News Flash: Kicking People To Sleep Is Generally Illegal (duh)

UNITED STATES v. PERKINS, 470 F.3d 150 (4th Cir. 2006), No. 05-4798, 2006 U.S.App. LEXIS 29297, appeal from USDC-VAED, before Circuit Judges Williams and Gregory and USDJ-WVSD Johnston sitting by designation, opinion by Williams, filed 29 Nov 2006.

LONG STORY SHORT: When a subject is lying face-down and not resisting, kicking him and stomping on his head is a felony violation of federal civil rights law, especially if the subject sustains severe injury. Binding in MD, NC, SC, VA, WV.

FACTS: Just before midnight 13 Oct 2003, Officers Tweedy and House of the Petersburg, Virginia Police Department stopped motorist Koonce to issue him a warning ticket for driving without headlights. Koonce ran away and after a lengthy foot chase Officer Tweedy finally pushed him to the ground and pepper-sprayed him. Officer House ran up and tried to handcuff Koonce, who grabbed Officer House's ankle. Officer House punched Koonce three times in the arm without result, so Officer Tweedy stomped on Koonce's head until Koonce said "all right man, all right" and let Officer House cuff his left wrist. Officer Tweedy radioed for backup and Sergeant Waldron put out the call, but Officer House radioed that the subject was under control, so Sergeant Waldron cancelled the backup call. Officer Fisher responded to the scene anyway, where Officer House asked him to secure Koonce's right arm. Officer Fisher then saw Officer Tweedy walk up to Koonce, kick him two or three times in his side, and stomp on his head three times. Koonce was now bloody and motionless when Defendant, an off-duty officer, ran up to him and kicked him twice. Finally, Officer Tweedy stomped on Koonce's head twice more, Defendant pulled him away, and Officers Fisher and House cuffed Koonce's other wrist. Koonce arrived unconscious at the hospital with multiple skull and facial fractures, punctured right lung, bruised left lung, and bleeding and contusions in the brain. On the Glasgow coma scale, he scored a 1 for mental status (eyes remained closed), 1 for verbal response (not speaking), and 3 for motor response (moved away from pain stimulus). Officer Tweedy wrote a police report claiming that Koonce had resisted and that Officer Tweedy had used no more than necessary force to control him.

PROCEDURE: Officer Tweedy pleaded guilty to violation of civil rights (here, the Fourth Amendment protection against unreasonable seizure) resulting in bodily injury, a felony per 18 U.S.C. § 242, and also to falsifying a police report with intent to obstruct a federal investigation, a felony per 18 U.S.C. § 1519, receiving 108 months. The United States indicted Defendant for violating 18 U.S.C. § 242. At trial, Officers House and Fisher testified that they had seen Defendant kick Koonce, demonstrated same on a use-of-force dummy, and testified about their department's UOF policy and DT training. Upon being asked whether there was any law enforcement reason for such kicking, and an overruled defense objection on grounds of ultimate issue, Officer House testified that he saw no reason for it. Officer Fisher, upon being asked whether Defendant's kicking of Koonce was in his training and experience reasonable, answered no, and further testified that other subject control techniques would have been appropriate, all without defense objection. Three other officers, one of whom was Defendant's DT instructor, all testified that the kicking was unreasonable, although they had not seen it. Defendant did not object to any of that testimony. The physician who attended Koonce at the hospital testified that blunt trauma caused the puncturing and brusing of his lungs. The trial judge instructed the jury that bodily injury, an element of the 18 U.S.C. § 242, is "a cut, abrasion, bruise, fracture, or other disfigurement, or mere physical pain, or any other injury to the body, even if not significant, severe, or permanent." The jury convicted Defendant as charged, and he got 51 months. He appealed his conviction.

DECISION: Defendant argued that allowing the five officers to testify to an opinion that Defendant's force was unreasonable, without qualifying them as expert witnesses, was error. The Fourth Circuit agreed that the three officers not at the scene should not have been allowed to offer opinion testimony without having been qualified as experts. However, since Defendant did not object to their testimony on that basis, the standard of review was the very tough "plain error" level, which it was not. Even had Defendant objected, Officers House and Fisher were eyewitnesses and did not have to be experts to offer opinions that what they saw was unreasonable. The often hairsplitting difference between legal "objective reasonableness" and dictionary "unreasonableness" was not present here, and the officers' nonexpert opinion testimony did not supplant the jury's common sense. Next, Defendant argued that he could not have caused any bodily injury because Koonce was already unconscious and incapable of feeling further pain when Defendant kicked him, and the Glasgow pain stimulus test was insufficient as a matter of law to prove pain sensitivity. The Fourth Circuit disagreed, since "bodily injury" need not be cataclysmic, just painful or impairing and only temporarily. A reasonable jury could have found from the attending physician's testimony that Defendant was the one who caused the brusing and puncturing of Koonce's lungs. Conviction and sentence AFFIRMED in all respects.

EDITORIAL: Jeez Louise, take a chill pill guys! This is one of the more off-the-chain cases I've seen, and I've seen more than some. Remember, it says "To Protect and Serve" on the car, not "To Stomp and Kick." Obviously Rafael Septien here had some preexisting issues going on, but you can get help for that, or find some other job. And then our man says even if I tried to boot him through the goalposts, that wasn't bodily injury because he was already asleep and couldn't feel it. Pray givest thou unto me a break. Yup, didn't do NOTHIN. One more reminder why I don't take criminal defense cases anymore except for officers, and if THAT officer had tried to hire me, I would have kicked HIM into next week. Also, here's another reminder that if you don't like what the other side's witness is about to say, then OBJECT for petesakes. If you make a crap sandwich at trial, it is mighty hard for us appellate lawyers to whip up enough fries and milkshakes to get two out of three appellate judges to devour the main course. I'm only a miracle worker, not a magician. Since, as part of the opinion pointed out, 18 U.S.C. § 242 is the criminal analogue of 42 U.S. § 1983, shall we even TALK about the civil settlement. And it all started with a no-headlight stop. BTW, the stupid story about gangstas killing everybody in the first car to blink their lights at them IS AN URBAN LEGEND!!! IT IS NOT TRUE! So blink away and save yourself years in prison and several Ferraris worth of civil damages.