In the 

United States Court of Appeals 

For the Seventh Circuit ____________________

No. 17‐3466

UNITED STATES OF AMERICA,

Plaintiff‐Appellee,

v.

MARCO PROANO,

Defendant‐Appellant.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:16‐cr‐00590‐1 — Gary Feinerman, Judge.

____________________

ARGUED OCTOBER 23, 2018 — DECIDED JANUARY 7, 2019

____________________

Before KANNE, HAMILTON, and ST. EVE, Circuit Judges.

ST. EVE, Circuit Judge. On‐duty officer Marco Proano fired

sixteen shots at a moving sedan filled with teenagers until the

car idled against a light pole. He hit two passengers. The gov‐

ernment charged Proano with two counts of willful depriva‐

tion of constitutional rights, one for each injured passenger,

and a jury convicted on both counts. 18 U.S.C. § 242. Proano

appeals, claiming both pretrial and trial errors. We affirm.  
2 No. 17‐3466

I. Background

A. The Shooting  

Around 5:00 p.m. on December 22, 2013, two Chicago Po‐

lice Department (CPD) officers, Ken Flaherty and Jonathan

Morlock, stopped a gray Toyota Avalon on Chicago’s

southside. The Toyota had just sped out of an alley. The driver

fled on foot, leaving one passenger in the front seat and four

or five (as far as Flaherty could tell) in the backseat. Morlock

pursued the driver; Flaherty stayed with the Toyota. Before

fleeing, the driver did not, apparently, put the car in park, and

it rolled toward Flaherty and his squad car. The Toyota

wedged itself between Flaherty’s squad car and another car

parked on the street.  

Jaquon Grant had been in the passenger seat. He too tried

to escape as the car rolled forward, but his legs got stuck be‐

tween Flaherty’s squad car and the Toyota. Grant tried to

break free, and Flaherty assured him that when backup ar‐

rived Flaherty would assist him. Flaherty shouted commands

to the other passengers—“stay still,” “quit moving”—but

they did not obey. One passenger, thirteen‐year‐old Kevon

Brown, attempted to flee, but stopped while hanging out of

an open backseat window, with his head above the roof. Fla‐

herty dispatched for backup.

Moments later, Proano and his partner, Guy Habiak, ar‐

rived in their squad car. Proano exited the car, with his

weapon in one hand, cocked, and aimed at the Toyota. Sec‐

onds later, Delquantis Bates, who had been in the back seat of

the Toyota, reached over the center console and pressed his

hand on the gas pedal. The car, still wedged, revved but did

not move. Bates then put the car in reverse and pressed the
No. 17‐3466 3

pedal again. The Toyota jolted free and began to reverse. No

one was in its path.  

As the car retreated, three things happened: a metal BB

gun fell to the ground from the Toyota, Grant freed himself,

and Proano began shooting at the Toyota. Flaherty quickly

apprehended Grant. Habiak picked up the gun and handed it

to Flaherty, saying “Gun. Here’s the gun. Here’s the gun.”

And Proano continued to shoot at the Toyota as it stopped,

pivoted, and rolled forward into a light pole. Ten of Proano’s

sixteen bullets entered the Toyota. One bullet hit Bates’s

shoulder, while others grazed his face. Two bullets hit another

passenger, David Hemmans, in his leg and foot. No other of‐

ficer fired his weapon.  

After the shooting, Proano completed two Tactical Re‐

sponse Reports, forms upon which the CPD relies to docu‐

ment use‐of‐force incidents. On both forms, Proano admitted

to firing his weapon sixteen times. He indicated that he did so

because an “assailant” presented an “imminent threat of bat‐

tery” and so he “use[d] force likely to cause death or great

bodily harm.” The assailant’s weapon, according to Proano’s

reports, was an “automobile.” Proano did not identify the BB

gun as a contributing factor in his decision to shoot in the re‐

ports. Still on the scene, however, Proano informed CPD de‐

tective Stanley Kalicki that he heard one of the other on‐site

officers identify a gun. Proano also told Kalicki that he fired

his weapon because he feared for Brown, who, according to

Proano, “was being dragged” by the Toyota.  

Months later, Proano discussed the shooting with the In‐

dependent Police Review Authority (IPRA)—a now‐defunct

body, which at the time investigated allegations of police
4 No. 17‐3466

misconduct.1 In March 2015, IPRA Investigator Dennis Prieto

met with FBI agents to discuss the shooting. No one involved

in that meeting believed that they discussed Proano’s state‐

ments to IPRA. The FBI agents received material from Prieto,

including documents reflecting Proano’s statements to IPRA

investigators. The FBI agents then passed those documents to

the government’s “filter team” for review.  

B. The Prosecution

On September 15, 2016, a grand jury returned a two‐count

indictment against Proano for willfully depriving Bates and

Hemmans of their constitutional rights—namely, their Fourth

Amendment right to be free from unreasonable force—in vi‐

olation of 18 U.S.C. § 242.  

Proano filed a motion to dismiss the indictment. He ar‐

gued that the FBI agents’ meeting with Investigator Prieto led

to the disclosure of statements protected by Garrity v. New Jer‐

sey, 385 U.S. 493 (1967) (a decision we explain below), and that

the disclosure tainted the prosecution against him. The dis‐

trict court held a hearing, in which Prieto and the FBI agents,

Larissa Camacho and Eugene Jackson, testified. The district

court then denied Proano’s motion on two independent

grounds. First, it found no evidence of “seepage or taint” of

Proano’s Garrity‐protected statements in the prosecution. Sec‐

ond, the district court found “legitimate independent

sources” for any information the government could have

gleaned from Proano’s Garrity‐protected statements,

                                                 

1

Because Proano’s statements to IPRA are immune under Garrity v. New

Jersey, 385 U.S. 493 (1967), and because resolution of this appeal does not

require delving into the specifics of Proano’s statements, we are intention‐

ally vague about their contents.  
No. 17‐3466 5

assuming the government had seen them. The case proceeded

to trial.

Before trial, Proano moved in limine to exclude evidence

relating to his training on CPD policies and procedures. He

submitted that such evidence was irrelevant and that the gov‐

ernment’s witnesses—Sergeant Larry Snelling and officer

Vincent Jamison, neither of whom recalled training Proano—

lacked sufficient personal knowledge to testify regarding the

training Proano received. The government filed a reciprocal

motion in limine, asking the court to exclude evidence of

Proano’s training on when use of force was appropriate under

state law. The district court resolved the relevance of both

pieces of evidence with the same stroke—both parties could

use their respective training‐related evidence either to help

prove or disprove that Proano acted willfully. Proano, specif‐

ically, could argue that his actions comported with his state‐

law training, and so he thought them reasonable; the govern‐

ment, meanwhile, could argue that Proano’s actions violated

his CPD training, which could be relevant to his state of mind.

The district court reserved ruling on the foundational ques‐

tion. It also deferred on resolving questions about the rele‐

vance of certain training‐related evidence, such as whether

Proano was trained not to fire into a crowd or buildings.  

Trial began on August 21, 2017, and lasted six days.

Among other government witnesses, Flaherty, Bates, and

Brown described what occurred the night of the shooting;

Kalicki explained Proano’s statements after the shooting; and

CPD Sergeant Timothy Moore detailed Proano’s post‐shoot‐

ing reports. Snelling and Jamison also testified.  

Snelling described the CPD’s use‐of‐force policies, which

he taught at the academy. He could not testify with certainty
6 No. 17‐3466

that he taught Proano. He was, however, familiar with the

training that recruits received when Proano was a recruit at

the academy, because trainers used a “common curriculum”

and often sat in on each other’s classes to ensure consistent

messaging. Regarding the CPD’s training, Snelling testified

that use of deadly force is appropriate only when an assailant

is likely to cause death or serious physical injury. Snelling tes‐

tified that recruits learn not to shoot into buildings, windows,

or openings without clear visibility, and they learn not to

shoot into crowds. Snelling also testified that recruits learn

not to fire at a moving vehicle unless doing so is necessary to

protect the life of another.  

Jamison testified about firearms training, which he over‐

saw at the academy. He too could not recall whether he per‐

sonally trained Proano, but Jamison stated that every firearms

instructor at the academy works from the same preapproved

lesson plans. Jamison testified that recruits learn to hold a

weapon with two hands absent necessary circumstances, and

they learn neverto point a gun merely as a show of force. CPD

firearms instructors also taught recruits to stop and “assess”

whether a threat is ongoing after firing a few shots, though he

also testified that recruits learn to shoot “to eliminate the

threat.”  

In addition to this testimony, the government introduced

video footage of the shooting. The footage, taken from

Proano’s dashcam, showed the shooting unobstructed and in

its entirety. The jury saw real‐time and slow‐motion versions

of the footage.

At the close of evidence, the parties discussed and debated

jury instructions. Only one instruction‐related debate is rele‐

vant here: Proano proposed a (lengthy) instruction on
No. 17‐3466 7

“willfulness,” the necessary mens rea for § 242, but the district

court rejected it as redundant and confusing. The district

court, instead, instructed the jury on willfulness using an in‐

struction it crafted with the parties’ input.  

After closing arguments and deliberation, the jury con‐

victed Proano on both counts. The district court later denied

Proano’s posttrial motion, ruling in part that the court had

properly admitted Snelling’s and Jamison’s testimony and

that the government had laid an adequate foundation fortheir

respective testimony. The district court then sentenced

Proano to sixty months in prison. This appeal followed.

II. Discussion

Proano challenges four issues on appeal: (1) the denial of

his Garrity motion; (2) the admission of training and policy

evidence; (3) the accuracy of the jury instruction on willful‐

ness; and (4) the sufficiency of the evidence. We take each

challenge in turn.  

A. The Garrity Motion  

Proano first claims that the government violated his rights

under Garrity. The Fifth Amendment assures defendants that

they will not be compelled to testify against themselves. Gar‐

rity expounded upon that general right in a particular context,

that of public‐official investigations. Garrity held that when a

public official must choose between cooperating in an internal

investigation or losing his job, the statements he makes dur‐

ing the investigation are compelled, and, as such, they cannot

later be used against the official in a criminal trial. 385 U.S. at

500. In deciding whether the government violated Proano’s

rights under Garrity, we review the district court’s legal
8 No. 17‐3466

conclusions de novo and its factual findings for clear error.

United States v. Cozzi, 613 F.3d 725, 728 (7th Cir. 2010).  

Proano’s Garrity challenge does not get far. He spoke to

IPRA under the threat of job loss, and his statements were

thus compelled and Garrity‐protected. But after that his chal‐

lenge fails, in three different ways.  

First, federal investigators and prosecutors cannot misuse

Garrity‐protected statements if they are never exposed to the

statements. See id. at 732. The government, in this case, set up

a filter team to receive and review IPRA’s materials. The filter

team then redacted any protected statements before handing

the materials over to the prosecution team. No evidence sug‐

gests that this process was flawed or that Garrity‐protected

statements slipped through. The district court also found that,

despite some ambiguous evidence, the FBI agents and the

IPRA investigator did not discuss Proano’s statements during

the March 2015 meeting. As a result, the district court found

that there was no “seepage or taint” of Proano’s Garrity‐pro‐

tected statements to the FBI agents or the prosecution team.

Proano’s only challenge to this conclusion of fact is to rehash

evidence thoroughly considered and weighed by the district

court. That is not clear error.  

Second, even if the prosecution could have accessed

Proano’s protected statements, there is no constitutional vio‐

lation if the government can establish “a legitimate source

wholly independent of the compelled testimony” for the evi‐

dence. Kastigar v. United States, 406 U.S. 441, 460 (1972); see also

United States v. Velasco, 953 F.2d 1467, 1474 (7th Cir. 1992).

Here, the district court specifically found that the dashcam

video, other witness accounts, and police reports all provided

independent bases from which the prosecution could have
No. 17‐3466 9

learned of the facts Proano described in his Garrity‐protected

statements. Proano makes no attempt to demonstrate that

these findings were clearly erroneous.

Third, Proano misunderstands Garrity’s protections. He

argues a syllogism: Investigator Prieto knew of the Garrity‐

protected statements, and Prieto’s meeting with the FBI

agents prompted the federal investigation; thus, the investi‐

gation made derivative use of the Garrity‐protected state‐

ments. This reasoning is interrupted by the district court’s

findings that Prieto did not disclose Garrity‐protected state‐

ments and that, even if he did, there were independent

sources for the information. What survives of Proano’s argu‐

ment is only the theory that Prieto tainted the prosecution

with Garrity‐protected statements simply by knowing of the

statements and meeting with FBI agents. That does not fol‐

low, as a matter of logic or law. As we said in Cozzi, we “are

not concerned with how” an investigator who knows of Gar‐

rity‐protected statements “may have influenced the federal

investigation, but rather how [the defendant’s] statements in‐

fluenced the investigation.” Cozzi, 613 F.3d at 731 (emphasis

in original). The district court did not clearly err in concluding

that Proano’s statements did not reach the investigators and

prosecutors.

B. Admissibility of the Training and Policy Evidence

Proano next claims that the district court made three er‐

rors in admitting evidence of his training and the CPD’s poli‐

cies. He argues: (1) the evidence was irrelevant; (2) it was un‐

fairly prejudicial and confusing; and (3) Snelling and Jamison

did not establish an adequate foundation to testify to the evi‐

dence. We review evidentiary rulings for an abuse of discre‐

tion. United States v. Parkhurst, 865 F.3d 509, 513 (7th Cir. 2017).
10 No. 17‐3466

We will reverse a ruling only if no reasonable person would

agree with the district court’s view. United States v. Ajayi, 808

F.3d 1113, 1121 (7th Cir. 2015).2  

1. Relevance Under Rule 401

Proano’s position on the relevance of the training and pol‐

icy evidence has evolved during this appeal. In his papers, he

thought such evidence irrelevant to show intent as a matter of

law. At oral argument, he submitted that the specific evidence

used at trial was inadmissible. Both positions are mistaken.  

To be admissible, evidence must be relevant. Fed. R. Evid.

402. To be relevant, evidence must tend to make a fact of con‐

sequence at trial more or less probable. Fed. R. Evid. 401. This

is a “low threshold.” Tennard v. Dretke, 542 U.S. 274, 285 (2004);

see also United States v. Boros, 668 F.3d 901, 907 (7th Cir. 2012).

The Federal Rules of Evidence do not permit only decisive,

controlling, or the “most” probative evidence. United States v.

McKibbins, 656 F.3d 707, 711 (7th Cir. 2011). If evidence can

help jurors answer the questions they must ask, the Rules per‐

mit its admissibility in the absence of a rule or law to the con‐

trary. Fed. R. Evid. 402; United States v. Causey, 748 F.3d 310,

316 (7th Cir. 2014).

The government charged Proano with violating 18 U.S.C.

§ 242. Section 242 prohibits the willful deprivation of rights

under color of law, and individuals (Bates and Hemmans in‐

cluded) have the Fourth Amendment right to be free from un‐

reasonable uses of deadly force. Tennessee v. Garner, 471 U.S.

1, 10–11 (1985). The two most pressing questions for the jury,

                                                 

2

Because the district court did not abuse its discretion in admitting evi‐

dence of Proano’s training, for reasons that follow, we need not consider

whether any error was harmless. Fed. R. Crim. P. 52(a).  
No. 17‐3466 11

then, were whether Proano used deadly force unreasonably

and, if so, whether he did so willfully. The district court ruled

that Proano’s intent—willful or not—was the fact that could

be made more or less probable by evidence of Proano’s train‐

ing. That decision was not an abuse of discretion.  

We have before recognized that evidence of departmental

policies can be relevant to show intent in § 242 cases. United

States v. Aldo Brown, 871 F.3d 532, 538 (7th Cir. 2017); United

States v. David Brown, 250 F.3d 580, 586 (7th Cir. 2001). Other

circuit courts have as well. United States v. Christopher A.

Brown, 654 F. App’x 896, 910 (10th Cir. 2016); United States v.

Rodella, 804 F.3d 1317, 1338 (10th Cir. 2015); United States v.

Dise, 763 F.2d 586, 588 (3d Cir. 1985). Those decisions, ex‐

pressly or impliedly, acknowledge that an officer’s training

can help inform his state of mind in certain circumstances. If,

for example, an officer has been trained that officers should

do certain things when confronted with tense situations, and

he does those things, the fact that he acted in accordance with

his training could make it less likely that he acted willfully.

See Aldo Brown, 871 F.3d at 538. And vice versa: If, as here, an

officer has been trained that officers should not do several

things when confronted with tense situations, yet he does

those things anyway, the fact that he broke from his training

could make it more likely that he acted willfully. The district

court correctly accounted for both sides of the coin, admitting

both Proano’s and the government’s proposed training‐re‐

lated evidence.  

Proano nevertheless argues that the government’s evi‐

dence of his training was inadmissible, relying mostly on

Thompson v. City of Chicago, 472 F.3d 444 (7th Cir. 2006).

Thompson concerned 42 U.S.C. § 1983, and it held that the
12 No. 17‐3466

CPD’s General Orders (essentially, formal policy statements)

were not relevant to proving whether force was constitu‐

tional. Thompson, 472 F.3d at 454. This is because the Fourth

Amendment, not departmental policy, sets the constitutional

floor. Id. at 454; see also Whren v. United States, 517 U.S. 806,

815–16 (1996); Scott v. Edinburg, 346 F.3d 752, 760–61 (7th Cir.

2003). Since Thompson, however, we have clarified that there

is no per se rule against the admission of police policies or

training. Aldo Brown, 871 F.3d at 537–38; see also Florek v. Vil‐

lage of Mundelein, 649 F.3d 594, 602–03 (7th Cir. 2011) (regard‐

ing expert testimony). We explained in Aldo Brown that such

a rule would be especially excessive in the § 242 context,

where an officer’s intent is at issue and the defendant has a

constitutional right to present a defense. 871 F.3d at 538.

Thompson did not address whether evidence of police policy

or training can be relevant to intent; § 1983, unlike § 242, is a

civil statute that lacks a specific‐intent requirement. See Kings‐

ley v. Hendrickson, 135 S. Ct. 2466, 2472 (2015). Thompson there‐

fore offers no guide here.  

Still, Proano presses, even if some evidence of training

may be relevant, the government’s evidence in this case was

not because it concerned CPD‐specific training. Proano seizes

on language from Aldo Brown, which said that evidence of

“widely used standardized training or practice[s]” could be

relevant to show an officer’s intent in § 242 cases. 871 F.3d at

538. Proano characterizes the CPD’s training as “localized”

and not “widely used,” and therefore not relevant. That char‐

acterization is suspect; the CPD is the second‐largest police

force in the country. David B. Goode, Law Enforcement Policies

and the Reasonable Use of Force, 54 WILLAMETTE L. REV. 371, 372

(2018). Regardless, neither Aldo Brown nor common sense lim‐

its the pool of admissible training‐related evidence of intent
No. 17‐3466 13

to national, model, or interdepartmental standards. Assum‐

ing those standards exist,3 only evidence of training that the

officer actually received can be relevant to his state of mind.

Accord United States v. Trudeau, 812 F.3d 578, 591–92 (7th Cir.

2016), cert. denied, 137 S. Ct. 566 (2016); United States v. Kokenis,

662 F.3d 919, 930 (7th Cir. 2011).  

Proano’s remaining arguments go to the weight of the ev‐

idence, not its relevance. He asserts that the prohibition on

shooting into windows and crowds was not relevant because

that training did not concern cars. But as the district court rea‐

sonably concluded, four or five people in the back of a car

could constitute a crowd. Proano also asserts that his firearms

training was not relevant because that training occurred in a

controlled environment. Yet Jamison testified that the fire‐

arms training was not training for training’s sake, but rather

it was intended to have real‐word application. Proano’s argu‐

ments were ones for the jury, not us. See United States v. Firi‐

shchak, 468 F.3d 1015, 1021 (7th Cir. 2006); Williams v. Jader Fuel

Co., 944 F.2d 1388, 1403 (7th Cir. 1991).

The probative value of an officer’s training, like most any

evidence, depends on case‐specific factors. Those factors are

too many to list, but no doubt included are the training’s re‐

cency and nature, representativeness of reasonable practices,

standardization, and applicability to the circumstances the of‐

ficer faced. Whatever its ultimate strength, evidence of an of‐

ficer’s training can be relevant in assessing his state of mind.

The district court carefully assessed the evidence and the

                                                 

3 Proano emphasizes that only national standards can be relevant. The

United States does not have a national police force, and Proano has not

pointed us to what more widely used policies could have been relevant

here.
14 No. 17‐3466

state‐of‐mind inquiry in this case, and it did not abuse its dis‐

cretion in admitting the evidence of Proano’s training.  

2. Prejudice and Confusion Under Rule 403

A court may exclude relevant evidence if its probative

value is substantially outweighed by risks of unfair prejudice

or confusion. Fed. R. Evid. 403. Proano argues the evidence of

his training presented those risks, and that the district court

abused its discretion in not recognizing as much. Rule 403

speaks of what a district court “may” do, so we review a Rule

403 decision for abuse of discretion. More than that, a Rule

403 decision “is entitled to special deference” because only “in

an extreme case are appellate judges competent to second‐

guess the judgment of the person on the spot, the trial judge.”

United States v. Jackson, 898 F.3d 760, 764 (7th Cir. 2018).

No risk of unfair prejudice or confusion substantially out‐

weighed the probative value of Proano’s training. Proano con‐

tends that the jury could have thought the training evidence

mattered to whether his use of force was objectively reasona‐

ble, a question for which it is generally inadmissible. See Aldo

Brown, 871 F.3d at 536–37; Thompson, 472 F.3d at 454. But that

risk was minimal. At the close of evidence, the district court

instructed the jury:  

You have heard evidence about training the defend‐

ant received relating to the use of deadly force. You

should not consider this training when you decide

whether the defendant’s use of force was reasonable

or unreasonable. But you may consider the training
No. 17‐3466 15

when you decide what the defendant intended at the

time he acted.4  

See Rodella, 804 F.3d at 1338 (approving a similar instruction);

see also United States v. Schmitt, 770 F.3d 524, 535 (7th Cir. 2014)

(proper jury instructions can cure potential prejudice); United

States v. Albiola, 624 F.3d 431, 440 (7th Cir. 2010) (same); Fed.

R. Evid. 403 advisory committee’s notes (1972) (explaining

that limiting instructions are a factor in weighing the danger

of unfair prejudice).  

Proano also contends that the training evidence was un‐

fairly prejudicial because it invited the jury to convict for

Proano’s failure to follow protocol. Proano was free to, and

did, argue to the jury that his training had little applicability

to the situation he faced, and the jury received the appropriate

instructions about what was required to convict and how to

use the evidence of his training. Proano identifies no grounds

to assume the jury believed that violating CPD policy

amounted to violating § 242.  

3. Foundation Under Rule 602

Proano alternatively contends that, even if the training ev‐

idence was admissible, it was not admissible through Snelling

and Jamison because their testimony lacked the proper foun‐

dation. Specifically, Proano argues, they both lacked “per‐

sonal knowledge of the training Proano received in 2006,”

when he was in the academy. Rule 602 allows a witness to

testify “to a matter only if ... the witness has personal

knowledge of the matter.” Fed. R. Evid. 602. “Evidence to

                                                 

4 For good measure, district courts should provide this or a similarinstruc‐

tion verbally before the parties offer a department’s policy or an officer’s

training into evidence, as well as at the close of evidence.
16 No. 17‐3466

prove personal knowledge may consist of the witness’s own

testimony.” Id.  

Snelling and Jamison could not recall whether they in‐

structed Proano at the academy, but that did not make their

testimony inadmissible under Rule 602. Snelling taught use‐

of‐force procedures in (and before) 2006. By virtue of that po‐

sition, Snelling was aware of the use‐of‐force training that re‐

cruits generally received while Proano was enrolled. He testi‐

fied that he was aware of what his colleagues taught at the

time and the academy’s common curriculum because of his

“cross‐training,” a practice that ensures consistency among

instructors. Jamison, too, taught while Proano attended the

academy. He testified about the academy’s weapons training

based on his familiarity with the academy’s preapproved les‐

son plans and syllabi, from which all firearms instructors

teach. Jamison further described the firearms principles to

which he testified as “basic,” “typical,” and “standard” at the

academy.  

Snelling and Jamison thus had personal knowledge of the

matters to which they testified, regarding the academy’s stock

training in 2006. It was for the jury to determine whether

Proano in fact received that training. Even if it were otherwise

and, as Proano submits, Snelling and Jamison purported to

testify regarding the training Proano actually received, the

testimony was still admissible. Personal knowledge can in‐

clude reasonable inferences drawn from a witness’s observa‐

tions and firsthand experiences. Widmar v. Sun Chem. Corp.,

772 F.3d 457, 460 (7th Cir. 2014); see also Visser v. Packer Eng’g

Assocs., Inc., 924 F.2d 655, 659 (7th Cir. 1991); United States v.

Giovannetti, 919 F.2d 1223, 1226 (7th Cir. 1990). Snelling and

Jamison each offered enough evidence of the homogeneity in
No. 17‐3466 17

the academy’s teachings (facts with which they had firsthand

experience) to establish their respective personal knowledge

of what Proano learned there (a reasonable inference). In ei‐

ther event, the district court did not abuse its discretion in ad‐

mitting Snelling’s and Jamison’s testimony.  

C. Willfulness Instruction

Proano’s next challenge is to the district court’s jury in‐

struction on willfulness, the mens rea requirement of § 242.

We review de novo whether an instruction fairly states the

law, and we review the decision to give a particular instruc‐

tion for an abuse of discretion. United States v. Maldonado, 893

F.3d 480, 486 (7th Cir. 2018).5

Section 242 is a specific‐intent crime. Aldo Brown, 871 F.3d

at 538; David Brown 250 F.3d at 584–85. It prohibits the willful

deprivation of constitutional rights. United States v. Lanier, 520

U.S. 259, 264 (1997). The Supreme Court first addressed this

crime (though at a time when it sat in a different part of the

U.S. Code) in Screws v. United States, 325 U.S. 91 (1945) (plu‐

rality). Screws explained that a defendant need not “have been

thinking in constitutional terms” to have willfully deprived

another of a constitutional right. Screws, 325 U.S. at 106. An

officer does, though, have the requisite intent under § 242

when he “is aware that what he does is precisely that which

the statute forbids.” Id. at 104; see also id. at 103–105 (an officer

violates § 242 when he acts with “a specific intent to deprive

                                                 

5 Proano submits that plain‐error review applies in assessing the district

court’s willfulness instruction. See Fed. R. Crim. P. 52(a). That is a puzzling

concession. Our review of the record suggests that he contested the in‐

struction adequately to preserve the issue for appeal, and the government

does not contend otherwise. We, therefore, will not apply plain‐error re‐

view.  
18 No. 17‐3466

a person” of constitutional rights or with “open defiance or in

reckless disregard of a constitutional requirement”); see also

Aldo Brown, 871 F.3d at 538. In United States v. Bradley, 196 F.3d

762, 770 (7th Cir. 1999), we added that “to act ‘willfully’ in the

§ 242 sense, the defendant must intend to commit an act that

results” in a constitutional deprivation.  

The district court in this case instructed the jury that

Proano acted willfully if he “intended to deprive” Bates or

Hemmans of their right to be free from unreasonable force. It

explained further:

The defendant acted intentionally if he used force

knowing that the force he used was more than what

a reasonable officer would have used under the cir‐

cumstances. The defendant did not act intentionally

if he did not know that the force he used was more

than what a reasonable officer would have used un‐

der the circumstances.

Proano argues that these instructions reduced the needed

mens rea and transformed § 242 into a general‐intent crime.

We disagree.  

The district court’s instruction was consistent with Bradley.

The court instructed the jury that it could convict only if

Proano acted intending to violate constitutional rights. See

Bradley, 196 F.3d at 769 (approving § 242 instruction that re‐

quired a finding of an act “with the intent” to deprive consti‐

tutional rights). The instruction then went a step beyond Brad‐

ley by defining what intent meant under § 242. It explained

that Proano had the requisite intent if and only if Proano

knew his force was not reasonable and used it anyway.  

There is no one definition of willfulness. Ratzlaf v. United

States, 510 U.S. 135, 141 (1994); see also United States v.
No. 17‐3466 19

Pulungan, 569 F.3d 326, 329 (7th Cir. 2009) (“‘Willfully’ is a no‐

toriously plastic word.”); Pattern Criminal Jury Instructions

of the Seventh Circuit 4.11 (2012 ed.) (willfulness is a statute‐

specific term). Yet the district court’s definition tracked how

most authorities understand the term. See, e.g., United States v.

Dobek, 789 F.3d 698, 700 (7th Cir. 2015) (willfulness in criminal

law often requires knowledge that one is violating the law)

(citations omitted). The Model Penal Code, as a prime exam‐

ple, states that willfulness is met “if a person acts knowingly

with respect to the material elements of the offense.” Model

Penal Code § 2.02(8); see also United States v. Ladish Malting Co.,

135 F.3d 484, 487 (7th Cir. 1998). More important than the gen‐

eral understanding of willfulness, though, the instruction—

requiring a finding that Proano acted “knowing” his actions

were an unreasonable use of force—is consistent with Screws,

which required that a defendant be “aware” he is doing what

the statute forbids in the § 242 context. Screws, 325 U.S. at 104;

see also Aldo Brown, 871 F.3d at 538.6 The instruction thus did

not, as Proano insists, permit a conviction based only on the

                                                 

6

Other circuit courts have described willfulness in the § 242 context some‐

what differently. See United States v. Cowden, 882 F.3d 464, 474 (4th Cir.

2018) (defining willfulness as “the particular purpose of violating a pro‐

tected right ... or recklessly disregard[ing] the risk that he would do so”)

(citations and alterations omitted); United States v. House, 684 F.3d 1173,

1199–1200 (11th Cir. 2012) (defining willfulness similarly); United States v.

McRae, 795 F.3d 471, 479 (5th Cir. 2015) (defining willfulness as conduct

done “voluntarily and intentionally and with the specific intent to do

something the law forbids”); United States v. Reese, 2 F.3d 870, 885 (9th Cir.

1993) (“the requisite specific intent is the intent to use more force than is

necessary under the circumstances”). Those definitions are not so dissim‐

ilar from the district court’s definition to cast doubt on our conclusion that

the district court fairly stated the law.  
20 No. 17‐3466

unreasonable use of force. Proano’s contrary reading takes

“knowing” out of the instruction.  

Proano also insists that the willfulness instruction is mis‐

leading when “juxtaposed” with the instruction on how the

jury could use Proano’s training‐related evidence (i.e., for in‐

tent but not objective‐reasonableness purposes). These in‐

structions, he claims, “blur the distinct” objective and subjec‐

tive parts of § 242 and are at odds with one another. We again

fail to see how. Both instructions were clear, concise, and

guided the jury in determining Proano’s subjective intent in

shooting at the Toyota. To that end, the instructions were

complimentary: one defined intent; the other told the jury

what evidence it could use in assessing intent. The district

court’s instructions provide no grounds to reverse.  

D. Sufficiency of the Evidence

Proano’s final contention is that trial failed to produce suf‐

ficient evidence to convict him. We can overturn the jury’s

verdict only if in viewing the record in the government’s favor

it is “devoid of evidence from which a reasonable jury could

find guilt beyond a reasonable doubt.” United States v. Wrobel,

841 F.3d 450, 454 (7th Cir. 2016). A defendant bears the burden

of convincing the court that “no rational trier of fact could

have found him guilty.” United States v. Warren, 593 F.3d 540,

546 (7th Cir. 2010). We have often said that this is a heavy bur‐

den—indeed a “nearly insurmountable” one. E.g., Maldonado,

893 F.3d at 484.

Proano has not met that burden. He first asserts that there

was insufficient evidence to prove that his actions were not

objectively reasonable. Reasonableness depends on the total‐

ity of the circumstances. Plumhoff v. Rickard, 134 S. Ct. 2012,
No. 17‐3466 21

2020 (2014). This calls for a balanced inquiry into “the nature

and quality of the intrusion on the individual’s Fourth

Amendment interests against the countervailing government

interests at stake.” Graham v. Connor, 490 U.S. 386, 396 (1989).

We must view the events through the lens of the officer in the

moment, not with 20/20 hindsight. Flournoy v. City of Chicago,

829 F.3d 869, 874 (7th Cir. 2016) (citing Graham, 490 U.S. at

396). The law, of course, allows for “the fact that police offic‐

ers are often forced to make split‐second judgments.” Graham,

490 U.S. at 397. Deadly force is generally reasonable when a

reasonable officer in the same circumstances would believe

that the assailant’s conduct put someone in the “immediate

vicinity in imminent danger of death or serious bodily in‐

jury.” Horton v. Pobjecky, 883 F.3d 941, 949 (7th Cir. 2018) (ci‐

tation omitted).

Based on the totality of the circumstances, Proano argues,

it was reasonable for him to believe that Brown and the other

passengers were in mortal danger and to act accordingly. He

emphasizes the chaos of the scene: Brown hanging out of the

Toyota, Grant stuck between Flaherty’s squad car and the

Toyota, the occupants’ refusal to show their hands, and the

car reversing. The dashcam video, however, provided ample

grounds for the jury to conclude that there was no danger

posed to anyone and, thus, no need for lethal force. The video

showed Brown sitting up out of a window, not being dragged.

The car reversed at a mild pace, and quickly slowed, redi‐

rected, and butted against a light pole. No bystander was near

it. Yet Proano shot and continued to shoot even after the

Toyota stopped its retreat.  

Nor does the BB gun’s presence at the scene show that the

jury erred in its conclusions. The officers’ first awareness of
22 No. 17‐3466

the gun was when it fell to the ground, and there was no evi‐

dence that any passenger threatened an officer with a

weapon. Cf. Garner, 471 U.S. at 11 (if a suspect threatens an

officer with a weapon, deadly force may be reasonable). Kal‐

icki’s testimony, moreover, suggested that the BB gun fell out

at the same time the shooting started. That fact, combined

with Proano’s immediate show of force and Proano’s post‐

shooting reports, which did not identify the BB gun, could

have reasonably led the jury to reject the idea that Proano

fired in reaction to the weapon.  

Proano relatedly posits that the government’s reliance on

the dashcam video, particularly its slow‐motion version, is (1)

inconsistent with the totality analysis required under the

Fourth Amendment and (2) distorts the in‐the‐moment expe‐

rience Proano felt. The jury heard, and clearly rejected, these

arguments. The jury saw at trial and had in deliberations the

real‐time dashcam video. It may well have reviewed that

video and found that no interpretation of the circumstances

supported the notion that someone was in danger.

Even if circumstances were sufficient to give rise to a lethal

threat reasonably requiring deadly force, a jury still could

have decided that Proano’s reaction was unreasonable.

Proano argues that the number of rounds he fired—sixteen—

is irrelevant, because officers reasonably shoot until the threat

is eliminated. That is correct in principle, see Plumhoff, 134 S.

Ct. at 2022, but wrong in application. The jury could have con‐

cluded (easily) that Proano continued to apply lethal force

even after the threat subsided. After the vehicle stopped re‐

versing and began inching toward the light pole, Proano con‐

tinued to fire several more shots into its side. See, e.g., Becker

v. Elfreich, 821 F.3d 920, 928 (7th Cir. 2016) (it is “well‐
No. 17‐3466 23

established that police officers cannot continue to use force

once a suspect is subdued”).

Proano next asserts that there was insufficient evidence to

prove that he willfully used unreasonable force. Again, how‐

ever, the dashcam video provided grounds for the jury to con‐

clude otherwise. The brazenness of Proano’s actions alone

could have supported the jury’s conclusion: despite the car

not threatening anyone’s safety, Proano fired sixteen shots at

it, including several after the car began idling. See Bradley, 196

F.3d at 769 (sufficient evidence of willfulness when an officer

fired at a car “to stop ... [its] flight” which, in the circum‐

stances, was “clearly unreasonable and excessive”). Add to

that how Proano, viewing the record in the government’s fa‐

vor, disregarded training by: using his gun, cocked, as an im‐

mediate show of force; discharging it into a group of people;

shooting at something into which he did not have visibility;

and never reassessing the situation until his magazine was

empty. The jury also could have disregarded Proano’s justifi‐

cations as inconsistent with the video evidence. Specifically,

although Proano reported concern for Brown, who he said

was being “dragged” by the Toyota, the jury could have con‐

cluded that assertion was flatly not believable in light of the

video, which showed Brown propped up out of the window

(and thus not “dragged”). In all, there was sufficient evidence

to convict Proano on both counts.

III. Conclusion

For these reasons, we AFFIRM the district court’s judg‐

ment.