Christopher Callahan, Individually and as Administrator d.b.n. of the Estate of Kevin Callahan, Patricia Callahan, Individually, Plaintiffs-Appellants,
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.[*]
Argued: February 8, 2017
from the United States District Court for the Eastern
District of New York. No. 12-cv-2973 - Leonard D. Wexler,
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.
Aldea (Alexander R. Klein, on the brief), Barket Marion
Epstein & Kearon, LLP, Garden City, NY, for
C. Mitchell, Assistant County Attorney, for Dennis M. Brown,
Suffolk County Attorney, Hauppauge, NY, for Defendants-
Before: Parker, Raggi, and Droney, Circuit Judges.
Droney, Circuit Judge
September 20, 2011, Kevin Callahan ("Callahan") was
shot and killed during a confrontation with Thomas Wilson, a
police officer employed by Suffolk County, New York.
Christopher and Patricia Callahan-the decedent's brother
and mother-filed this suit pursuant to 42 U.S.C. § 1983
against Wilson, other Suffolk County police officers and
employees, and Suffolk County, alleging, among other causes
of action, that Officer Wilson's use of deadly force
violated the Fourth Amendment prohibition against excessive
force. The case proceeded to trial. Following the completion
of evidence, the district court declined to give
plaintiffs' proposed jury instruction regarding the use
of deadly force by a police officer that tracked the deadly
force instruction we endorsed in Rasanen v. Doe, 723
F.3d 325 (2d Cir. 2013). The jury returned a verdict in favor
of Officer Wilson.
agree with plaintiffs that the district court's jury
charge concerning deadly force was inconsistent with
Rasanen, and this error was not harmless.
Accordingly, we VACATE the judgment of the district court and
REMAND for a new trial.
Fatal Shooting of Kevin Callahan
early afternoon of September 20, 2011, Suffolk County Police
Officer Thomas Wilson responded to a radio call from a
dispatcher reporting a situation involving a gun at the
single-family home of Patricia Callahan in Selden, New York.
The radio transmission indicated that Patricia Callahan-who
was not at her home-had been on the phone with her son, Kevin
Callahan,  who was at the home in Selden and had told
his mother that another person with him had a gun.
Officer Wilson arrived at the Callahan home, two other
Suffolk County officers, Dan Furey and Elisa McVeigh, had
already arrived in response to the dispatch. Officers Wilson,
Furey, and McVeigh approached the front entrance to the home,
where the screen door was closed but the front door was open.
The officers knocked on the screen door, announced their
presence, and entered to investigate; McVeigh searched the
upstairs while Furey and Wilson went downstairs. Officer
Wilson repeatedly announced the officers' presence and
asked if anybody was in the home or needed help. The officers
did not hear any response.
they reached the bottom of the stairs, Officers Wilson and
Furey split up-Wilson went to the left, and Furey went to the
right. Officer Wilson testified that he saw a cleaver knife
in the den area downstairs, which heightened his concern.
Wilson checked one bedroom downstairs and then turned to
another bedroom to his right. The door was partially open,
and as Officer Wilson began to walk through it, he saw an
individual through the partially opened door and called out,
"police, I see you, . . . don't move." J.A.
270. According to Wilson, the person in the room
"start[ed] to square off towards the door" and then
forcefully attempted to close the bedroom door on Wilson.
Wilson testified that he had been holding his semi- automatic
service pistol in his left hand down by his left leg, and
when the door partially closed on him, he was pinned in the
doorframe such that his hand holding the gun was on the other
side of the door. Wilson testified that he then saw
"some type of object" on the other side of the
door, but his flashlight had been knocked out of his right
hand and he had only a limited view, so he did not know what
the object was. J.A. 275. He testified that the person on the
other side of the door also made a sound like "some type
of growl" that was "scary." J.A. 275.
According to Wilson, he feared that he could be shot through
the door or that his gun might be used against him, so he
tried to free himself. He testified that, while he was trying
to pull himself out of the door, he saw "a shadow coming
around the door" and "a hand thrusting towards
[him] with an object." J.A. 309. Still unable to get out
of the doorway, Officer Wilson fired his weapon while the gun
was on the other side of the door. Wilson testified that
after the initial gunshots, the door let up, which caused him
to fall back. As he fell, he continued to fire, but now
through the door.
to Wilson, he then stood up and ran toward Officer Furey,
took cover, and reported over the radio: "shots fired,
man behind the door, unknown weapon or object." J.A.
311-12. Emergency services arrived with more police officers.
Officers entered the downstairs bedroom and saw a person
later identified as Kevin Callahan behind the bedroom door,
sitting on his heels with his hands under his chest and his
chest on his thighs. The officers asked to see his hands and
did not receive a response, at which point they placed him in
handcuffs and called medical services for him. Callahan died
from his gunshot wounds.
analysis and an autopsy later established that Officer Wilson
fired a total of four shots, three of which struck Callahan.
Two shots were fired from inside the bedroom, and the other
two shots were fired through the door. The first shot fired
inside the bedroom resulted in a contact wound to
Callahan's back, and the second shot from inside the
bedroom entered Callahan's back right shoulder and exited
from his right abdomen. The shot fired through the door that
hit Callahan caused a wound in his front upper abdomen/chest
area. No weapon was found in the bedroom where Callahan was
Plaintiffs' Excessive Force Claim
2012, Christopher and Patricia Callahan filed suit in the
United States District Court for the Eastern District of New
York against Suffolk County, Officer Wilson, and other
Suffolk County police officers and employees. The complaint
asserted several state and federal claims in connection with
Kevin Callahan's death, including excessive force
pursuant to 42 U.S.C. § 1983 and the Fourth Amendment to
the U.S. Constitution.
excessive force claim proceeded to trial in July
2015. The jury returned a verdict in favor of
Officer Wilson. Plaintiffs moved for judgment as a matter
of law or a new trial pursuant to Federal Rules of Civil
Procedure 50 and 59, which the district court denied.
Judgment entered on January 29, 2016,  and this appeal
appeal, plaintiffs argue that a new trial is necessary
because the jury was not properly instructed regarding the
legal standards that govern the use of deadly force under
these circumstances. We review jury instructions de
novo, considering the challenged instruction in light of
the charge as a whole. Warren v. Pataki, 823 F.3d
125, 137 (2d Cir. 2016). A jury instruction is erroneous if
it "misleads the jury as to the correct legal standard
or does not adequately inform the jury on the law."
Velez v. City of N.Y., 730 F.3d 128, 134 (2d Cir.
2013) (internal quotation marks omitted). An erroneous jury
instruction requires a new trial unless the error is
harmless. Id. We conclude that the use of force
instructions here were inconsistent with our prior decision
in Rasanen v. Doe, 723 F.3d 325 (2d Cir. 2013), and
we cannot say that the error was harmless.
Rasanen v. Doe, decided approximately two years
before the trial here, we explained that the jury charge in a
Section 1983 police shooting case alleging excessive use of
force by a police officer in circumstances similar to those
here must include a specific instruction regarding the legal
justification for the use of deadly force. 723 F.3d at 333,
337. The instruction "must" convey "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. at 334. Failure to so instruct the jury
constitutes plain error, as it "deprives the jury of
adequate legal guidance to reach a rational decision on [the]
case's fundamental issue." Id. at 334-35
(alteration and internal quotation marks omitted).
Defendants-Appellees suggest that Rasanen may no
longer control in light of the Supreme Court's decision
in Plumhoff v. Rickard, 134 S.Ct. 2012 (2014). In
Plumhoff, a dangerous police car chase of a fleeing
suspect ended when police officers fired at the vehicle,
killing the driver and a passenger. See id. at
2017-18. The Supreme Court concluded that the officers did
not violate the Fourth Amendment's prohibition against
the use of excessive force. See id. at 2020-22.
Plumhoff did not, however, involve any claim of
instructional error, nor does the opinion alter the
authorities on which Rasanen relied regarding the
appropriate jury charge concerning the fatal shooting of
suspects in the circumstances presented here. In particular,
Plumhoff involved an application of Scott v.
Harris, 550 U.S. 372 (2007), which was decided several
years before Plumhoff and was discussed at length in
Rasanen, see 723 F.3d at 333-34.
does the Supreme Court's recent decision in County of
Los Angeles v. Mendez, 137 S.Ct. 1539 (2017), undermine
Rasanen's holding as to the requirements for a
jury charge in the type of excessive force case presented
here. In Mendez, the Supreme Court rejected the
Ninth Circuit's "provocation rule" because that
rule allowed a prior independent Fourth Amendment violation
"to manufacture an excessive force claim where one would
not otherwise exist." Id. at 1546. In
explaining its decision, the Court noted that "[t]he
operative question in excessive force cases is 'whether
the totality of the circumstances justifie[s] a particular
sort of search or seizure.'" Id. (quoting
Tennessee v. Garner, 471 U.S. 1, 8- 9 (1985)).
Importantly, Garner articulated the probable cause
requirement for police shooting cases upon which this Court
relied in Rasanen. See Rasanen, 723 F.3d at
333 ("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.'" (quoting Garner, 471 U.S.
as relevant here, we conclude that neither Plumhoff
nor Mendez overrules Rasanen, which remains
the controlling law of this Circuit. Defendants do not
attempt to distinguish Rasanen on the facts, which
is unsurprising given the similarity between the
circumstances of the shooting in that case and the underlying
facts here. Accordingly, we are bound to follow
Rasanen in this case. See Shipping Corp. of India
v. Jaldhi Overseas Pte Ltd., 585 F.3d 58, 67 (2d Cir.
2009) ("[A] panel of our Court is bound by the decisions
of prior panels until such time as they are overruled either
by an en banc panel of our Court or by the Supreme
Court." (internal quotation marks omitted)).
Rasanen, we conclude that the jury charge regarding
deadly force was erroneous. Plaintiffs' proposed jury
instructions included the specific language we endorsed in
Rasanen and cited that decision. At the charge
conference, plaintiffs' counsel also orally requested
that the jury charge include that language, arguing that
"it's not just a matter of
semantics." J.A. 566. The district court denied
plaintiffs' request, and instead instructed the jury in
accordance with the general excessive force instructions that
apply in situations involving non-deadly force,
with two modifications: the charge specifically referred to
"deadly force" in two places, and it included