Hygh v. Jacobs

• Decision Date: 09 April 1992
• Docket Number: D,Nos. 1782-1784,s. 1782-1784
• Citation: 961 F.2d 359
• Parties: 35 Fed. R. Evid. Serv. 532 William C. HYGH, Plaintiff-Appellee-Cross-Appellant, v. William JACOBS, Defendant-Appellant-Cross-Appellee, Gerald Cosenza, The Village of Catskill, New York, Charles Adsit, and John Doe 1 Through 4, Defendants. ockets 91-7317, 91-7331, and 91-7403.
• Court: U.S. Court of Appeals — Second Circuit

Page 359

961 F.2d 359

35 Fed. R. Evid. Serv. 532

William C. HYGH, Plaintiff-Appellee-Cross-Appellant, v. William JACOBS, Defendant-Appellant-Cross-Appellee Gerald Cosenza, The Village of Catskill, New York, Charles Adsit, and John Doe 1 Through 4, Defendants.

Nos. 1782-1784, Dockets 91-7317, 91-7331, and 91-7403.

United States Court of Appeals, Second Circuit.

Argued July 23, 1991.

Decided April 9, 1992.

John M. Denby, Uniondale, N.Y. (Evan H. Krinick, Rivkin, Radler, Bayh, Hart & Kremer, John J. Clyne, Delmar, N.Y., of counsel), for defendant-appellant-cross-appellee.

Stephen R. Coffey, Hudson, N.Y. (David M. Cherubin, Connor, Curran & Schram, Hudson, N.Y., O'Connell & Aronowitz, P.C., Albany, N.Y., of counsel), for plaintiff-appellee-cross-appellant.

Before: WINTER, ALTIMARI, and MAHONEY, Circuit Judges.

MAHONEY, Circuit Judge:

Invoking 42 U.S.C. § 1983 (1988), plaintiff-appellee-cross-appellant William C. Hygh sued a number of defendants for alleged constitutional violations stemming from his arrest by defendant-appellant-cross-appellee William Jacobs, a police officer of the Village of Catskill, New York, on May 21, 1987. Hygh attained judgments only against Jacobs, for (1) compensatory damages of $216,000.00 for excessive force in arresting Hygh, and $65,000.00 for false arrest; (2) nominal damages of $1.00 for malicious prosecution; and (3) punitive damages of $1,000.00. Hygh was also awarded $57,751.25 in attorney's fees and $4,508.50 in disbursements pursuant to 42 U.S.C. § 1988 (1988).

Jacobs appeals from post-trial orders that denied his motions for a new trial. Those motions asserted that (1) the verdicts of liability for false arrest and excessive use of force were contrary to the weight of the evidence, and (2) damages awarded for these claims were excessive. Jacobs also appeals from the judgment awarding attorney's fees and disbursements to Hygh. Hygh cross-appeals, seeking reinstatement of a jury award of $36,000.00 in compensatory damages for malicious prosecution that the district court reduced to $1.00 in nominal damages.

We reverse the judgment of liability for malicious prosecution. We vacate the award of $65,000 for false arrest and remand for a new trial. The award of attorney's fees is remanded for further proceedings consistent with these rulings. The judgment of liability for excessive use of force and for punitive damages is affirmed.

Background

On the evening of May 21, 1987, Hygh visited his friend Deborah Moore at her Catskill home, during which visit he consumed two beers. The couple had a disagreement, and Hygh departed. Once outside, he removed a propane tank attached to the house and placed it on the ground. Moore then became alarmed, and instructed her daughter to telephone the police.

Jacobs arrived shortly thereafter, and a heated exchange between Hygh and Jacobs took place. Hygh volunteered that if Jacobs had any charges, Jacobs should arrest him. After further conversation, a shoving match ensued, during which Jacobs informed Hygh that he was under arrest. At this juncture, Jacobs struck Hygh in the cheek. Hygh claims that Jacobs struck him in the face from behind while Hygh was bending over to pick up his jacket after being informed that he was under arrest. Jacobs asserts that he hit Hygh with his fist in self-defense, while they were erect and facing each other, after being shoved by Hygh.

In any event, the blow to Hygh's cheek fractured his cheekbones, and plastic surgery under general anesthesia was subsequently required to deal with the injury. The plastic surgeon who performed the operation testified that the infliction of the injuries suffered by Hygh "would take ... an extremely strong blow. And classically it's a blunt instrument of some sort that we would see it." He also testified that Hygh suffered permanent nerve damage as a result of the blow. Jacobs testified that because the confrontation with Hygh occurred at night, he had a flashlight in one hand throughout the encounter.

Hygh was handcuffed and taken to the Catskill police station, where he was fingerprinted and photographed. After booking, the police took Hygh to the Greene County Memorial Hospital for treatment. He was then arraigned on charges of disorderly conduct and resisting arrest. Following arraignment, Hygh was incarcerated in the Greene County jail overnight.

At trial, Hygh called Terry C. Cox, a professor at Eastern Kentucky University, as an expert witness concerning law enforcement. Citing the results of a study in which he had participated, Cox testified that the use of a flashlight as an offensive or defensive weapon greatly increased the risk of physical injury posed by the use of a baton or nightstick. Cox also testified that in his opinion, the use of a baton or flashlight to strike a person in the head would constitute "deadly physical force" that would not be "justified under the circumstances." He further testified that, accepting Hygh's version of his encounter with Jacobs, there was no "real legitimate reason" for the use of "any force" by Jacobs.

In answer to a question whether, accepting Jacobs' version of the incident (including the dubious premise that Jacobs conceded that he hit Hygh with his flashlight rather than his fist), "Jacobs acted in an objectively reasonable manner for a police officer under the circumstances as he described them," Cox responded that Jacobs had employed "deadly physical force" whose use was not "warranted under the circumstances." He further testified that Jacobs' conduct in these circumstances was "totally improper." Cox subsequently described "deadly physical force" as "using force in such a way that it has the potential to kill someone."

In its charge to the jury, the district court set forth the elements of a § 1983 claim, and then addressed various New York statutes that bore upon the legality of Hygh's arrest, which resulted in charges of disorderly conduct and resisting arrest. In the course of this instruction, after outlining the various forms of disorderly conduct punishable under the pertinent New York statute, one of which is "us[ing] abusive or obscene language, or mak[ing] an obscene gesture," see N.Y. Penal Law § 240.20(3) (McKinney 1989), the court added the following comment.

In connection with the above statutory definitions which I just read to you, you are also charged that not every obscene or abusive word or gesture constitutes the offense of disorderly conduct. Disorderly conduct may occur where defendant, in a public place, uses abusive language or obscene language or makes obscene gestures which, in turn, provoke a breach of peace or create a public disturbance. When I use the word defendant, I meant the defendant in the disorderly conduct meeting, not the defendants here.

In its instruction concerning Hygh's claim for malicious prosecution, the district court charged that a termination favorable to Hygh of the criminal charges brought against him was an essential element of his claim, but that this element had been established as a matter of law.

The jury returned verdicts in favor of Hygh against Jacobs on the claims of excessive force for $216,000.00, false arrest for $108,000.00, and malicious prosecution for $36,000.00. Initially, however, the jury found that the malicious prosecution did not proximately cause any injury to Hygh. The court drew the inconsistency to the attention of the jury, which upon further deliberation found that the tortious conduct was a proximate cause of injuries suffered by Hygh. The jury also determined that Hygh was entitled to recover punitive damages from Jacobs, which were set at $1,000.00 after a subsequent hearing on that issue.

After the jury had rendered its verdict, Jacobs moved for judgment notwithstanding the verdict as to the claim for malicious prosecution, and for a new trial as to the remainder of the judgment. In response, the district court ruled that there was "simply no proof that the malicious prosecution caused any actual injury warranting the award of [$36,000] compensatory damages," and awarded instead one dollar in nominal damages. The court also found the award of $108,000 for false arrest to be excessive, and ordered Hygh to accept a reduction in compensatory damages for false arrest to $1,000 or undergo a new trial on the issue of such damages. Jacobs' motion was denied in all other respects.

Hygh declined to accept the proposed reduction in the false arrest award, and accordingly a second trial was held on this issue. At that trial, Hygh introduced substantial evidence regarding events that occurred at the Greene County jail after his arraignment, without objection by Jacobs (except as hereinafter specified). Hygh also introduced a mugshot photograph of himself taken at the Greene County jail that depicted his facial injuries, over objection by Jacobs that the photograph's prejudicial impact outweighed its evidentiary value. The court instructed the jury that the photograph was "being received for a limited purpose only; that is, to demonstrate to you the fact that he was going through the booking process."

Finally, during cross-examination, Hygh volunteered testimony that he was in "[e]xcruciating pain" at the Greene County jail, and then added that the police "had already broken three bones in my face" when defense counsel attempted to dampen the effect of the volunteered testimony by further cross-examination. Jacobs moved for a mistrial, but the court instead gave a limiting instruction that the jury should disregard Hygh's testimony concerning his pain and injuries (which had been fully compensated by the prior $216,000 verdict for excessive use of force). The jury then returned a verdict of $65,000 in damages for false arrest. Jacobs moved to set the verdict aside, but the district court denied the motion, stating: "The verdict is not contrary to law and, two juries having spoken and more evidence having been presented the...