Christopher L. Jackson v. CHAD VARTANIAN and RICHARD BILSON

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 22, 2023*
Decided April 10, 2023
Before
MICHAEL Y. SCUDDER, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 22-2051
CHRISTOPHER L. JACKSON,
Plaintiff-Appellant,
v.
CHAD VARTANIAN and RICHARD
BILSON,
Defendants-Appellees.
Appeal from the United States District
Court for the Eastern District of Wisconsin.
No. 20-C-1148
Lynn Adelman,
Judge.
O R D E R
Christopher Jackson injured himself while fleeing from what he believed was a
home invasion but turned out to be the execution of a “no-knock” warrant. He sued two
* 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. FED. R. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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law enforcement officers, asserting that the no-knock entry violated his rights under the
Fourth Amendment because it was based on false information in the affidavit
supporting the warrant application. Relying on a state-court determination that a no-
knock entry was justified irrespective of any false information, the district court entered
judgment on the pleadings for the defendants. We affirm.
We recount the facts as Jackson describes them in his operative complaint.
See Buchanan-Moore v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009). We also
consider materials central to and referred to in the complaint, and information subject
to judicial notice. See Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012);
Adams v. City of Indianapolis, 742 F.3d 720, 729 (7th Cir. 2014).
In October 2015, someone shot at a moving car in Brookfield, Wisconsin, injuring
one of the three passengers. Just before the shooting, the victim—who did not see the
shooter—had met with a man known as “C.” Local police officers learned that the
phone number listed under “C” in the victim’s phone was Jackson’s, and the victim
gave a physical description of “C” and identified Jackson as “C” in a photo lineup.
Brookfield police officers also solicited information about “C” from officers in
Milwaukee’s Violent Crimes Group. Milwaukee police detective Chad Vartanian, a
member of the FBI’s regional multijurisdictional gang task force, replied that in a
previous narcotics investigation, reliable confidential informants had identified Jackson
as “C,” and that “C” was known to sell narcotics and was a member of HPT/ATK, a
street gang. Jackson says this was false: the task force had previously identified at least
one other man known as “C” who was involved with HPT/ATK, but no one with a
description matching Jackson. Jackson has never been a member of that gang.
A Brookfield detective sought a warrant to search the house where Jackson
resided to recover evidence related to the shooting. The detective also sought
authorization to execute the warrant without knocking, citing concerns that Jackson or
others in the home might be armed. To support the no-knock request, the detective’s
affidavit emphasized that Jackson was a suspect in a shooting—an attempted homicide
of three people. The detective attested that there was “reliable information from Law
Enforcement” that Jackson was “affiliated with the known street gang HPT/ATK,” and
that HPT/ATK members are known to be armed, have committed shootings, and are
involved in the sale of illegal narcotics. The application appended Jackson’s criminal
record, which included several drug trafficking offenses. A Wisconsin judge approved
the warrant and authorized it to be executed without knocking or announcing.

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No. 22-2051 Page 3
Jackson was asleep when local and federal officers executed the warrant at
5:30 a.m. on November 5, 2015; he was startled by the loud noises and, fearing the
house was being burglarized, smashed a window, jumped through it, and fled. He was
later arrested and taken into custody. In the house, officers discovered a handgun (later
identified as the one used in the shooting), two magazines, and ammunition.
Detective Vartanian and his partner on the gang task force, FBI Special Agent
Richard Bilson, were present when the warrant was executed and participated in the
search. Jackson says that Bilson was also present at a briefing about the search before
the warrant’s execution. From his previous work, Bilson knew that Jackson was not the
same “C” the task force previously investigated, who was a member of HPT/ATK.
Despite knowing that the warrant contained false information about Jackson, Bilson
failed to stop the warrant’s execution.
The State charged Jackson with two counts of attempted first degree intentional
homicide, and one count each of recklessly endangering safety and possessing a firearm
as a felon. A jury found Jackson guilty on all counts. Before appealing, Jackson moved
for a new trial, see WIS . STAT . §§ 974.02, 809.30, arguing that he received ineffective
assistance of counsel because his attorneys had not challenged the validity of the search
warrant and no-knock authorization by moving to suppress the evidence found during
the search or seeking a Mann hearing—the Wisconsin equivalent of a Franks hearing. See
generally Franks v. Delaware, 438 U.S. 154, 155–56 (1978); State v. Mann, 367 N.W.2d 209
(Wis. 1985). He contended that the warrant affidavit falsely stated that he was a
member of HPT/ATK and that this supposed gang membership was material to the
authorization of the no-knock entry.
The trial court denied Jackson’s motion without a hearing on counsel’s
effectiveness because the assertions about the falsehoods in the warrant application
were insufficient to require one. The court also stated that even without the supposed
gang affiliation, the no-knock provision was sufficiently justified. The state appellate
court affirmed. Applying a deferential standard of review to the question whether a
hearing on ineffective assistance of counsel was required, the appellate court agreed
that Jackson’s assertions were too conclusory. It further stated that the record
demonstrated conclusively that he could not have succeeded on a challenge to the no-
knock authorization even if his lawyers had brought one:
Setting aside the disputed gang affiliation, police still had “a reasonable
suspicion that knocking and announcing their presence, under the

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particular circumstances, would be dangerous.” State v. Eason, 2001 WI 98,
¶18, 245 Wis. 2d 206, 629 N.W.2d 625 (citation omitted). As detailed in the
affidavit, Jackson was a convicted felon who police believed had tried to
kill multiple people with a firearm. Because there was a sufficient
independent basis to authorize the no-knock provision, Jackson’s trial
counsel was not ineffective for failing to file a motion to suppress. See State
v. Allen, 2017 WI 7, ¶46, 373 Wis. 2d 98, 890 N.W.2d 245 (trial counsel cannot
be ineffective for failing to make a meritless argument).
State v. Jackson, No. 2018 AP 1820-CR at 6–7 (Wis. Ct. App. Jan. 2, 2020).
Jackson then brought this suit against Vartanian, Bilson, and the task force. He
alleged that the false gang-affiliation information enabled the no-knock execution,
which caused him to jump through the window and resulted in injuries including
neurological problems, long-term damage, and ongoing pain, and economic harm.
After screening under 28 U.S.C. § 1915A, and resolution of Bilson’s first motion to
dismiss, Jackson proceeded on Fourth Amendment claims against Vartanian for
providing the false information and against Bilson for conspiring with Vartanian and
executing the warrant despite knowing of the false information. See 42 U.S.C. § 1983.1
The defendants separately moved for judgment on the pleadings. Bilson argued
that issue preclusion blocked the Fourth Amendment claims because the state court had
ruled there were sufficient grounds for the no-knock authorization even without the
attestation that Jackson was part of a dangerous gang. Both defendants also argued that
they were entitled to qualified immunity. As exhibits to their motions, they provided
the search warrant and affidavit, Jackson’s new-trial motion, and the transcript of the
oral ruling denying an evidentiary hearing on that motion.
The district court granted the motions, concluding as to both defendants that
issue preclusion applied to the ruling that the gang affiliation was not material to the
warrant’s no-knock authorization; therefore, Jackson could not show that the officers
violated his constitutional rights when they entered his home unannounced. With
Jackson unable to make that showing, the court continued, the defendants were entitled
1 The district court, hesitant to rely on Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971), as a vehicle for the claim, allowed a
§ 1983 claim against Bilson, a federal officer, based on an alleged conspiracy with
Vartanian.

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to qualified immunity. Jackson timely moved for reconsideration under Federal Rule of
Civil Procedure 59(e), arguing that the court incorrectly applied Wisconsin issue-
preclusion law and should not have entered judgment for Vartanian, who had not
argued issue preclusion. The court denied the motion, and Jackson appeals.
The defendants assert, incorrectly, that only the denial of the Rule 59(e) motion is
within the scope of this appeal, but Jackson filed his motion within 28 days of the
court’s judgment, tolling his time to appeal the judgment. See Banks v. Chicago Bd. of
Educ., 750 F.3d 663, 666 (7th Cir. 2014); FED. R. A PP. P. 4(a)(4)(A)(iv). We review the
court’s entry of judgment on the pleadings de novo. Buchanan-Moore, 570 F.3d at 827.
Jackson primarily contends that issue preclusion does not foreclose him from
trying to prove that the no-knock authorization was based on the false gang
information and was therefore unreasonable. We apply Wisconsin’s issue-preclusion
law because federal courts must give state-court judgments the same effect that the
issuing court would. See 28 U.S.C. § 1738; DeGuelle v. Camilli, 724 F.3d 933, 937 (7th Cir.
2013). “In order for issue preclusion to be a potential limit on subsequent litigation, the
question of fact or law that is sought to be precluded actually must have been litigated
in a previous action and be necessary to the judgment.” Mrozek v. Intra Fin. Corp.,
699 N.W.2d 54, 61 (Wis. 2005). Applying preclusion also must be “fundamentally fair.”
Id. Here, the state appellate court ruled that Jackson was not entitled to a hearing on his
new-trial motion because he did not support his assertion that the warrant application
contained knowingly false information that was material to the no-knock authorization.
See Jackson, No. 2018 AP 1820-CR at 6. But it also went on to say outright that he could
not show that his lawyers should have challenged the evidence on this ground because
the no-knock entry was justified even without the “disputed gang affiliation.” Id. at 6–7.
That issue—the materiality of the supposedly false information to the no-knock
authorization—is what Jackson’s suit would require the federal courts to revisit.
Jackson insists that this is permissible because the conditions for applying issue
preclusion are not met. He does not contest whether the issue was actually litigated,
decided, and necessary to a final judgment. But he argues that the district court did not
address whether applying preclusion is fundamentally fair here, and he contends that it
is not. We agree with Jackson that the district court did not address the multitude of
factors that Wisconsin law identifies as part of the fairness inquiry. See DeGuelle,
724 F.3d at 936–37. Jackson points to several factors that, in his view, make preclusion
unfair here: the difference in burdens of proof, differences in the quality of the
proceedings (including that he never received an evidentiary hearing on his new-trial

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motion), and the distinct nature of the two actions—one seeking a new criminal trial
and one seeking damages for Fourth Amendment violations that preceded his arrest.
But the sum of the fundamental-fairness factors does not weigh against applying
preclusion: Jackson could—and did—seek review of the ineffective-assistance decision,
and he has not given us reason to doubt the quality of the state-court proceedings.
See Mrozek, 699 N.W.2d at 61–62. And if anything, Jackson had a lower burden of
persuasion in the state proceeding. See Paige K.B. ex rel Peterson v. Steven G.B.,
594 N.W.2d 370, 375 (Wis. 1999) (fairness concern arises when burden shift favors party
seeking preclusion). To obtain a hearing on his new-trial motion in state court, he did
not have to prove anything: he had to allege sufficient facts that, if true, would entitle
him to a new trial. To win this federal suit, he would have to prove his assertions by a
preponderance of the evidence. Finally, there is nothing unusual about applying
preclusion to an issue in a civil rights case that was first litigated in a criminal
proceeding. See, e.g., Allen v. McCurry, 449 U.S. 90 (1980).
Jackson makes one more argument against preclusion: that the district court
should not have applied its ruling to his claim against Vartanian, who did not raise the
defense in his Rule 12(c) motion or his answer. But given that courts may raise issue
preclusion sua sponte in the interest of judicial economy, see Kratville v. Runyon, 90 F.3d
195, 198 (7th Cir. 1996), and that Jackson had the opportunity to fully brief issue
preclusion in response to Bilson’s motion, we agree with the district court’s sensible
decision not to distinguish between the defendants in applying issue preclusion. Nor do
we fault the court for applying preclusion even though neither defendant first pleaded
the defense in his answer. We typically consider failure to raise an affirmative defense
in one’s pleading a forfeiture only if the plaintiff was prejudiced by the delay. See Reed
v. Columbia St. Mary’s Hosp., 915 F.3d 473, 478 (7th Cir. 2019). The delay here was
minimal, and Jackson has not shown any prejudice: he had early notice of the
preclusion defense—the case never passed the pleadings stage—and he fully briefed his
opposition. See Burton v. Ghosh, 961 F.3d 960, 966 (7th Cir. 2020).
Because Jackson is precluded from disputing that the no-knock authorization
was justified even without the gang information, he cannot show that the defendants
violated the Fourth Amendment. See Richards v. Wisconsin, 520 U.S. 385, 394 (1997);
Rainsberger v. Benner, 913 F.3d 640, 653 (7th Cir. 2019) (officers not liable for including
false information in warrant affidavit when information not material). He therefore
loses on the merits, though it is also true, as the district court concluded, that without

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the violation of a constitutional right, the defendants are entitled to qualified immunity.
See Muhammad v. Pearson, 900 F.3d 898, 903–04 (7th Cir. 2018).
We have considered Jackson’s other arguments, but none merits discussion.
AFFIRMED

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