Case 1:11-cv-03028-PKC-SMG Document 120 Filed 03/22/18 Page 1 of 32 PageID #: 3383
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`MEMORANDUM & ORDER
`11-CV-3028 (PKC) (SMG)
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
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`LARRY JACKSON,
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`Plaintiff,
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` -
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` against -
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`JESUS TELLADO, STANLEY MACNEAR,
`JOHN CZULADA, JAMES T. GHERARDI,
`RYANN DUNN, ROBERT J. DEFERRARI,
`KENNETH BRAUMANN, BEN KURIAN,
`PETER BONETA, THOMAS E. REO,
`MICHAEL FAILLA, AND BRIAN E.
`HEEREY,
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`Defendants.
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`PAMELA K. CHEN, United States District Judge:
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`On February 3, 2016, after a seven-day trial, the jury returned a verdict in favor of Plaintiff
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`Larry Jackson, a New York City Police Department (“NYPD”) officer, on his claims under 42
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`U.S.C. § 1983 against fellow NYPD Officers Jesus Tellado, Stanley MacNear, John Czulada,
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`James Gherardi, Ryann Dunn, Robert Deferrari, Kenneth Braumann, Ben Kurian, Peter Boneta,
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`Thomas Reo, Michael Failla, and Brian Heerey (collectively, “Defendants”). The jury determined
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`that Plaintiff had been falsely arrested and subjected to excessive force, and awarded Plaintiff
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`$12,500,000 in compensatory damages and a total of $2,675,000 in punitive damages, comprised
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`of varying amounts against each of the Defendants. At the request of defense counsel, the parties
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`were permitted to brief Defendants’ post-trial motions in two phases, first for qualified immunity
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`and then for judgment as a matter of law or a new trial. On February 15, 2017, the Court issued
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`its decision on Defendants’ qualified immunity motion, which resulted in the granting of qualified
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`immunity as to certain Defendants on the false arrest verdicts. (See Dkt. 111.)
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`1
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`Pending before the Court is Defendants’ motion seeking judgment as a matter of law under
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`Federal Rule of Civil Procedure 50 (“Rule 50”) as to ten of the twelve Defendants and a new trial
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`as to the two other Defendants under Federal Rule of Civil Procedure Rule 59 (“Rule 59”) (“Rule
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`50/59 motion”). For the reasons set forth below, the Court grants in part and denies in part
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`Defendants’ motions. The Court also directs the parties to submit briefing, pursuant to the
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`schedule set forth infra, on whether the Court should grant remittitur with respect to the jury’s
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`compensatory and punitive damages awards.
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`I.
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`PROCEDURAL HISTORY
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`BACKGROUND
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`On June 24, 2011, Plaintiff filed his complaint against the City of New York and twenty
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`John Doe defendants. (Dkt. 1.) After initial discovery, Plaintiff filed an Amended Complaint on
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`March 1, 2013, naming the Defendants, and adding Officer Patrick D’Onofrio and Detective
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`Robert Russo. (Dkt. 30.) Defendants moved for summary judgment on August 20, 2013 (Dkt.
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`55), and the Court granted that motion in part on March 17, 2014, dismissing Officer D’Onofrio
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`and the City of New York, (Dkt 67). The parties proceeded to trial on January 25, 2016, but during
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`trial, stipulated to the dismissal of Detective Russo (Dkt. 92), which the Court so ordered the next
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`day.
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`After seven days of trial, the jury returned a verdict finding that three Defendants—
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`Deferrari, Reo, and Heerey—were personally involved in falsely arresting Jackson, that four
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`Defendants—Tellado, MacNear, Boneta, and Failla—failed to intervene to prevent Plaintiff
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`Jackson’s false arrest, and that one Defendant—MacNear—was liable as a supervisory officer for
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`Plaintiff’s false arrest. (Verdict Sheet, Dkt. 95, at 1-2.)
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`2
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`With respect to the excessive force claim, the jury found that four Defendants—Czulada,
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`Kurian, Reo, and Failla—were personally involved in subjecting Plaintiff to excessive force, that
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`eight Defendants—Tellado, MacNear, Gherardi, Dunn, Deferrari, Braumann, Boneta, and
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`Heerey—had failed to intervene to prevent Jackson from being subjected to excessive force, and
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`that one Defendant—MacNear—was liable as a supervisory officer based on Plaintiff having been
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`subjected to excessive force. (Id. at 3-4.) Every Defendant who went to trial was found liable on
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`at least one claim. The jury awarded compensatory damages in a lump-sum amount of
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`$12,500,000, as to which all Defendants are jointly and severally liable, and found Defendants
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`liable for a total of $2,675,000 in punitive damages, with specific amounts of punitive damages
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`being assessed against each liable Defendant.1
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`On February 15, 2017, the Court issued a Memorandum & Opinion (“February 15
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`Decision”) holding that Defendants Deferrari, Reo, Heerey, MacNear, and Boneta were entitled to
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`qualified immunity regarding the false arrest verdicts against them. (Dkt. 111.) The Court also
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`found that Defendants Failla and Tellado were not entitled to qualified immunity for the false arrest
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`verdicts against them2, and that none of the Defendants who were found liable for excessive force
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`were entitled to qualified immunity for the excessive force verdicts against them. (Id.)
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`1 The jury awarded $300,000 in punitive damages against Tellado; $300,000 against
`MacNear; $275,000 against Czulada; $150,000 against Gherardi; $150,000 against Dunn;
`$250,000 against Deferrari; $50,000 against Braumann; $400,000 against Kurian; $125,000
`against Boneta; $275,000 against Reo; $350,000 against Failla; and $50,000 against Heerey, for a
`total of $2,675,000 in punitive damages. (Verdict Sheet, Dkt. 95.)
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` 2
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` However, the Court suggested that the false arrest verdicts against Failla and Tellado
`nonetheless might not withstand a Rule 50 motion. (See Dkt. 111, at 33, n.22.) (“As with Failla,
`this ruling does not resolve the question of whether the evidence was sufficient to support the
`jury’s failure to intervene verdict as to Tellado. Indeed, the Court notes that the evidence
`supporting Tellado’s liability is thin . . .”).)
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`3
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`On March 31, 2017, Defendants filed their Rule 50/59 motion. (Defs.’ Rule 50/59 Mot.
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`(“Defs.’ Mot.”), Dkt. 113.) Plaintiff filed his opposition on May 13, 2017 (Pl. Opp’n., Dkt. 117),
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`and Defendants replied on May 24, 2017, (Defs.’ Reply, Dkt. 118).
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`II.
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`RELEVANT FACTS
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`The Court assumes the parties’ familiarity with the trial record and also incorporates herein
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`the Relevant Facts section from its February 15 Decision on qualified immunity. (See Dkt. 111,
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`at 2–15.)
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`DISCUSSION
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`I.
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`JUDGMENT AS A MATTER OF LAW UNDER RULE 50
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`A. Legal Standard
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`Rule 50 “generally imposes a heavy burden on a movant, who will be awarded judgment
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`as a matter of law only when ‘a party has been fully heard on an issue during a jury trial and the
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`court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for
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`the party on that issue.’” Cash v. Cnty. of Erie, 654 F.3d 324, 333 (2d Cir. 2011) (quoting Fed. R.
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`Civ. P. 50(a)). In making this determination, the court should review the record as a whole but
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`“must draw all reasonable inferences in favor of the nonmoving party” and “disregard all evidence
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`favorable to the moving party that the jury is not required to believe.” Reeves v. Sanderson
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`Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000).
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`In addition, where, as here, “the jury has deliberated in the case and actually returned its
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`verdict in favor of the non-movant,” the moving party’s burden is especially heavy. Cash, 654
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`F.3d at 333 (internal citations and quotations omitted). The court must, in these circumstances,
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`“give deference to all credibility determinations and reasonable inferences of the jury” and may
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`set aside a verdict only if there is “such a complete absence of evidence supporting the verdict that
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`4
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`the jury’s findings could only have been the result of sheer surmise or conjecture, or the evidence
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`in favor of the movant is so overwhelming that reasonable and fair minded [persons] could not
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`arrive at a verdict against [it].” Brady v. Wal–Mart Stores, Inc., 531 F.3d 127, 133 (2d Cir. 2008)
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`(internal quotation marks and citation omitted); see also Claudio v. Mattituck–Cutchogue Union
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`Free Sch. Dist., 955 F. Supp. 2d 118, 132 (E.D.N.Y. 2013) (“Generally, a court reviewing such a
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`motion must defer to all credibility determinations and reasonable inferences that the jury may
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`have drawn at trial.”). Put another way, a court may grant a Rule 50 motion only if, after “viewing
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`the evidence in the light most favorable to the non-movant, [it] concludes that a reasonable juror
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`would have been compelled to accept the view of the moving party.” Cash, 654 F.3d at 333
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`(quotation marks and citation omitted).
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`B. Defendants Failla and Tellado Are Entitled to Judgment as a Matter of Law
`With Respect to Their Verdicts for Failure to Intervene in Plaintiff’s False
`Arrest
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`Defendants argue that Failla and Tellado are entitled to judgment as a matter of law with
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`respect to the jury’s verdicts finding them liable for failing to intervene in Plaintiff’s arrest.
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`Defendants maintain, inter alia, that because both officers arrived at the scene late, they had no
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`knowledge or reason to believe that probable cause to arrest Plaintiff was lacking, and that
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`therefore, these officers could not have been found liable for failing to intervene. (Defs.’ Mot.,
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`Dkt. 115, at 11-12.) The Court agrees.
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`A claim for false arrest “rest[s] on the Fourth Amendment right of an individual to be free
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`from unreasonable seizures, including arrest without probable cause.” Morris v. Silvestre, 604
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`Fed. App’x 22, 24 (2d Cir. 2015) (summary order) (quoting Weyant v. Okst, 101 F.3d 845, 852
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`(2d Cir. 1996)). Probable cause to arrest exists where the arresting officers have “knowledge or
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`reasonably trustworthy information of facts and circumstances that are sufficient to warrant a
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`person of reasonable caution in the belief that the person to be arrested has committed or is
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`committing a crime.” Jenkins v. City of New York, 478 F.3d 76, 84–85 (2d Cir. 2007) (quoting
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`Weyant, 101 F.3d at 852). Probable cause must be evaluated based on the “totality of the
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`circumstances,” United States v. Thomas, 788 F.3d 345, 350 (2d Cir. 2015), including the facts
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`available to the officer or officers at the time of the arrest, Jenkins, 478 F.3d at 87.
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`“Liability may attach where an officer fails to intervene, but observes or has reason to know
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`. . . that a citizen has been unjustifiably arrested,” provided that the officer “had a reasonable
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`opportunity to intervene to prevent the violation from happening.” Sanabria v. Tezlof, 11-CV-
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`6578, 2016 WL 4371750, at *5 (S.D.N.Y. Aug. 12, 2016); see also Morris v. City of New York,
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`14-CV-1749, 2015 WL 1914906, at *5 (E.D.N.Y. Apr. 27, 2015) (describing the “affirmative duty
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`[of law enforcement officials] to intervene to protect the constitutional rights of citizens from
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`infringement by other law enforcement officers in their presence” if there was a realistic
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`opportunity to intervene). Additionally, a supervisor may be held liable if he is a “direct
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`participant” in a constitutional violation such as a false arrest, meaning that he “authorizes, orders,
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`or helps others to do the unlawful acts, even if he . . . does not commit the acts personally.”
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`Terebesi v. Torreso, 764 F.3d 217, 234 (2d Cir. 2014).
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`1. Defendant Failla – Failure to Intervene in Plaintiff’s False Arrest
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`The Court finds that Defendant Failla is entitled to judgment as a matter of law. It is
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`undisputed that Failla arrived after the incident had spilled out into the street. At that time, Failla
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`saw Plaintiff standing in the middle of the street with a circle of police officers around him.
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`(1/29/16 Tr. 156–58, Failla.)3 He saw Plaintiff “flailing and punching with closed fists at the other
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`officers.” (Id.) Failla was trying to “assess the whole situation.” (Id. at 159.) He did not see
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`“anybody with anything in their hand.” (Id.) At some point thereafter, Defendant Heerey,
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`3 The pages cited in the transcripts refer to internal pagination.
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`Detective Russo, and a “couple of other police officers” brought Plaintiff to the ground. (Id. at
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`160–61.) Plaintiff was still “rolling and flailing his arms,” so Failla, rather than help restrain
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`Plaintiff, “thought it better to spray [Plaintiff] in the face with pepper spray” in order to stop
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`Plaintiff from “resisting arrest.” (Id. at 161.) At that point, “they were able to get [Plaintiff]
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`handcuffed and then he [lay] . . . on the ground for a minute.” (Id. at 163.)
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`Even though there was sufficient evidence for the jury to find that Failla was guilty of
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`excessive force, as discussed in Section C, infra, the evidence was insufficient to find that Failla
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`knew or had reason to know that there was no probable cause to arrest Plaintiff. Because of his
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`late arrival to the scene, Failla missed the entire interaction between Plaintiff and the officers inside
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`the house, which led to Plaintiff being arrested and escorted outside by the officers in custody.
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`Failla testified that he did not know what had happened before he arrived, id. at 159, and did not
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`know why Plaintiff was being arrested, id. at 161 (“I can’t testify to arrest because . . . I don’t know
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`exactly what happened on the scene[.]”); (id. at 164) (“Again, like I previously testified, I didn’t
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`know at the time what he was being apprehended for.”).) Relatedly, there was no evidence at trial
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`that the other officers said anything to Failla suggesting that there was no probable cause for
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`Plaintiff’s arrest. Furthermore, the jury’s answers in the Special Verdict Sheet contradict its
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`verdict finding that Failla was liable for false arrest. (Special Verdict Sheet, Dkt. 99, at 6.)
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`Although the jury found that Failla did not believe that Plaintiff had assaulted Czulada, shoved
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`Reo, or thrown punches at officers in the street, it did find that Failla believed that Plaintiff was
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`resisting arrest while out in the street. (Id.)
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`Here, in light of the evidence presented at the trial and the jury’s finding that Failla believed
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`that Plaintiff was resisting arrest, a “reasonable juror” would have been compelled to accept
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`Defendants’ view that Failla: (1) had no knowledge or reason to know that the Defendant officers
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`lacked probable cause to arrest Plaintiff; and (2) knew or believed, at a minimum, that Plaintiff
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`was resisting arrest while outside the house and that Plaintiff’s arrest was, therefore, legal, i.e.,
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`supported by probable cause. This Is Me, Inc. v. Taylor, 157 F.3d 139, 142 (2d Cir. 1998) (citing
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`Piesco v. Koch, 12 F.3d 332, 343 (2d Cir.1993)). Accordingly, the Court finds that there was
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`insufficient evidence for the jury to find Failla liable for failing to intervene to prevent Plaintiff’s
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`false arrest.
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`2. Defendant Tellado – Failure to Intervene in Plaintiff’s False Arrest
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`The Court also finds that Tellado is entitled to judgment as a matter of law. The evidence
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`introduced at trial established that Tellado arrived at the scene at the end of the altercation. Tellado
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`testified that, upon his arrival, he entered the house and observed two handcuffed individuals, but
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`did not see Plaintiff inside. (2/1/16 Tr. 178, Tellado.) Tellado then left the house because the
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`situation was “calming down.” (Id. at 180.) When Tellado walked outside, he saw “a certain
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`commotion” with three or four officers struggling with somebody who was lying on the ground
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`handcuffed. (Id. at 183–84.) That was the first time he saw Plaintiff at the scene. (Id. 178, 183-
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`84.) At some point, an officer told Tellado that “the reason [Plaintiff] was in handcuffs is because
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`he hit a police officer.” (Id. at 187.) After Plaintiff told Tellado that he (Plaintiff) was a police
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`officer, Tellado “asked the officers to assist [Plaintiff] and lift him up on his own two feet”, and
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`“asked them to remove the cuffs.” (Id. at 190.) Plaintiff’s testimony partially corroborates
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`Tellado’s testimony: Plaintiff testified that the first time he saw Tellado was after Plaintiff had
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`been handcuffed and pepper-sprayed, and that after Tellado saw Plaintiff’s police identification,
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`he ordered that Plaintiff be released. (1/27/16 Tr. 64-67, Jackson.) There was no testimony or
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`other evidence indicating that Tellado witnessed anything that happened inside the house or
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`Plaintiff’s arrest and handcuffing outside the house, or that Tellado was informed of circumstances
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`negating probable cause to arrest Plaintiff.
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`Based on the evidence adduced at trial, no reasonable jury could have concluded that
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`Tellado knew or had reason to believe that Plaintiff’s arrest lacked probable cause and that he
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`(Tellado), therefore, should have intervened to prevent the arrest.4 Nor could a reasonable juror
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`have found that Tellado was liable in his supervisory capacity for the arrest, given the absence of
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`evidence that Tellado was a “direct or indirect participant” in the arrest. Provost v. City of
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`Newburgh, 262 F.3d 146, 155 (2d Cir. 2001) (holding that an officer committing false arrest must
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`have direct participation, such as “personal participation by one who has knowledge of the facts
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`that rendered the conduct illegal,” or indirect participation, such as “ordering or helping others to
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`do the unlawful acts”).
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`In sum, the Court finds that Defendants Failla and Tellado are entitled to judgment as a
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`matter of law in their favor with respect to Plaintiff’s claims of failure to intervene to prevent false
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`arrest.
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`C. Defendants Reo and Failla Are Not Entitled to Judgment as a Matter of Law
`With Respect to Their Verdicts for Use of Excessive Force
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`Defendants argue that there is insufficient evidence in the record to sustain a verdict against
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`Defendants Reo and Failla for excessive force. (Defs.’ Mot., at 13.) The Court disagrees.
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`4 Although, as indicated in the Special Verdict Sheet, the jury found that Tellado did not
`believe that Plaintiff had assaulted Czulada, shoved Reo, thrown punches at officers in the street,
`or resisted arrest (Special Verdict Sheet, at 1), these findings do not equal a finding that Tellado
`knew, or even should have known, that there was no probable cause to arrest Plaintiff. Indeed, the
`jury’s findings are consistent with the conclusion that Tellado, having arrived on the scene late,
`simply had no idea if there was probable cause to arrest Plaintiff—which is not the same as Tellado
`knowing that, in fact, there was no probable cause, as required to trigger a duty to intervene.
`Sanabria, 2016 WL 4371750, at *5 (“Liability may attach where an officer fails to intervene, but
`observes or has reason to know . . . that a citizen has been unjustifiably arrested[.]”). Furthermore,
`even though the jury’s finding that Tellado did not believe that Plaintiff had assaulted Czulada
`suggests that it did not credit Tellado’s testimony that he was told that Plaintiff had punched an
`officer, this finding does not eliminate the possibility that the jury credited Tellado’s testimony,
`but concluded that Tellado did not know or believe that the officer whom Plaintiff had allegedly
`punched was Czulada.
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`9
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`To prevail on a § 1983 claim of excessive force, a plaintiff must show that the defendant
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`used physical force against him that was objectively unreasonable in the circumstances. Hayes v.
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`Cnty. of Sullivan, 853 F. Supp. 2d 400, 430 (S.D.N.Y. 2012) (citing Graham v. Connor, 490 U.S.
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`386, 394-95 (1989)). To determine whether the use of force was unreasonable, a court must
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`consider the specific facts in each case, “including the severity of the crime at issue, whether the
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`suspect poses an immediate threat to the safety of the officers or others, and whether [the suspect]
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`is actively resisting arrest or attempting to evade arrest by flight.” Hayes v. N.Y.C. Police Dep’t,
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`212 Fed. App’x 60, 61-62 (2d Cir. 2007). When deciding whether the use of force was reasonable
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`in a given case, a court “[must] allow[ ] for the fact that police officers are often forced to make
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`split-second judgments . . . about the amount of force that is necessary in a particular situation.”
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`Plumhoff v. Rickard, 134 S. Ct. 2012, 2020 (2014). However, “[o]fficers may not . . . gratuitously
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`inflict pain in a manner that is not a reasonable response to the circumstances.” Diaz v. City of
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`N.Y., 00–CV–2944, 2006 WL 3833164, at *6 (E.D.N.Y. Dec. 29, 2006) (citing Amnesty Am. v.
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`Town of W. Hartford, 361 F.3d 113, 124 (2d Cir. 2004)).
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`“It is widely recognized that all law enforcement officials have an affirmative duty to
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`intervene to protect the constitutional rights of citizens from infringement by other law
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`enforcement officers in their presence.” Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994). To
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`establish a claim for excessive force under a failure to intervene theory, a plaintiff must prove that
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`the officer (1) observed, or had reason to know of, the alleged violation, and (2) there was a realistic
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`opportunity to intervene to prevent the harm from occurring. Smith v. P.O. Canine Dog Chas, 02-
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`CV-6240, 2004 WL 2202564, at *9 (S.D.N.Y. Sept. 28, 2004). Whether “an officer . . . was
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`capable of preventing the harm being caused by another officer is an issue of fact for the jury,
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`unless, considering all the evidence, a reasonable jury could not possibly conclude otherwise.” Id.
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`(quoting Anderson, 17 F.3d at 557).
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`1. Defendant Reo – Use of Excessive Force
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`Defendants argue that the evidence was insufficient to support the jury’s finding that
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`Defendant Reo used excessive force as alleged by Plaintiff, namely, by striking Plaintiff in the
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`back of the head with a baton in response to Plaintiff complaining about the officers’ treatment of
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`one of Plaintiff’s party guests. Defendants explain that Reo was outside Plaintiff’s house during
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`the entire encounter and therefore could not have hit Plaintiff in the back of his head inside the
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`house, as alleged. Defendants contend that the evidence shows that Reo stood on the sidewalk, by
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`the base of the driveway, to prevent anyone from “going towards the house[,]” and that Reo’s
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`interaction with Plaintiff occurred outside on the sidewalk. (Defs.’ Mot., at 14.)
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`As an initial matter, the Court observes that even if Reo was outside, his testimony places
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`him near the entrance to the house, where the excessive force occurred. (1/29/16 Tr. 179, Reo) (“I
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`attempted to get inside. The house was just filled with people. More people were trying to come
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`inside, and I thought it would be better to stay outside and make sure nobody else entered.”). In
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`fact, Reo admits that he could see into the house from the spot where he was standing. (Id. at 180.)
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`Reo’s testimony suggests that even if he was standing by the driveway, he had to be close enough
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`to the door to effectively block people from getting into the house.
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`Reo and Plaintiff offered differing accounts of what occurred around the time of the alleged
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`use of excessive force, although their stories start off the same. Reo and Plaintiff both testified
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`about Plaintiff’s reaction to one of Plaintiff’s party guests, Taimar Bonaparte, being arrested and
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`removed from the house. Reo testified that he heard Plaintiff yelling, “You all can’t fucking do
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`that, you all can’t do that,” in the direction of two officers who were taking a shirtless man in
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`handcuffs out of the house. (Id. at 182.) Plaintiff testified that, while standing near the doorway
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`to his home, he saw two officers taking Bonaparte out of the house and verbally protested the
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`arrest. (1/27/16 Tr. 54-55, Jackson.)
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`Plaintiff’s and Reo’s stories then diverge widely. Reo testified that when Plaintiff tried to
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`enter the house, Reo would not let him through. (1/29/16 Tr. 182, Reo.) Reo told Plaintiff, who
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`was trying to push past him, “You’re not getting by me.” (Id.) Reo testified that Plaintiff “g[ave]
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`[Reo] a two-handed shove to [his] chest.” (Id. at 182-83) At that point, “two, maybe three officers
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`grabbed [Plaintiff] and tried to place him in handcuffs.” (Id. at 185.) When Reo regained his
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`footing, he attempted to arrest Plaintiff for having shoved him. (Id. at 185–86.) Reo approached
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`and “tried to grab [Plaintiff’s] arm” and “tried to grab a leg.” (Id. at 190.) Plaintiff “went down
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`to the ground.” (Id. at 190–91.) Reo testified that he was not inside the house and did not hit
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`Plaintiff with his baton. (Id. at 191.)
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`Plaintiff testified that right after he protested Bonaparte’s arrest by the two officers, he was
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`“hit in the back of the head with something” by someone he could not see. (1/27/16 Tr. 55,
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`Jackson.) Plaintiff stated that he was standing outside, near the doorway to the house at the time
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`that he was hit. (Id.) In response to being hit, Plaintiff moved in the direction of the street and
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`knelt down on the curb. Plaintiff testified that officers then started hitting him with batons in the
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`back of his legs and on his back, hitting him “upward of 20, 30 times.” (Id. at 57.) Plaintiff,
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`himself an NYPD officer, could tell by the pants and shoes of the people hitting him that they were
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`officers. (Id.) Plaintiff laid on his stomach in the street while a semicircle of officers proceeded
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`to hit him with batons and to roll the batons over the backs of his ankles. (Id. at 58–60.) Two
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`officers were positioned with their knees on his back, while the officers tried to get his arms. (Id.
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`at 60.)
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`Despite the differing accounts, the Court finds that there was sufficient evidence for the
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`jury to find that Reo used excessive force against Plaintiff. The jury was free to accept or reject,
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`in whole or part, either Reo’s or Plaintiff’s testimony. Haywood v. Koehler, 78 F.3d 101, 105 (2d
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`Cir. 1996) (“[I]n most trials . . . the jurors [a]re not required to accept the entirety of either side’s
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`account, but [a]re free to accept bits of testimony from several witnesses and to make reasonable
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`inferences from whatever testimony they credit[ ].”); Tolbert v. Queens Coll., 242 F.3d 58, 70 (2d
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`Cir. 2001) (“The court cannot assess the weight of conflicting evidence, pass on the credibility of
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`the witnesses, or substitute its judgment for that of the jury.” ); (see Jury Instructions, Dkt. 97, at
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`5-6 (instructing jury that they may accept or reject, in whole or part, any witness’s testimony)).
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`Indeed, even if the jury credited all of Reo’s testimony, except his denial about hitting Plaintiff in
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`the head, it reasonably could have found that Reo struck Plaintiff in the back of the head after
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`Plaintiff protested the officers’ treatment of Bonaparte. Although Plaintiff did not see who struck
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`him, Reo placed himself next to or near Plaintiff at the time Bonaparte was brought outside, and
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`also testified about hearing Plaintiff’s protest of the officers’ treatment of Bonaparte.
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`Additionally, the jury could have found that Reo was one of the officers who beat Plaintiff
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`with their batons after Plaintiff was on the ground in the street. Although Reo testified that he
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`merely watched the situation in the street (1/29/16 Tr. 191, Reo)5, the jury could have rejected that
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`5 As reflected in the Special Verdict Sheet, the jury found that Reo believed that Plaintiff
`was throwing punches at officers in the street and resisting arrest. (Special Verdict Sheet, at 6.)
`While this finding suggests that the jury may have credited Reo’s claim that he only watched, and
`did not participate, in the beating of Plaintiff on the ground, it does not undermine their finding of
`excessive force as to Reo. The jury reasonably could have found that Reo both saw Plaintiff
`resisting arrest and then joined the others in beating him—the two are not mutually exclusive—or
`even that because Reo saw Plaintiff resisting arrest, Reo decided to join the beating. Although the
`jury could have found that Reo’s belief that Plaintiff was throwing punches could have justified
`the degree of force used by him or others, the jury was also free to reject that conclusion based on
`its assessment of all of the evidence.
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`testimony, especially if it found that Reo had hit Plaintiff in the back of the head with his baton
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`only moments earlier.
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`In sum, the evidence here was sufficient for the jury to find that Reo had used excessive
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`force against Plaintiff.
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`2. Defendant Failla – Use of Excessive Force
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`Defendants also argue that there is insufficient evidence that Defendant Failla used
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`excessive force on Plaintiff, given that Plaintiff could not identify the officer who pepper-sprayed
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`him. (Defs.’ Mot., at 16-17.) Defendants note that there were “many officers” trying to apprehend
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`Plaintiff and even though “Failla is pretty distinctive in appearance,” Plaintiff “did not provide any
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`characteristics of the person who allegedly pepper-sprayed him.” (Id. at 18.)
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`Defendants’ argument ignores the most damning evidence: Failla admitted to pepper-
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`spraying Plaintiff. Failla testified at trial that, instead of helping his fellow officers physically
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`restrain Plaintiff, as Plaintiff was resisting arrest, Failla “thought it better to spray [Plaintiff] in the
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`face with pepper spray.” (1/29/16 Tr. 161, Failla.) Plaintiff testified that he was handcuffed at the
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`time that he was pepper-sprayed. (1/27/16 Tr. 62, Jackson) (stating that after he was handcuffed,
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`he said “Guys, this was unnecessary . . . I’m a fellow cop, too” and “then they pepper sprayed
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`me”). Plaintiff also testified that he willingly allowed himself to be handcuffed, and was not
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`resisting the officers at that point. (Id. at 62) (stating that he “stuck [his] arm out” and “let them
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`put the cuffs [on] because “I figured it would be over and we can straighten this out”).
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`Furthermore, despite being trained to provide water to persons who have been pepper-sprayed, so
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`that they can wash out their eyes, Failla did not do so after pepper-spraying Plaintiff. This was
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`because Failla “didn’t have [it] at the scene” and he knew an ambulance would be going to the
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`stationhouse. (1/29/16 Tr. 167, Failla.) Instead, Failla walked away from Plaintiff “shaking [his]
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`head in disgust” because he had “never seen an individual who calls himself a police officer act
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`that way to on-duty police officers.” (Id.)
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`Based on the evidence introduced at trial, and notwithstanding conflicts in that evidence,
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`it would have been reasonable for the jury to find that Failla gratuitously pepper-sprayed Plaintiff
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`after Plaintiff had allowed himself to be handcuffed and/or in response to Plaintiff’s comment
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`about the arrest being unnecessary. It was “fully within the jury’s fact-finding discretion to credit
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`portions” of Plaintiff’s testimony, particularly those portions regarding the use of pepper spray that
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`were corroborated by Failla. Hoyte v. Nat’l R.R. Passenger Corp., 04–CV–5297 (GEL), 2006 WL
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`2053383,