147 F.3d 577 (7th Cir. 1998), 96-4201, Jenkins v. Keating

Docket Nº:96-4201.
Citation:147 F.3d 577
Party Name:Johnny JENKINS and Middie Jackson, Plaintiffs-Appellants, v. Patrick KEATING and Michael Murray, Defendants-Appellees.
Case Date:June 16, 1998
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 577

147 F.3d 577 (7th Cir. 1998)

Johnny JENKINS and Middie Jackson, Plaintiffs-Appellants,

v.

Patrick KEATING and Michael Murray, Defendants-Appellees.

No. 96-4201.

United States Court of Appeals, Seventh Circuit

June 16, 1998

Argued Oct. 30, 1997.

Page 578

Armand L. Andry (argued), Oak Park, IL, for Plaintiffs-Appellants.

Lawrence Rosenthal, Mardell Nereim (argued), Benna R. Solomon, Susan S. Sher, Office of the Corporation Counsel, Chicago, IL, for Defendants-Appellees.

Before CUDAHY, COFFEY and MANION, Circuit Judges.

COFFEY, Circuit Judge.

The plaintiffs-appellants, Johnny Jenkins and Middie Jackson, appeal from the district court's entry of summary judgment on Jackson's 42 U.S.C. § 1983 claim against Officers Patrick Keating and Michael Murray, defendants-appellees herein, as well as its decision to grant the defendants' motion in limine to exclude the testimony of one of Jenkins' witnesses at his § 1983 trial. We affirm.

I. BACKGROUND

In November of 1990, Johnny Jenkins was temporarily relieved from his position as a Chicago police officer because of a broken finger on his right hand. On December 1 of that year, while still off-duty, he drove his

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mother, Middie Jackson, to an apartment building that she owned, located at 4845 South Damen Avenue in Chicago, Illinois. Jackson was interested in seeing a tenant in the building, Ora Sharp, in order that she might retrieve some keys in Sharp's possession. Upon their arrival at the apartment, a dispute arose between Sharp and Jackson, and Sharp struck Jenkins with a frying pan. Both Jackson and Jenkins then left the premises. Meanwhile, the police received a call about a man in possession of a gun at the 4845 South Damen Avenue address. Officer John Rossi and his partner responded to the call. Sharp informed the officers that a male, armed with a handgun, had battered her. Officer Patrick Keating arrived upon the scene shortly thereafter. Rossi and his partner left to search the area for the battery suspect. Officer Keating remained to take a report from the complaining witness, Sharp. While he was speaking with her, she pointed over his shoulder and stated, "here they come." Keating turned and saw Jenkins and Jackson approaching the building.

What happened next is a bit unclear. Officer Keating claims that he repeatedly ordered Jenkins to remove his hands from his pockets, but he did not do so. Instead, Jenkins continued to walk towards him with his hands in his pockets. Keating drew his sidearm for fear that Jenkins had a gun, and once again ordered Jenkins to remove his hand from his pockets. Jenkins acquiesced. However, as Officer Keating began to reholster his weapon, Jenkins struck him with his fists. When Keating informed Jenkins that he was under arrest, Jenkins hit him again. A struggle ensued as Jenkins continued to resist arrest and punch Officer Keating. During the course of the altercation, Keating struck Jenkins. He also radioed in a "101," which is a call signaling that an officer is in distress and requires immediate assistance.

Two officers, Michael Murray and Thomas Coughlin, responded to the call for assistance. Upon their arrival at the scene, they saw Jenkins holding Officer Keating against a fence and punching him. Officers Murray and Coughlin pulled Jenkins off Keating. Jenkins continued to throw punches and resist arrest before being handcuffed and conveyed to the police station. Officer Murray later found a gun in Jenkins' automobile while conducting a post-arrest search of the vehicle.

Jenkins' version of the events in question is somewhat different. He alleges that, as he approached Officer Keating and Sharp, two bystanders, Perry and Kevin Coleman, immediately started beating him. Keating then radioed for assistance and joined in with the Colemans in punching him, Jenkins. Jenkins contends that Officer Murray arrived shortly thereafter and battered him as well. He further claims that Murray kicked him in the face and that, after being handcuffed, Keating kneed him in the face.

Lieutenant Henry Hoffenkamp, a supervising officer, was then called to the scene. At this time, a witness to the altercation, Jessica Cox, informed Hoffenkamp that she had observed Jackson pointing a can of mace at Keating and other individuals during the incident, and that she (Cox) physically knocked the can from Jackson's hand before the mace could be sprayed. A protective patdown search of Jackson's outer clothing revealed that she was in possession of a can of mace. Lieutenant Hoffenkamp ordered that Jackson be placed under arrest for aggravated assault based on Cox's report that Jackson had attempted to spray mace at several individuals, including Officer Keating, and the corroborating fact that a can of mace was discovered in Jackson's possession minutes after the altercation. Officer Keating subsequently filed the criminal complaint against her.

On March 22, 1991, plaintiffs Jenkins and Jackson filed a complaint in district court, alleging numerous federal and state claims against Officer Keating and other known and unknown officers. Because criminal charges were pending against Jenkins for battery and resisting arrest, and against Jackson for aggravated assault, arising out of the December 1, 1990, incident, the court stayed all proceedings on the defendants' motion. On October 22, 1992, the plaintiffs filed their first amended complaint, naming Officers Keating, Murray and Coughlin as defendants, and filed a second amended complaint on December 7, 1993, this time changing the

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claims for which they were seeking relief. 1 Finally, Jenkins and Jackson filed their third and final amended complaint on January 29, 1994. In this complaint, Jenkins claimed that Officers Keating, Murray and Coughlin unlawfully arrested him and used excessive force on him, in violation of the Fourth Amendment and 42 U.S.C. § 1983. He further alleged that each of the named defendants committed a battery upon him, and that Officer Keating "allowed and maliciously, wilfully and wantonly permitted civilians to make physical contact of an insulting or provoking nature" against him, in violation of state law. Jackson also asserted a § 1983 claim against the officers for unlawful arrest, and alleged a state law violation against Keating, contending that he maliciously, willfully and wantonly made false charges against her. On July 22, 1994, the parties filed a joint motion to voluntarily dismiss Officer Coughlin as a defendant, which the court granted.

On March 23, 1995, the remaining defendants, Officers Keating and Murray, filed a motion in limine to bar the testimony of one of Jenkins' expert witnesses, Dr. Jules Shapiro. Dr. Shapiro was expected to testify regarding Jenkins' alleged inability to make a fist with his right hand on December 1, 1990, due to the broken finger he had sustained prior to that date. The court granted the defendants' motion, but expressly noted that Jenkins could seek reconsideration of the ruling at trial if he could demonstrate that Dr. Shapiro's testimony was relevant to the question of excessiveness of force. The defendants also filed a motion for summary judgment on Jackson's and Jenkins' claims. In an order dated May 15, 1996, the court dismissed Jenkins' battery claim against Murray without objection, and granted summary judgment in favor of the defendants on Jackson's and Jenkins' unlawful arrest claims. Thus, as the court explained, all that was left to adjudicate were the questions of "whether Keating and Murray used excessive force in making what is a lawful arrest and whether Keating battered Jenkins." These remaining claims proceeded to a trial before a jury. A verdict was returned in favor of the defendants on both claims. The plaintiffs appeal.

II. ISSUES

The appellants advance two arguments for our consideration--one as to Jenkins and the other as to Jackson. First, Jenkins contends he is entitled to a new trial on his "excessiveness of force" claim because the district court erred in granting the defendants' motion in limine to exclude the medical testimony of Dr. Shapiro. And second, Jackson alleges that the court improperly entered summary judgment in Officer Keating's favor on her 42 U.S.C. § 1983 claim for unlawful arrest.

III. DISCUSSION

  1. Admissibility of Dr. Shapiro's Expert Testimony

    Initially, we turn to Jenkins' claim that it was error for the district judge to have granted the defendants' motion in limine to suppress Dr. Shapiro's testimony regarding his, Jenkins', ability to make a fist with his right hand. The intricacies of Jenkins' argument is something we need not rehash, however, as it is clear from the record that he has waived this evidentiary issue on appeal by having failed to accept the court's invitation to reconsider the in limine ruling at trial.

    On March 23, 1995, Officers Keating and Murray jointly filed a motion in limine to bar Dr. Shapiro's testimony that Jenkins had injured his right hand before the incident in question, thereby making it physically impossible for him to have formed a fist with that hand and, in turn, to have struck Keating with it. The gist of the officers' argument was that Jenkins had previously litigated, albeit unsuccessfully, the issue of whether he

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    "was able to strike, punch, push or fight with Officer Keating" at a Chicago Police Board disciplinary proceeding, and he was thus collaterally estopped from relitigating the matter in a subsequent trial. 2 More specifically, the officers contended that "[t]he Board determined that the plaintiff did in fact strike, push, wrestle and fight with officer Keating. Accordingly, the Board ... rejected plaintiff's assertion that he could not so act and also rejected Dr. Shapiro's testimony to that effect.......

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