Finnegan v. Fountain

• Decision Date: 01 October 1990
• Docket Number: No. 89-7832,89-7832
• Citation: 915 F.2d 817
• Parties: Patricia FINNEGAN, Plaintiff-Appellant, v. Richard FOUNTAIN, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

Page 817

915 F.2d 817

Patricia FINNEGAN, Plaintiff-Appellant, v. Richard FOUNTAIN, Defendant-Appellee.

No. 89-7832.

United States Court of Appeals Second Circuit.

Argued March 27, 1990.

Decided Oct. 1, 1990.

Arthur V. Graseck, Jr., Port Washington, N.Y., for plaintiff-appellant.

Caroline Levy (E. Thomas Boyle, Suffolk County Atty., Dennis E. Milton, Chief Deputy County Atty., of counsel), Hauppage, N.Y., for defendant-appellee.

Before OAKES, Chief Judge, WINTER, Circuit Judge, and MUKASEY, District Judge. ^*

OAKES, Chief Judge:

Patricia Finnegan appeals from a judgment of the United States District Court for the Eastern District of New York, Jacob Mishler, Judge, entered on August 21, 1989, dismissing her civil rights action against police officer Richard Fountain for the use of excessive force while placing her under arrest. The primary issue on this appeal is whether the jury's finding that Fountain acted in good faith when arresting Finnegan is consistent with its findings that Fountain intentionally used excessive force and that he did so maliciously, wantonly, or oppressively. Because we conclude that these findings are so inconsistent as to impair the parties' Seventh Amendment right to a trial by jury, we vacate and remand. On remand, the district court is instructed to amend its charge regarding the excessive-force claim and to determine as a matter of law whether the qualified immunity defense bars Finnegan's claim.

BACKGROUND

On January 8, 1982, police officer George Bodenmiller arrived at 11 Garden Lane in Commack, New York, to bring Patricia Finnegan into precinct headquarters for questioning about a stolen camera. He encountered her in the driveway while she was assisting an elderly woman into a car. When Finnegan allegedly insulted Bodenmiller and refused to go to the precinct with him, he announced that she was under arrest. Bodenmiller allowed her to take the elderly woman back inside the home, and he called for the assistance of Officer Fountain. In the meantime, Finnegan's mother, Dorothy Finnegan, arrived on the scene, allegedly shouted verbal insults at the officers, and joined her daughter inside.

Officers Bodenmiller and Fountain entered the house, allegedly with the permission of the elderly woman, to effect the arrest of Patricia Finnegan. Finnegan's version of events was that Fountain grabbed her and pushed her roughly into a wall. When her mother protested, she too was grabbed and pushed. Fountain dragged Patricia Finnegan out of the house by her hair and her arm and knocked her face and chin into the roof of his squad car. Bodenmiller and Fountain, on the other hand, testified that they made clear to Finnegan that she was under arrest before they touched her. Finnegan and her mother responded by screaming obscenities at them, and Finnegan's mother stepped between Bodenmiller and Finnegan to prevent the arrest and kicked Fountain in the groin three times. When the officers noticed two Doberman pinschers and a German shepherd starting to snarl from behind a child-protector gate, they hurriedly pulled the Finnegans out of the house.

Patricia Finnegan was arrested for criminal possession of stolen property and resisting arrest. Her mother was arrested Patricia Finnegan brought claims in the district court against Fountain, Bodenmiller, another police officer, the Suffolk County Police Commissioner, and Suffolk County, alleging pursuant to 42 U.S.C. Sec. 1983 and other civil rights statutes multiple violations of her rights under the First, Fourth, Fifth and Fourteenth Amendments of the Constitution, as well as malicious prosecution under state law. The case was consolidated with a similar action brought by Finnegan's mother and went to trial in December 1988.

for obstructing governmental administration, assault, and resisting arrest.

Following closing arguments, the jury received a special verdict form concerning Patricia Finnegan's claims. Questions four and five inquired whether the police officers used excessive force. The jury was instructed that excessive force under New York law "means greater force than is reasonably necessary under all the circumstances to effect the arrest." Tr. Trans. at 1069. ¹ Question four asked: "Did Fountain and/or Bodenmiller intentionally use excessive force in making the arrest of Patricia Finnegan?" The jury answered "yes." Question five asked: "Did either or both of the following defendants use excessive force in arresting Patricia Finnegan?" The jury answered "yes" for Fountain and "no" for Bodenmiller. Taken together, the answers to questions four and five meant that the jury found that Fountain intentionally used excessive force.

Question six of the special verdict was directed at Fountain's and Bodenmiller's defense of qualified immunity, or what the district court called the "good faith" defense. The jury was instructed as follows:

If the defendant reasonably believed that he was acting in good faith in the manner in which he performed his duties and he believed that it was in accordance with established law, then he establishes the good faith defense.

....

[D]id the police officer who is charged with using excessive and unreasonable force at the time he was making the arrest believe that he was using reasonable force and sufficient force under all the circumstances to effect the arrest?

See Tr. Trans. at 1070-71. Question six, subpart (c), asked: "Did the defendants have a good faith belief that there was probable cause to believe that: ... (c) the force used in placing Patricia Finnegan under arrest was reasonably necessary to place her under arrest?" The jury responded "yes" to this question.

After the jury returned the verdict, the district court expressed doubt that the good faith defense as a matter of law could be invoked against an excessive force claim, apparently because both the claim and the defense involve similar and possibly duplicative inquiries into whether force was used reasonably. The court observed that if it concluded that the defense did apply, Finnegan's action would have to be dismissed without the jury having had the opportunity to pass on the issues of causation and damages. If the immunity defense was later found on appeal not to apply, the court noted, a whole new trial would be necessary. See Tr. Trans. at 1145-48. Concluding that it was satisfied from its preliminary research that the defense was unavailable, the court directed the jury the following day to render a second special verdict on the issues of causation and damages.

In the second special verdict, the jury found that Fountain's excessive use of force caused injury to Finnegan in the amount of $25, but also awarded punitive damages of $5,500, finding that Fountain had acted "maliciously or wantonly or oppressively." The district court then entered judgment in favor of Finnegan. However, in response to Fountain's motion

for a judgment notwithstanding the verdict, the court reversed course and determined that the good faith defense did indeed apply. On August 21, 1989, the court entered judgment dismissing Finnegan's complaint.

DISCUSSION

A. Consistency of the Special Verdicts

Our review of the proceedings before the district court leaves us with an unmistakable impression that the jury was confused in its findings. The jury concluded in question six that Fountain had acted in good faith, applying no more force than he thought necessary, but, on the very next day, it found that Fountain acted maliciously, wantonly, or oppressively.

The Seventh Amendment right to a jury trial precludes entry of a judgment based on an inconsistent jury verdict that thereby disregards any material jury finding. See Auwood v. Harry Brandt Booking Office, Inc., 850 F.2d 884, 890-91 (2d Cir.1988). If an irreconcilable inconsistency is not noticed until after the jury has been dismissed, an appellate court on review must vacate the judgment and order a new trial. See id. at 891.

We are of course mindful that "[w]here there is a view of the case that makes the jury's answers to special interrogatories consistent, they must be resolved that way." Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 364, 82 S.Ct. 780, 786, 7 L.Ed.2d 798 (1962). Before we consider whether there is any view of the case that might reconcile the jury's findings, we pause to observe that neither of the parties moved before the district court or have requested on this appeal that a new trial be ordered on grounds of inconsistency of the verdicts. In fact, both parties seek to explain away the seeming inconsistencies to justify a verdict in their favor. We are presented with the issue, therefore, whether the parties' failure to request a new trial by post-trial motion or on appeal precludes us from considering whether the verdicts were inconsistent. ² At least one circuit has found that it does. See Alderman v. Tandy Corp., 720 F.2d 1234, 1236-37 (11th Cir.1983). We do not agree. When the bases for a final judgment are self-contradictory, we think the preferable rule to be that an appellate court has the power to review that judgment, notwithstanding failure of the parties to object or to move before the district court. See Fugitt v. Jones, 549 F.2d 1001, 1004-05 (5th Cir.1977) (failure to move for new trial before district court does not preclude appellate review of whether answers to special verdict questions were inconsistent and thus failed to support judgment entered); 9 C. Wright & A. Miller, Federal Practice and Procedure Sec. 2515 (1990).

We are unable to reconcile the second verdict with the first. The jury's finding in the second verdict that Fountain acted "maliciously or wantonly or oppressively" plainly contradicted its answer to question six that Fountain acted with a "good faith belief" that the force he used was reasonably necessary and was, as the district court instructed, "in accordance with established law." ³ See Bates v. Jean, 745 F.2d...