United States District Court, Southern District of New York
September 13, 1990
POSR AMOJO POSR, PLAINTIFF,
NEW YORK CITY POLICE OFFICER KEVIN DOHERTY, SHIELD # 4478, AND NEW YORK CITY POLICE OFFICER THOMAS HOLIHAN, SHIELD # 9061, DEFENDANTS.
The opinion of the court was delivered by: Sweet, District Judge.
The defendants New York City Police Officers Kevin Doherty
("Doherty") and Thomas Holihan ("Holihan") have moved in
accordance with Rule 50(b), Fed.R.Civ.P., for judgment
notwithstanding the verdict that was rendered by the jury in
favor of the plaintiff Posr Amojo Posr ("Posr")*fn1 in this
action on December 21, 1989. For the reasons set forth below,
the motion is granted in part and denied in part.
This action was commenced on September 11, 1987 by the filing
of a complaint alleging violations of 42 U.S.C. § 1981 and
1983 and pendent state claims of assault, false arrest and
imprisonment, intentional infliction of mental distress and
malicious prosecution, arising out of an incident which took
place on February 14, 1987. Various pretrial motions were made
and decided. Thereafter on December 12, 1989 the trial was
commenced, terminating on December 21 in a jury verdict in
favor of Posr against Doherty, awarding compensatory damages of
$5,000 and punitive damages of $10,000 for excessive force; and
as against Holihan compensatory damages of $10,000 and punitive
damages of $10,000 for false arrest in violation of 42 U.S.C. § 1983
and damages for excessive force in the same amount and
classification as against Doherty, namely, $5,000 compensatory
and $10,000 punitive.
This motion on the part of the defendants was argued and
finally submitted on May 4, 1990.
The testimony during the five days of trial and the post
trial submission establish certain of the facts without
dispute. Posr was a participant in a demonstration that started
on February 14, 1987 on the west side of Manhattan, crossed
town on 42nd Street to Second Avenue and then was to go north
to 49th Street where speeches were to be made and Posr was to
perform. The march intended to focus interest and support with
respect to the homeless as was stated by the chant which
accompanied the march, "Homeless, not helpless." The
demonstration and the march had obtained the necessary permits
which set forth the proposed route and conduct.
At Grand Central the march diverted into Grand Central
Station, contrary to the permit and to the surprise of the
police officers who were escorting the march. The paraphernalia
of the demonstration included a long banner which was held so
that its message could be read by those observing the march.
When the march approached Second Avenue, those holding the
banner deemed it necessary to reverse ends so that the message
could be seen to advantage. There was a line of police officers
at Second Avenue arrayed to prevent the march from going down
42nd Street and to turn it up Second Avenue. Posr was among the
marchers. At the corner an altercation ensued, Posr was
restrained by police officers, broke away briefly and was again
restrained, arrested and taken to the 17th Precinct where he
was charged with resisting arrest, disorderly conduct and
assault. He was detained for forty-five hours before receiving
bail. The charges against Posr were dismissed in August 1987.
Certain portions of the activities of the march were
videotaped, some photographs were taken, and eleven eye
witnesses including the parties testified.
Necessary to the jury determinations as to liability were
certain factual findings, and from those findings which
underlay the answers to the Special Interrogatories posed and
from the evidence, a version of the facts consistent with the
answers and Posr's theory of the case can be set forth for the
purposes of this motion. At the corner of Second Avenue and
42nd Street the march and the police line converged, in part at
least because of the perceived need of the demonstrators to
turn the banner around. A shoving match ensued as the police
sought to resist any movement down 42nd street. Posr observed
this confrontation and what he characterized as shoving by the
police and sought to assist the demonstrators, in particular
As Posr approached the confrontation, Holihan grabbed him,
punches were thrown, Posr was struck in the solar plexus by a
night stick, and Doherty joined the melee, receiving a blow on
the nose from Posr, and being knocked down as a consequence.
Posr broke away, was pursued and handcuffed. He was then
transported to the precinct where the paper work was completed
by Officer Joyce, Doherty in the meantime having gone to the
hospital to receive medical assistance. Doherty, however, was
listed as the arresting officer.
Standards for Judgment n.o.v.
Judgment n.o.v. may be entered only if the evidence, viewed
in the light most favorable to the non-moving party and without
considering credibility or the weight of the evidence,
reasonably permits only a conclusion in favor of the moving
party. Sirota v. Solitron Devices, Inc., 673 F.2d 566, 573 (2d
Cir.), cert. denied, 459 U.S. 838, 103 S.Ct. 86, 74 L.Ed.2d 80
(1982); Mattivi v. South African Marine Corp. "Huguenot",
618 F.2d 163, 167 (2d Cir. 1980). In Petramale v. Local 17,
Laborers International Union, 671 F. Supp. 261 (S.D.N.Y. 1987),
rev'd on other grounds, 847 F.2d 1009 (2d Cir. 1988), the court
stated that "[i]t is well settled that in determining a motion
for judgment n.o.v. the court is bound to view the totality of
the evidence in the light most favorable to the prevailing
party, giving that party the benefit of all inferences
supported by the proof." Id. at 264. The court cited the
standard in this circuit:
"A trial court may correct a jury's decision only
if after so viewing the evidence it is convinced
that (1) there is a complete absence of probative
evidence to support the verdict in favor of the
prevailing party, or (2) that the evidence is so
strong and overwhelmingly in favor of the non
prevailing party that reasonable and fair-minded
persons in the exercise of impartial judgment
could not render a verdict against it."
Id. (quoting Brink's Inc. v. City of New York, 546 F. Supp. 403
(S.D.N.Y. 1982), aff'd, 717 F.2d 700 (2d Cir. 1983)).
Furthermore, the fact that some of the evidence might support
the jury verdict "does not preclude a granting of the motion
[for j.n.o. v.]." Petramale, 671 F. Supp. at 266.
Although the versions of the events differed as between the
parties and witnesses, it cannot be said that there was
insufficient evidence to support the jury's verdict that both
Doherty and Holihan used excessive force in their effort to
subdue and arrest Posr.
The evidence on the excessive force issue consisted of the
testimony of Posr, Doherty, Holihan, and the other witnesses,
as well as still photographs and videotape taken at the scene
of the confrontation. Posr testified that the physical injury
that he received from this incident was that he was "struck in
[his] solar plexus area twice." (Trial transcript p. 624). A
witness identified Doherty as the officer who struck Posr.
There was also evidence that Holihan approached Posr, shoved,
grabbed and shook him. Posr could not say that it was Doherty
who hit him with the only blows that landed on him. However,
the videotape indicates that Doherty did have his nightstick in
position to be used.
Where several police officers are charged with excessive
force, the plaintiff must prove the involvement of each officer
and the part that each particular officer played in inflicting
excessive force upon
the plaintiff in order to justify the award of punitive damages
against that officer. See McFadden v. Sanchez, 710 F.2d 907 (2d
Cir.), cert. denied, 464 U.S. 961, 104 S.Ct. 394, 78 L.Ed.2d
337 (1983). From all the evidence the jury could infer that
Doherty injured Posr by use of his nightstick, and that Holihan
also injured him by shoving and grabbing at him. Whether the
degree of force used was excessive or not was an issue within
the appropriate province of the jury.
Holihan Did Not Unlawfully Arrest and Detain Posr
The New York Court of Appeals has defined arrest as the
detaining of a person, the obtaining of the actual physical
control and custody of him, and retaining it against his will
and without his consent, under some real or assumed authority.
Jacques v. Sears, Roebuck & Co., 30 N.Y.2d 466, 473, 334
N YS.2d 632, 638, 285 N.E.2d 871, 874 (1972). In making a
distinction between an arrest in law and fact, the Jacques
"A command to stop, which is obeyed, is, of
course, an arrest; but much depends on what
follows, in order to constitute one entailing the
responsibilities of criminal or civil false
imprisonment, — as every mere command to stop may
not be, nor intended to be, nor understood to be, a
real 'arrest' in law or fact. Arrest includes the
keeping under restraint of one so 'detained' until
brought before the magistrate."
Id. at 473, 334 N.Y.S.2d at 638, 285 N.E.2d at 874 (quoting 1
Alexander, The Law of Arrest 358).
Here, Holihan did not formally arrest the plaintiff, nor did
he detain him until he would be brought before the justice
system. The videotape shows Holihan sitting in the police car
some time before Posr was taken to the station house and the
still photographs show two officers other than Doherty and
Holihan handcuffing him. Holihan did not have Posr in his
custody and did not bring him before the magistrate as required
for false arrest. Thus whether or not Holihan had probable
cause to do so, he did not arrest Posr within the legal meaning
of the term.
In addition, the evidence at trial did establish probable
cause to arrest. "Probable cause exists where 'the facts and
circumstances within their [the officers'] knowledge and of
which they had reasonably trustworthy information [are]
sufficient in themselves to warrant a man of reasonable caution
in the belief that' an offense has been or is being committed."
Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302,
1310-11, 93 L.Ed. 1879 (1949) (quoting Carroll v. United
States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543
(1925)) (brackets in original). The existence of probable cause
is determined by analysis of the "totality of the
circumstances" and is "a 'practical, nontechnical conception'"
based upon "'probabilities . . . and the factual and practical
considerations of everyday life on which reasonable and prudent
men, not legal technicians, act.'" Illinois v. Gates,
462 U.S. 213, 231, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983) (quoting
Brinegar, 338 U.S. at 175 & 176, 69 S.Ct. 1310 & 1311).
One of the photos (Defendant's Exhibit D-2) shows Posr
striking Holihan on the left arm with his right hand. All the
witnesses, including Posr, agreed that the scene took place
before the events in the videotape. The photograph thus
establishes that before Joyce or any other officer came into
contact with Posr, Posr had knocked the arm of Holihan. Under
these circumstances, Holihan had probable cause to arrest Posr
for harassment or disorderly conduct.
Finally, the jury found that there was probable cause for
Doherty to arrest Posr, but not for Holihan to do so. The
objective evidence presented at trial, specifically the
videotape, shows that the incident took less than twenty
seconds. Posr's first contact with either of the defendant
officers was with Holihan. The videotape establishes that
Holihan appeared in the scuffle after the altercation began.
It is therefore inconsistent to conclude as the jury did that
Doherty had probable cause some five to ten seconds into the
altercation, based upon observing a struggle, and that Holihan
The verdict with respect to an unlawful arrest and detention
by Holihan must therefore be set aside as without basis in the
record and inconsistent with the finding with respect to
Punitive Damages Are Appropriate
While it may be difficult to assess the amount of punitive
damages that are appropriate arising out of an encounter as
brief as the one at issue here, nonetheless it is assumed that
the jury was correctly instructed and that evidence was
presented as to the nature of the conduct of the officers.
Under these circumstances, it is not appropriate to set aside
the jury determination as to punitive damages on the excessive
The verdict against Holihan for false arrest in violation of
§ 1983 will be set aside for the reasons set forth. In all
other respects the motion is denied. Enter judgment on notice.
It is so ordered.