Excessive force claim comes back to life

This is the second installment in this false arrest/excessive force case that yielded a large verdict that the district court and Second Circuit took away. This time around, I talk about the excessive force claim.

The case is Figueroa v. Mazza, decided on June 3. After plaintiff was placed in the police car following his bad arrest in connection with lewd child photographs, an unidentified officer punched him in the face. Prior to that, plaintiff said, the officers had manhandled him during the arrest. The jury awarded plaintiff money for the excessive manhandling, but the trial court dismissed the claim that the officers had failed to protect him when someone punched him in the face. The Court of Appeals agrees that there is no excessive force claim on the manhandling allegations, but that plaintiff deserves a trial on the failure to intervene on the face-punch claim.

For the Court of Appeals, the manhandling claim is not complicated. Here is the reasoning (Samuel is Figueroa):

Here, defendants did nothing more than “grip[ ]” Samuel’s shoulders, and “push[ ]” him out of his mother’s apartment to the waiting police car. The officers had need to push Samuel along because he lightly resisted by stiffening his legs, and their pushing caused him no injury. There is no suggestion in the record that this application of light force was actuated by malice or a desire to cause harm. Accordingly, every factor enumerated in Johnson weighs against Samuel, who complains basically of the kind of de minimis physical contact common to virtually every custodial arrest.

In other words, some police force is OK under the circumstances. The jury may have thought otherwise, but the jury does not have the final say. We do not tell jurors this when they preside over the case, but everything they do is carefully scrutinized after they enter their verdict.

But the failure to intervene claim on the face-punch claim is revived and will go to trial. The trial judge thought the face punching happened too quickly for the officers to intervene. The Court of Appeals says the trial judge did not view the evidence in the light most favorable to plaintiff's claim, instead basing its findings on plaintiff's quick hand gestures at trial (less than 20 seconds) that replicated what had happened to him. Except that plaintiff never claimed that he was reenacting the duration of the attack. In addition, another witness said the assault went on for at least one minute, maybe two minutes. The Court then invokes an interesting evidentiary rule that I have always wondered about: "A party that admits on the witness stand a fact damaging to his case is ordinarily free to contradict that fact through the testimony of other witnesses and argue that their testimony should be believed over his own. Such an argument might cut no ice with the finder of fact, but the matter lies squarely in the jury’s province."

One other point: the Court rejects any argument that failure to intervene claims require a bright-line rule on how long the assault must take place. The trial court said that assaults that take place less than 20 seconds cannot predicate failure to intervene claims, but that event happens too quickly for the police to help the victim. But the Court of Appeals does not always like bright-line rules, reasoning:

Failure‐to‐intervene claims can arise out of a limitless variety of factual circumstances. In each case, the question whether a defendant had a realistic chance to intercede will turn on such factors as the number of officers present, their relative placement, the environment in which they acted, the nature of the assault, and a dozen other considerations. Among these considerations, of course, the assault’s duration will always be relevant and will frequently assume great importance. But this does not permit distillation of a hard‐and‐fast temporal cutoff of the kind relied on by the District Court. Instead, courts must evaluate each case on its own facts, keeping in mind that circumstances other than an assault’s duration might bear significantly on an officer’s ability to stop it from happening. The essential inquiry is whether, under the circumstances actually presented, an officer’s failure to intervene permits a reasonable conclusion that he became a “tacit collaborator” in the unlawful conduct of another.