In the

United States Court of Appeals

For the Seventh Circuit

No. 10-3979

DEVARIS PERRY,

Plaintiff-Appellant,

v.

CITY OF CHICAGO AND BARTELL

KEITHLEY,

Defendants-Appellees.

Appeal from the United States District Court for the 

Northern District of Illinois, Eastern Division.

No. 1:08-cv-4730 — Sidney I. Schenkier, Magistrate Judge.

ARGUED SEPTEMBER 16, 2013 — DECIDED OCTOBER 23, 2013

Before KANNE, ROVNER, and WILLIAMS, Circuit Judges.

KANNE, Circuit Judge. Bartell Keithley, a Chicago police

officer, shot Devaris Perry twice during an encounter that

ended in Perry’s arrest. Perry was acquitted of the related

criminal charges and filed suit against Officer Keithley and the

City of Chicago, alleging violations of both federal and Illinois

civil rights laws, and seeking indemnification from the City.
2 No. 10-3979

The jury rejected Perry’s claims. Perry now appeals, asserting

that the district court made several evidentiary errors that

infected the jury’s deliberations. For the reasons detailed

below, we affirm the decision of the district court.

I. BACKGROUND

This case arises from appellant Devaris Perry’s arrest and

shooting on September 14, 2007. On that morning, Chicago

police officers Bartell Keithley and Stephen Watts responded

to reports of gunfire at 527 East Browning, a high rise in the Ida

B. Wells housing complex on the south side of Chicago. Upon

arriving at the scene, two people told the officers that

“gangbangers” were running guns anddrugs into the building.

They also pointed the officers to apartment 501. Keithley and

Watts entered the building and knocked on the door of unit

501. No one answered, so Keithley and Watts entered the

apartment with their guns drawn. They found Perry inside the

apartment and ordered him to get down against the wall. Perry

complied after a brief protest. Watts then searched the

apartment, finding chunks of crack cocaine, clear Ziploc bags,

and razor blades in a bedroom.

When Watts returned from the search, Perry ran for the

door, knocking Keithley over in his haste to escape. Perry

maintained that he fled because the officers started punching

him after he asked what was going on. The officers both

testified that they did not punch Perry, but did acknowledge

that when Perry rushed into Keithley, Watts struck him with

his gun and punched him. Perry successfully escaped and ran

down to the third floor. Keithley followed him, gun drawn,

while Watts stayed behind to secure apartment 501.
No. 10-3979 3

Keithley testified that Perry popped out from behind a

corner, rushed toward him, grabbed his shoulders, and tried to

grab his gun. Keithley said he tried to punch Perry in the face

but instead hit him in the shoulder; at this point his gun went

off, striking Keithley in the arm. Perry then attempted to

escape behind Keithley, knocking Keithley off-balance in the

process. Keithley shot at Perry while falling to the floor. One

bullet struck Perry in the thigh, and another struck him in the

back.

Perry denied reaching for Keithley’s gun, instead

contending that Keithley yelled, “Freeze, motherfucker, orI’m

going to shoot.” Perry said he kept running and felt a bullet rip

through his thigh shortly thereafter. He was still able to run,

and kept doing so until a second bullet hit his back and

brought him to the ground. Perry said he did not know how

Keithley was shot, but suggested in a written statement that

Keithley had either shot himself or had Watts shoot him. 

Watts called an ambulance, which took Perry to Cook

County Hospital. A few days later, Perry was transferred to

Cermak Health Services in the Cook County Jail. When he

arrived at Cermak, he was admitted under the name “Ricky

Johnson”; previously, when in Illinois Department of

Corrections custody, Perry had provided this alias.

Perry was charged with attempted murder, aggravated

battery with a firearm, and disarming a peace officer. A jury

found him not guilty of these charges on July 24, 2009.

While the charges against him were pending, Perry filed

suit against Officers Keithley and Watts, and against the City

of Chicago, claiming violations of both federal and Illinois civil
4 No. 10-3979

rights laws. Specifically, Perry’s second amended complaint

asserted claims under 42 U.S.C. § 1983 against both officers

(alleging excessive force, failure to intervene to prevent

excessive force, false arrest, and malicious prosecution) and an

Illinois malicious prosecution claim. It also sought

indemnification of the officers by the City. The claims against

Watts were dismissed prior to trial.

Before Perry’s civil trial, he filed motions in limine seeking

to bar reference to his criminal background, his

contemporaneous incarceration on unrelated criminal charges,

and his gang membership. The magistrate granted the motions

concerning Perry’s present incarceration and his gang

membership without objection. The court granted in part and

denied in part the motion concerning Perry’s criminal

background, allowing evidence only that Perry was convicted

of a crime in 2004 for which he was on parole at the time he

was shot. 

When trial began on the afternoon of November 8, 2010,

Perry asserts that uniformed guards from the Cook County

Department of Corrections attended the trial to keep watch

over Perry. At the end of that first day, the magistrate

remarked, “civilian clothing tomorrow.” Perry did not object

to the guards’ presence, nor to the comment about civilian

clothing.

During a sidebar before Perry took the stand, he sought

clarification regarding testimony about the name Ricky

Johnson. Perry expressed concern that bringing up Ricky

Johnson would open the door to other, prior arrests during

which he had also used the name. The magistrate ruled that
No. 10-3979 5

questioning concerning the use of the alias in other arrests

would violate his ruling on the motion in limine to bar

evidence of Perry’s criminal background. But, he further

explained that questioning about the use of an alias during the

2004 arrest was “fair game.” Perry then testified on direct

examination that he gave the name Ricky Johnson during the

2004 arrest. During cross-examination, counsel for Keithley

and the city asked Perry a few additional questions, probing

whether Perry gave a fake name during his 2007 arrest

following the shooting and how the name Ricky Johnson

appeared on Perry’s medical records.

Later, Watts testified on direct examination that the people

who pointed him to apartment 501 also mentioned that

“gangbangers” were running drugs and guns into 527 East

Browning. Perry objected, citing the court’s ruling on his

motion in limine to bar reference to Perry’s gang membership.

The magistrate permitted the testimony but warned counsel

that she was “traipsing into areas of gang activity” and that she

was “really operating very close to the edge.”

The morning of the final day of trial, one of the jurors

(“Mrs. A”), saw the marshals lead Perry from the freight

elevator and into the courtroom. At the time, Perry was

wearing a suit and tie but was handcuffed in front. He held his

hands in such a way that it was not obvious he was

handcuffed. The magistrate discussed the matter with both

parties, and all agreed that the magistrate should discuss the

encounter with Mrs. A. The magistrate asked Mrs. A about the

encounter outside the presence of the other jurors, and she

acknowledged that she had seen Perry that morning. When the

magistrate asked if she had noticed anything in particular
6 No. 10-3979

about Perry, Mrs. A responded that she looked down, did not

pay attention to Perry or make eye contact, and did not recall

anything in particular. She did mention that there were several

other people in the hallway with Perry, but also said she did

not think anything of it. She had not discussed the incident

with the other jurors.

After speaking with Mrs. A, the magistrate discussed the

incident with the attorneys. All agreed that nothing further

needed to be done, except that the magistrate should instruct

Mrs. A not to discuss the incident with the other jurors. The

magistrate did so, and closing arguments proceeded as

scheduled.

The jury found in favor of defendants Keithley and the

City, rejecting Perry’s claims. Perry now appeals that verdict.

II. ANALYSIS

Perry claims that the district court erred in three ways: (1)

permitting questioning as to whether he used an alias during

the arrest that gave rise to his civil suit, (2) permitting

testimony that “gangbangers” were present in the apartment

where Perry was found, and (3) allowing Perry to appear

surrounded by uniformed guards on the first day of trial, and

permitting a juror to see Perry in handcuffs on his way to

court.

A. Questioning about Perry’s Alias and Testimony about

“Gangbangers”

Perry first argues the court erred by permitting questioning

about Perry’s alias and testimony about the presence of

“gangbangers” in apartment 501, given its prior in limine
No. 10-3979 7

rulings. Perry does not challenge the motions in limine

themselves, but rather asserts that the court violated its own

rulings by admitting the alias and gangbangers testimony.

Trial courts issue rulings on motions in limine to guide the

parties on what evidence it will admit later in trial. As a trial

progresses, the presiding judge remains free to alter earlier

rulings. Luce v. United States, 469 U.S. 38, 41–42 (1984); Farfaras

v. Citizens Bank & Trust of Chi., 433 F.3d 558, 565 (7th Cir. 2006).

This court reviews a district court’s evidentiary rulings for

abuse of discretion. Common v. City of Chicago, 661 F.3d 940, 946

(7th Cir. 2011). We will reverse only if no reasonable person

would agree with the trial court’s ruling and the error likely

affected the outcome of the trial. Farfaras, 433 F.3d at 564

(citations omitted). Thus, a court’s determination that a piece

of evidence falls within (or outside) a motion in limine will be

reversed only if that determination constituted such an abuse.

If evidence did not violate the ruling in limine, the court’s

decision to admit it cannot be an abuse of discretion. Willis v.

Lepine, 687 F.3d 826, 839 (7th Cir. 2012).

1. The Alias

Before trial, the magistrate issued a motion in limine

ruling with regard to Perry’s criminal background that

permitted “only evidence that plaintiff was convicted of a

crime in 2004, served a sentence of 17 months incarceration,

and was on parole for that offense at the time of the incident

at issue in this trial.” It was directed only to Perry’s

“criminal background” and thus did not bar evidence of the

arrest that gave rise to Perry’s claim. At trial during a

sidebar discussing this ruling, the court additionally barred
8 No. 10-3979

testimony concerning the use of an alias in any prior arrests,

while noting that counsel could still elicit testimony about

Perry’s use of the Ricky Johnson alias in connection with the

2004 conviction. Later, the magistrate overruled Perry’s

objection to questioning about whether he used the alias.

Perry argues that the discussion during the sidebar

barred any testimony concerning the use of Ricky Johnson

during the 2007 encounter with Keithley and Watts because

the magistrate prohibited testimony about the use of the

alias “in other arrests.” (Appellant’s Br. at 9–10.) This

argument, however, ignores the context of the sidebar

discussion. The magistrate was considering his ruling on

Perry’s criminal background, not the use of an alias during the

events that led to Perry’s civil suit. Perry’s counsel himself

phrased his concerns in terms of Perry’s past arrests. Given

this context, we cannot say that the magistrate abused his

discretion by later permitting questioning as to whether

Perry used an alias during his 2007 arrest.

2. “Gangbangers”

In the same pre-trial ruling, the magistrate granted Perry’s

motion to bar reference to Perry’s gang membership without

objection. Perry argues that Watts’s testimony that a bystander

told him “gangbangers were running the guns and the drugs

up into 527 East Browning” violated this motion in limine and

thus the failure to correct it constituted an abuse of discretion

by the trial court. 

The motion in limine, however, specifically barred

reference to Perry’s gang membership. It did not address

evidence of gang activity in 527 East Browning or apartment
No. 10-3979 9

501. Watts’s gangbangers statement did not explicitly refer to

Perry’s own gang membership, and thus did not fall within the

prior motion in limine ruling. Although it could be argued that

the testimony would have allowed the jury to infer that Perry

was also a gangbanger, we reverse for abuse of discretion only

where “no reasonable person would agree with the trial court’s

ruling.” Aldridge v. Forest River, Inc., 635 F.3d 870, 875 (7th Cir.

2011).

B. The Uniformed Guards and Handcuffs

Perry also argues that the court failed to shield his

incarceration from the jury, as the magistrate indicated he

would do in a pretrial ruling. Perry asserts that the uniformed

guards in the courtroom on the first day of trial and Mrs. A’s

glimpse of him surrounded by marshalsprejudiced him before

the jury.

Perry did not object to either event at trial. Thus, at most,

we can review his claim for plain error. Stringel v. Methodist

Hosp. of Indiana, Inc., 89 F.3d 415, 421 (7th Cir. 1996). In most

civil cases, plain error review is unavailable; if a party fails to

object at trial, the issue cannot be raised on appeal. Id. A

narrow exception to this general rule permits review where a

party can demonstrate that (1) exceptional circumstances exist,

(2) substantial rights are affected, and (3) a miscarriage of

justice will result if the doctrine is not applied. Estate of

Moreland v. Dieter, 395 F.3d 747, 756 (7th Cir. 2005).

Perry attempts to make this showing, but fails on the first

and third elements. He suggests that exceptional circumstances

existed because he was incarcerated at the time of the hearing,

but the magistrate barred all reference to the fact that he was
10 No. 10-3979

incarcerated. (Appellant’s Br. at 16.) But this “exceptional

circumstance” does not provide any explanation for why Perry

failed to object at trial. See Kafka v. Truck Ins. Exchange, 19 F.3d

383, 386 (7th Cir. 1994) (“[The plaintiff] does not direct us to

any exceptional circumstances which caused his failure to

object to the questions propounded to him during crossexamination.”).Perry does point to a substantial right that may

have been affected by the trial court’s ruling—his right to a fair

trial—but that alonedoes not necessitate plain errorreview. See

Stringel, 89 F.3d at 421–22. As for the third element, Perry does

not demonstrate that a miscarriage of justice will occur if the

district court’s actions are not deemed clearly erroneous. The

only evidence that uniformed guards were present on the first

day is the magistrate’s statement, “civilian clothes tomorrow.”

Additionally, the magistrate took several steps to guarantee

that Mrs. A’s sighting of Perry did not infect the jury

deliberations. Even though Mrs. A apparently did not notice

Perry’s handcuffs or the marshals accompanying him, the

magistrate clearly instructed her not to discuss the incident

with any of the other jurors. Because Perry cannot make the

necessary showing, we will not excuse his failure to timely

object and will not perform plain error review.

III. CONCLUSION

Forthe above reasons, we AFFIRMthe decision of the district

court.