868 F.3d 572 (7th Cir. 2017), 16-1770, Doornbos v. City of Chicago

Docket Nº:16-1770
Citation:868 F.3d 572
Opinion Judge:Hamilton, Circuit Judge.
Party Name:JOSEPH DOORNBOS, Plaintiff-Appellant, v. CITY OF CHICAGO, et al., Defendants-Appellees
Attorney:For JOSEPH DOORNBOS, Plaintiff - Appellant: Torreya L. Hamilton, Attorney, HAMILTON LAW OFFICE, LLC, Chicago, IL; Thomas P. Needham, Attorney, LAW OFFICE OF THOMAS P. NEEDHAM, Chicago, IL. For CITY OF CHICAGO, MICHAEL J. WILLIAMSON, KENNETH YAKES, ROBERT CAPIAK, Defendants - Appellees: Justin A. ...
Judge Panel:Before BAUER, POSNER, and HAMILTON, Circuit Judges.
Case Date:August 18, 2017
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
SUMMARY

Doornbos was leaving a Chicago train station when a plainclothes police officer confronted him, grabbed him, and with the help of other plainclothes officers, forced him to the ground. Doornbos was acquitted of resisting arrest. He sued the officers and the city for excessive force and malicious prosecution, claiming that Officer Williamson failed to identify himself as an officer and then used... (see full summary)

 
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Page 572

868 F.3d 572 (7th Cir. 2017)

JOSEPH DOORNBOS, Plaintiff-Appellant,

v.

CITY OF CHICAGO, et al., Defendants-Appellees

No. 16-1770

United States Court of Appeals, Seventh Circuit

August 18, 2017

Argued April 19, 2017.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 13-cv-06021 -- John J. Tharp, Jr, Judge.

For JOSEPH DOORNBOS, Plaintiff - Appellant: Torreya L. Hamilton, Attorney, HAMILTON LAW OFFICE, LLC, Chicago, IL; Thomas P. Needham, Attorney, LAW OFFICE OF THOMAS P. NEEDHAM, Chicago, IL.

For CITY OF CHICAGO, MICHAEL J. WILLIAMSON, KENNETH YAKES, ROBERT CAPIAK, Defendants - Appellees: Justin A. Houppert, Attorney, CITY OF CHICAGO LAW DEPARTMENT, Chicago, IL.

Before BAUER, POSNER, and HAMILTON, Circuit Judges.

OPINION

Hamilton, Circuit Judge.

Plaintiff Joseph Doornbos was leaving a Chicago train station when a plainclothes police officer confronted him, grabbed him, and with the help of two other plainclothes officers, forced him to the ground. Doornbos was acquitted in a criminal trial for resisting arrest. He then filed this suit against the three officers and the City of Chicago for excessive use of force and malicious prosecution. Doornbos contends that Officer Williamson failed to identify himself as an officer and then used excessive force to tackle and subdue him. Officer Williamson claims that he properly identified himself as a police officer and that Doornbos fled when Williamson attempted to stop and frisk him. The case went to trial, and the jury returned a verdict in favor of the officer-defendants. On appeal, Doornbos argues that the district court erred in two ways: by admitting evidence that he had marijuana in his pocket at the time of the incident, and by improperly instructing the jury about investigatory Terry stops.

We find that the district court did not abuse its discretion by admitting the marijuana evidence. Although the marijuana was unknown to the officers at the time they used force against Doornbos, it was evidence that arguably tended to corroborate their account of Doornbos's behavior.

The jury instructions on Terry stops, however, were inadequate. Over Doornbos's objection, the court instructed the jury only on investigatory stops but not frisks. Yet Officer Williamson's own testimony indicates that he was starting a frisk when he first approached Doornbos. His own testimony also makes clear that he did not have reasonable suspicion that Doornbos was armed and dangerous. Doornbos was entitled to have the jury know that the attempted frisk, which even the defense says produced the use of force, was unjustified. The court erred further during deliberations. The jury asked the judge whether plainclothes officers are required to identify themselves when they conduct a stop. The judge said no. We conclude that the answer is yes. In all but the most unusual circumstances, where identification would itself make the situation more dangerous, plainclothes officers must identify themselves when they initiate a stop. Because these errors were not harmless, we vacate the judgment for defendants and remand for a new trial.

I.

Factual and Procedural Background

A.

Confrontation at the Wilson Avenue Station

On February 15, 2013, Doornbos took a local Chicago train to visit a friend's home. At approximately 7:30 p.m., he got off the train at the Wilson Avenue stop in the Uptown neighborhood of Chicago. As Doornbos left the station he was approached by Officer Williamson. The officer was dressed in jeans, a black hooded sweatshirt, a jacket, and a baseball cap. Here the accounts diverge.

According to Officer Williamson's trial testimony, he saw Doornbos holding a large can of beer that was partially covered by a brown bag. He did not see Doornbos drink the beer, nor could he tell if the can of beer was even open. Nonetheless, he decided to investigate further. (A Chicago Transit Authority ordinance prohibits possessing an open container of alcohol while using the transportation system. See Chicago Transit Auth. Ordinance No. 016-110, Sec. 1(4) (2016), available at http://www.transitchicago.com/assets/1/ordinances/016-_110.pdf.) Williamson testified that as Doornbos left through the turnstiles, he approached Doornbos, said " Chicago police officer," and lifted his shirt to display his belt, on which were clipped a badge, gun, and handcuff case.

As Officer Williamson drew near to Doornbos, he reached out with one hand to grab Doornbos's arm. Williamson testified that he reached out to frisk Doornbos for weapons. When asked in the trial why he thought Doornbos might be armed, Williamson said that it was a high-crime area, it was dark, Doornbos may have been breaking the law by drinking beer, and Doornbos was wearing a jacket with " deep pockets" in which he " could have hidden anything."

Officer Williamson testified that as he reached out to grab Doornbos, Doornbos pushed him away, dropped the beer, and tried to run. He grabbed Doornbos's jacket, and Doornbos dragged him approximately twenty feet. Williamson testified that Doornbos was screaming loudly for help and yelling that he was being robbed, but that Williamson was saying " stop, police." After Doornbos started to stumble, Williamson testified that they " basically fell to the ground together," or as he described it later, he " forcibly guide[d] him to the ground." Doornbos was still screaming for help, and two other officers came to help Officer Williamson, not Doornbos. The officers found in Doornbos's pocket a small amount of marijuana worth around five dollars. After Doornbos was restrained, Officer Williamson said he went back and inspected the beer can. He testified that it was unopened, and he did not collect it as evidence.

Doornbos provided a very different account. He testified that he was not carrying a beer can at all. After he walked through the turnstile, he said, a man suddenly grabbed him: " I thought I was being robbed. So I started screaming for help, hoping someone would call the police." In fact, four people who saw or heard the incident called 911 and reported that a man was being attacked or robbed outside the station.

Doornbos's testimony regarding whether and when Officer Williamson said " stop" or " police" was not entirely consistent. During trial Doornbos emphasized that he " wasn't sure of the timing. It happened really fast." Doornbos initially testified at trial that he did not hear Williamson identify him-self as an officer before being tackled. He later said that he heard " police" before being thrown to the ground, and then said that he did not hear " police." Doornbos also testified at trial that he might have heard " stop" after testifying that he actually did hear " stop." Doornbos testified that he was " not 100 percent sure" because the confrontation " happened very quickly."

Doornbos testified that he twisted his arm to get away from a man he thought was attacking him, but as he was turning he was " tackled and thrown to the ground." He said that he was able to move only three to four steps before the three men in civilian clothes threw him down. After the men hand-cuffed him, Doornbos realized they were police officers and stopped resisting. He sustained minor injuries from the confrontation. He also testified that he was disoriented and upset after the sudden tackle, that one officer mocked him for crying, and that another officer made fun of his " fag" clothing.

B.

Criminal Prosecution and Trial

Doornbos was charged with resisting arrest and possession of cannabis. The cannabis charge was dismissed, and in June 2013 Doornbos went to trial on the charge for resisting arrest. Doornbos, Officer Williamson, and another officer at the scene testified at the trial. The court acquitted Doornbos, emphasizing that the officers provided inconsistent and " very unusual" accounts of the alleged beer can, which was never taken into evidence. The court also noted that the officers never told Doornbos he was under arrest or even asked to see the beer can: The defendant is charged with resisting arrest. There's no testimony to indicate the defendant was ever told he was under arrest by any police officer. If the beer can was closed and sealed as the officers suggest, there would be absolutely no reason to arrest the defendant at all. And there is no testimony of the officer approaching the defendant saying let's see the beer can, or is that beer can open or closed. So there's not even a question posed to the defendant regarding the status of the beer if that's the reason why the defendant is being stopped and detained at all.

Finally, the court emphasized that the officers were in plain clothes rather than in uniform, and Doornbos did not appear to know they were police officers: "...

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