Cotto v. Town of Middletown Police Dept et al
Filing
203
ORDER denying 168 Motion for Judgment as a Matter of Law. Signed by Judge Stefan R. Underhill on 1/19/2016. (Buttrick, A.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ALEXANDER COTTO,
Plaintiff,
No. 3:10-cv-560 (SRU)
v.
CITY OF MIDDLETOWN, et al.,
Defendants.
RULING AND ORDER
The plaintiff, Alexander Cotto, brought a civil suit against the defendants, the City of
Middletown and several of its police officers, asserting various federal and state claims related to
their conduct during a traffic stop. (doc. 1) The matter proceeded to a jury trial against
Lieutenant Richard Davis, Officer Lee Buller, Officer Daniel Schreiner, and Officer Jason
Tetrault. After the close of Cotto‘s case, the defendants made a Rule 50 motion for judgment as a
matter of law on certain counts. The jury found in favor of Cotto and awarded him nominal and
punitive damages. (doc. 162) The jury then answered special interrogatories about the verdict.
(doc. 163) The defendants renewed their Rule 50 motion for judgment as a matter of law,
asserting that no reasonable jury could have found for Cotto on any of his Fourth Amendment
and invasion of privacy claims or found the malicious intent required for an award of punitive
damages, or alternatively, they argue that their actions were entitled to qualified immunity. (doc.
168)
For the foregoing reasons, the defendants‘ motion is denied in its entirety and the verdict
is sustained. The amount of punitive damages awarded, however, must be reduced.
I.
Standard of Review
Rule 50(b) of the Federal Rules of Civil Procedure allows for the entry of judgment as a
matter of law if a jury returns a verdict for which there is no legally sufficient evidentiary
basis. See Fed. R. Civ. P. 50. The standard under Rule 50 is the same as that for summary
judgment: A court may not grant a Rule 50 motion unless ―the evidence is such that, without
weighing the credibility of the witnesses or otherwise considering the weight of the evidence,
there can be but one conclusion as to the verdict that reasonable [persons] could have reached.‖
This Is Me, Inc. v. Taylor, 157 F.3d 139, 142 (2d Cir. 1998) (citation and internal quotation
marks omitted). Thus, in deciding such a motion, ―the court must give deference to all credibility
determinations and reasonable inferences of the jury . . . and it may not itself weigh the
credibility of the witnesses or consider the weight of the evidence.‖ Galdieri-Ambrosini v. Nat’l
Realty & Dev. Corp., 136 F.3d 276, 289 (2d Cir. 1998) (citations omitted). In short, the court
cannot ―substitute its judgment for that of the jury.‖ LeBlanc-Sternberg v. Fletcher, 67 F.3d 412,
429 (2d Cir. 1995) (citations omitted). Rather, judgment as a matter of law may only be granted
if:
(1) 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
(2) there is such an overwhelming amount of evidence in favor of the
movant that reasonable and fair minded persons could not arrive at a
verdict against it.
Galdieri-Ambrosini, 136 F.3d at 289 (quoting Cruz v. Local Union No. 3 of the Int’l Bhd. of
Elec. Workers, 34 F.3d 1148, 1154 (2d Cir. 1994)) (internal quotation marks omitted); see
also Luciano v. Olsten Corp., 110 F.3d 210, 214 (2d Cir. 1997). The test on a Rule 50(b) motion
is not the strength or weakness of the evidence, but whether the evidence presented was such that
2
a ―reasonable juror would have been compelled to accept the view of the moving party.‖
Densberger, 125 F. Supp. 2d at 590 (citing This Is Me Inc., 157 F.3d at 142).
When a jury has provided both a verdict and special interrogatories, and there is a
potential inconsistency between the jury‘s pronouncements, ―it is the duty of the district court to
reconcile the jury‘s general verdict and its interrogatory responses if reasonable reconciliation is
possible.‖ Kerman v. City of New York, 374 F.3d 93, 121 (2d Cir. 2004); see also Julien J.
Studley, Inc. v. Gulf Oil Corp., 407 F.2d 521, 526–27) (2d Cir. 1969) (―[I]f it is discoverable that
the jury might . . . have found consistent grounds for its ultimate decision—if the findings,
therefore, are not necessarily in conflict—the general verdict must be sustained.‖) (citations and
quotations omitted).
II.
Background and Procedural History
Cotto filed his complaint against the defendants on April 12, 2010. Trial began on
January 6, 2014, and lasted five days.
A. Evidence Adduced at Trial
Viewing the evidence put forth at trial in the light most favorable to the plaintiff, the jury
could have found the following relevant facts.
Alexander Cotto is an American citizen who was born in Puerto Rico. Tr. at 39. He
speaks Spanish, but he is completely illiterate and does not understand English. Tr. at 40. He has
mild mental retardation. Tr. at 45. At the time of the incident, he was 34 years old, stood about
five foot two, and weighed 140 pounds. Tr. at 51.
Cotto‘s wife usually drove him to work at night because he did not have a driver‘s
license. Tr. 50. On the night of January 12, 2010, however, she was unable to drive him, so Cotto
drove himself to work through downtown Middleton, Connecticut. Tr. at 54–55. It was a cold
3
evening, with temperatures in the low to mid thirties. Tr. 482. Around 10 p.m., Lieutenant Davis
observed Cotto driving with his lights off, and pulled him over. Tr. at 289–90. Cotto parked his
car on Green Street, approximately 100 feet from the Main Street intersection. Tr. 491. The
location of the stop was in ―plain view‖ of pedestrian traffic in the area. Tr. at 363. The incident
was also captured by a video camera in a liquor store parking lot across the street. Ex. 12. The
video demonstrates that Cotto was stopped in front of two residential houses, and across from
another building and a parking lot that was used by several cars over the course of the search. Id.
Davis approached the car alone, without drawing his gun. Tr. at 337. Cotto‘s wife had
instructed Cotto that if he was ever pulled over he should give the officer the papers in the car‘s
console. Tr. at 58. Cotto behaved accordingly—when Davis came over to the car, he reached into
the console and provided the papers that were there. Tr. at 59. He did not understand what Davis
was saying to him, and responded in Spanish that he did not speak any English. Id. Although
Cotto was unable to communicate, he was fully compliant throughout the search. Tr. at 481.
Davis then instructed Cotto to get out of the car, using hand gestures. Tr. 61. Davis
placed Cotto‘s hands on top of the car, used his feet to spread Cotto‘s legs, and performed a
thorough pat-down, including a manual over-the-clothes search of Cotto‘s genitals and buttocks.
Tr. at 61–63. Although Davis found no weapons or contraband, and although he admittedly had
no knowledge of Cotto‘s identity, Davis placed Cotto in handcuffs, sat him down on the
sidewalk, and called for back-up. Tr. at 63. Buller, Tetrault, and Schreiner arrived. Tr. at 64.
Davis did not indicate to the other officers either when they arrived or at any other point during
the search that Cotto posed any kind of safety risk. Tr. at 492. At some point, Schreiner
identified Cotto and incorrectly informed Davis that Cotto had previously been arrested for
narcotics possession. Tr. at 461.
4
After the other officers arrived, Davis retrieved a narcotics-trained canine from his car
and resumed searching Cotto. Tr. at 64. The dog sniffed Cotto and positively alerted to his upper
left thigh and buttocks. Tr. 430. Davis then commenced a second pat-down, including a search of
Cotto‘s jeans that turned up money but no narcotics. Tr. at 67, 431. During the second pat-down,
Davis felt between Cotto‘s buttocks with his finger but uncovered no weapons or contraband. Tr.
at 68. Davis also kicked off and searched Cotto‘s shoes. Tr. at 83, 85. Although Davis did not
find any evidence of weapons or contraband in Cotto‘s shoes, he did not return them for the
duration of the search, leaving Cotto to stand handcuffed in socks on the street on a cold night.
Tr. at 83–84.
Davis searched the inside of Cotto‘s car with the canine. Tr. at 72. He ripped the door
panel, pulled up the floor mats, and opened compartments in the car, but again came up with no
weapons or contraband. Tr. at 72–74. Davis then again searched Cotto‘s person using the dog,
and began the third pat-down. Tr. at 72, 85. During the third pat-down, Davis pulled down
Cotto‘s jeans all the way to his ankles. Tr. 83, 85. Underneath his jeans, Cotto was wearing
pajama pants/sweatpants as underwear. Tr. at 56. The dog then sniffed Cotto again, and again
altered positively to the pocket-area of his pajamas. Tr. at 80. Davis conducted a fourth patdown, searching Cotto‘s pajama pockets and feeling his buttocks and genitals through the fabric
with his fingers. Tr. at 87.
Although Davis once again did not find any weapons or contraband, he then pulled down
Cotto‘s pajamas. Tr. at 85–86. As discussed further below, the jury rejected testimony that the
pajamas/sweatpants were pulled all the way down to Cotto‘s knees, but Cotto‘s statements were
sufficient for the jury to find that they had been pulled down or away from his body a sufficient
5
distance to expose Cotto‘s buttocks and genitals. See Tr. at 87–89.1 Davis asked Tetrault, who
was standing closest to him during the search, for his flashlight and Tetrault handed it over. Tr. at
433. Davis stated that he had no need to look at Cotto‘s genitals because if there was anything
kept there, he would have felt it during the pat-downs. Tr. at 314. The jury could have found that
he nevertheless used the flashlight to conduct a visual search of Cotto‘s genitals and buttocks. Tr.
at 88. Once again, Davis found no evidence of weapons or contraband in the visual search.
Finally, Davis conducted a manual search of Cotto‘s bare buttocks and genitals, reaching
in and feeling the area with his ungloved hand despite having gloves available in his car. Tr. at
89, 167–68, 434. Again, no evidence of contraband or weapons was found.
The entire stop and search took approximately one hour. Ex. 12. Despite periodic
vehicular and pedestrian traffic, including people who could be seen on video to be slowing
down to watch the search, id., none of the defendants made any effort to protect Cotto‘s privacy
or to shield him from public view, Tr. at 362–63, 470. At one point, Davis referred to Cotto as a
―Fucking Puerico,‖ a slang term for Puerto Ricans. Tr. at 183. And throughout the search,
Buller, Tetrault, and Schreiner were talking and laughing. Tr. at 80. In particular, Cotto specified
that they laughed at him when Davis pulled his pants down for the strip search. Tr. at 89, 90.
1
The defendants incorrectly assert that ―the only testimony about how far Mr. Cotto‘s waistband was pulled away
from his body was from Lt. Davis‖ and further assert that Cotto‘s only testimony on the subject was about ―whether
or not his sweatpants were pulled down to his knees.‖ Def. Reply Br. at 4. They assert that because the jury
specifically found that the pants had not been pulled down to the knees, they necessarily rejected Cotto‘s testimony
on the subject. But although plaintiff‘s counsel said in his opening statement that Cotto would testify he was ―naked
to his knees,‖ Tr. at 28, Cotto himself never made any reference to his knees in his testimony. Instead, the
defendants‘ argument is based on the following exchange between Cotto and defense counsel: ―Q: He never pulled
your pants all the way down to your knees, your pajamas, isn‘t that right? A: He pulled it down.‖ Tr. at 167. As
noted above, Cotto repeated the statement that Davis ―pulled it down‖ at several other points in his testimony. See
Tr. at 87–89. The jury could easily have rejected the contention that the pajamas were pulled ―all the way down to
[Cotto‘s] knees‖ and still have evidence to make a consistent finding that they were lowered a shorter distance that
was still sufficient to expose Cotto‘s private parts to the public. For me to find otherwise would require an
evaluation of witness credibility, which task falls exclusively to the jury. Jean-Laurent v. Hennessy, No. 05-cv-1155
(JFB)(LB), 2008 WL 3049875, at *18 (E.D.N.Y. Aug. 1, 2008).
6
Davis ultimately issued Cotto a ticket, had his car towed, and the defendants left the
scene. Tr. at 322–26, 436. Cotto went to a hospital, complaining about pain in his rectum and
lower legs resulting from the search. Tr. at 98–99.
B. Jury Verdict and Interrogatories
The jury was instructed on section 1983 claims against Davis for unreasonable seizure,
Tr. at 601–07, and for an unreasonable search, Tr. 607–09. In particular, the jury was instructed
that it should find the search was unreasonable if it found either that Cotto was not lawfully
detained, or that Davis had no reasonable suspicion to conduct the search, or that the search was
not done in a reasonable manner. Id. It was also instructed on section 1983 claims against Buller,
Tetrault, and Schreiner for failure to intervene, Tr. at 609, and claims against all of the
defendants for intentional or negligent infliction of emotional distress, Tr. at 611–16, and
invasion of privacy, Tr. at 616. The jury was also instructed on compensatory, nominal, and
punitive damages. Tr. at 616–22.
The jury returned a verdict largely in favor of Cotto. See Tr. at 714–16. doc. 162.
Specifically, it found that Cotto had proved his claims of unreasonable search against Davis, the
failure to intervene claims against the other defendants, and the invasion of privacy claims
against all defendants, but that he had failed to prove an unreasonable seizure or either of the
emotional distress claims. It awarded $1,000 in nominal damages, and a total of $60,000 in
punitive damages from all of the defendants—$40,000 from Davis, $10,000 from Tetrault, and
$5,000 each from Buller and Schreiner.
The jury was then asked to answer specific interrogatories, which it did as follows:
The COURT:
[Interrog. #1] Did Lieutenant Richard Davis have probable cause
to arrest Mr. Cotto for driving without an operator's license,
7
making an illegal U-turn, or operating a motor vehicle without
headlights?
Yes.
[Interrog. #2] Did Lieutenant Richard Davis have reasonable
suspicion to suspect that Mr. Cotto was armed and dangerous
which justified a pat down of Mr. Cotto when he exited his
vehicle?
Yes.
[Interrog. #3] Was the canine, Rika, certified to detect the odor of
narcotics?
Yes.
[Interrog. #4] Did Mr. Cotto rebut the presumption of the canine
Rika's reliability as a detector of narcotics?
The answer there is ―Yes,‖ and then the note next to it is, "But
unsuccessfully.‖ Is that an indication that the effort to rebut was
made but it was not rebutted? Or –
The FOREPERSON:
We recognize that there was an attempt to rebut but it was
unsuccessful. We didn't want the Court to believe that we did not
understand that there was an attempt.
....
The COURT:
[Interrog. #5] Did the canine Rika alert to Mr. Cotto's jeans?
Yes.
[Interrog. #6] Did the canine Rika alert to Mr. Cotto's
sweatpants/pajamas?
Yes.
[Interrog. #7] Did Lieutenant Richard Davis pull Mr. Cotto's
sweatpants to his knees?
No.
8
[Interrog. #8] Did Lieutenant Richard Davis perform a strip search
of Mr. Cotto?
Yes.
[Interrog. #9] Did Lieutenant Richard Davis perform a body cavity
search of Mr. Cotto?
No.
[Interrog. #10] Was Mr. Cotto unlawfully (sic)2 detained?
Yes.
[Interrog. #11] Did Lieutenant Richard Davis have reasonable
suspicion that Mr. Cotto was concealing weapons or other
contraband?
Yes.
[Interrog. #12] Was the strip search, if any, performed in a
reasonable manner?
No.
[Interrog. #13] Was the body cavity search, if any, performed in a
reasonable manner?
And the answer is "Not Applicable."
[Interrog. #14] Did Lieutenant Richard Davis place his fingers into
Mr. Cotto's rectum?
No.
Tr. at 719 –21. The defendants subsequently filed this renewed motion for judgment as a matter
of law. (doc. 168)
III.
Discussion
The defendants make five arguments for judgment as a matter of law: (1) no reasonable
jury could have found that Davis‘ search was unreasonable; (2) no reasonable jury could have
found that Buller, Tetrault, and Schreiner‘s failure to intervene was unreasonable; (3) no
2
The interrogatory itself asked if Cotto was lawfully detained, to which the jury answered yes.
9
reasonable jury could have found malicious intent sufficient to subject the defendants to punitive
damages; (4) if a jury could have found either of the substantive claims, the defendants were
nevertheless entitled to qualified immunity; and (5) no reasonable jury could have found the
elements of the invasion of privacy tort. Additionally, although it was not raised by the
defendants, I consider whether the amount of punitive damages awarded is excessive.
A. Unreasonable Search (Davis)
The jury was instructed that it should find that Davis had conducted an unreasonable
search if any of the following obtained: (1) Cotto had been unlawfully detained; (2) Davis lacked
a reasonable suspicion to conduct the search; or (3) Davis had conducted the search in an
unreasonable manner. In its initial verdict, the jury found that Davis had conducted an
unreasonable search. In the special interrogatories, the jury specified that Davis had not pulled
Cotto‘s pajamas ―to his knees‖ (Interrog. 7), but that he had conducted a strip search (Interrog.
8). The jury further specified that Cotto was lawfully detained (Interrog. 10) and that Davis had
―reasonable suspicion that Mr. Cotto was concealing weapons or other contraband‖ (Interrog.
11), but that the strip search was not ―performed in a reasonable manner‖ (Interrog. 12).
The defendants now contend that, on the basis of the evidence at trial as well as the
factual findings implied by the jury‘s interrogatory responses, no reasonable jury could have
found Davis‘ strip search to be a violation of the Fourth Amendment.3
3
The defendants rely on both legal and factual arguments; however, their factual arguments uniformly run contrary
to the standard of review for a Rule 50(b) motion, which requires me to view the facts in the light most favorable to
the non-moving party and to draw every reasonable inference that would allow me to sustain the verdict.
Densberger, 125 F. Supp. 2d at 590. Specifically, the defendants assert that ―the jury could reasonably have found
that‖ Cotto‘s sweatpants ―remained up at all times,‖ that Cotto‘s genitals were never exposed to the public or to any
of the other officers, that Cotto was ―partially shielded from view by the surrounding officers and the vehicle parked
along the curb line,‖ and that the search took place on a dark street with minimal traffic. Defs.‘ Br. at 4, 27, 32.
Although the jury could have found those facts, the defendants have not shown that the evidence compelled it to do
so, nor have they shown that the jury actually did make such findings in order to come to the conclusions expressed
in its verdict and interrogatory responses. Accordingly, those facts are not controlling in my analysis; instead, the
10
The Fourth Amendment protects the ―right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures . . . .‖ U.S. Const.,
Amend. IV. To effectuate that protection, a police officer is generally required to obtain a
warrant from a judicial officer before conducting a search. See California v. Carney, 47 U.S.
368, 390 (1985); New York v. Belton, 453 U.S. 454, 457 (1981). Relevant to the present case,4
the Supreme Court has identified a search incident to arrest as a traditional exception to the
warrant requirement. See Chimel v. California, 395 U.S. 752, 762–63 (1969). That exception is
supported by two historical rationales: ―(1) the need to disarm the suspect in order to take him
into custody, and (2) the need to preserve evidence for later use at trial.‖ Knowles v. Iowa, 525
U.S. 113, 116 (1998) (collecting cases). It does not, however, insulate searches incident to a
valid arrest from a further reasonableness inquiry. See id. at 117.
―A ‗strip search‘ occurs when a suspect is required to remove his clothes.‖ Gonzalez v.
City of Schenectady, 728 F.3d 149, 158 (2d Cir. 2013) (citing People v. Hall, 886 N.E. 2d 162
(N.Y. 2008)). A strip search is considered to be ―an extreme intrusion upon personal privacy, as
well as an offense to the dignity of the individual.‖ Rivera v. United States, 928 F.2d 592, 607
(2d Cir. 1991) (citations omitted); see also Bolden v. Village of Monticello, 344 F. Supp. 2d 407,
417 (S.D.N.Y. 2004) (―A strip search—even without any type of body cavity examination—has
relevant inquiry here is whether the jury could reasonably have found a violation of the Fourth Amendment on the
basis of the evidence adduced at trial and set out above.
4
This ruling proceeds under the assumption that the jury found that Cotto was subject to a lawful arrest when it
found that Cotto had failed to prove that he was unreasonably seized. The verdict is actually ambiguous on that
point—the jury was instructed that it could find for the defendants on the question of seizure if either Cotto was
arrested based on probable cause or if he was not arrested, Tr. at 606, and the grounds on which they found for the
defendants on the seizure question were not illuminated in the Interrogatories. Cotto correctly points out that it is
debatable whether an encounter that does not end in booking or a formal arrest may be considered an ―arrest‖
sufficient to trigger the search-incident-to-arrest standard. See Pl.‘s Br. at 20–21 (citing Wilson v. Aquino, 5:01-cv1597 (DFP) (doc. 102) (N.D.N.Y. Oct. 5, 2005) (discussing Knowles v. Iowa, 525 U.S. 113 (1998)). The searchincident-to-arrest standard for a search is far more generous towards police officers than what is allowed for a Terry
frisk; because I conclude that the verdict may be upheld even under that standard, in this case there is no need for me
to wade into the muddy distinctions between an investigative detention under Terry and a ―formal arrest.‖
11
always been viewed as an extraordinary invasion of privacy requiring consideration of the
‗totality of circumstances‘ . . . .‖).
In Bell v. Wolfish, 441 U.S. 520 (1979), the leading Supreme Court case considering the
Fourth Amendment requirements for a strip search, the Court established the following
guidelines:
The test of reasonableness under the Fourth Amendment is not capable of
precise definition or mechanical application. In each case it requires a
balancing of the need for the particular search against the invasion of
personal rights that the search entails. Courts must consider the scope of
the particular intrusion, the manner in which it is conducted, the
justification for initiating it, and the place in which it is conducted.
Id. at 559. Because the first and third prongs of the Bell test—scope and justification—are
closely related, and because the second and fourth prongs—manner and place—are similarly
intertwined, I will consider the Bell factors in two steps. Although Davis‘ actions may have been
appropriate on the former axis, he violated the latter by conducting the search in an unreasonable
manner; accordingly, the jury‘s verdict on the unreasonable search claim may stand.
1. Scope and Justification
As discussed above, ―[t]he [Fourth] Amendment's protection is not diluted in those
situations where it has been determined that legitimate law enforcement interests justify a
warrantless search: the search must be limited in scope to that which is justified by the particular
purposes served by the exception.‖ Florida v. Royer, 460 U.S. 491, 500 (1983). A strip search is
―viewed as an extraordinary invasion of privacy.‖ Accordingly, ―the Second Circuit has
exhibited considerable regard for the right of any person . . . not to be subjected to a strip search
unless there exists particularized suspicion that an individual is secreting contraband.‖ Bolden v.
Vill. of Monticello, 344 F. Supp. 2d 407, 417 (S.D.N.Y. 2004) (collecting cases); see also United
States v. Gonzalez, No. 08 CR. 363 (BSJ), 2009 WL 613201, at *7 (S.D.N.Y. Mar. 4, 2009),
12
aff’d, 470 F. App‘x 2 (2d Cir. 2012) (―Before an arrestee may be lawfully subjected to a strip
search, the Fourth Amendment requires an individualized ‗reasonable suspicion that an arrestee
is concealing weapons or other contraband based on the crime charged, the particular
characteristics of the arrestee, and/or the circumstances of the arrest.‘‖) (quoting Hartline v.
Gallo, 546 F.3d 95, 100–01 (2d Cir. 2008)).
The jury found that Davis performed a strip search of Cotto, but did not perform a body
cavity search. Interrogs. 8, 9. The jury also found that Davis had ―reasonable suspicion‖ that
Cotto was concealing weapons or contraband, although the Interrogatory did not specify the time
when that ―reasonable suspicion‖ existed. Interrog. 11.
The defendants assert that the jury‘s affirmative responses to Interrogatory 11 and
Interrogatory 2, which asks whether Davis had ―reasonable suspicion to suspect Mr. Cotto was
armed and dangerous . . . when he exited his vehicle,‖ clearly indicate that the jury found the
strip search itself to be justified. See Defs.‘ Reply Br. at 3. Arguably, the manner in which
Interrogatory 11 is drafted renders it insufficient to provide the ―particularized suspicion‖
required to justify a strip search. The Interrogatories are presented seemingly in chronological
order, meaning that they progress from questions about Davis‘ initial stop and pat-down to the
canine sniff to the strip search, and Interrogatory 11 is presented amidst other questions specific
to the strip search; on the other hand, the plain texts of the question itself makes no mention of
whether the ―reasonable suspicion‖ to which it refers applied to the strip search itself. Cotto also
points to Davis‘ statement that he knew there were no objects in Cotto‘s buttocks after he
completed his pat-downs, see Tr. at 314, as proof that Davis had no particularized suspicion
whatsoever to justify the search after that point. See Pl.‘s Br. at 16, 19.
13
Although Cotto is correct that the jury could have deemed Davis‘ testimony to be such an
admission, the defendants‘ argument appears to be more consistent with the jury‘s affirmative
response on Interrogatory 11, as well as its finding that the narcotics dog alerted to Cotto‘s
pajamas and was reliable. Because there is another basis for upholding the verdict here—namely,
the jury‘s finding that the search was not conducted in a reasonable manner—I will assume
without deciding that the jury found that Davis did have a sufficient particularized suspicion to
justify the scope of the strip search, including as component parts the visual search and the
reach-and-feel.5
2. Manner and Place
Bell itself observes that a search justified in scope may nevertheless violate the Fourth
Amendment if it is conducted in an unreasonable manner. See Bell, 441 U.S. at 560 (citing
5
Despite that assumption, I note that if the jury did, in fact, find that Davis had sufficient justification to strip search
Cotto, that finding may well violate Second Circuit law. See Hartline v. Gallo, 546 F.3d 95, 101 (2d Cir. 2008)
(holding that an officer did not have sufficient reasonable suspicion to strip search a subject who had been charged
with misdemeanor possession of ―unusable bits of marijuana;‖ cautioning that ―if the facts of this case amount to
reasonable suspicion, then strip searches will become commonplace‖).
In particular, I am highly skeptical that Davis had the appropriate justification to reach in and feel Cotto‘s
bare genitals and buttocks with his ungloved hand. The defendants‘ argument on that point is almost uniformly off
base. Nearly all of the cases in the ―Pull Out and Reach In‖ portion of their brief involve an officer reaching into a
subject‘s clothing only after independently determining that there was a foreign object in the subject‘s private area.
See, e.g., United States v. Gonzalez, No. 08 CR. 363 (BSJ), 2009 WL 613201, at *8 (S.D.N.Y. Mar. 4, 2009), aff’d,
441 F. App‘x 31 (2d Cir. 2011), and aff’d, 470 F. App‘x 2 (2d Cir. 2012) (item in plain view on visual search);
United States v. Ashley, 37 F.3d 678, 679 (D.C. Cir. 1994) (item felt through outer clothing, visible above
underwear); United States v. Robinson, No. 1:08-CR-74-TS, 2009 WL 2106147, at *15 (N.D. Ind. July 13, 2009),
aff’d, 615 F.3d 804 (7th Cir. 2010) (item felt through outer clothing, and because item had already been located and
identified by the officer, court characterized the reach-in as a retrieval instead of a search); United States v. Bazy,
No. 94-40018-01-SAC, 1994 WL 539300, at *3 (D. Kan. Aug. 29, 1994), aff’d, 82 F.3d 427 (10th Cir. 1996) (item
felt through outer clothing); United States v. Gordon, No. 2:04-CR-688, 2008 WL 3540007, at *2 (D. Utah Aug. 13,
2008) (item felt through outer clothing); Harden v. Flowers, No. 01 C 7878, 2003 WL 1989616, at *2 (N.D. Ill. Apr.
29, 2003) (informant indicated location of item, and item felt through outer clothing); United States v. Burnett, No.
09-4003-04CR-C-NKL, 2009 WL 2835751, at *2 (W.D. Mo. Aug. 31, 2009) (item felt through underwear); United
States v. Williams, 209 F.3d 940, 944 (7th Cir. 2000) (item felt through outer clothing); State v. Smith, 118 N.C.
App. 106, 108, 454 S.E.2d 680, 682, writ allowed, 340 N.C. 362, 458 S.E.2d 196 (1995), and rev’d, 342 N.C. 407,
464 S.E.2d 45 (1995) (informant indicated location of item, item visible on visual search of genitals); but see
Dominguez v. Metro. Miami-Dade Cty., 359 F. Supp. 2d 1323, 1339–40 (S.D. Fla. 2004), aff’d, 167 F. App‘x 147
(11th Cir. 2006) (gloved manual search without prior confirmation, resulted in indirect gloved touching of subject‘s
vagina and rectum); Cross v. City of Chicago, No. 03 C 4265, 2004 WL 2644405, at *8 (N.D. Ill. Nov. 19, 2004)
(gloved manual search without prior confirmation).
14
Schmerber v. California, 384 U.S. 757, 771–72 (1966)); see also Galluccio v. Holmes, 724 F.2d
301, 304 (2d Cir. 1983) (―Appellees are not shielded by the warrant from liability under 42
U.S.C. § 1983 if the warrant was executed in an unreasonable manner.‖); Wang v. Vahldieck, No.
09-CV-3783 (ARR) (VVP), 2012 WL 119591, at *10 (E.D.N.Y. Jan. 9, 2012) (―[A] search
incident to a lawfully executed arrest may still violate the Fourth Amendment, if conducted in an
otherwise unreasonable manner.‖); Ivey v. Lyman, No. 902-CV-470, 2005 WL 1397134, at *3
(N.D.N.Y. June 1, 2005) (same); Bolden v. Vill. of Monticello, 344 F. Supp. 2d 407, 416
(S.D.N.Y. 2004) (―No search warrant shields a police officer from carrying out a search in an
unreasonable manner or from employing excessive force during a search. It would be frivolous
for defendants to argue otherwise.‖).
Accordingly, a finding in the defendants‘ favor on the scope and justification factors is
not dispositive—courts in this circuit have routinely held a search that is justified in scope could
nevertheless violate the Fourth Amendment if it was conducted in an unreasonable manner or at
an unreasonable location. See, e.g., Wilson v. Aquino, 233 F. App‘x 73, 76 (2d Cir. 2007);
Campbell v. Fernandez, 54 F. Supp. 2d 195, 198 (S.D.N.Y. 1999); Thomas v. O'Brien, No. 5:08CV-0318NAM/DEP, 2010 WL 3155817, at *7 (N.D.N.Y. Aug. 9, 2010). A strip search in a
public place, even if justified by reasonable suspicion, has been uniformly subject to close
scrutiny, and has generally required a clear showing of exigent circumstances to justify such an
extreme invasion of privacy. See Illinois v. Lafayette, 462 U.S. 640, 645 (1983) (observing that
―the interests supporting a search incident to arrest would hardly justify disrobing an arrestee on
the street‖); Rivera v. United States, 928 F.2d 592, 606–07 (2d Cir. 1991) (reversing district
court‘s grant of summary judgment to police officers on Fourth Amendment claim in part
because officers ―perform[ed] a publicly observable strip search‖); Moore v. Hearle, 639 F.
15
Supp. 2d 352, 357 (S.D.N.Y. 2009) (―[A] partial strip search in a public place where passersby
can see a person's naked body is not reasonable absent serious safety concerns.‖); see also
Campbell v. Miller, 499 F.3d 711, 719 (7th Cir. 2007) (―Courts across the country are uniform in
their condemnation of intrusive searches performed in public.‖) (collecting cases).
Here, the jury specifically found that the strip search was conducted ―in an unreasonable
manner.‖ Interrog. 12. Based on the evidence at trial, it could reasonably have found that the
search was conducted as follows: Davis, making no effort to communicate with Cotto who
clearly could not understand English, searched him for nearly an hour. During the search, Davis
removed Cotto‘s jeans and shoes, pulled down his pajamas and exposed him to the street, and
used his bare, ungloved hand to feel Cotto‘s buttocks and genitals despite knowing that gloves
were easily available in his car. Davis did not return Cotto‘s shoes after he had determined that
they did not contain contraband, but instead left Cotto to stand in his socks on a cold street for an
extended period of time. Davis also aimed a racial epithet and an obscenity at Cotto.
The location of the search is bound up with the unreasonable manner in which it was
conducted. The jury could reasonably have found that the strip search took place on a public
street, in view of both pedestrian and vehicular traffic, as well as commercial and residential
buildings, and that neither Davis nor any of the other defendants made any effort to shield Cotto
from view.
Several of the above facts would support the jury‘s finding that the strip search was
conducted in an unreasonable manner. First, Davis‘s verbal attack on Cotto, referring to him as a
―fucking Puerico,‖ plainly supports a finding of unreasonableness. See Campbell, 54 F. Supp. 2d
at 197 (declining to grant summary judgment in favor of the defendants where a jury could find
that they, inter alia, ―taunted the two men (both of them black) about the size of their penises and
16
addressed them by racial epithets during the search‖); Ivey, 2005 WL 1397134, at *2 (same); see
also Thomas, 2010 WL 3155817, at *7 (declining to grant summary judgment in favor of the
defendants where a jury could find, inter alia, that the defendants ―verbally harassed plaintiff‖
during a Terry stop); see also Wilson, 233 F. App‘x at 78 (holding that the defendants‘ verbal
abuse of the subject during the search supported an award of punitive damages).
Davis‘ wholly unexplained decision to use his ungloved hands to feel Cotto‘s buttocks
and genitals despite the easy availability of gloves in his car is similarly unreasonable. See
Amaechi v. West, 237 F.3d 356, 365–66 (4th Cir. 2001) (asserting that an officer‘s ―touching and
penetration of [the plaintiff‘s] exposed genitalia with his ungloved hand affronts the basic
protections of the Fourth Amendment‖). In stark contrast to the present case, in nearly all of the
cases collected by the defendants in which a reach-and-feel search was found to be reasonable,
the court approvingly highlighted the officer‘s use of gloves as a clear sign that the search was
conducted in an appropriate manner. See, e.g., United States v. Williams, 209 F.3d 940, 944 (7th
Cir. 2000) (highlighting the officer‘s use of gloves); United States v. Bazy, No. 94-40018-01SAC, 1994 WL 539300, at *7 (D. Kan. Aug. 29, 1994), aff’d, 82 F.3d 427 (10th Cir. 1996)
(same); United States v. Gordon, No. 2:04-CR-688, 2008 WL 3540007, at *2 (D. Utah Aug. 13,
2008) (same); Cross v. City of Chicago, No. 03 C 4265, 2004 WL 2644405, at *8 (N.D. Ill. Nov.
19, 2004) (―[The strip search] appears to have been done in a professional manner. [The officer]
wore gloves . . . .‖).
Davis‘ decision to conduct the strip search in a public place, in full view of bystanders,
without making any effort whatsoever to block Cotto from view provides perhaps the strongest
support for the jury‘s finding of unreasonableness. Courts in this circuit have routinely held that
―a partial strip search in a public place where passersby can see a person's naked body is not
17
reasonable absent serious safety concerns.‖ Moore v. Hearle, 639 F. Supp. 2d 352, 357
(S.D.N.Y. 2009); see also Jean-Laurent v. Hennessy, No. 05CV1155(JFB)(LB), 2008 WL
3049875, at *14 (E.D.N.Y. Aug. 1, 2008) (declining to grant summary judgment in favor of the
defendants where a reasonable jury could find, inter alia, that the strip search was conducted on
a public street without justification for that location); Thomas, 2010 WL 3155817, at *9 (same,
on the front porch of a residence); see also Campbell, 499 F.3d at 718 (―Having decided,
legitimately, to conduct this type of search, the police inexplicably did not even afford Campbell
the dignity of doing it in a private place.‖). The defendants correctly point out that some of those
cases involved more egregious conduct—Cotto was not made to spread his buttocks and jump up
and down, as in Moore, nor was he subjected to additional physical violence and cavity searches,
as in Jean-Laurent and Thomas; that Cotto was spared those additional abuses, however, does
not somehow obviate the obvious humiliation of a strip search conducted on a public street, in
plain view of passersby. Moreover, the defendants‘ own brief underscores the unreasonableness
of Davis‘ failure to make any effort to protect Cotto from view—in each of cases cited upholding
the reasonableness of a strip search conducted in an open environment, the defendants note in
parentheticals that officers in those cases made some effort to protect the subject‘s privacy. See
Defs.‘ Br. at 25–26.
In sum, it appears that the defendants are not arguing—as indeed they cannot argue—that
an officer-imposed public strip search in plain view of pedestrian and vehicular traffic with no
effort to shield the subject is reasonable. Instead, they argue for a different reading of the facts.
See Defs.‘ Br. at 24 (asserting, inter alia, that Cotto‘s ―private parts were never exposed and
there was at least a partial barrier around the plaintiff‖); id. at 27 (asserting that ―Davis took
measures to ensure privacy.‖). But again, the defendants misunderstand the standard for factual
18
arguments at this stage of the case—they have failed to show that the jury was compelled to
make those factual findings, particularly given that Davis and the other defendants freely
admitted that they made no effort to protect Cotto from view.
Intermittently, the defendants also suggest that the manner and location of the search,
even if otherwise unreasonable, could have been justified by exigent circumstances. They argue
first that it was ―undisputed that Lt. Davis had a reasonable suspicion that Mr. Cotto was armed
and dangerous,‖ Defs.‘ Br. at 33, although the jury‘s finding was limited to the moment when
Cotto exited the vehicle.6 The defendants have failed to demonstrate that the jury was also
compelled to find, or actually did find, that Cotto remained a security threat once he was
handcuffed and subjected to multiple pat-downs. Instead, based on Cotto‘s comparatively small
stature, his compliance throughout the search, the defendants‘ total lack of communication about
whether Cotto posed a threat, and based on Davis‘ failure to request their physical assistance
during the search, the jury could have reasonably found that by the time of the strip search, Cotto
was not a security threat.
The defendants also argue that an immediate and public strip search was necessary to
prevent Cotto from either pushing the never-located contraband deeper into his buttocks or
discarding it in the patrol car. Defs.‘ Br. at 28, 33. But Cotto was wholly compliant, handcuffed,
and surrounded by officers. In Wilson v. Aquino, 233 F. App‘x 73 (2d Cir. 2007), the Second
Circuit rejected a similar argument as ―at best, speculative.‖ Id. at 76; see also Thomas, 2010 WL
3155817, at *10 (rejecting a similar argument in the context of a search of a known drug dealer
as ―objectively unreasonable‖). Wilson is narrowly distinguishable from the present case,
6
Interrogatory 11 asked whether Davis had a reasonable suspicion that Cotto was concealing ―weapons or other
contraband.‖ Because it did not ask the jury to distinguish between those categories, the jury‘s affirmative answer
could reasonably have referred to a suspicion that Cotto was concealing narcotics rather than a weapon, which
would have been wholly consistent with Davis‘ persistent use of a narcotics-sniffing dog.
19
because the narcotics-sniffing dog there had not alerted to the plaintiff‘s person at all.
Nevertheless, to seriously credit the defendants‘ argument that as a matter of law it should be
assumed that a small, handcuffed man could somehow, on the way to the police station, dispose
of evidence lodged so deeply in his buttocks that it was not detectable after four pat-downs
would give officers license to claim ―exigent circumstances‖ and publicly strip search any
individual suspected of narcotics possession. There are instances where the subject of a search
has already shown an ability and inclination to dispose of evidence during an arrest—this is
simply not one of them.
In sum, the defendants have failed to show, under the Bell test, that the jury was
compelled to find that Davis strip searched Cotto in a reasonable manner. Accordingly, that
portion of the verdict is sustained.
B. Unreasonable Failure to Intervene (Buller, Tetrault, and Schreiner)
The jury was instructed on section 1983 claims against Buller, Tetrault, and Schreiner for
failure to intervene. Tr. at 609. It found in favor of Cotto on those claims, and was not asked to
clarify that portion of the verdict in the interrogatories. The defendants now contend that, on the
basis of the evidence at trial, no reasonable jury could have could have found the defendants‘
failure to intervene to be a violation of the Fourth Amendment.
―It is widely recognized that all law enforcement officials have an affirmative duty to
intervene to protect the constitutional rights of citizens from infringement by other law
enforcement officers in their presence.‖ Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994)
(collecting cases). ―An officer who fails to intercede is liable for the preventable harm caused by
the actions of the other officers where that officer observes or has reason to know . . . that any
constitutional violation has been committed by a law enforcement official.‖ Id. (citing O’Neill v.
20
Krzminski, 839 F.2d 9, 11 (2d Cir. 1988)). ―Liability may attach only when (1) the officer had a
realistic opportunity to intervene and prevent the harm; (2) a reasonable person in the officer's
position would know that the victim's constitutional rights were being violated; and (3) the
officer does not take reasonable steps to intervene.‖ Jean-Laurent v. Wilkinson, 540 F. Supp. 2d
501, 512 (S.D.N.Y. 2008), aff’d sub nom. Jean-Laurent v. Wilkerson, 461 F. App‘x 18 (2d Cir.
2012).7 Even officers who do not actively participate in a strip search may still be found liable
for a failure to intervene if they had a reasonable opportunity to do so. Jean-Laurent, 2008 WL
3049875, at *14–15.
Based on the evidence adduced at trial, the jury could have found that Buller, Tetrault,
and Schreiner stood by and laughed at Cotto while Davis was publicly strip-searching him,
making no effort to shield him from plain view of the public. It could have found that the three
officers were within earshot of Davis when he referred to Cotto as a ―fucking Puerico.‖
Moreover, the jury could have found that when Davis asked Tetrault, who was standing closest
to him, for his flashlight, he put the three officers on notice that he was about to conduct a visual,
and perhaps even a manual genital search of Cotto in plain view of the public.
The jury reasonably found that the three officers had a clear opportunity to intervene in
the strip search: they could have stopped or taken over the search from Davis after he swore at
Cotto; they could have encouraged Davis to move the search out of the cold and into a private
location as soon as Davis began removing Cotto‘s shoes and jeans; or they could have, at the
bare minimum, blocked Cotto from view with their bodies during the strip search, an action that
would have taken mere seconds to complete. Additionally, Tetrault could have declined to
provide Davis with his flashlight until Cotto was given some privacy, and any of the officers
7
Anticipating the qualified immunity discussion below, I note that those factors blur distinctions between the
question whether the defendants had a duty to intervene at all, and whether their failure to intervene is nevertheless
protected by qualified immunity.
21
could have quickly obtained gloves from the squad car. But the three officers admit that they
took none of those actions, and do not assert that they made any other efforts to intervene.
As set out at length above, conducting a public strip search absent exigent circumstances
is a clearly established violation of the Fourth Amendment. Moreover, the officers‘ own
reactions underscore what reasonable people in their position would have known—that Cotto‘s
rights were being violated. They laughed at Cotto, and in particular, they laughed when his
pajamas were pulled down and his private areas were exposed to the street.
Accordingly, that portion of the verdict is sustained.
C. Punitive Damages
―Punitive damages are available in a § 1983 action ‗when the defendant‘s conduct is
shown to be motivated by evil motive or intent, or when it involves reckless or callous
indifference to the federally protected rights of others.‘‖ Lee v. Edwards, 101 F.3d 805, 808 (2d
Cir. 1996) (quoting Smith v. Wade, 461 U.S. 30, 56 (1983)).
The jury was instructed on the availability of punitive damages for section 1983 claims
against any of the defendants it found had acted ―maliciously or wantonly.‖ Tr. at 622. It
awarded punitive damages against all of the defendants, and was not asked to clarify that award
in the interrogatories. The defendants now contend that, on the basis of the evidence at trial, no
reasonable jury could have could have found the defendants‘ conduct was sufficiently malicious
to support an award of punitive damages.
The defendants‘ proffered argument assumes their victory on the Fourth Amendment
claims, resulting in a finding of a finding of ―reasonableness,‖ that, they argue, precludes the
imposition of punitive damages. Defs.‘ Br. at 49–50. They offer no alternative arguments should
the jury‘s finding of unreasonableness be upheld, as it is here.
22
Moreover, as Cotto points out, the record is replete with evidence from which the jury
could infer the defendants‘ malicious intent. See Pl.‘s Br. at 55. Davis made no effort to
communicate with Cotto during an hour-long search. He used an obscenity and an ethnic slur
against Cotto during the search. He made Cotto stand in the cold on a public street without shoes
and stripped to his undergarments, making no effort to protect his privacy. He then publicly
stripped Cotto and, despite having gloves close by and available, used his ungloved hand to
touch Cotto‘s bare buttocks and genitals. The other defendants stood by and laughed at Cotto,
particularly when he was strip-searched. Although they were present and not otherwise occupied,
they, too, made no effort to shield him from public view. The jury could easily have found that
there was no justification besides maliciousness for such an extended, invasive, and publicly
humiliating search. See Gonzalez v. City of Schenectady, No. 1:00-CV-0824, 2002 WL
34945084, at *7 (N.D.N.Y. Dec. 30, 2002) (upholding an award of punitive damages where the
jury could find malice ―based upon the defendant‘s knowledge and acquiescence of what was
occurring, and/or from the insults that were hurled at the plaintiff during the search,‖ as well as
based on the needlessly humiliating manner in which the search was conducted); see also Wilson
v. Aquino, 233 F. App‘x 73, 77–78 (2d Cir. 2007) (upholding an award of punitive damages
where the defendant-officers verbally abused subject during the search, physically taunted him,
and used physical violence during the forcible removal of clothing).
Accordingly, the awarding of punitive damages is sustained.
D. Qualified Immunity
The defendants contend that all of the defendants were protected from liability by
qualified immunity.
23
The doctrine of qualified immunity protects government officials from suit if ―their
conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.‖ Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). ―The
issues on qualified immunity are: (1) whether plaintiff has shown facts making out violation of a
constitutional right; (2) if so, whether that right was ‗clearly established‘; and (3) even if the
right was ‗clearly established,‘ whether it was ―objectively reasonable‖ for the officer to believe
the conduct at issue was lawful.‖ Gonzalez v. City of Schenectady, 728 F.3d 149, 154 (2d Cir.
2013) (citation omitted). The qualified immunity inquiry must be limited to the law at the time of
the alleged violation, and ―must be undertaken in light of the specific context of the case, not as a
broad general proposition.‖ Brosseau v. Haugen, 543 U.S. 194, 198 (2004).
With respect to the specific elements of the qualified immunity inquiry, the analysis
above establishes that a constitutional violation has been shown, so that question will not be
discussed further. ―To be ‗clearly established,‘ ‗[t]he contours of the right must be sufficiently
clear that a reasonable official would understand that what he is doing violates that right.‘‖
Gonzalez, 728 F.3d at 154 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). ―In
determining whether a right is clearly established, [courts] consider (1) whether the right was
defined with reasonable specificity; (2) whether Supreme Court or court of appeals case law
supports the existence of the right in question, and (3) whether under preexisting law a
reasonable defendant would have understood that his or her acts were unlawful.‖ McGarry v.
Pallito, 687 F.3d 505, 512 (2d Cir. 2012) (internal quotation and citation omitted). Directly
responsive binding authority is not required, however; courts may ―treat the law as clearly
established if decisions from this or other circuits clearly foreshadow a particular ruling on the
issue.‖ Terebesi v. Torreso, 764 F.3d 217, 231 (2d Cir. 2014), cert. denied sub nom. Torresso v.
24
Terebesi, 135 S. Ct. 1842 (2015) (internal quotation marks and citations omitted). ―In assessing
objective reasonableness, we look to whether officers of reasonable competence could disagree
on the legality of the defendant‘s actions.‖ Varrone v. Bilotti, 123 F.3d 75, 79 (2d Cir. 1997)
(internal quotation and citation omitted). In sum, ―[w]hen properly applied, [qualified immunity]
protects all but the plainly incompetent or those who knowingly violate the law.‖ Ashcroft v. al–
Kidd, 563 U.S. 731, 131 S. Ct. 2074, 2085 (2011) (internal quotation and citation omitted).
1. Davis
The defendants assert that Davis is protected by qualified immunity because: (1) there is
an absence of ―clearly established‖ law delineating when a public strip search is unreasonable,
Defs.‘ Br. at 43–47; and (2) in the alternative, it was objectively reasonable for Davis to believe
the strip search did not violate the Fourth Amendment, Defs.‘ Br. at 47–48.
The first argument is clearly unavailing. It relies heavily on language from the Supreme
Court‘s recent ruling in Ashcroft v. al–Kidd, 563 U.S. 731 (2011), that, the defendants seem to
suggest, heightens the requirements for ―clearly established‖ law. But the Second Circuit has
retained its previous qualified immunity standards, apparently with the approval of the Supreme
Court. See, e.g., Terebesi v. Torreso, 764 F.3d 217, 231 (2d Cir. 2014) (retaining the same
standard after al–Kidd), cert. denied sub nom. Torresso v. Terebesi, 135 S. Ct. 1842 (2015).
Moreover, even though Fourth Amendment case law is often highly-fact specific, that
does not mean it produces no ―clearly established‖ law. As set out above, courts in both this
circuit and across the country are in agreement about the following propositions: (1) a strip
search violates the Fourth Amendment if it is conducted in an unreasonable place and manner,
see, e.g., Galluccio, 724 F.2d at 304; Wilson, 233 F. App‘x at 76; and (2) it is unreasonable to
conduct a strip search in full view of the public without exigent circumstances, see, e.g.,
25
Lafayette, 462 U.S. at 645; Rivera, 928 F.2d at 606–07; Campbell, 499 F.3d at 719 (―Courts
across the country are uniform in their condemnation of intrusive searches performed in public.‖)
(collecting cases).
Given the lack of ambiguity, particularly with respect to the unreasonableness of a wholly
public strip search where Davis did not even request that the other officers offer the minimal
protection of using their bodies to shield Cotto from the street, it was not objectively reasonable
for Davis to believe that his actions did not violate the Fourth Amendment. See Rivera, 928 F.2d
at 606–07; see also Logan v. Shealy, 660 F.2d 1007, 1014 (4th Cir. 1981) (―We think that, as a
matter of law, no police officer in this day and time could reasonably believe that conducting a
strip search in an area exposed to the general view of persons known to be in the vicinity whether
or not any actually viewed the search is a constitutionally valid governmental invasion of (the)
personal rights that (such a) search entails.‖).
Conducting a strip search despite a wholly unjustified lack of privacy violates clearly
established law and defeats Davis‘ claim of qualified immunity. Davis‘ unreasonable conduct
also included additional egregious factors—namely, his use of a racial epithet and obscenity, as
well as his ungloved reach-and-feel search. The Second Circuit has not directly ruled on those
factors in an analogous context; however, its precedent, as well as rulings from other circuits,
―clearly foreshadow‖ a Second Circuit holding that such conduct is objectively unreasonable.
See Wilson, 233 F. App‘x at 78 (holding that the defendants‘ verbal abuse of the subject during
the search supported an award of punitive damages); Amaechi, 237 F.3d at 365–66 (asserting that
an officer‘s ―touching and penetration of [the plaintiff‘s] exposed genitalia with his ungloved
hand affronts the basic protections of the Fourth Amendment‖). Indeed, it is hard to imagine any
possible justification for an ungloved search in a situation comparable to this case, where Davis
26
knew gloves were easily available nearby and Cotto was handcuffed, heavily outnumbered, and
wholly compliant.
In fact, the jury could reasonably have found Davis was knowingly violating the law,
given that his actions included swearing at Cotto and clearly violating department policy to
conduct strip searches ―only . . . under exigent circumstances where the life of officers or others
may be placed at risk.‖ See Pl.‘s Mem., Ex. 1.
Accordingly, Davis is not entitled to qualified immunity, and Cotto may recover damages
from him personally.
2. Buller, Tetrault, and Schreiner
The defendants assert that Buller, Tetrault, and Schreiner are entitled to qualified
immunity.
The primary violation inquiry for an unreasonable failure to intervene heavily overlaps
with the qualified immunity discussion because it requires consideration of whether a reasonable
person would have known that the plaintiff‘s rights were being violated and would have had a
reasonable opportunity to do something about it. I have already determined that Davis‘ manner
of conducting the search was objectively unreasonable under clearly established law. Further, I
have already determined that the other officers could not reasonably have believed otherwise,
and that their laughter during the strip search could have led the jury to find that they were
knowingly assisting Davis in breaking the law by refusing to offer Cotto cover or other basic
protections. In such circumstances, the duty to intervene has been clearly established. Anderson
v. Branen, 17 F.3d 552, 557 (2d Cir. 1994).
Accordingly, Buller, Tetrault, and Schreiner are not entitled to qualified immunity, and
Cotto may recover damages from them personally.
27
E. Invasion of Privacy
As a preliminary matter, I note that defense counsel made almost no mention of the
invasion of privacy claim during his initial Rule 50(a) motion.8 Accordingly, he has not
adequately preserved objections regarding any potential failure of proof in Cotto‘s case. See
Galdieri-Ambrosini v. Nat'l Realty & Dev. Corp., 136 F.3d 276, 286 (2d Cir. 1998) (―[T]he
JMOL motion must at least identify the specific element that the defendant contends is
insufficiently supported.‖). Accordingly, I decline to consider whether the charge was adequately
supported by the evidence adduced at trial,9 and instead consider only whether granting the
defendants‘ motion is ―necessary . . . to correct ‗purely legal error.‘‖ Malmsteen v. Berdon, LLP,
369 F. App‘x 248, 249 (2d Cir. 2010) (citing Fabri v. United Tech. Int’l, Inc., 387 F.3d 109, 119
(2d Cir. 2004)).10
Specifically, the defendants suggest that the privacy tort was foreclosed by the jury‘s
finding of probable cause to arrest Cotto for his traffic violations as well as the positive alerts by
the narcotics dog, which they assert also affirmatively provide probable cause. Id. at 53–54, 56;
see also Florida v. Harris, _ U.S. _, 133 S. Ct. 1050, 1057–58 (2013) (instructing that a court
―should find probable cause‖ based on a positive alert where there is proof that the dog performs
reliably and the opposing party has failed to rebut that showing).
8
The entire discussion of the invasion of privacy claim in the Rule 50 motion colloquy was as follows: ―And then I
suppose if we were to fashion something that picks up the scenario of two fingers penetrating a rectum, it would be
the illegal search, it would be the invasion of privacy maybe? Although I'm not sure even that applies.‖ Tr. at 511.
9
Moreover, because the defendants assume that Fourth Amendment reasonableness is reasonableness per se, the
defendants‘ factual arguments largely rely on the success of their approach in the previous sections. There is no need
for me to revisit those arguments here. In addition, I note that the defendants‘ very assumption is questionable. They
argue that because courts have held that a Fourth Amendment violation necessarily satisfies the elements of an
invasion of privacy claim, the inverse proposition that Fourth Amendment reasonableness necessarily does not
satisfy the tort requirements must also hold true. Defs.‘ Br. at 53. But as Cotto points out, the Fourth Amendment
could be a floor for privacy rights rather than a ceiling. Pl.‘s Opp‘n Br. at 41–42. Accordingly, conduct that does not
violate the U.S. Constitution might still trigger state law protections.
10
The Second Circuit also recognizes an exception to correct ―manifest injustice.‖ Malmsteen v. Berdon, LLP, 369
F. App‘x 248, 249 (2d Cir. 2010). Because the defendants do not assert any such gross error, however, I see no need
to consider that exception.
28
As a matter of federal law, it is clear that the conduct of police officers is not generally
immunized by the existence of probable cause. See Galluccio, 724 F.2d at 304. The defendants
correctly point out, however, that certain state law torts are foreclosed by a finding of probable
cause. Defs.‘ Br. at 54–55, 57. Several of their examples are not analogous to the present case
because probable cause directly negates an element of the tort. For instance, the tort of malicious
prosecution under Connecticut law requires a showing that ―the defendant acted without
probable cause.‖ Brooks v. Sweeney, No. CV 06 5005224S, 2008 WL 5481203, at *2 (Conn.
Super. Ct. Nov. 28, 2008), aff’d, 299 Conn. 196, 9 A.3d 347 (2010) (citing Lopes v. Farmer, 286
Conn. 384, 389 (2008)). The tort of trespass similarly requires the unlawful entry on property,
and probable cause clearly provides the requisite ―lawfulness‖ to defeat that element. Cf.
Georgia v. Randolph, 547 U.S. 103, 118 (2006) (dismissing as ―silly‖ the suggestion that a
police officer commits a trespass by reasonably entering a home to protect against a threat).
The tort of intentional infliction of emotional distress (―IIED‖) makes a better analogy to
the privacy tort at issue in this case. State courts and courts in this district have held that an IIED
claim arising out of the arrest itself may be foreclosed by a showing of probable cause. But those
courts also routinely recognize the possibility that—much like the Fourth Amendment requires
that a search be both justified and conducted in a reasonable manner—other factors might allow
an arrest properly based on probable cause to give rise to tort liability. See Zalaski v. City of
Hartford, 704 F. Supp. 2d 159, 176 (D. Conn. 2010) (―As a matter of law—absent other factors
that may constitute ‗extreme and outrageous‘ conduct—an arrest will not be considered
intentional infliction of emotional distress if the arresting officer has probable cause to make the
arrest.‖); Washington v. Blackmore, No. CV 06-5000704, 2008 WL 5156436, at *7 (Conn.
Super. Ct. Nov. 10, 2008), aff’d, 119 Conn. App. 218 (2010) (dismissing plaintiff‘s IIED claim
29
because he failed to allege that ―the arrest was any more outrageous than a standard arrest‖);
O’Brien v. Perry, No. CV 980584503S, 1999 WL 124329, at *4 (Conn. Super. Ct. Feb. 19,
1999) (holding that public policy prevents IIED claims arising out of police conduct ―to
effectuate an otherwise valid arrest not involving the use of unreasonable force‖) (emphasis
added); see also McKelvie v. Cooper, 190 F.3d 58, 63 (2d Cir. 1999) (reversing a grant of
summary judgment for the defendants on an IIED claim where the plaintiff alleged, inter alia, an
unreasonably aggressive examination and extended detention).
Adopting that logic, I determine that, although an arrest based on probable cause might
foreclose an invasion of privacy claim based on the arrest itself, in this case the highly public
manner in which the search was conducted constitutes an additional factor sufficient to allow the
state-law tort to proceed. The defendants do not point to any authority, nor could I find any,
holding that probable cause to arrest or even search immunizes subsequent constitutionally
unreasonable conduct from state law privacy torts. See Lin v. Lozinski, No. CIV. 300-CV-2045
(AHN), 2004 WL 1543194, at *7 (D. Conn. Mar. 1, 2004) (where defendant-officer had probable
cause to arrest and conduct some aspects of the search, dismissing invasion of privacy tort on the
elements). Moreover, it is unclear what public policy would be furthered by protecting from state
torts police officers who will nevertheless be subject to liability under federal law for their
unreasonable acts.
Accordingly, that portion of the verdict can stand. Further, I note that although the jury
did not apportion the damages by claim, to the extent that any of the damages might be based on
the privacy tort in particular, the defendants would not be protected by federal qualified
immunity. Jenkins v. City of New York, 478 F.3d 76, 86 (2d Cir. 2007) (―‗Qualified immunity‘
protects an official from liability under federal causes of action but is not generally understood to
30
protect officials from claims based on state law.‖). Because of the jury‘s award of punitive
damages, which entails a necessary finding that the defendants acted with malice, Connecticut
state law qualified immunity also would not apply. See Violano v. Fernandez, 280 Conn. 310,
319–20 (2006) (enumerating exceptions to immunity for a municipal employee, including that
―liability may be imposed for a discretionary act when the alleged conduct involves malice,
wantonness or intent to injure‖).
F. Amount of Punitive Damages
The jury awarded Cotto a total of $60,000 in punitive damages, apportioned as follows:
$40,000 from Davis, $10,000 from Tetrault, and $5,000 each from Buller and Schreiner.
Although I have upheld the jury‘s substantive verdict, I determine that those numbers are
excessive given the conduct at issue.
―If a district court finds that a verdict is excessive, it may order a new trial, a new trial
limited to damages, or, under the practice of remittitur, may condition a denial of a motion for a
new trial on the plaintiff's accepting damages in a reduced amount.‖ Lee v. Edwards, 101 F.3d
805, 808 (2d Cir. 1996) (internal quotation marks and citation omitted). In determining whether
an award of punitive damages is excessive, I must keep in mind that the purpose of punitive
damages is to punish and deter. Id. The Supreme Court, in BMW of North America, Inc. v. Gore,
517 U.S. 559 (1996), instructed that courts should consider three factors in an excessiveness
inquiry:
(1) the degree of reprehensibility of the tortious conduct; (2) the ratio of
punitive damages to compensatory damages; and (3) the difference
between this remedy and the civil penalties authorized or imposed in
comparable cases.
Lee, 101 F.3d at 809 (quoting Gore, 517 U.S. at 575, and adopting its ruling in the federal
context). Although the defendants did not formally object to the amount of punitive damages
31
awarded, I may review the size of the award for excessiveness and sua sponte offer remittitur as
an alternative to a new trial. Peterson v. Ctiy of Nassau, 995 F. Supp. 305, 312 (E.D.N.Y. 1998)
(citing Bender v. City of New York, 78 F.3d 787, 795 (2d Cir. 1996)).
First, I consider the ―reprehensibility‖ of the defendants‘ conduct. Gore instructs that the
mere fact that tort liability should be imposed does not mean that substantial punitive damages
are also warranted. Gore, 517 U.S. at 580. Instead, I must consider whether there are aggravating
factors that make the conduct particularly reprehensible and deserving of punitive damages, such
as whether the defendant used violence; acted with deceit or malice; or has engaged in repeated
misconduct. Id. at 575–76.
All of the defendants are police officers; their training in that role should have given them
―notice as to the gravity of misconduct under color of [their] official authority,‖ as well as the
fact that such misconduct could leave to punitive damages. Lee, 101 F.3d at 811. The jury could
reasonably have found that Davis acted with malice, and subjected Cotto to both physical
discomfort and deep humiliation when he strip-searched Cotto on a cold night in full view of the
public. Moreover, his conduct involved the abuse of special authority entrusted to him as a police
officer. See Lee, 101 F.3d at 811. Additionally, the jury could reasonably have found that the
search was racially motivated. See Patterson v. Balsamico, 440 F.3d 104, 121 (2d Cir. 2006)
(observing that an assault was a ―thoroughly reprehensible incident, particularly in light of its
racial motivation‖). In sum, his conduct is clearly reprehensible, albeit less so than the use of
physical violence. See id. (―[P]hyiscal assaults generally demonstrate a higher degree of
reprehensibility than nonviolent crimes.‖) (citing Gore, 517 U.S. at 575–76).
The jury also could reasonably have found that the other defendants acted with malice
when they laughed at Cotto instead of intervening to protect his privacy during the search. The
32
jury‘s award correctly recognizes that, as the direct perpetrator of the search, Davis‘ actions were
more culpable than the other defendants‘ inactions. The distinction drawn between Tetrault and
Buller and Schreiner, however, is not supported on this ground—although Tetrault was closer to
Davis during the search and provided him with a flashlight, those two details do not appear
sufficiently more egregious to justify doubling the damages awarded against him.
I decline to consider the second Gore factor, regarding the ratio between the
compensatory and punitive damages. As the Lee court pointed out, that factor is ―not the best
tool‖ where nominal damages have been awarded, and where the harm done is not easily
translated to monetary terms. Lee, 101 F.3d at 811.
Finally, I consider awards in comparable cases. In DiSorbo v. Hoy, 343 F.3d 172 (2d Cir.
2003), which involved an officer‘s use of egregious physical violence, the Second Circuit
reduced the punitive damages award to $75,000, observing that number was ―comparable to the
upper limits of the punitive damages awarded in similar police brutality cases.‖ Id. at 189. It
follows that the $60,000 award in the present case—which does not involve acts of violence—is
excessive.
Instead, the present case is more akin to Wilson v. Aquino, 233 F. App‘x 73 (2d Cir.
2007), where the Second Circuit upheld an award of $25,000 in punitive damages without
discussion. Wilson also involved a strip search conducted in an improper manner and
accompanied by verbal abuse of the plaintiff. Id. at 77–78. The officers kicked and punched the
plaintiff during the search, but they also conducted the search in a private office rather than in the
cold on the public street. Id.
District court cases in this circuit also support the inference that a lower range of
damages is appropriate in strip search cases. For instance, in Gonzalez v. City of Schenectady,
33
No. 1:00-CV-0824, 2002 WL 34945084 (N.D.N.Y. Dec. 30, 2002), a district court reduced the
actual damages awarded for an unreasonable strip search conducted at the police station to
$40,000, and upheld punitive damages against a by-standing female officer and supervisor in the
amount of $2,500 and $10,000 respectively. Id. at *6–7. In Kelleher v. New York State Trooper
Fearon, 90 F. Supp. 2d 354 (S.D.N.Y. 2000), a district court reduced the punitive damages
awarded for an unjustified strip search conducted in private and apparently without other
aggravating features to $25,000. Id. at 364.
In light of the above, I order remittitur in the amount of $25,000 against Davis, and
$2,500 each against Tetrault, Buller, and Schreiner. If Cotto fails to accept that amount within 30
days of this ruling by filing a motion with the court, I will schedule a new trial on the question of
damages.
IV.
Conclusion
For the foregoing reasons, the defendants‘ motion (doc. 168) is denied in its entirety, and
the verdict in favor of Cotto is sustained. The amount of punitive damages is reduced as stated
above.
So ordered.
Dated at Bridgeport, Connecticut, this 19th day of January 2016.
/s/ STEFAN R. UNDERHILL
Stefan R. Underhill
United States District Judge
34
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?