Friday, October 30, 2020

Second Circuit sustains Title VII sexual harassment verdict involving pornography at the County jail

The Court of Appeals has sustained a sexual harassment verdict under Title VII where a female correction officer was exposed to sexist comments and banter, and she observed fellow male officers reading and carrying around pornographic magazines in the County jail. The Court of Appeals also reinstates the plaintiff's Section 1983 equal protection claim against the County; the district court had vacated that verdict post trial.

The case is Legg v. County of Ulster, issued on October 29. I argued the appeal for plaintiff. Joe Ranni, Esq., and Brendan Klaproth, Esq., tried the case . . . in 2014. This case first reached the Court of Appeals in 2016, which remanded the case to the district court for procedural reasons that I will cover in another blog post. This case returned to the Second Circuit in September 2018, which means the appeal was pending for more than two years. All I remember about this argument was that it happened on the day that the Brett Kavanaugh rape-allegation hearing took place on national TV.

The sexual harassment plaintiff is Watson (Legg had an unrelated pregnancy discrimination claim). Watson and other female plaintiffs testified about the pornography at the jail, including magazines, sexist screensavers, and sexually-explicit music being played on iPods. What made Watson's case different from the other female plaintiffs (who did not prevail on their sexual harassment cases at trial) was that she had to work with a creepy male co-worker, Divorl, who breathed down her neck continuously and made lurid comments about a massage chair in the workplace. Since Watson was the sole winner at trial on the sexual harassment claim, the County argued on appeal that any harassment that Watson and the losing plaintiffs had endured together cannot count toward Watson's verdict because the jury presumably rejected that evidence, primarily relating to the pornographic magazines. The district court rejected that argument on the post-trial motion, and the Court of Appeals (Carney, Hall and Lynch) rejects it, as well, noting that "a court's task on a Rule 50 motion 'is not to examine different aspects of a jury's verdict to determine whether they can be logically reconciled with one another.'" And, apart from the shared testimony about the pornography, Watson's testimony was different from the other co-plaintiffs because only she had the creepy coworker. In all, the Court of Appeals holds, the evidence was enough to show the sexual harassment was severe or pervasive to create a hostile work environment.

Under Title VII, the plaintiff must impute the harassment to management. Watson did that in this case, the Court of Appeals holds, because the harassment was pervasive "over a prolonged period of time" and supervisors were openly reading pornographic magazines and using the offensive screensavers. And, the Court holds, the jury was able to find that the County had mishandled the creepy coworker episode by ignoring Watson's complaint about it in 2005 and then, in 2007, when Watson complained again, supervisors called Watson and Divorl into an intimidating meeting and put her on the spot in his presence, "giving her a stark choice between having Divorl fired or waiving her right to proceed on a formal complaint" against him. The jury could find the County failed to respond adequately to this complaint.  

Watson also prevailed at trial on her Section 1983 claim under the Equal Protection Clause, drawing largely from the same evidence as the Title VII claim. But while the district court sustained the Title VII verdict post-trial, it vacated the Section 1983 claim, reasoning that Watson failed to show, as required, that the hostile work environment was pursuant to official County "policy" as that word is defined in Section 1983 jurisprudence. The Second Circuit reinstates the Section 1983 claim, ruling that the district court should have recognized that the harassment was sufficiently widespread that the commanding officers knew about it but did nothing to stop it. The Court reasoned,

The jury heard testimony from three plaintiffs painting a picture of a pervasively sexualized atmosphere obviously inhospitable to female employees, where pornographic magazines circulated freely and openly between male corrections officers; officers posted vulgar screensavers on their work computers; and aggressively sexual comments in the workplace were commonplace and went unconfronted by supervisors. We have repeatedly held that the presence of pornography in a workplace can constitute a hostile work environment. . . . A reasonable jury could conclude that those conditions that were undisputedly acquiesced in by the County created a workplace that was “permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”
As for damages, the jury awarded Watson $200,000 on the Title VII claim and $200,000 on the Section 1983 claim. The district court reduced the Title VII award to $75,000. Since the Section 1983 was vacated in its entirety, the $200,000 award went out the window as well. That claim is remanded to the district court to rule on the propriety of the $200,000 verdict under Section 1983.

Wednesday, October 28, 2020

A few racist comments are not enough for a jury trial on Title VII discrimination claim

The plaintiff does not have a discrimination case under Title VII simply because she was exposed to a few racist comments. That's the holding in this ruling from the Second Circuit, demonstrating the evidentiary hurdles facing these claims.

The case is Langlois v. Hartford Board of Education, a summary order issued on October 27. Plaintiff alleges disparate treatment and hostile work environment on account of race. The Second Circuit (Livingston, Chin and Engelmayer [D.J.]) assumes plaintiff made out a prima facie case of discrimination and proceeds to the question of whether the employer's reason for plaintiff's adverse treatment was a pretext for discrimination. Plaintiff identifies two racist comments allegedly made by the school principal: (1) "students should have teachers that look like them," and (2) "white teachers could not, are not competent to teach our students." Plaintiff is white. The first comment was made at a teacher's meeting. The second statement was made at an unspecified meeting. 

These comments can win the case in certain circumstances. But not this case, the Second Circuit holds, because they are "stray remarks," though the Court agrees these remarks are "troubling." This being a summary affirmance, Court does not provide the context for these comments, except it notes that an outside consultant and not the principal was responsible for providing the performance reviews that precipitated plaintiff's departure from the school. My guess is that, since the principal was not responsible for the reviews, the racist comments attributed to the principal did not evidentiary value.

Plaintiff also has a hostile work environment claim. To win such a claim, you have to show the racist comments or race-related adverse actions were severe or pervasive. The Court says plaintiff cannot prove her claim.

Indeed, the bulk of the conduct she complains of is reasonably expected in the school working environment: late-night emails about work-related matters, evaluations and follow-up meetings concerning work performance, criticism related to classroom management  and teaching, occasional rude interactions with  bosses, and placement on a performance support plan after subpar evaluations. Second, Langlois has not demonstrated that, taken together, her allegations amount to a continuous or concerted series of incidents establishing a hostile work environment. The few isolated comments allegedly made by the school principal, mentioned previously, do not meet  this  threshold.

Tuesday, October 27, 2020

Trial court sustains $650,000 judgment in favor of excessive force inmate

This inmate claimed that four correction officers at a state prison in upstate New York beat him up for no good reason. The case went to trial after the district court appointed an attorney to serve as his pro bono counsel. Most of these cases lose at trial (who will believe the inmate over correction officers?) But plaintiff won his case, winning more than $600,000 in compensatory and punitive damages. The district court last week sustained the verdict and the damages award.

The case is Anderson v. Sgt. Osborne, 17 CV 539 (VB), 2020 WL 6151249 (S.D.N.Y. Oct. 20, 2020). This case went to trial in February 2020, right before the pandemic shut everything down. Michael Diederich, Esq., tried the case. I assisted in sustaining the verdict in repelling the state's post-trial motion for judgment as a matter of law.

You have two diametrically-opposing stories presented to the jury. The CO's said plaintiff was acting suspiciously in a prison yard when they pat-frisked him and found contraband in the form of a pain killer in his pocket. The CO's said plaintiff became combative when they questioned him about the pills, and that plaintiff had assaulted them. Plaintiff, in contrast, said he was lured out of his cell by a CO and questioned about information he had provided to investigators about sexual harassment at the jail, and that when he declined to discuss the matter, the CO's struck him about the body, a beating that lasted several minutes. Plaintiff said he could not have been wandering around the prison yard because he was on a recreation restriction and not allowed to go outside with the regular prison population. At trial, plaintiff had no corroborating witnesses who testified on his behalf. The jury believed him, however, and apparently disbelieved the CO's testimony that plaintiff had struck them and was walking around the prison yard acting suspiciously with unauthorized pills.

When the plaintiff wins a trial, the losing side often files a motion under Rules 50 and 59 for judgment as a matter of law and, in the alternative, a new trial, and reduced damages at a minimum. Judge Briccetti denied that motion, ruling the jury had an evidentiary basis to rule for the plaintiff and that he had suffered serious injuries, as reflected in his medical records, even if he did not break any bones. The $75,000 in pain and suffering damages is sustained. So is the $575,000 in punitive damages allocated among the four CO defendants. As the trial court concluded, "the evidence credited by the jury demonstrates the extreme reprehensibility of defendants' conduct."

Wednesday, October 21, 2020

Inmate wins ADA appeal in 2d Circuit because jail did not timely resolve his internal grievance

It occurs to me that inmates win their appeals in the Second Circuit more frequently than you might expect. This county jail inmate wins his appeal that alleges he was denied appropriate wheelchair accommodations. He lost in the district court over his alleged failure to file a proper grievance at the jail. The Court of Appeals reinstates the case.

The case is Dickinson v. York, summary order issued on October 5. Plaintiff is a paraplegic who says the wheelchair denials violated the Americans with Disabilities Act and the Rehabilitation Act, the two primary disability rights statutes in the federal system. Under the Prison Litigation Reform Act, inmates have to file internal grievances with the jail before they can file suit in court. This means they also have to exhaust those internal grievance remedies. But what happens when the jail does not resolve the grievance under the deadlines imposed by the state regulations?

The facility is mandated to resolve the grievance and all internal appeals by a certain date. That did not happen here, so plaintiff filed his lawsuit without technically exhausting his administrative remedies. On the same day that the Court of Appeals decided this appeal, it issued United States v. Hayes, which said for the first time that the inmate can file suit if the jail takes too long to resolve the grievance, in violation of the regulations. That panel (Livingston, Nardini and Sullivan) decides this case as well. Following the holding in Hayes, the Court of Appeals rules in Dickinson's favor. And that, my friends, is how the appellate process works. Plaintiff A wins one case, and Plaintiff B uses that win for his own case.

Thursday, October 15, 2020

Inmate wins retaliation and Eighth Amendment pat-frisk claim against his jailers

This inmate claims that after the objected to sexual abuse in the course of a pat-frisk, he suffered retaliation in the form of solitary confinement as well as a vulgar threat from a correction officer who was present when plaintiff complained about the pat-frisk. But plaintiff only stayed in keeplock for one day. Other prison officials and employees told plaintiff to file further grievances or he would wind up back in the slammer. The retaliation continued when CO's beat up plaintiff, causing him to lose consciousness. He sues under the First Amendment, claiming retaliation for redressing his grievances. 

The case is Hayes v. Dahlke, issued on October 5. Inmates have the First Amendment right to pursue internal grievances over their mistreatment, and any retaliation is actionable against the offending officers if their response would deter a reasonable inmate from filing another grievance. We call that an "adverse action." 

We have a few retaliation claims here. First, plaintiff says he suffered an adverse action when a CO filed a false misbehavior report against him in retaliation for his grievance. The state says the one-day confinement is not enough for an adverse action and that the offending officer did not know that plaintiff had filed a grievance, but the Court of Appeals (Livingston, Sullivan and Nardini) says the jury should resolve these issues. On the adverse action issue, the record is too fuzzy to say with clarity exactly how long plaintiff would have remained in keeplock, as he was also punished for additional misbehavior. The point is that ambiguities are for the jury, not a court to resolve on a summary judgment motion. While the state further argued that there was no connection between the grievance and the adverse action because of the one-month lapse between the two events, that time period is enough to win the case at trial and, besides, plaintiff says the continuous and "sexually-charged verbal harassment throughout the time between the initial grievance and the misbehavior report" further supports plaintiff's claim that the grievance resulted in the adverse action. The moral of the story, the Court of Appeals says, is that "sending a prisoner to keeplock for some indeterminate amount of time could be enough to chill speech of a prisoner of ordinary firmness," especially in light of the other threats that were directed toward plaintiff.

Another claim involves another CO's verbal threats against plaintiff that "maybe all of this would go away" if he stopped filing grievances, and the CO's refusal to file plaintiff's grievance against the jail for a month. These kinds of threats are not sufficiently adverse under the First Amendment to allow plaintiff to proceed with his retaliation claim, even though, as the Court says, these were "implicit threats." But the threats were not accompanied with concrete action. The one-month delay is not enough for plaintiff, who, after all, is an inmate who must tolerate inconveniences that the rest of us do not have to tolerate. 

We also have an Eighth Amendment claim against defendant Dahlke, who, according to plaintiff, sexually abused him during a pat frisk. The district court said this was not enough for a constitutional claim, but the Court of Appeals disagrees, holding that while jails are allowed to conduct pat frisks to ensure security at the jail, "the routine nature of these pat frisks does not shield an officer from liability" if the officer abuses his authority to "gratify his sexual desire" or "humiliate" the inmate. While the trial court said in dismissing this claim that the officer did not penetrate plaintiff's body or fondle his genitals, plaintiff said the pat-frisk was unlike anything he had experienced in his 13-years in the prison system, and that it lasted five to eight minutes, longer than usual. The parties disagree about the invasive nature of this frisk, but such a "swearing match" is for the jury, not the court on a summary judgment motion.

Wednesday, October 14, 2020

This one goes to the inmates

The Court of Appeals issues this ruling to clarify one of the many issues left open when Congress passed the Prison Litigation Reform Act in the mid-1990s, intended to limit prisoner litigation by requiring them to file internal grievances with prison authorities before they can file suit in federal court. The Court says that while inmates must exhaust this administrative remedy, they do not have to wait for the jailers to take their sweet time in resolving the grievances before they can file suit.

The case is Hayes v. Dahlke, issued on October 5. Plaintiff says he was sexually molested during a pat frisk in jail. He grieved this offense under state regulations that require the internal grievance people to rule on the grievance within 18 days of their receipt of the grievance. If the jail denies the grievance, the inmate may file an internal appeal, which may ultimately land on the desk of the Central Office Review Committee (CORC), which has 30 days to issue a final ruling. What happens when the CORC does not issue a final ruling, making plaintiff wait? Can the inmate just file suit in federal court instead? 

The Second Circuit (Sullivan, Livingston and Nardini) notes this is an issue of first impression: "whether an inmate must wait for a response from prison officials to exhaust administrative remedies." The state regulations require that prison officials resolve the grievance appeal within 30 days. As the Court of Appeals notes, there are "no qualifications" to this requirement. While the state argues this deadline is only "aspirational" and not mandatory, the Second Circuit is not buying this argument. Nor was plaintiff required to file an Article 78 petition to compel the CORC to consider his appeal, and no cases support such a proposition. 

But here is the kicker for plaintiff. He did not actually file this case after the 30-day deadline had expired. He filed this case only 26 days after he filed the grievance appeal. Plaintiff did not actually exhaust the 30-day period. So the claim arising from that grievance is dismissed as a matter of law. So, while plaintiff loses the appeal on this issue, he wins this issue for other inmates who are made to wait interminably for the resolution of their grievances.

Tuesday, October 13, 2020

Plaintiff's new testimony about discriminatory motive cannot prevent summary judgment for the employer

The plaintiff says she was denied a promotion to Executive Director of the Nassau County Human Rights Commission because of her gender. Her evidence in support of this claim is two-fold: first, she testified in deposition that the Commission Chair, Syed, told her, "I want a man for the position." Plaintiff also says she was better qualified than the selectee. Despite this evidence, she lost the case on summary judgment, and she loses the appeal.

The case is Rodriguez v. County of Nassau, a summary order issued on October 8. How can plaintiff lose the case on summary judgment with Syed's admission that he wanted a man for the job? Here is what happened. In her first deposition in June 2017, plaintiff was asked if Syed said "anything about your gender?" Plaintiff did not testify that he said he wanted a man for the job. Instead, she testified, Syed did not acknowledge her in the past, implying that he was disrespectful to plaintiff because she is a woman. At her second deposition in January 2018, plaintiff testified that Syed told her he want a man for the position. Her affidavit for the summary judgment motion contains the same admission.

A line of cases in the Second Circuit over last last few years says that plaintiffs cannot avoid summary judgment with testimony that contradicts prior accounts during the case, such as during EEOC charges. The most recent published case on this issue is Bentley v. AutoZoners, LLC, 935 F.3d 76 (2d Cir. 2019). I have not seen yet seen a case where the plaintiff's testimony had this kind of discrepancy in the course of two separate depositions, but the Court of Appeals says that plaintiff had the chance to testify about Syed's admission during the first deposition but failed to do so, and that she offers no plausible reason why the second deposition produced this testimony, which under normal circumstances would send this case to a jury and deny the employer's motion for summary judgment motion.

The Court of Appeals (Walker, Leval and Bianco) notes that "we have repeatedly ruled that . . .  a plaintiff who, previously in the litigation, has denied an essential fact cannot resuscitate that fact in defending against summary judgment by giving new testimony that asserts the previously denied fact." The Court of Appeals applies that rule in this case. Since plaintiff has not offered any other testimony to support her claim that she was denied the promotion because of her gender, summary judgment is affirmed and the case is over. While plaintiff testified that she was better qualified than the man who was hired for the position, the Court says that testimony was speculative and not enough to show that plaintiff was denied the job because of her gender.

Thursday, October 8, 2020

Second Circuit upholds Trump tax return subpoena

These are the most famous tax returns in history. The President doesn't want to release them, and the District Attorney wants them. Trump has been fighting this for over a year. Earlier this year, the Supreme Court said there is no "absolute" presidential immunity from compliance with a grand jury subpoena, but it allowed Trump to make additional arguments on remand against producing them. The Second Circuit has rejected those arguments, and assuming the Supreme Court does not intervene a second time, Trump will now have to turn them over.

The case is Trump v. Vance, issued on October 8. Some presidents are known for the landmark Supreme Court rulings that bear their name. In United States v. Nixon, the Supreme Court ruled in 1974 that Richard Milhous Nixon must turn over the tape recordings that he made in the Oval Office so the congressional committee investigating Watergate could see what Nixon said behind closed doors about the Watergate break-in. That ruling led to Nixon's resignation a few weeks later. In Clinton v. Jones, the Supreme Court ruled in 1997 that the President has no immunity from civil law litigation for acts done before taking office and unrelated to the office. That ruling forced William Jefferson Clinton to give sworn deposition testimony, during which he lied about Monica Lewinsky, resulting in Clinton's impeachment. You see where I am going with this. Who knows where the Trump tax returns case will lead us?

Trump says the subpoena is illegal because it is overbroad and it was issued in bad faith. These arguments can repel a grand jury subpoena if the objecting party has a legitimate basis to assert them. Not this case. The Court of Appeals (Leval, Lohier and Katzmann) notes that Trump challenges the subpoenas not through a motion in criminal court to quash but through a civil lawsuit in which he must satisfy the heightened pleading requirements the Supreme Court set forth in Ashcroft v. Iqbal (2009), requiring the plaintiff to advance non-conclusory and plausible allegations. "A bare allegation of improper motive will not suffice if there is an obvious alternative explanation for the conduct alleged," the Court of Appeals says, quoting from Iqbal

First, the Court says, the subpoena is not overbroad. Settled law tells us that a grand jury investigation is broad in scope "and may expand easily over time." Trump only speculates that the grand jury is only examining the Michael Cohen issues (you know what they are), and, in any event, "Grand juries routinely issue multiple subpoenas seeking different information from different recipients during the course of their investigations, because, after all, they have a duty to follow every available clue wherever it may lead."

What about the bad faith argument? That fails also. Trump does not plausibly argue that the subpoenas were issued out of malice or intent to harass. While Trump says the subpoenas were issued in retaliation for his refusal to produce tax returns in response to a prior subpoena, like the overbroad argument, this is speculative and therefore fails the plausibility test under Iqbal. Nor does Trump argue that the DA issued the subpoena out of partisanship. 

For now, the Second Circuit's order to produce the tax returns is stayed while the Trump legal team seeks relief in the Supreme Court, which is not required to hear the case.

Monday, October 5, 2020

No discretionary immunity in police shooting case, and a question about "special duty" under state law

This police misconduct action involved a no-knock warrant. The police entered a house looking for someone who had allegedly robbed drug dealers. When they got in the house early in the morning, they saw plaintiff Ferreira, who was an overnight guest. They shot plaintiff in the stomach, claiming he was a threat. As for the shooting, the jury entered a verdict for the officer, Miller, but also said the City of Binghamton was liable for its negligent failure to prepare for the raid, causing plaintiff's injuries. The jury found against the city on this claim, awarding plaintiff $3 million in damages. The trial court took away that verdict, and now the case has been handed off the New York Court of Appeals to decide a tricky state law question.

The case is Ferreira v. City of Binghamton, issued on September 23. When the case ended in the district court, plaintiff's claims were all lost, as the trial court (as noted) overturned the verdict against the city, holding that plaintiff did not show any "special relationship" between him and the city that would have allowed him to proceed against the city under state law. The trial court also said the city was not liable because it had discretionary authority to plan for the botched raid.

On the discretionary immunity argument, the Court of Appeals (Leval, Pooler and Livingston) summarizes the law in this area: this immunity only applies when a public employee is negligent in performing a discretionary as opposed to a ministerial act (which would involve a governing ruling with a compulsory result). That's a fine distinction that allows public employees to do their jobs without fear of a lawsuit. There is no discretionary immunity when a police officer violates acceptable police practice. Under this legal rule, 

The actions of City police officers in planning the raid were discretionary (and not ministerial) in nature because they involved the exercise of judgment, not “direct adherence to a governing rule or standard with a compulsory result. The doctrine of discretionary immunity therefore protects the City unless its officers’ actions “violat[ed] [the City’s] own internal rules and policies,”or “acceptable police practice.”

Under this principle, the jury had a basis to render a verdict against the city on the negligence claim, and the city cannot invoke discretionary immunity. The trial court was wrong to conclude otherwise. The Court of Appeals says "the jury could have reasonably concluded 16 that the City was not only negligent but further violated acceptable police practice by failing to conduct adequate pre-raid surveillance and failing to seek to obtain a floor plan of the residence." Police practice in the city dictated that the police obtain a floor plan to ensure they do not needlessly expose members of the public to any harm. That negligent failure led to plaintiff's injury. Also, the police did not properly surveil their intended target to ensure that he was even in the house at the time of the raid. The failure to properly conduct surveillance left the police unaware of who, if anyone, would be in the house at the time of the raid. 

But there is more. In New York, there is no municipal liability unless the police violate a "special duty" between the police and the victim. To show a special duty,

a plaintiff must show “(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking.”

The problem is that state law is not clear on this issue when the harm is committed by governmental actors. The classic special duty case arises when the plaintiff is injured by someone else and the government does not intervene. The Second Circuit, after reviewing the state law cases in this area, says that the mid-level appellate rulings on this issue are all over the place, and that "Applying the special duty requirement to cases of government-inflicted injury would appear to extend the rule far beyond its underlying rationale, as articulated by the Court of Appeals, which recognized the need for some limitation because 'the government is not an insurer against harm suffered by its citizenry at the hands of third parties.'” In cases like this, the Second Circuit will send this issue over to the State Court of Appeals to issue a definitive ruling on a state law issue. When that happens, the Second Circuit will take on this case against and resolve the case under the new State Court of Appeals ruling.

Friday, October 2, 2020

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.