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Johnson v. Burns

United States District Court, S.D. New York

May 4, 2017

KEVIN JOHNSON, Plaintiff,
v.
JEROME BURNS and MATTHEW WRIGHT, Defendants.

          OPINION & ORDER

          Paul A. Engelmayer United States District Judge.

         Between January 9 and 12, 2017, the Court presided over a jury trial in which plaintiff; Kevin Johnson pursued false arrest and malicious prosecution claims under 42 U.S.C. § 1983 against defendants Jerome Burns and Matthew Wright, both of whom are police officers. The jury returned a mixed verdict. It found Burns not liable on either claim. It found Wright liable for false arrest but not malicious prosecution. The jury awarded Johnson nominal damages from Wright of $0.50 (i. e., 50 cents).

         This decision resolves Wright's post-trial motion. Dkt. 72. Wright argues that, as to the false arrest claim against him-the sole claim on which he was held liable-he is entitled to a judgment in his favor either (1) as a matter of law under Federal Rule of Civil Procedure 50, or (2) based on qualified immunity.

         For the following reasons, the Court denies that relief, but sets aside the jury verdict and orders a new trial.

         I. Background

          A. Johnson's Arrest and Filing of this Action

         On August 30, 2013, Johnson was arrested and charged with criminal sale of a controlled substance, criminal possession of a controlled substance-both relating to heroin-and possession of marijuana. Dkt. 72, Ex. B ("Trial Transcript" or "Tr, ") at 101-02. These charges were later dismissed because the statutory time period to prosecute had expired.

         On June 19, 2015, Johnson filed this § 1983 action against Burns and Wright. Dkt. 1.

         B. Trial Testimony

         At trial, the jury heard testimony from Johnson, from both defendants, and from witness Gilda Giscombe. All four supplied accounts of Johnson's arrest.

         Giscombe testified as follows: She was out shopping on August 30, 2013, when she encountered Johnson, whom she knew from her neighborhood, near West 126th Street and St. Nicholas Avenue. Tr. at 33. Johnson asked her for money to use to take the subway. Id. at 33-34. She gave him a $10 bill, which she intended to split with him, such that they would each keep $5. Id. at 34. She then walked for some distance with Johnson and "a couple of gentlemen" that Johnson was with, whom Giscombe did not know. Id. at 34-35. Johnson decided to go into a McDonald's near West 125th Street and St. Nicholas Avenue to get change for the $10 bill; Giscombe waited for him outside. Id. at 35. Sometime thereafter, he came out and gave her change, and then went back into the restaurant. Id. at 46-7. Multiple officers then ran into the McDonald's and brought Johnson out, while another officer detained Giscombe. Id. at 35. One of the men whom Johnson had been walking with, whom Giscombe said went by the name "Justice, " started throwing drugs out of his pockets and onto the ground. Id. at 36. Officers searched both Johnson and Giscombe and found one glassine of heroin on Giscombe. Id. at 37. Giscombe had purchased the heroin in the Bronx before encountering Johnson. Id. at 37. Johnson had not sold Giscombe the heroin. Mat 38-39. Giscombe and Johnson were both arrested; Giscombe later pled guilty to possessing heroin. Id. at 47.

         Johnson testified as follows: He was walking, with an acquaintance he knew as "Justice" but whose true name "could be" Johnny Smith, to the subway station near West 125th Street and St. Nicholas Avenue, when he realized he did not have money for the train. Id. at 55, 71-72. He then saw another acquaintance, Giscombe, who said she would give him money. Id. at 55. Giscombe handed him one bill, which may have been a $10 bill. Id. at 55, 76. Johnson needed to get change for her, so he walked to a McDonald's and went inside to purchase a coffee for Giscombe at her request. Id. at 56. While in line for the coffee, Johnson was approached by Bums, who arrested Johnson, Giscombe, and Smith. Id. at 56, 79-80. Johnson observed Smith pulling heroin out of a "pouch" that Smith was wearing. Id. at 84. Giscombe had heroin on her person as well. Id. at 84. Johnson had not had any heroin on him. Id. at 60, 84.

         Wright testified as follows: While working as an undercover officer in the New York Police Department ("NYPD"), Wright observed Johnson, Giscombe, and Smith standing on the west side of the corner of West 126th Street and Eighth Avenue. Id. at 89, 92, 106. Wright saw Giscombe hand money to Johnson. Id. at 90. Wright then followed Johnson, Giscombe, and Smith as the group walked to a McDonald's restaurant on the southwest corner of West 125th Street and St. Nicholas Avenue. Id. at 90. Wright observed Johnson enter the McDonalds with Smith. Id. at 94. When Johnson exited approximately one minute later, Wright "observed the plaintiff with his hand open, palm to the sky, in a cupped position, with numerous glassines of heroin in it." Id. at 94-95. After seeing Johnson hand Giscombe the glassines, id. at 98, Wright followed Johnson as Johnson re-entered the McDonald's, id. at 99. While following Johnson into the restaurant, Wright used his radio to inform fellow members of his narcotics field team, including Burns, of liis observations. Id. at 103. Once inside the restaurant, Wright observed, from a slight distance, Burns enter the McDonald's and place Johnson under arrest. Id. at 100.

         Burns testified as follows: On the day of Johnson's arrest, Burns, a detective with the NYPD, was working with Wright. Id. at 226. Burns, who was designated the "arresting officer" for purposes of this assignment, rode in an unmarked police vehicle with another officer, driving around in the general vicinity of Wright, who was relaying to Burns information from his undercover observations. Id. at 226-227. Burns received information from Wright "that a sale had taken place and that the sale subject was inside of the McDonald's." Id. at 226-227. Burns exited the police vehicle and entered the McDonald's, where he observed Johnson for the first time. /(i. at 200, 228. Johnson was "standing alone, " and Burns began to approach him. Mat 202. As Burns approached, he saw Johnson drop two glassines of heroin onto the ground near his feet. Id. at 219, 228-229. Burns testified that he observed Johnson drop the heroin prior to conducting the arrest and cited that observation as a reason he arrested Johnson. Id. at 219, 228-29. Only after seeing the heroin on the ground did Burns instruct Johnson to turn around and put handcuffs on him. Id. at 228. Burns then "retrieved the heroin off the ground" and "escorted [Johnson] out of the McDonald's." Id. at 228.

         C. The Jury's Verdict

         The jury returned a verdict on January 11, 2017, finding Burns not liable on either claim and finding Wright liable for false arrest but not malicious prosecution. Dkt. 72, Ex. A ("Verdict Form") at 1-2. It awarded nominal damages in the amount of 50 ...


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