05-6309-cv

Zellner v. Summerlin

1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3 - - - - - -

4 August Term, 2006

5 (Argued: February 23, 2007 Decided: July 20, 2007) 

6 

7 Docket No. 05-6309-cv

8 _________________________________________________________

9 JOHN ROBERT ZELLNER,

10 Plaintiff-Appellant,

11 - v. -

12 ROBERT G. SUMMERLIN, TROOPER, and MAJOR WEBER,

13 Defendants-Appellees,

14 STATE OF NEW YORK, NEW YORK STATE POLICE DEPARTMENT,

15 and JOHN DOES 1-10,

16 Defendants.

17 _________________________________________________________

18 Before: KEARSE, CABRANES, and KATZMANN, Circuit Judges.

19 Appeal from a judgment of the United States District Court

20 for the Eastern District of New York, Sandra L. Townes, Judge, (1)

21 granting judgment as a matter of law in favor of defendants22 appellees on plaintiff's false arrest and malicious prosecution

23 claims, following a jury verdict in plaintiff's favor on those

24 claims, and (2) denying plaintiff's motion for a new trial on his

25 excessive force claim following a jury verdict in defendants' favor

26 on that claim. See 399 F.Supp.2d 154 (2005).

27 Reversed in part and remanded; affirmed in part.
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1 SCOTT A. KORENBAUM, New York, New York

2 (Frederick K. Brewington, Hempstead, New York,

3 on the brief), for Plaintiff-Appellant.

4 RICHARD DEARING, Assistant Solicitor General,

5 New York, New York (Eliot Spitzer, Attorney

6 General of the State of New York, Michael S.

7 Belohlavek, Senior Counsel, Mariya S. Treisman,

8 Assistant Solicitor General, Charleen Hsuan,

9 Legal Intern, New York, New York, on the

10 brief), for Defendants-Appellees.

11 KEARSE, Circuit Judge:

12 Plaintiff John Robert Zellner appeals from a final

13 judgment of the United States District Court for the Eastern

14 District of New York, Sandra L. Townes, Judge, dismissing his

15 claims, brought under 42 U.S.C. § 1983, against defendants Robert G.

16 Summerlin and Thomas Weber (collectively "defendants"), as members

17 of the New York State Police ("State Police"), for false arrest,

18 malicious prosecution, and use of excessive force during arrest.

19 Following jury verdicts awarding Zellner a total of $85,500 in

20 compensatory and punitive damages on the false arrest and malicious

21 prosecution claims, the district court granted defendants' motion

22 pursuant to Fed. R. Civ. P. 50(b) for judgment as a matter of law

23 dismissing those claims on the ground of qualified immunity. On

24 appeal, Zellner contends principally that, in granting judgment as

25 a matter of law, the district court impermissibly decided questions

26 of fact. He also contends that the jury's verdict in favor of

27 defendants on his excessive force claim should have been set aside,

28 and a new trial granted on that claim. Because we conclude that, in

29 granting judgment as a matter of law, the district court erred by

30 making factual findings adversely to Zellner, rather than viewing
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1 the record in the light most favorable to him, we reverse so much of

2 the judgment as dismissed Zellner's false arrest and malicious

3 prosecution claims; we remand for entry of an amended judgment

4 reinstating the jury's awards of compensatory and punitive damages

5 on those claims. We affirm so much of the judgment as dismissed the

6 excessive force claim.

7 I. BACKGROUND

8 The present action arises out of a February 25, 2000

9 demonstration protesting the construction of a new housing

10 development called Parrish Pond, across a highway from the

11 Shinnecock Indian Reservation ("Shinnecock Reservation" or

12 "Reservation") in the Town of Southampton, New York (the "Town").

13 Photographs introduced at trial as plaintiff's exhibits ("PX")

14 showed demonstrators holding placards stating, e.g., "Sacred Land,"

15 "Indian Land Forever," and "Stop the Desecration."

16 Zellner, a sixty-odd-year-old adjunct professor of

17 American history at Southampton College, served as co-chair of the

18 Southampton Anti-Bias Task Force, a committee of citizens appointed

19 by the Town to investigate complaints of bias and discrimination.

20 He was called to the site of the demonstration by Benjamin Haile, a

21 Shinnecock Reservation resident.

22 The scene of the demonstration was a field area

23 surrounding a grass-and-dirt driveway leading from a paved two-way

24 public road to the Parrish Pond development construction site.

25 Troopers from the State Police were present; Weber, a major, was in
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1 charge. During the demonstration, a construction-related truck

2 attempted to enter the driveway and was temporarily blocked by some

3 of the protestors. Zellner was arrested and charged with disorderly

4 conduct in violation of N.Y. Penal Law ("Penal Law") § 240.20(5)

5 (McKinney 2000), and resisting arrest, in violation of N.Y. Penal

6 Law § 205.30 (McKinney 1999). More than a year later, after over a

7 dozen court appearances and adjournments, the charges against him

8 were dismissed for lack of prosecution.

9 A. The Present Action

10 Zellner brought the present § 1983 action in 2002,

11 alleging, to the extent pertinent here, claims of false arrest,

12 malicious prosecution, and use of excessive force during arrest. A

13 trial was held on those claims against Major Weber and Trooper

14 Summerlin (other claims and defendants having been dismissed

15 earlier). The trial produced sharply divergent versions of the

16 events leading to Zellner's arrest. The witnesses included Zellner

17 and several residents of the Shinnecock Reservation who supported

18 his version, and Major Weber, Trooper Summerlin, and several other

19 troopers who supported key elements of defendants' version. In

20 addition, a videotape, produced by a camera that had been mounted on

21 one of the State Police vehicles, was played.
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1 1. Testimony by Zellner and Reverend Davis

2 Early on the morning of February 25, 2000, Zellner

3 received a call at home from Haile, asking him to "look at a

4 situation on St. Andrew's Road, just off the reservation." (Trial

5 Transcript ("Tr.") at 340.) Zellner responded that he was involved

6 in a project; he suggested that Haile instead call the other co7 chair of the Anti-Bias Task Force, but that if Haile were unable to

8 find someone else to help he should call Zellner again. Eventually

9 Haile called Zellner back, stating "we need you." (Tr. 341.)

10 Zellner arrived at the demonstration site on St. Andrew's

11 Road sometime after noon and was greeted by Reverend Holly Davis, a

12 pastor at two area Presbyterian churches, who introduced him to some

13 of the protestors. For about a half-hour, Zellner received

14 information about the situation from some of the Shinnecock elders

15 and from Reverend Davis, learning that the Shinnecocks had sought

16 and been granted a temporary injunction against the construction

17 work and that a written restraining order was on the way. Reverend

18 Davis had been engaged in discussions with Major Weber most of the

19 day (see id. at 47-48, 49; see also id. at 94 (testimony of Weber:

20 "The Reverend Davis was telling me all afternoon that the paperwork

21 was being signed, that it was coming. I wanted the injunction order

22 to cease work to arrive so I could calm things down."). After

23 Zellner arrived, Davis, accompanied by a few others including a

24 79-year-old woman who was a Shinnecock elder, introduced Zellner to

25 Major Weber. (See id. at 49, 344.)

26 Zellner and Weber shook hands, and Zellner identified

27 himself as co-chair of the Anti-Bias Task Force. Zellner described
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1 his ensuing conversation with Major Weber--and the arrest--as

2 follows:

3 I explained that I had been called and asked to come

4 down and talk to the police and--in an effort to

5 keep things calm.

6 Q. And, sir, did he respond to you at that

7 point?

8 A. He did. He said, what--he asked me what

9 business was it of mine, and I said--I reiterated I

10 was co-chair of the Anti-Bias Task Force and that I

11 was asked by the community to make sure that he knew

12 that there was a restraining order against the work

13 going on in that area and that the--that I

14 understood that the restraining order was on the way

15 and would they be able to wait before they took any

16 action until the restraining order got there.

17 Q. At that point, sir, what was your demeanor?

18 Can you describe that for the jury.

19 A. My demeanor was very respectful. It was

20 quiet because everybody there was very solemn and

21 respectful and quiet.

22 Q. And, sir, what next happened, please.

23 A. Major Weber indicated that he knew that

24 there was a restraining order and he said it's not

25 here yet, and I said, I understand it's not here,

26 but I just wanted to make sure that you know it's on

27 the way, and what we're concerned about is that

28 there's an evenhanded treatment of everyone in this

29 situation.

30 Q. Did he respond to you at that point?

31 A. Well, he didn't, and I said, [c]ould you

32 assure me that there will be evenhanded treatment?

33 And he said, with some excitement, that we had to

34 keep the road open, and I had observed that the road

35 was--the traffic was moving back and forth on the

36 road, and I said, [i]t seems that everything is

37 reasonable at this moment.

38 Q. Then what happened?

39 A. With that--while I was literally speaking

40 to the major, just a few seconds after we had

41 actually shaken hands, I was grabbed from behind and
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1 pushed down and pulled backwards out of in front of

2 the major.

3 Q. And at that time, sir, did you [have]

4 anything in your hands?

5 A. I had--still had a coffee cup. I think I

6 had put it down at some point, but I had picked it

7 back up. I had a coffee cup in my hand, as I

8 recall. That's the only thing I had in my hand. 

9 Q. And, sir, at the point that you were

10 pulled, as you indicated, what next happened?

11 A. I was very roughly pulled out and my arm

12 was placed behind my back and my arm was twisted

13 extremely painfully and I looked over my right

14 shoulder and I said, "You're breaking my arm.

15 Please don't break my arm."

16 . . . .

17 Q. Now, sir, at that point that you said that,

18 was there any response to your statement?

19 A. Yes.

20 Q. What was the response?

21 A. The response was a much more severe

22 twisting of my arm and the words, "Resisting are

23 you?" And I said, "No. You're breaking my arm,

24 please don't break my arm."

25 (Tr. 344-46 (emphasis added); see also id. at 380 ("I was face-to26 face with Major Weber and I was grabbed from behind, pulled

27 backwards and down.").)

28 Zellner testified that his right arm was held at the elbow

29 while his wrist was being "turned in the way that [his] arm didn't

30 turn," and he could feel the cartilage or tendons cracking. (Id. at

31 349.) He stated that he was also kicked or kneed in the jaw and

32 that his left knee was either kicked or stepped on. (See id. at

33 350.) Zellner later learned that one of the troopers who had

34 grabbed him from behind was Summerlin. (See id. at 346.)
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1 Zellner testified that before being grabbed, he "was not

2 asked to do anything" and "was not ordered to do anything." (Id. at

3 453; see also id. at 381.) He "was simply grabbed from behind,"

4 without any idea of why or by whom, and was not even "told that [he]

5 was under arrest." (Id.) Zellner testified that he "didn't give

6 any resistance except verbally asking them not to injure [his] arm

7 further." (Id. at 351.)

8 Reverend Davis testified that after she introduced Zellner

9 to Major Weber, she was never more than 10 feet from Zellner before

10 he was taken away by the troopers. (See Tr. 71, 79.) She testified

11 that before Zellner was grabbed by the troopers, she did not hear

12 any of the troopers give him an order. (See id. at 80.) As she and

13 Zellner and the others were all "standing there" (id. at 50), "they

14 grabbed Bob[;] . . . I called it an attack in my deposition, and

15 down on the ground he was" (id. at 51).

16 2. The Testimony of Major Weber

17 Major Weber testified that he had been informed by

18 Reverend Davis on February 25 that an injunction order was being

19 signed, ordering the cessation of construction work at the site.

20 When Zellner arrived, Weber "was waiting for the injunction to

21 arrive so we could put things to rest." (Tr. 94.) Weber and

22 Zellner shook hands, and Weber "said to Mr. Zellner, are you the

23 lawyer. He said yes." (Id.)

24 Q. When he said yes, . . . what is the next

25 thing that you say happened?

26 A. I said to him, where is the paperwork.
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1 Q. Did he respond to you?

2 A. Yes.

3 Q. What did he say?

4 A. He said you keep these--keep this truck out

5 of here even without the paperwork.

6 (Id. at 95.)

7 Major Weber testified that when he proceeded to inform

8 Zellner that trucks were coming in to refuel on-site equipment and

9 instructed one of the troopers to let the arriving truck enter,

10 Zellner sat down on the ground. (See, e.g., id. at 133-34, 176.)

11 Weber stated that at first he thought Zellner had had a heart

12 attack, but Zellner then yelled for everyone else to sit down as

13 well. (See, e.g., id. at 135, 176.) Weber testified that he was no

14 more than six or eight inches from Zellner at the time, and he

15 described the event as follows:

16 Q. When you were standing that distance from

17 Mr. Zellner, could you describe for the jury how you

18 claim he sat down?

19 A. I shook hands with Mr. Zellner. He

20 introduced himself. I said, are you the lawyer.

21 Mr. Zellner replied, either yes or yeah. I said,

22 where is the paperwork, meaning the injunction. He

23 started saying that you should keep these trucks out

24 without the paperwork.

25 . . . .

26 I explained to Mr. Zellner that the truck was

27 coming in to refuel equipment so they could leave.

28 They already stopped the work. They wanted to leave

29 the scene to go to other projects for the next

30 thirty days, construction projects. They needed

31 some of their equipment. Their purpose was to gas

32 the equipment and leave.

33 With that, Mr. Zellner again said to me, you

34 should keep the trucks out. I was confused. The

35 trucks were going to move out in ten or fifteen
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1 minutes.

2 With that I said to him, the trucks are coming

3 in and they [sic] are coming in now. And I told my

4 captain . . . [to] get these trucks [sic] in because

5 the trucks [sic] created a danger to the children

6 that were at the scene. [The captain] proceeded to

7 try to get the trucks [sic] in.

8 With that, Mr. Zellner dropped to the ground

9 right in front of me.

10 Q. Okay. Sir, can you describe how Mr.

11 Zellner dropped to the ground?

12 A. Mr. Zellner proceeded down. While

13 attempting to sit down he stated, everybody down,

14 everybody down. Then he either went down on his

15 backside or on his ankles.

16 Q. Sir, when you say either went down on his

17 backside or his ankles, [you] were standing six

18 inches from him?

19 A. Yes.

20 Q. So which was it?

21 A. Either his rectum or his ankles. I am not

22 sure.

23 Q. Sir, he didn't-- 

24 A. This happened in a split second.

25 Q. He didn't sit on his rectum, did he?

26 A. Either sat on his backside or his ankles.

27 Q. Sir, when this happened, that being Mr.

28 Zellner allegedly sitting down on his ankles or his

29 backside, as you indicated, were there other

30 officers standing right behind Mr. Zellner?

31 A. I don't know.

32 Q. Take a look at the picture, sir. Did their

33 position change any? You are looking at [PX] 19-A,

34 right?

35 A. This picture doesn't tell me that Mr.

36 Zellner is going to sit down. He's standing up.
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1 . . . .

2 Q. Was the position of the officers with

3 regard to Mr. Zellner different from the point at

4 which [PX] 19-A depicts and the point at which Mr.

5 Zellner sat down on his ankles or his backside?

6 A. At the time, when Mr. Zellner dropped, I

7 didn't notice any troopers around him. Nor was I

8 looking for any troopers around him. I was

9 concerned with Mr. Zellner sitting down because at

10 first I thought he was sick. Something was

11 happening right in front of me. He was going down.

12 I was unsure what it was until he stated everybody

13 down, everybody down. Then I knew I had a problem.

14 (Tr. 133-36.)

15 Q. Up to this point that he began dropping,

16 how long had your conversation with the plaintiff

17 lasted?

18 A. Twenty, thirty seconds.

19 Q. When he began dropping, what was your

20 reaction?

21 Did you think you had probable cause of any--

22 for an arrest of any kind?

23 A. No . . . .

24 . . . .

25 Q. Did he say anything when he was sitting

26 down?

27 A. No.

28 I thought when he started going down, this had

29 never happened to me before, I thought I had

30 somebody sick on my--I thought I had a heart attack

31 on my hands. He started going down. Okay. Then

32 when he started yelling, everybody down, everybody

33 down, I knew I had what we call "passive

34 resistance." He was going to sit down and try to

35 block traffic and he was going to try to get the

36 twenty, thirty, forty other demonstrators to follow

37 his lead, and I knew I had a problem. I had women

38 and children. If they started squatting in front of

39 that pickup truck, and tribal members or

40 demonstrators started gathering on that pickup

41 truck--
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1 . . . .

2 . . . I knew I had a problem. If that operator

3 attempted that left-hand turn, people would have

4 been hurt.

5 Q. How many times did the plaintiff yell

6 "everybody down"?

7 A. I believe, two times. Maybe three.

8 Q. Did you see anyone else sit down?

9 A. No.

10 Q. What did you do when the plaintiff sat down

11 and said "everybody down"?

12 A. I knew I had to get him. I had two

13 objectives at that point. Get him away from the

14 scene and get the trucks [sic] inside the driveway,

15 to defuse the situation.

16 Q. Did you say anything to the plaintiff when

17 he sat down?

18 A. I grabbed him underneath--I believe--his

19 right armpit with my left arm. I said get up.

20 Q. Did he get up?

21 A. No.

22 Q. What, if anything, was the crowd doing at

23 that point?

24 A. I heard the crowd behind me, yelling and

25 screaming.

26 . . . .

27 Q. . . . . What did you do at that point?

28 A. When Mr. Zellner wouldn't get up, I looked

29 up and I saw two or three troopers there and I said,

30 get him out of here, dis con, which is disorderly

31 conduct.

32 (Tr. 176-78.)

33 At his deposition some 10 months before trial, Major Weber

34 had been asked what Zellner had done that constituted disorderly
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1 conduct. Weber's answer had then been: "He sat down on a driveway

2 in a paved portion of the road, I don't know exactly where, for the

3 purposes of obstructing vehicle traffic, and I determined that was

4 disorderly conduct . . . ." (Tr. 144 (internal quotation marks

5 omitted).)

6 3. The Testimony of Other Troopers

7 Summerlin testified that after "someone came running down

8 the road wa[]ving their cell phone and stating that they had

9 received a court order" (Tr. 691), Zellner "was yelling at the

10 Major, pointing his finger[,] saying you should wait for the court

11 order, you should wait for the court order" (id. at 693-94). At the

12 time, Summerlin testified, Major Weber was trying, in a professional

13 and businesslike manner, to explain that the truck was entering

14 solely to refuel an on-site vehicle, and that the project was

15 shutting down. (See id. at 694.)

16 Q. After Major Weber explained why the truck

17 was attempting to enter and the plaintiff [was]

18 yelling at Major Weber and pointing at him, what

19 happened next?

20 A. At some point in time all I can remember is

21 that as I was looking out I heard someone say

22 everybody down, Mr. Zellner fell down to his knees

23 and folded his legs scissor fashion.

24 Q. Where were you in relation to this?

25 A. I was standing on his left side.

26 Q. What happened after the plaintiff dropped

27 to the ground and said everybody down?

28 A. I had turned to look off towards my left

29 and I could hear the Major say get up.

30 Q. Did the plaintiff get up when the major
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1 said that?

2 A. No, he left his hands, he had his legs

3 scissor fashion and his hands were on his knees and

4 his head was down.

5 Q. After the Major asked the plaintiff to get

6 up, what happened?

7 A. The major looked towards me and Trooper

8 Parker and said get him out of here dis con.

9 Q. Get him out of here dis con, what did you

10 understand that to mean?

11 A. That he was under arrest.

12 Q. What was he under arrest for at that time?

13 A. Disorderly conduct.

14 (Tr. 695.)

15 Trooper Kevin Drew testified that he was standing "right

16 next" to Zellner, when Zellner "all of a sudden shout[ed] . . . he

17 wanted everybody to sit down." (Id. at 665.)

18 Q. After he shouted for everybody to sit down,

19 what did he do?

20 A. He sat down and nobody else did.

21 Q. Where were you when this took place?

22 A. I was behind him, just maybe four to five

23 feet away.

24 Q. What did you do after he sat down?

25 A. After he sat down, I observed the Major

26 come over and talk to him about getting up and

27 moving and . . . Troopers Parker and Summerlin came

28 over too and were negotiating with him to move and

29 about letting the truck in.

30 (Id.) Drew's written reports of the incident did not state that

31 Zellner had shouted for others to sit down. (See id. at 682-83.)

32 Trooper Derrick Parker testified that as Major Weber was
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1 in the driveway telling people to "let the truck come through so it

2 could fuel up" (Tr. 630), Zellner, who was sipping coffee from a cup

3 in his hand (see id. at 646), "was standing right in front of Major

4 Weber and he was saying something back to Major Weber, Major Weber

5 was asking him to move from the driveway" (id. at 630-31).

6 Q. What happened after that if you remember?

7 A. Mr. Zellner said something, he just dropped

8 to the ground.

9 Q. When you say dropped to the ground, did

10 anything that you said cause him to drop to the

11 ground?

12 A. No.

13 Q. Did anybody hit him or was he in contact

14 with anybody when he dropped to the ground?

15 A. No, he just dropped to the ground and sat

16 down.

17 Q. Would you describe how he dropped to the

18 ground, did he go backwards, to the left or right,

19 straight down?

20 A. Straight down to the ground.

21 Q. Is there any way further that you could

22 describe how he went to the ground?

23 A. No other way, he just dropped straight down

24 and sat down on his butt.

25 (Id. at 631.)

26 Q. Sir, you said that Mr. Zellner went down on

27 his butt, correct?

28 A. Yes.

29 Q. He didn't go down on his knees, right?

30 A. No.

31 Q. And you were standing right behind him, you

32 would have seen that, right?
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1 A. Yes.

2 (Id. at 655-56.)

3 Q. Do you remember where Major Weber was?

4 A. Yes, he was in the driveway, the middle of

5 the driveway, talking to Mr. Zellner.

6 (Id. at 632.)

7 Parker, who was "standing right behind" Zellner (id. at

8 656), slightly to his right (see, e.g., id. at 631-32, PX 19A,

9 PX 19D), did not hear Zellner yell anything to the crowd:

10 Q. Now, when Mr. Zellner went down, you said

11 nobody said anything to him at that point, is that

12 correct--

13 Did you say anything to him?

14 A. No.

15 Q. Did anybody else say anything to him?

16 A. No.

17 Q. Did you hear Mr. Zellner say anything?

18 A. I didn't hear him say anything . . . .

19 (Tr. 652.)

20 Trooper Michael Lewis testified that he saw Zellner and

21 Major Weber talking. He could not hear the conversation, but said

22 he saw Zellner sit down:

23 Q. After the truck began to attempt to enter

24 the driveway, and the people moved in front of it,

25 and Major Weber was talking, what happened next?

26 A. Around that time I observed the plaintiff

27 move into the center of the driveway, and then he

28 sat down after having a discussion with Major Weber,

29 which I could not hear, he sat down.

30 Q. At the time that he sat down, were any

31 troopers in contact with him at that time?
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1 A. No.

2 Q. Where specifically did he sit down; in the

3 road, the driveway or somewhere else?

4 A. Right in the middle of the driveway. 

5 Q. After he sat down, what else did you

6 observe with regard to the plaintiff at that time?

7 A. I observed Troopers Parker and Summerlin

8 lift him and attempt to remove him from the scene.

9 (Tr. 743-44.)

10 Lewis, who did not testify that Zellner yelled anything to

11 the crowd, wrote a memorandum on the incident, which did not

12 indicate even that Zellner sat down. At no time did Lewis ever

13 report to anyone in writing that he saw Zellner sit down. (See id.

14 at 759-61.)

15 4. Testimony by Non-Troopers

16 Zellner denied that he had sat down at the scene of the

17 demonstration and denied that he had urged anyone else to do so. He

18 said that he had not seen the truck that was attempting to turn into

19 the property, and that he was not even aware that there was a

20 driveway. (See Tr. 392-93.) Asked to describe what his "voice

21 level" had been "at any time before being grabbed" (id. at 348),

22 Zellner testified:

23 A. My voice level was conversational and quiet

24 and respectful.

25 Q. And, sir, at the time that you were

26 grabbed, did you make or yell any statements to the

27 crowd?

28 A. No, I did not.

29 Q. Sir, at any point did you sit down?
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1 A. No, I did not.

2 (Id. at 348-49; see also id. at 380 ("I never did sit down"; "I

3 didn't sit down.").) Zellner testified that he did not at any point

4 yell to the crowd (see id. at 376) and never yelled "everybody down"

5 (id. at 381).

6 Reverend Davis, who stood no more than 10 feet away from

7 Zellner after she introduced him to Major Weber, testified that she

8 never heard Zellner raise his voice and never saw him attempt to sit

9 down:

10 Q. . . . . [T]ell us, please, at any point did

11 you make any observation of Mr. Zellner attempt to

12 try and prevent police from doing anything?

13 A. No, I did not observe that at all.

14 . . . .

15 Q. When, if at all, did you see Mr. Zellner

16 sit down?

17 A. I didn't see him sit down at all.

18 Q. At any point did you see him attempt to sit

19 down?

20 A. I did not see him try to sit down.

21 (Tr. 71.)

22 Q. And was there anything obscuring your view

23 of what you saw?

24 A. No. I saw him go down.

25 Q. And can you tell the jury, did you see--

26 what if anything was it that made him go down?

27 A. Well, yes. I saw the troopers. I counted

28 4 troopers touching him.

29 Q. And at that time what was Mr. Zellner

30 doing?

31 A. Well, he had a cup of coffee in his hand,
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1 and so between the time that the troopers had hold

2 of him and he was drinking his coffee the last time

3 I had seen him, he wasn't doing anything.

4 Q. And at any point did you hear him say

5 anything, raise his voice or in any way shout

6 anything?

7 A. Oh, no, not at all.

8 (Tr. 58 (emphases added).)

9 Gordell Wright, a resident of the Shinnecock Reservation,

10 testified that he was just a few feet away from Zellner when he saw

11 two troopers grab Zellner's arms and throw him to the ground. (See

12 id. at 317-18.) When grabbed, Zellner was standing, doing

13 "[n]othing"; he was not seated. (Id. at 318.) Wright had not heard

14 Zellner say anything or yell anything to the crowd. (See id.) When

15 the troopers grabbed Zellner, they pushed him toward the ground and

16 he fell; Zellner did not resist arrest at all. (See id. at 328.)

17 Rebecca Genia, a resident of the Reservation who had been

18 at the demonstration site the entire day, testified that she did not

19 see Zellner (whom she had not previously met) sitting down and did

20 not hear him or anyone else urge everybody to sit down. She heard

21 a "ruckus" and saw Zellner on the ground. (Tr. 235.) She then saw

22 him being dragged past her, screaming about his arms (see id. at

23 237).

24 Q. At any time did you hear that individual

25 that you now know to be Robert Zellner say the words

26 "everybody down, everybody down"?

27 A. No.

28 Q. Did you ever hear those words on that day?

29 A. No.

30 . . . .
- 20 -

1 Q. At any time when you were looking in th[e]

2 direction [of Zellner being dragged away], or

3 anytime before that, did you make any observation of

4 a man you now know to be Robert Zellner, Bob

5 Zellner, sitting down?

6 A. No.

7 (Tr. 237-38.)

8 Benjamin Haile, who had asked Zellner to come to the

9 demonstration site that morning, testified that he did not see the

10 incident involving Zellner but heard the scuffle. (See Tr. 259-60.)

11 At the time, Haile was in the driveway, some 10 feet away from the

12 road; the scuffle involving Zellner was behind him, farther into the

13 driveway. (See id. at 260.)

14 Q. At any point prior to hearing the scuffle

15 behind you, did you hear anyone say the words

16 "everybody down, everybody down"?

17 A. No.

18 Q. Anybody say that that day?

19 A. No.

20 (Id. at 262.)

21 Harriet Gumbs, a Shinnecock elder who was 79 at the time

22 of the demonstration, testified that she was standing next to

23 Zellner, close enough to touch him, when Zellner was grabbed by the

24 State troopers. (See id. at 305.) She testified that Zellner

25 neither sat down nor told anyone else to do so:

26 Q. At any point prior to that point, ma'am,

27 did you see Mr. Zellner sit down?

28 A. No, he did not.

29 Q. At any point during that day did you see

30 Mr. Zellner sit down--

31 A. It was too cold to sit down. We were
- 21 -

1 freezing out there.

2 (Tr. 304-05.) Asked what Zellner "was doing with his body" just

3 before he was grabbed, Gumbs testified that he was "standing," not

4 "sitting or anything else." (Id. at 306-07.) Nor did he yell

5 "everybody down":

6 Q. . . . . Prior to him being grabbed by the

7 troopers, did you hear him at any point say

8 "everybody down, everybody down"?

9 A. He never, ever said that.

10 Q. Did anybody ever say that there?

11 A. No one said it.

12 (Id. at 308.)

13 Gumbs testified that when the troopers grabbed Zellner,

14 they put his arms "behind his back, but they did not do it in a

15 gentle manner, they did it like they was trying to pull him apart,

16 take his arms off of him." (Id. at 305.) Then "[t]hey got him down

17 on the ground and they had his face almost buried in the ground. I

18 thought he was going to smother before they got up off him." (Id.

19 at 308.)

20 5. The Videotape and Photographs

21 The video camera did not record any part of Zellner's

22 interaction with Major Weber. It was located to the north of the

23 driveway and was pointed south at a short stretch of St. Andrew's

24 Road. The videotape shows sparse vehicular traffic on the road,

25 some pedestrian cross-traffic, and a congregation of people at the

26 west edge of the road, north of the driveway. The driveway itself--

27 which still photographs show as no more than a somewhat beaten-down
- 22 -

1 grass-and-dirt path leading through a field of brush and bushes

2 (see, e.g., PX 26C)--is not visible on the videotape. For some 10

3 minutes, according to the time-of-day display on the videotape,

4 Zellner is shown at the edge of the road talking to demonstrators;

5 a zoom shot during this period shows Zellner holding a coffee mug.

6 At 13:19:00, the videotape shows a pickup truck arriving,

7 signaling for a left turn into the Parrish Pond development. A

8 trooper goes into the road to the truck, which begins a left turn

9 but stops as people appear to congregate around it. At about the

10 same time Zellner walks away from the road and into another crowd of

11 people, away from the camera, moving closer to the driveway. The

12 videotape shows Zellner, partially obscured, bending forward from

13 the waist at 13:19:20, straightening up at 13:19:22, bending forward

14 again at 13:19:25, and straightening up again at 13:19:26. Zellner

15 then all but disappears into the crowd, and for most of the next

16 approximately four minutes, only his hat is visible on the tape. A

17 still photograph, PX 19A, which by all accounts depicts the scene

18 inside that crowd moments before Zellner began speaking with Major

19 Weber (see, e.g., Tr. 219, 317, 342, 648), shows Zellner (coffee mug

20 in hand) standing with Gumbs, Wright, and two other protestors,

21 surrounded by Summerlin, Parker, and two other (unidentified)

22 troopers. No one appears to be saying anything; Major Weber, his

23 side turned toward this group, is standing a few feet away from

24 Zellner.

25 At about 13:23 on the videotape, Zellner's hat disappears

26 from view, and he is not seen again on the tape for some 20-25

27 seconds. A still photograph, however, PX 19D, was taken in the
- 23 -

1 interim. It shows Zellner tilted backward at about a 45-degree

2 angle, with Summerlin holding his left arm, Parker holding his right

3 arm, Drew with a hand on the back side of Zellner's jacket (see Tr.

4 678), and Major Weber leaning forward with his left arm

5 outstretched, his hand on Zellner's right shoulder (see, e.g., id.

6 at 404). The postures of Troopers Summerlin and Parker indicate

7 that they are pulling Zellner backwards. Major Weber testified that

8 PX 19D shows the troopers "escorting" Zellner away after he sat down

9 in the driveway. (Tr. 138, 187.) Zellner, in contrast, testified

10 that PX 19D shows "the exact moment when [he was] unexpectedly

11 pulled from behind" and taken to the ground. (Tr. 404.) Reverend

12 Davis similarly testified that, in PX 19D, "the[ troopers] were

13 pulling [Zellner] to the ground." (Tr. 68.)

14 At about 13:23:20, the videotape shows Zellner, upright

15 and walking, being brought out through the crowd by two troopers.

16 A subsequent still photo, PX 19C, shows Zellner prone, spread-eagle,

17 on the ground with Troopers Summerlin and Parker apparently cuffing

18 his hands behind his back, and Trooper Drew watching.

19 When Zellner was asked about the seven-second segment of

20 the videotape at 13:19:20-13:19:26, which showed him twice bending

21 forward at the waist, he testified that he had bent first to put his

22 coffee mug down in order to button his coat or tie its belt, and

23 then had bent again to retrieve the mug. (See Tr. 377-78.) Major

24 Weber, however, after having been shown that part of the videotape,

25 testified, "I'd like to call them practice runs" (id. at 118).

26 Q. I'm sorry, sir?

27 A. I like to call it a practice run.
- 24 -

1 (Id.) Shown that segment again, Weber testified that he viewed

2 Zellner as practicing sitting down and showing the demonstrators how

3 to sit down:

4 Q. Sir, we're at 13:19. The truck is there;

5 correct?

6 A. Yes.

7 Q. Mr. Zellner is still standing there?

8 A. Yes, he is. There he is.

9 Q. When you say--we're just at 13:19, and that

10 would have been 21 or 22 seconds. You're saying

11 that was a dry run?

12 A. I believe after seeing this video that was

13 a practice run on how to engage in passive

14 resistance, sitting down.

15 Q. Sir, when he leaned forward as though to go

16 to whatever in [sic] front of him, you're saying

17 that that is the equivalent of sitting down?

18 A. I believe--

19 Q. Sir?

20 A. --that is the equivalent of sitting down.

21 Q. Very well.

22 A. Instructing the demonstrators how to sit

23 down.

24 (Id. at 120.)

25 The relevant part of the videotape had no sound, and hence

26 provided no evidence that anyone had shouted "everybody down."

27 Neither the videotape nor any of the still photographs showed

28 Zellner sitting.

29 B. The Rule 50(a) Motions and the Instructions to the Jury

30 Following the conclusion of Zellner's case, defendants
- 25 -

1 moved pursuant to Fed. R. Civ. P. 50(a) for judgment as a matter of

2 law, arguing (a) that Zellner had failed to present evidence that

3 was legally sufficient to support his claims, and (b) that, in any

4 event, defendants were entitled to qualified immunity. The district

5 court denied the motion. It stated, inter alia, that the matter of

6 qualified immunity needed to be briefed by both sides. (See Tr.

7 532.) And the court stated that there were factual issues to be

8 decided by the jury:

9 This case comes down to factual issues, either the

10 jury believes that the plaintiff was attacked for no

11 reason, kicked and whatever, or they believe that he

12 jumped down on the driveway to obstruct traffic.

13 That is what the issue is going to be.

14 (Id. at 621.) After the close of all the evidence, defendants

15 renewed their Rule 50(a) motion. The court again denied the motion,

16 stating "[t]here are factual issues that have to be determined by a

17 jury." (Id. at 767.)

18 During the charging conference, at which the court and the

19 parties discussed the instructions and special-verdict questions to

20 be given to the jury, defendants requested yet again that the court

21 decide their qualified immunity defense as a matter of law:

22 MS. LEAHEY [defendants' counsel]: Your Honor,

23 as to the qualified immunity issue, could you let me

24 know what your intentions are with respect to that.

25 THE COURT: Because of the factual issues, I

26 cannot make a determination until the jury makes a

27 determination.

28 MS. LEAHEY: Your Honor, I would take an

29 exception to that.

30 I would state that in the first instance

31 qualified immunity is a question of law for the

32 Court to decide--
- 26 -

1 THE COURT: It is if there are no factual

2 issues. If this occurred and the jury finds that it

3 occurred the way that the [plaintiff] say[s] it

4 occurred, there is no immunity.

5 (Tr. 801 (emphases added).) Defense counsel argued that, for the

6 court not to rule on the qualified immunity defense and not to give

7 the jury a "qualified immunity set of instructions," would be

8 "prejudicial for the defendants and not the law." (Id.) The court

9 disagreed:

10 THE COURT: It is the law, because there is a

11 factual dispute here, the factual dispute has to be

12 resolved before there can be a finding of whether or

13 not there is qualified immunity.

14 You can't do it on this record. You would not

15 get summary judgment had you had this record and

16 made this motion, because there are questions of

17 fact.

18 (Id. (emphasis added).)

19 Focusing chiefly on Zellner's claim of excessive force,

20 defendants asked the court to pose to the jury the question of

21 whether "the events surrounding plaintiff's arrest, particularly

22 grabbing him, throwing him to the ground, kicking him and twisting

23 his arm occur[red] substantially as plaintiff testified." (Id. at

24 789.) It was agreed that "as plaintiff testified" would be changed

25 to "[as] plaintiff contends," in order to encompass not just

26 Zellner's own testimony but the testimony of his witnesses as well.

27 (Id.) The court decided that it would pose these detailed factual

28 questions individually, "because if there is a verdict here, I have

29 to make a decision on qualified immunity, it's only with as much

30 information about that as I can get." (Id. at 788.)

31 Comparably detailed questions were not, however, requested
- 27 -

1 as to Zellner's conduct relating to his claims of false arrest and

2 malicious prosecution. Defendants proposed that the jury be asked

3 "did the defendants have probable cause to believe that plaintiff

4 was committing disorderly conduct by obstructing vehicular or

5 pedestrian traffic by blocking the driveway." (Tr. 790.) They

6 argued that this question "encapsulates the factual conflict in this

7 case as to false arrest, did he or did he not cause obstruction on

8 the roadway, by blocking the driveway." (Id. at 791.) The proposed

9 question, however, was a compound question, and the court elected to

10 ask the jury simply whether defendants had probable cause to believe

11 that Zellner had committed the offense of disorderly conduct or

12 resisting arrest. Defendants did not propose any simple fact

13 questions, such as whether Zellner had blocked the driveway, or sat

14 down, or yelled "everybody down."

15 The court's instructions to the jury with respect to

16 Zellner's claims of false arrest and malicious prosecution described

17 the parties' positions, in part, as follows:

18 The plaintiff contends that his Constitutional

19 right[s] were violated when . . . . he was

20 unlawfully arrested by the defendants for the

21 violation of disorderly conduct and the misdemeanor

22 crime of resisting arrest[] . . . . [a]nd . . .

23 when he was maliciously prosecuted by the defendants

24 for the violation and the misdemeanor. . . .

25 The defendants contend that . . . . there was

26 probable cause to arrest the plaintiff on both

27 charges[] . . . . [a]nd . . . there was probable

28 cause to prosecute the plaintiff on both charges and

29 this was done without malice.

30 . . . .

31 . . . [T]he defendants contend that the

32 plaintiff initiated a confrontation with Major

33 Weber, dropped to the driveway, where he sat to
- 28 -

1 obstruct entrance to the driveway by a construction

2 truck and he incited others to block the driveway.

3 When he was told he was under arrest, he resisted

4 arrest by causing his body to become limp and

5 flailing his arms and placing his arms under his

6 body when troopers attempted to handcuff him.

7 (Tr. 895-96 (emphases added).)

8 With respect to Zellner's claim of false arrest, the court

9 told the jury that "the critical question for you to decide is

10 whether the arrest of the plaintiff was lawful," and that "whether

11 the arrest was lawful centers on whether the arrest was made by the

12 defendants acting on probable cause to believe" that Zellner had

13 committed the offense of disorderly conduct or resisting arrest.

14 (Id. at 901.) The court explained, inter alia, that "[p]robable

15 cause exists when the facts and circumstances within the knowledge

16 of the police officers at the time the arrest was made were

17 sufficient to warrant a person of reasonable prudence to believe

18 that a violation or a crime had been committed by the person

19 arrested." (Id. at 902.)

20 The court read the provisions of the New York disorderly

21 conduct and resisting arrest statutes under which Zellner had been

22 charged. As to § 240.20(5), the court stated:

23 "A person is guilty of disorderly conduct when with

24 intent to cause public inconvenience, annoyance or

25 alarm or recklessly creating a risk thereof, he

26 obstructs vehicular or pedestrian traffic.["] To be

27 guilty of disorderly conduct, the perpetrator must

28 act with intent to cause public inconvenience,

29 annoyance or alarm or recklessly creating a risk

30 thereof.[]

31 Inconvenience means tampering with the

32 legitimate transaction of public business.

33 Annoyance means discomfort or vexation. Alarm means

34 sudden fear.
- 29 -

1 (Tr. 904.) As to resisting arrest, the court stated that

2 [s]ection 205.30 of the New York Penal law, insofar

3 as it is applicable to this case, reads as follows:

4 "A person is guilty of resisting arrest when he

5 intentionally prevents or attempts to prevent a

6 police officer or a peace officer from effecting an

7 authorized arrest."

8 . . . .

9 The arrest at issue must have been made in

10 accordance with the law. Namely, that it was based

11 on probable cause. Also, resisting arrest does not

12 require that the person being arrested use force or

13 violence. It is enough if he engages in his conduct

14 with the intent of preventing the officer from

15 effecting the authorized arrest of himself.

16 Accordingly, on the issue of the alleged

17 Constitutional violation, making an unlawful arrest

18 for disorderly conduct or resisting arrest, if you

19 determine that there was no probable cause to arrest

20 plaintiff on either of those charges [and that

21 defendants' actions were a proximate cause of injury

22 to Zellner], your verdict will be in favor of the

23 plaintiff and against the defendants, as to the

24 Federal Section 1983 false arrest cause of action.

25 However, if you determine that . . . there was

26 probable cause to arrest plaintiff for either

27 disorderly conduct or resisting arrest, then the

28 arrest would be lawful and your verdict must be in

29 favor of the defendants with regard to the charge of

30 false arrest.

31 . . . .

32 Also, as I instructed you, the fact that both

33 charges against the plaintiff resulted in a

34 dismissal is not evidence that the defendants lacked

35 probable cause at the time of the arrest.

36 (Id. at 905-06.)

37 In instructing the jury with respect to the claim of

38 malicious prosecution, the court described the four elements of such

39 a claim, i.e., initiation of a proceeding, termination of the

40 proceeding in the plaintiff's favor, lack of probable cause for
- 30 -

1 commencement or continuation of the proceeding, and actual malice on

2 the part of the defendants in commencing or continuing the

3 proceeding. (See Tr. 919-20.) The court instructed, inter alia,

4 that

5 [i]f probable cause existed for the police officer

6 to commence a criminal prosecution against the

7 plaintiff . . . , then the plaintiff cannot recover

8 against the defendant who initiated the criminal

9 proceeding.

10 (Id. at 922.) The court added:

11 I further instruct you that if you find that

12 the defendants did not act maliciously, your verdict

13 must be in favor of the defendants on the malicious

14 prosecution claim even though you find that they did

15 not have probable cause to believe the plaintiff

16 committed either disorderly conduct or the crime of

17 resisting arrest that was charged. Only if you find

18 that the plaintiff has proved both:

19 One, that the defendants did not have probable

20 cause to charge the plaintiff with either the

21 violation or the crime, and 

22 Two, that the defendants acted with malice,

23 will your verdict be in favor of the plaintiff

24 against the defendants.

25 (Id. at 923-24.)

26 The court gave instructions on compensatory damages and

27 reminded the jury that "throughout the case you are considering each

28 defendant separately and your verdict will be reported separately as

29 to each defendant." (Tr. 926.) The court also informed the jury

30 that if it found that Zellner was entitled to recover and further

31 found that a defendant had caused him injury maliciously or wantonly

32 or oppressively and deserved to be punished, it had discretion to

33 award Zellner punitive damages. (See Tr. 928-29.) The court

34 explained that
- 31 -

1 [a]n act or failure to act is maliciously done

2 if prompted or accompanied by ill will or spite or

3 grudge toward the injured person individually. An

4 act or failure to act is w[anton]ly done if done in

5 reckless or callous disregard of or indifferent to

6 the rights of the injured person. An act or a

7 failure to act is oppressively done if done in a way

8 or manner which injur[]es or damages or otherwise

9 violates the rights of another person with

10 unnecessary harshness or severity or by misuse or

11 abuse of authority or power or by taking advantage

12 of some weaknesses or misfortune of another person.

13 (Id. at 929.) The court stated, however, that the jury should

14 initially make a finding only as to whether punitive damages were

15 warranted, without attempting to determine an amount. (See id.)

16 C. The Jury's Verdict

17 The jury was given a special verdict sheet posing 10

18 questions, most with subparts, to be answered with respect to (a)

19 the merits of Zellner's claims against each defendant, (b) the

20 amount of compensatory damages, if any, that Zellner should receive

21 from each defendant, and (c) whether or not he should receive

22 punitive damages. As detailed below, the jury found in favor of

23 Zellner on his claims for false arrest and malicious prosecution,

24 awarding him compensatory damages in the amount of $40,000 against

25 each defendant, and found that Zellner was entitled to punitive

26 damages as well; the jury found against Zellner on his claim of

27 excessive force, although it credited his evidence that defendants

28 had grabbed him and twisted his arm.

29 The precise questions posed on the special verdict sheet,

30 and the jury's findings in response, were as follows:

31 Do you find by a preponderance of the evidence:
- 32 -

1 1. That the events surrounding plaintiff's arrest,

2 particularly grabbing him, throwing him to the

3 ground, and then striking him, kicking him, and

4 twisting his arm occurred substantially as

5 plaintiff contends?

6 Grabbing him? Yes

7 Throwing him to the ground? No

8 Striking him? No

9 Kicking him? No

10 Twisting his arm? Yes

11 2. That defendants had probable cause to believe

12 that the plaintiff was committing the violation

13 of disorderly conduct or the crime of resisting

14 arrest?

15 Disorderly conduct? No

16 Resisting arrest? No

17 3. That the defendant's acts in falsely arresting

18 him were the proximate cause of damages

19 sustained by the plaintiff?

20 Defendant Weber: Yes

21 Defendant Summerlin: Yes

22 4. That Defendant Weber took actions

23 to initiate or continue the criminal

24 prosecution against the plaintiff? Yes

25 5. That the defendant intentionally committed acts

26 that violated the plaintiff's federal

27 constitutional right not to be maliciously

28 prosecuted?

29 Defendant Weber: Yes

30 Defendant Summerlin: Yes

31 6. That the defendant's acts in maliciously

32 prosecuting him were the proximate cause of

33 damages sustained by the plaintiff?

34 Defendant Weber: Yes

35 Defendant Summerlin: Yes

36 7. That the defendant intentionally used excessive

37 force against the plaintiff when
- 33 -

1 Arresting him?

2 Defendant Weber: No

3 Defendant Summerlin: No

4 Handcuffing him?

5 Defendant Weber: No

6 Defendant Summerlin: No

7 Taking him to the police vehicle?

8 Defendant Weber: No

9 Defendant Summerlin: No

10 8. That the defendant's acts in using excessive

11 force were the proximate cause of damages

12 sustained by the plaintiff?

13 Defendant Weber: No

14 Defendant Summerlin: No

15 INSTRUCTIONS AS TO DAMAGES

16 If your verdict is in favor of both defendants

17 on all causes of action, do not answer the damages

18 questions below, cease deliberations, and the

19 foreperson should sign and date the verdict sheet

20 and advise the court by note that you are ready to

21 return to the courtroom to announce your verdict.

22 On the other hand, if you have found a verdict

23 in favor of the plaintiff on any of the causes of

24 action, please answer the appropriate damages

25 questions that follow.

26 Compensatory Damages

27 9. Please state the amount of damages, if any, you

28 award to the plaintiff for his physical

29 injuries and his pain and suffering from

30 February 25, 2000 to the present date against

31 each defendant.

32 Defendant Weber: $40,000

33 Defendant Summerlin: $40,000

34 Punitive Damages

35 You are to consider the subject of punitive

36 damages only with regard to a defendant or
- 34 -

1 defendants you have found liable on any of the

2 causes of action.

3 10. Do you award punitive damages to the plaintiff

4 against the defendant?

5 Defendant Weber: Yes

6 Defendant Summerlin: Yes

7 (November 24, 2004 Verdict Sheet ("Special Verdict").)

8 In connection with the jury's finding that Zellner should

9 receive punitive damages, the trial continued for an additional

10 half-day of testimony with respect to each defendant's financial

11 condition. Following further deliberations, the jury assessed

12 punitive damages of $5,000 against Weber and $500 against Summerlin.

13 (See November 26, 2004 Verdict Sheet-2.)

14 Judgment was eventually entered reflecting the jury's

15 verdicts.

16 D. The Posttrial Motions

17 Following the jury's verdicts, defendants renewed their

18 motion for judgment as a matter of law, pursuant to Fed. R. Civ. P.

19 50(b), arguing principally (a) that the evidence was insufficient to

20 support the jury's findings in favor of Zellner on his claims of

21 false arrest and malicious prosecution and its award of punitive

22 damages, and (b) that the officers were protected by qualified

23 immunity. Defendants also moved in the alternative for a new trial

24 on the ground, inter alia, that the court should have allowed them

25 to present evidence at trial as to facts that would have given them

26 probable cause to arrest Zellner on other charges.

27 Zellner opposed defendants' motions and moved pursuant to
- 35 -

1 Fed. R. Civ. P. 59(a) for a new trial on his excessive force claim.

2 In support of his motion, Zellner argued principally that the jury

3 should have been instructed that if it found in his favor on the

4 false arrest claim it must also find that the force used to effect

5 the arrest was excessive.

6 In an opinion dated September 6, 2005, reported at 399

7 F.Supp.2d 154, the district court granted defendants' motion for

8 judgment as a matter of law dismissing Zellner's false arrest and

9 malicious prosecution claims only on the ground of qualified

10 immunity; and it denied Zellner's motion for a new trial on his

11 excessive force claim. In rejecting defendants' challenge to the

12 sufficiency of the evidence on the issue of probable cause, the

13 court stated as follows:

14 Defendants argue that they had probable cause

15 to arrest Plaintiff based on the fact that he

16 intentionally blocked the truck as it was attempting

17 to enter the construction site, which Defendants

18 argue is incontrovertibly shown by the videotape,

19 and initiated a confrontation with Weber during this

20 tense standoff by urging Weber to hold off on taking

21 any action until the protective order arrived in a

22 manner that was "obstructive and distracting, in

23 view of the imminent crisis posed by the truck."

24 However, the video itself was not conclusive as to

25 what happened when the truck attempted to turn into

26 the site, and the testimony at trial was

27 contradictory, with Plaintiff and members of the

28 Shinnecock tribe testifying that Plaintiff did not

29 obstruct the path of the truck but merely engaged

30 Weber in conversation in an attempt to maintain the

31 status quo until the restraining order arrived. The

32 jury was free to consider all of the evidence and to

33 weigh the credibility of the witnesses. In deciding

34 in Plaintiff's favor on the false arrest claim, the

35 jury found Plaintiff's account of the events worthy

36 of more credence. This Court cannot now re-weigh

37 the conflicting evidence or draw its own conclusions

38 as to the credibility of the witnesses at trial, for

39 to do so would be to substitute the Court's judgment

40 for that of the jury, which is not permitted. Smith
- 36 -

1 v. Lightning Bolt Prods., Inc., 861 F.2d 363, 367

2 (2d Cir.1988). Thus, the Court finds that there is

3 sufficient evidence to sustain the jury's finding

4 that Plaintiff's arrest was not based on probable

5 cause.

6 399 F.Supp.2d at 157-58 (emphases added).

7 In denying defendants' challenge to the sufficiency of the

8 evidence on Zellner's malicious prosecution claim, the court stated

9 as follows:

10 Defendants argue that Plaintiff failed to

11 demonstrate that the officers lacked probable cause

12 to initiate the prosecution and that they harbored

13 malice towards Plaintiff. As discussed above, there

14 was evidence adduced at trial to support the jury's

15 verdict that Defendants lacked probable cause to

16 arrest Plaintiff and there was no suggestion that

17 Defendants thereafter obtained further evidence

18 giving them probable cause to believe Plaintiff was

19 guilty of the crimes charged against him. . . .

20 With respect to malice, the Second Circuit has held

21 that where "a jury could find that probable cause

22 for the charges against the plaintiff[] was lacking

23 . . . that finding alone would support an inference

24 of malice." Ricciuti v. New York City Transit

25 Auth., 124 F.3d 123, 131 (2d Cir.1997). Thus, the

26 Court will not disturb the jury's finding that

27 Defendants acted without probable cause and with

28 malice in prosecuting Plaintiff.

29 399 F.Supp.2d at 158. In addition, the court also ruled, inter

30 alia, that defendants' challenge to the jury's award of punitive

31 damages was without merit, noting that "[p]unitive damages are

32 available in section 1983 cases where 'the defendant's conduct is

33 shown to be motivated by evil motive or intent, or when it involves

34 reckless or callous indifference to the federally protected rights

35 of others.'" Id. at 162 (quoting Smith v. Wade, 461 U.S. 30, 56

36 (1983)). The court found that the award of punitive damages here

37 was supported by the jury's findings and the evidence, and that the

38 amounts awarded were within the range found reasonable in similar
- 37 -

1 cases. See 399 F.Supp.2d at 162-63.

2 As to defendants' entitlement to qualified immunity, the

3 court, after noting that it was required, on defendants' motion for

4 judgment as a matter of law, to view the evidence in the light most

5 favorable to Zellner, stated as follows:

6 The evidence presented at trial . . . established

7 the following events leading up to Plaintiff's

8 arrest: (1) there was a large crowd of demonstrators

9 at the construction site who had been there for

10 several hours; (2) the demonstrators were instructed

11 by the police to stay off of the road and the

12 driveway allowing ingress to and egress from the

13 site; (3) a construction truck arrived on the scene

14 and the driver indicated his intention to enter the

15 site through the driveway by turning on his blinker;

16 (4) the truck remained immobile in the road for

17 nearly five minutes, blocking traffic completely

18 from at least one direction; (5) while the truck was

19 stopped in the road, demonstrators, including

20 children, walked and ran around it; (6) Plaintiff

21 walked into the driveway and turned to face the road

22 where the truck was waiting; (7) Plaintiff engaged

23 Weber in conversation and urged Weber not to take

24 any action until a restraining order, which was

25 expected, arrived, to which Weber responded that the

26 road needed to remain clear; and (8) at some point

27 Plaintiff made a crouching or squatting motion

28 towards the ground.

29 Id. at 159 (emphasis added). "[C]onsider[ing] all of these events

30 in context in deciding whether it would have been clear to a

31 reasonable officer that there was no probable cause to arrest

32 Plaintiff for disorderly conduct," id., the court concluded as

33 follows:

34 It is apparent from the record that Defendants were

35 faced with a tense situation for the several minutes

36 when the construction truck was attempting to enter

37 a construction site flanked on all sides by

38 protestors and their children. It is further clear

39 that Plaintiff's actions in engaging Major Weber in

40 conversation at that point, thereby distracting his

41 attention from the situation, and in making some

42 sort of movement that could have been interpreted as
- 38 -

1 an attempt to sit down in the path of the truck,

2 only exacerbated the situation. Thus, while

3 Defendants may have acted without justifiable cause

4 in arresting Plaintiff, the Court cannot say that

5 their "judgment was so flawed that no reasonable

6 officer would have made a similar choice." Lennon

7 v. Miller, 66 F.3d 416, 424-25 (2d Cir.1995); see

8 also Hunter v. Bryant, 502 U.S. 224, 229, 112 S.Ct.

9 534, 116 L.Ed.2d 589 (1991) ("The qualified immunity

10 standard 'gives ample room for mistaken judgments'

11 by protecting 'all but the plainly incompetent or

12 those who knowingly violate the law.'") (quoting

13 Malley v. Briggs, 475 U.S. 335, 341, 343, 106 S.Ct.

14 1092, 89 L.Ed.2d 271 (1986)). Thus, the Court finds

15 that Defendants are entitled to qualified immunity

16 on the false arrest and malicious prosecution

17 charges.

18 399 F.Supp.2d at 159-60 (emphases added).

19 Zellner, in his Rule 59(a) motion for a new trial, argued

20 principally that the jury should have been instructed that if it

21 found in his favor on the false arrest claim, it must also find in

22 his favor on the excessive-force-during-arrest claim, because if the

23 arrest was unlawful no force whatever could be justified. For that

24 proposition, Zellner relied on Atkins v. New York City, 143 F.3d 100

25 (2d Cir. 1998). The district court denied this motion for three

26 reasons. First, Zellner had not requested such an instruction.

27 Second, the court concluded that Atkins was not intended to be so

28 read. Third, the court stated that defendants would in any event be

29 entitled to qualified immunity on the excessive force claim as well.

30 See 399 F.Supp.2d at 163-65.

31 A new final judgment was entered dismissing all of

32 Zellner's claims against Weber and Summerlin. This appeal followed.
- 39 -

1 II. DISCUSSION

2 On appeal, Zellner contends principally that, in ruling

3 that defendants are entitled to judgment as a matter of law on the

4 basis of qualified immunity with respect to his false arrest and

5 malicious prosecution claims, the district court impermissibly made

6 findings of fact and ignored facts found by the jury. He also

7 contends that the court should have granted his motion for a new

8 trial with respect to his excessive force claim, on the theory that

9 the jury should have been instructed that if his arrest was

10 unauthorized, the use of any force by the officers was excessive as

11 a matter of law.

12 Defendants contend, inter alia, that the entry of judgment

13 as a matter of law in their favor should be upheld on the ground

14 that they had either actual or "arguable" probable cause to arrest

15 Zellner for disorderly conduct in violation of § 240.20(5) of the

16 New York Penal Law as charged, or to arrest him under subsections

17 (6) and (7) of that section or under N.Y. Penal Law § 195.05

18 (McKinney 1999) (see defendants' brief on appeal at 29-31). They

19 state that "the question here is whether the evidence establishes

20 that, despite the jury's conclusion that Defendants lacked probable

21 cause to arrest Zellner for disorderly conduct or resisting arrest,

22 it was nonetheless reasonable for Defendants to believe they had

23 probable cause to arrest Zellner for any charge." (Defendants'

24 brief on appeal at 29 (emphasis in original).)

25 As to the false arrest and malicious prosecution claims,

26 we conclude that, in light of the jury's findings and the principles
- 40 -

1 (a) that factual disputes are to be resolved by the jury, and (b)

2 that on a motion for judgment as a matter of law the record must be

3 viewed in the light most favorable to the party opposing the motion,

4 the granting of judgment as a matter of law in favor of defendants

5 was error. As to the excessive force claim, we see no error in the

6 district court's denial of Zellner's motion for a new trial.

7 A. Judgment as a Matter of Law on the Basis of Qualified Immunity

8 1. Qualified Immunity

9 Qualified immunity shields government officials performing

10 discretionary functions "from liability for civil damages insofar as

11 their conduct does not violate clearly established statutory or

12 constitutional rights of which a reasonable person would have

13 known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see, e.g.,

14 Mitchell v. Forsyth, 472 U.S. 511, 524 (1985); Coons v. Casabella,

15 284 F.3d 437, 440-41 (2d Cir. 2002) ("Coons"); Cerrone v. Brown, 246

16 F.3d 194, 199 (2d Cir. 2001) ("Cerrone"). Where the right at issue

17 in the circumstances confronting police officers--here, the right

18 not to be subjected to a warrantless arrest without probable cause--

19 was clearly established but was violated, the officers will

20 nonetheless be entitled to qualified immunity "if . . . it was

21 objectively reasonable for them to believe their acts did not

22 violate those rights." Oliveira v. Mayer, 23 F.3d 642, 648 (2d Cir.

23 1994) ("Oliveira"), cert. denied, 513 U.S. 1076 (1995); see, e.g.,

24 Anderson v. Creighton, 483 U.S. 635, 639-40 (1987). The qualified

25 immunity test is an objective one. "[I]f officers of reasonable

26 competence could disagree" as to whether probable cause existed,
- 41 -

1 "immunity should be recognized." Malley v. Briggs, 475 U.S. 335,

2 341 (1986). But "if, on an objective basis, it is obvious that no

3 reasonably competent officer would have concluded that" probable

4 cause existed, "[d]efendants will not be immune . . . ." Id.

5 Whether a defendant officer's conduct was objectively

6 reasonable is a mixed question of law and fact. See, e.g., Kerman

7 v. City of New York, 374 F.3d 93, 109 (2d Cir. 2004) ("Kerman");

8 Lennon v. Miller, 66 F.3d 416, 420-21 (2d Cir. 1995) ("Lennon");

9 Oliveira, 23 F.3d at 649-50; Warren v. Dwyer, 906 F.2d 70, 76 (2d

10 Cir.) ("Warren"), cert. denied, 498 U.S. 967 (1990). The ultimate

11 question of whether it was objectively reasonable for the officer to

12 believe that his conduct did not violate a clearly established

13 right, i.e., whether officers of reasonable competence could

14 disagree as to the lawfulness of such conduct, is to be decided by

15 the court. However, "[a] contention that--notwithstanding a clear

16 delineation of the rights and duties of the respective parties at

17 the time of the acts complained of--it was objectively reasonable

18 for the official to believe that his acts did not violate those

19 rights 'has its principal focus on the particular facts of the

20 case.'" Kerman, 374 F.3d at 109 (quoting Hurlman v. Rice, 927 F.2d

21 74, 78-79 (2d Cir. 1991)); see, e.g., Oliveira, 23 F.3d at 649-50.

22 If there is no dispute as to the material historical

23 facts, the matter of whether the officer's conduct was objectively

24 reasonable is an issue of law to be determined by the court. See,

25 e.g., Lennon, 66 F.3d at 421; Robison v. Via, 821 F.2d 913, 921 (2d

26 Cir. 1987). "[I]f there is such a dispute," however, "the factual

27 questions must be resolved by the factfinder." Kerman, 374 F.3d at
- 42 -

1 109; see, e.g., Oliveira, 23 F.3d at 649; Calamia v. City of New

2 York, 879 F.2d 1025, 1036 (2d Cir. 1989).

3 Once the jury has resolved any disputed facts that are

4 material to the qualified immunity issue, the ultimate determination

5 of whether the officer's conduct was objectively reasonable is to be

6 made by the court. See, e.g., Stephenson v. Doe, 332 F.3d 68, 81

7 (2d Cir. 2003) (after the district court receives "the jury['s]

8 . . . deci[sion as to] what the facts were that the officer faced or

9 perceived," the court then may "make the ultimate legal

10 determination of whether qualified immunity attaches on those facts"

11 (internal quotation marks omitted) (emphasis added)); Lennon, 66

12 F.3d at 421 (the ultimate question of entitlement to qualified

13 immunity is one of law for the court to decide "[o]nce disputed

14 factual issues are resolved" (internal quotation marks omitted));

15 Warren, 906 F.2d at 76 ("If there are unresolved factual issues

16 which prevent an early disposition of the defense, the jury should

17 decide these issues . . . . The ultimate legal determination

18 whether . . . a reasonable police officer should have known he acted

19 unlawfully" should be made by the court "on the facts found" by the

20 jury.); accord id. at 76, 77 (Winter, J., dissenting) (Although "the

21 ultimate decision regarding the qualified immunity defense is for

22 the court," "the court [that is] ruling on the qualified immunity

23 issue must know what the facts were that the officer faced or

24 perceived, and the finding of those facts appears to be a matter for

25 the jury.").

26 Qualified immunity is an affirmative defense. See Gomez

27 v. Toledo, 446 U.S. 635, 640 (1980).
- 43 -

1 [B]ecause qualified immunity is an affirmative

2 defense, it is incumbent upon the defendant to

3 plead, and adequately develop, a qualified immunity

4 defense during pretrial proceedings so that the

5 trial court can determine . . . which facts material

6 to the qualified immunity defense must be presented

7 to the jury to determine its applicability once the

8 case has gone to trial.

9 Blissett v. Coughlin, 66 F.3d 531, 538 (2d Cir. 1995) (emphasis

10 added). To the extent that a particular finding of fact is

11 essential to a determination by the court that the defendant is

12 entitled to qualified immunity, it is the responsibility of the

13 defendant to request that the jury be asked the pertinent question.

14 See, e.g., id. If the defendant does not make such a request, he is

15 not entitled to have the court, in lieu of the jury, make the needed

16 factual finding. See, e.g., Kerman, 374 F.3d at 120; see also

17 Warren, 906 F.2d at 76 ("the jury should decide these issues on

18 special interrogatories").

19 2. Probable Cause and "Arguable" Probable Cause

20 Probable cause to arrest exists when the officers have

21 knowledge of, or reasonably trustworthy information as to, facts and

22 circumstances that are sufficient to warrant a person of reasonable

23 caution in the belief that an offense has been or is being committed

24 by the person to be arrested. See, e.g., Dunaway v. New York, 442

25 U.S. 200, 208 n.9 (1979); Wong Sun v. United States, 371 U.S. 471,

26 479 (1963); Brinegar v. United States, 338 U.S. 160, 175-76 (1949);

27 Carroll v. United States, 267 U.S. 132, 161-62 (1925); Lee v.
- 44 -

1 Sandberg, 136 F.3d 94, 102 (2d Cir. 1997). Probable cause is to be

2 assessed on an objective basis. "Whether probable cause exists

3 depends upon the reasonable conclusion to be drawn from the facts

4 known to the arresting officer at the time of the arrest."

5 Devenpeck v. Alford, 543 U.S. 146, 152 (2004). "[A]n arresting

6 officer's state of mind (except for the facts that he knows) is

7 irrelevant to the existence of probable cause. See Whren v. United

8 States, 517 U.S. 806, 812-813 (1996) (reviewing cases); Arkansas v.

9 Sullivan, 532 U.S. 769 (2001) (per curiam)." Devenpeck, 543 U.S. at

10 153 (emphasis added). Thus, an officer's "subjective reason for

11 making the arrest need not be the criminal offense as to which the

12 known facts provide probable cause," id.; an arrest is not unlawful

13 so long as the officer has knowledge of, or reasonably trustworthy

14 information as to, facts and circumstances sufficient to provide

15 probable cause to believe that the person arrested has committed any

16 crime, see, e.g., id. at 155; Jaegly v. Couch, 439 F.3d 149, 154 (2d

17 Cir. 2006) ("[A] plaintiff is not entitled to damages under § 1983

18 for false arrest so long as the arrest itself was supported by

19 probable cause, regardless of whether probable cause supported any

20 individual charge identified by the arresting officer at the time of

21 arrest.").

22 The existence of probable cause need not be assessed on

23 the basis of the knowledge of a single officer. 

24 [A]n arrest . . . is permissible where the actual

25 arresting or searching officer lacks the specific

26 information to form the basis for probable cause or

27 reasonable suspicion but sufficient information to

28 justify the arrest or search was known by other law

29 enforcement officials initiating or involved with

30 the investigation.
- 45 -

1 United States v. Colon, 250 F.3d 130, 135 (2d Cir. 2001); see, e.g.,

2 United States v. Hensley, 469 U.S. 221, 230-33 (1985). This

3 principle, known as the collective or imputed knowledge doctrine,

4 recognizes that, "in light of the complexity of modern police work,

5 the arresting officer cannot always be aware of every aspect of an

6 investigation; sometimes his authority to arrest a suspect is based

7 on facts known only to his superiors or associates." United States

8 v. Valez, 796 F.2d 24, 28 (2d Cir. 1986), cert. denied, 479 U.S.

9 1067 (1987); see, e.g., United States v. Colon, 250 F.3d at 135.

10 Where it has been conceded or established that the

11 officers arrested the plaintiff without a warrant and without

12 probable cause, the question raised by the qualified immunity

13 defense is whether it was objectively reasonable for the officers to

14 believe they did have probable cause. Referring to this standard as

15 "arguable" probable cause, we have stated that

16 [a]rguable probable cause exists when "a reasonable

17 police officer in the same circumstances and

18 possessing the same knowledge as the officer in

19 question could have reasonably believed that

20 probable cause existed in the light of well

21 established law." Lee v. Sandberg, 136 F.3d 94, 102

22 (2d Cir.1997) (internal quotation marks omitted).

23 Cerrone, 246 F.3d at 202-03 (emphasis in original); see also

24 Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004) ("Arguable

25 probable cause exists 'if either (a) it was objectively reasonable

26 for the officer to believe that probable cause existed, or

27 (b) officers of reasonable competence could disagree on whether the

28 probable cause test was met.'" (quoting Golino v. City of New Haven,

29 950 F.2d 864, 870 (2d Cir. 1991))).

30 Although the tests for probable cause and arguable
- 46 -

1 probable cause are thus not congruent, see, e.g., Anderson v.

2 Creighton, 483 U.S. at 640-41, the concept of probable cause is the

3 same in both inquiries. "Probable cause existed if 'at the moment

4 the arrest was made . . . the facts and circumstances within the[

5 officers'] knowledge and of which they had reasonably trustworthy

6 information were sufficient to warrant a prudent man in believing'

7 that [the suspect] had violated" the law, Hunter v. Bryant, 502 U.S.

8 224, 228 (1991) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964))

9 (emphasis ours); and an officer sued under the Fourth Amendment for

10 false arrest is "entitled to immunity if a reasonable officer could

11 have believed that probable cause existed," Hunter, 502 U.S. at 228

12 (emphasis added). Accordingly, like the probable cause analysis,

13 the analysis of a qualified immunity defense to claims that official

14 actions were taken without probable cause "entails an inquiry into

15 the facts known to the officer at the time of the arrest," Coons,

16 284 F.3d at 441. "A court must evaluate the objective

17 reasonableness of the appellants' conduct 'in light of . . . the

18 information the . . . officers possessed.'" Cerrone, 246 F.3d at

19 202 (quoting Anderson v. Creighton, 483 U.S. at 641).

20 "'Arguable' probable cause" must "not be misunderstood to

21 mean 'almost' probable cause." Jenkins v. City of New York, 478

22 F.3d 76, 87 (2d Cir. 2007).

23 The essential inquiry in determining whether

24 qualified immunity is available to an officer

25 accused of false arrest is whether it was

26 objectively reasonable for the officer to conclude

27 that probable cause existed. See Anderson[ v.

28 Creighton], 483 U.S. at 644 . . . . There should be

29 no doubt that probable cause remains the relevant

30 standard. If officers of reasonable competence

31 would have to agree that the information possessed
- 47 -

1 by the officer at the time of arrest did not add up

2 to probable cause, the fact that it came close does

3 not immunize the officer.

4 Jenkins v. City of New York, 478 F.3d at 87 (emphasis added); see

5 also Cerrone, 246 F.3d at 202-03 (arguable probable cause focuses on

6 the objectively reasonable belief of "a reasonable police officer in

7 the same circumstances and possessing the same knowledge as the

8 officer in question" (internal quotation marks omitted)).

9 3. The Standard for Judgment as a Matter of Law

10 In considering a motion for judgment as a matter of law,

11 the district court

12 must draw all reasonable inferences in favor of the

13 nonmoving party, and it may not make credibility

14 determinations or weigh the evidence. . . .

15 "Credibility determinations, the weighing of the

16 evidence, and the drawing of legitimate inferences

17 from the facts are jury functions, not those of a

18 judge." . . . Thus, although the court should

19 review the record as a whole, it must disregard all

20 evidence favorable to the moving party that the jury

21 is not required to believe.

22 Reeves v. Sanderson Plumbing, 530 U.S. 133, 150-51 (2000) (quoting

23 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)) (emphases

24 ours). Thus, a court may grant a motion for judgment as a matter of

25 law "only if it can conclude that, with credibility assessments made

26 against the moving party and all inferences drawn against the moving

27 party, a reasonable juror would have been compelled to accept the

28 view of the moving party." Piesco v. Koch, 12 F.3d 332, 343 (2d

29 Cir. 1993) (emphasis added). In ruling on a such motion, the court
- 48 -

1 must bear in mind that the jury is free to believe part and

2 disbelieve part of any witness's testimony. See, e.g., Fiacco v.

3 City of Rensselaer, 783 F.2d 319, 325 (2d Cir. 1986), cert. denied,

4 480 U.S. 922 (1987); see also Haywood v. Koehler, 78 F.3d 101, 105

5 (2d Cir. 1996) (jurors are "free to accept bits of testimony from

6 several witnesses and to make reasonable inferences from whatever

7 testimony they credit[]").

8 Incontrovertible evidence relied on by the moving party,

9 such as a relevant videotape whose accuracy is unchallenged, should

10 be credited by the court on such a motion if it so utterly

11 discredits the opposing party's version that no reasonable juror

12 could fail to believe the version advanced by the moving party. See

13 Scott v. Harris, 127 S. Ct. 1769, 1775-76 (2007) (so holding with

14 respect to proceedings on summary judgment); see generally Reeves,

15 530 U.S. at 150 ("the standard for granting summary judgment

16 'mirrors' the standard for judgment as a matter of law, such that

17 'the inquiry under each is the same'" (quoting Anderson v. Liberty

18 Lobby, Inc., 477 U.S. at 250-51)).

19 The court is not permitted to find as a fact a proposition

20 that is contrary to a finding made by the jury. See, e.g., Smith v.

21 Lightning Bolt Productions, Inc., 861 F.2d 363, 367 (2d Cir. 1988)

22 (court "cannot . . . substitute its judgment for that of the jury"

23 (internal quotation marks omitted)); see also Leblanc-Sternberg v.

24 Fletcher, 67 F.3d 412, 430 (2d Cir. 1995) ("In ruling on the motion

25 by [one codefendant] for judgment as a matter of law, . . . the

26 court was required to view the evidence in the light most favorable

27 to the [individual] plaintiffs"; "whatever its own view of the facts
- 49 -

1 may have been, the court was not entitled to substitute its view for

2 adequately supported findings that were implicit in the jury's

3 verdict" against another defendant.), cert. denied, 518 U.S. 1017

4 (1996). Nor is the court permitted to make findings on factual

5 questions not submitted to the jury where those findings take the

6 evidence in the light most favorable to the moving party, rather

7 than the opposing party. See, e.g., Kerman, 374 F.3d at 120.

8 We review de novo the district court's decision on a

9 motion for judgment as a matter of law. In so doing, we apply the

10 same standard that is required of the district court. We "consider

11 the evidence in the light most favorable to the party against whom

12 the motion was made and . . . give that party the benefit of all

13 reasonable inferences that the jury might have drawn in his favor

14 from the evidence." Black v. Finantra Capital, Inc., 418 F.3d 203,

15 209 (2d Cir. 2005) (internal quotation marks omitted). We

16 "disregard all evidence favorable to the moving party that the jury

17 is not required to believe." Reeves, 530 U.S. at 151.

18 4. The Record in the Present Case

19 In the present case, defendants seek to defend the

20 district court's decision granting them qualified immunity as a

21 matter of law by asserting that they had actual or arguable probable

22 cause to arrest Zellner (a) for disorderly conduct in violation of

23 N.Y. Penal Law § 240.20(5), as charged, and (b) for other violations

24 not charged, to wit, disorderly conduct in violation of subsections

25 (6) and (7) of § 240.20 and obstructing the troopers' functioning in

26 violation of Penal Law § 195.05. We conclude, applying the above
- 50 -

1 principles, that the record does not support qualified immunity on

2 any of these bases.

3 a. Disorderly Conduct As Charged, § 240.20(5)

4 In support of probable cause or arguable probable cause

5 for Zellner's arrest on the actual charge of violating § 240.20(5),

6 which involves obstruction of traffic, defendants state principally

7 that after the truck arrived, "Zellner walked into the crowd that

8 was in the direct path of the truck" (Defendants' brief on appeal at

9 33); that "Zellner deliberately started to sit down . . . and

10 shouted for everybody else to do so" (id. at 7); and that during his

11 conversation with Major Weber, Zellner crouched, squatted, or made

12 some other movement toward the ground (see id. at 35, 40) "that

13 reasonably could have been interpreted as an attempt to sit down in

14 the path of the truck" (id. at 35). These contentions impermissibly

15 disregard the evidence and the jury's verdict.

16 First, defendants' assertion that "Zellner walked into the

17 crowd that was in the direct path of the truck" (Defendants' brief

18 on appeal at 33) is unaccompanied by any supporting citation.

19 Moreover, if we draw all inferences in Zellner's favor, as we must,

20 the record does not support the contention that Zellner was actually

21 and immediately blocking the truck. Reverend Davis testified that

22 Zellner was not with the group that was standing in front of the

23 truck but rather was away from the road. (See Tr. 78.) And

24 although the videotape shows that Zellner walked into a group of
- 51 -

1 people standing in and around the driveway, it is impossible to tell

2 whether he was in the truck's direct path at any time.

3 Second, although Major Weber and the troopers who

4 testified at trial stated that Zellner had sat down on the ground,

5 and some of the troopers testified that Zellner had yelled for

6 everyone else to sit as well, the jury's rejection of that testimony

7 is implicit in its finding that defendants failed to show that they

8 had probable cause for Zellner's arrest for disorderly conduct. The

9 evidence taken in the light most favorable to Zellner--as we are

10 required to view it, and the jury was at liberty to view it--was

11 that Zellner introduced himself to Major Weber, and the two shook

12 hands; that, in a quiet and respectful manner, Zellner said that he

13 understood that a restraining order requiring cessation of the

14 construction work was on the way; that he requested of Major Weber

15 that the troopers not take any further action until the restraining

16 order arrived; and that Zellner said he hoped that there would be

17 evenhanded treatment of everyone. Some 20-30 seconds into this

18 conversation, while literally still speaking to Major Weber, Zellner

19 was grabbed from behind, pulled backwards away from Weber, and

20 pulled and pushed to the ground.

21 Zellner and his witnesses testified that Zellner did not

22 sit down and that he did not attempt to sit down. Zellner did not

23 yell "everybody down" to the crowd even once, much less two or three

24 times as Major Weber testified. Zellner did not yell anything. The

25 protestors who testified at trial, some of whom were close enough to

26 touch Zellner before he was grabbed by the troopers, did not hear

27 him yell anything. Even Trooper Parker, standing right behind
- 52 -

1 Zellner and slightly to his right, did not hear him yell anything.

2 Plainly the jury was not required to accept the defense version that

3 Zellner sat down on the ground or that he yelled for anyone else to

4 sit down.

5 Nor is there merit in defendants' assertion, invoking the

6 district court's findings, that "[d]uring []his conversation" with

7 Major Weber (Defendants' brief on appeal at 35), Zellner made a

8 "'crouching or squatting motion towards the ground'" or otherwise

9 "made 'some sort of movement that could have been interpreted as an

10 attempt to sit down in the path of the truck'" (id. at 40 (quoting

11 district court opinion, 399 F.Supp.2d at 159) (emphasis ours)). The

12 contention that defendants are entitled to qualified immunity on

13 this basis is flawed for a number of reasons.

14 First, no trooper could make the "interpret[ation]"

15 hypothesized above, unless Zellner actually made a crouching,

16 squatting, or other downward movement. Absent such a movement,

17 there was nothing for the troopers to interpret. Whether or not

18 Zellner made any such movement, however, was a question of fact.

19 "The court . . . found that some motion was made" (Defendants' brief

20 on appeal at 41), which obviously was a factual finding. But making

21 findings of fact and drawing factual inferences "'are jury

22 functions, not those of a judge.'" Reeves, 530 U.S. at 150 (quoting

23 Anderson v. Liberty Lobby, Inc., 477 U.S. at 255).

24 Second, as to any act that defendants contended Zellner

25 performed, and which they wished to argue provided either probable

26 cause or arguable probable cause for his arrest, it was incumbent on

27 defendants to have the jury decide whether Zellner in fact performed
- 53 -

1 that act. Defendants did not request that the court include in the

2 special verdict sheet any fact-specific question as to the conduct

3 in which Zellner engaged, including whether he sat down on the

4 ground, or made a crouching or squatting motion, or made any

5 movement toward the ground. No such question having been put to the

6 jury (and answered favorably to defendants), no movement by Zellner

7 such as crouching or squatting was established as a fact. The court

8 was not entitled to provide the missing factual finding unless the

9 inference the court drew was one that the jury would have been

10 compelled to draw.

11 No inference that Zellner made such a movement was

12 compelled in this case. Defendants argue that the court's finding

13 that Zellner made a "'crouching or squatting motion'" or some other

14 such movement "'towards the ground'" was "appropriate" because "the

15 jury rejected Zellner's assertion that he was thrown to the ground."

16 (Defendants' brief on appeal at 40 (quoting district court opinion,

17 399 F.Supp.2d at 159).) This contention disregards the record, the

18 verdict, and the principles discussed in Part II.A.3. above.

19 Although the jury found that Zellner did not establish that he was

20 "throw[n] . . . to the ground" (Special Verdict Answer 1 (emphasis

21 added)), Zellner had testified that he was "face-to-face with Major

22 Weber" when he "was grabbed from behind, pulled backwards and down"

23 (Tr. 380) and that he "was grabbed from behind and pushed down" (id.

24 at 345). Reverend Davis testified to her observation that Zellner

25 was taken to the ground by "4 troopers touching him." (Id. at 58.)

26 The photograph introduced as PX 19D, in which Zellner's body is at

27 a 45-degree angle to the ground, shows four troopers touching
- 54 -

1 Zellner: Summerlin and Parker having hold of his arms, with most of

2 their body mass behind Zellner; Drew with his hand on Zellner's back

3 (see Tr. 678); and Major Weber with his left arm fully extended,

4 leaning toward Zellner with his hand on Zellner's right shoulder.

5 Zellner and Reverend Davis testified that PX 19D shows the precise

6 point at which Zellner had been grabbed and was being taken to the

7 ground, and the positions and postures of all the persons shown in

8 that picture are entirely consistent with the testimony that Zellner

9 was grabbed from behind and was pulled and pushed to the ground.

10 The jury found "[t]hat the events surrounding plaintiff's arrest,

11 particularly grabbing him, . . . occurred substantially as plaintiff

12 contends" (Special Verdict Answer 1 (emphasis added)). Zellner's

13 being "grabbed from behind and pushed" and "pulled" down is not

14 inconsistent with the finding that he had not been subjected to the

15 more violent action of being "throw[n]" down.

16 Further, the evidence contradicts the proposition that

17 Zellner crouched, squatted, or otherwise moved downward in a way

18 that could reasonably have been interpreted as an attempt to sit

19 down. All of the troopers who testified at trial testified that

20 Zellner dropped to the ground and actually sat. Major Weber, who

21 was standing 6-8 inches from Zellner, testified that Zellner

22 "dropped to the ground" (Tr. 134) "in a split second" (id. at 135).

23 No trooper testified that Zellner, instead of actually sitting, had

24 made a crouching, squatting, or other motion that could have been

25 interpreted as an attempt to sit. Having discredited the troopers'

26 actual testimony that Zellner in fact sat, the jury was not required

27 to infer that Zellner had instead made some lesser movement that no
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1 trooper described.

2 Moreover, consistent with the absence of any testimony by

3 the troopers that Zellner had crouched, squatted, or made any other

4 such movement, Zellner's witnesses testified that Zellner was simply

5 standing there when he was grabbed by the troopers. Wright

6 testified that Zellner was "standing," doing "[n]othing." (Tr.

7 318.) Reverend Davis testified to her observation that, other than

8 drinking coffee, "he wasn't doing anything." (Id. at 58.) And

9 Gumbs, when asked what Zellner "was doing with his body" before he

10 was grabbed, testified that Zellner "was standing there," not

11 "sitting or anything else." (Id. at 307 (emphasis added).)

12 The factual proposition that Zellner had made some

13 movement that could reasonably have been interpreted as an attempt

14 to sit in the path of the truck is thus inconsistent with the

15 evidence and is a proposition that the jury, even if asked, would

16 not have been required to accept--especially in light of its

17 conclusions that the version of the facts presented by the troopers

18 was not credible and that defendants' treatment of Zellner warranted

19 the imposition of punitive damages.

20 In sum, as the jury was entitled to credit Zellner's

21 testimony and that of his witnesses that he had done nothing but

22 stand and talk to Major Weber when he was grabbed and pushed and

23 pulled down by the troopers, the jury was not compelled--and hence

24 the court was not permitted--to find that Zellner had made some

25 downward movement on his own. Without the fact of such a movement,

26 there was nothing for defendants to interpret in a way that gave

27 them even arguable probable cause.
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1 We note that it is not entirely clear that the district

2 court found that the "crouching or squatting motion" it attributed

3 to Zellner occurred during his conversation with Major Weber, for

4 the court stated that that movement was made "at some point," 399

5 F.Supp.2d at 159. And defendants seem to suggest that two such

6 motions are shown in a seven-second segment of the videotape before

7 Zellner and Major Weber met. (See, e.g., Defendants' brief on

8 appeal at 6 (Zellner "bent down twice . . . and then walked forward

9 to talk to Major Weber").) There are two principal problems with

10 such an interpretation. First, that segment of the videotape shows

11 Zellner bending forward (to put his coffee mug down briefly while he

12 closed his coat, Zellner testified), not making a squatting or a

13 crouching motion. Second, even if bending forward could reasonably

14 be considered a squatting or a crouching motion, there is no

15 evidence in the record that any trooper, at the time of Zellner's

16 arrest, was aware of that motion. The trooper who had been

17 instructed by Major Weber to activate the video camera did not

18 testify at trial; there is thus no evidence that the camera was

19 manned and that the events it captured on tape were seen by that

20 trooper contemporaneously. Nor did any of the troopers who

21 testified at trial claim to have seen Zellner's bending movement.

22 Although Major Weber testified at trial that he interpreted

23 Zellner's bending forward as practicing sitting down and instructing

24 the crowd on how to sit down (see Tr. 118-20), Major Weber plainly

25 did not see that movement when it occurred. Zellner's bending

26 motion occurred at 13:19:20 to 13:19:26 on the videotape, which was

27 several minutes before Zellner and Major Weber met. Major Weber
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1 testified that he first saw Zellner when the two were just five feet

2 apart, and their conversation ensued immediately. (See id. at 172.)

3 Major Weber's first inkling that Zellner had ever bent down came

4 upon his viewing the videotape at trial. (See Tr. 120 ("I believe

5 after seeing this video that was a practice run . . . .") (emphasis

6 added).) As discussed in Part II.A.2. above, however, the existence

7 of both probable cause and arguable probable cause must be assessed

8 on the basis of "the facts known to the officer[s] at the time of

9 the arrest," Coons, 284 F.3d at 441; see, e.g., Hunter, 502 U.S. at

10 228; Anderson v. Creighton, 483 U.S. at 641; Cerrone, 246 F.3d at

11 202. Zellner's action in bending to put his coffee mug down and

12 then to pick it up, which no trooper claimed to have seen, provided

13 no basis for a finding of either probable cause or arguable probable

14 cause.

15 b. Disorderly Conduct Under §§ 240.20(6) and (7) 

16 Defendants' contention that they had probable cause or

17 arguable probable cause to arrest Zellner for violating two

18 uncharged subsections of New York's disorderly conduct statute fares

19 no better. Those subsections provide that "[a] person is guilty of

20 disorderly conduct when, with intent to cause public inconvenience,

21 annoyance or alarm, or recklessly creating a risk thereof," 

22 6. He congregates with other persons in a

23 public place and refuses to comply with a lawful

24 order of the police to disperse; or

25 7. He creates a hazardous or physically

26 offensive condition by any act which serves no

27 legitimate purpose.

28 N.Y. Penal Law §§ 240.20(6), (7) (emphases added).
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1 As to subsection (6), defendants do not cite to any

2 evidence in the record to show that Zellner was given any order

3 within the scope of § 240.20(6). Zellner testified that he was not

4 ordered to do anything. Reverend Davis, who was standing no more

5 than 10 feet away from Zellner and Major Weber while they were

6 conversing, testified that she did not hear any of the troopers

7 given Zellner an order. Major Weber did not testify that he or any

8 other trooper gave Zellner an order, and the other troopers did not

9 testify that they gave Zellner any order. The record does not

10 support the contention that there was probable cause--or that any

11 reasonably competent trooper could have concluded that there was

12 probable cause--to arrest Zellner for violating subsection (6).

13 As to subsection (7)--"creat[ing] a hazardous . . .

14 condition by any act which serves no legitimate purpose"--

15 defendants' probable cause and arguable probable cause contentions

16 are doubly flawed. First, defendants point to no evidence to

17 support a reasonable belief that Zellner himself created any

18 "hazardous condition." They assert in their brief on appeal that

19 after the pickup truck arrived at the demonstration site and began

20 to make a left turn into the driveway, "Zellner walked into the

21 crowd that was in the direct path of the truck" (Defendants' brief

22 on appeal at 33). However, as discussed in the preceding section,

23 that characterization of Zellner's actions is contradicted by the

24 testimony of Reverend Davis and by the videotape showing Zellner

25 moving away from the road.

26 Second, we cannot say, based on the record before us, that

27 a reasonable officer could have believed that Zellner's conversation
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1 with Major Weber "serve[d] no legitimate purpose." We must accept

2 as true Zellner's testimony that he was quietly and respectfully

3 conveying information to the officer in charge as to the imminent

4 arrival of a court injunction to halt the continuation of

5 construction and was asking for patient and evenhanded treatment in

6 the interim. The initiation of such a 20-or 30-second conversation

7 by the co-chair of the Town's Anti-Bias Task Force plainly has a

8 legitimate purpose, and no reasonably competent officer could have

9 concluded otherwise.

10 c. Interference With a Governmental Function, § 195.05

11 Section 195.05 of the Penal law, invoked by defendants in

12 their posttrial motion and on this appeal, provides in part that

13 [a] person is guilty of obstructing governmental

14 administration when he intentionally obstructs,

15 impairs or perverts the administration of law or

16 other governmental function or prevents or attempts

17 to prevent a public servant from performing an

18 official function, by means of . . . interference

19 . . . .

20 N.Y. Penal Law § 195.05. Defendants suggest that they would have

21 had probable cause or arguable probable cause to arrest Zellner

22 under this section for "intentionally obstruct[ing], impair[ing] or

23 perverting the State Troopers' ability to manage the situation."

24 (Defendants' brief on appeal at 36-37 (internal quotation marks

25 omitted).) They argue that

26 even if Zellner did not make a movement that

27 reasonably could have been interpreted as an attempt

28 to sit down, it would not have been unreasonable for

29 an officer to believe that he had probable cause to

30 arrest Zellner based on: (1) the increasingly

31 dangerous situation with a crowd of people causing a

32 truck to stop on a two-lane public road and children
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1 standing, walking, and running near the truck and

2 the road; (2) Zellner's apparent influence on the

3 crowd; and (3) Zellner's interference with Major

4 Weber's ability to control the situation by engaging

5 Major Weber at the moment he was trying to diffuse

6 [sic] the situation, standing in a way that forced

7 Major Weber to turn his back on the road, and urging

8 Major Weber not to take any action.

9 (Defendants' brief on appeal at 37.) The record does not include

10 sufficient evidence to support these assertions.

11 First, as noted above, the record does not establish that

12 Zellner himself was in the truck's direct path. No matter how tense

13 that situation, defendants were not entitled to arrest Zellner

14 unless there was probable cause to believe that Zellner had broken

15 the law. Second, there was no evidence at trial as to Zellner's

16 influence--or apparent influence--on the crowd. Major Weber

17 testified that he did not recognize Zellner as one of the protestors

18 (see Tr. 172); and there was no evidence in the record that any of

19 the troopers had knowledge or information sufficient to give them a

20 reasonable belief that Zellner had influence over the protestors.

21 Third, there was no evidence that Zellner's conversation with Major

22 Weber--lasting 20-30 seconds by Major Weber's own account--

23 interfered with the police function in any way. Major Weber

24 indicated that he had some 20 troopers on the scene (see Tr. 96);

25 Weber himself was giving orders to a captain who was marshaling the

26 troopers to deal with the truck, and the captain "proceeded to try

27 to get the truck[] in." (Id. at 134.) Reverend Davis testified

28 that when the crowd around the truck was ordered to disperse, it did

29 so. (See Tr. 80.) In the meantime, Major Weber embarked on a

30 thorough explanation to Zellner as to the builders' desire to "leave
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1 the scene to go to other projects for the next thirty days," and

2 their "need[ for] some of their equipment," for "construction

3 projects," and that the purpose of the incoming truck was "to refuel

4 equipment so they could leave" (id. at 133-34), an explanation whose

5 expansiveness suggests that the troopers did not have a reasonable

6 belief that Zellner was interfering with the performance of their

7 duties.

8 On the existing record, it would not be objectively

9 reasonable for any reasonably competent officer to believe that the

10 initiation by the co-chair of the Town's Anti-Bias Task Force of a

11 20- or 30-second conversation with the major in charge of a highly

12 structured team of some 20 troopers, respectfully informing the

13 major of the imminent arrival of an injunction and asking for

14 patience and evenhanded treatment until its arrival, constitutes an

15 obstruction of governmental administration.

16 B. Zellner's Rule 59 Motion for a New Trial

17 Zellner contends that the district court erred in denying

18 his motion for a new trial on his excessive force claim. In that

19 motion, Zellner argued, citing Atkins v. New York City, 143 F.3d

20 100, that the jury should have been instructed that if it found he

21 had been arrested without probable cause, it must find that any

22 force used by defendants in the course of that arrest was excessive

23 and thus must return a verdict in his favor on the excessive force

24 claim. The district court denied the motion on the principal

25 grounds that Zellner had not requested such an instruction and that

26 Atkins was not intended to stand for that proposition. We agree
- 62 -

1 with these rulings.

2 Zellner's Initial Request for Jury Instructions, filed

3 November 11, 2004, did not request such an instruction, and we have

4 not seen any indication in the record that Zellner filed a

5 subsequent request. Although Zellner asserts on appeal that he "had

6 made known his views regarding Atkins" (Zellner's brief on appeal at

7 40 n.7), he cites only a letter from his attorney and a statement at

8 the charging conference. The letter, however, cites Atkins only as

9 supporting Zellner's "opposition to Defendants' 50(a) Motion, made

10 during trial on November 18, 2004." (Letter from Zellner's counsel

11 to the court dated November 19, 2004.) At the cited pages of the

12 charging conference, Zellner's counsel stated, somewhat cryptically,

13 that "[t]he issue there, Judge, is whether or not, if indeed there

14 was or was not probable cause, any force was reasonable or

15 unreasonable." (Tr. 544.) Counsel then proceeded to state that,

16 "[i]f indeed there was no basis for the arrest, and if indeed the

17 jury finds that there was no probable cause for the arrest, any form

18 of force would be unauthorized (id. at 545). However, we do not see

19 anywhere in the colloquy a request that the jury be so instructed or

20 any citation to Atkins.

21 Further, Atkins does not stand for the proposition that

22 Zellner attributes to it. In Atkins, the jury found both that the

23 plaintiff had been arrested without probable cause and that the

24 officers had used excessive force in the arrest; however, the jury

25 awarded only nominal damages despite undisputed evidence of serious

26 injury. We ruled that where the jury has found a constitutional

27 violation and there is no genuine dispute that the violation
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1 resulted in some injury to the plaintiff, the plaintiff is entitled

2 as a matter of law to an award of compensatory damages. See, e.g.,

3 Kerman, 374 F.3d at 124 (describing Atkins). Although there is

4 language in the Atkins opinion to the effect that, given the absence

5 of probable cause there was never a time when the use of force was

6 lawful, see Atkins, 143 F.3d at 103, the fact is that the jury in

7 Atkins had found that excessive force was used, and we have ruled

8 that the opinion does not stand for the proposition that in the

9 absence of probable cause for an arrest, any force that was used in

10 making the arrests was excessive, see Papineau v. Parmley, 465 F.3d

11 46, 62 (2d Cir. 2006).

12 Accordingly, the district court properly denied Zellner's

13 motion for a new trial on his excessive force claim.

14 CONCLUSION

15 We have considered all of the parties' arguments in

16 support of their respective positions on this appeal and, except for

17 concluding that the district court erred in granting judgment as a

18 matter of law in favor of defendants on the basis of qualified

19 immunity, we have found them to be without merit. For the reasons

20 stated above, we affirm so much of the judgment as dismissed

21 Zellner's claim alleging the use of excessive force. We reverse so

22 much of the judgment as dismissed his § 1983 claims against Major

23 Weber and Trooper Summerlin for false arrest and malicious

24 prosecution, and we remand for entry of an amended judgment

25 reinstating the jury's verdict with respect to those claims, and for
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1 such further proceedings as may be appropriate.

2 Zellner is also entitled to recover costs, including a

3 reasonable attorney's fee, see 42 U.S.C. § 1988, in connection with

4 the portion of this appeal as to which he is the prevailing party,

5 see, e.g., Cohen v. West Haven Board of Police Commissioners, 638

6 F.2d 496, 506 (2d Cir. 1980); the amount is to be determined by the

7 district court.