944 F.2d 91 (2nd Cir. 1991), 90-7914, Posr v. Doherty

Docket Nº:Dockets 90-7914, 90-7916.
Citation:944 F.2d 91
Party Name:Posr Amojo POSR, Plaintiff-Appellee, Cross-Appellant, v. New York City Police Officer Kevin DOHERTY, Shield # 4478, and New York City Police Officer, Thomas Holihan, Shield # 9061, Defendants-Appellants, Cross-Appellees. Nos. 1042, 1155,
Case Date:September 10, 1991
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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944 F.2d 91 (2nd Cir. 1991)

Posr Amojo POSR, Plaintiff-Appellee, Cross-Appellant,


New York City Police Officer Kevin DOHERTY, Shield # 4478,

and New York City Police Officer, Thomas Holihan,

Shield # 9061, Defendants-Appellants,


Nos. 1042, 1155,

Dockets 90-7914, 90-7916.

United States Court of Appeals, Second Circuit

September 10, 1991

Argued Feb. 15, 1991.

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[Copyrighted Material Omitted]

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James I. Myerson, New York City, for plaintiff-appellee, cross-appellant.

Marian P. McElhinney, New York City (Victor A. Kovner, Corp. Counsel of the City of New York, Stephen J. McGrath, John P. Woods, Lisa A. Miller, of counsel), for defendants-appellants, cross-appellees.

Before PIERCE, WINTER and WALKER, Circuit Judges.

WALKER, Circuit Judge:

Posr Amojo Posr appeals from a judgment of the United States District Court for the Southern District of New York, (Robert J. Sweet, Judge ) following a jury trial on Posr's 42 U.S.C. § 1983 and state law tort claims arising from an altercation between him and several New York City Police officers, among them officers Kevin Doherty and Thomas Holihan, at a protest march for the homeless in New York City on February 14, 1987. At trial Posr claimed that he was unconstitutionally and unlawfully accosted, beaten, arrested, and jailed for forty hours, until he was able to post bail, on charges that were ultimately dropped.

The jury found both officers liable for using excessive force. The jury also found Doherty not liable and Holihan liable for false arrest, but the district court granted judgment n.o.v. setting aside the verdict as to Holihan. Finally, the jury found Doherty not liable for malicious prosecution.

On appeal, Posr attacks the judgment n.o.v. exonerating Holihan on the false arrest claim, and the jury verdict of no liability on the malicious prosecution claim against Doherty. He argues that the jury's verdict as to Holihan was correct both factually and legally and that the jury instructions on the malicious prosecution claim against Doherty were erroneous. Because we believe that Holihan's actions could have amounted to an arrest, but that the question of whether Holihan arrested Posr separately from Doherty was not properly presented to the jury, we reverse the judgment n.o.v. on that issue and remand the issue to be retried. We also reverse the verdict of no liability on the malicious prosecution claim and order a new trial on this issue as well.

Officers Holihan and Doherty cross-appeal from the judgments against them for excessive force. They argue that they established a qualified immunity defense, and that the excessive force verdicts were against the weight of the evidence. Because we believe that the jury could have found that the officers could not have reasonably believed that their conduct did not violate Posr's rights, we reject the officers' qualified immunity argument. We also hold that the excessive force verdicts were supported by sufficient evidence.

Affirmed in part, reversed in part, and remanded for a new trial on the false arrest claim as to Holihan, and the malicious prosecution claim.


On February 14, 1987, Posr joined about 80 to 100 other people in a protest march in New York City organized by the Listeners

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Action on Homelessness and Housing. The march was to proceed from the Holland Hotel between Eighth and Ninth Avenues along 42nd Street easterly to the United Nations where a "tribunal" was to be conducted on homelessness and housing. The march went forward in an orderly fashion to Grand Central Station, passed through the terminal without incident, emerged on 42nd Street at Lexington Avenue, and continued along 42nd Street to Second Avenue, where it was turned north by the police to 47th Street, and was allowed to resume its easterly direction. At the intersection of 42nd Street and Second Avenue the events that prompted this lawsuit took place. Not surprisingly, witness accounts of what happened there vary. Since the jury found for the plaintiff on the excessive force and false arrest claims appealed from by each side, we are required to view the disputed facts relating to the incident in the light most favorable to plaintiff Posr.

Viewed in this light, the jury could reasonably have found that as the march was turned north by the police from 42nd Street onto the east sidewalk of Second Avenue, the marchers tried to reposition a large banner that had been facing south along 42nd Street so that it would face west from the east side of Second Avenue. In the process, one Mendelsohn, the banner's bearer and a witness for Posr, stepped from the curb into the street where he was pushed by Officer Holihan. Posr, near the building line on the northeast corner of 42nd Street and Second Avenue, saw the pushing and took one or more steps past Ticktin, another witness, toward Officer Holihan and Mendelsohn.

Holihan then turned toward Posr and, according to Mendelsohn, "all of a sudden ... jumped on Charles [Posr] and quickly hustled him, pushing him up against the wall and proceeded to hit him ... I'd say he was hit about--landed many, 20 times." Ticktin testified that after Posr passed her, her next memory was "a couple of them shoving him and hitting him at the same time. Sort of they were beating him and moving him northward on the street" ... "it seemed like they were immediately on him" and she remembers the plaintiff "being beaten by a couple of police officers." She testified that she was not aware of losing sight of Posr and that at no time did she see him throw a punch or hit a police officer.

Posr, who at the time of the incident was named Charles Johnson, testified that when he turned to watch the maneuvering of the banner, he saw Officer Holihan take some steps and push Mendelsohn. He then saw Holihan leave Mendelsohn, push at least one other individual and begin running directly at him after he had made a movement to get a better view. Posr moved to his right and held out his arms to protect himself. As Holihan was upon him, Holihan said "Assaulting an officer, you are dead." Holihan then slammed Posr back into the building and held him there as Posr struggled. Moments later, Officer Doherty, along with other police officers, came to Holihan's assistance. Doherty used a night stick on Posr. Posr then attempted to grab the night stick. He heard one of the officers say "I got him" and, believing the assault to be over, became still, but was then struck by a night stick twice in the solar plexus.

Posr then broke away from the officers but was apprehended after a short chase. Thereafter, Doherty formally placed Posr under arrest. A complaint, supported by Doherty's affidavit, was filed with the Criminal Court of the City of New York charging Posr with disorderly conduct, resisting arrest and assault in the third degree. Posr, unable to make bail, was detained for forty hours until a friend posted bail and he was released. No further action was taken against Posr and on August 21, 1987, all charges against him were dismissed on the motion of the District Attorney for New York County.

Posr sued officers Doherty and Holihan in the United States District Court for the Southern District of New York. His claims were grouped in three pairs, each consisting of a claim under 42 U.S.C. § 1983 and a state law tort counterpart: (1) § 1983 use of excessive force and state law assault and battery; (2) § 1983 unlawful arrest and detention and state law false arrest; and

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(3) § 1983 malicious prosecution and state law malicious prosecution. This pairing was appropriate since, except for § 1983's requirement that the tort be committed under color of state law, the essential elements of the two claims in each pair were substantially identical. See Raysor v. Port Authority of New York and New Jersey, 768 F.2d 34, 40 (2d Cir.1985), cert. denied, 475 U.S. 1027, 106 S.Ct. 1227, 89 L.Ed.2d 337 (1986). For convenience we refer to the three pairs as the excessive force claim, the false arrest claim and the malicious prosecution claim.

The jury found both defendants liable on the excessive force claim and awarded Posr $5,000 in compensatory and $10,000 in punitive damages against each defendant on those claims. It found Holihan liable for false arrest, but not Doherty, and awarded Posr $10,000 in compensatory and $10,000 in punitive damages against Holihan. Doherty, charged alone with malicious prosecution, was found not liable on that claim.

After the trial, the officers timely moved pursuant to Rule 50(b), Fed.Rules Civ.Proc., for a judgment n.o.v. dismissing all claims for which they had been found liable. The district court let the excessive force verdicts stand against both officers but set aside the false arrest verdict against Holihan. The district court also denied Posr's motion for a new trial based on a claim of error in its instructions to the jury on malicious prosecution. From these various rulings the plaintiff appeals and the defendants cross-appeal.


At the outset, we note that the defendant officers precipitated this appeal by challenging the excessive force finding. Posr, whose counsel told us at oral argument that he would not have otherwise appealed, then appealed from the district court's post-trial dismissal of the false arrest verdict against Holihan and from the district court's jury instructions on the malicious prosecution claim. Based on an order filed November 11, 1990, pursuant to Rule 28(h), I.R.A.P., the plaintiff was redesignated as the appellant and the defendants were redesignated as the appellees.

It is worth pausing to question why the officers, having escaped from the district court with liability verdicts on only the excessive force claims--quintessential jury issues in the context of this case--chose to bring the matter to this court thereby triggering appeals...

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