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Callahan v. Wilson

United States Court of Appeals, Second Circuit

July 12, 2017

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

         Appeal from the United States District Court for the Eastern District of New York. No. 12-cv-2973 - Leonard D. Wexler, Judge.

         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.

          Donna Aldea (Alexander R. Klein, on the brief), Barket Marion Epstein & Kearon, LLP, Garden City, NY, for Plaintiffs-Appellants.

          Brian C. Mitchell, Assistant County Attorney, for Dennis M. Brown, Suffolk County Attorney, Hauppauge, NY, for Defendants- Appellees.

          Before: Parker, Raggi, and Droney, Circuit Judges.

          Droney, Circuit Judge

         On 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.

         We 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.


         I. Fatal Shooting of Kevin Callahan

         In the 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, [1] who was at the home in Selden and had told his mother that another person with him had a gun.

         When 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.

         Once 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. J.A. 271.

         Officer 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 "scar[]y." 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.

         According 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.

         Forensic 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 located.

         II. Plaintiffs' Excessive Force Claim

         In 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.[2]

         The excessive force claim proceeded to trial in July 2015.[3] The jury returned a verdict in favor of Officer Wilson.[4] 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, [5] and this appeal followed.


         On 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.

         I. Instructional Error

         In 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.

         Nor 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. at 11)).

         Thus, 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.[6] 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)).

         Applying 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."[7] 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, [8] with two modifications: the charge specifically referred to "deadly force" in two places, and it included language ...

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