Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 08 C 2735--John W. Darrah, Judge.
The opinion of the court was delivered by: Rovner, Circuit Judge.
Before BAUER, ROVNER, and SYKES, Circuit Judges.
Efrain Sanchez sued the City of Chicago and two of its police officers, Rick Caballero and Matthew Peterson, pursuant to 42 U.S.C. § 1983. Sanchez alleged that Caballero and Peterson had falsely arrested him, employed excessive force against him during the arrest, and failed to intervene in the misconduct of one another and other unnamed officers in connection with the arrest--all in contravention of his Fourth Amendment right to be secure in his person from unreasonable seizures. See Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865 (1989). He also asserted state- law claims for battery, respondeat superior, and indem- nification, although he ultimately dismissed these claims voluntarily. The federal claims were tried to a jury, which found in the defendants' favor. Sanchez now appeals, contending that the district court com- mitted various errors in connection with the trial. Although the parties and the court at times appear to have misapprehended the prospective liability of the defendants for the acts of the unnamed officers, and although the jury was not properly instructed as to the potential liability of Officers Caballero and Peterson for failing to intervene in the alleged wrongdoing of the unnamed officers, we conclude that none of the errors that Sanchez has preserved for appeal warrants reversal. We therefore affirm the judgment.
The claims in this case arise from an encounter that the Chicago police had with Sanchez and his brother in the early hours of April 5, 2008. Sanchez testified that he and his brother Jose and two of their friends, Israel Cabral and Alex Castillo, were gathered outside of Jose's house awaiting the arrival of one or more women they had met at a party earlier in the evening. Around the time that one of these women, Valerie Rodriguez, showed up, three unmarked police cars pulled up in front of the house and officers demanded to know what the men were doing outside. Jose explained that they had been waiting for Rodriguez. Evidently not satisfied with the explanation, the officers ordered the men to place themselves against one of the cars, empty their pockets, and place the contents onto the top of the car; the men were then subjected to a pat-down. Jose protested that the officers had no right to search them. Officer Caballero, whom Jose recognized from Cabal-lero's off-duty work as a security guard at a restaurant where Jose worked, seized the keys to Jose's house (which Jose had removed from his pocket and placed on top of the car) and walked toward the dwelling. Sanchez protested that Caballero had no right to enter the house without Jose's permission. A swearing match ensued between the officers and Sanchez, who was placed in handcuffs. According to Sanchez, Caballero, just before he entered Jose's house, nodded his head at a group of four or more officers who were standing near Sanchez; those officers then began to force Sanchez into a nearby alley. When Sanchez resisted, the officers kicked his legs out from underneath him and forced him to the pavement. Sanchez testified that the officers then began to hit and kick him, ignoring the protests of Jose and Rodriguez. Jose made a 911 call on his cell phone to report that the police were beating his brother. Caballero, who by this time had emerged from the house, picked Sanchez up off the ground, and the police left the scene without arresting anyone.*fn1
Caballero and Peterson gave a significantly different account at trial. Caballero testified that he was on patrol with Peterson when they saw Sanchez fighting with his brother outside of Jose's home: "What I observed was the two brothers entangled in a combative wrestling type hold." R. 167-1 at 7. The officers stopped to break up the fight. Sanchez, whose face was bloodied, was placed in handcuffs, and all four of the men present were patted down. Caballero said he was so familiar with the Sanchez brothers that he did not ask either of them to produce identification. The officers decided there was no point in making an arrest and left the scene. They later filled out contact cards docu- menting the encounter which omitted any mention of a fight. Caballero wrote as the reason for the encounter that Jose had been "loitering"; whereas Peterson wrote that Sanchez had "made a suspicious movement as if to conceal something." Id. at 24, 25-26.
Sanchez's second amended complaint sought relief from Caballero, Peterson, "as yet unknown" Chicago police officers, and the City itself. R. 96 at 1 ¶ 3. As relevant to this appeal, the complaint alleged that the individual police officers had violated Sanchez's Fourth Amend- ment rights by arresting him without probable cause, employing excessive force in arresting him, and failing "to intervene and lessen or prevent the illegal stop, search, illegal seizure, and use of excessive force inflicted upon plaintiff ." Id. at 8 ¶ 35. A companion state claim alleged that the officers were also liable for battery and unlawful detention under the common law of Illinois. The complaint also alleged that under Illinois law, because the officers were acting within the scope of their employment when they tortiously injured Sanchez, the City was responsible for the acts of the officers pursuant to the doctrine of respondeat superior.
These claims were presented to a jury over the course of a five-day trial. Before the jury retired to consider its verdict, however, Sanchez voluntarily dismissed all of the state-law claims. The jury found in favor of Caballero and Peterson on each of the federal claims against them. Sanchez now appeals, contending that various errors in the instructions that the court gave to the jury and in the admission of evidence entitle him to a new trial.
Before we address the particular errors that Sanchez raises on appeal, a few words are in order regarding the interplay between the alleged actions of the unidenti- fied police officers and the claims against Caballero, Peterson, and the City. This was a recurring subject of discussion and dispute among the parties and the court below, and because it has a bearing on some of the argu- ments that Sanchez has made on appeal, it behooves us to clarify the extent to which the named defendants, including the City, could be held liable for the acts of any unidentified police officer who may have been re- sponsible for the injuries of which Sanchez complained.
Sanchez was never able to identify all of the officers who he believed participated in the April 5 incident, nor could he produce evidence as to which of the officers, named or unnamed, allegedly dragged him to the alley- way, tripped and shoved him to the pavement, and kicked or otherwise struck him while he was on the ground. As relevant here, the only two officers he was able to identify were Caballero and Peterson. Both officers acknowledged that they participated in the col- lective pat-down of Sanchez and the three other men, but neither could recall whether he had frisked and/or handcuffed Sanchez. Sanchez believed that Peterson may have been one of the officers who handcuffed him (although he was not sure), and he testified that Caballero was standing behind him when he was placed in hand- cuffs. Sanchez could not say that either of those two officers actually participated in the alleged alleyway beating. By Sanchez's account, Caballero had gone into his brother's apartment before the beating commenced (albeit after Caballero nodded his head at the officers who allegedly beat him) and emerged after the beating was already in progress. Peterson, on the other hand, was allegedly standing beside Sanchez during the beating, but Sanchez could not rule Peterson in or out of the group of officers who actually struck him. Apart from the alleged beating, Sanchez asserted only that either Caballero or Peterson handcuffed him at the beginning of the encounter, and may have used excessive force in doing that.
Although Sanchez was not able to identify the other officers involved in the encounter, his claims against both Caballero and Peterson, as well as the City, none- theless were premised in significant part on the actions of the unidentified officers. It goes without saying that Caballero and Peterson would be liable to Sanchez for their own acts: so if they deliberately and unnecessarily kicked Sanchez, for example, they would be liable for that use of excessive force. But Sanchez also contended that even if officers other than Caballero and Peterson committed such wrongful acts, Caballero and Peterson could be liable for the failure to intervene and stop their fellow officers from violating Sanchez's rights. See Miller v. Smith, 220 F.3d 491, 495 (7th Cir. 2000); Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994); Byrd v. Brishke, 466 F.2d 6, 10-11 (7th Cir. 1972). In fact, as we have noted, Sanchez's second amended complaint included an express claim against the named officers for their failure to intervene in the alleged wrongdoing of their brethren. R. 96 at 8 (Count IV). Furthermore, Sanchez argued that Illinois law rendered the City liable under the doctrine of respondeat superior for the wilful and wanton acts of its police officers, even if those officers remain unidentified. See Williams v. Rodriguez, 509 F.3d 392, 405 (7th Cir. 2007). Sanchez's complaint, as we have noted, thus included a respondeat superior claim. R. 96 at 12 (Count X).*fn2
Although these theories had ample legal support, the district judge at first expressed a disinclination to allow Sanchez to pursue relief against one or more of the named defendants based on the acts of any unidentified police officer. The judge's primary concern appeared to be that Sanchez not attempt to pursue a judgment against any unnamed officer. See R. 166 at 4-6; e.g., Eison v. McCoy, 146 F.3d 468, 471-72 (7th Cir. 1998) (plaintiff cannot seek relief against officer whose identity is not ascertained until after the statute of limitations has run). But the judge also made more sweeping remarks suggesting that he would not permit Sanchez's coun- sel to so much as mention any unnamed officer. R. 166 at 5-6. When Sanchez's counsel attempted to explain why, in his view, both the City and the named officers could be liable based on wrongs committed by unnamed police officers, he was cut off. Id. at 4-5.
Later in the trial, however, the court signaled its under- standing that the City could bear respondeat superior liability under state law for the wrongful acts of its police officers, and that Peterson and Caballero could be liable under section 1983 for their failure to intervene in the wrongful acts of their unnamed colleagues. The judge, for example, indicated that he would instruct the jury as to respondeat superior liability, and he solicited proposed instructions as to the City's liability under state law for the acts of its unidentified officers.
R. 169-1 at 64. And the battery instruction subsequently approved by the court indicated that the City could be liable for the actions of unidentified police officers.
R. 155 at 29-30. The court also indicated that the verdict form would inquire whether Caballero, Peterson, or one or more unidentified officers had committed a battery upon Sanchez. R. 169-1 at 92-93. Moreover, while dis- cussing the jury instructions as to the section 1983 claims, the court appeared to agree with Sanchez's counsel that Caballero and/or Peterson could be liable for the failure to intervene in the misconduct of the unnamed officers:
What Mr. Cerda is saying . . . [is] in this case personal involvement could extend to failing to intervene. So theoretically, the jury could convict these two officers of failing to ...