DocketNumber： 11-CV-3028 (PKC)
Judges： Chen
Filed Date： 2/15/2017
Status： Precedential
Modified Date： 11/7/2024
MEMORANDUM & ORDER
On February 3, 2016, after a seven-day trial, the jury returned a verdict on Plaintiff Larry Jackson’s claims under 42 U.S.C. § 1983 against New York City Police Department Officers Jesus Tellado, Stanley MacNear, John Czulada, James Gherardi, Ryann Dunn, Robert Deferrari, Kenneth Braumann, Ben Kurian, Peter Boneta, Thomas Reo, Michael Failla, and Brian Heerey (collectively, “Individual Defendants”). The jury determined that Jackson had been falsely arrested and subjected to excessive force, and awarded Jackson $12,500,000 in compensatory damages, as well as punitive damages against each Defendant in varying amounts.
Individual Defendants now move for qualified immunity as to each Defendant and each claim. For the reasons set forth below, Defendants’ motion is GRANTED in part and DENIED in part.
The Court assumes the parties’ familiarity with the procedural history of this case and the trial record, and discusses them only to the extent they are relevant to the resolution of the instant motions.
I. PROCEDURAL HISTORY
On June 24, 2011, Jackson filed his complaint against the City of New York and 20 John Doe defendants. (Dkt. 1.) After some initial discovery, Jackson filed his Amended Complaint on March 1, 2013, naming Individual Defendants, as well as Officers Patrick D’Onofrio and Robert E, Russo. (Dkt. 30.)
II. FACTUAL OVERVIEW
A. Testimony of Plaintiff and Several of His Witnesses
On August 21,2010, Plaintiff, an off-duty police officer, hosted a party for his daughter’s twenty-first birthday at his home. (1/27/16 Tr. 17-18, Jackson.) Late in the evening, partygoers congregating in front of Plaintiffs house were approached by a group of people, including a man who appeared to have a gun. (Id. at 23-24; 1/26/16 Tr. 92-93, Strong.) Plaintiff came out of his house to move the group away from his home, but at some point, there was at least one call to the police, placed by Plaintiffs fiancée Charlene Strong, informing them that a man with a gun was outside of their home. (1/26/16 Tr. 14-15, Strong; 1/27/16 Tr. 24, Jackson.)
As Plaintiff returned to his house, two police officers — Defendants Czulada and MacNear — arrived at the home in response to the 911 call. (1/27/16 Tr. 29-31, Jackson.) Plaintiff approached Czulada and MacNear and said to MacNear, “hey, Sarge, I’m MOS” meaning he was a member of the police service. (Id. at 36.) While Plaintiff, Czulada, and MacNear were talking outside, Plaintiffs niece, Tiffanie Johnson, ran out from Plaintiffs home and stated that there were people fighting inside, at which point Plaintiff, Czulada, and MacNear all entered the home. (Id. at 39; 1/28/16 Tr. 78-79, MacNear.)
When Plaintiff got inside, he saw two of the male party guests, Taimar Bonaparte and Jason Wilkinson, on the floor. (1/27/16 Tr. 39-40, Jackson.) After Plaintiff walked into the kitchen to determine what was going on, he turned around to see Czulada
Someone Plaintiff could not see then lifted him up with an ASP baton around his neck. (Id. at 46.) Plaintiff later learned that the person was Defendant Kurian. (Id. at 105.) Kurian kept telling Plaintiff to relax, and Plaintiff kept responding that he was relaxed, but that he couldn’t breathe. (Id. at 47.) Plaintiff and Kurian fell over the arm of the couch onto the couch' and onto Iris Strong, Plaintiffs 79-year-old mother-in-law who was sitting on the couch at that moment and who “passed out.” (1/27/16 Tr. 48-49, 51, Jackson.) While Plaintiff and Kurian were on the couch, Plaintiff felt another officer trying to grab Plaintiffs hands;- (Id. at 49.)
Charlene Strong, testified that when she entered the house, she saw Jackson being choked with a baton, and that Jackson’s “eyes [were] rolling to the back of his head.” (1/26/16 Tr. 107-08, Strong.) She testified that people were yelling, “He’s an officer,” “He’s an officer,” “get off of Larry”, and ‘Why are you choking him?” (Id. at 108-09.) Strong observed that none of the officers in the house were trying to intervene, and were “allowing this process to happen.” (Id. 112.) Tiffanie Johnson, Plaintiffs niece, testified that the cops inside were “yoking [Plaintiff] up,” and “attacking him.” _ (1/29/16 Tr. 18-20, T. Johnson). She testified that one officer “grabbed his. right side, .another one grabbed [Plaintiffs] left side,” and “[aft-other one came behind and choke[d] him.” (Id. at 20.) Marcus Johnson, Plaintiffs nephew, testified that an officer, presumably Kurian, ran in during Plaintiffs altercation with Czulada, “jumped up and threw his baton around [Plaintiffs] neck and pretty much choked him with it to bring him down.” "(1/29/16 Tr. 85-86, M. Johnson.)
The officers let Plaintiff go, at which point he saw two other officers taking Bonaparte out of the house and slamming him against the trunk of a car. (1/27/16 Tr. 53, Jackson.) Plaintiff went to the front door of his house and, from the doorway, said, “Wait a minute, guys”. Plaintiff, was “then ... hit in the back of the head with something” by someone he could not see. (Id. at 54-55.) In response to being struck in the head, Plaintiff ran out of his house and to the street curb. (Id.) He ran past six or seven officers, and knelt down near the curb. (Id. at =56.) As Plaintiff went to reach into his pocket to get his ID, officers started hitting him with batons in the back of his legs and on his back, hitting him “upward of 20, -30 times.” (Id. at 56-57.) Bonaparte observed “more than ten” officers. around Plaintiff in the street, “swinging and hitting [him].” (1/25/16 Tr. 26-27, Bonaparte.) Plaintiff could tell by the pants and shoes of the people hitting him that they were ■ officers. (1/27/16 Tr. 57, Jackson.) Plaintiff lay on his stomach in the street while a semicircle of officers proceeded to hit him with batons and to roll the batons over the back of his ankles. (Id. at 58-60.) Two officers were positioned
■ Strong testified that she saw’the officers in a circle around Plaintiff, with their hands linked together, and that they were hitting him in the head, back, and side with their batons. (1/26/16 Tr; 128-29, Strong.) Marilyn Murphy, Plaintiffs sister-in-law, testified 'that a “whole swarm of police officers ... were beating [Plaintiff] down” and “wouldn’t stop beating on [him]” with billy clubs. (1/29/16 Tr. 57-68, Murphy.) She also testified that she saw the officers use a taser on him. (Id. at 65.) Marcus Johnson testified that the officers pulled Plaintiff outside in handcuffs and started beating him. (1/29/16 Tr. 91, M. Johnson.)
When the officers got off of him, Plaintiff “stuck [his]- arm out” and “let them put the. cuffs” on because he “figured it would be over” and they could “straighten this out.” (1/27/16 Tr. 62, Jackson.)
After he was handcuffed, Plaintiff “looked up to one of the officers” and said “Guys, this was’unnecessary.... I’m a fellow cop, too.” In response, they pepper sprayed him. (Id. at 62.) The officers proceeded to search Plaintiff, at which point Czulada ran over to Plaintiff, called him a “fucking dirt bag”, and said, “If you’re really a cop, where’s your ID?” (Id. at 64.) After, Plaintiff told Czulada that the ID was in his right front pocket, an officer pulled it out of Plaintiffs pocket. (Id. at 64.) As the officer was retrieving the ID, Plaintiff looked up and noticed Defendant Tellado, a captain, standing there, with between seven and nine officers standing around... (Id. at 64-65.) -Plaintiff testified that when Captain Tellado -looked at the ID, he made a “facial gesture” like “oh, shit.” (Id. ■ at 66-67.) .Plaintiff then heard Captain Tellado tell one of the .officers to get Plaintiff up and take the handcuffs off. (Id. at 67.) At that point; all of the officers left except Captain Tellado and the officer Captain Tellado had told to take the handcuffs-off, presumably MacNear. (Id. at 68.) MacNear did not remove Plaintiffs handcuffs, and Tellado again told him to do so. (Id. at 68-70.) Tellado then left, saying that he would be back, but was going to .check on the lady that .needed assistance. (Id. at 70.)
Two additional non-defendant officers arrived at the scene, and the officer with Plaintiff asked them to put Plaintiff in the police car. (Id. .at 70.) Plaintiff told.the two officers that Captain Tellado had directed the other officer to take off the handcuffs, but the two officers responded that they had not been told that. (Id. at 71.) The two officers put Plaintiff in the back of the police car without removing the handcuffs. CM) ■ • . :
Plaintiff was taken to the police station, where he remained for several hours' before being released. (M at 96.)
B. Defendant MacNear’s Testimony
Defendant MacNear testified that he responded to Plaintiffs house with Czulada after receiving a dispatch call for a man with a gun, followed by a call stating that an officer needed assistance. (1/28/16 Tr. 67, 73, 77, MacNear) MacNear heard screams coming from inside the house and followed Czulada inside. (Id. at 78-79.) As MacNear entered the home, he observed ten to fifteen people inside, including three different individuals “pushing and shoving” each other, and Czulada trying to break things , up. (Id. at 84, 90.) Having, decided
The next timé MacNear saw Plaintiff, he •was outside of the house in handcuffs. (Id. at 103, 106; 2/1/16 Tr. 134, Czulada.) Czu-lada told MacNear he had been struck in the head and pointed to Plaintiff as the person who had hit him. (Id. at 104, 105.) MacNear assumed Plaintiff was in handcuffs for hitting Czulada. (Id. at 106.) Mac-Near told Captain Tellado that Plaintiff had struck Czulada, at which time Tellado explained that Plaintiff was an off-duty officer. (Id. at 111.) Tellado told MacNear to remove Plaintiffs handcuffs, but Mac-Near “didn’t have the key” on him. (Id. at 113.) Tellado also ordered MacNear to move the police vehicles so that the ambulances could pull up, and MacNear moved the vehicles, leaving Plaintiff in handcuffs. (Id. at 113-14.)
C. Defendant Czulada’s Testimony
Defendant Czulada arrived at Plaintiffs home with MacNear, in response to a radio transmission of a man with a gun, which turned into a report of an officer in need of assistance. (2/1/16'Tr. 79-80, Czulada). He heard someone calling for help inside the house and ran inside. (Id. at 85-86.) Once inside, Czulada saw people “pushing, yelling, screaming” at each other, and “got in between [Plaintiff] and the pile of people that were fighting.” (Id. at 90, 92.) Czulada “kind of pushed [Plaintiff] back a little bit,” at which time Plaintiff “turned toward [him]” and “pushed [him] with both hands.” (Id. at 90.) After Czulada “nudged” Plaintiff back from the crowd, Plaintiff “pushed” Czulada. (Id. at 95-96.) Czulada’s back was against a wall and Plaintiff, appearing to be angry, approached “in a threatening manner”. (Id. at 95-96.) Czulada responded by punching Plaintiff in the face. (Id. at 96-97.) Plaintiff then punched Czulada in the head multiple times, and Czulada fell and hit the back of his head on a doorknob. (Id. at 100.) Plaintiff continued to punch Czulada while he was on the floor: (Id. at 100-01.)
Czulada then went outside and told Mac-Near that he had been assaulted, and identified Plaintiff, who, at that point, was lying in the street in handcuffs, as the person who had assaulted him. (Id. at 134.) Czulada admitted on cross-examination that the reason he didn’t tell anyone that he had punched Plaintiff in the face was because he “knew that [he had] operated outside the [police] department guidelines.” (Id. at 109.) When Czulada saw Plaintiff handcuffed in the street, Czulada called him a “liar.” (Id. at 112.)
D. Defendant Gherardi’s Testimony
Defendant Gherardi arrived at Plaintiffs home with his partner Defendant Dunn in response to a radio call of a man with a firearm. (2/2/16 Tr. 184, Gherardi.) Before they arrived, he heard MacNear yelling over the radio for additional units. (Id. at 185.) After arriving at the scene and entering the house, Gherardi saw a “large group” of people inside, and Plaintiff
E. Defendant Dunn’s Testimony
Defendant Dunn arrived with Gherardi in response to radio transmissions about a man with a gun, shots fired, and an officer in need of assistance. (2/1/16 Tr. 26, Dunn.) When Dunn arrived, he heard an officer inside the house call for assistance. (Id. at 28.) While standing at the doorway, he saw a “big fight” in the house, “people pushing, cursing at each other, some people throwing punches.” (Id. at 30.) Once he entered the house, he saw Plaintiff punching Czula-da against a wall. (Id. at 30, 33.) He also saw Plaintiff “[tjhrowing punches while Czulada was in the fetal position.” (Id. at 36.) He made his way to Czulada and Plaintiff, “got behind [Plaintiff][,] ... put [his] arms around [Plaintiffs] ... waistline and just leaned backwards, to try to get him off Officer Czulada.” (Id. at 36.) Dunn and Plaintiff “fell over the couch.” (Id. at 37.) At that point, Dunn “scurried out from underneath” Plaintiff, and “that was that.” (Id. at 42.) That was the last time Dunn saw Plaintiff. (Id. at 44.)
F. Defendant Braumann’s Testimony
Defendant Braumann arrived at Plaintiffs home with his partner, Kurian, in response to a radio dispatch that started out as a dispute with a firearm, and then switched to officer in need of assistance. (2/2/16 Tr. 10, Braumann.) When Brau-mann and Kurian were a block or two from the location, Braumann “heard an on-duty officer, which was either Sergeant Mac-Near or Officer Czulada[,] scream over the radio for additional units.” (Id. at 11.) When they arrived, Braumann and Kurian ran to the front door. (Id. at 13.) Brau-mann testified that he saw a “giant fight inside the house”, and observed both Mac-Near and Czulada inside. (Id. at 14.) Brau-mann did not see Plaintiff inside the house, and did not know if Plaintiff was inside when Braumann entered. (Id. at 17-18.) Braumann testified that he had his ASP baton in his hand when he walked into the house, because he “felt there was a threat of some sort in the house,” but when he saw the large crowd, he put it back in his holster because he “didn’t want [it] to be taken out of [his] hands.” (Id. at 20.) Soon after Braumann entered the house, a “pile of people fell down on top of [him]”, causing him to fall to the ground. (Id. at 14.) Captain Tellado then entered the living room, and told everyone to leave the house. (Id. at 22.)
G.Defendant Kurian’s Testimony
Defendant Kurian entered the house with Braumann. (2/2/16 Tr. 47, Kurian.) The first thing Kurian saw when he entered was MacNear on top of a broken coffee table. (Id. at 47-48.) He also saw Czulada “pinned” up against the wall by Plaintiff. (Id. at 60.)
Kurian’s attention was. diverted by a teenage girl who assaulted him and started clawing at his face. (Id. at 63-65.) After he attempted to arrest her, Captain Tellado arrived and told everyone to get out of the house. (Id. at 69-70.) Kurian met up with Braumann, and they got in their duty car and left the scene. (Id. at 73-74.)
H. Defendant Reo’s Testimony
.Defendant Reo arrived at Plaintiffs house in response to a call for additional units from someone he thought was Mac-Near. (1/29/16 Tr. 179, Reo). He arrived to see four police cars and about twenty to thirty people outside. (Id. at 179-80.) In order to protect the officers inside the house, Reo placed himself in the entrance to the house and blocked people from entering. (Id.) Plaintiff approached Reo. in the doorway and tried to enter the house, but Reo would not let him through. (Id. at 182.)
Reo did not see any ASP batons out, and did not see any officers strike Plaintiff. (Id. at 191.) However, he did not have an “unobstructed view” of Plaintiff while Plaintiff was in the street and he “[didn’t] know what everybody else was doing.” (Id. at 192-93.)
I. Defendant Boneta’s Testimony
Defendant Boneta arrived at .the scene as an officer was bringing a shirtless man out of the house in what Boneta assumed were handcuffs. (2/1/16 Tr. 10,13, Boneta). Boneta heard someone say, “you can’t do that, I’m on the job.” (Id. at 10.) He turned and saw a person he later came to believe was Plaintiff
J. Defendant Tellado’s Testimony
Defendant Tellado, the duty captain present at the scene, testified that when he arrived at the house, he saw upward of 50 people outside. (2/1/16 Tr. 171-72, Tellado.) When he entered the house, he saw people lying on the floor handcuffed with police officers next to them, and heard yelling and screaming. (Id. at 173-75.) He did not see Plaintiff inside the house. (Id. at 178.) Tellado ordered officers to take the two handcuffed individuals out of the house. (Id.) Tellado then realized that an ambulance was needed for two individuals inside the house — the elderly woman and an individual who might have been injured. (Id. at 178.) Tellado then left the house because the situation was “calming down.” (Id. at 180.)
Once outside, Tellado walked to the street because he saw “a certain' commotion” with three or four officers struggling with somebody. (Id. at 183.) He saw three or four, officers standing around an individual lying on the ground handcuffed. (Id. at 183-84.) At some point, an officer told Tellado that “the reason [Plaintiff] was in handcuffs is because he hit a police officer.” (Id. at 187.) At that time, none of the officers had weapons in their hands. (Id. at 184.) After Plaintiff told Tellado that Plaintiff was a police officer, and that the other officers had pulled his badge out of his pants, Tellado “asked the officers to assist [Plaintiff] and lift him up on his own two feet”, and “asked them to remove the cuffs.” (Id. at 190.) After giving that order, Tellado did not stay there to see if anyone removed the handcuffs because he heard screaming from inside the house and “went [to] the person that needed medical attention. ...” (Id. at 196-97.)
K. Defendant Deferrari’s Testimony
Defendant Deferrari testified that while en route to the scene, he heard over the radio that there was “possibly an MOS” at the location, as well as an officer screaming for assistance. (2/2/16 Tr. 109-11, De-ferrari.) When Deferrari arrived, he ran toward the house, (Id. at 113.) From the doorway, he saw people “fighting, pushing, shoving, [and] throwing people to the ground” inside. (Id.) He briefly entered the house, and then was “pulled from the house by an/ unknown person” and “punched in the face,” after which he “barricaded [him]self at the doorway.” (Id. at 113-14;) Deferrari could not see exactly what was going on inside the house and “wasn’t able to see any officers inside the house.” (Id. at 119.)
Later, Deferrari saw Plaintiff exiting the house with an officer following him and pointing at him, yelling, “he’s under ... arrest, he’s a collar, he’s a collar.” (Id. at 121.) Plaintiff kept walking, and “officers approached [Plaintiff] to place him in handcuffs.” (Id. at 124.) Plaintiff “pulled his arms away from them, [and] swung his arms to keep them from arresting him.” (Id. at 124-25.).
Deferrari saw “about five or 10” officers surround Plaintiff, “grabbing at his arms trying.to pull them behind his back,!’ and “[s]ome had their ASPs out hitting him in the legs trying to get him down to the ground.” (Id: at 131-32.) Deferrari did not see the officers .striking Plaintiff on other parts of his body. (Id. at 132.) Deferrari
L. Defendant Failla’s Testimony
When Defendant Failla arrived on the scene, he saw Plaintiff standing in the middle of the street with a circle of police officers around him. (1/29/16 Tr. 156-58, Failla.) He saw Plaintiff “flailing and punching with closed fists at the other officers.” {Id.) Failla was trying to “assess the whole situation”. {Id. at 159.) He did not see “anybody with anything in their hands.” {Id.) He saw Plaintiff “punch at a police officer.” {Id. at 160.) At some point thereafter, Defendant Heerey, Detective Russo, and a “couple of other police officers” brought Plaintiff to the ground. {Id. at 160-61.) Plaintiff was still “rolling and flailing his arms,” so Failla, rather than help to restrain Plaintiff, “thought it better to spray [Plaintiff] in the face with pepper spray” in order to stop Plaintiff from “resisting arrest.” {Id. at 161.) Failla testified that after he pepper-sprayed Plaintiff, “miraculously ... [Plaintiff] put his hands behind his back.” {Id. at 162.) At that point, “they were able to get [Plaintiff] handcuffed and then .he [lay] ... on the ground for a minute.” {Id. at 163.)
Although Failla had been trained that when he pepper-sprayed someone, he was supposed to give them water to wash out their eyes, he did not give Plaintiff any water, because he “didn’t have [it] at the scene” and because he knew an ambulance would be going to the stationhouse. {Id. at 167.) He walked away “shaking [his] head in disgust” because he had “never seen an individual who calls himself a police officer act that way to on-duty police officers.” (Id.)
M. Defendant Heerey’s Testimony
Defendant Heerey arrived at the scene with Failla. (1/29/16 Tr. 121, Heerey.) Heerey saw a group of officers “trying to apprehend” Plaintiff, and Plaintiff was “waving his arms and indicating that he was not going to be apprehended.” (Id. at 122.) Heerey did not know what had transpired before he arrived. (Id. at 123.) He “ran up ... [and] grabbed one arm,” another officer
III. THE JURY’S VERDICT
A. Liability and Damages
After seven days of trial, the jury returned a verdict finding that three Defendants — Deferrari, Reo, and Heerey— were personally involved in falsely arresting Jackson,
On excessive force, the jury found that four Defendants — Czulada, Kurian, Reo, and Failla — were personally involved in subjecting Plaintiff to excessive force, that eight — Tellado, MacNear, Gherardi, Dunn, Deferrari, Braumann, Boneta, and Heer-ey — had failed to intervene to prevent Jackson from being subjected to excessive force, and that one — MacNear—was liable as a supervisory officer for Plaintiff having been subjected to excessive force. (Id. at 3-4.)
The jury awarded compensatory damages in a lump-sum amount of $12,500,000, and found each Defendant liable for punitive damages, awarding specific amounts as to each Defendant. See supra n.l.
B. Qualified Immunity & the Special Verdict Sheet
Following the procedure outlined by the Second Circuit in Stephenson v. Doe, 332 F.3d 68 (2d Cir. 2003), the Court presented the questions of liability to the jury, and reserved the question of qualified immunity for the Court to decide post-trial if there was a verdict in Plaintiffs favor. See id. at 80 (“The court should charge the jury on [plaintiffs § 1983 claim], but not on qualified immunity. If the jury returns a verdict ... against [defendant], the court should then decide'the issue of qualified immunity.”). Following the verdict in Plaintiffs favor on two counts, the Court presented the jury with a series of factual questions, known as special interrogatories (“Special Verdict Sheet”)
DISCUSSION
Defendants argue that they are all entitled to qualified immunity as to both Plaintiffs false arrest and excessive force claims. As a preliminary matter, the Court notes that it has, where possible, adopted a view of the jury’s findings that reconcile apparent inconsistencies between the jury’s verdict and its answers on the Special Verdict Sheet. See Harris v. Niagara Mohawk Pwr. Corp., 252 F.3d 592, 598 (2d Cir. 2001) (instructing courts faced “with seemingly inconsistent verdicts” that they “must adopt a view of the case, if there is one, that resolves any seeming inconsistency”); see also Gallick v. Baltimore & Ohio RR Co., 372 U.S. 108, 119, 83 S.Ct. 659, 9 L.Ed.2d 618 (1963) (stating that, when dealing with special interrogatories, “it is the duty of the courts to attempt to harmonize the answers, if it is possible under a fair reading of them,” and explaining that “[wjhere there is a view of the case that makes the jury’s answers to special interrogatories consistent, they - must be resolved that way”).
I. LEGAL STANDARDS
Qualified immunity protects government officials from civil damages liability “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct; 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)).
To determine whether the relevant law was clearly established, a court considers “the specificity with which a right is defined, the existence of Supreme Court or Court of Appeals case law on the subject, and the understanding of a reasonable officer in light of preexisting law.” Terebesi v. Torreso, 764 F.3d 217, 231 (2d Cir. 2014), cert. denied sub nom. Torresso v. Terebesi, — U.S. -, 135 S.Ct. 1842, 191 L.Ed.2d 723 (2015). “Even if this Court has not explicitly held a course of conduct to be unconstitutional, we may nonethéless treat the law as clearly established if decisions from this or other circuits ‘clearly foreshadow a particular ruling on the issue.’ ” Id. (quoting Scott v. Fischer, 616 F.3d 100, 105 (2d-Cir. 2010)).
“Whether a defendant officer’s conduct was objectively reasonable is a mixed question of law and fact.” Zellner, 494 F.3d at 367. The ultimate question of qualified • immunity, i.e., whether it was objectively reasonable for an officer to believe that his conduct did not violate a clearly.established right, is -to be decided by the.court. Id. However, whether it was
A court should review the facts that are material to the qualified immunity issue, as resolved by the jury, to determine whether the officer’s conduct was objectively reasonable. Zellner, 494 F.3d at 368; see also, e.g., Stephenson, 332 F.3d at 81 (after the district court receives the jury’s decision as to “what the facts were that the officer faced or perceived,” the court then may “make the ultimate legal determination of whether qualified immunity attaches on those facts”) (citation and quotation marks omitted); Lennon v. Miller, 66 F.3d 416, 421 (2d Cir. 1996) (the ultimate question of entitlement to qualified immunity is one of law for the court to decide once disputed factual issues are resolved) (quotation marks omitted); Warren v. Dwyer, 906 F.2d 70, 76 (2d Cir. 1990) (“If there are unresolved factual issues which prevent an early disposition of the defense, the jury should decide these issues on special interrogatories.... The ultimate legal determination whether ... a reasonable police officer should have known he acted unlawfully” should be made by the court “on the facts found” by the jury).
Qualified immunity is an affirmative defense that a defendant bears the burden of proving. Coollick v. Hughes, 699 F.3d 211, 219 (2d Cir. 2012). “To the extent that a particular finding of fact is essential to a determination by the court that the defendant is entitled to qualified immunity, it is the responsibility of the defendant to request that the jury be asked the pertinent question.” Zellner, 494 F.3d at 368. See also Thomas v. Kelly, 903 F.Supp.2d 237, 254 (S.D.N.Y. 2012) (“Because qualified immunity is an affirmative defense, the defendant bears both the . burden of proof and the obligation to request the specific factual interrogatories that would be necessary to enable the court to make the appropriate legal determination,” such that “[t]o the extent [ ] a particular finding of fact is essential to a detérmination by the court that the defendant is entitled to qualified immunity, it is the responsibility of the defendant to request that the jury be asked the pertinent question.’’) (emphasis in original) (quotation marks and citations omitted). “If the defendant does hot make such a request, he is not entitled to have the court, in lieu of the jury, make the needed factual finding.” Zellner, 494 F.3d at 368.
II. FALSE ARREST
Defendants argue that they are all entitled to qualified immunity because no reasonable police officer in their position would have believed that arresting Jackson would violate his Fourth Amendment rights. The Court finds that five of the seven officers found liable for false arrest — Deferrari, Reo, Heerey,: MacNear, and Boneta — are entitled to qualified immunity. Failla and Tellado are not.
A. Legal Standards
1. False Arrest Standard
A claim for false arrest “rest[s] on the Fourth Amendment right of an individual to be free from unreasonable seizures, including arrest without probable cause.” Morris v. Silvestre, 604 Fed.Appx. 22, 24 (2d Cir. 2015) (summary order) (quoting Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996)), Probable cause to arrest exists where the arresting officers have
“Liability may attach where an officer fails to intervene, but observes or has reason to know ... that a citizen has been unjustifiably arrested,” if the officer “had a reasonable opportunity to intervene to prevent the violation from happening.” Sanabria v. Tezlof, 11-CV-6578, 2016 WL 4371750, at *5 (S.D.N.Y. Aug. 12, 2016); see also Morris v. City of New York, 14-CV-1749, 2015 WL 1914906, at *5 (E.D.N.Y. 2015) (describing the “affirmative duty [of law enforcement officials] to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence” if there was a realistic opportunity to intervene).
Additionally, a supervisor may be held liable if he is a “direct participant” in a constitutional violation such as a false arrest, meaning that he “authorizes, orders, or helps others to do the unlawful acts, even if he ... does not commit the acts personally.” Terebesi, 764 F.3d at 234.
2. False Arrest and Qualified Immunity
Even if probable cause is lacking in a given case, an officer “will still be entitled to qualified immunity ... if he can establish that there was ‘arguable probable cause’ to arrest.” Zalaski v. City of Hartford, 723 F.3d 382, 389 (2d Cir. 2013); see also Jenkins, 478 F.3d at 84-85 (“An officer’s determination is objectively reasonable if there was ‘arguable’ probable cause at the time of arrest — that is, if ‘officers of reasonable competence could disagree on whether the probable cause test was met.’ ”) (quoting Lennon, 66 F.3d at 423-24). In other words, “[ajrguable probable
B. Five Defendants — Deferrari, Heerey, Reo, Boneta^ and Mac-Near — Are Entitled to Qualified Immunity on the False Arrest Claims; Two Defendants — Failla and Tellado — Are Not
1. Defendants Found Liable for Personally Participating in the False Arrest
. All three Defendants' found to have personally participated in the false arrest of Plaintiff — Deferrari, Reo, and Heerey — are entitled to qualified immunity on the basis of arguable probable cause to believe that Plaintiff had committed a crime. The jury found that Deferrari, Reo, and Heerey all believed, even if mistakenly, that Jackson was throwing punches at police officers while out in the street, and that Reo also believed, even if mistakenly, that Jackson shoved him. (Special Verdict Sheet, at 4, 6, 7) Based on these beliefs, even if mistaken, these three Defendants had at least arguable probable cause to arrest Plaintiff, ie., for attempted assault in the third degree, harassment in the second degree, and/or resisting arrest.
The Second' Circuit has made clear that “the tests for .probable cause and arguable probable cause are -... not congruent.” Zellner, 494 F.3d at 370. Thus, it is possible for a jury to find that officers did not have probable cause for an arrest, and yet for a court to find after the fact that an “officer[] of reasonable competence” could have found probable cause in light of the facts. Id. at 369-70 While it is not clear why the jury concluded that the three officers who believed they saw Plaintiff throwing punches at other officers did not have probable cause to arrest him,'the Court concludes that those" beliefs provide at least arguable probable cause that entitles Deferrari, Reo, and Heerey to qualified immunity on the false arrest claims.
2. Defendants Found Liable Based on Failure to Intervene and . Supervisory Liability
The jury found that Tellado, MacNear, Boneta, and Failla were liable for failure to intervene to prevent Jackson’s false arrest, and that MacNear was.also., liable for false arrest as a supervisory officer. (Verdict Sheet, at 2.)
a) ■ Defendants’ Theory of Derivative Qualified Immunity for Non- ■ • Intervening Defendants
The Court addresses, as an initial matter, Defendants’ assertion, made without elaboration, that “a finding of qualified immunity [for the Defendants who personally participated in the false arrest] would extinguish the liability [as to all other officers] for failure to intervene and supervisory liability.” (Dkt. 10?, at 24.) Although there is no definitive case law on this issue, the Court rejects what, amounts to a theory of derivative qualified immunity for the non-intervening, officers, ie., that because the, officers who arrested Plaintiff had arguable probable cause and are entitled -to qualified immunity as to that arrest, the officers, and supervisors who failed to intervene are automatically, or in effect, derivatively, entitled to qualified immunity as well. The Court instead finds that, under the facts of this case, the grant of qualified immunity to the three. arresting Defendants does not preclude the denial of qualified immunity as to other Defendants for failure to intervene as to the arrest."
In Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123 (2d Cir. 1997), the Second Circuit held that “[a] police officer cannot be held liable in damages for failure to intercede unless such failure permitted fellow officers to violate a suspect’s -‘clearly established statutory or constitutional rights’ of which a reasonable person would' have
The language of Ricciuti itself corroborates this interpretation. See id. at 129 (stating that “the failure to intercede must be under circumstances making it objectively unreasonable for [the non-intervening officer] to believe that his. fellow officers’ conduct did not violate those rights”); id. (“To obtain summary judgment on qualified immunity . grounds ⅛ connection with a claim of failure to intercede to prevent an illegal arrest, a defendant must show that the only résult a fair jury could reach -is that reasonably competent police officers, faced with the information available to the non-intervening officer at the time of the arrest, could disagree about the legality of the arrest”) (emphasis added).
Consistent with this analysis, this oft-quoted language from • Ricciuti does not appear to have been applied to the situation presented here, where the jury has found that there was an arrest without probable cause, but also found facts that support a grant of qualified immunity to the arresting officers, as well as facts that warrant denying qualified immunity to the non-intervening officers.
As this case illustrates, the different treatment of the arresting and non-intervening officers is justified by the differences in what the two sets of officers reasonably believed about the existence or non-existence of probable cause for the arrest. Indeed, the jury’s Special Verdict findings in this case bear out this critical distinction. Here, the jury found that the three officers who were personally involved in the arrest believed, even if mistakenly, that Plaintiff had committed a crime by assaulting Czulada or other officers in the street; whereas it found that some of the non-intervening Defendants did not believe that Plaintiff had committed a crime. (Special Verdict-Sheet, at 1, 4, 6, 7) Given the difference in what the two sets of officers — arresting, versus non-intervening — knew or believed about the circumstances giving rise to the arrest, it is entirely consistent with Ricciutti to grant qualified immunity to the arresting officers, who believed their actions were lawful, while denying qualified immunity to. the non-intervening officers who did not believe the arrest was lawful, yet failed to intervene. See Robison v. Via, 821 F.2d 913, 921 (2d Cir. 1987) (noting that “it has long been clearly established that an arrest without probable cause is a constitutional violation,” even though qualified immunity might be appropriate where there is arguable probable cause).
b) Defendants MacNear and Boneta Are Entitled to Qualified Immunity as to , . the False Arrest
Notwithstanding the Court’s rejection of Defendants’ theory of derivative qualified immunity for all of the non-intervening officers, the Court finds that Mac-Near and Boneta are entitled to qualified immunity for their false arrest verdicts. The jury’s responses to the special interrogatories on qualified immunity indicate that MacNear and Boneta reasonably, even if mistakenly, believed they saw Plaintiff committing crimes, and/or relied upon the allegations of fellow police officers in concluding that the arresting officers’ conduct was lawful. See Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006) (“ “When making a probable cause determination, police officers are entitled to rely on the -allegations of fellow police officers.’ ”)' (quoting Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir. 2000)).
The jury found that MacNear believed, even if mistakenly, that Jackson assaulted
Boneta is similarly entitled to qualified immunity for his false arrest verdict. As to Boneta, the jury found that he believed, even if mistakenly, that Plaintiff had shoved Reo, and was throwing punches at police officers in the street. These reasonable beliefs provide arguable probable cause for Plaintiff’s arrest and, in turn, provide qualified immunity to Boneta for his failure to intervene. (Id.)
c) Defendants Failla and Tellado
With respect to Failla and Tellado, however, the Court denies qualified immunity on the false arrest claims. .
(1) Failla
As to Failla, the jury’s verdict reflects a finding that Failla failed to intervene to prevent Plaintiffs false arrest, despite having reason to know that it was not supported by probable cause, and despite having a reasonable opportunity to intervene. On the Special Verdict Sheet, the jury did not find that Failla believed that Plaintiff had committed any of the specified illegal acts, except resisting arrest. However, the arrest that Plaintiff was resisting was an arrest that the jury found Failla believed or had reason to believe was unlawful.
(2) Tellado
The jury also found Tellado liable for failing to intervene in Plaintiffs false arrest. This means that the jury found that Tellado knew or had reason to know thát the arrest was without probable cause. (Dkt. 97 (“Jury Instructions”) at 16.) The jury also found, in the Special Verdict Sheet, that Tellado did not believe that Plaintiff - had assaulted Czulada, shoved Reo, thrown punches at officers in the street, or resisted arrest. (Special Verdict Sheet, at 1.) Based on these findings by the jury, the Court is compelled to deny Tellado qualified immunity.
(3) - Collective Knowledge Doctrine Does Not Benefit Failla or Tellado
The collective knowledge doctrine does not help either Failla or Tellado, because as noted, collective knowledge requires that the relevant knowledge actually have been communicated. Here, the jury’s finding that Failla and Tellado did not believe that. Plaintiff had committed a crime necessarily means that the arresting officers’ knowledge about Plaintiffs arguable crimes was not communicated to Failla
In sum, with respect to the jury’s false arrest verdicts, qualified immunity is granted as to Defendants Deferrari, Heer-ey, Reo, Boneta, and MacNear, and denied as to Defendants Failla and Tellado. '
III. EXCESSIVE FORCE
Defendants argue that they are entitled to qualified immunity as to the jury’s excessive force verdicts, because Defendants used reasonable force under the circumstances:
A. Legal Standards
1. Excessive Force Standard
Fourth Amendment jurisprudence contemplates that law enforcement has a “right to usé some degree of physical coercion or threat thereof’ as part and parcel of the “right to make an arrest or investigatory stop.” Rogoz v. City of Hartford, 796 F.3d 236, 246 (2d Cir. 2015). This right is limited, however, by the requirement that the use of such force be objectively reasonable “in' light of the facts and circumstances confronting” the law enforcement officers effecting the arrest, under penalty of violating the Fourth Amendment. Id. “Whether the force used to effect an arrest is ‘reasonable’ or ‘excessive’ turns on ‘a careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing government interests at stake.’ ” Figueroa v. Mazza, 825 F.3d 89, 105 (2d Cir. 2016) (quoting Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (internal quotation marks omitted)). This balancing contemplates a number of factors, including “the need for the application of force, the relationship between the need and the amount of force that was used, the extent of injury inflicted,; and. whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.” Id. (citing Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 251-52 (2d Cir. 2001)).
Just as in the false arrest context, “[[liability may attach where an officer fails to intervene, but observes or has reason to know ... that excessive force is being used,” if the officer “had a realistic opportunity to intervene to prevent the violation from happening.” Sanabria, 2016 WL 4371750, at *5. And as with false arrest, a supervisor may be liable for excessive force if he “authorizes, orders, or helps others” to carry out the excessive force. Terebesi, 764 F.3d at 234.
2. Excessive Force and . -Qualified Immunity
Even if a defendant is found liable for using excessive force, that defendant may nonetheless be entitled to qualified immunity if it was' not objectively unreasonable for him or'her to believe that his use of such force was nevertheless lawful. Thus, while both the excessive force inquiry and the qualified immunity inquiry ask whether the officer’s actions were “objectively reasonable,” the qualified immunity inquiry goes on to ask whether any constitutional violation was clearly established. Saucier v. Katz, 533 U.S. 194, 205, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (“stating that the qualified immunity inquiry ... has a further dimension” and acknowledges that “reasonable mistakes can be made as to the legal constraints on particular police conduct”), receded from by Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009), on other grounds.
Put differently, if an officer makes reasonable mistakes of fact in applying force,
“Although it is not the case that an official action is ‘protected by qualified immunity unless the very action in question has previously been held unlawful ... it is to say that in the light of pre-existing law the unlawfulness must be apparent.’ ” Brown, 2016 WL 1611502, at *4 (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). Additionally, there is a narrow set of cases in which a constitutional violation is so “obvious,” that the Graham standard itself gives fair warning that a violation is clearly established. See Brosseau v. Haugen, 543 U.S. 194, 199, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (“Of course, in an obvious case, these standards [articulated in Graham and in Tennessee v. Garner, 471 U.S. 1, 105 S.Ct 1694, 85 L.Ed.2d 1 (1985) ] can ‘clearly establish’ the answer, even without a body of relevant case law.”); Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (finding in a case where an Eighth Amendment violation — using a hitching post — was “obvious” that “general statements of the law are not inherently incapable of giving fair and clear warning,” and explaining that “a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though ‘the very action in question has [not] previously been held unlawful,’ ”) (citing Anderson, 483 U.S. at 640, 107 S.Ct. 3034). See also Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 251 (2d Cir. 2001) (explaining that “it stands to reason that in many instances the absence of a reported case with similar facts demonstrates nothing more than widespread compliance with the well-recognized applications of the right at issue on the part of government actors”) (quotation omitted).
B. No Defendant is Entitled to Qualified Immunity on the Excessive Force Claim
The Court takes as its starting point the jury’s findings that Defendants Czulada, Kurian, Reo, and Failla personally subjected Plaintiff to objectively unreasonable force under the circumstances, that Defendants Tellado, MacNear, Gherardi, Dunn, Deferrari, Braumann, Boneta, and Heerey failed to intervene to prevent Plaintiff from being subjected to excessive force,
1. Defendants Who Personally Subjected Plaintiff to Excessive Force
a) Defendant Czulada
Defendant Czulada is not entitled to qualified immunity regarding the jury’s finding that he personally used excessive, or objectively unreasonable force, against Plaintiff. Construing the evidence in the light most favorable to Plaintiff,- yet still accounting for the jury’s finding that Czu-lada reasonably believed that Plaintiff assaulted him,
It is clearly established that an officer punching someone in the face unprovoked violates that person’s rights. See, e.g., O’Hara v. City of New York, 570 Fed.Appx. 21, 23-24 (2d Cir. 2014) (summary order) (concluding that, where officers were arresting plaintiff for a “relatively minor matter,” “no reasonable officer ... could have thought that the law authorized him repeatedly to punch an unarmed, non-menacing 17-year-old in effecting an arrest”); see also Davis v. Clifford, 825 F.3d 1131, 1137 (10th Cir. 2016) (“[I]t is clearly established law that the use of disproportionate force to arrest an individual who has not committed a serious crime and who poses no threat to herself or others constitutes excessive force.”); Hung v. Watford, 2002 WL 31689328, at *6 (E.D. Pa. 2002) (finding that “an unprovoked grab, punch, kick and handcuffing of an individual who is not resisting arrest or
The Court further finds that no reasonable officer would have found that Plaintiffs action in getting up from the ground after Czulada pushed him, unprovoked, constituted a threat that justified Czulada punching Plaintiff in the face. Plaintiff did not testify that Czulada told him to stay down or any words to .that effect, that Plaintiff appeared angry .or menacing when he stood up and spoke to Czulada, or. that Plaintiff had not done anything, at that point to justify a belief that he had committed a crime or posed any danger to anyone. Moreover, Plaintiffs testimony that he told Czulada that he was an officer further undermines any justification for Czulada’s use of force against Plaintiff at that moment. Accordingly, the Court finds that Czulada is not entitled to qualified immunity as to the excessive force verdict,
b) Defendant Kurian
Defendant Kurian, whom the jury found also personally used excessive force against Plaintiff, is not entitled to qualified immunity either. The jury, could have believed Plaintiffs testimony that Kurian lifted Plaintiff up with an ASP baton around his neck inside the house, and “choked” him. (1/27/16 Tr. 46, 105, Jackson.) They also could have believed Plaintiffs testimony that at the time he was placed in the chokehold, Plaintiff was simply trying to help Czulada up, even as Czulada was taking swings at him. (Id. at .45.) Kurian’s testimony places him in the middle of the altercation between Czulada and Plaintiff, although he testified that he merely “bear hug[ged]” Plaintiffs arm. (2/2/16 Tr. 54, Kurian.) The jury could have disbelieved Kurian’s testimony about the “bear hug,” but found that his testimony otherwise corroborated Plaintiffs statement that it was Kurian who choked him.
Accepting the facts in the light most favorable to Plaintiff and assuming that Kurian placed Plaintiff in a chokehold before Plaintiff punched Czulada, the Court concludes that the chokehold violate ed clearly established law.
Defendant Reo is also not entitled to qualified immunity for personally using excessive force against Plaintiff. The jury could have found that he struck Plaintiff in the back of the head while Plaintiff was standing in the doorway of the house protesting the officers’ treatment of Bonaparte. (1/27/16 Tr. 54, Jackson) (“I was like, wait a minute, guys ...”, and then he was struck in the back of the head). Although Plaintiff he did not see who struck him, (id. at 55), Reo placed himself
Therefore, it is reasonable to infer that the jury’s determination that Reo personally used excessive force against Plaintiff was based on a finding that Reo was the officer who hit Plaintiff in the back of the head. A jury is permitted to infer a defendant’s involvement in use of excessive force based on circumstantial evidence. See Medina v. Donaldson, 10-CV-5922, 2014 WL 1010951, at *7 (E.D.N.Y. March 14, 2014) (“Absent direct evidence, a jury may still find for the plaintiff on a theory of direct participation if ‘there is sufficient circumstantial evidence from which the trier of fact could make reasonable conclusions concerning who, if anyone, struck [the plaintiff].’ ”) (quoting Lasher v. City of Schenectady, 02-CV-1395, 2004 WL 1732006, at *6-7 (N.D.N.Y. Aug. 3, 2004)); Campbell v. City of New York, 06-CV-5743, 2010 WL 2720589, at *9 (S.D.N.Y. June 30, 2010) (finding plaintiffs testimony that defendant-detective was with the officer who transported plaintiff to the place where plaintiff was interrogated and assaulted was sufficient to survive summary judgment and allow jury to determine that the detective failed to intercede or was personally involved in the alleged constitutional violation); Vesterhalt v. City of New York, 667 F.Supp.2d 292, 298 (S.D.N.Y. 2009) (finding that, although plaintiff could not identify who threw her to the floor and held her there with his boot, defendants’ testimony showed that “all of the individual defendants were present [when plaintiff was thrown to the floor,].... and [therefore it is possible that all of the officers ... failed to intervene on her behalf’).
The jury also found in the Special Verdict Sheet that Reo believed, even if mis
Because the Court construes the facts in the light most favorable to Plaintiff, it considers only whether Reo’s striking Plaintiff on the back of the head in response to Plaintiff protesting the officers’ treatment of Bonaparte violates clearly established law, and finds that it does. It is clearly established that an officer cannot strike someone on the back of the head when that person poses no physical threat or resistance. Belanger v. City of Hartford, 578 F.Supp.2d 360, 362-63 (D. Conn. 2008) (finding that “[a] reasonable police officer should know that swinging a baton at an individual’s face while [he is] facing away from the officer without prior warning would constitute a violation of that individual’s right to be free from excessive force”); see also Davis, 825 F.3d at 1137 (“[I]t is ... clearly established law that the use of disproportionate force to arrest an individual who has not committed a serious crime and who poses no threat to herself or others constitutes excessive force.”); Hadley v. Gutierrez, 526 F.3d 1324, 1330 (11th Cir. 2008) (“Our cases hold that gratuitous use of force when a criminal suspect is not resisting arrest constitutes excessive force.”); Hung, 2002 WL 31689328, at *6 (finding that “an unprovoked grab, punch, kick and handcuffing of an individual who is not resisting arrest or even being arrested, not fleeing the scene of a crime and not engaging in any threatening activity to an officer or others, was clearly established as a violation of a constitutional right at the time of the incident”).
The fact that Plaintiff was verbally objecting to other officers’ treatment of Bonaparte does not change the Court’s conclusion, as it is clearly established that verbal objections to police actions do not warrant use of physical force. See Lustig v. Mondeau, 211 Fed.Appx. 364, 371-72 (6th Cir. 2006) (finding that passive resistance and yelling while detained did not justify arm twisting and jerking that caused injury, and thus amounted to a clearly established constitutional violation); Meredith v. Erath, 342 F.3d 1057, 1061 (9th Cir. 2003) (finding a clearly established violation when an agent grabbed a woman by her arms, forcibly threw her to the ground, and, twisting her arms, handcuffed her, after she “loudly asked several times to see a search warrant”); Aldrich v. City of Columbus, 2016 WL 6084570 (S.D. Oh. 2016) (stating that “[a] simple refusal by an unthreatening suspect to comply with an officer’s commands does not warrant the use of significant force”); Aubert v. Elijah, 2009 WL 1516438 (E.D. Ca. 2009) (finding that plaintiff stated a claim of excessive force under the Eighth Amendment when, after Plaintiff verbally objected to corrections officers’ insults, one officer ordered another one to “just kick [Plaintiffs] ass and do what you want with him so I can kick him out of my building with his smart ass mouth,” and another officer, after Plaintiff protested further, began to choke him); Ostroski v. Town of Southold, 443 F.Supp.2d 325, 342 (E.D.N.Y. 2006) (finding that, assuming that “an officer struck plaintiff first, following her protestations regarding [the officers’ actions],” the court could not hold that defendant officers’ conduct was objectively reasonable use of force as a matter of law); Thomas v. Frederick, 766 F.Supp.
d) Defendant Failla
Defendant Failla is also not entitled to qualified immunity., The jury found that Defendant Failla personally subjected Plaintiff to excessive force, presumably based on Failla’s own testimony, in which he admitted to pepper-spraying Plaintiff, as well as Plaintiffs testimony that he was pepper-sprayed after being handcuffed. (1/29/16 Tr. 161, Failla) (stating that, rather than helping to interact with or restrain Plaintiff when he was- resisting arrest, “I thought it better to spray him in the face with pepper spray”); (1/27/16 Tr. 62, Jackson) (stating that after he was handcuffed, he said “Guys, this was unnecessary- ... I’m a fellow cop, too” and “then they pepper sprayed me”). Plaintiff also testified that he willingly allowed' himself to be handcuffed, and was not resisting the officers at that point. (1/27/16 Tr. 62:1-5, Jackson) (stating that he “stuck [his] arm out” and “let them put the cuffs [on] because “I figured it would be over and we can straighten this out”). The evidence also shows that no officer, including Failla, attempted to wipe away the pepper spray from Plaintiffs eyes or face. Construing the facts in the light most favorable to Plaintiff, the Court assumes that the jury found that Failla gratuitously pepper sprayed Plaintiff after Plaintiff had allowed himself to be handcuffed, and in response to Plaintiffs comment about the arrest being unnecessary. Even though the jury found on the Special Verdict Sheet that Failla believed that Plaintiff was resisting arrest, the jury could have found that Failla observed, or thought he observed, Plaintiff resisting arrest before he was handcuffed, and before he pepper sprayed him.
2. Defendants Found Liable for Failure to Intervene and Supervisory Liability
a) Defendants MacNear, Gherardi, and Dunn
The court denies qualified immunity to Defendants MacNear, Gherardi, and Dunn. The jury found that MacNear, Gherardi, and Dunn were liable for failing to intervene in another Defendant’s use of excessive force against Plaintiff. Based on their testimony, these three Defendants appear to have been in the house during the altercation between Plaintiff, Czulada, and Kurian. It is a reasonable inference, then, that the jury found them liable for failing to intervene in Czulada’s use of excessive force against Plaintiff. It is reasonable to infer as well that the jury found that these three Defendants also observed Defendant Kurian choking Plaintiff with his baton and failed to intervene. Regarding MacNear, the jury found that he was also liable for authorizing, ordering, or helping Czulada, Kurian, Reo, and/or Fail-la to use excessive force against Plaintiff.
The Court credits the jury’s determination that there was a reasonable opportunity for MacNear, Gherardi, and Dunn to intervene, as that is an element reflected in their verdict. See Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994) (“Whether an officer had sufficient time to intercede or was capable of preventing the harm being caused by another officer is an issue of fact for the jury unless, considering all the evidence, a reasonable jury could not possibly conclude otherwise.”). While it may be difficult to conclude that there was a chance to intervene to prevent one punch, in the case of Czulada’s use of excessive force, the Court cannot conclude that the jury was incorrect as a matter of law in finding that there was an opportunity to. intervene in at least one of the excessive force incidents that the jury
b)Defendant Braumann
The Court also denies qualified immunity to Defendant Braumann. The evidence shows, that he arrived with Kurian, and placed himself in the house around the time of the Czulada-Plaintiff-Kurian incident. (2/2/16 Tr. 11-13, Braumann.) Brau-mann testified that entered the house with Kurian and that he saw Czulada inside the house. (2/2/16 Tr. 13-14, Braumann.) The jury’s finding that he failed to intervene in the use of excessive force by at least one Defendant could be premised on a finding that Braumann lied about seeing the Plaintiff-Czulada-Kurian incident while inside the house. If Braumann did see either Czulada or Kurian use excessive force on Plaintiff and failed to intervene, despite having the opportunity to do so — findings that are reflected in the jury’s verdict— then he would not be entitled to qualified immunity. Defendants, therefore, have failed to meet their burden of demonstrating that Braumann is entitled to qualified immunity.
c)Defendant Boneta
Defendant Boneta is not entitled to qualified immunity as well. Based on Boneta’s own testimony, he was in a position to have seen Reo hit Plaintiff in the back of the head. (2/1/16 Tr. 10-11, Bone-ta.) The jury’s finding that Boneta believed he saw Plaintiff shove Reo supports a finding that Boneta was present when Reo subjected Plaintiff to excessive force. Since it is a reasonable inference that the jury found that Boneta observed Reo hit Plaintiff unprovoked in the back of the head, which was, as discussed, a clearly established constitutional violation, Boneta is not entitled to qualified immunity. Once again, the Court credits the jury’s determination that Boneta had an opportunity to intervene and did not do so, because the evidence does not negate such a finding.
d)Defendants Deferrari and Heerey
The Court also denies qualified immunity to Defendants Deferrari and Heerey. The jury found that Deferrari and Heerey failed to intervene to prevent the use of excessive force against Plaintiff. De-ferrari testified to seeing several officers with “their ASPs out hitting [Plaintiff] in the legs trying to get him down to the ground.” (2/2/16 Tr. 131-32, Deferrari.) Heerey testified that he jumped in to physically assist in restraining and handcuffing Plaintiff. (1/29/16 Tr. 125-28, Heer-ey.) Thus, it is reasonable to infer that the jury found that both officers either observed Plaintiff being beaten with batons while he was not resisting, and/or observed Failla use pepper spray on Plaintiff after he was handcuffed — either of which, as previously discussed, would have been a clearly established constitutional violation
e) Defendant Tellado
The Court does not find that Tellado is entitled to qualified immunity as a matter of law.
CONCLUSION
For the foregoing reasons, Defendants Deferrari, Reo, Heerey, MacNear, and Boneta are entitled to qualified immunity regarding the false arrest verdicts against them, and those verdicts, both for liability and for damages, must be overturned. However, Defendants Failla and Tellado are not entitled to qualified immunity for the false arrest verdict against them, and none of the Defendants who were found liable for excessive force are entitled to qualified immunity for the excessive force verdicts against them. Defendants shall have 28 days after the issuance of this Order in which to file their motion for judgment as a matter of law under FRCP Rule 50, or alternatively' for a new trial under FRCP Rule 59, as to the remaining Defendants.
SO ORDERED.
. The jury awarded $300,000 in punitive damages against Tellado; $300,000 against MacNear; $275,000 against Czulada; $150,000 against Gherardi; $150,000 against Dunn; $250,000 against Deferrari; $50,000 against Braumann; $400,000 against Kurian; $125,000 against Boneta; $275,000 against Reo; $350,000 against Failla; and $50,000 against Heerey, for a total of $2,675,000 in punitive damages. (Diet. 95 ("Verdict Sheet'').)
. Following the issuance of this Memorandum and Order, judgment will issue, and Defendants will have 28 days in which to file their proposed motion for judgment as a matter of law under Federal Rule of Civil Procedure ("FRCP”) 50 and/or for a new trial under FRCP 59. (See 2/4/16 Diet. Order.)
. Both in his original and amended complaints, Jackson named multiple John Doe defendants, but Plaintiff's counsel affirmed at the beginning of the trial that no such defendants remained in the case. (1/25/16 Tr. at 61.)
. When a defendant seeks judgment as a matter of law after trial on the basis of qualified immunity, the Court "must view all disputed facts in the light most favorable to ... the prevailing party.” O’Hara v. City of New York, 570 Fed.Appx. 21, 23 (2d Cir. 2014) (summary order). See also Zellner v. Summerlin, 494 F.3d 344, 370 (2d Cir. 2007) (explaining that the district court “must draw all reasonable inferences in favor of the nonmoving party ... and ... must disregard all evidence favorable to the moving party that the jury is not required to believe’’) (quoting Reeves v. Sanderson Plumbing, 530 U.S. 133, 150-51, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)).
. Plaintiff's trial testimony was substantially corroborated by the testimony of his friends and family members — Taimar Bonaparte, Derrick Collins, Charlene Strong, Quinton Thomas, Tiffanie Johnson, Marilyn Muiphy, and Marcus Johnson.
. Kurian admitted that he might have missed some of the interaction between Plaintiff and Czulada. (Id. at 50-51.)
. Reo’s testimony, placing Plaintiff outside the house at that moment, is contradicted by all of the other testimony and evidence introduced at trial.
. Boneta’s belief was based on seeing Plaintiff's photograph subsequently in the newspaper. (2/1/16 Tr. 11, Boneta.)
. Heerey identified the other officer as Detective Russo, who was originally named as a defendant in this action, see supra at 642, but was later dismissed, by stipulation. (Dkt. 92.)
. As to both the false arrest and excessive force verdicts, Defendants argue that it was
. The Court allowed the parties ample opportunity to submit and discuss the proposed special interrogatories, and both sides did so. Notably, Defendants proposed, and certainly did not object to, the questions that were ultimately included in the Special Verdict Sheet provided to the jury. (Dkt. 94.)
. Defendants are, of course, free to make arguments regarding the inconsistency of the Special Verdict Sheet and the verdict in their forthcoming Rule 50/59 Motion. The Court finds it necessary, however, to determine what facts would be consistent with, both the Special Verdict Sheet and, the verdict for purposes of its qualified immunity analysis. See Zellner, 494 F.3d at 368 (instructing courts to allow the jury to resolve any disputed facts material to- the- qualified immunity issue, so that the court may make the "ultimate determination of whether the officer’s conduct Was objectively reasonable..,. ”). .
. The Second Circuit has "decline[d] to extend the collective knowledge doctrine to cases where ... there is no evidence that an officer has communicated his suspicions with ' the officer conducting the search, even when the officers are working closely together at a scene.” United States v. Hussain, 835 F.3d 307, 317 n.8 (2d Cir. 2016).
. Although supervisors may also be liable under other theories, such as "gross[ ] negli-gen[ce] in supervising subordinates who committed the wrongful acts” or "deliberate indifference ... by failing to act on information indicating that unconstitutional acts were occurring,” Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995), Plaintiff only requested that the jury be instructed on the theory that Defendants Tellado and MacNear "approved, assisted, condoned, or purposely ignored” Plaintiffs false arrest. (Dkt. 80, at 14.)
. As the jury was instructed, a person is guilty of: assault in the third degree when, with intent to cause physical injury to another person, a person causes such injury to that person or a third person, or he recklessly causes physical injury to another person, N.Y. Penal Law § 120.00; and harassment in the second degree when, with intent to harass, annoy, or alarm another person, a person strikes, shoves, kicks, or otherwise subjects such other person to physical contact, or attempts or threatens to do the same, id. § 240.26. Although the jury was not instructed on resisting arrest, a person is guilty of that offense when he "use[s] physical force to resist an arrest, whether authorized or unauthorized, which is being effected or attempted by a police officer or peace officer”,, id. § 35.27.
. Only two officers — Reo and Boneta — believed that Plaintiff “shoved” Reo. (Special Verdict Sheet, at 5-6.) The Court need not reach the question of whether this belief was reasonable, because the Court finds that there
. Instead, this principle generally has been applied to preclude failure to intervene liability when no constitutional violation was found, as opposed to when a constitutional violation is found, but qualified immunity is granted to those who personally committed the violation. See Lewis v. Fischer, 08-CV-3027, 2009 WL 689803 (E.D.N.Y. 2009) (stating, in discussing Ricciuti, that "[w]hen no constitutional violation has taken place, bystanding officers cannot be held liable.”) Id. at *6, n.3 (emphasis added); Holland v. City of New York, 197 F.Supp.3d 529, 549 (S.D.N.Y. 2016) (stating that, “If the Court determines that the officer’s conduct did not violate a constitutional right, however, the analysis ends.”) (quotation omitted); Usavage v. Port Auth. of New York & New Jersey, 932 F.Supp.2d 575, 599 (S.D.N.Y. 2013) (stating that failure to intervene claims are "contingent upon the disposition of the primary claims underlying the failure to intervene claim,” explaining that when “the record does not disclose an underlying excessive force violation, and does not suggest that an officer who observed the incident could have been aware of the use of excessive force, summary judgment on a duty to intercede claim is appropriate”).
. Curley v. Village of Suffern, 268 F.3d 65 (2d Cir. 2001) is not to the contrary. There, the Circuit held that when a jury returned a verdict in favor of the officers accused of personally using excessive force, other officers could not be held liable for failure to intervene. Id. at 72. Curley explicitly distinguished a situation where the officer who allegedly engaged in the excessive force is found not liable because of qualified immunity, at least in the context of municipal liability. Id. at 71.
. Again, the Court recognizes the seeming inconsistency in the jury’s verdict and the Special Verdict Sheet findings, but believes that applying Ricciuti in this manner appropriately reconciles this conflict. See Harris, 252 F.3d at 598 (courts faced "with seemingly inconsistent verdicts” "must adopt a view of the case, if there is one, that resolves any seeming inconsistency”); Gallick, 372 U.S. at 119, 83 S.Ct. 659 ("Where there is a view of the case that makes the jury’s answers to special interrogatories consistent, they must bé resolved that way.”)
. The Court notes, however, that its ruling on the qualified immunity issue, which is based on the jury’s explicit Special Verdict Sheet findings, does not resolve any challenge Defendants might raise in their Rule 50/59 motion as to whether the evidence was sufficient to support the jury’s failure to intervene verdict against Failla. Indeed, based on the evidence showing that Failla arrived at the scene late, just in time to observe Plaintiff being arrested, there is reason to question whether he knew or thought that there was no probable cause for the arrest.
. This conclusion is reinforced by the jury’s finding that Failla did not'believe that Plaintiff was "throwing punches at .police officers while out in the street,” (Special Verdict Sheet, at 6.) This would suggest that the "resisting arrest” that Failla saw was non-violent.
. As with Failla, this ruling does not resolve the question, of whether the evidence was sufficient to support the jury’s failure to intervene verdict as to Tellado. Indeed, the Court notes that the evidence supporting Tellado’s liability is thin — Plaintiff did not testify to seeing Tellado in the house, stating that he first noticed Tellado standing outside the house after Plaintiff was being searched, which occurred after Plaintiff had been handcuffed and pepper-sprayed. (1/27/16 Tr. 62-65.), Plaintiff further testified that Tellado looked at Plaintiff's ID, and then ordered that he be released. (Id. at 66-67). Tellado’s testimony matches with Plaintiff's — he testified that he entered the house after Plaintiff left, apd that he first saw Plaintiff after he was restrained. (2/1/16 Tr. 178, 183-84, Tellado.)
. The Court also notes that the Special Verdict Sheet questions were designed to assist the Court in its qualified immunity analysis for the false arrest claim, and do not provide definitive information regarding the excessive force claim. As the Court will discuss' infra, the jury’s Special Verdict Sheet answers are insufficient to undermine the jury’s verdict finding Defendants liable for excessive force, because the Special Verdict Sheet does not provide any information about the chronology of events. The jury's finding that a defendant believed that Plaintiff assaulted Czulada, for example, does not provide any information about whether this assault occurred before, or after any excessive force was used by Czula-da, or whether the assault was of a magnitude that merited the actions Czulada took thereafter.
. Although the Special Verdict Sheet did not ask if Czulada’s belief was reasonable, in light of the fact that the jury found that four other officers also believed it, the Court finds that this belief was reasonable.
. As noted, in Pelzer, 536 U.S. 730, 122 S.Ct. 2508, the Supreme Court stated that “a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, ¡ even though the very action in question has [not], previously been held unlawful,” Id. at 741, 122 S.Ct. 2508 (internal quotation marks omitted).
. It is not clear whether the jury found that Kurian personally used excessive force against Plaintiff before or after Pláintiff assaulted Czulada. At this stage, the Court adopts the view of the case "that makes the jury's answers to the special interrogatories consistent.” Gallick, 372 U.S. at 119, 83 S.Ct. 659.
. To the extent the sequence of events is relevant to Defendants’ claims of qualified immunity, it was incumbent on them to request that the jury resolve those factual issues in the Special Verdict Sheet. See Zellner, 494 F.3d at 368 ("To the extent that a particular finding of fact is essential to a determination by the court that the defendant is entitled to qualified immunity, it is the responsibility of the defendant to request that the juiy be asked the pertinent question.... If the defendant does not make such a request, he is not entitled to have the court, in lieu of the jury, make the needed factual finding.”) However, even if the jury had found that Plaintiff assaulted Czulada before Kurian placed Plaintiff in a chokehold, Kurian still might not be entitled to qualified immunity. It is clearly established that even if someone -posed a threat at the time force was initiated on them, an officer cannot continue to apply deadly or serious force when the threat has subsided. See Alicea v. Thomas, 815 F.3d 283, 288 (7th Cir. 2016) (stating that use of force "is only reasonable when it is proportional to the •threat posed. If an officer's threat perception changes, so too should her force calculus.”); Lamont v. New Jersey, 637 F.3d 177, 184 (3d Cir. 2011) ("Even where an officer is initially justified in using force, he may not continue to use such force after it has become-evident that the threat justifying the force has vanished.”); Lytle v. Bexar County, Tex., 560 F.3d 404, 413 (5th Cir. 2009) ("[A]n exercise of force that is reasonable at one moment can become unreasonable in the next if the justification for the use of force has ceased”); Keeney v. City of New London, 196 F.Supp.2d 190, 200 (D, Ct. 2002) (explaining that “once an individual is restrained by handcuffs and unable to defend himself, there is little legitimate government interest in cpntinued use of force”). Here, Plaintiff testified that while Ku-rian, held the baton to his neck, Kurian "was telling [him] to relax, and [Plaintiff] was telling him, I am relaxed. I can't breathe. Then [Plaintiff] noticed after [he] said that, [he] felt like [the baton] was being pulled tighter and
. Reo testified that while he was guarding the door of the house to make sure nobody else entered, Plaintiff approached and tried to get into the house. (1/29/16 Tr. 182, Reo,) Then he heard Plaintiff yelling, “You all can’t fucking do that, you all can’t do that”, while looking at two officers taking a black, shirtless man out of the house. Id. Reo testified that Plaintiff tried to push past Reo again, and finally "g[ave] [him] a two-handed shove to [his] chest”, which made Reo stumble back. Id. at 182-83. Bonaparte’s testimony that he was not wearing a shirt on the night of the incident tended to corroborate his identity as the man being removed by the two officers. (1/25/16 Tr. 24, Bonaparte).
, The Court once again finds that,’ although it is not necessary to rely on Pelzer here, it is obvious that hitting someone on the back of the head for verbally objecting to a police officer’s conduct is a clearly established violation of the right to be free from excessive force. Pelzer, 536 U.S. at 741, 122 S.Ct. 2508.
. Again, because the Special Verdict Sheet did not seek to have the jury clarify the timing of events, and because the jury found that Failla’s use of force was unreasonable, the Court cannot find that the jury concluded that Failla pepper-sprayed Plaintiff believing that Plaintiff was resisting arrest at that moment.
. This conclusion leaves open the question of ■ whether there was sufficient evidence of Braumann's liability for excessive force. Braumann testified that he did not see Plaintiff inside the house, (2/2/16 Tr. 17-18, Brau-mann), and Plaintiff admitted that he did not remember Braumann from the scene (and only sued him after finding out that Brau-mann was at the scene). (1/27/16 Tr. 142-43, Jackson). In the Special Verdict Sheet, the jury found that Braumann did not believe that Plaintiff had committed any of the four criminal acts that the jury found other Defendants believed or saw. (Special Verdict Sheet, at 4.)
. This ruling leaves open the possibility that Tellado will be able to successfully challenge the sufficiency of the evidence with respect to the findings of liability against him.
. As a final consideration, the Court takes notice of the fact that courts in this district have observed that when a jury has awarded punitive damages, an assertion of qualified immunity "seem[s] especially hollow.” Harewood v. Braithwaite, 64 F.Supp.3d 384, 401 (E.D.N.Y. 2014), appeal withdrawn (April 2, 2015) (quoting Adedeji v. Hoder, 935 F.Supp.2d 557, 571 (E.D.N.Y. 2013)). "The jury having found that [the defendant’s] conduct was malicious or wanton cuts deeply against [the defendant's] argument that the Court should find him immune on the ground that he acted in [an] objectively reasonable manner.” Id. See also Robertson v. Sullivan, 07-CV-1416, 2010 WL 1930658, at *4 (E.D.N.Y. 2010) ("The jury having found that each defendant deserved to be punished for engaging in such behavior, it is difficult to fathom the defendants’ post-verdict claim that [the Court] should find them immune on the ground that [they] acted in an objectively reasonable manner.”). The verdict sheet in this case did not specify whether punitive damages were for Defendants’ false arrest or excessive force liability, or both. Although the Court, in light of the special verdict sheet, is compelled to grant qualified immunity to some Defendants on the false arrest claim notwithstanding the jury’s punitive damages award, the Court finds that award reinforces the Court's denial of qualified immunity on the excessive force claim.