On September 12, 2008, Erin Evans and her boyfriend, Octavius Bonds, went on a date.

A sweet start to the statement of facts in United States v. Mersed Dautovic, a Des Moines police officer.   The night ended with Bonds hospitalized, head split open, bones protruding through the skin, after being pepper-sprayed and beaten by Dautovic and his partner, John Mailander.

The 8th Circuit’s description of what happened after Evans didn’t move out of the way quickly enough is too vivid to  be captured in summary.  The sweet start to the evening offered little hint that the nightmare to follow wouldn’t end until Evans and Bonds were acquitted at trial.

Curiously, the scenario flipped, as it almost never does, so that a federal prosecution of the police, for the use of excessive force under color of law, and their perjury in the state court trial that obstructed justice, followed.  There is no explanation for how a case that was deemed strong enough to take to trial in state court turned into a prosecution of the police in federal court.  Not that I’m complaining, but the incongruity is astounding.

Mersed Dautovic was convicted after trial.  The sentencing guidelines calculations were unforgiving.

The PSR determined that Dautovic’s total offense level was 34, his criminal history category was I, and his advisory Guidelines range was 151 to 188 months’ imprisonment. The excessive force count carried a ten-year statutory maximum term of imprisonment. 18 U.S.C. § 242. The obstruction of justice count carried a twenty-year statutory maximum. Id. § 1519.

Within these calculations is a six-level enhancement because Police Officer Dautovic beat Bonds under color of law.  There was also a two-level enhancement because Bonds was restrained at the time.

The guidelines have no enhancement for beating Bonds when he was unconscious, lying face down in the road, after his head had already been split wide open, arm broken and hand shattered to pieces.  Dautovic and Mailander were still a bit too pumped to stop beating the body, and just kept whaling.  No big deal if you toss  “fighting stance” into a report later, which absolves police of all harm unless there are too many witnesses.

Dautovic testified that his childhood in Bosnia gave rise to what a psychiatrist described as an “excessive fear response.”

Dautovic had explained at trial that he was born in Srebrenica, Bosnia, and that his family moved to Sarajevo when he was twelve, after the army occupied Srebrenica. The Bosnian War lasted from 1992 to 1995, and Dautovic’s father was killed in the genocide that accompanied the war. Dautovic lived in a refugee camp before relocating to the United States at age fifteen. Dautovic learned English, graduated from high school and college, and became a United States citizen. Dautovic graduated from the Des Moines Police Academy in December 2007 and thereafter completed eight weeks of field training.

The district judge found that Dautovic’s childhood experiences had nothing to do with his beating of Bonds, and that he had no remorse for his conduct. Yet, the judge also found that the guideline enhancement for acting under color of law was far too severe.  He sentence Dautovic to 20 months in prison, 115 months below the guidelines calculations.

The Circuit reversed.

We conclude that the district court imposed a substantively unreasonable sentence in this case. Dautovic’s offense conduct was egregious. A police officer beat an innocent victim with a dangerous weapon, causing serious bodily injury and permanent physical damage. He arrested Bonds and Evans and then wrote a false police report that caused them to be charged with crimes. At Bonds and Evans’s trial, where they were found innocent, Dautovic committed perjury. Dautovic maintained throughout his trial that his actions in the early morning hours of September 13 were reasonable and that his police report was sloppy, not intentionally falsified. A jury, however, found him guilty beyond a reasonable doubt of using excessive force and obstructing justice, and the district court’s findings at sentencing were consistent with the jury’s verdict. The district court found that Dautovic showed no remorse and that his experience in Bosnia did not relate to his beating of Bonds.

Rarely does an appellate court hold a sentence to be substantively unreasonable, although it happened twice last week.  This case, however, presents a glaringly lenient sentence, at 20 months for a brutal beating, not to mention the false charges and perjurious testimony which might very well have caused Bonds’ conviction rather than Dautovic’s.

But if not 20 months, would 60 have done the trick?  If so, what trick would that have been?  To send a message to police that they can’t beat someone, then lie about it and put their victim in jail instead?  How long a sentence would be needed to send that message?  Would 121 months have sent a louder, clearer message?

Or was the crime here that Dautovic, with his “excessive fear response” from his childhood experiences in Bosnia, a particularly bad choice of individual to give a gun and shield.  Was he bound to explode, to lose all control, at some point?  What of the psychological screening of those in whom we trust to exert physical dominion over others?

On September 12, 2008, Erin Evans and her boyfriend, Octavius Bonds, went
on a date.

That date changed their life, as well as the lives of Dautovic and Mailander.  The former did nothing to deserve it. The latter deserved to suffer the consequences of their conduct.

When the totality of the circumstances is considered, a variance from the Guidelines range of 135 to 168 months’ imprisonment to a 20-month sentence is unreasonably lenient. The district court erred in weighing the § 3553(a) factors and abused its discretion in varying downward to the extent that it did.

The chances of anyone other than a cop receiving such leniency are slim. But the chances of someone like Dautovic getting a job with the Des Moines police remain unchanged.  And what are the chances of Bonds and Evans beating their charges at trial and seeing their accuser convicted, and then his 20 month sentence reversed as unreasonably lenient?  Yet all of this happened.

H/T Judge Kopf