Caseflicks

Court of Appeals for the Seventh Circuit • 1988

Sherrod v. Berry

856 F.2d 802 | 1988 WL 92583

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Takeaway

In short, the en banc majority held that an excessive-force jury generally must judge an officer using only the information available when force was used, not the later-discovered fact that the suspect was unarmed.

Background

After a report of a robbery or “sneak theft” near Ziggy’s Plant and Gift Shop in Joliet, Officer Willie Berry stopped a Cadillac driven by Ronald Sherrod. Berry recognized the passenger, Gary Duckworth, and believed he matched the robbery suspect’s description. Berry and his partner drew their weapons and ordered the occupants to raise their hands. Berry testified that Sherrod then made a quick movement into his coat, appearing to reach for a weapon. Berry fired and killed Sherrod.

Sherrod’s father brought a 42 U.S.C. § 1983 action against Berry, the City of Joliet, and the police chief, alleging unconstitutional use of deadly force, deficient city policies and training, and a deprivation of familial rights. Over the defendants’ objection, the district court admitted evidence that a post-shooting search found Sherrod unarmed. The jury found for the plaintiff and awarded $1,601,700. After an earlier panel decision affirming the verdict was vacated, the Seventh Circuit reheard the case en banc.

Issues

Issue #1

Whether evidence that Sherrod was unarmed after the shooting was relevant to whether Officer Berry’s use of deadly force was objectively reasonable under the Fourth Amendment.

Holding

No. Except where it contradicts an officer’s testimony that the officer saw an actual weapon or weapon-like object, post-shooting evidence that the suspect was unarmed is irrelevant to the objective reasonableness inquiry.

Reasoning

The Fourth Amendment inquiry asks whether the officer acted with objective reasonableness under the circumstances. For this purpose, the relevant circumstances are the facts and information known to the officer when the officer made the split-second decision to use force, not facts discovered later.

Berry testified only that he saw Sherrod make a quick movement into his coat, as though reaching for a weapon. He did not testify that he actually saw a gun, knife, shiny object, or other weapon in Sherrod’s hand or clothing. The later discovery that Sherrod had no weapon therefore did not contradict Berry’s account of what he observed.

The jury must determine whether Berry reasonably interpreted the movement, the reported crime, and the other information available to him as creating an imminent threat. Allowing the jury to consider facts unavailable to Berry would improperly equip it with hindsight and invite it to judge his decision on information he could not have possessed.

Issue #2

Whether the district court’s admission of the evidence that Sherrod was unarmed required reversal.

Holding

Yes. The evidence was both irrelevant and unfairly prejudicial, so its admission required a new trial.

Reasoning

The evidence created a substantial danger that the jury would infer that Berry acted unreasonably simply because Sherrod turned out to be unarmed. That inference does not follow under the governing standard, because an officer may reasonably act on an apparent danger even if the perceived danger later proves mistaken.

The court did not announce a categorical rule barring evidence about whether a suspect was armed. Such evidence may be admissible to impeach an officer who claims to have actually seen a weapon or weapon-like object. But where, as here, the officer claims only to have seen a suspicious movement, the absence of a weapon neither disproves the observation nor bears on the reasonableness inquiry as properly framed.

Because the erroneous admission of the unarmed-status evidence could have led the jury to decide liability on an improper hindsight-based ground, the court reversed the judgment and remanded for a new trial. The court did not reach the remaining challenges to evidentiary rulings and jury instructions.

Concurrences

Judge Ripple

Reasoning

Judge Ripple agreed that a new trial was necessary, but he would have rested the reversal on instructional error rather than on the majority’s evidentiary analysis. In his view, the district court wrongly refused the defendants’ proposed instruction No. 10 and gave the plaintiff’s instruction No. 28.11.

On the weapon-evidence question, Judge Ripple substantially agreed with Judge Cummings’s position. He thus rejected the majority’s conclusion that the proof Sherrod was unarmed was irrelevant to the case.

Dissents

Judge Cummings

Reasoning

Judge Cummings, joined by Judge Cudahy, maintained that the majority portrayed the facts too favorably to Berry. The dispatch characterized the underlying incident as a nonviolent sneak theft, not an armed robbery; Sherrod promptly stopped his car; and Berry’s partner did not regard Sherrod’s movement as threatening. Cummings also stressed evidence that Berry departed from safer felony-stop procedures and thereby created the danger he later claimed to perceive.

In Cummings’s view, evidence that Sherrod was unarmed was relevant under Rule 401 because it could help the jury assess the competing and confusing accounts of Sherrod’s movement into his coat. The absence of a gun made some versions of the encounter more plausible than others and thus bore on the credibility and observational reliability of Berry’s testimony.

Cummings further rejected the majority’s narrow definition of impeachment. Evidence need not directly prove that a witness stated an outright falsehood to weaken the witness’s credibility; the absence of a weapon could make it less likely that Berry genuinely and reasonably perceived an immediate threat, even if it did not conclusively establish that Berry lied.

At minimum, Cummings concluded, the district court did not clearly abuse its broad discretion in admitting the evidence. He also argued that the defendants waived any Rule 403 unfair-prejudice objection because they objected on relevance grounds but never specifically asked the trial court to exclude the evidence as substantially more prejudicial than probative.

Judge Flaum

Reasoning

Judge Flaum agreed with neither the majority’s irrelevance ruling nor its judgment ordering a new trial. He concluded that the fact Sherrod was unarmed satisfied Rule 401’s broad relevance standard because it could assist the jury in evaluating conflicting testimony about Sherrod’s movement and Berry’s asserted perception of danger.

Nevertheless, Judge Flaum believed that the evidence should have been excluded under Rule 403 if the defendants had properly raised that ground. In his view, the evidence had limited probative value but carried a serious risk that the jury would decide the case emotionally or with improper hindsight from the fact that the victim was unarmed.

Because the defendants never specifically objected under Rule 403, the district court had no occasion to perform that balancing analysis. Judge Flaum considered the argument waived on appeal and would therefore leave the jury’s verdict intact despite his view that the evidence was unduly prejudicial.