Common v. City of Chicago

• Decision Date: 20 October 2011
• Docket Number: No. 09–2645.,09–2645.
• Citation: 661 F.3d 940,86 Fed. R. Evid. Serv. 1149
• Parties: Diontra COMMON and Michael Smith, Sr., Co–Administrators of the Estate of Michael Smith, deceased, Plaintiffs–Appellants, v. CITY OF CHICAGO, a municipal corporation, and Officer Guy Nelson, Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

661 F.3d 940

86 Fed. R. Evid. Serv. 1149

Diontra COMMON and Michael Smith, Sr., Co–Administrators of the Estate of Michael Smith, deceased, Plaintiffs–Appellants,

v.CITY OF CHICAGO, a municipal corporation, and Officer Guy Nelson, Defendants–Appellees.

No. 09–2645.

United States Court of Appeals, Seventh Circuit.

Argued March 30, 2010.Decided Oct. 20, 2011.

Blake W. Horwitz (argued), Attorney, Blake Horwitz Law Firm, Chicago, IL, for Plaintiffs–Appellants.

Jonathan Mark Powell (argued), Attorney, City of Chicago Law Department, Chicago, IL, for Defendants–Appellees.

Before POSNER, ROVNER, and TINDER, Circuit Judges.

ROVNER, Circuit Judge.

On November 18, 2006, Chicago Police Officer Guy Nelson fatally shot Michael Smith as he exited a convenience store on Chicago's south side. After his family sued the officer and the City, a jury found that the officer had not used excessive force against Smith. The only question in this appeal is whether the district court judge erred by allowing in evidence that Smith had drugs secreted in his mouth at the time of the shooting.

I.

Due to the limited evidentiary question presented in this court, we cite only those facts essential to that question on appeal. On November 18, 2006, Officer Nelson and his partner, Officer Sean O'Brien, visited a convenience store on the south side of Chicago.¹ The owner of the store told the officers that a robbery suspect frequented his store and that although he had called the police in the past, by the time the police arrived, the suspect was always gone. Officer Nelson gave the store owner his cellular telephone number and told the owner to call should the robbery suspect enter the store again. Later that afternoon, the owner called Officer Nelson to tell him that the robbery suspect of whom they had spoken was in the store again, along with two other men, all three African–American, in their late teens or early twenties, and wearing dark clothing. The officers set off for the store and Officer Nelson took his secondary firearm from his ankle holster and placed it into his right coat pocket. Upon arriving at the store, the officers saw, exiting the store, the three men who met the store owner's description. At this point, the accounts by the various witnesses differ, but this court's obligation is to view the evidence in the light that supports the jury's verdict. Matthews v. Wis. Energy Corp., Inc., 642 F.3d 565, 567 (7th Cir.2011). Officers Nelson and O'Brien both testified that Officer Nelson identified himself as a police officer and told the men to stop and show their hands. Two of the three men complied, but Smith turned and headed away from the officers with his hands in a position not visible to Officer Nelson. Officer Nelson ordered Smith to show his hands at least three times, but Smith failed to comply. Because he could not see what Smith was doing with his hands, Officer Nelson removed his revolver from his pocket. Just as he was removing it, he felt Smith's hand grab for his wrist and pull forward. Officer Nelson, fearing that he was losing control of the gun and that his life was in danger, fired one shot at Smith. That gunshot pierced Smith's chest, he fell forward, and died shortly thereafter.

During an autopsy, the medical examiner discovered five small plastic bags containing cocaine—four in Smith's right chest cavity and one in his trachea. The medical examiner surmised that the four packets had been in Smith's upper airway but fell into his chest cavity during the autopsy and that the other packet also had been in the upper airway but was aspirated into Smith's trachea at the time of the shooting.

Prior to trial, pursuant to a motion in limine, the district court concluded that the evidence regarding the packets of drugs found in Smith's body was admissible and could be introduced, a decision we review for abuse of discretion only, as district courts possess particular competence on matters of evidence. Breneisen v. Motorola, Inc., 656 F.3d 701, 704–05 (7th Cir.2011).

II.

A fact finder assessing whether a police officer has used excessive force must analyze the claim under the Fourth Amendment's objective reasonableness standard. Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). This standard requires that a fact finder analyze whether the officer's actions are objectively reasonable in light of the facts and under the circumstances confronting the officer at the time of the incident, without regard to the underlying motive or intent of the officer, and without the benefit of hindsight. Id. at 396–97, 109 S.Ct. 1865. This circuit clarified in Sherrod v. Berry, 856 F.2d 802 (7th Cir.1988) ( en banc ), that the “circumstances” to which the Graham court referred must mean “only those circumstances known and information available to the officer at the time of his action (firing the fatal shot).” Id. at 804. Knowledge and facts gained after the fact, the Sherrod court concluded, have no proper place in a court's or jury's analysis of the reasonableness of the actor's judgment. Id. at 805. A jury must stand in the shoes of the officer and judge the reasonableness of his actions based on the information he possessed in responding to that situation. Id. at 804–05. In short, when evaluating the reasonableness of an officer's actions, the fact finder must do so with blinders on—viewing the circumstances and facts only as they were known to the officer at the time. We reinforced this holding in Palmquist v. Selvik, 111 F.3d 1332 (7th Cir.1997), noting that “evidence outside of the time frame of the shooting is irrelevant and prejudicial.” Id. at 1339. Taken at face value, these holdings would seem to indicate that the evidence of drugs in Smith's body should not have been admitted at trial. After all, Officer Nelson did not and could not have known that Smith was hiding drugs in his mouth at the time he opened fire.

The Sherrod and Palmquist decisions, however, do allow a peek under the blinders in certain circumstances. The Sherrod court was first to recognize that its holding could “not be interpreted as establishing a black-letter rule precluding the admission of evidence” outside the officer's knowledge. Sherrod, 856 F.2d at 806. That opinion recognized two specific instances wherein a court could look at evidence outside the knowledge of the police officer in an unreasonable force case. First, the court noted, the credibility of the witness “can always be attacked by showing that his capacity to observe, remember or narrate is impaired.” Id. Second, a witness could always be impeached by demonstrating contradictions in his testimony. Id. As an illustration, the Sherrod court went on to say, “[f]or example, if an officer testifies that ‘I saw a shiny, metallic object similar to a gun or a dangerous weapon in the suspect's hand,’ then proof that the suspect had neither gun nor knife would be material and admissible to the officer's credibility on the question of whether the officer saw any such thing.” Id. On the other hand, the Sherrod court noted, “if the officer says ‘I saw the suspect reach quickly for his pocket,’ then proof of the contents of the pocket does not contradict the officer's testimony.” Id.

In Sherrod, a police officer had approached a suspected robber's automobile. The officer ordered the driver, Sherrod, and his passenger to raise their hands three times before they complied. As the officer approached the vehicle, he observed the driver make a quick movement with his hand into his coat. Fearing that Sherrod was reaching for a gun, the police officer fired his weapon, killing him instantly. A later search revealed that Sherrod was unarmed. Id. at 803–04. The trial judge allowed the plaintiffs to present the evidence that Sherrod was unarmed, reasoning that “the jury would have been left to speculate as to whether [the officer] was justified in thinking that the claimed movement by Sherrod posed a danger to the police officer.” Id. at 804. This court reversed on the basis that “[k]nowledge of facts and circumstances gained after the fact (that the suspect was unarmed) has no place in the trial court's or jury's proper post-hoc analysis of the reasonableness of the actor's judgment. Were the rule otherwise, ... the jury would possess more information than the officer possessed when he made the crucial decision.” Id. at 805. The officer in Sherrod did not testify that he saw an object in the deceased hands, but rather that he saw the suspect make a quick movement with his hand into his coat. The testimony that Sherrod reached into his coat was thus uncontroverted.² Thus the evidence that Sherrod was unarmed was irrelevant for impeachment purposes, and the jury had to determine the reasonableness of the officer's action using only those facts known to the officer at the time. Id. at 806–07.

Similarly, in Palmquist, police officers responded to a call that a man was screaming profanities, making death threats, howling at the moon, and breaking windows. When they arrived at the scene, they found a belligerent Palmquist, standing outside of his house screaming obscenities and incoherent statements and brandishing a muffler pipe. Palmquist, 111 F.3d at 1335. When the officers attempted to arrest Palmquist for breaking windows, he swung the pipe and hit an officer. After he swung a second time, another officer fired and maimed Palmquist. Palmquist stood back up and said, “You only winged me—you'll have to kill me,” as he lifted the pipe and swung it in the direction of an officer. Id. at 1336. That officer fired repeatedly into Palmquist's arm and then, before long, at his core, eventually killing him. What the officers at the scene did not know was that Palmquist was depressed, suicidal, and had told his friends on numerous occasions that he wished to commit “suicide by police.” Id. at 1337. They also did not know that just a few hours before the neighbors' 911 call,...