Rivera v. La Porte

• Decision Date: 16 February 1990
• Docket Number: No. 668,D,668
• Parties: Luis M. RIVERA, Plaintiff-Appellee, v. Evangelio LA PORTE, Defendant-Appellant. ocket 89-7699.
• Court: U.S. Court of Appeals — Second Circuit

Page 691

896 F.2d 691

Luis M. RIVERA, Plaintiff-Appellee, v. Evangelio LA PORTE, Defendant-Appellant.

No. 668, Docket 89-7699.

United States Court of Appeals, Second Circuit.

Argued Jan. 10, 1990.

Decided Feb. 16, 1990.

Irving Anolik, New York City, for defendant-appellant.

Eugene N. Harley, New York City (Levy, Gutman, Goldberg & Kaplan, New York City, on the brief), for plaintiff-appellee.

Before MESKILL and NEWMAN, Circuit Judges, and POLLACK, Senior District Judge. ^*

JON O. NEWMAN, Circuit Judge:

This appeal presents the apparently novel issue of whether a jury's report of a deadlock on some counts of a complaint in a civil suit may be relied upon to demonstrate an inconsistency with verdicts returned on other counts. The appeal also reveals the hazards of submitting cases of more than minimal complexity to a jury without a written form calling for either special verdicts or answers to interrogatories. Evangelio LaPorte appeals from the June 6, 1989, judgment of the District Court for the Southern District of New York (Shirley Wohl Kram, Judge) awarding Luis Rivera $25,000 after a jury found LaPorte liable to Rivera for the denial of federally protected civil rights and for the state law tort of malicious prosecution. We affirm.

Facts

This lawsuit arose from a traffic dispute that escalated into violence. The jury was entitled to find the following facts. LaPorte is a New York City corrections officer. On the day in question, while off duty, he was driving to a boat show at the New York Coliseum. He stopped his van on 61st Street behind cars waiting to turn into a parking lot that he too planned to enter. Cars were parked on both sides of the street, leaving what should have been two lanes for driving, one of which was occupied by the line of double-parked cars outside the parking lot. Rivera was driving a car behind LaPorte's van. Finding passage along 61st Street blocked by the van, Rivera went to the window on the driver's side and asked the driver to move his van slightly to the right to permit traffic to pass. LaPorte kept his window rolled up and ignored Rivera's request. A few moments later Rivera again appealed to the driver and again received no response. With traffic behind him building up, Rivera made his request through the closed van window a third time.

At this point, LaPorte came out of the van, pushed Rivera to the ground, jumped on him, kicked him, and struck him on the forehead and eye with a blunt object. LaPorte then yelled, "I'm a police officer, you're under arrest." LaPorte handcuffed Rivera and asked a bystander to call the police. When a police car arrived, LaPorte placed Rivera in the rear seat of the car, got in the rear seat with him, and was driven by a police officer to a police station. With LaPorte in attendance at all times, Rivera was questioned, taken to a hospital, taken to central booking, and finally released late that same night.

Rivera was tried in state court on charges of assault and harassment. At that trial LaPorte claimed that Rivera had precipitated the altercation first by shoving LaPorte's wife, who, LaPorte contended, was standing next to the two men as they argued over the traffic problem, and then by punching LaPorte in the face. LaPorte acknowledged hitting Rivera, but claimed he did so in self-defense. Rivera denied touching LaPorte in any way. Rivera also disputed whether LaPorte's wife was present at the scene. In the state court criminal case, Rivera was acquitted. He then filed a five-count complaint in the District Court, alleging a violation of his civil rights, 42 U.S.C. Sec. 1983 (1988), and four state law torts--malicious prosecution, assault, false arrest, and false imprisonment.

At the federal trial, neither Rivera's counsel nor the trial judge, in her initial instructions, provided the jury with a precise understanding of the theory of plaintiff's civil rights claim. Counsel argued generally, without focusing on the separate causes of action, that it was unlawful for LaPorte to have arrested and assaulted Rivera. The trial judge initially characterized the section 1983 claim as a denial of civil rights "by the use of excessive force in making an arrest while acting under color of state law." In instructing on the claim, however, Judge Kram identified two constitutional rights, a right "not to be arrested without due process of law" and a right "not to be subjected to unreasonable or, in other words, excessive force while being arrested." In charging the elements of the section 1983 cause of action, the trial judge did not clarify the confusion but simply stated that Rivera must show that LaPorte's acts "caused him to suffer the loss of a federal right." A further instruction explained "excessive force," though it was not made clear whether this explanation related to the common law assault claim, the civil rights claim, or both. With respect to the state law torts, Judge Kram fully explained the elements of each tort. In particular, she instructed that the jury could find for the plaintiff on the malicious prosecution claim if the plaintiff proved both that LaPorte did not have probable cause and that he acted maliciously.

Since the jury had not been given a verdict form, it is not surprising that their first note to the judge asked, "What are the specific charges against Mr. LaPorte for which we must bring in a decision and what the counter-charges are?" After colloquy with counsel, Judge Kram answered that Rivera had made the following claims against LaPorte: "One, that defendant LaPorte is liable under state law for assault, false arrest, false imprisonment and malicious prosecution. Two, that Mr. LaPorte violated plaintiff's civil rights under the United States Constitution by the use of excessive force in making an arrest while acting under color of state law." She also explained that there were no counterclaims. Later in the deliberations, the jury asked to have reread the claims Rivera was making, other than the civil rights claim.

The jury ultimately reported its verdict as follows:

We, the jury, find Mr. LaPorte guilty on the following counts:

1. Malicious prosecution.

2. Violation of civil rights.

We cannot unanimously agree on the following counts:

Assault, false arrest, excessive force.

The last of the four state law torts submitted to the jury had in fact been false imprisonment, not excessive force. The jury also reported that it awarded the plaintiff compensatory damages of $10,000 and punitive damages of $15,000. The trial judge discharged the jury without objection by either counsel.

Counsel for LaPorte immediately moved for judgment notwithstanding the verdict but did not then, nor subsequently, move in the District Court for a new trial. In a written opinion, Judge Kram denied the motion for judgment n.o.v. She ruled that the evidence sufficed to permit the jury to find for plaintiff on the malicious prosecution count because the jury could have found that LaPorte lacked probable cause to arrest Rivera and acted maliciously. In upholding the verdict on the civil rights count, Judge Kram declined to rely on the theory that LaPorte used excessive force. Instead, she pointed out that the section 1983 verdict "could have been based on the arrest of plaintiff without probable cause." With respect to the counts on which the jury could not agree, Judge Kram ruled that the lack of verdicts did not provide a basis for concluding that the defendant was entitled to judgment, and she ordered a new trial with respect to these counts. Judgment awarding plaintiff $25,000 was entered, pursuant to Fed.R.Civ.P. 54(b), on the two verdicts that the jury returned. At oral argument of this appeal, counsel for Rivera represented that a new trial would not be pursued in the event of affirmance.

Discussion

Appellant renews his contention that the jury's failure to return verdicts in plaintiff's favor on the claims of assault and false arrest requires entry of judgment n.o.v. or at least a new trial. He contends that the jury "apparently" accepted his claim that he acted in self-defense. He relies on Adams v. New York City Housing Authority, 24 A.D.2d 948, 265 N.Y.S.2d 220 (1st Dep't 1965), where a new trial was ordered after a jury found for the plaintiff on a claim of malicious prosecution and for the defendant on claims of false arrest and assault. However, as Judge Kram pointed out, the jury's failure to return any verdicts on the false arrest and assault claims in this case cannot be equated with the jury's findings in favor of the defendant in Adams. We have previously observed that the only verdict that may be recognized is a verdict returned by a jury in open court. See United States v. MacQueen, 596 F.2d 76, 81 (2d Cir.1979). A jury's inability to reach a verdict cannot be taken as a finding against a plaintiff. A jury might be deadlocked at five to one in plaintiff's favor. Obviously, in such a case, the disagreement could not be used to treat the votes of the five jurors favoring the plaintiff as if they had in fact favored the defendant.

Our case would be in a different posture if the jury had been instructed that it could not return a verdict for the plaintiff on the malicious prosecution count unless it first returned a verdict in his favor on the false arrest count. But no such charge was requested or given. The case would also be different, and would come to us for review with considerably enhanced clarity, if the jury had been asked to return special verdicts under Fed.R.Civ.P. 49(a) or answer interrogatories along with its return of a general verdict under Fed.R.Civ.P. 49(b). Under either of those procedures, the Judge might have usefully structured the jury's decision-making by telling it first to consider whether the plaintiff has proven that the defendant lacked probable cause for the arrest and, only if it decided that issue in plaintiff's favor, then to proceed to the other elements of malicious ...