Pena v. Leombruni

200 F.3d 1031, 1999 WL 1277525
CourtCourt of Appeals for the Seventh Circuit
DecidedDecember 30, 1999
DocketNo. 99-1435
StatusPublished
Cited by36 cases

This text of 200 F.3d 1031 (Pena v. Leombruni) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pena v. Leombruni, 200 F.3d 1031, 1999 WL 1277525 (7th Cir. 1999).

Opinion

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, 109 S.Ct. 1865, 104 L.Ed.2d 443 (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 sheriffs 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 sheriffs 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, 109 S.Ct. 1197, 103 L.Ed.2d 412 (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. Hams, supra, 489 U.S. at 390 n. 10, 109 S.Ct. 1197. 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, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985); Plakas v. Drinski, 19 F.3d 1143, 1146 (7th Cir.1994), and Rtisso 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, 109 S.Ct. 1197; Payne v. Churchich, 161 F.3d 1030, 1042 (7th Cir.1998); Manante 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 [1034]*1034that 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, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), we must give the district judge a generous latitude in making such judgments. General Electric Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 517, 139 L.Ed.2d 508 (1997); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 1176, 143 L.Ed.2d 238 (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.

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Cite This Page — Counsel Stack

Bluebook (online)
200 F.3d 1031, 1999 WL 1277525, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pena-v-leombruni-ca7-1999.