The case is Porter v. Goord, a summary order decided on March 15. Porter was an inmate who sued prison guards for excessive force. This case was filed in the Western District of New York, which dismissed the case. That cannot happen, of course, unless the Attorney General's office filed a motion for summary judgment. I guess the state's appellate lawyer got a fresh look at the case. While the AG's office is supposed to defend the district court's ruling, it did not do so here even though inmate Porter brought the appeal pro se and presumably did not write a stellar brief.
Must have been a real bummer for the Attorney General's office to make concessions like this. It will give you credibility with the Second Circuit, but it means that that office will lose the appeal and its trial team has more one case to try. The Court of Appeals (Jacobs, Chin and Carney) tells the story:
As to the excessive-force claim, the defendants concede that the district court erred in granting summary judgment for New York State Department of Correctional Services (“DOCS”) Officers Paul Weed, Peter Mastrantonio, and Joel Armstrong. Porter has disputed the defendants’ account of the incident, specifically denying that he provoked Officer Mastrantonio by kicking him and that he violently resisted the subsequent attempts to subdue him. Moreover, the record does not indicate whether the evidence adduced by Porter disputing the officers’ account is “contradict[ed]” by the surveillance video that supposedly captured (a portion of) the incident.
The defendants also concede that the district court erred in granting summary judgment for Sergeant Gary Morse on Porter’s claim that Morse failed to intervene to prevent the other officers from using excessive force. “A law enforcement officer has an affirmative duty to intercede on the behalf of a citizen whose constitutional rights are being violated in his presence by other officers,” ... and “is liable for the preventable harm caused by the actions of the other officers where that officer observes or has reason to know ... that excessive force is being used.” ... The record reflects a genuine issue of material fact as to whether Morse failed to protect Porter from an alleged assault by officers that he knew or had reason to know was occurring.