McKnight v. City of Rochester, New York et al
Filing
97
DECISION AND ORDER I find that an award of compensatory damages is warranted, and the Clerk of the Court is directed to enter judgment for plaintiff Miriam McKnight against defendant Gregory Vasile in the total amount of $191,000 ($190,000 for her emotional and deprivation of liberty injuries and $1,000 for her compensable physical injuries) with prejudgment interest to be awarded at the rate of 9% per annum from March 30, 2017, through the entry of this judgment, with any post-judgment interest to be calculated pursuant to 28 U.S.C. § 1961. I further find that punitive damages are not justified. Signed by Hon. Marian W. Payson on 9/27/2018. (KAH)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
MIRIAM McKNIGHT,
DECISION & ORDER
Plaintiff,
11-CV-6328P
v.
G. VASILE,
Defendant.
_______________________________________
By Decision and Order dated March 30, 2017, this Court granted judgment in
favor of plaintiff Miriam McKnight (“McKnight”) against defendant Gregory Vasile (“Vasile”)
on her state law claims for false arrest and imprisonment, and battery. (Docket # 87). Judgment
was granted in favor of Vasile and Michael Nicholls (“Nicholls”) on the remaining claims. (Id.).
Familiarity with the Court’s lengthy decision, which followed a bench trial, is assumed.
The Decision and Order did not determine the issue of damages, noting that the
parties had devoted “fairly scant attention” to it in their post-trial memoranda, and ordered them
to submit supplemental memoranda on the issues of compensatory and punitive damages. (Id. at
65). Both parties have done so (Docket ## 94, 96), and the Court has considered those
submissions. The issue of damages is ripe for determination.
COMPENSATORY DAMAGES
The goal of compensatory damages is “to restore the injured party, to the extent
possible, to the position that would have been occupied had the wrong not occurred.”
McDougald v. Garber, 73 N.Y.2d 246, 254 (N.Y. 1989). Accordingly, such damages should be
awarded in an amount appropriate “to compensate the victim, not to punish the wrongdoer.” Id.
at 253-54; see also Presler v. Compson Tennis Club Assocs., 27 A.D.3d 1096, 1097 (4th Dep’t
2006). Moreover, “[a] basic principle of compensatory damages is that an injury can be
compensated only once.” Bender v. City of New York, 78 F.3d 787, 793 (2d Cir. 1996).
Accordingly, where a defendant is found liable on two causes of action providing a legal basis to
compensate the same injury, the plaintiff is only entitled to recover once. Id.
“Generally, a plaintiff may recover for loss of earnings, medical expenses, and
mental and physical pain and suffering attributable to the defendant’s [tortious conduct].”
Robinson v. United States, 330 F. Supp. 2d 261, 290 (W.D.N.Y. 2004). Monetary awards for
pain and suffering are “inherently subjective . . . , not subject to precise quantification, and
generally present[] a question of fact.” Leto v. Amrex Chem. Co., 85 A.D.3d 1509, 1511 (3d
Dep’t 2011) (internal quotations omitted); see Saladino v. Stewart & Stevenson Servs., Inc., 2011
WL 284476, *3 (E.D.N.Y. 2011) (“[b]oth federal and state courts have long acknowledged that,
in contrast to economic damages, awards for pain and suffering ‘do not lend themselves as easily
to computation,’ and a precise measure is simply ‘impossible’”) (quoting In re Joint E. & S. Dist.
Asbestos Litig., 9 F. Supp. 2d 307, 311 (S.D.N.Y. 1998) and Braun v. Ahmed, 127 A.D.2d 418,
424 (2d Dep’t 1987)), aff’d, 500 F. App’x 69 (2d Cir. 2012). “‘Factors to be considered in
evaluating such awards include the nature, extent and permanency of the injuries, the extent of
past, present, and future pain and the long-term effects of the injury,’ including the effect on the
capacity to enjoy life, engage in daily tasks and/or activities that once brought pleasure, as well
as any loss of self-esteem.” Cody v. State of New York, 59 Misc. 3d 302, 314 (N.Y. Ct. Cl. 2017)
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(quoting Nolan v. Union Coll. Trust of Schenectady, N.Y., 51 A.D.3d 1253, 1256 (3d Dep’t), lv.
denied, 11 N.Y.3d 705 (N.Y. 2008)).
Compensable damages caused by an unlawful arrest generally include two
components: “(1) deprivation of liberty and (2) tangible injury, which includes physical harm,
embarrassment, and emotional suffering.” Martinez v. Port Auth. of N.Y. and N.J., 2005 WL
2143333, *19 (S.D.N.Y. 2005), aff’d, 445 F.3d 158 (2d Cir. 2006); see McPherson v. City of
New York, 122 A.D.3d 809, 810 (2d Dep’t 2014) (“[c]ompensatory damages for false arrest are
typically warranted even when the sole or primary injury suffered is loss of liberty”); Sanabria v.
State of New York, 29 Misc. 3d 988, 993 (N.Y. Ct. Cl. 2010) (“[s]uch damages may include
noneconomic damages for mental anguish and economic damages for loss of earnings . . . , as
well as noneconomic damages for loss of liberty during a period of unlawful confinement”).
Deprivation of liberty damages “redress the denial of free movement and the violation done to
[an individual’s] dignity, as a result of the unlawful detention, and not the physical and mental
injuries arising from the incident.” Gardner v. Federated Dep’t Stores, Inc., 907 F.2d 1348,
1353 (2d Cir. 1990); see Sanabria v. State of New York, 29 Misc. 3d at 994 (“[d]amages
attributable to loss of liberty include damages for the loss of the fundamental right to be free, lost
opportunities to engage in everyday activities while confined, and for the mental anguish that
accompanies the loss of liberty”).
The record demonstrates that McKnight sustained physical injuries and suffered
ongoing emotional injuries as a result of her interaction with Vasile and Nicholls on July 3, 2010,
her arrest by them that night, her detention in jail until the following morning, and her
subsequent prosecution. McKnight’s physical injuries consisted of lacerations and scarring to
her left arm and, as a result of Nicholls’s use of pepper spray, eye and skin pain and discomfort
3
and breathing difficulties, the intensity of which was substantial the night of her arrest and
dissipated over the course of a week. Those injuries are described in much greater detail in my
earlier decision. (See Docket # 87 at 19-20).
Testimonial evidence of McKnight’s emotional injuries was offered by McKnight
herself and by Charles Ewing, PhD, a forensic psychologist who was retained to evaluate her “to
determine whether and[,] if so[,] to what extent she was psychologically injured by the actions
taken against her by employees of the City of Rochester on July 3rd and 4th, 2010 and
subsequently.” (Id. at 22 (emphasis added)). Dr. Ewing opined that McKnight suffered from
“reoccurring episodes of major depression” and post-traumatic stress disorder (“PTSD”) as a
direct result of her treatment by Vasile and Nicholls and the related criminal proceedings. (Id.).
Dr. Ewing’s testimony concerning the symptoms, characteristics, severity, effects, and duration
of McKnight’s psychological injuries, and her prognosis for improvement, are described in
significant detail in my earlier decision. (See id. at 22-25).
As an initial matter, I find the expert testimony of Dr. Ewing, a well-credentialed
and extremely experienced forensic psychologist, credible and helpful to the Court. Among
other findings, Dr. Ewing concluded that McKnight was not a malingerer and did not exaggerate
her injuries. (Id. at 25). Considering that opinion, and based upon my own observations of
McKnight’s demeanor and assessment of her testimony, I find that McKnight testified credibly
regarding her emotional injuries.
The challenge here is not the determination of how much weight to accord the
testimony of the plaintiff and her expert – they persuasively testified concerning the serious and
persistent emotional injuries she suffered; the challenge is how to apportion the damages from
her injuries to the tortious conduct – false arrest and imprisonment, and battery – for which
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Vasile has been found liable. Significantly, he was not found liable for excessive use of force,
Nicholls was not found liable for false arrest and imprisonment, battery, or excessive use of
force, and neither was held liable for malicious prosecution (a claim dismissed before trial).
These determinations are important because it was Nicholls, not Vasile, who deployed pepper
spray to effect McKnight’s arrest and because, as Dr. Ewing’s testimony makes clear,1 her
subsequent prosecution (which lasted several months and culminated in the dismissal of the
charges pursuant to an adjournment in contemplation of dismissal agreement (see id. at 25))
contributed to her psychological injuries.
McKnight argues in her damages submission that Vasile should be held liable for
her physical injuries arising from her arrest because it was reasonably foreseeable that Nicholls
would use pepper spray to subdue her. (Docket # 94 at 22-24). Although McKnight is entitled
to damages proximately caused by Vasile’s tortious conduct, including those that were
reasonably foreseeable, I disagree that Vasile reasonably should have foreseen that McKnight
would resist his attempt to take her into custody. The record is clear that both McKnight and
Vasile understood his direction to her to put her hands behind her back as a statement that she
was under arrest. (Docket # 87 at 50). Even though that arrest was unlawful for the reasons
explained in my earlier decision, McKnight was not permitted to resist physically, as she did.
See N.Y. Penal Law § 35.27; Rinaldi v. City of New York, 756 F. Supp. 111, 116 (S.D.N.Y.
1990) (citing N.Y. Penal Law § 35.27). In other words, it was reasonable for Vasile to foresee
that McKnight would comply with his direction, not resist – conduct that prompted a fellow
officer to intervene and deploy pepper spray. A contrary rule would lead to the perverse result of
making officers liable for all physical injuries sustained by a person subject to an arrest that was
For example, Dr. Ewing testified, “[T]hose July 3rd and 4th incidents plus the following criminal justice
proceedings against her made her severely depressed.” (Docket # 82 at 134).
1
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subsequently determined to lack probable cause no matter how aggressive or combative that
person was in resisting arrest.
Here, I find that Vasile is properly accountable for damages arising from
McKnight’s handcuffing and placement into and removal from his police car. Those acts are the
physical intrusions onto her body that resulted from her unlawful arrest, and for which Vasile is
legally responsible. The injuries to her arm and from the burst of pepper spray resulted from
Nicholls’s actions in attempting to take her into custody – actions that were not and should not
have been reasonably foreseeable to Vasile.2
With respect to compensatory damages for emotional injuries, Vasile is plainly
responsible for those psychological injuries caused by his unlawful arrest and handcuffing, the
removal of McKnight from her residence in handcuffs, detention in a police car, non-consensual
transportation to the Public Safety Building, and detention overnight in a holding cell. Because
her claim for malicious prosecution was previously dismissed, Vasile is not responsible for any
injuries, or aggravation of other injuries, caused by the criminal prosecution. The Court is
mindful that both McKnight and Dr. Ewing testified about the nature, severity, and effects of her
depression and PTSD caused by both her arrest and prosecution, and that the award of damages
may not be based on injuries caused by her prosecution.
The trial record convincingly establishes that McKnight suffered substantial
emotional injuries as a result of being arrested without cause in the presence of her two teenaged
2
I have already determined that neither officer is liable for the use of excessive force in the arrest. (Docket
# 87 at 48-58). Of course, if that determination had been different, the officer(s) would be liable for her physical
injuries, albeit for damages arising from a different violation (a Section 1983 violation).
In addition, with respect to McKnight’s left arm injuries, the record strongly suggests they were caused
by Nicholls’s attempt to unhook it from the door frame. (See id. at 13). Even if Vasile’s actions had resulted in the
injuries, the record demonstrates that McKnight’s attempt to physically resist rather than submit to arrest caused the
injuries.
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sons on the porch of her own home. Despite having nothing to do with the serious crime under
investigation, and despite having called 911 to report it, McKnight was arrested thirteen seconds
after first speaking to Vasile about her objection to the placement of crime scene tape on her
property. She was handcuffed, publicly removed from her property and placed in a police car at
approximately 11:25 p.m., which remained on the scene for approximately twenty-five minutes.
(See Docket # 87 at 14). She was transported to the Public Safety Building, booked, and held in
a cell until her release the following morning at approximately 10:00 a.m., nearly eleven hours
later. (Docket # 76 at 101). The only testimony offered about the conditions of the cell was that
it did not have a bed. (Id. at 101-102).
In McKnight’s own words, when she was released from jail, she was
“devastated[;] . . . I had just spent the night in jail in my opinion for no reason.” (Docket # 87 at
20). She was especially “devastated that [her] children had to witness” her arrest. (Docket # 76
at 131). She explained that she became “embarrassed, hurt, scared, [and] depressed.” (Docket
# 87 at 21). By contrast to the positive and confident person she was before her arrest, she
became socially withdrawn, fearful of the police, distrustful of others, had nightmares, and drank
more. (Id.). McKnight testified:
When something bad happens to you or something happens to you,
usually the first thing you do is you call the police to help you, and
to have been violated by them in that manner really affected me
because if you can’t call the police[,] who can you call.
(Docket # 76 at 132). McKnight’s marriage failed. (Docket # 87 at 21). She did not seek
mental health treatment and eventually obtained a job. (Id.).
Dr. Ewing testified that the events of July 3, 2010, and the subsequent criminal
proceedings, caused McKnight significant emotional injuries – specifically, “reoccurring
episodes of major depression” and PTSD. (Id. at 22). My earlier Decision and Order
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summarized Dr. Ewing’s testimony about the symptoms that she suffered from each disorder and
how the disorder affected her life:
[With respect to major depressive symptoms,] [Dr. Ewing]
concluded that she suffered “nearly all” of the following symptoms
. . . as a result of defendants’ conduct:
remarkably diminished interest in activities that
previously would have brought joy or satisfaction[,]
[a]ppetite loss . . . , sleep problems, . . . loss of
libido, sexual interest, fatigue[,] [s]ometimes
psychomotor retardation or agitation . . . [,]
[f]eelings of worthlessness and loss of self-esteem,
diminished ability to think and concentrate and in
some cases reoccurring thoughts of death or suicide.
(Tr. 647-48).
With respect to the manifestations of depression in McKnight’s life
after her July 2010 arrest, Dr. Ewing testified that McKnight
experienced feelings of embarrassment, shame, worthlessness, and
diminished self-esteem. (Tr. 648). She developed difficulty
sleeping almost immediately, experienced nightmares, began to
lose her appetite, lost interest in sex, lost interest in socializing
with friends and family, developed excessive worry over her sons
and fear of the police, experienced fatigue, was prone to crying
bouts, and generally felt hopeless. (Tr. 648-54). According to
Ewing, McKnight denied contemplating suicide. (Tr. 649). She
resorted to daily alcohol use to address depression and anxiety,
which developed into alcoholism. (Tr. 650). By the time she met
with Ewing in 2015, she had ceased using alcohol, but
acknowledged that sobriety was a daily struggle. (Tr. 657). She
became so fearful of the police, Ewing testified, that she avoided
going to places where police were likely to be present.
(Tr. 654-55).
According to Ewing, McKnight continued to experience
depression at the time of their meeting in July 2015. (Tr. 650). He
characterized her depression as “not nearly as bad as it had been in
previous years,” but explained that she remained depressed and
still suffered “periodic bouts of major depressive episodes or
disorder.” (Tr. 656). Ewing testified that the reoccurrences were
“becoming further apart and less serious.” (Tr. 669).
As to his diagnosis of PTSD, Dr. Ewing explained:
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[PTSD] involves being subjected to or witnessing a
situation that is either life threatening or potentially
life threatening and thereafter being subjected to a
variety of [specific] symptoms.
(Tr. 658). PTSD symptoms that Ewing indicated McKnight
suffered included “intrusive thoughts on a regular basis,”
nightmares, “efforts to avoid stimuli that remind [her] of the
incident,” social alienation, and hypervigilance “sometimes
bordering on paranoia.” (Tr. 658-59).
With respect to the manifestations of PTSD, Ewing testified that
McKnight is “constantly alert” to the concern that police may show
up or that her sons may be victimized by the police. (Tr. 659). He
explained that she has altered the way in which she lives and now
leads a “very sheltered” life so as to avoid “anything out of the
ordinary.” (Tr. 661). Ewing characterized her emotional PTSD
symptoms as follows:
She sticks to her routine. She’s afraid to go outside
that routine for fear that something like this will
happen again. . . . [P]rior to this time she had very
positive feelings about her future, but since the
events of 2010 she said she feels like her life has
been ruined, but toward the end of the evaluation I
did with her she acknowledged that she does still
have some hope that some day she’ll get over this.
(Tr. 661-62).
(Id. at 22-24).
With respect to McKnight’s mental health prognosis, Dr. Ewing testified that
McKnight needs and would benefit from psychotherapy and medication for depression and
anxiety. (Id. at 24). In his opinion, McKnight likely “would feel subjectively better in terms of
the depression,” but likely would never completely recover from her PTSD. (Id.).
Considered together, McKnight’s and Dr. Ewing’s testimony credibly establishes
that McKnight suffered serious psychological injuries from her confrontation with Vasile,
subsequent arrest, overnight detention in jail, and subsequent prosecution. That she had
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previously been jailed overnight in connection with a dispute with her ex-husband (which
apparently did not result in any conviction) does not undermine or vitiate the emotional distress
and indignity that she experienced as a result of being wrongfully arrested by the police in front
of her children at her own home. McKnight’s claims that this injustice caused her to experience
profound problems trusting others, especially the police, are not only believable, but make sense.
Her decision to call 911 to report a serious criminal incident reflected her belief at the time that
the police could be trusted to help and to respond appropriately. Her arrest – without explanation
or warning – merely minutes after that call, and thirteen seconds after first speaking to Vasile, for
“this shit” understandably humiliated her, angered her, and eviscerated her trust in those she had
appropriately called for help. Her shame, anger and indignity were only intensified by her
custodial detention, first in the backseat of the squad car on the street in front of her house (see
Docket # 77 at 280, 330) and then in a jail cell until the following morning. That experience, it
seems to me, is far different from her earlier experience of being jailed as a result of a dispute
with her ex-husband and does not discredit her claimed emotional injuries.
In sum, I credit McKnight and Dr. Ewing’s testimony that her unlawful arrest and
prosecution caused serious depressive and PTSD symptoms that interfered substantially with her
personal relationships and day-to-day functioning and enjoyment of life. McKnight’s depressive
symptoms have improved over time. At the time of trial, they occurred less frequently and less
intensively, and were likely to continue to improve, especially with treatment. Her PTSD
symptoms have altered the way she lives, making her more reliant on routines, and its symptoms
are unlikely to abate entirely, according to Dr. Ewing. Certainly, the months-long prosecution
perpetuated and intensified McKnight’s emotional injuries and, as previously explained,
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McKnight may not recover damages arising from the prosecution, only the unlawful arrest and
related battery.
In determining an award of compensatory damages, courts may review awards in
other cases involving similar claims and injuries, “bearing in mind that any given judgment
depends on a unique set of facts and circumstances.” See Scala v. Moore McCormack Lines,
Inc., 985 F.2d 680, 684 (2d Cir. 1993). On this record, I find that an award of damages in the
amount of $190,000 for her emotional and deprivation of liberty injuries and $1,000 for her
compensable physical injuries (which excludes the arm injuries and pepper spray injuries for the
reasons explained supra) would fairly compensate McKnight for the damages she suffered as a
result of Vasile’s tortious conduct (false arrest and battery). See, e.g., Colon v. City of New York,
2012 WL 691544, *15 (E.D.N.Y.) (recommending award of compensatory damages in amount
of $50,000 to plaintiff who was falsely arrested, spent 36 hours in custody, and suffered from
major depressive disorder and acute PTSD), report and recommendation adopted by, 2012 WL
686878 (E.D.N.Y. 2012); Martinez v. Port Auth. of N.Y. and N.J., 2005 WL 2143333 at *17-22
(remitting jury award of compensatory damages in amount of $1,000,000 to $360,000 where
plaintiff was falsely arrested, spent 19 hours in jail, and suffered PTSD as a result; noting “false
arrest awards vary widely” and collecting cases); Sulkowska v. City of New York, 129 F. Supp. 2d
274, 304-309 (S.D.N.Y. 2001) (awarding compensatory damages in amount of $275,000 to
plaintiff who was falsely arrested, was detained for approximately 15 hours, suffered minimal
physical injuries relating primarily to the application of handcuffs, and suffered “significant,”
“intense and pervasive” PTSD and depression); see also Levans v. Delta Airlines, Inc., 2016 WL
9447211, *11 (E.D.N.Y. 2016) (collecting cases demonstrating “broad range of awards courts in
this circuit and New York States have sustained where damages result from false arrest followed
11
by limited confinement”), aff’d, 691 F. App’x 678 (2d Cir. 2017); Thomas v. Kelly, 903
F. Supp. 2d 237, 264-65 (S.D.N.Y. 2012) (finding jury’s compensatory damages award of
$125,000 to plaintiff who was falsely arrested, detained for seven hours, and suffered physical
and emotional injuries was “within the wide range of false arrest awards deemed reasonable by
other courts in this Circuit”; collecting cases).
PUNITIVE DAMAGES
Unlike compensatory damages, punitive damages are awarded “to punish and
deter behavior involving moral turpitude.” Marinaccio v. Town of Clarence, 20 N.Y.3d 506, 512
(N.Y. 2013); McDougald v. Garber, 73 N.Y.2d at 254 (“purely punitive damages – that is, those
which have no compensatory purpose – are prohibited unless the harmful conduct is intentional,
malicious, outrageous, or otherwise aggravated”). The standard for imposing punitive damages
is strict, and such damages are warranted “only in exceptional cases.” Marinaccio v. Town of
Clarence, 20 N.Y.3d at 511; see also Gruber v. Craig, 208 A.D.2d 900, 900 (2d Dep’t 1994)
(“punitive damages are allowable in tort cases . . . so long as the very high threshold of moral
culpability is satisfied”) (internal quotation omitted). “[The] [m]ere commission of a tort, even
an intentional tort requiring proof of common law malice, is insufficient; there must be
circumstances of aggravation or outrage, or a fraudulent or evil motive on the part of the
defendant.” Hoeffner v. Orrick, Herrington & Sutcliffe LLP, 85 A.D.3d 457, 458 (1st Dep’t
2011); Marinaccio, 20 N.Y.3d at 511 (“[p]unitive damages may be awarded for conduct that
represents a high degree of immorality and shows such wanton dishonesty as to imply a criminal
indifference to civil obligations”) (intentional quotation omitted). Thus, in tort actions, punitive
damages are justified where the wrongdoing “is intentional or deliberate, has circumstances of
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aggravation or outrage, has a fraudulent or evil motive, or is in such conscious disregard of the
rights of another that it is deemed willful and wanton.” U.S. Trust Corp. v. Newbridge Partners,
LLC, 278 A.D.2d 172, 172 (1st Dep’t 2000); see Dupree v. Giugliano, 20 N.Y.3d 921, 924 (N.Y.
2012) (punitive damages award requires “aggravation or outrage, such as spite or malice, or a
fraudulent or evil motive on the part of the defendant, or such a conscious disregard of the
interests of others that the conduct may be called willful or wanton”) (internal quotations
omitted).
While the focus of compensatory damages is on the plaintiff and the
determination of an amount adequate to compensate her fully and fairly for legally-cognizable
damages or injuries caused by the defendant, the focus of punitive damages is on the tortfeasor
defendant and the nature of his tortious conduct. The more egregious or conscience-shocking the
behavior, the more justified an award of punitive damages will be. This different focus – the
former on the injuries to the plaintiff and the need for compensation, the latter on the behavior of
the defendant and the need for punishment and deterrence – explains why some cases warrant an
award of substantial compensatory damages but no award of punitive damages. See, e.g., Rivera
v. City of New York, 40 A.D.3d 334, 344 (1st Dep’t 2007) (“even assuming defendants’ liability
[on false arrest claim], no reasonable view of the evidence supports a finding that defendants
were ‘motivated by actual malice or acted in reckless disregard of’ plaintiff’s rights”) (quoting
Nardelli v. Stamberg, 44 N.Y.2d 500, 503 (N.Y. 1978)), lv. dismissed, 16 N.Y.3d 782 (N.Y.
2011)); Byrd v. N.Y.C. Transit Auth., 172 A.D.2d 579, 581 (2d Dep’t 1991) (denying punitive
damages where “under no reasonable view of the evidence can it be concluded that [defendants]
. . . acted maliciously in connection with the plaintiff’s arrest and imprisonment”), lv. denied, 80
N.Y.2d 751 (N.Y. 1992); Guion v. Associated Dry Goods Corp., 56 A.D.2d 798, 798 (1st Dep’t
13
1977) (reversing award of punitive damages; although jury found that “defendants did not
proceed in a reasonable manner in detaining the plaintiff and charging her . . . [,] [there was] no
support in the record for the requisite proof of malice or wanton and reckless conduct”), aff’d, 43
N.Y.2d 876 (N.Y. 1978); Selden v. City of Albany, 50 A.D.2d 975, 975 (3d Dep’t 1975)
(reversing punitive damages award on claim for false arrest where there was “an absence of
proof that [the officer] acted in a willful, wanton or malicious manner toward plaintiff”). That is
the case here.
First, the trial record permits no doubt, and I have previously found, that Vasile
was engaged in authorized law enforcement duties when he first encountered McKnight on her
property. (Docket # 87 at 32). He was the first officer to respond to the scene of a stabbing and
potential shooting. (Id. at 4). When he arrived shortly after 11:15 p.m., the scene was noisy and
chaotic; fifteen to twenty people were near or on McKnight’s property; some were yelling at
each other; and, a victim was lying on the sidewalk in front of the house next door to
McKnight’s, refusing to cooperate, but in apparent need of medical attention. (Id. at 4-5).
Vasile’s supervisor, Nicholls, arrived a few minutes later and directed Vasile to secure the crime
scene. (Id. at 5). That direction complied with the written policies and procedures of the
Rochester Police Department (“RPD”) as reflected in RPD General Order 401, which provided
that officers, upon arrival at a crime scene, should “provide aid and comfort to the victim(s),
observe all conditions, events, and remarks and secure the scene to maintain and protect physical
evidence, utilizing yellow crime scene tape.” (Id. at 5-6).
Nicholls testified that the use of tape to designate a crime scene serves several
important purposes, among them the protection of evidence and the prevention of entry into or
away from the scene. (Id. at 6). Based upon his experience, Nicholls also explained, “It
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generally calms things down and people start to understand that we’re there and starting to take
control of what’s going on.” (Id.). Significantly, Nicholls also explained that the practice of
RPD was to affix crime scene tape to an area larger than the location of the criminal occurrence;
in a residential area, the practice was to attach the tape to “one house at a minimum to either side
of where we think the scene is.” (Id.).
McKnight’s property at 232 Pierpont Street was adjacent to the property where
the stabbing occurred (id. at 2), and Vasile was thus acting in accordance with RPD policy and
his supervisor’s direction by fastening the tape to McKnight’s property to designate it as a crime
scene boundary. Vasile testified that he perceived an urgent need to secure the crime scene
because of the large number of people present. (Id. at 7). Indeed, in the moments before she
first spoke with Vasile, McKnight herself was concerned with a group of teenagers who had
walked onto her property and had to call to them loudly several times to get them to move. (Id.
at 6).
The trial evidence thus demonstrates that when Vasile first encountered
McKnight, he was engaging in a law enforcement function at the direction of his supervisor that
was sufficiently important to be embodied in RPD’s written policies and orders. Although the
use of crime scene tape may not appear important to an average person, Nicholls and Vasile both
testified based on their experience that the demarcation of a crime scene serves significant law
enforcement purposes, especially where the scene is volatile and involves the presence of many
individuals. That was the scene they both encountered when they arrived.
There is no evidence that Vasile targeted or even noticed McKnight before he
began to affix the tape to her porch railing. (See id. at 8). Rather, the credible evidence suggests
that he was focused on his responsibility to mark the crime scene in accordance with RPD
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practice using the physical structures available to him. That led him to determine to run the tape
west from McKnight’s porch railing (at 232) to a large tree in the apron near the bottom of the
stairs in front of 234 and then north to another spot likely to include 236. (Id. at 7). Vasile was
beginning to run the tape along the boundaries he had determined by tying the tape to
McKnight’s porch railing when McKnight spoke to him. (Id. at 7-8). She said, “Officer, you
cannot put that yellow tape in my yard.” (Id. at 9). The rest of the thirteen-second interaction
culminating in her arrest is described in detail in my earlier decision.
The law entitles Vasile to perform his governmental functions without obstruction
from others. It does not, however, entitle him to do so without being questioned. That a
homeowner who had no involvement in a crime, particularly a crime that was not even
committed on her property, might not want crime scene tape on her property is understandable.
That she might not understand the reasons for the practice of designating boundaries larger than
the actual location of the crime is also unsurprising. McKnight’s first communication to Vasile
simply reflects that reality: police actions, however routine and logical they may be to members
of law enforcement, may confound an average citizen. When that happens, the citizen does not
commit a crime by questioning the action, or generally by verbally objecting to it, especially
where the action involves her own property. When and how to respond to those questions or
objections is a matter of judgment for the officer involved, but one that is of course bounded by
law.
In this case, Vasile did not explain to McKnight that tape is customarily affixed to
properties adjoining the property where the crime occurred and does not mean a crime occurred
there. Rather, he dismissed her statement that the crime “didn’t happen here[;] it happen[ed]
there,” with a disrespectful, “I don’t care.” (Id. at 9-10). Her response – “Well, this is not gonna
16
stay here all night,” accompanied by either motioning or pointing in the direction of the tape (id.
at 7-10) – prompted Vasile’s immediate direction to put her hands behind her back and profane
utterance, “I’ve had enough of this shit” (id. at 10). Undoubtedly, the exercise of better
judgment by Vasile could have averted a precipitous arrest, and one that was subsequently
determined to be unlawful.
Of course, punitive damages are not awarded to punish or deter the exercise of
bad judgment or disrespectful behavior. They are reserved for those instances in which the
defendant’s wrongful conduct – here, Vasile’s decision to arrest McKnight for obstructing
governmental administration without the requisite physical conduct – is characterized by malice,
evil intent, or “such a conscious and deliberate disregard of the interests of others that the
conduct – may be called willful or wanton.” Marinaccio, 20 N.Y.3d at 511 (quoting Dupree v.
Giugliano, 20 N.Y.3d at 924).
Contrary to McKnight’s contentions (Docket # 94 at 10, 22), the record does not
support the finding that Vasile was motivated by or acted with malice towards McKnight. Her
argument that his treatment of her was motivated by racial animus (id. at 7-8, 40-41) lacks
evidentiary support. So too does her contention that Vasile deliberately left her in his squad car
for approximately twenty-five minutes following her arrest to “maliciously tortur[e]” her while
he “hung around doing nothing.” (Id. at 24-25). There is absolutely nothing in the record to
suggest that Vasile deliberately sat idle before taking her to the Public Safety Building for the
purpose of increasing her suffering from the effects of the pepper spray. Although Vasile acted
precipitously and indeed unlawfully in arresting McKnight, and treated her with disrespect
during their brief encounter, I cannot find that his behavior was marked by the kind of “moral
turpitude” that justifies an award of punitive damages. See Marinaccio, 20 N.Y.3d at 512.
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CONCLUSION
For the reasons stated above, I find that an award of compensatory damages is
warranted, and the Clerk of the Court is directed to enter judgment for plaintiff Miriam
McKnight against defendant Gregory Vasile3 in the total amount of $191,000 ($190,000 for her
emotional and deprivation of liberty injuries and $1,000 for her compensable physical injuries)
with prejudgment interest to be awarded at the rate of 9% per annum from March 30, 2017,
through the entry of this judgment, with any post-judgment interest to be calculated pursuant to
28 U.S.C. § 1961. I further find that punitive damages are not justified.
IT IS SO ORDERED.
s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
September 27, 2018
3
Despite the fact that the City of Rochester was dismissed from the action (Docket # 58), McKnight
surprisingly requests that “any [j]udgment the Court imposes for compensatory damages be imposed on the
institutional defendant[] as well as on Vasile.” (Docket # 94 at 41). That request is denied.
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