Judges: Posner
Filed: Nov. 08, 2013
Latest Update: Mar. 02, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 12-3378 SHARRON BALTHAZAR, Plaintiff-Appellant, v. CITY OF CHICAGO, JOHN MURPHY, and NICK BECKMAN, Defendants-Appellees. _ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 10 C 4760 — John W. Darrah, Judge. _ ARGUED OCTOBER 8, 2013 — DECIDED NOVEMBER 8, 2013 _ Before BAUER, POSNER, and EASTERBROOK, Circuit Judges. POSNER, Circuit Judge. Sharron Balthazar sued the City of C
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 12-3378 SHARRON BALTHAZAR, Plaintiff-Appellant, v. CITY OF CHICAGO, JOHN MURPHY, and NICK BECKMAN, Defendants-Appellees. _ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 10 C 4760 — John W. Darrah, Judge. _ ARGUED OCTOBER 8, 2013 — DECIDED NOVEMBER 8, 2013 _ Before BAUER, POSNER, and EASTERBROOK, Circuit Judges. POSNER, Circuit Judge. Sharron Balthazar sued the City of Ch..
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 12‐3378
SHARRON BALTHAZAR,
Plaintiff‐Appellant,
v.
CITY OF CHICAGO, JOHN MURPHY, and NICK BECKMAN,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 10 C 4760 — John W. Darrah, Judge.
____________________
ARGUED OCTOBER 8, 2013 — DECIDED NOVEMBER 8, 2013
____________________
Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.
POSNER, Circuit Judge. Sharron Balthazar sued the City of
Chicago (which we can ignore) and two of its police officers
under 42 U.S.C. § 1983, charging that the two officers, and
several others not charged, had conducted an unreasonable
search of her apartment, in violation therefore of the Fourth
Amendment, which has been made applicable to searches by
state or local officers (as in this case) by interpretation of the
2 No. 12‐3378
due process clause of the Fourteenth Amendment. A jury
returned a verdict for the defendants, and Balthazar appeals.
She lived on the third floor of an apartment house. There
were two apartments on that floor, one facing the street and
the other an alley behind the building. Police had a warrant
to search the apartment facing the alley for narcotics. Both
apartments had rear doors about fifteen feet apart opening
on a common balcony from which flights of stairs descended
to the ground. Early in a fall afternoon in 2009, police, in‐
cluding the two defendant officers, arrived to execute the
search warrant. The officers climbed the stairs to the bal‐
cony. One of them (defendant Beckman) carried a battering
ram—in police lingo he was the “breach officer” on the war‐
rant team. Beckman swung the ram at the door of the plain‐
tiff’s apartment, breaking it open. According to the plaintiff’s
testimony (and also that of her 14‐year‐old son and her sis‐
ter—the son was in the apartment with his mother and her
cousin; the sister came over later, allegedly to help clean up
a mess created by the police), the officers entered the
Balthazar apartment, screaming profanities and pointing
their guns, which included “long guns” (not further de‐
fined), “face‐to‐face, like two inches away,” at the occupants
(the plaintiff, her son, and a cousin, who didn’t testify, of the
plaintiff’s). The officers handcuffed the plaintiff and her
cousin and ransacked the apartment, dumping “flour and
sugar everywhere and food on the floor,” opening drawers,
flipping mattresses, throwing clothing, and in short turning
the apartment into a “total disaster.” Ten or fifteen minutes
into the search another officer appeared and told the search‐
ers they were in the wrong apartment, whereupon they all
left for the other apartment on the plaintiff’s floor, the one
for which they had the search warrant.
No. 12‐3378 3
That is the plaintiff’s version of the facts. According to
the defendants, Beckman, wanting to “get up the stairs as
quickly as possible” to avoid a “potential hazard,” became
slightly disoriented lugging the battering ram—which
weighed at least 30 pounds and possibly as much as 85
pounds—up two and a half flights of stairs (the first floor of
the apartment house was a half flight of stairs above the
ground). As a result he confused the two apartments on the
plaintiff’s floor. He was the first officer to reach the balcony
but officer Murphy, the other defendant officer and the
leader of the warrant team, was only about ten feet behind
Beckman on the staircase and saw that Beckman was at the
wrong door and shouted “wrong door, wrong door!” Too
late; Beckman had started to swing the battering ram and
couldn’t check its momentum, though in an unsuccessful ef‐
fort to avoid hitting the door he was able to lower the ram
far enough that it hit just the bottom of the door. Still, the
door burst open and he saw a man inside (it must have been
the cousin), as did Murphy and another officer, who was
close behind him. None of the officers entered the plaintiff’s
apartment. They rushed immediately to the other apartment,
the one designated in their warrant, and searched it after
battering in the door when no one answered their demand to
open the door (there turned out to be no one in that apart‐
ment).
The plaintiff’s brief recites Balthazar’s version of the facts
as if it were Gospel, but changes gears in the argument sec‐
tion and says that “the undisputed facts at trial established
that Defendant Beckman forcibly breached Plaintiff’s back
door and was able to observe inside Plaintiff’s apartment
without a warrant or any other legal justification. Courts
have repeatedly held that viewing inside Plaintiff’s apart‐
4 No. 12‐3378
ment under these circumstances constituted a search.” The
argument sections of her briefs contain no reference to the
version of the facts to which the plaintiff testified and which
the lawyer in his opening and closing arguments urged the
jury to accept: no reference to guns, handcuffs, flour and
sugar on the floor, mattresses upended, etc.
We’ll discuss the objections of the plaintiff’s lawyer to
rulings by the judge concerning the alternative factual narra‐
tive, in which the “search” is a glance sans handcuffs and
guns and ransacking. But even if the objections are compel‐
ling, it would be a travesty of justice for the plaintiff to be
allowed to prevail. If the police officers did not enter her
apartment, terrify the occupants by pointing “long guns” at
them, handcuff her and her cousin, and ransack the apart‐
ment, then her testimony that they did these things was per‐
jured (doubtless to magnify her damages if she prevailed, as
the police had already voluntarily paid for the damage to the
door), because she couldn’t have been innocently mistaken
in testifying to these actions. In effect her counsel is telling
us: “Yes, she lied, and that’s why I’m going to talk just about
the alternative theory, which is that Beckman, having after
mistakenly breaking in glanced into the apartment (how
could he help doing so?) and the glance was a search.” The
glance‐in theory is true only if the handcuff‐long‐gun‐
ransack theory is false, and if it’s false that is because it’s a
fabrication by the plaintiff, aided and abetted by her son and
sister. It couldn’t be an erroneous recollection. What reason‐
able jury would accept a theory of liability that presupposed
that the plaintiff was a perjurer?
There is every indication that it was indeed a fabrication.
The only witnesses called by the plaintiff, besides herself,
No. 12‐3378 5
her son, and her sister, were the two defendants and one
other officer—adverse witnesses all three of whom denied
the plaintiff’s tale. And the sister did not confirm the pres‐
ence of flour and sugar on the kitchen floor, or the son his
mother’s testimony that he was so frightened by the incident
that he wanted to sleep in her bed “all the time.” He testified
that he played basketball later that day, laughed about the
event with his mom, and that within two days the incident
was completely gone from his thoughts, except that he “can’t
believe in the police that much no more”(a remark consistent
with the police having simply broken open the door by mis‐
take). While insisting that the officers brandished “long
guns,” mother and son were evasive and would not testify
that by “long guns” they meant rifles or shotguns rather
than pistols.
Balthazar did take her son to a hospital several days after
the incident, presumably for psychiatric counseling, and was
billed $623 for the visit (plus the same amount for whatever
counseling or other services she received from the hospital).
But no medical record of diagnosis or treatment either of her
or her son was placed in evidence. The son was given a pre‐
scription at the hospital, but he doesn’t know for what, and
he didn’t fill it.
Neither the City claims adjuster who visited the apart‐
ment the day of the incident, nor the employee of the Inde‐
pendent Police Review Authority who took the plaintiff’s
call reporting the incident, testified that the plaintiff had
complained about anything other than damage to her door.
In his closing argument the defendants’ lawyer told the
jury: “Even plaintiffs’ counsel doesn’t believe his clients”
(clients, not client, because Balthazar’s son was originally a
6 No. 12‐3378
plaintiff, though he dropped out of the case at some point,
for undisclosed reasons). The plaintiff’s counsel objected to
the comment about not believing his clients, but the judge
overruled the objection on the ground: “This is argument.”
By “argument” the judge must have meant that the defen‐
dants’ lawyer was drawing an inference from evidence pre‐
sented at the trial. It was not an unreasonable inference, but
it was speculation; at most the lawyer could have inferred,
from the emphasis that the plaintiff’s lawyer placed on the
second theory of liability (what we’re calling the “glance‐in”
search), that the lawyer didn’t expect the jury to believe the
first theory. That may have been what the defendants’ law‐
yer meant by the remark, but it was not what she said. What
she said sounded as if she might have some private knowl‐
edge that the plaintiff’s lawyer disbelieved his client. The
defendants acknowledge in their brief that the statement that
the plaintiff’s counsel did not believe his client was “im‐
proper.”
In closing argument, discussing the theory of the glance‐
in search, the defendants’ lawyer said: “Now, what about
seeing inside an apartment as an unreasonable search? What
does seeing inside mean? If taken literally, it means that
every time a police officer walks by a window or an open
door, that he’s conducting a—” whereupon the plaintiff’s
lawyer objected. The judge overruled the objection. The de‐
fendants’ lawyer went on to say that “with these facts, see‐
ing a person standing inside an apartment and nothing
more, and considering that a search, is not common sense.”
Again an objection, again overruled.
Evidently the jury was confused about what constitutes a
search, because during its deliberations it sent a note to the
No. 12‐3378 7
judge saying: “Can you please place points of clarification
upon the following statement: ‘A search does not require
physical entry into a home or apartment. Simply breaching
an entry door and seeing inside an apartment constitutes a
search.’ Please provide insight as to if this statement is fact in
a court of law or just a general statement. Further, can you
define the word ‘seeing’?” The judge responded: “The law
that you are to apply is contained in the jury instructions.
Please consider all of them carefully.”
In fact the instructions had addressed briefly and clearly
the very question that the jury asked: “A search does not re‐
quire physical entry into a home or apartment. Simply
breaching an entry door and seeing inside an apartment
constitutes a search.” The instruction had been proposed by
the plaintiff’s lawyer and unsuccessfully opposed by the de‐
fendants’ lawyer; we’ll see shortly that it was excessively fa‐
vorable to the plaintiff. The jury’s question quoted the pas‐
sage back to the judge. Had the judge repeated the instruc‐
tion in response to the jury’s question, adding that the in‐
struction was not merely a “general statement” but an exact
and correct statement of the law and therefore binding on
the jury, and that the word “seeing” in the instruction was
meant in the everyday sense of the word, the jury’s confu‐
sion would almost certainly (so far as one can be certain in
such matters without interrogating the jurors, which is for‐
bidden) have been dispelled. Merely to tell the jurors that
“the law that you are asked to apply is contained in the jury
instructions” failed to direct them to the one instruction that
would dispel any confusion.
Over and over again in their brief the defendants recite
the mantra that juries are presumed to obey the judge’s in‐
8 No. 12‐3378
structions. It is true that a verdict consistent with correct in‐
structions can’t be assumed to have been based on a misun‐
derstanding by the jury. But a false statement by counsel to
the jury, left uncorrected by the judge, or a cryptic answer to
a question submitted to the judge by the jury, can under‐
mine the reliability of the verdict even if there is no actual
error in the instructions. Clarity is as important as accuracy
given the limitations of jurors’ comprehension. See, e.g.,
Skidmore v. Baltimore & Ohio R.R., 167 F.2d 54, 64–65 (2d Cir.
1948); Dennis J. Devine, Jury Decision Making: The State of the
Science (2012); Bethany K. Dumas, “Jury Trials: Lay Jurors,
Pattern Jury Instructions, and Comprehension Issues,” 67
Tenn. L. Rev. 701 (2000). But the bobbles we’ve mentioned
were harmless, given the collapse of the plaintiff’s primary
theory. That left, as the only alternative characterization of
the incident of the broken door, an innocent mistake by the
police. And a search resulting from an innocent mistake is
not unreasonable and so does not violate the Fourth
Amendment. Maryland v. Garrison, 480 U.S. 79, 88–89 (1987).
We even doubt that what happened in this case should
be considered a “search.” Police forced open the door of a
residence by mistake, realized their mistake immediately (in
fact before the door opened—for remember that Beckman
tried to check the forward motion of the battering ram), and
left immediately. With the door open in front of him he
couldn’t have avoided seeing into the apartment without
closing his eyes (which would have been dangerous). But
having learned before looking that it was the wrong apart‐
ment, he wasn’t using his eyes to search for anything. Seeing
can be searching, but isn’t always. Even before the door fell
open, Beckman knew there was nothing to search for in the
plaintiff’s apartment.
No. 12‐3378 9
This is not to suggest that entry is required for a search;
otherwise a wiretap wouldn’t be a search. Entry is neither a
necessary nor a sufficient condition of searching. But an ac‐
cidental entry, or an accidental breaking of a door, which
exposes the interior, followed by a glance unrelated to any
interest in contraband or other evidence of crime, followed
by an immediate withdrawal, is not a search.
The error in equating seeing with searching is especially
patent with respect to the other defendant, officer Murphy.
It was he who climbing the stairs behind Beckman shouted
“wrong door.” When he reached the top of the stairs the
door to Balthazar’s apartment was open. Murphy saw the
interior of the apartment through the open door. He knew it
was the wrong apartment; it wasn’t his fault that the door
was open and that when you face an open door you see into
the interior. If you know you’re in the wrong place—a place
you’re not authorized to search or want to search—the un‐
avoidable glance through the open door is not a search.
AFFIRMED.