Rahn v. Hawkins

• Decision Date: 22 September 2006
• Docket Number: No. 05-3329.,05-3329.
• Citation: 464 F.3d 813
• Parties: Jeffrey C. RAHN, Appellant, v. Vickie HAWKINS; Craig Jansen; Gerald Fitzgerald, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

464 F.3d 813

Jeffrey C. RAHN, Appellant, v. Vickie HAWKINS; Craig Jansen; Gerald Fitzgerald, Appellees.

No. 05-3329.

United States Court of Appeals, Eighth Circuit.

Submitted: June 12, 2006.

Filed: September 22, 2006.

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Carter Collins Law, argued, Schriener Law, Clayton, MO, for Appellant.

Peter J. Dunne, Rabbitt & Pitzer, argued, St. Louis, MO, for Appellees.

Before LOKEN, Chief Judge, ARNOLD, Circuit Judge, and DOTY,¹ District Judge.

ARNOLD, Circuit Judge.

Hazelwood, Missouri, police officers shot and maced Jeffrey Rahn several times while trying to arrest him for a bank robbery. Mr. Rahn sued the officers under 42 U.S.C. § 1983, claiming that their use of force violated the fourth amendment because he was peacefully surrendering when shot. The district court determined that Officers Vickie Hawkins, Craig Jansen, and Gerald Fitzgerald were entitled to qualified immunity on the excessive-force claim and granted their motion for summary judgment. We reversed, holding that if Mr. Rahn was indeed surrendering without a struggle when shot and maced, the officers were not entitled to qualified immunity. See Rahn v. Hawkins, 73 Fed. Appx. 898 (8th Cir.2003) (unpublished per curiam). The suit proceeded to trial, and a jury found in favor of the defendants. Mr. Rahn appeals, arguing that various errors require a new trial. We affirm the judgment entered for Mr. Fitzgerald but reverse the judgment with respect to the other two defendants.

I.

When submitting proposed jury instructions to the district court, Mr. Rahn asked for a deadly-force instruction that read, "While the use of `force' is reasonable under the Fourth Amendment if it would seem justified to a reasonable police officer in light of the surrounding circumstances, the use of `deadly force' is only justified if the officer has probable cause to believe that a suspect poses a threat of serious physical harm to the officer or others." The district court refused the proposed instruction, citing its general trepidation about giving instructions that vary from the Eighth Circuit model instructions and its fear that the jury would be confused if it gave both Mr. Rahn's deadly-force instruction and the so-called verdict-director instruction that it did give. The instruction that it gave was derived from Eighth Circuit Model Jury Instruction (Civil) 4.10. The relevant portion of that instruction states, "In determining whether such force was `not reasonably necessary,' you must consider such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of the injury inflicted, and whether a reasonable officer on the scene, without the benefit of 20/20 hindsight, would have used such force under similar circumstances."

Mr. Rahn argues on appeal that the district court erred in not giving his proposed instruction to the jury. There is no dispute that Officers Hawkins and Jansen used deadly force in shooting Mr. Rahn; the only question at trial was if they acted reasonably in doing so. Mr. Rahn contends that because Model Instruction 4.10 does not advert specifically to the circumstances in which the police may constitutionally use deadly force, the district court should have given his instruction that draws on language in Tennessee v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985).

In reviewing jury instructions, we look at "whether the instructions, taken as a whole and viewed in the light of the evidence and applicable law, fairly and adequately submitted the issues in the case to the jury." Wheeling Pittsburgh Steel Corp. v. Beelman River Terminals, Inc., 254 F.3d 706, 711 (8th Cir.2001). We will reverse where the error affected the substantial rights of the parties. Id.

The use of deadly force to subdue a suspect is a seizure under the fourth amendment. Garner, 471 U.S. at 7, 105 S.Ct. 1694. A police officer may constitutionally employ such force only when "the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others." Id. at 11, 105 S.Ct. 1694; see also Thompson v. Hubbard, 257 F.3d 896, 899 (8th Cir.2001). This standard is more detailed and demanding than the one that governs excessive-force claims not including deadly force. Compare Graham v. Connor, 490 U.S. 386, 396-97, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).

One purpose of jury instructions "is to inform the jury of various permissible ways of resolving the issues in the case, and a party is entitled to an instruction on its theory of the case so long as it is legally correct and there is factual evidence to support it." Thornton v. First State Bank of Joplin, 4 F.3d 650, 652 (8th Cir.1993) (internal quotations omitted). The problem with giving only the more general excessive-force instruction is that it may mislead the jury as to what is permissible under the law. One can easily imagine a jury, having been given only the general standard, concluding that an officer was "objectively reasonable" in shooting a fleeing suspect who posed no threat to the officer or others. But such a result would be contrary to the law and would work an injustice to the injured plaintiff.

Jury instructions that discuss only excessive force in only a general way do not adequately inform a jury about when a police officer may use deadly force. Monroe v. City of Phoenix, 248 F.3d 851, 859-60 (9th Cir.2001). When a plaintiff presents evidence at trial tending to show that a defendant used deadly force, the district court must instruct the jury as to that more exacting standard. Cf. Thornton, 4 F.3d at 652. Since Officers Hawkins and Jensen used deadly force against Mr. Rahn the district court should have given the jury a deadly-force instruction as to these two defendants. Its failure to do so amounts to error.

Mr. Rahn's proffered instruction is markedly different from Model Instruction 4.10, and its definition of when the police may use deadly force is much more circumscribed. The sole issue at trial was whether the defendants' use of force was justified. A correct statement of the law as to what circumstances justified deadly force was therefore critical to a correct disposition of the case. Because the jury was instructed improperly as to deadly force, and because we cannot conclude that the error was harmless, we must reverse the judgment entered on the jury verdict as to Officers Hawkins and Jensen and remand for a new trial. Howard v. Barnett, 21 F.3d 868, 872 (8th Cir.1994).

II.

Mr. Rahn presented no evidence that Officer Fitzgerald used deadly force against him and so the district court did not err when it refused to give a deadly-force instruction with regards to Officer Fitzgerald. We therefore consider the other issues that Mr. Rahn raises on appeal.

A.

Before voir dire, the district court told each party that it had two peremptory challenges. Both parties agree that the district court clearly erred in doing so, since Federal Rule of Civil Procedure 47(b) and 28 U.S.C. § 1870 provide each party to a civil suit with three peremptory challenges.

The parties disagree, however, as to what we should do about the error. Mr. Rahn contends that because the district court denied him the use of a peremptory challenge, we should give him a new trial. In support, he cites language from Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), where the Supreme Court said that "[t]he denial or impairment of the right [to peremptory challenges] is reversible error without a showing of prejudice." Because the erroneous denial or impairment of the peremptory strike affects the very "constitution of the trial mechanism," Arizona v. Fulminante, 499 U.S. 279, 309, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), it amounts to a "structural error." Such errors defy harmless-error analysis because the entire trial process is infected and the appellate court is left with no way to tell what would have been the result had the error not occurred. When the party has registered a proper objection to a structural error, the court must reverse. See id. at 309-10, 111 S.Ct. 1246.

The defendants, however, contend that such a remedy is unwarranted here. They first argue that Mr. Rahn cannot raise the issue on appeal because he did not make a contemporaneous objection to the trial court's action. They further contend that, even if we do consider the matter, a new trial is warranted only if Mr. Rahn can show actual prejudice, i.e., that the jury that heard the case was a biased one.

We conclude that the district court's error in effect denied Mr. Rahn his right to exercise a third peremptory strike and therefore amounts to structural error. When the district court told the parties that each could exercise two peremptory strikes, the unstated converse was that they could not exercise a third. Had Mr. Rahn objected to the district court's error, our inquiry would be at an end.

But Mr. Rahn did not object. The failure to object to any error, even a structural one, leaves the appellate court with the power to notice only plain error. Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). Plain error exists if the district court deviates from a legal rule; the error is clear under current law; and the error affects substantial rights, which ordinarily means that the error affects the outcome of the proceedings. United States v. Olano, 507 U.S. 725, 732-35, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). We have the discretion to correct such an error when to abstain would "`seriously affect the fairness, integrity or public reputation of judicial proceedings.'" Id. at 736, 113 S.Ct. 1770 (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 80 L.Ed. 555 (1936)). Although Olano dealt with plain error in the context of a criminal proceeding, "an...