Walsh v. The City Of New York , et al

Filing 100

OPINION AND ORDER DENYING DEFENDANTS POST-TRIAL MOTION re: 92 FIRST MOTION for Judgment For the reasons discussed in this opinion and order, Roach and Clark's post-trial motion pursuant to Rules 50(b) and 59(a), Fed. R. Civ. P, is denied. The Clerk shall terminate the motion (Dkt. No. 92). There are no other pending or open items before the district court in this docket. (Signed by Judge Alvin K. Hellerstein on 7/7/2017) (js)

USbCSONY
DOCUMENT
·ELECTRONICALLY FILED

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

-------------------------------------------------------------

)(

MARTIN WALSH,
OPINION AND ORDER
DENYING DEFENDANTS'
POST-TRIAL MOTION

Plaintiff,
v.

LIEUTENANT JASON LUNSFORD, NEW
YORK CITY POLICE OFFICER MICHAEL
CLARK, and NEW YORK CITY POLICE
SERGEANT CATHERINE ROACH

14 Civ. 7108 (AKH)

Defendants.

-------------------------------------------------------------

)(

ALVIN K. HELLERSTEIN, U.S.D.J.:
Defendants Michael Clark and Catherine Roach move to vacate the jury's verdict
and ask the Court to grant, alternatively, judgment as a matter of law or a new trial. Fed. R. Civ.
P. 50(b); 59(a). They contend that the evidence does not support th~ verdict of $225,000
compensatory damages and $100,000 punitive damages, for falsely arresting plaintiff Martin
Walsh and causing him to be maliciously prosecuted. They contend also that the verdict is
inconsistent with the jury's finding that defendant Jason Lunsford is not liable to plaintiff.
The motion is denied. The evidence amply supports the verdict against Roach
and Clark; the jury was properly instructed; and there were no evidentiary errors in the court's
rulings.
THE EVIDENCE
Defendants Lunsford, Clark and Roach were all working as law enforcement
officers for the New York Police Department on the night of the incident. Plaintiff Martin Walsh

is a senior court clerk in New York State Criminal Court and a peac~ officer, authorized to make
arrests for crimes committed within his presence, whether on or off duty. Walsh also worked
during off-duty hours as an armed security guard for Ambassador Protection Services. Tr. 5759.
On New Year's Eve, December 31, 2013, Walsh was working as a security guard
at the Hilton Hotel located at Sixth Avenue and 54th Street in Manhattan. He was posted in front
of an "exit only" door to prevent pedestrians from entering the Hilton through that door. Tr. 6162. The purpose of establishing this exit only door on New Year's Eve was to prevent non-guest
pedestrians from cutting through the hotel in attempt to get closer to Times Square. Tr. 41, 60.
At approximately 6:15 p.m., David Vadala approached Walsh at a "jogging" pace
and attempted to push his away past Walsh and into the hotel, exclaiming, "I gotta get in here."
Tr. 62. Vadala grabbed Walsh by the lapels of his coat and shoved him into the exit door, trying
to get past Walsh. Tr. 62-63. Walsh then punched Vadala in the face to free himself and sought
to arrest him. Tr. 65. The two tumbled to the ground, and other security guards and nearby
police officers came to the scene. Vadala "resisted violently," and it took the effort of several
officers to subdue Vadala and place him in handcuffs. Tr. 66-67. During the struggle, Vadala
yelled, "I'm retired, I'm retired," which Walsh interpreted to mean that Vadala was a retired
police officer. Tr. 67.
After Vadala was restrained, defendant Lieutenant Ja~on Lunsford, an officer on
the scene, spoke with Walsh. Lunsford was from the 75th precinct in Brooklyn, but was
assigned to midtown Manhattan to provide extra security on New Year's Eve. Walsh told
Lunsford that he had arrested Vadala in his capacity as a peace officer. Tr. 68. Lunsford
responded that the police would handle the arrest, and instructed Walsh, as the complainant, to

2

go to the nearby 18th precinct, and file a complaint against Vadala. Tr. 69. Lunsford took
Walsh's ID as a precaution, and Walsh voluntarily walked to the 18th precinct, unescorted. Tr.
71. Vadala, by contrast, was handcuffed, transported to the 18th precinct in a police car, and
placed in a holding cell or interrogation room. Tr. 68, 72, 240.
Walsh testified that when he arrived at the 18th precinct to file a complaint
against Vadala, he was told to wait in a room. After some time, defendant Officer Michael Clark
entered the room, leaned over the edge of a desk, pointed at Walsh, and stated, "I don't know if
you know how things work in the police department, but you gotta shit-can this job." Tr. 74.
Walsh responded, "I can't do that,'' and Clark "stormed" out of the r6om. Tr. 75.
A few minutes later, Sergeant Catherine Roach, the desk sergeant in charge of the
18th precinct that night and Officer Clark's superior, entered the room and asked Walsh what
had happened. Walsh told her and said that he had come to the precipct to file a complaint
against Vadala. Roach responded, "OK, we'll see about that," and walked out of the room. Tr.
76. A few minutes later, Roach returned with Lunsford, who had arrived at the precinct. Walsh
again explained what had happened, and asked if he needed a lawyer: Roach responded, "Well,
if that's the route you are going to go, we're going to have to go farther with this." Tr. 77.
Roach and Lunsford then left the room. After more time had passed,, Roach returned and asked
Walsh, "Well, are you going to drop the charges?" Tr. 80. After Walsh again stated he would
not do that, Roach responded, "All right. Tum around. Put your hands behind your back.
You're under arrest," and handcuffed Walsh. Id Roach instructed Officer Jhonny Milfort, a
novice officer who was assigned to the 18th precinct on temporary duty that night, to swear out
the complaint against Walsh charging him with assault. Tr. 212-213. Walsh spent the night in
jail, and was arraigned the following day. Tr. 111-12.

3

Throughout that evening, Roach and Clark interacted with Vadala as well. Tr.
232, 292. When Vadala was first brought into the precinct, Clark recognized Vadala because
they served together at the 18th precinct in the early 1990s. Tr. 285. Clark and Vadala spoke
three times that evening, and Roach estimated that she spoke with Vadala for about an hour. Tr.
249, 336. They asked Vadala if he wanted to press charges against Walsh, to enable them to
make a joint offer to both under which they would drop their complaints against each other and
accept a summons for a violation in lieu of arrest and detention. Tr. 236-37, 277-78, 328-29,
333-34. Walsh made it clear he was not interested in such a deal, and Roach and Clark arrested
both Walsh and Vadala for assaulting each other. Clark told Vadala, 'Tm sorry, it's going
through." Tr. 336.
Lunsford arrived at the 18th precinct after Walsh had arrived. Lunsford testified
that he briefed Roach about the incident between Walsh and Vadala, but did not recall speaking
with Clark. Tr. 162-63. Lunsford again spoke with Walsh and then with Vadala, but did not
recall any details other than Vadala's complaint that Walsh had assal:1lted him. Tr. 164, 167.
Lunsford testified that he offered a criminal summons to both Walsh and Vadala. Tr. 173. This
testimony was in tension with the testimony of Clark, who stated that he and Roach were the
ones who offered the deal to Walsh and Vadala, not Lunsford. Tr. 334. Lunsford left the
precinct after Walsh rejected the offer and was placed under arrest.

DISCUSSION
I.

Roach and Clark's Motion for Judgment as a Matter of Law is Denied
a. Legal Standard

The burden on a party seeking judgment as a matter of law "is particularly heavy
after the jury has deliberated in the case and actually returned its verc;iict." Cross v. NY City

Transit Auth., 417 F .3d 241, 248 (2d Cir. 2005). "In deciding such a motion, the court must give

4

deference to all credibility determinations and reasonable inferences of the jury, and it may not
itself weigh the credibility of witnesses or consider the weight of the evidence." Galdieri-

Ambrosini v. Nat'l Realty & Dev. Corp., 136 F.3d 276, 289 (2d Cir. 1998) (citation omitted).
Consequently, a Rule 50 motion may not be granted unless "(I) there is such a complete absence
of evidence supporting the verdict that the jury's findings could only have been the result of
sheer surmise and conjecture, or (2) there is such an overwhelming amount of evidence in favor
of the movant that reasonable and fair minded [persons] could not arrive at a verdict against [it].

Williams v Cty. of Westchester, 171F.3d98, 101 (2d Cir. 1999) (citation omitted).
b. False Arrest
To prevail on a claim for false arrest under New York law, the plaintiff must show
"(I) the defendant intended to confine [the plaintiff], (2) the plaintiff was conscious of the

confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not
otherwise privileged." Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 118 (2d Cir. 1995) (quoting

Broughton v. State, 37 N.Y.2d 451, 456 (N.Y. 1975)). 1 "The existence of probable cause to
arrest constitutes justification and is a complete defense to an action for false arrest, whether that
action is brought under state law or under§ 1983." Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.
1996) (internal quotation marks and citation omitted). "[P]robable cause to arrest exists when
the 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 ofN. Y., 478 F.3d 76, 84-85
(2d Cir. 2007).

1

The elements of a claim of false arrest pursuant to 42 U.S.C. § 1983 are "substantially the same as the elements of
a false arrest claim under New York law." Hygh v Jacobs, 961 F.2d 359, 366 (2d Cir. 1992) (internal quotation
marks omitted).

5

Roach and Clark argue that they had probable cause to arrest Walsh as a matter of
law because Vadala told them that Walsh had punched him during the altercation at the Hilton
Hotel, and because Vadala had bruise marks on his face. Tr. 232, 287; see Wahhab v. City of
N. Y, 386 F. Supp. 2d 277, 287 (S.D.N.Y. 2005) ("Probable cause will generally be found to exist

when an officer is advised of a crime by a victim or an eyewitness."); Panetta v. Crowley, 460
F.3d 388, 395 (2d Cir. 2006) ("[I]t is well-established that a law enforcement official has
probable cause to arrest if he received his information from some person, normally the putative
victim or eyewitness.") (citation omitted).
This simplistic and selective description of the circumstances surrounding
Walsh's arrest fails to account for the credible facts known or reasonably available to Roach and
Clark at the time they made the arrest, and ignores the material

incon~istencies

in their

testimony.
From Walsh's testimony, which the jury by its verdict found credible, the jury
reasonably found that Roach and Clark arrested Walsh because he re(used to drop his complaint
against Vadala, their former colleague. By any standard, this is not a good faith basis for
arresting someone, and does not constitute probable cause. Roach and Clark argue that an
officer's subjective motivation for making an arrest is irrelevant in assessing probable cause. It
is true that "the standard for probable cause is an objective one, and does not depend upon an
officer's subjective motivations." Selvaggio v. Patterson, 93 F. Supp.: 3d 54, 66 (E.D.N.Y.
2015). But Roach and Clark's reliance on this principle is circular, for it presumes the existence
of probable cause. Absent an objective basis for a finding of probable cause, an officer may not
arrest someone in bad faith, and then shield himself from any inquiry into his motivation for the
arrest. See United States v. McDermott, 918 F .2d 319, 325 (2d Cir. 1990) ("[W]hen police

6

officers acting in bad faith make an arrest without probable cause, t~e person arrested has
suffered a deprivation of liberty without due process of law.").
The jury by its verdict found that Roach and Clark failed to consider facts
reasonably available to them that were critical to the question of probable cause. The jury was
instructed, without objection, that "probable cause exists when the facts and circumstances
known to an arresting officer, or readily available to the arresting officer, taken together are of
such weight and persuasiveness as to convince an officer of ordinary:intelligence, judgment and
experience, that it is reasonably likely that the person arrested commltted a crime." Tr. 468; see
also Mejia v. City of N. Y, 119 F. Supp. 2d 232, 253 (E.D.N.Y. 2000) ("Since the law seeks to
protect citizens against unlawful arrest, the determination of whether probable cause existed
must be made on the basis of the information possessed or reasonably available to the defendant
at the time of the arrest."). "Courts evaluating probable cause for an arrest must consider those
facts available to the officer at the time of the arrest and immediately before it." Lowth v. Town
of Cheektowaga, 82 F.3d 563, 569 (2d Cir. 1996). Although an arresting officer is "not required
to explore and eliminate every theoretically plausible claim of innocence before making an
arrest," Ricciuti v. N. Y.C. Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997), "under some
circumstances, a police officer's awareness of the facts supporting a defense can eliminate
probable cause." Jocks v. Tavernier, 316 F.3d 128, 135 (2d Cir. 2003).
Roach and Clark knew that Walsh had voluntarily come to the precinct
specifically to file a complaint against Vadala, and that Vadala had been brought to the precinct
in handcuffs, having been arrested for assault. Tr. 242, 285. Vadala did claim that he had been
assaulted by Walsh, but Roach and Clark knew that Walsh had been working as a security guard,
that he was a peace officer, and that his use of force was privileged, made in reaction to Vadala's

7

effort to force his way past Walsh into the Hilton. Tr. 280. Significantly, Roach and Clark knew
from the outset that Walsh had punched Vadala, but they made no effort to arrest him until he
refused to drop his complaint against Vadala. Tr. 80. Based on the evidence before it, the jury
reasonably found that Roach and Walsh disregarded information known or reasonably available
to them, and therefore lacked probable cause to arrest Walsh.
There were also numerous inconsistencies in Roach's and Clark's testimony.
Clark testified that he and Roach discussed whether Vadala should be asked whether he wanted
to press charges against Walsh, whereas Roach testified that no such conversation happened. Tr.
261, 327. Clark testified that he had at least three conversations with Walsh and Vadala
throughout the evening, whereas Roach testified that Clark played no role whatever. Tr. 261,
336. Roach's testimony regarding her conversations with Vadala also was internally
inconsistent. During her deposition, she remembered virtually nothing about what Vadala told
her. Tr. 252. But at trial, Roach had a memory; she testified that she:remembered "Vadala
telling me that he was punched by Mr. Walsh, and he kind of cowered down to defend himself
against the punching ... that Mr. Walsh was doing to him." Tr. 232. These inconsistencies
provided a basis for the jury to credit Walsh's testimony over that of Roach and Clark.
Roach and Clark also argue that they were permitted to rely on Lunsford's
determination that there was probable cause to arrest Walsh. Lunsford testified that after
speaking with both Walsh and Vadala at the Hilton, and again at the precinct, he concluded there
was probable cause to arrest both. Tr. 160, 171. Roach and Clark argue that "when making a
probable cause determination, police officers are entitled to rely on the allegations of fellow
police officers." See Panetta, 460 F.3d at 395 (citation omitted).

8

Roach and Clark's reliance on this principle is misplaced because the "fellow
officer" rule is applicable only where an "officer acts upon the direction of or as a result of
communication with a superior or [fellow] officer." Annunziata v. City of NY, 2008 WL
2229903, at *3 (S.D.N.Y. May 28, 2008) (citation omitted); see also United States v. Colon, 250
F.3d 130, 135 (2d Cir. 2001) (under collective knowledge doctrine, "an arresting officer might
not be aware of all the underlying facts that provided probable cause or reasonable suspicion, but
may nonetheless act reasonably in relying on information received by other law enforcement

officials.") (emphasis added). But neither Roach nor Clark ever testified that they relied on a
probable cause determination by Lunsford, or on any information that Lunsford provided to
them. Roach testified that she came to the decision to arrest Walsh "independently," and only
"ran it past" Lunsford. Tr. 234, 237. When asked if she and Lunsford collaborated on the
'
decision to arrest Walsh, she said "no." Tr. 263. As to Clark, Lunsford testified that he had no
recollection of speaking to Clark that evening, and Clark gave no indication that he relied on
information provided by Lunsford. Tr. 163, 332.
Absent evidence suggesting that Roach and Clark actually relied on Lunsford's
probable cause determination, or on information he supplied, they cannot invoke the fellow
officer rule. See Charles v. City of NY, 2014 WL 1284975, at *7 (S.b.N.Y. Mar. 31, 2014)
(rejecting defendant officers' invocation of the fellow officer rule where it was a question of fact
whether arresting officers actually relied on fellow officer's statements before making arrest).
There was also sufficient evidence for the jury to conclude that Lunsford simply
wasn't involved in Roach and Clark's scheme to pressure Walsh into dropping his complaint.
Lunsford did testify that he offered both Vadala and Walsh a criminal summons, Tr. 173, but this
was inconsistent with the testimony of Clark, who stated that when he asked for Lunsford's

9

:

blessing to make this offer, Lunsford said that "he didn't care, he just wanted it to be over." Tr.
l

334. Walsh never testified that Lunsford tried to pressure him into dropping the complaint.
Based on this evidence, the jury reasonably concluded that there was not a sufficient basis to
hold Lunsford liable for Walsh's arrest.
Roach and Clark argue also that the jury's verdict, in favor of Lunsford, but
against them, was inconsistent and irreconcilable. See Lavoie v. Pac. Press & Shear Co., a Div.
of Canron Corp., 975 F.2d 48, 53 (2d Cir. 1992) ("When the verdicts are not capable of
reconciliation ... a new trial may be-but is not always-required."). For the reasons discussed
above, there is no merit to this argument. The jury reasonably found that Roach and Clark were
liable to Walsh, and that Lunsford was not.
Lastly, Clark argues that he cannot be liable for falsely arresting Walsh because
I

he was not in the room when Walsh was arrested. It is true that "personal involvement of
defendants in alleged constitutional deprivations is a prerequisite to an award of damages under §
1983," Wright v. Smith, 21 F.3d 496, 50 I (2d Cir. 1994) (citation omitted), but the jury was
presented with sufficient evidence to infer that Clark was personally involved in the decision to
arrest Walsh, as much as was Roach. In addition to telling Walsh that he had to "shit-can" his
complaint against Vadala, Walsh also testified that after he had been arrested and was placed in a
holding cell, Clark approached Walsh, handed Walsh his cell phone, and stated, "Your boss is
going to call you in a minute. You'd better do what he says." Tr. 85. Walsh then spoke on the
phone with John Kelly, his boss at Ambassador Protective Services, the security company Walsh
was working for that evening. When Walsh told his boss, "I didn't do anything wrong, I can't do
that," Clark reached into the cell, grabbed the phone from Walsh's hand, and said, "You're

10

done." Tr. 87, 97. It was reasonable for the jury to conclude that Clark played an active role in
the decision to arrest Walsh.

a. Malicious Prosecution
To prevail on a claim for malicious prosecution, a plaintiff must prove "( 1) the
initiation or continuation of a criminal proceeding against plaintiff; (2) termination of the
proceeding in plaintiffs favor; (3) lack of probable cause for commencing the proceeding; and
(4) actual malice as a motivation for defendant's actions." Murphy v. Lynn, 118 F.3d 938, 947
(2d Cir. 1997) (citation omitted). The jury's verdict is supported by sufficient evidence on each
of these elements.
First, Roach and Clark argue that Walsh failed to introduce any evidence showing
that they personally took affirmative steps to initiate Walsh's criminal prosecution. However, a
"police officer can also initiate a prosecution by creating material, false information and
forwarding that information to a prosecutor or by withholding material information from a
prosecutor." Costello v. Milano, 20 F. Supp. 3d 406, 415 (S.D.N.Y. 2014). The jury had a
sufficient basis to conclude that Roach and Clark withheld material information: namely, that
Walsh had come to the precinct voluntarily in order to file a complaint against Vadala, and that
Walsh's use of force, deployed as a security guard responding to Vadala's effort to push his way
through the exit door, likely was privileged.
Roach and Clark also seek to shift responsibility to non-party Jhonny Milfort, the
officer who formally swore out the criminal complaint against Walsh. "For a police officer to be
held responsible for malicious prosecution, however, his role need not be so direct," Phelps v.
City ofN. Y, 2006 WL 1749528, at *4 (S.D.N. Y. June 27, 2006), and '.'there is no requirement

that an officer have direct contact with the prosecutor." Maldonado v. City of N. Y, 2014 WL
787814, at *6 (S.D.N.Y. Feb. 26, 2014). In Phelps, for example, the court reasoned that because

11

•'

the jury could find that statements made by the defendant officers to the complaining officer
caused the plaintiff to be arrested, "their actions could be deemed to have initiated the
prosecution." 2006 WL 1749528, at *4. That is what the jury found here, that it was not Milfort,
but Roach and Clark who instigated Walsh's prosecution, even though they had no direct contact
with the prosecutor and did not personally swear out the criminal complaint.
Second, Roach and Clark argue that Walsh failed to introduce sufficient evidence
to show that the prosecution was terminated in his favor. However, "'[ f]or the termination of a
proceeding to be in the plaintiffs favor, the plaintiff must merely show a termination of the
proceeding that is 'not inconsistent with innocence.'" Phelps, 2006 WL 1749528, at *5 (quoting
Rothstein v. Carriere, 373 F.3d 275, 286 (2d Cir. 2004)). Walsh testified that after making three
court appearances, the district attorney dismissed the case on his own motion. Tr. 113-15. The
dismissal was not the result of any compromise or plea on the part of Walsh. From this
evidence, the jury reasonably found that the prosecution was terminated in Walsh's favor. See
Liberty Synergistics, Inc. v. Microjlo Ltd., 50 F. Supp. 3d 267, 289 (E.D.N.Y. 2014) (where
action "was terminated by abandonment under circumstances not inconsistent with innocence, it
is a favorable termination.").
Third, Roach and Clark argue that there was probable cause to prosecute Walsh.
The jury disagreed, and there was sufficient evidence for the jury's findings that Roach and
Clark lacked probable cause both to arrest Walsh and to initiate the prosecution against him.
Finally, the jury's finding that Roach and Clark acted with actual malice was
supported by the evidence. As the jury found, Roach and Clark arrested Walsh and caused him
to be prosecuted as a means of protecting Vadala, their former colleague, and thus the
"prosecution complained of was undertaken from improper or wrongful motives, or in reckless

12

disregard of the rights of the plaintiff," Pinsky v. Duncan, 79 F.3d 306, 313 (2d Cir. 1996), and
with actual malice. See Ricciuti v. N. Y C. Transit Auth., 124 F.3d 123, 131 (2d Cir. 1997) (a jury
may "find that probable cause for the charges against the plaintiffs was lacking, and that finding
alone would support an inference of malice.").

c. Qualified Immunity
Although the "qualified immunity standard gives ample room for mistaken
judgments," it does not extend to "those who knowingly violate the law." Hunter v. Bryant, 502
U.S. 224, 229 (1991) (citation omitted). The jury found that Roach ahd Clark acted maliciously
or wantonly; that is, with "ill-will, spite, or complete disregard of the rights of another," Tr. 482,
and awarded Walsh $100,000 in punitive damages. See Smith v. Wade, 461 U.S. 30, 56 (1983)
(a "jury may be permitted to assess punitive damages in an action under§ 1983 when the
defendant's conduct is shown to be motivated by evil motive or intent, or when it involves
reckless or callous indifference to the federally protected rights of others."). The jury had
sufficient evidence to conclude that Roach and Clark "knowingly viol_ate[d] the law," Hunter,
502 U.S. at 229, that their decision to arrest and prosecute Walsh was ."manifestly unreasonable,"

Arrington v. City of NY, 628 F. App'x 46, 49 (2d Cir. 2015) (quoting· Lowth v. Town of
Cheektowaga, 82 F.3d 563, 572 (2d Cir. 1996)), and that their behavior manifested "reckless or
callous indifference to the federally protected rights of others," namely, Walsh.

II.

Roach and Clark's Motion for a New Trial is Denied

Under Rule 59(a), a motion for a new trial may be granted "on all or some of the
issues ... for any reason for which a new trial has heretofore been granted in an action at law in
federal court." Fed. R. Civ. P. 59(a). A "jury's verdict ... should rarely be disturbed." Farrior v.

Waterford Bd of Educ., 277 F.3d 633, 635 (2d Cir. 2002) (citation omitted). A district court
''ordinarily should not grant a new trial unless it is convinced that the jury has reached a

13

seriously erroneous result or that the verdict is a miscarriage of justice." Smith v. Lightning Bolt

Prods., Inc., 861 F.2d 363, 3 70 (2d Cir. 1988). Because the jury has not reached a "seriously
erroneously result" and its verdict is not a "miscarriage of justice," the motion for a new trial is
denied.

a. The Verdict Against Roach and Clark 'fas Not Against the Clear
Weight of the Evidence
A district court is "authorized to order a new trial on the basis that the jury verdict
is against the clear weight of the evidence." Israeli v. Ruiz, 2015 WL 6437374, at *2 (S.D.N.Y.
Oct. 7, 2015). In contrast to a Rule 50 motion, on a Rule 59 motion, 1'the trial judge may weigh
the evidence and the credibility of witnesses and need not view the eyidence in the light most
favorable to the verdict winner." Raedle v. Credit Agricole Indosuez, 670 F.3d 411, 418 (2d Cir.
2012). That said, "trial judges must exercise their ability to weigh credibility with caution and
great restraint, as a judge should rarely disturb a jury's evaluation of a witness's credibility, and
may not freely substitute his or her assessment of the credibility of witnesses for that of the jury
simply because the judge disagrees with the jury." Id (internal quotation marks and citations
omitted). The jury found for Walsh against defendants Roach and Clark because it found that
they lacked probable cause to arrest Walsh and to cause him to be prosecuted. For the reasons
discussed previously, there was sufficient evidence for this verdict, and there is no basis to
disturb it by requiring a new trial.

b. The Court Did Not Improperly Comment on Defendant Roach's
Credibility
Roach and Clark complain that the Court's questions to Roach about the
inconsistencies between her trial testimony and her deposition testimony unfairly influenced the
jury. See Tr. 254-56.

14

A "trial court may actively participate and give its own impressions of the
evidence or question witnesses, as an aid to the jury, so long as it does not step across the line
and become an advocate for one side .... Because a federal trial judge is not a passive spectator
or moderator, he or she retains the undoubted right to express his or her opinion of the facts to
the jury; but, if the court argues the case, it must argue it for both sides[.]" United States v.
Filani, 74 F.3d 378, 385 (2d Cir. 1996). A judge may not, however, "interrogate so zealously as
to give the jury an impression of partisanship or foster the notion that the judge believes one
version of an event and not another." Id. at 386. The Court's questiqning of Roach's
inconsistencies was no different from its questioning of inconsistencies in Walsh's testimony,
see Tr. 78, 134, and courts are permitted to challenge witnesses in this manner. See United
States v. Lasher, 661 F. App'x 25, 27 (2d Cir. 2016) (holding that criminal defendant was not
denied a fair trial where district judge admonished defendant for giving unresponsive or evasive
answers); Care Travel Co. v. Pan Am. World Airways, Inc., 944 F.2d 983, 991 (2d Cir. 1991)
(judges have "the duty to see that the facts are clearly presented."). Moreover, the "overriding
consideration is whether the judge saw to it that the jury had all the admissible evidence and
knew it was free to find the facts as it thought the evidence showed them to be." Filani, 74 F.3d
at 386. I instructed the jury to consider only the answers of witnesses, and not who asked the
question, whether by the Court or by counsel. Specifically, I instructed the jury as follows:
Only the witness' answer, taken in the context of the question that was asked, is
evidence. That applies to me just the same way as it applies to the lawyer. Nothing
I've said during this trial - I want to stress it. Nothing I've said during this trial or
may say in these instructions should influence you in any way with regard to your
job of finding the facts. The fact that I asked a question during the trial - and I
asked a few - does not mean that my questions are more important than the lawyers'
questions. The answers given to the questions I asked are not more important than
the answers given to the questions asked by the lawyers. I have no opinion about
the facts in the case. That's your job. I have no opinion about the credibility of
any witness. That's your job. To the extent that you think that I had an opinion,

15

,.

disregard it. It's not my job. You should not take any hints:from questions that I
asked or from the manner in which I asked questions. You are to consider only the
answers to the questions asked. It makes no difference who asked the questions.
Tr. 490.
The Court's questioning of Roach did not mislead the jury or cause Roach to suffer
any prejudice.

c. The Verdict Sheet Was Not Improper
Roach and Clark argue that the verdict sheet erroneously failed to permit the jury
to make separate assessments with respect to punitive damages for each defendant. But there
was no basis in the evidence to permit the jury to draw a distinction between Roach and Clark,
for they acted as one. Significantly, Roach and Clark were represented by the same lawyer.
Nor did Roach and Clark preserve this argument. Counsel for defendants did
request that "damages be separated between the parties." But that comment and objection
focused on the verdict sheet for compensatory, not punitive damages, Tr. 396, and defendants'
counsel made no objection to the jury instruction regarding punitive damages. An objection to a
verdict sheet not made until after the jury delivers its verdict is not pr~served. See Fed. R. Civ.
P. 51.

d. The Jury Instruction Regarding the
Force Was Not Improper

Righ~

of Peace Officers to Use

Roach and Clark argue that the jury instruction regarding the right of peace
officers to use force was improper. Walsh was working as a security guard on behalf of the
Hilton Hotel when the incident with Vadala occurred. Walsh was also a peace officer by virtue
of his employment as a court clerk. 2 I instructed the jury that "one of the questions an officer
must consider in believing that he had probable cause to arrest is if the.person about to be

2

As a peace officer, Walsh had the authority to arrest a person who committed a crime in his presence, whether on
or off duty. See N.Y. Crim. Proc. Law§ 140.25.

16

arrested was privileged in using the force for which he was arrested.'.' Tr. 471. I then instructed
that Walsh, as a peace officer, had the "right to use physical force which he reasonably believes
is reasonably necessary to effect the arrest or to save himself from harm." Id Regarding
Walsh's status as a security guard, I also instructed the jury that "if a.person is engaged to protect
a property from wrongful entry, that person so engaged may use such physical force as he
reasonably believes is reasonable necessary to prevent someone from wrongfully entering that
property." Id
Roach and Clark argue that this instruction misled the jury because it suggested
that Roach and Clark were obligated to investigate whether Walsh was justified in using force
against Vadala. It is true that an arresting officer is "not required to explore and eliminate every
theoretically plausible claim of innocence before making an arrest," Ricciuti v. N Y C. Transit
Auth., 124 F.3d 123, 128 (2d Cir. 1997), but "[r]easonable avenues of investigation must be

pursued [to establish probable cause]," Oliveira v. Mayer, 23 F.3d 642, 647 (2d Cir. 1994)
(quoting Be Vier v. Hucal, 806 F.2d 123, 128 (7th Cir. 1986)), and "a police officer may not close
her or his eyes to facts that would help clarify the circumstances of an arrest." Wu v. City of
NY, 934 F. Supp. 581, 587 (S.D.N.Y. 1996) (quoting Be Vier, 806 F.2d at 128).

That Walsh was a peace officer and was working as a security guard when the
incident with Vadala occurred are undoubtedly relevant "facts that would help clarify the
circumstances" leading to Walsh's arrest. Although an arresting officer is not required to
investigate every exculpatory defense put forth by a suspect, the officer cannot disregard plain
and undisputed facts. Roach and Clark knew that Walsh was a security guard and a peace
officer, that he had the right to use reasonable force to prevent Vadala from forcing his way
through an exit-only door, and that Walsh had come to the precinct specifically to lodge a

17

criminal complaint against Vadala. The jury had sufficient evidentiary basis to find that Roach
and Clark did not consider facts plainly before them, and the jury instruction was proper.
e. The Jury Did Not Consider Inadmissible Evidence
Finally, Roach and Clark argue that Court erred by

fa~ling

to dismiss Walsh's

civil conspiracy claim prior to trial, which they claim resulted in the jury hearing testimony that
otherwise would have been inadmissible. Roach and Clark contend ~hat absent a civil conspiracy
claim, all testimony concerning their subjective motivations and their scheme to pressure Walsh
into dropping the charges against Vadala would have been precluded. This argument fails.
Testimony on these subjects was admissible regardless of the existence of a civil conspiracy
claim, for it provided context for the circumstances surrounding Walsh's arrest and was relevant
to the question of whether Roach and Clark acted in bad faith by arresting Walsh.
CONCLUSION
For the reasons discussed in this opinion and order, Roach and Clark's post-trial
motion pursuant to Rules 50(b) and 59(a), Fed. R. Civ. P, is denied. The Clerk shall terminate
the motion (Dkt. No. 92). There are no other pending or open items before the district court in
this docket.
SO ORDERED.
Dated:

~~-~

7_,

July
2017
New York, New York

United States District Judge

18