Rasanen v. Brown

Filing

OPINION, Dissenting, by Judge Reena Raggi, FILED.[994568] [12-680]

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12-680-cv
Rasanen ex rel. Estate of Rasanen v. Brown

REENA RAGGI, Circuit Judge, dissenting:
A panel majority concludes that there must be a new trial of plaintiff’s Fourth
Amendment excessive force claim against New York State Trooper Daniel Brown because
the district court failed to give the following instruction: “[T]he use of force highly likely
to have deadly effects is unreasonable unless the officer had probable cause to believe that
the suspect posed a significant threat of death or serious physical injury to the officer or to
others.” Ante at [16]. The majority acknowledges that plaintiff never requested such a
charge at the initial charge conference or prior to a supplemental charge pertaining
specifically to deadly force. Nevertheless, it concludes that such an instruction is so clearly
mandated by Supreme Court and circuit precedent that its omission here was plain error. See
Fed. R. Civ. P. 51(d)(2). I disagree and, therefore, respectfully dissent.1
1.

Waiver
To begin, it is by no means clear to me that we should review the purported charging

omission even for plain error. Before the district court, plaintiff did not simply fail to object
to the jury charge on the ground identified by the panel majority. Rather, it endorsed the
district court’s excessive force charge as “evenly balanced in instructing as to the nature of
excessive force” and “sufficient” for that purpose. Trial Tr. 2313. As we have observed,

1

I do, however, join the majority in rejecting plaintiff’s contentions with regard to its
negligence claim, the timing of the search leading to the fatal shooting, and the weight of the
evidence. See ante at [6-7].

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“[s]uch endorsement” of a charge—even in a criminal case—“might well be deemed a true
waiver” of any subsequent challenge, “negating even plain error review.” United States v.
Hertular, 562 F.3d 433, 444 (2d Cir. 2009) (collecting cases).
2.

Plain Error
Even absent true waiver, however, I do not think this case manifests plain error. The

legal standard for plain error is well known:
[A]n appellate court may, in its discretion, correct an error not raised at trial
only where the appellant demonstrates that (1) there is an error; (2) the error
is clear or obvious, rather than subject to reasonable dispute; (3) the error
affected the appellant’s substantial rights, which in the ordinary case means it
affected the outcome of the district court proceedings; and (4) the error
seriously affects the fairness, integrity or public reputation of judicial
proceedings.
United States v. Marcus, 130 S. Ct. 2159, 2164 (2010) (alterations and internal quotation
marks omitted); see Fed. R. Civ. P. 51 Advisory Committee Note to 2003 Amendments
(noting that plain error language in Civil Rule 51(d)(2) is “borrowed from Criminal Rule 52”
in order to capture decisions at law recognizing that unpreserved charging errors warrant
appellate review only in “exceptional circumstances”). Plaintiff here fails to satisfy these
requirements.

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a.

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No Clear or Obvious Error
(1)

Garner and O’Bert Do Not Clearly Establish a Charging Requirement
for Deadly Force Cases

Plaintiff cannot satisfy the first two requirements of plain error because no controlling
precedent clearly mandates that a district court charge a jury that a precondition to the use
of “force highly likely to have deadly effects is . . . probable cause to believe that the suspect
posed a significant threat of death or serious physical injury to the officer or to others.” Ante
at [16]; see Henderson v. United States, 133 S. Ct. 1121, 1127 (2013) (recognizing plain
error to require “authoritative legal decision” on subject); United States v. Youngs, 687 F.3d
56, 59 (2d Cir. 2012) (“To be plain, an error of the district court must be obviously wrong
in light of existing law” (internal quotation marks omitted)).2
In concluding otherwise, the panel majority derives such a charging requirement from
the Supreme Court’s statement in Tennessee v. Garner, 471 U.S. 1 (1985), 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,” id. at 11. See ante at [14-15]. Earlier in Garner, the Supreme Court had
cast this conclusion more restrictively, stating that, in attempting to apprehend an “apparently

2

Our concern on plain error review is not whether a district court might ever reference
such probable cause—or the facts demonstrating such probable cause—in charging a jury
considering an excessive force claim. Rather, we properly consider only whether such a
charge is mandated by clearly established law.
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unarmed suspected felon,” deadly force “may not be used unless it is necessary to prevent
the escape and 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.” 471 U.S. at 3. We echoed
the latter formulation when referencing Garner in O’Bert ex rel. Estate of O’Bert v. Vargo,
331 F.3d 29 (2d Cir. 2003). There, we stated: “It 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.” Id. at 36.
To the extent such language might be construed to establish a “precondition” for the
use of deadly force, the Supreme Court has since ruled to the contrary in Scott v. Harris, 550
U.S. 372 (2007). “Garner did not establish a magical on/off switch that triggers rigid
preconditions whenever an officer’s actions constitute ‘deadly force.’” Id. at 382. Scott
counseled that “[w]hether or not [an officer’s] actions constitute[] application of ‘deadly
force,’ all that matters is whether [his] actions were reasonable.” Id. (emphasis added)
(disclaiming existence of “easy-to-apply legal test in the Fourth Amendment context,” and
concluding that, in any given case, court must “slosh . . . through the factbound morass of
‘reasonableness’”). Following Scott, two of our sister circuits have rejected challenges to
jury charges in deadly force cases that relied only on “the general rubric of reasonableness.”
Noel v. Artson, 641 F.3d 580, 587 (4th Cir. 2011); see Acosta v. Hill, 504 F.3d 1323, 1324
(9th Cir. 2007) (concluding that requirement of “deadly force instruction” in addition to
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“excessive force instruction based on the Fourth Amendment’s reasonableness standard” was
“explicitly contradict[ed]” by and “clearly irreconcilable with” Scott (internal quotation
marks omitted)). In reaching a different conclusion here, the majority creates an unwarranted
circuit split.
Further undermining the suggestion that Garner and O’Bert clearly established a
charging requirement for excessive force cases is the fact that neither case references
probable cause in discussing how juries should be instructed to consider Fourth Amendment
challenges to the use of deadly force. Indeed, Garner arose in the context of a bench trial.
See 471 U.S. at 5. At issue was the constitutionality of a policy that allowed police to use
deadly force to prevent the escape of any felony suspect. See id. The Supreme Court ruled
that policy unconstitutional on its face, and because the only proffered justification for the
particular application of deadly force was to prevent escape, the Court’s decision of law left
no question of fact to be tried. See id. at 21. At issue in O’Bert was the denial of summary
judgment to a defendant who invoked qualified immunity to prevent his case from going
before a jury. In affirming the denial, this court did not suggest that the officer’s version of
events, in which he professed himself to be confronting resistance from an armed suspect,
raised any probable cause issue for trial. Rather, trial was necessary because the plaintiff
disputed the officer’s account, and “[o]n plaintiff’s version of the facts, in which [the officer]
shot to kill O’Bert while knowing that O’Bert was unarmed, it is obvious that no reasonable

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officer would have believed that the use of deadly force was necessary.” O’Bert ex rel.
Estate of O’Bert v. Vargo, 331 F.3d at 40.
In context, then, the references to probable cause in Garner and O’Bert seem directed
more at courts than at juries, providing guidance as to which excessive force cases can be
decided as a matter of law and which require plenary trial. In other circumstances where the
Supreme Court has identified burdens of production and persuasion that inform a district
court’s identification of cases that should proceed to trial, we have observed that a jury “does
not need to be lectured on the concepts that guide a judge in determining whether a case
should go to the jury.” Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 118 (2d Cir. 2000)
(concluding that juries considering employment discrimination claims should not be charged
by reference to McDonnell Douglas framework). The same reasoning applied here further
prevents us from identifying any clearly established and, therefore, plain charging error in
this case.
Indeed, that conclusion is only reinforced by precedent generally cautioning against
the practice of using decisional language to charge juries in the absence of clear indications
that a reviewing court so intends. See Renz v. Grey Adver., Inc., 135 F.3d 217, 223 (2d Cir.
1997) (observing that juries can be misled when trial judges import into jury charges
language employed by appellate courts to guide judges); accord Gordon v. N.Y.C. Bd. of
Educ., 232 F.3d at 118; see also 9C Charles Alan Wright & Arthur R. Miller, Federal
Practice & Procedure § 2556 (3d ed. 2008) (stating that it “is not helpful” to juries for trial
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courts “to take quotations from the opinions of appellate courts, never intended to be used
as instructions to juries, and [to] make these a part of the charge”). This caution is
particularly warranted with respect to a concept such as probable cause for at least two
reasons. First, a jury “acts only as a fact-finder,” Gordon v. N.Y.C. Bd. of Educ., 232 F.3d
at 118, and once any disputed facts are resolved, probable cause is a question of law, see
Walczyk v. Rio, 496 F.3d 139, 157 (2d Cir. 2007). Thus, even where a question of probable
cause is relevant to a jury’s resolution of a civil claim—and not simply a gateway for
identifying cases that warrant trial—a district court may well decide not to present it to the
jury but to ask only that the jury decide the existence of those facts that would establish
probable cause. See Walczyk v. Rio, 496 F.3d at 157 (collecting cases); cf. Lore v. City of
Syracuse, 670 F.3d 127, 162 (2d Cir. 2012) (identifying error in district court’s “having the
jury decide the ultimate legal question” of qualified immunity “[i]n light of its factual
findings”). Second, the charge that the majority purports to derive from Garner and
O’Bert—i.e., that deadly force to effectuate an arrest is impermissible “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”—risks confusing juries as to the burden of proof,
which in excessive force cases rests only with the plaintiff. See Nimely v. City of New York,
414 F.3d 381, 390 (2d Cir. 2005); Davis v. Rodriguez, 364 F.3d 424, 431 (2d Cir. 2004); see
also Miller v. Taylor, 877 F.2d 469, 470 (6th Cir. 1989) (rejecting claim that burden of proof

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shifts to defendant in deadly force cases); Edwards v. City of Philadelphia, 860 F.2d 568, 572
(3d Cir. 1988) (same).3
In this case, as in O’Bert, there was no question that Rasanen’s excessive force claim
had to proceed to the jury. Brown claimed that he shot Rasanen while struggling to regain
control of his own gun after Rasanen had lunged at the officer and Brown felt his gun pointed
against him. Such a scenario plainly demonstrated “probable cause to believe that the
suspect pose[d] a threat of serious physical harm.” Tennessee v. Garner, 471 U.S. at 11; see
generally Florida v. Harris, 133 S. Ct. 1050, 1055 (2013) (describing probable cause as
“practical,” “common-sensical,” “all-things considered” standard for assessing probabilities
in particular factual context); Illinois v. Gates, 462 U.S. 213, 231–32, 238 (1983)
(recognizing probable cause as “fluid” standard that does not demand “hard certainties” but
only the sort of “fair probability” on which “reasonable and prudent men, not legal
technicians, act”). Plaintiff never contended otherwise. Instead, it maintained that forensic
evidence and inconsistencies in witnesses’ accounts showed that Brown had concocted the
gun-struggle story and, in fact, had unnecessarily shot and killed an unarmed man. If the jury
were to accept plaintiff’s version, then “no reasonable officer would have believed that the

3

On this appeal, plaintiff does not challenge the district court’s charging it with the
burden of proof on excessive force. See Appellant’s Br. 2 (arguing that trial evidence “far
surpassed [plaintiff]’s burden of proof”).
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use of deadly force was necessary.” O’Bert ex rel. Estate of O’Bert v. Vargo, 331 F.3d at
441.
The district court properly focused the jury on this determinative factual dispute.
First, the court correctly charged the general Fourth Amendment principle that “[w]hether
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.” Trial Tr. 2507, 2566.
But then the trial court told the jury that it “must determine” what “actually occurred,”
specifically, “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.” Id. at 2508, 2567–68. This disjunctive statement
of the parties’ positions was sufficient to ensure that, if the jury returned a verdict for Brown,
it did so consistent with the Fourth Amendment standard of reasonableness discussed in
Garner and Scott. Indeed, as previously observed, plaintiff’s counsel professed this charge
to be “evenly balanced” and “sufficient” to instruct the jury on the “nature” and “definition
of excessive force under Section 1983 and the Fourth Amendment.” Id. at 2313.
In nevertheless insisting that Garner and O’Bert support a finding of plain error here,
the majority attempts to cabin Scott to its facts. It submits that even if Scott, a case where
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deadly force was administered by a motor vehicle, does not require a “probable cause”
instruction in all deadly force cases, such an instruction is still required when the agent of
deadly force is a firearm. See ante at [15-16]. The majority cannot, however, claim that
Scott itself makes such a conclusion plain. Indeed, Scott’s emphasis on the “particular
situation” in which “a particular type” of deadly force was used in Garner precludes lumping
all shooting cases together. The shooting of a fleeing suspect in the back as he tried to run
away from the police, as in Garner, is hardly the same “particular situation” as the shooting
of a suspect who lunges toward the officer and turns his gun against him. This distinction
signals caution in the application of “rigid preconditions” for determining reasonableness in
deadly force cases generally, even those involving shootings. Scott v. Harris, 550 U.S. at
382.
Indeed, far from distinguishing among deadly force cases, Scott instructs that a single
legal standard applies to all excessive force cases, deadly or otherwise: “Whether or not [an
officer’s] actions constitute[] application of ‘deadly force,’ all that matters is whether [his]
actions were reasonable.” Id. This is a “factbound” determination that requires “‘balanc[ing]
the nature and quality of the intrusion on the individual’s Fourth Amendment interests
against the importance of the governmental interests alleged to justify the intrusion.’” Id.
(quoting United States v. Place, 462 U.S. 696, 703 (1983)).
(2)

Terranova Does Not Clearly Establish a Charging Requirement for
Deadly Force Shooting Cases

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The majority maintains that, even if Scott does not plainly establish the need to charge
a probable cause precondition for the use of deadly force in police shooting cases, our own
precedent, specifically Terranova v. New York, 676 F.3d 305 (2d Cir. 2012), does. See ante
at [24] (stating that “whatever doubts Scott might have raised about the necessity and
appropriateness of a Garner/O’Bert charge in the context of a deadly shooting were put to
rest by Terranova”). It is no mean feat for the majority to reach such a conclusion from
Terranova, a case that rejected an argument that a district court had erred when, after Scott,
it refused to supplement its jury charge on the objective reasonableness standard of the
Fourth Amendment with a requested instruction as to Garner’s preconditions for the use of
deadly force. See Terranova v. New York, 676 F.3d at 308–09. The majority nevertheless
derives a requirement to charge a probable cause precondition in deadly force shooting cases
from the fact that Terranova, like Scott, involved vehicles, and that this court therein stated:
“We therefore conclude that, absent evidence of the use of force highly likely to have deadly
effects, as in Garner, a jury instruction regarding justifications for the use of deadly force is
inappropriate, and the usual instructions regarding the use of excessive force are adequate.”
Id. at 309. The majority explains that the phrase “absent evidence of the use of force highly
likely to have deadly effects” is “a strong negative pregnant,” ante at [16]—apparently so
strong as to establish as the controlling law in this circuit that
in situations (such as those present in Garner, O’Bert, and the case before us)
where there is official use of force highly likely to have deadly effects, a jury
instruction regarding justifications for the use of deadly force is required, and
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the usual (less specific) instructions regarding the use of excessive force are
not adequate. In such circumstances, the jury must be instructed consistent
with Garner and O’Bert, that the use of force highly likely to have deadly
effects is unreasonable unless the officer had probable cause to believe that the
suspect posed a significant threat of death or serious physical injury to the
officer or to others.
Id. (emphasis in original). The conclusion does not bear close scrutiny.
First, as courts have long recognized, “negative pregnants” are hardly reliable
indicators of either law or fact. See Brooks v. Kyler, 204 F.3d 102, 108 (3d Cir. 2000)
(“[D]rawing instruction from Supreme Court passages through the use of the negative
pregnant is risky and unsatisfactory.”); United States v. Pilot Petroleum Assocs., Inc., 122
F.R.D. 422, 423 n.1 (E.D.N.Y. 1988) (McLaughlin, J.) (observing that “vice . . . known as
the negative pregnant” has been “source of judicial irritation [since] before Columbus
discovered America,” and citing to authority from reign of Henry VI); see also Cool v.
United States, 409 U.S. 100, 108 (1972) (Rehnquist, J., joined by Burger, C.J., and
Blackmun, J., dissenting) (criticizing reversal on ground that instruction contained negative
pregnant as “smack[ing] more of scholastic jurisprudence” than of “commonsense” appellate
review). That alone is reason not to recognize a negative pregnant as the source of
established law supporting a finding of plain error.
Second, what Terranova stated in the sentence at issue was that, in the circumstances
of that case, absent “force highly likely to have deadly effects,” a special instruction on
justification for deadly force was “inappropriate.” 676 F.3d at 309. At best, the attached

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negative pregnant leaves open a possibility that, in other circumstances, where the use of
force is highly likely to have deadly effects, such a justification instruction might be
appropriate. But see Capitol Records, Inc. v. Naxos of Am., Inc., 372 F.3d 471, 480 (2d Cir.
2004) (noting “logical fallacy of assuming that the inverse of a proposition is true” (citing
Raymond J. McCall, Basic Logic 125–26 (2d ed. 1952)). In any event, there is a very long
distance in the law between what may be appropriate as a matter of judicial charging
discretion and what is constitutionally required—a distance too long, I think, to allow for the
identification of a plain charging error here.
Third, even if Terranova’s negative pregnant could be stretched to the point of
establishing a charging requirement for excessive force shooting cases, such a
pronouncement would be dictum, as it was unnecessary to decide the case at hand. See
Baraket v. Holder, 632 F.3d 56, 59 (2d Cir. 2011) (stating that what “distinguishes holding
from dictum” is “whether resolution of the question is necessary for the decision of the case”
(citing Seminole Tribe v. Florida, 517 U.S. 44, 67 (1996)); see also Cohens v. Virginia,
19 U.S. 264, 399–400 (1821) (Marshall, C.J.) (contrasting “question actually before the
Court,” which is “investigated with care, and considered in its full extent,” with other cited,
but “seldom completely investigated,” principles). Such dictum cannot establish law and,

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therefore, does not support a finding of plain error. See, e.g., United States v. Whren,
111 F.3d 956, 960–61 (D.C. Cir. 1997).4
In sum, Garner, O’Bert, Scott, and Terranova do not make it clear and obvious that
juries in all excessive force shooting cases must be charged that there is a probable cause
precondition to the use of deadly force. Thus, the district court’s asserted failure to give such
a charge in this case cannot be deemed plain error.
b.

Effect on Substantial Rights

The third element of plain error, an adverse effect on a party’s substantial rights,
generally requires a reasonable probability that the error affected the outcome of the
proceeding. See United States v. Marcus, 130 S. Ct. at 2164. Plaintiff cannot make this
showing because the excessive force claim here turned on a dispute of fact: Brown claimed
that he shot Rasanen in the course of a struggle, while plaintiff claimed that the struggle story
was concocted. Plaintiff never suggested that, even if there had been a struggle, it would
have been unreasonable for Brown to have shot Rasanen. See Trial Tr. 2470 (arguing on
rebuttal summation that Brown invented “false story” about struggle because, otherwise,
there would have been “no good reason” to have used deadly force). Because a suspect’s

4

Indeed, further undermining the suggestion that Terranova can be construed to
“establish” a different Garner rule for shooting cases is its own reliance on a shooting case,
Penley v. Eslinger, 605 F.3d 843 (11th Cir. 2010), for the conclusion that none of the Garner
“‘conditions are prerequisites to the lawful application of deadly force,’” Terranova v. New
York, 676 F.3d at 309 (quoting Penley v. Eslinger, 605 F.3d at 850).
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decision to run directly at an armed officer in close quarters undoubtedly demonstrates
probable cause for a reasonable officer to believe that the suspect posed a significant threat
of death or serious physical injury to the officer or others, plaintiff cannot show that the
omission of a Garner-derived deadly force charge in this case had any effect on the outcome
of the trial.
In concluding otherwise, the majority points to the district court’s instruction telling
the jury to “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.” Id. at 2509, 2567–68. The majority hypothesizes that the
word “including” might have misled the jury into thinking that the existence of a struggle for
the gun was simply one factor to consider in its deliberations, and not the sole justification
advanced for Brown’s use of deadly force. I disagree. The point of the quoted language was
to instruct the jury that their ultimate determination of reasonableness required them to
consider all facts and circumstances. See Scott v. Harris, 550 U.S. at 383 (referencing
“factbound” nature of reasonableness inquiry). The district court had already made clear to
the jury that, in deciding what “actually occurred,” the parties were disputing two possible
scenarios. Thus, the jury had to “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.” Id. at 2508, 2567–68.
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When the “including” reference is placed in the context of a charge that thus ascribed a
specific justification argument to Brown that satisfied Garner, see Crigger v. Fahnestock &
Co., 443 F.3d 230, 235–36 (2d Cir. 2006), I think it clear that any Garner charging omission
was necessarily harmless.
Nor am I persuaded to reach a different conclusion from the majority’s suggestion that
the challenged charge afforded the jury “not two options, but three.” Ante at [20]. The
majority highlights sections of the charge instructing that the reasonableness of the use of
deadly force “must be judged from the perspective of a reasonable police officer on the scene
rather than the 20/20 vision of hindsight,” Trial Tr. 2508, 2551, and that reasonableness
allows for the fact that officers must often 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,” id. at 2509; see id. at 2551. The majority
submits that when the disjunctive scenario instruction is viewed together with these, the jury
could find
(a) that the shooting was unnecessary, and therefore . . . excessive . . . ; (b) that
the shooting was necessary—i.e. that it took place in the context of Rasanen’s
trying to turn Brown’s gun against him; or (c) that the shooting seemed
necessary—i.e. that Rasanen was not trying to turn Brown’s gun against him,
but that Trooper Brown, making split-second decisions without the benefit of
hindsight, nonetheless acted reasonably under the circumstances.
Ante at [20] (emphasis in original). The majority concludes that the “fatal defect is that the
jury did not know, because it was not told, that it could properly place the shooting in this

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last category only if it found that the Garner/O’Bert requirements (dealing with fear of
serious physical harm) were also met.” Id. (emphasis in original). I cannot agree.
There is no plausible view of the record that would allow the jury to reach either the
second or third posited conclusion without finding that Brown reasonably believed he was
engaged in a struggle for control of his gun. In the second scenario, Brown’s belief would
have been correct; the third scenario admits the possibility of reasonable mistake. That
difference is irrelevant to the probable cause requirement urged by the majority. See Texas
v. Brown, 460 U.S. 730, 742 (1983) (explaining that probable cause does not demand that
officer’s good-faith belief “be correct or more likely true than false”); see also Penley v.
Eslinger, 605 F.3d 843, 853 (11th Cir. 2010) (affirming judgment for officers on claim that
they used excessive force by shooting student waving toy gun).
The majority further submits that, even if the jury found that Rasanen actually tried
to gain control over Brown’s gun, a jury could conclude that the shooting was excessive
because “[o]ne can imagine a scenario in which the suspect is so small and weak, and the
officer so large and powerful, that even the suspect’s attempt to seize the officer’s gun would
not justify the officer in slaying the suspect.” Ante at [20 n.7] The majority does well to
characterize this scenario as “extremely unlikely.” Id. A discharged bullet’s homicidal
potential does not, after all, depend on the physical size of the person pulling the trigger. In
any event, I think that the majority here conflates the questions of probable cause and
reasonableness. See generally Davis v. Little, 851 F.2d 605, 607–08 (2d Cir. 1988)
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(distinguishing concepts). If the jury found, as its verdict suggests it did, that it was
objectively reasonable for Brown to think that Rasanen had engaged him in a struggle in
which the control of his firearm was at stake, then any difference in size between the two
men would not be enough for plaintiff to show that a “reasonable and prudent” officer in
such a struggle could not have thought that there was at least a “fair probability” that he
faced a serious threat of physical harm. Illinois v. Gates, 462 U.S. at 231–32, 238. Whether
other circumstances might nevertheless permit a jury to conclude that the use of deadly force
was excessive even in the face of such a probable threat depends on a balancing of the
competing individual and government interests that inform reasonableness. See Scott v.
Harris, 550 U.S. at 383–84. That balancing is not our concern here. The evidence, viewed
in the light most favorable to the jury verdict, was sufficient to support a finding of
reasonableness. To the extent we consider only whether the district court’s failure to
supplement its reasonableness charge with a probable cause instruction affected the outcome
of the case, I am satisfied by a jury verdict that necessarily found facts satisfying probable
cause that there was no prejudice.5

5

Insofar as plaintiff’s counsel submitted a post-verdict affidavit recounting jurors’
purported misunderstanding as to excessive force in their deliberations, plaintiff expressly
disavows reliance on these alleged conversations on appeal, a course compelled by Fed. R.
Evid. 606(b) (precluding inquiry into jury deliberations).
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Fairness, Integrity, and Public Reputation of Judicial Proceedings

Because I identify no clear or obvious error in the district court’s failure to give a
Garner-based deadly force instruction, and because I, in any event, identify no prejudice to
plaintiff therefrom, I necessarily conclude that the fairness, integrity, or public reputation of
judicial proceedings would not be called into question by allowing the challenged judgment
to stand.
In sum, because plaintiff fails to satisfy any of the requirements for plain error, I
respectfully dissent from the majority decision to vacate judgment and order retrial in this
case.

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