Dancy v. McGinley, Docket Nos. 15-140-cv(L)

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: Chin, Circuit Judge
• Citation: 843 F.3d 93
• Parties: Jarquez Dancy, Plaintiff–Appellant, Jayvon Elting, Plaintiff–Appellee, v. Police Officer Gregg McGinley, Defendant–Appellant, Police Officer John Williams, Defendant–Appellee.
• Docket Number: Docket Nos. 15-140-cv(L),15-1876-cv(CON),15-1950-cv(XAP)
• Decision Date: 07 December 2016

843 F.3d 93

Jarquez Dancy, Plaintiff–Appellant,

Jayvon Elting, Plaintiff–Appellee,
v.
Police Officer Gregg McGinley, Defendant–Appellant,

Police Officer John Williams, Defendant–Appellee.

Docket Nos. 15-140-cv(L)
15-1876-cv(CON)
15-1950-cv(XAP)

United States Court of Appeals, Second Circuit.

Argued: May 2, 2016
Decided: December 7, 2016

843 F.3d 99

Stephen Bergstein , Bergstein & Ullrich, LLP, Chester, NY, for Plaintiff–Appellee Jayvon Elting.

Christopher D. Watkins , Sussman & Watkins, Goshen, NY, for Plaintiff–Appellant Jarquez Dancy.

John M. Murtagh (Denise M. Cossu, on the brief), Gaines, Novick, Ponzini, Cossu & Venditti, LLP, White Plains, NY, for Defendant–Appellant Police Officer Gregg McGinley and Defendant–Appellee Police Officer John Williams.

Before: Livingston, Chin, and Carney, Circuit Judges.

Chin, Circuit Judge:

On Friday, October 2, 2009, around 11 p.m., two high school students, Jarquez Dancy and Jayvon Elting, were walking on Main Street in Poughkeepsie, New York. They had been watching a movie at a friend's house, and were returning to Dancy's home, where Elting was to be picked up by his mother.

Police Officer Gregg McGinley stopped them. Both Dancy and Elting are African American, and there had been a report over the police radio of a robbery a few blocks away, with a description of the assailant: "Thin black male, brown jacket." Other officers (including Police Officer John Williams) arrived, and a confrontation ensued that left Elting bruised, scraped, and swollen, and Dancy with a broken jaw. Elting was arrested for obstruction of governmental administration, resisting arrest, and possession of a controlled substance; Dancy was arrested for attempted robbery. Both spent the night in jail before being released the next evening to their respective mothers. The attempted robbery charge against Dancy was eventually dropped. Elting agreed to an adjournment in contemplation of dismissal.

Elting and Dancy brought a civil rights action in federal district court alleging, inter alia , false arrest and use of excessive force. At trial, before the case was submitted to the jury, the district court entered judgment as a matter of law in favor of Elting on liability as to his claims against McGinley for false arrest and use of excessive force, and thereafter the jury awarded him $215,000, which the district court remitted to $196,500. The jury found in favor of Williams on Dancy's claim for false arrest, but was unable to reach a verdict on Dancy's excessive force claim. At a second trial, the jury found in favor of Williams on Dancy's excessive force claim. The district court denied Dancy's motion for a new trial. McGinley and Dancy appeal.

We affirm the judgment in favor of Elting and the amount of damages, but vacate the judgment in favor of Williams and remand for a new trial on Dancy's excessive force claim.

BACKGROUND

I. The Facts

We recount the facts with the following principles in mind. With respect to Elting's claims against McGinley, we view the evidence from the first trial in the light most favorable to McGinley and draw all reasonable factual inferences in his favor, as the district court granted judgment against him on liability as a matter of law. See Diesel v. Town of Lewisboro , 232 F.3d 92, 103 (2d Cir. 2000). In determining whether the jury awarded excessive damages, however, "we ‘view the evidence and draw all factual inferences in favor of [Elting],’ and we ‘accord substantial deference to the jury's determination of factual issues.’ " Scala v. Moore McCormack Lines, Inc. , 985 F.2d 680, 683 (2d Cir. 1993) (first quoting Wheatley v. Ford , 679 F.2d 1037, 1039 (2d Cir. 1982), and then quoting

843 F.3d 100

Martell v. Boardwalk Enters., Inc. , 748 F.2d 740, 750 (2d Cir. 1984) ).

As to Dancy's claims against Williams, we assess only the legal accuracy of the jury instruction, and will reverse upon a finding of error only where, "based on a review of the record as a whole, the error was prejudicial or the charge was highly confusing." Hudson v. New York City , 271 F.3d 62, 67–68 (2d Cir. 2001) (alteration omitted) (quoting Terminate Control Corp. v. Horowitz , 28 F.3d 1335, 1345 (2d Cir. 1994) ); see also Cobb v. Pozzi , 363 F.3d 89, 118 (2d Cir. 2003) (concluding that error in jury instruction was not harmless where "th[e] evidence could support a jury's reaching the opposite conclusion" had it been instructed correctly).

A. Overview

Some basic facts are undisputed. On the evening of October 2, 2009, Elting and Dancy, seventeen and eighteen years old, respectively, and both in high school, were walking on Main Street in Poughkeepsie, New York. They had been watching a movie at a friend's house and were walking back to Dancy's home, where Elting was to be picked up by his mother. Dancy was wearing a camouflage-patterned coat, with green, light green, and brown patches.

McGinley and Williams were police officers employed by the Poughkeepsie Police Department. McGinley decided to stop Elting and Dancy after hearing a radio transmission about an attempted robbery nearby. McGinley had informed other officers over the radio that he was going to stop a suspect, and, approximately ten seconds later, Williams arrived as McGinley made contact with the two teenagers. Williams led Dancy to the nearby patrol car, while McGinley engaged in a dialogue with Elting. Altercations ensued. McGinley arrested Elting for obstruction of governmental administration, resisting arrest, and criminal possession of a controlled substance in the seventh degree for crack cocaine allegedly found in Elting's pocket during the course of the arrest.¹ Dancy was arrested for attempted robbery after the robbery victim was brought to the scene and identified Dancy as his assailant.²

Both Elting and Dancy were detained overnight until they were bailed out by their mothers the following evening. They both visited the hospital for injuries the day after being released from jail. Medical records show that Elting was in pain and had bruises and abrasions on his face, head, and torso. A CAT scan revealed no fractures and his injuries healed within two to three weeks. Dancy was diagnosed with a fractured jaw, which required surgery. His jaw was wired shut for six weeks.

The attempted robbery charge against Dancy was later dismissed in the interest of justice. Elting received an adjournment in contemplation of dismissal for all three charges.

843 F.3d 101

B. Elting's Claims Against McGinley

i. The Stop and Arrest

At approximately 11:00 p.m. that evening, Officer Craig arrived at City Center Deli, where he spoke with the victim of an attempted robbery that had occurred some minutes prior. The victim had been struck in the head and knocked to the ground. The victim provided Craig with a description of the assailant, and Craig broadcast it over the police radio: "Thin black male, brown jacket." J. App. 431. The description orally transmitted by Craig over the radio was recorded by a civilian dispatcher in a dispatch narrative report.³ According to the dispatch report, the transmission was sent at 11:02 p.m.

Officer McGinley had been out patrolling in his marked police vehicle when heard over his radio that a robbery had taken place at City Center Deli, located at 472 Main Street, and a suspect was at large. Upon hearing the report, McGinley drove towards the crime scene. On the way, he saw two young African–American men walking west on Main Street, in a direction away from City Center Deli.⁴ He believed one of them (later identified as Dancy) "somewhat matched" the suspect's description. J. App. 280. McGinley kept an eye on them as they turned south onto South Hamilton Street, and then east onto Cannon Street, back towards City Center Deli. He was waiting for "some personal observation to go with the description." J. App. 282. While he was following them in his police car, he found it suspicious that they "looked over their shoulders numerous times" at the car. J. App. 301. At that point, he considered Dancy a "suspect" and Elting a "subject, a person of interest" because Elting had looked over his shoulder at the police car "numerous times," and because he was in the "presence of a suspect." J. App. 300–01.

McGinley radioed his intention to stop a possible suspect near 134 Cannon Street. He then pulled over, exited his vehicle, and approached Dancy and Elting. He "asked them if [he] could talk to them for a minute," and told them that Dancy fit the description of a suspect. J. App. 282.

Officer Williams was on duty in the area and arrived on the scene almost immediately, approximately ten seconds after McGinley. When he arrived, he led Dancy away from Elting toward the nearby police car. Williams ordered Dancy to place his hands on the hood of the car.

Elting began using a cell phone. McGinley instructed him not to use the phone. When Elting did not put the phone away, McGinley told him three more times—in a louder, more commanding voice, and with a "changed" "demeanor"—not to use the phone. J. App. 370. They were within one or two feet of each other at the...