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Green v. Junious

United States Court of Appeals, Seventh Circuit

August 28, 2019

Dallas Green, Plaintiff-Appellant,
v.
Cory Junious, et al., Defendants-Appellees.

          Argued September 27, 2018

          Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 12 CV 9447 - Charles R. Norgle, Judge.

          Before Flaum, Manion, and Sykes, Circuit Judges.

          Sykes, Circuit Judge.

         In November 2010 Dallas Green was walking through a Citgo parking lot late at night when an unmarked Chicago police vehicle turned into the lot. He began to run as the vehicle approached, arousing the suspicion of the four officers inside. One officer chased him on foot and saw him drop and pick up a handgun. Green fled into a residential neighborhood, where another officer picked up the chase and caught up with him in the backyard of a home. In the officer's version of the story, Green began to raise a gun in his direction, and the officer fired five shots in response, wounding Green in the hand and chest. Green denied that he had a gun at any time on the night in question.

         At the time of these events, Green was on probation for a felony drug conviction. A Cook County circuit judge revoked his probation, finding that Green possessed a gun during this encounter. Green thereafter sued the officers and the City of Chicago for damages under 42 U.S.C. § 1983 alleging a multitude of federal constitutional and state-law violations. The claims against the officers proceeded to trial, but only one-a Fourth Amendment excessive-force claim against the officer who shot him-was ultimately submitted to the jury. The jurors returned a verdict for the officer. Green moved for a new trial, arguing primarily that the district judge improperly instructed the jury that the state court's gun-possession finding was conclusive on that factual point. The judge denied the motion.

         We affirm. The contested jury instruction was sound. Green's excessive-force claim was premised on his contention that he was unarmed during this encounter. But the state judge found that he had a gun, and that finding has preclusive effect here. Green raises other claims of error but none has merit.

         I. Background

         The whole sequence of events at issue occurred in the span of a few minutes on the night of November 15, 2010. Green was walking through the parking lot of a Citgo gas station in Chicago when an unmarked police vehicle pulled into the lot. Four officers of the Chicago Police Department's tactical unit were inside: Cory Junious, Enyinnaya Nwagwu, Steven Archer, and Ryan Winfrey. As the police vehicle approached, Green started to run in the opposite direction. Officer Nwagwu jumped out and pursued him on foot, yelling "police stop, police stop." While fleeing through the parking lot, Green dropped something and turned to pick it up. Officer Nwagwu thought it was a gun and yelled "don't pick up that gun, don't pick up that gun." When Green ignored the instruction and picked it up, Officer Nwagwu fired a shot, narrowly missing Green. Officer Archer also testified that he saw Green drop and pick up a gun.

         The pursuit continued down a residential street. As Green cut through a yard on East 87th Place, Officer Junious picked up the chase and followed him. They soon came face to face in a backyard. Their versions of the next few seconds vary considerably. Officer Junious testified that Green raised a gun toward him and then flung it to the side-"all in one sequence." As he saw Green raise the gun, the officer fired five shots in rapid succession, hitting Green in the hand and chest. Green denied that he had a gun at any time on the night in question. He testified that when he heard the officer approaching the backyard, he dropped face down on the ground and yelled not to shoot because he was unarmed. Green was handcuffed and taken to the hospital. Police recovered a black handgun two backyards away, or about 50 feet from the shooting location.

         At the time of this incident, Green was on probation for a 2009 felony drug conviction. The Cook County Circuit Court initiated revocation proceedings. The judge held a hearing and found that Green possessed a gun at the Citgo station during the confrontation with police, violating the terms of his probation.

         Green filed suit in state court against the officers and the City of Chicago seeking damages under § 1983 for multiple federal constitutional violations and additional violations of state law. The defendants removed the case to federal court. The district court dismissed most of the claims early in the litigation, including the Monell claim against the City of Chicago. See Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658 (1978). That claim, the judge said, consisted of "mere conclusory, boiler-plate allegations." Green's second amended complaint accused the officers of using excessive force in violation of the Fourth Amendment and failing to intervene to prevent the violation. Those claims were tried to a jury.

         During trial and over Green's objection, the judge gave the following instruction pursuant to Gilbert v. Cook, 512 F.3d 899 (7th Cir. 2008), instructing the jury about the preclusive effect of the state court's gun-possession finding:

Mr. Green was found guilty of violating his probation on December 16, 2014, when on November 15, 2010, he had a handgun when he was in the Citgo gas station. Under the law Mr. Green is bound by the terms of this finding. Therefore, you should not consider any statement to the contrary by Mr. Green, his lawyers[, ] or a witness, and those statements must be ignored. What you need to ...

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