The case is Outlaw v. City of Hartford, decided on March 7. The Court of Appeals lays out the facts in detail. Outlaw was leaving a restaurant when someone called him a mother fucker, to which Outlaw responded in kind. The mofo guy was actually an undercover detective, Gordon, who jumped out of his car and attacked plaintiff, starting a fight in which other officers beat him up as he lay on the ground. The jury found that a different defendant, Allen, had used excessive force in violation of the federal and state constitutions, but that defendants did not commit assault and battery. The district court then issued a bench ruling on the qualified immunity defenses, determining after reaching specific facts that plaintiff's account of who was at fault for his injuries was more credible and that plaintiff did not strike Gordon and that Allen had beat him senseless.
Allen says on appeal that something is wrong with the verdict against him because the excessive force finding (favoring plaintiff) and the assault findings (favoring Allen) are inconsistent. The Court of Appeals (Kearse, Livingston and Katzmann) disagrees, once again reminding us that it is quite difficult to challenge factual findings and jury verdicts on appeal. The Court says in part that "the jury, in finding that Outlaw had not proven his claim against Allen for assault, could well have based that finding on an inference that a certain amount of force was reasonably used merely to effect Outlaw's arrest. There was no necessary inference that the jury found -- either also or instead -- that Allen was apprehensive for his own safety or anyone's safety." In addition, the jury was instructed in a way that allowed it to find that some but not all of the force used by Allen was justified. And, while Allen wants the Second Circuit to grant him qualified immunity, he forgets that he had the burden of proof on that issue.
The jury's finding that Outlaw did not carry his burden of proving assault by a preponderance of the evidence thus did not mean that it found that Allen carried his own burden of establishing the factual predicates on which his claim of entitlement to qualified immunity is based, for example, that Outlaw was hitting Gordon, or attempting to hit Gordon, or acting threateningly or aggressively.Relatedly, Allen did not ask the trial court to have the jury decide the factual issues relating to qualified immunity. The trial court resolved the factual issues on its own. That makes Allen's appellate challenge even more difficult.
In sum, we conclude that Allen's arguments that the jury necessarily made factual findings that (a) would entitle him to qualified immunity, and (b) were contrary to the posttrial factual findings made by the court, are meritless. The jury made no findings, express or implicit, as to whether Allen carried his burden of establishing any factual predicate for his defense. The court, having been asked by the parties to make findings of fact with respect to the qualified immunity defense, had the authority to make credibility assessments and draw such inferences as it believed appropriate. Its findings of fact, described in Part I.C. above, are amply supported by the trial record. We affirm so much of the judgment as awarded Outlaw damages against Allen.