                           In the

United States Court of Appeals
                For the Seventh Circuit

No. 11-3428

JAMES W ELLS,
                                              Plaintiff-Appellant,
                               v.

JEFF C OKER, in his Individual Capacity, et al.,

                                           Defendants-Appellees.


           Appeal from the United States District Court
                 for the Central District of Illinois.
          No. 3:08-cv-03302—Sue E. Myerscough, Judge.



     A RGUED JULY 11, 2012—D ECIDED F EBRUARY 12, 2013




  Before P OSNER, M ANION, and T I NDER, Circuit Judges.
  T INDER, Circuit Judge. At around midnight on January 1,
2008, James Wells decided to celebrate New Year’s Eve
by shooting his gun into the air from his back porch.
His celebration ended when Officer Jeffrey Coker of the
Springfield, Illinois, Police Department shot him three
times. What transpired in the moments between those
two events is at the heart of this case.
2                                               No. 11-3428

  Wells pleaded guilty to reckless conduct for his actions
on that night. The charge to which he entered a guilty
plea stated that he “discharged a firearm multiple
times . . . and then pointed the firearm at [Coker].” Prior
to entering this guilty plea, Wells sued Coker and his
employer, the City of Springfield, alleging that Coker
used excessive force in shooting Wells. Coker contends
that his force was reasonable under the Fourth Amend-
ment and state law because Wells pointed his gun at
him. The district court granted summary judgment
to the defendants after determining that Wells was judi-
cially estopped from denying that he had pointed
the gun at Coker because Wells pleaded guilty to a
charge that included the statement that he had pointed
the gun at Coker. Because neither judicial estoppel nor
other doctrines of preclusion apply to the particular
facts of Wells’s plea agreement, we reverse the district
court’s order.


                      I. Background
   The factual background for this appeal is deceptively
simple. The parties agree that Wells shot his gun into
the air several times to celebrate the New Year of 2008.
They also agree that, after arriving at the scene to investi-
gate the gunfire, Coker shot Wells three times, seriously
injuring Wells. The only material fact in dispute is
whether Wells pointed his gun at Coker before Coker
fired at Wells. Coker claims that Wells turned toward
him and pointed a gun in his direction, whereas Wells
denies doing so.
No. 11-3428                                           3

  On January 30, 2008, the Sangamon County State’s
Attorney’s Office filed an information charging Wells
with reckless discharge of a firearm, a felony, and
stated that he “endangered the bodily safety of an indi-
vidual in that, while acting in a reckless manner, he
discharged a firearm multiple times.” On August 11,
2009, the State’s Attorney filed a second count against
Wells, charging him with reckless conduct, a misde-
meanor. This second count alleged that Wells “en-
dangered the bodily safety of individuals in that, while
acting in a reckless manner, he discharged a firearm
multiple times . . . and then pointed the firearm at
Officer Jeff Coker” (emphasis added). See 720 ILCS 5/12-
5(a)(1) (“A person commits reckless conduct when he
or she . . . recklessly performs an act or acts that
cause bodily harm to or endanger the safety of another
person”). Either of these two factual bases—discharging
a gun in a residential neighborhood or pointing a gun
at Coker—would have been sufficient, standing alone,
to support a guilty plea for reckless conduct. Through
an agreement with the State to dismiss the felony
count, Wells pleaded guilty to this second count on
that same day, following a plea hearing during which
the court recited the terms of this second count to
Wells, who replied by agreeing that he understood the
charge and all possible penalties. Wells’s lawyer was
present during this plea hearing. The transcript of the
guilty plea hearing (which Wells introduced in opposi-
tion to the State’s summary judgment motion) shows
that the discussion of the facts supporting the charge
was brief and that Wells’s guilty plea was not specific
4                                             No. 11-3428

with respect to whether he was admitting to shooting
the firearm, pointing it at Coker, or both:
    The Court:   All right, in Count II, Mr. Wells,
                 you’re charged with the offense of
                 Reckless Conduct. It’s alleged that
                 on or about the 1st day of January,
                 2008, within Sangamon County,
                 that you endangered the bodily
                 safety of individuals in that, while
                 acting in a reckless manner, you dis-
                 charged a firearm in the air multiple
                 times in a residential neighborhood
                 while celebrating New Year’s Eve
                 and then pointed the firearm at Offi-
                 cer Jeff Coker of the Springfield Po-
                 lice Department.
                 As charged, it’s a Class A misde-
                 meanor punishable up to a year in
                 jail, $2,500 fine, and you could be
                 sentenced to probation, conditional
                 discharge or periodic imprisonment.
                 Do you understand the charge in
                 Count II and all of the possible pen-
                 alties for a Class A misdemeanor?
    Wells:       Yes.
                           ...
    The Court:   How do you plead to the charge of
                 Reckless Conduct, a Class A misde-
                 meanor, in Count II?
No. 11-3428                                                 5

    Wells:        Guilty.
  During the period between the filing of the first and
second criminal charge, Wells brought a civil rights
action under 42 U.S.C. § 1983 against Coker, alleging
that Coker’s decision to shoot Wells violated Wells’s
constitutional rights. Wells also sued the City of Spring-
field under a Monell custom or policy theory, Monell v.
New York City Dep’t of Soc. Servs., 436 U.S. 658 (1978),
and included some state tort law claims as well.1 The
defendants moved for summary judgment on May 20,
2011, arguing that, since the charge to which Wells
pleaded guilty stated that Wells pointed a loaded gun
at Coker, Coker’s use of deadly force in response was
justified. In response, Wells denied aiming his gun at
Coker. But he admitted that after he shot several
rounds in the air, his gun still contained a few rounds
of ammunition.
  In litigating the motion for summary judgment, the
parties also disputed the legal significance of Wells’s
guilty plea for reckless conduct. The defendants argued
that Wells admitted to pointing his gun at Coker when
he pleaded guilty in 2009 to recklessly endangering the
safety of another person that New Year’s Eve. They
observed that the information to which he pleaded
guilty alleged that Wells had “discharged a firearm in



1
  These claims, however, require no separate discussion—either
by the district court in considering the defendants’ motion or
on appeal—because the judgment was based entirely on
whether Wells could contest that he pointed a gun at Coker.
6                                           No. 11-3428

the air multiple times in a residential neighborhood
while celebrating New Year’s Eve and then pointed the
firearm at Officer Jeff Coker.” Wells responded that he
pleaded guilty to only the offense of reckless conduct,
not to the facts in the information.
  The district court granted summary judgment for
the defendants on all counts. The district court con-
cluded that Wells had admitted that he had pointed his
gun at Coker when he pleaded guilty to the charge
of reckless conduct, and that Wells was therefore
judicially estopped from denying that he had pointed
his gun at Coker. Thus, the district court reasoned, it
was undisputed that Wells had pointed his gun at
Coker and Coker’s use of force was objectively reason-
able. The district court conceded that if Wells had not
been bound by the admission, the question of whether
Wells had pointed his gun at Coker would have been
disputed, and summary judgment therefore would
have been inappropriate.
  On appeal, Wells argues that the district court erred
by applying judicial estoppel. He reasons that, in
pleading guilty to reckless conduct, he did not admit
that he had pointed a gun at Coker. That allegation,
he contends, was superfluous to the charge that by dis-
charging his gun overhead he committed reckless con-
duct. As a result, he concludes, he may and does dispute
whether he pointed a loaded gun at Coker, so summary
judgment was inappropriate.
No. 11-3428                                               7

                       II. Discussion
A. Legal Standard
  We review a grant of summary judgment de novo.
Repa v. Roadway Express, Inc., 477 F.3d 938, 940 (7th Cir.
2007). Summary judgment is appropriate where “the
pleadings and submissions in the record indicate the
absence of any genuine issues of material fact, such that
the moving party is entitled to judgment as a matter
of law.” Mercatus Grp., LLC v. Lake Forest Hosp., 641 F.3d
834, 839 (7th Cir. 2011). A genuine issue of material
fact exists when “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In reviewing a grant of summary judgment, we construe
the facts in the non-movant’s favor. Kuhn v. Goodlow,
678 F.3d 552, 555 (7th Cir. 2012).


B. Judicial Estoppel
  In determining whether Wells is judicially estopped
from denying pointing the gun at Coker, we apply
federal law concerning judicial estoppel. The Full Faith
and Credit Clause of the U.S. Constitution and 28 U.S.C.
§ 1738 require a federal court to give a state judgment
the same effect it would have in state court, which
typically requires the federal court to apply state law
concerning preclusion doctrines. See, e.g., Chi. Title Land
Trust Co. v. Potash Corp. of Saskatchewan Sales Ltd., 664
F.3d 1075, 1079 (7th Cir. 2011). Judicial estoppel, however,
“is not part of the law of judgments in Illinois so much
8                                               No. 11-3428

as it is a rule of evidence or pleading.” Astor Chauffeured
Limousine Co. v. Runnfeldt Inv. Corp., 910 F.2d 1540, 1550
(7th Cir. 1990) (citation omitted). Thus, federal law
applies. Id.
   The doctrine of judicial estoppel prevents a party
from prevailing on an argument in an earlier matter
and then relying on a contradictory argument to prevail
in a subsequent matter. See New Hampshire v. Maine,
532 U.S. 742, 749 (2001). In determining whether a party
is judicially estopped from raising an argument, we
examine three factors: (i) whether the party’s positions
in the two litigations are clearly inconsistent; (ii) whether
the party successfully persuaded a court to accept
its earlier position; and (iii) whether the party would
derive an unfair advantage if not judicially estopped. Id.
at 750-51; see also United States v. Christian, 342 F.3d 744,
747 (7th Cir. 2003). In addition, to qualify as a judicial
admission, a statement also must be “deliberate, clear,
and unambiguous.” Robinson v. McNeil Consumer Health-
care, 615 F.3d 861, 872 (7th Cir. 2010).
  We need not reach this test, however, since Wells did
not “prevail” in his criminal case. After pleading guilty
to reckless conduct, Wells was sentenced to two years
of probation and two days in jail. At best, perhaps one
could say that Wells “prevailed” in the sense that he
avoided a trial for reckless discharge of a firearm, a
felony for which Wells, if convicted, likely would have
received a more onerous sentence. But this argument
is specious. After all, Wells could have been acquitted
had he gone to trial on the felony charge. Moreover,
No. 11-3428                                                    9

the State also benefitted from its compromise with
Wells, trading the uncertainty of a jury trial for a known
outcome while conserving prosecutorial resources.
Given the compromise nature of this plea agreement, re-
ferring to Wells as the prevailing party is a bridge too far.
  Although we have applied judicial estoppel to
arguments made in prior proceedings where there was
no definitive winner or loser, we do not do so in this
particular case, where the disposition involved a
criminal conviction. In Kale v. Obuchowski, we held that
the appellant was judicially estopped from claiming that
he owned certain assets during a business dispute,
when he had denied owning them during an earlier
divorce proceeding. 985 F.2d 360, 361-62 (7th Cir. 1993).
That divorce proceeding was resolved with a court-ap-
proved divorce settlement. Id. at 361. As with Wells’s
plea agreement, neither party to that divorce settle-
ment won all that it had desired. But the similarities
end there. Even though Mr. Kale did not strictly “pre-
vail” in his divorce, he received a highly favorable
settlement. This court characterized him as having
“triumph[ed] by inducing [his] opponent[] to surrender.”
Id. at 362. In the instant case, one can hardly say that
Wells “triumph[ed].” Given this important difference
between Kale and Wells’s appeal, we decline to extend
our decision in Kale to the circumstances here.2



2
  While some of our sister circuits have applied judicial
estoppel to guilty pleas in specific instances following highly
                                                   (continued...)
10                                                  No. 11-3428

C. Issue Preclusion
  Neither does the doctrine of issue preclusion prevent
Wells from contesting whether he pointed a gun at Coker.
We apply Illinois law concerning issue preclusion
to determine whether Wells’s state court conviction
collaterally estops him from pursuing a § 1983 claim. See
Brown v. City of Chicago, 599 F.3d 772, 774 (7th Cir. 2010).
In Illinois, a litigant is estopped from raising an issue in
a collateral proceeding when the following four factors
are met: “(1) the party against whom the estoppel is
asserted was a party to the prior adjudication, (2) the
issues which form the basis of the estoppel were
actually litigated and decided on the merits in the
prior suit, (3) the resolution of the particular issue was
necessary to the court’s judgments, and (4) those issues
are identical to issues raised in the subsequent suit.”
Wozniak v. DuPage County, 845 F.2d 677, 682-83 (7th Cir.
1988) (quotation marks and citation omitted); accord
Talarico v. Dunlap, 667 N.E.2d 570, 572 (Ill. App. Ct.
1996), aff’d, 685 N.E.2d 325 (Ill. 1997).
  In Wells’s case, the third factor plainly is not met.
According to the second count filed in Wells’s criminal
case, Wells both discharged his gun in the air and pointed



2
  (...continued)
fact-dependent analyses, see, e.g., Bradford v. Wiggins, 516
F.3d 1189, 1195 (10th Cir. 2008); Thore v. Howe, 466 F.3d 173, 185
(1st Cir. 2006); Lowery v. Stovall, 92 F.3d 219, 224 (4th Cir.
1996), we do not believe that the facts concerning Wells’s
plea agreement and plea colloquy warrant the same treatment.
No. 11-3428                                                   11

the gun at Coker. Either of these actions, taken in
isolation, would have supported Wells’s guilty plea
for reckless conduct. Therefore, the resolution of the
issue of whether Wells pointed his gun at Coker was not
necessary to the judgment in the earlier criminal case.
  At first glance, it may seem peculiar that, where each
of two alternative factual bases would be sufficient to
support a guilty plea but neither is necessary, this inde-
terminacy means that neither of the two bases can bind
a party in subsequent litigation, even where the party
agrees that at least one of these two bases was neces-
sary. Illinois courts, however, read the “necessary for
the judgment” factor literally. For instance, in Kessinger
v. Grefco, Inc., the Illinois Supreme Court stated:
   To operate as an estoppel by verdict it is absolutely
   necessary that there shall have been a finding of a
   specific fact in the former judgment or record that
   is material and controlling in that case and also
   material and controlling in the pending case. It must
   also conclusively appear that the matter of fact was
   so in issue that it was necessarily determined . . . .
   If there is any uncertainty on the point that more than
   one distinct issue of fact is presented to the court the
   estoppel will not be applied, for the reason that the
   court may have decided upon one of the other
   issues of fact.
672 N.E.2d 1149, 1156 (Ill. 1996) (emphases added) (quota-
tion marks and citations omitted). Given this strict stan-
dard, Illinois courts will not apply collateral estoppel
where there are multiple independent bases that could
12                                              No. 11-3428

be sufficient to support the outcome in an earlier case,
with it being “impossible to determine on which issue
the plaintiff prevailed.” Herzog v. Lexington Township, 657
N.E.2d 926, 931 (Ill. 1995). The strong language in
Kessinger leaves no gray area concerning when issue
preclusion applies. When there is “any uncertainty”
regarding whether a specific factual finding was “abso-
lutely necessary,” issue preclusion does not apply.
Since the issue of whether Wells pointed a gun at
Coker was not controlling or necessary to the disposi-
tion of Wells’s criminal case, the doctrine of issue preclu-
sion does not apply.


D. Illinois Courts’ General Practice
   In determining how to treat facts that underlie a guilty
plea in a subsequent proceeding, we also examine the
general practice of Illinois courts. If Illinois courts would
give preclusive effect to Wells’s earlier plea agreement,
then we are required to do the same. See Haring v.
Prosise, 462 U.S. 306, 308 (1983). In certain circumstances,
Illinois courts will give prior guilty pleas preclusive
effect in later litigation, without expressly invoking
judicial estoppel, issue preclusion, or some other doc-
trine of preclusion. See, e.g., In re Callas, 411 N.E.2d 273,
277 (Ill. 1980) (an attorney’s guilty plea for an offense
involving moral turpitude is conclusive evidence of
guilt in a later professional disciplinary proceeding).
Therefore, we examine whether Illinois courts’ gen-
eral practice in similar cases—apart from those cases
applying traditional doctrines of preclusion, which
No. 11-3428                                              13

we have already discussed—can offer guidance to
this court.
   Before discussing Illinois courts’ general practice,
we note that we are interested in these courts’ treatment
of a guilty plea in a prior case, not of a conviction
following a trial in a prior case. See Smith v. Sheahan, 959
F. Supp. 841, 843 (N.D. Ill. 1997) (noting that Illinois
courts are inconsistent with respect to whether there is
a distinction between the conclusive effect of a guilty
plea and the conclusive effect of a conviction following
a trial). We also note that we are not concerned merely
with whether Illinois allows for the introduction of a
guilty plea in an earlier case as evidence in subsequent
litigation. The answer to that question, in almost all
circumstances, is yes. See id. at 842-47 (providing an
overview of Illinois practice in this area). Instead, the
focus of our inquiry is whether a prior guilty plea
provides conclusive evidence of the underlying facts in
the plea, which would make summary judgment appro-
priate in this case, rather than prima facie evidence,
which may be refuted.
  In past surveys of Illinois caselaw, we have come to
conflicting conclusions regarding the treatment of facts
that underlie a guilty plea in a criminal case, where
those facts are relevant to a subsequent civil proceeding.
In Brown v. Green, we cited the Illinois case Smith v. An-
drews for the proposition that “Illinois courts have tradi-
tionally treated the guilty plea as an admission by
the defendant of the facts alleged in the complaint that
may be used against the defendant in a subsequent pro-
14                                                   No. 11-3428

ceeding.” 738 F.2d 202, 206 (7th Cir. 1984) (citing Smith
v. Andrews, 203 N.E.2d 160, 163-64 (Ill. App. Ct. 1964);
see also Rodriguez v. Schweiger, 796 F.2d 930, 933 (7th Cir.
1986) (citing Brown and Andrews for the same proposi-
tion 3 ). Andrews, however, explained simply that a guilty
plea to a robbery charge “is an admission which may
be received against [the defendant] in a subsequent
proceeding,” and it “would be sufficient, especially
when uncontradicted, to support the finding that the
defendant had in fact committed a robbery.” 203 N.E.2d
at 163-64. Wells’s situation is starkly different. Whereas
the fact to be established in Andrews was simply that
the party had committed a crime to which he later
pleaded guilty, the matter at issue here is not whether
Wells engaged in reckless conduct. Rather, a predicate
fact—whether Wells pointed his gun at Coker—is at
issue in this case.
  A separate strand of Illinois caselaw indicates that a
guilty plea in an earlier criminal case is admissible as
prima facie evidence in a later civil case. See O’Dell v.
Dowd, 429 N.E.2d 548, 551 (Ill. App. Ct. 1981). As such,
this caselaw considers evidence related to an earlier
guilty plea to be rebuttable; it may be “explained and
contradicted.” Id.; see also Country Mut. Ins. Co. v. Duncan,



3
   Rodriguez also cites Thornton v. Paul for a similar proposition,
when in fact Thornton expressly declined to consider the effect
of a guilty plea in a later proceeding. 384 N.E.2d 335, 342
(Ill. 1978), overruled by Am. Family Mut. Ins. Co. v. Savickas,
739 N.E.2d 445 (Ill. 2000).
No. 11-3428                                                15

794 F.2d 1211, 1215 (7th Cir. 1986) (“A guilty plea, like
any other admission, is not necessarily conclusive as to
the facts underlying the plea but is subject to explana-
tion by the declarant.”); Sheahan, 959 F. Supp. at 846
(“Illinois law is clear that a guilty plea itself is an admis-
sion that may be considered with other evidence.”);
Barnes v. Croston, 247 N.E.2d 1, 3 (Ill. App. Ct. 1969) (“[A]
guilty plea is admissible in a subsequent civil action
against defendant . . . subject to explanation and con-
tradictions and may be received, weighed, and con-
sidered by the jury in connection with all of the other
evidence in the case.”). In Country Mutual, we stated
that, while “there is no Illinois Supreme Court ruling
explicitly on the admissibility of guilty pleas, a sub-
stantial number of Illinois appellate courts and federal
courts sitting in diversity have held that a guilty plea
is introduced into evidence as an admission against
interest.” 794 F.2d at 1214-15. Like other admissions,
a guilty plea in a previous case “is not necessarily con-
clusive as to the facts underlying the plea but is subject
to explanation by the declarant” in a later civil action.
Id. at 1215.
   Given this conflicting caselaw, it is apparent that
Illinois law does not have a consistent, general prac-
tice—aside from the traditional doctrines of preclu-
sion—that is applicable to these circumstances. As we
have explained, neither do the doctrines of judicial
estoppel or issue preclusion apply. Accordingly, we
conclude that the district court erred in granting the
defendants’ motion for summary judgment. Wells
16                                         No. 11-3428

should be given the opportunity to contest or other-
wise explain the facts that underlie his guilty plea.


                   III. Conclusion
  Since the question of whether Wells pointed a gun
at Coker constitutes a genuine issue of material fact,
we R EVERSE the judgment, and R EMAND the case for
proceedings consistent with this opinion.




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