16‐336‐cv Callahan v. Cty. of Suffolk

1 In the 2 United States Court of Appeals 3 For the Second Circuit 4 5 6 August Term, 2016 7 No. 16‐336‐cv 8 9 CHRISTOPHER CALLAHAN, INDIVIDUALLY AND AS ADMINISTRATOR 10 D.B.N. OF THE ESTATE OF KEVIN CALLAHAN, PATRICIA CALLAHAN, 11 INDIVIDUALLY, 12 Plaintiffs‐Appellants, 13 14 v. 15 16 POLICE OFFICER THOMAS WILSON, #5675, SERGEANT SCOTT GREENE, 17 #960, 18 Defendants‐Appellees, 19 20 THE COUNTY OF SUFFOLK, DETECTIVE RIVERA, DETECTIVE O’HARA, 21 JOHN DOE, SUFFOLK COUNTY POLICE OFFICERS #1‐10, RICHARD ROE, 22 SUFFOLK COUNTY EMPLOYEES #1‐10, POLICE OFFICER ROBERT KIRWAN, 23 #2815, POLICE OFFICER JAMES BOWEN, #1294, DETECTIVE SERGEANT 24 THOMAS M. GRONEMAN, DETECTIVE LIEUTENANT GERARD PELKOFSKY, 25 Defendants. 26

 The Clerk of Court is directed to amend the caption as set forth above.

1 Appeal from the United States District Court 2 for the Eastern District of New York. 3 No. 12‐cv‐2973 — Leonard D. Wexler, Judge. 4 5 6 ARGUED: FEBRUARY 8, 2017 7 DECIDED: JULY 12, 2017 8 9 10 Before: PARKER, RAGGI, and DRONEY, Circuit Judges. 11 12 13 Appeal from a judgment of the United States District Court 14 for the Eastern District of New York (Wexler, J.) entered following a 15 jury verdict finding defendant police officer Thomas Wilson did not 16 use excessive force, under

and the Fourth 17 Amendment, in fatally shooting Kevin Callahan. We conclude that 18 the jury instruction regarding the legal justification for the use of 19 deadly force by a police officer did not comply with our prior 20 decision in Rasanen v. Doe,

(2d Cir. 2013). Accordingly, 21 we VACATE the judgment of the district court and REMAND for a 22 new trial. 23 24 Judge RAGGI concurs in part and dissents in part in a 25 separate opinion. 26 27 28 DONNA ALDEA (Alexander R. Klein, 29 on the brief), Barket Marion Epstein & 30 Kearon, LLP, Garden City, NY, for 31 Plaintiffs‐Appellants. 32

2

1 BRIAN C. MITCHELL, Assistant 2 County Attorney, for Dennis M. 3 Brown, Suffolk County Attorney, 4 Hauppauge, NY, for Defendants‐ 5 Appellees.

6 DRONEY, Circuit Judge:

7 On September 20, 2011, Kevin Callahan (“Callahan”) was shot

8 and killed during a confrontation with Thomas Wilson, a police

9 officer employed by Suffolk County, New York. Christopher and

10 Patricia Callahan—the decedent’s brother and mother—filed this

11 suit pursuant to

against Wilson, other Suffolk

12 County police officers and employees, and Suffolk County, alleging,

13 among other causes of action, that Officer Wilson’s use of deadly

14 force violated the Fourth Amendment prohibition against excessive

15 force. The case proceeded to trial. Following the completion of

16 evidence, the district court declined to give plaintiffs’ proposed jury

17 instruction regarding the use of deadly force by a police officer that

18 tracked the deadly force instruction we endorsed in Rasanen v. Doe,

3

1

(2d Cir. 2013). The jury returned a verdict in favor of

2 Officer Wilson.

3 We agree with plaintiffs that the district court’s jury charge

4 concerning deadly force was inconsistent with Rasanen, and this

5 error was not harmless. Accordingly, we VACATE the judgment of

6 the district court and REMAND for a new trial.

7 BACKGROUND

8 I. Fatal Shooting of Kevin Callahan

9 In the early afternoon of September 20, 2011, Suffolk County

10 Police Officer Thomas Wilson responded to a radio call from a

11 dispatcher reporting a situation involving a gun at the single‐family

12 home of Patricia Callahan in Selden, New York. The radio

13 transmission indicated that Patricia Callahan—who was not at her

14 home—had been on the phone with her son, Kevin Callahan,1 who

1 At the time, Kevin Callahan was twenty‐six years old.

4

1 was at the home in Selden and had told his mother that another

2 person with him had a gun.

3 When Officer Wilson arrived at the Callahan home, two other

4 Suffolk County officers, Dan Furey and Elisa McVeigh, had already

5 arrived in response to the dispatch. Officers Wilson, Furey, and

6 McVeigh approached the front entrance to the home, where the

7 screen door was closed but the front door was open. The officers

8 knocked on the screen door, announced their presence, and entered

9 to investigate; McVeigh searched the upstairs while Furey and

10 Wilson went downstairs. Officer Wilson repeatedly announced the

11 officers’ presence and asked if anybody was in the home or needed

12 help. The officers did not hear any response.

13 Once they reached the bottom of the stairs, Officers Wilson

14 and Furey split up—Wilson went to the left, and Furey went to the

15 right. Officer Wilson testified that he saw a cleaver knife in the den

16 area downstairs, which heightened his concern. Wilson checked one

5

1 bedroom downstairs and then turned to another bedroom to his

2 right. The door was partially open, and as Officer Wilson began to

3 walk through it, he saw an individual through the partially opened

4 door and called out, “police, I see you, . . . don’t move.” J.A. 270.

5 According to Wilson, the person in the room “start[ed] to square off

6 towards the door” and then forcefully attempted to close the

7 bedroom door on Wilson. J.A. 271.

8 Officer Wilson testified that he had been holding his semi‐

9 automatic service pistol in his left hand down by his left leg, and

10 when the door partially closed on him, he was pinned in the

11 doorframe such that his hand holding the gun was on the other side

12 of the door. Wilson testified that he then saw “some type of object”

13 on the other side of the door, but his flashlight had been knocked

14 out of his right hand and he had only a limited view, so he did not

15 know what the object was. J.A. 275. He testified that the person on

16 the other side of the door also made a sound like “some type of

6

1 growl” that was “scar[]y.” J.A. 275. According to Wilson, he feared

2 that he could be shot through the door or that his gun might be used

3 against him, so he tried to free himself. He testified that, while he

4 was trying to pull himself out of the door, he saw “a shadow coming

5 around the door” and “a hand thrusting towards [him] with an

6 object.” J.A. 309. Still unable to get out of the doorway, Officer

7 Wilson fired his weapon while the gun was on the other side of the

8 door. Wilson testified that after the initial gunshots, the door let up,

9 which caused him to fall back. As he fell, he continued to fire, but

10 now through the door.

11 According to Wilson, he then stood up and ran toward Officer

12 Furey, took cover, and reported over the radio: “shots fired, man

13 behind the door, unknown weapon or object.” J.A. 311–12.

14 Emergency services arrived with more police officers. Officers

15 entered the downstairs bedroom and saw a person later identified as

16 Kevin Callahan behind the bedroom door, sitting on his heels with

7

1 his hands under his chest and his chest on his thighs. The officers

2 asked to see his hands and did not receive a response, at which point

3 they placed him in handcuffs and called medical services for him.

4 Callahan died from his gunshot wounds.

5 Forensic analysis and an autopsy later established that Officer

6 Wilson fired a total of four shots, three of which struck Callahan.

7 Two shots were fired from inside the bedroom, and the other two

8 shots were fired through the door. The first shot fired inside the

9 bedroom resulted in a contact wound to Callahan’s back, and the

10 second shot from inside the bedroom entered Callahan’s back right

11 shoulder and exited from his right abdomen. The shot fired through

12 the door that hit Callahan caused a wound in his front upper

13 abdomen/chest area. No weapon was found in the bedroom where

14 Callahan was located.

8

1 II. Plaintiffs’ Excessive Force Claim

2 In 2012, Christopher and Patricia Callahan filed suit in the

3 United States District Court for the Eastern District of New York

4 against Suffolk County, Officer Wilson, and other Suffolk County

5 police officers and employees. The complaint asserted several state

6 and federal claims in connection with Kevin Callahan’s death,

7 including excessive force pursuant to

and the

8 Fourth Amendment to the U.S. Constitution.2

9

2 Kevin Callahan’s claim under Section 1983 survived his death for the benefit of his estate, and is brought by his brother, Christopher, the administrator of his estate. See Barrett v. United States,

(2d Cir. 1982). Christopher Callahan and Patricia Callahan were named as plaintiffs for additional claims not relevant to this appeal.

9

1 The excessive force claim proceeded to trial in July 2015.3 The

2 jury returned a verdict in favor of Officer Wilson.4 Plaintiffs moved

3 for judgment as a matter of law or a new trial pursuant to Federal

4 Rules of Civil Procedure 50 and 59, which the district court denied.

5 Judgment entered on January 29, 2016,5 and this appeal followed.

6

3 The trial also included an Eighth Amendment claim against Suffolk County Police Sergeant Scott Greene for deliberate indifference to the medical needs of Kevin Callahan after the shooting. The district court bifurcated the trial of plaintiffs’ claims, such that the excessive force and deliberate indifference claims were tried together in the first phase, after which a second trial would address Monell liability of Suffolk County and other related claims if necessary. The first trial also originally included false arrest claims, but plaintiffs voluntarily dismissed those claims after their case‐in‐chief.

4 The jury also returned a defense verdict on the deliberate indifference claim against Sergeant Greene, which plaintiffs have not challenged here. Defendants raised a qualified immunity defense as to both the excessive force and deliberate indifference claims as part of their oral Rule 50 motion, which the district court denied in its entirety. Qualified immunity was not otherwise litigated at trial, and defendants have not raised it on appeal.

5 Although the jury’s verdict addressed plaintiffs’ claims against only Wilson and Greene, it appears that the district court entered judgment in favor of all defendants. The record is not entirely clear, but it appears the district court concluded that the defense verdict in the first phase of the bifurcated trial necessarily defeated plaintiffs’ remaining claims.

10

1 DISCUSSION

2 On appeal, plaintiffs argue that a new trial is necessary

3 because the jury was not properly instructed regarding the legal

4 standards that govern the use of deadly force under these

5 circumstances. We review jury instructions de novo, considering the

6 challenged instruction in light of the charge as a whole. Warren v.

7 Pataki,

(2d Cir. 2016). A jury instruction is

8 erroneous if it “misleads the jury as to the correct legal standard or

9 does not adequately inform the jury on the law.” Velez v. City of

F.3d 128, 134 (2d Cir. 2013) (internal quotation marks

11 omitted). An erroneous jury instruction requires a new trial unless

12 the error is harmless.

We conclude that the use of force

13 instructions here were inconsistent with our prior decision in

14 Rasanen v. Doe,

(2d Cir. 2013), and we cannot say that

15 the error was harmless.

11

1 I. Instructional Error

2 In Rasanen v. Doe, decided approximately two years before the

3 trial here, we explained that the jury charge in a Section 1983 police

4 shooting case alleging excessive use of force by a police officer in

5 circumstances similar to those here must include a specific

6 instruction regarding the legal justification for the use of deadly

7 force.

. The instruction “must” convey “that the

8 use of force highly likely to have deadly effects is unreasonable

9 unless the officer had probable cause to believe that the suspect

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

11 officer or to others.”

. Failure to so instruct the jury

12 constitutes plain error, as it “deprives the jury of adequate legal

13 guidance to reach a rational decision on [the] case’s fundamental

14 issue.”

at 334–35 (alteration and internal quotation marks

15 omitted).

12

1 Defendants‐Appellees suggest that Rasanen may no longer

2 control in light of the Supreme Court’s decision in Plumhoff v.

3 Rickard,

(2014). In Plumhoff, a dangerous police car

4 chase of a fleeing suspect ended when police officers fired at the

5 vehicle, killing the driver and a passenger. See

at 2017–18. The

6 Supreme Court concluded that the officers did not violate the Fourth

7 Amendment’s prohibition against the use of excessive force. See

8 at 2020–22. Plumhoff did not, however, involve any claim of

9 instructional error, nor does the opinion alter the authorities on

10 which Rasanen relied regarding the appropriate jury charge

11 concerning the fatal shooting of suspects in the circumstances

12 presented here. In particular, Plumhoff involved an application of

13 Scott v. Harris,

(2007), which was decided several years

14 before Plumhoff and was discussed at length in Rasanen, see

at 333–34.

13

1 Nor does the Supreme Court’s recent decision in County of Los

2 Angeles v. Mendez,

(2017), undermine Rasanen’s

3 holding as to the requirements for a jury charge in the type of

4 excessive force case presented here. In Mendez, the Supreme Court

5 rejected the Ninth Circuit’s “provocation rule” because that rule

6 allowed a prior independent Fourth Amendment violation “to

7 manufacture an excessive force claim where one would not

8 otherwise exist.”

. In explaining its decision, the Court

9 noted that “[t]he operative question in excessive force cases is

10 ‘whether the totality of the circumstances justifie[s] a particular sort

11 of search or seizure.’”

(quoting Tennessee v. Garner,

, 8–

12 9 (1985)). Importantly, Garner articulated the probable cause

13 requirement for police shooting cases upon which this Court relied

14 in Rasanen. See Rasanen,

(“In Garner, the Supreme

15 Court explained that ‘[w]here the officer has probable cause to

16 believe that the suspect poses a threat of serious physical harm,

14

1 either to the officer or to others, it is not constitutionally

2 unreasonable to prevent escape by using deadly force.’” (quoting

3 Garner,

)).

4 Thus, as relevant here, we conclude that neither Plumhoff nor

5 Mendez overrules Rasanen, which remains the controlling law of this

6 Circuit. Defendants do not attempt to distinguish Rasanen on the

7 facts, which is unsurprising given the similarity between the

8 circumstances of the shooting in that case and the underlying facts

9 here. Accordingly, we are bound to follow Rasanen in this case.6 See

10 Shipping Corp. of India v. Jaldhi Overseas Pte Ltd.,

(2d

11 Cir. 2009) (“[A] panel of our Court is bound by the decisions of prior

12 panels until such time as they are overruled either by an en banc

13 panel of our Court or by the Supreme Court.” (internal quotation

14 marks omitted)).

6 We acknowledge that, when faced with the question we previously addressed in Rasanen, other Circuits have reached different, and sometimes opposite, conclusions. See Johnson v. City of Phila.,

(3d Cir. 2016); Noel v. Artson,

(4th Cir. 2011); Penley v. Eslinger,

(11th Cir. 2010); Acosta v. Hill,

(9th Cir. 2007).

15

1 Applying Rasanen, we conclude that the jury charge regarding

2 deadly force was erroneous. Plaintiffs’ proposed jury instructions

3 included the specific language we endorsed in Rasanen and cited

4 that decision. At the charge conference, plaintiffs’ counsel also

5 orally requested that the jury charge include that language, arguing

6 that “it’s not just a matter of semantics.”7 J.A. 566. The district court

7 denied plaintiffs’ request, and instead instructed the jury in

8 accordance with the general excessive force instructions that apply

9 in situations involving non‐deadly force,8 with two modifications:

10 the charge specifically referred to “deadly force” in two places, and

11 it included language about an officer’s probable cause to believe that

12 he or she faces a threat of death or serious injury. The exact

13 language of the district court’s charge was as follows:

7 Unlike Rasanen, which considered the excessive force charge under plain‐error review because no clear objection was made to that portion of the charge, see 723 F.3d at 333, plaintiffs here clearly preserved their objection. See J.A. 565–67.

8 See, e.g., Terranova v. New York,

(2d Cir. 2012); United States v. Schatzle,

, 254–55 (2d Cir. 1990).

16

1 A person has the right, under the United States 2 Constitution, to be free from the use of excessive force. 3 4 A police officer is entitled to use reasonable force. A 5 police officer is not entitled to use any force beyond 6 what is necessary to accomplish a lawful purpose. 7 Reasonable force may include the use of deadly force. 8 9 A police officer may use deadly force against a person if 10 a police officer has probable cause to believe that the 11 person poses a significant threat of death or serious 12 physical injury to the officer or others. 13 14 In determining whether the police officer used 15 reasonable force, the actions of the police officer are 16 measured by the test of what a reasonable and prudent 17 police officer would have done under the same 18 circumstances confronting the police officer without 19 regard to the police officer’s underlying subjective 20 intent or motivation. 21 22 That means the evil intentions will not be considered 23 excessive force if the force used was in fact reasonable. 24 25 On the other hand, an officer’s good intentions will not 26 make the use of excessive force constitutional. The 27 reasonableness of a particular use of force must be 28 judged from the perspective of a reasonable officer on 29 the scene rather than with hindsight. 30 31 The nature of reasonableness must allow for the fact 32 that police officers are often forced to make split‐second

17

1 judgments under circumstances that are tense, 2 uncertain and rapidly evolving about the amount of 3 force that is necessary in a particular situation. 4 5 This reasonableness inquiry is an objective one. The 6 question is whether the defendant police officer’s 7 actions w[ere] objectively reasonable in light of the facts 8 and circumstances confronting the police officer. 9 10 In determining whether the police officer used excessive 11 force, you may consider, one, the need for the 12 application of force; two, the relationship between the 13 need and the amount of force used; three, the threat 14 reasonably perceived by the police officer; and, four, 15 any efforts made to temper the severity of a forceful 16 response. 17 18 J.A. 605–06.

19 Unlike in Rasanen, the charge here did refer to the probable

20 cause necessary for an officer to reasonably use deadly force. But

21 the instruction did not track the language from Rasanen, and we

22 conclude that it is materially different from the language we

23 approved there, even with the reference to “probable cause.” In

24 Rasanen, we held that the jury “must” be instructed that the use of

25 deadly force is “unreasonable unless the officer had probable cause to

18

1 believe that the suspect posed a significant threat of death or serious

2 physical injury to the officer or to others,” 723 F.3d at 334 (emphasis

3 added); here, the jury was instructed that an officer “may use deadly

4 force . . . if” the officer has the requisite probable cause, J.A. 605

5 (emphases added).

6 Although these two formulations both refer to the probable

7 cause requirement for the use of deadly force, they are not

8 functionally equivalent. In Rasanen, we explicitly distinguished

9 between the permissive “may/if” language and the restrictive

10 “unless/only” language by reference to the New York State Police

11 administrative manual before the jury in that case. See Rasanen, 723

12 F.3d at 335–37. The relevant provision in that manual used nearly

13 identical language to the charge here, stating: “A[n officer] may use

14 deadly physical force against another person when they reasonably

15 believe it to be necessary to defend the [officer] or another person

16 from the use or imminent use of deadly physical force.” Id. at 336

19

1 (internal quotation marks omitted). In concluding that this

2 formulation did not correctly instruct the jury, we explained that the

3 problem with the “may/if” language is that it “is not framed in

4 exclusive and restrictive terms.” Id. at 337. That formulation was

5 insufficient because it did not convey that an officer’s use of deadly

6 physical force is reasonable, and therefore legally permissible, only

7 in a specific circumstance.9 Id.

8 Thus, the charge given to the jury here—which used the same

9 permissive “may/if” language that we specifically rejected in

10 Rasanen—was deficient. This error in the formulation of the specific

11 deadly force instruction was compounded by the balance of the

12 charge regarding excessive force, which further weakened the

9 The dissent understates the prominence of this manual provision in Rasanen by characterizing it as one piece of evidence among many in the trial record. See Dissenting Op., post at 5–6. To the contrary, Rasanen explained that the deadly force provision played a more important role at the trial in that case: the district court instructed the jury that certain manual provisions, including the deadly force provision, “apply to the case,” and the jury indicated that it was specifically considering that provision during its deliberations. 723 F.3d at 336–37 (internal quotation marks omitted).

20

1 probable cause requirement. For example, the jury was also told

2 that an officer “is entitled to use reasonable force,” which “may

3 include the use of deadly force.” J.A. 605. Later in the charge, the

4 district court again instructed the jury according to language that

5 applies to non‐deadly uses of force.

6 These instructions were further “dilute[d],” Rasanen,

at 335, by suggesting that the jury could find that Officer Wilson’s

8 shooting of Callahan complied with constitutional standards for

9 reasons other than the fact that Wilson had probable cause to believe

10 that Callahan posed a significant threat of death or serious injury to

11 Wilson or others. Similar to Rasanen, the entirety of the charge here

12 allowed the jury to conclude that “the shooting seemed necessary”

13 because Wilson “acted reasonably under the circumstances,” even if

14 the jury concluded that Callahan did not pose that type of threat.

15 at 336 (emphasis omitted). Rasanen makes clear, however, that an

16 officer’s use of deadly force in a police shooting case is not, as a

21

1 matter of law, reasonable unless that officer had probable cause to

2 believe that the individual posed a significant threat of death or

3 serious physical injury to the officer or others.

. Thus, the

4 charge here suffers from the same “fatal defect” as the charge in

5 Rasanen—“the jury did not know, because it was not told,” that it

6 could not properly conclude that the shooting was justified unless it

7 found that the probable cause requirement was met.

.

8 Even though the jury was told that Officer Wilson would have

9 been permitted to use deadly force if he had probable cause to

10 believe that Callahan posed a significant threat of death or serious

11 injury, our required charge is more demanding; under Rasanen, such

12 probable cause is the only situation in which Wilson was permitted

13 to use deadly force, and the jury must be so instructed.

14 II. Harmlessness Analysis

15 An erroneous jury instruction requires a new trial unless the

16 error was harmless. Uzoukwu v. City of N.Y.,

(2d

22

1 Cir. 2015). “An error is harmless only if the court is convinced that

2 the error did not influence the jury’s verdict.”

(internal quotation

3 marks omitted). We are not persuaded that the error in the deadly

4 force charge given here was harmless.

5 The focus of the trial was how the events unfolded in the

6 Callahan basement that afternoon. As discussed above, under the

7 instructions the jury was given, the jury could have reached its

8 verdict without concluding that Officer Wilson had probable cause

9 to believe that Callahan posed a threat of death or serious injury.

10 That conclusion is compelled by the fact that the instructions here

11 allowed the jury to return a defense verdict if it found that Wilson

12 acted according to an overly general standard of “reasonableness”

13 that does not comport with the holding of Rasanen—that deadly

14 force in this context is reasonable only if the requisite probable cause

15 standard is satisfied. On this record, we cannot determine whether

16 the jury answered the critical question and concluded that probable

23

1 cause existed, or instead decided the case according to a more

2 general standard that is inconsistent with our Circuit’s precedent in

3 this particular type of case. Because this error allowed the jury to

4 decide the case on different grounds than Rasanen permits, we are

5 not convinced that the error did not influence the jury’s verdict, and

6 we therefore cannot say that it was harmless.10

That the parties referred to probable cause during their summations does not, 10

as the dissent suggests, render the error here harmless. See Dissenting Op., post at 7–9. The parties’ various arguments did not cure the instructional error described above, especially in light of the court’s instructions that the jury was required to follow the law as articulated by the court, not the lawyers.

24

1 III. Evidentiary Rulings

2 Because we have concluded that plaintiffs are entitled to a

3 new trial on the basis of instructional error, we need not consider

4 their remaining arguments. Nevertheless, we briefly address the

5 evidentiary issues raised on appeal in order to provide some

6 guidance in connection with the retrial in this case, as the issues

7 appear likely to recur. See Rentas v. Ruffin,

(2d Cir.

8 2016).

9 Plaintiffs contend that the district court erred by excluding

10 two pieces of evidence at trial: (1) expert testimony about police

11 protocol, and (2) prior incidents in which Officer Wilson fired his

12 weapon. We review a district court’s evidentiary rulings, including

13 those as to expert testimony, for abuse of discretion. Lore v. City of

14 Syracuse,

(2d Cir. 2012). A district court abuses its

15 discretion if it makes “an error of law or a clear error of fact.”

16 Abascal v. Fleckenstein,

(2d Cir. 2016) (internal

25

1 quotation marks omitted). Upon review of the trial record, we

2 identify no such error in the district court’s decisions.

3 At trial, plaintiffs attempted to introduce expert testimony by

4 former New York City police officer Joseph Zogbi regarding police

5 training and protocol. As explained in his report, Zogbi concluded

6 that Officers Wilson and Furey did not act in accordance with

7 standard police room clearing techniques when they arrived at the

8 Callahan residence, and that the officers had not been properly

9 trained with respect to “basic tactical movement and mindset.” J.A.

10 156. The district court precluded Zogbi from testifying as to

11 plaintiffs’ excessive force claim.11

12 We conclude that this decision was not an abuse of discretion.

13 As we have explained, a district court has “broad discretion” to

14 carry out its “gatekeeping function” with respect to expert

Because the trial was bifurcated, the district court ruled that Zogbi would be 11

permitted to testify in the second phase of the proceedings as to plaintiffs’ municipal liability claims.

26

1 testimony, which involves ensuring that the proffered testimony “is

2 relevant to the task at hand.” In re Pfizer Inc. Sec. Litig.,

,

3 658 (2d Cir. 2016) (internal quotation marks omitted). Here, Zogbi’s

4 expert report focused on whether Officer Wilson’s training was

5 adequate and what a properly trained officer would or would not

6 have done in a similar situation. Contrary to plaintiffs’ arguments,

7 the district court acted within its discretion in concluding that these

8 opinions are not relevant to Wilson’s liability on the excessive force

9 claim, as the type of training that Wilson received does not shed

10 light on the dispositive question here—whether Wilson had

11 probable cause to believe that Callahan posed a significant threat to

12 his safety. Nor are Zogbi’s opinions about police training relevant to

13 Wilson’s credibility in recounting what happened in the Callahan

14 basement that afternoon.

15 Moreover, expert testimony is not admissible under Federal

16 Rule of Evidence 702 if it “usurp[s] . . . the role of the jury in

27

1 applying th[e] law to the facts before it,” as such testimony

2 “undertakes to tell the jury what result to reach, and thus attempts

3 to substitute the expert’s judgment for the jury’s.” Nimely v. City of

F.3d 381, 397 (2d Cir. 2005) (first alteration in original)

5 (internal quotation marks omitted). In this case, Zogbi’s suggestions

6 that Officer Wilson did not act reasonably under the circumstances

7 intrude on the jury’s exclusive role as the finder of facts. The district

8 court therefore acted within its discretion in precluding Zogbi from

9 testifying with respect to plaintiffs’ excessive force claim against

10 Officer Wilson.

11 Regarding Officer Wilson’s prior discharges of his weapon,

12 plaintiffs sought to introduce evidence that Wilson had twice fired

13 his pistol at dogs that he perceived to be threatening him while he

14 was on duty. The district court ruled that the evidence was not

15 admissible, and we conclude that this decision was also within the

16 court’s discretion.

28

1 Plaintiffs point to this Court’s “inclusionary approach” to

2 evidence of prior bad acts under Federal Rule of Evidence 404(b),

3 United States v. Lombardozzi,

(2d Cir. 2007), and argue

4 that the evidence should have been admitted to show Officer

5 Wilson’s mental state when he fired at Callahan and to discredit

6 Wilson’s testimony that he perceived the situation to be dangerous.

7 Even if this evidence was offered for a proper non‐propensity

8 purpose—an issue that we need not and do not reach—the district

9 court was nevertheless entitled to conclude that the prejudicial effect

10 of the evidence substantially outweighed its limited probative value.

11 See United States v. Scott,

, 83–85 (2d Cir. 2012). It was

12 therefore not an abuse of discretion for the court to conclude that the

13 evidence was inadmissible.

14 In sum, on the record of this trial, the district court acted

15 within its discretion in excluding Zogbi’s expert testimony and the

16 evidence concerning Officer Wilson’s prior weapons discharges.

29

1 Although we conclude that there was no abuse of discretion here,

2 we note that any retrial may present different circumstances that

3 lead to different conclusions.

4 CONCLUSION

5 The instructions given to the jury in this case regarding the

6 lawfulness of Officer Wilson’s use of force against Kevin Callahan

7 misstated the law of our Circuit as articulated in Rasanen,

333–38, and we cannot say that this error was harmless. We

9 therefore VACATE the judgment of the district court and REMAND

10 for a new trial.

30

REENA RAGGI, Circuit Judge, concurring in part and dissenting in part:

I concur in so much of the panel decision as concludes that the district

court acted within its discretion in excluding testimony regarding police

protocols and prior instances in which Officer Wilson fired his weapon. See

Majority Op., ante at 25–30. I respectfully dissent, however, from that part of the

decision identifying reversible charging error in reliance on Rasanen v. Doe,

(2d Cir. 2013). See Majority Op., ante at 11–24.

At the outset, I recognize that this panel is bound by Rasanen’s holding that

in a civil action against a police officer for the unconstitutional use of deadly

force, a district court cannot charge a jury that the standard for assessing the

officer’s use of such force is simply “reasonableness.” Rather, the court must

charge that the constitutional use of deadly force requires the officer to have had

probable cause to believe that the person killed posed a significant threat of

death or serious injury to the officer or to others. See Rasanen v. Doe, 723 F.3d at

334, 337; see generally Harper v. Ercole,

(2d Cir. 2011) (stating that

panel is bound by prior decisions of court unless reversed en banc or by Supreme

Court). I, therefore, do not repeat here my reasons for dissenting in Rasanen. See

Rasanen v. Doe, 723 F.3d at 338–46 (Raggi, J., dissenting).

I note only that Rasanen continues to set this court apart from our sister

circuits, which construe the Supreme Court’s decision in Scott v. Harris,

(2007), to “abrogate” the use of any special standards for deciding when the

use of deadly force is constitutionally excessive and to “reinstate[]

‘reasonableness’ as the ultimate—and only—inquiry.”1 Johnson v. City of

Philadelphia,

(3d Cir. 2016); see Acosta v. Hill,

(9th Cir. 2007) (“Scott held that there is no special Fourth Amendment standard

for unconstitutional deadly force. Instead, all that matters is whether [police]

actions were reasonable.” (emphasis in original) (internal quotation marks

omitted)); see also Noel v. Artson,

(4th Cir. 2011) (rejecting

argument for special charge on use of deadly force where district court

“submitted the case to the jury under the general rubric of reasonableness”

because “all claims that law enforcement officers have used excessive force . . .

should be analyzed under the Fourth Amendment and its ‘reasonableness’

1 In Scott v. Harris,

(2007), the Supreme Court clarified that Tennessee v. Garner,

(1985) (holding that where 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”), “did not establish a magical on/off switch that triggers rigid preconditions whenever an officer’s actions constitute ‘deadly force[]’”; rather, “Garner was simply an application of the Fourth Amendment’s ‘reasonableness’ test,” Scott v. Harris,

.

2

standard” (emphasis in original)); Penley v. Eslinger,

, 849–50 (11th

Cir. 2010) (holding that “Fourth Amendment’s ‘objective reasonableness’

standard supplies the test to determine whether the use of force was excessive”).

Moreover, since Rasanen, the Supreme Court has reiterated that the

“settled and exclusive framework” for analyzing claims of excessive force is

“reasonableness.” County of Los Angeles v. Mendez,

(2017)

(emphasis added) (rejecting Ninth Circuit rule that otherwise reasonable

defensive use of force is unreasonable as a matter of law where officers provoked

violence to which they then responded with deadly force); see Plumhoff v. Rickard,

(2014) (“A claim that law‐enforcement officers used

excessive [deadly] force to effect a seizure is governed by the Fourth

Amendment’s ‘reasonableness’ standard.”). Insofar as neither Mendez nor

Plumhoff spoke to the issue of how juries should be charged in excessive force

cases, the majority concludes that they do not overrule Rasanen. See Majority

Op., ante at 15. But neither did Tennessee v. Garner,

(1985), or O’Bert ex

rel. O’Bert v. Vargo,

(2d Cir. 2003)—the cases on which Rasanen relied

to identify a probable‐cause charging requirement—speak to jury charges.

Indeed, Garner arose in the context of a bench trial, and the issue in O’Bert was

3

the denial of summary judgment to a defendant who invoked qualified

immunity to avoid trial. See Rasanen v. Doe, 723 F.3d at 340 (Raggi, J., dissenting).

I do not pursue the matter further, however, because even following

Rasanen’s holding, as this panel must, I would not identify charging error in this

case. The jury instructions on the reasonable use of deadly force in Rasanen

failed to make any mention of a need for probable cause to believe that the

suspect posed a significant threat of death or serious physical injury. See id. at

330–31 (majority opinion). By contrast, the district court here cited such probable

cause as the only example of when an officer might permissibly use deadly force:

A police officer is entitled to use reasonable force. A police officer is not entitled to use any force beyond what is necessary to accomplish a lawful purpose. Reasonable force may include the use of deadly force.

A police officer may use deadly force against a person if a police officer has probable cause to believe that the person poses a significant threat of death or serious physical injury to the officer or others.

App’x 605 (emphasis added). The majority nevertheless concludes that this

charge is constitutionally inadequate because the jury could have construed

“may,” in the italicized text, as merely illustrative and, therefore, thought that

deadly force might also be “reasonable” in other circumstances where the cited

probable cause was lacking. See Majority Op., ante at 18–22. I cannot agree.

4

The context in which the probable cause instruction was given indicates

that the word “may” was used to convey legal authorization rather than mere

illustration. See, e.g., Black’s Law Dictionary 1068 (9th ed. 2009) (defining “may”

as “[t]o be permitted to”); Webster’s Third New International Dictionary

(Unabridged) 1396 (1986 ed.) (defining “may” as to “have power,” or “be able”

and to “have permission to”). Thus, when the two quoted paragraphs were

heard together, a reasonable jury would understand that (1) it can sometimes be

“reasonable” for an officer to use deadly force, and (2) when such force may be

used, i.e., when it is constitutionally authorized, is when the officer has “probable

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

physical injury.” App’x 605. This was sufficient to avoid the prejudicial error

identified in Rasanen, i.e., the district court’s failure in that case “to instruct the

jury with regard to the justifications for the use of deadly force articulated in

O’Bert and Garner.” Rasanen v. Doe, 723 F.3d at 334.

Nor do I think a different conclusion is compelled by Rasanen’s

determination that the instruction’s omission in that case was not rectified by

inclusion in the record of a police manual provision advising officers that they

“may use deadly physical force against another person when they reasonably

5

believe it to be necessary to defend” themselves or others “from the use or

imminent use of deadly physical force.” Id. at 336 (quoting N.Y. State Police

Admin. Manual § 16B1(A)); see id. at 337 (observing that manual’s language was

not framed in “exclusive and restrictive terms”). As Rasanen itself concluded, a

jury’s opportunity to consider a manual provision that is in evidence is not the

same as receiving an instruction from the court. See id. at 337 (noting that

manual provisions were of little relevance in any event, as they could “not

substitute for an instruction” to the jury).2

More to the point, whatever a jury could have inferred from these manual

provisions in Rasanen, where the district court provided no instructions as to the

probable cause required to use deadly force, a similar concern is not warranted

2 The majority states that the district court in Rasanen told the jury “that certain manual provisions, including the deadly force provision, ‘apply to the case.’” Majority Op., ante at 20 n.9 (quoting Rasanen v. Doe, 723 F.3d at 336). I respectfully submit that the circumstances are more complex than our decision in Rasanen reports. While the deliberating Rasanen jury sent the district court a note referencing manual provision § 16B1(A) (Self Defense or Defense of Others) in evidence, what it asked was whether “certain other provisions” of the manual applied, id. at 336, specifically, “[§16B1](C), (E), (F), [and] (H),” App’x 1490, Rasanen v. Doe,

(No. 12‐680‐cv). With no further mention of § 16B1(A), the district court told the jury that § 16B1(C) (Prevention of Termination of Felonies) did not apply to the case, but that subdivisions (E), (F), and (H), which related to the feasibility of using warnings or alternatives to deadly force and an officer’s responsibility for the use of force, did apply. See id. at 1501–04; see also Rasanen v. Doe, 723 F.3d at 336–37.

6

here. Not only did the district court follow its general reasonableness charge

with the specific instruction that an officer may use deadly force when he has the

probable cause to believe that a person poses a significant threat of death or

serious physical injury to him or others, but also, that was the only justification

for the use of deadly force that was identified for the jury. The district court’s

charge did not suggest, and the parties did not argue, the existence of any other

circumstances in which deadly force might reasonably be used.

Indeed, even if there was charging error in the district court’s failure to

employ “only if” language respecting such probable cause, I would think that

error harmless beyond a reasonable doubt in this case because the parties’

singular focus at trial and on summation was the presence or absence of probable

cause for Officer Wilson to believe that the deceased Callahan posed a significant

threat to the officer’s life at the time he used deadly force.

Plaintiffs’ counsel told the jury that he did not even dispute that Officer

Wilson held a “subjective” fear for his life when he discharged his firearm,

thereby killing Callahan. App’x 573. Counsel argued only that the

circumstances failed—“objectively”—to demonstrate probable cause for that

fear. Id.; see Dancy v. McGinley,

(2d Cir. 2016) (observing that

7

“Supreme Court [has] made clear” that standard for assessing propriety of

officer’s use of force is “objective reasonableness”). Repeatedly, plaintiffs’

counsel emphasized that Wilson could not lawfully “use deadly physical force,

firing a gun, unless there’s probable cause to believe that his life is at risk,

somebody else is going to use deadly force against him, or that somebody is

going to cause serious physical injury to him or somebody else.” App’x 576; see

id. at 580 (“The law says . . . you’re to rule for the plaintiff, . . . unless there’s

probable cause, reasonably, objectively, probable cause to believe that [the

officer’s] life was in danger or that someone else was in danger, and that’s clearly

not the case here, clearly not the case.”).

The defense, in its summation, neither objected to these statements of the

applicable legal standard nor argued otherwise. To the contrary, defense counsel

embraced the probable cause standard, telling the jury that his summation would

“discuss with you how the evidence has shown that on that day in September

2011, Tom Wilson had probable cause to believe that he was facing a significant

threat of death or serious injury and . . . that it was reasonable and necessary to

use deadly force.” Id. at 584. Counsel then argued how discrete evidence

satisfied that standard. He maintained that (1) the call reporting a dispute

8

involving “a man with a gun” at Callahan’s home, (2) the officers’ observation of

a cleaver in plain view in the home, and (3) the officers’ failure to receive a

response upon announcing their presence in the home objectively supported

Officer Wilson’s belief of “a real and present threat of danger . . . that there may

be a person there that had a gun.” Id. at 585. Counsel further argued that when

Callahan slammed a bedroom door on Officer Wilson, “pinning him with his

gun inside that room,” the officer “was facing a real fear that the person behind

that door could get his weapon and use it against him or, more significantly, was

armed himself and was going to shoot [the officer] through that door.” Id. at 586.

Thus, he maintained, the officer confronted “a significant threat of death,” id. at

594, that put him “in fear of a real threat of death,” id. at 595. Moreover, in

response to the plaintiffs’ argument that Officer Wilson’s real subjective fear of

risk to his life did not equate to objective probable cause to hold such a fear,

defense counsel argued that “[a]ny other officer would have faced that same

threat and would have had that same reasonable fear.” Id.

It was for the jury to decide how persuasive counsel were in arguing that

the evidence did or did not establish probable cause, but the cited record

9

convincingly demonstrates that the singular issue in dispute was whether such

probable cause existed.3

That distinguishes this case from Rasanen. There, the jury “did not know,

because it was not told,” to frame the reasonableness of the officer’s actions in

terms of probable cause. Rasanen v. Doe, 723 F.3d at 336. Here, the jury was so

told, both by the court and by counsel. After generally charging the jury that the

use of deadly force could be reasonable, the district court cited a single

circumstance in which such a conclusion would be warranted: when an officer

had probable cause to fear a risk to life or serious physical injury. Meanwhile,

counsel for both parties, in summation, told the jury that the determinative issue

in the case was whether the officer had probable cause to believe that he was

facing a significant threat of death or serious injury. On this record, I identify no

charging error. But even if I were to do so, I would find the error harmless

beyond a reasonable doubt because I think that on the charge given and the

3 As the Supreme Court has instructed, probable cause is a “flexible, common‐ sense standard.” Florida v. Harris,

(2013). While it requires more than “mere suspicion,” its focus is on “probabilities,” not “hard certainties.” Walczyk v. Rio,

(2d Cir. 2007) (internal citations and quotation marks omitted). Thus, it does not demand “proof beyond a reasonable doubt or by a preponderance of the evidence,” standards that “have no place in a probable cause determination.”

(internal quotation marks and citations omitted); accord Zalaski v. City of Hartford,

(2d Cir. 2013).

10

arguments made, the verdict can only have been based on the jury’s finding that,

when Officer Wilson shot Callahan, the officer had probable cause to believe that

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

officer or to others.

Accordingly, I vote to affirm the judgment in favor of defendants.

11