202 F.3d 150 (2nd Cir. 1999), 98-9114, Barnes v Anderson

Docket Nº:Docket No. 98-9114
Citation:202 F.3d 150
Party Name:ARTHUR BARNES and MICHELLE BARNES, Plaintiffs-Appellants, v LAURA ANDERSON, BERNARDO AVILES, ARNOLD THOMAS, ALAN KAPLAN, and RANDAL MEIERDIERKS, Defendants-Appellees.
Case Date:August 25, 1999
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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202 F.3d 150 (2nd Cir. 1999)

ARTHUR BARNES and MICHELLE BARNES, Plaintiffs-Appellants,

v

LAURA ANDERSON, BERNARDO AVILES, ARNOLD THOMAS, ALAN KAPLAN, and RANDAL MEIERDIERKS, Defendants-Appellees.

Docket No. 98-9114

United States Court of Appeals, Second Circuit

August 25, 1999

Argued: June 7, 1999

As Amended Dec. 17, 1999

Appeal from a judgment of the United States District Court for the Southern District of New York (Dominick L. DiCarlo, Senior Judge, United States Court of International Trade, sitting by designation) dismissing plaintiffs' civil rights lawsuit pursuant to a jury verdict in favor of defendants. Plaintiffs seek a new trial, contending that the district court erred by: (1) denying plaintiffs' two Batson motions challenging defendants' striking of African Americans as potential jurors; (2) instructing the jury not to consider for any purpose the fact that plaintiff Michelle Barnes suffered a miscarriage; (3) failing to sustain plaintiffs' objections to certain comments made by defendants' counsel during summation; and (4) assertedly failing to act impartially at several points during the trial.

Affirmed in part, reversed in part, and remanded.

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[Copyrighted Material Omitted]

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GREGORY ANTOLLINO, New York, NY, for Plaintiffs-Appellants.

THOMAS B. LITSKY, Assistant Attorney General, New York, NY (Eliot Spitzer, Attorney General of the State of New York, John W. McConnell, Deputy Solicitor General, Robert A. Forte, Assistant Attorney General, New York, NY, on the brief), for Defendants-Appellees.

Before: WINTER, Chief Judge, OAKES, and SACK, Circuit Judges.

SACK, Circuit Judge:

This litigation arose in the wake of an altercation between court security officers and plaintiffs Arthur and Michelle Barnes at New York City Housing Court. The melee resulted in plaintiffs' arrest and, according to plaintiffs, Mrs.Barnes' miscarriage. Plaintiffs, who are African Americans, thereafter filed suit against several of the security officers alleging numerous civil rights violations pursuant to 42 U.S.C. §1983 and related state-law claims. After a jury verdict in defendants' favor, the United States District Court for the Southern District of New York (Dominick L. DiCarlo, Senior Judge, United States Court of International Trade, sitting by designation) entered judgment dismissing plaintiffs' second amended complaint.

Plaintiffs seek a new trial, arguing that the district court erred in four respects: (1) denying plaintiffs' two Batson motions challenging defendants' striking of African Americans as potential jurors; (2) instructing the jury not to consider for any purpose the fact that Mrs. Barnes suffered a miscarriage; (3) failing to sustain plaintiffs' objections to certain comments made by defendants' counsel in summation; and (4) failing to act impartially at several points during the trial.

BACKGROUND

Most of the events critical to this appeal took place in the New York City Housing Court on December 15, 1995. That morning, plaintiffs were in court to contest an eviction proceeding brought by the New York City Housing Authority. The courtroom was on the raucous side, filled to overflowing with lawyers, landlords, and unhappy tenants. Eventually, plaintiffs' case was called, at which point Mr. and Mrs. Barnes requested counsel. At the same time, Douglas Seidman of the Legal Aid Society indicated that he was there to represent the Barneses. A great deal of

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confusion followed, with Mrs. Barnes becoming increasingly upset as a result. Mrs. Barnes and Mr. Seidman then conferred outside the courtroom. When the case again was called, both approached the bench. It is not at all clear what happened next, except that Mrs. Barnes became still more distraught, eventually walking out of the courtroom in tears.

Mr. Barnes testified that, as he got up to follow his wife out of the courtroom, defendant Laura Anderson, a court security officer, said "Now there's enough room for people to sit down, you fat nigger." Mr. Barnes, a portly man, admits that as he continued out of the courtroom after Anderson's alleged comment, he said "Fuck you" to defendant Bernardo Aviles, another court security officer, and then repeated that comment to the entire courtroom. Officer Aviles followed plaintiffs out of the courtroom, stopping Mr. Barnes and telling him in no uncertain terms that his behavior had been inappropriate. Plaintiffs claim that Officer Aviles punctuated these comments by poking Mr.Barnes in the chest, and that Mr.Barnes warned him to stop. Officer Aviles then told Mr. Barnes that he was going to issue a summons to him, and Barnes claims that at that point Aviles physically pushed him against a wall.

Other uniformed security officers began to arrive on the scene. According to Mrs. Barnes, they attacked her husband in an effort to bring him to the floor. In the meantime, Mrs.Barnes said, Officer Anderson took hold of and twisted one of her arms and placed a knee against her back and her legs. Mrs. Barnes also stated that someone hit her in her back and that her back was "burning." Mrs. Barnes claims that she was pregnant at the time and that she told the officers as much.

Mrs. Barnes testified that defendant Arnold Thomas, another court security officer, then ordered the officers to arrest her. Mrs. Barnes says that when she asked why she was being arrested Officer Thomas responded, "We will find something." Mrs. Barnes was handcuffed and, along with Mr. Barnes, taken to central booking.

Plaintiffs each were charged with criminal contempt in the second degree, obstruction of governmental administration, and attempted assault in the third degree. Mr. Barnes was also charged with resisting arrest. Eventually, all of these charges were dropped on the ground that prosecution was barred by the speedy trial provisions of New York state law.

Two months after the Housing Court incident, on February 16, 1996, under circumstances not disclosed in the record, Mrs. Barnes was attacked on the street by two women. While one of the women choked her from behind, pulling her to the ground, the second kicked Mrs. Barnes in her back, legs, and arms. After the attack, Mrs. Barnes vomited twice, experienced abdominal cramps, and was taken by ambulance to a hospital.

A sonogram performed two weeks later, on February 29, 1996, revealed that Mrs. Barnes' fetus was dead. On March 5, 1996, the fetus was surgically removed.

Approximately one year later, plaintiffs filed this civil rights lawsuit against three of the security officers involved in the courthouse incident: Officers Anderson, Aviles, and Thomas. Plaintiffs also brought claims against Officer Randy Meierdierks and Supervising Officer Major Allen Kaplan, but the district court dismissed these claims before they reached the jury. Plaintiffs do not appeal this dismissal.

Plaintiffs' second amended complaint alleged, inter alia, that defendants violated 42 U.S.C. § 1983 by: (1) unlawfully seizing plaintiffs; (2) using excessive force; (3) maliciously prosecuting plaintiffs; and (4) denying immediate medical attention to Mrs. Barnes.1 It alleged also that plaintiffs

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experienced various injuries as a consequence of these violations, including the miscarriage endured by Mrs. Barnes. Plaintiffs requested $3.5 million in compensatory damages, as well as punitive damages, costs and fees, and an injunction requiring officers at the Housing Court to be properly supervised, trained, and disciplined.

The case proceeded to trial. During jury selection, defendants struck three African-American jurors from the panel with peremptory strikes, triggering two separate motions by plaintiffs pursuant to Batson v. Kentucky, 476 U.S. 79 (1986) (racial discrimination in the use of peremptory strikes unconstitutional). Both motions were denied, and a jury with one African-American member was empaneled.

During the trial, both sides presented by affidavit the reports of their respective medical experts concerning Mrs. Barnes' miscarriage. Defendants' expert, Dr.Bernard Sicuranza, opined that Mrs. Barnes had not become pregnant until January 10, 1996; that trauma can cause a miscarriage; that a trauma-induced miscarriage would be accompanied by a significant, "heavy" amount of hemorrhage; and that such hemorrhage would not appear immediately but instead would occur a week to ten days after the miscarriage. Noting that only a small amount of fresh hemorrhage was discovered when Mrs. Barnes' fetus was removed on March 5, 1996, Dr. Sicuranza concluded that the December 15, 1995 incident at the Housing Court "can be ruled out as the cause of Ms.Barnes' miscarriage."

Responding to Dr. Sicuranza's report, plaintiffs' expert, Dr. David Barad, opined in his report that Mrs. Barnes became...

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