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# United States Court of Appeals For the Seventh Circuit

No. 12-1529

D AR RE L L C AN NON

, Plaintiff-Appellant,

v.

J ON B URG E, former Chi cago Polic e Li eutenant, et al., Defen dants-Appellees.

Appe al f ro m the Uni ted S tates Distri ct Co urt fo r the Nor thern Distri ct o f Il l i noi s, Eastern Di v i sio n. No. 1: 05 -CV- 02 19 2 — Amy S t. Eve , Judg e.

A RGU E D J ANUAR

Y 22, 2013

— D E C I D E D M A Y 27, 2014

Before R I P PL E, R OVN E R

, Circ uit Judges , and B ARKE R , District Judge. *

R OVN E R , Circui t Judge. Th is a p peal casts a harsh li ght on
some of the darkest c or ners of li fe in Chi cago. The plainti ff, at

The Hono rab l e Sarah Evans Barker, of the Uni ted States Distri ct Co urt fo r * the So uthern Distri ct o f Indi ana, si tting by desi gna tio n.2 No. 12-1529
the tim e of the ev ents giving ris e to thi s sui t, w as a gener al in the El Rukn street gang, out on parole for a murder convic tion, when he becam e embroiled in a second murder

. Among the defendants are sev eral di sgraced poli ce offi cers, inclu ding the infamous Jon Burge, a man whose name ev oke s sham e and di sgust in the Ci ty of Chi cago. At i ssu e i s whether the plainti ff, 1 who long ago settled hi s clai ms again st the defendants, should be allo w ed to hav e a second chance to li tigate hi s cas e, on the gr ounds that the defendants engaged in such an ext ensi v e
cov er -up of the poli ce tor ture scan dal at the center of thi s case that the plainti ff w as effecti v ely deni ed hi s day in court the fi rst tim e aro und. The di stric t court held t ha t the settlement precluded further li tigati on and gr anted su mmar y judgment in fav or of the defendants. W e affi rm. I. In 1971, Darrell Cannon, the plainti ff here, w as convic ted of the murder of Emanu el Lazar and w as sentenced to 100 to 200

In a career spanning more than twenty years, Jo n Burge rose to the rank 1 of Co mmander i n the Chic ago Pol i ce Department b efo re he was f i r ed i n 19 93 f o r tor turi ng and ab using suspects i n or der to obtain conf essio ns. Mo re than one hundred Afr i can-Ameri can arre stees accused Burge and of fi c e r s worki ng under him of engag i ng i n sadisti c acts. Burge was l ater pro secuted and convicted on charges of obst ructi on of justi ce and perjury rel ated to l i es he tol d duri ng l aws uits fo r ci v i l dama ges. He i s c u r rentl y serving a fi fty-f our month sentence i n a fed eral peni tentiary. See United States v. Burge, 71 1 F.3d 80 3 (7 th Ci r.), cert. denied, 13 4 S. Ct. 31 5 (2 01 3) ; Press Rele ase, U.S

. Department of Justi ce, Former Chic ago Pol i ce Offi cer Jo n Burge S entenced fo r Lyi ng A b out Pol i ce Tor ture (Jan. 21 , 20 11 ) (av ail ab l e
a t http :/ /ww w .j u s tic e.gov/o pa/pr/2 01 1/Janua ry/1 1- crt-0 90 .html (l ast v i s ited May 23 , 2 01 4) ).No. 12-1529 3

y ears in pris on. After servin g tw elv e y ears of that sentence, Cannon w as paroled in January 1 9 83. Appro xim ately ten mont hs later

, on October 26, 1983, Cannon found hi mself behind the wheel of a car , tr av e l ing down the Bi shop For d F r e e w a y in Chi cago, as one of hi s fellow El Rukn gener als,

2 Andrew McChris tian

, murdered Darrin Ross in the b ack seat. C ann on then follow ed McChris tian ’s di rections to take the n e xt exit off the freew ay

, driving to a fi eld behind t he Altg eld Ga rdens housing complex. There, McChris tian and Can no n dumped Ross’s body onto the si de of a di rt ro ad adjo ining the fie l d. Not knowing whether Ross w as dead or ali v e, Cannon then drove McChris tian to a pool hall where Cannon pi cked up hi s own c ar and dro v e home. A few days later

, on Nov ember 2, 198 3 , Cannon w as
ar r e sted for Ross’s murder by three of the defendants in thi s case, Ser geant John Byrne and Detectives Peter Di gnan and C ha rles Grunhard. These men w or ked for the Chi cago P olic e Department’s Area 2 Vi olent Crimes di vis i on under tw o other defendants in this ca se, then-Commander Lero y Mar tin and then-Li eutenant Jon Burge. T oge ther wi th poli ce detectiv es Michael Bosco and Dani el M cW eeny, Byrne, Di gnan and Grunhard threat ened and tor tured Cannon unti l he confess ed that he knowingly partici pated in the murder of Darrin Ross. 3

At the time of the murder, this stretch of hi ghway was known as the 2 Calumet Expressway. It was renamed the Bi shop Ford Highway i n 19 96

. In his 2 01 0 d epo siti on, Cann on r efe rred to the ro ad as “the Bi shop Fo rd.”

Cann on conce des tha t he was dri v i ng the car i n which the mu r d e r was 3 carri ed out b ut contends tha t he di d not know tha t McChri stian was goi ng (co ntinued. ..)4 No. 12-1529
All of thi s w as accompani ed by race-based taunts and threat s. Each tim e Cannon thought he w a s safely aw ay from hi s tor ment o r s, he recanted hi s confess i on, and each tim e he recanted, he w as subjected to more t or ture. Almost i mmedi ately after leaving p olic e cus tody , Cannon recanted hi s confess i on again and began to complain about the tr eatment he receiv ed at the hands of these offi cers. Five days after hi s arr est, hi s wi fe fi led a complaint on hi s behalf wi th the Chi cago P olic e Department’s Offi ce of Professi onal St andards (“OPS”). But Byrne, Di gnan and Grunhard li ed to OPS, and the complaint w as di smi ssed as "not sus tain ed." At hi s cri minal tr i al in 1984, Cannon mov ed to supp ress hi s confess i on on the gr ounds that i t w a s obtained thro ugh tor ture and coerci on. Again Byrne, Di gnan and Grunhard as w ell as McW eeny li ed, thi s tim e under oath, denying that Cannon had been tor tured. The court deni ed the motion to su p p ress and Cannon's confess i on w as used at tr i al. In 1984, Cannon w as convic ted of Darrin Ross 's murder and sentenced to li fe in pri son. In Sept ember 1986, tw o y ears after hi s convic tion, Cannon filed a pro se federal complaint from pris on, assertin g fo r a thi rd tim e that By r ne, Di gnan and Grunhard had mi streat ed hi m. In particu lar

, he alleged that Di gnan beat hi m on the knee wi th a flashli ght; that Di gnan play ed “Russ i an Roulett e” wi th hi m wi th an apparently loaded shotgun, re p e a te d ly p l a c in g the barrel in Cannon’s mouth and pullin g t he tr i gge r when Canno n r e fus ed to answer questi ons; that Grunhard, Di gnan

( ...c onti nued) 3
to murder Ross. He explains tha t his actio ns fo l l owi ng the murder were due to shock at wha t had just o ccurre d.No. 12-1529 5
and Byrne li fted hi m up from behind by hi s handcuff s, caus ing unbearable pain; and that Byrne pulled down Cannon’s pants and shorts and appli ed an electric catt l e prod to hi s testic les, peni s and the insi de of hi s mouth repeat edly ov er an hour -long period as the offi cers questi oned Cannon about Ross’s murder

. Cannon sought from each offi cer “$15,000 in compens ator y and puni tiv e damages, plus phy si cal injuri es, p a in, suffering, emotional and mental di stress” as well as other relief the court deemed just and proper

. R. 28-2, at 42-48. The court appointed atto rne y E. P aul Lanphi er to repr esent Cannon. Lanphi er deposed Byrne, Di gnan, Grunhard and McW eeny and all four continued to li e under oath and deny that they had abus ed Cannon. Both Cannon and Lanphi er sus pected that C annon
w as not the only ar r e st e e who had been abus ed by these offi cers – indeed, there had be e n so me news repo rt s of other inci dents—but they di d not know that the abus e again st Afric an A me ric an men by Area 2 offi cers w as perv asi v e and occurred wi th the compli ci ty of Burge. They di d not know that many of the same bi zarr e and sadi sti c techni ques that these offi cers used again st Cannon had also been used again st many other Afric an Americ an men who had been arr ested in Area 2. Despi te t he ir sus pi ci ons, Lanphi er di d not ask the Ci ty or the indi vidu al defendants about any other vic tim s of the A r e a 2 offi cers. In 1988, Lanphi er a ss e ss e d Cannon's case in li ght of the fa ct s known to hi m at the tim e: Cannon w as now a twi ceconvic ted murderer

, a long-tim e gang member , sentenced to li fe in pris on, accu sing hi s arr esting offi cers of tor ture. Although Lanphi er be l i ev ed that the second murder convic tion

w ould be inadmi ssi

ble at the ci vil tr i al, he advis ed Cannon that6 No. 12-1529
the fi rst mu rder convic tion w ould be consi dered relev ant and admi ssi ble. There w as no physi cal evidenc e to cor ro borat e Cannon's clai ms and the offi cers had repeat edly deni ed the allegations, inclu ding under pena l t y of perj ury

. Lanphi er
a ssessed Cannon's chanc es of prev ai ling as sli m and advis ed Cannon to settle for t he $3000 nui sanc e v alue offered by the defendants. R. 391-7, at 2-4, 6. Cannon a cc epted hi s lawy er's advic e and settled the sui t in Februar y 1988, si gning a broadly

w or ded release of hi s clai ms again st the named defendants as
w ell as the Ci ty o f Chi cago, whi ch w as jo ined for the purpose of settling the cas e: In consi derat i on of the hereinaft e r-indi cated settlem e nt and Judgment enter ed there on, Plainti ff a gr e e s to indemni fy and hold harmless the Ci ty of Chi cago, i ts offi cers, agents and employ ees inclu ding, but not li mi ted to, the remaining Defend a nt, from any clai ms, losses, damages or exp e ns es incu rr ed, or whi ch may be incu rr e d, by reason of the inci dent whi ch w as the basi s of the li tigati on.

... Plainti ff understands, upon advic e of hi s couns el, and agr ees that such Judgment i s a final a nd t otal settlem e nt o f all clai ms he has, or may hav e in the future, aris ing ei ther di rectly or indi rectly out of the inc ide nt whi ch w as the basi s of thi s li tigati on, and that su ch finali ty i s appli cable to the remaining Defendan t, the CITY OF CHICAGO , i ts offi cers, agents and employ ees.No. 12-1529 7

R. 28-2, at 38-39 (hereafter , the “1988 St i pulati on”). After costs and fees, Cannon netted $1247.70. The case again st the offi cers
w as di smi ssed wi th prej udi ce, and final judgment w as enter ed in fav or of Cannon and ag ainst t he Ci ty of Chi cago. Th e 1988 St i pulati on w as incorpor ated by refer ence into the judgment
or der . R. 28-2, at 37-40; 50-51. In the meanti me, Cannon appealed hi s convic tion. The Illinoi s appellate court affi rmed the de ni al of hi s motion to supp ress hi s confess i on but remanded the case to the tr i al court for a hearin g on the p r o se cuti on's use of perempto ry challenges to exclude Afric an Americ an juro rs. After holding that hearin g, the tr i al court or dered a new tr i al. People v

. Cannon , 688 N.E.2d 693, 693-94 (Ill. App. 1st Di st. 1997) (“ Cannon I ”). At the sub sequent ret rial in 1994, the court declined to rev i si t the iss ue of the v oluntarines s of Cannon's confess i on and once
a g a in allo wed the confess i on to be used as ev i dence. C a nn o n
w as again found gui lty of the mur d er of Darrin Ross, and againsentenced to li fe in pri son. Cannon a p p e a l e d a gain and, thi s tim e, the court v acated the convic tion and the sentence, and remanded for a new hearin g
on the v oluntarines s of Cannon's confess i on

. Cannon I , 688 N.E.2d at 694. The court noted that Cannon had presented the tr i al co ur t wi th new evidenc e in supp or t of hi s motion to reconsi der the ruling from the fi rst tr i al. In particu lar , Cannon wi shed to present (1) a polic e log indi cating that his arr esting offi cers had chec ked out a shotgun on the day o f hi s arr est, contrar y to their testim ony at hi s fi rst supp ressi on hearin g that they w ere not in possess i on of a shotgun; (2) d e p o sit i on testim ony from Byrne and Di gnan in a related civi l acti on; ( 3) photo s take n by OPS of the si te where Cannon sai d he w as8 No. 12-1529

tor tured; (4) testim ony of si xte en arr estees who fi led charges wi th OPS that they had been tor tured by so me of the same offi cers at Area 2; and (5) evidenc e th a t ca t t l e prods small enough to fi t in a car’s glove compartment exis ted in 1983. C a nno n also supp or ted hi s motion wi th an offer of pr o o f statin g that the defense, i f allow ed, w ould hav e presented the testim ony of elev en other men who had be e n mi streat ed by

some of the same offi cers who tor tured Cannon. Cannon I , 688 N.E.2d at 694-96. The court conclu ded that or dinary prin ci ples of collatera l estoppel should not bar re-li tigat i on of Cannon’s motion to supp ress becau se thi s w as no or dinary ca se

. First, the judge who or i gin ally rule d on Cannon’s motion to supp ress in hi s fi rst tr i al w as Thomas Maloney , hi mself an i gnomini ous fi gure in Chi cago poli tic s who w as later convic ted of accepting bribes to fi x murder cases during the same time per i od as C a nn o n’s
or i gin al tr i al. See Bracy v

. Gramley, 520 U.S. 899 (1997). Second, Cannon w as now prepar ed to present evidenc e th a t the offi cers who pr ocured hi s co nfess i on reg ularly used to rt ure to coerce confess i ons. And thi rd, Cannon had new evidenc e of coerci on that w as not av ai lable at hi s 1984 tr i al. The court fo un d t hat
new evidenc e and “speci al ci rcums tances” w ere w e l l -r ecogni zed exceptions to the gener al rule barring re-li tigati on of a deci ded motion, and that both e x cept i ons were relev ant in Cannon’s case. The court surv ey ed the evid e nc e that w ar
ranted applic ation of the exceptions : Repor ts prepar ed by the Offi ce of Professional St andards of the Chi cag o P olic e Department, sur
v eying the alleged systemati c abu se of sus pects atNo. 12-1529 9
Area 2 headquarter s, w ere not av ai lable to Cannon's lawy er in 1984. Nothing in the recor d demonstrate s that Cannon' s lawy er knew or should hav e known of the clai ms of brutali ty made by other sus pects questi oned at Area 2. In addi tion, newly di scov ered or not, the evidenc e of 28 o t he r A r ea 2 arr estees, 16 of them questi oned by some of the offi cers who questi oned Cannon, amount to “speci al ci rcums tances” that justif y a new hearin g of the motion to suppress. Cannon I , 688 N.E.2d a t 6 9 7 (internal ci tation omi tte d). In December 1997, the appellate court there fore remanded the
case for a new supp ressi on hearin g that inclu ded t he ne w evidenc e Cannon wi shed to present. In January 20 0 1 , after the tr i al court held a hearin g on Cannon’s renew ed motion to supp ress but before the co ur t ruled on that mot io n, Cannon agr eed to plead gui lty to the lesser ch a r g es of armed violence and conspi racy to commi t murder , in exchange for a tot al sentence of fort y y ears’ i mpri sonment. Cannon sti pulated that the wi tnesses who w ere called to testif

y in the second tr i al w ould testif y consi stently at any future t r i al, and that assi stant state’s atto rney Henry Sim mons, who too k handw ritten notes of Cannon’s confess i on in 1983, w ould testif

y in conformance wi th hi s prior testim ony

. Wi thout admi tting gui lt, Ca nn on agr eed that the evidenc e prese nted at the prior tr i al and the statement recor ded by Sim mons w ould be suffi ci ent to consti tute proo f of gui lt of the charges of armed violence and conspi racy to c ommi t m urder

. See North Carolina v

. Alford, 400 U.S. 25, 37 (1970) (“An indi vid-10 No. 12-1529

ua l accu sed o f crime may v oluntarily , knowingly

, and un d e rstandingly consent to the i mposi tion of a pris on sentence ev en i f he i s unw i lling or unabl e to admi t hi s partici pation in the acts consti tuting the cri me. Nor can w e percei v e any material di fference betw een a plea that refuses to admi t commi ssi on of the cri minal act and a plea containing a prot estation of innocenc e when

... a defendant intelli gen t l y co nclu des that hi s intere sts require entry of a gui lty plea and the recor d before the jud g e contains stro ng evidenc e of actual gui lt.”). Wi th full credi t for the tim e Cannon had already serv ed, the parties agr eed that he w ould be eli gib le for r elease in August 2003. At some poin t, i t b ecame apparent to Cannon that, i rr espectiv e of hi s plea agr e e me nt with t he St ate, the Illinoi s Prisoner Review Board (hereafter “IPRB” or the “Boar d ” ) had conclud ed that Cannon w as not eli gib le for release unti l July 2064,
some si xty -one y ears bey ond the date agr eed to in hi s plea. As

w e noted abov e, at the tim e he w as arr ested for Ross’s murder , Cannon w as on parole for the 1971 murder of Emanu el Lazar , a nd had serv ed only tw elv e y ears of hi s 100 to 200 y e a r sentence for that cri me. Fo llowing hi s convic tion for Ross’s murder , in August 1984 Cannon w as ret ro acti v ely declared in violati on of hi s parole in t he L a z ar case, and hi s parole w as
rev oke d as of hi s Nov ember 2, 1983 arr est da t e

. In Februar y 2003, the IPRB held a hearin g at whi ch the Board w as advis ed of the ter ms of C a nn o n’ s plea agr eement wi th the St ate. The St ate di d not oppose Cannon’s parole at that hearin g. The IPRB nonetheless refused to release Cannon on parole, and gav e no
assu rances that he w o ul d be released prior to July 2064. The IPRB continued C a nn on’s case for another parole hearin g in 2006.No. 12-1529 11
Unsati sfi ed wi th that result, in October 2003 , Cannon
mov ed in post-convic tion proceedings to v a ca t e hi s plea, contending that he had receiv ed ineffec tiv e assi stance of
couns el becau se hi s lawy ers h ad not inv esti gate d the effect of the plea on the 1 9 8 4 r etr oactiv e rev ocation of hi s parole. He also contended that the St ate had fai led to adhere to i ts si de of the plea bargain, and that the plea could not be consi dered knowing, v oluntary and intelli gent under the ci rc umstances. In an April 2004 fil ing , the St ate agr eed that Cannon had receiv ed ineffec tiv e assi stanc e wh en hi s lawy ers fai led to inv esti gate the effect of the plea on hi s parole, and agr eed that the plea should be v acated. The St ate conceded that i t too
assu med t hat Cannon w ould be r eleased in A ug us t 2003, but
now agr eed that any g uil t y plea in the 1983 case w ould supp or t rev ocation of parole in the 1971 case. In or der to honor the understanding of the p a r t ie s at the tim e of the plea, the St ate there fore agr ee d t o di smi ss the sub stanti v e case agains t Cannon. The St ate emphas i zed that it di smi ssed the Ross
mur d e r charges solely to rectify the procedural problem created when nei ther si de anti ci pated the effect of the plea agr eement on Cannon’s parole status for the 1971 convic tion. The St ate continued to assert that Cannon w as factually gui lty of the charges to whi ch he pl ed in 2001. In June 2004, Cannon receiv ed a full parole revo cat i on hearin g before the IPRB. The Boa r d again conclu ded that Cannon violated hi s parole in the 1971 case by commi tting the cri me of murder in 1983. The Board stated that i t analyzed the evidenc e wi t hout giving any consi derat i on to Cannon’s coerced s tate ment to the Area 2 offi cers except for port i ons of the statement that Cannon admi tte d in mo tions and at tr i al.12 No. 12-1529
The Bo ard fi rst consi dered Cannon’s accountabi li ty using the 1983 gr and jury testim ony of T yr one McChris tian

, the brot her of Andr ew McChris tian , as w ell as Cannon’s own sw or n testim ony

. In gr and jury proceedings, T yr one testifi ed that 4 Cannon and McChris tian w ere both “gener als” in the El Rukn street gang, that Ross had stolen drug money , that Cannon w as intent on carry ing out McChris tian ’ s p lan to seek rev enge on Ross, and that Cannon ret riev ed a gun for McChris tian a nd the n drove the car so that McChris tian could shoot Ross. The Board found that Cannon’s prox i mi ty to the murder and hi s sub sequent acti ons in ai ding McChris tian to di spose of Ross’s body led to only one conclu si on: that Cannon w as accoun table for t he mur der of Ross, that Cannon v oluntarily attached hi mself to McChris tian ’s p l a n and that Cannon shared McChris tian’s intent. The Board then consi dered Cannon’s accoun tabi li ty based solely on hi s own testim ony , a g ain excluding hi s coerced statement except to the ext ent i t w as admi tte d by Cannon’s other testim ony

. According to Cannon’s own accoun t of Ross’s murder , on October 26, 1983, Cannon met T yr one at a pool hall. T yr one told Cannon that McChris tian w anted to meet hi m at hi s girlfri end’s house. T yr one drove Cannon to the house of McChris t ia n’s girlfri end, where McChris tian and Ross w ere
w ai tin g. McChris tian told C a nn o n that he w as meetin g some people and w anted Cannon to “w atch his back.” Cannon, McChris tian and Ross then all too k a ride in McChris tian ’s car

. Wi th Cannon driving, McChris t ia n and Ross arg ued about

We wil l refe r to Tyro ne McChri stian as “Tyro ne” and to Andre w 4 McChri stian as “McC hristi an.”No. 12-1529 13 drugs and a ro bbery

. McChris tian then brandi shed a rev olv er and shot Ross twi ce in the head. A second ro und of gunfi re ensued. Ei ther Cannon or McChris tian ret riev ed a tow el from the tr unk to contain the blood from the vic tim ’s head. Cannon and McChris tian then drove to a prairi e behind the Altg eld Gardens housing complex and dumped R o ss ’s body in the prairi e. Based on thi s accoun t, t he I PRB rej ected Cannon’s clai ms that he di d not see the gun, that he di d not know that McChris tian

, hi s fri end of nineteen y ears, h ad a gun, and that he di d not k now that McChristi an w as about to killRoss. The Board found Cannon’s acti ons fo l l o win g the murder to be indi cati v e of consc i ousness of gui lt. In particu lar , Cannon tr i ed to keep Ross’s blood from staining the car , helped d isp o se of the body , left the scen e, fai led to notify the poli ce, and fai led to di ssoci ate hi mself from McChris tian during or after the cri me. The Board, ther efore, ag ain rev oke d Cannon’s parole.
Cannon then br ought sui t in state chanc ery court again st the IPRB, asking for i mmedi ate r elease or for a rev ersal of the Board’ s rev ocation deci si on an d a n e w h e a rin g before the IPRB. The chanc ery court noted that, alt hough Cannon had enter ed
a gui lty plea in 2 0 0 1 , he had not admi tte d gui lt, sti pulating only that the factual basi s presented by the St ate w as suffi ci ent to supp o r t a convic tion. The chanc ery court or dered a new hearin g for Cannon before the IPRB, and di rected the Board to reconsi der i ts rev ocation of Cannon’s p a r o le wi thout any relianc e o n Cannon’s confess i on or on T yr one’s gr and jury testim o ny

, whi ch T

yr one later asserted w as also a product of poli ce coerci on. On reconsi derat i on, the IPRB released Cannon
on parole. By that p o int, Cannon had been in pris on for tw enty-thr ee y ears following hi s arrest for Ross’s mu rder

.14 No. 12-1529
In the meanti me, in 2005, after the St ate agr eed to di smi ss the s ubs tantiv e case against hi m, Cannon fi led thi s sui t u nder 42 U.S.C. § 1983, seeking da ma g e s fr om the Ci ty of Chi cago, the offi cers invo l v ed in his tor ture, and o ther Ci ty employ ees inv olv ed in cov ering up the tor ture. Cannon’s clai ms against 5 the Ci ty of Chi cag o a nd Ci ty employ ees (hereafter “the Ci ty Defendan ts”) inclu ded (1) depriv ation of the right to a fai r tr i al; (2) false arr est and false i mpri sonment; (3) tor ture and physi cal abus e; (4) coerci v e interr ogat i on; and (5) a Monell poli cy clai m. See Monell v

. Dept of Soci al S e r vs. of City of New Y ork , 436 U.S. 658 (1978). Cannon also asserted state law clai ms again st these
same defendants, inclu ding (1) false arr est and i mpri sonment; (2) mali ci ous prosecuti on; (3) intentio n a l in fl i c ti on of emotional di stress; (4) conspi racy; (5) respondeat superi or; and (6) indemni

fi cati on. The di stric t court conclu ded that the plain language of the 1988 St i pulati on that Canno n si gned settlin g hi s or i gin al clai ms again st the Ci ty and the or i gin al defendants precluded Cannon from brin gin g n e w c l a i ms again st the Ci ty Defendants. The court then consi dered whether the 1988 St i pulati on could be inv ali dated be ca use of the Ci ty Defendan ts’ fraudulent concealm ent or under the do ct r ine of unc onsci onabi li ty. The

c ou rt u l tim a tely held that nei ther doctrine could save C an n on’s present laws ui t in li ght of the broad r e l e a se he si gned in settling the 1986 case. Cannon v

. Bur ge, 2006 WL 273544 (N.D. Ill. Feb. 2, 2006) (“ Cannon II”); Cannon v

. Bur ge, 2007 WL 2278265 (N.D. Ill. Aug. 8, 2007) (“ Cannon III ”); Cannon v

. Bur

ge,

C annon also sued Co ok Co unty, the Co ok Co unty State’s Att o r ne y 5 Richard Dev i ne, and the Co ok Co unty S tate’s A ttorney’s of fi ce , bu t t hose partie s are not a part of this appeal

.No. 12-1529 15

2011 WL 4361529 (N. D. Ill. Sept

. 19, 2011) (“ C an n on IV ”). Cannon appeals. II. On appeal, Cannon co ntends that the defendants should not benefi t from a settlement agr eement that w a s secu red by fraud. He arg ues that the 1988 St i pulati on could not bar clai ms that di d not y et exis t and w ere not contemplated by the parties at the tim e of the settlement. Canno n also asserts that the defendants’ conduct placed hi m in such a gr ossly unequal bargainin g p o si tion that i t w ould be unc onsci onable to hold hi m to t he ter ms of the 1988 St i pulati on. Finall y , he maintains that the di stric t co ur t e r r e d when i t refused to allow hi m to amend hi s complaint to add a ci vil RICO clai m. W e rev i ew the 6 di stric t court’s gr ant of sum mary judgment de novo , examining the record in the li ght most fav or able to Cannon and construing all reasonable inferences from the evidenc e in hi s fav or

. Anderson v

. Liberty Lobby , Inc. , 477 U.S. 242, 255 (1986); Naficy v

. Illinois Dep’t of H uman Servs. , 697 F .3d 504, 509 (7th Ci r

. 2012); Norman-Nunn ery v

. Madiso n Area T echni cal Coll. , 62 5 F .3d 422,

The di stric t cour t deni ed Cann on’s moti on to amen d his compl aint to add 6

a c i v i l RICO cl aim, ci ting o ur de ci sio n in Eva ns v. City of Chicag o , 43 4 F.3d 91 6 (7 th Ci r. 20 06 ), overruled on oth er grounds by Hill v. Tangh erlin i, 72 4 F.3d 96 5 (7 th Ci r. 20 13 ). Cann on sought dama ges fo r l ost empl oyment opp or tuniti es duri ng the time he was i mpri soned. In Eva ns , we held tha t “f or egone earnings stemming fro m the l ost oppo rtunity to seek or g ain emplo yment are, a s a ma tter o f l aw, insuffi ci ent to sati sfy § 19 64 (c) 's i njury to ‘b usiness
or pro perty’ requir ement where they consti tute no t hi ng more than pecuni ary l osses fl owi ng fro m wha t i s, at b ase, a perso nal i njury.” 43 4 F.3d at 93 0- 31

. Cann on conce des tha t Eva ns contro l s bu t ask s us to revisi t the questio n. We d ecl i ne to do so.16 No. 12-1529

428 (7th Ci r

. 2010). Summary judgment i s appropr i ate when there are no genuine di sputes of material fact and the mov ant i s entitled to judgment as a matter of law

. Fed. R. Ci v

. P

. 56(a); Naficy, 697 F .3d at 509. A.
W e begin with t he 1988 St i pulati on i tsel f. C a nnon and the Ci ty Defendan ts agr ee that the 1988 St i pulati on settlin g the

or i gin al sui t i s a contract governed by Illino is l a w

. Cushi ng v

. Greyhound Lin es, Inc. , 991 N.E.2d 28, 92 (Ill. App. 1st Di st. 2013) (a settlement agr eement i s consi dered a contract, and construction and enforcement of settlement agr e e ment s ar e governed by prin ci ples of contract l a w)

. S ee also Haisma v

. Edgar , 578 N.E.2d 163, 168 (Ill. App. 1st Di st. 1991) (sam e ). A release wi thin a settlement agr eement also is governed by contract law

. Farm Credit Bank of St. Louis v

. Wh i tl oc k , 581 N.E.2d 664, 667 (Ill. 1991); Rako wski v

. Luc ente, 472 N.E.2d 7 9 1 , 794 (Ill. 1984). The parties di sagree about the scope of the release in the 1988 St i pulati on, and whether w e may consi der ext rins i c evidenc e in de t e r min ing the scope. “Where a wri tte n agr eement i s clear and explic i t, a court mu st enforce the agr eement
a s wri tte n. Both the meaning of the instrument, and th e int e nt io n o f t he parties must be gather ed from the face of t he document w i th ou t the a s s i stance of parol evidenc e or any other ext rins i c ai ds.” Rako wski , 4 72 N.E.2d at 794. See also Whitlock , 581 N.E.2d at 667 (“[t]he inte nt i on of the parties to contract
mus t be deter mined from the instrument i tself, and c onstruction of the instrument where no ambi gui ty exis ts i s a matter of law”); Hurd v

. W

ildman, Harrold, Allen & Dixon , 707 N.E.2d 609, 613 (Ill. App. 1st Di st. 1999) (wh ere a wri tte n agr eement i s clearNo. 12-1529 17

a nd explic i t, a court mus t enforce the agr eement as writ t e n wi thout the assi stance of parol evidenc e or any ext rins i c ai ds); Haisma , 578 N.E.2d at 163 (where there i s no ambi gui ty in the language of a settlement agr eement, the deter minati on of the int ent of the parties i s governed by the contract languag e alone). In contrast, when a contract i s ambi guous, constructi on of the agr eement i s a questi on of fact, and the fin d e r o f fact may consi der parol evidenc e in deter mining the inte nt o f the parties. Whitlock

, 581 N.E.2d at 667. In or der to deter mine the scope of the release , w e must there fore consi der whether the c ontr act i s “clear and explic i t”
or whether i t i s ambi guous. In Illinoi s, a contract i s consi dered ambi gu o us if i t i s capabl e of being understood in more than

one sens e. Whitlock

, 581 N.E.2d at 667; Farmers Auto. Ins. Ass’n

v

. Kraemer, 857 N.E.2d 691, 693 (Ill. App. 5 t h Di st. 2006). Cannon, who w as repr e se nt ed by couns el in the 1988 settleme nt, si gned a St i pulati on that purpor ted to be “a fina l a nd tot al settlement of all clai ms he has, or may hav e in the future, aris ing ei ther di r ectly or indi rectly out of the inci dent whi ch

w as the basi s of thi s li tigati on, and that such finali ty i s appli

cable to the remaining Defendan t, the CITY OF CHICAGO, i ts offi cers, agents and employ ees.” Cannon does not assert th a t a ny particu lar part of the St i pulati on i s “capable o f being understo od in mo re than one
sens e.” Whitlock

, 581 N.E.2d at 667. I ns t e ad, he points to a numb er of deci si ons in the appellate courts in Illinoi s that appear to allow the cons ide r ation of parol evidenc e in deter

min ing the intention of the parties, ev en when there i s no ambi gui ty on the face of the contract. For example, in Carlile v

.18 No. 12-1529 Snap-on T

ools , 648 N.E.2d 317 (I l l

. A p p. 4th Di st. 1995), the court commented: It i s sometimes sai d that a release i s a contract, and t he same rules whi ch apply to other contracts (particularly the parol evidenc e r ule) apply to

r e leases. It appears, how ev er , that the courts a r e
much more careful in applying the parol evidenc e rule to releases than they are to other contracts. The intention of the parties contro ls the scope and effect of a release, and thi s int ent “i s di scerned from the language used and the cir cum stances of the transaction .”
648 N.E.2d at 321 (quoting Carona v

. Illinois Cent. Gulf R.R. Co. , 561 N.E.2d 239, 242 (Ill. App. 5th Di st. 1990) (e mp hasi s suppli ed in Carli l e ))

. S e e also Carona, 561 N.E.2d at 242 (“It i s w ell establi shed that the intention of the parties c ontr ols the scope and effect of the release, and that thi s intent i s di scerned from the language used and the ci rcums tances of the tr ansac tion.”); Chubb v

. Amax Coal Co. , 466 N.E.2d 369, 372 (Ill. App. 5th D i st. 1984) (the intention of the parties contro ls the scope and effect of a release, and thi s intent i s di scerned from the language used and the ci rcums tances of the tr ansac tion); Whitehead v

. Fleet T owing Co. , 442 N.E.2d 1362, 1365 (Ill. App. 5th Di st. 1982) (the intention of the parties contro ls the scope and effect o f the release and such intent is di scerned from the language used and the ci rcums tances of the transacti on). So there a r e t w o seemingly inconsi stent lines of cases in Illinoi s reg ardin g whether a court may consi der p a ro l e videnc e in interpr eting a n unamb i guous settlement agr eement. TheNo. 12-1529 19

inconsi stency can be resolv ed, though, by following the “ci rcums tances of the tr ansac tion” language back to i ts source. T o do so, w e mus t tr av el nearly 150 y ears, to a deci si on of the Illinoi s Supreme Court interpre ti n g a re l e a s e th a t w as procured by fraud. See Parmelee v

. Lawrence, 44 I l l. 405 (1867); 1867 WL 1574 (Ill. 1867). Parmele e a d dressed (and rej ected) a stric t
common law rule that “the full release of one of se ver a l j oin t tor tfeasors released all, ev en i f the release contained an expr ess
reserv ation o f r ights again st the other s.” Porter v

. Ford Motor Co. , 449 N.E.2d 827, 829 (I l l

. 1 983) (interpr eting Parmelee ). In Parmelee, Lawrence si gned a releas e after he w as fi rst presented wi th tw o other draft releases. Wi th each o f the earlier drafts, Lawrence feared that the release of one o bli gor w ould i mpai r hi s clai ms again st co-o bl ig o r s. He there fore refused to si gn those drafts. He w as then presented wi th a draft that expr essly purpor ted to reserve hi s clai ms again st co-obli gor s, and he w as led t o be l ie v e i t w ould hav e that effect. There w as evidenc e that t he drafter of the document li kely k new that the re serv ation w ould be tr umped by the common la w r ul e

. In that instance, where the doc um e nt on i ts face unamb i guously reserved Lawrence’s clai ms again st the co-obli gor s, the Illinoi s Sup r e me Court refused to apply the stric t common law rule that r eleasing one o bli gor w ould operat e to release all:
But a release, li ke ev ery other wri tte n instrument,
mus t be so construed as to carry out the intention of the parties. Thi s intention i s to be sought in the language of the instr um ent i tself when read in the li ght of the ci rcums t a nc e s whi ch surrounded the tr ansac tion.20 No. 12-1529
Parmelee, 44 Ill. 405; 1867 WL 1574 at *3. The court consi dered the ci rcums tances surrounding the si gning of the release and prono unc ed i t “a di shonest sch eme.” Parmelee, 44 Ill. 405; 1867 WL 1574, at *4. The court rej ected older cases adherin g to the st ric t common law rule and found that “the w ei ght of th e modern authoriti es i s again st these case s, and in fav or of the
more r easonable rule, that where the release of one of sev eral obli gor s sh o ws upon i ts face, and in connecti on wi th the surrounding circum stances, that i t w as the intention of the parties not to release the co-obli gor s, such in tention, as in the

case of other wri tte n contracts, shall be carried out[.]” Parmelee, 44 Ill. 405, 1867 WL 5174, at *5. The Illinoi s Supreme Court had an oppor tuni ty to interpr et Parmelee more than one hundred y ears later

. In Porter , a ban k repr esenting the estate o f the plainti ff’s husband settled a negli gence acti on aga inst a driv er who caus ed a crash that resulted in hi s death. The bank, as admini strat or of the es tate , si gned a settlement broadly r e l e a sing the driver , hi s insu rer

, and any person or company l ia bl e “in hi s stead” from all claims a ris ing from the husband’s death. The plainti ff then sought to sue For d Mot or Compan y , the manuf acturer of the For d Pinto th a t he r husband w as driving at the tim e of hi s death. Relying prim arily on Parmelee, the plaint iff contended that t he
court shou l d have focus ed on the intent of the parties in executin g the release rat her than l o o kin g at the language of the document standing alone. The intent of the parties

... w as t o r e lease only [the driv er] and hi s insu rer fr o m l i abi li ty

. The prim e indi cator of thi s intention

... i s th a t at the tim e theNo. 12-1529 21
document w as executed, the only defendant in t he laws ui t w as [the driv er] and a clai m again st For d had not ev en been contemplated by the plainti ff.
Porter , 449 N.E.2d at 829. The Illinoi s Supreme Court di sagreed wi th thisbroad r eading of Parmeleeand noted that : The Parmelee holding does not requir e

... t hat a release be construed as a release of only those persons expr essly named. Rather , i t holds that an
unc ondi tional release of one co-obli gor releases all unles s a contrar y intent appears from the face of the instrument. Porter , 449 N.E.2d at 830. Becaus e t he release contained no expr ess re serv ation o f r i ghts again st other parties but instead

w as a “full or un qua l i fi ed release as to one indi vis ible injury giv en to any of those co nc ur ring in i ts caus e,” the release
se rv ed as a bar to the plainti ff’s clai ms again st For d Mot or

. Porter , 449 N.E.2d at 830-31. Thi s w as so ev en though at the tim e t he r e l e ase w as si gned, the plainti ff had not y et contemplated a clai m against For d. Porter , 449 N.E.2d at 829. What does all of thi s mean for Cannon? Parmelee cannot reasonably be read to uni formly allo w the consi derat i on of parol evidenc e in interpr eting an unambi guous release. In reality , Parmelee chroni cled an instance of fraud in the induc eme nt

. See Jorda n v

. Knafel , 880 N.E.2d 1061, 1069 (Ill. App. 1st Di st. 2007) (fraud in t he induc ement of a contract is a d efense that render s the contract v oidab le at the electi on of the injured22 No. 12-1529
party ). In fa ct , the Parmelee court held the parties to the

7 unamb i guous language of the release ev en th o ug h the common law rule held to t he contrar y

. T o hold other wi se w ould hav e allow ed the drafter of the d o cument to fraudulently induc e Lawrence to si gn a release that had the opposi te effect of i ts plain, unambig uo us language. The Illinoi s courts of appeal appear to hav e take n the “ci rc um st a nces of the tr ansacti on” language from Parmelee out of context and appl ie d i t broadly to allow the consi derat i on of paro l evidenc e in construing the intent of the parties to an unamb i guous release. But t he Illinoi s Supreme Court has embraced no such rule, instead consi stently holding that, wh e n a c ontr a c t i s un a mb i guous o n its face, the intent of the parties mus t be construed wi thout cons i derat i on of parol evidenc e. Whitlock , 581 N.E.2d

a t 6 6 7 ; Rako wski, 472 N.E.2d at 794. Our ro le in interpr eting a questi on of state law i s to predic t how the hi ghest court of the state w ould answer the questi on. In re Crane, 742 F .3d 702, 707- 08 (7th Ci r

. 2013) (for a que st i on of state law , our ro le i s to predic t how t he Illinoi s Supreme Court w ould deci de the questi on); Pippen v

. NBCUn iversal Media, LLC, 734 F .3d 610, 615 (7th Ci r

. 2013) (in di v ersi ty acti on, we mus t predic t how the state's hi ghest court w ould answer the questi on if a sked). In thi s instance, w e hav e no need to predic t ho w t he Illinoi s Supreme Court w ould rule: the court has already spoken. W e

As was the case i n Parmelee, “the party seeki ng such rel i ef must estab l i sh 7 tha t the repre sentati on was : (1 ) o ne o f mat eri al fact; (2 ) made fo r the purpo se of i nduci ng the other party to act; (3 ) known t o be f alse b y the mak er, or not actua l l y bel i eved b y him on reasonab l e grounds to b e true, b ut reasonab l y b el i eved to b e true b y the ot he r party; and (4 ) was rel i ed upon by the other party to hi s detri ment.” Jorda n , 8 80 N.E. 2d at 106 9.No. 12-1529 23

may not consi der parol evidenc e in construing the unamb i guous ter ms of the release here. Whether Cannon w as fraudulently induce d to si gn the 1988 St i pulati on i s a separate questi on that w e wi ll consi d e r be low , but w e mus t fi rst deter min e the ter ms of the unamb i guous 1988 St i pulati on from i ts plain language. The broad release that Cannon si gned in 1988 inclu ded all of the clai ms “aris ing ei ther di rectly or indi re ctly out of the inci dent whi ch w as the basi s of thi s li tigati on[.]” R. 28-2, at 39. The inc i dent that serv ed as the basi s for Cannon’s 1983 pro se complaint also supp li ed the basi s for Cannon’s current clai ms. All of the clai ms aris e from Cannon’s tor ture by Byrne, Di gnan and Grunhard on No vem be r 2, 1983. That tor ture led to Cannon’s purpor tedly fals e confess i on, whi ch twi ce led to hi s convic tion for Ross’ s murder

. Cannon also agr eed to a “final and tot al settleme nt of all clai ms he has, or may have in the future,” aris ing from the inci dent underlyin g the 1983 sui t. That language unamb i guously inclu des clai ms that Cannon asserts he di d not contempla t e unt i l after the settlement, inclu ding clai ms that he alleges di d not accrue unti l after the settlement. See Rako wski, 472 N.E.2d at 794-95 (gi ving effect to a settlement that released any and all clai ms “ on account of all injuries, known and unknown,

... whi ch hav e resulted or may in the future dev e l o p from an acci dent whi ch occurred”); Hurd, 707 N.E.2d at 613 (finding clear a nd unamb i guous a release that bars clai ms “ wh e t he r known or unknown, or sus pected to
e xi s t” aris ing from the plainti ff’s partner shi p in the de fe n d ant’ s fi rm). Although I llinoi s courts construe more narro wly gener al releases that are unlimi ted in scope, the release here i s li mi ted24 No. 12-1529

to future clai ms that aris e from the subject of the fi rst law sui t. See Rako wski, 472 N.E.2d at 794. In Rako wski, the Illinoi s Supreme Court held that a party w as bound by a release “from any and all clai ms

... of any kin d or nat ur e wh atsoev er , and particu larly on accoun t of all injuries, known and unknown

... whi ch hav e resulted o r ma y in the future dev elop from” a particu lar acci dent. 472 N.E.2d at 79 4

. Th e court rej ected a p a r ty’ s posi tion that he di d not intend to release a claim fo r contribu tion that di d not y et exis t at the tim e of the settlement and w as not speci fi cally enumerated in the release. Instead, the court declined to consi der parol evidenc e of that party ’s intent and appli ed the unamb i guous language of the release. Any uni later al mi stake about the effect of an unamb i guous release

w as not a suffi ci ent gr ound to set asi de the relea se

. R ak owski, 472 N.E.2d at 794. Cannon atte mpts to carv e out hi s clai ms for wrongful convic tion and mali c i ou s p ro s e cu ti on a s s e p a ra te and di stinct inci dents not cov ered by the settl e ment. But thi s i gnor es bot h t he “aris ing from” language in t he 1988 S t i pulation and the reality that these clai ms di d in fact exis t at the tim e he executed the 1988 St i pulati on. That i s, he had already been wrongfully convic ted as a r e sult of what he asserts to be a mali ci ous prosecuti on. That he could not br ing these clai ms unti l hi s convic tion w as set asi de i s i rr elev ant to t he clear langu a ge of the 1 9 8 8 Sti pulati on, whi ch releases the defendants from all clai ms “aris ing from” the ini tial inci dent. W e there fore agr ee wi th the di stric t court that the release cov ers a l l o f the clai ms in Cannon’s currentsui t agains t the City Defendants.
B. Our conclu si on that the release cov ers all of the cl a i ms in Cannon’s current complaint i s not the end of the matter

. OnceNo. 12-1529 25

a defendant establi shes the e x ist ence of a release that i s legal and binding on i ts face, the burden shi fts to the plainti ff to prove i t inv ali d by clear and convin cing e videnc e. Hurd, 707 N.E.2d at 613. Cannon asserts t hat the Ci ty Defendan ts engaged in fr aud a nd a cov er -up of the tr ue facts that caus ed hi m to settle on unfav o rable ter ms. He relies large ly on our opini on in Bell v

. City of Milwaukee, 746 F

. 2 d 1 2 0 5 (7th Ci r

. 1984), overr u l e d on other grounds by Russ v

. W atts , 414 F .3d 783 (7th Ci r

. 20 0 5 ), for the propo si tion that a settlement does not bar addi tional li tigatio n when i t i s procured by fraud and a
cov er -up so mass i v e that the plainti ff w as depriv ed of meaning fu l acces s to the courts. Cannon asserts that the recor d contains evidenc e of fraud that i s adequate to create a genuine i ssu e o f material fact reg ardin g whether he should be held t o the ter ms of the 1988 St i pulati on

. The Ci ty Defendan ts arg ue that Cannon has fai led to make out a clai m for fraudulent induc ement or fraudulent concealm ent in the execution of the 1988 St i pulati on, and that Bell i s dis tin gui shab le. W e wi ll first address whether Cannon rais es a genuine i ssu e of material fact reg ardin g fraud in the induc ement, and then w e wi ll turn to Bell

. 1.
Fr aud in the induc ement of a co nt r act i s a defense that render s the contract v oid a bl e at the electi on of the injured party

. Jorda n , 880 N.E.2d at 1 0 6 9

. The elements of a clai m for fraudulent induc ement are w ell-settled in Illinoi s: Broadly speaking, for a mi srepresentat i on to consti

tute fraud whi ch inv ali dates a contract, i t mus t be a repr esentation in the form of a statement of a mate-26 No. 12-1529
rial fact, made for the purpose of induc ing a party to act; i t mus t be false and known by the party making i t to be false, or not actually be l iev ed by hi m, on reasonable gr o unds, to be tr ue; and the party to whom i t i s made mus t be i gnor ant of i ts falsi ty , mus t reasonably b eli ev e i t to b e tr ue, mus t act ther eon to hi s damage, and in so acting must rely o n the tr uth of the state ment.
W ilkinson v

. Appleton , 190 N.E.2d 727, 729-30 (Ill. 1963). See also Jorda n , 880 N.E.2d at 1069. The problem for Cannon i s i mmedi

ately apparent. When he si gned the 1988 St i pulati on, he knew that Byrne, Di gnan and Grunhard w ere lyin g. He w as, after all,
a wi tness to hi s own tor ture and he knew what had really happened. When he agr eed to settle the case, he could not hav e reasonably beli ev ed their statements to be tr ue, and could not hav e reasonably r e l ie d on the tr uth of their statements in si gning the 1988 St i pulati on. See Siegel Dev., LLC v

. Peak Const. LLC , 993 N.E.2d 1041, 1060 (Ill. App. 1st Di st. 2013) (as part of i ts fraud clai m, a plainti ff mus t show that i ts relianc e on the mi srepres entation w as justifi ed; in other w or ds, the relianc e
mus t be reasonable); D. S

. A. F i n

. Corp. v

. County of Cook , 801 N.E.2d 1075, 1081 (Ill. App. 1st Di st. 2003) (a person may not enter into a tr ansac tion wi th hi s e yes clo sed to av ai lable information and then charge that he has been decei v ed by another ). In deter mining whether Cannon reasonably relied on t he defend a nt s’ li es, w e mus t take into account all of the facts whi ch Cannon knew

, as w ell as those f acts that Cannon could hav e learned thro ugh the exer ci se of or dinary prudence. SiegelNo. 12-1529 27
Dev

. , 993 N.E.2d at 1060. Cannon knew the offi cers w ere lyin g when they deni ed tor turing hi m but he asserts he di d not know about the broader tor ture scan dal that i mpli cated these same offi cers. The recor d rev eals that, at the tim e he w as contemplating settlement, both Cannon and hi s lawy er sus pected that the offi cers had tor tur e d o t he rs and Cannon had di rected hi s lawy er to further inv esti gate both the offi cers and those other inci dents. But hi s at tor ney nev er asked any of the defendants in the or i gin al sui t or any of the ext ended li st of defendants in the current sui t a ny questi ons about the offi cers’ tor ture of other sus pects. Cannon contends that any fai lure to pursue
a d d i tional di scov ery should not be held again st hi m becau se the offi cers wh o li ed about tor turing hi m surely w ould hav e li ed about tor turing other s. He i s undoubtedly corr ect that those offi cers w ould hav e li ed again but there w ere many other
av enues for di scov ery that hi s lawy er could have employ ed and fai led to do so. In supp or t of hi s clai m of a cov er -up by Ci ty offi ci als, Cannon ci tes, among other things, the Goldston Repor t and the results of re-inv esti gations conduc ted by OPS,

8 9

On Septe mb er 28 , 19 90 , OPS i nv esti gator Mi chael Gol dston compl eted a 8 repo rt tha t i denti fi ed fi fty v i cti ms of tor ture b y of fi cers i n Are a 2, dating fro m May 19 73 through October 19 86

. The Gol dston Report concl uded tha t systema tic a

b use and tor ture wasca rri ed out a t Area 2 an d tha t command of fi ce r s at A rea 2 were awa re of the ab use and help ed perpe tuate i t b y ei ther actively partici pating i n the ab use or b y fail i ng to stop i t. R. 39 1- 5, at 2- 26

. In Novemb er 19 90 , Gay l e Shi nes, t he Chie f Admi nistrator of OPS, approved the G old s t on Repo rt and fo rwarded i t to Super i ntendent of Pol i ce LeRoy Marti n. R. 39 1- 5, at 1.

In 19 93 , OPS re-o pened i nv esti gations i nto c e r t ai n cases of tor ture i n 9 (co ntinued. ..)28 No. 12-1529
all of whi ch Ci ty offi ci als atte mpted to conceal in li tigati on b y other plainti ffs

. But all of thi s evidenc e came into exis tence after Cannon settled hi s clai ms. The Ci ty’ s atte mpt to concea l t hi s evidenc e also came after Cannon settled. L a wye rs for other plaint iffs vigoro usly pursued these leads and unc ov ered the

s candal. It i s i mpossi

ble to say whether addi tional di scov ery b y Lanphi er on Cannon’s behalf w ould hav e unc ov ered the broader poli ce tor ture scan dal that has now been brought to li ght. But Cannon has fai led to rais e a genuine i ssu e of material fact reg ardin g the reasonableness of hi s relianc e on the offi cers’ false statements at the tim e he si g ne d the 1988 St i pulati on, especi ally in li ght of hi s fai lure to seek addi tional information in the or i gin al li tigati on. 2. Cannon relies heavily on our deci si on in Bell to ov er come the defi ci enci es in hi s fraud-in-the-induc ement clai m. The defendants contend that Bell i s di stingui shab le and so w e turn to the facts of Bell

. On F ebruary 2, 1958, Milwaukee poli ce offi cer Thomas Grady shot and kill ed Dani el B e l l , a y oung Afric an-Ameri can man the offi cer had pulled ov er for a brok en tail- li ght. Gr a dy and Loui s Kr ause, another offi cer who had partici pated in chas ing Bell, i mmedi ately fabri cated a stor y to

( ...c onti nued) 9 which the OPS had previo usly concl uded tha t the all egatio ns of ab use were “no t susta i ned.” In a numb er of c as e s, i nv esti gators chan ged the reco mmended fi nding to “sustained,” i nclud i ng i n Cann on’s case. No actio n was taken on those reco mmenda tio ns until 19 98 , when Thomas Needham, General Co unsel to the Super i ntendent, i nst r u c t e d OPS to once aga i n cl ass i fy all o f the al l egatio ns as“no t sustained.” R. 39 1- 7, at 62.No. 12-1529 29 justif y what they k ne w w as an unw arr anted shooting. When other offi cers arr i v ed to inv esti gate , Grady told them that he stopped Bell’s car for a brok en tail- li ght, and that Bell ran once the car w as stopped. Grady sai d that he beli ev ed Bell fi t the d e scripti on giv en in a poli ce bulletin of a man w anted fo r armed ro bbery

. T oge ther wi th Kr ause, he told the inv esti gato rs that Bell y elled, “Y

ou w on’t catch me. I’m a holdup man,” as he r an. Grady planted a kni fe in Bell’s hand and told t he inves t ig ator s that he shot at Bell as Bell fled. Grady later changed the stor y

, claim ing that he fi red at Bell after Bell lunged at hi m wi th the kni fe. Bell’s fa mi ly heard about the shooting on the ev ening news

. They w ent to the poli ce station and asked fo r a n explanation. An offi cer repeat ed the stor y giv e n by Grady and Kr ause and presented the kni fe as evidence. Bell’s si ster

, who knew that Bell’s kni fe w as at home, di sputed the clai m and poin ted out that B ell w as left-handed and the kni fe w as recov ered from hi s right hand. At that poin t, the offi cer responded wi th raci a l e p ithets, and ejecte d the fami ly fro m the station w i th thr eats of arr est. The sub sequent internal inv e s ti ga ti on re ve a l ed inconsi stenci es in the stor i es given by Grady and Kr ause. For example, the offi cers had giv en sev era l d i fferent accoun ts of the di stance betw een Grady and Bell when the shots w ere fi red. And Grady changed the stor y to inclu de the detail of Bell lunging wi th the kni fe. Rather than ascertain the tr uth, superi or offi cers and the di stric t att o r ne y told Grady and Kr ause to make their stor i es consi stent. An ext ensi v e co v er -up followed. The offi cers repeat ed their li es to jo urnali sts, inv esti gato rs, and at the
coro ner’s inquest into the death of Dani el Bell. At the inquest, Grady amended the esti mated di stance from whi ch he fi red to30 No. 12-1529
match the findings of the autopsy

. The di stric t atto rney and the deputy medi ca l e xaminer faci li tate d a bi ased examinati on of the wi tnesses

. W i th no oppor tuni ty for cross-examinati on, questi ons from Bell’s fami ly w ere i gnor ed. A s a r e sult, the inquest jury ret urned a v erdic t thatthe killing w as justi fi able,
a finding that a l l bu t destro y ed any chanc e of holding the offi cers li able for ci vil dam ages. Bell’s fami ly

, nev ert heless, di d not beli ev e the offi cers’ stor y and hi s father

, Dolphus Bell, brought an acti on in state court again st Grady and the Ci ty of Milwaukee for wrongful death and indemni fi cati on, seeking damages in the amount of $18,125, at thattim e the statut or y maxim um. Throug hout the lit ig ation, the defendants continued to clai m that Bell had
announc ed that he w as a “hold-up man,” had lunged at Grady wi th a kni fe, and that Grady shot hi m in self-defen se

. A ft e r a mi strial, the case w as reassi gned to a second judge who urged the parties to settle

. A ft er ini tiall y agr eeing or ally to a settlement of $1800, Dolphus Bell refused to si gn the agr eement and refused to accept the City’s chec k. Nearly tw enty y ears after the shooting, Kr ause approached the di stric t attor ney an d admi tte d that he and Grady had l i ed about the shooting. He told the prosecutor th a t B e l l had not lunged at Grady and that Grady had planted the kni fe in Bell’s hand. The di stric t atto rney arr anged a wi ret ap, and in conv er
sati ons wi th Kr ause, Grady admi tte d on tape that he planted the kni fe and that the shooting w as acci dental. Ev entually , Grady pled gui lty to homi ci de by reckless conduc t and perj ury

. In 1979, Bell’s si

blin g s (on behalf of themselv es and their now-dec eased father) fi led sui t in federal court again st Grady ,No. 12-1529 31
the Ci ty of Milwaukee, the poli ce chi ef, t he d e tectiv e who inv esti gate d t he shooting, the county and the offi ce of the Di stric t Att or ney

. In addi tion to ci vil rights clai ms for excessiv e force and depriv ation of li fe wi thout due process, the siblings also alleged that the defendants conspi red to conceal the facts of the shooting, that the conspi racy interfer ed wi th their abi li ty to bring their clai ms again st Grady and the Ci ty of Milwaukee, that the conspi racy depriv ed them of due process and equal prot ecti on, and that these d e p riv ations w ere compens able under secti ons 1981, 1983, 1985 and 1986. A jury found that Grady violated Bell’s consti tutional r ig ht s by shooting and kill ing hi m and als o found that Grady , Kr ause and other Ci ty defendants conspi red to cov er up the facts of the shooting and kill ing of Dani el Bell. The jury conclu ded tha t B ell’s race w as an operat i v e factor in the cons pi racy

. On appeal, the Bell defendants rais ed a numb er o f cl ai ms but only one i s relev ant to Cannon’s appeal: th e d efendants’ arg ument that the Bell fami ly’s clai ms w ere precluded by the earlier settlement agr eement and by re s judic ata

. Pri or to the tr i al, the di stric t court had rej ected these defenses

. The di stric t court conc luded that Dolphus Bell had enter ed into a binding settlement agr eement wi th Grady and t he Ci ty of Milwaukee but ruled that res judic ata could not be appli ed when the recor d

w as replet e wi th allegations of fr aud, concealm ent, and a broad-based cov er -up on the part of th e defendants. The di stric t courtre-affi rmed that r uling after the v erdic t: [T ]he fraud in thi s case i s suffi ci ent to nullify a n other wi se v ali d settlement and di smi ssal

. Thi s i s not
a case in whi ch the defendant si mply li ed and there by made the plainti ff's pr o o f of hi s case di ffi

-32 No. 12-1529
cult. Rather

, t his i s a case of mass i v e conspi racy by hig h r anking Milwaukee offi ci als to prev ent the di scl osure of the tr ue facts of the shooting of Dani el Bell. Gi v en the monopoly on force held by the government, thi s conspi racy prev ented the proper func tioning of the j udi ci al system. Bell , 746 F .2d at 1227 (quoting Bel l v

. C i ty of Milwaukee, 536 F .Supp. 462, 465-66 (D .C. Wi s. 1982) ( hereafter Bell II)). On a ppeal, we agr eed that res judic ata should not apply

. Bell , 746 F .2d at 1227. Or dinaril y , we are obli gate d to afford full fai th and credi t to judi ci al proceedings in state courts of competent jurisdi cti on, and w e apply t he concepts of res judic ata and collateral estoppel as they w ould be employ ed by the courts of the state in whi ch the prior judgmen t w a s render ed. In Bell’s case, the prior judgment w as render ed by a Wi scons in state court, and under Wi scons in law , “a state court judgment has no binding effect in sub sequent li tigati on where the plainti ff propo ses to rely on eviden ce that he or she w as unabl e or fai led to present in the fi rst ac tion on ac count of the defendant's fraud or concealm ent.” Bell 746 F .2d at 1227 (ci tin g Hammes v

. First Nat’l Bank & T rust Co. of Racin e, 255 N.W .2d 555, 559-60 (Wi s. 1977)). W e agr eed wi th the di stric t court that the earlier settlement di d not bar the sub sequent acti on under the rati onale of Hammes . Mor eov er , we held that the po li cy in Hammes appli ed “notwi thstanding defendants' arg ument that the Bell fami ly an d their atto rneys knew from the v ery beginning that the poli ce mus t hav e been lyin g and cov ering up the tr ue ci rcums tances of the shooting.” Bell , 746 F .2d at 1227.No. 12-1529 33 Although the evidenc e suggested that Bell’s fami ly knew from the startthat t he poli ce had li ed, the Bell fami ly

, wi th their beli efs alone, w ere depriv ed of a fai r oppor tuni ty to seek redr ess by virtue of defendants ' fraudulent concealm ent of facts cruci al to the fai r di sposit ion of the di spute. Not only di d Grady and other s cov er up wh a t actually happened the ni ght of the shooting, but, according to the testim o ny of Sy lvia Whi te Bell, when some members of the Bell fami ly w ent t o t he poli ce that ni ght for an explanation, they were told “ni gge rs get out of here,” or be jailed. At the coro ner's inquest, conduc ted as a non-adv ersarial proceeding wi thout oppor tuni ty for cross-examinati on, Bell fami ly questi ons were lar gely ignore d. Bell , 746 F .2d at 1227-28.
W e noted that in the or i gin al acti on br o ug ht by Dolphus Bell, t he defendants continu ed to rely on Grady’s false re presentations made at the tim e of the shooting. W e rej ected as i rr elev ant the defendants’ contention that Dolphus Bell fai led to seek di scov ery in the or i gin al acti on. W e reasoned that, ev en i f the elder Bell had sought dis cov ery , the defendants had not establi shed that he w ould hav e been able to obtain suffi ci ent documentar y and testim oni al evidenc e to ov ercome the inq ue st finding of justifi able homi ci de, a finding that w as faci li tate d wi th perj ured testim ony and a bi ased inv esti gation. The cov er -up i mpli cated high-rankin g members of the poli ce department, as w ell as the di stric t a t t or ney’s offi ce and ev en the m edi cal examiner

. Not unti l Kr ause came forw ard twenty34 No. 12-1529

y ears later and rev ealed the tr uth could the Bell fami ly fai rly present their case: Thus reg ardless of whether the settlement w as v ali d when allegedly enter ed into, i t cannot be used t o preclude future clai ms and in so doin g redo und to the benefi t of defendants. Bell , 746 F .2d at 1228. Fin ally , w e noted that ev en i f the or i gin al settlement w ere giv en preclusiv e e ffect, Bell’s si blings w ould sti ll hav e a ci vil rights clai m for damages a r isin g from the defendants’ acts of concealm ent continuing past the prior acti on. Bell , 746 F .2d at 1228.
3.
W e hav e not had many occasi ons to apply the reasonin g of Bell in the thi rt y y ears since i ts i ssu ance, and that i s as i t should be. Extr aor dina r y ci rcums tances called for an ext rao rdin ary resolu tion. The di stric t court had tw o oppor tuni ties to consi der whe t her Bell could reliev e Cannon of the preclusiv e effect of the 1988 St i pulati on: fi rst on the defendants’ motion to di smi ss, an d later on the defendants’ motion for sum mary judgm e nt. At the motion to di smi ss stage, the di stric t court fi r st conclu ded (as hav e we) that the broad language of the release cov ered all of the clai ms that Cannon now rais es. But the court also found that Cannon had alleged suffi ci ent facts in supp or t of clai ms of fraud and unc onsci onabi li ty to ov ercome the preclusiv e effect of t he e a r l i er settlement. The court relied in part on Bell in reaching that conclu si on. At the sum mary judgment stage, the court rev ersed course and found that Cannon’s situati on w as di stingui shab le from Bell’s becau se Canno n had fi rst-hand knowledge of hi s tor ture and abus e and w as thus aw are fromNo. 12-1529 35
the beginning that he had a caus e of acti on again st the offi cers. I n particu lar

, the di stric t court found deter minati v e that Cannon knew before he si gned the 1988 St i pulati on that he had been tor tured, and he sus pect ed that Area 2 offi cers had tor tured others. Cannon’s cri minal defense lawy er w as aw are of another complaint again st Area 2 offi cers, and Cannon went
so far as to di rect hi s ci vil atto rney to loo k int o the arr est

r e cords of the offi cers inv olv ed to deter mine how many o f their interr ogat i ons ended in confess i ons or charges of tor ture. The di stric t court found that the offi cers’ deni al of Cannon’s
a llegations di d not consti tute fraud, and that Cannon had fai led to produce any evidenc e supp or tin g hi s cl a im that the Ci ty i tself had partici pated in a cov er -up prior to the settlement. Bell, on the other hand, w as kill ed by the office r s, a nd their concealm ent of the facts prev ented Bell’s relat i v es from pursuing hi s consti tutional clai ms. In other w or ds, the di stric t court conclu ded, the offi cers’ concealm ent of the facts prev ented Bell’s fami ly from realizing they had a cause o f action in the fi rst place. On appeal, Cannon asserts tha t hi s knowl e dge of hi s tor ture does not meaningfully di stingui sh hi s case from that of Bell. The Ci ty Defendan ts engaged in a decades- long cov er -up that depriv ed hi m of a fai r oppor tuni ty to seek meaningful redr ess in the courts, he contends, and a s tr ai ght-for w ard appli cati on of B e l l ba rs the defendants from rely ing on the 1988 St i pulation. The Ci ty Defendan ts continue to assert that Cannon knew he had been tor tured and thus w as in full possess i o n of the relev ant facts g iv ing ris e to hi s ci vil rights clai ms, unli ke the Bell fami ly

, who had “their beli efs alone” to ai d them in unc ov ering the tr uth. The Ci ty Defendan ts di smi ss as i rr ele-36 No. 12-1529

v a nt C annon’s clai m that he w as in no posi tion to prove his clai ms of abus e becau se he w as in pris on for murder as a result of the false confess i on he gav e under t he o ffic ers’ tor ture. According to the defendants, Cannon had credibi li ty problems far bey ond hi s convic tion in Ross’s murder , and the offi cers’ deni al of their conduct could not co ns t it ut e fraud in any case becau se Cannon knew the tr uth and w as no t rely ing on the offi cers’ asserti ons when he si gned the 1988 St i pula t ion. Nor coul d there hav e been any fraud by the Ci ty i tself, the defendants ar gue, becau se C a nnon did not assert a Monell clai m in hi s ini tial laws ui t and nev e r so ught di scov ery or information from the Ci ty

. Becaus e Cannon di d not ask the Ci ty for information about other ins t ances of tor ture, he cannot complain now that the Ci ty concealed the information, according to the defendants.
W e agr ee wi th the di stric t court that Bell i s di stingui shab le, and w e look to the tw o c ases in whi ch w e hav e had an oppor
tuni ty to apply Bell to demonstrate the di ffe r ences. W e note, though, that nei ther of these cases inv olv ed a settlement follow ed by a second atte mpt at li tigati on. R a t he r , both addressed free-standing clai ms of deni al of acces s to the c ou rt s. Never t he less, these tw o cases ai d our understanding of Bell

. The “corner stone of our deci si on in Bell w as that the conspi racy had prev ented a full and open di scl osure of facts cruci al to the
caus e of acti on, render ing holl ow the p l ainti ffs ' right of acces s.” V asquez v

. Hernande z, 60 F .3d 3 2 5 , 329 (7th Ci r

. 1995). In V asquez, a w oman w as injured by a stray bullet fi red by an offduty , drunken Ci cero poli ce offi ce r

. On-duty Ci cero offi cers who inv esti gate d the shooting di d nothin g more than ret rieve the b ullets that landed in V asquez’s home and deter mine thatNo. 12-1529 37
the off-du ty offi cer fi ring the shots w as drunk. They then too k
no acti on on the evidenc e for sev eral months. An independent inv esti gation conduc ted by state, county and federal offi ci als conclu ded that a gr oup of off-du ty Ci cero offi cers atte nding a Super Bowl party had set up a tar get in an offi cer’s resi denti al backy ard, and proceeded to fi re multi ple shots. So me of those shots ended up in V

asquez’s home, inc l uding the bullet that injured her

. The o ffi cers w ere repr i manded and the r e sults of the inv esti gation w ere pr ov i ded to V asquez. V asquez then sued both the off-du ty offi cers who fi red the shots and t he or i gin al inv esti gating offi cers from Ci cero. She
a l l e g ed that the Ci cero offi cers conspi red to cov er up and i mpede the inv esti gation, and she sought da ma g e s under secti on 1983 for depr i v ation of the consti tutional right to seek judi ci al relief for her injuries, r e l y ing on Bell

. W e noted that “the right of individu als to pursu e l e gal redr ess for clai ms whi ch hav e a reasonable basis in l a w and fact i s pr ote cted by the First and Four teenth A me ndments.” V asquez, 60 F .3d at 328. A coro llary of thi s right i s that efforts by state actor s to i mpede an indi vidu al's acces s to courts may prov i de the basi s fo r a consti tutional clai m under secti on 1983. Ci tin g B e l l a nd Bounds v

. Smith , 430 U.S. 817, 822 (1 9 77), w e reasoned that judi ci al acces s mus t be adequate, effecti v e, and meaningful, and “there fore, wh e n poli ce offi cers conceal or obscu re i mport ant facts about a cri me from i ts vic tims render ing hollow the right to seek redr ess, consti tutional rights are undoubtedly abri dged.” V asquez, 60 F .3d at 328.
W e di stingui shed Bell , how ev er , becau se the c ove r
-u p f a i led and there w ere no allegat io ns that the plainti ffs w ere pre-38 No. 12-1529

v ented from pursuing a tor t a ct i on in state court or that the

v alue of such an acti on had been reduced by the co ver -up. Although the V

a squezes w ere delay ed for approx i mately si x months from learnin g the facts in supp or t of their clai ms, ulti mately they suffered no prej udi ce and in fact w ere able t o
use the information di scov ered during the multi -juris di cti onal inv esti gation into the ci rcums tance s o f their injury and the ensuing cov er -up by local poli ce offi cers. In contrast, B e l l ’s fami ly w as delay ed from seeking justic e for nearly tw enty y ears and suffered prej udi ce that w as “ext rao rdin ary and ext reme.” V

asquez, 60 F .3d at 329.
S imi larly , in Thompson v

. Boggs , 33 F .3d 847 (7th Ci r

. 1994 ),

w e found Bell di stingui shab le from the case of a man who w as injured by poli ce offi cers during hi s arr est. Bogg s w as a poli ce offi cer who atte mpted to pull Thomps on o v er for driving hi s moto rcycle wi th a sus pended li cens e. Thomps on led Bogg s on
a hi gh-speed chas e that ended when Thomps on colli ded wi th another squad car and w as thro wn to the pav ement. Bogg s then restr ained Thomps on on the gr ound by placing hi s leg
across Thomps on’s back in or der to handcuff hi m. Thomps on later learned he had suffered a co mpr essi on fracture of a
v ert ebrae in his low er back. He sue d Bogg s, clai ming, among other things, that the offi cer deni ed hi m hi s First Amendment

r ight of acces s to the courts when he fai led to rev eal in his poli ce repo rt that he ha d used excessi v e force in arr esting Thomps on. 33 F .3d at 849-50. In particu lar , he complained that Bogg s excluded from the repo rt that Bogg s li fted hi m up from the pav ement, thre w hi m back on the pav ement onto hi s stomach, and then jumped on hi s back wi th a large amount of force. Thompson , 33 F .3d at 852.No. 12-1529 39

W e conclu ded that Thomps on’s case w as di sting uis hable from Bell’s in sev eral i mport ant respects. Most si gni fi can tly , Thomps on w as not depriv ed of meaningful acces s to the courts “becau se he w as personally inv olv ed in the inci dent and thus had fi rsthand knowledge of all the facts and ci rcums tan ce s surrounding hi s a r r e st.” 33 F .3d at 852. Thomps on knew that
an offi cer landed a blow to hi s back during the arr est, and w as able to secu re tw o independent wi tnesses to the ev ents. “Fin al ly , the facts known to Thomps on concerning the arr est

w ere suffi ci ent to enable hi m t o p ro mptly fi le the instant laws ui t unli ke B e ll, where the tr ue facts w ere concealed there by denying [Bell’s fami ly] the oppor tuni ty to fi le a laws ui t unti l some tw enty y ears after the fact.” 33 F .3d at 852-53.
W e note again that nei ther V asquez nor Thompson addressed
a settlement follow ed by a sub sequent laws ui t inv olving the
same facts. Both inv olv ed straight-forw ard clai ms of deni al of meaningful acces s to the courts. In each case, w e ul tim ately di stingui shed Bell becau se the plainti ffs w ere in fact able to fi le their clai ms in a tim ely manner , and knew the relev ant facts of their clai ms at the tim e the clai ms aro se (as w as the case in Thompson) or soon there after (as occurred in V as qu e z ). Sim i

larly , Cannon knew the f acts that gav e ris e to hi s clai ms at the tim e the clai ms aro se. Li ke Thomps on, he knew fi rst-hand that he had been abus ed by the officer s, that he had falsely confess ed and that hi s fals e confess i on had contribu ted to hi s convic tion. Li k e Tho mpson, he knew that the offi cers w ere lyin g or omi tting relev ant fact s fr o m their later accoun ts of their acti ons. Li ke Thomps on, the facts known to Cannon w ere suffi ci ent to enable hi m to promptly fi le hi s laws ui t. Cannon’s case, in other w or ds, presented a typical he -s ai d/they-sai d40 No. 12-1529

contro v ersy; in Bell’s case, only the offi cers’ si d e o f t he stor y exis ted.
Mor eov er

, in Bell’s case, there w as an i mmedi ate, top-down
cov er -up of the facts, wi th hi gher r a nk ing offi cers and the d i stric t atto rney di recting the wrong- d oe rs to syn ch ro niz e the i r stor i es. Whe n seek ing information about the shooting, Bell’s fami ly w as sent aw ay from the poli ce stat i on wi th race-based threat s to leav e or face arr est. The inquest w as conduc ted in a biased fash i on and as a non-adv ersarial proceeding in whic h the ques t io ns of the Bell fami ly w ere i gnor ed. The inquest’s conclu si on that the shooting w as j usti fi ed presented a si gni fi

cant ro ad-block to the Bell fami ly’s ci vil sui t. In contrast, at the tim e that Cannon settled hi s case and si gned the 1988 St i pulation, s o far as t he recor d rev eals, there w as not y et a cov er -up of Cannon’s case by hi gher ranking o ffic i als. Cannon has no evidenc e that the defendants acti v ely di scouraged hi m from seeking di scov ery or learnin g the t ruth, as happened to Bell’s fami ly when they approached the poli ce for an explanation of Dani el’s death. Indeed, Cannon sus pected that others h a d been tor tured and he w as aw are of publi c repo rt s of some inci dents prior t o t he settlement. Almost certainly , the offi cers di rectly inv olv ed in Cannon’s tor ture li ed in their deposi tions and to OPS inv esti gato rs. But Cannon has presented no evidenc e that the Ci ty knew the offi cers were lyin g dur ing the fi rst OPS inv esti gation or that the Ci ty thw art ed Cannon’s efforts to obtain di scov ery or learn the facts of hi s tor ture. I n fact, Cannon’s lawy er di d not seek di scov ery from the Ci ty reg arding other instances of tor ture prior to advis ing Cannon to settle the case, and so the Ci ty had no oppor tuni ty to influ ence Cannon’s deci si on by f a i l in g to di scl ose thi s information. As forNo. 12-1529 41
the offi cers’ conduc t in lyin g during their dep o sit ions, as w e explain ed abov e, Cannon knew the offi cers w e re lyin g and knew all of the relev ant facts giving ris e to hi s clai ms; he faced
a typical credibi li ty contest. Bell’s fami ly sus pected but di d not know what happened to Dani el Bell becau se Dani el w a s not there to supply a contr ary v ersi on of ev ents. Other s who w ere abus ed by Area 2 offi cers pursued their cl ai ms wi th more vigor than Cannon and ev entually unc ov
ered the broader poli ce tor ture scan dal inv olving Jon Burge, the offi cers wh o w or ked under hi m, and the poli ce offi ci als who look ed the other w ay and someti mes acti v ely conc e a led what they knew about the tor tur e

. B ut at the tim e Cannon si gned the 1988 St i pulati on releasing t he C it y and all of i ts employ ees from all present and future clai ms aris ing from hi s tor ture, Cannon w as not rely ing on any fal se information prov i ded by t he Ci ty Defendan ts on the broader tor ture
scan dal becau se he had not sought di scov ery from the Ci ty or the indi vidu al defe n d ants on any other inci dents inv olving any other arr estees. Although he now has evidenc e suggesting that the Ci ty behav ed deplorably in other li tigati on after Cannon settl e d his case, that after -the-fac t behavi or cannot be sai d to hav e induc ed Cannon to sett le hi s cas e. Cannon essenti ally clai ms t ha t he w ould not hav e settled hi s case i f he had realized that better proo f w ould be av ai lable in the future. If he had known that the offi cers w e r e abus ing other s, he could hav e used that information to bolster hi s own credibi li ty

, whi ch had been se r iously damaged by hi s false
co nf e ssi on and convic tion for the murder of Darrin Ross. W e pause fo r a mo ment to address the di singenuousnes s of thi s arg ument. First, Lanphi er, Cannon’s lawy er in the civ il case,42 No. 12-1529
advis ed hi m to settle in 1988 not becau se of cr e d ibil ity problems creat ed by hi s conv i cti on for Ross’s murder but because of cred ibil ity i ssu es created by Cannon’s first murder convic

tion, the one for whi ch he w as o n parole when he becam e embr oiled in Ross’s murder

. Lanphi er beli ev ed that he could hav e evidenc e of the second murder convic tion excluded at the ci vil tr i al. R. 391-7, at 2. Lanphi er advis ed Cannon to settle becau se the case boi led down to a questi on of wi tness credibi li ty and Cannon’s first murder convic tion ma d e i t hi ghly unli kely that a jury w ould accept Cannon’s v ersi on of the facts
ov er that of the defendants. Cannon ’ s co mplaint that he li tigated under the b urdensome w ei ght of hi s false convic tion for Ross’s murder rings hollow in li ght of hi s lawy er’s actual advic e at the time of the settlement. Second, Cannon in fact beli ev ed that the offi cers had a bused other sus pects and had asked hi s lawy er to pursue di scov ery about other abu se at Area 2. He settled his case knowing that thi s evidenc e—this better proo f—mi ght exis t, and k no win g that hi s lawy er had fa iled to pursue i t. R. 363-17, at 2 (letter from Ca nn o n t o Lanphi er accepting the settlement). Cannon too k hi s lawyer to task for not believing that Cannon had been tor tured, and for being unw i lling “to fi ght li ke hell to prove that they di d do i t.” R. 363-17, at 2. The larger problem wi th Cannon’s reg retov er settlin g the case i s that, unli ke the fa mil y of Dani el Bell, Cannon knew all of the relev ant facts at the tim e he settled; to the e x t e nt he di d not know the facts reg ardin g the offi cers’ tor ture of other s, he w as w ell aw are that hi s lawy er opted n ot to pursue di scov ery of those facts. Acti ons take n to conceal the po l ice tor ture scan dal after the settlement, abhorr ent though they w ere, could not and did n ot indu ce Cannon to sett le.No. 12-1529 43

Fin ally , w e note that Bell i s di stingui shabl e in a few addi

tional respects. W

e co mmented in Bell that, ev en i f the settlement reached in the fi rst case br o ug ht by Dolphus Bell w ere giv en preclusiv e effect, mu ch of the sec ond sui t w ould not be barred. 746 F .2d at 1228. The settlement reached by Dolphus B e l l di d not speci fi cally prohibi t future li tigati on for acts o f concealm ent that continued past the prior acti on. Cannon’s settlement wi th the Ci ty di d bar future laws ui ts aris ing fr om the same inci dent that w as the subject of the fi rst laws ui t. Mor eov er

, Bell’s sib l ing s w ere not parties to the fi rst laws ui t and the defendants fai led t o e st abli sh that collateral estoppel

w ould preclude their claims. C a nnon, in contrast, w as the plainti ff in both sui ts. In the end, Bell sim p l y does not apply , and there is no w ay to reliev e Cannon from the preclusiv e effect of the 1988 St i pulati on and settlement.
4. The Ci ty Defendants hav e consist e nt ly arg ued that thi s li tigati on i s precluded by the 198 8 S t i pulati on, a settlement agr eement that they hav e asked us to analyze using prin ci ples of Illinoi s contract law

. By now , the reader m ay b e w ondering why w e ha ve been mi red in Illinoi s contract law when the straight-forw ard prin ci ples of res judic ata w ould seem to apply

. “Under res judic ata, a final judgment on the merits bars further clai ms by parties or their privi es based on the sa me caus e of acti on.” Monta na v

. United States , 440 U.S. 147, 153 (1979). Here, the di stric t court di smi ssed wi th prej udi ce the fi rst sui t again st the three offi cers and enter ed judgment again st the C it y of Chi cago, incorpor atin g by refer ence the 1988 St i pulati on. That consti tutes a final judgment on the merits. See Lawlor v

. National44 No. 12-1529

Screen Serv

. Corp. , 349 U.S. 322, 327 (1955); Golden v

. Barenbor g, 53 F .3d 866, 871 (7th Ci r

. 1995). A party asserting res judic ata or clai m preclusi on mus t establi sh: “(1) i dent ity of the clai m, (2) i denti ty of parties, whi ch inclu des those in ‘privi ty’ wi th the

or i gin al parties, and (3) a final judgment o n the merits.” Ross
ex rel. Ross v

. Boa rd of Educ. of T wp. High Sch. Dist. 21 1 , 486 F .3d 279, 283 (7th Ci r

. 2007). Becaus e the ear l ie r judgment w as render ed by a federal court, the federal law of clai m preclusi on appli es here. Ross , 486 F .3d at 283. “In or der to deci de whether the tw o cases inv olv e the same clai m, w e ask whet he r t hey aris e out of the same tr ansac tion. I f t he y di d, whether or not they w ere actually rais ed in the earlier la ws uit, they may not be asserted in the second or sub sequent proceeding.” Ross , 486 F .3d at 283. The eleme nts r equi red for clai m pr eclus i on w ould appear to be present here. After all, Cannon fi led his 1 9 86 sui t in federal court, asserting clai ms aris ing from hi s tor ture by three poli ce offi cers. The settlement (wh i ch inclu ded the Ci ty and all of i ts employ ees) that en sued w as enshrined in a final judgment by the di stric t court, a judgment t ha t incorpor ated the 1988 St i pulati on by refe r e nc e. Arg uably , the clai ms in both sui ts aro se from the same oper ative facts , t he parties w ere i denti cal, and there w as a final judgment on the merits. Bell i tself prov i ded a n e x cept i on to the normal oper ation of res judic ata

. Y

et the Ci ty has not arg ued the preclusiv e effect of res judic ata, instead confining i ts arg ument to Illinoi s contract prin ci p l e s a nd the 1988 St i pulati on. Becaus e res judic ata i s a defense that can be forfeited i f not pled, w e see no reason to further address the i ssu e. Arrow Gear C o. v

. Downers Grove Sanitary Dist. , 629 F

. 3 d 633, 638 (7th Ci r

. 2010). W e menti on i tNo. 12-1529 45 only bec ause i t s eems odd to i gnor e an i ssu e that is other wi se
so obviousl y i mpli cated by the procedura l st a nce of the case. The Ci ty Defendan ts hav e confined their defense of the case to p ri n c i p les of Illinoi s contract law and w e hav e there fore li mi te d our analysisto t hat defense. III.
Cannon next contends t ha t i t w ould be unconsci onable to hold hi m t o the ter ms of the 1988 St ipulati on becau se it i s t he product of unequal bargaining posi tions secur e d by the defendants’ fraud. Cannon asserts that he “negot i ated under the i mpossi

ble burden of a convic tion for murder ,” namely hi s convic tion for the murder o f Darr in R oss. Th e defendants, on the other hand, bargained for the settlement from the false posi tion o f blameles s publi c serv ants. According to Cannon, wi thout thi s handi cap, he w ould hav e obtained a se t tlement comparable to those obtained by other plainti ffs who suffered at the hands of Burge and hi s offi cers. The deter minati on of whether a contract or a port i on of a contract i s unc onsci onable i s a questi on of law , whi ch w e
rev i ew de novo

. Kin kel v

. Cin gular W ireless LLC, 857 N.E.2d 250, 264 (Ill. 2006). Cannon clai ms both procedural and sub stanti v e
unc onsci onabi li ty in the 1988 St i pulati on. Procedural
unc onsci onabi li ty consi sts of some i mpropr i ety during the process of formin g the contract depriving a party of meaningful cho ice

. Phoenix Ins. Co. v

. Rosen , 949 N.E.2d 639, 647 (Ill. 2011); Kin kel , 857 N.E.2d at 264. Substanti v e unc onsci onabi li ty
concerns the actual ter ms of t he co ntract and examines the relat i v e fai rness of the ob l i ga ti on s a s s u m e d, a s kin g whether the ter ms are so one-si d e d a s to oppress or unfai rly surpri se an46 No. 12-1529

innocent party

. Phoenix 949 N.E.2d at 647; Kin kel, 857 N.E.2d at 267. The facts underlyin g C a nnon’s clai ms of procedural
unc onsci onabi li ty ar e i denti cal to those supp or tin g hi s cl ai ms of fraud in the induc ement. That i s, he relies on the fact that the offi cers li ed repeat edly , to the OPS, to the t r ia l co urt, and in their deposi tions, and in doin g so secu red his wr ongful convic tion for murder

. That convic tion, he arg ues, placed hi m in a sev erely di sadv antaged bargaining posi tion. The set t l e
ment, he contends, w as secu red by “y ears of perj ury , obstruction, supp ressi on of evidenc e, and decei t.” At the same tim e, i t i s sub stanti v ely unc onsci onable, Cannon asserts, becau se the ter ms are oppressi v ely one-si ded.
W e cannot say that Cannon w as depriv ed by the C it y Defendan t s of a meaningful choi ce at the tim e he settled the
case. Th e fa ct or s that w e consi der in asses sing procedural
un co nsc i onabi li ty “inclu de the manner in whi ch the contract

w as enter ed into, whether each party had a reasonable oppor
tuni ty to understand the ter ms of the contract, and whether i mport ant terms were hi dden in a maze of fine prin t.” Frank's Maint. & Eng’g, Inc. v

. C. A. Roberts Co. , 408 N.E.2d 403, 410 (Ill. App. 1st Di st. 1980). See also Phoenix, 949 N.E.2d at 647; Kin kel , 857 N.E.2d at 264. First, to the ext ent that Cannon w as oper ating under the burden of a convic tion for murder , he brought that burden on hi mself wi th hi s 197 1 co nv ict i on in the Lazar murder

. Lanphier advis ed Cannon that he w ould seek to exclude from the ci vil tr i al Cannon’s convic tion for Ross’s murder but Lanphi er also advis ed Cannon that the e a r l ie r convic tion w ould be a d mis si ble. The fi rst murder convic tion

w ould seri ously damag e Cannon’s credibi li ty , as w ouldNo. 12-1529 47

C annon’s then-memb ershi p in the El Rukn street gang

. Whether Lanphi er w as corr ect about the ad mis sibi li ty (or inadmi ssi

bi li ty) of Cannon’s murder c onvicti ons i s i rr elev ant; at the tim e Cannon deci ded to settle, he had only the advic e of hi s lawy er to gui de hi s deci si on, an d that advic e excluded the burden of the second convic tion. Mor eov er , Ill in oi s courts hav e been reluctant to hold that inequali ty in bargaining power alone suffi ces to inv ali date an other wi se enforce a bl e agr eement. Melena v

. Anheuse r-Busch, Inc. , 847 N.E.2d 99, 110 (Ill. 2006). Cannon w as, of course, repr esented by couns el when he enter ed into the 1988 St i pulat io n, another factor that w ei ghs again st a finding of procedural unc onsci onabi li ty. Fagala v

. Sanders , 488 N.E.2d 1093, 1096 (Ill. Ap p

. 5th Di st. 1986). Cannon’s lette r to hi s lawy er accepting the settlement rev eals that Cannon w as deeply di ssati sfi ed wi th his l awy er but also that he understood what w as at stake in settlin g hi s case. R. 363-17, at 2. At hi s deposi tion, Cannon confi rmed that he knew the settlement w ould end hi s laws ui t, that no one forced hi m or threat ened hi m to settle, and tha t he k ne w he could take the case to tr i al. R. 363-11, at 550:5-8; 552:9-553:5.
Mor eov er

, the “y ears o f perj ury

, obstruction, supp ressi on of evidenc e, and decei t” occurred large ly after Cannon settled hi s case. T

rue, the offi cers most di rectly inv olv ed in the tor ture li ed for many y ears prior to the 1 9 8 8 set tlement, thro ughout Cannon’s cri minal and ci vil proceedings. That w ould hav e led to a typical credibi li ty contest in court, and that i s not a reason for v acating a settlement agr eement. As for the acti ons of Ci ty employ ees oth er than the abus i v e offi cers, Cannon’s lawy er di d not questi on the Ci ty Defend a nt s about the tor ture of48 No. 12-1529

persons other than Cannon hi ms e l f. Havin g nev er asked for the informat io n about the tor ture of other s, Cannon may not
now clai m that the settlement process w as marred by a lack of information about t he tor ture of other s. What the offi cers di d to Cannon w as un c on sci onable; the formation of the settlement agr eement w as not. As for s ub s tantive un c on s c i on ab i l i ty, the whole of Canno n’s arg ument appears to be that plainti ffs wh o settled wi th the Ci ty after the Burge scan dal came to li ght receiv ed fa r more g e nerous settlements (in some cases, mi lli ons o f do llars), and i t w ould be unc onsci onable to hold Cannon to the or ig inal $3000 settlement. The Ci ty Defendants poin t out that Cannon’s
or i gin al complaint sought $45,000, and that $3000 i s not
unc onsci onable in li ght of Cannon’s “own v aluati on of his clai m at the tim e of the prior set t lement, hi s self- induc ed credibi li ty problems, hi s admi tte d compli ci ty in Ro s s ’s mu rd e r , and the publi c poli cy of finali ty .” Illinoi s law does not supp or t Cannon’s clai m for su bs t a ntiv e unc onsci onabi li ty. Although t he unc onsci onabi li ty deter minati on i s not restr ict e d to the facts and ci rcums tances in exis tence at the tim e the c ontr act w as enter ed into, Cannon

w as fully aw are of the ext ent of hi s injury at the tim e he settled. See Razo r v

. Hyun dai Motor Am e r i c a , 854 N.E.2d 607, 621 (Ill. 2006) (courts may consi der matter s whi ch become known only sub sequent to the drafting of t he contract— i.e. , the type of injuries suffered as a result of breach—in asses sing the
unc onsci onabi li ty calculus ). He di d not know that the offi cers had assau lted other s, information that certainly w ould hav e bolstered hi s credibi li ty a nd probably hi s recov ery , but hi s lawy er di d not seek that inform a t ion. In Fagala, the courtNo. 12-1529 49 rej ected a clai m t hat a plainti ff could av oid a prior sett lement by asserting that other s in si mi lar ci rcums tances w ere pai d

more. Fagala, 488 N.E.2d at 1095-96. The court noted that the d i s p a rity b e tw een the settlements may hav e been w arr ante d b y the di fference in the clai ms again st thos e p a r ties

. Fagala, 488 N.E.2d at 1096. Other than asserting th a t the other plainti ffs

w ere also tor tured by some of the same o ff i cers and receiv ed large r sett lements, Cannon makes no attempt t o demonstrat e si mi lariti es bet w een the settlement ci rcums tances of other plainti ffs and hi mself . Wi thout knowing what speci fi c factor s led to t hose settlements, w e cannot say that it w as un consc i onable for Cannon to receiv e si gni fi cantly less. “Pub li c poli cy in Illinoi s fav or s settlements and di ctates that, absent fraud or duress, settlements should be final.” Pritchett v

. Asbesto s Claims Mgmt. Corp. , 773 N.E.2d 1277, 1285 (Ill. App. 5th Di st 2002). See also Carlile, 648 N.E.2d at 321 (“Publi c poli cy fav or s the settlement of clai ms, and i t i s i mport ant that clai ms, once fai rly

r e so lv ed, not be resurr ected”). Again, the fraud exception in these public poli cy statements refer s to fraud in the induc ement of the settlement, and Cannon cannot demo ns t r ate that he reasonably relied on mi sstatements by the Ci ty Defendan ts in e xecuting the 19 8 8 St i pulati on. When he settled hi s clai ms, he k ne w for a fact t hat the offi cers w ere lyin g. He ev en k ne w that hislawy er w as not pursuing hi s cl ai ms to hi s sati sfac tion and that there mi ght hav e been better evidenc e to supp or t hi s clai m. He settled anyw ay

. Hi s settlement w as not unc onsci onable and i s therefor e final.50 No. 12-1529
IV

. Thi s case casts a pall of sham e ov er the Ci ty of Chi cago: on the poli ce offi cers who abus ed the posi tion of pow er entrusted to them, on the ini tial tr i al judge who w as later i mpri soned for accepting bribes to fi x murder cases, on Ci ty offi cial s who turned a bl ind ey e to (and in some instances acti v ely concealed) the clai ms of scores of Afric an-Ameri can men that they

w ere being bi zarr ely and horr i fi cally abus ed at Area 2, and last but not least o n Cannon hi mself , who w as a convic ted mur
derer out on parole whe n, by hi s own admi ssi on, he drove a
car for hi s fellow El Rukn gener al as a murder w as commi tte d in the back seat , and then helped di spose of the body and conceal the cri me. It is d ifficult to concei v e of a just outcome giv en the appalling acti ons by almost ev ery one associ ated wi th these ev ents but the law reg ardin g the finali ty of se t t l ements governs the result: Cannon brought hi s sui t again st those who abus ed hi m and settled i t k no wing full well that those defendants w ere lyin g. He ha s no evidenc e that, at the tim e he d e cided to settle, the Ci ty knew about and purposefully
co nc ealed a broader scan dal in or der to induc e hi m to settle. He si gned a broad release precluding him fr om bringing further clai ms aris ing from the same set of facts again st any of the Ci ty De fendants. Fin al judgments are final for a reason. Cannon fai led to r a i se a genuine i ssu e of material fact on any t he or y that w ould reliev e hi m of the preclusiv e effect of the fi rs t judgment. The j udgment of the di stric t court i s t herefor e AFF IRM ED.