PENA v. LEOMBRUNI

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Docket Number

No. 99-1435

Attorney(S)

Rene Hernandez (argued), Belvidere, IL, for Plaintiffs-Appellants. Paul Logli, Office of the State's Attorney of Winnebago County, Rockford, IL, Sara M. Hohe (argued), Assistant State's Attorney, Civil Division, Rockford, IL, for Defendants-Appellees,

Judges

Richard Allen Posner

Acts

The Public Health And Welfare — Civil Rights — Generally — Civil Action For Deprivation Of Rights

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Smart Summary

Factual and Procedural Background

This case arises from a civil rights lawsuit alleging excessive force by police officers in violation of the Fourth Amendment, as applied to the states through the Fourteenth Amendment. The plaintiffs-appellants are the estate and family members of Hugo Pena, who was shot and killed by Deputy Sheriff Leombruni of the Winnebago County Sheriff's Department. The incident occurred after Pena was reported as "acting crazy," shoplifting, and fighting with store employees. Upon Leombruni’s arrival, Pena fled but later confronted the deputy with his dog. After being pepper sprayed and told he was under arrest, Pena fled again, stopped, picked up a chunk of concrete, and advanced toward Leombruni, who then shot and killed Pena. The plaintiffs argued that the shooting was excessive force given Pena’s apparent irrationality and that the sheriff’s department was liable for failing to issue specific instructions on handling mentally unstable individuals.

The district court granted a directed verdict for the sheriff, which the plaintiffs appealed. The Seventh Circuit reviewed the case, focusing on whether the failure to provide special instructions regarding mentally unstable individuals constituted deliberate indifference under 42 U.S.C. § 1983 and whether the use of deadly force was reasonable under the circumstances.

Legal Issues Presented

Whether the failure of the Winnebago County Sheriff's Department to issue specific instructions on handling mentally unstable or "crazy" individuals amounts to deliberate indifference and a violation of constitutional rights under 42 U.S.C. § 1983.
Whether Deputy Leombruni's use of deadly force against Pena was excessive and unconstitutional under the Fourth Amendment.
Whether the district court erred in excluding the plaintiffs' expert witness testimony concerning the reasonableness of the use of force.
Whether the district court's jury instruction regarding the officer's belief in imminent danger was legally correct and preserved for appeal.

Arguments of the Parties

Plaintiffs-Appellants' Arguments

The shooting of Pena was excessive force given his apparent irrationality and mental state.
The sheriff’s department was liable for failing to provide officers with instructions on handling mentally unstable individuals, which constituted deliberate indifference.
The district court erred by refusing to admit expert testimony from David Fogel, a criminologist and former police official, who would have testified on the reasonableness of Leombruni’s actions.
The jury instruction allowing deadly force when the officer "believes" he is in imminent danger was legally incorrect because the belief must be reasonable.

Defendants-Appellees' Arguments

The sheriff’s department had an existing policy consistent with constitutional law that deadly force is permitted only when officers face imminent danger of death or great bodily harm, which covers encounters with mentally unstable individuals.
The failure to issue special instructions regarding mentally unstable persons does not amount to deliberate indifference but at most negligence, which is not actionable under § 1983.
The district court properly excluded the expert testimony because the jury was capable of assessing the reasonableness of the use of force without expert assistance.
The objection to the jury instruction was forfeited because plaintiffs failed to distinctly state the grounds for objection as required by the rules.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Graham v. Connor, 490 U.S. 386 (1989)	Use of excessive force under the Fourth Amendment	Established the constitutional standard for excessive force claims applied here.
City of Canton v. Harris, 489 U.S. 378 (1989)	Deliberate indifference via failure to train or instruct police officers	Used to analyze whether the sheriff’s failure to instruct on handling mentally unstable persons constituted deliberate indifference.
Robles v. City of Fort Wayne, 113 F.3d 732 (7th Cir. 1997)	Deliberate indifference standard under § 1983	Supported the principle that failure to train must show deliberate indifference, not mere negligence.
Burge v. Parish of St. Tammany, 187 F.3d 452 (5th Cir. 1999)	Deliberate indifference in police training	Reinforced the standard for actionable failure to instruct police.
Tennessee v. Garner, 471 U.S. 1 (1985)	Limits on deadly force use by police	Informed the policy that deadly force is only justified to prevent death or great bodily harm.
Plakas v. Drinski, 19 F.3d 1143 (7th Cir. 1994)	Use of deadly force standards	Supported the sheriff’s policy and the reasonableness of deadly force under imminent threat.
Russo v. City of Cincinnati, 953 F.2d 1036 (6th Cir. 1992)	Deadly force justification	Used to validate the sheriff’s policy on deadly force.
Myers v. Oklahoma County Board, 151 F.3d 1313 (10th Cir. 1998)	Handling mentally ill suspects and deadly force	Referenced regarding desirability of special measures but distinguished from deliberate indifference.
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)	Admissibility of expert testimony	Afforded district court broad discretion in excluding expert testimony.
General Electric Co. v. Joiner, 118 S.Ct. 512 (1997)	Standard of review for expert testimony exclusion	Supported district court's discretion in expert witness rulings.
Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167 (1999)	Extension of Daubert standard to all expert testimony	Reinforced trial judge's gatekeeping role.
United States v. Hall, 93 F.3d 1337 (7th Cir. 1996)	Expert testimony must assist the trier of fact	Used to determine expert testimony was unnecessary for jury's decision.
Tennessee v. Garner, 471 U.S. 1 (1985)	Reasonableness of officer’s belief in danger for use of deadly force	Clarified that an officer’s belief must be reasonable, relevant to jury instructions.
Deering v. Reich, 183 F.3d 645 (7th Cir. 1999)	Reasonableness standard for deadly force	Supported requirement that officer’s belief be reasonable.
Palmquist v. Selvik, 111 F.3d 1332 (7th Cir. 1997)	Reasonableness of deadly force and mental state considerations	Used to illustrate the irrelevance of suspect’s mental state to reasonableness of force.
United States v. Linwood, 142 F.3d 418 (7th Cir. 1998)	Requirement to distinctly state grounds for objection to jury instructions	Applied to find plaintiffs forfeited objection to jury instruction.
Wilson v. Williams, 182 F.3d 562 (7th Cir. 1999) (en banc)	Importance of timely rulings on motions in limine	Noted as desirable but not reversible error absent continuance denial causing prejudice.

Court's Reasoning and Analysis

The court analyzed the plaintiffs’ claims under established Fourth Amendment excessive force jurisprudence, emphasizing that the sheriff’s department had a policy consistent with constitutional standards limiting deadly force to situations involving imminent threat of death or serious bodily harm. The court found that the failure to issue special instructions on handling mentally unstable individuals did not rise to deliberate indifference because the existing policy adequately protected constitutional rights. The plaintiffs failed to demonstrate a pattern of police killings of mentally ill persons that would have required additional measures.

Regarding expert testimony, the court held that the district judge acted within his discretion under Daubert by excluding the criminologist's testimony, as the jury was capable of assessing the reasonableness of Leombruni’s use of force without expert assistance. The court also noted that the plaintiffs did not show how expert testimony would have aided the jury.

The court addressed the jury instruction issue, explaining that while the instruction was technically incorrect for omitting the reasonableness requirement of the officer's belief in imminent danger, the plaintiffs forfeited this objection by failing to distinctly state the grounds for objection. Moreover, the court reasoned that the error was harmless because the evidence clearly supported the reasonableness of Leombruni’s actions.

Holding and Implications

Affirmed.

The Seventh Circuit affirmed the district court’s directed verdict for the defendants, concluding that the use of deadly force by Deputy Leombruni was reasonable under the circumstances and that the sheriff’s department’s failure to issue special instructions regarding mentally unstable individuals did not constitute deliberate indifference. The exclusion of expert testimony and the jury instruction error did not warrant reversal. This decision directly resolved the parties’ dispute without establishing new legal precedent beyond applying existing standards for excessive force, deliberate indifference, and evidentiary rulings.

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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, indi

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. § 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 §§ 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.