New police misconduct trial for Occupy Wall Street protester

Occupy Wall Street cases continue to work their way through the courts. In this case, the plaintiff sued the police over assault and battery arising from an Occupy anniversary get-together in 2012. The case went to trial, and plaintiff lost. The Court of Appeals revives her case because the trial court did not properly instruct the jury on the elements of her claim.

The case is Tardif v. City of New York, issued on March 18. I wrote about the disability discrimination portion of the case at this link. Tardif lost the ADA  battle, but she also claims that officers shoved her and caused her head to strike the pavement, causing her to lose consciousness and sustain a concussion. Plaintiff claims this assault was not justified. The police claimed they were trying to prevent the situation from further escalating and they grabbed her and pulled her over to the side to prevent her from running into another officer. This is a classic fact dispute in most police misconduct cases, to be resoled by a jury. That is what happened here, but there will have to be a new trial.

The best way to appeal from an adverse jury verdict is to challenge the jury instructions. The trial court has no discretion to charge the jury properly. Either it's done right or it's done wrong. In contrast, you can't appeal on the basis that the jury improperly weighed the evidence. 

The trial court charged the jury that it "may consider the need for the application of force, the relationship between the need and the amount of force that was used, the extent of any injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline, or maliciously for the very purpose of causing harm." During the deliberations, the jury asked the court to clarify the instructions. The court again told the jury that it should consider, among other things, whether the officer used force "in a good faith effort to maintain or restore discipline, or maliciously for the very purpose of causing harm." 

Under the law, the jury is only supposed to examine the officers' actions through an objective standard, i.e., whether the officer acted reasonably under the circumstances. Cases have held that the officer's subjective intent is not relevant to this analysis. So even if the officer acted maliciously, if a good officer would have used the same amount of force, then there is no excessive force claim. An officer's motives simply do not count. The Court of Appeals (Bianco, Livingston and Parker) says the jury instruction in this case, to the extent it asked the jury to consider whether the officer acted maliciously or in good faith as a means to maintain or restore discipline, was wrong. Since the error was not harmless in that the proper instruction could have yielded a favorable verdict for plaintiff, we got ourselves a new trial.