Evidence Unknown To Officer In Excessive Force Case Is Admissable If It Tends To Impeach Witness' Testimony
COMMON v. CITY OF CHICAGO (October 20, 2011)
Chicago police officers Guy Nelson and Sean O'Brien responded to a call that a robbery suspect could be found in a south-side convenience store. As they approached the store, they saw three men that fit the description they had been given by the store owner leaving the store. Considering the inconsistent evidence in a light most favorable to the officers, a) Officer Nelson identified himself, b) Nelson ordered the three men to stop and show their hands, c) two of the three men complied, d) Michael Smith did not comply (even after repeated requests), e) Nelson removed a gun from his pocket, f) Smith grabbed for the wrist of Nelson's gun-hand, and g) Nelson fatally shot Smith. The medical examiner found five small bags of cocaine in Smith's chest and trachea and concluded that they made their way there through the upper airway. Smith's estate brought suit against the officers and the City, alleging excessive force. Judge Kennelly (N.D. Ill.) ruled, in limine, that the cocaine evidence was admissible. After trial, a jury found in favor of the defendants. Smith's estate appeals.
In their opinion, Seventh Circuit Judges Posner, Rovner, and Tinder affirmed. The question for the jury in this case was whether Officer Nelson's actions were objectively reasonable, given the facts and circumstances known to him at the time. The general rule is that the jury should not consider information that the officer did not know at the time of his actions. The Court noted two exceptions to the general rule -- to challenge the credibility of a witness 1) by attacking his capacity to observe, recall, or relate or 2) by pointing out contradictions in his testimony. Here, the testimony of the various witnesses was inconsistent. The estate's version was that Smith complied with the officers' request and stood quietly, with arms raised, when Officer Nelson shot him. The evidence that Smith possessed five small bags of cocaine makes it more likely that his conduct fit the description given by the officers rather than that of the other witnesses. It would, for example, explain why he was less willing to cooperate and why he did not want to face the officers and show his hands. It therefore fits within the exception to the rule that the jury should only consider what the officer knew. The Court added that the district court could have excluded the evidence on unfair prejudice grounds. Appellate review of a district court’s findings in this area is quite deferential. The Court concluded that the district court did not err in admitting the evidence.
Michael Rigney practices in the law offices of GVC Ltd. in Chicago. In this blog, he reports on select