Cannon v. Burge

• Decision Date: 15 August 2014
• Docket Number: No. 12–1529.,12–1529.
• Citation: 752 F.3d 1079
• Parties: Darrell CANNON, Plaintiff–Appellant, v. Jon BURGE, former Chicago Police Lieutenant, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

752 F.3d 1079

Darrell CANNON, Plaintiff–Appellant,

v.Jon BURGE, former Chicago Police Lieutenant, et al., Defendants–Appellees.

No. 12–1529.

United States Court of Appeals,Seventh Circuit.

Argued Jan. 22, 2013.

Decided May 27, 2014.

Rehearing En Banc Denied Aug. 15, 2014.^*

Ben H. Elson, Attorney, G. Flint Taylor, Attorney, People's Law Office, Chicago, IL, for Plaintiff–Appellant.

James G. Sotos, Attorney, Sotos & Associates, Itasca, IL, Justin A. Houppert, Attorney, City of Chicago Law Department, Thomas P. Walsh, Attorney, Office of the United States Attorney, Chicago, IL, for Defendants–Appellees.

Before RIPPLE, ROVNER, Circuit Judges, and BARKER, District Judge. ^**

ROVNER, Circuit Judge.

This appeal casts a harsh light on some of the darkest corners of life in Chicago. The plaintiff, at the time of the events giving rise to this suit, was a general in the El Rukn street gang, out on parole for a murder conviction, when he became embroiled in a second murder. Among the defendants are several disgraced police officers, including the infamous Jon Burge, a man whose name evokes shame and disgust in the City of Chicago.¹ At issue is whether the plaintiff, who long ago settled his claims against the defendants, should be allowed to have a second chance to litigate his case, on the grounds that the defendants engaged in such an extensive cover-up of the police torture scandal at the center of this case that the plaintiff was effectively denied his day in court the first time around. The district court held that the settlement precluded further litigation and granted summary judgment in favor of the defendants. We affirm.

I.

In 1971, Darrell Cannon, the plaintiff here, was convicted of the murder of Emanuel Lazar and was sentenced to 100 to 200 years in prison. After serving twelve years of that sentence, Cannon was paroled in January 1983. Approximately ten months later, on October 26, 1983, Cannon found himself behind the wheel of a car, traveling down the Bishop Ford Freeway ² in Chicago, as one of his fellow El Rukn generals, Andrew McChristian, murdered Darrin Ross in the back seat. Cannon then followed McChristian's directions to take the next exit off the freeway, driving to a field behind the Altgeld Gardens housing complex. There, McChristian and Cannon dumped Ross's body onto the side of a dirt road adjoining the field. Not knowing whether Ross was dead or alive, Cannon then drove McChristian to a pool hall where Cannon picked up his own car and drove home.

A few days later, on November 2, 1983, Cannon was arrested for Ross's murder by three of the defendants in this case, Sergeant John Byrne and Detectives Peter Dignan and Charles Grunhard. These men worked for the Chicago Police Department's Area 2 Violent Crimes division under two other defendants in this case, then-Commander Leroy Martin and then-Lieutenant Jon Burge. Together with police detectives Michael Bosco and Daniel McWeeny, Byrne, Dignan and Grunhard threatened and tortured Cannon until he confessed that he knowingly ³ participated in the murder of Darrin Ross. All of this was accompanied by race-based taunts and threats. Each time Cannon thought he was safely away from his tormentors, he recanted his confession, and each time he recanted, he was subjected to more torture.

Almost immediately after leaving police custody, Cannon recanted his confession again and began to complain about the treatment he received at the hands of these officers. Five days after his arrest, his wife filed a complaint on his behalf with the Chicago Police Department's Office of Professional Standards (“OPS”). But Byrne, Dignan and Grunhard lied to OPS, and the complaint was dismissed as “not sustained.” At his criminal trial in 1984, Cannon moved to suppress his confession on the grounds that it was obtained through torture and coercion. Again Byrne, Dignan and Grunhard as well as McWeeny lied, this time under oath, denying that Cannon had been tortured. The court denied the motion to suppress and Cannon's confession was used at trial. In 1984, Cannon was convicted of Darrin Ross's murder and sentenced to life in prison.

In September 1986, two years after his conviction, Cannon filed a pro se federal complaint from prison, asserting for a third time that Byrne, Dignan and Grunhard had mistreated him. In particular, he alleged that Dignan beat him on the knee with a flashlight; that Dignan played “Russian Roulette” with him with an apparently loaded shotgun, repeatedly placing the barrel in Cannon's mouth and pulling the trigger when Cannon refused to answer questions; that Grunhard, Dignan and Byrne lifted him up from behind by his handcuffs, causing unbearable pain; and that Byrne pulled down Cannon's pants and shorts and applied an electric cattle prod to his testicles, penis and the inside of his mouth repeatedly over an hour-long period as the officers questioned Cannon about Ross's murder. Cannon sought from each officer “$15,000 in compensatory and punitive damages, plus physical injuries, pain, suffering, emotional and mental distress” as well as other relief the court deemed just and proper. R. 28–2, at 42–48. The court appointed attorney E. Paul Lanphier to represent Cannon. Lanphier deposed Byrne, Dignan, Grunhard and McWeeny and all four continued to lie under oath and deny that they had abused Cannon. Both Cannon and Lanphier suspected that Cannon was not the only arrestee who had been abused by these officers—indeed, there had been some news reports of other incidents—but they did not know that the abuse against African American men by Area 2 officers was pervasive and occurred with the complicity of Burge. They did not know that many of the same bizarre and sadistic techniques that these officers used against Cannon had also been used against many other African American men who had been arrested in Area 2. Despite their suspicions, Lanphier did not ask the City or the individual defendants about any other victims of the Area 2 officers.

In 1988, Lanphier assessed Cannon's case in light of the facts known to him at the time: Cannon was now a twice-convicted murderer, a long-time gang member, sentenced to life in prison, accusing his arresting officers of torture. Although Lanphier believed that the second murder conviction would be inadmissible at the civil trial, he advised Cannon that the first murder conviction would be considered relevant and admissible. There was no physical evidence to corroborate Cannon's claims and the officers had repeatedly denied the allegations, including under penalty of perjury. Lanphier assessed Cannon's chances of prevailing as slim and advised Cannon to settle for the $3000 nuisance value offered by the defendants. R. 391–7, at 2–4, 6. Cannon accepted his lawyer's advice and settled the suit in February 1988, signing a broadly worded release of his claims against the named defendants as well as the City of Chicago, which was joined for the purpose of settling the case:

In consideration of the hereinafter-indicated settlement and Judgment entered thereon, Plaintiff agrees to indemnify and hold harmless the City of Chicago, its officers, agents and employees including, but not limited to, the remaining Defendant, from any claims, losses, damages or expenses incurred, or which may be incurred, by reason of the incident which was the basis of the litigation.

...

Plaintiff understands, upon advice of his counsel, and agrees that such Judgment is a final and total settlement of all claims he has, or may have in the future, arising either directly or indirectly out of the incident which was the basis of this litigation, and that such finality is applicable to the remaining Defendant, the CITY OF CHICAGO, its officers, agents and employees.

R. 28–2, at 38–39 (hereafter, the “1988 Stipulation”). After costs and fees, Cannon netted $1247.70. The case against the officers was dismissed with prejudice, and final judgment was entered in favor of Cannon and against the City of Chicago. The 1988 Stipulation was incorporated by reference into the judgment order. R. 28–2, at 37–40; 50–51.

In the meantime, Cannon appealed his conviction. The Illinois appellate court affirmed the denial of his motion to suppress his confession but remanded the case to the trial court for a hearing on the prosecution's use of peremptory challenges to exclude African American jurors. After holding that hearing, the trial court ordered a new trial. People v. Cannon, 293 Ill.App.3d 634, 227 Ill.Dec. 1000, 688 N.E.2d 693, 693–94 (Ill.App. 1st Dist.1997) (“Cannon I ”). At the subsequent retrial in 1994, the court declined to revisit the issue of the voluntariness of Cannon's confession and once again allowed the confession to be used as evidence. Cannon was again found guilty of the murder of Darrin Ross, and again sentenced to life in prison.

Cannon appealed again and, this time, the court vacated the conviction and the sentence, and remanded for a new hearing on the voluntariness of Cannon's confession. Cannon I, 227 Ill.Dec. 1000, 688 N.E.2d at 694. The court noted that Cannon had presented the trial court with new evidence in support of his motion to reconsider the ruling from the first trial. In particular, Cannon wished to present (1) a police log indicating that his arresting officers had checked out a shotgun on the day of his arrest, contrary to their testimony at his first suppression hearing that they were not in possession of a shotgun; (2) deposition testimony from Byrne and Dignan in a related civil action; (3) photos taken by OPS of the site where Cannon said he was tortured; (4) testimony of sixteen arrestees who filed charges with OPS that they had been tortured by some of the same officers at Area 2; and (5) evidence that cattle prods small enough to fit in a car's glove compartment existed in 1983. Cannon also supported his motion with an offer of proof stating that the defense, if allowed, would have presented the...