Six figure civil rights verdict thrown out on appeal

Private individuals can be sued for a constitutional violation if they conspire with public officials, i.e., police officers, in depriving someone of his rights. This is the exception to the general rule that private actors are not governed by constitutional standards. In this case, the plaintiff recovered damages against a bar which allegedly conspired with the police to violate his rights. The Court of Appeals takes that verdict away.

The case is Demeo v. Tucker, a summary order decided on January 29. Demeo claimed that an officer and a bar bouncer assaulted him at a bar, the Phlip'n Spill. He also says the bar and the officer conspired to destroy video surveillance footage of the assault, in violation of the due process right to access the courts. The jury agreed that the bar conspired with the police officer in this regard, and plaintiff was awarded $110,000 in compensatory and punitive damages.

As the Court of Appeals (Jacobs, Pooler and Chin) puts it, "the jury concluded that Phlip’N Spill acted as a willful participant in joint activity with Trooper Reyner and deprived DeMeo of due process by altering, destroying, or losing video evidence. However, the jury concluded that Trooper Reyner did not deprive DeMeo of due process by altering, destroying, or losing video evidence."  This looks to be an inconsistent verdict. If the officer did not violate plaintiff's rights, then the private actor could not have conspired with the officer to violate his rights.

Trying to save the verdict, the district court post-trial said that the trooper may have encouraged the bar to destroy the evidence. But the Court of Appeals says this is "naked conjecture" for which there is no proof. "It is, quite simply, a fiction." The verdict is gone.