Here is how qualified immunity works on appeal

Police misconduct cases usually do not lend themselves to summary judgment motions, especially when the plaintiff claims the police subjected her to excessive force. These cases cannot be resolved on paper unless there is something unusual about the case that prevents a jury from ruling for the plaintiff. Or the police can seek summary judgment on qualified immunity grounds, claiming they did not violate clearly established law. If that motion fails, the police can take an immediate appeal, one of the rare instances where a pre-trial appeal is permissible. That's what happened here. This strategy worked for one officer, but not the second officer.

The case is Lennox v. Miller, issued on July 29. After the police charged plaintiff with endangering the welfare of a child following her alleged physical confrontation with some neighborhood teenagers who were hanging around plaintiff's troublesome ex-boyfriend, she claims the police handcuffed her for no reason and subjected her to excessive force. She wanted to pull away from the officer at this time but was unable to do so because he was too strong. In the end, the handcuffs were too tight, and she claims the police pushed her to the ground so hard that she urinated herself and also bashed her head to the ground.

The district court denied summary judgment on qualified immunity grounds. You normally cannot appeal from the denial of summary judgment in federal court. You can do so in state court, which has different appellate rules, which is why the state appellate courts are so backed up that you'll wait over a year for oral argument in the Second Department. But the federal rule has a major exception: the denial of qualified immunity can be appealed right away - if, and only if, the municipal defendant can show that even on the plaintiff's facts, the defendant did not violate clearly established case law as handed down by the Supreme Court and the Second Circuit.

So what happens here: the Court of Appeals (Hall, Lohier and Park) says that the officer who assaulted plaintiff cannot win the appeal because, viewing the facts in her favor, the officer violated clearly established law, which is that police officers cannot subject people to the gratuitous use of force, whether it's with the officers fists, or with a Taser. Second Circuit cases are now holding that all uses of force, even through innovative and novel technologies, like Tasers, are treated like traditional use of force cases. Force is force. So no qualified immunity for the officer whom plaintiff says subjected her to excessive force.

There was a second police officer on the scene who did not intervene to prevent the first officer from violating plaintiff's constitutional rights. The second officer was also denied qualified immunity. On appeal, the Court of Appeals says this officer is entitled to that relief because there is no evidence to suggest that he had any realistic opportunity to intervene but failed to do so.

Bad jury charge in drug case wins defendant a new trial

What can go wrong at a criminal trial? A lot, especially if the jury instructions are incorrect and allow the jury to find the defendant guilty simply because he decided to take the witness stand in his defense. That is what happened here.

The case is United States v. Solano, issued on July 22. Defendant was a truck driver who picked up some cargo on the docks in Brooklyn and delivered it elsewhere in New York City. A surveillance team discovered drugs in the cargo before defendant retrieved it, and they arrested him after he made the delivery. The dispute at trial concerned what happened during the interrogation at the police station. The police claim defendant confessed to knowingly delivering drugs, but defendant denied making any such confession. The police seem to have misplaced or mishandled the paperwork that would have memorialized the confession, and there was also a screw-up with the forms that would have confirmed the police read defendant his Miranda warnings ("you have the right to remain silent"). That makes all of this a close case. The jury convicted defendant of attempted possession of cocaine with intent to distribute, and he was sentenced to 42 months in jail.

The conviction is reversed. The problem was the jury charge, which said a witness who testifies at trial has an interest in the outcome of the case and that interest "creates a motive on the part of the witness to testify falsely." While a criminal defendant obviously has an interest in the outcome of his case, it does not necessarily mean he will lie under oath, especially if he is not guilty. As the Court of Appeals (Kearse, Calabresi and Carney) writes, "an instruction indicating to the jury that that interest gives him a motive to testify falsely is contrary to the presumption of innocence."

Defendant did not object to this charge at trial. It seems the trial court did not show the parties the jury charges before they were read to the jury. That is an unusual maneuver. Usually the parties have some time to review the charges to make intelligent objections. After the above charge was read to the jury, defendant's lawyer still failed to object. That is not necessarily a waiver, if the charge is "plain error," that is, if the charge is so manifestly incorrect that defendant was denied a fair trial no matter you slice it. That is the case here. Since this was a credibility case, the court cannot say with confidence that the bad jury charge did not make a difference. New trial for defendant.

Police search based on generalized description of black male violated Fourth Amendment

Oh man, is this a big win for the defendant. The Court of Appeals rules that the search that produced narcotics was illegal.

The case is United States v. Walker, decided on July 14. It happened in the City of Troy, New York. As defendant Walker and his friend were walking in "a safe area" in the early evening, an officer, Montanino, was looking for a suspect described as follows: "medium to dark skin toned black males" with thin builds, wearing glasses, with facial hair and goatees. Believing these men looked like the guy in the emailed photograph of the suspect, Montanino asked his two subordinates, Conway and Furciniti, to approach the two men to identify them. Walker and friend complied with that request and as the officers ran a background check on them, they found an outstanding arrest warrant for Walker and placed him in handcuffs. Walker's friend was allowed to leave. At the police station, a "search incident to arrest" revealed that Walker was carrying drugs. It turns out that Walker was not the person the police were actually looking for.

While the district court denied the motion to suppress the evidence, the Court of Appeals (Calabresi, Pooler and Carney) reverses and says the search violated the Fourth Amendment. Why? Because the officers lacked reasonable suspicion to even stop Walker in the first instance. While the officer said Walker looked like the man in the photograph, "race, when considered by itself and sometimes even in tandem with other factors, does not generate reasonable suspicion for a stop," and as the Second Circuit held in Dancy v. McGinley, 843 F.3d 93 (2d Cir. 2016) (which I argued), "the description of a suspect as 'thin, black, and male' was too vague to justify a stop of anyone meeting it.'" In addition, "the use of 'black male' and 'medium-to-dark' skin tone captures a wide swath of individuals," and the other traits (glasses, goatees, etc.) are not sufficiently particularized to justify the stop. Nor does it matter that Walker was near a crime scene when this all happened. There was suspicion, but the Fourth Amendment requires reasonable suspicion.

To justify the search, the officers also invoke the "attenuation doctrine," which says the search is legal if the connection between the unconstitutional police conduct and the evidence is too remote or has been interrupted by some intervening circumstance. That narrow defense does not work here because the events -- unlawful stop and subsequent search -- all happened too quickly. And, while Walker was in fact arrested pursuant to a valid warrant (a factor which favors the police in this case), the officers' conduct was "purposeful or flagrant," which tips the scales for Walker, because the explanation for stopping Walker was "woefully short of what the Fourth Amendment requires," and the the officer-in-charge knew right away that Walker was not the person depicted in the emailed photograph.

Joy Reid must defend defamation case arising from sanctuary-state photograph

This defamation case arises from a city council meeting in California about that state's sanctuary-state law, at which the plaintiff, a private citizen, spoke out against the law and a social media activist used a photograph of the plaintiff to make it look like she was yelling racist remarks at her, comparing her to the segregationists in 1957 Little Rock. Cable TV personality Joy Reid posted the manipulated photo online and implied that the plaintiff is a racist. Reid later apologized publicly for the mistake. Plaintiff sues Reid in New York federal court.

The case is La Liberta v. Reid, issued on July 15. First, we have the California anti-SLAPP law, which is short for "strategic lawsuit against public participation," which in California allows the court to dismiss the defamation case if the speech is protected under the First Amendment. New York's SLAPP law does not have this provision. In California, the SLAPP is an affirmative-defense to the lawsuit, authorizing the defendant to file a "motion to strike." The problem for Reid is that this unique procedure under California law is not consistent with the procedure for motions to dismiss in federal cases (Rule 12) or motions for summary judgment (Rule 56).

Rule 12 cannot authorize this procedure because the SLAPP motion to dismiss allows the defendant to win if she can show her success in the case is "probable." Under Rule 12, the standard is whether the plaintiffs likelihood of success is "plausible." In our world, these are significantly different legal standards. It may work in California, but not in federal court, as other Circuits have held in similar cases. Nor can Rule 56 authorize this procedure, as summary judgment is not warranted if the plaintiff identifies a genuine issue of material fact for trial. Under the California SLAPP law, the defamation case is dismissed unless the plaintiff shows it is likely and not merely possible that she will prevail. Again, two different standards. If this case is going to be dismissed, it cannot be pursuant to the defendant-friendly California SLAPP rule.

So what about the defamation case? The district court dismissed the case, holding that plaintiff was a "public figure" and therefore has to prove Reid made her false statements with malice. You can even be a limited purpose public figure if you are voluntarily thrust into a public controversy. That's how Reid argues that plaintiff cannot win. But while plaintiff spoke at multiple city council meetings about the sanctuary state issue, and even had her photo in the newspaper, "that is not nearly enough" to increase her burden to win this case, the Court of Appeals (Jacobs, Kearse and Cabranes) rules. The newspaper photo did not identify plaintiff, and speaking at only eight meetings around the state does not make her a regular media presence. Otherwise, everyday citizen speech would be chilled for fear of lawsuits like this. While plaintiff did become more of a media presence to defend her reputation after she was called a racist, the Court of Appeals will not use that to retroactively turn her into a limited public figure.

Finally, the district court dismissed the defamation case, ruling that Reid's comments were protected "opinion" under the First Amendment. Not so, says the Court of Appeals. "Accusations of concrete, wrongful conduct are actionable while general statements charging a person with being racist, unfair, or unjust are not." That's based on California law. The Court of Appeals says that the photo that Reid had posted (which someone else created), comparing plaintiff with the white woman in the 1957 Little Rock photograph yelling at the black schoolgirl, could be understood to accuse plaintiff of engaging in misconduct, which can be proven true or false, unlike nonactionable opinion, such as if Reid had called her a racist.

LGBTQ Workplace Protections: Analyzing the Supreme Court’s Landmark Ruling

In this video, I discuss the Supreme Court's recent decision, Bostock v. Clayton County, issued on June 15. Bostock is one of three cases consolidated by the Supreme Court on the issue of whether sexual orientation and transgender discrimination is a form of sex discrimination under Title VII of the Civil Rights Act of 1964. By a 6-3 vote, the Court answered that question in the affirmative, changing the workplace legal environment for a population that, until only a few years ago, had no rights under Title VII.



I was on the legal team in Zarda v. Altitude Express, along with Gregory Antollino (lead counsel), the American Civil Liberties Union, and Pamela Karlan, Esq., who argued the appeal in the Supreme Court on behalf of Bostock and Zarda.

In this discussion, I talk about the history of gay rights in the Supreme Court, how these cases reached the Court, my personal observations from working on the Zarda portion of the case, and what the Court did in ruling that this form of discrimination is a form of sex discrimination under Title VII. Question and answer session follows my discussion.



I gave this talk on July 13 for the Elting Memorial Library in New Paltz, N.Y., where I am on the Board of Trustees.

Inmate's speech rights were violated, but qualified immunity ends the case

This is an interesting little case. The inmate was punished for writing a letter to his sister that the prison thought was a sexual threat against a female correction officer. The Court of Appeals says the inmate's rights were violated and the letter did not demonstrate any such threat. But the Court of Appeals also rules the officers get qualified immunity because they did not violate clearly-established law in punishing plaintiff.

The case is Bacon v. Langford, issued on June 8. Plaintiff wrote a letter to his sister from prison stating that he "wanted" a woman. In particular, he said there was a woman at the prison who "is very beautiful and healthy. I do want her but want a few other women as well." Believing that plaintiff was talking about a particular female correction officer, prison officials charged him with making sexual threats or proposals to the officer, even if he did not direct these statements toward the officer herself. At the disciplinary hearing, plaintiff said he and his sister often joked around this way. But he was sent to the special housing unit for 30 days and denied phone and commissary privileges. The regional director reversed the disciplinary sanctions and expunged them from his record, probably one of those rare moments when a higher authority reverses a disciplinary finding against an inmate.

Hence, this lawsuit. The Court of Appeals (Katzmann, Calabresi and Lohier) finds that, while inmates do not enjoy the free speech rights that everyone else does, they still have some rights. Nothing about the letter was profane, threatening or abusive. Rather, "it contained a mere expression of attraction communicated by a person confined in an institutionalized setting." In addition, plaintiff "did not declare his desire to the correctional officer herself or to anyone in the prison facility," expressing only to his sister in a private letter. Even deferring to the judgment exercised by prison officials, this was not a threat. That means it's protected speech under the First Amendment.

This does not mean the plaintiff can win the case. Since this is a Section 1983 case, he has to show the officials violated clearly established case law in disciplining him for the letter. This is a hallmark of qualified immunity. You need a case almost directly on point to show that the defendants were on constructive notice that they were violating the plaintiff's rights. Novel cases often fail under QI for this reason. And this is such a novel case, the Court of Appeals holds, because "the issue is whether, at the time Bacon sent a letter to a third party expressing his desire for a woman later identified as a female correctional officer, precedent from the Supreme Court or this court put prison officials on notice that they could not punish him for his statements in that correspondence. It did not." It is not enough to ask whether plaintiff's free speech rights were violated. He had to show a case like his has already been decided in an inmate's favor. There is no such case. While the next inmate-letter case might prevail in the plaintiff's favor because of Bacon's case, Bacon himself cannot win.

Inmate beating case will to the jury

This inmate wins his appeal in the Second Circuit, convincing the Court of Appeals that he has an excessive force claim against his jailers.

The case is Randolph v. Griffin, a summary order issued on June 2. Plaintiff says defendants came to his cell, handcuffed him, directed him to turn around and then punched and kicked him in the face and about the body. And they also attacked him with a baton. Then the officers took him to the showers where they punched him in the head. Defendants claim, on contrast, that plaintiff had aggressively raised his hands toward them and tried to hit one of them, requiring then to use some force (body holds) to prevent him from attacking them.

Since we have such contrasting accounts of how plaintiff suffered his injuries, how did a case like this get dismissed on summary judgment? It looks like the trial court said plaintiff's testimony cannot be credited because there was no corroboration. But that argument cannot work. Under settled precedent, like Fincher v. Depository Tr. & Clearing Corp., 604 F.3d 712 (2d Cir. 2010), even uncorroborated, sworn testimony is enough to bring your case to the jury, unless of course the testimony is so contradictory and confused that no jury in its right mind would credit any of it. But such cases are rare. Since plaintiff's testimony in this dispute was always consistent and detailed, he can bring his case to trial.

The trial court also violated a cardinal rule of summary judgment practice: crediting the defendants' accounts over those of the plaintiff. It is not the district court's job to weigh witness credibility. The Second Circuit cites Jeffries v. City of New York, 426 F.3d 549 (2d Cir. 2005), for this proposition, but there are zillions of cases that stand for this proposition. While the district court said that "the record evidence of Randolph's injuries is more consistent with Defendants' version," that was error. As the Court of Appeals said in Fincher, "he said, she said" cases cannot be resolved on a motion for summary judgment.

Finally, the district court got it wrong in holding that plaintiff's version of events, being struck with a baton and assaulted while in handcuffs, was justified as a matter of law. Rather, the Court of Appeals says, the jury may find this was sadistic or malicious, the standard guiding excessive force claims under the Eighth Amendment. The Court of Appeals notes that it has reversed the grant of summary judgment in prisoner excessive force cases even where "the plaintiff's evidence of injury was slight and the proof of excessive force was weak." The Court cites Harris v. Miller, 818 F.3d 49 (2d Cir. 2016), for that proposition.

Supreme Court holds Catholic school teachers cannot sue for disability or age discrimination

The Supreme Court has ruled that teachers who work at Catholic schools cannot sue for employment discrimination under Title VII and other civil rights laws. This case expands the "ministerial exception" that the Court first recognized in 2012.

The case is Our Lady of Guadalupe School v. Morrissey-Berru, issued on July 8. This is a two-plaintiff case involving separate lawsuits that the Court consolidated for purposes of this appeal. In 2012, the Court ruled in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171 (2012), that the First Amendment (which protects the free exercise of religion) prohibits a court from entertaining an employment discrimination claim when the plaintiff takes on certain responsibilities that will advance the religious agenda of the employer. There is no rigid formula for determining whether the plaintiff falls within the ministerial exception, and thus far the only cases the Supreme Court has resolved in this area involve plaintiff-teachers responsible for imparting certain religious principles to their students.

The idea behind the ministerial exception is that "The First Amendment protects the right of religious institutions 'to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.'” The 7-2 majority outlines what appears to be a bright-line rule in teacher discrimination cases:

The religious education and formation of students is the very reason for the existence of most private religious schools, and therefore the selection and supervision of the teachers upon whom the schools rely to do this work lie at the core of their mission. Judicial review of the way in which religious schools discharge those responsibilities would undermine the independence of religious institutions in a way that the First Amendment does not tolerate.

Writing for the majority, Justice Alito states, "This does not mean that religious institutions enjoy a general immunity from secular laws, but it does protect their autonomy with respect to internal management decisions that are essential to the institution’s central mission. And a component of this autonomy is the selection of the individuals who play certain key roles." It looks like anyone who teaches at a religious school cannot sue for employment discrimination, particularly if they have to impart religious doctrine to the students. Plaintiffs lose this case because they were required to teach, among other things, religious doctrine. "When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teacher threatens the school’s independence in a way that the First Amendment does not allow."

Justices Ginsburg and Sotomayor dissent. Justice Sotomayor accuses the majority of improperly expanding the ministerial exception since the teachers in this case primarily taught secular subjects, lacked substantial religious titles and training, and were not even required to be Catholic. As the dissenters see it, the majority reduces the inquiry to a simple test: "whether a church thinks its employees play an important religious role." They call that a "simplistic approach" that "has no basis in law and strips thousands of schoolteachers of their legal protections."

The breadth of the ministerial exception means that even though these two plaintiffs sued over disability discrimination and age discrimination, and the employers did not assert any religious-based defense to the lawsuits, the plaintiff still cannot sue. So the ministerial exception does not simply ask whether the courts have to delve into religious doctrine or principles in determining whether the plaintiff was properly terminated (or denied a position). As Justice Sotomayor notes,

When it applies, the exception is extraordinarily potent: It gives an employer free rein to discriminate because of race, sex, pregnancy, age, disability, or other traits protected by law when selecting or firing their “ministers,”even when the discrimination is wholly unrelated to the employer’s religious beliefs or practices. That is, an employer need not cite or possess a religious reason at all; the ministerial exception even condones animus.

Huge damages award is upheld in wage and hour claim

Wage and hour claims brought under the Fair Labor Standards Act and the New York Labor Law are quite common in New York City. These claims usually allege the plaintiff was denied overtime or even portions of his regular paycheck. Cases reaching the Second Circuit often do not involve a lot of money, especially when it's a single-plaintiff claim. This case is not one of them. In this case, the plaintiff won more than $800,000 because the jury determined he was denied overtime over the course of five years.

The case is Elghourab v. Vista JFK, a summary order issued on June 30. Plaintiff worked as a chef for the defendant, a hotel near Idlewild Airport in Queens. That huge jury award was actually more than $400,000 in lost wages, which is doubled when the jury finds the employer willfully denied the plaintiff his overtime. Plus he got almost $200,000 in pre-judgment interest. Hence the appeal. Defendants don't like paying out damages awards like this.

The main issue on appeal is that defendant claims plaintiff was not even entitled to overtime because he fell under the "executive exception" to the FLSA. The executive exception is what it sounds like: as defined under the statute, executives are exempt while rank-and-file employees are not exempt and can recover overtime pay. The problem for the employer is that the jury decides whether the defendant falls within the exemption. We call this a mixed question of fact and law.

The Court of Appeals (Winter, Calabresi and Chin) does not outline the relevant factors for this exemption, but it does say the jury was able to weigh the evidence in light of these factors and found in plaintiff's favor. That's enough for the Court of Appeals, which cannot second-guess how the jury sees the evidence unless the jury totally blows it and something absolutely must be done to correct the injustice. This was not one of those cases.

Radon gas exposure in jail may violate Eighth Amendment

The Court of Appeals has ruled that class of prisoners in Connecticut may sue state officials for exposing them to radon gas, a carcinogen, and were deliberately indifferent to their safety.

The case is Vega v. Cruz, issued on June 29. Plaintiffs allege the prison, Garner Correctional Facility, was built in 1988-1992 on land with high radon levels without installing radon mitigation systems. This exposed plaintiffs to this dangerous gas, which can enter buildings through slight cracks in the foundation. Plaintiffs also claim the ventilation systems at the jail were always inadequate, and well water tests in 1996 demonstrated high levels of radon. Plaintiffs further allege that inmates were not properly tested for radon gas, and that their mitigation efforts later on were too little, too late. The district court declined to dismiss the lawsuit, ruling the defendants were not entitled to qualified immunity at this early stage of the case, as we must assume for QI purposes that all the facts in the complaint are the God's honest truth before we ask whether plaintiffs allege a violation of clearly-established law.

The Court of Appeals (Raggi, Cabranes and Korman [D.J.]) says the district court got it right on qualified immunity. The standard guiding prisoners' rights cases is "deliberate indifference to serious medical needs" under the Eighth Amendment. Did defendants violate clearly-established law in ignoring the radon threat? The Second Circuit holds that plaintiffs survive that (often difficult) hurdle because in 1993, the Supreme Court issued Helling v. McKinney, which held that prison officials can violate the Eighth Amendment in exposing inmates to health risks such as cigarette smoke. Under that rule, the district court in this case says, and the Court of Appeals agrees, that Helling means that prison officials may be sued for excessive exposure to radon, a toxic environmental substance.

Defendants claimed on appeal that Helling is distinguishable because that case involved cigarettes and this case involves radon. Not a frivolous argument, as courts are often receptive to qualified immunity defenses, which require the plaintiff to show that his case is substantially identical to a prior court ruling such that the defendants were on notice that they were in danger of violating constitutional rights. But the Court of Appeals thinks Helling is close enough to put prison officials on notice that they cannot knowingly ignore the damages posed by exposing inmates to radon gas. Cigarettes, radon, it's all poison. While no binding decision addresses this precise issue of radon gas exposure, the Supreme Court has said that even "novel" factual circumstances can violate clearly-established law.

Our current political environment has given rise to criticism of qualified immunity, which police officers often invoke successfully to avoid liability in misconduct cases. But this immunity applies to all government officials. Those of us who practice Section 1983 law know that QI is often the death-knell for these civil rights cases, the Supreme Court has not rejected a qualified immunity argument in years. But did you know this is the second case in several weeks to deny QI to prison officials? In June 2020, the Second Circuit held in McCray v. Lee, 2020 WL 3273346 (2d Cir. 2020), that prison officials could not invoke QI in denying the inmate an opportunity to exercise outside when no one at the jail felt like clearing the recreation areas of the ice and snow.

Court upholds false arrest/battery verdict

Post-trial appeals are interesting because the losing party still thinks he can somehow win the case. While he lost at trial despite his charismatic trial skills, he now thinks he can win the appeal on the basis of his intellectual chops. Here's the thing: once you lost at trial, even on appeal, the score is 7-2 in the ninth inning.

The case is Theodat v. City of New York, a summary order issued on July 1. This is a false arrest claim. The plaintiff won at trial, convincing the jury that the police had no probable cause to arrest him for a marijuana offense. He also won his battery claim against the officer. While the officer testified that he saw plaintiff smoke a joint and then drop it to the ground on a street corner, plaintiff testified that the police approached him on the street for no reason, twisted his arm behind his back, searched and arrested him and then charged him with smoking marijuana. Plaintiff says he was not in possession of any drugs that night. At the time, 2015, smoking even small amounts of marijuana in public was an arrestable offense; owing to racial disparities in marijuana arrests, that policy changed in 2018, when the Brooklyn District Attorney said he would no longer prosecute low-level marijuana offenses. That was too late for plaintiff. He got arrested.

The jury awarded plaintiff $100,000 in compensatory damages, and $200,000 in punitive damages, for false arrest against the main defendant, Crooms, who was also hit with $1,000 in compensatories and $7,500 in punitives on the battery. Another officer, McDonald, was found liable for failure to intervene to stop the false arrest, ordered to pay $150,000 in punitives.

On appeal, the officers argue that the trial court did not properly charge the jury. This is the best way to challenge an adverse verdict. You cannot really re-argue the facts on appeal. A jury instruction appeal raises a legal issue over which the trial court has no discretion. But there is such a thing as harmless error. Defendants argue that the jury should have been told that the arrest would have been justified if probable cause existed to make any arrest. It is true that probable cause does exist so long any objective basis exists to arrest someone, even if the plaintiff was charged with something else over which the police lacked probable cause. Defendants invoke that principle in claiming that, even there was no reason to arrest plaintiff for smoking marijuana in public, they had probable cause to arrest him for possessing marijuana. The Court of Appeals (Parker, Livingston and Park) disagrees. Any error by the trial court was harmless. This is because "the evidence [at trial] supporting probable cause for possession was . . . essentially identical to the evidence supporting a claim of probable cause as to smoking marijuana in pubic." No harm, no foul.

You might be wondering what happened to the damages awards. Losing defendants often challenge the amount of the verdict on appeal, but first they must do so through the trial court. That's what happened here. Judge Block ruled that the jury had a proper basis to award plaintiff $100,000 for pain and suffering arising from the false arrest and battery. Other court rulings have upheld awards in the amount of $98,500 to $252,000 in 2019 dollars for the loss of liberty from a false arrest, ranging from five to eight hours. Plaintiff was in custody for 2.5 hours, during which time an officer twisted his arm, causing serious pain. But Judge Block reduced the punitive damages awards to $15,000 and $5,000, down from $200,000 and $150,000. Other cases, like King v. Macri, 993 F.2d 294 (2d Cir. 1993), and DiSorbo v. Hoy, 343 F.3d 172 (2d Cir. 2003), awarded money in this high range, but they involved more serious physical injuries. Milfort v. Prevete, 3 F. Supp. 3d 14 (E.D.N.Y. 2014), awarded $5,500 in 2019 dollars for less serious injuries. The trial court said this case is more like Milfort, hence the sharp reduction in punitive damages.