Does video of arrest contradict South Bend police?

As Royce Love exited his van, police officers with guns drawn shouted for him to get on the ground. But he ignored their repeated commands, forcing the police to shoot him with stun guns and unleash a police dog on him.

At least that’s how the South Bend police officers, testifying under oath at Love’s trial, described the end of the August 2013 car chase, which resulted in charges against Love of resisting law enforcement and mistreating a police animal. A jury found him guilty on all counts last year.

But the officers’ statements are in question after the Indiana Court of Appeals this month reversed two of Love’s convictions, finding that video footage of the arrest showed he complied with the police and lay on the ground before the officers deployed their Tasers and the dog.

The reversal of Love’s convictions comes as South Bend police face scrutiny over several cases of alleged excessive force and civil rights violations.

Frustration among some community members boiled over earlier this month when demonstrators interrupted a panel discussion on police and community relations to call for the firing of one officer, Aaron Knepper, who has been involved in at least four incidents that led to complaints about his conduct.

Against the backdrop of strained relations between local police and some community members, the Royce Love case raises new questions about how officers justify and explain the use of force in some instances. Two of the officers in the Love case were involved in a separate case in 2010 that also raised questions about excessive force and ended with an appeals court reversing a man’s conviction.

Love, for his part, has filed a lawsuit against the officers and even called for prosecutors to charge the officers, arguing they lied under oath.

“I think the officers should be charged with battery and perjury. That would only be fair,” Love, 36, said in an interview with The Tribune. “I know there are some good officers out there, and I know there are some bad officers, and I just wish the good officers would stand up and hold the bad ones accountable.”

Yet whether the officers knowingly made false statements is still under debate, and it’s unclear whether the appellate court’s ruling, which seemingly refuted the officers’ sworn statements, could lead to discipline, criminal charges or any other consequences.

St. Joseph County Prosecutor Ken Cotter last week said he had no “concerns (the officers) exaggerated or didn’t tell the truth.”

But he acknowledged the larger impact the case could have: If the Court of Appeals decision stands, defense attorneys in future cases could point out the fact that the officers were untruthful in a previous case.

“I would never be able to charge a case in which they’re the main witness because I would not be able to verify what they’re saying is true,” Cotter said.

The arrest

Love’s case started early on the morning of Aug. 4, 2013, when police officers tried to pull him over for running a red light and stop sign. Instead of stopping, Love led police on a five-minute-long chase that ended in an alley near downtown.

After Love got out of his van, police said, he refused to obey officers. In one police report, officer Christopher Deak wrote that Love was trying to fight officers, describing him as “extremely combative.”

In police reports and testimony at trial, the officers said they used a Taser in an effort to make Love obey their commands. Police claimed that when the Taser didn’t work, K-9 officer Larry Sanchez deployed his dog, Bacca, who bit and gripped Love’s arm.

But according to the Court of Appeals, video captured by a police dashboard camera told a different story, showing that Love lowered himself to all-fours about five seconds after he exited his van, and that he lay on his stomach 10 seconds later.

A struggle, during which officers deployed Tasers and the dog, started only after Love was on the ground, according to the court’s ruling. The court found Love struck the police dog only to protect himself from excessive force.

When police took Love to a hospital for treatment after the arrest, he received 21 stitches, according to a police report, and tests showed he had a blood alcohol content of 0.21 percent, well over the legal limit for driving.

By a 2-1 vote, the three-judge appellate panel reversed one of Love’s convictions for resisting law enforcement and his conviction for battering the police dog. Love did not appeal a separate conviction for resisting law enforcement in connection with the vehicle chase.

Love has had previous run-ins with the law. He served prison sentences after being convicted of robbery on two occasions — once in 2003 and once in 2009 — and possession of a firearm by a felon in another 2009 case.

In the 2003 case, Love, then 22, was found guilty of robbing and severely beating 72-year-old Willis Scott on Van Buren Street in 2001, leaving the older man in a coma.

Testimony at issue

Cotter, the county prosecutor, this week maintained that the video of Love’s arrest in the 2013 case did not show that the officers gave false statements. He had not viewed the video but said his staff briefed him on the footage.

He said the deputy prosecutor who tried the case, Kim Schultz, acknowledged the seeming discrepancies between the dash cam video and officers’ testimony, but she told the jury that the officers’ disputed statements referred to Love’s actions before he came into view of the camera.

“When the officers were testifying, they were discussing incidents other than the time in which the video was capturing what was going on,” Cotter said.

Cotter said he expects the Indiana attorney general’s office to ask the state Supreme Court to review the case, a request that should come by early- to mid-October.

Even if some of Love’s actions happened outside the view of the camera, however, a copy of the police video obtained by The Tribune seemed to contradict the officers’ version of how the events played out.

For example, officers Jonathon Gray, Larry Sanchez and Erik Schlegelmilch testified that Schlegelmilch used his Taser on Love because Love refused to lie on the ground, and Sanchez deployed the dog after the stun gun proved ineffective.

But in the video, Love comes into view and appears to begin lowering himself to the ground at almost the same moment the police dog arrives from outside the camera frame — calling into question whether Love’s alleged resistance occurred away from view of the camera.

If the Supreme Court were to affirm the appellate court’s decision or refuse to review it, the case could have a serious effect on any future testimony or reports by the officers involved in Love’s arrest.

“The vast majority of police officers are trying to do good, so there’s no reason to disbelieve an officer when an officer puts it in a report,” Cotter said. “If we’re finding that an officer is not being truthful, then we have to re-examine how we accept what an officer writes.”

To Love’s attorney, Jeff Kimmell, and other critics, inaccurate testimony by the officers would equate to perjury. But Cotter said that even if the officers’ statements were found to have contradicted the evidence, proving any witness deliberately lied is a difficult task.

At the very least, the case would be among instances where video has undermined the credibility that police officers enjoy when testifying, said Richard Pierce, a University of Notre Dame history professor who studies civil rights. He said such cases also raise concerns about whether police supervisors and prosecutors check officers for accuracy or accept reports without question.

“What’s most disconcerting in these incidents is how police officers have signed onto reports supporting the arresting officers, and then later on we found out those reports were just rubber-stamped,” Pierce said. “They weren’t critical appraisals of the situation.”

In Royce Love’s case, it’s unclear whether city officials are reviewing the officers’ conduct in light of the appellate court’s decision. Police Chief Scott Ruszkowski referred questions to a spokesman for Mayor Pete Buttigieg.

The spokesman, Kevin Lawler, said city officials could not comment because Love’s civil case was pending in federal court and the criminal case may reach the state Supreme Court.

At least two of the officers, Jonathon Gray and Erik Schlegelmilch, have not received major discipline for their conduct in Love’s arrest, according to personnel records released by the city in response to a public records request. The city is obligated to release disciplinary records only for actions that result in suspension, demotion or firing.

Gray and Schlegelmilch were involved in another case that raised questions about excessive force. That case started early on Christmas Day 2010, when police responded to a report of a minor car accident on Birdsell Street and found 29-year-old Mitchell Burton asleep at the wheel, with the front of his Cadillac station wagon pushing against a pickup truck.

Gray and Schlegelmilch, along with officer Andrew Witt, tried to wake Burton up by shining their flashlights into the car and pounding on the windows.

When Burton awoke, Gray drew his pistol and ordered Burton twice to open the door and get out of the car, before almost immediately shouting, “You move and I will shoot you in your (expletive) head.”

After an officer broke Burton’s window, the police pulled him from the car, shooting him with a Taser at one point because they claimed he kicked Witt in the groin. They slammed him on the ground, breaking several bones in his face, and handcuffed him after a struggle that lasted about three minutes. The officers said Burton claimed to have a pistol several times during the struggle, but no weapon was found.

A jury acquitted Burton of three counts of battery but found him guilty of resisting arrest.

In 2012, the Court of Appeals overturned his conviction, finding that St. Joseph Superior Court Judge John Marnocha erred by refusing to instruct the jury on the possibility that Burton lawfully defended himself against unreasonable force by the officers. The court pointed to Gray’s threat to kill Burton as evidence that Burton may have feared impending excessive force that could result in injury or death.

Burton, representing himself, tried to sue the officers, Marnocha, the St. Joseph County jail and other defendants in federal court, but a judge dismissed the case because of procedural problems with Burton’s claims.

A South Bend native who was visiting from Louisiana at the time of the December 2010 incident, Burton was sentenced to a year of probation before the appellate court overturned his conviction.

Differing approaches

Appellate decisions that refute police officers’ statements based on video evidence are rare but will become more common as footage from police body cameras and other types of video become more widely available, said Joel Schumm, an Indiana University law professor who specializes in appeals.

“The way appellate judges consider video evidence is a developing issue,” Schumm said. “As the Love opinion shows, not all judges agree with what approach to take.”

Court of Appeals Judge Rudolph R. Pyle III dissented with the majority in the Love case, arguing that the court went beyond its authority by re-weighing evidence that was already considered by a trial jury.

By rule, Indiana’s appellate courts are expected to consider only whether the evidence most favorable to the prosecution was enough for a reasonable jury to return a guilty verdict. But the Supreme Court also has held that if the review of facts shows a total lack of evidence strong enough to prove guilt beyond a reasonable doubt, the court has a duty to reverse a conviction.

Despite Love’s remaining conviction on one count of resisting law enforcement for fleeing in his vehicle, he did not serve time in prison. Former St. Joseph Superior Court Judge Jerome Frese initially sentenced him to a one-year suspended sentence, with a year of probation, for each conviction. He also was ordered to submit to reporting with the county’s DuComb Center for six months.

Now, Love says, he tries to lead a quiet life, staying home to care for his three children while his wife works as a nurse during the day. He tries to pick up work as a security guard at clubs, cutting grass or through staffing agencies.

It’s unclear whether Love’s pending lawsuit against the officers in his case will go to trial or end with a settlement out of court. His lawyer, Kimmell, said he had not received offers from the city as of last week.

csheckler@sbtinfo.com

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@jcsheckler