United States District Court, S.D. New York
OPINION & ORDER
A. Engelmayer United States District Judge.
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).
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
following reasons, the Court denies that relief, but sets
aside the jury verdict and orders a new trial.
A. Johnson's Arrest and Filing of this
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.
19, 2015, Johnson filed this § 1983 action against Burns
and Wright. Dkt. 1.
trial, the jury heard testimony from Johnson, from both
defendants, and from witness Gilda Giscombe. All four
supplied accounts of Johnson's arrest.
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.
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
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.
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.
The Jury's Verdict
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 ...