Tardif v. City of N.Y.

• Decision Date: 18 March 2021
• Docket Number: No. 19-1360,August Term 2019,19-1360
• Citation: Tardif v. City of N.Y., 991 F.3d 394 (2nd Cir. 2021)
• Parties: Mary M. TARDIF, Plaintiff-Appellant, v. CITY OF NEW YORK, Sergeant Thomas McManus, in his individual and official capacity, Defendants-Appellees, New York City Police Department, Deputy Commissioner John O'Connell, Deputy Inspector Daniel Mulligan, Deputy Inspector Edward Winski, Police Officer James McNamara, Police Officer Alena Aminova, Police Officer Kendal Creer, Police Officer Marsha Rumble, Police Officer Felix Schmidt, John Doe, NYPD Officers #1-13, John Doe, NYPD Officers #1-11, John Doe, NYPD Officers #1-9, John Doe, NYPD Officer #11, Defendants.
• Court: U.S. Court of Appeals — Second Circuit

991 F.3d 394

Mary M. TARDIF, Plaintiff-Appellant,

v.CITY OF NEW YORK, Sergeant Thomas McManus, in his individual and official capacity, Defendants-Appellees,New York City Police Department, DeputyCommissionerJohn O'Connell, DeputyInspector Daniel Mulligan, DeputyInspector Edward Winski, Police OfficerJames McNamara, Police OfficerAlena Aminova, Police OfficerKendal Creer, Police OfficerMarsha Rumble, Police OfficerFelix Schmidt, John Doe, NYPD Officers #1-13, John Doe, NYPD Officers #1-11, John Doe, NYPD Officers #1-9, John Doe, NYPDOfficer #11, Defendants.

No. 19-1360

August Term 2019

United States Court of Appeals, Second Circuit.

Argued: April 13, 2020

Decided: March 18, 2021

Stefan H. Krieger(Gabriella MP.Klein, Lindsay A. Wasserman, James P. Stevens, Law Students, on the brief), Hofstra Law Clinic, Maurice A. Deane School of Law at Hofstra University, Hempstead, NY; Gideon Orion Oliver, New York, NY, on the brief, for Plaintiff-Appellant.

Jonathan A. Popolow, Assistant CorporationCounsel(Richard P. Dearing, Aaron M. Bloom, on the brief), for James E. Johnson, CorporationCounsel for the City of New York, New York, NY, for Defendants-Appellees.

Before: Livingston, Chief Judge, Parker and Bianco, Circuit Judges.

Joseph F. Bianco, Circuit Judge:

Following confrontations with New York City police officers during Occupy Wall Street demonstrations at Union Square Park in the spring of 2012, Mary M. Tardif brought suit against the City of New York("the City"), the New York City Police Department("NYPD"), and various officers and officials.As relevant on appeal, Tardif alleged that (1) the City violated the Americans With Disabilities Act of 1990("ADA"), 42 U.S.C. § 12101 et seq. , in failing to reasonably accommodate her epilepsy by timely administering medication during her pre-arraignment detention following her arrest, and that (2)Sergeant Giovanni Mattera("Sergeant Mattera") and Sergeant Thomas McManus("Sergeant McManus") committed assault and battery under New York law when, during separate demonstrations, each officer used force against Tardif.The United States District Court for the Southern District of New York(Wood, J. ) granted summary judgment to the City on Tardif's ADA claim and, following a six-day trial, a jury returned a verdict in favor of the City and the individual officers on all the remaining claims.

We conclude that the district court properly granted summary judgment on the ADA claim because there was no evidence demonstrating the City delayed administering medication "by reason of" Tardif's disability, as required under the statute.With respect to the state law assault and battery claims, we hold that the district court correctly determined, contrary to Tardif's contention, that a justification instruction was warranted on those claims because New York law permits a police officer, even in a non-arrest situation, to use an objectively reasonable degree of force in the performance of a public duty, including crowd control.However, we conclude that the district court, in providing that justification charge, erroneously instructed the jury that it could consider an officer's subjective intent, which is contrary to New York's objective reasonableness inquiry.We further conclude that, although the error was prejudicial as it relates to the assault and battery claims involving Sergeant Mattera and warrants a new trial, the error was harmless as to the claims against Sergeant McManus given that his subjective good faith was never raised, or even at issue, during the trial.Accordingly, we affirm the judgment in part, vacate in part, and remand the case for further proceedings consistent with this opinion.

BACKGROUND

I.The March 17, 2012 Arrest and Epileptic Seizure¹

In September 2011, protestors took to the streets of New York City's Financial District in a demonstration against rising economic inequality in America.Those protesting as part of Occupy Wall Street, as the movement became known, encamped in Zuccotti Park in Lower Manhattan until NYPD officers cleared the site in November 2011.On March 17, 2012, protestors returned to Zuccotti Park to commemorate the six-month anniversary of the Occupy Wall Street movement.In the early afternoon, Tardif and approximately thirty other protestors were participating in call-and-response chants on the north sidewalk of Zuccotti Park along Liberty Street.Speaking over a bullhorn, an NYPD official ordered the crowd to clear the sidewalk because it was blocking pedestrian traffic.In response, Tardif and other protestors did not move but began jumping, yelling, and dancing in place.After additional orders to clear the sidewalk were ignored, police officers arrested multiple protestors, including Tardif.²

Following her arrest, Tardif was transported to a local precinct at around 3:30 p.m., where she was searched, processed, and placed in a holding cell.During her processing, Tardif informed Officer Victor Lara("Officer Lara") that she had epilepsy and that her medication (Lamictal ) was among the over 100 medical supplies in her backpack, which she carried as a volunteer "street medic" during the protests.App'xat 451.Officer Lara told Tardif that all of her personal items would need to be inventoried unless Tardif had someone pick up her belongings.Tardif agreed to have a friend collect her possessions and signed a form authorizing her friend to collect "all of her belongings,"id. at 378, but informed Officer Lara that her friend was only authorized to collect her backpack and that her epilepsy medication should remain with her at the precinct.Her epilepsy medication was located in a small bag inside her backpack.At around 8:30 p.m., Tardif's friend arrived at the precinct to collect her belongings.

After learning of Tardif's medical condition during processing, Officer Lara informed Tardif that she would be taken to the 20th Precinct, a special medical precinct where her medicine could be administered.Following NYPD procedures, Officer Lara filled out a medical treatment form used for detainees with medical needs, noting that Tardif had self-administered her epilepsy medication prior to her arrest.Officer Lara also assured Tardif that her medication would follow her to the 20th Precinct.

Tardif, who had a history of epileptic seizures, maintained a schedule where she took Lamictal at 10:00 a.m. and 10:00 p.m. daily.Tardif asserts that, at around 5:00 p.m., she told an unidentified officer that she needed to take her medication at 10:00 p.m., who responded, "Yeah, sure."Id . at 456.Tardif further alleges that, from 7:00 p.m. to 10:00 p.m., she repeatedly informed two unidentified male officers that she needed to take her medication, but they did not respond to her repeated requests for the medication.

At around 11:00 p.m., Tardif and other detainees were transferred to Manhattan Central Booking where an emergency medical technician ("EMT") determined whether the detainees had medical conditions requiring special attention.Tardif told an EMT about her epileptic condition, which, under NYPD policy, required her to be medically cleared by a health professional before arraignment.

Then, at around 1:30 a.m., on what was then March 18, 2012, Officer Lara transported Tardif to Bellevue Hospital for medical clearance due to her history of epileptic seizures and use of epilepsy medication.After Officer Lara informed medical staff that Tardif required epilepsy medication, Tardif's attending physician provided her with a generic version of Lamictal (although her prescription was for Lamictal XR) and documented in her medical records that Tardif reported "no physical or medical complaints."Id . at 142.After being cleared medically, Tardif was ultimately transported by Officer Lara to the 20th Precinct around 4:30 a.m.

Officer Cystallee Otero("Officer Otero"), the cell attendant that morning, was assigned to monitor Tardif and five other female detainees with medical needs.At around 7:00 a.m., after Officer Otero introduced herself, Tardif informed Officer Otero that she had epilepsy and needed her medication.Officer Otero responded that "she would speak to a supervisor to ensure that [Tardif] got [her] medication."Id . at 460.Officer Otero left and returned, telling Tardif that "it generally takes about an hour to get a prisoner medication" and that "they would try to get [Tardif her] medication soon."Id .According to Tardif, Officer Otero checked on her "regularly" for the next three to four hours and "expressed her concern" for Tardif's epileptic condition.Id .During this time, Officer Otero also "repeatedly told [Tardif] that she was trying to obtain attention for [Tardif], but she was not getting a response from her superiors."Id .

In the early afternoon, Officer Otero observed Tardif begin to shake, lose consciousness, and collapse to the floor of her cell.Officer Otero retrieved the keys to the cell, turned Tardif on her side, and held her until she regained consciousness.Shortly after being dispatched, EMTs arrived at around 2:00 p.m. and transported Tardif to Bellevue Hospital by 2:15 p.m., where she received a dose of Lamictal and was again medically cleared for arraignment.Tardif was transferred back to the 20th Precinct, arraigned that evening, and released on her own recognizance.

II.The Two Police Confrontations on March 21, 2012

A.The Early Morning Incident

At trial, the parties testified regarding two confrontations between Tardif and NYPD officers that occurred during Occupy Wall Street demonstrations in the early morning and afternoon of March 21, 2012.The previous evening, around eighty to one-hundred protestors encamped inside Union Square Park, and about seventy police officers in the area monitored the demonstration.Around midnight, a line of police officers moved southward through the park ordering, and sometimes physically moving, protestors out.After clearing the area, officers placed metal...