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Sherrod v. Berry

decided: August 22, 1988.


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 80 C 4117--George N. Leighton, Judge.

William J. Bauer, Chief Judge, and Walter J. Cummings, Harlington Wood, Jr., Richard D. Cudahy, Richard A. Posner, John L. Coffey, Joel M. Flaum, Frank H. Easterbrook, Kenneth F. Ripple, Daniel A. Manion, and Michael A. Kanne, Circuit Judges. Ripple, Circuit Judge, concurring. Cummings, Circuit Judge, with whom Cudahy, Circuit Judge, joins, dissenting. Flaum, Circuit Judge, dissenting.

Author: Coffey

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, En Banc.


COFFEY, Circuit Judge.

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. § 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. § 1983 when he shot and killed Ronald Sherrod; (b) Chief of Police Breen and the City of Joliet violated 42 U.S.C. § 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.


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 "discretion does not mean immunity from accountability." 1 Weinstein's Evidence, para. 401[01]. 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,*fn1 "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, para. 401[03], 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 he simply reacted to what a reasonable person would consider to be a life-threatening and imminently dangerous situation. Thus, absent a constitutional violation, appellate judges would be well advised not to second-guess an officer's split-second reasonable judgment to protect himself and those around him through the use of deadly force; rather, courts and juries must determine the propriety of the officer's actions based upon a thorough review of the knowledge, facts and circumstances known to the officer at the time he exercised his split-second judgment as to whether the use of deadly force was warranted.

Our holding is consistent with both today's opinion in Ford v. Childers, 855 F.2d 1271 (7th Cir. 1988), and the Supreme Court's decision in Tennessee v. Garner, 471 U.S. 1, 85 L. Ed. 2d 1, 105 S. Ct. 1694 (1985). In both cases, the respective courts reviewed the totality of the circumstances known to the police officer at the time of the incident in determining whether the officer acted reasonably. (Ford also involved an officer's use of deadly force in the apprehension of a suspect.) In Garner, the Court stressed the rule that it is reasonable to use deadly force if the officer, when exercising his or her reason and judgment, has probable cause to believe that the suspect poses a threat of death or serious physical harm to the officer or others and, whenever possible, warns the suspect before firing. Id. at 11-12. The Court specifically stated:

"Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape and if, where feasible, some warning has been given."

Id. Similarly, as here, when an officer believes that a suspect's actions places him, his partner, or those in the immediate vicinity in imminent danger of death or serious bodily injury, the officer can reasonably exercise the use of deadly force. As aptly noted in Young v. City of Killeen, Tx., 775 F.2d 1349, 1353 (5th Cir. 1985), " no right is guaranteed by federal law that one will be free from circumstances where he will be endangered by the misinterpretation of his acts." Id. at 1353 (emphasis added).

Our holding today is likewise consistent with Davis v. Freels, 583 F.2d 337 (7th Cir. 1978). There Wallace Davis sued Joseph Freels, a Chicago police officer, under 42 U.S.C. § 1983 after Freels shot him in the back. The facts in Davis establish that Officer Freels and his partner believed Davis and another individual were wanted in connection with a shooting incident. Police officers confronted Davis and his companion and ordered the two men to walk over and place their hands on the car. Officer Freels testified that as Davis turned to put his hands on the car, he (Officer Freels) "saw a sudden movement with his [Davis's] right elbow in a backward direction." Responding to this sudden and suspicious movement, Officer Freels fired his revolver, previously drawn as a precautionary measure, at the suspect. This court upheld the jury's verdict that Davis was not deprived of any rights under 42 U.S.C. § 1983 and quoted with approval from 6th Am. Jur. 2d Assault & Battery, § 161 at 135 (1963):

"In a civil action for assault, the defendant's belief that the plaintiff intended to do him bodily harm cannot support a plea of self defense unless it was such a belief as a reasonable person of average prudence would have entertained under similar circumstances. It is not necessary that the danger which gave rise to the belief actually existed; it is sufficient that the person resorting to self defense at the time involved reasonably believed in the existence of such a danger, and such reasonable belief is sufficient even where it is mistaken. In forming such reasonable belief a person may act upon appearances. In other words, it is sufficient that the danger was reasonably apparent."

583 F.2d at 341 (emphasis added). In this case the investigation conducted after the shooting revealed that Sherrod was unarmed. But at the time Officer Berry made the crucial decision to discharge his revolver, he was unaware of this fact. Officer Berry testified that he believed that he was apprehending an armed and dangerous suspect who had just committed a robbery and further that this suspect made a "quick movement with his hand into his coat . . . [as if] he was going to reach for a weapon." The veracity of Officer Berry's testimony and the reasonableness of his actions based upon the totality of the information he possessed at the time of the shooting are questions we leave for a properly informed and instructed jury on remand. In short, we categorically reject the district court's assertion that fairness requires that the jury be presented with facts unknown and unavailable to Officer Berry at the time of the shooting (that Sherrod was unarmed). To the contrary, we hold that justice requires that the jury analyze and weigh the reasonableness of Officer ...

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