author: TERENCE T. EVANS, Circuit Judge.

text:
    Doug ERDMAN, W & E Buying and Leasing, a Wisconsin general partnership, and Wellington Place, Inc., a Wisconsin corporation, Plaintiffs-Appellants, v. CITY OF FORT ATKINSON, a municipal corporation, Defendant-Appellee.
    No. 95-3484.
    United States Court of Appeals, Seventh Circuit.
    Argued Feb. 20, 1996.
    Decided May 24, 1996.
    Order Denying Rehearing and Suggestion for Rehearing En Bane June 25, 1996.

      Cordelia S. Munroe, S. Todd Farris, Frie-bert, Finerty & St. John, Milwaukee, WI, Thomas W. St. John (argued), Milwaukee, WI, for plaintiffs-appellants.
    Robert G. Wixson (argued), Kim I. Moer-mond, Winner,''Wixson & Pernitz, Madison, WI, for defendant-appellee.
    Before COFFEY, EASTERBROOK, and EVANS, Circuit Judges.
   TERENCE T. EVANS, Circuit Judge.

This case, seeking damages under the Fair Housing Amendments Act of 1988, 42 U.S.C. §§ 3601-8681, (FHAA) ultimately turns on the actions of the plaintiffs and our interpretation of the phrase “equal opportunity to use and enjoy a dwelling.”

Doug Erdman and two of his entities — W & E Buying and Leasing and Wellington Place, Inc. — (we will refer to all three as Erdman) appeal from an order granting summary judgment for the City of Fort Atkinson and from the denial of a motion to reconsider that order. Erdman contends that the City violated the. FHAA when it refused to give him a conditional use permit to construct a community-based residential facility to house elderly, handicapped individuals. He asserts that the denial constitutes discrimination and a failure to make reasonable accommodations in city land use policies to afford the elderly handicapped equal housing opportunities.

Judge Barbara Crabb of the district court found that the City, in denying the permit request, did not run afoul of the FHAA. The denial of a single conditional use application, the judge said, does not “demonstrate that the elderly handicapped have received unequal housing opportunities in the city of Fort Atkinson.” There are, she found, other housing units for the elderly handicapped in the city. After judgment was entered, a Rule 60(b) motion for relief from judgment was filed and denied. Erdman contends that the judge, by placing on him the initial burden of showing unequal housing opportunities in the city, in’effect, added an element to the statute.

We review a grant of summary judgment de novo, applying the same standards as the district court and viewing the record and all reasonable inferences drawn from it in the light most favorable to the nonmoving party. Smith v. Shawnee Library Sys., 60 F.3d 317, 320 (7th Cir.1995). We will affirm the entry of summary judgment if there is no genuine issue as to any material fact, such that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The denial of a Rule 60(b) motion is reviewed for an abuse of discretion by the district judge.

Before getting to the facts, we note a bit of a problem here as Erdman did not comply with the district court’s summary judgment procedures, namely, responding specifically to the City’s proposed findings of fact and proposing findings of his own. For this reason, Judge Crabb took as undisputed the facts proposed by the City. She did, however, accept as undisputed proposed facts in Erd-man’s brief for which he provided citations from the record and to which the City did not object. But she did not consider. proposed facts that were not supported by a reference or that were based on inadmissible evidence. This she was entitled to do, as we noted 6 years ago in a case involving her treatment of a similar situation. Tatalovich v. City of Superior, 904 F.2d 1135 (7th Cir.1990). In the .final analysis, though, this procedural point makes no real difference as we shall soon see. We now move to the facts where our recitation in many ways mirrors the findings of the district court.

In October 1992, a fellow named Jim Weiss owned nine acres of land between two dead-end portions of McMillen Street in the city of Fort Atkinson. He also owned the adjoining 13 acres to the east in the town of Koshko-nong. Erdman, a developer, agreed to purchase the 9 acres with an option to buy the neighboring 13-acre parcel as well. His plan was to construct a community-based residential facility to house 24 elderly- handicapped individuals.

The nine-acre parcel in Fort Atkinson was zoned R-l for single-family housing. Weiss, at Erdman’s request, attempted to have the property rezoned R-3, a multi-family housing district. The Fort Atkinson planning commission denied the request ón October 27, 1992.

After the planning commission’s vote, Erd-man and an associate met with the city manager and city attorney to see if something could be worked out. They were advised to apply for a conditional use permit under the R-l zoning ordinances. Under the city’s zoning code, nursing homes (a category into which Erdman’s development fit) are a permissible conditional use in R-l zones. The officials said that if the proposed facility was relocated to the southern part of the parcel, away from some single-family residential units, the application would have a better chance of being approved. Erdman, however, decided not to alter his proposal.

The rezoning request was abandoned on October 29, 1992, and a new request for a conditional use permit was filed. In addition, because the proposed facility would have been within 2,500 feet of two other commimity-based residential facilities, Erdman applied for an exception from the statutory distance restriction on such facilities, found in § 59.97(15)(a), Wisconsin Statutes. He also asked for an exception from § 59.97(15)(b)(l), Wisconsin Statutes, which allows cities to limit the population in community-based residential facilities to one percent of a city’s population. According to the most recent census, one percent of Fort Atkinson’s population is 103 persons. Eighty-eight people lived in community-based residential facilities at the time of the application, and the proposed facility for 24 individuals would have exceeded the one percent limit.

The city’s planning commission met to consider the conditional use permit request in November of 1992. The commission was shown a site plan with the location of the building, parking areas, landscaped green space, and other improvements. The commission was also given building elevations showing what the facility would look like and floor plans indicating the layout of the building. The commission voted to grant the conditional use permit.

The Fort Atkinson city council reviews all planning commission decisions regarding conditional use permits, and it got into the act by setting the matter on the docket-for a public hearing. Following the hearing, the council voted four to one to deny the request for a conditional use permit.

The members of the city council who voted against issuing the conditional use permit gave two reasons for their votes. First, the application sought a conditional use permit for the entire nine-acre parcel of vacant land but contained plans for only the portion of land on which the facility would actually sit. Second, the application called for a cul-de-sac at the north end of McMillen Street instead of a through street as contemplated in the city’s master zoning plan. Council members said they were concerned that future water and sewer connections would be more difficult if a culsac were constructed. After the denial of the conditional use permit, Erdman built the facility on the contiguous 13-acre parcel of land in the town of Koshkonong. He then sued the City of Fort Atkinson under the FHAA.

The district court found no evidence to support a claim of intentional discrimination or discriminatory impact. We agree. But as the district court correctly noted, a defendant’s conduct must also comply with 42 U.S.C. § 3604(f)(3)(B). Under this portion of the FHAA, municipalities unlawfully discriminate when they refuse

to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.

The definition of “dwelling” in § 3602(b) includes “any vacant land which is offered for sale or lease for the construction or location thereon” of any residence.

The term “reasonable accommodation” is most often interpreted by analogy with the same phrase in the Rehabilitation Act of 1973. 29 U.S.C. § 794. An accommodation is unreasonable if it either imposes “undue financial and administrative burdens” or requires a “fundamental alteration in the nature of a program.” Southeastern Community College v. Davis, 442 U.S. 397, 410, 412, 99 S.Ct. 2361, 2369, 2370, 60 L.Ed.2d 980 (1979). The accommodation which the city of Fort Atkinson was asked to make in this case was to grant a conditional use permit so that the community-based residential facility could be built on a parcel of land zoned for single-family dwellings. On its face, the request itself is hardly unreasonable.

But not every refusal to grant a conditional use permit, even if the request is reasonable, violates the FHAA. Also, a “procedure, neutral on its face, may not be applied in a discriminatory manner” and, as we have previously noted, “determining whether a requested accommodation is reasonable requires, among other things, balancing the needs of the parties involved.” United States v. Village of Palatine, Illinois, 37 F.3d 1230, 1233, 1234 (7th Cir.1994).

Our balancing of needs turns out to be a bit one-sided because, as we noted, Erdman failed to counter the City’s statement of facts as required by the procedural rules of the district court for the Western District of Wisconsin. We turn again, then, to the two reasons why the application was denied. The first was that the plan did not set out the proposed development of the entire nine-acre site. The second was the proposed cul-de-sac, which was inconsistent with the city’s master zoning plan. These reasons, we think, justify the rejection of the application for a conditional use permit. The FHAA forces municipalities to accommodate the way handicapped people differ from people without disabilities; requiring full plans and insisting that a roadway be configured consistent with a master zoning plan are not some of those ways. However, on this record, we need not base our decision solely on this ground.

The district court said that Erdman had not shown that the handicapped elderly were denied equal housing opportunity in the city. Erdman contends that this is a misinterpretation of the statute. A plaintiff should not be required, he says, to show inequality of opportunity before a defendant is required to show that the requested accommodation is unreasonable.

Erdman’s argument goes too far. The statute is an attempt to provide “equal opportunity” through reasonable accommodations. If there were no inequality of opportunity, what would there be to make a reasonable accommodation about? Suppose there were no zoning requirements. Anyone — handicapped or not — could build whatever she wanted to build. ' What would be the point of a requirement for “reasonable accommodation”?

It is not necessary, however, for us to make pronouncements about what sort of proof should be offered to show that equal opportunity does not exist, other than to say we think the amount is slight. And this should cause no problem because, ordinarily, inequality is fairly obvious. In the “Oxford House” cases, for instance, the issue is often whether a number of- unrelated recovering substance abusers can live in a single-family house. Living together in groups of that size is claimed to be therapeutic and also is the only way most of the residents can live in a single-family home. Thus, if a reasonable accommodation is not made, they are denied an equal opportunity to live in the “dwelling.” See, e.g., Oxford House v. Town of Babylon, 819 F.Supp. 1179 (E.D.N.Y.1993); Oxford House v. Township of Cherry Hill, 799 F.Supp. 450 (D.N.J.1992).

Which brings us to the next issue — another one that will remain unanswered in this case as it. does in Brandt v. Chebanse, 82 F.3d 172 (7th Cir.1996), a case we decided a few weeks ago. In our case, the district court concluded that what the plaintiffs must show is inequality of opportunity to live in the city of Fort Atkinson. We express skepticism about that interpretation of a statute which refers specifically to inequality of opportunity to live in a dwelling (which counter intuitively includes vacant land). But for reasons which we now explain, we need not answer the question as to whether a city’s providing handicapped housing somewhere within its borders is sufficient to satisfy the statute.

Even if inequality of opportunity exists, it does not follow that all requested accommodations must then be made. In other words, Fort Atkinson would not be required to grant Erdman permission to do whatever he wanted to do on his nine acres within the city. The city council in this case raised legitimate concerns, and Erdman did not expend much of an effort attempting to convince the council that his plan should have been accepted as proposed or as modified. The council rejected the application for a conditional use on December 1, 1992. Rather than try to meet the city’s concerns, Erdman, in a sense, skipped town. He obtained approval from Jefferson County to build on the adjoining land in the town of Koshkonong by March 9, 1993.

His action meant that the elderly handicapped received a facility reasonably close to where Erdman wanted to build it in the first place. Certainly if the exact site on which Erdman ultimately built had been in the city, he would not have a claim. After all, what is the “dwelling” in this case? The land in question has been described as two parcels: a 9-acre site in the city and an “adjoining” 13-acre site in the town of Koshkonong. The truth, however, is that we’re really talking about one 22-acre plot of land. Erdman built on one part of it — an eight iron away from where he preferred to build. As we said, after his rejection by the city, he turned almost immediately to the county and built the facility on a different part of the 22-acre parcel. And then he sought damages from the City. The district court was right to reject his claim, whether we embrace the reasons for the rejection or not. There would be something troubling about allowing a claim in this situation merely because the “dwelling” straddles the boundary between a city and a town, especially when Erdman did not truly persevere in his attempt to build within the city. The grant of summary judgment by the district court is

AFFIRMED.

ORDER

June 25, 1996

Judge Barbara B. Crabb of the United States District Court for the Western District of Wisconsin granted summary judgment to the defendant-appellee in this case on September 20, 1995. A panel of this court — Circuit Judges John L. Coffey, Frank H. Easterbrook, and Terence T. Evans— affirmed Judge Crabb’s decision on May 24, 1996.

On June 7, 1996, the plaintiffs-appellants filed a petition for rehearing with suggestion for rehearing en banc. Judges Coffey, East-erbrook, and Evans have voted to deny the petition for rehearing. The suggestion for rehearing en banc has been reviewed by the other judges of this court — Chief Judge Pos-ner and Judges Cummings, Flaum, Ripple, Manion, Kanne, Rovner, and D. Wood — and none of them have voted to hear the case en banc.

Accordingly, the petition for rehearing is DENIED, and the suggestion for rehearing en banc is not accepted.

      . This lawsuit was not filed, by the way, until nearly two years later on January 11, 1995. Erd-man claims that by building in Koshkonong, he incurred increased construction costs, principally because sewer and water were not available in the town, and that he suffered lost operating income.


source: Caselaw Access Project

license: Public Domain

text:
    Joan SOLLER, Individually and as special administrator of the estate of Brian Satermo, Plaintiff-Appellant, v. Eric MOORE and City of Milwaukee, Defendants-Appellees.
    No. 95-3205.
    United States Court of Appeals, Seventh Circuit.
    Argued Feb. 20, 1996.
    Decided May 24, 1996.

      Ronald Bornstein (argued), Milwaukee, WI, for Plaintiff-Appellant.
    Susan E. Lappen (argued), Office of the City Attorney, Milwaukee, WI, for Defendants-Appellees.
    Before COFFEY, EASTERBROOK, and EVANS, Circuit Judges.
   TERENCE T. EVANS, Circuit Judge.

Many tragic lawsuits are born in the “early morning hours.” And many of these suits involve drinking, driving, and poor judgment. Some even involve guns, bloodshed, and death. This is such a ease.

Because a jury has spoken, we review the facts, as we must, in the light most favorable to the verdict. We start with the confluence of the paths of Eric Moore and Brian Satermo during the early morning hours of July 7,1992.

Moore, a city of Milwaukee police officer since 1983 who was promoted to detective in 1991, finished working his shift around 2 a.m. on July 7, 1992. He was not in uniform. While driving home he encountered a red Chevy Beretta, which was driving erratically. The Beretta, it turned out, was driven by Chris Schwan with Satermo riding shotgun. Sehwan and Satermo, two guys in their twenties, had spent the last five hours in a tavern on Milwaukee’s northwest side.

The Beretta ran a stop sign and abruptly turned in front of Moore’s car, causing him to slam on his brakes and jump the median strip. In response, Moore showed his displeasure by hitting his horn. As Moore continued to head home, he pulled alongside the driver’s side of the Beretta when Schwan suddenly weaved in front of Moore again, cutting him off and forcing his car into the median. Moore now decided to pursue the Beretta, which he perceived to be a hazard on the road. An on-again, off-again chase and confrontation ensued. Some of the highlights of the chase included: Satermo demonstrating the universal sign of disrespect toward Moore by “flipping him the bird”; the parties exchanging profanities; Moore identifying himself as a police officer; displaying his badge; and often asking, in fact ordering, the car to stop. Eventually the Beretta stopped. Moore pulled his car (actually, it was his wife’s Audi) alongside the passenger side of the Beretta. The Beretta backed up, stopping at the rear of Moore’s ear. Moore exited his car and displayed his badge in one hand, while carrying his gun in the other. The gun was out, Moore said, because he feared for his life. He identified himself as a police officer. With Moore out of his car, the Beretta sped away. At this point, Moore testified he had told the men in the Beretta he was a police officer no less than 15 times.

Moore gave chase and caught up to the Beretta, and again it came to a stop. Moore exited his car, again with his badge in his left hand and his gun in his right. As he moved toward the Beretta, he put his badge in his pocket in order to maintain a two-handed grip on his gun. Standing on the passenger side of the Beretta with his gun drawn, he again identified himself as a police officer and ordered the two men to put their hands up, which they eventually did. He ordered Schwan to take the keys out of the ignition. Schwan refused. As he watched Schwan ignore his commands, Moore testified, Satermo suddenly pushed the muzzle of the gun out of his face, prompting Moore to yell, “Don’t touch my fucking gun.” Moore told the men to keep their hands up, that he was a police officer, and he repeatedly told Schwan to take the keys out of the ignition.

Satermo appeared to Moore to be very aggressive and upset; he was having difficulty controlling his anger. Moore believed that Satermo was distracting Sehwan and Schwan was feeding off Satermo’s aggression. Therefore, he decided to get Satermo out of the car, hoping that he could then persuade Schwan to remove the keys. Moore ordered Satermo out of the car. Initially, Satermo did not comply, but after Moore’s choice of an expletive-filled command, he changed his mind. He got out and went to the rear passenger side of the Beretta. Moore told Satermo to put his hands on the trunk of the car, which he did. Satermo stood with his legs away from the car and apart, his arms extended to the trunk. Moore kept an eye on Satermo as he pointed the gun toward Sehwan, again commanding him to remove the keys. Sehwan said he was not going to move, but he did not take the keys out of the ignition. Moore noticed Satermo removing his hands from the car. He pivoted his gun back at Satermo and ordered him to return his hands to the ear. A slight shove in the back by Moore prompted Satermo to put his hands back on the car. According to Moore, he returned his attention to Sehwan, when suddenly Satermo slammed his hands down on the trunk of the ear and said, “Fuck this shit, you’re going to have to shoot me.” Satermo then pushed off the car and lunged toward Moore with his hands up, reaching toward Moore’s upper body. Moore impulsively stepped back and shot at Satermo, striking him in the left thigh. Moore testified that when Satermo turned and lunged at him, he felt that he would be killed if his gun was taken away. After being shot, Satermo turned and ran into a nearby alley. The bullet partially severed his left femoral artery and Satermo, tragically, bled to death in the alley before police found him later that morning. Moore did not chase after Satermo; he looked back at Sehwan, who quickly put his car in gear and drove away. Moore, now alone, returned to his ear and drove to a nearby restaurant, where he asked patrons to call for police assistance. Sehwan, who was quickly arrested, ended up pleading guilty to a charge of drunken driving; both his and Satermo’s blood alcohol content were above the legal limit for intoxication.

Joan Soller, Satermo’s mother, filed this suit against Moore and the City of Milwaukee under 42 U.S.C. § 1983. During the trial, which lasted two weeks, the City got out of the ease on a motion. The jury ultimately found for Moore, and Soller appeals.

Soller challenges three evidentiary rulings, the failure of the district court to give a requested self-defense jury instruction, and another ruling — that Soller could not recover certain damages — we need address only if a new trial is ordered.

A district court’s rulings on the admissibility and relevancy of evidence are reviewed under an abuse of discretion standard. United States v. Ahangaran, 998 F.2d 521, 524 (7th Cir.1993) (citations omitted). Evidentiary rulings focusing on the probative value of proffered evidence are also left to the sound discretion of the trial court. Sims v. Mulcahy, 902 F.2d 524, 531 (7th Cir.1990). “Only in an extreme case are appellate judges competent to second-guess the judgment of the person on the spot, the trial judge.” United States v. Krenzelok, 874 F.2d 480, 482 (7th Cir.1989). Further, as we have noted, the exclusion of evidence under Rule 403 of the Federal Rules of Evidence is an important tool for trial judges to use when seeking to avoid significant litigation on issues collateral to those required to be tried. See Sims, 902 F.2d at 531.

Prior to trial, the court granted a motion in limine prohibiting Soller from introducing evidence that in July 1990, Moore was involved in another incident said to be strikingly similar. In that incident, Moore was in uniform, and on duty (two things, we note, that are not present in our case), when he became involved in the pursuit of a suspected traffic violator which culminated in Moore shooting the suspect in the left thigh. The court also granted motions in limine prohibiting Soller from (1) introducing as evidence certain model standards of the International Association of Chiefs of Police (IACP) relating to off-duty police officers engaging in stops of suspected traffic violators and (2) calling Assistant Chief of Milwaukee Police Alfonso Graham as a witness in the case. Finally, the court denied Soller’s request that the jury be told that if it found Moore acted unreasonably in identifying himself as a police officer, Satermo had a right to resist or flee.

The most important ruling challenged today is the one precluding Soller from getting into the “similar” 1990 incident. Soller sought to introduce the evidence, of course, under Rule 404(b) of the Federal Rules of Evidence. The rule permits the introduction of “other crimes, wrongs, or acts” to prove such things as “motive ... intent ... or absence of mistake or accident.”

The evidence Soller sought to introduce was that Moore was involved in a high speed chase with a fellow named Rayfield Julks. After attempting to elude Moore in his vehicle, Julks stopped the car, dove out of the window, and fled on foot. Moore ran after Julks, drew his weapon, and ultimately cornered him at gunpoint. Moore contended that Julks reached into his waistband and “bolted” toward him. Moore, claiming self-defense, shot Julks in the right thigh. The proffered evidence would have also included a claim that Moore beat Julks after he was shot. Had this evidence gone in, other evidence to soften its impact — Moore was exonerated on all claims of wrongful conduct in connection with the incident — would have been presented by the defendants.

The basic claim in this case is that Moore used excessive force against Satermo. Claims of excessive force in the case of a “seizure” are analyzed under the “objectively reasonable” standard of the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 1872, 104 L.Ed.2d 443 (1989); McDonald v. Haskins, 966 F.2d 292, 293 (7th Cir.1992). The trier of fact must look to whether the officer’s actions were objectively reasonable in light of the facts and circumstances confronting him, without regard to his underlying intent or motivation. Id. Our Rule 403 analysis begins by asking whether the evidence relating to the prior shooting was relevant to the issue in this case — the objective reasonableness of Moore’s actions under the circumstances presented at the time Satermo was shot. Soller says that based on the similar nature of the two incidents, how could the prior act evidence not be considered relevant? The district court expressed some doubt about relevancy, finding that the reasonableness of Moore’s actions with Satermo could not be shown by a previous incident in which there was a conclusion that Moore’s conduct was lawful. While it is a close question, we think the evidence was relevant. But the district court’s finding that it was not relevant was not unreasonable. Even assuming relevancy, it must be emphasized that Rule 403 of the Federal Rules of Evidence authorizes the district courts to exclude relevant evidence if its probative value is substantially outweighed by other considerations, including unfair prejudice, confusion of issues, and considerations based on delay. And when a district court has balanced prejudice and pro-bativeness in making calls under Rule 403, we are especially reluctant to intervene, Berry v. Deloney, 28 F.3d 604, 608 (7th Cir.1994), because the district court is in a much better position to assess these considerations than are we with only a cold record before us.

Soller could win on this issue only if we were convinced that the evidence had to be admitted, and we are not certain that it should have come in. If received, the trial could have detoured into an entire replay of the Moore-Julks encounter. A trial within a trial could have resulted. While we’re certain the district judge could have structured the presentation of the issue in such a way as to cabin the evidence a bit, all sorts of irrelevancies could have conceivably crept into the case nevertheless. We are confident that the district court carefully balanced the issues here and, in the exercise of discretion, opted to take a restrictive approach. We cannot say, based on this record, that the judge abused his discretion in making the call.

Soller also contends that the court abused its discretion when it stopped her from offering documentary evidence from the IACP. We do not agree. She sought to introduce IACP standards and policies concerning the prohibition against off-duty officers engaging in traffic stops under circumstances where they are personally involved in the infraction. Through this evidence she sought to prove that, under the circumstances confronting Moore, he was not professionally obligated to pursue the Beretta and make the stop. Moore and the City countered that these “model” policies were not relevant to whether Moore acted within proper Milwaukee Police Department procedures and constitutional requirements with reference to his decisions and actions. The district court agreed with Moore and the City and kept the evidence out. The IACP evidence, the court thought, related to preseizure activity, and it was therefore not relevant to the question of whether Moore’s actions in “seizing” Satermo and the force he used were objectively reasonable.

Soller concedes that the trial court was correct in determining that preseizure activity, in and of itself, does not violate the Fourth Amendment proscription against unreasonable seizures. Nonetheless, she argues that the IACP evidence did not concern itself only with preseizure activity; it went also to the question of the reasonableness of Moore’s actions in “effectuating” Satermo’s seizure. Soller’s attempt to characterize this evidence as relating to effectuation of the seizure, rather than preseizure activity, is unpersuasive. The policies were simply not relevant to the issue of the reasonableness of Moore’s actions in seizing Satermo. And furthermore, whether it is wise public policy to allow off-duty police officers to chase late-night traffic violators is beside the point; the action is not unconstitutional and, more to the point, it has nothing to do with the key issue of whether the force used after a suspect is collared is excessive under the circumstances. The district court did not abuse its discretion in barring the evidence.

Similarly, the district court did not abuse its discretion when it precluded the testimony of Graham, who was not a witness to the shooting or a participant in its investigation. His involvement was limited to presiding over a police department review of the shooting. Soller sought to introduce testimony from Graham regarding his response to the IACP model policies, which he read during the course of his deposition. At his deposition, Graham testified that the model policies appeared to him to represent common sense, although they were not Milwaukee Police Department policy. Soller argued that the proffered testimony would establish not only that the IACP model policies made sense, but that they were not inconsistent with city of Milwaukee police policy. In ruling on defendants’ motion in limine to exclude this testimony, the district court read both the IACP model policies and Graham’s deposition testimony regarding those policies. The judge concluded that the issue was what policies Moore was bound to and guided by. Since Graham did not state that the IACP model policies are Milwaukee’s policy, even though he agreed that they made sense, the evidence was properly excluded.

Finally, Soller claims the court erred by not giving her proposed self-defense instruction with regard to Satermo’s actions. In general, appellate review of jury instructions is limited. The submission of inadequate jury instructions requires reversal only if “it appears that the jury’s comprehension of the issues was so misguided that one of the parties was prejudiced.” In re CLDC Management Corp., 72 F.3d 1347, 1353 (7th Cir.1996) (citation omitted). When reviewing jury instructions, we construe them in their entirety to determine if “the instructions as a whole were sufficient to inform the jury correctly of the applicable law.” United States v. Villarreal, 977 F.2d 1077, 1079 (7th Cir.1992).

Soller asserts that she was proceeding on alternative theories under § 1983. One theory was that Moore shot Satermo, a nonthreatening, unarmed individual, who was attempting to flee. The other was that even if Moore shot Satermo because he was attacking him, Moore was not immunized from using deadly force under § 1983 because, in failing to act reasonably in identifying himself as a police officer, he created a physically threatening situation in the midst of a Fourth Amendment seizure. Soller argued to the district court that under her second theory of liability, the question of whether Moore or Satermo enjoyed the privilege of self-defense was the seminal issue to be decided by the jury. The district court rejected the self-defense instruction. It distinguished this case from Celmer v. Quarberg, 56 Wis.2d 581, 203 N.W.2d 45 (1973), a Wisconsin Supreme Court case relied upon by Soller.

Celmer involved an individual who was confronted by a police officer on watch at a farm suspected of cultivating marijuana. Id., 56 Wis.2d at 584, 203 N.W.2d 45. The officer deliberately disguised himself to blend into the narcotics subculture, and his true identity was unknown to that individual. As Celmer attempted to get in his car and leave the farm, the officer struck him in the head with the butt of his pistol. Id. at 586, 203 N.W.2d 45. Celmer was able to get in his car and drive away as the officer shot out two of his tires. Id. Celmer sued the officer under theories of excessive force (under § 1983) and common law negligence. The trial court dismissed the § 1983 claim, finding the officer had probable cause to arrest Celmer and that he had not used excessive force. Id. at 587, 203 N.W.2d 45. Only the negligence claim was submitted to the jury, which found that the officer was negligent in failing to identify himself in a reasonable manner. Id. at 588, 203 N.W.2d 45.

The court held that,

[w]hen a person has no reason to know the officer’s status or identity as a peace officer, and the officer has made a deliberate effort to conceal his identity, the officer must make a reasonable effort to inform the person of his status as an officer. In the instant case, the plaintiff was confronted with a person who had a pistol in each hand and because of his grooming and dress appeared to be a “crazed farmer.” Under the facts of this case, the plaintiff was entitled to resist and he had every right to flee from what appeared to be a serious attack upon him by another private citizen.

Id. at 589, 203 N.W.2d 45.

Celmer is easily distinguishable from this case. The evidence demonstrates that Moore, even though not wearing a police uniform, repeatedly identified himself as a police officer to both Satermo and Schwan. He did not act like the officer in Celmer who deliberately concealed his identity. The pivotal issue in our case is whether Moore used excessive force against Satermo. The trial court in Celmer found probable cause to arrest and no excessive force, dismissing Cel-mer’s § 1983 claim as a matter of law. The only remaining issue for the jury was whether the officer was negligent in failing to reasonably identify himself. In this case, giving an instruction on negligent identification and self-defense theories on the basis of this evidence might have been confusing to the jury. It was not one of the pivotal issues to be decided.

Furthermore, the jury instructions actually given as a whole correctly informed the jury of the applicable law. The jury was instructed on the law regarding § 1983 actions, Fourth Amendment protections against unreasonable seizures, and a police officer’s duty, in making an arrest or seizure, to use only such force as is necessary under the circumstances. More specifically, the jury was instructed that whether or not the force used was reasonable was to be determined in light of all the surrounding circumstances. Soller was able to argue to the jury that the surrounding circumstances included Moore’s failure to clearly identify himself and, therefore, his use of deadly force against Satermo was unreasonable. This was simply an excessive force case requiring the jury to objectively review the officer’s conduct in light of the surrounding circumstances. On this issue, the jury was properly instructed.

Because we have sustained the challenged rulings as discussed, we need not address the damage issue. The judgment of the district court is

AFFIRMED.


text:
    William E. LYNN, Plaintiff-Appellant, v. CSX TRANSPORTATION, INC., et al., Defendants-Appellees.
    No. 95-2240.
    United States Court of Appeals, Seventh Circuit.
    Argued Jan. 11, 1996.
    Decided May 24, 1996.

      Charles D. Boutwell (argued), McCullough, Campbell & Lane, Chicago, IL, for Plaintiff-Appellant.
    Paul V. Esposito, Douglas A. Lindsay, Lewis, Overbeck & Furman, Chicago, IL, Robert M. Rolfe (argued), J. G. Ritter, II, John E. Holleran, Hunton & Williams, Richmond, YA, for Defendants-Appellees.
    Lawrence Brewster, Department of Labor, Plan Benefits Security Division, Washington, DC, for Robert B. Reich, amicus curiae.
    Before ESCHBACH, COFFEY, and EVANS, Circuit Judges.
   TERENCE T. EVANS, Circuit Judge.

This case arises under the Employee Retirement Income Security Act. What William Lynn, the appellant, has at stake is the amount of his monthly pension check. At stake for the increasing number of companies offering early retirement programs to their employees is the immunity from suit they think they are contracting for as part of the deal. More specifically, this case presents the question of whether a release from liability signed by an employee in exchange for participation in an early retirement program is void in light of the anti-alienation provision of ERISA. With the question in mind, we turn to the facts.

Lynn worked for CSX Transportation and its predecessors for most of his adult life. He began working for the C & 0 Railroad in February of 1953 as a contract worker — a unionized employee working under a collective bargaining agreement. In May of that year he took a military leave of absence and entered the armed forces. In May of 1955, after being honorably discharged from the service, he went back to work at the company. From his return to the company until 1972, Lynn again worked on a contract basis, and was compensated with a daily or hourly rate of pay. In 1972, he was promoted to the position of assistant trainmaster, a nonunion job for which he earned monthly compensation. He continued as assistant trainmaster until 1987, when he retired under the company’s early retirement program.

In order to participate in the early retirement program, Lynn signed a “voluntary resignation agreement.” Under the agreement, Lynn’s pension is governed by the terms of the company’s 1987 pension plan. The 1987 plan provides a schedule according to which the amount of the pension payments due a plan participant is calculated. The schedule takes into account the retiree’s age and years of “credited service” to the company. “Credited service,” as defined by the plan, does not necessarily mean the total time a retiree was employed by the company. Rather, the term is used to describe the amount of time during which a person was both an employee of the company and a participant in the plan. The agreement provided that Lynn would receive an additional five years of service credit and an additional five years of age credit for purposes of the pension calculation. The agreement also included a release, which Lynn signed, agreeing to release the company from:

any and all claims, demands, and legal proceedings of whatsoever kind or nature arising under any pertinent federal, state, local laws, ordinances or administrative decisions which I or my heirs or my personal representatives may now have or may now or hereafter assert against the Company growing out of or resulting from my employment and/or resignation of employment with the Company, whether now known or unknown, including, but not limited to: all claims of any nature regarding age, race, sex, national origin, religion, handicap discrimination, or labor protective provisions or conditions; wrongful discharge; or a breach of contract whether express or implied.

After the agreement was signed, the company^ pension plan calculated the actual amount of Lynn’s pension benefits. The plan based this calculation on Lynn’s employment with the company plus the “five and five” early retirement provision. • The plan found that Lynn’s participation in the plan began when he became employed in a non-contract position paying monthly compensation. This occurred in 1972, when he was promoted to assistant trainmaster.

Lynn first contested the calculation of his pension in 1994, seven years after he retired. He claimed he should have received credit for the almost 20-year period during which he was a contract worker. He asked that the plan review his benefit calculation. The plan took a look at the situation but stood by its initial determination. Lynn filed an administrative appeal, which was denied, and he then filed a complaint under ERISA in the United States District Court for the Northern District of Illinois. In his complaint, Lynn argued that the calculation of his pension benefits should have included the years 1953 to 1972, and, for the first time, he also said he should have been given pension credit for his two years of military service. The company filed a motion for summary judgment.

Looking to the plain language of the plan documents, the district court upheld the plan’s determination that Lynn’s credited service began in 1972. The court declined, however, to reach the merits of Lynn’s claim for military service benefits, finding that this was a “contestable claim” barred by the release provision of the resignation agreement. Summary judgment was entered in favor of CSX on both counts, and Lynn appealed.

We review a district court’s grant of summary judgment de novo. Smith v. Shawnee Library System, 60 F.3d 317, 320 (7th Cir.1995). In performing this review, we must look not only to the language of the 1987 plan, but to those prior plans in effect during Lynn’s lengthy period of employment with the company. This is necessary because, with certain inapplicable exceptions, a new plan may not take away benefits which an employee holds under an existing plan. 29 U.S.C. § 1053. There are, therefore, three successive pension plans, and several amendments, involved here.- The plans are generally referred to according to their effective dates as the 1952 plan, the 1983 plan, and the 1987 plan.

The 1952 plan was open to all employees who were paid monthly compensation. In 1964, the plan was amended to exclude contract workers, though there was a grandfather clause for those contract workers who were already participating. The plan was again amended in 1968 to limit eligibility to those who were already participants. The 1983 and 1987 plans were open only to non-contract employees receiving monthly or annual compensation. All of the plans also contained military service clauses. These clauses differed only slightly between plans, and stated that a plan participant who left the company to enter the armed forces would receive pension credit for the period of military service if the participant returned to the company within 90 days of discharge from the military. These clauses ensured that employees who were plan participants were not penalized for serving in the armed forces.

Lynn argues that the district court erred in finding him ineligible for plan participation prior to his promotion in 1972. Whether he was eligible to participate in the plan before 1972 is purely a question of contract interpretation particularly suited for adjudication on a motion for summary judgment.

We start, obviously, with the plain language of the contract. In this case, that means looking to the plan documents. The 1952 plan defines those eligible to participate as those employees receiving “Compensation.” “Compensation” is defined as “remuneration paid on a regular monthly or annual basis, excluding ... wages or other remuneration paid on an hourly, daily, piecework, or mileage basis.” The 1983 and 1987 plans limit participation to nonunion, salaried employees, and expressly state that “a Participant who immediately prior to his Participation Commencement Date was an employee of the Company, but did not receive Compensation while so employed” will not receive pension credit for the prior period of employment. “Compensation” is defined in these plans as payment “on a regular salary basis” for work “that is not under the scope of a Labor agreement.” No real “interpretation” is required to see that, according to the plain language of the plan documents, Lynn was not eligible to participate in the plan until he was promoted to assistant trainmaster in 1972. It’s not even a close call. The plain language of the plans makes it crystal clear that credited service is only accrued while an employee is a plan participant.

Despite the plain language of the plan documents, Lynn contends that the district court erred in entering summary judgment against him on this issue. He bases this claim on a letter sent to employees of Ches-sie and Seaboard by John Collinson, president of Chessie System Railroads, in February of 1983. The letter referred to what became known as the 1983 plan, and informed employees that:

[ajffcer considerable study, Chessie and Seaboard have decided to adopt the same employee benefit program. While both railroads have made some adjustments, please be assured that you continue to have excellent employee benefits.
You are urged to review the attached highlights in detail, since they include some of the more significant changes. Specifics of the new plans are in the summary descriptions, also attached. They should be inserted in your blue benefits notebook for ready reference.

Lynn argues that this letter supports his claim for additional benefits. The argument runs like this: prior to this letter, Seaboard contract workers earning nonmonthly compensation were eligible to participate in the Seaboard plan; the letter from the president of the company said that Chessie and Seaboard were going to adopt “the same” employee benefit plan; the letter therefore constitutes a promise that Chessie’s contract workers earning nonmonthly compensation would be eligible to participate in the new pension plan, apparently on a retroactive basis and despite the plain language of the plan descriptions. This argument, we think, has no support in the law or the facts. It merits no discussion. The district court was correct to grant summary judgment against Lynn on the question of whether the pre-1972 years should be credited to him for the purpose of calculating his pension.

Lynn also asserts that the district court improperly quashed his subpoena of Charles Lockwood, a former employee who sued CSX. He seems to believe that Lockwood sued CSX on a theory related to the letter from Collinson, and that CSX chose to settle Lockwood’s claim. Lynn argues that his inability to conduct further discovery on this issue compels reversal. Even if Lynn is correct, however, that Lockwood received a settlement payment from CSX on a similar claim, his legal position is unchanged. Whether CSX chose to settle a previous claim by Lockwood has no bearing on the merits of Lynn’s legal argument. A settlement agreement is not a concession by a defendant that a claimant’s argument, legal or factual, has merit. There are many reasons why a defendant may choose to settle, and avoiding legal expenses is one of them. Even if CSX and Lockwood entered into a settlement agreement, however, and even if that agreement was an admission of the legal merit of a claim based on the Collinson letter, that admission was made by CSX. It was not ordered by a court. We have found that such a claim has no legal merit. The disposition of Lynn’s claim is governed by the unambiguous language of the plan documents. A settlement between CSX and Lockwood is irrelevant.

Lynn presents a much stronger argument in support of his position that the district court erred in refusing to consider the merits of his claim for military service credit. The district court held that the release Lynn signed as part of his voluntary resignation agreement barred consideration of this claim.

The district court based its determination that the claim was barred on two cases, Fair v. International Flavors & Fragrances, Inc., 905 F.2d 1114 (7th Cir.1990), and Licciardi v. Kropp Forge Emp. Retirement Plan, 990 F.2d 979 (7th Cir.1993), the facts of which are almost identical. Employees in these cases sued their employers, alleging discrimination on the basis of age, in the case of Licciardi, and sex, in the case of Fair. Both Licciardi and Fair were executive-level employees, represented by counsel during lengthy negotiations regarding settlement of their discrimination claims. Their settlement agreements provided for, among other things, large lump sum payments. Both settlement agreements also included releases of the companies from any liability related to the employment or discharge of the settling employees. Both Fair and Licciardi later sued their former employers, arguing that their lump sum settlement payments should have been included as earnings for purposes of pension benefit calculations. In Fair and Licciardi, the plaintiffs were found to have released the companies from all “contestable claims,” claims of which they either knew or should have known at the time they signed releases accompanying their settlements. The district court found that Lynn’s claim for military service credit was also a “contestable claim,” barred by the release under Fair and Licciardi.

Under the district court’s interpretation of these cases, the provisions of the release are in direct conflict with the anti-alienation provisions of ERISA. Title 29 U.S.C. § 1056(d)(1) states that “[e]ach pension plan shall provide that benefits provided under the plan may not be alienated or assigned,” and the coordinating section of the Internal Revenue Code states that “[a] trust shall not constitute a qualified trust under this section unless the plan of which such trust is a part provides that benefits provided under the plan may not be assigned or alienated.” 26 U.S.C. § 401(a)(13). The anti-alienation provision, however, “does not impose a bar on settlement agreements wherein pension claims are knowingly and intentionally resolved by employees. To apply the anti-alienation provision in [that way] would establish the untenable rule that ERISA prevents plaintiffs from ever entering into a settlement in a dispute over lost pension benefits.” Lumpkin v. Envirodyne Industries, Inc., 933 F.2d 449, 455 (7th Cir.1991).

Pension entitlements are, without exception, subject to the anti-alienation provision of ERISA. Patterson v. Shumate, 504 U.S. 753, 760, 112 S.Ct. 2242, 2247, 119 L.Ed.2d 519 (1992). Contested pension claims, on the other hand, are “simply outside .the realm of the provision.” Lumpkin, 933 F.2d at 456. The distinction between these two categories is a critical one, and, if the decision of the district court is any indication, one that has not yet been drawn with sufficient clarity. A pension entitlement arises under the terms of the pension plan itself. A contested pension claim, by contrast, arises under a settlement agreement. A release may prevent a plan participant from asserting claims based on a settlement agreement, but may not bar claims based on pension entitlements.

Our earlier cases have referred to claims arising under settlement agreements as “contestable.” We think “contested claim” may be a more accurate phrase, as the claims falling in this category are ones that have been contested, either actually or constructively. Where a claim was not previously contested, it has been considered a “contestable claim” if the claimant had actual or constructive knowledge of the claim at the time of signing the release. While this latter type of claim may also be described as “previously contestable,” in that it could have been contested and resolved at the time the release was entered into (but was not), such a claim has been constructively contested. A claim may be considered contested where a claimant knew of the claim at the time a dispute was settled. Whether the parties actually wrangled over a particular claim is not determinative. What matters is whether the claimant knew of the claim and knowingly relinquished it (relinquishment of course including failure to act or to raise the issue at all). While this difference in phrasing may seem minor, a review of the record in this case shows that our previous choice of words has led to confusion. “Contested claim” strikes us as the clearer, and therefore preferable, choice.

The Fair ease presents an excellent example of what we mean by a contested claim. After Fair sued her employer under a theory of sex discrimination, a settlement agreement was negotiated whereby Fair would receive a lump sum payment of $85,000, would stop reporting for work immediately, would be paid an increased salary for about a year and a half, and would then retire. A release was signed in connection with the settlement. Upon her retirement, Fair sued again, this time seeking to have the $85,000 payment included as earnings for the purpose of her pension calculation. We found that Fair had knowledge — actual or constructive — that the settlement payment would not be included in her pension calculation. This question (whether the settlement payment would be included) was a contested claim. Fair knew it was an issue at the time the release and settlement agreement were negotiated. She failed to include it in the release, and her failure to do so constituted a knowing waiver of that claim. Thinking itself bound by our decision in Fair, the district court held that Lynn’s military service claim was likewise barred by the release he signed.

We relied on a number of factors to find that Fair knew the pension treatment of the lump sum settlement payment was one of the issues on the bargaining table when she signed the release. Looking back on our articulation of those factors, it is easy to see why the district court found that they applied to Lynn as well. Fair, we said, must have known that her pension was at stake when she settled her claim, because the agreement called for her to retire in less than two years and to stop working immediately. Under the circumstances, “the parties certainly should have been aware of any impact the Settlement Agreement might have upon Fair’s impending retirement benefits.” Fair, 905 F.2d at 1116. We also noted that Fair had a copy of the summary plan description, which indicated that “special payments” were not ordinarily included in calculating pension benefits.

Looking to these criteria in isolation, it would seem that Fair and Lynn are in the same boat. Lynn, even more than Fair, should have known that the agreement he was signing would effect his retirement benefits — it was, after all, entitled “voluntary resignation agreement.” Lynn also had a copy of the summary plan description, which addresses the issue of military service credit. Looking beyond these initial similarities, however, we see that the positions of Lynn and Fair are more different than alike. Fair entered into a negotiated agreement in settlement of a potential lawsuit. Throughout the negotiations, she was represented and advised by counsel. In affirming the dismissal of her claims for increased pension benefits, we noted that “the terms of the settlement reflect the value to IFF of Fair’s absence and her withdrawal of the suit,” and we “refuse[d] to give Fair for free what she evidently declined to purchase at the settlement negotiations for a price.” Comparing Fair’s situation to Lynn’s, we see that Lynn didn’t have a lawyer. He never sat down at the bargaining table, much less negotiated the “purchase price” of anything. He signed a standard form. To impute to him the same level of knowledge as we did to Fair would seem inappropriate given the marked disparity in the circumstances under which they signed the releases. The two indicia of knowledge cited in Fair are relevant, but not conclusive. In determining whether a retiree knowingly relinquished a claim, the court must look to all of the circumstances to determine what the claimant knew or reasonably should have known. By making this determination on an individual basis, the court will best effectuate the underlying protective aims of ERISA.

We turn now to a central distinction between this case and its predecessors. Lynn is not asking the court here to interpret the language of the resignation agreement; everyone agrees on what it says. Under the terms of the resignation agreement, Lynn is entitled to “retirement payments in accordance with section 4.02(a) of the CSX Transportation, Inc. Pension Plan.” Here is where the similarity between this case and Fair and Licciardi evaporates completely. Fair and Licciardi both argued that they were entitled to additional pension benefits under the terms of their settlement agreements. They were asking the court to interpret, not the language of their pension plans, but the language of the agreements they had entered into. Lynn, by contrast, is asking the court to interpret the pension plan itself. “The release did not affect [his] incontestable pension rights; it did affect, as in Fair, contestable claims based on ambiguous terms in the ... agreement.” Licciardi, 990 F.2d at 982 (emphasis added). Lynn does not claim the agreement is ambiguous. He does not ask the court to interpret its terms. He seeks to protect military service benefits to which he believes he is entitled under the terms of the plan. We take no position on whether he is correct in this belief; that determination can only be made after consideration of his claim on the merits, and we leave it to the district court on remand. In short, it may well be that Lynn has no claim for his two years of military service, but it must be the plan which dictates that result, not the release.

Affirmed in part, and reversed and remanded in part. No costs are awarded.

      . The Chesapeake & Ohio Railroad (C & O) was a predecessor of appellee CSX. In the mid-seventies, C & O became a Subsidiary of the Chessie System Railroads. In 1980, Chessie merged with the Seaboard Coast Line Railroad Company to form the CSX Corporation. We refer to these different entities collectively as "the company.”

      . In ordinary language, “monthly compensation” means a salary, and "nonmonthly compensation” means payment on the basis of time worked or tasks completed (for example, hourly wages or piecework). We use these terms instead of the corresponding, and more familiar, “salary” and "wages” for the sake of consistency with the language of the pension plans under which this dispute arose.

      . Title 29 U.S.C. § 1132 provides that "[a]n employee benefit plan may sue or be sued under this title as an entity,” § 1132(d)(1), by a participant or beneficiary to recover benefits due, to enforce or clarify his rights, § 1132(a)(1)(B), or to obtain "other appropriate equitable relief,” § 1132(a)(3)(B), without regard to the amount in controversy or the citizenship of the parties, § 1132(f).


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Julio ORTIZ and Manuel Hurtado, Defendants-Appellants.
    Nos. 95-1386, 95-1869.
    United States Court of Appeals, Seventh Circuit.
    Argued April 11, 1996.
    Decided May 24, 1996.

      Matthew L. Jacobs (argued), Thomas P. Schneider, Office of the U.S. Atty., Milwaukee, WI, for the U.S.
    David J. Cannon (argued), Michael, Best & Friedrich, Milwaukee, WI, for Julio Ortiz.
    Michael J. Edmonds (argued), Milwaukee, WI, for Manuel Hurtado.
    Before BAUER, CUDAHY, and EVANS, Circuit Judges.
   TERENCE T. EVANS, Circuit Judge.

Manuel Hurtado and Julio Ortiz were arrested on September 7, 1991, in connection with a distribution of heroin charge. Ortiz, however, was released by the arresting officers shortly after being stopped. Hurtado was less fortunate; he was taken into custody.

Three days after the arrest, on September 10, 1991, Ortiz and Hurtado were charged in an indictment alleging conspiracy to possess heroin with intent to distribute and the actual distribution of 5 ounces of heroin. An arrest warrant was issued for Ortiz, but Hur-tado, who was still in custody, immediately faced the music. A few months later, Hurta-do pled guilty to the conspiracy charge. He was sentenced to serve a term of 62 months.

Meanwhile, Ortiz remained on the lam until he was apprehended on the outstanding warrant almost three years later in August of 1994. His case proceeded to trial in the fall of 1994 and Hurtado, still serving his sentence, was produced in court to offer testimony on the government’s behalf. The government secured an order immunizing Hurtado and compelling his testimony in connection with the prosecution of Ortiz. Hurtado was ordered by the district judge, under 18 U.S.C. § 6002, to answer questions and otherwise provide evidence without asserting his privilege against self-incrimination. After answering a few questions, Hurtado generally refused to talk, and he left the stand without fully complying with the order of the district judge. Although Hurtado did not help the government, he didn’t do much good for Ortiz either, as the jury found him guilty of both the conspiracy and substantive heroin charges in the indictment.

With its victory over Ortiz secured, the government again turned its fire on Hurtado by filing an application for notice of prosecution for criminal contempt pursuant to Rule 42(b) of the Federal Rules of Criminal Procedure. The notice sought to bring Hurtado to heel for his disobedience of the court’s order to give testimony during Ortiz’s trial. The district court entered a notice of prosecution for criminal contempt and an order to show cause requiring Hurtado to answer the charge and demonstrate why he should not be punished. Hurtado waived his right to a jury trial on the issue and stipulated that the court could enter a finding of criminal contempt under 18 U.S.C. § 401(3). Hurtado was then adjudged guilty of criminal contempt and later he and Ortiz were sentenced, with Ortiz catching a term of 78 months and Hurtado drawing a 37-month term to run consecutive to the time he still owed on the underlying heroin conspiracy conviction. Ortiz and Hurtado both appeal, raising narrow issues for our review. Hurtado only challenges the sentence he received for contempt, and Ortiz only complains about the denial of a motion to suppress evidence seized at the time of his original arrest back in September of 1991. We turn first to the issue raised by Hurtado.

Although the potential for the issuance of a criminal contempt citation lurks in every ease, they are not the usual grist of the district court. They are, in fact, rare proceedings indeed, which explains why everyone here — the prosecutor, Hurtado’s attorney, and the judge — were a bit uncertain about how the law was to be applied. When Hurtado declined to testify as ordered (he did respond to some questions, and in one answer, much to the delight of the government we suspect, he actually said he knew Julio Ortiz and recognized him in court) he was told he faced the potential of a charge of criminal contempt. Hurtado’s lawyer and the prosecutor thought the potential penalty “might be up to six months” but the judge said it could be limitless and that “this type of offense is not governed by the guidelines.” Hurtado, a Mexican with a sixth-grade education who didn’t speak English (he had an interpreter), was, it appears, totally befuddled.

When Hurtado admitted the charge and consented to the entry of the finding of contempt, he and his lawyer had the following exchange:

Counsel: Manuel, do you remember that the judge told you just a few moments ago that he does not believe that this case is governed by the sentencing guidelines?
Hurtado: Yes.
Counsel: Do you remember me telling you that I disagree with the judge and I believe that this case is governed by the guidelines?
Hurtado: Yes, you told me.

The attorney then told Hurtado that the judge had given him “an opportunity to write a brief in an attempt to convince him that the guidelines apply.” Hurtado said “yes” to a question which asked if he understood that there is “no guarantee that I will be able to convince the judge that the guidelines apply.”

Hurtado’s lawyer must have done some persuasive convincing because two months later, when the case returned to court for sentencing, everyone assumed the guidelines applied. Applying the guidelines resulted in a sentencing range of 37 to 46 months. A 37-month sentence was selected.

The federal sentencing guidelines do not specify a base offense level for criminal contempt. But the guidelines, nevertheless, apply to the charge. This, of course, is not to be confused with summary criminal contempt where a judge may punish quickly a contemptuous act committed in her presence. See Rule 42(a) of the Federal Rules of Criminal Procedure. As we noted earlier, the proceedings here were under Rule 42(b).

Chapter 2 of the guidelines, the chapter relating to offense conduct, contains part J, which concerns offenses involving the administration of justice. Section 2J1.1 deals with “contempt,” but it’s not helpful for it simply says “[ajpply § 2X5.1 (Other Offenses).” Section 2X5.1 tells the sentencing judge that “[i]f the offense is a felony or Class A misdemeanor for which no guideline expressly has been promulgated, apply the most analogous offense guideline.” The government and Hurtado part company on the question of what is the “most analogous” offense to Hur-tado’s conduct of criminal contempt. Hurta-do argued that the “most analogous” offense was “Failure to Appear by Material Witness” under § 2J1.5, which carries a base offense level of 6 (a 3-level increase can be ordered if a “substantial interference with the administration of justice” occurs) when the failure to appear relates to a felony. The government argued that Hurtado’s conduct was an obstruction of justice — in the prosecution of Ortiz — and therefore § 2J1.2 was the most analogous provision. The correct application of § 2J1.2, the government said, required a cross-reference under subsection (c), which provides:

If the offense involved obstructing the investigation or prosecution of a criminal offense, apply § 2X3.1 (Accessory After the Fact) in respect to that criminal offense ....

The base offense level for Accessory After the Fact, § 2X3.1, depends on the offense level for the underlying offense. It says:

Base Offense Level: 6 levels lower than the offense level for the underlying offense, but in no event less than 4, or more than 30. Provided, that where the conduct is limited to harboring a fugitive, the offense level shall not be more than level 20.

The district judge agreed with the government and applied the Accessory After the Fact guideline. He pegged the “underlying offense” as the heroin distribution charge against Ortiz, which carried a base offense level of 26. Hurtado’s base offense level then was set 6 levels lower, at 20.

The critical question here is whether Hurtado’s offense of contempt is more like a failure to appear as a material witness or more like an accessory after the fact. Either offense, in a manner of speaking, is an obstruction of justice as that term is generally understood.

The application note to § 2J1.1 of the guidelines-Contempt — says:

Because misconduct constituting contempt varies significantly and the nature of the contemptuous conduct, the circumstances under which the contempt was committed, the effect the misconduct had on the administration of justice, and the need to vindicate the authority of the court are highly context-dependent, the Commission has not provided a specific guideline for this offense. In certain cases, the offense conduct will be sufficiently analogous to § 2J1.2 (Obstruction of Justice) for that guideline to apply.

The district court looked to U.S.S.G. § 2J1.2, Obstruction of Justice, and opined that “the defendant’s conduct did constitute obstruction of justice in the prosecution of a criminal case against Mr. Ortiz.” Citing § 2J1.2(c)(l), the district court imposed the sentence pursuant to § 2X3.1 (Accessory After the Fact), stating:

This is based in part upon the commentary and because the court feels that the conduct of this defendant in this court to which he has entered a plea of guilty was an effort to avoid punishment for an offense that would have and did in fact place the other defendant in a position where he may have escaped punishment but for the credibility of the officers involved.

We think the employment of the accessory after the fact analogy, on the facts of this case, was error. Hurtado’s actions at the trial of Ortiz, although somewhat analogous to obstructing justice, is not very close to acting as an accessory after the fact. Failure to Appear by Material Witness, § 2J1.5 of the guidelines, is, we think, a much better fit.

Title 18, U.S.C. § 3, provides that “[w]ho-ever, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact.” Hurtado neither received, relieved, comforted, nor assisted Julio Ortiz. Having been arrested himself, it was impossible for Hurtado to “receive” Ortiz. His post-arrest statements to the police (we’ll see what he said when we discuss the motion-to-suppress issue) cannot be said to have provided Ortiz with relief, comfort, or assistance. Actually, the assistance Hurtado provided was entirely to the government, not Ortiz. He gave Ortiz no help whatsoever.

Obstruction of Justice (sec.2J1.2) is not the best guideline either, especially when the whole case is considered. There are no overt acts in the record which indicate that Hurta-do intended to obstruct justice, beyond his refusal to testify. Furthermore, there is no evidence that he actually obstructed justice. In this regard, the case is similar to the situation faced by a district court in United States v. Herre, 731 F.Supp. 1051 (S.D.Fla.1990).

In Herre, the defendant was convicted of one count of criminal contempt, pursuant to 18 U.S.C. § 401(3), for refusing to testify, with immunity, before a grand jury as ordered by the court. At sentencing the government contended that U.S.S.G. § 2J1.2, Obstruction of Justice, was the applicable guideline. The defendant argued that U.S.S.G. § 2J1.5, Failure to Appear by a Material Witness, was applicable. The court rejected the government’s argument, noting that the only conduct at issue was the defendant’s failure to testify. The court placed the burden of proof on the government:

If the Government believes that the obstruction of justice guideline applies, then it must, at a minimum, point to specific acts by the Defendant resulting in the obstruction of justice, or otherwise show that the Defendant’s conduct was designed to interfere with the administration of justice.

Herre, 731 F.Supp. at 1053. The court noted that the government had shown neither.

In our case, the only act at issue is Hurta-do’s refusal to fully testify. It’s true he said (through an interpreter) that he didn’t “remember” if Ortiz ever sold him anything, but that snippet of testimony was rather inconsequential as was his testimony that he refused to cooperate and meet with the attorney for Mr. Ortiz. All in all, there is nothing to truly indicate that Hurtado’s refusal to testify was designed to assist Ortiz in escaping punishment. On the contrary, without Hurtado’s statements on the day of his arrest, the government would not have been able to charge Ortiz. Furthermore, Hurtado admitted during his brief appearance on the stand at Ortiz’s trial that he was arrested on September 7, 1991, after selling heroin to an undercover federal agent. He identified the agent to whom he had sold the heroin, thus bolstering the agent’s testimony. Finally, he indicated he knew Ortiz and identified him for the jury. These statements assisted rather than hindered the prosecution of Ortiz. In sizing up the whole picture, Hurtado did not, at the trial, help convict Ortiz, but he certainly didn’t try to help get him acquitted either.

In the one case we have found where a court applied the obstruction of justice guideline to a conviction for contempt, the conduct was much more egregious than Hurtado’s here. In United States v. Remini, 967 F.2d 754 (2d Cir.1992), the defendant refused to testify, notwithstanding a grant of immunity, at the trial of Thomas Gambino, an organized crime figure from New York. Remini was convicted of contempt in violation of 18 U.S.C. § 401(3). The trial court applied U.S.S.G. § 2J1.2, Obstruction of Justice, and sentenced him to 16 months. On appeal, the defendant argued that the proper guideline was U.S.S.G. § 2J1.5, Failure to Appeal by a Material Witness. The court of appeals rejected the defendant’s argument and affirmed the district court.

In rejecting Remini’s arguments, the Second Circuit noted that the trial court based its use of the guideline for obstruction on a taped conversation of convicted mob boss John Gotti, who told a third party that he instructed his lawyers to “[g]et my cell ready, get Joe Butch’s cell ready; and get Fat Georgie’s [Remini’s] cell ready. And nobody is taking the stand. Tell them to go fight! Don’t worry about it.” Remini, 967 F.2d at 756. Clearly, Remini intended to obstruct the Gambino trial. He succeeded. The Gambino trial ultimately resulted in an acquittal. Remini’s conduct, we think, was far more egregious than Hurtado’s, and his sentence — 16 months — was 21 months shorter.

Hurtado’s case is more analogous to that of the defendant in United States v. Underwood, 880 F.2d 612 (1st Cir.1989). Underwood was convicted of contempt under 18 U.S.C. § 402 for his refusal to testify against a codefendant after having been granted immunity. The trial court imposed a 3-year sentence. The First Circuit vacated the sentence and remanded the case, concluding that “there is no applicable sentencing guideline” for contempt and that therefore the “plainly unreasonable” standard of review, 18 U.S.C. § 3742(e)(4), must be employed. Id. at 619. By analogizing the situation to the guidelines, however, the First Circuit found that § 2J1.5, Failure to Appear by a Material Witness, was a good fit. In declining to employ the obstruction guideline, the court noted that the district court found that the defendant “did not intend to ‘obstruct justice;’ he simply intended not to testify. In that sense, he intended only to ‘fail to appear’ as a ‘material witness’_” Id. at 620.

The same is true of Manuel Hurtado — he did not intend to obstruct justice. He simply did not wish to testify. As noted during his sentencing, Hurtado didn’t want to be known as a “snitch or an informer.” He wasn’t trying to aid Ortiz as an accessory after the fact. His sentencing range should have been set under the Failure to Appear by a Material Witness guideline (sec. 2J1.5). This is not to say that the failure to appear guideline must be used by analogy in all cases involving criminal contempt citations stemming from a failure to testify. In some situations, the use of other guidelines — obstruction of justice and accessory after the fact, to name two — might be better fits. They’re not good fits here.

Another reason exists for rejecting accessory after the fact as a good-fit analogy in this case. Its base offense level — a 20 under the guidelines — is seriously out of kilter with Hurtado’s offense. A base offense level of 20, for someone without a criminal record, results in a sentencing range of 33-41 months. The mid-point of the range exceeds three years, without parole. That’s a mighty stiff sentence to visit on someone who has sinned as Hurtado has. In fact, base offense levels of 20 are used for persons convicted of serious offenses like aggravated assault with serious bodily injury (sec. 2A2.2(b)(3)(B)), theft of more than $5 million (sec. 2Bl.l(b)), and the importation of a quarter of a kilo of cocaine (see. 2Dl.l(c)(10)). When compared to these transgressions, Hurtado’s decision to clam up seems fairly tame. For these reasons, Hurtado must be resentenced.

The last issue, unfortunately for Ortiz who raises it, has little merit. To frame the issue, we return (very briefly) to September 7, 1991, the day Hurtado and Ortiz were arrested.

As part of an undercover operation, police (actually the DEA and the Bureau of Alcohol, Tobacco and Firearms) purchased a small sample of heroin from Hurtado. The purchase of additional, larger quantities of heroin was discussed. Hurtado said he had a new source of supply in Chicago, and he agreed to make a transfer to the undercover agents on September 7 in the parking lot of a Shell gas station in Racine, Wisconsin. During this transaction, Hurtado supplied the agents with five ounces of heroin. Hurtado was arrested and immediately agreed to cooperate in the investigation. He identified his source of supply as a Mexican fellow from Illinois known to him as “Julio.” He gave the agents Julio’s electronic pager number, which reflected a Chicago-area telephone number. He also gave the agents a physical description of Julio and they began calling the pager number, eventually making a connection. Hurtado, at the agents’ request, spoke with “Julio” and arranged a meeting to obtain more heroin. The meeting was to take place later that day in the parking lot of a McDonald’s restaurant in the Chicago area. Hurtado stated that Julio would be driving a blue Buick and that the meeting would take place in approximately an hour and a half.

Based on this information the agents traveled to the parking lot near Chicago and soon observed a blue Buick driven by a man matching the description of “Julio.” According to the agents, the driver of the automobile drove around the parking lot two or three times, left the parking lot, and then drove around a second parking lot. With the assistance of deputies from the Cook County sheriffs department, the Buick was stopped and the driver was asked if he was “Julio.” The driver, who of course turned out to be Julio Ortiz, said yes.

The officers asked Ortiz to get out of the car and patted him down for weapons. Ortiz was then placed in handcuffs and moved to the front of his vehicle. At the front of the car, the agents searched Ortiz and found an electronic pager, which was seized. While looking for drugs in the car, the officers pried open two concealed compartments in the rear area of the vehicle, and inside one they found a loaded .25 caliber Beretta pistol.

After the gun was found, one of the agents noticed that Ortiz’s wristwatch was also an electronic data bank capable of storing telephone numbers. The agent recognized this function of the watch because he owned a similar electronic telephone directory. The agents removed the wristwatch/eleetronic telephone directory from Ortiz’s wrist and retained it as evidence.

While still at the parking lot, one of the agents pushed a button on Ortiz’s digital pager, which revealed the numeric messages previously transmitted to the pager. Among the digital messages recovered was the telephone number of the phone at the Shell gas station in Racine where the agents called the pager number provided by Hurtado.

Although collecting and seizing various items from Ortiz and his vehicle, things like the electronic pager, the wristwatch/electronic telephone directory, and the Beretta pistol with two loaded ammunition magazines, the agents didn’t find any heroin so Ortiz was released from custody. The following day, the agents retrieved various telephone numbers stored in Ortiz’s wristwatch.

After his arrest, Ortiz filed a motion to suppress everything seized from his person and vehicle. Magistrate Judge Goodstein held an evidentiary hearing on the motion and recommended to the district court that the motion be denied, except for the retrieval of information from Ortiz’s watch, which was not seized until the next day. The district court adopted the recommendation.

We review the denial of a motion to suppress for clear error. United States v. Patterson, 65 F.3d 68, 70 (7th Cir.1995). “A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made.” Id. The district court here did not clearly err in denying Ortiz’s suppression motions: the search of the vehicle was conducted pursuant to the automobile exception to the warrant requirement, and the information from the pager was properly seized incident to a valid arrest.

Under the “automobile exception” to the warrant requirement of the Fourth Amendment, law enforcement officers may search an automobile without a warrant when they have probable cause to believe that the vehicle contains contraband or evidence of criminality. Chambers v. Maroney, 399 U.S. 42, 52, 90 S.Ct. 1975, 1981-82, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 153-56, 45 S.Ct. 280, 285-86, 69 L.Ed. 543 (1925); Patterson, 65 F.3d at 70. The scope of the search may “extend[ ] to all parts of the vehicle in which contraband or evidence could be concealed, including closed compartments and trunks.” United States v. Young, 38 F.3d 338, 340 (7th Cir.1994).

In this case, the magistrate judge found that the search of Ortiz and his Buiek was legal because the officers clearly had probable cause to believe he was a heroin supplier and had driven to the McDonald’s to conduct a drug transaction. Because the search was based on probable cause, the scope of the search could extend to any part of the vehicle capable of concealing narcotics or other evidence of drug dealing, including the hidden compartment from which the officers seized the pistol (and some ammunition).

Ortiz’s very able counsel on appeal contends that the district court clearly erred in denying the motion to suppress the pistol because, at the time of the search, it was not within his “wingspan” and no exigency existed which vitiated the necessity of obtaining a search warrant. We cannot accept this claim.

Ortiz’s argument tries to tiptoe past the automobile exception to the Fourth Amendment’s warrant requirement. The “wingspan” argument would only be applicable if the officers lacked probable cause to believe Ortiz’s Buick contained drugs. See, e.g., United States v. Evans, 994 F.2d 317, 322 (7th Cir.), cert. denied, — U.S. -, 114 S.Ct. 335, 126 L.Ed.2d 280 (1993). Under the automobile exception to the Fourth Amendment’s warrant requirement, the district court’s denial of the motion to suppress the pistol was not clearly erroneous.

Ortiz also argues that the district court clearly erred by refusing to suppress information the officers retrieved from the pager. He says the analysis applied by the magistrate judge to recommend suppressing the information retrieved from the wristwatch should have been applied to the information retrieved from the pager. But the information from the pager was admissible because the officers conducted the search of its contents incident to the arrest. The magistrate judge applied a different analysis to the information from the wristwatch because it was not retrieved “contemporaneous with Ortiz’s arrest.”

While few reported decisions have addressed this issue, the court’s decision allowing the activation of the pager and retrieval of the information incident to arrest is consistent with established Fourth Amendment precedent.

In United States v. Chan, 830 F.Supp. 531, 533 (N.D.Cal.1993), DEA agents seized a pager from the defendant at the time of arrest and searched its contents by activating its memory and retrieving telephone numbers. The defendant argued that activation of the pager was a search requiring a warrant because the pager was a container as to which he had a reasonable expectation of privacy. Id. The court found that the possessor of a pager has an expectation of privacy in the data contained therein in the same manner as an individual in possession of a closed container. Id. at 534-535. The court ruled, however, that the search of the pager was legal under cases which permit the search of containers found on or near the arrestee in a search incident to arrest. See New York v. Belton, 453 U.S. 454, 461, 101 S.Ct. 2860, 2864-65, 69 L.Ed.2d 768 (1981).

The defendant in Chan also argued that under United States v. Chadwick, 433 U.S. 1, 12-13, 97 S.Ct. 2476, 2484-85, 53 L.Ed.2d 538 (1977), a warrant is required to search the contents of closed containers when an individual has a heightened expectation of privacy in its contents. The Chan court appropriately recognized that Chadwick’s protections are not so broad:

The Court in Chadwick adopted a narrow exception to the incident to arrest doctrine, holding that a warrantless search of seized property cannot be justified when the search is remote in time or place from the arrest. Chadwick, 433 U.S. at 13-15, 97 S.Ct. at 2485. As the Supreme Court explains:
Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest.

Chan, 830 F.Supp. at 535. Chan found that the retrieval of telephone numbers from a pager’s memory immediately upon arrest is not so “remote” from the arrest that it falls within the exception of Chadwick. Id. We agree with this analysis.

An officer’s need to preserve evidence is an important law enforcement component of the rationale for permitting a search of a suspect incident to a valid arrest. See United States v. Robinson, 414 U.S. 218, 226, 234-35, 94 S.Ct. 467, 472-73, 38 L.Ed.2d 427 (1973). Because of the finite nature of a pager’s electronic memory, incoming pages may destroy currently stored telephone numbers in a pager’s memory. The contents of some pagers also can be destroyed merely by turning off the power or touching a button. See, e.g., United States v. Meriwether, 917 F.2d 955, 957 (6th Cir.1990). Thus, it is imperative that law enforcement officers have the authority to immediately “search” or retrieve, incident to a valid arrest, information from a pager in order to prevent its destruction as evidence. The motion to suppress was properly denied.

For these reasons, the conviction of Ortiz is affirmed and the sentence of Hurtado is vacated. Hurtado’s case is remanded to the district court where he should be resen-tenced consistent with this opinion.