1 1 9

- 4281

- c v ( L ) Thomas Jennings v. Yurkiw , et al

.



## In the 1 

# United States Court of Appeals 2 

## For the Second Circuit 3

_________________________ 4

5 August Term, 20 20 6

7

No s . 1 9

- 4281

- c v ( L e a d )

, 1 9

- 4 3 7 0

- c v ( X A P ) 8

9 THOMAS JENNINGS

, 10

11 Plaintiff

- Appellee

- Cross

- Appellant

, 12

v. 13

14

POLICE OFFICERS ANDREW YURKIW

, AMBER L A GRANDIER, JOSEPH 15

SOLOMITO

, 16

17 Defendant s

- Appellant s

- Cross

- Appellees

, 18

19 CITY OF NEW YORK, OFFICER JOHN DOE 3, SERGEANT SHAUN 20 BROWN, SHIELD NO. 875, IN THEIR INDIVIDUAL AND OFFICIAL 21 CAPACITIES AS EMPLOYEES OF THE CITY OF NEW YORK, 22

23

D e f

e n d a n t s

. 24

25

_______________________________ 26

27 Appeal from the United States District Court 28

for the Eastern District of New York 29

No. 14

- cv

- 6377 , Steven M. Gold, Magistrate Judge, Presiding. 30 Argued: February 9, 2021; Decided: November 1 7

, 2021 31

322 Before: 1 PARKER, LOHIER

, and MENASHI

, Circuit Judges

. 2

3

Defendant s

- Appellants Andrew Yurkiw, Amber LaGrandier, and Joseph 4

Solomito , officer s of the New York City Police Department, appeal from a 5 judgment of the United States District Court for the Eastern District of New York 6 ( Gold

, M.J. ) . The judgment was entered pursuant to a jury verdict and a retrial 7 on damages , awarding $90,000 in compensato ry damages and $355,000 in 8 punitive damages to Plaintiff

- Appellee Thomas Jennings on his claims against 9

the o fficers for excessive force. The o fficers contend that the jury’s $355,000 10 punitive damages award should be deemed so high as to shock the judicial 11

conscience and that the district court abused its discretion in uphold ing it

. 12 Jennings , for his part, cross

- appeals the district court’s remittitur after the first 13

trial of the compensatory damages a ward from $500,000 to $115,000 and 14 remittitur of the punitive damages award from $2,500,000 to $140,000

. 15

We conclude that the district court did not abuse its discretion in 16 upholding the jury’s $355,000 punitive damages award after retrial and that the 17 damages were reasonable in light of the o fficers’ misconduct. 18

On Jennings’s cross

- appeal, we conclude that the district court did not 19 abuse its discretion in remitting the compensatory damage s award after the first 20 trial to $115,000. The damages jury’s compensatory award of $90,000 after retrial 21

stand s

. 22

23

A FFIRMED 24

____________________________ 25

26
J ESSE A

. T OWNSEND

, 27

Assistant Corporation Counsel

, 28 Richard Dearing, 29 Devin Slack, 30 for James E

. Johnson

, 31 Corporation Counsel of the C ity of New York

, 32 for Defendants

- Appell ants

- Cross

- Appellees

. 33

343 S COTT A

. K ORENBAUM 1

New York, NY ; 2 Amy Rameau

, 3 The Rameau Law Firm, Brooklyn, NY; 4 Michael Lumer, 5 Lumer Law Group, New York, NY 6 for Plaintiff

- Appellee

- Cross Appellant

. 7

8

______________________________ 9

B ARRINGTON D. P ARKER

, Circuit Judge : 10

Thomas Jennings was arrested on April 23, 2014, and charged with the 11

felony of second

- degree assault, among other things, after the arresting officers 12

falsely claimed that Jennings struck one of them multiple times while resisting 13

arrest arising from a domestic dispute. Jenni ngs was held in custody until May 2, 14

when he was released on bail from Rikers Island. All charges were later 15

dismissed on motion of the district attorney. 16

Jennings brought suit under 42 U.S.C. § 1983 against New York City Police 17

Officers Andrew Yurkiw, Amber LaGrandier, and Joseph Solomito

, alleging that 18

the officers subjected him to unprovoked, excessive force , and then took 19

substantial coordinated steps to cover up their misconduct

. After two trials in the 20

E astern District of New York before Magistrate Judge Steven M. Gold (the 21

second focused exclusively on damages)

, two separate juries awarded Jennings 22

substantial punitive damages. 23

In the initial trial the jury returned a verdict for Jennings finding the 24

off icers jointly and severally liable for $500,000 in compensatory damages . The 254 jury awarded punitive damages of $1,000,000 against Yurkiw and $750,000 each 1

against LaGrandier and Solomito, for a total of $2,500,000 in punitive damages

. 2

The defendants moved for remittitur

. The court granted the motion and 3

ordered a new trial on damages unless Jennings accepted remittitur of the 4

compensatory damages from $500,000 to $115,000 , the punitive damages against 5

Yurkiw from $1,000,000 to $120,000, and the punitive damages against 6

LaGrandier and Solomito from $750,000 to $10,000 each. Jennings declined 7

remittitur , and the court conducted a retrial on damages

. 8

The second jury returned a verdict finding the officers jointly and severally 9

liable for $9 0,000 in compensatory damages . The jury also awarded punitive 10

damages of $250,000 against Yurkiw, $75,000 against LaGrandier, and $30,000 11

against Solomito, for a total of $355,000. Defendants again moved for remittitur 12

and this time the district court deni ed the motion

. On this appeal, the o fficers 13

claim that the second jury’s punitive damage s award was too high and that the 14

district court abused its discretion in failing to remit it. For the reasons that 15

follow, we affirm

. 16

On his cross

- appeal, Jennings challenges the district court’s remittitur of 17

his compensatory damages award from $500,000 to $115,000. He concedes that 18

the first jury’s $2.5 million punitive damage s award warranted some remittitur 19

but contends that the c ourt erred in remitting the first jury’s punitive damage s 20

award to $140,000 and its compensatory damages award to $115,000. For the 21

reasons that follow, we affirm the district court’s remittitur following the first 22

trial. 235 BACKGROUND 1 1

At the first trial, the jury heard testimony that o n April 23, 2014, in 2

Brooklyn, NY

, Jennings picked up his three

- year

- old son from day care and went 3

to the apartment of his son’s mother, Daquanna Henry

, to retrieve some of his 4

son’s belongings

. Jennings testified that an altercation with Henry ensued and 5

that he left the apartment, went to the lobby of the building, and called 911 for 6

assistance

. 7

NYPD officers Yurkiw, Solomito, and LaGrandier responded to the scene. 8

LaGrandier entered Henry’s apartment while Yurkiw and Solomito waited 9

outside with Jenning s, who was h olding his son

. Jennings testified that while he 10

spoke with Yurkiw

, LaGrandier emerged from the apartment and snatche d 11

Jennings’s son from his arms while the child cried and attempted to reconnect 12

with his father

. LaGrandier then grabbed Jennings by the clothing and pinned 13

him against the wall, at which point Yurkiw, without warning, punched Jennings 14

twice in the face . Jennings testified that the blows were sufficiently hard that he 15

fell to the ground and “was just out of it from there

. ” Joint Appendix (“ J. App’x ”) 16

at 5 6 1

– 6 2

. Instead of interven ing to stop the attack

, LaGrandier and Solomito 17

joined Yurkiw in continu ing the beat ing. Jennings testified that he fell in and out 18

of consciousness as LaGrandier and Yurkiw dragged him from the apartment 19

through the lobby and into a police car

. 20

1 We view the facts in the light most favorable to Jennings , the prevailing party, and view all evidence in the light most favorable to sustaining the jury’s verdict. See Jacques v. DiMarzio, Inc. , 386 F.3d 192, 195 (2d Cir. 2004); Payne v. Jones , 711 F.3d 85, 98

– 9 9 n.10 (2d Cir. 2013).6 In the immediate aftermath of the arrest, the o fficers began fabricating a 1

sharply different narrative

. In reports to others, in official paperwork

, and then at 2

trial, t he y claimed that in attempting to evade arrest and flee

, Jennings assaulted 3

Yurkiw

. Yurkiw testified that Jennings took off at a “full sprint” down the 4

apartment hallway after being told he was under arrest , and that while 5

attempting to flee

, Jennings turned around and punched Yurkiw i n the head, 6

face

, and the side of his body. J. App’x at 190

. Solomito offered a slightly 7

di fferent account of what occurred. He testified that Yurkiw grabbed Jennings by 8

the wrist

, that “ Jennings turned and punched Officer Yurkiw on the top of the 9

head

, ” and then took o f f running while “pulling [Yurkiw] down the hallway.” J. 10

App’x at 368. Solomi to then testified that Yurkiw fell

, and that he (Solomito) had 11

to jump over him (Yurkiw) to tackle Jennings to the ground before arresting him

. 12

LaGrandier, for her part

, offered ambiguous testimony. At one point, she 13

testified that she was “running beside s [sic] Thomas Jennings” while he 14

attempted to flee

. J. App’x at 481. S he also testified that she was beside Yurkiw 15

and ultimately that she didn’t see who threw Jennings to the ground

. 16

The o fficers’ credibility was sharply called into question by video evidence 17

containing footage of Yurkiw and LaGrandier dragging Jennings’s limp body 18

through the lobby of the building and outside to the police vehicle . This evidence 19

tended to corroborate Jennings’s testimony that

, as a consequence of the beating, 20

he was in and out of conscio usness and unable to walk on his own

. 21

Jennings testified that he had visible injuries and requested medical 22

assistance

, but that these requests were ignored . Jennings was transported to the 237 81 st precinct. After he had spent time in a cell an officer event ually called for 1

medical assistance

, and Jennings was taken by ambulance to Woodhull Hospital

. 2

After examining Jennings at Woodhull on the day of his arrest, a doctor 3

determined that Jennings had physical injuries including a right eye hematoma, 4

several fracture s in both nasal walls , a deviated nasal septum, and an inflamed 5

ethmoid sinus

. Jennings was also seen by a medical professional two days later 6

on Rikers Island who confirmed those injuries and further testified that in 7

addition to Jennings’ s nasal fracture, there was bruising on the area of Jennings’s 8

right eye. This testimony tended to show that his bruising was sufficiently 9

localized that it came from a fist , and not from a fall as Yurkiw had testified

. 10

The jury heard additional testimony concerning the o fficers’ coverup of the 11

beating. A fter the arrest, Officer Pelocka Binns

— who had no personal 12

knowledge of the arrest

— prepared an arrest report based on information 13

provided by Yurkiw that included allegations that Jennings had assaulted hi m. 14

In support of this narrative, Yurkiw took a picture of what he claimed was a 15

bump at the top of his head caused by Jennings ’s punches

. H e acknowledged 16

that he took the p hotograph for the purposes of prosecuting Jennings for the 17

assault , which requires physical injury as an element

. Yurkiw testified that he 18

went to Wyckoff Hospital to be treated fo r th e bump

. The treating physician’s 19

assistant recorded that Yurkiw ’s bump was “non

- tender.” J. App’x at 472 . In 20

other words, it did no t hurt. During examination

, a physician’s assistant 21

observed and documented visible bruising on Yurkiw’s right index and middle 22

finger knuckles

, injuries that were consistent with his having thrown punches. 23

Yurkiw , however, had not taken any photos of this bruising. In fact, Yurkiw

— 248 contrary to contemporaneous medical documentation

— testified that he “didn’t 1

have any bruising [on his knuckles] at that time.” J. App’x at 125. 2

At the close of trial, the jury answered special interrogatories

. Despite the 3

o fficers’ extensive testimony to the contrary, the jury found that at no point 4

before or after the assault did Jennings attempt to flee from any of the of ficers or 5

strike Yurkiw. The jury answered “No” to the question, “ Do you find by a 6

preponderance of the evidence that plaintiff Jennings attempted to flee from 7

defendants or resist arrest?” J

. App’x at 1199 . The jury also answered “No” to the 8

question “ Do you find by a preponderance of the evidence that plaintiff Jennings 9

punched or attempted to punch defendant Yurkiw?” J

. App’x at 1200. 10

T hat jury awarded Jennings substantial compensatory and punitive 11

damages

. The officers moved for remittitur or a retrial

, and Magistrate Judge 12

Gold granted the motion for remittitur . The court concluded that LaGrandier and 13

Solomito were less culpable than Yurkiw because “LaGrandier and Solomito 14

used force against [Jennings] only after Yurkiw did, and the reprehensibility of 15

their conduct i s mitigated by the likelihood that their motivation included a 16

desire to assist a fellow officer.” Special Appendix (“ Sp. App’x ”) at 62. Jennings 17

rejected the remittitur and elected for a new trial on damages. 18

At the re trial , the district court determined that

, in light of the jury’s 19

answers to the special interrogatories and its decision to award punitive 20

damages

, the jury would be asked only to determine the amount of damages but 21

not to retry liability

. We see no reason to disturb this ruling. 22

At the damages trial, Yurkiw was the only one of the o fficers who elected 23

to testif y , and more details about what occurred after the arrest emerged

. T he 249 arrest report containing information supplied by Yurkiw was received in 1

evidence

. The report detailed that “[Yurkiw] states that while [e] ffecting an arrest 2

[Jennings] punched [Yurkiw] in the head causing swelling, redness and pain.” 3

Supplemental Appendix (“ Supp. App’x ”) at 1

. On the witness stand, Yurkiw 4

denied reporting that no force was used in the arrest ; but the arrest report stated 5

that the o fficers had used no force. It was uncontroverted that the officer who 6

prepared the arrest report did so on the basis of information received from 7

Yurkiw and that Yurkiw knew that this acc ount would be forwarded to the 8

District Attorney’s office for the purpose of prosecuting Jennings for the felony 9

assault

. 10

Jennings offered additional testimony about the o fficers’ conduct following 11

his arrest. He testified that after the beating, he asked Yurkiw and Solomito for 12

medical attention

. Yurkiw acknowledged that it was his “obligation as a police 13

officer to request EMS, and if [he] thought [Jennings’s injury] was that serious 14

enough [sic]

, Interfaith [Hospital] [was] around the corner.” J. App’x at 1719. 15

I nstead of being given medical attention

, Jennings was brought to the police 16

station . He was then placed in a cell and chained to a bar where he was subjected 17

to insults from Yurkiw

, who stood outside the cell and taunted him. Eventually, 18

Jennings was taken from the police precinct to Woodhull Hospital by ambulance

. 19

T he jury returned a verdict awarding Jennings “(a) $90,000 in total 20

compensatory damages, jointly and severally against all three defendants, (b) 21

$250,000 in punitive damages against defendant Yurkiw, (c) $75,000 in punitive 22

damages against defendant LaGrandier, and (d) $30,000 in punitive damages 2310 against defendant Solomit o, for a total of $355,000 in punitive damages. ” Special 1

App’x at 12

. 2

The o fficers again moved for remittitur of the punitive damages award. In 3

denying their motion, t he district c ourt explained that: 4

Having heard the evidence presented in support of plaintiff’s claims 5 at both the original trial and the retrial on damages, and having had 6 the benefit of observing the verdicts returned by two juries after what 7 presumably were careful deliberations, I cann ot say that the second 8 trial jury’s punitive damages award is so high as to shock the judicial 9 conscience and constitute a denial of justice. 10

Sp. App’x at 17

– 18 (quotation marks omitted)

. 2 11

T his appeal and cross

- appeal followed. 12

DISCUSSION 13

I 14

A. Legal Standards 15

We review a district court’s decision on a motion to remit punitive 16

damages for abuse of discretion

. See Lee v. Edwards , 101 F.3d 805, 808 (2d Cir. 17

1996)

. The discretion enjoyed by trial courts in remitting damages is “ relatively 18

narrow

. ” Payne , 711 F.3d at 100. That is because the ultimate question is whether 19

the award “shock [ s ] the judicial conscience” or amounts to a miscarriage of 20

justice. Ismail v. Cohen , 899 F.2d 183, 186 (2d Cir. 1990). When, as here, a trial 21

2 In denying remittitur, the district court also observed

— in sharp distinction to its

initial characterizations of LaGrandier’s role at the first trial

— that the evidence from the second trial supported the inference that “LaGrandier was the first of the officers to become physically aggressive with [ Plaintiff]” and that “the jury may even have inferred that LaGrandier pinned plaintiff against the wall in anticipation of Yurkiw’s blows.” Sp. App’x at 18.11 judge refuses to disturb a jury’s award of a particular amount of damages

, the 1

two entities entitled to deference

— the judge and jury

— point in the same 2

direction. See Earl v. Bouchard Transp. Co.

, 917 F.2d 1320, 1329 (2d Cir. 1990)

. Both 3

have observe d the witnesses and both have consider ed t he evidence in the 4

context of a trial involving live witnesses and cross examination. 5

Moreover, d etermining the amount of damages is a quintessential 6

responsibility of juries

. Here, t wo separate juries concluded that substantial 7

punitive damages were appropriate . No officer contends that the jury was not 8

properly instructed or that any irregularity occurred in the district court’s 9

management of the jury. And no officer has shown that t he verdict from the 10

second trial shocks the con science or constitutes a miscarriage of justice

. 11

B. Review of the Punitive Damages Award 12

We review a jury’s punitive damages award in accordance with BMW of 13

North America, Inc. v. Gore , 517 U.S. 559 (1996) . We consider: “(1) degree of 14

reprehensibility of the defendant’s conduct, (2) relationship of the punitive 15

damages to the compensatory damages, and (3) criminal and civil penalties 16

imposed by the state’s law for the misconduct in question. ” Payne , 711 F.3d at 17

101. While these guideposts are non

- exhaustive

, they assist in determin ing 18

whether a defendant had adequate notice of the magnitude of the sanction s to 19

which his misconduct might expose him. See Gore , 517 U.S. at 574

– 75 ; see also id. 20

at 606 (Scalia, J

. , dissenting) (observing that “the Court nowhere says that these 21

three ‘guideposts’ are the only guideposts; indeed, it makes very clear that they 22

are not” )

. In reviewing punitive damage s awards, courts in this Circuit often 2312 compare the award to rulings on awards in other cases. See Payne , 711 F.3d at 1

104. 2

1. Degree of Reprehensibility 3

In Gore , the Supreme Court noted that reprehensibility is “perhaps the 4

most important” consideration in assessing the reasonableness of a n award of 5

punitive damage s. 517 U.S. at 575

. There , the Court identified certain 6

“aggravating factors” that are “associated with particularly reprehensible 7

conduct” and contribute to the sense that “some wrongs are more blameworthy 8

than others.” Id . at 575

– 76. Those a ggravating factors include : (1) whethe r a 9

defendant ’ s conduct was marked by violence or presented a threat of violence, 10

(2) whether a defendant’s conduct evinced trickery or deceit as opposed to mere 11

negligence, and (3) whether the record supports a finding of intentional malice. 12

Id

. 13

These fac tors all weigh against the o fficers. T he o fficers attempt to 14

diminish the seriousness of the ir misconduct by characterizing the ir unprovoked 15

beating as “a few minutes of violence against [Jennings] ,” Officer Br. at 24 . B ut

, 16

“a few minutes of violenc e ” is not a trivial matter. The jury heard testimony that 17

Jennings received an unprovoked beating at the hands of the officers. It heard 18

that LaGrandier snatched Jennings’s three

- year

- old son from his arms, grabbed 19

Jennings and pinned him against the wall

. Yurkiw then struck Jennings in the 20

face with such force that he fell to the ground , at which point he began 21

experiencing “all kind of blows coming from everywhere.” J

. App’x at 563. T he 22

jury heard testimony from Jennings t hat he n ever threw punches at any of the 23

officers, attempted to flee

, or otherwise resist ed arrest. Even though Jennings had 2413 visible injuries

, he was brought straight to the police precinct, placed in a cell, 1

chained to a bar, and denied the medi c al attent ion he requested . As the trial 2

court observed: 3

The evidence was sufficient to support a finding that Defendant 4 Yurkiw delivered two unprovoked and violent punches that 5 rendered Plaintiff semiconscious, and that all Defendants then 6 engaged in administering further strikes to an already subdued 7 arrestee. Under the reprehensibility analysis, the jury could also have 8 reasonably considered the fact that Plaintiff had called for help as the 9 victim of an assault, only to find himself subjected to excessive force 10 by the responding officers. 11

Sp

. App’x at 56

– 57

. 12

Further, the jury could rightly have determined and apparently did 13

determine that the excessive force was made the more reprehensible because 14

none of the officers intervened to stop the attack, as each was required to do. We 15

have been clear that “a law enforcement officer has an affirmative duty to 16

intercede on the be half of a citizen whose constitutional rights are being violated 17

in his presence by other officers.” O’Neill v. Krzeminski , 839 F.2d 9, 11 (2d Cir. 18

1988); see also DiSorbo v. Hoy , 343 F.3d 172, 189 (2d Cir. 2003) (recognizing that 19

punitive damages may be h igher where the misconduct involved several 20

officers). 21

The reprehensible nature of the officers’ conduct is underscored by the 22

elaborate steps they took to cover up their misconduct. The jury heard and was 23

entitled to consider a record that included falsified charging documents, false 24

accounts of the beating, faked or exaggerated injury, and perjured trial 2514 testimony

. 3 See Gore , 517 U.S. at 579 (noting that factfinders may look to whet her 1

the record “discloses

. . . deliberate false statements, acts of affirmative 2

misconduct, or concealment of evidence of improper motiv e”). 3

2. Ratio of Actual Harm to the Punitive Award 4

Next, Gore directs reviewing courts to ask “ whether there is a reasonable 5

relationship between the punitive damages award and the harm likely to result 6

from the defendant ’ s conduct as well as the harm that actually has occurred.” 7

DiSorbo

, 343 F.3d at 187. While labeled a ratio, the reasonableness determination 8

“ does not entail a simple mathematical formula, as there may be cases where a 9

particularly egregious act has resulted in only a small amount of economic 10

damages.” Id

. (quotation marks omitted). Given the constellation of inte ntional 11

misbehavior by the officers, we see nothing untoward about the 1:4 ratio 12

3 The officers’ contention that “alleged behavior outside of the liability findings” is

irrelevan t to the determination of punitive damages is a b ad argument extracted from

mischaracterizations of our caselaw. For example, the officers cit e State Farm Mut. Auto Ins. Co. v. Campbell , 538 U.S. 408 (2003) for the proposition that “a punitive award cannot rest on conduct independent from the acts upon which liability was premised,” Officer Reply Br. at 7 (quotation marks omitted)

. Yet t hat is not the rule from State Farm

. In State Farm , the Supreme Court overturned the Utah Supreme Court’s impositi on of a punitive damages award where “State Farm was being condemned for its nationwide policies rather than for the conduct directed toward the [plaintiff s ].” 538

U.S. at 420. The Court was concerned that the Utah courts “adjudicate[d] the merits of

other parties’ hypothetical claims against [State Farm],” id. at 423 (emphasis added) , and that the company was punished “for conduct that may have been lawful where it

occurred

, ” i d. at 421. Even so, the Court still found that this evidence of potential harm to third parties

— clearly outside the liability findings

— may have been relevant if it had “a nexus to the specific harm suffered by the plaintiff.” Id . at 422. And here, there is no credible contention that any of the misconduct that was before the jury was directed at anyone but Jennings. The officers’ misconduct following the arrest clearly had a nexus

to their use of excessive force and supports punitive damages

.15 between compensatory and punitive damages. Johnson v. Nextel Commc ’ ns Inc.

, 1

780 F.3d 128, 149 (2d Cir. 2015 ) ( “[T] here is no rigid upper limit on a ratio of 2

punitive damages to compensatory damages

. . . ” ). 3

Even where compensatory damages are substantial

, punitive damages 4

award s that are a multiple higher may be warranted because of the deterrent 5

function of punitive damages

. 4 “ T he purpose of § 1983 is not only to provide 6

compensation to the victims of past abuses, but to serve as a deterrent against 7

future constitutional deprivations, as well.” Ciraolo v. City of New York , 216 F.3d 8

236, 242 (2d Cir. 2000) (Calabresi, J., concurring) ; s ee City of Newport v. Fact 9

Concerts, Inc.

, 453 U.S. 248, 266

– 6 8 (1981) (“[T] he deterrence of future abuses of 10

power by persons acting under color of state law is an important purpose of 11

§ 1983 .”)

. Because of this deterrent function, extra

- compensatory damages are 12

warranted where the mis conduct was designed to escape detection. 5 “W here the 13

injurer makes active efforts to conceal the harm, [underdeterrence] is of course 14

4 The jury was properly instructed that in decid ing whether to impose punitive damages and the proper quantum of damages, it should consider “whether punitive damages are likely to deter or prevent others from performing wrongful acts like the

ones , one or more of the defendants

, in this case you find t o have committed” and “the degree to which an award of one sum or another will deter the defendant or persons like him or her from committing wrongful acts in the future.” J

. App’x at 884.

5 As Judge Richard Posner observed in Kemezy v. Peters

, 79 F.3d 33 (7th Cir. 1996) :
When a tortious act is concealable, a judgment equal to the harm done by

the act will underdeter. Suppose a person who goes around assaulting other people is caught only half the time. Then in comparing the costs, in the form

of an ticipated damages, of the assaults with the benefits to him, he will discount the costs (but not the benefits, because they are realized in every assault) by 50 percent , and so in deciding whether to commit the next assault he will not be confronted by the full social cost of his activity.

Id. at 35

.16 exacerbated

. ” Ciraolo, 216 F.3d at 24 3 (Calabresi, J., concurring)

. Give n the 1

extensive misconduct directed at escaping liability

, the deterrent capacity of the 2

1:4 ratio presented here passes muster. 3

3. Sanctions for Comparable Conduct 4

Gore next directs us to compare the punitive damages to “civil or criminal 5

penalties that could be imposed for comparable misconduct.” 517 U.S. at 583. The 6

court below observed that the comparable criminal provision for the misconduct 7

that the first jury found would be assaul t in the third degree, a misdemeanor 8

punishing reckless or intentional physical injury of another person. The 9

maximum penalty for this crime would have been one year of imprisonment and 10

a $1,000 fine , which “strongly supports the imposition of some punitiv e award, 11

but it tells very little about whether the particular award was excessive. ” Payne

, 12

711 F.3d at 10 4

. Based on this reference to state law, the o fficers argue that 13

“[t ] here is no analogous provision of criminal law that gave the officers notice 14

that they were putting at risk up to several years’ worth of pay (in the case of the 15

award against Officer Yurkiw).” Officer Br. at 33. 16

Yet e ach of the officers knew full well th at their misconduct could expose 17

them not only to state sanctions but to federal criminal sanctions a s well

. The 18

N.Y.P.D. Use of Force Guidelines put the officers on notice that: “ both federal 19

and state laws provide for criminal sanctions and civil liability against uniformed 20

members of the service

, when force is deemed excessive, wrongful or improperly 2117 appl ied. ” N.Y.P.D

. Patrol Guide, Use of Force Guidelines § 203

- 11 (Effective 1

08/01/1 3). 6 2

W here a jury imposes punitive damages for a violation of § 1983, the 3

penalties imposed under f ederal criminal law offer a useful comparison. Section 4

242 provides : 5

Whoever, under color of any law

. . . subjects any person

. . . to the 6 deprivation of any rights, privileges, or immunities secured or 7 protected by the Constitution or laws of the United States

. . . and if 8 bodily injury results from the acts committed in violation of this 9

section

. . . shall be fined under this title or imprisoned not more than 10 ten years, or both

. . . . 11

18 U.S.C. § 242. Congress has authorized a fine for violation of this section of up 12

to $250,000. 18 U.S.C. § 3571(b)(3). Section 242 provides a reference point to 13

evaluate excessive force awards against individuals acting under color of law. 14

This provision also satisfies the notice concerns raised by Gore, as the 15

officer s were un questionably on notice that abuse of power could lead to a term 16

of imprisonment as well as to a substantial fine. If anything, these penalties 17

understate the notice the officers received

. As we explained in Lee

, “training as a 18

police officer [give s officers ] notice as to the gravity of misconduct under color of 19

[their] official authority, as well as notice that such misconduct could hinder 20

[their] career [s]

. ” 101 F.3d at 811

. 21

6 In pertinent part, the guidelines also provide:

Members of the service are required to maintain control or intervene if the use of force against a subject clearly becomes excessive. Failure to do so may result in both criminal and civil liability.

N.Y.P.D

. Patrol Guide, Use of Force Guidelines § 203

- 11 (Effective 08/01/13).18 4. Comparison with Punitive Damage s Awards in Similar Cases 1

Because each case presents a unique set of facts and circumstances, “ our 2

task is not to balance the number of high and low awards and reject the verdict 3

. . . if the number of lower awards is greater. ” Ismail , 8 99 F. 2 d at 187

. A review of 4

our cases confirms that the verdict was within the range where similar punitive 5

damage s awards were determined to be reasonable

. 6

For example, in Payn e , this C ourt remitted an award of $300,000 to 7

$1 0 0,000 against an individual officer where there were “significant mitigating 8

factors

, so that the degree of reprehensibility was not all that high

. ” 711 F.3d at 9

101

. Yurkiw’s conduct alone , in contrast, was more reprehensible and lacks 10

compa rable mitigating factors

. In the absence of significant mitigating factors 11

such as those present in Payne , we do not believe that the punitive award against 12

any of the officers warrants remittitur. Here, the total punitive damage s award of 13

$355,000 against all officers

, including the $250,000 levied against Yurkiw, are 14

below the amounts this C ourt has previously found reasonable against several 15

officers and an individual officer for similarly reprehensible conduct

. See, e.g.

, 16

O’Neil l , 839 F.2d at 1 3

– 1 4 (sustaining an award against two officers totaling 17

roughly $4 38 ,000 , accounting for inflation ); Ismail , 899 F.2d at 185

- 8 7 (sustaining 18

an award against one officer totaling roughly $ 319 ,00 0, accounting for inflation)

. 7 19

This is true even if we were to ignore that Yurkiw and the other o fficers took 20

steps to conceal their use of excessive force. Taking the o fficers’ deliberate 21

concealment of evidence into account only heightens the degree of malice 22

7 These totals are a djusted for inflation using the Bureau of Labor Statistics’ Inflation Calculator to estimate dollar equivalents. See CPI Inflation Calculator, U.S.

B UREAU OF L AB

. S T AT

. , bls.gov/data/inflation_calculator.htm

.19 associated with their excessive f orce and further confirms that the punitive 1

damages were supported by the record evidence

. 8 2

II. 3

Jennings argues on cross

- appeal that the district court erred by remitting 4

the compensatory damages award from $500,000 to $115,000 after the first trial

. 9 5

We disagree. The court found that Jennings’s physical injuries from the excessive 6

force were nasal fracture s, various other swelli ng and bruises after his arrest, and 7

the longer

- lasting injuries of a crooked nose and headaches, for which Jennings 8

had not sought ongoing treatment. Moreover, Jennings also suffered the 9

8 We easily reject the o fficers’ contention that the district court’s decision to uphold the punitive damages award after retrial was barred by the law of the case

doctrine. The law of the case is “ informed principally by the concern that disregard of an earlier ruling not be allowed to prejudice the party seeking the benefit of the

doctrine.” Prisco v. A & D Carting Corp.

, 168 F.3d 593, 607 (2d Cir. 1999 ). “Prejudice” in

this context refers not to b are harm, but to surprise or “lack of sufficient opportunity to prepare armed with the knowledge that the prior ruling is not deemed controlling.” Id. (cleaned up). Therefore, in th is Circuit, the law of the case doctrine “ need not be applied when no prejudice results from its omission.” First Nat ’ l Bank of Hollywood v. American

Foam Rubber Corp., 530 F.2d 450, 453 n.3 (2d Cir. 1976)

. Moreover, the case for applying the doctrine is considerably weaker where, as in
the context of a conditional remittitur, a n issue is relitigated as a matter of right

. Cf. Hetzel v. Prince William Cnty. , 523 U.S. 208, 211

– 12 (1998) (per curiam) (noting that the

district court was correct to offer the option of a new trial when it entered judgment for reduced damages)

. T he o fficers claim no prejudice or surprise from the district court ’ s reconsideration of the proper quantum of punitive damages before or after the retrial

, particularly where the district court noted that its remittitur was a “speculative, arbitrary approximation[]

. ” Special App’x at 17. Nor could they. The o fficers requested remittitur. They were on full notice that there would be a retrial on damages and had a fair opportunity to present their defenses to the juries and to the district court.

9 Jennings also argues that the district court erred in remitting the first punitive damages award from $2,500,000 to $140,000 . But as explained above, the $355,000 in punitive damages levied by the jury after retrial and upheld by the district court is within a range that “represents a reasonable view of the evidence.” Pl. Br. at 28.20 emotional trauma of experiencing excessive force in the presence of his son

. The 1

district court remitted the compensatory award from $500,000 to $115,000 , which 2

it observed was on the higher end for non

- permanent physical injuries after 3

comparing Jennings’s injuries to those experienced i n comparable § 1983 cases

. 4

Jennings identifies no erro r, legal or factual, in th is conclusion

. Rather, i n 5

canvassing cases where plaintiffs suffered broken noses and jaws, Jennings 6

argues that the district court should have remitted the award to between 7

$150,000 to $200,000. However, unlike those plaintiffs, Jennings did not undergo 8

surgery or otherwise seek ongoing treatment that would contribute to the pain 9

and suffering supporting the compensatory awards. And regarding his 10

emotional damages, Je nnings’s evidence was not extensive

. The district court did 11

not exceed its discretion i n remitting Jennings’s compensatory damages award to 12

$115,000

, an “amount at the very high end of awards for non

- permanent 13

injuries

. ” Sp. App’x at 53

. Finally, we note t hat the district court’s conclusion that 14

$115,000 rests on the high end for Jennings ’ s injuries for a single claim of 15

excessive force is confirmed by the fact that at the retrial the jury awarded 16

$90,000 in compensatory damages

. For these reasons , we conc lude that the 17

district court did not abuse its discretion in remitting compensatory damages 18

following the first trial

. 19

CONCLUSION 20

We have considered the parties ’ remaining contentions and find them to 21

be without merit. T he judgment of the district court is AFFIRMED

. 22