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United States v. Brown

United States Court of Appeals, Seventh Circuit

September 8, 2017

United States of America, Plaintiff-Appellee.
Aldo Brown Defendant-Appellant.

          Argued September 8, 2016

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 14 CR 674 - Virginia M. Kendall, Judge.

          Before Flaum, Rovner, and Sykes, Circuit Judges.

          Sykes, Circuit Judge.

         While investigating a tip that illegal drugs were being sold from a south-side convenience store, Chicago Police Officer Aldo Brown sucker-punched a store employee for no apparent reason. As the dazed employee attempted to stagger away, Brown continued to beat and kick him for about two minutes. The beating was caught on the store's surveillance camera. A federal grand jury indicted Brown for willfully depriving the employee of his Fourth Amendment right to be free from excessive force inflicted by a law-enforcement officer.

         At trial Brown sought to introduce expert testimony from a former Chicago police officer who would testify that Brown's actions were consistent with departmental standards. Ruling on the government's motion in limine, the district judge excluded the expert witness, reasoning that departmental policy was immaterial to the Fourth Amendment inquiry and that the expert's proposed testimony might include an improper opinion about Brown's state of mind.

         The jury found Brown guilty. He challenges his conviction, arguing that the judge wrongly excluded his expert witness. We reject this argument and affirm. Expert testimony about police standards may appropriately assist the jury in resolving some excessive-force questions, but sometimes evidence of this type is unhelpful and thus irrelevant, particularly when no specialized knowledge is needed to determine whether the officer's conduct was objectively unreasonable. The misconduct alleged here was easily within the grasp of a lay jury, so the judge did not abuse her discretion in excluding the expert.

         I. Background

         On September 27, 2012, Chicago Police Officers Aldo Brown and George Stacker entered a convenience store in Chicago's South Shore neighborhood to investigate a tip that drugs were being sold there. The officers handcuffed several people near the entrance, including a store employee named Jecque Howard. The officers then searched the store. After completing his search, Stacker returned to the front of the store and spoke to Howard for a few minutes, removing his handcuffs. Brown approached and ordered Howard to show his waistband. Howard lifted his shirt in compliance with the officer's order.

         Then, while Howard stood motionless, Brown punched him in the face. As Howard reeled from the blow, Brown grabbed him by the neck and held him against a large refrigerator. At Brown's direction Howard retrieved a small bag of marijuana from his back pocket and turned it over to Brown. Without provocation, Brown punched Howard in the ribs and pulled him down an aisle toward the back of the store where he forced him to lie on the floor on his back. When Howard attempted to sit up, Brown hit him in the face again and forced him back to the ground on his stomach. Brown then handcuffed Howard, searched his back pockets, and found a handgun. Brown confiscated the gun and walked toward the front of the store to show it to his partner, then returned to kick Howard in the ribs before placing him under arrest. Surveillance cameras captured the episode on silent video.

         In his arrest report, Officer Brown described the incident as an emergency takedown and explained that it was necessary because Howard reached for the firearm. In his tactical-response report, the officer stated that Howard "fled" and "pulled away" after the takedown. The tactical-response report has a space for the officer to record whether he used a "close hand strike/punch" or "kicks" during the incident in question. Brown left those boxes unchecked.

         A federal grand jury returned an indictment charging Brown with three crimes: two counts of falsifying a police record, see 18 U.S.C. § 1519 (one count for each report), and one count of willfully depriving another of a federal right under color of law, see id. § 242. The § 242 count alleged that Brown used excessive force against Howard, depriving him of his Fourth Amendment right to be free from unreasonable seizure.

         At trial Brown testified that he delivered the first punch because he noticed the gun in Howard's back pocket. He testified that he extended the confrontation only because Howard threatened him, incited onlookers to rough him up, failed to comply with his orders, tried to grab his gun, and attempted to flee.

         To support his theory that his actions were reasonable given the circumstances, Brown planned to call John Farrell, a former Chicago police officer, as an expert witness. According to Farrell's expert report, his proposed testimony would take the jury through a frame-by-frame narration of the surveillance video and describe how the Chicago Police Department's "Use of Force Model" applied to Brown's confrontation with Howard. Specifically, Farrell planned to testify that Howard was an "active resister" and an "assailant, " to use the parlance of the Use of Force Model. Farrell based this opinion primarily on his review of the video and an interview he conducted with Brown. Farrell also ...

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