Burton v. City of Zion, 17-1557

• Decision Date: 24 August 2018
• Docket Number: No. 17-1557,17-1557
• Parties: Kasey BURTON, Plaintiff-Appellant, v. CITY OF ZION, Lake County, Illinois, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

901 F.3d 772

Kasey BURTON, Plaintiff-Appellant,

v.CITY OF ZION, Lake County, Illinois, et al., Defendants-Appellees.

No. 17-1557

United States Court of Appeals, Seventh Circuit.

ARGUED JANUARY 16, 2018

DECIDED AUGUST 24, 2018

Rovner, Circuit Judge.

On March 13, 2014, Kasey Burton was driving to pick up her roommate's niece for a barbeque.¹ Unbeknownst to her, her license was suspended. Officer Jonathan Meyers, a City of Zion police officer, however, had learned the news in that day's "hot sheets" (a list of items of current interest to police). After he spotted her driving, he verified by radio that the police had an active warrant for her arrest for driving on a suspended license, and then pulled behind Burton's van and activated his squad car's emergency lights. Burton saw the flashing lights and heard the siren and knew that an officer wanted to pull her over, but according to her testimony at trial, Burton was afraid to pull over because of her experience with a Zion police officer five and a half years earlier, in 2008. During that earlier incident, Zion police officer Joseph Richardt pulled Burton over for operating a vehicle with sound amplification. By the end of that stop, Officer Richardt had handcuffed Burton and then, while she was handcuffed, used a taser to stun her. Burton filed a citizen's complaint against Officer Richardt and, after an internal investigation, the Zion Police Department sustained the allegations of unnecessary force. Burton filed a federal lawsuit against the City of Zion, Officer Richardt, and other officers and eventually reached a settlement with the City.

Burton testified that this prior incident was on her mind and that she was afraid of the police when Officer Meyers tried to pull her over. As a result, she said, she did not immediately comply with Officer Meyers' request for a stop, but instead drove her car toward her home while following all speed limits and traffic laws, where she knew she could exit her car with friendly witnesses watching. The officers also testified that they knew that Burton was heading to her house.

As she was driving home, Officer Richardt, the same officer who had been involved in the incident with Burton before, joined the pursuit, also activating his lights and siren, followed by a third officer in a third squad car, Sergeant Duane Arrington. At some point, Sergeant Arrington maneuvered his car in front of Burton's to get her to stop, but she merely turned left and continued to drive, still following all speed limits and traffic laws, until she reached her driveway.

Burton arrived at her home and stopped her van near her friend, Dale Wells, who was with his pit bull. Officer Meyers stopped behind Burton's van and as he approached the driver's side door, Burton exited through the passenger-side door because, she alleged, the driver's side door was not functioning. Officer Richardt saw Burton exit the van and ran toward her commanding her to get on the ground. Officer Richardt brought Burton to the ground but did so by incorrectly executing a "straight-arm take down." As they were on the ground, the pit bull jumped on top of Officer Richardt and bit his leg, but immediately released it without causing damage. Sergeant Arrington placed his knee on Burton's back as he handcuffed her then dragged her away. Burton's suit alleged that as a result of the incident, she suffered with pain for a month.

Burton sued the City of Zion, Officer Richardt, and Sergeant Arrington, under 42 U.S.C. § 1983, claiming that the officers used excessive force in executing her arrest in violation of her Fourth Amendment rights.² Prior to trial, each party filed motions in limine, including the one at issue here, in which the City of Zion asked that any evidence regarding Burton's 2008 encounter with Officer Richardt be omitted from evidence. The district court granted the defendants' motion, thus removing any evidence of the 2008 encounter from the jury's consideration. In other words, the jury heard testimony about and saw video of the 2014 stop, including Burton's failure to stop, her slow drive home, and the arrest itself, but nothing about her prior experience with Officer Richardt. Burton filed a motion for reconsideration, but that too was denied. R. 118. After a three day trial, the jury found in favor of the defendant officers and City of Zion. Burton now appeals, arguing that the district court erred in its order on the motion in limine by disallowing the evidence of her 2008 encounter with Officer Richardt.

I.

District courts have broad discretion in ruling on motions in limine, and we review such a ruling only for an abuse of discretion." DiPerna v. Chicago Sch. of Prof'l Psychology , No. 17-3351, 2018 WL 3121236, at *6 (7th Cir. June 26, 2018). We show great deference for a district court's evidentiary rulings. Holder v. Ill. Dep't of Corr. , 751 F.3d 486, 493 (7th Cir. 2014). Even if we find an abuse of discretion, "[a] new trial is warranted only if the error has a substantial and injurious effect or influence on the determination of a jury and the result is inconsistent with substantial justice." Arrigo v. Link , 836 F.3d 787, 794 (7th Cir. 2016) (citation omitted). In other words, there must be a significant chance that the flawed ruling affected the outcome of the trial. Thorncreek Apartments III, LLC v. Mick , 886 F.3d 626, 634 (7th Cir. 2018). Burton need not show that on remand a jury will come out the other way. United States v. Richards , 719 F.3d 746, 765–66 (7th Cir. 2013). She need only show that an average juror would have found the omitted evidence persuasive. United States v. Miller , 673 F.3d 688, 700 (7th Cir. 2012).

The district court granted the defendants' motion in limine after concluding that the evidence of the prior stop was propensity evidence—evidence that Officer Richardt acted in accordance with the character of someone who uses excessive force—and, therefore under Federal Rule of Evidence 404(b), it could not be admitted. This federal rule sets forth the prohibited and permitted uses of prior acts as follows (In this case, the controverted prior act is not criminal in nature, but rather a civil wrong):

(b) Crimes, Wrongs, or Other Acts.

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.

(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

Fed. R. Evid. 404(b).

In order to delve into an analysis under Rule 404(b), we need to explore the nature of Burton's case, that is, what she was trying to prove, and thus for what purpose the evidence might have been relevant. This case alleges excessive force by a law enforcement officer so, in order to be relevant, all evidence must make it more or less probable that the officers' force was reasonable. See Fed. R. Evid. 401.

Burton accused Richardt of using excessive force as she exited her van. Whether the amount of force an officer used is excessive or reasonable turns on the "facts and circumstances of each particular case." Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). The standard of reasonableness for a police officer in an excessive force case is "an objective one: the question is whether the officers' actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Id. at 397, 109 S.Ct. 1865. "A court must make this determination from the perspective of a reasonable officer on the scene, including what the officer knew at the time, not with the 20/20 vision of hindsight." Kingsley v. Hendrickson , ––– U.S. ––––, 135 S.Ct. 2466, 2473, 192 L.Ed.2d 416 (2015). The Supreme Court case law on excessive force has emphasized that the assessment as to whether an officer has used excessive force "requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Kisela v. Hughes , ––– U.S. ––––, 138 S.Ct. 1148, 1152, 200 L.Ed.2d 449 (2018) (citation omitted). In sum, the knowledge of the officer is a critical inquiry in any assessment of reasonable force.

In this case, the district court looked at the prior bad act—Officer Richardt's 2008 stop of and use of a taser against Burton—and analyzed it using this court's four-part test to determine whether prior-act evidence was admissible. That is, the court looked to see whether

(1) the evidence is directed toward establishing a matter in issue other than the [defendant's] propensity to commit the crime charged; (2) the evidence shows that the other act is similar enough and close in time to be relevant to the matter in issue, (3) the evidence is sufficient to support a jury finding that the [defendant] committed the similar act, and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.

D. Ct. Order, R. 116 at 9–10, citing United States v. Vargas , 689 F.3d 867 (7th Cir. 2012).³ Using this framework as a guide, the district court determined that the evidence of the prior act could not be admitted to show Burton's fearful state of mind, because using an objective standard of reasonableness from the officer's point of view, her state of mind was not relevant to the question of whether a police officer used excessive force. R. 116 at 10. The officers could not have known what was going through Burton's mind, the district court explained, and therefore her fearful state of mind was not relevant to the assessment of reasonableness. Id.

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