                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a0589n.06
                                                                                             FILED
                                            No. 10-2584                                 Jun 07, 2012
                           UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


AMANDA LANDIS, Personal Representative for the             )
Estate of Charles Christopher Keiser, Deceased,            )
                                                           )
       Plaintiff-Appellant,                                )    ON APPEAL FROM THE UNITED
                                                           )    STATES DISTRICT COURT FOR
v.                                                         )    THE EASTERN DISTRICT OF
                                                           )    MICHIGAN
GREG GALARNEAU,                                            )
                                                           )
       Defendant-Appellee.                                 )




       Before: BOGGS, NORRIS, and KETHLEDGE, Circuit Judges.

       KETHLEDGE, Circuit Judge. Plaintiff Amanda Landis brought this action under 42 U.S.C.

§ 1983, alleging that Michigan State Trooper Greg Galarneau used excessive force in seizing her

father, Charles Keiser, thereby causing his death. After a trial, the jury found that Galarneau had not

violated Keiser’s constitutional rights, and the district court entered judgment for Galarneau. Landis

then moved for a new trial, claiming errors in jury instructions, admission of expert testimony, and

defense counsel’s closing arguments. The district court denied her motion. We affirm.

       On November 25, 2004, police officers responded to complaints that a large construction

vehicle was blocking U.S. Highway 23 in Livingston County. They found Keiser on the median

attempting to enter another construction vehicle and ordered him to stop. Keiser fled across the

highway. Eventually, Michigan State Trooper Todd Cardoza tackled Keiser. Galarneau arrived at
No. 10-2584
Landis v. Galarneau

the scene and attempted to subdue Keiser, but Keiser grabbed Galarneau by the throat and began

choking him. Galarneau responded with pepper spray, and Keiser released his grip. Keiser then

walked away into the woods. The officers followed him until he stopped in a swampy area, where

he stood in mud and water up to his knees. Galarneau and Cardoza held back until they were joined

by Livingston County Sheriff’s Deputies Jim Lynch and Jason Baker. Then the officers repeatedly

asked Keiser to step out of the water, but he did not respond. Eventually, Galarneau told Lynch to

use his taser. Lynch did so, but the prongs could not penetrate Keiser’s coat. Some of the officers

then rushed Keiser and tried to capture him. Lynch used his taser, set to operate on contact, a few

more times, and Galarneau struck Keiser with his baton. At this time, Keiser was using his arms to

push his head and shoulders above the water. In the melee, Keiser fell or was forced down into the

water. The officers tried to handcuff him. At some point, Keiser’s head went underwater—whether

because of his own actions or the officers’ is in dispute. When Lynch noticed that Keiser’s head was

underwater, he pulled on Keiser’s hair in an attempt to lift his head. The officers finally succeeded

in handcuffing Keiser and removed him to dry land. They discovered that he was lifeless and called

for an ambulance. Autopsies later revealed that Keiser had drowned to death.

        Landis filed suit against the officers and Livingston County. The district court denied

summary judgment to the officers, and we affirmed. See generally Landis v. Baker, 297 F. App’x

453 (6th Cir. 2008). Before trial, the court dismissed all defendants but Galarneau (largely as a result

of settlements). Thus, the sole issue at trial was whether Galarneau violated Keiser’s Fourth

Amendment right to be free from excessive force during a seizure. After five days of trial, the jury

deliberated for fifteen minutes and returned a verdict for Galarneau. Landis moved for judgment as

                                                  -2-
No. 10-2584
Landis v. Galarneau

a matter of law or, in the alternative, a new trial. The district court denied the motion. Landis

appeals the denial of a new trial. (She did not contest the denial of judgment as a matter of law until

her reply brief, and has therefore waived that issue. See Sanborn v. Parker, 629 F. 3d 554, 579 (6th

Cir. 2010).)

        Landis first challenges the district court’s failure to give two of her requested jury

instructions. We review a district court’s refusal to give a party’s requested jury instructions for an

abuse of discretion. Morrison v. B. Braun Med. Inc., 663 F.3d 251, 257 (6th Cir. 2011). That refusal

constitutes an abuse of discretion when “(1) the omitted instruction is a correct statement of the law;

(2) the instruction is not substantially covered by other delivered charges; and (3) the failure to give

the instruction impairs the requesting party’s theory of the case.” Id. (quotation omitted).

        Landis’s first proposed instruction stated that Galarneau could be liable for the actions of the

other officers and that “[h]is participation” in the events at issue “is sufficient” to find him liable.

But her instruction is not entirely correct. The law is actually that “[e]ach defendant’s liability must

be assessed individually, based on his or her own actions.” Dorsey v. Barber, 517 F.3d 389, 399 n.4

(6th Cir. 2008). Sometimes those actions are unconstitutional because of their effects on the

behavior of other officers. For example, when an officer fails to prevent a second officer’s use of

excessive force, the first officer may be liable. See Floyd v. City of Detroit, 518 F.3d 398, 406 (6th

Cir. 2008). Likewise, an officer may be liable for “signaling” to another officer that the latter should

use excessive force, or for “participating in the tactical decision” to use such force. Id. at 407. But

an officer’s mere participation in events that include the use of excessive force is not itself sufficient

grounds to impose liability. See Wilson v. Morgan, 477 F.3d 326, 337 (6th Cir. 2007). Only when

                                                   -3-
No. 10-2584
Landis v. Galarneau

an officer has “direct responsibility for the challenged action”—here, the allegedly excessive

force—may he be liable. Id.

       Thus, Landis was required to show that Galarneau himself violated the Constitution by asking

another officer to use excessive force or by failing to stop him from doing so. Admittedly, that is

part of what Landis alleges happened here: she says that Galarneau asked Lynch to tase Keiser and

that he did not stop the other officers from causing Keiser’s head to become submerged. But that

is not what Landis’s proposed instruction said. Rather, it erroneously stated that Galarneau could

be liable for mere participation and suggested that the jury need not analyze his actions specifically.

       Instead of reading either party’s proposed instruction, the district court told the jury that

Galarneau would be liable if he “performed acts that operated to deprive Charles Keiser of one or

more of his federal constitutional rights[.]” This instruction was not as specific about liability for

another officer’s actions as Landis may have liked. But it did correctly state the law, whereas the

instruction that Landis requested did not. So we reject this argument.

       Landis’s second proposed instruction stated that the jury need not “find that the Defendant

had any specific intent” to violate the Fourth Amendment “in order to find in favor of the Plaintiff.”

In support, Landis points out that an officer’s bad motives do not matter for an excessive-force claim.

See Graham v. Connor, 490 U.S. 386, 397 (1989). But the district court correctly instructed the jury

on this point: “The question is whether the defendant, Greg Galarneau’s actions are objectively

reasonable in light of the facts and circumstances confronting him, without regard to his underlying

intent or motivation. An officer’s evil intentions will not make a Fourth Amendment violation out

of an objectively reasonable use of force. Nor will an officer’s good intentions make an objectively

                                                  -4-
No. 10-2584
Landis v. Galarneau

unreasonable use of force constitutional.” [Rec. 159, 2/16/10 Transcript at 126.] The last two

sentences are a direct quotation from Graham. Thus, we reject this argument as well.

          Landis next argues that a defense expert witness misstated the law by claiming that Galarneau

had no duty to protect Keiser from harm until Galarneau handcuffed him. As an initial matter, this

testimony seems to implicate a legal question, rather than a factual one, so it was likely inadmissible.

See Chavez v. Carranza, 559 F.3d 486, 498 (6th Cir. 2009) (“An expert opinion on a question of law

is inadmissible”). But Landis did not object to this testimony, which means that we review its

admission only for plain error. See Bowman v. Corr. Corp. of Am., 350 F.3d 537, 548 (6th Cir.

2003). Landis must therefore show that the error affected her “substantial rights[.]” Id.

          She cannot do so. Landis’s principal theory at trial was not that Galarneau failed to protect

Keiser, but that Galarneau himself used or requested the use of excessive force. Any prejudice from

the expert’s testimony is not sufficient to warrant a new trial under the standard of plain-error

review.

          Finally, Landis complains about a litany of supposedly improper remarks that Garlaneau’s

lawyer, James Farrell, made during closing argument. Ordinarily, improper remarks warrant a new

trial in civil cases only when “there is a reasonable probability that” they influenced “the jury’s

verdict.” Fuhr v. Sch. Dist. of City of Hazel Park, 364 F.3d 753, 760 (6th Cir. 2004). But Landis

must make an even stronger showing here, since again she did not object to the remarks. Id.

          Landis first challenges Farrell’s claim that, if a police officer does not “have control” over

a suspect, he has no “duty to take care of the guy.” As Landis points out, these comments misstate

the test for when an officer “owe[s] the victim a duty of protection against the use of excessive

                                                   -5-
No. 10-2584
Landis v. Galarneau

force.” Turner v. Scott, 119 F.3d 425, 429 (6th Cir. 1997). That duty arises “when (1) the officer

observed or had reason to know that excessive force would be or was being used, and (2) the officer

had both the opportunity and the means to prevent the harm from occurring.” Id. A defendant-

officer might be liable for failure to protect when he could stop another officer from using excessive

force even when the defendant did not himself have control of the suspect. Even so, failure-to-

protect was not Landis’s main theory at trial. And the court instructed the jury to follow the law as

stated by the court in its instructions. Landis has not shown sufficient prejudice to warrant a new

trial.

         Landis also argues that some of Farrell’s comments were misleading. Farrell pointed out that

“Galarneau is the only defendant here.” Landis notes that other defendants had settled, and faults

Farrell for omitting this detail; but she admits that it would have been improper “to put the fact of

settlement in front of the jury.” But there was nothing improper about Farrell’s truthful statement,

which focused the jury on the issue at hand. Similarly, Farrell pointed out that Landis had no

evidence—and made no argument—that any officer had affirmatively held Keiser’s head under the

water. This statement too was accurate.

         Landis also complains about Farrell’s comment that “there’s some embellishment” in

Landis’s story about how often she spoke with her father, which was relevant to the question of

damages. Farrell’s remark went to the point that Landis had initially told the police that she had not

had much contact with Keiser, but that, after she filed suit, she claimed to have seen him frequently.

Suffice it to say that this comment was fair game. The same is true for Farrell’s comment that



                                                 -6-
No. 10-2584
Landis v. Galarneau

Landis’s expert was “bought and paid for” and therefore would say “whatever the lawyer told him

to say,” since the expert here testified that he had been paid for his testimony.

          Landis next contends that Farrell impermissibly vouched for the defense witnesses when he

said that the officers “all felt comfortable testifying which tells me that they’re telling the truth.”

Although Farrell phrased his comment in terms of what the evidence told him, it is clear that he was

permissibly “argu[ing] reasonable inferences from the evidence.” Collins, 78 F.3d at 1040.

          Two other comments might be more problematic. Farrell said that the Michigan State Police

was, “in [his] opinion,” the “most professional police force we have in the state” and thus the

agency’s finding, offered in evidence, that Garlaneau did not breach any duty should carry some

weight.     Similarly, Farrell argued that his expert witness had proven himself unbiased by

emphasizing officers’ duty to act ethically. Farrell said “I believe him. He would have told me the

truth, I’m sure.” He concluded that the expert is “a very honorable guy.” These comments arguably

state Farrell’s opinion based on personal knowledge, rather than merely suggesting a conclusion

drawn from the evidence. But this sort of ambiguity is precisely the sort that a party should bring

to the court’s attention on the spot—when it can be easily clarified—rather than asking for a new

trial later. And in any event, the judge instructed the jury that counsel’s arguments were not

evidence. Landis cannot show that she was prejudiced by any of Farrell’s comments in closing

argument.

          Landis also argues that, in analyzing Farrell’s comments, we should hold him to the higher

standard of a government prosecutor. But we need not consider the merits of that argument, because

we would not grant relief based upon these comments in any event.

                                                  -7-
No. 10-2584
Landis v. Galarneau

      The judgment of the district court is affirmed.




                                              -8-
