Donna Flournoy v. City of Chicago

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 14-3776

DONNA FLOURNOY,

Plaintiff-Appellant,

v.

CITY OF CHICAGO, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:09-cv-07159 — William T. Hart, Judge.

____________________

ARGUED MARCH 31, 2016 — DECIDED JULY 21, 2016

____________________

Before KANNE and MANION, Circuit Judges, and PEPPER,

District Judge. *

MANION, Circuit Judge. Donna Flournoy was severely in-

jured by a flashbang grenade deployed by Chicago police

during their execution of a search warrant for a suspected

drug dealer. Flournoy responded with this lawsuit against

*Hon. Pamela Pepper, Eastern District of Wisconsin, sitting by desig-

nation.

2 No. 14-3776

two of the officers involved in the search, alleging that they

used excessive force in violation of the Fourth Amendment.

The case went to trial and the jury found for the defendants.

Flournoy now seeks a new trial on several grounds. She

asserts that the jury’s verdict has no reasonable basis in the

record; that the district court erroneously excluded a key

piece of evidence at trial; and that a signed statement submit-

ted by the jurors with their verdict shows that they disre-

garded the law in finding for the defendants.

We affirm. The jury’s verdict is supported by the record

and is not against the manifest weight of the evidence; the dis-

trict court’s evidentiary ruling was not an abuse of discretion;

and the jury’s statement is consistent with the verdict and

does not affect the verdict’s validity. Flournoy received a fair

trial before a jury of her peers, and is not entitled to a new

trial.

I. BACKGROUND

A. Search Warrant

In November 2008, Chicago police officer Robert Lobianco

learned from an informant that a man named Anthony was

selling crack cocaine from a garden apartment located at 1108

N. Lawler Ave. The informant said that he had frequently

purchased crack from Anthony at the apartment over the past

several months and that Anthony answered the door carrying

a handgun during the transactions. Based on this information,

Officer Lobianco applied for and obtained a search warrant

for the apartment on November 13, 2008. Officer Lobianco did

not believe that he could execute the warrant safely, so he re-

quested assistance from the local SWAT team. SWAT team ser-

geants Wayne Wieberg and Thomas Lamb agreed that the

No. 14-3776 3

warrant presented a high degree of risk and approved the re-

quest.

B. SWAT Team’s Preparations

Officer Daniel Colbenson and another SWAT team mem-

ber then prepared a mission plan for executing the warrant.

In doing so, Officer Colbenson relied on an official “High Risk

Warrant Services” form signed by Sergeant Wieberg. The

form indicated that Anthony might be accompanied by “nu-

merous” other people selling narcotics from the apartment;

that he was possibly a convicted felon; and that he was known

to protect his drug operation and to answer the door carrying

a weapon in his waistband. Officer Colbenson was also aware

that the apartment was in a high-crime neighborhood that

would require officers to pay special attention to the sur-

rounding area outside the apartment during the search.

In light of these considerations, Officer Colbenson’s plan

called for a team of approximately twenty officers to effect a

“dynamic entry” with the goal of securing the premises

within thirty seconds. Some officers were assigned to enter

and clear the apartment, others to secure the building’s exte-

rior, and others to conduct surveillance from an unmarked

van. The plan also authorized the use of “flashbang” grenades

as needed. A flashbang is an explosive diversionary device

that generates a blinding light and deafening noise to give po-

lice a tactical advantage by temporarily disorienting those

nearby.

C. Execution of the Warrant

The SWAT team executed the warrant on the evening of

November 13, 2008. At the time, Flournoy was at the apart-

4 No. 14-3776

ment visiting her son “Tony,” who was there with his girl-

friend and another of Flournoy’s sons. For an hour or two be-

fore the search, two officers specially trained in surveillance

watched the apartment to gather real-time intelligence. The

officers informed Officer Colbenson that the apartment lights

were on, but Officer Colbenson did not receive any infor-

mation about who was in the apartment.

Once the full SWAT team arrived, an officer knocked on

the apartment door and yelled, “Chicago police, search war-

rant!” When no one answered after a number of seconds, the

officers breached the door with a battering ram. Around the

same time, Officer Colbenson used a “break-and-rake” tool to

clear out the windows along the front and side of the apart-

ment. 1 (This was intended to cause a distraction and to enable

the officers to see into the area they were about to enter.) Upon

breaking the side window, Officer Colbenson saw Flournoy

move off an air mattress in the direction of the door that had

been breached. Officer Colbenson testified that he saw

Flournoy only momentarily, “probably a second at the most.”

He further testified that he did not know it was Flournoy at

the time, and that, “for all [he] knew, she could have been the

offender.”

Meanwhile, Officer Quinn looked through the doorway to

see if it was safe to use a flashbang. Officer Quinn did not see

1 A break-and-rake is a long, hooked pole designed to break windows

and pull curtains out of the way.

No. 14-3776 5

anyone inside, so he lightly tossed a flashbang into the apart-

ment’s entryway. 2 Unfortunately, the flashbang’s blast se-

verely wounded Flournoy’s right leg. 3 After the flashbang

went off, a group of officers entered through the doorway and

quickly secured the apartment. Several officers administered

first aid to Flournoy until she was transported to the hospital

by ambulance. The SWAT team’s search of the apartment un-

covered narcotics and a loaded 9 millimeter handgun.

D. Legal Proceedings

Flournoy subsequently filed a civil action against Officers

Quinn and Colbenson under 42 U.S.C. § 1983, alleging that

they used excessive force in connection with the November

13, 2008, search. Flournoy further alleged that Officer Colben-

son unlawfully failed to intervene to prevent Officer Quinn’s

use of excessive force.

During discovery, the defendants produced two copies of

a typed police report that was co-authored and signed by Of-

ficer Colbenson shortly after the search. The report recounts

the circumstances of Flournoy’s injury and notes that “a Noise

Flash Diversionary Device” was deployed in the search. One

of the copies also includes a handwritten notation beneath the

typed narrative stating, “two flashbangs deployed.” The other

2 Specifically, Officer Quinn testified that he gave the flashbang a

“slight toss”; it “didn’t go up into the air,” but “just left [his] waist level

and just dropped.”

3 The record contains conflicting evidence regarding Flournoy’s pre-

cise location at the time of her injury. Officer Colbenson testified that he

saw Flournoy move from the mattress just before the flashbang went off,

while Flournoy testified that she was sleeping on the mattress when she

was injured.

6 No. 14-3776

copy does not include this handwriting, and neither copy con-

tains any additional handwritten statements. When ques-

tioned about the handwriting at deposition, Officers Quinn

and Colbenson both testified that they did not make the nota-

tion and did not know who did. They also testified that they

were aware of only one flashbang being deployed during the

search. 4 Over Flournoy’s objection, the district court ulti-

mately excluded the handwritten notation as hearsay and in-

stead admitted a copy of the report without the notation.

Following trial the jury returned a verdict for the defend-

ants on all claims. The jury submitted the following signed

statement with its verdict: “While we agree that this was a

horrible instance, in our collective opinion, the errors made

by the Chicago Police Department as a whole cannot fall on

the shoulders of these two defendants.” The district court en-

tered final judgment for the defendants and denied

Flournoy’s motion for a new trial. Flournoy filed this timely

appeal.

II. DISCUSSION

Flournoy raises three arguments on appeal. First, she ar-

gues that the verdict must be reversed because no rational

jury could conclude that the defendants did not use excessive

force when conducting the search that led to her injury. Sec-

ond, she contends that the district court erred by excluding

4 In contrast, Flournoy’s two sons and the remaining occupant of the

apartment variously testified to hearing multiple explosive noises during

the search. See, e.g., Trial Tr. at 441, 447 (Flournoy’s son “Tony” testifying

that he heard “two or three” “bangs” that sounded like “little bombs”);

458 (Flournoy’s other son testifying that he heard several “bombs” or

“boom sounds”); 489–92 (Tony’s girlfriend testifying that she saw “maybe

like eight” “smoke bombs” get shot through the apartment’s windows).

No. 14-3776 7

the handwritten statement, “two flashbangs deployed,”

found on one of the copies of Officer Colbenson’s typed police

report. Finally, she argues that the note submitted by the jury

with its verdict undermines the verdict’s validity and requires

a new trial. We address each argument in turn.

A. The jury’s verdict is not against the manifest weight

of the evidence.

We review the district court’s denial of a motion for a new

trial for abuse of discretion. United States v. Whiteagle, 759 F.3d

734, 756 (7th Cir. 2014). Under this “‘extremely deferential’”

standard, Galvan v. Norberg, 678 F.3d 581, 588 (7th Cir. 2012), a

new trial may be granted “only if the jury’s verdict is against

the manifest weight of the evidence.” King v. Harrington, 447

F.3d 531, 534 (7th Cir. 2006). To meet this standard, Flournoy

must demonstrate that “no rational jury” could have ren-

dered a verdict against her. Id. We must view the evidence in

the light most favorable to the prevailing parties, and will sus-

tain the verdict so long as it is supported by a “‘reasonable

basis’” in the record. Id.

In determining whether police used excessive force under

the Fourth Amendment, the relevant inquiry is “whether the

officers’ actions [were] objectively reasonable in light of the

totality of the circumstances.” Fitzgerald v. Santoro, 707 F.3d

725, 733 (7th Cir. 2013) (citing Graham v. Connor, 490 U.S. 386,

396–97 (1989)). “The ‘reasonableness’ of a particular use of

force must be judged from the perspective of a reasonable of-

ficer on the scene, rather than with the 20/20 vision of hind-

sight.” Graham, 490 U.S. at 396. When applying this standard,

we are mindful that “police officers are often forced to make

8 No. 14-3776

split-second judgments—in circumstances that are tense, un-

certain, and rapidly evolving—about the amount of force that

is necessary in a particular situation.” Id. at 396–97.

Before executing the warrant in this case, the defendants

were advised that they would be searching the apartment of

a drug dealer who protected his operation and carried a gun,

who had been identified as a possible convicted felon, and

who might be accompanied by numerous other individuals

involved in the drug trade. The suspect’s apartment was also

known to be in a high-crime area. In light of these potentially

dangerous circumstances, a rational jury could conclude that

the defendants’ challenged actions were objectively reasona-

ble measures designed to ensure officer safety.

To begin, the evidence supports the jury’s finding that Of-

ficer Colbenson acted reasonably when he cleared the apart-

ment’s windows to cause a distraction and enable officers to

see inside the area they were about to enter. Flournoy sug-

gests that Officer Colbenson should have told the other offic-

ers not to deploy a flashbang once he saw Flournoy inside,

but Officer Colbenson testified that he saw Flournoy only mo-

mentarily and so had no opportunity to intervene. Officer

Colbenson’s testimony on this point supports the jury’s ver-

dict, and the jury was entitled to believe him. See King, 447

F.3d at 534.

The evidence also supports the jury’s finding that Officer

Quinn did not use excessive force when he deployed the

flashbang to facilitate a safe and speedy execution of the war-

rant. Officer Quinn testified that, in accordance with his train-

ing, he first visually scanned the area where the flashbang was

to be deployed, and released the flashbang only after deter-

mining that the area was clear. Although Officer Quinn might

No. 14-3776 9

have seen Flournoy (and the injury might have been avoided)

if he had first entered the apartment to conduct a more thor-

ough inspection, he testified that he believed it was dangerous

to enter the apartment before deploying the flashbang and

that he was specifically trained not to do so. See Trial Tr. at 278

(Officer Quinn confirming that he was trained not to enter a

room in which he was about to use a flashbang, and explain-

ing that, “[i]f I was to enter the apartment or stick my head in,

somebody inside an area where I couldn’t see could have shot

me”); see also id. at 622 (Sergeant Lamb testifying that the of-

ficers were trained “never” to step inside a room before de-

ploying a flashbang: “It defeats the purpose of having the

flashbang. … So you deploy the flashbang first, then take that

advantage and move in once it’s deployed.”). 5 Again, we de-

cline to supplant the jury’s assessment of Officer Quinn’s cred-

ibility on these critical points. 6

Viewed in the light most favorable to the defendants, the

evidence adequately supports the jury’s verdict that Officers

Quinn and Colbenson did not use excessive force, and that

5 This court has also previously recognized that the Fourth Amend-

ment does not require police to expose themselves to potential gunfire

when inspecting an area where a flashbang is to be deployed. See Estate of

Escobedo v. Martin, 702 F.3d 388, 408 (7th Cir. 2012) (“There are many situ-

ations where a visual inspection of a room prior to deploying a flashbang

is impossible or extremely dangerous.”).

6 Flournoy also argues that the jury’s verdict should be overturned

because the use of a flashbang in conjunction with a knock-and-announce

search warrant is excessive force as a matter of law. Flournoy cites no au-

thority in support of this categorical proposition, nor does her argument

comport with the Supreme Court’s totality-of-the-circumstances approach

to determining reasonableness under the Fourth Amendment. We there-

fore reject this argument without further comment.

10 No. 14-3776

Officer Colbenson did not unlawfully fail to intervene. The

verdict is not against the manifest weight of the evidence, and

the district court did not abuse its discretion in denying

Flournoy’s motion for a new trial.

B. The district court properly excluded the handwriting

on the police report.

Flournoy next argues that the district court erroneously

excluded the handwritten notation––“two flashbangs de-

ployed”––found on one of the copies of Officer Colbenson’s

typed police report produced in discovery. She asserts that the

exclusion of this evidence deprived her of a fair trial because

the number of flashbangs deployed was crucial to the deter-

mination of excessive force.

We review the district court’s evidentiary rulings for abuse

of discretion. Griffin v. Bell, 694 F.3d 817, 826 (7th Cir. 2012).

Hearsay, or an out-of-court statement offered to prove the

truth of the matter asserted, is generally not admissible unless

it falls within an exception to the hearsay rule. United States v.

Hawkins, 803 F.3d 900, 901 (7th Cir. 2015). Flournoy does not

dispute that the handwriting on Officer Colbenson’s report is

hearsay, but argues that it is nonetheless admissible under

two exceptions: the business-records exception, Fed. R. Evid.

803(6), and the residual exception, Fed. R. Evid. 807(a). 7

7For the first time on appeal, Flournoy argues that the handwriting is

also admissible as a public record and as a statement by an opposing

party. See Fed. R. Evid. 801(d)(2), 803(8). Flournoy has waived these argu-

ments by failing to raise them below. See Selective Ins. Co. of S.C. v. City of

Paris, 769 F.3d 501, 508 (7th Cir. 2014) (“‘It is a well-established rule that

arguments not raised to the district court are waived on appeal.’”).

No. 14-3776 11

Under Federal Rule of Evidence 803(6), the business-rec-

ords exception applies only if the record was made (1) at or

near the time of the event that was recorded, (2) by (or from

information transmitted by) someone with knowledge, and

(3) in the course of a regularly conducted activity of the or-

ganization. Fed. R. Evid. 803(6)(A)–(B). None of these require-

ments is met here. There is no evidence regarding when the

handwriting was made, so there is no indication that it was

made at or near the time of the search or in the normal course

of business. And since no one knows who wrote it, there is

likewise no suggestion that it was written or transmitted by

someone with knowledge of the event that it describes. 8

The residual exception doesn’t apply either. That excep-

tion applies only when the hearsay statement has adequate

circumstantial guarantees of trustworthiness; is more proba-

tive on the point for which it is offered than any other evi-

dence that the proponent can obtain through reasonable ef-

forts; and admitting it would serve the interests of justice. Fed.

R. Evid. 807(a). The handwriting here plainly lacks circum-

stantial guarantees of trustworthiness: there is no indication

of who made it, or when and how it was made; it appears on

only one of the copies of the report; and it conflicts with the

report’s official typed narrative (which states only that “a”

flashbang was deployed in the search), as well as Officers

Quinn and Colbenson’s testimony that to the best of their

knowledge only one flashbang was deployed. Nor was the

notation the most probative evidence available to support

Flournoy’s theory that more than one flashbang was used: in

8 The business-records exception also does not apply because, as dis-

cussed below, the questionable circumstances surrounding the note’s

origin suggest a lack of trustworthiness. See Fed. R. Evid. 803(6)(E).

12 No. 14-3776

contrast to the report’s typed narrative and the defendants’

testimony, Flournoy’s two sons and the remaining occupant

of the apartment all testified that they heard multiple explo-

sions during the search. Lastly, given the absence of any indi-

cia of trustworthiness, the district court was well within its

discretion to conclude that admitting the handwriting would

not serve the interests of justice.

In sum, the district court did not abuse its discretion in ex-

cluding the handwritten notation and instead admitting a

copy of Officer Colbenson’s report that did not include the

handwriting. The district court’s evidentiary ruling does not

provide a basis for granting Flournoy a new trial.

C. The jury’s note does not affect the validity of the ver-

dict.

As mentioned earlier, the jury submitted with its verdict a

signed note that read: “While we agree that this was a horrible

instance, in our collective opinion, the errors made by the Chi-

cago Police Department as a whole cannot fall on the shoul-

ders of these two defendants.”

Flournoy argues that this note renders the verdict “fatally

defective” because it shows that the jurors’ decision was (var-

iously) the product of confusion, sympathy for the defend-

ants, “willful disregard for the law,” “deliberate refusal to fol-

low the [c]ourt’s instructions,” “de facto jury nullification,”

and unidentified “impermissible extraneous considerations.”

She further labels the note an “admission” by the jurors that

their verdict was not based on the law or the evidence.

Flournoy’s argument fails for several reasons. First, con-

trary to Flournoy’s jumbled litany of accusations, nothing in

No. 14-3776 13

the note’s plain language suggests any misconduct by the ju-

rors. If anything, the note appears to show that the jury care-

fully followed the court’s instructions and dutifully applied

the law to the facts as it found them. The court instructed the

jury to find a defendant liable for excessive force only if

Flournoy proved by a preponderance of evidence that “the

particular defendant used unreasonable force.” In line with

that instruction––and consistent with the verdict––the jury’s

note indicates that, whatever errors they believed were at-

tributable to the Chicago Police Department as a whole,

Flournoy failed to show by a preponderance of evidence that

the “particular defendant[s]” in question used unreasonable

force. 9 The jurors should be commended—not castigated––

for their apparent commitment to the rule of law in resolving

what all would agree was a challenging case based on a trou-

bling set of facts.

More to the point, though, the jury’s statement does not

undermine the verdict because the statement is a gratuitous

observation that is immaterial to the verdict’s validity. Indeed,

“[f]ederal courts have long held that additional jury notations

that are not directly responsive to the jury charge and verdict

form are surplusage, and are to be ignored.” Great Pines Water

Co. v. Liqui-Box Corp., 203 F.3d 920, 924, 924 n.10 (5th Cir. 2000)

(collecting cases); see also Freeman v. Franzen, 695 F.2d 485, 490

(7th Cir. 1982) (citations omitted) (“Ordinarily a recommen-

dation from the jury is disregarded, and does not impeach the

9 Flournoy’s initial complaint included a Monell claim against the City

of Chicago Police Department, see Monell v. Department of Social Services of

the City of New York, 436 U.S. 658 (1978), but Flournoy voluntarily dis-

missed that claim with prejudice before trial.

14 No. 14-3776

validity of the verdict.”). Accordingly, the jury’s note is not ev-

idence of impropriety and does not warrant a new trial. 10

III. CONCLUSION

The jury’s verdict is supported by the evidence, and

Flournoy received a fair trial. The judgment of the district

court denying Flournoy’s motion for a new trial is AFFIRMED.

10The defendants alternatively argue that we should affirm based on

qualified immunity. Because we uphold the jury’s verdict that no consti-

tutional violation occurred, we do not reach this alternative argument.