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UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MATTHEW COLYER and ) 

DARIUS PINEX, ) 

 ) 

 Plaintiffs, ) No. 12 C 04855 

 ) 

 v. ) 

 ) Judge Edmond E. Chang 

CITY OF CHICAGO, GILDARDO SIERRA, ) 

and RAOUL MOSQUEDA, ) 

 ) 

 Defendants. ) 

ORDER

 The Court and the parties discussed Jury Instructions—Court Set 1 during 

the instructions conference. Most changes were made during the conference itself 

(the most impactful on the instructions being Pinex’s voluntarily dismissal of the 

battery claim against Sierra and the assault claim against Sierra). A few of the 

instructions were taken under advisement. After issuing Jury Instructions—Court 

Set 2, this Order explains the decisions that had been taken under advisement. 

Unreasonable Conduct of Officer Creating the Danger (Pages 23 and 

24). Plaintiffs proposed an addition to the Definition of Unreasonable Force on the 

excessive-force claim, and a corresponding one for the battery claim, stating that 

“An officer is not justified in using deadly force when his actions unreasonably 

created a physically threatening situation that led him to use deadly force.” R. 335 

at 2. Plaintiffs cite Estate of Starks v. Enyart, 5 F.3d 230, 234-35 (7th Cir. 1993), for 

the proposition. The defense first responds that Starks involved a qualifiedimmunity and summary-judgment setting, R. 339 at 4, but that procedural 

distinction does not undermine the legal principle set forth in Starks. Indeed, if 

anything, the fact that Starks denied qualified immunity to the officers means that 

the Seventh Circuit held that the principle is not only correct, it was so clearly 

established that a reasonable officer would know that he could not (under the 

plaintiff’s version in Starks) move into the path of the suspect’s car and then use the 

self-created danger to justify the use of deadly force. And Starks is consistent with 
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the general principle in Fourth Amendment law on searches (which is subject to the 

same reasonableness requirement as seizures) that officers cannot rely on 

exigencies that they themselves created in violation of the Fourth Amendment. See 

Kentucky v. King, 131 S. Ct. 1849, 1858 & n. 4 (2011) (“Where, as here, the police 

did not create the exigency by engaging or threatening to engage in conduct that 

violates the Fourth Amendment, warrantless entry to prevent the destruction of 

evidence is reasonable and thus allowed.”) 

 The defense next argues that “Defendants did not create a physically 

threatening situation to themselves by approaching the Aurora because, as Plaintiffs 

assert, the Aurora posed no threat whatsoever to Defendants when they made their 

approach.” R. 339 at 4 (emphasis in original). But the trial testimony of Mosqueda 

and Sierra is replete with references to protecting the other, first that Sierra was 

protecting Mosqueda from the reversing Aurora and then that Mosqueda was 

protecting Sierra from the forward-accelerating car. Plaintiffs argue that the 

officers created that situation by approaching with guns drawn and pointed at 

Plaintiffs. The proposed addition informs the jury that the officers cannot 

unreasonably create the dangerous situation. 

 Lastly, the defense argues that the Seventh Circuit Pattern Civil Jury 

Instructions do not contain the addition proposed by Plaintiffs. But the Pattern 

Instructions are not all-encompassing and do not cover every situation. And, having 

served on the Pattern Criminal Jury Instructions Committee, the Court is the first 

to acknowledge that, as much as the Committee tries to unearth every relevant case 

on every issue, 100% success is elusive. The Court will add the proposed language 

(which, upon reflection, is sufficiently neutrally stated) to the fourth paragraph of 

the Definition of Unreasonable Force. The addition also should be added to the 

explanation of justification in the battery instruction. Although there does not 

appear to be Illinois state-law case authority on this issue either way, the principle 

does fit with the requirement that the contact (the battery) was “necessary” to avoid 

harm; the contact would not have been “necessary” without the unreasonable 

conduct. (As a practical matter, the addition probably matters less for the battery 

instruction because the additional hurdle for that claim is the willful-and-wanton 

requirement.) 

Battery Claim (Page 24). As discussed during the instructions conference, 

the references to the Wrongful Death Act and Survival Act in the headings of the 

jury instructions and on the Verdict Forms might confuse the jury. The heading on 

the Battery Claim will omit references to the Acts, and will simply read, “The 
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Estate’s Battery Claim Against Raoul Mosqueda.” The Wrongful Death damages 

instruction will be entitled, “Battery Damages for Pinex’s Children.” The Verdict 

Forms will reflect the same title for that category of damages. 

 

 ENTERED: 

 s/Edmond E. Chang 

 Honorable Edmond E. Chang 

 United States District Judge 

DATE: March 3, 2015