By: Duke Truong
J.D. Candidate, 2017
Valparaiso University School of Law
Who can serve as witnesses in police brutality cases? On January 28, 2016, the Seventh Circuit Court of Appeals provided an answer with its decision in United States v. Smith, Nos. 14-3744, 14-3721.
In September 2012, Putnam County Officer Terry Joe Smith punched a handcuffed Cletis Warren in the face. The ambulance took Warren to the hospital to stop the profuse bleeding. Fellow officers at the scene heard Smith say, “I guarantee I broke that mother fucker’s nose.”
Several months later, Smith arrested Jeffrey Land for domestic violence. After Smith handcuffed Land, he lifted Land in the air, dropped him, and drove his knee into Land’s sternum, causing Land to defecate on himself. Smith bragged about the incident to a fellow officer and took pride that it was not the first time.
A jury found that Smith violated 18 U.S.C. § 242 by subjecting Warren and Land to the intentional use of unreasonable and excessive force in violation of their constitutional rights. Smith was sentenced to 14 months in prison and two years of supervised release.
Both Smith and the government appealed to the Seventh Circuit: Smith appealed his conviction, and the government appealed the lenient sentencing. The panel ruled for the government, upholding the conviction and requiring the district judge to resentence Smith based on the guidelines.
Officers who witnessed Smith’s assaults testified that his use of force was unjustified because neither Warren nor Land were resisting. In the court’s words, the officers testified to Smith’s “violent, gratuitous, and sadistic batteries of Warren and Land.”
Smith’s lawyer objected to the officer’s testimony by asserting that they were unqualified expert witnesses under Federal Rule of Evidence 702. Writing for the panel, Judge Posner upheld the trial court’s rejection of that objection under Rule 701. Under Rule 701, a non-expert witness can give an opinion based on the witness’s perception to help determine the fact in issue that isn’t based on scientific, technical, or specialized knowledge.
Police use of excessive force has been nothing short of controversial. In a 2010 annual report by the Cato Institute, excessive force complaints made up 56.9 percent of cases that involved the physical use of force by peace officers. On July 17, 2014, a plainclothes police officer applied a chokehold to Eric Garner while a swarm of officers tried to pin him to the ground. Garner gasped for air and uttered his final words, “I can’t breathe.” Mr. Garner’s death serves as a prime example of excessive force and many Americans’ worst fears when they have face-to-face contact with the police.
With this decision, the Seventh Circuit discourages the code of silence that exists within the police community. The officers stood up despite the misconception that they were turning their backs on one of their own.