Kerman v. City of NY

Decision Date22 March 2001
Docket NumberDocket No. 00-9130
Parties(2nd Cir. 2001) Robert Kerman, Plaintiff-Appellant, v. The City of New York, Daniel DiLucia, William Crossan, John Hume, Thomas Loomis, Steve Kaminski, Mark DeMarco, Andrew Oberfeldt, James Moran, Edward Joergens, "John Doe", "Richard Roe", "Jane Doe", (the last three names being fictitious, said individuals being employees of the City of New York who participated in taking plaintiff, Robert Kerman, into custody or in dispatching police officers to Robert Kerman's home or operating the City's Emergency Medical Service 911 system as set forth in the complaint), Defendants-Appellees. August Term 2000 Argued:
CourtU.S. Court of Appeals — Second Circuit

Appeal from orders of United States District Court for the Southern District of New York (McKenna and Patterson, Judges). Affirm in part and reverse in part. Plaintiff's claims for unreasonable seizure, excessive force, First Amendment retaliation, intentional infliction of emotional distress and false imprisonment against defendant Crossan are remanded for further proceedings not inconsistent with this opinion. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Gregory Abbey, New York, New York, for Plaintiff-Appellant.

Linda H. Young, New York, New York (Assistant Corporation Counsel for the City of New York, Michael Hess, Corporation Counsel, of counsel), for Defendants-Appellees.

Before: FEINBERG, NEWMAN and PARKER, Circuit Judges.

FEINBERG, Circuit Judge:

Plaintiff Robert Kerman appeals from a judgment in the United States District Court for the Southern District of New York (Robert J. Patterson, J.) dismissing his complaint against nine defendant police officers and the City of New York. Plaintiff also appeals from an earlier order in the Southern District (Lawrence M. McKenna, J.) granting partial summary judgment for defendants. Kerman's complaint, brought under 42 U.S.C. § 1983, alleged that defendant police officers violated his rights under the First and Fourth Amendments to the United States Constitution when they forcibly entered his apartment without a warrant, restrained him and sent him to a hospital against his will. Plaintiff also brought state law claims for battery, false imprisonment and intentional infliction of emotional distress. We affirm in part and reverse in part, as more fully set forth below, and remand for further proceedings not inconsistent with this opinion.

I. Background
A. Kerman's encounter with the police

Early on the morning of October 20, 1995, Kerman called his girlfriend, Phyllis Landau, and informed her that he was drunk and intended to buy a gun and kill himself or his psychiatrist. Kerman was then 47 years old. He had made similar threats in the past, which had not been consummated. On this occasion, however, Landau was particularly concerned because she knew that Kerman had recently entered an experimental study conducted by the New York State Psychiatric Institute at Columbia Presbyterian Hospital and had stopped taking his antidepressant medication as a condition of the study. Kerman suffers from a combination of depression and borderline personality disorder.

Six hours later, Landau called Dr Kevin Malone, the psychiatrist in charge of the study, to seek advice. Upon the doctor's recommendation, Landau then called 911. She gave Kerman's address and telephone number to the 911 operator and stated that a mentally ill man at this location was off his medication and acting crazy and possibly had a gun. She did not give her name and identified Kerman only as "a man". In addition, Landau never mentioned her relationship to Kerman. Based on this information, police officers and an ambulance were dispatched to Kerman's apartment and arrived around noon.

From the record before us, the pertinent facts of the encounter with police viewed in the light most favorable to Kerman, as we must on an appeal from a grant of summary judgment, are as follows.1 When the officers arrived, they rang the doorbell, pounded on the door and announced their presence for several minutes. During this period, Kerman was in the shower. When he finally heard the doorbell, Kerman came to the door dressed only in a towel and, not knowing who was creating the stir, opened the door a crack. According to Kerman, the officers slammed the partially open door into his forehead, sending his eyeglasses flying and knocking him to the floor. The officers then rushed in, jumped on Kerman's back, grabbed and pulled his arms behind him and handcuffed him. Also, one of them allegedly held a gun to his head and said, "Listen you fucking nut-job, just hold still or I'll blow your brains out." Kerman initially resisted, thinking he was about to be killed by unknown assailants, but then, still lying face down, he realized that his attackers were police officers. At that point, he stopped struggling.

The officers then dragged Kerman on his stomach up a short flight of stairs, pulled him up and pushed him against a wall. As a result of the scuffle, Kerman stood naked. Officer Crossan, the sergeant2 in charge of the other officers and present throughout the encounter, was holding the door to Kerman's apartment open and people had gathered to see what was happening. When Kerman asked Crossan to shut the door Crossan replied, "You shut your fucking mouth, I'll shut the door when I want to."

Kerman was kept handcuffed and naked for an hour while the police searched his apartment. He acknowledges that during the search, he made hostile remarks to the police, noting among other things that "it must be a slow day at Dunkin Donuts" and that the officers gave "Mark Fuhrman a good name." At one point, in response to his complaints that the handcuffs were painfully tight, one of the officers yanked on them, making them tighter. In another interaction, Sergeant Crossan demanded to know where the gun was hidden and grabbed Kerman by the face and pulled upward. The officers would not let Kerman put on clothing. No gun was ever found.

During the search, Landau called the apartment. She identified herself as the person who had called 911 at the suggestion of Dr. Malone, and she gave the police her name. The police would not let her speak to Kerman, made no attempt to verify the urgency of the original call and hung up on her. When the paramedics arrived with the ambulance, they telephoned Dr. Malone. Kerman spoke briefly with Malone and asked the doctor to "get these goons out of here." When Crossan heard this he grabbed the phone and hung up. No one asked the doctor about Kerman's mental health. Before transporting him to the hospital, the officers insisted that Kerman be placed in a restraint bag. Kerman alleges that this was retaliation for his threats to sue police for their conduct. He claims that Crossan stated, "I'm going to teach you a lesson... I'll give you something to sue for."

Kerman volunteered to walk to the ambulance waiting outside his apartment building. Crossan denied the request and ordered Kerman to be kept in the restraint bag and wheeled to the ambulance on a stretcher. When the police placed Kerman on the stretcher, they laid him down on his back with his hands cuffed behind and under him. Kerman weighed about 270 pounds, and this position was very painful for him. While on the stretcher, Kerman asked a paramedic to cover his face with a towel so that his neighbors might not identify him. When Crossan saw the towel covering Kerman's face, he removed it stating, "You're not getting that." Finally, Kerman asked to be taken to Columbia Presbyterian Hospital where Dr. Malone could oversee his care. Instead, Crossan insisted that Kerman be taken to Bellevue. Kerman was kept handcuffed and on his back in the restraint bag on his way to the hospital. After admission to Bellevue he was held overnight for observation and released the following day.

B. Proceedings in the district court

In October 1996, Kerman brought the instant suit in the district court. In July 1999, Judge McKenna in a written opinion granted summary judgment for all nine defendant police officers on all but two of Kerman's claims. With regard to the claims on which he granted summary judgment, Judge McKenna found that the officers' actions were reasonable or that they were entitled to qualified immunity. He denied the officers' summary judgment motion as to that portion of Kerman's excessive force claim under § 1983 and state law battery claim based on the officers' actions after they handcuffed Kerman.

In August 2000, a jury trial on these two remaining claims began before Judge Patterson. At the close of evidence, the court submitted a verdict form to the jury. The jury found Crossan liable on Kerman's § 1983 excessive force claim, awarded Kerman $75,000 on that claim and indicated on the verdict form that punitive damages were warranted. The jury found Crossan not liable on the battery claim and found the other eight officers not liable on both the battery and excessive force claims. Testimony on the punitive damages issue was set to begin the following morning.

The next day, Judge Patterson determined that the jury's responses to the verdict form's questions regarding Crossan were inconsistent. The judge asked the jury to resolve the inconsistency in Crossan's verdict and accepted a partial verdict for the other eight officers on both the excessive force and battery claims. Later, Judge Patterson accepted a verdict of not liable for Crossan on the battery claim. Despite continued deliberations, the jury could not reach a second unanimous verdict with respect to Crossan on the excessive force claim. In response to Crossan's renewed Rule 50 motion for judgment as a matter of law, the district court held in a bench ruling that Crossan was not liable due to qualified immunity. The court then entered judgment for all nine defendants on all claims. This appeal followed.

II. Discussion

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