Zellner v. Summerlin, 05-6309-cv.

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Citation494 F.3d 344
Docket NumberNo. 05-6309-cv.,05-6309-cv.
PartiesJohn Robert ZELLNER, Plaintiff-Appellant, v. Robert G. SUMMERLIN, Trooper, and Major Weber, Defendants-Appellees, State of New York, New York State Police Department, and John Does 1-10, Defendants.
Decision Date20 July 2007

Scott A. Korenbaum, New York, New York (Frederick K. Brewington, Hempstead, New York, on the brief), for Plaintiff-Appellant.

Richard Dearing, Assistant Solicitor General, New York, New York (Eliot Spitzer, Attorney General of the State of New York, Michael S. Belohlavek, Senior Counsel, Mariya S. Treisman, Assistant Solicitor General, Charleen Hsuan, Legal Intern, New York, New York, on the brief), for Defendants-Appellees.

Before: KEARSE, CABRANES, and KATZMANN, Circuit Judges.

KEARSE, Circuit Judge:

Plaintiff John Robert Zellner appeals from a final judgment of the United States District Court for the Eastern District of New York, Sandra L. Townes, Judge, dismissing his claims, brought under 42 U.S.C. § 1983, against defendants Robert G. Summerlin and Thomas Weber (collectively "defendants"), as members of the New York State Police ("State Police"), for false arrest, malicious prosecution, and use of excessive force during arrest. Following jury verdicts awarding Zellner a total of $85,500 in compensatory and punitive damages on the false arrest and malicious prosecution claims, the district court granted defendants' motion pursuant to Fed.R.Civ.P. 50(b) for judgment as a matter of law dismissing those claims on the ground of qualified immunity. On appeal, Zellner contends principally that, in granting judgment as a matter of law, the district court impermissibly decided questions of fact. He also contends that the jury's verdict in favor of defendants on his excessive force claim should have been set aside, and a new trial granted on that claim. Because we conclude that, in granting judgment as a matter of law, the district court erred by making factual findings adversely to Zellner, rather than viewing the record in the light most favorable to him, we reverse so much of the judgment as dismissed Zellner's false arrest and malicious prosecution claims; we remand for entry of an amended judgment reinstating the jury's awards of compensatory and punitive damages on those claims. We affirm so much of the judgment as dismissed the excessive force claim.


The present action arises out of a February 25, 2000 demonstration protesting the construction of a new housing development called Parrish Pond, across a highway from the Shinnecock Indian Reservation ("Shinnecock Reservation" or "Reservation") in the Town of Southampton, New York (the "Town"). Photographs introduced at trial as plaintiff's exhibits ("PX") showed demonstrators holding placards stating, e.g., "Sacred Land," "Indian Land Forever," and "Stop the Desecration."

Zellner, a sixty-odd-year-old adjunct professor of American history at Southampton College, served as co-chair of the Southampton Anti-Bias Task Force, a committee of citizens appointed by the Town to investigate complaints of bias and discrimination. He was called to the site of the demonstration by Benjamin Haile, a Shinnecock Reservation resident.

The scene of the demonstration was a field area surrounding a grass-and-dirt driveway leading from a paved two-way public road to the Parrish Pond development construction site. Troopers from the State Police were present; Weber, a major, was in charge. During the demonstration, a construction-related truck attempted to enter the driveway and was temporarily blocked by some of the protestors. Zellner was arrested and charged with disorderly conduct in violation of N.Y. Penal Law ("Penal Law") § 240.20(5) (McKinney 2000), and resisting arrest, in violation of N.Y. Penal Law § 205.30 (McKinney 1999). More than a year later, after over a dozen court appearances and adjournments, the charges against him were dismissed for lack of prosecution.

A. The Present Action

Zellner brought the present § 1983 action in 2002, alleging, to the extent pertinent here, claims of false arrest, malicious prosecution, and use of excessive force during arrest. A trial was held on those claims against Major Weber and Trooper Summerlin (other claims and defendants having been dismissed earlier). The trial produced sharply divergent versions of the events leading to Zellner's arrest. The witnesses included Zellner and several residents of the Shinnecock Reservation who supported his version, and Major Weber, Trooper Summerlin, and several other troopers who supported key elements of defendants' version. In addition, a videotape, produced by a camera that had been mounted on one of the State Police vehicles, was played.

1. Testimony by Zellner and Reverend Davis

Early on the morning of February 25, 2000, Zellner received a call at home from Haile, asking him to "look at a situation on St. Andrew's Road, just off the reservation." (Trial Transcript ("Tr.") at 340.) Zellner responded that he was involved in a project; he suggested that Haile instead call the other co-chair of the Anti-Bias Task Force, but that if Haile were unable to find someone else to help he should call Zellner again. Eventually Haile called Zellner back, stating "we need you." (Tr. 341.)

Zellner arrived at the demonstration site on St. Andrew's Road sometime after noon and was greeted by Reverend Holly Davis, a pastor at two area Presbyterian churches, who introduced him to some of the protestors. For about a half-hour, Zellner received information about the situation from some of the Shinnecock elders and from Reverend Davis, learning that the Shinnecocks had sought and been granted a temporary injunction against the construction work and that a written restraining order was on the way. Reverend Davis had been engaged in discussions with Major Weber most of the day (see id. at 47-48, 49; see also id. at 94) (testimony of Weber: "The Reverend Davis was telling me all afternoon that the paperwork was being signed, that it was coming. I wanted the injunction order to cease work to arrive so I could calm things down."). After Zellner arrived, Davis, accompanied by a few others including a 79-year-old woman who was a Shinnecock elder, introduced Zellner to Major Weber. (See id. at 49, 344.)

Zellner and Weber shook hands, and Zellner identified himself as co-chair of the Anti-Bias Task Force. Zellner described his ensuing conversation with Major Weber—and the arrest—as follows:

I explained that I had been called and asked to come down and talk to the police and—in an effort to keep things calm.

Q. And, sir, did he respond to you at that point?

A. He did. He said, what—he asked me what business was it of mine, and I said—I reiterated I was co-chair of the Anti-Bias Task Force and that I was asked by the community to make sure that he knew that there was a restraining order against the work going on in that area and that the—that I understood that the restraining order was on the way and would they be able to wait before they took any action until the restraining order got there.

Q. At that point, sir, what was your demeanor? Can you describe that for the jury.

A. My demeanor was very respectful. It was quiet because everybody there was very solemn and respectful and quiet.

Q. And, sir, what next happened, please.

A. Major Weber indicated that he knew that there was a restraining order and he said it's not here yet, and I said, I understand it's not here, but I just wanted to make sure that you know it's on the way, and what we're concerned about is that there's an evenhanded treatment of everyone in this situation.

Q. Did he respond to you at that point?

A. Well, he didn't, and I said, [c]ould you assure me that there will be evenhanded treatment? And he said, with some excitement, that we had to keep the road open, and I had observed that the road was—the traffic was moving back and forth on the road, and I said, [i]t seems that everything is reasonable at this moment.

Q. Then what happened?

A. With that — while I was literally speaking to the major, just a few seconds after we had actually shaken hands, I was grabbed from behind and pushed down and pulled backwards out of in front of the major.

Q. And at that time, sir, did you [have] anything in your hands?

A. I had—still had a coffee cup. I think I had put it down at some point, but I had picked it back up. I had a coffee cup in my hand, as I recall. That's the only thing I had in my hand.

Q. And, sir, at the point that you were pulled, as you indicated, what next happened?

A. I was very roughly pulled out and my arm was placed behind my back and my arm was twisted extremely painfully and I looked over my right shoulder and I said, "You're breaking my arm. Please don't break my arm."

. . . .

Q. Now, sir, at that point that you said that, was there any response to your statement?

A. Yes.

Q. What was the response?

A. The response was a much more severe twisting of my arm and the words, "Resisting are you?" And I said, "No. You're breaking my arm, please don't break my arm."

(Tr. 344-46 (emphasis added); see also id. at 380 ("I was face-to-face with Major Weber and I was grabbed from behind, pulled backwards and down.").)

Zellner testified that his right arm was held at the elbow while his wrist was being "turned in the way that [his] arm didn't turn," and he could feel the cartilage or tendons cracking. (Id. at 349.) He stated that he was also kicked or kneed in the jaw and that his left knee was either kicked or stepped on. (See id. at 350.) Zellner later learned that one of the troopers who had grabbed him from behind was Summerlin. (See id. at 346.)

Zellner testified that before being grabbed, he "was not asked to do anything" and "was not ordered to do anything." (Id. at 453; see also id. at 381.) He "was simply grabbed from behind," without any idea of why or by whom, and...

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