John Burks v. Jason Tate

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 7, 2024 *
Decided November 15, 2024
Before
DAVID F. HAMILTON, Circuit Judge
AMY J. ST. EVE, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 24-1933
JOHN BURKS,
Plaintiff-Appellant,
v.
JASON TATE, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Eastern District of
Wisconsin.
No. 20-cv-782-pp
Pamela Pepper,
Chief Judge.
O R D E R
After receiving a call about an ongoing burglary, law-enforcement officers
entered John Burks’s home through an open door to investigate a possible crime in
progress. No one was present, but they discovered a firearm that they retained for
safekeeping. Burks sued the officers under 42 U.S.C. § 1983, alleging that they fabricated
* 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NONPRECEDENTIAL DISPOSITION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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No. 24-1933 Page 2
evidence in order to take the firearm, and that they conducted an unlawful search and
seizure. The district court entered summary judgment for the officers on the fabrication
claim, and a jury later decided in favor of the defendants on the remaining claim.
Because no evidence suggests that the defendants fabricated anything for the purpose
of depriving Burks of a liberty interest, and the trial was fair, we affirm.
The record allowed the jury to find the following facts. In December 2019, the
Milwaukee Police Department received a call about men removing a television from
Burks’s home. Burks was not present at the time. Two officers responded to the call.
Upon arriving at the scene, they observed a broken window and an open side door.
Along with a third officer, they entered and searched the home to investigate evidence
of a possible crime, but they did not find anyone inside.
During this investigation, one officer shined his light into a glass cabinet and saw
a firearm on the top shelf. Another officer called dispatch to determine if it was stolen.
He learned that the serial number matched a stolen firearm of a different gun type, but
the firearm that the officer described was not stolen. The officers decided to keep the
firearm for safekeeping because they worried that someone could enter the open
property and steal it, and they could not tell who owned it as Wisconsin does not have a
registry for firearms.
Burks sued these officers under § 1983. As relevant here, he alleged that they
“fabricated evidence” by lying to dispatch about the gun in order to seize it, they
conducted an unlawful search and seizure of the home, and the City of Milwaukee was
liable for failing to train and supervise its officers. See Monell v. Dep’t of Soc. Servs.,
436 U.S. 658 (1978). The defendants moved for summary judgment, which the district
court entered in part. The court dismissed Burks’s claims under Monell because he did
not present evidence that the city failed to train or supervise its officers. It also
dismissed Burks’s claim that the defendants unlawfully fabricated evidence because the
defendants did not use any evidence to deprive Burks of his liberty. The remaining
claim about the reasonableness of the search and seizure of the gun went to trial. After
hearing evidence about the need to investigate a possible burglary and forced entry,
and the accessible gun seized for safekeeping, the jury found for the defendants.
On appeal, Burks first contests summary judgment on his fabrication-of-evidence
claim, a decision that we review de novo. See Marvin v. Holcomb, 72 F.4th 828, 833
(7th Cir. 2023). Burks maintains that the officers lied to dispatch to deprive him of his
Second Amendment right to possess the firearm. A state official may violate a person’s

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No. 24-1933 Page 3
constitutional rights if the officer fabricates evidence in order to deprive the person of
liberty. See Bianchi v. McQueen, 818 F.3d 309, 319 (7th Cir. 2016). For three reasons,
though, the court properly entered summary judgment on this claim. First, the officers
did not take the gun based on any “evidence” they gave to dispatch; they permissibly
took the gun because its open availability created a safety hazard. See Sutterfield v. City
of Milwaukee, 751 F.3d 542, 578 (7th Cir. 2014). Second, the gun was not used to deprive
Burks of his liberty because it was not used as evidence to convict him. See Avery v. City
of Milwaukee, 847 F.3d 433, 442 (7th Cir. 2017) (due-process violation does not occur
unless the state uses fabricated evidence against defendant to obtain a conviction).
Third, because Milwaukee has a process for Burks to retrieve his gun after a temporary
seizure, we need not decide whether the Second Amendment would bar its permanent
seizure. See Sutterfield, 751 F.3d at 572.
Burks next focuses on the trial of his claim that the officers entered his home,
searched it, and seized his gun in violation of the Fourth Amendment. He does not
argue that the evidence fails to support the jury’s verdict. Rather, he maintains that
three procedural rulings denied him a fair trial and warrant a new one. We disagree.
He first contends that the district court erred by not permitting him to finish his
opening statement. District courts have “considerable discretion in supervising the
arguments of counsel, and we will reverse a verdict only where the court has abused
that discretion.” Black v. Wrigley, 997 F.3d 702, 710 (7th Cir. 2021) (citation omitted). No
abuse of discretion or reversible error occurred. During Burks’s opening statement, the
district court called a sidebar to inform him that he had spoken for more than twice the
amount of time allotted for opening statements and needed to conclude, which he did.
That was a reasonable—even generous—exercise of the court’s trial-management
duties. No retrial is necessary on this basis. In any event, on appeal Burks does not
point to anything that he omitted saying, let alone explain how its omission prejudiced
him. Thus no retrial is required.
Second, Burks argues that that the district court improperly denied his request to
submit into evidence the deposition testimony of one of the defendants. We will not
reverse the district court’s evidentiary ruling unless Burks can show that an error
affected the outcome of the trial. See Green v. Junious, 937 F.3d 1009, 1013 (7th Cir. 2019).
And Burks cannot do so. The district court allowed Burks to cross-examine the
defendant at trial, where he could have asked the defendant about the subjects covered
at the deposition. Burks does not explain why he needed to have the deposition

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No. 24-1933 Page 4
testimony admitted into evidence in addition to this opportunity for cross examination.
Without any showing of prejudice, no reversible error occurred. See id.
Lastly, Burks contends that he deserves a new trial because, in his view, a jury
instruction regarding the scope of the permissible search of his home in response to the
call about an ongoing burglary was flawed. He does not develop this argument other
than to insist without elaboration that the jury instruction did not place a “limit” on or
“define” the scope of a permissible search. Even if we assume that he preserved this
contention in the district court, he cites no authority suggesting that the instruction was
improper. Without a developed argument, we have no reason to disturb the judgment.
See FED. R. A PP. P. 28(a)(8); White v. United States, 8 F.4th 547, 552 (7th Cir. 2021).
AFFIRMED

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