If you lose the trial, and you really must take up an appeal, consider challenging the trial court's jury instructions. If the jury doesn't have the right instructions, it could not have made the correct decision, right? Yes, but not this case.
The case is Terranova v. State of New York, decided on April 16. This case arises from a roadblock gone awry. The police set up the roadblock on the Sprain Brook Parkway in Westchester County because some motorcyclists were riding erratically. When three motorcyclists approached the roadblock, there was already a traffic tie-up. When a BMW in the center lane abruptly moved into another lane, it caused a chain reaction. One cyclist crashed into the vehicle. Another drove into the median. A third drove into the median to avoid an accident and jumped off his motorcycle, striking his chest on another motorcycle. He ultimately died from the chest injuries.
The case went to trial on a Fourth Amendment theory that the police had seized the cyclists without justification and had used excessive force. The lost at trial. The appeal argues that, although the trial court used the basic excessive force jury charge, it should have also instructed the jury on a "deadly force" charge that presumably would have made it easier for the plaintiffs to win. The Court of Appeals (Winter, Lynch and Carney) notes that, for a time, some courts interpreted Tennessee v. Garner, 471 U.S. 1 (1985), to mean that "the Supreme Court ... established a special rule concerning deadly force, which could require a separate jury instruction in which police conduct created a substantial risk of death or serious bodily injury." However, in Scott v. Harris, 550 U.S. 372 (2007), the Court rejected that interpretation.
So, the Second Circuit provides the operative rule: "absent evidence of the use of force highly likely to have deadly effects ..., a jury instruction regarding justifications for the use of deadly force is inappropriate, and the usual instructions regarding the use of excessive force are adequate." As this case involves a mere traffic stop and was not intended to seriously injure suspects, it doesn't apply here. No new trial for the plaintiffs.