11-1567-cv
Weather v. City of Mount Vernon

                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1 .
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 11th day of April, two thousand twelve,

Present:    JOHN M. WALKER, JR.,
            CHESTER J. STRAUB,
            ROSEMARY S. POOLER,
                        Circuit Judges.
_____________________________________________________

PAUL WEATHER,

                                  Plaintiff-Appellee,

                           -v-                                                11-1567-cv

CITY OF MOUNT VERNON AND MICHAEL MARCUCILLI, SERGEANT,

                                  Defendants-Appellants.


Appearing for Appellant:          Hina Sherwani, for Loretta J. Hottinger, Office of the Corporation
                                  Counsel, City of Mount Vernon, Mount Vernon, N.Y.

Appearing for Appellee:           Barry R. Strutt, Young & Bartlett, LLP, White Plains, N.Y.


        Appeal from the United States District Court for the Southern District of New York
(Patterson, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
        Plaintiff-appellee Paul Weather brought claims against defendants-appellants Sergeant
Michael Marcucilli and the City of Mount Vernon alleging, inter alia, excessive force, pursuant
to 42 U.S.C. § 1983, and a state law claim of battery. A jury found in Weather’s favor on these
counts after trial. The district court, following the procedure set forth in Stephenson v. Doe, 332
F.3d 68, 81 (2d Cir. 2003), asked the jury questions relevant to qualified immunity via special
interrogatories. On the basis of the jury’s answers to those special interrogatories, it denied
qualified immunity to Marcucilli. We assume the parties’ familiarity with the underlying facts,
procedural history, and specification of issues for review.

       Appellants’ first challenge is to the district court’s denial of qualified immunity. When a
defendant invokes qualified immunity, we make the following analysis, deriving from Saucier v.
Katz, 533 U.S. 194 (2001):

       First, a court must decide whether the facts that a plaintiff has alleged or shown make out
       a violation of a constitutional right. Second . . . the court must decide whether the right at
       issue was ‘clearly established’ at the time of defendant's alleged misconduct. Qualified
       immunity is applicable unless the official's conduct violated a clearly established
       constitutional right.

 Pearson v. California, 555 U.S. 223, 232 (2009) (internal citations omitted). Courts can
undertake the inquiry in any sequence. Id. at 236. Because the “use of force is contrary to the
Fourth Amendment if it is excessive under objective standards of reasonableness,” Saucier, 533
U.S. at 202, the two Saucier inquiries may “ultimately converge on one question in excessive
force cases: Whether in the particular circumstances faced by the officer, a reasonable officer
would believe that the force employed was lawful,” Cowan ex rel. Estate of Cooper v. Breen,
352 F.3d 756, 764 n.7 (2d Cir. 2003). Still, we must address both prongs of the inquiry.
Oliveira v. Mayer, 23 F.3d 642, 648-49 (2d Cir. 1994). We review a denial of qualified
immunity de novo. Arlio v. Lively, 474 F.3d 46, 51 (2d Cir. 2007).

        The majority of appellants’ arguments rest on the contention that Weather’s
constitutional rights were not violated by Marcucilli’s use of force. But such contention is
largely foreclosed by the jury’s verdict, which found that Weather “proved by a preponderance
of the evidence that the defendant, Sergeant Marcucilli, intentionally or recklessly applied
excessive force on Mr. Weather on January 12, 2007 in a manner that was objectively
unreasonable under the circumstances.” Only an appeal from the denial of a motion under Fed.
R. Civ. Pro. 50 to set aside the verdict would theoretically avail appellants on this prong. Such a
standard is high, however:

       Where, as here, a jury has deliberated in a case and actually returned its verdict, a district
       court may set aside the verdict pursuant to Rule 50 only where 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 there is such an overwhelming amount of
       evidence in favor of the movant that reasonable and fair minded men could not arrive at a
       verdict against him.”

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AMW Materials Testing, Inc. v. Town of Babylon, 584 F.3d 436, 456 (2d Cir. 2009) (quoting
Cross v. New York City Transit Auth., 417 F.3d 241, 248 (2d Cir. 2005)).

        We find the verdict was amply supported by the record and by the case law on excessive
force. In Graham v. Conner, the Supreme Court held that a reasonableness standard applied to
Fourth Amendment excessive force claims. 490 U.S. 386, 396 (1989). The Court indicated that
three factors to consider in assessing reasonableness include: “the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of the officers or others, and whether
he is actively resisting arrest or attempting to evade arrest by flight.” Id.

        As to the nature and the severity of the crime, appellants argue that “from Sergeant
Marcucilli’s perspective, plaintiff was committing crimes of impersonating a police officer
without identification,” as well as disorderly conduct. But the evidence amply supports the jury’s
finding that appellants did not prove that Marcucilli “heard, or was told, that plaintiff claimed he
was an active Mount Vernon police officer.” As to whether Weather was guilty of disorderly
conduct or whether Marcucilli believed he was, the jury specifically rejected Marcucilli’s
testimony that “there was a crowd surrounding Mr. Weather and the crowd was chanting ‘fuck
the police.’” The jury also found Weather was not attempting to open the locked doors to the
school. Substantial trial evidence supported such findings. Even if Weather were engaged in
disorderly conduct, the latter is not even a crime in New York state, but a non-criminal violation.
See N.Y. Penal Law. § 240.20. These findings, too, were well supported in the record. The
severity of the crime, then, if any, must be low.

        Graham’s second factor is whether the suspect poses an immediate threat to the safety of
the officers or others. Here, appellants suggest that the jury found in their favor by virtue of the
fact the jury answered “that a reasonable police officer facing the circumstances confronting
Sergeant Marcucilli would have believed that he had sufficient grounds to remove plaintiff from
the area and direct him toward the wall, without making further inquiry.” The rest of the jury
verdict makes clear, however, that this is not what Marcucilli did. The jury found, and was
entitled to find based on the evidence, that Marcucilli “twisted plaintifs arm behind plaintiff’s
back” and “shove[d] or push[ed] plaintiff forcefully into the brick wall outside the school’s
entrance.” That an officer may have been justified in “direct[ing] plaintiff toward the wall,
without making further inquiry” does not mean that an officer would have been justified in
twisting Weather’s arm and slamming him into the brick wall. The evidence presented to the jury
completely supports such findings. In the same vein, we cannot credit appellants’ repeated
reference to Marcucilli’s actions as a “a routine police procedure or ‘escort move.’” That
something is standard does not mean it is always acceptable; merely recharacterizing it as an
ordinary police exercise does nothing to tell us whether it was justified under the circumstance,
nor does it undermine the fact that the jury found it was not. The evidence fully supports the
jury’s finding that Weather was not posing an immediate threat to himself or others.

       The third Graham factor involves whether a person is actively resisting arrest or
attempting to evade arrest by flight. Appellants’ arguments have no more merit on this point.
Here, appellants suggest that the fact Weather was “actively resisting is evidenced” by the fact

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that he was not calm during his testimony. The demeanor of a witness and what it means about
that witness’s version of events could not be a more quintessential question for the jury. And the
jury’s findings strongly suggest they did not believe Weather was evading arrest. They found, at
a minimum, that Marcucilli did not hear or was not told that Weather was falsely claiming to be
an active police officer or that he was attempting to enter the locked doors of the school,
suggesting that even if Weather was resisting arrest, it was an arrest Marcucilli had no right to
make. Most crucially, Marcucilli did not arrest and did not even try to arrest Weather, even by
his own testimony or the testimony of the other officer. Substantial trial testimony clearly
supported a finding that Weather was not actively resisting arrest or attempting to evade arrest.

        We cannot say the jury’s findings as to whether force was excessive “could only have
been the result of sheer surmise and conjecture, or there is such an overwhelming amount of
evidence in favor of the movant that reasonable and fair minded men could not arrive at a verdict
against him.” AMW Materials Testing, Inc., 584 F.3d at 457. The jury’s finding that force was
excessive must be upheld.

         Our next inquiry is whether, having determined that Weather’s rights were violated,
“whether the officials’ actions violated ‘clearly established statutory or constitutional rights of
which a reasonable person would have known.’” Jones v. Parmley, 465 F.3d 46, 55 (2d Cir.
2006) (quoting Hope v. Pelzer, 536 U.S. 730, 739 (2002)). This inquiry tends to converge with
the first in excessive force cases, with the question ultimately being whether, in the particular
circumstances faced by the officer, a reasonable officer would believe that the force employed
was lawful. Cowan, 352 F.3d at 765 n.7. We have here a well-developed factual record and
special interrogatories which indicate that Marcucilli did not “reasonably believe that a
reasonably prudent police officer would have acted . . . ” Oliveira, 23 F.3d at 648-49.
Appellants point to no evidence in the record which support a finding that a reasonable officer in
Marcucilli’s position would not have known that his behavior was unlawful. Further, all of the
circumstances which appellants point out as evidence that supported Marcucilli’s use of force
were either expressly or implicitly rejected by the jury, whose findings were amply supported by
the trial evidence.

         The law protecting a person against excessive force in this situation is clearly established.
Weather was breaking no law, was not resisting arrest, and was not placing himself or others in
danger. No reasonable officer would believe that “twisting Mr. Weather’s arm behind his back
and pushing or shoving him into the brick wall outside the school” was a lawful use of force in
this circumstance, and appellants point us to no cases that indicate otherwise. Further, as the
district court wrote on this point that “no evidence was presented at trial to suggest that Sergeant
Marcucilli made a mistake regarding his legal obligations such that would excuse his actions.”
Any “belief that his conduct was lawful” would not be reasonable, given the facts found by the
jury. Cowan, 761 F.3d at 761. Qualified immunity was appropriately denied here.




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       We have examined the remainder of appellants’ arguments and find them to be without
merit. Accordingly, the judgment of the district court hereby is AFFIRMED.


                                                 FOR THE COURT:
                                                 Catherine O’Hagan Wolfe, Clerk




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