Robinson v. City of Harvey

• Decision Date: 12 June 2007
• Docket Number: No. 04-3993.,No. 05-1192.,04-3993.,05-1192.
• Citation: 489 F.3d 864
• Parties: Archie ROBINSON, Plaintiff-Appellee, v. CITY OF HARVEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

489 F.3d 864

Archie ROBINSON, Plaintiff-Appellee, v. CITY OF HARVEY, Defendant-Appellant.

No. 04-3993.

No. 05-1192.

United States Court of Appeals, Seventh Circuit.

Argued December 5, 2006.

Decided June 12, 2007.

Jon Loevy (argued), Michael Kanovitz, Arthur Loevy, Russell Ainsworth, Loevy & Loevy, Chicago, IL, for Plaintiff-Appellee.

Thomas G. DiCianni, Ancel, Glink, Diamond, Bush, DiCianni & Krafthefer, Chicago, IL, for Defendant-Appellant.

Before FLAUM, WOOD, and EVANS, Circuit Judges.

EVANS, Circuit Judge.

This is quite a case. Soon after 19-year-old Archie Robinson was shot by a City of Harvey police officer who said he acted in self-defense because Robinson was pointing a gun at him, rumors began to circulate that the officer's story was a lie. The truth, according to the rumors, was that Robinson was unarmed and that a gun, alleged to be his and found at the scene, was planted by police to cover up an unjustified shooting. Whether the rumors were true or not was the subject of two civil jury trials (and, inferentially at least, one criminal trial), with the bottom line being that Robinson was framed. So what we have here is a rather explosive case. But we must put its interesting questions off to the side (and perhaps they will stay there) for the time being, because the primary issue we must first address is a yawner: appellate jurisdiction. Nevertheless, to put the dispute in context, we briefly recount a few of the facts (there are many more facts about which we will say nothing) that emerged from the lengthy litigation that grew out of Robinson's shooting.

Juries and judges often hear two sides of the same story. And so it is here. We start with the version advanced by the City of Harvey.

Manuel Escalante, a City of Harvey police officer, was working with a "gang and narcotics unit" on September 3, 1997. Two other officers, White and Williams, were with him. After arriving near the intersection of 147th and Vail Streets in Harvey, the officers separated, and a moment or two later Escalante saw two men (Robinson and Anthony Reynolds) running through a pathway between two buildings in the area of a six-foot-high fence. Escalante says he engaged Reynolds in a scuffle and that Robinson, who had been ordered to stop running, failed to do so and instead joined the scuffle by "jumping on top" of him. Robinson, after being pushed away, started to scale the fence and, while doing so, pulled out a handgun and pointed it at Escalante's face. Escalante ordered Robinson to "drop the gun" but he didn't comply. Escalante then fired one shot, in self-defense, which struck Robinson in the back buttocks area. Order was restored a short time after Robinson was hit.

According to Robinson, Escalante's claim is a pack of lies. Robinson says he and Reynolds were talking when they saw someone running towards them. They tried to flee. When they got to the fence, with Escalante in pursuit, Reynolds went over and Robinson got near the top. At that moment, Escalante shot him. Robinson said he didn't have a gun, never had any physical contact with Escalante, and no warning preceded the shot.

So, who is to be believed? Major cracks in Escalante's version of the event soon appeared. Williams, one of the officers with Escalante, told another officer (Jelenewski) that the Robinson shooting was "bogus." He said he never saw Robinson with a gun, saw none on the ground soon after the shooting, and didn't hear Escalante tell Robinson to "drop the gun."

And then there's the gun. The night before the shooting, Escalante, Williams, Jelenewski, and another officer, Edison Torres, participated in a raid in which a police report indicated that five guns were seized, though only four were accounted for at the police station and only three were eventually logged into evidence. What happened to the guns that were not accounted for? Williams said that he saw Torres approach Escalante inside the secured area of the Robinson shooting and that Torres later showed him that there was a gun on the ground. Torres denied showing Williams the gun, though the City's answers to interrogatories identify him as the person who found it. Finally, the gun recovered at the scene was a cheap model with a broken grip handle. It carried no usable fingerprints. It was the perfect candidate, according to Harvey's own police chief (Robinson says this occurred in "a moment of uncommon candor") to be used as a "drop gun" or a "throwaway gun."

Robinson was eventually charged with carrying a gun without the requisite paperwork. The prosecution introduced a gun into evidence but offered no witnesses to testify about its recovery, and Robinson was acquitted after a bench trial. He then sued Escalante and the City of Harvey, invoking Illinois common law and 42 U.S.C. § 1983 to allege malicious prosecution by Escalante and a violation of his constitutional right to not be the victim of excessive force.

A jury found for Robinson on the malicious prosecution claim but rejected his excessive force claim. Robinson moved for a new trial, pointing out that the jury's malicious prosecution verdict required concluding that there was no probable cause to believe he had a gun, making it impossible to also find that Escalante's use of deadly force was reasonable under the circumstances. The district court agreed that the verdicts were fatally inconsistent, and on February 22, 2002, a new trial was ordered. The new jury found for Robinson on both counts, and he was awarded $275,000 in compensatory and punitive damages. He later petitioned for attorneys fees under 42 U.S.C. § 1988. When a new district court judge assigned to the case awarded approximately $375,000 in fees, Robinson moved for reconsideration, and on October 20, 2004, the judge reversed his decision and awarded some $507,000. Harvey now appeals both the district court's grant of a new trial and the fee award.

It goes without saying that a timely notice of appeal is essential to appellate jurisdiction, Barrow v. Falck, 977 F.2d 1100, 1103 (7th Cir.1992). A party is generally required to file a notice of appeal with the district court within 30 days after the order appealed from is entered, see Fed. R.App. P. 4(a)(1)(A), although that time may be extended to a limited degree if a party moves for more time within 30 days after the original time period has expired — a situation not presented here. See Fed. R.App. P. 4(a)(5). Harvey filed its appeal on November 17, 2004 (Escalante has settled his part of the case), clearly giving us jurisdiction to consider the fee award. But as we shall see, we do not have jurisdiction to review the February 22, 2002, trial order.

Because the February 22 order granting the new trial was not appealable as a final order within the meaning of 28 U.S.C. § 1291, Juneau Square Corp. v. First Wis. Nat'l Bank of Milwaukee, 624 F.2d 798, 806 (7th Cir.1980), Harvey's appeal on that issue is really an appeal of the July 30, 2002, judgment entered following the second trial. Absent a valid extension, Harvey therefore had until August 29, 2002, to file a timely notice of appeal — a deadline two years before the November 2004 filing we now consider.

The City maintains that its time for appeal was validly extended under Federal Rule of Appellate Procedure (FRAP Rule) 4(a)(4)(A), which enumerates six categories of post-trial motions that when filed extend the appeal deadline until their resolution. Harvey first directs us to Rule 4(a)(4)(A)(iii), which describes what the Second Circuit has called a "Rule 58/54/59 order," Mendes Junior Int'l Co. v. Banco Do Brasil, 215 F.3d 306, 312 (2d Cir.2000), a term we will use here. As explained by Rule 58(c)(2) of the Federal Rules of Civil Procedure (the Civil Rules):

When a timely motion for attorney fees is made under Rule 54(d)(2), the court may act before a notice of appeal has been filed and has become effective to order that the motion have the same effect under Federal Rule of Appellate Procedure 4(a)(4) as a timely motion under Rule 59.

The City argues that a December 17, 2002, minute order granting Harvey's motion to extend the time for appeal was a proper Rule 58/54/59 order that, in accordance with FRAP Rule 4(a)(4), delayed the running of the time for appeal of the new trial order until Robinson's fee motion was finally resolved on October 20, 2004.

But there are several flaws in this argument. First, the plain language of Rule 58(c)(2) only authorizes the court to make a Rule 58/54/59 order "[w]hen a timely motion for attorney fees is made." At the time of the December 17 order, Robinson had not yet made his fee motion (he did not do so until August 14, 2003), meaning that the district court lacked the authority to enter the order (insofar as it dealt with extending the time to appeal) in the first place. Mendes, 215 F.3d at 313.

Second, the December 17 Rule 58/54/59 order was entered long after the August 29 deadline. Harvey suggests that this is not a problem because the district court's Local Rule 54.3(b) extends to 90 days the Rule 54(d)(2)(B) default rule providing a 14-day time period after judgment is entered to file a fee petition. But that argument ignores both that Local Rule 54.3(c) expressly provides that "[t]he filing of a fee motion shall not stop the running of the time for appeal of any judgment on which the motion is founded," and that Civil Rule 58(c)(1) makes clear that the time for appeal cannot be extended in anticipation of a fee petition. More generally, Harvey's theory neglects the well-established principle that "[t]he power of the federal courts to extend the time limits on the invocation of appellate jurisdiction is severely circumscribed." Mendes, 215 F.3d at 312. In the end, the City can prevail only if we read Rule 58(c)(2) to permit a district court judge to enter a Rule 58/54/59 order anytime after a fee petition has been filed and is still pending, regardless of whether the 30-day time period to...