196 F.3d 762 (7th Cir. 1999), 99-1783, United States v. Bradley

Docket Nº:99-1783, 99-2108
Citation:196 F.3d 762
Party Name:United States of America, Plaintiff-Appellee/Cross-Appellant, v. Adolph Bradley, Defendant-Appellant/Cross-Appellee.
Case Date:November 04, 1999
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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196 F.3d 762 (7th Cir. 1999)

United States of America, Plaintiff-Appellee/Cross-Appellant,

v.

Adolph Bradley, Defendant-Appellant/Cross-Appellee.

Nos. 99-1783, 99-2108

United States Court of Appeals, Seventh Circuit

November 4, 1999

Argued September 8, 1999

Appeal from the United States District Court for the Southern District of Illinois. No. 98 CR 30149 PER--Paul E. Riley, Judge.

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[Copyrighted Material Omitted]

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Before Posner, Chief Judge, and Bauer and Ripple, Circuit Judges.

Bauer, Circuit Judge.

A jury convicted former police officer Adolph Bradley ("Bradley") on one count of willfully depriving a person of constitutional rights under color of law in violation of 18 U.S.C. sec. 242. After a sentencing hearing, the district court granted Bradley's motion for a downward departure and sentenced Bradley to three years probation,

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300 hours of community service, and restitution. Bradley now appeals his conviction and the government appeals the downward departure. For the following reasons, we affirm Bradley's conviction, vacate Bradley's sentence, and remand the case for resentencing.

I. BACKGROUND

The facts of this case read like something out of a "Dirty Harry" movie. In this case, Bradley played the role of Dirty Harry--out to clean up the streets of Brooklyn--Brooklyn, Illinois, that is. Bradley is a 72 year old man who has spent more than forty years of his life working as a law enforcement officer in small towns throughout southern Illinois. His lengthy career as a police officer even included a stint as the Chief of Police in Brooklyn, Illinois, the town which provides the setting for this case. Up until the events that led to Bradley's criminal prosecution and conviction, Bradley had enjoyed a good reputation as a police officer and had strong ties with members of the communities in which he worked.

On June 30, 1998, Bradley was a police officer with the Brooklyn, Illinois Police Department and began working the 11:00 p.m. to 7:00 a.m. shift with his partner, officer Khalid Ashkar ("Ashkar"). That night, Bradley and Ashkar were patrolling the streets of Brooklyn in an unmarked black Chevrolet Caprice that had police emergency lights on the inside front and rear dashboards of the car, but otherwise resembled a civilian car. This car ordinarily served as the Deputy Chief's personal vehicle and was not typically used for road patrol; however, because the Brooklyn Police Department's marked police cars were in disrepair, Bradley and Ashkar were assigned to the Deputy Chief's automobile. Ashkar was driving the unmarked police car. Bradley was armed with a six-inch Smith & Wesson .357 magnum revolver loaded with hollow point bullets.

On the morning of July 1, 1998 at about 5:30 a.m., a 60 year old resident of southern Illinois named Roosevelt Marshall ("Marshall") was driving his 1984 Dodge Aries station wagon from his home in Lovejoy, Illinois to his job at the Cahokia, Illinois School District. While on patrol, Bradley and Ashkar observed Marshall's station wagon roll through a stop sign and decided to stop the station wagon for this traffic violation. Ashkar and Bradley began following the station wagon and activated the red emergency light on the front dashboard of their unmarked car. Marshall continued driving at a speed of about 25 miles per hour and did not stop. Later Marshall said he did not recognize the unmarked vehicle following him as a police car. Neither Bradley nor Ashkar could see who was driving the station wagon they were pursuing.

As Ashkar drove the unmarked police car within twelve feet of the station wagon, Bradley suddenly drew his .357 revolver, leaned out the window of the moving patrol car, and fired one shot. Although Ashkar testified that he could not see in what direction Bradley fired, Bradley claimed that he merely fired a warning shot into the air and did not take aim at the station wagon. Marshall, still driving in what had now become a low-speed chase, heard the gunshot but did not stop. Seconds later, Bradley again leaned out the window with his .357 in hand and this time took aim at the driver of the station wagon. With his second shot, Bradley blasted a hollow point bullet through the rear tailgate of Marshall's station wagon; the bullet then passed through some shoe-shine equipment in the rear of Marshall's car and pierced the cushion and steel plate of the rear passenger seat. The bullet penetrated the padding in the back of the driver's seat where Marshall was seated and became embedded in a steel plate directly in line with Marshall's back. Marshall felt a shock in his back. After hearing the second shot and feeling the blow to his back, Marshall pulled over his car because he believed correctly that the people

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in the car with the emergency lights were shooting at him.

Bradley got out of the police car with his .357 drawn and ordered Marshall out of the station wagon by shouting, "get out of this car mother fucker before I blow your God damned brains out!" When Marshall emerged from the vehicle, Bradley and Marshall recognized each other, as they had been boyhood friends. Bradley told Marshall that he had run a stop sign and asked Marshall why he did not stop when he saw the police lights. After a brief exchange, Bradley let Marshall leave and did not issue Marshall a traffic citation.

Bradley and Ashkar returned to the Brooklyn police station later that morning. Despite a department policy requiring police officers to immediately report the discharge of their firearm, Bradley left the station without reporting the shooting incident. Ashkar reported the shooting to his supervisors both orally and in writing before he left the police station that morning. Bradley did not mention the shooting until he was questioned about it by the Brooklyn Chief of Police when Bradley returned to work that night at 11:00 p.m.

After the shooting, Marshall went to the FBI office in Fairview Heights, Illinois and reported the incident. An agent from the FBI interviewed Marshall, inspected his station wagon, and recovered the bullet from the steel plate in the driver's seat. The FBI conducted a further investigation by interviewing Ashkar and Bradley. Based on the information collected by the FBI, Bradley was indicted on one count of willfully depriving a person of constitutional rights under color of law in violation of 18 U.S.C. sec. 242. The indictment charged that Bradley intentionally deprived Marshall of his Fourth Amendment right to be free from the use of...

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