Excessive force and false arrest verdict is upheld on appeal, but no punitive damages

The Court of Appeals has sustained a police misconduct verdict in which the plaintiff claimed a Syracuse police officer subjected him to excessive force, false arrest, and malicious prosecution. But the Court also held that plaintiff is not entitled to punitive damages for these civil rights violations.

The case is Franco v. Gunsalus, a summary order issued on May 23. I briefed and argued the appeal. Fred Lichtmacher, Esq., tried the case. The case began when Franco showed up to a party in Syracuse just as the crowd was dispersing. The officer claimed that he gave a loud order to disperse and that Franco ignored him, but Franco and his witnesses testified that no such order was given and the officer instead out of frustration over Franco's bad attitude beat him up on the street, even after Franco hit the ground. He was arrested for disorderly conduct, harassment, and resisting arrest, and the charges were ultimately dismissed. The jury found in his favor under Section 1983.

The Court of Appeals affirms the verdict as supported by the weight of the evidence. It opens this discussion by stating, "We have held that a police officer violates a clearly established Fourth Amendment right when he 'use[s] significant force against an arrestee who is no longer resisting and poses no threat to the safety of officers or others.' Moreover, it was well established in our circuit at the time of the altercation 'that the use of entirely gratuitous force is unreasonable and therefore excessive.'" To this end, the verdict is upheld only a few weeks after oral argument as the Court of Appeals (Calabresi, Menashi and Lee) do not find this case especially remarkable.

Plaintiff did ask the trial court to allow the jury to award punitive damages. The trial court said it would not do so and that it would vacate any punitive damages award were he to do so. Trial counsel expressly placed his objection on the record. Franco appealed from that ruling, arguing that excessive force, false arrest, and malicious prosecution can be sufficiently wanton and malicious to support a punitive damages award. The Court of Appeals rejects that argument on the basis that trial counsel waived his objection to the trial court's ruling and that it was not to say "I object" on the record. I have not seen this analysis much over the years, but the Court of Appeals says that under Fed. R. Civ. P. 51, the trial lawyer has to say more than simply "I object" to the rejected jury charge. Under that rule,“A party who objects to ... the failure to give an instruction must do so on the record, stating distinctly the matter objected to and the grounds for the objection.” Without a specific reason to request punitive damages, the Court of Appeals says, counsel's objection was insufficient. In my experience, lawyers usually just say "I object" to a trial court's jury charge, but under this analysis, we have to amplify our objections.

Still, even with the waiver, plaintiff could win the appeal under the plain error doctrine. That poses a higher burden of proof for the plaintiff, who must show the trial court's ruling contravened established law. The Court of Appeals finds there was no plain error. Bear in mind that the trial court in its post-trial ruling under Rule 50(b) summarized the excessive force evidence in particular this way:

at trial, various witnesses testified that Plaintiff was on the side of the road, leaning into his friend's vehicle, when Defendant Gunsalus came up from behind him and began punching Plaintiff and dragging him to the ground. In these versions of the events, Plaintiff did not pose any immediate threat to Defendants or to passersby. As examples, there was no evidence that Plaintiff had a weapon, that he verbally threatened the officers, or that he was confronting others on the street.

That sequence of events would not automatically entitle Franco to a punitive damages charge, the Court of Appeals says, for this reason:

Neither an excessive use of force nor an unreasonable belief about probable cause necessarily entitles a Section 1983 plaintiff to punitive damages. We have long held that the availability of punitive damages requires more than what is required for liability under Section 1983. “To accept [the contrary] proposition would essentially expose a defendant to an award of punitive damages for any conduct not protected by qualified immunity, and would thereby make the availability of punitive damages equal to the availability of compensatory damages. That proposition is contrary to the principles [of our Section 1983 case law].” The district court concluded that Franco had failed to identify evidence of the officers’ subjective awareness of wrongdoing. On this record, we cannot say that its determination was plainly erroneous. At trial, various witnesses testified that Plaintiff was on the side of the road, leaning into his friend's vehicle, when Defendant Gunsalus came up from behind him and began punching Plaintiff and dragging him to the ground. In these versions of the events, Plaintiff did not pose any immediate threat to Defendants or to passersby. As examples, there was no evidence that Plaintiff had a weapon, that he verbally threatened the officers, or that he was confronting others on the street.

Franco v. Gunsalus, No. 516CV634FJSTWD, 2022 WL 93570, at *5 (N.D.N.Y. Jan. 10, 2022)