Excessive force verdict is gone

This qualified immunity case shows us what happens when the case is unique and the jury rules in your favor but the court determines later on that the case was sufficiently esoteric that the police officers who committed the constitutional violation were not on constructive notice that a judge later on would find they did anything illegal.

The case is Matusak v. Daminski, issued on January 29. This case went to trial in the Western District of New York. The jury awarded plaintiff $200,000 in damages. But that was not the end of the case. Defendants raised a qualified immunity argument, which led the trial court to ask the jury, in writing, to particularize what it believed took place when the defendants struck plaintiff. Those answers doomed the verdict.

Plaintiff was arrested following a foot pursuit, which ended after the officer directed plaintiff, without success, to stop resisting arrest. According to the jury, the police reasonably believed that plaintiff had posed a threat to officer safety when defendant Murphy struck him to effectuate the arrest. As for the second arresting officer, Unterborn, the jury also found he reasonably believed that plaintiff posed a threat to officer safety when he used excessive force. The trial court asked the jury to answer special interrogatories to gain further jury insight into the facts so that the court could then resolve the qualified immunity question, which is a matter of law. The trial judge threw out the verdict on qualified immunity grounds: that no clearly established case law barred the use of significant force by an officer against an arrestee who is resisting arrest and is reasonably believed to pose a threat to officer safety.

The jury does not know this, and few clients really understand this, but the verdict is not the final words on the case. There will usually be an appeal or at least post-trial motions to vacate the verdict. And making matters even more complicated, the verdict may be undercut by the trial judge's finding that the verdict was not appropriate under qualified immunity, which says the only public defendants (like police officers) who can lose at trial are those who violate clearly established and particularized case law. 

The Court of Appeals (Wesley, Livingston and Wolford [D.J.]), affirms the trial court's order dismissing the verdict, and the verdict is gone for good. The problem for plaintiff is that while courts have said the police cannot use excessive force in arresting someone who is compliant or not resisting arrest, the law was not clear as to the facts in this case: where a suspect, after fleeing the police, was resisting the officers' attempts to place him in handcuffs and the officers reasonably though he posed a threat to officer safety. After all, the chase brought everyone into a dark wooded area and when the officers arrived there, plaintiff still had not been handcuffed, and his hands were hidden beneath his body. 

Plaintiff argued that qualified immunity cannot attach because he was only passively and not actively resisting arrest. But, the Court says, that does not save the verdict. "Passive resistance" is another fuzzy concept under the Fourth Amendment. The Court holds there was no clearly established law that an individual resisting arrest and under circumstances like those in this case was merely passively resisting.