September 27, 2018
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 12 CV 9447 -
Charles R. Norgle, Judge.
Flaum, Manion, and Sykes, Circuit Judges.
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.
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.
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.
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.
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
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
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.
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
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 ...