Callahan v. The County of Suffolk
Filing
OPINION, vacating the judgment of the district court and remanding for a new trial, by BDP, RR, CFD, FILED.[2076496] [16-336]
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16‐336‐cv
Callahan v. Cty. of Suffolk
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In the
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United States Court of Appeals
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For the Second Circuit
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August Term, 2016
No. 16‐336‐cv
CHRISTOPHER CALLAHAN, INDIVIDUALLY AND AS ADMINISTRATOR
D.B.N. OF THE ESTATE OF KEVIN CALLAHAN, PATRICIA CALLAHAN,
INDIVIDUALLY,
Plaintiffs‐Appellants,
v.
POLICE OFFICER THOMAS WILSON, #5675, SERGEANT SCOTT GREENE,
#960,
Defendants‐Appellees,
THE COUNTY OF SUFFOLK, DETECTIVE RIVERA, DETECTIVE O’HARA,
JOHN DOE, SUFFOLK COUNTY POLICE OFFICERS #1‐10, RICHARD ROE,
SUFFOLK COUNTY EMPLOYEES #1‐10, POLICE OFFICER ROBERT KIRWAN,
#2815, POLICE OFFICER JAMES BOWEN, #1294, DETECTIVE SERGEANT
THOMAS M. GRONEMAN, DETECTIVE LIEUTENANT GERARD PELKOFSKY,
Defendants.
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The Clerk of Court is directed to amend the caption as set forth above.
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Appeal from the United States District Court
for the Eastern District of New York.
No. 12‐cv‐2973 — Leonard D. Wexler, Judge.
ARGUED: FEBRUARY 8, 2017
DECIDED: JULY 12, 2017
Before: PARKER, RAGGI, and DRONEY, Circuit Judges.
Appeal from a judgment of the United States District Court
for the Eastern District of New York (Wexler, J.) entered following a
jury verdict finding defendant police officer Thomas Wilson did not
use excessive force, under 42 U.S.C. § 1983 and the Fourth
Amendment, in fatally shooting Kevin Callahan. We conclude that
the jury instruction regarding the legal justification for the use of
deadly force by a police officer did not comply with our prior
decision in Rasanen v. Doe, 723 F.3d 325 (2d Cir. 2013). Accordingly,
we VACATE the judgment of the district court and REMAND for a
new trial.
Judge RAGGI concurs in part and dissents in part in a
separate opinion.
DONNA ALDEA (Alexander R. Klein,
on the brief), Barket Marion Epstein &
Kearon, LLP, Garden City, NY, for
Plaintiffs‐Appellants.
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BRIAN C. MITCHELL, Assistant
County Attorney, for Dennis M.
Brown, Suffolk County Attorney,
Hauppauge, NY, for Defendants‐
Appellees.
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DRONEY, Circuit Judge:
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On September 20, 2011, Kevin Callahan (“Callahan”) was shot
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and killed during a confrontation with Thomas Wilson, a police
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officer employed by Suffolk County, New York. Christopher and
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Patricia Callahan—the decedent’s brother and mother—filed this
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suit pursuant to 42 U.S.C. § 1983 against Wilson, other Suffolk
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County police officers and employees, and Suffolk County, alleging,
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among other causes of action, that Officer Wilson’s use of deadly
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force violated the Fourth Amendment prohibition against excessive
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force. The case proceeded to trial. Following the completion of
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evidence, the district court declined to give plaintiffs’ proposed jury
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instruction regarding the use of deadly force by a police officer that
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tracked the deadly force instruction we endorsed in Rasanen v. Doe,
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723 F.3d 325 (2d Cir. 2013). The jury returned a verdict in favor of
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Officer Wilson.
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We agree with plaintiffs that the district court’s jury charge
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concerning deadly force was inconsistent with Rasanen, and this
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error was not harmless. Accordingly, we VACATE the judgment of
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the district court and REMAND for a new trial.
BACKGROUND
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I.
Fatal Shooting of Kevin Callahan
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In the early afternoon of September 20, 2011, Suffolk County
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Police Officer Thomas Wilson responded to a radio call from a
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dispatcher reporting a situation involving a gun at the single‐family
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home of Patricia Callahan in Selden, New York. The radio
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transmission indicated that Patricia Callahan—who was not at her
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home—had been on the phone with her son, Kevin Callahan,1 who
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At the time, Kevin Callahan was twenty‐six years old.
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was at the home in Selden and had told his mother that another
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person with him had a gun.
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When Officer Wilson arrived at the Callahan home, two other
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Suffolk County officers, Dan Furey and Elisa McVeigh, had already
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arrived in response to the dispatch. Officers Wilson, Furey, and
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McVeigh approached the front entrance to the home, where the
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screen door was closed but the front door was open. The officers
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knocked on the screen door, announced their presence, and entered
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to investigate; McVeigh searched the upstairs while Furey and
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Wilson went downstairs. Officer Wilson repeatedly announced the
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officers’ presence and asked if anybody was in the home or needed
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help. The officers did not hear any response.
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Once they reached the bottom of the stairs, Officers Wilson
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and Furey split up—Wilson went to the left, and Furey went to the
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right. Officer Wilson testified that he saw a cleaver knife in the den
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area downstairs, which heightened his concern. Wilson checked one
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bedroom downstairs and then turned to another bedroom to his
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right. The door was partially open, and as Officer Wilson began to
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walk through it, he saw an individual through the partially opened
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door and called out, “police, I see you, . . . don’t move.” J.A. 270.
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According to Wilson, the person in the room “start[ed] to square off
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towards the door” and then forcefully attempted to close the
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bedroom door on Wilson. J.A. 271.
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Officer Wilson testified that he had been holding his semi‐
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automatic service pistol in his left hand down by his left leg, and
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when the door partially closed on him, he was pinned in the
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doorframe such that his hand holding the gun was on the other side
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of the door. Wilson testified that he then saw “some type of object”
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on the other side of the door, but his flashlight had been knocked
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out of his right hand and he had only a limited view, so he did not
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know what the object was. J.A. 275. He testified that the person on
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the other side of the door also made a sound like “some type of
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growl” that was “scar[]y.” J.A. 275. According to Wilson, he feared
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that he could be shot through the door or that his gun might be used
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against him, so he tried to free himself. He testified that, while he
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was trying to pull himself out of the door, he saw “a shadow coming
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around the door” and “a hand thrusting towards [him] with an
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object.” J.A. 309. Still unable to get out of the doorway, Officer
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Wilson fired his weapon while the gun was on the other side of the
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door. Wilson testified that after the initial gunshots, the door let up,
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which caused him to fall back. As he fell, he continued to fire, but
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now through the door.
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According to Wilson, he then stood up and ran toward Officer
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Furey, took cover, and reported over the radio: “shots fired, man
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behind the door, unknown weapon or object.” J.A. 311–12.
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Emergency services arrived with more police officers. Officers
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entered the downstairs bedroom and saw a person later identified as
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Kevin Callahan behind the bedroom door, sitting on his heels with
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his hands under his chest and his chest on his thighs. The officers
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asked to see his hands and did not receive a response, at which point
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they placed him in handcuffs and called medical services for him.
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Callahan died from his gunshot wounds.
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Forensic analysis and an autopsy later established that Officer
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Wilson fired a total of four shots, three of which struck Callahan.
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Two shots were fired from inside the bedroom, and the other two
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shots were fired through the door. The first shot fired inside the
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bedroom resulted in a contact wound to Callahan’s back, and the
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second shot from inside the bedroom entered Callahan’s back right
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shoulder and exited from his right abdomen. The shot fired through
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the door that hit Callahan caused a wound in his front upper
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abdomen/chest area. No weapon was found in the bedroom where
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Callahan was located.
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II.
Plaintiffs’ Excessive Force Claim
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In 2012, Christopher and Patricia Callahan filed suit in the
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United States District Court for the Eastern District of New York
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against Suffolk County, Officer Wilson, and other Suffolk County
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police officers and employees. The complaint asserted several state
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and federal claims in connection with Kevin Callahan’s death,
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including excessive force pursuant to 42 U.S.C. § 1983 and the
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Fourth Amendment to the U.S. Constitution.2
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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, 689 F.2d 324, 331 (2d Cir. 1982). Christopher
Callahan and Patricia Callahan were named as plaintiffs for additional claims not
relevant to this appeal.
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The excessive force claim proceeded to trial in July 2015.3 The
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jury returned a verdict in favor of Officer Wilson.4 Plaintiffs moved
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for judgment as a matter of law or a new trial pursuant to Federal
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Rules of Civil Procedure 50 and 59, which the district court denied.
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Judgment entered on January 29, 2016,5 and this appeal followed.
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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.
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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.
4
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.
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DISCUSSION
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On appeal, plaintiffs argue that a new trial is necessary
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because the jury was not properly instructed regarding the legal
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standards that govern the use of deadly force under these
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circumstances. We review jury instructions de novo, considering the
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challenged instruction in light of the charge as a whole. Warren v.
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Pataki, 823 F.3d 125, 137 (2d Cir. 2016). A jury instruction is
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erroneous if it “misleads the jury as to the correct legal standard or
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does not adequately inform the jury on the law.” Velez v. City of
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N.Y., 730 F.3d 128, 134 (2d Cir. 2013) (internal quotation marks
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omitted). An erroneous jury instruction requires a new trial unless
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the error is harmless. Id. We conclude that the use of force
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instructions here were inconsistent with our prior decision in
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Rasanen v. Doe, 723 F.3d 325 (2d Cir. 2013), and we cannot say that
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the error was harmless.
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I.
Instructional Error
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In Rasanen v. Doe, decided approximately two years before the
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trial here, we explained that the jury charge in a Section 1983 police
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shooting case alleging excessive use of force by a police officer in
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circumstances similar to those here must include a specific
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instruction regarding the legal justification for the use of deadly
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force. 723 F.3d at 333, 337. The instruction “must” convey “that the
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use of force highly likely to have deadly effects is unreasonable
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unless the officer had probable cause to believe that the suspect
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posed a significant threat of death or serious physical injury to the
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officer or to others.” Id. at 334. Failure to so instruct the jury
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constitutes plain error, as it “deprives the jury of adequate legal
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guidance to reach a rational decision on [the] case’s fundamental
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issue.” Id. at 334–35 (alteration and internal quotation marks
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omitted).
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Defendants‐Appellees suggest that Rasanen may no longer
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control in light of the Supreme Court’s decision in Plumhoff v.
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Rickard, 134 S. Ct. 2012 (2014). In Plumhoff, a dangerous police car
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chase of a fleeing suspect ended when police officers fired at the
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vehicle, killing the driver and a passenger. See id. at 2017–18. The
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Supreme Court concluded that the officers did not violate the Fourth
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Amendment’s prohibition against the use of excessive force. See id.
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at 2020–22. Plumhoff did not, however, involve any claim of
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instructional error, nor does the opinion alter the authorities on
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which Rasanen relied regarding the appropriate jury charge
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concerning the fatal shooting of suspects in the circumstances
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presented here. In particular, Plumhoff involved an application of
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Scott v. Harris, 550 U.S. 372 (2007), which was decided several years
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before Plumhoff and was discussed at length in Rasanen, see 723 F.3d
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at 333–34.
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Nor does the Supreme Court’s recent decision in County of Los
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Angeles v. Mendez, 137 S. Ct. 1539 (2017), undermine Rasanen’s
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holding as to the requirements for a jury charge in the type of
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excessive force case presented here. In Mendez, the Supreme Court
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rejected the Ninth Circuit’s “provocation rule” because that rule
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allowed a prior independent Fourth Amendment violation “to
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manufacture an excessive force claim where one would not
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otherwise exist.” Id. at 1546. In explaining its decision, the Court
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noted that “[t]he operative question in excessive force cases is
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‘whether the totality of the circumstances justifie[s] a particular sort
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of search or seizure.’” Id. (quoting Tennessee v. Garner, 471 U.S. 1, 8–
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9 (1985)). Importantly, Garner articulated the probable cause
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requirement for police shooting cases upon which this Court relied
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in Rasanen. See Rasanen, 723 F.3d at 333 (“In Garner, the Supreme
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Court explained that ‘[w]here the officer has probable cause to
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believe that the suspect poses a threat of serious physical harm,
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either to the officer or to others, it is not constitutionally
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unreasonable to prevent escape by using deadly force.’” (quoting
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Garner, 471 U.S. at 11)).
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Thus, as relevant here, we conclude that neither Plumhoff nor
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Mendez overrules Rasanen, which remains the controlling law of this
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Circuit. Defendants do not attempt to distinguish Rasanen on the
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facts, which is unsurprising given the similarity between the
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circumstances of the shooting in that case and the underlying facts
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here. Accordingly, we are bound to follow Rasanen in this case.6 See
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Shipping Corp. of India v. Jaldhi Overseas Pte Ltd., 585 F.3d 58, 67 (2d
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Cir. 2009) (“[A] panel of our Court is bound by the decisions of prior
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panels until such time as they are overruled either by an en banc
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panel of our Court or by the Supreme Court.” (internal quotation
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marks omitted)).
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., 837 F.3d 343, 349 (3d Cir. 2016); Noel v.
Artson, 641 F.3d 580, 587 (4th Cir. 2011); Penley v. Eslinger, 605 F.3d 843, 850 (11th
Cir. 2010); Acosta v. Hill, 504 F.3d 1323, 1324 (9th Cir. 2007).
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Applying Rasanen, we conclude that the jury charge regarding
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deadly force was erroneous. Plaintiffs’ proposed jury instructions
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included the specific language we endorsed in Rasanen and cited
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that decision. At the charge conference, plaintiffs’ counsel also
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orally requested that the jury charge include that language, arguing
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that “it’s not just a matter of semantics.”7 J.A. 566. The district court
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denied plaintiffs’ request, and instead instructed the jury in
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accordance with the general excessive force instructions that apply
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in situations involving non‐deadly force,8 with two modifications:
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the charge specifically referred to “deadly force” in two places, and
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it included language about an officer’s probable cause to believe that
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he or she faces a threat of death or serious injury. The exact
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language of the district court’s charge was as follows:
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.
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See, e.g., Terranova v. New York, 676 F.3d 305, 307, 309 (2d Cir. 2012); United States
v. Schatzle, 901 F.2d 252, 254–55 (2d Cir. 1990).
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A person has the right, under the United States
Constitution, to be free from the use of excessive 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.
In determining whether the police officer used
reasonable force, the actions of the police officer are
measured by the test of what a reasonable and prudent
police officer would have done under the same
circumstances confronting the police officer without
regard to the police officer’s underlying subjective
intent or motivation.
That means the evil intentions will not be considered
excessive force if the force used was in fact reasonable.
On the other hand, an officer’s good intentions will not
make the use of excessive force constitutional. The
reasonableness of a particular use of force must be
judged from the perspective of a reasonable officer on
the scene rather than with hindsight.
The nature of reasonableness must allow for the fact
that police officers are often forced to make split‐second
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judgments under circumstances that are tense,
uncertain and rapidly evolving about the amount of
force that is necessary in a particular situation.
This reasonableness inquiry is an objective one. The
question is whether the defendant police officer’s
actions w[ere] objectively reasonable in light of the facts
and circumstances confronting the police officer.
In determining whether the police officer used excessive
force, you may consider, one, the need for the
application of force; two, the relationship between the
need and the amount of force used; three, the threat
reasonably perceived by the police officer; and, four,
any efforts made to temper the severity of a forceful
response.
J.A. 605–06.
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Unlike in Rasanen, the charge here did refer to the probable
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cause necessary for an officer to reasonably use deadly force. But
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the instruction did not track the language from Rasanen, and we
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conclude that it is materially different from the language we
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approved there, even with the reference to “probable cause.” In
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Rasanen, we held that the jury “must” be instructed that the use of
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deadly force is “unreasonable unless the officer had probable cause to
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believe that the suspect posed a significant threat of death or serious
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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
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force . . . if” the officer has the requisite probable cause, J.A. 605
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(emphases added).
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Although these two formulations both refer to the probable
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cause requirement for the use of deadly force, they are not
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functionally equivalent. In Rasanen, we explicitly distinguished
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between the permissive “may/if” language and the restrictive
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“unless/only” language by reference to the New York State Police
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administrative manual before the jury in that case. See Rasanen, 723
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F.3d at 335–37. The relevant provision in that manual used nearly
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identical language to the charge here, stating: “A[n officer] may use
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deadly physical force against another person when they reasonably
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believe it to be necessary to defend the [officer] or another person
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from the use or imminent use of deadly physical force.” Id. at 336
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(internal quotation marks omitted). In concluding that this
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formulation did not correctly instruct the jury, we explained that the
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problem with the “may/if” language is that it “is not framed in
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exclusive and restrictive terms.” Id. at 337. That formulation was
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insufficient because it did not convey that an officer’s use of deadly
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physical force is reasonable, and therefore legally permissible, only
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in a specific circumstance.9 Id.
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Thus, the charge given to the jury here—which used the same
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permissive “may/if” language that we specifically rejected in
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Rasanen—was deficient. This error in the formulation of the specific
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deadly force instruction was compounded by the balance of the
12
charge regarding excessive force, which further weakened the
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).
9
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probable cause requirement. For example, the jury was also told
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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
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applies to non‐deadly uses of force.
6
These instructions were further “dilute[d],” Rasanen, 723 F.3d
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at 335, by suggesting that the jury could find that Officer Wilson’s
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shooting of Callahan complied with constitutional standards for
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reasons other than the fact that Wilson had probable cause to believe
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that Callahan posed a significant threat of death or serious injury to
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Wilson or others. Similar to Rasanen, the entirety of the charge here
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allowed the jury to conclude that “the shooting seemed necessary”
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because Wilson “acted reasonably under the circumstances,” even if
14
the jury concluded that Callahan did not pose that type of threat. Id.
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at 336 (emphasis omitted). Rasanen makes clear, however, that an
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officer’s use of deadly force in a police shooting case is not, as a
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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. Id. at 334. 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. Id. at 336.
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.
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II.
Harmlessness Analysis
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An erroneous jury instruction requires a new trial unless the
16
error was harmless. Uzoukwu v. City of N.Y., 805 F.3d 409, 418 (2d
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Cir. 2015). “An error is harmless only if the court is convinced that
2
the error did not influence the jury’s verdict.” Id. (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
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the jury answered the critical question and concluded that probable
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cause existed, or instead decided the case according to a more
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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,
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.
10
24
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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, 816 F.3d 214, 223 (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, 670 F.3d 127, 155 (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, 820 F.3d 561, 564 (2d Cir. 2016) (internal
25
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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
permitted to testify in the second phase of the proceedings as to plaintiffs’
municipal liability claims.
11
26
Case 16-336, Document 99-1, 07/12/2017, 2076496, Page27 of 30
1
testimony, which involves ensuring that the proffered testimony “is
2
relevant to the task at hand.” In re Pfizer Inc. Sec. Litig., 819 F.3d 642,
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
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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
4
N.Y., 414 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
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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, 491 F.3d 61, 78 (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, 677 F.3d 72, 79, 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
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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.
CONCLUSION
4
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, 723 F.3d at
8
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
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