New York v. Tanella

• Decision Date: 30 June 2004
• Docket Number: No. 03-1589.,03-1589.
• Parties: State of NEW YORK, Appellant, v. Jude TANELLA, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

Page 141

374 F.3d 141

State of NEW YORK, Appellant, v. Jude TANELLA, Defendant-Appellee.

No. 03-1589.

United States Court of Appeals, Second Circuit.

Argued: April 21, 2004.

Decided: June 30, 2004.

Ann N. Bordley, Assistant District Attorney, (Leonard Joblove, Victor Barall, Assistant District Attorneys, of counsel), for Charles J. Hynes, District Attorney, Kings County, Brooklyn, N.Y., for Appellant.

Adam S. Hoffinger (Robert A. Salerno, Bridget M. Fitzpatrick, of counsel), Piper Rudnick LLP, Washington, D.C., for Defendant-Appellee.

Wayne W. Schmidt, Law Office of Wayne W. Schmidt, Park Ridge, IL, for amicus curiae Americans for Effective Law Enforcement, Inc., in support of Defendant-Appellee.

Gene Voegtlin, Law Office of Gene Voegtlin, Alexandria, VA (James P. Manak, Glen Ellyn, IL, of counsel), for amicus curiae The International Association of Chiefs of Police, Inc., in support of Defendant-Appellee.

Before: McLAUGHLIN, SACK, SOTOMAYOR, Circuit Judges.

McLAUGHLIN, Circuit Judge.

The State of New York ("the State") appeals from a judgment of the United States District Court for the Eastern District of New York (Garaufis, J.), dismissing an indictment against Drug Enforcement Administration ("DEA") Agent Jude Tanella for manslaughter. In May 2002, Agent Tanella shot and killed drug dealer Egbert Dewgard in Brooklyn, New York, after a high-speed car chase and a violent one-on-one struggle.

The Kings County District Attorney filed criminal charges against Tanella; and a New York State grand jury then indicted him on one count of first-degree manslaughter. After Tanella removed the case to federal court, Judge Garaufis dismissed the indictment on the ground that Tanella was immune from state prosecution under the Supremacy Clause of the United States Constitution.

On appeal, the State asks this Court to reinstate the indictment for manslaughter and to remand to the district court for a jury trial on the question of immunity. Because Tanella established his entitlement to Supremacy Clause immunity as a matter of law, we affirm the district court's dismissal of the indictment.

BACKGROUND

I. The Facts

This case arises from a buy-and-bust drug operation in Brooklyn, New York, conducted by a New York Drug Enforcement Task Force. The field team assigned to the operation comprised DEA agents, including defendant Tanella, and detectives of the New York City Police Department ("NYPD"). The objective of the operation was to arrest Dewgard, a reputed drug dealer and firearms trafficker. A confidential informant, who had previously bought substantial quantities of cocaine from Dewgard, arranged to purchase another three kilograms of cocaine from Dewgard as part of the setup.

On the morning of May 1, 2002, the field team was split into two groups to conduct surveillance of both Dewgard's residence and his place of business, a printing shop. One of the detectives and three of the DEA agents, including Tanella, monitored Dewgard's residence. The other group monitored Dewgard's printing shop. Everyone on the field team wore plain clothes, drove unmarked cars, and was armed. When Dewgard appeared at his shop, Tanella and the other three members of his group were ordered to join the surveillance there.

While at the shop, Dewgard spoke to the confidential informant and arranged to make a cocaine sale later that day at Dewgard's home in Brooklyn. The delay, according to Dewgard, was to give him time to pick up the drugs.

From his shop, Dewgard drove to a nearby apartment building where an unidentified man placed a large black plastic bag in the passenger seat of Dewgard's car. Special Agents Scott Herbel and Dennis Peterson (sharing a car) and Detective Edward Corcoran and Tanella (driving separate cars) followed Dewgard as he left the pick-up site. When Dewgard stopped at a red light, the officers used their cars to box in Dewgard's. Agents Peterson and Tanella activated their flashing red lights, and Agents Herbel and Peterson exited their vehicle to arrest Dewgard.

Nevertheless, ramming Detective Corcoran's car and driving at high speed onto the sidewalk, Dewgard managed to escape. Agents Peterson and Tanella sounded their sirens. Detective Corcoran initially led the pursuit, but because he had no siren, he pulled over and allowed the three agents to pass him. As Dewgard raced through the streets of a residential neighborhood, Peterson and Herbel lost sight of Dewgard, leaving Tanella alone to pursue him. During the high-speed chase, Tanella continually used his radio to apprise the other members of the field team of his location.

About three-quarters of a mile into the chase, Dewgard careened, for a second time, onto the sidewalk, where his car wedged between a telephone pole and a fire hydrant, narrowly missing a pedestrian who was pushing her three-year-old daughter in a stroller.

Dewgard jumped from his car and fled on foot carrying the black plastic bag. Tanella radioed the other officers and pursued Dewgard on foot. He was about twenty-five feet behind Dewgard. Tanella displayed his badge, removed his gun from its left-side holster, identified himself as a police officer, and shouted to Dewgard to stop. Dewgard continued running down New York Avenue. Tanella testified that, because he was behind Dewgard, he was unable to see if Dewgard was armed.

Dewgard finally stumbled and landed between a parked car and a parked van. He dropped the black bag, which was later found to contain three kilograms of cocaine. Tanella then caught up to Dewgard, who was still on the ground, and jumped on top of him. The two men struggled between the parked vehicles, with Dewgard continuing to resist arrest. At some point while they wrestled, Tanella fired one shot which hit the lower right portion of Dewgard's back and killed him. Within a minute, Agents Peterson and Herbel, who had lost contact with Tanella during the foot chase, arrived at the scene. A search of Dewgard revealed that he had no gun.

Neither the State nor Tanella disputes the underlying facts of the buy-and-bust operation, the vehicular pursuit, the foot chase, or Dewgard's violent struggle to avoid arrest. Nor is there any disagreement that Tanella fired his gun and caused the death of Dewgard. The dispute centers on the relative positions of Dewgard and Tanella at the time of the shooting as well as on the reasonableness of Tanella's perception at that moment. The State claims that divergent eyewitness accounts at this critical, but narrow, temporal and spatial juncture require a jury trial to determine whether Tanella acted reasonably under the circumstances in the performance of his official duties as a DEA Agent. Because these divergent accounts form the basis of the State's position, we set forth, in some detail, the grand jury testimony.

Tanella

Tanella testified that he struggled to subdue Dewgard on the ground between the two vehicles. Unable to holster the gun in his left hand, Tanella tried with his right to defend himself against Dewgard, who was approximately four inches taller and twenty pounds heavier than Tanella. Tanella stated repeatedly that Dewgard was under arrest and ordered him to stop resisting. Dewgard responded, "[F]uck you, shoot me," and continued to punch Tanella in the face, side, and chest, while Tanella tried to "fend[] off blows" with his only free hand. As they struggled on the ground between the vehicles, Tanella asked the gathering crowd of onlookers to call 911. Immediately before the shooting, Dewgard pushed Tanella off balance onto his hands and knees. When Dewgard "look[ed] directly at [Tanella's] gun and [went] for [the] weapon," reaching for it in "a twisting motion," Tanella feared for his life and fired a single shot. Dewgard was an arm's length away from Tanella.

Eyewitnesses

Eyewitness Benjamin Shurin testified that he saw a police badge around Tanella's neck and a gun in his hand as Tanella chased Dewgard down New York Avenue. From "[o]ne or two feet" away, Shurin observed Tanella and Dewgard struggling on the ground, until Dewgard finally "managed to get up and tried to run." When pressed, Shurin stated that it looked as though Tanella "was trying to get up and hold [Dewgard] down." Once Dewgard stood up, Shurin heard a pop and saw both men fall to the ground in "the same place that they were," between the parked vehicles.

Eyewitness Edward John was in front of his house facing New York Avenue when he heard, "`Don't move, stay down.'" John testified that he saw Tanella sitting on top of Dewgard and holding a gun in his left hand. Ignoring Tanella's warnings, Dewgard was "trying to get up" and pushed Tanella off of him. John observed Tanella "push [Dewgard] against a car and [hold] him there ... telling him, `Freeze, don't move,"' while pointing his gun in the air. While Tanella held Dewgard against the car, John heard Tanella say, "`I have a gun, I'm going to shoot you."' Then, Dewgard "push [sic] from the cop and turned to run across the street, go across the street, and he want [sic] to make two or three steps away from the cop when the cop shoot [sic] him in his back." According to John, Dewgard and Tanella were "close up," "very close up" at the time of the shooting. John further testified that Dewgard fell "a good two, three steps from where the car [was] parked."

Synthia Bobbit also observed the chase on New York Avenue. Bobbit characterized Tanella as a "small built man" and Dewgard as "way bigger" than Tanella. From "two car lengths" away, she saw Dewgard and Tanella "tussling" on the ground with Dewgard resisting all of Tanella's efforts to handcuff him. After Dewgard managed to stand up, Bobbit watched as Dewgard was "getting the best of" Tanella. Bobbit saw Tanella "jump[] away" from Dewgard, who "lean[ed] towards the cop, that is when the cop, he draw [sic] the gun back and he shot."

From a distance of "three to four feet away," Benjamin Murray witnessed Tanella and Dewgard ...