United States Court of Appeals For the Seventh Circuit
Civil Rights — excessive force
Although a police officer can be held liable for filing to prevent another officer’s use of excessive force, and the jury instructions stated otherwise, the plaintiff is not entitled to a new trial, where he was the party that proposed the erroneous jury instruction.
“[U]ltimately the real problem in this case was the one posed by the language of the failure-to-intervene instruction that Sanchez’s counsel proposed and that the court gave over defense objection. As we have noted, the modified language of the failure-to-intervene instruction erroneously advised the jury that in order to hold Caballero or Peterson liable for the failure to intervene in the misconduct of another officer, one or both of the named officers themselves must have participated in that misconduct. Additionally, the instruction did not even mention the other, unnamed officers; the instruction was premised entirely on the use of force by at least one of the named defendants. Whatever potential for misunderstanding that may have been posed by the personal involvement instruction was thus eclipsed by the flawed language of the failure-to-intervene instruction. The latter instruction as given expressly precluded the jury from holding Caballero and Peterson liable for failing to stop the false detention and/or battering of Sanchez unless one or both of the defendants were themselves perpetrators of those wrongful acts. Any modification to the wording of the personal involvement instruction thus would have done Sanchez no good whatsoever in view of the hopelessly defective language of the failure-to-intervene instruction.”
“In short, any error in the court’s refusal to embrace the language that Sanchez posed to harmonize the personal involvement instruction with the failure-to-intervene instruction was harmless. The real fault lies with the failure-to-intervene instruction itself, which was proposed by Sanchez. Having been the proponent of the flawed failure-to-intervene instruction, Sanchez is foreclosed from objecting to that instruction now.”
Appeal from the United States District Court for the Northern District of Illinois, Darrah, J., Rovner, J.