Franco v. Gunsalus

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MARIO FRANCO, Plaintiff, v. POLICE OFFICER JOHN GUNSALUS and POLICE OFFICER SHAWN KELLEY, Defendants.

No. 5:16-CV-634 (FJS/TWD)

United States District Court, N.D. New York

January 10, 2022

APPEARANCES

THE LAW OFFICE OF FRED LICHTMACHER, P.C. Attorneys for Plaintiff

BERGSTEIN & ULLRICH, ESQ. Attorneys for Plaintiff.

HANCOCK ESTABROOK LLP Attorneys for Defendants

OFFICE OF THE CORPORATION COUNSEL - CITY OF SYRACUSE Attorneys for Defendants

OF COUNSEL

FRED B. LICHTMACHER, ESQ.

STEPHEN BERGSTEIN, ESQ.

JOHN G. POWERS, ESQ. MARY L. D'AGOSTINO, ESQ.

TODD M. LONG, ESQ. DANIELLE B. PIRES, ESQ.

MEMORANDUM-DECISION AND ORDER

Frederick J. Scullin Jr. Senior United States District Judge

I. INTRODUCTION AND BACKGROUND

Plaintiff commenced this action in June 2016 alleging claims against the City of Syracuse and Defendants John Gunsalus and Shawn Kelley (hereinafter collectively referred to as Defendants) alleging that they violated his constitutional rights by using excessive force, failing to intervene, falsely arresting him, and maliciously prosecuting him, among other things. See Dkt. No. 1, Compl., at ¶¶ 24-72. The allegations arose out of an incident in July 2014, when Defendants arrested Plaintiff while he was outside of a party on Victoria Place, near the Syracuse University campus. See Id. at ¶¶ 10-23. Plaintiff's failure to intervene claim against Defendant Kelly and his false arrest, excessive force, and malicious prosecution claims against both Defendants survived Defendants' motion for summary judgment. See Dkt. No. 87.

During the trial, Plaintiff presented evidence from seven witnesses and introduced nine exhibits, and Defendants presented evidence from eight witnesses and introduced more than thirty exhibits. The jury returned a verdict on the sixth day of trial, July 20, 2021, finding Defendant Gunsalus liable for false arrest, use of excessive force, and malicious prosecution. See Dkt. No. 172 at 1-2. The jury also found Defendant Kelley liable for false arrest but did not find him liable for failure to intervene or malicious prosecution. See Id. at 2. In response to various special interrogatories, the jury found that Defendants did not prove, by a preponderance of the evidence, that (1) Plaintiff ignored verbal commands from Defendant Gunsalus to leave the roadway on Victoria Place; (2) Defendant Gunsalus was identifiable as a police officer when he approached Plaintiff; (3) Defendant Gunsalus had a justifiable belief that Plaintiff had observed lights on the police vehicle or heard the instructions via the intercom to disperse; (4) Plaintiff exerted some pressure on Defendant Gunsalus - either pushing or pulling - by placing his hands on Defendant Gunsalus's uniform sleeves or upper arms; and (5) Defendant Gunsalus struck Plaintiff only once in the head and once in the body. See Dkt. No. 173 at 1-2. On the issue of damages, the jury awarded Plaintiff $5, 000 in compensatory damages as a result of Defendant Gunsalus's actions and $1.00 in nominal damages as a result of Defendant Kelley's actions. See Dkt. No. 172 at 3-4.

On August 17, 2021, Plaintiff filed the pending motion for a new trial on punitive damages pursuant to Rule 59(a)(1) of the Federal Rules of Civil Procedure. See Dkt. No. 187. If the Court grants that motion, Plaintiff further asks, pursuant to Rule 37, that the Court permit him to introduce evidence at the new trial that Defendant Gunsalus placed a hard object against Plaintiff's throat shortly before subjecting him to the use of excessive force. See id.

Less than a week later, on August 23, 2021, Defendants filed the pending motion for judgment as a matter of law ("JMOL") pursuant to Rule 50(b) or, in the alternative, for a new trial pursuant to Rule 59. See Dkt. No. 192. Defendants additionally requested the Court's ruling on the affirmative defense of qualified immunity. See Dkt. No. 194, Def's Memorandum in Support of JMOL, at 6.

II. DISCUSSION

A. Defendants' motion for judgment as a matter of law

"'To warrant post-verdict judgment as a matter of law, the movant must show that the evidence, when viewed most favorably to the non-movant, was insufficient to permit a reasonable juror to have found in the non-movant's favor.'" Moore v. Keller, No. 5:16-CV-1230, 2021 U.S. Dist. LEXIS 168700, *4 (N.D.N.Y. Sept. 7, 2021) (Hurd, J.) (quoting Conte v. Emmons, 895 F.3d 168, 171 (2d Cir. 2018)). "This is a 'particularly heavy burden where, as here, the jury has deliberated in the case and actually returned its verdict in favor of the non-movant.'" Carroll v. Cnty. of Monroe, 712 F.3d 649, 651 (2d Cir. 2013) (quoting Cash v. Cnty. of Erie, 654 F.3d 324, 333 (2d Cir. 2011) (internal quotation marks omitted)). "Therefore, [the court] may set aside a verdict 'only if there exists such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or the evidence in favor of the movant is so overwhelming that reasonable and fair minded persons could not arrive at a verdict against it.'" Id. (quoting [Cash, 654 F.3d at 333] (internal quotation marks omitted)).

Defendants claim that they are entitled to JMOL both based on the facts and evidence established at trial and on the issue of qualified immunity, an affirmative defense they had previously raised and on which the Court reserved judgment. "'Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was "clearly established" at the time of the challenged conduct.'" Ricciuti v. Gyzenis, 834 F.3d 162, 167 (2d Cir. 2016) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (citation omitted)) (other citation omitted). Even if the right was clearly established, a defendant is entitled to qualified immunity if "'it was objectively reasonable for the [official] to believe the conduct at issue was lawful.'" Rodriquez v. McKoy, No. 9:15-CV-0610 (MAD/TWD), 2021 U.S. Dist. LEXIS 195917, *30 (N.D.N.Y. Oct. 12, 2021) (D'Agostino, J.) (quoting Phillips v. Wright, 553 Fed.Appx. 16, 17 (2d Cir. 2014)) (other citation omitted).

1. Whether Defendants are entitled to JMOL or qualified immunity on Plaintiff's false arrest claim

"Under New York law, an action for false arrest requires that the plaintiff show that '(1) the defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged.'" Ackerson v. City of White Plains, 702 F.3d 15, 19 (2d Cir. 2012) (quoting Broughton v. State of New York, 37 N.Y.2d 451, 456, 335 N.E.2d 310, 373 N.Y.S.2d 87 (1975)). "Probable cause 'is a complete defense to an action for false arrest' brought under New York law or § 1983." Id. (quoting Weyant, 101 F.3d at 852 (internal quotation marks and citation omitted)); see Hulett v. City of Syracuse, 253 F.Supp.3d 462, 494 (N.D.N.Y. 2017) (Hurd, J.). "'Put another way, an arresting officer will find protection under the defense of qualified immunity unless "no reasonably competent officer" could have concluded, based on the facts known at the time of the arrest, that probable cause existed.'" Moore, 2021 U.S. Dist. LEXIS 168700, *13-*14 (quoting Figueroa v. Mazza, 825 F.3d 89, 100 (2d Cir. 2016)). Notably, whether the defendant had probable cause is "'viewed from the standpoint of an objectively reasonable police officer.'" Benn v. Kissane, 510 Fed.Appx. 34, 37 (2d Cir. 2013) (summary order) (quoting Ornelas, 517 U.S. at 696) (other citation omitted).

Plaintiff claims that he was falsely arrested for violating the following four sections of New York's Penal Law: disorderly conduct with respect to both obstructing traffic and refusing to comply with a lawful order; harassment in the second degree; and resisting arrest. Under New York law, "[a] person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof . . . [h]e obstructs vehicular or pedestrian traffic; or . . . [h]e congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse. . . ." N.Y. Penal L. § 240.20(5)- (6). Furthermore, "[a] person is guilty of resisting arrest when he intentionally prevents or attempts to prevent a police officer . . . from effecting an authorized arrest on himself or another person." N.Y. Penal L. § 205.30. Finally, "[a] person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person . . . [h]e or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same[.]" N.Y. Penal L. § 240.26(1).

With respect to Plaintiff's false arrest claim, the Court instructed the jury on these sections of the Penal Law and charged the jury with the following: "If you find that the Defendant you are considering had reasonable cause to arrest Plaintiff for Disorderly Conduct or Harassment in the Second Degree, then you must find that the arrest was lawful, regardless of whether Plaintiff was convicted of the crimes for which he was arrested." See Dkt. No. 168 at 13. Furthermore, with respect to resisting arrest, the Court instructed the jury as follows:

[I]t is not unlawful to resist an unauthorized arrest. Therefore, if you find that the Defendant you are considering did not have reasonable cause to arrest Plaintiff for Disorderly Conduct or Harassment in the Second Degree, then you must also find that that Defendant did not have reasonable cause to arrest Plaintiff for Resisting

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