UNITED
STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
State of New York,
Appellant,
- v. -
Jude Tanella,
Defendant-Appellee.
Docket No. 03-1589
374 F.3d 141
2004 U.S. App. Lexis 13490
April 21, 2004, Argued
June 30, 2004, Decided
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.
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, “Fuck 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 “looked
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 “one 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 “leaned 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 “scrapping on the ground,”
with Dewgard trying to push Tanella off of him. Tanella was telling Dewgard, “‘Don’t
move.’” Dewgard “looked like he wanted to make a fake move and run” -- i.e., “one
of those moves like he [was] ready to run” -- at which point Tanella “pulled
the revolver out and shot him.”
Barbara Gurly testified that she too
observed Tanella chasing Dewgard, but at no time saw the men on the ground. She
saw both men standing on the sidewalk, with Tanella trying to handcuff Dewgard
and saying, “‘I’m gonna shoot you.’” According to Gurly, Tanella stood behind
Dewgard, who was “trying to stand still but he didn’t want the cuffs to go on
his hand.” Then, Tanella shot Dewgard. According to Gurly, the two men “were
close, not far away from each other,” possibly two-and-a-half feet apart, at
the time of the shot.
Jewel Wallace testified that she was in her
fifth-floor apartment but clearly heard someone shouting, “‘Stop, police.’”
From her window, she saw two men struggling face-to-face, with Tanella holding
Dewgard “up against the hood of the car” and Dewgard “trying to get him away.”
Wallace observed Dewgard “try to run, miss[] the step, then . . . crumble[]” to
the ground as a single shot was fired. Wallace also stated that Dewgard “turned
to run” at the moment he was shot. Wallace testified that, at the time of the
shot, both men were still between the parked cars, at “arm’s length distance”
from one another.
Finally, David Taylor testified that he
saw two men “fighting on the car.” From a distance of about seventy feet,
Taylor witnessed Dewgard push Tanella away and “try to just turn around and
run.” At that point, while both men were standing upright, Tanella shot Dewgard
“in his back.” According to Taylor, Tanella shot Dewgard at “point blank range,”
or from a distance of approximately three to four feet.
Forensic Evidence
There was also testimony before the grand
jury from Dr. Marie Macajoux, a forensic expert who examined Dewgard’s body.
She testified that the bullet entered the right side of Dewgard’s back and
traveled upward at a thirty-degree angle toward the front left portion of
Dewgard’s chest. According to Macajoux, two different scenarios were possible:
(1) Dewgard was turning away from the shooter when the shot was fired; or (2)
Dewgard was reaching toward the shooter and turned his body just before the
shot was fired. Given the absence of soot or stippling on Dewgard’s body,
Macajoux determined that the muzzle of the gun was more than twelve to eighteen
inches away from Dewgard when the shot was fired.
II.
Procedural History
In October 2002, the State convened a grand
jury in the New York State Supreme Court. After hearing the testimony of the
task force agents, the eyewitnesses, and the forensic expert and being
instructed on New York law, the grand jury indicted Tanella on one count of
Manslaughter in the First Degree in violation of N.Y. Penal Law § 125.20(1), as
follows:
The Defendant, on or about May 1, 2002, in the
County of Kings, with intent to cause serious physical injury to Egbert
Dewgard, caused the death of Egbert Dewgard by discharging and causing to be
discharged a loaded firearm, thereby inflicting various wounds and injuries
upon Egbert Dewgard. And thereafter on or about May 1, 2002, Egbert Dewgard
died of those wounds and injuries.
Tanella petitioned the United States
District Court for the Eastern District of New York for removal pursuant to 28
U.S.C. § 1442(a)(1) (providing for removal of “criminal prosecution commenced
in a State court against . . . any officer . . . of the United States or of any
agency thereof . . . for any act under color of such office . . . for the
apprehension . . . of criminals”). Over the State’s objections, the federal
district court (Garaufis, J.) granted Tanella’s petition. New York v. Tanella,
239 F. Supp. 2d 291, 298 (E.D.N.Y. 2003).
In March 2003, Tanella moved to dismiss the
indictment under Federal Rule of Criminal Procedure 12(b). The issue was fully
briefed, and oral arguments heard. Tanella argued that, as a federal law
enforcement officer, he was immune from state criminal prosecution under the
Supremacy Clause of the United States Constitution. The State argued that a
jury should decide the issue of immunity in the course of determining Tanella’s
guilt. Content to rely on the testimony before the grand jury, the State
declined the court’s offer to hold an evidentiary hearing.
In addition to the grand jury testimony,
two photographs were submitted to the district court. They depict the narrow
space between the front of the car and the rear of the van where the struggle
and shooting occurred. The photographs show a pool of blood on the street in
the narrow space between the vehicles.
In September 2003, the district court
granted Tanella’s motion to dismiss the indictment with prejudice, finding that
Tanella “did no more than what was necessary and proper in the discharge of his
duty” as a federal agent and thus was immune from prosecution. New York v. Tanella, 281 F. Supp. 2d 606,
623 (E.D.N.Y. 2003) .
This case requires us to “walk[] the fine
line created between the goal of protecting federal officials acting in the
scope of their duties and the obligation to avoid granting a license to federal
officials to flout state laws with impunity.” Whitehead v. Senkowski, 943 F.2d
230, 234 (2d Cir. 1991). The task has been described as a delicate balancing
act, and we are conscious of the care that we must exercise in undertaking it.
Id.; see United States ex rel. Drury v. Lewis, 200 U.S. 1, 7, 50 L. Ed. 343, 26
S. Ct. 229 (1906).
Specifically, we must decide whether the
district court was correct to dismiss the State’s indictment against Agent
Tanella pursuant to Rule 12(b). See Fed. R. Crim. P. 12(b)(2) (“A party may
raise by pretrial motion any defense, objection, or request that the court can
determine without a trial of the general issue.”); see also Fed. R. Crim. P.
12(b) advisory committee’s note (stating that “immunity” is a Rule 12(b)
defense); Kentucky v. Long, 837 F.2d 727, 750 (6th Cir. 1988) (holding that a
defense of federal immunity is properly raised in a Rule 12(b) motion and
decided before trial). Because this issue raises mixed questions of law and
fact, we decide de novo whether Tanella qualifies for federal immunity under
the Supremacy Clause. See United States v. Gonzalez-Roque, 301 F.3d 39, 44 (2d
Cir. 2002).
The Supremacy Clause of the United States
Constitution declares that: “This Constitution, and the Laws of the United
States . . . shall be the supreme Law of the Land . . ., any Thing in the . . .
Laws of any State to the Contrary notwithstanding.” U. S. Const. art VI, cl. 2. This clause is
designed to ensure that states do not “retard, impede, burden, or in any manner
control” the execution of federal law. McCulloch v. Maryland, 17 U.S. (4
Wheat.) 316, 436, 4 L. Ed. 579 (1819).
The Supremacy Clause has been held to
protect federal officers from state prosecution under certain circumstances. As
set forth in the seminal case of In re Neagle, 135 U.S. 1, 34 L. Ed. 55, 10 S.
Ct. 658 (1890): “If the prisoner is held in the state court to answer for an
act which he was authorized to do by the law of the United States, which it was
his duty to do as marshal of the United States, and if in doing that act he did
no more than what was necessary and proper for him to do, he cannot be guilty
of a crime under . . . [state] law . . . .” Id. at 75. As such, the federal
immunity defense ought to be decided “early in the proceedings” so as “to avoid
requiring a federal officer to run the gauntlet of standing trial and having to
wait until later to have the [immunity] issue decided.” Long, 837 F.2d at 752.
Indeed, by providing immunity from suit rather than a mere shield against
liability, the defense of federal
immunity protects federal operations from the chilling effect of state prosecution. See Neagle, 135 U.S. at 60-61
(observing that the United States “may, by means of physical force, exercised
through its official agents, execute . . . the powers and functions that belong
to it” and that the Constitution requires state law to yield to the power of
the federal government); see also Tennessee v. Davis, 100 U.S. 257, 262-63, 25
L. Ed. 648 (1879) (noting the need to prevent states from “paralyzing”
operations of the federal government).
No one disputes that Tanella was acting in
his capacity as a federal DEA Agent when he shot Dewgard. Accordingly, we focus
on the second prong of the Neagle test - namely, whether Tanella’s actions were
no more than was “necessary and proper” to carry out his duty. To meet this
standard, two conditions must be satisfied: (1) the actor must subjectively
believe that his action is justified; and (2) that belief must be objectively
reasonable. Whitehead, 943 F.2d at 234; see also Long, 837 F.2d at 745 (“On the
subjective side, the agent must have an honest belief that his action was
justified. On the objective side, his belief must be reasonable.”). A
defendant, however, need not “show that his action was in fact necessary or in
retrospect justifiable, only that he reasonably thought it to be.” Clifton v.
Cox, 549 F.2d 722, 728 (9th Cir. 1977). Thus, we must view all of the
circumstances as they appeared to Tanella. See id. at 728-29; United States v.
Lipsett, 156 F. 65, 71 (W.D. Mich. 1907) (stating that a federal officer is “not
liable to prosecution in the state court from the fact that from misinformation
or lack of good judgment he transcended his authority”).
In concluding that Tanella did no more than
was necessary and proper, the district court found that: (1) there was no “evidence
to undermine Tanella’s subjective belief that his action was reasonable under
the circumstance[s];” and (2) Tanella’s belief that Dewgard was reaching for
his (i.e., Tanella’s) gun was objectively reasonable in light of all the
circumstances. Tanella, 281 F. Supp. 2d
at 621-23 . In so ruling, the court concluded that “the facts that are disputed
do not bear on the issue of immunity. “
Id. at 622 .
On appeal, the State attacks the district
court’s rulings. As to Tanella’s subjective belief, the State contends that a
reasonable finder of fact could conclude that Tanella did not actually believe
that Dewgard was reaching for his (Tanella’s) gun. As to the objective
reasonableness of the shooting, the State argues that material factual disputes
exist which a jury should resolve.
In reviewing this matter, we view the
evidence in the light most favorable to the State and assume the truth of the
allegations in the indictment. See Boyce Motor Lines, Inc. v. United States,
342 U.S. 337, 343 n. 16, 96 L. Ed. 367, 72 S. Ct. 329 (1952); Morgan v.
California, 743 F.2d 728, 733 (9th Cir. 1984). However, we are mindful that
once a threshold defense of immunity is raised, the State bears the burden of “coming
forward with an evidentiary showing sufficient at least to raise a genuine
factual issue whether the federal officer was . . . doing no more than what was
necessary and proper for him to do in the performance of his duties.” Long, 837
F.2d at 752. Moreover, the State cannot meet its burden “merely by way of
allegations. “ Id.; see also City of
Jackson v. Jackson, 235 F. Supp. 2d 532, 534 (S.D. Miss. 2002) (stating that
when a “Supremacy Clause immunity defense [is raised] by way of motion to
dismiss, the district court should grant the motion in the absence of an
affirmative showing by the state that the facts supporting the immunity claim
are in dispute”).
Because we hold, as a matter of law, both that Tanella honestly
believed his life to be in danger and
that his belief was objectively reasonable, we affirm the judgment of the
district court.
A.
Prior “Necessary and Proper” Case Law
The defense of Supremacy Clause immunity
from state prosecution has been recognized since the landmark case of In re
Neagle, 135 U.S. 1, 34 L. Ed. 55, 10 S. Ct. 658 (1890). There, Supremacy Clause
immunity was granted to David Neagle, a deputy United States Marshal, charged
with protecting a Supreme Court justice who had been threatened by a
dissatisfied litigant. While in the dining car of a train, the litigant
approached the justice from behind and “struck him a blow on the side of his
face, which was repeated on the other side.” Id. at 53. Neagle shouted, “‘Stop! Stop! I am an officer!’” Id. The litigant
then turned toward Neagle and “immediately turned his hand to thrust it in his
bosom, as Neagle felt sure, with the purpose of drawing a bowie-knife.” Id. At
that moment, “Neagle fired two shots from his revolver into the body of [the
litigant],” who was subsequently found to be unarmed. Id. Concluding that
Neagle “did no more than what was necessary and proper for him to do,” the
Court held that he was “innocent of any crime against the laws of the State”
and thus affirmed the issuance of a writ of habeas corpus. Id. at 75-76.
Applying Neagle, the Ninth Circuit in
Clifton v. Cox, 549 F.2d 722 (9th Cir. 1977), accorded DEA Agent Lloyd Clifton
immunity from state prosecution for shooting a fleeing suspect in the back and
killing him, in the mistaken belief that the suspect had shot Clifton’s
partner. Id. at 724, 730. In the moments leading up to the shooting, Clifton
and his partner arrived outside the house of the drug suspect who was thought
to be armed. Id. at 724. Clifton’s partner tripped and fell at the same moment
that Clifton heard a loud noise. Id.
Believing that the suspect had shot his partner, Clifton forced his way into
the suspect’s house by kicking down the door, shouted “Halt” twice, and then
shot the suspect as he fled into the woods. Id. The suspect was unarmed. Id. In
affirming the grant of a writ of habeas corpus to Clifton, the court determined
that Clifton lacked criminal intent and enjoyed federal immunity under the
Neagle test, despite his error and “even though his acts may have exceeded his
express authority.” Id. at 728.
In contrast, in United States ex rel. Drury
v. Lewis, 200 U.S. 1, 50 L. Ed. 343, 26 S. Ct. 229 (1906), on which the State
relies, the Supreme Court denied habeas relief based on federal immunity to two
army officers because the government cited testimony which, if credited, would
have defeated their immunity defense. Id. at 8 (noting the parties’ concession
that if the victim had surrendered, a fact which was in dispute, “it could not
reasonably be claimed that the fatal shot was fired in the performance of a
duty imposed by the Federal law”). Specifically, two eyewitnesses testified
that an Army Lieutenant ordered one of his enlisted men to shoot a suspected
thief. According to the testimony, the suspect, who had been fleeing, “stopped,
turned around facing the pursuing soldier . . ., threw up his hand, [and] said,
‘Don’t shoot,’ ‘I will come back,’ or ‘I will give up’”; but, “just then,” the
Lieutenant ordered the shooting. Id. at 4. Thus, the prosecutor’s evidence
showed that the unarmed suspect was not only standing at a distance with his
hands in the air but was also orally surrendering when the Lieutenant ordered
the enlisted man to discharge his firearm.
The State likewise relies on Morgan v.
California, 743 F.2d 728 (9th Cir. 1984), a habeas case in which the resolution
of factual disputes was central to
determining both whether the agents were acting within the scope of their
duties and whether their actions were no more than was necessary and proper for
the performance of those duties. Id. at 733. In Morgan, two federal agents
backed their car into a parked car. A dispute ensued, culminating in the agents’
being charged with seven misdemeanor counts, including assault with a deadly
weapon and displaying a gun in a threatening manner. Id. at 729-30. The court
held that the agents were not entitled to federal immunity because it was “hotly
disputed” whether they were intoxicated, whether they were acting within the
scope of their duties, and whether the occupant of the parked car ever
displayed a weapon, as well as several other material issues. Id. at 733-34
(internal quotation marks omitted).
B.
Application of the “Necessary and Proper” Test
Reviewing all the evidence here, we find
that no version of the events of May 1, 2002 proffered by the State removes
Tanella from the ambit of In re Neagle and its progeny. n1
1) Subjective Component
First, regarding Tanella’s subjective belief, the State relies on
eyewitness testimony that Dewgard was moving away from Tanella to demonstrate
that Tanella did not actually believe that Dewgard was reaching for his
(Tanella’s) gun. The State focuses primarily on the testimony of Edward John in
arguing that Dewgard “managed to get two or more steps away from [Tanella] when
[Tanella] shot Dewgard in the back.” Based on John’s testimony, the State
contends that Tanella unjustifiably shot Dewgard to prevent his escape.
John’s testimony that Dewgard was beginning
to move away from Tanella, however, fails to raise a genuine issue of fact
about Tanella’s state of mind when he shot Dewgard. See Long, 837 F.2d at 744.
Indeed, the testimony does not establish that Tanella “acted wantonly” or with “criminal
intent.” In re Fair, 100 F. 149, 155 (D. Neb. 1900). Nor does the testimony
suggest that Tanella had any “motive other than to do his job under
circumstances as they appeared to him.” Long, 837 F.2d at 744; see also In re
Lewis, 83 F. 159, 160 (D. Wash. 1897) (“Where
there is no criminal intent on his part he does not become liable to answer to
the criminal process of a different government.”).
Even eyewitness testimony that Tanella said
to Dewgard, “‘I’m gonna shoot you,’” is insufficient to establish criminal
intent or improper motive under the circumstances. John, Barbara Gurly, and
Jewel Wallace testified that at some point during the struggle, Tanella
threatened to shoot unless Dewgard froze and submitted to arrest. Gurly also
stated that there was a lag (of approximately four minutes) between Tanella’s
threat and the actual shooting. Regardless of how soon after making the threat
Tanella fired his gun, however, his use of the standard police warning, “Stop,
or I’ll shoot” -- whether made instinctively or to deter further resistance --
is insufficient under these circumstances to raise a genuine issue of fact
about Tanella’s motive. Cf. United States v. D’Amato, 39 F.3d 1249, 1257,
1259-60 (2d Cir. 1994) (finding insufficient mens rea for mail fraud because
evidence was “‘at least as consistent with innocence as with guilt’” (quoting
United States v. Mulheren, 938 F.2d 364, 372 (2d Cir. 1991))). Nor,
significantly, does the State highlight this testimony as evidence of criminal
intent. In the absence of additional evidence, we conclude that the State has
failed to cast doubt on Tanella’s state of mind.
2) Objective Component
Second, as to the objective reasonableness
of Tanella’s belief, the State contends that the district court erred in taking
from a jury the narrow factual question of precisely what occurred at the
moment of the shooting. However, we are persuaded, as was the district court,
that this factual dispute is immaterial to the reasonableness of Tanella’s
belief. See Clifton, 549 F.2d at 728 (granting motion to dismiss indictment
where “resolution of [] factual conflicts” regarding when the suspect “took
flight” was “immaterial to the resolution of the ultimate issue of whether
petitioner employed means which he could consider reasonable in the discharge
of his duty”).
It is undisputed that, during the crucial
moments immediately before the shooting, Tanella and Dewgard were struggling
between two parked vehicles. Viewed in the light most favorable to the State,
the witness testimony was that Dewgard “tried to run,” “turned to run,” or “looked
like he wanted to . . . run” at the instant that Tanella shot him. The State
also emphasizes the testimony of Edward John to support the proposition that “Dewgard
was merely trying to run away” when Tanella killed him.
John testified that Dewgard actively
resisted arrest and that he “push [sic] the cop and turned to run across the
street, and he want [sic] to make two or three steps away from the cop when the
cop shoot [sic] him in the back.” Subsequently, he added that Dewgard “turn
[sic] away from [Tanella], maybe three or four steps.” According to the State’s
characterization, “John testified that Dewgard had taken two or more steps away
from [Tanella] before [Tanella] shot Dewgard in the back.” As a result, the State
contends that a jury should decide whether Tanella’s justification for
discharging his firearm was reasonable.
As noted earlier, we assume the credibility
of the State’s witnesses. Cf. United States v. Shulman, 624 F.2d 384, 388 (2d
Cir. 1980) (stating that “normally the resolution of issues of credibility is
exclusively the province of the jury”). We decline, however, to credit the
State’s incomplete paraphrasing of witness testimony, except to the extent that a rational jury could do so.
We assume that a rational juror might
accept the State’s characterization that Dewgard was “two or more steps away”
from Tanella at the moment he was shot, but we note that, in the same portions
of the transcript, John testified that: (1) Tanella took out his firearm and
shot Dewgard when Dewgard turned around and pushed him; and (2) Dewgard and
Tanella were in close proximity when Tanella discharged his firearm. See Tr. of
Grand Jury Testimony of Edward John, at 21 (“He was very close up to him.”);
id. at 22 (Dewgard and Tanella were “close up, very close up”).
Accordingly, viewed in the light most
favorable to the State, all that John’s testimony suggests is that during the
hand-to-hand struggle, Tanella discharged his firearm immediately after Dewgard
pushed him, turned, and took a few steps, but that the two men remained in
close proximity at all times. n2 As such, John’s testimony and that of the
other eyewitnesses do not raise a triable issue of fact on Tanella’s
entitlement to Supremacy Clause immunity.
To reiterate, the issue is not whether
Dewgard was actually beginning to run, but whether Tanella’s belief that
Dewgard was about to grab his (Tanella’s) gun was reasonable from Tanella’s
viewpoint. See Long, 837 F.2d at 745 (stating that immunity applies where
petitioner “had no motive other than to discharge his duty under the
circumstances as they appeared to him and that he had an honest and reasonable
belief” that his actions were necessary and proper (quoting Petition of
McShane, 235 F. Supp. 262, 274 (N.D. Miss. 1964)) (emphasis added)).
An analysis of the testimonial evidence in
conjunction with the undisputed surrounding circumstances compels the
conclusion that Tanella’s belief was reasonable. It is undisputed that Tanella
knew Dewgard to be a seasoned drug dealer and Tanella experienced first-hand
his violent efforts to avoid arrest. Tanella saw Dewgard drive recklessly to
evade police capture and nearly hit a pedestrian and her child in the process.
Dewgard further demonstrated his criminal tenacity by fleeing from an armed
police officer while carrying a large bag suspected of containing three
kilograms of cocaine, as well as by choosing to engage Tanella in a fist-fight
rather than submit to arrest. It is clear that the close-quarter situation was
hardly conducive to detached deliberation; any reaction by Tanella was
necessarily made on a split-second
basis. Under these tense and perilous circumstances, Tanella’s
perception that Dewgard was reaching for his (Tanella’s) gun was objectively
reasonable as a matter of law. Cf. Graham v. Connor, 490 U.S. 386, 396-97, 104
L. Ed. 2d 443, 109 S. Ct. 1865 (1989) (“The ‘reasonableness’ of a particular
use of force must be judged from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight . . . . allowing for the
fact that police officers are often forced to make split-second judgments--in
circumstances that are tense, uncertain, and rapidly evolving . . . .”).
In sum, viewed in the light most favorable
to the State, the witness testimony establishes no more than that Tanella fired
his gun after Dewgard pushed him, turned, and took two or more steps away from
Tanella. Given the circumstances surrounding the shooting, such evidence is
insufficient to defeat Tanella’s federal immunity defense that during the
course of the close-quarter struggle he honestly and reasonably judged Dewgard’s
sudden movement to be an attempt to reach for his (Tanella’s) gun.
We need not and do not decide that Tanella
correctly evaluated the circumstances, but only that he honestly and reasonably
perceived Dewgard as a threat to his life. See Clifton, 549 F.2d at 728 (noting
that immunity “does not require [an officer] to show that his action was in
fact necessary or in retrospect justifiable, only that he reasonably thought it
to be”); Lipsett, 156 F. at 71 (stating that a federal officer is “not liable
to prosecution in the state court from the fact that from misinformation or
lack of good judgment he transcended his authority”).
Because we hold that Tanella did no more than was necessary and proper
in the performance of his official duties as a DEA Agent, Tanella is immune
from state prosecution.
The district court’s holding that Tanella
is entitled to federal immunity under the Supremacy Clause is hereby AFFIRMED.
Notes:
1. We
note that the Supremacy Clause immunity principles enunciated in the habeas
context apply equally to a Rule 12(b) motion to dismiss an indictment in a case
removed under 28 U.S.C. § 1442. See Long, 837 F.2d at 751-52 (finding the
purpose of the habeas corpus provisions “much the same as the purpose
underlying the removal provisions” and applying Neagle principles to a Rule
12(b) motion to dismiss based on Supremacy Clause immunity); Whitehead, 943
F.2d at 233 (describing the habeas and removal provisions in the Supremacy
Clause context as “alternative[s]”).
2.
Based on John’s testimony, the State approximated the distance between Dewgard
and Tanella as “four squares” -- i.e., four courtroom floor tiles. As the
district court pointed out, however, the exercise of counting floor tiles
without giving the dimensions of such tiles has limited value. Tanella, 281 F. Supp. 2d at 618 n. 8 (“Referring to floor tiles, without at least
stating the dimensions of one tile, leaves too much to guesswork.”).
Counsel