P v. Brown (1st Dist., Div.4) PC 69 Conviction Reversed for Instructional Error and Improper Expert Witness Testimony

Mr. Brown was a 67 year old, 140 lb. man riding his bicycle on the sidewalk at  night without a light.  A policeman, zealously enforcing the cycling laws, yelled for Brown to stop.  He didn't; he tossed a baggie of coke on the sidewalk and kept riding.  His attempt to avoid police contact ended when he found himself the recipient of a three punches to the noggin and a knee to the ribs (one broken) from three large policemen.  Brown got the worst of it, although one of the policeman broke his knuckle on Brown's skull.

Brown was charged with the coke (not at issue on appeal) and PC 69, the crime of "using force and violence to resist an executive officer in the lawful performance of his duties".  

At trial, the policemen testified that as Brown tried to ride away, one of the policemen tackled Brown at which time Brown began to throw punches at the policemen.  The tackler said he delivered a "compliance strike" (ordinary folks punch people, government agents "issue compliance strikes"-unless they think you are armed and then they "dispatch a disabling metallurgic projectile of conical form").  This punch to the gut/compliance strike had no effect upon the 140 lb., 67-year old, they claimed, so another officer followed up with three more compliance strikes (one in the ribs and two to the skull).  

Brown's testimony was, without surprise, different.  Brown said that while he was trying to get away, he rode his bike into a curb and flipped over the handlebars.  He said one officer jumped on top of him, kneed him in the ribs and punched him three times in the head.  The other officers never laid a hand on him, Brown said, they just handcuffed him.  He denied trying to punch any policeman, "I wouldn't even try to--I couldn't win anyway."

The State buttressed their case with an expert witness, a policeman who testified that the law allows the police to use reasonable force.  The witness went on to give his legal definition of reasonable force and opine that Brown had engaged in "assaultive behavior" against the officers.  The trial judge instructed the jury on PC 69 and the lesser offence of PC 148.  The jury convicted on the PC69 count.

A First District panel reverses the PC 69 conviction.  It reverses for two reasons.  First, the trial court was required to give an instruction for PC 240, simple assault, as a lesser included offense of PC 69, and it did not.  Second, it was reversible error to permit the expert witness to testify as to matters of law and also error to allow him to give his opinion that the officers simply "did what they were trained to do".  

Both sections of the analysis in this opinion are thoughtful and well researched.  The analysis of expert testimony hits the mark in pinpointing the pitfalls of "expert witnesses" when the topic of expertise is legal in nature.  Then the line between "assisting the fact finder" and "telling the jury how to decide" can become too narrow.  It is the jury who has the task of deciding how much police force is reasonable, not the police.  The opinion puts it quite eloquently.

The law provides a generous mantle of protection to law enforcement officers accused of excessive force, but also contemplates that, where such questions are serious enough to be tried, juries will have a vital role in deciding what constitutes objectively reasonable force, bringing with them their independent sense of the values of the community in which they sit. 

In the end the issue of whether Brown was tackled and tried to punch his way out of an arrest or whether one officer lost his head and socked a compliant old homeless man will get a second look.  This time with an instruction for PC 240, and without a police force expert.