No excessive force claim without affirmative evidence that defendant used force against plaintiff

In this police misconduct case, the jury returned a verdict in plaintiff's favor on a series of claims, including false arrest and excessive force. The trial court then took away the excessive force verdict as to certain defendants. The Court of Appeals finds that the plaintiff has no case against these defendants on the excessive force claim who testified they did not do anything wrong.


The case is Walker v. City of New York, a summary order issued on January 5. The district court in July 2015 summarized the verdict as follows:

The jury returned a verdict in favor of plaintiff on five of the eight remaining claims and awarded a total of $260,000. On the excessive pre-arraignment detention and fabrication of evidence charges, the jury found defendant Hennin liable and imposed $125,000 in compensatory and punitive damages. The jury awarded another $85,000 based on its findings that defendant Morrissey and "Another Employee" used excessive force and that defendant Barbieri failed to intervene. Finally, Walker received an award of $50,000 due to the finding that the City of New York was liable for the state law assault and battery claims. The jury found for defendants on the false arrest and malicious prosecution claims and did not reach the negligence issue.

Here is the issue on appeal: Defendant Morrissey says she did not assault plaintiff. Plaintiff testified that Morrissey was not present at the time of the assault and that everyone near him during the assault were men. Morrissey is a woman. "Both witnesses, then, testified that Morrissey did not employ force against Walker, and no other evidence supports a contrary conclusion." 

So how did the jury rule against Morrissey? The Court of Appeals says it was not allowed to do so. This holding implicates an interesting legal principle that surfaces from time to time: "plaintiff does not carry his burden of proving a fact merely by having witnesses deny that fact and asking the jury to decline to believe the denials." There has to be some affirmative evidence that the incident happened.

Practically speaking, this means that great trial lawyering will not always win you the case. If the defendants deny they did anything wrong, and your cross examination makes them look foolish or stupid, the jury cannot find in the plaintiff's favor solely on the basis of that cross examination without some affirmative evidence that the plaintiff was wronged.