Calusinski v. Kruger

• Decision Date: 16 May 1994
• Docket Number: No. 93-2126,93-2126
• Citation: 24 F.3d 931
• Parties: Paul CALUSINSKI, Plaintiff-Appellant, v. James KRUGER, John Terry and Michael Gillette, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 931

24 F.3d 931

Paul CALUSINSKI, Plaintiff-Appellant, v. James KRUGER, John Terry and Michael Gillette, Defendants-Appellees.

No. 93-2126.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 8, 1994.

Decided May 16, 1994.

Harvey Melinger, Steven R. Hansen, Chicago, IL, Robert L. Renfro, Huck, Bouma, Martin, Charlton & Zellner, Glen Ellyn, IL, Howard Peritz (argued), Buffalo Grove, IL, J. Douglas Weingarten, Chicago, IL, for plaintiff-appellant.

Charles E. Hervas (argued), James G. Sotos, Michael W. Condon, Michael D. Bersani, Hervas, Sotos & Condon, Itasca, IL, for defendants-appellees.

Before PELL, WOOD, Jr., and ESCHBACH, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

On February 23, 1988, Cheryl Calusinski, the wife of Plaintiff Paul Calusinski, called her brother-in-law who in turn called the Carpentersville police department to report a domestic dispute in progress. Officers James Kruger and John Terry, two of the defendants here, ¹ were dispatched to the Calusinski home. When the officers arrived, Kruger knocked on the front door and identified himself as a police officer. A male voice (later identified as the plaintiff's) from behind the door told Kruger to go away. Kruger responded that he just wanted to make sure everything was alright inside, and the male voice again instructed the officer to leave. A female voice then shouted "help, get me out of here." Officer Kruger told Mr. Calusinski to open the door immediately or otherwise he would forcefully enter the home. When Calusinski refused to open the Inside the home the officers found Mrs. Calusinski crying on the couch with a child in her lap. Mr. Calusinski was sitting on a second couch screaming at the officers to leave the home. Dudley, a large dog weighing more than one hundred pounds, came down the stairs. Mr. Calusinski ordered the dog to "watch them [the officers]." Dudley barked and showed his teeth. Fearing an attack by the dog, Terry told Kruger to shoot the dog if it moved. In order to protect the dog, Mrs. Calusinski escorted Dudley to another room.

door, Kruger kicked down the door and entered the home with Terry following.

Kruger then informed Mr. Calusinski that he was under arrest. Mr. Calusinski asked what the charges were. After receiving no immediate response, he swore at the officers, refused to cooperate, and refused to be handcuffed. Kruger repeated that Mr. Calusinski was under arrest, grabbed Mr. Calusinski's arm, and attempted to cuff him. When these actions failed, Kruger displayed his SR 5000 stun gun ² and advised Mr. Calusinski that he would use it if necessary. Mr. Calusinski continued his contumacy and Kruger used the stun device on Mr. Calusinski's side. Mr. Calusinski testified that he then told the officers that he was recovering from back surgery. Mr. Calusinski jumped off the couch and began moving quickly away from Kruger before he ran into Terry. The officers struggled with Mr. Calusinski in an attempt to subdue him, forcefully pushed him to the ground, and again applied their stun devices to Mr. Calusinski's midsection. Mr. Calusinski continued to resist arrest and kicked the officers. During this struggle, Officer Gillette arrived at the scene and also applied his stun device to Mr. Calusinski. In total, the defendants applied their stun devices somewhere between three and seven times, depending on whose set of facts are accepted.

Eventually the three officers were able to subdue Mr. Calusinski, handcuff him, and take him to the police station. He was charged with aggravated assault, resisting arrest, and disorderly conduct. At the station, Mr. Calusinski complained of back pain and was then taken to the emergency room at Sherman Hospital. The hospital medical staff did not find anything wrong with Mr. Calusinski and released him back into police custody.

Mrs. Calusinski later dismissed the aggravated assault charges against her husband. However, Mr. Calusinski was tried and convicted of resisting a peace officer in the Circuit Court of Kane County, Illinois.

On May 3, 1989, Mr. Calusinski filed this lawsuit under 42 U.S.C. Sec. 1983 alleging constitutional violations arising out of his arrest on February 23, 1988. Only two claims were submitted to the jury, both implicating the Fourth Amendment of the United States Constitution: (1) whether Mr. Calusinski was arrested without probable cause; and (2) whether the defendants used excessive force during the arrest. At the conclusion of trial, a jury found in favor of the defendants. Following trial, the magistrate judge denied plaintiff's motion for a new trial. Plaintiff now appeals alleging numerous procedural errors during trial and challenging the sufficiency of the evidence. We find no merit in these arguments and affirm.

ANALYSIS

This appeal raises several procedural and evidentiary issues including (1) whether the magistrate judge properly admitted evidence of Mr. Calusinski's criminal conviction for resisting arrest; (2) whether the magistrate judge properly instructed the jury on the issue of probable cause; (3) whether the magistrate judge properly excluded testimony on subsequent incidents of excessive use of force by Officer Terry and other Carpentersville police officers; and (4) whether the magistrate judge abused her discretion in denying plaintiff's motion for a new trial. We review each of these arguments separately.

I. Admissibility of Criminal Conviction

Before trial Mr. Calusinski filed a motion in limine to bar defendants from using during trial evidence of his conviction for resisting arrest on the occasion in question. The magistrate judge denied this motion and Mr. Calusinski contends that this was error. We review the district court's rulings on a motion in limine under an abuse of discretion standard. Binks Mfg. Co. v. National Presto Indus., Inc., 709 F.2d 1109, 1115 (7th Cir.1983).

The use of state criminal convictions as evidence in subsequent federal section 1983 actions has been sufficiently addressed by two cases in this circuit. Rodriguez v. Schweiger, 796 F.2d 930, 932-33 (7th Cir.1986), cert. denied, 481 U.S. 1018, 107 S.Ct. 1899, 95 L.Ed.2d 506 (1987); Brown v. Green, 738 F.2d 202, 206 (7th Cir.1984). Citing Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980), we recognized that 28 U.S.C. Sec. 1738 (1966) addresses the preclusive effect of criminal convictions, and this statute applies in section 1983 actions. Rodriguez, 796 F.2d at 932-33. Allen states: "Congress has specifically required all federal courts to give preclusive effect to state court judgments whenever the courts of the State from which the judgment emerged would do so." Allen, 449 U.S. at 96, 101 S.Ct. at 415. Here Mr. Calusinski was convicted in Illinois where "evidence of a prior criminal conviction is admissible in a civil proceeding as prima facie evidence of the facts upon which the conviction is based if those facts are relevant to some issue involved in the civil proceeding." Brown, 738 F.2d at 206. ³ For this prima facie rule to apply, "the criminal proceedings must have been 'of sufficiently serious import' to ensure the reliability of the conviction." Id., quoting Thornton v. Paul, 74 Ill.2d 132, 151, 23 Ill.Dec. 541, 549, 384 N.E.2d 335, 342 (1978). Thus we must determine whether Mr. Calusinski's conviction for resisting arrest is of sufficiently serious import.

Illinois criminal statutes broadly classify crimes in four different categories: felonies, misdemeanors, petty offenses, and business offenses. The misdemeanors category is further divided into three classifications, A, B, and C. Class A is the most serious type of misdemeanor for which Illinois law imposes the harshest penalties. See John F. Decker, Illinois Criminal Law 731-32 (1986). Resisting arrest, a class A misdemeanor in Illinois, carries a potential penalty of up to one year in jail and a fine of $1,000. 730 ILCS 5/5-8-3, 5/5-9-1 (1993). These potential penalties are distinctly more severe than fines typically imposed for traffic violations. In the absence of any evidence that the underlying criminal proceedings are otherwise unreliable, we find that resisting arrest satisfies the "sufficiently serious import" requirement. See Brown, 738 F.2d at 209. ⁴ Therefore the magistrate judge properly admitted evidence of Mr. Calusinski's conviction for resisting arrest as prima facie evidence that he forcefully resisted attempts by the officers to arrest him.

Plaintiff cites Smith v. Andrews, 54 Ill.App.2d 51, 203 N.E.2d 160 (2d Dist.1964), and argues that a trial for resisting arrest is a relatively informal proceeding similar to a traffic court proceedings where the criminal defendant is often unrepresented by counsel and frequently does not assert a vigorous defense. Id. at 60, 203 N.E.2d at 165. He argues that here the criminal proceedings were informal because they occurred outside the presence of a court reporter. Mr. Calusinski also suggests that all misdemeanor charges should be considered informal because "misdemeanor defendants are frequently unrepresented by counsel." We find plaintiff's argument unpersuasive. First, plaintiff fails to suggest how the absence of a court reporter made these misdemeanor charges insignificant. Second, Mr. Calusinski was represented by counsel at his criminal trial. ⁵

II. Jury Instruction 24

Mr. Calusinski argues that the magistrate judge erroneously instructed the jury on the offenses for which probable cause existed when the officers arrested him by including a reference to disorderly conduct. Instruction 24 stated: "In this case, defendants allege that plaintiff committed the crimes of assault, aggravated assault and disorderly conduct," and then went on to properly define each of these crimes. Despite the proper definitions, plaintiff argues that this instruction is erroneous because none of the defendants testified during trial that they had probable cause to suspect that Mr....