Officer cannot appeal adverse excessive force verdict

The jury ruled for the plaintiff in this excessive force case against a Nassau County police officer. The officer then sought judgment as a matter of law (which would vacate the verdict) on qualified immunity grounds, arguing that "Officer Rogich is entitled to ... qualified immunity when his version of events is credited." The district court denied the motion and the officer took up an appeal before the court could even award damages. The appeal is dismissed because the officer is not allowed to pursue an appeal like this.

The case is Taylor v. Rogich, decided on March 30. Normally, you cannot appeal a district court ruling or verdict until all issues in the district court are resolved, including damages. An exception to that rule applies when the officer seeks qualified immunity, which shields him from suit if his actions were objectively reasonable. But even that exception has exceptions. You cannot take up an interlocutory appeal "to the extent that the denial [of qualified immunity] involves only a question of evidence sufficiency," i.e., the jury can see it my way and not the officer's way. That rule applies in the summary judgment world, and the Court of Appeals extends it to post-trial appeals under Rule 50.

The exception to the exception applies here. The officer's appeal is premature because he frames the issue as a factual dispute on the evidence that the jury was not entitled to (and did not) adopt. The Court of Appeals ruling does not tell us what happened in this case, but this comes from the district's post-trial ruling:

On September 26, 2009, Rogich, a member of the Bureau of Special Operations (BSO), participated in the arrest of the defendant.  Prior to the arrest, Rogich had been advised that plaintiff was wanted on a parole warrant and for questioning in connection with a homicide, and that he might be armed and had threatened his parole officer. Immediately prior to the arrest, a group of BSO officers, driving unmarked vehicles, surrounded plaintiff’s vehicle as he was leaving a residence in Hempstead, NY. Rogich and his partner were in a silver Jeep Grand Cherokee SUV which pulled in front of plaintiff’s vehicle when plaintiff had stopped at a stop sign. It was undisputed at trial that Rogich fired three shots at plaintiff. Each time, he aimed for “center mass,” meaning the plaintiff’s chest. All three struck plaintiff’s vehicle; one passed through the windshield and struck plaintiff in the stomach. The third shot fired lodged in the passenger door of plaintiff’s vehicle.

While "Plaintiff testified that while he was stopped at the stop sign, the defendant fired the first shot while still inside the SUV," the officer "testified he got out of the Jeep before firing his weapon. He further testified that, once he was in front of plaintiff’s car, the plaintiff had backed up and 'charged' toward him. As such, Rogich testified, he fired because he believed it was 'the only way I could stop the car from running me over.'” Each side had some corroborating witnesses, but that is the conflicting evidence that underscored the officer's appeal.