Court Error – Jury Instructions

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7^th Circuit Court of Appeals

Case Name: Leoncio Elizarri, et al. v. Sheriff of Cook County, Illinois, et al.

Case No.: 17-1522

Officials: EASTERBROOK, RIPPLE, and HAMILTON, Circuit Judges.

Focus: Court Error – Jury Instructions  

The theme of this constitutional suit under 42 U.S.C. §1983 is that the Sheriff of Cook County, Illinois, did not do enough to prevent guards and other public employees from stealing or losing the belongings of inmates at the Cook County Jail. New arrivals must surrender their possessions. There is no doubt that theft of these belongings is a crime and a tort (conversion) under state law, and a violation of the Due Process Clause (depriving prisoners of property with no process at all), but plaintiffs (a certified class) do not contend that the Sheriff personally stole anything or even tolerated a known thief—and none of the guards is a defendant.

Failure to prosecute thieves does not violate the Constitution. See Castle Rock v. Gonzales, 545 U.S. 748 (2005). Likewise a guard’s negligent loss of belongings, while potentially tortious under state law, does not violate the Constitution. See Daniels v. Williams, 474 U.S. 327 (1986) (negligent loss of prisoners’ property is not a constitutional wrong). Still, plaintiffs insist, the Constitution imposes on the Sheriff a duty to do something about excessive rates of loss. The theory must be that keeping careless (or worse) employees on the staff, without implementing an adequate system of quality control, violates the Constitution whether or not any of those employees has violated the Constitution. We need not decide whether this is a viable theory of liability.

Plaintiffs now contend that part 3(b) was incorrect because it set up an argument by counsel for the Sheriff that liability was appropriate only if the Sheriff “purposely took no action” in response to a known risk. Plaintiffs say that this argument misstated the law, because “unreasonable” action is culpable along with “no” action and because conscious disregard is not quite the same thing as purpose. See Farmer v. Brennan, 511 U.S. 825 (1994).

Because counsel’s argument was wrong, plaintiffs insist, the instruction must be wrong too. That’s a curious inference. The instructions themselves tell the jury what’s what. If a lawyer misstates an instruction—as plaintiffs say the defense lawyer did—then opposing counsel can correct the error by pointing to the instruction. Judges routinely tell jurors that the arguments of counsel cannot contravene the instructions or supplement the evidence. This is why plaintiffs need to (and do) attack the instructions themselves, not just what opposing counsel made of those instructions. Plaintiffs add that because the Fourth Amendment (applied to the states by the Fourteenth) can continue to apply during pretrial custody, see Manuel v. Joliet, 137 S. Ct. 911 (2017), the instruction should have told the jury to use an objective standard rather than any species of disregard or indifference.

The district judge found the evidence insufficient to show that any other database had existed and been destroyed, let alone that it had been destroyed in bad faith for the purpose of concealing evidence, a finding essential to a spoliation instruction. See, e.g., Rummery v. Illinois Bell Telephone Co., 250 F.3d 553, 558 (7th Cir. 2001). But the judge allowed plaintiffs’ lawyer to argue to the jury—despite the paucity of evidence—that the Sheriff had concealed or destroyed inculpatory records. If there was an error, it favored plaintiffs. The district judge did not abuse her discretion by declining to put the court’s thumb on the scale in plaintiffs’ favor.

Affirmed

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.