Efrain Sanchez v. City of Chicago

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-3801

E FRAIN SANCHEZ,

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. 08 C 2735—John W. Darrah, Judge.

A RGUED JANUARY 10, 2012—D ECIDED N OVEMBER 2, 2012

Before B AUER, R OVNER, and SYKES, Circuit Judges.

R OVNER, Circuit Judge. Efrain Sanchez sued the City

of Chicago and two of its police officers, Rick Caballero

and Matthew Peterson, pursuant to 42 U.S.C. § 1983.

Sanchez alleged that Caballero and Peterson had

falsely arrested him, employed excessive force against

him during the arrest, and failed to intervene in the

misconduct of one another and other unnamed officers

in connection with the arrest—all in contravention of

2 No. 10-3801

his Fourth Amendment right to be secure in his person

from unreasonable seizures. See Graham v. Connor, 490

U.S. 386, 109 S. Ct. 1865 (1989). He also asserted state-

law claims for battery, respondeat superior, and indem-

nification, although he ultimately dismissed these

claims voluntarily. The federal claims were tried to a

jury, which found in the defendants’ favor. Sanchez

now appeals, contending that the district court com-

mitted various errors in connection with the trial.

Although the parties and the court at times appear to

have misapprehended the prospective liability of the

defendants for the acts of the unnamed officers, and

although the jury was not properly instructed as to the

potential liability of Officers Caballero and Peterson for

failing to intervene in the alleged wrongdoing of the

unnamed officers, we conclude that none of the errors

that Sanchez has preserved for appeal warrants reversal.

We therefore affirm the judgment.

I.

The claims in this case arise from an encounter that

the Chicago police had with Sanchez and his brother in

the early hours of April 5, 2008. Sanchez testified that

he and his brother José and two of their friends, Israel

Cabral and Alex Castillo, were gathered outside of

José’s house awaiting the arrival of one or more women

they had met at a party earlier in the evening. Around

the time that one of these women, Valerie Rodriguez,

showed up, three unmarked police cars pulled up in

front of the house and officers demanded to know what

No. 10-3801 3

the men were doing outside. José explained that they

had been waiting for Rodriguez. Evidently not satisfied

with the explanation, the officers ordered the men to

place themselves against one of the cars, empty their

pockets, and place the contents onto the top of the

car; the men were then subjected to a pat-down. José

protested that the officers had no right to search them.

Officer Caballero, whom José recognized from Cabal-

lero’s off-duty work as a security guard at a restaurant

where José worked, seized the keys to José’s house

(which José had removed from his pocket and placed on

top of the car) and walked toward the dwelling. Sanchez

protested that Caballero had no right to enter the house

without José’s permission. A swearing match ensued

between the officers and Sanchez, who was placed in

handcuffs. According to Sanchez, Caballero, just before

he entered José’s house, nodded his head at a group of

four or more officers who were standing near Sanchez;

those officers then began to force Sanchez into a nearby

alley. When Sanchez resisted, the officers kicked his

legs out from underneath him and forced him to the

pavement. Sanchez testified that the officers then began

to hit and kick him, ignoring the protests of José and

Rodriguez. José made a 911 call on his cell phone to

report that the police were beating his brother. Caballero,

who by this time had emerged from the house, picked

Sanchez up off the ground, and the police left the

scene without arresting anyone.1

1

Sanchez would later testify that the officers never returned to

him the wallet, keys, or cell phone that they took from him

(continued...)

4 No. 10-3801

Caballero and Peterson gave a significantly different

account at trial. Caballero testified that he was on patrol

with Peterson when they saw Sanchez fighting with

his brother outside of José’s home: “What I observed

was the two brothers entangled in a combative wrestling

type hold.” R. 167-1 at 7. The officers stopped to

break up the fight. Sanchez, whose face was bloodied,

was placed in handcuffs, and all four of the men

present were patted down. Caballero said he was so

familiar with the Sanchez brothers that he did not ask

either of them to produce identification. The officers

decided there was no point in making an arrest and left

the scene. They later filled out contact cards docu-

menting the encounter which omitted any mention of

a fight. Caballero wrote as the reason for the encounter

that José had been “loitering”; whereas Peterson wrote

that Sanchez had “made a suspicious movement as if

to conceal something.” Id. at 24, 25-26.

Sanchez’s second amended complaint sought relief

from Caballero, Peterson, “as yet unknown” Chicago

police officers, and the City itself. R. 96 at 1 ¶ 3. As relevant

to this appeal, the complaint alleged that the individual

police officers had violated Sanchez’s Fourth Amend-

ment rights by arresting him without probable cause,

employing excessive force in arresting him, and failing “to

1

(...continued)

during the initial pat-down; and his second amended complaint

included allegations that the officers unlawfully seized his

property. However, as these allegations are not material to

the issues we address in this appeal, we need not discuss

them further.

No. 10-3801 5

intervene and lessen or prevent the illegal stop, search,

illegal seizure, and use of excessive force inflicted upon

plaintiff . . . .” Id. at 8 ¶ 35. A companion state claim

alleged that the officers were also liable for battery and

unlawful detention under the common law of Illinois.

The complaint also alleged that under Illinois law,

because the officers were acting within the scope of their

employment when they tortiously injured Sanchez, the

City was responsible for the acts of the officers pursuant

to the doctrine of respondeat superior.

These claims were presented to a jury over the course

of a five-day trial. Before the jury retired to consider

its verdict, however, Sanchez voluntarily dismissed all

of the state-law claims. The jury found in favor of

Caballero and Peterson on each of the federal claims

against them. Sanchez now appeals, contending that

various errors in the instructions that the court gave to

the jury and in the admission of evidence entitle him

to a new trial.

II.

Before we address the particular errors that Sanchez

raises on appeal, a few words are in order regarding

the interplay between the alleged actions of the unidenti-

fied police officers and the claims against Caballero,

Peterson, and the City. This was a recurring subject of

discussion and dispute among the parties and the court

below, and because it has a bearing on some of the argu-

ments that Sanchez has made on appeal, it behooves us

to clarify the extent to which the named defendants,

including the City, could be held liable for the acts of

6 No. 10-3801

any unidentified police officer who may have been re-

sponsible for the injuries of which Sanchez complained.

Sanchez was never able to identify all of the officers

who he believed participated in the April 5 incident, nor

could he produce evidence as to which of the officers,

named or unnamed, allegedly dragged him to the alley-

way, tripped and shoved him to the pavement, and

kicked or otherwise struck him while he was on the

ground. As relevant here, the only two officers he was

able to identify were Caballero and Peterson. Both

officers acknowledged that they participated in the col-

lective pat-down of Sanchez and the three other men,

but neither could recall whether he had frisked and/or

handcuffed Sanchez. Sanchez believed that Peterson

may have been one of the officers who handcuffed him

(although he was not sure), and he testified that Caballero

was standing behind him when he was placed in hand-

cuffs. Sanchez could not say that either of those two

officers actually participated in the alleged alleyway

beating. By Sanchez’s account, Caballero had gone into

his brother’s apartment before the beating commenced

(albeit after Caballero nodded his head at the officers

who allegedly beat him) and emerged after the beating

was already in progress. Peterson, on the other hand, was

allegedly standing beside Sanchez during the beating,

but Sanchez could not rule Peterson in or out of the

group of officers who actually struck him. Apart from

the alleged beating, Sanchez asserted only that either

Caballero or Peterson handcuffed him at the beginning

of the encounter, and may have used excessive force

in doing that.

No. 10-3801 7

Although Sanchez was not able to identify the other

officers involved in the encounter, his claims against

both Caballero and Peterson, as well as the City, none-

theless were premised in significant part on the actions

of the unidentified officers. It goes without saying that

Caballero and Peterson would be liable to Sanchez for

their own acts: so if they deliberately and unnecessarily

kicked Sanchez, for example, they would be liable for

that use of excessive force. But Sanchez also contended

that even if officers other than Caballero and Peterson

committed such wrongful acts, Caballero and Peterson

could be liable for the failure to intervene and stop

their fellow officers from violating Sanchez’s rights. See

Miller v. Smith, 220 F.3d 491, 495 (7th Cir. 2000); Yang v.

Hardin, 37 F.3d 282, 285 (7th Cir. 1994); Byrd v. Brishke,

466 F.2d 6, 10-11 (7th Cir. 1972). In fact, as we have

noted, Sanchez’s second amended complaint included

an express claim against the named officers for their

failure to intervene in the alleged wrongdoing of their

brethren. R. 96 at 8 (Count IV). Furthermore, Sanchez

argued that Illinois law rendered the City liable under

the doctrine of respondeat superior for the wilful and

wanton acts of its police officers, even if those officers

remain unidentified. See Williams v. Rodriguez, 509 F.3d

392, 405 (7th Cir. 2007). Sanchez’s complaint, as we have

noted, thus included a respondeat superior claim. R. 96

at 12 (Count X).2

2

Below, Sanchez also posited an indemnification theory under

which he could somehow pursue federal claims against the

unidentified officers for which the City would be liable to

(continued...)

8 No. 10-3801

Although these theories had ample legal support, the

district judge at first expressed a disinclination to allow

Sanchez to pursue relief against one or more of the

named defendants based on the acts of any unidentified

police officer. The judge’s primary concern appeared

to be that Sanchez not attempt to pursue a judgment

against any unnamed officer. See R. 166 at 4-6; e.g., Eison

v. McCoy, 146 F.3d 468, 471-72 (7th Cir. 1998) (plaintiff

cannot seek relief against officer whose identity is not

ascertained until after the statute of limitations has

run). But the judge also made more sweeping remarks

suggesting that he would not permit Sanchez’s coun-

sel to so much as mention any unnamed officer. R. 166

at 5-6. When Sanchez’s counsel attempted to explain

why, in his view, both the City and the named officers

could be liable based on wrongs committed by unnamed

police officers, he was cut off. Id. at 4-5.

Later in the trial, however, the court signaled its under-

standing that the City could bear respondeat superior

liability under state law for the wrongful acts of its

police officers, and that Peterson and Caballero could be

liable under section 1983 for their failure to intervene

in the wrongful acts of their unnamed colleagues. The

judge, for example, indicated that he would instruct

the jury as to respondeat superior liability, and he

2

(...continued)

him under state law. R. 169-1 at 69-73. The district court

rejected this possibility for want of any cited authority sup-

porting it. Id. at 73-74. Sanchez does not press the theory

on appeal, and therefore we need not consider it.

No. 10-3801 9

solicited proposed instructions as to the City’s liability

under state law for the acts of its unidentified officers.

R. 169-1 at 64. And the battery instruction subsequently

approved by the court indicated that the City could

be liable for the actions of unidentified police officers.

R. 155 at 29-30. The court also indicated that the verdict

form would inquire whether Caballero, Peterson, or one

or more unidentified officers had committed a battery

upon Sanchez. R. 169-1 at 92-93. Moreover, while dis-

cussing the jury instructions as to the section 1983

claims, the court appeared to agree with Sanchez’s

counsel that Caballero and/or Peterson could be

liable for the failure to intervene in the misconduct of

the unnamed officers:

What Mr. Cerda is saying . . . [is] in this case personal

involvement could extend to failing to intervene. So

theoretically, the jury could convict these two

officers of failing to intervene in the conduct of

these unknown officers.

R. 169-1 at 101.

Nonetheless, two developments at the close of the trial

reflected lingering confusion by the parties, if not the

court, as to liability premised on the actions of unidenti-

fied officers.

First, on the last day of the trial, just before closing

arguments were to begin, Sanchez’s counsel announced

that he was voluntarily dismissing the state claims, in-

cluding the respondeat superior claim against the

City. R. 170 at 2. That announcement was followed by

an off-the-record discussion to which we, naturally, are

10 No. 10-3801

not privy. Id. What led counsel to make the decision to

withdraw the state claims is not at all clear, especially

given the court’s prior acknowledgment that the City

could be liable for any wrongful acts (including battery)

that were committed by an unidentified police officer. In

any event, the voluntary nature of the dismissal renders

it unnecessary for us to explore that subject further.

Second, the final jury instruction as to Sanchez’s failure-

to-intervene theory gave the jury the mistaken

impression that neither Caballero nor Peterson could

be held liable under federal law for failing to intervene

in the use of excessive force by another officer unless

one or both of these named officers himself participated

in the use of such force. R. 155 at 28; R. 170 at 74-75.

Specifically, the instruction—adapted from Seventh

Circuit Pattern Civil Jury Instruction No. 7.16—advised

the jury that the plaintiffs must first prove that “[o]ne

or both of the Defendant Officers falsely detained

and/or used excessive force on Plaintiff[.]” R. 155 at 28;

R. 170 at 74-75. Compounding the problem, the instruc-

tion went on to state that Sanchez was also obligated

to prove that “[o]ne of the Defendant Officers knew

that another Defendant was falsely detaining Plaintiff

and was using, or was about to use, excessive force on

the Plaintiff[.]” R. 155 at 28; R. 170 at 75. The instruction

thus foreclosed the possibility of holding Caballero and

Peterson liable for failing to intervene in the wrongdoing

of other, unnamed officers so long as neither of them

participated in that wrongdoing, be it falsely detaining

Sanchez or using excessive force on him. Indeed, no-

where in the instruction are the unnamed officers even

No. 10-3801 11

mentioned; the language we have just quoted refers

instead to the failure to intervene in the wrongdoing

of another defendant (or, as the instruction was read to

the jury “the other defendant,” R. 170 at 75). In sum,

relief on Sanchez’s failure-to-intervene theory was con-

ditioned on a finding that one of the two named

officers falsely detained and/or used excessive force on

Sanchez, and that the other named defendant failed to

intervene in that wrongdoing. The possibility that one

or more unnamed officers might have falsely detained

Sanchez and used excessive force on him, and that Cabal-

lero and/or Peterson failed to stop those officers from

abusing Sanchez, was never communicated to the jury.

Surprisingly, this instruction was actually proposed

by Sanchez’s counsel, and was given over the objection

of the defendants. See R. 155 at 28; R. 169-1 at 90-91; R. 170

at 4. At oral argument, Sanchez’s counsel noted the error

in the failure-to-intervene instruction, but of course

Sanchez is in no position to complain now about an

instruction that his own counsel proposed and that was

given over the objection of the defendants-appellees.

See City of Springfield, Mass. v. Kibbe, 480 U.S. 257, 259, 107

S. Ct. 1114, 1115 (1987) (“We think . . . that there would

be considerable prudential objection to reversing a judg-

ment because of instructions that petitioner accepted,

and indeed itself requested.”); Doe by & through G.S. v.

Johnson, 52 F.3d 1448, 1460 (7th Cir. 1995) (“ ‘in a civil

case, a litigant may not attack an instruction of which

he was the proponent’ ”) (quoting Williams v. Boles, 841

F.2d 181, 184 (7th Cir. 1988)).

12 No. 10-3801

As the foregoing issues have not been preserved

for review, we may conclude this discussion by

making the following points. First, in a section 1983

action alleging that police violated the plaintiff’s

Fourth Amendment rights by subjecting him to excessive

force, a defendant police officer may be held to account

both for his own use of excessive force on the plaintiff,

see, e.g., Phillips v. Community Ins. Corp., 678 F.3d 513, 519-

20 (7th Cir. 2012), as well as his failure to take rea-

sonable steps to attempt to stop the use of excessive

force used by his fellow officers, Lewis v. Downey, 581

F.3d 467, 472 (7th Cir. 2009); Abdullahi v. City of Madison,

423 F.3d 763, 773-74 (7th Cir. 2005); Miller v. Smith, supra,

220 F.3d at 495; Yang v. Hardin, supra, 37 F.3d at 285.

Second, it is possible to hold a named defendant liable

for his failure to intervene vis-à-vis the excessive force

employed by another officer, even if the plaintiff cannot

identify the officer(s) who used excessive force on him.

See Byrd v. Brishke, supra, 466 F.2d at 11 (“the plaintiff

was entitled to have his case against defendants

Moran, Pfeiffer, and Finnin submitted to the jury upon

his having offered testimony that he was beaten by un-

known officers in their presence”); see also Miller, 220

F.3d at 495 (plaintiff’s inability to identify which of

named defendants was his assailant did not preclude

liability on excessive force claim; “[i]f Miller can show

at trial that an officer attacked him while another

officer ignored a realistic opportunity to intervene, he

No. 10-3801 13

can recover”) 3 Third, under Illinois law, a municipality

3

On this point, the fact that Sanchez’s claims are based on the

Fourth Amendment distinguishes this case from Harper v.

Albert, 400 F.3d 1052, 1065-67 & n.19 (7th Cir. 2005). The

majority in Harper deemed a plaintiff’s inability to identify

the prison guard(s) who allegedly beat him to be fatal to a

failure-to-intervene claim against any named defendant

guard who allegedly observed the beating and did nothing

to stop it. Because the plaintiff in Harper was serving a prison

term, his excessive force claim was based not on the Fourth

but the Eighth Amendment. Id. at 1065. To prevail on an

Eighth Amendment claim that he was subject to cruel and

unusual punishment by means of excessive force, a plaintiff

must show that force was employed to maliciously and sadisti-

cally cause him harm rather than in a good faith effort

attempt to maintain or restore discipline. Id. (quoting Hudson

v. McMillian, 503 U.S. 1, 7, 112 S. Ct. 995, 999 (1992)). The

necessity to establish the mens rea of the individual who

used force on the plaintiff, in the majority’s view, compels

a plaintiff to identify who that individual was.

In order for courts to satisfy the mandate to inquire into

the state of mind of prison officials who have allegedly

caused a constitutional violation, see Wilson [v. Seiter], 501

U.S. [294,] at 299, 111 S. Ct. 2321 [(1991)], it is most im-

perative that we are provided with “identified culprits”;

for “[w]ithout minds to examine, we cannot conduct an

individualized inquiry.” K.F.P. [v. Dane County], 110 F.3d

[516,] at 519 [(7th Cir. 1997)].

Harper, 400 F.3d at 1065. Thus, the plaintiff’s inability in Harper

to identify his alleged assailant rendered him unable to

establish that a violation of the Eighth Amendment had oc-

(continued...)

14 No. 10-3801

3

(...continued)

curred, and in turn foreclosed him from arguing that a

named defendant was liable for the failure to intervene in

that violation.

[A]bsent any evidence or even an allegation which could

establish a constitutionally cognizable claim for excessive

force against any of the defendants (e.g., identification of

the individual guard(s) who used excessive force against

him . . .) Harper cannot possibly establish bystander

liability as to Townley [a named defendant] or anyone

else for failure to intervene, and his claim must fail.

Id. at 1066 (citation and footnote omitted). But see id. at 1069-70

(Flaum, J., concurring in part and concurring in the judgment)

(finding plaintiff’s testimony that unnamed guards gratui-

tously inflicted force on him in presence of named defendant

guard sufficient to create jury issue on failure-to-intervene

claim).

By contrast, a Fourth Amendment excessive force claim does

not depend on the subjective purpose for which an officer

employed force against the plaintiff, but rather on whether

the force employed was reasonable. As we explained in

Richman v. Sheahan:

The Eighth Amendment is about punishment, so a punitive

purpose must be shown in an excessive-force case

litigated under that amendment—hence the language

about malice and sadism that we quoted. The issue

under the Fourth Amendment “is ‘whether the officers’

actions [were] objectively reasonable in light of the facts

and circumstances confronting them.’ ” Smith v. Ball State

University, 295 F.3d 763, 770 (7th Cir. 2002), quoting Graham

(continued...)

No. 10-3801 15

may be held liable for battery and other wilful and

wanton tortious acts committed by its police officers in

the course of their duties, even if the plaintiff has not

been able to identify those officers. Williams v. Rodriguez,

supra, 509 F.3d at 405; Gordon v. Degelmann, 29 F.3d 295,

299 (7th Cir. 1994); McCottrell v. City of Chicago, 481

N.E.2d 1058, 1060 (Ill. App. Ct. 1985); 745 Ill. Comp. Stat.

10/2-202. With those points clarified, we may now turn

to the issues that Sanchez has preserved for appeal.

3

(...continued)

v. Connor, 490 U.S. 386, 397, 109 S. Ct. 1865, 104 L. Ed. 2d 443

(1989); see also Saucier v. Katz, 533 U.S. 194, 201-02, 121 S. Ct.

2151, 150 L. Ed. 2d 272 (2001). The officers’ intent in using

force is irrelevant in a Fourth Amendment case. Graham v.

Connor, supra, 490 U.S. at 397, 109 S. Ct. 1865; Phelps v. Coy,

286 F.3d 295, 299-301 (6th Cir. 2002). Only its reasonable-

ness matters—which means whether it was excessive in

the circumstances, because if it was, it was unreasonable—

and reasonableness is the focus of the briefs of both sides

in this case.

512 F.3d 876, 882 (7th Cir. 2008). Thus, in the Fourth Amendment

context, it is not essential that the identity of the individual

officer who applied the force be established. If the plaintiff

can establish that an unknown officer subjected him to

excessive force, he may seek to hold liable other, named

officers who were present, observed the use of excessive

force, had a reasonable opportunity to stop the use of

that force, and failed to intervene. See Miller, 220 F.3d at 495,

and Byrd, 466 F.2d at 11.

16 No. 10-3801

A. Personal Involvement Jury Instruction

At the request of the defendants, the district court gave

the following instruction, adapted from Seventh Circuit

Pattern Civil Jury Instruction No. 7.02, to the jury:

In order to hold Defendant Officers Rick Caballero

or Matthew Peterson individually liable, Plaintiff

must prove by a preponderance of the evidence

that each was personally involved in the conduct

Plaintiff complains about. You may not hold Defen-

dants Caballero or Peterson liable for what other

employees did or did not do.

R. 155 at 33; R. 170 at 75-76. Sanchez objected to this

instruction. He maintained that the instruction was

misleading, to the extent that it could be understood to

suggest that neither Caballero nor Peterson could be

held liable for excessive force perpetrated by another

officer unless he participated in the use of that force.

The district court at first was sympathetic to this

argument, and it invited Sanchez’s counsel to submit

language that would harmonize the personal involve-

ment instruction with the instruction as to Sanchez’s

failure-to-intervene theory of liability. R. 169-1 at 103.

But once defense counsel represented to the court that

one of the plaintiff’s attorneys, who evidently was no

longer involved in the case, previously had agreed to

the wording of the instruction, the court approved the

defense version of the instruction over the plaintiff’s

objection. Id. at 104. When the court addressed the jury

instructions for the final time on the last day of trial,

Sanchez’s counsel reminded the court that it had

No. 10-3801 17

invited the parties to confer overnight regarding any

outstanding disputes, and counsel indicated he was

proposing an additional sentence for the personal in-

volvement instruction that would inform the jury “that

the failure to intervene can[ ] constitute a form of

personal involvement.” R. 170 at 5. The court reiterated

that it had already overruled Sanchez’s objection to

this instruction, and once it confirmed that defense

counsel had not agreed to the additional language

that Sanchez proposed, the court rejected the proposed

modification. Id.

A threshold argument that Sanchez makes on appeal

is that it was inappropriate to give the personal involve-

ment instruction in a case that does not involve super-

visory liability, but this is a nonstarter. It is true that

the personal involvement pattern instruction was

drafted with supervisory liability cases in mind; the

two cases cited in the committee comments to the

pattern instruction, Walker v. Rowe, 791 F.2d 507, 508

(7th Cir. 1986), and Duckworth v. Franzen, 780 F.2d

645, 650 (7th Cir. 1985), both address supervisory liabil-

ity. But supervisory liability is merely one form

of liability which is premised on a defendant’s failure

to intercede in the wrongdoing of another individual

and which thus presents the danger that the jury will

deem the defendant vicariously liable for the actions of

the other person, without regard to whether the de-

fendant actually had notice, opportunity, and the ability

to prevent the other person from inflicting harm. Liability

premised on a defendant police officer’s failure to in-

tervene in the actions of another officer presents the

18 No. 10-3801

same danger, and it is thus within a court’s discre-

tion to give the personal involvement instruction in a

failure-to-intervene case to address that danger. Indeed,

the committee comments themselves envision that the

personal involvement instruction may be given in such

a case: that is why the comments suggest that when

the jury will also be instructed on the failure to

intervene pursuant to Pattern Civil Jury Instruction

No. 7.16, the court consider adding language har-

monizing the two instructions. See Seventh Circuit

Pattern Civil Jury Instruction No. 7.02, committee com-

ments.

Which brings us to Sanchez’s primary argument. The

language that Sanchez proposed adding to the personal

involvement instruction, in order to harmonize it with

the pattern instruction on the failure to intervene, was

appropriate. A layperson is unlikely to understand

that Officer A’s failure to intervene in the wrongdoing

of Officer B, despite A’s knowledge of and ability to

stop the wrongdoing, is a form of personal involvement

in B’s misconduct. Yet, that is the upshot of such cases

as Miller v. Smith, supra, 220 F.3d at 495, and it is the

foundation for the failure-to-intervene theory of liability.

Without language qualifying the personal involvement

instruction, a jury might believe, mistakenly, that so

long as Officer A does not himself use excessive force

on the plaintiff, he can have no liability for Officer B’s

use of excessive force. To address that potential prob-

lem, the committee comments suggest that the failure-to-

intervene instruction be given immediately after the

personal involvement instruction and that the word

No. 10-3801 19

“however” be added as a preface to the failure-to-intervene

instruction. In our view, a modest one-word addition

may not suffice to harmonize the two instructions, as

Pattern Instruction No. 7.16 simply delineates the ele-

ments of a failure-to-intervene claim, without any intro-

ductory language signaling that a defendant’s failure to

intervene in the wrongdoing of another officer qualifies

as a form of personal involvement in that wrongdoing. An

additional sentence explicitly advising the jury that a

defendant officer’s failure to intervene in the wrongful

conduct of another officer, despite a reasonable opportu-

nity do so, can be a form of personal involvement in

that wrongful conduct, would be prudent. The language

that Sanchez’s counsel proposed was in line with our

own suggestion, and the district court would have

done well to entertain it. The fact that a prior attorney

for Sanchez, who was no longer involved in the case,

had agreed to the version of the personal involve-

ment instruction that the court ultimately gave was

irrelevant, particularly in view of the fact that the prob-

lem presented was one of reconciling that instruction

with a separate instruction, and the modification that

Sanchez proposed was consistent with the committee

comments’ own recognition that the two instructions

need additional language to render them consistent

with one another. It is true, of course, that Sanchez’s

attorney had the opportunity to reconcile the two in-

structions in his closing argument to the jury. But

given the obvious tension between the personal involve-

ment instruction and the failure-to-intervene instruc-

tion, the court itself should have explained to the jury

20 No. 10-3801

that a defendant’s failure to intervene can be a form

of personal involvement in the wrongdoing of another

officer. An attorney’s effort to reconcile competing con-

cepts, however cogent, is likely to carry less weight with

a jury, particularly when, as here, the court instructs the

jury after rather than before the attorneys deliver their

closing arguments and the court admonishes the jury to

follow its instructions even if it disagrees with them.

See Seventh Circuit Pattern Civil Jury Instruction No. 1.01;

R. 170 at 65-66; see also R. 170 at 56 (in response to objec-

tion to argument that defense counsel made in closing,

court instructed jury: “You must follow the law in

the instruction[s], and to the extent that the law is mis-

stated by either lawyer here, you should disregard

that and follow the written instructions and my verbal

instructions. You all understand.”).

But ultimately the real problem in this case was the

one posed by the language of the failure-to-intervene

instruction that Sanchez’s counsel proposed and that

the court gave over defense objection. As we have

noted, the modified language of the failure-to-intervene

instruction erroneously advised the jury that in order

to hold Caballero or Peterson liable for the failure to

intervene in the misconduct of another officer, one or

both of the named officers themselves must have partici-

pated in that misconduct. Additionally, the instruction

did not even mention the other, unnamed officers; the

instruction was premised entirely on the use of force

by at least one of the named defendants. Whatever

potential for misunderstanding that may have been

posed by the personal involvement instruction was

No. 10-3801 21

thus eclipsed by the flawed language of the failure-to-

intervene instruction. The latter instruction as given

expressly precluded the jury from holding Caballero

and Peterson liable for failing to stop the false detention

and/or battering of Sanchez unless one or both of

the defendants were themselves perpetrators of those

wrongful acts. Any modification to the wording of the

personal involvement instruction thus would have

done Sanchez no good whatsoever in view of the hope-

lessly defective language of the failure-to-intervene in-

struction.

In short, any error in the court’s refusal to embrace

the language that Sanchez posed to harmonize the

personal involvement instruction with the failure-to-

intervene instruction was harmless. The real fault lies

with the failure-to-intervene instruction itself, which

was proposed by Sanchez. Having been the proponent

of the flawed failure-to-intervene instruction, Sanchez

is foreclosed from objecting to that instruction now.

B. Testimony of Investigator Brian Killen

In response to a complaint filed by Sanchez, Chicago’s

Independent Police Review Authority (“IPRA”) conducted

an investigation of the April 5, 2008 incident and cleared

Caballero and Peterson of wrongdoing. Prior to trial, the

district court granted Sanchez’s motion in limine to

exclude any testimony about the IPRA’s findings. R. 179

at 25-26. At trial, however, the court permitted the City

to elicit testimony from IPRA investigator Brian Killen

that he had looked into an allegation that Caballero

22 No. 10-3801

had threatened to plant drugs on Sanchez if he did not

withdraw his complaint to the IPRA. The threat was

reportedly made to Sanchez’s brother José. Killen

testified that he spoke with José, who denied

that Caballero made such a statement to him or that

he had reported such a threat to his brother. Over

Sanchez’s objection, Killen was also permitted to testify

more generally that he found no evidence to support

the allegation that Caballero had threatened Sanchez:

“[D]id you find any evidence to support this alleged

threat to Efrain?” defense counsel inquired. “No sir,”

Killen answered. R. 169-1 at 38.

From the dubious premise that Killen testified as an

expert, Sanchez argues that the district court erred in

admitting his testimony because it was not properly

disclosed in advance of the trial as required by Federal

Rule of Civil Procedure 26(a)(2) and therefore was

barred by Rule 37(c)(1). He argues secondarily that

Killen’s testimony improperly intruded upon the jury’s

determination as to whether the defendants violated

his civil rights.

The district court did not abuse its discretion in

allowing this limited testimony. It is important to empha-

size first that Killen said nothing about the IPRA’s con-

clusion as to the April 5, 2008 incident; his testimony

was confined to the collateral allegation that Caballero

had threatened to retaliate against Sanchez if Sanchez

did not withdraw his complaint. So the testimony

did not invade the jury’s province to decide what

occurred on April 5, 2008. Second, Killen did not testify

No. 10-3801 23

as an expert. His testimony was limited to what he

was able to ascertain as a result of his own investiga-

tion into a particular allegation. Rather than opining,

based on a body of specialized knowledge and ex-

perience, whether Caballero made a threat or whether

Sanchez was dissembling, Killen simply reported that

he found no evidence to support the allegation. See, e.g.,

United States v. Christian, 673 F.3d 702, 709 (7th Cir. 2012)

(law enforcement official is giving lay opinion if he

is testifying to what he observed or to facts derived

from his investigation); DeBiasio v. Ill. Cent. R.R., 52 F.3d

678, 686 (7th Cir. 1995) (witness is not expert to extent

he testifies to matters within his personal knowledge).

Moreover, Killen’s testimony was offered for the pur-

pose of impeaching Sanchez’s credibility, so it was

not subject to the disclosure rules governing expert testi-

mony. Rule 26(a)(3)(A); Hammel v. Eau Galle Cheese

Factory, 407 F.3d 852, 869 (7th Cir. 2005) (citing DeBiasio,

52 F.3d at 686). Third, the objected-to portion of

Killen’s testimony could not have prejudiced Sanchez in

any meaningful way. Sanchez did not object to Killen’s

testimony that José, when questioned about Cabal-

lero’s alleged threat, denied having heard a threat by

Caballero or reporting such a threat to his brother. R. 169-1

at 30, 32, 33. That was the most damaging portion of

Killen’s testimony, as it directly refuted what Sanchez

had reported to the IPRA about the threat. Killen’s addi-

tional testimony that he otherwise found no evidence

to support the allegation that a threat had been made,

was essentially punctuation. To the extent Killen’s testi-

mony necessarily disclosed the fact of the IPRA’s investi-

24 No. 10-3801

gation into the April 5 incident, it is worth pointing

out that Sanchez’s own counsel had already elicited

testimony in the case about the IPRA investigation and

had introduced materials from that investigation. See, e.g.,

R. 166-1 at 107; R. 167-1 at 17-20; see also R. 166-1 at 6-7

(plaintiff’s opening statement).

C. Prior Arrests

Over Sanchez’s objection, the district court permit-

ted the defense to establish, on cross-examination of

Sanchez, that he had been arrested on several occasions

in the ten years prior to the trial; the court did not

allow evidence concerning Sanchez’s prior convictions.

R. 167-1 at 91-92. The district court deemed Sanchez’s

arrest history relevant in view of his testimony, on

direct examination, that he had suffered emotional

distress as a result of the way in which he was treated

in the April 5 encounter. Sanchez testified that he had

become afraid of the police, that he had nightmares

about them, that he did not trust them, and became

nervous when he saw them. Id. at 78-80. In the court’s

view, that testimony gave rise to an inaccurate impres-

sion that Sanchez had no real prior experience with

law enforcement officials; and “common sense” suggested

that an individual who had many prior interactions

with the police would be less likely to suffer emotional

distress from an encounter like the one Sanchez described

than an individual who had never before had contact

with the police. Id. at 85, 86, 88-91. However, in order

to limit the prejudice that might result from dis-

No. 10-3801 25

closure of Sanchez’s arrest record, which was lengthy

(reportedly, Sanchez had a record of more than thirty

arrests in the ten years prior to trial), the court directed

defense counsel to ask Sanchez only whether he had

“several” prior arrests in those years. Id. at 92. Further-

more, immediately after Sanchez answered “yes” to this

question, id. at 96, the court instructed the jury that it

could consider this information “only insofar as it bears

on Mr. Sanchez’s testimony that he suffered extreme

emotional distress . . . because of the actions on the night

of April 5th, 2008, for that limited purpose only,” id.

The court then asked the jury members whether they

understood the court’s instruction, and all indicated

that they did. Id.

At the conclusion of the trial, in his closing argument

to the jury, defense counsel returned to the subject of

Sanchez’s prior arrests, and based on that history

argued that it was unlikely Sanchez had suffered

genuine emotional distress:

Is this really [a] babe in the woods? This innocent

who has been traumatized? He’s been arrested more

times than you can shake a stick at.

R. 170 at 48. Sanchez’s counsel immediately objected to

this characterization of Sanchez’s arrest record. The

court sustained the objection and instructed the jury to

disregard the statement, reminding the jurors, “You’ve

heard the evidence. He was arrested several times.” Id.

Sanchez argues that the district court was wrong to

allow evidence concerning his prior arrests. He reasons

that his arrest history had little if any bearing on the

26 No. 10-3801

degree of emotional distress he suffered as a result of

the April 5, 2008 encounter, given that his claim was that

he was not simply wrongfully stopped and detained,

but beaten by police officers. He reasons further that

defense counsel’s intemperate remark in closing both

mischaracterized and gave emphasis to this evidence,

magnifying its prejudicial effect.

Reasonable people might disagree as to the probative

worth of Sanchez’s arrest history. Given Sanchez’s al-

legation that he was manhandled (and worse) by the

officers who dealt with him on April 5, the fact that

he had been arrested on multiple occasions before—

presumably without excessive force—arguably does not

undermine his claim of trauma. There is, after all, a mate-

rial difference between being arrested and being sub-

jected to excessive force in the course of that arrest.

On the other hand, Sanchez’s claim was not limited to

the alleged use of excessive force; he also alleged that

he was falsely detained. Had the jury rejected his al-

legation that he was beaten, but agreed that he was

falsely detained, his prior arrest history arguably

might have been relevant to the jury’s assessment of

any emotional distress he suffered as a result of the

improper detention.

In any case, we have a difficult time discerning how

Sanchez was materially prejudiced by the disclosure of

his prior arrests. The court, as we have noted, limited the

evidence to the fact that Sanchez had “several” prior

arrests, and gave a limiting instruction admonishing

the jury that it was to consider this evidence only insofar

No. 10-3801 27

as it shed light on the extent of any emotional harm

he experienced. Defense counsel indeed was out of line

when he stated in closing that Sanchez had more con-

victions “than you can shake a stick at,” but Judge

Darrah both sustained Sanchez’s objection and reminded

the jury what the actual evidence was as to the extent

of Sanchez’s arrest history. Thus, even if we were to

assume that the court erred in allowing limited evidence

of Sanchez’s arrest record, the error was harmless.

D. Gang-related Testimony

Officers Caballero and Peterson were members of a

gang unit, but it was agreed among all parties that

their decision to stop and question the Sanchez brothers

on April 5, 2008, was not based on any suspicion that

either of the brothers was engaged in gang-related

activity. See R. 167-1 at 5; R. 169 at 14, 62, 65-66. During

pretrial discovery, it emerged that Sanchez did have

some history of gang affiliation. R. 137. In advance of

the trial, Sanchez moved to exclude any reference to

gang activity, and the district court granted that motion

to the extent of excluding any reference to Sanchez’s

gang activity. R. 179 at 18. Sanchez contends that the

defendants nonetheless went on to mention gangs fre-

quently during the trial, with one witness (Officer

Reynaldo Serrato) testifying that José Sanchez’s home

was known for having noise disturbances and gang-

related parties. R. 169 at 5-6. The district court sustained

Sanchez’s objection to this particular testimony, but in

Sanchez’s view the bell could not be unrung; and he

28 No. 10-3801

contends that when defense counsel remarked in closing

argument that Sanchez had more arrests “than you

can shake a stick at,” the jury must have surmised

that Sanchez “was a gang banger who should not be

awarded any damages.” Sanchez Br. 27.

This argument makes too much of very little testi-

mony connecting Sanchez with gang activity. The word

“gang” was uttered on a number of occasions during

the trial, but in the great majority of instances in the

context of identifying the individual defendants’ assign-

ment within the Chicago police force. This was not

prohibited by the district court’s in limine ruling, and

plaintiff’s counsel was equally responsible with defense

counsel in eliciting this information. See, e.g., R. 166-1

at 3, 70, 78; R. 167-1 at 3, 4-5. As evidence of an officer’s

experience, assignment, and qualifications, the mere

mention that the officer is a gang specialist or assigned

to a gang unit typically is appropriate and harmless. See,

e.g., Anderson v. Sternes, 243 F.3d 1049, 1053-54 (7th

Cir. 2001). Indeed, these references were not objected

to by Sanchez. The only potentially problematic refer-

ence was Officer Serrato’s reference to gang-related

parties occurring at or near José’s home; but the

district court sustained the objection to that remark and

instructed the jury to disregard it. We presume that the

jury follows such instructions. Wilson v. Groaning, 25

F.3d 581, 587 (7th Cir. 1994) (coll. cases). As Sanchez

himself concedes, “[a]t trial, there was no suggestion

from anyone that Mr. Sanchez was engaged in gang

activity at the time of the incident, or that the officers’

No. 10-3801 29

treatment of him was based on gang affiliation.” Sanchez

Br. 27. In this context, Serrato’s isolated remark,

which the court instructed the jury to disregard, was not

sufficiently serious to have prejudiced Sanchez.

E. Prior Fight Between Sanchez Brothers

Over objection, the district court allowed the defense

to ask Sanchez if he had fought with his brother prior

to April 5, 2008, and, more specifically, whether Caballero

had ever broken up a fight between them prior to April 5.

Sanchez denied that they had ever fought, be it on

April 5 or on any other occasion. R. 167 at 38-39. The

defense posed that question to Sanchez in anticipation

of Caballero’s testimony that he had witnessed a fight

between the brothers on an occasion prior to the April 5

incident. Subsequently, when Caballero was on the

witness stand, Sanchez’s counsel asked him why he

had not indicated on the contact card he completed

after the April 5 incident that Sanchez and his brother

were fighting. Caballero answered:

In this case Efrain and his brother were fighting.

I have seen them fighting before, seen Efrain

numerous times, and I’ve let him go. He’s begged me

to let him go. And at this point I did the same thing.

R. 167-1 at 30. Caballero was then asked (by plaintiff’s

counsel) about the prior fight Caballero claimed to have

witnessed, and Caballero said that he previously had

encountered Sanchez and his brother engaged in a

shoving match. “We broke them up and they went on their

30 No. 10-3801

way,” Caballero explained. Id. at 31. Defense counsel

then explored the subject further when Caballero was re-

called in the defense case. R. 169 at 64-65. Sanchez

argues that the court erred in permitting the defense to

open this subject by allowing the initial questions of

Sanchez, which in turn led to Caballero’s testimony

about the prior shoving match.

The court allowed this evidence as relevant to explain

why Caballero and Peterson did not arrest Sanchez or

his brother on April 5 nor document a fight between

the two brothers on the contact cards they filled out

after the incident, despite their testimony that they had

observed the brothers in a physical altercation and that

Sanchez was bleeding as a result of the fight. This was

a subject that Sanchez’s counsel had touched upon

in his opening statement to the jury and on which he

had questioned both officers. R. 166-1 at 5-6; id. at 74-75,

88, 90-91; R. 167-1 at 25, 26-27. Clearly one inference

that Sanchez wanted the jury to draw was that the fight

was a fabrication; otherwise, the logic goes, the officers

surely would have documented the fight if not arrested

one or both of the brothers.

Sanchez’s concern is that the jury likely relied on

the prior fight not as evidence of what motivated the

defendants not to arrest him or his brother on April 5

if they had in fact been fighting as the defense claimed,

but rather as confirmation of the defense account

that there was a fight between the brothers on April 5.

In other words, Sanchez posits that this testimony con-

stituted proof of a prior bad act (the fight), offered to

No. 10-3801 31

show a character trait (fighting, especially with one’s

brother) with which Sanchez was acting in conformity

on the night in question. See Fed. R. Evid. 404(a)(1).

Because this evidence was at least minimally relevant

to explain why the defendants might have decided legiti-

mately not to arrest the Sanchez brothers on April 5,

and thus had a bearing on something other than their

propensity to fight, it was within the district court’s

discretion to admit the evidence. In any event, we find

it difficult to believe that the testimony prejudiced

Sanchez. The testimony that the brothers had fought

before came from the same, self-interested source (Cabal-

lero) who asserted that the brothers were fighting on

April 5. The jury was thus unlikely to rely on the testi-

mony regarding the prior fight as independent verifica-

tion of Caballero’s disputed contention that the brothers

were involved in a fight on April 5. Moreover, coming

to blows with one’s sibling, although it may technically

be illegal, is an experience known to, if not shared by,

many individuals, and the disclosure of such a history

is not inherently prejudicial as would be the disclosure

of other prior crimes. Caballero himself remarked during

his testimony, “[M]yself, I fought with every one of my

brothers, so I know how that goes, so I didn’t think it

was a reason to lock anybody up.” R. 169 at 72; see

also R. 167-1 at 30 (“I fought my brothers hundreds of

times . . . .”).

F. Cumulative Effect of Disputed Evidentiary Rulings

Sanchez has argued that even if any of the evidentiary

rulings that he contests were not prejudicial individually,

32 No. 10-3801

together they deprived him of a fair trial. We have con-

sidered this argument but, upon review of the record,

find it to be without merit.4

III.

For the foregoing reasons, we A FFIRM the judgment of

the district court.

4

In his statement of facts, Sanchez has suggested that the

district court erred in admitting his original and amended

complaints into evidence for impeachment purposes over his

objection. Sanchez Br. 15. However, he has not developed

this argument in the body of his opening brief or, for that

matter, in his reply brief. We consider the argument waived

for lack of development. E.g., Trentadue v. Redmon, 619

F.3d 648, 654 (7th Cir. 2010).

11-2-12