Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 04 C 8134-John W. Darrah, Judge.
The opinion of the court was delivered by: Manion, Circuit Judge.
Before EASTERBROOK, Chief Judge, and MANION and TINDER, Circuit Judges.
Arthur Brown sued Officer Duane Blackman under 42 U.S.C. § 1983 for excessive force, alleging Officer Blackman shot him without justification. The district court granted Officer Blackman sum-mary judgment, concluding that because Brown had been convicted of aggravated assault, aggravated unlawful use of a weapon, and unlawful possession of a weapon by a felon based on his encounter with Officer Blackman, Brown's current suit was barred by collateral estoppel. Brown appeals. We affirm.
On April 24, 2001, Officer Duane Blackman was patrolling the Cabrini-Green housing project in Chicago, Illinois, with his partner, Officer Aaron Long. Both officers were wearing plain clothes. During the patrol Officer Blackman spotted a man, later identified as Lazerek Grant, engaged in a suspected drug transaction with the passenger of an automobile. Another man, later identified as Jeremiah Brooks, stood near Grant during the transaction. After observing the drug deal, the officers parked their car and got out to investigate. While approaching Grant and Brooks, the officers witnessed a second similar transaction. When Grant and Brooks saw the officers approaching with their weapons drawn, they took off running. Officer Blackman chased Brooks and Officer Long went after Grant. The chase led Officer Blackman into a nearby parking lot, where he saw the plaintiff in this case, Arthur Brown. Brown was not involved in the original drug deal, but according to Officer Blackman, Brown was holding a black gun and refused to drop it even though Officer Blackman displayed his police badge and ordered him to do so. Officer Blackman maintains that Brown instead began walking backwards while pointing the gun at him. Officer Blackman claims he continued to shout for Brown to drop the weapon but when Brown failed to comply, Officer Blackman shot him, striking him several times. After Brown fell to the ground, Officer Blackman claims he pried Brown's fingers off the gun and took possession of the weapon. Brooks and Officer Long would later confirm that they saw Brown point a weapon toward Officer Blackman.
Brown had a different version of the events: Brown claimed that he did not have a gun, that Officer Blackman shot him in the back, and that after shooting him, Officer Blackman placed a "drop" gun in his hand. In support of his version, Brown pointed to a nurse's statement that he had stitches in the back of his head (although the nurse admits not knowing where the bullet entry wound was). Brown also pointed to a statement from Danyiel Larkins who claimed he observed the incident. Larkins maintained that Brown did not have a gun; that Officer Blackman shot Brown in the back after Brown ran away from the officer; and that after shooting Brown, Officer Blackman placed a gun in Brown's hand. Larkins claimed he did not know Brown before witnessing this incident and that when he attempted to tell police what he saw the night of the incident, he was told to keep his mouth shut unless he wanted to be arrested too. Brown also noted that the gun which was supposedly recovered from his possession originally belonged to another police officer, Officer Rickey Fobbs, and that while Officer Fobbs reported it stolen a few years before the shooting, Brown posited that the weapon was not really stolen, but instead became the drop weapon used by Officer Blackman.
A state court jury rejected Brown's version of events by convicting him of multiple counts of aggravated assault, aggravated unlawful use of a weapon, and unlawful possession of a weapon by a felon based on his encounter with Officer Blackman. Brown appealed his state court conviction. The state appellate court affirmed and the Illinois Supreme Court denied Brown's petition for review. Brown then filed a habeas corpus petition in federal court, but the district court dismissed that suit because Brown was no longer in custody. Brown then filed this § 1983 suit against Officer Blackman and others. Brown's complaint alleged multiple theories against multiple defendants, but the only remaining claim at issue is Brown's excessive force claim against Officer Blackman. In his § 1983 suit, Brown reiterated his version of events, claiming that Officer Blackman shot him without justification and thus used excessive force in violation of his constitutional rights. The district court granted Officer Blackman summary judgment, concluding that Brown's excessive force claim was barred by collateral estoppel. Brown appeals.
On appeal, Brown argues that the district court erred in holding that his § 1983 claim was barred by collateral estoppel. Whether a plaintiff's § 1983 claim is barred by a state court conviction is determined by the state's rules of collateral estoppel. See 28 U.S.C. § 1738; Sornberger v. City of Knoxville, 434 F.3d 1006, 1020 n. 9 (7th Cir. 2006).
Under Illinois's issue preclusion law, an issue litigated in a prior proceeding may not be relitigated if (1) the issue decided in the prior adjudication is identical with the one presented in the suit in question; (2) there was a final judgment on the merits in the prior adjudication; and (3) the party against whom estoppel is asserted was a party or in privity with a party to the prior adjudication.
Dunlap v. Nestle USA, Inc., 431 F.3d 1015, 1018 (7th Cir. 2005) (citing Herzog v. Lexington Township, 657 N.E.2d 926, 929-30 (Ill. 1995)). Moreover, under Illinois law, a criminal conviction precludes relitigation of issues that were necessarily decided in the criminal proceedings. Am. Family Mut. Ins. Co. v. Savickas, 739 N.E.2d 445, 449-51 (Ill. 2000). As the Illinois Supreme Court explained in Savickas, in a criminal case:
[T]he State must prove the defendant guilty beyond a reasonable doubt by a unanimous verdict, a greater burden than that faced by any civil litigant. The defendant may remain silent and the State is prohibited from commenting on his silence. Moreover, the defendant has the right to counsel and to a record paid for by the State on appeal.
Id. at 450. These differences, the Illinois Supreme Court found, militate in favor of giving the same preclusive effect to a criminal ...