Price v. City of Chicago ( 2018 )

FIRST DIVISION
February 20, 2018
No. 1-16-1599
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
PRISCILLA PRICE, Independent Administrator) Appeal from the Circuit Court
of the Estate of Niko Husband, Deceased, ) of Cook County.
)
Plaintiff-Appellant, )
)
v. ) No. 11 L 10162
)
THE CITY OF CHICAGO, a Municipal )
Corporation, and MARCO PROANO, )
) Honorable Elizabeth M. Budzinski
Defendants-Appellees. ) Judge Presiding
______________________________________________________________________________
JUSTICE SIMON delivered the judgment of the court, with opinion.
Justices Harris and Mikva concurred in the judgment and opinion.
OPINION
¶1 Niko Husband was shot and killed by Chicago police officer Marco Proano. This case
was filed by the administrator of Husband’s estate seeking damages for wrongful death. Officer
Proano and the City of Chicago countered that the shooting was justified under Illinois law. The
jury returned a general verdict against the defendants, and in favor of plaintiff, for $3.5 million.
The jury also answered two special interrogatories.
¶2 The first special interrogatory asked whether Officer Proano “reasonably believe[d] that
Niko Husband’s actions placed him or his fellow officers in imminent threat of death or serious
bodily harm” when he shot Husband. The jury answered “Yes.” The second special interrogatory
asked whether Officer Proano’s “conduct in shooting Niko Husband [was] willful and wanton.”
No. 1-17-1332
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¶3 he jury answered “Yes.” Finding that the answer to the first special interrogatory
controlled the verdict, the trial court entered a judgment of no liability in favor of defendants. We
reverse.
¶4 BACKGROUND
¶5 On July 17, 2011, nineteen-year-old Niko Husband went to a dance party at 80th Street
and Ashland Avenue with his friends. The organizers of the event rented a fraternal lodge and
provided security. Attendees were patted down by security as they entered the party. There was
no alcohol served. A disc jockey played music and everyone was dancing. But the party ended
abruptly when police arrived and announced to the crowd that the party was over.
¶6 Chicago Police Officer Marco Proano and his team had received a radio call that a man
with an AK-47 was running towards 80th Street and Ashland Avenue—the same location as the
dance party. The radio call identified the suspect with the AK-47 as a black male with dreadlocks
wearing a white shirt and white or khaki shorts. The officers approached the party and told the
security guards that they were looking for a man with an AK-47. The security guards told the
officers that the suspect was not inside because they patted down everyone prior to entry. The
police ended the party and searched partygoers as they exited.
¶7 As Husband exited the party, he was positioned immediately behind and had his arms
around a female friend, Keoni Jackson. Husband was wearing a bright green T-shirt and blue
jeans. Officer Proano testified that he knew Husband did not meet the description of the suspect
from the radio call. However, in Officer Proano’s judgment and the judgment of other officers,
Jackson appeared distressed or panicked by Husband’s contact. The officers instructed Husband
to take his arms off Jackson and to let her go. Husband did not obey the order. Officer Whigham
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testified that Husband shoved him and refused to let go of Jackson. Officers threw both Husband
and Jackson against the wall and started to forcefully separate them. A struggle ensued.
¶8 Officer Proano testified that when he put his arm between Husband and Jackson, he felt a
gun around Husband’s waist area and then placed his left hand directly on the gun. Husband’s T-
shirt was covering the gun. Officer Proano testified that he could not pull the weapon from
Husband’s waistband due to the struggle but yelled out “gun, gun, gun, he’s got a gun” to alert
his fellow officers. Officer Whigham used his Taser three or four times on Husband causing him
to the fall to the floor on his back. At this time, Officers Proano, Whigham, and Piper were
directly involved in the struggle with four other officers surrounding them in close proximity.
¶9 Crouched over Husband, the three officers attempted to gain control of his arms to
prevent Husband from reaching into his waistband. Officers testified that Husband flailed
violently and uncontrollably. The officers were unable to subdue Husband.
¶ 10 Officer Proano testified that he saw Husband prop himself up with his elbows and reach
into his waistband. Officer Proano testified that Husband then pulled out a gun and pointed it at
Officer Piper, so he shot Husband three times in the chest. All three officers involved in the
struggle testified that they believed Husband was going to shoot Officer Piper before being shot
by Officer Proano. Husband died within seconds.
¶ 11 The testimony of officers described the scene as chaotic and difficult to control. Officer
Proano testified that the number of people at the scene was in the hundreds. As the struggle
between Husband and the officers intensified, so did the officers’ concerns about crowd control.
Officers described being surrounded by the crowd and even believed that the crowd might try to
get involved in the struggle with Husband.
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¶ 12 The issue of whether Husband actually had a gun was hotly contested by plaintiff at trial.
The three officers attempting to subdue Husband claim that they saw him pull a gun and point it
at Officer Piper. The other four officers on the scene did not see Husband with a weapon.
Jackson and Husband’s friend testified that he did not have a gun and that they did not see a gun
in Husband’s waistband as he danced at the party with his shirt off.
¶ 13 Plaintiff questioned the chain of custody of the gun that Husband was accused of
possessing the night he died. After Husband was shot, Officer Piper claims to have taken the gun
from Husband’s hand and made contact with his sergeant, Phillip Orlando. Officer Piper told
Sergeant Orlando that Husband had “just pointed a gun at me.” Sergeant Orlando testified that he
saw Officer Piper holding a gun and took the gun from him because he wanted Officer Piper to
have some time to relax. Sergeant Orlando did not see the shooting.
¶ 14 Sergeant Orlando then testified that he placed the gun taken from Officer Piper on the
driver seat of his vehicle. Sergeant Orlando ordered Officer Proano to stay with the vehicle.
Seeing the gun sitting on the driver’s seat, Officer Proano testified that he picked up and put the
gun in his waistband because he was afraid someone might break into the car and take the gun.
Officer Proano testified that he gave the weapon to a police forensic investigator about an hour
later.
¶ 15 The recovered gun was a semi-automatic with a single round in the chamber. No physical
evidence tied the gun to Husband. The only evidence that Husband had a gun was the testimony
of the three officers who attempted to subdue him. A postmortem examination revealed that
Husband did not have any drugs or alcohol in his system at the time of the shooting. An internal
police investigation of the shooting did not contradict, nor did it confirm, the accounts of
whether Husband pointed a gun at a police officer.
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¶ 16 Plaintiff, as the administrator of Husband’s estate, filed this wrongful death case. Plaintiff
presented expert testimony analyzing the police officers’ conduct in an attempt to demonstrate
that the officers’ actions were inconsistent with Husband having a gun. The expert testimony
also covered the way in which the police officers handled the weapon taken from Husband
immediately after the shooting. Defendants argued that Officer Proano’s use of force was in
conformity with state law.
¶ 17 At this point, the issue on appeal comes into focus. After the parties concluded their
presentations of the evidence to the jury, the trial court instructed the jury as to the applicable
law to be used in deliberation. The court instructed, that in order to find for the plaintiff, the jury
must find that Officer Marco Proano’s actions were “willful and wanton in the following respect:
[that he] shot Niko Husband without legal justification.” The court also instructed the jury that
Officer Proano would have been “legally justified in the use of force likely to cause death or
great bodily harm [but] only when he reasonably believes that such force is necessary to prevent
imminent death or great bodily harm to himself or another.”
¶ 18 The parties also tendered two special interrogatories to the jury. Special interrogatory No.
1 asked the jury “When Officer Proano shot Niko Husband did Officer Marco Proano reasonably
believe that Niko Husband’s actions placed him or his fellow officers in imminent threat of death
or serious bodily harm?” Special interrogatory No. 2 asked the jury “Was officer Proano’s
conduct in shooting Niko Husband willful and wanton?”
¶ 19 The jury returned a general verdict in favor of plaintiff and awarded $3.5 million in
damages. The jury answered “yes” to both special interrogatories. The trial court found that the
jury’s answer to the first special interrogatory controlled the general verdict. The trial court
entered judgment in favor of defendants, holding that the jury’s special finding that Officer
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Proano’s belief that Husband’s actions placed him or his fellow officers in imminent threat of
death or serious bodily harm required the general verdict to be set aside.
¶ 20 Plaintiff filed a posttrial motion arguing that the “Yes” answer to special interrogatory
No. 1 did not control the general verdict, could be reconciled with the general verdict and did not
determine that the shooting was legally justified. The trial court rejected plaintiff’s arguments,
and plaintiff appeals.
¶ 21 ANALYSIS
¶ 22 The issue on appeal is whether the answer to special interrogatory No. 1 controls the
general verdict such that the general verdict cannot stand. We review the issue de novo.
Matthews v. Avalon Petroleum Co., 375 Ill. App. 3d 1, 6 (2007).
¶ 23 At the outset, we address defendants’ contention that plaintiff waived any argument as to
the form of special interrogatory No. 1 by agreeing to its presentation to the jury. It is “beyond
dispute that a failure to specifically object to a special interrogatory when proffered at the
instructions conference will ordinarily waive any claim of error in the giving of that special
interrogatory.” La Pook v. City of Chicago, 211 Ill. App. 3d 856, 864 (1991). Because the
plaintiff cannot complain of an error on appeal “to which that party consented,” plaintiff is bound
by the jury’s special finding. (Internal quotation marks omitted.) Ahmed v. Pickwick Place
Owners’ Ass’n, 385 Ill. App. 3d 874, 888 (2008). Any argument as to the trial court’s submission
of special interrogatory No. 1 to the jury in its agreed form is waived.
¶ 24 Because a special finding will be deemed to control the general verdict only if it is
inconsistent with it, we turn to the merits of plaintiff’s argument that the jury’s special finding
was not inconsistent with the general verdict. Struthers v. Jack Baulos, Inc., 52 Ill. App. 3d 823,
825 (1977).
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¶ 25 Special interrogatories are governed by section 2-1108 of the Code of Civil Procedure,
which states that, “[w]hen the special finding of fact is inconsistent with the general verdict, the
former controls the latter and the court may enter judgment accordingly.” 735 ILCS 5/2-1108
(West 2012). An inconsistency between a general verdict and a special interrogatory should be
found only when the special finding is clearly and absolutely irreconcilable with the general
verdict. Powell v. State Farm Fire & Casualty Co., 243 Ill. App. 3d 577, 581 (1993). If a special
interrogatory does not cover all the issues submitted to the jury and a reasonable hypothesis
exists that allows the special finding to be construed consistently with the general verdict, they
are not absolutely irreconcilable and the special finding will not control. Blue v. Environmental
Engineering, Inc., 215 Ill. 2d 78, 112 (2005). All reasonable presumptions must be exercised in
favor of the general verdict. Kessling v. United States Cheerleaders Ass’n, 274 Ill. App. 3d 776,
779-80 (1995).
¶ 26 The law that governs a party’s liability is instructive as to whether a special finding is
inconsistent with, and thereby controls, a general verdict. Here, both parties and the trial court
agreed that law of legal justification, as codified, controlled the outcome of the case:
“A person is justified in the use of force against another when and to the extent
that he reasonably believes that such conduct is necessary to defend himself or
another against such other’s imminent use of unlawful force. However, he is
justified in the use of force which is intended or likely to cause death or great
bodily harm only if he reasonably believes that such force is necessary to prevent
imminent death or great bodily harm to himself or another, or the commission of
a forcible felony.” 720 ILCS 5/7-1(a) (West 2012).
¶ 27 The statute applies equally in both criminal and civil cases. First Midwest Bank of
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No. 1-17-1332
Waukegan v. Denson, 205 Ill. App. 3d 124, 129 (1990). In order to prove legal justification by
way of self defense, the evidence must show: (1) that force is threatened against a person; (2)
that the person threatened is not the aggressor; (3) that the danger of harm is imminent; (4) that
the force threatened is unlawful; (5) that the person threatened must actually believe: (a) that a
danger exists, (b) that the use of force is necessary to avert the danger, (c) that the kind and
amount of force which he uses is necessary; and (6) that the above beliefs are reasonable. People
v. Stokes, 185 Ill. App. 3d 643, 655-56 (1989). Whether a killing is justified under the law of
self-defense is a question of fact for the jury to decide. First Midwest Bank of Waukegan, 205 Ill.
App. 3d at 129.
¶ 28 Plaintiff draws the court’s attention to the fact that the words “necessary to prevent” are
found in the justification statute and missing from special interrogatory No. 1. This absence,
plaintiff argues, left the issue of whether Officer Proano’s use of deadly force was reasonably
necessary unresolved and rendered the special finding not solely determinative of legal
justification. Plaintiff argues that the general verdict resolves the issue in the negative and a
reasonable hypothesis exists such that the special finding is not inconsistent with the general
verdict. We agree.
¶ 29 The jury’s response to special interrogatory No. 1 was not solely determinative of
whether Officer Proano’s actions were justified and a reasonable hypothesis consistent with the
general verdict exists. The general verdict therefore controls.
¶ 30 The jury was properly instructed as to the law that controlled the outcome of this case. At
the instructions conference, the trial court correctly identified the determinative issue: “there’s
one single issue: Whether or not Proano was justified in shooting. There’s no other issue.” The
trial court instructed the jury as to that issue accordingly and defined both willful and wanton
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conduct and legal justification:
“The Plaintiff claims that the defendant Marco Proano, and the defendant City of
Chicago through Marco Proano, were willful and wanton in the following respect:
shot Niko Husband without legal justification.”
“When I use the expression “willful and wanton conduct” I mean a course
of action which shows actual or deliberate intention to harm, without legal
justification.”
“A police officer is legally justified in the use of force likely to cause
death or great bodily harm only when he reasonably believes that such force in
necessary to prevent imminent death or great bodily harm.”
¶ 31 Before the jury could enter a general verdict in favor of Plaintiff, the trial court instructed
that the jury must find, in pertinent part:
“First, that the defendant acted or failed to act in the way claimed by the Plaintiff
as stated to you in these instructions and that in so acting, or failing to act,
defendant Marco Proano engaged in willful and wanton conduct without legal
justification.”
¶ 32 The jury deliberated and returned a general verdict for plaintiff, and against defendants,
in the amount of $3.5 million. At this point, the jury’s decision was clear; Officer Proano shot
Niko Husband without legal justification. The jury also answered special interrogatories.
¶ 33 After reading special interrogatory No. 1, submitted by defendants, the jury answered
“Yes,” when Officer Proano shot Niko Husband he had a reasonable belief that Husband’s
actions placed him or his fellow officers in imminent threat of death or serious bodily harm. The
jury read special interrogatory No. 2, tendered by plaintiff, and answered “Yes,” Officer
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Proano’s conduct in shooting Niko Husband was willful and wanton. The trial court vacated the
general verdict and entered judgment for defendants believing that the jury’s affirmative answer
to special interrogatory No. 1 was inconsistent with the general verdict. The trial court denied
plaintiff’s posttrial motion and reasoned that, even if the special finding did not cover all of the
issues submitted to the jury, the inclusion of the legal justification instruction into special
interrogatory No. 1 solidified the inconsistency. We disagree.
¶ 34 It is well settled that a court cannot look to the evidence to determine whether a special
finding is inconsistent with a general verdict. Wicks v. Cuneo-Henneberry Co., 319 Ill. 344, 350
(1925). We therefore do not decide the question whether, when Officer Proano reasonably
believed himself and his fellow officers to be under imminent threat of death or great bodily
harm, his use of force was unreasonably disproportionate to that applied by Husband. Nor do we
endeavor to determine whether the force exerted was reciprocal. Such a decision would cause
this court to invade the province of the jury and rule with the “20/20 vision of hindsight” in the
“peace of a judge’s chambers.” (Internal quotation marks omitted.) Graham v. Connor, 490 U.S.
386, 396 (1989).
¶ 35 We hold that the affirmative answer to the question left unresolved by the special finding,
whether Officer Proano’s decision to kill Husband was reasonably necessary to prevent the
amount of force he faced, was indispensable to the jury’s determination that Officer Proano’s
actions were justified under section 7-1(a) of the Criminal Code of 2012 (720 ILCS 5/7-1(a)
(West 2012)).
¶ 36 An individual may not use force in excess of that necessary to protect himself or another.
People v. Jordan, 130 Ill. App. 3d 810, 812 (1985). The decisive question is whether the
defendant’s belief that it was necessary to use deadly force was reasonable under the
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circumstances. People v. Holman, 2014 IL App (3d) 120905, ¶ 58. “The calculus of
reasonableness must embody allowance for the fact that police officers are often forced to make
split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about
the amount of force that is necessary in a particular situation.” Graham, 490 U.S. at 396-97. The
reasonableness of an individual’s belief that it was necessary to use deadly force to prevent death
or great bodily harm raises a question of fact. Jordan, 130 Ill. App. 3d 810 at 812.
¶ 37 A justifiable use of deadly force in self-defense requires a jury to find that a person was
both reasonable in believing that (1) deadly force was necessary to prevent death or great bodily
harm and that (2) death or great bodily harm was imminent. 720 ILCS 5/7-1(a) (West 2012);
People v. Moleterno, 199 Ill. App. 3d 15, 21 (1990).
¶ 38 There is no dispute that the evidence in this case painted a picture of an intimate struggle
between the three officers and Husband prior to his death. Officer Whigham testified that he used
his Taser on Husband three or four times and Husband fell to the ground on his back. Officer
Proano stood around Husband’s left shoulder area, Officer Whigham was on Husband’s left side
between his knee and waist, and Officer Piper was by Husband’s feet. All three officers were in a
crouched position. Officer Proano testified that while Husband was on the ground, he “was just
flailing his arms around” and was “like a fish out of water,” in that he was “just pulling, shoving,
just lifting his arms and trying to get up.” What happened next served as the factual crux of the
case.
¶ 39 Officer Proano testified that he saw Husband prop himself up with his elbows and reach
into his waistband. With his right hand, Husband pulled out a gun. Husband then pointed the gun
Officer Piper. Officer Proano shot Husband before he could shoot Officer Piper.
¶ 40 Plaintiff argued to the jury that Husband’s pulling and pointing a gun at Officer Piper was
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a fabrication manufactured post-hoc to justify an unjustified killing. Defendants argued the
opposite; the officers’ testimony was truthful and Officer Proano saved Officer Piper’s life.
¶ 41 It was for the jury to decide who to believe and whether the intimate contact between
Husband and the three officers placed Officer Proano in such a position that deadly force was
unjustified. “[I]t is the province of the jury to resolve conflicts in the evidence, to pass upon the
credibility of the witnesses, and to decide what weight should be given to the witnesses’
testimony.” (Internal quotation marks omitted.) Redmond v. Socha, 216 Ill. 2d 622, 652 (2005).
All reasonable presumptions exercised in favor of the general verdict and nothing given in aid of
the special finding, the jury could have determined Officer Proano’s killing of Husband to be
unjustified given his physical proximity to Husband and potential ability to use less than deadly
force to avoid the harm posed to Officer Piper.
¶ 42 Special interrogatory No. 1 dispensed with an issue of ultimate fact indispensible to a
finding that Officer Proano was justified when he shot Husband. In doing so, the jury’s special
finding left the question of whether Officer Proano’s decision to kill Husband was reasonably
necessary under the circumstances open and the general verdict is deemed to have answered the
question in the negative. A reasonable hypothesis exists that, despite Officer Proano’s reasonable
belief that he and his fellow officers were under imminent threat of death or great bodily harm,
the jury may have determined that his decision to use deadly force was not reasonably necessary
to prevent the threat he faced.
¶ 43 The defendants argue that any decision that the special finding is not solely determinative
of legal justification would constitute a first time holding that self-defense using deadly force
might be unjustified against the most dangerous threat a person can face. The defendants’
position presupposes that the jury believed their theory of the case and the testimony of the three
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police officers. We are neither inclined, nor at liberty, to consider the evidence in such a manner.
¶ 44 The defendants proclaim that “it is a bedrock principle of self-defense that a person who
is threatened may respond proportionally to defend against that threat.” The proclamation
highlights that which was missing from special interrogatory No. 1 and the issue the jury was
thereby unable to resolve; that the threat posed by Husband’s actions was met with a reasonably
and necessarily proportionate response by Officer Proano. The fact that the jury answered special
interrogatory No. 1 in the positive is not a per se adoption by the jury of defendants’ case and
series of events as told by the three officers. As such, the bedrock principle of self-defense
remained unaddressed by the defendants’ proffer of, and the jury’s answer to, special
interrogatory No. 1. We construe the presentation of a nondeterminative special interrogatory as
against the proffering party. Bilderback v. Admiral Co., 227 Ill. App. 3d 268, 271 (1992).
¶ 45 Because the jury’s special finding was nondeterminative of an ultimate issue of material
fact indispensible to a jury’s determination that a person’s actions are justified pursuant to
section 7-1(a) and a reasonable hypothesis exists capable of reconciling the special finding with
general verdict, the two are not absolutely irreconcilable and the general verdict controls.
¶ 46 Though our holding stands unaided by the jury’s affirmative answer to special
interrogatory No. 2, this Court cannot agree with the defendant’s assertion that because the jury’s
special finding is consistent with the general verdict, it is “meaningless.”
¶ 47 Special interrogatory No. 2 asked the jury whether Marco Proano’s conduct in shooting
Husband was willful and wanton. Because the jury instructions correctly defined willful and
wanton conduct as including the words “without legal justification,” and correctly defined legal
justification by itself, special interrogatory No. 2 properly covered the issue of legal justification
when read in conjunction with the jury instructions. This reasoning was employed by the court in
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Smilgis v. City of Chicago, 97 Ill. App. 3d 1127, 1130 (1981), where a special interrogatory
questioning the ultimate issue of plaintiff’s freedom from contributory negligence was found to
have properly covered the issue of proximate causation when the jury instructions, which
correctly defined contributory negligence as inclusive of the correctly and separately defined
term of proximate causation, were read in conjunction with the special interrogatory.
¶ 48 The jury’s affirmative answer to special interrogatory No. 2, therefore, when read in
conjunction with the jury instructions, resolved the issue left unresolved by the jury’s answer to
special interrogatory No. 1 without looking to the general verdict; Officer Proano’s use of deadly
force was not justified. “It is presumed the jury better understood the narrowly tailored issue
presented in the special interrogatory, and the special verdict is, therefore, a more accurate
reflection of the jury’s determination.” Kosrow v. Acker, 208 Ill. App. 3d 143, 146 (1991).
¶ 49 We note that the trial court cited Smiglis in support of its holding that a reading of the
jury instructions in conjunction with the jury’s answer to special interrogatory No. 1 resolved the
issue of whether Officer Proano’s deadly force was justified. 97 Ill. App. 3d at 1130. But the jury
instructions could not read words into special interrogatory No. 1 that were missing. As such, the
answer to special interrogatory No. 1 remains nondeterminative even when read together with
the defined terms contained in the instruction to the jury.
¶ 50 The parties further dispute whether plaintiff has argued a different theory of the case on
appeal than presented to the jury. “It is well settled that the theory under which a case is tried in
the trial court cannot be changed on review.” Ahmed, 385 Ill. App. 3d at 887. To allow a party to
change his or her trial theory on review would weaken the adversarial process and the system of
appellate jurisdiction and could also prejudice the opposing party, who did not have an
opportunity to respond to that theory in the trial court. Id.
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¶ 51 Defendants argue that only after the trial court vacated the general verdict did plaintiff
argue, for the first time, that Officer Proano’s use of force was not reasonably necessary under
the circumstances. Defendants cast plaintiff’s first theory of the case as confined to the argument
that Officer Proano was unreasonable in his belief that death or great bodily harm was imminent
because Husband never pulled or pointed a gun. Defendants also highlight the testimony of
plaintiff’s expert, Dennis Waller, who testified that if an officer has a reasonable fear of
imminent death or great bodily harm to himself and others he is fully justified in discharging his
weapon to stop that threat.
¶ 52 We hold that plaintiff did not advance such a different theory of the case to the jury as to
analogize her actions with those of the plaintiff in Ahmed and find that plaintiff sufficiently
argued to the jury that Officer Proano’s use of deadly force was not reasonably necessary under
the circumstances because Husband never pointed a gun at Officer Piper or never possessed a
weapon in the first place.
¶ 53 Having found that the general verdict controls, we decline to address defendants’
argument that plaintiff has waived consideration of whether the special finding was against the
manifest weight of the evidence.
¶ 54 CONCLUSION
¶ 55 The trial court should have entered judgment in favor of plaintiff. Accordingly, the
judgment entered in favor of the defendants is reversed. The trial court is directed to enter
judgment in favor of plaintiff consistent with the general verdict.
¶ 56 Reversed.
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