07-3204-cv
Brothers v. Akshar

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1. WHEN CITING A SUM M ARY ORDER IN A
DOCUM ENT FILED WITH THIS COURT, A PARTY M UST CITE EITHER THE FEDERAL APPENDIX
OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUM M ARY ORDER”). A PARTY CITING
A SUM M ARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 30th day of June, two thousand and ten.

PRESENT:    JOHN M. WALKER, JR.,
            PIERRE N. LEVAL,
            PETER W. HALL,
                              Circuit Judges.
_______________________________________________________

Scott Brothers,
                                             Plaintiff-Appellant,

                      v.                                                    No. 07-3204-cv

Frederick J. Akshar II, Sheriff David E. Harder, Broome County
Sheriff’s Office, County of Broome,
                                             Defendants-Appellees.
_____________________________________________________

For Appellant:                STEPHEN C. GLASSER, (Frank V. Floriani, Susan M. Jaffe, of
                              counsel, on the brief), Sullivan Papain Block McGrath & Cannavo,
                              P.C., New York, New York.

For Appellees:                JOHN L. PERTICONE, (Maria Lisi-Murray, of counsel, on the brief)
                              Levene, Gouldin & Thompson, LLP, Vestal, New York.
       Appeal from a judgment of the United States District Court for the Northern District of

New York (McAvoy, J.), granting summary judgment to the defendants.

       UPON DUE CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED,

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

       Plaintiff-appellant Scott Brothers appeals from the July 10, 2007 judgment of the district

court granting summary judgment in favor of the defendants-appellees on his civil rights claim

asserting excessive use of force pursuant to 42 U.S.C. § 1983. Brothers makes three principal

arguments on appeal: (1) the district court erred by granting defendants summary judgment on

his excessive use of force claim; (2) the district court abused its discretion by excluding

appellant’s proffered expert testimony; and (3) the district court erred by finding that appellant’s

§ 1983 claims are barred by the doctrine of collateral estoppel.

       We review a summary judgment award de novo, viewing the facts in the light most

favorable to the non-moving party. See Havey v. Homebound Mortgage, Inc., 547 F.3d 158, 163

(2d Cir. 2008). While we will not uphold an award in favor of the defendant if the evidence is

sufficient to permit a reasonable jury to find for the plaintiff, the plaintiff must point to more than

a “scintilla” of evidence in support of its claims to defeat summary judgment. See id.; see also

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). We review a district court’s rulings

on admission and consideration of expert testimony under Daubert v. Merrel Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993), for abuse of discretion, and we only find such abuse

if the court’s decision was “manifestly erroneous.” Amorgianos v. Nat’l R.R. Passenger Corp.,

303 F.3d 256, 264-65 (2d Cir. 2002). In applying these standards, we assume the parties’




                                                  2
familiarity with the facts and proceedings in the district court, which we reference only as

necessary to explain our decision.

       Having carefully examined the record before the district court, we agree with that court’s

order granting summary judgment in favor of the defendants on Brothers’s § 1983 claim for

excessive use of force. “[I]n order to establish that [Akshar’s] use of force was constitutionally

excessive within the meaning of the Fourth Amendment, [Brothers] was required to show that

[Akshar’s] actions were objectively unreasonable in light of the facts and circumstances

confronting him . . ..” See Nimely v. City of New York, 414 F.3d 381, 390 (2d Cir. 2005)

(internal quotation marks and alteration omitted). “‘ [A]n officer’s decision to use deadly force

is objectively reasonable only if 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. (quoting

Cowan ex rel. Estate of Cooper v. Breen, 352 F.3d 756, 762 (2d Cir. 2003)). The reasonableness

of an officer’s decision to use force “‘depends only upon the officer’s knowledge of

circumstances immediately prior to and at the moment that he made the split-second decision to

employ deadly force.’” Id. at 390-91 (quoting Cowan, 352 F.3d at 762). Akshar testified that

Brothers sat up and began “to lower his weapon towards” Akshar and his colleague. That

testimony is corroborated, at least to some extent, by the defendants’ forensic pathologist who

testified that “[t]he pattern of gunshot wounds received by Mr. Brothers is entirely consistent

with the statements made by Deputy Akshar.” Brothers presented no admissible evidence to

rebut Akshar’s testimony. Because Akshar’s unrebutted testimony establishes that he had

probable cause to believe Brothers posed a significant threat of death or serious physical injury to




                                                   3
him and his colleague, his decision to use deadly force was objectively reasonable. See Nimely,

414 F.3d at 390-91.

        With respect to Brothers’s claim that the district court improperly excluded his expert’s

testimony, we find any such error immaterial. Federal Rule of Evidence 702 requires district

courts to perform the “gatekeeping” function of determining “that an expert, whether basing

testimony upon professional studies or personal experience, employs in the courtroom the same

level of intellectual rigor that characterizes the practice of an expert in the relevant field.”

Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999). “[T]he trial judge must ensure that

any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert,

509 U.S. at 589.

        Here, the district court did not abuse its discretion in excluding Henry Branche’s

testimony. First, we agree with the district court that Branche lacks the qualifications to testify as

to “forensic crime scene reconstruction or forensic pathology.” The court thus properly excluded

Branche’s testimony “that based upon the nature and location of the Plaintiff’s wounds, Plaintiff

could not have been positioned as ascribed by Deputy Akshar at the time of the shooting.”

Additionally, any error in excluding Branche’s testimony regarding police-safety procedures is of

no consequence because the majority of that testimony was not relevant to Brothers’s excessive

use of force claim. See Salim v. Proulx, 93 F.3d 86, 92 (2d Cir. 1996) (“The reasonableness

inquiry depends only upon the officer’s knowledge of circumstances immediately prior to and at

the moment that he made the split-second decision to employ deadly force.”). For these reasons,

the district court did not abuse its discretion by excluding Brothers’s proffered expert testimony.




                                                   4
       Because we conclude that the district court properly granted summary judgment in favor

of the defendants and did not abuse its discretion in excluding Branche’s expert testimony, we do

not reach the question of whether the district court erred in holding that, under the doctrine of

collateral estoppel, Brothers could not assert that he did not intentionally point his gun at Akshar.

       Upon review, we find Brothers’s remaining arguments without merit. The judgment of

the district court is AFFIRMED.

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




                                                  5
