     09-2945-pr
     Stephen v. Hanley

1                             UNITED STATES COURT OF APPEALS
2                                 FOR THE SECOND CIRCUIT

3                                     SUMMARY ORDER

 4   RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
 5   SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
 6   BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE
 7   32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A
 8   PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH
 9   THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A
10   COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

11        At a stated term of the United States Court of Appeals for
12   the Second Circuit, held at the Daniel Patrick Moynihan United
13   States Courthouse, 500 Pearl Street, in the City of New York, on
14   the 12th day of May, two thousand ten.
15
16   PRESENT:    GERARD E. LYNCH,
17               DENNY CHIN,
18                     Circuit Judges.*
19
20   - - - - - - - - - - - - - - - - - - - - -
21
22   SEAN STEPHEN and DARYL STEPHEN,
23
24                              Plaintiffs-Appellants,
25
26                       v.
27
28   JOHN HANLEY, Police Officer #13199; EDGAR
29   BOURDON, Police Officer #30988; RLENDEAU,                   09-2945-pr
30   Supervisor; ILIADIS, Police Officer; BRILL,
31   Police Officer; COLEMAN, Police Officer;
32   WHITE, SST., Supervisor; TOOL TEAM; NYC
33   Police Sergeant HERNANDEZ; Police Officer
34   DEREK DUNSTON; MILLER; CITY OF NEW YORK;
35   and WARMOTH, Officer,
36
37                              Defendants-Appellees.
38
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           *
               At the time of oral argument, Judge Chin was a District
     Judge sitting by designation. The Honorable Rosemary S. Pooler
     was originally a member of this panel, but did not participate in
     the consideration of this appeal. The two remaining members of
     the panel are in agreement and have determined the matter. See
     28 U.S.C. § 46(d); 2d Cir. I.O.P. E; United States v. Desimone,
     140 F.3d 457 (2d Cir. 1998).
 1               FOR APPELLANTS:             DAVID MCGILL (Joseph De
 2                                           Simone, on the brief), Mayer
 3                                           Brown LLP, New York, New York.
 4
 5               FOR APPELLEES:              SUSAN B. EISNER (Stephen J.
 6                                           McGrath, Afsaan Saleem, and
 7                                           Caroline Chen, on the brief),
 8                                           for Michael A. Cardozo,
 9                                           Corporation Counsel of the
10                                           City of New York, New York,
11                                           New York.
12
13               Appeal from a judgment of the United States District

14   Court for the Eastern District of New York (Kiyo A. Matsumoto,

15   Judge).

16               UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

17   AND DECREED that the judgment of the district court is AFFIRMED.

18               Plaintiffs Sean Stephen and Daryl Stephen appeal from a

19   final judgment entered after a jury verdict on their 42 U.S.C. §

20   1983 claims alleging excessive force in violation of the Fourth

21   Amendment.    We assume familiarity with the facts and procedural

22   history, which we reference only as necessary to explain our

23   decision.

24               Early on July 10, 2002, Sean Stephen and his fourteen-

25   year-old son were sleeping in a Brooklyn apartment.      Police

26   officers forcibly entered the premises pursuant to a search

27   warrant.    Plaintiffs alleged that the officers used excessive

28   force against them.    The jury found in favor of defendants,

29   except that it awarded nominal damages to Daryl Stephen against

30   defendant Brill.    Judgment was entered accordingly.


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1              On appeal, plaintiffs contend that the district court

2    erred by (1) refusing to instruct the jury on a law enforcement

3    officer's affirmative "duty to intervene" to prevent

4    constitutional violations committed by other officers in their

5    presence; (2) declining to excuse two jurors for cause; and (3)

6    overruling three out of plaintiffs' four Batson objections to

7    defendants' peremptory strikes against African-American members

8    of the panel.

9              With respect to the district court's refusal to give a

10   "duty to intervene" jury instruction, we affirm.   We see the

11   issue not as whether a police officer has a duty to intervene,

12   but whether the district court abused its discretion in declining

13   to permit plaintiffs to introduce a new theory of liability at

14   trial.   Plaintiffs' fourth amended complaint did not give

15   defendants notice that plaintiffs intended to pursue a "duty to

16   intervene" theory of liability, and thus plaintiffs' proposed

17   jury instruction would have introduced a new claim to the case.

18   In essence, plaintiffs were seeking leave to amend their

19   complaint as trial was about to commence.   We find no abuse of

20   discretion in the trial judge's decision to deny plaintiffs leave

21   to introduce a new theory of liability at that late juncture in

22   the proceedings.   See ATSI Commc'ns, Inc. v. Shaar Fund, Ltd.,

23   493 F.3d 87, 108 (2d Cir. 2007) (denial of leave to amend

24   reviewed for abuse of discretion).


                                    - 3 -
1               Although plaintiffs now argue that it was "impossible"

2    for them to identify their specific attackers, and that a "duty

3    to intervene" charge was therefore essential to their ability to

4    recover from defendants, plaintiffs' fourth amended complaint --

5    which was drafted by counsel (plaintiffs' prior attorney) -- did

6    not proceed on this theory.   Instead, the fourth amended

7    complaint made specific factual allegations regarding each

8    defendant's individual actions -- for instance, it alleged that

9    "defendant Iliadis struck plaintiff Sean Stephen with a baton";

10   "defendant Hayden struck plaintiff Sean Stephen in his jaw with a

11   closed fist"; and "defendant Miller tightly handcuffed

12   [plaintiff] Sean Stephen . . . and deliberately pushed him into a

13   wall."   Plaintiffs alleged no facts in the pleading to suggest

14   that it was difficult to ascertain each defendant's role in the

15   assaults or that they intended to proceed on a "duty to

16   intervene" theory of liability.

17              Furthermore, while it is true that plaintiffs raised

18   this issue some eight weeks before trial by including a "duty to

19   intervene" charge in their proposed jury instructions, defendants

20   objected to the proposed charge, and neither side brought the

21   issue to the district court’s attention until the final pre-trial

22   conference, just a few days before the beginning of trial.   The

23   trial judge’s decision not to permit plaintiffs to introduce a

24   new theory of liability at that point, on the grounds that


                                    - 4 -
1    defendants would be prejudiced by such a late amendment, was well

2    within her discretion.

3              As for the plaintiffs' argument that certain jurors

4    should have been excused for cause, we note that "[t]he process

5    of empaneling a jury is firmly entrusted to the sound discretion

6    of the trial judge and will not be disturbed absent an abuse of

7    this discretion."    United States v. Rubin, 37 F.3d 49, 54 (2d

8    Cir. 1994).    The trial judge questioned the two challenged jurors

9    about their potential biases in detail.    Based on their

10   responses, she determined that the jurors could be fair and

11   impartial.    Her determinations were not clearly erroneous.   In

12   any event, one of the jurors in question was eventually removed

13   from the panel by a peremptory challenge.    See Ross v. Oklahoma,

14   487 U.S. 81, 88 (1988) ("So long as the jury that sits is

15   impartial, the fact that the defendant had to use a peremptory

16   challenge to achieve that result does not mean the Sixth

17   Amendment was violated.").    As for the other juror, when the

18   district court ruled that it would seat her because "she is

19   fairly committed to try to be fair and impartial and not to make

20   any decision before the evidence is in," plaintiffs' counsel

21   said, "I agree."    See United States v. Ragland, 375 F.2d 471, 475

22   (2d Cir. 1967) ("Failure to object to the composition of the jury

23   has long been held to result in a waiver of the right of the

24   accused to be heard by an impartial jury.").


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1                Finally, with regard to the Batson challenges, a trial

2    court’s determination, under Batson v. Kentucky, 476 U.S. 79

3    (1986), as to the existence of discriminatory intent in the

4    exercise of peremptory challenges -- or the lack thereof -- is a

5    factual determination that should be set aside only if "clearly

6    erroneous."    Hernandez v. New York, 500 U.S. 352, 369 (1991).

7    The trial judge questioned defense counsel about their use of

8    peremptory strikes against African-American jurors.    She

9    determined that counsel were not motivated by impermissible

10   racial bias.    The trial judge was in the best position to assess

11   demeanor and credibility, see United States v. Breen, 243 F.3d

12   591, 598 (2d Cir. 2001), and we find no reason to overturn her

13   determinations.

14               We have considered plaintiffs' remaining arguments on

15   appeal and conclude that they are without merit.    For the

16   foregoing reasons, the judgment of the district court is

17   AFFIRMED.

18

19                              FOR THE COURT:
20                              CATHERINE O’HAGAN WOLFE, Clerk of Court
21




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