In the

United States Court of Appeals

For the Seventh Circuit

No. 12-1529

DARRELL CANNON,

Plaintiff-Appellant,

v.

JON BURGE, former Chicago Police

Lieutenant, et al.,

Defendants-Appellees.

Appeal from the United States District Court for the 

Northern District of Illinois, Eastern Division.

No. 1:05-CV-02192 — Amy St. Eve, Judge.

ARGUED JANUARY 22, 2013 — DECIDED MAY 27, 2014

Before RIPPLE,ROVNER, Circuit Judges, and BARKER, District

Judge.*

ROVNER, Circuit Judge. This appeal casts a harsh light on

some of the darkest corners of life in Chicago. The plaintiff, at

The Honorable Sarah Evans Barker, of the United States District Court for

*

the Southern District of Indiana, sitting by designation.
2 No. 12-1529

the time of the events giving rise to this suit, was a general in

the El Rukn street gang, out on parole for a murder conviction,

when he became embroiled in a second murder. Among the

defendants are several disgraced police officers, including the

infamous Jon Burge, a man whose name evokes shame and

disgust in the City of Chicago. At issue is whether the plaintiff, 1

who long ago settled his claims against the defendants, should

be allowed to have a second chance to litigate his case, on the

grounds that the defendants engaged in such an extensive

cover-up of the police torture scandal at the center of this case

that the plaintiff was effectively denied his day in court the first

time around. The district court held that the settlement

precluded further litigation and granted summary judgment

in favor of the defendants. We affirm.

I.

In 1971, Darrell Cannon, the plaintiff here, was convicted of

the murder of Emanuel Lazar and was sentenced to 100 to 200

 In a career spanning more than twenty years, Jon Burge rose to the rank 1

of Commander in the Chicago Police Department before he was fired in

1993 for torturing and abusing suspects in order to obtain confessions. 

More than one hundred African-American arrestees accused Burge and

officers working under him of engaging in sadistic acts. Burge was later

prosecuted and convicted on charges of obstruction of justice and perjury

related to lies he told during lawsuits for civil damages. He is currently

serving a fifty-four month sentence in a federal penitentiary. See United

States v. Burge, 711 F.3d 803 (7th Cir.), cert. denied, 134 S. Ct. 315 (2013); Press

Release, U.S. Department of Justice, Former Chicago Police Officer Jon

Burge Sentenced for Lying About Police Torture (Jan. 21, 2011) (available

athttp://www.justice.gov/opa/pr/2011/January/11-crt-090.html (last visited

May 23, 2014)). 
No. 12-1529 3

years in prison. After serving twelve years of that sentence,

Cannon was paroled in January 1983. Approximately ten

months later, on October 26, 1983, Cannon found himself

behind the wheel of a car, traveling down the Bishop Ford

Freeway in Chicago, as one of his fellow El Rukn generals, 2

Andrew McChristian, murdered Darrin Ross in the back seat.

Cannon then followed McChristian’s directions to take thenext

exit off the freeway, driving to a field behind the Altgeld

Gardens housing complex. There, McChristian and Cannon

dumped Ross’s body onto the side of a dirt road adjoining the

field. Not knowing whether Ross was dead or alive, Cannon

then drove McChristianto a pool hall where Cannon picked up

his own car and drove home. 

A few days later, on November 2, 1983, Cannon was

arrested for Ross’s murder by three of the defendants in this

case, Sergeant John Byrne and Detectives Peter Dignan and

Charles Grunhard. These men worked for the Chicago Police

Department’s Area 2 Violent Crimes division under two other

defendants in this case, then-Commander Leroy Martin and

then-Lieutenant Jon Burge. Together with police detectives

Michael Bosco and Daniel McWeeny, Byrne, Dignan and

Grunhard threatened and tortured Cannon until he confessed

that he knowingly participated in the murder of Darrin Ross. 3

At the time of the murder, this stretch of highway was known as the 2

Calumet Expressway. It was renamed the Bishop Ford Highway in 1996. In

his 2010 deposition, Cannon referred to the road as “the Bishop Ford.”

Cannon concedes that he was driving the car in which the murder was

3

carried out but contends that he did not know that McChristian was going

(continued...)
4 No. 12-1529

All of this was accompanied by race-based taunts and threats.

Each time Cannon thought he was safely away from his

tormentors, he recanted his confession, and each time he

recanted, he was subjected to more torture. 

Almost immediately after leaving police custody, Cannon

recanted his confession again and began to complain about the

treatment he received at the hands of these officers. Five days

after his arrest, his wife filed a complaint on his behalf with the

Chicago Police Department’s Office of Professional Standards

(“OPS”). But Byrne, Dignan and Grunhard lied to OPS, and the

complaint was dismissed as "not sustained." At his criminal

trial in 1984, Cannon moved to suppress his confession on the

grounds that it was obtained through torture and coercion.

Again Byrne, Dignan and Grunhard as well as McWeeny lied,

this time under oath, denying that Cannon had been tortured.

The court denied the motion to suppress and Cannon's

confession was used at trial. In 1984, Cannon was convicted of

Darrin Ross's murder and sentenced to life in prison. 

In September 1986, two years after his conviction, Cannon

filed a pro se federal complaint from prison, asserting for a

third time that Byrne, Dignan and Grunhard had mistreated

him. In particular, he alleged that Dignan beat him on the knee

with a flashlight; that Dignan played “Russian Roulette” with

him with an apparently loaded shotgun, repeatedly placing the

barrel in Cannon’s mouth and pulling the trigger when

Cannon refused to answer questions; that Grunhard, Dignan

 (...continued) 3

to murder Ross. He explains that his actions following the murder were due

to shock at what had just occurred. 
No. 12-1529 5

and Byrne lifted him up from behind by his handcuffs, causing

unbearable pain; and that Byrne pulled down Cannon’s pants

and shorts and applied an electric cattle prod to his testicles,

penis and the inside of his mouth repeatedly over an hour-long

period as the officers questioned Cannon about Ross’s murder.

Cannon sought from each officer “$15,000 in compensatory

and punitive damages, plus physical injuries, pain, suffering,

emotional and mental distress” as well as other relief the court

deemed just and proper. R. 28-2, at 42-48. The court appointed

attorney E. Paul Lanphier to represent Cannon. Lanphier

deposed Byrne, Dignan, Grunhard and McWeeny and all four

continued to lie under oath and deny that they had abused

Cannon. Both Cannon and Lanphier suspected that Cannon

was not the only arrestee who had been abused by these

officers – indeed, there had been some news reports of other

incidents—but they did not know that the abuse against

African American men by Area 2 officers was pervasive and

occurred with the complicity of Burge. They did not know that

many of the same bizarre and sadistic techniques that these

officers used against Cannon had also been used against many

other African American men who had been arrested in Area 2.

Despite their suspicions, Lanphier did not ask the City or the

individual defendants about any other victims of the Area 2

officers.

In 1988, Lanphier assessed Cannon's case in light of the

facts known to him at the time: Cannon was now a twiceconvicted murderer, a long-time gang member, sentenced to

life in prison, accusing his arresting officers of torture. Although Lanphier believed that the second murder conviction

would be inadmissible at the civil trial, he advised Cannon that
6 No. 12-1529

the first murder conviction would be considered relevant and

admissible. There was no physical evidence to corroborate

Cannon's claims and the officers had repeatedly denied the

allegations, including under penalty of perjury. Lanphier

assessed Cannon's chances of prevailing as slim and advised

Cannon to settle for the $3000 nuisance value offered by the

defendants. R. 391-7, at 2-4, 6. Cannon accepted his lawyer's

advice and settled the suit in February 1988, signing a broadly

worded release of his claims against the named defendants as

well as the City of Chicago, which was joined for the purpose

of settling the case:

In consideration of the hereinafter-indicated settlement and Judgment entered thereon, Plaintiff agrees

to indemnify and hold harmless the City of Chicago,

its officers, agents and employees including, but not

limited to, the remaining Defendant, from any

claims, losses, damages or expenses incurred, or

which may be incurred, by reason of the incident

which was the basis of the litigation.

...

Plaintiff understands, upon advice of his counsel,

and agrees that such Judgment is a final and total

settlement of all claims he has, or may have in the

future, arising either directly or indirectly out of the

incident which was the basis of this litigation, and

that such finality is applicable to the remaining

Defendant, the CITY OF CHICAGO, its officers,

agents and employees.
No. 12-1529 7

R. 28-2, at 38-39 (hereafter, the “1988 Stipulation”). After costs

and fees, Cannon netted $1247.70. The case against the officers

was dismissed with prejudice, and final judgment was entered

in favor of Cannon and against the City of Chicago. The 1988

Stipulation was incorporated by reference into the judgment

order. R. 28-2, at 37-40; 50-51.

In the meantime, Cannon appealed his conviction. The

Illinois appellate court affirmed the denial of his motion to

suppress his confession but remanded the case to the trial court

for a hearing on the prosecution's use of peremptory challenges to exclude African American jurors. After holding that

hearing, the trial court ordered a new trial. People v. Cannon,

688 N.E.2d 693, 693-94 (Ill. App. 1st Dist. 1997) (“Cannon I”). At

the subsequent retrial in 1994, the court declined to revisit the

issue of the voluntariness of Cannon's confession and once

again allowed the confession to be used as evidence. Cannon

was again found guilty of the murder of Darrin Ross, and

again sentenced to life in prison. 

Cannon appealedagain and, this time, the court vacated the

conviction and the sentence, and remanded for a new hearing

on the voluntariness of Cannon's confession. Cannon I, 688

N.E.2d at 694. The court noted that Cannon had presented the

trial court with new evidence in support of his motion to

reconsider the ruling from the first trial. In particular, Cannon

wished to present (1) a police log indicating that his arresting

officers had checked out a shotgun on the day of his arrest,

contrary to their testimony at his first suppression hearing that

they were not in possession of a shotgun; (2) deposition

testimony from Byrne and Dignan in a related civil action; (3)

photos taken by OPS of the site where Cannon said he was
8 No. 12-1529

tortured; (4) testimony of sixteen arrestees who filed charges

with OPS that they had been tortured by some of the same

officers at Area 2; and (5) evidence that cattle prods small

enough to fit in a car’s glove compartment existed in 1983.

Cannon also supported his motion with an offer of proof

stating that the defense, if allowed, would have presented the

testimony of eleven other men who had been mistreated by

some of the same officers who tortured Cannon. Cannon I, 688

N.E.2d at 694-96. 

The court concluded that ordinary principles of collateral

estoppel should not bar re-litigation of Cannon’s motion to

suppress because this was no ordinary case. First, the judge

who originally ruled on Cannon’s motion to suppress in his

first trial was Thomas Maloney, himself an ignominious figure

in Chicago politics who was later convicted of accepting bribes

to fix murder cases during the same time period as Cannon’s

original trial. See Bracy v. Gramley, 520 U.S. 899 (1997). Second,

Cannon was now prepared to present evidence that the officers

who procured his confession regularly used torture to coerce

confessions. And third, Cannon had new evidence of coercion

that was not available at his 1984 trial. The court found that

new evidence and “special circumstances” were well-recognized exceptions to the general rule barring re-litigation of a

decided motion, and that both exceptions were relevant in

Cannon’s case. The court surveyed the evidence that warranted application of the exceptions:

Reports prepared by the Office of Professional

Standards of the Chicago Police Department, surveying the alleged systematic abuse of suspects at
No. 12-1529 9

Area 2 headquarters, were not available to Cannon's

lawyer in 1984. 

Nothing in the record demonstrates that Cannon's

lawyer knew or should have known of the claims of

brutality made by other suspects questioned at Area

2. In addition, newly discovered or not, the evidence

of 28 other Area 2 arrestees, 16 of them questioned

by some of the officers who questioned Cannon,

amount to “special circumstances” that justify a new

hearing of the motion to suppress.

Cannon I, 688 N.E.2d at 697 (internal citation omitted). In

December 1997, the appellate court therefore remanded the

case for a new suppression hearing that included the new

evidence Cannon wished to present.

In January 2001, after the trial court held a hearing on

Cannon’s renewed motion to suppress but before the court

ruled on that motion, Cannon agreed to plead guilty to the

lesser charges of armed violence and conspiracy to commit

murder, in exchange for a total sentence of forty years’

imprisonment. Cannon stipulated that the witnesses who were

called to testify in the second trial would testify consistently at

any future trial, and that assistant state’s attorney Henry

Simmons, who took handwritten notes of Cannon’s confession

in 1983, would testify in conformance with his prior testimony.

Without admitting guilt, Cannon agreed that the evidence

presented at the prior trial and the statement recorded by

Simmons would be sufficient to constitute proof of guilt of the

charges of armed violence and conspiracy to commit murder.

See North Carolina v. Alford, 400 U.S. 25, 37 (1970) (“An individ-
10 No. 12-1529

ual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even

if he is unwilling or unable to admit his participation in the acts

constituting the crime. Nor can we perceive any material

difference between a plea that refuses to admit commission of

the criminal act and a plea containing a protestation of innocence when ... a defendant intelligently concludes that his

interests require entry of a guilty plea and the record before the

judge contains strong evidence of actual guilt.”). With full

credit for the time Cannon had already served, the parties

agreed that he would be eligible for release in August 2003.

At some point, it became apparent to Cannon that, irrespective of his plea agreement with the State, the Illinois Prisoner

Review Board (hereafter “IPRB” or the “Board”) had concluded that Cannon was not eligible for release until July 2064,

some sixty-one years beyond the date agreed to in his plea. As

we noted above, at the time he was arrested for Ross’s murder,

Cannon was on parole for the 1971 murder of Emanuel Lazar,

and had served only twelve years of his 100 to 200 year

sentence for that crime. Following his conviction for Ross’s

murder, in August 1984 Cannon was retroactively declared in

violation of his parole in the Lazar case, and his parole was

revoked as of his November 2, 1983 arrest date. In February

2003, the IPRB held a hearing at which the Board was advised

of the terms of Cannon’s plea agreement with the State. The

State did not oppose Cannon’s parole at that hearing. The IPRB

nonetheless refused to release Cannon on parole, and gave no

assurances that he would be released prior to July 2064. The

IPRB continued Cannon’s case for another parole hearing in

2006.
No. 12-1529 11

Unsatisfied with that result, in October 2003, Cannon

moved in post-conviction proceedings to vacate his plea,

contending that he had received ineffective assistance of

counsel because his lawyers had not investigated the effect of

the plea on the 1984 retroactive revocation of his parole. He

also contended that the State had failed to adhere to its side of

the plea bargain, and that the plea could not be considered

knowing, voluntary and intelligent under the circumstances.

In an April 2004 filing, the State agreed that Cannon had

received ineffective assistance when his lawyers failed to

investigate the effect of the plea on his parole, and agreed that

the plea should be vacated. The State conceded that it too

assumed that Cannon would be released in August 2003, but

now agreed that any guilty plea in the 1983 case would

support revocation of parole in the 1971 case. In order to honor

the understanding of the parties at the time of the plea, the

State therefore agreed to dismiss the substantive case against

Cannon. The State emphasized that it dismissed the Ross

murder charges solely to rectify the procedural problem

created when neither side anticipated the effect of the plea

agreement on Cannon’s parole status for the 1971 conviction.

The State continued to assert that Cannon was factually guilty

of the charges to which he pled in 2001. 

In June 2004, Cannon received a full parole revocation

hearing before the IPRB. The Board again concluded that

Cannon violated his parole in the 1971 case by committing the

crime of murder in 1983. The Board stated that it analyzed the

evidence without giving any consideration to Cannon’s

coerced statement to the Area 2 officers except for portions of

the statement that Cannon admitted in motions and at trial.
12 No. 12-1529

The Board first considered Cannon’s accountability using the

1983 grand jury testimony of Tyrone McChristian, the brother

of Andrew McChristian, as well as Cannon’s own sworn

testimony. In grand jury proceedings, Tyrone testified that 4

Cannon and McChristian were both “generals” in the El Rukn

street gang, that Ross had stolen drug money, that Cannon was

intent on carrying out McChristian’s plan to seek revenge on

Ross, and that Cannon retrieved a gun for McChristian and

then drove the car so that McChristian could shoot Ross. The

Board found that Cannon’s proximity to the murder and his

subsequent actions in aiding McChristian to dispose of Ross’s

body led to only one conclusion: that Cannon was accountable

for the murder of Ross, that Cannon voluntarily attached

himself to McChristian’s plan and that Cannon shared

McChristian’s intent. 

The Board then considered Cannon’s accountability based

solely on his own testimony, again excluding his coerced

statement except to the extent it was admitted by Cannon’s

othertestimony. According to Cannon’s own account of Ross’s

murder, on October 26, 1983, Cannon met Tyrone at a pool

hall. Tyrone told Cannon that McChristian wanted to meet him

at his girlfriend’s house. Tyrone drove Cannon to the house of

McChristian’s girlfriend, where McChristian and Ross were

waiting. McChristian told Cannon that he was meeting some

people and wanted Cannon to “watch his back.” Cannon,

McChristian and Ross then all took a ride in McChristian’s car.

With Cannon driving, McChristian and Ross argued about

We will refer to Tyrone McChristian as “Tyrone” and to Andrew

4

McChristian as “McChristian.”
No. 12-1529 13

drugs and a robbery. McChristian then brandished a revolver

and shot Ross twice in the head. A second round of gunfire

ensued. Either Cannon or McChristian retrieved a towel from

the trunk to contain the blood from the victim’s head. Cannon

and McChristian then drove to a prairie behind the Altgeld

Gardens housing complex and dumped Ross’s body in the

prairie. Based on this account, the IPRB rejected Cannon’s

claims that he did not see the gun, that he did not know that

McChristian, his friend of nineteen years, had a gun, and that

he did not know that McChristian was about to kill Ross. The

Board found Cannon’s actions following the murder to be

indicative of consciousness of guilt. In particular, Cannon tried

to keep Ross’s blood from staining the car, helped dispose of

the body, left the scene, failed to notify the police, and failed to

dissociate himself from McChristian during or after the crime.

The Board, therefore, again revoked Cannon’s parole.

Cannon then brought suit in state chancery court against

the IPRB, asking for immediate release or for a reversal of the

Board’s revocation decision andanewhearing before the IPRB.

The chancery court noted that, although Cannon had entered

a guilty plea in 2001, he had not admitted guilt, stipulating

only that the factual basis presented by the State was sufficient

to support a conviction. The chancery court ordered a new

hearing for Cannon before the IPRB, and directed the Board to

reconsider its revocation of Cannon’s parole without any

reliance on Cannon’s confession or on Tyrone’s grand jury

testimony, which Tyrone later asserted was also a product of

police coercion. On reconsideration, the IPRB released Cannon

on parole. By that point, Cannon had been in prison for

twenty-three years following his arrest for Ross’s murder. 
14 No. 12-1529

In the meantime, in 2005, after the State agreed to dismiss

the substantive case against him, Cannon filed this suit under

42 U.S.C. § 1983, seeking damages from the City of Chicago,

the officers involved in his torture, and other City employees

involved in covering up the torture. Cannon’s claims against 5

the City of Chicago and City employees (hereafter “the City

Defendants”) included (1) deprivation of the right to a fair trial;

(2) false arrest and false imprisonment; (3) torture and physical

abuse; (4) coercive interrogation; and (5) a Monell policy claim.

See Monell v. Dept of Social Servs. of City of New York, 436 U.S.

658 (1978). Cannon also asserted state law claims against these

same defendants, including (1) false arrest and imprisonment;

(2) malicious prosecution; (3) intentionalinfliction of emotional

distress; (4) conspiracy; (5) respondeat superior; and (6) indemnification. The district court concluded that the plain language of

the 1988 Stipulation that Cannon signed settling his original

claims against the City and the original defendants precluded

Cannon from bringing newclaims against the City Defendants.

The court then considered whether the 1988 Stipulation could

be invalidated because of the City Defendants’ fraudulent

concealment or under the doctrine of unconscionability. The

courtultimately held that neither doctrine could saveCannon’s

present lawsuit in light of the broad release he signed in

settling the 1986 case. Cannon v. Burge, 2006 WL 273544 (N.D.

Ill. Feb. 2, 2006) (“Cannon II”); Cannon v. Burge, 2007 WL

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

Cannon also sued Cook County, the Cook County State’s Attorney

5

Richard Devine, and the Cook County State’s Attorney’s office, but those

parties are not a part of this appeal. 
No. 12-1529 15

2011 WL 4361529 (N. D. Ill. Sept. 19, 2011) (“Cannon IV”).

Cannon appeals.

II.

On appeal, Cannon contends that the defendants should

not benefit from a settlement agreement that was secured by

fraud. He argues that the 1988 Stipulation could not bar claims

that did not yet exist and were not contemplated by the parties

at the time of the settlement. Cannon also asserts that the

defendants’ conduct placed him in such a grossly unequal

bargaining position that it would be unconscionable to hold

him to the terms of the 1988 Stipulation. Finally, he maintains

that the district court erred when it refused to allow him to

amend his complaint to add a civil RICO claim. We review the 6

district court’s grant of summary judgment de novo, examining

the record in the light most favorable to Cannon and construing all reasonable inferences from the evidence in his favor.

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

Illinois Dep’t of Human Servs., 697 F.3d 504, 509 (7th Cir. 2012);

Norman-Nunnery v. Madison Area Technical Coll., 625 F.3d 422,

The district court denied Cannon’s motion to amend his complaint to add 6

a civil RICO claim, citing our decision in Evans v. City of Chicago, 434 F.3d

916 (7th Cir. 2006), overruled on other grounds by Hill v. Tangherlini, 724 F.3d

965 (7th Cir. 2013). Cannon sought damages for lost employment opportunities during the time he was imprisoned. In Evans, we held that “foregone

earnings stemming from the lost opportunity to seek or gain employment

are, as a matter of law, insufficient to satisfy § 1964(c)'s injury to ‘business

or property’ requirement where they constitute nothing more than

pecuniary losses flowing from what is, at base, a personal injury.” 434 F.3d

at 930-31. Cannon concedes that Evans controls but asks us to revisit the

question. We decline to do so.
16 No. 12-1529

428 (7th Cir. 2010). Summary judgment is appropriate when

there are no genuine disputes of material fact and the movant

is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);

Naficy, 697 F.3d at 509.

A.

We begin with the 1988 Stipulation itself. Cannon and the

City Defendants agree that the 1988 Stipulation settling the

original suit is a contract governed by Illinois law. Cushing v.

Greyhound Lines, Inc., 991 N.E.2d 28, 92 (Ill. App. 1st Dist. 2013)

(a settlement agreement is considered a contract, and construction and enforcement of settlement agreements are governed

by principles of contract law). See also Haisma v. Edgar, 578

N.E.2d 163, 168 (Ill. App. 1st Dist. 1991) (same). A release

within a settlement agreement also is governed by contract

law. Farm Credit Bank of St. Louis v. Whitlock, 581 N.E.2d 664,

667 (Ill. 1991); Rakowski v. Lucente, 472 N.E.2d 791, 794 (Ill.

1984). The parties disagree about the scope of the release in the

1988 Stipulation, and whether we may consider extrinsic

evidence in determining the scope. “Where a written agreement is clear and explicit, a court must enforce the agreement

as written. Both the meaning of the instrument, and the

intention of the parties must be gathered from the face of the

documentwithout the assistance of parol evidence or any other

extrinsic aids.” Rakowski, 472 N.E.2d at 794. See also Whitlock,

581 N.E.2d at 667 (“[t]he intention of the parties to contract

must be determined from the instrument itself, and construction of the instrument where no ambiguity exists is a matter of

law”); Hurd v. Wildman, Harrold, Allen & Dixon, 707 N.E.2d 609,

613 (Ill. App. 1st Dist. 1999) (where a written agreement is clear
No. 12-1529 17

and explicit, a court must enforce the agreement as written

without the assistance of parol evidence or any extrinsic aids);

Haisma, 578 N.E.2d at 163 (where there is no ambiguity in the

language of a settlement agreement, the determination of the

intent of the parties is governed by the contract language

alone). In contrast, when a contract is ambiguous, construction

of the agreement is a question of fact, and the finder of fact

may consider parol evidence in determining the intent of the

parties. Whitlock, 581 N.E.2d at 667.

In order to determine the scope of the release, we must

therefore consider whether the contract is “clear and explicit”

or whether it is ambiguous. In Illinois, a contract is considered

ambiguous if it is capable of being understood in more than

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

v. Kraemer, 857 N.E.2d 691, 693 (Ill. App. 5th Dist. 2006).

Cannon, who was represented by counsel in the 1988 settlement, signed a Stipulation that purported to be “a final and

total settlement of all claims he has, or may have in the future,

arising either directly or indirectly out of the incident which

was the basis of this litigation, and that such finality is applicable to the remaining Defendant, the CITY OF CHICAGO, its

officers, agents and employees.” 

Cannon does not assert that any particular part of the

Stipulation is “capable of being understood in more than one

sense.” Whitlock, 581 N.E.2d at 667. Instead, he points to a

number of decisions in the appellate courts in Illinois that

appear to allow the consideration of parol evidence in determining the intention of the parties, even when there is no

ambiguity on the face of the contract. For example, in Carlile v.
18 No. 12-1529

Snap-on Tools, 648 N.E.2d 317 (Ill. App. 4th Dist. 1995), the

court commented:

It is sometimes said that a release is a contract, and

the same rules which apply to other contracts

(particularly the parol evidence rule) apply to

releases. It appears, however, that the courts are

much more careful in applying the parol evidence

rule to releases than they are to other contracts. The

intention of the parties controls the scope and effect

of a release, and this intent “is discerned from the

language used and the circumstances 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 Dist. 1990) (emphasis supplied in Carlile)). See also Carona, 561 N.E.2d at 242 (“It is well

established that the intention of the parties controls the scope

and effect of the release, and that this intent is discerned from

the language used and the circumstances of the transaction.”);

Chubb v. Amax Coal Co., 466 N.E.2d 369, 372 (Ill. App. 5th Dist.

1984) (the intention of the parties controls the scope and effect

of a release, and this intent is discerned from the language used

and the circumstances of the transaction); Whitehead v. Fleet

Towing Co., 442 N.E.2d 1362, 1365 (Ill. App. 5th Dist. 1982) (the

intention of the parties controls the scope and effect of the

release and such intent is discerned from the language used

and the circumstances of the transaction). 

So there are two seemingly inconsistent lines of cases in

Illinois regarding whether a court may consider parol evidence

in interpreting an unambiguous settlement agreement. The
No. 12-1529 19

inconsistency can be resolved, though, by following the

“circumstances of the transaction” language back to its source.

To do so, we must travel nearly 150 years, to a decision of the

Illinois Supreme Courtinterpreting a release that was procured

by fraud. See Parmelee v. Lawrence, 44 Ill. 405 (1867); 1867 WL

1574 (Ill. 1867). Parmelee addressed (and rejected) a strict

common law rule that “the full release of one of several joint

tortfeasors released all, even if the release contained an express

reservation of rights against the others.” Porter v. Ford Motor

Co., 449 N.E.2d 827, 829 (Ill. 1983) (interpreting Parmelee). In

Parmelee, Lawrence signed a release after he was first presented

with two other draft releases. With each of the earlier drafts,

Lawrence feared that the release of one obligor would impair

his claims against co-obligors. He therefore refused to sign

those drafts. He was then presented with a draft that expressly

purported to reserve his claims against co-obligors, and he was

led to believe it would have that effect. There was evidence

that the drafter of the document likely knew that the reservation would be trumped by the common law rule. In that

instance, where the document on its face unambiguously

reserved Lawrence’s claims against the co-obligors, the Illinois

Supreme Court refused to apply the strict common law rule

that releasing one obligor would operate to release all:

But a release, like every other written instrument,

must be so construed as to carry out the intention of

the parties. This intention is to be sought in the

language of the instrument itself when read in the

light of the circumstances which surrounded the

transaction. 
20 No. 12-1529

Parmelee, 44 Ill. 405; 1867 WL 1574 at *3. The court considered

the circumstances surrounding the signing of the release and

pronounced it “a dishonest scheme.” Parmelee, 44 Ill. 405; 1867

WL 1574, at *4. The court rejected older cases adhering to the

strict common law rule and found that “the weight of the

modern authorities is against these cases, and in favor of the

more reasonable rule, that where the release of one of several

obligors shows upon its face, and in connection with the

surrounding circumstances, that it was the intention of the

parties not to release the co-obligors, such intention, as in the

case of other written contracts, shall be carried out[.]” Parmelee,

44 Ill. 405, 1867 WL 5174, at *5. 

The Illinois Supreme Court had an opportunity to interpret

Parmelee more than one hundred years later. In Porter, a bank

representing the estate of the plaintiff’s husband settled a

negligence action against a driver who caused a crash that

resulted in his death. The bank, as administrator of the estate,

signed a settlement broadly releasing the driver, his insurer,

and any person or company liable “in his stead” from all

claims arising from the husband’s death. The plaintiff then

sought to sue Ford Motor Company, the manufacturer of the

Ford Pinto that her husband was driving at the time of his

death. Relying primarily on Parmelee, the plaintiff contended

that the 

court should have focused on the intent of the

parties in executing the release rather than looking

at the language of the document standing alone. The

intent of the parties ... was to release only [the

driver] and his insurer from liability. The prime

indicator of this intention ... is that at the time the
No. 12-1529 21

document was executed, the only defendant in the

lawsuit was [the driver] and a claim against Ford

had not even been contemplated by the plaintiff.

Porter, 449 N.E.2d at 829. The Illinois Supreme Court disagreed

with this broad reading of Parmelee and noted that:

The Parmelee holding does not require ... that a

release be construed as a release of only those

persons expressly named. Rather, it holds that an

unconditional release of one co-obligor releases all

unless a contrary intent appears from the face of the

instrument.

Porter, 449 N.E.2d at 830. Because the release contained no

express reservation of rights against other parties but instead

was a “full or unqualified release as to one indivisible injury

given to any of those concurring in its cause,” the release

served as a bar to the plaintiff’s claims against Ford Motor.

Porter, 449 N.E.2d at 830-31. This was so even though at the

time the release was signed, the plaintiff had not yet contemplated a claim against Ford. Porter, 449 N.E.2d at 829.

What does all of this mean for Cannon? Parmelee cannot

reasonably be read to uniformly allow the consideration of

parol evidence in interpreting an unambiguous release. In

reality, Parmelee chronicled an instance of fraud in the inducement. See Jordan v. Knafel, 880 N.E.2d 1061, 1069 (Ill. App. 1st

Dist. 2007) (fraud in the inducement of a contract is a defense

that renders the contract voidable at the election of the injured
22 No. 12-1529

party). In fact, the Parmelee court held the parties to the 7

unambiguous language of the release even though the common law rule held to the contrary. To hold otherwise would

have allowed the drafter of the document to fraudulently

induce Lawrence to sign a release that had the opposite effect

of its plain, unambiguous language. The Illinois courts of

appeal appear to have taken the “circumstances of the transaction” language from Parmelee out of context and applied it

broadly to allow the consideration of parol evidence in

construing the intent of the parties to an unambiguous release.

But the Illinois Supreme Court has embraced no such rule,

instead consistently holding that, whena contract isunambiguous on its face, the intent of the parties must be construed

without consideration of parol evidence. Whitlock, 581 N.E.2d

at 667; Rakowski, 472 N.E.2d at 794. Our role in interpreting a

question of state law is to predict how the highest court of the

state would answer the question. In re Crane, 742 F.3d 702, 707-

08 (7th Cir. 2013) (for a question of state law, our role is to

predict how the Illinois Supreme Court would decide the

question); Pippen v. NBCUniversal Media, LLC, 734 F.3d 610, 615

(7th Cir. 2013) (in diversity action, we must predict how the

state's highest court would answer the question if asked). In

this instance, we have no need to predict how the Illinois

Supreme Court would rule: the court has already spoken. We

As was the case in Parmelee, “the party seeking such relief must establish 7

that the representation was: (1) one of material fact; (2) made for the

purpose of inducing the other party to act; (3) known to be false by the

maker, or not actually believed by him on reasonable grounds to be true,

but reasonably believed to be true by the other party; and (4) was relied

upon by the other party to his detriment.” Jordan, 880 N.E.2d at 1069. 
No. 12-1529 23

may not consider parol evidence in construing the unambiguous terms of the release here. Whether Cannon was fraudulently induced to sign the 1988 Stipulation is a separate

question that we will consider below, but we must first

determine the terms of the unambiguous 1988 Stipulation from

its plain language.

The broad release that Cannon signed in 1988 included all

of the claims “arising either directly or indirectly out of the

incident which was the basis of this litigation[.]” R. 28-2, at 39.

The incident that served as the basis for Cannon’s 1983 pro se

complaint also supplied the basis for Cannon’s current claims.

All of the claims arise from Cannon’s torture by Byrne, Dignan

and Grunhard on November 2, 1983. That torture led to

Cannon’s purportedly false confession, which twice led to his

conviction for Ross’s murder. Cannon also agreed to a “final

and total settlement of all claims he has, or may have in the

future,” arising from the incident underlying the 1983 suit. That

language unambiguously includes claims that Cannon asserts

he did not contemplate until after the settlement, including

claims that he alleges did not accrue until after the settlement.

See Rakowski, 472 N.E.2d at 794-95 (giving effect to a settlement

that released any and all claims “on account of all injuries,

known and unknown, ... which have resulted or may in the

future develop from an accident which occurred”); Hurd, 707

N.E.2d at 613 (finding clear and unambiguous a release that

bars claims “whether known or unknown, or suspected to

exist” arising from the plaintiff’s partnership in the defendant’s

firm). 

Although Illinois courts construe more narrowly general

releases that are unlimited in scope, the release here is limited
24 No. 12-1529

to future claims that arise from the subject of the first law suit.

See Rakowski, 472 N.E.2d at 794. In Rakowski, the Illinois

Supreme Court held that a party was bound by a release “from

any and all claims ... of any kind or nature whatsoever, and

particularly on account of all injuries, known and unknown ...

which have resulted or may in the future develop from” a

particular accident. 472 N.E.2d at 794. The court rejected a

party’s position that he did not intend to release a claim for

contribution that did not yet exist at the time of the settlement

and was not specifically enumerated in the release. Instead, the

court declined to consider parol evidence of that party’s intent

and applied the unambiguous language of the release. Any

unilateral mistake about the effect of an unambiguous release

was not a sufficient ground to set aside the release. Rakowski,

472 N.E.2d at 794. Cannon attempts to carve out his claims for

wrongful conviction and maliciousprosecutionas separate and

distinct incidents not covered by the settlement. But this

ignores both the “arising from” language in the 1988 Stipulation and the reality that these claims did in fact exist at the time

he executed the 1988 Stipulation. That is, he had already been

wrongfully convicted as a result of what he asserts to be a

malicious prosecution. That he could not bring these claims

until his conviction was set aside is irrelevant to the clear

languageofthe 1988 Stipulation, which releases the defendants

from all claims “arising from” the initial incident. We therefore

agree with the district court that the release covers all of the

claims in Cannon’s current suit against the City Defendants. 

B.

Our conclusion that the release covers all of the claims in

Cannon’s current complaint is not the end of the matter. Once
No. 12-1529 25

a defendant establishes the existence of a release that is legal

and binding on its face, the burden shifts to the plaintiff to

prove it invalid by clear and convincing evidence. Hurd, 707

N.E.2d at 613. Cannon asserts that the City Defendants

engaged in fraud and a cover-up of the true facts that caused

him to settle on unfavorable terms. He relies largely on our

opinion in Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir.

1984), overruled on other grounds by Russ v. Watts, 414 F.3d 783

(7th Cir. 2005), for the proposition that a settlement does not

bar additional litigation when it is procured by fraud and a

cover-up so massive that the plaintiff was deprived of meaningful access to the courts. Cannon asserts that the record

contains evidence of fraud that is adequate to create a genuine

issue of material fact regarding whether he should be held to

the terms of the 1988 Stipulation. The City Defendants argue

that Cannon has failed to make out a claim for fraudulent

inducement or fraudulent concealment in the execution of the

1988 Stipulation, and that Bell is distinguishable. We will first

address whether Cannon raises a genuine issue of material fact

regarding fraud in the inducement, and then we will turn to

Bell.

1.

Fraud in the inducement of a contract is a defense that

renders the contract voidable at the election of the injured

party. Jordan, 880 N.E.2d at 1069. The elements of a claim for

fraudulent inducement are well-settled in Illinois:

Broadly speaking, for a misrepresentation to constitute fraud which invalidates a contract, it must be a

representation in the form of a statement of a mate-
26 No. 12-1529

rial fact, made for the purpose of inducing a party to

act; it must be false and known by the party making

it to be false, or not actually believed by him, on

reasonable grounds, to be true; and the party to

whom it is made must be ignorant of its falsity, must

reasonably believe it to be true, must act thereon to

his damage, and in so acting must rely on the truth

of the statement. 

Wilkinson v. Appleton, 190 N.E.2d 727, 729-30 (Ill. 1963). See also

Jordan, 880 N.E.2d at 1069. The problem for Cannon is immediately apparent. When he signed the 1988 Stipulation, he knew

that Byrne, Dignan and Grunhard were lying. He was, after all,

a witness to his own torture and he knew what had really

happened. When he agreed to settle the case, he could not have

reasonably believed their statements to be true, and could not

have reasonably relied on the truth of their statements in

signing the 1988 Stipulation. See Siegel Dev., LLC v. Peak Const.

LLC, 993 N.E.2d 1041, 1060 (Ill. App. 1st Dist. 2013) (as part of

its fraud claim, a plaintiff must show that its reliance on the

misrepresentation was justified; in other words, the reliance

must be reasonable); D.S.A. Fin. Corp. v. County of Cook, 801

N.E.2d 1075, 1081 (Ill. App. 1st Dist. 2003) (a person may not

enter into a transaction with his eyes closed to available

information and then charge that he has been deceived by

another). 

In determining whether Cannon reasonably relied on the

defendants’ lies, we must take into account all of the facts

which Cannon knew, as well as those facts that Cannon could

have learned through the exercise of ordinary prudence. Siegel
No. 12-1529 27

Dev., 993 N.E.2d at 1060. Cannon knew the officers were lying

when they denied torturing him but he asserts he did not know

about the broader torture scandal that implicated these same

officers. The record reveals that, at the time he was contemplating settlement, both Cannon and his lawyer suspected that the

officers had tortured others and Cannon had directed his

lawyer to further investigate both the officers and those other

incidents. But his attorney never asked any of the defendants

in the original suit or any of the extended list of defendants in

the current suit any questions about the officers’ torture of

other suspects. Cannon contends that any failure to pursue

additional discovery should not be held against him because

the officers who lied about torturing him surely would have

lied about torturing others. He is undoubtedly correct that

those officers would have lied again but there were many other

avenues for discovery that his lawyer could have employed

and failed to do so. In support of his claim of a cover-up by

City officials, Cannon cites, among other things, the Goldston

Report and the results of re-investigations conducted by OPS, 8 9

On September 28, 1990, OPS investigator Michael Goldston completed a

8

report that identified fifty victims of torture by officers in Area 2, dating

from May 1973 through October 1986. The Goldston Report concluded that

systematic abuse and torture was carried out at Area 2 and that command

officers at Area 2 were aware of the abuse and helped perpetuate it by

either actively participating in the abuse or by failing to stop it. R. 391-5, at

2-26. In November 1990, Gayle Shines, the Chief Administrator of OPS,

approved the GoldstonReport and forwarded it to Superintendent of Police

LeRoy Martin. R. 391-5, at 1. 

In 1993, OPS re-opened investigations into certain cases of torture in

9

(continued...)
28 No. 12-1529

all of which City officials attempted to conceal in litigation by

other plaintiffs. But all of this evidence came into existence after

Cannon settled his claims. The City’s attempt to conceal this

evidence also came after Cannon settled. Lawyers for other

plaintiffs vigorously pursued these leads and uncovered the

scandal. It is impossible to say whether additional discovery by

Lanphier on Cannon’s behalf would have uncovered the

broader police torture scandal that has now been brought to

light. But Cannon has failed to raise a genuine issue of material

fact regarding the reasonableness of his reliance on the officers’

false statements at the time he signed the 1988 Stipulation,

especially in light of his failure to seek additional information

in the original litigation.

2.

Cannon relies heavily on our decision in Bell to overcome

the deficiencies in his fraud-in-the-inducement claim. The

defendants contend that Bell is distinguishable and so we turn

to the facts of Bell. On February 2, 1958, Milwaukee police

officer Thomas Grady shot and killed Daniel Bell, a young

African-American man the officer had pulled over for a broken

tail-light. Grady and Louis Krause, another officer who had

participated in chasing Bell, immediately fabricated a story to

 (...continued) 9

which the OPS had previously concluded that the allegations of abuse were

“not sustained.” In a number of cases, investigators changed the recommended finding to “sustained,” including in Cannon’s case. No action was

taken on those recommendations until 1998, when Thomas Needham,

General Counsel to the Superintendent, instructed OPS to once again

classify all of the allegations as “not sustained.” R. 391-7, at 62.
No. 12-1529 29

justify what they knew was an unwarranted shooting. When

other officers arrived to investigate, Grady told them that he

stopped Bell’s car for a broken tail-light, and that Bell ran once

the car was stopped. Grady said that he believed Bell fit the

description given in a police bulletin of a man wanted for

armed robbery. Together with Krause, he told the investigators

that Bell yelled, “You won’t catch me. I’m a holdup man,” as

he ran. Grady planted a knife in Bell’s hand and told the

investigators that he shot at Bell as Bell fled. Grady later

changed the story, claiming that he fired at Bell after Bell

lunged at him with the knife. Bell’s family heard about the

shooting on the evening news. They went to the police station

and asked for an explanation. An officer repeated the story

given by Grady and Krause and presented the knife as evidence. Bell’s sister, who knew that Bell’s knife was at home,

disputed the claim and pointed out that Bell was left-handed

and the knife was recovered from his right hand. At that point,

the officer responded with racial epithets, and ejected the

family from the station with threats of arrest.

The subsequent internal investigationrevealed inconsistencies in the stories given by Grady and Krause. For example, the

officers had given several different accounts of the distance

between Grady and Bell when the shots were fired. And Grady

changed the story to include the detail of Bell lunging with the

knife. Rather than ascertain the truth, superior officers and the

district attorney told Grady and Krause to make their stories

consistent. An extensive cover-up followed. The officers

repeated their lies to journalists, investigators, and at the

coroner’s inquest into the death of Daniel Bell. At the inquest,

Grady amended the estimated distance from which he fired to
30 No. 12-1529

match the findings of the autopsy. The district attorney and the

deputy medical examiner facilitated a biased examination of

the witnesses. With no opportunity for cross-examination,

questions from Bell’s family were ignored. As a result, the

inquest jury returned a verdict that the killing was justifiable,

a finding that all but destroyed any chance of holding the

officers liable for civil damages. 

Bell’s family,nevertheless, did not believe the officers’ story

and his father, Dolphus Bell, brought an action in state court

against Grady and the City of Milwaukee for wrongful death

and indemnification, seeking damages in the amount of

$18,125, at that time the statutory maximum. Throughout the

litigation, the defendants continued to claim that Bell had

announced that he was a “hold-up man,” had lunged at Grady

with a knife, and that Grady shot him in self-defense. After a

mistrial, the case was reassigned to a second judge who urged

the parties to settle. After initially agreeing orally to a settlement of $1800, Dolphus Bell refused to sign the agreement and

refused to accept the City’s check.

Nearly twenty years after the shooting, Krause approached

the district attorney and admitted that he and Grady had lied

about the shooting. He told the prosecutor that Bell had not

lunged at Grady and that Grady had planted the knife in Bell’s

hand. The district attorney arranged a wiretap, and in conversations with Krause, Grady admitted on tape that he planted

the knife and that the shooting was accidental. Eventually,

Grady pled guilty to homicide by reckless conduct and perjury. 

In 1979, Bell’s siblings (on behalf of themselves and their

now-deceased father) filed suit in federal court against Grady,
No. 12-1529 31

the City of Milwaukee, the police chief, the detective who

investigated the shooting, the county and the office of the

District Attorney. In addition to civil rights claims for excessive

force and deprivation of life without due process, the siblings

also alleged that the defendants conspired to conceal the facts

of the shooting, that the conspiracy interfered with their ability

to bring their claims against Grady and the City of Milwaukee,

that the conspiracy deprived them of due process and equal

protection, and that these deprivations were compensable

under sections 1981, 1983, 1985 and 1986. A jury found that

Grady violated Bell’s constitutional rights by shooting and

killing him and also found that Grady, Krause and other City

defendants conspired to cover up the facts of the shooting and

killing of Daniel Bell. The jury concluded that Bell’s race was

an operative factor in the conspiracy. 

On appeal, the Bell defendants raised a number of claims

but only one is relevant to Cannon’s appeal: the defendants’

argument that the Bell family’s claims were precluded by the

earlier settlement agreement and by res judicata. Prior to the

trial, the district court had rejected these defenses. The district

court concluded that Dolphus Bell had entered into a binding

settlement agreement with Grady and the City of Milwaukee

but ruled that res judicata could not be applied when the record

was replete with allegations of fraud, concealment, and a

broad-based cover-up on the part of the defendants. The

district court re-affirmed that ruling after the verdict:

[T]he fraud in this case is sufficient to nullify an

otherwise valid settlement and dismissal. This is not

a case in which the defendant simply lied and

thereby made the plaintiff's proof of his case diffi-
32 No. 12-1529

cult. Rather, this is a case of massive conspiracy by

high ranking Milwaukee officials to prevent the

disclosure of the true facts of the shooting of Daniel

Bell. Given the monopoly on force held by the

government, this conspiracy prevented the proper

functioning of the judicial system.

Bell, 746 F.2d at 1227 (quoting Bell v. City of Milwaukee, 536

F.Supp. 462, 465-66 (D.C. Wis. 1982) (hereafter Bell II)). 

On appeal, we agreed that res judicata should not apply.

Bell, 746 F.2d at 1227. Ordinarily, we are obligated to afford full

faith and credit to judicial proceedings in state courts of

competent jurisdiction, and we apply the concepts of res

judicata and collateral estoppel as they would be employed by

the courts of the state in which the prior judgment was

rendered. In Bell’s case, the prior judgment was rendered by a

Wisconsin state court, and under Wisconsin law, “a state court

judgment has no binding effect in subsequent litigation where

the plaintiff proposes to rely on evidence that he or she was

unable or failed to present in the first action on account of the

defendant's fraud or concealment.” Bell 746 F.2d at 1227 (citing

Hammes v. First Nat’l Bank & Trust Co. of Racine, 255 N.W.2d

555, 559-60 (Wis. 1977)). We agreed with the district court that

the earlier settlement did not bar the subsequent action under

the rationale of Hammes. Moreover, we held that the policy in

Hammes applied “notwithstanding defendants' argument that

the Bell family and their attorneys knew from the very beginning that the police must have been lying and covering up the

true circumstances of the shooting.” Bell, 746 F.2d at 1227.
No. 12-1529 33

Although the evidence suggested that Bell’s family knew from

the start that the police had lied,

the Bell family, with their beliefs alone, were deprived of a fair opportunity to seek redress by virtue

of defendants' fraudulent concealment of facts

crucial to the fair disposition of the dispute. Not

only did Grady and others cover up what actually

happened the night of the shooting, but, according

to the testimony of Sylvia White Bell, when some

members of the Bell family went to the police that

night for an explanation, they were told “niggers get

out of here,” or be jailed. At the coroner's inquest,

conducted as a non-adversarial proceeding without

opportunity for cross-examination, Bell family

questions were largely ignored.

Bell, 746 F.2d at 1227-28. 

We noted that in the original action brought by Dolphus

Bell, the defendants continued to rely on Grady’s false representations made at the time of the shooting. We rejected as

irrelevant the defendants’ contention that Dolphus Bell failed

to seek discovery in the original action. We reasoned that, even

if the elder Bell had sought discovery, the defendants had not

established that he would have been able to obtain sufficient

documentary and testimonial evidence to overcome the

inquest finding of justifiable homicide, a finding that was

facilitated with perjured testimony and a biased investigation.

The cover-up implicated high-ranking members of the police

department, as well as the district attorney’s office and even

the medical examiner. Not until Krause came forward twenty
34 No. 12-1529

years later and revealed the truth could the Bell family fairly

present their case:

Thus regardless of whether the settlement was valid

when allegedly entered into, it cannot be used to

preclude future claims and in so doing redound to

the benefit of defendants.

Bell, 746 F.2d at 1228. Finally, we noted that even if the original

settlement were given preclusive effect, Bell’s siblings would

still have a civil rights claim for damages arising from the

defendants’ acts of concealment continuing past the prior

action. Bell, 746 F.2d at 1228.

3.

We have not had many occasions to apply the reasoning of

Bell in the thirty years since its issuance, and that is as it should

be. Extraordinary circumstances called for an extraordinary

resolution. The district court had two opportunities to consider

whether Bell could relieve Cannon of the preclusive effect of

the 1988 Stipulation: first on the defendants’ motion to dismiss,

and later on the defendants’ motion for summary judgment.At

the motion to dismiss stage, the district court first concluded

(as have we) that the broad language of the release covered all

of the claims that Cannon now raises. But the court also found

that Cannon had alleged sufficient facts in support of claims of

fraud and unconscionability to overcome the preclusive effect

of the earlier settlement. The court relied in part on Bell in

reaching that conclusion. At the summary judgment stage, the

court reversed course and found that Cannon’s situation was

distinguishable from Bell’s because Cannon had first-hand

knowledge of his torture and abuse and was thus aware from
No. 12-1529 35

the beginning that he had a cause of action against the officers.

In particular, the district court found determinative that

Cannon knew before he signed the 1988 Stipulation that he had

been tortured, and he suspected that Area 2 officers had

tortured others. Cannon’s criminal defense lawyer was aware

of another complaint against Area 2 officers, and Cannon went

so far as to direct his civil attorney to look into the arrest

records of the officers involved to determine how many of

their interrogations ended in confessions or charges of torture.

The district court found that the officers’ denial of Cannon’s

allegations did not constitute fraud, and that Cannon had

failed to produce any evidence supporting his claim that the

City itself had participated in a cover-up prior to the settlement. Bell, on the other hand, was killed by the officers, and

their concealment of the facts prevented Bell’s relatives from

pursuing his constitutional claims. In other words, the district

court concluded, the officers’ concealment of the facts prevented Bell’s family from realizing they had a cause of action

in the first place. 

On appeal, Cannon asserts that hisknowledge of his torture

does not meaningfully distinguish his case from that of Bell.

The City Defendants engaged in a decades-long cover-up that

deprived him of a fair opportunity to seek meaningful redress

in the courts, he contends, and a straight-forward application

of Bell bars the defendants from relying on the 1988 Stipulation. The City Defendants continue to assert that Cannon knew

he had been tortured and thus was in full possession of the

relevant facts giving rise to his civil rights claims, unlike the

Bell family, who had “their beliefs alone” to aid them in

uncovering the truth. The City Defendants dismiss as irrele-
36 No. 12-1529

vant Cannon’s claim that he was in no position to prove his

claims of abuse because he was in prison for murder as a result

of the false confession he gave under the officers’ torture.

According to the defendants, Cannon had credibility problems

far beyond his conviction in Ross’s murder, and the officers’

denial of their conduct could not constitute fraud in any case

because Cannon knew the truth and was not relying on the

officers’ assertions when he signed the 1988 Stipulation. Nor

could there have been any fraud by the City itself, the defendants argue, because Cannon did not assert a Monell claim in

his initial lawsuit and never sought discovery or information

from the City. Because Cannon did not ask the City for

information about other instances of torture, he cannot

complain now that the City concealed the information, according to the defendants.

We agree with the district court that Bell is distinguishable,

and we look to the two cases in which we have had an opportunity to apply Bell to demonstrate the differences. We note,

though, that neither of these cases involved a settlement

followed by a second attempt at litigation. Rather, both

addressed free-standing claims of denial of access to the courts.

Nevertheless, these two cases aid our understanding of Bell.

The “cornerstone of our decision in Bell was that the conspiracy

had prevented a full and open disclosure of facts crucial to the

cause of action, rendering hollowtheplaintiffs' right of access.”

Vasquez v. Hernandez, 60 F.3d 325, 329 (7th Cir. 1995). In

Vasquez, a woman was injured by a stray bullet fired by an offduty, drunken Cicero police officer. On-duty Cicero officers

who investigated the shooting did nothing more than retrieve

the bullets that landed in Vasquez’s home and determine that
No. 12-1529 37

the off-duty officer firing the shots was drunk. They then took

no action on the evidence for several months. An independent

investigation conducted by state, county and federal officials

concluded that a group of off-duty Cicero officers attending a

Super Bowl party had set up a target in an officer’s residential

backyard, and proceeded to fire multiple shots. Some of those

shots ended up in Vasquez’s home, including the bullet that

injured her. The officers were reprimanded and the results of

the investigation were provided to Vasquez.

Vasquez then sued both the off-duty officers who fired the

shots and the original investigating officers from Cicero. She

alleged that the Cicero officers conspired to cover up and

impede the investigation, and she sought damages under

section 1983 for deprivation of the constitutional right to seek

judicial relief for her injuries, relying on Bell. We noted that

“the right of individuals to pursue legal redress for claims

which have a reasonable basis in law and fact is protected by

the First and Fourteenth Amendments.” Vasquez, 60 F.3d at

328. A corollary of this right is that efforts by state actors to

impede an individual's access to courts may provide the basis

for a constitutional claim under section 1983. Citing Bell and

Bounds v. Smith, 430 U.S. 817, 822 (1977), we reasoned that

judicial access must be adequate, effective, and meaningful,

and “therefore, when police officers conceal or obscure

important facts about a crime from its victims rendering

hollow the right to seek redress, constitutional rights are

undoubtedly abridged.” Vasquez, 60 F.3d at 328.

We distinguished Bell, however, because the cover-upfailed

and there were no allegations that the plaintiffs were pre-
38 No. 12-1529

vented from pursuing a tort action in state court or that the

value of such an action had been reduced by the cover-up.

Although the Vasquezes were delayed for approximately six

months from learning the facts in support of their claims,

ultimately they suffered no prejudice and in fact were able to

use the information discovered during the multi-jurisdictional

investigation into the circumstances of their injury and the

ensuing cover-up by local police officers. In contrast, Bell’s

family was delayed from seeking justice for nearly twenty

years and suffered prejudice that was “extraordinary and

extreme.” Vasquez, 60 F.3d at 329.

Similarly, in Thompson v. Boggs, 33 F.3d 847 (7th Cir. 1994),

we found Bell distinguishable from the case of a man who was

injured by police officers during his arrest. Boggs was a police

officer who attempted to pull Thompson over for driving his

motorcycle with a suspended license. Thompson led Boggs on

a high-speed chase that ended when Thompson collided with

another squad car and was thrown to the pavement. Boggs

then restrained Thompson on the ground by placing his leg

across Thompson’s back in order to handcuff him. Thompson

later learned he had suffered a compression fracture of a

vertebrae in his lower back. He sued Boggs, claiming, among

other things, that the officer denied him his First Amendment

right of access to the courts when he failed to reveal in his

police report that he had used excessive force in arresting

Thompson. 33 F.3d at 849-50. In particular, he complained that

Boggs excluded from the report that Boggs lifted him up from

the pavement, threw him back on the pavement onto his

stomach, and then jumped on his back with a large amount of

force. Thompson, 33 F.3d at 852.
No. 12-1529 39

We concluded that Thompson’s case was distinguishable

from Bell’s in several important respects. Most significantly,

Thompson was not deprived of meaningful access to the courts

“because he was personally involved in the incident and thus

had firsthand knowledge of all the facts and circumstances

surrounding his arrest.” 33 F.3d at 852. Thompson knew that

an officer landed a blow to his back during the arrest, and was

able to secure two independent witnesses to the events.

“Finally, the facts known to Thompson concerning the arrest

were sufficient to enable him to promptly file the instant

lawsuit unlike Bell, where the true facts were concealed

thereby denying [Bell’s family]the opportunity to file a lawsuit

until some twenty years after the fact.” 33 F.3d at 852-53.

We note again that neither Vasquez nor Thompson addressed

a settlement followed by a subsequent lawsuit involving the

same facts. Both involved straight-forward claims of denial of

meaningful access to the courts. In each case, we ultimately

distinguished Bell because the plaintiffs were in fact able to file

their claims in a timely manner, and knew the relevant facts of

their claims at the time the claims arose (as was the case in

Thompson) or soon thereafter (as occurred in Vasquez). Similarly, Cannon knew the facts that gave rise to his claims at the

time the claims arose. Like Thompson, he knew first-hand that

he had been abused by the officers, that he had falsely confessed and that his false confession had contributed to his

conviction. Like Thompson, he knew that the officers were

lying or omitting relevant facts from their later accounts of

their actions. Like Thompson, the facts known to Cannon were

sufficient to enable him to promptly file his lawsuit. Cannon’s

case, in other words, presented a typical he-said/they-said
40 No. 12-1529

controversy; in Bell’s case, only the officers’ side of the story

existed.

Moreover, in Bell’s case, there was an immediate, top-down

cover-up of the facts, with higher ranking officers and the

district attorney directing the wrong-doers to synchronize their

stories. When seeking information about the shooting, Bell’s

family was sent away from the police station with race-based

threats to leave or face arrest. The inquest was conducted in a

biased fashion and as a non-adversarial proceeding in which

the questions of the Bell family were ignored. The inquest’s

conclusion that the shooting was justified presented a significant road-block to the Bell family’s civil suit. In contrast, at the

time that Cannon settled his case and signed the 1988 Stipulation, so far as the record reveals, there was not yet a cover-up

of Cannon’s case by higher ranking officials. Cannon has no

evidence that the defendants actively discouraged him from

seeking discovery or learning the truth, as happened to Bell’s

family when they approached the police for an explanation of

Daniel’s death. Indeed, Cannon suspected that othershadbeen

tortured and he was aware of public reports of some incidents

prior to the settlement. Almost certainly, the officers directly

involved in Cannon’s torture lied in their depositions and to

OPS investigators. But Cannon has presented no evidence that

the City knew the officers were lying during the first OPS

investigation or that the City thwarted Cannon’s efforts to

obtain discovery or learn the facts of his torture. In fact,

Cannon’s lawyer did not seek discovery from the City regarding otherinstances of torture prior to advising Cannon to settle

the case, and so the City had no opportunity to influence

Cannon’s decision by failing todisclose this information. As for
No. 12-1529 41

the officers’ conduct in lying during their depositions, as we

explained above, Cannon knew the officers were lying and

knew all of the relevant facts giving rise to his claims; he faced

a typical credibility contest. Bell’s family suspected but did not

know what happened to Daniel Bell because Daniel was not

there to supply a contrary version of events.

Others who were abused by Area 2 officers pursued their

claims with more vigor than Cannon and eventually uncovered the broader police torture scandal involving Jon Burge,

the officers who worked under him, and the police officials

who looked the other way and sometimes actively concealed

what they knew about the torture. But at the time Cannon

signed the 1988 Stipulation releasing the City and all of its

employees from all present and future claims arising from his

torture, Cannon was not relying on any false information

provided by the City Defendants on the broader torture

scandal because he had not sought discovery from the City or

the individual defendantsonany otherincidents involving any

other arrestees. Although he now has evidence suggesting that

the City behaved deplorably in other litigation after Cannon

settled his case, that after-the-fact behavior cannot be said to

have induced Cannon to settle his case. 

Cannon essentially claims that he would not have settled

his case if he had realized that better proof would be available

in the future. If he had known that the officers were abusing

others, he could have used that information to bolster his own

credibility, which had been seriously damaged by his false

confession and conviction for the murder of Darrin Ross. We

pause for a moment to address the disingenuousness of this

argument. First, Lanphier, Cannon’s lawyer in the civil case,
42 No. 12-1529

advised him to settle in 1988 not because of credibility problems created by his conviction for Ross’s murder but because

of credibility issues created by Cannon’s first murder conviction, the one for which he was on parole when he became

embroiled in Ross’s murder. Lanphier believed that he could

have evidence of the second murder conviction excluded at the

civil trial. R. 391-7, at 2. Lanphier advised Cannon to settle

because the case boiled down to a question of witness credibility and Cannon’s first murder conviction made it highly

unlikely that a jury would accept Cannon’s version of the facts

over that of the defendants. Cannon’s complaint that he

litigated under the burdensome weight of his false conviction

for Ross’s murder rings hollow in light of his lawyer’s actual

advice at the time of the settlement. Second, Cannon in fact

believed that the officers had abused other suspects and had

asked his lawyer to pursue discovery about other abuse at

Area 2. He settled his case knowing that this evidence—this

better proof—might exist, and knowing that his lawyer had

failed to pursue it. R. 363-17, at 2 (letter from Cannon to

Lanphier accepting the settlement). Cannon took his lawyer to

task for not believing that Cannon had been tortured, and for

being unwilling “to fight like hell to prove that they did do it.”

R. 363-17, at 2. The larger problem with Cannon’s regret over

settling the case is that, unlike the family of Daniel Bell,

Cannon knew all of the relevant facts at the time he settled; to

the extent he did not know the facts regarding the officers’

torture of others, he was well aware that his lawyer opted not

to pursue discovery of those facts. Actions taken to conceal the

police torture scandal after the settlement, abhorrent though

they were, could not and did not induce Cannon to settle.
No. 12-1529 43

Finally, we note that Bell is distinguishable in a few additional respects. We commented in Bell that, even if the settlement reached in the first case brought by Dolphus Bell were

given preclusive effect, much of the second suit would not be

barred. 746 F.2d at 1228. The settlement reached by Dolphus

Bell did not specifically prohibit future litigation for acts of

concealment that continued past the prior action. Cannon’s

settlement with the City did bar future lawsuits arising from

the same incident that was the subject of the first lawsuit.

Moreover, Bell’s siblings were not parties to the first lawsuit

and the defendants failed to establish that collateral estoppel

would preclude their claims. Cannon, in contrast, was the

plaintiff in both suits. In the end, Bell simply does not apply,

and there is no way to relieve Cannon from the preclusive

effect of the 1988 Stipulation and settlement.

4.

The City Defendants have consistently argued that this

litigation is precluded by the 1988 Stipulation, a settlement

agreement that they have asked us to analyze using principles

of Illinois contract law. By now, the reader may be wondering

why we have been mired in Illinois contract law when the

straight-forward principles of res judicata would seem to apply.

“Under res judicata, a final judgment on the merits bars further

claims by parties or their privies based on the same cause of

action.” Montana v. United States, 440 U.S. 147, 153 (1979). Here,

the district court dismissed with prejudice the first suit against

the three officers and entered judgment against the City of

Chicago, incorporating by reference the 1988 Stipulation. That

constitutes a final judgment on the merits. See Lawlor v. National
44 No. 12-1529

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

53 F.3d 866, 871 (7th Cir. 1995). A party asserting res judicata or

claim preclusion must establish: “(1) identity of the claim,

(2) identity of parties, which includes those in ‘privity’ with the

original parties, and (3) a final judgment on the merits.” Ross

ex rel. Ross v. Board of Educ. of Twp. High Sch. Dist. 211, 486 F.3d

279, 283 (7th Cir. 2007). Because the earlier judgment was

rendered by a federal court, the federal law of claim preclusion

applies here. Ross, 486 F.3d at 283. “In order to decide whether

the two cases involve the same claim, we ask whether they

arise out of the same transaction. If they did, whether or not

they were actually raised in the earlier lawsuit, they may not

be asserted in the second or subsequent proceeding.” Ross, 486

F.3d at 283. 

The elements required for claim preclusion would appear

to be present here. After all, Cannon filed his 1986 suit in

federal court, asserting claims arising from his torture by three

police officers. The settlement (which included the City and all

of its employees) that ensued was enshrined in a final judgment by the district court, a judgment that incorporated the

1988 Stipulation by reference. Arguably, the claims in both

suits arose from the same operative facts, the parties were

identical, and there was a final judgment on the merits. Bell

itself provided an exception to the normal operation of res

judicata. Yet the City has not argued the preclusive effect of res

judicata, instead confining its argument to Illinois contract

principles and the 1988 Stipulation. Because res judicata is a

defense that can be forfeited if not pled, we see no reason to

further address the issue. Arrow Gear Co. v. Downers Grove

Sanitary Dist., 629 F.3d 633, 638 (7th Cir. 2010). We mention it
No. 12-1529 45

only because it seems odd to ignore an issue that is otherwise

so obviously implicated by the procedural stance of the case.

The City Defendants have confined their defense of the case to

principles of Illinois contract law and we have therefore limited

our analysis to that defense. 

III.

Cannon next contends that it would be unconscionable to

hold him to the terms of the 1988 Stipulation because it is the

product of unequal bargaining positions secured by the

defendants’ fraud. Cannon asserts that he “negotiated under

the impossible burden of a conviction for murder,” namely his

conviction for the murder of Darrin Ross. The defendants, on

the other hand, bargained for the settlement from the false

position of blameless public servants. According to Cannon,

without this handicap, he would have obtained a settlement

comparable to those obtained by other plaintiffs who suffered

at the hands of Burge and his officers. 

The determination of whether a contract or a portion of a

contract is unconscionable is a question of law, which we

review de novo. Kinkel v. Cingular Wireless LLC, 857 N.E.2d 250,

264 (Ill. 2006). Cannon claims both procedural and substantive

unconscionability in the 1988 Stipulation. Procedural

unconscionability consists of some impropriety during the

process of forming the contract depriving a party of meaningful choice. Phoenix Ins. Co. v. Rosen, 949 N.E.2d 639, 647 (Ill.

2011); Kinkel, 857 N.E.2d at 264. Substantive unconscionability

concerns the actual terms of the contract and examines the

relative fairness of the obligations assumed, asking whether the

terms are so one-sided as to oppress or unfairly surprise an
46 No. 12-1529

innocent party. Phoenix 949 N.E.2d at 647; Kinkel, 857 N.E.2d at

267.

The facts underlying Cannon’s claims of procedural

unconscionability are identical to those supporting his claims

of fraud in the inducement. That is, he relies on the fact that the

officers lied repeatedly, to the OPS, to the trial court, and in

their depositions, and in doing so secured his wrongful

conviction for murder. That conviction, he argues, placed him

in a severely disadvantaged bargaining position. The settlement, he contends, was secured by “years of perjury, obstruction, suppression of evidence, and deceit.” At the same time, it

is substantively unconscionable, Cannon asserts, because the

terms are oppressively one-sided. 

We cannot say that Cannon was deprived by the City

Defendants of a meaningful choice at the time he settled the

case. The factors that we consider in assessing procedural

unconscionability “include the manner in which the contract

was entered into, whether each party had a reasonable opportunity to understand the terms of the contract, and whether

important terms were hidden in a maze of fine print.” Frank's

Maint. & Eng’g, Inc. v. C. A. Roberts Co., 408 N.E.2d 403, 410 (Ill.

App. 1st Dist. 1980). See also Phoenix, 949 N.E.2d at 647; Kinkel,

857 N.E.2d at 264. First, to the extent that Cannon was operating under the burden of a conviction for murder, he brought

that burden on himself with his 1971 conviction in the Lazar

murder. Lanphier advised Cannon that he would seek to

exclude from the civil trial Cannon’s conviction for Ross’s

murder but Lanphier also advised Cannon that the earlier

conviction would be admissible. The first murder conviction

would seriously damage Cannon’s credibility, as would
No. 12-1529 47

Cannon’s then-membership in the El Rukn street gang.

Whether Lanphier was correct about the admissibility (or

inadmissibility) of Cannon’s murder convictions is irrelevant;

at the time Cannon decided to settle, he had only the advice of

his lawyer to guide his decision, and that advice excluded the

burden of the second conviction. Moreover, Illinois courts have

been reluctant to hold that inequality in bargaining power

alone suffices to invalidate an otherwise enforceable agreement. Melena v. Anheuser-Busch, Inc., 847 N.E.2d 99, 110 (Ill.

2006). 

Cannon was, of course, represented by counsel when he

entered into the 1988 Stipulation, another factor that weighs

against a finding of procedural unconscionability. Fagala v.

Sanders, 488 N.E.2d 1093, 1096 (Ill. App. 5th Dist. 1986). Cannon’s letter to his lawyer accepting the settlement reveals that

Cannon was deeply dissatisfied with his lawyer but also that

he understood what was at stake in settling his case. R. 363-17,

at 2. At his deposition, Cannon confirmed that he knew the

settlement would end his lawsuit, that no one forced him or

threatened him to settle, and that he knew he could take the

case to trial. R. 363-11, at 550:5-8; 552:9-553:5. 

Moreover, the “years of perjury, obstruction, suppression

of evidence, and deceit” occurred largely after Cannon settled

his case. True, the officers most directly involved in the torture

lied for many years prior to the 1988 settlement, throughout

Cannon’s criminal and civil proceedings. That would have led

to a typical credibility contest in court, and that is not a reason

for vacating a settlement agreement. As for the actions of City

employees other than the abusive officers, Cannon’s lawyer

did not question the City Defendants about the torture of
48 No. 12-1529

persons other than Cannon himself. Having never asked for

the information about the torture of others, Cannon may not

now claim that the settlement process was marred by a lack of

information about the torture of others. What the officers did

to Cannon was unconscionable; the formation of the settlement

agreement was not. 

As for substantiveunconscionability, the whole of Cannon’s

argument appears to be that plaintiffs who settled with the

City after the Burge scandal came to light received far more

generous settlements (in some cases, millions of dollars), and

it would be unconscionable to hold Cannon to the original

$3000 settlement. The City Defendants point out that Cannon’s

original complaint sought $45,000, and that $3000 is not

unconscionable in light of Cannon’s “own valuation of his

claim at the time of the prior settlement, his self-induced

credibility problems, his admitted complicity in Ross’smurder,

and the public policy of finality.” 

Illinois law does not support Cannon’s claim for substantive unconscionability. Although the unconscionability

determination is not restricted to the facts and circumstances

in existence at the time the contract was entered into, Cannon

was fully aware of the extent of his injury at the time he settled.

See Razor v. Hyundai Motor America, 854 N.E.2d 607, 621 (Ill.

2006) (courts may consider matters which become known only

subsequent to the drafting of the contract—i.e., the type of

injuries suffered as a result of breach—in assessing the

unconscionability calculus). He did not know that the officers

had assaulted others, information that certainly would have

bolstered his credibility and probably his recovery, but his

lawyer did not seek that information. In Fagala, the court
No. 12-1529 49

rejected a claim that a plaintiff could avoid a prior settlement

by asserting that others in similar circumstances were paid

more. Fagala, 488 N.E.2d at 1095-96. The court noted that the

disparitybetween the settlements may have been warrantedby

the difference in the claims against those parties. Fagala, 488

N.E.2d at 1096. Other than asserting that the other plaintiffs

were also tortured by some of the same officers and received

larger settlements, Cannon makes no attempt to demonstrate

similarities between the settlement circumstances of other

plaintiffs and himself. Without knowing what specific factors

led to those settlements, we cannot say that it was unconscionable for Cannon to receive significantly less. “Public policy in

Illinois favors settlements and dictates that, absent fraud or

duress, settlements should be final.” Pritchett v. Asbestos Claims

Mgmt. Corp., 773 N.E.2d 1277, 1285 (Ill. App. 5th Dist 2002). See

also Carlile, 648 N.E.2d at 321 (“Public policy favors the

settlement of claims, and it is important that claims, once fairly

resolved, not be resurrected”). Again, the fraud exception in

these public policy statements refers to fraud in the inducement of the settlement, and Cannon cannot demonstrate that

he reasonably relied on misstatements by the City Defendants

in executing the 1988 Stipulation. When he settled his claims,

he knew for a fact that the officers were lying. He even knew

that his lawyer was not pursuing his claims to his satisfaction

and that there might have been better evidence to support his

claim. He settled anyway. His settlement was not unconscionable and is therefore final.
50 No. 12-1529

IV.

This case casts a pall of shame over the City of Chicago: on

the police officers who abused the position of power entrusted

to them, on the initial trial judge who was later imprisoned for

accepting bribes to fix murder cases, on City officials who

turned a blind eye to (and in some instances actively concealed) the claims of scores of African-American men that they

were being bizarrely and horrifically abused at Area 2, and last

but not least on Cannon himself, who was a convicted murderer out on parole when, by his own admission, he drove a

car for his fellow El Rukn general as a murder was committed

in the back seat, and then helped dispose of the body and

conceal the crime. It is difficult to conceive of a just outcome

given the appalling actions by almost everyone associated with

these events but the law regarding the finality of settlements

governs the result: Cannon brought his suit against those who

abused him and settled it knowing full well that those defendants were lying. He has no evidence that, at the time he

decided to settle, the City knew about and purposefully

concealed a broader scandal in order to induce him to settle.

He signed a broad release precluding him from bringing

further claims arising from the same set of facts against any of

the City Defendants. Final judgments are final for a reason.

Cannon failed to raise a genuine issue of material fact on any

theory that would relieve him of the preclusive effect of the

first judgment. The judgment of the district court is therefore 

AFFIRMED.