For appellate buffs only (and police misconduct buffs also)

This is a huge case that took more than 18 months to decide, and it addresses a number of important issues relating to police misconduct litigation, but for now I will address a procedural issue that only an appellate practitioner can love, though trial lawyers should take note, because it reminds us that trial, and not the Court of Appeals, is usually where the action is.

The case is Ferreira v. City of Binghamton, issued on September. The plaintiff was an unarmed man who was shot in the stomach by the police when they entered the house on a no-knock warrant. (The police were actually looking for someone else, and plaintiff happened to be in the house when the raid took place). The jury rendered a verdict against the City, but it also found in the officer's favor, ruling he was not liable. That verdict threads the needle in ways that most clients will probably never understand, I am sure. But for now, we will talk about the verdict against the officer, Miller. At trial, Miller and plaintiff gave different accounts of what happened when the police entered the house upon getting a tip that the person they were looking for in the house had robbed some drug dealers. Miller said plaintiff approached him, ignoring police commands to get down, and he thought plaintiff had a gun. Plaintiff testified that he raised his arms above his head and the police shot him anyway.

The jury credited Miller's testimony on this part of the claim. But it found for plaintiff on his claim against the City, awarding him $3 million. Post-trial, plaintiff moved for a new trial, claiming the verdict in Miller's favor was against the weight of the evidence. These motions are very difficult to win; we let the juries decide what happened at trial, and trial judges really don't want a second trial on the same issue. As the Court of Appeals summarized the trial court's reasoning in denying the motion:

the court reasoned that Miller entered the residence with reason to believe he would encounter a dangerous person, and the jury could have reasonably accepted Miller’s testimony that he believed as he entered that he was in fact menaced by an armed and dangerous person. The SWAT team had been informed, based on the tip from the informant, that Pride may have had a weapon. A jury could reasonably credit Miller’s testimony that he saw Ferreira advancing on him with a device in his hand that appeared to be a gun, and discredit Ferreira’s testimony to the contrary. Although Miller’s belief that he had encountered a dangerous person appears to have been mistaken, the court ruled that, given the dangerous circumstances, the mistake and resultant shooting do not “indicate that he violated the standard 4 of care in a manner in which no reasonable juror could fail to assign him liability.” The court further concluded that even if Miller was negligent, discretionary immunity would protect him from liability because his actions did not violate acceptable police practice and were therefore protected by 8 discretionary immunity.

Plaintiff appeals from that ruling, but the Court of Appeals (Leval, Livingston and Pooler) holds that the Court has no jurisdiction to even hear the appeal. "The denial of a new trial on the ground that the verdict was not against the weight of the evidence is not subject to appellate review." Case authority for that proposition is Stonewall Ins. Co. v. Asbestos Claims Mgt. Corp., 73 F.3d 1178 (2d Cir. 1995). While you can appeal if the trial judge rejects a jury's verdict as against the weight of the evidence, you cannot do so "in the far more frequent circumstance where a trial judge denies a 'weight of the evidence' challenge and leaves in place a jury verdict supported by legally sufficient evidence." While plaintiff tried to get around this by arguing that the verdict was a "miscarriage of justice," that is another way of saying the verdict was against the weight of the evidence. On issues like this, the place to win the case is trial, not the Court of Appeals.