United States v. Aldo Brown

In the

United States Court of Appeals

For the Seventh Circuit

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No. 16-1603

UNITED STATES OF AMERICA,

Plaintiff-Appellee.

v.

ALDO BROWN

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 14 CR 674 — Virginia M. Kendall, Judge.

____________________

ARGUED SEPTEMBER 8, 2016 — DECIDED SEPTEMBER 8, 2017

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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

2 No. 16-1603

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 stand-

ards. Ruling on the government’s motion in limine, the

district judge excluded the expert witness, reasoning that

departmental policy was immaterial to the Fourth Amend-

ment 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 convic-

tion, arguing that the judge wrongly excluded his expert

witness. We reject this argument and affirm. Expert testimo-

ny 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, par-

ticularly when no specialized knowledge is needed to de-

termine whether the officer’s conduct was objectively unrea-

sonable. 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

No. 16-1603 3

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 neces-

sary 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

4 No. 16-1603

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. Ac-

cording 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 “assail-

ant,” 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 planned

to offer his conclusions that Brown’s actions were consistent

with departmental policy and that his response was appro-

priate under the circumstances.

The government moved in limine to exclude Farrell’s tes-

timony on multiple grounds. The judge granted the motion.

Applying Rules 403 and 702 of the Federal Rules of Evi-

dence, the judge reasoned that Farrell’s testimony was

No. 16-1603 5

largely immaterial and would not assist the jury. The judge

noted that the question for the jury was whether Brown

violated Howard’s constitutional rights, not whether he

violated the Chicago Police Department’s internal rules, and

the expert’s specialized knowledge of police procedures was

unhelpful because the alleged misconduct—punching and

kicking—was well within the average juror’s comprehen-

sion. She concluded as well that Farrell’s testimony would be

unfairly prejudicial because the jurors might defer to his

conclusions about the reasonableness of Brown’s actions

rather than reaching their own independent judgment.

The judge also worried that Farrell’s proposed expert tes-

timony was likely to implicate Rule 704(b), which prohibits

expert opinion about a criminal defendant’s state of mind.

Farrell apparently intended to tell the jury what Brown was

likely thinking at each stage of the confrontation and explain

why his state of mind justified his actions. Finally, the judge

was concerned that Farrell’s testimony, which was based in

part on his interview with Brown, would introduce Brown’s

version of events through the expert.

Though she excluded Brown’s expert witness, the judge

permitted the government to call two instructors from the

Chicago Police Department’s Education and Training Divi-

sion to lay a factual foundation for the report-falsification

charges. The judge allowed the instructors to testify for this

limited purpose, but she barred them from discussing the

substance of the training that officers receive on the Fourth

Amendment in general or the use of force in particular. She

also precluded them from offering opinions about whether

Brown used excessive force or had improperly filed a report.

6 No. 16-1603

More specifically, Andrea Hyfantis, the first departmental

witness, testified that in 2002 and 2003, she was an instructor

for Brown’s class of recruits. She told the jury that she taught

the recruits about the importance of truthfulness when filing

a police report. She also testified that she instructed them in

the basics of Fourth Amendment law, though she adhered to

the judge’s limitation and did not describe the substance of

this instruction. The second instructor, Yolanda Hatch,

explained the Chicago Police Department’s training on filing

postincident reports.

The jury acquitted Brown of falsifying his reports but

convicted him of willfully violating Howard’s Fourth

Amendment right to be free from excessive force. This

appeal followed.

II. Discussion

Brown limits his appeal to the exclusion of his expert

witness. We review de novo whether the district court

applied the proper legal framework for admitting or exclud-

ing expert testimony. Lees v. Carthage Coll., 714 F.3d 516, 520

(7th Cir. 2013). The judge applied the proper framework

here, so we review her evidentiary ruling for abuse of discre-

tion. See United States v. Trudeau, 812 F.3d 578, 590 (7th Cir.

2016). District judges have wide discretion over decisions to

admit or exclude evidence; we will reverse only if no rea-

sonable person could take the judge’s view of the matter.

United States v. Molton, 743 F.3d 479, 483 (7th Cir. 2014). Even

if we find an abuse of discretion, a new trial is warranted

only if the judge’s error affected the defendant’s substantial

rights. Trudeau, 812 F.3d at 590 (citing FED. R. CRIM. P. 52(a)).

That is, a new trial is appropriate only if the average juror

would have found the government’s case significantly less

No. 16-1603 7

persuasive had the wrongly excluded evidence been admit-

ted. Id.

The judge based her decision to exclude Farrell’s testi-

mony primarily on Rule 403, which permits the judge to

exclude evidence if its probative value is substantially

outweighed by the danger of unfair prejudice. She also

invoked Rule 704(b), which generally prohibits opinion

testimony about a criminal defendant’s state of mind.

A. Rule 403 and Expert Testimony on Departmental Policy

The Fourth Amendment prohibits law-enforcement offic-

ers from using excessive force during an arrest as a neces-

sary corollary of the Amendment’s prohibition of unreason-

able seizures. Graham v. Connor, 490 U.S. 386, 395 (1989).

When an officer is accused of using excessive force, the

decisive question is whether the officer’s conduct meets the

Fourth Amendment’s objective standard of reasonableness.

Williams v. Indiana State Police Dep’t, 797 F.3d 468, 472–73 (7th

Cir. 2015). Objective reasonableness is “not capable of precise

definition or mechanical application.” Abdullahi v. City of

Madison, 423 F.3d 763, 768 (7th Cir. 2005) (quotation marks

omitted). Rather it “turns on the facts and circumstances of

each particular case.” Kingsley v. Hendrickson, 135 S. Ct. 2466,

2473 (2015) (internal quotation marks omitted). Ultimately

the officer flunks the test if, in light of the circumstances, he

“used greater force than was reasonably necessary to effec-

tuate the seizure.” Williams, 797 F.3d at 473.

The excessive-force inquiry is governed by constitutional

principles, not police-department regulations. Scott v.

Edinburg, 346 F.3d 752, 760–61 (7th Cir. 2003). An officer’s

compliance with or deviation from departmental policy

8 No. 16-1603

doesn’t determine whether he used excessive force. Put

another way, a police officer’s compliance with the rules of

his department is neither sufficient nor necessary to satisfy

the Fourth Amendment’s reasonableness requirement. Police

policies are not nationally uniform; nor are they static. If

compliance with departmental policy were decisive, the

Fourth Amendment’s reasonableness standard would “vary

from place to place and from time to time.” Whren v. United

States, 517 U.S. 806, 815 (1996). Worse, if compliance with

departmental policy were the applicable legal standard, the

police department itself would become the arbiter of Fourth

Amendment reasonableness—a prospect that would have

horrified those responsible for the Amendment’s ratification.

See Illinois v. Rodriguez, 497 U.S. 177, 191 (1990) (Fourth

Amendment rights were “deemed too precious to entrust to

the discretion of those whose job is the detection of crime

and the arrest of criminals.”) (quotation marks omitted);

1 ANNALS OF CONG. 439 (1789) (Joseph Gales ed., 1834)

(James Madison expressing the expectation that the coun-

try’s “independent tribunals of justice will consider them-

selves in a peculiar manner the guardians” of the individual

liberties secured in the Bill of Rights and that the courts “will

be an impenetrable bulwark against every assumption of

power in the Legislative or Executive”).

With these background principles in mind, we reasoned

in Thompson v. City of Chicago that a police officer’s violation

of departmental policy is “completely immaterial [on] the

question … whether a violation of the federal constitution

has been established.” 472 F.3d 444, 454 (7th Cir. 2006).

Thompson involved an excessive-force claim under 42 U.S.C.

§ 1983, the civil analogue of § 242. We affirmed the district

court’s exclusion of the Chicago Police Department’s use-of-

No. 16-1603 9

force orders. 472 F.3d at 453. We also affirmed the court’s

exclusion of expert testimony from a police sergeant who

would have offered an opinion about the reasonableness of

the officer’s conduct based in part on the use-of-force orders.

Id. at 457.

Despite its strong language, Thompson should not be un-

derstood as establishing a rule that evidence of police policy

or procedure will never be relevant to the objective-

reasonableness inquiry. We recently clarified that expert

testimony concerning police policy is not categorically

barred. See Florek v. Village of Mundelein, 649 F.3d 594, 602–03

(7th Cir. 2011). Even though jurors can understand the

concept of reasonableness, in some cases they may not fully

grasp particular techniques or equipment used by police

officers in the field. In those instances an expert’s specialized

knowledge can “help the trier of fact to understand the

evidence or to determine a fact in issue,” as Rule 702 re-

quires. FED. R. EVID. 702(a).

Expert testimony of this type may be relevant in cases

where specialized knowledge of law-enforcement custom or

training would assist the jury in understanding the facts or

resolving the contested issue. For example, if it’s standard

practice across the country to train officers to handle a given

situation in a particular way, expert testimony about that

training might aid a jury tasked with evaluating the conduct

of an officer in that specific situation. The legal standard

contemplates a reasonable officer, not a reasonable person, so

it may be useful in a particular case to know how officers

typically act in like cases. Florek, 649 F.3d at 602.

Evidence of purely localized police procedure is less like-

ly to be helpful than nationally or widely used policy. The

10 No. 16-1603

jury’s task is to determine how a reasonable officer would act

in the circumstances, not how an officer in a particular local

police department would act.

The level of factual complexity in the case may also bear

on the relevance of expert testimony about police practices

or protocols. In many cases evaluating an officer’s conduct

will draw primarily on the jury’s collective common sense.

The everyday experience of lay jurors fully equips them to

answer the reasonableness question when a case involves

“facts that people of common understanding can easily

comprehend.” United States v. Lundy, 809 F.2d 392, 395 (7th

Cir. 1987). The jury’s common experience will suffice, for

example, when “police use[] their bare hands in making an

arrest, the most primitive form of force.” Florek, 649 F.3d at

602 (internal quotation marks omitted). But when “some-

thing peculiar about law enforcement (e.g., the tools they use

or the circumstances they face) informs the issues to be

decided by the finder of fact,” a juror’s everyday experience

may not be enough to effectively assess reasonableness. Id. If

a case involves “a gun, a slapjack, mace, or some other

tool, … the jury may start to ask itself: what is mace? what is

an officer’s training on using a gun? how much damage can

a slapjack do?” Kopf v. Skyrm, 993 F.2d 374, 379 (4th Cir.

1993).

Importantly, a per se rule against expert testimony about

police policy or procedure is particularly inappropriate in

criminal cases. Brown stood accused of violating § 242,

which penalizes the willful deprivation of another’s federal

right under color of law. The statute codifies a specific-intent

crime; though the officer need not “have been thinking in

constitutional terms,” he can be convicted under § 242 only

No. 16-1603 11

if he “is aware that what he does is precisely that which the

statute forbids.” Screws v. United States, 325 U.S. 91, 104, 106

(1945); see also United States v. Brown, 250 F.3d 580, 584–85

(7th Cir. 2001). It might be less likely that an officer knew

that his actions would deprive another of a federal right if

those actions fell entirely within widely used standardized

training or practice.

Furthermore, in a criminal case, the defendant has a con-

stitutional right to a “meaningful opportunity to present a

complete defense.” Holmes v. South Carolina, 547 U.S. 319, 331

(2006) (quotation marks omitted). When evidence might

support a theory of innocence, the trial judge must be free to

“focus on the probative value or the potential adverse effects

of admitting the defense evidence.” Id. at 329. Categorically

excluding this type of evidence without a case-specific

inquiry under Rules 403 and 702 would raise serious consti-

tutional concerns. See Rock v. Arkansas, 483 U.S. 44, 61 (1987)

(A “legitimate interest in barring unreliable evidence does

not extend to per se exclusions that may be reliable in an

individual case.”).

Though it’s not correct to read Thompson as establishing a

per se rule of exclusion, the judge appropriately exercised

her discretion in excluding the expert’s testimony here. To

repeat, the judge receives “special deference” in making

these determinations, and her decision will be upheld unless

“no reasonable person could take [her] view” of the matter.

United States v. LeShore, 543 F.3d 935, 939 (7th Cir. 2008)

(quotation marks omitted). That deference is more than

enough to carry the day.

This case provides a textbook example of easily compre-

hensible facts. Brown was indicted for punching and kicking

12 No. 16-1603

Howard. He didn’t use a sophisticated tool or technique; he

hit a motionless man in the face with his fist and continued

to beat and kick him before placing him under arrest. An

expert’s explanation of the Chicago Police Department’s Use

of Force Model would have added nothing that the jurors

could not ascertain on their own by viewing the surveillance

videotape and applying their everyday experience and

common sense. And as the district judge concluded, the

admission of Farrell’s testimony may have induced the jurors

to defer to his conclusion rather than drawing their own. See

Thompson, 472 F.3d at 458. Accordingly, the judge did not

abuse her discretion in excluding Farrell’s expert testimony

about departmental use-of-force standards.

B. Rule 704(b)

Farrell also planned to offer his opinion that Brown acted

reasonably under the circumstances—an opinion based in

part on Brown’s version of events as recounted in exculpato-

ry statements he made to Farrell in an interview. As the

judge saw it, this expert testimony came too close to the line

drawn in Rule 704(b), which prohibits expert opinion about

a criminal defendant’s state of mind.

Brown insists that Farrell relied on his own experience

and understanding of the facts to arrive at an admissible

opinion on the ultimate question of objective reasonableness.

Expert opinions on ultimate issues are not categorically

impermissible. See FED. R. EVID. 704(a). But Rules 403, 702,

and 704(b) operate (if in different ways) to prohibit expert

opinions that would “merely tell the jury what result to

reach.” United States v. Noel, 581 F.3d 490, 497 (7th Cir. 2009)

(quoting FED. R. EVID. 704 advisory committee’s note to 1972

No. 16-1603 13

proposed rules). That’s what Farrell’s opinion testimony

would have done here.

Brown falls back on a general argument that because

Farrell is an expert on the use of force, his opinion about

objective reasonableness should have been admitted. But an

expert’s role is to “help the trier of fact to understand the

evidence,” FED. R. EVID. 702(a), not to draw conclusions for

the fact finder when no help is needed.

Brown’s remaining arguments need only brief attention.

He contends that the judge acted inconsistently by excluding

his expert witness but allowing Hatch and Hyfantis to testify

as witnesses for the government. There was no inconsistency.

The judge prevented Hatch and Hyfantis from testifying

about the substance of the Chicago Police Department’s

instructional program on the Fourth Amendment. The judge

also precluded them from offering opinion testimony about

Brown’s police reports or the reasonableness of his use of

force.

Finally, Brown argues that the judge abdicated her role as

an “impartial referee of the adversarial system” by excluding

his expert witness for reasons not raised by the government

in its motion in limine. This argument, too, is meritless. The

government advanced the relevant arguments, at least

generally, in its motion in limine and in its responses to

Brown’s own pretrial motions.

AFFIRMED.