        12-680-cv
        Rasanen v. Brown
 1
 2
 3                          UNITED STATES COURT OF APPEALS
 4                              FOR THE SECOND CIRCUIT
 5
 6                                       August Term, 2012
 7
 8                    (Argued: February 28, 2013           Decided: July 19, 2013)
 9
10                                      Docket No. 12-680-cv
11
12
13                                      Leroy J. RASANEN,
14
15                   As administrator of the estate of John C. Rasanen, deceased,
16
17                                        Plaintiff-Appellant
18
19                                               – v. –
20
21     John Doe, Rhonda Roe, said names being fictitious and intended to represent all police
22    officers taking part in the occurrence that resulted in decedent's death, James W. Dewar,
23   John W. O'Brien, Keith M. Skala, Tyler R. Finn, Tammy M. Mickoliger, Rodney C. Polite,
24   Alan T. Brock, Michael Etherton, David H. Verne, Scott G. Dibble, Robert A. Buell, Paul
25         C. Antonovich, Timothy C. Pidgeon, Bartosz J. Chilicki, Michael A. Pellegrino,
26
27                                           Defendants,
28
29                                        Daniel BROWN
30
31                                        Defendant-Appellee.
32
33
34   Before: CALABRESI, Senior Circuit Judge, POOLER and RAGGI, Circuit Judges.
35
36          Appeal from a Decision and Order of the United States District Court for the
37   Eastern District of New York (Spatt, J.) denying plaintiff’s motion for a new trial pursuant
38   to Federal Rule of Civil Procedure 59(a). In the underlying action, plaintiff alleged,
39   pursuant to 42 U.S.C. § 1983, that defendant, a New York State Police trooper, used
40   excessive force in violation of the Fourth Amendment. At the end of a jury trial, the jury

                                             1
 1   found for defendant. Plaintiff moved for a new trial based, among other reasons, on
 2   alleged flaws in the jury instructions; the district court denied the motion. VACATED and
 3   REMANDED.
 4
 5          Judge RAGGI dissents in a separate opinion.
 6
 7
 8                                       HARRY H. KUTNER JR., Esq., Law Offices of Harry
 9                                       H. Kutner Jr., Mineola, N.Y., for Plaintiff-Appellant.
10
11                                       WON S. SHIN, Assistant Solicitor General (Barbara D.
12                                       Underwood, Solicitor General, Cecelia C. Chang,
13                                       Deputy Solicitor General, of counsel) for Eric T.
14                                       Schneiderman, Attorney General of the State of New
15                                       York, New York, N.Y., for Defendant-Appellee.
16
17

18   CALABRESI, Circuit Judge:

19          Plaintiff-Appellant Leroy J. Rasanen is the father and estate administrator of John

20   C. Rasanen, who was shot and killed by Defendant-Appellee Daniel Brown, a New York

21   State Police trooper, during a (warranted) search of John Rasanen’s home. Plaintiff began

22   this action against Brown and others in May 2004. Plaintiff’s September 2004 amended

23   complaint alleged one cause of action under 42 U.S.C. § 1983 and another for negligence.

24   Plaintiff’s § 1983 claim asserted that the fatal shooting of John Rasanen constituted

25   excessive force; his negligence claim alleged, in the alternative, that the shooting, as well as

26   the planning and execution of the search during which the shooting occurred, was

27   negligent.

28          A jury trial in the matter started on April 5, 2011. The district court had granted

29   summary judgment in March 2009 on the excessive force claim to all defendants except


                                                    2
 1   Brown and Michael Etherton, who was with Brown at the time of the shooting. At trial,

 2   plaintiff voluntarily dismissed the excessive force claim against Etherton, and the court

 3   dismissed plaintiff’s negligence claims as a matter of law. There was no evidence, the court

 4   reasoned, that any alleged negligence in planning the search was causally connected with

 5   the shooting of John Rasanen, nor was there any evidence that the shooting was not

 6   intentional. Thus, by the time the jury began its deliberations on April 27, 2011, the only

 7   cause of action remaining was the excessive force claim against Brown.

 8          On May 6, 2011, after more than seven days of deliberation, the jury returned a

 9   unanimous verdict in favor of Defendant Brown. Soon thereafter, plaintiff moved for a

10   new trial under Federal Rule of Civil Procedure 59, alleging, inter alia, flaws in the jury

11   instructions. The district court denied that motion in a Decision and Order dated January

12   23, 2012. This appeal followed.

13          For reasons given below, we VACATE the judgment of the district court and

14   REMAND for a new trial.

15

16                                       BACKGROUND

17          Early in the morning of May 17, 2002, a mobile response team of the New York

18   State Police searched the Suffolk County, New York residence of John Rasanen. A warrant

19   authorized the team to look for cocaine, marijuana, drug paraphernalia, illicit proceeds,

20   and other contraband. The team consisted of Trooper Daniel Brown; his assigned partner,

21   Michael Etherton; and six other state troopers. The team had previously been told that


                                                  3
 1   Rasanen had threatened police officers, and that he was armed, dangerous, and

 2   unpredictable. The warrant allowed the team to enter Rasanen’s residence between 6 a.m.

 3   and 9 p.m. A Crime Scene Attendance Log indicates that the first members of the team

 4   entered the home at 5:53 a.m.

 5          After entering the residence, the troopers fanned out, two by two, to secure the

 6   building. Trooper Brown, followed by Trooper Etherton, went downstairs. Brown, who

 7   carried a halogen flashlight in his left hand and a 9-mm. pistol in his right, kicked open the

 8   door to a small bedroom, where he found Rasanen with a friend, Angela Chinnici.

 9   Although members of the response team had been told that Rasanen was armed and

10   dangerous, that morning he was in fact unarmed, and from the waist up naked.

11          Brown was heavily-armored. He wore a military helmet, a face shield, an armored

12   vest, combat gloves and combat boots. He was larger than Rasanen by three inches and

13   more than sixty pounds. Moments after Brown entered the bedroom, he fired a single shot

14   into Rasanen’s chest. Rasanen died within minutes.

15          At trial, the two surviving eye-witnesses, Brown and Chinnici, recounted what led to

16   this shooting.

17          Brown testified that upon his first step or two into the bedroom, Rasanen charged

18   at him. As he held Rasanen back with his flashlight, Brown said, he felt his own gun being

19   turned against him. Brown was unsure whether Rasanen was using his hands or another

20   part of his body to turn the gun. When he felt the gun moving, Brown dropped the




                                                   4
 1   flashlight, gained control of the gun, and fired. This happened, Brown said, “all at once”—

 2   “in a matter of seconds.” Brown insisted that he shot Rasanen out of fear for his own life.

 3          Angela Chinnici, for her part, testified that she was asleep next to Rasanen in his

 4   bed when she was awakened by knocking on the front door upstairs. She then heard a

 5   loud bang, followed by footsteps and cries of, “Police, get down!”            Chinnici woke

 6   Rasnanen and asked what was going on. Rasanen cursed, leapt out of bed, and closed the

 7   bedroom door. He then paced from side to side in the space between the door and the

 8   foot of the bed. As Chinnici heard the police coming down the stairs yelling “police” and

 9   “get down,” she saw Rasanen drop something behind the television stand. Rasanen then

10   resumed pacing, some two to three feet from the bedroom door. The room, Chinnici said,

11   was dark and small.

12          Chinnici then saw the door open and Trooper Brown enter. Brown commanded

13   Rasanen and Chinnici to get down. Chinnici complied; Rasanen apparently did not.

14   Chinnici heard a loud pop, and saw a cloud of smoke. She did not see Rasanen lunge at

15   Brown or struggle with Brown for the trooper’s gun.

16          The jury began its deliberations on April 27, 2011. At one point, the jury asked the

17   district court to define the terms “negligence” and “deadly excessive force.” The district

18   court declined to define negligence because the negligence claim had been dismissed, and

19   the court refused to reinstate it. The district court defined “deadly excessive force” by

20   repeating its original charge on excessive force and adding the word “deadly” at various

21   places in the charge (the relevant portions of the charge are excerpted later in this opinion).


                                                   5
 1   The jury additionally informed the court that it was considering a section of the New York

 2   State Police administrative manual entitled “Use of Deadly Physical Force.” The court

 3   directed the jury to certain other provisions of the manual, which it said were also relevant

 4   to the jury’s deliberations.

 5          On May 5, 2011, the jury returned a unanimous verdict in favor of Trooper Brown

 6   on the excessive force claim. The district court denied plaintiff’s Rule 59 motion for a new

 7   trial on January 23, 2012, and plaintiff timely appealed.

 8          Before us, plaintiff-appellant argues that the district court erred (1) by failing to

 9   instruct the jury with regard to the limited justifications for use of deadly force established

10   by the Supreme Court in Tennessee v. Garner, 471 U.S. 1, 3, 11 (1985), and adopted by our

11   court in O’Bert ex rel. O’Bert v. Vargo, 331 F.3d 29, 36 (2d Cir. 2003); (2) by declining to

12   submit plaintiff’s negligence claims to the jury; and (3) by excluding from the jury’s

13   consideration the fact that Brown and others entered Rasanen’s residence a few minutes

14   sooner than the search warrant allowed (a per se constitutional violation, plaintiff

15   contends). Additionally, appellant contends that the jury’s verdict ran against the weight

16   of the evidence.

17

18                                          DISCUSSION

19                                                 I.

20          Appellant’s contentions with regard to his negligence claim, the timing of the

21   search, and the weight of the evidence are unavailing.


                                                   6
 1          With respect to the negligence claim, we find nothing in the record that

 2   contravenes the district court’s conclusion that there was no evidence either that the

 3   planning of the search contributed to Rasanen’s death, or that Brown shot Rasanen

 4   unintentionally. Appellant asserts that the district court was wrong to rely on Brown’s

 5   testimony that the shooting was intentional. But appellant failed to produce any evidence

 6   to the contrary, and we see no reason, therefore, to revisit the district court’s dismissal of

 7   the negligence claim.

 8          With respect to the timing of the search, we agree with the district court that the

 9   matter of premature entry is immaterial to the question of excessive force. Whether Brown

10   and his fellows entered Rasanen’s home sooner than the warrant allowed has no bearing

11   on whether Brown acted unreasonably when he shot Rasanen.

12          Finally, with regard to the sufficiency of the evidence, a district court’s denial of a

13   motion for new trial on weight-of-the-evidence grounds is not reviewable on appeal. Espinal

14   v. Goord, 558 F.3d 119, 131 (2d Cir. 2009); Stonewall Ins. Co. v. Asbestos Claims Mgmt. Corp.,

15   73 F.3d 1178, 1199 (2d Cir. 1995), modified on other grounds, 85 F.3d 49 (2d Cir. 1996).

16          Appellant’s only potentially viable claim on appeal, then, is his claim that the jury

17   instructions were erroneous. To this claim we now turn.




                                                   7
 1                                                     II.

 2   A. The Jury Instructions

 3          The district court instructed the jury with regard to excessive deadly force as

 4   follows:1

 5

 6                  With respect to this claim of deadly excessive force, you are instructed

 7          that every person has the right not to be subjected to unreasonable or

 8          excessive deadly force in the course of a search by a law enforcement officer,

 9          even though such a search is otherwise made in accordance with the law.

10                  In other words, even if there was a lawful search, the officer has no

11          right to use . . . excessive deadly force. Whether or not the force used in

12          conducting the search was unnecessary, unreasonable and violent is an issue

13          to be determined by you in light of all the surrounding circumstances. On

14          the basis of that degree of force, a reasonable and prudent police officer

15          would have applied in effecting the search under the circumstances disclosed

16          in this case.

17                  Here, where the parties’ factual contentions are disputed, you must

18          consider the question of what events actually occurred. You must determine

19          whether the plaintiff proved that on May 17, 2002, the decedent, an


     1
      Amendments the court made in response to the jury’s questions about “the meaning of excessive deadly
     force” are italicized.


                                                        8
 1   unarmed man, was shot and killed unnecessarily by defendant, Daniel

 2   Brown, or whether the shooting occurred during the course of his attacking

 3   the police officer and trying to turn his gun against him, as the defendant

 4   contends.

 5           You must determine what circumstances actually occurred that early

 6   morning in the basement bedroom where the incident occurred.               The

 7   question before you is whether the actions of the defendant [Trooper] Daniel

 8   Brown, on May 17, 2002, was [sic] objectively reasonable.

 9           The plaintiff said the actions were objectively unreasonable and has the

10   burden of proof as to that.

11           What does that mean? It means what a reasonably prudent police officer

12   would have done under similar circumstances in light of the facts and the

13   situation confronting him on that occasion, without regard to his underlying

14   intent or motivation. That means that evil intentions will not be excessive

15   force, deadly excessive force, if the force was in fact reasonable.

16           On the other hand, an officer’s good intentions will not make deadly

17   excessive force constitutional.

18           The reasonableness of a particular use of force must be—and deadly

19   force—judged from the perspective of a reasonable police officer on the scene

20   rather than the 20/20 vision of hindsight.




                                               9
 1                 In answering these questions, namely, whether the deadly force used

 2          by defendant, Daniel Brown, was reasonable, you should consider the facts

 3          and circumstances as you find them to be, including how this confrontation

 4          actually occurred and whether the decedent was resisting and was

 5          threatening to reach the gun of the defendant, Daniel Brown.

 6                 In the course of his duty, a police officer, in making a search, as in

 7          this case, may use only reasonable force, not excessive force.

 8                 The concept of reasonableness in this regard makes allowance for the

 9          fact that police officers are often forced to make split-second judgments in

10          circumstances that are sometimes tense, uncertain, dangerous and rapidly

11          evolving about the amount of force that is necessary in a particular situation.

12                 That’s the best I can do as far as explaining what deadly force [means]. . . .

13

14          Appellant argues that the district court erred by failing to charge the jury in

15   accordance with the requirements established by the Supreme Court in Garner, 471 U.S. at

16   3, 11, and adopted by our court in O’Bert, 331 F.3d at 36 (“It is not objectively reasonable

17   for an officer to use deadly force . . . unless the officer has probable cause to believe that

18   the suspect poses a significant threat of death or serious physical injury to the officer or

19   others.”).

20          Appellee contends that there was no error in the instructions because, under the

21   Supreme Court’s decisions in Graham v. Connor, 490 U.S. 386 (1989), and Scott v. Harris,


                                                      10
 1   550 U.S. 372 (2007), as well as our decision in Terranova v. New York, 676 F.3d 305, cert.

 2   denied, 133 S. Ct. 414 (2012), there is no requirement that a special instruction regarding

 3   the use of deadly force be given. Alternatively, appellee argues that any error in the

 4   instruction was harmless.

 5

 6   B. Preservation

 7           In general, we review challenges to jury instructions in civil cases de novo, “and will

 8   grant a new trial if we find an error that is not harmless.” Sanders v. New York City Human

 9   Res. Admin., 361 F.3d 749, 758 (2d Cir. 2004). If, however, the challenging party failed to

10   object to the charge at trial, we review for plain error, that is “if the error affects substantial

11   rights.” Fed. R. Civ. P. 51(d)(2).2

12           Appellee avers that appellant did not preserve his objection below; appellant rejoins

13   that he did. In support, appellant points to two passages in the transcript of the charge

14   conference. The first dealt directly with the excessive force charge:

15



     2
       Prior to 2003, we reviewed unpreserved objections to jury instructions in civil cases for “fundamental
     error,” which we said was “more egregious than the ‘plain’ error that can excuse a procedural default in a
     criminal trial.” Jarvis v. Ford Motor Co., 283 F.3d 33, 62 (2d Cir. 2002). Consistent with a 2003 amendment
     to Federal Rule of Civil Procedure 51(d), we have since employed a “plain error” standard, see Henry v.
     Wyeth Pharm., Inc., 616 F.3d 134, 152 (2d Cir. 2010); Macquesten Gen. Contracting, Inc. v. HCE, Inc., 128 F.
     App’x 782, 785 (2d Cir. 2005) (“The plain error standard replaces the more stringent ‘fundamental error’
     standard that was employed in this Circuit prior to the 2003 amendment. . . .”), though invocations of the
     earlier “fundamental error” standard have persisted. See S.E.C. v. DiBella, 587 F.3d 553, 569 (2d Cir. 2009).
     In accordance with the language of the Federal Rules, we use “plain error” in what follows, though the
     particular term used does not affect this case.



                                                          11
 1         MS. SWEENEY (Assistant to Plaintiff’s Counsel): Can you explain when

 2         deadly force is justified?

 3         THE COURT: No.

 4         MS. SWEENEY: If there is a threat of serious injury or—

 5         THE COURT: No, I didn’t explain when deadly force is necessary. I don’t

 6         know when it is necessary. If I had to do that, I would say going for a police

 7         officer’s gun may very well be a situation where deadly force is necessary. So

 8         I wouldn’t get into that.

 9

10   The second statement came in the context of a dispute over the burden of proof:

11

12         MR. KUTNER (Plaintiff’s Counsel): They [the defendants] must prove

13         justification through deadly force under New York law, under the U.S.

14         Supreme Court standards, that deadly physical force can only be applied in

15         response or in defense of deadly physical force against the shooter, Trooper

16         Brown, or others in the immediate area.

17                So they would have the basis to prove justification as a defense. It’s

18         not part of ours.

19                Prima facie, we make out a case with a man in his pajamas being shot

20         by the police officer. It is their burden to—in thinking about it—it’s actually

21         Ms. Sweeney’s idea, and I compliment her for raising it. They have turned


                                                 12
 1           the burden upside down.             It’s their defense to prove this conduct was

 2           objectively wrong. It’s not ours to prove the opposite.

 3           THE COURT: Where did you get that from? What case says that?

 4           MR. KUTNER: I’ll look it up overnight. But they didn’t raise it to say it’s

 5           the other way.

 6

 7           Neither of these colloquies sufficed to preserve plaintiff’s objection. “A party who

 8   objects to an instruction or the failure to give an instruction must do so on the record,

 9   stating distinctly the matter objected to and the grounds for the objection.” Fed. R. Civ. P.

10   51(c)(1). Plaintiff did not do this. Plaintiff’s counsel never made clear that he objected to

11   the absence of a Garner/O’Bert instruction, never so much as cited either case, and never

12   explained why such an instruction was required. Indeed, plaintiff’s counsel elsewhere

13   expressed satisfaction with the excessive force instruction actually given.3

14           Later, when the district court proposed to respond to the jury’s request for a

15   definition of excessive deadly force by adding the word “deadly” to each instance of the

16   phrase “excessive force” in the original instruction, plaintiff’s counsel accepted the

17   amended charge.4 The law of this Circuit requires parties “to make a precise objection to

18   the supplemental instruction,” U.S. Football League v. Nat’l Football League, 842 F.2d 1335,

     3
       Plaintiff’s counsel explained that he “thought the Court’s charge was evenly balanced in instructing [the
     jury] as to the nature or the definition of excessive force.” “I think the charge as read is sufficient,” he
     added.
     4
       THE COURT: I’m going to repeat my charge . . . and I would say deadly excessive force. Just add the
     word “deadly.” Any objection to that?
     MR. KUTNER: No, your Honor.


                                                           13
 1   1367 (2d Cir. 1988), as well as to the original instruction. Plaintiff in this case did neither,

 2   and thereby failed to preserve his objection. This being so, we review the instruction given

 3   by the district court for plain error.

 4

 5   C. Plain Error Review

 6             We have long noted that the plain error exception to Rule 51’s objection

 7   requirement “should only be invoked with extreme caution in the civil context.” Pescatore v.

 8   Pan Am. World Airways, Inc., 97 F.3d 1, 18 (2d Cir. 1996). “To constitute plain error, a

 9   court’s action must contravene an established rule of law,” Lavin-McEleney v. Marist

10   Coll., 239 F.3d 476, 483 (2d Cir.2001), and “go[] to the very essence of the case.” Anderson

11   v. Branen, 17 F.3d 552, 556 (2d Cir. 1994). For reasons that follow, we conclude that the

12   district court committed plain error by failing, in the circumstances of this case, to instruct

13   the jury concerning the justifications for the use of deadly force defined in Garner and

14   O’Bert.

15             Appellee argues that the district court was not required to instruct the jury with

16   regard to the Garner/O’Bert factors, and that therefore the instruction contained no error

17   at all, let alone plain error. We disagree. In a case involving use of force highly likely to

18   have deadly effects, an instruction regarding justifications for the use of deadly force is

19   required. The district court erred by failing to give one.

20             In Garner, the Supreme Court explained that “[w]here the officer has probable cause

21   to believe that the suspect poses a threat of serious physical harm, either to the officer or to


                                                   14
 1   others, it is not constitutionally unreasonable to prevent escape by using deadly force.” 471

 2   U.S. at 11. Absent such a perceived threat, the use of deadly force is constitutionally

 3   unreasonable. Id. We embraced this standard in O’Bert, a decision in which we held that

 4   “[i]t is not objectively reasonable for an officer to use deadly force to apprehend a suspect

 5   unless the officer has probable cause to believe that the suspect poses a significant threat of

 6   death or serious physical injury to the officer or others.” 331 F.3d at 36. Like the case

 7   before us, Garner and O’Bert both involved unarmed suspects who were shot to death by

 8   law enforcement officers. These two cases clearly established that (a) absent the recognized

 9   justifications, such shootings constitute excessive force, and (b) juries confronted with

10   similar fact patterns must be instructed accordingly.

11          More recently, the Supreme Court declined to apply the Garner analysis in a case in

12   which the “deadly force” used by law enforcement officers involved a car chase rather than

13   a gun shot. Scott, 550 U.S. at 381-82. The Court observed that “Garner did not establish a

14   magical on/off switch that triggers rigid preconditions whenever an officer’s actions

15   constitute ‘deadly force.’ Garner was simply an application of the Fourth Amendment’s

16   ‘reasonableness’ test.” Id. at 382.

17          Although the Supreme Court’s decision in Scott clarified that a special instruction

18   based on Garner is not necessary (or even appropriate) in all deadly-force contexts, we have

19   since made clear that this limitation does not apply in the original Garner context: the fatal

20   shooting of an unarmed suspect. In Terranova v. New York, another case involving a high-

21   speed car chase, we, of course, followed Scott in rejecting the appellants’ contention that


                                                   15
 1   the district court, by failing to instruct the jury on the basis of the Garner/O’Bert factors,

 2   had left jurors inadequately informed about the law.5 We noted that “absent evidence of

 3   the use of force highly likely to have deadly effects, as in Garner, a jury instruction regarding

 4   justifications for the use of deadly force is inappropriate, and the usual instructions

 5   regarding the use of excessive force are adequate.” 676 F.3d at 309.

 6           But as the same statement made clear, this limitation does not apply to cases in

 7   which, “as in Garner,” there is “evidence of the use of force highly likely to have deadly

 8   effects.” Id. In other words, Terranova’s holding that a Garner/O’Bert charge was not

 9   needed in that case had a strong negative pregnant: in situations (such as those present in

10   Garner, O’Bert, and the case before us) where there is official use of force highly likely to

11   have deadly effects, a jury instruction regarding justifications for the use of deadly force is

12   required, and the usual (less specific) instructions regarding the use of excessive force are not

13   adequate. In such circumstances, the jury must be instructed, consistent with Garner and

14   O’Bert, that the use of force highly likely to have deadly effects is unreasonable unless the

15   officer had probable cause to believe that the suspect posed a significant threat of death or

16   serious physical injury to the officer or to others.

17           In the case before us, the officer intentionally fired at the chest of an unarmed, half-

18   clothed man from point-blank range. Certainly this was a “use of force highly likely” to

19   result in the suspect’s death. This being so, the district court was required to instruct the

     5
      “The present matter is easily distinguishable from Garner given the type of force used—a traffic stop as
     opposed to firing a gun aimed at a person.” Terranova v. New York, 676 F.3d at 309.



                                                          16
 1   jury with regard to the justifications for the use of deadly force articulated in O’Bert and

 2   Garner. By failing to do so, the court committed error.

 3           This error “contravene[d] an established rule of law,” Lavin-McEleney, 239 F.3d at

 4   483, and was sufficiently serious as to undermine “the very integrity of the trial.” SCS

 5   Commc’ns, Inc. v. Herrick Co., 360 F.3d 329, 343 (2d Cir. 2004). The entire trial turned on

 6   whether Brown’s shooting of Rasanen was reasonable. That question was governed by

 7   clear law. The district court was required to instruct the jury on the basis of that law, even

 8   if the jury had not specifically asked for guidance on the matter. That the jury did ask for

 9   such guidance—and did not receive it—underscores the fact that the district court’s failure

10   left the jury confused about the central issue in the case.

11           An error that “deprive[s] the jury of adequate legal guidance to reach a rational

12   decision” on a case’s fundamental issue constitutes plain error. Jarvis, 283 F.3d at 62

13   (internal quotation marks omitted). The district court committed such an error here. We

14   conclude that the court’s failure to instruct the jury on the basis of clearly established and

15   crucially relevant law fatally subverted the trial’s integrity.6

16           This would not be so if, as appellee contends, other facts rendered harmless the

17   district court’s failure to give a required instruction. Appellee asserts that the court’s actual

18   instruction—together with the copy of the New York State Police administrative manual

19   (which contained provisions relating to the Garner/O’Bert standard) that was given to the

     6
      The fact that Terranova’s reaffirmation of the Garner/O’Bert requirement came after this case, while it
     explains the district court’s failure to give the charge, does not alter the fact that this failure constitutes
     plain error. See infra.


                                                              17
 1   jury—amounted to the functional equivalent of the instruction that should have been given.

 2   We cannot agree.

 3          The district court directed the jury: “You must determine whether the plaintiff

 4   proved that . . . the decedent, an unarmed man, was shot and killed unnecessarily by

 5   defendant, Daniel Brown, or whether the shooting occurred during the course of his

 6   attacking the police officer and trying to turn his gun against him, as the defendant

 7   contends.” Appellee suggests that the “whether/or” language of this sentence operates as

 8   an exclusive disjunction tantamount to a Garner/O’Bert charge. To comply with the

 9   charge, on this reading, the jury had to find either (a) that the killing of John Rasanen was

10   unnecessary—i.e. that it constituted excessive force—or (b) that Rasanen was killed while

11   attacking Brown and trying to turn the officer’s gun against him—i.e. that Brown had

12   probable cause to believe that Rasanen posed a serious threat of death or physical injury to

13   Brown or his companions. Appellee argues, then, that this portion of the charge tailored

14   the Garner/O’Bert standard to the facts of this case. Consistent with this section of the

15   instruction, appellee maintains, the jury could find for the defendant only if it found that

16   Brown shot Rasanen in the reasonable belief that Rasanen posed a serious threat of death

17   or physical injury to Brown or others. Appellee suggests that this instruction enforced the

18   substance, even if it did not employ the language, of the Garner/O’Bert requirements.

19          The problem with this reading is that it isolates a portion of the charge from the

20   instruction as a whole.




                                                  18
 1          Appellee’s proposed reading assumes that a finding by the jury that Rasanen “was

 2   killed unnecessarily” must translate automatically into a finding that Brown employed

 3   excessive force. Whatever the abstract merits of such an inference, it does not follow when

 4   one considers the charge as a whole. Other statements in the jury instruction dilute what

 5   appellee would have us read as a strong disjunctive charge.

 6          Elsewhere in the charge, for instance, the court instructed the jury to “consider the

 7   facts and circumstances as you find them to be, including how this confrontation actually

 8   occurred and whether the decedent was resisting and was threatening to reach the gun of

 9   the defendant, Daniel Brown.” (emphasis added). This language implies that whether

10   Rasanen tried to turn Brown’s gun against him was one factor to be considered among

11   many, rather than the decisive factor on which the entire case turned. At the outset of the

12   charge, the court directed the jury to consider “that degree of force a reasonable and

13   prudent police officer would have applied in effecting the search under the circumstances.”

14   The instruction later stressed that “[t]he reasonableness of a particular use of [deadly] force

15   . . . must be judged from the perspective of a reasonable police officer on the scene rather

16   than the 20/20 vision of hindsight.”        Moreover, the court added, “[t]he concept of

17   reasonableness in this regard makes allowance for the fact that police officers are often

18   forced to make split-second judgments in circumstances that are sometimes tense,

19   uncertain, dangerous and rapidly evolving about the amount of force that is necessary in a

20   particular situation.”




                                                   19
 1           In light of these later statements, the charge as a whole gave the jury not two

 2   options, but three. Consistent with the entire charge, the jury could find (a) that the

 3   shooting was unnecessary, and therefore that it constituted excessive force; (b) that the

 4   shooting was necessary—i.e. that it took place in the context of Rasanen’s trying to turn

 5   Brown’s gun against him; or (c) that the shooting seemed necessary—i.e. that Rasanen was not

 6   trying to turn Brown’s gun against him, but that Trooper Brown, making split-second

 7   decisions without the benefit of hindsight, nonetheless acted reasonably under the

 8   circumstances. The charge’s fatal defect is that the jury did not know, because it was not

 9   told, that it could properly place the shooting in this last category only if it found that the

10   Garner/O’Bert requirements (dealing with fear of serious physical harm) were also met.

11           Had the jury been instructed, “You must find for the plaintiff unless you find that

12   Rasanen was shot after attacking Trooper Brown and trying to turn Brown’s gun against

13   him,” the charge would have more closely approximated the Garner/O’Bert standard.7

14   Indeed, such a charge might, in some ways, have been even more advantageous to plaintiff

15   than a clear statement of the Garner/O’Bert standard. But this hypothetical charge is not

16   the charge that was given. Even in isolation, the disjunctive instruction was not nearly so




     7
       We note that it still would not have been a fully proper substitute for a Garner/O’Bert charge. Even if the
     jury found that Rasanen made a move for Brown’s gun, it could still find, in principle, that the shooting
     was excessive—i.e. that Brown did not shoot Rasanen in the reasonable fear of serious physical injury to
     himself or others. One can imagine a scenario in which the suspect is so small and weak, and the officer so
     large and powerful, that even the suspect’s attempt to seize the officer’s gun would not justify the officer in
     slaying the suspect. This might be extremely unlikely, but it is nonetheless a factual question that must be
     submitted to the jury, not a question of law that can be presumed in the charge.


                                                           20
 1   strong. Read in the context of the charge as a whole, that instruction was impermissibly

 2   diluted.

 3          This is so even though the district court informed the jury that certain provisions of

 4   the New York State Police Administrative Manual—provisions that partly echo the language

 5   of Garner and O’Bert—apply to this case. During its deliberations, the jury told the court

 6   that it was considering a provision of the manual from a section entitled, “Use of Deadly

 7   Physical Force,” which reads:

 8

 9                 A Member may use deadly physical force against another person when

10          they reasonably believe it to be necessary to defend the Member or another

11          person from the use or imminent use of deadly physical force. N.Y.S.P.

12          Admin. Manual 16B1(A).

13

14   The jury asked whether certain other provisions applied to this case. The court replied that

15   some did apply and some did not. The provisions the court identified as applicable read as

16   follows:

17

18                 Where feasible and consistent with personal safety, give some warning

19          other than a warning shot BEFORE using deadly force against another person.

20          N.Y.S.P. Admin. Manual 16B1(E).




                                                  21
 1                 Where feasible and consistent with personal safety use every other

 2          reasonable alternative means BEFORE using deadly physical force against another

 3          person. N.Y.S.P. Admin. Manual 16B1(F).

 4                 In considering the use of firearms, understand that YOU ALONE ARE

 5          RESPONSIBLE FOR YOUR ACTS, and that you may be required to justify

 6          your acts in court. N.Y.S.P. Admin. Manual 16B1(H).

 7

 8   None of these provisions, nor all of them together, provides an adequate substitute for an

 9   explicit Garner/O’Bert charge.

10          First, these provisions do not in fact capture the substance of the Garner/O’Bert

11   requirements. Subdivision 16B1(A) does contain language similar to that used in Garner

12   and O’Bert. But unlike the rule announced in those two cases, the manual provision is not

13   framed in exclusive and restrictive terms. The manual provides that officers “may use

14   deadly physical force . . . when they reasonably believe it to be necessary to defend

15   [themselves] or another person from the imminent use of deadly physical force.” It does

16   not say that officers may use deadly physical force only under such circumstances.

17          Second, even if the manual provisions had reproduced the Garner/O’Bert rule

18   verbatim, the court’s statement that those provisions merely “apply” to the case at hand

19   does not substitute for an instruction that the Garner/O’Bert rule is binding as a matter of

20   constitutional law. An administrative manual provision can “apply” to a case in many

21   different ways. In the case before us a reasonable juror might well find, on the basis of the


                                                  22
 1   manual provisions just quoted, that Brown’s conduct departed from police protocol. But

 2   that juror need not find, as a necessary corollary, that Brown’s conduct violated the

 3   plaintiff’s constitutional rights.

 4

 5                                                        III.

 6           We conclude that, in the circumstances of this case—the close-range shooting of a

 7   suspect by a law enforcement officer—the district court was required to instruct the jury

 8   that it must find that this use of force was excessive “unless [the jury found that] the officer

 9   ha[d] probable cause to believe that the suspect pose[d] a significant threat of death or

10   serious physical injury to the officer or others.” O’Bert, 331 F.3d at 36. The district court

11   did not give this charge, and—though it is a close question—we also conclude that it did not

12   give the functional equivalent of this charge.8                 Because the Garner/O’Bert standard

13   governed the fundamental issue in the case—really the only issue in the case—the district

14   court’s failure to instruct the jury on the basis of that standard constituted plain error.

15           The district court’s reluctance to give a special charge on the use of deadly force is

16   perfectly understandable. The Supreme Court’s holding in Scott that such a charge is

17   inappropriate in some contexts might naturally have made district courts reluctant to give

     8
       The district court apparently did not intend to give the functional equivalent of a Garner/O’Bert charge.
     When plaintiff’s counsel’s associate asked the court to “explain when deadly force is justified,” the court
     answered, “I don’t know when it is necessary. If I had to do that, I would say going for a police officer’s gun
     may very well be a situation where deadly force is necessary. So I wouldn’t get into that.” It seems, then,
     that the Court did not intend to instruct the jury that it must find for plaintiff unless it found that Rasanen
     tried to turn Brown’s gun against him. This would not matter, of course, if the charge the Court did give
     amounted to the same thing. But it is consistent with our view that the charge was not the equivalent of
     what is required.


                                                          23
 1   such a charge even in other contexts. But, in our Circuit, whatever doubts Scott might have

 2   raised about the necessity and appropriateness of a Garner/O’Bert charge in the context of a

 3   deadly shooting were put to rest by Terranova.

 4           In the case before us, of course, the district court instructed the jury before

 5   Terranova was decided and amid the lingering uncertainty created by Scott.                              In the

 6   meantime, however, that uncertainty has been dispersed.                       And we must review jury

 7   instructions in light of the law as it stands at the time of appeal. United States v. Nouri, No.

 8   09-3627-cr(L), 2013 WL 780918, at *6 (2d Cir. Mar. 4, 2013); United States v. Polouizzi, 564

 9   F.3d 142, 156 (2d Cir. 2009).9 Under this current law, we find that the instruction given

10   to the jury in this case was plain error.

11

12                                                 CONCLUSION

13           For the foregoing reasons we VACATE the decision of the district court and

14   REMAND for a new trial.




     9
      We have applied this rule in the civil, as well as the criminal, context. See Tirreno v. Mott, 375 F. App’x
     140, 142 (2d Cir. 2010) (summary order).


                                                           24
12-680-cv
Rasanen ex rel. Estate of Rasanen v. Brown

REENA RAGGI, Circuit Judge, dissenting:

        A panel majority concludes that there must be a new trial of plaintiff’s Fourth

Amendment excessive force claim against New York State Trooper Daniel Brown because

the district court failed to give the following instruction: “[T]he use of force highly likely

to have deadly effects is unreasonable unless the officer had probable cause to believe that

the suspect posed a significant threat of death or serious physical injury to the officer or to

others.” Ante at [16]. The majority acknowledges that plaintiff never requested such a

charge at the initial charge conference or prior to a supplemental charge pertaining

specifically to deadly force. Nevertheless, it concludes that such an instruction is so clearly

mandated by Supreme Court and circuit precedent that its omission here was plain error. See

Fed. R. Civ. P. 51(d)(2). I disagree and, therefore, respectfully dissent.1

1.      Waiver

        To begin, it is by no means clear to me that we should review the purported charging

omission even for plain error. Before the district court, plaintiff did not simply fail to object

to the jury charge on the ground identified by the panel majority. Rather, it endorsed the

district court’s excessive force charge as “evenly balanced in instructing as to the nature of

excessive force” and “sufficient” for that purpose. Trial Tr. 2313. As we have observed,



        1
        I do, however, join the majority in rejecting plaintiff’s contentions with regard to its
negligence claim, the timing of the search leading to the fatal shooting, and the weight of the
evidence. See ante at [6-7].
“[s]uch endorsement” of a charge—even in a criminal case—“might well be deemed a true

waiver” of any subsequent challenge, “negating even plain error review.” United States v.

Hertular, 562 F.3d 433, 444 (2d Cir. 2009) (collecting cases).

2.     Plain Error

       Even absent true waiver, however, I do not think this case manifests plain error. The

legal standard for plain error is well known:

       [A]n appellate court may, in its discretion, correct an error not raised at trial
       only where the appellant demonstrates that (1) there is an error; (2) the error
       is clear or obvious, rather than subject to reasonable dispute; (3) the error
       affected the appellant’s substantial rights, which in the ordinary case means it
       affected the outcome of the district court proceedings; and (4) the error
       seriously affects the fairness, integrity or public reputation of judicial
       proceedings.

United States v. Marcus, 130 S. Ct. 2159, 2164 (2010) (alterations and internal quotation

marks omitted); see Fed. R. Civ. P. 51 Advisory Committee Note to 2003 Amendments

(noting that plain error language in Civil Rule 51(d)(2) is “borrowed from Criminal Rule 52”

in order to capture decisions at law recognizing that unpreserved charging errors warrant

appellate review only in “exceptional circumstances”). Plaintiff here fails to satisfy these

requirements.




                                                2
       a.      No Clear or Obvious Error

               (1)    Garner and O’Bert Do Not Clearly Establish a Charging Requirement
                      for Deadly Force Cases

       Plaintiff cannot satisfy the first two requirements of plain error because no controlling

precedent clearly mandates that a district court charge a jury that a precondition to the use

of “force highly likely to have deadly effects is . . . probable cause to believe that the suspect

posed a significant threat of death or serious physical injury to the officer or to others.” Ante

at [16]; see Henderson v. United States, 133 S. Ct. 1121, 1127 (2013) (recognizing plain

error to require “authoritative legal decision” on subject); United States v. Youngs, 687 F.3d

56, 59 (2d Cir. 2012) (“To be plain, an error of the district court must be obviously wrong

in light of existing law” (internal quotation marks omitted)).2

       In concluding otherwise, the panel majority derives such a charging requirement from

the Supreme Court’s statement in Tennessee v. Garner, 471 U.S. 1 (1985), that “[w]here the

officer has probable cause to believe that the suspect poses a threat of serious physical harm,

either to the officer or to others, it is not constitutionally unreasonable to prevent escape by

using deadly force,” id. at 11. See ante at [14-15]. Earlier in Garner, the Supreme Court had

cast this conclusion more restrictively, stating that, in attempting to apprehend an “apparently



       2
        Our concern on plain error review is not whether a district court might ever reference
such probable cause—or the facts demonstrating such probable cause—in charging a jury
considering an excessive force claim. Rather, we properly consider only whether such a
charge is mandated by clearly established law.

                                                3
unarmed suspected felon,” deadly force “may not be used unless it is necessary to prevent

the escape and the officer has probable cause to believe that the suspect poses a significant

threat of death or serious physical injury to the officer or others.” 471 U.S. at 3. We echoed

the latter formulation when referencing Garner in O’Bert ex rel. Estate of O’Bert v. Vargo,

331 F.3d 29 (2d Cir. 2003). There, we stated: “It is not objectively reasonable for an officer

to use deadly force to apprehend a suspect unless the officer has probable cause to believe

that the suspect poses a significant threat of death or serious physical injury to the officer or

others.” Id. at 36.

       To the extent such language might be construed to establish a “precondition” for the

use of deadly force, the Supreme Court has since ruled to the contrary in Scott v. Harris, 550

U.S. 372 (2007). “Garner did not establish a magical on/off switch that triggers rigid

preconditions whenever an officer’s actions constitute ‘deadly force.’” Id. at 382. Scott

counseled that “[w]hether or not [an officer’s] actions constitute[] application of ‘deadly

force,’ all that matters is whether [his] actions were reasonable.” Id. (emphasis added)

(disclaiming existence of “easy-to-apply legal test in the Fourth Amendment context,” and

concluding that, in any given case, court must “slosh . . . through the factbound morass of

‘reasonableness’”). Following Scott, two of our sister circuits have rejected challenges to

jury charges in deadly force cases that relied only on “the general rubric of reasonableness.”

Noel v. Artson, 641 F.3d 580, 587 (4th Cir. 2011); see Acosta v. Hill, 504 F.3d 1323, 1324

(9th Cir. 2007) (concluding that requirement of “deadly force instruction” in addition to

                                               4
“excessive force instruction based on the Fourth Amendment’s reasonableness standard” was

“explicitly contradict[ed]” by and “clearly irreconcilable with” Scott (internal quotation

marks omitted)). In reaching a different conclusion here, the majority creates an unwarranted

circuit split.

        Further undermining the suggestion that Garner and O’Bert clearly established a

charging requirement for excessive force cases is the fact that neither case references

probable cause in discussing how juries should be instructed to consider Fourth Amendment

challenges to the use of deadly force. Indeed, Garner arose in the context of a bench trial.

See 471 U.S. at 5. At issue was the constitutionality of a policy that allowed police to use

deadly force to prevent the escape of any felony suspect. See id. The Supreme Court ruled

that policy unconstitutional on its face, and because the only proffered justification for the

particular application of deadly force was to prevent escape, the Court’s decision of law left

no question of fact to be tried. See id. at 21. At issue in O’Bert was the denial of summary

judgment to a defendant who invoked qualified immunity to prevent his case from going

before a jury. In affirming the denial, this court did not suggest that the officer’s version of

events, in which he professed himself to be confronting resistance from an armed suspect,

raised any probable cause issue for trial. Rather, trial was necessary because the plaintiff

disputed the officer’s account, and “[o]n plaintiff’s version of the facts, in which [the officer]

shot to kill O’Bert while knowing that O’Bert was unarmed, it is obvious that no reasonable




                                                5
officer would have believed that the use of deadly force was necessary.” O’Bert ex rel.

Estate of O’Bert v. Vargo, 331 F.3d at 40.

       In context, then, the references to probable cause in Garner and O’Bert seem directed

more at courts than at juries, providing guidance as to which excessive force cases can be

decided as a matter of law and which require plenary trial. In other circumstances where the

Supreme Court has identified burdens of production and persuasion that inform a district

court’s identification of cases that should proceed to trial, we have observed that a jury “does

not need to be lectured on the concepts that guide a judge in determining whether a case

should go to the jury.” Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 118 (2d Cir. 2000)

(concluding that juries considering employment discrimination claims should not be charged

by reference to McDonnell Douglas framework). The same reasoning applied here further

prevents us from identifying any clearly established and, therefore, plain charging error in

this case.

       Indeed, that conclusion is only reinforced by precedent generally cautioning against

the practice of using decisional language to charge juries in the absence of clear indications

that a reviewing court so intends. See Renz v. Grey Adver., Inc., 135 F.3d 217, 223 (2d Cir.

1997) (observing that juries can be misled when trial judges import into jury charges

language employed by appellate courts to guide judges); accord Gordon v. N.Y.C. Bd. of

Educ., 232 F.3d at 118; see also 9C Charles Alan Wright & Arthur R. Miller, Federal

Practice & Procedure § 2556 (3d ed. 2008) (stating that it “is not helpful” to juries for trial

                                               6
courts “to take quotations from the opinions of appellate courts, never intended to be used

as instructions to juries, and [to] make these a part of the charge”). This caution is

particularly warranted with respect to a concept such as probable cause for at least two

reasons. First, a jury “acts only as a fact-finder,” Gordon v. N.Y.C. Bd. of Educ., 232 F.3d

at 118, and once any disputed facts are resolved, probable cause is a question of law, see

Walczyk v. Rio, 496 F.3d 139, 157 (2d Cir. 2007). Thus, even where a question of probable

cause is relevant to a jury’s resolution of a civil claim—and not simply a gateway for

identifying cases that warrant trial—a district court may well decide not to present it to the

jury but to ask only that the jury decide the existence of those facts that would establish

probable cause. See Walczyk v. Rio, 496 F.3d at 157 (collecting cases); cf. Lore v. City of

Syracuse, 670 F.3d 127, 162 (2d Cir. 2012) (identifying error in district court’s “having the

jury decide the ultimate legal question” of qualified immunity “[i]n light of its factual

findings”). Second, the charge that the majority purports to derive from Garner and

O’Bert—i.e., that deadly force to effectuate an arrest is impermissible “unless the officer has

probable cause to believe that the suspect poses a significant threat of death or serious

physical injury to the officer or others”—risks confusing juries as to the burden of proof,

which in excessive force cases rests only with the plaintiff. See Nimely v. City of New York,

414 F.3d 381, 390 (2d Cir. 2005); Davis v. Rodriguez, 364 F.3d 424, 431 (2d Cir. 2004); see

also Miller v. Taylor, 877 F.2d 469, 470 (6th Cir. 1989) (rejecting claim that burden of proof




                                              7
shifts to defendant in deadly force cases); Edwards v. City of Philadelphia, 860 F.2d 568, 572

(3d Cir. 1988) (same).3

       In this case, as in O’Bert, there was no question that Rasanen’s excessive force claim

had to proceed to the jury. Brown claimed that he shot Rasanen while struggling to regain

control of his own gun after Rasanen had lunged at the officer and Brown felt his gun pointed

against him. Such a scenario plainly demonstrated “probable cause to believe that the

suspect pose[d] a threat of serious physical harm.” Tennessee v. Garner, 471 U.S. at 11; see

generally Florida v. Harris, 133 S. Ct. 1050, 1055 (2013) (describing probable cause as

“practical,” “common-sensical,” “all-things considered” standard for assessing probabilities

in particular factual context); Illinois v. Gates, 462 U.S. 213, 231–32, 238 (1983)

(recognizing probable cause as “fluid” standard that does not demand “hard certainties” but

only the sort of “fair probability” on which “reasonable and prudent men, not legal

technicians, act”). Plaintiff never contended otherwise. Instead, it maintained that forensic

evidence and inconsistencies in witnesses’ accounts showed that Brown had concocted the

gun-struggle story and, in fact, had unnecessarily shot and killed an unarmed man. If the jury

were to accept plaintiff’s version, then “no reasonable officer would have believed that the




       3
        On this appeal, plaintiff does not challenge the district court’s charging it with the
burden of proof on excessive force. See Appellant’s Br. 2 (arguing that trial evidence “far
surpassed [plaintiff]’s burden of proof”).

                                              8
use of deadly force was necessary.” O’Bert ex rel. Estate of O’Bert v. Vargo, 331 F.3d at

441.

       The district court properly focused the jury on this determinative factual dispute.

First, the court correctly charged the general Fourth Amendment principle that “[w]hether

or not the force used in conducting the search was unnecessary, unreasonable and violent is

an issue to be determined by you in light of all the surrounding circumstances, on the basis

of that degree of force a reasonable and prudent police officer would have applied in

effecting the search under the circumstances disclosed in this case.” Trial Tr. 2507, 2566.

But then the trial court told the jury that it “must determine” what “actually occurred,”

specifically, “whether the plaintiff proved that on May 17, 2002, the decedent, an unarmed

man, was shot and killed unnecessarily by defendant Daniel Brown or whether the shooting

occurred during the course of his attacking the police officer and trying to turn his gun

against him as the defendant contends.” Id. at 2508, 2567–68. This disjunctive statement

of the parties’ positions was sufficient to ensure that, if the jury returned a verdict for Brown,

it did so consistent with the Fourth Amendment standard of reasonableness discussed in

Garner and Scott. Indeed, as previously observed, plaintiff’s counsel professed this charge

to be “evenly balanced” and “sufficient” to instruct the jury on the “nature” and “definition

of excessive force under Section 1983 and the Fourth Amendment.” Id. at 2313.

       In nevertheless insisting that Garner and O’Bert support a finding of plain error here,

the majority attempts to cabin Scott to its facts. It submits that even if Scott, a case where

                                                9
deadly force was administered by a motor vehicle, does not require a “probable cause”

instruction in all deadly force cases, such an instruction is still required when the agent of

deadly force is a firearm. See ante at [15-16]. The majority cannot, however, claim that

Scott itself makes such a conclusion plain. Indeed, Scott’s emphasis on the “particular

situation” in which “a particular type” of deadly force was used in Garner precludes lumping

all shooting cases together. The shooting of a fleeing suspect in the back as he tried to run

away from the police, as in Garner, is hardly the same “particular situation” as the shooting

of a suspect who lunges toward the officer and turns his gun against him. This distinction

signals caution in the application of “rigid preconditions” for determining reasonableness in

deadly force cases generally, even those involving shootings. Scott v. Harris, 550 U.S. at

382.

       Indeed, far from distinguishing among deadly force cases, Scott instructs that a single

legal standard applies to all excessive force cases, deadly or otherwise: “Whether or not [an

officer’s] actions constitute[] application of ‘deadly force,’ all that matters is whether [his]

actions were reasonable.” Id. This is a “factbound” determination that requires “‘balanc[ing]

the nature and quality of the intrusion on the individual’s Fourth Amendment interests

against the importance of the governmental interests alleged to justify the intrusion.’” Id.

(quoting United States v. Place, 462 U.S. 696, 703 (1983)).

              (2)     Terranova Does Not Clearly Establish a Charging Requirement for
                      Deadly Force Shooting Cases


                                              10
       The majority maintains that, even if Scott does not plainly establish the need to charge

a probable cause precondition for the use of deadly force in police shooting cases, our own

precedent, specifically Terranova v. New York, 676 F.3d 305 (2d Cir. 2012), does. See ante

at [24] (stating that “whatever doubts Scott might have raised about the necessity and

appropriateness of a Garner/O’Bert charge in the context of a deadly shooting were put to

rest by Terranova”). It is no mean feat for the majority to reach such a conclusion from

Terranova, a case that rejected an argument that a district court had erred when, after Scott,

it refused to supplement its jury charge on the objective reasonableness standard of the

Fourth Amendment with a requested instruction as to Garner’s preconditions for the use of

deadly force. See Terranova v. New York, 676 F.3d at 308–09. The majority nevertheless

derives a requirement to charge a probable cause precondition in deadly force shooting cases

from the fact that Terranova, like Scott, involved vehicles, and that this court therein stated:

“We therefore conclude that, absent evidence of the use of force highly likely to have deadly

effects, as in Garner, a jury instruction regarding justifications for the use of deadly force is

inappropriate, and the usual instructions regarding the use of excessive force are adequate.”

Id. at 309. The majority explains that the phrase “absent evidence of the use of force highly

likely to have deadly effects” is “a strong negative pregnant,” ante at [16]—apparently so

strong as to establish as the controlling law in this circuit that

       in situations (such as those present in Garner, O’Bert, and the case before us)
       where there is official use of force highly likely to have deadly effects, a jury
       instruction regarding justifications for the use of deadly force is required, and

                                               11
       the usual (less specific) instructions regarding the use of excessive force are
       not adequate. In such circumstances, the jury must be instructed consistent
       with Garner and O’Bert, that the use of force highly likely to have deadly
       effects is unreasonable unless the officer had probable cause to believe that the
       suspect posed a significant threat of death or serious physical injury to the
       officer or to others.

Id. (emphasis in original). The conclusion does not bear close scrutiny.

       First, as courts have long recognized, “negative pregnants” are hardly reliable

indicators of either law or fact. See Brooks v. Kyler, 204 F.3d 102, 108 (3d Cir. 2000)

(“[D]rawing instruction from Supreme Court passages through the use of the negative

pregnant is risky and unsatisfactory.”); United States v. Pilot Petroleum Assocs., Inc., 122

F.R.D. 422, 423 n.1 (E.D.N.Y. 1988) (McLaughlin, J.) (observing that “vice . . . known as

the negative pregnant” has been “source of judicial irritation [since] before Columbus

discovered America,” and citing to authority from reign of Henry VI); see also Cool v.

United States, 409 U.S. 100, 108 (1972) (Rehnquist, J., joined by Burger, C.J., and

Blackmun, J., dissenting) (criticizing reversal on ground that instruction contained negative

pregnant as “smack[ing] more of scholastic jurisprudence” than of “commonsense” appellate

review). That alone is reason not to recognize a negative pregnant as the source of

established law supporting a finding of plain error.

       Second, what Terranova stated in the sentence at issue was that, in the circumstances

of that case, absent “force highly likely to have deadly effects,” a special instruction on

justification for deadly force was “inappropriate.” 676 F.3d at 309. At best, the attached


                                              12
negative pregnant leaves open a possibility that, in other circumstances, where the use of

force is highly likely to have deadly effects, such a justification instruction might be

appropriate. But see Capitol Records, Inc. v. Naxos of Am., Inc., 372 F.3d 471, 480 (2d Cir.

2004) (noting “logical fallacy of assuming that the inverse of a proposition is true” (citing

Raymond J. McCall, Basic Logic 125–26 (2d ed. 1952)). In any event, there is a very long

distance in the law between what may be appropriate as a matter of judicial charging

discretion and what is constitutionally required—a distance too long, I think, to allow for the

identification of a plain charging error here.

       Third, even if Terranova’s negative pregnant could be stretched to the point of

establishing a charging requirement for excessive force shooting cases, such a

pronouncement would be dictum, as it was unnecessary to decide the case at hand. See

Baraket v. Holder, 632 F.3d 56, 59 (2d Cir. 2011) (stating that what “distinguishes holding

from dictum” is “whether resolution of the question is necessary for the decision of the case”

(citing Seminole Tribe v. Florida, 517 U.S. 44, 67 (1996)); see also Cohens v. Virginia,

19 U.S. 264, 399–400 (1821) (Marshall, C.J.) (contrasting “question actually before the

Court,” which is “investigated with care, and considered in its full extent,” with other cited,

but “seldom completely investigated,” principles). Such dictum cannot establish law and,




                                                 13
therefore, does not support a finding of plain error. See, e.g., United States v. Whren,

111 F.3d 956, 960–61 (D.C. Cir. 1997).4

       In sum, Garner, O’Bert, Scott, and Terranova do not make it clear and obvious that

juries in all excessive force shooting cases must be charged that there is a probable cause

precondition to the use of deadly force. Thus, the district court’s asserted failure to give such

a charge in this case cannot be deemed plain error.

       b.     Effect on Substantial Rights

       The third element of plain error, an adverse effect on a party’s substantial rights,

generally requires a reasonable probability that the error affected the outcome of the

proceeding. See United States v. Marcus, 130 S. Ct. at 2164. Plaintiff cannot make this

showing because the excessive force claim here turned on a dispute of fact: Brown claimed

that he shot Rasanen in the course of a struggle, while plaintiff claimed that the struggle story

was concocted. Plaintiff never suggested that, even if there had been a struggle, it would

have been unreasonable for Brown to have shot Rasanen. See Trial Tr. 2470 (arguing on

rebuttal summation that Brown invented “false story” about struggle because, otherwise,

there would have been “no good reason” to have used deadly force). Because a suspect’s



       4
         Indeed, further undermining the suggestion that Terranova can be construed to
“establish” a different Garner rule for shooting cases is its own reliance on a shooting case,
Penley v. Eslinger, 605 F.3d 843 (11th Cir. 2010), for the conclusion that none of the Garner
“‘conditions are prerequisites to the lawful application of deadly force,’” Terranova v. New
York, 676 F.3d at 309 (quoting Penley v. Eslinger, 605 F.3d at 850).

                                               14
decision to run directly at an armed officer in close quarters undoubtedly demonstrates

probable cause for a reasonable officer to believe that the suspect posed a significant threat

of death or serious physical injury to the officer or others, plaintiff cannot show that the

omission of a Garner-derived deadly force charge in this case had any effect on the outcome

of the trial.

        In concluding otherwise, the majority points to the district court’s instruction telling

the jury to “consider the facts and circumstances as you find them to be, including how this

confrontation actually occurred and whether the decedent was resisting and was threatening

to reach the gun of the defendant.” Id. at 2509, 2567–68. The majority hypothesizes that the

word “including” might have misled the jury into thinking that the existence of a struggle for

the gun was simply one factor to consider in its deliberations, and not the sole justification

advanced for Brown’s use of deadly force. I disagree. The point of the quoted language was

to instruct the jury that their ultimate determination of reasonableness required them to

consider all facts and circumstances. See Scott v. Harris, 550 U.S. at 383 (referencing

“factbound” nature of reasonableness inquiry). The district court had already made clear to

the jury that, in deciding what “actually occurred,” the parties were disputing two possible

scenarios. Thus, the jury had to “determine whether the plaintiff proved that on May 17,

2002, the decedent, an unarmed man, was shot and killed unnecessarily by defendant Daniel

Brown or whether the shooting occurred during the course of his attacking the police officer

and trying to turn his gun against him, as the defendant contends.” Id. at 2508, 2567–68.

                                               15
When the “including” reference is placed in the context of a charge that thus ascribed a

specific justification argument to Brown that satisfied Garner, see Crigger v. Fahnestock &

Co., 443 F.3d 230, 235–36 (2d Cir. 2006), I think it clear that any Garner charging omission

was necessarily harmless.

       Nor am I persuaded to reach a different conclusion from the majority’s suggestion that

the challenged charge afforded the jury “not two options, but three.” Ante at [20]. The

majority highlights sections of the charge instructing that the reasonableness of the use of

deadly force “must be judged from the perspective of a reasonable police officer on the scene

rather than the 20/20 vision of hindsight,” Trial Tr. 2508, 2551, and that reasonableness

allows for the fact that officers must often make “split-second judgments in circumstances

that are sometimes tense, uncertain, dangerous and rapidly evolving about the amount of

force that is necessary in a particular situation,” id. at 2509; see id. at 2551. The majority

submits that when the disjunctive scenario instruction is viewed together with these, the jury

could find

       (a) that the shooting was unnecessary, and therefore . . . excessive . . . ; (b) that
       the shooting was necessary—i.e. that it took place in the context of Rasanen’s
       trying to turn Brown’s gun against him; or (c) that the shooting seemed
       necessary—i.e. that Rasanen was not trying to turn Brown’s gun against him,
       but that Trooper Brown, making split-second decisions without the benefit of
       hindsight, nonetheless acted reasonably under the circumstances.

Ante at [20] (emphasis in original). The majority concludes that the “fatal defect is that the

jury did not know, because it was not told, that it could properly place the shooting in this


                                                16
last category only if it found that the Garner/O’Bert requirements (dealing with fear of

serious physical harm) were also met.” Id. (emphasis in original). I cannot agree.

       There is no plausible view of the record that would allow the jury to reach either the

second or third posited conclusion without finding that Brown reasonably believed he was

engaged in a struggle for control of his gun. In the second scenario, Brown’s belief would

have been correct; the third scenario admits the possibility of reasonable mistake. That

difference is irrelevant to the probable cause requirement urged by the majority. See Texas

v. Brown, 460 U.S. 730, 742 (1983) (explaining that probable cause does not demand that

officer’s good-faith belief “be correct or more likely true than false”); see also Penley v.

Eslinger, 605 F.3d 843, 853 (11th Cir. 2010) (affirming judgment for officers on claim that

they used excessive force by shooting student waving toy gun).

       The majority further submits that, even if the jury found that Rasanen actually tried

to gain control over Brown’s gun, a jury could conclude that the shooting was excessive

because “[o]ne can imagine a scenario in which the suspect is so small and weak, and the

officer so large and powerful, that even the suspect’s attempt to seize the officer’s gun would

not justify the officer in slaying the suspect.” Ante at [20 n.7] The majority does well to

characterize this scenario as “extremely unlikely.” Id. A discharged bullet’s homicidal

potential does not, after all, depend on the physical size of the person pulling the trigger. In

any event, I think that the majority here conflates the questions of probable cause and

reasonableness. See generally Davis v. Little, 851 F.2d 605, 607–08 (2d Cir. 1988)

                                              17
(distinguishing concepts). If the jury found, as its verdict suggests it did, that it was

objectively reasonable for Brown to think that Rasanen had engaged him in a struggle in

which the control of his firearm was at stake, then any difference in size between the two

men would not be enough for plaintiff to show that a “reasonable and prudent” officer in

such a struggle could not have thought that there was at least a “fair probability” that he

faced a serious threat of physical harm. Illinois v. Gates, 462 U.S. at 231–32, 238. Whether

other circumstances might nevertheless permit a jury to conclude that the use of deadly force

was excessive even in the face of such a probable threat depends on a balancing of the

competing individual and government interests that inform reasonableness. See Scott v.

Harris, 550 U.S. at 383–84. That balancing is not our concern here. The evidence, viewed

in the light most favorable to the jury verdict, was sufficient to support a finding of

reasonableness. To the extent we consider only whether the district court’s failure to

supplement its reasonableness charge with a probable cause instruction affected the outcome

of the case, I am satisfied by a jury verdict that necessarily found facts satisfying probable

cause that there was no prejudice.5




       5
        Insofar as plaintiff’s counsel submitted a post-verdict affidavit recounting jurors’
purported misunderstanding as to excessive force in their deliberations, plaintiff expressly
disavows reliance on these alleged conversations on appeal, a course compelled by Fed. R.
Evid. 606(b) (precluding inquiry into jury deliberations).

                                             18
        c.     Fairness, Integrity, and Public Reputation of Judicial Proceedings

        Because I identify no clear or obvious error in the district court’s failure to give a

Garner-based deadly force instruction, and because I, in any event, identify no prejudice to

plaintiff therefrom, I necessarily conclude that the fairness, integrity, or public reputation of

judicial proceedings would not be called into question by allowing the challenged judgment

to stand.

        In sum, because plaintiff fails to satisfy any of the requirements for plain error, I

respectfully dissent from the majority decision to vacate judgment and order retrial in this

case.




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