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Justices seek to define ‘indisputably’ in K-9 case

January 19, 2017

After leading South Bend police officers on a five-minute vehicular chase through city streets, Royce Love eventually stopped his van and was ordered to exit it. Love’s account of what happened next varies significantly from the officers’ account, and that disparity was the main issue the justices of the Indiana Supreme Court sought to resolve when they heard arguments in the case Thursday.

According to Jeffrey Kimmell, counsel for Love, evidence from a police officer’s dash-cam video shows Love exiting his vehicle, raising his hands in the hair, getting down on his knees and eventually lying on his stomach.  But at the August 2015 trial, police testified that Love was not compliant and instead tried to walk away from them after exiting the vehicle. That’s when they turned to two incidents of what Kimmell called “gratuitous force” – the deployment of a police dog and the use of Tasers.

Although the trial court found in favor of the officers, a divided Indiana Court of Appeals panel overturned his convictions of mistreatment of a law enforcement animal and resisting law enforcement, citing video evidence that the majority found to be in contrast with the officers’ testimony. Kimmell tried to reinforce that disparity in oral arguments Thursday, telling the justices that the dash-cam video was “indisputable” evidence proving his client’s compliance with police orders.

The question of the video’s indisputability became a central theme of the arguments, with Justice Robert Rucker telling Kimmell that no matter how many times he watched the video, he was met with grainy, dark footage that was anything but clear. Further, Chief Justice Loretta Rush pointed out that many times, the angle of the video blocked the view of Love, further calling its indisputability into question.

Kimmell conceded that the dash-cam evidence was not high quality, but maintained that the few seconds that he claimed showed Love exiting the van and getting on the ground were clear enough to prove that he was compliant.

But Ellen Meilaender, a deputy attorney general who argued on behalf of the state, told the justices that accepting Kimmell’s argument would undermine the validity of the jurors in Love’s original trial, who were tasked with reviewing and weighing the video evidence against police testimony.

Based on the court’s decision in Robinson v. State, 5 N.E.3d 362 (Ind. 2014), appellate courts may not reweigh the credibility of testimonial evidence based on its interpretation of a video. Thus, the Court of Appeals’ reversal of Love’s decision was an error because the panel chose to question the jury and reweigh, rather than merely review, the dash-cam video, Meilaender said.

Throughout his argument, Kimmell repeatedly cited to the Texas appellate case of Carmouche v. State, 10 S.W.3d 323 (Tex. Crim. App. 2000), which found that courts “give almost total deference to the trial court’s factual determinations unless the video recording indisputably contradicts the trial court’s findings.”

Justice Steve David asked Meilaender what the legal harm would be in adopting the Carmouche test and applying it to Love’s case. The deputy attorney general said that such an adoption would be unnecessary because Indiana already has an “incredible dubiosity” rule in place as a protection against contradictory evidence and testimony.  

Meilaender conceded that there could come a time when adopting the Carmouche test in Indiana would be appropriate. But because the dash-cam video in Love’s case was of such poor quality and often hid Love from view, it would not be appropriate to adopt the Texas test for his case because the video was not “indisputable.”

Kimmell, however, consistently maintained that not only was Love compliant with police orders, he was also within his rights to become noncompliant after the use of the Tasers and deployment of the police dog because citizens have a right to defend themselves against excessive force.

The full oral arguments for Royce Love v. State of Indiana, 71S03-1612-CR-0064, can be viewed here.

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