People v. Brewer, 2018 IL App (1st) 160155 (September). Episode 550 (Duration 19:17)

Defendant takes an officer's gun and shoots and kills him as he is ending his shift, was the officer still on duty acting as an officer?

Gist

Following a bench trial, defendant was found guilty of the first degree murder of Chicago police officer Thor Soderberg; the attempted first degree murder of 4 other officers; disarming of a peace officer; and armed robbery while personally discharging a firearm.

The trial court subsequently sentenced defendant a term of natural life for the first degree murder and a total term of 115 years for the remaining convictions.

Officer Ending His Shift

The deceased officer and his partner were assigned to Operation Project Youth, to help children get to and from school safely.

Their assignment was based out of the seventh district police station, located at South Racine Avenue and West 61st Street in Chicago. The victim was being dropped off in the parking lot at the station. He was preparing to leave and was seen putting his gun and equipment in his Suburu.

An independent witness then saw defendant walk by and singing what sounded like a rap song, saying “shoot a mother***, kill a mother***.” And words to the effect of  “f*** the police, shoot the police.”

What Happened?

Civilian and police witnesses said they heard heard gunfire right outside the police building. Defendant is seen holding something in his hand and walking toward a building across the street from the police station. He is seen fire a gun approximately six to eight times.

Defendant then walks back toward the police station with a blue bag that defendant had not possessed previously. While defendant was in the street, a female police officer came out of the station. Defendant walked toward her and fired two to three times. Defendant then trie to chase the officer as she was taking cover near a squad car.

Two additional officers came outside and ordered defendant to drop the gun, which defendant did not do. An officer then shot him.

A landscaper doing work at the station saw a man without a shirt fighting with an officer. Both men were punching each other near a car with an open trunk. He then heard the shots and saw defendant had a gun. Defendant was seen by another man and he shot at him as well. He hears the shots then sees defendant chasing other officers around a car.

He took his blue bag.

2 officers came out the station and ordered defendant to drop his weapon. He didn’t and one officer shot at him and missed. Eventually, he is shot one time and apprehended.

Victim Officer Found Shot & Killed

Police didn’t know that Soderberg had been shot and killed until they discovered his body in the parking lot after defendant was arrested and in the ambulance.

The victim officer’s car trunk was open and his gun was found in the grass.

Officer Soderberg sustained three gunshot wounds as well as bruises and abrasions to his arms, elbows, and right knee. The first gunshot wound was to the bridge of his nose, and the course of the wound was downward. The wound also indicated close-range firing of two feet or less. The second gunshot wound entered the top right of his head, coursing right to left and downward. The wound also indicated close-range firing. The third gunshot wound entered his right upper back, with a slightly upward movement.

The first two gunshots were consistent with a person standing over the victim’s head and firing at close range and either could have caused sudden death.

The third wound was consistent with being shot while in a running motion and slightly down, and it would have been possible to move after receiving the gunshot to the back. 

Earlier That Day

Defendant was arrested for drug possession and processed at that station.

Neighbors heard defendant on multiple occasions say, “f*** the police. I’m going to kill those mother***.”

Guilty

Following the trial, the trial court found defendant guilty of the first degree murder of Officer Soderberg; attempted first degree murder of Officer Casey, Officer Thor, Sergeant Kaczynski, and Richard Mints (a civilian victim and witness); armed robbery of Mints; disarming a peace officer; and aggravated discharge of a firearm. The court subsequently sentenced defendant to natural life for first degree murder, 100-year terms for each attempted murder of the police officers, 50-year terms for the attempted murder and armed robbery of Mints, and 15 years for disarming a peace officer.

The sentences for attempted murder and armed robbery were to run concurrently to each other, while the 15 years for disarming a peace officer was to run consecutively. All counts were to run consecutive to defendant’s sentence of natural life. The total sentence was natural life plus 115 years.

Issue

The sole issue raised on appeal was regarding whether Officer Soderberg was performing his official duties at the time of his murder.

Defendant argues that the State failed to prove beyond a reasonable doubt that Officer Soderberg was killed “during the course of performing his official duties,” and his sentence for natural life must be vacated and remanded for resentencing.

The Indictment 

The indictment further asserted that

“[t]he State shall seek an extended term sentence in that the murdered individual was a peace officer killed in the course of performing his official duties and the defendant knew or should have known that the murdered individual was a peace officer.”

Officer's Status Must Be Proven

Since the State was required to prove the aggravating factor, i.e., Officer Soderberg was killed in the course of performing his official duties, beyond a reasonable doubt, the standard of review is the same as a challenge to the sufficiency of the evidence.

Here, the statutory sources for the aggravating factor in the indictment were section 9­ 1(b)(1) of the Criminal Code of 1961 and section 5-8-1(a)(1)(c)(iii) of the Unified Code of Corrections. See 720 ILCS 5/9-1(b)(1); 730 ILCS 5/5-8-1(a)(1), (c)(iii) (West 2014). Both statutes include the same language regarding the murder of a peace officer “killed in the course of performing his official duties.” 720 ILCS 5/9-1(b)(1); 730 ILCS 5/5­ 8-1(a)(1), (c)(iii).

The Case Law

The Illinois Supreme Court has held that a peace officer “has the duty to maintain public order wherever he may be; his duties are not confined to a specific time and place.” Arrington v. City of Chicago, 45 Ill. 2d 316, 318 (1970); see also In re Joel L., 345 Ill. App. 3d 830, 834 (2004); People v. Weaver, 100 Ill. App. 3d 512, 514 (1981); People v. Barrett, 54 Ill. App. 3d 994, 996 (1977). As the Barrett court reasoned, “[i]t is the nature of the acts performed by the officer which determine whether the officer was in the execution of his official duties.” 

In Barrett, a police officer was off duty and working as a paid security guard in a retail store while in his police uniform. A store employee notified the officer that defendant and his brother were attempting to steal items from the store. The officer then approached the men and informed them that they were being placed under arrest. During a struggle, the officer was struck by defendant two or three times. Defendant was subsequently convicted of aggravated battery and challenged whether the State proved an element of aggravated battery, whether the officer was engaged in the execution of his official duties. 

The reviewing court concluded the element had been proven that the officer was engaged in the execution of his official duties when placing the men under arrest for shoplifting. The court reasoned that the “decisive factor” at the time was “the nature of the acts he performed and not his employment status at the time.”

The Barrett court found support in a federal case from the Sixth Circuit, Stengel v. Belcher, 522 F.2d 438 (6th Cir. 1975), “ ‘[t]he fact that a police officer is on or off duty, or in or out of uniform is not controlling. It is the nature of the act performed, not the clothing of the actor or even the status of being on duty, or off duty, which determines whether the officer has acted under color of law.’” Barrett, 54 Ill. App. 3d at 996.

Police Are Always On Duty

The reviewing court held that “a police officer has the duty to maintain public order wherever he may be, as long as he is within the State.” Id. at 514. The court concluded that when making an arrest, an officer is “always engaged in execution of his official duties.” See Weaver, 100 Ill. App. 3d at 513-14. “The nature of a policeman’s job is that he be fit and armed at all times, whether on or off duty, and subject to respond to any call to enforce the laws and preserve the peace.

It is true that his being considered ‘on duty’ at all hours of the day or night does not result in all of his acts being deemed to have been taken in the performance of his duties as a police officer. Karas v. Snell, 11 Ill. 2d 233 [(1957)]. However, since he is always obligated to attempt to prevent the commission of crime in his presence, any action taken by him toward that end, even in his official off-duty hours, falls within the performance of his duties as a police officer.” Banks v. City of Chicago, 11 Ill. App. 3d 543 (1973).

It's A Matter Of Policy

To hold otherwise would require the incongruous finding that a police officer is invested with the authority and duty to defend all lives but his own.

Analysis

We find the court’s reasoning to be applicable to the facts of the present case.

Here, defendant was observed walking toward the police station while ranting profanely about the police. Brown testified about defendant expressing violent thoughts toward the police with vulgar language on multiple occasions. Defendant was seen attempting to enter the police station, but was unable to enter.

Officer Soderberg had been dropped off near his car in the south parking lot. He was in uniform and beginning to change his clothes. He had placed his duty belt in his car. At some point, defendant confronted Officer Soderberg. The men engaged in a fist fight with both men throwing punches. As Sanchez was trying to inform someone about the fight and to help the officer, he heard gunshots.

Defendant was observed leaving the parking lot with Officer Soderberg’s firearm and proceeded to fire at Mints and multiple officers.

While we do not know the exact circumstances in which defendant first approached Officer Soderberg, the evidence is uncontested that defendant obtained the officer’s firearm and shot the officer three times. Defendant contends that Officer Soderberg’s actions were not in performance of his official duties, but as a victim of a crime.

We reject that position.

Holding

As in Banks, defendant’s actions toward the officer were the commission of a crime, which Officer Soderberg had a duty to prevent. We agree with the Banks court’s conclusion that a police officer has a duty to prevent commission of crime and to defend all lives, including his own. Thus, the trial court, as the factfinder, could find that any action taken by Officer Soderberg to prevent the commission of any crime, including a crime committed against himself, was in performance of his official duties.

In reviewing the evidence in the light most favorable to the State, we accept the trial court’s conclusion that the State sufficiently proved beyond a reasonable doubt that Officer Soderberg was killed while in the course of performing his official duties and affirm defendant’s sentence of natural life.

Affirmed.