Pena, Marilyn v. Leombruni, Greg

Citation: Not availableDocket: 99-1435

Court: Court of Appeals for the Seventh Circuit; December 29, 1999; Federal Appellate Court

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In the case Marilyn Pena, Administratrix of the Estate of Hugo Pena, Deceased, et al. v. Greg Leombruni, Richard Meyers, and County of Winnebago, the plaintiffs alleged excessive force by police, violating the Fourth Amendment. The jury ruled in favor of the defendants. Deputy Leombruni, responding to reports of the decedent Pena acting irrationally and shoplifting, confronted him after he fled. Following an altercation where Pena brandished a concrete chunk, Leombruni used pepper spray and subsequently shot Pena when he approached. The plaintiffs contended that the sheriff's department's lack of specific instructions for handling irrational individuals constituted a failure that contributed to Pena’s death. However, the court upheld a directed verdict for the sheriff, stating that while failure to instruct could indicate deliberate indifference under 42 U.S.C. § 1983, the sheriff had a clear policy prohibiting deadly force unless there was an imminent threat to life or serious injury. The court concluded that this policy sufficiently protected the rights of individuals deemed irrational, thus negating the plaintiffs' claims of excessive force.

Special measures to neutralize a potentially dangerous person without inflicting harm are desirable; however, failure to implement such measures constitutes mere negligence, which is not actionable under Section 1983. In cases where there is a significant history of police violence against mentally ill individuals, the absence of protective measures may suggest deliberate indifference, but the plaintiffs failed to establish this argument. The trial judge's refusal to allow criminologist David Fogel to testify as an expert on excessive force was based on a belief that his expertise did not pertain to the specific nature of the case. The judge's reasoning was questioned, given Fogel's relevant experience with excessive force complaints. The focus of Fogel's testimony was intended to assess the reasonableness of the officer's actions in response to a direct threat from the individual, not the individual's mental state. Expert testimony is considered admissible only when it assists the jury, but the court found that the jury could independently assess the reasonableness of the officer's response to the threat posed by the individual.

Leombruni's actions were clearly dangerous, raising the issue of whether the threat justified deadly force, which laypersons could assess. The judge's late ruling on the defendants’ motion to exclude expert witness Fogel resulted in the plaintiffs’ inability to secure a substitute expert in time, despite having known for months that Fogel might be excluded. The judge’s delay in ruling on motions in limine typically complicates trial preparations and could lead to reversible error if a continuance is denied; however, in this case, the plaintiffs did not take proactive steps to mitigate potential harm. Furthermore, the plaintiffs failed to demonstrate how an expert could aid the jury in determining the reasonableness of Leombruni's actions.

The plaintiffs also objected to the district court's instruction regarding an officer's use of deadly force, arguing it was incorrect because it did not require the officer’s belief in danger to be reasonable. However, the plaintiffs’ attorney did not adequately articulate this objection to the judge, which forfeited their right to challenge the instruction under Federal Rule of Civil Procedure 51. Despite the flawed instruction, it was concluded that Leombruni's anticipation of lethal danger from his assailant was reasonable, which would not have affected the trial's outcome. The court affirmed the decision.