Pena, Marilyn v. Leombruni, Greg ( 1999 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-1435
Marilyn Pena, Administratrix of the Estate of
Hugo Pena, Deceased, and on her own behalf,
and Jeremy PENA, et al.,
Plaintiffs-Appellants,
v.
Greg Leombruni and Richard Meyers, individually
and in their official capacity as employees of
the Winnebago County Sheriff’s Department, and
County of Winnebago,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 95 C 50271--Philip G. Reinhard, Judge.
Argued October 29, 1999--Decided December 30, 1999
Before Posner, Chief Judge, and Flaum and Diane P.
Wood, Circuit Judges.
Posner, Chief Judge. This is a civil rights
suit, charging the use of excessive force by
police in violation of the Fourth Amendment,
Graham v. Connor, 490 U.S. 386, 395 (1989), held
applicable to the states through the due process
clause of the Fourteenth Amendment. The jury
brought in a verdict for the defendants; and
construed favorably to the verdict, the facts are
as follows. Leombruni, a deputy sheriff of
Winnebago County, Illinois, responded to a
dispatch that a man, later identified as the
plaintiffs’ decedent, Pena, was "acting crazy,"
was shoplifting, and was fighting with the shop’s
employees. Pena fled upon Leombruni’s arrival,
but later turned and (with his dog) confronted
Leombruni, who pepper sprayed the two of them and
told Pena that he was under arrest. Pena again
fled, but then stopped and picked up a chunk of
concrete and advanced toward Leombruni, who drew
his pistol and told him to put the chunk down.
Leombruni backpedaled but when Pena was within
five to ten feet of him shot and killed Pena.
The sheriff’s department instructs its officers
that they are not to use deadly force unless in
imminent danger of death or great bodily harm.
But it has issued no instructions with regard to
the use of force against people who appear to be
crazy, and this gap (if that is how it should be
regarded) is the principal basis of liability
advanced by the plaintiffs. They argue that
Leombruni’s shooting Pena was excessive given
Pena’s apparent irrationality, and that the
sheriff (another defendant) violated Pena’s
rights by failing to issue instructions on
dealing with such people.
The district judge granted the sheriff’s motion
for a directed verdict, and this was clearly
correct. A failure to instruct police officers
can, it is true, exhibit a deliberate
indifference to the danger that armed police can
pose to the constitutional rights of citizens and
if it does is actionable under 42 U.S.C. sec.
1983. E.g., City of Canton v. Harris, 489 U.S.
378, 388 (1989); Robles v. City of Fort Wayne,
113 F.3d 732, 735 (7th Cir. 1997); Burge v.
Parish of St. Tammany, 187 F.3d 452, 472 (5th
Cir. 1999). A clear case would be a failure to
instruct the police that they are not to use
deadly force except to prevent a killing, or the
infliction of other great bodily harm. City of
Canton v. Harris, supra, 489 U.S. at 390 n. 10.
But failing merely to instruct police on the
handling of dangerous people who appear to be
irrational cannot amount to deliberate
indifference, at least on the facts presented in
this case. The sheriff had announced a policy
that, in accordance with cases such as Tennessee
v. Garner, 471 U.S. 1, 3 (1985); Plakas v.
Drinski, 19 F.3d 1143, 1146 (7th Cir. 1994), and
Russo v. City of Cincinnati, 953 F.2d 1036, 1045
(6th Cir. 1992), the deputies were not to use
deadly force unless they (or other persons) were
threatened by death or great bodily harm, and
this policy covered the case of the crazy
assailant, giving him all the protection to which
constitutional law entitled him. Maybe despite
what we have just said it would be desirable to
take special measures to render such a person
harmless without killing or wounding him, Myers
v. Oklahoma County Board, 151 F.3d 1313, 1320
(10th Cir. 1998); Plakas v. Drinski, supra, 19
F.3d at 1150 n. 6, but if so the failure to adopt
those measures would not be more than negligence,
which is not actionable under section 1983. City
of Canton v. Harris, supra, 489 U.S. at 391-92;
Payne v. Churchich, 161 F.3d 1030, 1042 (7th Cir.
1998); Manarite v. City of Springfield, 957 F.2d
953, 959 (1st Cir. 1992); cf. Plakas v. Drinski,
supra, 19 F.3d at 1148; Myers v. Oklahoma County
Board, supra, 151 F.3d at 1318-19.
Circumstances can alter cases. If Winnebago
County had seen a rash of police killings of
crazy people and it was well understood that
these killings could have been avoided by the
adoption of measures that would adequately
protect the endangered police, then the failure
to take these measures might, we may assume
without having to decide, be found to manifest
deliberate indifference to the rights of such
people. Allen v. Muskogee, 119 F.3d 837, 845
(10th Cir. 1997); see also Myers v. Oklahoma
County Board, supra, 151 F.3d at 1318; Robles v.
City of Fort Wayne, supra, 113 F.3d at 736. But
the plaintiffs made no effort to establish the
premises of such an argument.
They have several complaints about the conduct
of the trial and foremost among these is the
trial judge’s refusal to permit the plaintiffs to
call as their expert witness a criminologist and
former Chicago police official, David Fogel. The
judge thought him incompetent to testify about
the use of excessive force against a crazy person
because he was not an expert on that rather
esoteric issue. Under the regime of Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993), we must give the district judge a
generous latitude in making such judgments.
General Electric Co. v. Joiner, 118 S. Ct. 512,
517 (1997); Kumho Tire Co. v. Carmichael, 119 S.
Ct. 1167, 1176 (1999); United States v. Romero,
189 F.3d 576, 584 (7th Cir. 1999); United States
v. Triplett, 195 F.3d 990, 998 (8th Cir. 1999).
But we have our doubts about the reason the judge
gave for refusing to let Fogel testify. In his
time with the Chicago Police Department Fogel had
investigated and made recommendations concerning
numerous complaints of excessive force lodged
against Chicago policemen. This experience
equipped him, one might have thought, to opine
responsibly on the proper handling of a person
who was behaving as Pena was. Cf. Kladis v.
Brezek, 823 F.2d 1014, 1019 (7th Cir. 1987); but
cf. Berry v. City of Detroit, 25 F.3d 1342, 1349-
50 (6th Cir. 1994). The question was not, as the
district judge believed, Pena’s actual mental
state. That was irrelevant to the reasonableness
of Leombruni’s action in shooting him--as would
be obvious had Leombruni been in danger of being
seriously injured not by Pena but by Pena’s dog.
Very little mentation is required for deadly
action. A rattlesnake is deadly but could not
form the mental state required for conviction of
murder. Whatever Pena’s mental problems
(apparently he was high on cocaine), they were
not such as to prevent him from beating
Leombruni’s brains out with a chunk of concrete.
Leoumbruni was entitled to defend himself whether
or not Pena, had he assaulted him, and been
prosecuted for the offense, would have been
acquitted on the ground of insanity. Larry
Alexander, "A Unified Excuse of Preemptive Self-
Protection," 74 Notre Dame L. Rev. 1475, 1476
(1999); cf. Palmquist v. Selvik, 111 F.3d 1332,
1340 (7th Cir. 1997).
The intended focus of Fogel’s testimony was not,
however, as the judge believed, Pena’s mental
state. It was whether Leombruni had acted
reasonably given the nature of the threat that
Pena posed (that is, menacing the officer with a
chunk of concrete). But expert evidence is
admissible only when it will "assist" the trier
of fact, Fed. R. Evid. 702; United States v.
Hall, 93 F.3d 1337, 1341-44 (7th Cir. 1996), and
the jury needed no help in deciding whether
Leombruni was acting reasonably. Leombruni’s
behavior was unambiguously dangerous; the
question whether the danger was sufficiently
lethal and imminent to justify the use of deadly
force was within lay competence.
It is unfortunate (or would have been, if there
had been a need for expert evidence and Fogel had
simply been unqualified to give it) that the
judge did not rule on the defendants’ motion in
limine to exclude Fogel until the day of trial.
The plaintiffs sought a continuance to enable
them to find another expert, but the judge denied
it. Had the judge ruled promptly on the motion to
exclude Fogel, the plaintiffs would not have
needed a continuance to seek out a substitute
expert witness. It is highly desirable that the
trial judge rule on motions in limine well before
trial so that the parties can shape their trial
preparations in light of his rulings without
having to make elaborate contingency plans.
Wilson v. Williams, 182 F.3d 562, 566 (7th Cir.
1999) (en banc); United States v. Mobley, 193
F.3d 492, 494 (7th Cir. 1999); 3 Moore’s Federal
Practice sec.sec. 16.74[3], 16.77[4] [d][i], [ii]
(3d ed. 1997). In some cases the failure to rule
promptly on motions in limine, unless the failure
were rectified by the grant of a continuance,
might conceivably be, or more precisely
precipitate, a reversible error (the denial of
the continuance). But not here. The plaintiffs
had been on notice for months that their expert
might be excluded, yet they did nothing to find a
back up and thus mitigate the harm to them should
he be excluded and a continuance denied. The more
fundamental point, however, is that even at this
late date they are unable to explain how an
expert witness could have helped the jury decide
the straightforward question whether Leombruni
acted reasonably in shooting Pena.
The plaintiffs’ most substantial objection to
the conduct of the trial, and the only other one
we need discuss, concerns the district court’s
instruction that "when an officer believes that a
suspect’s actions places him [the officer] . . .
in imminent danger of death or great bodily harm,
the officer can reasonably exercise the use of
deadly force." This is simply incorrect, because
the officer’s belief that he’s in danger must be
reasonable. E.g., Tennessee v. Garner, supra, 471
U.S. at 7; Deering v. Reich, 183 F.3d 645, 650
(7th Cir. 1999); Palmquist v. Selvik, supra, 111
F.3d at 1343; Jaffe v. Redmond, 51 F.3d 1346,
1353 (7th Cir. 1995), aff’d, 518 U.S. 1 (1996);
Abraham v. Raso, 183 F.3d 279, 289 (3d Cir.
1999); Nelson v. County of Wright, 162 F.3d 986,
990 (8th Cir. 1998); Sigman v. Town of Chapel
Hill, 161 F.3d 782, 786-87 (4th Cir. 1998). But
the plaintiffs’ lawyer failed to explain to the
judge what was wrong with the instruction,
instead merely tendering his own proposed
instructions. An objection to instructions is
forfeited by a failure to "stat[e] distinctly . .
. the grounds of the objection." Fed. R. Civ. P.
51. It is not enough to propose a correct
instruction. United States v. Linwood, 142 F.3d
418, 424 (7th Cir. 1998); Dawson v. New York Life
Ins. Co., 135 F.3d 1158, 1165 (7th Cir. 1998);
Smith v. Great American Restaurants, Inc., 969
F.2d 430, 436 (7th Cir. 1992). We add that the
incorrect instruction could not have made a
difference to the outcome, since there is no
doubt that Leombruni was reasonable to anticipate
that his concrete-wielding assailant posed a
potentially lethal danger.
Affirmed.