NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 15, 2018*
Decided August 15, 2018
Before
MICHAEL S. KANNE, Circuit Judge
AMY C. BARRETT, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 17‐2386
JULIAN J. MILLER, Appeal from the United States District
Plaintiff‐Appellant, Court for the Eastern District of Wisconsin.
v. No. 09‐CV‐1012
ALBERT B. GONZALES, William C. Griesbach,
Defendant‐Appellee. Chief Judge.
O R D E R
Julian Miller fled from Albert Gonzales, a police officer from Kenosha,
Wisconsin, as Gonzales was questioning him about a stabbing. Gonzales and another
officer chased Miller. When Gonzales jumped over a fence, pursuing Miller in the
darkness of night, he landed on Miller’s face and broke Miller’s jaw. Miller sued both
officers, contending that Gonzales had intentionally landed on him and thus used
excessive force. A jury disagreed and returned a verdict in favor of Gonzales. Miller
* We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 17‐2386 Page 2
appeals, arguing that the district judge made erroneous rulings during the trial. Given
our deferential standard of review, we affirm the judgment.
This is the second time that we are reviewing Miller’s case. Initially, the district
court entered summary judgment for the two officers. We vacated the entry of
summary judgment for Gonzales, concluding that Miller’s testimony could allow a
reasonable jury to infer Gonzales’s intent to harm Miller. Miller v. Gonzalez, 761 F.3d 822,
827–30 (7th Cir. 2014). (The parties since have clarified that the defendant’s name is
spelled “Gonzales.”) The case returned to the district court for trial on Miller’s
excessive‐force claim against Gonzales, and the court recruited counsel for Miller.
The trial revealed the following facts. In the early hours of October 25, 2003,
police were searching for a stabbing suspect, and Gonzales came upon Miller. When
Gonzales asked Miller if he had seen anyone pass by, Miller became fidgety. Gonzales
told him to keep his hands out of his pockets and not to run. Miller did not heed these
commands and ran. Gonzales pursued Miller, who passed by another officer
investigating the stabbing. That officer, Shane Stange, joined the pursuit. Miller jumped
a low chain‐link fence and ended up in a small yard, boxed in by another fence and a
garage. Stange jumped the fence and ordered Miller to the ground. Gonzales, who was
following closely behind, heard Stange yelling at Miller and jumped over the fence to
assist him. Gonzales either landed or rolled onto Miller’s face, breaking Miller’s jaw.
The key dispute at trial involved the fence‐jumping. Miller testified that anyone
could see through the fence, so Gonzales must have seen Miller passive and motionless
on the ground. Therefore, Miller surmised, Gonzales must have purposely jumped over
the fence to land on his face. Also according to Miller, after he complained, “You didn’t
have to break my jaw,” Officer Gonzales replied, “I told you not to run.” Gonzales
testified differently. He said that he could see very little in the dark, jumped the fence in
case Miller had attacked Stange, and merely collided accidentally with Miller. Both
sides presented expert witnesses to opine about the level and trajectory of force
necessary to break Miller’s jaw; the experts agreed that Miller’s injury did not result
from someone jumping directly onto his face.
The parties sought to discredit each other in three ways. First, Gonzales
presented to the jury Miller’s differing accounts of his injury. While cross‐examining
Dr. Leon Kazarian, Miller’s expert, Gonzales’s counsel elicited testimony about
materials that the doctor used to prepare his report. These included emergency‐room
records, which reflect Miller explaining either that he could not “recall details” of the
injury or that his injury may have “occurred as a result of him falling on the ground.”
No. 17‐2386 Page 3
Miller did not object to this testimony. Second, Miller wanted to admit evidence that, in
a previous excessive‐force case in which Gonzales fatally shot a suspect, Gonzales had
changed his story about the shooting. Although that case had settled before trial, Miller
wanted to argue that the case showed that Gonzales had developed a plan or routine of
using excessive force and then lying about it. The district judge ruled that Miller could
not introduce evidence from that case. Third, Gonzales sought to introduce evidence of
Miller’s recent felony convictions for murder, armed robbery, and false imprisonment.
The judge worried that naming Miller’s crimes would unduly prejudice him, so the
judge required that any reference to Miller’s criminal history be limited to the fact that
he was currently incarcerated for multiple felony convictions.
The trial ended in a verdict for Gonzales, after the court resolved an issue about
one juror. While speaking with the district judge before closing arguments, Miller’s
counsel explained that Miller and “others … noticed that one of the jurors was dozing
off” during the first day of the two‐day trial. Counsel added that he had not “seen
anything like that” during the second day. Other than asking the court “to make a
record” of it, Miller raised no objection and asked for no relief. The judge responded
that he “didn’t notice anything … but … that doesn’t mean it didn’t occur.” The judge
saw no “basis for any action.” After entry of judgment, the judge allowed Miller to
supplement the record with two items: Miller’s statement that he saw the juror sleeping
during Gonzales’s and Dr. Kazarian’s testimonies, and a letter from his attorney
verifying that he also recalled seeing the juror with his eyes closed a couple of times.
On appeal, Miller first argues that the judge should have admitted evidence of
Gonzales’s statements from the previous excessive‐force case. Even though the district
judge gave no reason for excluding this evidence, we review the exclusion for abuse of
discretion. See Duran v. Town of Cicero, 653 F.3d 632, 644 (7th Cir. 2011). The exclusion
was reasonable. First, if Miller wanted to use the evidence to show that Gonzales was a
liar, his counsel would have had to offer “extrinsic evidence” of Gonzales’s conduct
from that case, and Federal Rule of Evidence 608(b) prohibits this. Second, if Miller
believed that this one other case suggests that Gonzales has a “plan,” see FED. R. EVID.
404(b)(2), or “routine,” see FED. R. EVID. 406, of using excessive force and then changing
his story about it, exclusion was justified under Rule 403. This rule permits exclusion of
“relevant evidence if its probative value is substantially outweighed by a danger of
… unfair prejudice.” That is the situation here. The earlier case—which involved just
one other incident—settled without any findings of fact about whether Gonzales had
indeed changed his story. Moreover, the spectacle of a fatal shooting would have likely
distracted the jury from the facts of this case. Thus, we will not disturb the district
No. 17‐2386 Page 4
court’s “substantial” discretion to exclude this evidence. Duran, 653 F.3d at 645;
see Treece v. Hochstetler, 213 F.3d 360, 363–64 (7th Cir. 2000).
Similarly, we reject Miller’s challenge to the admission of his felony convictions.
He seems to argue that the Rules of Evidence did not permit the judge to “sanitize” his
convictions by admitting them but disallowing reference to his specific crimes—it was
all or nothing, he contends, and it should have been nothing. But the Federal Rules of
Evidence presume the admissibility of Miller’s crimes. See FED. R. EVID. 609(a)(1)(A).
True, the district judge worried that naming Miller’s crimes might prejudice him. But
the compromise of admitting a sanitized version of the crimes to lessen that
prejudice—referring only to his incarceration for felonies—is permissible and often
preferred. See Old Chief v. United States, 519 U.S. 172, 174 (1997); Schmude v. Tricam
Indus., Inc., 556 F.3d 624, 627 (7th Cir. 2009). Thus the district judge did not abuse his
discretion. See Schmude, 556 F.3d at 627.
Next we take up Miller’s challenge to the admission of the statements that he
made in the emergency room after his injury. This challenge goes nowhere because
Miller did not object during trial. He must now persuade us (1) that the district judge
abused his discretion by admitting the evidence, see Flournoy v. City of Chicago, 829 F.3d
869, 876 (7th Cir. 2016); (2) that the error was plain; and (3) that, this being a civil case
where plain error is almost never found, “extraordinary circumstances” justify reversal,
Williams v. Dieball, 724 F.3d 957, 963 (7th Cir. 2013). He cannot. He cites to nothing
extraordinary in this case, and we see nothing that plainly required the trial judge to
exclude unobjected‐to, brief testimony about Miller’s statements in the hospital.
Miller next challenges the district court’s instructions to the jury. He focuses on
the instruction about the elements of an excessive‐force claim under the Fourth
Amendment. Plain‐error review again applies, as Miller never objected to the
instructions at trial. See FED. R. CIV. P. 51(d)(2); Walker v. Groot, 867 F.3d 799, 803 (7th Cir.
2017). Miller seems to contend that the instructions improperly required him to prove
that Gonzales intended to use force. But a claim of excessive force does require proving
the defendant’s intent to use force—force must have been “purposely or knowingly
used.” Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015). The Seventh Circuit’s pattern
jury instruction, which the district judge used, incorporates this standard. See FEDERAL
CIVIL JURY INSTRUCTIONS OF THE SEVENTH CIRCUIT 7.09 & cmt. a, 7.10 (2017). No plain
error results from using a pattern instruction that reflects the current state of the law.
Finally, we deal with Miller’s contention that he was denied a fair trial because of
a juror who may have fallen asleep. A “court has considerable discretion in deciding
No. 17‐2386 Page 5
how to handle a sleeping juror.” United States v. Freitag, 230 F.3d 1019, 1023 (7th Cir.
2000). Miller’s counsel did not object or request any remedy (like questioning the juror),
but instead informed the judge that he merely wished to “make a record.” The judge’s
decision not to take action in light of counsel’s acquiescence is therefore reviewed for
plain error. See Perry v. City of Chicago, 733 F.3d 248, 253–54 (7th Cir. 2013). When
counsel raised the issue, he told the judge only that the juror may have “dozed off” for
some unspecified period of time. With no further information about the juror’s ability
or inability to perform his duties (the judge himself having not seen it), the judge did
not plainly err by declining to order a new trial sua sponte. See Freitag, 230 F.3d
at 1023–24. It is true that Miller later filed a statement about the extent of the juror’s
sleepiness, but he did so after judgment was entered and without asking for relief from
the judgment or a new trial. Once again, the judge did not plainly abuse his discretion
by not reopening the judgment on his own to address Miller’s belated allegations.
See Eskridge v. Cook Cty., 577 F.3d 806, 809 (7th Cir. 2009) (noting that relief from
judgment is “extraordinary remedy”).
AFFIRMED