In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2645
D IONTRA C OMMON and M ICHAEL S MITH, SR.,
Co-Administrators of the Estate of
Michael Smith, deceased,
Plaintiffs-Appellants,
v.
C ITY OF C HICAGO, a municipal corporation, and
O FFICER G UY N ELSON,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 cv 6592—Matthew F. Kennelly, Judge.
A RGUED M ARCH 30, 2010—D ECIDED O CTOBER 20, 2011
Before P OSNER, R OVNER, and T INDER, Circuit Judges.
R OVNER, Circuit Judge. On November 18, 2006, Chicago
Police Officer Guy Nelson fatally shot Michael Smith as
he exited a convenience store on Chicago’s south side.
After his family sued the officer and the City, a jury
found that the officer had not used excessive force
2 No. 09-2645
against Smith. The only question in this appeal is
whether the district court judge erred by allowing
in evidence that Smith had drugs secreted in his mouth
at the time of the shooting.
I.
Due to the limited evidentiary question presented
in this court, we cite only those facts essential to
that question on appeal. On November 18, 2006,
Officer Nelson and his partner, Officer Sean O’Brien,
visited a convenience store on the south side of Chicago.1
The owner of the store told the officers that a robbery
suspect frequented his store and that although he had
called the police in the past, by the time the police
arrived, the suspect was always gone. Officer Nelson
gave the store owner his cellular telephone number and
told the owner to call should the robbery suspect enter
the store again. Later that afternoon, the owner called
Officer Nelson to tell him that the robbery suspect of
whom they had spoken was in the store again, along
with two other men, all three African-American,
in their late teens or early twenties, and wearing dark
clothing. The officers set off for the store and Officer
Nelson took his secondary firearm from his ankle
holster and placed it into his right coat pocket. Upon
1
Although the plaintiffs initially named Officer O’Brien as a
defendant, at the close of evidence, the plaintiffs moved to
voluntarily dismiss the counts against O’ Brien as well as all
of the state law counts. R. 158.
No. 09-2645 3
arriving at the store, the officers saw, exiting the store,
the three men who met the store owner’s description.
At this point, the accounts by the various witnesses
differ, but this court’s obligation is to view the evidence
in the light that supports the jury’s verdict. Matthews v.
Wis. Energy Corp., Inc., 642 F.3d 565, 567 (7th Cir. 2011).
Officers Nelson and O’Brien both testified that Officer
Nelson identified himself as a police officer and told
the men to stop and show their hands. Two of the three
men complied, but Smith turned and headed away
from the officers with his hands in a position not visible
to Officer Nelson. Officer Nelson ordered Smith to
show his hands at least three times, but Smith failed
to comply. Because he could not see what Smith was
doing with his hands, Officer Nelson removed his
revolver from his pocket. Just as he was removing it, he
felt Smith’s hand grab for his wrist and pull forward.
Officer Nelson, fearing that he was losing control of the
gun and that his life was in danger, fired one shot at
Smith. That gunshot pierced Smith’s chest, he fell
forward, and died shortly thereafter.
During an autopsy, the medical examiner discovered
five small plastic bags containing cocaine—four in
Smith’s right chest cavity and one in his trachea. The
medical examiner surmised that the four packets had
been in Smith’s upper airway but fell into his chest
cavity during the autopsy and that the other packet also
had been in the upper airway but was aspirated into
Smith’s trachea at the time of the shooting.
Prior to trial, pursuant to a motion in limine, the
district court concluded that the evidence regarding
4 No. 09-2645
the packets of drugs found in Smith’s body was admis-
sible and could be introduced, a decision we review for
abuse of discretion only, as district courts possess par-
ticular competence on matters of evidence. Breneisen v.
Motorola, Inc., No. 10-1982, 2011 WL 3873771, *2 (7th Cir.
Sept. 2, 2011).
II.
A fact finder assessing whether a police officer has
used excessive force must analyze the claim under the
Fourth Amendment’s objective reasonableness standard.
Graham v. Connor, 490 U.S. 386, 395 (1989). This standard
requires that a fact finder analyze whether the officer’s
actions are objectively reasonable in light of the facts
and under the circumstances confronting the officer at
the time of the incident, without regard to the under-
lying motive or intent of the officer, and without the
benefit of hindsight. Id. at 396-97. This circuit clarified
in Sherrod v. Berry, 856 F.2d 802 (7th Cir. 1988) (en banc),
that the “circumstances” to which the Graham court
referred must mean “only those circumstances known
and information available to the officer at the time of
his action (firing the fatal shot).” Id. at 804. Knowledge
and facts gained after the fact, the Sherrod court con-
cluded, have no proper place in a court’s or jury’s
analysis of the reasonableness of the actor’s judgment.
Id. at 805. A jury must stand in the shoes of the officer
and judge the reasonableness of his actions based on
the information he possessed in responding to that situa-
tion. Id. at 804-05. In short, when evaluating the reason-
No. 09-2645 5
ableness of an officer’s actions, the fact finder must do
so with blinders on—viewing the circumstances and facts
only as they were known to the officer at the time. We
reinforced this holding in Palmquist v. Selvik, 111 F.3d
1332 (7th Cir. 1997), noting that “evidence outside of
the time frame of the shooting is irrelevant and prejudi-
cial.” Id. at 1339. Taken at face value, these holdings
would seem to indicate that the evidence of drugs in
Smith’s body should not have been admitted at trial.
After all, Officer Nelson did not and could not have
known that Smith was hiding drugs in his mouth at
the time he opened fire.
The Sherrod and Palmquist decisions, however, do
allow a peek under the blinders in certain circumstances.
The Sherrod court was first to recognize that its holding
could “not be interpreted as establishing a black-letter
rule precluding the admission of evidence” outside the
officer’s knowledge. Sherrod, 856 F.2d at 806. That opinion
recognized two specific instances wherein a court could
look at evidence outside the knowledge of the police
officer in an unreasonable force case. First, the court
noted, the credibility of the witness “can always be at-
tacked by showing that his capacity to observe, remem-
ber or narrate is impaired.” Id. Second, a witness could
always be impeached by demonstrating contradictions
in his testimony. Id. As an illustration, the Sherrod
court went on to say, “[f]or example, if an officer
testifies that ‘I saw a shiny, metallic object similar to a
gun or a dangerous weapon in the suspect’s hand,’ then
proof that the suspect had neither gun nor knife would
be material and admissible to the officer’s credibility on
6 No. 09-2645
the question of whether the officer saw any such thing.”
Id. On the other hand, the Sherrod court noted, “if the
officer says ‘I saw the suspect reach quickly for his
pocket,’ then proof of the contents of the pocket does
not contradict the officer’s testimony.” Id.
In Sherrod, a police officer had approached a suspected
robber’s automobile. The officer ordered the driver,
Sherrod, and his passenger to raise their hands three times
before they complied. As the officer approached the
vehicle, he observed the driver make a quick movement
with his hand into his coat. Fearing that Sherrod
was reaching for a gun, the police officer fired his
weapon, killing him instantly. A later search revealed
that Sherrod was unarmed. Id. at 803-04. The trial
judge allowed the plaintiffs to present the evidence
that Sherrod was unarmed, reasoning that “the jury
would have been left to speculate as to whether [the
officer] was justified in thinking that the claimed move-
ment by Sherrod posed a danger to the police officer.” Id.
at 804. This court reversed on the basis that “[k]nowledge
of facts and circumstances gained after the fact (that the
suspect was unarmed) has no place in the trial court’s
or jury’s proper post-hoc analysis of the reasonableness
of the actor’s judgment. Were the rule otherwise, . . . the
jury would possess more information than the officer
possessed when he made the crucial decision.” Id. at 805.
The officer in Sherrod did not testify that he saw an
object in the deceased hands, but rather that he saw the
suspect make a quick movement with his hand into
his coat. The testimony that Sherrod reached into his
No. 09-2645 7
coat was thus uncontroverted.2 Thus the evidence that
Sherrod was unarmed was irrelevant for impeachment
purposes, and the jury had to determine the reason-
ableness of the officer’s action using only those facts
known to the officer at the time. Id. at 806-07.
Similarly, in Palmquist, police officers responded to a
call that a man was screaming profanities, making death
threats, howling at the moon, and breaking windows.
When they arrived at the scene, they found a belligerent
Palmquist, standing outside of his house screaming
obscenities and incoherent statements and brandishing
a muffler pipe. Palmquist, 111 F.3d at 1335. When the
officers attempted to arrest Palmquist for breaking win-
dows, he swung the pipe and hit an officer. After he
swung a second time, another officer fired and maimed
Palmquist. Palmquist stood back up and said, “You only
winged me—you’ll have to kill me,” as he lifted the
pipe and swung it in the direction of an officer. Id. at
1336. That officer fired repeatedly into Palmquist’s arm
and then, before long, at his core, eventually killing him.
What the officers at the scene did not know was
that Palmquist was depressed, suicidal, and had told
his friends on numerous occasions that he wished to
commit “suicide by police.” Id. at 1337. They also did not
2
There may have been conflicting evidence about how
Sherrod reached into his jacket, but no witness testified that
Sherrod did not reach into his pocket at all, or that, as witnesses
testified in this case, the deceased remained immobile with
his hands in the air. See Sherrod, 856 F.2d at 810 (Cummings, J.
dissenting).
8 No. 09-2645
know that just a few hours before the neighbors’ 911
call, Palmquist had been arrested for drunk driving
and possession of marijuana. Relying on Sherrod, the
Palmquist court upheld the lower court’s decision that
information regarding the deceased’s suicide wish was
not admissible as it was not known to the officers at the
time of the action. Id. at 1341. The exclusion of evidence
about the intoxication, arrest, and marijuana possession
posed a closer question for the court. Evidence of a plain-
tiff’s intoxication, the Palmquist court surmised, could
be admissible under Fed. R. Evid. 403 because it “tends
to make more probable that the plaintiff acted as the
defendant contended he did or that plaintiff otherwise
conducted himself in such a manner as to place the de-
fendant reasonably in fear of his life.” Id. at 1342. In
this way, the Palmquist court further elaborated on the
exceptions to the “only what the officer knew” rule.
Ultimately, the Palmquist court concluded that although
the evidence could have been admitted, it was in any
event cumulative, or at least its exclusion constituted
harmless error. Id. And given our deference to a district
court’s determinations on matters of evidence, the omis-
sion of the evidence did not support grounds for rever-
sal. Id.
The Palmquist intoxication exception is not at issue
here—it is uncontroverted that the packets of drugs in
Smith’s body remained intact and that he had no traces
of drugs in his system at the time of death. Thus no one
can, nor does, argue that Smith acted the way he did
because of drug intoxication. On the other hand, the
packets of drugs in Smith’s mouth made it more likely
No. 09-2645 9
that Smith acted in the way that Officer Nelson con-
tended he acted as opposed to the way that other wit-
nesses contended he did. The fact that Smith possessed
illegal drugs gave him a motive to avoid their discov-
ery—by hiding them in his mouth, for example. This
made it more likely that he would initially turn from the
officer and hide his hands as he took the drugs from his
pockets and placed them in his mouth. It also made
it more likely that Smith might engage in a flight or fight
response—either turning away from the police, as he
seemed to have done initially, or turning toward the
officer and grabbing for his gun. In this case, unlike
in Sherrod or Palmquist, the evidence of the deceased’s
behavior was highly contested. Under Officer Nelson’s
version of events, Smith turned away from him, refused
to show his hands, and then Smith eventually turned
back toward Officer Nelson and grabbed his gun. Under
the estate’s version of the events, Smith immediately
complied with Nelson’s command to raise his hands,
turned and faced Officer Nelson with his hands raised,
but nevertheless Officer Nelson shot him at point-blank
range.
Although this court must view the facts in the light
most favorable to the jury’s verdict, we note some addi-
tional testimony that contradicted Nelson’s version of
events for the purpose of demonstrating the contested
nature of the testimony. For example, the owner of a
hair salon two storefronts away from the convenience
store testified that he saw Smith with his hands in the
air, and another man approaching him head on, pointing
a gun. R. 186, p. 387. That witness testified that when
10 No. 09-2645
the gun was at arm’s distance away, the shooter (now
known to be Officer Nelson) fired, and that there was
no struggle and Smith did not grab for Officer Nelson’s
gun. R. 186, pp. 388, 393. It is worth noting that the hair
salon owner testified both that Smith was twisted
away from the shooter at the time of the shooting, (R. 186,
p. 395), and that he was “squared off shoulder to shoul-
der.” R. 186, pp. 413, 415.
An employee of the convenience store and friend of
Smith’s family testified both that he saw three sets of
hands up in the air (presumably those of both Smith
and his two friends) (R. 186, pp. 324, 340), but also that he
did not specifically see Smith’s hands in the air, but
rather only the hands of the last man to exit the store.
R. 186, pp. 346-47. A third witness who was entering a car
in front of the convenience store did not see the shooting
but testified that he never heard anyone say “stop, po-
lice” or anything similar, and that he never heard signs
of a struggle or running. R. 185, p. 71.
As the Sherrod court noted, and we too conclude
today, where the facts are controverted in a reasonable
force case, impeachment by contradiction is allowed.
Sherrod, 856 F.2d at 806. Just as evidence of a gun would
make it more likely that an officer saw a shiny metallic
object in a suspect’s hand, evidence of the drugs secreted
in Smith’s airway made it more likely that Smith acted
as Officer Nelson testified, as opposed to the manner
in which plaintiffs’ witnesses testified. Smith’s behavior
was, after all, not ordinary behavior for a person encoun-
tering the police.
No. 09-2645 11
Smith’s estate asserts that the risk of prejudice from
the drug evidence outweighed any probative value and
that the district court, therefore, erred in admitting
the evidence. Relevant evidence may be excluded if its
probative value is substantially outweighed by the
danger of unfair prejudice. Fed. R. Evid. 403. We
ordinarily review a district court’s evidentiary rulings
under an abuse of discretion standard and give “special
deference” to the district court’s findings pursuant to
Rule 403, reversing only when “no reasonable person
could take the view adopted by the trial court.” United
States v. Moore, 641 F.3d 812, 826 (7th Cir. 2011).
The district court in this case carefully considered the
potential prejudice and discussed it with the parties on
three separate occasions, inviting the parties to proffer
limiting instructions. R. 166, p. 14; R. 187, pp. 673-77, 709-
22. The district court considered the proffered in-
structions, and then suggested that if the plaintiff thought
the limiting instruction might backfire by calling more
attention to the drug evidence, the estate’s attorneys
could simply argue the limitation in closing. After con-
sidering it, plaintiffs’ counsel ultimately decided to do
just that—forego the limiting instruction.3 R. 187, p. 676,
3
The plaintiffs originally offered a limiting instruction that
would have said that the drugs could “not be considered by
you regarding whether the officer used excessive force or
whether his conduct was willful and wanton.” R. 187, p. 674.
The defendants’ proposed instruction said that the drug
(continued...)
12 No. 09-2645
711. This was a considered legal strategy. A party who
declines the opportunity to have a limiting instruction,
waives the right to claim that he has been prejudiced
by evidence that is otherwise relevant and admissible.
United States v. Wheeler, 540 F.3d 683, 693 (7th Cir. 2008)
(defendants’ declination of limiting instruction waived
their claim of prejudice); See also Goetz v. Cappelen,
946 F.2d 511, 514 (7th Cir. 1991) (same).
Even if Smith’s estate has not waived the right to
claim prejudice, it faces the tough hurdle overcoming our
deference to this particular type of evidentiary ruling.
After all, all evidence is prejudicial. Evidence is “unfairly
prejudicial in the context of Rule 403 if it will induce
the jury to decide the case on an improper basis, com-
monly an emotional one, rather than on the evidence
presented.” United States v. Albiola, 624 F.3d 431, 440 (7th
Cir. 2010) (internal citations omitted). Although a district
court must be cautious and consider prejudice when
admitting such evidence, certainly there are permissible
uses of drug evidence in non-drug crime cases. See
United States v. Cameron, 814 F.2d 403, 405 (7th Cir. 1987)
(noting that there are times when drug use may be ad-
3
(...continued)
evidence “is to be considered by you for the purpose of deter-
mining whether Michael Smith attempted to disarm Officer
Nelson only and for no other purpose.” Id. The district court
held that the evidence would be admitted “on the theory that
it . . . of events,” and thus the plaintiffs’ version of the instruc-
tion would not be appropriate. R. 187, p. 675.
No. 09-2645 13
mitted over a Rule 403 objection). Courts have admitted
evidence of drug possession over Rule 403 objections
when the drug possession tends to corroborate an
element of a separate criminal offense. See, e.g., United
States v. Sanchez, 615 F.3d 836, 841-42 (7th Cir. 2010)
(allowing in evidence of drug trafficking to demonstrate
motive in a kidnapping case); United States v. Strong, 485
F.3d 985, 990 (7th Cir. 2007) (allowing in evidence of drug
possession over a Rule 403 objection in a felon-in-posses-
sion of a firearm case because the drug evidence
supplied a motive for having the gun). In this case, the
drug evidence was not admitted for the purpose of
making a general character attack, but rather because it
tended to make it more probable that the plaintiff acted
as the defendant contended he did. See Palmquist, 111
F.3d at 1342. The evidence was used to rebut the plaintiffs’
argument that Smith exited the store and immediately
complied with the officer’s direction to put his hands in
the air. It was also used to demonstrate that Smith had a
motive to turn away from the officer to conceal the drugs
and then attempt to gain control of Officer Nelson’s
weapon. The evidence was limited to two photographs
showing the drug packets recovered from Smith’s
body and the dry and succinct medical testimony of the
medical examiner, occupying merely five pages of trial
transcript, about where the packets were found in
Smith’s body and how they most likely arrived there.
R. 187, pp. 576-77, 582-83. No one discussed drug sales,
drug use, gang membership, or any type of criminal
activity.
The district court did not err in admitting the drug
evidence. And because we decide that the court did not
14 No. 09-2645
err in admitting the evidence, no new trial is warranted.
The judgment of the district court is A FFIRMED.
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