51 F.3d 1346 (7th Cir. 1994)
On June 27, 1991, Police Officer Mary Lu Redmond responded alone to a dispatcher's report of a fight in progress at the Grand Canyon Estates apartment complex in the Village of Hoffman Estates, Illinois.1 Upon arrival, she learned from two women that there had been a stabbing inside the building and requested backup and an ambulance.2
As Redmond approached the apartment building, five men ran out the front door yelling and screaming. One of the men was waving a pipe above his head. Almost immediately thereafter, two more men — a Caucasian man followed by an African-American man in hot pursuit — came running out of the door of the building.3 Officer Redmond testified that she ordered Allen to drop the knife multiple times before firing a single shot when he began the downward motion with the knife.4 Allen fell to the ground, and a butcher knife was later observed near his body by arriving officers.5 Allen's siblings who witnessed the event testified that Allen was unarmed at the time of the shooting.6
After the incident, Officer Redmond sought counseling from Karen Beyer, a licensed clinical social worker employed by the Village, meeting with her two or three times per week for several months.7 During pretrial discovery, the plaintiffs, who are the surviving family members of Ricky Allen, Sr., learned of the counseling sessions and subpoenaed Beyer for her notes and testimony.8 The defendants moved to quash the subpoena asserting privilege, but the district court denied the motion, ordered production, and later permitted unrestricted inquiry into the communications.9
When the defendants did not fully comply, the court instructed the jury that it could presume the notes would be unfavorable to the defendants.10 The jury returned a verdict awarding $45,000 on the federal claim and $500,000 on the state wrongful death claim.11 Officer Redmond and the Village appealed the judgment to the United States Court of Appeals for the Seventh Circuit, raising challenges to the deadly force jury instruction and the refusal to recognize the counseling privilege.12
Whether the district court erred in instructing the jury on the use of deadly force?13
Excessive force claims under the Fourth Amendment are analyzed under the objective reasonableness standard.14 The objective reasonableness of a police officer's actions depends upon the information the officer possessed immediately prior to and at the very moment she fired the fatal shot. This is judged from the perspective of a reasonable officer on the scene rather than with the 20/20 vision of hindsight. A police officer's subjective intentions are irrelevant.15 The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments in circumstances that are tense, uncertain, and rapidly evolving about the amount of force that is necessary in a particular situation.16
No. The instruction the district court gave was adequate. It directed the jury to consider all the facts and circumstances with which Mary Lu Redmond was confronted. The jury was to judge the reasonableness from the perspective of a reasonable police officer at the moment the force was used. The question posed was whether a reasonable officer in her place would have believed that the force was necessary to prevent death or great bodily harm.17
This formulation correctly applied the objective standard from the perspective of a reasonable officer on the scene without regard to subjective intentions. It covered the essential legal points without misleading the jury, although additional language emphasizing split-second judgments could have been included.18
The district court did not err in instructing the jury on the use of deadly force.19
Whether the district court erred by refusing to recognize a privilege for confidential communications between Officer Redmond and the licensed clinical social worker from whom she sought counseling?20
Under Federal Rule of Evidence 501, evidentiary privileges are determined by the common law as interpreted by the courts in light of reason and experience, which supports recognition of a psychotherapist-patient privilege extending to licensed clinical social workers when the patient's privacy interests in confidential treatment outweigh the evidentiary need for disclosure.21
Yes. Reason and experience compel recognition of the privilege because the psychotherapist-patient relationship requires assurance that innermost thoughts may be revealed without fear of disclosure for treatment to succeed.22 All fifty states have adopted some form of the privilege.23 Illinois law expressly extends it to communications with licensed clinical social workers.24
In this case the plaintiffs' need for the communications was cumulative because multiple eyewitnesses testified about the shooting and Officer Redmond herself testified at trial.25 Her privacy interests remained substantial after seeking counseling for a traumatic line-of-duty incident.26 The balance therefore favored the privilege, making the adverse-inference instruction improper.27
The district court erred by refusing to recognize a privilege for confidential communications between Officer Redmond and the licensed clinical social worker from whom she sought counseling.28