 12-1529
the time of the events giving rise to this suit, was a general in
the El Rukn street gang, out on parole for a murder conviction,
when he became embroiled in a second murder. Among the
defendants are several disgraced police officers, including the
infamous Jon Burge, a man whose name evokes shame and
disgust in the City of Chicago.1 At issue is whether the plaintiff,
who long ago settled his claims against the defendants, should
be allowed to have a second chance to litigate his case, on the
grounds that the defendants engaged in such an extensive
cover-up of the police torture scandal at the center of this case
that the plaintiff was effectively denied his day in court the first
time around. The district court held that the settlement
precluded further litigation and granted summary judgment
in favor of the defendants. We affirm.
I.
In 1971, Darrell Cannon, the plaintiff here, was convicted of
the murder of Emanuel Lazar and was sentenced to 100 to 200
1
In a career spanning more than twenty years, Jon Burge rose to the rank
of Commander in the Chicago Police Department before he was fired in
1993 for torturing and abusing suspects in order to obtain confessions.
More than one hundred African-American arrestees accused Burge and
officers working under him of engaging in sadistic acts. Burge was later
prosecuted and convicted on charges of obstruction of justice and perjury
related to lies he told during lawsuits for civil damages. He is currently
serving a fifty-four month sentence in a federal penitentiary. See United
States v. Burge, 711 F.3d 803 (7th Cir.), cert. denied, 134 S. Ct. 315 (2013); Press
Release, U.S. Department of Justice, Former Chicago Police Officer Jon
Burge Sentenced for Lying About Police Torture (Jan. 21, 2011) (available
at http://www.justice.gov/opa/pr/2011/January/11-crt-090.html (last visited
May 23, 2014)).
No. 12-1529 3
years in prison. After serving twelve years of that sentence,
Cannon was paroled in January 1983. Approximately ten
months later, on October 26, 1983, Cannon found himself
behind the wheel of a car, traveling down the Bishop Ford
Freeway2 in Chicago, as one of his fellow El Rukn generals,
Andrew McChristian, murdered Darrin Ross in the back seat.
Cannon then followed McChristian’s directions to take the next
exit off the freeway, driving to a field behind the Altgeld
Gardens housing complex. There, McChristian and Cannon
dumped Ross’s body onto the side of a dirt road adjoining the
field. Not knowing whether Ross was dead or alive, Cannon
then drove McChristian to a pool hall where Cannon picked up
his own car and drove home.
A few days later, on November 2, 1983, Cannon was
arrested for Ross’s murder by three of the defendants in this
case, Sergeant John Byrne and Detectives Peter Dignan and
Charles Grunhard. These men worked for the Chicago Police
Department’s Area 2 Violent Crimes division under two other
defendants in this case, then-Commander Leroy Martin and
then-Lieutenant Jon Burge. Together with police detectives
Michael Bosco and Daniel McWeeny, Byrne, Dignan and
Grunhard threatened and tortured Cannon until he confessed
that he knowingly3 participated in the murder of Darrin Ross.
2
At the time of the murder, this stretch of highway was known as the
Calumet Expressway. It was renamed the Bishop Ford Highway in 1996. In
his 2010 deposition, Cannon referred to the road as “the Bishop Ford.”
3
Cannon concedes that he was driving the car in which the murder was
carried out but contends that he did not know that McChristian was going
(continued...)
4 No. 12-1529
All of this was accompanied by race-based taunts and threats.
Each time Cannon thought he was safely away from his
tormentors, he recanted his confession, and each time he
recanted, he was subjected to more torture.
Almost immediately after leaving police custody, Cannon
recanted his confession again and began to complain about the
treatment he received at the hands of these officers. Five days
after his arrest, his wife filed a complaint on his behalf with the
Chicago Police Department’s Office of Professional Standards
(“OPS”). But Byrne, Dignan and Grunhard lied to OPS, and the
complaint was dismissed as "not sustained." At his criminal
trial in 1984, Cannon moved to suppress his confession on the
grounds that it was obtained through torture and coercion.
Again Byrne, Dignan and Grunhard as well as McWeeny lied,
this time under oath, denying that Cannon had been tortured.
The court denied the motion to suppress and Cannon's
confession was used at trial. In 1984, Cannon was convicted of
Darrin Ross's murder and sentenced to life in prison.
In September 1986, two years after his conviction, Cannon
filed a pro se federal complaint from prison, asserting for a
third time that Byrne, Dignan and Grunhard had mistreated
him. In particular, he alleged that Dignan beat him on the knee
with a flashlight; that Dignan played “Russian Roulette” with
him with an apparently loaded shotgun, repeatedly placing the
barrel in Cannon’s mouth and pulling the trigger when
Cannon refused to answer questions; that Grunhard, Dignan
3
(...continued)
to murder Ross. He explains that his actions following the murder were due
to shock at what had just occurred.
No. 12-1529 5
and Byrne lifted him up from behind by his handcuffs, causing
unbearable pain; and that Byrne pulled down Cannon’s pants
and shorts and applied an electric cattle prod to his testicles,
penis and the inside of his mouth repeatedly over an hour-long
period as the officers questioned Cannon about Ross’s murder.
Cannon sought from each officer “$15,000 in compensatory
and punitive damages, plus physical injuries, pain, suffering,
emotional and mental distress” as well as other relief the court
deemed just and proper. R. 28-2, at 42-48. The court appointed
attorney E. Paul Lanphier to represent Cannon. Lanphier
deposed Byrne, Dignan, Grunhard and McWeeny and all four
continued to lie under oath and deny that they had abused
Cannon. Both Cannon and Lanphier suspected that Cannon
was not the only arrestee who had been abused by these
officers – indeed, there had been some news reports of other
incidents—but they did not know that the abuse against
African American men by Area 2 officers was pervasive and
occurred with the complicity of Burge. They did not know that
many of the same bizarre and sadistic techniques that these
officers used against Cannon had also been used against many
other African American men who had been arrested in Area 2.
Despite their suspicions, Lanphier did not ask the City or the
individual defendants about any other victims of the Area 2
officers.
In 1988, Lanphier assessed Cannon's case in light of the
facts known to him at the time: Cannon was now a twice-
convicted murderer, a long-time gang member, sentenced to
life in prison, accusing his arresting officers of torture. Al-
though Lanphier believed that the second murder conviction
would be inadmissible at the civil trial, he advised Cannon that
6 No. 12-1529
the first murder conviction would be considered relevant and
admissible. There was no physical evidence to corroborate
Cannon's claims and the officers had repeatedly denied the
allegations, including under penalty of perjury. Lanphier
assessed Cannon's chances of prevailing as slim and advised
Cannon to settle for the $3000 nuisance value offered by the
defendants. R. 391-7, at 2-4, 6. Cannon accepted his lawyer's
advice and settled the suit in February 1988, signing a broadly
worded release of his claims against the named defendants as
well as the City of Chicago, which was joined for the purpose
of settling the case:
In consideration of the hereinafter-indicated settle-
ment and Judgment entered thereon, Plaintiff agrees
to indemnify and hold harmless the City of Chicago,
its officers, agents and employees including, but not
limited to, the remaining Defendant, from any
claims, losses, damages or expenses incurred, or
which may be incurred, by reason of the incident
which was the basis of the litigation.
…
Plaintiff understands, upon advice of his counsel,
and agrees that such Judgment is a final and total
settlement of all claims he has, or may have in the
future, arising either directly or indirectly out of the
incident which was the basis of this litigation, and
that such finality is applicable to the remaining
Defendant, the CITY OF CHICAGO, its officers,
agents and employees.
No. 12-1529 7
Rawle 28-2, at 38-39 (hereafter, the “1988 Stipulation”). After costs
and fees, Cannon netted $1247.70. The case against the officers
was dismissed with prejudice, and final judgment was entered
in favor of Cannon and against the City of Chicago. The 1988
Stipulation was incorporated by reference into the judgment
order. R. 28-2, at 37-40; 50-51.
In the meantime, Cannon appealed his conviction. The
Illinois appellate court affirmed the denial of his motion to
suppress his confession but remanded the case to the trial court
for a hearing on the prosecution's use of peremptory chal-
lenges to exclude African American jurors. After holding that
hearing, the trial court ordered a new trial. People v. Cannon,
688 N.E.2d 693, 693-94 (Ill. App. 1st Dist. 1997) (“Cannon I”). At
the subsequent retrial in 1994, the court declined to revisit the
issue of the voluntariness of Cannon's confession and once
again allowed the confession to be used as evidence. Cannon
was again found guilty of the murder of Darrin Ross, and
again sentenced to life in prison.
Cannon appealed again and, this time, the court vacated the
conviction and the sentence, and remanded for a new hearing
on the voluntariness of Cannon's confession. Cannon I, 688
N.E.2d at 694. The court noted that Cannon had presented the
trial court with new evidence in support of his motion to
reconsider the ruling from the first trial. In particular, Cannon
wished to present (1) a police log indicating that his arresting
officers had checked out a shotgun on the day of his arrest,
contrary to their testimony at his first suppression hearing that
they were not in possession of a shotgun; (2) deposition
testimony from Byrne and Dignan in a related civil action; (3)
photos taken by OPS of the site where Cannon said he was
8 No. 12-1529
tortured; (4) testimony of sixteen arrestees who filed charges
with OPS that they had been tortured by some of the same
officers at Area 2; and (5) evidence that cattle prods small
enough to fit in a car’s glove compartment existed in 1983.
Cannon also supported his motion with an offer of proof
stating that the defense, if allowed, would have presented the
testimony of eleven other men who had been mistreated by
some of the same officers who tortured Cannon. Cannon I, 688
N.E.2d at 694-96.
The court concluded that ordinary principles of collateral
estoppel should not bar re-litigation of Cannon’s motion to
suppress because this was no ordinary case. First, the judge
who originally ruled on Cannon’s motion to suppress in his
first trial was Thomas Maloney, himself an ignominious figure
in Chicago politics who was later convicted of accepting bribes
to fix murder cases during the same time period as Cannon’s
original trial. See Bracy v. Gramley, 520 U.S. 899 (1997). Second,
Cannon was now prepared to present evidence that the officers
who procured his confession regularly used torture to coerce
confessions. And third, Cannon had new evidence of coercion
that was not available at his 1984 trial. The court found that
new evidence and “special circumstances” were well-recog-
nized exceptions to the general rule barring re-litigation of a
decided motion, and that both exceptions were relevant in
Cannon’s case. The court surveyed the evidence that war-
ranted application of the exceptions:
Reports prepared by the Office of Professional
Standards of the Chicago Police Department, sur-
veying the alleged systematic abuse of suspects at
No. 12-1529 9
Area 2 headquarters, were not available to Cannon's
lawyer in 1984.
Nothing in the record demonstrates that Cannon's
lawyer knew or should have known of the claims of
brutality made by other suspects questioned at Area
2. In addition, newly discovered or not, the evidence
of 28 other Area 2 arrestees, 16 of them questioned
by some of the officers who questioned Cannon,
amount to “special circumstances” that justify a new
hearing of the motion to suppress.
Cannon I, 688 N.E.2d at 697 (internal citation omitted). In
December 1997, the appellate court therefore remanded the
case for a new suppression hearing that included the new
evidence Cannon wished to present.
In January 2001, after the trial court held a hearing on
Cannon’s renewed motion to suppress but before the court
ruled on that motion, Cannon agreed to plead guilty to the
lesser charges of armed violence and conspiracy to commit
murder, in exchange for a total sentence of forty years’
imprisonment. Cannon stipulated that the witnesses who were
called to testify in the second trial would testify consistently at
any future trial, and that assistant state’s attorney Henry
Simmons, who took handwritten notes of Cannon’s confession
in 1983, would testify in conformance with his prior testimony.
Without admitting guilt, Cannon agreed that the evidence
presented at the prior trial and the statement recorded by
Simmons would be sufficient to constitute proof of guilt of the
charges of armed violence and conspiracy to commit murder.
See North Carolina v. Alford, 400 U.S. 25, 37 (1970) (“An individ-
10 No. 12-1529
ual accused of crime may voluntarily, knowingly, and under-
standingly consent to the imposition of a prison sentence even
if he is unwilling or unable to admit his participation in the acts
constituting the crime. Nor can we perceive any material
difference between a plea that refuses to admit commission of
the criminal act and a plea containing a protestation of inno-
cence when … a defendant intelligently concludes that his
interests require entry of a guilty plea and the record before the
judge contains strong evidence of actual guilt.”). With full
credit for the time Cannon had already served, the parties
agreed that he would be eligible for release in August 2003.
At some point, it became apparent to Cannon that, irrespec-
tive of his plea agreement with the State, the Illinois Prisoner
Review Board (hereafter “IPRB” or the “Board”) had con-
cluded that Cannon was not eligible for release until July 2064,
some sixty-one years beyond the date agreed to in his plea. As
we noted above, at the time he was arrested for Ross’s murder,
Cannon was on parole for the 1971 murder of Emanuel Lazar,
and had served only twelve years of his 100 to 200 year
sentence for that crime. Following his conviction for Ross’s
murder, in August 1984 Cannon was retroactively declared in
violation of his parole in the Lazar case, and his parole was
revoked as of his November 2, 1983 arrest date. In February
2003, the IPRB held a hearing at which the Board was advised
of the terms of Cannon’s plea agreement with the State. The
State did not oppose Cannon’s parole at that hearing. The IPRB
nonetheless refused to release Cannon on parole, and gave no
assurances that he would be released prior to July 2064. The
IPRB continued Cannon’s case for another parole hearing in
2006.
No. 12-1529 11
Unsatisfied with that result, in October 2003, Cannon
moved in post-conviction proceedings to vacate his plea,
contending that he had received ineffective assistance of
counsel because his lawyers had not investigated the effect of
the plea on the 1984 retroactive revocation of his parole. He
also contended that the State had failed to adhere to its side of
the plea bargain, and that the plea could not be considered
knowing, voluntary and intelligent under the circumstances.
In an April 2004 filing, the State agreed that Cannon had
received ineffective assistance when his lawyers failed to
investigate the effect of the plea on his parole, and agreed that
the plea should be vacated. The State conceded that it too
assumed that Cannon would be released in August 2003, but
now agreed that any guilty plea in the 1983 case would
support revocation of parole in the 1971 case. In order to honor
the understanding of the parties at the time of the plea, the
State therefore agreed to dismiss the substantive case against
Cannon. The State emphasized that it dismissed the Ross
murder charges solely to rectify the procedural problem
created when neither side anticipated the effect of the plea
agreement on Cannon’s parole status for the 1971 conviction.
The State continued to assert that Cannon was factually guilty
of the charges to which he pled in 2001.
In June 2004, Cannon received a full parole revocation
hearing before the IPRB. The Board again concluded that
Cannon violated his parole in the 1971 case by committing the
crime of murder in 1983. The Board stated that it analyzed the
evidence without giving any consideration to Cannon’s
coerced statement to the Area 2 officers except for portions of
the statement that Cannon admitted in motions and at trial.
12 No. 12-1529
The Board first considered Cannon’s accountability using the
1983 grand jury testimony of Tyrone McChristian, the brother
of Andrew McChristian, as well as Cannon’s own sworn
testimony.4 In grand jury proceedings, Tyrone testified that
Cannon and McChristian were both “generals” in the El Rukn
street gang, that Ross had stolen drug money, that Cannon was
intent on carrying out McChristian’s plan to seek revenge on
Ross, and that Cannon retrieved a gun for McChristian and
then drove the car so that McChristian could shoot Ross. The
Board found that Cannon’s proximity to the murder and his
subsequent actions in aiding McChristian to dispose of Ross’s
body led to only one conclusion: that Cannon was accountable
for the murder of Ross, that Cannon voluntarily attached
himself to McChristian’s plan and that Cannon shared
McChristian’s intent.
The Board then considered Cannon’s accountability based
solely on his own testimony, again excluding his coerced
statement except to the extent it was admitted by Cannon’s
other testimony. According to Cannon’s own account of Ross’s
murder, on October 26, 1983, Cannon met Tyrone at a pool
hall. Tyrone told Cannon that McChristian wanted to meet him
at his girlfriend’s house. Tyrone drove Cannon to the house of
McChristian’s girlfriend, where McChristian and Ross were
waiting. McChristian told Cannon that he was meeting some
people and wanted Cannon to “watch his back.” Cannon,
McChristian and Ross then all took a ride in McChristian’s car.
With Cannon driving, McChristian and Ross argued about
4
We will refer to Tyrone McChristian as “Tyrone” and to Andrew
McChristian as “McChristian.”
No. 12-1529 13
drugs and a robbery. McChristian then brandished a revolver
and shot Ross twice in the head. A second round of gunfire
ensued. Either Cannon or McChristian retrieved a towel from
the trunk to contain the blood from the victim’s head. Cannon
and McChristian then drove to a prairie behind the Altgeld
Gardens housing complex and dumped Ross’s body in the
prairie. Based on this account, the IPRB rejected Cannon’s
claims that he did not see the gun, that he did not know that
McChristian, his friend of nineteen years, had a gun, and that
he did not know that McChristian was about to kill Ross. The
Board found Cannon’s actions following the murder to be
indicative of consciousness of guilt. In particular, Cannon tried
to keep Ross’s blood from staining the car, helped dispose of
the body, left the scene, failed to notify the police, and failed to
dissociate himself from McChristian during or after the crime.
The Board, therefore, again revoked Cannon’s parole.
Cannon then brought suit in state chancery court against
the IPRB, asking for immediate release or for a reversal of the
Board’s revocation decision and a new hearing before the IPRB.
The chancery court noted that, although Cannon had entered
a guilty plea in 2001, he had not admitted guilt, stipulating
only that the factual basis presented by the State was sufficient
to support a conviction. The chancery court ordered a new
hearing for Cannon before the IPRB, and directed the Board to
reconsider its revocation of Cannon’s parole without any
reliance on Cannon’s confession or on Tyrone’s grand jury
testimony, which Tyrone later asserted was also a product of
police coercion. On reconsideration, the IPRB released Cannon
on parole. By that point, Cannon had been in prison for
twenty-three years following his arrest for Ross’s murder.
14 No. 12-1529
In the meantime, in 2005, after the State agreed to dismiss
the substantive case against him, Cannon filed this suit under
42 U.S.C. § 1983, seeking damages from the City of Chicago,
the officers involved in his torture, and other City employees
involved in covering up the torture.5 Cannon’s claims against
the City of Chicago and City employees (hereafter “the City
Defendants”) included (1) deprivation of the right to a fair trial;
(2) false arrest and false imprisonment; (3) torture and physical
abuse; (4) coercive interrogation; and (5) a Monell policy claim.
See Monell v. Dept of Social Servs. of City of New York, 436 U.S.
658 (1978). Cannon also asserted state law claims against these
same defendants, including (1) false arrest and imprisonment;
(2) malicious prosecution; (3) intentional infliction of emotional
distress; (4) conspiracy; (5) respondeat superior; and (6) indemni-
fication. The district court concluded that the plain language of
the 1988 Stipulation that Cannon signed settling his original
claims against the City and the original defendants precluded
Cannon from bringing new claims against the City Defendants.
The court then considered whether the 1988 Stipulation could
be invalidated because of the City Defendants’ fraudulent
concealment or under the doctrine of unconscionability. The
court ultimately held that neither doctrine could save Cannon’s
present lawsuit in light of the broad release he signed in
settling the 1986 case. Cannon v. Burge, 2006 WL 273544 (N.D.
Ill. Feb. 2, 2006) (“Cannon II”); Cannon v. Burge, 2007 WL
2278265 (N.D. Ill. Aug. 8, 2007) (“Cannon III”); Cannon v. Burge,
5
Cannon also sued Cook County, the Cook County State’s Attorney
Richard Devine, and the Cook County State’s Attorney’s office, but those
parties are not a part of this appeal.
No. 12-1529 15
2011 WL 4361529 (N. D. Ill. Sept. 19, 2011) (“Cannon IV”).
Cannon appeals.
II.
On appeal, Cannon contends that the defendants should
not benefit from a settlement agreement that was secured by
fraud. He argues that the 1988 Stipulation could not bar claims
that did not yet exist and were not contemplated by the parties
at the time of the settlement. Cannon also asserts that the
defendants’ conduct placed him in such a grossly unequal
bargaining position that it would be unconscionable to hold
him to the terms of the 1988 Stipulation. Finally, he maintains
that the district court erred when it refused to allow him to
amend his complaint to add a civil RICO claim.6 We review the
district court’s grant of summary judgment de novo, examining
the record in the light most favorable to Cannon and constru-
ing all reasonable inferences from the evidence in his favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Naficy v.
Illinois Dep’t of Human Servs., 697 F.3d 504, 509 (7th Cir. 2012);
Norman-Nunnery v. Madison Area Technical Coll., 625 F.3d 422,
6
The district court denied Cannon’s motion to amend his complaint to add
a civil RICO claim, citing our decision in Evans v. City of Chicago, 434 F.3d
916 (7th Cir. 2006), overruled on other grounds by Hill v. Tangherlini, 724 F.3d
965 (7th Cir. 2013). Cannon sought damages for lost employment opportu-
nities during the time he was imprisoned. In Evans, we held that “foregone
earnings stemming from the lost opportunity to seek or gain employment
are, as a matter of law, insufficient to satisfy § 1964(c)'s injury to ‘business
or property’ requirement where they constitute nothing more than
pecuniary losses flowing from what is, at base, a personal injury.” 434 F.3d
at 930-31. Cannon concedes that Evans controls but asks us to revisit the
question. We decline to do so.
16 No. 12-1529
428 (7th Cir. 2010). Summary judgment is appropriate when
there are no genuine disputes of material fact and the movant
is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
Naficy, 697 F.3d at 509.
A.
We begin with the 1988 Stipulation itself. Cannon and the
City Defendants agree that the 1988 Stipulation settling the
original suit is a contract governed by Illinois law. Cushing v.
Greyhound Lines, Inc., 991 N.E.2d 28, 92 (Ill. App. 1st Dist. 2013)
(a settlement agreement is considered a contract, and construc-
tion and enforcement of settlement agreements are governed
by principles of contract law). See also Haisma v. Edgar, 578
N.E.2d 163, 168 (Ill. App. 1st Dist. 1991) (same). A release
within a settlement agreement also is governed by contract
law. Farm Credit Bank of St. Louis v. Whitlock, 581 N.E.2d 664,
667 (Ill. 1991); Rakowski v. Lucente, 472 N.E.2d 791, 794 (Ill.
1984). The parties disagree about the scope of the release in the
1988 Stipulation, and whether we may consider extrinsic
evidence in determining the scope. “Where a written agree-
ment is clear and explicit, a court must enforce the agreement
as written. Both the meaning of the instrument, and the
intention of the parties must be gathered from the face of the
document without the assistance of parol evidence or any other
extrinsic aids.” Rakowski, 472 N.E.2d at 794. See also Whitlock,
581 N.E.2d at 667 (“[t]he intention of the parties to contract
must be determined from the instrument itself, and construc-
tion of the instrument where no ambiguity exists is a matter of
law”); Hurd v. Wildman, Harrold, Allen & Dixon, 707 N.E.2d 609,
613 (Ill. App. 1st Dist. 1999) (where a written agreement is clear
No. 12-1529 17
and explicit, a court must enforce the agreement as written
without the assistance of parol evidence or any extrinsic aids);
Haisma, 578 N.E.2d at 163 (where there is no ambiguity in the
language of a settlement agreement, the determination of the
intent of the parties is governed by the contract language
alone). In contrast, when a contract is ambiguous, construction
of the agreement is a question of fact, and the finder of fact
may consider parol evidence in determining the intent of the
parties. Whitlock, 581 N.E.2d at 667.
In order to determine the scope of the release, we must
therefore consider whether the contract is “clear and explicit”
or whether it is ambiguous. In Illinois, a contract is considered
ambiguous if it is capable of being understood in more than
one sense. Whitlock, 581 N.E.2d at 667; Farmers Auto. Ins. Ass’n
v. Kraemer, 857 N.E.2d 691, 693 (Ill. App. 5th Dist. 2006).
Cannon, who was represented by counsel in the 1988 settle-
ment, signed a Stipulation that purported to be “a final and
total settlement of all claims he has, or may have in the future,
arising either directly or indirectly out of the incident which
was the basis of this litigation, and that such finality is appli-
cable to the remaining Defendant, the CITY OF CHICAGO, its
officers, agents and employees.”
Cannon does not assert that any particular part of the
Stipulation is “capable of being understood in more than one
sense.” Whitlock, 581 N.E.2d at 667. Instead, he points to a
number of decisions in the appellate courts in Illinois that
appear to allow the consideration of parol evidence in deter-
mining the intention of the parties, even when there is no
ambiguity on the face of the contract. For example, in Carlile v.
18 No. 12-1529
Snap-on Tools, 648 N.E.2d 317 (Ill. App. 4th Dist. 1995), the
court commented:
It is sometimes said that a release is a contract, and
the same rules which apply to other contracts
(particularly the parol evidence rule) apply to
releases. It appears, however, that the courts are
much more careful in applying the parol evidence
rule to releases than they are to other contracts. The
intention of the parties controls the scope and effect
of a release, and this intent “is discerned from the
language used and the circumstances of the trans-
action.”
648 N.E.2d at 321 (quoting Carona v. Illinois Cent. Gulf R.R. Co.,
561 N.E.2d 239, 242 (Ill. App. 5th Dist. 1990) (emphasis sup-
plied in Carlile)). See also Carona, 561 N.E.2d at 242 (“It is well
established that the intention of the parties controls the scope
and effect of the release, and that this intent is discerned from
the language used and the circumstances of the transaction.”);
Chubb v. Amax Coal Co., 466 N.E.2d 369, 372 (Ill. App. 5th Dist.
1984) (the intention of the parties controls the scope and effect
of a release, and this intent is discerned from the language used
and the circumstances of the transaction); Whitehead v. Fleet
Towing Co., 442 N.E.2d 1362, 1365 (Ill. App. 5th Dist. 1982) (the
intention of the parties controls the scope and effect of the
release and such intent is discerned from the language used
and the circumstances of the transaction).
So there are two seemingly inconsistent lines of cases in
Illinois regarding whether a court may consider parol evidence
in interpreting an unambiguous settlement agreement. The
No. 12-1529 19
inconsistency can be resolved, though, by following the
“circumstances of the transaction” language back to its source.
To do so, we must travel nearly 150 years, to a decision of the
Illinois Supreme Court interpreting a release that was procured
by fraud. See Parmelee v. Lawrence, 44 Ill. 405 (1867); 1867 WL
1574 (Ill. 1867). Parmelee addressed (and rejected) a strict
common law rule that “the full release of one of several joint
tortfeasors released all, even if the release contained an express
reservation of rights against the others.” Porter v. Ford Motor
Co., 449 N.E.2d 827, 829 (Ill. 1983) (interpreting Parmelee). In
Parmelee, Lawrence signed a release after he was first presented
with two other draft releases. With each of the earlier drafts,
Lawrence feared that the release of one obligor would impair
his claims against co-obligors. He therefore refused to sign
those drafts. He was then presented with a draft that expressly
purported to reserve his claims against co-obligors, and he was
led to believe it would have that effect. There was evidence
that the drafter of the document likely knew that the reserva-
tion would be trumped by the common law rule. In that
instance, where the document on its face unambiguously
reserved Lawrence’s claims against the co-obligors, the Illinois
Supreme Court refused to apply the strict common law rule
that releasing one obligor would operate to release all:
But a release, like every other written instrument,
must be so construed as to carry out the intention of
the parties. This intention is to be sought in the
language of the instrument itself when read in the
light of the circumstances which surrounded the
transaction.
20 No. 12-1529
Parmelee, 44 Ill. 405; 1867 WL 1574 at *3. The court considered
the circumstances surrounding the signing of the release and
pronounced it “a dishonest scheme.” Parmelee, 44 Ill. 405; 1867
WL 1574, at *4. The court rejected older cases adhering to the
strict common law rule and found that “the weight of the
modern authorities is against these cases, and in favor of the
more reasonable rule, that where the release of one of several
obligors shows upon its face, and in connection with the
surrounding circumstances, that it was the intention of the
parties not to release the co-obligors, such intention, as in the
case of other written contracts, shall be carried out[.]” Parmelee,
44 Ill. 405, 1867 WL 5174, at *5.
The Illinois Supreme Court had an opportunity to interpret
Parmelee more than one hundred years later. In Porter, a bank
representing the estate of the plaintiff’s husband settled a
negligence action against a driver who caused a crash that
resulted in his death. The bank, as administrator of the estate,
signed a settlement broadly releasing the driver, his insurer,
and any person or company liable “in his stead” from all
claims arising from the husband’s death. The plaintiff then
sought to sue Ford Motor Company, the manufacturer of the
Ford Pinto that her husband was driving at the time of his
death. Relying primarily on Parmelee, the plaintiff contended
that the
court should have focused on the intent of the
parties in executing the release rather than looking
at the language of the document standing alone. The
intent of the parties … was to release only [the
driver] and his insurer from liability. The prime
indicator of this intention … is that at the time the
No. 12-1529 21
document was executed, the only defendant in the
lawsuit was [the driver] and a claim against Ford
had not even been contemplated by the plaintiff.
Porter, 449 N.E.2d at 829. The Illinois Supreme Court disagreed
with this broad reading of Parmelee and noted that:
The Parmelee holding does not require … that a
release be construed as a release of only those
persons expressly named. Rather, it holds that an
unconditional release of one co-obligor releases all
unless a contrary intent appears from the face of the
instrument.
Porter, 449 N.E.2d at 830. Because the release contained no
express reservation of rights against other parties but instead
was a “full or unqualified release as to one indivisible injury
given to any of those concurring in its cause,” the release
served as a bar to the plaintiff’s claims against Ford Motor.
Porter, 449 N.E.2d at 830-31. This was so even though at the
time the release was signed, the plaintiff had not yet contem-
plated a claim against Ford. Porter, 449 N.E.2d at 829.
What does all of this mean for Cannon? Parmelee cannot
reasonably be read to uniformly allow the consideration of
parol evidence in interpreting an unambiguous release. In
reality, Parmelee chronicled an instance of fraud in the induce-
ment. See Jordan v. Knafel, 880 N.E.2d 1061, 1069 (Ill. App. 1st
Dist. 2007) (fraud in the inducement of a contract is a defense
that renders the contract voidable at the election of the injured
22 No. 12-1529
party).7 In fact, the Parmelee court held the parties to the
unambiguous language of the release even though the com-
mon law rule held to the contrary. To hold otherwise would
have allowed the drafter of the document to fraudulently
induce Lawrence to sign a release that had the opposite effect
of its plain, unambiguous language. The Illinois courts of
appeal appear to have taken the “circumstances of the trans-
action” language from Parmelee out of context and applied it
broadly to allow the consideration of parol evidence in
construing the intent of the parties to an unambiguous release.
But the Illinois Supreme Court has embraced no such rule,
instead consistently holding that, when a contract is unambigu-
ous on its face, the intent of the parties must be construed
without consideration of parol evidence. Whitlock, 581 N.E.2d
at 667; Rakowski, 472 N.E.2d at 794. Our role in interpreting a
question of state law is to predict how the highest court of the
state would answer the question. In re Crane, 742 F.3d 702, 707-
08 (7th Cir. 2013) (for a question of state law, our role is to
predict how the Illinois Supreme Court would decide the
question); Pippen v. NBCUniversal Media, LLC, 734 F.3d 610, 615
(7th Cir. 2013) (in diversity action, we must predict how the
state's highest court would answer the question if asked). In
this instance, we have no need to predict how the Illinois
Supreme Court would rule: the court has already spoken. We
7
As was the case in Parmelee, “the party seeking such relief must establish
that the representation was: (1) one of material fact; (2) made for the
purpose of inducing the other party to act; (3) known to be false by the
maker, or not actually believed by him on reasonable grounds to be true,
but reasonably believed to be true by the other party; and (4) was relied
upon by the other party to his detriment.” Jordan, 880 N.E.2d at 1069.
No. 12-1529 23
may not consider parol evidence in construing the unambigu-
ous terms of the release here. Whether Cannon was fraudu-
lently induced to sign the 1988 Stipulation is a separate
question that we will consider below, but we must first
determine the terms of the unambiguous 1988 Stipulation from
its plain language.
The broad release that Cannon signed in 1988 included all
of the claims “arising either directly or indirectly out of the
incident which was the basis of this litigation[.]” R. 28-2, at 39.
The incident that served as the basis for Cannon’s 1983 pro se
complaint also supplied the basis for Cannon’s current claims.
All of the claims arise from Cannon’s torture by Byrne, Dignan
and Grunhard on November 2, 1983. That torture led to
Cannon’s purportedly false confession, which twice led to his
conviction for Ross’s murder. Cannon also agreed to a “final
and total settlement of all claims he has, or may have in the
future,” arising from the incident underlying the 1983 suit. That
language unambiguously includes claims that Cannon asserts
he did not contemplate until after the settlement, including
claims that he alleges did not accrue until after the settlement.
See Rakowski, 472 N.E.2d at 794-95 (giving effect to a settlement
that released any and all claims “on account of all injuries,
known and unknown, … which have resulted or may in the
future develop from an accident which occurred”); Hurd, 707
N.E.2d at 613 (finding clear and unambiguous a release that
bars claims “whether known or unknown, or suspected to
exist” arising from the plaintiff’s partnership in the defendant’s
firm).
Although Illinois courts construe more narrowly general
releases that are unlimited in scope, the release here is limited
24 No. 12-1529
to future claims that arise from the subject of the first law suit.
See Rakowski, 472 N.E.2d at 794. In Rakowski, the Illinois
Supreme Court held that a party was bound by a release “from
any and all claims … of any kind or nature whatsoever, and
particularly on account of all injuries, known and unknown …
which have resulted or may in the future develop from” a
particular accident. 472 N.E.2d at 794. The court rejected a
party’s position that he did not intend to release a claim for
contribution that did not yet exist at the time of the settlement
and was not specifically enumerated in the release. Instead, the
court declined to consider parol evidence of that party’s intent
and applied the unambiguous language of the release. Any
unilateral mistake about the effect of an unambiguous release
was not a sufficient ground to set aside the release. Rakowski,
472 N.E.2d at 794. Cannon attempts to carve out his claims for
wrongful conviction and malicious prosecution as separate and
distinct incidents not covered by the settlement. But this
ignores both the “arising from” language in the 1988 Stipula-
tion and the reality that these claims did in fact exist at the time
he executed the 1988 Stipulation. That is, he had already been
wrongfully convicted as a result of what he asserts to be a
malicious prosecution. That he could not bring these claims
until his conviction was set aside is irrelevant to the clear
language of the 1988 Stipulation, which releases the defendants
from all claims “arising from” the initial incident. We therefore
agree with the district court that the release covers all of the
claims in Cannon’s current suit against the City Defendants.
B.
Our conclusion that the release covers all of the claims in
Cannon’s current complaint is not the end of the matter. Once
No. 12-1529 25
a defendant establishes the existence of a release that is legal
and binding on its face, the burden shifts to the plaintiff to
prove it invalid by clear and convincing evidence. Hurd, 707
N.E.2d at 613. Cannon asserts that the City Defendants
engaged in fraud and a cover-up of the true facts that caused
him to settle on unfavorable terms. He relies largely on our
opinion in Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir.
1984), overruled on other grounds by Russ v. Watts, 414 F.3d 783
(7th Cir. 2005), for the proposition that a settlement does not
bar additional litigation when it is procured by fraud and a
cover-up so massive that the plaintiff was deprived of mean-
ingful access to the courts. Cannon asserts that the record
contains evidence of fraud that is adequate to create a genuine
issue of material fact regarding whether he should be held to
the terms of the 1988 Stipulation. The City Defendants argue
that Cannon has failed to make out a claim for fraudulent
inducement or fraudulent concealment in the execution of the
1988 Stipulation, and that Bell is distinguishable. We will first
address whether Cannon raises a genuine issue of material fact
regarding fraud in the inducement, and then we will turn to
Bell.
1.
Fraud in the inducement of a contract is a defense that
renders the contract voidable at the election of the injured
party. Jordan, 880 N.E.2d at 1069. The elements of a claim for
fraudulent inducement are well-settled in Illinois:
Broadly speaking, for a misrepresentation to consti-
tute fraud which invalidates a contract, it must be a
representation in the form of a statement of a mate-
26 No. 12-1529
rial fact, made for the purpose of inducing a party to
act; it must be false and known by the party making
it to be false, or not actually believed by him, on
reasonable grounds, to be true; and the party to
whom it is made must be ignorant of its falsity, must
reasonably believe it to be true, must act thereon to
his damage, and in so acting must rely on the truth
of the statement.
Wilkinson v. Appleton, 190 N.E.2d 727, 729-30 (Ill. 1963). See also
Jordan, 880 N.E.2d at 1069. The problem for Cannon is immedi-
ately apparent. When he signed the 1988 Stipulation, he knew
that Byrne, Dignan and Grunhard were lying. He was, after all,
a witness to his own torture and he knew what had really
happened. When he agreed to settle the case, he could not have
reasonably believed their statements to be true, and could not
have reasonably relied on the truth of their statements in
signing the 1988 Stipulation. See Siegel Dev., LLC v. Peak Const.
LLC, 993 N.E.2d 1041, 1060 (Ill. App. 1st Dist. 2013) (as part of
its fraud claim, a plaintiff must show that its reliance on the
misrepresentation was justified; in other words, the reliance
must be reasonable); D.S.A. Fin. Corp. v. County of Cook, 801
N.E.2d 1075, 1081 (Ill. App. 1st Dist. 2003) (a person may not
enter into a transaction with his eyes closed to available
information and then charge that he has been deceived by
another).
In determining whether Cannon reasonably relied on the
defendants’ lies, we must take into account all of the facts
which Cannon knew, as well as those facts that Cannon could
have learned through the exercise of ordinary prudence. Siegel
No. 12-1529 27
Dev., 993 N.E.2d at 1060. Cannon knew the officers were lying
when they denied torturing him but he asserts he did not know
about the broader torture scandal that implicated these same
officers. The record reveals that, at the time he was contemplat-
ing settlement, both Cannon and his lawyer suspected that the
officers had tortured others and Cannon had directed his
lawyer to further investigate both the officers and those other
incidents. But his attorney never asked any of the defendants
in the original suit or any of the extended list of defendants in
the current suit any questions about the officers’ torture of
other suspects. Cannon contends that any failure to pursue
additional discovery should not be held against him because
the officers who lied about torturing him surely would have
lied about torturing others. He is undoubtedly correct that
those officers would have lied again but there were many other
avenues for discovery that his lawyer could have employed
and failed to do so. In support of his claim of a cover-up by
City officials, Cannon cites, among other things, the Goldston
Report8 and the results of re-investigations conducted by OPS,9
8
On September 28, 1990, OPS investigator Michael Goldston completed a
report that identified fifty victims of torture by officers in Area 2, dating
from May 1973 through October 1986. The Goldston Report concluded that
systematic abuse and torture was carried out at Area 2 and that command
officers at Area 2 were aware of the abuse and helped perpetuate it by
either actively participating in the abuse or by failing to stop it. R. 391-5, at
2-26. In November 1990, Gayle Shines, the Chief Administrator of OPS,
approved the Goldston Report and forwarded it to Superintendent of Police
LeRoy Martin. R. 391-5, at 1.
9
In 1993, OPS re-opened investigations into certain cases of torture in
(continued...)
28 No. 12-1529
all of which City officials attempted to conceal in litigation by
other plaintiffs. But all of this evidence came into existence after
Cannon settled his claims. The City’s attempt to conceal this
evidence also came after Cannon settled. Lawyers for other
plaintiffs vigorously pursued these leads and uncovered the
scandal. It is impossible to say whether additional discovery by
Lanphier on Cannon’s behalf would have uncovered the
broader police torture scandal that has now been brought to
light. But Cannon has failed to raise a genuine issue of material
fact regarding the reasonableness of his reliance on the officers’
false statements at the time he signed the 1988 Stipulation,
especially in light of his failure to seek additional information
in the original litigation.
2.
Cannon relies heavily on our decision in Bell to overcome
the deficiencies in his fraud-in-the-inducement claim. The
defendants contend that Bell is distinguishable and so we turn
to the facts of Bell. On February 2, 1958, Milwaukee police
officer Thomas Grady shot and killed Daniel Bell, a young
African-American man the officer had pulled over for a broken
tail-light. Grady and Louis Krause, another officer who had
participated in chasing Bell, immediately fabricated a story to
9
(...continued)
which the OPS had previously concluded that the allegations of abuse were
“not sustained.” In a number of cases, investigators changed the recom-
mended finding to “sustained,” including in Cannon’s case. No action was
taken on those recommendations until 1998, when Thomas Needham,
General Counsel to the Superintendent, instructed OPS to once again
classify all of the allegations as “not sustained.” R. 391-7, at 62.
No. 12-1529 29
justify what they knew was an unwarranted shooting. When
other officers arrived to investigate, Grady told them that he
stopped Bell’s car for a broken tail-light, and that Bell ran once
the car was stopped. Grady said that he believed Bell fit the
description given in a police bulletin of a man wanted for
armed robbery. Together with Krause, he told the investigators
that Bell yelled, “You won’t catch me. I’m a holdup man,” as
he ran. Grady planted a knife in Bell’s hand and told the
investigators that he shot at Bell as Bell fled. Grady later
changed the story, claiming that he fired at Bell after Bell
lunged at him with the knife. Bell’s family heard about the
shooting on the evening news. They went to the police station
and asked for an explanation. An officer repeated the story
given by Grady and Krause and presented the knife as evi-
dence. Bell’s sister, who knew that Bell’s knife was at home,
disputed the claim and pointed out that Bell was left-handed
and the knife was recovered from his right hand. At that point,
the officer responded with racial epithets, and ejected the
family from the station with threats of arrest.
The subsequent internal investigation revealed inconsisten-
cies in the stories given by Grady and Krause. For example, the
officers had given several different accounts of the distance
between Grady and Bell when the shots were fired. And Grady
changed the story to include the detail of Bell lunging with the
knife. Rather than ascertain the truth, superior officers and the
district attorney told Grady and Krause to make their stories
consistent. An extensive cover-up followed. The officers
repeated their lies to journalists, investigators, and at the
coroner’s inquest into the death of Daniel Bell. At the inquest,
Grady amended the estimated distance from which he fired to
30 No. 12-1529
match the findings of the autopsy. The district attorney and the
deputy medical examiner facilitated a biased examination of
the witnesses. With no opportunity for cross-examination,
questions from Bell’s family were ignored. As a result, the
inquest jury returned a verdict that the killing was justifiable,
a finding that all but destroyed any chance of holding the
officers liable for civil damages.
Bell’s family, nevertheless, did not believe the officers’ story
and his father, Dolphus Bell, brought an action in state court
against Grady and the City of Milwaukee for wrongful death
and indemnification, seeking damages in the amount of
$18,125, at that time the statutory maximum. Throughout the
litigation, the defendants continued to claim that Bell had
announced that he was a “hold-up man,” had lunged at Grady
with a knife, and that Grady shot him in self-defense. After a
mistrial, the case was reassigned to a second judge who urged
the parties to settle. After initially agreeing orally to a settle-
ment of $1800, Dolphus Bell refused to sign the agreement and
refused to accept the City’s check.
Nearly twenty years after the shooting, Krause approached
the district attorney and admitted that he and Grady had lied
about the shooting. He told the prosecutor that Bell had not
lunged at Grady and that Grady had planted the knife in Bell’s
hand. The district attorney arranged a wiretap, and in conver-
sations with Krause, Grady admitted on tape that he planted
the knife and that the shooting was accidental. Eventually,
Grady pled guilty to homicide by reckless conduct and perjury.
In 1979, Bell’s siblings (on behalf of themselves and their
now-deceased father) filed suit in federal court against Grady,
No. 12-1529 31
the City of Milwaukee, the police chief, the detective who
investigated the shooting, the county and the office of the
District Attorney. In addition to civil rights claims for excessive
force and deprivation of life without due process, the siblings
also alleged that the defendants conspired to conceal the facts
of the shooting, that the conspiracy interfered with their ability
to bring their claims against Grady and the City of Milwaukee,
that the conspiracy deprived them of due process and equal
protection, and that these deprivations were compensable
under sections 1981, 1983, 1985 and 1986. A jury found that
Grady violated Bell’s constitutional rights by shooting and
killing him and also found that Grady, Krause and other City
defendants conspired to cover up the facts of the shooting and
killing of Daniel Bell. The jury concluded that Bell’s race was
an operative factor in the conspiracy.
On appeal, the Bell defendants raised a number of claims
but only one is relevant to Cannon’s appeal: the defendants’
argument that the Bell family’s claims were precluded by the
earlier settlement agreement and by res judicata. Prior to the
trial, the district court had rejected these defenses. The district
court concluded that Dolphus Bell had entered into a binding
settlement agreement with Grady and the City of Milwaukee
but ruled that res judicata could not be applied when the record
was replete with allegations of fraud, concealment, and a
broad-based cover-up on the part of the defendants. The
district court re-affirmed that ruling after the verdict:
[T]he fraud in this case is sufficient to nullify an
otherwise valid settlement and dismissal. This is not
a case in which the defendant simply lied and
thereby made the plaintiff's proof of his case diffi-
32 No. 12-1529
cult. Rather, this is a case of massive conspiracy by
high ranking Milwaukee officials to prevent the
disclosure of the true facts of the shooting of Daniel
Bell. Given the monopoly on force held by the
government, this conspiracy prevented the proper
functioning of the judicial system.
Bell, 746 F.2d at 1227 (quoting Bell v. City of Milwaukee, 536
F. Supp. 462, 465-66 (D.C. Wis. 1982) (hereafter Bell II)).
On appeal, we agreed that res judicata should not apply.
Bell, 746 F.2d at 1227. Ordinarily, we are obligated to afford full
faith and credit to judicial proceedings in state courts of
competent jurisdiction, and we apply the concepts of res
judicata and collateral estoppel as they would be employed by
the courts of the state in which the prior judgment was
rendered. In Bell’s case, the prior judgment was rendered by a
Wisconsin state court, and under Wisconsin law, “a state court
judgment has no binding effect in subsequent litigation where
the plaintiff proposes to rely on evidence that he or she was
unable or failed to present in the first action on account of the
defendant's fraud or concealment.” Bell 746 F.2d at 1227 (citing
Hammes v. First Nat’l Bank & Trust Co. of Racine, 255 N.W.2d
555, 559-60 (Wis. 1977)). We agreed with the district court that
the earlier settlement did not bar the subsequent action under
the rationale of Hammes. Moreover, we held that the policy in
Hammes applied “notwithstanding defendants' argument that
the Bell family and their attorneys knew from the very begin-
ning that the police must have been lying and covering up the
true circumstances of the shooting.” Bell, 746 F.2d at 1227.
No. 12-1529 33
Although the evidence suggested that Bell’s family knew from
the start that the police had lied,
the Bell family, with their beliefs alone, were de-
prived of a fair opportunity to seek redress by virtue
of defendants' fraudulent concealment of facts
crucial to the fair disposition of the dispute. Not
only did Grady and others cover up what actually
happened the night of the shooting, but, according
to the testimony of Sylvia White Bell, when some
members of the Bell family went to the police that
night for an explanation, they were told “niggers get
out of here,” or be jailed. At the coroner's inquest,
conducted as a non-adversarial proceeding without
opportunity for cross-examination, Bell family
questions were largely ignored.
Bell, 746 F.2d at 1227-28.
We noted that in the original action brought by Dolphus
Bell, the defendants continued to rely on Grady’s false repre-
sentations made at the time of the shooting. We rejected as
irrelevant the defendants’ contention that Dolphus Bell failed
to seek discovery in the original action. We reasoned that, even
if the elder Bell had sought discovery, the defendants had not
established that he would have been able to obtain sufficient
documentary and testimonial evidence to overcome the
inquest finding of justifiable homicide, a finding that was
facilitated with perjured testimony and a biased investigation.
The cover-up implicated high-ranking members of the police
department, as well as the district attorney’s office and even
the medical examiner. Not until Krause came forward twenty
34 No. 12-1529
years later and revealed the truth could the Bell family fairly
present their case:
Thus regardless of whether the settlement was valid
when allegedly entered into, it cannot be used to
preclude future claims and in so doing redound to
the benefit of defendants.
Bell, 746 F.2d at 1228. Finally, we noted that even if the original
settlement were given preclusive effect, Bell’s siblings would
still have a civil rights claim for damages arising from the
defendants’ acts of concealment continuing past the prior
action. Bell, 746 F.2d at 1228.
3.
We have not had many occasions to apply the reasoning of
Bell in the thirty years since its issuance, and that is as it should
be. Extraordinary circumstances called for an extraordinary
resolution. The district court had two opportunities to consider
whether Bell could relieve Cannon of the preclusive effect of
the 1988 Stipulation: first on the defendants’ motion to dismiss,
and later on the defendants’ motion for summary judgment. At
the motion to dismiss stage, the district court first concluded
(as have we) that the broad language of the release covered all
of the claims that Cannon now raises. But the court also found
that Cannon had alleged sufficient facts in support of claims of
fraud and unconscionability to overcome the preclusive effect
of the earlier settlement. The court relied in part on Bell in
reaching that conclusion. At the summary judgment stage, the
court reversed course and found that Cannon’s situation was
distinguishable from Bell’s because Cannon had first-hand
knowledge of his torture and abuse and was thus aware from
No. 12-1529 35
the beginning that he had a cause of action against the officers.
In particular, the district court found determinative that
Cannon knew before he signed the 1988 Stipulation that he had
been tortured, and he suspected that Area 2 officers had
tortured others. Cannon’s criminal defense lawyer was aware
of another complaint against Area 2 officers, and Cannon went
so far as to direct his civil attorney to look into the arrest
records of the officers involved to determine how many of
their interrogations ended in confessions or charges of torture.
The district court found that the officers’ denial of Cannon’s
allegations did not constitute fraud, and that Cannon had
failed to produce any evidence supporting his claim that the
City itself had participated in a cover-up prior to the settle-
ment. Bell, on the other hand, was killed by the officers, and
their concealment of the facts prevented Bell’s relatives from
pursuing his constitutional claims. In other words, the district
court concluded, the officers’ concealment of the facts pre-
vented Bell’s family from realizing they had a cause of action
in the first place.
On appeal, Cannon asserts that his knowledge of his torture
does not meaningfully distinguish his case from that of Bell.
The City Defendants engaged in a decades-long cover-up that
deprived him of a fair opportunity to seek meaningful redress
in the courts, he contends, and a straight-forward application
of Bell bars the defendants from relying on the 1988 Stipula-
tion. The City Defendants continue to assert that Cannon knew
he had been tortured and thus was in full possession of the
relevant facts giving rise to his civil rights claims, unlike the
Bell family, who had “their beliefs alone” to aid them in
uncovering the truth. The City Defendants dismiss as irrele-
36 No. 12-1529
vant Cannon’s claim that he was in no position to prove his
claims of abuse because he was in prison for murder as a result
of the false confession he gave under the officers’ torture.
According to the defendants, Cannon had credibility problems
far beyond his conviction in Ross’s murder, and the officers’
denial of their conduct could not constitute fraud in any case
because Cannon knew the truth and was not relying on the
officers’ assertions when he signed the 1988 Stipulation. Nor
could there have been any fraud by the City itself, the defen-
dants argue, because Cannon did not assert a Monell claim in
his initial lawsuit and never sought discovery or information
from the City. Because Cannon did not ask the City for
information about other instances of torture, he cannot
complain now that the City concealed the information, accord-
ing to the defendants.
We agree with the district court that Bell is distinguishable,
and we look to the two cases in which we have had an oppor-
tunity to apply Bell to demonstrate the differences. We note,
though, that neither of these cases involved a settlement
followed by a second attempt at litigation. Rather, both
addressed free-standing claims of denial of access to the courts.
Nevertheless, these two cases aid our understanding of Bell.
The “cornerstone of our decision in Bell was that the conspiracy
had prevented a full and open disclosure of facts crucial to the
cause of action, rendering hollow the plaintiffs' right of access.”
Vasquez v. Hernandez, 60 F.3d 325, 329 (7th Cir. 1995). In
Vasquez, a woman was injured by a stray bullet fired by an off-
duty, drunken Cicero police officer. On-duty Cicero officers
who investigated the shooting did nothing more than retrieve
the bullets that landed in Vasquez’s home and determine that
No. 12-1529 37
the off-duty officer firing the shots was drunk. They then took
no action on the evidence for several months. An independent
investigation conducted by state, county and federal officials
concluded that a group of off-duty Cicero officers attending a
Super Bowl party had set up a target in an officer’s residential
backyard, and proceeded to fire multiple shots. Some of those
shots ended up in Vasquez’s home, including the bullet that
injured her. The officers were reprimanded and the results of
the investigation were provided to Vasquez.
Vasquez then sued both the off-duty officers who fired the
shots and the original investigating officers from Cicero. She
alleged that the Cicero officers conspired to cover up and
impede the investigation, and she sought damages under
section 1983 for deprivation of the constitutional right to seek
judicial relief for her injuries, relying on Bell. We noted that
“the right of individuals to pursue legal redress for claims
which have a reasonable basis in law and fact is protected by
the First and Fourteenth Amendments.” Vasquez, 60 F.3d at
328. A corollary of this right is that efforts by state actors to
impede an individual's access to courts may provide the basis
for a constitutional claim under section 1983. Citing Bell and
Bounds v. Smith, 430 U.S. 817, 822 (1977), we reasoned that
judicial access must be adequate, effective, and meaningful,
and “therefore, when police officers conceal or obscure
important facts about a crime from its victims rendering
hollow the right to seek redress, constitutional rights are
undoubtedly abridged.” Vasquez, 60 F.3d at 328.
We distinguished Bell, however, because the cover-up failed
and there were no allegations that the plaintiffs were pre-
38 No. 12-1529
vented from pursuing a tort action in state court or that the
value of such an action had been reduced by the cover-up.
Although the Vasquezes were delayed for approximately six
months from learning the facts in support of their claims,
ultimately they suffered no prejudice and in fact were able to
use the information discovered during the multi-jurisdictional
investigation into the circumstances of their injury and the
ensuing cover-up by local police officers. In contrast, Bell’s
family was delayed from seeking justice for nearly twenty
years and suffered prejudice that was “extraordinary and
extreme.” Vasquez, 60 F.3d at 329.
Similarly, in Thompson v. Boggs, 33 F.3d 847 (7th Cir. 1994),
we found Bell distinguishable from the case of a man who was
injured by police officers during his arrest. Boggs was a police
officer who attempted to pull Thompson over for driving his
motorcycle with a suspended license. Thompson led Boggs on
a high-speed chase that ended when Thompson collided with
another squad car and was thrown to the pavement. Boggs
then restrained Thompson on the ground by placing his leg
across Thompson’s back in order to handcuff him. Thompson
later learned he had suffered a compression fracture of a
vertebrae in his lower back. He sued Boggs, claiming, among
other things, that the officer denied him his First Amendment
right of access to the courts when he failed to reveal in his
police report that he had used excessive force in arresting
Thompson. 33 F.3d at 849-50. In particular, he complained that
Boggs excluded from the report that Boggs lifted him up from
the pavement, threw him back on the pavement onto his
stomach, and then jumped on his back with a large amount of
force. Thompson, 33 F.3d at 852.
No. 12-1529 39
We concluded that Thompson’s case was distinguishable
from Bell’s in several important respects. Most significantly,
Thompson was not deprived of meaningful access to the courts
“because he was personally involved in the incident and thus
had firsthand knowledge of all the facts and circumstances
surrounding his arrest.” 33 F.3d at 852. Thompson knew that
an officer landed a blow to his back during the arrest, and was
able to secure two independent witnesses to the events.
“Finally, the facts known to Thompson concerning the arrest
were sufficient to enable him to promptly file the instant
lawsuit unlike Bell, where the true facts were concealed
thereby denying [Bell’s family] the opportunity to file a lawsuit
until some twenty years after the fact.” 33 F.3d at 852-53.
We note again that neither Vasquez nor Thompson addressed
a settlement followed by a subsequent lawsuit involving the
same facts. Both involved straight-forward claims of denial of
meaningful access to the courts. In each case, we ultimately
distinguished Bell because the plaintiffs were in fact able to file
their claims in a timely manner, and knew the relevant facts of
their claims at the time the claims arose (as was the case in
Thompson) or soon thereafter (as occurred in Vasquez). Simi-
larly, Cannon knew the facts that gave rise to his claims at the
time the claims arose. Like Thompson, he knew first-hand that
he had been abused by the officers, that he had falsely con-
fessed and that his false confession had contributed to his
conviction. Like Thompson, he knew that the officers were
lying or omitting relevant facts from their later accounts of
their actions. Like Thompson, the facts known to Cannon were
sufficient to enable him to promptly file his lawsuit. Cannon’s
case, in other words, presented a typical he-said/they-said
40 No. 12-1529
controversy; in Bell’s case, only the officers’ side of the story
existed.
Moreover, in Bell’s case, there was an immediate, top-down
cover-up of the facts, with higher ranking officers and the
district attorney directing the wrong-doers to synchronize their
stories. When seeking information about the shooting, Bell’s
family was sent away from the police station with race-based
threats to leave or face arrest. The inquest was conducted in a
biased fashion and as a non-adversarial proceeding in which
the questions of the Bell family were ignored. The inquest’s
conclusion that the shooting was justified presented a signifi-
cant road-block to the Bell family’s civil suit. In contrast, at the
time that Cannon settled his case and signed the 1988 Stipula-
tion, so far as the record reveals, there was not yet a cover-up
of Cannon’s case by higher ranking officials. Cannon has no
evidence that the defendants actively discouraged him from
seeking discovery or learning the truth, as happened to Bell’s
family when they approached the police for an explanation of
Daniel’s death. Indeed, Cannon suspected that others had been
tortured and he was aware of public reports of some incidents
prior to the settlement. Almost certainly, the officers directly
involved in Cannon’s torture lied in their depositions and to
OPS investigators. But Cannon has presented no evidence that
the City knew the officers were lying during the first OPS
investigation or that the City thwarted Cannon’s efforts to
obtain discovery or learn the facts of his torture. In fact,
Cannon’s lawyer did not seek discovery from the City regard-
ing other instances of torture prior to advising Cannon to settle
the case, and so the City had no opportunity to influence
Cannon’s decision by failing to disclose this information. As for
No. 12-1529 41
the officers’ conduct in lying during their depositions, as we
explained above, Cannon knew the officers were lying and
knew all of the relevant facts giving rise to his claims; he faced
a typical credibility contest. Bell’s family suspected but did not
know what happened to Daniel Bell because Daniel was not
there to supply a contrary version of events.
Others who were abused by Area 2 officers pursued their
claims with more vigor than Cannon and eventually uncov-
ered the broader police torture scandal involving Jon Burge,
the officers who worked under him, and the police officials
who looked the other way and sometimes actively concealed
what they knew about the torture. But at the time Cannon
signed the 1988 Stipulation releasing the City and all of its
employees from all present and future claims arising from his
torture, Cannon was not relying on any false information
provided by the City Defendants on the broader torture
scandal because he had not sought discovery from the City or
the individual defendants on any other incidents involving any
other arrestees. Although he now has evidence suggesting that
the City behaved deplorably in other litigation after Cannon
settled his case, that after-the-fact behavior cannot be said to
have induced Cannon to settle his case.
Cannon essentially claims that he would not have settled
his case if he had realized that better proof would be available
in the future. If he had known that the officers were abusing
others, he could have used that information to bolster his own
credibility, which had been seriously damaged by his false
confession and conviction for the murder of Darrin Ross. We
pause for a moment to address the disingenuousness of this
argument. First, Lanphier, Cannon’s lawyer in the civil case,
42 No. 12-1529
advised him to settle in 1988 not because of credibility prob-
lems created by his conviction for Ross’s murder but because
of credibility issues created by Cannon’s first murder convic-
tion, the one for which he was on parole when he became
embroiled in Ross’s murder. Lanphier believed that he could
have evidence of the second murder conviction excluded at the
civil trial. R. 391-7, at 2. Lanphier advised Cannon to settle
because the case boiled down to a question of witness credibil-
ity and Cannon’s first murder conviction made it highly
unlikely that a jury would accept Cannon’s version of the facts
over that of the defendants. Cannon’s complaint that he
litigated under the burdensome weight of his false conviction
for Ross’s murder rings hollow in light of his lawyer’s actual
advice at the time of the settlement. Second, Cannon in fact
believed that the officers had abused other suspects and had
asked his lawyer to pursue discovery about other abuse at
Area 2. He settled his case knowing that this evidence—this
better proof—might exist, and knowing that his lawyer had
failed to pursue it. R. 363-17, at 2 (letter from Cannon to
Lanphier accepting the settlement). Cannon took his lawyer to
task for not believing that Cannon had been tortured, and for
being unwilling “to fight like hell to prove that they did do it.”
R. 363-17, at 2. The larger problem with Cannon’s regret over
settling the case is that, unlike the family of Daniel Bell,
Cannon knew all of the relevant facts at the time he settled; to
the extent he did not know the facts regarding the officers’
torture of others, he was well aware that his lawyer opted not
to pursue discovery of those facts. Actions taken to conceal the
police torture scandal after the settlement, abhorrent though
they were, could not and did not induce Cannon to settle.
No. 12-1529 43
Finally, we note that Bell is distinguishable in a few addi-
tional respects. We commented in Bell that, even if the settle-
ment reached in the first case brought by Dolphus Bell were
given preclusive effect, much of the second suit would not be
barred. 746 F.2d at 1228. The settlement reached by Dolphus
Bell did not specifically prohibit future litigation for acts of
concealment that continued past the prior action. Cannon’s
settlement with the City did bar future lawsuits arising from
the same incident that was the subject of the first lawsuit.
Moreover, Bell’s siblings were not parties to the first lawsuit
and the defendants failed to establish that collateral estoppel
would preclude their claims. Cannon, in contrast, was the
plaintiff in both suits. In the end, Bell simply does not apply,
and there is no way to relieve Cannon from the preclusive
effect of the 1988 Stipulation and settlement.
4.
The City Defendants have consistently argued that this
litigation is precluded by the 1988 Stipulation, a settlement
agreement that they have asked us to analyze using principles
of Illinois contract law. By now, the reader may be wondering
why we have been mired in Illinois contract law when the
straight-forward principles of res judicata would seem to apply.
“Under res judicata, a final judgment on the merits bars further
claims by parties or their privies based on the same cause of
action.” Montana v. United States, 440 U.S. 147, 153 (1979). Here,
the district court dismissed with prejudice the first suit against
the three officers and entered judgment against the City of
Chicago, incorporating by reference the 1988 Stipulation. That
constitutes a final judgment on the merits. See Lawlor v. National
44 No. 12-1529
Screen Serv. Corp., 349 U.S. 322, 327 (1955); Golden v. Barenborg,
53 F.3d 866, 871 (7th Cir. 1995). A party asserting res judicata or
claim preclusion must establish: “(1) identity of the claim,
(2) identity of parties, which includes those in ‘privity’ with the
original parties, and (3) a final judgment on the merits.” Ross
ex rel. Ross v. Board of Educ. of Twp. High Sch. Dist. 211, 486 F.3d
279, 283 (7th Cir. 2007). Because the earlier judgment was
rendered by a federal court, the federal law of claim preclusion
applies here. Ross, 486 F.3d at 283. “In order to decide whether
the two cases involve the same claim, we ask whether they
arise out of the same transaction. If they did, whether or not
they were actually raised in the earlier lawsuit, they may not
be asserted in the second or subsequent proceeding.” Ross, 486
F.3d at 283.
The elements required for claim preclusion would appear
to be present here. After all, Cannon filed his 1986 suit in
federal court, asserting claims arising from his torture by three
police officers. The settlement (which included the City and all
of its employees) that ensued was enshrined in a final judg-
ment by the district court, a judgment that incorporated the
1988 Stipulation by reference. Arguably, the claims in both
suits arose from the same operative facts, the parties were
identical, and there was a final judgment on the merits. Bell
itself provided an exception to the normal operation of res
judicata. Yet the City has not argued the preclusive effect of res
judicata, instead confining its argument to Illinois contract
principles and the 1988 Stipulation. Because res judicata is a
defense that can be forfeited if not pled, we see no reason to
further address the issue. Arrow Gear Co. v. Downers Grove
Sanitary Dist., 629 F.3d 633, 638 (7th Cir. 2010). We mention it
No. 12-1529 45
only because it seems odd to ignore an issue that is otherwise
so obviously implicated by the procedural stance of the case.
The City Defendants have confined their defense of the case to
principles of Illinois contract law and we have therefore limited
our analysis to that defense.
III.
Cannon next contends that it would be unconscionable to
hold him to the terms of the 1988 Stipulation because it is the
product of unequal bargaining positions secured by the
defendants’ fraud. Cannon asserts that he “negotiated under
the impossible burden of a conviction for murder,” namely his
conviction for the murder of Darrin Ross. The defendants, on
the other hand, bargained for the settlement from the false
position of blameless public servants. According to Cannon,
without this handicap, he would have obtained a settlement
comparable to those obtained by other plaintiffs who suffered
at the hands of Burge and his officers.
The determination of whether a contract or a portion of a
contract is unconscionable is a question of law, which we
review de novo. Kinkel v. Cingular Wireless LLC, 857 N.E.2d 250,
264 (Ill. 2006). Cannon claims both procedural and substantive
unconscionability in the 1988 Stipulation. Procedural
unconscionability consists of some impropriety during the
process of forming the contract depriving a party of meaning-
ful choice. Phoenix Ins. Co. v. Rosen, 949 N.E.2d 639, 647 (Ill.
2011); Kinkel, 857 N.E.2d at 264. Substantive unconscionability
concerns the actual terms of the contract and examines the
relative fairness of the obligations assumed, asking whether the
terms are so one-sided as to oppress or unfairly surprise an
46 No. 12-1529
innocent party. Phoenix 949 N.E.2d at 647; Kinkel, 857 N.E.2d at
267.
The facts underlying Cannon’s claims of procedural
unconscionability are identical to those supporting his claims
of fraud in the inducement. That is, he relies on the fact that the
officers lied repeatedly, to the OPS, to the trial court, and in
their depositions, and in doing so secured his wrongful
conviction for murder. That conviction, he argues, placed him
in a severely disadvantaged bargaining position. The settle-
ment, he contends, was secured by “years of perjury, obstruc-
tion, suppression of evidence, and deceit.” At the same time, it
is substantively unconscionable, Cannon asserts, because the
terms are oppressively one-sided.
We cannot say that Cannon was deprived by the City
Defendants of a meaningful choice at the time he settled the
case. The factors that we consider in assessing procedural
unconscionability “include the manner in which the contract
was entered into, whether each party had a reasonable oppor-
tunity to understand the terms of the contract, and whether
important terms were hidden in a maze of fine print.” Frank's
Maint. & Eng’g, Inc. v. C. A. Roberts Co., 408 N.E.2d 403, 410 (Ill.
App. 1st Dist. 1980). See also Phoenix, 949 N.E.2d at 647; Kinkel,
857 N.E.2d at 264. First, to the extent that Cannon was operat-
ing under the burden of a conviction for murder, he brought
that burden on himself with his 1971 conviction in the Lazar
murder. Lanphier advised Cannon that he would seek to
exclude from the civil trial Cannon’s conviction for Ross’s
murder but Lanphier also advised Cannon that the earlier
conviction would be admissible. The first murder conviction
would seriously damage Cannon’s credibility, as would
No. 12-1529 47
Cannon’s then-membership in the El Rukn street gang.
Whether Lanphier was correct about the admissibility (or
inadmissibility) of Cannon’s murder convictions is irrelevant;
at the time Cannon decided to settle, he had only the advice of
his lawyer to guide his decision, and that advice excluded the
burden of the second conviction. Moreover, Illinois courts have
been reluctant to hold that inequality in bargaining power
alone suffices to invalidate an otherwise enforceable agree-
ment. Melena v. Anheuser-Busch, Inc., 847 N.E.2d 99, 110 (Ill.
2006).
Cannon was, of course, represented by counsel when he
entered into the 1988 Stipulation, another factor that weighs
against a finding of procedural unconscionability. Fagala v.
Sanders, 488 N.E.2d 1093, 1096 (Ill. App. 5th Dist. 1986). Can-
non’s letter to his lawyer accepting the settlement reveals that
Cannon was deeply dissatisfied with his lawyer but also that
he understood what was at stake in settling his case. R. 363-17,
at 2. At his deposition, Cannon confirmed that he knew the
settlement would end his lawsuit, that no one forced him or
threatened him to settle, and that he knew he could take the
case to trial. R. 363-11, at 550:5-8; 552:9-553:5.
Moreover, the “years of perjury, obstruction, suppression
of evidence, and deceit” occurred largely after Cannon settled
his case. True, the officers most directly involved in the torture
lied for many years prior to the 1988 settlement, throughout
Cannon’s criminal and civil proceedings. That would have led
to a typical credibility contest in court, and that is not a reason
for vacating a settlement agreement. As for the actions of City
employees other than the abusive officers, Cannon’s lawyer
did not question the City Defendants about the torture of
48 No. 12-1529
persons other than Cannon himself. Having never asked for
the information about the torture of others, Cannon may not
now claim that the settlement process was marred by a lack of
information about the torture of others. What the officers did
to Cannon was unconscionable; the formation of the settlement
agreement was not.
As for substantive unconscionability, the whole of Cannon’s
argument appears to be that plaintiffs who settled with the
City after the Burge scandal came to light received far more
generous settlements (in some cases, millions of dollars), and
it would be unconscionable to hold Cannon to the original
$3000 settlement. The City Defendants point out that Cannon’s
original complaint sought $45,000, and that $3000 is not
unconscionable in light of Cannon’s “own valuation of his
claim at the time of the prior settlement, his self-induced
credibility problems, his admitted complicity in Ross’s murder,
and the public policy of finality.”
Illinois law does not support Cannon’s claim for substan-
tive unconscionability. Although the unconscionability
determination is not restricted to the facts and circumstances
in existence at the time the contract was entered into, Cannon
was fully aware of the extent of his injury at the time he settled.
See Razor v. Hyundai Motor America, 854 N.E.2d 607, 621 (Ill.
2006) (courts may consider matters which become known only
subsequent to the drafting of the contract—i.e., the type of
injuries suffered as a result of breach—in assessing the
unconscionability calculus). He did not know that the officers
had assaulted others, information that certainly would have
bolstered his credibility and probably his recovery, but his
lawyer did not seek that information. In Fagala, the court
No. 12-1529 49
rejected a claim that a plaintiff could avoid a prior settlement
by asserting that others in similar circumstances were paid
more. Fagala, 488 N.E.2d at 1095-96. The court noted that the
disparity between the settlements may have been warranted by
the difference in the claims against those parties. Fagala, 488
N.E.2d at 1096. Other than asserting that the other plaintiffs
were also tortured by some of the same officers and received
larger settlements, Cannon makes no attempt to demonstrate
similarities between the settlement circumstances of other
plaintiffs and himself. Without knowing what specific factors
led to those settlements, we cannot say that it was unconscio-
nable for Cannon to receive significantly less. “Public policy in
Illinois favors settlements and dictates that, absent fraud or
duress, settlements should be final.” Pritchett v. Asbestos Claims
Mgmt. Corp., 773 N.E.2d 1277, 1285 (Ill. App. 5th Dist 2002). See
also Carlile, 648 N.E.2d at 321 (“Public policy favors the
settlement of claims, and it is important that claims, once fairly
resolved, not be resurrected”). Again, the fraud exception in
these public policy statements refers to fraud in the induce-
ment of the settlement, and Cannon cannot demonstrate that
he reasonably relied on misstatements by the City Defendants
in executing the 1988 Stipulation. When he settled his claims,
he knew for a fact that the officers were lying. He even knew
that his lawyer was not pursuing his claims to his satisfaction
and that there might have been better evidence to support his
claim. He settled anyway. His settlement was not unconsciona-
ble and is therefore final.
50 No. 12-1529
IV.
This case casts a pall of shame over the City of Chicago: on
the police officers who abused the position of power entrusted
to them, on the initial trial judge who was later imprisoned for
accepting bribes to fix murder cases, on City officials who
turned a blind eye to (and in some instances actively con-
cealed) the claims of scores of African-American men that they
were being bizarrely and horrifically abused at Area 2, and last
but not least on Cannon himself, who was a convicted mur-
derer out on parole when, by his own admission, he drove a
car for his fellow El Rukn general as a murder was committed
in the back seat, and then helped dispose of the body and
conceal the crime. It is difficult to conceive of a just outcome
given the appalling actions by almost everyone associated with
these events but the law regarding the finality of settlements
governs the result: Cannon brought his suit against those who
abused him and settled it knowing full well that those defen-
dants were lying. He has no evidence that, at the time he
decided to settle, the City knew about and purposefully
concealed a broader scandal in order to induce him to settle.
He signed a broad release precluding him from bringing
further claims arising from the same set of facts against any of
the City Defendants. Final judgments are final for a reason.
Cannon failed to raise a genuine issue of material fact on any
theory that would relieve him of the preclusive effect of the
first judgment. The judgment of the district court is therefore
AFFIRMED.