Opposition Brief — Stevenson v. District of Columbia Metropolitan Police Department

No. 01-183

IN THE

SUPREME COURT OF THE UNITED STATES

ROBERT LOUIS STEVENSON,

Petitioner,

V.

DISTRICT OF COLUMBIA

METROPOLITAN POLICE DEPARTMENT, ET AL.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the

District of Columbia Circuit

BRIEF IN OPPOSITION

ROBERT R. RIGSBY,

Corporation Counsel

CHARLES L. REISCHEL,

Deputy Corporation Counsel

*EDWARD E. SCHWAB,

Assistant Corporation Counsel

Office of the Corporation Counsel

441 Fourth Street, N.W., 6th floor

Washington, D.C. 20001-2714

Telephone: (202) 724-5692

* Counsel of Record

ST

COUNTER-STATEMENT OF

QUESTION PRESENTED

Whether in this action under 42 U.S.C. § 1983 against

police officers, where petitioner placed in issue his own motive

for flight to evade arrest through his own testimony and his

counsel’s opening statement to the jury, the District Court abused

its discretion in receiving physical evidence offered by the

arresting officers that contradicted petitioner’s testimony and

counsel’s statement of his motive.

TABLE OF CONTENTS

Page

OPINION BELOW 2.400555 60s eee l

COUNTER-STATEMENT OF THE CASE ............ l

A. The ProcesGQ@.. ....cscceseseeenseecanaeewes l

B. Backgrowndl FOO0 «oi fees seeneesitnusseesess 2

C. The Challenged Evidentiary Rulings ........... ~—

D. The Court of Appeals’ Ruling ................. 8

REASONS FOR DENYING THE PETITION .......... 8

CONCLUSION 1/3 ee 13

TABLE OF AUTHORITIES

CASES

Cummings v. Malone, 995 F.817 (8" Cir. 1993) ..... 12, 13

Graham v. Conner, 490 U.S. 386 (1989) .............. 10

Palmquist v. Selvik, 111 F.3d 1332 (7™ Cir. 1997) ... 10, 11

Sherrod v. Berry, 856 F.2d 802 (7" Cir. 1988) (en banc) . 11

United States v. Wells, 591 U.S. 482 (1997) ............ 9

OTHER

3 Weinstein’s Evidence § 607[04] p. 607-55

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il

No. 01-183

IN THE

SUPREME COURT OF THE UNITED STATES

ROBERT LOUIS STEVENSON ,

Petitioner,

Vv.

DISTRICT OF COLUMBIA

METROPOLITAN POLICE DEPARTMENT, ET AL.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the

District of Columbia Circuit

BRIEF IN OPPOSITION

OPINION BELOW

The opinion of the United States Court of Appeals for the

District of Columbia Circuit, is reported at 248 F. 3d 1187.

COUNTER-STATEMENT OF THE CASE

A. The Proceedings.

This action was filed by petitioner Robert Louis Stevenson

against the District of Columbia Metropolitan Police Department

(MPD) and five police officers, under 42 U.S.C. § 1983,

alleging excessive force in violation of the Fourth Amendment

in arresting him and stopping his flight to evade arrest. The case

was tried to a jury over an eight-day period, and the jury

returned verdicts in favor of the the police officers on all of

Stevenson’s claims. (J.A. 439-41). Stevenson challenges an

evidentiary ruling that admitted a gun into evidence.

B. Background Facts.

On March 7, 1996, MPD Officer Demetrius Cole was

working off-duty, but in uniform, providing security at a

McDonald’s restaurant in Washington, D.C. (J.A. 301). At

about 9:00 p.m., Stevenson drove a 1988 Chrysler with

Maryland tags into the parking lot and entered the drive-through

lane; Larry J. Wallace was the passenger in the car. (J.A. 202,

302). The car had a broken rear window, which made Officer

Cole suspect that it had been stolen. (J.A. 302). Cole confirmed

in a telephone call to the MPD that the car had been stolen; he

requested police assistance. (J.A. 302-04).

Two MPD cars, each with two officers, responded to the

restaurant. Cole and two other officers approached the Chrysler

from the front and blocked its path with guns drawn. (J.A. 302-

04, 307, 318-19, 333-34). Two others approached from the

rear. (J.A. 322-34). The officers surrounded the car and

ordered Stevenson to put the car in park and to show his hands.

(J.A. 308-10, 323-24). Instead of doing that, Stevenson

attempted escape by driving the car away. (J.A.310-11). What

happened next is disputed.

According to the officers, Stevenson backed up the Chrysler

in the direction of two of the officers, and struck the car behind

him in the drive-through lane. (J.A. 310-11). He then pulled

forward and to his right, and struck an officer, who landed on the

hood. (J.A. 310-11, 335-39, 349-53, 356-60). Stevenson

backed up again, throwing that officer off the hood, and then

drove forward in the direction of that officer and another officer.

(J.A. 310-11, 335-39).

The officers fired their service pistols at the Chrysler,

attempting to prevent Stevenson from hitting them again. (J.A.

310-11, 317, 325-27). Stevenson then backed the Chrysler up,

spun it around completely, and drove at the officer who had been

behind him. (J.A. 325-27). To protect themselves from death or

serious injury, the officers repeatedly fired their service pistols

3

at the car, wounding Stevenson and Wallace. (J.A. 310-14, 325-

27). The car stopped, and they were removed from it and placed

under arrest. (J.A. 312).

Stevenson admitted that he attempted to escape in the car and

maneuvered it in much the manner described by the officers.

(J.A. 206-07, 228, 23 1). He denied that he attempted to hit, or

did hit, any officer and denied that any Officer was endangered.

(/d.). He argued that the use of deadly force was not necessary

to protect the officers and was not permitted to prevent his

escape.

The jury decided the case in favor of the District and the

officers in all respects, and it must be assumed that the jury

accepted the testimony of the officers. (J.A. 439-41). Stevenson

did not contest the sufficiency of the evidence to support the

verdict or challenge the jury instructions in the Court of Appeals.

C. The Challenged Evidentiary Rulings.

The police recovered a loaded MAC 11 submachine gun

from Stevenson’s car after the shooting. It is a large weapon —

about 1 1% inches from the muzzle to the butt and about the same

distance from the top of the gun to the bottom of the magazine.

(J.-A. 164). Stevenson moved in limine to exclude any

references to the machine gun at trial. (J.A. 125). Stevenson

argued that the gun had no relevance, because the police officers

did not know about the gun when they attempted to arrest him

and to stop his flight. He asserted that its prejudicial effect

would outweigh any probative value. (/d.).

The District argued that the gun had probative value, because

it would assist in establishing Stevenson’s motive in trying to

escape and would cast doubt on the credibility of his statement

of his motive. (J.A. 127-28). Both Stevenson and his expert

witness had attributed Stevenson’s attempt to flee from

McDonald’s as motivated by fear of the police with their drawn

weapons and his being “terrorized” by the police. (Id.). The

4

District argued that the jury could reasonably infer that

Stevenson sought to escape because he knew that his parole

would be revoked ifhe were arrested with an automatic weapon

in the car. (/d.).

The District Court denied the motion based on its finding that

“Larry Wallace’s possession of a gun during the events in

question is more probative than prejudicial as evidence of the

plaintiff's desperation, as a convicted felon on parole who is in

the presence ofa firearm, to avoid arrest and his intention to use

his vehicle as a weapon and is admissible in the government’s

case in chief.” (J.A. 114).' The gun was admitted during the

testimony of the evidence technician (an MPD officer) who

investigated after the shooting and collected evidence from the

scene. (J.A. 292-93).

Stevenson’s tactics and testimony at trial also had a bearing

on the admissibility of the gun. In her opening statement,

Stevenson’s counsel stated her client’s testimony would be that

he was terrified by his encounter with the police and that was his

motive for trying to escape. She said:

He’|l tell you he was terrified. He will tell you he had

no idea that the tags of the car had been called in or that

the tags of the car were stolen.

' As discussed below, at trial, petitioner adopted a strategy of

painting himself as a “changed man” — that he had gotten into

trouble as a young man due to a drug problem he developed when

a soldier in Vietnam but had turned his life around and was now

a “changed man.” The District Court ruled that testimony he

offered to support his changed man theory opened the door to

“heavy cross-examination.” (J.A. 218-19). It also offers

substantial support for receiving the gun into evidence.

Obviously, the District Court could not have anticipated this

testimony and did not rely on it for its pretrial ruling.

iii

5

He’ll tell you that at that moment, he had no idea why the

~ Officers were pointing their guns at him. Robert will

testify that all he could think about was that the police

were trying to kill him, and all he wanted to do was to

get away. [J.A. 184]

Stevenson’s counsel attempted to dissociate Stevenson from the

gun, stressing that the evidence would show “there was a gun

found on the person of Larry Wallace who was the passenger in

the vehicle” after the shooting was over. (J.A. 187).

Stevenson’s counsel stated the evidence would show that

Stevenson’s problems with the law resulted from a drug habit

that he picked up while he was a soldier in Vietnam from 1968

to 1970 and could not shake after he returned home, but that he

was now a “changed man.” (J. A. 187-88). Counsel stated:

Robert has gotten in trouble over the years over crimes

stemming from his drug habit ....

Today as we sit here in court, however, you will hear

Robert Stevenson testify that he is a changed man. He’s

gota family. He’s got four little boys that he loves very

much. He will tell you that he’s educated himself. He’s

got a bachelor of science degree, a bachelor of arts

degree, and most recently he’s applied to be a member

of a writing program which he plans to attend in the

future. [J.A. 188]

During his direct examination, Stevenson stated that he had

grown up in Washington and had attended public schools through

junior high. (J.A. 196). He said he was drafted into the Army

in 1968 and served in Vietnam, where he earned a bronze star;

he was honorably discharged in 1970. (J.A. 196-97). He

developed a drug habit and was not able to keep a job he

secured as a security guard at the General Accounting Office.

(/d.).

6

He said that he developed problems with the law and ended

up in prison. (J.A. 197). While in prison, he earned a GED and

degrees from “Coffin” (sic) and Morgan State universities. (J.A.

198). He said he has three children, one age 6 and twins age 5,

and that at the time of trial he was still the sole means of support

for these children. (J.A. 200).

He said that, on March 7, 1996, he borrowed a car from a

friend and went from Anacostia with Larry Wallace to visit

friends who lived in the neighborhood near Capital Hill where

he grew up. (J.A. 201-02). He first met Wallace in the early

80's, and he met him again after Stevenson was paroled in about

1994. (J.A. 202-03). Stevenson denied that he had a gun but

said that Wallace had told him that he had a gun with him; it was

on his person but Stevenson did not know where. (J.A. 195,

202-03). On the way back from visiting their friends to return

the car, Stevenson drove into the McDonald’s restaurant. (J.A.

202).

Stevenson described the encounter with the police and the

shooting that occurred; he said that he tried to escape because

he was scared.

Before I can take the car out of gear or figure, I notice

the police car coming towards me fast with the light,

siren, what have you right towards me, fast, right to me.

And stop. Right in front of me. And the officers jump out

with their guns drawn; this other officer comes out of the

store with his gun drawn. They hollering. All of them

hollering.

I’m not going to show exactly the particular words they

using but they hollering at me. The. guns are pointing at

me.

I immediately —I’m scared. | put the car in reverse; and

when I put the car in reverse, I turn it to my right to get —

to take — kick the back out, because I can’t go forward

seeeceeeeeenenreeeneeeemeaaanaramamsaataaaeanaaietiasiitcemamemaamaaitintiiiiniiaiiataniidiialll

; 7

because they’re in front of me, and there’s some parked

cars to my — to my immediate right, so I can’t go around

them. The only way I can go back.

(J.A. 205-06, emphasis added). Minutes later, he repeated that

he tried to flee because “I just got scared and — my initial

reaction was to back the car up. I was trying to get away from

them. And I didn’t — I just didn’t believe that they were

shooting.” (J.A. 209).

On cross-examination, Stevenson admitted that he was

currently incarcerated as a result of a conviction of an armed

robbery that he committed with Larry Wallace just two days

before the incident at McDonald’s restaurant on which this

action is based. (J.A. 220). He said that he met Larry Wallace

at the Maryland penitentiary when both were incarcerated there.

(J.A; 222). Both he and Wallace were convicted of the armed

robbery that they committed on March 5, 1996. (J.A. 223).

Stevenson again stated that he was scared when he was

surrounded by police with their weapons drawn but he did not

believe they would shoot; his initial response was to get away.

(J.A. 228). However, he acknowledged that he was concerned

that ifhe “and Mr. Wallace had to get out of that car the presence

of that semiautomatic weapon, that it would result in the

revocation of [his] parole.” (J.A. 229).

D. The Court of Appeals’ Ruling.

The Court of Appeals reviewed the District Court’s

evidentiary ruling for an abuse of discretion; it held that the court

did not abuse its discretion in ruling that the gun was admissible

and in receiving it into evidence. (App. 5a-7a). The gun was

“probative of an important issue in the case, namely which

version of the events — Stevenson’s or the officers’ — was

true.” (App. 7a). It was relevant because “it tends to support

the proposition that Stevenson was intent on escaping at all costs

and in so doing placed the officers at risk.” (App. 6a). The

EE .,..,..

8

court also affirmed the District Court’s ruling that the prejudicial

effect of the gun did not outweigh its probative value. (App. 6a).

REASONS FOR DENYING THE WRIT

1. Petitioner’s decision in the trial court to place in issue his

motivation for flight makes this case an improper vehicle for the

issue he presents. Petitioner asserts that the decision of the

Court of Appeals conflicts with holdings of other courts of

appeal on the admissibility of the evidence of the motives of a

plaintiff alleging excessive force in overcoming his flight or

other resistance to arrest. He argues that if the defendant police

officers were unaware of the plaintiff's motivation at the time

they used force, evidence of that motivation is inadmissible

hindsight evidence.

Stevenson is the party who put the question of motivation in

attempting to escape at issue in the case. Stevenson’s counsel

stated in her opening statement that the reason he attempted to

escape was that he was terrified by the police show of force and

wanted to get away due to his fear. That was Stevenson’s

testimony at trial. It was also the motivation that Stevenson had

stated during discovery and the principal ground on which the

District opposed the motion in limine which sought exclusion of

the gun; it was also the deposition testimony ofhis expert. (J.A.

127-28). His trial tactic was to blame the police for his flight.

His theory was that the officers’ show of force compelled him

to flee, and the officers then used his flight to justify the force

they used.

The gun was probative in offering a far different motive in

fleeing from the police. When the police encountered him,

Stevenson was a felon on parole who was with another felon

(Wallace) who was also on parole. They were in a stolen car

and had a machine gun in their possession. They had committed

an armed robbery together two days earlier for which Stevenson

was convicted on a plea of guilty. Getting caught with that gun

would most certainly have led, at the very least, to the

rr ,,..........

9

revocations of their paroles. As the District Court ruled in its

April 26, 2000, Order, this evidence was probative of

Stevenson’s “desperation, as a convicted felon on parole who is

in the presence of a firearm, to avoid arrest and his intention to

use his vehicle as a weapon” and of “Larry Wallace’s status as

a felon and his possession of a firearm” and his “motivation to

encourage the plaintiff to escape the custody of the police

officers at all costs.” (J.A. 114). The presence of this gun and

the resulting dire consequences offered substantial support for

the officers’ testimony that Stevenson drove at, and hit, police

officers who surrounded him ina desperate attempt to get away.

That is so without regard to whether the officers knew petitioner

and his partner were armed.

Having placed the question of motive in issue, petitioner is

| not now in a position to argue that the issue was irrelevant. He

invited the alleged error he now challenges and that is an

important factor militating against a grant of certiorari. Cf.

United States v. Wells, 591 U.S. 482, 488 (1997). His trial

tactics made the issue relevant even if the gun were otherwise

excludable.

2. Petitioner alleges that the decision of the Court of

Appeals in this case directly conflicts with the decisions of other

circuits. There is no such conflict. Only two of the decisions

from other circuits on which petitioner relies involves or discuss

a situation like we have here where a plaintiff sought to exclude

evidence in order to insulate his testimony from contradiction on

matters he put in issue. Those decisions support the rulings

challenged here.

Petitioner asserts that information received by an officer

after-the-fact cannot provide a justification for an officer’s use

of force. Petitioner relies on Graham v. Conner, 490 U.S. 386,

397 (1989) (“The reasonableness of a particular use of force

must be judged from the perspective of a reasonable officer on

_ the scene.”); Palmquist v. Selvik, 111 F.3d 1332, 1341 (7" Cir.

~ 10

1997) (Officers may not justify a use of deadly force on

information “not within [their] personal knowledge at the time

of the shooting.”). He argues the gun was inadmissible under

these principles. In making this argument, petitioner fails to

acknowledge that the District did not seek admission of the gun

to justify the shooting nor did the court below admit it for that

purpose. The gun was offered and admitted because it offered

strong evidentiary support for the officers’ version of the facts

— that appellant hit one officer and endangered others in his

frantic attempt to escape their attempt to arrest him.

In addition to the testimony on his motive for escape,

Stevenson and his attorneys adopted a trial strategy of attempting

to paint Stevenson as being something he was not. They

attempted to show that Stevenson had gotten into trouble with the

law as a result of a drug problem he picked up while a soldier

in Vietnam. His counsel stated that he was now a “changed

man.” In his testimony at trial, Stevenson omitted the fact that he

was incarcerated. He stated that he was then the sole support of

his three children and testified concerning his educational

accomplishments during an earlier incarceration. In fact, he was

nota “changed man.” He had committed an armed robbery with

Larry Wailace just two days prior to the incident at the

McDonald’s restaurant. The fact that they were together two

days later in a stolen car with a machine gun in their possession

gave the jury a basis to evaluate this claim ofreform. This is the

last day he was a free man, because he was incarcerated from

that day until the day of trial. Again, appellant is the party who

put this matter at issue. The gun was admissible to counter the

“changed man” testimony as well as the testimony that he

attempted escape because he was “terrorized” by the police.

We do not believe there is authority from other circuits to

exclude this evidence under these circumstances. For example,

petitioner argues that the Seventh Circuit excludes all evidence

relating to whether the plaintiff was armed and of his motive to

resist arrest where that information was unknown to the officer

1]

at the time of the use of force, even when the fact of resistance

is disputed. He asserts that the law of the Seventh Circuit is that

“when considering a charge of excessive force, evidence outside

the time frame of the shooting is irrelevant and prejudicial.”

Palmquist v. Selvik, supra, 111 F.3d at 1339 (citing Sherrod v.

Berry, 856 F.2d 802 (7" Cir. 1988) (en banc).

However, in its leading case, the en banc decision in

Sherrod v. Berry, the Seventh Circuit explicitly stated that its

decision “should not be interpreted as establishing a black-letter

rule precluding the admission of evidence which would

establish whether the individual alleging a § 1983 violation was

unarmed at the time of the incident.” 806 F.2d at 806. The

Court stated that a weapon would be admissible for precisely

the reason it was allowed in evidence here by the District Court.

The Court stated a gun could be introduced to challenge “the

credibility of a witness” which “can always be attacked” and

that “impeachment by contradictiorr is a technique well

recognized in the federal courts by which specific errors in the

witnesses’s testimony are brought to the attention of the trier of

fact.” Id.. citing, 3 Weinstein’s Evidence { 607[04] p. 607-55

and { 607[05] p. 607-76. These are the grounds on which the

District Court exercised its discretion to admit the gun into

evidence.

In light of Sherrod, petitioner’s heavy reliance on decisions

of the Seventh Circuit as allegedly conflicting is plainly

misplaced. Similarly, the decision of the Eighth Circuit in

Cummings v. Malone, 995 F.817 (8" Cir. 1993), does not

conflict with the decision here. Instead, it supports the

challenged evidentiary ruling. There, the plaintiff, a prison

inmate, raped a female guard. Shortly after the guard reported

the rape, the plaintiff was called into a prison investigator’s

office for questioning regarding the rape. He alleged that he was

severely beaten by a number of prison guards and other prison

officials during the questioning. Prior to trial, the District Court

excluded all references to the rape allegation; to convictions for

12

assault and attempted rape of the female guard; and assaulting

another (male) guard on the same day. 995 F.2d at 823. The

District Court ruled that this evidence was not relevant to the

question of whether the guards had assaulted the plaintiff and

that it was unduly prejudicial. Jd.

At trial, the plaintiff testified in his direct examination that

he did not know that guards took him to the investigator’s office.

995 F.2d at 824. This testimony was contrary to his deposition

testimony and to the allegations in his complaint, which were

that he was taken there for questioning about the rape. Jd. He

also testified that he did not assault the male guard. Jd.

However, he had been convicted of assaulting him. Jd. The

District Court refused to permit evidence countering this

testimony, relying on its pretrial ruling. Jd. at 824-25.

On appeal, the Eighth Circuit held that the District Court did

not abuse its discretion when it entered the pretrial order

excluding references to the rape and the convictions for assault

and attempted rape. 995 F.2d at 823-24. However, it held that

“the district court committed reversible error in excluding

testimony about the sexual assault conviction once Cummings

[the plaintiff] ‘opened the door’ to these issues on direct

examination.” Jd. at 823. The court erred in refusing to allow

the prior inconsistent statements, evidence of the conviction of

assault, and specific felony convictions. Jd. at 827.

Here, these principles of curative admissibility apply with

special force. Petitioner went much further than did the plaintiff

in Cummings. Petitioner’s trial strategy was first to blame the

police for his decision to attempt escape. Then he tried to

convince the jury that he had gotten into trouble when he was

young to support a drug habit he had acquired in Vietnam, but he

is now a “changed man.” The District and the officers were

entitled to counter the testimony he offered to advance these

strategies. The gun was important in that effort, and the District

Court did not abuse its discretion in receiving it into evidence.

13

CONCLUSION

The petition should be denied.

\

Respectfully submitted,

ROBERT R. RIGSBY,

Corporation Counsel

CHARLES L. REISCHEL,

Deputy Corporation Counsel

*EDWARD E. SCHWAB

Assistant Corporation Counsel

Office of the Corporation Counsel, D.C.

441 Fourth Street, NW, 6th floor

Washington, DC 20001 |

*Counsel of Record |

September 21, 2001