10-4833-cv

Carvajal v. Mihalek

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY

FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN

CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE

EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION

“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON

ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held

at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of

New York, on the 21st day of December, two thousand eleven.

PRESENT: JOSEPH M. McLAUGHLIN,

GUIDO CALABRESI,

REENA RAGGI,

Circuit Judges.

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ROBERT CARVAJAL,

Plaintiff-Appellant,

v. No. 10-4833-cv

DONALD MIHALEK, in his individual and official

capacity, THOMAS RIZZA, in his individual capacity,

Defendants-Appellees,

HUGH DUNLEAVY, in his individual and official

capacity, TIMOTHY RAYMOND, in his individual and

official capacity, DANIEL HUGHES, in his individual

capacity, TREVA LAWRENCE, in his individual capacity,

JOHN TANI, in his individual capacity, DON MCGEE, in

his individual capacity,

Defendants.

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APPEARING FOR APPELLANT: JAMES B. LEBOW, Esq., New York, New York.

APPEARING FOR APPELLEES: TARA M. LAMORTE, Assistant United States

Attorney (Sarah S. Normand, David S. Jones,

Assistant United States Attorneys), on behalf of

Preet Bharara, United States Attorney for the

Southern District of New York, New York, New

York.

Appeal from a judgment of the United States District Court for the Southern District

of New York (Paul A. Crotty, Judge). 

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on November 23, 2010, is AFFIRMED.

In this Bivens action, plaintiff Robert Carvajal appeals from a judgment entered after

trial in favor of defendants Donald Mihalek and Thomas Rizza on claims that each agent

used excessive force when he shot Carvajal in the course of executing a search warrant.1

Carvajal faults the district court’s denial of his motions for judgment as a matter of law and

to set aside the jury verdict. We review these rulings de novo, applying the same standard

as the district court and viewing the facts in the light most favorable to defendants. See Cash

v. County of Erie, 654 F.3d 324, 332–33 (2d Cir. 2011). We will set aside the verdict only

if there exists such a complete absence of supporting evidence that the jury’s findings could

only have been the result of sheer surmise and conjecture, or the evidence in favor of

1

 The search yielded evidence of a counterfeiting conspiracy, which used the money

produced to purchase narcotics sold for profit. Robert Carvajal pleaded guilty to one count

of uttering counterfeit currency, and his brother, Joseph, was convicted after trial of various

counterfeiting and narcotics crimes.

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Carvajal is so overwhelming that reasonable and fair minded persons could not arrive at a

verdict against him. See id. at 333. Insofar as Carvajal challenges evidentiary rulings at trial,

we review for abuse of discretion and “will reverse only if an erroneous ruling affected a

party’s substantial rights.” Marcic v. Reinauer Transp. Cos., 397 F.3d 120, 124 (2d Cir.

2005). In applying these standards, we assume familiarity with the facts and record of prior

proceedings, which we reference only as necessary to explain our decision to affirm.

 1. Judgment as a Matter of Law

The Fourth Amendment prohibits the use of unreasonable, and therefore excessive,

force in the course of performing a search or seizure; force is excessive when its application

is objectively unreasonable in light of the facts and circumstances confronting law

enforcement officers. See Graham v. Connor, 490 U.S. 386, 395–97 (1989); accord Tracy

v. Freshwater, 623 F.3d 90, 96 (2d Cir. 2010). Where, as here, officers use deadly force,

their decision is objectively reasonable only if the officers have probable cause to believe

from the facts then known to them that the suspect poses a significant threat of death or

serious physical injury to the officer or others. See Cowan ex rel. Estate of Cooper v. Breen,

352 F.3d 756, 762 (2d Cir. 2003) (recognizing that use of deadly force often involves “splitsecond” decisions (internal quotation marks omitted)). Assuming, as we must, that the jury

credited defendants’ testimony and discredited plaintiff’s, the record permitted a reasonable

jury to find the requisite probable cause to support defendants’ use of deadly force. 

Before entering the apartment where they found the Carvajal brothers, Mihalek and

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Rizza had learned from official records and a confidential informant with direct knowledge

that Joseph Carvajal, who lived in or used the apartment to be searched, had three convictions

for violent crimes committed with deadly weapons, and was reputed to carry a firearm at all

times. Before the shooting, plaintiff and his brother Joseph failed to admit officers who

knocked on the door of the apartment, identified themselves as police, and stated that they

were in possession of a search warrant. The officers then used a battering ram to gain entry

into the apartment, whereupon the brothers ignored the directive, “Police, get down,” Trial

Tr. 333:12–17, 372:18–19, 495:14–15, and started to move to an adjoining room. At that

point, defendant Mihalek saw that plaintiff was holding a firearm and, believing he intended

to shoot, Mihalek fired once at Robert Carvajal, striking him, before plaintiff moved out of

Mihalek’s view. Rizza heard the gunshot, saw a white muzzle flash, and heard someone

shouting “shots fired,” which led him to believe that the Carvajals had opened fire on the

officers. Plaintiff then moved quickly toward Rizza and squared his shoulders. Believing

that plaintiff was about to shoot, Rizza fired his weapon and felled Carvajal.

Carvajal counters that no reasonable jury could have credited Mihalek’s testimony that

plaintiff was holding a firearm because it was uncorroborated. The argument fails because

it views the evidence in the light most favorable to plaintiff rather than the defendants, as the

law requires. See Zellner v. Summerlin, 494 F.3d 344, 371 (2d Cir. 2007); see also United

States v. Florez, 447 F.3d 145, 155 (2d Cir. 2006) (holding that jury’s verdict may be

supported “by the uncorroborated testimony of even a single accomplice witness” (internal

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quotation marks omitted)). In any event, although no firearm was recovered in the Carvajals’

apartment, Jonathan Wackrow, an officer stationed outside, saw a gun and a printer fall to

the ground soon after the shots were fired, and he observed that the only open window on the

side of the building from which the items fell belonged to the Carvajals’ apartment.2

 Those

facts, as well as Mihalek’s identification of the recovered firearm as the one Robert Carvajal

was holding, corroborate Mihalek’s statement that he shot plaintiff because he brandished

a gun at the police. 

Carvajal’s attempt to undermine this corroboration was properly argued to the jury,

but we cannot say as a matter of law that the jury was compelled to accept that argument. 

We similarly reject Carvajal’s contention that the jury could not reasonably have credited

Rizza’s proffered fear that plaintiff would shoot him because Rizza never saw Carvajal

holding a weapon. The jury was entitled to credit Rizza’s testimony that his range of vision

was limited, that events were happening too quickly for him to examine Carvajal thoroughly

before firing defensively, and that such firing was a reasonable response to his belief that

shouts of “shots fired” referred to action by the Carvajals.

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 (1985) (holding that, if officers have probable cause to believe

2

 Officer Wackrow’s testimony was itself corroborated by the testimony and recorded

statements of plaintiff and his brother.

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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. Trial Tr. 333:12–17, 372:18–19, 495:14–15. 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. 

2. Evidentiary Rulings

Defendants contend that we lack jurisdiction to consider Carvajal’s challenge to

evidentiary rulings because those issues were not identified in plaintiff’s notice of appeal.

The point merits little discussion because even if we construe the notice of appeal liberally

to include Cavajal’s challenges to the evidentiary rulings, see Peter F. Gaito Architecture,

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LLC v. Simone Dev. Corp., 602 F.3d 57, 62–63 (2d Cir. 2010), plaintiff’s arguments fail on

the merits.

A. Settlement Evidence

Carvajal submits that evidence that he settled an automobile accident claim following

his arrest for $900,000 should have been excluded as more prejudicial than probative. See

Fed. R. Evid. 403.3 We disagree. The settlement evidence was probative as to the cause of

head injuries complained of by Carvajal and not unfairly prejudicial so as to make admission

an abuse of discretion.4

 Nor was the settlement evidence prohibited by Fed. R. Evid. 408,

which permits such evidence to be received “for a purpose other than to prove or disprove

the validity of the claims that the [agreement was] meant to settle.” Trebor Sportswear Co.

v. The Limited Stores, Inc., 865 F.2d 506, 510 (2d Cir. 1989). Here, the district court did not

abuse its “broad” discretion in admitting the settlement evidence for this permissible purpose. 

Id. at 511. Defendants did not seek to disprove the validity of the claims Carvajal settled. 

Rather, they questioned Carvajal about the automobile accident settlement to contest the

validity of damages claimed in his Bivens suit. That use of settlement evidence is not

3

 Because the Federal Rules of Evidence “apply to proceedings in United States

courts,” Fed. R. Evid. 101, we do not consider Carvajal’s further argument that admission

of settlement evidence violated New York law. 

4

 In the car accident case, Carvajal stated that he sustained neurological injuries in that

occurrence, not in the shooting, which he described as causing only a “tissue graze.” By

contrast, in the Bivens trial, Carvajal testified that the car accident injuries were principally

to his ankle.

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proscribed by Rule 408 and does not upset “the public policy of encouraging settlements and

avoiding wasteful litigation” that the rule was designed to further. Id. at 510. 

Finally, even if we were to identify error, we would deem it harmless because the jury

ultimately decided this case against Carvajal on liability grounds, i.e., it found that neither

defendant used excessive force. Any erroneous admission of settlement evidence was

irrelevant to that decision and, thus, did not affect Carvajal’s “substantial rights.” Marcic v.

Reinauer Transp. Cos., 397 F.3d at 124. 

B. Preclusion of Nicole Perrotta’s Testimony

Carvajal challenges the district court’s invocation of estoppel to preclude his

girlfriend, Nicole Perrotta, from testifying about the search at issue. Carvajal maintains that

the district court precluded Perrotta from testifying even on issues that Judge Hellerstein had

not decided against him in the criminal case. The point merits little discussion because any

error was harmless. 

“Whether an evidentiary error implicates a substantial right depends on the likelihood

that the error affected the outcome of the case.” United States v. Miller, 626 F.3d 682, 690

(2d Cir. 2010) (internal quotation marks omitted). Although the jury asked to review

Perrotta’s deposition testimony, which was refused as not in evidence, there is no reason to

think that the jury would have altered its findings had Perrotta testified consistent with her

deposition. 

There was direct and circumstantial evidence that Carvajal was armed when the

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officers entered his apartment: Mihalek saw him holding a weapon, Wackrow saw a gun fall

to the ground outside the apartment building, the only open window belonged to the

Carvajals’ apartment, and the transcript of a post-arrest call between Robert and Joseph

Carvajal suggested that plaintiff had been in possession of the gun and his brother Joseph

threw it out the window before surrendering himself. Although Perrotta testified at her

deposition that she did not recall Robert Carvajal ever owning a gun, she acknowledged that

Joseph Carvajal had kept a firearm in the apartment. Moreover, she testified that she had not

been spending much time in the apartment around the time of the shooting, which diminished

the reliability of her assertions that it was unlikely for a gun to have been found there. 

Finally, Perrotta’s deposition testimony that plaintiff was asleep when the officers knocked

on the door is irrelevant to the reasonableness of the shootings at issue. Whether Carvajal

was wide awake or half asleep when the officers forcibly entered the apartment, the fact that

he refused to follow a “get down” order while armed with a gun supported defendants’

objectively reasonable belief that they confronted a threat to their lives. Because Perrotta’s

testimony was thus unlikely to affect the jury’s reasonableness decision, the district court’s

exclusion of it was harmless.

3. Conclusion

We have considered Carvajal’s remaining arguments and conclude that they are

without merit. For the foregoing reasons, the judgment of the district court is AFFIRMED. 

FOR THE COURT:

CATHERINE O’HAGAN WOLFE, Clerk of Court

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