ROBERT & LINDA PROVOST, PLAINTIFFS-APPELLANTS-CROSS-APPELLEES, v. THE CITY OF NEWBURGH, ULYSSES OTERO AND PATRICK SORRENTINO, DEFENDANTS-APPELLEES, JOHN ROPER, DEFENDANT-APPELLEE-CROSS-APPELLANT
Docket No. 00-7790, 00-7791
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August 17, 2001
262 F.3d 146
Before: Newman, Leval, and Sack, Circuit Judges.
Argued: January 19, 2001. Judge Newman dissents as to Defendant Roper.
Robert N. Isseks, Middletown, NY (Steven M. Melley, of counsel), for Plaintiffs-Appellants-Cross-Appellees.
Monte J. Rosenstein, Middletown, Ny, for Defendants-Appellees and Defendant-Appellee-Cross-Appellant.
SACK, Circuit Judge:
Plaintiff Robert Provost1 appeals from a May 19, 2000 judgment of the United States District Court for the Southern District of New York (George A. Yanthis, Magistrate Judge) granting partial judgment as a matter of law to the defendants following a trial and a jury verdict for the plaintiff. One of the defendants in that trial, John Roper, cross-appeals the portion of the same judgment that awarded the plaintiff nominal and punitive damages against him in accordance with the verdict.
The underlying claims stemmed from an argument that occurred on February 24, 1995 at the Newburgh, New York police station between Provost and a receptionist, after which Provost was arrested and incarcerated for about two and a half hours. Provost filed suit under
Robert Provost was at all times relevant to this appeal the owner and operator of a half-way house for handicapped and mentally ill adults, most of them veterans. When he awoke on the morning of February 24, 1995, he learned that one such veteran-resident, Bob Stratton, had turned up at the Newburgh police station after an unexplained three-day absence.
Provost drove to Newburgh to retrieve Stratton and arrived at the police station at around nine in the morning. He then walked up to a bullet-proof reception window and asked to see Stratton. Dave Fisher, a parking officer seated behind the window, told Provost that he would be attended to “in a little while.”3 Provost grew impatient; at intervals of about ten or fifteen minutes for the next hour, he returned to the window and asked that Fisher produce Stratton. On what would prove to be his last visit to the reception window, Provost grew angry and told Fisher, in Provost‘s words, “Look. I gotta get out of here. Get on that phone. Call somebody in the back. Get somebody out here to help me.” To the officers on Fisher‘s side of the glass, Provost‘s comments sounded less polite, conveying “something to the effect of ‘what do you mean you don‘t know where he is?‘,” “‘I don‘t have time for this bullshit,‘” and “‘I can‘t sit around on my fat ass all day like you.‘” Each of these officers testified that Provost was “shouting very loudly,” “raising his voice,” or “yelling and screaming” at Fisher. Provost conceded at trial that during the dispute he “yelled through the window,” “hollered at” Fisher, and generally became “noisy.” Without responding to Provost‘s final entreaty, Fisher picked up the phone next to him and made a brief call.
In the same room as Fisher, and behind the glass separating Fisher and Provost, were two police officers, John Roper and his supervisor Lieutenant Patrick Sorrentino. They heard Provost raising his voice to Fisher -- though Roper and a fellow officer testified that one was required to do so in order to be heard through the thick glass -- and Sorrentino told Roper to “go and handle the problem.” Roper invited Provost into the hallway adjoining the glassed-in room and inquired as to the difficulty. Provost responded that he was frustrated by Fisher‘s inattention and anxious to retrieve Stratton. Roper testified that once he realized Provost was “not going to be calmed down,” he decided to place Provost under arrest. During the arrest, Sorrentino and a third officer, Ulysses Otero, were apparently standing behind Provost. They witnessed the arrest, though Sorrentino testified at trial that he did not remember whether he saw Roper placing handcuffs on Provost.
Provost was escorted -- roughly, he claims -- down the hall and was then handcuffed to a bench, where the officers “scream[ed], sw[ore], [and] holler[ed]” at him. He was charged with disorderly conduct in violation of
[D]efendant did intentionally use abusive and obscene language in a public place - the police department lobby, saying to civilian police department employee Dave Fisher “I don‘t have time for your bullshit” and “I can‘t jerk around all day like you.” Defendant did engage in this behavior in view of several civilian persons in the lobby.
Provost was detained for about two and a half hours. The charge was ultimately dismissed pursuant to
Provost filed suit under
The case went to trial on February 14, 2000 before Magistrate Judge Yanthis.5 Provost takes exception to three aspects of the trial. First, in support of his effort to obtain damages for emotional distress, Provost wished to testify about the instances of police brutality toward other detainees that he claimed to have witnessed during his incarceration. The defendants’ counsel objected to this testimony and the court apparently issued its ruling excluding it at a sidebar that took place off the record. Provost was thus prevented from so testifying, but his counsel later noted his objection for the record, claiming that such evidence “would have been relevant... on the issue of emotional distress, post-traumatic stress, suffered by the plaintiff.”
Second, Provost objected to the following portion of the court‘s instructions on punitive damages: The extent to which a particular sum of money will adequately punish the defendant and the extent to which a particular sum will adequately deter or prevent future misconduct may depend upon the financial resources of the defendant against which damages are awarded. Therefore, if you find that punitive damages should be awarded against the defendant, you may consider the financial resources of the defendant in fixing the amount of such damages.
Provost unsuccessfully argued that this language was improper because the defendants had not presented any evidence of their financial circumstances.
Third, during its deliberations, the jury sent a note to the court asking three questions: “Who pays punitive damages?“, “Does it come out of defendant‘s personal income?“, and “Who receives punitive damages?” Over Provost‘s objections, the court answered these questions by explaining to the jury that “[i]f you make an award of punitive damages against any individual defendant, in accordance with my instructions, that individual defendant pays the punitive damages,” and that “[a]ny such award of punitive damages is the personal responsibility of the individual defendant.” Provost requested that the court instruct the jurors “that they not concern themselves with who pays punitive damages.”
Before the case was sent to the jury, the defendants moved orally for judgment under
On February 24, 2000, the defendants renewed their motion for judgment as a matter of law pursuant to
On May 18, 2000, the district court denied the defendants’ motions in all respects but one: It held that Sorrentino was entitled to judgment as a matter of law because “there was no evidence that [he] participated directly in plaintiff‘s arrest or that he... was grossly negligent or deliberately indifferent” with respect to Provost‘s rights. Accordingly, the court dismissed the complaint as to Sorrentino and entered judgment against Roper in the amount of $10,001.
Provost appealed that dismissal as well as the three aspects of the trial proceedings to which he objected. Roper cross-appealed the court‘s denial of his motions for judgment as a matter of law.
DISCUSSION
I. Provost‘s Appeal from the Grant of Judgment as Matter of Law to Sorrentino
Provost first argues that the district court erred in dismissing his claims against Lieutenant Sorrentino based on its finding that Sorrentino was not personally involved in the disputed arrest.
We review a district court‘s grant of a motion for judgment as a matter of law de novo, see Diesel v. Town of Lewisboro, 232 F.3d 92, 103 (2d Cir. 2000), applying the same standard that the district court itself was required to apply, see LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 429 (2d Cir. 1995). As the district court recognized, “[j]udgment as a matter of law may not properly be granted [to Sorrentino] under Rule 50 unless the evidence, viewed in the light most favorable to [Provost], is insufficient to permit a reasonable juror to find in [Provost‘s] favor.” Galdieri-Ambrosini v. National Realty & Dev. Corp., 136 F.3d 276, 289 (2d Cir. 1998).
The court also correctly noted that “[i]t is well settled in this Circuit that ‘personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under
We turn first to the issue of Sorrentino‘s personal participation in the violation. Our opinions have sometimes used the phrase “direct participation” to describe one sort of behavior that will result in a defendant‘s liability under
The potential for overinclusion results from the phrase‘s failure to make clear that the direct physical participation of the defendant in the constitutional violation is not alone a sufficient basis for holding the defendant liable if the defendant had no awareness or notice of the facts that rendered the action illegal. If, for example, a defendant police officer arrests a person pursuant to an apparently valid arrest warrant but, unbeknownst to the defendant, the arrest warrant was procured through perjurious affidavits of other police officers motivated by racial bias, the defendant might be said to have “participated directly.” But such innocent participation in the arrest cannot make him liable for its illegality.
Thus, what we have meant by using phrases such as “direct participation” as a basis of liability is personal participation by one who has knowledge7 of the facts that rendered the conduct illegal. See Gaston v. Coughlin, 249 F.3d 156, 165-66 (2d Cir. 2001) (allegation of two defendants’ “actual knowledge” of prison conditions showed sufficient personal involvement to defeat summary judgment); Snider v. Dylag, 188 F.3d 51, 55 (2d Cir. 1999) (finding personal involvement where prison official issued order of permission for inmates to abuse plaintiff, though he was not present during the alleged abuse); Moffitt, 950 F.2d at 886 (finding that personal involvement “may be premised upon [defendants‘] alleged knowledge” of the unconstitutional conduct “and a resulting direct participation therein“); Meriwether v. Coughlin, 879 F.2d 1037, 1046 (2d Cir. 1989) (finding personal involvement where defendant gave instructions that prisoners be transferred and the jury could “infer that he knew” retaliation against plaintiffs would likely result); Wright v. McMann, 460 F.2d 126, 134-35 (2d Cir. 1972) (affirming damage award based on evidence of the defendant‘s “actual knowledge” of segregation cell conditions). In contrast, we have found no liability where the defendant lacked actual knowledge. See, e.g., Wright, 21 F.3d at 501 (finding no liability where officials lacked notice or knowledge of the alleged unconstitutional confinement).
Use of the phrase “direct participation” can also lead to underinclusion, depending on the meaning one attributes to the word “direct.” We think that the significance of the word is to distinguish “direct” participation from other bases of liability, such as grossly negligent supervision or deliberate indifference to a victim‘s rights. It does not foreclose the liability of a person who, with knowledge of the illegality, participates in bringing about a violation of the victim‘s rights but does so in a manner that might be said to be “indirect” -- such as ordering or helping others to do the unlawful acts, rather than doing them him- or herself.
We therefore examine, applying this standard, the facts pertinent to Lieutenant Sorrentino‘s liability, seen in the light most favorable to Provost. Sorrentino was present in the police headquarters acting in a supervisory role throughout these events. He became aware of a problem between Provost and the desk clerk on the other side of the bullet-proof window; he told Roper to go “handle” the matter; and he was in the hallway standing a few feet behind Roper while Roper conversed with Provost and made the arrest. Provost had no evidence beyond this capable of showing Sorrentino‘s awareness of the facts surrounding Roper‘s arrest of Provost.
This evidence is insufficient to serve as a basis for a reasonable juror to conclude that Sorrentino had knowledge of the activities of the arresting officer and participated in them. See Moffitt, 950 F.2d at 886. Because the evidence fails to show that Sorrentino was aware of the facts that made the arrest unconstitutional, the jury could not hold Sorrentino liable on the basis of his personal involvement in the illegal arrests.
When “there is such a complete absence of evidence supporting the verdict that the jury‘s findings could only have been the result of sheer surmise and conjecture,” DiSanto v. McGraw-Hill, Inc./Platt‘s Div., 220 F.3d 61, 64 (2d Cir. 2000) (internal quotation marks omitted), or “pure guess-work,” Doctor‘s Assocs., Inc. v. Weible, 92 F.3d 108, 112 (2d Cir. 1996), cert. denied, 519 U.S. 1091 (1997), we are required to grant a motion for judgment as a matter of law. The jury‘s conclusion that Sorrentino was personally involved in Provost‘s arrest based on Provost‘s testimony and on inferences drawn therefrom was, at best, the result of such speculation. The district court therefore properly granted the defendants’
We also agree with the district court that the evidence does not justify an inference either that Sorrentino was grossly negligent in supervising Roper or that he could be said to have been deliberately indifferent to Provost‘s rights. The jury could reasonably have found that Roper acted for legally impermissible reasons and without legal reasonableness in arresting Provost. But the evidence did not show that Sorrentino knew or should have known of the reasons underlying Roper‘s decision or of the facts that made it illegal. Absent such evidence, there is no basis for finding that Sorrentino was either grossly negligent in supervising Roper or was deliberately indifferent to a violation of Provost‘s rights by an officer under Sorrentino‘s supervision.
In any event, Provost apparently did not seek to base Sorrentino‘s liability on his role as Roper‘s supervisor until Provost responded to Sorrentino‘s
A. Probable Cause
In his cross-appeal, Roper first argues that the district court erred in failing to overturn as a matter of law the jury‘s conclusion that he did not have probable cause to arrest Provost for disorderly conduct.
“A
To prove the crime of disorderly conduct under
1. The Public Conduct Requirement. The New York disorderly conduct statute punishes “disruptive behavior... of public rather than individual dimension.” People v. Munafo, 50 N.Y.2d 326, 331, 406 N.E.2d 780, 783, 428 N.Y.S.2d 924, 926 (1980). “The clear aim was to reserve the disorderly conduct statute for situations that carr[y] beyond the concern of individual disputants to a point where they... become a potential or immediate public problem.” Id.
2. The Intent Requirement. Roper‘s argument fails, nonetheless, first, on the independent mens rea element of
It is true that Provost testified that he “banged on the glass,” and “hollered,” and “yelled through the window.” But, viewing the evidence in the light most favorable to Provost, there is no reason to believe he did these things with any purpose other than to communicate with Fisher through the thick, bullet proof, glass partition. It was the clear thrust of Provost‘s testimony that Fisher either did not hear him or ignored him by pretending not to hear him, and that he raised his voice in order to be heard.
Provost‘s testimony was also supported by Roper, who testified that a person would have to “raise [his] voice to communicate” through the bullet-proof glass at the police station and that “[i]t‘s normally very difficult to hear people that are speaking in a normal tone of voice.” Another police officer testified similarly. The jury could reasonably have concluded that Roper knew that Provost‘s “holler[ing]” and “yell[ing] through the window” was for the legitimate purpose of getting the desk officer‘s attention, not to cause “public inconvenience, annoyance or alarm.”
The issue here is thus not unlike that in Gagnon v. Ball, where we refused to overturn a jury verdict against two Connecticut officers who had arrested a woman as she sought their assistance in apprehending an alleged “flasher” who was apparently fleeing the crime scene. See 696 F.2d at 19. Despite “uncontroverted evidence showing that [the plaintiff] was shouting and using rough language in a public area,” we held that in light of the officers’ concessions at trial that they were aware of the circumstances prompting the plaintiff‘s boisterous behavior, it was “a fair jury question as to whether the officers lacked probable cause” regarding the intent element of the materially identical Connecticut disorderly conduct statute. Id. at 20. Although the facts of Gagnon are substantially different from those of the case at bar, the underlying principle is relevant to this appeal: an officer who concedes the possibility that there were justifiable reasons for disruptive conduct underlying a plaintiff‘s arrest is hard-pressed to establish that he had probable cause as a matter of law on the intent element of
3. Statutory Provisions. Even if Roper reasonably believed that Provost‘s behavior met these two general requirements of
Viewing all this evidence in the light most favorable to Provost, we conclude that a jury could reasonably find that Provost raised his voice and “banged on the glass” only to the extent it was necessary to do so to be heard and that the noise he made was not “unreasonable” in the circumstances and that Roper understood as much.
Roper testified, moreover, that he did not decide to arrest Provost until after Provost had gone into the back of the station. The jury could rationally have found on that basis that Roper did not believe Provost made unreasonable noise when he banged on the glass and hollered through the slot in the window. Instead, a reasonable jury could have found that Roper‘s testimony about Provost‘s noisiness was a pretext developed after the fact and that Roper really arrested Provost in retaliation for the angry, insulting attitude Provost exhibited after he had been summoned by Roper into the hallway. The jury could have found, in other words, that Roper‘s decision to arrest Provost was an abuse of power and that Roper‘s claim that Provost made a public disturbance was a falsification.
Subdivision (3) of
Even if the jury had chosen to credit the officers’ account of Provost‘s language, moreover, that language could not be the basis for a valid arrest because, as the district court concluded and the defendants do not dispute on appeal, it was constitutionally protected. “Only ‘fighting words’ directed at police officers can be criminalized, and the ‘fighting words’ doctrine is probably ‘narrower [in] application in cases involving words addressed to a police officer, because a properly trained officer may reasonably be expected to exercise a higher degree of restraint than the average citizen.‘” Posr, 180 F.3d at 415 (quoting City of Houston v. Hill, 482 U.S. 451, 462 (1987)). “Fighting words must tend to incite an immediate breach of the peace.” Id. (emphasis in original). Because Provosts’ language by all accounts did not meet this “fighting words” standard, his speech was protected by the First Amendment. And “First Amendment protection means, of course, that an utterance [could] not have been the basis for a legitimate arrest, which in turn means that [Roper] would not have been justified in believing that [Provost‘s] comment[s] warranted arrest for disorderly conduct.” Id. at 416. The jury thus could reasonably have concluded that Roper did not have probable cause to believe that Provost‘s behavior fit within
B. Qualified Immunity
Roper next argues that even if he did not have probable cause to arrest Provost, he nonetheless has a valid defense under the doctrine of qualified immunity. He contends that the jury erred in concluding that he was not entitled to this defense and requests that we overturn that conclusion as a matter of law.
“In general, public officials are entitled to qualified immunity if (1) their conduct does not violate clearly established constitutional rights, or (2) it was objectively reasonable for them to believe their acts did not violate those rights.” Weyant, 101 F.3d at 857. In an unlawful arrest action, an officer is immune if he has “‘arguable’ probable cause,” Lee v. Sandberg, 136 F.3d 94, 103 (2d Cir. 1997), and is subject to suit only if his “judgment was so flawed that no reasonable officer would have made a similar choice.” Lennon v. Miller, 66 F.3d 416, 425 (2d Cir. 1995). This forgiving standard protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).
Qualified immunity “serves important interests in our political system,” Sound Aircraft Servs., Inc. v. Town of East Hampton, 192 F.3d 329, 334 (2d Cir. 1999), chief among them to ensure that damages suits do not “unduly inhibit officials in the discharge of their duties” by saddling individual officers with “personal monetary liability and harassing litigation.” Anderson v. Creighton, 483 U.S. 635, 638 (1987). Cf. Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 456 F.2d 1339, 1348 (2d Cir. 1972) (“[E]ven learned and experienced jurists have had difficulty in defining the rules that govern a determination of probable cause.... As he tries to find his way in this thicket, the police officer must not be held to act at his peril.“).
Roper would have been entitled as a matter of law to qualified immunity if the evidence, viewed in the light most favorable to Provost, established that it was objectively reasonable for Roper to believe he was justified in making the arrest. It may well be, for the reasons set forth above, that the jury could reasonably have found (i) that there was no basis to believe Provost was making unreasonable noise, (ii) that Roper did not have such a belief, and (iii) that Roper‘s testimony to the contrary was nothing more than a pretext to cover up an unjustified act of abuse of power. If the jury could so find, Roper would not be entitled to qualified immunity as a matter of law.
We need not resolve the merits of Roper‘s qualified immunity argument, however, because he forfeited any right to judgment under
The second hurdle is
Because Roper did not specifically include a qualified immunity argument in his pre-verdict request for judgment as a matter of law, he could not have included such an argument in his post-verdict motion even had he attempted to do so. See Lambert v. Genesee Hosp., 10 F.3d 46, 54 (2d Cir. 1993) (“[T]he specificity requirement is obligatory.“), cert. denied, 511 U.S. 1052 (1994). Absent such a motion that includes the specific grounds for relief, this Court is “without power to direct the District Court to enter judgment contrary to the one it had permitted to stand.”11 Borger v. Yamaha Int‘l Corp., 625 F.2d 390, 395 (2d Cir. 1980) (internal quotation marks omitted); see also Pittman v. Grayson, 149 F.3d 111, 119 (2d Cir. 1998) (noting that it is “well established” that a party cannot seek judgment as a matter of law on appeal “on a given issue unless it has timely moved in the district court for” such relief); McCardle, 131 F.3d at 50 (“[T]he defense [of qualified immunity] cannot properly be decided by the court as a matter of law unless the defendant moves for judgment as a matter of law... in accordance with
III. Provost‘s Other Allegations of Error
Because we cannot dismiss Roper on the grounds advanced in his cross-appeal, we must address Provost‘s challenges to three aspects of the trial proceedings. We conclude that although one such challenge demonstrates error, none requires reversal.
A. Evidentiary Ruling
Provost first appeals the district court‘s refusal to allow his proffered testimony describing the alleged abuse of other detainees that he claimed to have witnessed while incarcerated at the Newburgh police station. We reject this challenge. “Decisions to admit or exclude evidence are reviewed for abuse of discretion and are overturned only where arbitrary or irrational.” United States v. Han, 230 F.3d 560, 564 (2d Cir. 2000). The district court acted well within its “broad discretion,” Gentile v. County of Suffolk, 926 F.2d 142, 151 (2d Cir. 1991), in concluding that the disputed testimony was either irrelevant to the plaintiff‘s claims -- there is no evidence that any of the defendants took part in the alleged misconduct -- or that any relevance was “substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.”
B. Punitive Damages Instruction
Provost next objects to the court‘s jury instructions on punitive damages, the relevant portion of which read:
The extent to which a particular sum of money will adequately punish the defendant and the extent to which a particular sum will adequately deter or prevent future misconduct may depend upon the financial resources of the defendant against which damages are awarded. Therefore, if you find that punitive damages should be awarded against the defendant, you may consider the financial resources of the defendant in fixing the amount of such damages.
Emphasizing that the defendants did not present any evidence of their financial circumstances, Provost argues that this instruction was erroneous and prejudicial.
In this case, the defendants did not present evidence of their financial circumstances, and the court therefore should not have instructed the jury to consider that issue in calculating a punitive award. See Lee v. Edwards, 101 F.3d 805, 813 (2d Cir. 1996) (noting that the jury properly did not weigh the defendant‘s financial resources in determining a punitive award because of the defendant‘s “tactical error” in failing to present relevant evidence). By doing so, the court not only relieved the defendants of their burden in this regard, but also left the jurors to speculate about the depth of the pockets from which the punitive damages would come.
We disagree with Provost, however, that this error was prejudicial. The jury, although finding that Provost suffered no compensable injury, awarded him $10,000 in punitive damages against Roper based on a one dollar award of nominal damages. His contention that he has been prejudiced by the jury‘s unwillingness to give him more than that as a result of the court‘s erroneous instruction runs headlong into our duty to “make certain that... punitive damages are reasonable in their amount and rational in light of their purpose to punish what has occurred and to deter its repetition.” Vasbinder v. Scott, 976 F.2d 118, 121 (2d Cir. 1992) (internal quotation marks omitted). Because the defendants have not raised the issue, we of course do not decide whether the jury‘s award is “grossly excessive” in violation of the Due Process Clause of the Fourteenth Amendment. BMW of N. Am., Inc v. Gore, 517 U.S. 559, 562 (1996). But we note that on the particular facts and circumstances of this case and under the criteria set forth in Gore, 517 U.S. at 575-85 (instructing courts to review excessiveness by reference to the reprehensibility of the tortious conduct, the ratio of punitive to compensatory damages, and the difference between the award and other civil penalties imposed or authorized in similar cases), the $10,000 punitive damages sum approaches the limits of what we would deem consistent with constitutional constraints. It follows that Provost could not have been harmed by the disputed instruction. The court‘s error does not warrant a new trial. See United States v. Masotto, 73 F.3d 1233, 1238 (2d Cir.) (“An erroneous instruction requires a new trial unless the error is harmless.“), cert. denied, 519 U.S. 810 (1996).
Finally, we reject Provost‘s third and final argument on appeal: that reversal and remand is required because the court erred in responding to a jury question that the defendants would be personally responsible for paying a punitive damages award. As we have observed, because additional punitive damages were unwarranted, any error could not have been prejudicial.
CONCLUSION
The district court properly granted the defendants’ motion for judgment as a matter of law with respect to Sorrentino and correctly denied it in all other respects. The court also acted within its discretion in excluding Provost‘s proffered evidence on the emotional distress he suffered as a result of witnessing police brutality at the Newburgh police station. Although the court erred in instructing the jury that it could consider the defendants’ financial circumstances in calculating punitive damages in the absence of the presentation by Roper of any relevant evidence on that issue, this error was harmless. We therefore affirm the judgment of the district court in all respects.
JON O. NEWMAN, U.S. Circuit Judge, dissenting (as to Defendant Roper):
The majority affirms a judgment requiring Police Officer John Roper to pay $10,000 in punitive damages because his lawyer neglected to include qualified immunity among the grounds for seeking judgment as a matter of law. Because I believe that under the circumstances of this case it is unfair to consider Roper‘s qualified immunity defense forfeited and because I believe the defense is valid as a matter of law, I respectfully dissent.
Provost‘s conduct. The key facts entitling Roper to the defense of qualified immunity are not disputed. Robert Provost, owner and operator of a halfway house, came to the Newburgh police station in an effort to retrieve a halfway house resident believed to be there. On five occasions during a one-hour interval, he asked at the reception window of the public waiting area to have the resident produced. He was told to wait. Six or seven people were seated in the waiting area.
In trial testimony, Provost described his own conduct as follows. “I hollered through” “a little slit underneath” the glass window. “I... banged on the glass.” “I yelled through the window.” In response to the question, “Is it your recollection now that you did become noisy at some point?” Provost answered, “The fifth time.... Yes, yes.”
Roper and his supervisor, Lieutenant Patrick Sorrentino, were standing together in a room behind the glass window, 25 to 30 feet from the officer at the window. Roper and Sorrentino were discussing one of Roper‘s reports. Both were in the identical position to see Provost at the window and to hear Provost‘s yelling. Sorrentino told Roper to “go and handle the problem.” Roper testified, without dispute by Provost, that once he realized that Provost was not going to calm down, he placed Provost under arrest for disorderly conduct. Sorrentino was standing behind Provost when the arrest occurred and took no action to prevent it.
Probable cause to arrest. On these undisputed facts, there is a substantial argument that probable cause existed for Provost‘s arrest. Even if, as the majority points out, it is necessary to raise one‘s voice somewhat to be heard through the slit in the window, Provost‘s undisputed conduct in yelling, hollering, banging on the glass, and becoming even noisier on the fifth occasion than on the prior occasions sufficed “to warrant a person of reasonable caution in the belief that [Provost] ha[d] committed... a crime.” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996). New York law defines disorderly conduct to include a person who “makes unreasonable noise” “recklessly creating a risk” of “public... annoyance.”
Waiver of qualified immunity defense. Nevertheless, the majority declines to accord Roper the defense of qualified immunity because it rules that he forfeited the defense at trial. My disagreement requires a full understanding of the pertinent circumstances.
The Defendants asserted the defense of qualified immunity in their answer. At the close of the evidence, counsel for the Defendants moved for judgment as a matter of law (“JMOL“) on the ground that the undisputed facts established probable cause for the arrest.2-1 The majority rules that a forfeiture occurred because counsel did not amplify his motion by saying, “Your honor, not only do the undisputed facts establish probable cause, but, in addition, they also show that it was objectively reasonable for officer Roper to believe that these undisputed facts established probable cause.” Despite that omission, the issue of qualified immunity was raised before the trial judge when counsel for Provost asked to have the qualified immunity defense removed from the proposed jury charge on the ground that there were no “questions of fact [that] need to be resolved by the jury.” The Court denied the request, stating, “I do find there‘s factual issues for the jury, and I will be giving them a qualified immunity instruction.”
In ruling that Roper forfeited the qualified immunity defense, the majority is faulting his counsel for not getting up at that point and saying, “Your Honor, I realize that you have just denied the Plaintiff‘s motion for judgment as a matter of law on our qualified immunity defense, but technically, in making that ruling, you had to consider the undisputed facts viewed from the Defendants’ standpoint; I now ask you to rule that we are entitled to qualified immunity as a matter of law, viewing the undisputed facts from the Plaintiff‘s standpoint.” I have little doubt that the Magistrate Judge would most likely have replied, “Counsel, didn‘t you just hear me say that I find there are factual issues for the jury on the qualified immunity defense?” and counsel, apprehensive that a discourse on the technical distinction between a JMOL motion made by a defendant and a JMOL motion on the same issue made by a plaintiff would have incurred at least a reprimand, would have simply said, “Yes, Your Honor” and sat down.3-1
In the pending case, neither purpose is served by enforcing a forfeiture against Roper. Neither at the conference at the close of the evidence nor at any time thereafter has his adversary claimed that he has been denied an opportunity to present any further evidence that would support his side of the qualified immunity issue. Indeed, he argued to the trial judge that, from his standpoint, there were no factual issues on the qualified immunity defense. As for the trial judge, he had a clear opportunity to remove the qualified immunity issue from the jury‘s consideration and declined to do so.4-1
Other courts have recognized that an issue has been adequately presented in a JMOL motion when it is “inextricable intertwined” with an issue that was presented. See Rockport Pharmacy, Inc. v. Digital Simplistics, Inc., 53 F.3d 195, 198 (8th Cir. 1995); see also Parkway Garage, Inc. v. City of Philadelphia, 5 F.3d 685, 691 (3d Cir. 1993) (issue raised “a bit obliquely” sufficed to warrant consideration on motion for JMOL). In the pending case, whether it was objectively reasonable for Roper to believe that he had probable cause was surely intertwined with the issue of whether he had probable cause.5-1 I acknowledge that in a prior decision our Court has declined to consider a qualified immunity defense where a JMOL motion identified only the issue of ultimate legality of police conduct and not the issue of the officer‘s objectively reasonable belief in the legality. See McCardle v. Haddad, 131 F.3d 43, 52 (2d Cir. 1997). But in McCardle there had been no mention of qualified immunity in any conference with the trial court, and the defense “would have been difficult to establish.” Id. In the pending case, the issue was discussed with the trial judge, and the undisputed facts, viewed from the Plaintiff‘s standpoint, established the defense. Because the rules of civil procedure are to “administered to secure the just... determination of every action,”
The injustice of enforcing a forfeiture of Roper‘s defense in the absence of any prejudice to the Plaintiff is manifest if one considers only Roper‘s case. But the injustice is exacerbated by comparison of his situation with that of his supervisor, Lt. Sorrentino. Both Roper and Lt. Sorrentino saw and heard exactly the same conduct by Provost. Sorrentino was not merely “present in the police headquarters,” 262 F.3d at 155, as the majority recounts; he was in the same position as Roper to see and hear all of Provost‘s conduct. Sorrentino told Roper to “handle the problem.” Roper tried to calm Provost down and, when that effort failed, arrested him for disorderly conduct, with Sorrentino standing immediately behind Provost, obviously observing and condoning the arrest. “It is widely recognized that all law enforcement officials have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence.” Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994); see O‘Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988). “An officer who fails to intercede is liable for preventable harm caused by the actions of the other officers where that officer observes or has reason to know:... that a citizen has been unjustifiably arrested.” Anderson, 17 F.3d at 557.
I would extend Sorrentino the same qualified immunity defense that I believe Roper should have, but if Sorrentino is to be exonerated, as the majority rules, not because of qualified immunity (which the majority deems forfeited) but because he is deemed not to have any liability for the arrest, then the injustice to Roper is heightened. The lieutenant who ordered his subordinate to “handle the problem” that both had seen and heard and then stood by while the subordinate “handled” the matter by making a disorderly conduct arrest is exonerated from liability while the subordinate is required to pay $10,000 in punitive damages because his lawyer failed to argue that there were no factual issues on the qualified immunity defense after hearing the trial judge say he thought there were such issues. If that is not a “manifest injustice,” I am not sure what the phrase means.
Ultimately this police officer is being punished for just one thing-- his lawyer‘s mistake. In the circumstances of this case, that is an entirely unjustified outcome, one that elevates legal formalism above basic fairness. Since I cannot persuade the majority to rule in Roper‘s favor, I can only hope that if his employer does not reimburse him, his lawyer will do so, thereby sparing the courts a suit for legal malpractice. I respectfully dissent as to Defendant Roper.