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Rasanen v. Doe

United States Court of Appeals, Second Circuit

July 19, 2013

Leroy J. RASANEN, As administrator of the estate of John C. Rasanen, deceased, Plaintiff-Appellant
John Doe, Rhonda Roe, said names being fictitious and intended to represent all police officers taking part in the occurrence that resulted in decedent's death, James W. Dewar, John W. O'Brien, Keith M. Skala, Tyler R. Finn, Tammy M. Mickoliger, Rodney C. Polite, Alan T. Brock, Michael Etherton, David H. Verne, Scott G. Dibble, Robert A. Buell, Paul C. Antonovich, Timothy C. Pidgeon, Bartosz J. Chilicki, Michael A. Pellegrino, Defendants, Daniel BROWN Defendant-Appellee.

Argued: February 28, 2013

Appeal from a Decision and Order of the United States District Court for the Eastern District of New York (Spatt, J.) denying plaintiff's motion for a new trial pursuant to Federal Rule of Civil Procedure 59(a). In the underlying action, plaintiff alleged, pursuant to 42 U.S.C. § 1983, that defendant, a New York State Police trooper, used excessive force in violation of the Fourth Amendment. At the end of a jury trial, the jury found for defendant. Plaintiff moved for a new trial based, among other reasons, on alleged flaws in the jury instructions; the district court denied the motion.

HARRY H. KUTNER JR., Esq., Law Offices of Harry H. Kutner Jr., Mineola, N.Y., for Plaintiff-Appellant.

WON S. SHIN, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, Cecelia C. Chang, Deputy Solicitor General, of counsel) for Eric T. Schneiderman, Attorney General of the State of New York, New York, N.Y., for Defendant-Appellee.

Before: CALABRESI, Senior Circuit Judge, POOLER and RAGGI, Circuit Judges.

CALABRESI, Circuit Judge:

Plaintiff-Appellant Leroy J. Rasanen is the father and estate administrator of John C. Rasanen, who was shot and killed by Defendant-Appellee Daniel Brown, a New York State Police trooper, during a (warranted) search of John Rasanen's home. Plaintiff began this action against Brown and others in May 2004. Plaintiff's September 2004 amended complaint alleged one cause of action under 42 U.S.C. § 1983 and another for negligence. Plaintiff's § 1983 claim asserted that the fatal shooting of John Rasanen constituted excessive force; his negligence claim alleged, in the alternative, that the shooting, as well as the planning and execution of the search during which the shooting occurred, was negligent.

A jury trial in the matter started on April 5, 2011. The district court had granted summary judgment in March 2009 on the excessive force claim to all defendants except Brown and Michael Etherton, who was with Brown at the time of the shooting. At trial, plaintiff voluntarily dismissed the excessive force claim against Etherton, and the court dismissed plaintiff's negligence claims as a matter of law. There was no evidence, the court reasoned, that any alleged negligence in planning the search was causally connected with the shooting of John Rasanen, nor was there any evidence that the shooting was not intentional. Thus, by the time the jury began its deliberations on April 27, 2011, the only cause of action remaining was the excessive force claim against Brown.

On May 6, 2011, after more than seven days of deliberation, the jury returned a unanimous verdict in favor of Defendant Brown. Soon thereafter, plaintiff moved for a new trial under Federal Rule of Civil Procedure 59, alleging, inter alia, flaws in the jury instructions. The district court denied that motion in a Decision and Order dated January 23, 2012. This appeal followed.

For reasons given below, we VACATE the judgment of the district court and REMAND for a new trial.


Early in the morning of May 17, 2002, a mobile response team of the New York State Police searched the Suffolk County, New York residence of John Rasanen. A warrant authorized the team to look for cocaine, marijuana, drug paraphernalia, illicit proceeds, and other contraband. The team consisted of Trooper Daniel Brown; his assigned partner, Michael Etherton; and six other state troopers. The team had previously been told that Rasanen had threatened police officers, and that he was armed, dangerous, and unpredictable. The warrant allowed the team to enter Rasanen's residence between 6 a.m. and 9 p.m. A Crime Scene Attendance Log indicates that the first members of the team entered the home at 5:53 a.m.

After entering the residence, the troopers fanned out, two by two, to secure the building. Trooper Brown, followed by Trooper Etherton, went downstairs. Brown, who carried a halogen flashlight in his left hand and a 9-mm. pistol in his right, kicked open the door to a small bedroom, where he found Rasanen with a friend, Angela Chinnici. Although members of the response team had been told that Rasanen was armed and dangerous, that morning he was in fact unarmed, and from the waist up naked.

Brown was heavily-armored. He wore a military helmet, a face shield, an armored vest, combat gloves and combat boots. He was larger than Rasanen by three inches and more than sixty pounds. Moments after Brown entered the bedroom, he fired a single shot into Rasanen's chest. Rasanen died within minutes.

At trial, the two surviving eye-witnesses, Brown and Chinnici, recounted what led to this shooting.

Brown testified that upon his first step or two into the bedroom, Rasanen charged at him. As he held Rasanen back with his flashlight, Brown said, he felt his own gun being turned against him. Brown was unsure whether Rasanen was using his hands or another part of his body to turn the gun. When he felt the gun moving, Brown dropped the flashlight, gained control of the gun, and fired. This happened, Brown said, "all at once"— "in a matter of seconds." Brown insisted that he shot Rasanen out of fear for his own life.

Angela Chinnici, for her part, testified that she was asleep next to Rasanen in his bed when she was awakened by knocking on the front door upstairs. She then heard a loud bang, followed by footsteps and cries of, "Police, get down!" Chinnici woke Rasnanen and asked what was going on. Rasanen cursed, leapt out of bed, and closed the bedroom door. He then paced from side to side in the space between the door and the foot of the bed. As Chinnici heard the police coming down the stairs yelling "police" and "get down, " she saw Rasanen drop something behind the television stand. Rasanen then resumed pacing, some two to three feet from the bedroom door. The room, Chinnici said, was dark and small.

Chinnici then saw the door open and Trooper Brown enter. Brown commanded Rasanen and Chinnici to get down. Chinnici complied; Rasanen apparently did not. Chinnici heard a loud pop, and saw a cloud of smoke. She did not see Rasanen lunge at Brown or struggle with Brown for the trooper's gun.

The jury began its deliberations on April 27, 2011. At one point, the jury asked the district court to define the terms "negligence" and "deadly excessive force." The district court declined to define negligence because the negligence claim had been dismissed, and the court refused to reinstate it. The district court defined "deadly excessive force" by repeating its original charge on excessive force and adding the word "deadly" at various places in the charge (the relevant portions of the charge are excerpted later in this opinion). The jury additionally informed the court that it was considering a section of the New York State Police administrative manual entitled "Use of Deadly Physical Force." The court directed the jury to certain other provisions of the manual, which it said were also relevant to the jury's deliberations.

On May 5, 2011, the jury returned a unanimous verdict in favor of Trooper Brown on the excessive force claim. The district court denied plaintiff's Rule 59 motion for a new trial on January 23, 2012, and plaintiff timely appealed.

Before us, plaintiff-appellant argues that the district court erred (1) by failing to instruct the jury with regard to the limited justifications for use of deadly force established by the Supreme Court in Tennessee v. Garner, 471 U.S. 1, 3, 11 (1985), and adopted by our court in O'Bert ex rel. O'Bert v. Vargo, 331 F.3d 29, 36 (2d Cir. 2003); (2) by declining to submit plaintiff's negligence claims to the jury; and (3) by excluding from the jury's consideration the fact that Brown and others entered Rasanen's residence a few minutes sooner than the search warrant allowed (a per se constitutional violation, plaintiff contends). Additionally, appellant contends that the jury's verdict ran against the weight of the evidence.


I. Appellant's contentions with regard to his negligence claim, the timing of the search, and the weight of the evidence are unavailing.

With respect to the negligence claim, we find nothing in the record that contravenes the district court's conclusion that there was no evidence either that the planning of the search contributed to Rasanen's death, or that Brown shot Rasanen unintentionally. Appellant asserts that the district court was wrong to rely on Brown's testimony that the shooting was intentional. But appellant failed to produce any evidence to the contrary, and we see no reason, therefore, to revisit the district court's dismissal of the negligence claim.

With respect to the timing of the search, we agree with the district court that the matter of premature entry is immaterial to the question of excessive force. Whether Brown and his fellows entered Rasanen's home sooner than the warrant allowed has no bearing on whether Brown acted unreasonably when he shot Rasanen.

Finally, with regard to the sufficiency of the evidence, a district court's denial of a motion for new trial on weight-of-the-evidence grounds is not reviewable on appeal. Espinal v. Goord, 558 F.3d 119, 131 (2d Cir. 2009); Stonewall Ins. Co. v. Asbestos Claims Mgmt. Corp., 73 F.3d 1178, 1199 (2d Cir. 1995), modified on other grounds, 85 F.3d 49 (2d Cir. 1996).

Appellant's only potentially viable claim on appeal, then, is his claim that the jury instructions were erroneous. To this claim we now turn.


A. The Jury Instructions

The district court instructed the jury with regard to excessive deadly force as follows:[1]

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 ...

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