CA2: Just because plaintiff didn’t have a gun in hand when shot doesn’t mean force was excessive

Plaintiff was not entitled to judgment as a matter of law on an excessive force claim for being shot during execution of a search warrant just because a gun was not found on him after the shooting. Officers knew that he had a propensity for violence, and an officer not involved in the shooting had yet “shots fired.” A gun was later found outside a window. Carvajal v. Mihalek, 453 Fed. Appx. 69 (2d Cir. 2011) (unpublished)*:

Finally, we are not persuaded by Carvajal’s argument that no reasonable jury could have concluded that a warning was not feasible before shots were fired. See Tennessee v. Garner, 471 U.S. 1, 11-12, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985) (holding that, if officers have probable cause to believe suspect poses threat of serious physical harm, “deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given”); accord Hemphill v. Schott, 141 F.3d 412, 417 (2d Cir. 1998). First, Carvajal’s contention rests on a false premise that no warning was given. In fact, when police entered the apartment, Mihalek, Rizza, and other armed officers repeatedly warned Robert and Joseph Carvajal to “get down,” which they disobeyed. … Assuming arguendo that a further warning was required, a reasonable jury could have found that such a warning was not feasible in light of the rapidly evolving scenario in which an armed Robert Carjaval and his reputedly violent brother refused to comply with the “get down” order and appeared to be positioning themselves to use deadly force to resist arrest.

In sum, Carvajal was not entitled to judgment as a matter of law. As the district court correctly observed, the Bivens claim depended on an assessment of the parties’ credibility, which a reasonable jury could resolve in favor of defendants. On such a determination, a reasonable jury could conclude from the evidence that defendants’ use of force was objectively reasonable and, therefore, consistent with the Fourth Amendment.