The Clerk of the Court is instructed to conform the caption in accordance herewith.… v. State of New York UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2 August…

* The Clerk of the Court is instructed to conform the caption in
accordance herewith.
1
09-5025-cv (L)
Terranova v. State of New York
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
August Term, 2011 3
4
(Argued: October 14, 2011 Decided: April 16, 2012) 5
Docket Nos. 09-5025-cv(L), 10-3008-cv(CON) 6
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JOHN TERRANOVA, as the Administrator of the Estate of NICHOLAS 8 TERRANOVA, 9
10 Plaintiff-Appellant, 11
DEVIN BALDWIN and LAMAR OLIVER, 12
Consolidated-Plaintiffs-Appellants, 13
v. 14
STATE OF NEW YORK and KEVIN QUINTERO, New York State Trooper, 15
16 Defendants, 17
18 RAFAEL TORRES, New York State Trooper and AARON RILEY, New York 19 State Trooper, 20
21 Defendants-Appellees.*
22
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B e f o r e: WINTER, LYNCH, and CARNEY, Circuit Judges. 24
Appeal from a judgment entered in the United States 25
District Court for the Southern District of New York (Cathy 26

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2
Seibel, Judge), following a jury verdict finding that 1
defendants-appellees did not use unreasonable force in 2
executing a traffic stop. Appellants principally challenge the 3
district court’s decision not to give a jury instruction on the 4
use of deadly force. We affirm. 5
MICHAEL J. GRACE, Grace & Grace, 6 Yorktown Heights, New York, for 7 Plaintiffs-Appellants. 8
9 OREN L. ZEVE, Managing-Administrative 10 Assistant Solicitor General (Barbara 11 D. Underwood, Solicitor General, 12 Benjamin Gutman, Deputy Solicitor 13 General, and Richard O. Jackson, 14 Assistant Solicitor General, of 15 counsel, on the brief), for Eric T. 16 Schneiderman, Attorney General for the 17 State of New York, for Defendants- 18 Appellees. 19
WINTER, Circuit Judge: 20
John Terranova, Devin Baldwin, and Lamar Oliver appeal 21
from a jury verdict finding New York State Troopers Raphael 22
Torres and Aaron Riley (collectively “Troopers”) not liable for 23
injuries that appellants, and, with respect to Terranova, the 24
mortal injuries that appellant’s decedent Nicholas Terranova, 25
sustained during a traffic stop. Appellants claim that the 26
Troopers violated appellants’ Fourth Amendment right to be free 27
from unreasonable seizure through the use of excessive force. 28
We hold that the district court did not err by declining to 29
instruct the jury regarding the use of “deadly force” in 30
addition to a correct instruction on excessive force. 31
Affirmed. 32

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3
BACKGROUND 1
On the night of June 2, 2003, Riley was stationed on the 2
Sprain Brook Parkway and received reports that motorcyclists 3
were speeding and driving erratically while traveling north on 4
the parkway. Speculating that the motorcyclists might return 5
south, Riley enlisted the help of Torres to assist in stopping 6
the motorcyclists if they returned southbound. Torres took a 7
position south of Riley, who positioned himself to alert Torres 8
to stop traffic if the motorcyclists passed. The Troopers 9
testified that this plan was conceived to avoid a potentially 10
dangerous high-speed chase. 11
At approximately 11:30 p.m., several motorcycles 12
approached Riley's position and slowed to approximately 60 mph 13
when they saw him on the side of the road. This group included 14
appellants and a friend, Kyle Figueroa. After passing Riley, 15
appellants increased their speed to greater than 80 mph. 16
Figueroa was going significantly faster. The speed limit was 17
55 mph. 18
When the motorcyclists passed, Riley radioed to Torres to 19
stop traffic, and Riley followed the motorcyclists. Torres 20
chose a portion of the parkway with a long straightaway where 21
vehicles could see his lights and stop safely. He then drove 22
in a serpentine motion to slow traffic and brought it to a 23
stop, causing several vehicles to clog the right and center 24
lanes. In the left lane, Figueroa, who had reached the 25

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1 The State of New York and Trooper Quintero were dismissed as
defendants prior to trial and are not a part of this appeal. See Terranova v.
New York, 144 F. App’x 143, 147 (2d Cir. 2005) (upholding dismissal of claims
against the State of New York); Terranova v. Torres, 603 F. Supp. 2d 630, 631
n.2 (S.D.N.Y. 2009) (granting summary judgment in favor of Trooper Quintero).
4
roadblock faster than appellants, had also come to a stop. 1
According to Torres, none of the vehicles had any difficulty 2
stopping. 3
As appellants approached the traffic stoppage, they saw 4
the brake lights of the stopped vehicles and the emergency 5
lights on Torres's cruiser. Baldwin, who was in front, had 6
slowed to between 30 and 35 mph as he approached Figueroa in 7
the left lane. When Baldwin was approximately 15-20 feet from 8
Figueroa, a BMW that had been stopped in the center lane 9
abruptly moved into the left lane, and Baldwin collided with 10
that vehicle. Terranova, who was behind Baldwin, drove into 11
the median to avoid the collision and came to stop on the 12
grass. Oliver, who was behind Terranova, also drove into the 13
median to avoid the accident and jumped off his motorcycle. 14
Oliver's unmanned motorcycle struck Terranova in the chest, and 15
Terranova died from the injuries he sustained. 16
Both Figueroa and the driver of the BMW testified that 17
Torres directed the BMW to enter the left lane, but Torres 18
stated that the BMW changed lanes of its own accord. 19
Appellants then brought this action seeking damages under 20
42 U.S.C. § 1983 for violation of their Fourth Amendment 21
rights, claiming that they were seized without justification 22
and that the Troopers used excessive force. The case proceeded 23
to trial. 1
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5
During trial, the district court originally proposed to 1
give instructions to the jury that included a separate “deadly 2
force” charge with regard to the factors outlined by the 3
Supreme Court in Tennessee v. Garner, 471 U.S. 1 (1985), as 4
preconditions to the lawful use of deadly force. However, the 5
district court ultimately removed that instruction, concluding 6
that, under Scott v. Harris, 550 U.S. 372 (2007), it was 7
inappropriate to instruct the jury on the Garner factors in 8
cases with dissimilar facts. The resulting jury instructions 9
informed the jurors that they were to decide whether the force 10
used was objectively reasonable and specified the various 11
factors that might affect that determination, such as the 12
severity of the violation, the threat posed by the appellants, 13
whether the appellants attempted to evade the police, and what 14
other options, if any, were available to the Troopers. 15
The jury rendered a verdict in favor of the Troopers. 16
Appellants then filed motions for judgment notwithstanding the 17
verdict and for a new trial, which were denied. This appeal 18
followed. 19
DISCUSSION 20
We review jury instructions de novo with regard to whether 21
the jury was misled or inadequately informed about the 22
applicable law. Henry v. Wyeth Pharm., Inc., 616 F.3d 134, 146 23
(2d Cir. 2010). 24
25

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6
Claims that the police used excessive force are “judged 1
under the Fourth Amendment’s ‘objective reasonableness’ 2
standard.” Brosseau v. Haugen, 543 U.S. 194, 197 (2004) 3
(quoting Graham v. Connor, 490 U.S. 386, 388 (1989)). This 4
requires a “balancing of the . . . intrusion on ‘the 5
individual’s Fourth Amendment interests’ against the 6
countervailing governmental interest at stake,” Graham, 490 7
U.S. at 396 (quoting Garner, 471 U.S. at 8), and involves the 8
consideration of factors such as “the severity of the crime at 9
issue, whether the suspect poses an immediate threat to the 10
safety of the officers or others, and whether he is actively 11
resisting arrest or attempting to evade arrest by flight.” Id. 12
Appellants make no claim that the district court's 13
instructions failed to convey the proper standards as to 14
objectively reasonable force. However, appellants argue that 15
Garner established constitutional preconditions for the use of 16
deadly force and that, by failing to instruct the jury on the 17
Garner factors, the court left the jurors inadequately informed 18
as to the law. We disagree. 19
In Garner, a police officer shot a fleeing suspect. 471 20
U.S. at 3-4. The suspect, who was “young, slight, and 21
unarmed,” had broken into a house, and when the police arrived, 22
the suspect attempted to flee. Id. at 4, 21. Fearing that the 23
suspect, who was climbing a fence, would successfully escape, 24
the officer shot him in the back of the head. Id. at 4. In 25

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concluding that the officer’s use of force was unreasonable, 1
the Court stated: “[I]f the suspect threatens the officer with 2
a weapon or there is probable cause to believe that he has 3
committed a crime involving the infliction or threatened 4
infliction of serious physical harm, deadly force may be used 5
if necessary to prevent escape, and if, where feasible, some 6
warning has been given.” Id. at 11-12. 7
Following Garner, some courts held that “the Supreme Court 8
. . . established a special rule concerning deadly force,” 9
which could require a separate jury instruction in any case in 10
which police conduct created a substantial risk of death or 11
serious bodily injury. Vera Cruz v. City of Escondido, 139 12
F.3d 659, 661, 663 (9th Cir. 1997), modified, Smith v. City of 13
Helmet, 394 F.3d 689, 705 (9th Cir. 2005) (holding that “deadly 14
force” means all force that creates a substantial risk of death 15
of serious bodily injury rather than force that is reasonably 16
likely to cause death); see also Adams v. St. Lucie Cnty. 17
Sheriff’s Dep’t, 962 F.2d 1563, 1570-71 (11th Cir. 1992) 18
(applying Garner to a vehicular chase on summary judgment). 19
However, the Court's more recent decision in Scott, involving 20
facts similar to those in the present matter, rejected the view 21
that Garner created a special rule, separate from the usual 22
reasonableness analysis, that applies to any form of police 23
conduct that might possibly result in death or serious injury. 24
25

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2 The Court reached this conclusion after acknowledging that the
officer’s actions placed the plaintiff “at risk of serious injury or death.”
Id. at 374.
8
In Scott, police officers initiated a high-speed chase in 1
an attempt to stop the plaintiff, who was driving recklessly 2
and at high speeds. 550 U.S. at 379-80. The chase was 3
ultimately terminated when a police officer ran into the rear 4
of the plaintiff’s vehicle, causing an accident that resulted 5
in serious injuries to the plaintiff. Id. at 375. There, as 6
here, the plaintiff argued that the Garner factors should 7
determine whether the use of deadly force was appropriate. Id. 8
at 381-82. However, the Court rejected that approach, stating, 9
“Garner was simply an application of the Fourth Amendment’s 10
‘reasonableness’ test . . . to the use of a particular type of 11
force in a particular situation.” Id. at 382 (citing Graham, 12
490 U.S. at 388). The Court made clear that consideration of 13
the factors that might have justified the shooting in Garner 14
was not needed in cases involving police actions of less 15
coercion. More specifically, it held that Garner does not 16
apply in cases involving accidents that occur when police 17
attempt to stop a vehicle. See id. at 383 (“Whatever Garner 18
said about the factors that might have justified shooting the 19
suspect in that case, such ‘preconditions’ have scant 20
applicability to this case, which has vastly different facts. 21
‘Garner had nothing to do with one car striking another or even 22
with car chases in general.’” (quoting Adams, 962 F.2d 1563, 23
1577 (11th Cir. 1992) (Edmondson, J., dissenting)). 2
24

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We therefore conclude that, absent evidence of the use of 1
force highly likely to have deadly effects, as in Garner, a 2
jury instruction regarding justifications for the use of deadly 3
force is inappropriate, and the usual instructions regarding 4
the use of excessive force are adequate. Id.; see also Penley 5
v. Eslinger, 605 F.3d 843, 850 (11th Cir. 2010) (“[N]one of 6
these [Garner] conditions are prerequisites to the lawful 7
application of deadly force.”); Pasco ex rel. Pasco v. 8
Knoblauch, 566 F.3d 572, 579-80 (5th Cir. 2009) (finding no 9
specific Garner application to car chases and that the inquiry 10
depends instead on what was objectively reasonable); Acosta v. 11
Hill, 504 F.3d 1323, 1324 (9th Cir. 2007) (holding that after 12
Scott, a separate jury charge specifically on the use of deadly 13
force is unnecessary). 14
The present matter is easily distinguishable from Garner 15
given the type of force used -- a traffic stop as opposed to 16
firing a gun aimed at a person. While a traffic stop poses 17
some risks, it is designed only to apprehend suspects and, 18
here, prevent injury to other motorists as well as appellants. 19
It is not designed to achieve those goals by seriously injuring 20
the suspects. 21
The appropriate inquiry is, therefore, whether the force 22
used was objectively reasonable. The absence of a deadly force 23
instruction neither misled the jury nor left them uninformed as 24
to the applicable law. 25

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CONCLUSION 1
We have considered appellants’ additional claims and find 2
them to be without merit. For the foregoing reasons, we 3
affirm. 4

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