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September 23, 2002


The opinion of the court was delivered by: Shira A. Scheindlin, United States District Judge


In the autumn of 1998, then-police officer James Davis's name appeared on the Liberal Party "slate" for the upcoming November election. Over the next few months, Davis conducted a minimal campaign and, on November 3, he was listed on the election ballot as the Liberal Party's nominee for State Assembly. The next day, the New York City Police Department fired Davis for violating a law that prohibits police officers from accepting a political party's nomination without resigning their commission. See N.Y. City Charter Ch. 49 § 1129.

Davis explained to the Police Commissioner that he was never the Liberal Party nominee because he had not filed a certificate accepting the nomination. This view was later supported when the Board of Elections stated in a November 10th letter that it erred in including Davis on the ballot because he was not an official nominee. Nonetheless, members of the Police Department refused to reinstate Davis.

Davis eventually brought this action under 42 U.S.C. § 1983 ("section 1983") alleging that the Police Department took these and other adverse actions against him because he had previously engaged in the following activities that are protected by the First Amendment: (1) challenging a Democratic incumbent, Clarence Norman, in a primary election the summer of 1998, (2) criticizing the Police Department for police brutality over the years, and (3) speaking out on issues of public concern (e.g., violence in the media). On June 10, 2002, a jury found that the Police Department had retaliated against Davis for one of these reasons when, after receiving the Board of Elections letter, it did not reinstate his commission. Davis was awarded $100,000 in damages.

The City of New York*fn1 now moves to set aside this verdict under Rule 50 of the Federal Rules of Civil Procedure on the ground that the evidence presented at trial does not support the jury's finding that the Police Department has an official policy or custom of retaliating against police officers for exercising their First Amendment rights — an essential element of a section 1983 claim against a municipality. For the reasons explained below, the City's motion is granted.*fn2


Rule 50 permits a court to override a jury's verdict and enter judgment against a party where "there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue. . . ." Fed.R.Civ.P. 50(a). In making this determination, a court is required to

consider the evidence in the light most favorable to the party against whom the motion was made and to give that party the benefit of all reasonable inferences that the jury might have drawn in his favor from the evidence. The court cannot assess the weight of conflicting evidence, pass on the credibility of witnesses, or substitute its judgment for that of the jury.

Tolbert v. Queens Coll., 242 F.3d 58, 70 (2d Cir. 2001) (quoting Smith v. Lightning Bolt Prods., Inc. 861 F.2d 363, 367 (2d Cir. 1988) (quotation marks omitted)). "[A]lthough the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000).

A party seeking judgment as a matter of law bears a heavy burden. See Burke v. Spartanics, Ltd., 252 F.3d 131, 136 (2d Cir. 2001). Judgment as a matter of law should be granted only if: "(1) there is such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or (2) there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded [persons] could not arrive at a verdict against [it]." Galdieri-Ambrosini v. National Realty & Dev. Corp., 136 F.3d 276, 289 (2d Cir. 1998) (quotation marks omitted, brackets in original). In sum, a court may grant a Rule 50 motion only where "the evidence, viewed in the light most favorable to the opposing party, is insufficient to permit a reasonable juror to find in [his] favor." Id.



Following the Crown Heights riots in August of 1991, Davis became politically active. He spoke out against police brutality.*fn4 Davis also made it a goal to try to bring together the Black and Jewish communities in Crown Heights by, for example, organizing an annual "Stop the Violence" march around the anniversary of the unrest in Crown Heights. In subsequent years, Davis was active on other issues of public concern as well. For example, Davis campaigned for "Toys `R' Us" not to sell "look-alike" toy guns to children. He also threatened to organize a boycott of MTV's advertisers unless MTV removed music videos depicting violent or sexually explicit messages.

In 1997, Davis ran on the Democratic Party "ticket" or "slate" to represent his district on the City Council but he did not resign his commission as a police officer.*fn5 See Trial Transcript ("Tr.") at 47. In doing this, Davis violated the law because the New York City Charter provides in relevant part that:

Any . . . member of the police force . . . who shall during his or her term of office be nominated for any office elective by the people . . . and shall not, within ten days succeeding same, decline the said nomination, shall be deemed thereby to have resigned his or her commission and to have vacated his or her office

N.Y. City Charter Ch. 49 § 1129. Once an individual is designated as a party's nominee that person holds an "office elective by the people." Id. Thus, any police officer nominated to run for office on a party's ticket must resign his commission or "decline said nomination."*fn6 Id. Although Davis did neither of these things, the Police Department did not discipline him. In fact, Davis campaigned with the support and encouragement of his superiors. In September 1997, Davis lost his bid for City Council.

In June 1998, Davis challenged Clarence Norman for the Democratic Party's nomination for State Assembly in his district. Relative to Davis, Norman was politically well-connected and powerful — Norman had been the State Assembly incumbent of that district for over a decade and he was Chairperson of the Kings County Democratic Party Organization. Nonetheless, on September 15, 1998, Davis lost the primary election to Norman by a mere 580 votes.*fn7

During the primary campaign, the Police Department launched an investigation into Davis's conduct. An Investigating Officer's Report, Preliminary Investigation from the Internal Affairs Bureau ("IAB") dated September 11, 1998, contains the following allegation:

Capt. Ogara of the 071 Pct reports that Verona Hollis a restaurant owner alleges that the Subject officer [Davis] while displaying his shield told her to hang his poster in her window. PO Davis is running for State Assembly. Ms. Hollis also alleges that when she told PO Davis she would not display his poster he stated, `Do you know who I am. You don't know who you are dealing with. I'll close your drug dealing business.

Plaintiff's Exhibit ("Pl. Ex.") 20; Tr. at 222-25. According to Log Data from the Internal Affairs Division, the matter was ultimately referred to the Personnel Bureau for resolution. See Pl. Ex. 16; Tr. at 392-93. Nothing in the record indicates that the Police Department or IAB made any conclusions about Davis's behavior or that the matter was closed.

Although Davis had seriously pursued the Democratic nomination and his name appeared on the primary ballot, he did not resign from the Police Department. This was perfectly legal, however, because a member of the police force only holds "elective office" under the City Charter upon being nominated to run on a particular party's ticket. N.Y. City Charter Ch. 49 § 1129. Police officers may therefore pursue a nomination, as Davis did, by placing their names on the primary ballot or campaigning. Such actions do not run afoul of the law because the officer is not holding an "elective office" but simply seeking it.*fn8 Id.

After Davis lost the Democratic primary to Norman, his name appeared on the Liberal Party's "slate" petition as the Liberal Party nominee for State Assembly.*fn9 It is undisputed that if Davis had been an actual nominee of the Liberal Party,*fn10 he would have had to resign his commission as a police officer. Yet, for several reasons, Davis was not a legitimate nominee. The Liberal Party did not file the certificate that is required to nominate a candidate enrolled in another party,*fn11 the petition supporting Davis's nomination for the Liberal Party did not contain enough signatures, and Davis never filed a required certificate accepting his nomination.

According to his testimony at trial, Davis did not conduct this campaign to win the election. See, e.g., Tr. at 58-59. Rather, with his name already on the Liberal Party slate, Davis feared a poor showing of voters would significantly harm his political future.*fn13 Davis merely wanted people to vote for him so that his political career would not be adversely affected.*fn14 While conducting this campaign, Davis continued to perform all of his duties as a police officer.

The election for New York State Assembly was held on November 3, 1998. Davis's name appeared on the official ballot and many people voted for him even though he could not have legally served as an Assembly member had he won. The next day, November 4, employees of the Police Department went to Davis's house to confiscate his badge and firearm. Later that day, members of the Police Department, who did not understand the intricacies of the City Charter or New York election law, informed Davis that he had constructively resigned from the Police Department by failing to decline the Liberal Party nomination.

During this process, Davis began to lay the groundwork for a lawsuit against the Police Department. On December 3, 1998, Davis filed a complaint with the Equal Employment Opportunity Office of the New York City Police Department. On December 9, 1998, he filed a notice of claim with the Comptroller of the City of New York, which alleged that the Police Department had violated his constitutional rights and wrongfully discharged him.*fn16 On December 22, 1998, Davis brought an Article 78 proceeding in state court that sought to annul his removal from active police officer status. See Tr. at 77.

On January 18, 2000, a year after Davis had begun his state action, Justice Barbara R. Kapnick of the Supreme Court of the State of New York found that Davis had not violated section 1129 and ordered that the Police Department reinstate Davis as a police office forthwith with back pay. See Pl. Ex. 33 at 10; Tr. at 79. The Police Department subsequently reinstated Davis as a police officer, awarded him back pay, and assigned him to the 69th precinct where he worked the night shift. See Tr. at 81.

On January 27, 2000, Davis purchased an index number in the Clerk's office of the New York State Supreme Court, New York County. On May 25, 2000, Davis served a Summons with Notice on the New York City Police Department. The City then removed the action to this Court. Among other things, Davis's Amended Complaint alleged: (1) his termination and the Department's subsequent actions were in retaliation for his exercise of his First Amendment rights, (2) the City's actions were motivated by racial discrimination, and (3) the City was liable for the intentional infliction of emotional distress and prima facie tort under New York law. On December 27, 2000, this Court granted the City's motion to dismiss all of Davis's claims with the exception of his allegation that the City had retaliated against him for engaging in certain acts that are protected by the First Amendment. See Davis, 2000 WL 1877045 at *1.

After a four-day trial, a jury considered whether the City had retaliated against Davis for exercising his First Amendment right when it: (1) terminated his employment on November 4, 1998, (2) refused to reinstate him after Davis sent a letter to Police Commissioner Safir on November 5, 1998, (3) refused to reinstate him after it received the Board of Elections's statement of error in a letter from Davis's lawyer dated November 24, 1998, and (4) assigned him to the night shift of the 69th precinct, rather than the Police Academy, after being ordered by a court to reinstate Davis.

The jury was instructed that Davis had a First Amendment right to run in the 1998 Democratic primary campaign, criticize the Police Department, and speak out on issues of public concern. The jury was also instructed that Davis did not have a First Amendment right to violate New York City Charter § 1129 by running on the Liberal Party ticket in the 1998 general election without resigning his commission as a police officer.*fn17 After being so instructed, the jury found that the Police Department's decision to fire Davis on November 4, 1998, was not motivated by his protected First Amendment activities. See Special Verdict Form ("SVF"), Ex. A to the Declaration of Donald C. Sullivan, Assistant Corporation Counsel, in Support of Defendant's Motion for Relief Under Rules 50 and 59, at 1. The jury also found the Police Department legitimately refused to reinstate Davis after it received his letter dated November 5, 1998. See id. Likewise, the jury found that it was appropriate for the Police Department to assign Davis to the night shift at the 69th precinct when it reinstated his commission in 2000. See id.

However, the jury also found that the Police Department retaliated against Davis by not reinstating his commission after it received the letter from the Board of Elections from Davis's lawyer that explained that Davis had not officially run on the Liberal Party ticket.*fn18 Thus, according to the jury's finding, the Police Department's decision not to rehire Davis after receiving this letter was motivated by: (1) his 1998 campaign against Norman in the Democratic primary, (2) Davis's criticism of the Police Department, (3) his comments on issues of public concern or (4) some combination thereof. See id. At the same time, the jury also found that none of ...

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