Sherrod v. Berry

• Decision Date: 23 February 1988
• Docket Number: No. 85-3151,85-3151
• Citation: 856 F.2d 802
• Parties: , 26 Fed. R. Evid. Serv. 875 Lucien SHERROD, Individually and as Administrator of the Estate of Ronald Sherrod, deceased, Plaintiff-Appellee, v. Willie BERRY, Frederick Breen and the City of Joliet, a municipal corporation, Defendants-Appellants. . Reheard En Banc
• Court: U.S. Court of Appeals — Seventh Circuit

Page 802

856 F.2d 802

57 USLW 2168, 26 Fed. R. Evid. Serv. 875

Lucien SHERROD, Individually and as Administrator of the Estate of Ronald Sherrod, deceased, Plaintiff-Appellee, v. Willie BERRY, Frederick Breen and the City of Joliet, a municipal corporation, Defendants-Appellants.

No. 85-3151.

United States Court of Appeals Seventh Circuit.

Reheard En Banc Feb. 23, 1988.

Decided Aug. 22, 1988.

William W. Kurnik, Kurnik & Cipolla, Arlington Heights, Ill., for defendants-appellants.

Andrew J. Horwitz, Horwitz, Horwitz & Assoc., Ltd., Chicago, Ill., for plaintiff-appellee.

Before BAUER, Chief Judge, and CUMMINGS, WOOD, CUDAHY, POSNER, COFFEY, FLAUM, EASTERBROOK, RIPPLE, MANION and KANNE, Circuit Judges.

The original panel decision in this case affirming a jury's verdict against the defendants was vacated, Sherrod v. Berry, 835 F.2d 1222 (7th Cir.1988), and the case set for rehearing en banc. We reverse and remand for a new trial.

COFFEY, Circuit Judge.

I.

Because we are remanding the case for a new trial, we recite only those facts necessary to our decision. (A more complete recitation of the facts is detailed in Sherrod v. Berry, 827 F.2d 195, 198-200 (7th Cir.1987) and 827 F.2d at 211-13 (dissenting opinion)). On December 8, 1979, the operator of Ziggy's Plant and Gift Shop in Joliet, Illinois, reported to the police that a robbery had just taken place. Willie Berry, a Joliet police officer on patrol in the area, heard a police radio dispatch recounting the robbery and describing the suspect. Officer Berry told his partner, Officer Richard Klepfer, that the description of the robbery suspect fit Gary Duckworth. Berry testified at trial that he previously knew Duckworth to have been a suspect in other assaultive crimes, including "robberies and purse snatchings." After receiving another radio communique that the suspect had returned to the area of the robbery, Officer Berry and his partner decided to investigate and proceeded to the crime scene. En route, the officers observed two men sitting in a 1969 Cadillac in the bank parking lot adjacent to Ziggy's.

The 1969 Cadillac exited the parking lot and pulled onto the street where Officers Berry and Klepfer were patrolling. Officer Berry activated the squad's "mars lights" and directed the driver of the Cadillac to pull over. As the officer's car approached the Cadillac, Berry recognized Duckworth as the passenger in the Cadillac. At that point in time, Officer Berry believed he was apprehending the perpetrator of the Ziggy's robbery, who was probably armed and thus considered dangerous. As the suspect's car slowed to a stop, Officer Berry and his partner exited the patrol car and removed their guns from their holsters believing the automobile stop to be of high risk. Officer Berry and his partner assumed positions outside the police vehicle with their guns pointed at the occupants of the Cadillac, covering the suspects from separate angles. Following accepted police procedures, Berry ordered the suspects to raise their hands. The two suspects failed to comply with the command, and Berry had to order them to raise their hands three times before the suspects complied; this recalcitrance on their part to follow the raised arm order further aroused Berry's suspicion as to the imminent danger confronting him. Berry testified that "it seemed to me as though the passenger [Duckworth] was looking at the driver [Ronald Sherrod] as more or less 'what are we going to do next?' "

Officer Berry asked his partner, who had also drawn his gun, if he had the suspects under cover. Officer Klepfer responded in the affirmative. At this time, Officer Berry raised his gun and cautiously approached the Cadillac. Patrolman Berry testified that while looking into the vehicle and approaching the suspect, he observed the driver make a "quick movement with his hand into his coat ... [as if] he was going to reach for a weapon." At that point, Officer Berry fired his revolver at Sherrod, killing him instantly.

Lucien Sherrod, the father of the deceased, filed a 42 U.S.C. Sec. 1983 action individually and as administrator of his son's estate against Officer Berry, the City of Joliet, and the Joliet Chief of Police. The first count of the complaint alleged that: (a) Officer Berry violated 42 U.S.C. Sec. 1983 when he shot and killed Ronald Sherrod; (b) Chief of Police Breen and the City of Joliet violated 42 U.S.C. Sec. 1983 through their improper policy regarding the use of deadly force; and (c) the City failed to adequately train the Joliet police officers concerning correct procedures for making felony stops of vehicles as well as the use of deadly force. The second count alleged that the defendants, in depriving the plaintiff-appellee (Sherrod) of his right to raise a family, deprived him of his constitutional right of due process of law. During the trial, evidence was received over the objection of the defendants-appellants that a search of the deceased (Sherrod) failed to disclose that he was armed with a weapon. The trial judge admitted the evidence, reasoning that "had plaintiff been prevented from introducing this evidence, the record would have been such that the jury would have been left to speculate on whether Berry was justified in thinking that the claimed movement by Sherrod posed a danger to the police officer. This would not have been fair." Sherrod v. Berry, No. 80 C 4117, mem. op. at 38 (N.D.Ill. November 15, 1985) . The jury ultimately found for the plaintiff on both counts and awarded $1,601,700 in damages.

II.

Defendants urge this court to reverse the jury's verdict, arguing that the trial court's receipt of evidence demonstrating that Ronald Sherrod was unarmed when Officer Berry discharged his weapon is not relevant to the question of whether Officer Berry reasonably believed that the use of deadly force was justifiable at the time of the shooting. The district court not only found that evidence as to whether Sherrod was unarmed was both relevant and material to determining whether Berry acted reasonably under the circumstances, but even implicitly stated on the record in its written findings dealing with a motion for a new trial that it would have been prejudicial to the plaintiff had the evidence not been received. Generally a "district court has broad discretion to determine the admissibility of evidence, and thus [this court] will reverse the court's evidentiary rulings only upon a clear showing of abuse of discretion." United States v. Garver, 809 F.2d 1291, 1297 (7th Cir.1987); see also Davis v. Lane, 814 F.2d 397, 399 (7th Cir.1987). But "[d]iscretion does not mean immunity from accountability." 1 Weinstein's Evidence, p 401. Where a district court applies an improper legal standard as the basis for allowing to be received in evidence facts not only irrelevant but also prejudicial to the determination of a party's liability (in this case Officer Berry's liability), the court's decision obviously constitutes an abuse of discretion.

Under Fed.R.Evid. 401, ¹ "relevancy is a relationship between a proferred item of evidence and a 'fact that is of consequence to the determination of the action.' " 1 Weinstein's Evidence, p 401, pp. 401-17. "Whether or not a fact is of consequence is determined not by the Rules of Evidence but by substantive law." Id. at 401-19. Thus, before the district court could properly have received evidence that Sherrod was unarmed at the time of the shooting, the district court had to find that this fact was relevant to the determination of Officer Berry's liability in the first instance.

In Lester v. City of Chicago, 830 F.2d 706 (7th Cir.1987) this court applied an "objective reasonableness under the circumstances" standard to Fourth Amendment excessive force and arrest claims. Lester stated that "the Fourth Amendment test measures [the] ... objective reasonableness [of an officer's actions] under the circumstances." 830 F.2d at 711. In phrasing the test set forth in Lester as one of "objective reasonableness under the circumstances," it is obvious that "under the circumstances" refers only to those circumstances known and information available to the officer at the time of his action (firing the fatal shot). When a jury measures the objective reasonableness of an officer's action, it must stand in his shoes and judge the reasonableness of his actions based upon the information he possessed and the judgment he exercised in responding to that situation.

Knowledge of facts and circumstances gained after the fact (that the suspect was unarmed) has no place in the trial court's or jury's proper post-hoc analysis of the reasonableness of the actor's judgment. Were the rule otherwise, as the trial court ruled in this instance, the jury would possess more information than the officer possessed when he made the crucial decision. Thus, we are convinced that the objective reasonableness standard articulated in Lester requires that Officer Berry's liability be determined exclusively upon an examination and weighing of the information Officer Berry possessed immediately prior to and at the very moment he fired the fatal shot. The reception of evidence or any information beyond that which Officer Berry had and reasonably believed at the time he fired his revolver is improper, irrelevant and prejudicial to the determination of whether Officer Berry acted reasonably "under the circumstances."

The record of the first trial substantiates Officer Berry's testimony that he fired at Sherrod because he reasonably believed in the split second he had to react to Sherrod's furtive, rapid movement, that he and his partner were in imminent danger of death or great bodily harm. As Officer Klepfer testified, Sherrod made a "quick movement with his hand into his coat" and "there was no doubt in my mind when he started to move, he was going to reach for a weapon of some type." Officer Berry never claimed that he actually saw a weapon, but stated that...