20-624 Aponte v. Kanbur

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 30th day of August, two thousand twenty-one.

PRESENT: BARRINGTON D. PARKER, GERARD E. LYNCH, JOSEPH F. BIANCO, Circuit Judges. _____________________________________

John R. Aponte,

Plaintiff-Appellant,

v. 20-624

Police Officer Mehmet Kanbur, Shield # 4045,

Defendant-Appellee. ∗ _____________________________________

FOR PLAINTIFF-APPELLANT: LAUREN KAPLIN (Adam Brent Siegel, New York, NY, on the brief), Freshfields Bruckhaus Deringer US LLP, Washington, DC.

FOR DEFENDANT-APPELLEE: LORENZO DI SILVIO (Richard P. Dearing, Scott Shorr, on the brief), Assistant Corporation Counsel, for James E. Johnson, Corporation

∗ The Clerk of Court is respectfully directed to amend the caption as above. Counsel of the City of New York, New York, NY.

Appeal from a judgment of the United States District Court for the Eastern District of New

York (Donnelly, J.).

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

DECREED that the judgment of the district court is AFFIRMED.

Plaintiff-Appellant John Aponte appeals from the January 16, 2020 judgment of the United

States District Court for the Eastern District of New York (Donnelly, J.). Aponte brought a single

claim of excessive force against Defendant-Appellee Officer Mehmet Kanbur under

, arising out of an incident at his home on August 10, 2015. In particular, Aponte alleged

that, while at his front door with other New York Police Department (“NYPD”) officers in

connection with a “domestic violence [i]ssue,” Kanbur used “a martial arts arm lock choke hold”

against Aponte, slammed him against a wall, and, in the process, strangled him without any

provocation whatsoever. Joint App’x at 18. Following a four-day jury trial, the jury returned a

verdict in favor of Kanbur.

On appeal, Aponte argues that he should be granted a new trial on three grounds. First,

he contends that the district court abused its discretion by declining to admit evidence contained

in an NYPD Internal Affairs Bureau (“IAB”) report regarding Kanbur’s off-duty arrest in

connection with a domestic dispute. 1 Second, Aponte asserts that the district court abused its

1 An application was made to seal the oral argument because the IAB report and related evidence were the subject of a protective order in the district court. That application was initially granted to allow the parties an opportunity to argue for the sealing of the portion of the oral argument discussing that evidence. After hearing the position of the parties on the sealing issue, we denied the application to seal any portion of the oral argument and conducted the argument in public. Thus, the Court’s prior sealing order is vacated.

2 discretion when it excluded the NYPD Patrol Guide and NYPD Police Student Guide (together,

the “NYPD Guides”) from evidence. Lastly, Aponte argues that the district court erred in

declining to instruct the jury that the Fourth Amendment generally requires police officers to make

arrests pursuant to valid arrest warrants, and instructing the jury that whether the police officers in

this case had an arrest warrant was irrelevant to their conclusion as to whether Kanbur used

excessive force. We assume the parties’ familiarity with the underlying facts, procedural history,

and issues on appeal, which we reference only as necessary to explain our decision to affirm.

I. The Evidentiary Rulings

“We review evidentiary rulings for abuse of discretion and reverse only for manifest error.”

Tardif v. City of New York,

(2d Cir. 2021). District courts are afforded “wide

latitude . . . in determining whether evidence is admissible.” Manley v. AmBase Corp.,

(2d Cir. 2003) (internal quotation marks omitted). Accordingly, “[e]ven if we conclude

that the district court abused its discretion . . . ‘an erroneous evidentiary ruling warrants a new trial

only when a substantial right of a party is affected, as when a jury’s judgment would be swayed in

a material fashion by the error.’” Warren v. Pataki,

(2d Cir. 2016) (quoting

Lore v. City of Syracuse,

(2d Cir. 2012)); see also Tesser v. Bd. of Educ. of City

Sch. Dist. of City of N.Y.,

(2d Cir. 2004) (“An erroneous evidentiary ruling that

does not affect a party’s substantial right is thus harmless.” (internal quotation marks omitted)).

A. Evidence of the Alleged Domestic Dispute

Aponte first challenges the district court’s decision to exclude from evidence an IAB report

(including the evidence contained therein) pertaining to Kanbur’s arrest for allegedly choking his

wife during a domestic dispute. Although the charges resulting from the arrest were dismissed,

3 Aponte argued that evidence of Kanbur’s arrest and the related IAB investigation and report

regarding the domestic dispute were admissible to show a pattern of using chokeholds when

angered because his authority was verbally challenged. We conclude that the district court did

not abuse its discretion in determining that such evidence was precluded by Federal Rule of

Evidence 404(b)(1) because it was an impermissible attempt to show “pure propensity,” Joint

App’x at 730, and was not admissible under the circumstances of this case for any of the proper

purposes enumerated in Rule 404(b)(2).

We are similarly unpersuaded by Aponte’s related contention that the district court abused

its discretion when it denied his request to allow his trial counsel to cross-examine Kanbur

regarding his purported failure to notify the NYPD about his arrest following the alleged domestic

dispute. Aponte argues that this line of questioning was admissible to attack Kanbur’s credibility.

As to this request, the district court ruled that evidence of Kanbur’s alleged failure to report was

only “marginally relevant” to his credibility and concluded that Aponte again sought to question

Kanbur on these issues only to show propensity. Joint App’x at 740.

To be sure, under Federal Rule of Evidence 608(b), a district court “may, on cross-

examination, allow [specific instances of a witness’s conduct] to be inquired into if they are

probative of the [witness’s] character for truthfulness or untruthfulness[.]” However, like

evidence admissible under Rule 404(b), questioning that goes to a witness’s character for

truthfulness or untruthfulness is subject to Rule 403. See Hynes v. Coughlin,

(2d Cir. 1996) (“The trial judge has discretion under Rules 608(b) and 403 to determine whether

[questioning related to a witness’s character for truthfulness], though relevant, should be

excluded.”); see also Fed. R. Evid. 403 (“The court may exclude relevant evidence if its probative

4 value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues,

misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”).

In the instant case, the district court considered the risk of unfair prejudice to Kanbur due to the

jury’s potential improper consideration of the alleged conduct as propensity evidence and its

marginal relevance to Kanbur’s credibility. We find no abuse of discretion in the district court’s

balancing of these factors under Rule 403 and its decision to preclude such evidence even on the

credibility issue. 2

B. The NYPD Guides

Aponte further contends that that the district court abused its discretion in declining to

admit the NYPD Guides, which unequivocally state that NYPD personnel are prohibited from

using chokeholds. See Joint App’x at 646 (NYPD Patrol Guide stating that “[m]embers of the

[NYPD] will NOT use chokeholds”), 678 (NYPD Police Student’s Guide stating that “[t]he

[NYPD’s] policy . . . is clear: choke holds may not be used by members of the [NYPD] against

other persons”). Although it ruled that it would allow questioning on NYPD policies, the district

court precluded the NYPD Guides, stating that “the patrol guide itself is not going to be permitted

into evidence because it’s not the standard that the jury is going to be applying, it’s a guide for

officers.” Joint App’x at 731. 3 Even assuming that this evidentiary ruling was an abuse of

2 On appeal, Aponte also argues that Kanbur’s alleged false testimony about the alleged domestic dispute during his deposition was relevant to his credibility. However, Aponte never raised this ground for admission with the district court. In any event, any falsity with regard to Kanbur’s deposition testimony could only be proven through extrinsic evidence, which is expressly precluded under Rule 608(b). 3 We presume that this ruling applied to the NYPD Student’s Guide as well.

5 discretion, we conclude that the preclusion of the NYPD Guides did not affect Aponte’s substantial

rights and was, therefore, harmless.

As noted above, “an erroneous evidentiary ruling warrants a new trial only when a

substantial right of a party is affected, as when a jury’s judgment would be swayed in a material

fashion by the error.” Warren,

(quoting Lore,

). To the extent

the complaining party’s substantial rights are unaffected, such an erroneous ruling is considered

to be harmless. Tesser,

. “Whether an evidentiary error implicates a substantial

right depends on the likelihood that the error affected the outcome of the case.”

(internal

quotation marks omitted).

Here, the jury heard Kanbur’s own testimony that NYPD regulations prohibit the use of

chokeholds. Specifically, on cross-examination, when asked whether members of the NYPD are

permitted to “apply force to somebody’s throat,” Kanbur stated that “[i]t’s prohibited, but you

gotta understand the circumstances also. Every situation is different, okay, but it’s a prohibited

act, yes.” Joint App’x at 1249. Indeed, Kanbur did not attempt to justify the use of a chokehold

in this case; rather, he denied ever applying a chokehold against Aponte. Further, in his

summation, Aponte’s counsel reiterated to the jury that “you know [Kanbur] testified that he

understood, based upon his professional training, that applying force to someone’s throat is

prohibited by the NYPD,” and Kanbur’s counsel never argued to the contrary. Joint App’x at

1349. Given that the jury heard uncontroverted evidence that NYPD regulations prohibit

chokeholds, we conclude that the preclusion of the NYPD Guides, where those regulations are

memorialized, did not “affect[] the outcome of the case,” Tesser,

(internal

quotation marks omitted), because the jury had before it (and was later reminded of) undisputed

6 evidence that the NYPD does not permit its officers to use chokeholds. Accordingly, assuming—

without deciding—that the district court made an erroneous evidentiary ruling with respect to the

NYPD Guides, such error does not warrant a new trial. See Warren,

.

II. Jury Instructions

Finally, Aponte contends that the district court erred by declining to instruct the jury that

the Fourth Amendment generally requires arrests inside a person’s home to be conducted pursuant

to an arrest warrant, and by instructing the jury that whether Kanbur and his fellow officers had a

warrant for Aponte’s arrest on August 10, 2015 was irrelevant to their assessment of whether

Kanbur ultimately used excessive force. We find Aponte’s argument unpersuasive.

Before the district court, Aponte sought the following jury instruction: “In general, an

arrest inside a person’s home violates the Fourth Amendment to the U.S[.] Constitution if it is not

conducted pursuant to a valid arrest warrant.” Joint App’x at 721. The district court declined to

give that instruction, 4 and instead instructed the jury that “[a]n arrest warrant is not required every

time an officer makes an arrest. Whether the police officers had an arrest warrant in this case is

not relevant to your determination on the question of whether Sergeant Kanbur used excessive

force against the plaintiff.” 5 Joint App’x at 1384; see also Joint App’x at 1078 (curative

4 In connection with Kanbur’s related request that Aponte be precluded “from suggesting, through argument and questioning, that the warrantless entry into [Aponte’s] apartment was improper,” Joint App’x at 748, the district court explained its view that the warrant issue “is a side journey that we don’t have to take in this trial because there’s no false arrest claim, it’s simply excessive force. And whether or not . . . Kanbur had the authority to go into the apartment really doesn’t matter because [Aponte’s] claim is that when [Kanbur] went into the apartment, he used excessive force against [Aponte]. That’s the issue. So there’s no need to go into whether or not the entry was legal. . . . I don’t want to get into a long thing about this because it really is not relevant.” Joint App’x at 802. 5 Kanbur was promoted to the rank of Sergeant following the events at issue in this case.

7 instruction to the jury during the trial that “[t]here’s . . . been reference to a warrant[, which is] not

something that’s part of the case as far as you are concerned. Not every encounter between the

police and civilians requires a warrant[.] . . . [I]t’s not a factor that will go into your

determination.”). Aponte asserts that this was prejudicial error because it “withheld from the jury

critical aspects of the legally relevant totality of the circumstances, and was harmful because it

prevented the jury from considering that . . . Aponte was not resisting arrest or under a legal

obligation to accompany officers to the precinct at the time” Kanbur allegedly used a chokehold

against him. Appellant’s Br. at 8–9.

As an initial matter, the parties disagree as to the standard of review we should apply with

respect to this issue. Specifically, Aponte argues that his challenge to the district court’s jury

instructions is subject to de novo—or, failing that, plain error—review. See Rasanen v. Doe,

, 331–32 (2d Cir. 2013) (“In general, we review challenges to jury instructions in civil

cases de novo, and will grant a new trial if we find an error that is not harmless. If, however, the

challenging party failed to object to the charge at trial, we review for plain error . . . .” (citation

and internal quotation marks omitted)). For his part, Kanbur asserts that, because Aponte failed

to object to the jury instructions, his challenge is subject to review for “fundamental error.”

Appellee’s Br. at 49 (citing Jarvis v. Ford Motor Co.,

(2d Cir. 2002)); but see

Rasanen,

n.2 (stating that, prior to the 2003 amendment to Federal Rule of Civil

Procedure 51(d), we employed the more-exacting fundamental error standard to unpreserved

challenges to jury instructions, and that, following that amendment, we employ the plain error

standard). We need not resolve this dispute, however, because, as set forth below, we conclude

8 that there was no error here. Thus, this challenge to the district court’s jury instructions fails under

any standard.

We agree with the district court that the fact that Kanbur and the other officers on the scene

had no warrant was irrelevant in this excessive force case. Of course, in the context of a false

arrest claim, the existence of a valid arrest warrant supported by probable cause is critical because

arrests pursuant to a warrant, which are generally presumed to be reasonable given that warrants

cannot be issued absent probable cause, see Walczyk v. Rio,

, 155–56 (2d Cir. 2007),

can serve as a complete defense to such claims, see Simpson v. City of New York,

(2d Cir. 2015) (“A finding of probable cause is a complete defense to false arrest claims.”).

Moreover, it is well settled that a warrantless entry into a home must meet an exception to the

warrant requirement, such as exigent circumstances, to comply with the Fourth Amendment. See

Chamberlain ex rel. Chamberlain v. City of White Plains,

, 105–06 (2d Cir. 2020).

However, Aponte brought no false arrest or unlawful entry claim here and, in any event, the inquiry

in an excessive force case is different. In other words, the jury in this case was charged with

determining whether Kanbur used force of any kind against Aponte and, if so, whether that force

was objectively reasonable under the circumstances, not whether Kanbur had a lawful basis to

either enter Aponte’s apartment or arrest him.

To the extent Aponte argues that the jury needed to be aware of the lack of an arrest warrant

to properly assess the totality of the circumstances surrounding Kanbur’s alleged use of excessive

force, see County of Los Angeles v. Mendez,

(2017) (“The operative question

in excessive force cases is whether the totality of the circumstances justifie[s] a particular sort of

search or seizure.” (alteration in original) (internal quotation marks omitted)), we disagree. We

9 have made clear that the unlawfulness of an arrest does not make the force used to effectuate that

arrest per se unreasonable and excessive under the Fourth Amendment. See Zellner v. Summerlin,

, 377–78 (2d Cir. 2007) (affirming the district court’s rejection of plaintiff’s argument

“that the jury should have been instructed that if it found [plaintiff] had been arrested without

probable cause, it must find that any force used by defendants in the course of that arrest was

excessive and thus must return a verdict in his favor on the excessive force claim”); Jones v.

Parmley,

(2d Cir. 2006) (determining, in the qualified immunity context, that the

district court misapprehended the law in this Circuit to be that “any force employed by a police

officer would be unlawful so long as probable cause did not exist, even if the detainee had

threatened the officer with significant harm”); see also Beier v. City of Lewiston,

(9th Cir. 2004) (“Because the excessive force and false arrest factual inquiries are distinct,

establishing a lack of probable cause to make an arrest does not establish an excessive force claim,

and vice-versa.”); cf. Mendez,

(suggesting that “it would be going entirely too

far to suggest that any Fourth Amendment violation that is connected to a reasonable use of force

should create a valid excessive force claim”).

Aponte suggests that the lawfulness of Kanbur’s warrantless entry into his apartment bears

on the reasonableness of his belief that he was not legally required to go anywhere with the officers

who visited his home. However, the reasonableness of the use of force is examined from the

objective standpoint of the police officer. Thus, the arrestee’s subjective belief regarding the

situation (including the alleged need for a warrant) was simply irrelevant to the jury’s

determination as to whether the force (if any) they concluded Kanbur in fact used against Aponte

was excessive under the totality of the circumstances. See Graham v. Connor,

,

10 396, 399 (1989) (holding that the standard for determining whether excessive force was used in

making an arrest is an “objective reasonableness” test, which “must be judged from the perspective

of a reasonable officer on the scene” and take into account the totality of the circumstances); see

also Ehlers v. City of Rapid City,

(8th Cir. 2017) (“[A]n arrestee’s subjective

motive does not bear on how reasonable officers would have interpreted his behavior.”).

We do recognize that we have held that, under certain circumstances, “officers’ unlawful

entry into [a plaintiff’s] apartment, if borne out by proven facts, may affect the balancing of factors

bearing on whether the officers’ use of force was objectively unreasonable under the

circumstances.” Chamberlain ex rel. Chamberlain, 960 F.3d at 114; see also Mendez,

n.1 (declining to address whether “unreasonable police conduct prior to the use of force

that foreseeably created the need to use it” is a relevant factor in an excessive force analysis).

This case, however, is not such a situation. Aponte alleged that Kanbur entered his apartment and

choked him without any provocation. If that occurred, the force would have been excessive

regardless of the lawfulness of the entry. For his part, Kanbur denied choking Aponte at all and

thus did not attempt to justify the use of such force based upon any circumstances created by his

entry into Aponte’s apartment. In short, Aponte failed to articulate how the lawfulness of

Kanbur’s entry into the apartment would have been relevant in this particular case to the jury’s

resolution of these conflicting versions of events. See, e.g., Rasanen,

(“Whether

[the police officers] entered [plaintiff’s] home sooner than the warrant allowed has no bearing on

whether [defendant] acted unreasonably when he shot [plaintiff].”).

Accordingly, we discern no error in the district court’s instructions to the jury on the

excessive force claim with regard to the irrelevance of the lack of an arrest warrant.

11 * * *

We have considered all of Aponte’s remaining arguments and find them to be without

merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

12