Citing Flawed Jury Instructions, Second Circuit Vacates Decision Denying Plaintiff New Trial in Fatal Police Shooting Case

A recent Second Circuit decision provides guidance on the appropriate standard to be applied in cases involving deadly police force against a suspect.  The case is Rasanen v. Brown et al., 12-680-cv, 2013 WL 3766538 (July 19, 2013).

During a warranted search of John Rasanen’s home, defendant NYS trooper Brown shot and killed Rasanen.  The administrator of decedent’s estate sued under 42 U.S.C. § 1983, asserting that defendant used excessive force under the Fourth Amendment to the U.S. Constitution.

The jury found in Brown’s favor.  Plaintiff filed a motion for a new trial, alleging (among other things) flaws in the jury instructions, which the district court denied. The Second Circuit vacated that decision, and held that the jury instructions as to the use of deadly force were indeed incorrect as a matter of law.

The district court gave the following jury instructions regarding excessive deadly force (with amendments made by the court in response to the jury’s questions about the “meaning of excessive deadly force” italicized):

With respect to this claim of deadly excessive force, you are instructed that every person has the right not to be subjected to unreasonable or excessive deadly force in the course of a search by a law enforcement officer, even though such a search is otherwise made in accordance with the law.

In other words, even if there was a lawful search, the officer has no right to use … excessive deadly force. Whether 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.

Here, where the parties’ factual contentions are disputed, you must consider the question of what events actually occurred. You must 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.

You must determine what circumstances actually occurred that early morning in the basement bedroom where the incident occurred. The question before you is whether the actions of the defendant [Trooper] Daniel Brown, on May 17, 2002, was [sic] objectively reasonable.

The plaintiff said the actions were objectively unreasonable and has the burden of proof as to that.

What does that mean? It means what a reasonably prudent police officer would have done under similar circumstances in light of the facts and the situation confronting him on that occasion, without regard to his underlying intent or motivation. That means that evil intentions will not be excessive force, deadly excessive force, if the force was in fact reasonable.

On the other hand, an officer’s good intentions will not make deadly excessive force constitutional.

The reasonableness of a particular use of force must be—and deadly force—judged from the perspective of a reasonable police officer on the scene rather than the 20/20 vision of hindsight.

In answering these questions, namely, whether the deadly force used by defendant, Daniel Brown, was reasonable, you should 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, Daniel Brown.

In the course of his duty, a police officer, in making a search, as in this case, may use only reasonable force, not excessive force.

The concept of reasonableness in this regard makes allowance for the fact that police officers are often forced to 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.

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

Plaintiff argued that the district court erred by failing to charge the jury in accordance with the requirements established by the Supreme Court in Tennessee v. Garner, 471 U.S. 1 (1985) and adopted by the Second Circuit in O’Bert v. Vargo, 331 F.3d 29 (2003).

The Second Circuit adopted plaintiff’s, and rejected defendant’s, arguments:

[Defendant] argues that the district court was not required to instruct the jury with regard to the Garner/O’Bert factors, and that therefore the instruction contained no error at all, let alone plain error. We disagree. In a case involving use of force highly likely to have deadly effects, an instruction regarding justifications for the use of deadly force is required. The district court erred by failing to give one.

In Garner, the Supreme Court explained 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.”  Absent such a perceived threat, the use of deadly force is constitutionally unreasonable. We embraced this standard in O’Bert, a decision in which we held that “[i]t 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.”  Like the case before us, Garner and O’Bert both involved unarmed suspects who were shot to death by law enforcement officers. These two cases clearly established that (a) absent the recognized justifications, such shootings constitute excessive force, and (b) juries confronted with similar fact patterns must be instructed accordingly. …

[I]n the circumstances of this case—the close-range shooting of a suspect by a law enforcement officer—the district court was required to instruct the jury that it must find that this use of force was excessive “unless [the jury found that] the officer ha[d] probable cause to believe that the suspect pose[d] a significant threat of death or serious physical injury to the officer or others.” The district court did not give this charge, and—though it is a close question—we also conclude that it did not give the functional equivalent of this charge. Because the Garner/O’Bert standard governed the fundamental issue in the case—really the only issue in the case—the district court’s failure to instruct the jury on the basis of that standard constituted plain error.

The case was before Judges Calabresi, Pooler and Raggi; Judge Calabresi delivered the opinion, and Judge Raggi dissented in a separate opinion.

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