Circuit sustains $315k excessive force verdict

Paul Weather went to a high school basketball game in Mount Vernon. When he tried to leave the building at halftime, he came upon police officers near the door. Weather told the officers that he was a retired detective but had left his identification inside. The officers called over Sgt. Marcucilli. According to Weather, the Sgt. beat the crap out of him, fracturing his clavicle, injuring his rotator cuff and aggravating a prior injury to the other rotator cuff. The jury awarded Weather $315,000 in damages, including $25,000 in punitives. The Court of Appeals affirms the verdict.

The case is Weather v. City of Mount Vernon, a summary order decided on April 11. Once the jury weighs in on the evidence, it is hard to convince the Court of Appeals to override the verdict unless the Court made some legal error at trial. Mount Vernon is unable to do so. The Second Circuit (Walker, Straub and Pooler) says: "The majority of appellants’ arguments rest on the contention that Weather’s constitutional rights were not violated by Marcucilli’s use of force. But such contention is largely foreclosed by the jury’s verdict, which found that Weather 'proved by a preponderance of the evidence that the defendant, Sergeant Marcucilli, intentionally or recklessly applied excessive force on Mr. Weather on January 12, 2007 in a manner that was objectively unreasonable under the circumstances.'”

Here are the relevant factors in determining whether someone has a claim for excessive force under the Fourth Amendment: courts consider the severity of the crime at issue, whether the suspect posed a threat to anyone and whether he was actively resisting arrest. The officers can use force in certain cases, i.e., if the suspect was charged with a serious crime or was resisting arrest. Not here. There are some interesting holdings in this case, though the Court of Appeals easily rejects all of defendants' arguments.

First, defendants argued that the Sergeant thought that plaintiff was impersonating a police officer, but the jury rejected that defense at trial. Even if Weather had committed disorderly conduct, that is not a crime in New York, but a non-criminal violation. Excessive force is harder to get away with when the suspect is engaging in disorderly conduct. If the Court of Appeals has reached this holding previously, I am not aware of it, and the decision cites no authority on this point.

Second, defendants said that Weather was actively resisting arrest because "he was not calm during his testimony." But, the Second Circuit says, "the demeanor of a witness and what it means about that witness's version of events could not be a more quintessential question for the jury." On top of this, the jury was able to find that Weather was not trying to resist an arrest. As far as the Circuit is concerned, this was a gratuitous use of force by the sergeant. "No reasonable officer would believe that 'twisting Mr. Weather's arm behind his back and pushing or shoving him into the brick wall outside the school' was a lawful use of force this circumstance."