# Sherrod v. Berry

> Court of Appeals for the Seventh Circuit · August 22, 1988 · 856 F.2d 802

URL: https://www.frixlaw.com/law-library/cases/8963638

## Case

- **Full name:** Lucien SHERROD, Individually and as Administrator of the Estate of Ronald Sherrod v. Willie BERRY, Frederick Breen and the City of Joliet, a municipal corporation
- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** August 22, 1988
- **Citations:** 856 F.2d 802; 1988 WL 92583
- **Precedential status:** Published
- **Opinion:** Dissent by Cummings
- **Judges:** Bauer, Coffey, Cudahy, Cummings, Easterbrook, Flaum, Kanne, Manion, Posner, Ripple, Wood
- **Cited by:** 104 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8963638

## How later opinions describe it (automated extraction)

- holding that the veracity of the officer’s testimony and the reasonableness of his actions in dealing with a suspect who he believed to be armed and dangerous and to have made a quick movement with his hand going into his coat as if he were going to reach for a weapon were que…
- holding that under circumstances of case, fact that suspect was unarmed was irrelevant to excessive force claim where officer reasonably believed he was armed
- reversing and remanding for a new trial because district judge erroneously allowed the jury to be presented with facts unknown and unavailable to the officers at the time of the shooting, namely that the decedent suspect was unarmed
- stating that in an excessive force case, courts should look to the split second before the officer had to decide what to do

## Opinion text

CUMMINGS, Circuit Judge,
with whom CUDAHY, Circuit Judge, joins, dissenting.
The majority’s opinion misrepresents the parties and events involved in the killing of Ronald Sherrod, misinterprets the applicable legal standards and rules and allows an argument waived by the defendants to prevail. The result is a miscarriage of justice. Ford v. Childers, 855 F.2d 1271 (7th Cir.1988) (en banc) (Cudahy, J., concurring).
The majority’s version of the facts presents a good police officer in a bad situation confronting a recalcitrant suspect. The record presents a bad cop with a history of unnecessary violence, acting in violation of police procedure, confronting an innocent victim. This characterization is important because the issue on rehearing is whether the district court clearly abused its discretion when it admitted evidence it determined was relevant to the credibility of Berry’s version of the events leading to his shooting and killing Ronald Sherrod. Therefore, before addressing the legal issues we find it necessary to correct several crucial misstatements of the facts.
I
The majority opinion states that “[f]ol-lowing accepted police procedures, Berry ordered the suspects to raise their hands,” then it characterizes their reaction as “recalcitrance” which “further aroused Berry’s suspicion.” Maj. op., supra at 803. Berry testified to, and the majority makes much of, the fact that he had to order Sherrod and Duckworth to raise their hands three times before they complied. Although Sherrod and Duckworth may not have responded until Berry completed all three of his vulgar and abusive commands to “get their motherfucking hands up” (Tr. at 406), 1 this “failure” cannot accurately or fairly be labeled recalcitrance. It is not clear from the record how much time elapsed between each of these commands. But if any time at all elapsed, it must have been very little because Officer Klepfer testified that from the time Sherrod responded and stopped his car until the time Berry shot and killed him only “10, 12 seconds maybe” elapsed. (Tr. at 1241).
The majority also mischaracterizes the nature of the stop and the danger that Berry’s partner Officer Klepfer perceived. The majority presents Duckworth as probably armed and dangerous. Nothing in the record supports this view. The police dispatcher described the incident at Ziggy’s over the radio as follows, “[apparently was a sneak thief. He took the money, was chased by an employee. The employee got the money back.” (Tr. at 1117). Nothing in this or any of the other radio dispatches concerning the alleged sneak thievery at Ziggy’s indicated that the suspect was armed or dangerous. Although Berry stated that he never heard the broadcast *809 calling the suspect a “sneak thief,” he admitted that he had no reason to believe that Duckworth had ever committed any violent acts. (Tr. at 417-418). As to reasonable suspicions concerning Sherrod, the radio dispatches reported the suspect as one man, on foot, so that Berry had no information indicating that Sherrod was in any way involved in the sneak thievery or was otherwise armed or dangerous.
In addition, neither the manner in which the stop was made nor Sherrod and Duck-worth’s response indicated any danger. Sherrod responded immediately to Berry’s hand signal to pull over (Tr. at 445), and sat “peacefully” in the car (Tr. at 502 and 1156), doing nothing that indicated to Berry that he was going to create any problems. (Tr. at 1203). The majority states that “Officer Berry and his partner ... be-liev[ed] the automobile stop to be of high risk.” However, the record indicates that Officer Klepfer did not feel he was in any danger at the time the stop was made (Tr. at 1280), or when Sherrod moved his hand toward his pocket. (Tr. at 1280-1281). Rather, Officer Klepfer’s sense of security was so great, due to Sherrod’s “compliance,” that when Berry asked Klepfer “Do you have him?” Klepfer responded “Yes,” but at the same time relaxed his finger from the trigger. (Tr. at 1285).
Finally, the majority’s version creates the impression that the stop was a proper cautious one in which the officers assumed protective positions. This was not the case. In a proper felony stop, Berry would have stopped his car behind Sherrod’s and, from a position of relative safety behind the open doors of the squad car, ordered Sherrod and Duckworth out of their vehicle. Berry admitted that the circumstances would have allowed him to make a proper felony stop (Tr. at 525), but that instead he incautiously chose to confront Sherrod’s car head-on. By violating proper police procedure, Berry unnecessarily placed himself in the position he later perceived as dangerous to himself and his partner (Tr. 502-503), and which led to the death of Ronald Sherrod.
II
The majority is able to hold that the district court clearly abused its discretion because the majority finds that the district court applied an improper legal standard. Maj. op., supra at 804. Unfortunately, it is the majority, not the district court, that applies an improper legal standard. The majority correctly identifies the applicable legal standard in a Fourth Amendment excessive force claim as a test of “ ‘objective reasonableness under the circumstances.’ ” Id. at 804 (quoting Lester v. City of Chicago, 830 F.2d 706, 711 (7th Cir.1987)), but the majority then fails to apply this objective test to the circumstances that resulted in Sherrod’s death. Instead, by narrowly defining what constitutes the circumstances and what constitutes impeachment, the majority uses a subjective test that gives to the law enforcement officer the wide discretion it denies the district court.
In the majority’s narrow view “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).” Maj. op., supra at 804. Therefore, the “[kjnowledge 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.” Id. 2
The limitations the majority imposes on what constitutes the circumstances are neither intuitively obvious nor, more impor *810 tantly, obvious from this Court’s opinion in Lester . In Lester we cited Tennessee v. Garner, 471 U.S. 1 , 105 S.Ct. 1694 , 85 L.Ed.2d 1 , for the proposition that the balancing of interests between the individual and the government depends on “whether the totality of circumstances justifies a particular sort of ... seizure.” Lester, 830 F.2d at 711 (emphasis added). Then, as an example of what factors courts should consider in determining the totality of the circumstances, we cited Gilmere v. City of Atlanta, 774 F.2d 1495 (11th Cir.1985) (en banc), certiorari denied, 476 U.S. 1115 , 106 S.Ct. 1970 , 90 L.Ed.2d 654 (1986). In Gil-mere, the police received a report that Thomas Patillo had pulled a gun from the trunk of his car and threatened the driver of another vehicle. When the police arrived at Patillo’s home and ordered him to the police car for questioning, he put up some resistance and attempted to flee. A scuffle ensued and an officer shot Patillo in the stomach and killed him. Id. at 1496-97. In evaluating Patillo’s estate’s Fourth Amendment claim against the police and evaluating the reasonableness of the officer’s action under the totality of the circumstances, the Eleventh Circuit en banc considered that “the police had little cause to believe Patillo himself to be dangerous. Given his small size, intoxicated state, and lack of a weapon, he clearly posed little threat to their safety when they initially began escorting him to the patrol car.” Id. at 1502 (emphasis added). Obviously, the after-the-fact information that the suspect/victim was unarmed had a place in the Eleventh Circuit’s post-hoc analysis of the totality of the circumstances. Consistent with Lester and Gilmere , the after-the-fact information that Sherrod was unarmed had a place in the jury’s post-hoc analysis of the totality of the circumstances leading to Berry’s shooting Sherrod at point-blank range.
In addition to its relevance as part of the totality of the circumstances leading to the killing of Ronald Sherrod, the evidence that Sherrod was unarmed is relevant as part of the testimony helping the jury understand the type of movement Sherrod made that precipitated his death. Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed.R.Evid. 401. The manner in which Sherrod reached into his pocket is of great consequence to the determination of the action — it was this movement that caused Berry to shoot and kill him.
The jury was presented with conflicting versions of how Sherrod reached into his jacket. The descriptions of the action, both verbal and demonstrative, were repetitive and confusing. Adding to the confusion was the element that different versions came not only from different witnesses but also from the same witness on direct examination, cross-examination and through impeaching prior testimony read to the jury as admissions. See Tr. at 1133, 1181-1186, 1240, 1266, 1280-1281, 1282-1283. Whether Berry’s response was reasonable depends in large measure on the nature of Sherrod’s movement, and the fact that Sherrod did not have a gun has the tendency to make some of the conflicting versions more probable. The fact that there was no gun was relevant to help the jury evaluate the conflicting testimony and determine the type of movement Sherrod made.
In addition to holding that the fact that Sherrod was unarmed is irrelevant to the determination of the reasonableness of Berry’s action, the majority holds that “evidence that Sherrod was unarmed is irrelevant for impeachment purposes.” Maj. op., supra at 806. Once again the majority has taken too narrow a view of the applicable law. To be relevant for impeachment purposes evidence need not directly counter “black” with “white” or “yes” with “no;” it need only detract from the credibility of a witness or the veracity of his testimony.
The majority admits that “if an officer testifies that T saw a shiny, metallic object similar to a gun or a dangerous weapon in the suspect’s hand,’ then proof that the suspect had neither a gun nor a knife would be material and admissible to the officer’s credibility on the question of *811 whether the officer saw any such thing.” Maj. op., supra at 806. The majority sees this as an example of “no” countering “yes;” however, that is not why this evidence would be impeaching. The officer in the majority’s example testified that he saw a gun. The after-the-fact determination that no gun existed does not mean that the officer did not sincerely believe that he saw one, but it does make it less likely that the officer believed he saw one or, if he did believe he saw one, tends to make that belief unreasonable. It is also relevant to the observational abilities of the officer and reflects upon the veracity of his testimony. Simply stated, in the majority’s example the impeachment goes not to the existence of a weapon, but to the probability that the officer’s version of the events is credible.
For this reason, the majority’s attempt to differentiate the above scenario from Berry’s situation fails. The majority states that “Officer Berry did not testify that he saw an object in Sherrod’s coat or in his hand; rather, Officer Berry testified only that he saw Sherrod make a ‘quick movement with his hand into his coat;’ ” from this the majority concludes “[t]hus, evidence that Sherrod was unarmed is irrelevant for impeachment purposes.” Id. at 807. But the fact that Sherrod was unarmed does not necessarily mean that Berry acted unreasonably. 3 Instead, as in the majority’s example, the fact that no gun existed does make it less likely that Berry thought he was in danger and makes the evidence impeaching in the same manner as in the majority’s example. The object of the relevancy determination is the reasonableness of Berry’s conclusion that he was in danger and the credibility of his testimony at trial. Thus the fact that Sherrod was unarmed is relevant for the same reasons that the evidence is relevant in the majority’s example.
In conclusion, I find the evidence that Sherrod was unarmed relevant to the totality of the circumstances and to determining the credibility of Berry’s testimony. The majority finds the evidence irrelevant. However, the outcome of this appeal should not depend on which version garners a majority of votes. At this stage of the proceedings we are not making a de novo determination of whether to admit the evidence; we are reviewing the determination of the district court and can reverse only if the district court clearly abused its discretion. United States v. Laughlin, 772 F.2d 1382, 1392 (7th Cir.1985) (“a trial court possesses broad discretion in determining the relevance of proffered evidence, and its decision will not be disturbed on appeal absent a clear showing that the court abused its discretion”). Regardless of which view would prevail in an evidentiary ruling made today, the district court’s decision to admit this evidence cannot be reversed because there has been no clear showing that the court abused its discretion.
Ill
Finally, although the majority never argues in the alternative that if the evidence that Sherrod was unarmed is relevant it should still be excluded because it is more prejudicial than probative, the majority nevertheless attempts to buttress its holding that the evidence should be excluded by stressing its prejudicial impact. See maj. op., supra at 805 and 807. But the issue of whether its prejudicial impact outweighs its probative value has been waived by the defendants.
To preserve an issue for appellate review, a party must make a proper objection that alerts the trial court and the opposing party to the specific grounds for the objection. United States v. Wynn, 845 F.2d 1439, 1442 (7th Cir.1988); see also Laughlin, 772 F.2d at 1391-92 . “An objection is proper only if ‘a timely objection or motion to strike appears of record, stating the *812 specific ground of objection, if the specific ground was not apparent from the context....’” Wynn, 845 F.2d at 1442 (quoting Fed.R.Evid. 103(a)(1)). The specific ground for reversal of an evidentiary ruling on appeal must be the same specific ground as that stated in the proper objection at trial. Id.; see also United States v. Taylor, 800 F.2d 1012, 1017 (10th Cir.1986), certiorari denied — U.S. —, 108 S.Ct. 123 , 98 L.Ed.2d 81 ; United States v. Medina, 755 F.2d 1269, 1275-76 (7th Cir.1985); United States v. Hickerson, 732 F.2d 611, 613 (7th Cir.), certiorari denied, 469 U.S. 846 , 105 S.Ct. 159 , 83 L.Ed.2d 95 (1984).
On appeal, defendants argue for the first time that even if the evidence that Sherrod was unarmed is relevant under Rule 401, it should have been excluded because under Rule 403 “its probative value is substantially outweighed by the danger of unfair prejudice and confusion of the issue.” (Br. at 37). Defendants failed to preserve this argument.
When evidence that Sherrod was unarmed was offered at trial, the defendants did not object on any ground whatsoever. (Tr. 144-147, 277, 438 and 1285). Despite their failure to object at trial, defendants argue that the issue is preserved for appeal by their motion in limine. Then, because their motion in limine cited no authority but simply requested, without reason, that the court prohibit the introduction of evidence concerning the nonexistence of a weapon (R. at 176), defendants rely on the arguments made to the trial court on the first day of trial. 4 (Reply Br. at 1-3). During the argument, the trial court emphasized that it believed the evidence was relevant, even critical. The defendants correctly interpreted this ruling as definitive, leaving no room for reconsideration, and thus relieving them of the responsibility of objecting at trial on relevancy in order to preserve the issue for appeal. See American Home Assurance Co. v. Sunshine Supermarket, Inc., 753 F.2d 321, 324-25 (3d Cir.1985).
Relevancy, however, is a separate issue from prejudice and each is governed by a separate rule of evidence. See Fed.R.Evid. 401 and 403. Consequently, the issue of whether the prejudicial effect of the admission of evidence outweighs its probative value is not preserved by an objection to the evidence on the separate ground of relevancy. See, e.g., Laughlin, 772 F.2d at 1392-93 . Although the district court’s ruling on relevancy appeared firm, making further discussion at the time or future objections at trial on that issue futile and thus unnecessary to preserve the issue for appeal, the court did not rule on the issue of prejudice. The court’s firmness on one issue does not excuse counsel from interjecting an objection on the ground that the court’s ruling on relevancy would unfairly prejudice his client. See, United States v. Warner, 855 F.2d 372, 374 (7th Cir. Aug. 10, 1988) (counsel has a duty to object, even at the risk of incurring the wrath of the trial court that has stated it does not want to discuss the issue further). But the defendants did not mention prejudice in their written motion in limine, at argument on that motion, or in an objection at trial. This failure to present the argument to the district court waives it on appeal.
*813 IV
The majority states that its holding is consistent with today’s opinion in Ford . Maj. op., supra at 805. It is not. In Ford we “emphasize[d] that this court must and will continue to be vigilant in ensuring that when an officer makes the critical judgment to use deadly force, his or her actions will be subject to scrutiny and review.... [We noted that] an officer oftentimes has only a split second to make the critical judgment of whether to use his weapon. But this fact alone will never immunize an otherwise unreasonable use of deadly force.” Ford, 855 F.2d at 1276 . Yet in Sherrod, the majority allows this vigilance to lapse in favor of the wisdom of a Sioux Indian prayer. Maj. op., supra, at 806. We can only hope that in the Sherrod family’s third attempt to resolve this tragedy, the jury restores the vigilant review the majority has eviscerated.
As shown in the panel opinion, 827 F.2d 195 , and herein, affirmance was warranted.
. The majority states that Berry followed accepted police procedures when he ordered Sherrod and Duckworth to raise their hands. While it may be proper police procedure to order suspects to raise their hands, nothing in the record reflects that police procedures require, encourage or permit an officer to scream at suspects “Get your hands up, you motherfuckers.” (Tr. at 407). The record does indicate that the City of Joliet provided Berry with no training or information regarding the effect the use of profanity has on a citizen during an investigative or felony stop. (Tr. at 529).
. The majority acknowledges that if the absence of a gun is irrelevant to the determination of whether the officer acted reasonably, the presence of a gun is equally irrelevant. However, the majority does not acknowledge the unprecedented nature of this holding. No court has held the absence of a weapon irrelevant and, as to the presence of a weapon, in Davis v. Lane, 814 F.2d 397, 399 (7th Cir.1987), this Court held the opposite — that the presence of a shank was clearly relevant to the question of the reasonableness of a prison guard’s action when he fired his gun at an inmate. The effect of the majority’s holding will be to cause havoc the first time an officer, trying to establish that he acted in self-defense when he fired on a suspect, attempts to introduce evidence that the suspect was armed.
. Although the evidence that Sherrod was unarmed is not dispositive as to the reasonableness of Berry’s action, it is strong and prejudicial evidence against him. However, any prejudicial impact does not make the evidence irrelevant or not impeaching. Instead the issue of whether the prejudicial impact of the evidence outweighs its probative value is a separate and distinct issue from the evidence’s relevance and impeachment value and is a separate ground for excluding the evidence. See infra at 811-12.
. The entire discussion was as follows:
MR. BARASHA: Your Honor, with respect to that third one, it’s the defendants' belief that the existence or nonexistence of a weapon is not relevant.
THE COURT: That motion is denied for the simple reason the nonexistence of a weapon in this case was very important in the last trial and it will be very important in this one.
The fact that these two young men who were in this car never had a weapon, and when the body of Ronald Sherrod was turned over, he didn’t have a weapon either in his left pocket or anywhere else. That’s very important evidence in this case.
MR. BARASHA: Your Honor, it’s the — nevertheless, Your Honor, it's our position as far as whether Officer Berry was justified in shooting Ronald Sherrod was a decision that he had to make in an instant and whether—
THE COURT: He made the decision — Mr. Barasha, Mr. Berry made the decision he said because he thought when Ronald Sherrod did this, Ronald Sherrod was going to pick a gun from his pocket. That’s what Mr. Berry thought.
MR. BARASHA: That’s correct, Your Honor. THE COURT: It is very important to show he was mistaken. No, that will be denied.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8963638. Public record. Not legal advice.