374 F.3d 93 (2nd Cir. 2004), 03-7243, Kerman v. City of New York

Docket Nº:03-7243.
Citation:374 F.3d 93
Party Name:Robert KERMAN, Plaintiff-Appellant, v. THE CITY OF NEW YORK, "John" Dilucia, (Shield # 28683), "John" Crossin, (Shield # 499), "John" Paccio, (Shield # 30126), "John" Goldman, (Shield # 1818), "John" Jenkins, (Shield # 10030), "John" Morgan, (Shield # 11995), first names being fictitious and John Hume, Thomas Loomis, Steve Kaminski, Mark Demarco, A
Case Date:June 28, 2004
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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374 F.3d 93 (2nd Cir. 2004)

Robert KERMAN, Plaintiff-Appellant,


THE CITY OF NEW YORK, "John" Dilucia, (Shield # 28683), "John" Crossin, (Shield # 499), "John" Paccio, (Shield # 30126), "John" Goldman, (Shield # 1818), "John" Jenkins, (Shield # 10030), "John" Morgan, (Shield # 11995), first names being fictitious and John Hume, Thomas Loomis, Steve Kaminski, Mark Demarco, Andrew Oberfeldt, James Moran, Edward Joergens and "John Doe", "Richard Roe", "Jane Doe", (the last three names being fictitious, said individuals being police officers or other employees of the City of New York who participated in taking plaintiff, Robert Kerman into custody or dispatching police officers to Robert Kerman's home as set forth in the complaint), Defendants-Appellees.

No. 03-7243.

United States Court of Appeals, Second Circuit

June 28, 2004

Argued: Nov. 3, 2003.

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Gregory Abbey, Brooklyn, New York, for Plaintiff-Appellant.

Marta Ross, Assistant Corporation Counsel, New York, New York (Michael A. Cardozo, Corporation Counsel for the City of New York, Edward F.X. Hart, William S.J. Fraenkel, New York, New York, on the brief), for Defendants-Appellees.

Before: FEINBERG, KEARSE, and RAGGI, Circuit Judges.

Judge RAGGI dissents, in part, in a separate opinion.

KEARSE, Circuit Judge.

This case returns to us after proceedings on remand following an appeal in which we, inter alia, reversed district judges' dismissals as a matter of law, on the ground of qualified immunity, of certain claims brought by plaintiff Robert Kerman under 42 U.S.C. § 1983 against defendant William Crossan (styled " 'John' Crossin" in the caption), a New York City police officer, in connection with Crossan's order that Kerman be detained and taken to a hospital for psychiatric observation, see Kerman v. City of New York, 261 F.3d 229 (2d Cir. 2001)

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(" Kerman II "), aff'g in part and rev'g in part Kerman v. City of New York, No. 96 Civ. 7865(LMM), 1999 WL 509527 (S.D.N.Y. July 19, 1999) (" Kerman I "). Kerman now appeals (a) from so much of the final judgment entered in the United States District Court for the Southern District of New York, following a retrial before Robert P. Patterson, Jr., Judge, as dismissed his Fourth Amendment unlawful seizure claim against Crossan, as well as his parallel state-law false imprisonment claims against Crossan and defendant City of New York ("City"), for unlawful detention and involuntary hospitalization; and (b) from a postjudgment order (i) denying, on the ground that Crossan is entitled to qualified immunity as a matter of law, Kerman's motion to correct the judgment in light of the jury's finding that Crossan had ordered Kerman's detention and involuntary hospitalization without probable cause, and (ii) denying Kerman's motion for a new trial as to damages for that deprivation of his liberty. On appeal, Kerman contends principally that the district court erred in ruling that Crossan was entitled to qualified immunity as a matter of law (1) because, there being no new evidence material to that issue, such a ruling was foreclosed by the Kerman II holding that Crossan was not entitled to qualified immunity as a matter of law, (2) because Crossan waived his qualified immunity defense by not pursuing it at trial, and (3) because the ruling was based on factual findings by the district court that usurped the function of the jury. Kerman also contends that the court abused its discretion in denying his motion for a new trial as to damages on his unlawful seizure and false imprisonment claims, given the jury's refusal to award more than nominal damages despite its finding that he had been deprived of his liberty without probable cause. Finding substantial merit in most of Kerman's contentions, we reverse so much of the judgment as dismissed the above claims, and we remand for a new trial as to damages on those claims.


The events leading to the present litigation are described in Kerman II, 261 F.3d at 232-34, familiarity with which is assumed. They are summarized below to the extent necessary for discussion of Kerman's Fourth Amendment and false imprisonment claims. To the extent that there are factual disputes relevant to defendants' liability on those claims, we view the record in the light most favorable to Kerman, both as the party in whose favor the jury found on the issue of unlawful deprivation of liberty and as the party against whom judgment was entered, on qualified immunity grounds, as a matter of law.

A. The Events

It is undisputed that at about 5 or 6 a.m. on October 20, 1995, Kerman, who had a history of depression and borderline personality disorder, telephoned his girlfriend Phyllis Landau and stated that he might purchase a gun to commit suicide and might kill his treating psychiatrist, Dr. Morris Brozovsky, as well. Landau was aware that Kerman had recently stopped taking antidepressant medication in preparation for his participation in an experimental study conducted by the New York State Psychiatric Institute at Columbia Presbyterian Hospital. At approximately 11 a.m., she telephoned Dr. Kevin Malone, the psychiatrist in charge of that study, and described her conversation with Kerman. On Dr. Malone's recommendation, Landau then called 911. She gave the 911 operator Kerman's address and telephone number and stated that a mentally ill man at that address had recently ceased taking antidepressant medication he had been

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taking for roughly 20 years, that he had called her that morning while drunk and irrational, and that he might have a gun. Landau did not disclose Kerman's name, her own name, or her relationship with Kerman.

The 911 operator relayed Kerman's address to City police officers, stating that there was an emotionally disturbed person there, possibly with a gun, but providing no further information. Shortly thereafter, a team of officers arrived at Kerman's apartment, rang the doorbell, and pounded on the door until Kerman responded. Kerman, who had been in the shower, eventually opened the door a crack wrapped in a towel, whereupon the officers burst through. Kerman testified that the door hit him in the head and knocked him to the floor and that, in the process, the towel in which he had wrapped himself came off, leaving him naked. The force of the entry also ruptured a plastic bag of used kitty litter, which Kerman had placed near the front door in order to remind himself to take it out, and strewed its contents across his foyer. Kerman, still wet from his shower, became covered in kitty litter when he was knocked to the floor.

The officers immediately handcuffed Kerman with his hands behind his back and searched his apartment for a gun. No gun was found.

Some 30 minutes after the officers' initial entry, two New York City emergency medical services paramedics arrived. Throughout this time, Kerman had remained handcuffed and naked. The police officer in charge was then-sergeant Crossan. At about 1:00 p.m., on Crossan's instructions, the paramedics placed Kerman, still handcuffed, in a "restraint bag" and took him to Bellevue Hospital. At Bellevue, Kerman's handcuffs were removed, but he was held overnight for observation. He was released the next day.

The evidence as to the relevant conduct of the respective parties at Kerman's apartment after completion of the search for a gun, and as to certain events at the hospital, is discussed more fully in Parts I.D., II.A.2., II.A.3., and II.C. below.

B. Kerman I and the First Trial

Kerman commenced the present action against the City, Crossan, and eight other City police officers under 42 U.S.C. § 1983, alleging, inter alia, that his Fourth Amendment rights had been violated by the warrantless entry into his apartment, by his initial seizure, and by his subsequent involuntary detention and hospitalization. Kerman also asserted that various ways in which the officers treated him after the initial seizure--which included keeping him naked, refusing to let him give medicine to his sick cat, sending him to the hospital, transporting him on his back with his hands painfully cuffed under his 270-pound body, and sending him to Bellevue Hospital rather than to a hospital closer to his home or to Dr. Malone--were motivated by Crossan's desire to retaliate against Kerman for exercising his First Amendment right by expressing derogatory views of the policemen in his apartment and threatening to sue them. The complaint also asserted state-law claims principally for battery, false imprisonment, and intentional infliction of emotional distress.

In Kerman I, District Judge Lawrence M. McKenna, to whom the case was then assigned, granted partial summary judgment in favor of all nine police officers, dismissing all of Kerman's claims except those alleging that the officers' actions after they handcuffed Kerman (1) violated his federal constitutional right not to be subjected to excessive force and (2) constituted battery in violation of state law. As

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to the dismissed claims against the individuals, the court ruled, inter alia, that the conduct attributed to them was reasonable and that they were thus entitled to qualified immunity as a matter of law on Kerman's First Amendment and unlawful seizure claims. See Kerman I, 1999 WL 509527, at *4-*8.

The court dismissed Kerman's § 1983 claims against the City for lack of any allegation or evidence that the alleged deprivations of his constitutional rights resulted from any municipal policy or custom. See id. at *8. The state-law battery claim against the City was not dismissed; the City does not dispute that it would be liable for intentional state-law torts found to have been committed by the...

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