Good luck challenging an adverse excessive force verdict on appeal

A recent Second Circuit ruling shows how difficult it is to appeal from an adverse jury verdict, especially in claims alleging that the police used excessive force.

The case is Carvajal v. Mihalek, a summary order issued on December 21. This case went to trial, and the jury ruled against Carvajal, who said that the police violated the Fourth Amendment in shooting at him when they entered an apartment to effect a search warrant. The standard governing excessive force claims says the police can use deadly force if they have probable cause to suspect that the suspect poses a threat of serious harm. With that test in mind, here is how the Court of Appeals ((McLaughlin, Calabresi and Raggi) sees the evidence:

Before entering the apartment where they found the Carvajal brothers, Mihalek and Rizza had learned from official records and a confidential informant with direct knowledge that Joseph Carvajal, who lived in or used the apartment to be searched, had three convictions for violent crimes committed with deadly weapons, and was reputed to carry a firearm at all times. Before the shooting, plaintiff and his brother Joseph failed to admit officers who knocked on the door of the apartment, identified themselves as police, and stated that they were in possession of a search warrant. The officers then used a battering ram to gain entry into the apartment, whereupon the brothers ignored the directive, “Police, get down,” and started to move to an adjoining room. At that point, defendant Mihalek saw that plaintiff was holding a firearm and, believing he intended to shoot, Mihalek fired once at Robert Carvajal, striking him, before plaintiff moved out of Mihalek’s view. Rizza heard the gunshot, saw a white muzzle flash, and heard someone shouting “shots fired,” which led him to believe that the Carvajals had opened fire on the officers. Plaintiff then moved quickly toward Rizza and squared his shoulders. Believing that plaintiff was about to shoot, Rizza fired his weapon and felled Carvajal.

I am sure that Carvajal disagrees with this set of facts, but the Court of Appeals has to view the evidence the way that a jury would. That's why it is so hard to override a jury verdict in a fact-intensive case. On this record, the police officer had the right to fire his gun at plaintiff. Carvajal argues on appeal that the jury cannot credit the police officer's testimony that Carvajal was holding a firearm because that testimony was not corroborated. This argument may sound nice to non-lawyers, but it will never fly in the Court of Appeals. Adverse testimony does not have to be corroborated for a jury to credit that testimony. In any event, the Court of Appeals thinks that testimony in fact might have been corroborated. So this appeal fails.