United States v. Marco Proano

Citation: Not availableDocket: 17-3466

Court: Court of Appeals for the Seventh Circuit; January 6, 2019; Federal Appellate Court

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Marco Proano, a Chicago police officer, was convicted of willfully depriving two passengers of their constitutional rights after he fired sixteen shots at a moving sedan filled with teenagers. The incident occurred on December 22, 2013, when Proano responded to a situation involving a gray Toyota Avalon, which had been abandoned by its driver. The driver fled, leaving several passengers in the vehicle. As the Toyota rolled toward Officer Ken Flaherty, who was attempting to assist a passenger, Proano arrived and immediately aimed his weapon at the vehicle. 

When Delquantis Bates, a backseat passenger, pressed the gas pedal, the car jolted backward but posed no threat to anyone. Proano then began shooting at the vehicle, hitting two passengers, David Hemmans and Bates. Despite Proano's claim of acting in self-defense against an imminent threat, he did not mention the presence of a BB gun found at the scene in his reports, which described the vehicle as the assailant. Following the shooting, Proano completed Tactical Response Reports admitting to the use of force and citing an imminent threat, which led to his charges and subsequent conviction under 18 U.S.C. § 242. He appealed the decision, claiming errors during the pretrial and trial phases, but the appellate court affirmed the conviction.

Meeting attendees did not believe they discussed Proano's statements to IPRA. The FBI received materials from Investigator Prieto, including Proano's statements, which were subsequently reviewed by the government’s filter team. On September 15, 2016, a grand jury indicted Proano on two counts for willfully violating the Fourth Amendment rights of Bates and Hemmans under 18 U.S.C. § 242. Proano moved to dismiss the indictment, arguing that the FBI's meeting with Prieto disclosed Garrity-protected statements, thus tainting the prosecution. The district court held a hearing with testimony from Prieto and FBI agents Camacho and Jackson, ultimately denying Proano's motion on two grounds: no evidence of taint from the Garrity-protected statements and the existence of legitimate independent sources for the prosecution's information.

Due to the immunity of Proano’s statements under Garrity, the court intentionally remained vague about their specifics as the appeal did not necessitate detailed examination. Before trial, Proano sought to exclude evidence of his training in CPD policies, claiming it was irrelevant and that witnesses lacked personal knowledge of his training. The government reciprocated, seeking to exclude evidence regarding Proano's training on state law use of force. The district court ruled that both parties could use their training-related evidence to argue Proano's state of mind, with Proano asserting his actions aligned with his training and the government arguing the opposite.

The trial commenced on August 21, 2017, lasting six days, featuring testimonies from several witnesses, including Flaherty, Bates, and Brown about the shooting incident, as well as CPD Sergeant Timothy Moore regarding Proano's reports. Sergeant Snelling discussed CPD’s use-of-force policies, stating that deadly force is justified only when an assailant poses a significant threat and that recruits learn not to shoot into crowds or buildings without clear visibility. Jamison provided insights into firearms training, emphasizing that all instructors at the academy utilize the same standardized lesson plans, although he could not confirm if he personally trained Proano.

Jamison testified that recruits are trained to hold a weapon with both hands unless specific circumstances dictate otherwise and are instructed never to display a firearm solely to assert authority. Recruits are also taught to assess ongoing threats after firing shots, although they learn to shoot primarily to eliminate threats. The government presented dashcam video footage of the shooting, viewed by the jury in both real-time and slow motion. During the trial, Proano suggested a detailed jury instruction on 'willfulness'—a necessary mental state for a violation of 18 U.S.C. § 242—but the district court deemed it redundant and confusing, instead creating its own instruction with input from both parties. Following closing arguments and deliberation, the jury convicted Proano on both charges. The district court denied Proano's posttrial motion, affirming the admission of Snelling’s and Jamison’s testimonies and the adequacy of their foundations. Proano was sentenced to sixty months in prison, leading to this appeal.

On appeal, Proano contests four issues: (1) denial of his Garrity motion; (2) admission of training and policy evidence; (3) jury instruction on willfulness; and (4) sufficiency of the evidence. Concerning the Garrity motion, Proano argues that his Fifth Amendment rights were violated. Under Garrity, statements made by public officials under the threat of job loss during internal investigations are compelled and protected from use in criminal trials. The court reviews legal conclusions de novo and factual findings for clear error. Although Proano's statements were made under threat of job loss, the court found no violation of his rights. The government established a filter team to redact any protected statements before they reached the prosecution, and there was no evidence of flaws in this process. The court also found no evidence that Proano's statements were discussed by the FBI agents or investigators. Proano's attempt to challenge this finding did not demonstrate clear error. Even if the prosecution had access to his protected statements, there would be no violation if the government had a legitimate source for its evidence independent of those statements.

The district court concluded that the dashcam video, witness accounts, and police reports provided independent bases for the prosecution to learn about the facts related to Proano's Garrity-protected statements. Proano failed to prove these findings were clearly erroneous. He incorrectly interpreted Garrity's protections, asserting that Investigator Prieto's knowledge of the statements and subsequent meeting with FBI agents led to a derivative use of those statements in the federal investigation. However, the court found that Prieto did not disclose any Garrity-protected statements, and there were independent sources for the information. Proano's remaining argument—that Prieto's knowledge tainted the prosecution—was deemed logically and legally flawed. The court emphasized the focus should be on how Proano's own statements influenced the investigation, not on external influences from Prieto.

Regarding the admissibility of training and policy evidence, Proano claimed the district court erred by admitting this evidence on three grounds: irrelevance, unfair prejudice, and lack of proper foundation. The court reviews evidentiary rulings for abuse of discretion and found that Proano's arguments regarding relevance evolved throughout the appeal. Initially, he argued the evidence was irrelevant to intent, but later claimed specific evidence used at trial was inadmissible. The court clarified that evidence is relevant if it makes a fact of consequence more or less probable, setting a low threshold for admissibility. In Proano's case, the evidence was deemed relevant to determine whether he used deadly force unreasonably and willfully, aligning with the charges under 18 U.S.C. § 242 concerning the deprivation of rights under color of law. The court upheld the admissibility of training and policy evidence as it could influence the jury's understanding of Proano's intent.

Circuit courts have recognized that an officer's training can influence their state of mind in various situations. If an officer acts according to their training during tense encounters, it may suggest they did not act willfully. Conversely, if an officer disregards their training, it may indicate willfulness. The district court allowed both Proano's and the government's training-related evidence. Proano argued against the admissibility of the government's training evidence by citing Thompson v. City of Chicago, which stated that police policies are not relevant to constitutional assessments of force under 42 U.S.C. § 1983, emphasizing that the Fourth Amendment sets the constitutional baseline. However, subsequent clarifications indicate there is no blanket ban on admitting police training or policies as evidence, especially when intent is at issue in § 242 cases. Proano contended that the Chicago Police Department (CPD) training was too localized to be relevant, but the CPD is a significant police force, and previous rulings do not restrict admissible evidence to only national or model standards. The relevance of training pertains to what the officer actually received. Proano's arguments mainly challenge the weight of the evidence rather than its relevance, asserting that specific training prohibitions were not applicable to the context of the incident. The district court found that even if an officer's training occurred in a controlled setting, it was designed for real-world applicability.

Proano's arguments regarding the admissibility of his training evidence are deemed appropriate for the jury to consider rather than for judicial review. The relevance of an officer's training is contingent on various case-specific factors, including the training's recency, nature, representativeness of reasonable practices, standardization, and applicability to the officer's circumstances. The district court did not abuse its discretion in admitting evidence of Proano's training, which is pertinent to assessing his state of mind.

Under Federal Rule of Evidence 403, relevant evidence may be excluded if its probative value is substantially outweighed by the risk of unfair prejudice or confusion. Proano claimed that the training evidence posed such risks, but the court found that these risks did not outweigh its probative value. Proano argued the jury might improperly consider the training when evaluating the reasonableness of his use of force, but the court instructed the jury to consider the training solely regarding Proano's intent. Proper jury instructions can mitigate potential prejudice, and Proano was allowed to argue the limited applicability of his training to the situation faced.

Additionally, Proano contended that the training evidence lacked proper foundation under Rule 602, as witnesses Snelling and Jamison purportedly lacked personal knowledge of Proano's 2006 training at the academy. Rule 602 permits testimony based on a witness's personal knowledge, which can be established through their own testimony.

Snelling and Jamison's inability to recall specific instructions given to Proano at the academy does not render their testimony inadmissible under Rule 602. Snelling, who taught use-of-force procedures in 2006, had knowledge of the training recruits received due to his cross-training, which ensured consistency among instructors. Similarly, Jamison, who also provided training during Proano's enrollment, testified based on his familiarity with preapproved lesson plans and described the firearms principles as basic and standard. Both witnesses possessed personal knowledge of the academy’s training in 2006, allowing reasonable inferences about what Proano learned. Consequently, the district court acted within its discretion in admitting their testimony.

Regarding the jury instruction on willfulness related to the mens rea requirement under 18 U.S.C. § 242, the court reviews the instruction de novo for legal accuracy and for abuse of discretion in its application. Section 242 addresses the willful deprivation of constitutional rights, requiring specific intent, as established in precedent cases. The Supreme Court in Screws v. United States clarified that a defendant does not need to think in constitutional terms to act willfully, but must be aware that their actions violate the statute. The district court instructed the jury that Proano acted willfully if he intended to deprive Bates or Hemmans of their right to be free from unreasonable force, emphasizing that intent is determined by whether he knew the force used exceeded what a reasonable officer would have employed in similar circumstances.

Proano contends that the jury instructions diluted the required mens rea, converting the offense under 242 into a general-intent crime; however, this claim is rejected. The district court's instructions aligned with precedent, specifically Bradley, which mandates that a conviction requires proof of intent to violate constitutional rights. The court elaborated on intent, stating that Proano had the necessary intent if he knew his use of force was unreasonable and proceeded regardless. The term "willfulness" is not universally defined and varies by statute, but the court's definition mirrored common legal interpretations, including the requirement of knowledge of law violation.

Proano's argument that the jury instructions on willfulness and the use of training evidence created confusion is dismissed, as both instructions were clear and served to guide the jury in assessing Proano's subjective intent. The court finds no justification for reversing the decision based on these instructions.

Regarding the sufficiency of evidence, Proano failed to demonstrate that the jury's verdict was devoid of reasonable evidence supporting his guilt. The standard for overturning a conviction requires proving that no rational jury could find guilt beyond a reasonable doubt, a burden that Proano did not meet. He argued insufficient evidence to show his actions were objectively unreasonable, but the assessment of reasonableness depends on the totality of circumstances, balancing the intrusion on Fourth Amendment rights against government interests.

Events must be evaluated from the perspective of the officer at the time, acknowledging the necessity for split-second decisions in chaotic situations. Deadly force may be deemed reasonable if a reasonable officer believes an assailant poses an imminent danger of death or serious injury. Proano contends he acted reasonably under the circumstances, believing that Brown and other passengers were in mortal danger due to the scene's chaos, including Brown's positioning and the car's movements. However, dashcam footage suggests otherwise, showing Brown not being dragged and the car reversing slowly without any nearby bystanders. Proano's continued shooting after the car stopped its retreat raised questions about the necessity of lethal force. The jury could reasonably conclude that the presence of a BB gun did not justify Proano's actions, as the officers were unaware of it until it fell, and there was no evidence of a threat from any passenger. Testimony indicated the BB gun fell as the shooting began, undermining Proano's claim that he fired in response to it. Arguments regarding the dashcam video’s interpretation were also rejected by the jury, which viewed the real-time footage. Even if there was a perceived threat initially, the jury could determine that Proano's reaction was excessive. Although generally officers are instructed to fire until a threat is neutralized, the jury could find that Proano continued to use force after the threat had diminished, which contradicts established legal standards that prohibit excessive force once a suspect is subdued.

Proano's claim of insufficient evidence regarding his willful use of unreasonable force is countered by dashcam video evidence that supports the jury's findings. The jury could reasonably conclude that Proano's actions were brazen, as he fired sixteen shots at a vehicle that posed no threat, including shots after the vehicle had stopped. This parallels a previous case where an officer's shooting was deemed unreasonable and excessive. Proano’s disregard for protocol is evident as he used his weapon as an immediate show of force, shot into a crowd, aimed without visibility, and failed to reassess the situation until his magazine was empty. The jury could also find Proano's justifications inconsistent with the video evidence, particularly his claim of concern for Brown, who he alleged was being 'dragged' by the vehicle, which was contradicted by the footage showing Brown propped out of the window. Overall, the evidence sufficiently supported Proano's conviction on both counts, leading to the affirmation of the district court's judgment.