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September 13, 1990


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.

Prior Proceedings

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 Facts

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 David Mendelsohn.

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 ...

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