Jackson v. The City of New York et al

Filing 111

MEMORANDUM AND OPINION: For the reasons in the attached, Defendants' 104 motion for judgment as a matter of law is granted in part and denied in part. Defendants Deferrari, Reo, Heerey, MacNear, and Boneta are entitled to qualified immunity re garding the false arrest verdicts against them, and those verdicts, both for liability and for damages, must be overturned. However, Defendants Failla and Tellado are not entitled to qualified immunity for the false arrest verdict against them, and n one of the Defendants who were found liable for excessive force are entitled to qualified immunity for the excessive force verdicts against them. Defendants shall have 28 days after the issuance of this Order in which to file their motion for judgment as a matter of law under FRCP Rule 50, or alternatively for a new trial under FRCP Rule 59, as to the remaining Defendants. Ordered by Judge Pamela K. Chen on 2/15/2017. (Gregorio, Heather) Modified on 2/15/2017 (Abdallah, Fida).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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LARRY JACKSON,
Plaintiff,
- against -

MEMORANDUM & ORDER
11-CV-3028 (PKC)

JESUS TELLADO, STANLEY MACNEAR,
JOHN CZULADA, JAMES T. GHERARDI,
RYANN DUNN, ROBERT J. DEFERRARI,
KENNETH BRAUMANN, BEN KURIAN,
PETER BONETA, THOMAS E. REO,
MICHAEL FAILLA, AND BRIAN E.
HEEREY,
Defendants.
-------------------------------------------------------x
PAMELA K. CHEN, United States District Judge:
On February 3, 2016, after a seven-day trial, the jury returned a verdict on Plaintiff Larry
Jackson’s claims under 42 U.S.C. § 1983 against New York City Police Department Officers
Jesus Tellado, Stanley MacNear, John Czulada, James Gherardi, Ryann Dunn, Robert Deferrari,
Kenneth Braumann, Ben Kurian, Peter Boneta, Thomas Reo, Michael Failla, and Brian Heerey
(collectively, “Individual Defendants”). The jury determined that Jackson had been falsely
arrested and subjected to excessive force, and awarded Jackson $12,500,000 in compensatory
damages, as well as punitive damages against each Defendant in varying amounts.1

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The jury awarded $300,000 in punitive damages against Tellado; $300,000 against
MacNear; $275,000 against Czulada; $150,000 against Gherardi; $150,000 against Dunn;
$250,000 against Deferrari; $50,000 against Braumann; $400,000 against Kurian; $125,000
against Boneta; $275,000 against Reo; $350,000 against Failla; and $50,000 against Heerey, for
a total of $2,675,000 in punitive damages. (Dkt. 95 (“Verdict Sheet”).)

Individual Defendants now move for qualified immunity as to each Defendant and each
claim. For the reasons set forth below, Defendants’ motion is GRANTED in part and DENIED
in part.2
BACKGROUND
The Court assumes the parties’ familiarity with the procedural history of this case and the
trial record, and discusses them only to the extent they are relevant to the resolution of the instant
motions.
I.

PROCEDURAL HISTORY
On June 24, 2011, Jackson filed his complaint against the City of New York and 20 John

Doe defendants. (Dkt. 1.) After some initial discovery, Jackson filed his Amended Complaint
on March 1, 2013, naming Individual Defendants, as well as Officers Patrick D’Onofrio and
Robert E. Russo. (Dkt. 30.)3 Defendants moved for summary judgment on August 20, 2013
(Dkt. 56), and the Court granted that motion in part on March 17, 2014, dismissing Defendant
D’Onofrio and the City of New York. (Dkt 67.) The parties proceeded to trial on January 25,
2016, but during trial, stipulated to the dismissal of Defendant Russo on February 1, 2016 (dkt.
92), which the Court so ordered the next day.
II.

FACTUAL OVERVIEW4

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Following the issuance of this Memorandum and Order, judgment will issue, and
Defendants will have 28 days in which to file their proposed motion for judgment as a matter of
law under Federal Rule of Civil Procedure (“FRCP”) 50 and/or for a new trial under FRCP 59.
(See 2/4/16 Dkt. Order.)
3

Both in his original and amended complaints, Jackson named multiple John Doe
defendants, but Plaintiff’s counsel affirmed at the beginning of the trial that no such defendants
remained in the case. (1/25/16 Tr. at 61.)
4

When a defendant seeks judgment as a matter of law after trial on the basis of qualified
immunity, the Court “must view all disputed facts in the light most favorable to…the prevailing
2

A. Testimony of Plaintiff and Several of His Witnesses5
On August 21, 2010, Plaintiff, an off-duty police officer, hosted a party for his daughter’s
twenty-first birthday at his home. (1/27/16 Tr. 17–18, Jackson.) Late in the evening, partygoers
congregating in front of Plaintiff’s house were approached by a group of people, including a man
who appeared to have a gun. (Id. at 23–24; 1/26/16 Tr. 92–93, Strong.) Plaintiff came out of his
house to move the group away from his home, but at some point, there was at least one call to the
police, placed by Plaintiff’s fiancée Charlene Strong, informing them that a man with a gun was
outside of their home. (1/26/16 Tr. 14–15, Strong; 1/27/16 Tr. 24, Jackson.)
As Plaintiff returned to his house, two police officers—Defendants Czulada and
MacNear—arrived at the home in response to the 911 call. (1/27/16 Tr. 29–31, Jackson.)
Plaintiff approached Czulada and MacNear and said to MacNear, “hey, Sarge, I’m MOS”
meaning he was a member of the police service. (Id. at 36.) While Plaintiff, Czulada, and
MacNear were talking outside, Plaintiff’s niece, Tiffanie Johnson, ran out from Plaintiff’s home
and stated that there were people fighting inside, at which point Plaintiff, Czulada, and MacNear
all entered the home. (Id. at 39; 1/28/16 Tr. 78–79, MacNear.)
When Plaintiff got inside, he saw two of the male party guests, Taimar Bonaparte and
Jason Wilkinson, on the floor. (1/27/16 Tr. 39–40, Jackson.) After Plaintiff walked into the
kitchen to determine what was going on, he turned around to see Czulada “standing there with

party.” O’Hara v. City of New York, 570 Fed. App’x 21, 23 (2d Cir. 2014) (summary order).
See also Zellner v. Summerlin, 494 F.3d 344, 370 (2d Cir. 2007) (explaining that the district
court “must draw all reasonable inferences in favor of the nonmoving party . . . and . . . must
disregard all evidence favorable to the moving party that the jury is not required to believe”)
(quoting Reeves v. Sanderson Plumbing, 530 U.S. 133, 150–51 (2000)).
Plaintiff’s trial testimony was substantially corroborated by the testimony of his friends
and family members—Taimar Bonaparte, Derrick Collins, Charlene Strong, Quinton Thomas,
Tiffanie Johnson, Marilyn Murphy, and Marcus Johnson.
5

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[an] ASP baton held in both hands.” (Id. at 41.) Czulada told Plaintiff to “back the fuck up,” to
which Plaintiff responded by “put[ting] [his] hands up” and telling Czulada that he (Plaintiff)
was a police officer and that it was his house. (Id.) According to Plaintiff, Czulada responded
by pushing him back with the baton. (Id.) Plaintiff lost his balance. (Id. at 42.) When he got
back up, Plaintiff asked Czulada what he was doing, saying “I’m a cop, too.” (Id. at 42.) In
response, Czulada punched him in the face. (Id.) When Czulada hit him a second time, Plaintiff
“grabbed him by his shoulders” to prevent Czulada from hitting him again. (Id. at 43.) When
Plaintiff let go, Czulada stepped back and tripped over a cooler. (Id. at 44.) Plaintiff tried to
help him up, at which point Czulada “took another swing” at him. (Id. at 45.)
Someone Plaintiff could not see then lifted him up with an ASP baton around his neck.
(Id. at 46.) Plaintiff later learned that the person was Defendant Kurian. (Id. at 105.) Kurian
kept telling Plaintiff to relax, and Plaintiff kept responding that he was relaxed, but that he
couldn’t breathe. (Id. at 47.) Plaintiff and Kurian fell over the arm of the couch onto the couch
and onto Iris Strong, Plaintiff’s 79-year-old mother-in-law who was sitting on the couch at that
moment and who “passed out.” (1/27/16 Tr. 48-49, 51, Jackson.) While Plaintiff and Kurian
were on the couch, Plaintiff felt another officer trying to grab Plaintiff’s hands. (Id. at 49.)
Charlene Strong, testified that when she entered the house, she saw Jackson being choked
with a baton, and that Jackson’s “eyes [were] rolling to the back of his head.” (1/26/16 Tr. 107–
08, Strong.) She testified that people were yelling, “He’s an officer,” “He’s an officer,” “get off
of Larry”, and “Why are you choking him?” (Id. at 108–09.) Strong observed that none of the
officers in the house were trying to intervene, and were “allowing this process to happen.” (Id.
112.) Tiffanie Johnson, Plaintiff’s niece, testified that the cops inside were “yoking [Plaintiff]
up,” and “attacking him.” (1/29/16 Tr. 18–20, T. Johnson). She testified that one officer

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“grabbed his right side, another one grabbed [Plaintiff’s] left side,” and “[a]nother one came
behind and choke[d] him.” (Id. at 20.) Marcus Johnson, Plaintiff’s nephew, testified that an
officer, presumably Kurian, ran in during Plaintiff’s altercation with Czulada, “jumped up and
threw his baton around [Plaintiff’s] neck and pretty much choked him with it to bring him
down.” (1/29/16 Tr. 85–86, M. Johnson.)
The officers let Plaintiff go, at which point he saw two other officers taking Bonaparte
out of the house and slamming him against the trunk of a car. (1/27/16 Tr. 53, Jackson.)
Plaintiff went to the front door of his house and, from the doorway, said, “Wait a minute, guys”.
Plaintiff was “then…hit in the back of the head with something” by someone he could not see.
(Id. at 54–55.) In response to being struck in the head, Plaintiff ran out of his house and to the
street curb. (Id.) He ran past six or seven officers, and knelt down near the curb. (Id. at 56.) As
Plaintiff went to reach into his pocket to get his ID, officers started hitting him with batons in the
back of his legs and on his back, hitting him “upward of 20, 30 times.” (Id. at 56–57.)
Bonaparte observed “more than ten” officers around Plaintiff in the street, “swinging and hitting
[him].” (1/25/16 Tr. 26–27, Bonaparte.) Plaintiff could tell by the pants and shoes of the people
hitting him that they were officers. (1/27/16 Tr. 57, Jackson.) Plaintiff lay on his stomach in the
street while a semicircle of officers proceeded to hit him with batons and to roll the batons over
the back of his ankles. (Id. at 58–60.) Two officers were positioned with their knees on his
back, while the officers tried to get his arms. (Id. at 60.) One officer was poking him in the side
with a baton and kicking him, saying “give me your arm, stop resisting me, give me your arm.”
(Id.) Plaintiff told the officer that he could not give him his arms because they were underneath
him and there was too much weight on his back. (Id. at 61.)

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Strong testified that she saw the officers in a circle around Plaintiff, with their hands
linked together, and that they were hitting him in the head, back, and side with their batons.
(1/26/16 Tr. 128–29, Strong.) Marilyn Murphy, Plaintiff’s sister-in-law, testified that a “whole
swarm of police officers . . . were beating [Plaintiff] down” and “wouldn’t stop beating on
[him]” with billy clubs. (1/29/16 Tr. 57–58, Murphy.) She also testified that she saw the
officers use a taser on him. (Id. at 65.) Marcus Johnson testified that the officers pulled Plaintiff
outside in handcuffs and started beating him. (1/29/16 Tr. 91, M. Johnson.)
When the officers got off of him, Plaintiff “stuck [his] arm out” and “let them put the
cuffs” on because he “figured it would be over” and they could “straighten this out.” (1/27/16
Tr. 62, Jackson.)
After he was handcuffed, Plaintiff “looked up to one of the officers” and said “Guys, this
was unnecessary….I’m a fellow cop, too.” In response, they pepper sprayed him. (Id. at 62.)
The officers proceeded to search Plaintiff, at which point Czulada ran over to Plaintiff, called
him a “fucking dirt bag”, and said, “If you’re really a cop, where’s your ID?” (Id. at 64.) After
Plaintiff told Czulada that the ID was in his right front pocket, an officer pulled it out of
Plaintiff’s pocket. (Id. at 64.) As the officer was retrieving the ID, Plaintiff looked up and
noticed Defendant Tellado, a captain, standing there, with between seven and nine officers
standing around. (Id. at 64–65.) Plaintiff testified that when Captain Tellado looked at the ID,
he made a “facial gesture” like “oh, shit.” (Id. at 66–67.) Plaintiff then heard Captain Tellado
tell one of the officers to get Plaintiff up and take the handcuffs off. (Id. at 67.) At that point, all
of the officers left except Captain Tellado and the officer Captain Tellado had told to take the
handcuffs off, presumably MacNear. (Id. at 68.) MacNear did not remove Plaintiff’s handcuffs,

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and Tellado again told him to do so. (Id. at 68–70.) Tellado then left, saying that he would be
back, but was going to check on the lady that needed assistance. (Id. at 70.)
Two additional non-defendant officers arrived at the scene, and the officer with Plaintiff
asked them to put Plaintiff in the police car. (Id. at 70.) Plaintiff told the two officers that
Captain Tellado had directed the other officer to take off the handcuffs, but the two officers
responded that they had not been told that. (Id. at 71.) The two officers put Plaintiff in the back
of the police car without removing the handcuffs. (Id.)
Plaintiff was taken to the police station, where he remained for several hours before being
released. (Id. at 96.)
B. Defendant MacNear’s Testimony
Defendant MacNear testified that he responded to Plaintiff’s house with Czulada after
receiving a dispatch call for a man with a gun, followed by a call stating that an officer needed
assistance. (1/28/16 Tr. 67, 73, 77, MacNear) MacNear heard screams coming from inside the
house and followed Czulada inside. (Id. at 78–79.) As MacNear entered the home, he observed
ten to fifteen people inside, including three different individuals “pushing and shoving” each
other, and Czulada trying to break things up. (Id. at 84, 90.) Having decided that the scene was
“getting out of hand,” MacNear requested that additional units come to the location. (Id. at 84–
85.) MacNear observed Plaintiff standing between the two individuals who were fighting—the
same men Czulada was trying to separate. (Id. at 92.) MacNear did not know whether Plaintiff
was trying to break up the fight. (Id.) MacNear, who was trying to break up a different fight, did
not “continuously” observe Czulada and Plaintiff. (Id. at 94.) When he next saw Czulada,
Czulada was “on the ground,” with Plaintiff “standing above him” “swinging his arms” with his
“fists cocked.” (Id. at 95–97, 99.) MacNear then saw Plaintiff strike Czulada in the head while

7

Czulada was on the floor. (Id. at 100, 115.) MacNear did not know what had happened before
he saw Plaintiff strike Czulada. (Id. at 104.)
The next time MacNear saw Plaintiff, he was outside of the house in handcuffs. (Id. at
103, 106; 2/1/16 Tr. 134, Czulada.) Czulada told MacNear he had been struck in the head and
pointed to Plaintiff as the person who had hit him. (Id. at 104, 105.) MacNear assumed Plaintiff
was in handcuffs for hitting Czulada. (Id. at 106.) MacNear told Captain Tellado that Plaintiff
had struck Czulada, at which time Tellado explained that Plaintiff was an off-duty officer. (Id. at
111.) Tellado told MacNear to remove Plaintiff’s handcuffs, but MacNear “didn’t have the key”
on him. (Id. at 113.) Tellado also ordered MacNear to move the police vehicles so that the
ambulances could pull up, and MacNear moved the vehicles, leaving Plaintiff in handcuffs. (Id.
at 113–14.)
C. Defendant Czulada’s Testimony
Defendant Czulada arrived at Plaintiff’s home with MacNear, in response to a radio
transmission of a man with a gun, which turned into a report of an officer in need of assistance.
(2/1/16 Tr. 79–80, Czulada). He heard someone calling for help inside the house and ran inside.
(Id. at 85–86.) Once inside, Czulada saw people “pushing, yelling, screaming” at each other, and
“got in between [Plaintiff] and the pile of people that were fighting.” (Id. at 90, 92.) Czulada
“kind of pushed [Plaintiff] back a little bit,” at which time Plaintiff “turned toward [him] and
“pushed [him] with both hands.” (Id. at 90.) After Czulada “nudged” Plaintiff back from the
crowd, Plaintiff “pushed” Czulada. (Id. at 95–96.) Czulada’s back was against a wall and
Plaintiff, appearing to be angry, approached “in a threatening manner”. (Id. at 95–96.) Czulada
responded by punching Plaintiff in the face. (Id. at 96–97.) Plaintiff then punched Czulada in

8

the head multiple times, and Czulada fell and hit the back of his head on a doorknob. (Id. at
100.) Plaintiff continued to punch Czulada while he was on the floor. (Id. at 100–01.)
Czulada then went outside and told MacNear that he had been assaulted, and identified
Plaintiff, who, at that point, was lying in the street in handcuffs, as the person who had assaulted
him. (Id. at 134.) Czulada admitted on cross-examination that the reason he didn’t tell anyone
that he had punched Plaintiff in the face was because he “knew that [he had] operated outside the
[police] department guidelines.” (Id. at 109.) When Czulada saw Plaintiff handcuffed in the
street, Czulada called him a “liar.” (Id. at 112.)
D. Defendant Gherardi’s Testimony
Defendant Gherardi arrived at Plaintiff’s home with his partner Defendant Dunn in
response to a radio call of a man with a firearm. (2/2/16 Tr. 184, Gherardi.) Before they arrived,
he heard MacNear yelling over the radio for additional units. (Id. at 185.) After arriving at the
scene and entering the house, Gherardi saw a “large group” of people inside, and Plaintiff
“holding Officer Czulada up against the wall with his left hand.” (Id. at 187.) He saw Plaintiff
“striking” Czulada “in the face” with “hard” force. (Id. at 188, 196.) Gherardi “placed [his]
hand” on Plaintiff’s shoulder to get him to move away from Czulada. (Id. at 191.) Gherardi then
turned away, in an effort to “set a perimeter” around Plaintiff and Czulada, but “one of the
civilians from the home grabbed [him] from behind and threw [him] to the floor.” (Id. at 193.)
Gherardi then got up and helped clear the house. (Id. at 194.)
E. Defendant Dunn’s Testimony
Defendant Dunn arrived with Gherardi in response to radio transmissions about a man
with a gun, shots fired, and an officer in need of assistance. (2/1/16 Tr. 26, Dunn.) When Dunn
arrived, he heard an officer inside the house call for assistance. (Id. at 28.) While standing at the

9

doorway, he saw a “big fight” in the house, “people pushing, cursing at each other, some people
throwing punches.” (Id. at 30.) Once he entered the house, he saw Plaintiff punching Czulada
against a wall. (Id. at 30, 33.) He also saw Plaintiff “[t]hrowing punches while Czulada was in
the fetal position.”

(Id. at 36.)

He made his way to Czulada and Plaintiff, “got behind

[Plaintiff][,] . . . put [his] arms around [Plaintiff’s]. . . waistline and just leaned backwards, to try
to get him off Officer Czulada.” (Id. at 36.) Dunn and Plaintiff “fell over the couch.” (Id. at
37.) At that point, Dunn “scurried out from underneath” Plaintiff, and “that was that.” (Id. at
42.) That was the last time Dunn saw Plaintiff. (Id. at 44.)
F. Defendant Braumann’s Testimony
Defendant Braumann arrived at Plaintiff’s home with his partner, Kurian, in response to a
radio dispatch that started out as a dispute with a firearm, and then switched to officer in need of
assistance. (2/2/16 Tr. 10, Braumann.) When Braumann and Kurian were a block or two from
the location, Braumann “heard an on-duty officer, which was either Sergeant MacNear or Officer
Czulada[,] scream over the radio for additional units.” (Id. at 11.) When they arrived, Braumann
and Kurian ran to the front door. (Id. at 13.) Braumann testified that he saw a “giant fight inside
the house”, and observed both MacNear and Czulada inside. (Id. at 14.) Braumann did not see
Plaintiff inside the house, and did not know if Plaintiff was inside when Braumann entered. (Id.
at 17–18.) Braumann testified that he had his ASP baton in his hand when he walked into the
house, because he “felt there was a threat of some sort in the house,” but when he saw the large
crowd, he put it back in his holster because he “didn’t want [it] to be taken out of [his] hands.”
(Id. at 20.) Soon after Braumann entered the house, a “pile of people fell down on top of [him]”,
causing him to fall to the ground. (Id. at 14.) Captain Tellado then entered the living room, and
told everyone to leave the house. (Id. at 22.)

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G. Defendant Kurian’s Testimony
Defendant Kurian entered the house with Braumann. (2/2/16 Tr. 47, Kurian.) The first
thing Kurian saw when he entered was MacNear on top of a broken coffee table. (Id. at 47–48.)
He also saw Czulada “pinned” up against the wall by Plaintiff. (Id. at 50.)6 Kurian saw Plaintiff
“striking” Czulada “[u]p above the face or the neck/chest area.” (Id. at 52.) Kurian ran over and
“grabbed [Plaintiff’s] right arm,” “wrapped both [his] hands around [Plaintiff][,] and . . . was
trying to pull [Plaintiff] [to] prevent him from striking Officer Czulada.” (Id. at 53.) Kurian
grabbed Plaintiff “with both . . . hands, as if in a bear hug around [Plaintiff’s] right arm.” (Id. at
54.) Kurian had his ASP baton with him, but did not have it out. (Id. at 55.) As Kurian was
wrapped around Plaintiff’s arm, Dunn “had come around to the other side and grabbed [Plaintiff]
either by his hand, his other arm or the other part of his body . . . and was trying to pull him off
[of Czulada].” (Id. at 58.) Then Kurian, Dunn, and Plaintiff all fell back onto the sofa. (Id.)
Kurian did not recall if Plaintiff was saying that he was an officer. (Id. at 62.)
Kurian’s attention was diverted by a teenage girl who assaulted him and started clawing
at his face. (Id. at 63–65.) After he attempted to arrest her, Captain Tellado arrived and told
everyone to get out of the house. (Id. at 69–70.) Kurian met up with Braumann, and they got in
their duty car and left the scene. (Id. at 73–74.)
H. Defendant Reo’s Testimony
Defendant Reo arrived at Plaintiff’s house in response to a call for additional units from
someone he thought was MacNear. (1/29/16 Tr. 179, Reo). He arrived to see four police cars
and about twenty to thirty people outside. (Id. at 179–80.) In order to protect the officers inside

6

Kurian admitted that he might have missed some of the interaction between Plaintiff
and Czulada. (Id. at 50–51.)
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the house, Reo placed himself in the entrance to the house and blocked people from entering.
(Id.) Plaintiff approached Reo in the doorway and tried to enter the house, but Reo would not let
him through. (Id. at 182.)7 Suddenly, Reo heard Jackson yelling, while looking past Reo, “You
all can’t fucking do that, you all can’t do that,” in the direction of two officers who were taking a
shirtless man in handcuffs out of the house. (Id.) Reo told Plaintiff, who was trying to push past
him, “You’re not getting by me.” (Id. at 182–83.) Plaintiff “g[ave] [Reo] a two-handed shove to
[his] chest.” (Id.) At that point, “two, maybe three officers grabbed [Plaintiff] and tried to place
him in handcuffs.” (Id. at 185.) When Reo regained his footing, he attempted to arrest Plaintiff
for having shoved him. (Id. at 185–86.) He approached and “tried to grab [Plaintiff’s] arm” and
“tried to grab a leg.” (Id. at 190.) Plaintiff “went down to the ground.” (Id. at 190–91.)
“[M]aybe four, five, six officers were trying to pull [Plaintiff’s] arms [to] get them behind his
back to handcuff him,” and “[e]ventually, he was handcuffed.” (Id. at 191.) Reo was the
arresting officer. (Id. at 196–97.) Captain Tellado arrived and gave an order to un-handcuff
Plaintiff. (Id. at 192.)
Reo did not see any ASP batons out, and did not see any officers strike Plaintiff. (Id. at
191.) However, he did not have an “unobstructed view” of Plaintiff while Plaintiff was in the
street and he “[didn’t] know what everybody else was doing.” (Id. at 192–93.)
I. Defendant Boneta’s Testimony
Defendant Boneta arrived at the scene as an officer was bringing a shirtless man out of
the house in what Boneta assumed were handcuffs. (2/1/16 Tr. 10, 13, Boneta). Boneta heard
someone say, “you can’t do that, I’m on the job.” (Id. at 10.) He turned and saw a person he

Reo’s testimony, placing Plaintiff outside the house at that moment, is contradicted by
all of the other testimony and evidence introduced at trial.
7

12

later came to believe was Plaintiff8 “push[]” Reo “right in front of me.” (Id. at 10–11.) Before
Boneta could confront Plaintiff, other officers did so, “box[ing] [Boneta] out”. (Id. at 10, 14.)
Thinking that the other officers “got this”, Boneta “turned around and . . . exercised crowd
control.” (Id. at 10, 14.) Boneta did not look to see what was happening between the officers
and Plaintiff. (Id. at 14.) After a few minutes, Captain Tellado advised the officers to resume
patrol, and Boneta left the scene with his partner. (Id. at 13, 16–17.)
J. Defendant Tellado’s Testimony
Defendant Tellado, the duty captain present at the scene, testified that when he arrived at
the house, he saw upward of 50 people outside. (2/1/16 Tr. 171–72, Tellado.) When he entered
the house, he saw people lying on the floor handcuffed with police officers next to them, and
heard yelling and screaming. (Id. at 173–75.) He did not see Plaintiff inside the house. (Id. at
178.) Tellado ordered officers to take the two handcuffed individuals out of the house. (Id.)
Tellado then realized that an ambulance was needed for two individuals inside the house—the
elderly woman and an individual who might have been injured. (Id. at 178.) Tellado then left
the house because the situation was “calming down.” (Id. at 180.)
Once outside, Tellado walked to the street because he saw “a certain commotion” with
three or four officers struggling with somebody. (Id. at 183.) He saw three or four officers
standing around an individual lying on the ground handcuffed. (Id. at 183–84.) At some point,
an officer told Tellado that “the reason [Plaintiff] was in handcuffs is because he hit a police
officer.” (Id. at 187.) At that time, none of the officers had weapons in their hands. (Id. at 184.)
After Plaintiff told Tellado that Plaintiff was a police officer, and that the other officers had
pulled his badge out of his pants, Tellado “asked the officers to assist [Plaintiff] and lift him up
Boneta’s belief was based on seeing Plaintiff’s photograph subsequently in the
newspaper. (2/1/16 Tr. 11, Boneta.)
8

13

on his own two feet”, and “asked them to remove the cuffs.” (Id. at 190.) After giving that
order, Tellado did not stay there to see if anyone removed the handcuffs because he heard
screaming from inside the house and “went [to] the person that needed medical attention . . . .”
(Id. at 196–97.)
K. Defendant Deferrari’s Testimony
Defendant Deferrari testified that while en route to the scene, he heard over the radio that
there was “possibly an MOS” at the location, as well as an officer screaming for assistance.
(2/2/16 Tr. 109–11, Deferrari.) When Deferrari arrived, he ran toward the house. (Id. at 113.)
From the doorway, he saw people “fighting, pushing, shoving, [and] throwing people to the
ground” inside. (Id.) He briefly entered the house, and then was “pulled from the house by an
unknown person” and “punched in the face,” after which he “barricaded [him]self at the
doorway.” (Id. at 113–14.) Deferrari could not see exactly what was going on inside the house
and “wasn’t able to see any officers inside the house.” (Id. at 119.)
Later, Deferrari saw Plaintiff exiting the house with an officer following him and
pointing at him, yelling, “he’s under . . . arrest, he’s a collar, he’s a collar.” (Id. at 121.) Plaintiff
kept walking, and “officers approached [Plaintiff] to place him in handcuffs. (Id. at 124.)
Plaintiff “pulled his arms away from them, [and] swung his arms to keep them from arresting
him.” (Id. at 124–25.)
Deferrari saw “about five or 10” officers surround Plaintiff, “grabbing at his arms trying
to pull them behind his back,” and “[s]ome had their ASPs out hitting him in the legs trying to
get him down to the ground.” (Id. at 131–32.) Deferrari did not see the officers striking Plaintiff
on other parts of his body. (Id. at 132.) Deferrari did not tell the officers to stop “because it
wouldn’t have made a difference” since Plaintiff was resisting arrest. (Id. at 134–35.)

14

L. Defendant Failla’s Testimony
When Defendant Failla arrived on the scene, he saw Plaintiff standing in the middle of
the street with a circle of police officers around him. (1/29/16 Tr. 156–58, Failla.) He saw
Plaintiff “flailing and punching with closed fists at the other officers.” (Id.) Failla was trying to
“assess the whole situation”. (Id. at 159.) He did not see “anybody with anything in their
hands.” (Id.) He saw Plaintiff “punch at a police officer.” (Id. at 160.) At some point
thereafter, Defendant Heerey, Detective Russo, and a “couple of other police officers” brought
Plaintiff to the ground. (Id. at 160–61.) Plaintiff was still “rolling and flailing his arms,” so
Failla, rather than help to restrain Plaintiff, “thought it better to spray [Plaintiff] in the face with
pepper spray” in order to stop Plaintiff from “resisting arrest.” (Id. at 161.) Failla testified that
after he pepper-sprayed Plaintiff, “miraculously . . . [Plaintiff] put his hands behind his back.”
(Id. at 162.) At that point, “they were able to get [Plaintiff] handcuffed and then he [lay] . . . on
the ground for a minute.” (Id. at 163.)
Although Failla had been trained that when he pepper-sprayed someone, he was supposed
to give them water to wash out their eyes, he did not give Plaintiff any water, because he “didn’t
have [it] at the scene” and because he knew an ambulance would be going to the stationhouse.
(Id. at 167.) He walked away “shaking [his] head in disgust” because he had “never seen an
individual who calls himself a police officer act that way to on-duty police officers.” (Id.)
M. Defendant Heerey’s Testimony
Defendant Heerey arrived at the scene with Failla. (1/29/16 Tr. 121, Heerey.) Heerey
saw a group of officers “trying to apprehend” Plaintiff, and Plaintiff was “waving his arms and
indicating that he was not going to be apprehended. (Id. at 122.) Heerey did not know what had
transpired before he arrived. (Id. at 123.) He “ran up . . . [and] grabbed one arm,” another

15

officer9 “had the other arm”, and they “took [Plaintiff] to the ground and . . . attempted to . . .
handcuff[] him.” (Id.) Heerey attempted to arrest Plaintiff because he “appeared to be irrational,
not compliant.” (Id. at 123–24.) Plaintiff “was face first and his hands were underneath him and
[Heerey and Russo] were instructing him to give [them] his hands behind his back and he would
not do so.” (Id. at 125.) Heerey grabbed and struggled with Plaintiff for a while, attempting to
handcuff him. (Id. at 128.) Once Plaintiff was handcuffed, Heerey frisked him for weapons, and
discovered his ID, which identified Plaintiff as an officer. (Id. at 136–38.) Czulada arrived and
yelled angrily at Plaintiff. (Id. at 138.) Heerey helped lift Plaintiff up, and turned Plaintiff and
his property over to another officer, who “knew what was going on.” (Id. at 139–40.)
III.

THE JURY’S VERDICT
A.

Liability and Damages

After seven days of trial, the jury returned a verdict finding that three Defendants—
Deferrari, Reo, and Heerey—were personally involved in falsely arresting Jackson,10 that four

9

Heerey identified the other officer as Detective Russo, who was originally named as a
defendant in this action, see supra at 2, but was later dismissed, by stipulation. (Dkt. 92.)
10

As to both the false arrest and excessive force verdicts, Defendants argue that it was
“not clear what the jury’s final conclusions were,” because the verdict sheet asked the jury to
indicate which defendants “were personally involved in falsely arresting Plaintiff” and
“subjecting [him] to excessive force,” yet “the Court never charged the jury with respect to
personal involvement.” (Dkt. 106 (Def. Mem.) at 21 & n.30; see also id. at 26.) The Court
rejects this argument. To the extent Defendants are asserting that there was an error in the jury
instructions and/or verdict sheet, they failed to preserve that objection, and it has therefore been
waived. See Latsis v. Chandris, 20 F.3d 45, 49 (2d Cir. 1994) (Second Circuit “will not consider
a challenge to a jury charge if a party failed to object at trial.”); see also Fed. R. Civ. Proc. 51
(parties may assign error to a jury instruction only “if that party properly objected,” meaning “on
the record” and “at the opportunity provided” by the court “before the instructions and arguments
are delivered”). While the Court “may consider a plain error in the instructions that has not been
preserved . . . if the error affects substantial rights,” Fed. R. Civ. Proc. 51(d)(2), the Court finds
no such error here. The Court is persuaded that the common sense meaning of the term
“personal involvement” was readily comprehensible to the jurors without the aid of an additional
definition, particularly one that was never requested by Defendants. This conclusion is further
16

Defendants—Tellado, MacNear, Boneta, and Failla—failed to intervene to prevent Jackson’s
false arrest, and that one Defendant—MacNear—was liable as a supervisory officer for
Plaintiff’s false arrest. (Dkt. 95 (“Verdict Sheet”), at 1–2.)
On excessive force, the jury found that four Defendants—Czulada, Kurian, Reo, and
Failla—were personally involved in subjecting Plaintiff to excessive force, that eight—Tellado,
MacNear, Gherardi, Dunn, Deferrari, Braumann, Boneta, and Heerey—had failed to intervene to
prevent Jackson from being subjected to excessive force, and that one—MacNear—was liable as
a supervisory officer for Plaintiff having been subjected to excessive force. (Id. at 3–4.)
The jury awarded compensatory damages in a lump-sum amount of $12,500,000, and
found each Defendant liable for punitive damages, awarding specific amounts as to each
Defendant. See supra n.1.
B.

Qualified Immunity & the Special Verdict Sheet

Following the procedure outlined by the Second Circuit in Stephenson v. Doe, 332 F.3d
68 (2d Cir. 2003), the Court presented the questions of liability to the jury, and reserved the
question of qualified immunity for the Court to decide post-trial if there was a verdict in
Plaintiff’s favor. See id. at 80 (“The court should charge the jury on [plaintiff’s § 1983 claim],
but not on qualified immunity. If the jury returns a verdict . . . against [defendant], the court
should then decide the issue of qualified immunity.”). Following the verdict in Plaintiff’s favor
on two counts, the Court presented the jury with a series of factual questions, known as special

supported by the verdict sheet’s use of the contrasting terms “personally involved” versus “failed
to intervene” and “liable as supervisory officers,” (Verdict Sheet, at 1–2), which were defined in
the jury charges as “alternative” theories to Plaintiff’s claims that Defendants personally
committed the alleged false arrest and use of excessive force. (Dkt. 97 (jury instructions), at 11.)
17

interrogatories (“Special Verdict Sheet”)11, to aid the Court in its determination of the qualified
immunity issue. See Zellner v. Summerlin, 494 F.3d 344, 368 (2d Cir. 2007) (explaining that
when material facts pertaining to immunity are in dispute, the appropriate procedure is to allow
the jury to resolve any disputed facts that are material to the qualified immunity issue). The jury
was asked, as to each Defendant, whether that Defendant believed, even if mistakenly, that: (1)
Plaintiff had assaulted Czulada; (2) Plaintiff had shoved Reo; (3) Plaintiff was “throwing
punches at police officers while out in the street”; and (4) Plaintiff was “resisting arrest while out
in the street”. (Dkt. 99 (“Special Verdict Sheet”).) The jury answered in the affirmative as to at
least one of these questions for each Defendant, except for Tellado and Braumann. (Id.) The
specific responses are discussed below where relevant to a particular Defendant’s entitlement to
qualified immunity.
DISCUSSION
Defendants argue that they are all entitled to qualified immunity as to both Plaintiff’s
false arrest and excessive force claims. As a preliminary matter, the Court notes that it has,
where possible, adopted a view of the jury’s findings that reconcile apparent inconsistencies
between the jury’s verdict and its answers on the Special Verdict Sheet. See Harris v. Niagara
Mohawk Pwr. Corp., 252 F.3d 592, 598 (2d Cir. 2001) (instructing courts faced “with seemingly
inconsistent verdicts” that they “must adopt a view of the case, if there is one, that resolves any
seeming inconsistency”); see also Gallick v. Baltimore & Ohio RR Co., 372 U.S. 108, 119
(1963) (stating that, when dealing with special interrogatories, “it is the duty of the courts to
attempt to harmonize the answers, if it is possible under a fair reading of them,” and explaining
11

The Court allowed the parties ample opportunity to submit and discuss the proposed
special interrogatories, and both sides did so. Notably, Defendants proposed, and certainly did
not object to, the questions that were ultimately included in the Special Verdict Sheet provided to
the jury. (Dkt. 94.)
18

that “[w]here there is a view of the case that makes the jury’s answers to special interrogatories
consistent, they must be resolved that way”).12
I.

LEGAL STANDARDS
Qualified immunity protects government officials from civil damages liability “insofar as

their conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.’”

Pearson v. Callahan, 555 U.S. 223, 231 (2009)

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
To determine whether the relevant law was clearly established, a court considers “the
specificity with which a right is defined, the existence of Supreme Court or Court of Appeals
case law on the subject, and the understanding of a reasonable officer in light of preexisting
law.” Terebesi v. Torreso, 764 F.3d 217, 231 (2d Cir. 2014), cert. denied sub nom. Torresso v.
Terebesi, 135 S. Ct. 1842 (2015). “Even if this Court has not explicitly held a course of conduct
to be unconstitutional, we may nonetheless treat the law as clearly established if decisions from
this or other circuits ‘clearly foreshadow a particular ruling on the issue.’” Id. (quoting Scott v.
Fischer, 616 F.3d 100, 105 (2d Cir. 2010)).
“Whether a defendant officer’s conduct was objectively reasonable is a mixed question of
law and fact.” Zellner, 494 F.3d at 367. The ultimate question of qualified immunity, i.e.,
whether it was objectively reasonable for an officer to believe that his conduct did not violate a
clearly established right, is to be decided by the court. Id. However, whether it was objectively
12

Defendants are, of course, free to make arguments regarding the inconsistency of the
Special Verdict Sheet and the verdict in their forthcoming Rule 50/59 Motion. The Court finds it
necessary, however, to determine what facts would be consistent with both the Special Verdict
Sheet and the verdict for purposes of its qualified immunity analysis. See Zellner, 494 F.3d at
368 (instructing courts to allow the jury to resolve any disputed facts material to the qualified
immunity issue, so that the court may make the “ultimate determination of whether the officer’s
conduct was objectively reasonable. . . .”).

19

reasonable for an officer to believe that his acts did not violate the plaintiff’s clearly established
rights “has its principal focus on the particular facts of the case.” Kerman v. City of New York,
374 F.3d 93, 109 (2d Cir. 2004) (quoting Hurlman v. Rice, 927 F.2d 74, 78–79 (2d Cir. 1991)).
Therefore, as noted above, where facts are in dispute, those “factual questions must be resolved
by the factfinder.” Id.
A court should review the facts that are material to the qualified immunity issue, as
resolved by the jury, to determine whether the officer’s conduct was objectively reasonable.
Zellner, 494 F.3d at 368; see also, e.g., Stephenson, 332 F.3d at 81 (after the district court
receives the jury’s decision as to “what the facts were that the officer faced or perceived,” the
court then may “make the ultimate legal determination of whether qualified immunity attaches
on those facts”) (citation and quotation marks omitted); Lennon v. Miller, 66 F.3d 416, 421 (2d
Cir. 1995) (the ultimate question of entitlement to qualified immunity is one of law for the court
to decide once disputed factual issues are resolved) (quotation marks omitted); Warren v. Dwyer,
906 F.2d 70, 76 (2d Cir. 1990) (“If there are unresolved factual issues which prevent an early
disposition of the defense, the jury should decide these issues on special interrogatories . . . . The
ultimate legal determination whether . . . a reasonable police officer should have known he acted
unlawfully” should be made by the court “on the facts found” by the jury).
Qualified immunity is an affirmative defense that a defendant bears the burden of
proving. Coollick v. Hughes, 699 F.3d 211, 219 (2d Cir. 2012). “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.” Zellner, 494 F.3d at 368. See also Thomas v. Kelly, 903 F. Supp. 2d 237,
254 (S.D.N.Y. 2012) (“Because qualified immunity is an affirmative defense, the defendant

20

bears both the burden of proof and the obligation to request the specific factual interrogatories
that would be necessary to enable the court to make the appropriate legal determination,” such
that “[t]o the extent [] 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.”) (emphasis in original) (quotation marks and
citations omitted). “If the defendant does not make such a request, he is not entitled to have the
court, in lieu of the jury, make the needed factual finding.” Zellner, 494 F.3d at 368.
II.

FALSE ARREST
Defendants argue that they are all entitled to qualified immunity because no reasonable

police officer in their position would have believed that arresting Jackson would violate his
Fourth Amendment rights. The Court finds that five of the seven officers found liable for false
arrest—Deferrari, Reo, Heerey, MacNear, and Boneta—are entitled to qualified immunity.
Failla and Tellado are not.
A.

Legal Standards
1.

False Arrest Standard

A claim for false arrest “rest[s] on the Fourth Amendment right of an individual to be free
from unreasonable seizures, including arrest without probable cause.” Morris v. Silvestre, 604
Fed. App’x 22, 24 (2d Cir. 2015) (summary order) (quoting Weyant v. Okst, 101 F.3d 845, 852
(2d Cir. 1996)). Probable cause to arrest exists where the arresting officers have “knowledge or
reasonably trustworthy information of facts and circumstances that are sufficient to warrant a
person of reasonable caution in the belief that the person to be arrested has committed or is
committing a crime.” Jenkins v. City of New York, 478 F.3d 76, 84–85 (2d Cir. 2007) (quoting
Weyant, 101 F.3d at 852); see also Dickerson v. Napolitano, 604 F.3d 732, 751 (2d Cir. 2010)

21

(same). Probable cause must be evaluated based on the “totality of the circumstances,” United
States v. Thomas, 788 F.3d 345, 350 (2d Cir. 2015), including on the facts available to the officer
or officers at the time of the arrest, Jenkins, 478 F.3d at 87. Under the collective or imputed
knowledge doctrine, “an arrest . . . is permissible where the actual arresting . . . officer lacks the
specific information to form the basis for probable cause . . . but sufficient information to justify
the arrest . . . was known by other law enforcement officials initiating . . . the investigation, and
the other officers have communicated the information they possess individually, thereby pooling
their collective knowledge to meet the probable cause threshold.” Brown v. City of New York,
798 F.3d 94, 99 (2d Cir. 2015) (internal citations and quotations omitted).13
“Liability may attach where an officer fails to intervene, but observes or has reason to
know . . . that a citizen has been unjustifiably arrested,” if the officer “had a reasonable
opportunity to intervene to prevent the violation from happening.” Sanabria v. Tezlof, 11-CV6578, 2016 WL 4371750, at *5 (S.D.N.Y. Aug. 12, 2016); see also Morris v. City of New York,
14-CV-1749, 2015 WL 1914906, at *5 (E.D.N.Y. 2015) (describing the “affirmative duty [of
law enforcement officials] to intervene to protect the constitutional rights of citizens from
infringement by other law enforcement officers in their presence” if there was a realistic
opportunity to intervene).
Additionally, a supervisor may be held liable if he is a “direct participant” in a
constitutional violation such as a false arrest, meaning that he “authorizes, orders, or helps others

The Second Circuit has “decline[d] to extend the collective knowledge doctrine to
cases where . . . there is no evidence that an officer has communicated his suspicions with the
officer conducting the search, even when the officers are working closely together at a scene.”
United States v. Hussain, 835 F.3d 307, 317 n.8 (2d Cir. 2016).
13

22

to do the unlawful acts, even if he . . . does not commit the acts personally.” Terebesi, 764 F.3d
at 234.14
2.

False Arrest and Qualified Immunity

Even if probable cause is lacking in a given case, an officer “will still be entitled to
qualified immunity . . . if he can establish that there was ‘arguable probable cause’ to arrest.”
Zalaski v. City of Hartford, 723 F.3d 382, 389 (2d Cir. 2013); see also Jenkins, 478 F.3d at 84–
85 (“An officer’s determination is objectively reasonable if there was ‘arguable’ probable cause
at the time of arrest—that is, if ‘officers of reasonable competence could disagree on whether the
probable cause test was met.’”) (quoting Lennon, 66 F.3d at 423–24)).

In other words,

“[a]rguable probable cause exists when a reasonable police officer in the same circumstances and
possessing the same knowledge as the officer in question could have reasonably believed that
probable cause existed in . . . light of well established law.” Zellner, 494 F.3d at 369 (quoting
Cerrone v. Brown, 246 F.3d 194, 202–03 (2d Cir. 2001) (internal quotation omitted). See also
Figueroa v. Mazza, 825 F.3d 89, 99 (2d Cir. 2016) (explaining that the doctrine of qualified
immunity “aims to give officials room to act with confidence in gray areas by absolving from
personal liability ‘all but the plainly incompetent or those who knowingly violate the law.’”)
(quoting Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)); Mesa v. City of N.Y., 09-Civ.-10464,
2013 WL 31002, at *9 (S.D.N.Y. Jan. 3, 2013) (“[S]o long as an officer’s actions are objectively
reasonable in light of the factual circumstances at hand, he will remain immune from suit,
whether or not probable cause actually existed.”) (emphasis in original). In the context of a
Although supervisors may also be liable under other theories, such as “gross[]
negligen[ce] in supervising subordinates who committed the wrongful acts or “deliberate
indifference . . . by failing to act on information indicating that unconstitutional acts were
occurring,” Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995), Plaintiff only requested that the
jury be instructed on the theory that Defendants Tellado and MacNear “approved, assisted,
condoned, or purposely ignored” Plaintiff’s false arrest. (Dkt. 80, at 14.)
14

23

failure to intervene claim, “[a] police officer cannot be held liable for failure to intervene unless
such a failure permitted fellow officers to ‘violate a suspect’s clearly established statutory or
constitutional rights’ and was under circumstances making it objectively unreasonable for him to
believe that his fellow officers’ conduct did not violate those rights.”

Morris, 2015 WL

1914906, at *6.
B.

Five Defendants—Deferrari, Heerey, Reo, Boneta, and MacNear—Are
Entitled to Qualified Immunity on the False Arrest Claims; Two
Defendants—Failla and Tellado—Are Not
1. Defendants Found Liable for Personally Participating in the False Arrest

All three Defendants found to have personally participated in the false arrest of
Plaintiff—Deferrari, Reo, and Heerey—are entitled to qualified immunity on the basis of
arguable probable cause to believe that Plaintiff had committed a crime. The jury found that
Deferrari, Reo, and Heerey all believed, even if mistakenly, that Jackson was throwing punches
at police officers while out in the street, and that Reo also believed, even if mistakenly, that
Jackson shoved him. (Special Verdict Sheet, at 4, 6, 7) Based on these beliefs, even if mistaken,
these three Defendants had at least arguable probable cause to arrest Plaintiff, i.e., for attempted
assault in the third degree, harassment in the second degree, and/or resisting arrest. 15 Although
the Special Verdict Sheet did not ask if Defendants’ beliefs were reasonable, the Court finds that
because the jury found that four Defendants believed Plaintiff was throwing punches at police
15

As the jury was instructed, a person is guilty of: assault in the third degree when, with
intent to cause physical injury to another person, a person causes such injury to that person or a
third person, or he recklessly causes physical injury to another person, N.Y. Penal Law § 120.00;
and harassment in the second degree when, with intent to harass, annoy, or alarm another person,
a person strikes, shoves, kicks, or otherwise subjects such other person to physical contact, or
attempts or threatens to do the same, id. § 240.26. Although the jury was not instructed on
resisting arrest, a person is guilty of that offense when he “use[s] physical force to resist an
arrest, whether authorized or unauthorized, which is being effected or attempted by a police
officer or peace officer”, id. § 35.27.
24

officers in the street, those beliefs were sufficiently reasonable to establish “arguable” probable
cause, at a minimum, that Plaintiff resisted arrest.16 See Zellner, 494 F.3d at 369 (“[A]n officer’s
‘subjective reason for making the arrest need not be the criminal offense as to which the known
facts provide probable cause,’ . . . an arrest is not unlawful so long as the officer has knowledge
of, or reasonably trustworthy information as to, facts and circumstances sufficient to provide
probable cause to believe that the person arrested has committed any crime.”) (citations omitted)
(emphasis added); see also Mesa, 2013 WL 31002, at *11–12 (where plaintiff made “forcible
contact” with defendant police officer’s body, “inadvertent or not,” and where plaintiff and
defendant had an “altercation over [a] camera and [an] exchange of words,” this was enough to
warrant qualified immunity, as “a reasonable officer could have believed that probable cause
existed to arrest [plaintiff] for at least one of the misdemeanor offenses” of “harassment,
resisting arrest, and disorderly conduct,” even where all three were ultimately dismissed against
plaintiff).
The Second Circuit has made clear that “the tests for probable cause and arguable
probable cause are . . . not congruent.” Zellner, 494 F.3d at 370. Thus, it is possible for a jury to
find that officers did not have probable cause for an arrest, and yet for a court to find after the
fact that an “officer[] of reasonable competence” could have found probable cause in light of the
facts. Id. at 369–70 While it is not clear why the jury concluded that the three officers who
believed they saw Plaintiff throwing punches at other officers did not have probable cause to
arrest him, the Court concludes that those beliefs provide at least arguable probable cause that
entitles Deferrari, Reo, and Heerey to qualified immunity on the false arrest claims.
Only two officers—Reo and Boneta—believed that Plaintiff “shoved” Reo. (Special
Verdict Sheet, at 5–6.) The Court need not reach the question of whether this belief was
reasonable, because the Court finds that there was arguable probable cause to arrest Plaintiff for
punching officers in the street.
16

25

2.

Defendants Found Liable Based on Failure to Intervene and Supervisory Liability

The jury found that Tellado, MacNear, Boneta, and Failla were liable for failure to
intervene to prevent Jackson’s false arrest, and that MacNear was also liable for false arrest as a
supervisory officer. (Verdict Sheet, at 2.)
a)

Defendants’ Theory of Derivative Qualified Immunity for
Non-Intervening Defendants

The Court addresses, as an initial matter, Defendants’ assertion, made without
elaboration, that “a finding of qualified immunity [for the Defendants who personally
participated in the false arrest] would extinguish the liability [as to all other officers] for failure
to intervene and supervisory liability.” (Dkt. 106, at 24.) Although there is no definitive case
law on this issue, the Court rejects what amounts to a theory of derivative qualified immunity for
the non-intervening officers, i.e., that because the officers who arrested Plainitff had arguable
probable cause and are entitled to qualified immunity as to that arrest, the officers and
supervisors who failed to intervene are automatically, or in effect, derivatively, entitled to
qualified immunity as well. The Court instead finds that, under the facts of this case, the grant of
qualified immunity to the three arresting Defendants does not preclude the denial of qualified
immunity as to other Defendants for failure to intervene as to the arrest.
In Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123 (2d Cir. 1997), the Second Circuit held
that “[a] police officer cannot be held liable in damages for failure to intercede unless such
failure permitted fellow officers to violate a suspect’s ‘clearly established statutory or
constitutional rights’ of which a reasonable person would have known[.]” Id. at 129. On its
face, this standard would seem to support Defendants’ argument, in that it suggests that if the
incident in which the officers failed to intervene did not violate a suspect’s “‘clearly established
statutory or constitutional rights’”—which ordinarily would entitle the arresting officers to
26

qualified immunity—the non-intervening officers cannot be held liable for the failure to
intervene. However, the Court finds that the qualifying phrase “of which a reasonable person
would have known” is best read as applying to what the non-intervening officer would have
known, not to what the arresting officer would have known. As a result, an arresting officer
could violate a suspect’s rights (i.e. arrest him without probable cause) while objectively having
arguable probable cause, while a non-intervening officer with additional information available to
him could or should have known there was no arguable probable cause.
The language of Ricciuti itself corroborates this interpretation. See id. at 129 (stating that
“the failure to intercede must be under circumstances making it objectively unreasonable for [the
non-intervening officer] to believe that his fellow officers' conduct did not violate those rights”);
id. (“To obtain summary judgment on qualified immunity grounds in connection with a claim of
failure to intercede to prevent an illegal arrest, a defendant must show that the only result a fair
jury could reach is that reasonably competent police officers, faced with the information
available to the non-intervening officer at the time of the arrest, could disagree about the legality
of the arrest.”) (emphasis added).
Consistent with this analysis, this oft-quoted language from Ricciuti does not appear to
have been applied to the situation presented here, where the jury has found that there was an
arrest without probable cause, but also found facts that support a grant of qualified immunity to
the arresting officers, as well as facts that warrant denying qualified immunity to the nonintervening officers.17 The Court does not construe Ricciuti as precluding the denial of qualified

17

Instead, this principle generally has been applied to preclude failure to intervene
liability when no constitutional violation was found, as opposed to when a constitutional
violation is found, but qualified immunity is granted to those who personally committed the
violation. See Lewis v. Fischer, 08-CV-3027, 2009 WL 689803 (E.D.N.Y. 2009) (stating, in
discussing Ricciuti, that “[w]hen no constitutional violation has taken place, bystanding officers
27

immunity to the non-intervening officers under these unusual circumstances. See Harris, 252
F.3d at 598 (courts faced “with seemingly inconsistent verdicts” “must adopt a view of the case,
if there is one, that resolves any seeming inconsistency”); Gallick, 372 U.S. at 119 (“Where there
is a view of the case that makes the jury’s answers to special interrogatories consistent, they must
be resolved that way.”). And neither Ricciuti nor its progeny expressly provides that officers who
fail to intervene in an unlawful arrest are entitled to qualified immunity simply because the
arresting officers are entitled to qualified immunity for the arrest itself. Thus, the Court finds
that the grant of qualified immunity to the arresting officers does not preclude a denial of
qualified immunity to the non-intervening officers.
As this case illustrates, the different treatment of the arresting and non-intervening
officers is justified by the differences in what the two sets of officers reasonably believed about
the existence or non-existence of probable cause for the arrest.

Indeed, the jury’s Special

Verdict findings in this case bear out this critical distinction. Here, the jury found that the three
officers who were personally involved in the arrest believed, even if mistakenly, that Plaintiff
had committed a crime by assaulting Czulada or other officers in the street; whereas it found that
some of the non-intervening Defendants did not believe that Plaintiff had committed a crime.
(Special Verdict Sheet, at 1, 4, 6, 7) Given the difference in what the two sets of officers—
arresting versus non-intervening—knew or believed about the circumstances giving rise to the

cannot be held liable.” Id. at *6, n.3 (emphasis added); Holland v. City of New York, 14-Civ.5517, 2016 WL 3636249, at *12 (S.D.N.Y. June 24, 2016) (stating that, “‘If the Court
determines that the officer's conduct did not violate a constitutional right, however, the analysis
ends.” (quotation omitted); Usavage v. Port Auth. of New York & New Jersey, 932 F. Supp. 2d
575, 599 (S.D.N.Y. 2013) (stating that failure to intervene claims are “contingent upon the
disposition of the primary claims underlying the failure to intervene claim,” explaining that when
“the record does not disclose an underlying excessive force violation, and does not suggest that
an officer who observed the incident could have been aware of the use of excessive force,
summary judgment on a duty to intercede claim is appropriate”).
28

arrest, it is entirely consistent with Riciutti to grant qualified immunity to the arresting officers,
who believed their actions were lawful, while denying qualified immunity to the non-intervening
officers who did not believe the arrest was lawful, yet failed to intervene. See Robinson v. Via,
821 F.2d 913, 921 (2d Cir. 1987) (noting that “it has long been clearly established that an arrest
without probable cause is a constitutional violation,” even though qualified immunity might be
appropriate where there is arguable probable cause).18 Therefore, the Court finds that Ricciuti
permits a situation like this one, where the observing officer would not reasonably believe an
arrest is lawful, despite the fact that the arresting officers are entitled to qualified immunity based
on their belief that there was a proper basis for the arrest.19
b)

Defendants MacNear and Boneta Are Entitled to Qualified
Immunity as to the False Arrest

Notwithstanding the Court’s rejection of Defendants’ theory of derivative qualified
immunity for all of the non-intervening officers, the Court finds that MacNear and Boneta are
entitled to qualified immunity for their false arrest verdicts. The jury’s responses to the special
interrogatories on qualified immunity indicate that MacNear and Boneta reasonably, even if
mistakenly, believed they saw Plaintiff committing crimes, and/or relied upon the allegations of

18

Curley v. Village of Suffern, 268 F.3d 65 (2d Cir. 2001) is not to the contrary. There,
the Circuit held that when a jury returned a verdict in favor of the officers accused of personally
using excessive force, other officers could not be held liable for failure to intervene. Id. at 72.
Curley explicitly distinguished a situation where the officer who allegedly engaged in the
excessive force is found not liable because of qualified immunity, at least in the context of
municipal liability. Id. at 71.
Again, the Court recognizes the seeming inconsistency in the jury’s verdict and the
Special Verdict Sheet findings, but believes that applying Ricciuti in this manner appropriately
reconciles this conflict. See Harris, 252 F.3d at 598 (courts faced “with seemingly inconsistent
verdicts” “must adopt a view of the case, if there is one, that resolves any seeming
inconsistency”); Gallick, 372 U.S. at 119 (“Where there is a view of the case that makes the
jury’s answers to special interrogatories consistent, they must be resolved that way.”)
19

29

fellow police officers in concluding that the arresting officers’ conduct was lawful. See Panetta
v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006) (“‘When making a probable cause determination,
police officers are ‘entitled to rely on the allegations of fellow police officers.’”) (quoting
Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir. 2000)).
The jury found that MacNear believed, even if mistakenly, that Jackson assaulted
Czulada. (Special Verdict Sheet, at 2.) As noted, the jury found that Czulada, Gherardi, Dunn,
and Kurian also believed that Jackson assaulted Czulada, leading the Court to conclude that this
belief was reasonable.

MacNear’s reasonable belief that he saw Plaintiff assault Czulada

provides arguable probable cause to arrest for assault in the third degree, and thus entitles him to
qualified immunity for his failure to intervene. (Id.) For the same reason, MacNear is entitled to
qualified immunity with respect to the jury’s finding of supervisory liability for the arrest as
well.
Boneta is similarly entitled to qualified immunity for his false arrest verdict. As to
Boneta, the jury found that he believed, even if mistakenly, that Plaintiff had shoved Reo, and
was throwing punches at police officers in the street. These reasonable beliefs provide arguable
probable cause for Plaintiff’s arrest and, in turn, provide qualified immunity to Boneta for his
failure to intervene. (Id.)
c)

Defendants Failla and Tellado

With respect to Failla and Tellado, however, the Court denies qualified immunity on the
false arrest claims.
(1)

Failla

As to Failla, the jury’s verdict reflects a finding that Failla failed to intervene to prevent
Plaintiff’s false arrest, despite having reason to know that it was not supported by probable

30

cause, and despite having a reasonable opportunity to intervene. On the Special Verdict Sheet,
the jury did not find that Failla believed that Plaintiff had committed any of the specified illegal
acts, except resisting arrest. However, the arrest that Plaintiff was resisting was an arrest that the
jury found Failla believed or had reason to believe was unlawful.20 The Second Circuit, in Curry
v. City of Syracuse, 316 F.3d 324 (2d Cir. 2003), made clear that under New York law, there
must be probable cause to arrest someone for an independent crime apart from “resisting arrest”
in order to defeat a false arrest verdict. Id. at 336. The Curry court noted that under New York
law, “‘[a] person is guilty of resisting arrest when he intentionally prevents or attempts to prevent
a police officer or peace officer from effecting an authorized arrest of himself or another
person.’” Id. at 336 (quoting N.Y. Penal Law § 205.30). It is “well established in New York
that ‘probable cause to arrest is a prerequisite for making an authorized arrest,’ and if there is no
probable cause to arrest a person, that person ‘cannot be guilty of resisting arrest.’” Id. (quoting
People v. Mohamadou, 698 N.Y.S.2d 445, 447–48 (N.Y. Crim. Ct. 1999)); see also People v.
Stevenson, 335 N.Y.S. 2d 52, 56 (1972) (explaining that “the crime of resisting arrest does not
occur if the arrest is illegal or unlawful”). Based on the jury’s answers on the Special Verdict
Sheet, Failla did not have knowledge of probable cause to arrest Plaintiff for the independent
crimes of assault in the third degree or aggravated harassment in the second degree. See Special
Verdict Sheet, at 6 (showing that the jury did not believe that Failla believed that Plaintiff had
assaulted Czulada, shoved Reo, or thrown punches at officers in the street).

20

The Court notes, however, that its ruling on the qualified immunity issue, which is
based on the jury’s explicit Special Verdict Sheet findings, does not resolve any challenge
Defendants might raise in their Rule 50/59 motion as to whether the evidence was sufficient to
support the jury’s failure to intervene verdict against Failla. Indeed, based on the evidence
showing that Failla arrived at the scene late, just in time to observe Plaintiff being arrested, there
is reason to question whether he knew or thought that there was no probable cause for the arrest.
31

The Court also considers whether the jury’s finding that Failla believed Plaintiff was
“resisting arrest” could provide “arguable probable cause” for an arrest for disorderly conduct.
Disorderly conduct is when, inter alia, someone engages in fighting or in violent, tumultuous or
threatening behavior with intent to cause public inconvenience, annoyance, or alarm, or
recklessly creates a risk thereof, N.Y. Penal Law § 240.20. In light of the fact that Defendants
did not request that the jury be instructed on the elements of resisting arrest, the jury’s finding
that Failla believed Plaintiff was “resisting arrest” cannot be treated as a legal conclusion;
instead, it could mean a range of behavior that literally means resisting being arrested. Plaintiff
testified that while he was in the street, officers were sitting on his back holding him down,
which made it impossible for him to pull his arm out from under him despite orders to do so.
(1/27/16 Tr. 60–61, Jackson.) (testifying that an officer was “poking me in the side with the ASP
and kicking me telling me, Give me your arm, stop resisting me, give me your arm . . . I said I
can’t. It’s too much weight on my back”). The jury’s finding that Failla believed Plaintiff was
resisting arrest could have been referring to Plaintiff’s inability to pull his arm out from under
him, which officers could have interpreted as a refusal to do so. The Court therefore does not
find that this conduct supplies arguable probable cause to arrest Plaintiff for disorderly conduct,
which consists of “engaging in fighting or in violent, tumultuous, or threatening behavior”. N.Y.
Penal Law § 240.20.21
(2)

Tellado

The jury also found Tellado liable for failing to intervene in Plaintiff’s false arrest. This
means that the jury found that Tellado knew or had reason to know that the arrest was without
This conclusion is reinforced by the jury’s finding that Failla did not believe that
Plaintiff was “throwing punches at police officers while out in the street.” (Special Verdict
Sheet, at 6.) This would suggest that the “resisting arrest” that Failla saw was non-violent.
21

32

probable cause. (Dkt. 97 (“Jury Instructions”) at 16.) The jury also found, in the Special Verdict
Sheet, that Tellado did not believe that Plaintiff had assaulted Czulada, shoved Reo, thrown
punches at officers in the street, or resisted arrest. (Special Verdict Sheet, at 1.) Based on these
findings by the jury, the Court is compelled to deny Tellado qualified immunity.22
(3)

Collective Knowledge Doctrine Does Not Benefit Failla
or Tellado

The collective knowledge doctrine does not help either Failla or Tellado, because as
noted, collective knowledge requires that the relevant knowledge actually have been
communicated. Here, the jury’s finding that Failla and Tellado did not believe that Plaintiff had
committed a crime necessarily means that the arresting officers’ knowledge about Plaintiff’s
arguable crimes was not communicated to Failla and Tellado, or if it was, they did not believe it.
In sum, with respect to the jury’s false arrest verdicts, qualified immunity is granted as to
Defendants Deferrari, Heerey, Reo, Boneta, and MacNear, and denied as to Defendants Failla
and Tellado.
III.

EXCESSIVE FORCE
Defendants argue that they are entitled to qualified immunity as to the jury’s excessive

force verdicts, because Defendants used reasonable force under the circumstances.

22

As with Failla, this ruling does not resolve the question of whether the evidence was
sufficient to support the jury’s failure to intervene verdict as to Tellado. Indeed, the Court notes
that the evidence supporting Tellado’s liability is thin—Plaintiff did not testify to seeing Tellado
in the house, stating that he first noticed Tellado standing outside the house after Plaintiff was
being searched, which occurred after Plaintiff had been handcuffed and pepper-sprayed.
(1/27/16 Tr. 62–65.), Plaintiff further testified that Tellado looked at Plaintiff’s ID, and then
ordered that he be released. (Id. at 66–67). Tellado’s testimony matches with Plaintiff’s—he
testified that he entered the house after Plaintiff left, and that he first saw Plaintiff after he was
restrained. (2/1/16 Tr. 178, 183–84, Tellado.)
33

A. Legal Standards
1.

Excessive Force Standard

Fourth Amendment jurisprudence contemplates that law enforcement has a “right to use
some degree of physical coercion or threat thereof” as part and parcel of the “right to make an
arrest or investigatory stop.” Rogoz v. City of Hartford, 796 F.3d 236, 246 (2d Cir. 2015). This
right is limited, however, by the requirement that the use of such force be objectively reasonable
“in light of the facts and circumstances confronting” the law enforcement officers effecting the
arrest, under penalty of violating the Fourth Amendment. Id. “Whether the force used to effect
an arrest is ‘reasonable’ or ‘excessive’ turns on ‘a careful balancing of the nature and quality of
the intrusion on the individual’s Fourth Amendment interests against the countervailing
government interests at stake.’” Figueroa v. Mazza, 825 F.3d 89, 105 (2d Cir. 2016) (quoting
Graham v. Connor, 490 U.S. 386, 396 (1989) (internal quotation marks omitted)).

This

balancing contemplates a number of factors, including “the need for the application of force, the
relationship between the need and the amount of force that was used, the extent of injury
inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or
maliciously and sadistically for the very purpose of causing harm.” Id. (citing Johnson v.
Newburgh Enlarged Sch. Dist., 239 F.3d 246, 251–52 (2d Cir. 2001)).
Just as in the false arrest context, “[l]iability may attach where an officer fails to
intervene, but observes or has reason to know . . . that excessive force is being used,” if the
officer “had a realistic opportunity to intervene to prevent the violation from happening.”
Sanabria, 2016 WL 4371750, at *5. And as with false arrest, a supervisor may be liable for
excessive force if he “authorizes, orders, or helps others” to carry out the excessive force.
Terebesi, 764 F.3d at 234.
2.

Excessive Force and Qualified Immunity
34

Even if a defendant is found liable for using excessive force, that defendant may
nonetheless be entitled to qualified immunity if it was not objectively unreasonable for him or
her to believe that his use of such force was nevertheless lawful. Thus, while both the excessive
force inquiry and the qualified immunity inquiry ask whether the officer’s actions were
“objectively reasonable,” the qualified immunity inquiry goes on to ask whether any
constitutional violation was clearly established. Saucier v. Katz, 533 U.S. 194, 205 (2001)
(“stating that “the qualified immunity inquiry . . . has a further dimension” and acknowledges
that “reasonable mistakes can be made as to the legal constraints on particular police conduct”),
receded from by Pearson v. Callahan, 555 U.S. 223 (2009), on other grounds.
Put differently, if an officer makes reasonable mistakes of fact in applying force, liability
itself will be defeated. See id. at 205 (explaining that objective mistakes of fact, such as a
reasonable belief that a suspect was likely to fight back, can justify “more force than in fact was
needed” under Graham). However, if a jury returns a verdict finding excessive force, having
been properly instructed on the law, the jury is essentially saying that the officer has not made a
reasonable mistake of fact, and that the use of force was not objectively reasonable. (Jury
Instructions, at 15.) Nonetheless, in that event, a court may still grant qualified immunity if an
officer has made a reasonable mistake of law; i.e., if the constitutional violation he has
committed was not a “clearly established” violation. See id. “It is sometimes difficult for an
officer to determine how the relevant legal doctrine, here excessive force, will apply to the
factual situation the officer confronts,” [and] “[a]n officer might correctly perceive all of the
relevant facts but have a mistaken understanding as to whether a particular amount of force is
legal in those circumstances.” Id.

“If the officer’s mistake as to what the law requires is

reasonable, . . . the officer is entitled to the immunity defense.” Id. See also Brown v. City of

35

New York, 13-CV-1018, 2016 WL 1611502, at *4 (S.D.N.Y. April 20, 2016) (“Qualified
immunity attaches if ‘officers of reasonable competence could disagree’ on the legality of the
defendant’s actions.”) (quoting Lennon, 66 F.3d at 420)).
“Although it is not the case that an official action is ‘protected by qualified immunity
unless the very action in question has previously been held unlawful . . . it is to say that in the
light of pre-existing law the unlawfulness must be apparent.’” Brown, 2016 WL 1611502, at *4
(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Additionally, there is a narrow set
of cases in which a constitutional violation is so “obvious,” that the Graham standard itself gives
fair warning that a violation is clearly established. See Brosseau v. Haugen, 543 U.S. 194, 599
(2004) (“Of course, in an obvious case, these standards [articulated in Graham and in Tennessee
v. Garner, 471 U.S. 1 (1985)] can ‘clearly establish’ the answer, even without a body of relevant
case law.”); Hope v. Pelzer, 536 U.S. 730, 741 (2002) (finding in a case where an Eighth
Amendment violation—using a hitching post—was “obvious” that “general statements of the
law are not inherently incapable of giving fair and clear warning,” and explaining that “a general
constitutional rule already identified in the decisional law may apply with obvious clarity to the
specific conduct in question, even though ‘the very action in question has [not] previously been
held unlawful,’”) (citing Anderson, 483 U.S. at 640)). See also Johnson v. Newburgh Enlarged
Sch. Dist., 239 F.3d 246, 251 (2d Cir. 2001) (explaining that “it stands to reason that in many
instances the absence of a reported case with similar facts demonstrates nothing more than
widespread compliance with the well-recognized applications of the right at issue on the part of
government actors”) (quotation omitted)).

36

B. No Defendant is Entitled to Qualified Immunity on the Excessive Force Claim
The Court takes as its starting point the jury’s findings that Defendants Czulada, Kurian,
Reo, and Failla personally subjected Plaintiff to objectively unreasonable force under the
circumstances, that Defendants Tellado, MacNear, Gherardi, Dunn, Deferrari, Braumann,
Boneta, and Heerey failed to intervene to prevent Plaintiff from being subjected to excessive
force, and that Defendant MacNear additionally authorized, ordered, or helped the Defendants
who used excessive force against Plaintiff.

As discussed above, when a jury finds that a

defendant is liable for excessive force, thus having determined that the defendant used
objectively unreasonable force, the qualified immunity inquiry focuses on the question of
whether the constitutional violation was “clearly established.”23 See Saucier, 533 U.S. at 205.
1.

Defendants Who Personally Subjected Plaintiff to Excessive Force
a)

Defendant Czulada

Defendant Czulada is not entitled to qualified immunity regarding the jury’s finding that
he personally used excessive, or objectively unreasonable force, against Plaintiff. Construing the
evidence in the light most favorable to Plaintiff, yet still accounting for the jury’s finding that
Czulada reasonably believed that Plaintiff assaulted him,24 the Court finds that the jury found

23

The Court also notes that the Special Verdict Sheet questions were designed to assist
the Court in its qualified immunity analysis for the false arrest claim, and do not provide
definitive information regarding the excessive force claim. As the Court will discuss infra, the
jury’s Special Verdict Sheet answers are insufficient to undermine the jury’s verdict finding
Defendants liable for excessive force, because the Special Verdict Sheet does not provide any
information about the chronology of events. The jury’s finding that a defendant believed that
Plaintiff assaulted Czulada, for example, does not provide any information about whether this
assault occurred before or after any excessive force was used by Czulada, or whether the assault
was of a magnitude that merited the actions Czulada took thereafter.
Although the Special Verdict Sheet did not ask if Czulada’s belief was reasonable, in
light of the fact that the jury found that four other officers also believed it, the Court finds that
this belief was reasonable.
24

37

that the following sequence of events had occurred: Czulada told Plaintiff to “back the fuck up,”
and “push[ed] [him] back with the ASP”; Plaintiff “lost [his] balance” and then “stood back up
and . . . asked [Czulada], What are you doing? I just told you this is my house. I’m a cop too,”;
then Czulada “punched [Plaintiff] in the face.” (1/27/16 Tr. 40–42, Jackson.) Then, Plaintiff
assaulted him. (2/1/16 Tr. 100–05, Czulada.) Czulada himself testified that Plaintiff “pushe[d]”
him, then he punched Plaintiff in the face, and then, Plaintiff punched him in the head multiple
times, and then continued to punch him after he was on the floor. (2/1/16 Tr. 96–97, 100–05,
Czulada.) Therefore, although it is possible that the jury found that Plaintiff “pushed” Czulada
and that this was an “assault,” it is far more likely that the “assault” they found referred to
Plaintiff punching Czulada multiple times after Czulada punched Plaintiff in the face.
It is clearly established that an officer punching someone in the face unprovoked violates
that person’s rights. See, e.g., O’Hara v. City of New York, 570 Fed. App’x 21, 23–24 (2d Cir.
2014) (summary order) (concluding that, where officers were arresting plaintiff for a “relatively
minor matter,” “no reasonable officer . . . could have thought that the law authorized him
repeatedly to punch an unarmed, non-menacing 17-year-old in effecting an arrest”); see also
Davis v. Clifford, 825 F.3d 1131, 1137 (10th Cir. 2016) (“[I]t is . . . clearly established law that
the use of disproportionate force to arrest an individual who has not committed a serious crime
and who poses no threat to herself or others constitutes excessive force.”); Hung v. Watford,
2002 WL 31689328, at *6 (E.D. Pa. 2002) (finding that “an unprovoked grab, punch, kick and
handcuffing of an individual who is not resisting arrest or even being arrested, not fleeing the
scene of a crime and not engaging in any threatening activity to an officer or others, was clearly
established as a violation of a constitutional right at the time of the incident”). Accepting
Plaintiff’s testimony about the encounter, he had not committed any crime, not even a

38

misdemeanor, at the time Czulada punched him, and was not posing any type of threat. Brown v.
City of Golden Valley, 574 F.3d 491, 499 (8th Cir. 2009) (explaining that “it is clearly
established that force is least justified against nonviolent misdemeanants who do not flee or
actively resist arrest and pose little or no threat to the security of the officers or the public.”).
Finally, the Court notes that, although it has no need to rely on the Pelzer25 rule here, it is
“obvious” that punching someone in the face who poses no threat is “excessive” force, because
in such a situation no force is necessary or justified.
The Court further finds that no reasonable officer would have found that Plaintiff’s action
in getting up from the ground after Czulada pushed him, unprovoked, constituted a threat that
justified Czulada punching Plaintiff in the face. Plaintiff did not testify that Czulada told him to
stay down or any words to that effect, that Plaintiff appeared angry or menacing when he stood
up and spoke to Czulada, or that Plaintiff had not done anything at that point to justify a belief
that he had committed a crime or posed any danger to anyone. Moreover, Plaintiff’s testimony
that he told Czulada that he was an officer further undermines any justification for Czulada’s use
of force against Plaintiff at that moment. Accordingly, the Court finds that Czulada is not
entitled to qualified immunity as to the excessive force verdict.
b)

Defendant Kurian

Defendant Kurian, whom the jury found also personally used excessive force against
Plaintiff, is not entitled to qualified immunity either. The jury could have believed Plaintiff’s
testimony that Kurian lifted Plaintiff up with an ASP baton around his neck inside the house, and
“choked” him. (1/27/16 Tr. 46, 105, Jackson.) They also could have believed Plaintiff’s
As noted, in Pelzer, 536 U.S. 730, the Supreme Court stated that “a general
constitutional rule already identified in the decisional law may apply with obvious clarity to the
specific conduct in question, even though the very action in question has [not] previously been
held unlawful.” Id. at 741 (internal quotation marks omitted).
25

39

testimony that at the time he was placed in the chokehold, Plaintiff was simply trying to help
Czulada up, even as Czulada was taking swings at him. (Id. at 45.) Kurian’s testimony places
him in the middle of the altercation between Czulada and Plaintiff, although he testified that he
merely “bear hug[ged]” Plaintiff’s arm.

(2/2/16 Tr. 54, Kurian.)

The jury could have

disbelieved Kurian’s testimony about the “bear hug,” but found that his testimony otherwise
corroborated Plaintiff’s statement that it was Kurian who choked him.
Accepting the facts in the light most favorable to Plaintiff and assuming that Kurian
placed Plaintiff in a chokehold before Plaintiff punched Czulada, the Court concludes that the
chokehold violated clearly established law.26 It is clearly established that a police officer cannot
use a chokehold on someone who does not pose a threat of any kind. United States v. Livoti, 196
F.3d 322, 327 (2d Cir. 1999) (upholding criminal conviction for excessive force when officer put
man in a chokehold which lasted for one minute and rendered him unconscious, when the
evidence showed that the New York City Police Department (“NYPD”) prohibited chokeholds
under any circumstances); see also Coley v. Lucas Cnty., Ohio, 799 F.3d 530, 540 (6th Cir.
2015) (finding that an officer violated a plaintiff’s constitutional rights when he choked him after
plaintiff had been placed on the bed, handcuffed to it, and was surrounded by multiple officers,
and stating that “[t]he use of a chokehold on an unresisting—and even an initially resistant—
detainee violates the Fourteenth Amendment”) (citing Valencia v. Wiggins, 981 F.2d 1440, 1447
(5th Cir. 1993)); Hamilton v. City of Jackson, 261 Fed. App’x 182, 186–87 (11th Cir. 2008)
(denying qualified immunity to officer who pressed plaintiff up against a door and grabbed his

26

It is not clear whether the jury found that Kurian personally used excessive force
against Plaintiff before or after Plaintiff assaulted Czulada. At this stage, the Court adopts the
view of the case “that makes the jury’s answers to the special interrogatories consistent.”
Gallick, 372 U.S. at 119.
40

throat, squeezing for 30-40 seconds, given that plaintiff had arrived at the police department of
his own volition, and had turned to leave the room when the officer grabbed him); Davis v. City
of San Jose, 69 F. Supp. 3d 1001, 1006–07 (N.D. Ca. 2014) (finding that “it was clearly
established that police officers should not . . . place a suspect in a chokehold so as to render him
unconscious when he does not resist being arrested for obstructing police duties”); Magrum v.
Meinke, 332 F. Supp. 2d 1071, 1082 (N.D. Ohio 2004) (stating that an officer who “flipped
[plaintiff] to the ground and choked him two times, the second time while [plaintiff] was not
resisting . . . violat[ed] . . . clearly established law”); cf. Drummond ex rel. Drummond v. City of
Anaheim, 343 F.3d 1052, 1062 (9th Cir. 2003) (finding that it “need[ed] no federal case directly
on point to establish that kneeling on the back and neck of a compliant detainee, and pressing the
weight of two officers’ bodies on him even after he complained that he was choking and in need
of air violates clearly established law, and that reasonable officers would have been aware that
such was the case”).27

To the extent the sequence of events is relevant to Defendants’ claims of qualified
immunity, it was incumbent on them to request that the jury resolve those factual issues in the
Special Verdict Sheet. See Zellner, 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 . . . . If the defendant does not make such a request, he is not entitled to have the court,
in lieu of the jury, make the needed factual finding.”) However, even if the jury had found that
Plaintiff assaulted Czulada before Kurian placed Plaintiff in a chokehold, Kurian still might not
be entitled to qualified immunity. It is clearly established that even if someone posed a threat at
the time force was initiated on them, an officer cannot continue to apply deadly or serious force
when the threat has subsided. See Alicea v. Thomas, 815 F.3d 283, 288 (7th Cir. 2016) (stating
that use of force “is only reasonable when it is proportional to the threat posed. If an officer's
threat perception changes, so too should her force calculus.”); Lamont v. New Jersey, 637 F.3d
177, 184 (3d Cir. 2011) (“Even where an officer is initially justified in using force, he may not
continue to use such force after it has become evident that the threat justifying the force has
vanished.”); Lytle v. Bexar County, Tex., 560 F.3d 404, 413 (5th Cir. 2009) (“[A]n exercise of
force that is reasonable at one moment can become unreasonable in the next if the justification
for the use of force has ceased”); Keeney v. City of New London, 196 F. Supp. 2d 190, 200 (D.
Ct. 2002) (explaining that “once an individual is restrained by handcuffs and unable to defend
27

41

c)

Defendant Reo

Defendant Reo is also not entitled to qualified immunity for personally using excessive
force against Plaintiff. The jury could have found that he struck Plaintiff in the back of the head
while Plaintiff was standing in the doorway of the house protesting the officers’ treatment of
Bonaparte. (1/27/16 Tr. 54, Jackson) (“I was like, wait a minute, guys . . .”, and then he was
struck in the back of the head).

Although Plaintiff he did not see who struck him, (id. at 55),

Reo placed himself28 in the doorway of the house at the time Bonaparte was brought outside, and
also testified about hearing Plaintiff’s protest of the officers’ treatment of Bonaparte.
Therefore, it is reasonable to infer that the jury’s determination that Reo personally used
excessive force against Plaintiff was based on a finding that Reo was the officer who hit Plaintiff
in the back of the head. A jury is permitted to infer a defendant’s involvement in use of
himself, there is little legitimate government interest in continued use of force”). Here, Plaintiff
testified that while Kurian held the baton to his neck, Kurian “was telling [him] to relax, and
[Plaintiff] was telling him, I am relaxed. I can’t breathe. Then [Plaintiff] noticed after [he] said
that, [he] felt like [the baton] was being pulled tighter and [he] heard the word ‘relax’ again.”
(1/27/16 Tr. 47, Jackson.). This testimony suggests that even if Kurian was initially justified in
using a chokehold on Plaintiff, Kurian continued to apply it after the justification disappeared,
thereby violating clearly established law. In addition, Plaintiff testified that the NYPD provided
training that officers should not do “anything related to the neck or choking in the police
department” because “[i]t can run the risk of asphyxiation. You could kill somebody.” (1/27/16
Tr. 47, Jackson.) MacNear also testified that the NYPD did not allow chokeholds. (1/28/16 Tr.
12, MacNear). It is therefore reasonable to infer that Kurian knew that he should not use a
chokehold under any circumstances. See Weigel v. Broad, 544 F.3d 1143, 1155 (10th Cir. 2008)
(“[T]he reasonableness of an officer's actions must be assessed in light of the officer's training.”).
However, the absence of the necessary factual findings precludes the Court’s consideration of
this alternate scenario.
28

Reo testified that while he was guarding the door of the house to make sure nobody
else entered, Plaintiff approached and tried to get into the house. (1/29/16 Tr. 182, Reo.) Then
he heard Plaintiff yelling, “You all can’t fucking do that, you all can’t do that”, while looking at
two officers taking a black, shirtless man out of the house. Id. Reo testified that Plaintiff tried to
push past Reo again, and finally “g[ave] [him] a two-handed shove to [his] chest”, which made
Reo stumble back. Id. at 182–83. Bonaparte’s testimony that he was not wearing a shirt on the
night of the incident tended to corroborate his identity as the man being removed by the two
officers. (1/25/16 Tr. 24, Bonaparte).
42

excessive force based on circumstantial evidence. See Medina v. Donaldson, 10-CV-5922, 2014
WL 1010951, at *7 (E.D.N.Y. March 14, 2014) (“Absent direct evidence, a jury may still find
for the plaintiff on a theory of direct participation if ‘there is sufficient circumstantial evidence
from which the trier of fact could make reasonable conclusions concerning who, if anyone,
struck [the plaintiff].’”) (quoting Lasher v. City of Schenectady, 02-CV-1395, 2004 WL
1732006, at *6–7 (N.D.N.Y. Aug. 3, 2004)); Campbell v. City of New York, 06-CV-5743, 2010
WL 2720589, at *9 (S.D.N.Y. June 30, 2010) (finding plaintiff’s testimony that defendantdetective was with the officer who transported plaintiff to the place where plaintiff was
interrogated and assaulted was sufficient to survive summary judgment and allow jury to
determine that the detective failed to intercede or was personally involved in the alleged
constitutional violation); Vesterhalt v. City of New York, 667 F. Supp. 2d 292, 298 (S.D.N.Y.
2009) (finding that, although plaintiff could not identify who threw her to the floor and held her
there with his boot, defendants’ testimony showed that “all of the individual defendants were
present [when plaintiff was thrown to the floor,]….and [t]herefore it is possible that all of the
officers…failed to intervene on her behalf”).
The jury also found in the Special Verdict Sheet that Reo believed, even if mistakenly,
that Plaintiff had shoved him. The jury could either have found that Plaintiff shoved Reo, and in
response Reo used excessive force by hitting Plaintiff on the back of the head, or that Reo hit
Plaintiff in the back of the head and then Plaintiff shoved Reo. As with Czulada, the answers to
the Special Verdict Sheet provide no information about the chronology of the events, and
therefore do not provide definitive answers regarding the excessive force claims.
Because the Court construes the facts in the light most favorable to Plaintiff, it considers
only whether Reo’s striking Plaintiff on the back of the head in response to Plaintiff protesting

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the officers’ treatment of Bonaparte violates clearly established law, and finds that it does. It is
clearly established that an officer cannot strike someone on the back of the head when that
person poses no physical threat or resistance. Belanger v. City of Hartford, 578 F. Supp. 2d 360,
362–63 (D. Conn. 2008) (finding that “[a] reasonable police officer should know that swinging a
baton at an individual’s face while [he is] facing away from the officer without prior warning
would constitute a violation of that individual’s right to be free from excessive force”); see also
Davis, 825 F.3d at 1137 (“[I]t is . . . clearly established law that the use of disproportionate force
to arrest an individual who has not committed a serious crime and who poses no threat to herself
or others constitutes excessive force.”); Hadley v. Gutierrez, 526 F.3d 1324, 1330 (11th Cir.
2008) (“Our cases hold that gratuitous use of force when a criminal suspect is not resisting arrest
constitutes excessive force.”); Hung, 2002 WL 31689328, at *6 (finding that “an unprovoked
grab, punch, kick and handcuffing of an individual who is not resisting arrest or even being
arrested, not fleeing the scene of a crime and not engaging in any threatening activity to an
officer or others, was clearly established as a violation of a constitutional right at the time of the
incident”).
The fact that Plaintiff was verbally objecting to other officers’ treatment of Bonaparte
does not change the Court’s conclusion, as it is clearly established that verbal objections to
police actions do not warrant use of physical force. See Lustig v. Mondeau, 211 Fed. App’x 364,
371–72 (6th Cir. 2006) (finding that passive resistance and yelling while detained did not justify
arm twisting and jerking that caused injury, and thus amounted to a clearly established
constitutional violation); Meredith v. Erath, 342 F.3d 1057, 1061 (9th Cir. 2003) (finding a
clearly established violation when an agent grabbed a woman by her arms, forcibly threw her to
the ground, and, twisting her arms, handcuffed her, after she “loudly asked several times to see a

44

search warrant”); Aldrich v. City of Columbus, 2016 WL 6084570 (S.D. Oh. 2016) (stating that
“[a] simple refusal by an unthreatening suspect to comply with an officer’s commands does not
warrant the use of significant force”); Aubert v. Elijah, 2009 WL 1516438 (E.D. Ca. 2009)
(finding that plaintiff stated a claim of excessive force under the Eighth Amendment when, after
Plaintiff verbally objected to corrections officers’ insults, one officer ordered another one to “just
kick [Plaintiff’s] ass and do what you want with him so I can kick him out of my building with
his smart ass mouth,” and another officer, after Plaintiff protested further, began to choke him);
Ostroski v. Town of Southold, 443 F. Supp. 2d 325, 342 (E.D.N.Y. 2006) (finding that, assuming
that “an officer struck plaintiff first, following her protestations regarding [the officers’ actions],”
the court could not hold that defendant officers’ conduct was objectively reasonable use of force
as a matter of law); Thomas v. Frederick, 766 F. Supp. 540, 554 (W.D. La. 1991) (finding a
clearly established excessive force violation when an officer threw a woman forcefully against
his car after she verbally protested her husband’s arrest and tried to show the arresting officer
documents); see also Piper v. Elmira, 12 F. Supp. 3d 577, 595 (W.D.N.Y. 2014) (stating, in the
context of a Fourteenth Amendment claim, that an officer who threw a woman to the floor when
she protested him entering a house was not entitled to qualified immunity because “a jury could
conceivably find that no force was appropriate” under the circumstances); Webster v. City of
New York, 333 F. Supp. 2d 184, 201 (S.D.N.Y. 2004) (finding that plaintiff’s comments
criticizing police officers’ actions against another person were “protected speech” and denying
defendants’ summary judgment on plaintiff’s first amendment retaliation claim). See generally
City of Houston, Tex. v. Hill, 482 U.S. 451, 471–72 (1987) (discussing, in the context of
invalidating an ordinance that made it unlawful to interrupt a police officer, the “constitutional
requirement that, in the face of verbal challenges to police action, officers and municipalities

45

must respond with restraint” and stating that “a certain amount of expressive disorder not only is
inevitable in a society committed to individual freedom, but must itself be protected if that
freedom would survive”)29
d)

Defendant Failla

Defendant Failla is also not entitled to qualified immunity.

The jury found that

Defendant Failla personally subjected Plaintiff to excessive force, presumably based on Failla’s
own testimony, in which he admitted to pepper-spraying Plaintiff, as well as Plaintiff’s testimony
that he was pepper-sprayed after being handcuffed. (1/29/16 Tr. 161, Failla) (stating that, rather
than helping to interact with or restrain Plaintiff when he was resisting arrest, “I thought it better
to spray him in the face with pepper spray”); (1/27/16 Tr. 62, Jackson) (stating that after he was
handcuffed, he said “Guys, this was unnecessary . . . I’m a fellow cop, too” and “then they
pepper sprayed me”).) Plaintiff also testified that he willingly allowed himself to be handcuffed,
and was not resisting the officers at that point. (1/27/16 Tr. 62:1–5, Jackson) (stating that he
“stuck [his] arm out” and “let them put the cuffs [on] because “I figured it would be over and we
can straighten this out”). The evidence also shows that no officer, including Failla, attempted to
wipe away the pepper spray from Plaintiff’s eyes or face. Construing the facts in the light most
favorable to Plaintiff, the Court assumes that the jury found that Failla gratuitously pepper
sprayed Plaintiff after Plaintiff had allowed himself to be handcuffed, and in response to
Plaintiff’s comment about the arrest being unnecessary. Even though the jury found on the
Special Verdict Sheet that Failla believed that Plaintiff was resisting arrest, the jury could have

29

The Court once again finds that, although it is not necessary to rely on Pelzer here, it is
obvious that hitting someone on the back of the head for verbally objecting to a police officer’s
conduct is a clearly established violation of the right to be free from excessive force. Pelzer, 536
U.S. at 741.
46

found that Failla observed, or thought he observed, Plaintiff resisting arrest before he was
handcuffed, and before he pepper sprayed him.30
It is clearly established that the use of pepper spray against a restrained and cooperative
person constitutes excessive force. See Tracy v. Freshwater, 623 F.3d 90, 99 n.5 (2d Cir. 2010)
(stating that “we presume that no reasonable officer could have believed that he was entitled to
use pepper spray gratuitously against a restrained and unresisting arrestee”) (citing Asociacion de
Periodistas de Puerto Rico v. Mueller, 529 F.3d 52, 60–62 (1st Cir. 2008) and Vinyard v. Wilson,
311 F.3d 1340, 1355 (11th Cir. 2002)); Vinyard v. Wilson, 311 F.3d 1340, 1348 (11th Cir. 2002)
(stating that “Courts have consistently concluded that using pepper spray is excessive force in
cases where the crime is a minor infraction, the arrestee surrenders, is secured, and is not acting
violently, and there is no threat to the officers or anyone else.”) (citing 4th, 6th, and 9th Circuit
precedent)); LaLonde v. Cnty. of Riverside, 204 F.3d 947, 961 (9th Cir. 2000) (finding excessive
force when officers left pepper spray on plaintiff’s face and in his eyes for 20 to 30 minutes after
he had surrendered, and stating that the use of pepper spray “may be reasonable as a general
policy to bring an arrestee under control, but in a situation in which an arrestee surrenders and is
rendered helpless, any reasonable officer would know that a continued use of [pepper spray] or a
refusal without cause to alleviate its harmful effects constitutes excessive force”); see also
Headwaters Forest Def. v. Cnty. of Humboldt, 276 F.3d 1125, 1130 (9th Cir. 2002), as amended
(Jan. 30, 2002) (finding that officers’ repeated use of pepper spray on protesters who had locked
themselves together in a congressman’s office was “clearly unreasonable” (quoting LaLonde,

30

Again, because the Special Verdict Sheet did not seek to have the jury clarify the
timing of events, and because the jury found that Failla’s use of force was unreasonable, the
Court cannot find that the jury concluded that Failla pepper-sprayed Plaintiff believing that
Plaintiff was resisting arrest at that moment.
47

204 F.3d at 961)). Once Plaintiff was handcuffed and restrained, any additional use of force was
plainly unnecessary and thus violated clearly established law.
2.
Defendants Found Liable for Failure to Intervene and Supervisory
Liability
a)

Defendants MacNear, Gherardi, and Dunn

The court denies qualified immunity to Defendants MacNear, Gherardi, and Dunn. The
jury found that MacNear, Gherardi, and Dunn were liable for failing to intervene in another
Defendant’s use of excessive force against Plaintiff. Based on their testimony, these three
Defendants appear to have been in the house during the altercation between Plaintiff, Czulada,
and Kurian. It is a reasonable inference, then, that the jury found them liable for failing to
intervene in Czulada’s use of excessive force against Plaintiff. It is reasonable to infer as well
that the jury found that these three Defendants also observed Defendant Kurian choking Plaintiff
with his baton and failed to intervene. Regarding MacNear, the jury found that he was also
liable for authorizing, ordering, or helping Czulada, Kurian, Reo, and/or Failla to use excessive
force against Plaintiff.
The Court credits the jury’s determination that there was a reasonable opportunity for
MacNear, Gherardi, and Dunn to intervene, as that is an element reflected in their verdict. See
Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994) (“Whether an officer had sufficient time to
intercede or was capable of preventing the harm being caused by another officer is an issue of
fact for the jury unless, considering all the evidence, a reasonable jury could not possibly
conclude otherwise.”). While it may be difficult to conclude that there was a chance to intervene
to prevent one punch, in the case of Czulada’s use of excessive force, the Court cannot conclude
that the jury was incorrect as a matter of law in finding that there was an opportunity to intervene
in at least one of the excessive force incidents that the jury determined took place inside the
48

house, especially because Plaintiff testified that Kurian held the baton to his throat long enough
for Kurian to tell Plaintiff to relax multiple times. (1/27/16 Tr. 46–48, Jackson.) Similarly,
assuming at this stage that there is sufficient evidence to support the jury’s finding of supervisory
liability as to MacNear, he is not entitled to qualified immunity for ordering, helping, or
authorizing a use of force that violated clearly established law.
b)

Defendant Braumann

The Court also denies qualified immunity to Defendant Braumann. The evidence shows
that he arrived with Kurian, and placed himself in the house around the time of the CzuladaPlaintiff-Kurian incident. (2/2/16 Tr. 11–13, Braumann.) Braumann testified that entered the
house with Kurian and that he saw Czulada inside the house. (2/2/16 Tr. 13–14, Braumann.) The
jury’s finding that he failed to intervene in the use of excessive force by at least one Defendant
could be premised on a finding that Braumann lied about seeing the Plaintiff-Czulada-Kurian
incident while inside the house. If Braumann did see either Czulada or Kurian use excessive
force on Plaintiff and failed to intervene, despite having the opportunity to do so—findings that
are reflected in the jury’s verdict—then he would not be entitled to qualified immunity.
Defendants, therefore, have failed to meet their burden of demonstrating that Braumann is
entitled to qualified immunity.31

31

This conclusion leaves open the question of whether there was sufficient evidence of
Braumann’s liability for excessive force. Braumann testified that he did not see Plaintiff inside
the house, (2/2/16 Tr. 17–18, Braumann), and Plaintiff admitted that he did not remember
Braumann from the scene (and only sued him after finding out that Braumann was at the scene).
(1/27/16 Tr. 142–43, Jackson). In the Special Verdict Sheet, the jury found that Braumann did
not believe that Plaintiff had committed any of the four criminal acts that the jury found other
Defendants believed or saw. (Special Verdict Sheet, at 4.)
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c)

Defendant Boneta

Defendant Boneta is not entitled to qualified immunity as well. Based on Boneta’s own
testimony, he was in a position to have seen Reo hit Plaintiff in the back of the head. (2/1/16 Tr.
10–11, Boneta.) The jury’s finding that Boneta believed he saw Plaintiff shove Reo supports a
finding that Boneta was present when Reo subjected Plaintiff to excessive force. Since it is a
reasonable inference that the jury found that Boneta observed Reo hit Plaintiff unprovoked in the
back of the head, which was, as discussed, a clearly established constitutional violation, Boneta
is not entitled to qualified immunity. Once again, the Court credits the jury’s determination that
Boneta had an opportunity to intervene and did not do so, because the evidence does not negate
such a finding.
d)

Defendants Deferrari and Heerey

The Court also denies qualified immunity to Defendants Deferrari and Heerey. The jury
found that Deferrari and Heerey failed to intervene to prevent the use of excessive force against
Plaintiff. Deferrari testified to seeing several officers with “their ASPs out hitting [Plaintiff] in
the legs trying to get him down to the ground.” (2/2/16 Tr. 131–32, Deferrari.) Heerey testified
that he jumped in to physically assist in restraining and handcuffing Plaintiff. (1/29/16 Tr. 125–
28, Heerey.) Thus, it is reasonable to infer that the jury found that both officers either observed
Plaintiff being beaten with batons while he was not resisting, and/or observed Failla use pepper
spray on Plaintiff after he was handcuffed—either of which, as previously discussed, would have
been a clearly established constitutional violation that Deferrari and Heerey failed to intervene
in, despite having the opportunity to do so.

Accordingly, neither Deferrari nor Heerey are

entitled to qualified immunity.

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e)

Defendant Tellado

The Court does not find that Tellado is entitled to qualified immunity as a matter of
law.32 The jury found that he failed to intervene to prevent the use of excessive force against
Plaintiff. This verdict could have been based on a finding that Tellado arrived in the street in
time to observe officers beating Plaintiff with their batons, or that he arrived in time to observe
Failla pepper spray Plaintiff, and did not intervene with respect to either conduct.

At a

minimum, if Tellado observed Failla pepper-spraying Plaintiff while Plaintiff was handcuffed,
and as the jury found, had an opportunity to prevent it, he would not be entitled to qualified
immunity.33
CONCLUSION
For the foregoing reasons, Defendants Deferrari, Reo, Heerey, MacNear, and Boneta are
entitled to qualified immunity regarding the false arrest verdicts against them, and those verdicts,
both for liability and for damages, must be overturned. However, Defendants Failla and Tellado

32

This ruling leaves open the possibility that Tellado will be able to successfully
challenge the sufficiency of the evidence with respect to the findings of liability against him.
33

As a final consideration, the Court takes notice of the fact that courts in this district
have observed that when a jury has awarded punitive damages, an assertion of qualified
immunity “seem[s] especially hollow.” Harewood v. Braithwaite, 64 F. Supp. 3d 384, 401
(E.D.N.Y. 2014), appeal withdrawn (April 2, 2015) (quoting Adedeji v. Hoder, 935 F. Supp. 2d
557, 571 (E.D.N.Y. 2013)). “The jury having found that [the defendant’s] conduct was
malicious or wanton cuts deeply against [the defendant’s] argument that the Court should find
him immune on the ground that he acted in [an] objectively reasonable manner.” Id. See also
Robertson v. Sullivan, 07-CV-1416, 2010 WL 1930658, at *4 (E.D.N.Y. 2010) (“The jury
having found that each defendant deserved to be punished for engaging in such behavior, it is
difficult to fathom the defendants’ post-verdict claim that [the Court] should find them immune
on the ground that [they] acted in an objectively reasonable manner.”). The verdict sheet in this
case did not specify whether punitive damages were for Defendants’ false arrest or excessive
force liability, or both. Although the Court, in light of the special verdict sheet, is compelled to
grant qualified immunity to some Defendants on the false arrest claim notwithstanding the jury’s
punitive damages award, the Court finds that that award reinforces the Court’s denial of qualified
immunity on the excessive force claim.
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are not entitled to qualified immunity for the false arrest verdict against them, and none of the
Defendants who were found liable for excessive force are entitled to qualified immunity for the
excessive force verdicts against them. Defendants shall have 28 days after the issuance of this
Order in which to file their motion for judgment as a matter of law under FRCP Rule 50, or
alternatively for a new trial under FRCP Rule 59, as to the remaining Defendants.
SO ORDERED.
/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: February 15, 2017
Brooklyn, New York

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