Arthur Brown v. City of Chicago ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-4265
A RTHUR B ROWN,
Plaintiff-Appellant,
v.
C ITY OF C HICAGO, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 C 8134—John W. Darrah, Judge.
A RGUED O CTOBER 8, 2009—D ECIDED M ARCH 30, 2010
Before E ASTERBROOK, Chief Judge, and M ANION and
T INDER, Circuit Judges.
M ANION, Circuit Judge. Arthur Brown sued Officer
Duane Blackman under 42 U.S.C. § 1983 for excessive
force, alleging Officer Blackman shot him without justifi-
cation. The district court granted Officer Blackman sum-
mary judgment, concluding that because Brown had
been convicted of aggravated assault, aggravated
unlawful use of a weapon, and unlawful possession of
2 No. 08-4265
a weapon by a felon based on his encounter with Officer
Blackman, Brown’s current suit was barred by collateral
estoppel. Brown appeals. We affirm.
I.
On April 24, 2001, Officer Duane Blackman was patrol-
ling the Cabrini-Green housing project in Chicago, Illinois,
with his partner, Officer Aaron Long. Both officers
were wearing plain clothes. During the patrol Officer
Blackman spotted a man, later identified as Lazerek
Grant, engaged in a suspected drug transaction with the
passenger of an automobile. Another man, later identified
as Jeremiah Brooks, stood near Grant during the transac-
tion. After observing the drug deal, the officers parked
their car and got out to investigate. While approaching
Grant and Brooks, the officers witnessed a second similar
transaction. When Grant and Brooks saw the officers
approaching with their weapons drawn, they took off
running. Officer Blackman chased Brooks and Officer
Long went after Grant. The chase led Officer Blackman
into a nearby parking lot, where he saw the plaintiff in
this case, Arthur Brown. Brown was not involved in the
original drug deal, but according to Officer Blackman,
Brown was holding a black gun and refused to drop it
even though Officer Blackman displayed his police
badge and ordered him to do so. Officer Blackman main-
tains that Brown instead began walking backwards
while pointing the gun at him. Officer Blackman claims
he continued to shout for Brown to drop the weapon but
when Brown failed to comply, Officer Blackman shot
him, striking him several times. After Brown fell to the
No. 08-4265 3
ground, Officer Blackman claims he pried Brown’s
fingers off the gun and took possession of the weapon.
Brooks and Officer Long would later confirm that they
saw Brown point a weapon toward Officer Blackman.
Brown had a different version of the events: Brown
claimed that he did not have a gun, that Officer Blackman
shot him in the back, and that after shooting him, Officer
Blackman placed a “drop” gun in his hand. In support
of his version, Brown pointed to a nurse’s statement that
he had stitches in the back of his head (although the
nurse admits not knowing where the bullet entry wound
was). Brown also pointed to a statement from Danyiel
Larkins who claimed he observed the incident. Larkins
maintained that Brown did not have a gun; that Officer
Blackman shot Brown in the back after Brown ran away
from the officer; and that after shooting Brown, Officer
Blackman placed a gun in Brown’s hand. Larkins
claimed he did not know Brown before witnessing this
incident and that when he attempted to tell police what
he saw the night of the incident, he was told to keep his
mouth shut unless he wanted to be arrested too. Brown
also noted that the gun which was supposedly recovered
from his possession originally belonged to another
police officer, Officer Rickey Fobbs, and that while
Officer Fobbs reported it stolen a few years before the
shooting, Brown posited that the weapon was not really
stolen, but instead became the drop weapon used by
Officer Blackman.
A state court jury rejected Brown’s version of events by
convicting him of multiple counts of aggravated assault,
aggravated unlawful use of a weapon, and unlawful
4 No. 08-4265
possession of a weapon by a felon based on his encounter
with Officer Blackman. Brown appealed his state court
conviction. The state appellate court affirmed and the
Illinois Supreme Court denied Brown’s petition for
review. Brown then filed a habeas corpus petition in
federal court, but the district court dismissed that suit
because Brown was no longer in custody. Brown then
filed this § 1983 suit against Officer Blackman and others.
Brown’s complaint alleged multiple theories against
multiple defendants, but the only remaining claim at
issue is Brown’s excessive force claim against Officer
Blackman. In his § 1983 suit, Brown reiterated his
version of events, claiming that Officer Blackman shot
him without justification and thus used excessive force
in violation of his constitutional rights. The district court
granted Officer Blackman summary judgment, con-
cluding that Brown’s excessive force claim was barred
by collateral estoppel. Brown appeals.
II.
On appeal, Brown argues that the district court erred in
holding that his § 1983 claim was barred by collateral
estoppel. Whether a plaintiff’s § 1983 claim is barred by
a state court conviction is determined by the state’s rules
of collateral estoppel. See 28 U.S.C. § 1738; Sornberger v.
City of Knoxville, 434 F.3d 1006, 1020 n. 9 (7th Cir. 2006).
Under Illinois’s issue preclusion law, an issue litigated
in a prior proceeding may not be relitigated if (1) the
issue decided in the prior adjudication is identical
with the one presented in the suit in question; (2) there
was a final judgment on the merits in the prior ad-
No. 08-4265 5
judication; and (3) the party against whom estoppel is
asserted was a party or in privity with a party to the
prior adjudication.
Dunlap v. Nestle USA, Inc., 431 F.3d 1015, 1018 (7th Cir.
2005) (citing Herzog v. Lexington Township, 657 N.E.2d
926, 929-30 (Ill. 1995)). Moreover, under Illinois law, a
criminal conviction precludes relitigation of issues that
were necessarily decided in the criminal proceedings.
Am. Family Mut. Ins. Co. v. Savickas, 739 N.E.2d 445, 449-51
(Ill. 2000). As the Illinois Supreme Court explained in
Savickas, in a criminal case:
[T]he State must prove the defendant guilty beyond a
reasonable doubt by a unanimous verdict, a greater
burden than that faced by any civil litigant. The defen-
dant may remain silent and the State is prohibited
from commenting on his silence. Moreover, the defen-
dant has the right to counsel and to a record paid for
by the State on appeal.
Id. at 450. These differences, the Illinois Supreme Court
found, militate in favor of giving the same preclusive
effect to a criminal conviction as an ordinary civil judg-
ment. Id.Brown admits that all of the elements of collateral
estoppel exist in this case, see Appellant Brief at 22, and
for good reason: Brown’s conviction in state court for
multiple counts of aggravated assault, aggravated unlaw-
ful use of a weapon, and unlawful possession of a
weapon by a felon based on his encounter with Officer
Blackman necessarily determined that Brown possessed
a weapon and pointed it at Officer Blackman. None-
6 No. 08-4265
theless, Brown argues that collateral estoppel does not
bar his excessive force claim for two reasons: first,
because he was denied a full and fair hearing; and second,
because new evidence calls into question his state court
conviction, thus making application of collateral estoppel
unfair.
Under Illinois law, collateral estoppel does not bar
relitigation of an issue if the party against whom the
doctrine is asserted was denied a full and fair oppor-
tunity to litigate the question in the previous case. Rekhi
v. Wildwood Ind., Inc., 61 F.3d 1313, 1319 (7th Cir. 1995)
(explaining that under Illinois law a judicial finding will
be given collateral estoppel effect only if reached after a
full and fair hearing). Brown claims he was denied a
full and fair hearing for three reasons. First, Brown claims
he was denied a full and fair hearing because the state
trial court limited his questioning of Officer Fobbs about
the circumstances of the alleged theft of his gun (which
was the gun Officer Blackman claimed he recovered
from Brown). Brown’s theory was that Officer Fobbs’s
gun was not really stolen, but rather that Officer Fobbs
had to dispose of the weapon because he had used it in
an off-duty shooting that occurred when Officer Fobbs
was involved in a high-speed chase with a friend who
was a convicted felon and gang member. Brown wanted
to use this evidence to support his theory that Officer
Fobbs supplied the weapon Officer Blackman would
later use as a drop weapon. The state trial court refused
to allow Brown to present this evidence because Brown
did not have any evidence indicating that Officer Fobbs
and Officer Blackman knew each other prior to the time
of the shooting. The state court’s refusal to allow this
No. 08-4265 7
evidence did not deny Brown a full and fair hearing.
Rather, a state court could reasonably conclude that this
evidence should be excluded because any probative
value was slight, given there was no evidence that
before the shooting they knew each other.1 In addition,
the danger of unfair prejudice was great since it would
cast aspersions on the character of one of the govern-
ment witnesses by alleging he was friends with a gang
member and felon. See United States v. Alviar, 573 F.3d
526, 536 (7th Cir. 2009) (stating that “[w]e have recog-
nized there is substantial risk of unfair prejudice
attached to gang affiliation evidence . . . .”). There are
circumstances under which it is proper to provide
evidence of gang affiliations. Id. However, in this case,
1
Brown claims on appeal that there was circumstantial evi-
dence that Officers Fobbs and Blackman knew each other.
Specifically, Brown points to evidence that Officer Fobbs was
assigned to the 18th District Police Station, which was located
only blocks from Cabrini-Green where Officer Blackman
patrolled, and that officers from the two squads often inter-
acted. Brown also points to the fact that Officer Fobbs was
later transferred to Officer Blackman’s unit and they then
became friends. This evidence, however, in no way shows
that the two knew each other at the time of the incident, much
less three years earlier when the gun was stolen. Brown also
points to Officer Blackman’s testimony at trial that he met
Officer Fobbs in “2000 maybe.” The “maybe” is significant,
as Officer Blackman immediately clarified that it was not
until 2001 after the incident that he met Officer Fobbs. Thus,
this testimony was also insufficient to show that Officer
Blackman and Officer Fobbs knew each other at the time of
the incident.
8 No. 08-4265
since there was no evidence that Officer Blackman and
Officer Fobbs knew each other at or before the time of
the April 24, 2001, shooting (much less that they knew
each other three years earlier at the time of Officer Fobbs’s
alleged connection with the gang member), the exclu-
sion of that testimony in Brown’s criminal trial did not
deny Brown a full and fair hearing.
Second, Brown argues that he was denied a full and fair
hearing because he was not allowed to question Officer
Blackman and his partner, Officer Long, about their
“conspiracy” while on duty to switch price tags on mer-
chandise at Sak’s Fifth Avenue. The state trial court,
however, allowed Brown to present evidence that a
complaint was lodged against Officers Blackman and
Long for a December 24, 2002, incident, that the Internal
Affairs commission had reviewed and sustained those
complaints, and that as a result of the incident both
officers had been stripped of their police powers and had
been reassigned to a non-emergency call center in an
administrative capacity. Additionally, the state trial court
allowed Brown to inquire regarding the total number of
complaints logged against both Officer Blackman and
Officer Long. This evidence was more than sufficient to
inform the jury that Officers Blackman and Long had
engaged in professional misconduct together; omitting
the details of the price-tag scheme did not deprive
Brown of a full and fair hearing.2
2
On appeal, Brown argues that the limits on his questioning
of the officers violated his Sixth Amendment right to con-
(continued...)
No. 08-4265 9
Third, and finally, Brown claims that he was denied a
full and fair hearing because the prosecutor said that
“they” (meaning Brown and his attorney) had “concocted”
a conspiracy so that “they” could “cash in” against the
City of Chicago in a civil action against the “officers” and
that “they” were “trying to ruin the lives and careers of
Chicago policemen who risk their lives every day.” On
appeal from his criminal conviction, the state appellate
court held that these remarks were improper but did not
require reversal. Similarly, here, while the remarks
were improper because they attacked Brown’s attorney,
the error was not so great as to deny Brown a full and
fair hearing.
In addition to claiming that he was denied a full
and fair hearing, Brown also argues that it would be
2
(...continued)
frontation which violated his due process rights, thereby
denying him a full and fair hearing as required under Illinois
law for the doctrine of collateral estoppel to apply. We
need not decide whether the constitutional mandates gov-
erning criminal trials must be met in order for the doctrine
of collateral estoppel to bar a subsequent civil case because
there was no Confrontation Clause problem in the first in-
stance. “The right to cross-examine is not unlimited; the Con-
frontation Clause guarantees only effective cross-examination,
not cross-examination of any type sought by the defendant.”
United States v. Williamson, 202 F.3d 974, 977 (7th Cir. 2000)
(citing Delaware v. Fensterer, 474 U.S. 15, 20 (1985)). Brown
had ample opportunity to effectively cross-examine the
officers in his criminal trial, and thus his Confrontation
Clause rights were not violated.
10 No. 08-4265
inequitable to apply the doctrine of collateral estoppel
because new evidence calls into question his prior
criminal conviction. Under Illinois law, the doctrine of
collateral estoppel does not apply if it results in an injus-
tice. Jones v. City of Alton, Ill., 757 F.2d 878, 885 (7th Cir.
1985) (citing Fred Olson Motor Serv. v. Container Corp. of
America, 401 N.E.2d 1098 (Ill. App. Ct. 1980)).
In arguing that it would be inequitable to apply
collateral estoppel, Brown first claims that since his
criminal trial he has obtained evidence that Brooks was
actually engaged in drug transactions with Grant at the
time of the incident and was not merely an innocent
bystander. Specifically, Brown points to Brooks’s deposi-
tion testimony provided in this case, wherein Brooks
stated that he had handed money to Grant or drugs to
customers. In his deposition, though, Brooks also main-
tained that he was merely “hanging out with my god
brother” who was dealing drugs and that he (Brooks)
wasn’t “transacting drug deals.” In Brown’s state criminal
trial, Brooks testified that he “wasn’t doing anything . . .
except talking to Lazerek Grant.” Brown claims this
deposition testimony now calls into question Brooks’s
previous testimony and also posits that the prosecutor
concealed the actual facts of Brooks’s involvement in the
drug transaction. Brown argues that it would be unfair
to bar his current civil case in light of this discrepancy.
Brooks’s deposition testimony sheds more light on his
conduct on the night of the shooting. But in the state
criminal trial, Brown’s attorney argued to the jury that
Brooks was involved in the drug deal and was not
charged, stating in closing argument: “Jeremiah Brooks
No. 08-4265 11
is the most important witness in this case[.] A guy who
gets caught dealing drugs and is told you sign this state-
ment you’ll get out of jail. That’s their most important
witness?” In fact, when the government objected to this
statement, arguing it was “not based on the evidence,” the
trial judge responded “[t]he jury has heard the evidence.
They will decide what inferences to be drawn.” The
jury nonetheless convicted Brown. Given the cross-exami-
nation and closing argument, coupled with the fact that
Brooks continues to maintain that he “wasn’t transacting
drug deals,” we do not see the discrepancy in the testi-
mony being so great as to create an injustice.
Brown further claims he obtained new evidence
during the deposition of Officer Fobbs which shows that
Officers Fobbs and Blackman knew each other. The evi-
dence Brown points to, however, is merely testimony
by Officer Fobbs that even though he was not assigned
to Cabrini-Green, he responded to calls there on a daily
basis and officers from his police station often inter-
acted with officers assigned to Cabrini-Green. This
“new” evidence, however, does not establish an acquain-
tanceship between the two officers and therefore does not
serve as a basis to ignore the preclusive effect of the
state court conviction.
III.
Brown and Officer Blackman maintain two dia-
metrically opposed stories of the April 2001 shooting. A
state court criminal jury, however, believed Officer
Blackman’s version following a full and fair trial and
12 No. 08-4265
convicted Brown. This conviction conclusively estab-
lished that Brown pointed a weapon at Officer
Blackman. Accordingly, under Illinois collateral estoppel
law, Brown’s § 1983 claim against Officer Blackman
for excessive force is barred. The judgment of the
district court is therefore A FFIRMED.
3-30-10