*1 request her may renew are not. court. discovery in district court the district
The remanded.
reversed RIVERA, Plaintiff-Appellee, M.
Luis PORTE,
Evangelio LA
Defendant-Appellant. 89-7699. Docket
No. Appeals, States Court
United Circuit.
Second 10, 1990.
Argued Jan. 16, 1990.
Decided Feb. Anolik, City, for defen- York
Irving New dant-appellant. (Levy, Harley, New York
Eugene N. Kaplan, New York Gutman, Goldberg & brief), plaintiff-appellee. City, on the NEWMAN, MESKILL Before POLLACK, Senior Judges, Circuit Judge.* NEWMAN, Judge: Circuit O. JON apparently presents appeal This nov- report of a whether issue of el complaint counts of some deadlock to demon- upon may relied a civil suit inconsistency with strate appeal other counts. turned on submitting cases of hazards reveals to a complexity minimal more than calling for either form a written without interrogato- answers special verdicts * designation. sitting by the District Pollack of Honorable Milton New District of for the Southern Court *2 Evangelio appeals LaPorte from the Rivera was tried in
ríes. state court on 6, 1989, charges of judgment of the assault and harassment. At June District that trial LaPorte claimed that Rivera had Court for the Southern District of New precipitated by shoving the altercation first Kram, (Shirley Judge) awarding York Wohl wife, who, contended, LaPorte’s LaPorte $25,000 after a found La- Luis Rivera standing was next to the two men as Porte liable to Rivera for denial of argued problem, over the traffic and then rights and for federally protected civil by punching LaPorte the face. LaPorte state law tort of acknowledged Rivera, hitting claimed but We affirm. he did so self-defense. Rivera denied touching way. in any LaPorte Rivera also Facts disputed whether LaPorte’s wife was dispute This arose from a traffic lawsuit present at the In the scene. state court into that escalated violence. was acquitted. criminal Rivera was He following entitled to find the facts. La- complaint then filed a five-count Porte is a New York corrections offi- Court, alleging a violation of his day question, cer. On the while off (1988), rights, 42 U.S.C. and § duty, driving he to a at the boat show four state law torts—malicious stopped York He New Coliseum. van tion, assault, impris- false and false waiting on 61st Street behind cars to turn onment. parking planned into lot that he too trial, At the federal neither Rivera’s parked enter. Cars were on both sides of judge, counsel nor the trial in her initial street, leaving should what have been instructions, provided pre- with a driving, two lanes for one of which was understanding theory plain- cise occupied by double-parked the line of cars argued tiff’s civil claim. Counsel parking outside the lot. Rivera was driv- generally, focusing separate without Finding a car behind LaPorte’s van. action, causes of that it was unlawful for passage along 61st Street blocked LaPorte to have arrested and assaulted van, Rivera to the on the went window judge initially Rivera. The trial character- driver’s side and asked the driver to move ized the section 1983 claim as a denial of slightly right permit his van traf- rights “by the use of excessive force pass. kept fic to LaPorte his window in making acting an arrest while up ignored request. rolled and Rivera’s A In instructing color of state law.” on the again appealed few moments later Rivera claim, however, Judge Kram identified two again and driver received no re- rights, right constitutional “not to be sponse. building With traffic him behind process arrested without due of law” and a up, request through Rivera made his right subjected “not to be to unreasonable closed van window a third time. or, words, in other excessive while point, At this LaPorte came out of the being charging arrested.” In the elements van, pushed ground, jumped Rivera to the action, of the section 1983cause of the trial him, him, kicked and struck him on the judge clarify did not the confusion but sim- eye object. forehead with blunt La- ply stated that Rivera must show that La- officer, yelled, police Porte then “I’m a him Porte’s acts “caused to suffer the loss you’re under arrest.” LaPorte handcuffed right.” of a federal A further instruction bystander Rivera and asked a to call the force,” explained though “excessive it was arrived, police. police When a car LaPorte explanation not made clear whether this placed car, Rivera in the rear seat of the claim, related to the common law assault got him, in the rear seat claim, the civil or both. With re- by police police torts, driven officer to a station. spect to the state law Kram times, With LaPorte attendance at all fully explained the elements of each tort. questioned, Rivera hospital, particular, taken to a In she instructed that the booking, finally taken to central could find for the on the malicious night. plaintiff proved leased late that same claim if the used excessive force. theory that LaPorte not have LaPorte both Instead, out that section maliciously. pointed she he and that have been on the verdict “could based given been a ver- jury had Since probable cause.” plaintiff without arrest of their surprising that form, it is dict *3 counts which the respect to the on With asked, “What are judge first note agree, Judge ruled jury could not Kram LaPorte against Mr. charges specific the provide a the lack of verdicts not that in and bring a decision must which we for concluding that the defendant for basis After col- counter-charges are?” the what judgment, and she ordered entitled to was answered counsel, Judge Kram loquy with respect to counts. new trial with these a following claims made the Rivera had that $25,000 awarding plaintiff was Judgment “One, La- defendant that against LaPorte: 54(b), entered, on to Fed.R.Civ.P. pursuant assault, for state law Porte liable At jury that the two verdicts returned. the and mali- imprisonment arrest, false false appeal, for argument counsel oral Two, LaPorte that Mr. prosecution. cious trial that a new would represented the Rivera rights under plaintiffs violated the event of pursued in affirmance. by the use not be States Constitution United making while an arrest force in excessive also She of state law.”
acting under color
Discussion
no counterclaims.
there were
that
explained
his contention
renews
deliberations,
asked to
jury
the
Later
in
to return verdicts
jury’s
the
that
failure
making,
Rivera
the claims
have reread
the claims of assault
favor on
plaintiff’s
claim.
than the
other
judgment
requires entry of
false arrest
and
verdict
ultimately reported its
jury
contends
a new trial. He
or at least
n.o.v.
as follows:
accepted his
“apparently”
jury
the
that
guilty
We,
find Mr. LaPorte
jury,
the
in
He
self-defense.
that he acted
following counts:
the
on
York
Hous
v. New
relies on Adams
N.Y.
24 A.D.2d
Authority,
1. Malicious
1965),
trial
(1st
a new
where
rights.
Dep’t
of civil
2. Violation
S.2d
for the
found
ordered after
the
unanimously agree on
cannot
We
prosecution
malicious
plaintiff on claim
following counts:
of false
on claims
for the defendant
and
force.
Assault,
excessive
false
However,
as
and assault.
arrest
torts sub-
state
four
law
The last of the
re
out,
jury’s
to
the
failure
pointed
Kram
in
been false
had
fact
mitted
the false arrest
on
any verdicts
turn
excessive force.
imprisonment,
equat
case cannot be
in this
claims
assault
it
awarded
reported
findings in
favor
jury’s
ed
$10,000
damages compensatory
plaintiff
previously
haveWe
in Adams.
defendant
$15,000. The trial
damages of
punitive
may be
only
verdict
observed
objection
jury without
discharged the
judge
by a
returned
a verdict
recognized is
by either counsel.
Mac-
States
open court.
United
See
immediately moved
for LaPorte
Counsel
Cir.1979).
(2d
A
Queen, 596 F.2d
notwithstanding the verdict
judgment
for
be
cannot
inability
reach a verdict
move in
then,
subsequently,
nor
but did
A
plaintiff.
finding against
as a
taken
In a
trial.
for a new
the District Court
to one
at five
might be deadlocked
Judge Kram denied
opinion,
written
Obviously,
such
favor.
plaintiff's
ruled that
She
n.o.v.
for
motion
to treat
not be used
disagreement could
permit
evidence sufficed
favoring the
jurors
five
votes
on the malicious
plaintiff
find
in fact favored
they had
as if
jury could
tion count because
defendant.
cause
lacked
that LaPorte
found
posture
in a different
be
case would
Our
maliciously. In
to arrest Rivera
it could
instructed that
jury had been
if
the civil
the verdict
upholding
return
verdict
rely on
count,
declined to
Judge Kram
thought
jurors, they
count
it first
sufficient
unless
de-
pursue
topic
in his favor on the false
returned a verdict
clined to
charge
But no such
arrest count.
a second time in connection with the false
requested
given.
The case would also
count,
having
arrest
once
resolved it in
different, and would come to us for
plaintiffs
favor
connection with the ma-
considerably
clarity,
review with
enhanced
licious
count.
special
asked to return
if the
had been
jurors
Even in circumstances where
an-
49(a)
under Fed.R.Civ.P.
or answer
arguably
nounce verdicts that are
incon-
interrogatories along with its return of a
sistent,
obliged
courts are
to harmonize
49(b).
general
under Fed.R.Civ.P.
verdict
findings
interpreta-
their
reasonable
*4
procedures,
those
Under either of
the
support
tion that finds
in the evidence.
Judge might
usefully
have
structured the
Miller,
Wright
9 C.
& A.
See
Federal Prac-
jury’s decision-making by telling it first to
(1971).
tice and Procedure
That
§
plaintiff
proven
the
has
consider whether
principle applies
greater
with even
force to
probable
defendant lacked
verdicts,
require acceptance
fully sup-
of
and, only if
that
for the arrest
it decided
ported by
evidence,
the
that are claimed to
favor,
plaintiffs
proceed
in
issue
then to
to
impaired only by speculative
be
reasons
the other elements of malicious
why
jurors
the
elected not to return ver-
tion. As this case was submitted to the
dicts on other counts.
however,
jury,
disagreement
the
on some
Appellant’s contentions fare no
counts cannot be used to create an incon-
better
count,
sistency
respect
rights
the
with
verdicts that were re-
civil
may
though
part company
turned.
rea-
Jurors
have innumerable
here we
with the
returning
Judge’s
sons for not
verdicts on some
sustaining
rationale for
counts,
view,
including
entirely
their
under-
the verdict.
Kram
up
declined to
case,
by returning
in
standable
this
that
hold this verdict on the basis of use of
plaintiffs
verdicts in
favor on two counts
force, preferring
excessive
assume
awarding damages,
they
had suffi-
jury
found a constitutional violation of
ciently discharged
fact-finding respon-
their
right
proba
not to be arrested without
permit
sibilities to
the District Court to
difficulty
ap
ble cause. The
with that
view,
judgment.
enter
If that was their
proach
Judge explicitly
is that the District
they
correct.
were
jury
rights
instructed the
that Rivera’s civil
claim was “the excessive use of force in
puts
by
point
artfully
more
making
repeated
an arrest” and
this state
finding
contending
plaintiffs
that a
in
fa-
point
ment of the claim at the critical
dur
vor on the issue of whether LaPorte lacked
ing
jury
when the
asked to
deliberations
be
probable cause for the arrest was essential
“specific” charges.
pre
told the
We have
plaintiffs
a
in
the mali-
to verdict
favor on
viously pointed
“helpful”
out that it is
in
cious
count and that the lack of
rights
jury “separate
trials to ask the
plaintiffs
a
verdict on the false arrest
questions whether the officer had denied
count,
disagreement
whether because of
or
right
any
a constitutional
of
reason,
for
other
demonstrates that
(each
respects
the ...
claimed
of which
did not find an essential element of
[jury
could have been listed on the
prosecution.
verdict]
But
tort of
appropriate marking by
form for
returning
plaintiffs
verdict on malicious
Haverstraw,
jury).” Vippolis Village
must have found
of
Cir.1985),
(2d
denied,
768 F.2d
cert.
plaintiffs
on the
lack
favor
issue of
916, 107
tion, finding L.Ed.2d 474 U.S. 106 S.Ct. 88 and of vio- remand, (1985), 33 to on 796 F.2d rights, namely, adhered lation of civil (10th Cir.1986); Meshriy, 1307 Traver v. cause, had found the absence of 934, (9th Cir.1980); Stengel 627 F.2d 938 reported by having as not Belcher, 438, (6th Cir.1975), 441 522 F.2d (whether by disagreement, been found 910, 1505, 425 U.S. 96 S.Ct. granted, cert. known). fusal or other failure is not (1976), dismissed, 47 L.Ed.2d cert. jury reported unanimously that it “cannot L.Ed.2d 97 S.Ct. U.S. agree following ... on counts [sic]: (1976). deny LaPorte does not that as a Assault, arrest, false excessive force.” “peace he was a officer” correction officer predicate reported sup- There nowas law, under New York N.Y.Crim.Proc.Law port finding of “violation of civil 1981), 2.10(25)(McKinney and was autho § rights.” “thirty-fifth” In paragraph geo make an arrest within his rized to complaint, plaintiff charged in one sum- committed in graphical area for an offense mary sentence that above stated acts “[t]he 140.25(3)(a)(McKinney presence, id. § assault, imprisonment, false arrest and 1981). carrying handcuffs issued He was and malicious were undertaken City Department of by the New York Cor Laporte Defendants and Colon under “off-duty” rections and an revolver. He color state law....” (or, police identified himself as a officer according testimony, peace some as a paragraph “thirty-ninth” In of the com- officer) making he used the plaint, asserted above “[t]he car, handcuffs, placed police he Rivera in a Laporte described acts of Defendants accompanied throughout him and he the Colon, committed under color state law *6 hospital, evening precinct, to the local the authority and under color of their as Cor- Though dispute booking. and central the City rection Officers of Defendant of New private, precipitated the arrest was the York, implicit and with the or tacit authori- response, including the arrest and the use zation, approval, encouragement or of the force, unquestionably ac of excessive was Department Correction and Defendant color of law. tion under wanton, unprovoked, of New were unlawful_” However, rejected appel- as mentioned We have considered and be- low, lacking. remaining lant’s contentions. evidence thereof was The of the District Court is judge gave rolled-up The district affirmed. charge covering all the asserted conduct as though it was all one tort and did not POLLACK, MILTON Senior District request require separate or The verdicts. Judge: (Dissenting). concerning indicated its confusion its respectfully I dissent. specific task. It the asked “What are charges?”. Judge repeated in The sub- majority opinion The characterizes the complaint stance the the various claims of procedure impaired in the district court as but added “excessive force” to the civil respects affecting jury’s in the con- critical rights allegations expressed which was However, there sideration of the case. are complaint. in in words the The re- accept many too defects to be cured to the again turned and the same routine followed serving justice. the of result as ends except this time force” “excessive was not my inadequacy opinion, In the and the Judge. reiterated the The errone- jury’s responses inconsistency of the can- ously referred to the matters in their re- explained away overlooked or suc- “counts,” separate they port as which were cessfully. single The was tried at a case not. single complaint asserting trial on a count inability, The declared failure or refusal rolled-up liability of the defendant for believe) (whichever to find complaint in the one chooses to various reasons scattered separate probable per- into lack of cause for an arrest but not differentiated allegations predicate “guilty” “counts.” The for a meated and undermined all however, difficulty, is that The or of law.” charge of malicious The complaint. the ground in a civil in would not limbo a lawful arrest sustained cannot be prosecution claim, finding failure of that it announced and there is of the no face cause for an probable lack of to find lawful and it cannot be other than was prerequisite More- presumed to have been unlawful. prosecution guilty of malicious sponse of over, it was jury expressly announced rights.1 Dur- guilty violation (or unwilling) to find that “exces- unable deliberations, clearly re- ing its used; no other basis force” had been sive mali- “Please define the Court quested or is to be found was submitted Judge then reread prosecution.” cious in the evidence. charge that deal with portions minimum, of a At a albeit absence in- trial, request guilty a new formal therein that: structed irreconcilably are inconsistent recover, must In order to report, re jury’s announced failure at the time prove that find, probable lack inability or fusal initiated, not have defendant for defendant’s acts. It would be cause plaintiff guilty cause to believe faulty travesty justice to allow the degree and third harass- of assault reported jury re structure which initiating and that ment stands; appellate part it is sponse maliciously. ... the defendant tion or duty oversight not to overlook court’s acquitted after plaintiff was fact that plain error. excuse United States such that defendant trial (2d Cir.1958)(“Of Vater, F.2d at the time probable cause lacked course, justice, where it is the interest initiated, question on appeal even point will consider is not wheth- the issue through or inad though negligence counsel fact, inno- was, guilty or er to claim has failed below vertence fact, was, in mistaken or defendant cent also, Hor strongest point.”); see client’s as correct, on the facts whether but 552, 557, 61 Helvering, 312 U.S. mel v. to the defen- reasonably appeared *7 (1941)(“Rules 719, 721, L.Ed. 1037 85 S.Ct. person reasonably prudent would dant procedure are devised practice and of guilty. plaintiff have believed not to defeat justice, of ends promote the cannot be sustained The civil undeviating judicially rigid and them. A charge was insuffi- The Court’s limbo. courts of practice under which declared indeed, insufficient, cient, and there was under all cir invariably and would review as a founda- of the essential none ques all decline to consider cumstances parking The double for such claim. tion specifi previously been had not tions which personal awas leading to the altercation harmony with out of urged be cally would conceiva- completely unrelated gripe Birch, 529 F.2d v. policy.”); Ricard in a officer a corrections functions of ble Cir.1975) of (4th (“Ordinarily, 214, 216 locality. Carry- matter, in that parking lot questions that course, pass on do not duty does neces- an off revolver of by the presented to considered were not state law status impose color of sarily proce orderly rules of court, but district majority inti- Although the defendant. the rules of require sacrifice dure do not private, dispute mates Founda justice.”); Franki fundamental use of excessive arrest and the say “the Assoc., Inc., 513 & Alger-Rau v. col- tion Co. action under unquestionably Civil, Jury 78, 2 York Pattern See, New Instructions — 60 N.Y.2d New Colon v. 1. (1968): 453, 1248, 82, at 795 455 PJI N.Y.S.2d 3:50 N.E.2d to recover malicious (1983): [for In order prove at the time tion], must an action elements The initiated, defendant prosecution was (1) proceed- initiation of prosecution are guilty to believe probable cause favorably plaintiff, (2) ing, its termination initiating charged] cause, (4) and crime [the (3) and malice lack maliciously. prosecution, defendant omitted]; [citations (3d Cir.1975) (Issues F.2d ordinarily
raised are not heard on below only
appeal, this rule is a rule of “[b]ut
practice may relaxed whenever the warrants.”). justice
public interest or so
I would order a new trial of this case on trial ordered
all issues. limited new judge
the district was insufficient relief. BUTLER, Plaintiff-Appellant,
Jake CASTRO, 1607;
Luis Det. # Arthur J.
Christiani, #2942; Moy, #557; F. Jack County
All of the Bronx District Attor
ney’s Squad; County The Bronx Dis Office; Attorney’s
trict Diallo I. Ben
net, #65; Precinct; Det. of the 44th Precinct, P.D.;
The 44th of NYC Clerk, NYCPD,
Property of the NYC Dept., City P.D.,
Police New York
NYC, NYC, Jointly, Severally,
Individually, Respectively, Defendants-
Appellees.
No. Docket 89-2067. Appeals,
United States Court
Second Circuit.
Argued Dec. 1989.
Decided Feb. 1990. (Schulte Zabel,
Daniel Kramer J. Roth & counsel), City, plaintiff-ap- New York pellant. (Elizabeth Natrella, Taylor
Patrick L. S. Zimroth, Corp. Peter L. Counsel of counsel), City, of New New York defendants-appellees. LUMBARD, Before NEWMAN and WINTER, Judges. Circuit