It really ends with the jury. When the verdict comes in and the losing side vows to appeal, those efforts usually fail. Appellate courts do not like to upset jury verdicts unless something went horribly wrong at trial. It is not enough to say you had better evidence than the losing side, as the jury is allowed to believe what it wants. The best way to challenge an adverse verdict on appeal is by attacking the jury instructions. The trial judge has no discretion to issue bad instructions. That was the strategy in this appeal.
The case is Hill v. Quigley, a summary order issued on September 5. This was a wrongful death trial. The decedent's mother brought the case. When the police tried to arrest Tyjuan Hill during a prostitution sting operation, Hill ran away and the officers tackled him, causing a struggle. Quigley was able to handcuff one of Hill's wrists, but not the other. Quigley said (the jury must have believed) that Hill pulled out a handgun and pointed it at the police. Quigley shot Hill in the back of the head. Hill lost the case, hence this appeal.
Most appellate judges used to sit as trial judges, so they appreciate the jury process and recognize that only the jury may resolve conflicting accounts. That's why most appeals from adverse verdicts fail. We tell the jury they are the ultimate factfinders. But the trial judge can mishandle the trial by making bad evidentiary rulings or issuing a foul jury charge. Hill's lawyer on appeal knows this, so he focused on the jury charge dealing with excessive force. The police are allowed to use excessive force if they reasonably perceive they or someone else is facing a significant threat of death or serious physical injury. As it happens, the instruction was problematic, allowing plaintiff's appellate lawyer to invoke Dancy v. McGinley, 843 F.3d 93 (2d Cir. 2016), which said it was prejudicial error for the judge in that excessive force case to tell the jury that "to impose liability, [the jury] was required to find that Williams ‘acted intentionally or recklessly’ rather than ‘merely negligent[ly]’ in performing the acts alleged.” That instruction was confusing "because a plaintiff alleging excessive force need not prove that the officer 'intended the results of his actions or consciously disregarded their consequences.'” (I helped brief the appeal in Dancy).
The instruction in this case was similar to the bad instruction in Dancy. But Hill loses the appeal because the bad instruction was "harmless error." The Second Circuit (Hall, Livingston and Restaini [on loan from the Court of International Trade) says "In Dancy, the instructional error was not harmless because the police officer’s lawyer suggested at trial that the broken jaw was unintentional, placing intent at issue. Here, intent was not at issue at trial. The defense theory was that the use of lethal force was justified—not that the shooting was accidental. Quigley described the shooting as an intentional act. Thus, to the extent the District Court failed clearly to convey that Quigley could be held liable even if he unintentionally caused Tyjuan’s death, that error is harmless." See how hard it is to win the appeal from an adverse jury verdict?
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