In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17‐3466
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
MARCO PROANO,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:16‐cr‐00590‐1 — Gary Feinerman, Judge.
____________________
ARGUED OCTOBER 23, 2018 — DECIDED JANUARY 7, 2019
____________________
Before KANNE, HAMILTON, and ST. EVE, Circuit Judges.
ST. EVE, Circuit Judge. On‐duty officer Marco Proano fired
sixteen shots at a moving sedan filled with teenagers until the
car idled against a light pole. He hit two passengers. The gov‐
ernment charged Proano with two counts of willful depriva‐
tion of constitutional rights, one for each injured passenger,
and a jury convicted on both counts. 18 U.S.C. § 242. Proano
appeals, claiming both pretrial and trial errors. We affirm.
2 No. 17‐3466
I. Background
A. The Shooting
Around 5:00 p.m. on December 22, 2013, two Chicago Po‐
lice Department (CPD) officers, Ken Flaherty and Jonathan
Morlock, stopped a gray Toyota Avalon on Chicago’s
southside. The Toyota had just sped out of an alley. The driver
fled on foot, leaving one passenger in the front seat and four
or five (as far as Flaherty could tell) in the backseat. Morlock
pursued the driver; Flaherty stayed with the Toyota. Before
fleeing, the driver did not, apparently, put the car in park, and
it rolled toward Flaherty and his squad car. The Toyota
wedged itself between Flaherty’s squad car and another car
parked on the street.
Jaquon Grant had been in the passenger seat. He too tried
to escape as the car rolled forward, but his legs got stuck be‐
tween Flaherty’s squad car and the Toyota. Grant tried to
break free, and Flaherty assured him that when backup ar‐
rived Flaherty would assist him. Flaherty shouted commands
to the other passengers—“stay still,” “quit moving”—but
they did not obey. One passenger, thirteen‐year‐old Kevon
Brown, attempted to flee, but stopped while hanging out of
an open backseat window, with his head above the roof. Fla‐
herty dispatched for backup.
Moments later, Proano and his partner, Guy Habiak, ar‐
rived in their squad car. Proano exited the car, with his
weapon in one hand, cocked, and aimed at the Toyota. Sec‐
onds later, Delquantis Bates, who had been in the back seat of
the Toyota, reached over the center console and pressed his
hand on the gas pedal. The car, still wedged, revved but did
not move. Bates then put the car in reverse and pressed the
No. 17‐3466 3
pedal again. The Toyota jolted free and began to reverse. No
one was in its path.
As the car retreated, three things happened: a metal BB
gun fell to the ground from the Toyota, Grant freed himself,
and Proano began shooting at the Toyota. Flaherty quickly
apprehended Grant. Habiak picked up the gun and handed it
to Flaherty, saying “Gun. Here’s the gun. Here’s the gun.”
And Proano continued to shoot at the Toyota as it stopped,
pivoted, and rolled forward into a light pole. Ten of Proano’s
sixteen bullets entered the Toyota. One bullet hit Bates’s
shoulder, while others grazed his face. Two bullets hit another
passenger, David Hemmans, in his leg and foot. No other of‐
ficer fired his weapon.
After the shooting, Proano completed two Tactical Re‐
sponse Reports, forms upon which the CPD relies to docu‐
ment use‐of‐force incidents. On both forms, Proano admitted
to firing his weapon sixteen times. He indicated that he did so
because an “assailant” presented an “imminent threat of bat‐
tery” and so he “use[d] force likely to cause death or great
bodily harm.” The assailant’s weapon, according to Proano’s
reports, was an “automobile.” Proano did not identify the BB
gun as a contributing factor in his decision to shoot in the re‐
ports. Still on the scene, however, Proano informed CPD de‐
tective Stanley Kalicki that he heard one of the other on‐site
officers identify a gun. Proano also told Kalicki that he fired
his weapon because he feared for Brown, who, according to
Proano, “was being dragged” by the Toyota.
Months later, Proano discussed the shooting with the In‐
dependent Police Review Authority (IPRA)—a now‐defunct
body, which at the time investigated allegations of police
4 No. 17‐3466
misconduct.1 In March 2015, IPRA Investigator Dennis Prieto
met with FBI agents to discuss the shooting. No one involved
in that meeting believed that they discussed Proano’s state‐
ments to IPRA. The FBI agents received material from Prieto,
including documents reflecting Proano’s statements to IPRA
investigators. The FBI agents then passed those documents to
the government’s “filter team” for review.
B. The Prosecution
On September 15, 2016, a grand jury returned a two‐count
indictment against Proano for willfully depriving Bates and
Hemmans of their constitutional rights—namely, their Fourth
Amendment right to be free from unreasonable force—in vi‐
olation of 18 U.S.C. § 242.
Proano filed a motion to dismiss the indictment. He ar‐
gued that the FBI agents’ meeting with Investigator Prieto led
to the disclosure of statements protected by Garrity v. New Jer‐
sey, 385 U.S. 493 (1967) (a decision we explain below), and that
the disclosure tainted the prosecution against him. The dis‐
trict court held a hearing, in which Prieto and the FBI agents,
Larissa Camacho and Eugene Jackson, testified. The district
court then denied Proano’s motion on two independent
grounds. First, it found no evidence of “seepage or taint” of
Proano’s Garrity‐protected statements in the prosecution. Sec‐
ond, the district court found “legitimate independent
sources” for any information the government could have
gleaned from Proano’s Garrity‐protected statements,
1
Because Proano’s statements to IPRA are immune under Garrity v. New
Jersey, 385 U.S. 493 (1967), and because resolution of this appeal does not
require delving into the specifics of Proano’s statements, we are intention‐
ally vague about their contents.
No. 17‐3466 5
assuming the government had seen them. The case proceeded
to trial.
Before trial, Proano moved in limine to exclude evidence
relating to his training on CPD policies and procedures. He
submitted that such evidence was irrelevant and that the gov‐
ernment’s witnesses—Sergeant Larry Snelling and officer
Vincent Jamison, neither of whom recalled training Proano—
lacked sufficient personal knowledge to testify regarding the
training Proano received. The government filed a reciprocal
motion in limine, asking the court to exclude evidence of
Proano’s training on when use of force was appropriate under
state law. The district court resolved the relevance of both
pieces of evidence with the same stroke—both parties could
use their respective training‐related evidence either to help
prove or disprove that Proano acted willfully. Proano, specif‐
ically, could argue that his actions comported with his state‐
law training, and so he thought them reasonable; the govern‐
ment, meanwhile, could argue that Proano’s actions violated
his CPD training, which could be relevant to his state of mind.
The district court reserved ruling on the foundational ques‐
tion. It also deferred on resolving questions about the rele‐
vance of certain training‐related evidence, such as whether
Proano was trained not to fire into a crowd or buildings.
Trial began on August 21, 2017, and lasted six days.
Among other government witnesses, Flaherty, Bates, and
Brown described what occurred the night of the shooting;
Kalicki explained Proano’s statements after the shooting; and
CPD Sergeant Timothy Moore detailed Proano’s post‐shoot‐
ing reports. Snelling and Jamison also testified.
Snelling described the CPD’s use‐of‐force policies, which
he taught at the academy. He could not testify with certainty
6 No. 17‐3466
that he taught Proano. He was, however, familiar with the
training that recruits received when Proano was a recruit at
the academy, because trainers used a “common curriculum”
and often sat in on each other’s classes to ensure consistent
messaging. Regarding the CPD’s training, Snelling testified
that use of deadly force is appropriate only when an assailant
is likely to cause death or serious physical injury. Snelling tes‐
tified that recruits learn not to shoot into buildings, windows,
or openings without clear visibility, and they learn not to
shoot into crowds. Snelling also testified that recruits learn
not to fire at a moving vehicle unless doing so is necessary to
protect the life of another.
Jamison testified about firearms training, which he over‐
saw at the academy. He too could not recall whether he per‐
sonally trained Proano, but Jamison stated that every firearms
instructor at the academy works from the same preapproved
lesson plans. Jamison testified that recruits learn to hold a
weapon with two hands absent necessary circumstances, and
they learn never to point a gun merely as a show of force. CPD
firearms instructors also taught recruits to stop and “assess”
whether a threat is ongoing after firing a few shots, though he
also testified that recruits learn to shoot “to eliminate the
threat.”
In addition to this testimony, the government introduced
video footage of the shooting. The footage, taken from
Proano’s dashcam, showed the shooting unobstructed and in
its entirety. The jury saw real‐time and slow‐motion versions
of the footage.
At the close of evidence, the parties discussed and debated
jury instructions. Only one instruction‐related debate is rele‐
vant here: Proano proposed a (lengthy) instruction on
No. 17‐3466 7
“willfulness,” the necessary mens rea for § 242, but the district
court rejected it as redundant and confusing. The district
court, instead, instructed the jury on willfulness using an in‐
struction it crafted with the parties’ input.
After closing arguments and deliberation, the jury con‐
victed Proano on both counts. The district court later denied
Proano’s posttrial motion, ruling in part that the court had
properly admitted Snelling’s and Jamison’s testimony and
that the government had laid an adequate foundation for their
respective testimony. The district court then sentenced
Proano to sixty months in prison. This appeal followed.
II. Discussion
Proano challenges four issues on appeal: (1) the denial of
his Garrity motion; (2) the admission of training and policy
evidence; (3) the accuracy of the jury instruction on willful‐
ness; and (4) the sufficiency of the evidence. We take each
challenge in turn.
A. The Garrity Motion
Proano first claims that the government violated his rights
under Garrity. The Fifth Amendment assures defendants that
they will not be compelled to testify against themselves. Gar‐
rity expounded upon that general right in a particular context,
that of public‐official investigations. Garrity held that when a
public official must choose between cooperating in an internal
investigation or losing his job, the statements he makes dur‐
ing the investigation are compelled, and, as such, they cannot
later be used against the official in a criminal trial. 385 U.S. at
500. In deciding whether the government violated Proano’s
rights under Garrity, we review the district court’s legal
8 No. 17‐3466
conclusions de novo and its factual findings for clear error.
United States v. Cozzi, 613 F.3d 725, 728 (7th Cir. 2010).
Proano’s Garrity challenge does not get far. He spoke to
IPRA under the threat of job loss, and his statements were
thus compelled and Garrity‐protected. But after that his chal‐
lenge fails, in three different ways.
First, federal investigators and prosecutors cannot misuse
Garrity‐protected statements if they are never exposed to the
statements. See id. at 732. The government, in this case, set up
a filter team to receive and review IPRA’s materials. The filter
team then redacted any protected statements before handing
the materials over to the prosecution team. No evidence sug‐
gests that this process was flawed or that Garrity‐protected
statements slipped through. The district court also found that,
despite some ambiguous evidence, the FBI agents and the
IPRA investigator did not discuss Proano’s statements during
the March 2015 meeting. As a result, the district court found
that there was no “seepage or taint” of Proano’s Garrity‐pro‐
tected statements to the FBI agents or the prosecution team.
Proano’s only challenge to this conclusion of fact is to rehash
evidence thoroughly considered and weighed by the district
court. That is not clear error.
Second, even if the prosecution could have accessed
Proano’s protected statements, there is no constitutional vio‐
lation if the government can establish “a legitimate source
wholly independent of the compelled testimony” for the evi‐
dence. Kastigar v. United States, 406 U.S. 441, 460 (1972); see also
United States v. Velasco, 953 F.2d 1467, 1474 (7th Cir. 1992).
Here, the district court specifically found that the dashcam
video, other witness accounts, and police reports all provided
independent bases from which the prosecution could have
No. 17‐3466 9
learned of the facts Proano described in his Garrity‐protected
statements. Proano makes no attempt to demonstrate that
these findings were clearly erroneous.
Third, Proano misunderstands Garrity’s protections. He
argues a syllogism: Investigator Prieto knew of the Garrity‐
protected statements, and Prieto’s meeting with the FBI
agents prompted the federal investigation; thus, the investi‐
gation made derivative use of the Garrity‐protected state‐
ments. This reasoning is interrupted by the district court’s
findings that Prieto did not disclose Garrity‐protected state‐
ments and that, even if he did, there were independent
sources for the information. What survives of Proano’s argu‐
ment is only the theory that Prieto tainted the prosecution
with Garrity‐protected statements simply by knowing of the
statements and meeting with FBI agents. That does not fol‐
low, as a matter of logic or law. As we said in Cozzi, we “are
not concerned with how” an investigator who knows of Gar‐
rity‐protected statements “may have influenced the federal
investigation, but rather how [the defendant’s] statements in‐
fluenced the investigation.” Cozzi, 613 F.3d at 731 (emphasis
in original). The district court did not clearly err in concluding
that Proano’s statements did not reach the investigators and
prosecutors.
B. Admissibility of the Training and Policy Evidence
Proano next claims that the district court made three er‐
rors in admitting evidence of his training and the CPD’s poli‐
cies. He argues: (1) the evidence was irrelevant; (2) it was un‐
fairly prejudicial and confusing; and (3) Snelling and Jamison
did not establish an adequate foundation to testify to the evi‐
dence. We review evidentiary rulings for an abuse of discre‐
tion. United States v. Parkhurst, 865 F.3d 509, 513 (7th Cir. 2017).
10 No. 17‐3466
We will reverse a ruling only if no reasonable person would
agree with the district court’s view. United States v. Ajayi, 808
F.3d 1113, 1121 (7th Cir. 2015).2
1. Relevance Under Rule 401
Proano’s position on the relevance of the training and pol‐
icy evidence has evolved during this appeal. In his papers, he
thought such evidence irrelevant to show intent as a matter of
law. At oral argument, he submitted that the specific evidence
used at trial was inadmissible. Both positions are mistaken.
To be admissible, evidence must be relevant. Fed. R. Evid.
402. To be relevant, evidence must tend to make a fact of con‐
sequence at trial more or less probable. Fed. R. Evid. 401. This
is a “low threshold.” Tennard v. Dretke, 542 U.S. 274, 285 (2004);
see also United States v. Boros, 668 F.3d 901, 907 (7th Cir. 2012).
The Federal Rules of Evidence do not permit only decisive,
controlling, or the “most” probative evidence. United States v.
McKibbins, 656 F.3d 707, 711 (7th Cir. 2011). If evidence can
help jurors answer the questions they must ask, the Rules per‐
mit its admissibility in the absence of a rule or law to the con‐
trary. Fed. R. Evid. 402; United States v. Causey, 748 F.3d 310,
316 (7th Cir. 2014).
The government charged Proano with violating 18 U.S.C.
§ 242. Section 242 prohibits the willful deprivation of rights
under color of law, and individuals (Bates and Hemmans in‐
cluded) have the Fourth Amendment right to be free from un‐
reasonable uses of deadly force. Tennessee v. Garner, 471 U.S.
1, 10–11 (1985). The two most pressing questions for the jury,
2
Because the district court did not abuse its discretion in admitting evi‐
dence of Proano’s training, for reasons that follow, we need not consider
whether any error was harmless. Fed. R. Crim. P. 52(a).
No. 17‐3466 11
then, were whether Proano used deadly force unreasonably
and, if so, whether he did so willfully. The district court ruled
that Proano’s intent—willful or not—was the fact that could
be made more or less probable by evidence of Proano’s train‐
ing. That decision was not an abuse of discretion.
We have before recognized that evidence of departmental
policies can be relevant to show intent in § 242 cases. United
States v. Aldo Brown, 871 F.3d 532, 538 (7th Cir. 2017); United
States v. David Brown, 250 F.3d 580, 586 (7th Cir. 2001). Other
circuit courts have as well. United States v. Christopher A.
Brown, 654 F. App’x 896, 910 (10th Cir. 2016); United States v.
Rodella, 804 F.3d 1317, 1338 (10th Cir. 2015); United States v.
Dise, 763 F.2d 586, 588 (3d Cir. 1985). Those decisions, ex‐
pressly or impliedly, acknowledge that an officer’s training
can help inform his state of mind in certain circumstances. If,
for example, an officer has been trained that officers should
do certain things when confronted with tense situations, and
he does those things, the fact that he acted in accordance with
his training could make it less likely that he acted willfully.
See Aldo Brown, 871 F.3d at 538. And vice versa: If, as here, an
officer has been trained that officers should not do several
things when confronted with tense situations, yet he does
those things anyway, the fact that he broke from his training
could make it more likely that he acted willfully. The district
court correctly accounted for both sides of the coin, admitting
both Proano’s and the government’s proposed training‐re‐
lated evidence.
Proano nevertheless argues that the government’s evi‐
dence of his training was inadmissible, relying mostly on
Thompson v. City of Chicago, 472 F.3d 444 (7th Cir. 2006).
Thompson concerned 42 U.S.C. § 1983, and it held that the
12 No. 17‐3466
CPD’s General Orders (essentially, formal policy statements)
were not relevant to proving whether force was constitu‐
tional. Thompson, 472 F.3d at 454. This is because the Fourth
Amendment, not departmental policy, sets the constitutional
floor. Id. at 454; see also Whren v. United States, 517 U.S. 806,
815–16 (1996); Scott v. Edinburg, 346 F.3d 752, 760–61 (7th Cir.
2003). Since Thompson, however, we have clarified that there
is no per se rule against the admission of police policies or
training. Aldo Brown, 871 F.3d at 537–38; see also Florek v. Vil‐
lage of Mundelein, 649 F.3d 594, 602–03 (7th Cir. 2011) (regard‐
ing expert testimony). We explained in Aldo Brown that such
a rule would be especially excessive in the § 242 context,
where an officer’s intent is at issue and the defendant has a
constitutional right to present a defense. 871 F.3d at 538.
Thompson did not address whether evidence of police policy
or training can be relevant to intent; § 1983, unlike § 242, is a
civil statute that lacks a specific‐intent requirement. See Kings‐
ley v. Hendrickson, 135 S. Ct. 2466, 2472 (2015). Thompson there‐
fore offers no guide here.
Still, Proano presses, even if some evidence of training
may be relevant, the government’s evidence in this case was
not because it concerned CPD‐specific training. Proano seizes
on language from Aldo Brown, which said that evidence of
“widely used standardized training or practice[s]” could be
relevant to show an officer’s intent in § 242 cases. 871 F.3d at
538. Proano characterizes the CPD’s training as “localized”
and not “widely used,” and therefore not relevant. That char‐
acterization is suspect; the CPD is the second‐largest police
force in the country. David B. Goode, Law Enforcement Policies
and the Reasonable Use of Force, 54 WILLAMETTE L. REV. 371, 372
(2018). Regardless, neither Aldo Brown nor common sense lim‐
its the pool of admissible training‐related evidence of intent
No. 17‐3466 13
to national, model, or interdepartmental standards. Assum‐
ing those standards exist,3 only evidence of training that the
officer actually received can be relevant to his state of mind.
Accord United States v. Trudeau, 812 F.3d 578, 591–92 (7th Cir.
2016), cert. denied, 137 S. Ct. 566 (2016); United States v. Kokenis,
662 F.3d 919, 930 (7th Cir. 2011).
Proano’s remaining arguments go to the weight of the ev‐
idence, not its relevance. He asserts that the prohibition on
shooting into windows and crowds was not relevant because
that training did not concern cars. But as the district court rea‐
sonably concluded, four or five people in the back of a car
could constitute a crowd. Proano also asserts that his firearms
training was not relevant because that training occurred in a
controlled environment. Yet Jamison testified that the fire‐
arms training was not training for training’s sake, but rather
it was intended to have real‐word application. Proano’s argu‐
ments were ones for the jury, not us. See United States v. Firi‐
shchak, 468 F.3d 1015, 1021 (7th Cir. 2006); Williams v. Jader Fuel
Co., 944 F.2d 1388, 1403 (7th Cir. 1991).
The probative value of an officer’s training, like most any
evidence, depends on case‐specific factors. Those factors are
too many to list, but no doubt included are the training’s re‐
cency and nature, representativeness of reasonable practices,
standardization, and applicability to the circumstances the of‐
ficer faced. Whatever its ultimate strength, evidence of an of‐
ficer’s training can be relevant in assessing his state of mind.
The district court carefully assessed the evidence and the
3
Proano emphasizes that only national standards can be relevant. The
United States does not have a national police force, and Proano has not
pointed us to what more widely used policies could have been relevant
here.
14 No. 17‐3466
state‐of‐mind inquiry in this case, and it did not abuse its dis‐
cretion in admitting the evidence of Proano’s training.
2. Prejudice and Confusion Under Rule 403
A court may exclude relevant evidence if its probative
value is substantially outweighed by risks of unfair prejudice
or confusion. Fed. R. Evid. 403. Proano argues the evidence of
his training presented those risks, and that the district court
abused its discretion in not recognizing as much. Rule 403
speaks of what a district court “may” do, so we review a Rule
403 decision for abuse of discretion. More than that, a Rule
403 decision “is entitled to special deference” because only “in
an extreme case are appellate judges competent to second‐
guess the judgment of the person on the spot, the trial judge.”
United States v. Jackson, 898 F.3d 760, 764 (7th Cir. 2018).
No risk of unfair prejudice or confusion substantially out‐
weighed the probative value of Proano’s training. Proano con‐
tends that the jury could have thought the training evidence
mattered to whether his use of force was objectively reasona‐
ble, a question for which it is generally inadmissible. See Aldo
Brown, 871 F.3d at 536–37; Thompson, 472 F.3d at 454. But that
risk was minimal. At the close of evidence, the district court
instructed the jury:
You have heard evidence about training the defend‐
ant received relating to the use of deadly force. You
should not consider this training when you decide
whether the defendant’s use of force was reasonable
or unreasonable. But you may consider the training
No. 17‐3466 15
when you decide what the defendant intended at the
time he acted.4
See Rodella, 804 F.3d at 1338 (approving a similar instruction);
see also United States v. Schmitt, 770 F.3d 524, 535 (7th Cir. 2014)
(proper jury instructions can cure potential prejudice); United
States v. Albiola, 624 F.3d 431, 440 (7th Cir. 2010) (same); Fed.
R. Evid. 403 advisory committee’s notes (1972) (explaining
that limiting instructions are a factor in weighing the danger
of unfair prejudice).
Proano also contends that the training evidence was un‐
fairly prejudicial because it invited the jury to convict for
Proano’s failure to follow protocol. Proano was free to, and
did, argue to the jury that his training had little applicability
to the situation he faced, and the jury received the appropriate
instructions about what was required to convict and how to
use the evidence of his training. Proano identifies no grounds
to assume the jury believed that violating CPD policy
amounted to violating § 242.
3. Foundation Under Rule 602
Proano alternatively contends that, even if the training ev‐
idence was admissible, it was not admissible through Snelling
and Jamison because their testimony lacked the proper foun‐
dation. Specifically, Proano argues, they both lacked “per‐
sonal knowledge of the training Proano received in 2006,”
when he was in the academy. Rule 602 allows a witness to
testify “to a matter only if … the witness has personal
knowledge of the matter.” Fed. R. Evid. 602. “Evidence to
4 For good measure, district courts should provide this or a similar instruc‐
tion verbally before the parties offer a department’s policy or an officer’s
training into evidence, as well as at the close of evidence.
16 No. 17‐3466
prove personal knowledge may consist of the witness’s own
testimony.” Id.
Snelling and Jamison could not recall whether they in‐
structed Proano at the academy, but that did not make their
testimony inadmissible under Rule 602. Snelling taught use‐
of‐force procedures in (and before) 2006. By virtue of that po‐
sition, Snelling was aware of the use‐of‐force training that re‐
cruits generally received while Proano was enrolled. He testi‐
fied that he was aware of what his colleagues taught at the
time and the academy’s common curriculum because of his
“cross‐training,” a practice that ensures consistency among
instructors. Jamison, too, taught while Proano attended the
academy. He testified about the academy’s weapons training
based on his familiarity with the academy’s preapproved les‐
son plans and syllabi, from which all firearms instructors
teach. Jamison further described the firearms principles to
which he testified as “basic,” “typical,” and “standard” at the
academy.
Snelling and Jamison thus had personal knowledge of the
matters to which they testified, regarding the academy’s stock
training in 2006. It was for the jury to determine whether
Proano in fact received that training. Even if it were otherwise
and, as Proano submits, Snelling and Jamison purported to
testify regarding the training Proano actually received, the
testimony was still admissible. Personal knowledge can in‐
clude reasonable inferences drawn from a witness’s observa‐
tions and firsthand experiences. Widmar v. Sun Chem. Corp.,
772 F.3d 457, 460 (7th Cir. 2014); see also Visser v. Packer Eng’g
Assocs., Inc., 924 F.2d 655, 659 (7th Cir. 1991); United States v.
Giovannetti, 919 F.2d 1223, 1226 (7th Cir. 1990). Snelling and
Jamison each offered enough evidence of the homogeneity in
No. 17‐3466 17
the academy’s teachings (facts with which they had firsthand
experience) to establish their respective personal knowledge
of what Proano learned there (a reasonable inference). In ei‐
ther event, the district court did not abuse its discretion in ad‐
mitting Snelling’s and Jamison’s testimony.
C. Willfulness Instruction
Proano’s next challenge is to the district court’s jury in‐
struction on willfulness, the mens rea requirement of § 242.
We review de novo whether an instruction fairly states the
law, and we review the decision to give a particular instruc‐
tion for an abuse of discretion. United States v. Maldonado, 893
F.3d 480, 486 (7th Cir. 2018).5
Section 242 is a specific‐intent crime. Aldo Brown, 871 F.3d
at 538; David Brown 250 F.3d at 584–85. It prohibits the willful
deprivation of constitutional rights. United States v. Lanier, 520
U.S. 259, 264 (1997). The Supreme Court first addressed this
crime (though at a time when it sat in a different part of the
U.S. Code) in Screws v. United States, 325 U.S. 91 (1945) (plu‐
rality). Screws explained that a defendant need not “have been
thinking in constitutional terms” to have willfully deprived
another of a constitutional right. Screws, 325 U.S. at 106. An
officer does, though, have the requisite intent under § 242
when he “is aware that what he does is precisely that which
the statute forbids.” Id. at 104; see also id. at 103–105 (an officer
violates § 242 when he acts with “a specific intent to deprive
5
Proano submits that plain‐error review applies in assessing the district
court’s willfulness instruction. See Fed. R. Crim. P. 52(a). That is a puzzling
concession. Our review of the record suggests that he contested the in‐
struction adequately to preserve the issue for appeal, and the government
does not contend otherwise. We, therefore, will not apply plain‐error re‐
view.
18 No. 17‐3466
a person” of constitutional rights or with “open defiance or in
reckless disregard of a constitutional requirement”); see also
Aldo Brown, 871 F.3d at 538. In United States v. Bradley, 196 F.3d
762, 770 (7th Cir. 1999), we added that “to act ‘willfully’ in the
§ 242 sense, the defendant must intend to commit an act that
results” in a constitutional deprivation.
The district court in this case instructed the jury that
Proano acted willfully if he “intended to deprive” Bates or
Hemmans of their right to be free from unreasonable force. It
explained further:
The defendant acted intentionally if he used force
knowing that the force he used was more than what
a reasonable officer would have used under the cir‐
cumstances. The defendant did not act intentionally
if he did not know that the force he used was more
than what a reasonable officer would have used un‐
der the circumstances.
Proano argues that these instructions reduced the needed
mens rea and transformed § 242 into a general‐intent crime.
We disagree.
The district court’s instruction was consistent with Bradley.
The court instructed the jury that it could convict only if
Proano acted intending to violate constitutional rights. See
Bradley, 196 F.3d at 769 (approving § 242 instruction that re‐
quired a finding of an act “with the intent” to deprive consti‐
tutional rights). The instruction then went a step beyond Brad‐
ley by defining what intent meant under § 242. It explained
that Proano had the requisite intent if and only if Proano
knew his force was not reasonable and used it anyway.
There is no one definition of willfulness. Ratzlaf v. United
States, 510 U.S. 135, 141 (1994); see also United States v.
No. 17‐3466 19
Pulungan, 569 F.3d 326, 329 (7th Cir. 2009) (“‘Willfully’ is a no‐
toriously plastic word.”); Pattern Criminal Jury Instructions
of the Seventh Circuit 4.11 (2012 ed.) (willfulness is a statute‐
specific term). Yet the district court’s definition tracked how
most authorities understand the term. See, e.g., United States v.
Dobek, 789 F.3d 698, 700 (7th Cir. 2015) (willfulness in criminal
law often requires knowledge that one is violating the law)
(citations omitted). The Model Penal Code, as a prime exam‐
ple, states that willfulness is met “if a person acts knowingly
with respect to the material elements of the offense.” Model
Penal Code § 2.02(8); see also United States v. Ladish Malting Co.,
135 F.3d 484, 487 (7th Cir. 1998). More important than the gen‐
eral understanding of willfulness, though, the instruction—
requiring a finding that Proano acted “knowing” his actions
were an unreasonable use of force—is consistent with Screws,
which required that a defendant be “aware” he is doing what
the statute forbids in the § 242 context. Screws, 325 U.S. at 104;
see also Aldo Brown, 871 F.3d at 538.6 The instruction thus did
not, as Proano insists, permit a conviction based only on the
6
Other circuit courts have described willfulness in the § 242 context some‐
what differently. See United States v. Cowden, 882 F.3d 464, 474 (4th Cir.
2018) (defining willfulness as “the particular purpose of violating a pro‐
tected right … or recklessly disregard[ing] the risk that he would do so”)
(citations and alterations omitted); United States v. House, 684 F.3d 1173,
1199–1200 (11th Cir. 2012) (defining willfulness similarly); United States v.
McRae, 795 F.3d 471, 479 (5th Cir. 2015) (defining willfulness as conduct
done “voluntarily and intentionally and with the specific intent to do
something the law forbids”); United States v. Reese, 2 F.3d 870, 885 (9th Cir.
1993) (“the requisite specific intent is the intent to use more force than is
necessary under the circumstances”). Those definitions are not so dissim‐
ilar from the district court’s definition to cast doubt on our conclusion that
the district court fairly stated the law.
20 No. 17‐3466
unreasonable use of force. Proano’s contrary reading takes
“knowing” out of the instruction.
Proano also insists that the willfulness instruction is mis‐
leading when “juxtaposed” with the instruction on how the
jury could use Proano’s training‐related evidence (i.e., for in‐
tent but not objective‐reasonableness purposes). These in‐
structions, he claims, “blur the distinct” objective and subjec‐
tive parts of § 242 and are at odds with one another. We again
fail to see how. Both instructions were clear, concise, and
guided the jury in determining Proano’s subjective intent in
shooting at the Toyota. To that end, the instructions were
complementary: one defined intent; the other told the jury
what evidence it could use in assessing intent. The district
court’s instructions provide no grounds to reverse.
D. Sufficiency of the Evidence
Proano’s final contention is that trial failed to produce suf‐
ficient evidence to convict him. We can overturn the jury’s
verdict only if in viewing the record in the government’s favor
it is “devoid of evidence from which a reasonable jury could
find guilt beyond a reasonable doubt.” United States v. Wrobel,
841 F.3d 450, 454 (7th Cir. 2016). A defendant bears the burden
of convincing the court that “no rational trier of fact could
have found him guilty.” United States v. Warren, 593 F.3d 540,
546 (7th Cir. 2010). We have often said that this is a heavy bur‐
den—indeed a “nearly insurmountable” one. E.g., Maldonado,
893 F.3d at 484.
Proano has not met that burden. He first asserts that there
was insufficient evidence to prove that his actions were not
objectively reasonable. Reasonableness depends on the total‐
ity of the circumstances. Plumhoff v. Rickard, 134 S. Ct. 2012,
No. 17‐3466 21
2020 (2014). This calls for a balanced inquiry into “the nature
and quality of the intrusion on the individual’s Fourth
Amendment interests against the countervailing government
interests at stake.” Graham v. Connor, 490 U.S. 386, 396 (1989).
We must view the events through the lens of the officer in the
moment, not with 20/20 hindsight. Flournoy v. City of Chicago,
829 F.3d 869, 874 (7th Cir. 2016) (citing Graham, 490 U.S. at
396). The law, of course, allows for “the fact that police offic‐
ers are often forced to make split‐second judgments.” Graham,
490 U.S. at 397. Deadly force is generally reasonable when a
reasonable officer in the same circumstances would believe
that the assailant’s conduct put someone in the “immediate
vicinity in imminent danger of death or serious bodily in‐
jury.” Horton v. Pobjecky, 883 F.3d 941, 949 (7th Cir. 2018) (ci‐
tation omitted).
Based on the totality of the circumstances, Proano argues,
it was reasonable for him to believe that Brown and the other
passengers were in mortal danger and to act accordingly. He
emphasizes the chaos of the scene: Brown hanging out of the
Toyota, Grant stuck between Flaherty’s squad car and the
Toyota, the occupants’ refusal to show their hands, and the
car reversing. The dashcam video, however, provided ample
grounds for the jury to conclude that there was no danger
posed to anyone and, thus, no need for lethal force. The video
showed Brown sitting up out of a window, not being dragged.
The car reversed at a mild pace, and quickly slowed, redi‐
rected, and butted against a light pole. No bystander was near
it. Yet Proano shot and continued to shoot even after the
Toyota stopped its retreat.
Nor does the BB gun’s presence at the scene show that the
jury erred in its conclusions. The officers’ first awareness of
22 No. 17‐3466
the gun was when it fell to the ground, and there was no evi‐
dence that any passenger threatened an officer with a
weapon. Cf. Garner, 471 U.S. at 11 (if a suspect threatens an
officer with a weapon, deadly force may be reasonable). Kal‐
icki’s testimony, moreover, suggested that the BB gun fell out
at the same time the shooting started. That fact, combined
with Proano’s immediate show of force and Proano’s post‐
shooting reports, which did not identify the BB gun, could
have reasonably led the jury to reject the idea that Proano
fired in reaction to the weapon.
Proano relatedly posits that the government’s reliance on
the dashcam video, particularly its slow‐motion version, is (1)
inconsistent with the totality analysis required under the
Fourth Amendment and (2) distorts the in‐the‐moment expe‐
rience Proano felt. The jury heard, and clearly rejected, these
arguments. The jury saw at trial and had in deliberations the
real‐time dashcam video. It may well have reviewed that
video and found that no interpretation of the circumstances
supported the notion that someone was in danger.
Even if circumstances were sufficient to give rise to a lethal
threat reasonably requiring deadly force, a jury still could
have decided that Proano’s reaction was unreasonable.
Proano argues that the number of rounds he fired—sixteen—
is irrelevant, because officers reasonably shoot until the threat
is eliminated. That is correct in principle, see Plumhoff, 134 S.
Ct. at 2022, but wrong in application. The jury could have con‐
cluded (easily) that Proano continued to apply lethal force
even after the threat subsided. After the vehicle stopped re‐
versing and began inching toward the light pole, Proano con‐
tinued to fire several more shots into its side. See, e.g., Becker
v. Elfreich, 821 F.3d 920, 928 (7th Cir. 2016) (it is “well‐
No. 17‐3466 23
established that police officers cannot continue to use force
once a suspect is subdued”).
Proano next asserts that there was insufficient evidence to
prove that he willfully used unreasonable force. Again, how‐
ever, the dashcam video provided grounds for the jury to con‐
clude otherwise. The brazenness of Proano’s actions alone
could have supported the jury’s conclusion: despite the car
not threatening anyone’s safety, Proano fired sixteen shots at
it, including several after the car began idling. See Bradley, 196
F.3d at 769 (sufficient evidence of willfulness when an officer
fired at a car “to stop … [its] flight” which, in the circum‐
stances, was “clearly unreasonable and excessive”). Add to
that how Proano, viewing the record in the government’s fa‐
vor, disregarded training by: using his gun, cocked, as an im‐
mediate show of force; discharging it into a group of people;
shooting at something into which he did not have visibility;
and never reassessing the situation until his magazine was
empty. The jury also could have disregarded Proano’s justifi‐
cations as inconsistent with the video evidence. Specifically,
although Proano reported concern for Brown, who he said
was being “dragged” by the Toyota, the jury could have con‐
cluded that assertion was flatly not believable in light of the
video, which showed Brown propped up out of the window
(and thus not “dragged”). In all, there was sufficient evidence
to convict Proano on both counts.
III. Conclusion
For these reasons, we AFFIRM the district court’s judg‐
ment.