Brown v. City of Chicago

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-4265

A RTHUR B ROWN,

Plaintiff-Appellant,

v.

C ITY OF C HICAGO, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04 C 8134—John W. Darrah, Judge.

A RGUED O CTOBER 8, 2009—D ECIDED M ARCH 30, 2010

Before E ASTERBROOK, Chief Judge, and M ANION and

T INDER, Circuit Judges.

M ANION, Circuit Judge. Arthur Brown sued Officer

Duane Blackman under 42 U.S.C. § 1983 for excessive

force, alleging Officer Blackman shot him without justifi-

cation. The district court granted Officer Blackman sum-

mary judgment, concluding that because Brown had

been convicted of aggravated assault, aggravated

unlawful use of a weapon, and unlawful possession of

2 No. 08-4265

a weapon by a felon based on his encounter with Officer

Blackman, Brown’s current suit was barred by collateral

estoppel. Brown appeals. We affirm.

I.

On April 24, 2001, Officer Duane Blackman was patrol-

ling the Cabrini-Green housing project in Chicago, Illinois,

with his partner, Officer Aaron Long. Both officers

were wearing plain clothes. During the patrol Officer

Blackman spotted a man, later identified as Lazerek

Grant, engaged in a suspected drug transaction with the

passenger of an automobile. Another man, later identified

as Jeremiah Brooks, stood near Grant during the transac-

tion. After observing the drug deal, the officers parked

their car and got out to investigate. While approaching

Grant and Brooks, the officers witnessed a second similar

transaction. When Grant and Brooks saw the officers

approaching with their weapons drawn, they took off

running. Officer Blackman chased Brooks and Officer

Long went after Grant. The chase led Officer Blackman

into a nearby parking lot, where he saw the plaintiff in

this case, Arthur Brown. Brown was not involved in the

original drug deal, but according to Officer Blackman,

Brown was holding a black gun and refused to drop it

even though Officer Blackman displayed his police

badge and ordered him to do so. Officer Blackman main-

tains that Brown instead began walking backwards

while pointing the gun at him. Officer Blackman claims

he continued to shout for Brown to drop the weapon but

when Brown failed to comply, Officer Blackman shot

him, striking him several times. After Brown fell to the

No. 08-4265 3

ground, Officer Blackman claims he pried Brown’s

fingers off the gun and took possession of the weapon.

Brooks and Officer Long would later confirm that they

saw Brown point a weapon toward Officer Blackman.

Brown had a different version of the events: Brown

claimed that he did not have a gun, that Officer Blackman

shot him in the back, and that after shooting him, Officer

Blackman placed a “drop” gun in his hand. In support

of his version, Brown pointed to a nurse’s statement that

he had stitches in the back of his head (although the

nurse admits not knowing where the bullet entry wound

was). Brown also pointed to a statement from Danyiel

Larkins who claimed he observed the incident. Larkins

maintained that Brown did not have a gun; that Officer

Blackman shot Brown in the back after Brown ran away

from the officer; and that after shooting Brown, Officer

Blackman placed a gun in Brown’s hand. Larkins

claimed he did not know Brown before witnessing this

incident and that when he attempted to tell police what

he saw the night of the incident, he was told to keep his

mouth shut unless he wanted to be arrested too. Brown

also noted that the gun which was supposedly recovered

from his possession originally belonged to another

police officer, Officer Rickey Fobbs, and that while

Officer Fobbs reported it stolen a few years before the

shooting, Brown posited that the weapon was not really

stolen, but instead became the drop weapon used by

Officer Blackman.

A state court jury rejected Brown’s version of events by

convicting him of multiple counts of aggravated assault,

aggravated unlawful use of a weapon, and unlawful

4 No. 08-4265

possession of a weapon by a felon based on his encounter

with Officer Blackman. Brown appealed his state court

conviction. The state appellate court affirmed and the

Illinois Supreme Court denied Brown’s petition for

review. Brown then filed a habeas corpus petition in

federal court, but the district court dismissed that suit

because Brown was no longer in custody. Brown then

filed this § 1983 suit against Officer Blackman and others.

Brown’s complaint alleged multiple theories against

multiple defendants, but the only remaining claim at

issue is Brown’s excessive force claim against Officer

Blackman. In his § 1983 suit, Brown reiterated his

version of events, claiming that Officer Blackman shot

him without justification and thus used excessive force

in violation of his constitutional rights. The district court

granted Officer Blackman summary judgment, con-

cluding that Brown’s excessive force claim was barred

by collateral estoppel. Brown appeals.

II.

On appeal, Brown argues that the district court erred in

holding that his § 1983 claim was barred by collateral

estoppel. Whether a plaintiff’s § 1983 claim is barred by

a state court conviction is determined by the state’s rules

of collateral estoppel. See 28 U.S.C. § 1738; Sornberger v.

City of Knoxville, 434 F.3d 1006, 1020 n. 9 (7th Cir. 2006).

Under Illinois’s issue preclusion law, an issue litigated

in a prior proceeding may not be relitigated if (1) the

issue decided in the prior adjudication is identical

with the one presented in the suit in question; (2) there

was a final judgment on the merits in the prior ad-

No. 08-4265 5

judication; and (3) the party against whom estoppel is

asserted was a party or in privity with a party to the

prior adjudication.

Dunlap v. Nestle USA, Inc., 431 F.3d 1015, 1018 (7th Cir.

2005) (citing Herzog v. Lexington Township, 657 N.E.2d

926, 929-30 (Ill. 1995)). Moreover, under Illinois law, a

criminal conviction precludes relitigation of issues that

were necessarily decided in the criminal proceedings.

Am. Family Mut. Ins. Co. v. Savickas, 739 N.E.2d 445, 449-51

(Ill. 2000). As the Illinois Supreme Court explained in

Savickas, in a criminal case:

[T]he State must prove the defendant guilty beyond a

reasonable doubt by a unanimous verdict, a greater

burden than that faced by any civil litigant. The defen-

dant may remain silent and the State is prohibited

from commenting on his silence. Moreover, the defen-

dant has the right to counsel and to a record paid for

by the State on appeal.

Id. at 450. These differences, the Illinois Supreme Court

found, militate in favor of giving the same preclusive

effect to a criminal conviction as an ordinary civil judg-

ment. Id.

Brown admits that all of the elements of collateral

estoppel exist in this case, see Appellant Brief at 22, and

for good reason: Brown’s conviction in state court for

multiple counts of aggravated assault, aggravated unlaw-

ful use of a weapon, and unlawful possession of a

weapon by a felon based on his encounter with Officer

Blackman necessarily determined that Brown possessed

a weapon and pointed it at Officer Blackman. None-

6 No. 08-4265

theless, Brown argues that collateral estoppel does not

bar his excessive force claim for two reasons: first,

because he was denied a full and fair hearing; and second,

because new evidence calls into question his state court

conviction, thus making application of collateral estoppel

unfair.

Under Illinois law, collateral estoppel does not bar

relitigation of an issue if the party against whom the

doctrine is asserted was denied a full and fair oppor-

tunity to litigate the question in the previous case. Rekhi

v. Wildwood Ind., Inc., 61 F.3d 1313, 1319 (7th Cir. 1995)

(explaining that under Illinois law a judicial finding will

be given collateral estoppel effect only if reached after a

full and fair hearing). Brown claims he was denied a

full and fair hearing for three reasons. First, Brown claims

he was denied a full and fair hearing because the state

trial court limited his questioning of Officer Fobbs about

the circumstances of the alleged theft of his gun (which

was the gun Officer Blackman claimed he recovered

from Brown). Brown’s theory was that Officer Fobbs’s

gun was not really stolen, but rather that Officer Fobbs

had to dispose of the weapon because he had used it in

an off-duty shooting that occurred when Officer Fobbs

was involved in a high-speed chase with a friend who

was a convicted felon and gang member. Brown wanted

to use this evidence to support his theory that Officer

Fobbs supplied the weapon Officer Blackman would

later use as a drop weapon. The state trial court refused

to allow Brown to present this evidence because Brown

did not have any evidence indicating that Officer Fobbs

and Officer Blackman knew each other prior to the time

of the shooting. The state court’s refusal to allow this

No. 08-4265 7

evidence did not deny Brown a full and fair hearing.

Rather, a state court could reasonably conclude that this

evidence should be excluded because any probative

value was slight, given there was no evidence that

before the shooting they knew each other.1 In addition,

the danger of unfair prejudice was great since it would

cast aspersions on the character of one of the govern-

ment witnesses by alleging he was friends with a gang

member and felon. See United States v. Alviar, 573 F.3d

526, 536 (7th Cir. 2009) (stating that “[w]e have recog-

nized there is substantial risk of unfair prejudice

attached to gang affiliation evidence . . . .”). There are

circumstances under which it is proper to provide

evidence of gang affiliations. Id. However, in this case,

1

Brown claims on appeal that there was circumstantial evi-

dence that Officers Fobbs and Blackman knew each other.

Specifically, Brown points to evidence that Officer Fobbs was

assigned to the 18th District Police Station, which was located

only blocks from Cabrini-Green where Officer Blackman

patrolled, and that officers from the two squads often inter-

acted. Brown also points to the fact that Officer Fobbs was

later transferred to Officer Blackman’s unit and they then

became friends. This evidence, however, in no way shows

that the two knew each other at the time of the incident, much

less three years earlier when the gun was stolen. Brown also

points to Officer Blackman’s testimony at trial that he met

Officer Fobbs in “2000 maybe.” The “maybe” is significant,

as Officer Blackman immediately clarified that it was not

until 2001 after the incident that he met Officer Fobbs. Thus,

this testimony was also insufficient to show that Officer

Blackman and Officer Fobbs knew each other at the time of

the incident.

8 No. 08-4265

since there was no evidence that Officer Blackman and

Officer Fobbs knew each other at or before the time of

the April 24, 2001, shooting (much less that they knew

each other three years earlier at the time of Officer Fobbs’s

alleged connection with the gang member), the exclu-

sion of that testimony in Brown’s criminal trial did not

deny Brown a full and fair hearing.

Second, Brown argues that he was denied a full and fair

hearing because he was not allowed to question Officer

Blackman and his partner, Officer Long, about their

“conspiracy” while on duty to switch price tags on mer-

chandise at Sak’s Fifth Avenue. The state trial court,

however, allowed Brown to present evidence that a

complaint was lodged against Officers Blackman and

Long for a December 24, 2002, incident, that the Internal

Affairs commission had reviewed and sustained those

complaints, and that as a result of the incident both

officers had been stripped of their police powers and had

been reassigned to a non-emergency call center in an

administrative capacity. Additionally, the state trial court

allowed Brown to inquire regarding the total number of

complaints logged against both Officer Blackman and

Officer Long. This evidence was more than sufficient to

inform the jury that Officers Blackman and Long had

engaged in professional misconduct together; omitting

the details of the price-tag scheme did not deprive

Brown of a full and fair hearing.2

2

On appeal, Brown argues that the limits on his questioning

of the officers violated his Sixth Amendment right to con-

(continued...)

No. 08-4265 9

Third, and finally, Brown claims that he was denied a

full and fair hearing because the prosecutor said that

“they” (meaning Brown and his attorney) had “concocted”

a conspiracy so that “they” could “cash in” against the

City of Chicago in a civil action against the “officers” and

that “they” were “trying to ruin the lives and careers of

Chicago policemen who risk their lives every day.” On

appeal from his criminal conviction, the state appellate

court held that these remarks were improper but did not

require reversal. Similarly, here, while the remarks

were improper because they attacked Brown’s attorney,

the error was not so great as to deny Brown a full and

fair hearing.

In addition to claiming that he was denied a full

and fair hearing, Brown also argues that it would be

2

(...continued)

frontation which violated his due process rights, thereby

denying him a full and fair hearing as required under Illinois

law for the doctrine of collateral estoppel to apply. We

need not decide whether the constitutional mandates gov-

erning criminal trials must be met in order for the doctrine

of collateral estoppel to bar a subsequent civil case because

there was no Confrontation Clause problem in the first in-

stance. “The right to cross-examine is not unlimited; the Con-

frontation Clause guarantees only effective cross-examination,

not cross-examination of any type sought by the defendant.”

United States v. Williamson, 202 F.3d 974, 977 (7th Cir. 2000)

(citing Delaware v. Fensterer, 474 U.S. 15, 20 (1985)). Brown

had ample opportunity to effectively cross-examine the

officers in his criminal trial, and thus his Confrontation

Clause rights were not violated.

10 No. 08-4265

inequitable to apply the doctrine of collateral estoppel

because new evidence calls into question his prior

criminal conviction. Under Illinois law, the doctrine of

collateral estoppel does not apply if it results in an injus-

tice. Jones v. City of Alton, Ill., 757 F.2d 878, 885 (7th Cir.

1985) (citing Fred Olson Motor Serv. v. Container Corp. of

America, 401 N.E.2d 1098 (Ill. App. Ct. 1980)).

In arguing that it would be inequitable to apply

collateral estoppel, Brown first claims that since his

criminal trial he has obtained evidence that Brooks was

actually engaged in drug transactions with Grant at the

time of the incident and was not merely an innocent

bystander. Specifically, Brown points to Brooks’s deposi-

tion testimony provided in this case, wherein Brooks

stated that he had handed money to Grant or drugs to

customers. In his deposition, though, Brooks also main-

tained that he was merely “hanging out with my god

brother” who was dealing drugs and that he (Brooks)

wasn’t “transacting drug deals.” In Brown’s state criminal

trial, Brooks testified that he “wasn’t doing anything . . .

except talking to Lazerek Grant.” Brown claims this

deposition testimony now calls into question Brooks’s

previous testimony and also posits that the prosecutor

concealed the actual facts of Brooks’s involvement in the

drug transaction. Brown argues that it would be unfair

to bar his current civil case in light of this discrepancy.

Brooks’s deposition testimony sheds more light on his

conduct on the night of the shooting. But in the state

criminal trial, Brown’s attorney argued to the jury that

Brooks was involved in the drug deal and was not

charged, stating in closing argument: “Jeremiah Brooks

No. 08-4265 11

is the most important witness in this case[.] A guy who

gets caught dealing drugs and is told you sign this state-

ment you’ll get out of jail. That’s their most important

witness?” In fact, when the government objected to this

statement, arguing it was “not based on the evidence,” the

trial judge responded “[t]he jury has heard the evidence.

They will decide what inferences to be drawn.” The

jury nonetheless convicted Brown. Given the cross-exami-

nation and closing argument, coupled with the fact that

Brooks continues to maintain that he “wasn’t transacting

drug deals,” we do not see the discrepancy in the testi-

mony being so great as to create an injustice.

Brown further claims he obtained new evidence

during the deposition of Officer Fobbs which shows that

Officers Fobbs and Blackman knew each other. The evi-

dence Brown points to, however, is merely testimony

by Officer Fobbs that even though he was not assigned

to Cabrini-Green, he responded to calls there on a daily

basis and officers from his police station often inter-

acted with officers assigned to Cabrini-Green. This

“new” evidence, however, does not establish an acquain-

tanceship between the two officers and therefore does not

serve as a basis to ignore the preclusive effect of the

state court conviction.

III.

Brown and Officer Blackman maintain two dia-

metrically opposed stories of the April 2001 shooting. A

state court criminal jury, however, believed Officer

Blackman’s version following a full and fair trial and

12 No. 08-4265

convicted Brown. This conviction conclusively estab-

lished that Brown pointed a weapon at Officer

Blackman. Accordingly, under Illinois collateral estoppel

law, Brown’s § 1983 claim against Officer Blackman

for excessive force is barred. The judgment of the

district court is therefore A FFIRMED.

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