13-3361-cv
O‘Hara v. City of New York


                              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
ASUMMARY 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 18th day of June, two thousand fourteen.

PRESENT: REENA RAGGI,
                 GERARD E. LYNCH,
                 RAYMOND J. LOHIER, JR.,
                                 Circuit Judges.
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PAUL O‘HARA,
                                 Plaintiff-Appellee,

                             v.                                          No. 13-3361-cv

THE CITY OF NEW YORK, NEW YORK CITY POLICE
DEPARTMENT, POLICE OFFICERS JOHN DOE # 1–6,
MICHAEL MCAVOY, P.O., P.O. MICHAEL MALONE,
P.O. JOHN DOE # 1–4,
                                 Defendants-Appellants.*
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APPEARING FOR APPELLANTS:                         DRAKE A. COLLEY (Edward F.X. Hart, on the
                                                  brief), of Counsel, for Zachary Carter,
                                                  Corporation Counsel of the City of New York,
                                                  New York, New York.


*
    The Clerk of Court is directed to amend the official caption as shown above.

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APPEARING FOR APPELLEE:                   JON L. NORINSBERG, ESQ., New York, New
                                          York.

       Appeal from a judgment of the United States District Court for the Eastern District

of New York (Tucker L. Melançon, Judge).**

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on August 22, 2013, is AFFIRMED.

       Defendant-appellant Michael McAvoy was found liable after a jury trial of having

used excessive force in arresting plaintiff-appellee Paul O‘Hara in violation of the Fourth

Amendment, see 42 U.S.C. § 1983, and of having committed state-law battery. On

appeal, McAvoy challenges the denial of his post-verdict motion for qualified immunity

and the denial of his motion for a new trial. See Fed. R. Civ. P. 59. We assume the

parties‘ familiarity with the facts and the record of prior proceedings, which we reference

only as necessary to explain our decision to affirm largely for the reasons stated by the

district judge in his Memorandum and Order dated August 22, 2013.

1.     Qualified Immunity

       Because qualified immunity affords ―immunity from suit rather than a mere defense

to liability,‖ Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (emphasis in original), it is

usually invoked before trial. Where, however, immunity depends on disputed facts, the

availability of that shield may be determinable only after trial. This is such a case because

of the sharply conflicting accounts of McAvoy and O‘Hara as to the former‘s use of

**
  The Honorable Tucker L. Melançon, of the United States District Court for the Western
District of Louisiana, sitting by designation.

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physical force in effecting the latter‘s arrest. In finding McAvoy to have used excessive

force, the jury, in responses to interrogatories, specifically rejected the officer‘s testimony

that he punched O‘Hara only because O‘Hara had approached McAvoy in a threatening

manner, i.e., with fists clenched, at a rapid pace until he was face-to-face with the officer at

a close distance, whereupon O‘Hara chest-bumped McAvoy. Nevertheless, because the

jury also (a) found that O‘Hara was struggling with McAvoy when he was punched, (b) did

not find McAvoy liable for assault, and (c) declined to award punitive damages, McAvoy

submits that he is entitled to qualified immunity. Specifically, he contends that the jury

erred as a matter of law in finding McAvoy to have used excessive force, and that the

district court erred in failing to recognize that officers of reasonable competence could

have disagreed as to the degree of force necessary to effect O‘Hara‘s arrest. See Ashcroft

v. al-Kidd, 131 S. Ct. 2074, 2080 (2011) (recognizing qualified immunity to apply where

(1) facts fail to show defendant‘s violation of constitutional rights or (2) right was not

clearly established at time of defendant‘s actions); accord Zalaski v. City of Hartford, 723

F.3d 382, 388 (2d Cir. 2013).

       While we review a qualified immunity claim de novo, see Zalaski v. City of

Hartford, 723 F.3d at 388, where, as here, we do so after trial, we must view all disputed

facts in the light most favorable to O‘Hara, the prevailing party, see generally Cash v. Cnty.

of Erie, 654 F.3d 324, 333 (2d Cir. 2011) (observing in context of Rule 50 motion that,

after trial, court may grant relief from verdict only if evidence, even when viewed in light

most favorable to prevailing party, would have compelled a reasonable juror to find in

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favor of movant); Zellner v. Summerlin, 494 F.3d 344, 370 (2d Cir. 2007). When we do

that here, we cannot conclude, as McAvoy urges—largely by casting the record in the light

most favorable to himself—that no reasonable jury could have found him to have used

excessive force in arresting O‘Hara.

       Specifically, if we assume, as we must, that in effectuating O‘Hara‘s arrest for a

relatively minor matter, McAvoy—who was one of six armed officers on the

scene—punched O‘Hara in the face without provocation and then proceeded to punch him

repeatedly after the 17-year old fell to the ground, we conclude that a reasonable jury could

have found excessive force. See O‘Bert ex rel. Estate of O‘Bert v. Vargo, 331 F.3d 29, 37

(2d Cir. 2003) (―‗With respect to a claim of excessive force‘ during arrest, in violation of

the Fourth Amendment, the standard is the ‗reasonableness [of the particular force used] at

the moment[.]‘‖ (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)) (alterations in

original)); see also Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 123 (2d Cir.

2004) (holding that officer effectuating arrest may not use more force than reasonable

under circumstances to take person into custody).

       The fact that the jury did not find McAvoy liable for assault or award punitive

damages did not compel it, as a matter of law, to reject O‘Hara‘s excessive force claim.

See Harris v. Niagara Mohawk Power Corp., 252 F.3d 592, 598 (2d Cir. 2001) (holding

that ―proper approach when faced with seemingly inconsistent verdicts is not to credit one

finding and vacate the other‖ but rather ―a reviewing court must adopt a view of the case, if

there is one, that resolves any seeming inconsistency‖ (internal quotation marks omitted)).

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Here, to find McAvoy liable for assault, the jury was instructed that they had to find that

McAvoy intentionally placed O‘Hara in fear of imminent harm or offensive contact.

Insofar as the alleged attack occurred without provocation, a jury could have reasonably

found both that McAvoy intentionally or recklessly used excessive force against O‘Hara,

without also finding that O‘Hara was placed in imminent fear of harm. Similarly, we

identify no inconsistency in the jury‘s excessive force verdict, which focuses on whether

the use of force was reasonable, and its conclusion that O‘Hara failed to show that McAvoy

―acted maliciously or wantonly in using excessive force,‖ J.A. 1230, so as to warrant the

imposition of punitive damages. Cf. Fiacco v. City of Rensselaer, 783 F.2d 319, 325 (2d

Cir. 1986) (holding that jury verdict finding officer liable for excessive force was not

inconsistent with verdict that officer was not liable for malicious assault).

       Further, like the district court, we conclude that no reasonable officer confronting

the circumstances of this case, viewed most favorably to O‘Hara, could have thought that

the law authorized him repeatedly to punch an unarmed, non-menacing 17-year old in

effecting an arrest. See Sullivan v. Gagnier, 225 F.3d 161, 166 (2d Cir. 2000) (holding

that force used ―must be reasonably related to the nature of the resistance and the force

used, threatened, or reasonably perceived to be threatened, against the officer‖).

       In urging otherwise, McAvoy emphasizes the jury finding that O‘Hara was

―struggling‖ when McAvoy punched him, arguing that a reasonable officer might have

understood O‘Hara to be resisting arrest. But O‘Hara testified that he was struggling to

avoid McAvoy‘s blows, and we must assume the jury credited that explanation. In such

                                              5
circumstances, McAvoy, as well as any reasonable officer in his position would have

understood that it was his own punches, not the arrest, that O‘Hara was struggling against.

In any event, if McAvoy wanted to be able to argue otherwise in support of qualified

immunity, it was his responsibility to request that interrogatories on that point be submitted

to the jury. See Zellner v. Summerlin, 494 F.3d at 368 (―To the extent that a particular

finding of fact is essential to a determination by the court that the defendant is entitled to

qualified immunity, it is the responsibility of the defendant to request that the jury be asked

the pertinent question.‖). The fact that the jury did not hold McAvoy liable for false arrest

does not, by itself, mean that it found O‘Hara to have resisted arrest, or McAvoy

reasonably to have believed that he was confronting such resistance. In the absence of

such findings, McAvoy cannot demonstrate that a reasonable officer in his position would

have understood that it was necessary to punch O‘Hara repeatedly to take him into police

custody. Resisting arrest cases cited by McAvoy are thus factually distinguishable. See,

e.g., Tracy v. Freshwater, 623 F.3d 90, 97 (2d Cir. 2010) (recognizing as reasonable

officer‘s use of flashlight to defend himself against person he correctly presumed to be a

fugitive from justice when that person made a quick and sudden movement as officer

attempted to effect arrest in circumstances where he was alone); Crowell v. Kirkpatrick,

No. 09-4100-cv, 400 F. App‘x 592, 595 (2d Cir. Nov. 15, 2010) (summary order)

(concluding that use of taser was reasonable where plaintiffs ―were actively resisting their

arrest‖).

       We therefore affirm the district court‘s denial of qualified immunity.

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2.     New Trial Motion

       McAvoy contends that the district court erred in denying him a new trial pursuant to

Fed. R. Civ. P. 59 based on (1) the erroneous exclusion of evidence, and (2) opposing

counsel‘s misconduct in summation. We review the denial of a Rule 59 motion for abuse

of discretion, see Cash v. Cnty. of Erie, 654 F.3d at 339–40, mindful that challenges to

evidentiary rulings and counsel arguments are themselves subject only to deferential

review, see Patterson v. Balsamico, 440 F.3d 104, 119 (2d Cir. 2006); Meloff v. N.Y. Life

Ins. Co., 240 F.3d 138, 148 (2d Cir. 2001).

       Here, the district court acted well within its discretion in not admitting purportedly

forged documents to impeach the credibility of a deceased deposition declarant because

(1) the documents had not been timely identified as trial exhibits, (2) defendants failed to

identify witnesses who could authenticate the documents or attest to their being forged, and

(3) the documents constituted extrinsic evidence on a matter bearing only on a witness‘s

credibility.   See Fed. R. Evid. 608(b); cf. Patterson v. Balsamico, 440 F.3d at 117

(affirming exclusion of testimony under Fed. R. Civ. P. 37(c)(1) for failure timely to

disclose witnesses as required by Fed. R. Civ. P. 26(a) where counsel provided insufficient

explanation for delay in disclosing witness and no continuance was requested).

       Nor was a new trial mandated by summation error. The remarks not objected to by

defendants do not manifest plain error. See Greenway v. Buffalo Hilton Hotel, 143 F.3d

47, 51 (2d Cir. 1998) (―[W]here . . . the complaining party failed to object at trial to the

[allegedly improper summation] statements, we may reverse only for plain error because

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that failure deprives the trial court of an opportunity to deal with those remarks then and

there.‖). As for the single preserved objection, we need not decide whether the challenged

rebuttal argument was unfair because, in any event, the district court‘s curative instruction

was sufficient to avoid undue prejudice. See Patterson v. Balsamico, 440 F.3d at 119

(identifying no abuse of discretion in denial of motion for new trial where, in light of

curative instruction, counsel‘s allegedly improper statements in summation ―did not create

sufficient undue prejudice or passion to warrant a new trial‖ (internal quotation marks

omitted)).

       We have considered McAvoy‘s remaining arguments and conclude that they are

without merit. Accordingly, we AFFIRM the judgment of the district court.

                                   FOR THE COURT:
                                   CATHERINE O‘HAGAN WOLFE, Clerk of Court




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