Terranova v. State of New York

09-5025-cv (L) Terranova v. State of New York 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2011 4 5 (Argued: October 14, 2011 6 Docket Nos. Decided: April 16, 2012) 09-5025-cv(L), 10-3008-cv(CON) 7 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 8 9 10 11 JOHN TERRANOVA, as the Administrator of the Estate of NICHOLAS TERRANOVA, 12 DEVIN BALDWIN and LAMAR OLIVER, Plaintiff-Appellant, 13 Consolidated-Plaintiffs-Appellants, 14 15 16 17 18 19 20 21 22 v. STATE OF NEW YORK and KEVIN QUINTERO, New York State Trooper, Defendants, RAFAEL TORRES, New York State Trooper and AARON RILEY, New York State Trooper, Defendants-Appellees.* 23 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 24 B e f o r e: 25 26 WINTER, LYNCH, and CARNEY, Circuit Judges. Appeal from a judgment entered in the United States District Court for the Southern District of New York (Cathy * The Clerk of the Court is instructed to conform the caption in accordance herewith. 1 1 Seibel, Judge), following a jury verdict finding that 2 defendants-appellees did not use unreasonable force in 3 executing a traffic stop. 4 district court�s decision not to give a jury instruction on the 5 use of deadly force. We affirm. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Appellants principally challenge the MICHAEL J. GRACE, Grace & Grace, Yorktown Heights, New York, for Plaintiffs-Appellants. OREN L. ZEVE, Managing-Administrative Assistant Solicitor General (Barbara D. Underwood, Solicitor General, Benjamin Gutman, Deputy Solicitor General, and Richard O. Jackson, Assistant Solicitor General, of counsel, on the brief), for Eric T. Schneiderman, Attorney General for the State of New York, for DefendantsAppellees. WINTER, Circuit Judge: 21 John Terranova, Devin Baldwin, and Lamar Oliver appeal 22 from a jury verdict finding New York State Troopers Raphael 23 Torres and Aaron Riley (collectively �Troopers�) not liable for 24 injuries that appellants, and, with respect to Terranova, the 25 mortal injuries that appellant�s decedent Nicholas Terranova, 26 sustained during a traffic stop. 27 Troopers violated appellants� Fourth Amendment right to be free 28 from unreasonable seizure through the use of excessive force. 29 We hold that the district court did not err by declining to 30 instruct the jury regarding the use of �deadly force� in 31 addition to a correct instruction on excessive force. 32 Affirmed. 2 Appellants claim that the 1 2 BACKGROUND On the night of June 2, 2003, Riley was stationed on the 3 Sprain Brook Parkway and received reports that motorcyclists 4 were speeding and driving erratically while traveling north on 5 the parkway. 6 south, Riley enlisted the help of Torres to assist in stopping 7 the motorcyclists if they returned southbound. 8 position south of Riley, who positioned himself to alert Torres 9 to stop traffic if the motorcyclists passed. Speculating that the motorcyclists might return Torres took a The Troopers 10 testified that this plan was conceived to avoid a potentially 11 dangerous high-speed chase. 12 At approximately 11:30 p.m., several motorcycles 13 approached Riley's position and slowed to approximately 60 mph 14 when they saw him on the side of the road. 15 appellants and a friend, Kyle Figueroa. 16 appellants increased their speed to greater than 80 mph. 17 Figueroa was going significantly faster. 18 55 mph. 19 This group included After passing Riley, The speed limit was When the motorcyclists passed, Riley radioed to Torres to 20 stop traffic, and Riley followed the motorcyclists. Torres 21 chose a portion of the parkway with a long straightaway where 22 vehicles could see his lights and stop safely. 23 in a serpentine motion to slow traffic and brought it to a 24 stop, causing several vehicles to clog the right and center 25 lanes. He then drove In the left lane, Figueroa, who had reached the 3 1 roadblock faster than appellants, had also come to a stop. 2 According to Torres, none of the vehicles had any difficulty 3 stopping. 4 As appellants approached the traffic stoppage, they saw 5 the brake lights of the stopped vehicles and the emergency 6 lights on Torres's cruiser. 7 slowed to between 30 and 35 mph as he approached Figueroa in 8 the left lane. 9 Figueroa, a BMW that had been stopped in the center lane Baldwin, who was in front, had When Baldwin was approximately 15-20 feet from 10 abruptly moved into the left lane, and Baldwin collided with 11 that vehicle. 12 the median to avoid the collision and came to stop on the 13 grass. 14 median to avoid the accident and jumped off his motorcycle. 15 Oliver's unmanned motorcycle struck Terranova in the chest, and 16 Terranova died from the injuries he sustained. 17 Terranova, who was behind Baldwin, drove into Oliver, who was behind Terranova, also drove into the Both Figueroa and the driver of the BMW testified that 18 Torres directed the BMW to enter the left lane, but Torres 19 stated that the BMW changed lanes of its own accord. 20 Appellants then brought this action seeking damages under 21 42 U.S.C. § 1983 for violation of their Fourth Amendment 22 rights, claiming that they were seized without justification 23 and that the Troopers used excessive force. 24 to trial.1 1 The case proceeded The State of New York and Trooper Quintero were dismissed as defendants prior to trial and are not a part of this appeal. See Terranova v. New York, 144 F. App�x 143, 147 (2d Cir. 2005) (upholding dismissal of claims against the State of New York); Terranova v. Torres, 603 F. Supp. 2d 630, 631 n.2 (S.D.N.Y. 2009) (granting summary judgment in favor of Trooper Quintero). 4 1 During trial, the district court originally proposed to 2 give instructions to the jury that included a separate �deadly 3 force� charge with regard to the factors outlined by the 4 Supreme Court in Tennessee v. Garner, 471 U.S. 1 (1985), as 5 preconditions to the lawful use of deadly force. 6 district court ultimately removed that instruction, concluding 7 that, under Scott v. Harris, 550 U.S. 372 (2007), it was 8 inappropriate to instruct the jury on the Garner factors in 9 cases with dissimilar facts. However, the The resulting jury instructions 10 informed the jurors that they were to decide whether the force 11 used was objectively reasonable and specified the various 12 factors that might affect that determination, such as the 13 severity of the violation, the threat posed by the appellants, 14 whether the appellants attempted to evade the police, and what 15 other options, if any, were available to the Troopers. 16 The jury rendered a verdict in favor of the Troopers. 17 Appellants then filed motions for judgment notwithstanding the 18 verdict and for a new trial, which were denied. 19 followed. 20 21 This appeal DISCUSSION We review jury instructions de novo with regard to whether 22 the jury was misled or inadequately informed about the 23 applicable law. 24 (2d Cir. 2010). Henry v. Wyeth Pharm., Inc., 616 F.3d 134, 146 25 5 1 Claims that the police used excessive force are �judged 2 under the Fourth Amendment�s �objective reasonableness� 3 standard.� 4 (quoting Graham v. Connor, 490 U.S. 386, 388 (1989)). 5 requires a �balancing of the . . . intrusion on �the 6 individual�s Fourth Amendment interests� against the 7 countervailing governmental interest at stake,� Graham, 490 8 U.S. at 396 (quoting Garner, 471 U.S. at 8), and involves the 9 consideration of factors such as �the severity of the crime at Brosseau v. Haugen, 543 U.S. 194, 197 (2004) This 10 issue, whether the suspect poses an immediate threat to the 11 safety of the officers or others, and whether he is actively 12 resisting arrest or attempting to evade arrest by flight.� 13 Id. Appellants make no claim that the district court's 14 instructions failed to convey the proper standards as to 15 objectively reasonable force. 16 Garner established constitutional preconditions for the use of 17 deadly force and that, by failing to instruct the jury on the 18 Garner factors, the court left the jurors inadequately informed 19 as to the law. 20 However, appellants argue that We disagree. In Garner, a police officer shot a fleeing suspect. 471 21 U.S. at 3-4. The suspect, who was �young, slight, and 22 unarmed,� had broken into a house, and when the police arrived, 23 the suspect attempted to flee. 24 suspect, who was climbing a fence, would successfully escape, 25 the officer shot him in the back of the head. Id. at 4, 21. 6 Fearing that the Id. at 4. In 1 concluding that the officer�s use of force was unreasonable, 2 the Court stated: 3 a weapon or there is probable cause to believe that he has 4 committed a crime involving the infliction or threatened 5 infliction of serious physical harm, deadly force may be used 6 if necessary to prevent escape, and if, where feasible, some 7 warning has been given.� 8 9 �[I]f the suspect threatens the officer with Id. at 11-12. Following Garner, some courts held that �the Supreme Court . . . established a special rule concerning deadly force,� 10 which could require a separate jury instruction in any case in 11 which police conduct created a substantial risk of death or 12 serious bodily injury. 13 F.3d 659, 661, 663 (9th Cir. 1997), modified, Smith v. City of 14 Helmet, 394 F.3d 689, 705 (9th Cir. 2005) (holding that �deadly 15 force� means all force that creates a substantial risk of death 16 of serious bodily injury rather than force that is reasonably 17 likely to cause death); see also Adams v. St. Lucie Cnty. 18 Sheriff�s Dep�t, 962 F.2d 1563, 1570-71 (11th Cir. 1992) 19 (applying Garner to a vehicular chase on summary judgment). 20 However, the Court's more recent decision in Scott, involving 21 facts similar to those in the present matter, rejected the view 22 that Garner created a special rule, separate from the usual 23 reasonableness analysis, that applies to any form of police 24 conduct that might possibly result in death or serious injury. Vera Cruz v. City of Escondido, 139 25 7 1 In Scott, police officers initiated a high-speed chase in 2 an attempt to stop the plaintiff, who was driving recklessly 3 and at high speeds. 4 ultimately terminated when a police officer ran into the rear 5 of the plaintiff�s vehicle, causing an accident that resulted 6 in serious injuries to the plaintiff. 7 here, the plaintiff argued that the Garner factors should 8 determine whether the use of deadly force was appropriate. 9 at 381-82. 550 U.S. at 379-80. The chase was Id. at 375. There, as Id. However, the Court rejected that approach, stating, 10 �Garner was simply an application of the Fourth Amendment�s 11 �reasonableness� test . . . to the use of a particular type of 12 force in a particular situation.� 13 490 U.S. at 388). 14 the factors that might have justified the shooting in Garner 15 was not needed in cases involving police actions of less 16 coercion. 17 apply in cases involving accidents that occur when police 18 attempt to stop a vehicle. 19 said about the factors that might have justified shooting the 20 suspect in that case, such �preconditions� have scant 21 applicability to this case, which has vastly different facts. 22 �Garner had nothing to do with one car striking another or even 23 with car chases in general.�� (quoting Adams, 962 F.2d 1563, 24 1577 (11th Cir. 1992) (Edmondson, J., dissenting)).2 Id. at 382 (citing Graham, The Court made clear that consideration of More specifically, it held that Garner does not See id. at 383 (�Whatever Garner 2 The Court reached this conclusion after acknowledging that the officer�s actions placed the plaintiff �at risk of serious injury or death.� Id. at 374. 8 1 We therefore conclude that, absent evidence of the use of 2 force highly likely to have deadly effects, as in Garner, a 3 jury instruction regarding justifications for the use of deadly 4 force is inappropriate, and the usual instructions regarding 5 the use of excessive force are adequate. 6 v. Eslinger, 605 F.3d 843, 850 (11th Cir. 2010) (�[N]one of 7 these [Garner] conditions are prerequisites to the lawful 8 application of deadly force.�); Pasco ex rel. Pasco v. 9 Knoblauch, 566 F.3d 572, 579-80 (5th Cir. 2009) (finding no Id.; see also Penley 10 specific Garner application to car chases and that the inquiry 11 depends instead on what was objectively reasonable); Acosta v. 12 Hill, 504 F.3d 1323, 1324 (9th Cir. 2007) (holding that after 13 Scott, a separate jury charge specifically on the use of deadly 14 force is unnecessary). 15 The present matter is easily distinguishable from Garner 16 given the type of force used -- a traffic stop as opposed to 17 firing a gun aimed at a person. 18 some risks, it is designed only to apprehend suspects and, 19 here, prevent injury to other motorists as well as appellants. 20 It is not designed to achieve those goals by seriously injuring 21 the suspects. 22 While a traffic stop poses The appropriate inquiry is, therefore, whether the force 23 used was objectively reasonable. 24 instruction neither misled the jury nor left them uninformed as 25 to the applicable law. 9 The absence of a deadly force 1 2 CONCLUSION We have considered appellants� additional claims and find 3 them to be without merit. 4 For the foregoing reasons, we affirm. 10