Wainer Sousa Ancheta v. Fred Jones, et. al.

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 16, 2025*
Decided January 21, 2025
Before
DIANE S. SYKES, Chief Judge
MICHAEL B. BRENNAN, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
No. 23-2546
WAINER SOUSA ANCHETA,
Plaintiff-Appellant,
v.
FRED JONES, et. al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Northern District of
Illinois, Western Division.
No. 21 CV 50095
Philip G. Reinhard,
Judge.
O R D E R
Wainer Sousa Ancheta, who was shot six times by local police officers before he
was arrested, sued the officers for using excessive force in violation of his Fourth
Amendment rights. See 42 U.S.C. § 1983. The district judge entered summary judgment
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 23-2546 Page 2
for the officers, determining that no reasonable jury could find that the officers acted
unreasonably in shooting at Ancheta. We affirm.
We recount the facts in the light most favorable to Ancheta, the party opposing
summary judgment. Moore v. W. Ill. Corr. Ctr., 89 F.4th 582, 590 (7th Cir. 2023). In
October 2018, officers with the Winnebago County, Illinois, Sheriff’s Department
prepared to arrest Ancheta, whom they suspected of trafficking drugs. The officers
were briefed on Ancheta’s background, including his history of gang affiliation and
firearm possession. A surveillance team in an unmarked SUV staked out a home where
they believed Ancheta was staying, hoping to arrest him if he emerged. Ancheta
eventually left the home and stepped inside a white sedan that whisked him away. The
officers tailed the sedan, calling for backup on the way. When the sedan pulled up to
the center pump at a gas station, five police cars—including the unmarked SUV—
converged at the scene and boxed in the sedan. Officer Jacob Marino, dressed in plain
clothes, sprung out of the back seat of the SUV and drew his weapon. Almost
simultaneously, a marked police car behind the sedan turned on its emergency flashers.
Ancheta, who had recently been shot multiple times by gang members, believed
he was being ambushed. Though Marino testified that he shouted “Police. Police.
Hands up,” Ancheta denies that he heard those words, adding that nothing about
Marino’s clothes or car identified him as an officer. Within moments of seeing Marino,
Ancheta drew his own weapon and fired it in the air (Marino says Ancheta fired at
him), and Marino fired back. Other officers on the scene testified that they heard
Marino yell, “Gun!” or saw Marino react to Ancheta’s weapon, and so they too fired at
Ancheta. Ancheta was hit six times. The shooting is captured on video from two
vantage points—the gas station and a dash camera from the marked SUV that pulled up
behind the white sedan. (The details, however, are difficult to make out, as Ancheta is
barely visible inside the car, and the timing and direction of his fire is unclear.)
Ancheta brought his suit under 42 U.S.C. § 1983, asserting that the officers
violated his Fourth Amendment rights by using excessive force when they shot him,
and that the officers acted unreasonably by failing to announce their presence with a
loudspeaker or marked police cars and uniforms. He also asserted that the arresting
officer, James Abate, used excessive force by punching him repeatedly in the face before
handcuffing him, and that the Winnebago Sheriff’s Department and Winnebago County
were deliberately indifferent to his serious medical needs.
The district judge entered summary judgment for the defendants. The judge
found the evidence uncontested that Ancheta fired at Marino first. Regardless of

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No. 23-2546 Page 3
whether Ancheta fired in the air or directly at Marino, the judge ruled, an officer under
the circumstances could reasonably conclude that Ancheta posed a threat to the other
officers and bystanders. The judge added that Marino’s testimony that he announced
“Police. Police,” paired with the emergency flashers on the marked police car behind
Ancheta, were sufficient to apprise Ancheta of the officers’ presence. The judge then
determined that Abate’s use of non-deadly force was justified based on his uncontested
testimony that Ancheta was reaching for what Abate believed to be a knife, and that
Ancheta had failed to identify anyone personally involved in his allegedly deficient
medical care. (Ancheta has abandoned these latter two claims on appeal, and we say
nothing more about them.)
On appeal, Ancheta first challenges the summary judgment rejecting his claim
that the officers used excessive force when they shot him. He argues that a fact question
exists over whether the officers acted unreasonably in creating the conditions that
precipitated the encounter—that is, by approaching him with weapons drawn and
without sufficiently identifying themselves as officers. He also contends that Marino’s
testimony of shouting “Police. Police,” is contradicted by the dash camera video
evidence in which no such announcement is audible.
But even if we assume that Marino did not announce himself as an officer, it does
not follow that his actions violated the Fourth Amendment. Tactical mistakes that result
in an avoidable use of deadly force do not usually amount to a Fourth Amendment
violation. Est. of Biegert by Biegert v. Molitor, 968 F.3d 693, 698 (7th Cir. 2020) (citing City
& Cnty. of San Francisco v. Sheehan, 575 U.S. 600, 615 (2015)). In general, an officer does
not act unreasonable simply “because he created a situation where deadly force
[becomes] essentially inevitable.” Id. (concluding that the officers’ failure to plan for
encountering the suspect, failure to secure a knife block, and aggressive questioning of
the suspect did not render their “subsequent use of force unreasonable”). Even if the
defendants’ actions exacerbated the possibility of a dangerous confrontation, Ancheta’s
action—the use of his gun—was an “intervening cause of the deadly force.” Id. The
defendants “escalated the force that they applied in response to the force with which
[Ancheta] resisted; the situation requiring them to use deadly force was not primarily of
their own making.” Id.; see also Horton v. Pobjecky, 883 F.3d 941, 953 (7th Cir. 2018)
(officer’s response with deadly force—“[u]nder immense pressure, and with limited
time”—to an encounter with a suspected armed robbery subject was “reasonable,
appropriate and justified … in compliance with the Fourth Amendment”).

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No. 23-2546 Page 4
Ancheta also challenges the district judge’s Fourth Amendment analysis by
arguing, for the first time, that there is a fact question over who fired the first shot. The
judge found that the first shot had been fired by Ancheta, but Ancheta contends that
this finding is contradicted by the video evidence, which, he maintains, shows that he
was merely reaching for his weapon when Marino fired. Ancheta did not make this
argument at summary judgment, however, and arguments made for the first time on
appeal are waived. See Milwaukee Ctr. for Indep., Inc. v. Milwaukee Health Care, LLC,
929 F.3d 489, 493 (7th Cir. 2019); see also Sanzone v. Gray, 884 F.3d 736, 739 (7th Cir. 2018)
(plaintiff may not dispute a finding of fact for the first time on appeal).
AFFIRMED

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