This excessive force case tells us once again that the best way to appeal from an adverse jury verdict is to find a way to challenge the jury instructions. If something is wrong with the jury charge, then the trial may be fatally infected.
The case is Callahan v. County of Suffolk, decided on July 12, Callahan was shot during a confrontation with the police. What happened was the police were called to a single-family house; someone reported a situation involving a gun. Officer Wilson came upon a room with the door ajar. He saw that someone was inside the room. That person tried to shut the door. When the door partially shut, Wilson was holding his gun in his left hand. His hand holding the gun was on the other side of the door, inside the room. The officer was pinned on the door frame. The person inside the room made "some type of growl" that was "scary." Wilson thought he could be shot through the door or that the guy inside the room might take his gun. He saw a shadow coming around the door and "a hand thrusting toward him with an object." Wilson then fired his weapon, as he was unable to free himself. Those shots hit Callahan, who later died from the gunshot injuries. Callahan had no weapon.
Calllahan's family sued for wrongful death, but the jury found in favor of the police. This was a tough case for Callahan's estate. Callahan was unable to testify on his own behalf, and the officer was caught in a difficult position. It's easy to imagine a jury finding that the officer had no choice but to fire his gun in self-defense.
The problem was the jury charge. In 2013, the Second Circuit held in Rasamen v. Doe, 723 F.3d 333 (2d Cir. 2013), that the instruction in cases like this "must" convey "that the use of force highly likely to have deadly effects is unreasonable unless the officer had probable cause to believe that the suspect posed a significant threat of death or serious physical injury to the officer or to others." The charge in Callahan's case did use this language. But while Rasamen says the jury "must" be instructed that the use of deadly force is "unreasonable unless the officer had probable cause to believe that the suspect posed a significant threat of death or serious physical injury," in this case the charge said the officer "may use deadly force ... if" the officer has the requisite probable cause." The instructions were further tainted because they suggested the jury could find the officer's shooting "complied with constitutional standards for reasons other than the fact that Wilson had probable cause to believe that Callahan posed a significant threat of death or serious injury to Wilson or others." But Rasanen makes clear that deadly force is unreasonable unless the officer had probable cause to think the individual posed a significant threat of death or serious physical injury."
These errors may seem subtle, but the Second Circuit (Droney and Parker) thinks they warrant a new trial. Judge Raggi dissents, finding that that the jury charge complied with the directive in Rasamen as well as recent Supreme Court rulings that provide additional guidance on what it takes to win a deadly excessive force case.