Citing faulty jury instructions, the Seventh Circuit recently vacated a jury verdict in an excessive force case arising from a confrontation at a Chicago Red Line stop. Doornbos v. City of Chicago, No. 16-1770 (Aug. 18. 2017). In doing so, the Court offered guidance for when officers conducting Terry stops should announce their identity before making contact with the individual they are investigating.
The plaintiff, Joseph Doornbos, claimed that as he was leaving the Wilson Avenue stop on the Chicago Red Line, he was suddenly grabbed by an unknown man, thought he was being robbed, and struggled until he was tackled by several men before finally hearing the men announce themselves as police. The officers, by contrast, claimed that one officer approached Doornbos to investigate an apparent violation of the Red Line’s ban on open alcohol. The officer acknowledged that he was in plain clothes but said that he showed his badge and announced his role when grabbing Doornbos. Doornbos suffered minor injuries in the scuffle. He was charged with resisting arrest but acquitted at trial.
Then, the plaintiff sued the officers for excessive use of force. The plaintiff asked for a jury instruction that an officer must have reasonable suspicion that a person is armed before conducting a pat-down in the course of a Terry investigative stop. The trial court denied that request. Then, while the jury was deliberating, it asked the court if officers need to identify themselves when conducting Terry stops. The trial court answered “no.”
On appeal, the Seventh Circuit held that the trial court erred in denying the plaintiff’s proposed jury instruction, because the instruction accurately stated the law and because the pat-down was likely unreasonable. Similarly, the Seventh Circuit held that the trial court’s answer to the jury’s question was incorrect, because while some unusual circumstances may justify officers not identifying themselves, it is usually unreasonable for officers not to announce their identity when conducting a Terry stop. These combined errors were prejudicial because the key issue at trial was the witnesses’ credibility, and, in particular, whether the police officers identified themselves before any physical contact was made with the plaintiff.
Furthermore, the Seventh Circuit emphasized that an officer’s failure to identify himself or herself during a stop is a police tactic, and, like all tactics, its reasonableness depends on the situation. Sometimes the circumstances may justify the tactic. For instance, if the police are approaching a high-ranking gang leader with a history of violence or a person reported to be armed and dangerous, announcing their identity might cause the subject to flee or increase the risk of violence. But the court said that without a specific reason, a Terry stop conducted by a plain clothes officer who does not announce his office before making physical contact is likely to be unreasonable, because unannounced stops increase the risk of a violence confrontation and provoke community resentment. The Court supported its observation by citations to several recent Department of Justice investigations into municipal police departments, including the Chicago Police Department, and noted that these reports criticized unannounced Terry stops for these reasons.
While the technical grounds for vacating the jury’s verdict are case-specific, the Seventh Circuit’s discussion of the reasonableness of unannounced, plain clothes Terry stops applies more broadly. Going forward, plain clothes police officers conducting a Terry stop should consider whether they have a specific reason why the officers need to maintain the element of surprise. If they do not, the officers would be wise to announce their office before any contact with the subject.